Migratory Austerity: Colonial Law’s Slow Violence

A word on Violence

Having been asked to write a commentary on the current events taking place on Manus Island I am struck by how difficult it is to know where to begin to tell a story about the extreme violence that is currently unfolding.  Where does one start in trying to respond to and to make sense of this wave of extreme violence that is real and everyday life for those who still find themselves captured on Australia’s offshore prisons even when those prisons have been officially closed?  While there is an absolute urgency to respond and resist this state sanctioned harm by speaking of it as extreme and as murderous, care should be taken not to think of it as it as exceptional.   Violence has many forms, many names and many faces and sometimes (but never for all) it can even be made to disappear behind the dramatic theatres of overt and visual violence.   This is particularly true in a country that is founded and sustained on colonial violence.

Tracking responses to refugees in Australia in (at least) the last 20 years reveals a logic of austerity or a ‘migratory austerity’ at play with rights to asylum having been subjected to severe cutting and restriction in line with prevailing economic logics.  If we look to Europe for example, we see that economic downturn and the associated punishment of imposed austerity impacts not only on the citizens of places like Greece but on those who are arriving on its shores seeking protections from even more acute crises of capitalism and global inequality.  States disavow the crimes of capital they are embroiled in and proceed to rationalise exclusion as necessity.  But what do we make of this argument in Australia where the colonial state is founded and sustained as an economic unit on unpaid debts to Aboriginal peoples for lands/waters and resources stolen? In other words what do we make of the extreme austerity being perpetrated against refugees on Manus Island and elsewhere by a state that cannot own up to its own sovereign debt?

Australia’s Invisible Sovereign Debt Crisis

As I have written elsewhere, even though Australian sovereignty is founded in disavowed debt conditions, there has never been a discussion about Australia’s ‘sovereign debt crisis’.

This is despite Aboriginal elders like Lilla Watson having alerted us to this:

“We ran this country, then those first boat people come and they never went away and they literally took over this country through force of arms and everything else that happens through colonialism and as my friend and sister Mary always says ‘they got a country for free’. They never paid a thing. They made themselves rich out of our country. They owe us much more than they could ever hope to repay and they need to start to come to terms with that.”

The colonial state is founded and sustained precisely through the accumulation of debt: cultural, social but also economic.  Seeing and naming sovereign debt and austerity as structuring the Australian state is critical to any analysis that seeks to understand why Australia’s migration laws and policies are so fundamentally anti-human. Australia’s sovereign debt crisis is an invisible and slow violence where colonial foundations are simultaneously effaced and re-affirmed.  It is from this position of disavowing the sovereign debt that it owes to Aboriginal peoples that the colonial state enacts the restriction/expansion paradox of austerity. The restriction of access to resources and safety for the world’s poorest peoples becomes the basis for territorial expansions and reworked forms of imperialism.  On Manus Island for example, current practices of systematic denial of basic resources to refugees builds on a complex imperial story where the Australian state has played a major role.

Conflict of Laws/ Papua New Guinea Supreme Court and the High Court of Australia

On 26 April 2016, the Supreme Court of Papua New Guinea delivered the Namah decision, finding that the treatment of the ‘UMAS at the Manus RPC contravened provisions of the PNG Constitution and was unsupported by PNG law.  After this decision, the High Court of Australia in Plaintiff S195 rejected the submission that the Australian Constitution denies Australia any legislative or executive power to authorise or take part in activity in another country which is unlawful according to the domestic law of that country.   The High Court of Australia licensed the use of Australian legislative and executive power outside of Australia even if the exercise of that power did not conform to the domestic law of another country.    Also of relevance here is that the Papua and New Guinea Act was passed in Australia in 1949 and the country is a constitutional monarchy with the Queen of England as the head of state. Independence from Australia was proclaimed in 1975.   This is the colonial context against which we must read the response of PNG locals towards refugees in the aftermath of the closure of Manus camp.

When PNG first made arrangements with Australia for the purpose of Australia enacting the Pacific Solution, it was done in exchange for Australia providing millions of dollars in aid that would allow for the redevelopment of universities, hospitals, upgrading of roads, a new courts complex and the deployment of Australian police. Former PM Rudd first visited Papua New Guinea in 2008 when signing the Port Moresby declaration which according to Ritchie ‘represented a recasting of Australia’s aid relationship with its former territory‘. The Port Moresby declaration recognised the sovereignty of Papua New Guinea, even as the increased aid to be provided by Australia was connected to Papua New Guinea lifting ‘its own contribution to improving governance, economic infrastructure and education‘.  This is the precise logic of austerity, which is revealed clearly in this context to be a colonial technology.

Australian Law as Slow, Colonial Violence

The rejection of the Uluru Statement from the Heart by the Federal Government occurred because it was unpalatable to the colonial state that Aboriginal people should have anything more than a token mention in the preamble of the Constitution. The state run ‘Recognise’ campaign culminated in the rejection of the ‘Voice to Parliament’ recommendation even if that recommendation was essentially a conservative one.  I say it was conservative because the recommendation assumes the centrality of a flawed and violent legal foundation.

The Constitution is a ‘nation-founding’ document setting out the structure of Australian Federation and as such establishes the separation of powers doctrine where power is divided and separated between executive, judiciary and legislature.  Despite this division of power and across these branches of Government, the colonial state retains exclusive law-making power.  The state power to reject recommendations is tied up with the need to re-assert colonial sovereignty and to attempt to produce a truth that law-making power and by extension sovereignty are one and singular. The groundwork for this was achieved in Mabo, a landmark judgement re-establishing a legalised colonial order even if it was predominantly understood as doing the opposite.

Even though terra nullius was overturned in 1992, the High Court in Mabo was also explicit that the sovereignty held by the Australian state and which in turn gave the High Court its place and authority to decide, could not be questioned. This, they said, was because opening up and examining the question of sovereignty would fracture the structure of the legal system.  Their legal pronouncement was that sovereignty was “non-justiciable”, meaning that the nature of colonial sovereignty could not be examined as a legal question.  This was an attempt to close up the question of sovereignty but even this shutting down carried and carries a legal effect.  The colonial order of the Constitution and the ability to keep reproducing the colonial foundation was re-centred and re-affirmed.

In the Australian context where the colonial state continues to deny what it owes and land, subterranean earth and water are rendered freely available for use without payment or accountability to Aboriginal peoples, then this seemingly limitless accumulation of debt is the disavowed pre-condition for the very existence and economic viability of contemporary Australia.  Effaced sovereign debt produces the ‘Australian economy’ and so is indissociable from the foundational and genocidal violence of colonisation.   This is also the space from which the ‘necessity’ and ‘emergency’ of people seeking asylum becomes subject to extreme austerity: there is no water, no food, no power for the refugees who have had the camp closed around them.  The closure of the camp is a trick as there is no freedom for the refugees even as they are ‘released’ into the community.  With the resources of detention being withheld, the imperial reach of the Australian state continues to expand and colonise in those places.  The practice of migratory austerity is in the end premised on the theft of Aboriginal resources and lands both in Australia and in PNG.  This layered violence is not exceptional.  It is the logical effect of an ongoing and disavowed sovereign debt crisis.

 

See also:

The Uluru Statement and Manus Island: How the settler colonial state of exception compounds race and the necessity for a Republic of Australia

 

 

Dr Maria Giannacopoulos is Senior Lecturer in Socio-Legal Studies and Postgraduate Director at the College of Business, Government and Law at Flinders University. She has a law and cultural theory background and conducts critical interdisciplinary research in the areas of sovereignty, colonialism and borders. She is currently writing a book titled Sovereign Debt, Austerity and the Endurance of Colonialism.

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