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New citizenship laws being rushed through parliament will require judges to define ‘Australian values’ and ask them to impose what critics call a ‘civil death penalty’. By Karen Middleton.

Rushed citizenship laws ask judges to define ‘Australian values’

Home Affairs Minister Clare O’Neil.
Home Affairs Minister Clare O’Neil.
Credit: AAP Image / Lukas Coch

Judges will be forced to define what it means to be Australian before they can decide whether dual nationals who are convicted criminals should be stripped of their citizenship, under laws rushed into parliament this week.

The new process requires a judge to determine that a person’s crimes have “repudiated their allegiance” to Australia by repudiating “Australian values” – concepts not defined anywhere in Australian law.

One of the nation’s foremost experts in citizenship law, Professor Kim Rubenstein, of the University of Canberra, confirms the wording takes judicial consideration of citizenship into uncharted territory.

“We’re having placed in legislation a reference to a concept that has never been defined as a matter of law,” Rubenstein tells The Saturday Paper. “And so we will be requiring judges to effectively develop law about the meaning of Australian values and only in the context of a negative notion rather than as a positive notion, because it’s here only in the context of stripping someone of their citizenship.”

The change is part of the government’s move to fix two separate laws related to citizenship and immigration detention, which have been struck down by the High Court. Common to the court’s rulings in two citizenship-cessation cases and a separate one on indefinite detention is the principle that successive governments overreached with measures that amounted to “punishment” – something only a court can impose.

The High Court’s decisions have put the Albanese government under significant political pressure in the final sitting weeks of parliament, as it faces accusations of ham-fisted handling, particularly on the detention issue.

The decisions on stripping citizenship mean the government is now required to transfer that responsibility from the home affairs minister to the courts. Under the change, a judge could take that step at the time of sentencing and only on the minister’s application.

“The government understands the complexities of this significant legislation and is committed to a robust and workable regime,” Home Affairs Minister Clare O’Neil told parliament, introducing the bill on Wednesday. “Laws that fail in the courts don’t make our country any safer.” She said citizenship involved “reciprocal rights and obligations”. “It is something to be treasured and not to be taken lightly.”

The legislation’s wording effectively puts the onus on judges to decide what makes someone uniquely Australian and then determine if their particular conduct in the nominated categories constitutes a breach of the “values, democratic beliefs, rights and liberties that underpin Australian society”. They will be required to consider a long list of criteria in making that assessment.

The changes respond to the cases Alexander v The Minister for Home Affairs and Benbrika v The Minister for Home Affairs. In the second case, the High Court upheld convicted terrorist Abdul Nacer Benbrika’s application to regain his Australian citizenship, which Peter Dutton removed as home affairs minister in 2020.

Benbrika was sentenced to 15 years’ jail in 2008 and was detained beyond the end of his sentence on a continuing detention order. That expires in late December and the federal government has applied to the Victorian Supreme Court for an extended supervision order to have him subject to monitoring on his release, with a ruling due in the next three weeks.

This week the government confirmed the proposed citizenship changes would not affect Benbrika, who fell outside its reach because his offence occurred before the current regime began in 2015. The new arrangements will not reach beyond that.

Some legal experts believe the new laws will make it significantly more difficult to remove citizenship. Given the breadth of the criteria, there are also questions as to whether judges would be willing to take that step and risk their decision being overturned by higher courts.

The Saturday Paper asked the office of Minister O’Neil why the government had included the “values” repudiation requirement among the criteria for judges to consider and how they could rule on that safely without any definition of Australian values set down in law.

The Saturday Paper also asked whether the specified criteria would make it harder to strip dual nationals of their Australian citizenship and whether that was the government’s intent. O’Neil’s response, via a spokesperson, was: “Interpretation of the law is a matter for the courts.”

The new process also appears to leave open the possibility that a dual national convicted of a relevant offence could seek to renounce any other nationalities before sentencing to escape being stripped of their Australian citizenship and avoid deportation. The government cannot deport someone who has only Australian citizenship and cannot render someone stateless.

In the House of Representatives on Wednesday, crossbenchers condemned the government for ramming through the citizenship changes with minimal debate and no warning.

“This is outrageous and it should send shivers down the spine of everyone in this country who is concerned about the rule of law,” Greens leader Adam Bandt told parliament. “It’s one of the most fundamental issues, the bedrock of democracy in this country, and we get an hour to debate it – and, as a result, someone can lose their citizenship!”

Independent Kylea Tink sought to raise the age of those who could lose their citizenship from 14 to 18. Independent Zoe Daniel tried to have the section on “values” struck out. Both failed.

Under the changes, the minister could apply to a court to strip citizenship from a dual national convicted of a “serious offence”. The legislation defines that as offences involving explosives and lethal devices, treason, mutiny, espionage, foreign interference, foreign incursion and recruitment, and some terrorism offences. Other crimes deemed “serious” under criminal law have not been included.

On Thursday, Opposition Leader Peter Dutton wrote to Prime Minister Anthony Albanese demanding that offences that were included when citizenship was cancelled by ministerial decree be reinstated to the new system. They are: advocating terrorism or genocide; threatening security, including by training with a foreign military; terrorism-linked offences relating to monitoring devices; murdering or otherwise harming Australians overseas; child sex offences outside Australia that are captured by Australian law; slavery; torture; and using a carriage service for child abuse material or to engage in sexual activity with or otherwise harm someone aged under 16. At time of press, Albanese had not responded.

The government is also making changes in response to a separate High Court ruling on indefinite detention, delivered last month. That ruling prompted the government to release 142 non-citizens and to draft and urge the parliament to pass new laws subjecting the released people to movement restrictions and strict monitoring via electronic ankle bracelets.

The government now faces a fresh High Court challenge as it seeks to pass more legislation next week to create a new preventive detention regime, targeting some of the worst offenders. Modelled on the existing regime, which is restricted to terrorism offences, the proposed new rules will be designed to re-detain people with convictions, especially child sex offenders.

The two citizenship rulings, Alexander and Benbrika, were handed down in June last year and on November 1 this year. Clare O’Neil did not bring forward legislation to respond to the citizenship rulings until this week, when it was produced in the middle of the controversy surrounding the court’s separate detention decision, which blindsided the government two weeks ago.

Made suddenly at the end of a hearing on November 8, that High Court ruling on indefinite detention overturned a 20-year-old legal precedent. The government responded that, under the circumstances, it had no option but to immediately release not only the detainee whose challenge to his detention elicited the finding – an offender known by the anonymous moniker NZYQ – but dozens of other non-citizen criminals and other detainees whose visas have been revoked on character grounds. The opposition argues it could have chosen to release only those whose circumstances were identical to those of NZYQ. The government denies this.

“The High Court in its decision required the release of individuals in similar circumstances to the plaintiff, NZYQ,” Immigration Minister Andrew Giles told parliament on Thursday. “The government had to comply with this as any government would.”

The court found detaining non-citizens pending deportation was lawful but became unlawful when there was no real prospect of deportation, making detention effectively indefinite. For a range of reasons they cannot be deported, including that some detainees are stateless, others’ home countries will not accept them back and some are recognised as refugees.

After reassessments, the number of detainees released has grown steadily over the past fortnight. By this week, it had reached 142.

The court’s abrupt ruling on the same day as the final hearing in the NZYQ case broke with its usual practice of taking time to consider the arguments before passing judgement and giving reasons. Caught unawares, the government rushed hastily drafted legislation into parliament within days to restrict the affected people’s movements. The absence of reasons explaining the legal basis for the court’s decision until they were published this week left the government to legislate without knowing which specific points of law it needed to address.

The initial legislation imposed restrictions but the government amended it further this week, including to keep child sex offenders away from schools and to further restrict the movement of others.

The new measures prompted another High Court challenge, filed this week by a 37-year-old Hazara refugee who was fined $2000 for an indecent assault committed 12 years ago while he was in detention awaiting determination of his asylum application. He has not offended since and was released into community detention earlier this year but is being subjected to the restrictions. His lawyer, David Manne, of Refugee Legal, says the new restrictions were not deemed necessary until now and amount to another unlawful punishment.

Manne said his client “lived in the community with relative freedom, without an ankle bracelet or curfew for nine months”.

The government’s new sets of amendments prompted the Greens to deride them as “fix-it-up bills” and drew more condemnation from the Coalition.

On the same day O’Neil was unveiling the changes, her former departmental secretary, Michael Pezzullo, was sacked after an independent review of his conduct commissioned by the Australian Public Service Commissioner found 14 breaches of the public service code of conduct.

The high-profile secretary, who also served the Coalition government, had been forced to stand aside in September after Nine newspapers revealed details of hundreds of encrypted messages he had exchanged with Liberal Party operative Scott Briggs. The inquiry found he had used his power to seek to gain a personal benefit or advantage, engaged in gossip and disrespectful critiques of ministers and colleagues, failed to protect sensitive government information, failed to act apolitically and failed to disclose a conflict of interest. On Tuesday, acting secretary Stephanie Foster was made permanent, apparently without the government’s regular process of considering other candidates.

Pezzullo’s fate was overshadowed by the ongoing controversy surrounding the High Court decisions and the government’s response.

On Tuesday, the court published its reasons in the NZYQ case, including suggesting an expanded preventive detention regime might address the government’s problem. It specifically cited child sex offences.

The judges also noted no convicted non-Australian child sex offender had ever been successfully transferred to a third country when deportation to their home country was not possible. In short, no other countries have been willing to take them.

The government had tried repeatedly to persuade other countries to take NZYQ, including the United States. All refused. Having him accepted by a third country would have seen the High Court action abandoned, sparing the government the situation in which it now finds itself.

Instead, it was forced to draft the urgent legislation, including initial restrictions, pleading with the Coalition to support it. Agreement was reached but when the bill was introduced Opposition Leader Peter Dutton refused to back it until the measures were toughened.

The government acquiesced, leaving the released people subject to compulsory monitoring via electronic ankle bracelets and restrictions on where they could go and who they could contact.

This week, the Coalition refused to support the updated legislation in the House of Representatives, prompting O’Neil to accuse Dutton and his colleagues of “protecting paedophiles over children”. Liberals condemned that as a “disgusting” smear.

The government deferred the bill pending the preventive detention legislation, which O’Neil says will be produced next week.

“We are not leaving here until a preventative detention regime is in place,” O’Neil told ABC Radio National on Wednesday. “To do that, we are going to need Peter Dutton and the Liberals to work with us. They are very good at saying ‘no’. Now is the time to come into the parliament to work with the government to help keep the community safe.”

Later on Wednesday, the opposition joined with the government to pass the citizenship bill through the House. In the Senate, however, it repeated its refusal of a fortnight ago, proposing amendments reflecting the demands in Dutton’s letter. On Thursday afternoon, the government deferred debate on the bill until next week.

Dutton said the government had “gone to water” and there were flaws in the citizenship bill as there had been in the initial response on the detainee ruling.

“They were driven by a political imperative to try and cover up their mess,” Dutton told parliament. “To try and somehow look strong by driving through, in a hurried fashion, national security legislation.”

Kim Rubenstein is also concerned at the haste with which the legislation is being pushed through. She has argued against stripping citizenship since the law allowing it was introduced in 2015. The changes do little to alleviate her concern, although she says they at least restore the separation of powers and require a court to consider many factors before choosing that option.

Rubenstein points to remarks by the High Court’s Justice James Edelman in the Alexander case, in which he described removing citizenship as “a form of civil death”. Rubenstein says it is appropriate that a long list of criteria be fulfilled before doing that.

“This is quite a momentous change in citizenship law in Australia, in that we are asking judges to effectively provide a civil death penalty because citizenship is the source of your civil rights,” she says. “You’re asking a judge here to make a decision to create a civil death. So these are all important measures to protect against that.”

This article was amended on December 2 to clarify that the government is seeking an extended supervision order from the Victorian Supreme Court. 

This article was first published in the print edition of The Saturday Paper on December 2, 2023 as "Dual nationals at dawn".

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