Photo credits: James William Edmund.

Here be dragons: modern banishment and foreign fighters

There is no doubting the single-minded determination of Australia’s Liberal government to be seen as the party of national security. Amidst the distinctive atmospherics of an approaching election, the past few months have witnessed Prime Minister Tony Abbott and his ministers, following in the footsteps of the government of the United Kingdom, launch into full-throated advocacy of laws designed to cancel the citizenship of Australian dual nationals fighting for or supporting the Islamic State (IS).

Justifying the need for such laws in order to effectively tackle the threat of foreign fighters, the Australian Prime Minister has emphatically warned that the “Death Cult” of IS “is coming after us all.” “Fighting for a terrorist group at war with Australia is the modern form of treason”, reasoned Abbott in a recent speech, “and those who have left our country to fight against us may require a modern form of banishment.”

The proposed amendment to section 33AA of the Australian Citizenship Act, parenthetically labelled “Allegiance to Australia,” will empower the Immigration Minister to determine whether an individual has automatically relinquished their Australian citizenship by committing acts of terrorism, or by supporting, recruiting for, directing, or financing terrorist organisations.

While many have decried the damage to democratic freedoms that will almost inevitably result from the amendment’s passage, measures like the “Allegiance to Australia” amendment are far from unprecedented. In fact, the proposed measure’s provisions for the revocation of citizenship actually reinforce long-standing concerns over existing Criminal Code proscription provisions that grant the Attorney-General enormous power to proscribe terrorist organisations.

Proscription, in this context, refers to the power to outlaw particular organisations from a specific territory. Such powers have a long history, but are currently widely used by contemporary states in their fight against terrorist groups or other perceived threats.

Beyond the very real challenge of accurately identifying such groups and their members, however, the use of proscription as a form of counter-terrorism has been criticised on a number of grounds. These include its questionable efficacy in deterring threats, its implications for rights of expression, association and even resistance, and the tendency for proscription decisions to become bound up with other political agendas.

To this extent, the proposed measures to revoke citizenship align with major prevailing concerns over both the design and application of proscription powers. These concerns include, in particular, the extraordinary discretion allotted to the Executive to determine who is/is not a terrorist; the ability to shrug off any parliamentary or judicial scrutiny of how the Executive deploys its powers; and the reinforcement of the idea that there are only two options from which to choose – the Government or the Terrorist.

Under the Criminal Code, the Attorney-General has generous discretion to decide what does and does not count as a terrorist organisation. Drawing on secret intelligence, he can determine when and against whom proscription is initiated. Moreover, he does so via a process that denies elected officials access to the intelligence upon which the proscription is based, while demanding the (blind) assent of Parliament.

The ambition to avoid unwanted scrutiny by the judiciary is explicit in the current proposals. In a lecture marking the 800th anniversary of the Magna Carta, Tony Abbott offered this candid explanation for sidestepping the courts:

“On the standard rules of evidence, without a confession, securing a conviction is hardly straight-forward, let alone for crimes committed offshore in ungoverned space. Bringing foreign fighters back to face trial in Australia risks leaving them free on our streets rather than in our gaols”.

In practice, this will mean that intelligence agencies will be responsible for drawing up short-lists of individuals deemed, by their alleged actions, to have breached the law and thereby deserve banishment. There will be no right of appeal. It is a chilly prospect, and one made icier by the extraordinary breadth of offences that fall within the scope of the amendment: alongside individuals directly connected to terrorism, those susceptible to the amendment’s provisions include whistle-blowers, journalists, and anyone who damages Commonwealth property. Astonishingly, even children of terror suspects face the prospect of losing their citizenship.

The same vague and simplistic construction of “our” national values versus ‘their’ terrorist evils continues to be a persistent feature of Parliamentary proscription debates. Opposition in Australia to the proposed citizenship revocation measures has been muted by a government that castigates its critics for seeking to ‘lay out a red carpet’ for terrorists. The UK Home Secretary Theresa May used similar tactics during the introduction of laws permitting wide-ranging surveillance in her country (the so-called ‘Snooper’s Charter’), arguing that “criminals, terrorists and paedophiles will want MPs to vote against this bill… It’s a question of whose side you’re on.” As with the Australian case, we see the same disingenuously black-and-white ultimatum that “you are with us or with the terrorists]”.

Perhaps in an effort to elevate the advocacy of “modern banishment” to more philosophical plains, Tony Abbott has appealed to Cicero’s maxim that “The safety of the people is the supreme law.” Yet, we should wonder if Cicero would feel queasy at the prospect of his words being used to support banishment: It was proscription at the hands of the Roman dictator Sulla that led to Cicero’s execution.

About Tim Legrand

Tim Legrand

Tim Legrand is a Lecturer in the National Security College at the Australian National University. His research is concerned with security governance, transgovernmental policy networks and policy transfer.

Tim Legrand @ National Security College

About Lee Jarvis

Lee Jarvis

Lee Jarvis is a Reader in International Security at the University of East Anglia, UK. His recent books include Anti-Terrorism, Citizenship and Security (with Michael Lister) , Security: A Critical Introduction (with Jack Holland) and Terrorism Online: Politics, Law and Technology (with Stuart Macdonald and Tom Chen).

Lee Jarvis @ University of East Anglia

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