New legislation giving judges the power to strip terrorists of their citizenship is being rushed through federal parliament this week as the government seeks to shore up its anti-terrorism regime in the wake of two recent High Court rulings.
Last month, convicted terrorist Abdul Nacer Benbrika won his High Court bid to have his citizenship restored after it was revoked by then Home Affairs Minister Peter Dutton in November 2020.
Benbrika, who was born in Algeria, was found guilty of leading a terror cell that plotted to blow up Australian landmarks and was sentenced to 15 years in prison.
The High Court ruled that stripping someone of their Australian citizenship was such an extreme punishment that it should be imposed by a judge, not a minister.
This followed a separate ruling in June 2022 in which a man suspected of joining Islamic State, who had never been convicted in an Australian court, also had his citizenship restored.
The two cases knocked out key planks of the Commonwealth’s anti-terrorism legislation, forcing the government to try to rectify the situation.
“The two High Court decisions on which we are basing this legislation make it abundantly clear that the High Court sees the revocation of citizenship as a punishment, and the only body that can punish is the court,” Home Affairs Minister Clare O’Neil told a press conference on Monday.
“It will do so through a sentencing model and, again, the High Court decision in November in the Benbrika case made it clear that the appropriate time for a court to consider this matter is through the sentencing process.”
Ms O’Neil took aim at her predecessor, Mr Dutton, in announcing the changes on Monday, arguing he had ignored advice at the time the former government pushed the citizenship legislation through parliament that it was legally shaky.
She said the new legislation would apply to a wider group of people than just suspected or convicted terrorists.
“What ASIO is telling us is that there are other national security issues that are of great concern to them, particularly things like foreign interference and espionage,” she said.
“Our laws will, for the first time, allow a court to revoke someone’s citizenship if they breach those particular laws.”
The minister said the legislation was “retrospective in a sense” as it would apply to conduct from 2015 onwards.
“However, in order to be constitutionally sound, the laws will be attached to convictions and referred to a court,” Ms O’Neil said.
“The minister will apply to a court to ask the court to consider deprivation of citizenship under a list of criteria that’s in the bill.
“Anyone who has already been convicted cannot legally be stripped of their citizenship and I’m confident that this is the only way we can do it within the constraints set by the High Court.”