Stripping citizenship hits legal hurdle

The Abbott Government has hit a legal hurdle in its bid to change the law to strip dual nationals of their Australian citizenship, if they are suspected of being terrorists.

The ABC understands the Solicitor-General has declared the bill unconstitutional in its current form, because it hands a minister the power to declare someone guilty without a trial.

But the Government said the bill is still being drafted, it will be tabled next week, and will be constitutionally sound.

The plan to strip suspected terrorists of their citizenship was the subject of a Cabinet brawl three weeks ago.

At least six ministers raised serious concerns both about the shoddy Cabinet process and that one of its original elements — to strip suspected terrorists who are sole nationals of citizenship — was an affront to the rule of law.

That proposal has been put out for public consultation but the Government is pressing ahead with its plan to strip dual national terror suspects of their citizenship.

The Government argues that it requires only a minor amendment to Section 35 of the Citizenship Act, which automatically erases the rights of those who fight against Australia in war.

However, Professor George Williams from the University of New South Wales is one of a number of constitutional law experts who said the legislation would face the strong prospect of being struck down by the High Court.

"Well there are certainly grounds in the citizenship legislation at the moment to strip someone of citizenship, but it's not the minister that makes that decision," he said.

"It happens automatically and there's the scope for a court to examine that issue."

There are some compelling similarities between the proposal that a minister could declare someone a terrorist and the Menzies government bid to ban the Communist party in the 1950s.

Those laws included the power to declare someone a Communist.

"The High Court has been particularly active in striking down laws that do amount to a breach of the separation of powers," Professor Williams said.

"They have struck down anti-bikie laws for example.

"And even if we go back a long way to the Communist party legislation of 1951, there the High Court struck down that law because it gave a minister a power that only a court should be exercising."