The recent terrorist attacks in Kuwait, Tunisia and France were horrific. A bomb set among worshippers, the shooting of beach-goers followed by a decapitation near Lyon: one condemns such atrocities and, hopes that, where possible, the perpetrators are brought to justice. Let’s be clear. Those who commit atrocities deserve to face justice.
But we cannot let our reaction to these horrors take away the precious safeguard of the law. For only within the law can we find liberty. It was, therefore, dismaying to hear the Australian Prime Minister using a commemorative event celebrating the 800th anniversary of sealing of Magna Carta to attempt to roll back the protection of the law. Magna Carta is a foundation stone in the edifice of liberty that is the rule of law. Yet, in his speech, Mr. Abbott argued that Australians engaging in terrorist acts against Australia should lose their Australian citizenship, if they were also citizens of another country. This is, to be fair, a weaker version of his original proposal. Mr. Abbott had envisioned stripping any Australian of citizenship, if the Immigration Minister thought they were a terrorist. Fortunately, cooler heads in Cabinet prevailed over that particular foolishness, but it is unclear whether the newer initiative will be stopped.
Australia’s would not be the first such law. Britain has had one for over a decade. Canada enacted such a law in 2014. It is obvious why the idea of ‘citizenship stripping’ (or denationalisation) is attractive. Citizenship defines a ‘we’. As ‘fellow citizens’, we make a common way of life. Terrorism represents quite certainly and quite deliberatively, an attack upon that life of way. The terrorist rejects us, and is now, indeed attacking us for being who we are. Therefore, what would be more natural than to say ‘No longer are you one of us’? Denationalisation puts that expression into action. Because the idea is superficially attractive, it is important to consider it closely.
Let’s begin with the law. The first problem is definition. What counts as “serious terrorist-related activities”? Would it only include acts such as the Sydney hostage crisis? Or, would it, as in Britain, apply to individuals deemed to be acting against national interests? Although the Canadian law has not been tested in court, the broad reach of ‘terrorist activity’ suggests that it might include a “logging blockade or a protest”. One legal expert suggests the Australian law might apply to anyone damaging government property. And who will decide what counts as terrorist-related activity? In Britain, and in the mooted Australian law, the power is lodged with a Minister of Crown – which really means denationalisation is a power exercised by bureaucrats.
As an administrative power, denationalisation raises serious questions about due process. As it is presently envisioned, the Australian law will apply retrospectively. It is bitter irony to note Mr Abbott’s attempt to justify his proposal by reference to the provision in Magna Carta that permits banishment or exile. Which indeed it does:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
In that word ‘exile’, Mr. Abbott found a peg to hang a point. But most people reading that clause are not looking for a list of permissible punishments. Instead, they read it as a declaration that law will rule. The clause’s fame rests upon its statement of principle: that there will be no punishment without a pubic legal process. By contrast, the Australian proposal states: “The rules of natural justice [will] not apply in relation to the [denationalisation] powers of the Minister”. The power will be exercised by a Minister, a party appointment. Let’s be clear. By no means is that bill a receipt for lawful judgement by one’s peers. In Britain today, the power of denationalisation is held by the Home Secretary whose decision can only be appealed to a secret commission at which the ‘accused’ are not allowed to represent themselves or know the evidence against them.
In light of Mr Abbott’s appeal to Magna Carta, I shall make three points. First, denationalization strips men and women of their rights. It is an attack on that guarantee of due process that serves as the strongest safeguard of liberty. As a power reposing in a Cabinet office, denationalisation represents an arbitrary power similar to the notorious and rightly repudiated powers of administrative punishment, the bills of attainder and lettres de cachet.
Second, we have no evidence that these laws are effective. It seems bizarre to think that those who the law alleges to address (hard-bitten terrorists) would be deterred by the loss of their Australian citizenship. Indeed, the law may make it more difficult to visit justice upon terrorists who would then no longer be citizens.
Third, and most importantly, the power will be abused. It is a popular claim that bad law only affects bad guys. The Snowden revelations conclusively demonstrate that is false. Denationalisation, like every other power of government, will be turned against those whom government officials deem to be their opponents. Examples of this are all too familiar. In Canada, a man who wrote a letter protesting shale gas fracking faced Anti-Terrorism charges. Here in New Zealand, surveillance powers justified as necessary to save us from the terrorists are instead used to monitor us. Indeed, a classic example of misapplication occurred in New Zealand, as the police apology for the Urewara raids recognised. The point is that these powers will be misused. For an example, examine the case of Madhi Hashi.
Denationalisation is an invidious power. It should not, as Mr Abbott suggests, become a ‘new normal’. We should resist its extension and, where it is exists, aim to roll it back. The status of the citizen is that of freedom. The law must stand as freedom’s bulwark, not connive at its decline.
Stephen Winter is Senior Lecturer in Politics and International Relations at the University of Auckland
The University of Auckland is hosting a public speaker series from July 6-10. Politicians, lawyers, judges, academics and community leaders will lead discussion as to the value of Magna Carta in 21st century New Zealand. Themes include Security and Privacy in the Digital Age, Migration and Refugees and the future of the Treaty of Waitangi (sometimes called the Māori Magna Carta). For information go to: https://magnacartanz.wordpress.com/