Making Migration Law: THE FOREIGNER, SOVEREIGNTY, AND THE CASE OF AUSTRALIA

Abstract

The emergence of international human rights law and the end of the White Australia immigration policy were events of great historical moment. Yet, they were not harbingers of a new dawn in migration law. This is because migration law in Australia is best understood as part of a longer jurisprudential tradition in which certain political-economic interests have shaped the relationship between the foreigner and the sovereign. Eve Lester explores how this relationship has been wrought by a political-economic desire to regulate race and labour; a desire that has produced the claim that there exists an absolute sovereign right to exclude or condition the entry and stay of foreigners. Lester calls this putative right a discourse of ‘absolute sovereignty’. She argues that ‘absolute sovereignty’ talk continues to be a driver of migration lawmaking, shaping the foreigner-sovereign relation, and making thinkable some of the world’s harshest asylum policies.