‘Disturbing’: Coalition demands answers after Victorian magistrates trained in anti-deportation laws

Federal immigration law allows the Commonwealth to deport criminals who are not Australian citizens, provided they have been in the country for less than 10 years and have served a prison sentence of more than one year.

The law was used to revoke the visas of 244 migrant criminals in the period 2023-2024, including 50 for drug offences, 27 for child abuse and 13 for rape and indecent assault.

But Victorian magistrates have reportedly been given instructions on how to ensure criminals are not deported if convicted of their crimes.

The instruction was part of the court’s professional development, with the Herald Sun revealing that magistrates were given lectures on avoiding prison sentences for drug trafficking crimes.

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

Magistrates were advised to sentence the suspect to 11 months and 15 days in prison so that he would not be deported at the end of his sentence.

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

“The federal and Victorian Labor governments must explain whether they support tailoring judicial sentences so criminals can avoid deportation,” Tehan said.

“Australians expect that anyone found guilty of a crime will be convicted on the evidence before the court so as not to circumvent federal immigration laws.”

Victorian Premier Jacinta Allan said on Monday she had raised her concerns about the training with Attorney-General Jaclyn Symes, but she deferred, saying the courts were independent.

“I have some concerns today about the report and I have spoken to the Attorney General, and she will speak to the courts about this matter,” Prime Minister Allan said at a press conference.

“I leave those conversations to the attorney and the courts, recognizing that the courts provide this training.

“They are an independent branch in this state (and) I will not comment publicly other than to say that this report has raised some concerns, and the attorney will discuss that with the courts.”

Shadow Attorney General Michael O’Brien described the Prime Minister’s response as “not good enough”.

“Prime Minister Jacinta Allan has been writing the laws of this state for ten years. She and her administration wrote the Sentencing Act that allows these loopholes to be created,” O’Brien said.

“It’s time for Prime Minister Allen to stop talking big and start acting. The first thing she needs to do is close this loophole.”

O’Brien said criminals should not be given “a reduction in sentences because magistrates want to keep them in Australia”.

“If Victorian magistrates are deliberately going soft on drug traffickers and perpetrators of sexual violence to save them from deportation, it shows that the justice system in this state is fundamentally broken. People who commit serious crimes, such as drug trafficking and sexual assault, should feel the full force of the law,” he said.

“A Liberal government will assess whether any consideration should be given to deportation as a sentencing measure, because it is clear that some magistrates appear to be using – and arguably abusing – this proposal to keep terrible criminals in Australia, when in reality the law is deporting them become.”

A court spokesperson confirmed to the Herald Sun that there had been a professional development day for judicial officers at the Magistrates Court.

“The emphasis of the day was on sentencing. The law considers deportation as a ‘relevant circumstance’ for the sentence,” the spokesperson said.

The spokesperson said it was common for different scenarios to be used during education sessions to highlight relevant legislation and discuss the correct application of legal principles.

“Scenarios are often drawn from decided cases and can be adapted to focus attention on a particular aspect of the law, for example section 501(3A) of the Migration Act 1958 (Cth),” the spokesperson said.

“Every judicial officer is an independent decision maker in every case before him and he acts on that basis.”

According to the Judicial College of Victoria, Victorian courts may consider deportation as a relevant sentencing factor if it will increase the burden of imprisonment or result in the offender losing the opportunity to settle permanently in Australia.

But the courts are not supposed to consider deportation as a mitigating factor unless it will actually burden the perpetrator, and it can only be considered if there is specific evidence or a concession from the prosecutor.

Government data shows that the number of non-state criminals who have had their visas revoked has fallen by as much as 75 percent in the past five years, from 1,015 in 2019-20 to 244 in 2023-24.