The world reacted in horror as President Trump’s executive order to limit travel from seven Muslim-majority nations saw families torn apart and citizens refused entry at US airports. US courts have blocked the order for now, yet Australia’s immigration minister, Peter Dutton, seeks those very same draconian powers.



Two bills currently before federal parliament are an attempt to significantly expand Dutton’s Trump-like powers. This expansion would increase his power, decrease government accountability and all but write out the courts’ review powers. They would allow the immigration minister to play God; to make significant decisions that would affect the lives of vulnerable people, and to do so unchecked.

The first is the “visa ban bill”, formally the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 – a proposed law that would prevent any adult taken to Nauru or Manus Island after 19 July 2013 from ever making a valid Australian visa application. It applies to asylum seekers intercepted at sea and taken to Nauru or Manus, including those currently in Australia for medical treatment.

The visa ban bill contravenes Australia’s international human rights obligations. Refugee law experts, human rights advocates and even the Labor party, which reintroduced the use of detention centres on Nauru and Manus, argue the bill is inhumane, discriminatory and pointless.

In a similar vein to Trump’s executive order, this ban will separate families.

The only so-called safeguard is that the minister would have the power to overrule the visa ban in individual cases when he considers it is in “the public interest”. Of course, a safeguard that relies on the whim of the decision-maker, with no independent oversight, is no safeguard at all.

The second bill, currently before the Senate, is the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016. This bill allows the minister to personally issue a revalidation requirement for entire specified cohorts of visa holders, immediately preventing them from being able to enter Australia until their visa is revalidated. The power is not limited to any particular class of visa.

This power may be exercised on the basis of defined criteria, such as health checks, but may also be exercised when the minister considers it is in “the public interest” to do so. The unfettered, exceptionally broad power this gives the minister over any individual residing in Australia, who does not hold Australian citizenship, is alarming.

These bills allow just one person – the immigration minister – to make substantial and permanent decisions about another person’s life: whether a young woman will be sent back to the persecution from which she fled; whether a baby born in Australia to asylum seekers will be allowed to grow up with his or her parents; whether a person will have their visa cancelled without warning or opportunity to apply for its reinstatement.

The minister’s decision is virtually unreviewable unlike Trump’s executive order which, we have seen, the courts can interrogate.

Liberty Victoria’s Young Liberty for Law Reform has comprehensively reviewed the past 60 years of Australia’s immigration laws and found a troubling increase in decision-making powers that include “public interest” as a condition for the exercise of a non-reviewable, non-compellable ministerial discretion.

Public interest has been described by the courts as entirely discretionary and politically motivated. So, Dutton can decide whether to exercise his decision-making power and he defines what the public interest is. No checks. No balances. No accountability.

The government argues that ministerial discretion is necessary in migration matters, and that it is often used in compassionate cases. That does not mean that this power always achieves compassionate outcomes.

While increasing the minister’s powers, these two bills also sideline the checks and balances that keep our government accountable.

Powers of this kind have long been criticised. As far back as 1989 the then-immigration minister, Robert Ray, attempted to remove all ministerial discretion from the Migration Act, stating: “Decision-making guidelines are perceived to be obscure, arbitrarily changed and applied, and subject to day-to-day political intervention in individual cases.”

In 2004, a Senate inquiry into ministerial discretion in migration recommended that these powers should be “a last resort to deal with cases that a truly exceptional or unforeseeable.”

The committee found the minister’s ability to “micro-manage” the immigration system concerning, given it “creates the possibility and perception of corruption.” And in 2008 then-immigration minister Chris Evans stated he was uncomfortable with the unprecedented power given to the immigration minister because these powers lack transparency, accountability, appeal rights and allowed him to “play God.”

Discretionary ministerial powers were originally established to prevent injustice. They were a tool to fix anomalies, a safety net reserved for extraordinary cases, and a power to override the missteps of a blind bureaucracy.

These bills increase Dutton’s ability to make life or death decisions. They allow him to decide which families get to be together and which don’t. They do all of this while simultaneously eroding the safeguards that were designed to protect fair decision-making.

The minister must not be allowed to play God.

Elizabeth Colliver, Shawn Rajanayagam and Lauren Bull are members of Young Liberty for Law Reform, a project of Liberty Victoria.