Despite changes made to Prime Minister Tony Abbott's original proposals, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 is worrying in the extreme. Don't imagine that these laws apply only to a small number of people. The federal parliament itself estimated that "up to a quarter of the population" are or are entitled to be dual nationals – millions of migrants and their children, many of them born in this country, many of them indeed unaware of their status.
The bill will automatically strip citizenship from Australian dual nationals who engage in terrorist conduct, fight overseas, or are convicted of terrorism offences. Let us leave aside whether these laws serve any real purpose, or are intended only to vent those hallmark emotions of the Abbott government, fear and loathing.
Law is like the Tardis. It is a time machine; what matters is not how it makes us feel now, but how it can be used in the future. And it is larger on the inside than the outside. Apparently minor legal changes may have very large consequences. To ignore these aspects of the bill is a recipe for disaster.
The bill does much more than exile "terrorists". It will automatically remove citizenship from any dual national who is found guilty under the Criminal Code of disclosing matters relating to "national security". It is unclear how far this might go. Only recently the government introduced a new offence making it illegal for workers in mandatory detention facilities to disclose any information, including child abuse, about the conditions there. It gives a broad discretion to determine what kind of "protected information" would be covered, and how the law is applied. In Australia, health workers are legally and professionally obliged to report the mistreatment of those under their care. On Nauru, they are legally obliged not to.
It is not clear to me whether "border security" is or might become a matter of "national security" under the Criminal Code, and therefore subject to the bill. The secretary of the Immigration Department has already referred reports about asylum seekers to the police with the aim of prosecuting whistleblowers under the Crimes Act. From there to prosecution under the Criminal Code is not such a big step. So Australians doctors and nurses may face a criminal prosecution which will automatically strip them of their citizenship. What effect will this have on their ability to fulfil their ethical and professional obligations?
The bill also applies to Australians convicted of certain offences under the Crimes Act – including "destroying or damaging Commonwealth property". Many thousands of people have been convicted under this offence. A demonstrator who pulls down a fence; an environmentalist who spikes trees in a national park; a youth who spray-paints graffiti on the wall of a building owned by the Commonwealth; a student advertising an event by tacking a poster to a lecture hall at the ANU. They are all guilty of an offence. And upon conviction, their citizenship would be instantly lost – unless the minister decided to save them, subject to no limits on his discretion at all.
The question is not how the government plans to use these laws now, but how the laws might be exploited in 10 or 20 years' time. What will stop these laws becoming used to silence or intimidate dissent then? The democratic process? Don't make me laugh.
But it's not about crystal ball-gazing. Up to 6 million Australians are at risk from this legislation right now. This might not entirely shut them up, but it will certainly make them think twice about saying what they think about this or any government.
I know dual nationals and recent migrants for whom this is a matter of real concern. Many come from countries with a long history of corrupt legal processes under repressive regimes. They don't see much difference between these laws and those that have been used against them or their friends elsewhere. They don't trust the good faith of governments, and who can blame them. So they are less likely to stand up for what they believe in, or join a union or a protest group or a political party. My friends have no plans to damage Commonwealth property. But they have a sneaking suspicion that if you are on someone's list as a troublemaker, these laws might be used against you some time in the future. The sword of Damocles hangs over them all.
The silencing of dissent is insidious and ongoing. This is not about the "human right" to "free speech", as if it was just a personal good that people enjoy, like a nice house or a car. It is about the future of public discourse. A silenced and cowed electorate is not just worse off now – it steadily worsens over time. And without proper and open public debate, it gets worse not just for "alleged terrorists", or for dual nationals, but for everyone.
A useful test is whether we would support laws like this in other countries. How easy it would be for the Myanmar government, for example, to determine that 1 million Rohingya have "advocated terrorism" or have damaged government property – for example by building their houses on it – or have disclosed information which endangers national security – for example by trying to alert the international community to the junta's genocidal policies?
According to the Myanmar government, the Rohingya are not true citizens. In Abbott's words, they are "not like us". Our citizenship bill would be tailor-made to implement the regime's program of ethnic cleansing. But why then are the same laws thought to be acceptable here? Do we really have so little imagination as to the long-term dangers behind this reckless legislation?
This is not about terrorism. It is about the future effects of a badly conceived law, and the ways it is already stifling dissent. The chilling of public debate on questions of security and terror, and the creation of a climate of fear and anxiety that prevents people from contributing their much-needed perspectives to political discussion, is happening right now. In houses and universities, pubs and cafes, all over the country, people are torn between their conscience and their fears: doctors, nurses, writers, teachers, students. If law is a Tardis, we are spinning towards some alien and inhospitable planet, more rapidly than you would have thought possible.
Professor Manderson is an ARC Future Fellow jointly appointed in the ANU College of Law and the Humanities Research Centre, at the Australian National University.
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