Pearls and Irritations

The new directions that Prime Minister Albanese has foreshadowed to make life easier for New Zealanders in Australia in relation to citizenship, deportation and voting are the right way to go.

There was a time when New Zealanders coming to Australia were automatically treated as permanent residents for the purpose of eligibility for social security benefits and acquiring Australian citizenship (although, technically, their visa status was temporary). That meant they did not have to meet the globally applicable requirements that all other people migrating to Australia had to meet to gain permanent residence and all of its benefits. However, they did have to meet the same requirements as other permanent residents did to acquire Australian citizenship. It worked the same way for Australians moving to New Zealand.

There was also a time when no person could be deported if they had been lawfully resident in Australia for a period of 10 years (this was universal and did not just apply to New Zealanders).

Mostly it seemed to work pretty well, although there were some gripes. In those days, the flow of New Zealanders to Australia was generally higher than the other way around.

In 2001, negotiation of a reciprocal Social Security Agreement between Australia and New Zealand changed all that.

In considering the financial aspects of the deal, the Australian Coalition government came to the conclusion that it would be very advantageous for the Commonwealth budget to take away automatic access to Australian social security benefits for New Zealanders coming to Australia. This was done by giving New Zealanders continuing free access to Australia and its labour market, but cutting off eligibility for most social security benefits and Australian Citizenship unless they qualified to become permanent residents by meeting the same requirements as all other migrants from around the globe. The limitation on access to most social security benefits put New Zealanders coming to Australia to settle on the back foot, but saved a lot in the short term for the Commonwealth budget.

New Zealand did not retaliate. The likely long-term social consequences – a large population of New Zealanders on a long-term temporary basis in Australia with no chance of ever becoming Australian citizens – were downplayed in view of the budgetary benefits.

Vigorous complaints over time resulted in a limited one-off concession. The Turnbull government in 2017 introduced targeted migration criteria which would allow New Zealand citizens (who arrived before 2017) to gain permanent residence if they had been in Australia for 5 years and earned a certain income. These modest changes gave some New Zealanders in Australia more opportunity for permanent residence and therefore, ultimately, Australian citizenship. However, they benefited very few.

After 20 years of the new rules, the population of New Zealanders temporarily in Australia is over 650,000. Most of those who arrived after 2001 and continue to reside in Australia will die here as temporary residents. Their children are not Australian citizens at birth, but become Australian citizens after they have lived here for 10 years.

However, the presence of hundreds of thousands of New Zealand citizen temporary residents with increasingly long-term periods of stay raises the potential for a variety of social consequences. A proportion of this group are from culturally and linguistically diverse (CALD) backgrounds. It has been argued that many New Zealand citizens in this situation have limited access to employment, training and other programs, and have been forced into low-paid or low-skilled jobs. These in turn result in long-term social impacts such as over-representation in juvenile justice, underperformance in numeracy and literacy, substance abuse, homelessness and suicide.

The effective removal of the 10 year residence limit on deportation in the 1990s occurred in parallel to changes affecting New Zealanders, but followed a different trajectory and was done for different reasons. The 10 year limit was in practice superseded by a power to cancel permanent and temporary visas on character grounds, without regard to how long a person had lived in Australia. These changes morphed into the now infamous Section 501 of the Migration Act. In 2014 the Coalition government significantly tightened Section 501 to make cancellation of visas mandatory, rather than discretionary, in certain circumstances.

A large New Zealander population in Australia that that could not easily become citizens after the 2001 changes meant that they were unusually susceptible to having their temporary visas cancelled if they were in trouble with the law.

The Abbott/Turnbull/Morrison government ramped up use of the power. Visa cancellations under Section 501 grew from 139 in 2012/13 to 1278 in 2016/17 and 946 in 2020/21. New Zealanders featured very heavily on the statistics. A side effect was a dramatic and costly growth of New Zealanders in long-term immigration detention (including, bizarrely, on Christmas Island) while appeals were being heard. The Coalition government took several opportunities to make the legislation even harsher. Peter Dutton has proudly referred to it as “taking the trash out”.

Of course, many New Zealanders in Australia, who are not Australian citizens, and who have committed very serious crimes here have fully merited deportation (as have people of other nationalities in similar circumstances). It’s a reasonable decision for the Australian government to deport many of these people.

However, the central complaint about the previous government’s approach has been the automatic nature of the process and the fact that it had been deporting to New Zealand people who had little or no contact with that country. In effect, people who had spent virtually all of their life in Australia and whose criminality arose entirely in the Australian context were happily being foisted on New Zealand. From a New Zealand perspective, these people are in practice Australians except for a legal technicality. Families with Australian citizen children and relatives can be split as a social consequence.

The approach of the Australian government to visa cancellation and removal of New Zealanders on character grounds has become the major irritant with New Zealand. It has been raised by the New Zealand government in every major meeting with their Australian counterparts.

During a recent visit to Auckland, I was surprised at the number of people who mentioned section 501 of the Australian Migration Act to me for no particular reason and without knowing my background in immigration policy. How many people in the world can quote the section number of another country’s Migration Act let alone are aware of one in their own country’s legislation? This gives some indication of how deep the issue runs in the New Zealand community.

The poisonous combination of the huge population of New Zealanders in Australia with an indefinitely temporary status and harsh visa cancellation and removal laws represents the single biggest problem in our bilateral relations with New Zealand. It gives the lie to all of the tedious motherhood statements by Australian governments about the special relationship between the two countries.

Domestically the build-up of a population of indefinitely temporary New Zealanders in Australia is completely inconsistent with the long-held goal that Australia is a nation of citizens who are all able to fully participate in the obligations and benefits of Australian society rather than a hodgepodge of citizens and guest workers.

If the idea of a “special relationship” with New Zealand means anything at all, the Albanese government is right to work towards a fairer deal for New Zealanders.

The biggest challenge is creating a new pathway to Australian citizenship for New Zealanders living in Australia. No doubt work will have to be done on the budgetary consequences, including extending access to social security benefits. We may not be able to return to the pre-2001 situation. The new arrangements could be as simple as bringing forward eligibility for some social security benefits and giving automatic permanent residence to New Zealanders who have lived continuously in Australia for 10 years (treating them as having met the residence requirements for Australian Citizenship at that point).

It should be easier to do something more quickly about the impact of Section 501. Prime Minister Albanese’s suggested approach is to give much greater weight in decision-making to the amount of time any New Zealand citizen who has committed crimes here has spent in Australia compared to their time in New Zealand. This was the practice in the past and it seems reasonable. It could be achieved by an adjustment to a Ministerial Direction. We should not continue to foist people whose criminal history is entirely rooted in Australia on another country. Of course, not automatically removing any New Zealand citizen who is a temporary resident in Australia for committing a crime would also save on immigration detention costs.

That will mean swallowing the fact that some people released from prison the end of their sentence who are technically New Zealanders will be allowed to remain in Australia. That was the case in the past. Let’s remember that, if they were Australian citizens, we simply wouldn’t notice.

The direction of the proposed reforms in this area will both benefit the long-term development of Australia as a fairer, cohesive society and improve relations with New Zealand.

The consideration of extending voting rights for New Zealanders in Australia is more complicated, given the current linkage between voting rights in Australia and Australian citizenship. The government’s intention to refer this to a Parliamentary committee is a good way to publicly work through some of these issues.

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