Migration is once more in our headlines and it’s causing some headaches for our federal government.

Perceived as being a softer touch when it comes to immigration policy, the government when campaigning was pointed in its assertions that its immigration policies and that of the Opposition were so similar you could barely fit cigarette paper between them.

In a tale of how law can unmake the best laid plans by parliamentary and executive government, migration has once more proved to be a Labor Government’s Achilles heel.

Everything changed spectacularly for the federal government when the High Court intervened in NZYQ v Minister for Immigration Citizenship and Multicultural Affairs, a case that turned on its head the concept of indefinite detention. NZYQ, a criminal who was convicted of having committed a sex crime against a child, was discharged from detention because the High Court found his detention to be punitive and inconsistent with the intentions of the Migration Act. It was germane to his case that his detention was indefinite not because he hadn’t done his time for the earlier criminal offending; he had. It was because he was unable to return to his former homeland, and that left him in detention indefinitely. Not so, said the High Court. It found that the detention to be punitive in nature, which made it unlawful.

This proved a significant blow to the credibility of the government and its responsible ministers, the Minister for Immigration Citizenship and Multicultural Affairs and the Home Affairs Minister. If that might seem unfair given a court independently overturned existing jurisprudence, it was less so because during the proceedings the presiding judge had flagged that this might be the outcome. In short, critics pointed simultaneously to the fact that the Government had in effect been warned, and then to its apparent unpreparedness for what happened next, for there were many people in immigration detention centres who fell into the same category. There was nothing to do but release all of them into the Australian community.

As the number of criminal detainees were released in greater and greater numbers to comply with the order of the court, the nightmare just got worse for the government and its respective ministers, as it has for those Australians against whom crimes have been allegedly committed by some of the released detainees. The headlines have been relentless.

Some of the alleged offending was of a violent and serious character. The government’s response was to assure the public through its ministers that their departments and the Australian Federal Police would keep the released detainees on a short leash. They would be electronically tagged, monitored, surveilled, and in short the public need not worry. However there was a gap between the promises and undertakings, and reality.

Most of us were keeping up with this daily litany of disaster, and once the NZYQ case had been determined the story was more about ministerial and executive government competence or incompetence, than law, albeit law was the catalyst. That could have been the end of the story, but it wasn’t.

A public policy decision that had been made at an earlier time to please New Zealand and the then Adern Government, rose phoenix-like and tipped the Government from the frying pan into the fire.

It was again a series of legal decisions that caused the most recent headache for the government, but its origins lie in a change of policy, now haunting the present Minister for Immigration, Citizenship and Multicultural Affairs. It was the 9th and 10th of June 2022 when Jacinda Adern landed in Australia to congratulate her fellow Labor Prime Minister from across the ditch, and amongst other matters, to lobby for a change to Australia’s immigration policy.

New Zealand was annoyed by the consequences of a directive issued by the former Coalition minister for Immigration, called Direction 90. It was tough and allowed for deportations of criminals back to their home countries through a process of visa cancellation on grounds of bad character. In accordance with procedural fairness and the rule of law, those negatively impacted by a departmental decision to cancel their visa were entitled to apply for a review of what was an administrative decision to the Administrative Appeals Tribunal (AAT).

However, the stringent nature of the character test meant it was difficult to succeed. The directive had been drafted tightly, and the consequent effect in the case of New Zealand was that they were receiving their least wanted criminal citizens back on home soil because Australia had turfed them out. The 2022 Adern entreaty then to our Prime Minister was to re-visit Direction 90, an entreaty already rejected by the former PM and his Coalition government.

About six months later, the Minister for Immigration Citizenship and Multicultural Affairs issued a new Directive 99. The Directive is a Ministerial Directive, so its drafting, and the effect of its drafting, lies entirely at the feet of the minister and the government. Naturally enough with a changed Ministerial Directive, the AAT members began to apply the new criteria. But it seems that the extent of visas being reinstated by the AAT was unknown to the minister and his department. The consequences have been problematic to say the least.

Not only are we now dealing with the end of indefinite detention courtesy of the High Court in NZYQ, we are also witnessing the unforeseen consequences arising from the public policy change wrought by Directive 99. Daily we learn that visas cancelled by the department have been restored by decisions of AAT members relying on what they have been told are the relevant considerations to be taken into account by the minister himself in Directive 99. This has resulted in criminals earning the right to remain in our country.

The minister has looked guileless at best, but is it his fault? The PM has pointed to the fact that these decisions are being made by an independent tribunal. The thinness of that argument is that although AAT members are independent, decisions are not being made in a vacuum. They are being made by interpreting the government’s own drective. Why then is Directive 99 so problematic?

The issue from a legal standpoint point is that the balance of factors that the tribunal members are to take into account was changed. If the ingredients to be relied on by a decision maker in an administrative decision are altered, it flows that it may also alter the result. In the earlier Directive 90 there were 4 ‘primary’ considerations required to be taken into account by a decision maker. Those primary considerations centred around the interests, safety and expectations of Australian citizens.

Under Directive 99 a fifth primary consideration was added, namely ‘the (applicant’s) strength, nature and duration of ties in Australia’. In short, if someone who was objecting to the loss of their visa owing to criminal conduct and a failed character test, the AAT in reviewing the decision, was now required to additionally take in to account the fact that although the applicant was a non-citizen, they may have spent most of their life in Australia.

AAT members were required to take into account an applicant’s ‘ties in Australia’. Call it the ‘Kiwi amendment’ if you will. The effect was that a New Zealand resident for instance, who had spent a lifetime in Australia but wasn’t an Australian citizen, could ask the AAT to rely on that fact in their application to have the cancelled visa reinstated. That was not so under the earlier Directive 90.

Further, a tribunal member is not entitled to just ignore that aspect of the test set out in Directive 99. The government through its minister was telling the AAT to have account to that factor, as a primary consideration. It was plainly foreseeable then that the amended Directive 99 would lead to different outcomes in the AAT. Whilst Australians may be unhappy with the consequences of Directive 99, we should not be turning to blame the AAT. Its members are just doing their job. Directive 99 expressly provides that ‘decision makers must take into account the primary, and other considerations relevant to the individual case’.

This has come at a time however when we are simultaneously fighting the battle against violence against women, and family and domestic violence more broadly. Directive 99 has led to outcomes that seemingly fly in the face of those attempts, contradicts the government’s own rhetoric on the subject, and in retrospect was done for the wrong reasons; to appease New Zealand and its then PM. The problem is we can’t have a New Zealand only law. Law applies to every person irrespective of nationality. This amendment may have been done for one purpose, but the law cannot be singular in its application.

In the meantime, the horror show for government continues with decisions made earlier by the AAT, restoring visas to terrible criminals because of their ties to Australia, surfacing daily as journalists do what they are supposed to do; uncover the facts and explain them to Australians.

At least the PM and minister have now acknowledged that Directive 99 must be altered, and the minister using his discretion has been busily reinstating his department’s earlier visa cancellations overturned by the AAT.

Just when the federal government wanted to look tough on immigration it relied on the legal status quo in one instance, and changed policy direction in another. Moreover, there is a sense amongst some in Australia that we might have overdone our migrant intake owing largely to the granting of student visas, compounded by more asylum seeker boats turning up on our shores indicating that people smugglers are back in the game.

In an example of law colliding with public policy, embarrassing more than one minister and making the government seem flat footed, there is no doubt that immigration is once more ‘top of the pops’ when it comes to policy areas come our next federal election. But for lawyers it is a textbook testament that both legislative and amendments, altered regulations, and in this case, amended ministerial directives, come with unforeseen consequences. It is also a happy reminder of the independence of courts and tribunals in Australia, that don’t always do what governments want or expect. Long live the separation of powers.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia and a past office holder of the Liberal Party.