In Summary

Opinion piece for The Australian by Professor Mirko Bagaric, Dean of Law, Swinburne University of Technology

New Zealand Prime Minister Jacinda Ardern publicly has scolded Scott Morrison and Home Affairs Minister Peter Dutton for deporting criminals back to her country, but she’d have been better advised to tell her countrymen not to commit serious crimes in Australia.

Australia sets a really low bar for Kiwis to be able to remain here: don’t commit serious crimes while in this country. Anyone incapable of meeting this easy threshold must take complete personal responsibi­lity for their actions and stop complaining if they are deport­ed.

Ardern’s comments were not only impertinent but jurisprudentially flawed. Australia’s approach to deporting criminals is the most fair and effective mechanism in the world. The government can deport non-citizens who are sentenced to prison for a year or more.

This is a far more transparent and effective policy than the New Zealand laws applied to foreign criminals, whereby offenders who have resided­ in New Zealand for 10 years can escape deportation. The 10-year exception is a random period­ and is no more logical than five years, or 12, or 20, and it prod­uces arbitrary outcomes.

It means that an offender in New Zealand who is not a citizen but who has resided there for nine years, has children born in New Zealand and who has deep ties to the country can be deported; yet a layabout who commits the same crime and has no family in New Zealand but has resided there for 11 years will be allowed to stay.

The legal system operates most fairly when rules are applied in a transparent and binary manner. The Australia deportation system, which is based on a binary construct­ (people are citizens or they are not), is far more coherent than standards based on numbers plucked out of the air, which are alway­s based on speculation, such as a person’s extent of integration into a country in which they are not a citizen.

All legal rules can sometimes throw up what seem to be harsh results but this is normally not a reason to bend the law or introduce qualifications and exceptions. If hard cases influence the operation of the law, they make for bad law.

To suggest that it is asking too much of non-citizens to avoid being imprisoned for a year constit­utes an intellectually barren and morally vacuous account of human responsibility and justice. The solution to the supposed problem of excessive criminal deportation rests with individual action, not discretionary expres­sions of government compassion. The expectation that people should not commit serious crime is one that nobody (citizens and non-citizens alike) can legitimately reject.

Moreover, the moment exceptions and qualifications are introduced into legal standards that deal with human interests, it is certain that people will try to fall within the scope of the exceptions. Hence it is inevitable that after the recent High Court decision in Love and Thoms (which held that those who identify as indigenous Aust­ralians, are recognised by the community as such, and can trace their descent, cannot be deported), a large ­number of offenders who are non-Australian citizens will asser­t an indigenous heritage.

Recently, Shane Martin, father of AFL star Dustin Martin, who was deported to New Zealand in 2016, claimed Aboriginal lineage. The government should expect an avalanche of such claims.

The claim that Australia’s crim­inal deportation policy is contributing to rising gang violence in New Zealand is misguided and a consideration that is irrelevant to Australia’s policy settings. If New Zea­land has a gang problem, it needs to take ownership of it. More effect­ive policin­g is a good start.

The main consideration guiding our government in developing laws and policies is always the best interests of Australians. The Australian parliament cannot govern in the best interests of Kiwis. ­Deportation is the only sanction at the disposal of our government that ensures offenders will not again harm any of us. It would be remiss of our government’s duty of care to us all to subordinate the safety of Australians to citizens of other countries.

And the special ties between Australia and New Zealand do not justify a racist policy that treats their criminals more favourably than those from India, China or Greece. This is especially the case given that New Zealand is a wealthy developed nation with ample resources to devote to law and order.

Crime damages people, often very badly. Australia is a welcoming country, with very high levels of immigration. The only way to balance these considerations is to have an unequivocal policy that non-citizens who harm Australians will be removed.

If another country finds this policy corrosive, it would benefit from some schooling in the areas of national sovereignty and governme­nt priorities — not to mention diplomacy.

Mirko Bagaric is Dean of Swinburne Law School and a former member of the Refugee and Migration Tribunals. This opinion piece was originally published in The Australian.