Citizenship

Claire Petrie, Law and Bills Digest

Key issue
Citizenship issues were prominent during the 45th Parliament. Proposals to tighten citizenship eligibility criteria and expand the circumstances in which citizenship can be lost attracted significant attention and criticism. While neither proposal was successful, a number of issues are likely to re-emerge in the new Parliament.

Proposals in the 45th Parliament

The Government introduced two Bills in the last Parliament which proposed significant changes to Australia’s citizenship laws. Before this, the Australian Citizenship Act 2007 had last been substantively amended by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015. The 2015 Act had expanded the circumstances in which citizenship could be lost to include a person’s automatic renunciation of their citizenship through engaging in terrorism-related conduct, and the possible loss of citizenship following conviction for specified national security offences. As of April 2019, twelve people had lost their citizenship due to their involvement in terrorism.

The Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 sought to tighten the eligibility requirements for citizenship. The Bill proposed various changes to the criteria for citizenship by conferral (or ‘naturalisation’), including a tougher English language threshold, extension of the minimum permanent residency period from 12 months to four years, and a new requirement that applicants have ‘integrated into the Australian community’. The Bill also conferred greater discretions on the Minister in granting, refusing and revoking citizenship.

The Government argued the measures aimed to promote integration and safeguard national security. Conversely, the Bill was criticised by multicultural groups and migration policy experts as potentially undermining integration and social cohesion, by creating a significant bar to citizenship for many permanent residents. The ALP, Greens and Nick Xenophon Team issued dissenting reports opposing the passage of the Bill, with the ALP arguing that key elements of the changes risked ‘fragmentation of the social fabric that holds our nation together’ (p.47). The Bill passed the House of Representatives but was not debated in the Senate and was discharged from the Notice Paper in October 2017. An almost-identical Bill was introduced by Senator Pauline Hanson in 2018, but was not debated and lapsed at the dissolution of Parliament in April 2019.

In November 2018, the Government introduced the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018. This sought to lower the threshold for the revocation of citizenship under section 35A of the Australian Citizenship Act —as inserted by the 2015 Act—for persons convicted of a national-security related offence. The Bill proposed bringing additional offences within the scope of the provision and removing the minimum sentence required to trigger the revocation power for some offences. While the existing provision only allows for citizenship loss where the person is a national or citizen of another country, the Bill proposed adjusting this so that citizenship could cease if the Minister was ‘satisfied’ the person would not become stateless.

The statelessness bar to citizenship loss enables Australia to comply with its international law obligations, including under the 1961 Convention on the Reduction of Statelessness. Shortly after the Bill’s introduction, implications of the proposal to adjust this bar were highlighted by the Minister's announcement that the citizenship of Neil Prakash had ceased due to his involvement with the Islamic State group. While Mr Prakash was initially reported to hold Fijian citizenship through his father, the Fijian Government subsequently announced that he was not, and had never been, a citizen. The Department of Home Affairs stated that, while it had relied on legal advice that Mr Prakash was a dual citizen, it had not consulted experts in Fijian citizenship law, nor verified his status with Fijian authorities. In April 2019, Mr Prakash was convicted by a Turkish court for his involvement with the Islamic State. In the absence of a legal challenge, his citizenship cessation is likely to stand.

The incident raised questions about the opacity of deliberations of the non-statutory Citizenship Loss Board, made up of senior departmental officers across portfolios and responsible for advising the Department on citizenship loss cases. It also highlighted the complexity of assessing a person’s citizenship status under foreign nationality laws. Submissions from legal academics and human rights groups to the Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) inquiry into the Bill argued that the Government’s proposed changes could exacerbate these issues, as a person could become stateless with limited judicial recourse if the Minister was reasonably, but mistakenly, satisfied they held another nationality.

The Citizenship Loss Bill was not debated and lapsed at the dissolution of Parliament in April 2019. It is unclear whether the Government will pursue these measures in the 46th Parliament. Citizenship issues were not prominent during the 2019 election campaign.

The Independent National Security Legislation Monitor is due to report in August 2019 on the operation, effectiveness and implications of the terrorism-related citizenship loss provisions. This is to feed into a statutory review being conducted by the PJCIS, for which a report is due by 1 December 2019.

Citizenship and the Constitution

The Citizenship Loss Bill revived debates about the constitutional limits of Parliament’s power to legislate on citizenship. Labor members of the PJCIS inquiry produced a dissenting report, declining to support the Bill partly due to constitutional doubts, and producing legal advice from Peter Hanks QC that there was a ‘substantial risk’ the High Court of Australia would find the Bill’s measures unconstitutional. Similar questions were previously raised in relation to the2015 Act.

The uncertainty in this area arises largely due to the fact that the Constitution does not give Parliament an express power to pass laws on ‘citizenship’. Instead, Parliament has primarily relied on the ‘naturalisation and aliens’ power under section 51(xix). Laws which revoke citizenship are based on the rationale that through their conduct, a person has repudiated their allegiance to Australia, and so can be dealt with under the aliens power.

However, the scope of this power remains unclear. In a 1982 case, Pochi v Macphee, the High Court acknowledged that Parliament cannot simply define ‘alien’ as it sees fit, to cover persons who ‘could not possibly answer the description of “aliens” in the ordinary understanding of the word’. This may prevent, for example, laws which revoke citizenship for conduct which does not meet a sufficiently high threshold of seriousness to constitute a ‘repudiation’ of allegiance. Yet without a legal challenge to the citizenship revocation laws, the outer limits of Parliament’s powers have not yet been clarified.

The scope of the aliens power is currently being considered by the High Court in another context, in relation to Indigenous Australians who do not hold formal Australian citizenship. The case involves two men, Daniel Love and Brendan Thoms, who were born in Papua New Guinea and New Zealand respectively, to an Australian citizen parent of Aboriginal descent, and who have lived in Australia since childhood. Both men were convicted of assault offences and consequently had their permanent visas cancelled on character grounds under the Migration Act 1958, thus facing immigration detention and possible deportation.

In their case before the High Court, the men have challenged the exercise of these detention and deportation powers on the basis that, as Aboriginal Australians (and, in the case of Mr Thoms, as a holder of native title), they cannot be ‘aliens’ under the Constitution. They have argued that a construction of the aliens power that has the potential to include Aboriginal Australians ‘is incongruous with the unique historical status of Aboriginal Australians as the first inhabitants of Australia’. In making this argument, they suggest that a failure to meet the legislative definition of ‘citizen’ does not inevitably make a person an ‘alien’.

In response, the Commonwealth has argued that whether a person is an Aboriginal Australian, or whether they hold native title rights, are not matters relevant to determining their status as an alien. The Commonwealth argues that the Constitution has left Parliament free to decide ‘on behalf of the Australian community, who will be admitted to formal membership of that community’, and to determine (within limits) the criteria for legal status as an alien.

The High Court’s decision was reserved at the time of writing. The outcome may provide some indication of the extent to which the criteria for statutory citizenship—as provided for in the Australian Citizenship Act and amended from time to time—are determinative of broader questions of who can and cannot be treated as an alien, and potentially excluded from Australia.

Citizenship processing delays

A further issue which has attracted increased concern is the growing backlog in the processing of applications for citizenship by conferral. In a 2019 performance audit, the Australian National Audit Office (ANAO) found that, while in 2014–15 the Department was achieving its then-target of deciding 80 per cent of applications within 80 days of lodgement, this figure has declined significantly in subsequent years and there is no longer a target in place.

In its report, the ANAO calculated that, in 2017–18, only 15 per cent of decisions were made within 80 days of lodgement—96 per cent of which were decisions that the application was invalid. Over this four-year period the ANAO reported a 25 per cent increase of application lodgements, 47 per cent decrease in applications decided, and a 771 per cent increase of applications on hand at 30 June 2018.

Concerns about processing delays were initially raised by the Refugee Council of Australia in 2015, when it reported that refugees on permanent visas were experiencing significant delays in the process of applying for citizenship, with evidence suggesting that applicants who had arrived in Australia by boat were disproportionately affected. In the 2016 case of BMF16 v Minister for Immigration and Border Protection, the Federal Court found there was an unreasonable delay in processing the applications of two refugees who had arrived in Australia by boat, which amounted to an error of law. The Court found the evidence before it suggested the delays had been caused by ‘something beyond resourcing or the restructuring of the citizenship program’, noting that each man’s application had been marked as ‘undocumented arrival’, and subject to extended periods of inactivity.

Wider delays appear to have been affected by a number of factors. In its audit report, the ANAO identified the introduction of increased integrity screening processes in June 2017 as a significant driver of an increase in processing times and decrease in approval numbers. It also noted an increase in applications in the 18 months following the Government’s announced changes to citizenship criteria in April 2017. As the Government had intended the proposed changes to apply retrospectively to the date of the announcement, there had been ‘a long delay before substantive processing of the applications received from 20 April 2017 commenced’, which negatively impacted processing times.

Additionally, the ANAO found the Department did not have processes in place to monitor and address periods of processing inactivity, had been slow to implement initiatives to enhance the efficiency of its processing staff and had not checked the quality of decisions taken in 2017–18. These findings reinforced conclusions from a 2017 investigation by the Commonwealth Ombudsman into systemic issues in the management of the citizenship by conferral caseload. The Ombudsman’s report similarly identified a significant increase in applications lodged, and greater emphasis on verifying identity, as causing a slow-down in decision-making. However, the Ombudsman warned that the Department risked ‘unlawfully delaying citizenship conferral for some applicants while it either defers decision-making because it is too hard, struggles with a lack of verifiable evidence, or while it allows an application to be inactive…for long periods of time’.

The ANAO recommended the Department:

reintroduce externally reported key performance indicators for the time taken to decide applications, and publish processing times for citizenship by conferral applications per month
establish and monitor performance standards that address periods of processing inactivity and
agree with the Finance Department a revised funding model for citizenship activities, based on updated activity levels and efficient costs.

The Department disagreed with the first recommendation and disputed the finding that processing is not being done efficiently, stating that ‘system-wide reforms to the way the citizenship program is delivered are well underway’. It has agreed, or agreed in principle, with the other two recommendations. In November 2018, the Government announced the creation of a departmental task force to focus on complex citizenship cases and $9 million of funding for the recruitment and training of extra staff. It is yet to be seen the extent to which these measures will reduce processing times. Any future legislation proposing changes to citizenship eligibility may also affect such timing.

Citizenship

Proposals in the 45th Parliament

Citizenship and the Constitution

Citizenship processing delays

Further reading