So Where The Bloody Hell Aren't You?

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What does "excising the mainland from the migration zone" actually mean?

Whatever it means, it doesn't mean what it says. The "migration zone" is that part of Australian territory where anyone who is not an Australian citizen needs to have a visa. To any ordinary speaker of the English language, the act of excising something from a particular zone would mean that place was no longer in that zone. So no-one would need a visa in the excised bits.

Not so in the weird world of migration-speak.

It all began with the Migration Amendment (Excision from Migration Zone) Act 2001. That's the short title of the legislation, which is what most people refer to when talking about an Act of Parliament. But like all Acts of Parliament, this one has a long title:

An Act to excise certain Australian territory from the migration zone under the Migration Act 1958 for purposes related to unauthorised arrivals, and for related purposes.

It's the words I have emphasised that twist the whole thing around.

The original legislation applied to the islands around Australia's northern perimeter, particularly Christmas Island, the Cocos (Keeling) Islands and the Ashmore and Cartier Island group, where most asylum seeker boats arrive. There was never any intention to cut these places out of the migration zone altogether. If that had been done, foreigners would not need visas to enter or remain there.

The effect of the "excision" was no more (nor less) than the removal of the right of a person who had arrived in one of those places without a visa to apply for a protection visa on arrival. Australia thus became the first country in the world to treat asylum seekers differently depending on which part of the national territory they arrived at.

The legislation that has just passed the Senate does not "excise" the rest of the country from the migration zone. If it did, Australia would have no borders and no visas would be required for anyone to enter or stay here. What the latest amendment does is even more astonishing.

Instead of distinguishing between the places of arrival of asylum seekers, we will now distinguish between methods of arrival. What matters under the new legislation is not where an asylum seeker enters Australian territory, but how they do it. Arrivals by air will have certain rights, arrivals by sea will not. Another Australian first in international law.

There are of course a few grey areas. What about flying boats? Hovercraft? Water wings? Aquambulation? Indigenous Australians might be excused for thinking that these laws should have been introduced a couple of hundred years ago. They certainly highlight a fascinating paranoia in the white Australian psyche.

So what difference does it make how an asylum seeker gets here? Absolutely none, according to international law. If any distinction were to be made as a practical matter, the following facts would have to be taken into account:

  1. Asylum seekers arriving by boat are far more likely to be found to be genuine refugees than those arriving by plane.
  2. Plane arrivals are just as likely as boat arrivals to have lied about their intentions in coming here and/or to have paid a lot of money for fake documentation.
  3. There are no "good" refugees who wait patiently in camps while the "bad" refugees get into boats. Any genuine refugee would get into the first boat that came along if there was one.
  4. Being nasty to asylum seekers, being really nasty, being really really nasty, being downright bloody inhuman, doesn't deter them. It just adds to their suffering.

Well, four months to go before the day arrives when Tony Abbott wakes up as prime minister and has to figure out how one actually "stops the boats". Labor did its worst, so maybe bring about world peace and end inequality, racism and intolerance? Go for it Tony!

This article was first published at migrantlaw.blogspot.com.au.

New Matilda

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