The federal government is under scrutiny over its handling of criminal non-citizens. As migration issues resurface in the headlines, the government faces significant challenges.

During its campaign, the government emphasized that its immigration policies were nearly identical to those of the Opposition. However, migration has once again become a contentious issue for the Labor Government, highlighting its vulnerabilities.

A pivotal moment came with the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs. This case disrupted the concept of indefinite detention. NZYQ, a convicted criminal, was released from detention after the High Court deemed his indefinite detention punitive and unlawful under the Migration Act. This ruling forced the release of many detainees in similar situations, causing a major blow to the government’s credibility and raising questions about its preparedness.

As detainees were released, some committed serious offenses, further exacerbating the government’s challenges. The government assured the public of strict monitoring and surveillance of the released detainees, but gaps between promises and reality soon emerged.

The situation worsened with the fallout from a previous policy decision aimed at appeasing New Zealand. In June 2022, then-Prime Minister Jacinda Adern lobbied for a change to Australia’s immigration policy, specifically targeting Direction 90, which allowed the deportation of criminals based on character grounds. The subsequent Directive 99, issued by the Labor Government, added a new consideration for visa reinstatement: the applicant’s ties to Australia. This change led to the restoration of visas for many criminals, complicating the government’s position.

The Minister for Immigration, Citizenship and Multicultural Affairs faced criticism as the number of restored visas increased. Although the Administrative Appeals Tribunal (AAT) was following the new directive, the government appeared unprepared for the resulting outcomes.

This issue has highlighted the conflict between public policy and legal decisions, and the government’s struggle to manage both effectively. The introduction of Directive 99, while intended to address concerns from New Zealand, had broader implications, leading to the reinstatement of visas for individuals with criminal records, despite the government’s efforts to appear tough on immigration.

The ongoing debate around migration, the independence of courts and tribunals, and the unforeseen consequences of policy changes are set to be major topics in the next federal election. The situation underscores the complexity of immigration policy and the importance of careful legislative and regulatory planning.

For lawyers, this scenario serves as a reminder of the independence of the judiciary and the potential for legal decisions to disrupt government policies. The separation of powers remains a crucial principle in navigating these challenges.