Revoking a person’s citizenship without first determining criminal guilt in an Australian court is “manifestly inadequate”, the executive council of the Australian Jewry has warned in its submission to the federal government on changes to anti-terrorist laws.
The peak body for the Australian Jewish community said it offered its in-principle support to the revocation of citizenship for dual nationals involved in conflicts in Syria and Iraq after legislation on the issue was introduced to parliament last week.
“Generally, we support the thinking behind the government’s proposals to extend the law on revocation of citizenship, although we believe some aspects of it require refinement,” its executive director, Peter Wertheim, told Guardian Australia.
But the organisation expressed particular concerns with proposed amendments to section 33AA of the Citizenship Act, which would see people automatically stripped of their Australian nationality if they engaged in or funded terrorism.
“Whatever the constitutional position may be, proposed section 33AA would make it possible to decide on a person’s allegiance to Australia on the sole basis of untested interpretations of alleged evidence, with no opportunity for the accused person to face his or her accusers and challenge the case against him or her. This opens the door wide to error and abuse,” its submission said.
“If citizenship is to be revoked under proposed section 33AA on any basis that falls short of a determination of criminal guilt under Australian law, then in our view that basis will be manifestly inadequate to justify so drastic a measure.”
The organisation has labelled the revocation of citizenship an “extreme step”, arguing that the immigration minister should have discretion to step in and stop the otherwise automatic stripping of citizenship. People should have the chance to challenge the revocation before it happened, rather than retrospectively.
“It would be prudent to give the minister a discretion not to issue a notice of revocation if it appears in all the circumstances that a person to whom the legislation appears to apply has not repudiated his or her loyalty to Australia,” Wertheim said.
“Even if that proposal survives a constitutional challenge, it seems to open the door to error and abuse to have the truth of those allegations determined behind closed doors by the executive arm of government, and without the minister having to hear from the person affected.”
The submission said: “The bill makes no provision for reinstatement of the person’s citizenship if the conviction is quashed or overturned on appeal.”
More protections for children were also needed.
“No account is taken of the degree of culpability of the person or the nature of their involvement in the commission of the offence (eg as an unwitting accessory). Some of the categories of convictions that can lead to loss of citizenship (eg defacement of government property) seem to us to be too broad.”
Legal experts have warned that applying the revocation of citizenship for offences like damaging property “casts the net too wide”, but the immigration minister, Peter Dutton, said the changes were necessary to protect high-profile buildings such as parliament house, and were included after consultations with security agencies.
The new anti-terrorism measures are being scrutinised by the joint intelligence committee. It is expected to hand down its findings in late August, after parliament’s winter recess.
The government has called for community groups to make submissions on how best to strengthen and protect Australian citizenship.
Apart from discussing citizenship revocation, the organisation has urged stronger federal laws against inciting violence, arguing that “serious violent crime that is fuelled by racial and other forms of hatred is no longer a rare and isolated phenomenon in Australia”.
Although federal civil laws against inciting racial violence exist in the Racial Discrimination Act, uniform criminal law across the states and territories does not.
“Those who engage in hate-motivated violent behaviour are liable to criminal prosecution under the existing law,” Wertheim said. “But those who incite them to hatred in the first place by appealing to, and seeking to manipulate, their prejudices, fears and grievances, including on the internet, are effectively beyond the reach of the criminal law in most parts of Australia,” Wertheim said.
“This is a serious gap in the law.”
Provisions for making comments in “good faith” for academics, scientists and artists effectively narrow the application of the criminal law and are “misconceived”, he said.
“How can a person who intends that another person or group will be subjected to violence on the basis of their race ever be said to be acting in good faith?”
