Referendum needed for Dutton’s call to toughen citizenship-stripping laws, expert says

Constitutional law expert Helen Irving says such a change appears to be a distraction from serious nature of anti-Israeli comments from NSW nurses. Peter Dutton’s proposal to toughen citizenship-stripping laws in response to comments made by two NSW nurses would probably require a referendum, a constitutional lawyer says. Both major party leaders have been accused of a “bidding war” on who can look tougher on the issue, with Abul Rizvi, a former senior immigration official, urging politicians not to throw more petrol on the fire amid social tensions.

The video, published this week by Israeli content creator Max Veifer, has attracted widespread political condemnation after two Bankstown nurses were recorded saying they wouldn’t treat Israeli patients under their care. The male nurse has since apologised through his lawyer. Sign up for Guardian Australia’s breaking news email. On Thursday, the federal health minister, Mark Butler, said the Nursing and Midwifery Council of NSW had suspended both nurses’ registrations. The Australian Health Practitioner Regulation Agency automatically updated its record on the public register of practitioners, meaning the two nurses are “unable to practise nursing anywhere in Australia, in any context”, Butler said.

Anthony Albanese described the comments as “sickening and shameful” on Wednesday but Dutton has suggested more drastic measures be considered, including stripping one of the nurses of their citizenship. On Thursday, the opposition leader said a public debate was necessary to resolve the “inadequacies” of the citizenship system. “I think it’s a conversation for our country at some point, maybe sooner than later, about how we can say to these people, ‘if you don’t share our values, if you’re here and you’re enjoying the welfare system and you’re enjoying free health and free education, then at the same time you hate our country, well, I don’t think you’ve got a place here’,” Dutton told 2GB on Thursday.

Dutton said a “proper process” should be in place to “understand how this individual became an Australian citizen and where the failing in the system originated and how we can make sure it doesn’t happen again”. Guardian Australia understands one of the nurses gained citizenship in 2020, years after fleeing from Afghanistan to Australia as a child, while Dutton was home affairs minister. “Constitutional constraints” allowing citizens to stay in the country, regardless of their loyalty, should be of “deep concern” to Australians, Dutton said.

In 2022, the high court ruled the home affairs minister’s powers to strip dual nationals of Australian citizenship as unconstitutional, describing it as “punishment in the sense of retribution” and depriving a person of citizenship based on the minister’s discretion rather than a conviction. Under the existing citizenship cessation laws changed after the high court ruling, a minister can apply for a court order to consider whether a person with dual citizenship – and who has been convicted of a serious offence, including terrorism, espionage, foreign interference, with a jail sentence of at least three years – should have their Australian citizenship stripped.

Helen Irving, a constitutional law expert, said a future Dutton government wanting tougher powers to strip dual citizens for hate speech offences could attempt to lower the existing law’s threshold or change the constitution through a referendum. Sign up to Breaking News Australia. Get the most important news as it breaks. after newsletter promotion. However, Irving said there were simpler solutions that could be considered for easing tensions and this appeared to be a distraction.

“If there was a clear constitutional solution, obviously that would need to be considered. But I think we don’t want to distract or deflect from looking at the really serious nature of what those nurses said,” she said. Rizvi, a former deputy secretary of the immigration department, criticised both leaders for attempting to one-up the other in an effort to look tough. “There’s a bidding war going on here, and whatever the government comes up with, I’m sure, Mr Dutton, will want to trump that,” he said.

“Where people say things out of passion, you rarely solve those with legislation. That’s not the solution.”. The former senior official said now was a time for calm. “I haven’t found many [politicians] who have talked about calming things down,” Rizvi said. “All of them are looking at the politics and thinking, ‘How do I position myself to benefit politically?’ … Few people seem to be worried about social cohesion and calming things down in a multicultural society.”.