The Liberal party’s ideological allies in the Institute of Public Affairs (IPA) have called on the government to rule out a minister stripping sole nationals of their Australian citizenship, saying this would be “an outrageous attack on the rule of law”.
Simon Breheny, director of the IPA’s legal rights project, also called for the coming legislation dealing with dual nationals to include a comprehensive judicial review process so that a person could challenge the case.
Breheny’s comments come as the government prepares to introduce legislation in the next sitting fortnight to give the immigration minister, Peter Dutton, the power to revoke the Australian citizenship of dual nationals who are deemed to be involved in terrorism even if they have not been convicted of a crime.
The government deferred a decision on a related proposal – to allow the citizenship of sole nationals to be removed if a person could apply for citizenship elsewhere – after a cabinet backlash. The option remains alive in a discussion paper currently out for public feedback, and was also backed in a letter signed by more than 40 Coalition backbenchers.
Breheny expressed concerns about the potential for the latter proposal to leave someone stateless and he called on the government to categorically rule it out.
“The question of whether a minister should have the power to, at his or her discretion, revoke sole citizenship from an Australian citizen seems to me to be an outrageous attack on the rule of law and certainly not something that the government should be considering. I think it should be taken off the table,” he told Guardian Australia.
“If we’re talking about taking citizenship from people who might have the opportunity to apply for citizenship elsewhere, that to me doesn’t sound like a high enough threshold when we think about the high consequences that flow from making someone stateless.”
Breheny drew a distinction between sole and dual nationals. He said it was a privilege to hold dual nationality, and stripping suspected terrorists of Australian citizenship when they already held citizenship of another country did not raise the same level of concern.
Breheny emphasised, however, that such people should have access to a judicial review that included the merits of the case against the suspect, otherwise “we risk not having a system that ensures a proper check of ministerial power”.
“The principle remains that a proper form of judicial review should be a merits-based form of judicial review, not just a procedural fairness question,” he said.
“If there’s a level of confidentiality needed for certain information that Asio [the Australian Security Intelligence Organisation] has that the minister has based his or her decision on, the principle remains that it should be reviewable because the courts can hold in-camera [private] proceedings where there’s a higher level of confidentiality.”
Dutton reaffirmed that the government would not render people stateless and that a dual national whose Australian citizenship was revoked would be able to apply for a judicial review “through the federal court all the way up to the high court”.
But Dutton has previously hinted that the judicial review would be limited in its scope. On Friday he said: “The government’s not going to have the courts second-guessing ministerial decisions.”
On Tuesday, when asked to clarify whether people would be able to test the evidence not just the process, Dutton said the details would be clear in the legislation.
“They will be able to test the process, and as I say, the evidence, the gathering of information, the classified information is for consideration of the minister. That is the way in which we propose it to work,” he said.
“We do believe very strongly in having judicial oversight, but the decision in the first instance will be made by the minister of the day. That is a very important principle because I think there needs to be a commonsense application of the law based on all the facts available to the minister.”
Philip Ruddock, a former immigration minister who is overseeing the government’s consultations on citizenship, said the judicial review would be able to consider whether the minister had properly applied the law.
Ruddock told the ABC’s Q&A program that an informant who witnessed a beheading in Syria would be unlikely to be able to come to Australia to give evidence in court. He said he had “enormous confidence” in the security agencies that collected intelligence.
Another former Howard government immigration minister, Amanda Vanstone, said she despaired to learn that people on her side of politics thought it was acceptable for a minister to revoke an Australian citizen’s rights “in the blink of an eye”.
Dutton did not respond directly to Vanstone’s criticism, but suggested elections provided a safeguard because governments could be voted out “if people believe that we’re not doing the right things in terms of these terrorists”.
He said 16 people had lost their Australian citizenship since 1949 because of existing provisions relating to fraud in the application process, settlement of a conviction after the granting of citizenship, or service in the armed forces of a country at war with Australia.
The prominent human rights lawyer Julian Burnside, QC, said judicial review “doesn’t help because all judicial review does is check whether the decision maker has gone through the right process”.
“For something as important as this there is no proper substitute for a judicial hearing and a decision by a judge on the facts found,” Burnside said told the ABC.
The president of the Human Rights Commission, Professor Gillian Triggs, said the debate seemed to be “between the subjective suspicions of a minister versus an evidence-based determination by a judge according to established rule of law”.
The IPA, which has close links to the Liberal party, has previously called for the abolition of the Human Rights Commission, arguing it did not adequately defend free speech.
But Breheny agreed with Triggs’s assessment that the major parties had passed a series of laws over at least the past 15 years that eroded rights and freedoms.
“I think unfortunately it is true that governments of both Labor and Liberal persuasion over a long period of time have been going down a path of removing individual liberties and basic fundamental legal rights and along the way undermining the rule of law,” he said.
Breheny cited laws that removed the right to silence, the presumption of innocence and natural justice as examples. “As a government in a liberal democracy you sign up to some principles and upholding the rule of law has to be the most basic.”
