EXPLAINER: Why Peter Dutton Already Has The Power To Enforce A Trump Muslim Ban

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Donald Trump has hit a legal roadblock in his bid to ban Muslims from entering the United States. No such hurdle exists in Australia, write Michael Brull and Duncan Fine.

Every day it seems Donald Trump commits some new social, political or constitutional horror. Perhaps the most egregious in the short few weeks of his administration was the infamous Muslim ban.

Here in Australia, Immigration Minister Peter Dutton quietly proposed a bill last year which has lately been described as offering “Trump” powers. The bill, being considered by parliament now, is horrendous.

Its long overdue public scrutiny is welcome, but regardless of whether or not the bill passes, it is worth understanding that Dutton probably already has Trump powers. In the US, the courts have offered strong resistance to Trump’s attempts to ban Muslims. It is unlikely Dutton would face the same barriers here.

Trump tried to implement his campaign pledge to ban Muslims by banning people from seven predominantly Muslim countries in the Middle East, through an executive order. The Australian government used a similar concept – the power of the executive – to keep the Tampa from coming to Australia in 2001. The full bench of the Federal Court of Australia upheld that action.

Justice French, who was later appointed Chief Justice of the High Court, explained that, “The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australia community, from entering.”

Or in other words, we have the right to determine who comes to Australia and the circumstances in which they come.

US president Donald Trump. (IMAGE: Gage Skidmore, Flickr)
US president Donald Trump. (IMAGE: Gage Skidmore, Flickr)

If there is a question over whether that power could be applied to impose a Muslim ban, it is because there is already legislation that gives that power to the government. The Migration Act provides that Dutton can suspend the dealing with visas of a specified type until he says processing should resume. There are some inconsequential qualifications, which have no bearing on his power to do that tomorrow, and thus impose the ban that Trump has been struggling to impose in the US.

Dutton could specify the type of visa he doesn’t want to deal with. Or he could determine the maximum number of visas of a specified class to be dealt with in a year. That maximum, however, can’t be applied to temporary protection visas or safe haven enterprise visas. This is because the government lost two cases in the High Court. Thus, whilst the government could announce that it would only give three visas next year to people from Muslim countries, that limit would not apply to refugees.

The way Dutton would impose those possible bans is through a legislative instrument. Legislative instruments are a type of sub-legislation that certain empowered figures can make if legislation gives them that power. Dutton has the power to make that type of sub-legislation under the Migration Act. Not only that: Dutton has the power to make a particular type of sub-legislation. This particular type is excluded from the type of review that usually applies to legislative instruments.

Normally, as legislative instruments aren’t passed by parliament, but can have wide-ranging effect, they can be vetoed by either the lower or upper houses of parliament. So if the Senate or lower house of Parliament don’t like a legislative instrument, they can disallow it within 15 days through a majority vote in that one house alone. However, a handful of legislative instruments are excluded from that type of review. That includes the power given to Dutton.

So Dutton could ban Muslims tomorrow. He already has Trump powers.

Those powers could be challenged. Banning people from (say) Arab countries might breach the provisions of the Racial Discrimination Act. But if the government were to announce it was simply banning Muslims, it could get away with that. Under the RDA, Muslims aren’t considered a race. So the government could discriminate against them, without it constituting racial discrimination.

The sole barrier would be the constitutional protection of freedom of religion. Yet the High Court has consistently read down those provisions, to the point where it is unclear if they will offer substantive defence of rights in Australia.

At Junkee, postgraduate law student Hannah Ryan consulted various legal experts on whether such a ban would be constitutionally valid. Whilst George Williams dissented, other experts thought that such a ban would survive such a legal challenge. Professor Helen Irving rightly observed that the constitutional protections of freedom of religion in Australia have tended to be interpreted “very narrowly”. If the courts were to find that a Muslim ban was unconstitutional, it would require a bold leap of judicial activism.

new matilda, tampa, refugees, asylum seekers
A screencap from ABC Television reporting of the Tampa Affair in 2001.

The powers given to Dutton were strengthened by legislative amendments in 2014. These were able to narrowly scrape through with the support of Senate cross benchers like Nick Xenophon, Motoring Enthusiast Ricky Muir, imaginary libertarian David Leyonhjelm, and two Palmer United Senators.

As Australia has lurched further and further to the right on asylum seeker policy, more and more power has been given to the Immigration Minister. The danger of giving that kind of extreme, unchecked power, is that it is liable to being abused.

The proposed new “Trump” powers are indeed awful. As noted in the Greens dissenting report on the bill, the amendments would mean that “the Minister could potentially… unfairly discriminate against a large number of visa holders lawfully living in Australia, both on temporary and permanent visas”. In effect, the bill would give the Minister wide-ranging power to cancel visas. The Greens report notes that the bill gives “an unprecedentedly broad range of discretionary powers to the Minister, without government having sufficiently explained their intended purpose or defining key terms. The bill places no limits on or definition of what types of ‘prescribed visas’ the Minister can subject to a ‘public interest revalidation check’. As highlighted by the main committee report, the term ‘public interest’ remains undefined by the bill”, and so does “revalidation check”, and “adverse information”. In effect, the Minister could determine at any time various visas require re-validation, and through any process he devises, could decide that unproven “adverse information” – which could mean anything – means that a visa should be cancelled.

The ALP originally supported this legislation, and only changed their position once they saw it could be associated with the toxic agenda of Trump.

So can a Trump ban happen here? We’ve already given the government all the tools it needs to impose a Muslim ban in Australia. Whether they can get away with it is a question the rest of us will need to face.

Michael Brull is a columnist at New Matilda. Duncan Fine is a lawyer at the human rights law firm National Justice Project. Legal Research for this article was conducted at NJP.

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Michael Brull and Duncan Fine

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