Proposed terror laws open to challenge, says legal expert

A constitutional challenge to the government’s latest plan to revoke the citizenship of terrorists is inevitable, a law firm says.

A constitutional challenge to the government’s latest plan for revoking the citizenship of terrorists is inevitable, according to the law firm that has represented a series of people accused of terrorism ­offences.

“Anyone who would be subject to such an extraordinary sanction, without the benefit of a criminal trial, would immediately challenge such a finding,” said Jessie Smith at Stary Norton Halphen.

The head of the law school at La Trobe University, Patrick Keyzer, said the scheme appeared to draw on the lessons from High Court challenges to anti-bikie laws and would probably survive a challenge if those stripped of their citizenship were given sufficient procedural fairness.

Ms Smith, whose firm has been involved in some of the nation’s leading terrorism cases, believes the government’s plan “muddies the water” by expanding an existing provision of the Australian Citizenship Act that automatically revokes the citizenship of those who fight for countries at war with Australia.

“It seems to me that if a person is entitled to go to a court and has the opportunity to say they are not a member of a terrorist organisation, and to bring their own case that they are not, then that will survive a constitutional challenge,” Professor Keyzer said.

She believes this is better than relying on a minister’s discretion but it still gives rise to the same concerns.

“People will still not be afforded the really basic rights of a constitutional democracy and that is a fair trial and adjudication of your acts, subject to the standard of criminal proof,” Ms Smith said.

She believed the revocation of citizenship under the proposed system would be predicated on matters that amounted to a criminal offence — membership of a terrorist organisation. The proposal would “sidestep the criminal law” in order to impose the greatest possible penalty — the revocation of citizenship.

Professor Keyzer said details of the government’s plan that had been outlined in The Australian seemed to have been influenced by the mechanism used in Queensland’s anti-bikie laws that had survived a High Court challenge.

He believed the High Court’s rulings in a series of challenges to Queensland’s anti-bikie laws had provided a great deal of information on how the court was likely to react to legislation that identified people as members of an ­organisation and then criminalised their member­ship of that ­organisation.

When the government’s bill is made public, he said the key issue would be whether it provided sufficient procedural fairness for those who could lose their ­citizenship.

The “cookbook” on how the government could draft a plan that would survive challenge had been provided by the High Court in the bikie cases and a series of asylum-seeker cases.