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Despite recommendations from parliament’s security watchdog, Peter Dutton will press ahead with plans to ban Australian citizens with terrorism links from returning home. By Karen Middleton.

Dutton’s stance on citizenship laws

The minister for Home Affairs, Peter Dutton, this week.
Credit: AAP Image / Sam Mooy

The federal government has rejected the advice of parliament’s authoritative watchdog committee on intelligence and security, that before placing a two-year ban on Australian terrorism sympathisers returning home from overseas it should consider whether it puts them at risk or leaves them with nowhere to go.

Home Affairs Minister Peter Dutton has agreed to factor in the risk of physical harm or de facto temporary statelessness when assessing a return permit application from a banned person, but not when imposing the ban itself.

Dutton has also dismissed the committee’s call to restrict his legislation, affecting both dual and sole nationals, to those already involved in terrorism and to prove before prosecuting anyone breaching a ban that they knew they were subject to it.

The move to impose temporary return bans on Australians abroad with suspected terrorist sympathies is the latest in a range of moves aimed at preventing attacks onshore.

But experts in counterterrorism have raised concerns that some among the suite of security changes may make the risk greater rather than less.

The parliamentary joint committee on intelligence and security (PJCIS) examined the proposed temporary exclusions bill and recommended in an April report that it be passed, subject to 17 proposed changes and an assurance that the government had obtained advice from the solicitor-general on its constitutionality.

Dutton said he had obtained the advice – but not what it said.

Within hours of the arrest in Sydney on Tuesday of three men suspected of planning terrorist attacks, Dutton announced he would bring the legislation into parliament at the first opportunity.

Introducing it on Thursday, he said he had “substantially accepted” the recommendations of the PJCIS, which has a legal role to scrutinise security legislation and recommend improvements. But, in fact, he has rejected several of its key recommendations and only partly accepted some others.

It is rare for a government not to accept the recommendations of the committee, which is made up of MPs and senators from only the Liberal and Labor parties and traditionally takes a cautious, bipartisan approach to security issues.

Dutton told parliament the bill was designed to “delay Australians of counterterrorism interest from re-entering Australia until appropriate protections are in place”.

If passed, it will allow the minister to ban these people from returning to Australia for up to two years and will apply to people from age 14, subject to the approval of an independent review committee. People subject to the ban will be able to apply for a return permit, likely to involve monitoring or reporting conditions back home.

Dutton said about 230 Australians had travelled to Syria or Iraq since 2012, to fight with or support terrorist groups, and that about 80 were still active there.

He did not respond to the PJCIS’s concerns that the temporary exclusions bill could be unconstitutional because it impedes the right of Australian citizens to access their own country.

Constitutional and citizenship expert Kim Rubenstein, a professor of law and public policy fellow at the Australian National University, believes the proposed law is legally problematic.

“This is untested, uncharted area,” Rubenstein told The Saturday Paper. “Preventing a citizen from coming back into the country would be a new legislative step. As a matter of law, an Australian citizen does have a right to enter Australia. It’s unclear whether a government has actually the power to take the dramatic step of stopping an Australian citizen from residing in their own country.”

Officials from Dutton’s department have acknowledged there is a risk the proposed ban could breach the constitution but argued it is not significant.

The government has taken the view that the risk of a foreign fighter, family member or associate returning to Australia and engaging in terrorism outweighs the risk that the law keeping them away might be found invalid.

It has taken the same approach in legislating to automatically strip dual citizens of their Australian citizenship if they associate with terrorist groups or visit designated hotspots abroad.

On both measures, some legal experts are concerned the government has parked itself in a constitutional grey area it knows can only be clarified through a test case before the High Court – unlikely, given the laws apply to people abroad whose actions are clandestine.

In the case of the citizenship loss law, there is a clause in the legislation that allows the government to avoid notifying people they are no longer Australian citizens if doing so could pose a security risk. Home Affairs officials say at least 12 Australians have had their citizenship revoked under the law, which has been in place since 2015.

It only applies to dual nationals because, under international law, no country is allowed to strip citizenship from people who would be left stateless.

The Department of Home Affairs’ Commonwealth counterterrorism co-ordinator, Linda Geddes, defended its application last week in evidence to a public inquiry by the Independent National Security Legislation Monitor (INSLM), Dr James Renwick.

“These laws apply to terrorists,” Geddes said. “They do not apply to dual citizens that abide by our values, that are part of our society.”

But other experts argue the reach of laws to strip Australians of citizenship is already being extended, with the potential to be used against people accused of paedophilia and other criminal behaviour.

Only one of the 12 has been named publicly and notified – Australian foreign fighter Neil Prakash, who the government said had lost his Australian citizenship due to his activities overseas and because he was also a citizen of Fiji.

But Fiji has said he does not have – and is not eligible for – Fijian citizenship.

Australian officials have acknowledged they did not contact the Fijian government to check before notifying Prakash he was no longer Australian. They say the Australian legislation doesn’t require them to check with another country – despite the High Court having ruled in a series of dual citizenship cases that only the government of the other country can determine whether a person is eligible for or currently holds its citizenship.

The INSLM also has significant concerns about the citizenship loss law.

During his review hearings last week, Home Affairs officials said Australia had attempted to extradite Prakash from Turkey, where he is currently being held, but that the Turkish government had blocked his extradition.

In the wake of the Prakash case, Dutton wants the parliament to amend the citizenship law to require only a reasonable belief, not solid proof, that someone is a dual citizen.

Critics of the law, even before that change, say it is unworkable, unfair and potentially leaves people stateless without them realising it.

It also creates a catch-22 conundrum, because some terrorism offences under Australian law only apply to Australians overseas, and if a person’s Australian citizenship is automatically revoked when they enter a designated terrorist area or engage in potentially criminal behaviour, they theoretically cannot be prosecuted for it.

Home Affairs officials say that to get around this, the minister would have to restore the person’s citizenship to allow prosecution, prompting questions over the point of the revocation in the first place.

Those critics include the Independent National Security Legislation Monitor himself, James Renwick, who has indicated he has already decided parts of the citizenship loss law must be repealed and that his focus now is on what should replace it.

The current law automatically strips dual-citizen foreign fighters and in some cases their families – including anyone aged over 14 – of their Australian citizenship without their knowledge. There is no requirement for a court to endorse the move, or for the subject of revocation to have been convicted of a crime.

Renwick is examining whether revoking a person’s citizenship may make it harder to extradite and prosecute them, thereby pushing the problem and the risk onto other countries – something the United States secretary of state, Mike Pompeo, recently said home countries should not do.

Renwick supports some aspects of the legislation but is concerned by the automatic revocation of citizenship without reference to a court, or even a decision by a minister, without the opportunity for review and in many cases without notification.

“I have already made, I think, fairly clear that my pretty strong prima facie view is that they are neither necessary nor proportionate, nor do they adequately protect human rights,” Renwick said at last week’s hearing.

Home Affairs officials acknowledged that, because the citizenship loss is automatically triggered when people take certain actions or travel to particular areas overseas, the government has no idea precisely how many people are affected or the exact dates and times any revocation took effect.

The revocations are confirmed through a special committee within Home Affairs, the Citizenship Loss Board, which is made up of Commonwealth officials and intelligence officers.

Because of the board’s composition, Renwick noted last week, it was not subject to oversight by either the Commonwealth Ombudsman, who scrutinises the regular public service, nor the Inspector-General of Intelligence and Security, who scrutinises the security community.

Kim Rubenstein also gave evidence last week, arguing citizenship had historically been a form of social inclusion, but with this law it was being used to exclude.

She suggested the citizenship loss law was also potentially unconstitutional.

“I would argue you do have a constitutional right [to enter Australia],” Rubenstein told Renwick during evidence last week. “What is citizenship if not for the capacity to live in the country of which you are a citizen? ” She said that recognising that Australian citizens had a right to re-enter did not undermine security and “we use our other criminal law sanctions as a mechanism ... of dealing with them”.

Rubenstein warned the citizenship law was also potentially a breach of international conventions, especially as they related to children.

Law Council of Australia president Arthur Moses said his organisation accepted it was legitimate that there be “consequences for citizens who are deemed to no longer be loyal to Australia and its people”.

However, “the Law Council maintains the view that the existing citizenship-revocation provisions in relation to terrorism cases are neither necessary nor proportionate in their current form”.

Renwick’s report is due next month. If parliament passes the temporary exclusion law, it’s likely he will turn his attention to that, too.

This article was first published in the print edition of The Saturday Paper on Jul 6, 2019 as "The point of no returns". Subscribe here.

Karen Middleton
is The Saturday Paper’s chief political correspondent.