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Monday, 29 June 1998
Page: 4332


Senator McKIERNAN (4:40 PM) —On behalf of the Joint Standing Committee on Migration, I present the report entitled Deportation of non-citizen criminals , together with submissions, the Hansard transcript, and the minutes of proceedings.


Senator McKIERNAN —by leave—I move:

That the Senate take note of the report.

Over the past 18 months, the Joint Standing Committee on Migration has been conducting a comprehensive review of the criminal deportation arrangements which are under the control of the Minister for Immigration and Multicultural Affairs, the Hon. Philip Ruddock MP, and which are administered by the Department of Immigration and Multicultural Affairs.

The committee found that the existing scheme was adequately managed, although aspects of the scheme could be strengthened to improve the protection afforded to the Australian community. The committee has responded to the 58 submissions and over 300 pages of transcript evidence it received with recommendations which we believe will ensure that the criminal deportation scheme remains what parliament intended—a fair and effective scheme which protects the community from further crimes by non-citizens.

For 15 years, the current deportation scheme has sought to protect society from criminal non-citizens whose actions have demonstrated their unsuitability to remain part of our community. In that time, several developments have affected the operation of the scheme. Permanent resident non-citizens are now subject to other legislative provisions that could result in their removal from Australia. The Administrative Appeals Tribunal, as a review body, now has the right to overturn even decisions made by the minister about deporting non-citizens. Also, Australia's ratification of international law conventions and the development of Australian case law have imposed new requirements on decision makers.

Although the committee is convinced that the existing arrangements operate adequately, it nevertheless recommends strengthening the process to reflect the goal of protecting the community. The recommendations are based on evidence of a widespread consensus that aspects of the scheme should be modified and updated. However, the changes recommended do not overturn the fundamental elements of the existing system.

The committee's 21 recommendations go to all areas of the existing scheme: refining the existing legal framework; suggesting amendments to the ministerial and departmental policies; and strengthening liaison between the department and state and territory agencies. The major recommendations involve changes to the review arrangements to reflect the central role of the minister as the criminal deportation policy and decision maker.

The committee recommends changes to the statutory time limit on non-citizen liability to deportation to ensure that serious crimes after 10 years of residency can still be considered under the deportation arrangements. I suggest that this recommendation will receive more attention than most of the other recommenda tions contained in the report. The current 10-year rule refers to the residency limitation placed on criminal deportation in section 201 of the Migration Act.

Under existing law, once a permanent resident has lived in Australia for 10 years, he or she is no longer liable for criminal deportation. The 10-year rule is supported by some people on the grounds that it provides certainty and recognises the fact that, after a considerable period of residency, people have become part of the community, even though they have not become citizens. On the other hand, the 10-year rule has been seen as an arbitrary historical anomaly which fails to protect the Australian community from long-term non-citizen residents who have committed serious crimes. Others have noted that the 10-year rule may be too harsh when applied to those who came to Australia as children.

The committee also recommends that:

the Migration Act 1958 be amended to abolish the ten year rule in relation to those convicted of very serious offences. These offences can be specified in the Regulations and would include murder, serious sexual assaults, drug dealing, armed robbery and the other very serious offences contained in the draft Ministerial Policy Statement.

It does not mean that persons who are convicted of offences that attract a sentence of more than two years imprisonment will automatically be considered for deportation if they have been in this country more than 10 years. We are suggesting that there be a discrimination in that area between the very serious crimes and the less serious crimes, if such can be suggested, and we have suggested that our regulations can cope with and cater for this.

The issues addressed in the report continue. We make suggestions about the information exchange with state and territory justice and prison agencies to ensure that each non-citizen prisoner is considered in a fair manner. We found and recognised that the Department of Immigration and Multicultural Affairs is constrained in its dealings with state and territory agencies because of limited legislative powers to gather information. The result is a deportation system using different information and differing verification practices in the various jurisdictions to identify and process potential deportees.

In chapter 5 of the report, from paragraph 5.11 onwards, the committee explores in detail the various methods used to identify potential deportees by each of the state and territory organisations. Without using up the time of the Senate, they are there for everyone to see, and they graphically illustrate the different arrangements in place in each of the jurisdictions.

To our concern, we found that, despite some very good arrangements being in place in some of the states, it is still possible for individuals who would be liable to deportation to slip through the net. We have made recommendations which, hopefully, if they are enacted, will ensure that that will not occur, that people who are liable to deportation will not be able to slip through the net.

In the report we recommend changes to the ministerial deportation policy to specify all relevant community views and the weight that should be given to these respective views. We think that the changes suggested in this report will improve the balance between the sometimes competing objectives of the scheme—that is, protecting the community against the risk of further criminal acts by non-citizens and ensuring that the rights of non-citizens are taken into account.

The committee concludes that, subject to the changes recommended in the report, the criminal deportation scheme must continue. The absence of the power to deport non-citizens who commit crimes offensive to the wider community would strike at the heart of community acceptance of Australia's migration program. It is also important that non-citizens who have abused their residency in Australia by committing serious crime are not permitted to remain in this country. The community has been well served by the existing arrangements, but the revisions unanimously recommended by the committee will instil in the community greater confidence that the scheme operates effectively, efficiently and fairly to protect society.

One issue that it was decided was not within the ambit of the committee's deliberations was the deportation of Australian citizens who are found to have committed crimes. During the process of gathering information, the committee received evidence concerning the deportation or removal of certain Australian citizens who had committed crimes in this country or overseas. We identified two issues: the possible deportation of Australian citizens who had been convicted of criminal offences while in Australia thereby breaking their citizenship oaths, and the deprivation of citizenship to those persons who had become Australian citizens but had failed to advise of their involvement in crimes. We found that these issues were not within the ambit of the committee's terms of reference, and we raised them with the Minister for Immigration and Multicultural Affairs (Mr Ruddock). We refer to them in appendix 8 of the committee's report.

As the deputy chair of the committee, I appreciated the efforts of members from all political parties to achieve a consensus on the direction and scope of the changes necessary to strengthen the scheme. My thanks particularly go to the chair, Mrs Chris Gallus MP, and to all other members of the committee for their endeavours throughout the inquiry. I also thank all the staff, and there were many, who were engaged during the conduct of this long and detailed inquiry. I commend the report to the Senate.