Marriages made in hell

Lionel Rodrigues didn’t plan on creating controversy when he enrolled in a master of laws at Deakin University. He had decided to upskill his credentials as a financial adviser in line with regulations when one of the subjects offered at Deakin caught his attention.

“I decided to undertake the master of laws because I had in October 2020 finished the masters of financial planning program and realised that I didn’t know enough about financial services law,” he says.

“As part of the program, I had the option to do insolvency law or terrorism. I decided I had to stress-test myself and go beyond what I knew to be a more well-rounded person and stretch my academic ability and curiosity.”

He thought he could tie a study of terrorism law to his own career in the financial planning industry but ended up exposing a miscarriage of justice about the rights of Australian-born citizens and their alienation by the federal government.

In particular, he opened a debate on the way in which one particular young Australian woman, who had left the country to become what the media dubbed an ISIS bride, had been denied her constitutional rights as an Australian citizen to return home.

“One of the subjects offered was contemporary international issues and it was about terrorism laws,” he says. “There was no textbook for the subject as it was all research-based and I had to produce a mini-thesis. So, I started reading. I came across the topic of anti-money laundering and thought I’d study this and become an expert in this particular area.”

His supervisor told him to come up with a question on which to base his thesis topic, and Rodrigues kept reading.

“I couldn’t help myself and started reading about a lot of other things. I thought I am familiar with anti-money laundering legislation and I wanted to stretch myself and move beyond the narrow confines of the industry.

“I started reading other cases about terrorism globally and came across something I was offended by personally.”

The case was of Zehra Duman, one of Australia's best-known Islamic State brides, who had been released from a Turkish jail after just two months of a seven-year sentence and was living in Turkey with her two young children.

Ms Duman was a dual Australian and Turkish national until mid-2019, when the Australian government stripped her of citizenship over her connections to the Islamic State militant group. She was conveyed the news by a letter which indicated she had ceased to be an Australian citizen because “the minister has become aware that you were in the service of Islamic State outside Australia”.

In her own defence testimony to the Turkish Court, Ms Duman, who was only 19 when she was secreted out of Australia to Syria by ISIS, says she was forced to remarry twice and all three of her husbands were killed in fighting. She also said she was jailed by ISIS for trying to flee the group in early 2017.

Ms Duman’s case led Rodrigues to a similar case in the UK, and he began what would become a passion project, reading judgments and formulating a research question that would be approved by the university.

“I decided on the title of my thesis, ‘National Security versus Terrorism viewed through the Burqa — is denial to a fair trial lawful or justified?’ and answered it through the cases of two women who were stripped of their natural-born citizenship and refused entry on the basis of national security.

“Central to my argument is the increasing use of executive decisions rather than the judiciary and the fact that the line that separates the judiciary and the executive is now becoming blurred. The government is now making decisions that the courts are supposed to make.

“It is disturbing when governments use the rationale that these decisions are meant to be about national security and public benefit. The governments are now saying that being a natural-born citizen of a country is not good enough and they won’t recognise that any longer.

“My argument is that natural-born citizens have citizenship rights that need to be recognised.”

Rodrigues based his thesis around the cases of Duman and the similar UK case of Shamima Begum, who in 2020 had her UK citizenship revoked for similar reasons.

“I used those two cases because they were high-profile cases and when they became ISIS brides, they were just kids — 15 years old. What do you know at that age?” he says.

“In my argument one of the issues I had was that there was a dilemma between my morality — I do believe terrorism of any type is repulsive and I do not agree [with] what these people allegedly do, but then again there is the law and my dilemma is between my morality and the actual law itself.

“There are all sorts of casualties [when government interferes with the judicial process] — intentional and unintentional. There is the casualty in the way of life we have enjoyed. We have lost that global innocence if you like, and some of our freedoms that are enshrined in legislation like the right to come and go as you please, to be judged by your peers, have all been subverted now because of the issue of national security.”

Rodrigues says the issue of citizenship and government interference was again highlighted in the High Court cases of Love v Commonwealth of Australia and Thoms v Commonwealth of Australia, as well as the decision in 2020 by the High Court that recognised the special status of Australia’s First Nations People. The court’s ruling in that case now means that First Nations People who do not have citizenship cannot be deported under the Migration Act 1958.

Daniel Love and Brendan Thoms were men who had failed their migration character tests as a result of serving jail sentences. Neither Love nor Thoms was an Australian citizen, but both identified as Aboriginal Australians. The government was trying to deport both men as aliens under the provisions of the Migration Act 1958, based on a 2014 amendment of the Act.

Love was a recognised member of the Kamilaroi people who was born in Papua New Guinea. He had been placed in immigration detention after he was sentenced to more than a year in jail for assault occasioning actual bodily harm. His permanent residency visa was revoked by then home affairs minister Peter Dutton, but this was later overturned and he was released from detention.

Thoms was a native title holder and a member of the Gunggari people who was born in New Zealand. He was also placed in immigration detention after serving part of an 18-month sentence for domestic violence.

Both had lived in Australia since they were small children and had close family in Australia. Both men were legal Australian permanent residents prior to their jail sentences.

“The Love and Thom cases support the fact that if you are a natural citizen, the government cannot strip you of your citizenship,” Rodrigues says.

“So, in the case of Duman, she should also not be stripped of her citizenship, and the ruling should allow her to return to Australia to face trial.

“We can fly overseas, go to some war-torn country, but can’t get to come home as our rights have been denied because we may be deemed a national security risk. These are constitutional arguments. Countries need to bring their citizens home.

“Clause 29 of the Magna Carta says they must bring their citizens home to face trial. It talks about the judgment of your peers. In the cases of Duman and Begum, these two women have not been bought home and so have not had the opportunity to face the judgment of their peers. They have not been proven guilty nor allowed home to prove their innocence. David Hicks argued similarly and eventually was allowed to re-enter Australia.”

Rodrigues says his thesis highlights the very fragile state of freedoms in Australia and other countries when there is a blurring of the lines between the courts and the government.

“We are losing our protections under the law because that line is being blurred,” he says.

“This can also be transferred to other areas of our lives and freedoms. Government ministers can now make executive decision that can ruin people’s lives. Although I am a legal scholar in this area, in my industry of financial services I have experienced the damage done to consumers by misconceived and unjust over-regulation by the recently deposed Coalition government and their exercise of ministerial discretion.”

“Furthermore, we at IPA belong to a profession. One of the ways to improve our services is through the process of continuous education. My studies have led me to the conclusion that as professionals we have an obligation to use our specialist skills and knowledge for the public benefit. Although my studies of terrorism law does not appear superficially to have any relevance to accounting or financial services, I have discovered that extending the boundaries of my education has given me better insights as to how approach a problem and to enhance the welfare of clients.”