Bill relies on legal fiction of self-executing law to revoke citizenship

The Joint Parliamentary Committee on Intelligence and Security is set to report this week on the government’s controversial bill to strip dual nationals involved in terrorist activities of their Australian citizenship.

The government has said that it has legal advice that the bill would stand up to a constitutional challenge in the High Court. Expert submissions to the inquiry, however, have raised doubts as to whether it would. The government is under no obligation to release its advice, but it should do so to reassure critics that the bill’s legal framework is as sound as possible.

The bill, in its current form, is seriously flawed. Multiple concerns have been raised about its inattention to human rights, its differential impact upon dual and sole nationals, and its potential application to persons who commit relatively minor crimes (like spraying graffiti on government buildings).

There are also serious constitutional concerns. I appeared before the inquiry in early August and explained these concerns.

The bill’s flaws

The most striking constitutional flaw in the bill is its likely breach of the separation of powers. A core principle of the separation of powers is that only the courts can exercise judicial power. The determination of criminal guilt is a judicial matter.

Before the bill was drafted, the government contemplated giving the immigration minister the unilateral power to strip citizenship from suspected terrorists. A leaked report of cabinet discussions revealed that constitutional objections were raised that this scheme would invalidly confer judicial power on the minister.

The government appeared to take notice of its ministers. Under the bill, as drafted, the minister would not exercise this power. But, at the same time, the courts would not be involved in determining whether terrorist conduct had occurred. The bill therefore seems to repeat the government’s earlier mistake.

The section of the bill that causes the greatest concern is that which provides for citizenship automatically to cease when an individual undertakes certain conduct. This includes:

• engaging in international terrorist activities using explosive or lethal devices;

• engaging in a terrorist act;

• providing training or assistance for a terrorist act;

• directing the activities of a terrorist organisation;

• recruiting for a terrorist organisation;

• financing terrorism or terrorists or a terrorist; and

• engaging in foreign incursions and recruitment.

No mechanism for determining whether the conduct has occurred is indicated in the bill. The section is intended to be self-executing – that is, to apply of its own accord. This is implausible. Self-executing laws are a legal fiction, as the Federal Court has already intimated. The law cannot apply itself. Someone or some authority must make a determination.

The conduct listed in the section is defined by reference to specific provisions in the Commonwealth Criminal Code that identify criminal offences. This is where the problem lies. The conduct triggering loss of citizenship is treated as if it can be separated from the associated crime.

But, if the conduct is criminal – as terrorism unquestionably is – it has to be established as such. How will it be established? The relevant minister may receive advice about an individual’s conduct, but even advice from a highly skilled intelligence agency cannot stand in the place of judicial determination.

The section also requires the minister to give notice of a citizenship revocation to whomever the minister considers appropriate (not necessarily the affected person), if he or she “becomes aware of conduct” whereby someone has ceased to be a citizen. Again, how is the conduct to be established?

Determination of guilt requires a criminal trial, including the presumption of innocence, the production of evidence, the establishment of the relevant mental element, and the application of defences and exceptions. The Criminal Code sets out the particular requirements for each offence, as well as the applicable penalties. The bill appears to sidestep these requirements.

The code’s general definition of a terrorist act makes it clear that intention is essential. A terrorist act is something done or threatened with the intention of advancing a political, religious or ideological cause, and with the intention to coerce or intimidate the Commonwealth or the public. The bill does not refer to that definition.

Citizenship, it seems, may be lost by persons who did not have the relevant intention, who do not even know what they have done, or who have a legitimate defence for their conduct.

Challenges ahead

In his second reading speech, Immigration Minister Peter Dutton said that judicial review of citizenship revocation would be available and did not need to be mentioned in the bill, since the Constitution gives relevant jurisdiction to the High Court.

But if there is judicial review, there must be a determination to review. And if there is a determination amounting to guilt, it cannot be made by the executive.

There are multiple other uncertainties in this section, as in the whole bill. One cannot know for sure how the High Court would rule on the constitutional questions, but in the likely event of a challenge if the bill becomes law, these will be central issues. If the law proves constitutionally unsound, the government will have to return to the drawing board. Further uncertainties will follow.

What we can be sure of is that the message that terrorism is exceptional and egregious will be compromised if the current bill becomes law. It will be compromised, too, if the government goes ahead with a law that is not constitutionally watertight.

Helen Irving does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.