
In his unofficial election policy launch this week, Peter Dutton re-announced his promise to cut the migration program and to cap overseas students at metropolitan universities. Without a hint of embarrassment, he also said he was a strong believer in the ‘rule of law’. His record shows he has little belief in the rules embodied in the Migration Act nor would he have the legal powers to implement these promises if elected.
Cutting the permanent migration program
When Dutton was Home Affairs minister, he engineered a cut to the 2016-17 migration program by arguing the planning level agreed by Cabinet was a ceiling not a target. It had never before been a ceiling. He then engineered an even bigger cut to the 2017-18 program.
Both actions were contrary to explicit decisions of the Cabinet he served in to hold the program at 190,000. It was indeed immigration policy by stealth because he had lost the internal policy debate on the cut to both Turnbull and Morrison (although Abbott, who was no longer in Cabinet, supported him).
Dutton sold the cut to the 2017-18 program to The Australian as being the result of ‘tougher vetting’. It was nothing of the sort because the size of the application pipeline was more than enough to deliver the program with migrants who met the legal criteria. That would have been the case even if there was a substantial increase in the refusal rate (which there wasn’t).
But Dutton knew no Murdoch journalist, certainly not Simon Benson, would question his claims. Benson happily published Dutton’s story lock, stock and barrel.
Dutton engineered the cut in equal measure to the family stream and the skill stream – a remarkable coincidence if ‘tougher vetting’ was actually the cause. The cut to the skill stream was legal even if it meant a negative impact on the Budget through a non-Budget and non-approved measure.
Partner visas
The cut to the family stream, and in particular the decision to limit the number of partner visas, was patently illegal because the Migration Act requires partner visas to be managed on a demand driven basis. It is not clear if the Department of Home Affairs advised Dutton his actions were illegal but implemented them anyway.
I faced a similar dilemma in 1996 when the Howard Government wanted to limit partner visas – I advised I could not without an amendment to the Migration Act which was eventually defeated in the Senate.
Dutton’s actions to illegally limit partner visas led to a massive increase in the partner visa application backlog from well below 27,900 in 2009-10 to over 96,000 by the time Dutton left Home Affairs in 2019-20. By then, there were indications the Auditor-General would begin an audit into the legality of the Coalition’s management of partner visas.
Realising the legal pickle they were in, Dutton’s successors in Karen Andrew and Alex Hawke quickly set about clearing the partner backlog by allocating a much larger number of places for partners in the program.

They suddenly increased partner visa grants from 37,118 in 2019-20 to 72,376 in 2020-21. The Department started using a footnote to its published data on partner visas that these were being managed on a ‘demand driven’ basis.
That may have been true in 2020-21 but it certainly was not true in the years prior to that when the backlog ballooned to over 96,000. Dutton’s successors brought that backlog down to 56,178 at the end of 2021-22.
But since then, the partner backlog has again increased to over 75,000 and is rising rapidly. Allowing that to continue while using a planning level of around 40,000 with an annual application rate of around 65,000 and rising, would be clearly illegal no matter what sophistry the Department or the Minister may use about how planning levels are not caps or about limited resources to processing partner visas. The Migration Act is unequivocal about the requirement that partner visas be managed on a demand driven basis.
For Dutton to now cut the migration program to 140,000, with a two-thirds to one third balance in favour of the skill stream, would require him to again be in breach of the Migration Act. He may reluctantly decide to allocate more places in the family stream to avoid being in breach of the Migration Act but that would mean an even bigger cut to the skill stream at a time:
- demand for employer sponsored migration is high and no government has ever capped employer sponsored migration;
- Dutton is saying he will substantially increase the migration of construction tradies; and
- the Nationals are refusing to allow Dutton to cut any visas that target regional Australia.
Now that he has walked back his announcement that he would reduce net migration to 160,000, Dutton is relying on his promised cut to permanent migration to deliver his promise that cuts to migration will free up 100,000 houses. That is nonsense because the bulk of the migration program is delivered from temporary entrants who are already in Australia. The cut to permanent migration will do very little to reduce net migration which is what Dutton keeps complaining about.
Overseas students
Dutton says he wants to cap overseas students at metropolitan universities at a lower level than proposed by the Labor Government. But to do that he would need the powers in the student capping legislation that he opposed. That means to implement his promise, he would need to re-introduce that or similar legislation once he is in government.
It’s a bit like Trump’s opposition to the bipartisan border bill in the US. Trump needs those powers to curtail inflow of unauthorised entrants but he didn’t want the Biden Administration to have those powers.
With offshore student visa grants for the higher education sector in November 2024 hitting an all-time record, the Labor Government faces the prospect this will continue ahead of the Election with Labor having no effective policy tool to cut back the inflow.
Like Trump, Dutton will blame Labor for out of control student visa grants while having prevented Labor from limiting those.