Suspected terrorists to lose dual citizenship
Australia is set to revoke the citizenship of dual passport holders who are foreign fighters or suspected of terrorism.
Tightening regulations of the Citizenship Act 2007 has been recommended by the former Independent National Security Legislation Monitor, Bret Walker SC, and the joint Commonwealth - New South Wales review of the Martin Place siege.
But leading constitutional lawyer, Professor Kim Rubenstein, who contributed to the penning the Citizenship Act 2007, believes the criminal court is a better place to deal with suspected terrorists.
When Prime Minister Tony Abbott gave an address on national security at the Australian Federal Police Headquarters in Canberra on Monday, he said that the Martin Place siege gunman, Man Haron Monis, was “given the benefit of the doubt when he applied for a visa. He was given the benefit of the doubt for residency and citizenship.”
“For Australian nationals, we are (now) examining suspending some of the privileges of citizenship for individuals involved with terrorism. Those could include restricting the ability to leave or return to Australia and accessing consular services overseas as well as access to welfare payments.”
“The criminal court is a much better way of dealing with (terrorism) than citizenship.”
– Professor Kim Rubenstein, of Australian National University
Already, dual passport holders cease to be Australian citizens if they serve in the armed forces of a country Australia is at war with, as do their dependent children aged under 18, provided it doesn’t contravene international obligations and render them stateless.
The immigration minister can also revoke a dual citizen’s Australian citizenship if it continuing is “contrary to the public interest”.
In 66 years of these provisions, they’ve never before been used by an Australian Government.
There are further international obligations, according to Bret Walker, who points to UN Security Council Resolution 1373, where Australia has to “prevent the movement of terrorists and terrorist groups by effective border controls and controls on issuance of identity papers and travel documents.”
The Federal Government has cancelled the passports of 70 Australians who were suspected of planning to fight with the terrorist organisation ISIS.
Walker continues, “The Citizenship Act also prohibits approval of a citizenship applicant who is assessed by ASIO as a risk to the security of Australia, or who has been convicted of certain serious criminal offences.”
He recommends that the government consider stripping citizenship if the Immigration Minister "is satisfied that the person has engaged in acts prejudicial to Australia's security and it is not in Australia's interests for the person to remain in Australia", provided it does not make the person stateless.
Such a revoke would include offences under the Foreign Incursions Act (now incorporated by the Commonwealth Criminal Code Act 1995 due to recent legislative changes) as well as terrorism offences under the United Nations Charter.
Walker believes dual citizenship was “deeply problematic”, and raises “divided loyalties”. The 2002 legislation that granted freedoms in dual citizenship “should be reconsidered” as it made foreign fighters harder to track, as well as clouded citizenry obligations to fight for Australia in time of war, particularly if conscription was instigated by the Governor-General.
“Dual citizenship is not a human right. Its permission in Australia since 2002 does not render it anything like traditional,” Walker wrote.
Such changes are supported by former army commander Peter Leahy, of the National Security Institute at the University of Canberra.
Leahy, who pointed to his infamous quote that we would “fight Islam for 100 years” said, “There’s a pledge people take for Australian citizenship: ‘I’ll obey its laws’. If they don’t obey that pledge, they can get on their bike.”
He conceded it would be prone to a “strong layer of the law” as “we can’t just do it on suspicion, but as a matter of principle.”
“It sends a strong message to people that they can’t break the laws of Australia.”
The ‘Martin Place Siege: Joint Commonwealth – New South Wales Review’ identifies policy and legislative changes to support decisions on visa and citizenship applications as a “key issue”.
In the case of Monis, “The Review was advised by the Department of Immigration and Border Protection (Immigration) that if the Monis situation presented itself again today, it seems likely that a visa and citizenship would still be granted.”
Monis, who received government assistance as an asylum seeker and later through Newstart and Austudy, made a fraudulent visa application. Such “bogus” applications were cited by the Prime Minister in his national security address and, according to mooted changes, would render such applications refused, with no right of appeal.
Monis’ initial application was fraudulent and this wasn’t identified at the time, with the Martin Place Siege Review suggesting that resources are stretched for the 32 million international passengers that come to Australia every year.
The review recommends that Immigration better assess risks during pre-visa, post-visa and pre-citizenship stages. It points to Section 501 of the Migration Act 1948, and said visas and citizenship should be revoked if the applicant was likely to engage in criminal conduct in Australia, vilify or incite discord in a segment of the Australian community, or represented danger or a violence risk.
Proposed changes have been treated with caution by Professor Kim Rubenstein, of Australian National University.
She acknowledges that “legislation is not the constitution” and “any law at any time can be reviewed,” but warns that “citizenship is not a clear area” within the constitution and changes could lead to “a challenge in the High Court.”
“The criminal court is a much better way of dealing with (terrorism) than citizenship,” she said.
The preamble to the 2007 legislation unites “all Australians, while respecting their diversity,” she said.
She believes to revoke it on the basis of a threat also revokes a common bond and, in itself, threatens to become a point of national division and marginalisation.
Rubenstein wrote, “Amid concerns about rising extremism, this is the last thing we should be doing.”
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Australia is set to revoke the citizenship of dual passport holders who are foreign fighters or suspected of terrorism