Punishment, deportation and parole: The detention and removal of former prisoners under section 501 Migration Act 1958
| DOI | 10.1177/0004865810392866 |
| Author | Michael Grewcock |
| Published date | 01 April 2011 |
| Date | 01 April 2011 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
44(1) 56–73
!The Author(s) 2011
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DOI: 10.1177/0004865810392866
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Article
Punishment, deportation and
parole: The detention and
removal of former prisoners
under section 501 Migration
Act 1958
Michael Grewcock
University of New South Wales, Australia
Abstract
Under s501 of the Australian Migration Act 1958, being imprisoned for a criminal offence can
constitute grounds for visa cancellation, even for people who have spent most of their lives in
Australia. ‘Non-citizens’ who have had their visas cancelled in this way are liable to detention
on completion of their prison sentence; form a distinct cohort within the immigration
detainee population; and are routinely deported. This article examines a number of recent
cases and draws on a series of informal discussions with s501 detainees during 2009 and a
series of formal interviews, as part of a pilot study, with a sample of six current and former
s501 detainees in 2010. The punitive implications of s501 are examined, including: its impact
on risk assessment and the parole process; the institutionalization of double punishment; and
the multiple mechanisms of disempowerment operating through the detention regime. While
this remains work in progress, it is argued that criminal convictions do not justify detention
and removal; that the administrative transformation of lawful into unlawful subjects rests on
various forms of illegitimate penality; and that this phenomenon ought to provide a greater
focus for criminological discourses on exclusion and risk.
Keywords
administrative detention, criminal deportation, double punishment, enemy penology
Introduction
On 20 October 2009, 43-year-old UK citizen Andrew Moore, who had been a permanent
resident in Australia since he was 11 years old, was deported to the UK. Prior to his
removal, Moore had been in immigration detention and was known to be suffering from
a number of serious health problems, including fibromyalgia syndrome, liver cirrhosis
and hepatitis B and C. He also suffered from mild asthma, hernia and depression. Moore
had a history of drug and alcohol abuse and his doctor in Melbourne had provided him
Corresponding author:
Michael Grewcock, Faculty of Law, University of New South Wales, Sydney, 2052, Australia
Email: m.grewcock@unsw.edu.au
with an open letter intended for doctors in London, recommending ongoing support
from an interdisciplinary team.
1
He was accompanied on the flight by five people, includ-
ing two federal police officers, his immigration department caseworker and a doctor.
He was left at Heathrow airport with a small amount of cash; some clothes given to him
by friends and his migration agent in Australia; and the address of a hostel in North
London. It is unclear whether he ever checked in at the hostel but two days later, he was
found dead on the street. Initial information from the local police suggested he died as a
result of a heart attack and/or deep vein thrombosis.
2
However, the inquest heard that
blood tests revealed the presence of anti-depressant medication, within the therapeutic
range, and a fatal morphine level consistent with recent heroin injection. The court
found that his death was caused by a dependent abuse of drugs.
3
A number of unresolved factual issues remain in this case but it provides a dismal
example of the routine removal from Australia of former residents who pursuant to s501
Migration Act have had their visas cancelled as a result of criminal convictions.
4
In this
case, the consequences literally were fatal, and I would suggest that those who made the
decision to deport Moore bear at least some moral responsibility for them. In virtually
all cases, multiple forms of additional punishment beyond those envisaged or sanctioned
by the sentencing court are inflicted upon the prisoner. This not only has damaging
individual consequences but also has the potential to undermine parole, risk assessment
and the nature of the sentencing process as a whole. Moreover, the operation of s501
allows for inconsistent and discretionary political interventions against unpopular and
often very vulnerable prisoners.
Section 501 detainees have their individual peculiarities, but the similarities stand out.
Regardless of their formal status, those I have spoken to mostly regard Australia as
home. Many have spent a significant portion of their lives in Australia and have their
social roots there. As the case studies below illustrate, they exhibit a range of charac-
teristics associated with general prison population such as mental health problems;
histories of alcohol and substance abuse; and disrupted work and education experiences.
They also feel frustrated and victimized by being arbitrarily detained for periods often
longer than the prison terms used to justify their detention. Highlighting these features
of the use of s501 enables us to view the alienating and exclusionary impact of depor-
tation on individual prisoners. This article therefore aims to add to the literature on
character tests
5
by focusing on the various dimensions of penality associated with visa
cancellation and deportation. These go beyond the acts of detention and removal and
include an opaque continuum of punitive administrative decisions that operate outside
the formal sentencing process.
It is difficult to obtain exact statistics on the numbers of people detained and deported
under s501. The immigration department tends to publish generic figures for visa
cancellations and the methods used for identifying s501 cancellations are inconsistent.
One problem with much of the reporting is that cancellations and deportations are not
clearly distinguished. However, a Senate hearing was told in May 2007 that 144 s501
cancellations occurred between 1 July 2005 and 1 June 2007.
6
According to media
reports, 44 deportations occurred in 2005–06 and 55 in 2006–07 (Bissett, 2008); while
86 visas were cancelled for character reasons in 2008–09 (Gibson, 2009). Detailed
academic analysis of the data concludes there has been ‘a sharp increase from a handful
of cases over the previous decade to hundreds of cases this decade’ but that ‘[i]t remains
Grewcock 57
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