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Australian Citizenship Amendment (Allegiance to Australia) Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 15, 2015-16 2 SEPTEMBER 2015

Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 Margaret Harrison-Smith Law and Bills Digest Section

Cat Barker Foreign Affairs, Defence and Security Section

Contents

The Bills Digest at a glance ................................................... 3

Purpose of the Bill ............................................................... 4

Background ......................................................................... 4

Cessation of Australian citizenship under current laws .......... 4

Context in which the Bill has been introduced ........................ 4

Earlier announcement of proposed changes to citizenship laws ........................................................................ 5

Committee consideration .................................................... 6

Parliamentary Joint Committee on Intelligence and Security .................................................................................... 6

Senate Standing Committee for the Scrutiny of Bills .............. 6

Parliamentary Joint Committee on Human Rights .................. 8

Policy position of non-government parties/independents ..... 9

Position of major interest groups ......................................... 9

Constitutionality ...................................................................... 9

Breadth of the new grounds for citizenship cessation .......... 10

Process by which cessation occurs ........................................ 11

An alternative model ............................................................. 11

Financial implications ........................................................ 11

Statement of Compatibility with Human Rights .................. 11

Key issues and provisions................................................... 12

Renunciation by engaging in specified conduct .................... 12

Issue: Application or otherwise of fault, defences, exemptions and extensions of criminal responsibility ........ 12

Date introduced: 24 June 2015

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Issue: Lack of discretion and absence of criminal law protections .......................................................................... 13

Issue: Overlap with and relationship to proposed section 35A (cessation upon conviction) ............................. 14

Issue: Application to children .............................................. 14

Cessation through service outside Australia in the armed forces of an enemy country or a declared terrorist organisation ........................................................................... 15

Serving in armed forces at war with Australia .................... 15

Fighting for, or being in the service of, a declared terrorist organisation .......................................................... 16

Issue: Basis on which organisations are declared ............... 16

Issue: Breadth of conduct captured .................................... 16

Other issues ......................................................................... 17

Cessation upon conviction of terrorism and certain other offences ................................................................................. 17

Issues: Range of offences and automatic application ......... 18

Provisions common to all grounds for cessation ................... 19

Minister to give notice ........................................................ 19

Minister’s power to rescind notice and exempt person ..... 19

General provisions relating to the Minister’s powers ......... 19

Power to revoke the citizenship of dependent children ..... 20

No resumption of citizenship .............................................. 20

Issue: Exclusion of the rules of natural justice and usual notice provisions ................................................................. 20

Issue: No duty to consider a request to rescind a notice of citizenship cessation ....................................................... 21

Issue: Use of intelligence information ................................. 21

Application provisions ........................................................... 22

Retrospectivity .................................................................... 22

Broader issues relating to the Bill .......................................... 23

Do the benefits of additional citizenship cessation powers outweigh the costs? ............................................... 23

Could the threats the Bill aims to address be dealt with by other means? .................................................................. 23

Practical consequences: potential statelessness, refoulement and prolonged or indefinite detention .......... 24

Two classes of Australian citizen ......................................... 25

Comparability to the laws of other jurisdictions ................. 25

Constitutionality of the Bill .................................................. 26

Can a law really be ‘self-executing?’ ................................... 27

Judicial and administrative review ...................................... 28

Concluding comments ....................................................... 29

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The Bills Digest at a glance • The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Bill) will amend the Australian Citizenship Act 2007 (Citizenship Act) to provide for ‘automatic’ cessation of the Australian citizenship (including that obtained at birth) of a dual national where that person:

- renounces their Australian citizenship by engaging in certain conduct relating to terrorism and ‘foreign incursions’ - fights for, or is in the service of, a ‘declared terrorist organisation’ outside Australia (expanding an existing provision concerning serving in the armed forces of a country at war with Australia) or - is convicted of a specified offence. • The Citizenship Act currently provides for loss of a dual national’s Australian citizenship in very limited

circumstances. The Bill represents a significant expansion of the circumstances in which Australian citizenship may be lost.

• The Government states that the Bill is part of ‘a multi-faceted approach’ to countering the threats to national security posed by an increasing numbers of foreign fighters, known sympathisers and supporters of extremists and potential terrorists. The Australian Labor Party has provided ‘in-principle’ support for changes to citizenship laws in this context. The Australian Greens have been critical of the Bill.

• Stakeholders recognise the need for the Government to introduce additional measures to adapt to new national security threats, and some are accepting of the further proposition that citizenship cessation may be an appropriate measure in some circumstances. However, most do not support the Bill in its current form and have recommended it either not be passed, or be significantly amended before proceeding.

• Issues canvassed in this Digest include those associated with:

- the ‘automatic’ nature of the proposed cessation provisions, including concerns about constitutionality, lack of clarity as to the operation of the law, and potentially disproportionate negative consequences that may arise

- the breadth of the proposed cessation provisions, such as the range of conduct or offending they would capture, their application without regard to the particular circumstances of each case, and their potential application to children

- how the provisions will operate in practice, including the grounds on which it is determined that a person has engaged in conduct, the exclusion of the rules of natural justice and limited opportunities for judicial and administrative review and

- the practical consequences of the proposed laws, such as instances in which a person cannot return to another country of nationality and may be subject to prolonged or indefinite detention in Australia. • These issues reflect concerns raised by a range of stakeholders, including peak professional legal bodies, leading constitutional lawyers, human rights proponents and community representative bodies, as well as

the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills. The Parliamentary Joint Committee on Intelligence and Security has been inquiring into the Bill and is due to report on 2 September 2015.

• Several stakeholders have recommended an alternative model be adopted if a new mechanism for citizenship cessation is to be enacted, under which citizenship revocation could occur only following a relevant conviction, would not be automatic but based on a further decision of a court or the Minister, the rules of natural justice would apply and revocation decisions would be subject to judicial and merits review.

• Against this background, a careful assessment would seem to be warranted before the Bill proceeds further.

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Purpose of the Bill The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Bill) would amend the Australian Citizenship Act 2007 (Cth) (Citizenship Act) to provide for automatic cessation of the Australian citizenship (including the Australian citizenship by birth) of a person who is also a national or citizen of another country (a dual national) where that person:

• renounces their Australian citizenship by engaging in specified conduct inconsistent with their allegiance to Australia (item 3 of the Bill, proposed section 33AA)

• fights for, or is in the service of, a ‘declared terrorist organisation’ outside Australia (item 4 of the Bill, proposed section 35) or

• is convicted of a specified offence under the Criminal Code (Cth) or the Crimes Act 1914 (Cth) (item 5 of the Bill, proposed section 35A).

Background Cessation of Australian citizenship under current laws Under the Citizenship Act as it currently stands, there are four main ways a person’s Australian citizenship may cease. Specifically, where:

• a person explicitly renounces their citizenship in an application approved by the Minister for Immigration and Border Protection (the Minister)

• the Minister revokes the person’s citizenship on the basis of a conviction for an offence relating to fraud in the course of obtaining Australian citizenship, or for conviction for certain offences after applying for, but before being granted, Australian citizenship

• the Minister revokes the person’s citizenship for failure to fulfil residence conditions associated with becoming an Australian citizen or

• the person is a national or citizen of another country and serves in the armed forces of a country at war with Australia; this is a ‘self-executing’ provision, that is, it applies automatically at the time the person’s service commences.1

The first and last of these apply to Australian citizens by birth; the Ministerial revocation provisions do not. If a person ceases to hold Australian citizenship for any of the reasons outlined above, the Minister may revoke the Australian citizenship of any dependent children provided certain conditions are met, including that the child would not be rendered stateless.2

A June 2015 report by the Australian National Audit Office states that Australian citizenship has been revoked in only 16 cases over the 66 years in which Australia has offered citizenship.3 The provision under which a person’s citizenship ceases due to service in a foreign armed force has reportedly never been used.4

The proposed amendments in the Bill represent what has been described by the Director of the Centre for International and Public Law, Professor Kim Rubenstein, as ‘a major change to the current Citizenship Act, in that the current Act only has extremely limited ways in which a person can lose their citizenship’.5

Context in which the Bill has been introduced Current terrorism threats identified by the Australian Government and other Western governments include those associated with their nationals fighting with overseas terrorist and insurgent groups (‘foreign fighters’) and different forms of ‘home-grown’ terrorism. While the foreign fighter phenomenon is not new, a range of factors,

1. Australian Citizenship Act 2007 (Citizenship Act), sections 33, 34, 34A and 35, accessed 29 August 2015. 2. Ibid., section 36. 3. Australian National Audit Office (ANAO), Verifying identity in the Citizenship Program: Department of Immigration and Border Protection, Audit report, 47, 2014-15, ANAO, Barton, ACT, 2015, accessed 29 August 2015.

4. T Abbott (Prime Minister), P Dutton (Minister for Immigration and Border Protection) and G Brandis (Attorney-General), Transcript of joint press conference, Parliament House, Canberra, media release, 23 June 2015, accessed 29 August 2015. See further E Karlsen, ‘Cancellation of Australian citizenship built on shaky foundations?’, FlagPost, Parliamentary Library blog, 21 July 2015, accessed 4 August 2015.

5. Professor K Rubenstein, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 3, accessed 29 July 2015.

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including the number of individuals currently involved in conflicts in places such as Iraq and Syria, and the relatively high proportion from Western nations, has worried authorities. A key concern is the potential threat these individuals may pose to domestic security upon return.6 One of the means that some countries, including the United Kingdom, Canada and France, have employed to address that particular concern is citizenship revocation.7

The Explanatory Memorandum states that the Bill is part of ‘a multi-faceted approach’ to countering the threats to national security posed by the increasing numbers of foreign fighters, known sympathisers and supporters of extremists and potential terrorists.8 As part of this approach, the Government states that the Bill seeks to ‘address the challenges posed by dual citizens who betray Australia by participating in serious terrorism related activities’, and who represent ‘a serious threat to Australia and Australia’s interests’, by broadening the circumstances in which a person may cease to be an Australian citizen under the Citizenship Act.9 Additionally, the Statement of Compatibility with Human Rights states that the measures proposed in the Bill ‘may also have a deterrent effect by making radicalised persons aware that their Australian citizenship is in jeopardy, if they participate in certain conduct contrary to their allegiance to Australia’.10

In that context, it is worth noting that Australia already has fairly comprehensive legal and operational measures in place to deal with terrorism.11 An already strong framework was reinforced through reforms passed in 2014 that extended and significantly expanded existing powers and offences, and introduced a range of additional powers and offences.12 The most relevant in the context of the current Bill was the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, which introduced broad-ranging amendments primarily aimed at addressing the increased threat of terrorism posed by Australians engaging in, and returning from, conflicts in foreign countries.13

Earlier announcement of proposed changes to citizenship laws Like current section 35 of the Citizenship Act (concerning service in foreign armed forces), the three additional grounds in the Bill relating to the cessation of Australian citizenship are self-executing, or ‘automatic’ provisions.14 This means that at least theoretically, a person would cease to be an Australian citizen immediately upon the legislative condition being met in each case, without the need for court, Ministerial, or other implementing action.

In the framing of these provisions, the Bill seeks to respond to the concern prompted earlier this year by the Government’s formal announcement of its intention to ‘update’ the Citizenship Act to empower the Minister to revoke the Australian citizenship of an Australian dual national who ‘betrays our country by participating in serious terrorist-related activity’.15

This concern stemmed from the view that to place the decision to revoke a person’s Australian citizenship with the Minister alone would be contrary to the constitutional separation of powers, as it would involve the exercise

6. C Barker, Citizenship revocation on national security grounds: context and selected issues, Research paper series, 2015-16, Parliamentary Library, Canberra, 3 August 2015, pp. 3-8, accessed 4 August 2015. 7. For brief overviews, see ABC, ‘Fact check: how does Australia’s plan to strip foreign fighters of citizenship compare to other nations?’, ABC News, updated 11 June 2015 and S Pillai, ‘Proposals to strip citizenship take Australia a step further than most’, The Conversation,

29 May 2015; both accessed 15 July 2015. 8. Explanatory Memorandum, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 1, accessed 28 July 2015. 9. P Dutton (Minister for Immigration and Border Protection), ‘Second reading speech: Australian Citizenship Amendment (Allegiance to

Australia) Bill 2015’, House of Representatives, Debates, 24 June 2015, pp. 7369-72, accessed 29 August 2015; Explanatory Memorandum, op. cit., p. 1. 10. Statement of Compatibility with Human Rights, Explanatory Memorandum, op. cit, p. 28. 11. C Barker, Citizenship revocation on national security grounds: context and selected issues, op. cit., pp. 8-11. 12. M Biddington and C Barker, National Security Legislation Amendment Bill (No. 1) 2014, Bills digest, 19, 2014-15, Parliamentary Library, Canberra, 2014; C Barker, M Biddington, M Coombs and M Klapdor, Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Bills digest, 34, 2014-15, Parliamentary Library, Canberra, 2014; C Barker, Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, Bills digest, 50, 2014-15, Parliamentary Library, Canberra, 2014; J Murphy and M Biddington, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, Bills digest, 89, 2014-15, Parliamentary Library, Canberra, 2015, all accessed 13 July 2015. 13. Barker et al, op. cit.; Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, accessed 31 August 2015. 14. A short outline of the origins and subsequent history of section 35 of the Citizenship Act is provided by E Karlsen, ‘Cancellation of Australian citizenship built on shaky foundations?’, op. cit. 15. T Abbott (Prime Minister) and P Dutton (Minister for Immigration and Border Protection), New measures to strengthen Australian citizenship, media release, 26 May 2015, accessed 4 August 2015.

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of the judicial power of the Commonwealth by a non-judicial office holder. The following comments from the Australian Bar Association are representative of concerns raised at the time by stakeholders and non-government politicians:

Any proposal which suggests that a Minister might assume the power to take action impacting upon fundamental rights of citizenship before a criminal conviction has been secured is deeply troubling.

The proposal is likely to fail, as a matter of constitutional invalidity, because it imposes a penalty without adjudication by a court applying traditional safeguards including a fair trial and the rules of evidence. 16

Professor Greg Craven, one of the strongest critics of the original proposal, categorised it as ‘irredeemably unconstitutional’, and suggested that ‘[b]y conferring a profoundly judicial power on a Minister, it mocks the separation of powers’.17

Professor Craven is reported subsequently to have indicated that ‘the new [self-executing] option was much less likely to fall foul of the High Court’.18 However, the automatic nature of the three proposed cessation provisions included in the Bill has itself generated a degree of concern about constitutionality, lack of clarity as to the operation of the law, and potentially disproportionate negative consequences that may arise. Further comment on the Bill from stakeholders and interest groups is provided under the Position of major interest groups and Key issues and provisions sections below.

Committee consideration Parliamentary Joint Committee on Intelligence and Security The Parliamentary Joint Committee on Intelligence and Security (PJCIS) commenced an inquiry into the Bill on 26 June 2015 at the request of the Attorney-General.19 The Attorney-General also asked the PJCIS to consider whether proposed section 35A of the Bill, which relates to conviction-based cessation of Australian citizenship, should apply retrospectively to convictions obtained prior to the commencement of the proposed section. The PJCIS is due to report on 2 September 2015. Details of the inquiry are at the inquiry homepage.20

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills has outlined several concerns in relation to the Bill as a whole, as well as more specific issues relating to particular provisions.

On cessation in the absence of a criminal conviction (items 3 and 4 of the Bill (proposed sections 33AA and 35) which provide for the cessation of an Australian dual citizen’s Australian citizenship in specified circumstances), the Committee stated:

Although citizenship rights have a statutory basis in Australia, it may be suggested that it misconceives the nature of citizenship (perhaps especially in relation to persons who have acquired citizenship by birth) to understand it as a privilege that may be removed or that will cease as a consequence of criminal misbehaviour, even if that misbehaviour is serious. Indeed, the deprivation of citizenship based on alleged or suspected criminal conduct may (like the deprivation of liberty based on a determination of criminal guilt) be an inherently judicial function, such

16. Australian Bar Association, ABA opposes revocation of citizenship without conviction, media release, 19 June 2015, accessed 11 August 2015. See for example M Dreyfus (Australian Labor Party), Transcript of doorstop, Canberra, media release, 17 June 2015; P Wright (Australian Greens), Dutton’s totalitarian citizenship laws an unprecedented power-grab, media release, 5 June 2015; C Palmer (Palmer United Party), Revoking citizenship not constitutional, media release, 9 June 2015; Law Council of Australia, Proposed citizenship revocation laws must abide with the Constitution and rule of law, media release, 18 June 2015; all accessed 29 August 2015.

17. Professor G Craven, ‘Stripping citizenship from a traitor is plain dumb’, The Australian, 4 June 2015, p. 12, accessed 18 August 2015. 18. D Roe and T Allard, ‘Revised citizenship plan gets cautious backing from its former critics’, The Age, 23 June 2015, p. 6, accessed 10 August 2015. 19. Parliamentary Joint Committee on Intelligence and Security (PJCIS), New Parliamentary inquiry into Citizenship Bill, media release,

26 June 2015, accessed 29 August 2015. 20. PJCIS, ‘Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015’, Australian Parliament website, accessed 2 August 2015.

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that it can only be achieved if it is specified as a penalty that may be imposed if a person is convicted of a criminal offence. 21

Beyond that fundamental concern, the Committee raised significant concerns relating to the fairness of a person losing their citizenship under those provisions, ‘given that a person may lose their citizenship on the basis of criminal conduct without any of the protections associated with a criminal trial’ (emphasis in original).22 Further, it does not consider the automatic nature of the provisions or the capacity to seek declaratory or injunctive relief alleviate those concerns.23

The Committee sought detailed justification from the Minister on the fairness of proposed sections 33AA and 35 and a ‘detailed and particularised explanation’ as to why each type of conduct listed in proposed section 33AA is considered an appropriate basis for automatic loss of citizenship.24

The Committee was also concerned about the breadth and operation of item 5 of the Bill (proposed section 35A), under which a dual national would lose their Australian citizenship automatically on conviction of one or more of a range of criminal offences. It noted, amongst other things:

There is a significant possibility that the application of the law will not be proportionate to the circumstances of particular cases. The automatic operation of the provisions means that there is no discretionary judgment exercised prior to the time that the cessation takes effect. 25

The Committee also noted that ‘conduct relevant to some of the offences … relates to expression and communication’, and queries whether the cessation of Australian citizenship is ‘appropriate in relation to such offences, given the obvious implications for freedom of speech … a matter not appropriately addressed in the explanatory material’.26 The Committee sought a ‘detailed and particularised explanation’ as to why conviction for each of the offences listed in proposed section 35A is considered an appropriate basis for automatic loss of citizenship.27

On aspects that apply to all three proposed grounds for cessation, the Committee outlined concerns about the exclusion of the right to be heard and other rules of natural justice, limitations on judicial review and the ambiguity and lack of clarity resulting from the automatic nature of the provisions.28 With respect to all three proposed sections, the Committee observes:

From a scrutiny perspective, an unfortunate outcome of the application of the proposed legislative scheme is that a person may be deemed by government officials to have lost their citizenship without having been given any prior opportunity to contest the basis of this conclusion. Nor would a hearing in relation to this issue be required prior to a government official exercising a power (such as denying a passport application) on the basis that citizenship has been lost. This is a matter of grave scrutiny concern given the significance of interests involved and the importance of the right to a fair hearing. Indeed, the courts consider procedural fairness to be a fundamental principle of the common law. In part, the value of a affording a fair hearing to affected persons is the recognition that doing so increases the likelihood that the law will be correctly applied and discretionary decisions made on the basis of relevant information.

29

The Committee sought further explanation from the Minister that addresses the lack of procedural fairness of the proposed amendments, justifies the exclusion of particular safeguards, sets out the rationale for the use of

21. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 7, 2015, The Senate, Canberra, 12 August 2015, p. 5, accessed 29 August 2015. 22. Ibid., p.5. 23. Ibid., pp. 5-8. 24. Ibid., p. 8. 25. Ibid., p. 9. 26. Ibid., pp. 9-10. 27. Ibid., p. 10. 28. Ibid., pp. 12-18. 29. Ibid., 13.

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automatic provisions and provides advice on whether legislative guidance might be provided to address some of the resulting legal uncertainties.30

Further comment on the Bill by the Committee is included in the Key issues and provisions section below.

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights’ (PJCHR) report on the Bill includes a detailed analysis of the rights it identifies as being engaged by certain of the provisions of the Bill.31

In its report, the PJCHR raises many issues with the Bill in the context of key human rights treaties to which Australia is party. The report sets out three categories of concerns, namely:

• the Bill’s engagement with a long list of substantive human rights, including the right to freedom of movement, right to liberty, obligations concerning non-refoulement, right to a fair hearing and prohibition against double punishment

• the Bill’s engagement of procedural and process rights such as those relating to a fair trial, fair hearing and an effective remedy and

• how the Bill will impact children, both through substantive loss of citizenship and as a result of the child’s responsible parent losing his or her citizenship.

The treaty obligations the PJCHR considers to be engaged by the Bill and not sufficiently addressed in the Statement of Compatibility include the right to a fair hearing under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which applies to both civil and criminal proceedings, and which the PJCHR considers to be limited by the proposed provisions. 32

With respect to the right to a fair trial, (also provided for under Article 14 of the ICCPR), the PJHCR notes that the ‘Statement of Compatibility provides insufficient information to allow a full assessment of this potential limitation, particularly given the unusual construction of proposed sections 33AA and 35(1).’ 3334

Moreover, the PJHCR considers that the Statement of Compatibility does not acknowledge that the right to a fair trial is limited by the Bill and that therefore, there is no accompanying justification for this limitation in the Statement.35

The PJHCR also notes that the automatic loss of citizenship provisions in the Bill apply equally to children and adults. It considers the Bill’s automatic cessation of citizenship provisions do not accommodate the best interests of the child (Article 3 of the Convention on the Rights of the Child), and that the Statement of Compatibility has not demonstrated consistency with Australia’s obligations in this regard.36

More generally, the PJHCR observes that under the Bill, the conduct justifying the cessation of citizenship includes a broad range of activities some of which do not appear to ‘reflect a repudiation of allegiance’. Accordingly the measure appears significantly broader than necessary’.37

The PJCHR has questioned the compatibility of the Bill with Australia’s human rights obligations in numerous instances and sought substantial advice from the Minister to aid its further consideration of the issues raised in its report.

30. Ibid., pp. 14-18. 31. Parliamentary Joint Committee on Human Rights (PJCHR), Twenty-fifth report of the 44th Parliament, The Senate, 11 August 2015, accessed 13 August 2015. 32. Ibid., pp. 28-31. International Covenant on Civil and Political Rights, done at New York 16 December 1966, [(except Article 41)1976] ATS 23

(entered into force for Australia (except Article 41) 13 November 1980) (Article 41 came into force generally on 28 March 1979 and for Australia on 28 January 1993), accessed 19 August 2015. 33. Article 14 is ‘concerned with procedural fairness, and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body’. Other associated specific and minimum guarantees that are

affected include the presumption of innocence, the right not to be punished twice for the same conduct, the right not to incriminate oneself and a guarantee against retrospective criminal laws: PJCHR, Twenty-fifth report of the 44th Parliament, op. cit. 34. Ibid., p. 27. 35. Ibid., pp. 30-31. 36. Ibid., p. 39. Convention on the Rights of the Child, done at New York 20 November 1989, [1991] ATS 4 (entered into force for Australia 16 January 1991), accessed 19 August 2015. 37. Ibid., p. 12.

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Further comment on the Bill from the PJCHR is included in the Key issues and provisions section below.

Policy position of non-government parties/independents The Australian Labor Party is reported to have indicated its bipartisan ‘in principle’ support for the Bill.38

The Australian Greens have criticised the Bill on the grounds that it seeks to ‘bypass the courts’ and lacks procedural fairness. The Greens also dispute that the Bill will make Australians any safer.39

The Palmer United Party was critical of the Government’s earlier proposal under which the Minister would have had powers to revoke citizenship, but does not appear to have commented publicly on the Bill since its introduction.40

Shortly ahead of the Bill’s introduction, Senator Nick Xenophon reportedly questioned whether new citizenship revocation powers would make Australia safer, indicating he would prefer alleged Australian terrorists face trial in Australia than remain free overseas.41 However, he does not appear to have commented publicly on the Bill since its introduction.

The policy position of other parties and independents was not known at the time of the writing of this Bills Digest.

Position of major interest groups Submitters to the PJCIS’s inquiry into the Bill appear generally accepting of the need for the Government to introduce additional measures to adapt to new national security threats. Some are accepting of the further proposition that citizenship cessation may be appropriate in some circumstances.42 However, most submitters do not support the Bill in its current form and have recommended substantial redrafting and, in at least one instance, public consultation on a revised draft, before it proceeds further.43

Some of main concerns raised are outlined briefly below. Further comment on the Bill from stakeholders and interest groups is provided under the Key issues and provisions section below.

Constitutionality One of the main criticisms of the Bill is that notwithstanding the casting of key provisions as automatic or self-executing provisions to avoid this consequence, the Bill may nonetheless be in breach of the constitutional separation of powers.44

Professor George Williams submitted in this regard that:

… the bill has not cured the underlying problem about ministerial discretion. I can see that it has been drafted to deal with the issue that this decision cannot be made by a minister for constitutional reasons, but the underlying constitutional reason for that is that the decision must be made by court. That is an inescapable aspect of the separation of powers as determined by the High Court. The self-executing model does still not provide for the

38. J Doyle, M Doran and D Conifer, ‘Terror citizenship laws: Lawyers divided on merits of bill to strip dual nationals of citizenship’, ABC News, 24 June 2015, accessed 21 July 2015. 39. P Wright, Abbott’s citizenship laws more about posturing than protection, media release, 27 June 2015, accessed 28 July 2015. 40. C Palmer, Revoking citizenship not constitutional, op. cit. 41. J Kerin, ‘Xenophon warns IS may hit Australians overseas’, Australian Financial Review, 23 June 2015, p. 10, accessed 29 August 2015. 42. See for example, Law Council of Australia (LCA), Submission to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to

Australia) Bill 2015, p. 13; Ms S Chordia, Ms S Pillai and Professor G Williams, Submission to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, pp. 1-2, both accessed 29 August 2015. Among those who question whether additional grounds for citizenship cessation should be part of the Government’s response are Professor K Rubenstein, op. cit., p. 2; Professor B Saul, Submission to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, pp. 1-2; Australian Lawyers for Human Rights (ALHR), Submission to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 1; Islamic Council of Queensland, Submission to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015; Councils for Civil Liberties of Australia (joint submission; CCLs), Submission to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, pp. 2-4; all accessed 30 August 2015. See further C Barker, Citizenship revocation on national security grounds: context and selected issues, op. cit. 43. Federation of Ethnic Communities’ Councils of Australia (FECCA), Submission to PJCIS, Inquiry into the Australian Citizenship Amendment

(Allegiance to Australia) Bill 2015, p. 5, accessed 30 August 2015. 44. See for example Professor H Irving, ‘Bill relies on legal fiction of self-executing law to revoke citizenship’, The Conversation, 17 August 2015, accessed 17 August 2015.

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decision to be made by a court; it simply amounts to a self-executing piece of legislation that bypasses the court at the critical moment of determining whether the requisite liability arises. 45

It is also suggested by legal experts and practitioners that some aspects of the Bill may be beyond the scope of the ‘aliens’ power under section 51(xix) of the Constitution, the power described in the Explanatory Memorandum as the ‘principal source of power for a person’s Australian citizenship ceasing’.46 For instance, in their joint submission to the PJCIS inquiry into the Bill, Shipra Chordia, Sangeetha Pillai and Professor George Williams suggest that:

It is … possible that parts of the Bill may lack the support of a constitutional head of power. The Explanatory Memorandum for the Bill states that the primary source of constitutional support for its enactment is the aliens power in s 51(xix) of the Constitution, relying on the idea that an alien is ‘a person lacking allegiance to Australia’. However, there has not yet been a High Court case in which it has been necessary for the Court to decide the constitutional meaning of ‘alienage’, or for it to determine the outer limits of Parliament’s power under s 51(xix).

Even if the term ‘alien’, for constitutional purposes, is understood to mean ‘a person lacking allegiance to Australia’, Parliament does not have an unfettered discretion to determine when such allegiance is lacking, and it is likely that certain provisions of the Bill exceed any power that Parliament does have to determine this question. This is particularly so given that much of the conduct that triggers the automatic loss of citizenship in the Bill does not include a necessary element of disloyalty to Australia.

47

The Law Council of Australia (LCA) also points to uncertainties with the constitutionality of the Bill, observing in its submission to the PJCIS inquiry that:

The Commonwealth’s constitutional power to determine who may be an Australian citizen and when citizenship can be lost through legislation has been affirmed by the High Court. However, the basis for and the scope of the Commonwealth’s power to enact citizenship legislation is uncertain. 48

These constitutional concerns are also reflected in a number of other submissions to the PJCIS inquiry into the Bill.

Breadth of the new grounds for citizenship cessation Stakeholders have raised concerns about the breadth of all three proposed new grounds for citizenship revocation. The provision that has attracted the most criticism is proposed section 33AA, which provides for renunciation by engaging in specified conduct. Dr Rayner Thwaites of the University of Sydney referred to this as ‘the most legally and practically problematic in a highly problematic Bill’.49 Concerns raised centred around a lack of clarity as to how the provision will actually operate in practice, lack of clarity as to whether or not renunciation occurs in the absence of specific intention, recklessness or knowledge, the automatic loss of citizenship for conduct for which a person either was not, or would not be convicted of if prosecuted for the corresponding criminal offence, overlap with proposed section 35A (see below) and the provision’s application to children.50

45. Professor G Williams, Evidence to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 12-13, 4 August 2015, accessed 30 August 2015. 46. Explanatory Memorandum, op. cit., p. 5. 47. Chordia et al, op. cit. With reference to sections 7 and 24 of the Constitution and the decision of the High Court in Roach v Electoral

Commissioner (2007) 233 CLR 162, [2007] HCA 43, these submitters also argue that ‘[T]he Bill, if passed, may also be impugned on constitutional grounds because of the manner in which it removes the capacity of a person to vote in federal elections. Sections 7 and 24 of the Constitution state that the “people of the Commonwealth” must directly choose the members of the federal Parliament’: p. 3. 48. LCA, Submission to PJCIS, op. cit., p. 8. 49. Dr R Thwaites (University of Sydney), Submission to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, accessed 30 August 2015. 50. See for example Centre for Comparative Constitutional Studies, Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, pp. 1-3, accessed 12 August 2015; Professor A Twomey (University of Sydney), Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, pp. 1-4, accessed 30 August 2015; Dr R Thwaites, op. cit.; LCA, Submission to PJCIS, op. cit., pp. 9-13; Professor K Rubenstein, op. cit., pp. 2, 4; ALHR, op. cit., pp. 6-7; Muslim Legal Network (NSW), Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 8, accessed 30 August 2015.

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Concerns about the expansion of existing section 35 to include fighting for, or being in the service of, a ‘declared terrorist organisation’ (item 4) included the vagueness of the term ‘in the service of’ and the lack of any clear requirement that the terrorist organisation is engaged in hostilities with Australian forces or represents a direct threat to Australia.51

Loss of citizenship following a conviction for a specified offence (proposed section 35A) had the most support from stakeholders, with many arguing that this should be the only means by which a person may lose their citizenship on national security grounds.52 However, concerns have been raised about the inclusion of certain offences and about the fact that loss is automatic, so doesn’t entail consideration of whether the particular circumstances of a case indicate a repudiation of allegiance to Australia.53

Process by which cessation occurs Many stakeholders raised concerns relating to the automatic or self-executing nature of the provisions and the associated lack of transparency as to exactly how they will operate in practice. Concerns were also raised about the basis on which a determination that one of the grounds for cessation has been met, the exclusion of the rules of natural justice and significantly limited opportunities for judicial and administrative review.54

An alternative model A range of stakeholders were of the view that if the Government considered a new mechanism for cessation is required, it should have the following characteristics:

• cessation should only be possible where a person has been convicted and sentenced for a relevant offence (possibly dependent not only on the maximum penalty for the offence, but also the actual sentence imposed)

• cessation should not be automatic—the court or the Minister should be required to decide, following a relevant conviction, whether a person’s citizenship should be revoked, based on consideration of the particular circumstances of the case, the risk the person poses to Australia’s security, international obligations and standing, and other relevant factors

• the rules of natural justice and procedural fairness should apply to the decision to revoke a person’s citizenship

• the decision to revoke a person’s citizenship should be subject to judicial and merits review and

• children should be exempted or subject to additional protections.55

Financial implications The Explanatory Memorandum states that the financial impact of the Bill will be low, and that any costs will be met from within existing resources of the Department of Immigration and Border Protection (the Department).56

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.57 However, as noted earlier in this Digest, the PJCHR has significant concerns about the Bill and has sought additional advice

51. See for example LCA, Submission to PJCIS, op. cit., pp. 13-15; ALHR, op. cit., p. 2; Australian Human Rights Commission (AHRC), Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, pp. 4-5; accessed 31 August 2015. 52. See for example LCA, Submission to PJCIS, op. cit., pp. 3-4, 9-12; Chordia et al, op. cit., p. 1-2; FECCA, op. cit., p. 5; Australian Bar Association (ABA), Submission to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 3-4; Amnesty

International, Submission to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 4; both accessed 31 August 2015. 53. See for example Professor A Twomey, op. cit., p. 5; Centre for Comparative Constitutional Studies, op. cit., p. 11; LCA, Submission to PJCIS, op. cit., pp. 12-15; Chordia et al, pp. 5-6. 54. See for example LCA, Submission to PJCIS, op. cit., pp. 16-24; CCLs, op. cit., pp. 4-5; Chordia et al, pp. 6-7; Professor B Saul, op. cit., pp. 5-8;

Commonwealth Ombudsman, Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, accessed 31 August 2015. 55. LCA, Submission to PJCIS, op. cit., pp. 3-4, 9-12; Chordia et al, op. cit., pp. 1-2; FECCA, op. cit., pp. 4-5; ABA Submission to PJCIS., op. cit., pp. 3-4; AHRC, op. cit., pp. 3-5; Amnesty International, op. cit., pp. 3-4. 56. Explanatory Memorandum, op. cit., p. 3. 57. The Statement of Compatibility with Human Rights can be found at pages 27-35 of the Explanatory Memorandum.

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from the Minister to aid its further consideration of the Bill’s compatibility with Australia’s international human rights obligations.58

Key issues and provisions Items 3, 4 and 5 include the key amendments to the Citizenship Act, proposed sections 33AA, 35 and 35A, all of which can result in the automatic loss by a person of their Australian citizenship where they are also a national or citizen of another country (dual national). The remainder of this section outlines the key issues and provisions in the following order:

• the three proposed new grounds for citizenship revocation and issues identified with each, in the order in which they appear in the Bill

• provisions common to all three proposed new grounds (concerning how they operate, such as the giving of notice) and associated issues and

• other issues that arise in relation to the Bill, such as its constitutionality, whether it is broadly similar to models adopted in comparable jurisdictions and some of the practical consequences of citizenship cessation, such as the potential for prolonged or indefinite detention.

Renunciation by engaging in specified conduct Item 3 will insert proposed section 33AA to provide that a person who is a dual national will renounce their Australian citizenship if they engage in certain conduct inconsistent with ‘their allegiance to Australia’. Proposed subsection 33AA(2) lists eight types of conduct that will trigger renunciation, namely:

• engaging in international 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.

Proposed subsection 33AA(3) provides that the words and expressions used in subsection 33AA(2) have the same meaning as in specified sections of the Criminal Code. Although it is not referred to in this proposed subsection, the Explanatory Memorandum indicates the term ‘terrorist act’ is defined in section 100.1 of the Criminal Code.59

Issue: Application or otherwise of fault, defences, exemptions and extensions of criminal responsibility The implications of references to ‘engaging in conduct’ in proposed section 33AA, and proposed subsection 33AA(3) providing that words and expressions used in proposed subsection 33AA(2) have the same meaning as in specified sections of the Criminal Code, are unclear.

The provisions referred to in proposed subsection 33AA(3) all relate to criminal offences. Under the Criminal Code, offences comprise physical elements (conduct, circumstances and results) and fault elements that go to the person’s state of mind when they engaged in the relevant conduct (such as knowledge, intention and recklessness).60 Fault elements do not need to be specified for each physical element; section 5.6 applies the relevant default fault elements unless otherwise specified.

Because conduct has a particular meaning under the Criminal Code, it is unclear whether a person renounces their citizenship simply by engaging in the relevant conduct, or only if they also hold a particular state of mind when they do so. Further, the Centre for Comparative Constitutional Studies points out that where a Criminal

58. PJCHR, Twenty-fifth report of the 44th Parliament, op. cit., pp. 4-46. 59. Explanatory Memorandum, op. cit., p. 8. 60. Criminal Code Act 1995 (Criminal Code), Divisions 3-5, Part 2.2, accessed 30 August 2015.

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Code provision sets out offences with different punishments depending on whether the fault element is ‘knowledge’ or ‘recklessness’ as in section 101.2 (providing or receiving training with respect to terrorist acts), it is unclear which offence would trigger the automatic operation of proposed section 33AA.61

It is also unclear whether defences or exemptions to the offences from which meanings are drawn, and extensions of criminal liability provided under the Criminal Code, such as conspiracy, are intended to apply.

In seeking to address these issues, the Department stated:

Whether the person engages in the relevant conduct outlined in 33AA(2) will be a matter of fact. The phrase used in the Bill ‘a person engages in the relevant conduct’ must necessarily mean conduct as a whole, and not restricted to meaning only the physical elements of the provisions in the Criminal Code.

The meaning of engaging in any of the conduct listed in the sub-paragraphs of 33AA(2) is to be considered in light of the whole meaning of the listed phrases. 62

However, while this may be the intention, it is not a necessary implication of the provisions themselves. Some submitters to the PJCIS inquiry argue the intended scope and operation of proposed section 33AA should be clear in the provision itself.63

Issue: Lack of discretion and absence of criminal law protections The self-executing or automatic operation of proposed section 33AA means that the discretions that apply in the criminal justice system in relation to the same conduct do not exist under the proposed section.

One such discretion is the determination in each case whether or not to prosecute. The Centre for Comparative Constitutional Studies states in its submission to the PJCIS inquiry that (emphasis added):

… unlike the offences in the Criminal Code to which the provision [section 33AA] is connected, the provision does not require a decision to prosecute. The requirement of a decision by an independent prosecutor that there are reasonable prospects of a conviction, and that the conviction is in the public interest, is an intrinsic limitation on the operation of the Australian criminal justice system.

64

The court also has discretion to dismiss charges where it is satisfied that one or more charges are proven but it is of the opinion, having regard to certain matters, that it would be inexpedient to proceed to conviction.65

A number of stakeholders also expressed concerns at the use in proposed section 33AA of criminal law definitions outside the context of prosecution under the Criminal Code, including in relation to the different level of proof required.

In its submission to the PJCIS inquiry into the Bill, the LCA submitted:

Effectively, the Bill supplants what would ordinarily be a criminal court process in determining whether a person has engaged in certain conduct with an administrative law process to make the same determination.

This means that rather than the prosecution having to prove beyond reasonable doubt that a person is guilty of an offence, it must only be shown on the balance of probabilities that the person engaged in certain conduct. 66

Professor Rubenstein considered:

… there are many oddities in this section including the use of criminal law definitions without the protections of the criminal law framework in place. 67

61. Centre for Comparative Constitutional Studies op. cit., p. 2. 62. Department of Immigration and Border Protection (DIBP), Supplementary submission (4) to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 5, accessed 24 August 2015. 63. See for example Professor A Twomey op. cit., pp. 1-4; Dr R Thwaites, op. cit. 64. Centre for Comparative Constitutional Studies, op. cit., p. 2. 65. Crimes Act 1914, section 19B, accessed 30 August 2015. 66. LCA, Submission to PJCIS, op. cit., p. 10. 67. Professor K Rubenstein, op. cit., p. 4.

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Similarly, Australian Lawyers for Human Rights submitted (emphasis in original):

… under the Citizenship Act, a conviction for a (serious) specified offence should be required before citizenship can be revoked. However the Bill greatly expands the notion in existing section 35 of automatic termination for certain alleged behaviour, even where no court has established that the behaviour in fact occurred. This is entirely contrary to Australian criminal justice standards which require a fair trial, and to Australia’s obligations as a signatory to the Universal Declaration of Human Rights.

68

Issue: Overlap with and relationship to proposed section 35A (cessation upon conviction) The issues raised above about the different levels of proof required in determining whether a person has engaged in specified conduct under proposed section 33AA and the corresponding offence in the Criminal Code are also relevant to the relationship between the different grounds for cessation proposed in the Bill. Specifically, proposed section 35A would provide for automatic cessation of citizenship upon conviction of particular offences. The offences listed in that provision go beyond the conduct listed in proposed subsection 33AA(2), but there is substantial overlap.

One issue raised in this context is the possibility that a person could be acquitted at trial on the criminal standard of proof, meaning proposed section 35A would not apply, but nonetheless lose their citizenship under proposed section 33AA, under which the lower civil standard would apply.69 Some submitters also questioned why the Minister would even wait for the outcome of a criminal trial where a more expedient mechanism would be available. Dr Thwaites suggested:

It can be expected that, if the government has two options available for revocation based on the same conduct, one requiring a successful criminal conviction and the other dispensing with any need for a criminal trial, it will choose the latter. 70

Some submitters to the PJCIS raised the possibility that, given the overlap between the two provisions, it might be the Government’s intention for proposed section 33AA to apply only to conduct that occurs outside Australia, with conduct inside Australia to be dealt with under proposed section 35A. They state that if that is the intended operation of the provisions, this should be made explicit in the legislation.71

Issue: Application to children The Explanatory Memorandum states that proposed section 33AA will have ‘limited impact with respect to minors’.72 Noting that under the Criminal Code, a child under 10 years of age is not criminally responsible for an offence, and a child from 10 to 14 years can only be criminally responsible for an offence ‘if the child knows his or her conduct is wrong’, the Explanatory Memorandum states ‘[t]hese restrictions will apply to the application of new section 33AA’.73

However, as the LCA submitted, although these Criminal Code protections would apply to children convicted of an offence under proposed section 35A (see below), ‘[t]hey would not, contrary to statements in the Explanatory Memorandum, appear to apply to the application of new section 33AA and 35’.74

The LCA also notes with reference to the Minister’s discretionary power to make an exemption where he or she considers that it would be in the public interest to do so under proposed subsection 33AA(7) of the Bill (see below), that:

… there are no age restrictions in the Bill or any mandatory requirement on the Minister to apply the Criminal Code restrictions in decisions of whether to issue a notice or an exemption. 75

68. ALHR, op. cit., p. 2. 69. LCA, Submission to PJCIS, op. cit., p. 10; CCLs, op. cit., p. 6; Chordia et al, op. cit., p. 6. 70. Dr R Thwaites, op. cit. See also Muslim Legal Network (NSW), op. cit., p. 8. 71. Professor H Irving, Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 5, accessed

30 August 2015; Dr R Thwaites, op. cit. Relevantly, paragraph 11(2)(a) of the Citizenship Act provides that, unless the contrary intention appears, the Act extends to ‘acts, omissions, matters and things outside Australia’. 72. Explanatory Memorandum, op. cit., p. 10. 73. Ibid. These restrictions are set out in sections 7.1 and 7.2 of the Criminal Code. 74. LCA, Submission to PJCIS, op. cit., p. 24, accessed 4 August 2015.

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Moreover while under the Bill:

… the Minister’s discretionary power to make an exemption where it would be in the public interest may … include consideration of matters relating to minors, including the best interests of the child, any impact cessation may have on the child and Australia’s obligations to children … such considerations are not mandatory’. 76

Relatedly, the Centre for Comparative Constitutional Studies notes that while the Explanatory Memorandum states that proposed section 33AA will not apply to minors, ‘the Statement of Compatibility clearly states … that the proposed amendments are to apply to all citizens “regardless of age”’.77 In fact, the Statement of Compatibility goes on to state:

The Government has considered the best interests of the child in these circumstances where conduct of a minor is serious enough to engage the cessation or renunciation provisions and has assessed that the protection of the Australian Community and Australia’s national security outweighs the best interests of the child. 78

Cessation through service outside Australia in the armed forces of an enemy country or a declared terrorist organisation Item 4 will repeal current section 35 of the Citizenship Act (service in armed forces of enemy country) and substitute proposed section 35 (service outside Australia in armed forces of an enemy country or a declared terrorist organisation).

Serving in armed forces at war with Australia The proposed provision preserves cessation of Australian citizenship under current section 35 for Australian dual nationals who serve in the armed forces of a country ‘at war’ with Australia (proposed subparagraph 35(1)(b)(i)).

From its inception in 1948, Australia’s citizenship legislation has included a provision to the same effect as current section 35.79 Like the proposed cessation provisions included in the Bill, current section 35 applies automatically, and extends in its application to dual nationals regardless of how they acquired their Australian citizenship.

While noting the synergies between current section 35 and the Bill’s proposed provisions for the loss of Australian citizenship, the LCA observes that current section 35 provides for the automatic revocation of citizenship ‘in a very confined and relatively obvious circumstance, with its narrow application demonstrated by it never having been used’.80

In contrast, in a criticism (which may be construed as extending to all three of the Bill’s proposed revocation provisions) the LCA notes that:

The Bill significantly expands the scope of such automatic revocation to a wide and vague set of variable circumstances. It is undesirable to have a broad range of conduct and factually variable scenarios automatically giving rise to a change in status of citizenship without some satisfactory mechanism for fact finding and determination being in place.

81

75. Ibid.

76. Ibid.

77. Centre for Comparative Constitutional Studies, op. cit., p. 12. See Explanatory Memorandum, op. cit., p. 32. 78. Explanatory Memorandum, op. cit., p. 33. 79. Nationality and Citizenship Act 1948, Section 19. The Act was subsequently renamed the Australian Citizenship Act 1948. 80. LCA, Submission to PJCIS, op. cit., p. 7. 81. Ibid.

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Similarly, Professor Rubenstein observes that:

It is important to recognize that section 35 and its predecessor has never been relied upon by the Executive to determine someone has lost their citizenship, and indeed, the Department’s view has been that the section has never operated because Australia has not been formally ‘at war’. 82

Further, given the existing provision has not been used, and therefore no need or opportunity has existed for it to be challenged or tested for constitutionality:

… it is unclear whether section 35 as it currently stands is in itself constitutional, let alone whether this amendment would also survive a constitutional challenge. 83

Fighting for, or being in the service of, a declared terrorist organisation Item 4 also inserts proposed subparagraph 35(1)(b)(ii)) which will expand the basis for the cessation of the Australian citizenship of dual nationals to those who fight for, or are in the service of, a ‘declared terrorist organisation’. Under the proposed provision, the service or fighting must occur outside Australia (proposed paragraph 35(1)(c)).

Proposed subsection 35(4) will provide that a ‘declared terrorist organisation’ is any terrorist organisation within the meaning of paragraph (b) of the definition of ‘terrorist organisation’ in subsection 102.1(1) of the Criminal Code that the Minister declares to be such for the purposes of the proposed section. Paragraph 102.1(1)(b) of the Criminal Code allows organisations to be proscribed as terrorist organisations by regulation if the Attorney-General is satisfied of certain matters.84

Issue: Basis on which organisations are declared The Explanatory Memorandum states that it is intended that the Minister rely on the list of terrorist organisations in section 102.1 of the Criminal Code in declaring a terrorist organisation for the purposes of proposed section 35, because ‘fighting for, or being in the service of, a terrorist organisation in this list demonstrates a repudiation of allegiance to Australia’.85 Further:

The amendment reflects the policy intention that only terrorist organisations that are opposed to Australia or are opposed to any of Australia’s values, democratic beliefs, rights or liberties [would be declared for the purposes of proposed section 35]. 86

However, no guidance is provided in proposed subsection 35(4) itself as to the additional criteria that must be met to justify the declaration of a terrorist organisation for the purposes of citizenship cessation. The LCA considers:

Criteria for declaring a terrorist organisation should be provided in legislation and require that the organisation conducts itself in a manner prejudicial to Australia’s security or commits war crimes or crimes against humanity. 87

The Scrutiny of Bills Committee queried the basis on which it is considered appropriate ‘to make [loss of citizenship] reliant upon a ministerial declaration that is not subject to disallowance by the Parliament’.88 The proscription of organisations as terrorist organisations under the Criminal Code is by regulation. It is not clear why proscription for the purposes of citizenship cessation is not proposed to be by that same process.

Issue: Breadth of conduct captured The Explanatory Memorandum states that the terms ‘fight’ and ‘in the service of’ should be given their ordinary dictionary meaning and, in elaboration of the phrase ‘in the service of’, that:

82. Professor K Rubenstein, op. cit., p. 3. 83. Ibid., p. 4. 84. See further Australian Government, ‘Listed terrorist organisations’, Australian National Security website, accessed 30 August 2015. 85. Explanatory Memorandum, op. cit., p. 16. 86. Ibid.

87. LCA, Submission to PJCIS, op. cit., p. 13. 88. Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., p. 11.

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A person may act in the service of a declared terrorist organisation if they undertake activities such as providing medical support, recruiting persons to join declared terrorist organisations, providing money or goods, services and supplies to a declared terrorist organisation. 89

Having regard to this statement, Australian Lawyers for Human Rights notes that while the Bill ‘purports to relate to “persons engaging in terrorism and who are a serious threat to Australia and Australia’s interest” … [it] potentially covers even medical assistance by organisations such as Médecins sans Frontières or the Red Cross’.90

Similarly, UNICEF Australia notes that:

… as part of UNICEF's work globally there are times when we have to educate armed groups in relation to child protection as part of their being released—actually outlining international law to members of armed groups and explaining the serious consequences for children. Would I then qualify as being ‘in the service’, even though I am firmly in the service of UNICEF globally and in the service of children?

91

A similar concern with the breadth of the expression ‘is in the service of’ was raised by the Scrutiny of Bills Committee, while the Australian Human Rights Commission submits that a definition of the words ‘in the service of’ should be included in the proposed legislation.92

In its response to questioning during the PJCIS inquiry into the Bill, the Department advised, amongst other things, that ‘[a] person who is unwittingly or unknowingly aiding and providing assistance to a terrorist organisation will not be acting ‘in the service of’ a terrorist organisation’.93

Other issues Like proposed section 33A, proposed section 35 will operate automatically and on the basis of specified conduct rather than a criminal conviction. While the scope of conduct to which proposed section 35 will apply is narrower, the issues raised above in relation to proposed section 33A, such as the absence of criminal law protections that would apply to prosecution for the same conduct and the provision’s application to children, are also relevant to proposed section 35.

Cessation upon conviction of terrorism and certain other offences Item 5 inserts proposed section 35A, which will provide that a person ceases to be an Australian citizen where they are convicted of a specified terrorist offence, or other specified offence (proposed subsection 35A(1)). Under proposed subsection 35A(2), a person would cease to be an Australian citizen at the time of their conviction.

Proposed subsection 35A(3) specifies the offences for the purposes of proposed subsection 35A(1), namely those concerning:

• international terrorist activities using explosive or lethal devices

• treason, espionage, urging violence, or advocating terrorism

• terrorism, in particular terrorist acts, terrorist organisations (other than associating with terrorist organisations) and terrorism and terrorist financing

• foreign incursions and recruitment and

• treachery, sabotage, inciting mutiny, assisting prisoners of war to escape, conducting unlawful drills or military exercises, or destroying or damaging Commonwealth property.

This provision will apply to a broader range of conduct than proposed sections 33AA and 35. The Explanatory Memorandum states that this is appropriate as the proposed section will only apply upon conviction.94 This

89. Explanatory Memorandum, op. cit., p. 14. 90. ALHR, op. cit., p.2. See also Chordia et al, op. cit., pp. 5-6. 91. A Lamoin (Chief Technical Adviser, UNICEF Australia), Evidence to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, 5 August 2015, p. 5, accessed 31 August 2015.

92. Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit , p. 11; AHRC, op. cit, p. 4. 93. DIBP, Supplementary submission (4) to PJCIS, op. cit., p. 6.

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distinction is reflected in the fact that a number of the offences under proposed subsection 35A(3) would, if established, result in a maximum penalty of imprisonment for five years.95 By way of comparison, the lowest maximum penalty that would apply to conduct captured by proposed section 33AA if prosecuted as an offence would be imprisonment for 15 years.96

Issues: Range of offences and automatic application The breadth of the circumstances in which a person may cease to be an Australian citizen under the Bill is pertinent to its constitutionality, and to its encompassment by the ‘aliens power’ provided for in section 51(xix) of the Constitution. The proposed provision has been widely criticised on the ground that the breadth of the offences it includes go well beyond what Professor Twomey describes as ‘the traditional notion of terrorism’, and is therefore disproportionate to the Bill’s purpose.97 A separate but related issue, because it is most relevant to non-terrorism offences, is the fact that, like proposed sections 33A and 35, proposed section 35A will operate automatically. This means that a person would lose their citizenship on conviction for a specified offence, regardless of the particular circumstances of the case.

The Centre for Comparative Constitutional Studies comments in its submission to the PJCIS that:

The breadth of offences listed in s 35A also means that the Act goes beyond what might be considered ‘proportionate to… ensuring the security of the Australian community’. As Nystrom makes clear, there are ‘few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable’ (emphasis in original).

98

A similar point is raised by the Senate Standing Committee for the Scrutiny of Bills:

Given the automatic operation of this cessation provision, there is a significant possibility that the application of the law will not be proportionate to the circumstances of particular cases. The automatic operation of the provisions means there is no discretionary judgment exercised prior to the time that cessation of citizenship takes effect. 99

Particular criticism is directed by many stakeholders at the inclusion in proposed paragraph 35A(3)(e) of the offence of destroying or damaging Commonwealth property under section 29 of the Crimes Act 1914.100 On this issue, the LCA observed:

That offence is committed if a person intentionally damages property whether real or personal and it is a circumstance that the property happens to be Commonwealth property. This offence can apply even if the person does not know that the property belongs to the Commonwealth or a Commonwealth authority. In such circumstances, it is not appropriate, to equate all conduct of that kind to the cessation of citizenship. For example, it may also potentially capture graffiti on a public building.

101

Concerns have also been expressed at the inclusion of offences relating to urging violence, advocating terrorism, entering or remaining in a ‘declared area’ and other foreign incursions in a provision that operates automatically upon conviction.102

The LCA suggests as a possible solution for proposed section 35A (and also, proposed sections 33AA and 35):

94. Explanatory Memorandum, op. cit., p. 19. 95. Ibid., pp. 19-21. This includes offences concerning urging violence, advocating terrorism and conducting unlawful drills or military exercises. 96. Ibid., pp. 8-9. 97. Professor A Twomey, op. cit., p. 5. 98. Centre for Comparative Constitutional Studies, op. cit., p. 11, (quoting from the Statement of Compatibility [18] and Nystrom v Australia,

[7.6]), accessed 10 August 2015. 99. Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., pp. 9- 10. 100. During the hearings of the PJCIS in Canberra on 4 August 2015, it was queried whether, in view of the fact that there is no reference to

section 29 of the Crimes Act in the Explanatory Memorandum (see p. 21), it might in fact not have been intended to have been included in the Bill introduced in the Parliament on 24 June 2015. The issue was not resolved during the course of the hearing. 101. LCA, Submission to PJCIS, op. cit., pp. 12-13. Others critical of the inclusion of that offence include Professor A Twomey, op. cit., p. 5; Chordia et al, op. cit., p. 5; CCLs, op. cit., p. 5. 102. LCA, Submission to PJCIS, op. cit., pp. 12-15; Professor A Twomey, op. cit., p. 5; Chordia et al, op. cit., pp. 5-6; Senate Standing Committee for

the Scrutiny of Bills, Alert digest, op. cit., pp. 9-10.

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If the self-executing provisions for citizenship cessation remain in the Bill, they should be amended to require that the person has engaged in the specified conduct in a manner which demonstrates a specific lack of allegiance to Australia, including by demonstrating a repudiation of Australian values by committing war crimes or crimes against humanity, or the conduct is prejudicial to Australia’s security.

103

Provisions common to all grounds for cessation Items 3, 4 and 5 insert subsections in proposed sections 33AA, 35 and 35A that are common to all three provisions. Items 6 and 7 also insert provisions that apply to loss of citizenship under all three proposed sections. This section provides an overview of all of these provisions first, then sets out related issues and concerns.

Minister to give notice When the Minister ‘becomes aware’ of the relevant conduct or conviction, the Minister must give written notice to that effect at such time and to such persons as the Minister considers appropriate (proposed subsections 33AA(6), 35(5) and 35A(5)).

Minister’s power to rescind notice and exempt person Proposed subsections 33AA(7), 35(6) and 35A(6) will provide that where the Minister has given a notice under proposed section 33AA, 35 or 35A, he or she may personally rescind the notice and exempt the person from the operation of the new cessation provision in circumstances in which the Minister considers it to be in the public interest to do so.

The Explanatory Memorandum states that these provisions are ‘aimed to ensure that the public interest is taken into consideration when a decision to excuse a person’ from the operation of proposed section 33AA, 35 or 35A is taken.104 The Explanatory Memorandum suggests further that:

Public interest consideration in this statutory scheme may include matters such as public confidence in the safety of the Australian community, actual public safety, the extremely serious nature of the conduct, the need for deterrence, the impact on the person, national security and international relations. It may also include matters relating to minors, including the best interests of the child, any impact that cessation may have on the child and Australia’s obligations to children …

105

Despite this elaboration of the matters which may be taken into account by the Minister, the proposed provisions do not themselves contain any reference to, or guidance on, what might constitute ‘public interest’ considerations.106

Irrespective of whether he or she is requested to do so by the person (or any other person on his/her behalf), the Minister does not have a duty to consider whether to exercise the power to rescind and exempt a person (proposed subsections 33AA(8), 35(7) amd 35A(7)).

General provisions relating to the Minister’s powers The remaining provisions common to proposed sections 33AA, 35 and 35A concern how the Minister exercises the duties and powers imposed, and apply to both the giving of notice and the powers to rescind a notice and exempt a person. They provide that:

• the powers must be exercised by the Minister personally (proposed subsections 33AA(9), 35(8) and 35A(8))

• the rules of natural justice do not apply (proposed subsections 33AA(10), 35(10) and 35A(9)). As a result, the Minister would not be required to give reasons for his or her decision or provide the person with an opportunity to be heard

• the Minister is not required to give notification of the decision under section 47 of the Citizenship Act (proposed subsections 33AA (10), 35(9)and 35A(9))107

103. LCA, Submission to PJCIS, op. cit., p. 13. 104. Explanatory Memorandum, op. cit., p. 12. 105. Ibid. See also DIBP, Supplementary submission (4) to PJCIS, op. cit., p. 1. 106. This criticism is identified by the Muslim Legal Network (NSW), op. cit., p. 6.

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• an instrument exercising any of the Minister’s powers under the proposed provisions is not a legislative instrument (proposed subsections 33AA(11), 35(10) and 35A(10)) and

• section 39 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) does not apply in relation to those proposed sections (proposed subsection 33AA(12), 35(11) and 35A(11)). That section of the ASIO Act prohibits Commonwealth agencies from taking administrative actions (other than certain actions of a temporary nature) on the basis of communications from ASIO other than formal security assessments provided for under Part IV of that Act.108 Providing that section 39 of the Act does not apply allows the Minister to act on information and intelligence from ASIO that does not amount to a security assessment. It may also operate to further limit review rights, given security assessments under Part IV of the ASIO Act attract rights of notice and merits review.109

Power to revoke the citizenship of dependent children Section 36 of the Citizenship Act provides the Minister power to revoke the citizenship of a child of a person who ceases to be an Australian citizen under existing provisions of the Act.

Item 6 will amend section 36 to enable the Minister (in certain circumstances and subject to certain exceptions relating to statelessness, as apply to existing provisions) to revoke the citizenship of children of a responsible parent who ceases to be a citizen as a result of the operation of proposed section 33AA, 35 or 35A. The Explanatory Memorandum indicates that operation of this provision would be ‘subject to the Minister’s powers to exempt the operation of sections 33AA, 35, and 35A’.110

The Federation of Ethnic Community Councils of Australia was among those critical of this provision:

Given the lack of safeguards in the Bill, particularly the ambiguity as to the process through which the Minister will ‘become aware of conduct’ satisfying the relevant provisions, FECCA opposes the Minister’s power to revoke a child’s citizenship under s 36 of the Citizenship Act on the basis that their parents’ citizenship has ceased/been revoked.

111

No resumption of citizenship Item 7 will insert proposed section 36A, which will prohibit all persons who are stripped of their Australian citizenship under any of the new cessation mechanisms in proposed sections 33AA, 35 or 35A from acquiring Australian citizenship again.

In its report, the PJCHR expresses concern at the severity of this provision, noting that the proposed finality of the proposed cessation provisions ‘underlies the extraordinary nature of the provisions, particularly as many of the offences for which citizenship may be lost carry a maximum prison term of not more than 5 years under the Criminal Code’.112

Issue: Exclusion of the rules of natural justice and usual notice provisions The exclusion of the rules of natural justice has attracted significant criticism from stakeholders, who argue that a person facing a consequence as serious as loss of citizenship should be afforded the safeguards associated with natural justice, including an opportunity to be heard.113

Ms Chordia, Ms Pillai and Professor Williams stated:

… 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

107. Section 47 of the Citizenship Act requires the notification of a decision made under the Act. 108. Australian Security Intelligence Organisation Act 1979, accessed 31 August 2015. 109. Ibid., section 38, Division 4 of Part IV. 110. Explanatory Memorandum, op. cit., p. 24. 111. FECCA, op. cit., p. 4. See also Muslim Legal Network (NSW), op. cit., p. 13; ALHR, op. cit., p. 8. 112. PJCHR, Twenty-fifth report of the 44th Parliament, op. cit., p. 48. 113. Muslim Legal Network (NSW), op. cit., pp. 17-18; LCA, Submission to PJCIS, op. cit., pp. 18-19; Chordia et al, p. 3; ALHR, op. cit., p. 7; FECCA,

op. cit., p. 3; ABA, Submission to PJCIS, op. cit., p. 3.

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9 of the Migration Act. Accordingly, the express and implied exclusion of natural justice in the Bill is unwarranted and disproportionate. 114

They further argue:

… there is no compelling justification for the Bill’s exclusion of s 47 of the Australian Citizenship Act, which requires the Minister to provide a person with notice of any decision reached in relation to the person, and with reasons where the decision is adverse in nature. The Bill, if passed, would create a system in which a person could automatically lose their citizenship, and be subjected to the consequences of this loss, without having any access to information about the basis upon which their citizenship was lost, or even the fact that it was lost at all.

115

The Scrutiny of Bills Committee was also critical of this aspect of the Bill.116

Issue: No duty to consider a request to rescind a notice of citizenship cessation The Human Rights Law Centre is among those critical of the framing of the proposed power of rescission, given that it is not compellable and entirely at the discretion of the Minister. Moreover, the fact that the Minister does not have to comply with the rules of natural justice ‘creates serious risks of decisions that are arbitrary, inconsistent, political and subjective - and that rely on irrelevant or incorrect information’.117

The Scrutiny of Bills Committee suggests that:

… it may be considered that the ‘no duty to consider’ provisions attached to the exemption power are unfair given that the cessation of citizenship occurs automatically and the result therefore is that the Minister’s decision as to whether the operation of the exemption provision is appropriate is not subject to any meaningful judicial review. 118

Issue: Use of intelligence information The exclusion of section 39 of the ASIO Act, thereby allowing the Minister to act on intelligence provided outside the context of a security assessment and the procedural safeguards that entails, attracted substantial criticism.

Professor Ben Saul submits that the Minister’s decision may thereby ‘be based on partial, incomplete and untested intelligence, which may be unreliable, highly prejudicial to the person, and unable to be challenged by the person, all magnifying the chance of error’.119

The Federation of Ethnic Communities’ Councils of Australia was also critical, observing that the exclusion of section 39 of the ASIO Act would:

… potentially allow the Minister and/or relevant public servants to use intelligence which does not amount to a security assessment to issue notice that an Australian citizenship has ceased. Cessation or revocation of citizenship is a serious consequence which should not be based on intelligence that is ordinarily only used for actions of a temporary nature.

120

Ms Chordia, Ms Pillai and Professor Williams commented:

Given that s 39 of the ASIO Act and the rules of natural justice apply to noncitizens who are subject to deportation orders under Division 9 of the Migration Act, there is no reason to deny these protections to citizens who are subject to citizenship revocation and consequent detention or deportation. 121

114. Chordia et al, op. cit., p. 3. 115. Ibid., pp. 6-7. See also LCA, Submission to PJCIS, op. cit., pp. 18-19. 116. Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., pp. 14-15. 117. Human Rights Law Centre, Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 8,

accessed 18 August 2015. See also LCA, Submission to PJCIS, op. cit., pp. 20-21; Professor B Saul, op. cit., p. 7; FECCA, op. cit., p. 3 118. Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., p. 17. 119. Professor B Saul op. cit., p.6. 120. FECCA, op. cit., p.3. See also LCA, Submission to PJCIS, op. cit., p. 20. 121. Chordia et al, op. cit., p. 6.

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The Australian Human Rights Commission also notes that the effect of excluding section 39 would be that the person would not be able to have ASIO’s opinion reviewed by the Commonwealth Administrative Appeals Tribunal.122

In commenting on the exclusion of the application of section 39 of the ASIO Act, the PJCHR noted that:

[T]he effect of the Bill is that a Commonwealth agency can act on preliminary ASIO information that is less certain than a security assessment when determining whether someone is an Australian citizen or whether in fact they have lost that citizenship on conduct outlined by ASIO. 123

A further issue arises were an affected person to seek judicial review of a decision made as a result of the cessation or renunciation of citizenship. As is discussed in more detail below (see Judicial and administrative review) a person may seek ‘declaratory relief as to whether the conditions giving rise the cessation have been met’. However, such review may be limited by the operation of the National Security Information (Criminal and Civil Proceedings) Act 2004, pursuant to which the Attorney-General may issue a non-disclosure certificate. Receipt of certificate triggers a requirement for the court to hold a closed hearing at which parties may also be excluded where the court considers that the disclosure would be likely to prejudice national security.124

Similarly, it is also open to the government to seek to have evidence excluded from evidence on the grounds of public interest immunity (PII). The Department that these claims:

… are most commonly made by the Government in relation to national security and the activities of Australian Security and Intelligence Organisation (ASIO) officers, police informers and other types of informers or covert operatives.

Where a claim of PII is made in relation to the disclosure of sensitive information, the court will be expected to give great weight to that claim; however it will need to reach its own conclusions. It is therefore not absolute that in every case, the information will be protected. 125

Application provisions Item 8 is an application provision that sets out how the new cessation mechanisms in the Bill will apply. It provides that the three new cessation mechanisms will apply to all Australian citizens irrespective of when they became an Australian citizen (that is, before, on, or after commencement date).

In relation to cessation under proposed section 33AA, the provision will only apply to conduct that was engaged in on or after commencement, irrespective of when the conduct commenced.

In relation to cessation under proposed section 35, the provision will only apply in relation to fighting for, or being in the service of, a declared terrorist organisation that occurs on or after commencement, irrespective of when the conduct commenced.

In relation to cessation under proposed section 35A, the provision will only apply to convictions that occur after commencement, irrespective of when the conduct constituting the offence occurred.

Retrospectivity As noted earlier in this Digest, the PJCIS was asked to consider whether proposed section 35A should be amended to apply retrospectively to convictions that occurred before commencement. Submitters to the PJCIS inquiry into the Bill who commented on the issue do not consider that proposed 35A should have retrospective operation. For example, the LCA considers:

While it is within the power of the Parliament to enact retrospective laws, holding a person responsible for automatic citizenship cessation for doing what did not amount to cessation at the time that s/he did it, contravenes

122. AHRC, op. cit., p.6. 123. PJCHR, Twenty-fifth report of the 44th Parliament, op. cit., p. 12. 124. National Security Information (Criminal and Civil Proceedings) Act 2004, accessed 2 September 2015. 125. DIBP, Supplementary Submission (4) to PJCIS, op. cit., p. 4.

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fundamental notions of justice, fairness and the rule of law. The gravity of retroactive removal of a person’s citizenship is a substantive alteration of a person’s legal rights and obligations which is fundamentally unjust. 126

Assistant Professor Bruce Baer Arnold comments in his submission to the PJCIS that:

Retrospective application of the proposed 2015 law is legally repugnant and has not been justified on the basis that Australia faces a substantive existential threat and can only address terrorist activity/affiliations on an extraordinary basis, i.e. through retrospectivity. 127

The LCA also considers that the Bill ‘already has partial retrospective application’ in that:

Section 35 is proposed to apply where the fighting or service commenced before the commencement of the Act, but the person will cease to be an Australian citizen at the time the Act commences. Similarly, the application of section 35A applies to convictions that occur after the commencement of the Act, whether the conduct constituting the offence occurred before, on or after that commencement.

128

Broader issues relating to the Bill This section of the Digest outlines broader issues in relation to the Bill and the general proposal to expand the grounds on which Australian citizenship may be lost. Policy issues are set out first, followed by those relating to the drafting of the Bill as a whole.

Do the benefits of additional citizenship cessation powers outweigh the costs? Revoking a person’s citizenship (or, as is proposed in the Bill, providing it ceases or is renounced) might in some circumstances benefit national security. However, it might also undermine national security, by leading to perverse outcomes and missed opportunities. It has been argued such measures:

• could exacerbate national security and terrorism threats in the longer term by contributing to the development of a pool of ‘professional international jihadists’129

• might mean Australia loses opportunities to integrate the voices and stories of disillusioned fighters into more effective counter-narratives to support efforts to counter violent extremism, and to benefit from information they could provide our intelligence and security agencies

• risk increasing social disaffection and potentially adding to the allure of organisations such as ISIL

• go against Australia’s counter-terrorism related international obligations and undermine the international framework for cooperation on such matters and

• shift the risks associated with Australian foreign fighters onto other countries that may be less capable of dealing with the individuals in question.130

Could the threats the Bill aims to address be dealt with by other means? Australia already has quite comprehensive legal and operational measures in place to deal with terrorism, with an already strong framework reinforced through reforms passed last year.131 The Government has also stated that further measures will be introduced later this year.132

126. LCA, Submission to PJCIS, op. cit., p.29. 127. Assistant Professor B Arnold, Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p.7, accessed 3 August 2015. 128. LCA, Submission to PJCIS, op. cit., p.7. 129. A Lockyer and G Milad, ‘If blocked from returning home, where will Australia’s jihadists go?’, The Conversation, 9 September 2014, accessed

4 August 2015. 130. For a summary of such arguments, see C Barker, Revoking citizenship on national security grounds: context and selected issues, op. cit., pp. 13-17. See also K Rubenstein, op. cit., p. 2; CCLs, op. cit., pp. 3-4; Professor B Saul, op. cit., pp. 1-2; S Reich and L Kirk (Australian National

University College of Law Migration Law Program), Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 9, accessed 31 August 2015. 131. The current legislative framework is summarised in C Barker, Revoking citizenship on national security grounds: context and selected issues, op. cit., pp. 8-10. 132. G Brandis (Attorney-General), Transcript of interview with Patricia Karvelas: RN Drive: Countering Violent Extremism Summit, media release,

12 June 2015; S Maiden, ‘New spy powers to fight extremists’, The Sunday Telegraph, 5 July 2015, p. 11; both accessed 13 July 2015.

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One of the main security-related arguments advanced by the Prime Minister for introducing the measures in the Bill is the difficulty involved in obtaining sufficient admissible evidence to prosecute individuals for conduct they allegedly engaged in overseas. He has stated: ‘putting Australian foreign fighters in gaol is easier said than done … Bringing foreign fighters back to face trial in Australia risks leaving them free on our streets rather than in our gaols’.133 Several existing powers are particularly relevant in this context: reforms effective from 1 December 2014 that removed the requirement for ‘terrorism-related proceedings’ to comply with the usual rules that apply to foreign evidence; the control order regime, which was significantly expanded in 2014; and passport refusal, cancellation and suspension powers.134

Practical consequences: potential statelessness, refoulement and prolonged or indefinite detention In confining the operation of the Bill’s cessation provisions to dual citizens, the Bill seeks to ensure that a person who loses their Australian citizenship by operation of law will not be rendered stateless. However, the statement in the Explanatory Memorandum that the Bill ‘will not result in a person becoming stateless’ has been challenged by a number of stakeholders. 135

In its submission to the PJCIS inquiry, the LCA states:

While international law dictates that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality, there is no guarantee that a dual national’s/citizen’s other country of nationality will not revoke their citizenship and/or refuse to accept them (because of suspected terrorist involvement), effectively rendering that person stateless…

136

A similar point is made by the Islamic Council of Queensland, which submits that dual citizens ‘are unlikely to regain citizenship in their second country in the instance that they lose their Australian citizenship’, and that they are therefore ‘at risk of being in the same situation as a sole national who may lose their citizenship’.137

A number of stakeholders also raise the possibility that a person may end up in indefinite detention in Australia in cases where they cannot be returned, pursuant to international law, to a country where they may be subject to torture or the death penalty.138

The Commonwealth Ombudsman observes further in this regard:

An individual physically located in Australia who loses their Australian citizenship would be entitled to an ex-citizen visa under s35 of the Migration Act 1958. It is reasonable to expect however, that a person who loses their Australian citizenship because of terrorist related activities would be liable to have their visa cancelled under the character provisions of the Migration Act. If that were the case, the Migration Act would require that person be placed in immigration detention pending voluntary departure or removal to the person's other country of citizenship. If the individual or the other country fail to cooperate with efforts to arrange appropriate travel documentation and removal, it is highly likely the individual will spend an extended (and possibly indefinite) period in immigration detention in Australia.

139

Issues around indefinite detention also need to be considered in light of the application of the Bill to children, both directly under proposed sections 33AA and 35 and under item 6, which will amend 36 of the Citizenship Act (that section allows the Minister to revoke the citizenship of dependent children of parents who lose their Australian citizenship).

133. T Abbott (Prime Minister), Magna Carta lecture: speech, Canberra, media release, 24 June 2015, accessed 16 July 2015. See also T Abbott, Transcript of doorstop interview: Cairns, media release, 19 June 2015, accessed 13 July 2015. 134. See C Barker, Revoking citizenship on national security grounds: context and selected issues, op. cit., pp. 11-13 for further detail. 135. Explanatory Memorandum, op. cit., p.2. 136. LCA, Submission to PJCIS, op. cit., p. 26. 137. Islamic Council of Queensland, op. cit. See also Refugee Council of Australia, op. cit; Amnesty International, op. cit., pp. 6-7. 138. See for example Human Rights Law Centre, op. cit., p. 8; LCA, Submission to PJCIS, op. cit., pp. 25-27; Refugee Council of Australia, op. cit. 139. Commonwealth Ombudsman, op. cit.

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Stakeholders have also pointed out that people may be dual nationals without even knowing it, a circumstance recognised on the Government’s Smart Traveller website.140 This raises the possibility of people being returned to a country in which they have no community ties and may not even speak the local language.

Past instances of Australia deporting permanent residents on the basis of criminal convictions are pertinent in the context of some of the issues raised above.

• Stefan Nystrom, who was born in Sweden and lived in Australia from 27 days old, had his visa cancelled and was deported to Sweden in 2006 on the basis of his extensive criminal record. He reportedly ended up homeless in Sweden on the basis of the language barrier (he did not speak Swedish) and his criminal history and mental illness. The then Australian Government chose not to act on a 2011 United Nations Human Rights Committee ruling that Australia had an obligation to allow Mr Nystrom to return.141

• Robert Jovicic was born in France to Serbian parents and lived in Australia from two years old. His visa was cancelled and he was deported to Serbia in 2004 on the basis of his extensive criminal record. Like Mr Nystrom, Mr Jovicic did not speak the language in the country to which he was deported. He was also not recognised by Serbia as a national, leaving him stateless. He ended up unemployed and living on the street, suffering from very poor health. The then Australian Government allowed Mr Jovicic to return to Australia in 2006 on compassionate grounds.142

Two classes of Australian citizen As noted above, the new citizenship cessation provisions would be limited to dual nationals so as to comply with international obligations concerning statelessness. While recognising that this is the case, a number of stakeholders have indicated concern that this will create a two-tiered system of Australian citizenship. For example, Professor Irving observes:

The fact that the provisions of the Bill apply only to dual nationals also has the potential to create a ‘two-class’ system of law in Australia, since the consequences of prescribed conduct for dual nationals are different from the consequences of the same conduct performed by sole nationals. 143

The Councils for Civil Liberties note that:

The Bill is discriminatory because it would treat dual citizens and nationals differently to persons with sole Australian citizenship. It creates a perverse incentive for persons to renounce citizenship or nationality of other counties [sic] in order to avoid the operation of the Act. 144

Comparability to the laws of other jurisdictions The Government’s formal announcement of its intention to ‘update’ the Citizenship Act in response to the threat of terrorism indicated that:

These new powers are a necessary and appropriate response to the terrorist threat. They modernise our laws and bring them closer to those of the UK, Canada, France, the United States and other countries. 145

That the Bill would bring Australia into line with comparable jurisdictions has been disputed in submissions and evidence to the PJCIS inquiry and elsewhere.146

In her evidence before the PJCIS inquiry into the Bill, Ms Pillai suggested that the Bill ‘as it is currently drafted does not bring Australian legislation in line with any of these countries’ [UK, Canada, US and France].147 Ms

140. Amnesty International, op. cit., p. 6; Muslim Legal Network (NSW), op. cit., pp. 11-12; FECCA, op. cit., p. 2; Department of Foreign Affairs and Trade, ‘Dual nationals’, Australian Government Smart Traveller website, accessed 2 September 2015. 141. J Waters and staff, ‘Australia defies UN on deportation case’, ABC News, 26 April 2012; R Wallace and J Stapleton, ‘I’ll go straight: exiled burglar’, The Australian, 10 March 2006, p. 5, accessed 2 September 2015. 142. M O’Neill, ‘Bring Jovicic home, family pleads’, Lateline, transcript, ABC, 30 November 2005; R Wallace and J Stapleton, ‘I’ll go straight: exiled

burglar’, op. cit., both accessed 2 September 2015. 143. Professor H Irving, Submission to PJCIS, op. cit., p. 7. See also Professor K Rubenstein, op. cit., p. 6; FECCA, op, cit., p. 1. 144. CCLs, op. cit., p. 6. 145. T Abbott and P Dutton, New measures to strengthen Australian citizenship, op. cit. 146. ABC, ‘Fact check: how does Australia’s plan to strip foreign fighters of citizenship compare to other nations?’, op. cit.; S Pillai, ‘Proposals to

strip citizenship take Australia a step further than most’, op. cit.

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Pillai’s joint submission with Ms Chordia and Professor Williams states the Bill is ‘exceptional in scope’.148 The Centre for Comparative Constitutional Studies considers that when compared with citizenship deprivation schemes in operation in other common law jurisdictions, the scheme provided for in the Bill ‘ is undoubtedly “extreme” and lacks some of the safeguards that feature in other countries’.149

The Australian Human Rights Commission notes that it has not examined all jurisdictions, but identifies some specific ways in which the Bill goes further than four comparable countries:

The United States provides for renunciation of citizenship; however, it is necessary that a person intend to renounce their citizenship.

The United Kingdom allows for the revocation of citizenship on public interest grounds. However, loss of citizenship is not automatic. It requires a decision to be made by the Secretary of State, and avenues of appeal are provided.

Canada allows for revocation of citizenship for persons convicted of certain offences. However, account is taken of the severity of the offending. Affected persons are informed of the grounds of the decision and allowed make submissions. Avenues of appeal are available.

New Zealand does not have any equivalent loss of citizenship provisions. 150

The Department’s own overview of those countries’ laws does not identify any equivalent to proposed section 33AA.151

Constitutionality of the Bill The Explanatory Memorandum states that the ‘principal source of power’ underpinning the provision in the Bill for the cessation of Australian citizenship arises from the power with respect to aliens provided for in section 51(xix) of the Constitution’.152

The Explanatory Memorandum also states, with reference to two High Court cases in which mention is made of ‘allegiance’ in the context of the ‘aliens power’, that ‘[t]he concept of “allegiance” is central to the constitutional term “alien”’. 153 Further, it asserts that ‘[a] citizen’s duty of allegiance is not created by the Citizenship Act but is rather recognised by it’.154

Responding to these statements, the Centre for Comparative Constitutional Studies says in its submission to the PJCIS inquiry into the Bill that:

The High Court has repeatedly emphasised that the definition of ‘aliens’ for the purposes of s 5l(xix) is not ‘at large’. 155

147. S Pillai (Monash University), Evidence to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 20, 4 August 2015, accessed 11 August 2015. 148. Chordia et al, op. cit., p. 2. 149. Centre for Comparative Constitutional Studies, op. cit., p. 13. In its submission, the Centre provides details of relevant US, UK and Canadian

revocation laws: pp. 7-10. 150. AHRC, op. cit., p. 14. See further Centre for Comparative Constitutional Studies, op. cit., pp. 7-10. 151. DIBP, Supplementary submission (3) to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, Question

CAA001, accessed 31 August 2015. 152. Explanatory Memorandum, op. cit., p. 5. 153. Ibid., pp. 4-5. The cases referred to are Singh v Commonwealth (2004) 222 CLR 322, [2004] HCA 43 and Koroitamana v Commonwealth

(2006) 227 CLR 31, [2006] HCA 28. 154. Ibid., p. 5. Although the Government has received advice on the constitutionality of the Bill, consistent with standard practice, this advice was not publicly available at the time of the preparation of this Bills Digest. See DIBP, Supplementary submission (3) to PJCIS, op. cit. 155. Centre for Comparative Constitutional Studies, op. cit., p. 6. The Centre refers in this regard to a number of decisions of the High Court,

including that of Te, in which Chief Justice Gleeson said that: 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.

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The Centre comments that while, if ‘read in isolation’, some of the statements by individual High Court judges ‘might be thought to suggest that the Parliament has unlimited power to legislate the grounds on which a person can be said to have renounced their allegiance to Australia … statements of this kind do not provide a precedent for the privation of nationality if the context is significantly different’.156 In this regard:

This Bill extends well beyond any other legislation based on section 51(xix)) that has previously been considered by the High Court. Its constitutional validity should not be regarded as assured in these circumstances. 157

Concern at the possible unconstitutionality of the Bill is also shared by Professor Irving, who considers proposed section 33AA in particular, ‘highly troubling from a constitutional law perspective’ and ‘impossible to apply in its own terms (that is, making reference to the offences in the Commonwealth Code), without a judicial determination of criminal guilt’.158 It is also shared by Professor Rubenstein, who states:

All these amendments give rise to serious questions about the limits on the Executive and the Parliament to take away a person’s citizenship. The Constitutional power to make laws regarding citizenship is drawn from various sections under section 51 of the Constitution and the breadth of these section may be in issue with these amendments. Moreover, there are also constitutional restrictions on how governments make laws within those parameters. Both aspects will give rise to issues that a High Court will need to grapple with if the proposed legislation is passed.

159

Can a law really be ‘self-executing?’ A number of submitters to the PJCIS inquiry into the Bill query whether the proposed provisions are in fact ‘self-executing’.

The Commonwealth Ombudsman considers (emphasis added):

The legal fiction that the cessation of citizenship occurs by operation of the statute conceals administrative decision making that must logically occur for the Bill to operate.

While it may be true on the scheme of the Bill that the Minister does not decide whether a person has engaged in the relevant conduct, there must be a decision by someone to that effect. That is, in order for the Minister to 'become aware' that a person has engaged in particular conduct or been subject to a relevant conviction someone, presumably an official, must form the view that the relevant conduct has been engaged in or a relevant conviction recorded.

It is not clear on the face of the Bill, but it is reasonable to assume, that the source of advice to the Minister to enable him or her to 'become aware' of conduct will be his or her department, law enforcement and intelligence agencies.

For an official to come to a view that a person has been convicted of a particular offence is relatively straight forward and capable of external verification. However, to come to a view that a person has engaged in a particular activity will require an official to make assessments of facts and law. 160

Dr Thwaites makes a similar point (emphasis in original):

The theory of the self-executing statute the statute and explanatory memorandum rely upon has been subjected to significant criticism in the Australian courts. The essence of this criticism is the common-sense observation that “No law is entirely self-executing; it needs the interposition of human judgment”. As a matter

Re Minister for Immigration and Agricultural Affairs; ex parte Te (2002) 212 CLR 162, [2002] HCA 48, at [31] per Gleeson CJ. A similar point is made by the Castan Centre for Human Rights Law (Monash University), Submission to PJCIS, Inquiry into Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, p. 2, accessed 29 July 2015. 156. Centre for Comparative Constitutional Studies, op. cit., p. 7. 157. Ibid. 158. Professor H Irving, Submission to PJCIS, op. cit., p. 4. 159. Professor K Rubenstein, op, cit., p. 5. 160. Commonwealth Ombudsman, op. cit., pp. 2-3.

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of practical reality, somebody needs to reach a determination that the conduct triggering revocation of citizenship has occurred. 161

Similar points were made in evidence to the PJCIS from Professor Williams, Professor Irving and the Councils of Civil Liberties. 162

The Scrutiny of Bills Committee also commented on this issue, focusing particularly on the lack of transparency inherent in the automatic decision-making process:

…the practical reality is that an internal administrative process will necessarily precede the government treating a person as having lost his or her citizenship. … The ‘automatic’ operation of the provisions has the result that an affected person is not afforded a hearing as part of that administrative process … The result is an affected person is not entitled (at this point) to contest judgements about whether the cessation of citizenship provisions are triggered. Once a government official has reached a conclusion that citizenship has ceased under these provisions, then further decisions might be made which are premised on a person no longer being a citizen (for example, refusal of a passport application, cancellation of visa, and, ultimately, a deportation order).

163

Submitters on the Bill consider these concerns to be supported by information provided to the PJCIS by the Department on how the amendments will operate in practice. Notably, the submission explains that:

Operationalising the Act will involve identifying dual nationals to whom one (or more) of the provisions relating to automatic loss of citizenship apply. This will require close cooperation across government. The Department, including the Australian Border Force, will work closely with relevant departments and agencies, including law enforcement and intelligence agencies, to put in place the appropriate steps and processes to support the new provisions.

Where available and suitable, existing whole of government intelligence and law enforcement coordination mechanisms will be utilised. In addition, deputy secretaries from relevant departments and agencies and [sic] will provide information to the Secretary of the Department of Immigration and Border Protection both on cases and other matters, such as the identification of relevant terrorist organisations for the purposes of the Act. The Secretary will bring cases to the attention of the Minister.

164

A related concern, raised by the Australian Bar Association is that:

The new ss.33AA and 35 make no provision for any means of fact-finding or standard of satisfaction creating legal uncertainty for government agencies acting upon the loss of citizenship, irrespective of whether the Minister has provided notice of this, including ASIO, the Department of Immigration and Border Protection and the Australian Electoral Commission.

165

Judicial and administrative review The Explanatory Memorandum states that ‘[t]he amendments in the Bill do not limit the application of judicial review’.166 However a number of submitters to the PJCIS inquiry do not consider that this would be the case.

The Centre for Comparative Constitutional Studies observes that this statement:

… is formally correct; indeed, it would be impossible to exclude judicial review given the requirements of the Constitution … [i]n practice, however, the opportunities for review are severely limited by the Bill, dramatically reducing the capacity of the courts to mitigate any untoward effects of the legislation. 167

A similar conclusion is reached by the Australian Councils for Civil Liberties:

161. Dr R Thwaites, op.cit. 162. Professor G Williams AO (University of New South Wales), Evidence to PJCIS, op. cit., p.14; Professor H Irving, Submission to PJCIS, op. cit., pp. 3-5; CCLs, op. cit., p. 4. 163. Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., p. 7. 164. DIBP, Submission to PJCIS, op. cit., p. 2. See also DIBP, Supplementary submission (4) to PJCIS, op. cit., p. 1. 165. ABA, Submission to PJCIS, op. cit., p. 3. 166. Statement of Compatibility, Explanatory Memorandum, op. cit., p. 31. 167. Centre for Comparative Constitutional Studies, op. cit., p. 5.

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… proposed s.33AA and s.35 of the Act create a presumption that all persons engaged in certain categories of conduct have renounced their citizenship, with the Minister then having a non-compellable discretionary power to exempt a person from the operation of the Act. That merely shifts the discretion from the front end to the back end of the process - it still sees the key decision that affects the person’s interests being made in the exercise of the Minister’s discretion. Judicial review of such power is notoriously difficult. It is fundamental that there be recourse to independent merits review of such decisions and that the rules of natural justice apply.

168

With reference to the claim in the statement of compatibility that ‘a person also has a right to declaratory relief as to whether the conditions giving rise to the cessation have been met’,169 the PJCHR also considers that ‘there is considerable uncertainty as to how an application for declaratory relief in relation to the automatic loss of citizenship would operate in practice’.170

As well as receiving written notice of the Minister’s decision, applicants for the renunciation of their Australian citizenship, or those who have had their citizenship revoked by the Minister, are currently entitled to seek review of the decision by the Administrative Appeals Tribunal.171

Advice from the Department to the PJCIS inquiry explains the absence of this review right from the Bill as follows:

In common with similar provisions in portfolio legislation giving the Minister a personal and non-compellable power, exercisable in the public interest, to exempt persons from the operation of various requirements, it is not considered appropriate to make the exercise of the ‘rescinding’ power subject to merits review. 172

Concluding comments Significant concerns with the Bill have been raised by peak professional legal bodies, leading constitutional lawyers, human rights proponents, community representative bodies and Parliamentary scrutiny committees. The concerns raised include policy issues around the desirability of addressing national security concerns through citizenship law and the practical consequences flowing from that approach, questions about the constitutionality of the Bill and whether self-executing provisions are in fact a ‘legal fiction’, and more specific issues concerning the scope of conduct captured by the provisions and the processes by which a person may lose their citizenship.

Against this background, a careful assessment would seem to be warranted before the Bill proceeds further.

168. CCLs, op. cit., p. 5. 169. Statement of Compatibility, Explanatory Memorandum, op. cit., p. 31. See also DIBP, Supplementary submission (4) to PJCIS, op. cit., p. 3. 170. PJCHR, Twenty-fifth report of the 44th Parliament, op. cit., p. 25. 171. Citizenship Act, sections 47 and 52. 172. DIBP, Supplementary submission (4) to PJCIS, op. cit., pp. 2-3.

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