From Transportation to Deportation: - the mass deportation of non-Australian citizens with criminal convictions. Adjunct Professor Peter Norden AO FANZSOC School of Global, Urban and Social Studies Australian & New Zealand Society of Criminology Conference Canberra December 2017

Early European settlement of Australia: - having a criminal record was essentially a requirement for entry into this land. After little over 200 years, it is now a cause for deportation, even for permanent residents who call Australia ‘home’.

‘Australia is deporting New Zealanders in Droves’ Gathered as we are at the Australian & New Zealand Society of Criminology conference, it is time to ask why… Under changes to Section 501 of the Migration Act 1958, a non-Australian citizen sentenced to a minimum of 12 months prison faces cancellation of their visa and is liable to be deported on ‘character grounds’. A substantial criminal record, according to amendments in 2014 means a non-citizen sentenced to 12 months prison or more, or sentenced to two or more terms, totally to 12 months or more (even if served together).

How many Kiwis live in Australia right now Estimates are that around 650,000 Kiwis live in Australia (15% of N.Z. population) Impact of deportations on character grounds have been most noted in relation to the number of Kiwis deported since 2015. Close to 20% of those held in onshore detention in Australia are New Zealanders, many of whom have lived here since childhood. Many of those now being deported as long-term, permanent residents of Australia. This paper examines this situation in the light of U.N human rights law and principles of justice and fairness.

Forcible removal from Australia: - deportation or removal Forcible removal from Australia: - deportation or removal. Removal: those who do not have valid visa to be in Australia, and those whose visa was cancelled/expired. Deportation: the process used for permanent residents and New Zealand citizens who are not Australian citizens, who have an adverse security assessment. Those deported are required to pay the costs of their deportation.

Historical and legal background: At the time of Federation, it was decided not to include Australian citizenship in the Australian constitution. This power was given to the Parliament to determine. This paper suggests that decision has made the protection of human rights highly politicised ever since. ‘At no time in Australia’s history have such profound divisions opened up between the citizen and the non citizen on the one hand, and between the economically powerful and Australia’s battlers on the other’. Professor Mary Crock Uni of Sydney Law School

Professional experience of such deportations: - Vietnamese, Cambodian, Italian……(1990’s) Further example: Nystrom (2006) 228 CLR 556 (High Court) Stefan Nystom, 31 year old, who had lived in Australia since he was 27 days old….. His permanent visa was cancelled and indefinite detention pending removal to Sweden, his country of birth which he had never visited since. He spoke no Swedish. ‘The difference is the barest of technicalities. It is the chance result of an accident of birth, the inaction of the appellant’s parents. Apart from the dire punishment of the individual involved, it presumes that Australia can exports its problems elsewhere’. Moore and Gyles JJ (Full Court) FCA 429.

Background to High Court Decisions: - determining that the Commonwealth can lawfully engaged in the deportation of permanent Australian residents who are citizens, other than ‘the barest of technicalities’. The concept of ‘citizenship’ is only mentioned in the Australian Constitution in just one context: the disqualification of foreign citizens for Parliament! The Migration Act since 1958 has enabled the deportation of criminal aliens or non citizens, excluding British and Irish citizens and protected persons. The 1983 Hawke Government amendment introduced the 10 year limitation on deporting lawful permanent residents.

1992 Character Test, Section 180a introduced: - where the Minister was satisfied that a person was ‘not of good character’. The intention was to exclude, not deport, such persons. 1996 Howard Government, Minister Ruddock review… Again the focus on the power to refuse or cancel a visa. The amendments of the current decade (Peter Dutton) have substantially changed the emphasis to bring about automatic deportation according to more narrow criteria.

International Human Rights Law: International Covenant on Civil and Political Rights (ICCPR): ‘ no one shall be arbitrarily deprived of the right to enter his own country’ … a right not to be deported. Note the use of the term ‘own country’ rather than mere citizenship or nationality. Application of this to permanent (non-citizen) long-term residents of Australia, including many New Zealanders. Does such deportation constitute arbitrary interference with that right in violation of Section 12(4) of the ICCPR?

International Human Rights Law: International Covenant on Civil and Political Rights (ICCPR): ‘No one shall be liable to be tried or punished again for an offence for which he (she) has already been finally convicted or acquitted in accordance with the law and penal procedures of each country’. Article 14(7) ICCPR. Can it be determined that deportation following criminal conviction in Australia should be viewed as ‘punishment’? One single offence resulting in 12 months imprisonment can result in the cancellation of a visa under Section 501 of the Migration Act, resulting in permanent deportation.

The Australian courts can only interpret the legislation contained in the Migration Act and in doing so often appear to breach principles of justice and fairness… The human rights of long-term residents of Australia, including those who arrived as children, who have made Australia ‘home’? Indicates that is time for a review of the Migration Act in this context.

Review of the Migration Act: what is needed Given that the introduction of the character test was never intended to impact on long-term residents…. Given that the deportation power was originally limited to those who had been in Australia less than 10 years….. Given that the application of Section 501 to deport is now being applied to those who arrived as children…. It is time to respect the rights of long-term, permanent residents who also call Australia their ‘home’.

Conclusion: Should the protection of human rights be left in the hands of the Parliament and political representatives? We see the impact of this in recent decades in Australia. Political popularity: Tough on crime, tough on security & border control…. Australia’s international human rights obligations demand more, especially as we take a seat on the United Nations Human Rights Council.