Professor Alison Gerard is the Head of the Canberra Law School, University of Canberra. Her research examines the criminalisation of certain populations including children in residential care and non-citizens. Alison is part of an Australian Research Council funded project (with Professor Leanne Weber, Associate Professor Marinella Marmo, Dr Faith Gordon and Professor Mary Bosworth) that is analysing the criminal deportation system. In this post she reflects on the selective use of criminal justice provisions to deter mobility and the expanding populations now subject to crimmigration practice in Australia.

australia ban

A new front in crimmigration practice has opened in Australia to (perhaps unexpected) broad national and international condemnation. The merging of criminal and immigration laws to target citizens and permanent residents, under the auspices of a COVID-19 emergency response, has brought the government under intense scrutiny in a way that the implementation of other crimmigration practices during the pandemic have been unable to generate.

In response to the devastating scenes of catastrophe as India battles a second wave of coronavirus infections, the Australian Government announced an emergency declaration on 30 April 2021 that all travellers returning from India, including Australian citizens and permanent residents, would face thousands of dollars in fines and up to 5 years imprisonment. A legal challenge to this measure was recently defeated in the Federal Court of Australia but a constitutional challenge may go ahead.   

Pitched as a ‘temporary pause’ expiring on 15 May 2021, the travel ban applies to all travellers, failing to distinguish between Australian citizens, Australian permanent residents and foreign nationals. As such, it represents an expansion of crimmigration practice to target citizens and further entangle non-citizens.

The Australian Government has introduced unprecedented controls on the mobility of its citizens and non-citizens since the start of the pandemic. Australia’s borders were effectively closed in March 2020 with Australian citizens and permanent residents only allowed to depart the country in limited circumstances. The only change to this has been a bubble negotiated with New Zealand that came into effect on 19 April 2021. There was no previous ban on Australian citizens or permanent residents returning to Australia, nor their immediate family members, despite logistical challenges – few flights and limited availability of places in mandatory quarantine - effectively ensuring many cannot, and still are unable, to return to Australia.

Whilst criminal penalties for breaching emergency declarations have been part of the Biosecurity Act 2015 (Cth) since its inception, they have been rapidly, loudly and uniquely applied in this instance to Australian citizens and permanent residents returning from India. An expected 9000 people in India are left stranded by this measure.

Selective Use of Criminal Penalties to Target People Returning from India

Policy approaches targeting a racialised ‘other’ were central to the birth of Australia as a nation-state. Such matters were made concrete by one of the first pieces of legislation passed by the Federal parliament in 1901, the so-called ‘White Australia Policy’, which sought to limit migration from outside of Britain.

Legacies of colonization that use criminalisation as their centrepiece have been particularly evident during the pandemic. Research on the policing of biosecurity powers during COVID-19, for example, shows that criminalisation has intensified for Aboriginal and Torres Strait Islander people. Systemic racism and preventable deaths in custody persist.

Well before the pandemic, the pursuit of border controls to exclude and deter most commonly targeted those seeking asylum. Australia’s approach to border control is one of the harshest in the world and includes maritime interdiction, boat turn-backs, mandatory detention and excising the country from claims for refugee protection.

The Australian Government has carefully curated migration pathways. Australians born in India comprise almost 3 percent of the population and the Australian Indian community is widely recognised as providing to the country’s economic, cultural and social landscape. Australia has welcomed an increase in migration from India through education and skilled migration that addressed labour shortages. Indian students represent the second largest proportion of international students in Australia, an industry valued at $18.8 billion in 2014-2015. India does not allow dual citizenship so many Australian citizens born in India have had to relinquish Indian citizenship.

The announcement of a travel ban on people returning from India was a public spectacle with considerable emphasis placed on the threat of criminal sanctions to ensure the Australian Government could ‘send a message’. The announcement was dubiously presented as a public health measure. I say dubious because the government have only relied upon select statistics to show an increase in hotel quarantine infections from travellers arriving from India as justification of this decision.

The statistics released show that in April this year, 210 travellers from India tested positive to COVID-19. This was compared with 62 cases from the US at the height of their devastating recent wave. A larger number of travellers are thought to have arrived from India compared with the United States, but overall numbers have not been released by the Australian Government. Certainly the Chief Medical Officer confirmed that no recommendation to have criminal penalties for emergency health orders was advised. Regardless, this measure cannot be seen as ‘race-neutral’. Rather, the ban presents as a new hierarchy of citizens and the expansion of mechanisms designed to target non-citizens.

Why even the ‘very remote’ chance of criminal penalties matter

In response to the widespread condemnation of the attachment of criminal penalties to returning Australian citizens and permanent residents, the Prime Minster claimed that it would only be in ‘very remote circumstances’ that these penalties would be imposed. Putting aside the concession to the public spectacle made clear in this response, the Prime Minister is also showcasing he is demonstrably unaware of the significant penalties that face non-citizens in Australia who face deportation on suspected ‘character grounds’.

Recent changes to the Migration Act 1958 (Cth) now compel the Minister to cancel the visa of someone who fails the ‘character test’. The ‘character test’ is defined in section 501 to include someone who is sentenced to 12 months or more in prison. Therefore, these provisions could also lead to the deportation of non-citizens, having a cascading and significant impact on families, workplaces and communities in Australia.

Crimmigration’s New Critics?

Whether aware of it or not, the critics of this Australian Government response draw into question the merger of criminal and immigration laws and their draconian use to exclude. Strong reactions from unlikely groups have condemned this specific crimmigration practice. A former Australian cricketer in India commentating on the Indian Premier League said the Australian Prime Minister had ‘blood on his hands’. Even an Australian media commentator who has previously breached the Racial Discrimination Act 1975 (Cth) and was recently criticised by the Australian Press Council for promulgating racist views, claimed the Australian Government’s response ‘stinks of racism’.

Several other recent crimmigration practices have not met with the same response. A fervent increase in the deportation of New Zealand citizens from Australia since character provisions were introduced has created diplomatic tensions between the two countries. In a new low in relations, and in a possible breach of international human rights provisions, a 15-year old boy was deported to New Zealand in early March 2021. The Minister for Home Affairs at the time, Minister Peter Dutton, described the deportation in dehumanising language as “It's taking out the trash, then we can make Australia a safer place".

So what does this latest development in Australian crimmigration practice mean for citizens? It confirms that Stumpf was right to predict that more intrusive measures would ensue. In Stumpf’s original contribution, crimmigration was depicted as providing the mechanisms to exclude. But I wonder if even Stumpf envisaged that citizens would be ensnared so easily in crimmigration architecture. Stumpf relied on membership theory to analyse how positive rights and privileges are reserved for those who enjoy a social contract with the government. Citizenship could not be a more obvious social contract, yet ultimately brittle when ‘exceptional’ responses are conceived.

The casual degradation of citizenship rights and the rights of permanent residents has now rocketed into the spotlight against a backdrop of racism, risk and emergency. A recent issue of the Australian journal Current Issues in Criminal Justice served to highlight the national and regional impacts of COVID-19 on criminal justice practice and flagged that the use of emergency powers is likely to have worsening consequences. We ought not miss this opportunity to join the dots on what inappropriate use of powers under the guise of policing health ‘risks’ can look like so we can arrest its contagion.

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How to cite this blog post (Harvard style) 

Gerard, A. (2021). Travel Bans and Crimmigration: A New Front for Australia. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/05/travel-bans-and [date]