The Abbott Government is expected to introduce a bill to Parliament today to allow the removal of Australian citizenship from dual citizens who fight with groups such as Islamic State. The Prime Minister says action is needed because there are “currently 120 Australians fighting with Daesh, also known as the Islamic State, with another 160 Australians supporting them through financing and recruiting”.
The issue caused embarrassment for the Government earlier this month when its preliminary discussions were leaked. Cabinet discussions are held in strict confidentiality, allowing ministers to “discuss proposals and a variety of options and views with complete freedom”. However, discussions of the citizenship proposal were revealed by the media, and six ministers reportedly expressed strong opposition to the original version of the plan. These included several whose portfolios are closely related to the issue, including the Attorney-General, the Defence Minister and the Foreign Affairs Minister.
A key sticking point was the proposal to give power to the Minister, rather than the Courts, to decide when to remove citizenship: “The deputy leader of the National Party went to the heart of the matter: ‘If you don’t have enough evidence to charge them in a court, how can you have enough evidence to take away their citizenship?’ According to participants, Dutton replied: ‘That’s the point, Barnaby. You don’t need too much evidence. It’s an administrative decision.'” Conservative constitutional expert Greg Craven described the plan as “plain dumb”: “even if this proposal ever did hit the statute books, it would last as long as a Melbourne warm spell. It would be irredeemably unconstitutional. By conferring a profoundly judicial power on a minister, it mocks the separation of powers. It would be swatted down like a bug by the High Court.”
In its defence, Abbott said the plan was “precisely what was recommended by the former independent national security monitor Bret Walker” in a 2014 report. That report does recommend “the introduction of a power for the Minister for Immigration to revoke the citizenship of Australians, where to do so would not render them stateless”. However, Walker says this power should only arise “after a criminal trial”. He told the ABC, “I’d like to see something in the nature of a criminal trial. That is not conducted by a minister leafing through a manila folder with intelligence that will never be presented in a court of law to be tested.”
The Government maintains that any decision made by the Minister would be subject to judicial review. This is not the same as an appeal, and would allow people to challenge decisions on very narrow grounds relating to the process — and not including the merits of the decision. As the Immigration Minister insists, “the government’s not going to have the court second-guessing ministerial decisions”. Tony Abbott expressed a similar view this week: “They say they’ll put you on trial. Well, fair enough. But we all know the perils of that.” Supreme Court Justice Lex Lasry tweeted a riposte: “The perilous feature of putting people on trial is fairness.”
While the text of a bill has not been released, the latest version of the proposal to be floated in the media would amend the Australian Citizenship Act 2007 to make the cancellation of citizenship automatic when a person commits an act of terrorism or fights with a group such as Islamic State. This would remove ministerial discretion from the process, but would still allow an opportunity for the underlying fact to be tested in court. Section 35 of the Act already uses this system where a person serves with an enemy nation’s army — however, it has never been used, and therefore nobody has had standing to challenge its constitutionality. While Communications Minister Malcolm Turnbull insists “[t]he principles are well understood”, Charles Darwin University law lecturer Ken Parish believes it is “likely invalid”.