- Consideration of the Bill
- This chapter outlines observations and concerns raised in evidence to the Committee’s review, including submissions received from civil society groups, academics and government departments; and evidence given at the 19 February 2024 public hearing.
- The Citizenship Repudiation Bill 2023 was only passed into law, becoming the Citizenship Repudiation Act (the Act) on 8 December 2023 and the Department of Home Affairs confirmed in its submission that as of 8 February 2024, the Minister had not yet made an application for citizenship cessation under the new provisions. Noting the lack of any applications to the court, the Committee is unable to meaningfully assess the operation and effectiveness of the amendments made by the Act. This report will therefore focus on the implications of the amendments made by the Act and the amendments which were circulated in the Senate but do not form part of the current Act.
- Citizenship cessation provisions, both the current and past versions, have wide ranging implications for the rights of individuals and Australia’s international obligations. This chapter will address the following:
- Statelessness
- Children and citizenship cessation
- Imprisonment threshold and concurrent sentencing
- Retrospectivity
- Serious offences threshold
- Aboriginal and Torres Strait Islander People
- Constitutional issues.
Statelessness
2.4Australia has voluntarily assumed obligations under the United Nations Convention on the Reduction of Statelessness (Statelessness Convention). Article 8 of the Statelessness Convention provides that a state ‘shall not deprive a person of its nationality if such deprivation would render him stateless’. Further, Article 15(2) of the Universal Declaration of Human Rights (UDHR) provides that ‘no one shall be arbitrarily deprived of his nationality’.
2.5Subsection 36C(2) of the Act provides that:
…the court must not make an order under subsection (1) in relation to the person if the court is satisfied that the person would, if the court were to make the order, become a person who is not a national or citizen of any country.
2.6Paragraph 36D(4)(c) states that in making an application to the court, the Minister must include:
information about the person’s nationality or citizenship of other countries.
2.7Prior to the Citizenship Cessation Act amendments made in 2020, a person’s Australian citizenship could only be removed if the person was a national or citizen of a country other than Australia at the time of removal. The test was a question of fact that required that a person be a dual citizen. Many submitters expressed concern with the drafting of subsection 36C(2), noting that the threshold, which was first lowered to ‘satisfaction’ rather than fact by the 2020 Act, provides less rigorous protection against the risk of statelessness and could result in people becoming stateless.
2.8At the public hearing, Ms Radha Govil from the Peter McMullin Centre on Statelessness stated:
The framing of section 36C(2), specifically the language of 'would become', allows for a temporal gap and a predictive element to the court's assessment, replicating a lower, problematic threshold which replaced the original and internationally legally compliant requirement that a person's Australian citizenship only cease if they were, at the time of citizenship revocation, also a citizen of another country.
2.9This concern was shared by other submitters including the Australian Human Rights Commission (AHRC), which recommended that subsection 36C(2) be replaced with a requirement that a person must not be deprived of their Australian citizenship unless the person is a national or citizen of a country other than Australia. The AHRC did note, however, that while it continued to consider the threshold of satisfaction too low, it saw the fact that the determination had transferred from the Executive to the judiciary as an improvement on the previous provisions.
2.10Another concern expressed by submitters was that even if a person who has their Australian citizenship revoked is a citizen of another state, they may become stateless if the country of the second nationality becomes aware of the fact that they have been convicted of a serious offence in Australia and removes their citizenship before Australia has deported them. Professor George Williams summarised this concern, stating:
… it is quite common that where a country, such as the UK or Australia, has looked to remove the citizenship of a dual national, the other country with citizenship will not take that person back. The example of Neil Prakash, for example, where Fiji simply denied that person had Fijian citizenship. Or to take another example from the UK, Abu Hamza al-Masri was a dual national, but Egypt simply revoked his Egyptian citizenship and it meant he couldn't be deported.
2.11Some submitters also expressed concern that there is a real risk that the Act may render people de facto stateless.De facto statelessness would occur where a person who is nominally a citizen in a country other than Australia, may not be able to, in practice, exercise rights associated with citizenship of that country. The individual may also be unable to return to the country of which they are a citizen due to a well-founded fear of persecution. The AHRC provided an example of Faili Kurd refugees with paternal Iranian ancestry, who are considered Iranian nationals, yet very few have succeeded in obtaining evidence of their Iranian citizenship.
2.12The Department of Home Affairs contended that the legislation contains sufficient safeguards to protect against statelessness. The Department confirmed that the Act would only capture people who are citizens of another country and not merely eligible to be a citizen of another country. When questioned about the drafting of the amendments with regards to the provisions against statelessness, Ms Clare Sharp, Group Manager and General Counsel, Legal Group, Department of Home Affairs stated:
The legislation itself contains a couple of safeguards. As part of the application, the minister needs to include information about the person's nationality and citizenship; that's pursuant to section 36D(4)(c). That information really will need to go to meeting the two matters that the court needs to have regard to. As Mr Smyth said, the court must not make an order that would render someone stateless. That's set out in section 36C(2). Further—and this is probably the most pertinent safeguard to the scenario you outlined—the court needs to have regard to, even if someone is a dual citizen, the extent to which they have a connection with that country and the availability of the rights of citizenship for that person in respect of the country. In the scenario you're talking about, if the person had no way of going to that country, I think a court would look very closely at what evidence we could provide, as the Commonwealth, in support of the minister's application about their ability to exercise their rights of citizenship.
Children and citizenship cessation
2.13International human rights law recognises that children have a special need for safeguards, care and protection and should therefore be treated differently from adults. Children enjoy the same human rights protections as adults under international human rights conventions but additionally have special protections under the Convention on the Rights of the Child (CRC). Article three of the CRC, which Australia has ratified, requires that the best interests of the child be a primary consideration in decision-making:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.14Subsection 36C(6) of the Citizenship Act now states that in deciding whether to make a citizenship cessation order, the court must have regard to the best interests of the child if the person is under 18 years of age (paragraph 36C(6)(a)) or if the person has any dependent children in Australia (paragraph 36C(6)(b)).
2.15Several submitters were concerned about the potential impact the Act could have on children. Some recommended that children below the age of 18 be exempt from the citizenship cessation provisions—which aligns with the amendment proposed by Senator David Pocock.
2.16In his submission, Senator Pocock noted the importance of providing children the opportunity to be supported and rehabilitated:
Given the reduced culpability of children and the societal failures implied by their radicalisation, I circulated an amendment to the Citizenship Repudiation Bill in the Senate that sought to exclude children under the age of 18 years from the operation of the legislation (Independent Sheet 2284 - persons aged under 18). Where children under the age of 18 years have been radicalised in our communities, we have failed them. We owe them the opportunity to be supported and rehabilitated, just as we owed them early intervention to prevent them from turning to extremist views and actions.
2.17The Law Council of Australia strongly opposed the application of the legislation to people under the age of 18, stating:
The Law Council considers that it is antithetical to those principles regarding youth justice and child wellbeing, and the liberal democratic character of our society, to strip citizenship from a child who is considered not yet mature enough to exercise the right to vote.
2.18Some submitters also commented on the impact the legislation would have on children should an adult whom a child depends on, have their citizenship revoked. The Peter McMullin Centre for Statelessness stated:
…stripping citizenship from Australian adults with dependent children, with a view to deporting those adults is also likely to be contrary to “the best interests of the child.” Section 36C (6)(b) of the Citizenship Act requires the court to consider the best interests of dependent children of parents whose Australian citizenship it is considering stripping. Removal of Australian citizenship would significantly impair the ability of a parent to live and work in the country, and provide for their family and would therefore not be in the best interests of dependent children. Further, if citizenship stripping is used as a precursor to deporting that person from the country and thus splitting up the family unit, this could contravene Australia’s international legal obligations with respect to protecting private and family life set out in Articles 17(1) and 23 of the ICCPR, Article 10 of the International Covenant on Economic, Social and Cultural Rights, Article 16 of the CRC, Article 23 of the Convention on the Rights of Persons with Disabilities, and Article 44 of the International Convention on the Rights of all Migrant Workers and Members of their Families.
2.19The Department of Home Affairs told the Committee that the Act includes sufficient safeguards to protect children under the age of 18. At the public hearing, Ms Sharp from the Department of Home Affairs drew attention to the considerations required of the court by subsection 36C(6):
I'd characterise it as being an important safeguard. By listing them out expressly like that, it means that the minister's application needs to expressly address those and explain to the court how they consider that, notwithstanding those factors in most cases, it's still conduct that warrants the cessation of citizenship. So it's not an insurmountable hurdle but they are important safeguards if the individual was a very young offender.
Imprisonment threshold and concurrent sentencing
2.20Paragraph 36C(1)(b) provides that a citizenship cessation order can be made if the court has decided to impose on the person, in respect of the conviction or convictions, a period of imprisonment that is at least three years or periods of imprisonment that total at least three years.
2.21Subsection 36C(8) states that if a person has been convicted of two or more serious offences and a court has decided to impose on the person, in respect of the conviction or convictions, two or more periods of imprisonment to be served concurrently (whether in whole or in part); then the whole of each period is to be counted in working out the total of those periods.
2.22In its submission and evidence at the public hearing, the AHRC recommended that the Act be amended so that loss of citizenship is only possible in respect of relevant convictions where a person has been sentenced to a period of imprisonment of at least six years, or to periods of imprisonment that total at least six years, and also so that concurrent sentences are counted once. At the public hearing Emeritus Professor Rosalind Croucher, President, AHRC stated:
Given the stakes involved, only the gravest criminal conduct should be captured by the regime, yet, under the act, a court can make a citizenship cessation order if, among other requirements, the court has imposed a sentence of only three years imprisonment. We are concerned by this threshold and the way in which it is calculated for concurrent sentences. When a court sentences a person to a term of imprisonment for criminal offending, the length of the sentence imposed signifies the seriousness of the conduct. In 2015, this committee recommended that six years was the sentencing threshold that demonstrated sufficient seriousness for citizenship revocation. A three-year threshold reduces the severity of the conduct to which citizenship cessation could apply without sufficient justification. We submit that the original six-year threshold should be reinstated and the method of calculating the total period should also be amended so that concurrent sentences are counted only once.
2.23Other submitters similarly recommended that the legislation be amended so that concurrent sentences are only counted once and that the three-year imprisonment threshold be lifted. These views aligned with the amendments proposed by Senator Thorpe,
2.24The Law Council of Australia submitted that counting the total length of concurrent sentences for the purpose of applying the threshold is disproportionate and risks undercutting the principle of totality:
In criminal law, the extent of accumulation or concurrency between sentences must reflect the principle of totality—that is, the aggregate or overall effective sentence imposed for multiple offences, must be ‘just and appropriate’ to the totality of the offending behaviour.
Section 36C(8) risks undercutting the principle of totality by allowing revocation of the citizenship of a person sentenced to a combined total of less than the minimum threshold (three years imprisonment). In the example [used in] the note to the section itself, the sentencing court which imposed two concurrent sentences of two years imprisonment must have decided that two years—not three years—imprisonment was the appropriate overall sentence to reflect the totality of the criminality involved in both offences.
Concurrent sentences should not be treated as if they were accumulative. To do so would be antithetical to the totality principle.
2.25Associate Professor Rayner Thwaites raised another concern that the serious offence would only need to be a component of the three-year concurrent sentence, stating at the public hearing:
The nominated serious offences need to be only a component of how you get to three years. You can count other offences that have nothing to do with the serious offences identified as indicating disallegient conduct. In the result, if your time to be served is under three years as ordered by a court, if you have a number of concurrent offences and one of which is a serious offence then you're vulnerable to being deprived of Australian citizenship. The individual and cumulative effect of these provisions puts severe strain on the idea that they register conduct of sufficient seriousness to justify turning a citizen into an alien, which renders it vulnerable to constitutional challenge.
2.26The Explanatory Memorandum (EM) states that reducing the sentencing threshold is compatible with the human rights of affected persons:
Given the range of factors a court may take into account when sentencing an offender, some of those factors may reduce a defendant’s sentence but this may not impact the serious risk posed by the nature of the offence. It is reasonable, necessary and proportionate to reduce the sentencing threshold at which cessation of citizenship may be considered to a term of imprisonment of at least three years, as this duration adequately balances the risk presented to the community by the commission of the offence with the possible cessation of the offender’s citizenship.
2.27At the public hearing, when questioned about the lower three-year threshold as opposed to the previous six year threshold, the Department of Home Affairs stated:
I would note that in the 2015 act the cessation was automatic. It was an operation of law, so there was no decision-making that went alongside that period. The period of six years was one of the few factors that inputted into whether someone automatically lost their citizenship. Both the 2020 act and the new 2023 model have a person making the decision that the conduct is so serious and significant. In the new model, it's three years as well as needing a court to look at a range of factors that are set out in the act to determine that the conduct is so serious and significant.
2.28With regards to concurrent sentencing, the EM states:
It is the intention that the duration of the sentence of imprisonment to be imposed treats the sentence concurrently being imposed for the specific conduct as a proxy for the seriousness of the conduct. A sentence that is towards the outer limit of the maximum sentence indicates of the seriousness of the conduct.
Retrospectivity
2.29Article 15(1) of the International Covenant on Civil and Political Rights prohibits retrospective criminal laws, including imposing heavier penalties than the one applicable at the time the offence was committed. This prohibition against retrospective criminal law is absolute and may never be subject to limitations.
2.30The application provision for the Bill provides that the legislation may apply to a convicted person if the person engaged in the conduct to which the conviction relates on or after 12 December 2015.
2.31The Parliamentary Joint Committee on Human Rights noted that the Act applies a lower threshold than was previously legislated and therefore may be applicable to a broader class of persons:
This bill applies a lower threshold at which a person’s Australian citizenship may be ceased (namely, convictions resulting in three years imprisonment) than that which otherwise applied from 12 December 2015. This lower threshold applies in circumstances where a person was alleged to have engaged in relevant criminal conduct on or after 12 December 2015, but had not yet been convicted. As such, citizenship cessation would potentially be applicable to a broader class of persons than would otherwise have been exposed but for this measure.
2.32Some opposed the retrospective application of the Act as contrary to the rule of law, and recommended that the Act should only apply to convictions that pertain to conduct after the commencement date of 8 December 2023.
2.33The AHRC stated:
The Commission queries why retrospective application was proposed for the Citizenship Repudiation Bill without any compelling justification, in a manner so out of step with the previous recommendation of this Committee.
The Commission considers that extending retrospectivity generally reduces the proportionality of the Bill with respect to its purported goals. Further, affected persons would not have known at the earlier time that they may be liable to Australian citizenship removal and the severe human rights consequences that flow from it.
2.34The EM’s Statement of Compatibility with Human Rights justifies the Act’s retrospective application as necessary and proportionate, on the basis that the legislation did not introduce new criminal offences, and that past terrorist conduct is in contradiction with Australian values:
The measures do not introduce any new criminal offences. However, extending the ability to cease a person’s citizenship for criminal offences dating back to 12 December 2015 where the person may be sentenced to a term of imprisonment of at least three years, or a total of three years, where the conviction occurs after the commencement of this Bill, also recognises that past terrorist conduct is conduct that all Australians view as repugnant and in contradiction with the values that define our society. The measure is also proportionate as suspended sentences are specifically excluded.
List of serious offences
2.35As outlined in Chapter 1, subsection 36C(3) provides the meaning of a ‘serious offence’, specifying that it is an offence against a range of provisions of the Criminal Code relating to terrorism, explosives and lethal devices, treason, mutiny, espionage and foreign interference, foreign incursions and recruitment.
2.36In the Senate debate on the Bill, Senator Cash on behalf of the Opposition moved amendments that would have expanded the meaning of a ‘serious offence’ to include a number of additional offences such as slavery, child sex offences outside Australia and torture. The AHRC expressed the view that the proposed additions suggested by Senator Cash, while no doubt serious offences, do not involve conduct that can be characterised as repudiating a person’s allegiance to Australia. The AHRC stated:
The Commission is of the view that expanding the citizenship cessation provisions to encompass a broad range of offences unrelated to terrorism or terrorist-related activity should not be done. The proposed amendments blur the line between serious offences that rightly attract harsh punishment and societal opprobrium, from offences that demonstrate that a person has themselves renounced their allegiance to Australia.
2.37The Law Council submitted that the list of serious offences captured by the Act should align with the offences captured by the less restrictive post-sentence terrorism orders regime, stating:
The current scope of subsection 36C(3) serious offences extends beyond that of less restrictive post-sentence orders (see Division 105A Subdivision B of the Criminal Code); it is therefore conceivable that an individual could be subject to citizenship deprivation, but not have been eligible for an extended supervision order. The exclusion of proportionality as a consideration when determining whether or not to make a citizenship cessation order serves only to highlight the incongruity of the scope of section 36C(3).
In the first instance, if the 2023 Citizenship Amendment is retained, the definition of ‘serious offence’ should be limited to terrorist offences for which a post-sentencing order may be made, consistent with section 105A.3(1) of the Criminal Code.
2.38The justification provided by the EM for the offences currently captured by the Act is that they:
demonstrate a clear nexus to the repudiation of a citizen’s responsibilities to the State, through the commission of serious and significant offences. Commission of these offences places Australian interests at risk and, where the actions of the person are serious and significant, are incompatible with the values of Australian citizenship.
Aboriginal and Torres Strait Islander People
2.39Senate amendment 2287, circulated by Senator David Pocock, would have excluded Aboriginal and Torres Strait Islander persons from the operation of the Bill. Senator Pocock argued that
First Nations peoples of Australia have inhabited this land under their own laws and customs for over 60,000 years. An Aboriginal or Torres Strait Islander person simply cannot repudiate their citizenship of this land, and it is my view that this must be made explicit in these laws, rather than relying on the common law to ensure they are protected.
2.40The New South Wales Council for Civil Liberties echoed these sentiments and submitted:
First Nations people who were born overseas should not be able to be deported, regardless of whether they have formally applied to become an Australian or not. First Nations people would always be entitled to live in Australia. First Nations people have a special cultural, historic, and spiritual connection to Australia which is inconsistent with them being considered “aliens” in the meaning of the Australian constitution.
2.41The Law Council supported Senator Pocock’s proposed amendment and recommended a further requirement for the Minister to include information about whether a person is an Aboriginal or Torres Strait Islander person in their application, stating:
Given that the constitutional power is linked to the concepts of alienage and allegiance, it is concerning that there has been insufficient consideration given to recent High Court authorities interpreting the limits of those constitutional concepts. For example, in Love v the Commonwealth, a majority of the High Court held that Aboriginal Australians who satisfy the tripartite test in Mabo v Queensland [No 2] constitute a separate category of non-citizen, non-alien. Bell J described the majority as agreeing that ‘Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution’.
Accordingly, the Law Council supports the amendment contained in sheet 2287 which would impose a new requirement that, prior to depriving a person of their citizenship, the court is satisfied that the person is not an Aboriginal or Torres Strait Islander person. Additionally, the Law Council would impose a new requirement on the Minister to include, in the application to the court for citizenship deprivation, information about whether the person is an Aboriginal or Torres Strait Islander person.
2.42There is no information in the EM nor did the Department of Home Affairs comment in its evidence to the Committee on the implications of the Act with regard to Aboriginal and Torres Strait Islander people.
Constitutional issues
2.43The constitutional cases surrounding the need for the Act, Alexander v Minister for Home Affairs [2022] HCA 19 (Alexander) and Benbrika v Minister for Home Affairs [2023] HCA 33 (Benbrika) were addressed by Professor George Williams, who stated that the issues raised in those two cases are ‘cured’ by the Act. He submitted that the Act
corrects the error identified by the High Court in the prior scheme. It does so by vesting power to revoke citizenship in a court as part of the process of sentencing a person to imprisonment.
2.44Submitters brought two other constitutional issues to the attention of the Committee, in relation to the use of the ‘aliens’ power in Section 51(xix) of the Constitution, and the outcome of the ‘NZYQ’ case.
The scope of the ‘aliens' power
2.45Section 51(xix) of the Constitution empowers the Commonwealth Parliament to make laws with respect to ‘naturalization and aliens’.
2.46The Law Council set out the scope of the aliens power as currently interpreted by the High Court and stated that it
has profound reservations, based on the multicultural character of modern Australia, about the Government adopting a reading of the aliens power that establishes different tiers of Australian citizenship.
2.47Having identified this issue the Law Council further recommended that the Committee should
make inquiries of the Attorney-General’s Department regarding the characterisation of the 2023 Citizenship Amendment is [sic] within the scope of a constitutional head of power. Consideration should be given to whether there is sufficient connection between the expanded approach to ‘serious offences’ in the 2023 Citizenship Amendment and the scope of the aliens power.