1.1
Section 29 of the Intelligence Services Act 2001 requires the Committee, by 1 December 2019, to review the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act 2007 (Citizenship Act).
Conduct of the inquiry
1.2
The Committee of the 45th Parliament formerly adopted the review and called for submissions on 4 April 2019. The Committee resolved to focus on
the process of renunciation by conduct or cessation, including the operation of the Citizenship Loss Board
the legal threshold for a Ministerial decision under section 35A of the Act;
citizenship loss as a response to the threat environment;
the extent of the use of the provisions (including details on persons affected by their use);
comparisons with similar legislation in other countries; and
unintended consequences flowing from renunciation by conduct or cessation of citizenship (including consequences for relatives and friends of individuals who have lost their citizenship).
1.3
Additionally, the Committee resolved to examine whether the current oversight and reporting requirements are appropriate.
1.4
Following the Australian Federal election on 18 May 2019, the Committee of the 46th Parliament again formerly adopted the review and accepted 21 submissions and 9 supplementary submissions to the review.
Report structure
1.5
This report comprises four chapters:
This chapter sets out the conduct of the statutory review, discusses the Committee’s previous reports on citizenship loss legislation, and provides an outline of the provisions under review.
Chapter two examines the operation of the current provisions relating to renunciation of citizenship by conduct and the loss of citizenship due to conviction. With regard to the renunciation of citizenship by conduct, the chapter considers:
the role of the Citizenship Loss Board,
judicial and merits review, and
the loss of citizenship due to conviction.
Chapter three reviews the effectiveness of the current provisions.
Chapter four appraises the implications of the current provisions, including:
challenging a revocation,
Australia’s duty to prosecute,
comparative international models, and
1.6
A list of submissions received is at Appendix A.
1.7
The Committee held a public hearing on 2 August 2019. A list of witnesses appearing at the hearing can be found at Appendix B.
Legislative history
The Allegiance to Australia Bill
1.8
In 2015, the Government introduced amendments to the Citizenship Act via the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Allegiance to Australia Bill). The legislative changes broadened the powers of the Minister relating to the cessation of Australian citizenship for individuals engaging in terrorism, and those who are a serious threat to Australia and Australian interests.
1.9
The then Minister for Immigration and Border Protection, the Hon Peter Dutton MP, noted at the time that the Allegiance to Australia Bill addressed
the challenges posed by dual citizens who betray Australia by participating in serious terrorism related activities …
The concept of allegiance is central to the constitutional term ‘alien’ and to this the bill’s reliance upon the aliens power in the Constitution. The High Court has found that an alien is a person who does not owe allegiance to Australia. By acting in a manner contrary to their allegiance, the person has chosen to step outside of the formal Australian community.
1.10
The Committee conducted an inquiry into the Allegiance to Australia Bill and presented its Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (2015 Advisory Report) to Parliament in September 2015.
1.11
The 2015 Advisory Report made 27 recommendations, three of which were directly relevant to the proposals made in the current Australian Citizenship Amendment (Citizenship Cessation) Bill 2019. The relevant recommendations were:
Recommendation 7: an individual’s citizenship should not be revoked under section 35A of the Act unless they had been convicted of a relevant offence with a sentence applied of at least six years imprisonment, or multiple sentences totalling at least six years’ imprisonment,
Recommendation 9: an individual’s citizenship should not be revoked under section 35A of the Act unless they had been convicted of an offence that carries a minimum penalty of 10 years imprisonment, and
Recommendation 10: Section 35A may be applied retrospectively to convictions for relevant offences where sentences of ten years or more were given. However, retrospectivity must not apply to convictions handed down more than ten years prior to the Bill receiving Royal Assent.
1.12
The Committee’s recommendations were accepted by the Government and incorporated in the subsequent Australian Citizenship Amendment (Allegiance to Australia) Act 2015, which received Assent on 11 December 2015.
The Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018
1.13
In November 2018 the Government introduced amendments to the Citizenship Act via the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 (Strengthening the Citizenship Loss Bill).
1.14
The Strengthening the Citizenship Loss Bill proposed to amend section 35A (Conviction for terrorism offences and certain other offences) of the Act.
1.15
Clause 1 of the Bill proposed repealing existing subsection 35A(1) of the Act and replacing it with a new subsection 35A(1). While the proposed provisions largely mirrored those in then section 35A(1), the Bill made three major changes:
A person’s citizenship may be revoked if they are convicted of associating with a terrorist organisation under section 102.8 of the Criminal Code (and other conditions are satisfied).
This offence carried a maximum penalty of three years imprisonment, unlike all other offences captured under section 35A which had maximum penalties ranging from ten years to life imprisonment;
A person’s citizenship may be revoked if the Minister is ‘satisfied that the person would not, if the Minister were to determine that the person ceases to be an Australian citizen, become a person who is not a national or citizen of any country’.
Under the then Act, the person must have been a national or citizen of another country at the time when the Minister made the determination.
A person convicted of a specified terrorism offence need no longer have been sentenced to a period of imprisonment of at least six years, or periods of imprisonment that total at least six years, as required under then section 35A. No minimum sentence was required in the legislation in order for someone convicted of a relevant offence to have their citizenship revoked.
This provision would apply retrospectively to all individuals who had been convicted of a specified terrorism offence from 12 December 2005.
1.16
The Committee tabled its report into the Strengthening the Citizenship Loss Bill on 14 February 2019. The Committee recommended an extended date for statutory review but otherwise recommended that the Strengthening the Citizenship Loss Bill be passed un-amended. Four members of the Committee issued a separate ‘minority report’ which recommended that the Bill not be passed and that, instead, the Prime Minister immediately refer the citizenship revocation provisions introduced by the Allegiance to Australia Bill to the Independent National Security Legislation Monitor for review. The Bill proved contentious. The Government did not formally respond to either the majority or the minority reports. The Strengthening the Citizenship Loss Bill was not passed by the 45th Parliament and the Government referred the citizenship revocation provisions to the Independent Monitor for review.
The Independent National Security Legislation Monitor’s (INSLM) Report
1.17
The proposed Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 implements a number of the recommendations contained in the INSLM’s report but does not implement a number of others. On 18 September 2019, the INSLM’s Report to the Attorney-General: Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 was tabled in Parliament.
1.18
The INSLM concluded that:
(a) s 35A is necessary, proportionate to the counter-terrorism threat and generally contains appropriate safeguards for protecting the rights of individuals; but that
(b) ss 33AA and s 35 are neither necessary nor proportionate, nor do they contain appropriate safeguards for protecting the rights of individuals;
(c) ss 33AA and 35 should urgently be repealed and, especially because of their uncontrolled and uncertain operation, be repealed retrospectively; but that
(d) a Ministerial decision-making model with proper safeguards could take the place of ss 33AA and 35 and such a model would pass muster under the INSLM Act because it would:
i. be constitutionally valid
ii. be necessary and proportionate to threats
iii. ensure compliance with international obligations
iv. properly protect individual rights
The provisions under review
1.19
The Citizenship Act provides that any dual national citizen of Australia can automatically lose their Australian citizenship if they engage in terrorism-related conduct which repudiates their allegiance to Australia. Additionally the Minister may determine that where a person is a dual national, their Australian citizenship has ceased if they have been convicted of a number of offences including terrorism offences.
Section 33AA of the Citizenship Act – renunciation and cessation of citizenship due to conduct
1.20
Subsection 33AA(1) of the Citizenship Act provides that a person, aged 14 or older who is a national or citizen of a country other than Australia, automatically renounces their Australian citizenship if they act ‘inconsistently with their allegiance to Australia’ by engaging in any of the following conduct as set out in paragraphs (a) – (h) of subsection 33AA(2):
(a) engaging in international terrorist activities using explosive or lethal devices;
(b) engaging in a terrorist act;
(c) providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;
(d) directing the activities of a terrorist organisation;
(e) recruiting for a terrorist organisation;
(f) financing terrorism;
(g) financing a terrorist;
(h) engaging in foreign incursions and recruitment.
1.21
Subsection 33AA(1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person’s birth).
1.22
Subsection 33AA(6) provides that the ‘words and expressions’ used to describe the conduct in the proposed section are to ‘have the same meanings’ as in specified parts of the Criminal Code Act 1995 (the Criminal Code). However, a criminal conviction under one of the equivalent offences in the Criminal Code would not be a requirement and the loss of citizenship would take effect immediately from the time the conduct took place.
1.23
Notice, rescission and exemption provisions are set out below.
1.24
Schedule 1, Clause 8 of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 included the following application provision in relation to section 33AA:
Section 33AA of the Australian Citizenship Act 2007 (as amended by this Schedule) applies in relation to:
(a) persons who became Australian citizens before, on or after the commencement of this item; and
(b) conduct engaged in on or after the commencement of this item (whether the conduct commenced before, on or after the commencement of this item).
1.25
The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 commenced on 12 December 2015.
Section 35 of the Citizenship Act – cessation of citizenship for service outside Australia in armed forces of an enemy country or a declared terrorist organisation
1.26
Subsection 35(1) provides that a person, aged 14 years or older, who is a national or citizen of a country other than Australia, ceases to be an Australian citizen if that person:
serves in the armed forces of a country at war with Australia; or
fights for, or is in the service of, a declared terrorist organisation (see section 35AA); and
the person’s service or fighting occurs outside Australia.
1.27
Subsection 35(1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person’s birth).
1.28
Subsection 35(4) provides that a person is not in the service of a declared terrorist organisation to the extent that:
the person’s actions are unintentional; or
the person is acting under duress or force; or
the person is providing neutral and independent humanitarian assistance.
1.29
Notice, rescission and exemption provisions are set out below.
1.30
Schedule 1, Clause 8 of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 included the following application provision in relation to section 35:
Section 35 of the Australian Citizenship Act 2007 (as amended by this Schedule) applies in relation to:
(a) persons who became Australian citizens before, on or after the commencement of this item; and
(b) fighting for, or being in the service of, a declared terrorist organisation that occurs on or after the commencement of this item (whether the fighting or service commenced before, on or after the commencement of this item).
If the fighting or service commenced before the commencement of this item, the person ceases to be an Australian citizen at the time this item commences.
1.31
The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 commenced on 12 December 2015.
Section 35AA of the Citizenship Act – declared terrorist organisation
1.32
Section 35AA(1) provides that a declared terrorist organisation is any terrorist organisation, within the meaning of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code, that the Minister, by legislative instrument, declares is a declared terrorist organisation for the purposes of this section.
1.33
Section 35AA(2) provides that before declaring that an organisation is a declared terrorist organisation, the Minister must be satisfied on reasonable grounds that the organisation:
(a) either:
(i) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or
(ii) advocates the doing of a terrorist act; and
(b) is opposed to Australia, or to Australia’s interests, values, democratic beliefs, rights or liberties, so that if a person were to fight for or be in the service of such an organisation the person would be acting inconsistently with their allegiance to Australia.
1.34
The making of a declaration under subsection (1) is taken not to be a prescribed administrative action for the purposes of Part IV of the Australian Security Intelligence Organisation Act 1979.
1.35
Subsection 35AA(4) provides that the Parliamentary Joint Committee on Intelligence and Security may:
review a declaration made under subsection (1) as soon as possible after the declaration is made; and
report the Committee’s comments and recommendations to each House of the Parliament before the end of the period during which the House may disallow the declaration.
Section 35A of the Citizenship Act – cessation of citizenship on determination by Minister after conviction for terrorism offences and certain other offences
1.36
Section 35A provides that the Minister may determine that a person ceases to be an Australian citizen if the person has been convicted of an offence against, or offences against, one or more of the following:
(i) a provision of Subdivision A of Division 72 of the Criminal Code;
(ii) a provision of Subdivision B of Division 80 of the Criminal Code (treason);
(iia) a provision of Division 82 of the Criminal Code (sabotage) other than section 82.9 (preparing for or planning sabotage offence);
(iib) a provision of Division 91 of the Criminal Code (espionage);
(iic) a provision of Division 92 of the Criminal Code (foreign interference);
(iii) a provision of Part 5.3 of the Criminal Code (except section 102.8 or Division 104 or 105);
(iv) a provision of Part 5.5 of the Criminal Code;
(vi) section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.
in respect of the conviction or convictions, have been sentenced to a period of imprisonment of at least 6 years, or to periods of imprisonment that total at least 6 years; and
be a national or citizen of a country other than Australia at the time when the Minister makes the determination.
1.38
In addition, the Minister must be satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia.
1.39
The Minister must also be satisfied that it is not in the public interest for the person to remain an Australian citizen having regard to the following matters set out in subsection 35A(1)(i) to (vii) as follows:
(i) the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences;
(ii) the degree of threat posed by the person to the Australian community;
(iii) the age of the person;
(iv) if the person is aged under 18—the best interests of the child as a primary consideration;
(v) the person’s connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;
(vi) Australia’s international relations; and
(vii) any other matters of public interest.
1.40
The person ceases to be an Australian citizen at the time when the determination is made.
1.41
Subsection 35A(1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person’s birth).
1.42
Subsection 35A(4) provides that, for the purpose of the conviction or convictions mentioned above the reference to being sentenced to a period of imprisonment does not include a suspended sentence; and:
if a single sentence of imprisonment is imposed in respect of both an offence against a provision mentioned in paragraph (1)(a) and in respect of one or more other offences, then:
if it is clear that only a particular part of the total period of imprisonment relates to the offence against the provision mentioned in paragraph (1)(a)—the person is taken to have been sentenced to imprisonment in respect of that offence for that part of the total period of imprisonment; and
if subparagraph (i) does not apply—the person is taken to have been sentenced to imprisonment in respect of the offence against the provision mentioned in paragraph (1)(a) for the whole of the total period of imprisonment.
1.43
Notice, rescission and exemption provisions are set out below.
1.44
Schedule 1, Clause 8 of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 included the following application provision in relation to section 35A:
Section 35A of the Australian Citizenship Act 2007 (as amended by this Schedule):
(a) applies in relation to persons who became Australian citizens before, on or after the commencement of this item; and
(b) does not apply in relation to a conviction of a person before the commencement of this item unless:
(i) the conviction occurred no more than 10 years before the commencement of this item; and
(ii) the person was sentenced to a period of imprisonment of at least 10 years in respect of that conviction.
1.45
As the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 commenced on 12 December 2015 this allowed for retrospective application of the law from 12 December 2005 to 12 December 2015. However the law only applies retrospectively to individuals who were convicted between these dates and given a prison sentence of 10 years of more.
Revocation of Minister’s decision
1.46
The Minister must, in writing, revoke a determination made under subsection 35A(1) in relation to a person if a conviction because of which the determination was made is later overturned on appeal, or quashed, by a court; and that decision has not been overturned on appeal; and no appeal, or further appeal, can be made to a court in relation to that decision.
1.47
If the Minister revokes the determination, the person’s citizenship is taken never to have ceased under this section because of that determination.
Notice, rescission and exemption
1.48
Notification requirements as set out in section 47 of the Citizenship Act do not apply to the sections under review. Each of the sections have their own notification, rescission and exemption procedures which, as they substantially mirror each other, are set out below.
1.49
Subsection 33AA(10) and 35(5) provides that if the Minister ‘becomes aware’ that a person has engaged in the conduct resulting in loss of citizenship, he or she must give or ‘make reasonable attempts to give’ a written notice to that effect as soon as practicable to that person. Subsection 35A(5) requires the same action be taken when the Minister makes a determination revoking citizenship. Subsections 33AA(11), 35(6) and 35A(6) provide that such a notice must set out matters required by section 35B and the person’s rights of review.
1.50
If a Minister has made a determination under subsections 33AA(12), 35(7) or 35A(7) (see below) the Minister must give written notice as soon as practicable ‘after the Minister revokes the determination’.
1.51
Subsection 33AA(12), 35(7) and 35A(7) provide that a Minister may determine that giving a written notice as provided for in subsection 33AA(10) would prejudice the security, defence or international relations of Australia, or Australian law enforcement operations. The Minister must consider whether to revoke such a determination:
no later than 6 months after making it; and
at least every 6 months thereafter until 5 years have passed since the determination was made.
1.52
Subsection 33AA(14) and 35(9) provide that the Minister has the discretion to rescind notices and exempt persons from the effect of the section 33AA and section 35.
1.53
Subsection 35A(8) provides that the determination made by the Minister under section 35A(1) must be revoked if:
(a) a conviction because of which the determination was made is later overturned on appeal, or quashed, by a court; and
(b) that decision of that court has not been overturned on appeal; and
(c) no appeal, or further appeal, can be made to a court in relation to that decision.
1.54
If the Minister decides to consider whether to exercise exemption or rescission powers in subsection 33AA(14) or 35(9) the Minister must have regard to the following matters outlined in subsections 33AA(17) and 35(12):
the severity of the matters that were the basis for any notice given in respect of the person … or of matters that would have been the basis for giving a notice in respect of the person;
the degree of threat posed by the person to the Australian community;
if the person is aged under 18—the best interests of the child as a primary consideration;
whether the person is being or is likely to be prosecuted in relation to matters referred to;
the person’s connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;
Australia’s international relations;
any other matters of public interest.
1.55
For the avoidance of doubt, subsections 33AA(16) and 35(11) provide that, in deciding whether to consider exercising the power in subsection 33AA(14) or 35(9), the Minister is not required to have regard to any of the matters referred to above.
1.56
If the Minister makes a determination under the exemption or rescission powers in subsection 33AA(14) or 35(9), the Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the Minister makes the determination, a statement that sets out the determination and the reasons for the determination, referring in particular to the Minister’s reasons in relation to the matters set out in subsections 33AA(17) and 35(12).
1.57
The exercise of the Minister’s powers to give notice of the loss of citizenship or to rescind/exempt a person is not delegable, only powers exercised under subsections 33AA(14), 35(9) and 35A(1) are subject to natural justice and any instrument exercising the powers under the section are not be a legislative instrument.
Section 35AB of the Citizenship Act - Matters to be set out in notices to persons who have ceased to be Australian citizens
1.58
Section 35AB(1) provides that a notice that is given to a person under paragraph 33AA(10)(a) or 35(5)(a) must state that the Minister has become aware of conduct because of which the person has, under section 33AA or 35, ceased to be an Australian citizen; and contain a basic description of that conduct.
1.59
Section 35AB(1) (2) provides that a notice that is given to a person under paragraph 35A(5)(a) must state that the Minister has determined under section 35A that the person has ceased to be an Australian citizen and include the reasons for the decision to make the determination.
1.60
A notice given to a person under paragraph 33AA(10)(a), 35(5)(a) or 35A(5)(a) must not contain information, or content of a document, if:
(a) the information or content includes any operationally sensitive information (within the meaning of the Independent National Security Legislation Monitor Act 2010); or
(b) the disclosure of the information or content would or might prejudice:
(i) the security, defence or international relations of Australia; or
(ii) the performance by a law enforcement or security agency (within the meaning of the Independent National Security Legislation Monitor Act 2010) of its functions; or
(c) the disclosure of the information or content would or might endanger a person’s safety; or
(d) the disclosure of the information or content would be likely to be contrary to the public interest for any other reason.
Parliamentary oversight and reporting to the Committee
1.61
Section 51B of the Act provides that, as soon as practicable after each reporting period, the Minister must table a report in each House of the Parliament that sets out:
the number of notices given by the Minister under paragraph 33AA(10)(a), 35(5)(a) or 35A(5)(a) during the reporting period; and
the number of notices the Minister unsuccessfully attempted to give under paragraph 33AA(10)(a), 35(5)(a) or 35A(5)(a) during the reporting period; and
for each notice given or attempted to be given under paragraph 33AA(10)(a) or 35(5)(a)—a brief statement of the matters that are the basis for the notice; and
for each notice given or attempted to be given under paragraph 35A(5)(a)—a brief statement of the matters that are the basis for the determination under subsection 35A(1) to which the notice relates.
1.62
The report must not contain information, or content of a document, if:
the information or content includes any operationally sensitive information (within the meaning of the Independent National Security Legislation Monitor Act 2010); or
the disclosure of the information or content would or might prejudice:
the security, defence or international relations of Australia; or
the performance by a law enforcement or security agency (within the meaning of the Independent National Security Legislation Monitor Act 2010) of its functions; or
the disclosure of the information or content would or might endanger a person’s safety; or
the disclosure of the information or content would be likely to be contrary to the public interest for any other reason.
1.63
Section 51C applies if any of the following events occurs:
the Minister gives or unsuccessfully attempts to give a notice under paragraph 33AA(10)(a) or 35(5)(a);
the Minister gives or unsuccessfully attempts to give a notice under paragraph 35A(5)(a);
the Minister makes a determination under subsection 33AA(12), 35(7) or 35A(7).
1.64
The Minister must, as soon as practicable after the occurrence of the event, inform the Parliamentary Joint Committee on Intelligence and Security in writing before the later of
the end of 20 sittings days of the House of Representatives after the occurrence of the event; and
the end of 20 sittings days of the Senate after the occurrence of the event;
the Minister must, if requested to do so by the Parliamentary Joint Committee on Intelligence and Security, arrange for the Committee to be briefed on the event.
1.65
The briefing may be done orally or in writing and must include details of the following:
for an event mentioned in paragraph (1)(a):
the matters that are the basis for the notice; and
whether the Minister has rescinded the notice and exempted the person to whom the notice related from the effect of the section in relation to the matters that were the basis for the notice;
for an event mentioned in paragraph (1)(b):
the matters that are the basis for the determination under subsection 35A(1) to which the notice relates;
whether the Minister has revoked under subsection 35A(8) the determination to which the notice relates; and
for an event mentioned in paragraph (1)(c)—the matters that are the basis for the determination.