New Laws to Strengthen Ministerial Powers Over Immigration

Thursday 15 June 2017 @ 11.01 a.m. | Judiciary, Legal Profession & Procedure | Legal Research | Immigration

It has been reported that the Immigration Minister, Peter Dutton, wants the Federal Government to be given the power to overrule the Administrative Appeal Tribunal (the AAT) with respect to decisions on citizenship matters. Under the proposed changes, Minister Dutton would be given stronger powers allowing him to override the now independent AAT's decisions on citizenship applications.

Minister Dutton argues the changes are necessary because the AAT currently has the ability to make decisions against Australia's national interest by ignoring the Immigration Department's advice and overturning government deportation orders.

Minister Dutton already has a veto power on AAT decisions dealing with select visa matters and is now seeking to have that power extended under new proposed legislation which is planned to be introduced into Federal Parliament by the Coalition in the near future.


Minister Dutton's backing of the changes is attributed by most reports to a recent AAT set of decisions, criticised by the Minister. These decisions include the AAT's ruling to overturn an Immigration Department decision to cancel the visas of six Iranians. This is a group who, in general terms, had sought and gained Australian Citizenship on the basis of claims that they were at "risk of execution in Iran" and who then made return holiday visits to Iran - for example, one man, who had told the Federal Government he was at risk of execution in Iran, made three return trips to the country, while another traveled back to get married. Minister Dutton wanted these men deported, along with four others only to have this blocked by the AAT, who is legislatively tasked to review decisions made by Federal Government ministers, departments and agencies.

Minister's Views on the AAT

Minister Dutton is on record as indicating that in his view the AAT is influenced by the tribunal president's bias, having been reported by the ABC as saying that ". . . it was important to note the tribunal's president Justice Duncan Kerr, whose term expired on Monday, was a former federal Labor MP" - and further telling, Sydney radio station 2GB:

"When you look at some of the judgments that are made, the sentences that are handed down it's always interesting to go back to have a look at the appointment of the particular Labor Government of the day, . . ." 

Minister's Explanation of the Changes

Minister Dutton defends the changes as not being a grab for larger more authoritarian powers, saying of the changes that:

"This is really just trying to align the arrangement in terms of citizenship with the laws that exist in relation to granting and cancelling visas now."

Further, the Minister points out that, while the ATT might be able to be vetoed by his Department under the proposed changes, there would still be avenues of appeal, and the ability to question his department's decisions, saying: 

"It's not overruling any court, there's still the ability to go to the Federal Court,.."

This however, does overlook the fact that, the level of difficulty and cost of making an appeal is considerably higher.

Reactions and Comments

SBS News reports that former Prime Minister Tony Abbott in an interview on 2GB radio, has agreed with Minister Dutton that the proposed AAT changes present a test for the opposition, saying:

"Do they want properly accountable decisions or do they want the accountable elected politicians constantly being second-guessed by the unelected and unaccountable members of the Administrative Appeals Tribunal, . . ." 

The Federal Opposition is reported as saying, through the shadow assistant treasurer Andrew Leigh, that it would look at the detail of Minister Dutton's proposed changes and then make a decision. Mr Leigh also expressed concern at  the motivation for making the changes and is reported as saying:

"But I think Peter Dutton is largely interested in his own power plays and less interested in details of legislation, . . . If he wasn't, he'd be public about the consultations and he would have given Labor a copy of the legislation weeks ago."

The Greens through senator Nick McKim, are reported as describing Minister Dutton's proposal as a "draconian measure" saying also:

"Time and again we have seen Peter Dutton grabbing more power for himself, as he tries to make himself judge, jury and jailor, . . ."

Looking Ahead - Will the Changes Become Law?

The proposed legislation is bound to be controversial and to pass through both houses will require the the support of  the opposition and/or the Greens, or 10 votes from the 12 cross-bench Senators.  A possibly difficult ask made harder by associated legislation for tightened citizenship requirements also being dealt with. The coming weeks of Federal Parliament will be interesting for those involved in migration law matters. 

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