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When the government proposes legislative measures to remove citizenship from Australians, it requires the Parliament to wrestle with some fundamental legal principles on which our democracy is founded.
The Federal Government has introduced three new provisions, which would strip dual nationals or citizens who engage in terrorist activity of their Australian citizenship. These provisions would be automatically triggered when a person either engages in prescribed terrorist-related conduct, serves or fights for a declared terrorist organisation, or if they are convicted of a specified terrorism offence as prescribed in the Criminal Code.
The Law Council of Australia has serious concerns with this legislation, and these concerns have been noted in a detailed submission recently provided to the Parliamentary Joint Committee on Intelligence and Security.
The Law Council recognises the legitimate objective of addressing terrorism and providing consequences for citizens who are no longer loyal to Australia and its people. However, the Law Council is not satisfied that the removal of citizenship is a necessary, reasonable or proportionate response to potential terrorist threats. Where the Parliament introduces laws which are not necessary, reasonable or proportionate, the rule of law is undermined.
As presently drafted, the legislation could apply to conduct which may be unrelated to a lack of allegiance to Australia. And because it is necessarily limited to only a certain class of individuals (dual nationals/citizens), it raises a number of complications not dealt with by the Citizenship Act. For example, what happens if the person is Australian born but on birth automatically takes dual nationality. Why would such a person lose their Australian nationality but not someone who engaged in identical acts but was not a dual national?
The legislation is silent on protections for children or preventing indefinite detention and effective statelessness.
Furthermore, the procedures for losing citizenship and subsequent administrative action do not provide sufficient safeguards to accord with the rule of law, the presumption of innocence, the right to a fair trial, and the right of appeal.
The Law Council is also urging Parliamentarians to consider amending the proposed legislation to afford better protections to individuals who it is claimed have supported terrorism. Ideally, the legislation should provide that loss of citizenship would only flow after a conviction. At the very least, it should follow a full and robust intelligence assessment by the Australian Security Intelligence Organisation which can be subject to judicial review by an independent, impartial and competent court or tribunal. Any decision by the Minister, particularly in the absence of a criminal conviction for an offence, should be subject to review.
As it stands, provisions in the Bill are simply too poorly defined.
When the legislation refers to fighting for or in the service of a terrorist organisation, it casts the net so broadly that it could conceivably catch people who the government cannot be intending to capture, such as aid workers or volunteer medical staff, particularly if they happen to act outside the strict confines of the organisation they work for, while in a conflict zone.
The Law Council will continue to argue that the legislation is a flawed response to the problem of terrorism, and at the very least, seek amendments that protect the right of individuals to enjoy security of citizenship of Australia.
Read our full submission to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015.
Read our response to the 'Australian citizenship: your right, your responsibility' discussion paper.