Immigration Control beyond Australia’s Border
December 15, 2014
“Irregular maritime arrivals” – people who arrive by boat without authorization – have occupied the attention of successive Australian administrations since the 1970s (Phillips and Spinks 2013). The last two decades, in particular, have seen administrations from both sides of the political spectrum employ tough measures aimed at deterring irregular maritime arrivals, including mandatory detention, maritime interception, turn-backs, and offshore processing. These policies – in Australia and elsewhere – are criticized for impeding the rights to seek asylum, to humane reception conditions, to non-refoulement, to liberty and security of person, and to the prohibition of arbitrary deprivation of liberty (Edwards 2011).
The number of irregular maritime arrivals in Australia fluctuated considerably between 1973 and 2013, ranging from zero to several thousand (Phillips and Spinks 2013, appendix b). During periods with few boat arrivals, the issue has received less attention. Since late-2008, boat arrivals have once more been on the rise following a relative low between 2003 and 2007, and the debate regarding how best to handle the issue has flared once again (ibid.). The Australian government reported 25,173 irregular maritime arrivals in fiscal year (FY) 2012-2013 – the highest level on record, and a considerable increase from the previous high of 7,983 in FY 2011-2012 (ibid., appendix b). In comparison, only 25 irregular maritime arrivals were recorded in FY 2007-2008 (ibid).
The contemporary rise has been accompanied by renewed government measures aimed at deterring unauthorized boat arrivals. For example, in August 2012 Australia’s parliament, under the incumbent Labor Party administration, approved legislation that once again authorized the transfer of irregular maritime arrivals who arrive by boat at excised offshore locations to be sent to Pacific island countries. Excised offshore locations are Australian islands which have been removed from its “migration zone,” meaning irregular migrants who arrive at an excised place are barred from applying for a visa and from the refugee status determination process available on the Australian mainland (Australian Human Rights Commission 2009). The August 2012 legislation reinstituted a policy that was previously terminated in 2008, after receiving criticism for being both costly and inhumane (Human Rights Watch 2012). The following year, in July 2013, the Labor Party went a step further and announced all irregular maritime arrivals who reach Australia would be sent to Papua New Guinea or Nauru for processing, and these individuals would have no prospect for resettlement in Australia.
Concern over irregular maritime arrivals featured prominently in the politics leading up to Australia’s 2013 federal election with both major parties promising to reduce the number of arrivals (McAdam 2013). On September 7, 2013, the Liberal/National Coalition defeated the incumbent Labor Party government. Tony Abbott, Australia’s new prime minister, demonstrated the weight given to this issue by commencing “Operation Sovereign Borders” the day he was sworn into office. Operation Sovereign Borders is a “military-led, border security operation established to ensure a whole-of-government effort to combat maritime people smuggling” (DIBP 2014, 6). It is a central part of the current policy pursued by the federal government and represents an intensified effort aimed at deterring irregular maritime arrivals.
Under Operation Sovereign Borders, it is the policy and practice of the Australian government to intercept any vessel that is seeking to enter Australia without authorization and remove it beyond its territorial waters (ACBPS 2013). This practice has been hailed as a success by the Coalition administration (Morrison 2014a). A November 4, 2014 government press release averred that only one boat with irregular maritime arrivals successfully reached Australia’s shore in the ten months since the government reintroduced its policy of turn-backs (Morrison 2014b). In contrast, in the ten months prior to the implementation of the government’s turn-back policy, 281 unauthorized boats arrived with a total of 19,578 people on board (ibid.).
The effort to deter unauthorized boat arrivals has largely taken place beyond Australia’s territorial borders, a practice that persists under the current administration. The Australian Minister for Immigration and Border Protection, Scott Morrison, stated:
We are engaging comprehensively in our region – with both source and transit countries. We have committed over [AUD] 100 million in regional collaboration initiatives … that have one simple objective – deterrence. (Morrison 2014c, emphasis added).
Over the last two decades, Australian government administrations have viewed the ability to suppress unauthorized boat arrivals as an important political goal. The Australian government has turned to extraterritorial activities to achieve this objective. In light of the renewed focus on preventing irregular maritime arrivals, a critical reflection on some of these measures is warranted.
Of particular relevance is the relationship between Australia’s extraterritorial activities and the development of immigration-related detention infrastructure in the Asia Pacific region. Over the last three decades, immigration-related detention has increasingly become an established policy in countries across the globe (Flynn 2014; Sampson and Mitchel 2013). Michael Flynn, Founder and Project Manager of the Global Detention Project, argues that efforts by industrialized countries to expand immigration control beyond their borders have contributed to the spread of immigration-related detention (2014). Flynn points out that many of these extraterritorial efforts have a shared quality in their emphasis on detention, including the establishment of offshore detention sites and promoting the development of detention institutions in neighboring countries (ibid.).
Australia, in this regard, is no exception. A number of the country’s extraterritorial activities have augmented and led to the creation of immigration-related detention facilities in the Asia-Pacific region. This is demonstrated by looking at arrangements between the Australian Department of Immigration and Border Protection (previously the Department of Immigration and Citizenship) and Indonesia, Papua New Guinea, and Nauru.
The Australian government engages in offshore border control measures to minimize the number of asylum seekers and other irregular migrants who reach its territory. Among these measures are arrangements with countries in the region to intercept individuals within their territory who appear intent on traveling to Australia without permission. Indonesia provides an important example of this development because the majority of asylum seekers and other irregular migrants who arrive by boat in Australia traverse through the country (Taylor 2010).
Two arrangements between Australia and Indonesia are particularly important in Australia’s efforts to suppress the number of irregular migrants who reach its territory: the regional cooperation arrangement, established in 2001, and the Management and Care of Irregular Immigrants Project, initiated in 2007 (Nethery, Rafferty-Brown, and Savitri 2012). Both of these arrangements have provided sustained funding, through the International Organization for Migration (IOM), to Indonesia for the management of irregular migrants intercepted on their way to Australia.
Under the regional cooperation arrangement, Indonesian authorities have agreed to intercept people thought to be intent on travelling irregularly to Australia and refer them to the IOM for “case management and care” (IOM Indonesia 2010). Subsequently, the IOM provides food, accommodation, emergency medical assistance, counselling, and transport to irregular migrants (DIBP 2014, 210). They also aid in the repatriation of individuals who wish to return to their country of origin (ibid.). Any irregular migrants who wish to make asylum claims are directed to the United Nations High Commissioner for Refugees (UNHCR), and the IOM continues to provide material assistance during the refugee status determination process (IOM Indonesia 2010). The IOM’s activities under this arrangement are fully funded by Australia (ibid.). On June 30, 2014, 5,222 irregular migrants were under IOM’s care in Indonesia (DIBP 2014, 210).
Pursuant to the regional cooperation arrangement, the IOM and Indonesian authorities work closely with Australia to manage the flow of irregular migrants through Indonesia. The overall policy objective is to reduce the number of people who reach Australia (Metcalfe 2010, 54-55). As the Secretary for the Department of Immigration and Citizenship, Andrew Metcalfe explained during a 2010 budget hearing in the Senate in response to an inquiry about increased funding to Indonesia for its regional cooperation arrangements:
The funding here is to provide additional funds to Indonesia to strengthen its capacity to manage [irregular migrants]. So it is part of the arrangements but a ramping up of the arrangements to try and assist Indonesia to prevent, detect, and hold people so that they are processed in Indonesia… That, of course, plays into an overall expectation that that would suppress the number of people coming to Australia. (Metcalfe 2010, 54).
Notably Metcalfe, during the budget hearing, described strengthening Indonesia’s immigration-related detention facilities as an important part of building Indonesia’s capability to manage irregular migrants (2010, 54-55). This demonstrated a propensity by the Australian government to see detention as a way to control irregular migration and prevent migrants from reaching its borders. The regional cooperation arrangement with Indonesia exemplifies an attempt to extend immigration control beyond Australia’s borders, an effort that has continued for more than 13 years.
The Management and Care of Irregular Immigrants Project, run by the IOM and funded by Australia, has financed the administration and refurbishment of detention centers throughout Indonesia. One of the first components of this project involved the renovation of Indonesia’s two largest immigration detention centers, located in Jakarta and Tanjung Pinang (IOM Indonesia 2010, 88-89). The renovation involved increasing the capacity of the Tanjung Pinang detention center from 100 to 400 people with a “surge capacity of 600 people” (Taylor 2010, 339). The Department of Immigration and Citizenship provided AUD 6.862 million to the IOM for this project in FY 2007-08 (DIAC 2008). In FY 2011-2012, the Department of Immigration and Citizenship allocated AUD 19.9 million for the upgrade and refurbishment of three additional immigration detention facilities (DIAC 2012).
Since the inauguration of the Management and Care of Irregular Immigrants Project in 2007, the annual reports for the Department of Immigration and Citizenship have consistently reported that funding was provided to the IOM to administer and undertake major renovations at various detention centers in Indonesia. In FY 2013-2014, for instance, the Australian government provided funding to “enhance Indonesian immigration detention and transit facilities” (DIPC 2014, 149) and to “support improvements to Indonesia’s immigration detention center network” (ibid., 121). The sustained presence of funding reported by the Australian government draws attention to the continued contribution Australia has played in developing Indonesia’s detention infrastructure.
Papua New Guinea and Nauru
As previously mentioned, in August 2012 Australia’s parliament approved legislation that permitted the transfer of irregular maritime arrivals who reach excised locations to be relocated to offshore processing centers in Nauru and Papua New Guinea. This revived a policy, known as the “Pacific Solution,” which began in 2001 and was terminated in 2008. The Australian government reestablished offshore processing as a “disincentive” to irregular maritime migration and to “encourage greater use of regular pathways” by asylum seekers (DIAC 2013, 9). The inferior conditions in offshore processing centers, the lack of access to the asylum laws and protections applied on Australia’s mainland, and the delayed resettlement (around five years) were intended to deter asylum seekers from getting on boats (McAdam 2013).
The reintroduction of offshore processing was accompanied by an expansion in immigration-related detention infrastructure in both countries. During FY 2012-2013, the Department of Immigration and Citizenship initiated work to establish permanent offshore processing centers in Papua New Guinea and Nauru to administer protection claims of irregular maritime arrivals transferred from Australia (DIAC 2013). Temporary facilities were put in place at both locations pending construction of the permanent facilities (ibid., 205).
The following year, the government announced a new policy involving regional resettlement arrangements with Nauru and Papua New Guinea. Under these arrangements all irregular maritime arrivals who reach Australian territory on or after July 19, 2013 are subject to mandatory detention and transfer to one of the two countries (DIBP 2014). Furthermore, persons who travel irregularly by sea, or who are intercepted at sea by Australian authorities in the course of trying to reach the country, are denied the possibility of settlement in Australia (ibid.). The full cost of implementing the arrangements in both locations is financed by Australia.
The new regional resettlement arrangements with Papua New Guinea and Nauru resulted in additional development of the immigration-related detention infrastructure in both locations. During FY 2013-14, a series of upgrades to the Nauru offshore processing center were completed. They included facilities such as accommodation for transferees and staff, a kitchen, dining and medical buildings, interview facilities, a warehouse, and educational and recreational facilities (DIBP 2014, 2000). A series of similar upgrades and improvements were carried out in Papua New Guinea at the Manus Island offshore processing center in Lombrum, as well as continuing with the construction program for a new center at East Lorengau (ibid.). Australia’s restoration of offshore processing illustrates an intensified attempt to prevent irregular migrants from reaching its borders by sea. It also demonstrates how Australia’s extraterritorial efforts have generated immigration-related detention centers in two Pacific island nations.
The endeavors by Australia to expand immigration control beyond its borders have had significant implications in the region. Not only have Australia’s activities in Indonesia, Papua New Guinea, and Nauru contributed to immigration-related detention in the Asia-Pacific, but they have also raised human rights concerns.
Two reports released by the United Nations High Commissioner for Refugees found that asylum-seekers who had been transferred from Australia to Nauru and Papua New Guinea were living in conditions that did not meet international standards of treatment (UNHCR 2013a; UNHCR 2013b). The Australian Human Rights Commission also raised concerns about Australia’s use of offshore processing, including its compliance with non-refoulement obligations and its complicity in arbitrary detention (2013, 7 & 9).
Additionally, the interception and detention of irregular migrants in Indonesia provides significant barriers to the right to seek-asylum (Nethery, Rafferty-Brown, and Taylor 2012). This is a particular concern in light of the range of vulnerable populations in the Asia-Pacific region, such as the stateless Rohingya and populations from Afghanistan, Iraq, and Pakistan.
Center for Migration Studies
 Turn-backs refer to a policy where Australian authorities intercept boats caring irregular migrants in Australian territory and return the boats back to Indonesian waters.
 Australia’s fiscal year (more commonly known as the financial year) begins on July 1st and ends on June 30th.
 Data includes arrivals at both excised and non-excised places; it excludes crew members and boat turn-backs.
 Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012, section 198AA(b) and 198AD(2).
 The first territories were excised under the Migration Amendment (Excision from the Migration Zone) Act 2001. Further islands were excised by the Migration Amendment Regulations 2005. The excised places include Ashmore Reef, Cartier Island, Christmas Island, Cocos (Keeling) Island, and other territories external to Australia’s mainland.
 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013. This amendment removed the definition of “offshore entry person” from section 5(1) of the 1958 Migration Act and inserted a new definition of “unauthorised maritime arrivals,” which is defined as a person who enters Australia without authorization by sea at an excised offshore place, or any other place. The amendment allows all irregular maritime arrivals to be transferred to offshore processing centers. Previously, only those who were intercepted in waters on the way to Australia or arrived at an excised offshore place were liable for transfer. Effectively, this amendment excised Australia’s mainland from the asylum laws and protections applied under Australian law, for all individuals who arrive by boat.
 Although the majority of public attention and political rhetoric is focused on suppressing irregular maritime arrivals, Australia’s extraterritorial activities are not limited to this. For example, Australian airline liaison officials, specialist document examiners, are dispatched at airports around the world. The airline liaison officials represent an attempt to intercept individuals traveling to Australia with fraudulent or no visas (Taylor 2008). Australia also imposes penalties on international carriers (air and sea) if they bring non-citizens into the country without a valid visa (ibid.).
 In September 2013, the Coalition administration changed the name of the government’s immigration department from the Department of Immigration and Citizenship to the Department of Immigration and Border Protection (DIBP 2014).
 See e.g. DIAC 2008; DIAC 2010; DIAC 12; DIAC 2013, 219; and DIBP 2014
 Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012, section 198AA(b) and 198AD(2). This policy also includes individuals who are intercepted at sea on their way to Australia. The transfers of irregular maritime arrivals to Nauru started on 14 September 2012 and to Papua New Guinea on 21 November 2012 (DIAC 2013).
 The Pacific Solution was a set of legislative changes adopted by the Australian Parliament in September 2001 that allowed for the detention of unauthorized migrants and asylum seekers on Pacific island nations. Under the legislative changes, the 1958 Migration Act was revised to exclude Ashmore Reef, Cartier Island, Christmas Island, Cocos (Keeling) Island, and other territories external to Australia, establishing them as excised places. Asylum seekers and other irregular migrants who arrived by boat in excised offshore places were excluded from the refugee status determination system applied on Australia’s mainland under Australian law (Australian Human Rights Commission 2009).
 See Regional resettlement arrangement between Australia and Papua New Guinea
(August 6, 2013, available here); and Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain persons, and related issues (July 19, 2013, available here).
 This includes irregular maritime migrants who were intercepted in waters on the way to Australia, arrived at an excised offshore place, reached Australia’s mainland, or entered any other place within Australian territory. Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013.
 If the transferees are found to be owed refugee protection, they will be settled in Papua New Guinea, Nauru, or in another country other than Australia. Those who are found not to be owed protection may be returned to their country of origin, a country where they hold residence, or held in a transit facility (DIBP 2014, 151).
 See the memorandums of understanding for Nauru and Papua New Guinea. The Australian government will also provide development aid to Papua New Guinea in addition to the costs incurred for the specific operation outlined in the memorandum of understanding. This will be on top of Australia’s current allotment of development aid to Papua New Guinea.
 The work included the construction of additional transferee accommodation and covered recreational areas, the installation of a larger kitchen, establishing a transferee canteen, increasing data and internet capacity, and enclosing a sporting oval for transferees’ recreation.
ACBPS (Australian Customs and Border Protection Service). 2013. “The Rules Have Changed. Check the Facts.” http://www.customs.gov.au/site/Translations/english-o.asp.
Australian Human Rights Commission. 2009. Immigration Detention and Offshore Processing on Christmas Island. Sydney: Australian Human Rights Commission. http://www.refworld.org/pdfid/4bbd8c292.pdf.
______. 2013. Human Rights Issues Raised by the Third Country Processing Regime. Sydney: Australian Human Rights Commission.
DIAC (Department of Immigration and Citizenship). 2008. Annual Report 2007-08. Canberra: Australian Government. http://www.immi.gov.au/about/reports/annual/2007-08/html/outcome1/administered1-11.htm.
______. 2010. Annual Report 2009-10. Canberra: Australian Government. http://www.immi.gov.au/about/reports/annual/2009-10/html/outcome-4/administered4-3-2.htm.
______. 2012. Annual Report 2011-12. Canberra: Australian Government. http://www.immi.gov.au/about/reports/annual/2011-12/html/performance/outcome_4/program_4.3/administered_items.htm.
______. 2013. Annual Report 2012-13. Canberra: Australian Government. http://www.immi.gov.au/about/reports/annual/2012-13/pdf/2012-13-diac-annual-report.pdf.
DIBP (Department of Immigration and Border Protection). 2014. Annual Report 2013-14. Canberra: Australian Government. http://www.immi.gov.au/about/reports/annual/2013-14/pdf/2013-14-annual-report.pdf.
Edwards, Alice. 2011. Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum Seekers, Stateless Persons and Other Migrants. Geneva: United Nations High Commissioner for Refugees. http://www.refworld.org/pdfid/4dc935fd2.pdf.
Flynn, Michael. 2014. “There and Back Again: On the Diffusion of Immigration Detention.” Journal on Migration and Human Security 2(3): 165-97. https://doi.org/10.1177/233150241400200302.
______. 2011. “Immigration Detention and Proportionality.” Global Detention Project Working Paper No. 4. Geneva: Global Detention Project. https://www.globaldetentionproject.org/wp-content/uploads/2016/06/GDP_detention_and_proportionality_workingpaper.pdf.
Human Rights Watch. 2012. “Australia: ‘Pacific Solution’ Redux: New Refugee Law Discriminatory, Arbitrary, Unfair, Inhumane.” Washington, DC: Human Rights Watch. http://www.hrw.org/news/2012/08/17/australia-pacific-solution-redux.
IOM (International Organization for Migration) Indonesia. 2010. Annual Report 2009. Jakarta: International Organization for Migration Indonesia. http://reliefweb.int/sites/reliefweb.int/files/resources/76DB57141F1C7742492576F6001BD545-Full_Report.pdf.
McAdam, Jane. 2013. “Australia and Asylum Seekers”. International Journal of Refugee Law 25(3): 435-48.
Metcalfe, Andrew. 2010. “Official Committee Hansard: Budget Estimates.” Hearing before the Senate Standing Committee on Legal and Constitutional Affairs, May 27, 2010. Canberra: Australian Senate. http://www.aph.gov.au/~/media/Estimates/Live/commttee/S13016.ashx.
Morrison, Scott. 2014a. “More Progress on PNG Resettlement Arrangement as First Refugee Determinations Handed Down. Canberra: Immigration and Border Protection. http://www.minister.immi.gov.au/media/sm/2014/sm219151.htm.
______. 2014b. “100 Days Since Last People Smuggling Venture Reached Australia.” Canberra: Immigration and Border Protection. http://www.minister.immi.gov.au/media/sm/2014/sm218851.htm.
______. 2014c. “A New Force Protecting Australia’s Borders.” Address to the Lowy Institute for International Policy. May 9, 2014. Sydney: Immigration and Border Protection. http://www.minister.immi.gov.au/media/sm/2014/sm214247.htm.
Nethery, Amy, Brynna Rafferty-Brown, and Savitri Taylor. 2012. “Exporting Detention: Australia-Funded Immigration Detention in Indonesia.” Journal of Refugee Studies 26(1): 88-109.
Phillips, Janet and Harriet Spinks. 2013. “Boat Arrival in Australia since 1976.” Research Paper. Canberra: Parliament of Australia, Department of Parliamentary Services. http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/BoatArrivals.
Sampson, Robyn C. and Grant Mitchell. 2013. “Global Trends in Immigration Detention and Alternatives to Detention: Practical, Political and Symbolic Rationales.” Journal on Migration and Human Security 1(3): 97-121. https://doi.org/10.1177/233150241300100302.
Taylor, Savitri. 2008. “Offshore Barriers to Asylum Seeker Movement: The Excerise of Power Without Responsibility?” In Forced Migration, Human Rights, and Security, edited by Jane McAdam, 93-127. Oxford: Hart Publishing.
______. 2010. “Australian Funded Care and Maintenance of Asylum Seekers in Indonesia and Papua New Guinea: All Care but No Responsibility?” UNSW Law Journal 33(2): 337-359.
UNHCR (United Nations High Commissioner of Refugees). 2013a. “UNHCR Monitoring Visit to the Republic of Nauru.” Geneva: United Nations High Commissioner of Refugees. http://unhcr.org.au/unhcr/images/UNHCR%20Monitoring%20Report%20Nauru.pdf.
______ 2013b. “UNHCR Monitoring Visit to Manus Island, Papua New Guinea. Geneva: United Nations High Commissioner of Refugees. http://unhcr.org.au/unhcr/images/2013-11-26%20Report%20of%20UNHCR%20Visit%20to%20Manus%20Island%20PNG%2023-25%20October%202013.pdf.