Cautious backing for Abbott’s plan B
Top legal experts have given cautious backing to the constitutionality of the Abbott government's latest proposal to strip dual national terrorists of their citizenship.
The government is understood to have largely ditched previous plans to give Immigration Minister Peter Dutton the power to revoke citizenship, which were roundly attacked by many top lawyers.
Instead it is expected to expand an existing law that automatically cancels the citizenship – subject to judicial review – of dual nationals who fight with foreign militaries against Australia, under plans to be unveiled to Coalition MPs in a party room meeting on Tuesday.
Critically the compromise is much more likely to win Labor's backing and restore bipartisanship after a fortnight in which national security became the subject of a political slanging match. Labor has previously expressed in-principle support for such an approach.
The proposal, which is also expected to assuage concerns of Coalition figures such as Malcolm Turnbull, is tipped to extend section 35 of the Citizenship Act to non-state groups such as the Islamic State.
Greg Craven, vice-chancellor of the Australian Catholic University who strongly attacked the government's previous proposal, said that the new option was much less likely to fall foul of the High Court.
"You'd have to see the draft but, on the face of it, if it's a careful draft and they don't do anything silly, it should work," he said.
The major issue with the previous proposal was that it gave powers to the minister that should be only wielded by courts, making it unconstitutional, he said.
Section 35, however, works automatically - the law itself strips the citizenship from the person deemed to have fought with a foreign military or, under the proposed extension, a terrorist group.
Problems would arise if the law limited the scope of judicial review or gave too much power to the minister to decide whether or not someone was a terrorist, Professor Craven said.
While the minister will have to issue the cancellation, security and intelligence agencies will likely make the call that a person is fighting with a terrorist group against Australia and its interests.
George Williams, a law professor at the University of NSW, also said the proposal was less likely to be struck down by the High Court, though he said he remained "very concerned" about it.
He said he would prefer to see an option where the minister could revoke citizenship only after a criminal conviction.
Don Rothwell, an international law professor at the Australian National University, stressed the new proposal could still be unconstitutional, depending on who determined the loss of citizenship and how the review process worked.
"Will there be a capacity for just an administrative appeal, as has been floated? Or will there be the capacity for an appeal on the merits?" he said. "That goes back to the constitutional question."
Labor leader Bill Shorten branded the latest move a "significant backdown from the Prime Minister". But he reiterated a strong support in principle for revoking citizenship of terrorist fighters without making them stateless.
"Any dual citizen taking arms against Australia should be stripped of their citizenship."
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Stripping citizenship won’t hurt IS, but it might help it
New powers to strip citizenship from dual national jihadis have little value as national security policy and risk damaging the campaign to combat violent extremism.
The government's policy rationale for the measure is that it will stop hardened fighters, experienced from the battlefields of Syria and Iraq, from returning home to plot terrorist attacks and inspire others to follow the extremist doctrine of Islamic State and like-minded groups.
But the government, with its existing powers to cancel the passports of Australian fighters in Syria and Iraq, already has tools to prevent the return of jihadists to Australia.
So what will the policy achieve, other than giving Prime Minister Tony Abbott the opportunity to play partisan politics and accuse the Opposition of rolling out the red carpet to terrorists?
According to James Brown, the security analyst and former army officer now working at the US Studies Centre at the University of Sydney, not much.
"This won't have a meaningful impact on IS," he says.
Indeed, the citizenship crackdown could help the terrorist group.
With the possibility of homegrown extremists facing the Australian justice system being removed, those left without Australian citizenship will continue to wreak havoc across the Middle East in pursuit of IS' twisted vision of a caliphate.
Alternatively, the former dual nationals will become the problem of the country for which they still hold citizenship. In most cases, those will be countries such as Lebanon and Turkey, fragile states dealing with millions of refugees pouring in from the conflict and not as well as equipped as Australia to defuse the threat.
The government maintains that Australia's courts are "toothless" at securing convictions of terrorists.
The contention is puzzling given that the government introduced a raft of legislation creating new offences for those who travel to Syria and Iraq and other measures that make it easier for evidence gleaned overseas to be used in Australian trials.
The danger of stripping citizenship is that it will further fray the bonds of trust between the Islamic community and the rest of Australia.
As Monash University terrorism expert Greg Barton observes, community harmony is "not just about doing something nice, something that makes you feel good". Rather, it is central to the nation's security.
Racial and religious divisions in society make recruiting easier for IS but also make members of the Islamic community reluctant to inform authorities about people of concern.
"With encryption and the sophisticated online recruiting strategies of Islamic State, it is hard to keep track of those who are being radicalised," Dr Barton said. "Security agencies rely heavily on tip-offs from members of the Islamic community."
"I fear there will be a decline in willingness of people coming forward."
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