Refugee policy is the real crime

Review: Border Crimes
By Michael Grewcock, The Federation Press, $49.95

With the defeat of the Howard Government in 2007 many assumed the dark days of the mandatory detention of asylum seekers were over.
Many in the refugee movement were a little more sceptical. We knew how hard it had been to force Labor into the limited policy change it took to the election: the retention of mandatory detention, but only while health and identity checks are carried out rather than while the refugee claim is assessed.
So it was not a huge surprise when the issue flared again last year. Behind the scenes, Rudd’s main approach to asylum seekers has been to provide funding to Indonesia to intercept refugee boats and detain asylum seekers.
For those that do reach Australian waters, Rudd has continued off-shore processing.
The Pacific Solution has been replaced with the Indonesian Solution with the same racist emphasis on queue jumping and border protection.
Rudd has added a new dimension, spewing out a stream of vitriol against people smugglers. His claims that they are the scum of the earth are aimed solely at re-emphasising border protection at the expense of the right to seek asylum. The reality is that so-called people smugglers are the only option available to people fleeing persecution by a hostile state.
As a result of Rudd’s policy, thousands of asylum seekers languish for years in appalling conditions in Indonesian detention centres. So asylum seekers are again taking matters into their own hands and trying to reach Australia whatever way the can. At the time of writing, more than 200 refugees were still refusing to leave their boat in the Indonesian port of Merak, demanding resettlement in Australia.
The situation for those who get to Australia is deteriorating as well. Mandatory detention on Christmas Island has gone from the suggested 90 days to longer than eight months in some cases. The centre is overcrowded and Howard-esque measures are being implemented to crack down on increasingly angry detainees. Recently mobile phones were banned. Detainees have again begun hunger striking and protesting in response to excessive delays in processing.
So the publication of Michael Grewcock’s Border Crimes: Australia’s War on Illicit Migrants is timely.
Grewcock is part of an outstanding tradition within criminology of campaigning academics. He states unequivocally that his book “is designed as an intervention… as an attempt to refocus mainstream debate about border controls onto the actions of states”.

State Crime
His work focuses on the issue of state crime. Starting in the 1970s, radical criminologists have argued that “crime”, as traditionally defined, focuses solely on the behaviours of individuals and primarily on the behaviours of poor and disadvantaged people, while violent and abusive state acts are ignored. Border Crimes argues that Australian Government policy relating to on-shore asylum seekers should be regarded as state crime.
Its case is based on three key claims: that the policy has intentionally and systematically alienated, criminalised and abused asylum seekers.
Alienation here refers to the deliberate attempt to physically and ideologically separate illicit migrants from the Australian community. Grewcock argues that:

[T]he construction of the unauthorised migrant as the outsider is perhaps the most powerful legitimising process underpinning the implementation of border controls. [A]lienation superimposes over the legal limits to movement, a generalised lack of authenticity that helps to popularise and legitimise their exclusion. 

He traces this ideological separation back to the very founding of the Australian nation.
In 1888, in a portent of what was to come over a century later, the SS Afghan arrived in Australia carrying 550 Chinese migrants. Local media, such as The Bulletin, “caricatured Chinese immigrants as immoral, sexually rapacious, opium-smoking, disease-carrying, devious and dishonest” and the Victorian government prevented the Chinese from disembarking.
The modern version of this approach is a government that seeks to demonise on-shore asylum seekers with concepts such as “queue jumping” and “economic migration”. The introduction of Temporary Protection Visas that denied important benefits such as access to government services and family reunion created the impression that on-shore asylum seekers were less deserving than other migrants or refugees. The result is a portrayal of asylum seekers as devious, selfish, cheating, undeserving, illegal and most importantly, different to us.
The physical separation of asylum seekers needs little explanation. Even the middle of the South Australian desert wasn’t far enough, detention centres have been moved off-shore to Nauru and now Christmas Island. Grewcock adds that this physical separation too, has roots as far back as the internment of “enemy subjects”—Australians of German or Japanese descent—during the two world wars.

This physical and ideological separation is taken to a new level by Grewcock’s second major concern, the criminalisation of illicit migrants.
By transforming refugee policy into border policing, by emphasising people smuggling, by detaining asylum seekers in prison-like detention centres, using policing technologies such as handcuffing, constant surveillance and calling detainees by number instead of name the impression is created that asylum seekers should be viewed suspiciously, as criminals are viewed.
Of course government ministers and the media have gone further than this, explicitly suggesting that asylum seekers could be terrorists sneaking into Australia.
However Grewcock makes it clear it is not just the government and the media that contribute to the criminalising of asylum seekers. The courts too have played their part.
Key High Court decisions held that even when detention is effectively indefinite and in breach of human rights treaties, it must be considered administrative and not punitive. This is a crucial distinction since The Australian Constitution says only the courts can punish, not the government. Grewcock explains that these decisions confirm that immigration detention is a legitimate administrative function, even in a liberal democratic state.
More importantly, the High Court, with the exception of Justice Michael Kirby, endorsed the government’s approach to illicit migration as a matter of border protection rather than protection of human rights and the right to seek asylum. In other words, asylum seekers are regarded as illegal entrants first and foremost, rather than as fleeing persecution.
The last of Grewcock’s three criteria, that refugee policies are abusive, requires the least introduction. The movement against mandatory detention thoroughly exposed the abusive nature of the detention camps.
Grewcock stresses that these abuses were not aberrations or the actions of rogue guards, but rather the intentional result of government policy.
He notes that even the Human Rights and Equal Opportunity Commission (HREOC) found that the detention of virtually all unlawful citizens breached human rights treaties. Former Immigration Minister Amanda Vanstone rejected HREOC appeals to release children from detention on the basis that deterring “people smuggling” was a higher priority, confirming that the uniformly abusive nature of detention was intended.
Grewcock makes a powerful case that the government’s detention policies are in fact state crimes. However Border Crimes has two further merits worth noting.

History of racism
The first is that the regime overseen by the Howard Liberal government was consistent with a long history of official government racism that has been the basis of Australian capitalism and nationalism since colonial invasion.
This is a critical point. It helps to explain why things have changed so little under Rudd. But it also reveals that the root of refugee policy goes much deeper than bad policy. Grewcock is a Marxist and elsewhere he has done brilliant work linking the explosion of border security measures in recent decades with the long term crisis of capitalism.1
The final point worth mentioning is that Border Crimes is one of the very few works dealing with this subject that pays close attention to the determined resistance by detainees. Grewcock makes reference to hunger strikes, work strikes, the organisation of committees, coordination of protests between compounds and detention centres, escapes and connections made between detainees and activists outside detention.
As Grewcock points out: “The scale of the protests indicated that detainees were able to maintain a sense of collective identity, despite the efforts of the Australian state”.
The protest actions of detainees drew the attention of the media and successfully contested the ideological and physical separation of detainees. They also drew attention to the reality of the persecution they were fleeing from, puncturing their criminalisation.
Lastly, they drew attention to the abusive nature of detention, solidifying a public outcry and mass protest movement that ultimately won concessions from Howard and contributed to his electoral defeat.
Perhaps most importantly, it developed a sense of solidarity amongst detainees that overcame ethnic barriers and at times helped them endure in appalling circumstances.
Grewcock has added a new dimension to the literature on Australia’s policies of mandatory detention.
Despite the book being directed towards the discipline of criminology, Border Crimes is accessible and broadly focused and will be of interest to anyone that has followed these issues.
It makes a convincing case that conditions inside detention were not the result of policy breakdown. Nor were they simply the result of a particularly racist government. Rather they are the latest incarnation of a deeply racist Australian nation.
The book is a well-timed reminder of how deep the roots of racism run, a lesson equally important in explaining the on-going racism of the NT intervention as in explaining why Rudd’s approach to asylum seekers is appearing more and more like Howard’s.
Richard Bailey

1     See: Green Penny and Grewcock Michael ‘The War against Illegal Immigration: State Crime and the Construction of a European Identity’ (2002) 14 1 Current Issues in Criminal Justice 87; Grewcock Michael ‘Irregular Migration, Identity and the State – the Challenge for Criminology’ (2003) 15 2 Current Issues in Criminal Justice.



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