OPINION: Donald Trump has signed a second executive order to close America's borders to nations with large Muslim populations. Many Australians think we should follow suit, with a Newspoll finding that 44 per cent (or 52 per cent of Coalition voters) supporting such a move. The idea has also been backed by prominent politicians including government MP George Christensen.
Australia has a long history of discriminatory refugee and immigration policies. The year that we became a nation, the new Federal Parliament enacted the Immigration Restriction Act 1901. It prohibited the immigration into Australia of any person who, when asked by an officer, was unable to "write out at dictation and sign in the presence of the officer a passage of 50 words in length in a European language directed by the officer".
The test appeared to be neutral and fair in that it made no reference to nationality, race or religion. However, this was no more than a fig leaf, as the exam introduced the white Australia policy. Non-European migrants, particularly those from China, were subjected to the dictation test in a language they did not understand. This enabled the federal government to prevent "undesirable" migration to Australia.
This dictation test was even administered to political activists. Left-wing Czech novelist Egon Kisch arrived in 1934 to speak at a left-wing anti-war conference. He was taken to a police station and subjected to a dictation test in Scottish Gaelic, which he failed. He then outwitted the authorities in the High Court. Scottish Gaelic was held not to be a "European language" because it was an "ancient form of speech spoken by a remnant of people inhabiting the remoter portion of the British Isles".
The white Australia policy lasted until the 1960s. Australia has not since adopted such a broad-based means of excluding classes of immigrants from Asia or elsewhere. Indeed, there have since been important periods in which Australia has taken large numbers of refugees from nations including Vietnam and China.
Despite this, arguments continue to surface that we should deny people entry because of their nationality or religion. For example, Immigration Minister Peter Dutton suggested in late 2016 that the Fraser Coalition government erred in bringing Lebanese refugees to Australia in the 1970s. He pointed out that, "out of the last 33 people who have been charged with terrorist-related offences in this country, 22 of those people are from second and third generation Lebanese-Muslim background".
Australia's response to the humanitarian crisis in Syria and Iraq has also revealed a willingness to discriminate. In 2015, in agreeing to take refugees fleeing the conflict, members of the Abbott government made it clear that they would seek to restrict entry to Christian minorities. One unnamed backbencher indicated that Australia's response must be: "No more Muslim men."
Australia's humanitarian program does not require this in such overt terms. Instead, it says that Australia will give priority to "persecuted minorities", among others. As a result, the Syrians and Iraqis recently re-settled in Australia are, according to the department of immigration, "overwhelmingly non-Muslim".
Policies such as this face few, if any, legal constraints. The High Court has found that refugees and non-citizens are not entitled to the same protections under the constitution as Australians. This is reflected in the Migration Act, which has been stripped of many due process and other protections. Power has been concentrated in the minister to act in the "national interest" by making make open-ended decisions about whether a person can enter Australia.
The constitution tends to be permissive of such arrangements. It was drafted with a view to permitting discrimination. Today, Australia has the only constitution in the democratic world that authorises Parliament to make laws imposing negative treatment on a group due to their race. This so-called races power was included, according to Australia's first prime minister Sir Edmund Barton, so Parliament can "regulate the affairs of the people of coloured or inferior races".
There is a clause in the constitution protecting freedom of religion. However, this is a shadow of the guarantee offered by the US Bill of Rights. Australia's clause is drafted narrowly and has not been applied by the High Court to strike down any law since 1901. It is likely that the section applies only if people are denied entry due to their religion.
However, such a direct approach is not needed to stop Muslims from certain countries. As the white Australia policy and Trump's latest executive order show, people can be targeted in other ways, such as by banning entry from those nations on national security grounds. In this form, it appears that the measure does not discriminate. Such a law would likely satisfy the courts in Australia, and perhaps also the US.
Professor George Williams is Dean of Law at UNSW.
This opinion piece was first published in the Sydney Morning Herald.