Migration Act 1958 - General Direction under section 499 - Australia's Criminal Deportation Policy - Criminal Deportation under section 200 (Direction No. 9 of 1998)
COMMUNITY EXPECTATIONSCOMMUNITY EXPECTATIONS
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8. It is the Government’s view that the expectations of the Australian community are a primary consideration in determining whether a potential deportee should be deported. Decision makers should have due regard to the Government’s view in this respect. There are two aspects to community expectations:
(a) the expectation that the community will be protected and not put at risk;
and
(b) the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
Protection of the Australian Community
9. It is the Government’s view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. In particular, it is the Government’s view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community. The Government considers that children and young people are especially at risk in this area. The Government acknowledges that it has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. A decision maker should have due regard to the Government’s view in this respect.
10. It is the Government’s view that the following factors are relevant to an assessment of the level of risk to the community and the need for its protection:
(a) the seriousness and nature of the crime;
(b) the risk of recidivism; and
(c) the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
Decision makers should have due regard to the Government’s view in this respect.
The seriousness and nature of the offence
11. It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a) the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.
• Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.
• The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both are a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.
• Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.
(b) organised criminal activity resulting in a conviction in Australia;
(c) sexual assaults, whether or not accompanied by other violence, and especially where there has been more than one sexual offence;
(d) armed robbery (including robbery involving the use of imitation weapons);
(e) murder, manslaughter, assault or any other form of violence against persons;
• Such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government.
(k) crimes against children;
• Because of their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children.
(l) any other crimes involving violence or the threat of violence;
• Such crimes are of special concern to the welfare and safety of the Australian community.
(m) ancillary offences in respect to any of the above offences, including:
• convictions for attempting to commit any of the above offences;
• convictions for conspiracy to commit any of the above offences;
• convictions for being an accessory before or after the fact in any of the above offences.
Decision makers should have due regard to the Government’s view in this respect.
12. It is the Government’s view that the sentence imposed for a crime is an indication also of the seriousness of the offender’s conduct against the community. Decision makers should have due regard to the Government’s view in this respect.
The risk of recidivism
13. It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. Decision makers should have due regard to the Government’s view in this respect. In particular the following factors will be relevant to the assessment:
(a) the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;
(b) a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
(c) the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.
The likelihood that deportation of the potential deportee would prevent (or inhibit the commission of) like offences by other persons
14. It is the Government’s view that this factor may be relevant to protecting the Australian community in various ways:
(a) the nature of the offence is such that deportation is expected to deter other non-citizens from committing similar offences; and
(b) the deportation of a potential deportee who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from committing new offences. For example, the potential deportee may be a ringleader whose deportation may reduce the likelihood that his or her associates will commit other offences.
Decision makers should have due regard to the Government’s view in this respect.
Community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community
15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker’s understanding of the community’s attitude to the potential deportee’s offences. Decision makers should have due regard to the Government’s view in this respect.
Section COMMUNITY EXPECTATIONS - Migration Act 1958 - General Direction under section 499 - Australia's Criminal Deportation Policy - Criminal Deportation under section 200 (Direction No. 9 of 1998) - COMMUNITY EXPECTATIONS | Zoe