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ELIZABETH:

From Schwartz Media. I’m Elizabeth Kulas. This is 7am.

As the government produces new legislation to temporarily ban foreign fighters from returning to Australia, there is growing concern over whether existing citizenship legislation might be unconstitutional.

Karen Middleton on why a High Court challenge isn’t likely anytime soon.

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ELIZABETH:

Karen, the Australian government has been trying to figure out how to deal with returning foreign fighters for years now. Where did that start?

KAREN:

It goes back to 2015 when the Abbott government introduced the Australian Citizenship Amendment Allegiance to Australia Bill, and it does go to the question of allegiance and loyalty to Australia, and actions that might be against Australia's interests.

ELIZABETH:

Karen Middleton is Chief Political Correspondent at The Saturday Paper.

KAREN:

It was because a number of Australians had travelled to places like Syria and Iraq to fight for organisations that are deemed to be terrorist organisations, including with the group that we call Islamic State or Daesh.

The bill was controversial because it was effectively stripping people of Australian citizenship. Now there are provisions to do that under Australian law and it's widely accepted that there need to be provisions to protect Australia, but the processes are the key and the existing law, prior to that, always said that you had to have been convicted of an offence and they had to have been a court involved. Now the changes that were made in 2015 meant that you could lose your citizenship automatically, just by going to certain parts of the world that were declared hotspots of terrorism or by joining one of those groups or being a supporter or a sympathiser of them. And it's the automatic nature of that hat's been a problem.

The Parliamentary Joint Committee on Intelligence and Security, which is the very powerful committee that has a legislated role in scrutinising all of these laws, it had a look at that, made some recommended changes and that has been law, but that is now under examination again, because there's some concerns about whether it's constitutional and a number of other potential problems with the process.

ELIZABETH:

And Karen this allegiance to Australia Bill covers dual citizens only, is that right?

KAREN:

It does. It only covers dual citizens and the key here is that under international law, countries are not allowed to make people stateless. So if a citizen of your country only has your own country's citizenship, you can't strip it and leave them with literally nowhere to go. But dual citizens are able to be affected in this way.

ELIZABETH:

And how many people have been affected by this law since it was passed in 2015?

KAREN:

Well the Home Affairs Minister Peter Dutton says about 230 Australians have travelled to Syria and Iraq to fight for these terrorist organisations since about 2012 and that there are about 80 Australians who are still fighting over there. One of the best known cases is that of Neil Prakash...

Archival tape — Unidentified woman 1:

“He was the Australian poster boy for Islamic State, a recruiter at the centre of bizarre propaganda videos enlisting others to join their army of hate.”

Archival tape —Neil Prakash:

“My beloved brothers in Islam and Australia, now is the time to rise, to wake up.”

Archival tape — Unidentified woman 1:

“And now the government says, he’s lost the right to call Australia home.”

KAREN:

He is the only one that the government has named as having had their citizenship stripped under these provisions. The government said that he was a dual citizen with Fiji and that on that basis his citizenship had been automatically revoked. But the Fijian Government said hang on a minute. He's actually not one of ours.

Archival tape — Unidentified man 1:

“Did the Fijians dispute that?”

Archival tape — Peter Dutton:

“Well, again, I’m not going into that but I’m not aware that there was any dispute of that. We don’t want terrorists back at our country. About 100 people have gone to be foreign fighters have been killed in the Middle East and that’s a good thing because they’re not returning to harm or to kill Australians.”

KAREN:

So this leaves us in an interesting situation. He is now it seems in Turkey and the government is trying to extradite him but the Turkish government is resisting that. There are 12 people that the government of Australia says it is aware of that have been affected by this automatic loss of citizenship and he is the only one that they've named.

ELIZABETH:

And Australia’s saying we are not under any, sort of, requirement to check with these foreign governments before cancelling their Australian citizenship?

KAREN:

That's right. And that's another interesting element here. The government did not check with the government of Fiji first up. They do their own work studying other country's laws and then they make a determination, and that determination (bearing in mind it happens automatically under law), is made by a sort of slightly secretive committee called the Citizenship Loss Board that operates through the home affairs department. It's got representatives of the security agencies and government departments on it and they gather up the evidence about individuals they know are fighting for these terrorist organisations overseas and they study it and then they make a determination.

Archival tape — Unidentified woman 1:

“As the sun rose, the police moved in… busting through doors in a series of raids across Sydney...”

Archival tape — Unidentified man 1:

“A young Greenacre man is behind bars, accused of plotting Islamic State inspired terrorist attacks.”

ELIZABETH:

And Karen, why is this back in the news?

KAREN:

Well the issue of foreign fighters is back in the news because we've seen the arrest of three men in Sydney who are accused of plotting terrorist attacks in Australia one of those had been in Lebanon, and had come back to Australia. Now, what has been in the news specifically has been a separate piece of legislation about banning Australian citizens from coming back home temporarily.

This legislation relates not just to dual citizens but also to people who are just Australian citizens. So whereas the citizenship changes have been law for four years this is a new proposal.

ELIZABETH:

So we're talking about this new legislation that's being introduced relating to temporary bans. In a little more detail what does that legislation propose?

KAREN:

Well it would place a two year ban on Australian citizens coming back to Australia who had been involved in the sorts of activities that we've discussed: fighting for a foreign organisation that's related to terrorists or being involved in one of those areas where terrorists have been operating. Those people would also not necessarily know they were subject to that ban, but once they were notified, they could apply for a return permit and then the government would place conditions on their return. If it approved the return, it would then place conditions on their activities and movements when they're back in Australia. The government says it buys them some time to get things in place to monitor these kinds of people because a lot of them they believe are dangerous and put Australia at risk. But there have been people who've raised concerns about this constitutionally as well, whether you can actually stop an Australian from coming back to the country of their citizenship. All of these are questions that have legal scholars very exercised.

ELIZABETH:

We’ll be right back.

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ELIZABETH:

The government has new legislation to implement on citizenship and it would essentially involve temporary bans on Australian citizens seeking to return to Australia in cases where they had been involved in potential terrorist activity. Karen, what is the legality of this. I mean could create issues of temporary statelessness?

KAREN:

Well that's the concern of some of the experts who've looked at both this and the Citizenship Act. Both of those pieces of legislation incidentally relate to people as young as 14. So some of the concerns relate to international conventions covering children and children's rights and whether or not we're in breach of those, in both cases.
And there are people who are also arguing that this is an untested uncharted area.

Archival tape — Unidentified man 1:

“From a legal perspective, How radical is this idea?”

Archival tape — Kim Rubenstein:

“Well this would be an entirely new step in terms of the rights of Australian citizens. It’s not that it would necessarily make them stateless as a matter of law, but it would deprive them of fundamental citizenship rights and the real question is whether in fact that is constitutionally possible.”

KAREN:

Kim Rubenstein who's a Professor of Law and a Public Policy Fellow at the Australian National University and an acknowledged expert on citizenship says she's very concerned that none of this has been tested in a court, so it's very unclear whether in fact either the existing citizenship law or this proposed temporary ban legislation is even legal.

Archival tape — Kim Rubenstein:

“There is also an international legal consequence here because it would be a breach of the international covenant on civil and political rights which says that it is the right of a citizen to enter their own country. So it is quite extreme.”

ELIZABETH:

So Karen is Professor Rubenstein saying that Australia may already be acting unlawfully with this legislation?

KAREN:

Yes and those concerns are echoed by other organisations like the Law Council of Australia and human rights commission that this existing citizenship law might be unconstitutional, might therefore be illegal because it's in breach of Australia's constitution. And equally, she's got similar concerns about the temporary exclusions ban, because she says she believes there are implied rights for Australians to be able to come back to their country of citizenship, in the case of the temporary bans. And she is also concerned about the processes involved in the citizenship law and that there might be constitutional questions there.

We don't have a bill of rights in this country, so our constitutional scholars have to go back to that document, look at the powers that exist under that, like the external affairs power, the defence power, and the aliens power, which has a power to make laws that affect people from other countries and work out whether what they're doing in other pieces of legislation align with that. So these scholars are saying that they have concerns that existing law and proposed law might not do that.

ELIZABETH:

Legislation like this as you've said usually goes through that parliamentary joint committee. What detail has the committee given around its view of this temporary ban and its legality?

KAREN:

This is a committee that's actually quite conservative in its approach to national security. It's a committee that’s only involves Liberal and Labor members. It doesn't involve the minor parties at all. It's operates in a very bipartisan way. Some people say too bipartisan actually, and that there should be some more contestability and other voices on the committee. Its report made nineteen recommendations, seventeen of those involved changes it said were important to make the law better. One of them was that the government should undertake to get legal advice from the solicitor general that confirms that this is not constitutionally problematic. And the last one was that if those things were all done you should pass it.

Now the government does take the advice of this committee very seriously. It's, as I said, got a legislated role and most of the time they accept all the recommendations but this time they haven't really accepted all of those recommendations. There are a number of things that they decided they didn't want to accept. The minister described it as substantially accepting those recommendations and that's going to be controversial as this bill goes forward.

ELIZABETH:

And Karen do you have any sense... Is this likely to be successful when it gets put to parliament again?

KAREN:

Well that's one of the interesting questions because they haven't accepted all of the recommendations. For example, the committee recommended that they should take into account the impact on the person who was having the ban applied to them temporarily. The government said they wouldn't do that. They would only do that when considering the application for the return permit, not when considering whether or not to put the ban on in the first place. So that could be an important distinction and it might be something that might get the Labor Opposition upset or other people with expertise in counter-terrorism.

ELIZABETH:

And then constitutional matters like these are usually settled in the High Court, of course. Is the government worried about a challenge of that nature?

KAREN:

Well I think they would be concerned about the prospects of a constitutional challenge to both the existing citizenship law and a proposed temporary exclusions. So the officials from the Department of Home Affairs do acknowledge there's a risk that it's unconstitutional but they say it's a small risk. And they say it's a risk that can be mitigated. The issue though of course is that it's going to be very hard to run any kind of test case in both of these cases because we're talking about people affected who are overseas, operating often in secret with shadowy organisations. So it'll be hard for them to organise a constitutional challenge and it might be a pretty difficult PR exercise for them too. So I think the government is aware of this that even though there might be some questions about constitutionality the likelihood of some kind of challenge is pretty limited at this point.

ELIZABETH:

And Karen where does this put us in the minds of especially our security partners internationally? I mean, I know there's laws like this in the UK but how some of our other partners like the US responded to legislation like this?

KAREN:

Well that's right. The temporary exclusions ban is based on a UK model that is operating there. But in terms of the citizenship law there are concerns about the implications of that. Even the United States has raised concerns about countries seeking to effectively hand off the problem. The US Secretary of State Mike Pompeo said just a few weeks ago that countries that have people acting as foreign fighters in these terrorist organisations should take responsibility for them, should seek to bring them back to their own countries and prosecute them.

Archival tape — Mike Pompeo:

“...with respect to foreign fighters, yes, we have an expectation that every country will work to take back their foreign fighters and continue to hold those foreign fighters. We think that’s essential…”

KAREN:

And it's possible when you are stripping dual citizens of their citizenship that they might not be able to be prosecuted or it might be more difficult. And indeed there are some people arguing on that basis that you're actually increasing the risk of attacks not reducing them because you're provoking people and maybe making them more desperate in some situations. So it's not by any means universally accepted that revoking citizenship is the best way to go.

ELIZABETH:

I mean you can see the argument that Australia is potentially protecting ourselves by making our citizens kind of a global problem or someone else's problem...

KAREN:

Yeah it's a terrible dilemma for governments because their main job is to keep Australians safe and they have to take steps to make sure that they do that and they have to balance human rights, and people's individual rights against those concerns about keeping Australians safe.

ELIZABETH:

Karen thank you so much.

KAREN

Thanks very much Elizabeth.

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ELIZABETH:

Elsewhere in the news:

The Sydney Morning Herald is reporting that earlier this year, the Australian Federal Police demanded that Qantas provide details of a senior ABC's journalist’s private travel. The request is part of the AFP's ongoing investigation into the publishing of a series of secret government documents that contain allegations of misconduct by Australian troops serving in Afghanistan. This is the same investigation that conducted raids on the ABC's Sydney offices last month. The Qantas request may contradict statements made by the Attorney General, Christian Porter last month, who said that there was "absolutely no suggestion that any journalist is the subject of the present investigations."

And in the US, Mexican drug boss Joaquin El Chapo Guzman has been ordered by federal prosecutors to repay more than US$12.5 billion. The sum reflects his earnings from the early 1990s through to his arrest in 2016. It’s not clear how much prosecutors will be able to recoup, Guzman is noted in the forfeiture documents to have been a skilled money launderer. His full sentencing is scheduled to take place in Brooklyn later this month.

This is 7am. I’m Elizabeth Kulas. See you Wednesday.

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