The targeted erosion of New Zealanders' rights in Australia

On the face of it, Australia and New Zealand are close neighbours, allies and friends.

But over the past three decades, successive Australian governments have chipped away at the rights of New Zealanders living in this country through a string of changes to the law.

The result is New Zealanders can live in Australia and pay taxes without disturbance, but tens of thousands are excluded from accessing social services and from being granted citizenship.

Without protection, Kiwis are disproportionately vulnerable to new immigration measures targeting foreign nationals. They now make up the largest group of people inside Australian immigration detention centres

In 2015-16, two New Zealand-born men died in detention while facing deportation.

So how did it come to this? SBS World News tracks the legal changes that led to this point and looks at out how the situation compares across the Tasman.

1980s: Rules around passports and benefits are tightened

Before the 1980s, Australians and New Zealanders moved easily between the two countries and didn't need to present passports when travelling back and forth. But in 1981, Australia's then-immigration minister Ian Macphee announced that from July that year Kiwis would need to present passports if they wanted to enter Australia. It was a small, yet significant step in the hardening of rules around trans-Tasman movement and immigration.

In 1986, it was announced that New Zealand citizens would need to have lived in Australia for six months before they could get unemployment benefits. Prior to this, New Zealanders were entitled to unemployment benefits upon arrival in Australia.

1990s: Visa introduced that sets Kiwis apart

In 1994, Australia introduced a Special Category Visa (SCV) specifically for New Zealanders. The SCV is automatically granted to New Zealanders upon arrival in Australia, and allows them to live and work in the country.

Years later, this visa would become instrumental in excluding many New Zealanders from accessing social services and citizenship. 

2000s (Part 1): Dramatic legal changes block thousands from citizenship and benefits

In 2000, it was announced that New Zealanders would need to live in Australia for two years before they could access unemployment benefits. This extended from six-months the mandatory time frame introduced in 1986.

In early 2001, the Australian government made changes to the law that meant SCV holders who arrived after February 26 that year would be severely limited in their ability to get Australian citizenship and be ruled ineligible for most social security benefits.

These changes essentially divided New Zealanders into two classes: those who came before 26 February 2001 (the "protected" Special Category Visa holders); and those who arrived after that date (the "non-protected" Special Category Visa holders). 

The visas given to all New Zealanders remained technically the same, however people who arrived in Australia after 26 February 2001 would be required to compete against other foreign nationals for a permanent resident visa - such as a skilled migrant visa - if they ever wanted to become a citizen. Many Kiwis would not meet the criteria.

Those who arrived before 2001 would be regarded as already having a permanent visa and have a relatively straightforward pathway to citizenship. But there was a caveat: those residents would need to prove they had lived in the Australia for 12 of the 24 months leading up to February 26 2001. This rule meant Hollywood actor Russell Crowe was rejected for citizenship twice, despite having lived in Australia since he was four years old, because he had been filming in the UK for large chunks of time leading up to the legal change. 

"No matter how long you'd been in the country, if you weren't in Australia for the majority of 2000 to 2002, when I was particularly busy filming overseas, you can't become a citizen," he said in a 2015 interview. "It's so unreasonable."

Those who came after 26 February 2001 were also blocked from accessing a number of social security benefits - including unemployment and sickness benefits - because the definition of "resident" was changed in the Social Security Act to exclude New Zealanders.

At the time, Australian Democrats senator Andrew Bartlett noted how this change could negatively affect women, particularly those trying to leave an abusive relationship. "A woman in that circumstance will not qualify for any income support,” he said.

Meanwhile children born to non-protected SCV holders in Australia would have to wait until they were 10 years old to be eligible for citizenship. Children born in New Zealand to Australian parents are granted citizenship at birth.

2000s (Part 2): Kiwis denied student loans, victim support and the NDIS

What started as a bad decade for Kiwis residents became worse in 2005. Kiwis who arrived after 2001 were now denied access to HECS/HELP student loans. New Zealanders studying in Australia are charged domestic university fees, but are required to pay them up front.

Things improved in 2011 when the government relaxed rules around disaster relief following the severe flooding in Queensland. A number of New Zealand residents affected by the floods had been denied access to disaster relief payments because they did not meet the "resident" criteria under the Social Security Act. But a public backlash prompted the government to make one-off ex gratia payments to New Zealanders.

In a later report, the government noted: "Following the earthquakes in Christchurch, New Zealand in 2011, affected Australian citizens were assisted under the New Zealand emergency management arrangements." 

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In 2012, legislation was amended to effectively deny non-protected SCV holders access to victim support services in case of a terrorist attack. The updated legislation states that a person must be an Australian resident on the day the terrorist act occurred to be eligible for support. The meaning of "resident", set out in the Social Security Act, excludes non-protected SCV holders.

The following year, a double blow was dealt to non-protected SCV holders when they were denied access to the NDIS - the definition of "resident" in the relevant legislation excluded them, and then told that changes to Medicare legislation meant they would have to pay an increased Medicare levy to fund the NDIS despite them being unable to access the NDIS.

But it's not all bad news - New Zealanders are regarded as residents under the Health Insurance Act, which means they can get Medicare. 

2000s (Part 3): Legal changes trigger mass detention and deportation of New Zealanders

In late 2014, the federal government amended Section 501 of the Migration Act to include a stricter "character test", which means any foreign nationals who have been sentenced to 12 months or more in prison will automatically fail the character test and will have their visa revoked. This law is cumulative and retrospective, meaning people who have served a collection of shorter sentences amounting to 12 months or more in total will qualify.

Foreign nationals can also fail the character test if they are seen to be associating with criminal activity. In 2015, Kiwi war veteran Ngati Kanohi Te Eke Haapu, known as “Ko”, was sent to a maximum security prison where he was held for four months without charge after his visa was revoked because of his association with a motorcycle club. He has since been returned to New Zealand.

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The legislative change affected large numbers of New Zealanders who were deemed to have failed the character test, and informed their visas would be revoked. Those people then had the choice of going back to New Zealand or being placed in an immigration detention centre where they could fight the decision.  

As of 31 May 2017, New Zealanders made up the second largest group of people in Australian immigration detention facilities.

Among those affected was 23-year-old New Zealander Junior Togatuki, who had his visa revoked after serving time in a New South Wales prison for armed robbery. Togatuki had lived in Australia since he was four years old and he wrote in a letter to Immigration Minister Peter Dutton saying he didn't remember anything about his time in New Zealand. "All my family live here in Australia," he wrote. "This is our home. Not New Zealand." 

On September 12, 2015, Junior Togatuki was found dead in his cell at Goulburn’s Supermax prison where he had been awaiting deportation. His death was ruled a suicide. 

LIFELINE  13 11 14

2000s (Part 4): Australian government offers two concessions. Who will they help?

On 1 January 2016, a small number of New Zealand SCV holders were granted access to HELP higher education loans. To qualify, a person would need to have arrived in Australia as a child under the age of 18 and have lived in Australia continuously for 10 years since then. 

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On February 19, in what appeared to be a breakthrough, Australian Prime Minister Malcolm Turnbull and New Zealand Prime Minister John Key announced a new "pathway to citizenship" for New Zealand residents in Australia.

The "pathway" is available for New Zealanders who arrived after 26 February 2001 and before 19 February 2016. To be eligible, applicants must:

- Have been resident in Australia for at least five years immediately prior to application;

- Have earned an income of at least $53,900 per year over the five years and;

- Undergo mandatory health, character and security checks.

Critics say the new arrangement benefits the wealthy and will discriminate against single mothers, disabled and those on low incomes.

The application costs $3,600 for the primary applicant, $1,800 for a dependent child over 18 and $900 for a child under 18.

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In April, 42-year-old New Zealand man Robert Peihopa died inside Villawood Detention Centre where he was waiting to be deported. The Department of Immigration and Border Protection said Mr Peihopa died of a heart attack but his family rejected this account, citing reports he had been involved in a fight inside the detention centre.

In July 2016, the ABC requested information about Mr Peihopa's death under Freedom of Information laws but the department released a report that was almost completely blacked out, prompting further questions about the apparent secrecy surrounding the father-of-three's death.

What rights do Australians living in New Zealand have?

See how the two countries compare in this table, compiled by advocacy group Oz Kiwi:

1. "Protected’"and "non-protected" SCV holders’ entitlements and rights depend on the date they first arrived in Australia.  See slide three for more information.

2. Non-protected SCV holders may be eligible, after 10 years of continuous residence in Australia, for a one-off payment of Newstart, Sickness, or Youth Allowance for up to six months.

Useful resources for Kiwis in Australia

- How to become an Australian citizen
- Are you eligible?
- What is a Special Category Visa?

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