In reviewing the effectiveness of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act 2007, the Committee received submissions from stakeholder agencies and civil society submitters. Stakeholder agencies presented conceptual support for citizenship cessation, but many other submitters raised concerns about the provisions’ unintended consequences.
The Department of Home Affairs argued that these provisions played a useful role as part of Australia’s counter-terrorism framework.
The Department also argued that limiting membership in Australian society to those who retain allegiance to Australia is key to retaining the cohesion and strength of the Australian community, which the Department views as the best defence against violent extremism.
The Australian Security Intelligence Organisation (ASIO) reported the importance of the legislation as part of a suite of tools that are used to minimise the threat posed by terrorism, but also stated the difficulty in assessing the deterrent effect of the provisions:
It is too early to determine any direct deterrent effects or other security outcomes among the individuals whose citizenship has ceased pursuant to sections 33AA and 35. As with other counterterrorism measures, the security outcomes associated with citizenship cessation will vary from case to case.
While ASIO cited the possibility of citizenship cessation acting as a deterrent to those who would otherwise travel to Syria or Iraq, it also noted the risks associated with keeping Australians who have been involved in the Syria-Iraq conflict offshore and potentially losing visibility and control over this cohort:
There may be occasions where the better security outcome would be that citizenship is retained, despite a person meeting the legislative criteria for citizenship cessation—for example, where the Australian Federal Police has criminal charges that could be pursued if the person were to remain an Australian citizen.
ASIO also noted the potential for the effectiveness of the provisions to be improved:
A ministerial decision-making model of cessation would allow ASIO and other relevant agencies scope to advise against citizenship cessation in circumstances where the outcome would be prejudicial to security or where the security risk could be better managed utilising other options. At present, the current operation of law provision does not provide operational agencies with the flexibility required to utilise citizenship cessation to maximum effect.
The Australian Federal Police (AFP) cited the operational benefits of citizenship cessation provisions for law enforcement and its support for the provisions as one of the measures available to them. It also noted the potential deterrent effect of the provisions, but—as with ASIO—the AFP explicitly stated that they were unable to ‘quantify the effectiveness of the terrorism-related citizenship cessation provisions’ due to lack of data. The AFP also noted that a lack of Australian citizenship can limit what charges could be pursued and prosecuted.
The Department of Foreign Affairs and Trade noted that the automaticity of the provisions does not allow the government to consider all aspects of the national interest before an individual loses their citizenship. The Department stated that this ‘has the potential to create challenges in the management of Australia’s international relationships and interests’.
This lack of information regarding the effectiveness of the provisions was raised by many submitters as the primary factor that prevented in-depth assessment of the provisions’ operation and effectiveness. Dr John Coyne and Dr Isaac Kfir’s submission, along with that by Dr Sangeetha Pillai and Professor George Williams, stressed that the Government ought to share information about the effectiveness of the provisions with the public and thereby justify the necessity of the provisions.
Along with ASIO and the AFP’s lack of quantitative data on how often the provisions have been exercised, Ms Philippa De Veau, General Counsel and First Assistant Secretary, Legal Division, Department of Home Affairs, stated at the Committee’s public hearing on 2 August 2019 that neither the Department nor the Minister were aware of how many individuals have had their citizenship automatically ceased. Ms De Veau stated that
we know are the ones that we know about. We don't know about the ones we don't know about. That's a product of the way that the operation of law model works.
The Department of Home Affairs, in response to questioning around the lack of ‘substantive empirical evidence’ available proving that citizenship revocation effectively functions as a deterrent or that any individual measure can be assessed for its effectiveness in the realm of counter-terrorism, stated that the
substantive empirical evidence, in the sense that I think you're suggesting, is very rarely part of counterterrorism work. To have the benefit of the quantitative impact evaluation, where we could see the objective outcomes of any one particular measure, is just not possible. Our work is far more complex than that.
The Independent National Security Legislation Monitor (INSLM) was also unable to gauge the actual number of how many individuals have lost their citizenship and reflected that the number of individuals affected under sections 33AA and 35 may be unknown even to authorities due to the self-executing nature of the provisions:
While the Minister has stated publicly that ss 33AA and 35 have operated on 12 occasions, the government witnesses in the review accepted there may well be many formerly dual but now ex-Australian citizens who are simply unknown to them. That is no criticism of them; instead, it reflects the universal reality that not all wrong-doers are known to the authorities.
Within this context, the Law Council of Australia noted how difficult it was to assess the practical effectiveness of the provisions:
It is difficult to gauge how effective these laws are in practice in terms of deterring people from engaging in terrorism related activity. The laws are effective in achieving a symbolic statement by the Australian Government of denouncing Australian citizens who engage in terrorist related activity as not deserving of their Australian citizenship. However, whether these laws achieve the purported aim of greater safety for the Australian community is debatable. The regime may in fact be counterproductive to this aim.
Dr Sangeetha Pillai and Professor George Williams raised that the foundations of such citizenship revocation policies in the United Kingdom, Canada and Australia have not had a rationale that is entirely based on evidence of efficacy. Rather, they suggested that the
security rationale is based on the idea that these undesirable citizens may pose a threat to national security and that managing this risk of harm warrants removing them from the citizenry and, where possible, from the nation itself. By contrast, the symbolic rationale is less grounded in pragmatic considerations. It asserts that certain members of the citizenry do not deserve to hold citizenship, irrespective of whether or not the fact that they hold it presents an increased risk of harm.
Following this theme, a range of submitters raised concerns about the potential ineffectiveness and unintended consequences of the provisions. They noted that the provisions may actually be having a detrimental impact, as they could potentially:
leave individuals at large continue to propagate their violent extremist ideas and commit further offences abroad;
lead to authorities struggling to have individuals returned to Australia for prosecution;
increase the risk of radicalisation and prevent intervention measures, such as deradicalisation programs;
prevent other members of the community from informing on an individual for fear that they—or their children—would lose their citizenship and/or be subject to deportation; and
lessen public confidence in the wider effectiveness of Australia’s counter-terrorism measures.
Dr John Coyne and Dr Isaac Kfir examined these threats in detail, highlighting the potentially counterproductive nature of the provisions:
The threat of citizenship revocation may in fact be counterproductive because
i. members of the community may choose not to inform the security establishment that an individual is on the path of violent extremism because they would fear that the person would be deported
ii. it may mean that the authorities would struggle to have an Australian accused of membership of a proscribe group return to Australia
iii. an Australian who is already off-country who is accused of violent extremism would travel to a foreign land from where they can continue to promote their violent extremist message instead of undergoing disengagement and deradicalization programs.
The INSLM was also concerned by the potential of the provisions to breach Australia’s international obligations, impact Australia’s international relationships and create legal difficulties in prosecuting offenders.
The Committee acknowledges the concerns raised by submitters around the unintended consequences of these provisions, but the Committee also notes the evidence from ASIO that it is
too early to determine any direct deterrent effects or other security outcomes among the individuals whose citizenship has ceased pursuant to sections 33AA and 35.
The Committee accepts that citizenship cessation may be a useful counter-terrorism tool in some circumstances. However, the Committee also accepts that the use of such a tool may have unintended consequences and so must be subjected to limitations and safeguards, and be regularly reviewed.