Time to shed some light on all the shouting in the dark about Australian citizenship, and who loses it at the direction of whom. Photograph: Michaela Rehle/Reuters
Nevertheless, the prime minister, Tony Abbott, asserts both those propositions when implying that the opposition is weak on terrorists unless it backs the “principle” of his yet-to-be-announced plan.
“We know, instinctively, that anyone who raises a gun or a knife to an Australian because of who we are has utterly forfeited any right to be considered one of us. That is what we believe. What do you believe? Do you want dual-national citizens to keep their citizenship?” he asked the opposition leader, Bill Shorten, during parliamentary question time.
Well, to start with, policy decisions are much better based on law rather than instinct.
There is no law, but what the government has said (and leaked) suggests the plan involves a minister – probably the immigration minister – revoking citizenship of foreign fighters on the basis of intelligence information, and for that decision to be subject to some kind of judicial review. It appears this law is aimed at keeping out of Australia people against whom there is insufficient evidence to lay charges under last year’s terrorism act. But we don’t know what evidence would be required, or who would review it.
Nor do we know who would be caught by it. Some of the backbenchers being encouraged by Abbott to mount a public campaign for wider measures that were blocked by cabinet – and instead inserted into the “discussion paper” – reckon it could cover doctors or nurses, but some say only fighters. Last year’s terrorism laws cover anyone fighting for any of the complex web of subgroups in the Syrian civil war, no matter which group they are fighting with. If that is the benchmark then those fighting with the Kurdish peshmerga could lose citizenship, even though they are fighting against Isis, not with it.
And we don’t know whether it would be constitutional. Greg Craven, vice-chancellor of the Australian Catholic University, reckons giving a minister, rather than the courts, the power to impose the penalty is “irredeemably unconstitutional … [and] mocks the separation of powers”. He says it would be “swatted down like a bug by the high court”.
Another constitutional law expert, George Williams, told Guardian Australia he was less willing to make a definitive prediction about what the high court would say, but says there would be “significant constitutional problems with giving the decision-making power to a minister”.
“Ministers cannot usurp judicial powers … What they are proposing runs counter to basic and fundamental principles of the rule of law and the separation of powers. It is proposing that a minister be given powers that usurp the role of the courts.
“Just because it might be hard to get enough evidence for a conviction does not mean you can work around the rule of law. I can’t see how they can do this if they bypass the courts.”
Despite deep concerns about all these questions within Labor, Shorten – apparently concerned that he would indeed look weak on terrorism – did his best on Thursday to suggest Labor was on board, without quite saying so.
Labor gave “in principle support” for stripping dual citizens of their citizenship, he said, but added “we’ve got concerns of ministers just having those sort of powers without a court process, you know, that’s a question mark, that’s a new development”. That would also appear to be the nub of the government policy to which he had just offered “in principle support”.
The only person really making sense this week was Malcolm Turnbull, the communications minister, who made the radical suggestion that the citizenship debate be guided by the rule of law, rather than “bravado”.
“Honest people, knowledgeable people, really well-informed people, can have very different views about what the right measures are for national security, and can have very different views about the right balance between, say, citizenship and national security,” he said. “It’s not good enough that laws simply be tough. This is not a sort of bravado issue. They’ve got to be the right laws; you’ve got to get the measure right.”
And that raises complicated implementation questions, which cannot be neatly summarised into the ridiculous binary of being for or against the perpetrators of beheadings. National security is too important for that kind of cartoon analysis. So is the democratic system we are fighting to protect.