The citizenship cessation provisions have wide-ranging implications for the rights of individuals and Australia’s international obligations. There are also additional implications that emerge via an analysis of comparable countries abroad. These implications indicate that flow-on effects from the provisions could develop into legal and humanitarian issues domestically and internationally.
Risk of statelessness
Submitters raised that an unintended consequence of these provisions was that individuals could be left stateless, with many citing the circumstances of Neil Prakash as an example of such a scenario. The Human Rights Law Centre (HRLC) discussed the difficulties of confirming the status of an individual’s dual citizenship:
There is no adequate process described in the Citizenship Removal Provisions for determining a person's dual national status before they lose their citizenship. The case of Neil Prakash (whose citizenship was stripped under this scheme) illustrates how the Citizenship Removal Provisions can be used to strip Australian citizenship based on the false and unconfirmed presumption that a person is a national of another country. Determinations of dual nationality are inherently complex and difficult, as the crisis over parliamentary eligibility under section 44 of the Constitution proved.
The Human Rights Law Centre also noted:
Australia has the power to determine who its nationals are, however that power is not absolute and is subject to some important restrictions in international law. For example, Australia cannot remove a person's nationality arbitrarily, nor can Australia remove citizenship in circumstances where it would leave a person stateless.
That the provisions may also represent a lack of proportionality was also raised. The HRLC stated that some of the offences that could trigger a revocation of citizenship were not proportionate to the level of offence:
Some triggering and conduct offences are less serious: Perhaps of greatest concern is that the loss of citizenship is triggered by an excessively broad range of offences and conduct, some of which do not demonstrate any significant risk to the Australian community or a repudiation of allegiance to Australia. For example, citizenship loss could be triggered for "possessing things" connected with terrorist acts or intending to coerce or influence the government of a foreign country.
The Law Council of Australia also acknowledged this disproportionality, along with concluding that the grounds upon which citizenship could be revoked were too ambiguous:
The Law Council considers that any amendment to paragraph 35AA(2)(b) should focus on the phrase ‘is opposed to Australia, or to Australia’s interests, values, democratic beliefs, rights or liberties’, which is ambiguous in its application and is lacking in relevant guidance and authority.
The Council proposed that section 35AA(2)(b) should be amended to include the phrasing ‘seriously prejudicial to the vital interests of Australia’ in order to remove the excessively broad remit of the provision. The Council stated that this would assist in mitigating the potential for extreme consequences for lesser conduct, but would not resolve the inherent risk of statelessness involved with the provisions.
The Independent National Security Legislation Monitor (INSLM) also found that section 35 was disproportionate and in need of repeal:
… while I accept that in a particular case fighting for, or service in, a terrorist organisation may be seen as renunciation such that cessation of citizenship is justified in the public interest, s 35 in its current form is neither necessary nor proportionate. Further, the section does not adequately protect individual rights. For those reasons, the current provision should be repealed with retrospective effect.
The INSLM was also dissatisfied with the proportionality of section 33AA with regard to its impact on individuals who had been raised in a declared area since childhood. In the introduction to his report, the INSLM also cited his concerns around how the provisions conflated offences of a most serious nature with behaviour at the lower end of the spectrum.
Challenging a revocation
Many submitters raised concerns that individuals would not have an opportunity to challenge the revocation of their citizenship. While the Department of Home Affairs did note that an individual may be able to seek a judicial review of the basis on which a notice of citizenship cessation is given, in practice such action may not always be possible. Even if such an opportunity should arise, the Law Council of Australia noted that an individual would not necessarily be capable of responding effectively:
The individual concerned may be at a significant disadvantage as the onus of proving this may rest on them and they would presumably not have access to the evidence relied on for the issuing of the notice confirming the loss of citizenship.
The Department of Foreign Affairs and Trade (DFAT) noted that, as is their usual practice, they would not ordinarily provide consular assistance to a non-citizen. DFAT also discussed the problems that could arise when consular assistance was removed and an individual had not been notified of their revoked citizenship:
Where the Minister for Home Affairs has determined that an individual will not be given notice of their Australian citizenship loss, DFAT is unable to advise the individual of their Australian citizenship loss. There are risks that the cessation of consular services, where the individual had previously been receiving them, or the inability for DFAT consular officers to provide services on request, may inadvertently alert an individual to their Australian citizenship loss. These risks are managed through DFAT’s advice to the CLB [Citizenship Loss Board], which informs the recommendations to the Minister for Home Affairs on the provision of notice.
Accordingly, individuals may not have an opportunity to challenge the revocation of their citizenship as they would not have been informed of its removal in the first place, as the Peter McMullin Centre on Statelessness submitted. The centre also stated the disadvantages that individuals might face in attempting to contest a revocation:
Even if a person is notified regarding their revocation, judicial review is nevertheless tightly constrained for a number of related reasons. First, persons deprived of citizenship are likely to be outside Australia; second, judicial review is prohibitively expensive; and finally, the requirements for judicial review are far stricter than merits review.
The INSLM also held similar concerns. The INSLM’s report noted that challenging the initial decision of the Citizenship Review Board via the courts cannot be easily done:
Although the courts can make a declaration that at the relevant time the person was not in fact a dual citizen and thus cannot have lost their (sole) Australian citizenship, the finding by an inter-departmental committee, based on ASIO’s QSA [Qualified Security Assessment], as to the disqualifying conduct of serving or fighting, cannot easily be challenged by the ex-citizen.
A number of submitters raised concerns that the provisions were laws that subjected Australian citizens to differential treatment on the basis of their mono or dual citizenship. The Peter McMullin Centre on Statelessness queried what justification there was for such practices:
If we can find in the context of mono-citizens alternatives to citizenship deprivation, on what basis can the government justify the deprivation of citizenship of dual citizens, especially when the measure risks rendering them stateless?
The Law Council of Australia noted that the ability of these provisions to ‘single out’ dual citizens from other citizens, a point that was expounded on in detail by the HRLC:
Somewhat perversely, the ramifications of citizenship loss only apply to dual nationals, and not Australian mono-nationals who, for instance, have been convicted of exactly the same offence as a dual national. This creates two classes of Australian citizenship where only dual nationals are subject to the harsh ramifications of citizenship loss. This puts the substantive equality between Australians in jeopardy and may institutionalise discriminatory practices.
Professor Kim Rubenstein stated that provisions were not consistent with the democratic principles of a multicultural country where most members have links to other nation states:
I do not think that making all individuals vulnerable to loss of citizenship, ie including the idea that a sole citizen, with an entitlement to apply for another citizenship, would be appropriate. This would not be consistent with our multicultural make up (given the majority of people in the country, save for the Indigenous population) have some links in their family history to another country. Moreover, making someone vulnerable to statelessness in international law is not appropriate for a democratic state that is proud of its commitment to the rule of law, both nationally and internationally.
The INSLM, however, was not persuaded by these concerns and stated his general in-principle support for citizenship revocation provisions:
To be clear, I do not accept the submissions that such laws can never be justified. I do not consider that Australia’s international obligations alter the position provided the Convention on the Rights of the Child and the Convention on the Reduction of Statelessness are complied with, and they otherwise pass muster under the INSLM Act.
Impact on children
Some submitters raised the potential impact that these provisions could have on children. This included the potential failure to protect children to the standard outlined in the United Nations Convention on the Rights of the Child, which Australia has ratified. Save the Children noted how the provisions did not protect children sufficiently:
… the automatic cessation provisions of s33AA and 35 effectively offer no protection to children affected by the cessation of citizenship, and their interests may indeed never be considered under the Act following the automatic cessation of citizenship.
The Law Council of Australia held similar concerns regarding the direct application of the provisions to children, as to whether a child has the capacity to form the necessary intention required by subsection 33AA(3) or to know that his or her conduct is capable of a severing of allegiance with Australia. The Law Council was also concerned about similar issues in relation to individuals who may have insufficient capacity due to mental illness or cognitive impairment. It recommended that both children and people with mental illness or cognitive impairment should be exempt from the operation of sections 33AA and 35.
The INSLM also reported on the extended impact that the revocation of citizenship could have on a family unit abroad, especially in the case of the revocation not being communicated to an individual:
… the problems are compounded by the capacity of the Minister not to give notice of the loss of citizenship: the revokee may well order their life on the basis that they remain a citizen when they are not. Take the possibility of an Australian woman who decided to have another child wrongly thinking the child will be Australian: there will be no technical breach of either the Convention on the Rights of the Child or the Convention on Statelessness, but it would still be highly problematic for mother and child. In any event, there is doubt as to the effectiveness of the provision to deny notice for up to five years as the former citizen will discover their new non-citizen status when they seek new travel documents. In the United Kingdom, former citizens are always notified directly or by next of kin. That should also occur here.
Australia’s duty to prosecute international crime
The Law Council of Australia and HRLC submitted that the citizenship cessation provisions are at risk of not according with Australia’s obligations under the United Nations Security Council Resolution 1566 (2004), which requires member states to cooperate fully to combat terrorism, deny safe haven and bring to justice through prosecution and extradition any person who supports, facilitates, participates or attempts to participate in terrorist acts. Several submitters noted that offenders ought to be returned to Australia, where they can be brought to justice. The Australian Centre for International Justice and the HRLC stated that individuals stripped of Australian citizenship may be subject to torture and inhumane treatment abroad. The INSLM’s view was that:
… it will, on balance, be better to permit a dual Australian citizen who is a terrorist to return to Australia, even perhaps if they cannot be tried here. But I consider there will be at least some cases where removal of Australian citizenship will be justified and be necessary to protect the safety and security of Australia and its people.
The Australian Centre for International Justice also raised that Australia’s failure to return individuals to Australia for prosecution represented a prosecutorial strategy that ‘conveniences domestic counterterrorism efforts only and entrenches the climate of impunity for perpetrators of international crimes’.
The Law Council of Australia noted that citizenship revocation may limit the Crown’s options in prosecuting former citizens for engaging in prescribed conduct:
A person may engage in further conduct which the Crown may wish to bring to a trial and obtain a conviction (such as a different offence prescribed by section 35A or another offence under Commonwealth legislation). It may be that because the person is not a citizen, they cannot be tried for the further offence either because being an Australian citizen is a statutory pre-requisite that must be present in order that a person be viable to be charged, or the fact of not being a citizen attracts some form of constitutional argument or generally creates difficulties with jurisdictional issues in trying the person for the further and potentially more serious offence.
Comparative international measures
The Department of Home Affairs noted that citizenship loss provisions are present in a number of countries, including the majority of Australia’s Five Eyes partners. While the Department’s initial submission did not provide an in-depth analysis of comparable international provisions, the Department provided a substantive supplementary submission. Dr Sangeetha Pillai and Professor George Williams provided an extensive submission that analysed the international use of citizenship revocation provisions in expert detail.
It should be noted that, internationally, such laws have been very little used and that the United Kingdom, Canada and Australia are the only common law countries to have recently re-employed citizenship stripping as a national security device. The United Kingdom and Canada are potential models for changes to Australia’s citizenship cessation, noting that the INSLM has recommended that portions of the provisions be repealed.
Due to their substantial differences in structure and execution, equivalent provisions in the United States are not considered in-depth. Dr Rayner Thwaites noted that such provisions in the United States are not frequently used compared to the United Kingdom and similar jurisdictions, including Australia. At the Committee’s 2 August 2019 hearing, Dr Thwaites discussed the stricter citizenship provisions in the United States, whereby an individual must have shown that they intended to relinquish their American citizenship:
… within the US context, there's a very firmly established philosophy of equality of citizenship such that—this is not me; this is the Supreme Court of the United States—the office holders are also citizens and hold office for a limited time, and it's not for one set of citizens to pronounce on another set of citizens and to banish them from the community unilaterally, which is why they insist that the person by their act has actually shown that they intend to divest themselves of their American citizenship.
The United Kingdom’s citizenship cessations provisions are the most similar to Australia’s regime. The United Kingdom has the right to strip an individual of their citizenship if the Home Secretary is satisfied that the individual could become a national of another country. The United Kingdom will seek to inform an individual of such a decision, but only if contact is practicable.
Between 2002 and 2009, the United Kingdom’s extended laws to revoke citizenship were only used sparingly. Dr Sangeetha Pillai and Professor George Williams submitted that, since the election of the Cameron Government in 2010, there have been 33 cases of denationalisations on security grounds in the United Kingdom and noted:
… the modest use of the citizenship stripping powers, at least prior to 2009, suggests that in a practical sense, the powers were not critical to achieving the UK's national security objectives.
The Department of Home Affairs submitted that there were 104 citizenship revocations on the grounds that such a revocation was ‘conducive to the public good’ in the United Kingdom in 2017, but did not specify how many of the 104 revocations were based on security concerns.
In 2014 the United Kingdom’s Parliament enacted new changes allowing sole British citizens to be stripped of their citizenship. Dr Rayner Thwaites noted that to the United Kingdom’s declaration under Article 8 of the 1961 Convention on the Reduction of Statelessness has enabled them to retain the right to deprive a naturalised British citizen of that status when he or she had conducted him or herself ‘in a manner seriously prejudicial to the vital interests of her Britannic majesty’. The United Kingdom therefore had the capacity to render a person stateless, provided that the relevant Minister was satisfied that the person could later become the citizen of another country. Australia made no such declaration when ratifying the convention, and thus does not have this option available.
However, despite this option being available, the United Kingdom was unable to successfully utilise the provisions in the case of Hilal al-Jedda. The United Kingdom’s Supreme Court ruled in al-Jedda’s favour following the revocation of his citizenship, finding that the revocation had left al-Jedda stateless. While the Home Secretary argued that al-Jedda’s could potentially regain Iraqi citizenship and was thus not stateless, the Supreme Court was not sufficiently convinced of al-Jedda’s capacity to obtain citizenship, noting the deep complexity of the application of the citizenship loss provisions.
Additionally, as with the Canadian provisions, Dr Sangeetha Pillai and Professor George Williams consider the United Kingdom’s citizenship revocation regime to already be covered by existing offences:
A criticism of the 2002 law was that most conduct seriously prejudicial to the vital interests of the UK was already criminalized and penalized through treason offences. The government’s response was that it wanted to retain the power to revoke citizenship even where a criminal conviction was not or could not be secured, for instance, due to a lack of sufficient admissible evidence.
The basis of Canada’s citizenship revocation laws was stricter than Australia’s provisions, with the revocation being dependant on individuals serving in armed forces of a country or individual group that was engaged in armed conflict with Canada. The relevant Canadian Minister, like the United Kingdom model, was required to obtain a judicial declaration that the person engaged in the activity in question and was also required to ensure that they did not authorise any revocation that conflicted with any international human rights instrument regarding statelessness to which Canada is signatory. However, as Dr Sangeetha Pillai and Professor George Williams discussed, the basing of laws on the serving of individuals in hostile armed forces abroad was already covered by other Canadian provisions:
By contrast, the revocation provisions did not seem particularly well-adapted to any security purpose. A major reason for this was the requirement of a criminal conviction before most grounds for citizenship revocation could take effect. While this was an important safeguard in the Canadian law, it arguably weakened any security justifications for citizenship stripping as any security threat posed could be neutralised by criminal sanction.
Dr Rayner Thwaites discussed this issue at the Committee’s 2 August 2019 hearing, explaining how the Canadian citizenship revocation provisions were perceived as partisan legislation, leading to the Canadian opposition committing to repealing the provisions. Ultimately, the Canadian provisions were repealed just three years after enactment, having being utilised to repeal the citizenship of only one individual. Sangeetha Pillai and George Williams noted that this repealing was, like the introduction of the provisions, also largely symbolic:
Interestingly, the decision to repeal this legislation, much like the decision to introduce it, appears to have been underpinned by a symbolic rationale: in this case one that emphasises the security of citizenship as a status, irrespective of the 'deservingness' of each individual citizen.
Regarding the combined United Kingdom and Canadian experiences, Dr Sangeetha Pillai and Professor George Williams found that citizenship revocation provisions were not as useful as hoped in both Canada and the United Kingdom and have, in fact, created negative consequences for the United Kingdom government:
Moreover, the use of the laws in each country shows that they have not, in practice, served as a useful national security device. This conclusion flows in part from the fact that the laws themselves have been so little used, despite the fact their breadth means they could be very broadly applied. In Australia, the laws have only been used once, against an individual whose whereabouts are unknown and who has been reported dead. In Canada, the laws sole use while in force was against an individual who posed no foreseeable security threat because he was serving a sentence of life imprisonment. In the UK, denationalisation laws saw very infrequent use for several years but since 2010 have come to be much more regularly employed. Despite this, documented examples showcase a number of instances in which invocation of the Home Secretary's revocation powers has had insignificant or negative effect. Several of the citizenship stripping cases in the UK showcase protracted and expensive legal battles that can take years to resolve.
Along with the issues discussed above, there was widespread concern among submitters that the Minister’s powers were too broad and the processes of the Citizenship Loss Board were too opaque. The Peter McMullin Centre on Statelessness noted that Australia’s lack of procedural safeguards was an outlier internationally, as most jurisdictions with citizenship revocation powers require a court determination to occur. Concerned by the current state of affairs, the Law Council of Australia proposed an alternative model:
… consideration should be given to a judicial determination model. This would require the court, on the application of the Minister, to make an order for the revocation of citizenship upon making findings of fact as to the conduct that justifies the order being made. The Minister could be permitted to make the application where the Minister is satisfied there is evidence that the person poses a substantial risk to Australia’s security, and after consideration of other relevant factors.
This model would create a requirement for both a court and the Minister to be satisfied that the decision to revoke citizenship will not have the practical effect of rendering a person stateless or subject to indefinite detention. It would also remove the Law Council of Australia’s concern that a Minister may err in their assessment of an individual’s dual citizenship status.
ASIO, however, submitted that a ministerial decision-making model was preferable over the decision-making power resting with the courts, as it gave ASIO and other relevant agencies ‘the flexibility required to utilise citizenship cessation to maximum effect’. The Department of Home Affairs also noted that a ministerial model would be worth consideration. The INSLM conceptually supported a ministerial decision-making model, but proposed an alternate model where the power of review over the Minister’s decisions would sit with the Security Appeals Division of the Administrative Appeals Tribunal:
I have concluded that these provisions do not pass muster under the INSLM Act and should, with some urgency, be repealed with retrospective effect, but be simultaneously replaced by a Ministerial decision-making model (and thus with constitutionally entrenched judicial review), coupled with merits review as to the conduct (s 33AA), fighting or service (s 35) by the Security Appeals Division of the Administrative Appeals Tribunal, and using the special advocate model which now exists for control orders.
The Committee’s view is that the current ‘operation of law’ model, whereby a dual-national’s Australian citizenship is automatically renounced through their actions, should be replaced by a ministerial decision-making model. Such a model would allow the Minister to take into account a broader range of considerations in determining whether to cease an individual’s citizenship and may resolve a number of the issues with the operation of law model discussed in this chapter. The Committee notes that the Government has proposed a Ministerial decision-making model in the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019.
In respect of the notification and reporting requirements under section 51C of the Australian Citizenship Act 2007, the Committee believes that further information should be provided to it, especially information contained in ASIO’s Qualified Security Assessments (QSA). Going forward the Committee expects that, subject to particular sensitives which ASIO can negotiate with the Committee, QSAs will be provided to the Committee (at least when it receives an oral briefing on people who have lost their citizenship).