Transcript

How does the exercise of judicial power shape national security law and policymaking in Australia?
What legal safeguards exist to balance civil liberties and national security?
Why do the principles of citizenship matter in Australia’s legal system and national security decisions?

In this episode, Rebecca Ananian-Welsh and Sangeetha Pillai join Danielle Ireland-Piper to explore the separation of powers in national security law in Australia, the role of courts, and the challenges surrounding citizenship laws.

(This transcript is AI-generated and may contain inaccuracies.)

Sangeetha Pillai

Are we going to reach a point where the court makes a distinction between how it treats cases that are about what can be done to non-citizens and what can be done to citizens, or are going to keep seeing this parallel where they increasingly converge?

Rebecca Ananian-Welsh

The majority of the High Court talked about the separation of powers and really its role as a bulwark of liberty. So liberty, protecting bodily integrity, protecting not citizens but people and what the state can do to them.

NatSecPod

You're listening to the National Security Podcast, the show that brings you expert analysis, insights and opinion on the national security challenges facing Australia and the Indo-Pacific. Produced by the ANU National Security College.

Danielle Ireland-Piper

Welcome to the National Security Podcast. I'm Danielle Ireland Piper, Associate Professor and Academic Director at the ANU National Security College. Today's podcast is being recorded on the lands of the Ngunnawal and Namburi peoples, and we pay our respects to elders past and present. In today's episode, I'm delighted to be joined by Sangeetha Pillai and Rebecca Annanian-Welsh, two of my contributing authors to a new edited volume, National Security Law in Australia.

Dr. Sangeetha Pillai is a constitutional lawyer and teaches at the University of New South Wales. And associate professor Rebecca Ananian-Welsh is a constitutional law scholar and editor of the University of Queensland Law Journal at the TC Berne School of Law. Sangeetha, Bec, welcome to the podcast.

Rebecca Ananian-Welsh

Thanks.

Sangeetha Pillai

Thanks.

Danielle Ireland-Piper

It's so great to have you here. And I must admit we had a wonderful launch event last night and I was really academic crushing on both of you.

Not least because of your ability to explain really technical stuff in a really accessible way. But also it turns out Sangeetha has a side talent as a folk musician. So, you know, be warned listeners, we may end up going there. All jokes aside, the book, National Security Law is an interdisciplinary volume that engages with a wide range of issues that are touched on by national security policymakers.

 So one of those areas, Bec, is the issue of the independence of courts. And in a system like Australia, where we don't have a constitutional charter of rights, very often it's courts that are the guardians of our constitution. And the court is the only thing sometimes that stands between an individual and a state and that can serve as an effective check and balance on the use of power. And of course we want our national security practitioners to have that long leash to keep us safe because of national security is about guarding a nation's existence, its values and its people. But at the same time, we don't want to become what we seek to defeat. So in your view, what role does the issue of the exercise of judicial power in the Australian setting have to play in national security law and lawmaking?

Rebecca Ananian-Welsh

The judiciary plays this kind of, they're often called the bulwark of freedom. And that is particularly so in Australia, the only Western democracy without a national bill of rights or charter of rights. So when you think about, when I think about constitutional law, I think about power, when you think about national security, you need a lot of power, which is what you were saying. And for really important reasons, like keeping the state going.

But how do we control the limits of that power? How do we know when it should, when it is exercised in the right way, how it should be exercised, et cetera, et cetera. What the courts do really simply is just check the legality of exercises of power. So all the power the executive has, it has because it was given it by law. And so it is controlled by law. And that means we need the courts to exercise some sort of power here. And they do that even though they're unelected and even though they have no actual personal experience in the national security realm whatsoever, including not having security clearance or knowing the kind of international relations context this might happen in.

Danielle Ireland-Piper

Isn’t that a good thing? mean, one might say, wouldn't it be better to have national security experts presiding over questions of national security law in a judicial sense? But in another sense, it's a depoliticized organ, the fact that that is not the case and they can only consider matters of law as opposed to matters of politics. Is that a good thing?

Rebecca Ananian-Welsh

Well, it has risks. over the centuries, so going back into English kind of like common law principles, it's really well accepted that there are definitely lines that the judiciary shouldn't cross. If the executive says something is a national security issue or do we need this for national security, the judiciary will be very cautious, very deferential in reconsidering that and second guessing it. That said, they can't just give them a blank cheque.

So there needs to be those, those really traditional legal things like evidence. You need to prove it somehow. And we have ways that the executive can induce information and keep it secret. It needs to be evidence. Things need to be tested and wherever possible it should happen in open court.

Danielle Ireland-Piper

Yeah, and I guess there's also advantages to having decision makers who aren't elected. So judges aren't elected in Australia, they're appointed. And so they can make in some ways the right decision rather than the popular decision.

Rebecca Ananian-Welsh

And they're appointed by the parliament and the executive though. So there is this link and you can have, and I guess we see this particularly in the administrative decision making kind of realm and you have administrative tribunals doing national security kind of decision making as well, where these people have experience in parliament or in the executive branch and then they're there performing a merits review of those decisions.

So it's not a complete disjuncture. But when courts are doing what courts do, they're, they're, beholden to the law. Their primary thing is what is legal. And that can be law on the books. And when you get to the constitution, it means values as well, like justice and fairness.

Danielle Ireland-Piper

And I guess if we go back to the notion of what the rule of law is, and of course that's a contested notion, but at its most thin, the rule of law requires a review of executive action. And in a way that is what, what courts do – they review. And so what are the kinds of matters that a court might hear that relates to independence of the courts?

Rebecca Ananian-Welsh

When does the court get to figure out how independent the court is? So national security, lots of what we're talking about is federal and the separation of judicial power. that, that wall between the judiciary and between the rest of government is protected by what we call in nerdy circles, the Boilermakers principle, which is a strict separation of power. Courts as a general rule can only do things that are judicial power and the rest of the branches cannot do judicial power.

Danielle Ireland-Piper

So does that mean, for example, that the executive arm of government can't punish?

Rebecca Ananian-Welsh

Absolutely, yes. executive, you couldn't have a police officer that would also decide someone was criminally guilty and then send them to jail and sentence them for that. You couldn't have a minister doing all three of those things, know, judge, jury and executioner, that kind of thing. So one of the key cases in the past where this came up was back in 2005, control orders were introduced and in 2007, the high court had to figure out where they're constraining someone's liberty in a control order, a counter-terrorism control order, for what they might do in the future, for the risk they pose to the community, whether putting them under house arrest or curfews or whatever else, was a judicial thing or was that more administrative? And it was a split decision, but the court came down saying that was judicial. And now we have court-ordered control orders across Australia, not just in the terrorism sphere.

Danielle Ireland-Piper

I think more than most areas of law, the principles of separation of powers really illustrate that in one case, something can seem a bit objectionable, but what we want as a principle carrying forward for how we govern society is the bigger point sometimes. It might be in one case, that person deserves to be punished in this scenario. We don't feel particularly sympathetic to this accused person, but do we want a society where the executive government could punish someone or detain them in circumstances where there's no oversight or independence. And I guess that really illustrates that point.

Rebecca Ananian-Welsh

Absolutely. A lot of the most interesting cases you see before the high court involve terrorist offenders or convicted sex offenders or people who've committed potential war crimes or risky kind of people who are stateless but also have committed child sex offenses and things. They're not necessarily nice people that we want to let into the community, but the principles are there.

Danielle Ireland-Piper

…to guard the rest of us.

Rebecca Ananian-Welsh

That's it. The courts aren't concerned about majority rules. They're concerned about the law and the values and civil liberties, and that might be protecting one person from the majority.

Danielle Ireland-Piper

Thanks, Bec. In some ways, the principles of justice are most tested in unpopular cases.

Rebecca Ananian-Welsh

Absolutely.

Danielle Ireland-Piper

So Sangeetha, your area of expertise is citizenship and you very kindly, thank you, contributed a chapter on that in the book. And in some ways, citizenship is the cornerstone of national security because it sets up the relationship between the state and the citizen. And the mandate of national security is to protect citizens of a state. And so in what ways do you think the principles of citizenship are important to our legal system and important to how we think about national security?

Sangeetha Pillai

Umm…I think since I started working in this area…which was quite sometime ago, I found it difficult to…I suppose we think that we know the principles of citizenship, that it's the right to have rights, that it's this really important thing. I kept seeing a lot of people saying this is really important. When I sat down and I tried to get into, how does that translate into the law? I found it was so vague. It was so unclear. It's like there is so much assumption about what citizenship means and so little in the way of what makes that concrete. And so I think what's really interesting about citizenship in the national security space too. I'm going to try and like, in a coherent way, you know, pick up on a lot of the very good things that you just said.

Sangeetha Pillai

I think first it's like, is that relationship between the citizen and the state? What do citizens owe the state and what does the state owe citizens? And that's changed quite a lot at various points in time. so now with many states kind of moving towards citizenship revocation in the last decade or so, there's this idea that people owe something to their state, you have an obligation to be a good citizen, you have an obligation to your country is something that has quite a lot has been made of. for many decades, like the last time we really saw this, the last time we really saw a lot of denationalization was in the first, like leading up to World War II. It kind of fell away after that. And so for an entire more than a generation, we've not really talked a lot about this idea of what people owe the state. It's been a right to have rights, something protective for citizens.

I think the other really interesting thing, and you touched on this as well in the national security context, is what's national security and what's international security? Because yeah, on one frame, it is that the state's duty is to protect citizens as a collective, and you could say that that might mean taking away rights from citizens as individuals when they're dangerous. But we are seeing a lot of security issues that are not purely national. Even when they are national, they often have an international dimension. People travel to all across the world, pick up whatever influences, become radicalized wherever they're going to become radicalized, and then go wherever they're going to go, which might be back to their home country or it might be somewhere else.

And so I think there are questions about how defensible or how good it is for countries to take a really parochial concern with their own security and not think about how everything fits together. so I think how that relates to citizenship revocation is.

Australia has a lot of counterterrorism laws. What's the number now? Is it 100 yet? I think it's over 100 now. When I wrote my book chapter, it was over 90 and I think it might've clocked over 100.

 

We have a really robust infrastructure for dealing with security issues. Not every country in the world does. So if we take citizenship away from people and basically kick them out to an environment where they might stay in an environment where they're becoming radicalized, where there isn't that infrastructure, they could end up creating a greater risk. Globally. Globally. yeah, has always been awkward. when the concept of citizenship was.

I think citizenship is...first conceived of. Everyone was attached to one state. And so now that's not the case. People have multiple citizenships and when we take it away, we only do it when they have multiple citizenships, even if they pose the same risk as people that only have one. that kind of like idea of people, the relationship between globalization and global citizenship was always weird and I national security's made it weirder.

Danielle Ireland-Piper

Yeah, this comes up in the context of international law. So one basis on which a nation state can assert its jurisdiction extra-territorially across territory is on the basis of nationality and citizenship. And this has come up a very similar argument to what you're making is that, well, if a nation state has the authority to regulate the conduct of its citizens overseas, then in revoking that citizenship, in some ways it's abdicating its responsibility to take care of that citizen. And as you say, they may be in an environment where rule of law has broken down or is less stable. And it may be actually that our country of citizenship or their own country of citizenship is in a better position to prosecute bad behavior. So therefore, instead of revoking citizenship, perhaps prosecution is actually the more responsible action, both as a global citizen. Yeah.

Sangeetha Pillai

Yeah, absolutely.

Danielle Ireland-Piper

And have we seen this play out in case studies as well? I know in the media in the last 12 months, we have seen reports of the High Court considering the issue of citizenship revocation. And I understand that was in the context of persons who had gone and fought in conflicts overseas in a way that might demonstrate allegiance to a foreign power, for example.

Sangeetha Pillai

We had absolutely no case law on this for a really long time. And now we're starting to get quite a lot of it.

So the story of Australia introduced citizenship revocation laws in 2015 was the first attempt that they had at it. They've now had three attempts at it. And I think the really interesting thing is from the moment that they proposed citizenship stripping laws, every constitutional lawyer in the in country basically showed up at parliamentary in pro. That is not going to fly. This is not, it's like, it is unanimous. it's kind of rare that things are unanimous.

Rebecca Ananian-Welsh

I think it was your submission with George Williams where I think it led with, we've made submissions to, we can't even count, I'm not quoting, inquiries to counterterrorism laws. have never just outright said no.

Danielle Ireland-Piper

Yep. remember the draft had a line in it saying the principles of natural justice will not apply.

Sangeetha Pillai

They do that quite a lot. Sometimes get away with it sometimes don't. Yeah,

had before they introduced the legislation in 2015, they had a draft bill in 2014 that was somehow even less likely to pass constitutional muster and then it changed a little

bit, but the mechanic that they set up, it took 10, almost not 10 years, but almost 10 years, seven years for this to get before the high court. But the fact that it was likely to run into constitutional problems was flagged at the very beginning. And so I think that's really interesting. Like why did it take so long and how did we get there? But they tried really hard to avoid constitutional problems and they did it by saying that you like Rebecca was just saying…you can't have non-judicial power power exercised by, by, executive decision makers and you can't have, power exercised. So there was this question about like, is taking away citizenship going to be punishment? Is it going to be setting up the executive to be judge, and executioner and can we not do that? The way they wrote the law was, well, nobody makes the decision. If you do a bad thing, you

just lose your citizenship and it'll just happen. And so they were trying to create, like it's a fiction, obviously, like that may happen, nothing., you know, happens unless somebody in some government department decides that you've lost your citizenship and that they're going to treat you as a non-citizen but they tried to take the decision making out of it to stay off the court’s turf.

There were real questions about what the court would have to say about that if it got to a court. That version never did because the government departments themselves said, this is such a mess. is jeopardizing all of the other security legislation. It's jeopardizing like all of the criminal stuff. It's such a mess. So they ended up without it getting anywhere near a court, repealing that law and rewriting it where the model was that the minister did have the power to make a decision. Eventually that got before the high court and in a case before. So there were two parts to it. There was one part that said if you did a bad thing, even if you weren't convicted of any crime, if you did a bad thing overseas and the minister or a government department found that you'd done engaged in an activity that was prejudicial to security in some sense.

It wasn't even national security. Some of it was national, some of it was international. Some of it didn't have a really clear link with security at all. Like one of the things that could lead to you losing your citizenship was if you went to a place that the government had declared to be a no-go zone without necessarily doing anything hostile, without being picked up for anything if you just went there. So was a broad range of stuff, all connected, but to varying degrees to security. If you did that and the government found that you'd done it, they could discretionarily take away your citizenship. So this happened to a lot of people, but eventually it happened to a guy called Delil Alexander who had traveled to somewhere in Syria. And the government found that he'd gone there and they wanted to take away his citizenship. And it got into the high court and the high court found that giving this power to the minister was unconstitutional because it was a judicial power. But it took seven years for it to get into the high court because this was a power that it was this without a conviction being necessary part of the legislation that was used the most. And it was used against people that were outside Australia that exercising your rights in a court when you're on the other half of the world potentially, I don't know, like with varying levels of connection to Australia, exercising your right, going to the court and saying, think this is unconstitutional is a really difficult thing to do. So no one did it for seven years.

Danielle Ireland-Piper

There's an access to justice issue.

Sangeetha Pillai

Access to justice. And in the case of Alexander, it was almost a perfect storm. It almost didn't get into the court at all. And that was despite everyone being so on the ball because there were so many lawyers waiting for the right chance to jump on this. And what he actually did was he went to an area that was that, I mentioned it, like, you know, he had gone somewhere that he wasn't, that was declared a no-go zone. He hadn't done anything there. He'd admitted to some criminal activity, but had later said that he did that under torture and that was accepted. And so he was pardoned for that. That was in Syria. So he, on the face of it, done nothing wrong and he denied having done anything wrong.

What he actually did. we don't know, like he was done for just going somewhere..

Danielle Ireland-Piper

He hadn't been charged, necessarily.

Sangeetha Pillai

There was no evidence of him doing anything other than going to this place. The government said not to go.

Danielle Ireland-Piper

It was deemed to be something for which you could lose your citizenship.

Sangeetha Pillai

For which you could lose your citizenship, it was one of the things that was least connected with terrorism. So one of the weakest grounds for citizenship revocation. he was a perfect plain, as sympathetic as people get in this area. About as sympathetic as you're likely to get.

Rebecca Ananian-Welsh

And believe he couldn't even be contacted. He was in prison in Syria somewhere. it was his sister who brought the action.

Sangeetha Pillai

His sister brought the action. was here. His lawyers jumped in, submissions were filed within 11 days of them finding out. Everyone sprung into action. So they were so quick. And then two days after the submissions were filed, they completely lost contact with him. I keep Googling him saying, has he popped up? As far as I know, he hasn't. So it was run. If you hadn't had a sister on the ground here willing to kind of do that, it wouldn't have happened. And it almost didn't if it had been two days later.

Like it probably wouldn't have have happened again. it's real access to justice issues.

Danielle Ireland-Piper

And you mentioned there was a second part to the case.

Sangeetha Pillai

Yeah, so in that case, Alexander, the two parts to this citizenship revocation law, one was if you go and do a bad thing without any conviction, if the government thinks you've done a bad thing, then they can take away your citizenship. The second was if you are convicted. And was kind of the same things broadly, but this required you to be convicted. And then again, there was a discretion to

 

to take away citizenship. so that wasn't really used that much. was the first one that tended to be used against people that were overseas. But the conviction-based revocation power was used once against a guy called Ben Bricker who has come up in kind of national security cases. And a year after Alexander, that was challenged as well. And the high court found that that was also unconstitutional because the the executive exercising this discretion to take away citizenship got on the court's turf, even though a conviction required so it was like arguably less on the court's turf. The court was still like no.

Danielle Ireland-Piper

And I guess I think you alluded to this point earlier as well, because at international law states are asked not to make a person stateless. This particular citizenship revocation regime only applied to a person who had dual citizenship. And I guess one of the consequences of that, in a way, you're creating a class of citizens. There are persons who can't have their citizenship, Australian citizenship revoked and there are persons who can. And I guess, was that anything considered by the quarter? Or is that just more an overarching policy issue?

Sangeetha Pillai

It wasn't like …it's something that's come up has been considered by the court, but the main thrust of these cases was what's the court's turf and what's executive turf. Citizenship came up in this case. In these cases, the court said a lot of things about how fundamental the right of citizenship is. But what you're talking about, like creating two tiers of citizenship has come up in the court when a lot of parliamentarians were found.

Ther was a real question then about, cause there has been a question about whether a hanging, one of the hanging questions about the aliens power, if qualify as a constitutional alien, then you can be expelled for any reason whatsoever, it's overwhelming power over you. and there has been a hanging question for decades about whether people with dual citizenship could be constitutional aliens, because there's been this question about.

Sangeetha Pillai

Is alienage about your connection to somewhere else or is it about a lack of connection to Australia? And if it's about your connection to somewhere else, then arguably that captures dual citizens and parliaments tried it on a few times in the end. And the court's always been pretty unsympathetic. And in the, yeah, when the parliamentarians like having dual citizenship issue, the court made it really clear that we should not have two tiers of like, you know, dual citizens are not aliens.

But that's a different issue from whether you can lose citizenship and taking away citizenship from dual citizens absolutely does create two tiers.

Danielle Ireland-Piper

I guess that's a complicated thing in today's society, as you say, you know, back when, when citizenship was more homogenous, that's sort of one thing, but today's society is so interconnected and people can have connections to multiple countries. You know, they can fall in love, they can go and study overseas. So this idea of only one citizenship is in some ways an outdated concept.

NatSecPod

We'll be right back.

In this disrupted world, Australia needs security professionals more than ever. Join the next generation studying at the ANU National Security College. Our programs uniquely fuse academic knowledge with practitioner experience and fit around your lifestyle with study offered online and on campus. Follow the link in the show notes for more information about programs and scholarships. The ANU National Security College. Engaging minds for a secure Australia.

Danielle Ireland-Piper

Bec, I might bring you in here, as Sangeetha has alluded to, there was a separation of powers component to the citizenship revocation too. Would you like to make any comment on that? Or are there any other issues that you see in the future? Not asking you to predict the future, but what do you see as being hot issues in your area of law coming forward?

Rebecca Ananian-Welsh

So one of the hot issues in my area of law is this separation of powers issues around how we deal with aliens and non-citizens.

Danielle Ireland-Piper

And of course by aliens, don't mean extraterrestrials. We mean non-Citizens.

Rebecca Ananian-Welsh

Non-citizens, absolutely. It does paint a funny picture though, doesn't it? It was really all about separation of powers. As we said, no Bill of Rights, no kind of, if we had a Bill of Rights, how much would it protect non-citizens? Anyway, we didn't have to get into that. They had to argue these things, which just felt wrong through a separation of powers lens. That was done by this notion of punishment. I was just thinking, about your question there about statelessness. And I don't know what the court would have done with it, which I think is what Sangeetha was saying, because they didn't have to get there because they found that citizenship revocation was so serious all on its own, even when it doesn't lead to statelessness, it was worse than imprisonment. And everything really hinged on that, that you were treating someone in this incredibly severe way. And the state can only do, the state can treat people in incredibly severe ways. We know that. But if it amounts to punishment, that needs to have a criminal trial unless, and this is what the court only came up with in 2023 or clarified, it's reasonably capable of being seen as necessary to serve a legitimate non-punitive purpose. What that means is that you have a purpose for doing that thing that's not punishment.

The severe way that you're treating someone is linked to, or you could say proportionate to that non-punitive purpose. So there've been cases where someone, there's been a lot of cases. But think about losing a broadcasting license. So that can feel like a big, severe thing for a broadcaster.

Danielle Ireland-Piper

Like the National Security Podcast.

Rebecca Ananian-Welsh

You would never want that to happen and it would feel like a desperate punishment, not only to you, but all the wonderful listeners. But it wouldn't be punishment because we know we have to maintain broadcasting standards and that that serves an important purpose in society and that we just accept that an administrative person could do that. Taking someone's citizenship away, that's special kind of punishment. There was no non-punitive purpose this was effectively serving, which was another thing coming out of the same, it was great submissions. like this and a wonderful article, think, Melbourne Union Law Review. This is serving no real purpose. You're not protecting international security. You're barely protecting national security. So that helped them there. What is really interesting is a case that came down last year called YBFZ in the High Court.

Where we've seen a big shift in the high court into that values part of the separation of powers and a less strict kind of interpretation of, the law says this and that's the end of it. Moving away from imprisonment and citizenship revocation, some of the things that we've seen imposed on non-citizens who for one reason or another, we don't want to grant a visa to but who also might be stateless or not able to be sent overseas.

A solution to what to do with these people, because we can't keep them in detention forever, that would be punishment, is curfews and ankle bracelets. So electronic monitoring restrictions on when they can leave the house. And a majority of the high court talked about the separation of powers and really its role as a bulwark of liberty. So liberty, protecting bodily integrity, protecting not citizens, but people and what the state can do to them and said these things they're experiencing are punishment. It's not up to the citizenship revocation level. It's not up to the imprisonment level, but all these things that they're experiencing are really impacting their liberty and bodily integrity. And we're willing to say that is punishment. A majority of the court couldn't find a legitimate non-punitive purpose that that was proportionate to.

And so they said that was unconstitutional, that it couldn't be exercised by the administrative branch. It needed to have gone through the court system somehow. So there's two really interesting future directions that's going to send us in. One is there's a lot of things that the administrative arm of government does that infringe on liberty and bodily integrity. Are those punishment to every single one of those have a non-punitive purpose and is proportionate to that non-punitive purpose? Like what is the next thing that's going to be challenged? That's really interesting.

The other one, which hasn't been talked about as much because I'm going to assume it hasn't been used. I think everyone talked about it if it had, is the reaction to these cases, these citizenship revocation cases, legislatively, was to move it to the courts. Was to say, all right, high court, you say this is a judicial thing, you say it's punishment, you need a criminal trial, then we're going to plonk this down in the sentence. So if someone is sentenced for a serious offense, then the minister can kind of apply to the court to add to that sentence, that kind of added extra, the bonus level of also caught would you consider revocation. Absolutely. we now have like banishment, exile, don't know, citizenship revocation, denationalization as of sentence in this country, which is all sorts of new territory. That's been on the books for a while now. Hasn't been used yet. It will be used. There will be someone, there will be the next Ben Breaker who is coming up, who commits a terrorism crime or commits something that is incredibly unpopular, gets everyone riled up and the minister will step up and say, we want this person denationalized. They would serve their sentence in Australia the second they would get out of jail, they would go into immigration detention and then their deportation would be processed if possible.

Danielle Ireland-Piper

What's your reaction to that, Sangeetha, because some would argue that a step like that devalues citizenship for everybody. If something so essential to a human's relationship with the state can be taken away, does that devalue the notion of citizenship overall?

Sangeetha Pillai

Don't know if I have a really good and pithy answer to that, but I have a ton of thoughts. And I think it is that what we have been seeing play out for a good number of years now and what is really starting to come to a head now is that what can be done to citizens and what can be done to non-citizens is sort of converging. There's been a trend I've noticed for a while where, because migration has been linked with security – correctly or incorrectly since 2001.

The securitization of migration is another thing that we talk about. So it was kind of like, there was a long history of kind of using powers in as broad a way as possible with non-citizens and in 2015 moved to doing similar things to citizens. So it was almost like applying something that had been done kind of routinely. It becomes just part of practice in the space of non-citizens became extended to citizenship. Citizenship has become harder to get and easier to lose. on both ends, on both the non-citizen end of it, people that are seeking to become part of Australian community and the citizenship end of it, people that are already in the Australian community, security, the relationship with the state is becoming less stable. That's not to say that everyone is that nobody will become a citizen and everyone's at risk of losing it, but it's easier to lose and harder to get. And we're seeing the really interesting thing in the cases is we're seeing the same, the court striking down laws now in both the migration space and the citizenship space using the same logic and parliament being really determined. Like the parallels are almost spooky. It's like in both the immigration detention.

And the citizenship stripping context, the response to the court saying, can't do this, it's unconstitutional was for parliament to draft a new law trying to do it and try and get around that decision within weeks of the decision without going through normal legislative scrutiny process without any external consultation. And of course there's going to be another case on both of them. And the question is, how much is this the logic of the what the high court has to say about like, yeah, are we going to continue to see this? Are we going to reach a point where the court makes a distinction between how it treats cases that are about what can be done to non-citizens and what can be done to citizens? Are we going to keep seeing this parallel where they increasingly converge? think I'll be really interested.

Danielle Ireland-Piper

That’s a really interesting space to watch. And for those who might have an interest in the issue of securitization of migration, there was another national security podcast with guests, Alan Gamlen, Kate Ogg and Dorota Gozdecka as well for those who might be interested. So Sangeetha and Bec, are in coming up to the month where we celebrate International Women's Day. Reflecting on your careers, you're both very accomplished women, wonderful chapter contributions and of course many other publications and teachers and mentors and what have you. Reflecting back on your own experiences, what advice would you give a younger version of yourself or what advice would you give someone who's thinking about a similar career to yourself? So I'll start with you, Sangeetha.

Sangeetha Pillai

This is not specific to this area at all, but it's, I think, the best advice I could give anyone and it has explained my entire career, like weird and curly as it has been.

Find the people that bring out the best in you and hold. Hold onto those people like for dear life and everything will sort of work itself out. Like I don't, I have never had any success going into something being like, I want to be here and I will do whatever it takes. Like some people maybe can do that, but for me, every time I said yes, based on the person, the vibe, rather than the strategy, it has just opened so many doors.

Danielle Ireland-Piper

Relationships are so important and the importance of taking advice from others. Often when people ask me about doing a PhD, I say, choose the supervisor, not the university. And that's a similar thing to what you're saying because, you know, your ability to get great mentorship and good advice is so important. What about you, Bec?

Rebecca Ananian-Welsh

Mine would be, the first thing that came to my mind, which I now feel like I've got permission to say, was like the dark side of yours, which is don't be afraid to quit. So I've done a lot of jumping around and at the time, I've done public sector, I've done private sector and then academia. And at the time it felt like I was failing at everything because I'd left law school thinking, now I need to get on this straight and narrow.

Danielle Ireland-Piper

Go to a law firm and off you go.

Rebecca Ananian-Welsh

Yes, yeah. And I didn't get those grad jobs in Sydney and I order like, no, I'm not doing a judge's associate shift. So realizing now I can look back at, I was so not cut out for that. That wasn't failing at everything. That was finding the thing that I ended up finding the people and that environment that then you just went, no, this works for me. For national security in particular, this, someone can turn this into advice. I can't on the fly, but the realization I've had is that you could think you'd be forgiven for thinking that academics are the crazy lefties and that the security sphere is the kind of right wing lock them all up. And it's just not the case at all. In this space more than any other I've experienced.

Everyone is aiming for the same thing. We all believe in security and we all believe in fundamental liberties and keeping people safe and keeping people happy and well and justice, fairness, all these things that I care about, the limits of power and the scope of power. Everyone actually is on the same page around that and it's just trying to target these incredibly…Well, law has to be so precise and black and white and the security world is not and it's constantly changing. So that's hard. this space you would not, I didn't expect it. This space is full of those wonderful relationships of everyone actually working together in a really collaborative interdisciplinary, like we have great debates and disagreements working towards that goal.

Danielle Ireland-Piper

It's a wonderful thing when those in the academy who also may have experience in practice can coincide and hang out with those who are doing the policy or operational aspects because we all stand to benefit from the thinkers and the doers and meeting because of course we can both do the other.

That's really wise words Sangeetha and Bec and particularly that point about there's not only one path to getting to do the work that you like. You can follow your own instincts as both of you have and change careers and do it a different way. There's not just one path for everyone. And I think that's a really great advice for anyone starting out on their careers or thinking about making a career change as well. I'm really grateful to both of you for your time on the podcast today. Please do read both of their chapters. They're really a wonderful contribution to the body of national security law in Australia.

So Sangeetha and Bec,

Sangeetha Pillai

Thank you.

Rebecca Ananian-Welsh (42:35)

Thank you very much. Its been great.

NatSecPod

Thank you for listening to the National Security Podcast. We welcome listener feedback and suggestions at any time, so please get in contact at netsecpod at anu.edu.au. For more important conversations about Australia's national security, please subscribe to the podcast, our YouTube channel, and follow us on Twitter and LinkedIn to receive the latest updates.