As discussed in the previous chapter, the citizenship loss and cessation provisions operate in two distinct manners. Sections 33AA (renunciation by conduct) and 35 (participation in a hostile foreign armed force or a declared terrorist organisation) are the ‘operation of law’ conduct provisions. Section 35A is a conviction based provision, dependent upon a conviction for a terrorism-related offence and a decision by the Minister. The two classes of provisions operate in substantively different manners and will be discussed separately.
Conduct based provisions
Sections 33AA and 35 provide that citizens of Australia aged 14 years or over will have renounced and lost their citizenship, or have had their citizenship cease, when they have taken part in the terrorism-related acts as set out within those provisions.
Section 33AA is dependent upon a person renouncing their Australian citizenship via acting inconsistently with their allegiance to Australia by engaging in specified terrorist-related conduct offshore or by leaving Australia before being charged and brought to trial for such conduct.
Section 35 removes citizenship on the basis that an individual served in the armed forces of a country at war with Australia or in the service of a declared terrorist organisation while offshore. Thus far, there have been no citizenship revocations under section 35(1)(b)(i). As the provision is dependent on service in the armed forces of a country at war with Australia, and as Australia has not been at war since the original legislation was enacted in 1949, the provision has never been utilised. The potential for this provision to unintentionally apply to dual nationals who are conscripted abroad has been raised.
Section 35(1)(b)(ii) covers individuals who fight for, or are in the service of, a declared terrorist organisation. Since the provisions came into force, there are only two organisations that have been declared by the Minister under section 35AA: the Islamic State of Iraq and Syria (ISIS) and Jabhat al-Nusra. Section 35AA provides the definition of a declared terrorist organisation, as determined by the Minister and reviewed by the Parliamentary Joint Committee on Intelligence and Security.
Along with Sections 33AA and 35, there is also the supporting provision 35AB, which provides exemptions from the operation of law conduct provisions for Australian law enforcement and intelligence services. 35AB is considered non-controversial and provides, as noted by the Independent National Security Legislation Monitor (INSLM), ‘self-evidently necessary exemptions in uncontroversial terms’.
Automaticity by ‘operation of law’
Sections 33AA and 35 have been referred to as ‘automatic’ or ‘operation of law’ provisions. Under these provisions, citizenship is effectively renounced from the moment conduct takes place, regardless of when it comes to the Minister’s attention. Under these sections, no legal decision is needed or occurs to result in the renunciation and loss of citizenship.
This element of the conduct provisions’ functioning has given rise to much debate, with many submitters raising concerns over the automatic nature of the provisions. Dr Sangeetha Pillai and Professor George Williams recommended that citizenship revocation should not operate automatically, and listed the reasons behind their concerns:
Our reasons are threefold. First, automatic revocation is impractical. It creates confusion and legal uncertainty, obscures judicial review options and creates practical challenges for government agencies. Secondly, there are strong arguments that legislating for automatic citizenship loss is beyond the scope of the Commonwealth’s constitutional powers. Finally, automatic citizenship revocation is an extreme measure that is out of step with citizenship deprivation regimes internationally.
Dr Rayner Thwaites also criticised section 33AA as resting on the
legal fiction that it operates ‘by operation of law’, without any need for a decision by an official. It is a legal fiction, as difficult questions of human judgment are required to determine of the statutory preconditions for deprivation are met.
Liberty Victoria also discussed the concept of such automaticity as a ‘legal fiction’ and raised concerns about the decision-making process associated with the provisions:
The notion that the person renounces their citizenship automatically and the Minister merely ‘notifies’ them is a pernicious legal fiction. It obfuscates the logically necessary decision-making process, and denies basic principles of due process and legal certainty on a matter affecting a person’s fundamental rights and freedoms.
The Law Council of Australia was also concerned that the automaticity of the provisions meant that there was no capacity for a satisfactory mechanism for fact finding and determination to be in place, despite the broad range of conduct and factually variable scenarios that are captured by the conduct provisions.
Along with concerns over where such automaticity sits under the rule of law, the Department of Foreign Affairs (DFAT) noted that the self-executing nature of the provisions were practically operating, in effect, in a way that limited the governments’ options:
The ability of Australia to manage its broader international interests and equities can be affected by the automatic operation of the citizenship loss provisions for individuals who have undertaken terrorist acts outside of Australia. This automaticity does not allow the government to consider all aspects of the national interest, including international interests, before an individual loses their citizenship. This has the potential to create challenges in the management of Australia’s international relationships and interests.
The Department of Home Affairs also noted such problems in its submission, including how such automatic provisions reduced the availability of other mechanisms and could potentially impact on Australia’s ability to prosecute individuals who have had their citizenship stripped. The Australian Security Intelligence Organisation (ASIO) also cited its difficulty with the operation of the provisions, noting:
Under sections 33AA and 35 of the Citizenship Act, citizenship ceases automatically, at the point in time the individual engages in the specified terrorist-related conduct. ASIO is supportive of an alternative model for citizenship cessation where full and thorough consideration can be given to each citizenship cessation case, including having regard to whether ceasing an individual’s Australian citizenship would reduce the threat and protect Australia and its interests from that harm.
The Law Council of Australia stated that the Minister’s lack of discretion was particularly troubling in the case of children and individuals with cognitive impairments. Dr Rayner Thwaites forewarned that this element of the provisions was a likely area for further legal challenge and that the courts were ‘likely to be impatient with arguments that there is no decision’ made under the self-executing provisions.
Several submitters raised concerns around the uncertain constitutionality of these provisions. Professor Kim Rubenstein discussed this concern in detail, noting that the provisions may be taking an overly broad interpretation of the powers granted to the Government under section 51 of the Constitution, with regard to its power to create laws regarding citizenship. Professor Rubenstein suggested that these provisions would need to be brought before the High Court before such ambiguity could be settled.
The Law Council of Australia raised that sections 33AA and 35 effectively impose a punishment where a person engages in prescribed conduct without any mechanism to determine if the conduct which leads to the ‘punishment’ has in fact occurred, a scenario that the High Court has previously ruled to be unconstitutional. The Council stated that the self-executing nature of the provisions may have been acting to avoid the constitutional issues associated with the executive inappropriately applying punitive punishments to individuals:
The manner in which sections 33AA and 35 operate is such that the ‘self-executing’ provisions remove from the Minister the requirement to make a ‘decision’ concerning the loss of citizenship. This avoids the constitutional argument that the Minister is in fact exercising a form of judicial power in revoking the citizenship of a citizen in circumstances where the Minister does not have the power to do so due to the separation of powers set out in Chapter III of the Constitution.
The Law Council of Australia was also concerned that the provisions may lead to what would effectively amount to mandatory immigration detention by the executive, prior to a hearing before a court, should an individual return to Australia following the loss of their citizenship. The Law Council subsequently recommended that, following a conviction from a court, there should be 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.
The INSLM, however, was satisfied that the current provisions are within power and constitutionally valid:
… I am satisfied that the citizenship loss provisions (and the replacement laws I recommend in this report) are supported by the following powers in s 51 of the Constitution:
the power with respect to ‘naturalisation and aliens’ : s 51(xix)
insofar as the provisions act, as they largely do, upon ‘places, persons, matters or things physically external to Australia’, the geographically external aspect of the external affairs power: s 51(xxix)
given the decision in Thomas v Mowbray (2007) 233 CLR 307, the defence power: s 51(vi)
insofar as loss of citizenship would be due to terrorist acts or association, the executive power of the Commonwealth which ‘extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth’ read with the express incidental power in s 51. As Burns v Ransley (1949) 79 CLR 101 identified, this is a source of power to legislate against subversive or seditious conduct.
The role of Citizenship Loss Board
The Citizenship Loss Board (CLB) is an administrative body that is not provided for in the Citizenship Act. Evidence from the Department of Home Affairs outlined the central role of the CLB in providing advice to the Minister in relation to citizenship loss matters. The Department of Home Affairs described the work of the CLB as follows:
The Board advises the Secretary of the Department of Home Affairs and the Minister for Home Affairs in administering the citizenship loss provisions. In doing so, the Board:
considers a range of information in citizenship loss cases, including departmental information, security and intelligence information and legal advice
reviews whether legislative thresholds have been met in citizenship loss cases, including criteria that may inform the Minister’s powers to exempt the person from citizenship loss (such as aspects of prejudice to Australian security, defence, international relations or Australia’s law enforcement operations), and
endorses cases to be progressed to the Minister for Home Affairs through a Ministerial Submission.
The Board does not make decisions. It provides strategic direction and guidance to support implementation of the legislation as it relates to citizenship loss.
A flowchart of the CLB’s processes was provided by the Department in Appendix B to their submission. The Department of Foreign Affairs, a member of the CLB, emphasised that the role of the CLB is to assist the Minister in assessing cases:
The CLB is not a decision-making body and its processes are not enshrined in legislation or regulation. The CLB is an interdepartmental body created to assist in the process of assessment of cases, to ensure relevant agencies have visibility and are able to provide information to inform the submissions that are made to the Minister for Home Affairs.
Many submitters were critical of the way in which the conduct provisions operate and the role of the CLB in their operation. This criticism ranged from the suggestion that no legal decision is made under the conduct provisions and, given that notice of citizenship loss is not mandatory, the ability of the affected person to seek judicial review. Other submitters raised that the threshold for citizenship loss is based on the Minister being satisfied that an individual holds dual citizenship, as opposed to stricter criteria.
Appellate review of administrative decision-making can be either ‘judicial review’ or ‘merits review’. Judicial review tests the legality of the decision and whether the decision-maker/official had the legal power to make it, and made it fairly, without error of law or failure to consider something relevant. This form of review does not re-decide the matter on its merits. ‘Merits review’, by contrast, involves the appellate body ‘standing in the shoes’ of the original decision-maker and re-deciding the matter on its merits.
As the provisions stand, a person who has lost their citizenship can apply to a court to review the Minister's decision to issue the notice formalising citizenship removal or the Minister's decision not to reinstate the person's citizenship. However, due to the automatic nature of the provisions, an individual’s citizenship will have already been revoked before the opportunity arises. Many submitters were concerned that the current automatic provisions left individuals with no practical opportunity to request such judicial review. The Law Council of Australia discussed this in detail:
The opportunity for judicial review may in practice only arise when action is taken consequent upon the loss of citizenship such as the individual being arrested for the purpose of deportation or when the person makes an application for an Australian passport. At this point the person may seek to challenge the basis of their arrest and to prove that they have not in fact ceased to be an Australian citizen as they have not engaged in the conduct that led to the cessation or renunciation of citizenship. 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 Australian National University (ANU) Law Reform and Social Justice Research Hub submitted that an affected person’s ability to seek judicial review around a citizenship renunciation is uncertain. This uncertainty is aggravated by the
fact that the Minister is exempt from providing a mandatory notice, under s 33AA(10), if such a notice may compromise the ‘security, defence or international relations of Australia, or Australian law enforcement operations’ under subsection 12. At what point, in that situation, would a person know that they have a decision that is applying to them to review?
Their submission pointed out that, although subsection 10 states that a person may seek review of the basis on which a notice under this subsection was given in the High Court of Australia under s 75 of the Constitution or in the Federal Court of Australia under s 39B of the Judiciary Act 1903 (Cth), the provision providing for renunciation and loss of citizenship is
nonetheless self-executing and cannot, in and of itself, be reviewed. If the basis on which the notice was given is effectively challenged, it is not sufficiently clear whether the renunciation itself would be revoked or void ab initio.
While the Department of Home Affairs noted that the CLB only provided advice on issues of citizenship loss to the Minister, the Law Council of Australia described the Department’s position that no determination as to the cessation of citizenship is made by the CLB or the Minister as a ‘legal fiction’ that operated to circumvent judicial review. The Law Council of Australia stated:
If the ‘decisions’ in relation to loss of citizenship are to be made by a body such as the Board, its powers should be properly constituted and defined by statute and there should be clarity around the decision making process, including rules for practice and procedure, the manner in which evidence is taken, and the provision for the person concerned to appear and be legally represented before the Board. In the absence of the appearance of the person, a representative could be appointed to protect their interests in such instances. The statutory provisions should also provide for a right of appeal against any decision of the Board and could be subject to review by the Administrative Appeals Tribunal. This Tribunal already has powers of review in relation to other decisions relating to citizenship.
Dr Thwaites described the CLB as an administrative process sitting outside the statute and suggested that the
primary rationale for this is presumably to place an obstacle in the way of judicial review, in the form of an argument that there is no decision under statute to review.
Ultimately, according to Dr Thwaites the ‘device of a self-executing statute is unlikely to be effective in minimising judicial review’ as it does not
prevent review of numerous other decisions that rely on the determination of whether a person is an Australian citizen. If, for example, an application for an Australian passport is refused on the basis that a person is no longer an Australian citizen, a challenge to the passport decision will ventilate the same issues.
Merits review is the process by which a person or body—other than the primary decision-maker—reconsiders the facts, law and policy aspects of the original decision.
The Department of Home Affairs noted in its submission that the process of citizenship revocation was subject to oversight:
The administrative process which facilitates citizenship loss is subject to multiple safeguards. These safeguards come in the form of independent review or oversight, and public reporting obligations. They cover various points of the administrative process, from the making of a security assessment regarding an individual to the Minister’s decision to rescind notice of and exempt a person from citizenship cessation.
The Department further cited the oversight offered by the Parliamentary Joint Committee on Intelligence and Security regarding declared terrorist organisations under section 35AA, the potential for other reviews and the requirement for the Minister to report to the Parliament every six months.
The Law Council of Australia suggested reworking of the Minister’s decision-making process for declaring an organisation as a terrorist organisation that better allows for merits review. The wording of section 35AA(2)(b) indicates that before such a declaration can be made the Minister must be satisfied on reasonable grounds that the organisation
is opposed to Australia, or to Australia’s interests, values, democratic beliefs, rights or liberties, so that if a person were to fight for or be in the service of such an organisation the person would be acting inconsistently with their allegiance to Australia.
The Law Council of Australia set out the Australian citizenship pledge and the preamble of the Citizenship Act as legislative sources that might provide guidance in this area, but also pointed out that there
does not appear to be any common law consideration or interpretation given to the phrase ‘Australia’s interests, values, democratic beliefs, rights or liberties’. Furthermore, the wording ‘interests, values, democratic beliefs, rights or liberties’ does not appear to be found in international instruments or in the domestic policies of comparable jurisdictions.
After pointing out that the UN Convention on the Reduction of Statelessness allows for a loss of nationality and the British Nationality Act 1981 (UK) have a number of provisions that deal with terrorism-related deprivation of citizenship, the Council outlined a proposed amendment to the section:
In order to provide greater clarity that a person’s allegiance to Australia has been repudiated, the Law Council considers that the statute should be explicit that the declared terrorist organisation for the purpose of section 35AA must be an organisation which is clearly against Australia. To this end, the Law Council considers that paragraph 35AA(2)(b) should be amended to include the phrase, ‘seriously prejudicial to the vital interests of Australia’ so that it reads:
(b) is seriously prejudicial to the vital interests of Australia, so that if a person were to fight for or be in the service of such an organisation the person would be acting inconsistently with their allegiance to Australia.
The Law Council of Australia was further concerned that the Commonwealth does not bear any stated onus of proof to establish the factual basis for loss of citizenship under sections 33AA and 35. The Council also stated that there was not currently merits review within the provisions to an appropriate standard more generally:
If sections 33AA and 35 are to be used in circumstances where the long-standing judicial procedures for testing and challenging evidence in criminal trials are not applied, the Law Council is concerned that this may lead to instances of error. Innocent people may mistakenly be deemed to have renounced and ceased their Australian citizenship. For this reason the Law Council’s primary position is that loss of citizenship should only occur following conviction by a court.
Conviction based provisions
Unlike conduct based provisions, section 35A allows that the Minister may determine, in writing, that a person ceases to be an Australian citizen because they have been convicted of a specified terrorism-related offence and sentenced to at least six years of imprisonment or to periods of imprisonment that total at least six years. Offenders sentenced between 12 December 2005 and 11 December 2015 must have received a ten-year sentence of imprisonment.
Regarding section 35A, the Department of Home Affairs noted that decisions by the Minister to subsequently revoke citizenship following a conviction for a terrorism-related offence or offences were discretionary and based on the public interest:
Under section 35A, the Minister’s discretion to cease the Australian citizenship of a person convicted of a terrorism offence is safeguarded by an allegiance and public interest test. The Minister must be satisfied that the conduct of the person demonstrates a repudiation of their allegiance to Australia and it is not in the public interest for the person to remain an Australian citizen. In considering the public interest, the Minister would take into account the individual circumstances of the case, such as the age of the person and the severity of their conduct.
Significantly, the Department noted that no individuals have yet lost their citizenship under section 35A:
To date, no individual’s Australian citizenship has ceased or progressed to the Minister for consideration in respect of section 35A of the Citizenship Act.
As a formal decision is made and the removal of citizenship is determined on a pre-existing conviction, this section lacks many of issues associated with the conduct provisions. However, it has been noted by some submitters that the domestic criminal law may sufficiently cover this area. Additionally, the ANU Law Reform and Social Justice Research Hub raised that the Minister ought to be ‘satisfied on reasonable grounds’, as opposed to simply ‘satisfied’ that the conduct of the person constitutes a repudiation of allegiance to Australia.
The Executive Council of Australia Jewry also suggested that the Minister ought not to reply on conviction alone in order to be satisfied that the convicted person has repudiated his or her allegiance to Australia, but instead ought to arrive at such a conclusion via an assessment of all the relevant circumstances.
Dr Sangeetha Pillai and Professor George Williams raised their in-principle concern that 35A operates retrospectively:
Currently, s 35A enables a person to be stripped of their Australian citizenship on the basis of a conviction recorded prior to the commencement of the Allegiance to Australia Act 2015. We do not believe that citizenship revocation should be possible in such circumstances. As we said in our 2015 submission, one of the most important aspects of the rule of law is that a person is entitled to act in accordance with the law at the time that they committed their actions. No penalty, including a loss of citizenship, should apply in respect of conduct that was not subject to a penalty at the time it was committed. This is a long recognised and important principle that lies at the heart of Australian democracy, and the relationship between the state and citizen. Acting retrospectively in this case would be wrong in principle and create a new precedent that might do long term damage to Australia’s system of government.
The Human Rights Law Centre (HRLC) stated that it perceived the retrospective nature of section 35A as offending common law principles:
Citizenship is a fundamental right. It is a basic presumption of the common law that legislation limiting fundamental rights should not apply retrospectively. People should be able to know the extent of potential liability arising from conduct at the time the conduct is engaged in. In addition to being contrary to fundamental human rights principles, this is contrary to everyone's right to have no heavier criminal penalty imposed than existed when the offence was committed. The common law presumption against retrospectivity is available to citizens and non-citizens alike.
The Law Council of Australia acknowledged that it was within the Parliament’s remit to enact retrospective laws, but noted its objections to retrospectivity in the case of these provisions:
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 conduct warranting cessation at the time that the person 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.
The INSLM, however, was comfortable with the current operation of section 35A and its viability under the Independent National Security Legislation Monitor Act 2010. The review noted:
Turning to s 35A, I conclude that the law is necessary, proportionate, and contains appropriate safeguards for protecting the rights of individuals.
The INSLM further stated his support for section 35A:
Those factors, combined with the rights of judicial review under the Constitution and the Judiciary Act, also provide ‘appropriate safeguards for protecting the rights of individuals.’ Based on the analysis above, I therefore do not recommend repeal or amendment of s 35A and any cognate provisions on which s 35A depends.
The current terrorism-related citizenship loss provisions were included in the Australian Citizenship Act as a response to the threat that foreign terrorist fighters presented to Australia and its interests. Many submitters, Government and non-Government alike, raised concerns about the ‘automatic’ nature of the provisions. The Committee shares those concerns and notes that, as the conduct provisions stand, the Minister’s role is effectively limited to restoring a person’s citizenship after it has been lost or exempting a person from the effect of those provisions.