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Dutton Stacks The Deck – Deportation & Section 501

14 February 2018

With the arrival of white settlers, Australia began life as a prisoner island. Many of those first immigrants were convicts; many finding themselves transported under the harshest of conditions and often for little more than acts of petty crime.

The formative years of our nation – an era where the transportation of convicts was an accepted cultural norm – is now universally viewed as a period marred by harsh violations of human rights.

The theme of convicts and immigrants still plays out in present day, but now the transportees are called 501’s. You could be forgiven for not knowing this, as much of the ‘501 phenomenon’ has played out without great public scrutiny.

In 2014 under the Abbott government, Section 501 of the Migration Act was amended to allow for the mandatory visa cancellation and detention of long-term permanent residents deemed to be of bad character. The introduction of section 501(3a) was always controversial, and the subject of much criticism and concern. In the two years following its implementation, this legislation change has resulted in a 1,100% increase in individuals placed in detention on ‘character grounds.’ Whilst this is passed off as the protection of the Australian community from a ‘criminal element’, what is particularly chilling is the set of sweeping discretionary powers this legislation gave to just one man – namely the Minister for Home Affairs.

Reason and common sense dictate that it is supreme folly to accord virtually unchecked powers to one person. It means we are left to rely on the moral fibre of an incumbent minister to uphold the spirit and intent of the legislation in a fair and just manner. With great power comes great responsibility’ as the saying goes. And therein lies the problem. In Peter Dutton we have a veritable monkey with a match in a barrel of dynamite. This is a man who displays open contempt for the judiciary; who sees the court system as little more than a frustrating impediment. He is nothing if not transparent – it is not hard to see a man consumed by self-righteousness and driven by a personal vendetta to rid the country of all that he personally considers to be vile and wrong. And in that sense, he is little more than a self-appointed vigilante – a man who holds to the belief that the soft judiciary cannot protect us; who attempts to take matters of law into his own hands.

Section 501 has effectively equipped this vigilante Minister with a weapon of mass destruction. So how does a 501 visa cancellation actually work? Simply put, it can be likened to a card game which has the deck rigged in favour of the house:

You are a permanent resident who has been given a prison sentence of 12 months. Whether you like it or not, this automatically makes you a 501 player. On completion of your prison sentence, you are notified that your visa has been cancelled and you are offered the opportunity to present a submission in writing to the Minister telling him why you feel you should keep it. Let the game begin. Even though you have a home and job to return to, you will be placed in a detention centre which is the equivalent of a maximum security prison. You are likely to be moved to a facility like Christmas Island where it is virtually impossible for your wife and children to visit you. Locked down with restricted movement, you will suffer from some degree of mental and emotional anxiety, depending on your strength of mind. Unlike prison, nobody can tell you how long you will be here. By the time the Minister has read your submission and is ready to play, you will have been in detention almost 12 months. The wait is getting longer because of the massive rise in people detained, waiting to play 501. Let us consider your cards. In your case, you have a strong hand; a ‘Full House’ – you have lived here for 40 years and your entire family now reside here. Both your young children were born in Australia. You also have a “Get Out Of Jail Free’ card – you have lived lawfully and have no criminal record apart from one mishap, and you were granted parole on the basis that you present little risk to the community. The stakes you’re playing for are your home, your loved ones and your way of life. What monetary value do you place on this? You cannot afford not to play. Sobbing on the phone, your wife tells you that if you had only become an Aussie you would be back home with them. The only reason you are suffering through this nightmare is that you didn’t apply for citizenship. And that is not actually a crime.

Anyway, back to the game. The rules from here are that the Minister must consider all the cards in deciding your fate. However he can trump any and all cards simply by saying: ‘I have looked at your cards and I think you’re a risk to the community and it is in the national interest to deport you.’ In your case, the Minister plays his standard game and does just that, saying ‘I considered your ‘Full House’ and it is not enough. Your visa remains cancelled.’

So what now? Surely there is some check and balance to ensure the Minister made the right decision? Your only course of action from here is to appeal to the referee – the Federal Court. If the Minister made a judicial error when trumping you – if he overlooked an important card – the Court may overrule his decision. So you wait another 6-9 months for the referee to review your case. By now the relentless stress has caused your physical, mental and emotional health, and that of your estranged loved ones to decline further. Your youngest daughter has withdrawn and is seeing a psychologist. Your wife is working a second job to support the family in your absence, and is on the verge of a nervous breakdown. You feel powerless and responsible, and now require medication to sleep.

Fortunately, the court decides that the Minister was in error because he did not consider that vital ‘Get Out Of Jail Free’ card. It is relevant because it means the judiciary have assessed you to be of negligible risk, which contradicts the Minister’s judgement that you are a threat to the community. They rule the visa cancellation decision be quashed on that basis.

The referee has ruled in your favour! So you’re in the clear, right? Wrong. In this game, the referee can’t actually give your visa back. They can only tell the Minister to review his decision according to law. So you are returned to the detention centre while the Minister looks at your cards for a second time. More weeks of waiting drag by.

Now, in a game of tennis or cricket, or any other sport for that matter, the referee’s decision is final. Not so with 501 where the Minister is hell-bent on making his decision final, no matter that a court rules otherwise. And so you rot in a detention centre, awaiting the day when the Minister makes his next play. This is most likely to be: ‘I re-considered your ‘Full House’ AND your ‘Get Out Of Jail Free Card’ and it is not enough. I still consider you a threat to the community and in the national interest your visa remains cancelled.’

How confident would you feel playing Dutton’s 501 game?

Lawyers will speak of their concern with respect to the course that Section 501 has taken. Minister Dutton has capitalised on these broad powers to remove as many people as possible, including one-off offenders with otherwise lawful backgrounds. Even people who have done prison time decades ago and left the past behind have answered a knock on the door in the small hours of the morning; finding themselves dragged away to an immigration detention centre. And like the transportees of old, all have found themselves estranged indefinitely from partners, children and family as a result. Not since the Second World War has Australia deported permanent residents in such record numbers. Dutton has demonstrated precious little by way of compassion in many of his heavy-handed decisions, which have torn families apart. It would be fair to say that he presides over a deportation regime which has effectively created a second stolen generation.

The Commonwealth Ombudsman has suggested that the monster which Section 501 has become goes beyond the original intention of the provision. The Australian Human Rights Commission concurs, and has consistently called for an end to Australia’s system of mandatory detention for ‘unlawful non-citizens’ because it leads to breaches of Australia’s international human rights obligations.

With the possibility of a Labor government taking power at the next federal election, it is time for Shadow Minister Shayne Neumann to clarify his party’s position regarding the over-reach enacted courtesy of this sweeping set of administrative powers. Can we expect more of the same heavy handed treatment under Labor, or will judicial fairness and ministerial accountability prevail?

Giving an address at the Law Council of Australia’s Immigration Conference last week, Neumann stated that Labor strongly supports the cancellation of visas on character grounds under Section 501 of the Migration Act.” He should have no complaint from the public in this respect – the protection of the Australian community must be held paramount. But here’s the thing – the majority of people now being caught in the 501 net are not ‘hardened criminals’ as Peter Dutton likes to paint them. Many have made a serious mistake which they will likely remember for the rest of their lives. They have paid their dues in the eyes of the law and the courts. Bear in mind that with respect to their risk to the community; if they were Australian citizens they would actually be back in the community, as a court or parole board has assessed them to be of negligible risk. Is it appropriate to break these people mentally, emotionally and financially while they await a second judgment by the Grim Reaper, simply because they remained permanent residents and didn’t become Australian citizens? What does the word ‘permanent’ mean, after all? How do Labor and Shayne Neumann plan to navigate this situation?

Mr Neumann further observed that “decisions made under Section 501 are too important for an Immigration Minister to get wrong or make legal errors.”

Recent history shows the Minister has made legal error on several occasions. When a Federal Court rules the Minister is in error and he subsequently over-rules the finding of the judiciary – often within hours of their ruling – I think you will agree that we have a problem. Apart from Dutton’s 501 game; how many legitimate sports can you name where one of the players can actually over-ride the decisions of the referee?

This week Minister Dutton cancelled an individual’s visa for the third time – he has now overturned the rulings of a court demanding he re-instate the man’s visa on two separate occasions.

Will this stacking of the deck’ continue under a Labor government?


Please share this article with Labor MPs for their review and comment:

Hon Shayne Neumann MP – Shadow Minister for Immigration: @ShayneNeumannMP

Hon Mark Dreyfus QC MP – Shadow Attorney-General: @markdreyfusQCMP

Hon Bill Shorten MP – Leader of the Opposition: @billshortenmp

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  1. Matters Not

    Given the chance, Dutton will withdraw Rudd’s Apology to the Stolen Generation. The record shows he walked out of the house during the delivery and asserted:

    “I regarded it as something which was not going to deliver tangible outcomes to kids who are being raped and tortured in communities in the 21st century,” Dutton said.

    “Now, if I thought for a moment that it was going to deliver positive outcomes to those kids, to their families, to those communities, then I would support it in a heartbeat.”

    It appears that Dutton opposes rape and torture BUT he has presided over the rape, sexual abuse and deaths of refugee men, women and children under his care. Methinks he is a hypocrite both then and now. Giving Dutton any power over humans is unacceptable. But we allowed this to happen either wilfully or by omission.

  2. johno

    MN.. well said. Dutton is a fear monger and greatly lacks compassion and empathy.

  3. Andy P

    Peter Dutton is in my view a narcissistic sociopath and is unfit for office on that criteria alone. He has a constant need for attention and power, disregards laws or accepted societal norms that do not fit with his worldview or agenda, and seems to be devoid of and sense of empathy or regard for others. He is cruel and seems to delight in the misfortune and emotional pain of others. Given the opportunity, I feel he will attempt to extend his powers further at any opportunity. A completely vile excuse for a human being. I have nothing but contempt for him and our gutless PM that allowed him so much authority. I would love to see him forced to undergo a psych review and to be found in contempt of court. He has no business being a member of parliament.

  4. etnorb

    Sadly this Dusty creature has NO scruples, NO morals, NO reasons, for EVER being “in charge” (?) of anything to do with immigration etc. He is yet just another inept, lying toe-rag obscenely over-paid, so-called “politician” of the so-called “liberal” variety. As a former police officer you would think his views etc of the Judiciary etc would be FAR better than the negative & contradictory one he openly states! He should NEVER have been appointed to ANY position of authority etc in the parliament, then again, NONE of his cronies in the Liberal/National mob should be in power! The sooner the effing lot of them are gone, the better off ALL Australians will be. As for whether the Labor mob will be any better, especially in relation to the ill-treatment of immigrants, I wonder. I seem to think they have not “objected” to anything that the Libs have done so far in the “treatment” they are dishing out to any of the would-be immigrants. Time will tell, as to whether the Labor mob will be better than the Libs, but we can only hope so!

  5. Cool Pete

    This Dutton creature deserves the hangman’s noose more so than Ribbentrop, Goering (even if he cheated with a cyanide pill) and the others. I don’t support the death penalty usually, but for evil bastards like him, I make an exception.

  6. Nilda

    Dutton is a harmless cold Criminal Danger to Democracy and HUMANS Rights

  7. Papuq

    My 22 year old nephew, who arrived in Australia aged 5, hung himself after being deported to a country where he barely spoke the language. He left his wife and child behind in Australia. Suspended sentence for minor crimes.

  8. win jeavons

    Papuq ; I have said elsewhere, and firmly believe that this man and those who cooperate with him , or vote for him, have blood on their hands, and hopefully their consciences ( of they still have one!)

  9. Glenn Barry

    Dutton deserves to be investigated, charged and hopefully convicted for crimes against humanity – I just wish I knew a way to facilitate the process.

    The recent spectacle of Bribery Joyce and the revelations about the promiscuous world of Canberra makes me think he must have some compromising information concerning Turnbull – there’s just no other explanation for his promotion

  10. Trevor

    Dutton, the ex Qld cop utilises all his qld police training and little else in his life as a disgrace amongst a conga line of disgraceful political cowards, spivs and thieves that inhabit the benches of Parliament.
    Dutton of course gets a “special mention” as the “coarsest of arseholes” that sees taxpayers as a welfare bank for Lazy Noxious Predators that inhabit the Government of Australia.

  11. johanna mackenzie

    I agree with all previous comments however we can do more good by sharing above letter especially to other politicians who may just leave the room when the ICC investigates and charges this sociopath please share and write phone txt whatever this vile person has to go

  12. Leo Jai

    Papuq: There are no words for the trauma that you and your family, your nephew and his wife and child have been through.
    My thoughts and with you and rest assured there are people who know and care. You are not alone.

    Johanna Mackenzie is right – these stories need to be shared to ensure changes are made and the people guilty of these atrocities meet with the justice they deserve. Those in power who see this injustice and do nothing to stop it are complicit.

  13. Andreas Bimba

    Very well written Leo. We have a truly appalling home affairs minister, prime minister, cabinet, government, ruling parties, mass media and even a large segment of the populace that bleats for more.

  14. jimhaz

    This sort of legislation is one of the reasons I’ll never vote for the conservatives and I’m rather hard hearted fellow relative to this forums population.

    I find it really disgusting, blatantly unfair and excessively cruel. I’ve seen news articles about its application in practice that have made me curse. Perhaps the worst “double jeopardy” I’ve seen a government do.

    I’m against immigration, as it has been too high, but once people are here legitimately, or even for a long time, they need to be treated equally and that means with avoidance of policy induced harm. They are our people, our responsibility.

    It is not the Australia I identify with.

    (don’t bother calling me a bigot in relation to refugees – the circumstances are different, this article’s issue is totally manageable by decent domestic policy)

  15. Glenn Barry

    The only category in which Herr Dutton is supreme is if he ate it last night for dinner, supreme as in pizza, on every other measure his is the low standard.

    South Africans I’ve encountered have covered the full spectrum as far as personalities, however I have encountered a few white former South African’s that any reasonable person would emigrate to avoid – they really considered themselves part of the master race

  16. Cubism

    Great article. I hope for Australia’s future that Dutton loses his seat at the next election and a Labor government undoes this government’s excesses. That’s assuming Herr Dutton allows Australia to continue having elections.

  17. Kyran

    Indeed Kronomex, you have to wonder about this ‘person’. In addition to setting up a gun lobby to act as an advisory panel and to ‘fast track’ a visa for white SA’s when their government has stated there has been no diplomatic approach by Australia, he also did a back flip on the Sri Lankan ‘deportee’s’ you referenced the other day.

    “On Tuesday, having been detained more than a week, the family was flown from Melbourne to Perth, where they were put on an aircraft with several other Tamils, who were removed to Sri Lanka last night.
    However, a last-minute legal intervention resulted in Border Force officials removing the family from the plane.”
    So the family was taken in a dawn raid and moved from Brisbane to Melbourne to Perth. Whilst they are not on their way to Sri Lanka you have to wonder where this ‘person’ will put them next.
    As for the one’s who were returned to Sri Lanka and the others Dutton has already sent back, you have to wonder when the UN will start hearings about refoulement. As of a few days ago;
    “Sri Lanka’s government has declared a state of emergency for 10 days to maintain law and order after an outbreak of religious violence.
    It has also imposed a police curfew after Buddhist mobs attacked a mosque, Muslim businesses and houses. One person was reported to have died.”

    Pezzullo must be disappointed the only front man he could get for his megalomaniacal pursuit was the greatest idiot of all time.
    Take care

  18. helvityni

    Glenn Barry, when kids started primary schooI I opened up a small business selling fresh flowers and plants.

    One day a South African lady came in and asked in a very loud and clear commanding voice: Have you got any black boys. Of course I knew she was asking for a plant by that name, but I felt like replying: Sorry, out of both white and black boys…

    The other day Husband happened to be around when she visited the shop; she did not buy anything but promptly asked if he could fix her gate, to my great annoyance he did it, but hardly got a thank you, no offers of cups tea….

    And what’s more she shared the house with her son’s family. Maybe the son was of a higher caste, above gate fixing…

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