A Foucauldian Critique of Australia’s Border Controls

Introduction

Borders have become commonplace throughout the world. It is taken for granted that a person will usually require a visa and passport in order to travel across borders, and that their identity, personal details and biodata will be recorded. However, borders, and the legislation underpinning them, play a significant role in shaping and controlling both citizens and non-citizens. This essay will attempt to critique border control legislation through the lens of Michel Foucault’s concepts of ‘surveillance’ and ‘governmentality’. As a point of reference, Australia’s Migration Act 1958 (Cth) will be critiqued.

Surveillance

Australia’s geography places it in a unique position to control all immigration and emigration. As it is ‘girt by sea’, all regular entry and exit must take place at either a shipping port or an airport. Section 43 of the Migration Act requires all visa holders to enter via a port, in essence ensuring the monitoring and control of all migration. Failure to do so renders the visa invalid.[1] Australia is also the only country to impose a universal visa requirement for all non-citizens.[2] Non-citizens who are in Australia without a valid visa must be detained until they are granted a visa or are deported,[3] a provision which has resulted in indefinite detention for those who are not granted a visa and who cannot be deported.[4]

Through this system Australia is able to place significant control and surveillance over its borders. This has been further expanded through technologies of surveillance, such as the collection and sharing of biodata with partner countries.[5] In 2004, the Australian Parliament passed the Migration Legislation Amendment (Identification and Authentication) Act 2004 (Cth). This Act amended the Migration Act 1958 (Cth) to allow for the collection of personal identifiers from non-citizens, including fingerprints and handprints; photographs or other images of the face and shoulders; weight and height measurements; audio or video recordings; signatures and iris scans, and other items.[6] This data in shared with other partner nations and cross-referenced to identify any undesirable applicants.[7]

Foucault considered the role that surveillance plays in his book Discipline and Punish.[8] Drawing upon Bentham’s panopticon, Foucault instructs the reader to imagine a prison cell with tall walls and bright lights that allows the prisoners to be watched, without them knowing whether or not they are the subject of such surveillance. The person under surveillance is reduced to ‘a state of conscious and permanent visibility that assures the automatic functioning of power’.[9] This all-encompassing surveillance, without the knowledge of such surveillance, forces the prisoners to become their own guards:

He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he becomes the principle of his own subjection.[10]

Foucault notes that this example can be applied, and has been applied, to many populations: patients in a hospital; ‘madmen’ in an asylum; schoolchildren and workers.[11] However, the mass-surveillance of migrants under Australia’s migration system can also be seen in this light. The concept of ‘crimmigration’ can also be applied here – migrants are viewed as potential criminals.[12] The requirements to provide fingerprints and other bio-data, when other Australians do not, places them on a separate category and pre-judges them as criminals. This securitisation of migration is not unique to Australia, but is taking place throughout the global north, and indeed the world.

As explained by Foucault’s panopticism theory, migrants must then regulate their own conduct (e.g. their work or daily life activities) in order to comply with their visa requirements. Further, both citizens and non-citizens are encouraged to ‘dob in’ those who may be in breach of their visa requirements, such as those who are working additional hours than their visa provides. The Department of Immigration and Border Protection provides a specialised dob-in line for this purpose.[13]

In addition, migrants are further categorised and surveilled in accordance with their deemed utility in Australia. Those on a skilled visa, especially permanent visas, are less regulated, while those seeking asylum in Australia are heavily monitored. Not only may they be indefinitely detained if the Minister deems it in the public interest, but those in the community must also adhere to a stricter set of rules of social conduct than other Australians. This is seen in the ‘Code of Behaviour’ which every asylum seeker must sign before being released into the community.[14]

Requirements in the Code of Behaviour include prohibitions on any ‘anti-social or disruptive activities that are inconsiderate, disrespectful or threaten the peaceful enjoyment of other members of the community.’[15] The Code defines anti-social activities as actions that are ‘against the order of society’, and may include spitting or swearing in public, or other actions that people might find offensive. As Vogl and Methven argue, these requirements characterise asylum seekers ‘as racialised, uncivilised, social deviants who threaten ‘the peaceful enjoyment of other members of the community’ and ‘constructs asylum seekers as potential criminals’.[16] Thus the Code of Behaviour, combined with a constant threat of surveillance leads asylum seekers to constantly monitor and control their behaviour. This type of surveillance and control relates to the second Foucauldian critique of Australia’s migration system – Foucault’s theory of ‘governmentality’.

Governmentality

Governmentality refers to the way a Government exercises control over its population. The example, for instance, of Australia’s asylum policies, can be viewed as a form of power and control, and thus can be critiqued in this light. As discussed, one way of controlling a population is through the politics of fear and securitisation. This dominant securitisation discourse, Bigo explains can be viewed as a form of ‘governmentality based on mistrust and fear of the uninvited other’.[17] A ‘post 9/11 world’ has seen the global north respond to migration with a ‘law and order’[18] approach.

Governmentality can also refer to the way a people respond to such power. The Australian community in many ways has self-accepted this form of Government power. It is often taken for granted that migrants should be monitored, that detention centres must exist, and that non-citizens represent something to fear. In this way, it is not only migrants who self-perform the role of the guard, but every Australian is said to ‘be alert’ and report ‘security threats’. Such ‘visibility’ in the Foucauldian sense, is played out in the media on a daily basis – through news broadcasts, tabloid papers and popular TV shows such as ‘Border Security’. Through this, the Government is able to shape both the citizen and the non-citizen. Citizens become vigilant border guards while migrants self-regulate their conduct to ensure compliance.

The lens of governmentality also reveals another role that borders and border controls also play in shaping populations. Borders have always sought to define the people group – to include citizens and exclude those deemed undesirable.[19] However, with the increase use of migration legislation, technologies of surveillance and military-led border controls, the demarcation between outsider and insider is more heavily regulated than ever.

Another form of governmentality is the way the Australian Government seeks to regulate and modulate the behaviour of potential asylum seekers. By developing a range of extraterritorial border controls, including offshore processing, boat turnbacks and interception measures, the Government seeks to ‘deter’ those who would seek to claim protection on its shores. Through this, we can see the role that law plays in controlling people’s choices and movements. By making laws that provide harsh deterrent, the law seeks to manipulate people into certain conduct, thereby ‘voluntarily’ choosing not to seek asylum in Australia.

The end goal in this form of governmentality is the Assisted Voluntary Returns, which Australia funds in countries of asylum and transit. By making the Australian route to safety closed off, and by denying any chance of safety elsewhere in the region, asylum seekers and refugees have no other choice but to accepted the offer of assistance to return home.[20] This is conducted under the guise of voluntary choice, yet Australia’s visa system ensures that such recipients of this program indeed have no other choice.

Conclusion

This essay has attempted to critique the way the Migration Act monitors and regulates migrants. In a Foucauldian sense, one can see how border legislation can shape and control populations – both those inside and out. First, the Australian Government performs surveillance on all migrants, by requiring that every person hold a valid visa and collecting biodata on all visa applicants. Second, the Government further monitors asylum seekers by detaining them or requiring them to adhere to a strict code of behaviour. Such example form the growing critique of the inter-relation between immigration law and criminal law, known as crimmigration.

Further, the Australian Government performs its governmentality role by securitising migration and creating fear in the populace. This co-opts citizens to play the role of security gaurds and ensure compliance from migrants. Finally, the Australian Government regulates the compliance of asylum seekers outside of Australia by coercing compliance through a deterrence framework. BY highlighting these forms of governmentality, it provides space for further critique of Australian practices through a Foucauldian analysis.

[1] Migration Act 1958 (Cth) s 173.

[2] 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.

[3] Migration Act 1958 (Cth) s 189.

[4] 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.

[5] Department of Immigration and Border Protection, 2014 – 2015 Annual Report (2015) 51 <https://www.border.gov.au/ReportsandPublications/Documents/annual-reports/DIBP-Annual-Report-2014-15-optimised.pdf&gt;.

[6] Explanatory Memorandum, Migration Legislation Amendment (Identification and Authentication) Bill 2004 (Cth) [7].

[7] Department of Immigration and Border Protection, above n 5, 50.

[8] Michel Foucault, Discipline and Punish: The Birth of the Prison (Vintage Books, 1977) 200–204.

[9] Ibid 201.

[10] Ibid 202–203.

[11] Ibid 203.

[12] Michael Welch, ‘The Sonics of Crimmigration in AustraliaWall of Noise and Quiet Manoeuvring’ (2012) 52(2) The British Journal of Criminology 324; Juliet P Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power’ <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=935547&gt;.

[13] https://www.border.gov.au/about/contact/immigration-and-citizenship-online-report

[14] Anthea Vogl and Elyse Methven, ‘We Will Decide Who Comes to This Country, and How They Behave’ (2015) 40(3) Alternative Law Journal 175; Elyse Methven and Anthea Vogl, ‘Regulating Asylum Seeker Behaviour’ (2016) 28(2) Legaldate 8.

[15] Methven and Vogl, above n 14, 9.

[16] Vogl and Methven, above n 14, 179.

[17] Jennifer Hyndman and Alison Mountz, ‘Another Brick in the Wall? Neo-Refoulement and the Externalization of Asylum by Australia and Europe’ (2008) 43(02) Government and Opposition 249, 254; Didier Bigo, ‘Security and Immigration: Toward a Critique of the Governmentality of Unease.’ (2002) 27 Alternatives 63.

[18] Dean Wilson, ‘Biometrics, Borders and the Ideal Suspect’ in Sharon Pickering and Leanne Weber (eds), Borders, Mobility and Technologies of Control (Springer Science & Business Media, 2006) 88.

[19] W Walters, ‘Border/Control’ (2006) 9(2) European Journal of Social Theory 187, 198.

[20] Ishan Ashutosh and Alison Mountz, ‘Migration Management for the Benefit of Whom? Interrogating the Work of the International Organization for Migration’ (2011) 15(1) Citizenship Studies 21; Emma Larking, ‘Controlling Irregular Migration in the Asia-Pacific: Is Australia Acting against Its Own Interests?’ (2017) 4(1) Asia & the Pacific Policy Studies 85; F Webber, ‘How Voluntary Are Voluntary Returns?’ (2011) 52(4) Race & Class 98; Anne McNevin, Antje Missbach and Deddy Mulyana, ‘The Rationalities of Migration Management: Control and Subversion in an Indonesia-Based Counter-Smuggling Campaign’ (2016) 10(3) International Political Sociology 223.

Five quotes from the Turnbull-Trump call show the folly of Australia’s refugee policy

Asher Hirsch, Monash University

The Washington Post’s leaked transcript of a January phone call between President Donald Trump and Prime Minister Malcolm Turnbull highlights the failure of Australia’s deal with the US to take refugees from offshore processing centres on Nauru and Manus Island.

It also reveals Turnbull’s desperation not to let people who came by boat settle in Australia.

The refugee deal was made in the dying days of the Obama administration. Trump, upon assuming office, tweeted his dismay over it:

 

Here are a few of the key issues revealed in the leaked transcript.

Turnbull: ‘You can decide to take them or to not take them after vetting. You can decide to take 1,000 or 100. It is entirely up to you.’

Turnbull’s comments highlight a key fault with the US deal.

Throughout the call, Turnbull reiterates that the only obligation on the US under this deal is to consider taking refugees. Trump asks:

Suppose I vet them closely and I do not take any?

Turnbull responds:

That is the point I have been trying to make.

The transcript highlights concerns that the deal could end up with the US deciding not to take any refugees from Manus Island and Nauru. A key question for the Turnbull government is what its plan is for the rest of the people left to languish indefinitely.

The harms of offshore processing are well known. Accommodation standards, facilities and services in the detention centres remain well below international standards. There have been consistent and alarming reports of abuse (sexual and otherwise). There has been one murder and six other deaths from inadequate medical care in offshore detention centres.

Turnbull: ‘We will then hold up our end of the bargain’

During the conversation, Turnbull highlighted that in exchange for the US taking people from Manus Island and Nauru:

We will then hold up our end of the bargain by taking in our country 31 [inaudible] that you need to move on from.

This is a reference to the commitment the Turnbull government made in 2016 to resettle in Australia an unspecified number of Central American refugees currently residing in a camp in Costa Rica. This aspect of the deal still remains unclear, with the transcript “inaudible” during this key moment.

Although the Turnbull government strenuously denied the deal was a “people swap”, it has been cast as a quid-pro-quo arrangement, whereby the Australian government can publicly maintain its unwavering commitment to an offshore detention policy that is no longer sustainable.

Turnbull: ‘The people – none of these people are from the conflict zone. They are basically economic refugees from Iran, Pakistan and Afghanistan.’

This statement highlights either wilful ignorance or blatant deceitfulness by Turnbull in an attempt to sell our responsibility to the US.

The Department of Immigration and Border Protection’s statistics show that of the 2,235 people on Manus Island and Nauru who have been assessed, almost 80% have been found to be persecuted refugees.

The term “economic refugee” is also a misnomer. Those found to be refugees are people fleeing persecution, based on who they are or what they believe.

By telling Trump these people are “basically economic refugees”, Turnbull also misrepresents the ongoing persecution and conflict that people from these countries are experiencing daily.

Trump: ‘What is the thing with boats? Why do you discriminate against boats?’

Trump raises a good point about Australia’s “discrimination against boats”.

The UN Special Rapporteur on the Human Rights of Migrants has highlighted Australia inhumane and discriminatory policies directed at boat arrivals. This includes mandatory and prolonged detention, as well as indefinite separation from families, restrictions on social services, and no access to citizenship.

Trump: ‘I hate taking these people. I guarantee you they are bad. That is why they are in prison right now.’

Trump’s insistence that the people detained by Australia on Manus Island and Nauru “are bad” – which Turnbull did not contest – demonstrates the disdain and lack of understanding common to both the Australian and US governments with respect to forced displacement.

The notion of immigration detention being akin to “prison” underscores the punitive nature of the Turnbull government’s approach to people desperately seeking asylum – a description Turnbull fails to rebut.

Trump’s repeated attempts to draw a link between genuine refugees and terrorism are deeply troubling. ASIO Director-General Duncan Lewis has said no such link exists. In Australia and the US, both the media and the government have used this misleading narrative to justify the persecution of refugees and asylum seekers.

What next?

Ultimately, the transcript reveals that Australia maintains control and power over the centres – essentially highlighting that Manus Island and Nauru are Australia’s responsibility.

As Turnbull said:

They have been under our supervision for over three years now and we know exactly everything about them.

As Australia maintains responsibility for these people, we must ensure their safety and dignity. As the transcripts reveal, the US deal may amount to nothing.

The ConversationA decade ago, the Howard government faced the same question of what to do with hundreds of refugees on Nauru and Manus Island who had nowhere else to go. John Howard eventually realised the only option was to bring them to Australia. Turnbull must do the same – and quickly.

Asher Hirsch, PhD Student, Monash University

This article was originally published on The Conversation. Read the original article.

Forgetting its roots: Israel and asylum seekers

Some migrants in Israel and their employers are reeling from the effects of a new measure targeting Africans who entered the country illegally. Under the so-called deposit law, an Anti-Infiltration Law amendment that took effect May 1, African asylum seekers must deposit 20 percent of their wages into a fund they can access only upon leaving the country. In addition, their employers are required to deposit 16 percent of the asylum seekers’ pension allowances into the same fund.

Founded as a haven for Jews fleeing persecution, Israel has been far less welcoming to non-Jewish Africans seeking asylum. The country has approved fewer than 1 percent of all asylum applications since signing the 1951 UN Refugee Convention in 1954. Starting in the mid-2000s, large numbers of Eritrean and Sudanese migrants began entering Israel via Egypt, fleeing authoritarian regimes at home. As the numbers swelled, Israeli authorities became overwhelmed, and the government found it difficult to accommodate the new arrivals. Many were held in a detention center in the Israeli desert, and were subsequently given temporary visas and allowed to work.

The new law is just the latest development in Israel’s ongoing efforts to push out African asylum seekers, whom it considers “infiltrators.” By 2013, with tensions running high between migrants and Israelis, the country began implementing policies to stop African inflows and make life difficult for the roughly 55,000 already there. It completed a wall along its border with Egypt, which Prime Minister Benjamin Netanyahu—whose supporters have referred to the migrants as “a cancer”—credits for blocking 99 percent of would-be African arrivals. Next, Israel began pressuring asylum seekers to relocate to a third country, giving them $3,500 in cash upon departure and promising them asylum once they arrive in either Rwanda or Uganda. Several thousand signed up, only to be led by smugglers on a shadowy journey through African borderlands—with no safety or legal status in sight.

The lack of welcome may be working: More than 3,200 Eritrean and Sudanese asylum seekers left the country in 2016. The deposit law is likely to make life even more difficult for the tens of thousands of Africans still in Israel, who largely fill service jobs in restaurants and hotels. Businesses complain their labor costs will rise as a result of the provision, and aid groups say it has caused an uptick in asylum seekers being fired. With their limited access to public health care services contingent upon employment, those who lose their jobs can find themselves in very difficult straits.

The government maintains its actions are meant to benefit migrants, and that it is acting within the framework of international law. Meanwhile, lawyers and human-rights organizations are challenging the deposit law and relocation policy in court. For now, it appears the Africans will remain unwelcome in their would-be home.

From the Migration Policy Institute.

Would Peter Dutton pass his own citizenship test?

This article was originally published on Right Now.

According to the Immigration Department’s “Australian values statement” proposed for new citizens, “respect for the rule of law” is a fundamental Australian value. But such respect is missing from our Minister for Immigration’s latest political volley.

Peter Dutton already holds god-like status in the pantheon of Australia’s political class. Not content with blanketing Australia’s offshore gulags in secrecy, threatening two years jail should a worker in these human warehouses report the sexual abuse of a child, or playing gatekeeper on the lives of those who come to Australia seeking safety, Dutton is now seeking further draconian powers.

Dutton is seeking a broad set of discretionary powers that would give him the ability to decide whether someone is eligible to become a member of the Australian citizenry. The latest Bill introduced into Parliament would give the Minister draconian powers to refuse someone’s application for citizenship or cancel a person’s citizenship, if he determines it is in the “public interest”. The Minister has the discretion to decide what is in the “public interest” and even the Administrative Appeals Tribunal could not overturn his decision.

The Bill also provides Dutton with sole powers to decide whether a person has “displayed behaviour consistent with Australian values”, even when they don’t have a criminal conviction. Dutton will have the power to determine which permanent visa holders are eligible to appeal to the Tribunal, and which aren’t.

The question the Australian community must ask itself is whether we feel confident in Dutton playing judge, jury and executioner on such matters. Such decisions could literally mean life or death for a person sent back to harm.

It is a fundamental principle of the rule of law that government powers are held in check by an independent body of review. Our only safeguard against authoritative rule is independent oversight of government decisions. Each person must have the right of an appeal and a fair process to challenge decisions made over their lives. Such safeguards also ensure that mistakes are not made – mistakes that have happened all too often in the past.

The question the Australian community must ask itself is whether we feel confident in Dutton playing judge, jury and executioner on such matters.

These new powers are accompanied by sweeping changes to the Australian citizenship test. One such change – requiring new citizens to have a university level of English – will have a significant impact on vulnerable migrants, especially those from refugee backgrounds.

For refugee and humanitarian entrants, Australian citizenship has a special significance. Gaining citizenship marks both their integration into their new country and the end of their displacement. For many, it will mark the first time they have experienced the protection of a State. Australian Citizenship provides eligible people with the safety they need to settle and to heal, and gives them the security to build their new lives. For this reason, most refugees and humanitarian entrants are eager to apply for citizenship as soon as they can, and prize it highly.

As the 2008 Government review of Citizenship found, gaining “citizenship should be an enabling, positive and welcoming process for applicants and one which is seen to contribute to building a cohesive and dynamic nation.” Yet the proposed changes will make it much harder for refugees to become citizens, thereby excluding the people who value Australian citizenship the most.

Refugee communities are concerned the proposed English language test sets a bar that is too high – a university equivalent level of “competent” English. This could mean people who have never had the opportunity to study, due to war and displacement, will never become an Australian citizen. This proposal will impact women the most, many of whom have been denied education by authoritative regimes such as the Taliban.

A further principle of the rule of law is a transparent and open law making process. While the Department called for submissions on its proposed changes to citizenship, it refuses to make the submissions public. This is yet another example of the Department refusing to release vital information about its controversial policies. Unless submissions are stated as confidential, they should be made public to allow the Australian community to judge for itself the harms that these proposed changes will cause. The Refugee Council has responded by creating an online portal for people to provide their submissions, increasing transparency and accountability. Likewise, Freedom of Information requests for the submissions have already been filled.

The proposed changes are also set to be retrospective, applying from the moment the announcement was made, rather than when the law is (if ever) passed. Retrospective laws again breach the principle of the rule of law.

Combined, these proposals show a troubling view of the rule of law. Judging by the current proposals, the Minister would not meet his own Australian values test.

Offshore processing and the perils of unfettered consequentialism

By Nathan Bell and Asher Hirsch

With almost weekly tragedies coming out of Australia’s offshore detention regime, many across the world often ask: “how can such a democratic and free country allow the horrors of these policies to take place?” Most recent of these events is the death of a Sudanese refugee in Manus Island, raising concerns about access to adequate healthcare and independent oversight. Offshore processing, returning fleeing persons to vulnerable or threatening situations, indefinite detention and sexual abuse, are just some of the litany of ethically fraught consequences involved in Australia’s current asylum policies. Certain concepts in philosophy can inform an understanding of how such a draconian policy can develop. Continue reading “Offshore processing and the perils of unfettered consequentialism”

To stop boat deaths, abolish carrier sanctions and let asylum seekers travel by plane

Originally published on Right Now.

On a recent episode of Q&A, Professor Jane McAdam argued for the abolishment of “carrier sanctions”. Unfortunately, the director of the Andrew and Renata Kaldor Centre for International and Refugee Law at the University of NSW didn’t get time to elaborate. So what are carrier sanctions, and how to do they stop asylum seekers coming by air?

Professor McAdam advocated reframing the discussion around refugees away from security and detention, and in favour of facilitating “safe, lawful pathways for people … who are desperately in need of assistance.”

Carrier sanctions are financial penalties imposed upon airlines and ships that transport passengers who do not have a visa to enter. Australia is the only country in the world to impose a universal visa requirement on non-citizens. This means that all people who wish to enter Australia must obtain a visa prior to entering.

Continue reading “To stop boat deaths, abolish carrier sanctions and let asylum seekers travel by plane”

Australia’s carrier sanctions: leading the world since 1855

In an age of globalisation and securitisation, many States have attempted to restrict access to asylum through a range of extraterritorial measures that seek to prevent asylum seekers from reaching territorial borders in order to apply for protection. States which have signed the Refugees Convention owe refugees in their territory and under their jurisdiction certain rights. Yet in an attempt to escape their legal obligations, States have increasingly pushed their borders beyond their territories, where legal rights are harder to assert.

Australia leads the world in the extraterritorialisation of migration control. However, rather than controlling migration, these policies have forced those who seek protection to use irregular, unauthorised and dangerous pathways to find safety. One way to prevent these dangerous journeys is to allow asylum seekers to get on planes. Unfortunately, Australia’s use of carrier sanctions work to prevent this safe route, generating demand for people smugglers and more dangerous journeys.

Carrier sanctions are financial penalties imposed upon airlines and ships that transport passengers who do not hold the relevant permission to enter the country. By requiring carriers to check that passengers have authorisation to enter a country prior to embarking, carriers effectively become border officials, controlling migration at the point of departure. While carrier sanctions are not only applied to refugees, they disproportionally affect refugees seeking protection.

Australia is the only country in the world to impose a universal visa requirement on non-citizens. From the refugee perspective, carrier sanctions work together with universal visa requirements to inhibit entry and access to asylum procedures for those who would otherwise be entitled to protection.

Australia was perhaps the first country to implement carrier sanctions. The colony of Victoria introduced the Act to Make Provision for Certain Immigrants 1855 which placed financial penalties on an owner, charterer or master of ship if they carried more than one Chinese migrant for every 10 tons of ship’s tonnage or did not guarantee payment by the Chinese passengers of an arrival tax of £10. Shortly after federation in 1905, amendments were made to the Immigration Restriction Act 1901 (Cth) which placed a fine of £100 upon ship owners, masters, agents and charterers for each prohibited immigrant (those who failed the dictation test) they carried. As intended, this had the result of significantly reducing the embarkation of non-White passengers.

Today the Migration Act 1958 (Cth) makes it an offence of to transport a non-citizen to Australia without a visa or documentation. Section 232 provides that where a ‘non-citizen’ enters Australia and does not hold a visa, ‘the master, owner, agent and charterer of the vessel are each taken to commit an offence against this Act punishable by a fine not exceeding 100 penalty units [$18,000].’

In addition, Airlines are responsible for the costs of removing passengers from Australia if they are refused entry after arrival.

To make it explicitly clear that carrier sanctions apply even to those with genuine protection claims, section 228B(2) provides:

…a non-citizen includes a reference to a non-citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non-citizen because the non-citizen is or may be a refugee, or for any other reason.

Thus carrier sanctions will apply even if the non-citizen is found to be a refugee, in contrast to other countries. Taylor notes that carrier sanctions have succeeded in reducing the number of asylum seekers arriving by air:

The fear of having their profit margin eroded by such penalties is supposed to encourage carriers to deny passage to Australia to those who are inadequately or irregularly documented. The fact that the number of infringement notices actually served on carriers has been dropping markedly from year to year indicates that sanctions have had their intended effect.

Carriers are unlikely to be sympathetic to the claims of refugees seeking to board, and even if they are, they do not have adequate expertise to assess refugee claims before departure. Even for those who are sympathetic, the financial impact of carrier sanctions would eventually outweigh any humanitarian concern.

Carrier sanctions not only extraterritorialise immigration controls, they also privatise them. No longer are State officials responsible for border management, private commercial entities now decide if a person has the right to cross the border. This makes asserting legal rights such as non-refoulement increasingly difficult, successfully deterring many potential legal challenges.

In order to assist States meet their carrier obligations, Australia has developed a range of practices, including the deployment of Airline Liaison Officers in certain ‘high-risk’ countries and the development of significant surveillance and monitoring databases.

If refugees aren’t able to take a plane, they are forced to seek asylum by other unauthorised, irregular and dangerous ways to find safety. If we are serious about stopping the boats, let’s look at allowing people to get on planes.