Shifting sands and refugee boats: The transfer of immigration control measures between the United States and Australia

Abstract

Policy makers are increasingly drawing on practices in other jurisdictions when developing immigration law and policy. This is due in part to the fact that the objectives of governments are converging as they seek to attract what they perceive as ‘good’ migrants, such as skilled workers and investors, and to deter ‘bad’ migrants, such as asylum seekers and irregular arrivals. In this thesis, I examine transfers of law and policy that have the objective of deterrence. I focus on the transfer of three measures between the United States and Australia. These are long-term mandatory detention, maritime interdiction, and extraterritorial processing of asylum claims. I compare and analyse the history and implementation of these measures. Referring to interviews carried out with key policy makers, I argue that the similarities in the way these policies have been implemented in the United States and Australia are the result of a process of legal and policy transfer. The analysis of these case study transfers is undertaken with a view of developing a deeper understanding of the transfer process and providing lessons for policy makers involved in future transfers. In particular, I examine the factors which contribute to the success or failure of transfers. I focus on the ‘legal dimension’ of success—that is, the ability of transferred law and policy to survive judicial challenges in the receiving jurisdiction. I also raise general concerns about transfers of restrictive immigration measures. I criticise the opaque nature of the forums in which these transfers occur and question the quality of the information relied upon by policy makers in the transfer process. I argue that at times, transfers of restrictive immigration measures are motivated by competition, as countries seek to outdo the deterrent measures introduced in comparator jurisdictions. This competition has given rise to a ‘race to the bottom’ that has the potential to unravel the international refugee protection regime.