The government has just announced plans to strengthen New Zealand’s immigration laws to make it easier to deport residents convicted of serious criminal offences. Under current law, permanent residents of up to ten years standing who have been convicted of criminal offences can be deported after release from prison. However, the term of their deportation depends on the nature and seriousness of their offending. The government’s new plans significantly broaden the scope of the existing policy. It is planning to increase the time frame to residents of twenty years standing and also includes historic crimes, committed before the person came to New Zealand,

These announcements will likely be welcomed, especially by those concerned about community safety and the risk they consider released offenders pose to the community. As such, the announcements – reported in the media as making it easier for the government to deport non-New Zealand criminals – will play well as part of the government’s tough law and order agenda.

And it will be easy for the government to portray parties opposing the moves as “soft on crime and criminals”. With an election looming next year, and law and order always being an important issue, that will be no bad thing as far as the government is concerned. 

However, there is a certain irony in these announcements. For years, successive National-led and Labour-led governments have railed against Liberal/National coalition and now Labor Australian governments for their notorious s.501 policy. Under this policy many Australian criminals, born in New Zealand and often with the most tenuous remaining links to this country have been deported here once released from prison in Australia.

So, as it now moves to strengthen New Zealand’s deportation rules, our government will need to be very mindful of the consistent and outspoken approaches various Prime Ministers have made over the years to their Australian counterparts about the s.501 policy and potential risk of claims of hypocrisy it now raises.

Indeed, on the same day the Immigration Minister was announcing New Zealand’s proposed changes, the Prime Minister was attacking calls from Australia for the deportation to New Zealand of neo-Nazi Thomas Sewell because he was born here and holds dual Australian and New Zealand citizenship. While he is undoubtedly “a pretty awful human being” as the Prime Minister described him, Sewell has so far not been convicted of any crimes that would lead to his deportation from Australia, so he is unlikely to become a victim of the s.501 policy, and thereby New Zealand’s problem, despite more than 88,000 Australians having signed a petition calling for his deportation.

In the circumstances, the Prime Minister’s comments that Sewell is Australia’s problem were ill-timed, given his own government’s deportation announcements the same day. The risk is they will further embolden hard-line politicians on both sides of Australian politics to dig-in further against any softening of the s.501policy insofar as New Zealand is concerned. They know that, as in New Zealand, cracking down on migrants who break the law is good domestic politics.

However, it must be acknowledged that all sovereign nations – New Zealand and Australia included – have a right to protect their citizens against the risk imposed by foreign criminals and to deport those non-citizens who seriously offend to their countries of origin. The right to citizenship and residence in any country must always be conditional on acceptance and compliance with the laws of that country. The issue around deportation is therefore less about the right of countries to deport those who are not citizens who have criminally offended, than it is about the reasonableness of such actions.

In that context, there is a legitimate argument about the reasonableness of Australia deporting to New Zealand people who have not lived here since childhood and who no longer have any substantial family links here. However, in the same vein, it was only a few weeks ago that Immigration New Zealand was threatening to deport a teenage boy to India for being an overstayer, despite the fact his family was legally resident in New Zealand and he would have no means of familial or other support in India. Government officials contemplating this move and Ministers who initially supported it failed to see the hypocritical parallel until the last minute.

For this reason, many will argue that as it moves to strengthen its deportation laws New Zealand should be mindful of the reasonableness test, and not get itself into the type of s.501 mess Australia has. But there will also be more cynical voices – inside and outside government – arguing precisely the opposite, that, for domestic political reasons, having a deportation policy that is criticised externally as unreasonable and excessively xenophobic will play well for the government in election year.

With ACT and New Zealand First being the glue holding the Luxon-led coalition together, it is hard to escape the conclusion the latter view is the more likely driver of the new policy direction.