ABSTRACT
The use of deportation to export risks in the form of non-citizens has brought the Australian government under the full glare of judicial censure in both domestic and international jurisdictions as to the lawfulness of its actions against noncitizens. It would seem that the Judiciary may be the last bastion of protection for non-citizens in an age of hyper-sovereignty characterized by the desire of the Global North to ‘juridically other’ undesirable non-citizens (cf. Jamieson and McEvoy 2005). This chapter undertakes a reading of state illegality in relation to the capacity of audiences ‘from above’ (Green and Ward 2004) to censure state harms. The study of state crime has historically overlooked the possibility of resistance, especially resistance from within the state itself, to state harms and violence. This chapter is concerned with exploring the potential for censure from above, but also from within the apparatus of the state, namely the Judiciary, the complicity of which has often been regarded as crucial to the perpetuation of state harms (Jamieson and McEvoy 2005). Specifically, the chapter considers the capacity of the juridical process to name state illegality, dispute dominant narratives of border protection and produce counter-narratives. It does so by examining the ways the human rights and legal protections of asylum seekers and other non-citizens limit the actions of the state and how judicial censure operationalizes discourses of human rights. The tension between the sovereign rights of states and the individual rights of refugees has been played out in restrictive interpretations of protection, deferral, withholding and avoidance of refugee protection (Dauvergne 2008), which renders ‘failed asylum seekers’ liable to removal. These legal and political conflicts are not without risks for governments, which stand to be criticized by different constituencies for stances that are considered either too restrictive or too permissive.
