A Turkish judge shocked the Australian government in July by refusing its extradition request for the notorious Melbourne-born Islamic State fighter Neil Prakash.
Within a month, a panel of officials who make up the “citizenship loss board” had reportedly sifted through the evidence on Prakash and resolved that he met the criteria to have forfeited his Australian citizenship: he had fought with a terrorist group, he was over 14, and he held a second citizenship - Fijian.
The panel briefed Home Affairs Minister Peter Dutton, who accepted its case and made a determination that Prakash was no longer Australian, though no announcement was made until late last month.
The timing is important because it points to the Coalition government’s - and in particular Dutton’s - prioritisation of making sure Australians who pose a terrorism threat cannot ever come back here, over other approaches such as extradition.
“Let’s wait and see what happens in terms of the legal process but from my perspective, I want Australians to be as safe as humanly possible,” Dutton said when asked whether Prakash shouldn’t be dragged back to face charges here.
“If we can prevent somebody from coming back to our shores, then that’s the best possible outcome.”
Prakash’s case is important not just because, as a pin-up boy for Islamic State, he has become one of the nation’s most infamous jihadists, but also because his circumstances crystallise key issues about how Australia should deal with up to 100 of its citizens who joined groups such as IS and have survived the bloody war for eastern Syria and northern Iraq.
When Fiji dropped the bombshell that Prakash was not one of its citizens, many concerns about the 2015 law allowing terrorist dual nationals to be stripped of citizenship were brought into sharp relief. Lawyers who had raised doubts about the laws at the time were reanimated, Australia suddenly found itself in a diplomatic spat with Fiji and Dutton’s political triumph turned to a political headache.
Under the laws, Australian terrorists can be stripped of their citizenship, but only if they hold a second citizenship and therefore will not be rendered stateless, which would breach Australia’s international obligations.
The government doesn’t just have to think someone is a dual national. It has to know, with certainty.
Yet the government has admitted it did not consult Fiji before making the determination about Prakash. In a statement this week, Dutton said the government had been in “close contact with ... Fiji since Mr Prakash was determined to have lost his citizenship”.
A senior Fijian immigration official has said flat out that Prakash is not one of theirs. The country’s Prime Minister, Frank Bainimarama, indicated the same when he said Prakash could never return there because he doesn’t “qualify”.
Lawyers are dubious. Arthur Moses, SC, president of the Law Council of Australia, said it was “presently unclear whether Prakash may hold Fijian citizenship”.
A reading of either the 1990 constitution, which was in force when Prakash was born in Melbourne in 1991, or the more recent 2009 immigration law, indicates fairly clearly Prakash would not be Fijian.
As Kevin Boreham, an international law lecturer at the Australian National University, pointed out, Australia’s High Court couldn’t decide whether senator Matt Canavan was an Italian citizen.
“How much more difficult is it to tell when someone is a citizen of a country with fewer bureaucratic resources and whose laws are less clear?” he said.
The case cannot be tested unless Prakash appeals the decision in an Australian court. Until then, Prakash may or may not be a citizen, whatever the government says.
This total lack of clarity about something so fundamental as citizenship is at the heart of many lawyers’ deep concern about the way this law operates.
The citizenship loss is self-executing. Neither Dutton nor the senior bureaucrats on the citizenship loss board made an active decision to strip Prakash of his citizenship.
Rather Prakash did it himself by being a terrorist.
The law was set up that way to sidestep the constitutional problem with having a minister acting like a judge and declaring someone guilty of terrorism, then punishing them by taking away their citizenship.
At the time, some lawyers branded the government’s solution a “legal fiction”.
Kim Rubenstein, a prominent constitutional lawyer at the Australian National University, said this week that until someone like Prakash took their case to the High Court or Federal Court, it remained unclear whether the citizenship law was even constitutionally valid.
The rule of law relies on the law being clear and publicly accessible, she said.
Whatever lack of sympathy we might feel for Prakash, “we should all be concerned about governments acting in a manner where they can declare events to have happened, even when they haven’t”, she said.
The Prakash case “fundamentally undermines all those foundations to our democratic well-being” including the rule of law, due process, openness, accountability and confidence in the legal decision-maker.
Does this really matter when we are talking about terrorists like Prakash and if, as Dutton has argued, it makes Australians safer? Dutton has said repeatedly he expects Prakash to spend a long time in a Turkish jail and if, after that, he can’t come home to Australia to pose a threat here, fine.
Having been picked up in 2016 trying to sneak from Syria into Turkey, Prakash faces terrorism charges that carry a jail penalty of seven to 15 years. He is now 27 years old, meaning he could be out at the age of 35 or 36.
His next court date is in February.
Greg Barton, a terrorism expert at Deakin University, said just because Prakash couldn’t enter Australia did not mean he ceased to be a threat here. He is wanted, after all, because he is believed to have inspired or directed attacks and plots in this country including the Endeavour Hills knife attack on police by Numan Haider and the Melbourne Anzac Day plot.
“There’s a very real prospect the Turks will release him at some point. Then he’ll slip out into that Turkish community and he’ll be back online. Dutton’s statement that we’ve just made Australia safer doesn’t make any sense,” Barton said.
The best thing, Barton added, was to keep Prakash in jail, where he couldn’t get online. That raises the question of whether the citizenship gambit has damaged Australia’s chances of keeping him in jail, most obviously through the government’s extradition effort to get him back here facing local charges.
Barton acknowledges the extradition prospects weren’t looking great anyway. But given it’s largely a political rather than a judicial decision under Turkey’s increasingly autocratic President Recep Tayyip Erdogan, the citizenship question has made it harder.
“On what basis can we go to the Turks saying, ‘You’ve got to hand him to us’ when we’ve just said he’s not our citizen?”
Kevin Boreham, of the ANU, agrees. Turkish judges would look at the legal facts and wouldn’t require that Prakash is Australian, but “politically, [Australia’s extradition case] does seem a bit contradictory”, he said.
It’s worth noting that, as Dutton has pointed out, other countries including Britain and the US may be interested in getting their hands on Prakash because of his role in encouraging attacks in those countries. The road of justice ahead of Prakash may be a long one.
Boreham, who is also a former diplomat, is one of many people to point out that the government’s use of these laws also has real world consequences when we offend countries like Fiji - a country that is strategically very significant to Australia given China’s push into the Pacific.
If Australia’s national security interests rest on essentially pushing our undesirables onto other countries, particularly friendly ones, we are going to have problems.
“This is clearly going to be problem between us and Fiji,” Boreham said. “If we are in the business of declaring someone to be a citizen of that country, we are likely to get into awkward political situations.”
Barton asks, with respect to Australia’s international obligations, whether we should be pushing our terrorists onto countries such as Lebanon when “the last thing they need is more terrorists”.
Labor suggested Dutton announced the Prakash determination for his own political aggrandisement, with shadow attorney-general Mark Dreyfus saying it was "very concerning that the chaos and division within the Liberal Party are impacting governance in national security".
Further complicating matters, the government is trying to pass changes to the citizenship law meaning the home affairs minister would only have to be “reasonably satisfied” that a person was a dual national before stripping them of their Australian citizenship, lowering the bar and potentially creating more Fiji-style stand-offs.
Boreham said the Prakash experience raised questions over “further weakening the case that has to be made” that someone is a dual national.
With potentially dozens of other Australian targets for citizenship-stripping, any move in that direction could mean more unhappy foreign governments.