Introductory Info

Date introduced: 28 November 2018
House: House of Representatives
Portfolio: Home Affairs
Commencement: The day after Royal Assent.

The Bills Digest at a glance

What will the Bill do?

The Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 (the 2018 Bill) will amend section 35A of the Australian Citizenship Act 2007 (the Citizenship Act) to:

• adjust the ‘statelessness threshold’ for the exercise of the cessation power from the existing requirement that a person is a citizen or national of another country, to a requirement that the Minister be satisfied the person will not ‘become’ a person who is not a citizen or national of any country
• include additional offences for which conviction may lead to the loss of a person’s Australian citizenship and
• provide that Australian citizenship may be lost regardless of any sentence imposed on conviction for some offences (currently, it may only be lost where a person has been sentenced to at least six years imprisonment).

These changes will apply retrospectively to convictions that occurred on or after 12 December 2005 (with restrictions for convictions that occurred before 12 December 2015 for some offences).

What remains unchanged?

The Bill will not amend sections 33AA or 35 of the Citizenship Act, under which a dual citizen’s Australian citizenship ceases ‘automatically’ by virtue of the person’s own conduct.

The other matters of which the Minister must be satisfied before making a determination under section 35A (that the person’s conduct demonstrates their repudiation of allegiance to Australia, and that is not in the public interest for the person to remain an Australian citizen) will remain unchanged.

Key issues

The Bill in its current form is opposed by most stakeholders. Concerns raised by the Senate Standing Committee for the Scrutiny of Bills and submitters to the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) ongoing inquiry into the Bill included that:

• the removal of the six-year sentence threshold for some offences is not proportionate
• changes to the dual citizenship threshold will increase the risk of a person being made stateless, and narrow the scope for judicial review of the Minister’s determination
• the inclusion of convictions for associating with a terrorist organisation (which carries a maximum penalty of three years imprisonment) is inappropriate
• applying the amended thresholds retrospectively is inconsistent with the rule of law and Australia’s international human rights obligations and
• many of the amendments are inconsistent with recommendations made by the PJCIS after detailed consideration of the 2015 Bill that inserted section 35A into the Citizenship Act, and that the Government accepted and implemented at the time and
• the expansion of the circumstances in which citizenship can be revoked may raise questions about the constitutional validity of the Bill.

Purpose of the Bill

The purpose of the 2018 Bill is to amend section 35 of the Citizenship Act to:

• adjust the ‘statelessness threshold’ for the exercise of the cessation power, from a requirement that a person is a citizen or national of another country to a requirement that the Minister be satisfied the person will not become a person who is not a citizen or national of any country
• include additional offences for which conviction may lead to the loss of a person’s Australian citizenship and
• provide that Australian citizenship may be lost regardless of any sentence imposed on conviction for some offences (currently, it may only be lost where a person has been sentenced to at least six years imprisonment).

Background

Australian Citizenship Amendment (Allegiance to Australia) Act 2015

The Government introduced the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the 2015 Bill) in June 2015.[1] The Bill was controversial, and was substantially amended following an inquiry by the PJCIS, before being passed.[2] The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (2015 Act) amended the Citizenship Act to include two new grounds on which dual citizens could lose their Australian citizenship, and to expand one of the existing grounds:

• Section 33AA of the Citizenship Act provides that a dual citizen aged 14 years or over renounces their Australian citizenship if the person ‘acts inconsistently with their allegiance to Australia’ by engaging in specified conduct (such as terrorist acts; foreign incursions; and providing or receiving training connected to preparations for, engagement in, or assistance in, a terrorist act).
• Section 35 of the Citizenship Act was expanded to provide that the Australian citizenship of a dual citizen aged 14 years or over ceases if the person fights for, or is in the service of, a terrorist organisation declared by the Minister under section 35AA (new) or serves in the armed forces of a country at war with Australia (existing).
• Section 35A of the Citizenship Act allows the Minister to determine in writing that a dual citizen ceases to be an Australian citizen if:
  • the person has been convicted of an offence or offences against one or more specified offences (these include, amongst others, most offences against Part 5.3 (terrorism) and offences against Part 5.5 (foreign incursions and recruitment) of the Criminal Code Act 1995 (Criminal Code))
  • the person has been sentenced to imprisonment for at least six years for the conviction/s
  • the Minister is satisfied that the conduct to which the conviction/s relate demonstrates that the person has repudiated their allegiance to Australia and
  • having regard to specified factors, the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen.

A dual citizen may lose their Australian citizenship on any of the above grounds regardless of how they obtained that citizenship.

The 2015 Bill was introduced in the context of terrorism threats associated with Australians fighting with overseas terrorist and insurgent groups (‘foreign fighters’) and different forms of ‘home-grown’ terrorism. A key concern was the potential threat posed by foreign fighters to domestic security upon their return. Citizenship revocation was one means through which Australia and other western nations sought to address those threats.[3]

At the time the 2015 Bill was introduced and debated, concerns were raised about its constitutional validity. These included concerns that parts of the Bill may lack the support of a constitutional head of power, potentially falling outside the scope of the ‘aliens’ power under section 51(xix) of the Constitution, and may constitute a vesting of judicial power in the executive, in breach of the separation of powers.[4] To some extent these concerns were addressed in Government amendments to the Bill, introduced in response to recommendations of the PJCIS.[5] Nonetheless, it has been suggested that potential difficulties could remain.[6]

To date, there has been no constitutional challenge to the validity of the amendments made by the 2015 Act. Some of the constitutional issues raised regarding that legislation have also been raised in relation to the current Bill—these are discussed in the ‘Key issues and provisions’ section of this Digest.

Use of current provisions

As at 11 February 2019, 12 people had lost their Australian citizenship under provisions amended or introduced by the 2015 Act, all apparently due to their involvement with terrorist groups overseas. Section 35A of the Citizenship Act, which the Bill will amend, had not been used.[7]

The first use of the new provisions was in early 2017, with the media reporting in February that year that Khaled Sharrouf had lost his Australian citizenship after travelling to Syria in 2013 and later joining the Islamic State group.[8] Sharrouf gained notoriety in Australia after releasing photographs of his young son holding the severed head of a Syrian soldier in Raqqa.[9]

In August 2018, the Minister for Home Affairs, Peter Dutton, announced that another five people had lost their Australian citizenship for ‘act[ing] contrary to their allegiance to Australia by engaging in terrorism-related conduct’ overseas.[10] The Government did not want to confirm details about the individuals, but media reports stated that the five comprised three men and two women in their 20s and 30s.[11]

In November 2018, the Government stated that a further three individuals had since lost their citizenship ‘because of their involvement with terrorist organisations offshore’, taking the total since 2015 to nine.[12]

In December 2018, Minister Dutton announced that Neil Prakash had lost his Australian citizenship due to his involvement with the Islamic State group.[13] Prakash is currently facing terrorism charges in Turkey, and Australia has applied for his extradition. The ABC reported in May 2017 that it understood that Prakash would ‘face charges including "membership of a terrorist organisation", "advocating terrorism", "providing support to a terrorist organisation" and "incursions into foreign countries with the intention of engaging in hostile activities"’ if he is extradited to Australia.[14] Minister Dutton stated that Prakash was the twelfth dual citizen ‘whose Australian citizenship has ceased for actions contrary to their allegiance to Australia’.[15]

Proposed changes

In December 2017, the Daily Telegraph reported that ‘conservative Liberals’ were pushing for Australia ‘to adopt Britain’s model where terrorists who are not proven dual-nationals can be stripped of their UK citizenship if there are “reasonable grounds to consider that they could be eligible for another nationality”’, but that such a move was opposed by others in the Government, including then Minister for Foreign Affairs, Julie Bishop.[16]

In February 2018, the Minister for Immigration and Border Protection (now the Minister for Home Affairs) announced that he had asked his department to review the 2015 amendments:

I am concerned that legislation to strip the Australian citizenship of dual nationals engaged in terrorism is not working as it should.

We know there are dual citizens among Australians fighting with terrorists in the Middle East and yet officials have so far confirmed that only one has lost their citizenship under the operation of the law.

It is far easier to strip the Australian citizenship of a dual national who simply lied in their application to become an Australian citizen, for example, by failing to declare a criminal conviction.

Indeed, some 20 dual citizens have had their Australian citizenship revoked since 2014 for child sex and other serious offences.

I don’t think the difference makes sense to Australians concerned by the prospect of battle-hardened extremists returning here and so I have asked for the application of the law to be reviewed by my Department.[17]

Announcing the amendments in the 2018 Bill ahead of its introduction, the Government stated that it would ‘do everything we can to stay ahead of the evolving threat of terrorism to keep Australians safe’.[18] Pointing to the attack on Bourke Street in Melbourne on 9 November 2018 and recent terrorist-related arrests, the Prime Minister argued that Australia needed ‘robust measures to protect our community’ and ‘cannot be complacent’.[19] Further:

“We now need to focus attention on strengthening the citizenship loss provisions which commenced in 2015 as they relate to terrorists within Australia, in order to protect our community.”[said Mr Dutton]

The proposed changes would enable the Minister to cease the citizenship of anyone who is convicted of a terrorism offence in Australia, irrespective of the sentence they receive. This removes the current requirement that a terrorist offender must be sentenced to at least six years’ imprisonment.

The Government will also change the threshold for determining dual citizenship. This change aims to improve the Minister’s scope to determine a person’s foreign citizenship status.

“We assess there are around 50 Australian dual citizens who may be eligible to lose citizenship under the current provisions, and even more with the changes we are announcing today,” Mr Dutton said.[20]

The 2018 Bill will expand section 35A, under which citizenship may be revoked by the Minister in certain circumstances following the conviction of a person for a specified offence. It will not amend sections 33AA or 35 of the Citizenship Act, under which a dual citizen’s Australian citizenship ceases ‘automatically’ by virtue of the person’s own conduct.

Number of individuals potentially impacted

The Department of Home Affairs (DoHA) advised the PJCIS:

Having regard to information currently known as at January 2019, the amendments, if passed, may give the Minister the power to cease the Australian citizenship of a further 18 individuals (five currently serving sentences, and 13 who have been released into the community) under section 35A.[emphasis added].[21]

Statelessness and international law

Australia has ratified both the 1954 Convention Relating to the Status of Stateless Persons (1954 Convention) and 1961 Convention on the Reduction of Statelessness (1961 Convention) which create obligations to afford certain rights to stateless persons and implement measures to prevent and reduce statelessness.[22] It is also a party to a number of other international instruments, including the International Covenant on Civil and Political Rights, which recognise the right to acquire a nationality.[23] These instruments do not create a general positive obligation on states to confer nationality on stateless persons, though this duty may arise in specified circumstances.[24] For example, article 1 of the 1961 Convention requires states to grant nationality to a child born in their territory who would otherwise be stateless.[25]

International law also constrains the circumstances in which a state can revoke citizenship. In particular, article 8(1) of the 1961 Convention provides that a state is not to deprive a person of its nationality if doing so would render the person stateless. There are limited exceptions to this obligation, the main one being where the person has acquired citizenship through misrepresentation or fraud.[26] Article 8(3) provides a further exception where, at the time of signing, ratifying or acceding to the Convention, a state made a declaration retaining an existing right under its domestic law to deprive the citizenship of a person in certain cases, including where, ‘inconsistently with his duty of loyalty to the Contracting State’, the person ‘has conducted himself in a manner seriously prejudicial to the vital interests of the State’.[27] Australia did not make a declaration when acceding to the Convention in 1973, and no such basis for depriving citizenship existed in Australian law at the time. In contrast, the United Kingdom retained the right to deprive citizenship on this ground.[28]

Committee consideration

Parliamentary Joint Committee on Intelligence and Security

The Bill has been referred to the PJCIS for inquiry and report. Details of the inquiry are at the inquiry homepage. No reporting date has been set. Some of the evidence presented to the PJCIS is included in the ‘Position of major interest groups’ and ‘Key issues and provisions’ sections of this Digest.

As noted above, the PJCIS considered and reported on the 2015 Bill. Its recommendations were implemented in the 2015 Act. The consistency or otherwise of the amendments in the 2018 Bill with the PJCIS’s 2015 recommendations is addressed in the ‘Key issues and provisions’ section of this Digest.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) had concerns about the proposed expansions to the Minister’s power to revoke citizenship on the basis of conviction for certain offences, and the retrospective application of the amendments.[29]

The Scrutiny of Bills Committee considered that removing the threshold for some offences relating to the sentence/s imposed being at least six years imprisonment, which it noted goes against a 2015 recommendation of the PJCIS, ‘may inappropriately expand administrative power and may unduly trespass on personal rights and liberties’.[30] It raised similar concerns about the effect of the change to the dual-citizenship threshold, noting that this could lead to a person losing their citizenship in circumstances where they become stateless as a result, and possibly subject to indefinite detention in Australia.[31] The Committee further noted that the change would narrow the scope for review of the Minister’s determination.[32] Accordingly, the Committee sought more detailed justification from the Minister on the necessity for and appropriateness of expanding the Minister’s power to determine that a person ceases to be an Australian citizen.[33]

The Committee considered that the Government had not provided sufficient justification for the retrospective application of the amendments, particularly the removal of the sentence threshold for convictions that occurred up to 13 years ago. On this matter, the Committee drew its concerns to the attention of senators and left to the Senate as a whole the appropriateness of the proposed retrospective application of the amendments.[34]

Policy position of non-government parties/independents

The Australian Greens oppose the Bill. Justice spokesperson, Senator Nick McKim, stated the Bill (in particular, lowering the threshold with respect to dual citizenship) would undermine the rule of law and the presumption of innocence.[35]

The Australian Labor Party has reserved its position while the Bill is being considered by the PJCIS.[36] Senator Penny Wong has reportedly stated that Labor is ‘likely to issue a dissenting report’ when the PJCIS reports on the Bill.[37] When asked why, Senator Wong stated that passing laws that don’t work does not make Australians safer, and indicated that Labor had concerns about lowering the dual citizenship threshold in light of the Prakash matter (where Fiji has denied that Prakash is a Fijian citizen—see further below).[38] Labor is reported to have received legal advice from Peter Hanks QC that there is a ‘reasonable argument’ the Bill may be unconstitutional.[39]

At the time of publication of this Bills Digest, there was no public indication of the policy position of any other non-government parties and independents on the Bill.

Position of major interest groups

The Bill was opposed by almost all of the organisations and academics whose submissions to the PJCIS’s inquiry had been published at the date of publication of this Digest.[40]

An overview of key concerns raised in those stakeholders’ submissions is set out in Table 1 below. Further detail is included in the ‘Key issues and provisions’ section of this Digest.

Several stakeholders also questioned whether the Bill, taken as whole, will in fact contribute to its stated objectives of ‘keep[ing] Australians safe from evolving terrorist threats’ and ‘uphold[ing] the integrity of Australian citizenship and the privileges that attach to it’.[41]

Bret Walker SC, a former Independent National Security Legislation Monitor (INSLM), supported the removal of the six-year sentencing threshold but held concerns about lowering the threshold relating to dual citizenship.[42]

Table 1: Key issues raised in submissions to the PJCIS

Issue	Stakeholder/s
Removal of the six-year sentence threshold for some offences, including that the amendment: is not proportionate inappropriately expands ministerial discretion and is inconsistent with a 2015 recommendation of the PJCIS that was accepted and implemented by the Government at the time.	Australian Human Rights Commission (AHRC) Law Council of Australia (LCA/Law Council) Australian Lawyers for Human Rights (ALHR) Australian Federation of Islamic Councils (AFIC) Immigration Advice and Rights Centre (IARC) Dr Sangeetha Pillai and Professor George Williams (University of New South Wales, Faculty of Law) Dr Rayner Thwaites (University of Sydney, Sydney Law School) Professor Helen Irving (University of Sydney, Sydney Law School) Professor Kim Rubenstein, Associate Professor Matthew Zagor and Dr Dominique Dalla-Pozza (Australian National University, College of Law) Executive Council of Australian Jewry (ECAJ) Refugee & Immigration Legal Centre (Refugee Legal) Federation of Ethnic Communities’ Councils of Australia (FECCA) Human Rights Law Centre (HRLC)
Inclusion of convictions for associating with a terrorist organisation (which carries a maximum penalty of three years imprisonment) is inappropriate and inconsistent with a 2015 recommendation of the PJCIS that was accepted and implemented by the Government at the time.	AHRC LCA AFIC Dr Rayner Thwaites	Science Party Refugee Legal HRLC
Lowering the threshold for determining dual citizenship will increase the risk of a person becoming stateless by allowing the Minister to make a citizenship cessation determination if reasonably but mistakenly satisfied that the person will not become stateless, and narrowing the scope for judicial review.	AHRC LCA ALHR AFIC United Nations High Commissioner for Refugees (UNHCR) IARC Dr Pillai and Professor Williams Dr Thwaites	Professor Irving Professor Rubenstein, Associate Professor Zagor and Dr Dalla-Pozza Peter McMullin Centre on Statelessness ECAJ Refugee Legal FECCA HRLC Science Party
Retrospective application of the amendments, including lack of sufficient justification in supporting material and inconsistency with a 2015 recommendation of the PJCIS that was accepted and implemented by the Government at the time.	AHRC LCA ALHR	Dr Pillai and Professor Williams Dr Thwaites Refugee Legal
The expansion of the circumstances in which citizenship can be revoked may raise questions about the constitutional validity of the Bill.	LCA Dr Pillai and Professor Williams	Dr Thwaites Professor Irving
Human rights implications and potential inconsistency with international law.	AHRC ALHR AFIC	Professor Rubenstein, Associate Professor Zagor and Dr Dalla-Pozza Refugee Legal HRLC
Potential impact on children.	AHRC AFIC	HRLC
Lack of merits review.	AHRC LCA Professor Rubenstein, Associate Professor Zagor and Dr Dalla-Pozza	Refugee Legal FECCA

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[43]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[44] However, some stakeholders questioned the compatibility of the Bill with some of those rights, including those relating to equality before courts and tribunals, retrospective application of penalties and deprivation of nationality, and the rights of children.[45]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had not reported on the Bill at the date of publication of this Digest.[46]

Key issues and provisions

The Bill will make three main changes to the conviction-based citizenship loss provisions in section 35A of the Citizenship Act. It will:

• include additional offences for which conviction may lead to loss of Australian citizenship
• remove the current threshold of a sentence of at least six years for some offences (relevant terrorism convictions—a new term introduced by the Bill) and
• change the existing dual-citizenship threshold under subsection 35A(1) which requires the person to be a national of another country to a requirement that the Minister be satisfied the person will not become stateless as a result of the revocation.

The other matters of which the Minister must be satisfied before making a determination under section 35A will remain unchanged. Before determining that a person ceases to be an Australian citizen under section 35A, the Minister will still need to be satisfied that:

• the conduct to which the conviction/s relate demonstrates that the person has repudiated his or her allegiance to Australia and

it is not in the public interest for the person to remain an Australian citizen (having had regard to specific listed factors as well as any other matters of public interest).[47]

The factors to which the Minister must have regard in determining whether or not it is in the public interest for the person to remain an Australian citizen will also remain unchanged. They include (amongst others) the severity of the relevant conduct, the degree of threat posed by the person to the Australian community and the person’s age.[48]

Section 35A as amended by the Bill will apply to:

• relevant terrorism convictions that occurred on or after 12 December 2005 (regardless of any sentence imposed)
• relevant other convictions that occurred between 12 December 2005 and 11 December 2015 for which a person was sentenced to at least ten years imprisonment and
• relevant other convictions that occurred on or after 12 December 2015 (where sentences of at least six years imprisonment were imposed).[49]

The 2015 Act commenced on 12 December 2015. Section 35A currently applies retrospectively to convictions that occurred between 12 December 2005 and 11 December 2015 for which a person was sentenced to at least ten years imprisonment.

Additional offences

Currently, a dual citizen may lose his or her Australian citizenship under section 35A of the Citizenship Act on the basis of a conviction for an offence or offences against:

• Subdivision A of Division 72 of the Criminal Code (international terrorist activities using explosive or lethal devices)
• section 80.1 (treason), 80.1AA (assisting enemy to engage in armed conflict) or 91.1 (espionage) of the Criminal Code
• Division 101 (terrorism), 102 (terrorist organisations) or 103 (terrorist financing) of the Criminal Code, except for section 102.8 (associating with terrorist organisations)
• Part 5.5 of the Criminal Code (foreign incursions and recruitment, including entering or remaining in a declared area)
• section 24AA (treachery) or 24AB (sabotage) of the Crimes Act 1914 and/or
• section 6 (foreign incursions) or 7 (preparations for foreign incursions) of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.

In line with a recommendation of the PJCIS on the 2015 Bill, only offences carrying maximum penalties of 10 years imprisonment or more are currently included under section 35A.[50]

The Bill will add additional offences to this list, as outlined below.

Associating with terrorist organisations

The Bill will add the offences of associating with terrorist organisations (section 102.8 of the Criminal Code) to the list of offences conviction for which a dual citizen’s Australian citizenship may cease, regardless of the sentence imposed (if any).

The offences carry a maximum penalty of three years imprisonment. They were not included in the initial set of offences proposed in the 2015 Bill, which all carried maximum penalties of at least five years imprisonment. The 2015 Bill was subsequently amended to remove all offences carrying maximum penalties of less than 10 years imprisonment, implementing a recommendation of the PJCIS, which considered that the provisions should ‘target the most serious conduct that is closely linked to a terrorist threat’.[51]

The Explanatory Memorandum states that including these offences:

... recognises that knowingly associating with a terrorist organisation, on multiple occasions, for the purposes of supporting the terrorist organisation to expand or continue to exist, is a serious offence. It is appropriate that persons convicted of this offence be eligible for cessation of citizenship on conviction, as the offence addresses the fundamental unacceptability of the terrorist organisation itself, by making meeting or communicating (“associating”) with its members in a manner which assists its continued existence or expansion, illegal.[52]

The inclusion of these offences is a significant departure from the PJCIS’s earlier recommendation and was opposed by the AHRC, LCA, and others on the basis that section 35A should remain restricted to more serious offending (based on maximum penalties as well as actual sentence) and that the offence itself is problematic and may capture a broad range of conduct.[53] As some of those stakeholders pointed out, two major reviews (one in 2006, the other in 2013) have recommended that the offence be repealed.[54]

DoHA previously referred to these offences as ‘less serious than other terrorism-related offences which carry substantially greater maximum penalties’ when explaining why the presumption against bail (which applies to other terrorism offences) does not apply for alleged offences against section 102.8.[55] Offences against section 102.8 are also excluded from the continuing detention order scheme in Division 105A of the Criminal Code for the same reason.[56]

Foreign interference

Division 92 of the Criminal Code was enacted as part of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018. It contains a range of offences criminalising certain conduct:

• engaged in on behalf of, in collaboration with, or with direction, funding or supervision by a foreign principal (or a person acting on their behalf), that seeks to interfere with Australia’s political, governmental or democratic processes, support intelligence activities of a foreign principal or prejudice Australia’s national security (Subdivision B—foreign interference) or
• involving the provision or receipt of funding, support or resources to or from a foreign intelligence agency (Subdivision C—foreign interference involving foreign intelligence agencies).[57]

The offences are intended to capture certain conduct that ‘falls short of espionage but is intended to harm Australia’s national security or influence Australia’s political or governmental processes’.[58] They carry maximum penalties of 10 to 20 years imprisonment.

The Bill will add those offences to the list of offences conviction for which a dual citizen’s Australian citizenship may cease if the person is sentenced to at least six years imprisonment. The Explanatory Memorandum does not provide a rationale for the inclusion of these offences. However, the conduct captured by these offences is of a similar nature to that of other offences already included in section 35A (most relevantly, espionage), and the associated penalties are significant.

Updated sabotage and espionage offences

The list of offences in section 35A of the Citizenship Act currently includes the offences of sabotage and espionage and similar activities that were in force when the 2015 Act was enacted. Section 24AB of the Crimes Act (sabotage) and section 91.1 of the Criminal Code (espionage and similar activities) were since replaced with updated and more comprehensive sabotage and espionage offences by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.[59]

The Bill will add all but one of these new offences (set out in Divisions 82 and 91 of the Criminal Code) to the list of offences conviction for which a dual citizen’s Australian citizenship may cease if the person is sentenced to at least six years imprisonment. The offences included carry maximum penalties of 10 years imprisonment to life imprisonment. The only offence that will not be added is that of preparing for or planning a sabotage offence (section 82.9 of the Criminal Code), which carries a maximum penalty of seven years imprisonment.[60]

Removing the sentence threshold for some offences

The 2015 Bill as introduced did not require that a person be sentenced to any minimum period of imprisonment before they could lose their Australian citizenship on the basis of one or more convictions. Following its consideration of that Bill, the PJCIS recommended that the Minister only be able to revoke a person’s citizenship following conviction where a sentence of at least six years imprisonment, or multiple sentences totalling at least six years imprisonment, had been imposed.[61] The PJCIS considered that restricting the operation of the provision on the basis of offence was not sufficient on its own:

While limiting the provision to more serious offences is an appropriate measure to better define the scope of conduct leading to revocation, the Committee notes that even following a conviction there will still be degrees of seriousness of conduct and degrees to which conduct demonstrates a repudiation of allegiance to Australia. Therefore, the Committee recommends that loss of citizenship under this provision not be triggered unless the person has been given sentences of imprisonment that together total a minimum of six years for offences listed in the Bill.

Some members of the Committee were of the view that a lower or higher threshold was preferable; however, on balance it was considered that a six year minimum sentence would clearly limit the application of proposed section 35A to more serious conduct. It was noted that three years is the minimum sentence for which a person is no longer entitled to vote in Australian elections. Loss of citizenship should be attached to more serious conduct and a greater severity of sentence, and it was considered that a six year sentence would appropriately reflect this.[62]

The Bill will remove this sentencing threshold for relevant terrorism convictions, which will mean conviction for one or more offences against:

• Subdivision A of Division 72 of the Criminal Code (international terrorist activities using explosive or lethal devices)
• Subdivision B of Division 80 of the Criminal Code (treason, including treachery)
• Division 101 (terrorism), 102 (terrorist organisations) or 103 (terrorist financing) of the Criminal Code
• Part 5.5 of the Criminal Code (foreign incursions and recruitment, including entering or remaining in a declared area) or
• section 6 (foreign incursions) or 7 (preparations for foreign incursions) of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.[63]

The existing sentencing threshold will remain in place for relevant other convictions (those relating to sabotage, espionage and foreign interference).[64]

The Explanatory Memorandum states that removing the six year threshold for terrorism, treason and foreign incursions offences is appropriate ‘[i]n light of the evolving terrorist threat’, stating that the majority of terrorist attacks, major disruptions and arrests since the National Terrorism Threat Level was raised to ‘Probable’ in September 2014 occurred after the 2015 Act was passed.[65] Speaking generally about the need for the amendments in the Bill, the Minister for Home Affairs stated that there were ‘a number of cases’ that did not fall within the current provisions, but that involved individuals that he considered to pose a ‘serious threat’ to Australia’s security.[66]

The Scrutiny of Bills Committee considered that removing this threshold for certain offences ‘may inappropriately expand administrative power and may unduly trespass on personal rights and liberties’.[67] While the change was supported by former INSLM Bret Walker, it was opposed by academics and organisations that made submissions to the PJCIS’s inquiry into the Bill.[68] Submitters supported the PJCIS’s 2015 recommendation and the rationale behind it, and considered that removing this threshold could lead to disproportionate and unjust outcomes.[69] The LCA stated:

To remain consistent with the intended purpose of the Bill, it is important that the type of offence required to trigger loss of citizenship is such that it demonstrates a repudiation of allegiance to Australia and that it is of a considerable level of seriousness.

Removing the six year sentencing limit would not appear to meet this standard and would allow citizenship [loss] on account of low level offending.[70] [emphasis in original]

Professor Rubenstein, Associate Professor Zagor and Dr Dalla Pozza considered that it is ‘unjust that a person ... whose conduct has been judged by a court not to warrant a custodial sentence ... could still suffer the severe consequence of the cessation of their Australian citizenship’.[71] They recommended that the current threshold be retained, but that if it was determined that the threshold requires adjustment, consideration be given to reducing the sentencing threshold to three years imprisonment instead of removing it entirely.[72] A three-year sentence threshold was also suggested by the ECAJ.[73]

Some stakeholders also questioned the rationale for distinguishing between relevant terrorism convictions and relevant other convictions. For example, AFIC stated:

A valid question is, how is an Australian Citizen who is actively involved in espionage, and potential sabotage, against Australia and/or the Australian Government any more entitled to retain Australian citizenship than one who commits an act of terrorism. Without diminishing the risk to individuals, it is not too difficult to envision acts of espionage or sabotage that would in fact have far more severe consequences on Australia as a whole than some acts of terrorism or acts relating to terrorism. Why does the first retain the ‘privilege’ of citizenship, in the words of the Minister, but not the latter?[74]

Dual citizenship threshold

Under existing paragraph 35A(1)(c), the Minister may only make a written determination that a person ceases to be an Australian citizen if the person ‘is a national or citizen of a country other than Australia’ at the time of the Minister’s determination. This requirement will be repealed by item 1 of the Bill. In its place, proposed paragraph 35A(1)(b) will require the Minister to ‘be satisfied’ that if the person ceases to be an Australian citizen, they would not ‘become a person who is not a national or citizen of any country’. Although the standard required under the proposed provision is not expressly stated to be that of ‘reasonable’ satisfaction, the Explanatory Memorandum notes:

It is well-established under case law that where statute provides a Minister must be ‘satisfied’ of a matter, it is to be understood as requiring the attainment of that satisfaction reasonably.[75]

The Explanatory Memorandum further states:

...it is not the intention that new paragraph 35A(1)(b) would allow the Minister to determine that a person ceases to be an Australian citizen in breach of Australia’s international obligations regarding statelessness.[76]

Nonetheless, submissions to the PJCIS inquiry from legal academics and interest groups expressed concern that the proposed amendment will increase the risk of a person being made stateless as a result of a cessation decision, in violation of Australia’s obligations under international law.[77]

Minister’s satisfaction

A key point of concern has been with the proposed change to a standard of the Minister’s reasonable satisfaction. The AHRC suggested that this ‘provides for a less rigorous decision-making process’, by lowering the administrative fact-finding requirements for the decision-maker.[78] A similar concern was raised by Australian Lawyers for Human Rights, which argued:

...the practical effect of the proposed threshold for satisfaction creates the possibility that an incorrectly formed view of the Minister, leading to a decision rendering a person stateless, would be permissible under Australian law.[79]

Rubenstein, Zagor and Dalla-Pozza noted that in light of the seriousness of the consequences of a citizen deprivation decision, international jurisprudence ‘indicates that states should maintain a high standard of proof’ on the question of whether a person will become stateless.[80]

The Scrutiny of Bills Committee, as well as a number of submissions to the PJCIS inquiry, further argued the proposed change to a standard of the Minister’s ‘satisfaction’ is likely to narrow the basis on which a cessation determination can be challenged in court.[81] Currently, the requirement that a person be a dual citizen at the time of the Minister’s determination is a ‘jurisdictional fact’—the validity of the Minister’s decision is conditional on the existence of this particular circumstance.[82] In judicial review of such a decision, the court has the power to determine for itself whether the jurisdictional fact exists—that is, whether the person is in fact a citizen or national of another country.[83] If it finds, on the basis of the evidence, that this not the case, the court will find the Minister’s decision legally invalid.

In contrast, where a condition for the decision’s validity is that the Minister be ‘satisfied’ of a certain matter, the court is not required to satisfy itself that this was the factually correct decision. As Mark Aronson, Matthew Groves and Greg Weeks state:

Powers or duties that are conditional upon a decision-maker’s opinion, satisfaction or belief might, for convenience, be called subjective powers, and no court will grant review of the exercise of subjective powers or duties simply because it would have come to a different opinion.[84]

In such circumstances, the court may consider whether the Minister’s opinion was reasonably formed but cannot overturn the decision simply because it has arrived at a different factual finding to the Minister as to the person’s citizenship status.[85] This gives rise to a potential scenario in which the Minister revokes a person’s citizenship, reasonably but mistakenly believing that they hold another nationality, leading to the person being stateless and unable to overturn their decision in the courts.[86]

The case of Neil Prakash, discussed in further detail below, can highlight the potential impact of the proposed change. This was addressed by a number of stakeholders appearing before the PJCIS in its hearing into the Bill. Professor Williams stated, on the issue of whether Mr Prakash is a citizen of Fiji (and thus a dual citizen at the time he lost his Australian citizenship):

At the moment, under the current legislation, that will be resolved by court and, if in fact [Mr Prakash] is not a Fijian citizen, that will be the end of the matter. If this bill is passed it will mean that Fiji can determine that he is not a citizen, or even our own courts could find that, but, despite that, the view of the minister would prevail.[87]

‘Become’ stateless

The change from a requirement that the person ‘is’ a national or citizen of another country, to a requirement that the person will not ‘become’ a person who is not a national or citizen of any country, appears to create an additional ambiguity. It is not entirely clear on the face of provision whether this would capture, for example:

• a person who is not currently a dual citizen but who may be eligible to apply for citizenship of another country or
• a person who had previously lost their other nationality upon acquiring Australian citizenship due to the first country not recognising dual-citizenship.

The UNHCR suggested that the ‘temporal shift’ from what a person’s nationality status is, to what it may become, may increase the risk of a person becoming stateless. It argued:

...an individual’s nationality is to be assessed as at the time of determination of eligibility under the 1954 Convention. It is neither a historical nor a predictive exercise... Therefore, if an individual is partway through a process for acquiring nationality but those procedures are yet to be completed, he or she cannot be considered as a national for the purposes of Article 1(1) of the 1954 Convention.[88]

This point was also made by the Peter McMullin Centre on Statelessness at the University of Melbourne, which raised concern that the language of proposed paragraph 35A(1)(b) ‘appears intentionally designed to permit a temporal gap and predictive element to the Minister’s discretionary powers’.[89]

Interpretation of foreign citizenship laws

The Bill does not specify a process or requirements for determining when a person may ‘become a person who is not a national or citizen of any country’. It is recognised at common law that whether a person is a citizen of a foreign country is a matter for the law of that country.[90] This reflects a principle of international law, as articulated by the International Court of Justice, that subject to any applicable international law obligations, ‘it is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality’.[91]

A number of submissions to the PJCIS inquiry pointed to the complexity of determining a person’s citizenship status under foreign nationality laws.[92] A country’s citizenship laws will often be complex, change over time, and turn on a range of factors which may not be fully known to another government and its legal advisors, such as the citizenship status of family members and actions which have been taken by the person or their family to acquire or lose citizenship. The Peter McMullin Centre on Statelessness argued:

The 2017–18 Australian parliamentary eligibility crisis surrounding Section 44(i) of the Commonwealth Constitution and the relevant High Court judgement in Re Canavan highlight the fact that dual citizenship determination is often an uncertain and complex process, even for individuals who personally seek to verify their own status.[93]

The Law Council noted that ‘expert witnesses are often called upon to give evidence with respect to difficult questions of foreign nationality law’.[94]

Furthermore, in some cases there may be divergence between a person’s citizenship under the law, and whether, in practice, they are recognised and treated as a citizen. The Immigration Advice and Rights Centre noted that where the Minister makes a finding as to the foreign nationality of an Australian citizen ‘having regard only to known facts about the person and to the text of the relevant nationality laws’, there is a risk:

...a state of satisfaction could lawfully be achieved about the existence of a person’s nationality that, in fact, leaves them with no more than theoretical nationality that is not formally recognised and affords no rights.[95]

The 1954 Convention defines ‘stateless person’ as a person who is not considered a national by any state under the operation of its law.[96] UNHCR’s Handbook on Protection of Stateless Persons states that the reference to ‘law’ in this definition should be understood as encompassing ‘not just legislation, but also ministerial decrees, regulations, orders, judicial case law (in countries with a tradition of precedent) and, where appropriate, customary practice’.[97] The Handbook further notes:

Establishing whether an individual is not considered as a national under the operation of its law requires a careful analysis of how a State applies its nationality laws in an individual’s case in practice and any review/appeal decisions that may have had an impact on the individual’s status. This is a mixed question of fact and law.

Applying this approach of examining an individual’s position in practice may lead to a different conclusion than one derived from a purely formalistic analysis of the application of nationality laws of a country to an individual’s case. A State may not in practice follow the letter of the law, even going so far as to ignore its substance. The reference to “law” in the definition of statelessness in Article 1(1) therefore covers situations where the written law is substantially modified when it comes to its implementation in practice.[98] [Emphases added]

Submissions cited the recent case of Neil Prakash to highlight some of the difficulties involved making an assessment based on the laws of another country.[99] On 29 December 2018, Minister Dutton announced that the Australian citizenship of Mr Prakash had ceased due to his membership of declared terrorist organisation, Islamic State.[100] At the time of the announcement, Mr Prakash was reported to hold Fijian citizenship through his father.[101] However, the Fijian Government subsequently announced that Mr Prakash was not, and had never been, a citizen.[102] The Australian Government has continued to argue that it relied on clear legal advice that Mr Prakash was a dual citizen with Fiji.[103] However, DoHA has stated that it did not obtain advice from experts in Fijian citizenship law on Mr Prakash’s citizenship status, or verify his citizenship status with Fijian authorities.[104]

Thwaites suggested that this current dispute as to the citizenship status of Mr Prakash highlights the potential for the citizenship deprivation power to create ‘international friction’.[105] He further raised concerns about the ‘opaque’ processes and deliberations of Australia’s Citizenship Loss Board, noting that in the case of Mr Prakash:

...we do not currently know the legal basis for the Board’s determination that Prakash is a Fijian citizen, the factual assumptions upon which that advice relies, or the government’s source of expertise on the operation of Fijian nationality law, where this includes relevant Fijian government practice as well as law.[106]

There is limited information in the public sphere about the Citizenship Loss Board or the process by which it determines a person’s dual-citizenship status. The Board is a non-statutory body composed of deputy secretaries across a number of Government departments, and evaluates and provides advice to the Department on citizenship loss cases.[107] Minister Dutton has stated that the Board’s assessment of a person’s dual-citizenship status is ‘informed by legal advice from the Australian Government Solicitor, or [the Attorney-General’s Department]’.[108] However, the non-statutory nature of the Board means that there are no processes prescribed in the Citizenship Act or associated Regulations which it is required to follow.

The complexity of assessing a person’s citizenship status under foreign nationality laws highlights the potential consequences of lowering the decision-making threshold. While under the current legislation an incorrect finding about a person’s dual-citizenship status may be overturned by a court at judicial review, under the Bill’s proposed changes—as discussed above—it will be more difficult for this to occur. The Law Council noted that, under the proposed changes, ‘it is unclear what steps a court will consider the Minister must make in order to reach a state of reasonable satisfaction’. It recommended that the legislation be amended to specify the reasonable steps the Minister should take, including verifying a person’s citizenship status with the relevant country.[109]

Indefinite detention

The Scrutiny of Bills Committee noted that a person whose citizenship ceases under section 35A, but who possesses no other citizenship and may not be able to obtain such citizenship in practice, may be detained indefinitely in immigration detention if no other country is willing to accept them.[110] Similar concerns were raised in submissions to the PJCIS inquiry, which suggested that indefinite detention would be likely to violate Australia’s obligations under international law.[111]

Retrospective application

Sentencing thresholds

The PJCIS was asked to consider as part of its inquiry into the 2015 Bill whether then proposed section 35A should apply retrospectively to convictions obtained before commencement of the 2015 Act.[112] The PJCIS noted that retrospective application was opposed by most of the participants in that inquiry ‘on the basis that it would be contrary to the rule of law’.[113] While acknowledging those concerns, the PJCIS determined that it was appropriate that the Minister be able to consider citizenship revocation based on convictions obtained no more than ten years before commencement of the 2015 Act where sentences of at least ten years had been imposed.[114] The PJCIS’s recommendation was implemented in the 2015 Act.

The Bill will considerably expand the retrospective application of section 35A for relevant terrorism convictions. In particular, it will provide that section 35A, as amended by the Bill, applies to relevant terrorism convictions occurring on or after 12 December 2005, regardless of the sentence imposed. This will mean that not only will the six year threshold be removed for these convictions retrospectively, but the ten year threshold that currently applies to convictions that occurred between 12 December 2005 and 11 December 2015 will also be removed. The justification for this in the Explanatory Memorandum, namely the evolving threat environment and the number of attacks, major disruptions and arrests that have taken place since the 2015 Act was enacted, appears illogical in so far as it applies to convictions obtained before the 2015 Act commenced.[115] If the threat the Government seeks to address arises primarily from terrorism-related conduct that has occurred since the 2015 Act commenced, it is unclear why the current limitation on convictions obtained before the 2015 Act commenced should be removed.

The Scrutiny of Bills Committee and several stakeholders raised concerns about the retrospective removal of the six and ten year sentencing thresholds.[116] While the Statement of Compatibility states that cessation of citizenship is not punitive and does not constitute a penalty, the AHRC noted that whether something constitutes a penalty ‘is not to be determined purely by the way the measure is characterised in domestic law’, and considered that in practice:

... applying the removal of citizenship provisions to persons with historic convictions would amount to retrospectively imposing a ‘heavier penalty’ for criminal conduct than that applicable at the time the crime was committed.[117]

The LCA considered the retrospective removal of the sentencing thresholds ‘contravenes fundamental notions of justice, fairness and the rule of law’ and is ‘fundamentally unjust’.[118]

Stakeholders were especially concerned about removing the sentencing threshold for convictions obtained before the 2015 Act commenced. For example, Pillai and Williams considered:

Nothing has happened, and indeed nothing could have happened, between December 2015 and December 2018 to justify the removal of a minimum sentencing threshold for citizenship revocation with respect to past convictions handed down as long as 13 years ago.[119]

Application of section 35A as amended by the Bill to relevant other convictions will be consistent with the operation of existing section 35A. That is, it will apply to convictions that occurred on or after 12 December 2005, and only to convictions that occurred before 12 December 2015 if the person was sentenced to imprisonment of ten years or more.

Dual citizenship threshold

The Bill’s proposed changes to the dual citizenship threshold will be retrospectively applied to persons who have received a relevant terrorism conviction or a relevant other conviction in the same way. That is, the new, lower threshold will be applied not only to convictions that occur after the amendments are enacted, but also to convictions dating back to December 2005.

Constitutional issues

Several legal academics have suggested that the Bill’s proposed changes to remove the sentence threshold for relevant terrorism convictions, and to lower the threshold for determining dual-citizenship, increase the likelihood that section 35A might be found to be unconstitutional.

There is no express head of power in the Constitution in relation to citizenship; in passing laws on citizenship the Commonwealth Parliament has primarily relied on the naturalisation and aliens power under section 51(xix).[120] The High Court has linked the concept of alienage with that of allegiance, finding that an alien is a person who does not owe allegiance to Australia.[121] This definition was relied on by the Government in passing the 2015 Act.[122] However, the High Court has also held that Parliament’s powers to legislate with respect of aliens is not unlimited:

...Parliament cannot, simply by giving its own definition of "alien", expand the power under s.51(xix) to include persons who could not possibly answer the description of "aliens" in the ordinary understanding of the word.[123]

These limitations were also acknowledged by the High Court in the 2004 case of Singh v Commonwealth, in which Gummow, Hayne and Heydon JJ stated:

...a power to make laws with respect to aliens does not authorise the making of a law with respect to any person who, in the opinion of the Parliament, is an alien.[124]

A number of submissions queried whether, in expanding the circumstances in which a person may lose citizenship under section 35A, the Bill may exceed these constitutional limitations. For example, Thwaites stated:

The more the Bill dilutes the seriousness of the conduct that triggers deprivation, the weaker the argument becomes that that conduct constitutes demonstrable and intentional disallegiance. This increases the likelihood that a court will hold that the sufficiency of connection between the law and the constitutional head of power is lacking. That is, it increases the likelihood that the law cannot be brought under the aliens power and thereby rendered characterisable as a law with respect to citizenship.[125]

Labor has reportedly received legal advice from Peter Hanks QC raising similar points of concern and suggesting there is a ‘substantial risk’ that the proposed amendments would be unconstitutional.[126] In light of the uncertain scope of the aliens power, it appears possible that a challenge could be brought to the constitutional validity of the Bill’s amendments.

Lack of access to merits review

The Scrutiny of Bills Committee and submissions to the PJCIS inquiry considered the impact of the Bill’s proposed changes in light of the fact that the Minister’s cessation power under section 35A is not subject to merits review by the Administrative Appeals Tribunal (AAT).[127] Merits review is not currently available for cessation decisions under the existing legislative scheme, and the Bill does not make any changes to the AAT’s jurisdiction.[128]

Merits review involves considering all evidence about the merits of a decision—the tribunal stands in the shoes of the original decision maker, and must decide whether the ‘correct or preferable’ decision has been made.[129] In comparison, judicial review is limited to consideration of whether a decision has been affected by an error of law—that is, whether the decision-maker has acted outside the lawful limits of their authority.[130]

Submissions suggested that the Bill’s proposed expansion of the circumstances in which citizenship may be revoked is particularly concerning in light of the absence of merits review. For example, in considering the reduced capacity of the courts to review a person’s dual citizenship status due to the changed threshold, the AHRC stated:

The impact...is an increased risk that an error may not be corrected on review, further diluting a safeguard against statelessness. This situation might be more understandable if the Act allowed merits review via the [AAT] for decisions made under s 35A. However, no merits review is available for these decisions, thus rendering it imperative that the decision is made correctly at first instance.[131]

Rubenstein, Zagor and Dalla-Pozza recommended the Bill be amended to provide a right to full merits review of any decision regarding deprivation of nationality, arguing:

...a thorough merits review process at the [AAT] might act to ameliorate the danger of an arbitrary deprivation of nationality and the rendering of a person as stateless. We consider the availability of judicial review...to be inadequate to the task...[132]

Concluding comments

The Government has argued that the amendments in the 2018 Bill are required in order to keep Australians safe from evolving terrorist threats and uphold the integrity of Australian citizenship and associated privileges. However, some stakeholders have questioned whether citizenship cessation is an effective tool for managing national security threats and many are opposed to the Bill. The Scrutiny of Bills Committee and stakeholders also raised significant concerns about the particular changes proposed in the Bill, questioning whether they are appropriate and proportionate and noting that several amendments are inconsistent with the PJCIS’s recommendations on the 2015 Bill.

While noting that other thresholds will remain in place, stakeholders opposed the removal of sentence thresholds for relevant terrorism convictions, which they argued is disproportionate and inappropriately expands the administrative power of the Minister.

The Bill will considerably expand the retrospective application of section 35A of the Citizenship Act for relevant terrorism convictions. Stakeholders including the LCA, human rights organisations and legal academics considered that applying the changes in the Bill retrospectively, particularly to convictions obtained between December 2005 and the commencement of the 2015 Act, is unjust and inconsistent with the rule of law.

Additionally, stakeholders have expressed concerns that in lowering the threshold for determining whether a person is a dual citizen, the Bill will increase the risk of a person becoming stateless as the result of a cessation determination. Pointing to the complexity of foreign nationality laws, and the absence of any statutory process or requirements for consultation with the other country of potential citizenship, they have suggested the Bill may increase the risk of a person being incorrectly assessed as having another nationality, with reduced scope for review of the Minister’s decision.