The vague wording and risky assumptions that landed Labor in a deportation debacle

All week in parliament, Anthony Albanese and Andrew Giles have expressed frustration that in overturning visa cancellations affecting foreign-citizen convicted criminals, the administrative appeals tribunal (AAT) did not apply enough “common sense”.

With further comments from their cabinet colleague Murray Watt on ABC’s Insiders on Sunday, it is finally clear what they mean. The clue is in the use of numbers and letters.

In listing “primary considerations” for the home affairs department and the AAT to weigh up in making these decisions, the executive government intended them to be ranked in descending order.

The department (and presumably the AAT) didn’t automatically do that because that’s not what its written direction expressly says.

This is about the wording in ministerial direction 99, the guide used by the minister’s departmental delegates in the first instance to decide if there are good reasons to overturn a convicted criminal’s visa cancellation. Where the delegates decide the cancellation should proceed, the same direction is then used by members of the AAT who adjudicate on appeals to those decisions.

Section 501 of the Migration Act triggers the cancellation process when a visa holder is convicted of an offence punishable by 12 months or more in jail.

But the law also provides some wriggle room, in the form of a ministerial direction setting out issues to be considered in deciding if the person should indeed be deported or can stay.

Ministerial direction 99 lists five “primary considerations”. Issued in January last year, it updated the Morrison government’s version, direction 90, which had four.

Those were: the protection of the community; whether the offending conduct involved family violence; the best interests of minor children in the person’s family; and community expectations.

These conditions were numbered one to four in that order.

At the instruction of Albanese, the immigration minister amended that – creating direction 99 – to add one further consideration: the “strength, nature and duration” of the person’s ties to Australia.

He slotted it in at number three.

The numbering and the fact that it was dropped into the middle of the list, not just added on at the end, indicate these considerations were meant to be weighted in that order. It suggests the government thought it more important than the two below it.

That seems to be what the government intended. But it simply assumed that’s how it would be read – the order does not spell it out.

Instead, it says only that “one or more primary considerations may outweigh other primary considerations”. In other words, the deciders can weigh them up against one another and decide their relative importance. It doesn’t say that number one is meant to be number one.

But Watt’s comments on Sunday suggest that’s what the government intended.

“Obviously, what it aimed to do was to recognise the difficult situation where some people involved have been in Australia for a long time – in some cases since they were a toddler or baby,” Watt said. “But that doesn’t mean that we intended for community safety to be relegated below that as a priority. It was always our intention that community safety would be a primary consideration.”

What he means is that it was intended to be the primary consideration of the primary considerations. First among equals. Number one.

But Guardian Australia understands decision-makers viewed them as being equal because nothing expressly ranked them in priority order. The direction was not clear on this point.

Possibly supporting the suggestion that the government thought they would be seen as being ranked in order, the “other considerations” are listed differently.

These are not numbered. They are listed by bracketed letters – a, b, c, etc – suggesting they’re a bunch of equal also-ran factors.

On that list are: any legal consequences of the decision; the extent of impediments if the person is removed; the impact on victims; and the impact on Australian business interests.

The existing direction 99, which runs to 24 pages, also lays out detailed principles the decision-makers should follow in weighing the considerations.

“In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation,” the last listed principle says.

To explain further, it suggests, for example, that in a case involving family violence where there is no evidence that the person poses a further risk, the community’s expectations on such matters may nevertheless need to prevail. This suggests that even if the listed factors are meant to be weighted by their numbered order, sometimes if number two and number five align, they may outweigh number one.

Common sense is not mentioned. The government assumed it was implied.

Giles and Albanese have now indicated the soon-to-be revised version of ministerial direction 99 will put a premium on community protection. Giles has said it will also deal with “some additional concerns that we see around victims and their families”.

Expect, at the very least, a line to be added saying the primary considerations should be weighted by their numbered order, which already has community protection first, if not placing it more expressly on its own. And the particular “other” consideration mentioning victims may now be either elevated to the first list or expressly emphasised within the second.

Sometimes, even common sense requires clearer direction.