Myth-conceiving sovereignty: The legacy of the nineteenth century

In the Australian public conversation the statement ‘we shall decide who comes here and the circumstances in which they come’ scarcely requires introduction. This message was a central platform of the Howard Government’s 2001 federal election campaign; a declaration beyond inquiry of Australia’s sovereign right to control its borders. A complex and controversial area of international and public law-making in the twenty first century, migration law continues, in the name of (an absolute) sovereignty, to construct ‘out’ the migrating ‘other’ through the use of blunt measures such as mandatory detention and denial of work and welfare; measures whose dehumanising effects are well-documented. How can law clothe in legitimacy measures with such dehumanising consequences? This chapter explores how the dynamics of race and political economy have influenced the way in which law-makers construct, treat and understand the figure of the foreigner and the idea of sovereignty in the context of migration. It considers the legacy of the (long) nineteenth century in constructing the sovereign right to exclude aliens; a period during which burgeoning new migrations spawned and collided with new and evolving communities, including in the Australian colonies.