Is a terrorist’s win in the High Court bad for national security? Not necessarily

The High Court decision was one of four handed down on the same day. Lukas Coch/AAP

First, the court acknowledged that loss of one’s citizenship is at least as serious as detention.

Second, the court interpreted the law as being designed to punish the person for their conduct.

Under the separation of powers, which the Constitution protects, imposing punishments for wrongdoing is generally the work of courts and should follow a criminal trial and finding of guilt.

In this case, the minister was essentially – and unconstitutionally – trying to go around the courts by punishing these individuals outside the criminal process.

What now for Benbrika?

The consequence of Alexander remaining an Australian citizen is that it remained Australia’s responsibility to, for instance, take steps to find out where he was, re-establish contact with him, and provide consular assistance.

Alexander may even need to be brought back to Australia where he would be dealt with under our own laws and justice system (it is, after all, a serious federal offence to join ISIS).

Benbrika, on the other hand, has served his sentence for terrorism offences and won his fight to maintain his Australian citizenship.

So will he walk free? Is it only a matter of time before he is radicalising more young people and inciting further hatred and violence?

Whatever lies ahead for Benbrika, it is unlikely to be any sense of freedom.

Read more: As new Aussie citizenship rules kick in, the ‘fair go’ finally returns to trans-Tasman relations^[6]

Australia has more extensive counterterrorism law than anywhere else in the world. A recent count^[7] put the tally at almost 100 laws enacted since the 9/11 attacks in 2001.

Many of those laws tweak the usual rights given to people as they move through the criminal justice system.

This includes the option of post-sentence imprisonment – “continuing detention orders” – for those who are assessed to pose an unacceptable risk of committing national security offences.

David Hicks was subject to a control order for years. Rick Goodman/AAP

Such an order can be made for up to three years and there are no limits on renewal.

Not only has Benbrika already been subject to those orders but, in 2021, he lodged an unsuccessful High Court challenge^[8] to those laws.

For as long as Benbrika is assessed to pose an “unacceptable risk” to the community, he will remain in prison.

But what if he satisfies a court that his release no longer poses an unacceptable risk?

Under Victorian law, Benbrika could be subject to an extended “supervision order”, which can be made for up to 15 years (with a possibility of being renewed for a further 15 years).

On top of this are federal “control orders”.

This is the kind of order imposed on David Hicks^[9] on his return from Guantanamo Bay, and on Joseph “Jihad Jack” Thomas^[10] after his acquittal for terrorism offences.

Control orders allow for an extremely wide range of restrictions and obligations to be imposed on a person if those conditions are “reasonably necessary, appropriate and adapted” to protecting the community from terrorism.

Control orders last for up to 12 months, but there are no limits on their renewal.

Under a supervision order or control order, Benbrika could be required to:

• stay at a certain address

• be subject to curfews (even amounting to home detention)

• wear a tracking device

• not use the internet, a phone or other devices

• not contact certain people or go to certain places

• undertake education, counselling or drug testing

• or any number of other restrictions or obligations deemed necessary for community protection.

Breaching one of these orders is punishable by five years imprisonment.

Jospeh Julian Smith/AAP

But wouldn’t it be better to deport him?

There is a symbolic attraction to taking away the citizenship of someone who has acted in a way that shows no allegiance to – and even a violent disregard for – Australia and basic community values.

Indeed, the one judge who upheld the citizenship-stripping laws, Justice Simon Steward, did so on the basis that citizenship-stripping was not designed to punish.

Instead, he argued it was merely an acknowledgement that the person themselves had severed their ties to Australia.

Read more: What does 'being Australian' mean under the Constitution?^[11]

A study^[12] looking at counterterrorism citizenship-stripping in the United Kingdom, Canada and Australia found the laws were serving this symbolic role.

But symbolism is a thin shield for national security.

When it comes to actually protecting security, the evidence shows that citizenship-stripping comes up short.

People have been stripped of their citizenship and committed terrorist acts elsewhere. Khaled Sharrouf, Australia’s most notorious foreign fighter, is one such person.

In a globalised world, people stripped of citizenship can still serve a pivotal role in recruitment and radicalisation, especially on the internet.

Kept in Australia, as an Australian, the full weight of our vast security laws can be brought to bear on Benbrika.

Stripped of his citizenship, Benbrika would have been beyond the reach of those laws, and it would be naïve to think that simply making him not-Australian would negate the risks he may present.

Read more https://theconversation.com/is-a-terrorists-win-in-the-high-court-bad-for-national-security-not-necessarily-216896

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