Public commentary on Peter Dutton’s possible referendum on a ministerial discretion to deprive dual nationals of their Australian citizenship has focused on whether or not this is just a thought bubble and whether or not it is politically wise to be holding yet another referendum. The real issue goes much deeper, to the merits of the proposal. Ministerial powers to remove Australian citizenship fundamentally devalue it. Dual nationals are the biggest losers.

In a recent article Australian immigration and the federal election, I speculated that the Coalition might “squeeze the citizenship orange” again for political advantage in the federal election context. We did not have to wait long to find out – as evidenced by Peter Dutton’s floating of a possible referendum to give ministers the power to deprive dual nationals of Australian citizenship in certain circumstances.

The Coalition and Dutton have form in this area with the adoption of a negative approach to Australian citizenship from 2007 onwards. The worst example was the highly restrictive legislation for acquisition of Australian citizenship introduced into Parliament in 2017 (although not passed into law).

We don’t know whether Dutton is serious about this proposal or just throwing out a “tough vibe” message to set the tone in the lead-up to the election. The usual approach is to raise a threat of potential harm to the community from migrant Australians and to assure us we will be made safe by expelling them at the end of their criminal sentences, even if they are Australian citizens.

Too much public discussion has focused on the fact that it’s the wrong issue on which to be holding a referendum or the fact that it won’t get approved. The real issue is that it is just very bad policy. Ministers should not have these powers. If they get them, you can be quite sure it will be the thin end of the wedge. It’s conceivable that such powers could even affect you and your family in the future.

In the years since Australian citizenship came into existence on 26 January 1949, successive Australian governments have seen the acquisition of citizenship by migrants as a way of building an inclusive society of Australian citizens. For decades, requirements for acquisition of Australian citizenship were progressively eased and the take-up of citizenship actively promoted. The idea was to speed up the integration of migrants by giving them an equal stake in Australian society.

In the past, Australian governments have emphasised that Australian citizenship is enduring and permanent. Crimes committed by Australian citizens were to be punished under Australian law, but Australian citizens still belonged in Australia after they had served their time in prison.

That certainty of Australian citizenship has come under pressure in recent years with the introduction of laws to strip Australian citizens who are dual nationals of their Australian citizenship and remove them to their country of origin based on conviction for certain offences – after they had served their prison sentences. Not surprisingly, the High Court has declared that governments do not have the power to punish people in this way and that only the Courts could do so under the Australian Constitution. Bending to Opposition pressure and fear of being wedged, the Labor Government has retained the policy of stripping Australian citizenship from dual nationals who commit certain offences and removing them from Australia, but has put final decision-making in the hands of the courts with more safeguards.

The irony of this approach is that an Australian citizen without dual nationality who is convicted of exactly the same crime, in company with an Australian citizen of dual nationality, just gets let out of jail at the end of their sentence without any further issues at all. One is to be thrown out of the country; the other stays. The power extends to Australian citizen dual nationals who were born in Australia and have never been outside the country.

The small number of convicted Australian citizen dual nationals who remain a danger to the community after serving their prison sentences can be dealt with under state and territory laws designed for this purpose, rather than going down the pathway of citizenship deprivation and removal from Australia.

The strategic issue of most concern is that dual citizens now have a lesser class of citizenship than other Australian citizens. The principle is already established.

The key element of the Dutton proposal is that constitutional change would ensure that ministers have the power to take citizenship off dual citizens convicted of certain crimes and remove them to the country of their other citizenship without the involvement of the courts.

It would be a further serious erosion of the status of Australian citizenship.

Who are the Australians who have the second-class Australian citizenship?

There are millions of Australian citizens with dual citizenship. Current official figures are hard to come by, but numbers as high as four million people have been quoted in the past.

Most dual nationals would probably be migrants from the United Kingdom and New Zealand. Every United Kingdom and New Zealand citizen who migrated to Australia and became an Australian citizen would have retained their original citizenship as well.

Many people of continental European origin who became Australian citizens have retained their original citizenship or, more recently, have availed themselves of access to a second citizenship as a result of legal changes in the country of origin.

Many Australians are dual nationals because their parents were working overseas (often for the Australian Government or the Armed Forces – as in my own case) when they were born.

Ironically, it was a Coalition Government that in 2002 expanded the scope for Australians to be dual nationals. From 1949, under Australian citizenship law, adult Australian-born citizens lost their Australian citizenship if they actively obtained another. Reflecting the growth of an Australian-born diaspora (particularly in the UK and US), the Howard Government very sensibly changed the law so that Australians would not lose their citizenship on gaining another.

Many Australians may not be aware of their dual nationality. Not so long ago, we discovered that many of our federal parliamentarians and political candidates were quite ignorant of their own citizenship status when they found themselves ineligible to be in the Australian Parliament under section 44 of the Constitution because of their dual nationality.

So why should law-abiding Australian citizen dual nationals be worried about giving ministers, rather than courts, the power to take away their Australian citizenship and remove them from the country?

The history of immigration law in Australia shows that extraordinary powers, particularly in relation to detention, revocation of citizenship and removal from Australia are initially introduced at times of perceived crisis. We are assured they will only be used in exceptional circumstances in relation to particularly odious crimes. Their use then becomes commonplace over time.

If the kind of power envisaged by Dutton through constitutional change actually happened, it would absolutely entrench those Australian citizens who have dual nationality as having a second class of Australian citizenship. Once ministers had the power to deprive Australian dual nationals of their Australian citizenship it could be expected that those powers would be widened over time to deal with new “crises". These kinds of changes are tempting for ministers who want to appear tough or those who cannot resist populist demands.

It is not inconceivable that people who regarded themselves as Australians for their entire life could find themselves being deported to a country they didn’t know because they did, or believed, something that suddenly became unacceptable in the context of the hot political issue of the day. One only needs to look at Donald Trump’s America to see people being fired from senior positions in government for the most spurious reasons. Anyone who is a dual national in Australia should be worried about expanding government powers and ministerial discretions in this area, because you (and possibly your children and grandchildren) are potentially the target one day.

If the Constitution were to be changed in any way in relation to Australian citizenship, the best thing would be for the Constitution to guarantee its inviolability, including for dual nationals.