From state-centric to transversal borders: Resisting the ‘structurally embedded border’ in Australia

Defining the structurally embedded border

My previous research identified two distinct dimensions of the ‘structurally embedded border’: the assembling of public and private agencies into ‘migration policing networks’ aimed at the identification of deportable non-citizens; and the systematic withdrawal of services to various categories of non-citizens, aimed at conserving resources for citizens and generating ‘voluntary’ departures (Weber, 2013). These internal bordering practices represent, respectively, technologies of surveillance and attrition. Migration policing networks have a direct and literal bordering effect, facilitating the physical expulsion of those without legal entitlement to remain in Australia through formalized information exchange or other cooperation between agencies. These systems are examples of ‘government-at-a-distance’, whereby the achievement of a government objective (the expulsion of unwanted non-citizens) relies on translations of power across chains of public and private actors (Garland, 1997). The second instantiation of the structurally embedded border occurs when service providers are required to deny access to essential services based on immigration status. This can occur without their active recruitment into migration policing networks and without disclosure of information to federal authorities. Service denial operationalizes a mentality of ‘welfare nationalism’ (Barker, 2015) in which governments seek to reserve dwindling welfare resources for their citizens, for both political and economic reasons. This reflects a ‘defacto conversion of power’ from the regulatory system governing entry, into the sphere of post-entry rights (Bosniak, 2006: 70). Denials of service produce powerful, but non-literal borders (i.e. not designed to effect immediate physical exclusion from sovereign territory) by creating categories of differential social, political and economic inclusion. At the same time, these systematic deprivations—described by Johansen (2013) as a form of ‘minimalist biopolitics’—may contribute to physical exclusion through ‘voluntary departures’ that are cloaked in a mantle of individual choice (Weber and Pickering, 2014).

These two bordering processes constitute complementary aspects of the structurally embedded border. At times, however, these systems can overlap, for example when online checks of eligibility for services leave traces that immigration officials can use to detect deportable individuals. Non-citizens living with limited entitlements or precarious legal status therefore encounter the structurally embedded border at multiple levels, with diverse and compounding exclusionary effects.

Resisting the structurally embedded border

Situating the analysis of border resistance within theorization of the border itself, rather than within socio-political literatures of resistance, uses the border as an ‘epistemic viewpoint’ (Mezzadra and Neilson, 2013) and enables spaces for resistance that are inherent within the nature of borders to be brought into view. In their exposition of ‘border as method’, Mezzadra and Neilson consider resistance and struggle to be one of the defining features of borders, arising directly from their relational nature. Moreover, where borders are constituted through chains of different actors, as with the migration policing networks described in the previous section, resistance may also arise from within. As Garland (1997: 182) has observed, wherever third parties are recruited to perform government functions, the process of translating power means that ‘outcomes will be shaped by the resistance or private objectives of those acting “down the line”’. This leaves space for individuals and agencies enacting border control policies to substitute their own agendas. In my previous research, individual agencies recruited into migration policing networks showed little direct buy-in to border control objectives (Weber, 2013). Instead, their cooperation with immigration authorities was conditional, and occurred only where their own organizational goals (e.g. recovering taxes or reducing community risks) overlapped with the federal border control agenda.

That research focused primarily on enforcement-orientated and regulatory agencies that were actively recruited into migration policing networks. The role of service-providing agencies in the structurally embedded border, and the spaces that arise for resistance in that context, are likely to differ in several important ways. First, these agencies are more likely to enact aspects of the structurally embedded border that rely on denial of service, since they may be bound to varying degrees by federal policies on funding and access. Second, these agencies, and the individuals within them, often operate with strong professional norms and standards that may cause them to question the exclusionary objectives and divisive effects of border control policies. It is with these possibilities in mind that I embarked on further research intended to excavate these deeper layers of the structurally embedded border.

Excavating the structurally embedded border

One aspect of my current research on ‘globalisation and the policing of internal borders’ ¹ is a mixed methods case study that explores the ways in which selected service providers have been incorporated into the structurally embedded border. That case study began with 28 key informant interviews conducted between 2015 and 2017 with health care providers (eight), education providers (seven), not-for-profit providers of legal and community support services (eight ) and related government agencies at the state and federal level (five). Sampling for the study was purposive, aimed at gaining insights from health and education professionals likely to have dealt with non-citizen cohorts, and also from legal representatives, community caseworkers and policymakers who could provide an overview of policy intentions or impacts. Although the possibility of diversity of viewpoints and practices within agencies must be acknowledged, the use of key informants provided some wider insights, as well as reportage of the participant’ own professional experiences, thereby multiplying the information value of each interview.

Health and education were selected as objects for study as they are essential services that, while delivered at state level, are also dependent on federal funding and therefore directly affected by border control policies. This state–federal interplay and the involvement of not-for-profits opens up space for resistance in ways that may not be available in relation to essential resources that are either more directly controlled by federal authorities (such as social security) or less controlled by them (such as employment). Moreover, both schools and health services have been identified as sites of struggle over border control in other countries, as some of the examples discussed in this article attest. Only isolated instances of the entanglement of health and education services with border control have been publicly reported in Australia. However, the rationale behind the current research was that further ‘excavation’ could reveal less well publicized acts of everyday resistance.

The interviews focused on access to services for various categories of non-citizens, and contacts between immigration authorities and service providing organizations. With one exception (a secondary school principal in the neighbouring state of New South Wales (NSW) who was a high-profile advocate for her asylum seeker pupils), the fieldwork was conducted in Victoria, an historically liberal state that is known to have well-developed policies in the areas of multiculturalism, settlement and asylum seeker support. Although some participants offered contextual observations about practices in other states, this research design did not allow for systematic inter-state comparisons or generalization to other jurisdictions in terms of specific practices. However, the choice of Victoria as the location for the interviews maximized the potential for identifying acts of resistance at institutional levels. The interview from NSW has been included in this discussion because it provides important insights into individual border activism that are arguably less dependent on state context.

The interview data confirmed that structurally embedded borders are indeed sites of struggle, involving not just the individuals targeted by them, but also service providers who resist their effects. Most of the information obtained concerned asylum seekers, reflecting their highly marginalized, precarious and politicized status within Australia. For clarity, I therefore focus on that group of non-citizens in this article. Two distinct resistance themes emerged from the interview data, namely efforts to ‘fill gaps’ in federally funded services, and avoidance of incorporation into information exchange networks involving immigration authorities. These two modes of resistance align neatly with the two modalities of the structurally embedded border outlined earlier—denial of service and recruitment into migration policing networks—and represent efforts to disrupt the border control technologies, respectively, of attrition and surveillance.

‘Filling gaps’ in access to services

Whereas permanent migrants, including refugees recognized overseas, receive language and settlement support on arrival in Australia, asylum seekers awaiting determination of their protection claims do not. All service providers interviewed in this study identified asylum seekers as the most vulnerable of the groups they engaged with, particularly those without any government support at all. Asylum seekers who have arrived without visas by boat (a particularly vilified group) are subject to mandatory detention, but some may be released into the community on short-term ‘bridging visas’ which are subject to strict and variable restrictions on their access to services. If they are judged to be eligible, they are supported by the federally funded Status Resolution Support Service (SRSS) at less than 90% of the usual social security allowance. Since they are presumed almost from the outset to be on a ‘negative pathway’ towards removal, they are not allowed to engage in vocational training, particularly if they do not have work rights or are held in community detention. ² School-aged asylum seekers do qualify for specialist language support and can access primary and secondary schooling, but generally do not receive federal funding beyond the age of 18. In the case of non-citizens, checking for Medicare cards at points of delivery for federally funded health services that are provided free of charge or at minimal cost to eligible patients has become a proxy for checking immigration status. Access to Medicare cover is generally linked to work rights, which are granted to asylum seekers in a haphazard way through an extremely complex and inscrutable system. Moreover, administrative delays in renewing short-term bridging visas can leave some asylum seekers without documentary proof of eligibility. Adding further to their precarious situation, asylum seekers have been required since 2014 to sign a ‘code of behaviour’ contract as a pre-condition to receiving bridging visas. Breaches of the code can result in loss of services or visa cancellation and (re)detention.

Restrictive approaches to asylum seekers that combine minimal support with intrusive surveillance, can be found elsewhere. Examples include the ‘policies of immiseration’ and broader ‘hostile environment’ approach in the United Kingdom (Hill, 2017) and the framework of ‘hostile hospitality’ in Sweden (Johansen, 2013). In all cases, however, spaces have been found for resistance. Johansen (2013: 263) notes that the national government was unable to exercise total control over access to services in Sweden, since free services began to emerge for asylum seekers. The governmental objective of shaping choices towards ‘voluntary’ departure then required further action to ‘eliminate loopholes’. Equally, when central government in the Netherlands embarked on a ‘discouragement programme’ by denying undocumented migrants access to essential services, Van Der Leun (2003) observed that local service providers ‘looked for loopholes’ to enable service provision. In the Australian federal system, mainstream services such as education, health and housing are delivered at state level, often under complex federal-state funding arrangements. One participant spoke about ‘developing workarounds’ when immigration policies threatened service provision. But service providers interviewed in this study more often spoke in terms of ‘filling gaps’ created by inadequate federal funding or deliberate restrictions. As explained by one Victorian state government employee ‘our whole aim and our goal is to try to link up the myriad of services that are out there, and plug those gaps’ (Gov3).

Where exclusion from essential services is intended as a border control measure, the mere provision of services to those who would otherwise be excluded can be seen as an act of resistance. In fact, one non-governmental organization (NGO) that provides support exclusively for asylum seekers has coined the term ‘people denied essential services’ to describe the neediest sub-group among those using their services (NGO10). In the USA, Marrow and Joseph (2015) found that when national legislation had the effect of ‘freezing out’ unauthorized migrants from health care, some state governments stepped in to provide remedies. A state-level response to gaps in services is also apparent in Victoria, and was considered by this state policymaker to be part of a coordinated strategy:

I think the Victorian government is very proud of its history of multiculturalism. I think it’s being challenged more strongly than ever at the moment obviously, and this particular government is really stepping up to look at ways to really boost support for, not just permanent migrants and established migrant communities, but definitely for the vulnerable new arrivals, asylum seekers, the bridging visa cohort.

The Department of Health and Human Services in Victoria had reportedly funded a prominent NGO to assess refugee and asylum seeker health and identify ‘service gaps’. As a result, a network of service providers had been formed, existing initially on ‘bits and pieces of funding through philanthropies and so on’ but later underpinned by relatively stable state government funding (Health8). Interviewees from the Victorian community health sector explained that the majority of their services were state-funded, so that possession of a Medicare card was considered ‘irrelevant’ (Health3). In addition, refugees, asylum seekers and some other migrant categories were considered ‘priority groups’ for their services due to the vulnerability created by their immigration status.

Accessing services funded by Medicare could be a different matter, and it was said to be ‘quite common’ for general practitioners (GPs) to take the view that ‘we’re not going to see you if you can’t pay’ (Health4, also Health5). Another informant explained that, historically, GP visits had been funded at state level, but a shift towards federal funding had brought severe consequences for asylum seekers: ‘[w]e immediately see the issue because in all of these clinics going up as Medicare funded clinics, these asylum seekers without Medicare access have no access’ (Health7). In contrast, previous difficulties in accessing acute hospital care were believed to have been rectified by state government action:

Most of the states have now passed legislation that if someone needs emergency care; you just need to see them. But back when I was working at [NGO] we had people refused having access to emergency care and being given huge bills.

The Victorian public health system now has a formal policy for provision of health services for asylum seekers. ³ This improvement in access was confirmed by a community caseworker who said: ‘[a]nyone who has got an emergency, we can call an ambulance or take them to a hospital and they will be seen no matter what their circumstances are’ (NGO7). The commitment to ‘filling the gap’ was thought to be not so evident in other states. Moreover, the experience for asylum seekers in Victoria was said to be ‘different to other places’ due to the range of additional services provided by not-for-profit groups (NGO4).

Differences between states were reported in education contexts as well. A Sydney-based school principal claimed that, while the NSW education authorities had ‘bent over backwards’ to accommodate the needs of asylum seekers when federal funding ended at age 18, another state (not Victoria) was ‘making it difficult’ for those young people to continue their studies. She described yet another state as ‘backward’ because she believed their policy was to refuse enrolment to pupils holding any kind of temporary visa (Education2). In contrast, ‘[t]he principle that all children should go to school’ was said to be ‘one that’s adhered to very strongly by the [Education] Department’ (Education2). Similarly, the ‘Department view’ in Victoria was reported to be that ‘if they live in Victoria and they want to come to a secondary school in Victoria, then the secondary school needs to take them’ (Education5).

Specific schools and hospitals may take their commitment to asylum seekers even further. One church-affiliated hospital in Melbourne had signed a formal Memorandum of Understanding (MOU) with a not-for-profit agency to provide specialist medical services such as pathology, diagnostic imaging and radiology to asylum seekers (Health2). Two school principals, one in Victoria and one in NSW, had developed special programmes for asylum seeking children in their schools using their general operating budget. On the other hand, variability might exist between individual schools and hospitals as to how they interpret state-level policies in respect of students or patients not covered by federal funding. This was said to be a common reason for refusing to enrol older asylum seeking students: ‘[t]hey went to enrol—“No, you’re 17, we don’t have to enrol you”, and that’s quite true. Over the compulsory age, why would we want to?’ (Education2).

Funding was subsequently provided for asylum seekers over the age of 18, at least in the state of Victoria. However, one NGO that supported asylum seekers in schools said they needed constantly to remind teachers that this was the case (Education7). Individual principals might also refuse enrolment on other grounds, which reportedly included ‘not wanting to be known as the school that has all the refugees and asylum seekers’ (Education7). Although these exclusionary practices were said to occur, they contravened state policy: ‘[t]here are some principals who think they have the authority to say, no. They are wrong, in most circumstances’ (Education6). As with the school system, staff in some Victorian hospitals were also said to be unaware of state-level arrangements expressly designed to ‘fill gaps’:

[T]he state government directive is they’re not disadvantaged because of Medicare status, but the majority of people in hospitals don’t know that. So that has been a regular experience that often some of the departments decline people a service because they don’t have access to Medicare.

It became clear during interviews that, in addition to state-level directives, efforts to ‘fill gaps’ may also be driven by personal and professional values. In her study in the Netherlands, Van Der Leun (2003) found this to be particularly true among groups that exercised substantial professional autonomy, such as teachers and health care workers. It was very clear from my interviews that, while they may at times be unavoidably constrained by restrictive federal, state and institutional policies, or unaware of policies designed to ‘fill gaps’, denying services to those in need did not sit well with the universalist values widely held by education and health professionals. As one participant from a peak health body noted: ‘[m]ost doctors and nurses, they would exercise a professional code of conduct notwithstanding it’s also a duty of care requirement under the law to provide assistance’ (Health1). A hospital employee also confirmed that ‘our practice is to treat all children equally’ (Health6). A similar sentiment was expressed by a school principal whose school made no distinction between asylum seekers and recognized refugees, and worked hard to convey to asylum seekers that ‘they’re coming to a community that wants them here’ (Education5). Likewise, an administrator from a church-supported hospital claimed ‘when a person comes through our emergency department … we’ll always care for them’ (Health2); while an employee of a faith-based housing provider said there were ‘a lot of theological reasons for why we should be supporting asylum seekers or addressing injustices in that area’ (NGO7). On occasions where services had to be denied due to an insurmountable lack of resources, most often in resource-poor NGOs, this was said to ‘go against everybody’s instincts’ (NGO10).

As well as providing services on a day-to-day basis for individuals excluded by federal immigration policies (examples of ‘border refusal’ in King’s terminology), service providers have mounted organized campaigns for policy change at state and federal level (which King would describe as ‘border resistance’). All major professional associations for health care workers have committees advocating for better access to services for asylum seekers, particularly those being held in detention. The breakthroughs in school funding for asylum seekers aged over 18 and access to emergency health care that were discussed above followed protracted lobbying from the education, social welfare, legal and health care sectors, and work rights for bridging visa holders were also said to have been an outcome of intense lobbying by these groups (NGO2).

The interviews also produced examples of service providers advocating on a protracted basis for individual patients or students. A secondary school principal in a school with high numbers of refugee and asylum seeking students spoke of ‘spending my life doing Human Rights Commission stuff’ because of her repeated advocacy for students (Education2). She told the story of two unaccompanied Nigerian brothers who ‘were just sort of one day grabbed’ and sent to a nearby detention centre. She fought to have them returned to the school, and personally petitioned both the Australian Human Rights Commission and senior Immigration officials, which resulted in a stay of deportation and ultimately the granting of permanent residence:

The whole school was involved in it and it was a very difficult time … Had I not intervened, those boys would have been sent back to Nigeria. Their last remaining relative was hacked to death in his home in Lagos while this was going on. We didn’t know about that ’til afterwards … They’ve both been to university. They both, I know, are looking to citizenship. They both will settle into Australia.

Resisting incorporation into migration policing networks

The structurally embedded border affects service providers, not just in terms of the services they are funded, or not funded, to provide, but also in terms of the information they are required or encouraged to supply to immigration authorities. According to Van Der Leun (2003), proposed legislation in the Netherlands requiring service providers to report to authorities any undocumented immigrants who sought their services had to be abandoned due to spirited resistance. Similar attempts in Italy during the Berlusconi era to amend legislation that had hitherto prohibited medical staff from making such reports were also strongly opposed by health professionals (Reuters, 2009). However, within large organizations data exchange may occur at managerial levels without the knowledge of individual practitioners. For example, it was recently revealed that the National Health Service in Britain had been passing information to the Home Office about patients slated for deportation, apparently in response to financial incentives (Potter, 2017).

Although there is no public discussion about these practices in Australia, there are reasons to believe that similar data exchanges may be occurring, both inadvertently and by design. A well-documented example of the former occurred when well-meaning enquiries made initially to police by social workers at Lismore Base Hospital about the identity of a seriously injured patient led to the wrongful deportation of a naturalized Australian citizen (Comrie, 2005). In addition, immigration compliance officials interviewed during my previous research on migration policing networks named a major hospital in Sydney that had entered into a Memorandum of Understanding (MOU) with them, although the nature of that agreement was not revealed (Weber, 2013). Further research is being undertaken to identify the extent to which hospitals, or even schools, have become incorporated—knowingly or inadvertently—into networks of information exchange. ⁴ In the meantime, the interviews reported here provide some insight into the type of inquiries that are made by immigration authorities in schools and hospitals, and the efforts of some service providers to avoid entanglement in border surveillance networks.

With the exception of one school-led campaign to resist the deportation of a mature-age asylum seeker pupil (AAP, 2015), immigration enforcement in schools has not been the subject of public debate in Australia. Even so, one education union official said that immigration authorities did occasionally appear at schools to make inquiries about specific students (Education1). Exchange of information was likely to happen at departmental, rather than school level, probably via MOUs (Education2). Within the health sector, one research participant speculated that enquiries might be made with immigration authorities if the identity of an unconscious patient was at issue (Health1). Indeed, it was just this scenario that led ultimately to the wrongful deportation mentioned above. Seemingly mindful of this possibility, one hospital manager said she would ask for legal advice before contacting immigration authorities in relation to any unidentified patient. She claimed her hospital would ‘hate … having to enact immigration law on behalf of the government’, and would rather ‘be a place of health and healing and sanctuary while a person is here’ (Health2). A representative from a refugee health organization expressed concern that rights to privacy that were well established in the health sector in relation to ‘everyday Australians’ were being threatened by exchanges of data with the SRSS system that supports many asylum seekers: ‘[y]ou’re asking questions for a certain reason because you want to get diagnosis, but then if that information is then used in another way, that’s problematic’ (Health8).

One caseworker from a faith-based service provider described the care he took to avoid embroiling his asylum seeker clients in the surveillance networks he knew to be operating in the tertiary education sector. On the one hand, he explained, it was difficult to ascertain whether bridging visas provided working rights, which are required for vocational study. On the other hand, he was aware that the process of making enquiries, both with education providers and immigration authorities, was fraught with danger:

So we were told that we needed to get what’s called a Unique Student Identifier (USI). So we put in applications for these people, only to be told that once they were logged on the system, that their information could be passed on to any government agency, including the Department of Immigration and Border Protection (DIBP)… They could have got a USI without having study rights and then, technically, be reported to the department as breaching the conditions of their visa.

Before checking the individual’s entitlements using an official database operated by DIBP, the informant made enquiries with the department, only to be told that performing the online check could lead to follow-up requests for more information about the individual.

Another example was provided by a head teacher who had learned through experience that taking routine disciplinary action against asylum seeker students could lead to their detention. Young asylum seekers in ‘community detention’ are assigned SRSS caseworkers who are required to report to immigration authorities any incidents such as sickness, absenteeism from school, criminal victimization or offending. In this example, the caseworker and the school principal collaborated with the explicit intention of avoiding this eventuality:

The NGO responsible for that child rang me and said, ‘What do we do? We’re going to have to report this to the Department of Immigration because he’s out of school and he’s not sick and any absence from school has to be reported to Immigration, and here we have a suspension for violence and this could threaten his status of living in the community.’ Now, I was immediately concerned about that. I was about to suspend another boy for stupid behaviour, teenage boy behaviour again. In that situation, I didn’t suspend him. I got his guardian in, and we had a long heart-to-heart talk and that boy realized the problem. The kid who was suspended was already suspended because we hadn’t thought that the ‘thought police’ would be wanting to know every move of those kids.

However, not all schools were as careful to avoid damaging outcomes for similarly placed students, as observed by this manager within an agency contracted to provide SRSS casework support:

Some [schools] can be quite punitive in their approaches to asylum seekers. Just to give you an example, there’s one child I’m thinking of. Every single time he does anything, he’s immediately suspended and they over risk manage. Everything is escalated and there’s other children who would do the exact same thing and they wouldn’t bat an eyelid.

Apart from reporting mediated by SRSS caseworkers, communication with immigration authorities was also said to occur at the level of state education departments:

I’ve had plenty of examples of [the Immigration Department’s] malice towards young people. I don’t trust them one bit. ‘You can trust them,’ says the [Education] Department, ‘we deal with these people.’ No, I’m not giving out the information … Again, it’s micromanagement isn’t it? It’s the idea that we know exactly what you’re doing all the time.

This principal was particularly critical of other schools that provided information without considering how it would be used, or allowed students to be taken into custody by immigration officials without question. She mentioned one incident where the principal ‘stupidly gave them the children’ when immigration officials had arrived with a list of names (Education2). Instead, she said she would have removed the young people to a safe place in the school while she ‘did a bit of trading’, asking the officials to leave the school grounds if they did not have proof of legal authority, which was required, for example, when police took children into custody under child protection orders. Another participant who supported asylum seekers and refugee students in schools was more sympathetic to the plight of the ‘poor innocent person who answers the phone in the office and just quickly checks on someone and [has] not been aware at all of the implications’ (Education7). She said a lot of her work involved alerting schools to the implications of border control for some of their students.

While independent service providers may avoid becoming embroiled in the structurally embedded border if they have the requisite knowledge, caseworkers contracted by DIBP to support asylum seekers under the SRSS scheme are paid to be part of it. Information released under the Freedom of Information Act by the Australian Border Force reveals that SRSS caseworkers are overwhelmingly the most common source of information about alleged breaches of the code of behaviour, with police referrals and reports from the public also contributing (ABF, 2016). A research participant from an agency contracted to provide SRSS support said that their employees were encouraged to adopt a position that is ‘sort of supporting the client but also maintaining that relationship [with DIBP]’, which he considered to be ‘beneficial for all parties involved’. However, the dual role of support and surveillance clearly generates extreme tension for SRSS caseworkers, sometimes leading to small acts of resistance as reported above, but at other times leading participants from independent NGOs to question whether caseworkers always worked ‘in the client’s best interest’ (NGO4).

To complicate matters further, it was reported that distrust engendered over the mandatory reporting requirements on SRSS service providers can spill over into confusion and suspicion of other, more independent agencies: ‘I guess … they would believe that you will report to the government, [but] there are different levels of government in Australia’ (Health3). For this reason, one health provider had refused a government request to encourage their clients to sign the ‘code of behaviour’ (Health7). On the other hand, several participants mentioned with regret the fact that some medical colleagues were prepared to align themselves with the deportation machinery by certifying fitness to travel and supervising the use of sedatives to induce compliance, practices that were said to have occurred primarily in the past (Health5).

The ‘Feds’ fight back

So far we have established, by linking reported strategies of resistance with prior theorization of the border, that the structurally embedded border is imperfectly realized and in fact is partially constitutive of the acts of resistance that undermine it. Put another way, the border is found to be not only performative but also reflexive, so that forms of resistance are shaped in response to its main modalities of attrition and surveillance. Service providers have confronted federal policies directly and lobbied individually and collectively for increased access to services. Alongside some fragile successes—such as the securing of school funding for 18-year-old asylum seekers, and access to hospital care for asylum seekers without Medicare entitlements—or, in all probability, because of them, these resistance efforts have also been met with intimidating countermeasures from federal government. In order to move the analysis beyond resistance to transformation it is necessary to weigh the reported acts of resistance against the considerable exclusionary power still wielded by the federal state.

Perceptions about the ubiquity of the structurally embedded border clearly continue to cast a shadow over the lives of many non-citizens. One reported example concerned a secondary school student who had won a university scholarship created specifically for asylum seekers, but had asked that his success not be publicized in the school newsletter for fear of repercussions: ‘[h]e was fearful that they would say “Hello, this guy’s got into university, we’ll stuff him up, we’ll remove him. We’ll put him back into closed detention”’ (Education2). Indeed, students and other asylum seekers in contact with community agencies, were said to ‘disappear’ without warning from time to time, either into detention or after being relocated inter-state (Education2, Health3). One participant believed this to be a deliberate tactic to ‘destabilize’ young asylum seekers still further and disrupt their networks of support (Education2).

Added to this general climate of insecurity, the wide-ranging code of behaviour imposed on asylum seekers living in the community was said to be ‘hugely heavy handed’ (NGO2) and had created ‘terrible fear’ (NGO1). Given that bridging visas can now be cancelled even without a conviction, ⁵ the threshold for enforcement action leading to detention and removal is clearly set far lower than for other non-citizens, even though it seems only to be fully enforced at present in cases of criminal offending (see ABF, 2016). Not satisfied with this level of repression, the federal government announced an additional ‘welfare crackdown’ towards the end of 2017, cutting the already inadequate income support of around 100 asylum seekers who had been resisting return to offshore detention, having been transferred to Australia for medical treatment (Baines, 2017; Higgins, 2017). It seems that the crackdown also removed the hard-won access to secondary education for asylum seekers aged 18 or over (Baker and McKenzie, 2017).

Another example of federal fight-back is the enactment in 2015 of sanctions in the Border Force Act intended to deter health and welfare professionals from making public comments about border control policies. Although targeted primarily at those employed to deliver services in offshore detention centres, the drafting does not make clear that its application would be restricted to this circumstance. The so-called ‘gagging measures’ therefore generated considerable angst among health and education professionals providing services to asylum seekers within the Australian community, who feared that their advocacy might attract sanctions. One participant noted the ‘chilling effect’ of the legislation, while speculating that the legal effect was likely to be less severe than anticipated (NGO1). The legislation also sparked angry protest, including an Open Letter to the Prime Minister from a group of defiant health and allied professionals, driven by their professional commitment to patient privacy, human rights and duty of care (Farrell, 2015). One of them wrote in a separate article that the threats to imprison and punish clinicians who spoke out about border control policies could create ‘a secret state where [the department of] immigration controls health practice in the interests of so-called border protection and doctors involved are essentially colluding with human rights abuses’ (Newman, 2015). Both nurses (Health5) and teachers (Education1) had taken a stand against the measures, supported by their unions. Health professionals were subsequently granted an exemption from the ‘gagging laws’ as a direct result of their lobbying (Hall, 2016).

Even before the gagging laws were introduced, a legal representative interviewed for this study explained why NGOs were cautious about being too critical of the bridging visa regime. She spoke of an ‘unspoken pact’ among legal and welfare professionals in Victoria who had lobbied hard for this alternative to mandatory detention, to do ‘everything possible to make bridging visas work’ for fear that ‘if we … kick up too much of a storm then what will happen is the people are not being let out of detention’ (NGO4). This was backed up by a health professional who noted that ‘we were talking about [certain problems] fairly discreetly because we didn’t want people to be re-detained’ (Health8). ⁶

Other impediments to successful lobbying were said to be the difficulty of attracting media attention for reform campaigns, on the one hand, and reluctance to generate media coverage in individual cases, on the other. One interviewee speculated that media interest was difficult to attract because even more egregious practices were occurring in offshore detention (NGO2). On the other hand, seeking media attention to improve the plight of particular individuals had been seen to backfire, and was therefore ruled out by some as a resistance strategy. One educator said she had turned down media requests to speak with asylum seeking students in order to ‘safeguard their position’ (Education5). And a legal adviser had ‘learned from bitter experience’ that individuals who attracted media attention would be punished by ‘an incredibly hostile [federal] government’ (NGO1). The activist school principal interviewed in NSW also took up this theme:

It’s sending a message to everybody else—You talk to the media, we’ll get you. We can take you at any time … It doesn’t matter that you’re about to do the [High School Certificate]. We don’t give a fuck about that. We’re going to put you into detention and that will show everyone just how powerful we are.

Fostering inclusivity through ‘transversal’ borders

Given these enormous power imbalances, and the explicit efforts by federal government to shut down avenues of resistance, it is tempting to be pessimistic about the prospects for transforming borders from below. We have noted some small but significant victories, such as the winning of federal funding allowing asylum seekers to attend school beyond the age 18. But we have also seen how easily these victories for greater inclusivity can be swept away. Overall, the effect is similar to the patterns observed by Van Der Leun (2003: 152) in the Netherlands of a mixed response by service providers to repressive national legislation, and a tendency to mitigate, rather than overturn, its effects at lower levels:

There are tendencies of severe exclusion as well as tendencies to soften the impacts of the law. An important general implication is that the process of weighing up the pros and cons has moved to lower levels. At these lower levels, the official policy objective of systematically excluding illegal immigrants is mitigated by professional, humanitarian and ethical standards as well as by other policies.

Despite the benefits derived from the alternative provision of services at sub-national level, Marrow and Joseph (2015) concluded from their study of access to health care by unauthorized migrants in the USA that this outcome does not substitute for fundamental change at federal level. When judged from a state-centric perspective, the net gains from resistance to the structurally embedded border in Australia also appear to be marginal. However, the question of whether these multiple acts of resistance are transforming the border from below receives a different answer depending on whether one adopts a state-centric or ‘transversal’ view of the border.

Employing the concept of ‘transversal borders’ enables us to assess the value of border resistance from a different point of reference. Soĝuk and Whitehall (1999) have argued that non-geographical transversal borders exist prior to state-defined boundaries. They may be brought into view by the actions of individuals or collectivities that open up new spaces of governance and enable ‘political inclusions, exclusions and cultural separations across peoples and places’ (1999: 676). The authors’ intention is to disrupt the state-centric narrative that predominates within international relations, substituting a person-centric approach that seems to align (although they do not use the term) with critical perspectives on human security (see Tazreiter et al., 2016). Transversality denotes an historical site of struggle, albeit an inherently unequal one, that disrupts the territorial hegemony of the state while not necessarily tackling state-centric borders head on. According to Soĝuk and Whitehall (1999), making a life not fully controlled by the state denotes the ‘transversal condition’. Returning to King’s (2016) terminology, attempts to work around, or ‘fill gaps’ in federal service provision, create alternative pathways to sustain the lives of excluded migrants through acts of ‘border refusal’ that can be conceptualized as instantiations of ‘transversal borders’.

Transversal borders may vary considerably in scale and their capacity to deploy resources, and are unlikely, at this point in time, to match the in/exclusionary power of the state. Accordingly, Soĝuk and Whitehall (1999: 688) acknowledge that maps and states ‘still condition lives across spaces’, but assert that people’s stories cut across state boundaries in meaningful ways. An example provided by the authors is the long-term occupation by a single stateless person of a transit area in Charles de Gaulle international airport in Paris. While much of their thesis is concerned with challenging state hegemony over territory through acts of unauthorized border crossing, in situ claims of identity and belonging by ‘limit persons’ can also ‘transform states and their borders, and force on them new realities […] even if only in fugitive events and moments’ (Soĝuk and Whitehall, 1999: 694). We have glimpsed some of these ‘fugitive events and moments’ in the acts of resistance discussed in this article.

While Soĝuk and Whitehall see transversal borders as an ongoing historical reality, globalization theorist Saskia Sassen (2015) locates what she calls ‘new bordering capabilities’ within the changing conditions of globalization. These capabilities create a ‘multiplication of bordered spaces’ (2015: 180), some of which may be internal to the state. Although, in her account, these bordering capabilities are generally exercised in a ‘top–down’ fashion by the powerful (e.g. global corporations), her reasoning leads her to a position that has much in common with Soĝuk and Whitehall: ‘[a] core argument of this Essay is that the capability to make borderings has itself switched organizing logics: from institutionalizing the perimeter of a territory to multiplying transversal borderings cutting across that perimeter’ (Sassen, 2008: 570, emphasis in original). With respect to the transformative potential of these developments, Sassen (2015: 188) concludes that: ‘[t]his is an as-yet minor process in the larger scale of our geopolity. But it may well be the beginning of a massive disruption of its formal architecture.’ Other border scholars espousing a similar perspective include Nancy Wonders (2015) who has argued that border transformation arises from migrants ‘taking rights’ just by carrying on, against the odds, with their everyday lives; and Natasha King (2016: 151), who describes this process as a ‘multitude of micro-refusals’ that hold the promise of ‘making other worlds in the gaps’ (2016: 153).