‘These people are conning us’: Australia’s Medevac laws and the biopolitical production of the ‘malingering’ refugee

Abstract

This article examines the effect Australia’s ‘Medevac’ legislation had on the way refugees were depicted by the Liberal-National Coalition and Australian Labor Party in their debate about immigration detention and border security. I argue that by enabling medical evacuations for people detained offshore, Medevac shifted debate about refugees and border security into the realm of the biomedical. I maintain this resulted in the biopolitical production of the figure of the malingering refugee, who falsifies illness to cross the border. While both parties produced this pejorative category, what distinguished them was the degree to which they believed malingering applicants could be rendered ‘known’ via the medical border. For the ALP, Medevac could recruit the purported ‘objectivity’ of biomedicine, such that malingering applicants could be identified, and border security thereby supposedly maintained. Conversely, for the LNP, no such guarantee could be established, meaning for them, Medevac rendered the border and therefore the nation vulnerable to malingering applicants. Despite their differences, I argue both parties articulated the figure of the malingering refugee for similar nationalistic purposes. Namely, to justify the violence of the Australian border protection regime, while nevertheless simultaneously depicting themselves and the nation as fundamentally ‘good’: not in spite of, but because of their harsh border policing practices. In concluding, this article considers the applicability of its analysis both to the contemporary Australian context and abroad, such as the United States and UK, where similar border protection policies and discourses have emerged.

Keywords

Australia border criminology immigration detention Medevac medical border nationalism refugees

The harmfulness is a ‘designed-in’ feature.

Dr Peter Young (in Doherty, 2016)

In Manus Prison, the pain is there to send you home.

Boochani (2016)

Part I: Introduction

In February of 2019, the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Aus) – known colloquially as ‘Medevac’ – was passed in the Australian senate, thereby becoming law. By amending a suite of existing legislation,¹ Medevac introduced provisions through which ‘unlawful non-citizens’ held in Australian offshore detention centres could be medically evacuated to the mainland of Australia for emergency treatment. While the impetus behind Medevac was multi-faceted, it arose largely as a response to the documentation of the inadequate and at times fatal healthcare being provided to refugees in offshore detention, as documented by the medical personnel therein (for extensive analysis of these harmful effects, see: Green and Eagar, 2010; Loughnan, 2022; Mares, 2016; Steel and Silove, 2001; Young and Gordon, 2016).

The Australian Federal Government – then held by the Liberal-National Coalition (LNP) – strongly opposed Medevac, but was unable to block its entrance into law when the Australian Labor Party (ALP), then in opposition, and other minor parties combined their votes to secure its passage. Leading up to, during, and following its implementation, the LNP waged a sustained campaign against Medevac. This was led by then Minister for Home Affairs, Peter Dutton, who presided over the border security and immigration portfolios at the time. The LNP government’s argument – which will be discussed in detail – revolved around the assertion that Medevac would drastically weaken Australian border security. This idea was articulated via three main points. First, that Medevac set the bar too low for admission to hospital on the mainland, and would allow too many refugees to have medical evacuations approved. Second, that the very possibility of medical evacuations could act as a ‘signal’ to people smugglers, which could ‘restart’ the people smuggling trade that the LNP claimed to have defeated (Borys, 2019). And third, that it would encourage a ‘flood’ of refugees to attempt to enter Australian borders, in the belief they could disingenuously claim the need for medical treatment as a vehicle to reach the mainland if imprisoned offshore. As Dutton elucidated: Medevac ‘is going to see. . .hundreds of people coming here very quickly. It’ll be quite confronting’ (cited in Hadley, 2019), while David Coleman, then Minister for Immigration reiterated: ‘we expect that in short order substantially everyone will come to Australia. . .because the bill doesn’t even require people to be sick’ (cited in RMIT and ABC, 2019).

In responding to this criticism from the LNP, so too the ALP – which also supports offshore detention – spoke the language of border security. They claimed, for example, that the Australian border would remain strong because according to Medevac’s stipulations, only a limited number of people would be transferred: specifically, only those deemed to have the most serious medical conditions, as verified by two independent medical professionals. They also emphasised that even if a transfer was approved on medical grounds, the Minister for Home Affairs would retain a special veto power on the basis of ‘character’ and national security. As the ALP’s then Shadow Minister for Home Affairs, Christina Kenneally, stated: Medevac ‘ensures that the minister retains the power and discretion to determine who comes into the country’ (cited in Borys, 2019). According to the ALP, with these safeguards in place, the border would remain secure, and the vast majority of people would remain offshore, ostensibly beyond the border. Additionally, the ALP also attempted to reverse the LNP’s criticism that Medevac constituted a weakening of the Australian border. They claimed that on the contrary, it was the LNP that had jeopardised border security through its anti-Medevac discourse. For example, Tanya Plibersek, then Deputy Leader of the ALP, said that by criticising Medevac, then Prime Minister Scott Morrison was ‘acting like the people smugglers’ billboard. . .when he’s saying our borders have become weaker somehow – it’s not true’ (cited in Australian Associated Press, 2019a).

In their debate about Medevac both major Australian political parties reproduced several pervasive ideas about the supposed links between national security, refugees and the border.² Both endorsed the practice of imprisoning people in offshore detention indefinitely, and both reproduced an ontology and epistemology that holds that there are ‘genuine’ and ‘non-genuine’ refugees, about whom the nation ought to be wary if the integrity of the border, and indeed the nation itself, is to be preserved. In this discourse refugees and asylum seekers are typically depicted through a range of overlapping binaries, including the categories of the genuine and the non-genuine; the good and the bad; the lawful and the unlawful; the legitimate and the illegitimate; and the deserving and the underserving (Davies, 2008; Loughnan, 2019). Indeed, the Medevac legislation itself repeatedly refers to those for whom its provisions were designed as ‘unlawful non-citizens’.

While the debate around Medevac both relied on and reproduced many existing narratives about refugees and national security, I argue the advent of Medevac took these existing discourses and categories into new terrain by reiterating and extending them into the realm of the biomedical, which itself has long been implicated in the management of the border (Fassin, 2012; Ticktin, 2011). I maintain that the effect of this transposition was the biopolitical production of a new binary pairing: that of the (genuinely) ill refugee as opposed to that of the malingering. While the production of the figure of the malingering refugee was predicated on existing pejorative narratives about refugees, it nevertheless also partially modified them. This is because although ‘Western nation-states consistently function on the basis of a belief that immigrants lie and cheat’, historically speaking, providing they have been interpreted as sick, they have also been interpreted as being genuine (Ticktin, 2011: 146; see also Fassin, 2012). This observation attests to Fassin’s (2012) analysis of the ‘humanitarian gaze’, under which migrants and refugees have long been ‘required to expose their suffering’, so as to qualify for border crossing or the receipt of care (p. 82). As Ticktin (2011) elaborates, ‘In this logic, their bodies tell the truth’, because ‘biological measures cannot dupe the system’ (p. 146). However, with the advent of Medevac and the production of the figure of the malingering refugee, I argue the presumption of the biological body’s authenticity was destabilised and thrown into question.

As I elucidate, although the LNP and ALP held diametrically opposed positions on Medevac, both were nevertheless complicit in the biopolitical production of the malingering refugee. Put simply, despite their differing positions on Medevac, both the LNP and ALP’s positions were structured by the notion that the figure of the malingering refugee exists, and that it is a threat to border security and the nation. What distinguished their positions was merely the degree and certainty with which they believed the malingering figure could be identified and therefore managed via Medevac, and the biomedical discourses upon which it purported to rely.

Here, the concept of the medical border – which denotes the technologies through which the discourses of biomedicine are co-opted to police the border – is informative (Bashford, 2006; Dehm, 2020; Dehm et al., 2022; Mckiernan-González, 2012; Trubeta et al., 2021). It illuminates, for example, ‘how border regimes use healthcare—or rather, the denial of, and limited access to healthcare—as a tool to control’ (Dehm et al., 2022: 5). As Sara Dehm elaborates:

The concept of the ‘medical border’ helps us to attend to the specific ways that medical personnel, practices, knowledges and logics become enmeshed in the performance, function and ends of state border regimes. It allows for tracing, for example, how border regimes further the medicalisation of individual migrants’ bodies and of specific body politics in general, including through racialised notions of illness, contagion and collective well-being. Here, medicine is central to enacting a politics of inclusion/exclusion as well as to state authorisation of particular forms and subjects of human mobility at border sites (Dehm, 2020).

Examples of the medicalisation of borders include the use of DNA testing to determine whether familial reunification can occur across borders, or where evidence of disease is used to either prevent or allow migration to occur (Ticktin, 2011). As Ticktin (2011) elaborates, such occurrences ‘point to the growing importance of biological evidence in the ability to cross borders, and the reliance on biological readings to determine whether someone is considered “worthy” of crossing the border’ (p. 140; see Aas, 2006).

By drawing on the concept of the medical border, I will show that in both Medevac legislation and the discourse of its opponents and proponents, complex narratives of violence, pain, trauma, medicine, psychiatry, psychology, border security, race, nationalism and law intersected, and indeed, became mutually reinforcing. I maintain that for those who supported Medevac as a means to enhance Australia’s system of offshore detention, such as the ALP, these narratives could be invoked together to quantify and qualify trauma – as well as to deny and disavow it when necessary – such that it could then be ‘authoritatively’ determined who was and was not ‘genuine’ along the axes of the categories of the ill and the malingering. For the ALP, Medevac constituted an effective medicalisation of the Australian border in that it outsourced the administration of the border regime to medical personnel, who were tasked with identifying and differentiating the genuinely ill refugee from the malingering. Paradoxically however, the ALP’s support of Medevac nevertheless remained conditional upon the retention of the ability of the Minister for Home Affairs to veto any proposed transfer on ‘national security’ and/or ‘character grounds’, even when this contradicted the medical advice that had been provided. For the ALP, this combination of outsourcing border maintenance to medical personnel, while retaining veto power, meant that for them, Medevac furnished the Australian border regime with apparent compassion and objectivity, whilst nevertheless maintaining its strength and integrity.³ By contrast however, for the LNP, no such guarantee regarding the genuineness of the other could be established with certainty – even if its veto power remained intact. This meant that for them, Medevac rendered the border vulnerable to the other’s capacity to malinger, and indeed as I will show, in the LNP’s populist depictions, this very capacity itself came to be portrayed as a threat to national border security.

This article will proceed by first examining the role of pain in the effective functioning of the Australian border regime. It will then examine the emergence of Medevac, which ostensibly arose as an attempt to mitigate some of this pain, while simultaneously preserving the fundamental structure of the Australian border regime, including its reliance on the practice of offshore processing and its correlative production of pain. Throughout, I examine the LNP and ALP’s narratives about the medical circumstances of those imprisoned by Australia offshore, including the quantification, qualification and/or disavowal of those circumstances. I consider the political and affective function these narratives fulfilled for both the LNP and ALP, and ultimately argue that through their discourses on Medevac, both attempted to sustain an image of themselves as being strong on border protection, while nevertheless simultaneously depicting themselves, and the nation, as being fundamentally ‘good’: not in spite of, but because of their respectively harsh border policing practices. I will argue that all of these articulations hinged on the creation of the figure of the malingering refugee, who, through its very capacity and supposed willingness to fabricate its medical circumstances, can be ‘justifiably’ understood as a threat to the nation that should therefore remain offshore.

While my analysis here relates specifically to Australia’s Medevac legislation and context, throughout, I gesture towards the relevance of my analysis to other contexts, including the United States and the United Kingdom, where similar biomedical border regimes, which are explicitly modelled on that of Australia, have been implemented and/or proposed, largely on the basis of comparable, and indeed sometimes shared, narratives.

Part II: Pain and the Australian border regime

It has long been observed that the production of pain and harm are central to the effective operation of the Australian offshore processing regime (Amnesty International, 2016; Balint, 2019; Durham et al., 2016; Grewcock, 2009; Loughnan, 2022; Newman et al., 2008; Pickering and Weber, 2014; Steel et al., 2006; Sweet, 2007; Taylor, 2005; Zion et al., 2010). Indeed, as cited in the epigraph above, for Dr Peter Young, the former Director of Mental Health Services at International Health and Medical Services, ‘harmfulness is a “designed-in” feature’ of Australia’s system of offshore processing (Doherty, 2016).

For Claire Loughnan, this ‘feature’ functions paradoxically, in that it is achieved through both the actively harmful practices of indefinite detention, as well as through the inactions that occur therein (Loughnan, 2022). As Loughnan’s account of the death of Hamid Khazaei, a 24-year-old man who was held in offshore detention on Manus Island graphically illustrates, the withholding of care itself – or the doing of nothing – can in fact entail an extensive amount of action on behalf of the State, such as the significant bureaucratic labour that is involved in providing complex rationales for the non-giving of care. Accordingly, Loughnan conceptualises Australian offshore detention centres as ‘zones of neglect’, which are deliberately produced, and within which (medical) inaction ought not be conceptualised as a passive phenomenon, but rather, as an active withholding of treatment such that people sometimes die (Loughnan, 2022). For Loughnan (2022), these zones of neglect are thus ‘necrositic’, insofar as death is ‘produced by the site in which a person resides’ (p. 2). Indeed, it is this necrositic aspect that illuminates how ‘Australia’s denial of proper healthcare to refugees has become a form of border violence’ (Dehm et al., 2022: 5).

For Nethery and Holman (2016), the purpose of the harm and pain which are deliberately produced by the violence of the Australian border regime is two-fold. As they elaborate:

On the one hand, the government hopes that such a harsh detention regime will deter potential asylum seekers from travelling to Australia by boat. On the other, the creation of a harmful environment encourages detainees to withdraw their application of asylum for Australia and return home (p. 1019).

Weber (2007) labels the function of this harm ‘punitive prevention’ (p. 77), while Boochani (2016), who was imprisoned in offshore detention for 6 years, puts it simply: ‘In Manus Prison, the pain is there to send you home’.

Although pain and harm are deliberate features of the Australian offshore processing regime – which is supported by both the ALP and LNP – it is nevertheless with respect to this pain that a divide between them emerged in relation to Medevac. For the former – and others who supported Medevac and the continuation of offshore processing – Medevac could mitigate some but importantly not all of the harm caused by the practice of offshore detention, while simultaneously keeping in place the system of ‘punitive prevention’, qua harm-as-deterrence, such that the border would supposedly remain ‘secure’. This was because, as articulated in the following section, the ALP maintained that the ostensibly ‘objective’ discourses of medicine and psychiatry could be used to accurately quantify and qualify pain, such that it could be guaranteed only the most genuinely ill people would be transferred under Medevac. By contrast, for the LNP, although the Australian border regime deliberately causes pain, this pain was nevertheless deemed too difficult to substantiate as genuine, such that its fabrication could not be adequately guarded against. Thus, while Ticktin (2011) writes that through the medicalisation of borders, the body is effectively converted into the subject’s ‘source of truth’ for claims to asylum (p. 140; see Aas, 2006), in the context of Medevac, this possibility was explicitly disavowed by the LNP due to the capacity of refugee applicants to lie and deceive.

In the following section, I contextualise the emergence of Medevac and analyse the ALP and LNP’s depictions of it. By so doing, I show how the discourse around Medevac inaugurated the figure of the malingering refugee, the biopolitical management of whom became a key subject of concern in debates about national security and the policing of the Australian border.

Part III: The origins of Medevac

In February of 2019, Medevac was passed in the Australian senate, thereby becoming law. For those who created it, Medevac was designed to mitigate the harm and pain caused by Australia’s border protection regime. However, Medevac also functioned as a simultaneous reinforcement of this regime, in that by making medical transfers possible, it appeared to ‘humanise’, and thereby legitimise the practice of offshore processing. To properly understand its function and the discourse around it, Medevac should be understood in relation to the context from within which it emerged, including an appreciation of longstanding debates about refugees and asylum seekers in Australia, as well as an understanding of the origins of the practice of offshore detention.

In settler-colonial Australia, national security and immigration have long been connected to one another (Davies, 2008; Giannacopoulos, 2007; Grewcock, 2009, 2014; Loughnan, 2019; Neumann, 2015; Perera, 2007; Perera and Pugliese, n.d.; Pickering, 2005; Zion et al., 2010). This perceived connection came drastically to the forefront of the national imaginary following the so-called ‘Tampa Affair’, which occurred in late August 2001, and came to be largely conceptualised through the securitisation discourses that proliferated shortly thereafter, following the attack on the World Trade Centre on the 11th of September 2001 (Giannacopoulos, 2005; Mathew, 2002). Known also as the ‘children overboard saga’, the image of the manipulative – that is, ‘non-genuine’ – refugee was etched indelibly into the Australian national imaginary when then Prime Minister, John Howard, claimed that refugees arriving by boat were deliberately throwing their children ‘overboard’, placing them at risk of drowning. According to Howard, they were doing so in order to manipulate authorities into rescuing them, so that a duty of care would be assumed, and they would be taken to the Australian mainland (Klocker and Dunn, 2003; Mathew, 2002; Neumann, 2015).

Following the Tampa Affair, the Australian Government devised a series of policies focused on defending national borders by preventing refugees from setting foot on ‘Australian soil’. This project was the cornerstone of John Howard’s 2001 election campaign, during which the now (in)famous soundbite, ‘we will decide who comes to this country and the circumstances in which they come’, was repeatedly delivered. Central to this commitment was the ‘Pacific Solution’, which inaugurated the practice of offshore detention, and received bipartisan support from the ALP. The aim of this ‘solution’ was to prevent asylum seekers from entering the Australian migration zone such that neither Australian law nor Australia’s obligations under various international treaties relating to the treatment of refugees would apply (Grewcock, 2009; Hirsch, 2017; Lacertosa, 2014; Neumann, 2015; Perera and Pugliese, n.d.; Pugliese, 2002; Vogl, 2015; Zagor, 2004). This strategy was achieved by intercepting boats at sea, and where possible, turning them back to their country of origin. When they could not be turned back, rather than being taken to the mainland, people were instead imprisoned in offshore detention centres, such as on Nauru and Manus Island. As they were thereby not technically held within an Australian jurisdiction, this meant Australian law would not be deemed to apply. By so doing, Australia sought to prevent ‘non-citizens’ from accessing Australian courts and the capacity to legally challenge any decisions made regarding their migration status.

A central pillar of the Pacific Solution was the Migration Amendment (Excision from Migration Zone) Act 2001 (Aus), the stated aim of which was ‘to excise certain Australian territory from the migration zone under the Migration Act 1958 for purposes related to unauthorised arrivals’. By excising particular territories, the Australian Government sought to strategically re-define the migration zone such that international agreements relating to the treatment of refugees and asylum seekers would not apply, and the government could avoid its obligations therein. As Joseph Pugliese elaborates:

This policy meant that Australia’s border both contracted—through the excision of outlying Australian territories, like Christmas and Cocos Islands, from the migration zone—and expanded—through the annexure of spaces in other sovereign states. Manus Island in Papua New Guinea (PNG) and Nauru have been effectively appropriated by Australia in ways that extend Australia’s borders, while also disowning Australia’s accountability for actions that take place within these extended spaces (Perera and Pugliese, n.d.).

Through this simultaneous excision qua annexure, the Australian Government produced a space that was liminal in its neo-coloniality: neither properly inside nor outside the nation, but nevertheless, crucial to the intended operation of its border regime.⁴ Indeed, somewhat paradoxically, these excised but simultaneously annexed zones worked to strengthen the Australian border by making it less well-defined.

Although the Pacific Solution was officially disbanded in 2007– when the LNP lost government to the ALP – its legacy, and that of the Tampa Affair, have nevertheless continued to influence public and political discourse in Australia, resulting in a range of comparable iterations of refugee and asylum seeker policy (Grewcock, 2014). Indeed, upon being re-elected in 2013, the LNP moved to quickly reinstate a similar policy of offshore detention, dubbed ‘Operation Sovereign Borders’ (OSB), which remains in effect today. As emphasised on the Australian Government website, OSB is ‘a military-led border security operation’, which is designed to prevent anyone from reaching the Australian mainland. As the OSB website with accompanying video states:

Journey to nowhere:

If you travel illegally by boat.

You could be stuck at sea for months, and months.

Don’t risk a journey to nowhere.

Zero Chance of illegal migration.⁵

In 2017, the LNP government reiterated the link it had continually made between national security and refugees – as instantiated by post-9/11 and Tampa Affair securitisation discourses, and Operation Sovereign Borders – by merging its border security and immigration portfolios into one ‘super-department’, renamed ‘Home Affairs’. Under this arrangement, the perceived link between refugees and national security was continued, whereby Home Affairs took carriage of national security, border security, counter terrorism, immigration, Australia’s refugee intake, and its offshore detention and processing regime.

The securitised response by the Australian Government to refugee arrivals led to inadequate and at times fatal healthcare being provided to those held in offshore detention, as documented by treating medical personnel (Green and Eagar, 2010; Loughnan, 2022; Mares, 2016; Steel and Silove, 2001; Young and Gordon, 2016). The awareness of these conditions was bolstered through the work of groups like Amnesty International and the release of The Nauru Files by the Guardian, Australia.⁶ While Medevac was initially designed as a means to ameliorate these circumstances through a series of parliamentary amendments, it nevertheless came to replicate the very securitisation discourses upon which offshore detention itself was originally predicated. This is because the ALP provided its support for Medevac – against the LNP government’s wishes – only on the basis that the Minister for Home Affairs would retain the power to veto any medical transfer on ‘national security’ or ‘character grounds’, irrespective of any medical advice that may have been provided. In this way, Medevac reiterated the securitisation discourses that underpinned Australia’s regime of offshore detention from the outset, even if ostensibly, it was designed to mitigate the very effects of this regime.

Part IV: The image of the non-genuine refugee

In Australia, as abroad, racist and xenophobic discourses have long featured depictions of what nationalists have called ‘bogus’ and non-genuine refugees (Ahmed, 2014: 1; see also Davies, 2008; Loughnan, 2019). This recurring image of the figure of the non-genuine refugee is of a subject who ‘slips through the cracks’ of the border and its regulation, either surreptitiously, or through some other form of deception, such as by throwing its children overboard to manipulate potential rescuers (as in the case of the Tampa Affair), or by submitting ‘bogus’ documents in an attempt to gain asylum (see Vogl in Biber et al., 2021: 94–111). It has been observed, for example, that members of far-right nationalist ‘defence leagues’, such as the Australian Defence League (ADL) and English Defence League (EDL) in the United Kingdom, consistently portray refugees as untrustworthy people who are attempting to enter the nation under false pretences. Indeed, for the ADL and EDL, refugees are not refugees at all, but rather, are ‘economic-’ and ‘education-tourists’, drawn to ‘Benefit Britain’ for its ‘generous welfare system’ (Gillespie, 2021). In these nationalist depictions, by entering the nation wrongfully, the figure of the non-genuine refugee not only contaminates the nation (Ahmed, 2014; Balibar and Wallerstein, 1991; Robinson and Gadd, 2016), but takes advantage of it as well, such as by receiving welfare payments, public housing, education or healthcare. For example, former LNP Prime Minister of Australia, Tony Abbott, invoked this logic when commenting on a High Court decision to award compensation to persons deemed to have been illegally imprisoned by Australia on Manus Island Detention Centre. As he surmised: ‘[this] looks like a windfall for people who unfairly took advantage of our nation’s generosity’ (cited in Doherty, 2017).

The idea that non-genuine refugees could use deception to unfairly take advantage of the nation and its generosity – as for example, with the Tampa Affair – continued as a significant feature of the LNP and ALP’s debate about Medevac. However, with the advent of Medevac and its medicalisation of the border, the terrain of this potential deception shifted to the realm of the medical: that is, to the question of the genuineness of the illness, pain and suffering of the other. For example, on numerous occasions, then Minister for Home Affairs, Peter Dutton, claimed that people held in offshore detention were ‘trying it on’ by making false medical claims and claims of sexual assault (cited in Davidson, 2019). This tactic was arguably at its most acute when Dutton stated:

Let’s be serious about this. There are people who have claimed that they’ve been raped and came to Australia to seek an abortion because they couldn’t get an abortion on Nauru. They arrived in Australia and then decided they were not going to have an abortion. They have the baby here and the moment they step off the plane their lawyers lodge papers in the federal court, which injuncts us from sending them back. In some of those cases, I think you could question whether or not people needed medical attention. That’s the reality (cited in Davidson, 2019).

In a similar vein, Dutton also raised the possibility that people were deliberately becoming pregnant in order to secure a transfer to the mainland for medical treatment. In claims that echoed those of the Tampa Affair, where refugees were accused of instrumentalising their children and putting them at risk, he suggested that such pregnancies were designed to produce ‘anchor babies’, which would tie their parents to Australia:

It’s frustrating because it’s been very clear to them at every turn that they were not going to stay in Australia, and they still had children. We see that overseas in other countries, anchor babies, so-called: the emotion of trying to leverage a migration outcome based on the children (cited in Karp, 2019).

A particular concern of the LNP government was the possibility that transfers would be allowed to occur on ‘mental health grounds’ for psychological or psychiatric treatment. The reason for this concern, they said, was because mental health conditions can be fabricated more easily than other health issues by deliberately self-harming. To this end, Dutton claimed Medevac had provided those in detention with an incentive to attempt to manipulate authorities through self-harm. As he elaborated:

People have come to our country, people have self-harmed on advice from some of the refugee groups or advocates; people have self-harmed in significant numbers. [. . .] They’ve done that because of this medical evacuation bill that Labor introduced (cited in Australian Associated Press, 2019b).

While Dutton repeatedly denied the legitimacy of the medical circumstances of those held in offshore detention, he also emphasised that if transferred for treatment, refugees and asylum seekers would be taking the place of ‘legitimate’ citizens. As he claimed:

People who need medical services are going to be displaced from those services, because if you bring hundreds and hundreds of people from Nauru and Manus down to our country, they are going to go into the health network [. . .] I don’t want to see Australians who are in waiting lines at public hospitals kicked off those waiting lines because people from Nauru and Manus are now going to access those health services. I don’t want to see Australians who are on waiting lists for housing, or already occupying housing, being kicked out of that housing because of people arriving off Manus and Nauru. It’s not fair . . . these people are conning us (cited in Koziol, 2019, my emphasis).

In the above pronouncements, Dutton’s depictions of refugees and asylum seekers hinge on the series of interconnected binaries outlined in Part I. According to his narrative, refugees and asylum seekers are illegitimate, undeserving, non-genuine, and indeed, malingering. By contrast, Australians – who stand as the ‘we’ and ‘us’ to whom Dutton’s pronouncements are addressed – are implicitly the opposite: they are genuine and legitimate, and deserving of medical treatment and housing. Moreover, in the picture Dutton paints, it is as if Australians and refugees are at risk of swapping positions. This is because by ‘coming down to our country’ and ‘conning us’, dishonest refugees would supposedly be taking the place of honest Australians, unfairly kicking them off waiting lists for medical services, and potentially even ‘out of’ housing, such that Australians, rather than refugees, would become the ones who are ‘displaced’.

In addition to arguing Medevac would cause Australians to be ‘displaced from. . .services’, Dutton also argued that by facilitating the transfer of malingering applicants from offshore detention to the mainland, Medevac would simultaneously allow ‘bad people’ into the nation. According to him, this could include people with links to organised crime, terrorism, the Taliban or the Islamic State (as cited in Hadley, 2019). So too, for Dutton, Medevac had rendered the nation and its border vulnerable by:

Allowing people to come into our country who have serious allegations of sexual assault or being involved in sexual relationships with young girls. One person has been accused of murder, out of Iran. Under the Labor Party bill, or now law, we cannot stop that person from coming in. [. . .] People on Nauru and Manus with similar allegations. . .now have a right of passage to our country (cited in Hadley, 2019).

Here, Dutton’s framing highlights the way right-wing nationalist and xenophobic discourses attempt to portray refugees as ‘crimmigrants’ whose mobility constitutes a threat to the nation (Aas, 2011; Franko, 2019; Stumpf, 2006; see also: Ahmed, 2014: 79–80). Whereas earlier, Dutton claimed refugees were falsely depicting themselves as victims of violence and sexual assault, here, he was claiming they were the perpetrators. What this shows is the way xenophobic discourses attempt to portray refugees as occupying a position of non-equivalence, in which they can rape but never be raped, and can murder but never be murdered. In short, they are positioned such that their capacity to inflict pain is presumed known, while their capacity to experience it is rendered unknowable.

The above examples of the LNP’s discourse show that for them, Medevac functioned as a vector through which pre-existing narratives about refugees could be articulated and re-deployed. In these depictions, which invoke racist motifs about refugees and asylum seekers, those transferred under Medevac would come as a flood of potentially dishonest and dangerous people, that could overwhelm the nation and its medical system, to the detriment of ‘Australians’. To this end, recall Dutton’s claim that Medevac ‘is going to see. . .hundreds of people coming here very quickly’, as well as Coleman’s assertion that ‘we expect that in short order substantially everyone will come to Australia. . .because the bill doesn’t even require people to be sick’. While these narratives were not new per se, with the advent of Medevac, they came to be remapped and reiterated in new terrain: that of the biomedical. In the coming section, I examine the nationalistic function these narratives fulfilled, before moving to consider the specific effects of their re-deployment in the realm of the biomedical.

Part V: The function of the non-genuine refugee

The motif of the non-genuine refugee – now instantiated in the figure of the malingerer – fulfils both a political and affective function for right-wing nationalists. As Sara Ahmed notes, ‘by differentiating between genuine and bogus asylum seekers’, nationalists can be exclusionary – indeed, sometimes extremely so – while nevertheless sustaining an image of themselves and their nation as ‘generous’ (Ahmed, 2014: 46). Recalling Abbott’s comments above – that ‘[this] looks like a windfall for people who unfairly took advantage of our nation’s generosity’ – this observation seems prescient. But so too, I maintain Ahmed’s observation applies to those who supported Medevac as an amelioration to the continuation of the practice of offshore detention, such as the ALP. For those who adopted this position, Medevac enabled the creation of an image that was both ‘tough’ on refugees and border security, and yet simultaneously ‘compassionate’.

The function fulfilled by the categories of the genuine and the non-genuine refugee – qua the ill and the malingering – is significantly bolstered by the notion that it can be difficult to tell one from the other. On this point, Ahmed astutely notes that the very possibility that one might be unable to distinguish between the genuine and the non-genuine refugee allows right-wing nationalists to police the border even more harshly, while nevertheless sustaining an image of themselves and the nation as ‘good’ (Ahmed, 2014: 47). Indeed, the more difficult one imagines it is to tell, the more harshly one can justify policing the border: thus, the harshness of the border regime increases correlative to the imagined deceptiveness of the other. For this reason, while Davies (2008) notes that although the ‘idea of a “non-genuine” refugee only makes sense within a discursive framework that acknowledges the theoretical possibility of “genuine” refugees’ (p. 19), the very existence and ever-present possibility of the former means that the latter rarely ever needs to be acknowledged. This is because for those who subscribe to the ontology of the genuine and the non-genuine, and the good and the bad, the possibility of deception enlivens the possibility that ‘any. . .incoming bodies could be bogus’, and that therefore, ‘in advance of their arrival’, any refugee can justifiably be ‘read as the cause of an injury to the national body’ (Ahmed, 2014: 47). What this means, for those who subscribe to the discourse of the genuine and the non-genuine, and the ill and the malingering, is that the fantasy of the nation as inherently good can not only co-exist with a harsh border regime, but also necessitate and indeed justify one. That is, for right-wing nationalists, the extent to which refugees are articulated as deceptive increases the harshness by which the border can be policed without jeopardising the idea that the nation is inherently ‘good’, ‘generous’ and ‘welcoming’.

Dutton evinced the above logic when extolling the ‘positive’ effects of the harm-as-deterrence model adopted by Operation Sovereign Borders. In reference to the high-profile case of the Murugappan family, Dutton stated:

If you say yes to this family how you can say no to the 6,000 families behind. As soon as you allow those people smugglers to get back into control, the families and faces you won’t see will be [those of] the people that go to the bottom of the ocean again (cited in Karp, 2019).

Here, Dutton was asserting that by harshly imprisoning some, such as the Murugappan family, and saying ‘no’ to their applications for asylum, his policy was actually saving others from drowning by dissuading them from attempting a journey to Australia by boat in the first instance. The LNP government applied this same logic to Medevac, in that they maintained that by creating the very possibility of medical evacuation and treatment – which is ostensibly an act of care – Medevac would actually cause harm by encouraging more people to attempt to travel to Australia by boat, thereby occasioning more deaths at sea. Thus, while the logic of the genuine and non-genuine refugee can paradoxically sanction the nation’s harsh treatment of the other as a support to its own image of itself as ‘good’, so too, it can produce an inverse logic: which is that through acts of apparent care, the nation can actually cause harm. In this discourse, the well-known adages ‘to be cruel to be kind’, and ‘tough love’, therefore appear to apply with respect to the border.

To reprise briefly, longstanding nationalistic, racist and xenophobic discourses often assume a paranoid orientation towards the figure of the refugee.⁷ They depict the figure of the refugee as one who would sneak past the border, or deceive those who enforce it, so as to enter the nation with ulterior motives (as, e.g. ‘economic-’ and ‘education-tourists’). In the words of nationalists and right-wing politicians like Peter Dutton, ‘these people are conning us’; moreover, they are doing so, to borrow a phrase from former Prime Minister Tony Abbott, to ‘unfairly [take] advantage of our nation’s generosity’. Thus, the nation’s border – and indeed, even some places beyond the border, such as excised territories – must be strongly controlled and enforced.

With the advent of Medevac, which medicalised the Australian border protection regime, the terrain of these articulations of the figure of the deceptive refugee shifted, albeit without changing structurally. Debate about the genuineness of the refugee and their motives – that is, ‘are they really fleeing conflict, or are they an economic-tourist?’ – both expanded and enveloped the question of pain and harm – that is, ‘do they really need medical treatment, or are they faking that as well?’ This question was relevant both for those who supported and opposed Medevac in the strongest terms. For the former, the ‘objective’ discourses of medicine and psychiatry were deemed able to answer the question with sufficient certainty to keep the border secure and intact. This meant that for supporters like Plibersek, the medicalisation of the border effectuated by Medevac had a legitimising effect on the practice of offshore detention. Indeed, for the ALP, the provisions Medevac effectuated could successfully identify the genuinely ill, meaning they could receive the medical treatment they required without the systems of indefinite offshore detention needing to be discontinued. By contrast, for opponents of Medevac such as the LNP, no diagnosis of the other’s medical condition could ever be sufficiently assured as to protect the nation against the deceptiveness of the other. Indeed, for Dutton, Medevac not only rendered the border vulnerable to the deceptiveness of the malingering refugee, but so too, vulnerable to ‘activist doctors’ (Remeikis, 2019) who would make favourable findings, and ‘refugee advocates’ (Australian Associated Press, 2019b), who he alleged would coach applicants on what to say to secure a transfer under Medevac.

Importantly however, despite these differences in their explicit stance on Medevac and medical evacuation provisions, both the ALP and LNP’s positions nevertheless bore a structural affinity for one another, in that both were – and at the time of writing still are – committed to the notion that there are malingering refugees about whom the nation ought to be wary. More than this however, for both, the very capacity of this figure to falsify medical conditions indicates that it always-already represents a threat to the nation. As such, for both the LNP and ALP, the figure of the malingering refugee ought to remain offshore, ostensibly beyond the Australian border, yet nevertheless still held firmly within the grasp of the Australian border regime: indeed, perhaps ‘indefinitely’ and ‘arbitrarily’ so.⁸

Part VII: Conclusion

After more than a year of intense debate, in December 2019, Medevac was repealed – indeed ‘repaired’ – by the LNP when it successfully passed the Migration Amendment (Repairing Medical Transfers) Act 2019 (Aus), with the support of independent far-right senators Jacqui Lambie and Pauline Hanson. While it was in place, the LNP and ALP’s debate about Medevac both relied on and reproduced many existing narratives about refugees and national security, including articulations of the former through a series of reductive binary classifications, including those of the genuine and the non-genuine; the good and the bad; the lawful and the unlawful; and the legitimate and the illegitimate. While these categories were already well-established, the advent of Medevac steered them to the terrain of the biomedical. The effect of this transposition was the biopolitical production of the figure of the malingering refugee, whose supposed unlawfulness, illegitimacy and non-genuineness translated into a supposed proclivity to fabricate its medical circumstances so as to penetrate the border. With the inauguration of this new figure, the terrain of debate about refugees in this land now called Australia also shifted and expanded, albeit without transforming structurally. Indeed, the question of the genuineness of the other remained, but was merely reoriented to focus on the extent to which the other’s medical circumstances, and therefore pain, harm and suffering, were either legitimate or not legitimate.

Although the LNP and ALP held diametrically opposed positions on Medevac, both were nevertheless complicit in the biopolitical production of the figure of the malingering refugee. This is because both subscribed to and reproduced the ontological and epistemological foundations upon which the pejorative category is predicated: that is, both were structured by the notion that the figure of the malingering refugee exists, and moreover, that its capacity to deceive, qua malinger is itself indicative of a threat posed to national security and the integrity of the Australian border. What distinguished the LNP and ALP was merely their position on the degree to which the figure of the malingering refugee could be rendered ‘known’ through the logics of the medical border regime, and by extension of this, their position as to how that figure should then be managed in accordance with this presumed knowledge, or lack thereof.

Despite the differences in their respective positions, both the LNP and ALP attempted to leverage the figure of the malingering refugee as a mechanism through which to forward an image of themselves as strong on border protection, while simultaneously depicting the nation as fundamentally ‘good’. These depictions of simultaneous strength and goodness hinged – albeit for different purposes – on the creation of the figure of the malingering refugee, who fabricates and exaggerates its medical circumstances, and, through its very alleged capacity for deception, is deemed to constitute a threat to the border and therefore nation itself.

For many, the LNP’s repeal of Medevac and its limited medical evacuation provisions from offshore detention constituted a resumption of the hard-line stance Australia has taken towards refugees and asylum seekers. In this article however, I have argued that under Medevac, this hard-line stance never halted. On the contrary, it continued, but merely came to be temporarily articulated in a different register: namely, that of the biomedical. While this transposition was designed to mitigate the cruelty of the Australian border regime, this cruelty was not so much alleviated, as biopolitically obscured.

Although Medevac was repealed in 2019, an understanding of the discourses that led to its creation and contributed to its operation remain acutely relevant, not only in the Australian context, but abroad as well, where similar border protection regimes have been implemented or proposed. In the Australian context, on the 6th of March 2023, the now incumbent ALP government again cited ‘national security’ concerns in voting with the LNP to oppose the Migration Amendment (Evacuation to Safety) Bill (2023), as introduced by the Australian Greens. Had this bill been successful, it would have mandated the evacuation of all refugees held in Nauru and PNG in light of the well documented lack of appropriate healthcare available in offshore detention. By so doing, the ALP reiterated and recommitted to the discourses that link immigration, refugees and national security, which themselves led to the adoption of Australia’s offshore detention regime and the production of the figure of the malingering refugee qua Medevac. Similarly, just 1 day later, on the 7th of March 2023, UK Prime Minister Rishi Sunak outlined the UK Government’s proposal to introduce a new ‘Illegal Migration Bill’, which explicitly emulated the policies and border protection regime of Australia, including the repetition of former Australian Prime Minster Tony Abbott’s infamous slogan, ‘stop the boats!’ So too, the proposed bill included provisions which stated that all refugees who arrive ‘illegally’ in the UK will be relocated to a third country, as they are when arriving in Australia.⁹ Indeed, in purporting to address prospective refugees, Prime Minister Sunak stated: ‘once you are removed, you will be banned, like you are in America and Australia, from ever re-entering our country’ (quoted in Howard, 2023). The only exceptions to this, Sunak stated, would be for unaccompanied persons under 18 years of age, as well as those experiencing ‘the most serious medical circumstances’. Thus, we again see the medicalisation of the border proposed as a technique in the purported management of ‘national security’. This prompts us to ask: to what extent will these ongoing and emerging policies – and the discourses upon which they are predicated – continue to produce the figure of the malingering refugee? How might future articulations of this figure be inflected, and to what end(s)?

Footnotes

Acknowledgements

I would like to thank the anonymous reviewers for their feedback, and also to give my sincere thanks to Claire Loughnan and Elodiea Wilson, whose generous thoughts on an earlier draft were extremely helpful.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Liam Gillespie

Notes

Author biography

Liam Gillespie is a Lecturer of Criminology at the University of Melbourne, Australia. He researches nationalism, racism, and the far-right, with an emphasis on street-based protest movements, ideology, riots, borders, and law.

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