Question hangs over new direction of troubled immigration portfolio

The Albanese government’s belated replacement of its ill-thought-through ministerial direction to the Administrative Appeals Tribunal on visa cases does little to counter concerns surrounding the immigration portfolio since Australians found out that detainees with criminal convictions were routinely being freed into the community.

Immigration Minister Andrew Giles on Friday issued a new rule – known as “direction 110” – to replace “direction 99”, which was blamed for dozens of criminals being released into the community rather than returned to their country of citizenship.

Direction 110 still affords priority to a detainee’s connections with Australia. But some of the “principles” shaping the direction have changed. Direction 99 stipulated that the government “will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life”. Direction 110 only states that it “may” afford tolerance. The new direction’s impact on a non-citizen’s family members and their connection to Australia must be considered when considering deportation.

Giles introduced direction 99 early last year in response to New Zealand complaints about the mass deportation of Kiwi citizens. His changes meant the AAT had to factor in the time deportees lived in Australia when considering visa applications. It remained a sleeper issue until the High Court ruled last November that immigration detainees should be released into the community and blew up when one of the freed detainees was among three people alleged to have committed a violent house invasion in Perth in April. Senate estimates was told several others had been convicted of child sexual abuse, and one was charged with murder. Giles then re-cancelled 40 visas and announced he would replace direction 99.

The new rules have not impressed New Zealand Prime Minister Christopher Luxon. “We regret the decision Australia has made,” he said on Friday. But he did note Australia was allowed to set its own immigration rules, adding that Prime Minister Anthony Albanese had assured him “a common-sense approach will continue to apply”.

Giles refused to say whether he had made a mistake with the previous direction, saying: “I’m taking responsibility for putting in place a direction that sends a clear signal to decision-makers and the Australian community about how they should go about making these decisions.”

Even so, Giles has been under sustained attack ever since Australians found out the detainee system was not protecting them, with the opposition having a field day highlighting the number of foreign nationals convicted of violent crimes, including rape and assault, whose appeals had been upheld by the AAT.

To some extent, Giles inherited the problem from the previous Coalition government. But the direction 99 mess was all his own doing. Further, as the situation unravelled into a political disaster, his remark about drones being used to track released detainees – only to later retract that claim with the admission he had been led up the garden path by his own department – suggests he does not understand the meaning of ministerial responsibility and is not on top of his portfolio. There is a heightened perception that a question hangs over his future.

Throughout the furore, Giles’ factional links with Albanese were said to have insulated him from a cabinet reshuffle. But clearly the immigration minister must be on his last warning. His new direction 110 might have saved the day for the moment. But he had no choice. The government had to change the rule. His rule. The old policy was not working and was, in fact, endangering the lives of Australians. We shall just have to wait and see if this latest measure fixes the problem – or becomes the last straw for Giles.

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