Citizenship expert, Kim Rubenstein, questions PM's claim potential terrorists given 'benefit of the doubt'

Updated

An expert in citizenship law has questioned the Prime Minister's claims that Australian authorities have been too generous in giving potential terrorists the "benefit of the doubt" in citizenship and residency decisions.

Tony Abbott made the comments in a video message on Sunday as he foreshadowed what he will be pitching as a major national security statement next week.

But Kim Rubenstein, the director of the centre for international and public law at the Australian National University, said the law did not leave much scope for "the benefit of the doubt".

And she said that any move to strip dual citizens of their Australian nationality could end up in the High Court.

"This notion of the 'benefit of the doubt' doesn't sit well with the current legislation, it doesn't represent it well," Professor Rubenstein told ABC's World Today.

"There isn't a lot of discretion that's left with individual decision makers. In fact, from the 1980s onwards, we've had a very highly codified migration framework for residency, with very detailed regulations as to who can and can't get residence.

"There's very little benefit of the doubt involved any longer, and in fact the whole purpose of amending the migration act was to reduce the discretion for judges in those sorts of areas.

"And as for citizenship itself, since 1948 there were very clear criteria set out in the act as to who is and isn't a citizen, very detailed criteria that people have to satisfy, including character provisions."

Professor Rubenstein said any changes to citizenship legislation would be limited by constitutional restrictions.

"Parliament has the power to amend legislation. In other countries there have been amendments that include stripping dual citizens of their citizenship," she said.

"There are constitutional restrictions, though, that one would have to look at in relation to those issues, both in terms of the stripping of citizenship and also in relation to the regulation of citizens' re-entry into Australia.

"Our constitution doesn't have explicit statements in relation to citizenship, but there has certainly been arguments put over the years, nothing yet clarified in a case, and we may see this being a framework where these matters do come before the High Court.

"But it's unclear as to the extent to which the Commonwealth in its legislation can strip people of their membership of the Australian community."

Professor Rubenstein said using citizenship as a frame to deal with terrorism was inappropriate, and would cause division among Australians.

"It's not that terrorism doesn't need to be dealt with - of course it does - but citizenship as a frame is an inappropriate frame for doing so," she said.

"I think I join with many policy analysts and academics around the world who see this as a really unhelpful way of dealing with terrorism.

"Citizenship really is a secure status that should be affirmed to create a sense of national cohesion and inclusion. But what governments are doing is actually the opposite. They're using citizenship as a frame for creating the 'other' within our own society, and creating more division.

"And I think that is concerning. The criminal framework is a much better framework for pursuing these issues."

Topics: defence-and-national-security, terrorism, community-and-society, government-and-politics, federal-government, abbott-tony, australia

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