• Home
  • Law
  • Read the following news report. Assuming that the proposal goes ahead, critically examine the implications of this proposal for rule of law in Australia.

Read the following news report. Assuming that the proposal goes ahead, critically examine the implications of this proposal for rule of law in Australia. Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    2
  • Words:
    1401

Review of Proposal to Revoke Dual Citizenship

Across the world, reports on terrorism have been reported, and different countries are creating legislations to address terrorism. Australia has proposed a legislative revoking dual citizenship and also to use the proposal retrospectively. The aim is to limit the movement of individuals who are accused or guilty of terrorist activities. The retrospective nature targets people who are guilty of the offence in the last ten years. The proposal has raised constitutional and human rights issues and discussions. Should Parliament pass the legislation and the significance of the legislations on the wider society and the rule of law in Australia? The paper presents aspects, which indicates the proposal would affect or strengthen the rule of law in Australia.

The proposal of revoking dual citizenship and deporting terrorists is important because it reduces the costs associated with following judiciary processes and also prevents the terrorists from participating in terrorist activities. Dual citizenship should be revoked because the individual is a threat to the cohesiveness of Australia. Apart from the security requirements of Australia, UN Security Council Resolution 1373 advices that terrorist’s movement should be restricted and revoking the dual citizenship achieves this requirement1. It becomes a deterrent because of the huge impact of the decision. For example, an individual may have stayed in the country for many years and have families and relations within the community, losing this community and society related obligations affect immensely an individual2. Therefore, using the legislation to limit the movements improves the security requirements of Australia. Australia citizens pledge to upload laws and legal directives and to participate in terrorist activities means that the pledge is not championed. The solution for such situation is to deport individuals through revoking their citizenship.

In Australia, the Federal and State Parliaments have the authority to create retrospective legislation. The laws are used in ex-post facto meaning it is applied after the occurrence of an event. However, the strategy is against the Rule of Law of principle, which states that the law should have being known to everyone so that the individuals would be able to comply with it3. The dual citizenship changes require that people convicted of terrorism and terrorism-related activities in the past ten years also lose their citizenships. Debates exist on the significance of retrospective legislation in advancing the requirement of the rule of law4. In Australia, a retrospective aspect of the law is not enshrined in the Constitution, and the interpretation of retrospective decisions is left to the High Courts. Precedents in Australia exist, which have employed the aspect of a retrospective in ensuring entities adhere to legal requirements. The general idea on retrospective is that the persons committing the crime should be aware of their actions and decisions. It raises points on values, ethics and morals in accomplishing respective duties and obligations. Some of the cases that have employed the retrospective laws include R v Kidman HCA 58 (1915)5 after the passage of Crimes Act 1915 (Cth)6, which the High Court concluded that the Australian Constitution does not provide limitation on enacting retrospective laws. War Crimes Amendment Act 1988 (Cth) is another legislation that states that an individual is guilty of an indictable offence of the individual committed war crime during the Second World War7. Polyukhovich v Commonwealth HCA 32 (1991) decision was arrived at after the High Court had concluded the Parliament had the authority to create retrospective legislation8. Therefore, the passage of the dual citizen legislation reflects the Constitution and authority of the Parliament. Implementation of the proposal means that rule of law is championed in Australia.

It is imperative to note that legislation is not the constitution. The idea of dual citizen is a grey area in the constitution and any decision such as the proposed legislation may be challenged in the High Court. In developing government, the government is divided into three parts, which are legislative, executive and judiciary. The legislative cannot develop the legislations and allow the executive to implement the legislations without the oversight of the judiciary9. One important role of the judiciary is to interpret legislations, and if the Immigration Minister implements the legislation, it means that other sectors of the government have no roles in advancing the rule of law. Therefore, the judiciary should be allowed to interpret the legislation, and each branch of the government should accomplish its roles and responsibilities.

In the formulation and implementation of laws, the laws should be neutral and applicable to all parties. Terrorism and terrorist related activities have become common across the world and creations of stringent laws are among available strategies to address the problem10. The current strategy of revoking dual citizens would not have the people who have committed or accused of terrorist acts at their nationality is Australia. It means that “outsiders” are penalized more than the locals. For example, if two terrorists one with dual citizenship and the other with single citizenship, the High Court will be required to use different rules and legislations. It means that the legislation is discriminatory in nature and may create additional challenges in its application. Formulation and implementation of any legislative have to reflect the needs and requirements of the society and be felt the law is neutral. However, biased legislation may affect the rule of law in Australia.

The legislation does not address the core of the problem but proposes punishment. The definition of the citizenship based on the proposed legislation is a frame for punishing terrorists. Such an approach is counterproductive because it creates additional challenges11. Terrorism is unacceptable and awful but linking terrorism activities with citizenship (allegiance) returns the government to feudal and an antiquated notion of community membership. The current community is multicultural in nature, and utilization of the legislation only affects the dual citizens. Any legislation targeting terrorism should reflect the dynamics of the society and community. Depriving individual their family or nationality results in alienating the individuals from the Australian community. To prevent and reduce the impact of terrorism, cohesion and integration are important. However, employing tactics such as the proposed legislation results in marginalization and limiting integration.

The aspect of nationality and dual citizenship is a constitutional right even though some advocates argue it is a human right. Citizens have pledged alliance to protect the country and any action seen against the country should resemble confrontation with the country. The proposal to revoke dual citizenship is appropriate because it is against the values, ethics, moral and other fundamentals important in championing effective and cohesive communities and societies. The proposal raises numerous avenues in which it can be challenged and its impact on the wider society. Some of the complaints or issues revolve around retrospective nature of law, discrimination, the role and responsibilities of different branches of the government, and whether the legislation may be counterproductive at the end. The arguments have substance, but the importance of the legislation is to create an avenue that champions the rule of law in Australia. Hence, the proposal would advance the rule of law in Australia through targeting “terrorist” individuals with dual citizenship.

Bibliography

Conte Alex, Human Rights in the Prevention and Punishment of Terrorism: Commonwealth Approaches: The United Kingdom, Canada, Australia and New Zealand (Springer Science & Business Media, 2010) 151

Huscroft Grant, Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press, 2008)

Pisoiu Daniela, Arguing Counterterrorism: New Perspectives (Routledge, 2014)

Polyukhovich v Commonwealth HCA 32 (1991)

R v Kidman HCA 58 (1915)

Legislation

Crimes Act 1915 (Cth)

War Crimes Amendment Act 1988 (Cth)

Treaties

UN Security Council Resolution 1373

1 UN Security Council Resolution 1373

2 Alex Conte, Human Rights in the Prevention and Punishment of Terrorism: Commonwealth Approaches: The United Kingdom, Canada, Australia and New Zealand (Springer Science & Business Media, 2010) 151

3 Grant Huscroft, Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press, 2008) 287

4 Daniela Pisoiu, Arguing Counterterrorism: New Perspectives (Routledge, 2014) 156

5 R v Kidman HCA 58 (1915)

6 Crimes Act 1915 (Cth)

7 War Crimes Amendment Act 1988 (Cth)

8 Polyukhovich v Commonwealth HCA 32 (1991)

9 Alex Conte, Human Rights in the Prevention and Punishment of Terrorism: Commonwealth Approaches: The United Kingdom, Canada, Australia and New Zealand (Springer Science & Business Media, 2010) 154

10 Grant Huscroft, Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press, 2008) 289

11 Daniela Pisoiu, Arguing Counterterrorism: New Perspectives (Routledge, 2014) 156