Stripping Citizenship as an Anti-Terror Tool

Thursday 26 February 2015 @ 1.37 p.m. | Crime | Legal Research | Immigration

In his recent National Security Statement (23 February 2015) the Prime Minister, in speaking to the broader issues of foreign fighters, terrorism and national security, has indicated that the government intends to introduce significant changes to the Australian Citizenship Act 2007 (No 20 of 2007) (CTH) (the Citizenship Act) namely, the prospect of removal of citizenship and its privileges as a sanction or deterrent for would be foreign fighters and radicalised citizens who become terrorists.

"Especially now that we face a home-grown threat from people who do reject our values. . . Today, I am announcing that the Government will look at new measures to strengthen immigration laws, as well as new options for dealing with Australian citizens who are involved in terrorism..."

The Prime Minister's speech then goes on to outline the proposed citizenship changes. The first change being, amending the Citizenship Act to widen the circumstances in which Australians with dual citizenship may lose their Australian citizenship:

"The Government will develop amendments to the Australian Citizenship Act so that we can revoke or suspend Australian citizenship in the case of dual nationals . . . It has long been the case that people who fight against Australia forfeit their citizenship . . . Australians who take up arms with terrorist groups, especially while Australian military personnel are engaged in Afghanistan and Iraq, have sided against their country and should be treated accordingly."

The second change proposed applies to all Australian citizens seeking to enlarge the circumstances in which privileges associated with citizenship can be lost:

"For Australian nationals, we are examining suspending some of the privileges of citizenship for individuals involved in terrorism. . . Those could include restricting the ability to leave or return to Australia, and access to consular services overseas, as well as access to welfare payments."

The Dual Citizenship Removal Proposal

The enlarging of the circumstances in which Australian Citizenship could be stripped from a person who has dual citizenship would not be totally new in terms of existing Australian law. Already the Citizenship Act provides for Australian citizens who hold dual citizenship to automatically lose their Australian citizenship if they serve in the armed forces of a country at war with Australia (see Part Division 3, s 35), and this, it seems to be implied by the Prime Minister's speech, would be enlarged to apply to dual citizens fighting for the armed forces of or with “terrorist groups”.

The measure is also not new in terms of the laws of citizenship already applying in other countries. France, Canada and most recently the UK all have laws that remove citizenship from dual citizens if they are convicted of "terrorism offences". In these jurisdictions, while the nature of these laws has been much discussed, the actual numbers caught by them has been low, for example, Audrey Macklin (University of Toronto) in a paper "The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?" says:

"The UK declines to publicly disclose the exact number, identities or circumstances of those deprived of UK citizenship, but investigatory journalists estimate that at least 53 Britons have lost citizenship since 2002, over half on national security grounds. In 2013, the Home Secretary deprived 20 UK nationals of citizenship, more than all other years since 2002 combined."

A difficulty perceived with the expansion of the application of section 35 of the Citizenship Act is that it is easier to put a definition around what is a "foreign state" but nowhere near as easy to do so when it comes to a "terrorist group". As The Conversation points out:

"Unlike the definition of a foreign state, the definition of a terrorist group involves the exercise of executive discretion. . . The list of 20 proscribed 'terrorist organisations' in Australia includes groups, such as the Kurdistan Workers Party and the Palestinian Islamic Jihad, that are accepted as posing no direct threat to Australia. It is by no means clear that fighting for a 'terrorist group' in this category is equivalent to serving in the armed forces of a country at war with Australia."

How such matters are described in any laws that do eventually get passed will be important and their legal validity may well depend on the way distinctions are made.

Removal of Citizenship Privileges from all Citizens

Measures like this have also been enacted in Canada and the UK, but in those countries, those laws have a general legal guarantee that citizens may "enter, remain in and leave the country" and as The Conversation points out:

"These guarantees can affect the way in which laws that remove rights from citizens are interpreted by courts."

This is especially so in Australia where citizens have few express or guaranteed rights protected.

Are the Changes Going to Work? - What do they Add?

The Prime Ministers speech stated:

"It’s worth recalling the citizenship pledge that all of us have been encouraged to recite:

I pledge my commitment to Australia and its people; whose democratic beliefs I share; whose rights and liberties I respect; and whose laws I will uphold and obey.

This has to mean something."

In fact, all of us do not take the pledge referred to and one wonders how influential the whole notion of citizenship actually is, particularly for someone with two passports and a fall back position. Surprisingly, a quick "straw poll" of people born into citizenship seems to show little or no awareness of the pledge the PM refers to, although its sentiments no doubt all would agree to. This does again cause some to wonder at the deterrent value of citizenship removal over all.

Also to be considered is the point of practicality. What happens in the situation where citizenship is stripped from an Australian Citizen and the country for which the person has a passport refuses to take them or agrees to their deportation - would this be creating a new class of refugee?

Overall, as the Conversation points out:

"The proposals announced on Monday overlap considerably with existing legislation."

Seemingly, rather than adding to the "terrorism toolkit", some might argue we are at risk of cluttering it and denying its efficacy.

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