Terror suspect became New Zealand’s problem because of a dubious Australian law that has since been repealed

New Zealand authorities are declining to make a statement on the former Australian-New Zealand dual citizen Suharya Aden who is possibly facing deportation from Turkey  on the grounds of being an Islamic State Terrorist as alleged by Turkish authorities. In mid-February, Aden was arrested while attempting to enter Turkey from Syria. Her arrest set off a diplomatic dispute when it came to light that the Australian Government had deprived the 26 year old off of her Australian citizenship, leaving New Zealand to handle the dilemma she is placed in. Although born in New Zealand and domiciled in Australia from the age of six, Aden travelled to Syria on an Australian passport in 2014. The Australian passport was cancelled in 2020 on the grounds of alleged involvement with the ISIS. The actual date or timing of when she was stripped off of her citizenship is not clear.

Media coverage has largely centered on New Zealand Prime Minister Jacinda Arden’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Aden lost her citizenship automatically under a now-repealed Australian law. That law deprived her of her citizenship without any Australian official evaluating her circumstances. It was this law that deprived her of her citizenship without an assessment of the situation carried out by an Australian official.

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 organization or engaged in “disallegient” conduct (defined with reference to various terrorist offences, though not incorporating key elements of those offences).

A person is subject to loss of citizenship in the event the statutory conditions were met, regardless of any official was aware of it happening. It is obvious that any sort of action could be taken up by an official only one he or she  learned that the relevant conditions has been met –  but this could be may years later.

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.

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

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