Super department a bad sign for justice and the rule of law

Earlier today, Prime Minister Malcolm Turnbull announced the launch of a new ‘super department’ along the lines of the UK Home Office or the US Department of Homeland Security.

The move was not recommended by the recent review of the national security architecture by respectected Michael Le’Strange, was not endorsed by cabinet and has split the National Security Committee. The new department will capture the Australian Secret Intelligence Organisation, the Australian Federal Police, Border Force and the Department of Immigration. It will be headed by the Immigration Minister Peter Dutton.

Many commentators have argued the only reason to create such a department is political, providing Peter Dutton with additional power as a means of steering him away from a leaderahip challenge. Although the government has not stated what benefits such a department would bring to national security, the new department would presumably be responsible for strategic planning and coordination of the agencies in its purvue. This is most concerning. 

The Australian Federal Police has historically been under the remit of the Justice Minister with a strong relationship to the Attorney-General’s Department. The Australian Federal Police are not only used for counter-terrorism and border control activities. The AFP has personnel deployed on operations all over the globe including on peace support operations with the United Nations. They are a significant tool in Australia’s strategic investment in a rules based global order more closely aligned with the work of the Department of Foreign Affairs and Trade and the Australian Defence Force.

On the other hand, Border Force and Australia’s immigration policies, particularly those relating to refugees and asylumn seekers, are broadly condemned as breaching international legal norms and human rights standards.

The AFP are the authority responsible for investigating and prosecuting such international crimes as war crimes, crimes against hanity and genocide when they fall under Australian jurisdiction. Each of these crimes is outlined under domestic legislation and has been included in the Criminal Code Act. Even though it is known that Australians have perpetrated these crimes while fighting with Da’esh in Iraq and Syria, no investigations of prosecutions have yet occurred. 

Indeed, rather than meeting our obligations to investigate and prosecute these crimes, Australia has supported impunity for sexual violence in armed conflict by revoking the citizenship of a key perpetrator known to have committed these crimes. That decision was made by the very man now given authority over all the agencies within thisnew department.

Amy Maguire has argued that Australia’s human rights obligations now need to be rechecked under the new departmental structure. I could not agree more.

Citizenship revoked

A few months ago, the Abbott government developed several proposals to strip Australian dual nationals of their citizenship should they join Daesh in the Middle East. They released a discussion paper which stated that “citizenship is a contract by which we all abide.” The paper talks about citizenship as a privilege that is “fundamentally linked to an ongoing commitment to Australia and participation in Australian society.”

First of all, citizenship is neither a privilege nor a contract. Citizenship is a right. Every human being has a right to statehood. Article 15 of the Universal Declaration of Human Rights provides that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Arbitrarily depriving someone of their nationality engages consideration of a legitimate objective, proportionality and due process. Each of these three considerations is questionable in this context.

It surprised me that this whole discussion began on the 800th anniversary of the signing of the Magna Carta, a document credited with the beginning of a western tradition of human rights and limitations on state power. Australia has the only copy of the Magna Carta in the southern hemisphere and it is permanently displayed in Parliament House. The most famous passage contained in this historic document can be found in Chapter 39 and states that, “no free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgement of his peers or by the law of the land.”

The right to citizenship is not one that can be revoked by Ministerial decree. This matter has been tested by courts in other jurisdictions. In 1958, in the Tropp v Dulles judgement, the United State Supreme Court stated “citizenship is not a licence that expires on misbehaviour… and the deprivation of citizenship is not a weapon that the government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.” In that case, the Chief Justice, joined by Justices Black, Douglas and Whittaker concluded that “citizenship is not subject to the general powers of the National Government, and therefore cannot be divested in the exercise of those powers.”

In a recent article in The Conversation, Rayner Thwaites went beyond legal questions of the government’s proposals. He asked if revoking citizenship would be an effective “means of expressing moral opprobrium about terrorism?” I would argue that revoking citizenship is not a suitable means of addressing moral contempt of terrorism.

Captured women and children were treated as

Captured women and children were treated as “spoils of war”, the UN report said.
(Photo by AFP: Ahmad Al-Rubaye)

If an Australian citizen chooses to travel to Iraq or Syria and fight with Daesh and then chooses to return to Australia, they should be charged with the relevant criminal offences and prosecuted. Such offences could include treason, genocide and war crimes. In 2013, the Commonwealth Crimes Act was amended to update the definition of treason which could now cover acts undertaken by Australians fighting with Daesh in Syria or Iraq. The United Nations has suggested that Daesh is committing genocide against the Yazidi people. Genocide has been a crime in Australia since 2002, when the government finally passed the Genocide Convention Act of 1949.

There is also a vast body of evidence to suggest Daesh are committing a range of war crimes, or grave breaches of the Geneva Conventions. A recent report by the Human Rights Council recorded the following acts which are defined as war crimes in the Rome Statue: murder, cruel or degrading treatment and torture; directing attacks against civilians or humanitarian workers; taking hostages; summary executions; rape, sexual slavery, forced prostitution or forced pregnancy. The report documented particularly egregious violations against women and girls. As a result of this report, the Office of the High Commissioner for Human Rights has asked the Security Council to refer perpetrators to the International Criminal Court for further investigation and possible prosecutions.

In Australia, these acts are criminal offences under the Geneva Conventions Act 1957 (last updated in 2009) and the War Crimes Act 1945 (last updated in 2010). These two acts have been incorporated in Division 268 of the Criminal Code Act 1995. Under the principle of complementarity of the International Criminal Court, signatories to the Rome Statue have the obligation, if they are willing and able, to investigate and prosecute these crimes themselves. If such crimes have been committed by Australian citizens, we will certainly have the jurisdiction, and should show a willingness and ability to investigate and prosecute.

During the late 1980s, concern “that a significant number of persons who committed serious war crimes in Europe during World War II may have entered Australia and become Australian citizens or residents” gave rise to the establishment, in 1987, of the Special Investigations Unit. The unit investigated Nazi war crimes, and was later used in investigations of crimes in the Balkans. But there has been a “lack of political will to cover the necessary financial costs” and the unit no longer exists. When Australian soldiers were accused of unlawfully killing civilians in Afghanistan, the body of law used in their prosecution was not the Geneva Conventions, but civil law relating to duty of care.

A just response to Australians choosing to join Daesh, one that falls within the human rights framework and supports the rule of law, would be to find sufficient evidence, charge the individuals in question, and prosecute them. Justice would be much better served if the Australian Government mandated, maintained and supported the relevant institutions and units required for this task. This is particularly pertinent given Australia’s public stance against impunity for sexual and gender based violence in conflict and would certainly go some way to meeting our obligations under the suite of United Nations Security Council Resolutions on Women, Peace and Security and Australia’s National Action Plan on Women, Peace and Security 2012-2018.

Australia Day awards

I could not be prouder to have Rosie Batty selected as the 2015 Australian of the Year. Last year, Rosie’s son, Luke Batty was playing in the cricket nets with his father. Without warning, his father smashed Luke on the back of the head with the cricket bat. When he fell to the ground, the father attacked him with a knife. Luke died in hospital the next day. Australia has watched Rosie Batty rise from this tragedy, at the press conference after Luke’s death, she said

Family violence happens to everybody. No matter how nice your house is, how intelligent you are. It can happen to anyone, and everyone.

She has tirelessly campaigned for greater awareness, and institutional responses to domestic violence. I’m certain I am not the only one who cries when she speaks about the issues; she has a profound voice. Now she is being recognised for her herculean efforts. I haven’t been this proud of our national awardees since Patrick McGorry was awarded the honour for his work on mental health.

Ben Roberts-Smith should be proud to have chaired a committee that selected, for the first time ever, four women for the Australian of the Year awards. It’s been a tough year for the recognition of women in Australia. We’ve seen cuts in funding to domestic violence and homelessness programs.We still have fewer women in federal cabinet than there are in Afghanistan. We’ve seen policies proposed that would lead to an increase in the real cost of a university degree for women. There’s been an increase in the gender pay gap and moves to force a reduction in the gender equity reporting requirements for employers. But Ben Roberts-Smith spoke a great truth at the awards ceremony

Rosie, Jackie, Drisana and Juliette remind us of the many ways in which women contribute to our nation — that women are a force for change, a voice for rights, influencers, educators and the heart of our communities.

It brings me great hope and joy that these four women have been recognised for their contribution to Australian society; their contribution and their leadership. Jackie French was awarded Senior Australian of the Year for her services to literacy; Drisana Levitzke-Gray was awarded Young Australian of the Year for campaigning for the rights of deaf people; and Juliette Wright was awarded Australia’s Local Hero for establishing a website that facilitates community members donating quality items to those in need, especially after a disaster.

Last year, the Prime Minister made the decision to revive part of the imperial honour system, appointing dames and knights, titles traditionally awarded for service to Queen and country. The first two awardees were the outgoing and incoming Governors General. Today he made an interesting announcement; awarding one of these knighthoods to none other than the Prince Philip, the Queen’s husband. There has been a great deal of discussion about the decision. Some people have protested based on personal attributes of the Prince, others have protested because he isn’t Australian. Today I read a very valid gender analysis of the decision. But I cannot think of a more bizarre choice merely on grounds of process. Giving Prince Philip an Australian knighthood seems to me to be a bit like choosing the principle as the pupil of the week, or perhaps the principle’s husband. It just doesn’t compute.

I was however heartened to read the list of OAM recipients from Far North Queensland recognised for their service to the indigenous community. The Medal of the Order of Australia is the category we see most people who have served the community, those who are recognised for voluntary service; not military service, or public service for which they have been otherwise recompensed, but the kind of service that truly comes from the heart, and gives in the best way possible. It is for this reason I love to see who has been awarded the OAM in communities around the nation. We hear so many dire stories from indigenous communities and so rarely hear of positive achievements, so it was especially good to hear indigenous people recognised for their service the community.