The claim
Immigration is shaping up to be a key issue ahead of the next federal election, as the Labor government grapples with a High Court decision that led to the release of some 150 detainees from indefinite immigration detention, including many with serious criminal histories.
To head off the brewing political crisis, the government is seeking to pass laws that would allow the immigration minister to deny visas to people whose countries refuse to accept the repatriation of deported citizens.
The move has sparked fears of travel bans similar to those seen in the US under former president Donald Trump, with Greens spokesman for Immigration, Citizenship and Multicultural Affairs David Shoebridge condemning the "god-like powers" being considered and labelling the proposed legislation a "Trump-style travel ban bill".
"It allows the government to ban people from certain countries from ever travelling to Australia," Senator Shoebridge said in a video posted to social media platform X on April 15.
"The government has not said what countries this will apply to. But it could be literally any country."
So, is the federal government proposing laws that would allow Trump-style travel bans? RMIT ABC Fact Check investigates.
The verdict
Senator Shoebridge's claim is a fair call.
Labor's proposed legislation would allow the immigration minister to designate entire countries as a "removal concern", subjecting their citizens to a ban on applying for visas to enter Australia.
The government has said this designation is intended to be used as a negotiation tool with governments that do not accept deported citizens.
A similar power has existed in US legislation since 1952 but was rarely used during the post-Cold War period until the election of Donald Trump, who wielded it via executive order to place visa bans on a number of Asian and African countries between 2017 and 2020.
While these bans mostly targeted government officials and their families, experts said the Australian proposal could apply to most visa applicants, with minor exceptions such as for refugees and asylum seekers.
Separate to the above restrictions were the more widely publicised bans that primarily targeted Muslim-majority nations, purportedly on the grounds of national security. These bans barred the entry of most people from these countries.
Experts said Labor's proposal would give the immigration minister powers to institute similarly broad bans, with the discretion to target countries based on what he or she deems to be in the "national interest".
It's not certain how the courts would rule on specific bans, and therefore whether this criterion would allow the minister to blacklist "any" country.
Nonetheless, experts said the minister's power to designate removal concern countries would be exceptionally broad and the opportunities for judicial challenge very limited.
Source of the claim
Senator Shoebridge's claim relates to the government's Migration Amendment (Removal and Other Measures) Bill 2024.
A spokesman for the senator told Fact Check that under the changes proposed by the bill, "the Government will be able to prevent people from select countries applying for visas in Australia, effectively creating a travel ban".
In an email, he said the phrase "Trump-style travel bans" was a reference to the former president's series of executive orders that prevented people from select countries from applying for visas to the US, effectively creating a ban on travel.
"While there are some minor differences, the purpose of the bill is the same."
The spokesman added that "numerous independent legal experts have made this comparison" in submissions and testimony to a Senate inquiry into the bill.
According to Amnesty International's submission, for example, the bill "raises the spectre of … Trump's 'Muslim Ban' policy, targeting a select group of countries in clear violation of Australia's international human rights obligations".
What is the government proposing?
Labor drafted its bill amid the fallout from a November 2023 ruling by the High Court, which held that non-citizens without a valid visa could not be detained indefinitely if they could not be deported to another country.
Speaking in parliament on March 26, Minister for Immigration, Citizenship and Multicultural Affairs Andrew Giles said new ministerial powers were necessary "because, regrettably, some countries will not allow their nationals to return to their home country".
Among the changes proposed by Labor's bill is the insertion of sections 199F and 199G into the Migration Act 1958.
According to the bill's explanatory memorandum, the provisions would empower the immigration minister to designate a country "as a removal concern country … if the minister thinks it is in the national interest to do so".
Once a country is designated a "removal concern", its citizens would no longer be able to validly apply for a new visa while outside Australia.
The bill provides for a series of exemptions, such as for dual nationals (where one of the nations is not a removal concern country); partners or children of Australian citizens or residents; parents of children (aged under 18) residing in Australia; and refugee and humanitarian applicants.
Before designating a removal concern country, the minister must consult with the prime minister and the foreign affairs minister to ensure the decision "is appropriately informed by Australia's national interest and the national and international implications of the exercise of the power", the explanatory memorandum states.
However, the decision is "a discretionary personal power" of the minister.
Speaking to journalists on May 10, Mr Giles justified Labor's proposal on the basis that it "is really a diplomatic tool to encourage cooperation on the part of those countries with the Australian government".
Defining 'Trump-style'
Trump may not have delivered on his more ambitious immigration promises, such as the building of a wall along the entire border with Mexico, but according to the Migration Policy Institute, his use of "sweeping presidential proclamations and executive orders, departmental policy guidance, and hundreds of small, technical adjustments" left a deep impact on US immigration policy.
His administration was "arguably the first to take full advantage of the executive branch's vast authority on immigration", the institute wrote in a 2022 report.
Perhaps the highest profile of Trump's immigration-related actions was the so-called "Muslim ban", a set of travel restrictions that followed his campaign promise of a "total and complete shutdown of Muslims entering the United States".
Separately, Trump also issued multiple directions to limit the issuing of certain visas to countries that had failed to cooperate with efforts to deport their citizens.
Jane McAdam, director of the Kaldor Centre for International Refugee Law at UNSW, told Fact Check that although the two types of ban arose at the same time, "they were different policies and applied to completely different countries".
For the purposes of this analysis, Fact Check takes "Trump-style" as referring to the scope of the former president's various travel bans and to his use of broad executive powers when imposing them.
The 'Muslim ban'
Within days of taking office in January 2017, Trump issued a flurry of executive orders related to immigration.
An initial order titled "Protecting the Nation from Foreign Terrorist Entry into the United States" temporarily suspended the US refugee admissions program, specifically barred the entry of Syrian refugees and restricted travel from seven Muslim-majority nations (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen).
All valid visas of nationals of the seven nations, with limited exceptions, were revoked (although the order was reversed by a US court the next month).
At the time, Trump invoked the president's broad authority "to suspend the entry of all aliens or any class of aliens" whenever the president deems that their entry "would be detrimental to the interests of the United States".
Several versions of the ban were challenged in the courts, with the administration arguing its decisions were driven by concerns over "national security and public safety threats" rather than by religious criteria.
In June 2018, the US Supreme Court upheld the government's third attempt, which related to a September 2017 proclamation restricting the entry of nationals of Chad, Iran, Libya, Somalia, Syria, Yemen, North Korea and Venezuela.
Loading...While the affected countries varied during Trump's term — with a later proclamation also barring entry from Kyrgyzstan, Tanzania and Nigeria, for example — the bans remained in effect until they were rescinded by President Joe Biden.
Trump's 'recalcitrant' nations
Also in January 2017, Trump signed a separate order titled "Enhancing Public Safety in the Interior of the United States".
This order sought to ensure the removal of "tens of thousands of removable aliens" who had been released into the community "solely because their home countries refuse to accept their repatriation".
Citing "the national interest", Trump directed the government to implement sanctions against so-called "recalcitrant countries".
Section 243(d) of the Immigration and Nationality Act 1952 allows the US government to "discontinue granting immigrant or nonimmigrant visas" to foreign nationals whose governments have denied or unreasonably delayed the return of nationals ordered removed from the country.
This means the government may "implement visa restrictions on certain categories of visa applicants … [until] removal cooperation has improved to an acceptable level", according to the Immigration and Customs Enforcement website.
As a result of Trump's order, visa sanctions were imposed on Cambodia, Eritrea, Guinea and Sierra Leone in September 2017; Burma and Laos in July 2018; Ghana and Pakistan in January 2019; and Burundi in June 2020.
In most cases, restrictions applied only to government officials and their immediate families, or in the case of Ghana, the employees of US-based diplomats.
Professor McAdam said the US government has had the power to impose visa sanctions on "uncooperative" or "recalcitrant countries" since 1952.
According to the US Congressional Research Service, the power was generally used against Soviet-bloc nationals during the Cold War.
Between 1991 and Trump's election, however, the designation was used only twice, against The Gambia in late 2016 and Guyana in 2001.
The Guyana case followed a Supreme Court decision that, much like the recent Australian High Court ruling, limited the government's authority to indefinitely detain non-citizens who had been ordered removed.
At the time, the US imposed visa sanctions to force the removal of 113 criminally convicted Guyanese nationals in US custody, following unsuccessful diplomatic attempts. Within two months, Guyana responded by issuing travel documents to 112 of the nationals, and sanctions were lifted.
So, could Labor's bill allow similar bans?
The concept of "removal concern" countries in the government's bill resembles that of so-called "recalcitrant" or "uncooperative" countries used in US law, experts told Fact Check.
Mr Giles has, in fact, said Labor's proposal would "do what the United States has had in place since 1952".
But the scope of the Australian law would allow for much wider bans than the visa restrictions seen in the US, the experts said.
According to Daniel Ghezelbash, an associate professor and the deputy director of the Kaldor Centre, Australian restrictions could be "used for the same purposes (compelling countries to accept forced returns), but the scope is much broader".
"Trump's bans focused on tourist visas only, and with all but one exception, tourist visas for government officials and family members. Australia's bans [could] target all citizens, for all visa categories (with minor exceptions …)," he said in an email.
The Kaldor Centre's inquiry submission underlined its concern over the minister's power to "blacklist" entire countries, noting that "while the US can refuse to issue visas to nationals of designated 'recalcitrant' countries, it first considers whether a country is being deliberately uncooperative or is just unable to cooperate due to mitigating factors, such as disasters or limited capacity …"
"By contrast, the Australian bill contains no indication that such considerations will be taken into account," the submission said.
Mary Crock, a professor of public law and member of the Sydney Centre for International Law at the University of Sydney, said the bill was open to such criticism that it would enable government action similar to the Trump executive orders.
"The concern is with provisions that would empower the minister to block the grant of visas to nationals of certain countries — namely those refusing to repatriate their own citizens," she said.
"I think that the parallels with Trump's travel bans are fair enough. The bill is a massive overreach and very silly."
As for the so-called Muslim bans, Dr Ghezelbash said "their scope was more comparable to the proposed laws in Australia, as they were blanket bans covering all visa categories (with minor exceptions)".
A potentially wide net
Anthea Vogl, an associate professor at the UTS Faculty of Law, said Labor's bill contained no reference to specific countries or nationalities, meaning the immigration minister "can declare any country as subject to the ban".
"Also, despite the stated purpose of the reform, a declaration can be made on the very wide basis of whether the minister thinks it is in 'the national interest' — so the ban may operate for other or broader reasons in practice."
The Law Council of Australia has similarly criticised the "exceptionally broad" scope of the minister's removal concern powers.
"There are no objective criteria and [there is] no specified purpose to guide such a designation," the council wrote in its submission to the Senate.
"Decisions made will be effectively incapable of being challenged by way of judicial review, due to the 'national interest' criterion".
Peter Billings, a law professor at the University of Queensland, told Fact Check that Labor's bill could not allow the minister to target countries for absolutely "any" reason because, legally speaking, ministerial decisions must be based on "a reasonable or rational foundation" and be consistent "with the purposes for which … [the] powers were enacted".
However, he added, although the courts might strike down an unreasonable ban, the judiciary offers only "a very limited form of oversight and accountability, and in this context that is especially true given the broad nature of 'the national interest'".
Professor Billings pointed to the High Court, which has recently described the national interest as "largely a political question".
The court also said the national interest was, in the context of the Migration Act, an "undoubtedly broad [concept] and the possible considerations it may encompass cannot be catalogued".
The Australian Section of the International Commission of Jurists, the Australian Human Rights Commission and the Peter McMullin Centre on Statelessness at the University of Melbourne's Law School are among those opposed to the bill and its removal concern provisions.
Professor McAdam told Fact Check that while she could not say for certain without further legal analysis whether the government could invoke existing powers to ban immigration in the manner being proposed, "there is currently no law like this on the books in Australia".
Principal researcher: Maria Petrakis
Sources
US Government, White House, About the White House, The Executive Branch, 2024,US Department of Homeland Security, Migrant Protection Protocols (Trump Administration Archive)
US Department of Homeland Security, DHS Announces Implementation of Visa Sanctions, July 10, 2018
US Department of Justice, Bureau of Justice Assistance, Executive Orders, 2024
Reuters, U.S. will not issue some visas in four nations in deportation crackdown, September 14, 2017
Parliament of Australia, Migration Amendment (Removal and Other Measures) Bill 2024, Submissions
Gallup News, Immigration Named Top U.S. Problem for Third Straight Month, April 30, 2024