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BY SANGEETHA PILLAI

This post is the second 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 release of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the ‘Allegiance to Australia Bill’) has sparked considerable debate about the extent to which the Bill, if adopted, would pass constitutional muster. So far, much of the debate has focused on the question of whether s 33AA of the Bill – which purports to establish a ‘self-executing’ mechanism via which a person could lose their citizenship for engaging in particular offences, irrespective of whether they have been convicted by a court – would fall foul of the separation of judicial power in Chapter III of the Constitution.

Questions of whether the Bill otherwise oversteps the bounds of parliamentary power – by falling outside the scope of the heads of federal legislative power in s 51 of the Constitution, or by infringing other implied limitations on Commonwealth power – have received less attention. However, the Bill raises significant questions in these areas.

Legislative power of the Commonwealth

The Australian Constitution does not grant the Commonwealth Parliament an express power to make laws with respect to citizenship. Nonetheless, it has long been accepted that a broad power to pass such laws exists. However, the High Court has never precisely delineated the ambit of this power and its constitutional boundaries.

The Explanatory Memorandum for the Allegiance to Australia Bill states that the primary source of constitutional support for its enactment is the aliens power in s 51(xix) of the Constitution. In doing so, it relies on the idea that an alien is ‘a person lacking allegiance to Australia’.

The Explanatory Memorandum bases this reading of s 51(xix) on a 2006 case, Koroitamana v Commonwealth. This case involved the question of whether two children, born in Australia but who had never been eligible for Australian statutory citizenship, were ‘aliens’. The plaintiffs held no other citizenship. They were eligible to register as Fijian citizens, but at the time of the case had chosen not to do so, expressing their allegiance to Australia.

The High Court unanimously found that both children were aliens. In doing so, all judges emphasised the breadth of Parliament’s power under s 51(xix). Gummow, Hayne and Heydon JJ, for instance, stated that it is now a ‘settled position that it is for the Parliament, relying upon par (xix) of s 51 of the Constitution, to create and define the concept of Australian citizenship’. Gleeson CJ and Heydon J confirmed that the effect of this power means that Parliament also has some capacity to influence the constitutional meaning of alienage:

Within the limits of the concept of ‘alien’ in s 51(xix), it is for Parliament to decide who will be treated as having the status of alienage, who will be treated as citizens, and what the status of alienage, or non-citizenship, will entail.

However, as Fullagar J famously stated in the Communist Party Case, ‘the stream cannot rise above its source’. Each of the judges in Koroitamana was careful to affirm that there are boundaries to the constitutional meaning of ‘alien’ that Parliament cannot overstep.

Where these constitutional boundaries lie, however, has never been decided by the Court. Some guidance might be taken from the oft-cited statement of Gibbs CJ in Pochi v Macphee that:

Clearly the Parliament cannot, simply by giving its own definition of ‘alien’, expand the power under s 51(xix) to include persons who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word.

Unfortunately, the ‘ordinary understanding’ of the word ‘alien’ is not well settled. ‘Alienage’ has sometimes been conceived of as evidenced by allegiance to a foreign power, or an absence of allegiance to Australia, but this is by no means definitive. Indeed, a majority of the High Court accepted in Singh v Commonwealth that the constitutional ambit of the term ‘alien’ could shift over time, and that it could be influenced by a variety of factors, including statutory conceptualisations of nationality and alienage. Accordingly, the High Court has declined to definitively state the ambit of s 51(xix), preferring instead to determine, on a case by case basis, whether particular legislation attracts the support of the power or not.

So far, challenges brought against Commonwealth legislation or executive action on the basis that the aliens power has been exceeded have overwhelmingly failed. Both persons born in Australia but not granted citizenship and long-term non-citizen residents have been held to qualify as aliens. The High Court has accepted that, based on current citizenship legislation, the constitutional status of ‘alien’ has become synonymous with the lack of statutory citizenship.

However, the High Court has never had to consider the question that the Allegiance to Australia Bill poses: to what extent a legislative decision to strip a person of their statutory citizenship would convert them into a constitutional alien.

There are sound reasons to suspect that, in at least some instances, this would present no constitutional problem. The boundaries of statutory citizenship have changed before, and in some cases this has meant that people previously qualifying as statutory citizens have lost that status. For example, when Papua New Guinea gained independence in 1975, a large number of Papuans, who had previously been Australian citizens, were deprived of that citizenship. The High Court held that the consequence of this was to render them constitutional aliens.

The configuration of citizenship revocation in the Allegiance to Australia Bill, however, is quite different. Accordingly, if the Bill is passed, it may provide the High Court with the opportunity to venture into previously uncharted constitutional waters. For example, it is not at all clear that a person who loses their statutory citizenship under s 35A(3)(d) of the Bill, on the basis of having been convicted under s 29 of the Commonwealth Crimes Act of damaging Commonwealth property in the course of protest, would constitutionally become an alien as a consequence. Even if the idea that ‘alienage’ means a lack of allegiance to Australia is accepted, it is by no means clear that the Bill’s statement in s 32 that the conduct that triggers citizenship loss is ‘inconsistent with allegiance to Australia’ would be constitutionally determinative of that question.

While other heads of power – in particular the defence power in s 51(vi) of the Constitution – may provide supplementary support for parts of the Bill, it is not clear that such powers would support the Bill in its entirety. A number of grounds for citizenship deprivation under the Bill do not have a clear cut connection with a head of power other than s 51(xix). For example, s 35A(3)(e) of the Bill provides for the automatic loss of citizenship where a person is convicted of damaging Commonwealth property, and s35A(3)(d) provides for such loss where a person is convicted of entering or remaining in particular areas declared under s 119.3 of the Criminal Code. It is not clear that either of these applications would have a sufficient connection with the defence power, or with any other Commonwealth head of power.

Rights held by ‘the people of the Commonwealth’

A related question arises as to the extent to which Australian citizens may be able to derive any constitutional protection against the operation of the Allegiance to Australia Bill, on the basis that they fall within the constitutional category of the ‘people of the Commonwealth’.

Sections 7 and 24 of the Constitution provide that ‘the people’ of the States and of the Commonwealth, respectively, must directly choose the members of the federal Parliament. This requirement has the potential to form the basis for two implied constitutional protections that may be relevant to the constitutionality of the Allegiance to Australia Bill: that there might be a constitutionalised form of citizenship, and that ‘the people’s’ constitutionally protected right to vote might protect them from illegitimate stripping of their citizenship.

Constitutional citizenship

In the context of the Allegiance to Australia Bill, the stronger of these potential protections (but also the less certain) is the idea that a kind of constitutional citizenship, independent of the statutory status, flows from membership of the ‘people of the Commonwealth’. While the High Court has never been required to determine the question, the idea that the phrase ‘the people of the Commonwealth’ may signify a kind of constitutional citizenship has been hinted at by a number of individual judges, and was directly advanced in obiter dicta by McHugh J in Hwang v Commonwealth. In that case, his Honour stated that the phrase ‘the people of the Commonwealth’ is ‘a synonym for citizenship of the Commonwealth’. McHugh J went on to suggest that the notion of ‘constitutional citizenship’ held by the ‘people of the Commonwealth’ places limitations on Parliament’s generally broad power to determine which persons are ‘citizens’, and which are ‘aliens’.

A challenge that confronts this line of reasoning is that there is no obvious constitutional reference point to determine which people constitutionally qualify as ‘people of the Commonwealth’. McHugh J acknowledged this, and suggested that, as is the case with the constitutional meaning of ‘alien’, membership of the constitutional category of ‘people of the Commonwealth’ should be determined by reference to statutory citizenship. However, his Honour stressed that ‘Parliament does not have unlimited power to declare the conditions on which citizenship or membership of the Australian community depends’. In McHugh J’s view, Parliament would be constitutionally unable to ‘exclude from citizenship, those persons who are undoubtedly among “the people of the Commonwealth”’.

It is by no means certain that McHugh J’s conceptualisation of a constitutional citizenry composed of ‘people of the Commonwealth’ will gain the support of a majority of the High Court. To date, the High Court has not needed to confront this question, as it has accepted that the statutory conceptualisation of citizenship in the Australian Citizenship Act falls within the bounds of Parliament’s constitutional authority. However, the Allegiance to Australia Bill radically alters the legislative model of citizenship. As such, if it is passed, it may serve as a catalyst for a broader judicial consideration of the argument advanced in Hwang.

If McHugh J’s approach were ultimately adopted by the High Court, the impact of this on the constitutional validity of the Allegiance to Australia Bill is difficult to predict with accuracy. The challenge will lie in determining which affected citizens, if any, qualify as ‘undoubtedly among “the people of the Commonwealth”’. A strong case for constitutional protection could likely be made with respect to Australian citizens who reside in Australia, where the conduct triggering citizenship loss does not involve evident disloyalty or harm to Australia or its citizens. Examples of conduct in this category might include damaging Commonwealth property, travelling to a ‘declared area’ under s 119.2 of the Commonwealth Criminal Code for an innocent but nonetheless unlawful purpose (such as visiting friends or undertaking a religious pilgrimage), or providing humanitarian or medical aid to a listed terrorist organisation whose activities are not directed at Australia in any way (such as the Kurdistan Workers Party, which actively seeks to resist the activities and expansion of IS). It is, however, of course possible that the ‘undoubted people of the Commonwealth’ could be drawn more broadly than this, or more narrowly (such as by excluding Australian citizens who also possess a foreign citizenship). In the latter case, even if a constitutional concept of citizenship is found to exist by the High Court, it may offer no protection against the Allegiance to Australia Bill which, in its present form, applies only to Australian citizens with dual citizenship.

Constitutional protection of the right to vote

The existence of a constitutional concept of citizenship is by no means certain. However, even if there is no such concept, some protection against citizenship loss under the Bill, or against the consequences of such loss, may nonetheless flow from the requirement in ss 7 and 24 of the Constitution that Parliament be ‘directly chosen by the people’. This requirement is given effect by the Commonwealth Electoral Act 1918. The Electoral Act extends a right to vote to Australian citizens, rather than to the ‘people of the Commonwealth’. This is not a problem so long as those terms are coextensive, as is currently the case.

The Allegiance to Australia Bill, however, has the potential to operate in a manner that would break the coextensivity between statutory citizenship and membership of the ‘people of the Commonwealth’. For example, it is doubtful whether a person would cease to be one of the ‘people of the Commonwealth’ merely for committing a minor crime that does not demonstrate any lack of allegiance to Australia. Many of the convictions that would trigger automatic citizenship loss under s 35A of the Bill (such as those outlined above) fit into this category.

If a person convicted of a minor offence of this nature were to lose their citizenship under s 35A, they would lose their right to vote under the Electoral Act, while arguably remaining one of the ‘people of the Commonwealth’ for constitutional purposes. This may contravene ss 7 and 24 of the Constitution.

The High Court held in Roach v Electoral Commissioner that it is within Parliament’s power to temporarily suspend the right to vote for citizens or ‘people of the Commonwealth’. However, in order to be constitutionally permissible, any such suspension must be for a legitimate purpose, and be legislated for in a manner proportionate to this purpose. In Roach, the High Court upheld the suspension of federal voting rights for prisoners serving sentences of three years or longer, on the grounds that ‘serious offending’ could warrant temporary suspension of some of the rights of membership. However, it struck down a provision that extended the denial of these rights to all prisoners serving a custodial sentence of any duration. This, in the view of the majority, did not represent sufficient seriousness of criminal conduct to justify even a temporary suspension of voting rights.

The Bill’s goal of fostering national security may qualify as a legitimate purpose. However, the manner in which it pursues this purpose is not likely to be proportionate to this goal. There are several reasons for this. The first is that the range of conduct that triggers citizenship loss is far wider than is necessary. Automatic citizenship loss flows from conviction for a broad range of offences, many of which have little or nothing to do with terrorism, and do not demonstrate any disloyalty or lack of allegiance to Australia. For example, the Bill provides for the automatic stripping of citizenship for a person convicted of a minor property crime, with no connection to terrorism. The same result would follow for a person convicted of possessing a ‘thing’, such as a book or downloaded file from the Internet, which is in some way connected with terrorism. The Bill also provides for the automatic loss of citizenship for citizens convicted of offences without imprisonment, or with imprisonment for only a short period of time, or for conduct that has not led to a conviction at all. This opens up the consequent possibility of exile from Australia, with a lower threshold than that which applies to the deportation of non-citizens under Division 9 of the Migration Act 1958 (Cth). This is inconsistent with the High Court’s finding in Roach that even temporary suspension of the right to vote can only apply where a person has been committed a ‘serious offence’, evidenced by the duration of their sentence.

A second reason that the Bill’s removal of citizenship and voting rights is unlikely to amount to a proportionate pursuit of a national security purpose is that the Bill establishes processes for citizenship stripping that are inappropriate, unfair and inconsistent with the standards that apply in other national security legislation. For instance, citizenship loss is purported to occur automatically, without the need for a decision by a Minister. Furthermore, the rules of natural justice are excluded for all the exercises of ministerial power in the Bill. These rules routinely apply to other exercises of ministerial power that have a similarly onerous impact on the person affected, including decisions to deport non-citizens on the basis of national security or engagement in criminal conduct under Division 9 of the Migration Act. Accordingly, the express and implied exclusion of natural justice in the Bill is unwarranted and disproportionate. The same arguments apply with respect to the Bill’s exclusion of s 39 of the ASIO Act, which also applies in the case of non-citizens facing deportation under Division 9 of the Migration Act. That provision precludes Commonwealth agencies from taking, refusing to take or refraining from taking prescribed administrative action on the basis of advice from ASIO that does not amount to a security assessment made under the ASIO Act.

Conclusion

The breadth of parliamentary discretion when legislating with respect to Australian citizenship has been repeatedly recognised by the High Court. In light of this, it is likely that the constitutional framework would support some expansion of the existing grounds for the revocation of statutory citizenship. However, the Court has also affirmed the existence of outer constitutional limits that curtail the exercise of legislative power in this area. There is a strong possibility that if the Allegiance to Australia Bill is passed, it will give rise to the opportunity for the Court to further explore where these limits lie.

Sangeetha Pillai is a Lecturer in the Faculty of Law at Monash University. Parts of this post draw on a submission by Shipra Chordia, Sangeetha Pillai and George Williams to the Parliamentary Joint Select Committee on Intelligence and Security Inquiry into the Australian Citizenship Amendment (‘Allegiance to Australia’) Bill 2015.

Suggested citation: Sangeetha Pillai, ‘The Allegiance to Australia Bill and the Constitution: Legislative Power and Membership of the Constitutional Community’ on AUSPUBLAW (21 July 2015) <https://auspublaw.org/2015/07/the-allegiance-to-australia-and-the-constitution/>.