Australia’s unethical deportation practice discriminates against New Zealanders with mental illness: ‘Everybody needs good neighbours!’

Abstract

In this article, we explore Australia’s deportation of people with mental illness from an ethical and human rights perspective. We outline the legislative framework regulating migration policy in Australia, focussing on Section 501 (s.501) of the Migration Act 1958 (which makes provision for deportation of non-residents on character grounds) and on the recently issued Direction 99 (which provides guidance on visa refusal and cancellation under s.501). We find the definition of a failed character test embedded within the legislative framework to be discriminatory, in that it conflates mental illness with character attributes. We present recent data on s.501 deportees sourced from the New Zealand Police and Manatū Hauora (the New Zealand Ministry of Health). Drawing on our clinical experiences working in forensic psychiatry and rehabilitation services, we describe some of our patients’ experiences and the detrimental effects of deportation on their health and well-being. We argue that deportation of people with mental illness contravenes principles of psychosocial rehabilitation and recovery, is discriminatory and constitutes a moral wrong. Furthermore, while we recognise that recent policy changes reflect a tempering of the previous hard-line policy stance, it remains to be seen what effects they will have in practice. We question whether the new guidance will be enough to improve the treatment of and outcomes for those with mental illness, or whether the changes represent a case of too little, too late.

Introduction

The Australian Government’s hard-line stance on migration policy has long cast a shadow across the Tasman, leading to ongoing tension with its Aotearoa New Zealand (NZ) neighbours. This controversy centres on Section 501 (s.501) of the Australian Migration Act 1958, which establishes a legal basis for deportation of any non-citizen on character grounds. Since 2014, more than half of deportees from Australia have been NZ nationals, though they make up just 10% of the immigrant population (Australian Human Rights Commission, 2019).

In this article, we argue Australia’s s.501 policies disproportionately affect and discriminate against deportees with mental illness in several ways. People with mental illness and substance use disorders are more likely to come into contact with the criminal justice system compared with the general population and therefore are more likely to face the risk of deportation under the character test. A systematic review and meta-analysis of international literature indicated that 25% of people with mental disorders have been arrested by police at some point in their lifetime (Livingston, 2016). A national survey of prisoners in Australia found that in the 12 months before entering custody, 44% of prisoners had been diagnosed with a mental health disorder and 39% had used drugs (Australian Institute of Health Welfare, 2019). Furthermore, people with mental illness may be less likely to be able to access effective legal representation to defend themselves against criminal convictions and deportation decisions.

We consider how immigration detention and deportation have significant and detrimental impacts on the health and well-being of deportees with mental illness and argue that deporting them contravenes principles of psychosocial rehabilitation and recovery, is discriminatory and constitutes a moral wrong.

Australian migration policy – the legislative context

Enduring powers for deportation of non-citizens from Australia on character grounds

The earliest federal immigration laws in Australia contained broad and ill-defined discretionary powers permitting the executive government to refuse entry to ‘unsuitable or undesirable’ non-citizens (Billings and Hoang, 2019). Subsequently, the Migration Act 1958 set in place the foundations of the legislative framework still used today to regulate the entry and presence of non-citizens in Australia. It made provision for the Government to deport non-citizens who had committed criminal offences, so long as they had been living in Australia for less than 10 years.

In 1998, the introduction of s.501 extended the mandate to include people who had been resident for more than 10 years (Australian Human Rights Commission, 2013). It also granted discretionary power to cancel or refuse visas to non-citizens who do not pass a character test with specific grounds for failure detailed in s.501(6). By way of illustration, criteria include where a person is viewed to represent a potential danger, for example by being liable to become involved in activities that are disruptive or threaten violent harm to the Australian community. Also, having a ‘substantial criminal record’ provides grounds for failure, as defined specifically in s.501(7), for instance where a person has been sentenced to one year or more in jail, including shorter sentences adding up to 12 months or longer. In 2014, decision-making powers were fortified further by the introduction of mandatory visa cancellation for anyone imprisoned for longer than a year.

This aspect of s.501 is of particular concern for people with mental illness, as criteria include such circumstances where someone has been detained in a residential mental health or drug rehabilitation programme following a decision by the court that the person is found ‘not fit to plead’ or is acquitted of an offence on the grounds of unsoundness of mind or insanity. Any time that someone is required to participate in a treatment programme of this nature counts as equivalent to a jail sentence and contributes to the cumulative 12-month threshold. In effect, people found not fit to plead or acquitted of an offence due to mental illness are treated the same as criminals convicted of a crime.

Calls from the NZ Government for fairer treatment of New Zealanders

The tension between our countries resulting from the Australian Government’s uncompromising approach has been fuelled by stigmatising narrative from Australian politicians. In 2021, for example, Peter Dutton (then the Australian Home Affairs Minister and now Leader of the Opposition) referred to the deportation of New Zealanders as ‘taking out the trash’ (McCullough, 2021). Former NZ Prime Minister Jacinda Ardern voiced concern about the ‘corrosive impact’ of Australian immigration policy on trans-Tasman relations and repeatedly called for consideration of greater reciprocity (McGowan, 2021). Following a change in government in 2022, the incoming Australian Prime Minister Antony Albanese made a commitment to ‘apply a common sense approach’ to immigration (Hevesi, 2022).

Recent changes signal a more nuanced approach to Australian visa decision-making

Subsequently, Direction 99, issued pursuant to Section 499 of the Migration Act, came into effect from March earlier this year (Australian Government, 2023). It provides guidance to decision-makers on exercising powers under s.501 and how the character test is applied. While a non-citizen’s ties to the Australian community were not previously a primary consideration in the decision process, the new guidance provides for the specific circumstances of each case to be weighed up. Key issues to be considered include the strength, nature, and duration of ties to Australia, and the best interests of minor children in Australia affected by potential deportation (Donnelly, 2023). While this signals a step in the right direction towards greater fairness and humane treatment of non-citizens in Australia, it is yet to be seen how the guidance will be implemented and what effect it will have.

Furthermore, from 1 July 2023, there is another welcome change to immigration policy whereby New Zealand citizens who have lived in Australia for 4 years or more will be eligible to apply directly for Australian citizenship, no longer being required first to apply for and be granted a permanent visa. Many New Zealanders live in Australia under a special visa category that permits unlimited residency, but until now were offered no direct pathway to permanent citizenship. These people were effectively on perpetual probation (Birrell, 2013), far less likely to apply for citizenship than other immigrants (Billings and Hoang, 2019), and often unaware of the relative security that citizenship provides compared with their temporary immigration status (Shepherd, 2022). The change from 1 July 2023 mirrors the pathway to citizenship available to Australians resident in NZ and represents a significant step towards more equitable policy between our two countries.

Enduring detrimental impacts from detention and deportation on mental health

There have been numerous studies internationally reporting on the detrimental effects of detention and the myriad potential negative health consequences following deportation (Bosworth, 2016).

Many s.501 deportees receive their visa cancellation papers in prison with little prior warning and upon release are transferred directly to detention centres prior to deportation. The revocation process for appeals requires costly legal support, prohibitive to many, and over recent years, increasingly frequent procedural delays have often led to extended stays in detention (Billings and Hoang, 2019). At September 2020, the average period of time spent by detainees in detention had risen to a record 581 days, with some people spending more time in detention than they had in prison (Australian Human Rights Commission, 2019). There is an established link between increased duration of detention and severity of mental health symptoms (Von Werthern et al., 2018).

In 2013, the Commonwealth and Immigration Ombudsman highlighted the increasing rates of self-harm by detainees within the network of Australian detention centres, noting the strong correlation with the rise in the average time in detention (Commonwealth Ombudsman, 2013). More recent data from the 5-years to 2022 shows sustained high numbers of self-harm incidents recorded (Refugee Council of Australia, 2023). There have also been recent media reports of suicides in Australian detention centres (Smith, 2022) including an account of a mentally distressed NZ woman detained under s.501, reported to have had her access to mental health medication restricted (Trafford and Holt, 2022).

Following a series of inquiries into detention facilities, the Australian Human Rights Commission has expressed deep concern about practices contributing to adverse mental health consequences for detainees (Australian Human Rights Commission, 2013). They found that deficient healthcare and mental health service provision in detention contributes to the elevated prevalence of depression, anxiety, and post-traumatic stress disorder, and high rates of self-harm among detainees (Australian Human Rights Commission, 2019).

Furthermore, the negative impacts of detention on mental health endure long after a person is released from confinement (Bosworth, 2016). Following deportation, many deportees may experience exacerbation of existing mental illness (Martinez et al., 2015), post-traumatic stress disorder (Favril et al., 2020), and substance use (Martinez-Donate et al., 2020). Deportation often interrupts rehabilitative treatment for people with mental illness and seriously compromises recovery.

Section 501 deportations to New Zealand and the impacts on deportees

Following the amendment to s.501 in 2014, the number of visa cancellations increased markedly from 76 in 2013/14 to 983 in 2015/16 (Commonwealth Ombudsman, 2016).

Table 1 summarises data we obtained from NZ Police about deportations to NZ. On average, there were 362 deportees from Australia to NZ per calendar year to 2021, peaking at 473 in 2018. The vast majority were men (94%). Māori (43% of all deportees) and Pacific Peoples (23%) were substantially over-represented compared to their relative distribution within the wider NZ population (at 16.5% and 8.1%, respectively; Statistics NZ 2020). Notably, many s.501 deportees had been living in Australia for decades, with more than 36% having left NZ before the age of 20 years, including some 6% who left as children younger than 9 years of age. At the time of arrival in NZ, 61 deportees were still teenagers.

Table 1.

People deported from Australia to NZ (January 2015–May 2022).

Variable	n	% of total
Sex a
Male	2515	94%
Female	162	6%
Ethnicity b
Māori	1115	43%
European	799	31%
Pacific peoples	586	23%
Other	92	4%
Age person left New Zealand c
0–19 years	965	37%
20–39 years	1337	51%
40 years or older	327	12%
Years away from New Zealand d
0–9 years	1610	61%
10–19 years	684	26%
20–29 years	249	9%
30 years or more	86	3%
Age on arrival in New Zealand
14–19 years	61	2%
20–29 years	889	33%
30–39 years	883	33%
40–49 years	534	20%
50 years and above	317	12%
Total people deported to New Zealand	2684	100%

Source: Data provided by NZ Police on 6 July 2022, in response to an Official Information Act request.

^aExcludes 7 people of unknown sex.

^bExcludes 92 people of unidentified ethnicity.

^cExcludes 55 people of unknown age.

^dExcludes 55 people without time overseas specified.

What happens to deportees once they arrive in NZ?

Separating people from their families, communities, and other supports creates a recipe for recidivism and deterioration in mental health. According to data provided by NZ Police, almost two-thirds of deportees from Australia from January 2015 until May 2022 committed offences after their arrival (n = 1548 or 58%), with 43% of total arrivals receiving convictions.

When a s.501 deportee arrives in NZ, any health information about them provided by the Australian authorities is triaged by a registered nurse who arranges referral to appropriate services to address any acute physical or mental health needs identified. Recent data we obtained from Manatū Hauora under the Official Information Act show that between June 2019 and August 2022, ¹ 22% of people screened were referred to specialist mental health and addictions services, a much higher proportion than the 3.7% of the general NZ population who received care from specialist services in 2019/20, indicating the high mental health needs of this cohort (Ministry of Health, 2020). On the contrary, many others fall through the cracks, with none of the three people we describe in Table 2 below having accessed specialist mental health services in NZ prior to coming to the attention of the authorities after their mental health decompensated.

Table 2.

Examples of the experiences of mentally ill people deported from Australia that the authors have supported within forensic psychiatric services in NZ.

Patient M M escaped his war-torn homeland with his parents after experiencing significant early trauma. They arrived in New Zealand as UN-sponsored refugees when he was 5 years old. While he was still at primary school, they moved to join extended family in Australia, where they settled permanently. M developed schizophrenia as a teenager, receiving specialist mental health support for the next 15 years. After being sentenced to 8 months imprisonment for minor offending in his thirties, he was deported to New Zealand on his release, where he knew no-one. He became homeless and his mental health decompensated. He deliberately vandalised a police station to attract attention and was hospitalised. His psychosis has become treatment resistant, and rehabilitation is difficult without community or family support. M has remained in inpatient care for the last 3 years. He has had no visitors.

Patient S S, a Māori male, was adopted by whānau (family) in Australia as a baby. In late adolescence, he developed schizophrenia and tried to kill his mother in response to delusional beliefs. He did not use an insanity defence available to him. He was imprisoned, then paroled and deported to New Zealand, a country he had left before his first birthday. His mental state relapsed and 6 weeks after arrival he committed a further psychotically driven assault. He has remained in a psychiatric inpatient facility since and has little social support in New Zealand.

Patient T T was in his early teens when he moved to Australia with his mother. He later married and had five children and regular employment. After developing a serious psychotic disorder and substance use problems, he committed violent offences and was imprisoned intermittently. Aged 40, he was deported to New Zealand, where he was socially isolated and became homeless. He committed a further serious violent offence, driven by psychotic delusions. He was found not guilty by reason of insanity and committed as a Special Patient to forensic secure care.

To our knowledge, there has been no systematic research specifically addressing the fate of New Zealanders with mental illness deported from Australia, and there are significant limitations in the extent of information made available publicly by agencies involved in the deportation process. We highlight the need for more robust monitoring and further research in this field.

Discussion

Disregard for the principles of psychosocial rehabilitation and recovery

Psychiatrists in Australasia promote the practice of rehabilitation psychiatry, which centres on a person’s potential for recovery from mental illness and addresses the diverse social and cultural factors involved. Core principles emphasise respect for a person’s values and beliefs, quality of life, and re-integration into family and community circles (RANZCP, 2023).

For mentally ill people, deportation often interrupts or hinders the implementation of rehabilitative treatment plans, reducing the chance of recovery. For many unwell deportees, Australia has been home for decades, often since early childhood. Deportation imposes enforced separation from children, parents, partners, and communities with deportees facing the prospect of never being allowed to return to Australia. Māori and Pacific Peoples, who are over-represented among deportees, may be particularly vulnerable to the loss of their whānau support systems in circumstances where entire families migrated across the Tasman earlier in their lives. For the deported migrants, loneliness, social-displacement, shaming, and difficulties accessing work and government services as a consequence of stigma and discrimination are common experiences in their new environment (Morris and Palazuelos, 2015). For family members left behind in Australia, the forced removal of a loved one from the country can have devastating emotional and financial impacts, particularly for children, jeopardising the current and future mental health of this next generation.

Recurring breaches of human rights legislation

Everyone regardless of race, sex, nationality, religion, or any other status is entitled to certain human rights without discrimination. International human rights law lays down obligations for Governments to promote and protect the human rights and fundamental freedoms of individuals or groups (United Nations, 2023).

The Australian Human Rights Commission has raised concern about breaches of human rights legislation resulting from deportation of long-stay residents. For example, the enforced separation from children and other family members can result in breaches of Articles 17 and 23 of the International Covenant on Civil & Political Rights (ICCPR) that safeguard protection of family life (Coyle and Keyzer, 2016). The Commission has highlighted also that visa decision-making should give sufficient weight to Article 3 of the United Nations Convention on the Rights of the Child (UNCROC) which requires that the ‘best interests of the child shall be a primary consideration’ (Australian Human Rights Commission, 2013).

We have particular concerns about the practice of holding people in immigration detention for prolonged and indefinite periods. One of the authors of this article has direct experience of working with people with mental illness in detention in Australia and has witnessed the difficulties detainees face in accessing appropriate healthcare and the significant psychological harms that such detention inflicts.

Article 9(1) of the ICCPR obliges the Australian Government ‘not to subject any person to arbitrary detention, including for immigration control’. Furthermore, the Australian Human Rights Commission has expressed concern that the blanket policy of mandatory detention for all s.501 unlawful non-citizens may result in the arbitrary detention of some individuals who do not, in fact, pose a significant risk to the Australian community.

Fundamentally, section 501 is discriminatory

Our primary concern about this policy and practice, as indicated earlier in this article, is that the definition of what constitutes a substantial criminal record is fundamentally discriminatory, in that it conflates aspects of character with mental illness, and consequently equates prescribed treatment with criminal incarceration. Essentially, people are being penalised for being unwell.

Recent policy changes may ameliorate some negative impacts of procedural unfairness

To date, character tests have focussed unduly on subjective perceptions of criminality and have had no regard to avoiding harm or safeguarding well-being of people affected by decisions (McNeill, 2021). We welcome the intent to give weight to the strength, nature, and duration of a person’s ties to Australia, and the best interests of minor children impacted by potential deportation of a parent or caregiver. This acknowledges that for many s.501 deportees, Australia is not a short-term place of residence but all they know.

We recognise too that the new and less resource-intensive pathway to citizenship represents a significant step forward. New Zealanders living in Australia as citizens rather than long-term residents are afforded protection from the traumas experienced by people such as Patients M, S, and T described above.

Definitions conflate aspects of character with mental illness

However, Direction 99 does not change the underlying legal grounds for failing a character test on the basis of a substantial criminal record, as these are embedded within the Migration Act 1958. ² The character test itself has not changed – just the guidance on how it should be implemented. We note that sub-section 9.2 of the Direction requires decision-makers to consider a deportee’s age and health in identifying potential impediments to them maintaining basic living standards. However, the new guidance does nothing to address within existing legislation either the definitional problems conflating aspects of character with mental illness, nor the lack of attention to the potential detrimental impacts on rehabilitation programmes and well-being, for a population known to have high prevalence rates of mental disorders.

Limitations of guidance provided in directions

Direction 99 is the latest in a series of similar instruments regarding the s.501 character test issued since 2014 and subsequently revoked by Governments of the day. ³ By nature, the guidance provided in Directions is not enduring and can be revised, for example, following a change in Government. It is yet to be seen how Direction 99 will be implemented in practice, but we are not confident it will result in substantial changes for those with mental illness. We believe that the changes proposed are ‘too little, too late’. The welfare of this particularly vulnerable group is an oversight that should be addressed as a matter of urgency.

Our call to action

The practice of deporting people for behaviours that arise from mental illness works directly against the principles of psychosocial rehabilitation and recovery that strive to reduce prejudice and foster social inclusion. Vulnerable people are being discriminated against on the grounds of disability and denied their rights to be treated with dignity, humanity, and respect. Our concerns reflect views of psychiatrists from both sides of the Tasman (RANZCP, 2021).

Mental health practitioners have a duty, individually and collectively, to advocate for our patients. We and our professional bodies are well placed to emphasise the crucial role of family and community in supporting recovery and to articulate the detrimental impacts of legislation such as the Migration Act on the health and rehabilitation of our patients and their whānau. We call on the Australian Government to re-assess its deportation policies and practices to consider the mental health of people assessed under s.501, including the likely impact of deportation on a person’s chance of successful treatment, recovery, and rehabilitation. We emphasise also the pressing need to revisit how human rights implications of character decisions are properly given sufficient weight in the visa decision-making balance.