We Will Decide Who Comes to this Country, and How They Behave: A Critical Reading of the Asylum Seeker Code of Behaviour
(2015) 40(3) Alternative Law Journal 175
5 Pages Posted: 18 Jan 2016
Date Written: September 18, 2015
This article conducts a close reading of the asylum seeker Code of Behaviour (‘the Code’), which commenced operation in December 2013. The Code applies to all so-called ‘illegal maritime arrivals’ who apply for or seek to renew a bridging visa. In order to access a bridging visa, this group of asylum seekers must sign the Code, and are thereafter bound by a ‘list of expectations’ about how to behave at all times while in Australia. Its expectations range from obeying the law, to refraining from spreading rumours, spitting or swearing in public, or persistently irritating anyone. Signing and adhering to the Code is a precondition for an asylum seeker either to be released from detention or to remain in the community. Despite being in force for nearly two years, the introduction and implementation of the Code have received little media attention or academic scrutiny.
In this article we argue that the Code is a rhetorical tool, aimed at positioning asylum seekers arriving by boat outside the imagined borders of ‘the Australian community’. In addition to critiquing the Code’s rhetorical impact, we highlight the negative impact of the Code on the lives of asylum seekers, and its glaring absence of procedural fairness guarantees. The article firstly outlines the genesis of the Code, the substance of its provisions, and consequences for breaching them. Following this, it conducts a critical analysis of the Code’s enforcement and operation to date, with reference to data obtained from the Department of Immigration and Border Protection (‘DIBP’) under a Freedom of Information (‘FOI’) request. The final part of the article evaluates the practical and rhetorical impact of the Code.
Our central argument is that the Australian Government has exploited the Code primarily as a rhetorical tool; it depicts us — ‘the Australian community’, as potential victims, threatened by them — ‘illegal maritime arrivals’. The Code propagates a sentiment of ‘paranoid nationalism’ among the Australian public, constructing asylum seekers as pre-criminal, racialised ‘others’, who must assimilate and adopt imagined standards of Australian civility. While the Code functions rhetorically to persuade the public to fear and resent asylum seekers, it also has harmful material effects. The Code subjects asylum seekers to the ongoing threat of surveillance and policing of its terms by ‘all members of the community’. And given the severe consequences of breaching the Code, including income reduction and incarceration, it increases the insecurity already experienced by asylum seekers on bridging visas.
Keywords: asylum seekers, immigration, citizenship, policing, punishment, criminal law, criminal procedure, code of behaviour, rhetoric, othering
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