If passed by the Federal Parliament, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) will amend the Australian Citizenship Act 2007 (Cth) to provide for automatic cessation of Australian citizenship in specified circumstances. The Federal Government said the Bill forms part of its “multi-faceted” response to what it described as a rising terrorist threat in Australia.

Proposed new ss 33AA, 35, and 35A of the Australian Citizenship Act 2007 provide that a person who is both a national or citizen of another country and an Australian citizen (ie a "dual national") automatically “renounces their Australian citizenship if the person acts inconsistently with (“repudiates” in the Bill’s Explanatory Memorandum) their allegiance to Australia” by engaging in specified conduct. This conduct variously includes:

• committing international terrorist activities using explosive or lethal devices;
• providing or receiving training connected with a terrorist act;
• financing terrorism;
• engaging in foreign incursions and recruitment;
• fighting for a declared terrorist organisation outside Australia; and
• in relation to s 35A only, conviction of an offence under either the Criminal Code (Cth) or the Crimes Act 1914 (Cth).

The essence of the repudiation of allegiance requirement of the new provisions is that a person has engaged in conduct “incompatible with the shared values of the Australian community” (as the Explanatory Memorandum puts it). While there can be no doubt about the nature of some of the physical acts that may prompt application of the provisions, the meaning of the deemed repudiation of shared Australian community values is perhaps less certain. Political subjectivity must inevitably come into play in assessing what those values are and whether they have actually been repudiated.

A previous Insider post suggested comparatively innocuous events may conceivably cause a person to be stripped of citizenship, such as a Centrelink client improperly approving their own application. The potential reach of the new provisions is particularly worrying given the risk of politicised intervention in their operation: for example, could activist opponents of an Australian Government’s decision to go to war be within its reach?

These concerns cannot be easily discounted. Submissions to the recent inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 by the Parliamentary Joint Committee on Intelligence and Security referred to the lack of a judicial process in the proposed application of ss 33AA and 35, which do not require a person to have been convicted of an offence. The suggestion is there would be a diminution in the protection of individual liberty in the administrative “finding of fact” process involved in the Minister issuing a notice for the loss of a person’s citizenship. The Law Council of Australia said Australian Security Intelligence Organisation officials would advise the Minister and assess whether a person had engaged in unlawful conduct under the Criminal Code – supplanting a normal criminal court process with an administrative one. Elaborating on the possible implications, the Law Council said the standard for determining whether a person had engaged in conduct justifying their loss of citizenship, would be “much lower than the criminal burden of proof” of guilt beyond a reasonable doubt:

[I]t is conceivable that a person could be acquitted at trial on the criminal standard and yet the Minister could find that person has renounced his or her citizenship based on the same set of facts.

The Australian Human Rights Commission said the Executive should not be passing such laws and then making judgments as to whether the laws have been breached. Other submissions to the parliamentary inquiry raised concerns along the same lines. By contrast, the Department of Immigration and Border Protection suggested more was involved in “operationalising the Act”, including cooperation between a range of relevant government departments and agencies in considering information to make applicable findings of fact, which will then be drawn to the Minister’s attention.

Acknowledging evidence that the provisions’ self-executing nature “lacks procedural fairness and circumvents the role of the court in decision-making”, the Parliamentary Joint Committee made recommendations for oversight and monitoring, including:

• six-monthly public reporting by the Government on loss or revocation of citizenship notices;
• relevant monitoring and review of the performance of the Department of Immigration and Border Protection; and
• that the Independent National Security Legislation Monitor review the operation of the revocation of citizenship provisions.

Updated The Laws of Australia Subtitle 21.6 "Justice" discusses the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth).

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