Tony Abbott risks cabinet split on jihadi law

Tony Abbott is facing another ministerial rift over proposed laws stripping terrorists of citizenship.

Tony Abbott is facing another ministerial rift over proposed laws stripping terrorists of citizenship because the draft legislation is not expected to go back to full cabinet for further consideration.

Three weeks ago, the proposal to revoke citizenship from terrorists with dual nationality caused an uproar in cabinet, with six ministers arguing about the danger of a High Court challenge and complaints that the full cabinet was being kept in the dark.

Immigration Minister Peter Dutton will change the draft laws on ministerial power after receiving Solicitor-General advice that revoking citizenship without a conviction could be unconstitutional, and is preparing to take the draft laws back to the national security committee of cabinet, perhaps as early as today.

After consideration by the NSC and the government’s leadership group, the draft legislation will be given to Coalition MPs next Tuesday and submitted to parliament before the long winter break begins next Thursday.

Malcolm Turnbull, one of the strong critics of the proposal in cabinet at the end of May, does not sit on the NSC and is not in the leadership group, meaning he would be denied an opportunity to have a say. The Communications Minister has publicly ­expressed the view that the full cabinet should be able to consider the changes again.

The changes Mr Dutton is making are aimed at clarifying ministerial power and discretion when deciding to strip a dual citizen of Australian citizenship for joining terrorists or supporting terror groups such as Islamic State. The Prime Minister has committed to introducing the new laws before parliament rises and has the strong support of most of the Coalition backbenchers, who were angry at the cabinet revolt three weeks ago.

There is a widespread view within cabinet that it is not necessary for the proposed laws to go back to the full cabinet. The Immigration Minister was given general approval from the national security committee to develop laws revoking the citizenship of terrorists with dual nationality.

One senior minister told The Australian yesterday that the question of revoking citizenship only had to go to the NSC and the leadership group. Another said the draft would go to the leadership group, which includes Mr Abbott, Julie Bishop, Warren Truss and George Brandis, as “any significant legislation would”.

Labor legal affairs spokesman Mark Dreyfus said yesterday the government continued to be split over the citizenship issue and ­demanded the Coalition produce the proposed legislation. He said Mr Turnbull’s concerns were widely known because of leaks from cabinet last month, and the government was “divided and dysfunctional”.

“It’s now the second time in a week we’ve heard from Malcolm Turnbull expressing his views about the undesirability about some of the proposals that the government is putting forward,” Mr Dreyfus said. “I think the reason the government has not produced its legislation is that they simply can’t agree internally, they’re divided, and they haven’t previously got the proper legal advice they should have got as to the constitutionality of this measure, which is why they’re dysfunctional. You would expect a full brief and a full set of papers to be going to cabinet on a matter as important as this, certainly ­including legal advice from the Solicitor-General.”

Last week Bret Walker SC, the former independent national security legislation monitor, said he believed the plans for stripping of citizenship had been based on a mistaken reading of his advice to the government last year. Mr Walker said the “fulcrum” of the argument for stripping citizenship from terrorists was that there was a conviction.

Mr Dutton told parliament this week Mr Walker’s report to the government was unequivocal about the removal of dual citizenship.

After questioning in cabinet stripping citizenship of dual ­nationals, Mr Abbott publicly backed the proposal but ­relegated the idea of revoking the citizenship of people with sole Australian citizenship but eligible for another nationality to a national discussion paper.

Constitutional law expert Greg Craven said yesterday he suspected any attempt to strip citizenship by ministerial direction would be ruled unconstitutional by the High Court because removing “basic rights”, including the right to vote, was broadly regarded as a judicial power rather than an executive one. “If you want to do something as dramatic to an Australian as saying ‘you are no longer an Australian citizen and you can no longer vote’, how much more fundamental is that than for example saying ‘you’re a burglar and you’re going to jail for two years’?” the Australian Catholic University vice-chancellor said. “Would the court allow someone to be convicted of a burglary by a minister?”

Professor Craven described his analysis as “constitutionally conservative”.

“This is not a highfalutin, human rights, Gillian Triggs-style argument,” he said. “This is simply a really conservative interpretation of the Constitution based upon the rule of law and judicial separation of powers.”