Improved citizenship bill still invites criticism and High Court challenges

The Turnbull government on Tuesday released a list of proposed amendments to a bill that would strip dual nationals of their Australian citizenship if they “act in a manner contrary to their allegiance”.

The revised bill adopts all recommendations made by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in its report. But will it stand up if challenged in the High Court?

Streamlined focus

The original bill, first introduced in June by the Abbott government, was resoundingly criticised for its poor drafting and unclear operation.

It was also pointed out that the original bill imposed automatic citizenship loss on people who posed no real security risk, and that it likely fell foul of the Constitution.

The PJCIS recommendations were aimed at “making the bill’s scope more limited and procedures more transparent”. The revised bill, in many ways, achieves this. It improves upon the original proposal in a number of ways.

The revised bill streamlines the way in which being convicted of an offence triggers citizenship loss. Under the original proposal, this list of offences was bafflingly wide, with no obvious connection to allegiance. Conviction triggered automatic citizenship loss, even where no sentence was imposed on the offender.

Under the revised bill, the offences triggering citizenship loss relate to terrorism, treason, treachery, sabotage, espionage and foreign incursions and recruitment. Citizenship loss is no longer automatic upon conviction, but is a matter for ministerial discretion.

To revoke citizenship, the minister must be satisfied that this would be in the public interest and that the conviction demonstrates a repudiation of allegiance to Australia. The revocation power can be exercised only where a person has been sentenced to at least six years’ imprisonment.

The revised bill retains an automatic citizenship revocation, purported to be “self-executing”. However, this mechanism’s scope is reduced. It applies only where a person has committed conduct outside Australia, or has left Australia before being brought to trial.

The revisions clarify the intent required before automatic citizenship loss can occur and require the minister to consider whether to exempt a person from citizenship loss. The bill also makes it clear that where a court subsequently finds that a person did not commit the conduct that triggered citizenship loss, they will be taken to have never lost their citizenship.

The revisions include a number of safeguards that were excluded from the original proposal. For instance, the bill no longer applies to children under the age of 14. For children under 18, the child’s best interests must be given primary consideration.

The minister is now required to take reasonable steps to notify a person who has lost their citizenship of this fact, as well as of the appeal avenues available to them. Safeguards expressly excluded in the original proposal – such as natural justice and Section 39 of the ASIO Act – are also included, along with a mechanism providing for oversight by the PJCIS.

Despite these improvements, a number of problems with the bill remain.

Retrospective operation

The original bill was prospective in operation. Only dual citizens who engaged in conduct or were convicted of an offence after its commencement were candidates for citizenship loss.

The revised bill changes this. Although citizenship loss following conviction is now a matter for ministerial discretion rather than occurring automatically, a person can now lose their citizenship from a conviction recorded prior to the legislation’s commencement.

In order to lose citizenship on this ground, a person must have been convicted no more than ten years before the legislation’s commencement and have been sentenced to at least ten years’ imprisonment.

The bill does not allow citizenship revocation itself to come into effect retrospectively. Revocation determinations may merely be made on the basis of a conviction recorded prior to the bill’s commencement. However, this nonetheless conflicts with the fundamental rule of law principle that no person should be subjected to a punishment that was not in the law at the time they committed their act.

Constitutional problems

A number of potential constitutional problems with the bill also remain. Some suggest the retrospectivity provisions may face High Court challenge.

Additionally, there may be constitutional problems with the “self-executing” citizenship-loss provision. As in the original bill, the conduct giving rise to automatic citizenship loss is defined by reference to terrorism and foreign incursions and recruitment offences in the Commonwealth Criminal Code. However, the automatic citizenship revocation envisaged would take place without a person being convicted of any of these offences.

As many experts noted in submissions to the PJCIS inquiry, this may infringe the separation of judicial power in the Constitution.

The revised bill attempts to address this by imposing its own requirements for the intent a person must possess when engaging in conduct triggering automatic citizenship loss. These intent requirements operate in place of the fault elements in the Criminal Code offences. This means that the threshold for citizenship loss is different from the threshold for criminal conviction.

Whether this will suffice to cure the constitutional problems with the bill remains to be seen.

Legislation premature and unnecessary?

Finally, it is not clear that the citizenship revocation proposed in the bill is really necessary to achieve the government’s national security objectives.

The Commonwealth’s passport suspension and cancellation powers already enable it to prevent Australians abroad from returning home when they are considered to pose a security risk. On home soil, pre-emptive control orders and high criminal penalties circumvent risk both before and after conviction.

For these reasons, some urged the Turnbull government to dump the citizenship legislation. They argued that the bill exacerbated tensions with Australia’s Islamic community for minimal practical gain.

Muslim advocacy groups have criticised the government for advancing the revised bill without considering the findings of national consultation on the value of Australian citizenship. The consultation involved the participaton of many community groups, including Islamic organisations. The report is currently being finalised.

Immigration Minister Peter Dutton has said he hopes the legislation will pass “as quickly as possible”. Labor has signalled bipartisan support for the proposals, but has demanded more time to consider the amendments. It accused the Coalition of attempting to rush the legislation through without proper briefing.

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.