2.1
The Committee has considered a range of material as part of its inquiry, including submissions from groups and individuals and evidence from witnesses at the public hearing. The Committee has also taken into account the Independent National Security Legislation Monitor’s (INSLM) Report to the Attorney-General: Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 (INSLM Report).
2.2
In addition, where necessary, the Committee has also taken into account its previous Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Advisory Report on the Allegiance to Australia Bill) that included examination of section 35A of the Australian Citizenship Act 2007 (the Act).
2.3
The threshold question which submitters have addressed is whether or not citizenship loss is an appropriate response to the terrorist threat Australia faces. This question was addressed by the government, the INSLM and many submitters. Before turning to substantive arguments around the Bill itself discussions around this threshold question are set out below.
General concerns around citizenship loss
2.4
Clearly, in introducing this Bill to the Parliament the Government is satisfied that, in some circumstances, loss of citizenship is an appropriate response to the terrorist threat Australia faces. Central to this question is the current threat environment which was set out by the Australian Security Intelligence Organisation (ASIO).
2.5
The Explanatory Memorandum states that cessation of citizenship
is a significant consequence that can be applied in circumstances where, a person, through their own conduct, demonstrates a repudiation of their allegiance to Australia. Cessation of a person’s formal membership of the Australian community is appropriate to reduce the possibility of a person engaging in acts or further acts that harm the Australian community, and to protect the integrity of the Australian citizenship framework by limiting membership of the community to those who uphold Australian values.
2.6
ASIO informed the Committee that the ‘national terrorism threat level for Australia remains PROBABLE’ and that they assessed that
the principal source of the terrorist threat remains Sunni Islamist extremism, emanating primarily from small groups and individuals inspired, directed or encouraged by extremist groups overseas. However, individuals motivated by other forms of extremism and ideology are also present onshore.
2.7
ASIO provided additional information in relation to ‘Australians involvement in the Syria–Iraq conflict’ and ‘The threat posed by Australians involved in the Syria–Iraq conflict’.
2.8
In relation to ‘Australians involvement in the Syria–Iraq conflict’ ASIO explained that since 2012 around 230 Australians (or former Australians) have travelled to Syria or Iraq to fight with or support groups involved in the conflict and that they considered
attempted travel by Australians to Syria or Iraq to engage in politically motivated violence has significantly reduced. However, ASIO assesses that individuals will continue to seek to travel to conflict zones in support of extremist groups.
2.9
In relation to ‘The threat posed by Australians involved in the Syria–Iraq conflict’ ASIO stated that:
The greatest threat is likely to emanate from individuals who have occupied leadership, training or logistical support roles and engaged in combat in support of Islamist extremist groups in Syria or Iraq. In addition, individuals are likely to hold a position of greater standing among Australia-based Islamist extremists. There is potential they could use this to radicalise and recruit others, providing them with access to networks they built while in Syria or Iraq.
Many of the children are likely to have been exposed to violence and extremist ideologies through a range of vectors. Some vectors may serve as a direct conduit for involvement with Islamist extremist groups, and others may help to frame the child’s world view over the longer term. However, the specific experiences of individual children will vary based on their age, gender, location and the group their parent/s are affiliated with.
2.10
In his report, the INSLM set out the threat environment with particular emphasis on Australians travelling to Syria and Iraq as follows:
Between 2014 and 2018, large numbers of foreign fighters and their families from both Australia and other countries travelled to Syria and Iraq. Although many have died, ISIL has produced a large, now widely dispersed, radicalised, highly trained diaspora of actual or potential terrorists, many of whom remain with their supporters and dependants including children, and most of whom remain outside of their countries of citizenship. Although ISIL’s so-called ‘Caliphate’ is now reduced to effective territorial control of parts of refugee camps, it remains a significant source of concern.
2.11
The Australian Federal Police (AFP) characterised the citizenship cessation provisions as a
treatment mechanism that sits alongside a number of legislative and other measures to assist in addressing the risk of terrorism.
2.12
Contrary to the views that citizenship cessation is an appropriate measure to use in relation to the terrorist threat facing Australian many submitters were of the view that citizenship cessation was not appropriate to be used in this way.
2.13
Professor Kim Rubenstein whilst supporting a multi-faceted approach to countering threats to national security firmly stated that it was her opinion that such an approach should not include using the Citizenship Act. Professor Rubenstein explained that this was her view because
the status of citizenship in a democratic society should not be treated as a tool of punishment or protection from threats to society. Citizenship, in contrast to the concept of being a ‘subject’ - a status that Australians held solely until 1949 – reflects a move from being ‘subject’ to the power of the Executive towards being subject to the rule of law in the same way as members of the Executive are subject to the rule of law – ie it moves to a position of an equality of citizenship or membership in a democratic society.
2.14
Dr Sangeetha Pillai and Professor George Williams AO pointed to the Counter Terrorism (Temporary Exclusion Orders) Act 2019 as being one of a range of mechanisms within Australia’s anti-terror toolkit that allows for
the efficient management of these threats, while avoiding the negative security and law enforcement consequences of citizenship stripping.
2.15
Dr Isaac Kfir and Dr John Coyne submitted that citizenship revocation provides no deterrent stating that:
There is no publicly available evidence to suggest that any of those who sought to become foreign terrorist fighters considered citizenship revocation as a deterrence. In fact, there is evidence of numerous ISIL recruits burning their passports to highlight their commitment to ISIL/al-Qaeda.
2.16
Dr Isaac Kfir and Dr John Coyne also argued that terrorism citizenship loss provisions ‘unintentionally support’ the violent extremist narrative of an in-group and an out-group stating that:
If a person’s citizenship can be cancelled, then surely their citizenship is worth ‘less than’ that of those born in Australia. These circumstances can be easily crafted into a narrative that will resonate with those who are already feeling like they are not part of Australian society. So, while the provisions may mitigate the risk from one terrorist, the act itself may contribute to the radicalisation of many more Australians.
2.17
Save the Children expressed concerns about the changes to the threshold for evaluating an individual’s dual citizenship status and the expansion of the Minister’s powers stating that the Bill
could lead to children losing their citizenship by way of Ministerial determination in the same way as adults and children currently can have their citizenship revoked, potentially leading to children becoming effectively stateless. This could happen by virtue of the subjective satisfaction of the Minister as outlined in the proposed ss36B(2) and 36D(2) of the Bill. Children are also impacted if their parents are subject to a citizenship cessation. The statement of compatibility with human rights states that “cessation of a parent’s Australian citizenship under these provisions does not result in the cessation of the child’s Australian citizenship”. If the citizenship of a child’s parent is revoked in these circumstances, then the child is left with an invidious choice: either remain with their parents, stripped of the Australian citizenship, in a war zone; or try to assert their citizenship in Australia and leave their parents behind.
2.18
Further discussions on the effectiveness and implications of citizenship loss are contained in part one of this report covering the Committee’s statutory review.
Concerns raised about the Bill
2.19
As part of its inquiry, the Committee has identified the following key issues relating to the Bill:
Citizenship cessation based on conduct;
Citizenship cessation based on certain convictions;
The public interest test; and
2.20
These are considered below, along with the Committee’s comment and recommendations. A detailed flowchart of the operation of cessation of citizenship is provided as an appendix to the Department of Home Affairs’ submission and is reproduced in Appendix E of this report.
2.21
The Committee notes that submitters’ constitutional objections to this Bill were discussed in their submissions in relation to this Bill, however these issues were examined extensively in the Committee’s statutory review in part one of this report.
Review mechanisms
Judicial review
2.22
Review by a court is called judicial review. It 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. It doesn’t re-decide the matter on its merits.
2.23
With a move from an operation of law model to a ministerial decision making model the ability for a person affected by a decision under the Bill to seek judicial review is expanded. Those submitters who commented on judicial review were in support of this general, in their view, improvement to the citizenship cessation model.
2.24
The Castan Centre for Human Rights Law opined that the judicial review provided for in the Bill is limited and pointed out that:
A reasonable, yet erroneous determination that a person was a dual citizen, the consequence of which may render a person stateless, is not subject to review given that the Bill does not require the Minister to be satisfied as a matter of fact that a person is not a national or citizen of any other country.
Merits review
2.25
Neither the Bill’s Explanatory Memorandum, nor the Department’s submission, deal with the issue of merits review.
2.26
Merits review, 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, was discussed by a number of submitters.
2.27
Merits review, according to the INSLM, should be available in relation to a decision by the Minister to remove citizenship based on conduct. The INSLM, in his report stated that:
There is presently at least some merits review of the QSA in the Security Appeals Division (SAD) of the AAT. Consistent with the approach in the Migration Act, it is not appropriate for the Tribunal to review a decision made in the Minister’s personal capacity (who is responsible to Parliament) in relation to the public interest. However, there should be merits review in the SAD as to whether there could have been or is reasonable satisfaction as to the existence of the requisite conduct for citizenship loss. That would replace any right of challenge to the QSA (challenge of which would therefore be redundant). In order to provide at least some ‘equality of arms’ in the AAT, the special advocate legislation now in the National Security Information (Civil and Criminal Information) Act 2004 in relation to control orders would be extended to this process.
2.28
In discussing merits review, the Australian Human Rights Commission first pointed to the Administrative Review Council’s 1999 report ‘What decisions should be subject to merit review?’ which set out the following three principles to guide what decisions should be subject to merits review:
as a matter of principle an administrative decision that will ‘affect the interests of a person’ should be subject to merits review
the fact that a decision-making power involves matters of national sovereignty, such as the question of who is admitted to enter the country, does not, alone, mean that decisions made under the power should be excluded from review
a decision is not inappropriate for merits review merely because that decision may also be the subject of judicial review.
2.29
The Commission noted that these factors must be balanced against the argument that
decisions of high political content including those relating to national security, and particularly decisions of this kind made personally by a Minister, may justify excluding merits review.
2.30
After a discussion of the INSLM’s report and balancing the issues referred to above the Commission came to the conclusion that the Administrative Appeal Tribunal should be able to consider whether the Minister could have been reasonably satisfied that:
the relevant conduct demonstrates that the person has repudiated their allegiance to Australia, and
it would be contrary to the public interest for the person to remain an Australian citizen, having regard to the factors set out in s 36E.
2.31
The Castan Centre for Human Rights Law agreed with the Commission.
2.32
Dr Rayner Thwaites although welcoming the move from a operation of law model to a ministerial decision model, criticised the fact that the
Bill, however, decouples this shift from the merits review proposals contained in the INSLM ‘Alternate Model’. As it result, the proposed Bill effects the shift to the ‘ministerial decision’ model without making the deprivation power subject to much needed ‘meaningful review’.
2.33
Dr Thwaites stated that the Bill
ignores the substance and the detail of the INSLM’s recommendations on review of the Minister’s powers and accountability for the exercise of those powers. This conveys an impatience with, and a misunderstanding of the importance of, limits and accountability on executive power.
2.34
On merits review Dr Thwaites concluded that:
The government has offered no justification for relying on judicial review alone as a means of legal accountability. No reason has been offered as to why Australia could not make provision for a right of appeal from a deprivation decision to a tribunal, and from there through the courts. Provision for an appeals process, appropriately designed, would be more commensurate with the seriousness of the decisions being made than the current exclusive reliance on judicial review.
2.35
The Law Council of Australia agreed with the broad arguments set out above and recommended that:
A decision of the Minister to deprive a person of their Australian citizenship should be subject to merits review, as recommended by the INSLM.
2.36
When questioned as to why the Bill had not incorporated the INSLM’s recommendation on merits review the Departmental stated that:
the INSLM didn't recommend merits review in a pervasive way in relation to all considerations. It was quite limited to one element of the decision-making of the minister, and that was the conduct and as to whether that conduct was sufficiently evidenced to the satisfaction required. That was the limited scope. Why that has not been picked up in the bill, in terms of the government, is that we say this model provides sufficient review opportunities.
2.37
In addition, ASIO at the public hearing, pointed out that there
is merits review of ASIO's security assessment where the decision relies on a security assessment. Our security assessments are always appellable in the AAT.
Statelessness
2.38
Under Article 15 of the Universal Declaration of Human Rights, every individual has a right to a nationality. Australia is a State Party to the 1954 Convention relating to the Status of Stateless Persons (the 1954 Convention), and the 1961 Convention on the Reduction of Statelessness (the Statelessness Convention). The United Nations High Commissioner for Refugees (UNHCR) explained that the Statelessness Convention’s purpose
is to prevent and reduce statelessness, thereby guaranteeing every individual’s right to a nationality. Consequently, Australia has an obligation to take measures to avoid statelessness.
2.39
Current sections 33AA(1), 35(1)(a) and 35A(1)(c) permits a person’s Australian citizenship to be removed if, among other things, ‘the person is a national or citizen of a country other than Australia at the time when the Minister makes the determination’.
2.40
Proposed sections 36B(2) and 36D(2) have the effect to change the question of whether a person would be rendered stateless from a question of fact to a question of the subjective ‘satisfaction’ of the Minister.
2.41
In relation to protections against statelessness the Department of Home Affairs stated that:
In accordance with Australia's international obligations, the Bill retains provisions, in subsections 36B(2) and 36D(2), that the Minister must not make a determination ceasing a person’s citizenship if the Minister is satisfied that to do so would render the person stateless. As an additional safeguard, the Bill includes a provision whereby if a court finds the person was not a national or citizen of another country at the time of the determination, their citizenship is taken never to have ceased.
2.42
Submitters raised concerns that the proposed new powers under proposed sections 36B(2) and 36D(2) of the Bill risk contravening Australia’s obligations under the Statelessness Convention. In particular, submitters noted that the amendment to allow for citizenship deprivation in cases where the Minister is satisfied that the citizen concerned would not, through revocation, ‘become a person who is not a national or citizen of any country’, may lead to a person becoming stateless.
2.43
The Australian Human Rights Commission raised a number of concerns with the Bill’s threshold for removing a person’s citizenship. The Commission was concerned that the Bill:
removes the need for a person to be a national or citizen of country other than Australia, as a precondition that enlivens the ability of the Minister to exercise the power to remove a person’s citizenship. A requirement that a decision maker be reasonably satisfied of a particular matter is different, and a weaker protection, from a requirement that the particular matter actually exists; and
would lower the intensity of available judicial review. Currently, the Act makes the question whether a person is a national or citizen of another country a jurisdictional fact. This means that a court in judicial review can receive evidence of whether the individual in question is indeed a dual citizen.
2.44
In relation to the first point the Commission stated that
the current test requires that a person is a dual citizen. The new proposed test would only require the Minister to reach a state of satisfaction that the person would not become stateless, acting reasonably. This provides for less rigorous protection, as the Minister must only be satisfied that an event will not occur (a subjective judgment in the negative), rather than needing to establish the fact of a person’s dual citizenship (a positive condition).
2.45
In relation to the second point the Commission submitted that
the Bill would reduce the capacity of a court to correct this error, because the court would only be able to review the reasonableness of the Minister’s satisfaction that a person would not become stateless. If the Minister acts reasonably, but is still mistaken, the Court may be less able to intervene and the individual could be rendered stateless.
2.46
The Commission submitted that they were ‘not convinced’ that the revocation provisions in subsection 36H(3)(a)(i) and the automatic revocation provisions in subsection 36K(1)(c) provide sufficient safeguards to the risk of statelessness described above. The Commission submitted that:
The first safeguard depends on the Minister becoming aware that they have made an error and is also couched in the language of Ministerial satisfaction. The second safeguard depends on a person rendered stateless being able to effectively access a federal court in Australia.
2.47
The UNHCR point out that these avenues of appeal
would appear to shift the onus onto the individual to establish the absence of a particular nationality or citizenship following cessation of their Australian citizenship
2.48
In addition the UNHCR expanded upon and explained some of the difficulties someone might have in accessing such avenues of appeal:
An individual may experience significant difficulties seeking clarification of their nationality status with the competent authorities of other countries, particularly in the absence of any documentary proof. Children, especially unaccompanied children, may face acute challenges in this respect. Such enquiries may be met either with silence or a refusal to respond. Alternatively, a competent authority may issue a pro forma response which might suggest that the authority has not examined the particular circumstances of an individual’s position.
2.49
In conclusion the Commission stated that it
considers that the current threshold is an appropriate test to meet, given the severe consequences. It provides stronger legislative protection against statelessness, by increasing the likelihood that a correct decision will be made as to the citizenship status of a relevant person, by virtue of the obligations on the Minister in decision making and the intensity of available judicial review. This is all the more important if the Bill is not amended to include independent merits review.
2.50
Further, taking an international law perspective, Dr Rayner Thwaites stated that:
International law requires that, at the moment of deprivation of citizenship, a person is not rendered stateless. It does not allow for the much looser requirement, contemplated by the proposed Bill, that a person not ‘become’, after some unspecified interval of time, stateless. Further, whether a person is rendered stateless is a matter of fact and law, independent of the Minister’s opinion or ‘satisfaction’.
2.51
As seen in processes that the parliament went through in recent years under section 44 of the Australian Constitution there are clear difficulties where , as submitters suggest, the government should be required to determine, or confirm with the second country, that the person does indeed hold that citizenship. The Committee was interested to hear the government's view on this matter as to why they do not adopt that process through the decision-making model on dual citizenship in the Bill.
2.52
In answer to this the Department sought to assure the Committee that the ‘wealth of information’ held by the Department on ‘people as they apply for visas and for citizenship’ are at the Department’s
disposal to help inform the advice that we provide to the minister around dual citizenship.
2.53
In addition the Department stated that
even under the current model it's done on a case-by-case basis. It's not as if decisions are made in isolation of approaching other governments in each and every circumstance. It will depend on what needs to be established and how it can be established.
And that
upon revocation application, there is the safeguard that the minister must revoke if information is such that his satisfaction can't be maintained. So there's the opportunity, through that second limb, to further consider if new material comes to light, as well as the declaration of a court who might provide declaratory relief.
2.54
Further to the above the Department set out in some detail what would and wouldn’t constitute satisfaction for the Minister’s decision including the options available, by way of judicial review, open to person subject to removal of their citizenship.
If the person was going to be the subject of a decision and they were only eligible for a second citizenship, the minister wouldn't be able to have that satisfaction. In making the decision, if the person was to immediately become stateless, that would be enough for the minister not to be able to have that satisfaction. That satisfaction has to be reasonable and based on reasonable material. It is the subject of judicial review at that point in time. It is then able to be tested through the revocation process, where the person can make submissions and present material in a way that is procedurally fair. It then has to again be decided. It is a management decision to consider the revocation. That is also judicially reviewable. What is also available is the safeguard in the act that says that, if a court finds that the person is not a dual citizen, the effect is taken never to have occurred. So there is that safeguard. In addition to the 'reasonableness' of the satisfaction under judicial review, there is the ability for declaratory relief; a person could seek that a court declare that they were not a dual citizen at the time of the decision. So I think there are a number of things that protect from the outcome that this decision will be made in a whimsical way, or on insufficient material, such that the person would be rendered stateless.
Citizenship cessation based on conduct
2.55
Proposed section 36B provides that the Minister can remove a person’s Australian citizenship if (among other things), the Minister is satisfied that they have engaged in a range of specified conduct. The conduct is largely described in the same terms as certain offences in the Criminal Code. A number of submitters were opposed to the conduct provisions in full but, additionally, engaged with the provisions as drafted and raised concerns around this provision of the Bill.
2.56
In addition to the lack of merits review discussed above the Law Council pointed out that the requirement for conduct to be accompanied by specified intent is not reproduced in proposed section 36B. Instead, proposed paragraph 36B(1)(b) requires the Minister to be satisfied that the conduct demonstrates that the person has repudiated their allegiance to Australia.
2.57
In relation to this the Law Council stated that
the requirement for intention as well as conduct is necessary to justify the significant step of stripping a person of citizenship, particularly where it is being done in the absence of a person being convicted in a court of a criminal offence. A criminal conviction for terrorism related offending will require the proof of the relevant fault element as well as the physical element. Consideration of the element of intention should occur before the Minister can make a decision as to the repudiation of allegiance to Australia.
2.58
In addition the Law Council noted that, contrary to the recommendation of the INSLM that the minister be ‘reasonably satisfied’ that the conduct exists, proposed section 36B only requires that the Minister be satisfied. The Law Council therefore recommended that proposed subsection 36B should be amended to require the Minister to be ‘reasonably satisfied’ of the matters listed at proposed subsection 36B(1).
Citizenship cessation based on certain convictions
2.59
The Bill provides that proposed subsection 36D applies in relation to a conviction of a person for a specified terrorism offence from 29 May 2003 onwards if the period or periods of imprisonment totals at least 3 years. In practice this lowers the previous threshold from 6 years for conviction from 12 December 2015 to present and from 10 years for convictions for convictions from 12 December 2005 to 12 December 2015.
2.60
Proposed subsection 36D is intended to replace existing section 35A, permitting the Minister to make a determination for the cessation of citizenship where the person has been convicted of one or more terrorism-related offences. The prescribed offences listed in proposed subsection 36D(5) are the same as those listed in the current paragraph 35A(1)(a).
2.61
As set out in the Committee’s statutory review, when discussing section 35A the INSLM concluded that the provisions contained in section 35A were ‘necessary, proportionate,’ and contained ‘appropriate safeguards for protecting the rights of individuals.’
2.62
In relation to proposed section 36D the Explanatory Memorandum explains that
making a citizenship cessation determination following conviction does not amount to an additional punishment for an offence for which a person has already been convicted or acquitted. Rather than being a punitive measure, this provision, and its retrospective application, provides further administrative options to manage offenders who continue to pose a threat to the community. Section 36D does not create a new criminal offence; rather, it allows for the imposition of an administrative consequence at the Minister’s discretion. When doing so, the Minister must be satisfied it is not in the public interest for the individual to remain an Australia citizen, having regard to a number of factors.
2.63
A number of submitters raised concerns around the conviction based cessation provisions. All expressed concerns about the lowering of the threshold to a sentence of imprisonment for a period of at least 3 years, or periods that total 3 years, for one of the terrorism-related offences specified in proposed subsection 36D(5).
2.64
Whilst acknowledging that the Minister is required to be satisfied that the conduct to which the conviction relates ‘demonstrated that the person has repudiated their allegiance to Australia’ and in accordance with proposed paragraph 36E(2)(b), the Minister must have regard to the ‘severity of the conduct that was the basis of the conviction or convictions, and the sentence or sentences to which the determination relates’. The Law Council maintained that
removing the six-year sentencing limit would allow cessation of citizenship on account of low level offending. In some jurisdictions, such as New South Wales, for example, offences carrying a three year imprisonment penalty, are not considered to be serious indictable offences and are dealt with to finality in the Local Court. Hence, it appears disproportionate that a person could lose citizenship for an offence that carries an imprisonment term that for those offences with equivalent maximum penalties would not be considered a serious indictable offence in an Australian jurisdiction.
2.65
In addition the Law Council raised a concern around the operation of proposed subparagraph 36D(6)(b)(ii). The Law Council stated that the
effect of this provision will be that even where a person was sentenced to less than three years imprisonment for an offence listed in proposed subsection 36D(5), where that sentence is part of an aggregate sentence with other offences, they can still be subject to a Ministerial cessation of citizenship determination. For this reason, the Law Council considers that subparagraph 36D(6)(b)(ii) should be removed.
2.66
The Explanatory Memorandum sets out the rationale for this provision explaining that:
a person may be convicted of providing support to a terrorist organisation pursuant to section 102.7 of the Criminal Code (which is specified in new subsection 36D(5), as well as threatening a Commonwealth official (which is not an offence specified in new subsection 36D(5)). The person receives a total sentence of imprisonment of 8 years for both offences. That is, it is unclear if only a particular part of that sentence relates to providing support to a terrorist organisation. It follows that new section 36D would apply to the person, as the person has received a total sentence of imprisonment of 8 years imposed in respect of an offence specified in new subsection 36D(5).
However, if the person were to receive separate sentences for each offence, for example a sentence of imprisonment of 2 years for providing support to a terrorist organisation, and a 7 year sentence of imprisonment for threatening a Commonwealth official, new section 36D(5) would not apply. This is because the person received a separate sentence of 2 years for providing support to a terrorist organisation and the offence of threatening a Commonwealth official is not specified in new subsection 36D(5).
The public interest test
2.67
A number of submitters engaged with the public interest test contained in proposed section 36E of the Bill. The Law Council submitted that additional criteria should be added to paragraph 36E(2) to include a requirement that the Minister have regard to whether the person has demonstrated they have successfully achieved (or are likely to achieve) deradicalisation and rehabilitation as well as whether the person has dependents in Australia.
2.68
In addition the Law Council stated that if
the person has dependent children in Australia, consideration ought to be given to the rights of those children in any determination to be made in relation to the cessation of citizenship for their parent or primary caregiver.
2.69
The Australian Human Rights Commission referred to the above issues under the rubric of a person’s connection to Australia stating that:
Circumstances may arise where a person has a strong connection to Australia, for example where they were born in Australia, have lived in Australia for a long period and have dependent children or other family who are Australian citizens.
2.70
In addition the Commission stated that proposed section 36E(2) does not
expressly require consideration of the practical ability of a person to enter and reside in the country of which they may be a national or citizen. This is a different inquiry to a person’s potential other citizenship as a matter of law. Rather, it would require consideration of diplomatic, pragmatic and other considerations. For example, the other country may disagree that the person is a citizen and/or refuse to issue a passport, which would effectively render them stateless.
2.71
Two submitters, Prosecute; Don’t Perpetrate and the Australian Centre for International Justice (ACIJ) saw Australia’s obligation to prosecute international crime as a significant public interest and were critical of the concept of citizenship revocation as, in the words of the ACIJ, impacts on ‘Australia’s opportunity and responsibility to prosecute its own citizens for international crimes.’
2.72
Both submitters referred to Australia’s obligations to prosecute international crimes with Prosecute; Don’t Perpetrate criticising the Bill on the grounds that it
doesn’t include consideration of Australia’s obligation to investigate and prosecute war crimes, crimes against humanity and genocide.
2.73
The ACIJ were critical of the Bill because, in their view it preferences a ‘prosecutorial strategy that conveniences terrorism charges’ and that the
revocation of citizenship as a result of section 35A which is being proposed to be replaced with s 36D, following conviction of terrorism related offences only without significant efforts to pursue prosecutions for international crimes where there is strong indication that such crimes were committed, risks misrepresenting the potential involvement of international crimes of the perpetrators. It represents a prosecutorial strategy that conveniences domestic counterterrorism efforts only and entrenches the climate of impunity for perpetrators of international crimes.
2.74
It was made clear to the Committee that these two submitters want Australia (or appropriate authorities) to arrest and prosecute people who have committed international crimes such as the crime of sexual servitude, committed against Yazidi women. When questioned about the real demand in the Australian community to not be exposed to the risk these people engender along with the difficulties of getting a conviction in Australia, Ms Rawan Arraf of the ACIJ stated that:
It really requires the political will of the government and the investigative and prosecutorial strategy of the authorities and the agencies involved. I can point to the example of the brilliant MH17 investigation, for which Australia is a key part of the five-member team. Australia provided a significant amount of resources and AFP personnel to this investigation, which is essentially looking at international humanitarian law violations. This is an example where Australia has shown it is ready and willing to undertake investigations into international crimes offences, and Australia should be looking at broadening that commitment to perhaps having a more permanent unit within the AFP that's specifically targeted and looks at war crimes and international crimes investigations more broadly.
2.75
On this issue the Australian Federal Police stated that:
What we can oversee in our role, from an operational perspective, is assessing from an evidentiary perspective these people who are overseas on whether or not they could be prosecuted if they did return to Australia and the government made that decision. However, we are dealing with not having sufficient evidence to prosecute some people if they returned to Australia. We've already been on the record noting some of the complexities of obtaining evidence from what is, in effect, a battle zone or a battlefield. There are a lot of complexities in obtaining that evidence and utilising that in a court of law back in Australia. Again, with some of the people we're dealing with and some of the people who we believe are still a threat, we don't have evidence in an admissible form so that we could prosecute them if they came back to Australia.
2.76
ASIO made the observation that the change to a ministerial decision-making model will allow ASIO to contribute to the decision and to advise that there are times in which it would be preferable not to strip citizenship:
The proposed amendments provide scope for ASIO to advise against citizenship cessation in circumstances where that outcome would be prejudicial to security or where the security risk could be better managed using other options.
Additionally, they would provide scope for citizenship cessation to be weighed against broader national interests, such as Australia’s relations with other countries.
2.77
During the public hearing the Committee Ms Susan Hutchinson, Campaign Architect, Prosecute; Don't Perpetrate suggested that if citizenship revocation is to stay as a tool of the government then the public interest test, contained in proposed section 36E of the Bill include ‘a consideration for the minister similar to the one which is around prosecution for terrorism offences ’which would require inserting ‘a consideration which is around the consideration for prosecution of offences under chapter 8 of the Criminal Code.’
2.78
In a supplementary submission ACIJ suggested the Bill contain the following position, that
in deciding whether to make a determination under s 36B(1) or revoke such a determination – whether the person is being or is likely to be prosecuted in relation to conduct pursuant to divisions 268, 270 or 274 of the Criminal Code.
And:
Including a recommendation to the public interest considerations means that the Minister must have regard to whether genuine investigations into conduct amounting to international crimes, have been made and whether charges or prosecutions are likely. This would alleviate some of our concerns about the prosecutorial and investigative strategy which conveniences terrorism-related offences only.
2.79
The Committee notes that Divisions 168, 270 and 274 of Chapter 8 of the Criminal Code relates to the following:
Division 268 - genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court;
Division 270 - slavery and slavery‑like offences; and
Notice provisions
2.80
As set out in the previous chapter proposed section 36F confers an obligation on the Minister, if he or she makes a determination under subsection 36B(1) or 36D(1) because of which the person has ceased to be an Australian citizen, to give written notice to that effect to the person concerned. The Minister also has a discretion to give that written notice of the determination to such other persons and at such a time as the Minister considers appropriate.
2.81
In addition notice may be given by way of electronic notice in certain circumstances and may be withheld if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations.
2.82
The Australian Human Rights Commission has a number of concerns with the notification requirements as set out in the Bill. These were that an affected person:
will not be notified in advance of the prospect of their citizenship being removed, and will not have the opportunity to make submissions or respond to adverse allegations at this stage.
2.83
In addition the Commission were concerned that there
is a real prospect that an Australian citizen will lose their citizenship without the ability to seek revocation if the Department does not have their contact details; and
is no requirement for an affected person to be provided with reasons for the cessation of their citizenship.
2.84
The Law Council had similar concerns stating that:
the requirement for the provision of notice is an important step, particularly in relation to advising of steps to apply for revocation, it is concerned that notice is only provided once a decision has been made. As noted above, the removal of natural justice in the decision-making process, coupled with the lack of prior notification of a decision to cancel does not allow for a person to challenge material before the Minister.
2.85
In addition the Council agreed with the INSLM that
there should be a high threshold in the legislation before the requirement to provide notice under proposed section 36F can be avoided. As noted by the INSLM one of the criticisms of the existing sections 35 and 33AA is that ‘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’
Retrospectivity
2.86
The retrospective application of the provision in 36B and 36D are set out in the previous chapter. The Explanatory Memorandum states that:
In regards to the retrospective application of section 36B, this is consistent with the date from which relevant convictions can form the basis of a citizenship cessation determination under 36D. While this extends the power of subsection 36B, it only has legal consequences if the Minister decides to make a determination under section 36B after commencement, and the conduct meets the other requirements the Minister is required to consider when making such a determination.
In addition, the definition of a ‘relevant terrorism conviction’ in section 36D narrows the retrospective application of this provision. Section 36D only applies 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. Orders under these schemes are made on lower, non-criminal thresholds..
2.87
A number of submitters raised concerns with the proposed amendment to the retrospective application of the Bill. The Australian Human Rights Commission submitted that it considered that
extending retrospectivity generally reduces the proportionality of the Bill with respect to its purported goals. Further, affected persons would not have known at the earlier time that they may be liable to Australian citizenship removal and the severe human rights consequences that flow from it.
2.88
The Law Council, accepting that it was ‘within the power of the Parliament to enact retrospective laws’ felt that this contravened
fundamental notions of justice, fairness and the rule of law. Retroactive removal of a person’s citizenship is a substantive alteration of a person’s legal rights and obligations, and fundamentally unjust.
2.89
In addition to the philosophical point the Law Council also argued that:
Prospective laws may arguably have a general deterrent effect or a specific deterrent effect on individuals vulnerable to radicalisation, but there is no evidence to suggest that making the laws retrospective will achieve these outcomes. Retrospectivity may unwittingly capture those who have reformed or assisted the authorities, thereby demonstrating current or subsequent allegiance to Australia.
2.90
Dr Rayner Thwaites submitted that retrospectivity ‘increases the vulnerability of the measures to legal challenge.’
2.91
One particular concern the Committee discussed with witnesses at the public hearing was the effect that retrospectivity might have on children or dependants of a person subject to citizenship cessation. In answering this concern the Department stated that issues around children of dependants would be
all part of the advice that goes up to the minister for the minister to make the decision, whether it be around family situations, the individual themselves, and again going to international considerations or international relationship considerations, and intelligence and law enforcement. All of that information will be put before the minister for the minister to have a full awareness, or picture, of the individual and the case before him or her, and to make that decision fully informed.
Committee comment
2.92
The Committee welcomes the move from an ‘operation of law’ model of citizenship loss to a ministerial decision model. As with many submitters the Committee is pleased that this increases the opportunity for persons affected by citizenship cessation provisions to seek judicial review and, in relation to an ASIO Qualified Security Assessment (QSA), merits review.
2.93
In relation to judicial review the Committee notes that a person has the right to access judicial review under section 75(v) of the Constitution or section 39B of the Judiciary Act 1903 in relation to the Minister’s cessation determination or the Minister decision on an application for revocation. In any judicial review action, the Court would consider whether or not the power given by the Citizenship Act has been exercised lawfully. A person also has a right to seek declaratory relief as to whether the conditions giving rise to the cessation of citizenship have been met.
2.94
The Committee considered the level of satisfaction in relation to the matters set out in proposed section 36B(1) required by the Minister before making a determination that a person 14 years or older ceases to be an Australian citizen under. Currently the Minister needs to be ‘satisfied’ that the matters in proposed section 36B(1) exist. After consideration, the Committee recommends that Explanatory Memorandum clarify that the Minister must be ‘reasonably’ satisfied of the matters listed in proposed subsection 36B(1).
2.95
The Committee recommends that Explanatory Memorandum clarify that proposed section 36B of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 require the Minister to be ‘reasonably’ satisfied of the matters listed in proposed subsection 36B(1).
2.96
The Committee notes concerns raised about statelessness and the fact that proposed sections 36B(2) and 36D(2) have the effect to change the question of whether a person would be rendered stateless from a question of fact to a question of the subjective ‘satisfaction’ of the Minister. The Committee notes and repeats the evidence given by the Department of Home Affairs:
That satisfaction has to be reasonable and based on reasonable material. It is the subject of judicial review at that point in time. It is then able to be tested through the revocation process, where the person can make submissions and present material in a way that is procedurally fair. It then has to again be decided. It is a management decision to consider the revocation. That is also judicially reviewable. What is also available is the safeguard in the act that says that, if a court finds that the person is not a dual citizen, the effect is taken never to have occurred. So there is that safeguard. In addition to the 'reasonableness' of the satisfaction under judicial review, there is the ability for declaratory relief; a person could seek that a court declare that they were not a dual citizen at the time of the decision. So I think there are a number of things that protect from the outcome that this decision will be made in a whimsical way, or on insufficient material, such that the person would be rendered stateless.
2.97
The Committee notes the evidence and the explanation as to what the ‘satisfaction’ of the Minister means. Further the Committee notes the judicial avenue open to someone who feels that the Minister’s determination has left them stateless. This gives the Committee confidence that the current safeguards around statelessness are appropriate.
2.98
In relation to the conduct captured by proposed section 36B and 36D the Committee is satisfied that it is conduct that is incompatible with the shared values of the Australian community and demonstrates that the people who have undertaken the conduct have severed that bond and repudiated their allegiance to Australia.
2.99
The Committee notes the evidence on the additional items submitters would wish to have included in the public interest test contained in proposed subsection 36E(2) of the Bill.
2.100
In particular, the Committee shares concerns raised around Australia’s opportunity and responsibility to prosecute its own citizens for international crimes. The Committee notes that the ASIO submission makes the observation that the change that this Bill is making to a ministerial decision-making model will allow ASIO to contribute to the decision and to advise that there are times in which it would be preferable not to strip citizenship, even though the conduct might meet the legislative requirement, because ASIO is of a view that it was in the best interests of national security to prosecute or to return the person to Australia, perhaps as an information source.
2.101
The Committee notes the difficulty in gathering evidence and prosecuting crimes committed in a conflict zone where people have been displaced, witnesses being hard to track down and, importantly, the fact that potentially some evidence gathered by defence or intelligence agencies is not admissible. Australia may then face a very real risk that a person could be brought back for prosecution for these international crimes but not be convicted, and in doing so potentially expose the Australian community to the very real risks such people pose.
2.102
The Committee also notes that subsection 36E(i) includes ‘any other matter of public interest’ as a public interest matter the Minister must consider for the purposes of deciding whether to make a determination under subsection 36B(1) or 36D(1), or whether to revoke such a determination.
2.103
It could be argued that matters covered by Chapter 8 of the Criminal Code are covered by proposed section 36E(i) of the Bill. However, given the importance of these matters the Committee recommends that the Explanatory Memorandum of the Bill clarify that under proposed section 36E(2) of the Bill, the Minister must take into account the following matters:
the likely effects of citizenship cessation on any dependents of the person whose citizenship the Minister is proposing to cancel;
a person’s connection to Australia; and
conduct that would be captured by Chapter 8 of the Criminal Code.
2.104
The Committee recommends that the Explanatory Memorandum of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 clarify that under proposed section 36E(2) of the Bill the Minister must take into account the following matters::
the likely effects of citizenship cessation on any dependents of the person whose citizenship the Minister is proposing to cancel;
a person’s connection to Australia; and
conduct that would be captured by Chapter 8 of the Criminal Code.
2.105
In relation to the notice provisions the Committee notes that, the provisions make clear that the starting presumption is that the Minister must give notice of the cessation to the affected person. Notice may be withheld if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia or Australian law enforcement operations. A determination to withhold notice can be in place for up to 6 years, but a decision to withhold notice must be reviewed every 90 days.
2.106
This requirement for frequent reviews gives the Minister and the Department ample opportunity for the individual circumstances to be assessed and prevent arbitrary withholding of notice. The Committee accepts that the provisions seek to balance competing public interests, including national security and the rights of the person.
2.107
The Committee further notes that, at the conclusions of the 6 years, notice must be provided to the individual, giving a maximum period during which notice may be withheld. Withholding of notice does not prevent the person applying for judicial review should they become aware of the cessation determination through another means.
2.108
Given the above the Committee is satisfied that the notice provisions contained the Bill are appropriate.
2.109
In its Advisory Report on the Allegiance to Australia Bill, the Committee considered the issue of section 35A having a retrospective application and found that
on balance the Committee determined these to be special circumstances. The Committee formed the view that past terrorist–related conduct, to which persons have been convicted under Australian law, is conduct that all members of the Australian community would view as repugnant and a deliberate step outside of the values that define our society.
2.110
The Committee affirms and upholds this view and is satisfied that the retrospective application of the provisions contained in the Bill are appropriate.
2.111
The Committee notes its satisfaction with the Parliamentary and Committee reporting requirements set out in the Bill. The Committee notes its comments in the statutory review in part one of this report that it
is aware that further information could 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 Secretariat, QSAs will be provided to the Committee at least when it receives an oral briefing on people who have lost their citizenship.
2.112
The Committee also notes the amendment to the Intelligence Services Act 2001 providing that the Committee will review, by 30 June 2021, the operation, effectiveness and implications of Subdivision C of Division 3 of Part 2 as amended by the proposed provisions of the Bill. This leaves less than a year since a similar review as set out part one this report has taken place. It has been the practice of the Committee to review provisions of national security legislation three years after their implementation. The Committee therefore recommends that the Intelligence Services Act 2001 be amended to provide that the Committee will commence a of review the operation, effectiveness and implications of Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 as amended by the proposed provisions of the Bill, three years after the Bills is assented to.
2.113
The Committee recommends that the Intelligence Services Act 2001 be amended to provide that the Committee will commence a review of the operation, effectiveness and implications of Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 as amended by the proposed provisions of the Bill, three years after the Bill is assented to.
2.114
Following implementation of the recommendation in this report the Committee recommends that the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 be passed.
2.115
The Committee recommends that, following implementation of the recommendations in this report, the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 be passed.
31 August 2020