Human rights commissioner expresses concern about Coalition’s plan to place power to revoke Australian citizenship in hands of government rather than courts

This article is more than 5 years old

This article is more than 5 years old

Tim Wilson, the Abbott government-appointed human rights commissioner, has called on the Coalition to explain why a minister should have the power to revoke citizenship “on the basis of mere suspicion of terrorism”.

Wilson said a person’s citizenship was the basis of all other rights and any attempt to remove it should be treated with “extreme caution”.

The human rights commissioner is the latest public figure to raise concerns about forthcoming laws that would place the power in the hands of the executive government rather than the courts.



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His colleague at the Australian Human Rights Commission, president Gillian Triggs, has already said the debate seemed to be “between the subjective suspicions of a minister versus an evidence-based determination by a judge according to established rule of law”.

In a speech to the Sydney Institute on Tuesday evening, Wilson said the defence of democracy, rights and freedom from politicians – “even well-intentioned” ones – required eternal vigilance.

He addressed the government’s plan to grant the immigration minister, Peter Dutton, the power to revoke the Australian citizenship of dual nationals deemed to be involved in terrorism even if they had not been convicted of a crime.

The government plans to introduce the legislation in the next parliamentary sitting fortnight, but has deferred a decision on a related proposal to strip the citizenship of sole nationals who may be able to apply for citizenship elsewhere.

Wilson said he sympathised with the government’s overall objective about finding ways to tackle the national security threat from foreign fighters.

“But I raise reservations about the method,” he said.

“The following questions have not been satisfactorily clarified at this stage: why Australian-born citizens, who are dual nationals, should be stripped of their citizenship; why Australian sole citizens could be stripped of their citizenship and how that could be done without rendering a person stateless; why executive government should decide whether a person’s citizenship is removed on the basis of mere suspicion of terrorism, and not the courts.”

Wilson said these issues must be addressed before the parliament passed any legislative proposal.

“Current governments do face a real and significant challenge with relation to foreign fighters,” he said.

“Executive government does have a role to make determinations based on immediacy and in the national interest. Any decision of the government should be temporary to address the immediate threat and must have a higher threshold test than suspicion.

“A person’s citizenship is the basis of all other rights. We should treat any attempt to remove a person’s citizenship with extreme caution.

“Preserving rights and freedoms is rarely as we would like it to be. We are ordinarily only called to defend it for undesirable people and at undesirable times.”

Wilson made the comments during a speech about the 800th anniversary of Magna Carta. In his other remarks, he said the charter established important principles including government by consent, the rule of law and justice.

But he accused the federal parliament of compromising the principle that taxes could not be levied without consent “by continuing to run up year-on-year deficits and ever-accumulating debt”.

“Contemporary debt is accumulated to finance the lifestyles of people alive today. Those who benefit from the debt are consenting, but the cost is being passed on to future generations that are bound to repay it,” Wilson said.

“Intergenerational debt can be taxation without consent. When one generation inherits burdensome debt without consent their freedom is curtailed because their fate is bound until it is repaid.”

Wilson also emphasised the importance of the separation of powers, saying freedom was enlarged by dividing the concentration of power.

He pointed to mandatory sentencing laws as an example of parliament seeking to bind the hands of the judiciary and thereby prevent proper consideration of individual cases.

Wilson further argued against calls for a charter of rights in Australia, saying that would “circumvent parliamentary sovereignty” and transform judges from being interpreters of law to arbiters over public policy.

“Courts are not the place to fight out issues of legitimate public policy,” he said.

The Human Rights Commission comprises a president and six commissioners.

The attorney general, George Brandis, appointed Wilson as the human rights commissioner in early 2014, saying the commission’s previous focus was “narrow and selective” and Wilson would bring a greater emphasis on freedom.

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Wilson was previously a policy director at the Institute of Public Affairs (IPA), a pro-free market thinktank that has close links to the Liberal party. The IPA has also raised concerns about aspects of the government’s citizenship proposals.

Dutton reaffirmed that the government would not render people stateless and that a dual national whose Australian citizenship was revoked would be able to apply for a judicial review “through the federal court all the way up to the high court”.



But Dutton has previously hinted that the judicial review would be limited in its scope. On Friday he said: “The government’s not going to have the courts second-guessing ministerial decisions.”

On Tuesday, when asked to clarify whether people would be able to test the evidence not just the process, Dutton said the details would be clear in the legislation.

“We do believe very strongly in having judicial oversight, but the decision in the first instance will be made by the minister of the day. That is a very important principle because I think there needs to be a commonsense application of the law based on all the facts available to the minister,” Dutton said.

Triggs, who has faced intense criticism from the government and even calls to resign as commission president, delivered a forthright speech on Friday in which she criticised the major political parties for teaming up to pass “scores of laws” over the past 15 years that threatened fundamental rights and freedoms.



She said celebrations of Magna Carta this year could reignite calls for some form of legislated bill of rights, but it was “highly improbable in the current political environment”.