By David Speers
The immigration minister's problems can be traced back to a meeting that Australia Prime Minister Anthony Albanese (left) and former New Zealand prime minister Jacinda Ardern had in 2022. Photo: Pool / Mark Baker / AFP
Analysis - Andrew Giles is still standing as immigration minister and the prime minister has no intention of sacking him.
But a scramble has begun to fix the latest immigration mess that, this time, can't be blamed on the High Court.
In fact, it's a mess that can instead be traced back to a meeting of two prime ministers on the shores of Sydney Harbour nearly two years ago.
New Zealand's Jacinda Ardern was the first foreign leader to visit Anthony Albanese after his election win. They had dinner at Kirribilli House, followed by more formal talks the next day.
The two leaders had known each other for years and both were enthusiastic about "re-setting" the trans-Tasman relationship, which had developed a major sticking point during the Abbott-Turnbull-Morrison years.
In late 2014, section 501 of Australia's migration law was changed to require mandatory visa cancellations for any non-citizens sentenced to jail for 12 months or more, or those convicted of a child sex offence.
Thousands of New Zealanders who had served time in Australian jails were deported in the years that followed, including some who had spent most of their lives in Australia and had little or no connection to their country of birth.
They were known as the "501 deportees" and New Zealand felt Australia was dumping these ex-convicts on its soil, where they had no family or other networks. Over the years, alarm grew at their rate of re-offending, as did the political pressure on Ardern.
The New Zealand prime minister would regularly vent frustration with her Australian counterparts, most famously telling Scott Morrison at a joint press conference: "Do not deport your people and your problems."
Despite the very public pressure, Morrison proved to be as much of a brick wall on this as his Coalition predecessors. The then-prime minister refused to budge.
When Australia elected a new government, Ardern had a fresh opening.
A fortnight after Albanese was sworn in, the two prime ministers discussed the deportations during their meeting in Sydney. "This does represent a reset," Ardern declared after the talks.
While Albanese didn't announce any immediate change, he did make a commitment to "work through with our department, work through the implementation of the way that Section 501 has been dealt with".
"We've listened to the concerns and there's more work to do," he said.
Watch Jacinda Ardern's media stand-up on 10 June 2022 after the meeting:
Enter Direction 99
That work culminated early last year in Immigration Minister Andrew Giles issuing Direction 99 to "decision makers", both in his department and at the Administrative Appeals Tribunal (AAT).
The new direction listed five "primary considerations" to be weighed when deciding whether to cancel someone's visa. For the first time, this list of primary considerations included "the strength, nature and duration of ties to Australia".
In other words, a more lenient approach should be taken towards those who've spent a long time here.
Direction 99, however, also specifically listed some offences that are "so serious that even strong countervailing considerations may be insufficient". These include family violence, forced marriage, violent or sexual crimes against women, children, disabled or elderly people, human trafficking, people smuggling, and worker exploitation.
The intention here was to clearly spell out which crimes should still result in automatic expulsion of a non-citizen, regardless of "ties to Australia".
Although the words "may be insufficient" clearly left room for interpretation. We now know the Administrative Appeals Tribunal appeared to ignore that part of the ruling, and gave great weight to the new consideration of "ties to Australia".
It decided to allow all sorts of offenders to stay in Australia, including a serial child rapist, a man who raped his stepdaughter while his wife was giving birth in hospital, and a suspected people smuggler.
When this all came to light over the past week, through a series of damaging headlines, Giles expressed surprise.
"Some of the AAT decisions are very hard to reconcile with any sense of the expectations of the Australian community, or frankly common sense," he told the ABC's Afternoon Briefing.
Bizarrely, it also emerged he'd been kept in the dark about all this by the Home Affairs Department. "The department did fail him," a chastened Home Affairs Secretary Stephanie Foster told a Senate hearing. "We did not meet our agreed protocol and in particular we did not put advice before him in any way."
Giles described that failure as "completely unacceptable". It's unclear whether any heads will roll.
The mess puts further pressure on the minister
The minister might feel he's been let down by his department and misinterpreted by the AAT, but as the Opposition points out, Direction 99 still carries his signature. And under the Westminster system, he is ultimately responsible.
Giles, however, has no plans to quit. Instead, he's racing to fix the mess. He says a new ministerial direction is being written and stress-tested. He says it will "ensure better decisions are made in line with the expectations of the government and the community".
The prime minister, also in damage control mode, told parliament the new directive would "ensure that the protection of the community outweighs any other considerations".
The Coalition argues the clean-up has come too late. The mess, they say, should have been avoided altogether.
Reflecting on the pressure he faced from New Zealand at the time, Morrison told the ABC: "These measures were put in place for good reason and you tinker with them at your own peril."
Labor, it appears, wasn't alive to that peril.
The Albanese government may have wanted to mend fences with New Zealand, but apparently no-one in the government was keeping an eye on how Direction 99 was being interpreted by the AAT.
The minister, already in the opposition's sights, is now under added pressure.
Albanese, however, has no intention of removing Giles from the role. He sees virtue in having kept his entire ministry intact for two years and doesn't want to give the opposition a scalp.
Some fellow cabinet ministers point to Giles's closeness to Albanese and the fact no-one else particularly wants the job as factors that will likely help the minister survive.
Giles at least found something yesterday with which to return fire.
At a Senate estimates hearing, the Home Affairs Department revealed four murderers, 40 child sex offenders and 64 domestic violence perpetrators were released from immigration detention during Peter Dutton's time as minister for immigration and home affairs.
With his back to the wall, Giles at least has Albanese's support and some ammunition to use against Dutton as the blowtorch continues to be applied.
- This was first published by the ABC