Fair dinkum! Are New Zealanders to be deported for stealing fish ‘n’ chips to feed their families?

Proposed changes to the Australian Migration Act could see New Zealanders deported for offences such as stealing, possession of small amounts of drugs, and drink driving offences.

The Australian Government is pushing forward with changes to the Migration Act 1958 that could see New Zealanders deported for offences such as stealing, possession of small amounts of drugs, and drink driving offences.

Proposed changes to the Migration Act’s character test would allow for visa cancellations or refusal of visas where New Zealanders have been convicted of crimes punishable by two years’ imprisonment or more, even if a jail term is not imposed and a person receives a fine or good behaviour bond.

Crimes punishable by a maximum penalty of two years’ imprisonment include:

  • High Range drink driving (second offence)
  • Driving under the influence (second offence)
  • Refusal to submit to breath analysis (second offence)
  • Possession of prohibited drugs
  • Larceny (stealing)
  • Common assault
  • Assault occasioning actual bodily harm
  • Contravening an Apprehended Violence Order

The new laws, if enacted, will apply retrospectively. This means anyone who has committed a crime covered by the laws in the past could be deported on character grounds.

The law as it currently stands allows for  migrants living in Australia to be forcibly deported where they serve a sentence of imprisonment of 12 months or more. Since 2014, when that law was introduced, 4,150 visas have been cancelled. More than 1,500 of those were New Zealanders. The deportations have resulted in New Zealanders being separated from their spouses, children, and parents.

Last month, New Zealand Prime Minister Jacinda Adern, told the Australian Prime Minister Scott Morrison that the deportation of people who have almost no connection to New Zealand was not “fair dinkum”.

I made it clear New Zealand has no issue with Australia taking a dim view of newly arrived non-citizens committing crimes, but equally the New Zealand people have a dim view of the deportation of people who moved to Australia as children and have grown up there.

Australian Immigration minister David Coleman is unsympathetic to Prime Minister Adern’s pleas or the plight of New Zealanders.

Like the Australian community, the government has no tolerance for non-citizens who are found to have committed these serious crimes,” he said, when the bill was introduced last month.

We make absolutely no apologies for protecting the Australian community from these harmful people, and we will act decisively whenever we are made aware of that.”

In reply to the Australian’s Government’s response, Prime Minister Adern warned that Australia’s stance has the potential to damage the relationship between the two countries.

I just think we can’t take our friendship for granted; we can’t take our closeness for granted. And if there is something that is causing concern for one side of a friendship, it should be raised”, she said.

Prime Minister Arden, however, stopped short of calling for any retaliation against Australia. She said such a response was not consistent with New Zealand values.

We’ve always taken a principled stance,” she said. “I don’t think two wrongs make a right.”

The two countries’ deportation statistics illustrate the very different approaches taken by Australia and New Zealand. While 50 per cent of people deported from Australia are sent back to New Zealand, just 1 per cent of total deportations from New Zealand are to Australia.

The difference in numbers reflects the different migration laws across the Trans-Tasman. In New Zealand, Australian citizens cannot be deported if they have legally resided in the country for more than 10 years. If an Australian citizen has had a residence visa for less than two years, they can be deported for a crime which carries a term of imprisonment of three months or more. If they have lived in the country for between two and five years, the crime must carry a penalty of at least two years in jail for an Australian citizen to be deported.

Senior criminal lawyer Joseph Correy has called on the Australian Government to scrap the proposed changes. He said: “It is one thing to deport hardened criminals, violent offenders, and sex predators. It is another thing altogether to deport people charged with relatively minor offences. We are talking about people who were raised by their parents in Australia, fell in love with their partners in Australia, and raised their children in Australia. If these changes go ahead, there is the potential for families to be ripped apart and lives destroyed for mistakes, that although crimes, most Australians would be forgiving of.”

Mr Correy’s views are consistent with anecdotal accounts of some of the New Zealanders who have been deported.

New Zealand deportees interviewed by The Conversation reported significant trauma, with many grieving from the loss of contact with children and other loved ones. Stories of children being raised by only their mothers in Australia, following the deportation of their fathers to New Zealand, were common. In one case, a New Zealand man, who came to Australia as a three-year-old toddler, was deported under Australia’s migration laws. The man grew up in poverty and began to commit dishonesty offences because there was no food in the house. He was arrested, removed from his family, and became a ward of the NSW state. He was repeatedly physically abused and sexually assaulted in Australian institutions. Later in life, he became a heroin user and recidivist property offender who spent a decade in and out of prison.

The man was deported back to New Zealand under the 2014 regime. He has no family and no connections in New Zealand. The deportation caused him to become separated from his three Australian-born children.

Migration experts have warned the Australian Government’s Senate committee examining the legislation that the proposed changes to the law would be the “largest expansion of the character test provisions in the Migration Act in history” and may result in five times the number of people automatically failing the character test for an Australian visa.

The fivefold increase has been calculated using figures from the Judicial Commission of NSW on the assumption that visa holders have a similar criminal profile to that of the general population.

Migration researcher and former Labor policy advisor Henry Sherrell told the Senate committee that the proposed changes put tens of thousands of people at risk of deportation who are unlikely to be a threat to the community.

The vast majority of criminal sentences result in non-jail sentences even for crimes such as common assault or knowingly contravening an AVO (Apprehended Violence Order) and assault occasioning actual bodily harm,” he said. 

The Labor Opposition has indicated it will oppose the changes to the Migration Act 1958 but is waiting for the final report from the Senate standing committee on legal and constitutional affairs before finalising its position.  The Senate standing committee reports back to parliament on the changes on 13 September 2019.

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