Screen Shot 2015-07-19 at 11.57.42 amBY RAYNER THWAITES AND HELEN IRVING

This post is the first in a special series that will provide 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.

On 24 June 2015, following months of speculation and controversy, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was introduced into the Australian Parliament. The Bill envisages three new mechanisms for loss of Australian citizenship: so-called ‘renunciation by conduct’; revocation for fighting for, or being in the service of, a terrorist organisation, and revocation following conviction for terrorism and ‘certain other’ offences. Of these, the first, contained in the proposed s 33AA, rings the loudest alarm bells, constitutional and otherwise.

Prior to the Bill’s release, there were suggestions that it might confer discretion on the Immigration Minister to strip citizenship from Australians suspected of having committed a terrorism-related offence. A leak to the Sydney Morning Herald revealed that the proposal had attracted strenuous criticism within the Cabinet room, as well as from the Opposition. The Minister, it was objected, should not have the power effectively to determine criminal guilt in the absence of a criminal trial. Such a provision, opponents explained, would be at risk of constitutional invalidity if challenged. The High Court has consistently held that the executive exercise of judicial power breaches the separation of powers.

It is clear that, in framing the Bill, the government took notice of these constitutional concerns. Section 33AA reveals an attempt to avoid conferring judicial power on the executive. It provides for automatic loss of citizenship if a person ‘acts inconsistently with their allegiance to Australia’ by engaging in certain listed conduct. The provision, it appears, is intended to be ‘self-executing’, avoiding a ministerial determination at the same time as keeping the courts out of the picture.

However, in attempting to conform to the Constitution, the alternative adopted in s 33AA is a case of jumping out of the frying pan and into the fire. In this post, we explain that s 33AA, as currently drafted, raises serious legal uncertainty around its operation, has not resolved the possible separation of powers problems with the proposal, and that the Bill creates a system of first- and second-class citizens.

Can the law be ‘self-executing’?

The conduct listed in s 33AA as grounds for citizenship ‘renunciation’ includes: engaging in terrorist activities using explosive or lethal devices; engaging in a terrorist act; providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act; directing the activities of a terrorist organisation; recruiting for a terrorist organisation; financing terrorism; financing a terrorist; and engaging in foreign incursions and recruitment. If such conduct is ‘undertaken’, the Explanatory Memorandum to the Bill tells us, the section will operate automatically, so that a person ‘can by their own conduct cease to be an Australian citizen.’

What does it mean to say a person loses citizenship ‘by their own conduct’? The theory of the self-executing statute upon which the provision relies has been subjected to significant criticism in the Australian courts. The essence of the criticism is the common-sense observation that laws do not apply themselves. As a matter of practical reality, somebody would need to reach a determination that the conduct triggering revocation of citizenship has been ‘undertaken’. Nonetheless, as currently drafted, the Bill is silent on:

  • who is to make the critical determination that the conduct has occurred; and
  • by what process is he or she to arrive at that determination.

The legal uncertainty attending these questions is deepened by legal uncertainties about the conduct that triggers revocation under the Bill.

What conduct triggers revocation under s 33AA?

The forms of conduct listed in s 33AA are defined by ‘words and expressions’ that are stated to have the ‘same meanings’ as provisions of the Commonwealth Criminal Code, enumerated in the section. These, it appears, are intended to be merely definitional, ‘borrowed’ from the definitions attached to offences found in the Code.

But how can conduct that attracts extremely serious penalties under the Code be treated as distinct from the relevant offences? How can it be separated from the proof of intention, and the defences attached to the offences? If the prescription that conduct triggering revocation merely has the ‘same meanings’ as the Criminal Code offences, and the qualifications that apply to these offences are not picked up, then an Australian can have his or her citizenship revoked for conduct that does not amount to an offence under the Criminal Code. An IT trainer, a flight instructor or the instructor at a shooting range, for example, could be stripped of Australian citizenship for ‘providing training connected with … a terrorist act’, if it turns out that the training is later put to such use.

Uncertainties regarding how conduct leading to loss of citizenship is to be determined may have a chilling effect on otherwise lawful conduct.

Continuing constitutional uncertainty

If the qualifications that apply to these criminal offences do constitute an element of the ‘conduct’ triggering revocation, how is that conduct distinct from a determination that the person has committed the relevant offence? How can a determination that someone was ‘financing a terrorist’ under s 33AA(2)(g) of the Bill, for example, not also be a determination that he or she has committed the relevant offence?

It cannot. A determination that such conduct has occurred must be made. It cannot be made by no-one, that is, it cannot be ‘self-executing’ as the government claims. There are strong arguments that, under our constitutional arrangements, such a determination amounts to the exercise of judicial power. As such, it must be made by a court of law. As the government has already accepted, it cannot be made by executive decision.

If a judicial determination cannot be avoided, this must mean a trial, incorporating the presumption of innocence, the opportunity to hear the evidence and to present a defence, and the right to apply for appeal.

‘You may not even know you are a dual national …’

Mindful of warnings that Australia would breach its international law obligations if citizenship revocation led to statelessness, the government has taken care that the Bill’s provisions apply only to dual nationals. But, again, an attempt to conform to the law has created further legal quagmires.

A very large number of Australian citizens also hold another nationality. As we learn from the Department of Foreign Affairs and Trade “Smartraveller” website

Many Australians are migrants, children of migrants or were born overseas. This means that many Australians are dual nationals or could be regarded as dual nationals by another country. You may not even know that you are a dual national … Whether you’re a dual national depends on the laws of the country involved. You could be considered and treated as a national by another country even if you don’t accept that nationality.”

If the indeterminate scope of the conduct giving rise to loss of citizenship is already a concern, uncertainty about the status of persons to which it would apply only adds to the confusion.

Dual citizens as second class citizens

The Bill’s purpose includes censure for certain forms of criminal conduct, ‘incompatible with the shared values of the Australian community’, demonstrating that those who commit it have severed their bond with Australia and ‘repudiated their allegiance.’ But the fact that only dual citizens are vulnerable makes citizenship revocation morally arbitrary in a way that the criminal law is not. Two Australians could have committed an identical offence in identical terms. Only the dual citizen could be stripped of his or her Australian citizenship. The Bill establishes ‘second-class’ citizens, liable to suffer additional penalties and vulnerable to detrimental measures not suffered by sole nationals. Whether or not this affects the legal validity of the Bill, it is corrosive of the rule of law, of equality between citizens, and of the ‘common bond’ between all Australians that the Bill is intended to protect.

Conclusion

As currently drafted, s 33AA provides that a dual citizen’s legal status as an Australian citizen is vulnerable to removal for ill-specified conduct, via a non-specified process, attended by non-specified legal protections. The Bill deepens, rather than addresses, concerns about the extent of executive power voiced in the lead-up to its introduction.

Rayner Thwaites is a Senior Lecturer at the Sydney Law School, University of Sydney. Helen Irving is a Professor at the Sydney Law School, University of Sydney.

Suggested citation: Rayner Thwaites and Helen Irving, ‘The Citizenship Amendment Bill: Out of the Frying Pan and into the Fire’ on AUSPUBLAW (20 July 2015) <https://auspublaw.org/2015/07/the-citizenship-amendment-bill/>.