- Committee Comment
- The Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (the Act) only passed into law on 8 December 2023 and at the time of this report, the provisions for a court to impose citizenship cessation as part of a sentence for certain offences had not yet been used. This made it difficult for the Committee to assess the operation and effectiveness of the amendments made by the Act.
- The Committee notes that many submitters commented on the short time given to them to comment on the Act and their view that the Committee should have been given the opportunity to inquire and report prior to the Bill becoming the Act.
- The Committee is of the view that any and all proposed legislation within its remit should be considered by it before its passage into law, save for exceptional circumstances.
- As a general comment, the Committee recognises that citizenship cessation is ‘the strongest possible response to conduct which constitutes repudiation of a person’s allegiance to Australia’. The Committee supports the passage of the Act on the basis that, with the power to cease citizenship sitting with a court, such measures will only be taken in exceptional circumstances.
Statelessness
3.5The Committee notes the concerns raised by submitters in relation to the possibility of an offender losing their citizenship in circumstances where this would leave them stateless. The Committee notes that there are provisions in the Act which provide that a court must not make an order to cease a person’s Australian citizenship if the court is satisfied that the person would become a person who is not a national or citizen of any country. As such, the court may only cease the Australian citizenship of individuals who would not be rendered stateless.
3.6The court’s decision to make the order must be informed further by its consideration of the person’s connection to their other country of citizenship (and by extension, any residual connection to Australia).
3.7In addition, the Committee notes that there a number of matters on which information must be provided to the court when an application for citizenship cessation is made, including information about the person’s Australian citizenship (paragraph 36D(4)(b)) and about the person’s nationality or citizenship of other countries (new paragraph 36D(4)(c)).
3.8Noting that the Act requires that a person not be made stateless, that full information must be provided to the court and that a court may have regard to other matters relevant to the circumstances of the case including any mitigating factors; the Committee is generally satisfied that the risk of statelessness is not such that any amendments to the Act are required.
3.9The Committee does have some residual concerns in relation to de facto statelessness where people may have technical citizenship of a country but practically cannot be returned to that country because of the particular situation of their particular ethnicity. (Examples given to the Committee included the Feyli Kurds in Iran and the Uighurs in China.)
3.10As discussed in Chapter 2, the Committee put this scenario to the Department of Home Affairs, which responded that the safeguards in the Act were adequate to protect against statelessness — particularly the requirement for a court to consider the extent to which a dual citizen had a connection to the country and access to the rights of citizenship of that country, and whose answer, quoted in Chapter Two is worth repeating as follows:
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.
3.11The Committee considers that the provisions in the Act for protection against statelessness are intended to address the potential for de facto statelessness. The Committee nevertheless recognises the seriousness of Australia’s international obligations and the welfare of individuals in this regard, and therefore recommends that this issue is worthy of reconsideration by the Government, to ensure with as much certainty as possible that the provisions in the Act are drafted in such a way as to ensure against both de jure and de facto statelessness.
Children and citizenship cessation
3.12Subject to the operation of the new regime without amendments during this period, should it become necessary, future consideration of amendments should include consideration as to whether the scheme should operate in relation to persons above 14 and below 18 only in exceptional circumstances and of any practice issues that may arise about a person’s ability to exercise the rights connected to their citizenship of another country, noting the Committee considers the safeguards in the Act generally robust in this respect.
3.13The Committee recommends that the Government consider any potential amendments to the new cessation regime in the Australian Citizenship Act 2007 after a reasonable period of 18-24 months so that its operation and effectiveness can be assessed.
3.14Should the Government consider any potential amendments to the new cessation regime after 18-24 months, the Committee recommends that the Government:
- further consider the safeguards against rendering a person stateless within the Australian Citizenship Act 2007, to ensure that the provisions prevent the possibility of a person being left stateless, including in a de facto sense where they are unable to effectively exercise the rights of citizenship of the other country.
- reconsider the inclusion of children aged 14-17 in the citizenship cessation regime and, if application of the regime to children is considered absolutely necessary, the Australian Citizenship Act 2007 be amended so that it is clear that a court may only make a citizenship cessation order in exceptional circumstances.
Threshold for period of imprisonment to make a citizenship cessation order and concurrent sentences
3.15The Committee notes the views expressed in evidence that the three-years’ sentence threshold for a court to be able to make a citizenship cessation order is too low. Relatedly, the Committee also notes the concerns raised about subsection 36C(8) which provides for concurrent sentences to be individually counted for this purpose.
3.16The Committee’s understanding is that, in sentencing, a court may refer to presumptions about whether sentences are to be served concurrently or cumulatively, and that the default position is that sentences of imprisonment are generally to be served concurrently. The Committee observes that in circumstances where the Commonwealth is making an application for citizenship cessation the offender has, by the very nature of that application, been found guilty of a serious offence.
3.17Noting the seriousness of the offences involved and the numerous additional considerations the courts must take into account before granting a citizenship cessation application, the Committee is satisfied that the sentencing thresholds are appropriate and does not recommend any change in this regard.
Constitutionality
3.18The constitutionality of citizenship cessation laws is, given the decisions in the Alexander and Benbrika cases, of utmost importance. The Committee is satisfied that the Act has addressed the primary grounds under which previous provisions regarding citizenship cessation have been found to be unconstitutional.
3.19The Committee understands that the Government is confident that the new regime put in place by the Act would withstand a constitutional challenge based on section 51(xix).
Aboriginal and Torres Strait Islander People
3.20The Committee notes the case of Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 in which the High Court of Australia recognised that Aboriginality is rooted in a spiritual, cultural and historical connection with the land and waters of Australia. This connection was not severed by colonisation. It existed before then and gave rise to Aboriginal laws and customs.
3.21As a result, the High Court recognised that even where Aboriginal people are born outside of Australia and do not have Australian citizenship under statute, they cannot be deemed aliens because the strength of Aboriginal identity supersedes their status under citizenship law and puts them beyond the Minister’s desire to deport them.
3.22Given this important decision of the High Court of Australia the Committee understands that Aboriginal or Torres Strait Islander people would not be subject to citizenship cessation, including under the new provisions.
3.23The Committee notes that section 51B of the Citizenship Act now provides that, as soon as practicable after each ‘reporting period’ (which is each 12-month period from the commencement of the provisions), the Minister must table a report in each House of the Parliament that sets out the number of applications made under new section 36D. The Committee would appreciate this report being provided to the Committee with a view to it seeking further written or oral briefings on the use of the citizenship cessation powers if it considers it necessary.
Mr Peter Khalil MP
Chair
March 2024