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SCOTT:

From Schwartz Media. I’m Scott Mitchell, This is 7am.

People facing deportation, convicted of serious crimes like domestic violence, child sexual abuse, and more, have managed to hang onto their visas and stay in Australia.

In Canberra, the debate has boiled down to one question: who is to blame?

But, why are non-citizens in Australia being allowed to stay after they have served their time? Why are tribunals finding they shouldn’t be deported? And is the system working?

Today, columnist for The Saturday Paper Paul Bongiorno, on why it all boils down to a little document called ‘Direction 99’.

It’s Friday, May 31.

SCOTT:

Paul, tempers in Parliament boiled over this week during Question Time on the subject of immigration, and I want to begin by asking, in your years in Canberra, how does what we've seen this week rate in terms of ugliness and anger in the chamber?

PAUL:

Ahh well, Scott, everyone talks about wanting a kinder and gentler politics. Tony Abbott said that about 13 years ago, but the stakes are too high to let niceties get in the way, especially in the run down to the election. Look, I have seen worse, but in Speaker Milton Dick we do have someone making a good fist of keeping the lid on.

Audio Excerpt - Milton Dick, Speaker of House of Representatives:

“I want to be very clear with everyone. When someone is entitled to a point of order, whether it be the Deputy Leader of the Opposition, the Leader of the Opposition, or any member of the House, they're going to be heard in silence. It's not commentary time.”

PAUL:

Dick was kept very busy on Wednesday, handing out warnings and batting away points of order, as Question Time was dominated by the issue of criminal foreigners being allowed to remain in the country.

Audio Excerpt - Peter Dutton:

“The Albanese Labor government's watering down of the law has allowed this criminal to stay in Australia, making our country less safe. When will the Albanese Labor government apologise for this catastrophic mistake and reverse Direction 99?”

PAUL:

While many were uncomfortable with the tone of the debate. One was the Independent MP, Monique Ryan.

Audio Excerpt - Monique Ryan:

“The opposition all week has provided us with unnecessary details of the country of origin and the alleged crimes of people.”

Audio Excerpt - House of Representatives:

[Yelling]

Audio Excerpt - Milton Dick, Speaker of House of Representatives:

“Order. Order! Order! No. Order.”

PAUL:

She objected to how details of crimes in the country of origin of these people were being used. She said it's gratuitous, unparliamentary and a dog whistle to racist attitudes.

Audio Excerpt - Milton Dick, Speaker of House of Representatives:

“It's to the chamber, with respect, when they take a point of order. And I'll hear from the member for Kooyong.”

Audio Excerpt - Monique Ryan:

“The Parliament does not need to hear the details of the alleged or prosecuted crimes of these individuals in posing these questions. It’s unparliamentary and it's dog whistling.”

PAUL:

This drew howls and interjections from the opposition benches, which in turn saw the Leader of The House, Tony Burke, intervene.

Audio Excerpt - Tony Burke:

“Just to raise a further point of order, because it has to be raised immediately, particularly when members of the crossbench raised points of order. There is a level of aggression and shouting, led by the leader of the opposition that, no, that, it is, it's quite different to what I just got then.”

PAUL:

But Scott that wasn't the end of it. The opposition immediately responded with furious Paul Fletcher, manager of opposition business, leaping to his feet. He said that naming the countries of origin and these historic charges in the questions was very relevant. So, these facts were necessary to make the questions intelligible.

Audio Excerpt - Paul Fletcher:

“And are they strictly necessary to make the question intelligible? Absolutely they are. In each case, we have seen appalling acts of violence and this absolutely goes to the public policy question, which needs to be determined here.”

PAUL:

You see, Scott, this very bruising and ugly argument is the latest chapter in the immigration debate. And it really kicked off last year with the High Court decision, and is picking up steam with Peter Dutton's promise to reduce the immigration intake, and he's put immigration front and centre of his election strategy. But the latest development in this imbroglio comes down to the direction the immigration minister gives to the tribunal and other decision makers on visa applications. It's something called Direction 99.

SCOTT:

Right, Paul, what is this Direction 99?

PAUL:

Well, Scott, this is where Immigration Minister Andrew Giles comes in. He's been in the crosshairs of the opposition all week with increasingly strident demands that he be sacked. Ministers can issue directions on how bureaucrats and the Administrative Appeals Tribunal should interpret deportation law and act accordingly. These directions aren’t new legislation, and they don't need to pass parliament. They're essentially guidance notes, but they're pretty important.

Well, last year, Giles issued Direction 99 for decision makers who look at when to cancel someone's visa because of criminal activity. It's an update on directions that have been issued by many immigration ministers over the years, including Peter Dutton in 2014. It listed five primary considerations to be weighed when decisions are being made and, for the first time, this list included the strength, nature, and duration of ties to Australia. Well, the opposition is making the case that this direction had led to more people with criminal convictions being allowed to stay in Australia. And earlier this week, Peter Dutton cited an example of a child rapist who was, he claimed, able to use Direction 99 to have the AAT reverse his visa cancellation.

Audio Excerpt - Peter Dutton:

“Thank you very much, Mr. Speaker, my question is to the Minister for Immigration. An immigration detainee, referred to as CHCY, had his visa cancelled after he was convicted of raping his 14 year old stepdaughter whilst his wife was in hospital giving birth.”

PAUL:

But, Scott, these cases at the tribunal are administrative law and no government of the day has direct control over the outcomes.

Audio Excerpt - Andrew Giles:

“I remind the Leader of the Opposition, and all members, that this was a visa that was cancelled and remained cancelled by my department in line with Ministerial Direction 99.”

PAUL:

Anthony Albanese forcefully and pointedly returned to the chamber later in the week with very similar examples during Peter Dutton's own time with responsibility for immigration.

Audio Excerpt - Milton Dick, Speaker of House of Representatives:

“Prime Minister has the call.”

Audio Excerpt - Anthony Albanese:

“Yes, Mr. Speaker, I suspect the leader of the opposition knows what's coming. Because when this bloke was the Home Affairs minister, for example, the tribunal decided that the Iranian heroin dealer and ice manufacturer, known as YKZZ, should be allowed to stay. The tribunal cited Direction 79 and the higher level of tolerance as an important reason.”

PAUL:

He accused Dutton of wallowing in hypocrisy.

Audio Excerpt - Anthony Albanese:

“There's hundreds of them. Hundreds of them. He knows about it. He sits, he sat there, he sat there wallowing in his hypocrisy, Mr. Speaker. Wallowing in his hypocrisy and yesterday was the...”

PAUL:

He said the examples were only some of hundreds of criminal residents who, in Dutton's time, were released into the community or allowed to stay after charges. But it's important to note, in all of these cases we are talking about people who have served their prison sentences. And that was long before any High Court decision that sparked the opposition's decision last year to politicise this issue, to weaponise it against the Labor government.

SCOTT:

Right, Paul, and all of this focus on who has allowed who to stay at what time, and how long the criminal histories are of some of these people. Does that obscure the issue here, Paul? What is the reason that a tribunal would decide someone shouldn't have their visa cancelled?

PAUL:

Well, it's worth talking about the complexity, Scott, of what we're dealing with here, because there is an argument that many of these people are Australia's responsibility even after they've served their time. It's an argument, I remember, Jacinta Ardern making several years ago when she was New Zealand's prime minister.

She and many others in New Zealand complained long and hard that Canberra was deporting hundreds of criminals straight after serving their sentences to New Zealand. Now, the problem with that was many of these New Zealand citizens had lived the majority of their lives in Australia. They might have spent decades here but just never became citizens. Indeed, many came as babies or toddlers. Now New Zealand complained that Australia's behaviour was corrosive of our relationship. Ardern said she would accept Kiwi criminals, but dozens were being deported that had tenuous or no continuing connection to the land of their birth. To New Zealanders, these were criminals made in Australia but they were being deported to make them New Zealand's problem.

Well, Anthony Albanese agreed soon after coming to government and this was the background to the new Directive 99. The department warned there was always a risk of some of these people re-offending. But Scott, you know, this is the nature of our system. It happens when bail is granted, or prisoners are let out on parole, or have served their time. Is the opposition and sections of the media, particularly the Murdoch conglomerate, really demanding that no one ever be let out of jail? It just doesn't wash.

But it's a political opportunity too good for the opposition to miss. Peter Dutton is desperate for a political scalp to help undermine the credibility of the Albanese government, and this issue feeds into his ramping up of immigration as a way of doing it. It's a perfect fit. Not only are migrants, you know as he claims, clogging up our roads, buying our houses and eating our lunch. But now, non-citizen criminals are being given a soft touch treatment which puts the community's safety at risk.

SCOTT:

After the break, could the immigration minister still lose his job?

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SCOTT:

Paul, we've been talking about this immigration debate and particularly this direction the immigration minister issued and, while the government are mounting a defence of this, are they making changes? Will we see their position shift under this scrutiny?

PAUL:

Well on Wednesday, Scott, Peter Dutton directly asked Albanese if he still had confidence in Giles as Minister. The Prime Minister gave a curt, positive reply. The opposition sees the mild mannered Giles as an easy target, and there's no doubt the minister's problem is he's no head kicker, able to give as much as he receives. But he said the minister would be issuing a revision of Direction 99. Andrews followed up by telling Parliament he'd reviewed the directions on visas in light of the AAT, quote “not showing common sense” in its applications.

Audio Excerpt - Andrew Giles:

“We are issuing a new ministerial direction that is revised and that will…”

PAUL:

He makes the case that Direction 99 also required decision makers to weigh up the risk to the Australian community of letting someone stay.

Audio Excerpt - Andrew Giles:

“Thanks, Speaker. As I was saying, this new revised direction will ensure that the two principles that have always been at the heart of visa management, protection of the community and common sense decision making will take place at the ART and the new ART. It will ensure that community protection outweighs other considerations, and particularly going to the case that the member referred to. We will strengthen the principles of community safety, including the impact of victims and their families, and strengthen the family violence provisions.”

PAUL:

And it makes particular reference to family violence; violent or sexual crimes against women, children, disabled or elderly people; human trafficking; people smuggling; and worker exploitation. So Giles told parliament he wants to make sure these sections are being given weight, quote, first and foremost. He would be ensuring the protection of the community and victims of family violence, these are issues that outweigh other considerations.

But Scott, he's still under pressure. In a sensational admission the Departmental Secretary, Stephanie Foster, told senate estimates on Tuesday night that it is correct, Giles was not informed of the contentious cases that had gone to the tribunal, despite that being required in departmental protocols. Foster admitted it was extraordinary, she regrets it and will now throw more resources at the issue. But the problem for the government is it creates the impression that the department is a shambles and Giles, the minister, has lost control of it. But Giles is aware that it's never in Labor's interest to inflame the fears and prejudices that inevitably engulf the immigration portfolio. But it's dawning on his colleagues that maybe this minister hasn't got the political balance right. Presentation and performance, after all, is an important half of any minister's job.

SCOTT:

Right, Paul, so is there a legitimate chance that the government, which has been pretty stable since coming to office, could actually see a resignation or a sacking if this continues to spiral as an issue?

PAUL:

Well, there are murmurings to that effect. Network Seven's Mark Riley raised questions about Giles’ ability to survive in the job, citing cabinet ministers conceding his days could be numbered. Any minister, of course, is doomed if their performance is judged to be too great a negative for the government. A distraction getting in the road of its ability to set the agenda. And last week, Albanese, in an interview, didn't rule out a reshuffle before the election. But he put it in the context of people retiring and getting fighting fit for a shot at another term.

PAUL:

Giles is one of his closest allies. But as they say in politics, if you want a friend, get a dog. Much will depend on how successful the opposition is keeping Giles and this issue in the headlines. And you can rest assured they'll get plenty of help from significant sections of the media.

SCOTT:

Paul, thank you so much for your time. It's such a pleasure to talk to you.

PAUL:

Thank you Scott. Bye.

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SCOTT:

Also in the news today,

Immigration Minister Andrew Giles yesterday revealed some of the 153 people released from immigration detention last year have been monitored using drones.

The government had previously said the detainees, released after the high court verdict, were being monitored in a variety of ways. But yesterday he revealed this included, quote, “drones to keep track of these people.”

And New Zealand’s new centre-right government has unveiled its first federal budget amid significant protests across the country.

Demonstrators highlighted a series of government actions perceived as detrimental to indigenous rights including a bill to redefine the Treaty of Waitangi principles, and the disbanding of the Maori health authority.

7am is a daily show from Schwartz Media and The Saturday Paper.

It’s produced by Kara Jensen-Mackinnon, Cheyne Anderson and Zoltan Fesco.

Our senior producer is Chris Dengate. Our technical producer is Atticus Bastow.

Our host is Ashlynne McGhee. Sarah McVeigh is our head of audio. Erik Jensen is our editor-in-chief.

Mixing this week by Andy Elston, Travis Evans and Atticus Bastow.

And a special thanks to Andy Elston who wrapped up with 7am this week. All of our heartfelt thanks go to him for his tremendous work on the show.

Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio.

And the editor is myself, Scott Mitchell.

Thanks so much for being with us and we’ll see you next week.

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