By Tom Allard
When Coalition strategists were plotting tactics as they prepared to introduce far-reaching amendments to the Citizenship Act this week, they would not have dared imagine they would be presented with the gift that was Zaky Mallah’s appearance on the ABC’s Q&A.Convicted of threatening Commonwealth officials with death and kidnapping but acquitted by a jury on terrorism charges more than a decade ago, Mallah is an inveterate attention-seeker.In recent videos, he has passionately supported Jabhat Al Nusra, a proscribed terrorist group affiliated with al-Qaeda. Earlier this year, he used social media to make threatening and pornographic slurs against two female News Corp columnists.
As Justice James Wood observed at his sentencing in 2005, “placing a person such as the prisoner into the public spotlight is … likely to encourage him to embark on even more outrageous and extravagant behaviour.”
That warning seemed prescient on Monday night when Mallah responded to junior minister Steve Ciobo’s blunt assertion that he would be delighted to kick him out of the country.
“The Liberals have just justified to many Australian Muslims in the community tonight to leave and go to Syria and join ISIL because of ministers like him,” said Mallah.
Mallah’s remarks sounded like a call to arms to join the barbaric terrorist group Islamic State, also known as ISIL or IS.
In fact they weren’t. Mallah has long denounced IS, which has been embroiled in an blood-soaked intra-jihadist rivalry with Al Nusra.
Rather, he was making a clumsy attempt to point out that the policies of the Abbott government are radicalising Islamic youth.
Prime Minister Tony Abbott responded by accusing the national broadcaster of “betraying” Australia, and demanded – in an unfortunate turn of phrase given IS’ embrace of beheadings – that “heads should roll”. A day later he launched a government inquiry into the selection of the “terrorist sympathiser” as a participant in Q&A.
In typically juvenile fashion, Mallah took to social media to tell Abbott to “Suck me off!”
The debased debate, and the government’s politically charged response, succeeded in diverting attention away from the substance of the changes to the Citizenship Act, perhaps the most significant alteration in the balance of power between the state and the individual since Federation.
Moreover, Abbott’s fulminating over the ABC, his questioning of its patriotism, was in line with the identity politics that are driving the citizenship changes.
Even giving a platform to someone who holds extremist views in a forum where they can – and were – challenged, Abbott reasons, is an example of unconscionable and un-Australian conduct.
“Whose side are you on?,” he asked the ABC.
Abbott is, of course, well aware Australians are outraged by the barbarism of Islamic State and like-minded groups. The proposal to strip dual nationals of their citizenship taps into that well of disgust and holds instinctive, understandable and deep appeal.
But the laws have a purpose other than articulating Australian values. They are the government’s latest and most punitive tool in the fight against terrorism.
The more important question is not whether banishing terrorists makes us feel good, but if it will help keep us safe and prevent the spread of violent extremism.
For many terrorism analysts, the proposed laws are dangerously counter-productive, not least because of the extraordinary range of offences targeted, and the fact that the mere suspicion of a breach of the law – rather than a conviction – can be enough to impose perhaps the most dramatic sanction a state can employ – permanent exile.
Curtin University’s Anne Aly – who was the only Australian outside government invited by the White House to address its countering violent extremism summit this year – says the government, is “doing exactly what Daesh [a derogatory Arabic term for Islamic State] want”.
“[IS’] version of terror tourism is that, ‘You come over here, because you’re not wanted in those kuffar [infidel] lands, you’re not welcome there … this is where you’ll find your space’,” she told Fairfax Media earlier this week.
“Let’s just hand them to IS on a plate.”
Subheaded the “Allegiance to Australia” bill, the draft amendments to the Citizenship Act revealed on Wednesday will see the Australian citizenship of dual nationals revoked automatically on three grounds.
The first applies to people who engage in terrorism, train with terrorists, help with recruiting or funding.
The second hits an individual who “fights for, or is in the service of” one of 20 declared terrorist organisation outside of Australia.
In both these cases, no conviction is required. Indeed, the loss of citizenship will occur immediately, at the instant the alleged offence has been perpetrated, even if authorities are unaware of it.
In reality, of course, it will be different. Australia’s security agencies will have to be alerted to the activity for the loss of citizenship to be practically applied. They will inform the minister for immigration, who is supposed to notify the individual at a time of the minister’s choosing.
The minister also has the sole discretion to reverse the revocation of citizenship.
It gives the minister, currently Peter Dutton, extraordinary powers. The same is true of Australia’s security agencies.
According to the draft bill, ASIO will not have to produce even a formal security assessment before advising there has been a breach warranting the loss of citizenship. A simple communication to the minister will be sufficient.
As the constitutional lawyer George Williams from the University of NSW noted this week, the powers are so extensive that they could apply to someone acquitted of terrorism offences in a trial.
Relying on intelligence advice to cancel citizenship is hugely problematic.
James Brown, who served as an Australian Army officer in Iraq and Afghanistan, said there were inherent perils with intelligence. More often than not, it was based on hearsay, he said.
“With intelligence, there’s a lot of room for error and pure deception [by informants] who are trying to knock off a competitor or pursuing feuds or personal grievances,” he said.
“Mistakes are made and it’s hard to track the information from the source to the end product.”
A huge range of activities are captured by the legislation. In the explanatory memorandum of the bill, “servicing” a terror group includes “providing medical support … providing money or goods, services and supplies”.
Even if the individual is unaware they are “servicing” a terrorist group, it may be no defence. In the case of financing a terrorist group, it is enough to be “reckless” in sending the money.
Red Cross workers tending to an injured jihadist could lose their citizenship. A person giving money to a relative or organisation who, unknown to them, is affiliated with a terrorist group could be deprived of Australian nationality.
The third ground for cancelling citizenship, again automatically, is when a dual national is convicted of terrorism and “certain other” offences.
The breadth of the offences captured by the legislation is staggering – from terrorism to treason, sabotaging defence equipment to damaging Commonwealth property.
Winnifred Louis, a psychologist at the University of Queensland who has studied radicalisation and terrorism since the September 11 attacks, says the key to counter-terrorism is targeting the same people that terrorist recruiters are preying upon – individuals engaged in the “complex” political, ethnic and religious issues that have long bedevilled the Middle East.
People with radical views who can be seduced into embracing the nihilistic vision of Islamic State’s caliphate, or – as is increasingly the case – youngsters in the grip of teenage rebellion with a thirst for military adventure and a twisted religiosity.
“By criminalising to a broad a range of activity and applying a very harsh penalty, these people will identify less as Australians and feel less supported by the state and see the state is less legitimate. That would be totally counter-productive,” she said.
In others words, they will be more inclined to be drawn into violent terrorism and joining groups like IS.
Concern about alienation in the Islamic community is not the preserve of feel-good leftists. ASIO’s director general Duncan Lewis told Fairfax Media last month that “social cohesion” was the crucial factor in combating extremism, a project he said could take a generation.
The government argues stripping citizenship will act as a deterrent and “reduce the possibility of a person engaging in acts or further acts that harm Australians or Australian interests”.
Given Australian jihadists offshore have had their passports taken from them, thus preventing their return home, the government already some tools to prevent hardened IS fighters from creating mayhem in Australia.
Foreign affairs sources advise there is no legal requirement to provide alternative travel documentation to those who have had their passport rescinded on national security grounds.
At any rate, by rejecting the possibility of bringing these fighters home to face prosecution, the Australian extremists will stay in Iraq and Syria, swelling the ranks of jihadists fighting against the Australian-backed coalition of forces.
Or perhaps they may return to the country with which they also hold citizenship, most likely Lebanon, Iraq or Turkey. All three countries are in the grip of a humanitarian and security crisis.
They are hardly best placed to deal with the violent extremists Australia has expelled.
The government reckons about 50 of the 120 Australians fighting in the Middle East with jihadist groups are dual nationals.
As for the rest of the country? No idea.
Australians are not required to inform the government if they also take another country’s citizenship.
It is likely there are hundreds of thousands of Australians who hold two nationalities.
If the amendments become law, they will be, in effect, second-class citizens, exposed to excommunication on the basis of an intelligence report.
Kim Rubenstein, a professor of law at the Australian National University and expert on citizenship, says the changes to the Citizenship Act remain vulnerable to a High Court challenge and mark a profound shift in what it means to be a citizen of Australia.
If the punishment of exile sounds medieval, that’s because it is.
Citizenship in a modern democratic nation represents a more equal relationship between the individual and the state compared to being “subject to the power of the Monarch from feudal times”, she says.
“This pushes us back to [being] more akin to subject status – subject to the whim of the executive to determine when our allegiance is no longer proven.”