Category: Delegated legislation

The Abbott Government has introduced its citizenship-stripping bill — called the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 — into the House of Representatives. It applies to dual nationals, and contains three new ways they can lose their Australian citizenship: by committing certain crimes, by serving a declared terrorist organisation, or by engaging in certain conduct connected with terrorism.

Under a proposed new section 35A of the Australian Citizenship Act 2007, a dual national “ceases to be an Australian citizen” if and when they are convicted of specified Commonwealth crimes, described as “terrorist offences and certain other offences”. UNSW professor George Williams says the list of offences is too broad, and “appears to cover low-level offences that have only a very minor connection to terrorism”.

Williams points out that damaging Commonwealth property is on the list. This offence is unconnected to terrorism or sedition, and the offender doesn’t even need to know the damaged property belongs to the Commonwealth. If a dual national committed a minor act of vandalism — such as scratching a plaque on the banks of Canberra’s Lake Burley Griffin — their Australian citizenship would be forfeit.

Other parts of the Bill are more clearly tied to terrorism. Under the existing section 35, Australian citizenship “ceases” when a dual national “serves in the armed forces of a country at war with Australia”. The new version would extend this to include “fight[ing] for, or [being] in the service of, a declared terrorist organisation” (there are currently 20 organisations on this list).

The current legislation allows a dual national to apply to the Minister to voluntarily renounce their Australian citizenship. The proposed new section 33AA introduces the concept of “renunciation by conduct”: where a person “acts inconsistently with their allegiance to Australia”, this will be treated as if they had applied to renounce their citizenship. The conduct that triggers this provision ranges from supporting a terrorist organisation through to actually engaging in a terrorist act.

All of these provisions are framed as being automatic, triggered by the action of the person concerned. The Explanatory Memorandum states: “By acting in a manner contrary to their allegiance to Australia, the person has chosen to step outside of the formal Australian community”, and therefore they are effectively removing their own citizenship. However, in practical terms the person’s citizenship will continue to be recognised until the Government makes make a factual determination that the triggering conduct has occurred.

The Bill provides: “If the Minister becomes aware of conduct because of which a person has, under this section, ceased to be an Australian citizen, the Minister must give written notice to that effect at such time and to such persons as the Minister considers appropriate.” Furthermore, the Minister can decide to “rescind the notice”, and they must exercise these powers to issue and rescind notices personally.

While Immigration Minister Peter Dutton claims the law “operate[s] automatically, without a decision from the minister”, the Bill puts the Minister in the position of determining (by “becoming aware”) on behalf of the Government whether the “automatic” cessation of citizenship has occurred. This aspect of the proposal will likely come under scrutiny, as the role of the Minister in the decision-making process was the focus of Cabinet and public debate before the release of the bill.

The bill expressly provides that “[t]he rules of natural justice do not apply in relation to the powers of the Minister”. Natural justice is also referred to as procedural fairness, and generally requires an unbiased decision-maker, a right to be heard about a decision that will affect you, and a decision based on cogent evidence. Chief Justice French has said, “I do not think it too bold to say that the notion of procedural fairness would be widely regarded within the Australian community as indispensable to justice.” Removing these basic standards raises the prospect of unfair decisions being made.

Section 39 of the Australian Security and Intelligence Organisation Act 1979 prohibits the Commonwealth from taking administrative action “on the basis of any communication in relation to a person made by the Organisation not amounting to a security assessment”. The Bill exempts the Minister from complying with this restriction, thereby allowing any information provided by ASIO to be relied upon; Bret Walker SC argues this amounts to “substituting a ministerial opinion based on untested hearsay and intelligence for the verdict of a jury”. ASIO has a history of making errors in even formal security assessments, so any move to rely on preliminary information increases the risk.

The Bill states that “[a]n instrument exercising any of the Minister’s powers under this section is not a legislative instrument.” This is designed to ensure the Minister’s notices are not covered by the Legislative Instruments Act 2003, which would require them to be presented to Parliament, and would make them susceptible to disallowance by a vote of either House.

The Bill also provides that “section 47 does not apply in relation to the exercise of [the Minister’s] powers” — exempting the Minister from the usual requirement to notify the affected person of the decision. As a result, the loss of citizenship under the Bill would be kept secret from the person concerned.

While they would retain the right to seek judicial review of the Minister’s decision to issue a notice, they would not discover this need until they sought to exercise a citizenship right and were refused. For example, a person who found themselves in difficulty overseas and sought consular assistance would be refused, and may not be in a practical position to challenge the decision. Even if they could commence a challenge, they may not know why they had lost their citizenship, and they may not be allowed to see the ASIO intelligence the Minister relied upon.

Labor has indicated it supports the general thrust of the Bill, so it is likely to be passed by Parliament. However, Opposition Leader Bill Shorten indicated he had reservations about some of the details.

If it passes, the Bill is likely to face a High Court challenge. Citizenship law expert Professor Kim Rubenstein told SBS: “The loss of citizenship is a very dramatic change in a person’s status in our democratic system and so the question is: to what extent is there a restriction on the Commonwealth’s power to remove someone’s citizenship and deprive them of their citizenship? There are questions of the separation of powers for automatic loss of citizenship.”