It is right that we should debate such a fundamental issue as the rights and obligations of Australian citizens and the circumstances under which people no longer enjoy those rights. Most of those who have entered the debate so far are lawyers who, quite rightly, take a black-letter law approach and stress the primacy of the court system as the ultimate arbiter of questions relating to the stripping of citizenship.
This article provides a good overview of what the rules are in other countries with similar problems. With the exception of the UK, the stripping of citizenship in these countries is done by judicial proceeding, thereby giving the government the benefit of an independent and public examination of evidence.
The problem with ministerial discretion, as may be allowed in the Australian legislation (the exact proposals are not clear yet), is that there will be accusations of a star chamber operating in Canberra. And in most cases, the public has a right to know about the activities of people who have effectively, if not legally, been accused of treasonous behaviour against the Commonwealth. There appears to be a strong case that any ministerial action to revoke citizenship should follow, not replace, judicial action in the majority of cases. There are also serious questions about the net effect of removing citizenship from an Australian who theoretically can be granted citizenship of another country.
While I respect and support the view that judicial action must precede ministerial decisions, there have to be exceptions.
Nowhere in the debate so far have I seen discussion regarding the peculiarities of our current situation. We are not simply talking about people joining a regional terrorist group that plots attacks against civilian targets, or people plotting attacks in Australia. The approach to those threats is rightly led by law enforcement. But in this case, we are talking about groups of Australians taking up arms as part of a self-styled religious-extremist army seeking to overthrow governments and against whom Australian forces are deployed. Allowing dual citizens to retain their citizenship while they fight overseas may actually hinder military operations against them.
As part of those military operations, individuals of sufficient importance are placed on a High Value Target List (HVTL), and when actionable intelligence becomes available they may be targeted. Australia faces difficulties, however, because of constraints that prohibit the passage of information on Australian citizens to third parties. Given we are in a coalition, any Australian on a HVTL is therefore protected to a degree by their citizenship. It is reasonable to expect that if he has another citizenship available to him, then his Australian citizenship should be stripped so that Australia can provide intelligence on him to the coalition, thus allowing that individual to be targeted.
It is also appropriate, on rare occasions, that this be an executive decision without reference to the judiciary. Intelligence has a limited shelf-life and the coalition of which we are a part should be given the best opportunity use intelligence against the enemy. Fighting a war only after a court's verdict is arrived at just doesn't work.
Ben Saul expressed the view in The Drum recently that 'A responsible government would not foist its terrorists onto other countries, but bring them home to face justice. Stripping citizenship...casts Australians adrift to keep killing overseas'. Saul never actually explains how the Australian Government is supposed to get into Raqqa, Mosul, Idlib or Ramadi to bring these Australians home to justice. And rather than casting them adrift to keep killing, stripping the citizenship of these terrorists may actually allow them to be killed, therefore stopping them from killing others. By contrast, not stripping them of citizenship could potentially have the effect Saul claims he wants to avoid.
Will the ability to strip dual citizens of Australian citizenship unleash the might of coalition air power against hapless teens from Sydney's west? One needs to understand that there are limited coalition assets and only relatively important people make the HVTL. If you are simply a 'humanitarian worker', 'assistant in an orphanage' or just a gunslinger, the coalition has more important people to target. That's not to say you won't be killed, but it will probably be in a random battle somewhere at the hands of Iraqi, Syrian or Kurdish forces or by other jihadis, and it will be because of who you were fighting with rather than because of who you were.
The issue of removing citizenship is important and shouldn't be taken lightly. But as part of that debate we should acknowledge the fact that the ADF is engaged in operations against against a violent non-state actor which Australians have, without coercion, traveled significant distances to join. Some of them have likely become sufficiently important to ISIS's military effort to make it onto the coalition's HVTL. If the minister has the ability to allow the coalition to gain a military advantage on the battlefield by stripping an Australian jihadi of their citizenship, he should be entrusted to use this executive power, albeit sparingly.
Outside of these relatively narrow parameters and when timeliness is not a military operational necessity, the minister should wait for the judiciary to weigh evidence and apportion guilt.
Photo by Flickr user Paul.