Legal expert says questioning courts on citizenship powers a ‘dangerous path’

A legal expert has issued a dire warning over Peter Dutton’s referendum plan over convicted criminals with dual citizenship. Take our poll.

A referendum to give governments the power to strip citizenship from criminal dual nationals floated by the Coalition risks “damaging or destroying” Australia’s democracy, a legal expert says.

Opposition leader Peter Dutton has confirmed he is open to holding a “discussion” about whether minister should be able to cancel the Australian citizenship of people convicted of serious crimes like terrorism, a power currently left to the courts.

Opposition leader Peter Dutton says he wants a ‘discussion’ about whether the constitution is too restrictive on citizenship stripping. Picture: NewsWire / David Geraghty

But the idea has been criticised by Labor as a “thought bubble,” while constitutional law experts consider it “very unlikely” Australia would ever hold a referendum on the issue given the legal complexities and potential for unintended consequences.

Mr Dutton said on Tuesday he was concerned there were people in Australia who hated the country and “want to cause terrorist attacks”.

“My argument is that if you betray your allegiance to our country in that way, you should expect to lose your citizenship,” he said.

“What we’re proposing here is a discussion about whether we’ve got adequate laws, whether the constitution is restrictive, and ultimately, what I want to do is keep our country safe.”

University of Sydney Professor Helen Irving said she did not think Australia wanted to go down the path where the “bona fides of the court are questioned”.

“Because then we get into the dangerous ground of questioning and perhaps even undermining the very foundations of the Australian constitutional and democratic system, which I’m sure Mr Dutton is as committed to as anybody else,” she said.

“We don’t want, in the name of protecting democracy, to end up damaging or destroying democracy.”

Prime Minister Anthony Albanese says the referendum idea is a Coalition ‘thought bubble’. Picture: NewsWire / Martin Ollman

Prof Irving said legal challenges had continually found the punitive measure of stripping citizenship was the purview of the court, and it was “very unlikely” a referendum to change that would ever occur.

“We have had the recent experience in 2023 of the really dramatic effect of a failed referendum, whether you were for or against it, it was a very significant and very troubling event,” she said.

“People are very rightly wary of raising a referendum as a ready solution to what is seen to be a weakness or matter that needs to be corrected in the constitution.”

Prof Irving said if Mr Dutton was determined to address the issue he might consider looking at “tightening” citizenship naturalisation laws to make it harder to acquire citizenship.

Anthony Albanese described the suggestion of a citizenship revocation referendum as “another thought bubble” from Mr Dutton.

Coalition treasury spokesman Angus Taylor says the referendum is not policy at this stage. Picture: NewsWire / Nikki Short

“This morning you had Peter Dutton on one TV channel calling for a referendum and (Coalition attorney general spokeswoman) Michaelia Cash on another TV channel ruling it out,” the Prime Minister said.

“This has not been thought through. It is not clear where this has come from.”

Asked if the cost of a second referendum had been costed, Coalition treasury spokesman Angus Taylor said no policy on the issue had been announced at this stage.

“we’re working up our policies on eligibility for citizenship, but the first duty of every single government is always to keep its citizens safe,” he said.

“All options are on the table, but we haven’t announced that policy, and we’ll say more in the coming weeks.”

Originally published as Legal expert says questioning courts on citizenship powers a ‘dangerous path’