A Melbourne woman stripped of Australian citizenship for allegedly serving Islamic State has lodged a high court challenge in a bid to reverse the operation of laws that automatically cancel citizenship.
Zehra Duman lodged the case on behalf of herself and her two children challenging a notice sent by the home affairs department in July 2019 claiming she is no longer a citizen because the home affairs minister, Peter Dutton, had learned she served Islamic State after it was listed as a terrorist organisation in 2016.
Duman’s case is the first of its kind, challenging laws passed by the Abbott government in 2015 creating powers to strip Australian citizenship from dual nationals convicted of terrorist offences or deemed to have renounced citizenship by their own conduct, even without a conviction.
Duman allegedly left Australia in 2014 to marry a Melbourne Isis fighter, Mahmoud Abdullatif. According to court documents, seen by Guardian Australia, Duman is still in al-Hawl camp in Syria with her two children.
The notice sent to Duman claims that she lost citizenship on 6 May 2016 by the operation of section 35 of the Australian Citizenship Act 2007 because she was allegedly “in the service of a declared terrorist organisation”.
The law requires the minister to believe the person will not be rendered stateless, but Duman is also a citizen of Turkey.
Duman’s writ of summons warned that if she is stripped of citizenship her children, who were born in Syria in July 2016 and September 2018, will not be eligible for Australian citizenship.
Duman is seeking a declaration that her children are eligible to become citizens and that she is still a citizen, or that section 35 is invalid in its operation on her.
The case challenges the validity of the section on the basis Duman is not within reach of the commonwealth’s “aliens power” because she is an Australian citizen by birth and descent.
The criteria used in section 35 “[do] not constitute a renunciation” of that citizenship. Permanent exclusion from citizenship must be justified by “a substantial reason” and loss of voting rights must also be “reasonably appropriate and adapted” to an end that is compatible with representative government – both of which were lacking, Duman’s writ argued.
Duman’s case argues that automatic removal of citizenship is akin to parliament judging criminal guilt and imposing a punishment, in breach of the separation of powers.
Duman is represented by the refugee and stateless person charity Human Rights for All and a legal team led by Ron Merkel.
The case was lodged in mid-April, with notice sent to attorneys general about the alleged breach of the constitution on 28 May.
At a directions hearing on Thursday, counsel for the commonwealth, Perry Herzfeld, indicated the case was not likely to be heard until at least October.
Justice Geoffrey Nettle appointed Duman to the position of litigation guardian for her children and set a date of 24 July for parties to agree on the facts of the case or notify the court that no agreement had been reached.
The automatic renunciation provisions have been used at least a dozen times. In September, the independent monitor of national security legislation, James Renwick, warned the provisions did not “pass muster”, did not protect human rights and might breach international law.
The call prompted Dutton to introduce a bill to replace the provisions with a a discretionary ministerial power to cancel citizenship, which is currently before the parliamentary joint committee on intelligence and security.
Despite his criticism, Renwick believed the current powers were constitutional, on the basis the commonwealth has “the power to determine to whom is attributed the status of alien”.
In February that assumption was successfully challenged in the case of Love and Thoms, a landmark decision that Aboriginal Australians are not aliens for the purpose of the constitution and cannot be deported.
