By Tom Crowley, ABC News
NZ Prime Minister Christopher Luxon with Australian Prime Minister Anthony Albanese. Photo: RNZ / Angus Dreaver
Australian Immigration Minister Andrew Giles has issued a new directive he says will make it "clearer" that non-citizens with a history of family or sexual violence should be deported, even if they have lived most of their lives in Australia.
The directive replaces Giles' controversial "direction 99", which drew political fire after it emerged that it had been used by several people with criminal records to escape deportation.
But it also effectively reneges on a commitment Prime Minister Anthony Albanese made to the government of New Zealand in 2022.
Albanese had promised Australia would stop deporting people with criminal histories who had spent most of their lives in Australia, but were New Zealand-born and unable to become Australian citizens. That practice had long angered New Zealand.
Direction 99 put that promise into action by requiring that "primary consideration" in visa decisions be given to a person's connection to Australia.
While it also gave primary consideration to family violence and other serious offending, more than 30 people whose visas were cancelled on those grounds were able to reverse the cancellations before the independent Administrative Appeals Tribunal (AAT) by pointing to their Australian connections.
The group included several people who had been convicted of child sexual abuse and one who was charged with murder last month.
After a week of political pressure from the Coalition, Giles re-cancelled 40 visas and announced he would replace direction 99.
Direction 110
The new direction still gives primary consideration to both criminal histories and connections to Australia.
But the "principles" shaping the direction have changed.
Where direction 99 said the government "will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life," direction 110 only says that it "may" afford tolerance.
And new language states that "the safety of the Australian community is the highest priority of the Australian government".
In similar language to direction 99, direction 110 says "family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa".
And an added section requires primary consideration of "the impact of the offending on any victims of offending ... and their family," which was previously listed as an "other consideration".
Direction 110 also strips back the language about connections to Australia.
It no longer explicitly states that more weight should be given to the fact that a person has children who are Australian citizens or permanent residents, which had been used in several AAT cases. Broader language about "family or social links" is retained.
Giles said the new direction was "crystal clear that the Australian government expects community protection to be given greater weight" and would "elevate" consideration of family violence.
He called it "clearer" and a "common sense approach", and said it was "an important step in ensuring that our migration system is working always in our national interest".
Giles argued this fixed an issue not just with direction 99, but with the coalition-era direction that preceded it. The government has pointed to several coalition-era cases of deportations being overturned for similar reasons.
Coalition home affairs spokesperson James Paterson said he "hoped" direction 110 would be an improvement, "but based on the details we have so far I have no confidence that will be the case".
He criticised the decision to retain community ties as a primary consideration. Opposition leader Peter Dutton said this would not lead to "much change at all".
New Zealand Prime Minister Christopher Luxon said the changes were wrong.
"We regret the decision that Australia has made. From my point of view, I've raised it with Prime Minister Albanese. I know our foreign affairs minister has also raised it with the immigration minister.
"It's just not right that people with no connection to New Zealand are deported to New Zealand. Obviously, it's new news about the new ministerial direction. We need to monitor how that gets implemented going forward."
Luxon would not be drawn on whether Australia had broken its agreement. "A lot of it will depend on how it's implemented going forward."
Luxon said he raised concerns about the change in a recent phone call with Albanese, who assured him Australia would continue to take a "common sense approach" to 501 deportees.
It is not clear how many of the 35 visas the Australian government has 're-cancelled' since the new directive was announced are New Zealanders.
Civil society groups back direction 99
The fresh direction comes as a group of more than 40 legal, civil society and human rights groups issued a statement of concern about the direction 99 debate.
"We are deeply concerned by the ongoing attacks in media and political commentary on ministerial direction 99 and independent decision-making in character matters by the Administrative Appeals Tribunal," the statement read.
"These attacks are misleading and discriminatory and threaten the rule of law."
The group includes the Human Rights Law Centre, the Asylum Seeker Resource Centre and legal groups that have represented non-citizens in deportation cases.
"Contrary to some media reports, ministerial direction 99 involved only minor changes to previous ministerial direction 90. Like every direction before it for more than two decades, [it] asks decision-makers to consider the level of a person's connection to the community - but crucially, it doesn't dictate how the discretion should be exercised.
"Decision-makers often decide that even strong community connections are outweighed by other factors, including protection of the community... [AAT] hearings involve hundreds of pages of evidence and days of testimony [and[ cannot possibly be glossed over in a few cursory paragraphs.
"Everyone in Australia, no matter their background or visa status, deserves to be treated equally before the law [and] have their circumstances fully and independently considered before lifelong consequences are visited on them."
- ABC with RNZ