Clive Palmer just lost his WA border challenge — but the legality of state closures is still uncertain



original.

Anne Twomey, University of Sydney

Mining magnate Clive Palmer has lost his challenge to the closure of the Western Australian border in response to COVID-19. Palmer has also been ordered to pay costs.

While it is clear from the High Court’s order in Palmer v Western Australia that Palmer lost, it remains unclear whether the border closure was and remains valid.




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WA border challenge: why states, not courts, need to make the hard calls during health emergencies


The reason for the lack of clarity is because the High Court has not yet handed down its reasons, which may take weeks or months. In the meantime, all we have is its orders – and they are phrased in a rather peculiar and limited way.

What did the court decide?

The High Court was asked whether WA’s Emergency Management Act or its Quarantine (Closing the Border) Directions were invalid because they breached the Constitution by stopping people from crossing the state’s border.

Section 92 of the Constitution says the movement of people among the states shall be “absolutely free”. But the High Court has previously accepted it can be limited if it is reasonably necessary to achieve another legitimate end, such as the protection of public health.

In the Palmer case, the High Court gave a very limited answer to the questions it was asked. In relation to the Emergency Management Act it said that “on their proper construction”, sections 56 and 67,

in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of section 92 of the Constitution.

Both these sections are quite general in nature. Section 56 says the minister can declare a state of emergency in the whole of the state or a part of it. There is nothing on obvious that would appear to offend section 92 of the Constitution in each of its limbs.

Section 67 says during a state of emergency, certain officers may issue directions that prohibit the movement of persons within, into or out of an emergency area. On the face of it, it is not directed at the movement of people across state borders. However, if a state of emergency were issued for the entire state under section 56, then section 67 would potentially allow a direction to be made that would prevent people from entering or leaving WA.

High Court of Australia
Clive Palmer launched his challenge after WA closed its border in April.
Lukas Coch/AAP

The High Court’s qualification in the phrase “on their proper construction” is therefore important. This raises the question of how the High Court has interpreted section 67 and whether it has restricted its interpretation in a manner that accommodates section 92 of the Constitution. We will have to wait for the High Court’s reasons to learn this.

The court’s order in relation to the Quarantine Directions is more unusual. It says the exercise of this power under clauses 4 and 5 of the directions “does not raise a constitutional question”. This refers to an issue raised during the hearing. The argument, initially raised by Victoria, was that the validity of a direction made under a power conferred by an act will depend on whether the direction falls within the scope of that power in the act.




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If the section in the act that confers the power (in this case, section 67 of the Emergency Management Act) is constitutionally valid, then any direction that falls within that power will be valid too.

The real question, then, is whether the direction falls within the scope of the legislative power. This is not a constitutional question, but a question of administrative law. The High Court then said in its order that it had not been asked this question, so it did not need to answer it.

On the basis of this technicality, the High Court (or at least a majority of the Justices) concluded it was not necessary to address whether the actual directions that stop people going in or out of Western Australia were valid.

Does this mean more litigation?

As this case does not seem to have resolved whether or not the directions are valid, will there be more litigation? It is possible someone could challenge the directions, arguing this time that they do not fall within the scope of the authorising section in the legislation.

But such litigation would have to start from square one and so would take some time to determine. As it would not be a constitutional matter, it might have to be decided by a lower court first.

WA Premier Mark McGowan
WA Premier Mark McGowan celebrated the High Court result on Friday.
Richard Wainwright/AAP

Further, before initiating any such litigation, it would be important to read the High Court’s reasons, which may not be produced for some time. Those reasons will tell us about the scope of the legislative provision, which will be essential to know before any challenge to the directions made under it could proceed.

Hopefully, by the time we get to that point, there will be no need for such litigation because no such directions will exist, if the pandemic continues to ease in Australia.




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But it does mean we may be left with inadequate guidance about such matters for the future, which would be unfortunate given the cost and time taken with this litigation. Perhaps the court’s reasoning about the interpretation of section 67 of the Emergency Management Act will give us sufficient understanding about the operation of section 92 of the Constitution and the tests applicable to border closures in a pandemic. But that remains to be seen.

Victorian lockdown challenge also rejected

In a busy day for the High Court on Friday, it also threw out hotelier Julian Gerner’s challenge to Melbourne’s lockdown laws.




Read more:
Can a High Court challenge of Melbourne’s lockdown succeed? Here’s what the Constitution says


Gerner’s challenge, to be successful, would have required the High Court to find an implied freedom of movement in the Constitution.

This would have opened up all sorts of other laws to challenge and been condemned by conservatives as judicial activism. The court was so unimpressed by the argument that it unanimously rejected it on the spot, without even needing to hear Victoria’s response.

The end of the case was swift and brutal. It is unlikely this point will be raised again before the court.The Conversation

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Can a High Court challenge of Melbourne’s lockdown succeed? Here’s what the Constitution says



James Ross/AAP

Luke Beck, Monash University

Just days after Victorian Premier Dan Andrews signalled the state won’t be ready for a major loosening of COVID-19 restrictions next week as planned, a legal challenge is expected to be filed in the High Court to force the government to act more quickly.

The Age reports prominent Melbourne hotelier Julian Gerner is launching the challenge against Melbourne’s strict lockdown and has hired leading barristers Bret Walker SC and Michael Wyles QC to represent him.

Gerner argues the restrictions on people’s movements beyond five kilometres from their homes, as well as the need to have a permit to travel to work, are a disproportionate response to the coronavirus threat and violate the implied freedom of movement in the Constitution to undertake personal, family, recreational and commercial endeavours.

This is a bold argument. The High Court has never accepted the Constitution protects freedom of movement within states.

How does this case differ from Clive Palmer’s case?

Clive Palmer is currently challenging Western Australia’s tough border closure, arguing it contravenes section 92 of the Constitution, which says

trade, commerce and intercourse among the states … shall be absolutely free.

Palmer is challenging restrictions on movement across state boundaries on the basis of an express provision of the Constitution.

By contrast, Gerner is challenging restrictions on movement within a single state on the basis of an implication he says can be found in the Constitution, rather than on any express provision.

Palmer’s case is due to be heard in the High Court in early November.
Dave Hunt/AAP



Read more:
WA border challenge: why states, not courts, need to make the hard calls during health emergencies


How can freedoms be “implied” into the Constitution?

The Constitution expressly protects only a few freedoms in Australia, such as trial by jury for federal indictable offences and a narrow guarantee of freedom of religion.

Laws are considered invalid if they contradict the express terms of the Constitution such as these. But laws can also be ruled invalid if they impede the functioning of systems set up by the Constitution. This is how “implied” freedoms arise.




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The most prominent example is the implied freedom of political communication. There is nothing in the Constitution saying expressly that Australians have freedom of political communication.

But the Constitution does expressly say parliamentarians must be “chosen by the people”.

This guarantee is vital because it provides for an implied freedom of expression on matters relating to politics and government. If this freedom didn’t exist, then the people would not be able to freely choose their parliamentarians.

Using this logic, the High Court has ruled restrictions on the freedom of political communication are invalid because they impede the functioning of the political system set up by the Constitution.

For example, the High Court has struck down NSW laws that banned unions from making political donations to the state Labor Party because it limited the ability of the party to run political advertising.

What has the High Court said about freedom of movement?

Freedom of movement for the purposes of freedom of political communication — for example, to take part in a protest — would be protected by the Constitution, as part of the implied freedom of political communication.

However, Gerner seems to be arguing the Constitution protects freedom of movement more generally.

Individual justices have agreed with this idea in the past. In the 1970s and ‘80s, High Court Justice Lionel Murphy said in a number of cases he believed the Constitution guarantees freedom of movement generally.




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States are shutting their borders to stop coronavirus. Is that actually allowed?


For example, Murphy said in a 1986 case that freedom of movement “in and between every part” of Australia is fundamental to a democratic society and necessary for the operation of the federal government and state constitutions. Murphy also said that freedom of movement is

a necessary corollary of the concept of the Commonwealth of Australia.

Justice Mary Gaudron said something similar in a 1992 case:

The notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement.

However, a majority of the High Court has never accepted there is an implied freedom of movement in the Constitution.

Police have cracked down on anti-lockdown protests in recent weeks.
Erik Anderson/AAP

What happens next?

Two hurdles need to be overcome for Gerner’s challenge to succeed.

First, he would need to persuade the High Court the Constitution really does protect freedom of movement generally. This won’t be easy.

Second, he needs to persuade the High Court the Melbourne lockdown is a disproportionate limitation on freedom of movement. This may require a separate hearing in a lower court to hear expert public health evidence about what is necessary to protect public health.

This kind of separate hearing happened in Palmer’s WA border closure case. This will take some time.

There is also the possibility the Victorian government will relax the lockdown just before any High Court hearing starts.

This is what happened after a legal challenge was filed with the Victorian Supreme Court arguing Melbourne’s curfew was imposed without following the correct legal procedure.

The government abolished the curfew the day before the case was due to start. Its lawyers showed up to court arguing the case should not go ahead because the issue was now merely hypothetical.

While it is not beyond the realm of possibility, Gerner faces formidable obstacles to succeed with his challenge. I wouldn’t be holding my breath the High Court declares the existence of an implied freedom of movement anytime soon.The Conversation

Luke Beck, Associate Professor of Constitutional Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Morrison government accepts Victorian closure but won’t budge on High Court border challenges


Michelle Grattan, University of Canberra

Scott Morrison has repeatedly and vociferously championed keeping state borders open.

But on Monday, Morrison was forced to change course, agreeing, in a hook up with premiers Daniel Andrews and Gladys Berejiklian that the Victorian-NSW border should be closed.

In a somewhat Jesuitical distinction, Morrison said they had agreed “now is the time for Victoria to isolate itself from the rest of the country. What’s different here [is] this isn’t other states closing their borders to Victoria”.

Deputy Chief Medical Officer Michael Kidd said later “the Commonwealth accepts the need for this action in response to containing spread of the virus”.

But, Kidd said, the Australian Health Protection Principal Committee – the federal-state health advisory body so often invoked by Morrison – “was not involved in that decision”.

“The AHPCC does not provide advice on border closures,” Kidd added.

Borders have always been a strictly state matter.




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Even during the high stage of the pandemic, NSW and Victoria kept their border open, unlike Queensland, South Australia, Western Australia and Tasmania.

Monday’s decision to close the border from Tuesday night underlines that we are staring at a dangerous new phase in the evolution of the COVID crisis.

The latest Victorian tally of 127 new cases was a record for the state. Kidd said: “The situation in Melbourne has come as a jolt, not just for the people of Melbourne but people right across Australia who may have thought that this was all behind us. It is not.

“The outbreak in Victoria is a national issue. We are all at risk from a resurgence of COVID-19.”

If the Victorian situation can’t be brought under control quickly – and conditions in Melbourne are complicated, even chaotic – the country could face a new bleak outlook on the health front, with a substantial risk of the virus ticking up elsewhere, regardless of other states keeping out Victorians, and an even deeper than anticipated recession.

Borders have been a source of division among governments from early on.

In particular Queensland premier Annastacia Palaszczuk – now reopening her state’s borders from this Friday though excluding Victorians – found herself under attack from the federal government and also from NSW.




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As well, both Queensland and WA face challenges from Clive Palmer in the High Court over the constitutionality of their border closures. There’s also another case being brought by Queensland tourism operators.

The High Court has sent the three cases to the federal court to look at certain aspects. The WA matter will be before that court on July 13 and 14.

The constitution provides for free trade and intercourse between the states. The key issue is “proportionality” – whether keeping a border closed is reasonable on health grounds at a particular point of time.

The Morrison government, consistent with the Prime Minister’s argument from the get go, is intervening in the cases to argue the borders should have been opened.

WA premier Mark McGowan on Monday was quick to use the Victorian development to call on Morrison to pull out, saying that in light of the Victoria-NSW closure “I’ve asked the Prime Minister to formally withdraw [federal government] support from Clive Palmer’s High Court challenge.

“It does not make sense for the federal government to be supporting a border closure between NSW and Victoria but on the other hand challenging Western Australia’s border in the High Court.

“Quite frankly, the legal challenge, and especially the Commonwealth involvement in it, has now become completely ridiculous.”

But the federal government is refusing to take a step back.




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Attorney-General Christian Porter noted the challenges were not being brought by the Commonwealth, and said it was the right of any citizen to take legal action if they believed “their basic rights of freedom of interstate movement are being disproportionately taken from them”.

“The Commonwealth has intervened to put evidence and views on the situation … the Court would normally expect the Commonwealth to be involved, given the importance of the issues raised.”

Porter said the Commonwealth’s intervention was to provide its view on whether, constitutionally, border closures were permitted in certain circumstances and not others.

“Clearly the courts will be required to consider whether, in determining these specific cases, border restrictions were proportionate to the health crisis at specific points in time as Australia dealt with the immediate and longer-term impact of the COVID-19 pandemic.

“The Court would expect to hear from the Commonwealth on those types of significant constitutional questions.”

Whatever the legal logic, to be endorsing the Victorian closure but arguing against other states’ abundant caution may be a complicated proposition to defend in the court of public opinion.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Michael McCormack’s battle to hold off a second shot from Joyce’s locker


Michelle Grattan, University of Canberra

Scott Morrison dodged a bullet when the Nationals clung on to Michael McCormack. There was palpable relief when the news came through to the Liberals. “We still have a Coalition,” one MP was heard to say during the Liberal party meeting.

But it had been the Prime Minister who created the circumstances for Barnaby Joyce to get his gun out of the cupboard.

If Morrison hadn’t been in such a politically weak position, due to his summer missteps, he’d probably have brazened out the sports rorts affair.

Morrison didn’t force Bridget McKenzie from cabinet because she skewed the grants scheme – for which she deserved sacking.




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He acted because the price of keeping her became too high. But then suddenly the cost of ditching her skyrocketed when Joyce seized the moment. Morrison found he had destabilised the deputy prime minister he desperately needs to keep in place.

How things will pan out now is the unanswerable question. Of course no one believes Joyce’s protestation that “I support the vote of the [party] room”. Joyce can’t bear not being the macho top dog and he and his ally Matt Canavan – self-exiled from cabinet and a huge loser from the day – will continue to create trouble for McCormack.

The Nationals don’t release their voting numbers. McCormack people claim he had a healthy margin; the Joyce camp says they were line ball. If McCormack’s backers are right the secrecy harms him, fuelling uncertainty and the opportunity for mischief.

The easy consensus is McCormack must “lift his game”. Might as well tell a jogger to become a sprinter. McCormack isn’t the worst of leaders but he’s never going to be more than average.

And having acquired the reputation of a poor performer, he can’t win. Thus he’s criticised for having a low profile when Morrison was in Hawaii. But could he have raised it when the prime minister’s office was trying to hide their boss’s holiday?

The rebel (for want of a better description) Nats attack McCormack for not standing up to the Liberals, in particular to Morrison. They seek a more distinctive Nationals branding.

Now this is a real issue. A well-functioning National party has to strike a balance within the Coalition between, if you like, growling and purring. Each Nationals leader must find a sweet spot. Assertive but supportive in the government’s inner sanctums. In the electorate, distinctive while also a team player.

But if McCormack follows the wishes of the Nationals to be more aggressive, this carries its potential dangers. On the flip side of that coin is “division”, a bad look for the government as a whole.

McCormack might be a pushover but Morrison has not been sensitive to their mutual interest in the Nationals’ profile. John Howard gave them a few wins, and recognition. Morrison tends to occupy whatever space is available. His very personal central role on drought issues, for example, has overshadowed the Nationals on their home ground.

If Morrison wants to prop up McCormack he needs to pump his tyres. As former Nationals senator John (“Wacka”) Williams told Sky, there was a message in Tuesday’s events for Morrison: “Don’t make the Nationals irrelevant”. The Nationals had to be treated with respect and get some pats on the back, Williams argued.

The Nationals’ schism triggered a reminder that Morrison is in a no win situation internally on climate change policy, as he faces an increasing need to nuance it.

In Tuesday’s Coalition parties meeting (coming immediately after the vote) a bevy of Nationals – Joyce, Canavan, George Christensen and David Gillespie – sent hardline messages on climate among talk of regional jobs and industry. Joyce said some people were trying to push their hobby horse issues out of the fire tragedies. To one Liberal source, these outpourings from the Nationals’ losing side were a bit weird and not very coherent.

They were met by a counter from some moderate Liberals. Earlier, in the separate Liberal party meeting, Queenslander Andrew Laming criticised those who went on policy “solo flights” on climate. The government’s policy was based on the science, which had been overwhelmingly accepted, Laming said – to contest the science undermined the policy.

McCormack’s next test is immediate – recrafting his frontbench. He has two cabinet vacancies, with Victorian Darren Chester expected to fill one.

What happens with the key resources portfolio vacated by Canavan will be crucial, given the coal issue and energy battles. Whether McCormack should have invited Canavan back is a moot point. Canavan (a loud voice for the coal industry) has a sharp policy mind; also, he might have been less trouble for McCormack if still on the frontbench than rampaging round the backbench.

Among the complexities of the reshuffle is that with the fall of McKenzie and Canavan the Nats have no Senate minister, but the remaining three senators (all women) are parliamentary newcomers. Still, one of these women will surely be in line for promotion, at the least to an assistant minister. McCormack sources believe all six women in the 21-member party voted for him; certainly most did.

The significance of the Nationals new deputy, David Littleproud, should not be overlooked in considering the future. Littleproud is competent, ambitious and articulate. He was frustrated at having his portfolio sliced back after the election.

His presence could assist McCormack. At 43, he has plenty of time and, in the National party tradition, an incentive to support his leader and inherit the mantle rather than trying to snatch it.

But if McCormack can’t survive until the election, the party would be better off turning to Littleproud than to Joyce, who would carry a maximum risk factor, not least for Morrison.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australian media regulators face the challenge of dealing with global platforms Google and Facebook



‘Google and Facebook are global companies, headquartered in the US, for whom Australia is a significant but relatively small market.’
Shutterstock/Roman Pyshchyk

Terry Flew, Queensland University of Technology

With concerns growing worldwide about the economic power of digital technology giants such as Google and Facebook, there was plenty of interest internationally in Australia’s Digital Platforms Inquiry.

The Australian Competition and Consumer Commission (ACCC) inquiry was seen as undertaking a forensic account of market dominance by digital platforms, and the implications for Australian media and the rights of citizens around privacy and data protection.

The inquiry’s final report, released last month, has been analysed from perspectives such as competition policy, consumer protection and the future of journalism.




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But the major limitation facing the ACCC, and the Australian government, in developing new regulations for digital platforms is jurisdictional authority – given these companies are headquartered in the United States.

More ‘platform neutral’ approach

Among the ACCC’s 23 recommendations is a proposal to reform media regulations to move from the current platform-specific approaches (different rules for television, radio, and print media) towards a “platform-neutral” approach.

This will ensure comparable functions are effectively and consistently regulated:

Digitalisation and the increase in online sources of news and media content highlight inconsistencies in the current sector-specific approach to media regulation in Australia […]

Digital platforms increasingly perform similar functions to media businesses, such as selecting and curating content, evaluating content, and ranking and arranging content online. Despite this, virtually no media regulation applies to digital platforms.

The ACCC’s recommendations to harmonise regulations across different types of media draw on major Australian public enquiries from the early 2010s, such as the Convergence Review and the Australian Law Reform Commission’s review of the national media classification system. These reports identified the inappropriateness of “silo-ised” media laws and regulations in an age of digital convergence.




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What Australia’s competition boss has in store for Google and Facebook


The ACCC also questions the continued appropriateness of the distinction between platforms and publishers in an age where the largest digital platforms are not simply the carriers of messages circulated among their users.

The report observes that such platforms are increasingly at the centre of digital content distribution. Online consumers increasingly access social news through platforms such as Facebook and Google, as well as video content through YouTube.

The advertising dollar

While the ACCC inquiry focused on the impact of digital platforms on news, we can see how they have transformed the media landscape more generally, and where issues of the wider public good arise.

Their dominance over advertising has undercut traditional media business models. Online now accounts for about 50% of total advertising spend, and the ACCC estimates that 71 cents of every dollar spent on digital advertising in Australia goes to Google or Facebook.

All media are now facing the implications of a more general migration to online advertising, as platforms can better micro-target consumers rather than relying on the broad brush approach of mass media advertising.

The larger issue facing potential competitors to the digital giants is the accumulation of user data. This includes the lack of transparency around algorithmic sorting of such data, and the capacity to use machine learning to apply powerful predictive analytics to “big data”.

In line with recent critiques of platform capitalism, the ACCC is concerned about the lack of information consumers have about what data the platforms hold and how it’s being used.

It’s also concerned the “winner-takes-most” nature of digital markets creates a long term structural crisis for media businesses, with particularly severe implications for public interest journalism.

Digital diversity

Digital platform companies do not sit easily within a recognisable industry sector as they branch across information technology, content media, and advertising.

They’re also not alike. While all rely on the capacity to generate and make use of consumer data, their business models differ significantly.

The ACCC chose to focus only on Google and Facebook, but they are quite different entities.

Google dominates search advertising and is largely a content aggregator, whereas Facebook for the most part provides display advertising that accompanies user-generated social media. This presents its own challenges in crafting a regulatory response to the rise of these digital platform giants.

A threshold issue is whether digital platforms should be understood to be media businesses, or businesses in a more generic sense.

Communications policy in the 1990s and 2000s commonly differentiated digital platforms as carriers. This indemnified them from laws and regulations relating to content that users uploaded onto their sites.

But this carriage/content distinction has always coexisted with active measures on the part of the platform companies to manage content that is hosted on their sites. Controversies around content moderation, and the legal and ethical obligations of platform providers, have accelerated greatly in recent years.

To the degree that companies such as Google and Facebook increasingly operate as media businesses, this would bring aspects of their activities within the regulatory purview of the Australian Communication and Media Authority (ACMA).

The ACCC recommended ACMA should be responsible for brokering a code of conduct governing commercial relationships between the digital platforms and news providers.




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This would give it powers related to copyright enforcement, allow it to monitor how platforms are acting to guarantee the trustworthiness and reliability of news content, and minimise the circulation of “fake news” on their sites.

Overseas, but over here

Companies such as Google and Facebook are global companies, headquartered in the US, for whom Australia is a significant but relatively small market.

The capacity to address competition and market dominance issues is limited by the fact real action could only meaningfully occur in their home market of the US.

Australian regulators are going to need to work closely with their counterparts in other countries and regions: the US and the European Union are the two most significant in this regard.The Conversation

Terry Flew, Professor of Communication and Creative Industries, Queensland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

High Court challenge to Treasurer Josh Frydenberg under section 44


Michelle Grattan, University of Canberra

The citizenship provision of the Constitution’s section 44 has raised its head again, with the eligibility of Treasurer Josh Frydenberg being challenged by an elector in his Kooyong seat.

Michaal Staindl has filed a petition with the High Court, which sits as the Court of Disputed Returns, alleging Frydenberg is ineligible “because he is a citizen of the Republic of Hungary”.

The petition says

The respondent’s mother arrived in Australia in 1950 in possession of a valid passport, inferred to be a valid Hungarian passport. This indicates that she continued to be a citizen of Hungary after 1948.

Pursuant to the law of Hungary, all children born to the respondent’s mother are a citizen of Hungary from the time of their birth and in the premise, the respondent is a citizen of Hungary

Staindl told Guardian Australia he was pursuing the action against Frydenberg, whom he knew, because “he’s consistently betrayed me, the electorate and the country on climate change”.

The Guardian reported that Staindl “said if Frydenberg shows evidence he is not Hungarian he could drop the case”; otherwise, he said, he would “see it through”.

Under Section 44, a person cannot sit in the federal parliament if he or she is “under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”.

In his “statement of member’s qualifications relating to section 44 and 45 of the constitution”, posted on Wednesday, Frydenberg records that his mother – who arrived in Australia as a refugee – was a Hungarian citizen between 1943 and 1948.

Frydenberg said “I have clear legal advice that I do not hold citizenship of another country.”

Section 44, which has several prohibitions, cut a swathe through the last parliament, overwhelmingly on citizenship grounds, hitting Coalition, Labor, and crossbench parliamentarians and triggering multiple byelections.

Although Frydenberg’s situation was canvassed during the previous term Labor backed off, given his mother had escaped the Holocaust.

Frydenberg, in comments in the last term, said his mother had arrived stateless. “It is absolutely absurd to think that I could involuntarily acquire Hungarian citizenship by rule of a country that rendered my mother stateless,” he said then.

Separately, Frydenberg’s eligibility is being challenged under the Electoral Act over Liberal party Chinese-language signs. This challenge is being brought by Oliver Yates, who ran as an independent against Frydenberg. It is claimed the signs were likely to have misled voters into thinking that to cast a valid vote they had to put the figure 1 beside the Liberal candidate.

A similar challenge over Chinese-language signs has been brought by a Chisholm voter against the new Liberal MP for Chisholm, Gladys Liu.

The ALP is not involved in the challenges.

The ALP’s acting national secretary Paul Erickson said in a statement that Labor was “disappointed by the tactics employed by the Liberal Party at the election, which went well beyond the accepted bounds of a vigorously contested campaign – especially in the divisions of Chisholm and Kooyong.

“The Chinese-language signs used by the Liberal Party in those contests were clearly designed to look like official Australian Electoral Commission voting instructions using the AEC colours, for the clear purpose of misleading Mandarin and Cantonese-speaking voters into voting for the Liberal Party,” he said.

But while there was a strong case that the signs breached the Electoral Act Labor was not seeking to overturn the results in Chisholm and Kooyong, given the cost and time involved, Erickson said.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Explainer: what are the media companies’ challenges to the AFP raids about?


Rebecca Ananian-Welsh, The University of Queensland

In the first week of June, the AFP raided the home of News Corp journalist Annika Smethurst and the ABC’s Sydney headquarters.

The raids concerned stories published over a year earlier, based on documents leaked from the Department of Defence. This week, the ABC and News Corp launched separate legal challenges to those raids. As David Anderson explained, the ABC is challenging the warrant “on several technical grounds that underline the fundamental importance of investigative journalism and protection of confidential sources”.




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The ABC commenced proceedings in the federal court, whereas News Corp took its challenge directly to the High Court. Nonetheless, both cases will raise similar legal issues, with press freedom at the heart of each challenge.

Both the ABC and News Corp are arguing that the AFP warrants infringe the “implied freedom of political communication” protected by the Australian Constitution. This challenge sets national security and press freedom against one another and could lead to groundbreaking developments in constitutional law.

But a closer look reveals the thinness of the implied freedom as a true protection for press freedom and the need for clearer protections.

The Australian First Amendment? The implied freedom of political communication

The Australian Constitution contains very few rights. None resemble the US Constitution’s First Amendment which protects, among other things, free speech and a free press.

In 1992, the High Court read between the lines of our Constitution to hold that it protects the free flow of political communication. This implication was justified as necessary to protect our system of representative and responsible government and, specifically, to enable voters to make an informed choice at elections.

The implied freedom is not a right to free speech. First, it only protects political communication, not speech generally. Secondly, it is not a personal right that may be wielded against the government. Instead, the implied freedom is a limit on legislative power, and not an absolute one at that. This means the Constitution only prohibits Commonwealth, state and territory governments from passing legislation that unjustifiably limits political communication.

In recent High Court decisions, safe access zones around abortion clinics were upheld as justified restrictions on political communication, and in NSW, caps on third party political donations were struck down as unjustified restrictions.

The courts will consider three questions when they determine whether the law that supported the AFP raids violates the implied freedom. It is far from clear whether the media organisations’ challenges will pass this three-stage test.

Step 1: A burden on political communication?

The first question is whether the law burdens (restricts) political communication. In this case, the burden is unclear. The warrants were issued to further investigations into government leaks and the handling of classified information, but the leaks had happened and the stories published over a year earlier. In this sense, the political communication had run its course unhindered. If no burden on political communication is established then the challenge will fail.

On the other hand, the execution of the warrants is almost certain to stifle public interest reporting. The raids may deter journalists from investigating and publishing stories based on classified materials, even where they reveal corruption or misconduct.

Even more seriously, the raids will deter potential whistleblowers from speaking out. This impact may be too vague for the High Court to engage with – after all, how could a lawyer present evidence of a general chilling effect? Nonetheless, it is a serious and severe consequence of police crackdowns on media, with a direct impact on each voters’ capacity to make a true and informed choice at the ballot box.

Step 2: A legitimate purpose?

If there is a burden on political communication, the second stage of the test will ask whether the burden is for legitimate purpose – that is, a purpose compatible with our system of government.

While some may criticise the AFP raids as reflecting an illegitimate purpose of targeting journalism critical of the government, the warrants also undoubtedly had a legitimate aim: the maintenance of national security by ensuring the integrity of government secrets.

Step 3: A proportionate measure?

This third stage of the test is the trickiest. It asks whether the restriction on political communication is justified and proportionate in light of its legitimate purpose. Is it tailored to that purpose? Were there alternative, less-restrictive measures that could have been adopted? In this kind of balancing exercise, reasonable minds can, and will, differ.

National security is a serious concern that goes to the very existence of the nation. It is universally accepted that some rights and freedoms must bend to the security of the nation.

Press freedom, on the other hand, including source confidentiality and the capacity to report on government misconduct, is critical to the rule of law and our democratic system. The courts will be faced with the question of when national security justifies the erosion of press freedom, and when it does not. This is no easy or predictable task.

In the context of the AFP raids, the present threat to national security posed by the published articles appears to be weak. On one view, the burden on political communication was severe and arguably unjustified, provided the court accepts the chilling effect that the raids will have on journalists and whistleblowers.

Alternatively, the limit on communication may be nonexistent, as the raids didn’t prevent the stories from being published. There are likely to be further interests and facts that weigh into this balance.

On available information, it is only clear the ABC and News Corp will face a number of complex and unpredictable hurdles in convincing a court that the warrant powers violate the Constitution.

The protection of press freedom

The implied freedom of political communication serves an important purpose in protecting political speech from unjustified infringement. Its capacity to protect press freedom remains untested before the High Court, and this challenge presents a golden opportunity for the court to recognise the place of the fourth estate within our constitutional framework.

But the implied freedom is not a right to free speech or a free press. It hinges on the concept of “justification”, and when national security is placed on the scales it is difficult to find a counterweight to meet it. Hence national security is regularly invoked to justify infringements of our basic rights and freedoms, and it is difficult to know how and when these infringements are unnecessary.




Read more:
Media raids raise questions about AFP’s power and weak protection for journalists and whistleblowers


Robust protection of press freedom in Australia is unlikely to be achieved through the interpretation of a Constitution that makes no reference to the fourth estate, freedom of speech, the rule of law, or other basic rights or freedoms. Clearer protections are needed. This could take the form of legislative recognition of press freedom.

Charters of Rights such as those in Victoria, the ACT and Queensland also operate to ensure basic freedoms are taken into account, not just in court but in parliament and across all public sector decision-making. This approach has clear advantages over the technical and unpredictable application of implied constitutional freedoms months after the event.

In the absence of these kinds of reforms at a national level, we wait to see if the High Court will once again read between the lines of our Constitution and recognise a central place for the free press in Australia.The Conversation

Rebecca Ananian-Welsh, Senior Lecturer, TC Beirne School of Law, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

How to challenge racism by listening to those who experience it


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People across the world paid their respects to those who lost their lives during the terror attack in Christchurch.
Andy Rain/EPA, CC BY-SA

Mohan Jyoti Dutta, Massey University

The terrorist attack in Christchurch was an expression of racist hatred that is being disseminated systematically across the globe by some media, think tanks and grassroots groups.

To actively challenge and dismantle racism, we need to create communication platforms for people who experience it. At the Center for Culture-centered Approach to Research and Evaluation (CARE), we have developed an activist-in-residence programme as a framework for moving voices from the margins to the centre.

This month, Māori activist Tame Iti completed his residency.




Read more:
Christchurch mosque shootings must end New Zealand’s innocence about right-wing terrorism


Global network of racist Islamophobia

The Christchurch terror attack is a manifestation of Islamophobia, cultivated by images, disinformation and false narratives that are anchored in the portrayal of a Muslim threat to civilisations, especially western civilisations.

An entire industry has built up to manufacture and amplify hate. It is funded by a small network of foundations, political interests and private donors. They profit from the circulation of hate and propel Islamophobia for political and economic gains.

Hate generates ratings. It captures viewers, justifies neocolonial policies and spawns an entire industry of hate products such as video games and music videos. Individual acts of racist violence have to be seen within this wider context.

Manufacturing a threat

The attack is part of a global network of racist terror that is often legitimised by the structures of the state. We need to examine the close relationship between donors and political parties and grassroots right-wing groups that circulate hatred toward Muslims.

Media images are rife with racist narratives of the Muslim threat, often juxtaposed with narratives of threats posed by migrants and refugees.

The alleged perpetrator of the Christchurch attack referred to US President Donald Trump as an inspiration for the fight to protect white supremacy. This offers an insight into the global reach of the Islamophobia industry. In several speeches on his campaign trail, Trump amplified the trope of Sharia law, stating that Muslims would have to denounce their commitment to Sharia before being granted immigration visas to the US.




Read more:
Explainer: what is ‘sharia law’? And does it fit with Western law?


Similarly, politicians of various right-wing parties across western democracies have routinely circulated the image of the Muslim migrant threatening western civilisation. In the US, groups such as ACT for America, led by Brigette Gabriel with over 750,000 members, manufacture the threat of the Muslim “other” to organise communities around hatred of Islam. The group positions itself as a national security organisation, drawing up accounts of unwed Muslim migrant and refugee men who threaten white purity and exaggerating links between the influx of Muslim refugees and the threat of rape. Similarly, the image of the Muslim terrorist is often deployed as a heuristic for cultivating the fear of Muslims.

The effects of hatred

The effects of racism are documented in a substantive body of research. A study comparing reliance on media versus personal contact for information about Muslims found that media spread stereotypes, negative emotions and support for harmful policies. The opposite was found for those who relied on personal contact to learn about Muslims.

The study also observed that perceptions of Muslims as aggressive were associated with support for public policies harming Muslims, including military action in Muslim countries and restricting civil liberties of Muslims. Similar studies have observed that white Americans who rely on media as the primary source of information about African Americans – as opposed to personal contact – are more likely to express stereotypical beliefs and hold prejudicial attitudes.

In our own ethnographic work with African Americans in Gary, Indiana, we have documented the effects of racist attitudes and behaviours on the well-being of communities of colour. Racist discourse not only creates continued stress for people of colour, but has a direct impact through threats of violence. The colonial context of New Zealand is embedded in racist ideology that has an impact on the health and well-being of Māori.

Images of the Muslim “other” help sell entertainment programmes and video games, political campaigns cultivating the narrative of “white genocide” and weapons and new technologies sold by the arms industry.

Transforming Islamophobia through voice

Our research suggests that giving voice to people who experience racism forms the basis for a transformation of racist and colonialist structures. A commitment to challenging the industry of hatred targeting Muslims requires regulation and democratic processes. Everyday forms of normalised Islamophobia need to be challenged as much as extremist articulations of “white genocide”.

Acknowledging racism is the first step toward countering hate. New Zealand’s Prime Minister Jacinda Ardern responded to the attacks by saying “this is not us”. But we can only have a conversation about racism if we acknowledge the white privilege that enables and upholds it.

We need to create opportunities for face-to-face interactions with Muslims in societies that often normalise racism. This means listening to voices that express the uncomfortable experiences of racism.

Recognising the links between racism toward Muslims, immigrants and indigenous peoples is the first step toward dismantling it and beginning a process of decolonising anti-racist interventions.The Conversation

Mohan Jyoti Dutta, Dean’s Chair Professor, Massey University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Everyday racism fuels prejudice and hate. But we can challenge it



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Establishing relationships with people who are different from ourselves is one of the best approaches to reducing prejudice.
(AAP/Jono Searle, CC BY-ND

Kumar Yogeeswaran; Chris G. Sibley, University of Auckland; Danny Osborne, University of Auckland; Marc Wilson, Victoria University of Wellington, and Mike Grimshaw

In the aftermath of the Christchurch terror attacks a month ago, New Zealanders are grappling with difficult, albeit necessary, questions about discrimination and casual racism.

The response to the horrific attack has been heartwarming. Tens of thousands of people from different backgrounds offered support to the Muslim community and paid their respects to those senselessly killed and wounded. The response of Prime Minister Jacinda Ardern has been similarly refreshing, and has become a global talking point. This gives us hope for a better future.

But lurking behind news articles and commentary proclaiming that this is “not us”, debate is growing about what this atrocity also tells us that we have been reticent to acknowledge.




Read more:
How to challenge racism by listening to those who experience it


Everyday racism links to extremism

In some ways, both of these narratives ring true. On the one hand, we have bought into New Zealand’s high global ranking for tolerance and inclusion. On the other hand, New Zealand’s Human Rights Commission (HRC) and those of us who research prejudice and bigotry routinely find evidence for everyday experiences of casual racism. These experiences give extremism the space it needs to breathe.

One in three of the complaints received by the HRC in New Zealand is about racial discrimination. In 2017, the commission launched a Give Nothing to Racism campaign fronted by acclaimed film director Taika Waititi.

The New Zealand Human Rights Commission launched a campaign in 2017 to highlight everyday racism.

Everyday, or “casual” racism and bigotry can appear relatively subtle or blatant. It may include comments such as complimenting someone who doesn’t fit the dominant group for being “well-spoken”, calling someone a “good” Muslim/Māori/Asian, excusing race-based jokes or comparisons as “just joking”. These seemingly benign comments are often accompanied with more blatant experiences of ethnic slurs, being told to go back to one’s country, or managers admitting they do not hire people with “foreign” sounding names (a violation of New Zealand law).

Compounded with such day-to-day experiences is research spanning decades and using a variety of tools (including neuroscience methods, reaction-time measures, and behavioural measures) to show bigotry lies on a continuum from blatant to subtle.

It’s worth mentioning, even subtle biases contribute to negative outcomes for minority groups’ health, well-being and participation in wider society. And even subconsciously perceiving minorities as “less civilised” can fuel intergroup conflict and violence towards minority groups, as shown by decades of research

While terrorism may represent the actions by a small number of extremists, they are fuelled by social norms that allow these ideologies to take root and propagate. As acclaimed French theorist Jean Baudrillard observed in The Spirit of Terrorism:

terrorism merely crystallizes all the ingredients in suspension.

Social norms shape attitudes

This does not imply that communities themselves are responsible for acts of terrorism, but rather that terrorism reflects what circulates in geopolitics, national politics, normative beliefs of those around us, the media and the influence of other ideological and social forces. Global context is, of course, important, but New Zealand now needs to reflect on how social norms within our own community can inadvertently promote hate and prejudice.

In Christchurch, and New Zealand more generally, extremist groups have been omnipresent for decades. Just last year, there was a white supremacist march down a main street in Christchurch that received numerous car horn toots of support. Students in Auckland have reported an increase in extremist group messaging on campus, even after the disbanding of a controversial European student association.




Read more:
Christchurch mosque shootings must end New Zealand’s innocence about right-wing terrorism


More broadly, data from the New Zealand Attitudes and Values Survey (NZAVS) show that 28% of New Zealanders are willing to express negative feelings toward Muslims. Fortunately, this is where all of us may be able to contribute to reinforcing the inclusive and tolerant society we tout in international rankings.

Where to from here

Well-intentioned and fair-minded people are often unaware of everyday experiences of members of minority groups. They often dismiss them as unrepresentative because the majority has a psychological investment in believing it “doesn’t happen here”. But such experiences do happen here as empirical research consistently finds, and these experiences cannot be undone simply through a similar number of positive experiences. People have a “negativity bias”, which means that negative events are weighed more heavily than positive ones. And if we have limited opportunities to forge meaningful close connections with people from other groups, then all it takes is a handful of negative experiences to wash away the benefits of other positive interactions and create distrust and social distancing between groups. Research shows although positive experiences are more common, negative experiences influence our attitudes more strongly.

Even as we work in increasingly diverse workplaces, our social circles tend to be fairly homogenous. Data from the NZAVS show that as recently as 2017, 64% of White New Zealanders report that they did not spend any time in the last week socialising with someone Māori. Some 83% say the same about socialising with someone Pasifika, and 77% report spending no time with someone Asian, suggesting that for many of us, our social networks are largely homogenous.

While this is similar to patterns elsewhere in the world, these homogenous networks create psychological distance between “us” and “them”. This also insulates us from hearing differing perspectives because minorities often fear that they will be seen as complainers if they share negative experiences in casual settings.

Instead, establishing relationships with people who are different from ourselves promotes positive intergroup contact, which is one of the most well-established approaches to reducing prejudice. Similarly, promoting social environments that encourage dialogue and cooperation, establishing common goals and providing opportunities for multicultural experiences offer some starting points for how to move forward.

At a time when the UN estimates more than 250 million people live outside of their country of birth, cultural diversity is an inevitable reality. It means we must learn to live and work together, and at the very least tolerate our differences. If each of us works to remove everyday bigotry within our immediate environment, we make it that much harder for extremist ideologies to take hold.The Conversation

Kumar Yogeeswaran, Senior Lecturer in Social Psychology; Chris G. Sibley, Professor, University of Auckland; Danny Osborne, Associate Professor of Political Psychology, University of Auckland; Marc Wilson, Professor of Psychology, Victoria University of Wellington, and Mike Grimshaw, Associate Professor of Sociology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The latest citizenship-stripping plan risks statelessness, indefinite detention and constitutional challenge


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Home Affairs Minister Peter Dutton and Prime Minister Scott Morrison unveiling tough new proposals to strip extremists of their Australian citizenship.
Joel Carrett/AAP

Sangeetha Pillai, UNSW

This week, Prime Minister Scott Morrison and Home Affairs Minister Peter Dutton announced the federal government’s intention to introduce changes to Australia’s citizenship-stripping laws. The proposed changes would likely make Australia’s regime for citizenship-stripping the most expansive in the world. I’ll outline how the proposal would change the current law, and analyse its key elements.

What are Australia’s current citizenship-stripping laws?

In 2015, Australia introduced one of the most expansive regimes anywhere for citizenship deprivation on national security grounds. Under the current law, people can lose Australian citizenship against their will in two key ways:

  • Conduct-based citizenship deprivation: In certain circumstances, a citizen outside Australia can lose citizenship where the person has engaged in activities defined by reference to national security offences. A person does not need to be convicted of an offence to lose citizenship in this manner.

  • Conviction-based citizenship deprivation: The Minister for Home Affairs also has the power to revoke a person’s Australian citizenship where the person has been convicted of particular national security offences, and sentenced to at least six years’
    imprisonment. This is generally the only way in which people within Australia can be stripped of Australian citizenship against their will.




Read more:
Proposals to strip citizenship take Australia a step further than most


Currently, it is possible for the government to strip a person of Australian citizenship only if the person is a dual citizen. This means that, at present, Australian law does not allow a person to be deprived of Australian citizenship if this would render them stateless.

Dutton has said that the existing citizenship-stripping laws have been used to deprive nine people of their Australian citizenship. Very little information on the circumstances of these deprivations is available. However, it is clear that at least six of these instances involved citizens outside Australia who lost their citizenship on the basis of conduct committed overseas. There has been no reported instance of a person within Australia being deprived of Australian citizenship, or of the conviction-based ground for citizenship deprivation having been used.

What changes would the proposed laws introduce?

The government’s new proposal would make it easier for people to be stripped of their Australian citizenship in two ways.

Changes to the dual citizenship requirement

If the proposed changes become law, it will no longer be necessary for a person to definitively hold dual citizenship before losing Australian citizenship. A joint media release from the offices of Morrison and Dutton states:

The Government will…change the threshold for determining dual citizenship. This change aims to improve the minister’s scope to determine a person’s foreign citizenship status.

A bill has yet to go before parliament, and it is not clear from this statement exactly what the government envisages. One possibility is the legislation will give the minister the power to decide whether or not a person is a foreign citizen. This is likely to raise constitutional difficulties. As the High Court has made clear on many occasions, whether a person is a foreign citizen is a question determined by the law of the foreign country concerned.

Another possibility is that the legislation will allow a person to be stripped of Australian citizenship where the minister thinks it is reasonably likely, but not certain, the person has dual citizenship. As the recent referrals of multiple federal parliamentarians to the High Court over potential foreign citizenship illustrate, it can often be difficult to conclusively determine when a person has foreign citizenship. However, many people – including those born in Australia to Australian parents – hold dual citizenship as a result of a familial connection to a foreign country.

A change of this nature could also raise constitutional problems. The High Court has not yet determined the extent of the Commonwealth’s power to deprive a person of Australian citizenship. There is a plausible argument that certain citizens, especially those who hold only Australian citizenship or who have no substantive connection to a foreign country, are part of the Australian constitutional community, and are protected against citizenship deprivation.




Read more:
Government’s own ‘freedom commissioner’ Tim Wilson questions citizenship plan


On a practical level, enabling the minister to revoke a person’s Australian citizenship without it being clear the person has citizenship in a foreign country creates a very real risk of rendering the person stateless. This would place Australia in violation of its obligations under Article 8 of the 1961 Convention on the Reduction of Statelessness, which prevents signatory countries from depriving people of their nationality if it would render them stateless.

Australia has signed up to an international agreement not to render people stateless.
Shutterstock

Where a person inside Australia is deprived of Australian citizenship they become vulnerable to removal from Australia, and immigration detention until removal is possible. Where it is not clear that the person has citizenship in a foreign country, there is a likelihood of such detention being lengthy, or even indefinite.

Changes to the minimum sentence for conviction-based deprivation

The government’s media release also says:

The proposed changes would enable the minister to cease the citizenship of anyone who is convicted of a terrorism offence in Australia, irrespective of the sentence they receive. This removes the current requirement that a terrorist offender must be sentenced to at least six years’ imprisonment.

Currently, the minister has power to revoke a person’s citizenship only on conviction-based grounds where a person is convicted of a select list of national security offences. It is not clear whether the government intends to retain or expand this select list of offences.

An anti-terrorism exercise at Cologne Bonn airport in Germany on November 20.
Marius Becker/dpa

Either way, the proposal is concerning. In 2015, before the current citizenship revocation laws were introduced, the Abbott government attempted to attach citizenship revocation to a much wider range of national security offences, with no requirement for a minimum sentence. A number of experts advised that this ran a risk of falling foul of the Constitution.

The more limited current legislation was ultimately arrived at following an inquiry by the Parliamentary Joint Committee on Intelligence and Security. It found that restricting the list of offences and requiring a minimum six year sentence was necessary to “appropriately target the most serious conduct that is closely linked to a terrorist threat”. Since 2015, the national threat level has not changed.

In this context, the government should clearly explain why removing the six year sentence threshold for conviction-based citizenship deprivation is necessary and proportionate. Given that the conviction-based citizenship-deprivation powers have not been used since their introduction, the need for a clear justification is particularly strong. The government’s media release states:

We now need to focus attention on strengthening the citizenship loss provisions which commenced in 2015 as they relate to terrorists within Australia, in order to protect our community.

As the Law Council has stated, this justification is not nearly strong enough.The Conversation

Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.