MEDIA RELEASE: We cannot abandon rule of law and leave judgment of guilt to politicians

The jihadist movement and terrorism are forcing the federal government to wrestle with questions of citizenship, the rule of law, and the meaning of national sovereignty in a world becoming ever more tightly integrated through technology, trade, immigration (both legal and illegal), and the claims to authority of the United Nations and international law.

The notion of ‘nation’ as an entity with complete ‘sovereignty’ or control within its borders, and composed of ‘citizens’ owing allegiance to that entity was established nearly 370 years ago with the Treaty of Westphalia that followed the hideous 30 Years War in the 17th century. The seeds for rule of law were planted even earlier — 800 years ago next week — at the signing of the Magna Carta.

That’s the background. But the immediate and pressing issue is the integrity of Australian citizenship and its protection by domestic law.

There is little doubt that past immigration arrangements have been careless about the value and integrity of Australian citizenship. We have made citizens of some who hate us and who now kill wantonly here and overseas as Australian jihadis. This shames us all and it is clear that we must take more care in the future.

As for the present, there is no serious argument against the view that such people should be stripped of the citizenship they have mocked, despoiled and betrayed. But the crucial question is how this should be done.

It seems the government wants to manipulate a distinction between those who have sole Australian citizenship and those who have dual citizenship. But that is a secondary issue. Surely nothing could be done until either sole or dual citizens have been shown to have betrayed their citizenship by the conduct at issue? If the rule of law is to be upheld, guilt has first to be established for both types of citizen before any form of punishment or dismissal can be effected.

Although proving guilt may be difficult, that difficulty should not be finessed away by abandoning the rule of law and leaving judgment of guilt in the hands of a federal minister.

Barry Maley is a Senior Fellow at the Centre for Independent Studies, and author of Magna Carta: Talisman of Liberty, being published on June 15 to mark the 800^th anniversary of the Magna Carta signing. He is available for comment.