The Australian p12 "Dual citizenship is not a human right," declares Bret Walker SC. In his final report as the Independent National Security Legislation Monitor, published in April last year, Walker sets out a succinct, compelling rationale for giving the minister for immigration power to revoke citizenship for dual citizens. His recommendation is clear: "Consideration should be given to the introduction of a power for the Minister for Immigration to revoke the citizenship of Australians, where to do so would not render them stateless, where the Minister is satisfied that the person has engaged in acts prejudicial to Australia's security and it is not in Australia's interests for the person to remain in Australia." In light of this, his comments in recent days - proposing a requirement for a prior conviction and strong judicial oversight are curious. At no point does Walker propose this in his original report.

Walker's report raises many important points including his deep concern with dual or multiple citizenship and its implications for Australia's counterterrorism effort. He asserts it was a mistake in 2002 for the parliament to grant such an entitlement and recommends that multiple citizenship be abolished.

Last week the UN's top counter terrorist official, Jean-Paul Laborde, made a similar point: "If somebody has a double citizenship and one state wants to protect the society, they have to take the measures they weigh are best for society." It is little wonder the government now proposes such a law.

Beyond this, Walker also argues there should be a widening of the classes of terrorism offences where the citizenship of dual nationals are automatically revoked.

He contends that "taking into account Australia's international obligations, and the national security and counterterrorism risks posed" and what other comparable countries are doing, a minister should exercise such a discretion.

To support his recommendation he points to a similar discretion in Britain. There, the secretary of state may deprive a dual national of their citizenship status if satisfied that the "deprivation is conducive to the public good".

This is a very broad discretion and requires no conviction.

Walker is careful to confine his proposal to dual citizens. He makes clear the minister should not have the power to revoke the citizenship of a sole Australian citizen who would be rendered stateless. On this issue he points to Australia's international obligations and the consensus on this point of various government agencies. Walker's recent claim that the government's blueprint is based on a mistaken reading of his report is puzzling. The recommendations in the report were clear and unambiguous. The context and content of the report together with his strong reputation and eye for detail make the claim hard to accept.

I can't find any qualification or implication that Walker then considered there should be a conviction before the minister exercise the discretion. Read it and judge for yourself.

Note also that Walker raises no constitutional impediments. Some have suggested the constitutional validity of revoking citizenship may be odds with the principles established in the famous Communist Party case decided in 1951.

Walker makes no mention of the case or any other impediment.

Claims by some that revocation of citizenship by a minister breaches the separation of powers doctrine confound a bush lawyer like me. According to this argument revocation of citizenship gives a minister the equivalent of judicial power. I was taught that the role of a judge is to adjudicate disputes about existing rights and liabilities and to decide criminal guilt. Politicians make the rules; and ministers propose laws and execute government policy.

Only those who dislike democracy and want to replace it with government by "independent expert" could ever argue that judges should universally exercise broad discretions. These days, to ensure that the wheels of the administrative state keep turning over on a daily basis, ministers routinely exercise broad discretions of many kinds. Ministers for immigration, attorneys-general and foreign ministers in particular frequently exercise broad discretions which have profound impacts on the future rights and interests of people.

Public law and political theory scholars recognise that these discretions must be exercised by the executive branch. The idea that we should instead ask judges to exercise all broad discretions (and thereby execute government policy) is totally impractical, and would render timely and effective government decision making impossible.

It makes sense to have a robust debate about the breadth and depth of a discretion given to a minister under contentious legislation. We need a very serious discussion before we propose a law that permits a minister to render an Australian citizen stateless. We can certainly query what kind of judicial oversight should apply in such a case. Walker's report puts sole citizens in quite a different category.

In the meantime, a note to politicians, commentators, constitutional law scholars, human rights commissioners and others: dual citizenship is not a human right. It's something the parliament granted in 2002. Bret Walker's original report was his best work on this issue, and anyone interested in the topic should read it and interpret it on its own terms.

We can only guess about the motivation for his change of mind.

Angus Taylor is the Liberal member for Hume. He was a Rhodes Scholar and law graduate from the University of Sydney.