In this post Associate Professor John Gava examines the question: should we ever strip any Australian citizen of their citizenship?
The discussion around the Federal government’s desire to strip certain Australians of their Australian citizenship has concentrated on means – how this can be done – but not ends – should we even be thinking about stripping anyone of their citizenship. We are so caught up in technical legal questions about who is best placed to remove citizenship from (at this stage) dual nationals, that we ignore the fundamental issue: should we ever strip any Australian citizen of their citizenship?
The answer for a confident, mature and sophisticated Australia should be a resounding no.
In a world of nation states the most basic and important human right is the right to a country to call home. Our High Court recognized this early in our history in the case of Potter v Minahan (1908) 7 CLR 277 where the judges emphasized that everyone has a right to an abode somewhere. Australian citizenship should not be seen as the gift of any government or politician but rather as a right belonging to a person and not revocable at the will of the government of the day.
We would look askance at a couple that had children but then decided to “return” them or dump them like an unwanted pet. Well, I think the same criticism applies to a country that decides that one of its own is no longer wanted. Rather than seeing citizenship as a conditional gift, revocable at the whim of the grantor, we should see citizenship as an unconditional and irrevocable acceptance into the Australian community. Isn’t it a sign of a mature country that we can say to the world that we are willing to accept our bad apples and deal with them rather than petulantly send them away, if we can, to become another country’s problem? What does it say about us that we are too scared to deal with our own problem people?
If an Australian commits a crime in Australia we have the traditional criminal process to dispense justice. If that crime is committed abroad the traditional criminal process is still applicable if that person comes within our jurisdiction, either voluntarily or through extradition.
But we are told that some dangerous or “guilty” people may not be amenable to the criminal process and we need a mechanism to either keep them out of Australia or to remove them if they are here. I would hope that there are enough supporters of freedom across the political spectrum from left to right to rebel against such soaring arrogance. We have courts because our constitutional history has taught us that the executive, be it a monarchy or an elected government, is not to be trusted with deciding whether an individual should be free or not. We should never allow the government of the day to expel a citizen just because it thinks that he or she might be dangerous.
What if a citizen fights for a foreign force against Australia? Well, if the government of the day makes that illegal, as is the case today, it is our duty to deal with that person, and not ship them off somewhere else just because we can. Do we really want to say to the world that we lack the confidence to deal with those who offend against the law or, in other words, that Australia can only deal with successful people and not those who are bad or dangerous?
After the Second World War Australia accepted many thousands of migrants from countries that it had fought against, countries that had represented a frightening threat to world civilization. Not only did we accept them: it is now agreed that these immigrants made an incalculable contribution to Australia. But today, apparently, we want to tell the world that we can’t handle a few thugs, representing an ugly but hardly world-threatening terrorist organization.
We are bigger than that. As Greg Craven, the eminent conservative constitutional commentator, has argued, we need a narrative to explain what Australia is and what it stands for. Do we want to send a signal to the world that some nasty people scare us? Or do we want to show the world that we are confident that we can deal with criminals, be they terrorists or wife bashers or anything else – without betraying our core values? We should be showing the rest of the world, including our friends, that we are confident enough in out institutions, our commitment to the rule of law and in our way of life to deal with our troublemakers, both trivial and serious.
Or to put it in Tony Abbott’s terms, once you are part of Team Australia, you remain one of us, whether you are a Nobel prize winner or a cheap and nasty thug terrorizing children, women and men here or overseas.