In Summary

  • This is an opinion piece by Mirko Bagaric, Professor of Law, Swinburne University of Technology that was originally published in The Australian

Scott Morrison is right to resist pressure from his New Zealand counterpart, Jacinda Ardern, to reduce the rate at which Australia is deporting non-citizens who commit serious criminal off­ences.

Changes made to the Mig­ration Act in 2014 have made it easier for us to deport non-citizens who commit crime. We can deport offenders who are sentenced to prison for a year or more. The federal government has exercised this power more than 4000 times, including more than 1000 sent to New Zealand.

Ardern’s displeasure lacks a moral or jurisprudential foundation. People who commit serious offences, especially crimes of violence, cause profound suffering. Imprisoning offenders costs more than $100,000 a year.

Apart from imprisonment, there is a shortage of sanctions to match the gravity of serious offences. Deportation is one of the few low-cost and effective measures we can impose.

Non-citizens who commit serious offences still need to serve their prison term before they are deported, so we are not spared that cost, but the benefit of deporting offenders after they have served their time is that we can be sure they will not inflict further damage on Australians.

This is an important consideration given almost half of prisoners reoffend within five years of release. Deporting serious offenders is the only measure that provides a guarantee these people will never again hurt Australians.

Sending serious offenders overseas means the Australian government is transferring the recidivism risk to another country, but Australia cannot be held responsible for that. Nonetheless, there is a need for legislation to make deportation of offenders fairer and more consistent.

There is considerable disagreement across Australia regarding how deportation should be factored into the sentencing calculus. In three Australian jurisdictions (Victoria, the ACT and Queensland) offenders who are likely to be deported at the end of their prison term can receive a sentencing discount. The rationale for this is the hardship caused by deportation constitutes an additional punishment.

NSW, the Northern Territory and Western Australia do not provide such a discount. The position in Tasmania and South Australia is not settled

In setting criminal sanctions, the cardinal determinant is the principle of proportionality, which means the seriousness of the crime should be matched by the harshness of the penalty.

Logically, the penalty means the totality of the burden is imposed on offenders in response to their offending. Offenders who are deported at the end of their prison term experience a greater deprivation than those who return to Australian society.

To avoid disproportionately punishing offenders who will be deported, these offenders should receive a penalty reduction. The reduction should be on a sliding scale, with the maximum set at 25 per cent (which is about the same discount accorded to offenders who plead guilty).

Offenders who are returned to developing countries (such as Iraq and India) should receive a greater discount than those returned to developed nations (such as New Zealand and Canada), given their capacity to flourish is likely to be hampered to a greater extent.

This approach would ensure any potential unfairness stemming from deportation relating to criminal offending is removed.

The most difficult deportation decisions relate to when the offender has relatively deep ties to Australia and has spent a long time here.

The immigration minister has discretion in such cases, but pleas to use this discretion more frequently are misguided.

All legal rules can throw up what seem to be harsh results but this is normally not a reason to bend the law. Compassion has a role in governmental decision-making. But no virtue is absolute.

Mirko Bagaric is Director of the Evidence-Based Sentencing and Criminal Justice Project at Swinburne University of Technology. This opinion piece was originally published The Australian.

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