The Australian Bar Association (ABA) has criticised the federal government’s proposal to strip dual nationals linked to terrorism of their Australian citizenship as unconstitutional and “fraught with danger”.
ABA president Fiona McLeod SC (pictured) said the proposal is likely to fail based on its constitutional invalidity.
“The proposal imposes a penalty without adjudication by a court applying traditional safeguards, including a fair trial and the rules of evidence,” Ms McLeod said.
She added that the role of the courts in determining criminal guilt must be respected and the Constitution observed.
“The importance of separate, balanced powers to our cherished democracy cannot be overstated. Respect for each institution is fundamental to a cohesive society that respects the rule of law.”
Sydney silk Bret Walker SC has also criticised the Abbott government’s plans to give Minister for Immigration and Border Protection Peter Dutton power to revoke the citizenship of terrorism suspects.
At an address at the University of Sydney earlier this month, Mr Walker said he was unconvinced by the government’s argument that terrorism offences abroad are “very difficult to prove” and should therefore be decided by a minister.
“I’ve never yet heard that an offence difficult to prove is an offence you don’t have to prove; and that an offence that you cannot persuade 12 people unanimously of is one you don’t have to persuade anybody of, except the minister on the basis of secret intelligence which will not be tested.
“Who cares less what a minister, any more than what a bus driver, says [about whether or not someone is guilty of terrorism]?” he added.
Ms McLeod made similar comments rejecting the government’s rationale for the proposed legislation, noting that the minister’s decision would be based on intelligence or information that would not be admissible in court proceedings.