It seems as if every parrot in every pet shop is squawking over and over ‘Don’t make jihadists stateless’ and ‘Conviction first’. At least, we hear little of the former squawk du jour, ‘Islam is a peaceful religion’. In the real world, Australians are asking how a nest of jihadists traitors were able to operate here, often on welfare. How was Martin Place terrorist Man Monis walking the streets? Why did terrorist Khaled Sharrouf serve less than four years in prison, take his family to Syria and tweet that photo of his young son holding a severed head? He even boasted he’d tricked the judge into believing he was mentally ill.
The conclusion of the rank and file is that jihadists should stay in the Middle East and be stripped of their citizenship. That they may be left stateless is not only their problem, it’s highly desirable.
It’s not well known that until 2002, Australians voluntarily taking a foreign citizenship while overseas lost their Australian citizenship. When British politicians suggested clamping down on Commonwealth immigration some years ago, one Australian working in London thought it prudent to take out British citizenship. Visiting Australia House, his passport was seized and he was told he was no longer an Australian.
He hadn’t been convicted of an offence. It wasn’t a minister who administered the coup de grâce, it was a bureaucrat. Our compatriot didn’t have the sort of access to taxpayer funded legal aid that was showered on Man Monis for an appeal to the High Court − not once but twice. Note that this wasn’t about being stripped of the Australian citizenship conferred on him in a private ceremony, but being slapped over the wrist for cruelly harassing the families of Australian soldiers killed while serving in Afghanistan.
For years now a dual national has also been stripped of his citizenship for serving in the armed forces of a country at war with Australia. Again there was never a need for a conviction. This will be extended to acting inconsistently with his allegiance to Australia by engaging in specified terrorist-related conduct, fighting for or serving with a declared terrorist organisation or being convicted of a specified terrorism offence. The minister will have a broad reserve power to stop a cancellation where he considers this in the national interest. This is an important power, allowing the minister to consider any mitigating circumstances.
Some lawyers, including shadow AG Mark Dreyfus and former security monitor Bret Walker argue that a prior conviction is constitutionally necessary. Not only would this allow jihadists to return, a trial would take years. Most of the damning evidence would have to be hidden from the jury. That’s why President Clinton didn’t arrest Bin Laden when the opportunity arose. He was advised by the FBI that a criminal trial in the US could not succeed because the jury would be kept in the dark. And why President George W Bush established the Guantanamo Bay detention camp. The military commission trials there have had a bad press, but in a state of war this was an extraordinarily generous measure to its enemies.
We’re in such a state of war. Thanks to our security forces and police a series of terrorist outrages have been thwarted − so far. It’s well established that in wartime the Commonwealth may do things not constitutionally permissible in peacetime. Aliens and suspects can be interned without trial, resources commandeered and organisations proscribed without any general right of appeal to the Federal court, something generously allowed under the Abbott amendments.
The amendments are well designed and appear constitutionally compliant. But in any judicial review, why not provide that this be before a jury, rather than a judge sitting alone. The plaintiff should be available for cross examination by video, and the usual evidentiary rules in a trial relaxed so that the jury can consider such matters as came before the Minister.
There is a sensible wish in government circles to go further and strip citizenship from those able to take out the citizenship of another country. Statelessness only became an issue because of the Whitlam government’s rush to ratify just about every UN Convention or treaty, even where there was no demonstrated need. In ratifying the Convention on statelessness, they forgot to do what any prudent government did – deposit a reservation. The British did, so that the Convention today doesn’t stop them from stripping citizenship from a naturalised subject who has conducted himself in a manner seriously prejudicial to the ‘vital interests of Her Britannic Majesty.’ It’s not for the High Court to rule on our international legal obligations, unless they have been included in an act of parliament. This hasn’t stopped some activist judges from trying, as in the generally discredited 1995 Teoh Case, where the High Court invoked the Convention on the Rights of the Child to slow or block the deportation of a Malaysian drug runner.
The British, who created the seperation of powers, provide a model for action, and not only on their reservation to the statelessness convention. The Home Secretary already had a broad power to strip naturalised citizens of their citizenship where it would be ‘conducive to the public good’ and to do so would not render them stateless. This was extended in two ways in 2014. First, naturalised British subjects engaging in conduct ‘seriously prejudicial’ to the UK’s vital interests can be stripped of their citizenship where the Home Secretary has reasonable grounds to believe they could acquire another nationality. Second, those who obtained their citizenship by a false representation or concealment of any material fact can be stripped of their citizenship whether or not they’re a dual national.
Following this sensible British approach, a separate new section could be added to provide for automatically stripping the citizenship from anybody whom the Minister certifies can acquire the citizenship of another country in circumstances similar to those set out in the amendments.In the unlikely event of the Senate rejecting the bill, rather than proposing reasonable amendments, it could in due course be grounds for a double dissolution. If the High Court were so ill-advised as to find the provisions invalid, the government should consider submitting a constitutional amendment to the people for their decision.
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