The Bill and its referral
On 28 November 2018, the Attorney-General, the Hon Christian Porter MP, introduced the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 (the Bill) into the House of Representatives.
In his second reading speech, the Attorney-General noted that the
ability to cease the Australian citizenship of those who seek to do us harm forms an integral part of our ongoing response to international violent extremism and terrorism. It is a key part of our strategy to keep Australians safe.
On the same day, the Attorney-General wrote to the Parliamentary Joint Committee on Intelligence and Security (the Committee) to refer the Bill for inquiry and report.
Conduct of the Inquiry
The Committee resolved to undertake an inquiry into the Bill and details of the inquiry were uploaded to the Committee’s website, www.aph.gov.au/pjcis, on 3 December 2018. Calls for submissions were announced the same day, with submissions requested by 11 January 2019.
The Committee received 19 submissions and eight supplementary submissions. A list of submissions received can be found at Appendix A.
The Committee held a public hearing on 30 January 2019 and a private hearing on 13 February 2019. A list of witnesses appearing at the hearings can be found at Appendix B.
Copies of submissions, the transcript from the public hearing and links to the Bill and Explanatory Memorandum, can be accessed at the Committee’s website.
The Report comprises two chapters:
This chapter sets out the conduct of the inquiry, discusses the Committee’s previous Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Advisory Report on the Allegiance to Australia Bill), and provides an outline of the Bill and its rationale,
Chapter two includes the Committee’s comments and a list of recommendations.
The Australian Citizenship Act 2007 (the Act) contains a number of provisions dealing with both acquiring and ceasing Australian citizenship. In 2015, the Government introduced amendments to the Act via the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Allegiance to Australia Bill). The legislative changes broadened the powers of the Minister relating to the cessation of Australian citizenship for individuals engaging in terrorism, and those who are a serious threat to Australia and Australian interests.
The then Minister for Immigration and Border Protection, the Hon Peter Dutton MP, noted at the time that the Allegiance to Australia Bill addressed
the challenges posed by dual citizens who betray Australia by participating in serious terrorism related activities …
The concept of allegiance is central to the constitutional term ‘alien’ and to this the bill’s reliance upon the aliens power in the Constitution. The High Court has found that an alien is a person who does not owe allegiance to Australia. By acting in a manner contrary to their allegiance, the person has chosen to step outside of the formal Australian community.
The Committee conducted an inquiry into the Allegiance to Australia Bill and presented its Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 to Parliament in September 2015.
The Advisory Report on the Allegiance to Australia Bill made 27 recommendations, three of which were directly relevant to the proposals made in the current Bill. These three recommendations are provided in full in Appendix C. In summary the relevant recommendations are:
Recommendation 7: an individual’s citizenship should not be revoked under section 35A of the Act unless they had been convicted of a relevant offence with a sentence applied of at least six years imprisonment, or multiple sentences totalling at least six years’ imprisonment,
Recommendation 9: an individual’s citizenship should not be revoked under section 35A of the Act unless they had been convicted of an offence that carries a minimum penalty of 10 years imprisonment, and
Recommendation 10: Section 35A may be applied retrospectively to convictions for relevant offences where sentences of ten years or more were given. However, retrospectivity must not apply to convictions handed down more than ten years prior to the Bill receiving Royal Assent.
The Committee’s recommendations were accepted by the Government and incorporated in the subsequent Australian Citizenship Amendment (Allegiance to Australia) Act 2015, which received Assent on 11 December 2015.
Rationale for the Bill - the current environment
In its submission to the Committee, the Department of Home Affairs noted that:
At the time section 35A (along with sections 33AA and 35) was inserted into the Citizenship Act, the threat environment was largely characterised by the danger posed to Australia and its interests by foreign fighters, including those who sought to return to Australia after travelling to the conflict zone
The number of Australians (and other foreign terrorist fighters) attempting to travel to the conflict zone has reduced considerably with the collapse of the self-declared caliphate of the Islamic State of Iraq and the Levant (ISIL). However, the violent ideology of Sunni Islamist terrorist groups, such as ISIL and al-Qa’ida, continues to appeal to a small number of people in Australia, and security and law enforcement agencies remain focused on stopping a terrorist attack in Australia
As at 3 January 2019, 58 individuals have been convicted and sentenced for Commonwealth terrorism offences in Australia since 2001. Forty-six of these individuals (just over 80% of the cohort) were sentenced in the last three years, after the commencement of the provisions in the Allegiance to Australia Bill from 12 December 2015
As at 3 January 2019, while 12 individuals offshore have ceased to be Australian citizens as a result of terrorism-related conduct, no individuals have had their Australian citizenship ceased under section 35A of the Citizenship Act.
The Department went on to quantify the potential impact the Bill would have on citizenship cancellations for Australia-based individuals:
Having regard to information currently known as at January 2019, the amendments, if passed, may give the Minister the power to cease the Australian citizenship of a further 18 individuals (five currently serving sentences, and 13 who have been released into the community) under section 35A. While the number of eligible individuals may increase, there is no change to the existing safeguards and review mechanisms available under the Citizenship Act – namely, the public interest considerations the Minister must have regard to, and the availability of judicial review following a determination by the Minister.
The Bill in Detail
The Bill proposes to amend section 35A (Conviction for terrorism offences and certain other offences) of the Act.
Clause 1 of the Bill proposes repealing existing subsection 35A(1) of the Act and replacing it with a new subsection 35A(1). While the proposed provisions largely mirror those in the current section 35A(1), the Bill makes three major changes:
A person’s citizenship may be revoked if they are convicted of associating with a terrorist organisation under section 102.8 of the Criminal Code (and other conditions are satisfied).
This offence carries a maximum penalty of three years imprisonment, unlike all other offences captured under section 35A which have maximum penalties ranging from ten years to life imprisonment;
A person’s citizenship may be revoked if the Minister is ‘satisfied that the person would not, if the Minister were to determine that the person ceases to be an Australian citizen, become a person who is not a national or citizen of any country’.
Under the current Act, the person must be a national or citizen of another country at the time when the Minister makes the determination.
A person convicted of a specified terrorism offence need no longer to have been sentenced to a period of imprisonment of at least six years, or to periods of imprisonment that total at least six years, as required under current section 35A. No minimum sentence is required in the legislation in order for someone convicted of a relevant offence to have their citizenship revoked.
This provision would apply retrospectively to all individuals who have been convicted of a specified terrorism offence (see below) from 12 December 2005.
Clauses 2 and 3 of the Bill propose consequential amendments to subsections 35A(4) and (4)(b) of the Act.
Clause 4 sets out the application provisions that relate to clauses 1 to 3 of the Bill.
The effect of these clauses is considered below.
How may a person cease to be a citizen?
Proposed new subsection 35A(1) of the Act sets out the circumstances under which the Minister may determine that a person ceases to be an Australian citizen. The Minister must be satisfied that:
The person has a relevant terrorism conviction or relevant other conviction,
The person will not become a person who is not a national or citizen of any country,
The person has repudiated their allegiance to Australia through their conduct, and
It is not in the public interest for the person to remain an Australia citizen.
Each of these factors is considered further below.
The person has a relevant terrorism conviction
Clause 1 of the Bill proposes to insert new clause 35A(1A) into the Act. The proposed subsection states that a person has a relevant terrorism conviction if they have been convicted of an offence/s against:
Subdivision A of Division 72 of the Criminal Code
Subdivision B of Division 80 of the Criminal Code
Part 5.3 of the Criminal Code (except Division 104 or 105)
Part 5.5 of the Criminal Code (Foreign incursions and recruitment) Act 1978
Section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.
The relevant provisions of all the offences that constitute a relevant terrorism conviction are included in a table at Appendix D.
Inclusion of subsection 102.8 of the Criminal Code
These offences largely mirror the existing offences under current section 35A(1) of the Act, with the exception of the addition of subsection 102.8 of Part 5.3 of the Criminal Code. This offence (associating with a terrorist organisation), carries a maximum penalty of three years imprisonment and is currently expressly excluded from being used as the basis of citizenship revocation by virtue of subsection 35A(1)(a)(iii) of the Act.
The Explanatory Memorandum states that the proposed inclusion of the subsection 102.8 offence
recognises that knowingly associating with a terrorist organisation, on multiple occasions, for the purposes of supporting the terrorist organisation to expand or continue to exist, is a serious offence. It is appropriate that persons convicted of this offence be eligible for cessation of citizenship on conviction, as the offence addresses the fundamental unacceptability of the terrorist organisation itself, by making meeting or communicating (“associating”) with its members in a manner which assists its continued existence or expansion, illegal.
Abolition of minimum six year sentence or to periods of imprisonment that total at least six years
The Bill proposes to remove the requirement in the current section 35A that the person has, in respect of the conviction or convictions, been sentenced to a period of at least six years, or to periods of imprisonment that total at least six years.
The removal of this requirement, combined with Clause 4 of the Bill (see below), has the effect that any person convicted of a relevant terrorism offence on or after 12 December 2005 will be eligible for citizenship revocation under new subsection 35A(1), regardless of the duration of their sentence. The Explanatory Memorandum states that:
In light of the evolving terrorist threat, the Government considers it appropriate that the Minister be able to consider for cessation of citizenship all persons convicted of a terrorist offence after 12 December 2005, as conduct which poses harm to the Australian community. This includes, for example, offences against section 102.8 of the Criminal Code in relation to associating with a terrorist organisation for the purposes of supporting the terrorist organisation to expand or continue to exist; an offence which carries a maximum penalty of 3 years’ imprisonment.
The person has a relevant other conviction
The Bill also proposes to insert new clause 35A(1B) into the Act. The clause introduces a range of non-terrorism offences that may be used as the basis to revoke a person’s citizenship. These offences are found in:
Division 82 of the Criminal Code (sabotage, other than section 82.9 - preparing for or planning sabotage offences),
Division 91 of the Criminal Code (espionage), and
Division 92 of the Criminal Code (foreign interference).
Each of these offences attracts a maximum penalty of between 10 years to life imprisonment. A summary of these offences and the relevant penalty is found in in Appendix E.
Clause 35A(1B)(b) of the Bill requires that a person convicted of one of the offences under Division 82, 91 or 92 of the Criminal Code must have been sentenced to a single or cumulative period of at least six years’ imprisonment in respect of the conviction or convictions in order to be considered for citizenship revocation. According to the Explanatory Memorandum:
This amendment is consequential to the repeal of current paragraph 35A(1)(b) and, subject to new paragraph 35A(1)(b), maintains the current operation of subsection 35A(1) insofar as it relates to offences other than terrorism offences.
In addition, the person must have been sentenced to a period of imprisonment for at least six years or to periods of imprisonment that total at least six years, in relation to an offence outlined under Divisions 82, 91 and 92 of the Criminal Code.
The person must not become a person who is not a national or citizen of any country
Under the current legislation, an individual must be a national or citizen of a country other than Australia at the time when they have their citizenship revoked.
Under proposed clause 35A(1)(b) of the Bill, this requirement would change to one where the Minister is satisfied that the person
would not, if the Minister were to determine that the person ceases to be an Australian citizen, become a person who is not a national or citizen of any country.
In his second reading speech, the Attorney-General noted that the Bill
provides the minister need only be satisfied that the person will not become stateless if their Australian citizenship ceases. It is well established under case law that where statute provides a minister must be 'satisfied' of a matter, it is to be understood as requiring the attainment of that satisfaction reasonably.
The Explanatory Memorandum notes that proposed new paragraph 35A(1)(b) will require the Minister to be ‘satisfied’ the person will not become a person who is not a national or citizen of any country and states that this is
consistent with other provisions of the Citizenship Act. For example, current paragraph 34(3)(b) of the Citizenship Act provides that the Minister must not revoke a person’s Australian citizenship on the basis of certain offences or fraud if the Minister is satisfied that the person would become a person who is not a national or citizen of any country.
The Explanatory Memorandum—as part of the Statement of Compatibility with Human Rights—notes that
The new test is consistent with Australia’s international obligations to not render a person without the citizenship or nationality of any country stateless and will be applied consistent with longstanding practice as it applies to other provisions of the Act. This test has been used for many cases of revocation of citizenship for serious offences (under section 34 of the Act) and there are well-established practices and processes in place.
The person has repudiated their allegiance to Australia through their conduct
Proposed clause 35A(1)(c) of the Act requires the Minister to be satisfied that ‘the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia’.
This clause is consistent with current paragraph 35A(1)(d) of the Act.
It is not in the public interest for the person to remain an Australian citizen
There are a number of criteria the Minister must be satisfied with in order to determine that it is not in the public interest for the person to remain an Australia citizen. These criteria are that same as those found in the existing section 35A(1) and are as follows:
the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences;
the degree of threat posed by the person to the Australian community;
the age of the person;
if the person is aged under 18—the best interests of the child as a primary consideration;
the person’s connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;
Australia’s international relations; and
any other matters of public interest.
Clause 4 – Application and saving provisions and retrospectivity
Under current section 35A of the Act, application provisions introduced by the Allegiance to Australia Bill allow for retrospective application of the law from 12 December 2005 to 12 December 2015. However, as a safeguard, the law only applies retrospectively to individuals who were convicted between these dates and given a prison sentence of 10 years of more.
Under Clause 4 of the Bill, the above still applies but only for relevant other convictions. The Bill proposes that relevant terrorism offences only require that the conviction occurred on or after 12 December 2005. This has the effect of ensuring that anyone convicted of a relevant terrorism offence from 12 December 2005 may be eligible for citizenship revocation regardless of the duration of their sentence.
On this matter, the Explanatory Memorandum notes that
In order to respond to the evolving threat environment, this Bill proposes to broaden the threshold for retrospective application to individuals with a relevant terrorism conviction, regardless of the length of the sentence of imprisonment imposed. Between September 2014 and November 2018, Australian agencies led 15 major disruption operations in response to potential attack planning, and charged 93 individuals with terrorism-related offences, with the majority of these events occurring after the passage of the Allegiance Act in December 2015. The amendments in this Bill ensure that one of the important legislative tools available to protect the Australian community from the threat of terrorism remains effective in the current threat environment.
The carefully circumscribed definition of a ‘relevant terrorism conviction’ narrows the retrospective application of the Bill, in line with the PJCIS’ comment that retrospectivity be applied with caution. As outlined in paragraph 7, the provisions only appl[y] to terrorism offences which target behaviour that is especially harmful to community safety and amounts to a repudiation of allegiance to Australia. It does not, for instance, include contravention of preventative detention orders or control orders which are designed to enable law enforcement agencies to intervene early to protect the community and orders under these schemes are made on lower, non-criminal thresholds.
The Committee’s comments on the Bill, and recommendations, are found in the next chapter.