A Passport to Punishment: Administrative Measures of Control for National Security Purposes

Abstract

This chapter considers the ability of the Australian Minister for Foreign Affairs to cancel the passport of an Australian citizen and refuse the re-issue of a new passport on wide national security grounds. The Australian passport regime, overhauled in 2005, empowers the Minister to cancel or refuse to reissue a passport where he or she has formed the opinion that the holder of the passport is likely to engage in conduct that might prejudice the security of Australia or of a foreign country, endanger the health or physical safety of others or interfere with the rights and freedoms of others as set out in the International Covenant on Civil and Political Rights. The minister’s opinion is discretionary but must be informed by advice from a ‘competent authority’ such as a security assessment by the Australian Security and Intelligence Organisation (ASIO). Since November 2001, there have reportedly been approximately 37 cancellations or denials of passports for Australian citizens on national security grounds. Many of these have been high profile cases such as Mamdouh Habib, former Guantanamo Bay detainee, and Melbourne medical student Syed Hussain. Both Habib and Hussein launched legal action. This chapter opens with Rabiah Hutchinson’s reaction to losing her passport as chronicled in the recent book The Mother of Mohammed. Her words provide a rare insight into how this type of executive action is experienced by an individual. The use of the Ministerial power in these cases leads to speculation about the scope of this and other administrative powers to form part of a ‘culture of control’, an executive method of punishing or keeping a person under surveillance in the absence of sufficient evidence of convict a person of (or even charge him or her with) a criminal offence.