Vogl, Anthea --- "Sovereign Relations: Australia' 'Off-shoring' of Asylum Seekers on Nauru in Historical Perspective" [2017] UTSLRS 27; Charlotte Epstein (ed), Against International Norms: Postcolonial Perspectives (Routledge, 2017)

Last Updated: 16 March 2018

Sovereign Relations: Australia’s ‘Off-shoring’ of Asylum Seekers on Nauru in Historical Perspective

Dr Anthea Vogl

This is a pre-publication version of the following book chapter:
Anthea Vogl, ‘Sovereign Relations: Australia’s ‘Off-shoring’ of Asylum Seekers on Nauru in Historical Perspective’ in Charlotte Epstein (ed) Against International Norms: Postcolonial Perspectives (Routledge, 2017), 158-174.

Introduction

The concomitant policies offshore processing and territorial excision are foundational and extraordinary aspects of Australian refugee and immigration law. First introduced in 2001, territorial excision designates certain parts of Australian territory to be ‘excised’ from Australia’s migration zone. Under this policy, any person who, without authorisation, reaches an ‘excised offshore place’ by sea is classified as an ‘unauthorised maritime arrival’ (Migration Act 1958). Unauthorised maritime arrivals are held to be outside Australia’s migration zone and may not apply for a visa under Australia’s existing onshore visa application process. This policy of territorial excision redefines traditional understandings of territorial sovereignty, reconstructing the consequences of presence on sovereign territory for a specific class of persons: irregular migrants who arrive in Australian territory by sea.

The policy of territorial excision has – in two distinct phases – been accompanied by a regime of so-called ‘offshore processing’ of individuals seeking asylum in Australia. Under the disturbingly named ‘Pacific Solution’ (2001-2008) and then the ‘Pacific Strategy’ or ‘Pacific Solution Mark II’ (2012-ongoing), people seeking protection in Australia who arrive by boat may be sent to neighbouring Pacific states, where centres have been set up to detain and process a portion of Australia’s refugee arrivals. The Australian Government funds in full the operation of these centres. To date, the two countries involved in Australia’s offshore regime are Nauru and Papua New Guinea (PNG).
This chapter focusses on the offshore processing centre on Nauru, in order to interrogate how the norm of sovereignty is used, or rather, abused in the Australian policy of offshore processing. Nauru is an island state, located in the Central Pacific Ocean with a population of approximately 10,000, including a current non-Nauruan population of about 1000 people. It is the world's smallest republic, and consists of a single coral atoll that spans roughly 21 square kilometres; driving by car around Nauru's only ring-road takes about 20 minutes. The island's remoteness has been described as 'impossible to exaggerate' (The Economist 2001), and the distance to the closest territory, Banaba (Ocean Island) to the southeast, is 266 kilometres (Davidson 1968, 145). It is on this tiny, isolated island that many of Australia’s asylum seekers have been housed. As of January 2016, the Nauruan Regional Processing Centre hosted 484 asylum seekers, including 58 adult women and 54 children, though the number of occupants in the centre has at times exceeded 1200 (Department of Immigration and Border Protection 2016, 4).

The Australian Government has repeatedly and consistently claimed that under the laws of sovereignty, Nauru is responsible for the refugee processing centre on its territory. Against this view, I argue in this chapter that the Australian Government abuses foundational norms of sovereignty in the policy of offshore processing in order to avoid liability for refugee detention and processing on Nauru. In so doing, the Australian Government undermines Nauru’s formal sovereign status, exercises effective control over Nauruan territory, and in essence implements its own migration and asylum policy on Nauruan soil. This chapter further argues that Australia’s offshore processing regime on Nauru is best understood through a postcolonial lens; that is, Australia’s use of Nauruan territory to establish a processing centre beyond Australian legal regulation is directly continuous with Australia’s colonial history in the Pacific, and with Nauru in particular. Australia's ability to exploit Nauru's territory and its sovereignty in order to implement its own migration and ‘border control’ strategies is made possible by Australia's former colonial relationship with Nauru. In turn, offshore processing extends and continues Nauru’s ongoing relationship with Australia of dependence and aid, which began with Australia’s colonial exploitation of Nauru’s land and resources. While similar questions and arguments apply to Australia’s policy of offshore processing on PNG, due to scope, this chapter does not explore the processing centre on PNG’s Manus Island.

This chapter’s analysis of Australia’s offshore processing policy places it in the context of Australia’s colonial and postcolonial relationship with Nauru, particularly the aggressive Australian and British exploitation of Nauru’s formerly rich phosphate stores. Part One of the chapter details the policy of offshore processing; Part Two sets out Nauru’s history of structural and colonial exploitation to argue that the current Processing Centre continues a history of exploitation of Nauru by Australia; and finally, Part Three presents the Australian Government’s position regarding who is responsible for offshore processing on Nauru – and critiques this view as a direct abuse of both Nauru’s sovereignty and the ‘norm’ of sovereign responsibility.
Elsewhere I have considered and critiqued the Australian Government’s rationale for the policies of territorial excision and offshore processing, as well as the hermetic, securitised vision of Australia’s borders that these policies seek to construct (Vogl 2015). In this chapter, however, I wish to focus on offshore processing not as a policy that governs how Australia controls its borders or treats asylum seekers, but rather as a regime quite literally built on Australia’s relationship with its former colonies. Indeed, the regime is premised on the Australian Government’s willingness to exploit the postcolonial sovereignty of the ‘offshore’ island of Nauru, such that because of its remarkably recent sovereign status Nauru is responsible for Australia’s offshore processing.

In relation to so-called irregular migration, as with any area of law or governance, language and naming are laden with power, politics and contested meaning. The Australian Government refers to asylum seekers on Nauru as 'transferees,' erasing their status as refugee applicants and defining them by virtue of their forced relocation to an offshore processing centre. Unless directly quoting, I will use the term ‘asylum seekers’ to refer to the population of people sent to Nauru for processing. Both the Nauruan and Australian Governments refer to the processing centre on Nauru as the ‘Regional Processing Centre,’ and object to its characterisation as a detention centre. I refer to it as the Processing Centre throughout this chapter, and make explicit reference to when and how the Processing Centre has mandatorily detained asylum seekers. Finally, and most significantly, the very designation of Nauru and PNG as ‘offshore territories’ ignores or indeed erases their status as sovereign states; the terminology defines these states, in a deeply imperial register, by geographic reference to Australia, the metropole. The 'onshore' or territorial centre is that of the (imperial) Australian mainland – a point critical to my discussion throughout this chapter.

I. Asserting Australian Sovereignty: Territorial Excision and Offshore Processing

Onshore asylum seekers, particularly those arriving by boat, have been at the centre of political debate and discussion in Australia for well over two decades. Representatives from each of Australia’s two major political parties have agreed that domestic policy should aim to minimise and deter the number of asylum seekers reaching Australia. Although the rationale for deterrence has varied, questions of national security and sovereign rights have featured consistently in policy debate, as onshore asylum seekers have been cast as illegitimate, illegal or as threats to the safety and integrity of the state (see generally Grewcock 2009). The policies of territorial excision and offshore processing, and my discussion of them here, are best understood within this wider context of Australia asserting its sovereign ‘right’ to control its borders, even as the idea of ‘perfect’ border control has been persuasively critiqued as being both fantastical and outside the reach of contemporary governments (Sassen 1996; Dauvergne 2008).

Asylum seekers attempting to reach Australia are transferred to Nauru for processing under the 'Pacific Solution.' Much literature places this particular policy within the context of refugee and asylum seeker policy in Australia, rather than locating it within Pacific history, or indeed as part of Nauruan (or alternatively, Papua New Guinean) history or politics. In this section, I briefly explain the establishment of refugee processing within the context of Australian law and policy, primarily in order to critique the Australian Government’s construction of refugee processing on Nauru as a function and responsibility of the Nauruan Government.

The primary function of offshore processing is to prevent people who arrive by boat without a valid visa from entering Australian territory, and to exclude them from accessing the statutory framework under which applications for a protection visa can be made. Jennifer Hyndman and Alison Mountz point out that Australia practises an extensive geography of exclusion, via interdiction of asylum seekers and boats, detention policies, and the externalisation of asylum – of which offshore processing and excision form just one part (Hyndman and Mountz 2008, 260). Offshore processing, first introduced in late 2001, was part of an extensive set of reforms that was presented as a ‘tightening up’ of Australia’s borders (Australian Associated Press 2001). The reforms were part of an ‘urgent government response’ to what were characterised as waves of boats carrying smuggled migrants and heading towards Australia’s territorial waters (Clennell 2001).

The arrival of six Indonesian smuggling boats in Australian waters in this period was characterised as a ‘loss of control’ of all borders, and it was assumed that more and more boats were set to arrive (Manne and Corlett 2004, 12–14). One such boat was the Palapa 1, a small Indonesian fishing boat carrying 433 asylum seekers towards Australia in August 2001, which was rescued by a Norwegian freighter, the MV Tampa. The Australian Government aggressively denied the MV Tampa permission to enter Australian waters and dock at the Australian territory of Christmas Island. In a move that attracted worldwide attention, Australian defence force personnel took control of the Tampa before it was able to reach the island, then disembarked its new passengers onto a naval carrier ship and set sail out of Australian waters (Taylor 2005).

On 26 September 2001, less than one month after the MV Tampa performed its rescue of the Indonesian fishing boat, and two weeks after the September 11 attacks in the United States, the Australian Parliament passed a package of six Acts amending the Migration Act 1958 (Cth) (Mathew 2002).^[1] These legislative reforms redefined Australian islands and territories as ‘removed from the Australian migration zone’ in certain circumstances, thereby creating a new category of Australian territory, namely ‘excised offshore places’.^[2] Under the new law, any person without a valid visa,^[3] who first reached Australian territory at ‘an excised offshore place’ by sea, was classified as an ‘offshore entry person’.^[4] Crucially, ‘offshore entry persons’ were prevented from applying for a visa under Australia’s existing application process;^[5] were precluded from initiating legal proceedings against the Government to challenge their designation as ‘unlawful non-citizens’; and could be transferred to third countries for processing.^[6]

As the ‘Palapa 1’ asylum seekers were stranded on the high seas, and the Australian Government declared that none of them would ever set foot on Australian territory, the Government devised the policy ‘solution’ of offshore processing. The Government struck a deal with the Nauruan and PNG Governments to host the 433 asylum seekers, and subsequent unauthorised boat arrivals, on their territory. Nauru and PNG were not the only Pacific states consulted. The Australian Government approached Fiji, East Timor, Tuvalu and Kiribati (Kneebone 2006, 708). Only PNG and Nauru, however, signed on. They did so in the initial 2001 stage of the policy and again in 2012. To establish a processing centre on Nauru, in 2001 Australia invested about $400 million dollars in Nauru and provided approximately $AU20 million in extra aid. This constituted a roughly sixfold increase in aid to Nauru, a near-bankrupt state at the time, in exchange for Nauru's participation in offshore detention and general compliance (Afeef 2006).

Australia’s asylum policy in this period can be aptly described using Michelle Foster and Jason Pobjoy’s conceptual framework of ‘excision and exile’ (Foster and Pobjoy 2011, 586). For Foster and Pobjoy, excision (of Australian territory) and exile (of asylum seekers for processing to locations outside of Australia) explain the ‘mutually supporting’ features of Australia’s approach to onshore boat arrivals from 2001 to 2008. When the Labor Government was returned to power in 2008, it dismantled the entire Pacific Solution, criticising the policy as punitive and cynical (Foster and Pobjoy 2011, 7). From August 2012, however, offshore processing once again became the backbone of government policy; this reintroduction of third-country processing broke one of the Labor Party’s core electoral promises and was dubbed the Pacific Strategy or the Pacific Solution Mark II.

The second phase of the Pacific Solution, which remains in effect today, is the focus of this chapter. The Pacific Solution Mark II implemented the recommendations of the Houston Expert Panel on Asylum Seekers, a government-commissioned panel that was charged with producing a report on ‘how best to prevent asylum seekers risking their lives by travelling to Australia by boat’ (Australian Government 2012, 9). A chorus of scholars have critiqued the ‘saving lives’ justification for offshore processing as cynical and misleading, and deemed it a remarkably ineffective way of protecting asylum seekers (Ware et al. 2012). Nonetheless, despite the Labor Government’s pre-election commitment to repealing offshore processing arrangements, the 2012 nominally non-partisan Houston Panel enabled the reintroduction of a full regime of offshore processing.

II. Fertilising the Empire: a history of imperial exploitation of Nauru

My argument in this chapter is that Australia’s exploitation of Nauruan sovereignty must be read as continuous with Australia’s historical exploitation of Nauruan territory. Australia’s use of the norm of sovereignty to escape responsibility for offshore processing – whilst using Nauruan territory to perform its own sovereignty in the region – reveals what Jini Kim Watson had called the ‘unevenness’ of the distribution of sovereignty between Australia and Nauru. Indeed, in one of the handful of pieces addressing offshore processing in historical perspective, Watson maintains that we must situate the 'Pacific Solution’ as part of ‘a longer story of postcolonial sovereignty in Oceania.' Further, she argues that examining the Pacific Solution through the lens of colonialism, decolonisation and contemporary regional relations reveals the 'necessary and prior constitution of Pacific Islands as potential external detention sites' (Watson 2015, 30). This section seeks to tell the ‘longer story of [colonial] and postcolonial sovereignty’ on Nauru as a means of critiquing the Pacific Solution and Australia’s ability to ‘offshore’ unwanted arrivals to its territory.

Nauru's history has been defined by commercial and colonial interest in its land and resources. Over the past century, Nauru has been successively occupied or administered by no fewer than five colonial powers. In 1888, Nauru was annexed by Germany as part of its Marshall Islands Protectorate, and the German Government granted a German company, Jaluit-Gesellschaft, the exclusive right to possess unoccupied Nauruan land in exchange for the company underwriting the cost of administering the territory. Imperial interest in Nauru was based on its large store of highly valuable and rich phosphate reserves. Phosphate is a primary ingredient in commercial fertilisers and is used in the production of steel and munitions (Tabucanon and Opeskin 2011, 340). Soon after phosphate was discovered on Nauru, the British Pacific Phosphate Company gained a primary shareholding of Jaluit-Gesellschaft, and title over the land passed to them (Tabucanon and Opeskin 2011, 340). The initial profits from phosphate mining were shared with Germany. During World War One, however, Nauru was seized by Australian troops, and in the post-war ‘division’ of the Pacific Islands among allied powers, the League of Nations granted Britain, Australia and New Zealand joint mandate of Nauru. Australia was granted administrator status, and with it the power to make ordinances for ‘the peace, order and good government of the island’ (Leslie 1990, 412).

At the close of World War One, though, Australia had sought more than administrator status over the territory. The newly federated nation had aggressively attempted to assert its economic and indeed imperial interests in the region. At the 1919 post-war British Empire delegation in France, then-Australian Prime Minister William Hughes fought 'tooth and nail' in favour of Australia's full annexation of Nauru and New Guinea. Hughes emphasised the huge cost that Australia had incurred during the war and the need for the new nation to impose its own trade and migration policies in the region, and to keep out foreign interests (Thompson 1980, 212). Hughes also argued that the phosphate-rich Nauru was 'of considerable value not only as a commercial proposition but because the future productivity of [Australia] absolutely depends on such a fertiliser' (Thompson 1980, 212).

While Hughes 'reluctantly agreed to capitulate on the mandate issue,' Australia's control of both Nauru and its phosphate, and new territory within Papua New Guinea, nonetheless 'fulfilled longstanding imperialist desires towards the Pacific that have been called Australia’s ‘first foreign policy’ and elevated Australia from 'British colony to colonising nation’ (Watson 2015, 34). In signing the Nauru Island Agreement in 1919 Australia, Britain and New Zealand also established the British Phosphate Commissioners Board, which was given title to the phosphate deposits and the task of operating the phosphate business on behalf of the three governments. As Tabucanon and Opeskin note, this neat arrangement avoided 'the vesting of title in the mandate holders themselves, which would have been inconsistent with their obligations as trustees' (Tabucanon and Opeskin 2011, 341). From the end of the war, the British Phosphate Commissioners (BPC) operated out of Sydney, Melbourne, Auckland and London, and owned and operated Nauru's phosphate mines (Thompson 1980, 212). During World War Two, from 1942 to 1945, Nauru was occupied by Japan, and at least two-thirds of the population was deported as forced labour to Micronesia.^[7] When the war ended, Nauru was designated as a UN Trust Territory, with Australia, Britain and New Zealand once again acting as the tripartite trustees, and Australia as the administering power.

Both the mandate period and the trustee period that followed saw the 'unremitting destruction of Nauru’s physical environment' – and between 1919 and 1968, 34 million tons of phosphate were mined from Nauru (Tabucanon and Opeskin 2011, 341). Even though Nauru was a mandate and trustee territory, from 1947 Australia had the power 'to exercise full powers of legislation, administration and jurisdiction' over the island (Trusteeship Agreement for the Territory of Nauru 1947). The administrators mined, sold and profited from Nauru's phosphate stores. Nauruan phosphate was not sold at market value, but instead priced by the Commission to help subsidise Australian agriculture and production (Hughes 1964, 533).^[8] The British Phosphate Commission also provided Nauru with a negligible percentage of its phosphate revenue in the form of what is too generously called a 'royalty.' By 1964, the Nauruans were receiving royalties of roughly 7.6 per cent, while 'their claims for substantial ownership' were met with strong resistance from the British Phosphate Commissioners (Weeramantry 1992, 367).

In the course of extracting Nauru's phosphate, the Commission destroyed the island so utterly that in the late 1950s and early 1960s, the administrating governments agreed, in conjunction with the United Nations, that the most viable solution to the destruction of land and depletion of phosphate was the eventual resettlement of the entire population of Nauru in Australia. Somewhat incredibly, the Australian territories of Fraser Island and Curtis Island were both proposed as potential sites for a 'new' (though not independent) home for Nauru's local population. In the 1963 Trusteeship Council meeting, Australia formalised the details of its offer to resettle Nauru's population on Curtis Island; however, the agreement did not go ahead — in part because the Nauruan representatives were concerned about the loss of national identity and economic control over Nauru's natural resources (Tabucanon and Opeskin 2011, 349). The Nauruans involved in negotiations rejected the resettlement offer, and the country gained independence in 1968.

Alongside Australia’s history of administering Nauruan territory and near exhaustion of Nauru’s natural resources, the resettlement proposal reveals Australia's sense of propriety over both the resources and indigenous population of Nauru, as both a colonial and civilising force.^[9] After gaining independence, Nauru continued to operate the phosphate mines, until accessible phosphate stores ran out. In this period, Nauruans were 'temporarily and notoriously wealthy' (Teaiwa 2015, 378). Katerina Teaiwa notes that with wealth came widespread corruption and misuse of funds in Nauru, 'particularly by a global cadre of questionable investment advisers,' and the eventual bankruptcy of the Nauruan Government (Teaiwa 2015, 379).^[10] Australia provided a bailout plan and aid funding, became heavily involved in Nauru's administration, and also continued mining Nauru's phosphate. Indeed, the island’s debt levels and the destruction of its national industries meant that 'the transition from colonial territory to postcolonial nationhood [in Nauru]... has been especially marked by the structures of neo-colonialism and dependence' (Watson 2015, 35). As Teaiwa notes, Nauru still uses Australian currency, is significantly dependent on Australian aid and its economy certainly has not been 'rehabilitated' from its economic devastation, despite promises made by various incarnations of predominantly Australian-run mining companies (Teaiwa 2015, 377–8).^[11]

In its ‘heyday,’ Nauru possessed one of the world’s highest-grade deposits of phosphate. Although the primary deposits have since been exhausted, secondary mining of much less valuable 'marginal stores' is likely to continue for some time yet (Tabucanon and Opeskin 2011, 340). Opeskin and Daniel Ghezelbash put the point mildly but accurately when they write that the ‘economic vulnerability of some PICs [Pacific Island countries] make them susceptible to pressure by Australia’ to comply with its offshore processing proposals (Opeskin and Ghezelbash 2016, 2). That economic vulnerability is, as Teaiwa argues, the result of colonial exploitation. It is not – as contemporary political discourse might have it – a result of Nauru’s wanton and (recently) sovereign mismanagement of its own affairs.

The above history is partial, as it is a history ‘from above’ – of colonial resource and land grabs – and does not attend to a history of Nauru and Nauruans outside of imperial exploitation of its territory. Yet outlining, even in a cursory way, the details of colonial exploitation and devastation of Nauruan territory reframes discussions of Nauru’s ‘sovereign’ participation in the Pacific Solution. In the colonial period, Australia did not recognise Nauru or Nauruans as sovereign; yet it now wilfully uses Nauru’s sovereignty to ‘manage’ and outsource its own sovereign responsibility for asylum seekers who seek to or indeed have reached Australian territory. Australia persists in using Nauruan territory as part of the Pacific Solution. Furthermore, Nauru’s need for the ‘aid’ that the Australian Government has offered (in exchange for its hosting of an offshore detention centre) is a direct result of Australia’s exploitation of Nauru’s natural resources and the British Phosphate Commission’s failure to even partially rehabilitate the territory it mined.

The following, final Part of this chapter addresses in detail the establishment and operation of the Regional Processing Centre on Nauru, particularly from the time of its reestablishment in 2012, in order to critique how the Australian Government answers the on-going and critical question of who is sovereign over the Processing Centre. I discuss the Australian Government's position by examining two particular sources: first, the Australian Senate Committee Report, ‘Taking Responsibility: Conditions and Circumstances at Australia's Regional Processing Centre in Nauru' (Commonwealth of Australia 2015) (hereinafter ‘Taking Responsibility’ report); and second, the High Court of Australia decision of Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016). I show that Australia exercises full control over the running of the centre – and yet presents the processing centre and the policy of offshore processing as exclusively Nauruan and as reflecting the sovereign will of the Nauruan Government. In so doing, Australian erases both its historical, imperial administration of Nauru’s entire population and resources and, somewhat improbably, its own role in effecting, designing and implementing the present policy.

Part Three - Sovereign Responsibilities, Colonial Legacies

Regardless of the manner in which the Processing Centre on Nauru functioned, questions of sovereignty and responsibility would be raised. Yet from the centre’s inception, allegations of extreme physical and sexual abuse of asylum seekers, as well as neglect and mismanagement, have been levelled at the Centre (Moss 2015). As such, questions of responsibility, particularly in relation to allegations of flagrant breaches of duty of care, are both urgent and politically significant. And, they are significant not only for Australia and the Pacific States involved in offshore processing, but also, more generally, for the policy option of 'third country' processing of asylum seekers within refugee law. Where Global North states use the territory of poor or postcolonial states to process refugees, the option of ‘third country’ processing is rendered much less a move towards cooperation in response to asylum seekers, and much more a means to expel the ‘problem’ of refugee arrivals and border regulation to states, whose sovereignty and territory are available for use (Rajaram 2003).

The reintroduction of offshore processing on Nauru and Papua New Guinea in 2012 was motivated by the perceived 'large' numbers of asylum seekers arriving in Australia irregularly by boat (Migration Legislation Amendment (Regional Processing and other measures) Act 2012). The Houston Panel, which recommended the reintroduction of the Pacific Solution, suggested that the ‘capacity be established in Nauru as soon as practical to process the claims of IMAs [irregular maritime arrivals] transferred from Australia in ways consistent with Australian and Nauruan responsibilities under international law’ (Australian Government 2012, 16; emphasis in the original text). The reestablishment of offshore processing on Nauru was formally achieved by a Memorandum of Understanding (MOU) between the Australian and the Nauruan Governments in 2012 and 2013 (Republic of Nauru and Commonwealth of Australia 2012; 2013). The 2013 MOU amended the original document in order to permit so-called 'transferees' who were found to be refugees to resettle and remain in Nauru, subject to agreement between Australia and Nauru (Republic of Nauru and Commonwealth of Australia 2013, cl. 12).

The MOU reveals the extent to which the Australian Government and relevant Australian authorities determine who is transferred to Nauru and how these individuals are processed and housed, even whilst Nauru accedes to and accepts sovereignty over these arrangements. Most of the pledges made in the MOU are made by Nauru. Under the heading 'Commitments,' the MOU sets out that '[t]he Republic of Nauru assures the Commonwealth of Australia’ that it will not return transferees to any place where life or liberty will be threatened; and that it will process transferees according to the [UNHCR Refugee] Convention. Elsewhere in the agreement, it also states that it will house transferees and resettle refugees. And yet, key provisions of the agreement reveal that Australian authorities will carry out these tasks, with the two Governments 'jointly' determining how the agreement will be realised and implemented on Nauru. The Memorandum also clearly sets out that '[t]he Commonwealth of Australia will bear all costs incurred under and incidental to this MOU as agreed between the Participants' (Republic of Nauru and Commonwealth of Australia 2013).

As Watson observes, the 2013 MOU describes the two States as parties that are ‘wishing to build on their existing strong and cordial relations’ (Watson 2015, 42). In describing Nauru's role in the MOU, 'the Australian government has insisted on expressing the Pacific Solution as a set of bilateral service agreements between equally sovereign parties' (Watson 2015, 42). The former colonial relationship with Nauru, and Nauru's ongoing economic dependence on Australia, is omitted from these declarations of Nauru as a sovereign state, and of Nauru's sovereign responsibility for owning and administering the Processing Centre. From the very outset, though, the Australian Government established that it would itself control the terms upon which processing took place on Nauruan territory, via the Department of Immigration and relevant private contractors. Indeed, the Houston Report recommended a condition of processing on Nauru be that ‘[d]ecisions in relation to how [asylum seekers] in Nauru would be processed would be determined by Australian officials in accordance with international obligations ...' (Australian Government 2012, 48).

Throughout its existence, the Processing Centre has been operated by various private companies contracted by the Australian Government. The Government of Nauru has not been party to any of the contracts. The Australian Government has thus overseen the building and maintenance of the Processing Centre, through to all aspects of its daily operation, via a range of subcontractors providing core services such as health, welfare and processing assistance. Since September 2012, the Processing Centre has been operated by the international construction and engineering company, Transfield Services, whose contract is with the Australian Government.^[12] The International Health and Medical Services also holds a contract with the Australian Government for the provision of health care services to asylum seekers, and two NGOs, Save the Children and the Salvation Army, both hold substantial contracts for the provision of welfare services.

The Australian Government occupies an office at the Processing Centre, 'at which officers of the Australian Border Force carry out functions in relation to the Centre ... including managing service provider contracts, Commonwealth-funded projects, such as construction projects, and relationships and communications between the Commonwealth, the service providers and the Government of Nauru' (Plaintiff M68/2015 v Minister for Immigration and Border Protection 2016, 4). Under these arrangements, it is no accident that the corporations running the centre and their contracts function to keep the Australian Department of Immigration at one further remove from day-to-day involvement in the centre. In reading these arrangements as a neocolonial continuation of Australia’s imperial relationship with Nauru, the presence of these corporations (as contractees of the Australian Government) must be understood as part of Australia’s ongoing treatment of Nauru as a territory at its disposal, as ‘available for utilisation - not only in terms of the exploitation of resources, but also in terms of the negation of local populations... as [an] extra bit of land available for use’ (Smith 2012).

Against the Australian Government’s view, that the Processing Centre is the Nauruan Government’s policy and responsibility, international law experts have consistently maintained that the Australian Government is liable for the centre because it effectively controls the centre and the terms upon which asylum seekers are held there (Commonwealth of Australia 2015; Plaintiff M68/2015 v Minister for Immigration and Border Protection 2016). The Law Council of Australia, for example, has identified several factors in support of an assessment that the Australian Government exercises effective control over the Processing Centre on Nauru and the terms of its governance. Among other factors, the Australian government arranged and funded the Processing Centre’s construction and establishment; funds its operations; engages and oversees the contractors who run its daily operations; ‘maintains a staff presence’ at the centre to oversee operations; and ‘is solely responsible for the placement of all asylum seekers at the RPC’ (Law Council of Australia 2015, 13).

The facts of how the Processing Centre is formally constituted and managed reveal the minimal, or near-absent involvement of the Nauruan authorities — let alone their authority—in regards to its operation. In an Australian Government review into allegations of sexual abuse within the centre, even the 'on the ground', contracted managers of the Processing Centre reported that they could not give accurate evidence as they did not have sufficient knowledge of its day to day operations because third-party service providers reported directly to the Australian Department of Immigration (Moss 2015). Indeed, Transfield [as it previously was], through its subcontract with Wilson Security, made most of the decisions that shaped detainee’s daily lives, including ‘decisions about detainee welfare, movement, communication, behaviour, accommodation, food, clothing, water, security and environment’ (No Business in Abuse 2015, 6). Moreover, Transfield was permitted to use force against detainees, controlled their entry and exit, and ‘monitor[ed] the movement and location of all people on the Site’ (No Business in Abuse 2015, 6)

These details of the operation of the processing centre on Nauru, when set against the Australian Government's persistent claim that the Nauruan Government 'owns and administers' the centre under Nauruan law (Department of Immigration and Border Protection 2015), become implicated in questions about Australia’s use and abuse of the law of sovereignty. The Australian Department of Immigration's view on this question, which could not be clearer, has been expressed in some detail as part of an Australian Senate ‘Taking Responsibility’ Report into conditions on Nauru (Commonwealth of Australia 2015).

There are numerous, generally critical reports into the conditions in the two offshore processing centres. The 2015 ‘Taking Responsibility’ report, though, is centrally concerned with questions of responsibility and sovereignty. The Senate Committee's terms of reference required it to report on, 'the responsibilities of the Commonwealth Government in connection with the management and operation of the Regional Processing Centre in Nauru' (Commonwealth of Australia 2015, 1). As such, the Report directly raised the question of who is responsible for the Nauru Processing Centre. This question was raised even though the centre is on Nauruan territory and is (according to the terms of the MOU) administered by the Government of the Republic of Nauru. This question of responsibility for the centre was addressed by Michael Pezzullo, Secretary of the Department of Immigration, who presented evidence on behalf of the Government before the Senate Committee. Pezzullo stated:

The Australian government does not run the Nauru Regional Processing Centre, or RPC. It is managed by the government of Nauru, under Nauruan law, with support from the Australian government. The government of Nauru operates the RPC, assesses asylum claims and, where persons are found to be in need of protection, arranges settlement. The government of Nauru is specifically responsible for security and good order and the care and welfare of persons residing in the centre. On behalf of the Commonwealth, my department provides support services and advice, pursuant to an agreement between our two governments (Commonwealth of Australia 2015, 11).

In his evidence to the Australian Senate, Pezzullo discussed the 'issue' of sovereignty directly, asserting that the question of sovereignty was 'a matter of law,' and that for Australia to have sovereignty, what would be required is 'a treaty level transference of sovereignty, an abrogation on the part of the government of Nauru and an acquisition of sovereignty on the part of the Commonwealth of Australia' (Commonwealth of Australia 2015, 11).

In the Senate Committee's summary of their views and recommendations, the Committee stated that it believed 'that the Commonwealth must accept ultimate responsibility for conditions at the Centre, [and] commit to a clear plan for its future as part of genuine regional arrangements for dealing with irregular migration' (Commonwealth of Australia 2015, 120). The Committee conclusively found that the level of control exercised by the Government of Australia 'supports a strong argument that the primary obligation rests with Australia under international law for protecting the human rights of the asylum seekers' and that at a minimum the Australian Government held joint obligations with the Government of Nauru (Commonwealth of Australia 2015, 121).^[13] The Government’s line of argument, though, was held to be correct as a matter of law in the subsequent High Court of Australia decision, Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) (hereinafter M68).

In its submissions in the M68 matter, the Government directly expressed its view that it held no responsibility for the processing centre or Nauruan law or policy in relation to it. The plaintiff in the case was a Bangladeshi woman, M68, who was brought to Australia from Nauru for medical treatment; the case was linked to a 'series of challenges being run on behalf of more than 260 people who were brought to Australia for urgent medical treatment after suffering harm in offshore detention centres’ (Human Rights Law Centre 2016). M68’s challenge to the offshore detention regime on Nauru raised the question of whether the Australian Government was authorised under the Australian Constitution and Migration Act 1958 (Cth) to sign and give effect to the MOU with Nauru, and to secure, fund and participate in offshore detention. As part of this argument, the plaintiff claimed that the Government was not legally authorised to impose, enforce or procure restraints on the plaintiff's liberty, including her detention on Nauru. It was the Government's response to this argument — which the Court accepted — that is most relevant here. Rather than arguing that it (the Australian Government) was authorised to detain the plaintiff under Australian law, the Government 'consistently maintained the position that the detention of the plaintiff on Nauru was by the Executive government of Nauru' (Plaintiff M68/2015 v Minister for Immigration and Border Protection 2016, 7).

The High Court agreed with this argument in a majority decision of 6:1, finding that '[c]ontrary to the plaintiff's submissions, it is very much to the point that the restrictions applied to the plaintiff are to be regarded as the independent exercise of sovereign legislative and executive power by Nauru' (Plaintiff M68/2015 v Minister for Immigration and Border Protection 2016, 9 French CJ, Kiefel and Nettle JJ). The Court found that the Commonwealth 'participated' in the plaintiff's detention on Nauru but did not 'authorise or control' it, and to the extent that it did participate, this was authorised by a valid Commonwealth statute (Plaintiff M68/2015 v Minister for Immigration and Border Protection 2016, 11).^[14]

Beyond the brazen exploitation of Nauru’s sovereignty evident in such arguments, they are noteworthy because in holding up Nauruan statehood, the Pacific Solution contradicts far more common postcolonial constructions of Pacific states, as ‘failed’ or ‘in crisis’ in order to justify postcolonial economic, and at times territorial, intervention. More commonly, ‘in the geographic imaginary’ Australia constructs the region as a ‘development disaster,’ which ‘allows the continuation of the existing paternalism and neo-colonialist attitudes’ (Banks and McGregor 2011, 235). Under the Pacific Solution, such paternalism and neocolonial control of territory persists, but in this instance the Australian Government exercises control whilst upholding Nauru’s status as a self-governing and responsible Pacific state.

Conclusion

The Australian refugee policies of excision and offshore processing are, in one sense, acts of border control and regulation. They constitute a performance of the Australian state’s territorial integrity and sovereignty vis-à-vis ‘unauthorised’ refugee arrivals. This performance is best explained by Cynthia Weber’s conception of sovereignty as performative, whereby sovereignty is inferred from doing, practice and iteration (Weber 1995; 1998). Indeed, sovereign status (and responsibility) is not only iterative but the terms of what is normatively sovereign—and of each iteration—cannot be stabilised or naturalised. Indeed, under the Pacific Solution, Australian Government declares and affirms Nauru’s sovereignty even as it simultaneously denies and undermines Nauru’s ability to control the terms upon which offshore processing takes place on its soil and makes neocolonial use of Nauru’s territory and economic dependence. Here, apparent norms of (Nauru’s) sovereignty are undermined as its sovereignty declared and exploited.
In this chapter, I have traced the Australian Government's manipulation of the norms of sovereignty to avoid responsibility for its actions on Nauruan soil—actions that ultimately seek to affirm Australia's sovereign control of its own territory. By envisaging Nauru in the context of its colonial history, the Australian Government's use and abuse of the 'law' of sovereignty — and of Nauru's sovereignty in particular — is rendered continuous with Australia's imperial role in the region. The offshore processing centres ‘were agreed to by poor countries that were approached precisely because of their vulnerability and dependence upon Australia’ and ‘in so doing, Australian seignorage ... demand[ed] that the laws of those sovereign countries be placed in stasis’ (Rajaram 2003, 290).

‘Offshore’ processing relies on the use and abuse of postcolonial sovereignties in the Pacific, and raises questions about the very possibility and nature of sovereignty in a postcolonial context. The sovereignty performed by Australia – itself a postcolonial state – takes place on the territory of its sovereign, ‘offshore’ neighbours. As such, the ‘offshore’ in ‘offshore processing’ must be questioned and critiqued. Analyses of offshore processing must closely attend to Australia's colonial and postcolonial relationship with Nauru and interrogate the effects of the ‘Pacific Solution’ on the Pacific states, now held responsible for the ‘irregular’ asylum seekers expelled from Australian territory.

Bibliography

Afeef, Karin Fathimath (2006) ‘The Politics of Extraterritorial Processing: Offshore Asylum Policies in Europe and the Pacific.’ Working Paper No. 36. Refugee Studies Centre. University of Oxford.

Australian Associated Press (2001) ‘Howard Proposes Change to Australia’s Migration Zone,’ September 9.

Australian Government (2012) ‘Report of the Expert Panel on Asylum Seekers’, viewed 20 January 2016, http://artsonline.monash.edu.au/thebordercrossingobservatory/files/2015/03/expert_panel_on_asylum_seekers_full_report.pdf.

Banks, Glenn, and Andrew McGregor (2011) ‘Pacific ‘Solutions’ and Imaginaries: Reshaping Pacific Relations or Re-Colonising the ‘sea of Islands’?’ Asia Pacific Viewpoint 52 (3): 233–35.

Clennell, Andrew (2001) ‘Politicians Join Forces to Squeeze Boat People: Destination Nauru.’ Sydney Morning Herald, September 19.

Commonwealth of Australia (2014) ‘Incident at the Manus Island Detention Centre from 16 February to 18 February 2014.’ Canberra: Senate Legal and Constitutional Affairs References Committee.

——— (2015) ‘Taking Responsibility: Conditions and Circumstances at Australia’s Regional Processing Centre in Nauru.’ Canberra: Select Committee on the Recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru.

Dauvergne, Catherine (2008) Making People Illegal: What Globalization Means for Migration and Law. Cambridge: Cambridge University Press.

Davidson, James W. (1968) ‘The Republic of Nauru’. The Journal of Pacific History 3 (1): 145–50.

Department of Immigration and Border Protection (2015) ‘Submission 31 to Taking Responsibility: Conditions and Circumstances at Australia’s Regional Processing Centre in Nauru Report.’ Canberra: Select Committee on the Recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru.

——— (2016) ‘Immigration Detention and Community Statistics: Summary’, viewed 2 February 2016, http://www.border.gov.au/ReportsandPublications/Documents/statistics/immigration-detention-statistics-31-jan-2016.pdf.

Foster, Michelle, and Jason Pobjoy (2011) ‘A Failed Case of Legal Exceptionalism? Refugee Status Determination in Australia’s ‘Excised’ Territory.’ International Journal of Refugee Law 23 (4): 583-631.

Goodwin-Gill, Guy S., and Jane McAdam (2007) The Refugee in International Law. 3rd ed. Oxford: Oxford University Press.

Grewcock, Michael (2009) Border Crimes: Australia’s War on Illicit Migrants. Sydney: Institute of Criminology Press.

Hughes, Helen (1964) ‘The Political Economy of Nauru'. Economic Record 40 (92): 508-534.

———(2004) ‘From Riches to Rags: What Are Nauru’s Options and How Can Australia Help? Issue Analysis Series. Centre for Independent Studies.

Human Rights Law Centre (2016) ‘Families Fear Imminent Deportation as High Court Confirms Government’s Nauru Arrangements Do Not Breach Australian Domestic Law,’ February 3, viewed 17 March 2016, http://hrlc.org.au/families-fear-imminent-deportation-as-high-court-confirms-governments-nauru-arrangements-do-not-breach-australian-domestic-law/.

Hyndman, Jennifer, and Alison Mountz (2008) ‘Another Brick in the Wall? Neo-Refoulement and the Externalization of Asylum by Australia and Europe’. Government and Opposition 43 (2): 249–69.

Kesby, Alison (2007) ‘The Shifting and Multiple Border and International Law’. Oxford Journal of Legal Studies 27 (1): 101–19.

Kneebone, Susan (2006) ‘The Pacific Plan: The Provision of ‘Effective Protection’?’ International Journal of Refugee Law 18 (3-4): 696–721.

Law Council of Australia (2015) ‘Submission 57 to Taking Responsibility: Conditions and Circumstances at Australia’s Regional Processing Centre in Nauru Report.’ Canberra: Select Committee on the Recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru.

Leslie, Michael W. (1990) ‘International Fiduciary Duty: Australia’s Trusteeship over Nauru.’ Boston University International Law Journal 8 (3): 397.

Manne, Robert, and David Corlett (2004) ‘Sending Them Home: Refugees and the New Politics of Indifference’. Quarterly Essay 13: 1.

Mathew, Penelope (2002) ‘Australian Refugee Protection in the Wake of the Tampa.’ The American Journal of International Law 96 (3): 661–76.

McNevin, Anne (2010) ‘Border Policing and Sovereign Terrain: The Spatial Framing of Unwanted Migration in Melbourne and Australia’. Globalizations 7 (3): 407–19.

Migration Act 1958 (Cth) (Australia)

Migration Legislation Amendment (Regional Processing and other measures) Act 2012 (Cth) (Australia)

Moss, Phillip (2015) 'Review into Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’. Department of Immigration and Border Protection, viewed 25 December 2015, https://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/review-conditions-circumstances-nauru.pdf.

No Business in Abuse (2015) ‘Transfield’s Complicity in Gross Human Rights Abuses within Australia’s Offshore Detention Regime’, viewed 12 January 2016, https://d68ej2dhhub09.cloudfront.net/1321-NBIA_Report-20Nov2015b.pdf.

Opeskin, Brian, and Daniel Ghezelbash (2016) ‘Australian Refugee Policy and Its Impacts on Pacific Island Countries’. Journal of Pacific Studies 36: forthcoming.

Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) HCA 1.

Rajaram, Prem Kumar (2003) ‘‘Making Place’: The ‘Pacific Solution’ and Australian Emplacement in the Pacific and on Refugee Bodies.’ Singapore Journal of Tropical Geography 24 (3): 290–306.

Republic of Nauru and Commonwealth of Australia (2012) ‘Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru and Related Issues.’ Intergovernmental Agreement.

——— (2013) ‘Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru and Related Issues.’ Intergovernmental Agreement.

Sassen, Saskia (1996) Losing Control?: Sovereignty in the Age of Globalization. New York: Columbia University Press.

Tabucanon, Gil Marvel, and Brian Opeskin (2011) ‘The Resettlement of Nauruans in Australia: An Early Case of Failed Environmental Migration’. The Journal of Pacific History 46 (3): 337–56.

Taylor, Savitri (2005) ‘The Pacific Solution or a Pacific Nightmare: The Difference between Burden Shifting and Responsibility Sharing’. Asian-Pacific Law & Policy Journal 6 (1): 1–43.

Teaiwa, Katerina (2015) ‘Ruining Pacific Islands: Australia’s Phosphate Imperialism.’ Australian Historical Studies 46 (3): 374–91.

The Economist (2001) ‘Paradise Well and Truly Lost,’ December 20, viewed 19 January 2016, http://www.economist.com/node/884045.

Thompson, Roger C (1980) Australian Imperialism in the Pacific: The Expansionist Era, 1820-1920. Melbourne: Melbourne University Press.

Trusteeship Agreement for the Territory of Nauru. 1947. 10 UNTS 3 (signed and Entered into Force 1 Nov. 1947).

Vogl, Anthea (2015) ‘Over the Borderline: A Critical Inquiry into the Geography of Territorial Excision and the Securitisation of the Australian Border.’ University of New South Wales Law Journal 38 (1): 114–45.

Ware, Helen, Melissa Phillips, Sandy Gifford, Savitri Taylor, Sharon Pickering, and Stephen Castles (2012) ‘Saving Lives at Sea: The Asylum Seeker Expert Panel Reports’. The Conversation, April 10, viewed 2 March 2016, http://theconversation.com/saving-lives-at-sea-the-asylum-seeker-expert-panel-reports-8601.

Watson, Jini Kim (2015) ‘From Pacific Way to Pacific Solution: Sovereignty and Dependence in Oceanic Literature’. Australian Humanities Review 58: 29–49.

Weber, Cynthia (1995) Simulating Sovereignty: Intervention, the State and Symbolic Exchange. Cambridge: Cambridge University Press.

——— (1998) ‘Performative States.’ Millennium; Journal of International Studies 27 (1): 77–95.

Weeramantry, Christopher G (1992) Nauru: Environmental Damage under International Trusteeship. Oxford: Oxford University Press.

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^[1] Including the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Border Protection (Validation and Enforcement Powers) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth); Migration Legislation Amendment Act (No 1) 2001 (Cth); Migration Legislation Amendment Act (No 5) 2001 (Cth); Migration Legislation Amendment Act (No 6) 2001 (Cth).
^[2] The migration zone was defined as ‘the area consisting of the States, the Territories, Australian resource installations and Australian sea installations’ and also included Australia’s territorial waters: Migration Act s 5(1) (definition of ‘migration zone’). The question of the legality of the redefinition of sovereign territory under international law, although not the focus of this piece, has been considered in other contexts: see, eg Kesby (2007). For a general discussion of the duty under international law of non-refoulement or non-return of asylum seekers who reach a state’s sovereign territory see Goodwin-Gill and McAdam (2007).
^[3] Migration Act s 14(1).
^[4] Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) sch 1 item 3, inserting Migration Act s 5(1) (definition of ‘offshore entry person’).
^[5] Migration Amendment (Excision from Migration Zone) Act 2001 (Cth), sch 1 item 4, inserting Migration Act s 46A. Note, the terminology ‘offshore entry person’ was replaced with ‘unauthorised maritime arrival’ in 2013 by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth).
^[6] Migration Act ss 46A, 494AA(1)(b), (c), (e).
^[7] Of the roughly 1200 Nauruan deported to forced labour, only 737 survived the labour camps and starvation (Hughes 2004, 2).
^[8] Tabucanon and Opeskin record that those arrangements required the Commissioners to sell Nauruan phosphate to the partner countries at cost, which was ‘only one-third to one-half of the market price of similar grade phosphate mined at Makatea in French Polynesia.’(Tabucanon and Opeskin 2011, 343)
^[9] Tabucanon and Opeskin document a minute from the Secretary of the Department of Territories to his Minister in 1953, which expressed that ‘the solution to the Nauruan resettlement problem lies not in finding another island Nauru to which they could be transferred as an entire community, but in steadily educating them to the stage where they can fit into the economic and social life of Australian Territories, after the European manner' (Tabucanon and Opeskin 2011, 351; see also Weeramantry 1992).
^[10] For example, one Australian financial adviser persuaded Nauru to invest $2m in a musical he had written about the life of Leonardo da Vinci, which folded after four weeks in London ((The Economist 2001).
^[11] In 1989 Nauru took Australia to the International Court of Justice, claiming that Australia had underpaid Nauru in relation to the (limited) royalties that were owed in relation to phosphate mined prior to independence in 1968, and also claiming compensation for devastation of Nauruan land. The Australian Government settled the claim out of court in 1993 for $AU50 million over 20 years, a fraction of the sum the Republic of Nauru claimed was owed (Taylor 2005, 20).
^[12] In 2014, Transfield Services rebranded as Broadspectrum Limited, which at the time of writing is the company running the Processing Centres in both Papua New Guinea and on Nauru through a subcontract with Wilson, an Australian security services company.
^[13] This is not the first time a Senate Committee has made such a finding in Australia (Commonwealth of Australia 2014, 151).
^[14] As well, the Court held that the Government's actions in signing the MOU were supported under a valid law of the Commonwealth.