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A New Zealand passport and an Australian passport that is marked cancelled.
Shutterstock/The Conversation

Suhayra Aden became New Zealand’s problem because of a dubious Australian law that has since been repealed

New Zealand authorities are still refusing to comment publicly on the likely deportation from Turkey of Suhayra Aden, the former Australian-New Zealand dual citizen alleged by Turkish authorities to be an Islamic State terrorist.

But according to one recent report, it is likely New Zealand officials will eventually escort her from Turkey, along with her two children, aged two and five.

Aden was arrested in mid-February trying to enter Turkey from Syria. Her detention triggered a diplomatic row when it emerged Australia had stripped the 26-year-old of her Australian citizenship, leaving New Zealand to deal with her predicament.

Born in New Zealand but having lived in Australia since she was six, Aden travelled to Syria on an Australian passport in 2014. Alleged to be involved with ISIS, her Australian passport was cancelled in 2020. The timing of her actual loss of citizenship is less clear.

Media coverage has largely centred on New Zealand Prime Minister Jacinda Ardern’s accusation that, in stripping Aden of her citizenship, Australia had “abdicated its responsibilities”.

Ardern was right. But what has been less well covered is how the Australian government disabled itself from making a decision — let alone an informed one — on that loss of citizenship.

Aden lost her citizenship automatically under a now-repealed law. That law deprived her of her citizenship without any Australian official evaluating her circumstances.

Police woman in mask holding arm of woman with face covered
Suhayra Aden (right) being taken into custody on the Syrian-Turkish border in February. Erdal Turkoglu/Anadolu Agency via Getty Images

An automatic rule

Introduced under Tony Abbott’s prime ministership, the powers of citizenship deprivation were enacted in December 2015, early in the Malcolm Turnbull government. Automatic loss of Australian citizenship could occur if:

  • the person was aged over 14

  • they would not be rendered stateless (Aden’s New Zealand co-citizenship ensured this)

  • and they had either fought for a declared terrorist organisation or engaged in “disallegient” conduct (defined with reference to various terrorist offences, though not incorporating key elements of those offences).

A person lost their Australian citizenship the instant the statutory conditions were met, irrespective of any official knowing this had occurred. Of course, officials could only act when they found out the relevant conditions had been met — but that might be years later, if ever.

So, for example, a person could be denied a passport on the basis they no longer had citizenship. But a person’s loss of citizenship did not wait on any official action or decision.

Read more: With their mother’s Australian citizenship cancelled over alleged ISIS-links, how will NZ deal with her children?

The Australian government adopted these “automatic” mechanisms in part to avoid any “decision” being subject to judicial review. Legally, it is harder to challenge an automatic statutory change to a person’s rights or status than one decided by an official.

As the Australian Independent National Security Legislation Monitor (INSLM) put it, those statutory provisions lacked “the traditional and desirable accountability which comes from a person taking responsibility for making a reviewable decision”.

That lack of accountability was the point.

Malcolm Turnbull and Tony Abott
Former Australian prime ministers Malcolm Turnbull and Tony Abbott oversaw the introduction and enactment of the now-defunct legislation. AAP

No national security assessment

As the INSLM heard during hearings in June 2019, the Australian government did not necessarily know who had lost their Australian citizenship or when. This considerably complicated the counter-terrorism work of Australian police and intelligence services.

The INSLM found the uncertainty created by an automatic procedure might impede criminal prosecutions or cause them to fail.

Responding to Ardern’s criticisms, Australian Prime Minister Scott Morrison argued it was his job “to put Australia’s national security interests first”.

Read more: In war-torn Syria, the coronavirus pandemic has brought its people to the brink of starvation

The problem was, no national security assessment had preceded Aden’s loss of citizenship. The statute neither required nor allowed for any contextualised assessment of a person’s circumstances or the broader implications of depriving them of citizenship.

The first job of the relevant Australian officials was to mop up — to find out as best they could what the statute had already done, to whom and when.

A failed policy

Discussing the prospect of terrorist fighters leaving a conflict zone and returning to Australia, the Department of Home Affairs had observed:

In managing the risk presented by these individuals to Australia’s safety and security, a suite of measures, that are sufficiently nuanced and can be applied on a case-by-case basis, is paramount.

The provisions that deprived Aden of her citizenship emphatically failed to deliver on this policy objective.

Read more: No, Mr Dutton, DNA testing ISIS brides won't tell you who's an Australian citizen

None of this is to say the Australian government’s hands were tied. Even under the now-defunct legislative provisions that provided for an automatic process, the home affairs minister had the power “at any time” to make a determination to “exempt the person from the effect” of the automatic citizenship deprivation provisions.

The Australian government belatedly responded to the counterproductive consequences of the “automatic” process by repealing the relevant provisions and replacing them with a model based on ministerial decision.

But by the time those amendments came into force in September last year, Aden had already lost her Australian citizenship and New Zealand was her only legal home.

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