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Border terror: policing, forcedmigration and terrorismSharon Pickering a

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Global Change, Peace & Security, Volume 16, Number 3, October 2004

Border Terror: Policing, Forced Migrationand Terrorism

SHARON PICKERING(Monash University)

The symbiotic relationship between refugees and the police is increasing around key zonesof global exclusion: the US/Mexico border, the European Union and the Southeast Asian/Australasian rim. 1 Examining these relationships uncovers the contradictory yet stunted deployment of sovereignty-led responses of the Global North to refugees, particu-larly those responses that cluster around the frontier, marking and patrolling the border. Moreover, the police/refugee relationship and the discourses underpinning it have prepared the way for problematic constructions of, and responses to, terrorism as it is patrolled at the border. Refugees are not just a problem, but a policing problem. Terrorism is not a problem, but a counter-terrorism policing problem. Increasingly the securitisation of borders explicitly and implicitly conates these two ‘policing’ problems. This article willexamine the discursive resources underpinning border-policing efforts against refugees and terrorism, and the repercussions for the law enforcement apparatus. In the case of Australia, it will argue that the border-policing effort has become a site for the recraftingof federal law enforcement with signicant consequences for regional governance as policing becomes unshackled from territory and merged with military functions. In making

this argument in relation to Australia within the Southeast Asian region, the article will alsodraw on evidence from Europe and North America.

Border Criminology: International Relations, Policing and SecurityThe nation-state, incapable of providing a law for those who had lost the protection of anational government, transferred the whole matter to the police. This was the rst time thepolice in Western Europe had received authority to act on its own, to rule directly over people;in one sphere of public life it was no longer an instrument to carry out and enforce the law,but had become a ruling authority independent of government and ministries. Its strength andits emancipation from law and government grew in direct proportion to the inux of refugees. 2

The border has become a site of increased focus for criminological research concerned withthe transnationalisation of crime, particularly the (illegal) movement of goods and peoplesacross national boundaries. The growing criminological literature on globalisation, transna-tionalisation and securitisation points to the inherent contradictions in the governance of crime and (in)security 3 as well as opening up vast transnational spaces for the applicationof criminological knowledge. Emerging from this literature are two, not necessarilymutually exclusive, criminological approaches to areas often considered more the remit of political science generally and international relations (IR) specically. On the one hand,there has been the application of existing criminological knowledge to a larger arena of

1 Penny Green and Mike Grewcock, ‘The War against Illegal Immigration: State Crime and the Construction of a European Identity’, Current Issues in Criminal Justice , 14,1 (2002), pp. 87–101.

2 Hannah Arendt, The Origins of Totalitarianism (San Diego: Harcourt, 1966), pp. 287–288.3 Adam Crawford (ed.), Crime and Insecurity: The Governance of Safety in Europe (Cullompton, Devon:

Willan, 2002).

ISSN 1478-1158 print/ISSN 1478-1166 online/04/030211-16 © 2004 Taylor & Francis LtdDOI: 10.1080/0951274042000263753

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study that goes beyond the traditional domestic realm of criminological inquiry (forexample, areas such as ‘illegal immigration’, cybercrime, and drug trafcking), and theexamination of the capacities of domestic criminal justice systems and developing inter-national justice systems to respond to these various border breaches. In this literature theborder is inevitably seen as a xed and immutable characteristic of justice systems that are

compelled to respond in more totalising ways.On the other hand, there is a literature that takes a broader approach, one that potentiallytransforms criminological approaches to the study of crime, order and control through amore interdisciplinary study of the construction and maintenance of borders, particularlydrawing on international relations literature. This literature moves from a position of understanding the border as xed to understanding the border as spatially and temporallyproduced and circulated, 4 processes in which policing plays a core role. Not only is the stateunderstood as being constituted by violence, but it is maintained through violent boundaryinscription practices. State borders are no longer considered lines on a map but spaces of both legitimate and illegitimate state behaviour that simultaneously yield order andviolence. 5 Such crimino-international-relations approaches also engage the policing functionwith the burgeoning literature on the reconceptualisation of sovereignty. In the simplestsense this means criminological accounts of the border can no longer simply allude to theissue of sovereignty but must recongure analyses of policing in terms of the performativityof the state and practices of statecraft. More particularly criminological and internationalrelations share a concern about border policing the sovereign state and the role borders haveplayed in the construction of crime/security threats and the police/military response.

Moreover, a focus on policing efforts against refugees and terrorism evidences theconation of crime and national security concerns. As noted by Andreas and Price, 6 sucha conation has signicant consequences for the expansion of national security issues intotraditionally internal policing domains, and the utilisation of external military apparatus fornon-war functions involving international policing tasks. Of course, such a conation hasbeen commonplace for extended periods in conict zones such as Northern Ireland,Israel-Palestine and South Africa but is relatively novel in contemporary Anglo-Americandemocracies. 7 The reconguration of the coercive apparatus of the state disturbs not onlythe boundaries between the disciplines of criminology and IR but also the divisions madeat the creation of the modern nation state between policing and military functions which areusually held as a core tenet of democracy. The state monopoly on the use of force cannotbe understood as an exception to the forces of globalisation and a bastion of the territorialsovereign state, but rather as a complex example of the reinvention of the state itself andits performance to both internal and external audiences.

Border Policing: The Refugee

The argument pursued in this section is straightforward—that the border-policing effortmade against the refugee is a political performance impossible to measure in instrumentalistterms, but with massive political and material benets for federal policing apparatus and

4 Richard Devetak, ‘Postmodernism’, in Scott Burchill, Richard Devetak, Andrew Linklater, Matthew Paterson,Chris Reus-Smit and J. True (eds), Theories of International Relations (New York: Palgrave, 2001).

5 See Sharon Pickering, State Crime Refugee (Sydney: Institute of Criminology Monograph Series/FederationPress, forthcoming).

6 Peter Andreas and Richard Price, ‘From War-Fighting to Crime-Fighting: Transforming the American NationalSecurity State’, International Studies Review , 3,3 (2001).

7 Jude McCulloch, Blue Army (Melbourne: Melbourne University Press, 2001).

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disastrous consequences for both the state of asylum and the individual asylum seeker. Thispaper rst outlines the predominant assumptions and discourses underpinning the border-policing performance against the refugee which are discernible across three exclusionzones: the external European Union border, the US/Mexico border and the Australasia/ Southeast Asia rim. Further, the paper utilises a case study of the border-policing effortinvolving the Australian Federal Police (AFP).

The movement of refugees across borders has contributed to growing anxieties that havedirectly contributed to heightened border policing. 8 Those anxieties have been sculpted bydiscourses of deviance in media and other popular representations of refugees. 9 Pickeringhas argued previously that refugees have been routinely represented as a ‘deviant’population in relation to the integrity of the nation state and to race and disease. Suchdeviance is underpinned by a language and politics of exclusion whereby the deviance of refugees has come to be regarded as common sense. Refugees have not only beenconsidered criminal (‘illegal immigrants’) but security risks to the maintenance of territorialborders—those same borders that are globally fading in relation to the transfer of information, goods and the movement of individuals from wealthy nations. Consequentlyrefugees have routinely been represented as embodying a threat to national security, whichresearch indicates contributes to the validation and invocation of repressive state re-sponses. 10 Refugees plan to ‘invade’, are ‘gathering’ to Australia’s north; they make‘incursions’ and make ‘sustained assaults’ on Australia’s shores to which the governmentmust respond with ‘defence plans’ that include putting international treaties ‘on hold’,closing immigration routes and undertaking ‘hunts’ for ‘boatpeople’. 11

Signicantly immigration and criminal discourses have been enmeshed with discourseabout the tactics of war. ‘War’ has been common parlance in relation to the ‘war on drugs’and ‘war on crime’ popularised across Anglo-American nations. 12 The notorious metaphorof war demarcates the possibilities relating to refugees—a war is only ever won or lost and

requires clear boundaries to be drawn. In this case boundaries are simply those of theterritorial nation state. There are only two sides and only one is able to maintain therighteousness of their cause and the legitimacy of their resort to violence. Immigrationcontrol becomes a matter of national security that requires (legitimates) violent responsesin which locating and repressing that security threat become a major preoccupation.Understanding nationhood is restricted where alternative voices become voices against thenation while concepts such as ‘nation’ and ‘borders’ remain uncontested. Biologicallygenerated and socially constructed understandings of race routinely inform the criminal andsecurity threat that refugees present to the Global North. Research suggests that the‘inherent’ deviancy of refugees represented in the media and the implied need for

deterrence are heavily encoded in assumptions about race,13

particularly in relation to Islamand those eeing the Middle East.These discourses of refugee criminality, and increasingly security, have informed the

development of the border policing lexicon—commonly referred to in Australia as ‘borderprotection’. Importantly, the border-policing lexicon has shifted discourses of deviancyfrom being a matter of individual refugee deviancy to a matter of organised crime(particularly through the people smuggler). ‘Refugee deviancy’ is no longer simply a

8 Peter Andreas, Border Games: Policing the US–Mexico Divide (Ithaca, NY: Cornell University Press, 2000).9 Sharon Pickering, ‘Common Sense and Original Deviancy: News Discourses and Asylum Seekers in

Australia’, Journal of Refugee Studies , 14,2 (2001), pp. 169–186.10 Pickering, ‘Common Sense and Original Deviancy’.11 For a detailed analysis see Pickering, ‘Common Sense and Original Deviancy’.12 Alison Young, Imagining Crime (London: Sage, 1996).13 Pickering, ‘Common Sense and Original Deviancy’, p. 178.

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law-and-order issue but a matter of transnational organised crime. While border policing inAustralia is carried out by a range of agencies (discussed below), this paper will focus onthe role of the Australian Federal Police. In routinely using the terms ‘people smuggler’,‘illegal entrant’ and ‘illegal non-citizen’ to refer to refugees, the AFP ascribes illegality tothe presence of the refugee, a presence that remains legal under international law. 14

Moreover, the border-policing lexicon has historically relied on conating issues of ‘illegalimmigration’ with organised crimes such as ‘drug trafcking’ and ‘credit card fraud’ thatfocus on the ‘illegal’ economies of people movement, and more contemporarily withnational security issues that locate such ‘illegal economies’ as militarily concerns.

Organised crime amasses signicant reserves of undeclared and untaxed wealth to rival theeconomies of small countries and threatens not only the rule of law but the very primacy of the state. Thus traditional precepts as to what distinguishes or separates national security,military and law and order threats are themselves under challenge by global events. There isno greater imperative, therefore, in ensuring the security and integrity of Australia than tomaintain law enforcement on the same plane of importance and relative capability as thenation’s defence forces. 15

In reafrming the centrality of the state, law enforcement becomes interchangeable withreinforcing borders. However, law enforcement is seen as responding to the refugee as asecurity threat rather than the policing effort actively contributing to its construction as asecurity threat. Such discourses have facilitated the transferral of border policing from whatAndreas describes as ‘low politics’ to ‘high politics’, particularly as discourses of refugeedeviancy have moved from that of a criminal threat to that of a security threat. Burke hasargued that security’s claim to be a universal need and desire makes it compelling. 16

Security, Burke notes, is a monological narrative, widely considered a predetermined andpermanent constituent, disallowing the critique of policies except in narrow terms: ‘Securityclaims to be universal, but lacks universal meaning. It claims to be a fundamental societal

value, but draws up exclusive and violent divisions between society and its others.’17

Therefugee, once made the focus of the border policing effort, is now to be dealt with as amatter of national security. No longer just a matter of the security of borders, or for anorderly immigration programme, but for the security of all citizens.

Border Policing and Forced Migration

Discourses of border policing are based on awed understandings of forced migration,understandings that consider forced migration a crisis for the borders of the Global North.The various criminal and security risks that are constructed by the arrival of the refugeehave been underscored by discourses that assume the irregularity of refugee movement—something outside the ordinary bounds of migration and acceptable movement of peoples,to signal coming oods of migrants, even invasions. According to Sassen, forced migrationand the more generalised ‘irregular’ migration are embedded in complex economic, socialand ethnic networks. Irregular migration is not a ‘free for all’ but rather represents whatSassen has called a management problem rather than a crisis. 18 Commentating from withinstudies of globalisation, Sassen suggests that while there remain many differences between

14 See the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol for the Convention Relatingto the Status of Refugees.

15 Australian Federal Police, Australian Federal Police Annual Report 1998–1999 (Sydney, 1998–1999).16 Anthony Burke, In Fear of Security: Australia’s Invasion Anxiety (Annandale, NSW: Pluto Press, 2001), p.

xxix.17 Burke, In Fear of Security , p. xxx.18 Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University

Press, 1996), p. 68.

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the immigration policies of developed nations, there is a growing convergence in the wayimmigration policies are rooted within a ‘common set of conceptions about national bordersand the role of the state’. 19 Such convergence takes place in a moment when traditionalimmigration policies are considered ineffective and pan-national and regional approaches toimmigration policy are taking shape, particularly in Europe. Sassen notes that the keyelements in this fundamental framework are:

(1) the sovereignty of the state and border control as the heart of the regulatory effort (whetheron land or at airports or consulates in sending countries); and (2) an understanding of immigration as the consequence of emigrants’ individual actions (the receiving country is takenas a passive agent, one not implicated in the process). Refugee policy, in contrast recognizesadditional factors as leading to outows. The framework for immigration singles out the borderand the individual as the sites for regulatory enforcement. 20

Upon these awed understandings of forced migration, the condition of the refugee is nolonger a humanitarian problem (let alone a human rights issue) but a law enforcement andnational security problem. In the traditional sense of the border these awed understandings

of forced migration inform a border-policing effort that has revolved around increasedphysical barriers and increasing reliance on technology. In the case of Australia, however,the border policing effort has never been able to rely on the fortication of a simple landborder. Instead border policing has widened into what may be considered border spaces thatare not primarily dened by territory and are increasingly mapped by deterritorialisedpolicies of deterrence. 21 Under deterrence (il)logic, the border spaces become both internaland external to territorial Australia (for example, immigration detention centres, the ‘PacicSolution’ and locating policing agents in ‘sending’ and ‘transit’ countries such as Iran andIndonesia). Understanding forced migration as ‘illegal movement’ and a matter of (poor)individual ‘choice’ on the part of the ‘illegal immigrant’ informs discourses of deterrence.

Deterrence is a familiar rhetoric for criminal justice related functions, where it has beenconsidered a central tenet of crime and punishment. Applied to refugees, discourses of deterrence have emerged from discourses of refugee deviance and draw on the familiarsounds and understandings of the ‘need’ to punish.

Importantly discourses of deviance rest on implicit and explicit messages of who orwhat is to be deterred and what they are to be deterred from doing/achieving. In the rstinstance, deterring refugees in the Australian context has been primarily about race andmore particularly has come to be about those of Middle Eastern origin and Muslim faith.When deterrence is the narrative, it is almost always the Muslim Arab that is thecontemporary focus. Race inects all elements of deterrence because it is only particularraces that are forced onto boats to seek onshore asylum in Australia. The boats are largelyfull of Iraqis, Afghans, Iranians and lately Kurds and the public rhetoric of deterrencepolicy is aimed exclusively at them. Second, deterrence is about maintaining and develop-ing the ction of the homogeneous bordered state. Deterrence, by necessity, rests onnarratives of a closed, xed state against which deviations may be recognised and repelled.

Once this xed state is recognised, there is indeed a range of forms deterrence maytake—from the more gentle ‘discourage’ to the harshness of repulsion. The act of reassuringthe enclosed, controlled nation state is the ction required to reassure the role of the statein the transformation of international and transnational arrangements. It also concerns thedeployment of identity politics when the nation state confronts the lived realities of

19 Sassen, Losing Control? , p. 69.20 Sassen, Losing Control? , p. 69.21 Sharon Pickering and Caroline Lambert, ‘Deterrence: Australia’s Refugee Policy’, Current Issues in Criminal

Justice , 14,1 (2002), pp. 65–86.

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difference and the importance of borders in human communities. At the intersections of cultural, racial, political and territorial boundaries, discussions of refugees and the border-policing effort take shape. While these intersections are shifting and unpredictable, they areoften represented as constituting a stable state of being that reafrms the need for stableterritorial borders. The crises of (racial, cultural and legal) borders are considered conse-quential to the ‘integrity’ of the immigration system and the ‘integrity’ of the nation. Millerand Hashmi note,

The principle is that everyone who resides permanently in the territory should share a commonnational identity, and that this identity should override other characteristics that might causesocial boundaries to be drawn differently, whether within the state or between states. Sonationality is to take precedence. 22

But therein lies the contradiction—the external border must be maintained and reinforcedin order to deter external borders/fractures from manifesting internally. There is a crisis inAustralia in as much as the territorial nation state does not map onto the cultural, racial,political or legal nation state. 23 Bigo has described this as a coming to the ‘limits of our

political imagination’.24

Mapping the social onto the territorial has been a distinctive featureof the modern state: converging social and territorial boundaries. 25 Deterrence rationalesforce this convergence after its potential has dissipated and consequently deterrence is nowmade possible only through a coercive border imagination.

Discourses of deterrence render the law enforcement effort less interested in instrumen-tal gains than symbolic messages. Border policing becomes an act of impression manage-ment:

policing methods that are suboptimal from the perspective of a means–ends calculus of deterrence can be optimal from the political perspective of constructing an image of stateauthority and communicating moral resolve … For those state actors charged with the task of

managing the border, the way their actions shape the perceptions of the audience … ultimatelymatter more than whether or not the illegal border crossers are actually deterred. In fact, thefeedback effects from some of the most popular parts of the law enforcement performance canactually create a more formidable control problem. 26

Taken collectively, the discourses outlined above inform a border-policing effort that isincreasingly dislocated from either domestic or international expressions of the rule of law,and is invested in merged and open-ended policing jurisdiction and policing functionsdescribed in amorphous terms such as ‘deterring’ and ‘disrupting’ people-smugglingactivities. For example, in the case of Australia, the AFP (historically a much malignedforce) has redened its remit, in signicant portion, to policing out the refugee. There is no

clearer or greater beneciary in the construction of people smuggling as a matter of ‘transnational crime’ threatening ‘national security’ than the Australian Federal Police. TheAFP, as the commonwealth law enforcement agency, is now positioned as a key player inthe prevention, deterrence and disruption of people smuggling. As recently as 1996–1997it showed no interest in the area of people smuggling. 27 However, the AFP now hassignicant sway over the ways that refugee policy is conceived and realised. It was to share

22 David Miller and Sohail Hashmi, ‘Introduction’, in D. Miller and S. Hashmi (eds), Boundaries and Justice: Diverse Ethical Perspectives (Princeton: Princeton University Press, 2001).

23 Pickering, Crime State Refugee .24 Didier Bigo, ‘The Mobius Ribbon of Internal and External Security(ies)’ in Mathias Albert, David Jacobson

and Yosef Lapid (eds), Identities, Borders, Orders: Rethinking International Relations Theory (Minneapolis:University of Minnesota Press, 2001).

25 Miller and Hashmi, Boundaries and Justice , p. 5.26 Andreas, Border Games , pp. 9–10.27 Australian Federal Police, Australian Federal Police Annual Report 1997–1997 , (Sydney, 1996–1997).

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in the $353.3 million (AU$) to be spent on border protection in the 2002 nancial year (incontrast to the drastically reduced $7.3 million allocation to the work of UNHCR 28). Theborder-policing effort of the AFP extends well into Indonesia (considered further below).

This paper seeks to make two straightforward points in regard to the regulatory effortof the AFP in relation to people smuggling. First, the work of the AFP against peoplesmuggling can only make attempts by refugees to reach Australia more dangerous and theAFP embarks on anti-people-smuggling activities in the knowledge that the greater theirpolicing efforts the greater the risk is to refugees of serious harm and death, noted inpolicing jargon as ‘target hardening’. 29 Second, in undertaking such activities the AFPsevers policing from its territorial base. Once refugee policy is largely determined to be amatter of criminality, criminal investigation and law enforcement, the challenge to sover-eignty that is apparent in the quasi-international realm of refugee policy dissipates—sincesurely no one can seriously mount a challenge to the sovereign right of nations to determinecriminal policy? As the AFP overows into neighbouring countries so too does criminalpolicy overow into other aspects government, including international humanitarian obliga-tions.

Evidence suggests a number of important features of the AFP’s reconceived role inrelation to border protection and people smuggling:

• While the AFP is interested in border policing (in the form of anti-people-smugglinginitiatives), it is not primarily concerned with the conviction of people smugglers but inthe prevention of refugee protection under international law.

• The operations of the AFP in anti-people-smuggling activities are detached from a humanrights framework and strongly attached to unquantiable resourcing issues.

• The ‘target hardening’ recommended in the AFP submissions regarding the excisions of Australian territory from the migration zone 30 can only contribute to the increasedsophistication of people-smuggling endeavours and increased risk for asylum seekers. Forexample, the AFP has stated that it considers ‘that the proposed changes may bebenecial in the wider context as they are designed to send a deterrent message topotential trafckers … Any such changes should be understood to be, in effect targethardening in terms of the ability of smugglers to get illegal immigrants to Australia andinto the immigration process.’ 31

In September 2000 the Minister for Justice issued a ministerial direction stating that thegovernment now expects the AFP ‘to give special emphasis to countering and otherwiseinvestigating organised people smuggling’ and that the ‘AFP should also ensure that itprovides an effective contribution to the implementation of the Government’s whole-of-

government approach to unauthorised arrivals’.32

This gave the AFP a clear remit in relationto refugees, as stated by the AFP:

The AFP therefore has an interest in the enforcement of the criminal provisions of theMigration Act 1958. Its role is to investigate and prosecute offences against the Migration Act.This is done in accordance with the Australian Justice system and AFP investigations are

28 Savitri Taylor, ‘A Human Rights Approach to Dealing with “Facilitated” Asylum Seeker Flows’, paperpresented at the Immigration and Human Rights: European Experiences and Australian Resonances Confer-ence, Contemporary Europe Research Centre, University of Melbourne, 7 November 2002, p. 10.

29 See also Andreas, Border Games.30 See the Migration Amendment (Excision from Migration Zone) Act 2001; Migration Amendment (Excision

from Migration Zone) (Consequential Provisions) Act 2001.31 Australian Federal Police, Submission to the Australian Senate Legal and Constitutional References Com-

mittee, Inquiry into the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002(Canberra: Commonwealth of Australia, 2002), at 1.3 and 1.4.

32 Australian Federal Police, Submission, at 3.9.

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undertaken with a focus on obtaining evidence for such prosecutions. In particular, the AFPengages in targeting the facilitators of people smuggling ventures. 33

There is very limited evidence to support the claim that AFP involvement in anti-people-smuggling initiatives has primarily, or even signicantly, been directed at gaining convic-tions. Rather, it has been dedicated to stopping boats from leaving Indonesia preventing

people from potentially invoking Australia’s refugee protection obligations. The police are‘protecting’ Australia from conforming to international law as well as protecting malleableunderstandings of ‘borders’. The AFP has also aided the collection of intelligence not onlyon ‘people smugglers’ but also on those who seek to use their services to gain refugeeprotection. The manner in which this is done, free from territorial constraint, is at bestvague, as the AFP admitted to a Senate committee investigating this issue:

The AFP does not have a border protection role in the same way that the Committee wouldunderstand the Australia Customs Service, DIMIA [Department of Immigration and Multicul-tural and Indigenous Affairs], Coastwatch and Australian Defence forces to have. Our role inprotecting an Australian border lies in the provision of an investigatory function of offencesthat occur across the national barrier (eg drug and rearm trafcking, environmental crimes,illegal immigration) … The AFP maintains a very strong focus on ghting these crimesoffshore, now commonly referred to as ‘transnational’ crime. The Committee would be awarethat the AFP has no jurisdiction (police powers) beyond Australia’s borders. As such, it doesnot have an operational role in other countries. The AFP makes up for this limitation by seekingthe assistance of, and collaboration with, overseas law enforcement agencies. 34

The AFP is allegedly gathering material for convictions in a jurisdiction in which it has noauthority to act. This means that Australian police work is carried out by the Indonesianpolice (not known for a record of accountability or human rights) and ‘informants’ such asthose revealed in a Channel Nine television programme. 35 This programme detailed a covertAFP operation inside Indonesia, where statements were made alleging that the AFP, at the

very least, knew about the sabotaging of boats that were to sail to Australia. At worst, itwas alleged that its informants were taking part in sabotage operations. The AFP respondedto the allegations in the programme by saying,

The people who conduct the disruption—or the intervention—are the people with the power toconduct a disruption being the Indonesian National Police, the Indonesian defence andsometimes the Indonesia Immigration. We nd we obtain information from informants, butinformants do not disrupt. They have no power to disrupt. 36

Despite locating the actual ‘disruption/intervention’ with the Indonesian authorities, theAFP works with these authorities. Indeed, it is their only ‘base’ in the ‘investigation’ of people smuggling in Indonesia. There is little doubt the AFP is implicated in anti-smugglinginitiatives carried out by the Indonesians 37—if for no other reason than it is through theIndonesian police regime that the AFP has any standing on this issue, as a policing issue,outside Australia. Importantly, under Indonesian law, people smuggling is not a crime. 38

Presumably, then, anti-people-smuggling policing by the Indonesian National Police (INP)

33 Australian Federal Police, Submission, at 3.2.34 Australian Federal Police, Submission, at 4.1 and 4.2.35 Channel Nine, Sunday Programme , ‘The Federal Police and People Smugglers’, 1 September 2002.36 Channel Nine, Sunday Programme , ‘The Federal Police and People Smugglers’.37 As was given in evidence by Federal Agent McDevitt at the Legal and Constitutional References Committee:

‘We participate in a number of cooperative efforts around the region, but it would be fair to say that most of the AFP’s efforts are focused on engaging with the Indonesian National Police and other police and lawenforcement agencies in the region.’ Australian Senate Legal and Constitutional References Committee,Inquiry into the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, p. 35.

38 While there was discussion of people smuggling being designated a crime under Indonesian law, at the timeof writing this remained unresolved.

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occurs on the insistence of Australia, where people smuggling is a crime. The questioningof Commissioner Keelty at a Parliamentary Inquiry made clear that the AFP does notoperate within an identiable human rights framework and that AFP disruption activitiesoat free from international law and even domestic law:

Senator Payne: The focus of the AFP’s submission is about addressing transnational organisedcrime—understandably, I suspect. That is essentially because the AFP does not have a role inthe observation of international obligations and things like that, isn’t it? Your role is in thecriminal aspects of this process?

Commissioner Keelty: That is correct. 39

Senator Payne’s question rst disassociates ‘criminal aspects’ from the framework of international law—the two separate functions cannot be simultaneously carried out. Thisplaces international law at odds with transnational border policing. Second the questionaccepts the AFP function in relation to transnational organised crime and locates it within‘criminal aspects’. Senator Payne’s question, conrmed by Commissioner Keelty’s re-

sponse, afrms that when it comes to people smuggling, and possibly federal lawenforcement more generally, the AFP is not fundamentally concerned with internationalobligations—including obligations under the Convention Relating to the Status of Refugees,the Universal Declaration of Human Rights, or the International Covenant on Civil andPolitical Rights. 40 The reluctance of policing to engage with such traditional aspects of international law may be not be unusual, but when considering the proliferation of international law around traditionally criminal matters generally, and transnational crimeand human trafcking specically, 41 the disassociation of the AFP role from internationallegal arrangements is surprising.

The lack of a clear accountability framework for the activities of the AFP inside

Indonesia, let alone a human rights framework generally, raises grave concerns about thenature of the border-policing effort. What kind of policing is being undertaken in pursuitof the amorphous notion of ‘anti-people-smuggling’? The description of the AFP role in itsevidence to the Committee seems disingenuous in its concerns for refugees as it contortsthe legislation under question into a set of regulatory mechanisms that will bring theservices of the AFP to the refugees. At one moment the Commissioner advocates thelegislation as a way to deter refugees from coming and to push them into ‘mainstreamactivity’ (one can only assume this means they need to join the alleged refugee ‘queue’ inIndonesia) or, if they do come by boat, to make them seek out the mainland of Australiaas a landing point rather than the nearer Ashmore Reef or Christmas Island. 42 If the AFPis committed to the well-being of the refugee it is surprising that it did not detail how itswork in Indonesia facilitates refugees joining the alleged genuine ‘queue’ for refugeeprotection or, alternatively, how pushing marginally seaworthy vessels all the way to theAustralian mainland does not further jeopardize refugee lives:

39 Australian Senate Legal and Constitutional References Committee, Inquiry into the Migration LegislationAmendment (Further Border Protection Measures) Bill 2002, p. 27.

40 While these international legal provisions do not automatically impose legally binding obligations, there areseveral provisions that have led to the development of equivalent principles of customary international law.

41 For example the United Nations Convention against Transnational Organized Crime; the Protocol to Prevent,Suppress and Punish Trafcking in Persons, Especially Women and Children, supplementing the UnitedNations Convention against Transnational Organized Crime; and the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational OrganizedCrime. While some of these treaties have only recently come into force, or are not yet in force, they stillprovide a signicant and identiable human rights framework.

42 That are no longer considered part of Australia for the purposes of migration under the Migration Amendment(Excision from Migration Zone) Act 2001.

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Chair: If people smugglers get more creative, that would make the job almost impossible foryou, wouldn’t it? You have a fairly extensive mainland to protect.Commissioner Keelty: That is right—and when I say that I mean you are right about themainland of Australia—but, as pointed out in the gures I gave in the previous answer, it ismore difcult for us to send resources to remote areas, because of the lack of infrastructure.At least if they come to the Australian mainland there is the potential for us to do somethingabout them. The idea is to force them into the mainstream activity, and this is a deterrent to

leaving passengers to their own fate on remote islands, where we have had people die.Chair: It is good to see that someone cares.Commissioner Keelty: We do care, and it does not matter whether they are the peoplesmugglers themselves or whether they are the passengers. This is a far preferable way for usto go, instead of having them left on a remote island.Chair: So, basically, you are saying you would prefer them on the mainland, that you think thislegislation will bring them there and that they will then be more manageable for you.Commissioner Keelty: Yes. In a nutshell, and I think you touched upon it, as we advance anypolicy in law enforcement, whether that be Immigration policy or otherwise, the exibility of the people smugglers is the exibility of most transnational criminals, which is the ability towork around current legislation. We see this legislation as being a useful deterrent. The wholeobject is to force people to come to Australia through the correct procedures but, if they are

going to commit a crime in the way they are sending people to Australia, we can at least tryto get them sent to where there is some infrastructure support for them. 43

The outcome of the excision legislation, endorsed by the AFP, will ‘target harden’ Australiaas a refugee ‘destination’. (This may not indicate a carefully considered AFP policydevelopment but rather a [lucrative] desire to mimic and cleave with the policy and rhetoricof ministers.) The AFP put it in the following terms when questioned by the Committee:

based on previous experience the AFP has already anticipated that the current successes inpreventing, deterring and arresting those involved in seaborne people-smuggling will drive thepeople smugglers to either evolve new methodologies to evade detection or return to morecovert means of illegal arrival in Australia. It is not foreseen that changes accompanying theintroduction of the proposed amendments will affect the ability of the AFP to full its role. In

fact, the AFP views the proposed changes as potentially benecial in the wider context as theyare designed to send a deterrence message to potential smugglers and trafckers. Resultantchanges should be understood to be, in effect, target hardening in terms of the ability of smugglers to get illegal immigrants to Australia and into the immigration process and adeection of illegal immigrants to regional centres with better infrastructure. 44

Various government, military and law enforcement bodies have collaborative stakes in theborder-policing effort in the same way that nations increasingly invest in bilateral andtransnational agreements on people smuggling. The ‘securitisation’ of cross-border move-ment of people depends upon such collaboration. 45 The pan-national approach to peoplesmuggling has emerged through various regional and international forums. This has beenparticularly the case in Europe where border policing and people smuggling have found

expression in the Schengen Agreement, the Dublin Convention and the Tampere conclu-sions. The European Union, G8 Group, United Nations High Commissioner for Refugees(UNHCR), United Nations Children’s Fund (UNICEF), International Organization forMigration (IOM) and other international non-government organizations have developedpositions and programmes on the issue. Morrison and Crosland estimate that there areover thirty intergovernmental bodies in Europe focusing on people trafcking and smug-gling. 46 The majority of the European initiatives focus on border control. For example,

43 Legal and Constitutional References Committee, Inquiry into the Migration Legislation Amendment (FurtherBorder Protection Measures) Bill 2002, p. 30.

44 Legal and Constitutional References Committee, Inquiry into the Migration Legislation Amendment (FurtherBorder Protection Measures) Bill 2002, p. 25, evidence of Commissioner Keelty.

45 Bigo, Identities , Borders, Orders , p. 105.46 See for example John Morison and Belinda Crossland, The Trafcking and Smuggling of Refugees: The

Endgame in European Asylum Policy? , Working Paper No. 39, (Geneva: UNHCR, 2001).

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Schengen provides for covert police operations and signicant cross-border police collabo-ration. 47 Coupled with the extensive anti-people-smuggling initiatives that rest within theframework of transnational organised crime, the provisions for surveillance and regulationof large population groups become not only possible but normalised through the SchengenInformation System and Europol. 48 Studies have shown that the use of such integratedsystems of surveillance not only potentially impinges on the rights of generalised popula-tions but specically brings such surveillance to bear on refugees—those escaping thepersecutory behaviour and human rights violations of home countries. 49 In relation toAustralia, integrated approaches to people smuggling have largely come in the form of regional agreements, such as the Regional Ministerial Conference on People Smuggling,Trafcking in Persons and Related Transnational Crime. 50 Australia has also created anAmbassador for People Smuggling Issues from the ofce of the Minister of Foreign Affairsand Trade, 51 and included closer methods of cooperation between Australian and Indonesianpolice forces. Such cooperation has been conceptualised as follows:

Should prevention strategies fail to remove the requirement or incentive to leave countries of origin or rst asylum, disruption of secondary movement through the detection and interceptionof the people smuggler’s route becomes the priority. 52

The relationship between the AFP and the INP was formalised in a memorandum of understanding (MOU) on transnational crime between the two bodies on the 15 September2000. The AFP has given evidence that the MOU allows for ‘the AFP and INP to provideadvice regarding target selection, technical and management support of operations, inform-ant management, information facilitation and assistance in nancial reporting’. 53

The great lengths to which the multi-agency approach to anti-people-smuggling initia-tives and policing the border are being pursued also signals a cross-jurisdictional mergingof policing and military functions. It sees the merging of internal and external security

concerns not only where the criminal meets refugee policy but also where the border is thepoint of convergence and security is not only a state affair but a boundary function. 54 Theborder becomes and remains the focus. The borderland then becomes the vast space intowhich Zedner has described governments ‘casting about’ for spheres of activity in whichthey can assert their sovereignty. 55 The police beat is militarised, becomes global andpredictably homes in on the most vulnerable and the most desperate for the unmitigated useof force and practices of exclusion. The moralising tone of interdiction policies resuscitateslaw and order and brings it to the high seas and border zones. Such tones can only be heardas state sovereignty territorially crumbles in other ways and the stakes in legitimating theuse of force against the unprotected are raised. Such efforts cannot in any rational terms beconsidered a response to forced migration, but as a response to the condition of the state

47 Green and Grewcock, The War against Illegal Immigration .48 Thomas Mathiesen, ‘On the Globalisation of Control: Towards an Integrated Surveillance System in Europe’,

in Penny Green and Andrew Rutherford (eds), Criminal Policy in Transition (Oxford: Hart, 2000).49 Peter Andreas, ‘The Transformation of Migrant Smuggling across the US–Mexican Border’, in David Kyle and

Rey Koslowski (eds), Global People Smuggling: Comparative Perspectives , (Baltimore: Johns HopkinsUniversity Press, 2001).

50 Bali, 26–28 February 2002.51 The Hon. Alexander Downer, Media Release FA27/ 28, February 2002.52 The Hon. Philip Ruddock, Border Protection: People Smuggling—Australia’s Experience and Policy Re-

sponses—A Background Paper , Ͻ www.minister.immi.gov.au/borders/detention/peoplesmugg 2.htm Ͼ (ac-cessed 26 July 2002).

53 Senate Select Committee on a Certain Maritime Incident, A Certain Maritime Incident , (Canberra: Common-wealth of Australia, 2002), p. 10.

54 Bigo, Identities , Borders, Orders , p. 91.55 Lucia Zedner, ‘The Pursuit of Security’, in Tim Hope and Richard Sparks (eds), Crime Risk and Insecurity

(London: Routledge, 2000).

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in late modernity. As social theorists have argued, a new form of sovereignty is emerging,with exible and expanding frontiers. Rather than being tied to the traditional territorialnation state, sovereignty is now a ‘deterritorialising regime’ with constant ows of movement and exchange. 56

From the above discussion we can see how easily refugee protection is morphedinto security. The multi-agency approach and the technologisation of space (notablythe surveillance of the borderlands) break free from standard measures of public account-ability in a liberal democracy. Moreover, when refugee protection is usurped bythe emerging lexicon of people smuggling and the focus becomes the responseof the ‘whole of government’ to policing the border (whether by the military,the bureaucracy or traditional policing agencies), the state itself is transformed. WhileI agree with Crawford that ‘As crime and insecurity have become unbounded so toopolicing is becoming cut free from its association with the modern state to incorporate adiversity of actors’, 57 I also suggest that the state itself is cutting lose from territorialboundaries. As policing oats free from territorial bases, so too does state force, and so doesthe state from a territorialised base. Multi-agency governance that rests upon the transform-ation of a humanitarian issue into matters of criminogenic potential occurs in an environ-ment free of criminal justice checks and balances but with all the coercive power of themeshed military and civil policing bodies. A more powerful expression of the coercive statewould be difcult to nd. Moreover, with the absence of checks and balances upon thebureaucratic structures that drive the military/civil policing of the border, the spectre of institutional deviance emerges without name or recognition, a deviance with the potentialto harness unbounded coercive powers. In the inquiries noted above the failure of bureaucratic accountability was questioned. Actual border-policing practices came in forcriticism.

However, there has been state ambivalence about the merging of refugee, criminal

and national security policies. Crawford has described such ambivalence in relationto the criminal as the ‘residual capacity of the nation state to assert its sovereignauthority, thus producing a volatile mix of criminal justice policies which are atone moment assured, expressive and morally toned, and at the next moment, hesitant,rationalistic and instrumental’. 58 When the criminal moment is transferred (geographically,politically and militarily) to the border, the state confronts the ‘technocratic urge’ tomanage crime and insecurity while expressing fears and anxieties. 59 The crisis in ‘migrationmanagement’ 60 manifests itself in unaccountable and shifting policing forms thathave violent outcomes for the refugee and an information vacuum for the citizen.The consequences of this include serious problems for the expression of traditional

sovereignty, the unchecked violence of unbounded sovereignty and the developmentof new (yet old) techniques of control and practices of exclusion. It also signals a momentin which the border-policing practice becomes transferable to other suspect populations.While this has massive consequences for new suspect populations, it has broaderramications for understandings of the policing/security apparatus beyond the domesticrealm.

56 See, for example, Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard University Press,2000); Fiona Allon, ‘Boundary Anxieties: Between Borders and Belongings’, Borderlands ejournal , 1,2(2002); Justine Lloyd, ‘Departing Sovereignty’, Borderlands ejournal , 1,2 (2002).

57 Crawford, Crime and Insecurity , p. 1.58 Crawford, Crime and Insecurity , pp. 9–10.59 Crawford, Crime and Insecurity , pp. 9–10.60 Sassen, Losing Control? Sovereignty in an Age of Globalization.

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Refugee Border Terror

The trends and discourses identied above have increasingly become intertwined withresponses to terrorism. This can be demonstrated by examining how the federal policingapparatus, now a security apparatus, has expanded its deployment of the anti-refugee/peo-ple-smuggling agenda to matters of terrorism and further merged and broadened the

police/military function that transforms policing into the extra-territorial security realm.The shift from refugee deviancy to the refugee as matter of national security enables an

almost seamless shift from responses to the refugee-border-criminal to political-terrorist-criminal. In the days after September 11, the movement of refugees across borderssymbolically and materially evidenced the vulnerability of the West to the (Muslim) massesin which terrorists may so effectively ‘secrete’ themselves (and were often en masseinterchangeable with the terrorists). The refugee, no longer a criminal threat, became aterrorist threat. For so long in media and public representations had there been an incessanthum of refugee deviancy that it became a short hop to allege the potential spectacle of refugee terrorist deviance. As the refugee had threatened the integrity of the territorial

nation state, the terrorist threat exacerbated existing fears of the inviolability of the nation.On 13 September 2001, Australian Minister for Defence Peter Reith told the radio station3AW that you need to ‘manage people coming into your country. You’ve got to be able tocontrol that; otherwise it can be a pipeline for terrorists to come in and use your countryas a staging post for terrorist activities.’

In the mid 1990s there was no mention of either people smuggling or terrorism in theannual reports of the AFP. However, by mid 2002 the two had been conated and placedat the fore of changing budgetary conditions. The 2001–2002 AFP annual report recordedfurther funding ‘to enhance the AFP’s capacity to respond to crimes such as peoplesmuggling, terrorism and politically motivated violence . Funding of $47.0 million over fouryears will be provided to double the AFP’s strike team capacity, enabling the deploymentof 100 ofcers around Australia.’ 61

In the border protection moment, race (Arab), religion (Muslim) and exaggeratednumbers (invasion) are the established discourses of fear. 62 Concomitantly, these discoursesestablish the territorially sovereign state as vulnerable and under threat. The robust state isat the mercy of a few, and Islam, specically, is consciously mobilised for political pointscoring. Responses to terrorism in the post-September-11 environment draw on these nowfamiliar discourses to employ stunted understandings of sovereignty and unencumberedvisions and functions for concretising the police/military mesh on the border. State poweris retained by exaggerating the strength of both the refugee and the terrorist threat. 63

Moreover, border protection has been inherently disinterested in the reasons why peoplehave ed and has focused on how they have arrived on the shores of the Global North, aspolicing terrorism has been primarily concerned with how terrorism may occur rather thanwhy.

Signicant criminological research provides evidence of the symbiotic relationshipbetween policing and terrorism—particularly in the Northern Ireland conict. Anti-terrorismlegislation dependent upon restrictions on civil liberties can have devastating effects inalienating communities, fostering hostility and increasing the longevity of conict. 64 Other

61 Australian Federal Police, Australian Federal Police Annual Report 2001–2002 , (Sydney, 2001–2002), p. 23,my emphasis.

62 The overwhelming majority of refugees arriving by boat in Australia over the past ve years have edpersecution in Iraq, Afghanistan and Iran.

63 John Strawson (ed.), Law after Ground Zero (London: Glasshouse Press, 2002).64 Rhiannon Talbot, ‘The Balancing Act: Counter-Terrorism and Civil Liberties in British Anti-terrorism Law’,

in John Strawson (ed), Law after Ground Zero (London: Glasshouse Press, 2002).

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literature on borders and policing speaks to the construction of suspect populations 65 and thepoliticisation of communities through patrolling entry and exit points under anti-terrorismlaws.

The introduction of anti-terrorism legislation in the UK and the US has had two maintenets—increased policing powers and tougher immigration and asylum laws and proce-dures. 66 Human rights and civil liberties are considered fragile legal inconveniences and canonly be mobilised through discussion of sovereign rights and the threat to the ‘liberties’ of the nation. Sovereign law and security are aggressively pursued to destabilise individualisedrights and liberties. Legal liberal culture is ‘swallowed up’ in crises of the national securitystate67 while simultaneously institutions of liberal legal culture may be emboldened by thesituation to reinvent themselves. Anti-terrorism legislation has yielded increases in broadpolice powers, not just powers specic to specialist counter-terrorism policing. Theincreased police powers contained in anti-terrorist legislation do not systematically conformto the usual accountability mechanisms placed on policing practice, and as in the case of the refugee, subject the terrorist subject to all the ideological, cultural and material trappingsof the criminal justice systems without the corresponding safeguards. Also similar to thecase of the refugee, such powers underpin wide-ranging inter-agency cooperation that inparticular has brought together intelligence organizations with policing services. In theAustralian context this has manifest in two key relationships, rst between the AFP and theAustralian Secret Intelligence Organisation (ASIO) and secondly between the AFP andIndonesian security. For example, the AFP 2001–2002 annual report states,

In February 2002, Australia announced that it would help the INP to patrol the thousands of kilometres of Indonesian coastline serving as havens for people smugglers. In the 2002–03Budget, an additional $1.5 million over four years was provided to the AFP for ve boats foruse by small units within the INP. These boats will patrol extensive areas within Indonesian

waters in order to prevent illegal immigrants leaving Indonesia.68

In the wake of the Bali bombings the AFP has further extended its role in Indonesia andfurther aeld in places like the Solomon Islands and Papua New Guinea. The potential forthese island nations to collapse into failed states and harbour terrorists has been a key justication for developing an AFP presence. The cultural and political acceptance of agreatly expanded role for the AFP in the Pacic has been made easier after widespreadAustralian public support for the operation of immigration detention centres on ManusIsland (Papua New Guinea) and Nauru as a central plank of the border-policing functionagainst the refugee.

As well as beneting from anti-terrorism legislation, federal policing bodies have beencentral players in the political process that produces that legislation. While police may havehad input into legislative development in the past, their heightened role in the post-Septem-ber-11 environment has established, in the Australian context, the federal police as apolitical force:

65 See, for example, Paddy Hillyard, Suspect Communities (London: Pluto Press, 1993).66 For commentary on the Australian anti-terrorism legislation see: Jude McCulloch, ‘Either You Are with Us or

You Are with the Terrorists: The War’s Home Front’, in Phil Scraton (ed.), Beyond September 11: An Anthology of Dissent (London: Pluto Press, 2002); Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (Sydney: UNSW Press, 2003); Savitri Taylor, ‘Reconciling Australia’s InternationalProtection Obligations with the “War on Terrorism” ’, Pacica Review , 14,2 (2002), pp. 121–140; SavitriTaylor, ‘The Line Dividing Good and Evil’, Borderlands ejournal , 1,1 (2002).

67 Anthony Carty, ‘The Terrors of Freedom: The Sovereignty of States and the Freedom to Fear’, in JohnStrawson (ed), Law after Ground Zero (London: Glasshouse Press, 2002), p. 55.

68 Australian Federal Police, Australian Federal Police Annual Report 2001–2002 , p. 51.

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In order to more effectively achieve its functions, the AFP took an active interest in thedevelopment of legislation. The Legislation Program cooperated closely with other portfolioagencies such as the National Crime Authority (NCA), Customs and Attorney General’sDepartment (AGD) and was responsible for the AFP’s participation in relevant parliamentaryprocesses. Ongoing legislative reform equipped the AFP to better meet emerging challengesposed by serious and organised crime. During 2001–02, ghting serious crime across domesticand national borders required legislative support in areas relating to policing powers andinvestigative tools, as well as new offences and proposed reform of the Commonwealth civilforfeiture regime to ensure that criminals do not prot from their activities. 69

Discourses of sovereignty and the border have been central to how commonwealth policinghas been recrafted. Before either people smuggling or terrorism featured in the remit of theAFP, as noted in the AFP 1996–1997 annual report,

With restrictions of national borders declining and the mobility of criminals increasing, crimetrends evident for some time in other parts of the world, are now appearing in Australia … Oneof the major features of contemporary crime is the internationalisation of criminal ac-tivity … Transnational crime is receiving wider recognition as a signicant factor in globalsecurity considerations. 70

A focus on the borders and the vulnerability of the state without clear or enforced bordersfundamentally alters the realm in which policing operates. For example, it was noted in mid1997 that the ‘AFP’s emerging jurisdiction is between Australia and the rest of the world’, 71

for example, greater cooperation between domestic and international law enforcementbodies, such as the INP. However, these jurisdictional changes were afoot before the crisisin people smuggling emerged as a national issue (usually considered around 1998 inAustralia) and before the current preoccupation with the threat of terrorism (after September11). Such changing jurisdiction speaks to the ways the federal policing apparatus sought toredene its purpose prior to either the people-smuggling or terrorism crises. Federalpolicing has sought to recraft itself away from traditional law enforcement and towards

national security:The escalation of transnational crime and its increasing threat to Australia is blurring thedistinction which in the past has existed between national security and conventional lawenforcement. Increasingly, criminal acts and threats are impacting on the broader nationalinterests and security of nations, including Australia. 72

From the late 1990s these changes become less vague, rstly being dened in relation toanti-people-smuggling activities and then, after September 11, anti-terrorism.

The AFP is in the process of evolving into a substantially different organization to what it hasbeen … In addition, during the next 12 months, the AFP will have considerably enhanced rolesand responsibilities, stronger legislative support to carry out its functions, and changedrelationships with key Commonwealth and State partners and clients 73

However, the AFP sought to represent such changes as inevitable responses to the changingenvironment, rather than changes that it had been seeking for some time. For example, in2001–2002 the AFP noted,

it was this level of adaptability that enabled the AFP to react quickly to Australia’s heightenedsecurity needs following the 11 September 2001 terrorist attacks in the United States (US). Theimpact was almost immediate on Australian security and law enforcement and created the needto engage in additional protection activities, investigations in support of US authorities as weintelligence gather and investigation of related matters under Australian law. 74

69 Australian Federal Police, Australian Federal Police Annual Report 2001–2002 , p. 83.

70 Australian Federal Police, Australian Federal Police Annual Report 1996–1997 , p. 13.71 Australian Federal Police, Australian Federal Police Annual Report 1996–1997 , p. 6.72 Australian Federal Police, Australian Federal Police Annual Report 1998–1999.73 Australian Federal Police, Australian Federal Police Annual Report 2001–2002.74 Australian Federal Police, Australian Federal Police Annual Report 2001–2002 , p. 2.

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Notably, the post-September-11 environment was a moment to recraft the federal policingorganization—the impact noted above was an impact on security and law enforcement apparatus, not on terrorism.

Regional Governance: Sovereignty and Transversal Policing

The discourses of sovereignty identied above have informed narrow, but far-reaching,responses to both refugees/people-smuggling and terrorism. Far reaching because they haveinformed not only the construction of crises but also the recrafting of the federal policingapparatus. Moreover, that recrafting has unshackled the federal policing effort from itstraditional domestic base and physically taken it into other countries to enforce Australianlaws—laws that do not necessarily overlap with the laws of those countries. In order to dothis, the law enforcement function has needed to become a matter of national security andthe federal policing function to be elevated to a military status capable of making potentpolitical contributions. Paradoxically, the national boundaries such policing has sought topreserve have needed to be transgressed for their own protection. It is only through the

decline in the border that its protection becomes symbolically possible. The reinvention of the AFP in the border-policing effort against, rst, refugees and, second, terrorism signalsa shift in traditional understandings of security and policing functions which speaks to thechanging relationships between states and performances of statecraft:

The traditional paradigm of security and insistence upon its traditional requirements naturalizesa sharp boundary between external and internal security, as well as military and police matters,and in the process obscures the fact that such a demarcation was produced as part of thedevelopment of the modern warghting state. Recognizing that the functional distinctionbetween military and police was an artifact of the mergence of a particular kind of state at aparticular period leaves us better placed to consider the kinds of contemporary developmentsthat may be the harbingers of another kind of state in another historical epoch with other formsof organised violence. 75

Such transversal policing moments as those identied in this paper, and the new kinds of state and interstate violence that they inform, will reshape relations between states in theSoutheast Asian region. How do such expressions of statehood manifest inside the villagesand coastlines of the Indonesian archipelago? Can such transversal policing, in casting off its territorial base, be absorbed by other states without recourse to postcolonial andneocolonial legacies in the region? The high status of the border-policing effort and itsintrusion into neighbouring countries can potentially have one of two outcomes: rst,overwhelming change to the policing function as traditionally conceptualised and under-stood by domestic audiences and hence potential alienation from them; or, second, therejection of the deterritorialised federal border-policing function from neighbouring coun-tries. Both outcomes have signicant negative consequences for the policing apparatus, forAustralia’s relations in the region and for the plight of those populations rendered suspect.

Border policing, as outlined in this paper, cannot be understood as a rational responseto forced migration but must be understood as integral to the condition of the state in latemodernity. The new forms of sovereignty that border policing depends upon fracture theontology of the nation state and move us beyond the nation state model of power at the verymoment the harshest forms of border policing keep the territorial state alive. In theborder-policing moment new and old sovereignties are invoked and kept alive. Thechallenge, then, is how should we counter border policing as it is currently presented andnd new forms of conceptualising the kinds of policing/non-policing that have come tocharacterise the late modern engagement of the deterritorialised state and the refugee.

75 Andreas and Price, ‘From War-Fighting to Crime-Fighting: Transforming the American National SecurityState’, p. 34.

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