“We chose to defy the law”: reflections on South Africa, Australia and Derrida

This essay considers how Jacques Derrida’s critical reflection of South Africa’s apartheid, outlined in his paper The Laws of Reflection,[1] can be applied to Australia. Like South Africa during the apartheid, Australia’s Migration Act 1958 (Cth) ensures the systemic persecution of non-white populations. The Migration Act, like apartheid, was founded upon a policy of white supremacy and racism, known as the White Australia Policy. Both constitutions (like, perhaps all constitutions) were founded upon violence. What then, would Derrida say about Australia’s laws? And how can one, like Mandela whom Derrida so admires, use the law as a ‘weapon to turn against the oppressors’?[2]

The Australian Constitution: founded upon violence

In The Laws of Reflection, Derrida considers whether South Africa’s apartheid laws can be critiqued through analysing South Africa’s foundation:

Mandela reminds us, in fact, of the truth: the establishment of this constitutional law had not only, both in fact and in practice, taken the form of a singular coup de force, but this violent act at once produced and presupposed the unity of a nation.[3]

Likewise, Australia’s constitution was founded upon similarly violent acts: the genocide of indigenous populations,[4] and the erroneous belief that the territory of Australia was terra nullius.[5] The Australian Constitution, like South Africa,[6] also intentionally silenced the indigenous people of the land, preventing them from recognition and participation.

Does this, therefore, mean that all laws of Australia are illegitimate? On one hand, Derrida seems to imply this:

In the case of South Africa, certain “conventions” were not respected, the violence was too great, visibly too great, at a moment when this visibility extended to a new international scene, and so on. The white community was too much in the minority, the disproportion of wealth too flagrant. From then on this violence remains at once excessive and powerless, insufficient in its result, lost in its own contradiction. It cannot manage to have itself forgotten, as in the case of states founded on a genocide or quasi-extermination. Hence, the violence of the origin must repeat itself indefinitely and act out its rightfulness in a legislative apparatus whose monstrosity fails to pay back: a pathological proliferation of judicial prostheses (laws, acts, amendments) destined to legalize to the slightest detail the effects of fundamental racism, of a state racism, the unique and last in the world.[7]

This paragraph could equally be said of Australia. The founding violence and racism of the Australian Constitution continued with the introduction of the White Australia policy and continues today with the Migration Act.

The Migration Act: the continuation of violence

In a symbolic statement about the importance of immigration controls in the new federation, the first enactment of the Australian Commonwealth was the Immigration Restriction Act 1901 (Cth), a piece of legislation which described itself as: ‘An Act to place certain restrictions on immigration and provide for the removal from the Commonwealth of prohibited immigrants’. This legislation formed the cornerstone of Australia’s ‘White Australia Policy’, a policy which remained until the 1970s.

In 1958, Immigration Restriction Act 1901 was replaced by the Migration Act 1958 (Cth). The 1958 Migration Act introduced a general system of landing permits, allowing Australia to regulate the intake of migrants.[8] This control was further regulated from 1 November 1979 with the introduction of visa requirements for all non-citizens.[9] Australia is still the only country to impose a universal visa requirement for all non-citizens.[10]

Section 42(1) of Australia’s Migration Act 1958 provides that ‘a non-citizen must not travel to Australia without a visa that is in effect.’[11] Non-citizens who are in Australia without a valid visa must be detained until they are granted a visa or are deported,[12] a provision which has resulted in indefinite detention for those who are not granted a visa and who cannot be deported.[13] Section 198AHA gives the executive power to take non-citizens to third countries for ‘regional processing’, a power which has been used to indefinitely detain refugees in Nauru and Manus Island, where violence and abuse are daily occurrences.[14]

Thus, while the White Australia policy has been dismantled, a systemic form of exclusion and control on non-citizens remains in its place. From its foundation to today, Australian law continues to legitimise state violence against those who are not white.

A reflection on The Laws of Reflection

What then, would Derrida say about Australian law? The systemic abuse permitted, or in fact required, by the Migration Act can be seen as a continuation of the violence in the foundation of Australia. Law in fact, is nothing more than power, founded by violence, and upheld by violence. This power is the outward expression of a political will, legitimised through a parliamentary process which is designed to serve the interest of political class.

How then, can one challenge this power? For this, Derrida turns to the example of Nelson Mandela. Mandela, on one hand, was equally critical of the political system of South Africa: ‘I would say, Sir, that it is the Government, its administration of the law, which brings the law into such contempt and disrepute that one is no longer concerned in this country to stay within the letter of the law.’[15] Mandela, as a lawyer, still respected the law, and had great admiration for the Western principles of democracy, human rights, and equality before the law.

In fact, Mandela attempted to use these principles to turn the law against itself. Mandela used these principles to critique the laws of apartheid. This is the only way lawyers in Australia have been able to challenge Australia’s migration laws. Through the principles of procedural fairness, natural justice and the rule of law, many High Court challenges have challenged the power of the Australian Government to detain and deport refugees. Without a Bill of Rights, the only available challenge to the Migration Act is through these common law principles.

However, the legislature has sought to remove all such appeals to procedural fairness from the Migration Act. The Migation Act specifically excludes natural justice from certain parts, such as the Fast Track Process, while other sections gives the Minister non-delegable, non-compellable and non-reviewable powers to detain a person, grant them a visa, or cancel a visa.[16]

Every time a challenge to the Migration Act succeeds, the Legislature rushes through new legislation in order to circumvent a challenge or retrospectively amend the Migration Act to ensure its policies of detention and exclusion remain legal. This occurred when the Malaysian Solution Case successfully prevented the transfer of 400 refugees to Malaysia, on the basis that they would not be afforded protection from persecution (Plaintiff M70/2011 v Minister for Immigration and Citizenship 2011). The Labor Government subsequently introduced the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) to reverse the effects of the decision.

This trend of introducing legislation to circumvent litigation continued in the cases CPCF v Minister for Immigration and Border Protection, concerning interception and detention at sea, and Plaintiff M68/2015 v Minister for Immigration and Border Protection, which challenged the Government’s financing and control over the Nauru detention centre. In both cases, legislation was passed before the High Court could come to a decision, to retrospectively ensure the Government’s actions remained legal under Australian law.

These examples highlight the failure of appealing to the ‘law of the law’ in challenging government power. While attempts to turn the law against itself by appealing to common law principles is worthwhile, the Parliament’s desire to circumvent the courts through retrospective legislation leaves one wondering if such attempts are futile.

Conclusion: In Defense of Civil Disobedience

With limited success at challenging Australian laws through the courts, what action is left for refugee activist?

Noting Mandela’s (at that time) failure to successfully challenge apartheid, Derrida ends his paper with a defense of civil disobedience. Quoting Mandela:

I would say that the whole life of any thinking African in this country drives him continuously to a conflict between his conscience on one hand and the law on the other… The law as it is applied, the law as it has been developed over a long period of history, and especially the law as it is written and designed by the Nationalist Government, is a law which, in our view, is immoral, unjust, and intolerable. Our consciences dictate that we must protest against it, that we must oppose it, and that we must attempt to alter it.[17]

This same response is needed in Australia. As litigation and appeals to the rule of law have failed, the only action left is protest. As Mandela, we find ourselves at a similar crossroad:

All lawful modes of expressing opposition to this principle had been closed by legislation, and we were placed in a position in which we had either accept a permanent state of inferiority, or to defy the Government. We chose to defy the law.[18]


[1] Jacques Derrida, ‘The Laws of Reflection: Nelson Mandela, In Admiration’ in Jacques Derrida and Mustapha Tlili (eds), For Nelson Mandela (Seaver Books, 1987) 13.

[2] Ibid 29.

[3] Ibid 17.

[4] Colin Tatz, ‘Confronting Australian Genocide’ (2001) 25 Aboriginal History 16. The term ‘genocide’ ‘means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group’:

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, entered into force 12 January 1951, 78 UNTS 277 art 2. In my view, the violence against aboriginal communities met, and continues to meet, this definition.

[5] David Ritter, ‘The Rejection of Terra Nullius in Mabo: A Critical Analysis’ (1996) 18 Sydney Law Review 5.

[6] Derrida, above n 1, 19.

[7] Ibid 18.

[8] James Jupp, From White Australia to Woomera: The Story of Australian Immigration (Cambridge University Press, 2002) 148 <http://ezproxy.lib.monash.edu.au/login?url=http://www.monash.eblib.com.au/EBLWeb/patron/?target=patron&extendedid=P_218266_0&gt;.

[9] Ibid. Before 1994 New Zealand nationals were exempt from visa requirements. Changes in 1994 meant that New Zealand citizens must obtain a visa upon arrival in Australia.

[10] Savitri Taylor, ‘Offshore Barriers to Asylum Seeker Movement: The Exercise of Power without Responsibility?’ in Jane McAdam (ed), Forced Migration, Human Rights And Security (2008) 94.

[11] Migration Act 1958 (Cth) s 42.

[12] Ibid s 189.

[13] Al-Kateb v Godwin (2004) 219 CLR 562 (‘Al-Kateb’); Joyce Chia, ‘Back to the Constitution: The Implications of Plaintiff S4/2014 for Immigration Detention’ (2015) 38 University of New South Wales Law Journal 628.

[14] Madeline Gleeson, Offshore: Behind the Wire on Manus and Nauru (NewSouth Publishing, 2016).

[15] Derrida, above n 1, 32.

[16] ‘Traditional Rights and Freedoms—Encroachments by Commonwealth Laws’ (129, Australian Law Reform Commission, 13 January 2016) [14.46] <https://www.alrc.gov.au/publications/laws-exclude-procedural-fairness&gt;.

[17] Derrida, above n 1, 39.

[18] Ibid 40.

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