Prime minister confirms details of legislation to strip Australian citizenship from foreign fighters won’t be presented to cabinet, while Labor hardens its stance against revocation without court involvement

Tony Abbott has accused the ALP of “rolling out the red carpet” for terrorists to come back to Australia because it is questioning whether a decision to strip citizenship from foreign fighters should be made by a minister without the involvement of the courts.



The political attack comes as it was revealed the controversial legislation to revoke the citizenship of Australians fighting with Islamic State will not be considered by federal cabinet because the government says it was already “signed off” in the previous heavily-leaked and divisive cabinet discussion that was not informed by any documentation, cabinet submission or legal advice.



“The government has made an absolutely clear decision that we are stripping the citizenship from terrorists who are dual nationals. That is a decision that’s been made. It was made in the National Security Committee. It was ratified by the cabinet. It’s supported by the party room. Now, legislation to give effect to this will be coming into the party room next week and it will be going into the parliament next week. But the government has made an absolutely clear decision and that is certainly won’t be revisited,” Abbott said on Thursday.



Asked about leading constitutional lawyers who have said the plan is almost certainly unconstitutional, Abbott said: “Obviously there is all sorts of legal advice that the government gets as a matter of course in a situation such as this. And we are confident, based on the legal advice we have had from a number of different sources over quite a period of time that we can craft effective legislation that minimises constitutional risk.

“Does that mean that no-one will bring court cases? Of course it doesn’t. But … we’ve got to keep our country safe. We are going to keep terrorists out where they’re dual nationals and it seems the opposition wants to bring them home. No doubt roll out the red carpet for them like it rolled out the red carpet for people smugglers when it was in government.”



The Labor party has accused the government of confusing national security with “chest beating”.



The communications minister Malcolm Turnbull, who has spoken out about the need to make sure all laws are constitutional and respect the separation of powers said there had been some “good constructive discussions” within government about the plan.



“Every law has to comply with the constitution … we are a nation subject to the rule of law and the law applies to the government as much as it does to the governed,” he said.



Since the leaked discussion on 25 May, leading constitutional lawyers have said any plan to give the immigration minister, Peter Dutton, the discretion to revoke citizenship without the involvement of the courts would be unconstitutional. A former adviser cited by the government as the inspiration for the plan, Bret Walker, says he never backed it, believes it would be struck down by the high court, and is “unimpressed” that the government keeps claiming him as a supporter.



Government misquoting my report to defend revoking citizenship, says Bret Walker Read more

Some ministers believe the detail of the citizenship legislation should be presented to cabinet for final decision, given that the last discussion occurred around a vague proposal without a cabinet submission or any kind of documentation or any legal advice. The plan put to cabinet was that Dutton’s decision to revoke citizenship would be subject to administrative review; that is, a review that he had followed the right process but not of the facts upon which the decision was based.



Dutton told Sky News on Thursday that only “one cabinet minister has expressed his concerns to me, he is a learned colleague and I respect his judgment very much. We will take into consideration his views.”



Labor appears to be hardening its position that revocation should only occur after a conviction. Asked how that would work for an Australian fighting with Isis in Syria, the shadow attorney general, Mark Dreyfus, said “you get them back here”.



Dutton accused the Labor party of wanting terrorists to come back to Australia and urged people “not to get bogged down in detail.”



“The very interesting thing this morning is Mr Dreyfus’s bombshell that the Labor party is not going to support stopping terrorists from coming back to our country. I think Australians would be amazed by that … I don’t want these people coming back to our country … having been taught how to make bombs, cut people’s heads off,” Dutton said.



He said the government has been “very clear about our intent, our intent is to make sure that we can stop terrorists wherever possible from coming back to our country”.



“We will do that in accord with the legal advice and we will put together the best possible piece of legislation because we want to keep Australia safe. People can get bogged down in the process, because as you would expect is the normal way of events in these matters we take the legal advice, we act upon it, we mitigate the risks as best we can, but in the end the most important point here is the Australian public wants from their government a piece of legislation that will keep them safe as possible and that is what we are proposing.”



The last cabinet discussion was the subject of an extraordinary leak to the Sydney Morning Herald, which showed ministers angry that the proposal had been sprung on them without a submission or documentation.



According to the leak the meeting was generally supportive of the plan to revoke the citizenship of dual nationals, with the ministers mainly concerned about an additional plan to give the immigration minister the power to revoke the citizenship of Australians with the capacity to claim citizenship of another country, but who had not done so. On that point Abbott and Dutton were overridden by cabinet. The idea was referred to a “discussion paper” despite briefings already having been given to the Daily Telegraph that it was set to be announced.



Guardian Australia understands several ministers believe that cabinet should see and approve its detail, given the lack of information available at the last discussion.



Since the last discussion the attorney general, George Brandis, has received advice from the solicitor general which also raised concerns about the legality on the proposal, according to reports on the ABC.



Turnbull said on Wednesday that any ministerial decision would be able to be challenged in the courts.



“Let’s take the example, let’s assume the laws are amended in this way. So Billy Bloggs is fighting with Daesh in Syria, his citizenship ceases. Billy Bloggs says ‘No, that wasn’t me, it was somebody else’ or ‘I wasn’t fighting, I was, you know, on a hiking holiday’, whatever, he could then, there’s nothing to stop him bringing an action in the Australian courts and seeking to prove that in fact he had not been there, but of course the burden of proof would be on him,” he told Sky News on Tuesday.



“The high court’s interpretation is what matters … we are all of us bound to make sure that our laws comply with the constitution.”

Constitutional lawyers have suggested the courts would have to make a conviction before a minister exercised the discretion to remove citizenship.



Abbott told parliament the plan to allow ministers to strip citizenship from terrorists who are dual nationals at the discretion of the immigration minister was “precisely what was recommended by the former independent national security monitor Bret Walker”.



But Walker has already said publicly his recommendation was for a minister to have the discretion to strip citizenship after a charge had been proven in a court and it had “never occurred” to him that any government would think he had been advising that a minister should have that discretion without any conviction – something the high court would almost certainly find to be unconstitutional.

On Tuesday Walker told Guardian Australia the government should immediately stop misquoting his report to defend the laws it says will be unveiled within a fortnight.

“I am impatient with and I condemn those who persist in reading pages of my report as if they say the government can exercise ministerial discretion after dispensing with a criminal trial. I said the minister should have discretion over the revocation of citizenship after a criminal trial … and it reflects very poorly that those quoting me can’t read beyond the few lines they are citing.”