Should we be sentencing criminals to transportation?

Yesterday’s Age reported the case of Andrew Moore, who died in England of a heroin overdose. Two days before he died, Moore had been removed from Australia after his visa had been cancelled on character grounds.

The interesting aspect of this case is that, as in a number of similar cases in recent years, Moore was in all but law an Australian. Originally from Scotland, he’d lived here for 32 of his 43 years. But he had never taken out Australian citizenship. People in this situation who are convicted of a crime and sentenced to imprisonment of 12 months or more can have their visas cancelled, and be sent back to the country they originally came from.

Moore’s crime – manslaughter – was a lot more serious than just one involving a year in jail, and he was a junkie and a drunk as well. Unlike other ‘Australians’ sent back to their birth countries, he could at least speak its language. But this practice of throwing people out of the country on what looks like a technicality does seem problematic to me.

It means that imprisoning long-term non-residents can be tantamount to also sentencing them to transportation. This makes the penalty disproportionate to the crime and more severe than other people who committed the same crime would receive. Given the broader ties to Australia that long-term residents have – for example a teenage son in Moore’s case – a removal can have serious consequences for them as well.

And while there are some nice historical ironies in dumping Australia’s lowlife in Britain after the many decades during which they dumped their lowlife here, I’m not sure that this is a good practice for maintaining positive relations with other countries.

The history to this system is told in Glenn Nicholls’ excellent book, Deported: A History of Forced Departures from Australia. The Hawke government reformed deportation law so that people who have been here longer than 10 years, not including time in jail, cannot be deported. That law still stands, but is ineffective because there is a separate power, with no time limit, to cancel visas. When a visa is cancelled people can then be removed as unlawful non-citzens. (I’m not quite clear on the legal distinction between deportation and removal, but the effect is the same.)

The Hawke government’s policy seems to me to strike a balance between competing considerations. It is sensible to protect the Australian community from people with criminal propensities. But there also comes a point at which Australia seems more responsible for people than the country they were born in, when removing someone to a foreign country would be an unwarranted cruelty, and when the emotional and other interests of Australian citizens in the person have to be given significant weight. Whether ten years here is the right test I cannot say, but something along those lines seems necessary.

Most permanent residents do eventually seek citizenship. Cases like this are a reminder of why they should – and all the more so if they have kids or come from a country to which they would not want to return.

17 Responses to “Should we be sentencing criminals to transportation?

  • 1
    Guy
    April 20th, 2010 19:15

    Agreed – the current practice seems to encourage governments to do their best to “wash their hands” of people and dispense with responsibility wherever possible. In this case it has ended badly. Presumably in numerous other cases we don’t hear very much about, things also end badly.

  • 2
    Son of the Ratpack
    April 21st, 2010 07:42

    The United States sets the benchmark on these matters, as with so much else in the field of law enforcement. They deported a Cambodian back to Cambodia who had been living in the US since the age of two.

  • 3
    Sinclair Davidson
    April 21st, 2010 07:58

    I don’t understand the problem. He either was an Australian or he was not. If not he could be deported, and he was. He couldn’t make the minimal effort to become an Australian citizen nor, it seems, the more substantial effort to obey the law of the land.

  • 4
    Liam
    April 21st, 2010 08:30

    Sinclair, if he had even a trivial criminal record then he would have had difficulty passing the character test for citizenship.
    The other policy problem with deportations like this is that if we keep doing it, there’s no reason why other countries shouldn’t simply empty their jails and mental hospitals of expensive damaged Australians.

  • 5
    Baz (the ordinary Aussie)
    April 21st, 2010 09:03

    Oh come on A-nort…So disappointed on this one…..We got hospital waiting lists, sky rocketing housing prices, ever creeping government intervention, que jumpers and all the rest, and you want to worry about some criminals??? Pah-lease!
    If you commmit a crime, get em out of here. The community doesn’t want them here. We hurt their feelings…well booo hooo. As for the kiddies…too bad. This should set a good deterent against aliens commiting crime. As for upsetting foriegn sensibilities, let’s get some back bone. Complete non-issue.
    In fact, what is it you an non-citizens. You seem more worried about non-Aussies than you’re country-men. I think you forget that we elect the Aussie Government to govern for Australia and Australians…not for potential ones, not for pretend ones, not for foreign criminals . If you do wish to put the welfare of aliens over citizens, perhaps you’re in the wrong country. Otherwise, might be time to take a step out of Carlton.

  • 6
    Andrew Norton
    April 21st, 2010 10:17

    Baz – This blog is about issues I think are interesting, not issues you think are important.

  • 7
    caf
    April 21st, 2010 11:19

    But there also comes a point at which Australia seems more responsible for people than the country they were born in…

    This seems like the crux of the matter to me. If he’s been here continuosly from the age of 11 to the age of 43, it seems to me that he ought to be our problem, for better or for worse.

    At some point, “permanent resident” really ought to mean what it says.

  • 8
    Errol
    April 21st, 2010 11:22

    Spot on Andrew.. even though I don’t agree with your views on lots of things, I find it good to have my views tested by a counter opinion.

    I never realised that being in Australian meant shedding your concern for humanity.

  • 9
    Baz (the ordinary Aussie)
    April 21st, 2010 12:38

    Fair enough mate…it is your blog….Just a passionate bloke is unsure why you barking up obscure trees

  • 10
    Sinclair Davidson
    April 21st, 2010 15:46

    Liam – I don’t understand either of your comments. He should have made the effort to become an Australian before his character defects became apparent, and then made the effort to obey the law.

    I have no problem with criminal Australians being brought/sent home – in fact, I understand, the Australian government tries to get Australians home to serve their time here anyway.

  • 11
    Jeremy
    April 21st, 2010 16:41

    Clearly you’re out of step with ordinary Aussies, Andrew :-)

  • 12
    Rebecca_23
    April 21st, 2010 20:44

    Would it be out of line to suggest that we deport criminals who are Australian citizens back to their country of ethniticty?

  • 13
    Andrew Norton
    April 22nd, 2010 05:05

    Rebecca – Yes, it undermines the whole concept of citizenship.

  • 14
    Son of the Ratpack
    April 22nd, 2010 05:29

    Could be problematic with Aborigines, who are relatively highly represented in the population.

  • 15
    caf
    April 22nd, 2010 12:20

    Rebecca: The UK would probably not be impressed if we tried to send every local crim with British ancestry back to blighty!

  • 16
    john malpas
    April 22nd, 2010 14:45

    Back in the 60s Australia was glad to accept a lot of doctors who were told they could retain their British citizenship should they want too.
    Then recently a court sudenly turned there people into virtual aliens.
    Why not take Australian citizenship ?
    1 The change in law unilaterally shows you can’t really trust Australia.
    2. It is not really a citizenship you get as you can still be deported if you commit a crime. And they are inventing new crimes all the time. eg hate crimes.
    3 They made a point that Australia is really owned by the aboriginals under land rights.
    4 If you get in trouble outside Australia I suspect the UK will help its citizens more than the Australian Goverment will.

  • 17
    Andrew Norton
    April 22nd, 2010 16:23

    John – I’m not sure what you are talking about. People can still retain British citizenship along with Australian citizenship. You cannot be deported if you are a citizen. What have aborigines got to do with it? There has not been any recent court case that changed the status of British migrants in general – other than the High Court case some years ago that required MPs to renounce other allegiances.

    There was no Australian citizenship until the late 1940s; Australians were British subjects. For quite some time Australians were both, and hence the limited distinctions between the two legal categories meant that British migrants enjoyed more rights as migrants than non-British migrants. But this became anachronistic, and from the early 1970s special treatment of foreign British subjects was gradually eliminated.