- The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) creates three new ways in which dual citizens can be stripped of their Australian citizenship. This is the most significant expansion of the grounds for citizenship loss since citizenship legislation was introduced in Australia.
- Two of the grounds are purportedly ‘self-executing’, and provide for automatic loss of citizenship where a dual citizen engages in particular conduct. The third ground consists of a ministerial power to revoke citizenship.
- The Act creates one of the broadest citizenship stripping regimes in the world and is likely to face constitutional challenge.
On 3 December 2015, the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) (‘Allegiance to Australia Act’) passed through both houses of Federal Parliament. The Act provides for Australian citizens with dual citizenship to lose their Australian citizenship in certain circumstances. It represents the most significant expansion of the grounds for citizenship loss in Australia since Australian citizenship legislation first entered into force in 1949.
The model for citizenship loss enacted in the Allegiance to Australia Act was arrived at after several months of deliberation. Expanding the grounds for citizenship loss was first proposed by the Abbott government in February 2015, in the wake of similar legislation in other countries, including the UK and Canada. At this early stage, it was envisaged that the Minister for Immigration would have a broad power to revoke a person’s citizenship on national security grounds. However, experts pointed out that this would likely infringe the constitutional separation of powers.
A Bill was first introduced into Parliament in June 2015. This Bill contained the broadest citizenship stripping provisions to have been proposed in any common law nation to date. To avoid the constitutional problems that a broad ministerial power to revoke citizenship would carry, the Bill took the novel approach of creating three purportedly ‘self-executing’ mechanisms via which dual citizens could automatically lose their Australian citizenship.
First, it enabled a person to lose their citizenship automatically upon engagement in certain terrorism related conduct. This conduct was defined by reference to offences in the Criminal Code Act 1995 (Cth) (‘Criminal Code’), but conviction of an offence was not required for a person to lose their citizenship. Nor was an executive determination that the conduct had been engaged in legally required. The Bill did not outline any process for determining when a person had committed conduct that would trigger citizenship loss.
The second mechanism expanded upon a longstanding provision in s 35 of the Australian Citizenship Act (‘ACA’), which provides that a person with dual citizenship automatically loses their Australian citizenship if they serve in the armed forces of a country at war with Australia. The Bill extended this ground to include fighting for or being in the service of an organisation declared to be a terrorist organisation under Australian law. The explanatory memorandum to the Bill made it clear that being in the ‘service’ of such an organisation would include the provision of medical support or similar assistance. Finally, the Bill provided that a dual citizen would automatically lose their Australian citizenship upon conviction of any one of a number of prescribed offences, irrespective of the penalty imposed. The prescribed offences included terrorism related crimes, but also crimes with no necessary connection to allegiance or national security, such as the offence of damaging Commonwealth property. Moreover, overlap with the conduct based ground for automatic citizenship loss meant that it was often practically unnecessary for a person to be convicted of a terrorism related offence before they could lose their citizenship on account of it.
The Bill was referred to an inquiry conducted by the Parliamentary Joint Committee on Intelligence and Security (PJCIS). Submissions to the inquiry resoundingly criticised the legislation. Legal experts noted it was overly broad, unclear, constitutionally problematic, and lacking appropriate safeguards. For instance, it applied to children of all ages, excluded natural justice and procedural safeguards under the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’), and did not require a person to be informed when they had lost citizenship. In September 2015, the PJCIS recommended the Bill be passed, subject to 27 major changes aimed at ‘making [its] scope more limited and procedures more transparent’. These recommendations were adopted before the Allegiance to Australia Act was passed.