Government and governance, Law, Arts, culture & society | Australia, The Pacific, The World

31 January 2019

No matter what the reasons, stripping an Australian of their citizenship tarnishes the integrity of the rule of law, Kim Rubenstein writes.

The purported stripping of Neil Prakash’s Australian citizenship activates all the concerns raised in 2015 when the ‘new’ citizenship-stripping provisions were introduced into the Australian Citizenship Act 2007.

More than three years later, the legislation has not been tested before the High Court of Australia, and – until a purported stripping is challenged in the Court – it is unclear whether the legislation is constitutionally valid.

Indeed, there is confusion and cloudiness around how one is stripped of citizenship under the legislation, which will be relevant to any review before the Court.

More on this: A recipe for statelessness?

As a liberal democratic country, Australia’s written Constitution is an example of the rule of law, no matter how disputed that concept is.

At the very least, the rule of law represents formal and procedural characteristics including the need for law to be clear and publicly accessible, and to enable individuals to identify prospectively the laws that govern their actions.

What is certain about the current legislation is the vital distinction between dual citizens and sole Australian citizens: if you are a sole Australian citizen then you do not automatically lose your Australian citizenship, no matter what you have done. This is because of Australia’s commitment to the Convention on the Reduction of Statelessness which influenced the drafting of the legislation.

Considering this, should it become obvious that Prakash was never a Fijian citizen or indeed lost his Fijian citizenship, then the ‘automatic’ provisions of the Act won’t apply to him, no matter what a Citizenship Loss Board says to the Minister responsible for the legislation, or vice versa.

And why was a Citizenship Loss Board established in the first place?

This is because the Act provides for the Minister to give written notice to a person when the Minister becomes aware of conduct that would, under the legislation, lead to the automatic loss of their Australian citizenship.

Former Immigration Minister Peter Dutton set up the Board to be advised on whether those conditions have been established. If the Board is wrong about that, a person may seek review of the basis on which that notice was given – either in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903.

It could well be that Prakash continues to be an Australian citizen, as a matter of law, because the conditions have not yet been established and a determination otherwise is challengeable from the moment that notice is given. He could continue to ‘act’ as an Australian citizen, but from the moment the government prevents him from relying on his citizenship, he can also go to the Court.

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The difficulties around asserting his status as an Australian citizen return us to the inherent problem with this legislation – the lack of clarity which undermines any concept of the rule of law.

Some people may not be sympathetic to Prakash’s position in light of his reported activities, but we should all be concerned about governments acting in a manner where it can declare events to have happened – even when they haven’t.

The current situation has a strong resemblance to Humpty Dumpty’s famous wordplay with Alice in Lewis Carroll’s Through the Looking Glass:

“‘When I use a word,’ Humpty Dumpty said… ‘it means just what I choose it to mean—neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’”

Surely, we want our master to be the Constitution, the rule of law, due process, openness, accountability, and confidence in the legal decision maker. The purported Prakash citizenship-stripping event fundamentally undermines all those foundations to our democratic wellbeing.

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