Revoking the Citizenship of Terrorists Mere ‘Symbolism’: Professor

Police officers that form part of the Australian Joint Counter Terrorism Team stand outside a home they raided as part of an operation in which they arrested three men who were allegedly preparing to attack the public in Melbourne, Australia, on Nov. 20, 2018. AAP/David Crosling/via Reuters

There was insufficient cause for Parliament to rush through laws that allow the government to strip citizenship from dual nationals convicted of certain offences, says Professor George Williams

A Senate Committee is hearing submissions on the Australian Citizenship Amendment (Citizenship Repudiation) Bill, which was urgently passed last year when the High Court ruled that indefinite detention of detainees was illegal under the Constitution.

Professor Williams, AO, specialises in constitutional law at the University of New South Wales. He was formerly the Dean of the Law Faculty.

“The submission of the [Australian Security and Intelligence Organisation or ASIO] makes clear that this is actually not a measure that is well calibrated to improve the national security and safety of Australia, let alone the world. Particularly given we may actually be exporting a very dangerous person to a country far less able to monitor and mitigate the threat,” he told the Parliamentary Joint Committee on Intelligence and Security on Feb. 19.

“And as ASIO recognises, it’s quite possible for people still to take action against Australians outside of Australia, or to project influence into Australia.”

More Symbolism Than Anything Else

According to Mr. William’s written submission, “Citizenship revocation is not an appropriate or effective means of combating terrorism in the first place.

“Stripping a person of their citizenship is more about symbolism and gesture politics than preventing terrorism. The tactic is ineffective and potentially counter-productive, and should be abandoned,” he wrote.

“There is a good reason why very few countries revoke the citizenship of terrorists. They have recognised that cancelling citizenship does not deter terrorism, nor does it make the world safer.

Melbourne Muslim cleric Abdul Nacer Benbrika, was arrested and charged with directing the activities of a terrorist organisation on Nov. 8, 2005. Last year he won a High Court challenge to the law that enabled a government minister to strip him of his Australian citizenship in 2020 over his terrorism convictions. AAP Image/Network Seven

Multiple Drafting Issues

The professor told the inquiry there were several drafting issues with the “rushed laws.”

He questioned why some offences could trigger citizenship revocation, such as advocating mutiny, which is “a speech-based offence of a much lower magnitude in terms of possible imprisonment than [the] other offences.”

“Why is it appropriate to permit the revocation of citizenship of a child as young as 14?” he said. “This seems highly problematic, even given the requirement that any decision involving a child take into account their ‘best interests.’ Given it is hard to see that the revocation of citizenship of a child will ever be in their best interests, what is the point in extending the regime to this age group?”

He also expressed concern over espionage provisions, where he said “’recklessness’ offences have been identified as applying, particularly to journalists. It raises the very real prospect that journalists who may supply information to foreign media organisations can be picked up by those offences, and now those journalists could risk losing their citizenship as well. And that magnifies the chilling effect.

“It’s [the] problem with hoovering up a wide range of provisions ... rather than specifically focusing in on the most serious issues.”

Professor Warns of Slippery Slope, Community Danger

Professor Williams warned that there may be a risk of “normalising citizenship revocation such that arguments will be made to extend it generally to other crimes, such as sexual offences involving children, or to serious crimes more generally.

Conversely, “The crimes listed [in the current Act] are all serious but why are they, and not others, fixed upon for this consequence?”

And regardless of his concerns with its drafting, the legislation will not have the desired effect of keeping Australians safer, he said.

“[If] a country refuses to take back their citizen who has been stripped of citizenship in Australia, this removes the possibility the person can be deported. That person, in conformity with the [High Court] decision, will then need to be released into the community,” he warned.

“Other nations might also follow Australia’s lead by revoking the citizenship of their own dual nationals who have been convicted of terrorism. This could see dangerous offenders deported to Australia, just as we are seeking to do to other nations. The result could be an increasing number of countries exporting terrorist offenders and a souring of relations between nations.”

Mr. Williams called for other measure to combat terrorism including control orders, warrantless searches, and covert surveillance.

“These should be the focus of the fight, rather than a symbolic and counter-productive gesture to strip Australians of their citizenship.”