God Bless Australia, Land of the Free(r)

> 15 February 2017

By now everyone has heard of the travel ban imposed by Donald Trump by which he was attempting to cancel US visas held by citizens of seven countries.

The executive order has been stayed by the courts. There will be more argument to determine whether it was valid. 

It made me question whether Prime Minister Turnbull could wake up one day and do a similar thing.

Under our legislation, the minister, Peter Dutton, has the power to cancel a visa in a range of circumstances. These include if the holder of the visa poses a risk or possible risk to the health and safety of a person, group or the community or if the presence of the person in Australia would be contrary to our foreign policy interests.

But the Prime Minister does not get a look in. He could ask his minister to consider cancelling a visa and one would expect the minister would comply. 

An important point however, is that the Australian cancellation system is an individualised process. The decision is made on a person by person basis. There is no power to issue a blanket ban.

From what I have read about the US court decisions so far, the fact that the Trump order is a blanket ban is part of his problem.

But it is the United States, and how the matter plays out is yet to be seen.  

The US also has a proud history when it comes to executive orders. For example, the Emancipation Proclamation that freed slaves across the US was an executive order issued by Abraham Lincoln in 1863. 

In Australia, by and large, we are more likely to see issues like this being dealt with through the parliamentary process. I caveat this, however, by saying that sometimes there are more cunning ways of introducing change, such as by regulation.  

Occasionally, I engage in debates with US citizens about various things. 

They talk about the free settlers who made their way to the US and the convicts that were sent here. I refer to our rebellion over rum and the Eureka Stockade and point out they had a fairly major disagreement called the Civil War. I usually also declare for the hell of it that, if it weren’t for our gun laws, Texas would have applied to be an Australian State by now. 

I have added to my playbook that, when it comes to the title of the land of the free, Australia may be a little freer, at least in the area of executive orders.  

Sean Kelly is a Director at Kelly Legal and can be contacted on sean.kelly@kellylegal.com.au or at www.kellylegal.com.au

Sean’s articles can be accessed on the Daily Mercury website at http://www.dailymercury.com.au/ or you can find Sean’s column “Mind Your Own Business” in APN newspapers each Wednesday.

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