MLC101: Business Law- Deakin University- Essay Writing Assignment

May 24, 2017
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Short Essay Question

Read the following news report. Assuming that the proposal goes ahead, critically examinethe implications of this proposal for rule of law in Australia.

https://www.smh.com.au/federal-politics/political-news/terrorists-to-lose-citizenship-as-abbottera-laws-go-ahead-20151110-gkvh9v.html

Terrorists to lose citizenship as Abbott-era laws go ahead, The Sydney Morning Herald, byDavid Wroe

November 10, 2015 - 7:47PM

Laws to strip dual national terrorists of their Australian citizenship are set to pass Parliamentas soon as this week after the Turnbull government agreed to make changes recommendedby a cross-party committee of MPs.

The Coalition's joint-party meeting on Tuesday backed the new laws, which will strip the citizenship of terrorists who are either already overseas or are in Australia and have beenconvicted of certain terrorism crimes.

Controversially, some aspects of the laws will be retrospective to ensure they cover a handful of existing prisoners who were convicted and jailed for serious terrorism offences over thepast decade.

Laws to strip dual national terrorists of their Australian citizenship are set to pass Parliament as soon as this week.

Laws to strip dual national terrorists of their Australian citizenship are set to pass Parliament as soon as this week. Photo: Ross Duncan

The high-powered Parliamentary Joint Committee on Intelligence and Security, which includes senior Labor figures, recommended 26 changes to the original legislation proposedby the former Abbott government. Cabinet signed off on those changes, as well as twoadditional amendments, on Monday night.

Under the laws, a dual national automatically renounces their Australian citizenship if they engage in terrorist conduct – an extension of an existing law that does the same for someonewho fights with a foreign military against Australia.

Dual nationals can also lose their citizenship if they are convicted of a terrorism offence. This part of the law will operate retrospectively, going back 10 years from when the bill becomeslaw.

This is understood to affect only a handful of prisoners including the notorious terrorists Abdul Nacer Benbrika and Mohamed Ali Elomar, who are now in prison.

The laws were conceived while Tony Abbott was prime minister but also have the support of Malcolm Turnbull.

The committee's changes have tightened the legislation significantly to exclude people who are still in Australia but have not been convicted of any terrorism offence.

The committee, which is chaired by Victorian Liberal Dan Tehan, also knocked out several relatively minor offences that could have led to a loss of citizenship, including "damaging ordestroying Commonwealth property" and "unlawful drilling".

The government has added two amendments of its own. One change means that a terrorist who has not been convicted has to have had "intent" when they carried out terrorism acts. The other means that a person can lose their citizenship for a range of offences included inthe government's "foreign fighters" legislation, which was passed last year.

The parliamentary committee heard extensive evidence from experts raising questions about who would decide that a person was a terrorist and how.

These decisions will be made by intelligence agencies, police and bureaucrats.

While Labor will need to see the final wording of the laws, the fact the government hasaccepted the bipartisan committee's recommendations means the opposition is likely tosupport the bill.

Separately, the government is expected to introduce to Parliament its fifth set of counter-terrorism laws, which will lower the age at which bail-like conditions called control orders can be applied from 16 to 14. It will also introduce a new offence of "advocacy of genocide".

 

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Element 1: PlanThe essay will be based on determining the effect of the proposed Australian law on the rule of law. The effects will be discussed by the principles of law. The legal principles illustrate that the terrorism suspects should be subjected to a judicial process that is clear, fair and respects human dignity. Terrorism should also be addressed based on the international best practices that encourage legal cooperation among several countries in addressing the security threat. The Abbott-era legislations are aimed at introducing a penalty for dual nationals who participate in terrorism activities. The proposed law advocates for the revocation of the Australian citizenship for the dual nationals who engage in terrorism.

The main challenge that I experienced is determining the most appropriate internet resource to use as a source of information on the topic of terrorism within the legal frameworks of Australia and internationally. I adequately cited the secondary sources in the research. After completing the first draft, I proofread the essay twice so as to correct the grammatical, formatting, and structure errors in the essay. I have ensured that the referencing approach effectively complies with the AGLC style. I completed the assignment in time, to enable me to hand it over to the instructor within the stated timeframe.

Element 2: Effect of the Legislative Proposal on the Rule of Law

In Australia, the rule of law has key principles. The proposed legislation should be constitutional and must adhere to the rule of law principles. The first principle illustrates that the proposed law should be easily known and clear. Secondly, the law should be applied to all individuals in an equal manner, and thus, discrimination are not allowed. The third issue shows that all individuals are presumed to be innocent and subjected to a fair trial. All people should have access to legal advice that is competent. In Australia, the rule of law implies the independence and separation of power of the judiciary from the other arms of government. The sixth principle shows that all executive functions should adhere to the laws or enacted legislations. Individuals must not be given punishment and treatment that is not in line with human dignity. Principle seven indicates that Australia should adhere to the international law and obligations.

The proposed law adheres to the easily known and clear principle because its purpose is explained sufficiently. The law aims at stripping the citizenship of proven terrorists who possess dual Australian citizenship. Stripping dual citizenship is important in discouraging the Australian citizens from engaging in illegal terrorist activities. The proposed legislation is constitutional because it will only become effective after passing all parliamentary processes. The law is non-discriminatory and hence applies equally to all terrorist who possess dual Australian citizenship. Any person who has dual citizenship and is suspected of engaging in terrorist-related activities shall be subjected to the trial process based on the proposed law. The trial will proceed

regardless of social status, race, religion or economic affiliation of the suspects. Any dual national who participates in terrorist activities automatically loses the citizenship of Australia.

All suspects are viewed as innocent until proven otherwise through a judicial process that is fair and conducted through a public platform. The law significantly excludes the individuals who reside in Australia and have not experienced subjection to offenses that are related to terrorism. Australian judicial system operates in a public manner. Any member of the public can attend the court session, and if the case concerns public interest, then the media can broadcast it live. Guilty individuals are the ones who have been convicted for terrorist activities. Abdul Nacer Benbrika is one person who was found guilty of engaging in terrorism, and he is presently serving a prison term.

People who are suspected to have engaged in activities related to terrorism have sufficient access to legal advice that is provided in an independent manner and using competent lawyers. All suspects have the right to get legal advice and also representation. The lawyers will enable the suspects to defend themselves before the judges and the jury. Legal advice is also important when deciding if the committed crime is terror related or not. The distinction should be clearly explained because the proposed law shows that people who engage in terrorist crime will lose their Australian citizenship if they are dual nationals. The loss of the Australian citizenship applies even if the proven terrorists reside within the country or are based overseas. The proposed laws will be implemented retrospectively, and thus, the present prisoners who are convicted to have participated in terror activities will have the Australian citizenship revoked if they are dual nationals.

Australian judiciary is very independent of the legislature and also the judiciary. The judiciary interprets the laws that have been made by Parliament about the revocation of the Australian citizenship for the dual nationals who have been legally found to have committed terror crimes. The judges will rule independently on terror-related charges based on the existing laws, and without any influence from members of the legislatures or the executive. The executive and the legislature are only allowed to engage in activities that are legal. For the proposed law to be constitutional, it must be subjected to all legislative stages and approved by the Australian Parliament and also the executive.

The treatment of the terror suspects should be humane and dignified. The suspects should be taken to the police officers so that their statement can be taken. The suspects should be given the right to access legal advice. The lawyers are responsible for defending them during the court proceedings. All suspects are legally considered as innocent during the trial process. It is only the judges that can declare the guilty verdict if there is sufficient proof of engagement in terror intentions or acts. The punishment provided by the judiciary should be by the law and ethical so as to preserve the human dignity of the offenders. For terror acts and intentions, the Constitution stipulates fines and prison terms. The proposed law explains that the convicted terror offenders will automatically lose their Australian citizenship if they are dual nationals.

The proposed law makes it possible for Australia to comply with international law, best practices and obligations about combating terrorism. It is the responsibility of any country to prevent terrorist acts and intentions domestically and even internationally. The proposed law creates an appropriate avenue for the law enforcement agencies to investigate terrorism activities, subject the subjects to a fair trial process, and provide appropriate punishment. The main punishment that has been proposed is revoking the Australian citizenship of any dual national who has been proved to have engaged in terror intent or acts. The proposed anti-terror law also explains that the current convicted terrorists who are dual nationals will have their Australian citizenship revoked. International law recognizes the rights of suspects; for example, the right to legal advice and a fair judicial process. All terrorism suspects must have an independent legal representative who can either is acquired privately or given by the state on request if the suspect deserves it. Australia cooperates with other countries to ensure that terror suspects are subjected to the court process, and terror perpetrators are punished. Revoking the Australian citizenship of the dual nationals is done if they are proven to have participated in terror activities, even if they are residing in other countries. The suspects can also be deported to Australia so as to face trial over the terrorist activities.

Parliamentary Joint Committee was in charge of developing the proposed law. The Intelligence and Security Committee comprises joint membership from both the opposition and the government. The committee reviewed the initial legislation that was developed by the

previous Abbott government. The cabinet greatly approved the changes to the law. Intelligence agencies, bureaucrats, and the police officers were given enough change to participate in formulating the proposed laws. The government approval of the recommendations generated by the bipartisan committee implies that the opposition will approve the bill. The bill receives a lot of support because it was developed based on wide participation by various agencies of the government.

Conclusion

Abbott-era laws will ensure the realization of the rule of law with regards to the terrorism challenge in Australia and also internationally. The proposed anti-terrorism law is aimed at minimizing or eliminating the terrorism through providing a punishment for the act. One punishment that is proposed in the act for people who have been proven to be terrorists is the revocation of the Australian citizenship from the people who are dual nationals.

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