'Do not deport your people and your problems,' Jacinda Ardern told Scott Morrison at their meeting in February 2020. (Photo by James D. Morgan/Getty Images)

NZ rightly decries Australia’s deportation policy. But let’s face up to our cruelty, too

This week the issue of deportations from Australia to New Zealand was again in the spotlight, with Scott Morrison refusing to budge from his hardline position. But if we’re to condemn Australia’s approach, we must also demand a change to NZ’s treatment of so-called ‘returning offenders’, writes Claudia McHardy.

Australia was Mark’s home for 32 years until his deportation. Mark was exiled from his friends and family, including a teenage daughter, to New Zealand, a country where he has citizenship but is a stranger. Mark is a member of the infamous “501 club” — New Zealanders deported from Australia under the country’s controversial Section 501 policy.

Since December 2014, Section 501 has lowered the bar for deportation and removed the prohibition on deporting long-term residents, triggering a surge in the number of people forcibly returned to New Zealand.

The injustices experienced by the 501s have been well-documented, including in this Spinoff feature. But there is a second, and less well-known club to which Mark belongs.

Mark is one of over 2,000 people made subject to New Zealand’s Returning Offenders (Management and Information) (“ROMI”) Act 2015.

The ROMI Act creates a supervision regime for so-called “returning offenders”. Ostensibly modelled on parole arrangements for people released from New Zealand prisons, in practice the regime for overseas offenders is more punitive and exclusionary while offering fewer legal protections.

The act is also extremely unusual: no other country on the receiving end of deportation has pursued a formal policy response. Yet it has received little attention. In the enthusiasm for critiquing our neighbour’s policy, New Zealand has failed to look to itself.

While adjusting to life outside of prison or immigration detention, returning offenders must also navigate the practical and emotional complexities of leaving one’s home to start again in a new country. They will encounter obstacles to rehabilitation and (re)integration beyond those of the average domestic offender. Many face serious mental health struggles, no doubt exacerbated by their experiences of detention and deportation.

Rather than compensate for these unique vulnerabilities, the ROMI Act adds to them.

The New Zealand state has chosen to respond to deportees as dangerous threats to be contained, and not vulnerable people to be supported. It would be disingenuous to deny the significance of this choice in light of the fact that the majority of returning offenders are non-white — over 60% are Māori or Pasifika. This racial disparity mirrors that of New Zealand’s wider criminal justice system, where Māori and Pasifika peoples comprise 60% of the prison population.

If Australia’s policy imposes a triple punishment for non-citizens convicted of criminal offending, then the New Zealand legislation slathers on yet another punitive layer, creating what amounts to a quadruple punishment: imprisonment, immigration detention, deportation, and now ongoing monitoring and supervision in New Zealand.

Such prolonged criminal justice exposure can feel deeply unfair. As Mark says to his parole officer in the Māori TV documentary Section 501, “I’m square with the house and then I come here and I get put on a 12-month probation … man, I just want to get on with my life.”

Compared with people convicted here in New Zealand, returning offenders receive a greater number of punishments for their original offence. And because of the way the ROMI Act is implemented, their post-release supervision is also harsher.

Although sold in parliament as tools for targeting only the most high-risk individuals, more restrictive “special conditions” like electronic monitoring and curfews are being imposed on nearly every returning offender, despite there being no evidence that the group presents a particular risk.

The stakes could also not be higher: breach of a ROMI condition is a criminal offence, punishable by up to one year’s imprisonment, so enhanced restrictions are likely to have the knock-on effect of sending more people back to prison.

Corrections defends the widespread use of special conditions on the grounds that it is impossible to know the risk profile of people who committed their offending overseas.

Out of an abundance of caution, Corrections makes a presumption of dangerousness across the returnee population and deported Kiwis consequently experience a greater loss of freedom.

Josh, another deported Kiwi profiled in Section 501, reflects that his life could “so quickly … turn into a nightmare again. I’m only really two steps away from being locked up: one, I miss an appointment with a probation officer; two, I get locked up.”

While returnees are eligible for legal aid, few take it up. This may be because deported Kiwis are unaware of their eligibility, highlighting the inherent vulnerability of people compelled to navigate an unfamiliar criminal justice system.

Compounding upon their legal vulnerability, deported Kiwis experience profound social precarity yet receive no dedicated support for rehabilitation or (re)integration.

The government passed on the opportunity to create an “enhanced support service” for addressing the housing, employment and healthcare needs of returning New Zealanders. The Ministry of Justice, when explaining the rationale behind the proposed service, noted that many returnees face “additional challenges in returning to a country where they have citizenship, but few personal connections”.

Why would the government choose the ROMI Act when a support service would have been a cheaper, more humane and quite possibly more effective means of preventing reoffending? The political fanfare surrounding returning New Zealanders offers a clue.

A week before the vote on the ROMI bill, John Key declared in parliament that deported New Zealanders were “rapists … child molesters … murderers”. He singled out those held on the Christmas Island Detention Centre, saying “the vast majority … are serious criminals.” But nearly all detainees on Christmas Island at that time had been convicted of shoplifting or low-level drug offences — none had convictions for rape or murder.

The harsher treatment of returning offenders is sustained by a political culture which responds to deported New Zealanders as dangerous outsiders, deserving of heightened controls but undeserving of the full protections of the law guaranteed to citizens.

Returning offenders are often talked about as though they were foreigners. Amy Adams, then minister of justice, commented that Australia is “deporting people back to New Zealand who, other than their DNA, are really not New Zealanders”.

More recently, Jacinda Arden implored Australia to “send back Kiwis, genuine Kiwis — do not deport your people, and your problems.” This leaves unanswered the question of who is a “genuine Kiwi” and what the state owes to those who fall outside the definition.

New Zealand had an opportunity to treat deported people with dignity and care. We didn’t take it.

In March this year, Chris Hipkins described Australia as “exporting its garbage to New Zealand”. He backtracked, claiming to be paraphrasing Australian home affairs minister Peter Dutton. Whatever the truth, Hipkins’ choice of words reminds us that ways of talking about and, ultimately, treating people are infectious.

New Zealand has permitted Australian border policy, distinguished by its harshness and racism, to shape our domestic criminal justice policy. Troubling as this is, it is not altogether surprising. New Zealand’s treatment of its deported citizens conforms to the racialised patterns of criminalisation and exclusion which have persisted here since colonialisation.

If only we could, as a society, break the chain of transmission between Australia’s callous treatment of their 501 club and New Zealand’s punitive response to our own ROMI club. We can start by pairing our justified outrage at Australian policy with empathy for the people caught in the middle and demand that they be supported instead of punished for Australia’s mistakes.




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