Deporting social problems not the right path
Opinion piece by Law Council President, Mr Greg McIntyre SC, first published in the Canberra Times, 24 August 2024.
While those who serve this country as Ministers are tirelessly committed to working on behalf of the community, we mustn’t lose sight of the fact that they are still human beings who suffer from the same foibles as the rest of us.
Yet there are Commonwealth laws, either existing or currently before Parliament, that confer on Ministers extraordinary powers to completely change people’s lives without adequate checks and balances.
One such set of laws, that has received significant media airtime over the past 12 months revolves around how to deal with people who are not Australian citizens, but who may have lived in Australia for a significant portion of their lives, who have committed a crime and done their time in prison or may be in some way deemed unfit to be part of our community.
Since the High Court’s NYZQ decision a range of new laws and decision-making directions have been introduced or considered to either increase monitoring of people living in Australia, restrict their movements, or deport them. For example, Ministerial Direction 110 applies to decisions on visa cancellation for non-citizens who fail the ‘character test’ in section 501 of the Migration Act 1958 (Cth). While some cancellations (as we have seen in headlines) are based on egregious behaviour, failing this test does not require the commission of a crime, let alone a serious crime.
In many instances, the final say on how a person will be dealt with sits with the Minister, who ends up making the ultimate decision on more visa cancellations than is efficient or appropriate.
No one elected person should routinely bear this heavy burden, especially in the face of intense public, stakeholder, media and political pressure.
The independent merits review role of the Administrative Appeals Tribunal, which will shortly become the Administrative Review Tribunal (ART), is important in this context. This involves an independent person freshly considering all of the relevant facts, law and policy aspects of the original decision. Once established, the new Tribunal is likely to promote greater integrity, transparency and consistency in its review functions.
However, the Minister currently has the power to override the Tribunal’s decisions. There are also few legal constraints on administrative decision making by Ministers in this area. Unlike other decision makers, the Minister is not bound by the rules of natural justice (i.e. that every person gets a fair and unbiased hearing).
Commencement of the new ART is the perfect opportunity to reduce reliance in our immigration system on personal Ministerial decisions.
The ART has the resources and specialist Members to give each case due consideration; to take the time needed to weigh all the competing imperatives carefully; and to set out the reasons for a decision as part of its review.
When you consider that the outcome of these decisions could involve serious consequences for family members and dependants, or indeed for the community receiving the person, this seems a much more appropriate process.
While of course it is imperative to keep our community safe and it must be recognised that serious offending can have profound and lifelong impact on a victim’s life, national policy-making needs to take into account all relevant evidence in order to achieve its community safety objective.
When it comes to the assertion that deportations make the community safer, international evidence casts significant doubt on this - rates of crime depend on many factors and are not necessarily reduced by simply deporting offenders. A major Australian research project on this is underway.
Recent academic research also suggests that Australia’s current practice may have a discriminatory effect on individuals with mental illness.
Systematic and widespread deportation of non-citizens who have served their time in Australian prisons is an unprincipled practice. Under international law, our prisons are supposed to be places of rehabilitation and reformation.
The Law Council recognises that the Australian Government has the right to exclude non-citizens from the country in certain circumstances. However, the character test in the Migration Act needs to be framed more narrowly so that only the most serious offending can lead to removal from Australia. The system needs to recognise the proper merits review function of the new Tribunal, the use of Ministerial discretion to overturn Tribunal decisions needs to be re-considered, and the nature and scope of the Minister’s personal powers revisited.
Deporting our social problems is not, and should not, be the answer. The easy path is not always the right one.
Last Updated on 22/11/2024