No abstract

The global COVID-19 pandemic starkly revealed the underlying structural harms and produced vulnerabilities for people living in closed congregate settings like immigration detention centres (‘IDCs’) and residential aged care facilities (‘RACFs’). This article compares the Australian legal regimes that regulate IDCs and RACFs, conceptualising both as authorising and enabling sites of control, confinement and social isolation. We argue that specific COVID-19 measures have intensified a logic of social exclusion and disposability towards people in IDCs and RACFs. Through comparing recent COVID-19 litigation, the article explores the possibilities and limitations of engaging legal strategies to achieve social reform and legal accountability within both sites of confinement. Ultimately, we suggest that such COVID-19 litigation has the greatest possibility of advancing social justice when it is embedded in a broader politics of de-incarceration and abolition oriented towards political inclusion, public health and building more equitable and just communities.

Calls for the urgent release of people seeking asylum, refugees and other non-citizens held in immigration detention centres began as soon as the magnitude and reach of the global health crisis associated with COVID-19 became clear. Public health organisations quickly identified detention centres, as sites of mandatory and often overcrowded social confinement, as extremely high risk places for both infection and onward transmission of COVID-19. In Australia, before the end of March 2020, over 1180 health care professionals and epidemiologists called for the Government to release people from immigration detention, flatly stating that, '[f]ailure to take action to release people seeking asylum and refugees from detention will. .. put them at greater risk of infection (and possibly death)' (SBS News, 2020). Similar statements were made by the Australasian Society for Infectious Diseases, the Australian College of Infection Prevention and Control (Davis and Russo, 2020) and over 1100 Australian and international academics in an open letter to the Australian Government initiated by Academics for Refugees (Academics for Refugees, 2020). Common to all expert advice were warnings that a failure to take action would not only endanger the health and lives of those in detention, but would inevitably put the broader community at risk, since detention centres are porous locations with staff and other personnel frequently moving in and out of them.

The outsourcing of refugee protection obligations is reshaping state relations in the Asia Pacific and Southeast Asian region and has underscored a progressively punitive approach to ‘irregular’ refugee movement. Such a shift can be partially but importantly traced to the deterrent foundations of Australia's dual-track processing system, introduced as an outcome of the 1989 Comprehensive Plan of Action on Indochinese Refugees (CPA). Although the CPA was a multilateral attempt to improve access to refugee protection through a coordinated regional response, in many respects it undermined the potential for refugee protection. By examining the history and motivations of regional responses, we can trace their impact as an exercise in either affirming or disavowing regional responsibility for refugee protection, while enabling some states to retain and even increase their capacity for control in the region. Given the call by the Global Compact on Refugees for coordinated regionally responsive approaches based on humanitarian principles, the crafting of regional and global plans, their motives and their governing logic, require ongoing and careful attention to ascertain the forms of responsibility or irresponsibility for refugee protection which they might sustain over time.

Institutional confinement is paradoxically characterised by intense surveillance, while those confined are often rendered invisible as persons of value and agency. Our capacity to ‘see’ violence in such sites can also be harder to discern when it is the manifestation of neglect: not so much as mistreatment but untreatment, the failure to act. Drawing on Mbembe’s concept of necropolitics and Agamben's conceptualisation of the exception and abandonment, I propose that the deaths resulting from the untreated skin wounds of Annunziata Nancy Santoro, in aged care, and those of Hamid Khazaei, in immigration detention, are the effect of their location in what I call ‘zones of neglect’. Whether in places of care or punishment, neglect functions here as a form of power, in which responsibility for suffering paradoxically recedes from view. This analysis contributes to a growing body of research on quasi-carceral sites that sit uneasily along a continuum of care and control.