More Than Just a Humble Abode: The Implications of Constitutional Citizenship Rights for Passport Law

• Author: Fabian Di Lizia
• Position: BA (Media), LLB (Hons) (Syd); solicitor, New South Wales. I am indebted to Dr Rayner Thwaites for his feedback and guidance on this article. I would also like to thank various other reviewers for their comments and suggestions. The views expressed in this article reflect the personal views of the author. Any remaining errors are my own
• Pages: 116-156

MORE THAN JUST A HUMBLE ABODE: THE

IMPLICATIONS OF CONSTITUTIONAL CITIZENSHIP

RIGHTS FOR PASSPORT LAW

FABI AN DI LI ZIA *

An Australian citizen is abroad and wants to return home. The

Commonwealth cancels their passport and refuses to issue a new one,

effectively excluding them from Australia. What remedy does the law provide?

Further to conventional administrative law grounds, this article contends the

Constitution may be a source of remedy. It builds on previous scholarship and

jurisprudence which suggests that the Constitution confers a special

citizenship status, attached to which are a right of abode in Australia and to

‘positive protection’ (such as diplomatic protection and consular assistance).

As experience from other jurisdictions shows, such rights may have

implications for Parliament’s power, particularly its power to deprive citizens

of passports.

I INTR ODU CTI ON

Commonwealth powers with respect to passports have been a recent matter

of political and legal debate following legislative reforms to aspects of the

Australian passports regime. 1 Those reforms were implemented to address

concerns Parliament had about ‘foreign fighters’ (people who have participated in

overseas conflicts associated with terrorism) returning home. 2 The reforms were

a component, albeit a critical one, of the Counter-Terrorism Legislation

Amendment (Foreign Fighters) Act 2014 (Cth) (the ‘Foreign Fighters Amendment

Act’).3 Amendments to the passports regime increased the Commonwealth’s

* BA (Media), LLB (Hons) (S yd); solicitor, New South Wales. I am indebted to Dr Rayner Thwaites for

his feedback and guidance on this article. I would also like to thank various other reviewers for their

comments and suggestions. The views expressed in this article reflect the personal views of the author.

Any remaining errors are my own.

1 See generally Department of Parliamentary Services (Cth), Bills Digest, No 34 of 2014–15, 17 October

2014, 7–15, 23–6.

2 The description ‘foreign fighters’ is used in the Revised Explanatory Memorandum, Co unter-Terrorism

Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) 2 [1].

3 For a comprehensive list see ibid 4–9.

117 University of Western Australia Law Review Vol 44(1):1

power with respect to passport decisions.4 The rationale for the increased powers

was to allow the Commonwealth to greater affect foreign fighters’ use of their

passports; thereby increasing the Commonwealth’s ability to thwart their travel

plans.5 The precursor report to the Foreign Fighters Amendment Act underpinned

this rationale. In that report, the Independent National Security Legislation

Monitor (the ‘INSLM’) stated that by affecting a person’s passport, the

Commonwealth may prevent ‘nefarious travel’ more effectively than through the

use of control orders.6

The implications of the changed passport arrangements are being tested. One

Australian they have affected is Oliver Bridgeman. He is a 19 year-old who

travelled from Toowoomba to Syria in March 2015.7 Bridgeman has claimed that

he has been doing aid work in Syria and that he is not involved in fighting in the

ongoing Syrian civil war.8 In early 2016, Bridgeman expressed a desire to return

to Australia in light of the increased intensity of violent conflict in Syria since his

arrival.9 At that stage, Bridgeman’s family and lawyer advised the Australian

Federal Police (the ‘AFP’) that Bridgeman wished to return to Australia. 10

Bridgeman’s family was finalising plans for Bridgeman to return to Australia.11

His return looked imminent, but the Commonwealth cancelled his passport.12 The

Commonwealth’s reason for cancellation was that Bridgeman was likely to

4 See Foreign Fighters Amendment Act sch 1 pt 1 items 11–26.

5 See Revised Explanatory Memorandum, Counter-Terrorism Legislation Amendment (Foreign Fighters)

Bill 2014 (Cth) 12–14; see generally Bret Walker, ‘Annual Report’ (Report, Independent National

Security Legislation Monitor, 28 March 2014) 40

<https://www.dpmc.gov.au/sites/default/files/publications/inslm-annual-report-20140328.pdf>.

6 See Walker, above n 5, 38.

7 Michael Safi, ‘Queensland Teenager Oliver Bridgeman Denies Joining Al-Qaida Affiliate in S yria’,

The Guardian (online), 24 August 2015 <http://www.theguardian.com/australia-

news/2015/aug/24/queensland-teenager-oliver-bridgeman-denies-joining-al-qaida-in-syria>.

8 Kym Agius, ‘Queensland Teenager Oliver Bridgeman Denies Joining Terrorist Group in Syria’, ABC

(online), 17 June 2015 <http://www.abc.net.au/news/2015-06-17/oliver-bridgeman-says-he-has-not-

taken-up-arms-in-syria/6551770>.

9 Josh Bavas, ‘Queensland teen Oliver Bridgeman Stranded in Syria After Federal Government Cancels

His Passport’, ABC (online), 27 February 2016 <http://www.abc.net.au/news/2016-02-26/oliver-

bridgeman-stranded-syria-federal-gov-cancel-passport/7204250>; ‘Government Defends Decision to

Cancel Passport of Queensland Teenager in Syria Oliver Bridgeman’, ABC (online), 27 February 2016

<http://www.abc.net.au/news/2016-02-27/government-defends-decision-cancel-oliver-bridgeman-

passport/7205508>.

10 Mark Solomons, ‘Oliver Bridgeman: Arrest Warrant Issued for Queensland Teenager in Syria’, ABC

(online), 4 March 2016 <http://www.abc.net.au/news/2016-03-03/oliver-bridgeman-syria-arrest-

warrant-issued-toowoomba/7217628>; ‘Queensland Teenager Oliver Bridgeman Appeals Against

Decision to Cancel P assport While in Syria’, ABC (online), 29 February 2 016

<http://www.abc.net.au/news/2016-02-29/appeal-against-fed-gov-decision-cancel-oliver-bridgeman-

passport/7207200>.

11 Solomons, above n 10.

12 Nathanael Coop er, ‘Queensland Teenager Oliver Bridgeman’s Passport Cancelled by DFAT’,

Brisbane Times (online), 26 February 2016

<http://www.brisbanetimes.com.au/queensland/queensland-teenager-oliver-bridgemans-passport-

cancelled-by-dfat-20160226-gn4z4o.html>; Solomons, above n 10.

118 University of Western Australia Law Review Vol 44(1):1

engage in conduct prejudicial to national security and cancelling his passport

would prevent this.13 Bridgeman was instructed to deliver his passport to the

nearest Australian consulate in Turkey, where he might be given travel documents

to return to Australia.14 Bridgeman’s passport cancellation attempts to foreclose

his travel generally. Issuing Bridgeman with travel documents would only allow

him to travel to Australia, as they are issued on a provisional basis.15

Bridgeman’s cancelled passport leaves him in a problematic position. Over

two years have passed since the cancellation of Bridgeman’s passport, and he

appears to still remain in Syria. 16 As Bridgeman’s lawyers ha ve stated, if

Bridgeman chose to exit Syria for Turkey in order to potentially obtain travel

documents from an Australian consulate in order to return to Australia, that would

constitute an offence under Australian law. 17 In particular, to cross the Syria-

Turkey border, Bridgeman would have to travel on his cancelled Australian

passport. That would be an offence carrying a penalty of 10 years

imprisonment.18 There are no options for Bridgeman to directly travel from Syria

to Australia.19 Even if he could, that would require the Commonwealth to issue

him travel documents in Syria, which it has not done. Therefore, Bridgeman is

effectively stranded in Syria.

Bridgeman’s travel to Syria is significant because Parliament is of the view

that Syria is a source of security threats to Australia, as reflected in the revised

explanatory memorandum of the Foreign Fighters Amendment Act.20 That

revised explanatory memorandum states that Syria is a source of security threats

to Australia because Australians that have participated in the current civil war

there ‘often possess enhanced capabilities to undertake terrorist and other acts that

13 Cooper, above n 12; Adrian Raschella and Ben Sveen, ‘Queensland Teen Oliver Bridgeman Calls

Passport Cancellation “absolutely ridiculous”’, ABC (online), 13 March 2016

<http://www.abc.net.au/news/2016-03-12/oliver-bridgeman-cancellation-passport-ridiculous-qld-

teenager/7242452>.

14 ‘Qld Teenager Stranded in Syria: Lawyer’, SBS (online), 26 February 2016

<http://www.sbs.com.au/news/article/2016/02/26/qld-teenager-stranded-syria-lawyer>; ‘Queensland

Teenager Oliver Bridgeman Appeals Against Decision to Cancel Passport While in Syria’, above n 10.

15 See Australian Passports Act 2005 (Cth) s 9(1) (‘APA’); Australian Passports Determination 2015

(Cth) s 9.

16 Andrew Backhouse, ‘Father’s desperate plea to bring son home from Syria, The Chronicle (online), 9

February 2017, < https://www.thechronicle.com.au/news/fathers-desperate-plea-bring-son-home-

syria/3141649/>.

17 Bavas, above n 9.

18 APA s 32(1).

19 ‘How Does a Queensland Teen end up Stu ck in Syria With a Cancelled Passport?’, ABC (online), 1

March 2016 <http://www.abc.net.au/triplej/programs/hack/how-did-queensland-teen-oliver-

bridgeman-end-up-stuck-in-syria/7207964>.

20 Revised Explanatory Memorandum, Counter -Terrorism Legislation Amendment (Foreign Fighters)

Bill 2014 (Cth) 2 [1].