When Home Affairs Minister, Peter Dutton MP announced that the government had revoked the citizenship of Australian-born terrorist Neil Prakash, he was no doubt sure it would be met with rounds of public applause. After a tumultuous few months for the Coalition, marred by scandal and infighting, Dutton needed a positive front page story. And what better than to reaffirm the government’s strong stance on national security and declare a famed and notorious terrorist had been stripped of citizenship?

There is little about Prakash to elicit empathy. Born in Australia, the 27-year-old allegedly travelled to Syria to fight with Islamic State in 2013. He has appeared in Islamic State propaganda and is reportedly on the United States kill list. According to counter-terrorism experts, Prakash was a “pivotal figure inspiring and encouraging terrorist plots in Australia”. He was captured in October 2016 attempting to sneak into Turkey using fake identity documents and has been held in a maximum security jail ever since.

Prakash is evidently a dangerous man. He is clearly a threat to national security. He is the subject of an Australian Federal Police arrest warrant for multiple serious crimes. And being a follower of radical Islam, of Fijian-Indian and Cambodian background, Prakash conveniently reinforces the notion that terrorists are Muslim, brown and not Australian.

Except Prakash is Australian, or at least was, until Dutton provided him with written notice under section 35 of the Australian Citizenship Act 2007 that his citizenship had ceased.

In 2015 the government tightened the provisions in the Australian Citizenship Act 2007 relating to the cessation of Australian citizenship. However the provisions – those relating to renunciation by conduct (section 33AA) and service outside Australia in armed forces of an enemy country or a declared terrorist organisation (section 35), only apply where a person is also a national or citizen of a country other than Australia.

And the evidence is mounting that Prakash is not.

Whether or not a person is a national or citizen of a particular country is a question of fact. A person either is, or is not, a national or citizen. It is a matter which can be determined by applying the law from the applicable country and it is a determination for the relevant country to make. Fijian officials have categorically stated that Prakash, despite his Fijian background, is not a citizen of that country. This causes some angst for Dutton and the government, which are standing firmly behind the announcement that Prakash has ceased to be an Australian citizen.

It appears that the Citizenship Loss Board, and those advising it, have erred in their briefing to Dutton that Prakash has ceased to be an Australian citizen by virtue of fighting with Islamic State. The legislation requires that if the Minister becomes aware that a person has ceased to be a citizen in accordance with section 35 or 33AA, the Minister must give, or make reasonable attempts to give, written notice to the person that citizenship has either been renounced or has ceased. As such, the revocation of Australian citizenship is an active administrative process. Government officials, if they are notified by security agencies that a possible dual citizen is fighting overseas or committing relevant terrorist acts, have to be satisfied that the elements are met for the provisions to apply before the Minister provides such written notice. In the case of section 35 and 33AA, the person must be aged 14 years or older, be a “a national or citizen of a country other than Australia” and have engaged in the relevant terrorism-related or foreign fighting activities.  

It appears that those briefing Dutton have interpreted the requirement in the legislation to be a foreign national or citizen as including a person being “eligible for” or “entitled to” be a national or citizen of another country. In Prakash’s case, because his father is Fijian, they have determined that close enough is good enough.

However there is nothing in the legislation to suggest that it may be interpreted as broadly as to apply to those who are not, but may be eligible for citizenship of another country. The wording is quite unambiguous and supports a strict interpretation that a person must hold citizenship or be a national of a country other than Australia for section 35 or section 33AA to apply.

If Prakash is not, and was not, a dual citizen, then it is a simple and strongly supported conclusion that he cannot have ceased to be an Australian citizen, or have renounced his Australian citizenship by conduct, as neither provision was enlivened by his actions of engaging in terrorist activities. If so, this is embarrassing for the government and a colossal error in applying the controversial laws.

As Fijian officials are adamant that Prakash is not a citizen, the Australian government’s actions in confirming by written notice that Prakash is no longer an Australian citizen, likely leaves him stateless unless a court rules that the written notice is invalid. If this occurs, section 35(19) provides that “to avoid doubt, a person’s citizenship is taken never to have ceased …” if “(b) … a court finds that the person was not a national or citizen of a country other than Australia at the time the person served or fought”.

Prakash’s case demonstrates how Dutton and his band of merry conservatives use national security to reinforce racism and divide in the community. It’s convenient for Dutton to promote that terrorists are somehow the “other”, they are probably brown and are not Australian. It suits the government to create an easily identifiable target for public fear; someone easily identifiable by the colour of their skin and to reinforce through that, that they are not Australian by way of making tenuous links with ancestry. It is ideologically useful to make terrorists someone else’s responsibility and it suits the government’s agenda to demonstrate it is keeping Australians safe by stripping citizenship. This reinforces that Australians aren’t terrorists and terrorists don’t live in Australia.

Even if a court challenge finds that the cessation of citizenship was erroneous, it’s possible that Prakash will never set foot in Australia again, despite the government initiating extradition proceedings with Turkey for his return. However the government’s possible misapplication of its own law in an attempt to abrogate responsibility for Australian-born and raised terrorists will undoubtedly further damage communities. The actions of the government build on years of racist undertones and policy which reinforces the false notion that Australians are white and of British ancestry.

A conservative estimate is that one third of Australians are either foreign nationals or foreign citizens, with 28% of Australians born overseas and millions more estimated to be dual citizens. It appears that Prakash is not one of these. To accept responsibility for Prakash, a man born in Australia and likely a sole, Australian citizen, is to accept that Australians are diverse and come from all backgrounds. It is to accept that Australia is not just white, Christian and British. It is to accept that Australia has its own home-grown and raised terrorists, and they are Australia’s responsibility, whether it suits the government’s agenda or not.