Screen Shot 2015-07-21 at 6.07.57 pmBY ALEX REILLY and PETER BURDON

This post is the third in a special series providing expert analysis of the several dimensions of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The Parliamentary Joint Committee on Intelligence and Security is currently conducting an inquiry into the Bill.

The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 significantly broadens the grounds for revocation of citizenship, and foregrounds ‘allegiance’ as the primary indicator of who is and who is not a citizen. In this post, we argue that in doing so, it profoundly alters the role of citizenship in the formation of the Australian community. It creates an ‘us and them’ mentality that is reminiscent of Samuel Huntington’s classic ‘Clash of Civilizations’. It is counter-productive to responding to the deep alienation some citizens feel from the state that leads them to participate in radical causes.

Currently, the only ground for the automatic cessation of citizenship is if a person ‘serves in the armed forces of a country at war with Australia’. The current Bill extends the circumstances by which citizenship automatically ceases to include engagement in a range of activities related to terrorism regardless of whether they are crimes in themselves, and without requiring a conviction for the commission of any offence. Citizenship also automatically ceases if a person engages in a range of offences in the Criminal Code.

Changing the meaning of citizenship

Citizenship plays a number of roles in a state. In Citizenship and Immigration, Christian Jopke describes three dimensions of citizenship.

First, it is a status that links people with particular states so that in relations between states it is possible to know which state is responsible for which people. Second, citizenship is associated with a range of rights and responsibilities. In the Australian context, citizens have a range of civil, political and social rights. They have the benefit of laws that ensure their equality in Australian society, a welfare safety net that protects their basic economic needs and they have the right to participate fully in the political system of the state. In return, the state expects allegiance from citizens, and in Australia, requires citizens to vote in federal elections. And finally, citizenship is associated with identity. To be the citizen of a particular state aligns a person with the values associated with a particular state. As an identity, it has been used at times as a means of excluding people who do not fit the required ethnic, religious or other criteria for state identity.

The proposed changes to the Australian Citizenship Act 2007 (Cth) will affect each of the dimensions of citizenship. It shifts the boundary for the designation of citizenship status, by requiring citizens to refrain from a range of criminal offences in Australia and overseas that had not previously been linked to citizenship. Thus, citizenship in itself no longer links a person with a particular state. The person must also refrain from engaging in certain criminal conduct to retain the status. The Bill reinforces a particular identity as Australian by associating citizenship with a set of values. It is possible for a person to have their citizenship revoked for engaging in conduct that the government deems unacceptable. That conduct is associated with particular groups in the Australian community, placing their identity as citizens into question. Finally, the Bill weakens the most fundamental of citizenship rights, security of residence. The Bill affects Australian citizenship in all its dimensions in order to use citizenship as a counter-terrorism measure. Do the benefits of doing so justify these changes to the Australian notion of citizenship?

Citizenship should not be used as a counter-terrorism measure

There is certainly an appeal to using citizenship as a counter-terrorism measure: a Fairfax poll revealed that 83 per cent of Australians support the revocation of citizenship from people engaged in terrorist activity and an alarming 46 per cent supported the revocation of the citizenship of the children of terrorists.

There are, however, strong reasons to resist this use of citizenship.

Most fundamentally, from a global perspective, if citizenship is to play a productive role in the relationship between states, each state must take responsibility for the actions of its own citizens. States must, in other words, take the status of citizenship seriously. In principle, it is inappropriate to strip Australians of their citizenship when they engage in terrorist activity overseas because for many of them, their values, attitudes and actions are formed in Australia. This was recognised by Andrew Colvin, (then Acting) AFP Commissioner:

Look … many of the people that we’re interested in this particular operation are Australian citizens… So, in terms of their ethnicity, I think we need to understand that these are people who are in many cases born and bred Australians.

Stripping citizenship from individuals means that the state is not able to contain individuals, and work towards their rehabilitation. In Denmark, engaging with citizens who have participated in terrorist activity overseas has been used as an effective counter-terrorist response. In the city of Aarhus, police have been offering mentoring, psychological counselling and other practical help to foreign fighters returning from Syria. While too early to draw conclusions, in the last year, the number of jihadists leaving the city has dropped dramatically.

It is Australia that must challenge the values that leads its citizens to participate in terrorist activity. National identity must be formed through engagement with citizens, not simply imposed upon them. The proposed citizenship laws allow the government to avoid important questions concerning what compels Australian born citizens to join terrorist organisations. The state is, in a sense, cleansed of the conduct of its citizens and the problem is passed on to countries without the resources to implement an effective response. Worse still, experience in the UK and US illustrates that former citizens are rendered vulnerable for extra judicial killing.

Currently the only basis for the revocation of citizenship is in s 35(1)(b): ‘serv[ing] in the armed forces of a country at war with Australia’. Extending the grounds of revocation to involvement in terrorist activity captures a much wider range of activity that may not threaten the Australian state. Terrorism is a complex issue. The enemy is less easy to determine than in conventional war. Although terrorist attacks may be aimed at states, they may also be aimed at other groups fighting in a sectarian conflict across state borders. This is evident in the Middle East where different Islamic groups are fighting each other to promote a particular version of an Islamic state. The activities of these groups are not aimed directly at Australia. Given the complicated and disperse threat of terrorism, using a state-based sanction such as the removal of citizenship as a response to terrorism is brought into question.

Stripping citizenship may detract from existing counter-terrorism measures

Removing citizenship adds nothing to existing counter-terrorism measures and may, indeed, detract from them. Since 2001, the law has developed extensive regulation targeting citizens who engage in terrorist activity, including laws that criminalise engaging in sectarian conflicts overseas as foreign fighters, and outlawing membership of organisations that are designated as terrorist organisations. The extent of these laws has been controversial, but they target specific behaviour and respond directly to the issues which the government is proposing to target through citizenship laws.

Terminating citizenship is a blunt instrument for responding to the highly nuanced issue of terrorism. The automatic cessation of citizenship in the Bill responds to a wide range of activities, which differ markedly in their seriousness. It is markedly different to revoke the citizenship of someone who has used ‘explosive and lethal devices’ and a person who has received training from a terrorist organisation or damaged Commonwealth property. There is, then, the possibility of grave injustice, and it is not surprising to find lawyers and human rights advocates highly critical of the range of activities leading to revocation in the Bill.

Removal of citizenship is likely to facilitate terrorism rather than counter it. Removing the citizenship from foreign fighters so that they are not able to return to Australia leaves fighters free to continue to engage in terrorist activity outside of the scrutiny of the Australian police and intelligence agencies. Australia is effectively relinquishing responsibility for the activities of foreign fighters and leaving it to the international community to respond to their activities. At the same time, the person will continue to have a relationship to Australia through connections with Australian relatives. Removing citizenship is only likely to increase a foreign fighter’s radicalisation, and turn their attention to Australia as a focus of their anger.

Associate Professor Alex Reilly is the Director of the Public Law and Policy Research Unit, University of Adelaide. Dr Peter Burdon is a Senior Lecturer at the Adelaide Law School, University of Adelaide. 

Suggested citation:  Alexander Reilly and Peter Burdon, ‘Revoking citizenship for engagement in terrorist activity weakens Australian citizenship for no positive end’ on AUSPUBLAW (22 July 2015) <https://auspublaw.org/2015/07/revoking-citizenship-for-engagement-in-terrorist-activity/>.