Quick Post: Why ‘excising Oz from the migration zone’ is no big thing #auspol #asylumseekers @ASRC1

As a piece of language, it sounds like another example of stupid politicians and bureaucrats getting out of touch with reality: a piece of legislation has excised Australia from the migration zone.  ‘As a matter of law,’ said one person, ‘the Australian mainland no longer exists.’

Twitter was abuzz with people basically repeating the same memes over and over again.  Who could say the wittiest, snappiest thing about this policy?  Oh, things comedians say must be true because they’re funny.  Rightwingers ignore facts; comedians don’t.

Here’s a quick run down of the relevant facts and the policy questions:

What is the Migration Zone?

Section 5 of the Migration Act both defines and creates the Migration Zone:

“migration zone” means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

(a)  land that is part of a State or Territory at mean low water; and

(b)  sea within the limits of both a State or a Territory and a port; and

(c)  piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port.

The Act uses this definition of the Migration Zone to do two things.  First, it determines the area within which (most) non-citizens must hold a visa in order to be lawful.  Thus, section 14:

non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

A person who is within the Migration Zone (and is not exempt in some way) without a visa must be placed in immigration detention.  The detention of unlawful non-citizens is mandated by the Act (‘mandatory immigration detention’).

Second, it determines which visa applications can be made by a non-citizen.  For example, a person who is within the migration zone is not able to lodge a spouse visa (subclass 300).

What does excising a place from the migration zone mean?

Section 5 also describes what it means for a place to be excised from the migration zone:

“excised offshore place” means any of the following:

(a)  the Territory of Christmas Island;

(b)  the Territory of Ashmore and Cartier Islands;

(c)  the Territory of Cocos (Keeling) Islands;

(d)  any other external Territory that is prescribed by the regulations for the purposes of this paragraph;

(e)  any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;

(f)  an Australian sea installation;

(g)  an Australian resourcesinstallation.

Note:          The effect of this definition is to excise the listed places and installations from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications.

This doesn’t make a lot of sense by itself.  Here’s a bit more of the story:

“offshore entry person” means a person who:

(a)  has, at any time, entered Australia at an excised offshore place after the excision time for that offshore place; and

(b)  became an unlawful non-citizen because of that entry.

And now we’re starting to get back to words that are a bit more familiar.  What is interesting is that second part of the definition: became an unlawful non-citizen because of that entry.  But in order to be an unlawful non-citizen, you need to be inside the migration zone (section 14).

It’s starting to sound like the hype is all bullshit

You’d be right.  Here’s the Act that was passed yesterday which allegedly ‘excised Australia from the migration zone’.  The major change is the substitution of ‘offshore entry person’ with ‘unauthorised maritime arrival’.  I’ve pasted an image below because it’s just easier than cutting and pasting from the PDF:

S5AA Migration Act


The practical effect is that you can be an ‘unauthorised maritime arrival’ if you arrive at an excised offshore place or if you arrive anywhere else in Australia.  This is what people appear to mean by ‘Australia has been excised from its own migration zone’.  In other words: utter bullshit.

How does this all play out in practice

Keeping with the language prior to yesterday’s amendment, here’s where section 46A comes into play:

(1)  An application for a visa is not a valid application if it is made by an offshore entry person who:

(a)  is in Australia; and

(b)  is an unlawful non-citizen.

Remember, an ‘offshore entry person’ is somebody who enters Australia at an excised offshore place and became an unlawful non-citizen by entering the migration zone there.  So a person who enters Australia at an excised offshore place and becomes an unlawful non-citizen by doing so is unable to make a valid visa application.

That is, until this:

(2)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

(3)  The power under subsection (2) may only be exercised by the Minister personally.

This is referred to as ‘lifting the bar’.  If you’re an offshore entry person, the Minister has to ‘lift the bar’ so you can make a valid visa application.  (Under the new scheme, if you’re an unauthorised maritime arrival, you’re barred from making visa applications)

Wait!  Why should asylum seekers be ‘barred’ from making visa applications?!  Seeking refugee status isn’t illegal.  Don’t make me vandalise your billboard!

The short answer is: refugee processing is conceptualised as a problem for the international community, not for individual countries.

Imagine that my two brothers (Ian and John) and I flee persecution in our home country.  Our home country is the Kakistocracy of Fictionstan and it’s somewhere between Afghanistan and Pakistan.  We make it to Indonesia where we lodge applications with UNHCR.  I am unwilling to risk my life at sea making the final part of the journey, but my brothers know how long it could take to get refugee status in Indonesia.

Ian finds a smuggler who agrees to take him to Australia in exchange for a wad of cash.  John finds a different smuggler.

John’s smuggler arranges for the boat to arrive at Christmas Island (which is an excised offshore place).  Ian’s smuggler arranges for the boat to arrive on the mainland closer to Darwin (which was not).

The question for people who got extremely upset about ‘excising the mainland from the migration zone’ is not only ‘Why should Ian and John be treated differently?’ but ‘Why should Ian, John, and I be treated differently to each other?

Just because I happen to stay in Indonesia, why shouldn’t I get the same consideration that Ian and John received?

Onshore processing is nothing short of Darwinist: if you survive the final boat trip, you should have your visa application considered before everybody else.

Barring visa applications from unauthorised maritime arrivals means that, in theory, the asylum seekers are not considered under Australian law, but are considered as part of an international humanitarian programme.  For a variety of reasons, it doesn’t end up working that way, but that’s the goal.

Under a regional processing model, Ian, John, and I would have equal chance of getting our refugee status recognised and being resettled.  Under an onshore processing model, only those people who risk their lives do.

But we haven’t just excised Australia, we’ve excised our hearts!

Okay, well you haven’t listened to any of the above conversation.  ‘Australia’ hasn’t been excised from anywhere, and the migration zone is a fictional legal construct.

If this weren’t about asylum policy, most people would agree that a government policy which created an incentive for desperate people to endanger their lives would be a bad thing.

Under the previous arrangement, there was an incentive for people to try to get as close to the mainland undetected as possible.  If you agree with offshore processing (because you think Ian, John, and I should not be treated differently in the above example), then you can’t qualify that with: ‘Oh, yes.  But if they go to really, really extreme lengths, then they should be processed onshore.’  That’s a nonsense policy.  Worse, it’s cruel to treat people like this: ‘We will give you a better arrangement, but only if you risk your life first.’

But asylum seekers who arrive by plane are treated differently!

That’s true and it’s a crappy arrangement.

One of the key differences is that asylum seekers who arrive by plane are usually a lot easier to process.  Forget the success rate for a second (most asylum seekers who arrive by plane are unsuccessful because the claims are more obviously unsubstantiated).  For each individual in this case load, we already know who they are, their health situation, and their security situation.  Why?  Because they had to go through all of that process offshore in order to get a visa to arrive here.  Effectively, most of the work in this caseload has already been done offshore.

But didn’t Chris Bowen criticise the Howard Government for trying the same technique?

Yeah, but Chris Bowen was wrong to do so.  Another example of politicians going for populist reactions to policy.

Also, that’s the same Chris Bowen who’s been one of the key leakers trying to undermine the ALP, so his understanding of morally appropriate activities is somewhat shady.

The ALP’s border protection policy has been an expensive failure [because boats keep coming/because I disagree with offshore processing].

We haven’t seen the ALP’s border protection policy at work.  It’s been blocked by a tag team effort of the Coalition and the Greens.

Here’s the theory:

Why should an asylum seeker have to move undetected from their home country to Australia in order to receive protection?  The answer: because the current processing model is broken.  There are two slow points: having the protection claim affirmed, and having a resettlement option presented.

So what if you could speed up the protection claims and resettlement process for all the displaced persons in a particular region?  No matter where in the ‘pipeline’ an asylum seeker presented themselves, the international community could process the claims quickly and find a country in the region that would allow them to be settled.

But some asylum seekers would clearly prefer to be settled in Australia and New Zealand than, say, PNG or the Solomon Islands.  So if they can bypass the regional protection framework and come directly to Australia, they get a 100% chance of being resettled here than elsewhere in the region.

Thus, you need the measure that was passed otherwise people start selecting the options they want.

On the other hand, the regional protection mechanism isn’t in place yet, so should asylum seekers have to wait for that to be sorted out?

On the other hand to that other hand, given that we have advised what outcome we want, do we want to create an incentive to move early?

And so on and so forth.

Back to the first step: asylum seekers (at the behest of the smugglers) either move towards Europe or towards Australia.  If the perception is that it’s easier to get protection claims resolved in south east Asia, would that mean more people would come this way?

On the other hand, isn’t that a good thing?  That’s like saying: ‘Imagine all the water in the area is poisoned.  If we clean one water source, then everybody will drink from it instead of the poison water!’

On the other hand to that other hand, we aren’t the ones who will be impacted in the first instance from the move: our partner countries in the region will encounter more irregular immigration and have to deal with the social/economic/political consequences of it.

And so on and so forth.

So there are lots of subtle, nuanced issues at play in this debate.  So how is one of our most influential megaphones on the asylum seeker issue contributing to the conversation?

Oh.  Contributing to an informed public debate.  Nice.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

4 thoughts on “Quick Post: Why ‘excising Oz from the migration zone’ is no big thing #auspol #asylumseekers @ASRC1”

  1. Hey dude if you put a ‘read more’ jump in your long posts then browsers like me will find it easier to check out your homepage and see what posts you’ve got up.

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