Innocent Australians risk getting caught up in laws to strip citizenship – expert

Constitutional lawyer George Williams says the bill aimed at dual national foreign fighters removes natural justice and lacks any form of notification

Constitutional lawyer George Williams has described the Abbott government’s bill to strip citizenship from dual nationals as “one of the most poorly drafted” he has seen and warned it would catch many Australians who have “nothing to do with terrorism”.

The bill, which aims to strip citizenship from dual nationals for taking up arms against Australia, removes “natural justice” rights and allows for no public notification for stripping citizenship from dual nationals, he said.

“The first thing the person may know is when they get a knock on the door and in fact that’s probable if only because the authorities don’t have to alert a person beforehand,” Williams said.

“They may want the person to find out they’ve lost citizenship at the moment they are taken into immigration detention.”

Williams told the parliamentary joint committee on intelligence and security (PJCIS), which is examining the bill, that due to its poor drafting the Australian Citizenship Amendment was in “no fit state to be passed”.

A professor of law at the University of NSW, Williams suggested the government “go back to the drawing board” and redraft the bill to withstand a high court challenge.

The bill, to which Labor has given its support in principle, lists three ways dual nationals can automatically lose their Australian citizenship. First, a person renounces their citizenship “by conduct” if they engage in terrorist activity. Second, if they go overseas to fight for foreign armies deemed enemies of Australia, or listed terrorist organisations. Third, if they are convicted of terrorism offences or “certain other offences” by an Australian court.

The government has also released a discussion paper to strip sole nationals of citizenship but no bill has yet been drafted.

“We have a bill providing for automatic citizenship revocation for circumstances that have nothing to do with terrorism,” said Williams.

He estimated that between four and six million Australians potentially have access to dual nationality, though many may not be aware of their dual nationality.

“Having read everyone one of the 65 now 66 pieces of legislation passed by this parliament dealing with terrorism, this is unfortunately one of the most poorly drafted that I have come up against,” said Williams.

“It shows evidence of being drafted in haste ... there are many unusual discrepancies between the explanatory memorandum and the bill, there are significant gaps in the bill, that are surprising oversights.

“For example the bill doesn’t deal with the simple issue of what happens if a person is convicted and on appeal their conviction is overturned. There is also missing information in the bill ... it points to the fact that this bill is not in a fit state to be passed.”

Williams said such drafting problems should have been “ironed out” prior to the bill being introduced to parliament by immigration minister Peter Dutton. He said the issues represented larger structural problems that suggest the bill, more likely than not, would be struck down by the high court.

Williams said while he was mindful of the need to deal with non-state actors involved in terrorism, the bill could revoke citizenship for dual nationals such as:

  • a business person travelling to declared area to conduct “innocent business”,
  • people who incite violence against other groups on the basis of race, such as those involved in the Cronulla riots,
  • people who train others, even if they are unaware how the skills are used, such as computer teachers,
  • the Red Cross providing humanitarian assistance in war zones, and
  • those involved in minor property crimes such as graffiti artists or protestors “sitting in” on commonwealth property.

Williams said he had already been approached by lawyers asking advice on how dual national bill, introduced prior to the winter recess, could be challenged in the high court.

He said he was confident there was a strong case against bill on three grounds. That is, the “inescapable aspect” of the separation of powers, the removal of voting rights from dual nationals and the fact that the bill renders Australian dual citizens as “aliens” when, in his opinion, the court would not see Australian-born citizens as “aliens”.

Originally, the government had drafted the bill to give the immigration minister discretion to remove citizenship from dual nationals but it was redrafted due to constitutional issues.

“This cures the ministerial discretion problem but in doing so it has created a whole new set of problems that give rise to a separate set of constitutional issues that require the structure of the bill to be altered,” said Williams.

“As I say, in my view, it is almost set up to fail.”

He said the bill effectively leaves decisions in the hands of government departments rather than ministers or courts, which makes decisions “effectively unreviewable”.

Williams suggested redrafting the bill using models suggested by himself or the Law Council. The council proposed a minister could request a court on evidence to decide whether citizenship could be revoked. Williams’ proposal involved revocation by a minister only after a serious conviction had been secured.

Peter Wertheim, of the Executive Council of Australian Jews, also gave evidence to the committee, raising concerns at the automatic nature of the loss of citizenship. Wertheim was also concerned that fighting with all organisations could see citizenship revoked, even when some groups were not hostile to western democracies.

Kim Rubenstein, a professor of law at the Australian National University, agreed with Williams that the bill would be challenged in the High Court in a number of areas. She also said the bill questioned the notion of dual citizenship and whether citizens can love two countries equally.

“Once you’re attacking citizenship, you are attacking the very rule of law you are seeking to protect,” said Rubenstein. “You get yourself in a bind in that respect because you are undermining the core of the rule of law.”

In defence of the bill, Philip Ruddock, the government’s special envoy for citizenship, said the current criminal law was having no impact on radicalisation as people were being convicted and then radicalised in jail.

“For me citizenship has those certain elements, of commitment to the rule of law, parliamentary democracy, accepting of people of different backgrounds, different faiths, different religions,” said Ruddock.

“The fact that you accept those differences doesn’t mean you forgo the common elements that bind us all together.”


Gabrielle Chan

The GuardianTramp

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