Exclusive : ALP indicates it may part ways with government on national security after receiving expert advice

This article is more than 1 year old

This article is more than 1 year old

Labor has released advice warning the government bill to lower the bar for stripping terrorists of Australian citizenship is unconstitutional as it prepares to dissent on the usually bipartisan security committee.

The advice, written by Victorian QC Peter Hanks, said there is a “reasonable argument” granting home affairs minister Peter Dutton the power to revoke citizenship merely on his subjective belief the person is a dual national is not supported by the constitution.

The release of the advice comes after the shadow foreign affairs minister, Penny Wong, told caucus on Monday night Labor is likely to issue a dissenting report on the bill on the parliamentary joint committee on intelligence and security, a first for them in this term of opposition.

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As parliament resumes on Tuesday, the Coalition has focused on national security, picking up where it left off in 2018 when Labor passed the encryption bill on the final day of sittings.

On Monday Scott Morrison argued that medical evacuations are a risk to border protection and the Coalition pressure produced new Labor qualifications to its support for the crossbench bill, which will come to a vote on Tuesday.

But on the strengthening citizenship loss provisions bill, Labor has so far resisted Coalition pressure, citing concerns it could render people stateless and is unconstitutional.

Shadow attorney general Mark Dreyfus has also targeted Dutton for the “absolutely incompetent” handling of the cancellation of Isis fighter Neil Prakash’s citizenship without checking his Fijian citizenship with Fiji.

The advice, seen by Guardian Australia, argues the commonwealth has the power to make laws for “naturalisation and aliens” but not to define alien so broadly as to give it power over “persons who could not possibly answer the description of aliens”.

The bill says the minister will only need to be “reasonably satisfied” that a person would have another citizenship before revoking their Australian citizenship. The current law requires they be a dual citizen and the decision can be challenged in court if this is not in fact the case.

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Hanks said the bill “operates on people who are (at least at present) Australian citizens” and are therefore unlikely to meet the definition of alien in the constitution.

Hanks said there was also a “reasonable argument” that giving the minister power to revoke citizenship breaches the separation of executive and judicial power because that is in effect “a form of punishment”.

He said there is a “not remote” prospect the high court may find loss of citizenship is a punitive step as it is a form of “civil death”, although he noted the court had upheld the power to revoke visas and the argument was “possibly not as strong” as the first.

“On balance I believe that there is a substantial risk that the proposed [section 35A] would be found to offend chapter III of the constitution.”

Hanks also noted it was arguable the bill prevents a person voting in federal elections, although that was likely to require an extension of the current law to succeed.

Dreyfus said the government “cannot ignore the advice from eminent constitutional lawyer Peter Hanks” and similar concerns expressed by academics Kim Rubenstein and George Williams.

In evidence in January, Williams warned the committee that the amendment could cause the high court to strike down the existing citizenship stripping powers, which have been in effect since 2015.

“Labor is focused on making strong national security laws that make Australians safer – not giving terrorists a win in the highest court in our land,” Dreyfus said.

“The government has not sought any assurances, even from its own solicitor-general, that this bill is constitutional. It’s failed at even basic due diligence.”

In its submission, the home affairs department revealed the new powers are likely to bring just 18 people into the frame for potential loss of citizenship but labelled the powers a “key counter-terrorism tool”.