Committee recommendations improve citizenship bill, but fundamental flaws remain

On Friday, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) reported on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The bill provides for dual citizens to lose their citizenship in two new ways: by engaging in conduct deemed to amount to a renunciation of citizenship, or by being convicted of a prescribed offence.

In August, the PJCIS heard evidence from several legal experts, who raised critical concerns about the bill’s likely constitutional validity, practical workability, fairness and transparency. The PJCIS has responded by suggesting major recommendations to amend the bill, which it says are:

… aimed at making the bill’s scope more limited and procedures more transparent.

Conduct-based citizenship loss

The bill, as drafted, contains two provisions under which a dual citizen could lose their Australian citizenship through their conduct.

The first provision, Section 33AA, prescribes a list of offences deemed to be inconsistent with allegiance to Australia. It provides that a dual citizen who committed any of these offences would be taken to have automatically renounced their Australian citizenship. The bill’s original draft defines this list by reference to terrorism offences in the Commonwealth Criminal Code, but does not require a person to be convicted of any offence in order to lose their citizenship under Section 33AA.

The rationale for Section 33AA was that it is difficult to obtain sufficient judicially admissible evidence to convict a person of the Criminal Code offences, particularly where relevant conduct is committed overseas.

There are several problems with the original draft of Section 33AA.

First, the conduct that would trigger automatic citizenship loss without conviction overlaps with the bill’s conviction-based grounds for citizenship loss. This means that a person could lose their citizenship under Section 33AA without trial, and subsequently be tried and acquitted of an offence arising out of the same conduct that triggered citizenship loss. The bill does not clarify whether the person’s citizenship would be reinstated in that circumstance.

Second, defining conduct triggering citizenship loss by reference to offences in the Criminal Code without requiring conviction raises questions about whether Section 33AA infringes the constitutional separation of powers.

Finally, the bill does not explain who would make the decision that a person had engaged in said conduct, and what standard of proof is required.

The PJCIS recommendations address the first two of these issues. To minimise overlap with the conviction-based grounds for citizenship loss, the committee recommended that Section 33AA operate only where proscribed conduct has been committed overseas, or where a citizen has committed conduct in Australia but has left the country before being brought to trial.

This enables citizenship loss without trial in the circumstances in which it is likely to be most difficult to administer a successful prosecution, but requires conviction prior to citizenship loss in all other circumstances.

The PJCIS also recommended that the conduct triggering citizenship loss should not be directly defined by reference to Criminal Code offences. Instead, it recommended that the bill state that the proscribed conduct is “intended to be considered in light of the meaning of” these offences, and that it is “not intended to be restricted to the physical elements”.

This helps ensure that a person who physically engages in proscribed conduct, but who has a valid defence under criminal law, does not automatically lose their citizenship under Section 33AA.

These two factors also reduce (but do not eliminate) the bill’s prospects of being found unconstitutional on the grounds that it infringes the separation of powers.

However, the recommendations do not resolve the uncertainties about who determines when a person has engaged in proscribed conduct under Section 33AA, and the standard of proof for such determination. Contrarily, amending the bill to provide that conduct triggering citizenship loss will be “considered in light of the meaning of [offences in the Criminal Code]” would make the meaning of proscribed conduct even more uncertain than in the bill’s original draft.

The second conduct-based provision, Section 35, provides that dual citizens would lose their Australian citizenship if they fight for or are in the service of a declared terrorist organisation outside Australian territory.

A critical concern regarding this provision was that some declared terrorist organisations – such as the Kurdistan Workers’ Party, which actively opposes Islamic State – pose no threat to Australia or its citizens.

Thus, while acting in the service of such organisations may be criminal, it does not demonstrate a lack of allegiance to Australia. Another concern was that automatic citizenship loss might capture persons who provide a service under duress, or without knowing that the recipient of the service is a declared terrorist organisation.

The PJCIS recommendations mitigate these concerns. The committee proposed that declared terrorist organisations for the purposes of Section 35 be determined by reference to a list of criteria, requiring a connection with allegiance to Australia.

The PJCIS also recommended that the bill be amended to clarify that a person who provides neutral humanitarian assistance or who acts under duress is not “in the service of” a declared terrorist organisation.

Conviction-based citizenship loss

Section 35A provides for citizenship loss where a dual citizen is convicted of prescribed offences deemed to demonstrate a lack of allegiance to Australia.

The original list of offences is broad, including offences that had no necessary suggestion of disloyalty to Australia – such as damaging Commonwealth property – and requires no minimum sentence before citizenship loss can occur.

Under the bill’s initial draft, a person convicted of any of these prescribed offences would automatically lose their citizenship. The PJCIS recommended that this be amended, so that conviction instead opens up a ministerial discretion to revoke citizenship.

This discretion would arise only when a convicted person is sentenced to at least six years’ imprisonment. It would only allow the minister to revoke citizenship where this would be in the public interest.

This recommendation narrows the scope of Section 35A considerably. The PJCIS further recommended narrowing the list of prescribed offences to exclude offences with a maximum penalty of less than ten years’ imprisonment, as well as the offence of damaging Commonwealth property.

However, the PJCIS also recommended extending Section 35A to allow a person to lose citizenship on account of a conviction that occurred prior to the legislation’s commencement, provided they were sentenced to at least ten years’ imprisonment. It recommended this despite noting that most inquiry participants opposed the idea of Section 35A applying retrospectively, on the basis that this would be contrary to the rule of law.

The rule of law requires that when a person commits conduct, they can only be punished in accordance with the law that applied at the time. A more onerous punishment cannot later be imposed. However, this is not a constitutional requirement in Australia.

What now for the bill?

The PJCIS recommendations address several fundamental problems with the bill as drafted. The recommended tightening of Sections 33AA, 35 and 35A would ensure that some of the most inappropriate candidates for citizenship loss under the bill – teenagers who graffiti Commonwealth buildings, Red Cross aid workers or people who puncture Commonwealth car tyres – would no longer be vulnerable.

Additionally, the committee recommended the inclusion of a number of pivotal safeguards that were excluded from the bill’s original draft. For instance, for ASIO advice to be acted on, the committee recommended that – as is typical – a full security assessment should be required.

Where a person loses their citizenship, the committee recommended that, as far as possible, they should be informed of this and of their potential avenues for judicial review. The committee also recommended that additional safeguards should apply with respect to the citizenship of children.

These recommendations rectify fundamental defects in the bill’s original draft. However, important concerns about its constitutionality, clarity and adherence to the rule of law remain.

Sangeetha Pillai 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.