Proposals require the home affairs minister only to be ‘reasonably satisfied’ convicted terrorist has another citizenship

A new regime of “exclusion orders” for people who have gone to prohibited conflict zones would effectively render suspected foreign fighters stateless, Australia’s peak lawyers’ body has warned.

The prime minister, Scott Morrison, has been forced to defend the legality of changes announced on Thursday with the home affairs minister, Peter Dutton, after the Law Council of Australia said the government had “not made the case” for lowering the bar for stripping terrorists of Australian citizenship.

Under the changes the minister can strip a convicted terrorist of Australian citizenship regardless of the severity of the conviction and need only be “reasonably satisfied” that the person would have another citizenship.

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The president of the Law Council, Morry Bailes, said the measures “challenge key legal principles on which our democracy was founded, and therefore demand very careful consideration”.

“The proposed automatic loss of citizenship and subsequent administrative action do not provide sufficient safeguards to accord with the rule of law, the presumption of innocence, the right to a fair trial and the right of appeal,” he said.

The power to strip convicted terrorists of Australian citizenship was created under laws that passed parliament with bipartisan support in 2015. An individual can lose citizenship only if they are convicted of a terrorism-related offence with a sentence of six years imprisonment or longer, and have citizenship of another country.

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Bailes noted that since the laws passed the national threat level had not changed. “The government has not made the case as to why this bipartisan recommendation no longer represents what is a necessary and proportionate response to the terrorism threat,” he said.

On Thursday Dutton said nine people had had their Australian citizenship cancelled and he claimed there were “a number of cases” that did not fall within the current regime, who he believed posed a “serious threat”.

The Coalition has also proposed a regime to enable the minister to impose an exclusion order for up two years on people who have been to conflict zones, making it a criminal offence to return to Australia unless given a permit with other controls.

Bailes said temporary exclusion orders “may have the effect of rendering an Australian stateless for the duration of the order”.

“This order may be inconsistent with Australia’s international obligations under statelessness conventions,” he said.

The former independent national security legislation monitor Bret Walker SC told Radio National that some of the changes were “perfectly justifiable” – particularly removing the six-year threshold for terrorism offences.

But he warned changing the test to the “reasonable satisfaction” of the minister transferred the power for a “very drastic decision from the court to the executive”.

“I would prefer it always be with the court.”

Walker said that change would significantly add to the class of people who could be stripped of citizenship but warned it did so by “[admitting] the possibility of error” in circumstances where the minister believed the person had another citizenship, but they did not.

Walker said although only “ghastly people” might be rendered stateless, it was a punishment that should not be inflicted on anyone and warned: “Other countries will simply not admit them.”

There was “no urgency to introduce laws of this or any other kind – except perhaps in the case of the wicked problem of encrypted messages”, he said.

The Coalition’s bill to give law enforcement agencies the power to crack encrypted messages is now before the parliamentary joint committee on intelligence and security. Dutton has urged the committee to return the bill so it can be passed in the last sitting fortnight of parliament.

On Friday Morrison told Channel Nine’s Today program that “of course” the government could legally strip people of Australian citizenship.

He said if the minister had the “reasonable belief” a convicted terrorist was a citizen of another country – for example if they “were born overseas or inherited it by descent” – he or she could strip the person of their Australian citizenship.

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Asked what would happen if the country of which a convicted terrorist had citizenship did not accept their return, Morrison said: “If they have got citizenship of that country we will just deport them there.”

He did not address what would happen if the minister were incorrect in believing the person had dual citizenship. Morrison brushed off the Law Council’s concerns, claiming “those who oppose [national security] laws always say this”.

The Greens have fiercely opposed the proposed changes but Labor has reserved its position.

The shadow attorney general, Mark Dreyfus, said Labor would “examine this legislation on its merits”.

“Labor always puts the safety of Australians first and approaches national security in a bipartisan manner,” he said.