Crimmigration in Australia: Law, Politics, and Society

404 Pages·2019·5.078 MB·English

by  Peter Billings

Peter Billings Editor
Crimmigration
in Australia
Law, Politics, and Society
Crimmigration in Australia
Peter Billings
Editor
Crimmigration in Australia
Law, Politics, and Society
Editor
Peter Billings
TC Beirne School of Law
The University of Queensland
Brisbane, QLD, Australia
ISBN 978-981-13-9092-0 ISBN 978-981-13-9093-7 (eBook)
https://doi.org/10.1007/978-981-13-9093-7
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Preface
Perhaps we are in an era of crimmigration, an era characterised by frequently chang-
ing, layered, complex and increasingly harsh, criminal and immigration laws,
polices, administrative practices and enforcement measures, directed against non-
citizens and others rendered ‘alien’ who are deemed to be iniquitous and undeserv-
ing of the privilege of community membership.
Emblematic of contemporary crimmigration law and its administration are the
following: the extension of mandatory and discretionary grounds for visa cancella-
tion for both temporary and permanent residents; increasing levels of administrative
detention and deportation of felonious non-citizens; criminalisation and punishment
of those facilitating ‘irregular’ forms of migration; use of exorbitant (‘emergency’)
and often unaccountable executive power; highly secretive state practices in car-
ceral environments on land and sea, lacking adequate oversight; a range of stringent
measures aimed at deterring and/or criminalising the act of asylum seeking;
racialised and gendered administration of migration controls; and violations of
human rights. The list is by no means exhaustive, but it does serve to identify several
troubling aspects of crimmigration. For those non-citizens (and others) subject to
(or impacted by) state practices of the type outlined above, it can be difficult to
discern the difference between the operation and effects of criminal law/justice and
immigration law/procedure.
The genesis of the present volume was in the commissioning of papers by the
editor and, subsequent, workshop held at the University of Queensland, TC Beirne
School of Law, on 19 July 2018. Following a productive and lively exchange of
ideas, the invited participants, joined by two other scholars who were not present at
the workshop, contributed papers for this edited collection. This is the first book to
be dedicated to the study of the legal domain of crimmigration in Australia. The
contributors are attentive to local, idiosyncratic, socio-historical and legal condi-
tions and contexts and write with an awareness that, in some respects, Australia may
be regarded as being at the forefront of crimmigration globally. The collection is
situated within an international environment in which the study of crimmigration
has established a firm foothold in the United States and Europe over the past decade.
v
vi Preface
As this collection of socio-legal, doctrinal, theoretical and empirical perspectives
demonstrates, crimmigration embraces more than just the criminalisation of migra-
tion/asylum. It may be defined as a multifaceted structure in which criminal and
immigration law, procedure and practice have merged in various ways over a long
time to create a distinct concept that some say is rapidly evolving and intensifying
everywhere.
This book is comprised of 16 chapters, including the Introduction. For thematic
coherence, the book adopts a quadripartite structure, although the themes and per-
spectives are overlapping and interconnected. The chapters can be read and effec-
tively understood in isolation but are best appreciated when read as a whole. The
contributors actively engage with each other, referencing the relevance and value of
each other’s chapters and earlier published work. I’m very grateful to the outstand-
ing scholars, both emerging and well-established members of the academy, who
kindly accepted the invitation to contribute to the project and who expended so
much time and intellectual energy preparing and revising their chapters.
This edited collection breaks new ground, I believe, with the range of perspec-
tives and research methods brought to bear on the complex concept of crimmigra-
tion in Australia. Scholars have contextualised, critiqued and theorised about
crimmigration and also unpacked and analysed law, administration, institutions and
technologies. For instance, some contributors question the novelty of crimmigration
law and practice in Australia or that its impacts are necessarily severe or punitive.
These critical perspectives are essential counterparts of the work of other contribut-
ing authors who, aptly and persuasively, highlight aspects of crimmigration that
compromise elements of constitutionalism (the rule of law and separation of pow-
ers) or that function in racialised and gendered ways, or otherwise violate human
rights and dignity.
This publication has benefitted from the support of many people over the course
of the past 18 months. First, I thank all the contributors for their collegiality at the
workshop and for the prompt submission of their chapters that enabled me to com-
plete the project in a timely manner.
Second, I offer my appreciation to the anonymous reviewers from Australia and
overseas who provided very helpful and constructive feedback on each and every
draft chapter. Their valuable feedback has greatly improved the quality of this
collection.
Third, I extend thanks to the staff at Springer Nature, notably Stephen Jones
(Publishing Editor at Springer) who enthusiastically commissioned the book prior
to his departure from Springer in July 2018 and to Ms. Malini Arumugam (Project
Co-ordinator) who ensured my publishing queries were answered promptly and
whose gentle reminders guaranteed that I did not forget the agreed timetable for the
book’s completion.
Fourth, I recognise the intellectual and moral support, and leadership, of
Professor Simon Bronitt (formerly Deputy Head of School and Deputy Dean of
Research 2014–2018 at the TC Beirne School of Law) and acknowledge the vital
financial support offered by the TC Beirne School of Law, which facilitated the
Preface vii
gathering of scholars in July 2018. Without this institutional support, the project
would not have progressed as smoothly and efficiently as it did, if at all.
Finally, I acknowledge my academic colleagues and professional staff (espe-
cially the events team) at the TC Beirne School of Law for their kindness, support
and encouragement as I worked to bring this edited volume together. Also, sincere
thanks to Ms. Harriet Lomas, an incredibly gifted research assistant, for her thor-
ough and highly efficient editorial work on all the chapters.
Brisbane, QLD, Australia Peter Billings
April 2019
Contents
Part I C rimmigration Law: Context and Critique
1 Introduction ............................................................................................. 3
Peter Billings
2 Australia’s Long History of Immigration, Policing
and the Criminal Law ............................................................................. 19
Mark Finnane and Andy Kaladelfos
3 ‘Race’, Crimmigration and the Deportation of Aboriginal
Non-citizens ............................................................................................. 39
Louise Boon-Kuo
4 Sexing the Leviathan: When Feminisms
and Crimmigration Meet ....................................................................... 63
Kate Ogg
5 Crimmigration and the Australian Legal Lexicon: Reflecting
on Border Control, Theory and the Lived Experience ........................ 89
Alison Gerard
Part II C rimmigration Law, Policy and Praxis: Indignity and Injustice?
6 Characters of Concern, or Concerning Character Tests?
Regulating Risk through Visa Cancellation, Containment
and Removal from Australia .................................................................. 119
Peter Billings and Khanh Hoang
7 Crimmigration and Refugees: Bridging Visas, Criminal
Cancellations and ‘Living in the Community’ as Punishment
and Deterrence ........................................................................................ 149
Anthea Vogl
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x Contents
8 Crimmigration-Counterterrorism in the War on Foreign
Terrorist Fighters .................................................................................... 173
Rebecca Ananian-Welsh
9 Strip Searching: Seeking the Truth ‘in’ and ‘on’
the Regular Migrant’s Body ................................................................... 197
Marinella Marmo
Part III Deterring ‘Irregular’ Migration: Over- Criminalisation
and Beyond International Law?
10 Marriage, Migration and Gender: A Site for Crimmigration?
An Australian Case Study ...................................................................... 223
Susan Kneebone
11 Smugglers and Samaritans: Criminalising the Smuggling
of Migrants in International and Australian Law ................................ 253
Andreas Schloenhardt
12 Children’s Rights and Crimmigration Controls: Examining
Australia’s Treatment of Unaccompanied Minors ............................... 275
Joseph Lelliott
Part IV Crimmigration Control: Tools, Trappings and Technologies
13 Punitive Bureaucracy: Restricting Visits to Australia’s
Immigration Detention Centres ............................................................. 305
Amy Nethery
14 Turn the Detention Centre Inside Out: Challenging State
Secrecy in Australia’s Offshore Processing of Asylum Seekers .......... 327
Greg Martin
15 Crimmigration and Human Rights in Contexts of Confinement ....... 353
Patrick van Berlo
16 Crimmigration in Border Security? Sorting Crossing
through Biometric Identification at Australia’s
International Airports............................................................................. 381
Peter Chambers and Monique Mann
Contributors
Rebecca Ananian-Welshis a Senior Lecturer at the TC Beirne School of Law, The

University of Queensland. Her research focuses primarily on judges and courts, as
well as human rights and national security law and policy. She has co-edited two
books as well as publishing book chapters and articles in leading journals and has
spoken widely at Australian and international events on these topics. Her most
recent book, The Tim Carmody Affair: Australia’s Greatest Judicial Crisis, co-
authored with Gabrielle Appleby and Andrew Lynch, was nominated for the 2017
Queensland Literary Award. Email: [email protected]
Peter Billingsis an Associate Professor at the TC Beirne School of Law, The

University of Queensland. He has published widely on different aspects of immigra-
tion and refugee law, administrative law/justice and social welfare law and, more
recently, on crimmigration law, policy and practice, including the following:
Regulating Crimmigrants Through the Character Test: Exploring the Consequences
of Mandatory Visa Cancellation for the Fundamental Rights of Non-citizens in
Australia (2019) 71(1); Crime, Law and Social Change 1; and, Getting Rid of Risky
Foreigners: Promoting Community Protection at the Expense of Administrative
Justice? (2019) 47(2) Federal Law Review 231. Email: [email protected]
Louise Boon-Kuois a Lecturer at the Sydney Law School, The University of

Sydney. She researches in the areas of border control, criminalisation, race and citi-
zenship. She is particularly interested in the way in which laws construct and justify
state responsibility for the violent impacts of border control. She undertakes research
on border policing within the nation, as well as its transnational and international
manifestations. She is Author of Policing Undocumented Migrants: Law, Violence
and Responsibility (2017, Routledge) and Book Review Editor for Current Issues in
Criminal Justice. Prior to joining the University of Sydney Law School, she worked
as a Solicitor and Co-ordinator in community legal centres specialising in refugee
and criminal law and has also been involved in numerous policy advocacy networks
as well as community-based projects. Email: [email protected]
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