The Tyrannical Mandate: Ministerial Discretion and Stripping Citizenship

“The reason why we have made this decision is because we have a very strong view: if you’ve left this country to join a terrorist army in the Middle East, we don’t want you.”  These were Prime Minister Tony Abbott’s words in response to the Cabinet dissent that has characterised the debate about stripping Australian citizenship from those believed (though not necessarily known) to be terrorists.

The proposal was always going to be riddled with problems. For one, it flies in the face of citizenship conventions internationally.  To strip citizenship is to eviscerate a legal being, casting the individual into judicial purgatory.  It assumes that an individual engaged in foreign pursuits — in this case, serving the next army that may be regarded as “terrorist” — will lose his or her Australian citizenship.  It says nothing about those serving in state-based armies that are acknowledged as either allies, or states who are bonded by that uncomfortable reality that they are fighting the same threat from different sides of the aisle.

Flimsy, scatterbrained and dangerous, the proposed legislation also vests power in a minister to initiate the final, cancelling act.  In what has been the greatest of legal deceptions, those defending the supremacy of parliament in the English constitutional system have argued that such figures exercise Solomon’s wisdom.  Someone like the current immigration minister Peter Dutton distinctly does not possess such qualities.  Few cabinet members do, and it would be unjust to expect them to.

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