Media Release: High Court rules that 36D of the Australian Citizenship Act 2007 is invalid

Today, the High Court of Australia (“HCA”) has ruled that the Government cannot strip Australians who have been convicted of terrorism offences of their citizenship pursuant to section 36D of the Australian Citizenship Act 2007.

The HCA decision is in response to an appeal that was lodged by convicted terrorist Abdul Nacer Benbrika, who was incarcerated in 2005.

The New South Wales Council for Civil Liberties has long argued that section 36D of the Australian Citizenship Act 2007 was invalid and that it did not empower Ministers to strip a person’s citizenship.

We have long held the position that depriving someone of their citizenship should not be a legislative response to any criminal offence – even the most shocking and inhumane offences such as terrorism as it is fundamentally undemocratic.

Comments from Lydia Shelly, President, NSW Council for Civil Liberties

The Federal Government introduced “Citizenship Stripping” in a highly politicised environment, where there was very little nuanced public debate regarding national security. There was also very little desire to understand the powerful narratives that were being propagated by groups that wished to cause our country harm.

“Citizenship Stripping” was one more tranche in counter terrorism legislation that was introduced after 9/11 and which has steadily eroded our civil liberties.

There is no evidence whatsoever, that eroding civil liberties makes us any safer from acts of terrorism. The only certainty is that governments and their agencies benefit from the erosion of our civil liberties – not the Australian public.

“Citizenship Stripping” was introduced as a means to both dissuade disaffected people from committing acts of terrorism, as well as addressing the anticipated risks that individuals who had been convicted of terrorism related offences may pose to the community upon their release.

It arguably, has not achieve any of these outcomes but instead, created a fertile breeding ground for the narratives being espoused by designated terrorist organisations that members of the Australian community did not belong and were not part of “us”.

Acts of terrorism are abhorrent, and we do need effective responses. This includes legislative responses, that ensures that those who are convicted of such offences are dealt with pursuant to law.

The HCA decision presents an opportunity for the current Federal Government to abandon “Citizenship Stripping” as part of any counterterrorism measure.

We urge the Federal Government to instead, strengthen civil liberties and commit to educating the Australian public (including our youth) about their civil liberties and how they can practically exercise their rights. This is a key aspect of promoting and defending our democracy and social cohesion.