Citizenship revocation on national security grounds: context and selected issues

3 August 2015

PDF version [392 KB]

Cat Barker
Foreign Affairs, Defence and Security Section 

Executive summary

  • Current terrorism threats identified by the Australian and other Western governments include those associated with their nationals fighting with overseas terrorist and insurgent groups (‘foreign fighters’) and different forms of ‘home-grown’ terrorism. While the foreign fighter phenomenon is not new, a range of factors, including the number of individuals currently involved in conflicts in places such as Iraq and Syria, and the relatively high proportion from Western nations, has authorities worried. A key concern is the potential threat these individuals may pose to domestic security upon return.
  • On 24 June 2015, the Government introduced a Bill that would provide that a dual national’s Australian citizenship ceases if the person engages in ‘terrorist-related conduct’. The Government has explained the rationale behind this measure from two main perspectives: safeguarding Australia’s national security, and upholding Australian values by limiting citizenship to individuals who maintain allegiance to Australia.
  • From the national security perspective, the Government argues that keeping certain people out of Australia, and removing certain people from Australia, will reduce the chances of terrorism-related offences being committed here. However, a range of factors mean that the impact of adopting the proposal may not be so straightforward.
  • Much of the commentary surrounding the Government’s proposal, and the Bill more specifically, has focused on the mechanism through which a person may lose their citizenship and whether such an action would be constitutional. However, it will be important that Parliament looks not just at how the proposal might be implemented, but also considers threshold issues relating to whether it is necessary, and whether the associated benefits are likely to outweigh any negative consequences.
  • A fundamental question is whether the threats the Bill aims to address can be dealt with using existing measures. Additional considerations from a counter-terrorism and foreign policy perspective include:
    • the potential for perverse outcomes, whereby citizenship revocation might contribute to the development of greater global and national security threats in the longer term
    • losing the opportunity to integrate the voices and stories of disillusioned foreign fighters into more effective counter-narratives to combat the appeal of groups such as Islamic State in Iraq and the Levant, and potentially also obtain information that could assist our intelligence and security agencies and
    • whether citizenship revocation undermines the well-established international framework for cooperation on countering terrorism by shifting the problem onto other countries that may be less capable of dealing with the individuals in question.
  • These are just some of the complexities facing the Parliament as it considers the Bill, and that the Government will be faced with finding a way through if the Bill is passed.

 

Contents

Executive summary
Introduction
International counter-terrorism context
Australian counter-terrorism context

Current threat environment
Federal legislative framework for countering terrorism
Offences
Terrorist organisation proscription
Powers
Australia’s broader counter-terrorism framework

Citizenship revocation: national security and foreign policy issues for consideration

Can the current threats be addressed using existing powers?
National security and counter-terrorism considerations
Potential for perverse outcomes
Missed opportunities?
International cooperation and foreign policy considerations
How citizenship revocation fits within the broader counter-terrorism framework

Conclusion

 

Introduction

On 24 June 2015, the Government introduced a Bill that would provide that a dual national’s Australian citizenship ceases if the person engages in ‘terrorist-related conduct’—legislation foreshadowed by Prime Minister Tony Abbott in his February 2015 National Security Statement.[1] The Government has explained the rationale behind the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 from two main perspectives: safeguarding Australia’s national security, and upholding Australian values by limiting citizenship to individuals who ‘continue to retain an allegiance to Australia’.[2] From the national security perspective, the Government argues that keeping certain people out of Australia, and removing certain people from Australia, will reduce the chances of terrorism-related offences being committed here.[3]

Recent polling indicates strong community support for Australian citizenship being revoked on national security grounds.[4] In a survey conducted by Essential in June 2015, 81 per cent of respondents supported the stripping of citizenship from dual nationals who are ‘engaged in terrorism or supporting terror groups’.[5] That survey, as well as a Fairfax-Ipsos poll conducted in July 2015, found around three-quarters of respondents support citizenship revocation for sole nationals who take part in terrorist activities if they are able to obtain citizenship elsewhere (73 and 75 per cent respectively).[6] Citizenship revocation on national security grounds also has some support among defence and security commentators.[7]

The measure also has its share of detractors. However, much of the commentary surrounding the proposal, and the Bill more specifically, has focused on the mechanism through which a person may lose their citizenship and whether such an action would be constitutional.[8] Relatively less attention has been paid to the threshold question of whether citizenship revocation is a suitable response to the issue at hand. From a national security standpoint, the question is whether the measure will, on balance, make Australia a safer place.

This paper outlines some background and context to the Government’s proposal and highlights some of the broader counter-terrorism and foreign policy issues that arise from the general proposal to revoke citizenship on national security grounds. Both aspects of this paper are intended to bring to the Parliament’s attention matters relevant to consideration of the threshold question posed above.

This paper does not address other aspects of the proposal, such as those relating to statelessness, broader human rights implications and whether citizenship is a right or a privilege. Nor does it provide analysis of the specific proposals put forward under the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Bill). The Parliamentary Library will publish its analysis of that Bill separately in a Bills Digest.

International counter-terrorism context

The evolving nature of the threat of terrorism and violent extremism following the September 2001 terrorist attacks has changed the way that governments around the world respond to prevent terrorism-related violence and deaths. Most recently, many countries have become particularly concerned about issues associated with their nationals fighting with overseas terrorist and insurgent groups (‘foreign fighters’[9]) and different forms of ‘home-grown’ terrorism—whether it be individuals associated with particular groups, or so-called ‘lone wolf’ or ‘lone actor’ threats.[10]

The foreign fighter phenomenon is not a new issue.[11] However, the international community, and Western nations in particular, are especially worried about the implications of foreign fighters participating in current conflicts in places such as Iraq and Syria.[12] A range of factors feeds into this, including the ease of travel to some conflict zones, particularly Syria; new and changing motivations; and a different cohort (younger, with a higher proportion of women and a lower proportion known to authorities).[13] However, the sheer number of foreign fighters who have recently joined conflicts in Iraq, Syria and elsewhere has been a key cause for concern.

The most recent estimate of the size of the current wave of foreign fighters was released by the United Nations in May 2015. The Al-Qaida Sanctions Committee estimated over 25,000 foreign fighters from more than 100 countries were ‘involved with groups associated with Al-Qaida’.[14] This included more than 20,000 in Iraq and Syria, with the remainder primarily in Afghanistan and smaller numbers in countries such as Yemen, Libya, Pakistan and Somalia. These totals include those who have been killed and those who have since returned home or moved on to other countries, and therefore may significantly overestimate the number currently involved in fighting.[15] While the report does not provide a breakdown by country, it does state there has been a ‘sharp increase’ in the number of fighters travelling from European and Asian countries.[16] An earlier estimate that included country breakdowns indicated the majority of foreign fighters in Syria and Iraq were from other Middle Eastern countries, with up to 4,000 from Western Europe and 3,000 from former Soviet states.[17]

The international community’s concerns in relation to foreign fighters fall into two categories. The first relates to their involvement in the conflicts, such as the boost they provide to terrorist organisations and insurgent groups, most prominently the Islamic State of Iraq and the Levant (ISIL), the impact this can have on the nature and duration of those conflicts, and their engagement in atrocities.[18] More relevant to the Bill is the second category—the issues they raise, including potential threats to security, on return to their home country or movement to a third country. Countries from which foreign fighters have originated are worried they will use their experience to stage terrorist attacks in their home countries, or contribute to terrorism in other ways following their return, such as recruiting others to the cause, providing training or raising funds.[19]

The most comprehensive study on the topic indicates that most returned foreign fighters from Western countries do not go on to be involved in terrorism plots in the West—but that some do. Thomas Hegghammer’s 2013 study was based on foreign fighters from Europe, the United States, Canada and Australia who travelled between 1990 and 2010 (before the civil war in Syria, and before the emergence of ISIL in its current form). Hegghammer indicates that attempts to reach a reliable estimate of the total number of fighters are ‘fraught with problems’ and while the estimates he drew on could be used to support a ‘maximum estimate’ of 7,500, he adopted a ‘best minimal estimate’ of 945 for the study.[20] He found that ‘no more than one in nine’ (that is, 107 of the 945–7,500) was later involved in planning attacks in the West (with 24 of 106 plots carried through to execution):

On the one hand, this rate suggests that far from all foreign fighters are domestic fighters-in-the-making. On the other hand, a one-in-nine radicalization rate would make foreign fighter experience one of the strongest predictors of individual involvement in domestic operations that we know.[21]

Hegghammer and others have warned against conflating insurgents, foreign fighters and domestic terrorists. There are some important differences in the motivations of individuals that fall into each of those categories, which are themselves not homogeneous.[22] There is also a range of other complexities to be confronted. Some research indicates that terrorism plots in the West that involve former foreign fighters are both more likely to come to fruition and more likely to result in fatalities.[23] Some research suggests that those who only train with jihadist groups overseas are more likely to perpetrate attacks following their return than those who actually engaged in combat.[24] While a relatively small proportion of returnees might pose threats to security, there are difficulties associated with determining who they are.[25] Further, some analysts have put forward a number of potential mitigating and exacerbating factors that might affect the extent of the threat posed by the current wave of foreign fighters, compared to those involved in past conflicts.[26]

The measures countries are taking in response to foreign fighters fall into two main categories: repressive or security-based measures, and so-called ‘softer’ measures focused on de-radicalisation and disengagement.[27] Generally, countries pursue measures of both kinds to some degree, with debate over the right balance between the two.[28]

Revoking a person’s citizenship on national security grounds falls into the first category. Several other countries, including the United Kingdom, Canada and France, allow a person’s citizenship to be revoked on national security grounds. However, the circumstances in which a person’s citizenship may be revoked, associated processes, and scope for appeal are different under each model.[29] The UK has gone the furthest, most recently updating its laws to allow citizenship to be revoked from a naturalised citizen in certain circumstances if the Home Secretary has reasonable grounds for believing that the person is able to become a national of another country or territory.[30] The UK law has been challenged on several occasions and both the law and its use by the Government have attracted considerable debate and criticism.[31]

Measures that fall into the second category include the well-regarded Deradicalisation–Targeted Intervention program (which includes the ‘Aarhus model’) in Denmark, and EXIT—Deutschland (extreme right-wing movements) and HAYAT—Deutschland (radical Salafist and violent jihadist groups) programs in Germany.[32] These programs include tailored assistance to individuals to help them break away and stay away from extremist groups and violent extremism, and reintegrate into broader society through measures such as counselling, mentoring and help with education, employment and housing.[33] Both countries also have prison-based programs that work with inmates convicted of terrorist or extremist crimes and, in the case of Denmark, inmates radicalised in the prison environment.[34]

Australian counter-terrorism context

Current threat environment

The Australian Security Intelligence Organisation’s (ASIO) latest report to Parliament highlighted terrorism as one of the key threats to Australia’s national security. While it also mentions far-right extremism in that context, it highlights violent jihadism as the principal terrorist threat, and points in particular to risks associated with Australians travelling overseas to train or fight with extremist organisations, supporting the cause from Australia, and lone actors.[35] On 12 September 2014, outgoing Director-General of Security, David Irvine, recommended that the National Terrorism Public Alert System terrorism threat level be changed from medium to high, meaning a terrorist attack is ‘likely’.[36]

On 24 June 2015, the Prime Minister stated there are ‘at least 120 Australians’ currently fighting with terrorist organisations in Syria and Iraq (such as ISIL and Jabhat al-Nusra), and that ‘at least 160 Australians’ are supporting those organisations with financing and recruitment from Australia.[37] ASIO’s report to Parliament states that Australians also continue to fight with or otherwise support extremist organisations engaged in conflicts in other countries such as Somalia, Yemen, Afghanistan and Pakistan.[38] The same day, the Minister for Foreign Affairs told Parliament the Government believes around 30 Australians have been killed fighting in Syria and Iraq.[39] She did not specify with whom those people were fighting. Accordingly, that total would appear to include Australians killed while fighting with Kurdish forces (with whom Australia and coalition partners are cooperating) against ISIL, as well as those fighting with ISIL or other proscribed terrorist organisations.[40] ASIO has stated that around 30 Australians have returned from fighting in Syria and Iraq, with the ‘vast majority’ having returned before ISIL declared its ‘caliphate’ in June 2014. This figure includes those fighting for and against the Syrian regime.[41] As at 23 July 2015, none of those individuals had been ‘involved in activities of security concern’ or convicted for terrorism-related offences following their return.[42]

The proportion of known foreign fighters who have gone on to be convicted of terrorism-related offences in Australia has been higher than pre-ISIL averages across several Western nations. The Prime Minister stated that ‘of the 25 Australians who had returned home after training with terrorists in Afghanistan or Pakistan, 19 were subsequently involved in terrorist plotting and eight were convicted of terrorism offences’.[43] Given the considerably higher number of Australians now involved in overseas conflicts, this is, as the Prime Minister has put it, a ‘daunting precedent’.[44] That said, a range of factors may mean that even without measures to prevent the re-entry of foreign fighters, the risk may not be as great as those figures might suggest.

A number of Australians have already died in combat; it is likely that others will join them. Byman and Shapiro have suggested the proportion of foreign fighters killed in combat is likely to be much higher than previous conflicts due to ‘the ferocity of the fighting (and infighting) there’.[45] Further, given the choice, not all Australians currently fighting with terrorist organisations in Iraq and Syria would be likely to return.[46]

As noted earlier in this paper, there is research suggesting that those who train with terrorist groups overseas pose more of a threat on return than those who actually engaged in combat. Prior to 2012, most Australian foreign fighters were not engaged in combat—they mainly trained in Afghanistan and Pakistan and performed support roles in Lebanon and Yemen. In Iraq and Syria, a higher proportion of Australians is reportedly involved in combat roles.[47] Israeli and European intelligence officials have suggested that the training foreign fighters in Syria do receive may not be particularly well-matched to the skills that would be useful in planning and conducting attacks in the West.[48]

Australian security agencies may also be more alert to returning foreign fighters than they would have been in earlier years, particularly the 1990s, and more experienced and prepared to deal with terrorism plots.[49] However, this needs to be balanced against increased resource pressures associated with monitoring a higher number of individuals. As at June 2015, ASIO was pursuing ‘more than 400 high-priority counter-terrorist investigations’.[50]

Since September 2014, state and federal police have conducted a number of counter-terrorism operations, and reportedly disrupted six planned attacks.[51] There has also been the stabbing of two police officers in Melbourne in September 2014 and the Martin Place siege in December 2014.[52] The Attorney-General pointed out in June 2015 that since September 2014, 23 Australians had been charged ‘as a result of 8 counter-terrorism operations’ and that the same number of Australians were convicted of terrorism-related offences between 2001 and September 2014.[53]

The charging of 23 individuals does not necessarily equate to 23 counter-terrorism convictions. Firstly, not everyone charged between 2001 and September 2014 was convicted, and likewise it should not be assumed that those charged since necessarily will be.[54] Secondly, while they may have resulted from counter-terrorism operations, not all of the recent charges are for counter-terrorism related offences. For example, some of those facing charges resulting from Operation Appleby and Operation Bolton relate to possession of drugs and weapons.[55] Nonetheless, that number of recent disruptions and resulting charges within such a short space of time should be taken seriously.

The following sections briefly outline some of the laws and powers Australia already has in place to deal with terrorist threats, with a focus on some of the key elements of the latest round of reforms, and highlights some of the broader issues that citizenship revocation powers raise from a national security and foreign policy perspective.

Federal legislative framework for countering terrorism

The Bill is the latest in the third major package of reforms brought forward since 2001.

Following the events of 11 September 2001 in the United States and the subsequent United Nations Security Council Resolution 1373 (2001), the Australian Government, in cooperation with the states and territories, embarked on a series of significant legislative reforms to respond to the threat of terrorism.[56] The reforms included special powers for ASIO, a range of new offences and the introduction of a mechanism for the proscription of terrorist organisations.[57] The London bombings in July 2005 prompted further reforms, including the introduction of the control order and preventative detention order regimes, and additional police powers in relation to suspected terrorism offences.[58]

The latest package began with the introduction of the Bill for the National Security Legislation Amendment Act (No. 1) 2014 in July 2014, and continued with the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Act), Counter-Terrorism Legislation Amendment Act (No. 1) 2014 and, arguably, the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015.[59] These Acts have extended and significantly expanded existing powers and offences and introduced a range of additional powers and offences.[60] The most relevant in the context of the current Bill is the Foreign Fighters Act, which introduced broad-ranging amendments primarily aimed at addressing the increased threat of terrorism posed by Australians engaging in, and returning from, conflicts in foreign countries.[61]

As stated on the Government’s Australian National Security website, ‘Australia has long played a leading role in the development of laws to combat terrorism. The Australian Government has an extensive legislative regime around counter-terrorism, national security and other cross-jurisdictional offences’.[62] Some of the key components are outlined briefly below.

Offences

The Criminal Code Act 1995 contains a broad range of terrorism-related offences, including offences that criminalise conduct relating to supporting, advocating or planning terrorist attacks, in addition to direct involvement.[63]

Part 5.3 of the Criminal Code includes offences relating to:

  • terrorist acts, including a range of preparatory offences (Division 101)
  • terrorist organisations, such as directing their activities, membership, recruiting, training and providing funds or other support (Division 102) and
  • financing terrorism (Division 103).[64]

Part 5.5 of the Criminal Code includes offences relating to foreign incursions and recruitment, including preparatory offences and the recently introduced offence of entering or remaining in an area declared by the Foreign Minister.

Terrorist organisation proscription

Australia’s terrorist organisation proscription scheme is set out in Division 102 of the Criminal Code. The Governor-General may proscribe a group by regulation if the Attorney-General is satisfied on reasonable grounds that it is ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act’ or ‘advocates the doing of a terrorist act’.[65] Such a regulation remains in effect for three years unless it is repealed or ceases earlier, or a new regulation is made that replaces it.[66]

Guidelines available on the Australian Government’s National Security website provide further detail on the process of listing terrorist organisations, including the roles of different government agencies, factors considered when determining whether to list an organisation, and monitoring, re-listing and de-listing.[67]

As at 21 July 2015, there were 20 organisations proscribed under the scheme.[68] The terrorist organisation offences in Division 102 apply in relation to proscribed organisations and any found by a court to be a terrorist organisation.[69]

Powers

Division 104 of the Criminal Code contains the federal control order regime. Recently updated, the objects of the control order regime are now to allow obligations, prohibitions and restrictions to be imposed on a person for the purposes of:

  • protecting the public from a terrorist attack
  • preventing the provision of support for, or the facilitation of, a terrorist act and/or
  • preventing the provision of support for, or the facilitation of, engagement in a ‘hostile activity’ in a foreign country.[70]

A control order may be made by an issuing court on application from a senior Australian Federal Police (AFP) member if it is satisfied of particular matters, including that the obligations, prohibitions and restrictions to be imposed under the order are reasonably necessary, appropriate and adapted to serving one of the above purposes.[71]

Division 105 of the Criminal Code contains the federal preventative detention order regime. The purpose of the regime is to allow a person to be taken into custody for a limited time period in order to either prevent an imminent terrorist act from occurring or preserve evidence of, or in relation to, a recent terrorist act.[72] A member of the AFP may apply to a senior member of the AFP for an order against a person 16 years of age or older, for an initial period of 24 hours. An order permitting detention for up to 48 hours may only be granted by certain members of the judiciary and certain members of the Administrative Appeals Tribunal.[73]

The Australian Security Intelligence Organisation Act 1979 sets out ASIO’s functions and powers.[74] Of particular relevance is Division 3 of Part III, which provides for the issue of questioning warrants and questioning and detention warrants in relation to suspected terrorism offences where other means of collecting the relevant intelligence would be ineffective.[75] The warrants are intended as intelligence gathering and preventative tools, not investigative tools. As such, a person is questioned on the basis that they can provide information about a potential terrorism offence rather than on suspicion of having committed an offence, and detained on the basis of preventing the person from damaging evidence or alerting someone involved in a terrorism offence to the fact that it is being investigated. A person may actually be detained under either warrant type; the distinction is when a person may be detained and by whom it is authorised.

The Crimes Act 1914 provides a range of powers that the AFP uses to investigate terrorism and other crimes, such as search warrants, arrest and related matters, and covert investigative powers such as controlled operations.[76] Powers particular to counter-terrorism include delayed notification search warrants (Part IAAA), special stop, search and seizure powers (Division 3A of Part IAA), a lower threshold for arrest without warrant for suspected terrorism offences (section 3WA) and special rules where a person is detained following arrest for a terrorism offence (Subdivision B of Division 2 in Part IC).

In addition to these and other powers, a range of Commonwealth laws includes special provisions that apply in relation to suspected or alleged terrorism.[77] These include, for example, reforms that were made through the Foreign Fighters Act relating to welfare payments and how courts may deal with foreign evidence.

Australia’s broader counter-terrorism framework

Australian governments have a well-established framework and mechanisms for countering terrorism.[78] The National Counter-Terrorism Plan outlines Australia’s strategic approach to preventing and dealing with domestic terrorism. It outlines Commonwealth and state and territory responsibilities and coordination mechanisms in the areas of preparedness, prevention, response and recovery.[79] The Plan was last updated in 2012.[80]

At a Council of Australian Governments (COAG) special meeting in July 2015, the Prime Minister and state and territory leaders agreed to and released Australia’s Counter-Terrorism Strategy (the Strategy), which ‘sits above and is complemented by’ the National Plan.[81] Development of the strategy followed on from recommendations made in a Commonwealth review of Australia’s counter-terrorism machinery released in February 2015. Among these was a recommendation that a strategy ought to be developed ‘which appropriately coordinates and balances our efforts to counteract the various threats we face’ and that COAG’s agreement should be sought to a new national strategy on countering violent extremism.[82]

The Strategy comprises five core elements:

  • challenging violent extremist ideologies
  • preventing people from engaging in terrorism
  • international engagement to shape the global environment
  • disrupting domestic terrorist activity and
  • arrangements for responding to and recovering from any terrorist incidents that may occur.[83]

In the federal jurisdiction, the recent legislative reforms have been complemented by significant additional funding for intelligence, security and law enforcement agencies, and a smaller amount for measures to prevent and counter violent extremism.[84] As part of a $630 million counter-terrorism funding package announced in August 2014, the Australian Government committed:

    • $13.4 million to strengthen community engagement programmes in Australia with an emphasis on preventing young Australians from becoming involved with extremist groups;
    • $6.2 million to establish a new Australian Federal Police Community Diversion and Monitoring Team for returning foreign fighters and those who support them;
    • $32.7 million for a multi-agency national disruption group to investigate, prosecute and disrupt foreign fighters and their supporters; and
    • $11.8 million for the Australian Federal Police to bolster its ability to respond to the threat of foreign fighters at home and abroad including local and regional Liaison Officers and two new investigative teams to help reduce the threat of extremists leaving Australia.[85]

Successive Australian governments have provided some funding to deradicalisation and rehabilitation programs within the broader framework of countering violent extremism (CVE).[86] However, as a recent government review noted, Australian CVE measures overall have been limited both in terms of resources committed and effectiveness, and have a shorter history than more securitised responses.[87] Further, CVE measures directed at countering threats relating to foreign fighters have so far been primarily focused on prevention rather than ways to manage returnees.[88] The Strategy indicates management of individuals ‘seeking to return’ to Australia will be managed on a case-by-case basis, with options including prosecution, personal restrictions, cooperation with government and community initiatives and participation in CVE and other preventative programs.[89]

Citizenship revocation: national security and foreign policy issues for consideration

The following sections outline some of the national security and foreign policy-related issues that arise in the context of the proposal to revoke Australian citizenship from dual nationals for engaging in terrorism-related conduct. It is not intended as a comprehensive examination of all such issues. Rather, for the purposes of informing Parliament’s consideration of the Bill and related matters, it focuses on the extent to which existing powers could be used to manage the challenges that the proposal aims to address, and outlines some of the key concerns raised in recent commentary.

Can the current threats be addressed using existing powers?

A fundamental question that arises in the context of any proposed new power is whether it is necessary to reach the stated objective. A key consideration in that context is the extent to which existing tools are available to deal with the issue that the new power aims to address. In this instance, citizenship revocation is proposed in order to safeguard Australia’s national security. In particular, it is argued that keeping certain people out of Australia, and removing certain people from Australia, will reduce the chances of terrorism-related offences being committed here.[90]

As is evident from the summary above, Australia already has fairly comprehensive legal and operational measures in place to deal with terrorism. An already strong framework was reinforced through reforms passed in 2014. The Government has also stated that further measures will be introduced later in 2015. These will reportedly include further amendments to the control order regime, and laws to ‘allow security cleared judges to hold secret hearings’ when considering applications for search and telecommunications interception warrants based on sensitive intelligence.[91]

One of the main security-related arguments advanced by the Prime Minister for introducing the measures in the Bill is the difficulty involved in obtaining sufficient admissible evidence to prosecute individuals for conduct they allegedly engaged in overseas. He has stated ‘putting Australian foreign fighters in gaol is easier said than done ... Bringing foreign fighters back to face trial in Australia risks leaving them free on our streets rather than in our gaols’.[92] Several existing powers are particularly relevant in this context.

The Foreign Fighters Act amended the Foreign Evidence Act 1994 to remove the requirement for ‘terrorism-related proceedings’ to comply with the usual rules of evidence, which generally exclude foreign material obtained outside of the formal mutual assistance process.[93] One of the particular obstacles this is intended to address is obtaining admissible evidence ‘in regions in severe states of conflict, where there is no functioning government or where the legitimacy of the government is not recognised by Australia’ (such as Syria), making related investigations and prosecutions easier.[94]

The control order regime has been in place since late 2005 but has not often been used. Only two control orders had been issued up to the end of June 2014.[95] They have reportedly been used at least twice since then, and could be expected to be employed more often in light of recent reforms.[96]

Reforms passed in 2014 expanded both the grounds on which orders may be sought and the purposes for which they may be granted.[97] There are now several grounds on which an order may be sought, most of which relate not to what might be prevented by an order, but to what the police and the court are satisfied a person has already done (such as having trained with a terrorist organisation, having engaged in hostile activity in a foreign country or provided support for someone else to do so).[98] Further, while the obligations, prohibitions and restrictions to be imposed on a person under a control order must still serve some protective or preventative purpose, that now extends to preventing support for, or facilitation of, a terrorist act or engagement in hostile activity in a foreign country.[99]

The threshold for the granting of a control order (satisfaction on the balance of probabilities) is considerably lower than that required to obtain a criminal conviction (proof beyond reasonable doubt).[100] It is possible control orders could be made in relation to individuals of sufficient security concern to manage the risk to the Australian community where a prosecution fails or does not proceed. The obligations, prohibitions and restrictions that may be placed on a person subject to an order are extensive. They may include, for example, wearing a tracking device, curfew requirements, prohibitions on being in certain places or contacting certain people, and regular reporting to police.[101]

Since the Australian Passports Act 2005 was enacted, the Minister for Foreign Affairs has had the power to refuse or cancel an Australian passport on several grounds relating to national security and law enforcement.[102] Reforms passed in 2014 allow the Minister to suspend a person’s passport pending a decision about cancellation.[103] While an Australian citizen whose passport has been cancelled may still return to Australia, they could not do so undetected. The person would need to obtain a short-term travel document through the Department of Foreign Affairs and Trade in order to enter Australia.[104] This means authorities can be aware of when such an individual returns, enabling monitoring of the person from the moment they return.

National security and counter-terrorism considerations

Revoking a person’s citizenship in some circumstances might benefit national security. However, it might also undermine national security by leading to perverse outcomes and missed opportunities.

Potential for perverse outcomes

Some have argued that revoking the citizenship of foreign fighters and domestic terrorists could actually exacerbate national security and terrorism threats in the longer term. Not all foreign fighters would willingly return in any case. But in cases where they would, revoking their citizenship and blocking their return home may play into the hands of ISIL and other terrorist organisations, and ultimately result in greater threats to security, including in Australia.[105] Professor Ben Saul argues that the policy is ‘certain to make the world more dangerous and is grossly irresponsible’.[106] Associate Professor Anne Aly argues that having unwanted foreign fighters stranded in the Middle East is what ISIL is hoping for: ‘They are building their state with the lost souls of those who have been lured into their web and find no escape. Why we would want to give them that is beyond me’.[107]

Adam Lockyer and George Milad, lecturers at Macquarie University’s Department of Policing, Intelligence and Counter Terrorism, point to what past experience, including the formation of Al-Qaida, might teach us on this point:

During the 1980s, thousands of foreign fighters travelled to Afghanistan to fight against the Soviet occupation. They arrived from around the world, but especially from the Middle East. Egypt even quietly encouraged its radical Islamists to travel to Afghanistan with the sincere hope that they would all become martyrs.

However, following the end of the Afghan-Soviet War, many Arab states blocked their nationals from returning. Probably the most famous example is Saudi Arabia’s refusal to allow Osama bin-Laden to return home.

The Middle Eastern secular dictators had viewed the radical Islamists as mere political nuisances before. Now, having received CIA training in Pakistan and years of frontline combat experience, they were considered serious threats.

So, rather than returning to their home countries, these fighters become professional international jihadists. A few stayed in Afghanistan to continue fighting alongside the Afghan warlords. Most, however, chose either to join Osama bin Laden in Sudan or accept Ali Abdullah Saleh’s invitation to join the fight against the secular socialist government in Yemen.

These stateless professional jihadists went on to form the core of al-Qaeda. They were responsible for attacks on the US embassies in Kenya and Tanzania and the bombing of the USS Cole in the Port of Aden in Yemen, among many others.

...

In the long run, the jihadists will be greater threats to Australian security than if they had simply returned home to their families, normality and ASIO monitoring. Sometimes you should keep your friends close and your enemies closer.[108]

This would not just be a problem for the Middle East. Just as the current terrorism threats emanating from that region and elsewhere present global threats, so too would new or strengthened groups that could benefit from foreign fighters who might otherwise have returned home. The Strategy recognises terrorism ‘is a global issue—the threat to Australia is directly related to terrorism abroad’.[109]

In addition, as has been the case with other recent counter-terrorism measures and the way they are handled, some have raised concerns that a policy of citizenship revocation risks increasing social disaffection and potentially adding to the allure of organisations such as ISIL.[110] The point about the dangers of conflating foreign fighters with domestic terrorists is relevant here:

... governments should adapt their communication strategies to the reality that most Islamists consider confined insurgency more legitimate than international terrorism. Talk of insurgents and foreign fighters as “terrorists” will likely fall on deaf ears and may irritate rather than dissuade the fence-sitters. It is probably better to acknowledge the difference between domestic and foreign fighting and to discourage each activity with different sets of arguments.[111]

Missed opportunities?

A further concern, particularly in relation to foreign fighters, is that by blocking their return we lose an opportunity to integrate the voices and stories of disillusioned fighters into more effective counter-narratives to support CVE efforts.

ISIL is notorious for the sophistication, extent and success of its propaganda efforts.[112] One of the tactics it employs to attract additional foreign fighters to its cause is to use those already with the group—particularly Westerners, including Australian fighters—in its propaganda.[113]

A range of experts including police have argued that if allowed to return to Australia, disillusioned foreign fighters are in a unique position to provide a credible counter-narrative to the glamorised version offered by ISIL.[114] Those who might be tempted to follow in their footsteps are much more likely to listen to and be persuaded by former fighters than police, media or government.[115]

Some in the security community have also pointed out that barring their return means losing the opportunity to benefit from the information former foreign fighters could provide our intelligence and security agencies.[116] However, the potential intelligence value of Australian former foreign fighters has been questioned by at least one analyst.[117]

International cooperation and foreign policy considerations

Australia has ratified and implemented 14 of the 18 international counter-terrorism instruments.[118] It also has obligations under resolutions adopted by the United Nations General Assembly and the United Nations Security Council (UNSC).[119] Two UNSC resolutions adopted in 2014 are particularly relevant.

UNSC 2170 (2014), adopted in August 2014, calls on all Member States to, among other things:

take national measures to suppress the flow of foreign terrorist fighters to, and bring to justice, in accordance with applicable international law, foreign terrorist fighters of, ISIL, ANF [Al Nusrah Front, also known as Jabat al-Nusra] and all other individuals, groups, undertakings and entities associated with Al-Qaida’.[120]

UNSC 2178 (2014), adopted in September 2014, condemned violent extremism and required Member States to implement a range of measures to stem the flow of foreign fighters.[121] It is broader than UNSC 2170, and calls on states to cooperate on the issue, including by:

preventing the radicalization to terrorism and recruitment of foreign terrorist fighters, including children, preventing foreign terrorist fighters from crossing their borders, disrupting and preventing financial support to foreign terrorist fighters, and developing and implementing prosecution, rehabilitation and reintegration strategies for returning foreign terrorist fighters.[122]

The Strategy restates Australia’s commitment to effective international cooperation through the UN and other multi-lateral forums, working with partner countries and civil society, and capacity and capability building, stating: ‘We will have the greatest impact when we work with partners in coordinated global action against terrorism’.[123]

Professor Ben Saul has argued that revoking citizenship from foreign fighters and domestic terrorists goes against Australia’s counter-terrorism-related international obligations and undermines the international framework for cooperation on such matters:

It is contrary to Australia's international legal obligations to counter terrorism globally ...

...

A responsible government would not foist its terrorists onto other countries, but bring them home to face justice. This is not only the responsible thing to do from a national security perspective, but is also required of Australia by international law.

Under United Nations Security Council resolutions since 2001, every country has legal obligations to prevent, investigate, apprehend, prosecute and punish terrorists. These obligations are designed to ensure a coordinated global approach to countering terrorism and to prevent impunity for terrorists. Australia has long supported these resolutions, and has often claimed that they justify Australia's counterterrorism laws.

Al Qaeda was able to mount the devastating 9/11 attacks on the United States precisely because it had found safe haven in Afghanistan and earlier in Sudan. The Security Council resolutions aim to ensure the global suppression of terrorism and to prevent terrorists taking advantage of loopholes and gaps in national law enforcement.[124]

Beyond any specific obligations, several commentators are concerned that by revoking citizenship on national security or counter-terrorism grounds, Australia would not be acting as a responsible international citizen. They argue that rather than dealing with the foreign fighter problem, such an approach merely shifts it to other countries that may be less capable of dealing with the individuals in question.[125] Researcher Andrew Zammit also highlights the reciprocal nature of international cooperation, pointing out Australia ‘would not appreciate it’ if the Lebanese Government were to revoke the citizenship of several dual nationals convicted of terrorism in Lebanon and deport them to Australia.[126]

These points again raise the importance of considering both the short and long-term implications of proposed national security measures such as citizenship revocation for terrorism-related conduct.

How citizenship revocation fits within the broader counter-terrorism framework

Both the way the legislation is framed, and how it would be used in practice, could affect the degree to which issues such as those outlined in this paper may materialise.

A Commonwealth review of Australia’s counter-terrorism machinery released in February 2015 recommended development of a comprehensive strategy for managing the controlled return of Australian foreign fighters. The review suggested the strategy should comprise a range of what might be called ‘hard’ and ‘soft’ options, and that the various options not be treated as mutually exclusive:

Options should include prosecution, revocation of citizenship, temporary or permanent exclusion from Australia while negotiated returns take place, mandatory de-radicalisation, cooperation with law enforcement and intelligence agencies, and rehabilitation support. The options should not be mutually exclusive – a range of options may be imposed on an individual, informed by an assessment of the level of threat the individual poses, coupled with an assessment of the needs of the individual to enable successful rehabilitation.[127]

While not detailing how the other components of the strategy mentioned above are being or may be taken forward, the Explanatory Memorandum to the Bill does state that the Government is ‘taking a multi-faceted approach’ to countering terrorist threats, including by implementing the review recommendations relating to CVE and managing the return of foreign fighters.[128]

Interestingly, the Strategy makes no mention of citizenship revocation or loss, though it does mention ‘permanent or temporary exclusion from Australia of non-citizens’ and passport cancellations among the personal restrictions that might be employed to manage foreign fighters.[129]

These descriptions of how citizenship revocation might (or might not) fit into the broader counter-terrorism framework provide a contrast to some of the descriptions of the measure given by the Prime Minister, which have tended to suggest less selective use of the proposed new power. For example, in June 2015, the Prime Minister stated:

We’re trying to prevent people from leaving our country to become terrorists; we’re trying to prevent hardened terrorists from coming back; and we’re striving to lock up any that we can’t keep out.

...

So, if you leave Australia to fight for terrorist armies in the Middle East, we don’t want you back—and if you’re a dual citizen, we certainly won’t let you back.[130]

Security analyst David Wells recently suggested that ‘used sparingly against the most serious targets and threats, preferably post-conviction, citizenship-stripping of dual nationals could deliver operational outcomes and free up resources to focus on emerging threats’, though he cautions that those benefits need to be weighed against potential drawbacks.[131]

Conclusion

This paper has outlined just some of the complexities facing the Parliament as it considers the Bill, and that the Government will be faced with finding a way through if the Bill is passed.

While the means by which the Government proposes to implement its proposal are certainly important, threshold issues relating to whether it is necessary, and whether the associated benefits are likely to outweigh any negative consequences should also be carefully considered. A fundamental question is whether the threats that the Bill aims to address can be dealt with using existing measures. From a national security perspective, further issues that arise include the potential creation of a more significant threat in the longer term and losing the opportunity to integrate the stories of disillusioned foreign fighters into measures to combat the appeal of organisations such as ISIL. From a foreign policy and international cooperation perspective, questions have been raised about whether the proposed new measures are consistent with our international counter-terrorism obligations and broader notions of good global citizenship. The impacts of actions Australia takes now will likely play out over many years to come. In considering the Government’s proposal, it will be important to ensure that Australia is not risking more intractable social and security problems further down the track by favouring an immediate short-term solution over a more durable and sustainable one that might take longer to establish.



[1].         T Abbott (Prime Minister), National Security Statement: speech, Canberra, media release, 23 February 2015; Parliament of Australia, ‘Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 homepage’, Australian Parliament website; Explanatory Memorandum, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 1; all accessed 20 July 2015.

[2].         T Abbott, National Security Statement, op. cit.; Explanatory Memorandum, op. cit.; T Abbott (Prime Minister), Magna Carta Lecture: speech, Canberra, media release, 24 June 2015, accessed 16 July 2015.

[3].         Abbott, Magna Carta Lecture, op. cit.; T Abbott (Prime Minister), G Brandis (Attorney-General) and P Dutton (Minister for Immigration and Border Protection), Legislation to strip terrorists of citizenship, media release, 23 June 2015; T Abbott (Prime Minister), G Brandis (Attorney-General) and P Dutton (Minister for Immigration and Border Protection), Prime Minister’s transcript—joint press conference, Parliament House, Canberra, media release, 23 June 2015; both accessed 17 July 2015.

[4].         The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 proposes different mechanisms for loss of citizenship—it would be renounced by certain conduct, ceased by certain conduct and ceased upon conviction for certain offences. For simplicity, this paper refers to ‘citizenship revocation’, as the discussion is focused on the potential implications of certain individuals losing citizenship, not the particular mechanism by which that may occur.

[5].         B Keane and C Knowlton, ‘Essential: citizenship stripping—by courts—overwhelmingly popular’, Crikey, 10 June 2015, accessed 20 July 2015.

[6].         Ibid.; J Massola, ‘Poll shows majority support for Abbott on stripping citizenship’, The Sydney Morning Herald, 7 July 2015, p. 3, accessed 17 July 2015.

[7].         See for example N James, ‘Terrorism, treachery and Australian citizenship’, The Strategist, blog, 23 June 2015; A Bergin, ‘New thinking on how to banish homegrown jihadists’, The Age, 7 July 2015, p. 19; both accessed 20 July 2015.

[8].         See for example C Uhlmann, ‘Abbott Government hits legal hurdle over bid to strip suspected terrorists of citizenship’, Australian Broadcasting Corporation (ABC) News, 13 June 2015; G Barns, ‘Abbott Government tramples on rule of law’, The Canberra Times, 18 June 2015; both accessed 21 July 2015.

[9].          For a more comprehensive definition, see T Hegghammer, ‘The rise of Muslim foreign fighters: Islam and the globalization of jihad’, International Security, 35(3), 2010, pp. 57–59, accessed 14 July 2015.

[10].       Australian Security Intelligence Organisation (ASIO), Report to Parliament 2013–14, ASIO, Canberra, 2014, pp. 2–5; M Steinbach (Assistant Director, Counterterrorism Division, Federal Bureau of Investigation), ‘The urgent threat of foreign fighters and homegrown terror’, Statement before the House Committee on Homeland Security, 11 February 2015; Europol, European Union terrorism situation and trend report 2015, European Police Office, 2015, pp. 6–7, 18–23; all accessed 15 July 2015.

[11].       Hegghammer, ‘The rise of Muslim foreign fighters’, op. cit., pp. 53–63, 71–89; A Zammit, Australian foreign fighters: risks and responses, Analysis, Lowy Institute for International Policy, Sydney, April 2015, pp. 3–10, accessed 14 July 2015.

[12].       United Nations Security Council (UNSC), Security Council resolution 2178 (2014), S/RES/2178 (2014), 24 September 2014; P Bakowski and L Puccio, “Foreign fighters”: Member States’ responses and EU action in an international context, Briefing, European Parliamentary Research Service, February 2015; K Archick, P Belkin, CM Blanchard, CE Humud and DE Mix, European fighters in Syria and Iraq: assessments, responses and issues for the United States, CRS Report, Congressional Research Service, Washington, 27 April 2015; all accessed 14 July 2015.

[13].       D Byman and J Shapiro, Be afraid. Be a little afraid: the threat of terrorism from Western foreign fighters in Syria and Iraq, Policy Paper, 34, Brookings Institution, Washington, November 2014, pp. 9–15; R Barrett, Foreign fighters in Syria, The Soufan Group, New York, June 2014, pp. 21–25; R Briggs and T Silverman, Western foreign fighters: innovations in responding to the threat, Institute for Strategic Dialogue, London, 2014, pp. 8–15; all accessed 14 July 2015.

[14].       Analytical Support and Sanctions Monitoring Team for the Al-Qaida Sanctions Committee, ‘Analysis and recommendations with regard to the global threat from foreign terrorist fighters’, UNSC, S/2015/358, 19 May 2015, accessed 14 July 2015. While the group that now calls itself ‘Islamic State’ has split from Al-Qaeda, it remains on the Al-Qaida sanctions list (as Al-Qaida in Iraq).

[15].       In January 2015, the International Centre for the Study of Radicalisation and Political Violence (ICSR) estimated five to ten per cent of those who had gone to Iraq and Syria had been killed and 10–30 per cent had left the conflict zones: PR Neumann, ‘Foreign fighter total in Syria/Iraq now exceeds 20,000; surpasses Afghanistan conflict in the 1980s’, ICSR, King’s College London, 26 January 2015, accessed 14 July 2015.

[16].       Analytical Support and Sanctions Monitoring Team, op. cit.

[17].       PR Neumann, op. cit. See also R Barrett, Foreign fighters in Syria, op. cit.

[18].       Analytical Support and Sanctions Monitoring Team, op. cit.; L Vidino, A Snetkov and L Pigoni, Foreign fighters: an overview of responses in eleven countries, CSS Study, Centre for Security Studies, ETH Zurich, 2014, p. 4, accessed 14 July 2015.

[19].       Analytical Support and Sanctions Monitoring Team, op. cit.; Byman and Shapiro, op. cit., pp. 1–8; Archik et al, pp. 8–10.

[20].      T Hegghammer, ‘Should I stay or should I go? Explaining variation in Western jihadists’ choice between domestic and foreign fighting’, American Political Science Review, 107(1), February 2013, pp. 1–15, ProQuest database, accessed 15 July 2015.

[21].       Ibid., p. 10.

[22].      Ibid., p. 6–13; Hegghammer, ‘The rise of Muslim foreign fighters, op. cit., pp. 57–59; Byman and Shapiro, op. cit., pp. 16–18; D Malet, ‘Foreign fighters playbook: what the Texas revolution and the Spanish civil war reveal about Al-Qaeda’, Foreign Affairs (online edition), 8 April 2014, accessed 17 July 2015.

[23].       Hegghammer, ‘Should I stay or should I go?’, op. cit., pp. 10–11.

[24].       Zammit, Australian foreign fighters, op. cit., p. 6.

[25].       Ibid., pp. 5–7; Hegghammer, ‘Should I stay or should I go?’, op. cit., p. 10; Barratt, op. cit., pp. 26–27.

[26].       Byman and Shapiro, op. cit., pp. 9–22; Zammit, Australian foreign fighters, op. cit., pp. 5–6; Barratt, op. cit., pp. 21–27.

[27].       There is a lack of consensus about terms such as radicalisation, de-radicalisation and disengagement. A useful delineation is provided by Vidino and Brandon, whereby de-radicalisation relates to an individual changing their views and ideology, whereas disengagement has the more modest and pragmatic aim of an individual ending involvement in a terrorist organisation or activities: L Vidino and J Brandon, Countering radicalization in Europe, ICSR, King’s College London, 2012, p. 8–10, accessed 15 July 2015.

[28].       Archick et al, op. cit., pp. 10–12; L Vidino et al, 2014, op. cit.; Byman and Shapiro, op. cit., pp. 26–27; Bakowski and Puccio, op. cit., pp. 6–9.

[29].       For brief overviews, see ABC, ‘Fact check: how does Australia’s plan to strip foreign fighters of citizenship compare to other nations?’, ABC News, updated 11 June 2015 and S Pillai, ‘Proposals to strip citizenship take Australia a step further than most’, The Conversation, 29 May 2015; both accessed 15 July 2015.

[30].       Immigration Act 2014 (UK), section 66 (amending section 40 of, and inserting section 40B into, the British Nationality Act 1981 (UK)), accessed 15 July 2015. For further details, see M Gower, Deprivation of British citizenship and withdrawal of passport facilities, Standard note, House of Commons Library, updated 30 January 2015; MJ Gibney, ‘The deprivation of citizenship in the United Kingdom: a brief history’, Immigration, Asylum and Nationality Law, 28(4), 2014, pp. 326–335, both accessed 15 July 2015.

[31].       M Gower, op. cit.; ABC, op. cit.; Bureau of Investigative Journalism (BIJ), ‘Citizenship revoked’, BIJ website, accessed 15 July 2015 (this is the homepage for an ongoing investigation being conducted by the BIJ and is updated regularly with new articles).

[32].       Ministry of Social Affairs and Integration (Denmark), ‘Deradicalisation—Targeted Intervention’, Ministry of Social Affairs and Integration website; Exit—Deutschland website; HAYAT—Deutschland website; all accessed 16 July 2015. For other EU country examples, see Vidino and Brandon, op. cit.; Ministry of Refugee, Immigration and Integration Affairs, The challenge of extremism: examples of deradicalisation and disengagement programmes in the EU, Ministry of Refugee, Immigration and Integration Affairs, October 2010, accessed 15 July 2015; R Butt and H Tuck, European counter-radicalisation and de-radicalisation: a comparative evaluation of approaches in the Netherlands, Sweden, Denmark and Germany, Institute for Strategic Dialogue, 2014, accessed 16 July 2015.

[33].       Ibid.; Briggs and Silverman, op. cit., pp. 42–44; E Braw, ‘Inside Denmark’s radical jihadist rehabilitation program’, Newsweek, 17 October 2014, accessed 16 July 2015.

[34].       Ministry of Refugee, Immigration and Integration Affairs (Denmark), ‘Denmark’s deradicalisation efforts’, factsheet, Ministry of Refugee, Immigration and Integration Affairs, updated August 2011; European Network of Deradicalisation, ‘Violence Prevention Network e.V.’, European Network of Deradicalisation website; both accessed 16 July 2015.

[35].       ASIO, op. cit., pp. 1–5. See further Department of Prime Minister and Cabinet (DPMC) and NSW Department of Premier and Cabinet (NSW DPC), Martin Place siege joint Commonwealth-New South Wales review, Australian and NSW Governments, January 2015, pp. 10–13, accessed 16 July 2015; Council of Australian Governments (COAG), Australia’s counter-terrorism strategy: strengthening our resilience, Commonwealth of Australia, 2015, pp. 1–4, accessed 23 July 2015.

[36].       T Abbott (Prime Minister) and G Brandis (Attorney-General), National Terrorism Public Alert level raised to high, media release, 12 September 2014, accessed 16 July 2015. COAG agreed to move to a revised National Terrorist Threat Advisory System on 23 July 2015: COAG, Communique, COAG Special Meeting, Canberra, 23 July 2015, accessed 23 July 2015.

[37].       Abbott, Magna Carta Lecture, op. cit. For some information on the characteristics of identified foreign fighters and supporters and their involvement in Syria and Iraq since 2011, including brief details of 54 individuals and profiles of 16, see A Bergin, M Clifford, D Connery, T Feakin, K Gleiman, S Huang, G Hutchinson, P Jennings, D Lang, A Long, C Murphy, S Roworth, R Turner and S Yasmeen, Gen Y jihadists: preventing radicalisation in Australia, Australian Strategic Policy Institute, Canberra, June 2015, accessed 22 July 2015.

[38].       ASIO, op. cit., p. 3. See also S Payne, ‘South Sudan the new frontier for Australian foreign fighters’, Special Broadcasting Service (SBS) News, 3 June 2015, accessed 16 July 2015.

[39].      J Bishop [Responder], ‘Motions: national security’, House of Representatives, Debates, 24 June 2015, pp. 7462–63, accessed 21 July 2015.

[40].      See for example M Schliebs, ‘Aussie fighter dies near ISIS HQ’, The Australian, 3 July 2015, p. 4 (about Reece Harding) and H Aston, ‘Mother learns son lost while saving others’, The Sydney Morning Herald, 4 March 2015, p. 9 (about Ashley Johnston); both accessed 16 July 2015.

[41].      Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 24 February 2015, pp. 153, 157–158, accessed 21 July 2015.

[42].      COAG, Australia’s counter-terrorism strategy: strengthening our resilience, op. cit., p. 3.

[43].       T Abbott (Prime Minister), Address to the 35th Singapore Lecture, Singapore, media release, 29 June 2015, accessed 16 July 2015.

[44].       Ibid.

[45].       Byman and Shapiro, op. cit., pp. 20–21.

[46].       Ibid.; R Barrett, op. cit., p. 22; Bergin et al, op. cit., p. 16; COAG, Australia’s counter-terrorism strategy: strengthening our resilience, op. cit., p. 3.

[47].       Zammit, Australian foreign fighters, op. cit., pp. 9–11.

[48].       Byman and Shapiro, op. cit., p. 20.

[49].       Ibid., p. 21; Zammit, Australian foreign fighters, op. cit., pp. 10–11.

[50].       Abbott, Magna Carta Lecture, op. cit.

[51].       Ibid. Operations have included, for example, Operation Appleby in Sydney, Operation Rising and Operation Amberd in Melbourne, and Operation Bolton in Brisbane. See Australian Federal Police (AFP), 15 people detained as part of major counter terrorism investigation, media release, 18 September 2014; AFP, Man in court after Operation Appleby arrest, media release, 10 January 2015; AFP and Victoria Police, Counter terrorism Operation Rising update, media release, 18 April 2015; AFP and Victoria Police, Joint Operation Amberd, media release, 9 May 2015; AFP and Queensland Police Service (QPS), Two Brisbane men arrested on terrorism-related offences, media release, 10 September 2014; AFP and QPS, Further charges laid in counter terrorism operation, media release, 17 October 2014; D Box, ‘More terror suspects caught in police net’, The Weekend Australian, 27 December 2014, p. 6; all accessed 16 July 2015.

[52].       ABC, ‘Terror suspect Abdul Numan Haider continued to stab fallen officer’, ABC News, 4 October 2014; ABC, ‘Sydney siege: two hostages and gunman dead after heavily armed police storm Lindt café in Martin place’, ABC News, updated 16 December 2014; both accessed 17 July 2014.

[53].       G Brandis (Attorney-General), Role of government in countering violent extremism and terrorist propaganda: opening address of the Ministerial meeting at Australia's Regional Summit to Counter Violent Extremism, Sydney, media release, 12 June 2015, accessed 16 July 2015.

[54].       Council of Australian Governments (COAG), Council of Australian Governments review of counter-terrorism legislation, Australian Government, Canberra, 2013, Attachment D, accessed 21 July 2015.

[55].       AFP, Man in court after Operation Appleby arrest, op. cit.; Box, op. cit.

[56].      UN Security Council, Security Council resolution 1373 (2001) [on threats to international peace and security caused by terrorist acts], S/RES/1373 (2001), 28 September 2001, accessed 21 July 2015.

[57].      The Government’s initial legislative response comprised the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003, Border Security Legislation Amendment Act 2002, Criminal Code Amendment (Anti-hoax and Other Measures) Act 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002, Security Legislation Amendment (Terrorism) Act 2002 and the Suppression of the Financing of Terrorism Act 2002; all accessed 21 July 2015.

[58].      Key measures were included in the Anti-Terrorism Act (No. 2) 2005, accessed 21 July 2015. For an overview of other relevant legislation enacted in the ten years from September 2001, see G Williams, ‘A decade of Australian anti-terror laws’, Melbourne University Law Review, 35(3), 2011, pp. 1136–76, accessed 21 July 2015.

[59].       National Security Legislation Amendment Act (No. 1) 2014; Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 ; Counter-Terrorism Legislation Amendment Act (No. 1) 2014; Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015; all accessed 13 July 2015. While the Government includes the last of these Acts when referring to its ‘tranches’ of national security legislation, access to telecommunications data, and the data retention scheme established by that Act, have much broader relevance across law enforcement.

[60].       M Biddington and C Barker, National Security Legislation Amendment Bill (No. 1) 2014, Bills digest, 19, 2014–15, Parliamentary Library, Canberra, 2014; C Barker, M Biddington, M Coombs and M Klapdor, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Bills digest, 34, 2014–15, Parliamentary Library, Canberra, 2014; C Barker, Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, Bills digest, 50, 2014–15, Parliamentary Library, Canberra, 2014; J Murphy and M Biddington, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, Bills digest, 89, 2014–15, Parliamentary Library, Canberra, 2015; all accessed 13 July 2015.

[61].       Barker et al, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, op. cit.

[62].      Australian Government, ‘Laws to combat terrorism’, Australian National Security website, accessed 20 July 2015.

[63].      Criminal Code Act 1995, accessed 20 July 2015.

[64].      Division 100 contains definitions relevant to Part 5.3.

[65].      Criminal Code, op. cit., subsection 102.1(2).

[66].      Ibid., subsection 102.1(3).

[67].      Australian Government, ‘Protocol for listing terrorist organisations’, Australian National Security website, accessed 21 July 2015.

[68].      Australian Government, ‘Listed terrorist organisations’, Australian National Security website, accessed 21 July 2015.

[69].      Criminal Code, op. cit., section 102.1(1).

[70].      Ibid., section 104.1. The definition of ‘engage in a hostile activity’ in subsection 117.1 (1) for the purposes of Part 5.5 (Foreign incursions and recruitment) is also used for the purposes of Part 5.3 (Terrorism).

[71].      Ibid., sections 104.2–104.5. The obligations, prohibitions and restrictions that may be imposed are listed in subsection 104.5(3).

[72].      Ibid., section 105.1.

[73].      Ibid., section 105.2 and Subdivision B of Division 105.

[74].      Australian Security Intelligence Organisation Act 1979, accessed 20 July 2015.

[75].       Ibid.

[76].      Crimes Act 1914, accessed 20 July 2015.

[77].      For other powers, see Australian Government, ‘Laws to combat terrorism’, op. cit.

[78].      For an overview of how this has evolved since 2001, see DPMC, Review of Australia’s counter-terrorism machinery, Commonwealth of Australia, Canberra, January 2015, pp. 2–9, accessed 21 July 2015.

[79].      National Counter-Terrorism Committee, National counter-terrorism plan, 3rd edition, Commonwealth of Australia, Canberra, 2012, accessed 21 July 2015.

[80].      In the Federal sphere, the latest White Paper dates to 2010: DPMC, Counter-terrorism white paper: securing Australia, protecting our community, Commonwealth of Australia, Canberra, 2010, accessed 21 July 2015.

[81].      COAG, Australia’s counter-terrorism strategy: strengthening our resilience, op. cit. p. v; COAG, Communique,, op. cit.

[82].      DPMC, Review of Australia’s counter-terrorism machinery, op. cit., pp. vi.; T Abbott (Prime Minister), Review of Australia’s counter-terrorism machinery for a safer Australia, media release, 23 February 2015; accessed 21 July 2015.

[83].      COAG, Australia’s counter-terrorism strategy: strengthening our resilience, op. cit. pp. 6–21.

[84].       C Barker, ‘Countering terrorism and violent extremism’, Budget review 2015–16, Research paper, 2014–15, Parliamentary Library, Canberra, May 2015, accessed 16 July 2015. See D Watt, ‘Defence budget overview’ in the same publication for spending on defence operations in Iraq and elsewhere in the Middle East.

[85].      T Abbott (Prime Minister) and G Brandis (Attorney-General), Counter-terrorism measures for a safer Australia, media release, 26 August 2014, accessed 21 July 2015. For details of other components see Barker, ‘Countering terrorism and violent extremism’, op. cit. and T Abbott (Prime Minister) and G Brandis (Attorney-General), New counter-terrorism measures for a safer Australia, media release, 5 August 2014, accessed 21 July 2015.

[86].      C Barker, Australian Government measures to counter violent extremism: a quick guide, Research paper series, 2014–15, Parliamentary Library, Canberra, 10 February 2015, accessed 21 July 2015.

[87].      DPMC, Review of Australia’s counter-terrorism machinery, op. cit., pp. 30–35.

[88].      Ibid., p. 35.

[89].      COAG, Australia’s counter-terrorism strategy: strengthening our resilience, op. cit., p. 16.

[90].      Abbott, Magna Carta Lecture, op. cit.; Abbott, Brandis and Dutton, Legislation to strip terrorists of citizenship, op. cit.; Abbott, Brandis and Dutton, Prime Minister’s transcript—joint press conference, Parliament House, Canberra, op. cit.

[91].       G Brandis (Attorney-General), Transcript of interview with Patricia Karvelas: RN Drive, media release, 12 June 2015; S Maiden, ‘New spy powers to fight extremists’, The Sunday Telegraph, 5 July 2015, p. 11; both accessed 13 July 2015.

[92].       Abbott, Magna Carta Lecture, op. cit. See also T Abbott (Prime Minister), Transcript of doorstop interview: Cairns, media release, 19 June 2015, accessed 13 July 2015.

[93].       Barker et al, op. cit., pp. 23–24; Foreign Evidence Act 1994, Part 3A, accessed 13 July 2015 (‘terrorism-related proceeding’ is defined in section 3 and includes but is not limited to terrorism and foreign incursions offences (including the new ‘declared areas’ offence) under Parts 5.3 and 5.5 of the Criminal Code).

[94].       Revised Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, pp. 167-169, accessed 21 July 2015.

[95].      COAG, Council of Australian Governments review of counter-terrorism legislation, op. cit., pp. 46–48; Attorney-General’s Department (AGD), Control orders and preventative detention orders annual report 2012–13, Australian Government, Canberra, 2013; AGD, Control orders and preventative detention orders annual report 2013–14, Australian Government, Canberra, 2014; both accessed 21 July 2015.

[96].      DPMC and NSW DPC, op. cit., p. 63; D Box and M McKenna, ‘Control orders used for raid pair’, The Australian, 20 December 2014, p. 1, accessed 21 July 2015.

[97].       Foreign Fighters Act, op. cit., Schedule 1; Counter-Terrorism Legislation Amendment Act (No. 1) 2014, Schedule 1, accessed 13 July 2015. For details, see Barker et al, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, op. cit. and Barker, Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, op. cit.

[98].      Criminal Code, op. cit., subsection 104.2(2), section 104.3 and paragraph 104.4(1)(c).

[99].      Ibid., section 104.1 and subsection 104.4(1).

[100].    Ibid., section 104.4 and Division 13 (see in particular section 13.2).

[101].    Ibid., subsection 104.5(3).

[102].    Australian Passports Act 2005, Subdivision B, Division 2 of Part 2 and section 22, accessed 13 July 2015.

[103].    Barker et al, op. cit., pp. 24–26; Australian Passports Act, op. cit., section 22A.

[104].    S Kimmorley, ‘Here’s what happens to the Australians who have had their passports cancelled in the Middle East’, Business Insider (online edition), 9 December 2014, accessed 13 July 2015.

[105].    B Saul ‘Plan to strip citizenship is simplistic and dangerous’, The Drum, 27 May 2015; A Lockyer and G Milad, ‘If blocked from returning home, where will Australia’s jihadists go?’, The Conversation, 9 September 2014; C Jones, ‘Abbott’s national security changes are unlikely to make us safer’, The Conversation, 23 Feb 2015; S Morris, ‘Citizenship-stripping and Abbott’s jihad on civil rightsThe Saturday Paper, 6 June 2015; all accessed 23 July 2015.

[106].    Saul, op. cit.

[107].    A Aly in S Morris, op. cit.

[108].    Lockyer and Milad, op. cit. On the role of foreign fighters in Al-Qaeda’s formation, see further: Malet, op. cit.; C Watts, ‘Countering terrorism from the second foreign fighter glut’, Small Wars Journal, 2009, accessed 17 July 2015; R Gunaratna, Inside Al Qaeda: global network of terror, Hurst and Company, London, 2002.

[109].    COAG, Australia’s counter-terrorism strategy: strengthening our resilience, op. cit., p. 12.

[110].    Morris, op. cit.; S Pillai, ‘There’s more to be lost than gained in stripping citizenship’, The Conversation, 24 February 2015; M McKenna, ‘Citizenship and its discontents’, The Monthly, July 2015, pp. 8–10; both accessed 17 July 2015.

[111].    Hegghammer, ‘Should I stay or should I go?’, op. cit., p. 13.

[112].    For a current and detailed work on this, see C Winter, The virtual ‘Caliphate’: understanding Islamic State’s propaganda strategy, Quilliam Foundation, July 2015, accessed 17 July 2015.

[113].    Bergin et al, op. cit., pp. 7, 15–21; Zammit, Australian foreign fighters, op. cit., p. 6; J Klausen, ‘Tweeting the jihad: social media networks of Western foreign fighters in Syria and Iraq’, Studies in Conflict and Terrorism, 38(1), 2015, pp. 1–22, accessed 22 July 2015.

[114].    M Khoury, ‘Reformed foreign fighters could smash ISIS lies’, The Point Magazine, March 2015; L Williams, ‘Fighting Muslim radicalisation’, The Saturday Paper, 16 May 2015; C Williams ‘How we can keep track of potential terrorists’, The Canberra Times, 15 January 2015, p. 5; SBS, ‘Government urged to use “valuable force” of “change-of-heart” jihadists’, SBS News, 21 May 2015; T Legrand, ‘We should be using returning foreign fighters against Islamic State’, The Drum, 20 May 2015; A Ashraf, ‘Foreign fighters: foreign to whom?’, Al Jazeera English, 27 October 2014; SBS, ‘“If you seek to come back, you’ll be jailed”, PM tells foreign fighters’, SBS News, 19 May 2015; all accessed 17 July 2015.

[115].    L Williams, op. cit.; Byman and Shapiro, op. cit.; R Richardson, Fighting fire with fire: target audience responses to online anti-violence campaigns, Australian Strategic Policy Institute, Canberra, December 2013, accessed 21 July 2015.

[116].    Legrand, op. cit.; Ashraf, op. cit.; C Williams, op. cit.

[117].    P Jennings in SBS, ‘“If you seek to come back, you’ll be jailed”, PM tells foreign fighters’, op. cit.

[118].    AGD, ‘International counter-terrorism measures’, AGD website, accessed 20 July 2015. For an overview of the relevant United Nations (UN) international legal instruments, see UN, ‘United Nations action to counter terrorism: international legal instruments’, UN website, accessed 20 July 2015.

[119].    UN, ‘United Nations action to counter terrorism: resolutions’, UN website; UN, ‘United Nations action to counter terrorism: Security Council resolutions and records of meetings’, UN website; both accessed 20 July 2015.

[120].    UNSC, Security Council resolution 2170 (2014), S/RES/2170 (2014), 15 August 2014, accessed 20 July 2015.

[121].    UNSC, Security Council resolution 2178 (2014), op. cit.

[122].    Ibid.

[123].    COAG, Australia’s counter-terrorism strategy: strengthening our resilience, op. cit., p. 12.

[124].    Saul., op. cit.

[125].    K Rubenstein, ‘Dual proposal is bad policy’, The Australian, 29 May 2015, p. 12; T Dick, ‘Citizenship a human right, not a gift you can have repossessed’, The Sydney Morning Herald, 18 February 2015, p. 18; A Zammit, ‘Revoking citizenship is pointless and absurd’, The Age (online edition), 30 May 2015; all accessed 20 July 2015.

[126].    Zammit, ‘Revoking citizenship is pointless and absurd’, op. cit.

[127].    DPMC, Review of Australia’s counter-terrorism machinery, op. cit., p. 35.

[128].    Explanatory Memorandum, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, op. cit., p. 1.

[129].    COAG, Australia’s counter-terrorism strategy: strengthening our resilience, op. cit., p. 16.

[130].    Abbott, Magna Carta Lecture, op. cit. See also Abbott , Brandis and Dutton, Prime Minister’s transcript—joint press conference, Parliament House, Canberra, op. cit.; T Abbott (Prime Minister), Transcript of press conference: Canberra: Our north, our future: a vision for developing North Australia; new measures to strengthen Australian citizenship, media release, 18 June 2015, accessed 21 July 2015.

[131].    D Wells, ‘Stripping citizenship: information gaps and unforeseen consequences’, The Interpreter, blog, 16 July 2015, accessed 21 July 2015.

 

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