The internal border: New South Wales Police—‘getting rid’ of problem people

Unlike the United States, where recent steps to involve local police in immigration enforcement have provoked major controversy (Provine and Sanchez 2011), and in contrast to Britain, where police have been involved in immigration enforcement somewhat sporadically and sometimes reluctantly (Weber and Bowling 2004), Australian police are deeply embedded in the enforcement of immigration controls. State and federal police are ‘designated officers’ under the Migration Act 1958, which means that they are legally mandated to exercise all the powers of an immigration officer. In practice, police limit their exercise of Migration Act powers to section 188, which authorizes them to question suspected non-citizens about their immigration status, and section 189, which requires them to take suspected ‘unlawful non citizens’ into custody. Research by one of the authors has established that New South Wales police conduct opportunistic immigration checks in the context of traffic stops and proactive street-level policing; make behind-the-scenes checks during criminal investigations; take part in joint operations with the DIAC and other agencies in which the detection of unlawful non-citizens is a possible outcome; assist immigration officers in the execution of‘high risk’ search or arrest warrants; and provide escort services for forced departures when off duty (Weber 2011).

In a survey of 371 operational officers conducted in 2008-2009 virtually all (96 per cent) identified the enforcement of immigration law as being important to their job (Weber 2012). On the other hand, it was clear from interviews that while rank-and- file police identified with their migration policing role, the detection of unlawful noncitizens was far from being an organizational priority: ‘It’s not, as I say, promoted, it’s not stressed that we need to rigorously enforce the immigration laws. I’d suggest it’s more a by-product of our day-to-day operational activities’ (Interview 23, NSW Police Local Area Commander). Immigration powers were seen as a useful tool in the pursuit of the traditional policing goals of criminal prosecution and order maintenance. Checking immigration status could assist with the confirmation of identity during street stops, so that warrants could then be checked or on-the-spot fines issued to the correct name and address. Immigration checks were also used in criminal investigations where they could yield evidence about the whereabouts of suspects, or open up alternative avenues to ‘get rid’ of individuals who were found to be unlawfully present where the criminal matter was considered minor or difficult to prosecute.

Operational police who took part in the survey were asked whether they thought that the time they spent on immigration enforcement had increased, decreased, or stayed the same during their time with the NSW Police. While the most common answer was that it was about the same, officers with more than 20 years’ experience were by far the most likely to say it had increased—54 per cent compared with12.5 per cent of officers with less than five years’ policing experience. Senior officers suggested in interviews that, while migration policing was still far from an operational priority for NSW Police, increased training by the DIAC in Migration Act powers and the development of mechanisms for inter-agency data exchange were beginning to raise the profile of immigration enforcement: [1]

One of the ‘vast range of things’ open to police is to refer lawfully present noncitizens with criminal records to the DIAC for possible visa cancellation under section 501 of the Migration Act. Interviews with DIAC liaison officers posted within NSW Police suggested that awareness of this possibility was growing: ‘I think that most police officers are very aware of the 501 cancellation power, and they are very quick to call and ... ask about the possibility of a visa being cancelled’ (Interview 51, Sydney DIAC). While this entrepreneurial strategy aligns with government priorities for the removal of‘high risk’ individuals, it appears to be driven by relatively independent operational policing objectives.

Because of the longstanding involvement of Australian police in the enforcement of immigration law, it may seem difficult to mount an argument that the role of police has been distorted by the rising political emphasis on migration controls. However, discussions with senior police revealed submerged concerns about the public relations impact of these activities. The most outspoken commander, responsible for a very culturally diverse area, observed that ‘immigration officials should perhaps be doing a lot of that stuff themselves. But it is left to the police to do because there is an image problem associated with chasing Johnny through five blocks of units and crash tackling Johnny to the floor’ (Interview 6, NSW Police Local Area Commander). In fact, following the death in Sydney of Seong Ho Kang, who ran from DIAC compliance officers during a workplace raid in 2004 and was struck by a taxi, the DIAC appears to be knowingly passing responsibility for the use of force onto police:

It is our department’s policy that we do not pursue people and part of the reason for that is if a person is running they tend to run somewhat blindly and we don’t want to chase them into a situation of danger ... So for example we won’t chase—the police generally may. (Interview 47, Canberra DIAC)

Proposition 3: Other Agencies are Being Drawn into Migration Policing Networks The external border: the Royal Australian Navy and Australian Customs

There has been heated political debate about irregular maritime arrivals in Australia. An often overlooked aspect of this debate is the nature and roles of unrelated agencies being drawn into migration policing networks. In this instance we are concerned with the ways national security agencies are increasingly being tasked with ‘migration management’ functions that intersect in complex ways with programs of interdiction and rescue. Border protection is a key plank in national security efforts. The Royal Australian Navy (RAN) and Australian Customs have been drawn into the immigration policing function of border protection. This has consequences for their perceived role and in their relationship with the executive and the ‘exceptional’ politics of border protection.

National security on the edges of the territorial nation state is the typical remit of the RAN; however, its role in the politicization of irregular arrivals/asylum seekers has seen it drawn into the migration field with unwanted and unintended consequences. In October 2001 HMAS Adelaide intercepted an Indonesian fishing boat north of Christmas Island as part of Operation Relex aimed at deterring irregular maritime arrivals. When the 223 passengers were disembarked on Christmas Island a report emerged of a conversation between the Commander of HMAS Adelaide and Brigadier Mike Silverstone that a child had been thrown overboard. Prime Minister John Howard and senior ministers seized on this information and released to the media a photograph allegedly showing children being thrown overboard. Photographs had been taken by Navy personnel showing the rescue of asylum seekers and Navy personnel caring for asylum seekers on board, including dressing them in Navy overalls. The photographs showed a very humanitarian aspect of their work and were obviously taken with pride in a job well done. These photographs were transmitted to the Executive whereby the captions were removed, and photographs were selected and misused to represent children being thrown overboard. Within days the Navy made clear that no children had been thrown overboard but were in the water because their boat was sinking. By this time, however, this maritime incident (or ‘children overboard affair’ as it came to be known) was receiving unprecedented national coverage and was used as a lightning rod to rally anti-refugee sentiment.

The Senate Inquiry convened to investigate the matter found that the government failed to alter the public record when information contravening the initial report came to light and that the Minister of Defence had misled the public. However, one of the ongoing reverberations was the assessment of the incident as unnecessarily politicizing the role of the Navy in relation to intercepting asylum seekers. Of concern was the executive direction to the Navy not to speak publically about the issue during the 2001 Federal Election campaign when anti-asylum seeker sentiment was at a peak. In the month following the incident, a psychiatrist who had been recently tasked to a Navy vessel wrote an open letter to the Sydney Morning Herald concerned at the impact of deterrence operations on Navy personnel. He said:

These actions are ineffective in deterring people in coming to Australia and merely serve to harass, frighten and demoralise people who are already weak, vulnerable and desperate ... It is my expert opinion, as a senior consultant psychiatrist to the Royal Australian Navy, that they are highly likely to be harmful to the psychological health and moral development of all [RAN] members involved . Nearly everyone I spoke to that was involved in these operations knew that what they were doing was wrong. (Leys 2001)

Australian Customs manage the ‘security and integrity’ of Australia’s borders. The maritime environment for their migration concern stems from their patrol of Australia’s 36,000 km coastline and the Australian Exclusive Economic Zone. In 2008 the Australian Customs service was renamed the Australian Customs and Border Protection Service. This move was said to be:

[in] response to the resurgent threat to our borders of maritime people smuggling. The enhanced Australian Customs and Border Protection Service is set to meet the complex border security challenges of the future by providing unified control and direction, and a single point of accountability. (Customs and Border Protection 2012)

The new arrangements expanded the role of Customs and absorbed a number of functions and resources from the Department of Immigration and Citizenship including ‘analysing and coordinating the gathering of intelligence, coordinating surveillance and on-water response, and engaging internationally to deter maritime people smugglers’ (Customs and Border Protection 2012).

What are not clearly articulated are the daily realities of this expanded border control function. In other research we have undertaken this lead role in border protection has meant that maritime enforcement officers operating Customs boats off the Australian north-west coast are expected to perform new and unanticipated roles. This creates tensions between enforcement and rescue responsibilities and managing intercepted populations on board Customs vessels—populations that have often been traumatized and are in the midst of highly stressful, forced migration, including interactions with people-smugglers. Primarily, however, the concern with drawing Customs into this realm is with the politicization of their function and role in this field as compared with the historically less ambiguous tasks centred on the importation of drugs and illegal firearms:

And they’re actually taking it to another level now, where we’re just solely doing immigration. Because where I’ve been, we’ve been solely doing immigration, whereas we were doing fisheries and what not before, but now they were not really trained in what they actually want us to do. (Interview 18 with Customs official, Darwin)

The key issue with the migration function of Customs (and border protection) in the maritime zone is the complication of the humanitarian aspect of intercepting and protecting asylum seekers. While Customs have always been concerned with the movement of people and goods across borders, they have not historically had a role in relation to the management of those forced to cross borders for reasons of persecution and triggering Australia's international protection obligations under the Refugee Convention. Both Customs and the RAN are agencies reluctantly involved in responding to refugees in the maritime environment and stand in some contrast to the more institutional entrepreneurial activity of the AFP.

  • [1] think it is becoming more prevalent. I think people are more aware of the vast range ofthings open to them. I think police are more aware of immigration offences. I think peopleare more aware of visa violations, all of which are federal law; however, they may well have ahuge impact on state policing. (Interview 40, NSW Police HQ)
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