Australian Citizenship Act Changes: Government to Alter Dual Nationality Laws

Wednesday 3 June 2015 @ 11.43 a.m. | Crime | Immigration

On 26 May 2015, the Prime Minister and the Minister for Immigration and Border Protection announced that the Federal government intends to amend the Australian Citizenship Act 2007 (Cth) (the AC Act) so that dual nationals who engage in terrorism can lose their Australian citizenship as a result of such engagement.

This is the latest in a raft of security and anti-terrorism measures to be introduced by the current Federal government. It follows on measures already introduced to prevent access to certain parts of the middle east designated as war zones and strengthened anti-terrorism laws. As the Department of Immigration and Border Protection's web page says:

"The Government is serious about countering home-grown terrorism. We are investing $1.3 billion in new counter-terrorism capabilities, and we have systematically updated our national security legislation to give our law enforcement and security agencies the powers they need to tackle the threat of home-grown terrorism."

What is proposed with respect to Dual Nationality Laws?

As yet no government legislation has been introduced but it is understood from government media releases, that the Minister for Immigration and Border Protection will be able to exercise the new powers to be incorporated into the AC Act in the "national interest" where a ". . . dual citizen betrays our country by participating in serious terrorist-related activities".

Regarding the ambit of the Immigration Ministers powers under the proposed changes, it is proposed in the PM's media release that the new powers will apply to dual citizens:

". . . who fight with or support groups such as ISIL, or Daesh, as well as so-called ‘lone wolves’, whether in Australia or on foreign soil".

It should be noted that the government argues that the changes will be consistent with Australia's international legal obligations so as not to leave a person stateless (see, the 1961 Convention on the Reduction of Statelessness and theConvention relating to the Status of Refugees, which Australia acceded to on 13 December 1973). To emphasise this, the PM points out in his media release that the proposed changes to the AC Act will also contain safeguards, including a process of judicial review, to balance the new powers being given to the Minister.

In the Federal government's view, the proposed new powers are ". . . a necessary and appropriate response to the terrorist threat" and are being promoted by the government as measures which also modernise Australian laws ". . . bring[ing] them closer to those of the UK, Canada, France, the United States and other countries".

Background

The basics of dual citizenship are that it is possible to hold citizenship in two or more countries if the law of those countries allows that position (commonly known as dual, or multiple citizenship). Prior to 4 April 2002, Australian citizens who became citizens of another country automatically lost their Australian citizenship.

It is possible to become a dual citizen automatically, or after being granted citizenship of another country; for example, an Australian citizen may automatically gain citizenship of another country through marriage, while a permanent resident of Australia may become a dual citizen by becoming an Australian citizen.

It has, since 1949, been the position that Australians having dual citizenship who fight for a country at war with Australia have forfeited their citizenship. The government is now extending the concept to cover Australians who join a hostile army and those engaged in terrorism - which although it sounds similar casts a much wider net.

"There should be no difference in how we treat Australians who join a hostile army and those engaged in terrorism – both are betraying our country and don’t deserve to be citizens of Australia."

Also Announced - A National Consultation

Part of the the Prime Ministers media release of 26 May 2015 also related to the Federal government's intention to launch a national consultation to:

". . . improve understanding of the privileges and responsibilities of Australian citizenship".

To lead the proposed national consultation, the government has appointed the Parliamentary Secretary for Social Services, Senator Concetta Fierravanti-Wells, and Philip Ruddock MP. Senator Fierravanti-Wells is to undertake the role as the newly appointed Parliamentary Secretary to the Attorney-General and Mr Ruddock undertakes the task as the Prime Minister's Special Envoy for Citizenship and Community Engagement.

One of the benefits pointed to by the Prime Minister of the national consultation are that it:

". . . will seek the public’s views on further possible measures, including the suspension of certain privileges of citizenship for those involved in serious terrorism."

In the broader sense the value of The Consultation is argued to be that it will provide . . .

"A national conversation about citizenship [which] will enable us to consider whether the rights and responsibilities of citizenship are well understood and how we can better promote these, including among young Australians. . . . Our success as a nation is underpinned by a commitment by all Australians to a law abiding, peaceful and open society. In an environment in which terrorism is reaching out to our community, we need to ensure this is well understood."

Reactions and Comment

Interestingly, the Federal government, while pushing the measures with open support, appears also to be conflicted internally over the extent or severity of the changes required. The ABC reports as recently as Monday (1 June 2015) that, on the one hand ". . .40 backbenchers have signed a petition urging the Prime Minister to go further. . ." Indeed asking him to make sure the laws applied to ". . . not only dual nationals but those eligible for the citizenship of another country". The petition reportedly stating that:

"We [the 40 backbenchers] believe that there is a significant risk that limiting the revocation powers to those who currently hold dual citizenship will fail to capture many already serving sentences in Australia, . . "

The petition also interestingly seemed to indicate a possibility of allowing others to declare allegiance by ". . . renouncing another citizenship and remain[ing] an Australian citizen."

On the other hand, the Fairfax media has reported several senior ministers as having raised concerns about the dual citizenship proposals. The senior ministers are said to include the deputy Liberal leader Julie Bishop, the Communications Minister Malcolm Turnbull, the Agriculture Minister Barnaby Joyce, the Attorney-General George Brandis, the Education Minister Christopher Pyne and the Defence Minister Kevin Andrews. Concerns reported as being expressed by these senior ministers relate to civil liberties issues such as the extent of powers being given to the Minister for Immigration and Border Protection, the nature and definition of some of the terms being used and how they will be applied in a legal context, for example, the term ‘lone wolves’, the concept that the law can apply ". . . whether in Australia or on foreign soil", the concern being that, if a law is broken in Australia should it not be the Australian law and criminal system applying , and generally concerns about Australia's UN Convention obligations.

Finally, a third view emerged from the Minister for Social Services Scott Morrison relating to the idea of suspending the residency rights of Australians involved in terrorism. Mr Morrison is reported as telling Sydney radio station 2GB:

"Someone can continue to be an Australian citizen but you can remove their ability to enter and remain in Australia, . . . In the same way if someone goes to prison they don't get to vote, they're still a citizen, but there is an entitlement of citizenship which is suspended for a period of time."

The notion here being that suspending some rights would allow the government to stop alleged terrorists returning to Australia without rendering them stateless.

The opposition has reflected grave concerns with the measures proposed with Shadow Attorney General Mark Dreyfus, quoted as saying:

“The bedrock should be that nobody should be made stateless by an act of the Australian government. Australian signed up to this in 1973 – that we will not make people stateless, . . .”

It should be noted that the Federal government, has been indicating its intention to follow Britain’s citizenship-stripping powers as far back as January 2014, however, as the Guardian reports ". . . there is still no draft legislation in the public domain".

It will be interesting to see how far the actual law does go and the extent to which the government will be able to remain united on the measure once a draft law or bill is released. Even more interesting will be the opposition's ability to stay bipartisan on measures relating to terrorism at it has done in recent months with measures introduced by the government.

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