The dispute over Australia’s deportation of New Zealand citizens who have been sentenced to prison reflects different approaches to human rights and immigration politics in the two countries.

When New Zealand Prime Minister Jacinda Ardern visited Australia last week to deliver an address in Melbourne on good governance and to meet with Prime Minister Scott Morrison, the conservative Australian media were openly hostile. Ardern announced in advance that she would be raising the question of mandatory deportation of New Zealand citizens resident in Australia who had been sentenced to 12 months in prison, as well as smoothing the path to citizenship for New Zealanders resident in Australia.

Commentator Gemma Tognini told Sky News Australia host Peta Credlin “It’s very, very cute for her to come to another country and morally posturise the way she has been.” On the same program, Jeremy Sammut of the Centre for Independent Studies described the deportation issue as “touchy feely,” and “a very strange priority for [Ardern] to have.”

Despite the criticism of Ardern, there was little discussion in the Australian media of the actual issue of mandatory deportation, unlike in New Zealand where it has been covered extensively. In fact it pre-dates Ardern’s time as prime minister and has its roots in the longstanding free movement between the two countries.

Under the terms of the 1973 Trans-Tasman Travel Arrangements, most New Zealand citizens can move to, work and live indefinitely in Australia, as can Australian citizens in New Zealand. New Zealanders in Australia are issued special category visas and don’t need to apply for permanent residence. Many have taken advantage of this flexibility: 2013 Census figures estimate that about 650,000 New Zealanders are living in Australia, and about 62,000 Australians in New Zealand.

While in both countries the proportion of each other’s citizens is less than 3 percent, the higher number of New Zealanders living in Australia reflects the greater economic and employment opportunities available — or perceived to be available — in the larger economy across the ditch.

Despite the relative freedom of movement between the two countries, citizens of each country do not enjoy equal treatment while resident in the other: Australia has restricted the entitlement of New Zealanders to welfare benefits since 2001, while Australians in New Zealand are entitled to nearly all the benefits available to New Zealanders. But a significant new challenge to the principle of free movement arose with Australia’s 2014 Migration Act, which provides for the mandatory cancellation of the residence visas of non-Australian citizens who do not pass a character test by reason of the fact that they have been sentenced to at least 12 months in prison, or have committed child sexual offences.

All non-citizens have been affected by the law change, but in practice the largest group of those deported have been New Zealanders. They are particularly vulnerable to the deportation penalty, as the special category visa which entitles them to live and work in Australia has, unlike permanent residence, no pathway to citizenship. By February 2019 over 1600 New Zealanders had been deported back to New Zealand from Australia. Moreover, over 300 of these have been held before deportation in immigration detention centres, including the notorious Christmas Island facility. Many of those deported had lived the great majority of their lives in Australia, sometimes since infancy, and have no family or community connections in New Zealand.

The current Labour-led government is not the first in New Zealand to protest mandatory visa cancellation. When the 2014 Act was passed, conservative National Prime Minister John Key criticised it as contrary to the “Anzac bond” between the two countries. Ardern raised the issue in bilateral talks with Morrison in Auckland early in 2019, describing it as “corrosive” in the close relationship between the two countries. She pointed out that deportees were being punished twice: first by imprisonment in Australia, and then by their forced exile from family and community. This has made it more difficult for them to rehabilitate and reintegrate into a community.

Coalition prime ministers in Australia have publicly ignored these fairness and human rights-based arguments, maintaining what they describe as Australia’s right to exclude non-citizens who commit crimes and constitute a danger to Australians. Nor has the Labor Opposition challenged the policy. Out of the public eye, there has been some recognition of the merit of New Zealand protests. A February 2019 report by Australia’s parliamentary Joint Standing Committee into the visa cancellation recommended that the historic special immigration status of New Zealanders should be taken into account when considering the cancellation of visas of New Zealand citizens who have lived in Australia for many years, except when they have committed “serious violent crimes.” However, the report’s recommendations have not been taken up by either the Government or Opposition.

New Zealand by contrast allows for — but does not require — the deportation of non-citizens imprisoned for crimes. Yet the longer the offender has lived in the country, the lengthier the sentence must be to raise the possibility of deportation. Eight Australians have been deported over the past three years. This recognition of the moral obligations of New Zealand towards its non-citizen residents reflects the different framing of this issue in the two countries. In Australia, where opposition to the entrance of asylum seekers and commitment to offshore detention continue to be a popular policy of the Coalition Government, the right to control entry and exit across borders is a familiar and uncontroversial justification for policy. In New Zealand there is much more of a focus on the human rights of those seeking or denied visas, and a relatively low level of public concern about border security. This is reflected also in Key’s and subsequently Ardern’s standing offer to resettle some of the asylum seekers in Australia’s offshore detention centres. Australia has refused to entertain the offer, on the grounds that refugees might later be able to get into the country as New Zealand citizens.

Human rights and ethics have become much more prominent in public discourse in New Zealand since the election of Ardern’s Labour government in 2017, and particularly since the Christchurch terror shootings in March of this year. Moreover, Ardern has enjoyed very high levels of public approval both abroad and at home for her leadership and sensitive handling of this tragedy. In May a poll of Australians rated her the most trusted and believable politician, considerably ahead of Australian political leaders on both sides. Scott Morrison and Tony Abbott ranked in the bottom five out of 12. This will not have won Ardern any friends among Australia’s conservative commentators. Her greater public emphasis on the injustice of the deportation issue, compared to Key, is consistent with her morally grounded approach to politics and leadership, although it is unlikely that she was any more surprised by Morrison’s refusal to change policy than was her conservative predecessor.

Despite indignation in New Zealand at Australia’s continued refusal to recognise the special circumstances of New Zealand residents, and conservative commentators’ resentful dismissal of Ardern’s criticism, the issue in itself is unlikely to seriously damage bilateral relations. Apart from the historic and family ties between the two countries, differences in views about the role of human rights and moral considerations in politics are not likely to outweigh the importance of economic interdependence and policy integration.

Katherine Smits is associate professor in Politics and International Relations at the University of Auckland. She specializes in political ideas about liberalism, multiculturalism and nationalism, and can be contacted at k.smits@auckland.ac.nz.

This article is published under a Creative Commons Licence and may be republished with attribution.