Warning Dutton’s referendum could give ministers too much power
“Whether it’s referendums, whether it be zonal taxation rates, whether it be the other statements that Peter Dutton makes where he’s like, you know, a character dials it up from Spinal Tap. Everything goes up to 11 straight away.”
The proposal has not been through shadow cabinet, but Dutton’s comments reflect his discussions with trusted colleagues in recent months as debate has swirled about antisemitism and the NZYQ cohort released by the High Court in 2023.
Some Coalition MPs who learnt of the referendum through this masthead’s report privately expressed concern that the party should instead be talking about energy prices and economic management. Shadow ministers, including Angus Taylor and Michaelia Cash, have used more guarded language than Dutton when asked about the idea. They have stated the referendum is not party policy and only a last resort.
Constitutional law Professor Anne Twomey
University of Sydney constitutional law expert Anne Twomey said Dutton’s proposal was unclear, but such a referendum could undermine the separation of powers between the government and courts.
The High Court had previously held that judges had the exclusive power to punish people for crimes by removing their citizenship as part of their sentence.
It appeared, Twomey said, that “Dutton wanted to undermine the constitutional separation of powers by giving ministers this judicial power of punishment.”
“Obviously, he wants greater discretion for ministers to deal with these sorts of matters,” Twomey said.
Twomey pointed out that if a referendum were successful, some offenders could easily renounce their foreign citizenship and therefore avoid being stripped of their Australian passport, while others who came from countries where renunciation is impossible or takes a long time, would be caught.
Dutton’s proposal raised the spectre of the 1951 Communist Party referendum defeat, Twomey argued. It initially had huge support because communists were seen as a threat to Australia’s security.
“But in the end it was defeated because it was seen as taking away rights and liberties without due process and judicial fairness,” she said.
Helen Irving, a professor emerita of constitutional law at Sydney University, said it not clear precisely how Dutton was proposing to amend the nation’s founding document.
“What do I imagine it might be? I would guess it would need to be a provision that says that the exercise of ministerial power to strip people of citizenship should not be construed as judicial power,” she said.
Irving said that the amendment could be drafted in a such a way to give power to cancel citizenship for a narrow set of serious crimes. Current law allows ministers to apply to courts to revoke citizenship for serious crimes such as terrorism and treason, but a judge must make the ruling.
Irving added that effectively amending the separation of powers to hand ministers more power on citizenship could be a slippery slope and lead to questions about what other powers could be handed to politicians.
