Sovereignty, Globalisation and the Making of the Amendments to the Migration Act 1958 (Cth) 2000–2020: Justifying the Exclusion of Non-citizens

Author: Patricia Rushton

Rushton, Patricia, 2023 Sovereignty, Globalisation and the Making of the Amendments to the Migration Act 1958 (Cth) 2000–2020: Justifying the Exclusion of Non-citizens, Flinders University, College of Business, Government and Law

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Amendments to the Migration Act 1958 (Cth) made between 2000 and 2020 have been justified as a protection or assertion of sovereignty. This thesis interrogates that justification in an historical and theoretical context. It compares the sovereignty asserted with the exclusionary White Australia policy. Through the example of the student visa amendments, it examines the clash of the asserted concept of sovereignty with the neoliberalism of globalisation. By examining the exclusionary amendments, it tests a theory that migration law is being used to express what philosopher Wendy Brown terms ‘hypersovereignty’, a demonstration of sovereign power that simultaneously signals the waning capacity to wield Westphalian sovereignty challenged by globalisation. The thesis identifies the impact of these amendments on the integrity of espoused Australian values and on the rule of law for the non- citizen under the Migration Act 1958 (Cth).

The thesis draws largely on the primary sources of parliamentary debates and prime ministerial comment, as well as legislation and cases. It finds that from 2000 to 2020 the sovereignty asserted was closer to an anachronistic Westphalian conception of sovereignty as unfettered supreme authority over a territory and its people than to a more nuanced 21st century conception, such as the view of James Crawford and others that sovereignty simply means ‘the totality of powers a state may have under international law’ and is therefore subject to international commitments. This justification of sovereignty functioned to exclude the unwanted migrant as well as to diminish scrutiny by the judiciary, to reduce the influence of obligations of international law and to empty the espoused Australian values, including the rule of law, of their ordinary meaning. It can be understood as both a hypersovereignty responding to globalisation and a stunted sovereignty that echoes Australia’s traditional priority of expressing sovereign control through migration law.

Keywords: sovereignty, migration, Australian values, rule of law, globalisation, White Australia

Subject: Law thesis

Thesis type: Doctor of Philosophy
Completed: 2023
School: College of Business, Government and Law
Supervisor: Hossein Esmaeili