There is little to envy about Andrew Giles’ position as stories of released immigration detainees convicted of serious crimes dominate the news cycle and the opposition frames the controversies as governmental dysfunction. Conservatives all over the world link immigrants, crime and border control to build their political fortunes. In Australia, Scott Morrison’s “stop the boats” campaign helped win an election in 2013, just as the UK prime minister, Rishi Sunak, and aspiring US president Donald Trump hope similar tactics will help them in 2024.
As minister for immigration and border protection, both Morrison and his successor, Peter Dutton, turbocharged the securitisation of migration. Morrison, as minister then as prime minister, introduced mandatory visa cancellation rules for criminal offenders and dramatically broadened grounds for failure to meet the character test. First, the bar for visa cancellation was set very low – conviction of an offence or offences attracting a cumulative prison sentence of 12 months or more. Policy to guide officials and tribunal (merits) reviewers were refashioned as binding “ministerial directives” to drive home the restrictive message. The minister was given powers to override review authorities to cancel visas, where previously the discretion was targeted at interventions beneficial to applicants.
Critically, Morrison and Dutton also oversaw the creation of the home affairs super portfolio, throwing together immigration, customs, national security and federal policing. This saw the immigration portfolio sidelined to visa processing and enforcement. Paradoxically, it has performed neither of these functions well over time, as many predicted would be the case. The changes were built on the idea of immigrant status as privilege, with zero tolerance for persons not conforming with so-called “Australian values”.
Between the 2013–14 and 2016–17 financial years, the number of visa cancellations on character grounds increased by over 1,400%. Dutton wears these statistics as a badge of honour. What the numbers hide is that this cohort increasingly swept up individuals who were “aliens” in name only. Recent deportees now include individuals who have lived the vast majority of their lives in Australia, with deep ties here and nowhere else. Many cannot be returned to their countries of origin because they are stateless; their country won’t take them; or returning places them at risk of being killed or tortured. Some have disabilities or lack legal capacity: this is no longer a protection against visa cancellation and deportation. Hence the high number of criminal immigrant detainees inherited by Labor in 2022 – and why there were so many affected by the high court’s ruling in the case of NZYQ in November 2023.
Too afraid to oppose these repressive measures when introduced, Labor is now struggling with the legacies of both the failed home affairs experiment and the human mess of mass deportations. The politics is toxic. Labor knows it and the Coalition revels in the electoral response that comes with the perception of politicians who are (not) tough on crime and (not) tough on undesirable immigrants. Dutton’s budget reply speech hit both points repeatedly.
The frustration for those of us who have seen it all before is that the conservatives seem to be controlling the narrative in the face of overwhelming evidence of serious system failures that occurred entirely on their watch. These include the growth of an unprecedented labour trafficking industry noted in the Nixon review, and corruption of the system for visa processing and appeals noted in the Parkinson review. These have long been matters of real economic and societal import.
The new administrative review tribunal and targeted programs to deal with processing backlogs signal progress. Kneejerk responses to cases highlighted by political hecklers do not.
Some criminal permanent residents released from immigration detention may pose a threat to society. However, whether an individual who is formed here (and maybe even born here) should be removed is a different question. More than half of the Australian population are now migrants or children of migrants. Deporting a criminal permanent resident is frequently not just about one person’s exile. The impact on Australians left behind or forced into co-exile can be brutal and profoundly unjust. Historic disputes – Australia with New Zealand and the US with its Central and South American neighbours – underscore the corrosive effect exiled criminals can have on friendly nations.
The much discussed “direction 99” is not intrinsically bad. It is unfair to label tribunal rulings as lacking common sense. Vested with so much power, Giles cannot justly blame others for the mess. If the system is truly broken and causing so much political grief, should we look for more than a new directive? Criminal deportation means permanent exile. Should Australia consider using judges experienced in the nuance and complexity of criminal law to decide who stays and who remains? Now there’s an idea.
Mary Crock is professor of public law at the University of Sydney law school. She is an accredited specialist in immigration law and listed as such in Best Lawyers in Australia
