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Cancellation of Australian citizenship built on shaky foundations?


Whether dual nationals or citizens who engage in terrorist activity should be stripped of their Australian citizenship is unlikely to be the focus of extensive discussion when Parliament resumes after its winter recess. That is because both sides of politics appear to broadly agree that they should. Rather, it is the breadth and mechanics of the three new cessation provisions (automatically triggered when a person either engages in prescribed conduct, serves or fights for a terrorist organisation, or is convicted of certain offences) contained in the Government’s Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 that is likely to generate considerable debate, and if history is anything to go by, that debate is long overdue.

When the Nationality and Citizenship Bill 1948 (the Bill that introduced formal Australian citizenship) was introduced into Parliament on 30 September 1948, it contained a new and curious provision taken from a similarly novel provision inserted into the 1946 Canadian Citizenship Act. Clause 19 stated ‘an Australian citizen who, under the law of country other than Australia, is a national or citizen of that country and serves in the armed forces of a country at war with Australia shall, upon commencing so to serve, cease to be an Australian citizen’.

Very little information was provided by the then Labor Government by way of explanation for its inclusion. In his second reading speech, Arthur Calwell, (then Minister for Immigration) simply noted that its inclusion ‘was both justifiable and desirable’. The Explanatory Memorandum elaborates a little further noting that ‘during the war years a number of cases came under notice in which persons possessing dual British and (e.g.) German nationality served in enemy forces. It is considered desirable that in such circumstances Australian citizenship should automatically be lost’.

Interestingly, Howard Beale of the Liberal Party appears to have been the only parliamentarian engaged in the 1948 debate to substantively query this clause, noting ‘this clause causes me a little anxiety…this provision may operate unfairly’. With respect to the automatic operation of this provision, he stated ‘I understand that this is a new provision which does not occur in other legislation… I should prefer to have a provision whereby such a person could be deprived of Australian citizenship in the proper circumstances. Deprivation of Australian citizenship should not be automatic’.

In noting that ‘this clause goes too far’, he observed that ‘there may be plenty of instances of Australian citizens being caught up in the forces of another country in time of war…It would be harsh to deprive a man of his Australian citizenship out of hand by the automatic operation of this legislation on account of something which he could not help’.

However, Beale acknowledged that ‘if a man should serve in the forces of an enemy in circumstances which make him unworthy to be an Australian citizen, he should be deprived of his local citizenship’. However, he considered that it could best be achieved under clause 21. That clause provided that the Minister could make a decision to deprive a person of their citizenship (but not if it was acquired by birth or descent) if satisfied (amongst other things), that they had been disloyal to His Majesty. Such a person would be entitled to get advance notice of the Minister’s proposed decision, including the ground on which the order would be made, and be provided with a right of appeal to a committee of inquiry (chaired by a judge). 

In response, Arthur Calwell, did not address the automatic operation of the proposed provision, only noting that the reason for the provision was to prevent dual citizens from claiming assistance from the Australian Government following cessation of a war in which Australia was engaged. As he observed ‘We have the cases of some young Australians who were born in South Australia of German parentage to guide us. We do not consider that such persons, having served in enemy forces, should have the right to say, immediately after the war, "We are Australian citizens. We are in a bad situation. It is the obligation of the Australian Government to bring us back to Australia"’. Thus, it appears the provision was designed to circumvent certain persons abroad accessing consular assistance after the war and would thus have limited application.

This provision would not be revisited until 1998 when the Australian Citizenship Council was established as an independent body to advise the then Immigration Minister, Philip Ruddock, on contemporary issues in Australian citizenship policy and law to be addressed as Australia moved into the new millennium. In its 2000 report, the Council noted that it was aware that there was a view in the community that this provision should be tightened and that, specifically, if an Australian Citizen fights for another country…, irrespective of whether that country is at war with Australia, they should be deprived of their Australian Citizenship’.

The Council noted that ‘it is possible for Australian Citizens to be recruited for overseas military purposes and believes that this may be an issue for concern in some circumstances but not one that would be best addressed under Citizenship law’. The Council drew a distinction between Citizens who served in the armed forces of a country at war with Australia and those not at war with Australia and considered that loss of Citizenship in the latter case may be ‘unduly harsh’. In its response to the Report, the Coalition Government led by John Howard, agreed to retain and not to expand the existing wording of the provision.

When the Coalition Government introduced the Australian Citizenship Bill 2005 to replace and modernise the Australian Citizenship Act 1948, it again carried the provision forward simply noting that it is the ‘equivalent of section 19 of the old Act’. Again, it appears the practical operation and desirability of this provision, which has reportedly never been used, was not substantively debated. Moreover, despite the debate about the 2005 Bill occurring post 9/11 and the Bali bombings, and at a time when the Government had already foiled numerous terrorist attempts and secured convictions for terrorist related activity in Australia, the restricted application of this provision was not deemed worthy of reconsideration.

Despite receiving only cursory consideration back in 1948, and ever since for that matter, this provision has been retained on the statute books for close to 70 years.  It remains to be seen whether Parliament will take this latest opportunity created by the introduction of the Allegiance to Australia Bill to properly debate whether so-called ‘self-executing’ provisions that in this context operate to automatically strip a person of their citizenship by operation of law are reasonable, practical and desirable. One might argue that such a debate is a necessary and sensible precondition, if Parliament is to successfully rely on the precedent set by such a provision to significantly expand upon its operation.

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