Trapped by law

The complex reality behind Australia’s treatment of non-citizens who commit offences

It has been a rough week for Andrew Giles. The Federal Immigration Minister has been excoriated in question time, and repeatedly called on to resign. At the heart of Giles’ troubles is an issue that is vexing him as it did his predecessors: non-citizens who commit offences in Australia. As usual though, the parliamentary theatrics are a long way from the complex human stories behind them.

I had a client some years ago. I’m not much good with faces but I vividly remember his big, dark eyes. Kind, intelligent. And worried. 

It was the second day of a grueling review in the Administrative Appeals Tribunal. We were huddled in the corner of the Hearing Room: he, his solicitor and me (his barrister). He paused and, smiling faintly, said to me, ‘You’re doing a good job’. When I thought about that afterwards it made me cry. 

He’d spent years in immigration detention, and was finally about to learn whether he could remain in Australia with his wife and young children or would be forced to leave forever. And he’d thought to reassure his barrister. It was his nature to protect the people around him. Perhaps it was this instinct that had led him astray. 

He’d come to Australia years earlier after falling in love with an Australian woman. They married and started a family. 

One day his wife came home distraught, saying an acquaintance (from the same country of origin, with ties to a militant group) had sexually assaulted her. My client confronted that man, and assaulted him. It was a bad mistake; one he’d paid for ever since.

He turned himself in to police, pleaded guilty to charges and was sentenced. Under a Migration Act scheme that’s essentially the same today as then, anyone sentenced to 12 months imprisonment has their visa cancelled. They must try to persuade the Australian Government to reinstate it, or face deportation. 

In this case, the Government accepted that my client was a beloved community member and a devoted husband and father; that returning to his home country was now too dangerous given the threats he had received from the man he assaulted; that his family also could never go back; and that he’d learned from his mistake and was no threat to the community. 

None of this was enough. The Government fought him, in the Tribunal and then for years in the courts, while he stayed in detention. Eventually the AAT overturned the Government’s decision and let him go home to his family. Last I heard they were living a quiet, happy life. 

Had things not worked out, there was a good chance – because of threats to his life abroad – that he’d have joined the cohort of people indefinitely detained by our Government

I’ve worked with many people in similar circumstances. Some have lived in Australia for decades or since they were young children. For many, their country of origin is utterly unfamiliar: they have no family or connections there, sometimes can’t even speak the language. Some are elderly and in physical and cognitive decline; others chronically ill or gravely mentally unwell. Sometimes their illnesses – and arguably, their crimes – stem from trauma they suffered before fleeing to Australia. 

Any of them could have ended up indefinitely detained. Undoubtedly, others just like them did. 

Their cases show, I think, that efforts to demonise those our Government indefinitely detained – or to suggest that they only ended up locked away because they were dangerous, or unmanageable, or otherwise left the Government with no choice – are total nonsense. 

The High Court’s decision in the NZYQ case means the Government can no longer indefinitely detain someone where there is no real prospect of their deportation becoming practicable in the reasonably foreseeable future. 

But the scheme I’ve talked about continues. People like those I’ve mentioned are still being deported, and others are detained, all the time.

Recent reports indicate just under 1 in 5 of those released post-NZYQ have been charged with offences. 

Like any of us they are entitled to the presumption of innocence. Charges against some have already been dropped. And no serious person thinks the risk of reoffending—which among Australian offenders is substantial—justifies locking someone up indefinitely. 

Nonetheless, the 1 in 5 statistic has raised understandable concerns.

That many others who were released likely posed no threat to the community, and yet had been unlawfully confined by our Government—some for years—should also seriously concern Australians, and our leaders. I haven’t seen much evidence that it does. 

John Maloney is a barrister, teacher, podcaster and writer.

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