Challenging the Transnational Carceral Apparatus of Australia and Aotearoa New Zealand

By Kevin Lujan Lee

The following piece is a part of Progressive City's Planning for Decarceral Spaces for Collective Action series, which addresses how planners and activists can actively engage in designing, creating policies, and/or advocating for the creation of decarceral spaces which promote safety, reduce harm, and are accessible.

1973 saw the formalization of a bilateral migration pipeline between Australia and Aotearoa New Zealand (NZ) through the Trans-Tasman Travel Arrangement, which grants citizens from each country indefinite work and travel authorization in the other upon arrival. As criminal and immigration law have become increasingly entangled in the 21st century, this initial gesture of open-borders goodwill has become a vexed site of migrant criminalization. 

In 2014, Australia amended Section 501 of its 1958 Migration Act, thereby mandating the cancellation of visas for all migrants in Australia who fail a character test. What goes into this character test is infamously amorphous, but it overwhelmingly targets migrants with criminal records. The consequences have been dire: between 2013-14 and 2015-16, the number of canceled Australian visas on moral grounds increased by nearly twelvefold, dramatically expanding the number of migrants deported from Australia. 

There is additional cause for alarm: the Australian deportation regime disproportionately targets New Zealanders in particular. 75 percent of migrants deported from Australia on moral grounds (dubbed "the 501s”) are from Aotearoa NZ. More specifically, these trans-Tasman deportees are overwhelmingly Pacific Islanders––the Indigenous peoples of Oceania. Between 2015-2023, 39 percent of trans-Tasman deportees are Māori (the Indigenous Pacific Islanders of Aotearoa NZ), and 22 percent are non-Māori Pacific peoples. 

To make things worse, the NZ Parliament in 2015 passed the Returning Offenders (Management and Information) Act (ROMI), which mandates NZ Community Corrections to monitor deportees for a discretionary period based on the length of the overseas sentence, with a minimum of six months. ROMI marks the formalization of a transnational carceral state apparatus, wherein domestic law enforcement agencies respond to foreign immigration enforcement actions by extending the sentencing term meted out by foreign law enforcement agencies. 

As criminology scholar Claudia McHardy observes, trans-Tasman migrant offenders in Australia today are thus effectively subject to four modes of state-administered carceral punishment: they are first imprisoned in Australia, then detained in Australia upon completing their sentence, then deported back to Aotearoa NZ, and finally they are surveilled by NZ authorities upon their return. The targeting of (overwhelmingly Pacific Islander) trans-Tasman migrants is no coincidence, and is built upon Australia and New Zealand’s long-standing colonial relations with the rest of Oceania.

Such colonial engagements have yielded racialized tropes of Pacific Islanders as primitive, violent, and crime-prone, which historically have taken center stage in cases of Pacific Islander mass deportation in both contexts. After a half-century of benefiting from Pacific Islander indentured labor for its sugar and cotton plantations, Australia passed the 1901 Pacific Island Labourers Act, which mandated the deportation of all Pacific Islanders, and which successfully removed somewhere between 4000-7500 of them. After turning to Oceania to source low-wage labor for its burgeoning agricultural and industrial sectors between the 1950s and early 1970s, Aotearoa NZ then deployed police raids targeting Pacific Islander “brown overstayers” for mass deportation between 1973-79––in what is commonly referred to as the Dawn Raids.

These racialized tropes have persisted in mainstream political discourse over time, fueling the continued criminalization and mass incarceration of Pacific Islanders in both contexts today. In Aotearoa NZ, Māori comprise 17 percent of the population, but represent 40 percent of total criminal charges and convictions; Pacific peoples comprise 8 percent of the population, but represent 10 percent of total criminal charges and convictions. Australia doesn't collect race/ethnicity data, but the limited available evidence is damning, too. Despite Māori and Pacific communities comprising 1 percent of the total population, they constitute more than half of foreign-born prisoners. In the state of Victoria, Māori and Pacific communities comprise 0.1 percent of the population, but make up 8.5 percent of juvenile prisoners.

Animated and bolstered by the colonial racialization of Pacific Islanders, ROMI has since taken on a life of its own. For its first few years, ROMI was only applied to deportees whose criminal offenses occurred after the law’s passage on November 18, 2015. In 2022, the NZ High Court ruled that it was unlawful for ROMI to be retroactively applied to deportees with offenses predating the law’s passage (Commissioner of Police v. G). Among its reasons for the ruling, the High Court cited a lack of clarity in the law’s original language about the scope of ROMI’s application.

In February 2023, the NZ Parliament successfully passed an expedited amendment to ROMI, which clarified that ROMI would apply to deportees with any criminal record. Subsequently, the courts fell in line as well. In May 2023, the Court of Appeal overturned the High Court’s decision, and upheld the legality of ROMI’s retroactive application. In less than a decade since its formalization, the transnational carceral apparatus targeting trans-Tasman (overwhelmingly Pacific Islander) deportees has already expanded further. 

From Māori resistance to land seizures in the early British colonial period to the Polynesian Panthers investigating police activity in the 1970s and beyond, Pacific Islanders in Aotearoa NZ certainly have a long history of critiquing, challenging, and transforming the carceral state. Today, they continue to build on this legacy of Indigenous resistance through advocacy for prison abolition, with Te Pāti Māori (the Māori Party, which advocates for tino rangatiratanga––Māori sovereignty––in Aotearoa NZ) going one step further in September 2023 by announcing a plan towards prison abolition by 2040. Among its many bold provisions, this exciting plan expunges past convictions of drug use and possession; legally reclassifies drug use and possession as matters of health (rather than criminal) policy; increases resources for re-entry services; and reinstates the right for prisoners to vote.

Such Māori and Pacific-led efforts in Aotearoa NZ have understandably focused on prison abolition at the national scale. However, the problem of the transnational carceral apparatus, exemplified by policies such as Section 501 and ROMI, demands more attention as well. Māori and Pacific abolitionist planners in Aotearoa NZ can do more to build coalitions with their Pacific Islander relatives and abolitionist allies in Australia to develop a bilateral advocacy campaign addressing the racist criminalization of Pacific Islanders across national borders, and to call for the dismantling of the carceral state (prisons, jails, detention centers et al.) in both contexts. The good news is that as descendants of legendary seafarers, Pacific Islanders have a long storied history of building transnational networks across islands, atolls, reefs, and oceans. In our Indigenous ancestral wisdoms lie useful tools to dismantle this burgeoning transnational carceral apparatus once and for all. 

Yet, this story is not merely about the transnational criminalization of Pacific Islanders. More generally, it reveals how colonialism and race continue to shape policing and immigration across national borders today. As planners invested in challenging the carceral state, understanding such processes helps us to better identify the transnational and global apparatuses through which criminalization occurs, and invites us all to join global Indigenous struggles for a more humane justice system. 

Kevin Lujan Lee is a Chamoru researcher and urban planner broadly interested in Indigenous Oceanic politics, with a particular focus on the Indigenous politics of decolonization in Oceania and Pacific Islander social movements in the United States and Aotearoa New Zealand. Currently, he is Killam Postdoctoral Fellow in the University of British Columbia’s Department of Political Science. In Fall 2024, he will start as Assistant Professor of Indigenous Studies at the University of Buffalo.