The new minister for Home Affairs will have wide discretionary powers over peoples’ lives … Unfortunately, the job is being handed to a seriously unsuitable person … Peta Leigh examines Peter Dutton’s sweeping functions under the proposed ministerial arrangements 

Dutton’s extraordinary discretionary powers as Minister for Immigration and Border Protection already position him as the most powerful Australian politician in terms of non-reviewable, non-compellable, personal decision-making authority. 

This was confirmed recently in a report published by Liberty Victoria, which found that of the 20 pieces of legislation he administrates in his current ministry, Dutton has 47 discretionary powers, outnumbering the public interest or national interest powers of the attorney general, who at the moment administers 152 Acts.   

The fact that Dutton will soon acquire powers as the minister responsible for national security makes his autocratic tendencies and ignorance of, or lack of respect for, the rule of law, even more troubling. 

Concern about the high concentration of discretionary power within the ministry compelled the formation of the 2004 Senate Select Committee on Ministerial Discretion in Migration Matters. 

The committee concluded “vesting a non-delegable, non-reviewable and non-compellable discretion with the immigration minister without an adequate accountability mechanism creates both the possibility and perception of corruption”. Since then, the range of discretionary powers of the Immigration and Border Protection minister have increased significantly. 

Dutton’s current responsibilities extend to boat turnbacks (Operation Sovereign Borders), offshore and onshore detention facilities, detention service providers, visas, citizenship, customs, security at airports and ports, entry and exist from Australia, the Border Force Act, the Migration Act, certain parts of the Maritime Powers Act, tariff classifications, imports, exports, refugees, asylum seekers and the humanitarian refugee program.  

Under reforms to national security to be introduced later this year, Dutton’s discretionary powers will expand, and also grow further in proportion to those held by his colleagues. 

The details of the new administrative arrangements are unclear at this stage, but we do know that under the new Home Affairs structure Peter Dutton will acquire ministerial responsibility for the Australian Security Intelligence Organisation Act and the Australian Federal Police Act. 

Also from the attorney general’s department he’ll acquire the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre, Emergency Management Australia including the Crisis Coordination Centre, the Australian Institute of Criminology and the Critical Infrastructure Centre. 

The Office of Transport Security will also be transferred to Home Affairs from the Department of Infrastructure and Regional Development. 

The acquisition of the ASIO Act represents a significant increase to Dutton’s already extraordinary range of discretions.  

The ASIO Act regulates the collection of intelligence, giving ASIO powers to act in ways, particularly in respect of intelligence collection and surveillance, which would otherwise be a breach of the law. 

Under the ASIO Act, Peter Dutton will have powers with respect to: 

The ASIO Act also bestows upon Peter Dutton a number of powers in relation to “terrorism offences”. As Minister responsible, his consent alone is required for the issue of: 

These “Special Powers Relating to Terrorism Offences” that comprise part 3 of the Act were inserted in 2003 in an apparent response to the 9/11 terrorist attacks in the US. 

Having ministerial control of the AFP Act gives Dutton broad sway over the policies of the AFP, by way of legislative provisions that allow him to give directions to the commissioner, “with respect to the general policy to be pursued in relation to the performance of functions of the Australian Federal Police”. 

The commissioner must comply with these directions. The most recent direction, given by Michael Keenan as Minister for Justice in 2014, urges the AFP to deliver on a number of strategic priorities, the first being “countering the threat of terrorism and violent extremism to the safety and security of Australians and Australian interests, inside and outside Australia”. 

The primary functions of the AFP, set out in section 8 of the AFP Act, are to be undertaken in accordance with the current ministerial direction.  

In 2016 the AFP used outmoded legislation to investigate alleged leaks from a senior NBN employee. This suggests that the legislation allows the minister at its helm to exert political influence over the operations of the agency. 

With Dutton in charge this could be a dangerous arrangement.

It maintains unclear whether the attorney general will maintain responsibility for the AFP’s actions in relation to controversial terrorism provisions contained in Division 102 of the Criminal Code 1995. A series of amendments to the Code since 2002 have deepened and broadened the attorney general’s powers in relation to “terrorist acts”. 

The attorney general may prescribe a “terrorist organisation” under s.102. Association with such an organisation can lead criminal offence charges. 

It is similarly unclear whether the controversial powers under Division 3A of the Crimes Act 1914 will remain with the attorney general or whether the discretions will be with the new ministry.  

The responsible minister may declare a place to be a prescribed security zone if it is considered that assists in preventing a terrorist attack or dealing with its aftermath. 

The declaration does not take the form of a legislative instrument, and so cannot be scrutinised by parliament. 

While the minister has an obligation to publish the details of the zone, there is no time limit stipulated. No sanctions apply for a failure or delay in publishing. Individuals within a prescribed security zone are subject to “stop and search” provisions which allows police to demand personal information from any individual in the zone. 

Each new introduction of discretionary, non-reviewable power has been met with objections from the legal community. Although the final administrative arrangements are yet to be revealed, the concentration of these powers in the hands of a person like Dutton, who doesn’t believe in the rule of law, poses a major threat to the independence of lawyers and the judiciary.