'Totally unwarranted and draconian': Lawyers condemn Peter Dutton 'power grab' on citizenship

'Totally unwarranted and draconian': Lawyers condemn Peter Dutton 'power grab' on citizenship

Lawyers, including the country’s peak law body, have condemned Immigration Minister Peter Dutton’s latest citizenship crackdown as a power grab that threatens the independence of the judiciary.

Under changes to be put to Parliament this week, the minister will be empowered to overrule citizenship decisions of the Administrative Appeals Tribunal, in a bid to put a stop to its “silly” rulings.

Mr Dutton said the reform would bring citizenship matters into line with visa cancellations, over which he has effectively the final say – although in all cases applicants can still appeal to the Federal Court.

The move follows weeks of criticism of the AAT by senior government ministers, led by Mr Dutton, who have pointed to questionable decisions allowing “fake” Iranian refugees to stay in Australia despite holidaying in Iran.

Law Council of Australia president Fiona McLeod said she would await the full details, but reports of the tribunal being hamstrung were worrying.

“That’s a very grave concern,” she said. “Any attempt to wind back review powers should be treated with concern.”

Refugee lawyer David Manne said the ploy was “a totally unwarranted and draconian move” and an attempt to “eviscerate” due process from important legal decisions.

“Politicians should not have such awesome personal powers without proper scrutiny,” he said.

Australian National University law professor Kim Rubenstein, who consulted on the 2007 citizenship revamp, warned against granting individual government ministers more and more power.

“That becomes a slippery slope to very draconian environments,” she said. “We as Australians take these things too much for granted.”

Western Sydney University law lecturer Jason Donnelly said it “completely undermines the object and independence of the AAT” and “shows a growing imbalance” in the separation of powers.

“It opens the can of worms to the abrogation of other fundamental rights,” he said. “The courts have a fundamental role in protecting rights – because the government certainly isn’t doing it.”

But Mr Dutton argued the new powers were a “modernisation” of the system to better reflect public expectations. His department was “best placed” to make decisions on citizenship, he said, because it had access to all the relevant facts. And claimants would still have avenues for appeal to the Federal Court and, if applicable, the High Court.

“Judicial processes are very important,” he said. “It still allows people to have their day in court. But it doesn’t give rise to the silly situations which we’re seeing at the moment [from the AAT].”

Former prime minister Tony Abbott also attacked the AAT on Monday, saying it lacked common sense and he accused tribunal members of making “bizarre decisions”.

The changes form part of a broader citizenship reform package to be put to Parliament this week, including the introduction of tougher English language testing and a four-year wait as permanent residents for aspiring Australian citizens.

Labor is undecided on the proposal and it will likely be the subject of a robust caucus debate once legislation is produced. Citizenship spokesman Tony Burke said the party would “deal responsibly with any sensible proposal”.

Greens immigration spokesman Nick McKim said the AAT crackdown was another example of Mr Dutton “grabbing more power for himself, as he tries to make himself judge, jury and jailer”.

​Duncan Kerr, a Federal Court judge who until last month was the president of the AAT, said it would be inappropriate for him to comment.