Citizenship bill lacks clarity and necessary safeguards

The Australian Citizenship Amendment (Allegiance to Australia) Bill proposes three significant expansions to the current grounds for citizenship loss in Australia.

First, the Bill expands s 35 of the Australian Citizenship Act, which provides that a dual citizen who serves in the armed forces of a country at war with Australia will lose their Australian citizenship. Under the expanded s 35, dual Australian citizens who are in the service of a declared terrorist organisation will also lose their citizenship.

Secondly, a dual citizen will lose their Australian citizenship if they are convicted of an offence prescribed in s 35A of the Bill. The range of prescribed offences is broad, and includes offences that have no necessary connection with allegiance or national security, such as damaging Commonwealth property.

Finally, s 33AA provides that where a dual citizen engages in prescribed conduct relating to terrorism or foreign incursions, they will lose their Australian citizenship at the moment the conduct is committed. Prescribed conduct is defined by reference to offences in the Commonwealth Criminal Code, but citizenship loss does not require a conviction. The Bill does not clarify how it will be determined that a person has committed s 33AA conduct.

An individual who is stripped of citizenship faces considerable consequences. In Australia, these consequences include a loss of voting rights, deportation from Australia and potentially indefinite immigration detention. A person who loses citizenship while overseas would lose their right to re-enter Australia.

These consequences do not necessarily mean that citizenship stripping legislation can never be appropriate. The Explanatory Memorandum for the Bill describes the proposed changes as part of a multi-faceted approach to countering [rising] threats to national security. Several countries, including the UK and Canada, have adopted similar justifications for expanded citizenship stripping legislation. It is imperative, however, that such legislation operates in a clear manner, and incorporates safeguards to ensure that citizenship is only lost in serious circumstances, and that adequate protections against error are in place.

The process for citizenship loss in the Bill is neither clear nor appropriately safeguarded. In contrast to most foreign citizenship stripping laws, citizenship loss is not predicated on the exercise of ministerial discretion, but rather occurs automatically when particular conditions are satisfied. This is particularly dangerous as the conditions triggering citizenship loss are broad, and do not require the seriousness of a person’s conduct to be assessed. Consequently, people who pose no security risk – for instance, a teenager convicted without sentence of vandalising a Commonwealth building – would face automatic citizenship deprivation. The minister is granted a discretionary power to ‘exempt’ a person from citizenship loss that has already occurred automatically. The impact of such an exemption on administrative action taken on the basis that a person had lost their citizenship automatically is unclear.

The Bill also excludes key procedural safeguards that routinely apply in Australia to the exercise of administrative decisions. There is no requirement to inform a person that they have lost their citizenship under the Bill, or of the information relied upon to form this conclusion. This is compounded by the exclusion of s 39 of the ASIO Act, which ordinarily requires ASIO to complete full security assessments before Commonwealth agencies can act on the basis of its advice.

These exclusions combine to allow a process woefully lacking in rigour. For instance, an immigration departmental official could, following informal discussions with ASIO officials, conclude that a person has engaged in conduct rendering them a non-citizen under s 33AA of the Bill, and take steps to place the person into immigration detention. There is no requirement that the affected person be informed that they are considered to be a non-citizen, prior to the point at which efforts are made to remove them.

The government has emphasised that judicial review remains available under the Bill. This is true, but somewhat misleading. As the Bill frames citizenship loss as occurring ‘automatically’, rather than as a result of an executive decision, a person would be unable to challenge the loss of their citizenship itself, merely administrative decisions taken subsequent to this loss. Moreover, where a person has been removed from – or denied re-entry to – Australia, accessing the Australian courts to bring a judicial review challenge will be difficult. This has significantly hampered the quality of judicial review available under UK citizenship stripping legislation. The difficulties of bringing a successful challenge are compounded under the proposed Australian model by the fact that an affected individual has no right to obtain information about the basis upon which they are regarded as having lost their citizenship.

While citizenship removal may, in certain circumstances, be a justifiable mechanism for dealing with national security threats, careful drafting and appropriate safeguards are necessary to counterbalance the inevitably onerous consequences for affected individuals. The Bill fails resoundingly on both these points.

Sangeetha Pillai is a Lecturer in the Faculty of Law at Monash University.