Higher tolerance for rapists fighting deportation, but zero tolerance for facts

Australians have been told many times that the country should have zero tolerance for rape, sexual assault and violence against women. But when Charles William Davidson had to answer for 59 sex offences against 26 victims, he was shown clemency instead.

Rather than being deported to the United Kingdom, where he was born 74 years ago, Davidson was allowed to remain free in the community.

In fact, he was shown a “higher level of tolerance” for his crimes because he had spent many years with his family in Australia. No zero tolerance for him. The Administrative Appeals Tribunal overturned a government decision to cancel his visa.

That case is now making headlines – and Peter Dutton can see blood in the water.

The opposition leader says the immigration minister, Andrew Giles, must be sacked. Some press gallery journalists back that call. The government responds with boilerplate loyalty for the minister. Labor is being outflanked daily by newspaper headlines and Coalition attacks.

But the actual history of the past few years shows the tribunal has repeatedly allowed convicted criminals to stay in Australia under both major parties. The tribunal did it when Dutton was minister. It does it now Giles is minister. A key reason is that both major parties – not just one – have allowed the tribunal to show a “higher level of tolerance” for some of these offenders.

Opposition Leader Peter Dutton can smell blood in the water over direction 99. Credit: Alex Ellinghausen

So the facts of the Davidson case, and others like it, take on crucial importance. And some of those facts are being wilfully overlooked.

The first is that the government tried at every point to deport Davidson. It revoked his visa after he was sentenced to 16 years in prison. It sent a lawyer to the February hearing to argue against the restoration of his visa. But it lost the case.

(The tribunal member who made the decision, by the way, is no friend of Labor. Senior Member Theodore Tavoularis was named to the tribunal in 2016 when George Brandis was attorney-general. He had made a small donation to the Liberal Party and had done legal work for a member of the Brandis family. When the former government extended his term in 2021, Labor said this was another “Liberal mate” getting a plum job.)

The second key fact is that the government rule on visa cases did not force the tribunal to let Davidson stay. The rule, known as direction 99, was signed by Giles in January last year and named community safety as a major factor in decisions. But it also talked of a “higher level of tolerance” for offenders with long ties to Australia. For the Coalition, this is the smoking gun that means Giles should be sacked.

The Coalition now talks of direction 99 as if it set an entirely new standard. It did not.

Direction 90, signed by Liberal minister Alex Hawke in 2021, also talked of a “higher level of tolerance” for criminals who have lived in the Australian community for most of their lives. Direction 79, signed by Liberal minister David Coleman in 2018, used the same phrase. So did direction 65, which was put in place under the Liberals in 2014.

Direction 99 introduced new wording. It said Australia “will generally afford a higher level of tolerance” for criminals who have lived here for most of their lives. It also added that the level of tolerance will rise with the length of time in Australia.

Directions 90, 79 and 65 said Australia “may afford a higher level of tolerance” for these criminals. They said the length of time in Australia was a consideration.

Another change is that direction 99 said the “strength, nature and duration of ties to Australia” should be one of the primary considerations on visa decisions, along with the protection of the community, the interests of children and any history of family violence. Earlier directions did not make ties to Australia a primary consideration.

Is this change in wording really a sackable offence for a minister? The key point is that Giles did not embark on the new idea of showing greater tolerance for criminals – he inherited this concept. Why was it modified? That was a broader government decision. Australia wanted to ease frictions with New Zealand about the deportation of criminals across the Tasman.

A third key fact is that the tribunal is not doing anything new. It has repeatedly overturned government decisions to try to deport criminals.

When Dutton was home affairs minister, for instance, the tribunal decided that an 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. Was this decision in September 2019 a sackable offence for the minister at the time?

That decision is here.

The government is doing a poor job of defending Immigration Minister Andrew Giles.Credit: Alex Ellinghausen

During the same period, the tribunal decided that a Brazilian man found guilty of armed robbery and assault, and the subject of an apprehended violence order sought by his girlfriend, should have his visa restored. This decision in 2018 cited the “higher level of tolerance” in direction 65.

That decision is here.

In another ruling while Dutton was minister, the tribunal sided with a Nigerian heroin dealer, known as HMDS, and said he should be granted a visa despite the government’s refusal to do so. The decision, in early 2020, cited direction 79 and the key phrase about tolerance.

That decision is here.

The government is doing a poor job of defending itself. In a parliament full of barracudas, too many Labor ministers try to glide like jellyfish past every threat. Giles is under severe pressure and the parlour game in the press gallery is to speculate on when he will be replaced.

Even so, the truth is that both major parties set rules that allowed tolerance for rapists and other convicted criminals when many Australians expect zero tolerance instead. The Liberals have to answer for decisions on their watch. And it is up to Labor to assure voters it can bring this problem under control.

Cut through the noise of federal politics with news, views and expert analysis from Jacqueline Maley. Subscribers can sign up to our weekly Inside Politics newsletter here.