A good salesperson will tell you that every sale, be it a house or car; even something as seemingly simple as a particular brand of breakfast cereal, is made on emotion. When we choose that new car, we are actually buying comfort, reliability and peace of mind. Or sex appeal, status and prestige. Negative emotions drive sales too. After the first Iraqi conflict broke out in 1991, American surplus store owners were confounded by the sudden surge in gas mask sales, driven by the perceived terror threat.
Fear and anger are powerful motivators. But when it comes to rational thinking and clear decision making, you are asking for trouble when you make complex decisions whilst in that kind of emotional state. How did that last discussion with your spouse work out for you when you were angry?
An unscrupulous salesperson could capitalise on the irrational reactive thinking that comes with strong emotion, and convince you to buy something you don’t really need. That’s why consumer law allows for a ‘cooling off’ period after making a significant purchase. There is no such cooling off period with politics per se; instead there are judicial checks and balances put into place to protect us. That is how rule of law works.
Politicians, like snake-oil sellers will also play on emotions like fear to gain public support. Often they will ignite that fear and then offer a solution to resolve it. We have seen this most recently with the magnification of the so-called ‘African gangs’ problem in Victoria. Moral outrage can be a giddy cloud of confusion behind which political agenda can be played out, and draconian laws are often passed off under the guise of public protection. In many cases, our civil rights and liberties are quietly eroded away as a result.
The recent matter of a convicted paedophile Roman Catholic priest is a prime case in point. A dual national who became a naturalized Australian citizen, he committed offences over more than two decades. On completion of his prison term, the Minister moved to revoke his citizenship and deport him. Let me be clear from the outset – there are two separate issues at play here. Firstly the recognition of what amounts to heinous criminal acts and the subsequent need to protect the community at large. There is no defence for the man’s abominable crimes. What I point to here is the potential for moral outrage to cloud proceedings in cases like this; permitting the broadening of draconian laws which then ultimately degrade the rights of others. I also speak to the rise of the notion that some people have less right of ‘ownership’ of residence in Australia than others.
The calls in this case have been clear: ‘This man must be stripped of his citizenship and removed from this country.’ Many outraged people took up the call, but I would wager precious few of them actually knew or cared whether in fact a dual national could be stripped of their citizenship. How exactly can citizenship be revoked after it’s conferral on a dual national, and under what circumstances? To act without recourse to law becomes the mentality of the lynch mob.
When citizenship has been conferred on a non-Australian born person, that citizenship may be revoked only in certain specific circumstances under the auspices of the Australian Citizenship Act (2007) – section 34 Revocation by Minister.
Put in a nutshell, if it was found you acted fraudulently when applying for citizenship or you were convicted of a serious crime resulting in a prison sentence of 12 months or more at any time before you were granted that citizenship, the Minister can pull the pin and revoke your citizenship, if he decides it is in the public interest.
A further consideration was enacted in 2015 to address citizens going overseas to fight with terrorist groups. The Allegiance to Australia Act allowed for Australian citizenship to be stripped from dual nationals as young as 14 who engaged in terrorist acts, or were convicted of terrorism related offenses that carry prison terms of 6 years or more.
The stripping of one’s citizenship is a serious matter, and one would expect that there are legal safeguards in place to ensure a just and reasoned decision is made. The Administrative Appeals Tribunal (AAT) and the Federal court play a critical role in overseeing and reviewing decisions made by Federal government ministers. What is concerning to note is just how much by way of this protection has been quietly eroded without fanfare or public knowledge.
For example, in the case of immigration matters; if the decision to cancel an existing visa or decline a request for the granting of a visa on character grounds is made by the Minister himself, the present legislation has been written in a way which denies a person recourse to a review of that decision by the AAT. Where the AAT over-rule decisions made by his delegates, Peter Dutton has stepped in on dozens of occasions and vetoed their findings. This of itself should be cause for concern, yet few people are aware of it.
Dutton has been very vocal in condemning the AAT, claiming that they have unfairly overturned scores of decisions to cancel the visas of non-citizens. Firstly, a politician criticizing the judiciary is tantamount to undermining the separation of the powers. Dutton’s behaviour is akin to a habitual drunk driver demanding that random breath testing be banned. It leads one to question the true intent of this ex-cop turned politician who is so contemptuous of rule of law.
Secondly, it is a fact that the rate of cases set aside is actually lower now than many previous years in the past decade, including those under Labor governments. This could perhaps be attributed to the troubling fact that in 2017 the government actually moved to replace members of the tribunal and many appointees are ex-Liberal staffers or candidates. Does it concern anybody that a government can ‘stack the deck’ by appointing its own people to an independent tribunal?
Law Council of Australia president Fiona McLeod SC hit out at Dutton’s attacks on the AAT last year, reminding him that “members of the government may disagree with decisions made by the AAT, but the courts and tribunals provide an important check upon the unlawful exercise of power. The independence of the judiciary, and respect for the role of courts and tribunals, is a fundamental to the rule of law in Australia.”
The checks and balances of the AAT and the courts cannot be undermined, in exactly the same way that you as a consumer would not want safeguards like the ‘cooling off’ period removed; leaving you at the mercy of that potentially unscrupulous salesperson.
In the context of citizenship revocation, let me put that to you another way – would you be happy for your future and that of your family to rest wholly and solely in the hands of just one man? That man in this particular case being Peter Dutton? No legislation should permit one man that degree of power.
The line between criminal punishment and immigration detention is blurring, and deportation or expulsion from a society is increasingly being seen as a punitive measure. This is fraught with complication as it essentially becomes a double punishment. To mete out such harsher penalty to a foreign national is essentially punishing someone because they are not naturalized; and that is actually not a crime. We see this notion in the reign of Trump who asserted that the focus on gang members should not be so much on imprisoning them but rather on “getting them the hell out of here.” In 2016, Theresa May while still British Home Secretary stated “We aim to deport all foreign national offenders at the earliest opportunity.”
In Australia, Dutton is hell-bent on taking this to the next level. Shortly after the inception of his new Home Affairs ministry, he announced the launch of a new super security agency to target child sex offenders with dual nationalities. The object of the exercise is to strip such offenders of their Australian citizenship. Nobody challenged the Minister as to exactly how he planned to achieve that, given the legislation that is currently in place. We need to look behind the cloud of moral outrage and question exactly what is happening in the background.
There are laws in place to prevent a person effectively becoming stateless. The Australian Citizenship Act currently prevents a Minister from revoking a person’s Australian citizenship if he or she is unable to become a national or citizen of another country. Despite this, Dutton and Abbott still investigated whether the revocation of Australian citizenship could be extended to natural born Australians, including second generation Australians. The proposal was so radical that six ministers reportedly revolted against the policy in a cabinet meeting. The fact that it was even considered in the first place simply goes to show just how far men like Dutton and Abbott are prepared to push the envelope in their desire to strip citizenship from as many people as humanly possible.
So where is the line in the sand? At what point do we decide that stripping of citizenship and exile is not an appropriate punishment? How ‘Australian’ does one actually need to be in order to be beyond the powers of the Minister? Cold logic suggests to me that with men like Dutton demonstrating their intentions to extend that line in the sand to include second generation Australian-born citizens, then precious few people are safe. They just haven’t been affected yet.
The average punter might counter these concerns by reminding us that the targets of removal of citizenship are those who were fraudulent in their application for citizenship, or who did not declare a past criminal history; or who engage in terrorist activities. “My family certainly aren’t terrorists, so this doesn’t concern us.”
Here’s something to consider. Perhaps someday your teenage kids will go on an overseas trip. Maybe an end-of-year footy trip. High-jinks and drunken horseplay get taken a step too far. Public property is damaged, stolen or defaced. Dual nationals can now lose Australian citizenship if engaging in ‘foreign incursions’ and this includes such things as damage to a public building overseas. The Law Council of Australia has raised concerns that an Australian could now lose his or her Australian citizenship for simply “engaging in graffiti on a public building in a foreign country.”
It’s very easy to be carried by the tide of moral outrage and view rigorous new laws as justifiable; until the day you realise that in the process ordinary people have actually lost many of their rights too.
Once a net is set, it can catch many fish. The degrees of separation between you and potential disaster quietly diminish in the background.