Last Friday, just as New Zealand PM Jacinda Ardern was about to meet Scott Morrison to discuss what Ardern described as the “corrosive effect” of Australia’s deportation laws upon New Zealanders, Channel Nine’s Today let Peter Dutton wheel out his favourite talking point.

Where we have Australian citizens who are falling victim in certain circumstances where people are sexually offending against children, for example, we have had a big push to try to deport those paedophiles and people who have committed those crimes.

The groans of lawyers and migration agents from across Australia easily drowned out the piss-weak response from Anthony Albanese. The Labor leader certainly didn’t rush to the NZ Labor leader’s side when he replied, “We think that the balance is essentially right but it’s legitimate if there are issues for Jacinda Ardern to raise those with Scott Morrison. We don’t want to see this to be a partisan debate”.

Except it is. This debate is already tearing Australia apart from one of its closest allies, and it’s only getting worse.

A test of ‘character’

This all comes back to changes made to the Migration Act in 2014, which resulted in New Zealanders being deported from Australia or held in immigration detention on “character grounds“. Australian lawyers in the sector are quick to note that New Zealanders who committed serious crimes were always able to be deported back to NZ.

Reuben Saul, lawyer and migration agent, told Crikey “the 2014 changes were clearly about capturing a much larger group of offenders than just paedophiles. The vast majority of New Zealanders we see affected by these laws are not convicted paedophiles or murderers, they are people with complicated criminal histories, often strings of less serious crimes. They may have been convicted of less serious assault, theft or drug-related offences.

“Often these New Zealanders are making very real steps towards rehabilitation, only to be disrupted by the prospect of deportation to a new environment. They have often spent large parts of their lives in Australia. This is where their families and support networks are based, and it’s often the best place for them to move forward with their lives.”

Sydney lawyer Alison Battison has represented clients from a group known in the legal environment as “501s” who face deportation on character grounds. “The way the 501 regime’s being used at the moment is disastrous from a human rights perspective,” she says.

“There are many people in detention who have been charged with crimes but have not actually yet been to trial. I have argued with the department on many occasions that it is not the place of the executive to assume guilt and detain prior to the criminal trial. This is why we have separation of powers in our constitution.”

Battison says these arguments are consistently ignored and points out that “people caught by 501 laws include those who have stolen a frozen chicken because they were hungry and others who have stolen due to poverty.”

“I have come across many situations in which a person has been found multiple times by a tribunal to meet the character test or that there are other reasons why they should be granted a visa. Their case is then referred back to the department and they are rejected again — so the never-ending cycle continues.”

Australia’s ‘special relationship’ with NZ

Scott Morrison has maintained that New Zealanders are not being targeted by these laws. Both Battison and Saul disagree, arguing there are increasing signs of New Zealanders being targeted even further. Saul notes that just last month, the Morrison government introduced a bill which broadens the types of criminal convictions caught by the character test to include certain offences carrying a maximum sentence of two years or more.

“That’s an extremely low bar which will see many more New Zealanders, who have not been in prison for 12 months, face possible visa cancellation,” he says.

On Friday evening, as PM Ardern attempted to depart Australia, the Royal Australian and NZ College of Psychiatrists (RANZCP) issued a press release raising concerns over the mental health impact of deportation on NZ nationals. Dr Justin Barry-Walsh, chair faculty of forensic psychiatry and one of the NZ psychiatrists quoted told Crikey, “This policy has been a cause of concern professionally to me for some time. From a rehabilitative perspective the uprooting of people from the communities that they identify and are familiar with, and separating them from their family and those that are able to give them support increases the likelihood of offending again and elevates the risk of their illnesses deteriorating.”

Saul also advocates for this to be taken into consideration. “I don’t think this is about giving New Zealanders a free pass when it comes to meeting the ‘character test’. No one is calling for that. Rather, it’s about putting in place a framework that ensures decision-makers who cancel New Zealanders’ visas must take into account that the person affected belongs to a country with which Australia has long shared a special bond — especially in cases where the affected person has lived in Australia since childhood.”

After her meeting with Morrison, Ardern showed no signs of dropping the issue. “If something’s wrong and if something is not fair and is unjust, you don’t let it go,” she said. “New Zealanders look at this policy and just think that’s not fair dinkum.”

Peter Fray

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