This article is more than 1 year old

This article is more than 1 year old

The intelligence and security committee has recommended a further review of Peter Dutton’s ability to strip terrorists of Australian citizenship before granting his wish to extend those powers.

The committee chaired by Liberal MP Andrew Hastie recommended the bill to lower the bar for citizenship revocation be passed – but “subject to” a further review of the current powers, a small act of defiance given the premium Scott Morrison has put on national security legislation in the 2019 parliamentary year.

Labor backed down on its threat to issue a dissenting report but in a minority report said the bill is “likely unconstitutional” and recommended it not be passed, warning a successful high court challenge could wipe out Dutton’s existing powers. Dutton said that Labor had “ended bipartisanship on national security matters”.

In 2015, the Abbott government introduced powers to strip Australian citizenship from dual nationals convicted of a terrorist offence carrying a sentence of six or more years in prison.

The Coalition bill would allow the home affairs minister to revoke citizenship from people convicted of any terrorist offence provided the minister is “reasonably satisfied” they have another citizenship.

Labor objects to the bill citing expert advice from Victorian QC Peter Hanks that the constitution does not allow the commonwealth to deem that Australian citizens are aliens. Labor MP Mike Kelly has also raised concerns that revoking terrorists’ citizenship transfers the problem to ungoverned spaces around the world and can amplify the terrorist threat.

Dutton's department processed just 15% of citizenship applications last year Read more

The parliamentary joint committee on intelligence and security said that a fresh review is needed to determine if the current citizenship powers are effective and “any unintended consequences that may have become apparent”.

The committee was due to review the existing powers by 1 December 2019, a timeframe it said should be pushed out to 1 December 2020.

Labor issued a minority report in name only, twice referring to its members’ contribution as a “dissenting report” and recommending the bill not be passed. Members called for a further review by the Independent National Security Legislation Monitor.

The shadow attorney general Mark Dreyfus said the government had “made no efforts” to show the bill is constitutional but Labor is “ready to negotiate on other parts of the bill which do not risk a high court challenge” .

The government received constitutional advice from the Australian Government Solicitor office of general counsel but refused to disclose it to the committee or release it, and did not consult the solicitor general.

“Peter Dutton and Scott Morrison are trying to rush legislation through the parliament that could result in terrorists taking the Australian government to the high court – and winning,” Dreyfus said.

“The committee heard expert evidence that the proposed legislation was likely unconstitutional … and risked completely destroying the government’s ability to revoke the citizenship of any terrorist.”

Dutton’s calls for more powers have been marred by the home affairs department admitting the minister cancelled Isis fighter Neil Prakash’s citizenship without checking his Fijian citizenship with Fiji.

Dreyfus said Dutton had “proven himself too incompetent to remove the citizenship of terrorists under existing laws”.

“These new laws practically guarantee he will stuff up more cases, and could result in the government losing all of its powers to remove citizenship.

“This would be undermine our national security, and Labor won’t risk it.”

Dutton accused Dreyfus of advancing “bizarre arguments supporting the legal rights of known terrorists to remain in our community and maintain their Australian citizenship”.

“These are people who have betrayed their allegiance to Australia; who have committed barbaric atrocities fighting for ISIS, sworn allegiance to ISIS and plotted to harm innocent Australians.

“We should be able to strip such people of their Australian citizenship.”

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”.