Sentencing ‘Crimmigrants’: How Migration Law Creates a Different Criminal Law for Non-citizens

Abstract

It was once a criminal offence for a ‘prohibited immigrant’ to be found within Australia. Today, the mandatory detention regime sees the issue of whether a non-citizen may enter or remain in Australia as one solely within the ambit of administrative law. Yet non-citizen status continues to have consequences in criminal courts. This article examines the question of ‘what does criminal justice look like for non-citizens’ from two angles: the effect of character-based deportation upon the criminal sentencing process; and the differential punishment of non-citizens. It is argued that the sentencing of non-citizens in Australia is produced across an unstable boundary between immigration law and crime, creating a different, and diminished, criminal law for non-citizens.