Is Labor ramping up deportations of non-citizens?

June 20, 2024
Refugee Action Coalition protest in Gadigal Country/Sydney on May 11. Photo: Peter Boyle

Immigration minister Andrew Giles announced in the first week of June that he will be deporting non-citizens.

Like most recent immigration ministers, he’s starting to look a little jaundiced due to the inhumanity the position requires.

The only one who seems to have flourished in the job is Scott Morrison.

He was not only the architect of Operation Sovereign Borders, but he initiated “reforms” in late 2014 that led to the mass deportation of residents.

When Giles assumed the office, the Coalition had just deported more than 7000 non-citizens, including close to 3000 New Zealand-born residents.

Prime Minister Anthony Albanese had promised New Zealand he would implement a modest plan.

But Giles has now reversed last year’s reforms, under pressure from the Coalition which ran campaign saying they were “too lenient” on long-term residents and non-citizens. The charge of leniency came after their ties to the country were taken into consideration.

Some cancelled visas, however, have been restored.

Giles signed Direction 110 on June 7. Ministerial directions inform departmental officials, under section 499 of the Migration Act 1958, on what they have to do.

“Since coming to office, the government has refused and cancelled a large number of visas on character grounds in the interests of community safety,” Giles said. He added that he had cancelled 40 visas “in the national interest”.

The problem, he said, is that the Administrative Appeals Tribunal (AAT) is making decisions not to deport residents.

Direction 110 relates to section 501 of the Migration Act, which contains a character test that results in the automatic deportation of non-citizens if they are sentenced to 12 months or more in prison.

But the prison time does not have to be all at once: multiple terms can trigger deportation as can suspended sentences and time in rehabilitation.

Former immigration minister Scott Morrison’s 2014 amendments dropped the pre-existing 24-month limit to 12.

The United Nations had already ruled in 2011 that the pre-reform version was in breach of international law.

Deporting New Zealanders

One effect of Morrison’s law, which was retrospective, was that thousands of NZ-born long-term residents were turfed out.

These people had spent almost their entire lives in Australia, yet they were deported. The government didn’t warn Wellington either: deportees just started arriving.

Since Morrison’s law kicked in, New Zealand-born people who had never featured in the top 10 nations represented in Australia’s onshore immigration centre figures, had by 2016 become the largest cohort in detention. Still today, NZ-born people make up the largest numbers in detention centres.

The mass deportation of New Zealanders from Australia devastated their communities; families were torn apart.

Aotearoa had to set up a support system to deal with the large numbers of suddenly appearing without a home to go to.

Then PM Jacinda Ardern raised the issue of Australia exporting its criminals repeatedly with Morrison, who just shrugged.

When Albanese became PM, he said he would be more compassionate.

Primary concerns

Direction 90 was signed by former Coalition immigration minister Andrew Hawke, in March 2021. It replaced the 2018 Direction 79.

And in terms of changes, it added an extra primary consideration when deciding whether or not to throw a resident out of the country.

The three considerations already required in Direction 79 were: “protection of the Australian community from criminal or other serious misconduct”; “the best interests of minor children in Australia”; and “expectations of the Australian community”.

Hawke’s Direction 90 added a further consideration — “whether the conduct engaged in constituted family violence”. It was put at number two in the list.

Last year’s Direction 99 added a fifth consideration, at third place on the list, which was “the strength, nature and duration of ties to Australia”.

This last stipulation has always been problematic, as it means that people who have been living here for their entire lives, beside birth, can be thrown out. This has particularly affected the NZ-born.

Direction 110 was issued after the Liberals’ campaign that community safety was allegedly at risk because the AAT had granted people permission to stay in Australia because of their strong links to the nation.

Issuing same direction

“Ministerial Direction 110 is guided by two key principles: the protection of the Australian community and commonsense,” Giles said. The “safety of the Australian community is the government’s highest priority”, he added.

However, Direction 110 contains the same five priority considerations as its predecessor.

“Protection of the Australian community” remains the number one consideration, as it has been since 2018. In fact, the order of priorities is the same as Direction 99.

Even the controversial consideration of “strength, nature and duration of ties to Australia”, the provision that has allegedly led to Australia becoming less safe over the past year, remains fourth on the list of primary considerations.

Giles said that the his new direction serves to elevate “the impact on victims of family violence and their families into one of the existing primary considerations, reflecting the government’s zero-tolerance approach to family and domestic violence”.

It appears that Giles’ new direction will likely have no real impact on the number of deportations after June 21, when it takes effect.

But Giles did succeed in recasting himself and Labor as being “tough” on non-citizens.

[Paul Gregoire writes for Sydney Criminal Lawyers, where this article was first published.]

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