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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019



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ISSN 1328-8091

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BILLS DIGEST NO. 58, 2019-20 25 NOVEMBER 2019

Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 Cat Barker Foreign Affairs, Defence and Security Section Claire Petrie Law and Bills Digest Section

Contents

The Bills Digest at a glance .............................................. 4

Purpose of the Bill ........................................................... 5

Background ..................................................................... 5

Australian Citizenship Amendment (Allegiance to Australia) Act 2015 ...................................................... 5

Threat environment and the potential usefulness of citizenship cessation ............................................... 6

Foreign fighters ......................................................... 6

Potential usefulness of citizenship cessation ............ 7 Citizenship losses under current provisions ............... 8 Review of Citizenship Act cessation provisions ......... 10

Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 ................................................................... 10

Independent National Security Legislation Monitor review ........................................................ 10

Agency support for a Ministerial decision making model .......................................................... 12

Statelessness in international law ............................. 13

Committee consideration .............................................. 14

Parliamentary Joint Committee on Intelligence and Security ............................................................... 14

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 14

Policy position of non-government parties/independents.................................................... 15

Position of major interest groups................................... 15

Non-government stakeholders ................................. 15

Date introduced: 19 September 2019

House: House of Representatives

Portfolio: Home Affairs

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 Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2019.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 2

Table 1: key issues raised in stakeholder submissions to the PJCIS’s inquiry into the 2019 Bill ............................................................................ 16

Operational agencies ................................................ 18

Financial implications .................................................... 18

Statement of Compatibility with Human Rights.............. 18

Parliamentary Joint Committee on Human Rights ... 19 Key issues and provisions .............................................. 19

Basis for Ministerial cessation determination .......... 19 Conduct-based cessation provisions ......................... 20

Existing provisions ................................................... 20

INSLM criticism ........................................................ 20

Proposed provisions ................................................ 20

Intent behind conduct ............................................. 21

Public interest test .................................................. 22

Application of the new provisions .......................... 22

Conviction-based cessation provisions ..................... 22 Existing provisions ................................................... 22

Proposed provisions ................................................ 23

Lowering the sentence threshold ........................... 23

Application of the new provisions .......................... 25

Statelessness test ...................................................... 25

Number of individuals potentially impacted ............ 27 Notice of citizenship cessation .................................. 27

Method of notice .................................................... 28

Content of the notice .............................................. 28

Delaying notice ........................................................ 29

Minister’s discretion to rescind citizenship cessation .................................................................... 30

Existing provisions ................................................... 30

Proposed provisions ................................................ 30

Automatic revocation of citizenship cessation determination ........................................................... 31

External oversight mechanisms ................................ 33

Judicial review ......................................................... 33

Absence of merits review ........................................ 34

Reporting requirement ........................................... 35

INSLM and PJCIS review and oversight of provisions will continue .......................................... 36

Retrospective application ......................................... 36

Conviction-based cessation ..................................... 36

Conduct-based cessation ........................................ 37

Cessations in force before commencement ........... 38

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 3

Statelessness test .................................................... 38

Constitutional validity ............................................... 38

Concluding comments ................................................... 40

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 4

The Bills Digest at a glance The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (the 2019 Bill) will amend the scheme for national security-related citizenship cessation in the Australian Citizenship Act 2007 (the Citizenship Act) to:

• replace ‘operation of law’ provisions in which Australian citizenship is automatically renounced on the basis of certain conduct, with a ministerial-decision model for citizenship cessation

• reduce the sentence threshold for cessation based on conviction for certain offences, from a sentence of at least six or ten years imprisonment (depending on when the sentence was imposed), to a sentence of at least three years imprisonment

• change the ‘statelessness test’ by removing the precondition that the person is a citizen of another country and substituting a prohibition on the Minister making a determination where the Minister is satisfied that a person will be made stateless by the determination

• amend the procedures for the giving of notice of a citizenship cessation and

• introduce procedures by which a person whose citizenship ceases may apply to the Minister for revocation.

These amendments will apply retrospectively.

Background

The Independent National Security Legislation Monitor (INSLM) reviewed the operation, effectiveness and implications of the national security-related citizenship loss provisions enacted in 2015. The INSLM’s report was provided to the Government in August 2019. It recommended the urgent repeal of the automatic citizenship loss provisions and introduction of a model in which citizenship cessation is determined by the Minister, with a range of safeguards. The 2019 Bill implements some, but not all, of these recommendations.

The 2019 Bill has been referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry and report. The Committee is concurrently completing a review of the existing citizenship loss provisions. Both reports are expected to be completed by 1 December 2019.

Key issues

While welcoming the repeal of the automatic citizenship loss provisions, stakeholders and the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) have expressed concern with a number of aspects of the 2019 Bill, including that:

• reducing the sentence threshold for conviction-based citizenship cessation is not proportionate and lacks justification

• amending the statelessness test will increase the risk of statelessness and narrow the scope for judicial review

• there has been insufficient justification provided for the Bill’s retrospective application

• although the INLSM’s proposed model included a limited form of merits review, the Bill does not make provision for this and

• proposed procedural safeguards, including automatic revocation of the cessation determination where a court makes certain factual findings, may not be functional and thus may not provide practical protection against arbitrary citizenship loss and statelessness.

The proposed statelessness test is not correctly explained in the Explanatory Memorandum and is different to the version proposed by a 2018 Bill.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 5

Purpose of the Bill The purpose of the 2019 Bill is to amend the national security-related citizenship cessation provisions in the Citizenship Act to:

• amend provisions relating to cessation on the basis of certain conduct so that they apply on the basis of a ministerial decision instead of the current ‘operation of law’ model (under which a dual-national’s Australian citizenship is ‘automatically’ renounced on the basis of certain conduct)

• for cessation based on conviction for certain offences, reduce the threshold at which citizenship revocation may be considered from a sentence of at least six or ten years imprisonment (depending on when the sentence was imposed), to a sentence of at least three years imprisonment

• remove the precondition that the person is a citizen of another country and substitute a prohibition on the Minister making a determination where the Minister is satisfied that a person will be made stateless by the determination

• establish a process by which a person whose citizenship ceases may apply to the Minister to request this be revoked

• amend the processes relating to the giving of notice of a cessation determination

• apply the new conduct-related provisions retrospectively (in most cases, to conduct that occurred on or after 29 May 2003) and

• increase the extent to which the conviction-related provisions apply retrospectively.

Background1

Australian Citizenship Amendment (Allegiance to Australia) Act 2015 The Government introduced the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the 2015 Bill) in June 2015.2 The Bill was controversial, and was substantially amended following an inquiry by the PJCIS, before being passed.3 The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (the 2015 Act) amended the Citizenship Act to include two new grounds on which dual citizens could lose their Australian citizenship, and to expand one of the existing grounds:

• Section 33AA of the Citizenship Act provides that a dual citizen aged 14 years or over renounces their Australian citizenship if the person ‘acts inconsistently with their allegiance to Australia’ by engaging in specified conduct (such as terrorist acts; foreign incursions; and providing or receiving training connected to preparations for, engagement in, or assistance in, a terrorist act).

• Section 35 of the Citizenship Act was expanded to provide that the Australian citizenship of a dual citizen aged 14 years or over ceases if the person fights for, or is in the service of, a

1. Parts of this section of the Digest have been reproduced, with some adaptations, from C Barker and C Petrie, Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018, Bills digest, 59, 2018-19, Parliamentary Library, Canberra, 12 February 2019, pp. 4-8.

2. Parliament of Australia, ‘Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 homepage’, Australian Parliament website. 3. Ibid.; M Harrison-Smith and C Barker, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, Bills digest, 15, 2015-16, Parliamentary Library, Canberra, 2 September 2015; Parliamentary Joint Committee on Intelligence and Security

(PJCIS), Advisory report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, PJCIS, Canberra, September 2015.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 6

terrorist organisation declared by the Minister under section 35AA (new in the 2015 Bill) or serves in the armed forces of a country at war with Australia (existing).

• Section 35A of the Citizenship Act allows the Minister to determine in writing that a dual citizen ceases to be an Australian citizen if:

- the person has been convicted of an offence or offences against one or more specified provisions (these include, amongst others, most offences against Part 5.3 (terrorism) and offences against Part 5.5 (foreign incursions and recruitment) of the Criminal Code Act 1995 (Criminal Code))

- the person has been sentenced to imprisonment for at least six years for the conviction/s - the Minister is satisfied that the conduct to which the conviction/s relate demonstrates that the person has repudiated their allegiance to Australia and - having regard to specified factors, the Minister is satisfied that it is not in the public interest

for the person to remain an Australian citizen. For the purposes of this Digest, conduct-based cessation refers to citizenship cessation under sections 33AA and 35 (and proposed section 36B) and conviction-based cessation refers to citizenship cessation under section 35A (and proposed section 36D) of the Citizenship Act.

A dual citizen may lose their Australian citizenship on any of the above grounds regardless of how they obtained that citizenship.

Threat environment and the potential usefulness of citizenship cessation

Foreign fighters The 2015 amendments were enacted in the context of terrorism threats associated with Australians fighting with overseas terrorist and insurgent groups (‘foreign fighters’) and different forms of ‘home-grown’ terrorism. A key concern was the potential threat posed by foreign fighters to domestic security upon their return. Citizenship revocation was one means through which Australia and other western nations sought to address those threats.4

The Australian Security Intelligence Organisation (ASIO) estimates that around 230 Australians (or then Australians) travelled to Syria and Iraq to fight with or support groups involved in the conflict, and that approximately 110 of them are now deceased.5 The agency is aware of around 40 individuals having returned to Australia from that conflict, the ‘vast majority’ of whom returned before 2016.6 Government agencies note that the number of Australians and others attempting to travel to Syria and Iraq to engage in politically motivated violence has reduced significantly, though ASIO ‘assesses individuals will continue to seek to travel to alternative conflict zones in support of extremist groups’.7 While noting that identifying an exact figure is likely impossible, ASIO stated that it is aware of around 80 Australian (or former Australian) adults remaining in the Syria-Iraq conflict area, along with an unidentified number of their children.8 As at August 2019,

4. Harrison and Barker, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, op. cit., pp. 4-5. 5. Australian Security Intelligence Organisation (ASIO) Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 11], 14 October 2019, pp. 3-4. 6. ASIO, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, [Submission

no. 21], 13 September 2019, p. 3. 7. Ibid., p. 4; Department of Home Affairs (DoHA), Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, [Submission no. 7], n.d., p. 8. 8. ASIO, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, op. cit., pp. 3-4.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 7

the Australian Federal Police (AFP) had 42 active arrest warrants in relation to alleged foreign fighters currently offshore.9

ASIO has contrasted the potential threat of the individuals who remain in Syria or Iraq with earlier returnees:

Unlike the majority of current returnees, who spent less than six months in the conflict zone, most of the Australian adults currently in Syria or Iraq will have been there for an extended period of time. We can expect the majority to have developed:

 a greater tolerance for and propensity towards violence as a result of exposure to it over an extended period of time—either directly or through Islamic State in Iraq and the Levant (ISIL) propaganda;

 increased capabilities as a result of military-type training and combat;

 networks of security concern as a result of their co-location with Islamist extremists from a diverse range of backgrounds; and

 established jihadist credentials as a result of activities undertaken while in Syria or Iraq. 10

Potential usefulness of citizenship cessation Having identified the potential threats posed by such individuals, ASIO noted that citizenship revocation, where it is available as an option, will not always be the most suitable approach:

In a globally interconnected world, the location of an individual offshore as a result of citizenship cessation will not eliminate any direct threat they pose to Australian (or other) interests overseas, and it will not prevent their reach-back into Australia to inspire, encourage or direct onshore activities that are prejudicial to security—including onshore attacks.

In some instances, citizenship cessation will curtail the range of threat mitigation capabilities available to Australian authorities. It may also have unintended or unforeseen adverse security outcomes— potentially including reducing one manifestation of the terrorist threat while exacerbating another. There may be occasions where the better security outcome would be that citizenship is retained, despite a person meeting the legislative criteria for citizenship cessation—for example, where the Australian Federal Police has criminal charges that could be pursued if the person were to remain an Australian citizen.

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Similarly, the AFP stated that its primary objective is to prosecute Australian foreign fighters where sufficient evidence exists to do so.12

9. Australian Federal Police (AFP), Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, [Submission no. 20], August 2019, p. 4. 10. ASIO, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, op. cit., p. 4. 11. Ibid., p. 5. 12. AFP, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, op. cit., p. 4.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 8

However, ASIO, the AFP and the Department of Home Affairs (the Department) have argued for the continued availability of citizenship revocation as one option, among others, for dealing with the threat posed by Australian foreign fighters.13 The Department stated:

As each terrorist threat is unique, what works to address one threat may not necessarily work for another. Australia’s counter-terrorism framework provides government and agencies with a range of measures to manage terrorist threats on a case-by-case basis. These measures include prosecutions in Australia or overseas for terrorism offences committed overseas, personal restrictions (such as control orders), continuing detention orders, participation in countering violent extremism programmes, mutual assistance to other countries, and citizenship cessation.

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While these agencies wish to retain citizenship cessation as an option for dealing with threats to national security, some security and legal experts have questioned the value of citizenship revocation as a national security tool. For example, in their submission to the PJCIS’s inquiry into the 2019 Bill, Dr Sangeetha Pillai and Professor George Williams point to Australia’s extensive counter-terrorism framework and argue that other powers, most notably the recently established temporary exclusion order regime, may be more appropriately used to manage threats posed by returning foreign fighters and individuals previously convicted for terrorism offences.15 In their submission, Dr Isaac Kfir and Dr John Coyne from the Australian Strategic Policy Institute argue that the rationale for national security-related citizenship cessation is flawed for several reasons, among them that:

• there is no substantive empirical evidence that the possibility of losing citizenship acts as a deterrent to engagement in violent extremism and

• citizenship cessation may weaken instead of protect Australia’s national security by: - feeding the narratives of terrorist groups - denying opportunities to ‘deradicalise’ and/or monitor the individuals concerned - ignoring the value of ‘formers’ in deradicalisation efforts and intelligence gathering and - meaning that foreign fighters and their families may seek new havens from which to engage

in terrorist activities.16

Citizenship losses under current provisions As at 18 October 2019, at least 17 people had lost their Australian citizenship under provisions amended or introduced by the 2015 Act, all under the conduct-based provisions.17 However, the Department has stated that due to the automatic operation of the conduct-based provisions, there may be cases where an individual’s Australian citizenship has ceased under the law, but the Government is not aware that has occurred.18

13. Ibid., pp. 4-6; ASIO, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, op. cit., pp. 5-6; DoHA, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, op. cit., pp. 3-4, 8.

14. DoHA, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, op. cit., p. 8. 15. S Pillai and G Williams, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 5], 14 October 2019, pp. 2-5. 16. I Kfir and J Coyne, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019,

[Submission no. 15], 13 October 2019, pp. 2-5. 17. L Geddes (Deputy Secretary, Citizenship and Social Cohesion, and Commonwealth Counter-Terrorism Coordinator, DoHA) and H Cook (Deputy Director-General, Intelligence Service Delivery, ASIO), Evidence to PJCIS, Review of the Australian Citizenship

Amendment (Citizenship Cessation) Bill 2019, (proof), 18 October 2019, pp. 46-47, 52. 18. P de Veau (General Counsel and First Assistant Secretary, Legal Division, DoHA), Evidence to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, 2 August 2019, pp. 50-51.

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The first instance of cessation under the new provisions was in early 2017, with the media reporting in February that year that Khaled Sharrouf had lost his Australian citizenship after travelling to Syria in 2013 and later joining the Islamic State group (IS).19 Sharrouf gained notoriety in Australia after releasing photographs of his young son holding the severed head of a Syrian soldier in Raqqa.20

In August 2018, the Minister for Home Affairs, Peter Dutton, announced that another five people had lost their Australian citizenship for ‘act[ing] contrary to their allegiance to Australia by engaging in terrorism-related conduct’ overseas.21 The Government did not want to confirm details about the individuals, but media reports stated that the five comprised three men and two women in their 20s and 30s.22

In November 2018, the Government stated that a further three individuals had since lost their citizenship ‘because of their involvement with terrorist organisations offshore’, taking the total since 2015 to nine.23

In December 2018, Minister Dutton announced that Neil Prakash had lost his Australian citizenship due to his involvement with IS.24 Prakash is currently serving a sentence for a terrorism conviction in Turkey, and Australia has applied for his extradition.25 The ABC reported in May 2017 that it understood that Prakash would ‘face charges including “membership of a terrorist organisation”, “advocating terrorism”, “providing support to a terrorist organisation” and “incursions into foreign countries with the intention of engaging in hostile activities”’ if he is extradited to Australia.26 Minister Dutton stated that Prakash was the twelfth dual citizen ‘whose Australian citizenship has ceased for actions contrary to their allegiance to Australia’.27

On 10 October 2019, The Australian reported that 17 people had now lost their Australian citizenship after the 2015 Act. It stated that Nabil Kadmiry was one of the five individuals who lost citizenship in 2019 and Zehra Duman was also believed to be in that group.28 The article stated

19. P Maley, ‘Anti-terrorism laws invoked for first time against Islamic State fighter: Sharrouf citizenship stripped’, The Australian, 11 February 2017, p. 1; J Norman and C Gribbin, ‘Islamic State fighter Khaled Sharrouf becomes first to lose citizenship under anti-terror laws’, ABC News (online), 11 February 2017. While the ABC reported that a spokesperson for the Minister for Immigration and Border Protection ‘confirmed a person involved in overseas terrorism had had their citizenship cancelled, but would not reveal that person's identity’, then Attorney-General George Brandis, stated in an interview: ‘Mr Sharrouf chose to renounce his Australian citizenship by the conduct he engaged in’: G Brandis (Attorney-General), Transcript of interview with Peter van Onselen, Sky News, media release, 13 February 2017.

20. P Maley and G Bearup, ‘That’s my boy: kids witness war’s horror’, The Australian, 11 August 2014, p. 1. 21. P Dutton (Minister for Home Affairs), Five foreign fighters lose Australian citizenship, media release, 9 August 2018. See also P Dutton (Minister for Home Affairs), Transcript of interview with Neil Mitchell, Radio 3AW, media release, 9 August 2018. 22. S Markson, ‘Terrorists stripped of Australian citizenship’, The Advertiser, 9 August 2018, p. 1; S Borys and L Yaxley, ‘Islamic

State involvement sees five Australian terrorists stripped of citizenship’, ABC News (online), 9 August 2018. 23. S Morrison (Prime Minister) and P Dutton (Minister for Home Affairs), Combatting Australian terrorists, joint media release, 22 November 2018. 24. P Dutton (Minister for Home Affairs), Neil Prakash stripped of Australian citizenship, media release, 29 December 2018. 25. M Guzel, ‘Turkey jails Prakash on terror charges’, The Sunday Age, 17 March 2019, p. 14; Department of Foreign Affairs and

Trade, Supplementary submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, [Submission no. 17.1], n.d., p. 2. 26. M Ross, ‘Neil Prakash: Islamic State recruiter to be extradited within months, Malcolm Turnbull says’, ABC News (online), updated 12 May 2017. While DoHA told the PJCIS that Australia is continuing to seek Prakash’s extradition to Australia, some

stakeholders have expressed concern that the Minister’s announcement about Prakash’s citizenship could jeopardise extradition proceedings: PJCIS, Official committee Hansard, (proof), 30 January 2019, pp. 44-45; Law Council of Australia (Law Council), Law Council of Australia's statement regarding Neil Prakash's citizenship status, media release, 4 January 2019; K Rubenstein, M Zagor and D Dalla-Pozza, Submission to PJCIS, Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 [Provisions], [Submission no. 13], 15 January 2019, p. 8. 27. Dutton, Neil Prakash stripped of Australian citizenship, op. cit. 28. G Chambers and M Schliebs, ‘Trump “will involve Australia” if action needed over Kurds’, The Australian, p. 1.

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that Kadmiry travelled to Syria in 2014 and was captured by Kurdish forces in March 2019.29 Duman reportedly travelled to Syria to join IS in 2014, married an Australian IS fighter and helped recruit for the terrorist organisation.30

Review of Citizenship Act cessation provisions In February 2018, the Minister for Immigration and Border Protection (now the Minister for Home Affairs) announced that he had asked his department to review amendments to the Citizenship Act 2007 made by the 2015 Act that allowed citizenship cessation in certain circumstances because he was concerned they were not working as they should.31

Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 On 28 November 2018 the Government introduced the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 (the 2018 Bill) into the House of Representatives.32 The Bill proposed different amendments to section 35A of the Citizenship Act to those proposed in the 2019 Bill. It did not proceed to second reading and lapsed when Parliament was prorogued ahead of the 2019 federal election.

The PJCIS’s report on the 2018 Bill included a minority report by Australian Labor Party (Labor) members of the Committee. In light of their significant concerns with the Bill, Labor members recommended that it not be passed and that the provisions introduced by the 2015 Act be referred immediately to the INSLM for review.33

Independent National Security Legislation Monitor review On 15 February 2019, the Attorney-General asked the INSLM to complete a review of the operation, effectiveness and implications of the amendments made by the 2015 Act by 15 August 2019.34

The INSLM’s report was provided to the Government in August 2019 and tabled on 18 September 2019.35 The INSLM concluded that justification exists for some form of law allowing for citizenship cessation on the basis of engagement in terrorist activity.36

Turning to the current provisions in the Citizenship Act, the INSLM considered that the conviction-based citizenship cessation powers are necessary and proportionate and generally contain

29. Ibid.

30. C Kelly, ‘How Melbourne schoolgirl Zehra Duman became Australia’s first ISIS bride’, The New Daily, 8 October 2019; E Potaka, ‘Exclusive: we spoke with Aussie Zehra Duman about why she joined Islamic State’, The Feed, SBS, 7 March 2019. 31. P Dutton (Minister for Immigration and Border Protection), Address to the National Press Club of Australia, Canberra, media release, 21 February 2018. 32. Parliament of Australia, ‘Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018

homepage’, Australian Parliament website; Barker and Petrie, Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018, op. cit. 33. Australian Labor Party (Labor) members, Minority report, PJCIS, Advisory report on the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018, The Senate, Canberra, February 2019. 34. J Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in

the Australian Citizenship Act 2007, Independent National Security Legislation Monitor, Canberra, 2019, p. v. 35. Ibid.

36. Ibid., p. 44: ‘The argument set out above in [chapter 6], read with my analysis of the current terrorism threat elsewhere in the report, seems to me to justify some laws which may result in cessation of Australian citizenship by dual-nationals on account of their terrorism activity. To be clear, I do not accept the submissions that such laws can never be justified.’ [emphasis in original]

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appropriate safeguards.37 However, he considered that the conduct-based cessation powers are neither necessary nor proportionate, and that they do not contain appropriate safeguards.38

The INSLM noted that sections 33AA and 35 apply such that a person’s citizenship ceases ‘then and there’ upon their engagement in certain conduct ‘by operation of law, without any further event or action such as conviction by a jury or decision by a minister, official, judge or Tribunal member’.39 He considered that the provisions:

(a) operate in an uncontrolled manner so that a person who has committed the most serious of offences and is an undoubted threat to Australia while remaining a citizen is treated the same as one whose behaviour is at the lowest end of the spectrums of criminal behaviour and is no longer any threat and has other significant mitigating circumstances

(b) operate in an uncertain manner: it will often not be possible for the authorities to know when citizenship has ceased …

(c) lack the traditional and desirable accountability which comes with a person, court or tribunal taking responsibility for a decision and being subject to constitutionally entrenched judicial review

(d) cause Australia to be in breach of its international obligations under the Convention on the Rights of the Child as the operation of law provisions pay no regard to the best interests of a child over 14

(e) will inevitably cause real unfairness in particular cases including because of the usual decision not to notify a former citizen they have lost Australian citizenship, even though that person may well take irrevocable and important steps, such as giving birth to more children, on the incorrect assumption they remain a citizen of Australia

(f) lack proper review rights …

(g) lack proper oversight in relation to allegations of maladministration because the Citizenship Review Board comprises both intelligence and non-intelligence personnel so that neither the IGIS nor the Ombudsman has sufficient jurisdiction

(h) potentially causes unintended and not easily contained effects on Australia’s relations with other countries

(i) cause confusion and potential legal difficulties for [the Australian Secret Intelligence Service] and [the Australian Signals Directorate] because of additional safeguards in the Intelligence Services Act when those agencies seek to exercise their powers in relation to Australian citizens

(j) may impede criminal prosecutions or cause them to fail because, variously:

i. where it is an element of the offence that an accused person was an Australian citizen (Criminal Code s 119.1-.2), or where that status is a jurisdictional requirement (Criminal Code s 15), the prosecution in a criminal trial may not be able to prove that status beyond reasonable doubt

ii. where an offence is committed wholly overseas by a person who was not then an Australian citizen, the Attorney-General must give consent before ‘proceedings are commenced’: Criminal

37. Ibid., pp. xiii, xv (see further pp. 43-45). 38. Ibid., pp. xiii-xv (see further pp. 45-58). 39. Ibid., p. xi.

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Code s 16, but if that status is not known the consent may not be obtained, potentially making the prosecution fail. 40

INSLM recommendations Accordingly, the INSLM recommended the conduct-based provisions be urgently repealed and replaced with provisions under which citizenship cessation is determined by the Minister and ‘proper safeguards’ apply.41 In particular, he recommended that the Minister be able to revoke a dual citizen’s Australian citizenship if he or she is reasonably satisfied that the relevant physical conduct element exists, and considers that there was a repudiation of allegiance to Australia such that it is not in the public interest for the person to remain an Australian citizen.42

The INSLM also made recommendations on the process and safeguards that should apply under the new provisions. Specifically, he recommended:

• that the Minister not be obliged to afford procedural fairness to a person (such as the right to make submissions or be made aware of adverse evidence against them) prior to revoking citizenship, but must give notice of the loss of citizenship and the right to request reconsideration, with the ability to delay giving notice for a maximum of six months

• that revocation decisions be subject to limited merits review in the Security Appeals Division of the Administrative Appeals Tribunal (AAT) on whether there is reasonable satisfaction as to the existence of the requisite conduct for citizenship loss.43

Agency support for a Ministerial decision making model ASIO, AFP and the Department have acknowledged that the automatic operation of the existing conduct-based cessation provisions presents a range of challenges, including impeding prosecution of certain offences and not allowing agencies the flexibility to manage individuals based on an assessment of the particular circumstances of each case.44 ASIO stated:

ASIO is supportive of an alternative model for citizenship cessation where full and thorough consideration can be given to each citizenship cessation case, including having regard to whether ceasing an individual’s Australian citizenship would reduce the threat and protect Australia and its interests from that harm.

A ministerial decision-making model of cessation would allow ASIO and other relevant agencies scope to advise against citizenship cessation in circumstances where the outcome would be prejudicial to security or where the security risk could be better managed utilising other options. At present, the current operation of law provision does not provide operational agencies with the flexibility required to utilise citizenship cessation to maximum effect.

45

40. Ibid., p. xiv. 41. Ibid., p. xv. 42. Ibid., (see further pp. 58-59). 43. Ibid., pp. xv-xvi (see further pp. 58-62). 44. ASIO, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, op. cit.,

pp. 4-6; AFP, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, op. cit., p. 5; DoHA, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, op. cit., p. 8. 45. ASIO, Submission to PJCIS, Review of the Australian citizenship renunciation by conduct and cessation provisions, op. cit., pp. 5-6.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 13

Statelessness in international law Australia has ratified both the 1954 Convention Relating to the Status of Stateless Persons (1954 Convention) and 1961 Convention on the Reduction of Statelessness (1961 Convention) which create obligations to afford certain rights to stateless persons and implement measures to prevent and reduce statelessness.46 Under the Conventions, a person is stateless if they are not considered a national by any state under the operation of its law.47

Australia is also a party to a number of other international instruments, including the International Covenant on Civil and Political Rights, which recognise the right to acquire a nationality.48 These instruments do not create a general positive obligation on states to confer nationality on stateless persons, though this duty may arise in specified circumstances.49 For example, article 1 of the 1961 Convention requires states to grant nationality to a child born in their territory who would otherwise be stateless.50

International law also constrains the circumstances in which a state can revoke citizenship. In particular, article 8(1) of the 1961 Convention provides that a state is not to deprive a person of its nationality if doing so would render the person stateless.

There are limited exceptions to this obligation, the main one being where the person has acquired citizenship through misrepresentation or fraud.51 Article 8(3) provides a further exception if, at the time of signing, ratifying or acceding to the Convention, a state made a declaration retaining an existing right under its domestic law to deprive the citizenship of a person in certain cases, including where, ‘inconsistently with his duty of loyalty to the Contracting State’, the person ‘has conducted himself in a manner seriously prejudicial to the vital interests of the State’.52

Australia did not make a declaration when acceding to the Convention in 1973, and no such basis for depriving citizenship existed in Australian law at the time. In contrast, the United Kingdom retained the right to deprive citizenship on this ground.53

The implications of the Bill’s proposed changes for issues of statelessness are discussed under ‘Key issues and provisions’ below.

46. Convention Relating to the Status of Stateless Persons, done in New York 28 September 1954, [1974] ATS 20 (entered into force generally on 6 June 1960 and for Australia on 13 March 1974); Convention on the Reduction of Statelessness, (1961 Convention), opened for signature 30 August 1961, [1975] ATS 46, (entered into force for Australia and generally 13 December 1975); also see Refugee Council of Australia, Statelessness in Australia, Sydney, August 2015, p. 10.

47. Convention Relating to the Status of Stateless Persons, op. cit., article 1(1). 48. See, for example, United Nations, The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948, art. 15; International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except art. 41) on 13 November 1980), art. 24(3);

Convention on the Rights of the Child, done in New York 20 November 1989, [1991] ATS 4 (entered into force for Australia 16 January 1991), art. 7; Convention on the Rights of Persons with Disabilities, done in New York on 13 December 2006, opened for signature 30 March 2007, [2008] ATS 12 (entered into force for Australia 16 August 2008), art. 18; Attorney-General’s Department (AGD), ‘Right to a name and acquire a nationality’, AGD website. 49. M Foster, J McAdam and D Wadley, ‘Part one: The protection of stateless persons in Australian law : the rationale for a

statelessness determination procedure’, Melbourne University Law Review, 40(2), 2016, pp. 406-408. 50. Subsection 21(8) of the Australian Citizenship Act 2007 (Citizenship Act) provides that a stateless person born in Australia is eligible to apply for citizenship by conferral. 51. 1961 Convention, art. 8(2)(b). 52. 1961 Convention, art. 8(3)(a)(ii). 53. S Tully, ‘Citizen deleted’, Australian Year Book of International Law, 33, 2015, accessed via EbscoHost database, pp. 145-148.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 14

Committee consideration

Parliamentary Joint Committee on Intelligence and Security The 2019 Bill has been referred to the PJCIS for inquiry and report, with a report expected by 1 December 2019. Details of the inquiry are at the inquiry homepage. Some of the evidence presented to the PJCIS for this inquiry is included in the ‘Position of major interest groups’ and ‘Key issues and provisions’ sections of this Digest.

The PJCIS is concurrently completing a review of the amendments made by the 2015 Act required under the Intelligence Services Act 2001 by 1 December 2019.54 Details of that inquiry are at the inquiry homepage.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) had concerns about several aspects of the 2019 Bill. It requested that the Minister provide:

• more detailed justification for: - changing the statelessness test - reducing the sentence threshold that applies for conviction-based citizenship cessation - providing the Minister with a ‘broad discretionary power’ to cease a person’s citizenship

under the conduct and conviction-based provisions by reference to the Minister’s subjective satisfaction that the person has repudiated his or allegiance to Australia - providing the Minister with the power to cease a person’s citizenship under the conduct-based provision based ‘merely on the minister’s satisfaction of the key matters rather than

the existence of those matters in fact’ and - providing for declarations of terrorist organisations for the purposes of the citizenship cessation provisions instead of listing them in primary legislation • more detailed advice on:

- why determinations ceasing a person’s citizenship are not subject to independent merits review - why the Minister should not be obliged to observe the requirements of natural justice when making a determination to cease a person’s citizenship - whether the Bill provides for adequate judicial oversight of the factual determinations on

which decisions to cease a person’s citizenship and decisions about whether to revoke a citizenship cessation determination are based and - the necessity and appropriateness of significantly expanding the retrospective application of the citizenship cessation powers and • advice on whether the notice requirements for citizenship cessation determinations should be

amended to require (instead of allow) the Minister to give additional notice if the first notice was not received and the Minister is aware of the person’s electronic address, with consequential amendment to provisions about applications for revocation of determinations.55

The Minister’s response was included in the Committee’s digest on 13 November 2019.56 It noted the consistency of a number of the Bill’s provisions with the recommendations of the INSLM, and

54. Intelligence Services Act 2001, paragraph 29(1)(ca). 55. Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Scrutiny digest, 7, 2019, The Senate, 16 October 2019, pp. 5-15. 56. Scrutiny of Bills Committee, Scrutiny digest, 8, 2019, The Senate, 13 November 2019, pp. 43-61.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 15

the inclusion of various safeguards to allow an affected person to challenge a cessation decision. In relation to the provision of notice of a citizenship cessation determination, the Minister stated he would consider amending certain aspects of the proposed provisions in accordance with the Committee’s recommendations.57 In considering the Minister’s response to the other issues raised, the Committee reiterated its scrutiny concerns and left the matters for the consideration of the Senate as a whole.

The Minister’s response to particular issues raised by the Committee is discussed in further detail under ‘Key issues and provisions’ below.

Policy position of non-government parties/independents At the time of publication of this Bills Digest, there did not appear to be any public indication of the policy position of non-government parties and independents on the 2019 Bill.

Position of major interest groups

Non-government stakeholders Stakeholders welcomed the repeal of the existing conduct-based cessation provisions.58 However, several stakeholders considered that all of the national security-related cessation provisions should be repealed in their entirety instead of amended as proposed by the 2019 Bill, 59 or that cessation should be possible only after conviction for a relevant offence.60 If such provisions are to be retained, stakeholders recommended a range of amendments to the 2019 Bill to reduce their scope and strengthen safeguards.

An overview of key issues raised in non-government stakeholder submissions to the PJCIS’s inquiry into the 2019 Bill is set out in Table 1 below. Further detail is included in the ‘Key issues and provisions’ section of this Digest.

57. Ibid., pp. 56-58. 58. Pillai and Williams, Submission to PJCIS, op. cit., pp. 1-2; Law Council, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 18], 17 October 2019, p. 11; Australian Human Rights Commission (AHRC), Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019,

[Submission no. 7], 14 October 2019, pp. 3, 12; Science Party, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 4], 14 October 2019, p. 1; R Thwaites, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 9], 14 October 2019, p. 2. 59. Pillai and Williams, Submission to PJCIS, op. cit., pp. 2-5; Science Party, Submission to PJCIS, op. cit., pp. 1-2; Thwaites,

Submission to PJCIS, op. cit., p. 15; Australian Centre for International Justice (ACIJ), Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 10], 14 October 2019, p. 8; Peter McMullin Centre on Statelessness, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 19], 16 October 2019; K Rubenstein, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 3], 13 October 2019, p. 2; Immigration Advice and Rights Centre (IARC), Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 8], [incorrectly dated], p. 1; Liberty Victoria, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 14], 15 October 2019, pp. 2-6 (while the submission states that the Bill should not be passed and the ‘automatic citizenship loss’ provisions should be repealed, it appears to argue against retention of any of the national security-related citizenship cessation provisions). A further submission strongly criticised and questioned the rationale for all of the national security-related citizenship cessation provisions but did not explicitly call for their repeal: Kfir and Coyne, Submission to PJCIS, op. cit., pp. 1-6. 60. Law Council, Submission to PJCIS, op. cit., p. 10; AHRC, Submission to PJCIS, op. cit., pp. 3, 13-14.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 16

Table 1: key issues raised in stakeholder submissions to the PJCIS’s inquiry into the 2019 Bill Issue Submission author

Citizenship revocation is not an effective means of addressing national security concerns, or has the potential to exacerbate rather than reduce risks to security.

Dr Isaac Kfir and Dr John Coyne

Dr Sangeetha Pillai and Professor George Williams

Professor Kim Rubenstein

Australian Centre for International Justice (ACIJ)

Liberty Victoria

Citizenship deprivation powers, and attempts at their expansion, threaten the principles of integrity, stability and equality of Australian citizenship.

Dr Rayner Thwaites

Professor Kim Rubenstein

Liberty Victoria

Reducing the sentence threshold for conviction-based citizenship cessation from six to three years, including that the amendment:

• is not proportionate

• lacks justification and

• is inconsistent with a 2015 recommendation of the PJCIS that was accepted and implemented by the Government at the time.

Dr Sangeetha Pillai and Professor George Williams

Law Council of Australia (Law Council)

Australian Human Rights Commission (AHRC)

Dr Rayner Thwaites

Liberty Victoria

Lowering the threshold for determining dual citizenship will increase the risk of a person becoming stateless by allowing the Minister to make a citizenship cessation determination if reasonably but mistakenly satisfied that the person will not become stateless, and narrowing the scope for judicial review.

Law Council

AHRC

Science Party

Castan Centre for Human Rights Law

Dr Rayner Thwaites

Liberty Victoria

Peter McMullin Centre on Statelessness

Federation of Ethnic Communities’ Councils of Australia (FECCA)

United Nations High Commissioner for Refugees (UNHCR)

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 17

Issue Submission author

Increased retrospective application of cessation provisions, including lack of sufficient justification in supporting material and inconsistency with a 2015 recommendation of the PJCIS that was accepted and implemented by the Government at the time.

Dr Sangeetha Pillai and Professor George Williams

Law Council

AHRC

Professor Kim Rubenstein

Dr Rayner Thwaites

Liberty Victoria

The lack of merits review of determinations ceasing a person’s citizenship, despite the INSLM’s recommendation that such review be available, means there will inadequate oversight of the Minister’s powers.

Law Council

AHRC

Professor Kim Rubenstein

Castan Centre for Human Rights Law

Dr Rayner Thwaites

Liberty Victoria

Peter McMullin Centre on Statelessness

FECCA

The exclusion of natural justice requirements in the making of a cessation determination, and limitations of the notice provisions, may mean that there are inadequate procedural safeguards.

Castan Centre for Human Rights Law

AHRC

Dr Rayner Thwaites

Law Council

Liberty Victoria

The expansion of the circumstances in which citizenship can be revoked may raise questions about the constitutional validity of the Bill.

Dr Sangeetha Pillai and Professor George Williams

Law Council

Immigration Advice and Rights Centre

Liberty Victoria

Human rights implications and potential inconsistency with international law/obligations.

Castan Centre for Human Rights Law

Peter McMullin Centre on Statelessness

UNHCR

AHRC

ACIJ

Prosecute; don’t perpetrate

Source: Submissions to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 18

Operational agencies As noted above, ASIO and the AFP have acknowledged that the automatic operation of the existing conduct-based cessation provisions presents a range of challenges. Both agencies support the alternative model recommended by the INSLM and proposed in the 2019 Bill.61

Financial implications The Explanatory Memorandum states that the financial impact of the 2019 Bill is low and that any costs will be met from within existing resources.62

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 2019 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 has assessed the 2019 Bill as engaging a number of human rights, including the right to freedom of movement and choice of residence, right to enter one’s own country, equality before the courts and tribunals, and the best interests of the child. However, it considers that the Bill is compatible, claiming that to the extent that the provisions limit human rights, the limitations are reasonable, necessary, balanced with safeguards, and proportionate to the Bill’s purpose of providing for the cessation of citizenship of persons who ‘through certain conduct incompatible with the shared values of the Australian community, sever that bond and repudiate their allegiance to Australia’.63

A number of human rights bodies have argued that parts of the 2019 Bill are not compliant with Australia’s international human rights obligations. The AHRC has stated that although the Bill improves the human rights compatibility of the citizenship loss regime through the repeal of self-executing citizenship loss provisions, ‘several aspects of the Bill do not remedy previously identified human rights concerns’ while other aspects ‘also create new human rights concerns’.64

The concerns about the Bill’s compatibility related to the following human rights:

• the right to enter and remain in one’s own country, provided for under article 12(4) of the International Covenant on Civil and Political Rights (ICCPR)65

• the rights of the child under the Convention on the Rights of the Child,66 including the right of children to preserve their identity, including nationality and family relations, and requirement on governments to consider the best interests of the child in decision-making67

61. ASIO, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, op. cit., p. 5; AFP, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 17], October 2019, pp. 4-5.

62. Explanatory Memorandum, Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, p. 2. 63. The Statement of Compatibility with Human Rights is provided as Attachment A to the Explanatory Memorandum to the Bill. 64. AHRC, Submission to PJCIS, op. cit., p. 4. 65. International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force

for Australia (except art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1994); see also AHRC, Submission to PJCIS, op. cit., pp. 10-11; Castan Centre for Human Rights, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 6], October 2019, pp. 10-11. 66. Convention on the Rights of the Child, done in New York 20 November 1989, [1991] ATS 4 (entered into force for Australia 16 January 1991). 67. AHRC, Submission to PJCIS, op. cit., pp. 11, 32-33.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 19

• international obligations regarding statelessness and arbitrary deprivation of nationality (as discussed above under ‘Statelessness and international law’)68 and

• the prohibition against retrospective criminal laws under article 15(1) of the ICCPR, including the imposition of a heavier penalty than was applicable at the time the offence was committed.69

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights had not yet reported on the 2019 Bill at the time of publication of this Bills digest.

Key issues and provisions The 2019 Bill will implement the INSLM’s key recommendation of replacing the automatic operation of the existing conduct-based cessation provisions with a model based on ministerial determination that takes account of whether an individual’s conduct represents a repudiation of his or her allegiance to Australia and whether citizenship revocation is in the public interest in the particular circumstances of each case. It will also reduce the sentence threshold for consideration of citizenship revocation based on conviction for certain offences, reduce the dual citizenship threshold, and increase the extent to which the provisions apply retrospectively. The Bill also introduces a mechanism by which a person can request that the Minister revoke a citizenship cessation determination. However, unlike the model recommended by the INSLM, the Bill does not provide for any merits review of citizenship cessation decisions.

Basis for Ministerial cessation determination The proposed amendments will allow the Minister to cease the citizenship of a person:

• under proposed subsection 36B(1) on the basis of prescribed conduct (‘conduct-based cessation’) or

• under proposed subsection 36D(1) on the basis of the person’s conviction for a prescribed offence and a sentence of a total period of imprisonment of at least three years (conviction-based cessation).

Under both provisions, the Minister will also be required to be satisfied that:

• the relevant conduct demonstrates that the person has repudiated their allegiance to Australia70 and

• that it would be contrary to the public interest for the person to remain an Australian citizen.71

Under both provisions, the Minister is not permitted to make a citizenship cessation if the Minister is satisfied that a person would then become ‘a person who is not a national or citizen of any country’; that is, a stateless person (the ‘stateless person exception’). The same stateless person

68. AHRC, Submission to PJCIS, op. cit., pp. 12, 29-31; Castan Centre for Human Rights, Submission to PJCIS, op. cit., pp. 5-10; United Nations High Commissioner for Refugees (UNHCR), Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 12], 14 October 2019, pp. 4-8; Peter McMullin Centre on Statelessness, Submission to PJCIS, op. cit., pp. 6-9.

69. AHRC, Submission to PJCIS, op. cit., pp. 34-37. 70. Proposed subsection 36B(1)(b) or 36D(1)(c). 71. Proposed subsection 36B(1)(c) or 36D(1)(d).

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 20

exception is currently used in other provisions of the Citizenship Act relating to citizenship revocation on the basis of offences or fraud or special residence requirements.72

Conduct-based cessation provisions

Existing provisions The Citizenship Act currently provides that a person aged 14 years or over, who is a national or citizen of another country:

• renounces their Australian citizenship if they act ‘inconsistently with their allegiance to Australia’ by engaging in specified conduct (such as terrorist acts; foreign incursions; and providing or receiving training connected to preparations for, engagement in, or assistance in, a terrorist act) (section 33AA) or

• ceases to be an Australian citizen if they fight for, or are in the service of, a terrorist organisation declared by the Minister under section 35AA or serve in the armed forces of a country at war with Australia (section 35).

Both provisions currently apply such that a person’s citizenship ceases immediately upon their engagement in certain conduct, by operation of law.73

INSLM criticism The INSLM considered that having a person’s citizenship cease automatically, in the absence of any consideration about the particular circumstances of each case, was neither necessary nor appropriate, and had ‘serious problems in the international law context’.74 Accordingly, the INSLM recommended that these provisions be urgently repealed and replaced with provisions under which citizenship cessation is determined by the Minister and ‘proper safeguards’ apply.75

In response to the INSLM’s recommendation, the 2019 Bill will repeal and replace those provisions.76 This Digest focuses on the differences between the current and proposed provisions.

Proposed provisions Proposed section 36B will cease a person’s citizenship when they engage in the specified conduct (which will be the same as under existing sections 33AA and 35), but only after a determination is made by the Minister.77 To make such a determination, the Minister must be satisfied that:

• a person aged 14 years or older: - engaged in conduct specified in proposed subsection 36B(5) while outside Australia or

72. Citizenship Act, subsections 34(3) and 34A(2) (see also subsection 36(3), concerning children of responsible parents who cease to be citizens under certain provisions). 73. Citizenship Act, subsections 33AA(9) and 35(2). 74. Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in

the Australian Citizenship Act 2007, op. cit., pp. xiii-xiv, 13 (see further pp. 5-13 (international obligations), 45-58 (INSLM consideration)). The INSLM considered that the ‘operation of law’ provisions breach the Convention on the Rights of the Child because the best interests of the child are not considered at the point of citizenship cessation; the other problems listed by the INSLM in the context of international obligations related to the potential for incorrect decisions about whether a person is a dual citizen, possible failure of due process and lack of necessity and proportionality (p. 13). 75. Ibid., pp. xv-xvi (see further pp. 58-62). 76. Explanatory Memorandum, p. 1. 77. Much of proposed section 36B mirrors provisions that currently exist in sections 33AA and 35. This Digest focuses mainly on

the differences between the existing and proposed provisions. Proposed section 36C (declared terrorist organisation) replicates (with one small change) existing section 35AA of the Citizenship Act, which will be repealed by item 8 of Schedule 1 of the 2019 Bill (instead of referring to a person ‘acting inconsistently with’ their allegiance to Australia, proposed paragraph 36C(2)(b) refers to a person ‘repudiating’ their allegiance to Australia).

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 21

- engaged in conduct specified in any of proposed paragraphs 36B(5)(a)-(h) while in Australia, has since left Australia and has not been tried for an offence in relation to that conduct78 • the conduct demonstrates that the person has repudiated their allegiance to Australia and

• it would be contrary to the public interest for the person to remain an Australian citizen.79

The Minister must not make such a determination if satisfied that the person would, if the determination were made, become stateless (see below under ‘Statelessness test’).80

The rules of natural justice will not apply to the making of a decision or the exercise of a power under proposed section 36B.81 This means the Minister is not required to advise the person of the case against them, and provide an opportunity to respond, prior to making a decision.82 However, a person may apply to the Minister for revocation of a determination, and the Minister will be required to observe the rules of natural justice in considering such an application (see below under ‘Minister’s discretion to rescind citizenship cessation’).

Intent behind conduct Subsection 33AA(3) of the Citizenship Act currently provides that the cessation provision only applies when the specified conduct was done:

(a) with the intention of advancing a political, religious or ideological cause; and

(b) with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

The listed intentions are the same as the intentions in the definition of ‘terrorist act’ used in the Criminal Code.83

The above intention-based limitation on the conduct captured will not apply to that same conduct as specified in proposed paragraphs 36B(5)(a)-(h). The Explanatory Memorandum explains this change as follows:

The omission of the intent element from new section 36B is supported by the requirement that a person has repudiated their allegiance to Australia, as it serves to narrow the class of people that may otherwise be subject to the provisions. 84

The Scrutiny of Bills Committee was concerned about this change, and the Law Council considered that the requirement for the conduct to be done with the intent outlined above should be

78. The conduct set out in proposed paragraphs 36B(5)(a)-(h) is the same as currently set out in subsection 33AA(2). The conduct set out in proposed paragraphs 36B(5)(i) and (j) is the same as currently set out in subsection 35(1). The conduct in proposed paragraphs 36B(5)(i) and (j) may only be the basis for citizenship cessation if engaged in outside Australia, as is currently the case under subsection 35(1).

79. Proposed subsection 36B(1). 80. Proposed subsection 36B(2). 81. Proposed subsection 36B(11). 82. Australian Law Reform Commission (ALRC), Traditional rights and freedoms—encroachments by Commonwealth laws, Issues

paper, 46, ALRC, Sydney, 2014, pp. 97-99. 83. Criminal Code Act 1995, section 100.1. 84. Explanatory Memorandum, p. 8.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 22

retained on the basis that ‘intention as well as conduct is necessary to justify the significant step of stripping a person of citizenship, particularly where it is being done in the absence of a person being convicted in a court of a criminal offence’.85

Proposed subsection 36B(7) will replicate the limitations on when a person is taken to be in the service of a declared terrorist organisation in existing subsection 35(4) of the Citizenship Act.

Public interest test Proposed section 36B requires the Minister to determine whether it would be contrary to the public interest for a person to remain an Australian citizen. Under proposed section 36E the Minister must consider the same factors as currently specified when determining whether to exempt a person from the operation of current sections 33AA and 35, in particular:

• the severity of the relevant conduct

• the degree of threat posed by the person to the Australian community

• the person’s age

• if the person is under 18 years of age, the best interests of the child as a primary consideration

• whether the person is being or is likely to be prosecuted for the relevant conduct

• the person’s connection to the other country of which they are a national or citizen, and the availability of the rights of citizenship of that country to the person

• Australia’s international relations and

• any other matters of public interest.

Application of the new provisions Current sections 33AA and 35 of the Citizenship Act apply to conduct engaged in on or after 12 December 2015.86 Proposed section 36B will have broader retrospective application.87 See under ‘Retrospective application’ below.

Conviction-based cessation provisions

Existing provisions Currently, section 35A of the Citizenship Act allows the Minister to determine in writing that a person ceases to be an Australian citizen if:

• the person has been convicted of an offence or offences against:

- Subdivision A of Division 72 of the Criminal Code (international terrorist activities using explosive or lethal devices) - Subdivision B of Division 80 of the Criminal Code (treason) - Division 82 of the Criminal Code (sabotage), other than section 82.9 (preparing or planning

for a sabotage offence) - Division 91 of the Criminal Code (espionage) - Division 92 of the Criminal Code (foreign interference)

85. Scrutiny of Bills Committee, Scrutiny digest, 7, 2019, op. cit., pp. 5-6; Law Council, Submission to PJCIS, op. cit., pp. 12-13 (quote taken from p. 12). 86. See clause 2 and item 8 of Schedule 1 to the Australian Citizenship Amendment (Allegiance to Australia) Act 2015. 87. Item 18 of Schedule 1.

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- Part 5.3 of the Criminal Code (terrorism), other than: section 102.8 (associating with terrorist organisations), Division 104 (control orders) or Division 105 (preventative detention orders) - Part 5.5 of the Criminal Code (foreign incursions and recruitment, including entering or remaining in a declared area) and/or - section 6 (foreign incursions) or 7 (preparations for foreign incursions) of the repealed

Crimes (Foreign Incursions and Recruitment) Act 197888 • the person has been sentenced to imprisonment for at least six years for the conviction/s

• the person is a national or citizen of a country other than Australia at the time of the determination

• the Minister is satisfied that the conduct to which the conviction/s relate demonstrates that the person has repudiated their allegiance to Australia and

• having regard to specified factors, the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen.

Proposed provisions Proposed section 36D will largely replicate provisions currently in section 35A (which will be repealed by the 2019 Bill).

However, the 2019 Bill will make two key changes—it will:

• lower the minimum sentence threshold from six years to three years (see below) and

• change the statelessness test (see below under ‘Statelessness test’).

The Bill will also change the point at which the rules of natural justice apply. Under section 35A, the rules of natural justice apply to decisions by the Minister under subsection 35A(1) to cease a person’s citizenship (in accordance with a PJCIS recommendation on the 2015 Bill).89 The rules of natural justice will not apply to the making of a decision or the exercise of a power under proposed section 36D.90 This means the Minister is not required to advise the person of the case against them, and provide an opportunity to respond, prior to making a decision.91 However, a person may apply to the Minister for revocation of a determination, and the Minister will be required to observe the rules of natural justice in considering such an application (see below under ‘Minister’s discretion to rescind citizenship cessation’).

Lowering the sentence threshold The 2015 Bill as introduced did not require that a person be sentenced to any minimum period of imprisonment before they could lose their Australian citizenship on the basis of one or more convictions. Following its consideration of that Bill, the PJCIS recommended that the Minister only be able to revoke a person’s citizenship following conviction where a sentence of at least six years imprisonment, or multiple sentences totalling at least six years imprisonment, had been

88. The list of offences for which conviction may lead to citizenship cessation under section 35A was updated in 2018 to include new foreign interference offences and updated treason, sabotage and espionage offences: National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, Part 2 of Schedule 1. The Explanatory Memorandum to the 2019 Bill includes a table setting out all of the offences captured by section 35A/proposed section 36D at pages 21-23.

89. Citizenship Act, subsection 35A(11); PJCIS, Advisory report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, op. cit., chapter 6 (Recommendation 7). The PJCIS considered that there would be ‘no need for the rules of natural justice to be excluded from a ministerial discretion because the criminal conviction that would trigger the revocation power would be on the public record’ (p. 116).

90. Proposed subsection 36D(9). 91. ALRC, Traditional rights and freedoms—encroachments by Commonwealth laws, op. cit., pp. 97-99.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 24

imposed.92 The PJCIS considered that restricting the operation of the provision on the basis of offence was not sufficient on its own:

While limiting the provision to more serious offences is an appropriate measure to better define the scope of conduct leading to revocation, the Committee notes that even following a conviction there will still be degrees of seriousness of conduct and degrees to which conduct demonstrates a repudiation of allegiance to Australia. Therefore, the Committee recommends that loss of citizenship under this provision not be triggered unless the person has been given sentences of imprisonment that together total a minimum of six years for offences listed in the Bill.

Some members of the Committee were of the view that a lower or higher threshold was preferable; however, on balance it was considered that a six year minimum sentence would clearly limit the application of proposed section 35A to more serious conduct. It was noted that three years is the minimum sentence for which a person is no longer entitled to vote in Australian elections. Loss of citizenship should be attached to more serious conduct and a greater severity of sentence, and it was considered that a six year sentence would appropriately reflect this.

93

The 2018 Bill would have removed the sentence threshold entirely for certain offences, while retaining the six-year threshold for others. The proposed removal of the threshold was supported by former INSLM Bret Walker, but opposed by academics and organisations that made submissions to the PJCIS’s inquiry into that Bill.94

The 2019 Bill will instead reduce the sentence threshold from six to three years. The Government has provided limited justification for this proposed change, only stating that the revised threshold ‘reflects the seriousness of a criminal conviction for a terrorism offence’.95

This change was not recommended by the INSLM. Given that the INSLM found section 35A to be necessary and proportionate on the basis of the current thresholds, including ‘a substantial sentence of imprisonment of six years or more’ imposed by a court, Parliament might have expected that more detailed justification would be provided for a proposal to apply the provision to less serious conduct.96

The Scrutiny of Bills Committee and several stakeholders noted the lack of justification for this change.97 They noted the PJCIS’s 2015 recommendation and the rationale behind it, and considered that amending this threshold could lead to disproportionate and unjust outcomes, and possibly weaken the connection between the law and the relevant constitutional head of power.98

92. PJCIS, Advisory report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, op. cit., chapter 6 (Recommendation 7). 93. Ibid., pp. 115-116. Footnote references have been omitted from this quotation and can be viewed in the source document. 94. Barker and Petrie, Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018, op. cit.,

pp. 15-17. 95. P Dutton, ‘Second reading speech: Australian Citizenship Amendment (Citizenship Cessation) Bill 2019’, House of Representatives, Debates, 19 September 2019, pp. 3601-3603. The same statement was included in DoHA’s submission to the

PJCIS’s inquiry into the Bill and a similar statement appears in the Explanatory Memorandum: DoHA, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 16], n.d., p. 6; Explanatory Memorandum, p. 18 (‘A sentence of imprisonment for a period of at least 3 years, or periods that total at least 3 years reflects the seriousness of a criminal conviction for one of the terrorism-related offences specified in new subsection 36D(5)’). 96. Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in

the Australian Citizenship Act 2007, op. cit., p. 45. 97. Scrutiny of Bills Committee, Scrutiny digest, 7, 2019, op. cit., pp. 9-10; Law Council, Submission to PJCIS, op. cit., pp. 15-17; AHRC, Submission to PJCIS, op. cit., pp. 14-16; Liberty Victoria, Submission to PJCIS, op. cit., pp. 4-5; Thwaites, Submission to

PJCIS, op. cit., pp. 8-10 (see p. 10 re connection to head of power); Pillai and Williams, Submission to PJCIS, op. cit., p. 5. 98. Ibid.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 25

The Scrutiny of Bills Committee sought more detailed justification from the Minister.99 The Minister stated that lowering this threshold ‘better acknowledges the seriousness of conduct that has resulted in conviction for a terrorism offence’; and that while conviction will prompt consideration for citizenship cessation, that consideration will also have regards to factors such as the severity of the conduct involved.100 The Committee did not consider that this response adequately explained why the amendment is necessary or appropriate, and drew its concerns to the attention of Senators.101

Application of the new provisions Current section 35A of the Citizenship Act applies to:

• convictions obtained between 12 December 2005 and 11 December 2015 for which a person was sentenced to at least 10 years imprisonment and

• convictions obtained from 12 December 2015 onwards for which a person was sentenced to at least six years imprisonment. 102

As outlined below, proposed section 36D will have broader retrospective application.103

Statelessness test Currently, only a person ‘who is a national or citizen of a country other than Australia’ (a ‘dual citizen’) can have their citizenship ceased under sections 33AA, 35 and 35A.104 The dual citizen requirement is a precondition for the Minister’s decision. Just as a person must be 14 years old before the Minister has power to order a citizenship cessation under those sections, so the person must also be a dual citizen.

This means the Minister currently has to have evidence of a person’s dual citizenship before the Minister can make a determination. If there is not sufficient evidence for the Minister to be satisfied that the person has dual citizenship, the Minister has no jurisdiction and cannot proceed. This also has implications on review. Currently, if the Minister makes an error about the person’s citizenship status when making a determination, that is a jurisdictional error and a person could apply to the High Court or Federal Court for judicial review.

By contrast, proposed subsections 36B(2) and 36D(2) will prevent the Minister from making a cessation determination only if the Minister is satisfied the person would then ‘become a person who is not a national or citizen of any country’ (that is, a stateless person). The Explanatory Memorandum does not provide a reason for the change, stating only that it ‘differs slightly’ from existing provisions. It explains that under the proposed provisions:

… the Minister needs to be satisfied that the person would not become a person who is not a national or citizen of any country. The Minister will be required to turn his or her mind to the issue, using the materials available to him or her at the time. 105

99. Scrutiny of Bills Committee, Scrutiny digest, 7, 2019, op. cit., p. 10. 100. Scrutiny of Bills Committee, Scrutiny digest, 8, 2019, op. cit., pp. 54-55. 101. Ibid., pp. 55-56. 102. See clause 2 and item 8 of Schedule 1 to the Australian Citizenship Amendment (Allegiance to Australia) Act 2015. 103. Item 19 of Schedule 1. 104. Citizenship Act, subsection 33AA(1), paragraphs 35(1)(a) and 35A(1)(c). 105. Explanatory Memorandum, pp. 10, 20.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 26

However, this is not an accurate explanation of the test the Minister must apply. Under the proposed changes, the Minister does not have to be satisfied that the person would not become stateless before making a cessation determination. The Minister is only prevented from making a determination if he or she is positively satisfied that a person would be stateless if their Australian citizenship was ceased. Looking for evidence of either another nationality, or of no nationality, is not required for the Minister to lawfully exercise the cessation power.

While the Minister’s determination must be based on the available evidence, under the proposed statelessness test, the onus of obtaining evidence no longer falls on the Minister but on the person subject to the determination. Additionally, their opportunity to produce such evidence under the terms of the Bill will only arise after the determination has been made. Provided there is some suggestion that the person might have another citizenship, and possibly in the absence of any evidence at all, the Minister is entitled to conclude that he or she cannot be satisfied that the person will become stateless.

In submissions to the PJCIS inquiry, legal bodies, academics and human rights groups raised concerns that the Bill has the potential to breach Australia’s international obligations regarding statelessness.106 The Peter McMullin Centre on Statelessness stated that the proposed change to the statelessness test ‘is clearly, and concerningly, a lowering of the threshold’, and allows a ‘temporal gap and predictive element to the minister’s discretionary powers’.107 Noting the complexity of determining dual citizenship, which includes considering how foreign nationality laws are implemented in practice, the Centre expressed concern that the accuracy of the Minister’s decision ‘may be less robust’, with more limited scope for judicial review than under the existing law.108 In terms of the Bill’s compatibility with international human rights obligations, the Centre stated:

We remain concerned that the proposed amendments to the Act raise critical issues concerning their compatibility with Australia's obligations under Article 8 of the 1961 Convention on the Reduction of Statelessness, as well as other international human rights law obligations.

… We briefly note that both the Act and Bill in its current form also create a real risk that even if a person is a dual national, he or she may be rendered de facto stateless, whereby a person who is nominally a citizen in a country other than Australia may not be able to exercise rights associated with citizenship in practice. They may also be unable to return to their country of citizenship, if they are, for example, a refugee due to a well-founded fear of persecution. There is therefore a real possibility that the revocation of citizenship under these amendments may result in lengthy, if not indefinite detention,

106. See, for example, Peter McMullin Centre on Statelessness, Submission to PJCIS, op. cit.; Castan Centre for Human Rights Law, Submission to PJCIS, op. cit., pp. 9-10; UNHCR, Submission to PJCIS, op. cit., pp. 4-6; IARC, Submission to PJCIS, op. cit., pp. 5-6; Science Party, Submission to PJCIS, op. cit., p. 2; Law Council, Submission to PJCIS, op. cit., pp. 17-21; Thwaites, Submission to PJCIS, op. cit., pp. 12-14. It should be noted that a number of the submissions described a version of the statelessness test proposed by the 2018 Bill, rather than the version in the 2019 Bill. Under the 2018 Bill, the Minister could only make a cessation determination if ‘satisfied that the person would not, if the Minister were to determine that the person ceases to be an Australian citizen, become a person who is not a national or citizen of any country’. In comparison, this is not a precondition for the exercise of the Minister’s powers under the 2019 Bill. The stakeholder views summarised in this digest are those which remain applicable to the test as proposed by the 2019 Bill.

107. Peter McMullin Centre on Statelessness, Submission to PJCIS, op. cit., p. 7. See also Castan Centre for Human Rights Law, Submission to PJCIS, op. cit., pp. 9-10; UNHCR, Submission to PJCIS, op. cit., pp. 4-6; IARC, Submission to PJCIS, op. cit., pp. 5-6; Science Party, Submission to PJCIS, op. cit., p. 2; Law Council, Submission to PJCIS, op. cit., pp. 17-21; Thwaites, Submission to PJCIS, op. cit., pp. 12-14.

108. Peter McMullin Centre on Statelessness, Submission to PJCIS, op. cit., pp. 9-10.

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in violation of Australia's obligations under Article 9 of the International Covenant on Civil and Political Rights. 109

Submitters raised concerns with the shift from a requirement that a person must be a citizen of another country, to a prohibition on the Minister making a determination if satisfied a person would become stateless as a result. Dr Raynor Thwaites stated:

International law requires that, at the moment of deprivation of citizenship, a person is not rendered stateless. It does not allow for the much looser requirement, contemplated by the proposed Bill, that a person not ‘become’, after some unspecified interval of time, stateless. Further, whether a person is rendered stateless is a matter of fact and law, independent of the Minister’s opinion or ‘satisfaction’.

110

The AHRC recommended the current dual citizenship test be retained as a precondition to the exercise of the Minister’s power, describing this as providing:

… stronger legislative protection against statelessness, by increasing the likelihood that a correct decision will be made as to the citizenship status of a relevant person, by virtue of the obligations on the Minister in decision-making and the intensity of available judicial review. 111

Dr Sangeetha Pillai and Professor George Williams recommended the Citizenship Act be amended to prescribe a process for determining a person is a dual citizen before citizenship cessation.112 The Law Council made a similar proposal, suggesting that a statutory determination process should follow the procedure prescribed by the UNHCR in its Handbook on the Protection of Stateless Persons.113

Number of individuals potentially impacted Reducing the minimum sentence threshold to three years, changing the statelessness test, and expanding the retrospective application of the security-related citizenship cessation provisions will expand the pool of individuals who may be considered for revocation. At the time of publication of this Digest, the Government had not made public an estimate of the number of individuals potentially affected by these changes.114

Notice of citizenship cessation Notice requirements currently apply to the existing citizenship cessation provisions under the Citizenship Act.115 Proposed section 36F departs from the existing provisions in a number of ways.

Proposed section 36F will provide that if the Minister makes a cessation determination, the Minister is required to provide written notice to the person as soon as practicable after the determination is made. However, the Minister may delay giving notice by up to six years—this is

109. Ibid., pp. 6, 9. 110. Thwaites, Submission to PJCIS, op. cit., pp. 12-14. 111. AHRC, Submission to PJCIS, op. cit., p. 31. 112. Pillai and Williams, Submission to PJCIS, op. cit., p. 5; 113. Law Council, Submission to PJCIS, op. cit., p. 19; UNHCR, Handbook on protection of stateless persons under the 1954

Convention Relating to the Status of Stateless Persons, UNHCR, Geneva, 2014. 114. In response to questions taken on notice in relation to the number of individuals potentially impacted by lowering the sentence threshold, the Department advised: ‘The number of individuals believed to be, or likely to be, nationals or citizens of

another country has not been determined. On that basis, the Department does not wish to speculate on how many people could become subject to this measure’: DoHA, Supplementary submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 16.1], n.d., pp. 10-11. 115. Citizenship Act, subsections 33AA(10)-(12), 35(5)-(7), 35A(5)-(7).

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 28

discussed further below. The Minister may also give notice of the determination to other persons as appropriate.116

Method of notice Proposed subsection 36F(2) will provide that notice must be sent by prepaid post to the address of the place of residence last known to the Department. The Minister may also send the notice electronically, but only if satisfied the person did not receive the postal notice, and if the Minister becomes aware of the person’s electronic address.117

These requirements are more prescriptive than those under the existing scheme, which does not specify any particular method by which notice must be given.118 Some stakeholders expressed concern about the adequacy of the provision, with the AHRC stating:

Service by mail to the place of residence last known to the Department may be inadequate actually to reach the person. The Department may not have current residential addresses for every Australian citizen. The Commission also notes that proposed s 36F(3) does not require service by email if the Minister is satisfied that the person did not receive the notice by mail, rather the Minister ‘may’ effect service by email again… The Bill is silent about what happens if the Minister is satisfied that the person did not receive the notice by mail but becomes aware of the current physical address for a person.

119

The AHRC recommended that proposed section 36F be amended to require that all reasonable attempts be made to ensure effective service of a notice of citizenship cessation, noting that this would be consistent with the current provisions, which require the Minister to ‘give, or make reasonable attempts to give’ notice.120 The Scrutiny of Bills Committee suggested that it may be appropriate to amend proposed subsection 36F(3) to state that the Minister must (rather than may) give additional notice where the original notice is not received and the Minister is aware of the person’s electronic address.121 In response to the Scrutiny of Bills Committee’s report, the Minister indicated that he would consider amending proposed subsection 36F(3) in accordance with the Committee’s recommendation.122

Content of the notice Proposed subsection 36F(5) will provide that the notice must:

• include a statement that the Minister has determined that the person has ceased to be an Australian citizen

• in the case of a determination under proposed subsection 36B(1), include a basic description of the relevant conduct

• in the case of a determination under proposed subsection 36D(1), specify the conviction(s) and sentence(s) to which the determination relates

• specify the date of the notice and

116. Proposed paragraph 36F(1)(b). 117. Proposed subsection 36F(3). 118. Although section 47 of the Citizenship Act provides for the various forms by which notices under the Act may be given, subsections 33AA(21), 35(16) and 35A(12) exclude the operation of this provision to citizenship cessation notices (other than

notices of the Minister’s decision to rescind a cessation notice). 119. AHRC, Submission to the PJCIS, op. cit., p. 23. 120. Ibid., p. 23; Citizenship Act, paragraphs 33AA(10)(a), 35(5)(a), 35A(5)(a). 121. Scrutiny of Bills Committee, Scrutiny digest, 7, 2019, op. cit., pp. 12-13. 122. Scrutiny of Bills Committee, Scrutiny digest, 8, 2019, op. cit., pp. 56-58.

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• set out the person’s rights of review.

The notice will be required not to contain any operationally sensitive information, or information the disclosure of which:

• could prejudice Australia’s security, defence or international relations, or the performance of the functions of a law enforcement or security agency

• could endanger a person’s safety or

• would be likely to be contrary to the public interest for any other reason.123

These are substantially similar to the existing notice provisions.124 However under the current law, where the Minister makes a cessation determination under existing section 35A, the notice must include ‘the reasons for the decision to make the determination’.125 In contrast, under proposed subsection 36F(5) there will be no requirement that reasons be provided for the Minister’s decision beyond the factual issues noted above. The notice will not be required to state, for example, the factors which contributed to the Minister’s assessment that it would be contrary to the public interest for the person to remain an Australian citizen.

The AHRC expressed concern that in the absence of further requirements for reasons, notices may be given that contain very little detail, ‘making it difficult for a person to effectively respond to any relevant adverse allegations or to make submissions about why the determination should be revoked’.126 The AHRC questioned whether the requirement that the Minister provide reasons for refusing a request for revocation (see below under ‘Minister’s revocation power’) was sufficient to address these issues, noting that this would not inform a person of the case against them in advance of making their application for revocation.127

Delaying notice The Citizenship Act currently allows the Minister to determine in writing that a notice should not be given to a person if satisfied that doing so could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations. The Minister must consider whether to revoke such a determination no later than six months after making it, and at least every six months subsequently for the five years after the determination.128 The Act is silent as to what happens at the end of these five years, but there does not appear to be any further obligation on the Minister to serve a notice.

Under the 2019 Bill, proposed section 36G will similarly provide that the Minister may determine in writing that a notice should not be given to a person if satisfied that doing so could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations. However, unlike the current scheme, this cannot be done indefinitely—if the determination has not been revoked within five years after being made then it is taken to have

123. Proposed subsection 36F(6). Operationally sensitive information takes the definition under section 4 of the Independent National Security Legislation Monitor Act 2010 (Cth): (a) information about information sources or operational activities or methods available to a law enforcement or security agency; or (b) information about particular operations that have been, are being or are proposed to be undertaken by a law enforcement or security agency, or about proceedings relating to those operations; or (c) information provided by a foreign government, or by an agency of a foreign government, where that government does not consent to the public disclosure of the information.

124. Citizenship Act, subsections 33AA(11), 35(6), 35A(6), section 35B. 125. Citizenship Act, paragraph 35B(2)(b). 126. AHRC, Submission to the PJCIS, op. cit., pp. 24-25. 127. Ibid., p. 25. 128. Citizenship Act, subsections 33AA(12), 35(7), 35A(7).

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been revoked, though the Minister can extend the determination once, for an additional year.129 During the period in which the determination is in force, the Minister must consider whether to revoke it at least every 90 days.130

This departs from the timeframes recommended by the INSLM, who suggested that the Minister should have the power to defer notice for 90 days, with a one-off option to extend this for a further 90 days. The INSLM stated: ‘six months is a sufficient maximum period to withhold notice’.131

Minister’s discretion to rescind citizenship cessation

Existing provisions The existing conduct-based cessation provisions provide that the Minister may rescind a notice of citizenship cessation and exempt a person from the effect of the relevant provision.132 If the Minister does so, the person’s citizenship is taken to never have ceased.133 This rescission power is non-compellable: there is no mechanism for a person to apply to, or for a court to order, the Minister to consider exercising the power to rescind the notice.134 Where citizenship is lost following a conviction under section 35A, the Minister can only revoke a cessation determination if the relevant conviction is overturned or quashed by a court.135

Proposed provisions Proposed section 36H will establish a new process for the revocation of citizenship cessation determinations, by which a person may apply to have the determination revoked, and will ultimately have the ability to review the Minister’s decision (or failure to make a decision) in court.

Proposed subsection 36H(2) will require an application for revocation to be made no later than the later of:

• 90 days after the date of the cessation determination notice and

• if the notice was subsequently sent to the person’s electronic address in accordance with proposed subsection 36F(3), 30 days after the electronic notice.

One consequence of this is that the timeframes in which a person may apply for revocation will run (and expire) regardless of whether the person actually received the notice served. The Scrutiny of Bills Committee suggested that this be amended to provide for 90 days to apply for revocation where notice is subsequently served electronically.136 In response, the Minister stated he would give consideration to amending proposed subsection 36H(2) to provide an affected person a period ‘greater than 30 days’ to make an application for revocation where notice has been served electronically.137

129. Proposed subsections 36G(3), (4), (5). 130. Proposed subsection 36G(2) and paragraph 36G(5)(a). 131. Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, op. cit., p. 59.

132. Citizenship Act, subsections 33AA(14) and 35(9). 133. Citizenship Act, subsections 33AA(24) and 35(19). 134. Citizenship Act, subsections 33AA(15) and 35(10). 135. Citizenship Act, subsections 35A(8), (9). 136. Scrutiny of Bills Committee, Scrutiny digest, 7, 2019, op. cit., pp. 12-13. 137. Scrutiny of Bills Committee, Scrutiny digest, 8, 2019, op. cit., pp. 56-58.

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The Law Council recommended that the provision be amended to allow for discretion to accept an application for revocation outside the legislative timeframes, noting:

… something as significant as the loss of citizenship requires some capacity for flexibility for a person to bring an application for revocation outside the prescribed time limit. It is consistent with natural justice principles that a meritorious revocation application should not be precluded due to an arbitrary time limit.

138

Once a revocation application is received, the Minister will be required to consider it and either revoke the cessation determination (effectively restoring the person’s citizenship as if it had never ceased),139 or refuse the application. The Minister must revoke the determination if satisfied that either:

• at the time the determination was made, the person was not a national or citizen of any other country or

• for a determination made under proposed subsection 36B(1), that the person did not engage in the relevant conduct.

In any other circumstances, the Minister may revoke the determination if satisfied that doing so would be in the public interest, as provided for under proposed section 36E (see above).

The Minister must provide the person with written notice of the decision, which includes (if the application is refused) the reasons for the decision and the person’s rights of review.140 Unlike the original determination, in responding to the revocation request the Minister must observe natural justice requirements.141 However, the Minister’s notice will be subject to the same national security/public interest restrictions on the disclosure of information that apply to notices of the original cessation determination.142

Proposed section 36J provides that the Minister may also revoke a cessation determination on the Minister’s own initiative, on public interest grounds. In comparison with proposed section 36H, this provision does not expressly provide that the Minister must or may revoke a determination on the basis of being satisfied that a person has been made stateless or did not engage in the conduct which gave rise to the original cessation. In such circumstances, the Minister may be able to revoke a cessation determination on the basis that it would be in the public interest; however, the Minister would not be compelled to do so.143

Automatic revocation of citizenship cessation determination In its submission to the PJCIS inquiry, the Department stated that ‘as an additional safeguard, the Bill includes a provision whereby if a court finds the person was not a national or citizen of another country at the time of the determination, their citizenship is taken never to have ceased’.144 However, there are questions as to how this would work in practice.

138. Law Council, Submission to the PJCIS, op. cit., p. 25. 139. Proposed subsection 36H(6). 140. Proposed subsection 36H(4). 141. This is specified in the Note to proposed subsection 36H(3). 142. Proposed subsection 36H(5). 143. If the Minister is considering the public interest for the purposes of deciding whether to revoke a determination, the Minister

must have regard to the matters specified in proposed subsection 36E(2) (and discussed above under ‘public interest test’). This includes, at proposed paragraph 36E(2)(i), ‘any other matters of public interest’. 144. DoHA, Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, op. cit., p. 5.

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Proposed section 36K will provide for the automatic revocation of the Minister’s citizenship cessation determination in certain circumstances. If the determination is automatically revoked, the person’s citizenship will be taken never to have been ceased.145 To trigger an automatic revocation of a conduct-based cessation, a court could find either:

• that a person was in fact rendered stateless by the Minster’s determination146 or

• that a person did not in fact engage in the conduct which the Minister was satisfied they had engaged in.147

The practical question is how a person could persuade a court to make such a finding. Judicial review by the courts examines only whether a decision complies with the limits imposed by law.148 The cessation determinations to be made by the Minister do not rely on the same two facts that would trigger revocation.

A court could determine that a person was in fact stateless at the relevant time and it would not necessarily follow that the Minister had made a relevant error. On the terms of the Bill, the Minister only has a duty not to make a determination if satisfied, on the evidence available, that a person would be made stateless. If the Minister reaches a reasonable conclusion on the evidence available, there will be no error.

A court reviewing the Minister’s determination would not need to find as a fact whether or not a person would be made stateless by the determination when examining the lawfulness of the Minister’s determination. The Minister would have a reasonable objection that exploration of such facts was not relevant to the issue before the court.149

A court which accepted that the questions of fact were relevant would effectively be reviewing the matter ‘on the merits’. That would be a substantial departure from its normal review jurisdiction and although the court might regard itself as authorised to engage in that examination by the words of proposed section 36K, it is much more likely that the court would require clear words conferring a jurisdiction to review the merits.

It is therefore, a real possibility that the automatic revocation provisions of the Bill cannot practically function, and the appearance of an additional safeguard may therefore be illusory.

The Scrutiny of Bills Committee pointed to these issues in questioning the scope of protections provided by proposed section 36K, stating:

… in a judicial review proceeding under section 75 of the Constitution, the court’s only role is to test whether the minister exceeded their jurisdiction. In these circumstances, the court may determine that the minister was lawfully ‘satisfied’ of the relevant matters without being required to determine whether the considerations of the minister were factually correct. The result is that in a section 75 judicial review proceeding, the court would not be required to determine whether the person did not engage in the conduct to which a section 36B determination relates. Neither would a court, in a

145. Proposed subsection 36K(2). 146. Proposed paragraph 36K(1)(c). 147. Proposed paragraph 36K(1)(a). 148. R Creyke, J McMillan and M Smyth, Control of Government Action, 5th edn, Lexis Nexis Butterworths, Australia, 2019, at p. 47. 149. It is possible that the Federal Court could rely on its inherent associated or accrued jurisdiction under the Judiciary Act 1903 to

examine these facts and make a finding. If a court was to find the questions of fact relevant, the onus of proof would be on the person seeking review: Creyke, McMillan and Smyth, Control of Government Action , op. cit., pp. 57-62.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 33

judicial review of a section 36B or 36D determination, necessarily, be required to make a factual finding as to whether a person is a national or citizen of a foreign country. 150 [Emphasis added]

In response to the Scrutiny of Bills Committee, the Minister reiterated that decisions would be subject to judicial review by the Federal Court and High Court, and stated that proposed section 36K does not limit the scope of the court’s powers or the usual grounds of judicial review, but rather ‘sets out additional consequences’ if the court makes certain findings.151 However, the Minister did not explain whether it would be possible for the court to make such findings in the course of judicial review proceedings. The Committee considered the Minister’s response had ‘not adequately addressed’ its concerns, and reiterated that in determining whether the Minister was lawfully ‘satisfied’ of certain matters, a court will not be required to determine whether the Minister’s findings were factually correct.152 It further reiterated that its concerns about the adequacy of judicial oversight ‘are exacerbated by the breadth of the powers granted to the minister and the exclusion of procedural fairness for initial decisions’. The Committee drew its scrutiny concerns to the attention of senators and left to the Senate as a whole the adequacy of judicial oversight of the factual determinations on which cessation determinations are to be based.153

Submissions to the PJCIS inquiry also expressed doubts about the extent to which proposed section 36K will provide a safeguard against statelessness. The Law Council noted that ‘this “safeguard” is contingent on the person being able to bring a court action in Australia against the decision of the Minister’.154

The UNHCR noted that the avenues of appeal of a finding regarding a person’s dual-citizenship status ‘would appear to shift the onus onto the individual to establish the absence of a particular nationality or citizenship’ and argued that individuals (and particularly children) may face significant difficulties clarifying their nationality status with the competent authorities in other countries.155

The Peter McMullin Centre on Statelessness also pointed to the practical difficulties faced by courts in determining a person’s foreign citizenship status:

Australia made a pledge to the United Nations in 2011 'to better identify stateless persons and assess their claims', yet there still exists a 'lack of consistency and clarity concerning the methods for ascertaining whether a person is indeed a citizen of another state'. 156

(Citations omitted)

External oversight mechanisms

Judicial review A person can apply to the High Court under section 75(v) of the Constitution, or the Federal Court under section 39B of the Judiciary Act 1903, for a writ of Mandamus or prohibition or an injunction against the Minister in relation to a decision by the Minister:

150. Scrutiny of Bills Committee, Scrutiny digest, 7, 2019, op. cit., pp. 13-14. 151. Scrutiny of Bills Committee, Scrutiny digest, 8, 2019, op. cit., pp. 58-59. 152. Ibid., pp. 59. 153. Ibid., p. 60. 154. Law Council, Submission to PJCIS, op. cit., p. 20. 155. UNHCR, Submission to PJCIS, op. cit., p. 6. 156. Peter McMullin Centre on Statelessness, Submission to PJCIS, op. cit., p. 13.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 34

• that a person has ceased to be an Australian citizen under proposed sections 36B or 36D or

• to refuse a request for revocation under proposed section 36H.157

Courts conducting judicial review are limited to considering whether a decision has been affected by an error of law—that is, whether the decision-maker has acted outside the lawful limits of their authority.158 This is distinct from merits review, in which a review body (such as the AAT) considers all evidence about the merits of a decision, and determines whether the ‘correct or preferable’ decision has been made.159

The Bill and explanatory materials are silent on whether there is also a right of review under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act), but that Act does not currently exclude decisions made under the Citizenship Act, and a right of review does not appear to be excluded in the Bill.

Absence of merits review A key issue raised by stakeholders is the absence of any provision for merits review in the 2019 Bill. A limited right to merits review was a feature of the model recommended by the INSLM. In his report, the INSLM acknowledged the views of a number of submitters about the importance of full merits review being available for citizenship deprivation decisions, but concluded:

It is not appropriate, however, to have the AAT exercising a discretion that turns on judgements about quintessentially political matters such as how the deprivation of an individual’s citizenship would affect Australia’s international relations. A Minister is better placed to make those judgments, and take responsibility for them in the Parliament, than the AAT.

At the same time, however, there seems to be no good reason why the Security Division of the AAT could not review what probably would be the key issue in many decisions by the Minister; namely, whether the person engaged in particular (terrorist like) conduct. To an extent, the Security Division can already deal with that issue in conducting a review of qualified security assessments.

160

The INSLM’s proposed model provided that following an unsuccessful application to the Minister for revocation of a citizenship determination, a person may apply to the AAT for review of the affirmation of the revocation decision. The AAT would be limited to determining ‘whether the information permitted a state of reasonable satisfaction that the person engaged in the conduct that formed the basis for the deprivation determination’, with the onus on the applicant to satisfy the AAT to the contrary.161 The INSLM also recommended a series of procedures for the AAT review, including the ability for the AAT to appoint a special advocate if certain information certified as sensitive could not be disclosed to the applicant.162

157. This right of review is by virtue of the High Court’s original jurisdiction conferred by section 75(v) of the Constitution, to hear all matters ‘in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’. Section 39B of the Judiciary Act 1903 (Cth) provides the Federal Court with the same original jurisdiction as the High Court under section 75(v). Paragraph 39B(1A)(c) of the Judiciary Act relevantly expands that jurisdiction to any matter ‘arising under any laws made by the Parliament, other than a matter in which a criminal prosecution is instituted or any other criminal matter.’

158. Administrative Review Council (ARC), Federal judicial review in Australia, Report, 50, ARC, Canberra, 2012, p. 35. 159. AGD, Australian administrative law policy guide, AGD, Canberra, 2011, p. 12. 160. Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, op. cit., p. 58.

161. Ibid., p. 60. 162. Ibid., pp. 61-62.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 35

In submissions to the PJCIS inquiry, legal and human rights bodies and academics argued that the procedural safeguards provided for by the 2019 Bill are insufficient.163 The Law Council described the absence of the availability of merits review as a ‘major deviation from the model as recommended by the INSLM’, and argued that this was exacerbated by the fact a person has no opportunity to make submissions to the Minister prior to the cessation determination. It recommended that the INSLM’s proposed merits review model be implemented.164 Rayner Thwaites noted that the Bill ‘ignores the substance and the detail of the INSLM’s recommendations’ on review and accountability, and suggests ‘this conveys an impatience with, and a misunderstanding of the importance of, limits and accountability on executive power’.165

Professor Kim Rubenstein pointed to the significance of a cessation determination—proposed section 36L will provide that a person whose citizenship ceases under proposed sections 36B and 36D can never again become an Australian citizen—to recommend: ‘a security division of the AAT should be given that power to ensure accountability around these significant and life changing decisions’.166 The AHRC similarly noted the potential of citizenship cessation to ‘gravely affect a person’s interests and basic human rights’, and suggested that although the 2019 Bill implements an internal review process (through the Minister’s power to revoke a determination), ‘further consideration by the original decision maker should not be a replacement for merits review before an independent decision-maker’.167 The AHRC recommended a broader form of merits review than that recommended by the INSLM, in which the AAT could review whether the Minister could reasonably have been satisfied:

• the relevant conduct demonstrates the person repudiated their allegiance to Australia and

• it would be contrary to the public interest for the person to remain an Australian citizen.168

Reporting requirement Item 11 will repeal and substitute subsection 51B(1) of the Citizenship Act, to provide that as soon as practicable after each reporting period (that is, every six months),169 the Minister must table a report in each House of Parliament that sets out:

• the number of citizenship cessation notices given by the Minister under proposed paragraph 36F(1)(a) during the period

• for each notice that was given, a brief statement of the matters that were the basis for the determination and

• the number of notices given by the Minister under proposed subsection 36H(4), revoking a citizenship cessation notice, during the period.

163. See, for example, Law Council, Submission to PJCIS, op. cit., pp. 11-12; Rubenstein, Submission to PJCIS, op. cit., p. 5; AHRC, Submission to PJCIS, op. cit., pp. 25-28; Castan Centre for Human Rights Law, Submission to PJCIS, op. cit., pp. 7-8; Thwaites, Submission to PJCIS, op. cit., pp. 6-7.

164. Law Council, Submission to PJCIS, op. cit., pp. 11-12. 165. Thwaites, Submission to PJCIS, op. cit., pp. 2-3. 166. Rubenstein, Submission to PJCIS, op. cit., p. 5. Proposed section 36L is in substantively the same form as existing section 36A. 167. AHRC, Submission to PJCIS, op. cit., p. 26. 168. AHRC, Submission to PJCIS, op. cit., p. 27. 169. Citizenship Act, subsection 51B(3) (definition of reporting period).

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 36

INSLM and PJCIS review and oversight of provisions will continue Item 14 will amend the definition of ‘counter-terrorism and national security legislation’ in the Independent National Security Legislation Monitor Act 2010 to replace the existing reference to sections 33AA, 35 and 35A of the Citizenship Act with a reference to the proposed new provisions.

Item 15 will amend the Intelligence Services Act 2001 to replace the current requirement for the PJCIS to complete a review of sections 33AA, 35 and 35A of the Citizenship Act by 1 December 2019 with a requirement to complete a review of the proposed provisions by 30 June 2021.

As the PJCIS does not have the power to initiate own-motion inquiries, it would appear that it may not have the power to complete and report on its current review of sections 33AA, 35 and 35A unless it does so before the proposed amendments to the Intelligence Services Act commence.

Retrospective application

Conviction-based cessation The PJCIS was asked to consider as part of its inquiry into the 2015 Bill whether then proposed section 35A should apply retrospectively to convictions obtained before the proposed commencement of 2015 Bill.170 The PJCIS noted that retrospective application was opposed by most of the participants in that inquiry ‘on the basis that it would be contrary to the rule of law’.171 While acknowledging those concerns, the PJCIS determined that it was appropriate that the Minister be able to consider citizenship revocation based on convictions obtained no more than ten years before the proposed commencement of 2015 Bill where sentences of at least ten years had been imposed.172 The PJCIS’s recommendation was implemented in the 2015 Act.

The 2019 Bill will considerably expand the retrospective application of the provisions for relevant convictions. In particular, it will provide that proposed section 36D applies to relevant convictions occurring on or after 29 May 2003, where a sentence of at least three years imprisonment was imposed (29 May 2003 was the date when the terrorism offences captured by proposed section 36D commenced173).174 The effect of that expansion will be:

• provisions for citizenship cessation on the basis of a relevant conviction will now also apply to convictions obtained between 29 May 2003 and 11 December 2005 for the first time

• the sentence threshold that currently applies for convictions obtained between 12 December 2005 and 11 December 2015 will be retrospectively lowered from ten to three years and

• the sentence threshold that currently applies for convictions obtained from 12 December 2015 onwards will be retrospectively lowered from six to three years.

The Statement of Compatibility provides the following justification for the proposed retrospective application of both the conduct and conviction-based provisions:

Past terrorist-related conduct is widely recognised as repugnant and a contradiction of the values that define our society. It is appropriate to take past conduct into consideration in order to ensure the safety

170. PJCIS, Advisory report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, op. cit., p. 2. 171. Ibid., p. 127. See further pp. 123-126. 172. Ibid., p. 128 (Recommendation 10). 173. Criminal Code Amendment (Terrorism) Act 2003. 174. Item 19 of Schedule 1.

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 37

and security of Australia and its people, and to ensure the community of Australian citizens is limited to those who continue to retain an allegiance to Australia. The discretionary nature of the cessation provisions and the public interest criteria the Minister may regard in making a determination prevent arbitrary application.

175

The Explanatory Memorandum also states that while this change will capture more convictions:

… conviction for a specified offence is simply the starting point for the Minister to make a citizenship cessation determination, that being a determination that can be made only after having regard to a number of factors. This is appropriate when considering a determination of this gravity. 176

The Government’s argument is essentially that because a sentence imposed for a terrorism conviction is only one of several criteria that must be met for a person’s citizenship to cease, it is appropriate to retrospectively capture additional past convictions. However, that has been the case since the provisions were enacted in 2015—conviction and sentence has never been the sole criteria for cessation under the conviction-based provisions.

The Scrutiny of Bills Committee and several stakeholders raised concerns about the retrospective application of the proposed new sentencing threshold and the lack of accompanying justification.177 Some stakeholders noted that the proposed retrospectivity is inconsistent with the PJCIS’s previous recommendation and its underlying rationale. Several considered that the Government had not put forward sufficient justification for the significant expansions proposed.178 The Law Council noted that the proposed expansions could mean that a person convicted up to 16 years ago and whose sentence ended several years ago could now be subject to ‘a citizenship determination that did not even exist at the time the person committed the original offence’.179

Conduct-based cessation Neither section 33AA, nor the expansion of section 35 of the Citizenship Act to include fighting for or being in the service of a terrorist organisation, were applied retrospectively by the 2015 Act. The Government did not propose that those changes apply retrospectively, and the PJCIS was not asked to consider the issue in its inquiry into the 2015 Bill.

The 2019 Bill will apply the updated conduct-based cessation provisions in proposed section 36B to conduct specified in paragraphs 36B(5)(a)-(h) (conduct currently covered by section 33AA) that was engaged in on or after 29 May 2003.180

The Government’s justification is that the retrospective provisions are appropriate because:

• the provisions concern conduct viewed as repugnant

• citizenship revocation on the basis of conduct will now be discretionary instead of self-executing and

175. Statement of Compatibility (Attachment A to Explanatory Memorandum), p. 10. 176. Explanatory Memorandum, p. 23. 177. Scrutiny of Bills Committee, Scrutiny digest, 7, 2019, op. cit., pp. 14-15; Pillai and Williams, Submission to PJCIS, op. cit., p. 5; Law Council, Submission to PJCIS, op. cit., pp. 28-31; AHRC, Submission to PJCIS, op. cit., pp. 34-37; Thwaites, Submission to

PJCIS, op. cit., pp. 10-12. After considering the Minister’s response to its concerns, the Scrutiny of Bills Committee remained of the view that the Government had not provided adequate justification for this amendment: Scrutiny of Bills Committee, Scrutiny digest, 8, 2019, op. cit., pp. 60-61. 178. Law Council, Submission to PJCIS, op. cit., pp. 28-31; AHRC, Submission to PJCIS, op. cit., pp. 34-37; Thwaites, Submission to PJCIS, op. cit., pp. 10-12. 179. Law Council, Submission to PJCIS, op. cit., p. 30. 180. Sub-item 18(1) of Schedule 1.

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• the Minister is required to consider certain matters before making an individual determination.181

Citizenship cessation on the basis of fighting for, or being in the service of, a terrorist organisation will continue to be possible only for conduct engaged in on or after 12 December 2015.182

No limit will be placed on the retrospective application of citizenship cessation on the basis of serving in the armed forces of a country at war with Australia.183 A determination may be made on the basis of such conduct engaged in before or after commencement.184

As with the conviction-based provisions, the Scrutiny of Bills Committee and several stakeholders raised concerns about the retrospective application of the proposed new conduct-based provisions.185

Cessations in force before commencement Item 17 will provide that where a person’s citizenship ceased under the existing operation of law provisions (sections 33AA and 35) prior to commencement, the Minister will be taken to have made a citizenship cessation determination under proposed subsection 36B(1) in relation to the person.186 This will effectively deem the loss of citizenship to have occurred as a result of a decision by the Minister, although the Minister did not actually make such a decision. Sub-item 17(3) will provide that where the Minister has given, or made reasonable attempts to give, a cessation notice to the person:

• the notice is taken to have been given under proposed section 36F at the time the Minister gave (or first reasonably attempted to give) the notice prior to commencement and

• the person cannot apply for revocation of the determination under proposed section 36H.

Statelessness test The 2019 Bill’s proposed changes to the statelessness test will be retrospectively applied in the same way. That is, the new, lower threshold will be applied not only to conduct or convictions that occur after the amendments are enacted, but also to conduct or convictions dating back to May 2003 (and even earlier where the relevant conduct is serving in the armed forces of a country at war with Australia).

Constitutional validity At the time the 2015 Bill was introduced and debated, concerns were raised by legal academics about its constitutional validity. These included concerns that parts of the Bill may lack the support of a constitutional head of power, potentially falling outside the scope of the ‘aliens’ power under section 51(xix) of the Constitution, and may constitute a vesting of judicial power in the executive,

181. Explanatory Memorandum, pp. 11-12; Statement of Compatibility (Attachment A to Explanatory Memorandum), pp. 2-3, 10. 182. Sub-item 18(2) of Schedule 1. 183. P de Veau (General Counsel and First Assistant Secretary, Legal Division, DoHA), Evidence to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, (proof), 18 October 2019, p. 58.

184. Sub-item 18(3) of Schedule 1. 185. Scrutiny of Bills Committee, Scrutiny digest, 7, 2019, op. cit., pp. 14-15; LCA, Submission to PJCIS, op. cit., pp. 28-31; AHRC, Submission to PJCIS, op. cit., pp. 34-37. After considering the Minister’s response to its concerns, the Scrutiny of Bills Committee remained of the view that the Government had not provided adequate justification for this amendment: Scrutiny

of Bills Committee, Scrutiny digest, 8, 2019, op. cit., pp. 60-61. 186. This only applies where either the Minister has given (or made reasonable attempts to give) the person notice of the cessation, or a determination delaying the giving of notice is in force: item 16 (paragraph (c) of definition of designated non-

citizen), sub-items 17(7)-(9).

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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 39

in breach of the separation of powers.187 To some extent these concerns were addressed in Government amendments to the Bill, introduced in response to recommendations of the PJCIS.188 Nonetheless, it has been suggested that potential difficulties could remain.189

In their minority report to the PJCIS inquiry into the 2018 Bill, Labor members of the Committee expressed concern about the constitutionality of the proposed amendments, and provided a legal opinion by Peter Hanks QC which suggested there would be ‘substantial risk’ that they would be found unconstitutional.190

The INSLM considered constitutional issues as part of his review, concluding that the existing citizenship loss provisions are supported by a combination of constitutional heads of power.191 The INSLM also disagreed with arguments submitted by legal academics that the current provisions infringe constitutional limitations, stating that he did not consider there to be ‘any significant constitutional defects’ in the current legislation or in relation to his recommendations.192

To date, there has been no constitutional challenge to the validity of the amendments made by the 2015 Act. Some of the constitutional issues raised regarding the existing legislation have been raised once again in relation to the current Bill—these are discussed in the ‘Key issues and provisions’ section of this Digest.

Although, as discussed above under ‘Constitutional validity’, the INSLM’s report concluded that there were no significant constitutional defects in either the current citizenship deprivation laws or under the model proposed by the INSLM, some legal bodies and academics have raised questions about the constitutional validity of aspects of the 2019 Bill. Particular concerns were raised about proposed section 36B, with stakeholders suggesting that allowing the Minister to make findings of fact about conduct which constitutes an offence under the Criminal Code, may amount to an unacceptable interference with judicial power.193 The Immigration Advice and Rights Centre argued:

Such a finding, which in our view should be reserved for a court, could be made on the basis of information that is unreliable, untested and where the Australian citizen has not had an opportunity to be heard or respond to the allegations labelled against them. The finding by the Minister about conduct may be lawful so long as it is reasonable and open on the material that is available. This is a most unacceptable basis for a citizen to be excluded from their membership of the Australian community.

There is further concern about whether proposed section 36B amounts to an unacceptable interference with judicial power. In Djalic v MIMIA, the Full Court of the Federal Court of Australia stated:

187. PJCIS, Advisory report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, op. cit., chapter 3. 188. Government amendments, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, House of Representatives, Sheet EH190, 3 February 2016. 189. S Pillai, ‘Citizenship-stripping reforms open to challenge in spite of safeguards’, Law Society Journal, 19, February 2016,

pp. 74-75. 190. Labor members, Minority report, op. cit., p. 2. The advice of Peter Hanks QC is set out at Attachment A of the minority report. 191. These are: the aliens power (section 51(xix)), external affairs power (section 51(xxix)), defence power (section 51(vi)) and the

‘executive power of the Commonwealth…read with the express incidental power in s 51’: Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, op. cit., pp. xii-xiii; 15-16. 192. Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, op. cit., pp. 16-20. 193. IARC, Submission to PJCIS, op. cit., pp. 2-3; Pillai and Williams, Submission to PJCIS, op. cit., p. 5; Law Council, Submission to PJCIS, op. cit., pp. 31-33.

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“It is a fundamental principle of the Australian Constitution, flowing from Chapter III that the adjudication and punishment of criminal guilt for offences against a law of the Commonwealth is exclusively within the province of courts exercising the judicial power of the Commonwealth.” 194

The Law Council also queried whether there is a constitutional head of power to support the Commonwealth’s power to enact citizenship deprivation laws; while acknowledging the INSLM’s conclusions on these issues, it nonetheless noted:

… it will ultimately be a matter for the High Court to determine just how significant any constitutional ‘defects’ may be and it is critical therefore that the Committee continues to assure itself of the constitutional validity of the Bill prior to any recommendation regarding the Bill’s possible enactment. 195

Concluding comments The 2019 Bill will implement the INSLM’s key recommendation of replacing the automatic operation of the existing conduct-based cessation provisions with a model based on ministerial determination that takes account of whether an individual’s conduct represents a repudiation of his or her allegiance to Australia and whether citizenship revocation is in the public interest in the particular circumstances of each case.

It will also introduce a mechanism by which a person can request that the Minister revoke a citizenship cessation determination. However, legal and human rights bodies and academics argued that the procedural safeguards provided for by the 2019 Bill are insufficient. A key concern for stakeholders and the Scrutiny of Bills Committee was that, unlike the model recommended by the INSLM, the Bill will not provide for any merits review of citizenship cessation decisions.

Additionally, while the Bill provides for automatic revocation of a cessation decision if a court makes certain factual findings (that a person does not have another nationality, or has not engaged in the relevant conduct), there are questions as to how this will operate in practice.

The 2019 Bill will also reduce the sentence threshold for consideration of citizenship revocation based on conviction for certain offences, change the statelessness test, and significantly increase the extent to which the provisions apply retrospectively. These further changes, none of which were recommended by the INSLM and some of which conflict with recommendations of the PJCIS that were reflected in the 2015 Act, have also attracted criticism from stakeholders and raised concerns for the Scrutiny of Bills Committee.

194. IARC, Submission to PJCIS, op. cit., pp. 2-3. 195. Law Council, Submission to PJCIS, op. cit., pp. 31-32.

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