'Irrationally harsh': Australia’s deportation laws among strictest in western world

Australia wants to strengthen its character test, which will make its deportation policy among the toughest in the world.

Commuters are seen in Town Hall station during peak hour in Sydney, Tuesday, August 7, 2018. Australia's population is expected to hit 25 million on Tuesday evening. (AAP Image/Erik Anderson) NO ARCHIVING

The government cut the permanent migration cap in a bid to reduce congestion. Source: AAP

Australia’s hard-line approach to deporting foreign criminals is tougher than the United Kingdom, United States and New Zealand, international law experts say.

Having already deported 4,700 foreign criminals from Australia in the past six years, the government wants to extend its crackdown to offenders that haven’t served jail time.


Senior researcher at the Andrew and Renata Kaldor Centre for International Refugee Law, Sangeetha Pillai, has examined other countries’ approaches to foreign criminals.

The number of people who have had their claims rejected after arriving by air increased to nearly 50,000.
The number of people who have had their claims rejected after arriving by air increased to nearly 50,000. Source: AAP

While it’s difficult to make a direct comparison, Ms Pillai said the proposal to lower the criminal threshold, combined with a lack of protections for children, long term residents from New Zealand and refugees, sets Australia apart.

“It’s harsh, but unnecessary, irrationally harsh," she said.

“This bill is harsher to minors than the current provisions. It’s harsher to long term residents from New Zealand than the current legislation is. It’s harsher to refugees than the current legislation is.

“But it doesn’t actually create any additional power to protect against people that genuinely form a threat.”

The Australian Human Rights Commission recommends taking a similar approach to New Zealand, which takes into account a non-citizen’s connections to their new home and accepts a greater level of responsibility for long term residents.

“In the Commission’s view, by building in a degree of proportionality, the New Zealand model adopts a more human rights compliant approach,” the commission stated in its submission to an inquiry into Australia’s character test.

So how do other countries deal with foreign criminals on their soil?

New Zealand

Kiwis have felt the brunt of Australia's hard-line deportation policy, but hasn't retaliated by strengthening its policy. 

While 50 per cent of people deported from Australia are sent back to New Zealand, just 1 per cent of total deportations from New Zealand are to Australia. 

That's partly because our Trans-Tasman neighbours adopt a sliding scale where the risk of being deported for a crime depends on the length of stay in the country. 

Prime Minister of Australia Scott Morrison (left) and Prime Minister of New Zealand Jacinda Ardern are seen at at 4 Treasury Place in Melbourne, Friday, July 19, 2019. (AAP Image/Julian Smith) NO ARCHIVING
Prime Minister Scott Morrison was unmoved by NZ Prime Minister Jacinda Ardern's complaints about Australia's deportation policy. Source: AAP

If a non-citizen has had a residence visa for less than two years, they could be deported for a crime which carries a term of imprisonment of just three months. 

If they have lived in the country for between two and five years, the crime must carry a penalty of at least two years in jail, while those that have legally resided in the country for more than 10 years can't be deported. 

United Kingdom

Similar to Australia, any foreign criminals sentenced to at least 12 months in jail faces mandatory deportation from the UK.  

The courts also have the power to recommend any non-citizen over the age of 17 convicted of a crime punishable by imprisonment of less than a year for deportation. That recommendation is then assessed by the UK Visas and Immigration agency. 

However, unlike Australia there are exceptions for returning refugees to countries where they are at risk of torture or inhuman or degrading treatment or punishment.  

United States

While US President Donald Trump is known for his tough stance on illegal immigrants, the country's treatment of foreign criminals is complex.

The US has determined a range of crimes that may warrant kicking out a non-citizen, known as an "alien" under the law. 

Guatemalan, who were deported from the United States, leave the Air Force Base after arriving in Guatemala City, Tuesday, July 16, 2019.
Guatemalans, who were deported from the United States, leave the Air Force Base after arriving in Guatemala City. Source: AAP

Those crimes include ones that involve "moral turpitude", drug offences, firearm offences, some types of aggravated felony and domestic violence and child abuse. 

Like the UK, the US provides exceptions for refugees, meaning they can't be removed to a country where their freedom would be threatened or they could be tortured. This can lead to convicted criminals who are unable to be deported being detained indefinitely or sent to a third country.  


The government strengthened the character test in 2014 to introduce mandatory visa cancellations for non-citizens who commit a crime and are sentenced to 12 months or more in jail. 

That led to a spike in deportations, with 4700 foreign criminals kicked out of Australia, the majority of which were from New Zealand. 

The minister also has discretionary power to deport someone on character grounds if they are deemed to pose a threat to the community. 

Minister for Immigration David Coleman during Question Time in the House of Representatives at Parliament House in Canberra, Wednesday, February 20, 2019. (AAP Image/Dean Lewins) NO ARCHIVING
Australian Immigration Minister David Coleman. February 20, 2019. Source: AAP Image/Dean Lewins

Under proposed changes introduced by Immigration Minister David Coleman, anyone who commits a crime carrying a maximum penalty of at least 12 months will automatically fail the character test. It will still be up to the minister to determine if they should be deported or not, but the change will reduce non-citizens grounds to appeal. 

The current and proposed legislation does not exempt refugees or direct decision makers to consider the visa holders' length of stay in Australia and connection to the community. 

5 min read
Published 9 August 2019 at 8:00am
By Rosemary Bolger