A return to the 10 year rule? The deportation of convicted New Zealander long-term residents from Australia under Section 501 of the Migration Act

Abstract

ABSTRACTThis contemporary comment considers the consequences of the 2014 amendments to Section 501—the character test—of the Migration Act 1958 (Cth) and considerations of greater fairness, responsibility and social cohesion for long-term residents who experience character-based visa cancellation. New Zealanders have become the largest nationality group of people deported from Australia, a relatively new phenomenon in Australia’s deportation history. Many are long-term residents. The increasing numbers of deportations across the Tasman caused diplomatic rifts to emerge, testing the traditionally close relationship between Australia and Aotearoa, New Zealand. It raised the issues of fairness and where responsibility lies for the conduct of non-citizen long-term residents who call Australia home. Recognising the value of long-term non-citizen residents to the Australian community, those resident for a period of 10 years or more were once protected from criminal deportation under the Hawke-Keating Labor Governments. With a focus on New Zealanders and a commitment to reset diplomatic relations, the Albanese Government has returned to this ‘common sense’ approach. This contemporary comment draws on a systematic policy review to provide policy insights from the past and present to consider future directions for New Zealander and other long-term non-citizen Australian residents.KEYWORDS: crimmigration; deportationNew Zealanderspolicy Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 As of 1 July 2023, New Zealander Special Category Visa (SCV) holders who have been resident in Australia for a period of four years or more are eligible to apply for Australian citizenship. Previously, New Zealanders (and other non-citizens) had to first qualify for Permanent Residence, then live in Australia for a period of four years before applying for citizenship. See https://www.homeaffairs.gov.au/news-media/archive/article?itemId=1047#:~:text=%E2%80%8BFrom%201%20July%202023,be%20granted%20a%20permanent%20visa2 See J. Stumpf (Citation2006). The crimmigration crisis: Immigrants, crime and sovereign power. American University Law Review, 56(2), 367–419. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=935547 [Accessed 17 November 2022].3 See Dissenting report, Labor Members (2019, February). The report of the inquiry into review processes associated with visa cancellations made on criminal grounds. Joint Standing Committee On Migration. Parliament of the Commonwealth of Australia. Canberra, pp. 101–108. Retrieved from https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Migration/Visacancellationprocess/Report4 In s 502 legislation, this power is referred to as one that ‘must be taken by the Minister personally’.5 Primary considerations included a) the protection of the Australian community, and members of the community [from the actions of criminals]; b) the expectations of the Australian community [that non-citizens obey the laws while in Australia]; and c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children. While the majority of primary considerations are risk focused (a and b), one exception that has remained constant across the various iterations of Ministerial Directions is the best interests of non-citizens’ minor children (where relevant), which has maintained primary consideration status.6 The Proust Review was commissioned by then Immigration Minister, Chris Evans 2008. It was an independent review of the discretionary powers afforded to the minister under s 501, s 502 and s 417 of the Migration Act.7 Ministerial Directions No. 65 (December 2014–February 2019). Retrieved from https://nowakmigration.com.au/direction-no-65-visa-refusal-and-cancellation-under-s501/. Note that three further iterations of the Ministerial Directions have been issued since Ministerial Direction No. 65, including No. 79, No. 90 and the current iteration, No. 99. The risk-based response to visa cancellation decision-making guidance presented under the Directions continues to be elevated under these three iterations.8 Primary considerations contained under Ministerial Direction No. 65 include a) protection of the Australian community from criminal or other serious conduct; b) expectations of the Australian Community [that non-citizens will obey the law in Australia] and c) the best interests of minor children in Australia.9 Australian Bureau of Statistics, Australia’s Population by Country of Birth. Retrieved from https://www.abs.gov.au/statistics/people/population/australias-population-country-birth/latest-release#country-of-birth-australia10 See also Hamer, P. (2019). From federation to the ‘501s’: Māori inclusion and exclusion in Australia since 1901. PhD thesis.11 See, for example, Martin, L. (2019, July 19). Jacinda Ardern says deportation of Kiwis isn’t ‘fair dinkum’ after Scott Morrison meeting. The Guardian. Retrieved from https://www.theguardian.com/world/2019/jul/19/jacinda-ardern-to-raise-corrosive-deportation-of-kiwis-with-scott-morrison; McGowan, M. (2021, 18 March). Deportation of a minor: how a ‘corrosive’ policy sank cosy relations between Australia and New Zealand. The Guardian, Retrieved from https://www.theguardian.com/australia-news/2021/mar/18/deportation-of-a-minor-how-a-corrosive-policy-sank-cosy-relations-between-australia-and-new-zealand; Sherell, H. (2019, 19 July). Australia, New Zealand and the ‘corrosive’ character test. The Interpreter. The Lowey Institute. Retrieved from https://www.lowyinstitute.org/the-interpreter/australia-new-zealand-corrosive-character-test; Government of New Zealand. (2018, 28 November). Submission to the Senate Standing Committee on Legal and Constitutional Affairs. Inquiry into the Migration Amendment (Strengthening the Character Test) Bill 2018.12 The Migration Amendment (Strengthening the Character Test) Bill 2018, Migration Amendment (Strengthening the Character Test) Bill 2019 and Migration Amendment (Strengthening the Character Test) Bill 2021.13 A designated offence would be an offence punishable by at least a maximum sentence of no less than two years’ imprisonment, involving: violence, or a threat of violence, against a person; or non-consensual conduct of a sexual nature; or breaching an order made by a court or tribunal for the personal protection of another person; or using or possessing a weapon; or procuring, or assisting in any way with the commission of one of these designated offences.