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How direction 99 has put pressure on Andrew Giles and forced the government’s hand

By Olivia Ireland

Updated May 29, 2024 — 3.41pm

Prime Minister Anthony Albanese has announced a new ministerial directive to ensure that community protection outweighs any other consideration by the Administrative Appeals Tribunal.

The announcement in question time on Wednesday came as Immigration Minister Andrew Giles was under fire over a ministerial direction he issued in January last year that had been linked to several legal decisions to allow foreign-born criminals to stay in Australia.

A New Zealander convicted of raping his stepdaughter, a British man who attacked women on 26 occasions and a former detainee who after his release allegedly murdered someone all had their visas reinstated by the AAT in part because of ministerial direction 99.

During Senate estimates on Tuesday, Home Affairs secretary Stephanie Foster admitted her department breached protocol by not warning Giles about at least 30 decisions made by the AAT that allowed foreign-born criminals to stay in Australia. Giles said he was urgently reviewing and overturning those decisions.

How we got here

The decisions are all to do with ministerial direction 99, which will be superseded after Albanese’s question time announcement.

When visa holders face deportation, they can take their case to the Administrative Appeals Tribunal. Currently, the tribunal must interpret direction 99, which says significant weight must be given to a person’s ties to Australia when deciding whether to refuse their visa.

Immigration Minister Andrew Giles.Credit: Alex Ellinghausen

Direction 99 was given under section 501 of the Migration Act – which deals with refusal or cancellation of visas on character grounds – and signed off by Giles. It came into effect on March 3 last year after years of lobbying by the New Zealand government to stop Australia from deporting New Zealanders convicted of criminal offences when they had spent most of their life in Australia.

In 2020, former New Zealand prime minister Jacinda Ardern declared the then-Coalition government’s tough stance on the issue as “corrosive” to the relationship between the countries, telling then-prime minister Scott Morrison, “do not deport your people and your problems”.

During Arden’s visit to Australia in July 2022, Prime Minister Anthony Albanese signalled a shift in approach to the issue, saying his government would adopt a “commonsense” approach to deportations.

Direction 99 replaced ministerial direction 90, from March 2021, which had replaced ministerial direction 79, from December 2018. Non-citizens who had lived in Australia for most of their lives and committed a crime were still able to have their visa cancellation reconsidered under directions 90 and 79, as both stated “Australia may afford a higher level of tolerance” to people who have lived in Australia for most of their life.

However, the wording of direction 99 is stronger, stating the AAT “will” consider the length of time a person has spent in the country, rather than “may”.

“Australia will generally afford a higher level of tolerance … The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years,” direction 99 states.

Secretary of the Department of Home Affairs Stephanie Foster during Senate estimates on Wednesday.Credit: Alex Ellinghausen

Why it matters

The AAT’s interpretation of direction 99 has put more pressure on the ability of Giles and the Department of Home Affairs to ensure community safety.

Giles was meant to be informed of cases before the tribunal by Home Affairs. However, Foster admitted the department failed the immigration minister as “we did not meet our agreed protocol and in particular we did not put advice before him in any way”.

In a departmental submission tabled at the hearing on Tuesday, preliminary analysis showed the ministerial direction would result in about a quarter of visa revocations being overturned.

What they said

Albanese said a new directive would ensure that protection outweighs any other decision by the Administrative Appeals Tribunal, confirming ministerial direction 99 will be revised.

“The new directive will ensure that the protection the committee outweighs any other consideration,” the prime minister said in question time.

Giles took a barrage of questions in the House of Representatives on Tuesday and Wednesday, saying he had prioritised several cases for urgent consideration. This included him cancelling the visas of the New Zealander who raped his stepdaughter and the Sudanese detainee who allegedly murdered someone after his release.

Foster was again taking questions on Wednesday morning, placing blame on a Coalition-era policy for reducing her department’s resources, which led to a failure to warn Giles about criminals’ visas being reinstated.

Coalition spokesman for home affairs James Paterson said on Wednesday that Prime Minister Anthony Albanese should repeal direction 99 and return to the Coalition’s version “which put much more weight on community safety”.

Opposition spokesman for immigration Dan Tehan also called for Giles to front the media and take questions on his handling of the situation.

Another perspective

Home Affairs Minister Clare O’Neil told Seven’s Sunrise on Wednesday there were issues of concern within the Department of Home Affairs.

“We have set about making some really significant changes to that, we will get to the bottom of why it is that the process that was set out for Home Affairs was not followed,” O’Neil said.

What’s next

Giles said he would urgently review the controversial tribunal decisions, with some already having been overturned to send offenders back to their birth country.

The Department of Home Affairs processes will also be under review as O’Neil said they have set about making “significant changes”.

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