Bills Digest no. 15 2015–16
PDF version [826KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Margaret Harrison-Smith, Law and Bills Digest Section
Cat Barker, Foreign Affairs, Defence and Security Section
2 September 2015
Contents
The
Bills Digest at a glance
Purpose of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 24
June 2015
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
- The
Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Bill)
will amend the Australian Citizenship Act 2007 (Citizenship Act) to provide for
‘automatic’ cessation of the Australian citizenship (including that obtained at
birth) of a dual national where that person:
- renounces
their Australian citizenship by engaging in certain conduct relating to
terrorism and ‘foreign incursions’
- fights
for, or is in the service of, a ‘declared terrorist organisation’ outside
Australia (expanding an existing provision concerning serving in the armed
forces of a country at war with Australia) or
- is
convicted of a specified offence.
- The
Citizenship Act
currently provides for loss of a dual national’s Australian citizenship in very
limited circumstances. The Bill represents a significant expansion of the
circumstances in which Australian citizenship may be lost.
- The
Government states that the Bill is part of ‘a multi-faceted approach’ to
countering the threats to national security posed by an increasing numbers of
foreign fighters, known sympathisers and supporters of extremists and potential
terrorists. The Australian Labor Party has provided ‘in-principle’ support for
changes to citizenship laws in this context. The Australian Greens have been
critical of the Bill.
- Stakeholders
recognise the need for the Government to introduce additional measures to adapt
to new national security threats, and some are accepting of the further
proposition that citizenship cessation may be an appropriate measure in some
circumstances. However, most do not support the Bill in its current form and
have recommended it either not be passed, or be significantly amended before
proceeding.
- Issues
canvassed in this Digest include those associated with:
- the
‘automatic’ nature
of the proposed cessation provisions, including concerns about
constitutionality, lack of clarity as to the operation of the law, and
potentially disproportionate negative consequences that may arise
- the
breadth
of the proposed cessation provisions, such as the range of conduct or offending
they would capture, their application without regard to the particular
circumstances of each case, and their potential application to children
- how
the provisions will
operate in practice, including the grounds on which it is
determined that a person has engaged in conduct, the exclusion of the rules of
natural justice and limited opportunities for judicial and administrative
review and
- the
practical consequences
of the proposed laws, such as instances in which a person cannot return to
another country of nationality and may be subject to prolonged or indefinite
detention in Australia.
- These
issues reflect concerns raised by a range of stakeholders, including peak
professional legal bodies, leading constitutional lawyers, human rights
proponents and community representative bodies, as well as the Parliamentary
Joint Committee on Human Rights and the Senate Standing Committee for the
Scrutiny of Bills. The Parliamentary Joint Committee on Intelligence and
Security has been inquiring into the Bill and is due to report on
2 September 2015.
- Several
stakeholders have recommended an alternative model be adopted if a new
mechanism for citizenship cessation is to be enacted, under which citizenship
revocation could occur only following a relevant conviction, would not be
automatic but based on a further decision of a court or the Minister, the rules
of natural justice would apply and revocation decisions would be subject to
judicial and merits review.
- Against
this background, a careful assessment would seem to be warranted before the Bill
proceeds further.
The Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015 (the Bill) would amend the Australian Citizenship Act 2007
(Cth) (Citizenship Act) to provide for automatic cessation of the
Australian citizenship (including the Australian citizenship by birth) of a
person who is also a national or citizen of another country (a dual national)
where that person:
- renounces
their Australian citizenship by engaging in specified conduct inconsistent with
their allegiance to Australia (item 3 of the Bill, proposed section
33AA)
- fights
for, or is in the service of, a ‘declared terrorist organisation’ outside
Australia (item 4 of the Bill, proposed section 35) or
- is
convicted of a specified offence under the Criminal Code (Cth) or the Crimes
Act 1914 (Cth) (item 5 of the Bill, proposed section 35A).
Cessation of Australian citizenship
under current laws
Under the Citizenship Act as it currently stands,
there are four main ways a person’s Australian citizenship may cease. Specifically,
where:
- a
person explicitly renounces their citizenship in an application approved by the
Minister for Immigration and Border Protection (the Minister)
- the
Minister revokes the person’s citizenship on the basis of a conviction for an
offence relating to fraud in the course of obtaining Australian citizenship, or
for conviction for certain offences after applying for, but before being
granted, Australian citizenship
- the
Minister revokes the person’s citizenship for failure to fulfil residence
conditions associated with becoming an Australian citizen or
- the
person is a national or citizen of another country and serves in the armed
forces of a country at war with Australia; this is a ‘self-executing’
provision, that is, it applies automatically at the time the person’s service
commences.[1]
The first and last of these apply to Australian citizens
by birth; the Ministerial revocation provisions do not. If a person ceases to
hold Australian citizenship for any of the reasons outlined above, the Minister
may revoke the Australian citizenship of any dependent children provided
certain conditions are met, including that the child would not be rendered
stateless.[2]
A June 2015 report by the Australian National Audit
Office states that Australian citizenship has been revoked in only 16 cases
over the 66 years in which Australia has offered citizenship.[3]
The provision under which a person’s citizenship ceases due to service in a
foreign armed force has reportedly never been used.[4]
The proposed amendments in the Bill represent what has
been described by the Director of the Centre for International and Public Law, Professor
Kim Rubenstein, as ‘a major change to the current Citizenship Act, in
that the current Act only has extremely limited ways in which a person can lose
their citizenship’.[5]
Context in which the Bill has been
introduced
Current terrorism threats identified by the Australian Government
and other Western governments include those associated with their nationals
fighting with overseas terrorist and insurgent groups (‘foreign fighters’) and
different forms of ‘home-grown’ terrorism. While the foreign fighter phenomenon
is not new, a range of factors, including the number of individuals currently
involved in conflicts in places such as Iraq and Syria, and the relatively high
proportion from Western nations, has worried authorities. A key concern is the
potential threat these individuals may pose to domestic security upon return.[6]
One of the means that some countries, including the United Kingdom, Canada and
France, have employed to address that particular concern is citizenship
revocation.[7]
The Explanatory Memorandum states that the Bill is part of
‘a multi-faceted approach’ to countering the threats to national security posed
by the increasing numbers of foreign fighters, known sympathisers and
supporters of extremists and potential terrorists.[8]
As part of this approach, the Government states that
the Bill seeks to ‘address the challenges posed by dual citizens who betray
Australia by participating in serious terrorism related activities’, and who
represent ‘a serious threat to Australia and Australia’s interests’, by
broadening the circumstances in which a person may cease to be an Australian
citizen under the Citizenship Act.[9]
Additionally, the Statement of Compatibility with Human Rights states that the
measures proposed in the Bill ‘may also have a deterrent effect by making radicalised
persons aware that their Australian citizenship is in jeopardy, if they
participate in certain conduct contrary to their allegiance to Australia’.[10]
In that context, it is worth noting that Australia already
has fairly comprehensive legal and operational measures in place to deal with
terrorism.[11]
An already strong framework was reinforced through reforms passed in 2014 that
extended and significantly expanded existing powers and offences, and
introduced a range of additional powers and offences.[12]
The most relevant in the context of the current Bill was the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, which introduced
broad-ranging amendments primarily aimed at addressing the increased threat of
terrorism posed by Australians engaging in, and returning from, conflicts in
foreign countries.[13]
Earlier announcement of proposed
changes to citizenship laws
Like current section 35 of the Citizenship Act
(concerning service in foreign armed forces), the three additional grounds in
the Bill relating to the cessation of Australian citizenship are
self-executing, or ‘automatic’ provisions.[14]
This means that at least theoretically, a person would cease to be an
Australian citizen immediately upon the legislative condition being met in each
case, without the need for court, Ministerial, or other implementing action.
In the framing of these provisions, the Bill seeks to
respond to the concern prompted earlier this year by the Government’s formal
announcement of its intention to ‘update’ the Citizenship Act to empower
the Minister to revoke the Australian citizenship of an Australian dual
national who ‘betrays our country by participating in serious terrorist-related
activity’.[15]
This concern stemmed from the view that to place the
decision to revoke a person’s Australian citizenship with the Minister alone
would be contrary to the constitutional separation of powers, as it would
involve the exercise of the judicial power of the Commonwealth by a
non-judicial office holder. The following comments from the Australian Bar
Association are representative of concerns raised at the time by stakeholders
and non-government politicians:
Any proposal which suggests that a Minister might assume the
power to take action impacting upon fundamental rights of citizenship before a
criminal conviction has been secured is deeply troubling.
The proposal is likely to fail, as a matter of constitutional
invalidity, because it imposes a penalty without adjudication by a court
applying traditional safeguards including a fair trial and the rules of
evidence.[16]
Professor Greg Craven, one of
the strongest critics of the original proposal, categorised it as
‘irredeemably unconstitutional’, and suggested that ‘[b]y conferring a
profoundly judicial power on a Minister, it mocks the separation of powers’.[17]
Professor Craven is reported subsequently to have
indicated that ‘the new [self-executing] option was much less likely to fall
foul of the High Court’.[18] However, the
automatic nature of the three proposed cessation provisions included in the
Bill has itself generated a degree of concern about constitutionality, lack of
clarity as to the operation of the law, and potentially disproportionate
negative consequences that may arise. Further comment on the Bill from
stakeholders and interest groups is provided under the Position of major interest groups
and Key issues and
provisions sections below.
The Parliamentary Joint Committee on Intelligence and
Security (PJCIS) commenced an inquiry into the Bill on 26 June 2015
at the request of the Attorney-General.[19]
The Attorney-General also asked the PJCIS to consider whether proposed section
35A of the Bill, which relates to conviction-based cessation of Australian
citizenship, should apply retrospectively to convictions obtained prior to the
commencement of the proposed section. The PJCIS is due to report on
2 September 2015. Details of the inquiry are at the inquiry
homepage.[20]
The Senate Standing Committee for the Scrutiny of Bills has
outlined several concerns in relation to the Bill as a whole, as well as more
specific issues relating to particular provisions.
On cessation in the absence of a criminal conviction (items
3 and 4 of the Bill (proposed sections 33AA and 35) which provide
for the cessation of an Australian dual citizen’s Australian citizenship in
specified circumstances), the Committee stated:
Although citizenship rights have a statutory basis in
Australia, it may be suggested that it misconceives the nature of citizenship
(perhaps especially in relation to persons who have acquired citizenship by
birth) to understand it as a privilege that may be removed or that will cease
as a consequence of criminal misbehaviour, even if that misbehaviour is
serious. Indeed, the deprivation of citizenship based on alleged or suspected
criminal conduct may (like the deprivation of liberty based on a determination
of criminal guilt) be an inherently judicial function, such that it can only be
achieved if it is specified as a penalty that may be imposed if a person is
convicted of a criminal offence.[21]
Beyond that fundamental concern, the Committee raised
significant concerns relating to the fairness of a person losing their
citizenship under those provisions, ‘given that a person may lose their
citizenship on the basis of criminal conduct without
any of the protections associated with a criminal trial’ (emphasis
in original).[22]
Further, it does not consider the automatic nature of the provisions or the
capacity to seek declaratory or injunctive relief alleviate those concerns.[23]
The Committee sought detailed justification from the
Minister on the fairness of proposed sections 33AA and 35 and a
‘detailed and particularised explanation’ as to why each type of conduct listed
in proposed section 33AA is considered an appropriate basis for
automatic loss of citizenship.[24]
The Committee was also concerned about the breadth and
operation of item 5 of the Bill (proposed section 35A),
under which a dual national would lose their Australian citizenship
automatically on conviction of one or more of a range of criminal offences. It noted,
amongst other things:
There is a significant possibility that the application of
the law will not be proportionate to the circumstances of particular cases. The
automatic operation of the provisions means that there is no discretionary
judgment exercised prior to the time that the cessation takes effect.[25]
The Committee also noted that ‘conduct relevant to some of
the offences ... relates to expression and communication’, and queries whether
the cessation of Australian citizenship is ‘appropriate in relation to such
offences, given the obvious implications for freedom of speech ... a matter not
appropriately addressed in the explanatory material’.[26]
The Committee sought a ‘detailed and particularised explanation’ as to why
conviction for each of the offences listed in proposed section 35A
is considered an appropriate basis for automatic loss of citizenship.[27]
On aspects that apply to all three proposed grounds for
cessation, the Committee outlined concerns about the exclusion of the right to
be heard and other rules of natural justice, limitations on judicial review and
the ambiguity and lack of clarity resulting from the automatic nature of the
provisions.[28]
With respect to all three proposed sections, the Committee observes:
From a scrutiny perspective, an unfortunate outcome of the application
of the proposed legislative scheme is that a person may be deemed by government
officials to have lost their citizenship without having been given any prior
opportunity to contest the basis of this conclusion. Nor would a hearing in
relation to this issue be required prior to a government official exercising a
power (such as denying a passport application) on the basis that citizenship
has been lost. This is a matter of grave scrutiny concern given the
significance of interests involved and the importance of the right to a fair
hearing. Indeed, the courts consider procedural fairness to be a fundamental
principle of the common law. In part, the value of a affording a fair hearing
to affected persons is the recognition that doing so increases the likelihood
that the law will be correctly applied and discretionary decisions made on the
basis of relevant information.[29]
The Committee sought further explanation from the Minister
that addresses the lack of procedural fairness of the proposed amendments, justifies
the exclusion of particular safeguards, sets out the rationale for the use of
automatic provisions and provides advice on whether legislative guidance might
be provided to address some of the resulting legal uncertainties.[30]
Further comment on the Bill by the Committee is included in the
Key issues and provisions
section below.
The Parliamentary Joint Committee
on Human Rights’ (PJCHR) report on the Bill includes a detailed analysis of the
rights it identifies as being engaged by certain of the provisions of the Bill.[31]
In its report, the PJCHR raises many issues with the Bill in
the context of key human rights treaties to which Australia is party. The
report sets out three categories of concerns, namely:
- the
Bill’s engagement with a long list of substantive human rights, including the
right to freedom of movement, right to liberty, obligations concerning
non-refoulement, right to a fair hearing and prohibition against double
punishment
- the
Bill’s engagement of procedural and process rights such as those relating to a
fair trial, fair hearing and an effective remedy and
- how
the Bill will impact children, both through substantive loss of citizenship and
as a result of the child’s responsible parent losing his or her citizenship.
The treaty obligations the PJCHR considers to be engaged
by the Bill and not sufficiently addressed in the Statement of Compatibility
include the right to a fair hearing under Article 14 of the International
Covenant on Civil and Political Rights (ICCPR), which applies to
both civil and criminal proceedings, and which the PJCHR considers to be limited
by the proposed provisions. [32]
With respect to the right to a fair trial, (also provided
for under Article 14 of the ICCPR), the PJHCR notes that the ‘Statement
of Compatibility provides insufficient information to allow a full assessment
of this potential limitation, particularly given the unusual construction of
proposed sections 33AA and 35(1).’ [33][34]
Moreover, the PJHCR considers that the Statement of
Compatibility does not acknowledge that the right to a fair trial is limited by
the Bill and that therefore, there is no accompanying justification for this
limitation in the Statement.[35]
The PJHCR also notes that the automatic loss of
citizenship provisions in the Bill apply equally to children and adults. It considers
the Bill’s automatic cessation of citizenship provisions do not accommodate the
best interests of the child (Article 3 of the Convention on the Rights of
the Child), and that the Statement of Compatibility has not demonstrated
consistency with Australia’s obligations in this regard.[36]
More generally, the PJHCR observes that under the Bill,
the conduct justifying the cessation of citizenship includes a broad range of
activities some of which do not appear to ‘reflect a repudiation of
allegiance’. Accordingly the measure appears significantly broader than
necessary’.[37]
The PJCHR has questioned the compatibility of the Bill
with Australia’s human rights obligations in numerous instances and sought substantial
advice from the Minister to aid its further consideration of the issues raised
in its report.
Further comment on the Bill from the PJCHR is included in
the Key issues and
provisions section below.
The Australian Labor Party is reported to have indicated its
bipartisan ‘in principle’ support for the Bill.[38]
The Australian Greens have criticised the Bill on the
grounds that it seeks to ‘bypass the courts’ and lacks procedural fairness. The
Greens also dispute that the Bill will make Australians any safer.[39]
The Palmer United Party was critical of the Government’s
earlier proposal under which the Minister would have had powers to revoke
citizenship, but does not appear to have commented publicly on the Bill since
its introduction.[40]
Shortly ahead of the Bill’s introduction, Senator Nick
Xenophon reportedly questioned whether new citizenship revocation powers would
make Australia safer, indicating he would prefer alleged Australian terrorists
face trial in Australia than remain free overseas.[41]
However, he does not appear to have commented publicly on the Bill since its
introduction.
The policy position of other parties and independents was
not known at the time of the writing of this Bills Digest.
Submitters to the PJCIS’s inquiry into the Bill appear
generally accepting of the need for the Government to introduce additional
measures to adapt to new national security threats. Some are accepting of the
further proposition that citizenship cessation may be appropriate in some
circumstances.[42]
However, most submitters do not support the Bill in its current form and have
recommended substantial redrafting and, in at least one instance, public
consultation on a revised draft, before it proceeds further.[43]
Some of main concerns raised are outlined briefly below.
Further comment on the Bill from stakeholders and interest groups is provided
under the Key issues and
provisions section below.
Constitutionality
One of the main criticisms of the Bill is that notwithstanding
the casting of key provisions as automatic or self-executing provisions to
avoid this consequence, the Bill may nonetheless be in breach of the constitutional
separation of powers.[44]
Professor George Williams submitted in this regard that:
... the bill has not cured the underlying problem about
ministerial discretion. I can see that it has been drafted to deal with the
issue that this decision cannot be made by a minister for constitutional
reasons, but the underlying constitutional reason for that is that the decision
must be made by court. That is an inescapable aspect of the separation of
powers as determined by the High Court. The self-executing model does still not
provide for the decision to be made by a court; it simply amounts to a self-executing
piece of legislation that bypasses the court at the critical moment of
determining whether the requisite liability arises.[45]
It is also suggested by legal experts and practitioners that
some aspects of the Bill may be beyond the scope of the ‘aliens’ power under
section 51(xix) of the Constitution, the power described in the
Explanatory Memorandum as the ‘principal source of power for a person’s
Australian citizenship ceasing’.[46]
For instance, in their joint submission to the PJCIS inquiry into the Bill,
Shipra Chordia, Sangeetha Pillai and Professor George Williams suggest that:
It is ... possible that parts of the Bill may lack the support
of a constitutional head of power. The Explanatory Memorandum for the Bill
states that the primary source of constitutional support for its enactment is
the aliens power in s 51(xix) of the Constitution, relying on the idea that an
alien is ‘a person lacking allegiance to Australia’. However, there has not yet
been a High Court case in which it has been necessary for the Court to decide
the constitutional meaning of ‘alienage’, or for it to determine the outer
limits of Parliament’s power under s 51(xix).
Even if the term ‘alien’, for constitutional purposes, is
understood to mean ‘a person lacking allegiance to Australia’, Parliament does
not have an unfettered discretion to determine when such allegiance is lacking,
and it is likely that certain provisions of the Bill exceed any power that
Parliament does have to determine this question. This is particularly so given
that much of the conduct that triggers the automatic loss of citizenship in the
Bill does not include a necessary element of disloyalty to Australia.[47]
The Law Council of Australia (LCA) also points to
uncertainties with the constitutionality of the Bill, observing in its
submission to the PJCIS inquiry that:
The Commonwealth’s constitutional power to determine who may
be an Australian citizen and when citizenship can be lost through legislation
has been affirmed by the High Court. However, the basis for and the scope of
the Commonwealth’s power to enact citizenship legislation is uncertain.[48]
These constitutional concerns are also reflected in a
number of other submissions to the PJCIS inquiry into the Bill.
Breadth of the new grounds for
citizenship cessation
Stakeholders have raised concerns about the breadth of all
three proposed new grounds for citizenship revocation. The provision that has
attracted the most criticism is proposed section 33AA, which provides
for renunciation by engaging in specified conduct. Dr Rayner Thwaites
of the University of Sydney referred to this as ‘the most legally and
practically problematic in a highly problematic Bill’.[49]
Concerns raised centred around a lack of clarity as to how the provision will
actually operate in practice, lack of clarity as to whether or not renunciation
occurs in the absence of specific intention, recklessness or knowledge, the
automatic loss of citizenship for conduct for which a person either was not, or
would not be convicted of if prosecuted for the corresponding criminal offence,
overlap with proposed section 35A (see below) and the provision’s
application to children.[50]
Concerns about the expansion of existing section 35
to include fighting for, or being in the service of, a ‘declared terrorist
organisation’ (item 4) included the vagueness of the term ‘in the
service of’ and the lack of any clear requirement that the terrorist
organisation is engaged in hostilities with Australian forces or represents a direct
threat to Australia.[51]
Loss of citizenship following a conviction for a specified
offence (proposed section 35A) had the most support from
stakeholders, with many arguing that this should be the only means by which a
person may lose their citizenship on national security grounds.[52]
However, concerns have been raised about the inclusion of certain offences and
about the fact that loss is automatic, so doesn’t entail consideration of
whether the particular circumstances of a case indicate a repudiation of
allegiance to Australia.[53]
Process by which cessation occurs
Many stakeholders raised concerns relating to the
automatic or self-executing nature of the provisions and the associated lack of
transparency as to exactly how they will operate in practice. Concerns were
also raised about the basis on which a determination that one of the grounds
for cessation has been met, the exclusion of the rules of natural justice and
significantly limited opportunities for judicial and administrative review.[54]
An alternative model
A range of stakeholders were of the view that if the
Government considered a new mechanism for cessation is required, it should have
the following characteristics:
- cessation
should only be possible where a person has been convicted and sentenced for a
relevant offence (possibly dependent not only on the maximum penalty for the
offence, but also the actual sentence imposed)
- cessation
should not be automatic—the court or the Minister should be required to decide,
following a relevant conviction, whether a person’s citizenship should be
revoked, based on consideration of the particular circumstances of the case,
the risk the person poses to Australia’s security, international obligations
and standing, and other relevant factors
- the
rules of natural justice and procedural fairness should apply to the decision
to revoke a person’s citizenship
- the
decision to revoke a person’s citizenship should be subject to judicial and
merits review and
- children
should be exempted or subject to additional protections.[55]
The Explanatory Memorandum states that the financial impact
of the Bill will be low, and that any costs will be met from within existing
resources of the Department of Immigration and Border Protection (the
Department).[56]
As required under Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s
compatibility with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[57]
However, as noted earlier in this Digest, the PJCHR has significant concerns
about the Bill and has sought additional advice from the Minister to aid its
further consideration of the Bill’s compatibility with Australia’s
international human rights obligations.[58]
Items 3, 4 and 5 include the key amendments to the Citizenship
Act, proposed sections 33AA, 35 and 35A, all of which can result in
the automatic loss by a person of their Australian citizenship where they are
also a national or citizen of another country (dual national). The remainder of
this section outlines the key issues and provisions in the following order:
- the
three proposed new grounds for citizenship revocation and issues identified
with each, in the order in which they appear in the Bill
- provisions
common to all three proposed new grounds (concerning how they operate, such as
the giving of notice) and associated issues and
- other
issues that arise in relation to the Bill, such as its constitutionality,
whether it is broadly similar to models adopted in comparable jurisdictions and
some of the practical consequences of citizenship cessation, such as the
potential for prolonged or indefinite detention.
Renunciation by engaging in specified conduct
Item 3 will
insert proposed section 33AA to provide that a person who is a dual
national will renounce their Australian citizenship if they
engage in certain conduct inconsistent with ‘their allegiance to Australia’. Proposed
subsection 33AA(2) lists eight types of conduct that will trigger
renunciation, namely:
- engaging
in international terrorist activities using explosive or lethal devices
- engaging
in a terrorist act
- providing
or receiving training connected with preparation for, engagement in, or
assistance in a terrorist act
- directing
the activities of a terrorist organisation
- recruiting
for a terrorist organisation
- financing
terrorism
- financing
a terrorist and
- engaging
in foreign incursions and recruitment.
Proposed subsection 33AA(3) provides that the words
and expressions used in subsection 33AA(2) have the same meaning as in
specified sections of the Criminal Code. Although it is not referred to
in this proposed subsection, the Explanatory Memorandum indicates the term ‘terrorist
act’ is defined in section 100.1 of the Criminal Code.[59]
Issue: Application or otherwise of
fault, defences, exemptions and extensions of criminal responsibility
The implications of references to ‘engaging in conduct’ in
proposed section 33AA, and proposed subsection 33AA(3)
providing that words and expressions used in proposed subsection 33AA(2)
have the same meaning as in specified sections of the Criminal Code, are
unclear.
The provisions referred to in proposed
subsection 33AA(3) all relate to criminal offences. Under the Criminal
Code, offences comprise physical elements (conduct, circumstances and
results) and fault elements that go to the person’s state of mind when they
engaged in the relevant conduct (such as knowledge, intention and recklessness).[60]
Fault elements do not need to be specified for each physical element;
section 5.6 applies the relevant default fault elements unless otherwise
specified.
Because conduct has a particular meaning under the Criminal
Code, it is unclear whether a person renounces their citizenship simply by
engaging in the relevant conduct, or only if they also hold a particular state
of mind when they do so. Further, the Centre for Comparative Constitutional
Studies points out that where a Criminal Code provision sets out
offences with different punishments depending on whether the fault element is
‘knowledge’ or ‘recklessness’ as in section 101.2 (providing or receiving
training with respect to terrorist acts), it is unclear which offence
would trigger the automatic operation of proposed section 33AA.[61]
It is also unclear whether defences or exemptions to the
offences from which meanings are drawn, and extensions of criminal liability
provided under the Criminal Code, such as conspiracy, are intended to
apply.
In seeking to address these
issues, the Department stated:
Whether the person engages in the relevant conduct outlined
in 33AA(2) will be a matter of fact. The phrase used in the Bill ‘a person
engages in the relevant conduct’ must necessarily mean conduct as a whole, and
not restricted to meaning only the physical elements of the provisions in the Criminal
Code.
The meaning of engaging in any of the conduct listed in the
sub-paragraphs of 33AA(2) is to be considered in light of the whole meaning of
the listed phrases.[62]
However, while this may be the intention, it is not a
necessary implication of the provisions themselves. Some submitters to the
PJCIS inquiry argue the intended scope and operation of proposed
section 33AA should be clear in the provision itself.[63]
Issue: Lack of discretion and
absence of criminal law protections
The self-executing or automatic operation of proposed
section 33AA means that the discretions that apply in the criminal
justice system in relation to the same conduct do not exist under the proposed
section.
One such discretion is the determination in each case
whether or not to prosecute. The Centre for Comparative Constitutional Studies states
in its submission to the PJCIS inquiry that (emphasis added):
... unlike the offences in the
Criminal Code to which the provision [section 33AA] is connected, the provision does not
require a decision
to prosecute. The requirement of a decision
by an independent prosecutor that there are reasonable prospects
of a conviction, and that the conviction
is in the public interest, is an
intrinsic limitation on the
operation of the Australian criminal justice system.[64]
The court also has discretion to dismiss charges where it
is satisfied that one or more charges are proven but it is of the opinion,
having regard to certain matters, that it would be inexpedient to proceed to
conviction.[65]
A number of stakeholders also expressed concerns at the
use in proposed section 33AA of criminal law definitions outside the context of
prosecution under the Criminal Code, including in relation to the
different level of proof required.
In its submission to the PJCIS inquiry into the Bill, the LCA
submitted:
Effectively, the Bill supplants what would ordinarily be a
criminal court process in determining whether a person has engaged in certain
conduct with an administrative law process to make the same determination.
This means that rather than the prosecution having to prove
beyond reasonable doubt that a person is guilty of an offence, it must only be
shown on the balance of probabilities that the person engaged in certain
conduct.[66]
Professor Rubenstein considered:
... there are many oddities in this section including the use
of criminal law definitions without the protections of the criminal law
framework in place.[67]
Similarly, Australian Lawyers for Human Rights submitted
(emphasis in original):
... under the Citizenship Act, a conviction for a
(serious) specified offence should be required before citizenship can be
revoked. However the Bill greatly expands the notion in existing section 35 of automatic
termination for certain alleged behaviour, even where no court has
established that the behaviour in fact occurred. This is entirely contrary to Australian
criminal justice standards which require a fair trial, and to Australia’s
obligations as a signatory to the Universal Declaration of Human Rights.[68]
Issue: Overlap with and
relationship to proposed section 35A (cessation upon conviction)
The issues raised above about the different levels of
proof required in determining whether a person has engaged in specified conduct
under proposed section 33AA and the corresponding offence in the Criminal
Code are also relevant to the relationship between the different grounds
for cessation proposed in the Bill. Specifically, proposed section 35A
would provide for automatic cessation of citizenship upon conviction of
particular offences. The offences listed in that provision go beyond the
conduct listed in proposed subsection 33AA(2), but there is substantial
overlap.
One issue raised in this context is the possibility that a
person could be acquitted at trial on the criminal standard of proof, meaning
proposed section 35A would not apply, but nonetheless lose their
citizenship under proposed section 33AA, under which the lower civil
standard would apply.[69]
Some submitters also questioned why the Minister would even wait for the
outcome of a criminal trial where a more expedient mechanism would be
available. Dr Thwaites suggested:
It can be expected that, if the government has two options
available for revocation based on the same conduct, one requiring a successful
criminal conviction and the other dispensing with any need for a criminal
trial, it will choose the latter.[70]
Some submitters to the PJCIS raised the possibility that,
given the overlap between the two provisions, it might be the Government’s
intention for proposed section 33AA to apply only to conduct that occurs
outside Australia, with conduct inside Australia to be dealt with under
proposed section 35A. They state that if that is the intended operation of
the provisions, this should be made explicit in the legislation.[71]
The Explanatory Memorandum states that proposed section
33AA will have ‘limited impact with respect to minors’.[72]
Noting that under the Criminal Code, a child under 10 years of age is
not criminally responsible for an offence, and a child from 10 to 14 years can
only be criminally responsible for an offence ‘if the child knows his or her
conduct is wrong’, the Explanatory Memorandum states ‘[t]hese restrictions will
apply to the application of new section 33AA’.[73]
However, as the LCA submitted, although these Criminal
Code protections would apply to children convicted of an offence under proposed
section 35A (see below), ‘[t]hey would not, contrary to statements in the
Explanatory Memorandum, appear to apply to the application of new section 33AA
and 35’.[74]
The LCA also notes with reference to the Minister’s
discretionary power to make an exemption where he or she considers that it
would be in the public interest to do so under proposed subsection 33AA(7)
of the Bill (see below), that:
... there are no age restrictions in the Bill or any mandatory
requirement on the Minister to apply the Criminal Code restrictions in
decisions of whether to issue a notice or an exemption.[75]
Moreover while under the Bill:
... the Minister’s discretionary power to make an exemption
where it would be in the public interest may ... include consideration of matters
relating to minors, including the best interests of the child, any impact
cessation may have on the child and Australia’s obligations to children ... such
considerations are not mandatory’.[76]
Relatedly, the Centre for Comparative Constitutional
Studies notes that while the Explanatory Memorandum states that proposed
section 33AA will not apply to minors, ‘the Statement of Compatibility clearly
states ... that the proposed amendments are to apply to all citizens “regardless
of age”’.[77] In fact, the
Statement of Compatibility goes on to state:
The Government has considered the best interests of the child
in these circumstances where conduct of a minor is serious enough to engage the
cessation or renunciation provisions and has assessed that the protection of
the Australian Community and Australia’s national security outweighs the best
interests of the child.[78]
Cessation through service outside
Australia in the armed forces of an enemy country or a declared terrorist
organisation
Item 4 will repeal current section 35 of the Citizenship
Act (service in armed forces of enemy country) and substitute proposed
section 35 (service outside Australia in armed forces of an enemy country
or a declared terrorist organisation).
Serving in armed forces at war with
Australia
The proposed provision preserves cessation of Australian
citizenship under current section 35 for Australian dual nationals who serve in
the armed forces of a country ‘at war’ with Australia (proposed subparagraph
35(1)(b)(i)).
From its inception in 1948, Australia’s citizenship
legislation has included a provision to the same effect as current section 35.[79]
Like the proposed cessation provisions included in the Bill, current section 35
applies automatically, and extends in its application to dual nationals
regardless of how they acquired their Australian citizenship.
While noting the synergies between current section 35 and
the Bill’s proposed provisions for the loss of Australian citizenship, the LCA observes
that current section 35 provides for the automatic revocation of citizenship
‘in a very confined and relatively obvious circumstance, with its narrow
application demonstrated by it never having been used’.[80]
In contrast, in a criticism (which may be construed as
extending to all three of the Bill’s proposed revocation provisions) the LCA
notes that:
The Bill significantly expands the scope of such automatic
revocation to a wide and vague set of variable circumstances. It is undesirable
to have a broad range of conduct and factually variable scenarios automatically
giving rise to a change in status of citizenship without some satisfactory
mechanism for fact finding and determination being in place.[81]
Similarly, Professor Rubenstein observes that:
It is important to recognize that section 35 and its
predecessor has never been relied upon by the Executive to determine someone
has lost their citizenship, and indeed, the Department’s view has been that the
section has never operated because Australia has not been formally ‘at war’.[82]
Further, given the existing provision has not been used,
and therefore no need or opportunity has existed for it to be challenged or
tested for constitutionality:
... it is unclear whether section 35 as it currently stands is
in itself constitutional, let alone whether this amendment would also survive a
constitutional challenge.[83]
Fighting for, or being in the
service of, a declared terrorist organisation
Item 4 also inserts proposed subparagraph 35(1)(b)(ii))
which will expand the basis for the cessation of the Australian citizenship of dual
nationals to those who fight for, or are in the service of, a ‘declared
terrorist organisation’. Under the proposed provision, the service or fighting
must occur outside Australia (proposed paragraph 35(1)(c)).
Proposed
subsection 35(4) will provide that a ‘declared terrorist
organisation’ is any terrorist organisation within the meaning of paragraph (b)
of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code that the
Minister declares to be such for the purposes of the proposed section. Paragraph 102.1(1)(b)
of the Criminal Code allows organisations to be proscribed as terrorist
organisations by regulation if the Attorney-General is satisfied of certain
matters.[84]
Issue: Basis on which organisations
are declared
The Explanatory Memorandum states that it is intended that
the Minister rely on the list of terrorist organisations in section 102.1 of
the Criminal Code
in declaring a terrorist organisation for the purposes of proposed section
35, because ‘fighting for, or being in the service of, a terrorist
organisation in this list demonstrates a repudiation of allegiance to
Australia’.[85]
Further:
The amendment reflects the policy intention that only
terrorist organisations that are opposed to Australia or are opposed to any of
Australia’s values, democratic beliefs, rights or liberties [would be declared
for the purposes of proposed section 35]. [86]
However, no guidance is provided in proposed
subsection 35(4) itself as to the additional criteria that must be met
to justify the declaration of a terrorist organisation for the purposes of
citizenship cessation. The LCA considers:
Criteria for declaring a terrorist organisation should be
provided in legislation and require that the organisation conducts itself in a
manner prejudicial to Australia’s security or commits war crimes or crimes
against humanity.[87]
The Scrutiny of Bills Committee queried the basis on which
it is considered appropriate ‘to make [loss of citizenship] reliant upon a
ministerial declaration that is not subject to disallowance by the Parliament’.[88]
The proscription of organisations as terrorist organisations under the Criminal
Code is by regulation. It is not clear why proscription for the purposes of
citizenship cessation is not proposed to be by that same process.
Issue: Breadth of conduct captured
The Explanatory Memorandum states that the terms ‘fight’ and
‘in the service of’ should be given their ordinary dictionary meaning and, in
elaboration of the phrase ‘in the service of’, that:
A person may act in the service of a declared terrorist
organisation if they undertake activities such as providing medical support,
recruiting persons to join declared terrorist organisations, providing money or
goods, services and supplies to a declared terrorist organisation.[89]
Having regard to this statement, Australian Lawyers for
Human Rights notes that while the Bill ‘purports to relate to “persons engaging
in terrorism and who are a serious threat to Australia and Australia’s
interest” ... [it] potentially covers even medical assistance by organisations
such as Médecins sans Frontières or the Red Cross’.[90]
Similarly, UNICEF Australia notes that:
... as part of UNICEF's work globally there are times when we
have to educate armed groups in relation to child protection as part of their
being released—actually outlining international law to members of armed groups
and explaining the serious consequences for children. Would I then qualify as
being ‘in the service’, even though I am firmly in the service of UNICEF
globally and in the service of children?[91]
A similar concern with the breadth of the expression ‘is
in the service of’ was raised by the Scrutiny of Bills Committee, while the
Australian Human Rights Commission submits that a definition of the words ‘in
the service of’ should be included in the proposed legislation.[92]
In its response to questioning during the PJCIS inquiry
into the Bill, the Department advised, amongst other things, that ‘[a] person who is unwittingly or unknowingly aiding and providing assistance to
a terrorist organisation will not be acting ‘in the service of’ a terrorist
organisation’.[93]
Other issues
Like proposed section 33A, proposed
section 35 will operate automatically and on the basis of specified
conduct rather than a criminal conviction. While the scope of conduct to which
proposed section 35 will apply is narrower, the issues raised above in
relation to proposed section 33A, such as the absence of criminal law
protections that would apply to prosecution for the same conduct and the
provision’s application to children, are also relevant to proposed
section 35.
Cessation upon conviction of terrorism
and certain other offences
Item
5 inserts proposed
section 35A, which will provide that a person ceases
to be an Australian citizen where they are convicted of a specified terrorist
offence, or other specified offence (proposed
subsection 35A(1)). Under proposed subsection 35A(2), a person
would cease to be an Australian citizen at the time of their conviction.
Proposed
subsection 35A(3) specifies the offences for the purposes of
proposed subsection 35A(1), namely those concerning:
- international
terrorist activities using explosive or lethal devices
- treason,
espionage, urging violence, or advocating terrorism
- terrorism,
in particular terrorist acts, terrorist organisations (other than associating
with terrorist organisations) and terrorism and terrorist financing
- foreign
incursions and recruitment and
- treachery,
sabotage, inciting mutiny, assisting prisoners of war to escape, conducting
unlawful drills or military exercises, or destroying or damaging Commonwealth
property.
This provision will apply to a broader range of conduct than
proposed sections 33AA and 35. The Explanatory Memorandum states that this is
appropriate as the proposed section will only apply upon conviction.[94]
This distinction is reflected in the fact that a number of the offences under proposed
subsection 35A(3) would, if established, result in a maximum penalty of
imprisonment for five years.[95]
By way of comparison, the lowest maximum penalty that would apply to conduct
captured by proposed section 33AA if prosecuted as an offence would be
imprisonment for 15 years.[96]
Issues: Range of offences and
automatic application
The breadth of the circumstances in which a person may cease
to be an Australian citizen under the Bill is pertinent to its
constitutionality, and to its encompassment by the ‘aliens power’ provided for
in section 51(xix) of the Constitution.
The proposed provision has been widely criticised on the ground that the
breadth of the offences it includes go well beyond what Professor Twomey
describes as ‘the traditional notion of terrorism’, and is therefore
disproportionate to the Bill’s purpose.[97]
A separate but related issue, because it is most relevant to non-terrorism
offences, is the fact that, like proposed sections 33A and 35, proposed
section 35A will operate automatically. This means that a person would
lose their citizenship on conviction for a specified offence, regardless of the
particular circumstances of the case.
The Centre for Comparative Constitutional Studies comments
in its submission to the PJCIS that:
The breadth of offences listed
in s 35A also means that the Act goes beyond
what might be considered ‘proportionate to... ensuring the security of the Australian community’. As Nystrom makes
clear, there are ‘few, if any, circumstances in which deprivation of the right to enter
one’s own country could be reasonable’ (emphasis in original).[98]
A similar point is raised by the Senate Standing Committee
for the Scrutiny of Bills:
Given the automatic operation of this cessation provision,
there is a significant possibility that the application of the law will not be
proportionate to the circumstances of particular cases. The automatic operation
of the provisions means there is no discretionary judgment exercised prior to
the time that cessation of citizenship takes effect.[99]
Particular criticism is directed by many stakeholders at
the inclusion in proposed paragraph 35A(3)(e) of the offence of
destroying or damaging Commonwealth property under section 29 of the Crimes Act 1914.[100]
On this issue, the LCA observed:
That offence is committed if a person intentionally damages
property whether real or personal and it is a circumstance that the property
happens to be Commonwealth property. This offence can apply even if the person
does not know that the property belongs to the Commonwealth or a Commonwealth
authority. In such circumstances, it is not appropriate, to equate all conduct
of that kind to the cessation of citizenship. For example, it may also
potentially capture graffiti on a public building.[101]
Concerns have also been expressed at the inclusion of offences
relating to urging violence, advocating terrorism, entering or remaining in a
‘declared area’ and other foreign incursions in a provision that operates
automatically upon conviction.[102]
The LCA suggests as a possible solution for proposed
section 35A (and also, proposed sections 33AA and 35):
If the self-executing provisions for citizenship cessation
remain in the Bill, they should be amended to require that the person has
engaged in the specified conduct in a manner which demonstrates a specific lack
of allegiance to Australia, including by demonstrating a repudiation of
Australian values by committing war crimes or crimes against humanity, or the
conduct is prejudicial to Australia’s security.[103]
Provisions common to all grounds
for cessation
Items
3, 4 and 5 insert subsections in proposed sections 33AA, 35 and
35A that are common to all three provisions. Items 6 and 7
also insert provisions that apply to loss of citizenship under all three proposed
sections. This section provides an overview of all of these provisions first,
then sets out related issues and concerns.
Minister to give notice
When the Minister ‘becomes aware’ of the relevant conduct or
conviction, the Minister must give written notice to that effect at such
time and to such persons as the Minister considers appropriate (proposed
subsections 33AA(6), 35(5) and 35A(5)).
Minister’s power to rescind notice
and exempt person
Proposed subsections 33AA(7), 35(6) and 35A(6) will
provide that where the Minister has given a notice under proposed section 33AA,
35 or 35A, he or she may personally rescind the notice and exempt the person
from the operation of the new cessation provision in circumstances in which the
Minister considers it to be in the public interest to do so.
The Explanatory Memorandum states that these provisions
are ‘aimed to ensure that the public interest is taken into consideration when
a decision to excuse a person’ from the operation of proposed section 33AA, 35
or 35A is taken.[104]
The Explanatory Memorandum suggests further that:
Public interest consideration in this statutory scheme may
include matters such as public confidence in the safety of the Australian
community, actual public safety, the extremely serious nature of the conduct,
the need for deterrence, the impact on the person, national security and international
relations. It may also include matters relating to minors, including the best
interests of the child, any impact that cessation may have on the child and
Australia’s obligations to children ...[105]
Despite this elaboration of the matters which may be taken
into account by the Minister, the proposed provisions do not themselves contain
any reference to, or guidance on, what might constitute ‘public interest’
considerations.[106]
Irrespective of whether he or she is requested to do so by
the person (or any other person on his/her behalf), the Minister does not have
a duty to consider whether to exercise the power to rescind and exempt a person
(proposed subsections 33AA(8), 35(7) amd 35A(7)).
General provisions relating to the
Minister’s powers
The remaining provisions common to proposed
sections 33AA, 35 and 35A concern how the Minister exercises the
duties and powers imposed, and apply to both the giving of notice and the
powers to rescind a notice and exempt a person. They provide that:
- the
powers must be exercised by the Minister personally (proposed subsections
33AA(9), 35(8) and 35A(8))
- the
rules of natural justice do not apply (proposed subsections 33AA(10), 35(10)
and 35A(9)). As a result, the Minister would not be required to give reasons
for his or her decision or provide the person with an opportunity to be heard
- the
Minister is not required to give notification of the decision under section 47
of the Citizenship Act (proposed subsections 33AA (10), 35(9)and 35A(9))[107]
- an
instrument exercising any of the Minister’s powers under the proposed
provisions is not a legislative instrument (proposed subsections 33AA(11), 35(10) and 35A(10))
and
- section
39 of the Australian Security Intelligence Organisation Act 1979 (ASIO
Act) does not apply in relation to those proposed sections (proposed
subsection 33AA(12), 35(11) and 35A(11)). That section of the ASIO Act
prohibits Commonwealth agencies from taking administrative actions (other than
certain actions of a temporary nature) on the basis of communications from ASIO
other than formal security assessments provided for under Part IV of that
Act.[108]
Providing that section 39 of the Act does not apply allows the Minister to
act on information and intelligence from ASIO that does not amount to a security
assessment. It may also operate to further limit review rights, given security
assessments under Part IV of the ASIO Act attract rights of notice
and merits review.[109]
Power to revoke the citizenship of
dependent children
Section 36 of the Citizenship Act provides the
Minister power to revoke the citizenship of a child of a person who ceases to
be an Australian citizen under existing provisions of the Act.
Item 6 will amend section 36 to enable the Minister
(in certain circumstances and subject to certain exceptions relating to
statelessness, as apply to existing provisions) to revoke the citizenship of
children of a responsible parent who ceases to be a citizen as a result of the
operation of proposed section 33AA, 35 or 35A. The Explanatory
Memorandum indicates that operation of this provision would be ‘subject to the
Minister’s powers to exempt the operation of sections 33AA, 35, and 35A’.[110]
The Federation of Ethnic Community Councils of Australia was
among those critical of this provision:
Given the lack of safeguards in the Bill, particularly the
ambiguity as to the process through which the Minister will ‘become aware of
conduct’ satisfying the relevant provisions, FECCA opposes the Minister’s power
to revoke a child’s citizenship under s 36 of the Citizenship Act on the
basis that their parents’ citizenship has ceased/been revoked.[111]
No resumption of citizenship
Item 7 will insert proposed section 36A,
which will prohibit all persons who are stripped of their Australian
citizenship under any of the new cessation mechanisms in proposed sections
33AA, 35 or 35A from acquiring Australian citizenship again.
In its report, the PJCHR expresses concern at the severity of
this provision, noting that the proposed finality of the proposed cessation
provisions ‘underlies the extraordinary nature of the provisions, particularly
as many of the offences for which citizenship may be lost carry a maximum
prison term of not more than 5 years under the Criminal Code’.[112]
Issue: Exclusion of the rules of
natural justice and usual notice provisions
The exclusion of the rules of natural justice has
attracted significant criticism from stakeholders, who argue that a person
facing a consequence as serious as loss of citizenship should be afforded the
safeguards associated with natural justice, including an opportunity to be
heard.[113]
Ms Chordia, Ms Pillai and Professor Williams stated:
... the rules of natural justice are excluded for all the
exercises of ministerial power in the Bill. These rules routinely apply to
other exercises of ministerial power that have a similarly onerous impact on
the person affected, including decisions to deport non-citizens on the basis of
national security or engagement in criminal conduct under Division 9 of the Migration
Act. Accordingly, the express and implied exclusion of natural justice in
the Bill is unwarranted and disproportionate.[114]
They further argue:
... there is no compelling justification for the Bill’s
exclusion of s 47 of the Australian Citizenship Act, which
requires the Minister to provide a person with notice of any decision reached
in relation to the person, and with reasons where the decision is adverse in
nature. The Bill, if passed, would create a system in which a person could
automatically lose their citizenship, and be subjected to the consequences of
this loss, without having any access to information about the basis upon which
their citizenship was lost, or even the fact that it was lost at all.[115]
The Scrutiny of Bills Committee was also critical of this
aspect of the Bill.[116]
Issue: No duty to consider a
request to rescind a notice of citizenship cessation
The Human Rights Law Centre is among those critical of the
framing of the proposed power of rescission, given that it is not compellable
and entirely at the discretion of the Minister. Moreover, the fact that the
Minister does not have to comply with the rules of natural justice ‘creates
serious risks of decisions that are arbitrary, inconsistent, political and
subjective - and that rely on irrelevant or incorrect information’.[117]
The Scrutiny of Bills Committee
suggests that:
... it may be considered that the ‘no duty to consider’
provisions attached to the exemption power are unfair given that the cessation
of citizenship occurs automatically and the result therefore is that the
Minister’s decision as to whether the operation of the exemption provision is
appropriate is not subject to any meaningful judicial review.[118]
Issue: Use of intelligence
information
The exclusion of section 39 of the ASIO Act,
thereby allowing the Minister to act on intelligence provided outside the
context of a security assessment and the procedural safeguards that entails,
attracted substantial criticism.
Professor Ben Saul submits that the Minister’s decision may
thereby ‘be based on partial, incomplete and untested intelligence, which may
be unreliable, highly prejudicial to the person, and unable to be challenged by
the person, all magnifying the chance of error’.[119]
The Federation of Ethnic Communities’ Councils of
Australia was also critical, observing that the exclusion of section 39 of
the ASIO Act would:
... potentially allow the Minister and/or relevant public servants
to use intelligence which does not amount to a security assessment to issue
notice that an Australian citizenship has ceased. Cessation or revocation of
citizenship is a serious consequence which should not be based on intelligence
that is ordinarily only used for actions of a temporary nature.[120]
Ms Chordia, Ms Pillai and Professor Williams commented:
Given that s 39 of the ASIO Act and the rules of
natural justice apply to noncitizens who are subject to deportation orders
under Division 9 of the Migration Act, there is no reason to deny these
protections to citizens who are subject to citizenship revocation and
consequent detention or deportation.[121]
The Australian Human Rights Commission also notes that the
effect of excluding section 39 would be that the person would not be able to
have ASIO’s opinion reviewed by the Commonwealth Administrative Appeals
Tribunal.[122]
In commenting on the exclusion of the application of
section 39 of the ASIO Act,
the PJCHR noted that:
[T]he effect of the Bill is that a Commonwealth agency can
act on preliminary ASIO information that is less certain than a security
assessment when determining whether someone is an Australian citizen or whether
in fact they have lost that citizenship on conduct outlined by ASIO. [123]
A further issue arises were an affected person to seek
judicial review of a decision made as a result of the cessation or renunciation
of citizenship. As is discussed in more detail below (see Judicial and
administrative review) a person may seek ‘declaratory relief as to whether the
conditions giving rise the cessation have been met’. However, such review may
be limited by the operation of the National
Security Information (Criminal and Civil Proceedings) Act 2004,
pursuant to which the Attorney-General may issue a non-disclosure certificate.
Receipt of certificate triggers a requirement for the court to hold a closed
hearing at which parties may also be excluded where the court considers that
the disclosure would be likely to prejudice national security.[124]
Similarly, it is also open to the government to seek to
have evidence excluded from evidence on the grounds of public interest immunity
(PII). The Department that these claims:
... are most commonly made by the Government in relation to
national security and the activities of Australian Security and Intelligence
Organisation (ASIO) officers, police informers and other types of informers or
covert operatives.
Where a claim of PII is made in relation to the disclosure of
sensitive information, the court will be expected to give great weight to that
claim; however it will need to reach its own conclusions. It is therefore not
absolute that in every case, the information will be protected.[125]
Application provisions
Item 8 is an application provision that sets out
how the new cessation mechanisms in the Bill will apply. It provides that the
three new cessation mechanisms will apply to all Australian citizens
irrespective of when they became an Australian citizen (that is, before, on, or
after commencement date).
In relation to cessation under proposed section 33AA,
the provision will only apply to conduct that was engaged in on or after
commencement, irrespective of when the conduct commenced.
In relation to cessation under proposed section 35,
the provision will only apply in relation to fighting for, or being in the service
of, a declared terrorist organisation that occurs on or after commencement,
irrespective of when the conduct commenced.
In relation to cessation under proposed section 35A,
the provision will only apply to convictions that occur after
commencement, irrespective of when the conduct constituting the offence
occurred.
Retrospectivity
As noted earlier in this Digest, the PJCIS was asked to
consider whether proposed section 35A should be amended to apply
retrospectively to convictions that occurred before commencement. Submitters to
the PJCIS inquiry into the Bill who commented on the issue do not consider that
proposed 35A should have retrospective operation. For example, the LCA considers:
While it is within the power of the Parliament to enact retrospective
laws, holding a person responsible for automatic citizenship cessation for
doing what did not amount to cessation at the time that s/he did it,
contravenes fundamental notions of justice, fairness and the rule of law. The
gravity of retroactive removal of a person’s citizenship is a substantive
alteration of a person’s legal rights and obligations which is fundamentally
unjust.[126]
Assistant Professor Bruce Baer Arnold comments in his
submission to the PJCIS that:
Retrospective application of the proposed 2015 law is legally
repugnant and has not been justified on the basis that Australia faces a
substantive existential threat and can only address terrorist
activity/affiliations on an extraordinary basis, i.e. through retrospectivity.[127]
The LCA also considers that the Bill ‘already has partial
retrospective application’ in that:
Section 35 is proposed to apply where the fighting or service
commenced before the commencement of the Act, but the person will cease to be
an Australian citizen at the time the Act commences. Similarly, the application
of section 35A applies to convictions that occur after the commencement of the
Act, whether the conduct constituting the offence occurred before, on or after
that commencement.[128]
Broader issues relating to the Bill
This section of the Digest outlines broader issues in
relation to the Bill and the general proposal to expand the grounds on which
Australian citizenship may be lost. Policy issues are set out first, followed
by those relating to the drafting of the Bill as a whole.
Do the benefits of additional
citizenship cessation powers outweigh the costs?
Revoking a person’s citizenship (or, as is proposed in the
Bill, providing it ceases or is renounced) might in some circumstances benefit
national security. However, it might also undermine national security, by
leading to perverse outcomes and missed opportunities. It has been argued such
measures:
- could
exacerbate national security and terrorism threats in the longer term by
contributing to the development of a pool of ‘professional international
jihadists’[129]
- might
mean Australia loses opportunities to integrate the voices and stories of
disillusioned fighters into more effective counter-narratives to support
efforts to counter violent extremism, and to benefit from information they
could provide our intelligence and security agencies
- risk
increasing social disaffection and potentially adding to the allure of
organisations such as ISIL
- go
against Australia’s counter-terrorism related international obligations and
undermine the international framework for cooperation on such matters and
- shift
the risks associated with Australian foreign fighters onto other countries that
may be less capable of dealing with the individuals in question.[130]
Could the threats the Bill aims to
address be dealt with by other means?
Australia already has quite comprehensive legal and
operational measures in place to deal with terrorism, with an already strong
framework reinforced through reforms passed last year.[131]
The Government has also stated that further measures will be introduced later
this year.[132]
One of the main security-related arguments advanced by the
Prime Minister for introducing the measures in the Bill is the difficulty
involved in obtaining sufficient admissible evidence to prosecute individuals
for conduct they allegedly engaged in overseas. He has stated: ‘putting
Australian foreign fighters in gaol is easier said than done ... Bringing foreign
fighters back to face trial in Australia risks leaving them free on our streets
rather than in our gaols’.[133]
Several existing powers are particularly relevant in this context: reforms
effective from 1 December 2014 that removed the requirement for
‘terrorism-related proceedings’ to comply with the usual rules that apply to
foreign evidence; the control order regime, which was significantly expanded in
2014; and passport refusal, cancellation and suspension powers.[134]
Practical consequences: potential
statelessness, refoulement and prolonged or indefinite detention
In confining the operation of the Bill’s cessation
provisions to dual citizens, the Bill seeks to ensure that a person who loses
their Australian citizenship by operation of law will not be rendered
stateless. However, the statement in the Explanatory Memorandum that the Bill
‘will not result in a person becoming stateless’ has been challenged by a
number of stakeholders. [135]
In its submission to the
PJCIS inquiry, the LCA states:
While international law dictates that everyone has the right
to a nationality and that no one shall be arbitrarily deprived of his
nationality, there is no guarantee that a dual national’s/citizen’s other
country of nationality will not revoke their citizenship and/or refuse to
accept them (because of suspected terrorist involvement), effectively rendering
that person stateless...[136]
A similar point is made by the Islamic Council of
Queensland, which submits that dual citizens ‘are unlikely to regain
citizenship in their second country in the instance that they lose their
Australian citizenship’, and that they are therefore ‘at risk of being in the
same situation as a sole national who may lose their citizenship’.[137]
A number of stakeholders also raise the possibility that a
person may end up in indefinite detention in Australia in cases where they
cannot be returned, pursuant to international law, to a country where they may
be subject to torture or the death penalty.[138]
The Commonwealth Ombudsman observes further in this regard:
An individual physically located in Australia
who loses their Australian citizenship would be entitled to an ex-citizen visa under s35 of the Migration Act 1958. It is reasonable
to expect however, that a person who loses their Australian
citizenship because of terrorist related activities would be liable to have their visa cancelled under the character
provisions of the Migration Act. If that were the case, the Migration
Act would require that person
be placed in immigration detention pending voluntary
departure or removal
to the person's other country of citizenship. If the individual or the other country fail to cooperate
with efforts to arrange
appropriate travel documentation and removal, it is highly likely the individual will spend an extended (and possibly indefinite) period in immigration detention in Australia.[139]
Issues around indefinite detention also need to be
considered in light of the application of the Bill to children, both directly
under proposed sections 33AA and 35 and under item 6,
which will amend 36 of the Citizenship Act (that section allows the
Minister to revoke the citizenship of dependent children of parents who lose
their Australian citizenship).
Stakeholders have also pointed out that people may be dual
nationals without even knowing it, a circumstance recognised on the
Government’s Smart Traveller website.[140]
This raises the possibility of people being returned to a country in which they
have no community ties and may not even speak the local language.
Past instances of Australia
deporting permanent residents on the basis of criminal convictions are
pertinent in the context of some of the issues raised above.
- Stefan
Nystrom, who was born in Sweden and lived in Australia from 27 days old, had
his visa cancelled and was deported to Sweden in 2006 on the basis of his
extensive criminal record. He reportedly ended up homeless in Sweden on the
basis of the language barrier (he did not speak Swedish) and his criminal
history and mental illness. The then Australian Government chose not to act on
a 2011 United Nations Human Rights Committee ruling that Australia had an
obligation to allow Mr Nystrom to return.[141]
- Robert
Jovicic was born in France to Serbian parents and lived in Australia from
two years old. His visa was cancelled and he was deported to Serbia in
2004 on the basis of his extensive criminal record. Like Mr Nystrom,
Mr Jovicic did not speak the language in the country to which he was
deported. He was also not recognised by Serbia as a national, leaving him
stateless. He ended up unemployed and living on the street, suffering from very
poor health. The then Australian Government allowed Mr Jovicic to return
to Australia in 2006 on compassionate grounds.[142]
Two classes of Australian citizen
As noted above, the new citizenship cessation provisions
would be limited to dual nationals so as to comply with international
obligations concerning statelessness. While recognising that this is the case,
a number of stakeholders have indicated concern that this will create a
two-tiered system of Australian citizenship. For example, Professor Irving
observes:
The fact that the provisions of the Bill apply only to dual
nationals also has the potential to create a ‘two-class’ system of law in
Australia, since the consequences of prescribed conduct for dual nationals are
different from the consequences of the same conduct performed by sole
nationals.[143]
The Councils for Civil Liberties note that:
The Bill is discriminatory because it would treat dual
citizens and nationals differently to persons with sole Australian citizenship.
It creates a perverse incentive for persons to renounce citizenship or
nationality of other counties [sic] in order to avoid the operation of the Act.[144]
The Government’s formal announcement of its intention to
‘update’ the Citizenship Act in response to the threat of terrorism
indicated that:
These new powers are a necessary and appropriate response to
the terrorist threat. They modernise our laws and bring them closer to those of
the UK, Canada, France, the United States and other countries.[145]
That the Bill would bring Australia into line with
comparable jurisdictions has been disputed in submissions and evidence to the
PJCIS inquiry and elsewhere.[146]
In her evidence before the PJCIS inquiry into the Bill, Ms
Pillai suggested that the Bill ‘as it is currently drafted does not bring
Australian legislation in line with any of these countries’ [UK, Canada, US and
France].[147]
Ms Pillai’s joint submission with Ms Chordia and Professor Williams states the
Bill is ‘exceptional in scope’.[148]
The Centre for Comparative Constitutional Studies considers that when compared with
citizenship deprivation schemes in operation
in other common law jurisdictions, the scheme provided for in the Bill ‘is undoubtedly “extreme” and lacks some of the safeguards that feature in other countries’.[149]
The Australian Human Rights Commission notes that it has
not examined all jurisdictions, but identifies some specific ways in which the
Bill goes further than four comparable countries:
The United States provides for renunciation of citizenship;
however, it is necessary that a person intend to renounce their
citizenship.
The United Kingdom allows for the revocation of citizenship
on public interest grounds. However, loss of citizenship is not automatic. It
requires a decision to be made by the Secretary of State, and avenues of appeal
are provided.
Canada allows for revocation of citizenship for persons
convicted of certain offences. However, account is taken of the severity of the
offending. Affected persons are informed of the grounds of the decision and
allowed make submissions. Avenues of appeal are available.
New Zealand does not have any equivalent loss of citizenship
provisions.[150]
The Department’s own overview of those countries’ laws does
not identify any equivalent to proposed section 33AA.[151]
Constitutionality of the Bill
The Explanatory Memorandum states that the ‘principal
source of power’ underpinning the provision in the Bill for the cessation of
Australian citizenship arises from the power with respect to aliens provided
for in section 51(xix) of the Constitution’.[152]
The Explanatory Memorandum also states, with reference to
two High Court cases in which mention is made of ‘allegiance’ in the context of
the ‘aliens power’, that ‘[t]he concept of “allegiance” is central to the
constitutional term “alien”’. [153] Further, it asserts
that ‘[a] citizen’s duty of allegiance is not created by the Citizenship Act
but is rather recognised by it’.[154]
Responding to these statements, the Centre for Comparative
Constitutional Studies says in its submission to the PJCIS inquiry into the
Bill that:
The High Court has repeatedly emphasised that the definition
of ‘aliens’ for the purposes of s 5l(xix) is not ‘at large’.[155]
The Centre comments that while, if ‘read in isolation’,
some of the statements by individual High Court judges ‘might be thought to
suggest that the Parliament has unlimited power to legislate the grounds on
which a person can be said to have renounced their allegiance to Australia ...
statements of this kind do not provide a precedent for the privation of
nationality if the context is significantly different’.[156] In this regard:
This Bill extends well beyond any other legislation based on section
51(xix)) that has previously been considered by the High Court. Its
constitutional validity should not be regarded as assured in these
circumstances.[157]
Concern at the possible unconstitutionality of the Bill is
also shared by Professor Irving, who considers proposed section 33AA in
particular, ‘highly troubling from a constitutional law perspective’ and
‘impossible to apply in its own terms (that is, making reference to the
offences in the Commonwealth Code), without a judicial determination of
criminal guilt’.[158]
It is also shared by Professor Rubenstein, who states:
All these amendments give rise to serious questions about the
limits on the Executive and the Parliament to take away a person’s citizenship.
The Constitutional power to make laws regarding citizenship is drawn from
various sections under section 51 of the Constitution and the breadth of these
section may be in issue with these amendments. Moreover, there are also
constitutional restrictions on how governments make laws within those
parameters. Both aspects will give rise to issues that a High Court will need to
grapple with if the proposed legislation is passed.[159]
Can a law really be
‘self-executing?’
A number of submitters to the PJCIS inquiry into the Bill query
whether the proposed provisions are in fact ‘self-executing’.
The Commonwealth Ombudsman considers (emphasis added):
The legal fiction that the cessation of citizenship occurs
by operation of the statute conceals administrative decision making that must
logically occur for the Bill to operate.
While it may be true on the scheme of the Bill that the Minister
does not decide whether a person has engaged in the relevant conduct, there must
be a decision by someone to that effect. That is, in order for the Minister to 'become
aware' that a person has engaged in particular conduct or been subject to a relevant
conviction someone, presumably an official, must form the view that the relevant
conduct has been engaged in or a relevant conviction recorded.
It is not clear on the face of the Bill, but it is reasonable
to assume, that the source of advice to the Minister to enable him or her to 'become
aware' of conduct will be his or her department, law enforcement and intelligence
agencies.
For an official to come to a view that a person has been convicted
of a particular offence is relatively straight forward and capable of external verification.
However, to come to a view that a person has engaged in a particular activity will
require an official to make assessments of facts and law.[160]
Dr Thwaites makes a similar point (emphasis in original):
The theory of the self-executing
statute the statute and explanatory memorandum rely upon has been subjected
to significant criticism
in the Australian courts.
The essence of this criticism is the common-sense observation that “No law is entirely
self-executing; it needs the
interposition of human judgment”. As a matter of practical reality, somebody needs to reach a determination that the conduct
triggering revocation of citizenship
has occurred.[161]
Similar points were made in evidence to the PJCIS from
Professor Williams, Professor Irving and the Councils of Civil Liberties. [162]
The Scrutiny of Bills Committee also commented on this
issue, focusing particularly on the lack of transparency inherent in the
automatic decision-making process:
...the practical reality is that an internal administrative
process will necessarily precede the government treating a person as having
lost his or her citizenship. ... The ‘automatic’ operation of the provisions has
the result that an affected person is not afforded a hearing as part of that
administrative process ... The result is an affected person is not entitled (at
this point) to contest judgements about whether the cessation of citizenship
provisions are triggered. Once a government official has reached a conclusion
that citizenship has ceased under these provisions, then further decisions
might be made which are premised on a person no longer being a citizen (for
example, refusal of a passport application, cancellation of visa, and,
ultimately, a deportation order).[163]
Submitters on the Bill consider these concerns to be supported
by information provided to the PJCIS by the Department on how the amendments
will operate in practice. Notably, the submission explains that:
Operationalising the Act will involve identifying dual
nationals to whom one (or more) of the provisions relating to automatic loss of
citizenship apply. This will require close cooperation across government. The
Department, including the Australian Border Force, will work closely with
relevant departments and agencies, including law enforcement and intelligence
agencies, to put in place the appropriate steps and processes to support the new
provisions.
Where available and suitable, existing whole of government
intelligence and law enforcement coordination mechanisms will be utilised. In
addition, deputy secretaries from relevant departments and agencies and [sic]
will provide information to the Secretary of the Department of Immigration and
Border Protection both on cases and other matters, such as the identification
of relevant terrorist organisations for the purposes of the Act. The Secretary
will bring cases to the attention of the Minister.[164]
A related concern, raised by the Australian Bar
Association is that:
The new ss.33AA and 35 make no provision for any means of
fact-finding or standard of satisfaction creating legal uncertainty for
government agencies acting upon the loss of citizenship, irrespective of
whether the Minister has provided notice of this, including ASIO, the
Department of Immigration and Border Protection and the Australian Electoral
Commission.[165]
Judicial and administrative review
The Explanatory Memorandum states that ‘[t]he amendments
in the Bill do not limit the application of judicial review’.[166]
However a number of submitters to the PJCIS inquiry do not consider that this
would be the case.
The Centre for Comparative Constitutional Studies observes
that this statement:
... is formally correct; indeed, it would be impossible to
exclude judicial review given the requirements of the Constitution ... [i]n
practice, however, the opportunities for review are severely limited by the
Bill, dramatically reducing the capacity of the courts to mitigate any untoward
effects of the legislation.[167]
A similar conclusion is reached by the Australian Councils
for Civil Liberties:
... proposed s.33AA and s.35 of the Act create a presumption
that all persons engaged in certain categories of conduct have renounced their
citizenship, with the Minister then having a non-compellable discretionary
power to exempt a person from the operation of the Act. That merely shifts the
discretion from the front end to the back end of the process – it still sees
the key decision that affects the person’s interests being made in the exercise
of the Minister’s discretion. Judicial review of such power is notoriously
difficult. It is fundamental that there be recourse to independent merits
review of such decisions and that the rules of natural justice apply.[168]
With reference to the claim in the statement of
compatibility that ‘a person also has a right to declaratory relief as to
whether the conditions giving rise to the cessation have been met’,[169]
the PJCHR also considers that ‘there is considerable uncertainty as to how an
application for declaratory relief in relation to the automatic loss of
citizenship would operate in practice’.[170]
As well as receiving written notice of the Minister’s
decision, applicants for the renunciation of their Australian citizenship, or
those who have had their citizenship revoked by the Minister, are currently
entitled to seek review of the decision by the Administrative Appeals Tribunal.[171]
Advice from the Department to the PJCIS inquiry explains
the absence of this review right from the Bill as follows:
In common with similar provisions in portfolio legislation
giving the Minister a personal and non-compellable power, exercisable in the
public interest, to exempt persons from the operation of various requirements,
it is not considered appropriate to make the exercise of the ‘rescinding’ power
subject to merits review.[172]
Significant concerns with the Bill have been raised by
peak professional legal bodies, leading constitutional lawyers, human rights proponents,
community representative bodies and Parliamentary scrutiny committees. The
concerns raised include policy issues around the desirability of addressing
national security concerns through citizenship law and the practical
consequences flowing from that approach, questions about the constitutionality
of the Bill and whether self-executing provisions are in fact a ‘legal
fiction’, and more specific issues concerning the scope of conduct captured by
the provisions and the processes by which a person may lose their citizenship.
Against this background, a careful assessment would seem to
be warranted before the Bill proceeds further.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Australian Citizenship
Act 2007 (Citizenship Act), sections 33,
34, 34A and 35, accessed 29 August 2015.
[2]. Ibid.,
section 36.
[3]. Australian
National Audit Office (ANAO), Verifying
identity in the Citizenship Program: Department of Immigration and Border
Protection, Audit report, 47, 2014–15, ANAO, Barton, ACT, 2015,
accessed 29 August 2015.
[4]. T Abbott
(Prime Minister), P Dutton (Minister for Immigration and Border Protection)
and G Brandis (Attorney-General), Transcript of joint
press conference, Parliament House, Canberra, media release,
23 June 2015, accessed 29 August 2015. See further E
Karlsen, ‘Cancellation
of Australian citizenship built on shaky foundations?’, FlagPost,
Parliamentary Library blog, 21 July 2015, accessed 4 August 2015.
[5]. Professor
K Rubenstein, Submission
to Parliamentary Joint Committee on Intelligence and Security, Inquiry into
the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015,
p. 3, accessed 29 July 2015.
[6]. C Barker,
Citizenship
revocation on national security grounds: context and selected issues,
Research paper series, 2015–16, Parliamentary Library, Canberra, 3 August 2015,
pp. 3–8, accessed 4 August 2015.
[7]. For
brief overviews, see ABC, ‘Fact
check: how does Australia’s plan to strip foreign fighters of citizenship
compare to other nations?’, ABC News, updated 11 June 2015
and S Pillai, ‘Proposals
to strip citizenship take Australia a step further than most’, The
Conversation, 29 May 2015; both accessed 15 July 2015.
[8]. Explanatory
Memorandum, Australian Citizenship Amendment (Allegiance to Australia) Bill
2015, p. 1, accessed 28 July 2015.
[9]. P
Dutton (Minister for Immigration and Border Protection), ‘Second
reading speech: Australian Citizenship Amendment (Allegiance to Australia) Bill
2015’, House of Representatives, Debates, 24 June 2015, pp. 7369–72,
accessed 29 August 2015; Explanatory Memorandum, op. cit., p. 1.
[10]. Statement
of Compatibility with Human Rights, Explanatory Memorandum, op. cit, p.
28.
[11]. C Barker,
Citizenship revocation on national security grounds: context and selected
issues, op. cit., pp. 8–11.
[12]. M Biddington
and C Barker, National
Security Legislation Amendment Bill (No. 1) 2014, Bills digest,
19, 2014–15, Parliamentary Library, Canberra, 2014; C Barker,
M Biddington, M Coombs and M Klapdor, Counter-Terrorism
Legislation Amendment (Foreign Fighters) Bill 2014, Bills digest, 34,
2014–15, Parliamentary Library, Canberra, 2014; C Barker, Counter-Terrorism
Legislation Amendment Bill (No. 1) 2014, Bills digest, 50,
2014–15, Parliamentary Library, Canberra, 2014; J Murphy and
M Biddington, Telecommunications
(Interception and Access) Amendment (Data Retention) Bill 2014, Bills
digest, 89, 2014–15, Parliamentary Library, Canberra, 2015, all accessed
13 July 2015.
[13]. Barker
et al, op. cit.; Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014, accessed
31 August 2015.
[14]. A
short outline of the origins and subsequent history of section 35 of the Citizenship
Act is provided by E Karlsen, ‘Cancellation of Australian citizenship built
on shaky foundations?’, op. cit.
[15]. T
Abbott (Prime Minister) and P Dutton (Minister for Immigration and Border
Protection), New
measures to strengthen Australian citizenship, media release, 26 May
2015, accessed 4 August 2015.
[16]. Australian
Bar Association, ABA
opposes revocation of citizenship without conviction, media release, 19
June 2015, accessed 11 August 2015. See for example M Dreyfus
(Australian Labor Party), Transcript
of doorstop, Canberra, media release, 17 June 2015;
P Wright (Australian Greens), Dutton’s
totalitarian citizenship laws an unprecedented power-grab, media release, 5 June 2015; C Palmer (Palmer
United Party), Revoking
citizenship not constitutional, media release, 9 June 2015; Law Council
of Australia, Proposed
citizenship revocation laws must abide with the Constitution and rule of law,
media release, 18 June 2015; all accessed 29 August 2015.
[17]. Professor
G Craven, ‘Stripping
citizenship from a traitor is plain dumb’, The Australian, 4 June
2015, p. 12, accessed 18 August 2015.
[18]. D
Roe and T Allard, ‘Revised
citizenship plan gets cautious backing from its former critics’, The Age,
23 June 2015, p. 6, accessed 10 August 2015.
[19]. Parliamentary
Joint Committee on Intelligence and Security (PJCIS), New
Parliamentary inquiry into Citizenship Bill, media release,
26 June 2015, accessed 29 August 2015.
[20]. PJCIS,
‘Inquiry
into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015’,
Australian Parliament website, accessed 2 August 2015.
[21]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 7, 2015, The Senate, Canberra, 12 August 2015,
p. 5, accessed 29 August 2015.
[22]. Ibid.,
p.5.
[23]. Ibid.,
pp. 5–8.
[24]. Ibid.,
p. 8.
[25]. Ibid.,
p. 9.
[26]. Ibid.,
pp. 9–10.
[27]. Ibid.,
p. 10.
[28]. Ibid.,
pp. 12–18.
[29]. Ibid.,
13.
[30]. Ibid.,
pp. 14–18.
[31]. Parliamentary
Joint Committee on Human Rights (PJCHR), Twenty-fifth
report of the 44th Parliament, The Senate, 11 August 2015, accessed 13
August 2015.
[32]. Ibid.,
pp. 28–31. International
Covenant on Civil and Political Rights, done at New York 16 December
1966, [(except Article 41)1976] ATS 23 (entered into force for Australia
(except Article 41) 13 November 1980) (Article 41 came into force generally on
28 March 1979 and for Australia on 28 January 1993), accessed 19
August 2015.
[33]. Article
14 is ‘concerned with procedural fairness, and encompasses notions of equality
in proceedings, the right to a public hearing and the requirement that hearings
are conducted by an independent and impartial body’. Other associated specific
and minimum guarantees that are affected include the presumption of innocence,
the right not to be punished twice for the same conduct, the right not to
incriminate oneself and a guarantee against retrospective criminal laws: PJCHR,
Twenty-fifth report of the 44th Parliament, op. cit.
[34]. Ibid.,
p. 27.
[35]. Ibid.,
pp. 30-31.
[36]. Ibid.,
p. 39. Convention
on the Rights of the Child, done at New York 20 November 1989, [1991]
ATS 4 (entered into force for Australia 16 January 1991), accessed 19
August 2015.
[37]. Ibid.,
p. 12.
[38]. J
Doyle, M Doran and D Conifer, ‘Terror
citizenship laws: Lawyers divided on merits of bill to strip dual nationals of
citizenship’, ABC News, 24 June 2015, accessed 21 July 2015.
[39]. P
Wright, Abbott’s
citizenship laws more about posturing than protection, media release,
27 June 2015, accessed 28 July 2015.
[40]. C Palmer, Revoking citizenship not
constitutional, op. cit.
[41]. J Kerin,
‘Xenophon
warns IS may hit Australians overseas’, Australian Financial Review,
23 June 2015, p. 10, accessed 29 August 2015.
[42]. See
for example, Law Council of Australia (LCA), Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 13; Ms S Chordia, Ms S Pillai and Professor G
Williams, Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, pp. 1–2, both accessed 29 August 2015. Among
those who question whether additional grounds for citizenship cessation should
be part of the Government’s response are Professor K Rubenstein, op. cit.,
p. 2; Professor B Saul, Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, pp. 1–2; Australian Lawyers for Human Rights
(ALHR), Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia)
Bill 2015, p. 1; Islamic Council of Queensland, Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015; Councils for Civil Liberties of Australia (joint
submission; CCLs), Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, pp. 2–4; all accessed
30 August 2015. See further C Barker, Citizenship revocation
on national security grounds: context and selected issues, op. cit.
[43]. Federation
of Ethnic Communities’ Councils of Australia (FECCA), Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 5, accessed 30 August 2015.
[44]. See
for example Professor H Irving, ‘Bill
relies on legal fiction of self-executing law to revoke citizenship’, The Conversation, 17 August 2015,
accessed 17 August 2015.
[45]. Professor
G Williams, Evidence
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 12–13, 4 August 2015, accessed 30 August
2015.
[46]. Explanatory
Memorandum, op. cit., p. 5.
[47]. Chordia
et al, op. cit. With reference to sections 7 and 24 of the Constitution
and the decision of the High Court in Roach v Electoral Commissioner (2007)
233 CLR 162, [2007]
HCA 43, these submitters also argue that ‘[T]he Bill, if passed, may also
be impugned on constitutional grounds because of the manner in which it removes
the capacity of a person to vote in federal elections. Sections 7 and 24 of the
Constitution state that the “people of the Commonwealth” must directly choose
the members of the federal Parliament’: p. 3.
[48]. LCA,
Submission to PJCIS, op. cit., p. 8.
[49]. Dr
R Thwaites (University of Sydney), Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, accessed 30 August 2015.
[50]. See
for example Centre for Comparative Constitutional Studies, Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, pp. 1–3, accessed 12 August 2015; Professor A
Twomey (University of Sydney), Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, pp. 1–4, accessed 30 August 2015;
Dr R Thwaites, op. cit.; LCA, Submission to PJCIS,
op. cit., pp. 9–13; Professor K Rubenstein, op. cit.,
pp. 2, 4; ALHR, op. cit., pp. 6–7; Muslim Legal Network (NSW), Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 8, accessed 30 August 2015.
[51]. See
for example LCA, Submission to PJCIS, op. cit., pp. 13–15; ALHR,
op. cit., p. 2; Australian Human Rights Commission (AHRC), Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, pp. 4–5; accessed 31 August 2015.
[52]. See
for example LCA, Submission to PJCIS, op. cit., pp. 3–4, 9–12;
Chordia et al, op. cit., p. 1–2; FECCA, op. cit., p. 5;
Australian Bar Association (ABA), Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 3–4; Amnesty International, Submission
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 4; both accessed
31 August 2015.
[53]. See
for example Professor A Twomey, op. cit., p. 5; Centre for
Comparative Constitutional Studies, op. cit., p. 11; LCA, Submission
to PJCIS, op. cit., pp. 12–15; Chordia et al, pp. 5–6.
[54]. See
for example LCA, Submission to PJCIS, op. cit., pp. 16–24; CCLs,
op. cit., pp. 4–5; Chordia et al, pp. 6–7; Professor B Saul,
op. cit., pp. 5–8; Commonwealth Ombudsman, Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, accessed 31 August 2015.
[55]. LCA,
Submission to PJCIS, op. cit., pp. 3–4, 9–12; Chordia et al,
op. cit., pp. 1–2; FECCA, op. cit., pp. 4–5; ABA Submission
to PJCIS., op. cit., pp. 3–4; AHRC, op. cit., pp. 3–5;
Amnesty International, op. cit., pp. 3–4.
[56]. Explanatory
Memorandum, op. cit., p. 3.
[57]. The
Statement of Compatibility with Human Rights can be found at pages 27-35 of the
Explanatory Memorandum.
[58]. PJCHR,
Twenty-fifth report of the 44th Parliament, op. cit.,
pp. 4–46.
[59]. Explanatory
Memorandum, op. cit., p. 8.
[60]. Criminal Code Act 1995
(Criminal Code), Divisions 3–5, Part 2.2, accessed
30 August 2015.
[61]. Centre
for Comparative Constitutional Studies op. cit., p. 2.
[62]. Department
of Immigration and Border Protection (DIBP), Supplementary
submission (4) to PJCIS, Inquiry into Australian Citizenship Amendment
(Allegiance to Australia) Bill 2015, p. 5, accessed 24 August 2015.
[63]. See
for example Professor A Twomey op. cit., pp. 1–4; Dr R Thwaites,
op. cit.
[64]. Centre
for Comparative Constitutional Studies, op. cit., p. 2.
[65]. Crimes Act 1914,
section 19B, accessed 30 August 2015.
[66]. LCA,
Submission to PJCIS, op. cit., p. 10.
[67]. Professor
K Rubenstein, op. cit., p. 4.
[68]. ALHR,
op. cit., p. 2.
[69]. LCA,
Submission to PJCIS, op. cit., p. 10; CCLs, op. cit., p. 6; Chordia
et al, op. cit., p. 6.
[70]. Dr R Thwaites,
op. cit. See also Muslim Legal Network (NSW), op. cit., p. 8.
[71]. Professor
H Irving, Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 5, accessed 30 August 2015;
Dr R Thwaites, op. cit. Relevantly, paragraph 11(2)(a) of the Citizenship
Act provides that, unless the contrary intention appears, the Act extends
to ‘acts, omissions, matters and things outside Australia’.
[72]. Explanatory
Memorandum, op. cit., p. 10.
[73]. Ibid.
These restrictions are set out in sections 7.1 and 7.2 of the Criminal
Code.
[74]. LCA,
Submission to PJCIS, op. cit., p. 24, accessed 4 August 2015.
[75]. Ibid.
[76]. Ibid.
[77]. Centre
for Comparative Constitutional Studies, op. cit., p. 12. See Explanatory
Memorandum, op. cit., p. 32.
[78]. Explanatory
Memorandum, op. cit., p. 33.
[79]. Nationality
and Citizenship Act 1948, Section 19. The Act was subsequently renamed the Australian
Citizenship Act 1948.
[80]. LCA,
Submission to PJCIS, op. cit., p. 7.
[81]. Ibid.
[82]. Professor
K Rubenstein, op. cit., p. 3.
[83]. Ibid.,
p. 4.
[84]. See
further Australian Government, ‘Listed
terrorist organisations’, Australian National Security website, accessed
30 August 2015.
[85]. Explanatory
Memorandum, op. cit., p. 16.
[86]. Ibid.
[87]. LCA,
Submission to PJCIS, op. cit., p. 13.
[88]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., p.
11.
[89]. Explanatory
Memorandum, op. cit., p. 14.
[90]. ALHR,
op. cit., p.2. See also Chordia et al, op. cit., pp. 5–6.
[91]. A Lamoin
(Chief Technical Adviser, UNICEF Australia), Evidence
to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, 5 August 2015, p. 5, accessed
31 August 2015.
[92]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, op. cit ,
p. 11; AHRC, op. cit, p. 4.
[93]. DIBP,
Supplementary submission (4) to PJCIS, op. cit., p. 6.
[94]. Explanatory
Memorandum, op. cit., p. 19.
[95]. Ibid.,
pp. 19–21. This includes offences concerning urging violence, advocating
terrorism and conducting unlawful drills or military exercises.
[96]. Ibid.,
pp. 8–9.
[97]. Professor
A Twomey, op. cit., p. 5.
[98]. Centre
for Comparative Constitutional Studies, op. cit., p. 11, (quoting from the Statement
of Compatibility [18] and Nystrom v Australia, [7.6]), accessed
10 August 2015.
[99]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, op. cit.,
pp. 9– 10.
[100]. During
the hearings of the PJCIS in Canberra on 4 August 2015, it was queried whether,
in view of the fact that there is no reference to section 29 of the Crimes
Act in the Explanatory Memorandum (see p. 21), it might in fact not have
been intended to have been included in the Bill introduced in the Parliament on
24 June 2015. The issue was not resolved during the course of the
hearing.
[101]. LCA,
Submission to PJCIS, op. cit., pp. 12–13. Others critical of the inclusion of
that offence include Professor A Twomey, op. cit., p. 5; Chordia et
al, op. cit., p. 5; CCLs, op. cit., p. 5.
[102]. LCA, Submission to
PJCIS, op. cit., pp. 12–15; Professor A Twomey, op. cit.,
p. 5; Chordia et al, op. cit., pp. 5–6; Senate Standing
Committee for the Scrutiny of Bills, Alert digest, op. cit.,
pp. 9–10.
[103]. LCA,
Submission to PJCIS, op. cit., p. 13.
[104]. Explanatory
Memorandum, op. cit., p. 12.
[105]. Ibid.
See also DIBP, Supplementary submission (4) to PJCIS, op. cit., p. 1.
[106]. This
criticism is identified by the Muslim Legal Network (NSW), op. cit., p. 6.
[107]. Section
47 of the Citizenship Act requires the notification of a decision made
under the Act.
[108]. Australian Security
Intelligence Organisation Act 1979, accessed 31 August 2015.
[109]. Ibid.,
section 38, Division 4 of Part IV.
[110]. Explanatory
Memorandum, op. cit., p. 24.
[111]. FECCA,
op. cit., p. 4. See also Muslim Legal Network (NSW), op. cit.,
p. 13; ALHR, op. cit., p. 8.
[112]. PJCHR,
Twenty-fifth report of the 44th Parliament, op. cit., p. 48.
[113]. Muslim
Legal Network (NSW), op. cit., pp. 17–18; LCA, Submission to PJCIS,
op. cit., pp. 18–19; Chordia et al, p. 3; ALHR, op. cit.,
p. 7; FECCA, op. cit., p. 3; ABA, Submission to PJCIS,
op. cit., p. 3.
[114]. Chordia
et al, op. cit., p. 3.
[115]. Ibid.,
pp. 6–7. See also LCA, Submission to PJCIS, op. cit., pp. 18–19.
[116]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest,
op. cit., pp. 14–15.
[117]. Human
Rights Law Centre, Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 8, accessed 18 August 2015. See also LCA,
Submission to PJCIS, op. cit., pp. 20–21; Professor B Saul,
op. cit., p. 7; FECCA, op. cit., p. 3
[118]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., p.
17.
[119]. Professor
B Saul op. cit., p.6.
[120]. FECCA,
op. cit., p.3. See also LCA, Submission to PJCIS, op. cit.,
p. 20.
[121]. Chordia
et al, op. cit., p. 6.
[122]. AHRC,
op. cit., p.6.
[123]. PJCHR,
Twenty-fifth report of the 44th Parliament, op. cit., p. 12.
[124]. National Security
Information (Criminal and Civil Proceedings) Act 2004, accessed
2 September 2015.
[125]. DIBP,
Supplementary Submission (4) to PJCIS, op. cit., p. 4.
[126]. LCA,
Submission to PJCIS, op. cit., p.29.
[127]. Assistant
Professor B Arnold, Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p.7, accessed 3 August 2015.
[128]. LCA,
Submission to PJCIS, op. cit., p.7.
[129]. A
Lockyer and G Milad, ‘If
blocked from returning home, where will Australia’s jihadists go?’, The
Conversation, 9 September 2014, accessed 4 August 2015.
[130]. For
a summary of such arguments, see C Barker, Revoking citizenship on
national security grounds: context and selected issues, op. cit.,
pp. 13–17. See also K Rubenstein, op. cit., p. 2; CCLs,
op. cit., pp. 3–4; Professor B Saul, op. cit.,
pp. 1–2; S Reich and L Kirk (Australian National University
College of Law Migration Law Program), Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 9, accessed 31 August 2015.
[131]. The
current legislative framework is summarised in C Barker, Revoking
citizenship on national security grounds: context and selected issues,
op. cit., pp. 8–10.
[132]. G
Brandis (Attorney-General), Transcript
of interview with Patricia Karvelas: RN Drive: Countering Violent Extremism
Summit, media release, 12 June 2015; S Maiden, ‘New
spy powers to fight extremists’, The Sunday Telegraph,
5 July 2015, p. 11; both accessed 13 July 2015.
[133]. T Abbott
(Prime Minister), Magna
Carta lecture: speech, Canberra, media release, 24 June 2015,
accessed 16 July 2015. See also T Abbott, Transcript
of doorstop interview: Cairns, media release, 19 June 2015,
accessed 13 July 2015.
[134]. See
C Barker, Revoking citizenship on national security grounds: context
and selected issues, op. cit., pp. 11–13 for further detail.
[135]. Explanatory
Memorandum, op. cit., p.2.
[136]. LCA,
Submission to PJCIS, op. cit., p. 26.
[137]. Islamic
Council of Queensland, op. cit. See also Refugee Council of Australia,
op. cit; Amnesty International, op. cit., pp. 6–7.
[138]. See
for example Human Rights Law Centre, op. cit., p. 8; LCA, Submission to PJCIS,
op. cit., pp. 25–27; Refugee Council of Australia, op. cit.
[139]. Commonwealth
Ombudsman, op. cit.
[140]. Amnesty
International, op. cit., p. 6; Muslim Legal Network (NSW),
op. cit., pp. 11–12; FECCA, op. cit., p. 2; Department of
Foreign Affairs and Trade, ‘Dual nationals’,
Australian Government Smart Traveller website, accessed
2 September 2015.
[141]. J Waters
and staff, ‘Australia
defies UN on deportation case’, ABC News, 26 April 2012;
R Wallace and J Stapleton, ‘I’ll
go straight: exiled burglar’, The Australian,
10 March 2006, p. 5, accessed 2 September 2015.
[142]. M O’Neill,
‘Bring
Jovicic home, family pleads’, Lateline, transcript, ABC,
30 November 2005; R Wallace and J Stapleton, ‘I’ll go
straight: exiled burglar’, op. cit., both accessed 2 September 2015.
[143]. Professor
H Irving, Submission to PJCIS, op. cit., p. 7. See also Professor
K Rubenstein, op. cit., p. 6; FECCA, op, cit., p. 1.
[144]. CCLs,
op. cit., p. 6.
[145]. T
Abbott and P Dutton, New measures to strengthen Australian citizenship,
op. cit.
[146]. ABC,
‘Fact check: how does Australia’s plan to strip foreign fighters of citizenship
compare to other nations?’, op. cit.; S Pillai, ‘Proposals to strip
citizenship take Australia a step further than most’, op. cit.
[147]. S
Pillai (Monash University), Evidence
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 20, 4 August 2015, accessed 11 August 2015.
[148]. Chordia
et al, op. cit., p. 2.
[149]. Centre
for Comparative Constitutional Studies, op. cit., p. 13. In its submission, the
Centre provides details of relevant US, UK and Canadian revocation laws: pp.
7–10.
[150]. AHRC,
op. cit., p. 14. See further Centre for Comparative Constitutional
Studies, op. cit., pp. 7–10.
[151]. DIBP,
Supplementary
submission (3) to PJCIS, Inquiry into Australian Citizenship Amendment
(Allegiance to Australia) Bill 2015, Question CAA001, accessed
31 August 2015.
[152]. Explanatory
Memorandum, op. cit., p. 5.
[153]. Ibid.,
pp. 4–5. The cases referred to are Singh v Commonwealth (2004) 222 CLR
322, [2004]
HCA 43 and Koroitamana v Commonwealth (2006) 227 CLR 31,
[2006] HCA 28.
[154]. Ibid.,
p. 5. Although the Government has received advice on the constitutionality
of the Bill, consistent with standard practice, this advice was not publicly
available at the time of the preparation of this Bills Digest. See DIBP,
Supplementary submission (3) to PJCIS, op. cit.
[155]. Centre
for Comparative Constitutional Studies, op. cit., p. 6. The Centre refers in
this regard to a number of decisions of the High Court, including that of Te,
in which Chief Justice Gleeson said that:
Parliament
cannot, simply by giving its own definition of “alien”, expand the power under
s 51 (xix) to include persons who could not possibly answer the description of “aliens”
in the ordinary understanding of the word.
Re
Minister for Immigration and Agricultural Affairs; ex parte Te (2002) 212
CLR 162, [2002]
HCA 48, at [31] per Gleeson CJ. A similar point is made by the Castan
Centre for Human Rights Law (Monash University), Submission
to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to
Australia) Bill 2015, p. 2, accessed 29 July 2015.
[156]. Centre
for Comparative Constitutional Studies, op. cit., p. 7.
[157]. Ibid.
[158]. Professor
H Irving, Submission to PJCIS, op. cit., p. 4.
[159]. Professor
K Rubenstein, op, cit., p. 5.
[160]. Commonwealth
Ombudsman, op. cit., pp. 2–3.
[161]. Dr
R Thwaites, op. cit.
[162]. Professor
G Williams AO (University of New South Wales), Evidence to PJCIS, op. cit., p.14;
Professor H Irving, Submission to PJCIS, op. cit., pp. 3–5;
CCLs, op. cit., p. 4.
[163]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, op. cit.,
p. 7.
[164]. DIBP,
Submission to PJCIS, op. cit., p. 2. See also DIBP, Supplementary submission
(4) to PJCIS, op. cit., p. 1.
[165]. ABA,
Submission to PJCIS, op. cit., p. 3.
[166]. Statement
of Compatibility, Explanatory Memorandum, op. cit., p. 31.
[167]. Centre
for Comparative Constitutional Studies, op. cit., p. 5.
[168]. CCLs,
op. cit., p. 5.
[169]. Statement
of Compatibility, Explanatory Memorandum, op. cit., p. 31. See also DIBP, Supplementary
submission (4) to PJCIS, op. cit., p. 3.
[170]. PJCHR,
Twenty-fifth report of the 44th Parliament, op. cit., p. 25.
[171]. Citizenship
Act, sections 47 and 52.
[172]. DIBP,
Supplementary submission (4) to PJCIS, op. cit., pp. 2–3.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.