Friday, June 27, 2014

THE AUSTRALIAN: Denying dual citizenship is a double-edged sword

BEN SAUL THE AUSTRALIAN JUNE 24, 2014


THE Abbott government is understandably alarmed by Australians fighting with Islamist groups in Iraq and Syria, which have committed savage war crimes. The Prime Minister has said he wants to prevent Australian fighters returning to Australia or to detain them to prevent “trained killers, who hate our way of life”, causing “mayhem”.

More than 30 passports have been cancelled on national secu­rity grounds in the past year. A number of people have been prosecuted for the federal crime of foreign incursion. The latest proposal is to strip dual nationals of Australian citizenship if they prejudice security.

This was suggested by the Immigration Minister in January, and supported this month by the outgoing Independent Monitor of National Security Legislation, Bret Walker QC. Britain is pursuing related reforms. At present, dual citizens can lose their citizenship only if convicted of a serious offence or if it was fraudulently obtained.

The proposal rests on two basic ideas: that excluding “terrorists” makes Australia safer and that dual nationals forfeit the privilege to be Australian by prejudicing our security. Both ideas are ­appealing on their own terms. Banishing terrorists from our shores can certainly prevent them causing mischief here. And, if we believe that our five million or so dual citizens must continuously earn their place among us by good behaviour, then it is reasonable to feel that fighting with terrorists lets down Team Australia.

Stripping citizenship is, however, unnecessary. And its costs outweigh its benefits. First, washing our hands of “our” terrorists simply shifts the threat they pose on to other countries, so they are free to cause “mayhem” elsewhere. Often these countries are less able to deal with terrorism precisely because they are affected by conflict and have weak law-­enforcement institutions, as in much of the Middle East.

No country has a right to shift its terrorists on to others. To the contrary, Australia has international legal obligations under UN Security Council resolutions to co-operate with other countries to prevent and punish terrorism. Our culture, too, produced these “terrorists”.

Stripping Australian nationality would be grossly irresponsible and would make the world more dangerous. It also makes Australia less safe, because those we exile remain free to plot terror attacks against us in countries where law enforcement cannot stop them — just as al-Qa’ida did in Afghanistan before 9/11. Second, stripping citizenship from dual nationals creates a new category of “second-class” citizens. The proposal would not affect people like me who are born as Australians and have no other nationality.

This is because Australia res­pects its international obligation not to make people “stateless” by depriving them of any nationality, and thereby depriving them of the protection of any government. The Abbott government has also rightly noted that the Australian Constitution would likely prevent this kind of denationalisation.

The proposal would mean that dual nationals would always have to “prove” themselves to be good, “loyal” citizens if they want to keep their citizenship. By contrast, other “homegrown” terrorists, born and bred in Australia with only one nationality, cannot “lose” citizenship through mis­behaviour. Stripping some Australians of citizenship, but not others, for security reasons is fundamentally divisive, unfair, and un-Australian. It makes the millions of dual nationals among us forever suspicious and vulnerable to losing their civic rights.

The very point of granting citizenship to foreigners is to recognise that “we” now accept them as one of us. Through it they become equal to every other Australian, born here or not, and they should not have to constantly show that they are more “loyal” than “we” who are locally born. Place of birth is, after all, just luck.

Fourth, stripping citizenship for threatening “national secu­rity” would go too far because the legal definition of security is too broad. Not every Australian fighting in Syria is killing civilians or committing terrorism.

Some may only be fighting ­militarily against, for instance, ­Assad’s repressive army. This is not to suggest Australians should fight there. But nor should they lose citizenship for doing so. Experience fighting overseas seldom translates into later violence against Australians in Australia.

Finally, stripping citizenship is unnecessary because Australia has enough laws to deal with the threats. Since 9/11, the Australian parliament has been among the most hyperactive counter-terrorism lawmakers on the planet.

Australians who fight overseas can be prosecuted for innumerable offences, including terrorism, war crimes, crimes against hum­anity and foreign incursion. Prosecution takes terrorists off the streets altogether, and does not ­irresponsibly shunt them on to other countries. It also ensures ­decisions are made based on evidence with judicial safeguards. Stripping citizenship based on untested intelligence about what a person is doing overseas risks miscarriages of justice.

Instead of prosecution, federal police can apply for control orders to prevent terrorism by restricting a person’s freedoms. In emergencies, preventive police detention is available, and ASIO has questioning and detention powers. Other powers range from surveillance to passport cancellation.

Governments are often tempted to reach for new laws when ­security is threatened. Intelligence agencies never say they have enough power or stop asking for more. Giving more power to the government, and making citizenship more provisional, is not the answer.

The answer lies in ­better intelligence and action to prevent people leaving, and in bringing them home to prosecute them.

Ben Saul is professor of international law at the University of Sydney and a global counter-terrorism law expert.