Introduction
Labor members welcome the proposal to replace the existing “operation of law” citizenship loss provisions – sections 33AA and 35 of the Australian Citizenship Act 2007 – with a new ministerial decision-making model of citizenship cessation.
Under sections 33AA and 35, any dual national citizen of Australia loses their Australian citizenship automatically if they engage in terrorism-related conduct that repudiates their allegiance to Australia. As the Independent National Security Legislation Monitor made clear in his Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, those provisions operate in an uncontrolled and uncertain manner. And, as ASIO told the Committee, the fact that those provisions operate automatically may lead to unintended or unforeseen adverse security outcomes.
In accordance with the Monitor’s recommendation, sections 33AA and 35 must be repealed urgently.
The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (the “Citizenship Cessation Bill” or “the Bill”) would repeal sections 33AA and 35 and replace those provisions with section 36B – a ministerial decision-making model of citizenship cessation. In doing so, the Bill would implement several of the Monitor’s key recommendations.
Labor members welcome the move to a ministerial decision-making model of citizenship cessation. Most importantly, the adoption of this model would allow the potential for adverse security outcomes to be better managed. As ASIO told the Committee:
A ministerial decision-making model of cessation would allow ASIO and other relevant agencies scope to advise against citizenship cessation in circumstances where the outcome would be prejudicial to security or where the security risk could be better managed utilising other options. At present, the current operation of law provision does not provide operational agencies with the flexibility required to utilise citizenship cessation to maximum effect.
However, Labor members are concerned that some of the other key recommendations in the Monitor’s report have not been adopted by the Government, including the Monitor’s proposal in relation to the availability of merits review. We are also concerned by some other features of the Bill which, in our view, have not been addressed adequately (or at all) in the Committee’s report.
In this Additional Comment, we set out our concerns with the Bill and propose a number of amendments to address those concerns. However, given the clear dangers posed by sections 33AA and 35 of the Australian Citizenship Act 2017 – provisions introduced and, until recently, celebrated by the current government – it is untenable for us to insist on those amendments as a condition of our support for the Bill.
This report will mark the fourth time that the Committee has issued a report in relation to the terrorism-related citizenship loss provisions of the Australian Citizenship Act 2007.
First, in 2015 the Committee issued a detailed 218-page report with 27 recommendations following its review of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (“Allegiance to Australia Bill 2015”), which introduced (among other provisions) sections 33AA, 35 and 35A into the Australian Citizenship Act 2007.
Second, in 2019 the Committee issued a split report on the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 (“the Strengthening the Citizenship Loss Provisions Bill 2018”) – a misconceived bill which Labor members did not support and which, thankfully, the Government has not proceeded with.
Third, also in 2019, the Committee issued a report on the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act 2007.
The Committee’s 2015 report grappled thoughtfully and at length with fundamental issues and concerns raised by submitters, including the meaning and value of Australian citizenship, the effectiveness of citizenship cessation in combatting terrorism, Australia’s international obligations and whether the citizenship loss provisions were constitutional. Despite also being raised by submitters in each of the Committee’s three subsequent inquiries, Labor members are disappointed that the Committee’s three subsequent reports – including this report – have failed to engage adequately with those same issues and concerns.
Labor members are therefore pleased to support Recommendation 3 of the Committee’s report, which would ensure that the Committee will have a further opportunity to consider those matters in three years.
Background: Citizenship cessation as a counter-terrorism tool
Before the 2019 federal election, Labor members issued a strongly-worded minority report in respect of the now-abandoned Strengthening the Citizenship Loss Provisions Bill 2018.
Despite the reservations of Labor members about the Strengthening the Citizenship Loss Provisions Bill 2018, all members of Committee – Labor and Liberal – reaffirmed their in-principle support for cancelling the citizenship of Australians who are dual nationals, have engaged in terrorism-related conduct against Australia (or against Australia’s vital interests) and have repudiated their allegiance to Australia. Where such cancellation is in the interests of Australia’s national security, that remains the position of Labor members.
According to the Explanatory Memorandum to the Citizenship Cessation Bill, “[c]essation 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”.
In other words, the Government has provided two related, but distinct, rationales for the terrorism-related citizenship loss provisions:
a national security rationale; and
National security rationale
ASIO and the Department of Home Affairs were unable to provide the Committee with any evidence that the existing citizenship loss provisions had, in fact, been an effective national security tool (noting that the lofty assertions of the current Minister for Home Affairs and his Department are no substitute for, and should not be confused with, evidence – a point that ASIO, at least, clearly understands).
That is not to say that citizenship cessation has been – or necessarily will be – an ineffective national security tool. It may just be that, as ASIO has submitted to the Committee, “[i]t is too early to determine any direct deterrent effects or other security outcomes among the individuals whose citizenship has ceased pursuant to sections 33AA and 35”.
What is clear from the submissions to this inquiry is that loss of Australian citizenship may, in some circumstances, have adverse security outcomes. As ASIO told the Committee in relation to sections 33AA and 35:
The practical outcome of citizenship cessation pursuant to sections 33AA and 35 is to situate these individuals offshore. As a result, they will be unable to physically execute an attack in Australia or undertake any face-to-face radicalisation, recruitment or capability transfer onshore. However, these benefits need to be balanced against the security challenges arising from locating the individual offshore
In a globally interconnected world, the location of an individual offshore as a result of citizenship cessation will not eliminate any direct threat they pose to Australian (or other) interests overseas, and it will not prevent their reach-back into Australia to inspire, encourage or direct onshore activities that are prejudicial to security—including onshore attacks.
In some instances, citizenship cessation will curtail the range of threat mitigation capabilities available to Australian authorities. It may also have unintended or unforeseen adverse security outcomes—potentially including reducing one manifestation of the terrorist threat while exacerbating another. There may be occasions where the better security outcome would be that citizenship is retained, despite a person meeting the legislative criteria for citizenship cessation— for example, where the Australian Federal Police has criminal charges that could be pursued if the person were to remain an Australian citizen.
According to evidence from the Department of Home Affairs to the Committee’s 2019 inquiry into the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A, the Government was aware “that 12 individuals had ceased their Australian citizenship” through the operation of sections 33AA and 35 of the Australian Citizenship Act 2007 (as at 14 February 2019). Since then, at least 8 further individuals have had their citizenship cancelled under those provisions (7 under section 35; 1 under section 33AA). However, because of the way in which those provisions operate, the Department has admitted that it does not know how many other individuals may have lost their Australian citizenship under sections 33AA and 35.
To our knowledge, no individual’s Australian citizenship has been cancelled under section 35A.
In our view, citizenship cessation may be a useful counter-terrorism tool, provided it is subject to robust limitations and safeguards to ensure that, to the extent possible:
adverse unintended national security consequences are avoided (such as those referred to in paragraph 2.7 above); and
the rights of Australians are afforded appropriate legal protections and that the robustness of those protections reflect the seriousness of an individual having his or her Australian citizenship cancelled (especially in circumstances where the relevant individual has not been tried or convicted by any court for any crime).
Fortunately, the move to a ministerial decision-making model of citizenship cessation will provide the Government with the flexibility to better manage the risk of potential adverse security outcomes (e.g. the Minister could decide not to cancel a person’s citizenship where the cancellation would increase the risk the person poses to Australians overseas, or where citizenship cancellation would seriously damage Australia’s international relations). Ultimately the Minister for Home Affairs will be personally responsible – and individually accountable – for properly managing those risks.
However, as elaborated on below, Labor members are not persuaded that the Bill adequately protects individual rights – or that the protections that the Bill does afford sufficiently reflect the seriousness of an individual having his or her Australian citizenship cancelled.
Symbolic rationale
In the public hearing on 2 August 2019, the Chair of the Committee said that, in his view, the “greatest effectiveness” of the citizenship renunciation powers lie in the way that they “communicate, through this Parliament, that we have a set of values, standards and conditions for belonging in the Australian community”. The Committee endorsed a similar sentiment in 2015 when those powers were first enacted.
Consistent with that position, Labor members believe this Committee must pay careful attention to the “set of values, standards and conditions” that define us as a democratic nation committed to the rule of law. This Committee, and this Parliament, must ensure that we do not endorse a law for the purpose of upholding Australian values and traditions if the very same law is inconsistent with those values and traditions, including adherence to the rule of law and our tradition of limited government.
It would also be a bitter irony if, in the name of protecting the integrity of the Australian citizenship framework, the Parliament endorsed a law that devalued Australian citizenship by treating it as if it were a mere “privilege” (a proposition put forward by the Department of Home Affairs – and rightly and strongly rejected by multiple Committee members, Labor and Liberal).
At least in some respects, the current government appears to regard Australian citizenship as if it were akin to a visa. Notably, the Department told the Committee that several aspects of proposed section 36B are modelled on section 501 of the Migration Act 1958 (being the Minister’s power to cancel a person’s visa on character grounds). We are concerned that this betrays a worrying attitude by the current government about the nature and value of Australian citizenship.
Concerns with the Bill and the Committee’s report
Against this background, Labor members believe that the Committee’s report in respect of the Bill should have been – but ultimately was not – directed to ensuring that the Bill conforms as closely as possible with the following key principles:
1
Given the key concern about sections 33AA and 35 of the Australian Citizenship Act 2007 relates to the automatic operation of those provisions – rather than their inadequate scope – proposed new section 36B should not expand the range of circumstances in which an Australian may lose his or her citizenship beyond the scope of the existing provisions.
2
The Committee should ensure any decision by the Minister to deprive an Australian of his or her citizenship – especially in circumstances where such a person has not been convicted by any court of any crime – is subject to what the Monitor described as “meaningful review”.
3
Relatedly, the limitations and safeguards that exist in respect of the citizenship loss provisions should:
a.
be consistent with the values that the provisions are, according to the Government, seeking to uphold (including the rule of law); and
b.
reflect the seriousness of depriving an individual of Australian citizenship (especially in circumstances where an individual has not been convicted by a court).
4
The bill should be drafted in a way that is consistent with Australia’s international obligations, including the Convention on the Reduction of Statelessness 1961.
5
The bill should be placed on the strongest possible constitutional footing.
We have elaborated on a number of these matters below.
In relation to point (e), we note that a recent decision by the High Court has arguably called into question whether the Commonwealth has the power to cancel a person’s Australian citizenship. We understand that the High Court is about to hear a case that is likely to provide more clarity on this question.
The debate about whether the citizenship cessation provisions are constitutional obviously can not be resolved by this Committee. Labor members note that the Government has provided assurances to the Committee, and the Australian people, that the existing citizenship cessation provisions are on a strong constitutional footing. The worth of those assurances will ultimately be determined by the High Court.
Scope of section 36B
Section 36B would not merely replace sections 33AA and 35 with a “ministerial decision-making” version of those provisions – it also expands the range of circumstances in which the Minister would be able to cancel a person’s citizenship. For example:
Under section 36B, it would not be necessary for the Minister to be satisfied that the person engaged in prescribed conduct with any particular intention (noting that, under the existing section 33AA, the person must have in fact engaged in prescribed conduct and have in fact done so with a terrorism-related intent).
Section 36B would apply retrospectively to conduct that occurred on or after 29 May 2003. By contrast, the provisions section 36B would replace – sections 33AA and 35 – have no retrospective application.
Under section 36B, it would no longer be necessary for a person to in fact be a citizen or national of another country – it would only be necessary for the Minister to be satisfied that the person would not “become a person who is not a national or citizen of any country”.
In our view, none of those features of section 36B have been sufficiently explained or justified by the Government.
Rights of review under proposed section 36B
The only avenues of review for a person whose citizenship is cancelled under section 36B would be:
to apply to the original decision-maker, the Minister, to have the decision revoked under clause 36H (“ministerial review”); or
to seek review of the Minister’s decision in the Federal Court or in the High Court (“judicial review”).
Despite the significance of a person being deprived of his or her Australian citizenship, there would be no merits review available in respect of any aspect of the Minister’s decision to cancel a person’s citizenship under section 36B.
It is true that there is no merits review under sections 33AA and 35 either – but that’s because the issue of “merits” does not arise (in a legal sense) because those provisions operate automatically. There is no “decision” by the Minister to review. Also, a person must have in fact engaged in prescribed conduct with terrorism-related intent in order to lose his or her citizenship under sections 33AA, which is a higher threshold than ministerial satisfaction.
The Independent National Security Legislation Monitor has recommended that the Minister’s determination of whether a person has engaged in prescribed conduct be reviewable by the Administrative Appeals Tribunal. And we also note that, according to the Department of Home Affairs’ own evidence to the Committee, the Department never raised concerns about the availability of merits review during the Monitor’s inquiry into the terrorism-related citizenship loss provisions (despite the Department holding discussions with the Monitor about the appropriateness of merits review in respect of decisions made under the citizenship loss provisions).
The Department of Home Affairs has offered no coherent, practical or principled justification for the Government’s rejection of the Monitor’s very modest recommendation regarding merits review. Given the Department has been given numerous opportunities to provide such a justification, we have concluded that the Department – and the Government – do not have one.
Section 36D
While most of this Additional Comment relates to the replacement of sections 35AA and 35 of the Australian Citizenship Act 2007 with section 36B of the Bill, the Bill would also replace the current conviction-based citizenship loss provision – section 35A – with proposed section 36D.
It may be that the Government has a good reason for replacing section 35A of the Australian Citizenship Act 2007 with section 36D of the Bill. If it does, it has not been provided to the Committee.
The Independent National Security Legislation Monitor recommended that section 35A be retained in its current form. In the absence of a compelling justification for departing from the Monitor’s recommendation, which the Government has not provided, the Committee should support the Monitor’s recommendation.
That said, Labor members are pleased that proposed section 36D represents a significant improvement to what the current government had proposed in its now-abandoned Strengthening the Citizenship Loss Provisions Bill 2018 – a bill that was opposed by the Labor members of this Committee.
Retrospectivity and section 36B and 36D
One of the most unsatisfactory features of the Committee’s report is its failure to adequately grasp the significance of the fact that sections 36B and 36D of the Bill would apply retrospectively to conduct that occurred on or after 29 May 2003. By contrast:
the provisions section 36B would replace – sections 33AA and 35 – have no retrospective application; and
the provision that section 36D would replace – section 35A – has a much more limited retrospective application (see paragraph 2.59 of the Committee’s report).
In its 2015 report on the Allegiance to Australia Bill, the Committee considered the question of retrospectivity at some length (see paragraphs 6.31 to 6.88 of that report). The Committee acknowledged that “retrospectivity should only be applied with great caution and following careful deliberation, with regard to the nation as a whole”.
With respect, the issue of retrospectivity is barely addressed at all in the Committee’s report in respect of the Citizenship Cessation Bill. Clearly it has not been approached with the same level of caution as the Committee approached the issue in 2015 – and nor do Liberal members appear to have engaged in the same process of careful deliberation that all Committee members went through in 2015.
In 2015, the Committee ultimately recommended that section 35A be applied retrospectively in limited circumstances. Namely, that:
section 35A be applied retrospectively to convictions for relevant offences only where sentences of ten years or more had been handed down by a court; and
the ministerial discretion to revoke citizenship only apply to convictions that had been handed down more than ten years before the Allegiance to Australia Bill received Royal Assent.
The Citizenship Cessation Bill is directly inconsistent with that 2015 recommendation by the Committee. Liberal members of the Committee have not provided any explanation – or even acknowledged – that inconsistency.
As recently as December 2018, the current Attorney-General said that “retrospective criminal law is probably the most serious and unwarranted thing that any government anywhere, in any democracy can do”. Labor members would not make the point as strongly or categorically. Unlike the current Attorney-General, we believe there may be circumstances in which retrospective laws – including retrospective laws that affect fundamental rights – may be warranted in a democracy. But the circumstances will be very rare and must always be clearly justified.
Based on the evidence provided to this inquiry, and in contrast with the Liberal members of the Committee, Labor members do not believe that sections 36B or 36D should have any retrospective application.
Labor members might feel differently about this if the Government had advanced a compelling national security-related justification for this feature of the Bill. Far from doing so, the Department of Home Affairs could not even tell the Committee how many individuals were likely to become immediately subject to having their Australian citizenship cancelled under sections 36B or 36D as a consequence of those provisions applying retrospectively. We consider that to be an extraordinary failure to carry out basic due diligence for which the Department – and the Minister for Home Affairs – should be embarrassed.
Proposed recommendations for discussion by Committee members
As we noted at the outset, Labor members believe that the Bill should be passed urgently. However, prior to its passage, the Government should make the following amendments.
1
The Bill should be made consistent with the key features of the “alternate model” proposed by the Independent National Security Legislation Monitor, including:
a.
on the question of whether a person engaged in prescribed conduct, the exercise of the power in proposed section 36B should be subject to merits review in the Security Division of the Administrative Appeals Tribunal;
b.
while the hearing rule of natural justice would not apply to the Minister’s power under proposed section 36B, the bias rule should expressly apply; and
c.
the notice requirements at paragraph 6.97(e) of the Monitor’s report should be implemented in full (in particular, a notice should not be withheld for longer than 6 months in any circumstances).
2
Consistent with the Monitor’s recommendation in respect of section 35A of the Australian Citizenship Act 2007, proposed section 36D (and its related provisions) should be deleted. No amendments should be made to section 35A.
3
Consistent with the Statelessness Convention and the existing test in sections 33AA, 35 and 35A, the Minister should not have the power to cancel a person’s Australian citizenship unless the person is, as a matter of fact, a citizen or national of another country. The Bill should be amended accordingly.
4
The Bill should be amended so that the conduct listed in proposed subsection 36B(5) must be accompanied by an element of intention (as exists currently in section 33AA). The upshot of any such amendments is that the Minister would have to be reasonably satisfied that the person engaged in prescribed conduct:
a.
with the intention of advancing a political, religious or ideological cause; and
b.
with the intention of:
i.
coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
ii.
intimidating the public or a section of the public.
5
Consistent with the provisions section 36B is purporting to replace (being sections 33AA and 35), the Bill should be amended so that the Minister can not cancel a person’s citizenship on the basis of conduct that occurred prior to the commencement of the Bill.
6
The Bill should be amended to require the Minister to consult with ASIO and the Minister for Foreign Affairs and Trade prior to making a decision to cancel a person’s Australian citizenship.
7
The Bill should be amended to require the Minister to consider the likely effects of citizenship cessation on any dependents of the person whose citizenship the Minister is proposing to cancel.
As we also said at the beginning of this Additional Comment, sections 33AA and 35 of the Australian Citizenship Act 2007 pose clear dangers. Those provisions must be repealed urgently. As such, while we hope the Government implements our proposed amendments, the adoption of our amendments is not a condition of our support for the Bill.
Hon Anthony Byrne MP
Deputy Chair
Hon Mark Dreyfus QC MP
Senator Jenny McAllister
Senator the Hon Kristina Keneally