ABSTRACT
This chapter considers the ability of the Australian Minister for Foreign Affairs (Minister) to cancel the passport of an Australian citizen and refuse the reissue of a new passport on broad national security grounds. The Australian passport regime, overhauled in 2005, empowers the Minister to cancel or refuse to reissue a passport where he or she has formed the opinion that the holder of the passport is likely to engage in conduct that might prejudice the security of Australia or of a foreign country, endanger the health or physical safety of others or interfere with the rights and freedoms of others as set out in the International Covenant on Civil and Political Rights (ICCPR).2 The cancellation of or refusal to reissue a passport is discretionary but the Minister’s decision must be informed by advice from a ‘competent authority’ (for example, in the form of a security assessment by the Australian Security and Intelligence Organisation (ASIO)). Since November 2001, there have reportedly been approximately 37 cancellations
of or refusals to reissue Australian passports on national security grounds.3 Some of these have involved high profile cases such as Mamdouh Habib, former Guantànamo Bay detainee, and Melbourne medical student Syed Hussain. Both Habib and Hussain launched legal action in relation to the Minister’s decisions. This chapter opens with Rabiah Hutchinson’s reaction to losing her passport as
chronicled in the recent book, The Mother of Mohammed.4 Her words provide a rare insight into how this type of executive action is experienced by an individual. The use of the cancellation power in such cases leads to speculation about the scope of this
and other administrative powers to form part of a ‘culture of control’, an executive method of punishing or keeping a person under surveillance in the absence of sufficient evidence to convict a person of (or even charge him or her with) a criminal offence. In this chapter, I raise three issues about the manner in which the executive power
to cancel or refuse passports has been used in Australia since 2001. The first issue focuses on the nature and impact of the lack of specificity in the relevant legislative provisions, a phenomenon often found in the counter-terrorism area. The second issue, related to the first, is that the legislation (despite, as noted above, its explicit reference to the ICCPR) could operate contrary to international human rights norms such as the right to travel,5 the right to family life6 and the right to a fair hearing7 contained in that very Convention. As evidence of this proposition, this chapter provides a summary of the leading cases on passport cancellation in the Australian Administrative Appeals Tribunal (AAT) and Federal Court of Australia. I also summarise attempts to challenge adverse ASIO assessments by two Iraqis detained in Nauru, as well as by United States activist Scott Parkin, which highlight the procedural difficulties of the current process. The cases demonstrate clear breaches of the principles of natural justice. I argue that the Minister’s power to cancel and refuse a visa is not exercised in a proportionate manner, cognisant of the importance of the rights set out in the ICCPR. The third issue relates to how the Minister’s power to cancel and refuse a visa, and
reliance upon the advice of ASIO, has affected ASIO as an institution. There is a need for better regulation and transparency of ASIO’s activities in relation to what amounts to a character assessment of an individual. The question of who is deemed unworthy to hold a passport, and on what grounds, holds deep significance for the nature of Australian citizenship itself.8
