September 18, 2024
Labor has quietly scrapped a ministerial direction ordering the deportation of bridging visa holders who are charged with an offence or placed under investigation, prompting the Coalition to escalate its attack on Anthony Albanese's record on national security.
In January, former immigration minister Andrew Giles revoked the longstanding direction that set out the commonwealth's "expectation" that Bridging Visa E holders should be stripped of their right to remain in Australia if they are charged with a crime or investigated by law enforcement.
The policy, known as Direction 63, has drawn criticism from lawyers for undermining the presumption of innocence by cancelling visas before a person is found guilty of a crime since it was introduced by then-immigration minister Scott Morrison in 2014.
Direction 104 came into effect in March and directly overruled the function of the decade-old direction.
As the government scrambles to manage an influx of refugee applications from Palestinians fleeing the Israel-Hamas war, opposition home affairs spokesman James Paterson has raised concerns about the security implications of the new direction.
"Tony Burke must come clean and explain why the Albanese government revoked ministerial Direction 63," he said.
"This is a direction that has been in place for a decade and required decision makers to take a tough approach and cancel visas of people who pose a risk to our community." Senator Paterson said it was difficult to understand why Labor believes a "softer approach" on foreign criminals is in the nation's interests.
"Was this to make it easier for Gaza tourist visa recipients to stay in the country, even if they failed the character test?" Senator Paterson said.
"Anyone here on a temporary visa who breaks the law or poses a threat to the community should be deported, not accommodated." But Home Affairs and Immigration Minister Tony Burke denied community safety had been compromised.
"If you're on a visa you are here as a guest and the expectations of the community and the Dumped direction fuels security fears government are simple: obey the law," he said.
The minister retains the discretion under Direction 104 to intervene and cancel visas of people who have been charged with a crime.
Concerns about security screenings for migrants from Gaza and the West Bank are set to become an election issue after Peter Dutton called for a pause on arrivals from the Middle East war zone until stronger immigration checks and vetting processes could be implemented.
The Albanese government has permitted Palestinians to arrive on tourist visas, with more than 1300 arriving in Australia since October 7. The latest figures show at least 915 Palestinians in Australia had claimed asylum since the conflict began, with those applicants being transferred to bridging visas while awaiting a decision on their long-term status.
Australian Lawyers Alliance spokesman and barrister Greg Barns said Direction 63 had been an "extraordinarily unfair" policy, which undermined the rule of law and subjected non-citizens to extreme prejudice compared to Australian citizens.
"Direction 63 was outrageous; it undermined the presumption of innocence, and in many cases people were found not guilty," he said "Though in some cases people were found guilty, it was a disgraceful undermining of the rule of law, and this government was absolutely right to repeal it." Immigration lawyer Carina Ford said Direction 63 was controversial because "there have been cases where a person has been charged and then had the charges dismissed, or were found not guilty".
In 2016, the Commonwealth Ombudsman raised concerns about the law's ability to "suddenly deny a person their liberty" based on mere allegations, in a report on bridging visa cancellations. "It is important to remember that a fundamental principle of the Australian common law is the presumption of innocence," it said.
Labor is also bracing for the release of key net overseas migration data on Thursday, which will shed light on the extent to which the government has succeeded in reining in migration to its goal of 395,000 in 2023-24.
Opposition immigration spokesman Dan Tehan said indicative figures from the Australian Bureau of Statistics suggest that as many as 463,150 net longterm and permanent migrants have arrived in Australia in the past financial year, meaning that Labor is likely to overshoot its target.
"The Albanese Labor government made a commitment to halve migration from its record high of 528,000 a year but based on these figures they will miss their migration target again," Mr Tehan said.
Direction 63 stipulated that the legal grounds for cancelling visas for non-citizens who are charged with or convicted of a crime should be "applied rigorously", and "every instance of noncompliance" should be consideration for cancellation.
The Australian understands under Direction 63 a bridging visa holder who had been charged with an offence would be placed in immigration detention while the justice system runs its course after their visa was cancelled.
"Where Bridging E visa holders are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour or being of security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing," Direction 63 stated.
