The Coalition’s citizenship bill remains vulnerable to a high court challenge, constitutional lawyers have warned, despite a raft of changes to the original proposal that would reduce the risk of it being struck out.
Labor locked in its support for the Coalition’s measures on Thursday, confirming it would vote for the watered-down legislation to strip dual nationals of their Australian citizenship for terrorism-related activity.
But the opposition’s immigration spokesman, Richard Marles, rounded on the Coalition for what he argued was an attempt to politicise national security issues, and sought to sheet home responsibility to the government if the laws were eventually struck out by the high court.
Constitutional lawyer George Williams, the Anthony Mason professor at the University of New South Wales faculty of law, said the bill was “still vulnerable to challenge on separation of powers and other grounds”.
“They have cured this in some respects, but not in others,” he said.
Anne Twomey, a professor of constitutional law at the University of Sydney, said: “There are a few lurking constitutional problems in there, but it’s certainly nowhere near as bad as the previous version.”
The government has agreed to make amendments based on a report by the bipartisan security committee, including limiting the cases in which a person would be taken to have automatically renounced their Australian citizenship without requirement for conviction.
This would ensure this automatic renunciation could apply only to people who have engaged in terrorism-related conduct outside Australia, or had done so in Australia but had left the country before being charged and brought to trial.
The immigration minister, Peter Dutton, would also have the discretion to revoke the Australian citizenship of dual nationals who remained in the country, but only after conviction for an offence with a prison sentence of at least six years. A person would be able to apply for a review of such a decision.
The minister’s powers would be retrospective for existing convictions where a court has imposed jail terms of 10 years or more.
Twomey said limiting the automatic revocation to a small group of people who had gone offshore might have reduced the government’s constitutional risk.
She said one of the issues was whether removing a person’s citizenship “would be treated by the courts as something that is akin to punishment and therefore exclusively judicial in nature”.
Twomey said the part of the bill “most vulnerable to attack” would be the retrospective provisions for people who had already been convicted of certain offences.
She pointed to the high court’s decision in 1996 to strike out a New South Wales act that allowed for the detention of a single named person, convicted killer Gregory Wayne Kable.
“Here we don’t actually have people named but the way the legislation is constructed, we know exactly who they are,” she said. “We know the number of them and their names.”
The prime minister, Malcolm Turnbull, who had expressed concerns about Tony Abbott’s earlier citizenship proposals, said the government was now confident the laws would survive a challenge. But in a cautionary note on Wednesday, Turnbull added that “only time will tell” because “advice isn’t always borne out”.
Marles criticised the government for refusing to release the solicitor general’s advice. “The question of constitutionality lies with the government and ultimately it will be for the government to bear the responsibility of that,” he told parliament on Thursday.
But Marles pledged his support for the bill, saying it had undergone significant “narrowing” since it was first proposed and now struck the right balance.
“The overall scope of the number of Australians that this can be applied to literally has shrunk from millions down to dozens,” he said.
“I think what we now have before the parliament can in no way suggest that there is a piece of legislation which creates two classes of Australian citizens, there’s no way at all, given the very narrow focus of the bill before us.”
Marles, who complained on Wednesday that the Coalition was seeking to bring on debate before the opposition had been fully briefed about the amendments, accused the government of playing “games” with “silly behaviour which seeks to make political gain out of matters of national security”.
“National security is not a matter which is owned by either party,” he said. “National security is something that is owned by the vast majority of this parliament across the political spectrum.”
The shadow attorney general, Mark Dreyfus, accused Abbott of encouraging “all sorts of wild rhetoric” to exploit the citizenship issue “for cynical political advantage”.
Dreyfus, a member of the parliamentary joint committee on intelligence and security, said the bipartisan panel had proposed 26 substantive recommendations “to fix the many problems” and the “overreach” in the original bill.
“It went well beyond the stated intention of the government and it went well beyond what Labor supports – the sensible updating of existing citizenship law,” he said.
“Frankly, it is incredible to me that the government would even introduce into the parliament a bill which would strip the citizenship of a person for, say, defacing a postbox.
Dutton expressed a conciliatory tone during question time on Thursday, saying the committee’s recommendations had improved the legislation.
“I want to thank the leader of the opposition [Bill Shorten] and my opposite number for the support in relation to this bill,” Dutton said.
“We will continue to work together in the nation’s best interests and no doubt there will be further collaborations, because the threat will increase and it will be incumbent upon governments to make sure we put in place measured pieces of legislation which will ensure the safety of our people.”
In a separate development, the attorney general, George Brandis, introduced a bill to the Senate on Thursday to allow police to seek control orders for terrorism suspects as young as 14 and to create a new offence of advocating genocide.
These previously foreshadowed measures are part of the “fifth tranche” of national security legislation introduced since last year, but will not proceed to a parliamentary vote until at least February.
