A Discussion of the Politics of Power and Control in Migration Law:Perspectives from Australia and the United States

Migration law has captured a key role on the international stage following the widely-reported telephone conversation between Australia’s Prime Minister Malcolm Turnbull and US President Donald Trump. The conversation was prompted by President Trump’s executive order to ban migration from seven middle-eastern states for 90 days, and halt total refugee migration for 120 days, with Syrian refugees facing an indefinite ban. This had an immediate impact on Australia, as prior to President Trump’s election, Australia had struck a deal with the US to settle 1,250 assessed refugees currently held in its offshore detention centres on Nauru and Manus Island, Papua New Guinea. While the migration ban has been denounced as ‘unprecedented’ in the United States, Australia has a history of utilising the same power and control politics to develop its migration laws and policies – from the 2001 Tampa crisis, which resulted in then Prime Minister John Howard introducing the Pacific Solution, to Prime Minister Tony Abbott’s revival of the same policy in September 2013. The politics of power and control in migration law surrounding maritime asylum seeker arrivals is materially similar – its purpose is to control the flow of refugees arriving at the nation’s border. In Australia, the history of refugee treatment has been fraught with opposition. In seminal cases when the Government’s policy has been found to be invalid by the Judiciary, the Government exploits power and control politics to sway the Legislature into amending the offending legislation. President Trump’s criticism of the US Judiciary’s decision to grant a temporary restraining order exhibits similar power and control politics currently playing out in the US. While the public denouncement of President Trump’s political methods surrounding the migration ban gains notoriety, it is important to recognise the same power and control methods are used closer to home.