New Zealand Law Society - Australian actions not consistent with humanitarian ideals, says Justice Minister

Australian actions not consistent with humanitarian ideals, says Justice Minister

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Australia's deportation of New Zealand-born people on character grounds is not consistent with any humanitarian ideals that both countries once shared, Justice Minister Andrew Little says.

Mr Little has told an Australian television programme by ABC News that many New Zealanders who are being sent back from Australia have no real connections to New Zealand, no real networks and no real support.

"Look, it might suit Aussie politics, and it seems to me that there is a venal, political strain to this."

Statistics collected by Australia's Department of Home Affairs show a sharp rise in deportations since December 2014 of long-term Australian residents who are not citizens.

This follows amendments to section 501 of Australia's Migration Act 1958, to allow the refusal or cancellation of a visa on character grounds.

The Minister may cancel a visa if a person does not pass the "character test". Section 501(6) gives a lengthy list of matters where someone fails the character test, including section 501(6)(c) which gives a fail where having regard to either or both the person's past and present criminal conduct and/or the person's past and present general conduct, "the person is not of good character".

New Zealanders 52% of all "character" cancellations

The Australian statistics show that over 2017, the visas of 620 New Zealanders were cancelled on character grounds. This was 52% of all such cancellations in 2017, and more than all other countries combined. The United Kingdom (124 cancellations) was next highest.

The number of visa cancellations on character grounds has risen by 1400% from the 2013/14 financial year to the 2016/17 financial year.

Mr Little told ABC News that Australia was exporting its problems to New Zealand.

"Australia has seen an opportunity, whether deporting people with convictions, or those who they deem to be of bad character. They are sending back problem children, so to speak, and it becomes our problem, whether they are people who've done their growing up in Australia, or they've been more recently exported from New Zealand."

Acting Prime Minister Winston Peters was also critical of the Australian actions.

"The reality is we want New Zealanders to get the same treatment an Aussie would get if they were being charged with an offence. That is a trial, before you'er booted off shore," he said.

Review of decisions

A non-citizen whose visa is mandatorily cancelled can seek to have the cancellation decision revoked.  A ‘Revoked’ decision results in a visa being reinstated, whereas a ‘Not Revoked’ outcome upholds the cancellation decision.

Over 2017, 794 revocation requests resulting from "character" cancellations were finalised. Of these, 457 were Not Revoked, 320 were Revoked and 17 were invalid or withdrawn.

The Australian Federal Parliament's Joint Standing Committee on Migration is considering issues which include the efficiency of review processes relating to decisions under section 501. It has been holding public hearings and has received submissions from a wide range of human rights and civil liberty organisations, including the Australian Human Rights Commission, the Refugee Council of Australia and the NSW Council for Civil Liberties.

The submission from the Law Council of Australia states that there is no doubt that the section 501 power is severe, and it is proper that it be exercised with restraint. It says there is a "serious and unsupportable gap" in the legislative framework in relation to the lack of a remedy for an individual that has had their visa cancelled on the basis of criminal charges that have subsequently been withdrawn, struck out or unsubstantiated.

The views of the Minister making the decisions

Former police officer and Minister for Home Affairs Peter Dutton has discretionary powers under section 501. Mr Dutton does not agree with Andrew Little that the recent detention of a 16-year-old New Zealand-born boy was in breach of the United Nations Convention on the Rights of the Child.

"Well, we just need to see the evidence instead of the emotions," he told ABC News. "It doesn't matter who we're talking about. The criteria for us is whether you've committed an offence against Australian citizens and that's the test that we apply."

Apart from the ABC investigation, the deportation of New Zealanders attracts little media attention in Australia. Migration news tends to focus on the fact that Australia's current intake of migrants is the lowest in a decade. However, at a joint press conference with Mandy Newton, Acting Commissioner of the Australian Border Force in Sydney on 3 July, Mr Dutton outlined some of his philosophy on the deportations.

"My job is to keep Australians safe and I'm not going to allow people into the community that pose a risk to Australian citizens. If people are here on a visa – whether they're here from New Zealand or any other country – and they act outside of the visa conditions or they commit a criminal offence against Australians – and particularly in cases where somebody has committed multiple offences against Australian citizens – then I'll rely on the advice, firstly, in relation to the cancellation of that visa and secondly in relation to the deportation of that individual," he said.

"We will make sure he's deported at the first available opportunity"

In response to questions about the treatment of the New Zealand-born boy (variously reported as aged 16 or 17), Mr Dutton showed the hardline "keeping you safe and maintaining law and order" stance which is being taken:

"Now, it's open to this individual to return to New Zealand voluntarily at any time. If he wants to go on a plane today I'll facilitate his return to New Zealand today. We don't want him here in Australia and if New Zealand want him back, then he's welcome to get on the first flight out. We will make sure that he's deported at the first available opportunity, but at the moment he's delaying his return to New Zealand."

Just so the message wasn't lost, he pointed to the record level of deportations: "My primary obligation is to the Australian public, to keep Australians safe and we're deporting people at a record number."

The strong political overtones to the section 501 actions were reinforced more recently by Mr Dutton at an election press conference in Tasmania on 16 July: "We have cancelled more visas of criminals in the last 12 months than Labour did in six years and that means that our communities are safer from Tasmania to Cairns," he said.

Which tends to bring us back to Andrew Little's comment about the "venal political strain".

It's not just Australia

Each year around the world there are a lot of deportations for any reason. In 2017 the European Union countries deported a total of 231,505 third party nationals, with most being deported by Germany (47,240), the United Kingdom (38,970) and Poland (22,210). Europe, of course, has been engaged with a massive influx of economic refugees.

The Deportation Global Information Project provides statistics and information on deportations around the world, along with research. It also promotes the Declaration on the Rights of Expelled and Deported Persons. This was developed by the Post-Deportation Human Rights Project in 2012 and addresses the rights of people who are deported or forcibly expelled by various coercive mechanisms.

The Declaration, which has not been adopted by any country yet, seeks to define basic procedural and substantive rights for such persons who, in many cases, are left with no recourse and who face a wide variety of often quite severe human rights violations, including harsh treatment during deportation, loss of personal belongings and documents, lack of proper medical care, family separation, lack of counsel.

How is New Zealand managing the deportees?

The issues raised by the Declaration have come under increased consideration in New Zealand since Australia started sending increased numbers of people back here. One result was the Returning Offenders (Management and Information) Act 2015. This was hurried into law without any opportunity for public submissions.

The legislation allows special conditions to be imposed on a returning offender. The legislation is being reviewed, and the New Zealand Law Society says the law may have an element of double jeopardy or additional punishment. This is contrary to the New Zealand Bill of Rights Act 1990.

“An offender may be subject to a further period of supervision on an existing sentence, for example, and it’s this additional punishment which can create an inconsistency between New Zealand offenders and overseas offenders”, The Law Society's spokesperson Jonathan Orpin-Dowell said when presenting the Law Society submission on the review.

"The legislation may also apply retroactively. The Act applies to convictions in respect of offending which occurred before the Act was passed. This may be a direct breach of the prohibition against retroactive penalties in the Bill of Rights Act”.

There are also significant concerns about how the Act is operating in practice, with special conditions appearing to be being imposed in all cases. The Law Society has recommended special conditions only be imposed where the court is satisfied they are necessary to achieve the purposes of the Act. It has also recommended a range of other amendments, if the Act is to remain in force.

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