‘Disturbing’: Coalition demands answers after Victorian judges were trained on how to avoid triggering deportation laws

Federal immigration law allows criminals who are not Australian citizens to be deported to the Commonwealth provided they have been in the country for less than 10 years and have been sentenced to more than one year in prison.

The law was used to cancel the visas of 244 immigration offenders in 2023-24, including 50 for drug offences, 27 for child sexual offenses and 13 for rape and indecent assault.

But Victorian judges are reportedly being instructed on how to prevent criminals from being deported while they are punished for their crimes.

The instruction was part of professional development run by the court, and the Herald Sun revealed judges were given lessons on avoiding prison sentences for drug trafficking offences.

The training also included a hypothetical example of a Vietnamese student who had just arrived in Australia and sexually assaulted an eight-year-old boy on multiple occasions.

The magistrates recommended that the defendant be sentenced to 11 months and 15 days in prison to avoid deportation at the end of his sentence.

Federal Immigration Minister Dan Tehan described the reports as “disturbing”, telling SkyNews.com.au that Australians deserved to know whether the Labor governments in Canberra and Melbourne supported this training.

“The Federal and Victorian Labor Governments should state whether they support adapting criminal sentences to allow offenders to avoid deportation,” Mr Tehan said.

“Australians expect anyone found guilty of a crime to be punished based on the evidence before the courts to avoid breaching federal immigration laws.”

Victorian Premier Jacinta Allan said on Monday she had raised education concerns with Attorney-General Jaclyn Symes but deferred and said the courts were independent.

“I have some concerns about the report today and I have spoken to the Attorney General and he will be speaking to the courts about this,” Prime Minister Allan told a press conference.

“Acknowledging that the courts carry out this training, I leave these discussions to be held between the lawyer and the courts.

“They’re an independent arm in this state (and) I won’t be commenting publicly other than to say that this report raises some concerns, and counsel will take that up with the courts.”

Shadow attorney general Michael O’Brien described the prime minister’s response as “not good enough”.

Mr O’Brien said: “Premier Jacinta Allan has been writing the laws of this state for 10 years. She and her government wrote the Criminal Code which allowed these loopholes to be created.” he said.

“It’s time for Prime Minister Allen to stop talking a big game and start taking action, and the first thing he needs to do is close this gap.”

Mr O’Brien said offenders “should not be given reduced sentences because judges want to keep them in Australia”.

“If Victorian judges are deliberately being lenient on drug traffickers and perpetrators of sexual assault to save them from deportation, that tells you that the justice system in this state is fundamentally broken; people who commit serious crimes such as drug trafficking and sexual assault should feel full power.” “As required by law,” he said.

“A liberal government would review whether deportation should be considered as a form of punishment, because clearly some judges are trying to keep terrible criminals in Australia when the law actually provides them with the ability to punish them – and they appear to be abusing the offer – to be deported.” .”

A court spokesman confirmed to the Herald Sun that a professional development day was being held for judicial officers at the magistrates’ court.

“The focus of the day was penalties. “The law considers deportation a ‘relevant situation’ in terms of punishment,” he said.

The spokesman said it was common to use different scenarios in training sessions to highlight relevant legislation and discuss the correct application of legal principles.

“The scenarios are often taken from decided cases and can be modified to draw attention to a particular aspect of the law, for example section 501(3A) of the Immigration Act 1958 (Cth),” the spokesman said.

“Every judicial officer is an independent decision-maker on all matters before him and acts accordingly.”

According to the Judicial College of Victoria, Victorian courts may consider deportation a relevant factor in sentencing if it would make the burden of imprisonment more severe or cause the offender to lose the opportunity to settle permanently in Australia.

However, courts are not intended to consider deportation as a mitigating factor unless it creates real hardship for the offender, and this may only be taken into account when specific evidence is available or there is compromise from the prosecution.

Government data shows the number of non-citizen offenders whose visas have been canceled has fallen by a whopping 75 per cent over the past five years, from 1,015 in 2019-20 to 244 in 2023-24.