The nature and social consequences of any crime need to be discussed before deciding how guilt and punishment is to be determined. Not following this logic sequence with the very serious offence of treachery has led to a signififant categorisation error sidetracking discussion of how citizenship revocation might occur as a potential punishment. There is also a major conceptualisation fault further sidetracking much public debate. Where the treachery involves Australians choosing to serve overseas with the so-called "Islamic State" this is essentially a wartime crime and even more serious, yet many of those trying to discuss the treachery issue remain subjectively trapped in unduly "peacetime" mindsets and ignore or downplay wartime treachery as the nub of the issue.
Recent discussion about reform of our citizenship laws continues to be largely sidetracked by a significant categorisation error hampering informed debate.
Whether Australian citizenship should, or even can, continue to be held by traitors remains the heart of the matter. The nub of the issue is how to deal with treachery, rather than how we define or might revoke citizenship.
The revocation of Australian citizenship due to treachery even if considered only as a matter of punishment — and not active deterrence as well — can surely only be discussed properly by first addressing the nature, gravity and consequences of the crime involved.
However, because treason and treachery are not commonplace crimes much debate instead begins and ends, illogically, by only discussing modes of determining punishment.
Context and lessons
Discussion has been further confused by a commonplace contextual misunderstanding.
Particularly by those who ignore or misunderstand the obviously relevant, but complex, constitutional and legal history involved with how our laws deterred, countered and punished treachery when Australia was previously at war.
Many protagonists on all sides of rule-of-law questions, for example, fall into the trap of not acknowledging the, at least partly, wartime circumstances often applying to treachery and to its most serious consequences as a crime.
Most public discussion has not mentioned — let alone start out by being properly based on — the highly relevant High Court rulings from both World Wars and the Korean War that firmly established the key constitutional principle involved.
This key principle is that the defence and security heads of power in the Constitution wax and wane according to the seriousness of the threat.
For example, at one end of the threat spectrum, by regulations under the National Security Act, 1939, ministers were lawfully authorised, subject to judicial appeal, to:
- ban extremist political parties sympathetic to enemy countries and their allies (including the communist party during 1939-41 due to the 1939 Nazi-Soviet Pact);
- intern enemy citizens, other foreign aliens and naturalised Australians with perceived enemy sympathies; and
- intern Australian citizens by birth (and even long ancestry) who were considered likely to pose a domestic security threat, such as members of the Australia First Movement as potential enemy collaborators.
But the principle is also why, towards the other end of the spectrum, the High Court struck down the Act dissolving the Communist Party of Australia (CPA) in 1951.
Even though Australia was directly fighting international communist aggression in the Korean War the High Court judged the nature of the overall threat at that stage did not alone justify banning the CPA. Even though the CPA was strongly aligned to such an international movement, was then under significant foreign control by the Communist Party of the Soviet Union, and was actively subverting Australian participation in the UN collective-security action in Korea.
The ensuing referendum to expand the defence and security heads of power to cover such a ban was not approved by the electorate. Indeed the referendum result consolidated the High Court's reaffirmation of the long-standing and extant principle.
The historical record clearly shows that the rule-of-law was preserved throughout, even when draconian measures were temporarily necessary in times of increased national threat.
In the current situation, the dual international and domestic threats posed by Islamist terrorism are likely to be long-term ones but not existential or even at other World War-type levels.
However, in constitutional, practical and moral terms the nature and seriousness of the threat surely still justifies more than traditional “peacetime” counter-treachery and counter-terrorism measures.
But most public discussion ignores this context, and the tried and tested constitutional principle about the waxing and waning heads of power underlying application of the rule-of-law as our national security circumstances change.
As the High Court emphasised in numerous cases establishing the principle, stricter measures at any one time — when duly balanced against the degree of threat then applying — are not somehow unconstitutional, beyond the exercise of legal power or authority, arbitrary, or otherwise contrary to the rule-of-law as some are prone to claim inaccurately.
Relevant precedents in recent reforms
Most public debate, even if making cursory references to wartime and Cold-War legal precedents, also ignores or misinterprets the obvious relevance of more recent reforms.
In particular, where the Security Legislation Amendment (Terrorism) Act, 2002 finally closed the 1945-2001 Burchett loophole in our previous treason and treachery laws but the reform was not carried through fully by also amending Section 35 of the Citizenship Act, 2007.
After the David Hicks case during the early part of the Afghanistan War, the 2002 reforms ended the archaic requirement — prohibited in effect by the UN Charter half a century previously — that wars had to be “declared” before alleged traitors could be prosecuted.*
Armed conflict (war) now exists as a material fact alone according to international law.
Just as importantly, the reforms also rightly made it a crime to serve with any armed group fighting our defence force, not just with an enemy nation-state.
While fighting for the so-called “Islamic State” is therefore illegal, the continuing flaw in the Citizenship Act (Section 35) is that citizenship is only revoked automatically when the traitor is fighting for a nation-state and only if a dual citizen or dual national anyway.
While Section 35 of the 2007 Act is often cited in public debate by both sides of the argument, it is rarely noted that the section has never been used. Nor why similar provisions in previous legislation (back to the first Citizenship Act in 1948) were never used, only because of the Burchett loophole, not because automatic revocation of a traitor's citizenship somehow contradicts the rule-of-law.
As a result of most references to this section of the Citizenship Act incorrectly describing the historical exercise of this provision, some have been tempted to dispute the need for such a legal power on spurious grounds centred in party-political or ideological stances rather than the law and the facts.
All Australians need to note that for 56 years we badly let down generations of men and women serving us in our defence force as fellow citizens. We must now act so as to not let them down so disgracefully again. On both moral and practical grounds the Citizenship Act should be reformed to close the last loophole that enables Australians serving with an enemy fighting our diggers to escape specific prosecution or punishment for their treachery.
Other conceptual misunderstandings
Many Australians oddly seem to ignore or even doubt their reciprocal citizenship obligation to those fellow Australians we deploy to war and peacekeeping on our behalf to prohibit all acts that intentionally or recklessly assist an enemy fighting them.
Moreover, this is not just a case where dealing with a crime ends with only issues of prosecution or punishment.
Treachery as a crime embodies an unequivocal rejection of the mutual responsibilities and shared values of Australian citizenship. Our treachery laws must therefore also pro-actively deter and pre-emptively counter commission of the crime in the first place, not just thoroughly punish those offenders who we are able to bring to trial.
In the case of traitors actually serving overseas with "Islamic State", leaving them undeterred, uncountered or unpunished also contradicts Australia's obligations as a UN member and a responsible international citizen.
Due to peacetime mindsets, however, most discussion about revoking the citizenship of Australian traitors serving with “Islamic State” tends to excuse or downplay treachery as the crime involved.
Discussion is instead often diverted into what are actually consequential matters about how to revoke the citizenship of traitors, rather than why it is necessary.
Debate also features some really odd ethical contradictions and skewed perspectives.
Few Australians, for example, seem to bat an eyelid at the battlefield killing, by us or our allies, of an Australian traitor who has chosen to switch his or her allegiance to “Islamic State”, and actively carried this out by going overseas and serving it in a war.
Yet there is quibbling about whether such traitors should, or even can, have their Australian citizenship revoked for such treachery. Even when they openly renounce their citizenship and boast about doing so as part of their internationally proscribed terrorist cause.
Such ethical or contextual confusion also causes significant moral and practical problems on the ground, both with law enforcement and with military action. Particularly where it means Australian law enforcement agencies and our defence force are hindered in exchanging intelligence on even traitorous citizens with Coalition partners fighting alongside us.
Even in a UN-endorsed operation combating terrorism and even worse violations of international humanitarian law by such traitors.
Our obligations under international law must be accorded due weight, not somehow be considered universally subordinate to any rights traitors might seek to retain undeservedly in such grave circumstances.
Balancing national resolve, law and practice
Freely switching your allegiance to a terrorist group such as “Islamic State” and going overseas to join it is not just a normal type of crime. Nor does it have consequences only in Australia.
Australia has national and international responsibilities to deter and counter such serious crimes globally, not just punish those traitors we might eventually be able to capture and put on trial in an Australian court.
Ideally every traitor would be punished by convicting them in an Australian court, but making this a universal precondition for revoking their Australian citizenship causes insuperable moral and practical difficulties.
- You have to be able to capture them and then bring them back to Australia for trial. When you cannot, the traitor escapes the consequences of his or her treachery, further treachery is undeterred or not actively countered, every Australian faces increased risks of attack, and the international reputation of Australia as a whole suffers.
- Even when we able to put them on trial in an Australian court, the facts establishing their treachery must be admissible as evidence beyond reasonable doubt. Despite obvious difficulties in undertaking an Australia-standard investigation in war zones, especially behind enemy lines or in countries where the rule-of-law does not exist.
- The impractical precedent of the Victorian Court of Criminal Appeal in the Jack Thomas case must also be overcome. This effectively gives a “get-out-of-gaol-free" card to any Australian terrorist arrested or captured in the relatively lawless countries where terrorists tend to get detained and can subsequently be brought to trial in Australia. Even when evidence is gathered in-country by the AFP to domestic Australian standards, including the suspect being advised of their rights and freely admitting the facts.
- Requiring conviction by an Australian court in all circumstances is unfair, at best, to the men and women we lawfully deploy to confront such "Australian" traitors on the battlefield, especially before any capture of the traitor for trial in Australia is even remotely, if at all, possible.
- Finally, we must be able to deter, actively counter and punish treachery by revocation of citizenship so battlefield killing is not left as the only alternative where capture and trial is unlikely, impractical or impossible.
* Because the 1945 UN Charter had in effect prohibited declarations of war it was not possible to prosecute Wilfrid Burchett for his activities with the North Koreans in the Korean War (and perhaps for his activities with the North Vietnamese in the Vietnam War), and later David Hicks for his alleged or admitted activities in the Afghanistan War.
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