Peter Dutton wants to deport criminal dual citizens. We already have laws for it

The opposition leader Peter Dutton has weakened the idea of ​​changing the Australian constitution to enable the government's ministers to roam double citizens of their Australian citizenship if they commit serious crimes related to terrorism.

Almost immediately, Dutton's coalition colleague and Attorney General Michaelia Cash attributed the idea and said that the coalition had “no plan” for a referendum.

https://www.youtube.com/watch?v=XBXAOJXTLZ0

Double citizens can already lose their Australian citizenship when they commit terrorism violations.

What does the constitution on this topic say?

citizenship

According to the Australian Citizenship Act, there are three main methods of how an Australian citizen can hire their Australian citizenship.

First, a double citizen can voluntarily do without their Australian citizenship. Some people choose to do this if they move overseas and do not intend to return to Australia.

Second, the government can revoke the Australian citizenship of a double citizen if it has received it through fraud. The logic here is that the person was never really justified for Australian citizenship.

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Thirdly and at the serious, a court can – if the government asks to take a double citizen of its Australian citizenship as part of the conviction process for serious crimes such as terrorism and foreign ideas.

When deciding whether this punishment should be imposed, the court must be fulfilled that the person's crime is “so serious and significant that the person has rejected their loyalty to Australia”.

In other words, terrorists for two citizens can already lose their Australian citizenship.

What does the constitution say?

The Federal Parliament can only issue laws on certain topics, as listed in the constitution. One of these topics is “naturalization and extraterrestrials”.

In a case of 2022 named Alexander, the Supreme Court confirmed the naturalization and the power of the aliens allows the federal parliament to say goodbye to laws that take away the citizenship of a person if the person has done something, shows that they had rejected their loyalty to Australia.

This case concerned an Australian-Turkish dual citizen who traveled to Syria to fight with the militant group of the Islamic State. This type of voluntary behavior clearly rejects loyalty to Australia.

In order to be valid, a federal law must not only fall under one of the listed topics such as “naturalization and extraterrestrials”, but also no restriction of the power of the federal parliament.

An important restriction of the legislation of the federal parliament is to keep the federal government's legal power separated from the power of parliament and the executive. This is referred to as “separation of forces”.

The separation of the federal justice is an important constitutional concept. The idea is that it prevents the parliament or the Minister of Government.

Attempts to law

Only courts can exercise the legal authority of the federal government. Judicial power includes things like the imposition of punishments for people for criminal behavior. Here the laws on citizenship have become difficult.

The problem with the law in the case of Alexander was that it made it possible for a government minister to take away the terrorists' Australian citizenship and not a court, and even if the person was not first convicted by a court.

While the Supreme Court decided that the parliament could issue a law under the immigration power, it found that the ministers could not make guilt or punishment.

The government simply considered the problem with the law to be the lack of criminal conviction. Therefore, the parliament passed a new law that made it possible for a government minister to deprive terrorists of the double citizens of their Australian citizenship, but only if they had been convicted for the first time by a court.

But the High Court depressed this law in a case of 2023 called Benbrika.

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Benbrika had been convicted of terrorism crimes in court, then a government minister granted an order to remove his citizenship.

The problem with the law was, the High Court said that a government minister imposed punishment. Only courts can impose punishment under the separation of powers.

In response to this decision, the Federal Parliament passed another law. This time the new law allowed the courts to take a double citizen of their Australian citizenship as a punishment as part of the conviction process for serious crimes such as terrorism.

This is the law that is currently available. It avoids the problem of forces. There is no constitutional problem with courts that impose punishment for crimes.

What does Peter Dutton want to do?

Peter Dutton's comments indicate that he wants government minister – and not courts – impose the punishment of eliminating citizenship. He did not say why or what purpose this would serve, apart from the fact that he “protects our country”.

The only way to enable federal ministers is to change the constitution by a referendum that inserts a new provisions of the provisions of the powers.

In view of the long history of Australia with deferenders, it is unlikely that such a vote will be successful.

That is when it gets out of the gate. The reported tensions within the liberal party suggest that it may not be under control to become official coalition policy.