How a Body Becomes a Boat: Critical Methods of Reading the Meaning and Operation of Australian Refugee Law

Abstract

Australian refugee law, particularly as it pertains to people who travel to Australia by boat, has been marked by: exclusion from the protection and recognition of the general law; the distancing of responsibility through the use of offshore processing; and the expansion of the state's authority to use force as an administrative power. Legislative reforms and judicial interpretation of the validity of these powers have mostly affirmed the place of this exceptional area of law within the Australian legal system, or led to further amendments that intensify the differentiated treatment of this category of legal subject. Jurisprudence and scholarship from international law have repeatedly characterised Australian refugee law as in breach of Australia's commitments to human rights and refugee protection, but they have an easily displaced force in the domestic context. Australian refugee law can, therefore, be characterised as repeating a forceful logic that the government has the authority to do everything possible to police the border and prevent its breach. This thesis uses a law and humanities and critical legal theory approach to examine Australian refugee law to generate analyses of the different ways that legal meaning is made and to find resources within legal texts through which to understand how the law could be construed otherwise. While the law has distinct modes of operation that must be grappled with, doctrine alone does not capture everything that happens at the moments that the world is translated into law. Moreover, the language and meaning of the law is not completely foreclosed by its institutional interpretation. Scholarship in the law and humanities shows that considering the law through the lens of other aesthetic forms and logics can lead to productive critical insights about the law. Such approaches analyse how legal effects circulate with affects and logics that contribute to the formation of legal meaning and the discourse on the authority, legitimacy, and limits of the law. Following the traditions of law and humanities and critical legal theory, this thesis conducts four readings that engage with the problem of the seemingly intractableness of Australian refugee law, analysing them through other forms of text - metaphor, image, temporal and kinetic logic, horror film - to open up the different meanings operating beneath the abstract surface of the legal rules. The analyses deconstruct: the contingent formation of the border in the discourse of the 'queue', the use of the 'boat' image in constructing the refugee as a legal subject, the limiting of the judiciary's ability to sense motion and recognise government responsibility for its actions, and the way in which the form of legal power expressed in refugee law depends upon the fragmentation and control of bodies. These four readings of specific aspects of Australian refugee law generate insights about the modes of meaning making deployed there, and offer a critique of what these aspects of law tell us about the broader context of the powers and operations of the legal system. In each of these readings, the ways in which interpretation makes and does not make a difference in shifting the meaning of Australian refugee law are identified. Through this project of readings, this thesis demonstrates and emphasies the methodological productivity that resides in dwelling with these modes of interpretation in law and aesthetics. I contend that examining instances of refugee law poetically for what kind of world they create and what meaning they make available, renews a sense of ethical responsibility towards the form of law that revives the dead letter and which can be taken up by anyone. The present state of the rules may be one way, but the form of law contains the conditions for its own difference. Show more