The Return of “Transportation” Sentencing? Australia Seeks to Ship Illegal Aliens to Small Pacific Island

It has been 157 years since the last ship taking convicts from the United Kingdom landed in Australia.  Now, in a crushing historical irony, Australia is contracting with the small Pacific island of Nauru to resettle foreign-born criminals who the courts have ruled cannot be imprisoned indefinitely. The court rulings show how our allies are facing the same dilemma in dealing with people who enter the country illegally and then oppose efforts to deport them for years in litigation.

Starting with the “First Fleet” in 1788, English courts regularly sentenced convicts to “transportation” to Australia, where they were used for labor in the then-British colony. For years, the British left prisoners in rotting warships called “hulks” in the Thames River. Under Prime Minister William Pitt the Younger, the government solved the problem with the use of Australia. Convicts dreaded the common sentencing line issued by British judges: “The sentence of the court upon you is, that you be transported beyond the seas for the term of your natural life.” It became so common that Historian K. S. Inglis noted that “The founders were not a chosen people except in the old Australian joke that they were chosen by the best judges in England.”

The current move is not to use immigrants for labor, but to remove individuals without a technical deportation. The move follows the 2023 decision by Australia’s High Court that non-citizens who have no viable resettlement options outside of Australia must be released.

These deportees are largely individuals who engaged in criminal conduct. However, the court ruled that some countries, such as Afghanistan, are considered unsafe for their nationals to be repatriated, while others, like Iran, simply refuse to accept them back if they are being transported involuntarily.

One such individual was identified as NZYQ in court papers and came from Myanmar through a smuggler and proceeded to rape a child soon after being released into the Australian community. After serving a prison sentence, he was held by authorities until he was ordered to be released again into the population.

The government is reportedly moving to introduce legislation to strip the right of fairness from deportation decisions under the new Nauru deal. It would negate canceled visas that are under appeal in court.

Like Australia, the United States needs to address an immigration process that allows individuals to game the system for years despite orders of removal. The system is simply not working and, with millions allowed into the country under the Biden Administration, Congress needs to streamline the system for expedited removals.