National security bureaucrats will be able to override the decision of Australian courts and strip Australians of their citizenship and detain them under the government’s bizarre, controversial citizenship-stripping bill, officials have admitted to Parliament’s intelligence committee.
And the government has made no effort to consult with other countries, including our closest allies, about whether they would accept Australian dual nationals who had been stripped of their citizenship for conduct linked directly or indirectly to a broad range of “terrorist” offences.
The admissions were made in a hearing of the Joint Committee on Intelligence and Security late yesterday afternoon involving the Secretary of the Department of Immigration, Mike Pezzullo, and a range of security officials from ASIO, the AFP (including Mike “Bali Nine” Phelan) and the much-criticised Australian Border Force.
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Under the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, dual nationals may be stripped of their citizenship through a complex process by which certain conduct — from fighting with another country or proscribed terrorist organisation through to vandalising Commonwealth property — is identified as having occurred and therefore been the basis for an “automatic” relinquishing of citizenship by the person responsible. The Minister for Immigration must then sign a notice that citizenship has been relinquished, although the target might not be told that his or her citizenship has been revoked. The process of identifying conduct that is said to have automatically led to the relinquishing of citizenship will be carried out in complete secrecy by a group of security bureaucrats, who will then in effect the minister to declare that a person has relinquished his or her citizenship.
However, the committee heard yesterday that this apparent lack of ministerial discretion — a hastily contrived mechanism to cover the constitutional and political problem of giving a minister an unreviewable power — is in effect a fiction. The minister must (in the words of the bill) sign a notice that citizenship has been lost, but might also instantly (or late) rescind that decision (in cases, for example, where it is considered prudent that a person retain their citizenship despite engaging in the relevant behaviour). Indeed, officials make recommend the rescission of citizenship and the retraction of that rescission in the same brief. The minister also has complete discretion about the timing of making the notice — meaning he or she could perpetually delay making the notice.
The minister thus has almost full discretion about the making of the notice to strip someone of their citizenship, despite legally having no discretion.
Officials yesterday also confirmed that it would be possible for a person to be stripped of citizenship and then detained under the Migration Act despite courts acquitting the person of the conduct that formed the basis for stripping their citizenship. Pressed on this point, bureaucrats said that their standard for determining if certain conduct had occurred would be a “high probability” — well short of the criminal standard of beyond reasonable doubt required by Australian courts. This process would be conducted entirely in secret by bureaucrats, with no accountability or review.
However, the bureaucrats insisted in their own defence, people detained under the Migration Act weren’t detained in quite the same way as under the criminal justice system. Recall that the department administering this legislation will be the one that deported Vivian Solon, detained Cornelia Rau and cancelled Muhamed Haneef’s visa, illegally in each case.
Pezzullo and the rest of the officials present tried to resist answering questions on the issue of their own process for deciding to strip someone of their citizenship as much as possible, repeatedly trying to sidetrack the committee by insisting that they would not be making any legal decisions that certain conduct had occurred. Labor’s Mark Dreyfus, however, refused to be distracted, and eventually drew admissions from officials on the process.
And in a remarkable admission, in response to a question from committee deputy chair, Labor’s Anthony Byrne, Pezzullo also said that no consultations had been undertaken with other countries about the impact of the bill, which might “dump” convicted or suspected terrorists on countries in which they held dual citizenship. The majority of Australian dual nationals come from the UK and New Zealand, two of our “Five Eyes” partners, with whom intelligence officials regularly consult, making the omission all the more extraordinary and raising the possibility that Australia might dump terrorists on its allies with no consultation.
As the committee learns more about this bill, the extraordinary, almost Kafkaesque nature of it becomes clearer and clearer — as does the extent to which it hands extraordinary power to Australia’s most secretive, unaccountable and, as history has shown, incompetent bureaucrats.