Australia's mandatory deportation of (many) criminal offenders is causing us in New Zealand to get very excited. And now John Key realises he can't do anything about it, he's getting ugly.

It's one of life's little ironies that a country in part founded by individuals deported for their criminal actions is now so obsessed with ridding itself of those individuals who display the same characteristics. I refer, of course, to Australia's recent enthusiasm for deporting those whose offending demonstrates a lack of "good character".

The basic problem arises from a change Australia made in December last year, which significantly tightened up the deportation rules relating to any resident visa holders (like NZ citizens) who have criminal records:

  • A resident visa holder who has served more than 1 year in jail (whether before or after the rule change, and whether in one continuous term or a series of shorter ones) is deemed to have failed the "good character" test needed to hold that visa;
  • If this "good character" test is failed, then the Minister must cancel the residence visa - meaning that the NZ citizen is then unlawfully in Australia;
  • All individuals who are unlawfully in Australia must be detained, as per Australia's policy dating back to the mid-1990s;
  • An individual may then appeal to the Minister to waive the visa cancellation ... but he doesn't have to do so if he doesn't want to ... and at the end of that appeal period you get shipped back to your "native" country.

The consequence of that change is what we are now seeing played out in our media: NZ citizens who may have lived in Australia for many years suddenly finding their right to live there has been revoked because of historic and comparatively minor criminal offending, getting bundled off to the immigration detention centers deliberately built in out-of-the-way, hard-to-reach places and remaining there until being deported back to a New Zealand that they may have no memory of whatsoever.

All of which is getting us a bit riled up on this side of the ditch. Aren't the Aussies meant to be our ANZAC mates? How could they treat us (or, at least, our fellow Kiwis) in this way? Does our "special relationship" really only extend to having to wear each others national colours on a bet?

Well, before grabbing a pitchfork and torch and joining the mob, let's just check that our high-horse is securely saddled. How do we in NZ treat overseas citizens - including Australians - who commit criminal offences here?

Under our Immigration Act 2009, an Australian citizen (as a "residence class visa holder") becomes "liable for deportation" for criminal offending as follows:

  • If the Australian has been resident here for less than 2 years, he or she is convicted of an offence for which the court has the power to impose imprisonment for a term of 3 months;
  • If the Australian has been resident here for less than 5 years, he or she is convicted of an offence for which the court has the power to impose imprisonment for a term of 2 years or more;
  • If the Australian has been resident here for less than 10 years, he or she is convicted of an offence and sentenced to imprisonment for a term of 5 years or more (or for an indeterminate period capable of running for 5 years or more);
  • If the Australian has been resident for more than 10 years, he or she can't be deported for criminal offending.

Note that the above only makes an individual Australian offender "liable" for deportation - the decision on whether or not to actually deport lies in the hands of the Minister (who in practice delegates it down to Immigration officials). That decision is then taken in light of other relevant circumstances, such as the nature of the offending (noting that a conviction for, say, "Disorderly Behaviour" carries a notional term of imprisonment of 3 months!), the offender's family connections to New Zealand, their employment status, etc, etc. So it's by no means certain an Australian who commits even a reasonably serious criminal offence in New Zealand will be deported as a result.

Furthermore, if a decision is made to deport any individual, they have a right to appeal that decision to the (independent) Immigration and Protection Tribunal. Provided the individual isn't already locked away serving a sentence for his or her offending, he or she remains free in the community until that appeal is resolved. You don't get detained for deportation purposes until a final deportation order is made at the end of any appeal periods.

But, of course, a person still may be deported from New Zealand as the result of criminal offending - even if that means having to leave a spouse and children behind. Let's not pretend otherwise. Sovereign countries do have the right to rid themselves of individuals who are not their citizens that they do not think desirable to have within their borders.

Which then brings us back to Australia and its deportation policy. Our complaint can't be that they are deporting NZ criminals, full stop. Nor can it be that they are deporting NZ criminals with families in Australia. After all, we do the same thing.

So instead the complaint has to be that Australia is inappropriately deporting people - in particular, our citizens - who it ought not to. And (or, or) Australia is treating those that it wishes to deport in an inappropriate manner.

Both of which seem like quite valid criticisms. There are at least some cases coming through the media which do look overly punitive. And places like Christmas Island detention center are not nice places at all; indeed, a big part of Australia's deterrence policy towards "unlawful" immigration has been to make the detention conditions for such "illegals" so unpleasant that they will either not come to Australia or agree to be removed tout suite.

That was, at least until recently, pretty much the consensus view here in New Zealand. Even given Australia's basic right to decide who can stay in its borders, it was acting like a bit of an arsehole ... especially when those being affected were carrying NZ passports. I mean, it's one thing to treat asylum seekers from distant lands like Iraq, Pakistan, etc in this way. But when it is Kiwis at issue ... well, it's just the underarm incident all over again, isn't it?

Except, today in Parliament that consensus seemed to break down. John Key is now claiming that Kelvin Davis and his Labour colleagues (as well as the Greens, apparently ... and probably me for writing this post ... and you, too, unless you lean over to the microphone in your phone right now and clearly state "I disagree with Pundit" so the SIS can hear you) want "to protect sex offenders, rapists, and murderers". Yet just last month when Malcolm Turnbull was visiting New Zealand, here is  RNZ reporting that Key "says he will ask his Australian counterpart to release New Zealanders from detention centres and exempt them from Australia's tough new immigration policy."

Somehow, in the space of less than 30 days, Key has gone from personally seeking the release of Kiwi deportees to decrying such suggestions as "put[ting] yourself on the side of sex offenders". Which makes no real sense until you consider the political space that he's in.

For while Australia may not have set out to catch a large number of NZ citizens with its rule change, it really doesn't care that it has done so. The mandatory cancellation policy was introduced precisely to increase the number of migrants deported and to reduce the discretion available in their cases:

[Former Immigration Minister] Mr Morrison has been frustrated by the Administrative Appeals Tribunal’s ability to overturn deportation orders for violent criminals.

The AAT has reversed Immigration Department rulings by finding that would-be citizens are of “good character’’, despite convictions for child sexual offences, manslaughter, people-smuggling or domestic violence.

Mr Morrison has cancelled 63 visas on grounds of bad character in the past six months.

The AAT has overruled Mr Morrison or the Immigration Department 10 times in the past year.

And the Liberal Government liked the results of that policy change: “The government is as tough on people who seek to exploit our immigration program as we are on stopping the boats.’’ 

Of course, that was all back at the height of the Abbott era. Surely with the new, more liberal Liberal Malcolm Turnbull at the nation's healm, things can be moderated a little bit?

No. No they can't. Because the current Minister of Immigration is Peter Dutton - the only coalition front bencher to abstain when Kevin Rudd apologised to the forcibly removed generations of Aboriginal children and who earlier this year was caught on an open microphone joking about the plight of Pacific Island nations facing rising seas from climate change. This is not a member of Turnbull's liberal wing of the party. And having just emerged from a fractious leadership battle, Turnbull cannot afford to pick a fight with him and his side of the party over this issue.

So there is pretty much nothing Key can do to get this policy even moderated, much less reversed, in the foreseeable future. Even if Turnbull wanted to help him out, he most likely couldn't get it through his caucus. Leaving Key looking like what he is - "weak", because that is what any NZ Prime Minister is when what he wants collides with Australia's internal political imperatives.

So knowing that he will never be able to deliver what Labour (and others) are calling for, Key has been forced to take the opposite tack. He's had to decry those wanting to moderate Australia's approach - a group that last month, remember, included himself - as being  bunch of soft-on-criminals, coddlers of sex offenders and worse. Rob Salmond has had a stopped clock moment on this one; Key's thrown a dead cat on the table (or, rather, a "rapist supporter" tag-line in the House) because he really needs people to talk about something other than what he isn't doing, because he cannot do it.

It's pretty ugly politics. But it's being played out because, in the end, there is really nothing Key or anyone else in NZ can do to change Australian minds on this matter. Just don't expect to hear your Prime Minister telling you that any time soon.

Comments (9)

by Ian MacKay on November 11, 2015
Ian MacKay

What makes the dead cat action worse was the way in which it was apparently planned. English has a look of admiration at Key's outburst seeming to know what would happen before it was said. Carter helpful as always increased the tension by supporting Key's right to "robust" debate and decline the withdraw and apologise. Then looked pleased with himself rather than angry at loosing control of the House. (I wonder if an Opposition MP will test the Speaker by using similar language aimed at a Government Minister?) Ugly is the right word.

by Alan Johnstone on November 11, 2015
Alan Johnstone

The speaker is supposed to serve the house as a whole, and be above party politics.

Lockwood Smith did a great job, Carter seems a partisan hack who can't stop being a national MP. 

I wonder if the time has come to have a truly independent speaker, perhaps put a supreme court judge in the chair?


by Rich on November 11, 2015

As I understand it, Australians in NZ are eligible, like all other legal residents, for citizenship after 5 years. NZers in Australia are never eligible for citizenship unless they gain permanent residence through the points process.

by Rich on November 11, 2015

Not to mention that pretty much all the Australian owned banks have been convicted of various violations of commerce law - mis-selling swaps, credit card charges, etc.

Why don't they lose their rights to "commercial residence" in NZ?

by Ross on November 12, 2015

You will not pass the character test if:

  • you have a substantial criminal record, meaning you have been sentenced to 12 months or more in prison, or multiple sentences that add up to more than 12 months in prison. A suspended sentence is considered a prison sentence.
  • you have been convicted of escaping from immigration detention, or convicted for an offence that you committed:you are or have been a member of a group or organisation, or had or have an association with a person, group or organisation that the Minister for Immigration reasonably suspects of involvement in criminal conduct
    • while you were in immigration detention
    • during an escape from immigration detention
    • after an escape, but before you were taken into immigration detention again.
  • the Minister for Immigration reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether or not you have been convicted of such an offence
  • your past and present criminal or general conduct shows that you are not of good character
  • there is a risk that while you are in Australia you would:you have been convicted of, or found guilty or had a charge proven for one or more sexually based offences involving a child,
    • engage in criminal conduct
    • harass, molest, intimidate or stalk another person
    • vilify a segment of the Australian community
    • incite discord in the Australian community or in a part of it
    • be a danger to the Australian community or a part of it.
  • you are subject to an adverse security assessment by the Australian Security Intelligence Organisation
  • you are subject to an Interpol notice, from which it is reasonable to infer that you a direct or indirect risk to the Australian community, or a segment of the Australian community.

Note that all of the highlighted features of the test don't involved being a criminal at all

by Megan Pledger on November 12, 2015
Megan Pledger

NZ organises deportation while people are in prison so that they are deported as soon as their sentence ends  (as I understand it).

Australia could do the same but they'd rather give work to Serco by putting ex-prisoners in detention camps. 

by Tom Semmens on November 12, 2015
Tom Semmens

"...So there is pretty much nothing Key can do to get this policy even moderated, much less reversed, in the foreseeable future..."


Rubbish. We have massive economic leverage, and we can hurt them as much as they can hurt us if economic push comes to shove. For example, the New Zealand government could tell the Australians - first off then on the record if necessary - that if they want to re-litigate aspects of CER we'll start taking a closer look as to whether or not it is in our interests to continue to allow their banks to cream off 4.5 billion a years in profits.

by Tim Watkin on November 12, 2015
Tim Watkin

I was going to make the same point Ross. It's a very low threshold...even mixing with people suspected of committing a crime.

by Rich on November 13, 2015

Yeah, exactly Tom - Australia makes a lot of money from their corporates having full citizenship in NZ, especially when their domestic economy is in an increasing mess. I'd also suspect they get a lot of backing from NZ in international fora at a time when Australia is an outlier amongst developed countries on climate change and other issues - not to mention having a pretty poor relationship with China despite their reliance on selling them stuff.

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