Special Issue: Genealogies of Indefinite Detention

In 2018, the Manus Island Recording Collective produced ‘How are you today?’ The work consists of 84 daily recordings of exactly 10 minutes, 14 hours in total, sent ‘on shore’ to Melbourne, Australia from Manus Island, Papua New Guinea. Each recording, sent via WhatsApp, capturing a fragment of the daily life of one of six men then confined to this small island at the edge of the Bismarck Sea. ¹ These recordings were then played in a Melbourne art gallery at a fixed time each day. ² The six were among the nearly 2000 asylum seekers and refugees, who, since 2013, have been detained on Manus, intercepted while trying to reach Australia by boat, or transferred from immigration detention in Australia. The detention centres on Manus Island and on Nauru, along with the boat turn-backs conducted under ‘Operation Sovereign Borders’, and the attendant off-shore (and on-boat) processing of asylum claims made by those who attempt to arrive by boat are an integral part of Australia’s ‘border protection’ regime. In the lead up to the opening of the exhibition of which ‘How are you today?’ was a part, a question arose as to the wording for the didactic panel accompanying the audio broadcast/work. Aware that the conventional designations of an artist’s location and place of work would be inadequate to describe the living conditions of the six recording artists, the curatorial text eventually settled on describing the six men as, ‘Forcibly transferred from Australia to Manus Island, Papua New Guinea, where they remain.’ This wording on the didactic panel was taken from the judgment of the Papua New Guinea Supreme Court in 2016, a decision which declared the continuing detention of asylum seekers in the Manus Island Processing Centre to be unconstitutional, precipitated the formal closure of that Centre in October 2017, and led to the forceable relocation of those still living there to new facilities in the nearby town of Lorengua (Manus Recording Project Collective, 2019).

Among those who contributed recordings for ‘How are you today?’ was the author, Behrouz Boochani, whose extraordinary book, No Friend but the Mountains, ³ at once socio-political and poetic, offers a devastating, lyrical insight into the daily conditions imposed by Australia’s off-shore detention regime, and a compelling critique of a ‘Kryiarchal System’: a term chosen to draw attention to the interlocking, multiple ‘structures of power and domination that produced and governed Manus Prison…that connects the prison with Australian colonial history’ (Tofighian, 2018). Almost all of those who remain on Manus have been found to be refugees to whom Australia owes protection, but find themselves living under an indefinite detention regime, made all the more intractable by the fact that the Australian government has simultaneously outsourced their obligations, disclaiming responsibility, while simultaneously obstructing or blocking the exit of refugees to third countries willing to accept them (McAdam and Chong, 2019: 147). And, while decisions of Ministers and their departments have been challenged through conventional processes of judicial review, it has been repeatedly confirmed that the indefinite detention of asylum seekers or refugees (including those held on-shore) is lawful (McAdam and Chong, 2019: 96), just as this detention has been repeatedly justified by Australian governments as a necessary means of maintaining sovereignty, border integrity, and, critically, national identity.

The collection of essays in this Special Issue came together in response to a challenge left by the late Professor Penny Pether, a leading Australian socio-legal scholar, genuinely interdisciplinary, whose work evinced a ‘fierce and critical faith’ in the possibilities of legal scholarship and sometimes of law (Pugliese and Kramer, 2015; Tomlins, 2015), even as she exposed the complexity and limitations of conventional understandings of ‘progressive’ legal decisions and interventions (eg. Pether, 1998). Her academic work and life work retained a ‘visceral’ commitment to justice (Pether, cited in Tomlins, 2015: 667) and she demanded an equivalent commitment from those with whom she communicated. At the time of her death, nearly two decades after she had relocated from Australia to the US, Pether was working on a book, the proposal outlining her plan to offer what would have been a comparative and detailed account of how apparently divergent detention regimes were, or could come to be, indefinite. Her book proposal carried the provisional, provocative, title, ‘“Perverts,” “terrorists,” and business as usual: Comparative Indefinite Detentions before and after 9/11’. This book would have built on some of the arguments contained in her similarly titled article, ‘“Perverts”, “terrorists,” and business as usual: Fantasies and genealogies of U.S. law’ (Pether, 2012). And, while her intended starting point was to have been a comparison between the different detention practices and policies directed towards those suspected of terrorist involvement, at the heart of her proposal was a turn from this well-traversed territory to the ‘proliferation of indefinite detention regimes in the US’, in particular those targeting sexual deviancy and those that had emerged in response to perceived racial threats. Her themes, as she outlined in the work that was available, included a call to understand contemporary indefinite detention regimes, including those directed towards terrorism suspects, as continuous, rather than exceptional, and, importantly, to range across the less obvious racialized forms of indefinite detention that preceded current, more recognizably carceral instances of detention. In particular, Pether’s approach to the topic foregrounded the settler-colonial dimension of current regimes, emphasizing, for example that lines could be traced between the control of Indigenous and other racial groups, most obviously in the US the over-representation of African Americans in prisons. That is, she emphasized the role of indefinite detention as a means of managing populations and groups, and in particular populations that threatened, but were at the same time constitutive of the contemporary settler-colonial state. In other words, Pether was arguing that contemporary indefinite/preventative detention regimes needed to be situated historically as ‘a technique for governing populations seen as distinct threats to the national imaginary’ (Pether, undated, emphasis added). Pether’s proposal also contained hints of an argument she makes elsewhere, that practices of indefinite detention were critical to settler-colonial nation building, and viewed in this way, such practices were instances not of exclusion or eradication per se, though they may have that effect, but of forcible inclusion into the new nation state. Situated in this way, the ‘extra-legal’ route taken by the United States as it established the black sites in Guantanamo Bay and elsewhere, can no longer be seen as ‘un-American’, or ‘imagined as an exceptional national practice, responsive to the particular exigencies of the “War on Terror” and 9/11, a phenomenological exception to the way that this ‘nation of laws’ is itself constituted’ (Pether, undated). Instead indefinite detention must be seen as a ‘national trope, sourced in the violence of colonialism,’ in the US and elsewhere, and necessary to the formation of the new settler-colonial state. With this aim in mind, the comparative elements of her proposal included an analysis of both the US and Australian contemporary detention regimes, but also of earlier war time internments. Her book was to have traversed the conduct of the British government in Ireland, and then extended to an analysis of earlier colonial expansions in Imperial India. It was to have paid distinct attention to preventative regimes targeting populations deemed sexually deviant, as well as putatively ‘protective’ regimes aimed at managing the (dangerous) black child. While the book proposal was aimed at a US audience, there were hints that the comparative analysis would have also included reflection on the management of the population of Indigenous Australians via ‘protective’ welfare regimes that were highly restrictive across spatial and personal dimensions.

Wanting to develop and build on the framework left behind by Penny in her book proposal and related work, our initial intention was to take each of proposed chapters outlined in the proposal and invite scholars to write a version of that chapter, with a view to publishing a collection that would map onto the structure outlined by Penny in the proposal, engaging with each of the topics she had outlined. However, as the project developed via a workshop, organized by Nan Seuffert, Joseph Pugliese and myself, and held at UNSW Sydney, ⁴ this was re-oriented towards a less prescriptive approach and one that was more clearly responsive to its new location. Situated as the project now was, in Australia – a settler-colonial state that has repeatedly failed to reckon with the violence underpinning both past and continuing Indigenous dispossession, and continues to block meaningful Constitutional recognition of Australia’s Indigenous peoples (Davis, 2019; Pearson, 2017; Reid, 2020) – attention turned more often to a localized application, while maintaining Pether’s trajectory of enlarging the analysis beyond the familiar ground of the putatively ‘exceptional’ detention regimes in the post 9/11 context. Her framework proposed a different set of ‘paradigm cases’: ‘the indefinite detention of the black man, the dangerous (black) child,…the stateless undocumented immigrant, and the sexually violent predator’ (Pether, undated). Similarly, it became apparent that the aspects of Penny’s project that reflected on the ‘everyday’ forms of indefinite detention, over the more spectacular anti-terrorism context, were the most productive in generating more nuanced understandings of, in her words, the ‘spread and mutation’ of indefinite detention as a ‘practice of governmentality’ (Pether, undated). As the shape of the collection shifted, following that initial workshop, the project was reframed as accounts that could offer, collectively or individually, genealogies of different practices of indefinite detention, with a view to reminding us of the ‘recurring constituting stories’ (Pether, 1998) that emerge at apparently disparate sites, and that are especially powerful in countries like Australia. And so, the collection of papers that have now been brought together for this special issue have each built on Penny’s project in different ways. Some, such as the papers by Pugliese and Perrara, or Tullich, have engaged in a more overt and direct dialogue with the arguments introduced in ‘“Perverts,” “Terrorists,” and Business as Usual’, but extending the consideration and application of those arguments to some new sites and locations. Some papers, such as those by Steele, Marchetti and Ransley, take up with greater particularity the experience of Indigenous people in Australia, enmeshed in what might be considered to be routine welfare or mental health regimes, that do not, on their face, bear much resemblance to traditional forms of custodial or carceral detention, but can none the less be seen as mutated forms of the segregated town camps and racially discriminatory tickets of leave imposed on Indigenous peoples in Australia alluded to by Penny in the opening to her book proposal.

The first paper in this collection, Nan Seuffert’s reading of Vittoria’s On the Indians opens with a reflection on Australia’s indefinite regime of asylum seekers who have arrived by boat, noting that the payment of one of the largest settlements recognizing human rights violations by the Australian government has served, perversly, to prevent open scrutiny of the abuse occurring in off-shore detention. She notes also that the figure of the refugee functions as a ‘necessary outsider to the production and maintenance of the citizen and legal system of the nation state’, and while apparently the refugee has a ‘right’ to travel, the reality is constrained movement, increasing hostility, and a hardening of national borders. In charting Vitoria’s arguments, Seuffert asks whether the contemporary construction, and by extension treatment, of refugee populations rely on the echoes and afterlife of the ‘configuration of colonized people as Supersinners’ (Seuffert, this volume, citing Sherwood). This construction of Native Americans as only partial legal subjects depended on attributing to them the unforgivable sins of bestiality, cannibalism and sodomy. And, as Seuffert points out, Vitoria made clear that it was (only) the colonizers that embodied full legal subjectivity, with its concomitant right to travel, while those with partial legal subjectivity were constrained by duties of what she terms  ‘extreme hospitality’ that were not in any way reciprocal. In charting these asymmetrical rights and responsibilities, and in arguing that this asymmetry has underexplored implications for the foundations of international law, Seuffert makes the point that the ‘sticky’ associations of the colonized with monstrous perversion resonate in the contemporary, punitive responses to those who are currently seeking refuge. Like Pether, Seuffert’s paper takes a long view of the ways in which contemporary regimes of indefinite detention, in border camps and interstitial zones that have been ‘excised’ from the reach of scrutiny and oversight, are justified in law and in the nationalist imagination.

The next paper, by Natsu Taylor Saito, ‘Indefinite Detention, Colonialism, and the Settler Prerogative in the United States’, perhaps maps most closely onto the contours of the original project sketched out in Penny’s proposal, taking as it does as its starting point the related argument made by Penny in the 2012 article referred to above that ‘indefinite detention is a national trope, sourced in the violence of colonialism’ (Pether, 2012: 2550). As Saito argues, in line with Penny’s approach, mass incarceration had been used in the US, routinely and regularly, as a strategy that enabled the appropriation of land and other natural resources, produced an accessible labour force, and justified the extension of sovereign prerogative in the name of maintaining social order. Saito’s genealogy of indefinite detentions in the United States ranges across three ‘dimensions’: the mass incarceration of Indigenous peoples, slavery (and its evolution into the carceral state), and the mass internment of immigrants on grounds of ‘national security’. Across each dimension, Saito builds an argument that demonstrates the constitutive character of each authorized regime. Saito’s concluding points, that this history enables us to better understand that these are each moments of ‘forceable inclusion’ necessary for the formation and maintenance of the settler colonial state, thus echo Seufert’s account of forced hospitality. And, similarly, Saito’s account emphasizes that these repeated, routine acts of large-scale detentions directed towards people of colour were authorized by law, even as they stripped out the ordinary protections associated with the rule of law. Thus, in line with Pether’s project, Saito’s account gives the lie to the belief that the indefinite detentions of the contemporary era can be seen as exceptional regimes.

This entanglement of detention regimes with national formation has a particular purchase in the Australian context. While Pether’s proposal did not necessarily engage as directly with refugee flows, immigration detention and border control, it seems inevitable that if she had been able to complete her proposed book that she would have tackled the increasingly draconian, damaging and deliberately punitive regime imposed on asylum seekers who have sought to arrive in Australia by boat. Suvendrini Perrara and Joseph Pugliese’s contribution clearly sees and makes these connections in their article, ‘Sexual Violence and the Border: Colonial Genealogies of US and Australian Immigration Detention Regimes’, placing also a particular emphasis on the gendered dimension of the privatized detention complex. The offshore processing and detention of asylum seekers in Australia is a politically charged, labyrinthine system, opportunistically initiated and maintained in different forms by both major political parties over the years (Thwaites, 2014: 103–108). The current arrangements are supported by bilateral agreements with PNG and Nauru, under which those countries agree to process asylum claims of those transferred from Australia, and to offer successful claimants ‘local’ settlement or, more reluctantly, resettlement in alternative third-party countries. ‘Australia is the only country to use offshore processing in this way’ (McAdam and Chong, 2019: 115), and it is a system that has been repeated found to be in breach of international law and humanitarian standards. A corollary of this offshore processing regime has been the (bipartisan) insistence that asylum seekers who have arrived in Australia by sea will never be allowed to settle permanently in Australia, regardless of whether or not they have been found to be refugees entitled to protection. It is important also to note the concomitant rise under Australia law of ‘fast-track’ and deceptively named ‘enhanced screening’ assessment processes, characterized by inadequate protections of procedural fairness and restricted avenues of appeal and review. There are, unsurprisingly, significant concerns as to whether the assessment of claims by PNG (and to a lesser extent by Nauru) is consistent with international law (McAdam and Chong, 2019: 126). Perrara and Pugliese’s rich and damning account sits alongside, also, the numerous reports documenting poor living conditions, failures to provide timely care, and the negative effects of prolonged, uncertain and indefinite detention on the health of refugees and asylum seekers held off-shore (eg. Ryan, 2018; Senate Legal and Constitutional Affairs Reference Committee, 2017:Chapter 2).

The next two articles, by Linda Steele, and by Elena Marchetti and Janet Ransley, turn more entirely to the Antipodes, and here we see an extension of what it means to be under a regime of (indefinite) detention explored though mental health and welfare regimes that impact, disproportionately, on Indigenous people in Australia, and in particular on those living in regional and remote areas of the country. Some contextualization, for readers not familiar with the contours of Indigenous affairs in Australia may be helpful here. Both papers (and the collection as a whole) need to be read in light of repeated failures to reckon with, or take responsibility for, the ongoing impact of colonization and violent dispossession. This manifests at all levels of government, from the swift and contemptuous rejection the constitutional reform proposals contained within the landmark 2017 Uluru Statement from the Heart (Davis, 2019; Pearson, 2017), to the disproportionate rates at which Indigenous men, women and children are incarcerated, to the ongoing removal of children from Aboriginal families on ‘welfare’ grounds occurring at rates that equal or outstrip those associated with forced removals of ‘the Stolen Generations’ (Family is Culture, 2019; HREOC, 1997), to the micro biopolitics of the mental health and alcohol restriction/treatment regimes detailed by Steele, Marchetti and Ransley. While it is not possible to do more than gesture towards some of this history, a key touch point, especially relevant to the background of Marchetti and Ransley’s piece, and one analysed by Pether herself, is that of the 2007 ‘Intervention’, hastily conceived by the conservative Howard government and embodied in the Northern Territory Emergency Response legislation. The law of the ‘Intervention’, among other things, suspended protections of the Commonwealth Racial Discrimination Act, allowed for the forcible transfer of Aboriginal land without ‘just terms’ compensation, imposed draconian and often counter-productive income management on individuals and families, and profoundly disrupted many of the imperfect, but nonetheless attentively negotiated community health and other initiatives on the ground (Anderson, 2015; Guluya, 2015; Watson, 2011). In her reading of the original ‘Intervention’ and its transformation and entrenchment by successive (Labor and Liberal) governments, Pether suggests that what can be seen is not merely a perversion of ‘protection’, or a opportunistic appeal to the ‘rights’ of the child, but something more complex, connected to her book proposal. She suggests that what can be seen in the ‘Intervention’ is ‘an emerging biopolitical technology of right discourse in the hands of a distinctively post-9/11 governments whose strategically narrowed and foreshortened reconstruction of a national historical imaginary registers the seductions of rendering invisible, say, a national history of racialized colonial violence that undermines the legitimacy of the nation itself’ (Pether, 2010: 33).

Ransley and Marchetti, in ‘Medicalizing the Detention of Aboriginal People in the Northern Territory: A New/Old Regime of Control?’, explore the impact of punitive alcohol management regimes ushered in by the Intervention, through an individual case study of the death of Ms Brown when she was being held involuntarily in an alcohol treatment facility in Alice Springs, in the Northern Territory. In their paper, Ransley and Marchetti trace the origins and mutations in earlier regulations addressing ‘inebriates’ and addicts. And, while acknowledging that there is and has been in some communities on country local support for alcohol restrictions, they make the case that contemporary alcohol restrictions and their associated coercive ‘treatment’ confinements are nonetheless directed primarily towards the control of perceived anti-social populations. Importantly, Ransley and Marchetti’s account draws attention to the point that whereas the management of inebriates might, in other contexts and countries, be best understood as a function of class relations, in Australia, such regimes are deeply imbricated in and by race. It can be difficult to comprehend from a distance the situation on the ground in places like Alice Springs with its satellite communities scattered across the artificial and incongruent jurisdictions of the Northern Territory, South Australia, and Western Australia, within which the alcohol management scheme(s) outlined by Ransley and Marchetti sit. The profound disruption to traditional authority, the scale of government indifference to accountability, the bewildering rate at which programmes are imposed and then dismantled, and the disorienting impact of the revolving door of policies, projects and personnel. And, it can be difficult to understand the nature and forms of local workarounds and everyday ‘resistance’, including resistance to alcohol and welfare management, that is a feature of remote community life, and which can serve also to exacerbate the rapid turnover of projects and the breakdown of ‘kartiya’ [white people] working in remote communities (Mahood, 2012). But while, as Ransley and Marchetti indicate, ‘the Intervention’ did represent a significant (further) disruption to existing and developing initiatives and relationships, it should not (following Pether) be regarded as exceptional, noting also that core elements of the ‘emergency’ response were retained by the subsequent (Labor) government and remain in place. From the massacres hidden in plain sight (Ryan et al., 2019), to the High Court’s casual authorization of a welfare regime that designated all Indigenous adults in the Northern Territory state wards, subject to arbitrary restrictions on their movement, association, marriage, employment, and the consumption of alcohol ( Namatjira v. Raabe, 1959), to the ongoing, proliferating restrictions consequent on ‘the Intervention’ and the imposition of racially discriminatory income management. These regimes are continuous. In her reading of the original ‘Intervention’ and its transformation and entrenchment by successive (Labor and Liberal) governments, Pether suggests that what can be seen is not merely a perversion of ‘protection’, or an opportunistic appeal to the ‘rights’ of the child, but something more complex, that can be connected to her book proposal. She suggests that what can be seen in the ‘Intervention’ is ‘an emerging biopolitical technology of right discourse in the hands of a distinctively post-9/11 governments whose strategically narrowed and foreshortened reconstruction of a national historical imaginary registers the seductions of rendering invisible, say, a national history of racialized colonial violence that undermines the legitimacy of the nation itself’ (Pether, 2010: 33).

Linda Steele’s article, ‘Troubling Law’s Indefinite Detention: Disability, the Carceral Body and Institutional Injustice’, is similarly responsive to this particular settler colonial context. Through her case study of the life experience of one Indigenous woman, Steele traces the connections between contemporary practices of intervention and detention, as they apply to those designated as disabled, and the settler colonial conditions of Australian life as experienced by Aboriginal women. And in this context, it is important to acknowledge the scale and seriousness of the ‘violence, criminalization and institutional injustice facing Indigenous Australian Women’ (Steele, this volume). And, as highlighted by Ransley and Marchetti’s account of the death of Ms Brown while ‘in care’, this violence has an institutional and systemic dimension. The recent deaths in custody of Tanya Day and Ms Dhu, show similarly that interactions with law enforcement, over trivial infractions (Whitaker, 2019), or non-payment of fines (Fogliani, 2016), can have fatal consequences. Steele’s article challenges, through her case study, our perceptions and definitions of what it means to be in detention, and, similarly, our understanding of what it might mean to be in detention without end. Steele’s account of the concatenating effects of race, disability and gender draws attention to a very different spatial and temporal regime to that of conventional confinement, and, she argues, simultaneously calls into question the ‘therapeutic interventionist impulse that sustains disabled people’s exposure to detention and other coercive interventions’.

In the final article in this collection, Tamara Tullich brings us back to a more direct engagement with the framework proposed by Pether in the work that culminated in her book proposal. In building on this framework, Tullich reemphasizes how Pether’s perspective ‘unsettles’ the conventional contours of scholarship addressing preventative detention regimes, both in Australia and elsewhere. Tullich begins with the proliferation of preventative detention/control orders addressing those suspected of terrorism offences, noting that preventive justice scholarship had already begun to connect this apparently novel, exceptional development with the enlarged scope of high-risk offender and indefinite sentencing regimes, and the rise of the ‘preventative state’ (Tullich, this volume, quoting Steiker). Tullich’s intervention is to alert us to the ways in which preventative justice scholarship, in seeking to develop normative principles and frameworks to explain and justify the boundaries of acceptable state action, runs risks. Tullich’s point, building on Pether, is that conventional preventative justice scholarship with its focus on contemporary regimes can reinforce narratives of exceptionalism, missing the antecedent ‘nationally constitutive’ (Pether, 2012: 2555) role of detention regimes at the level of population. And, further, that in the attempt to draw connections between regimes across jurisdictions and differing sites, and to build a unified analysis of risk-oriented detention, preventative justice scholars may be placing too great an emphasis on coherence, on law and on conventional legal technique. Tullich notes, reflexively, that Pether’s longer view highlights that preventative justice scholarship itself risks becoming complicit in justifying ‘law’s…creation of jurisdictions of exceptionalism’ (Pether cited in Tullich, this volume) even as it offers a corrective to the narratives of exceptionalism that emerged in the post 9/11 context.

curators of this project and in assembling this collection, Nan Seuffert, Joseph Pugliese and I looked to bring together and connect, for Penny saw connections everywhere, varied and new accounts of restrictions on mobility, at the border, through health and welfare surveillance networks, via preventative detention, as well as those attached to large scale population displacement. These accounts, making indefinite detention ‘visible’ as it ‘spreads and transmutes’ across different jurisdictions and in different modes are each connected to Penny’s original project by their subject matter (broadly conceived). But they are connected also by a shared commitment to the social justice imperatives underpinning all of Penny’s work, and that she demanded of us. We extend thanks to all who contributed to this project in different ways: to all of the speakers and participants at the original Legal Intersections Research Centre/UNSW/Macquarie Workshop, to Tamara Tullich for her work in editing and guiding papers to submission, and to Carl Stychin and the Editorial Board of Social and Legal Studies for offering this opportunity to publish this collection of papers as a Special Issue.