Australia would be totally justified in saying anyone who has dual citizenship will forthwith lose their Australian citizenship if they fight abroad with any other forces
By Malcolm Fraser
There has been lots of discussion about what ought to be done about Australians who fight with extremists groups overseas. Thus far, there has been little practical action.
This situation was foreseen in 1960-61, when Garfield Barwick passed legislation to amend the crimes act. Barwick’s legislation introduced an offence called “treachery”. While the act of treason, at the time, could attract the death penalty, Barwick limited the penalty for treachery to provide for a maximum punishment of imprisonment for life.
The amendment made it possible to extend the charge of treachery to any Australian joining rebel groups in other countries. At that time, it was particularly aimed at Africa and mercenary groups operating there. Barwick also made sure to build in important human rights safeguards. Before the law applied to any country, a resolution in both houses of parliament had to proclaim that country as applicable to the legislation. Equally, countries could be taken off the list by resolution of both houses. Importantly, it was also written in the context that we wish to remain friends with a certain country and prevent Australians working against that country.
Today’s situation has slightly different circumstances, but the substance of the issue remains the same. Long ago, the parliament could have proclaimed both Iraq and Syria to be under the Barwick legislation, which would have made it very clear to any Australians who went to fight abroad they would be subject to the most serious charges if they were to return to Australia.
As yet, no action has been taken under this legislation. In the current context, it should not have been a problem to proclaim Iraq. However, it may have been a problem to proclaim Syria because in the first instance, rebels were supported by the west – but the rebels then transformed into Isis, whom no one would support.
In Barwick’s time, dual citizenship was rare. Today it is common. Australia would be totally justified in saying anyone who has dual citizenship will forthwith lose their Australian citizenship if they fight abroad with any other forces. Australians should only fight overseas with the Australian Armed Services. I don’t think any Australian should be able to fight in foreign wars, unless that action is supported by the Australian government. Importantly, that would preclude an Australian going to do national service in any other country.
If someone with dual citizenship wants to go overseas and fight in another country, they should then lose their Australian citizenship and have no right to return. The Australian government should do all in its power to bring such people before the International Criminal Court.
The government’s move in cooperation with the US to refer the problem of returning jihadis to the United Nations makes sense, but to wait for effective action from that source is ludicrous. It is already within Australia’s power to protect Australians against jihadis and their friends, so that they cannot learn the arts of terrorism and come home with that knowledge.
The question of denying social service benefits to friends of terrorism is a minor step. It also raises a number of questions. Are people to lose rights to any social security merely on the say so of the Australian Security and Intelligence Organisation, without any rights of appeal? That, however, is irrelevant to the much more important problem of returning jihadis. The impact of the Barwick legislation with the extra-territorial extension of the very serious crime of treachery would see anybody who came back from fighting overseas subject to that charge.
This problem was foreseen, albeit in a different form, more than 50 years ago. And at that time, the government acted effectively.