Punishment,deportation and parole: The detention and removal of former prisoners under section 501 Migration Act 1958

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.