On Wednesday (24 June 2015), the Australian government finally introduced the much debated and speculated upon proposed changes to Australian citizenship legislation. The changes proposed in the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Allegiance Bill) will primarily give authorities the power to revoke the Australian citizenship of people who hold dual citizenship convicted of terrorism offences.
Key Changes Proposed by the Allegiance Bill
The Allegiance Bill proposes three mechanisms that will lead to automatic loss of citizenship:
- There is a new provision where a person renounces their citizenship if they act inconsistently with their allegiance to Australia by engaging in certain terrorist conduct;
- There is an extension to the current loss of citizenship provision for a person fighting in the armed forces of the country at war with Australia. Under the extension a person ceases to be an Australian Citizen if they fight for, or are in the service of, a specified terrorist organisation overseas; and
- A new loss of citizenship provision if the person has been convicted of a specified terrorism offence by an Australian court.
The above three key changes, it should be noted, are all automatic, requiring no ministerial or executive action to apply; and, as per the Minister for Immigration and Border Security's second reading speech, are all proposed under the caveat that:
"In accordance with Australia's international law obligations, no-one will lose citizenship under any of these provisions unless they are a national of another country".
This meaning the law, once enacted, can only be applied to those already having or entitled to dual citizenship.
Policy Behind the Changes Proposed
In introducing the Allegiance Bill into Parliament, the Minister stated that it was the implementation of the Australian government's promise ". . . to address the challenges posed by dual citizens who betray Australia by participating in serious terrorism related activities".
In his speech, the Minister focused on the view that the proposed legislation emphasised ". . . the central importance of allegiance to Australia in the concept of citizenship". The Minister saying also that because the world had changed ". . . so our laws should change accordingly". The Minister then announced a purpose clause to be inserted into the Allegiance Bill stating that:
". . . by these amendments, the parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the safety and shared values of the Australian community, demonstrate that they have severed that bond and renounced their allegiance to Australia".
The purpose clause which uses concepts from the current Citizenship Actpreamble is effectively a reworked definition of "Australian citizenship" as it is seen by the government, with the government stating its intent, to be implemented by the changes in the Allegiance Bill, is the protection of the community and the upholding of the communities' values, rather than punishing people for terrorist or hostile acts.
More interestingly with respect to the focus on the term "allegiance" is the view expressed by the Minister that:
"The concept of allegiance is central to the constitutional term 'alien' and to this bill's reliance upon the aliens power in the Constitution. The High Court has found that an alien is a person who does not owe allegiance to Australia. By acting in a manner contrary to their allegiance, the person has chosen to step outside of the formal Australian community."
This seems to be foreshadowing how the government might respond to any challenge to the legislation in the courts, particularly in the High Court.
Further, because the proposed changes are delivered in sections of the Citizenship Act which are "automatic" or "self-executing", that is, rather than requiring a decision by the Minister, the sections operate once a situation exists or criteria are met - they are seen as avoiding opposition from some of the government's senior ministers and legal experts who argued issues and challenges would arise legally and constitutionally with respect to the separation of powers.
Comment and Reaction
The ABC reports Constitutional lawyer, Professor Greg Craven as saying:
". . . a person's citizenship could lapse or self-cancel if they fell under a certain category.
There's no action by a minister, there's no action by the executive Government of the Commonwealth, and that's important because it means that you're not having an executive officer exercising judicial power,
If your citizenship did lapse in that way, and you presented yourself in Australia, you would be perfectly free to say, 'No, that's not the case, I didn't do it, I wasn't there, I wasn't a member of that body', and ultimately that would have to be determined by a court."
In this way, Professor Craven, is reported as saying the matter is open for a court appeal and would counter concern the process could be abused:
"It's a fundamental distinction, because in Australian law only judicial officers can exercise judicial power, . . "
A contrary view and one that points to evidence issues, is that of Greg Barns from the Australian Lawyers Alliance whose criticism as reported by The ABC is:
"On who's evidence are we going to rely? It's unlikely to work, it's certainly unfair, and it's unnecessary. . . There's no doubt there are still constitutional problems with this bill, and that's one of them. . . . It is not the executive in our system of governance to assume the role of the judiciary, and that's what it looks like."
The Federal opposition is reported as saying it will support updating the citizenship act to automatically strip citizenship from Australian terrorists with dual citizenship as long as it doesn't render people stateless. The Federal opposition is not so supportive of the idea of the law applying retrospectively, a possibility floated by the Prime Minister, the view of the opposition being it should be examined by the Parliamentary Joint Committee on Intelligence and Security:
"It's not an idea that we would normally support ... but we'll look at what the proposal actually contains today and the appropriate place for that to now go is the committee and we'll work through that issue on the committee. . . It is a question that needs to be examined carefully by the committee."
The Bill is expected to pass the House of Representatives and the Senate where the opposition is expected to support it.
References
Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and 2nd Reading Speech
Proposed terror laws open to challenge, says legal expert (The Australian - 23 June 2014)Jnr
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