The issue of New Zealand citizens in Australian immigration detention, including at offshore centres such as Christmas island, has been raised in LawPoints, a publication of the New Zealand Law Society.
There are approximately 200 New Zealand citizens in immigration detention, many likely awaiting the outcome of appeals on deportation decisions.
Some 40 of these are detained at Christmas Island, a remote facility off the coast of Western Australia.
These detainees may have claims against the government for their treatment, according to a recent article written for LawPoints by James Greenland.
Amendments to Australia’s migration laws in 2014 have given considerably broader powers to the executive to make and implement decisions about deportation.
New Zealand citizens, who have the right to live in work in Australia under longstanding arrangements, may find themselves subject to deportation if they are convicted of certain criminal offences.
An SCV [Special Category Visa] entitles New Zealanders to live and work in Australia as long as they wish, provided they remain of good character. It is however a temporary visa. The Australian authorities can cancel an SCV if a person fails the character requirements (e.g. if they commit a crime). The person would likely then be sent back to New Zealand and may be unable to enter Australia again. If the person cannot be returned to New Zealand immediately, they may be placed in immigration detention in Australia. – New Zealand High Commission Canberra, Australia
Action to deport often comes as a shock, particularly where a person may have lived in Australia for a long time and when the action seemingly comes out of the blue.
The conditions of detention are “repugnant and unnecessary”, says human rights lawyer Craig Tuck, who is quoted in Greenland’s article. Worryingly, there is a general lack of concern, within both Australian and New Zealand government circles, about the issue and the treatment of detainees in immigration detention.
While there are practical difficulties facing those who may wish to take legal action against the government in respect of their treatment or in respect of the substantive decision to hold them for deportation, there are options according to Greg Barns, a barrister based in Hobart and a spokesperson for the Australian Lawyers Alliance.
Barns says individuals have the right to bring legal action to have their place of detention transferred from “remote and hostile Christmas Island to the Australian mainland”.
The deportation decision can also be appealed if the Minister has made an error of law.
Lawyers have frequently decried the difficulty of taking proper instructions from persons detained in remote locations and the lack of public funding, through Legal Aid, for such cases.
Considerations of fairness and the proper application of legal procedure do not seem to rank highly in the government thinking on the issue.
Barns says “the amendments to Australian migration laws last year were driven by politics” and “not with the rule of law in mind”.
The LawPoints article is available here.