The New Zealanders languishing in Australian detention centres are a stone in the shoe of the first John Key-Malcolm Turnbull meeting this weekend, but there are face-saving ways Turnbull could cut Kiwis some slack

When Malcolm Turnbull touches down in New Zealand tomorrow night for his first visit as Australian Prime Minister, there will be much back-slapping and bonhomie between two very similar politicians. But far from what the men would have expected just a few weeks ago, the mutual appreciation society will be over-shadowed by the detention centre issue.

Though they won't admit it, both leaders have been blind-sided by an issue that risks doing genuine, if temporary, harm to one of the closes bi-lateral relationships in the world. We share much history and under CER, our economies, labour markets and travel arrangements are incredibly closely aligned. Yet on the question of how to deal with New Zealand citizens who have committed crimes across the Tasman, Australia seems determined to treat us no differently from any other country.

Around 200 Kiwis are now in Australian detention centres due to past offending, with 40 on Christmas Island. And the numbers are growing. Some estimates suggest as many as 5000 New Zealanders could be sent home by the new Australian law introduced at the end of last year that means foreigners who have committed crimes worthy of at least a year in prison are to be deported.

What's often not reported about that one year figure, is that it's cumulative. So it doesn't have to be a crime serious enough to warrant a sentence of a year or more; it could be a series of more minor crimes (six months, four months and two months, for example) that add up to a year. Hence how mere shoplifters are getting caught up in this Aussie purge.

And, of course, it includes New Zealanders who have lived in Australia almost all their lives. You'd think that a country that forms you from infancy might take some responsibility for a person's offending, but – ironically given Australia's history –  our neighbour is showing no pity for even some petty criminals. The stance by Australia's Immigration Minister Peter Dutton has given Turnbull little wriggle room. Consider this quote made on Sky TV just a few weeks ago:

"We have the ability to cancel visas if people are here doing the wrong thing, if they're committing offences in our society. We don't have a tolerance for that, and that's the way in which the law operates, and it will continue into the future".

Turnbull and Key are cut from a similar cloth – both extremely rich men on the centre-right of politics, with burning ambitions yet a determinedly flexible approach to politics (although Turnbull arguably less so on that latter point). Turnbull chose Key as a foreign leader he especially admired when elevated to the top job (don't forget the pair share the same image managers in Crosby Textor), and suggested he wanted to be Key-like in his pragmatic (read: poll-driven and embracing of the centre) approach to leadership.

In private discussions will be convivial and politically pragmatic; it will be the talk of men used to doing deals.

But the public talk will be harder to manage, because the public expectation in both countries is very different. New Zealanders can't understand why Australians would treat us this shabbily – where is the ANZAC spirit now? – while Australians are inclined to think 'good riddance to bad rubbish'.

Continuing his run of recent missteps, Key misread the tone on this one at first. He gave it his usual shrug for a second, before realising many New Zealanders felt a sense of injustice for friends and family in Australia, and the death of Junior Togatuki. So he has strengthened his language, suggesting Australia gets a lot from our close ties and it should "take the rough with the smooth".

He's been honest, though, that in private his tone will be quite different. He was surprisingly frank about his strategy with Turnbull on TV3's The Nation a couple of weeks ago:

"You've got to be a bit careful. We don't want to, sort of, force Malcolm Turnbull into a corner where he has to, sort of, pick and choose. You've got to give political leaders a chance if they're going to make nuanced changes to policies to do so in a way where they can preserve their dignity but maybe cut you a bit more space."

So how could Australia change its policy and still save face? Two possibilities stand out in my mind. First, the threshold for deportation could be lifted for New Zealanders. Until the law change last year it required a two year sentence to be deported, so perhaps New Zealanders could get a "carve out" that put us in a special category that applied the previous threshold. After all, it's not as if Australia was awash with minor Kiwi crims until last year.

That may not be the tough line Turnbull wants to present domestically, but in reality it would be rational and a relatively minor change. The bikers and serious New Zealand criminals Australia wants gone would still be sent packing.

Alternatively, New Zealanders could await deportation in the community rather than in Australia's horrendous detention centres. That leaves a particularly bad taste over here, especially when people are being plucked from their families and detained there over crimes that happened years ago. Where's the justice in re-interring people who have already done the time?

Australia hasn't resourced this law change well enough and I'm told there's a serious backlog in the allocation of cases; these Kiwis could be detained for months awaiting a case manager to figure out how to process and deport them. That's a huge cost to Australia and an unnecessary one. Why not just leave them where they are, in the community as they await deportation?

What's the downside? That they're a flight risk? That they could abscond to... er... New Zealand? Well, that would only do Australia's work for it. It seems possible New Zealand could make the case for more humane treatment for our citizens.

The expectation management at this stage suggest neither of those practical solutions will be announced this weekend; more likely Turnbull might agree to look into the matter, "hear" New Zealand's concerns and buy himself some time politically to tweak his law next year when people aren't looking quite as hard.

Now that would be a very Key-like move.

Comments (13)

by Katharine Moody on October 15, 2015
Katharine Moody

Alternatively, New Zealanders could await deportation in the community rather than in Australia's horrendous detention centres. 

I'd have thought detaining someone who has completed their sentence would fall foul of any number of human rights obligations. So, to me, this is the only conceivable action in a fair and democratic society. It seems what Australia needs to do is start the paperwork for deportation as soon as a sentence is passed (regardless of the prospect of appeals - better to be ready if need be than be caught short for time at the end of the sentence). On starting the paperwork, NZ justice system needs to be informed, so that it can prepare to re-integrate these citizens. Compassion costs society so much less in the long run.  

by Tim Watkin on October 15, 2015
Tim Watkin

Katharine, that seems like a fairer and more rational approach. As I say, I don't see the downside; the way they're doing it must be costing a bomb.

by Moz on October 15, 2015

Uh, this isn't about fair or rational, this is about deterrence taken to the logical extreme - we will torture, rape and kill you if you come here, so don't. "pour encourager les autres".

The problem for Turnbull is not with Key, or the NZ public, it's with the Australian public who have been worked up to the point where "middle of the road white Australia" is to the right of many European neo-Nazis and an example for the rest. It's worth noting that too many Australians have no problem at all with nice white New Zealanders, especially the anglo ones, but those are not the people they think of in this context. They think of dirty darkies coming over here, joining gangs, and committing crimes.

Australians also have no problem with people being deported to awful conditions, the (white) drug addict who was sent to Serbia where he didn't speak the language, didn't know anyone, and had no entitlement to welfare did not raise an eyebrow here until the embassy kicked up a stink because he was camping on their doorstep. We also render people to their deaths, or simply abandon them (the translators in Afghanistan, the numerous refoulments to SriLanka, Iran and Afghanistan) but again, without much concern from the public. Or the Labour party who are nominally left wing (obviously expecting better from the Liberal and National parties is out of the question)

by Moz on October 15, 2015

My expectations of Key in this context are low, probably lower than of Turnbull. I think we'll see a public statement that they're not entirely comfortable with the situation, an assurance from Key that's he's putting pressure on, one from Turnbull that he's going to talk to someone about it, and then the issue will wither away until a kiwi is raped or murdered in detention.

I think the best you'll get is a process where kiwis can sign up for deportation voluntarily early in the process, possibly at the time they're pleading guilty.

by David Crosswell on October 15, 2015
David Crosswell

This is happening to Kiwis who have offended in the past. Not just now. And as far as 'rights' go, that has to be seen in light of the recent appointment of Saudi Arabia as head of the UN Human Rights body; an appointment applauded by the U.S. national administration which, in turn, appears to set the standard, these days, for both Australian and New Zealand governance.

by Tim Watkin on October 15, 2015
Tim Watkin

Moz, I tend to agree that this is a deterrence logic stretched to irrational extremes, but don't agree with you applying Godwin's law in merely your second par! Agreed NZ doesn't have a perfect record either (though from memory we've accepted most if not all of the translators from Afghanistan and immediate families), but it's not necessarily a left/right issue.

Turnbull won't be keen to concede to Key against his own public's opinion, but I'm not sure a repeat of Key's concerns will cut it. He won't want to look weak himself, but maybe your idea of voluntary departure could be the kind of place they land. It's an interesting idea. Far from perfect, as you say, but anything that takes the detention centres out of the equation is probably close enough to a win for Key.

by Peggy Klimenko on October 16, 2015
Peggy Klimenko

"What's often not reported about that one year figure, is that it's cumulative. So it doesn't have to be a crime serious enough to warrant a sentence of a year or more; it could be a series of more minor crimes (six months, four months and two months, for example) that add up to a year. Hence how mere shoplifters are getting caught up in this Aussie purge."

Yes, I'd noticed this as well, though it appears to have escaped the attention of many people here. Oh the richness of it, that Australia deports people for shoplifting, when the ancestors of many of them fetched up there on account of having committed similarly minor crimes in Old Blighty!

I have family in Australia: they've been there for many years and have citizenship. While I think the way this policy is being implemented is simply astonishing in its lack of humaneness, judging by conversations I've had with family there, I can't say that I'm equally astonished that ordinary Australians have no sympathy for the unfortunate deportees. The old "White Australia" policy has fundamentally shaped Australian culture; I guess I shouldn't be surprised at that, given how very recently it was abandoned.

It difficult to avoid noticing that most of those awaiting deportation are Maori or Polynesian. I think we can be forgiven for concluding that the Australian government is pushing this policy to a reductio ad absurdum precisely because most of the deportees are brown.

Now wouldn't it be good to have a PM who would take a stand on principle in this issue. You know, one who would say to Malcolm Turnbull that the way this policy is being implemented is, to put it bluntly, barbaric. No wonder people are characterising Australians as Fascists.

We'd all accept the deportation of serious violent criminals and sex offenders. But shoplifters? and driving-while-disqualified-ers? And pretty much all brown? Really? Pluralist society: bah humbug!


by Moz on October 16, 2015

Tim, when neo-Nazis are publicly impressed  by your policies Godwin's Law has been triggered before anyone writes anything. Things are different in Australia, remember. We had a prime minister running round calling himself "man of steel" after Bush the Lesser granted him that title and I can't believe no-one ever pointed out the previous use of that name (Stalin, in case you missed it). I think Turnbull's presentation is better but the policies haven't changed.

What's scary is that anyone from Australia who works in the concentration camps is covered by the "two years jail for talking about it" laws that the UN Rapporteur on Human Rights was so exercised about. And we've turned Nauru into an effective dictatorship (don't even look at their political situation).

by Alex Rahr on October 17, 2015
Alex Rahr

Public awareness and media coverage of this is pretty low in Australia, so there's a possibility that Turnbull could slip something through if he wanted. I can't imagine what he'd see in it for himself or his party though. There's nothing much NZ has to offer and the risk of Turnbull losing some support within his party is real.

by Rich on October 18, 2015

Why do we allow Australian corporates full citizenship in Nz when they don't extend NZ people those rights?

How would the Australian corporate sector like being forced into a fire-sale of their profitable NZ assets, like Countdown, Bunnings and the banks, at a time when their domestic economy isn't looking too hot?

by Alan Johnstone on October 18, 2015
Alan Johnstone

Seriously we're making this a race thing ? <sigh>

The right to live in Australia is a privilege New Zealanders are granted, don't commit any crimes and you'll have no problems. 

I personally have zero sympathy for these, my only regret is that we don't act in the same way.

by Rich on October 19, 2015

Given that ANZ and Westpac, etc, have had numerous corporate convictions (consumer protection violations, mis-selling swaps, etc) shouldn't they lose the "privilege" of being able to operate in NZ? 

by Peggy Klimenko on October 20, 2015
Peggy Klimenko

Alan Johnstone: "Seriously we're making this a race thing ?"

That's what it looks like from here.

"The right to live in Australia is a privilege New Zealanders are granted, don't commit any crimes and you'll have no problems."

You do know what's going on there, right?

" only regret is that we don't act in the same way."

Er....we do. But people here are deported at the end of their sentences. We don't have government departments trawling through the back files and turfing people out who served a sentence years ago, or who had a suspended sentence, or whose aggregated shorter sentences for relatively minor offences, add up to the required 12 months.

People who have lived in Australia since infancy or childhood - and since adulthood, when they've been there long enough - are enculturated Australians, regardless of what their citizenship status may be. People who have gone to Australia since the Howard government changed the rules have almost no chance of becoming citizens, whether or not they were children at the time of arrival. The Australian government has tied itself up in knots over the immigration issue, to the point that its policy has descended into absurdity, most especially with regard to New Zealanders.

The Australian government needs to be taking a much more nuanced approach to this issue.

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