State of exception, resurgent sovereignty?
The Australian government has attempted to assert that the entire RSA process is an exercise of non-statutory executive power and as such, status assessors and independent reviewers are under no obligation to afford an applicant procedural fairness or to decide applications according to existing law. However late last year the High Court upheld a challenge made by two asylum seekers ruling that the RSA process and Independent Merits Review were conducted for the purposes of the Migration Act and hence, like the rest of that or any other Act, were subject to law and procedural fairness requirements. The asylum seekers also argued that the arbitrary and unenforceable nature of the offshore processing regime made it invalid in its entirety. According to the Australian Constitution, they suggested, “there cannot be a valid grant of power without enforceable limits.” S.46A(7) of the Migration Act states that “The Minister does not have a duty to consider whether to exercise the power [to allow an offshore entry person to apply for a visa].” There are no provisions relating to when or why the Minister might consider exercising this power or not and no recourse if the discretion is not exercised, hence the plaintiffs argued an “island of power” was created in the hands of the executive with no restriction or limit applied either by parliament or the courts. The High Court rejected this argument, stating that the relevant provisions were not “of so little content as not to… be a ‘law’ as a rule of conduct or a declaration as to power, right or duty.” They reached this decision on the basis that if the power was exercised, then it became subject to various limits set out in the legislation and subject to judicial review. If the Minister exercises the discretion, the Migration Act requires that a statement be presented to parliament in each case setting out the reasons for why the determination is in the public interest. However, the Minister, or ASIO by means of the security check, is free to decide not to exercise the discretion for any reason with no obligation to state or justify that reason.
The Australian offshore processing regime invites application of Giorgio Agamben’s notion of the inclusive exclusion. Following Carl Schmitt, Agamben suggests that a fundamental act of sovereign power is the decision on the state of exception. The state of exception is a space that marks out the boundaries of the legal order. By designating what is outside, it defines what is inside. Those captured within it lack access to normal legal rights and protections. Agamben suggests this is not an exclusion; the law does not absolutely ignore those in the exception. Rather they are included in the legal order as those excluded from its normal operations. An offshore entry person is included within the Australian legal system by means of their exclusion from the right to make a visa application under the Migration Act. Suvendrini Perera calls the resulting space of the detention camps “not-Australia,” suggesting they are at once part of and not part of Australia. This legal arrangement does not require a formal declaration of emergency or war to suspend the constitution as was the case in Nazi Germany or the indefinite detention of enemy combatants at the US military prison at Guantanamo Bay. Nonetheless, by turning undocumented migration into a military operation, the government fabricates a factual emergency in which the law is in force but without the normative signification of enforceable legislative rules. For detainees this unpredictability or unknowability of the law is very difficult to endure. The report of a recent detention suicide makes this very clear:
A nineteen year old Hazara boy has killed himself today. His name is Mohammad Asif Atay. Today Immigration arrived with positive decisions for people on Boat 225. Asif could not understand why he was still waiting for his decision as he came much earlier on Boat 170. He returned quietly to his room and locked the door. His friends broke down the door when they found it locked but it was too late. Another man said that he came on Boat 103 but he also has no decision. When he asked his case manager today why he had no decision, he was told, “You must wait 3 or 4 years – if you can’t wait I will make you a passport and send you back,” he said. No one can understand how it works that people who came one month back get a visa and others are waiting 11 months.
This aspect of Agamben’s work has been controversial; some argue this is how the law always operates. Others would suggest it is not possible to use snippets of Agamben’s work like this without the context of his overall theme of potentiality and ontology. Another frame through which to view the offshore processing regime can be found in Judith Butler’s work on the US military prison at Guantanamo Bay. Butler analyses this indefinite detention in the context of Michel Foucault’s distinction between sovereign power (the power to use violent force) and governmentality (the power associated with the management and administration of populations). She calls it a “resurgent sovereignty,
animated by an aggressive nostalgia that seeks to do away with the separation of powers. The state produces, through the act of withdrawal, a law that is no law, a court that is no court, a process that is no process… The state of emergency returns the operation of power from a set of laws (juridical) to a set of rules (governmental), and the rules reinstate sovereign power: rules that are not binding by virtue of established law or modes of legitimation, but fully discretionary, even arbitrary, wielded by officials who interpret then unilaterally and decide the condition and form of their invocation.
There are many echoes in this passage of the Australian offshore processing regime. As is the case with Agamben’s work, Butler’s invites many questions, most obviously, how nostalgic or resurgent is a violent executive power? The purpose of this article is not to go into detail on the merits of Agamben versus Butler. However for the purposes of developing this analysis further and assisting in rebuilding the movement, I am interested in further investigating Butler’s work for two reasons: First, Butler’s work seems to focus more specifically on the struggle between judicial authority and executive power, which is still a very real issue for the movement in Australia. Secondly, I see potential in Butler’s concept of “precarious life” to make connections and alliances with other contemporary struggles. I will briefly expand on each of these reasons in turn.
Executive power v judicial authority
The Australian High Court decision in late 2010 mirrors a series of High Court decisions in the 2000s that tested the extent to which the courts could or would impose limits on the executive authority to detain and decide on refugee status. Progressive lawyers continually sought ways to assert judicial authority in the hope this would lead to better outcomes for asylum seekers. Some would argue this is at best a dead end and, in terms of invalidating mandatory detention, it almost exclusively has been. At worst, this approach valorises the judiciary and the rule of law which have permitted colonial violence, genocide and arbitrary imprisonment for centuries. It locks resistance within the exclusionary and limited parameters of the law. But governments don’t attempt to prevent judicial review for no reason, and in the case of refugee law, the Australian government has gone to extreme lengths to try to avoid it.
This can be explained, at least in part, by the courts in Australia making several attempts to remedy mandatory detention, most dramatically in the Bakhtiyari case, where the Family Court decided it had jurisdiction to make orders against the Minister requiring the release of children from immigration detention. This decision was eventually overturned by the High Court but it nonetheless demonstrates why the government wanted to avoid judicial scrutiny. The recent High Court case is an important victory for asylum seekers, by upholding the requirement that offshore processing adhere to procedural fairness principles, many asylum seekers whose cases had been rejected will now have the opportunity to access government evidence against their applications and introduce new evidence of their own. This will undoubtedly result in some asylum seekers avoiding deportation back to situations of torture and possibly death. However the High Court continues to uphold the legislative removal of merits review by the courts. Asylum seekers and advocates have learnt the hard way not to trust departmental decision makers or even ‘independent’ reviewers and firmly believe their visa claims stand a much better chance before the courts.
These decisions to make legal challenges against offshore processing or to seek judicial review are usually made strategically in the context of a broader political struggle. Lawyers are often also activists or work together with activists to work out the most effective way to undermine government policy. There is rarely a simple distinction between legal and non-legal methods of critique or between appealing to human rights treaties and political struggle. Rather there is an ongoing process of strategic negotiation of constantly shifting opportunities and outcomes. I have written elsewhere analysing in detail this strategic engagement with the law. In that article I adopted Emilios Christodoulidis’ suggestion that we must risk these strategic engagements but we must also pay close attention to law’s mechanisms for pre-determining, closing and coopting them. It is certainly the case that progressive lawyers in Australia have often failed to acknowledge these risks, and there are many. Most obviously, legal challenges accept the boundaries of the UN Convention on Refugees and its narrow definition of ‘persecution’ that excludes anyone fleeing poverty, environmental destruction or war. They deny the right to self-determination in relation to migration by appealing to the state as the legitimate arbiter of who can and cannot move. Processes of bordering, racism and exclusion that occur within the borders of the nation state are sidelined or ignored. In 2010, a group of activists in Sydney formed the border collective (pronounced cross-border collective) to work towards developing a politics and resistance that contests all processes of bordering and critiques narrow definitions of ‘refugee’ and ‘persecution’. The border collective also seeks to develop connections with activists in a range of struggles that are contesting borders. So far this has involved the beginnings of work with activists campaigning for prison abolition, against the exploitation of international students by Australian capital and climate activists resisting racist population discourses within their movement.
Greivable lives, precarious alliances?
The second attraction to further engagement with Butler’s work is her concept of “precarious life”. In her recent book Frames of War, Butler returns to the concept of precarity that she argues, “cuts across identity categories as well as multicultural maps, thus forming the basis for an alliance focused on opposition to state violence and its capacity to produce, exploit, and distribute precarity for the purposes of profit and territorial defence.” No borders activists in Europe have successfully made links between migrants’, anti-war and workers’ struggles through the concept of precarity. As other Australian activists have noted, the lack of attention to the concept of precarity here might in part explain the limited connection between workers’ struggles and the anti-detention movement. The precariousness of the lives of undocumented migrants is obvious and Butler’s suggestion that “[i]t is not the withdrawal or absence of law that produces precariousness, but the very effects of illegitimate legal coercion itself, or the exercise of state power freed from the constraints of all law,” resonates with Australia’s offshore processing regime and the struggle between executive power and judicial authority. Many questions are posed, such as how much of a constraint law is or has ever been or how we define ‘illegitimate’. But I think pursuing these questions will be productive for the movement.
Butler discusses precarious life in the context how lives are or are not produced as grievable. This has long been an issue for anti-detention activists. Then immigration Minister Philip Ruddock infamously responded to acts of self-harm by detainees in a manner intended to mark them as ungrievable:
[T]here are some people who do not accept the umpire’s decision, and believe that inappropriate behaviour will influence people like you and me, who have certain values, who have certain views about human rights, who do not believe in the sanctity of life, and are concerned when people say, “If you don’t give me what I want, I’m going to cut my wrists.
The anti-detention movement is all too familiar with mourning our losses. A few weeks ago activists joined with family members at the funerals of those who died off Christmas Island in December and successfully demanded that survivors who had lost family members be released from detention. As I am typing I check my email to find a message from a detainee in the Scherger detention centre:
Scherger is mournful tonight. Moaning and wailing voice is raised to the sky. A 23 year old Hazara boy ended his life. He committed suicide few hours ago. May God bless him.
Despite this resonance with Butler’s work, I am concerned about generalising and developing resistant subjectivities based on moments of weakness and victimisation. Can it be appropriate to refer to detainees who are burning detention centres down as precarious life? I do not propose to answer these questions here. I am however prepared to suspend my concern to explore whether Butler’s work can indeed assist us in building alliances across different struggles in Australia.
In the meantime activists inside and out continue to do what we can to subvert and undermine the policy of mandatory detention. Over Easter we will be converging on detention centres around the country in solidarity with the ongoing struggles of detainees inside.
For more information on the campaign against immigration detention in Australia see:
 Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth  HCA 41
 Ibid., para 55
 Ibid., para 56
 Perera, Suvendrini ‘What Is a Camp…?’ (2002) 1 1 Borderlands eJournal http://www.borderlandsejournal.adelaide.edu.au/vol1no1_2002/perera_camp.html
 Personal email.
 Butler, Judith Precarious Life: The Powers of Mourning and Violence Verso London 2004: 61-62
 I have written elsewhere about the problems in using Agamben’s work in the context of political praxis: Bailey, Richard ‘Up against the Wall: Bare Life and Resistance in Australian Immigration Detention’ (2009) 20 2 Law and Critique 113
 S157/2002 V Cth (2003) HCA 2; Minister for Immigration & Multicultural & Indigenous Affairsv Al Masri (2003) FCAFC 70; Behrooz V Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) HCA 36; Al-Kateb V Godwin (2004) HCA 37; Minister for Immigration and Multicultural and Indigenous Affairs V Al Khafaji (2004) HCA 38. Most of these cases ultimately turned on the question of whether the High Court found that it had jurisdiction to interfere with executive power, either because immigration detention amounted to punishment and breached the executive authority permitted by the separation of powers doctrine in the Constitution or because legislation is to be interpreted as intending not to breach Australia’s treaty obligations. The High Court majority (stacked with conservative appointments) consistently found that it did not have jurisdiction or authority to interfere with exercise of executive power in immigration detention, raising further questions about exceptionality and the presence/absence of law in its normative form.
 The Howard government made numerous legislative amendments attempting to explicitly remove all judicial review including the following privative clause in s.474 of the Migration Act: “Decisions under Act are final [emphasis in original] (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. For a full discussion of the enactment of these amendments and judicial responses see Vrachnas, John et. al. Migration and refugee law: principles and practice in Australia Cambridge University Press Cambridge 2008.
 B & B and Minister for Immigration and Multicultural and Indigenous Affairs (2003) FamCA 451; B & B and Minister for Immigration and Multicultural and Indigenous Affairs (2003) FamCA 621 (unrept, Family Court of Australia).
 Minister for Immigration and Multicultural and Indigenous Affairs V B (2004) HCA 20.
 Bailey, Richard ‘Strategy, Rupture, Rights: Reflections on Law and Resistance in Immigration Detention’ (2009) 31 Australian Feminist Law Journal
 Christodoulidis, Emilios ‘Against Substitution: The Constitutional Thinking of Dissensus’ in M. Loughlin and N. Walker (eds) The Paradox of Constitutionalism: Constituent Power and Constitutional Form Oxford University Press Oxford; New York 2007 p 189; Christodoulidis, Emilios ‘Strategies of Rupture’ (2009) 20 1 Law and Critique 3
 Butler, J. Frames of War: When Is Life Grievable? Verso 2009: 32
 Neilson, B. and Mitropoulos A. ‘Exceptional Times, Nongovernmental Spacings, and Impolitical Movements’ (2007) 34 Vacarme http://www.vacarme.org/article484.html
 In Whitmont, Debbie ‘The inside Story: An inside View of What Is Going on in Detention Centres’ Four Corners Australian Broadcasting Corporation Sydney broadcast 19 May 2003 trancript available from http://www.abc.net.au/4corners/stories/s344246.htm accessed on 22 February 2007