Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 [2019] AUPJCHR 91 (5 December 2019)

1.2 The committee seeks a response from the relevant minister with respect to the following bills and instruments.

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Purpose	This bill seeks to amend the Australian Citizenship Act 2007 to provide that, at the discretion of the Minister for Home Affairs, a person who is a national or citizen of a country other than Australia ceases to be an Australian citizen if the person acts inconsistently with their allegiance to Australia by engaging in terrorist offences. It also seeks to make consequential amendments to the Independent National Security Legislation Monitor Act 2010 and the Intelligence Services Act 2001.
Portfolio	Home Affairs
Introduced	House of Representatives, 19 September 2019
Rights	Obligations of non-refoulement; rights to an effective remedy, fair trial and fair hearing, freedom of movement, liberty, protection of the family; and rights of children
Status	Seeking additional information

1.3 The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (the bill) seeks to amend Division 3 of Part 2 of the Australian Citizenship Act 2007 (the Australian Citizenship Act) to provide the Minister for Home Affairs (the minister) with the discretionary power to determine that a person ceases to be an Australian citizen in certain circumstances. The minister would have this discretionary power where, by doing any of the following, the minister is satisfied a person has demonstrated that they have 'repudiated their allegiance to Australia':

by engaging in specified terrorism-related conduct (proposed section 36B),^[2] or

by being convicted since 29 May 2003^[3] for a specified terrorism offence, for which a sentence of imprisonment of at least three years (or periods totalling at least three years) has been handed down (proposed section 36D).^[4]

1.4 Under the bill the minister would not be permitted to make a citizenship cessation determination if the minister is ‘satisfied’ that the person would, if the minister were to make the determination, ‘become a person who is not a national or citizen of any country'.^[5] This is in contrast to the existing provisions of the Australian Citizenship Act which states that the determination can only be made if, as a matter of objective fact, 'the person is a national or citizen of a country other than Australia’ at the time when the minister makes the determination.^[6]

1.5 In all instances, the minister must be satisfied that it would be contrary to the 'public interest' for the person to remain an Australian citizen.^[7] Proposed section 36E sets out a range of matters to which the minister must have regard in considering the public interest in this context.^[8]

1.6 Under the proposed amendments, the rules of natural justice would not apply in relation to making a decision or exercising a power in relation to a citizenship cessation determination.^[9] The bill does not provide for merits review of the determinations, leaving only judicial review available. The power to make a determination under proposed section 36B would apply to persons aged 14 or over, while under proposed section 36D it would apply to persons convicted of specified offences, which would apply to anyone over the age of criminal responsibility (10 years of age).^[10]

1.7 The effect of a citizenship cessation determination is that person cannot return to Australia, or if they are in Australia at the time of the determination, will no longer have a permanent right to reside in Australia. Such persons would acquire an ex-citizen visa as a matter of law, which may be cancelled on character grounds. If the ex-citizen visa were cancelled, the person would become an unlawful non-citizen and may be placed in immigration detention and subject to removal. As such, the bill engages and limits a number of human rights. The key rights engaged and limited are set out below.^[11]

1.8 The right to freedom of movement^[12] includes a right to leave a country, and to enter, remain in, or return to one's 'own country'. 'Own country' is a concept which encompasses not only a country where a person has citizenship but also one where a person has strong ties, such as long standing residence, close personal and family ties and intention to remain, as well as the absence of such ties elsewhere.^[13]

1.9 For those whose citizenship ceases when they are outside Australia, they will lose the entitlement to return to Australia. If they are in a country in which they do not hold nationality, the right to leave that other country may be restricted in the absence of any valid travel documents. For those who are present in Australia at the time their citizenship ceases, the statement of compatibility notes that these individuals will be entitled to an ex-citizen visa.^[14] While this visa may allow the person to remain in Australia, in practice, it may operate to restrict any travel from Australia. This is because a person who leaves Australia on an ex-citizen visa loses any entitlement to return to Australia.^[15] Further, an ex-citizen visa may be subject to cancellation on character grounds,^[16] and in that case the person would become an unlawful non-citizen and be subject to removal.^[17] As such, this would limit a person's right to remain in their 'own country' if the person has strong ties to Australia. The statement of compatibility recognises that the bill limits the right to freedom of movement, but argues the limitations on these rights are not arbitrary given the requirements set out in the bill (see further below under the discussion of proportionality).

1.10 Expanding the circumstances in which the minister may determine that a person's citizenship ceases engages and may limit the right to liberty. As set out above, a person in Australia whose citizenship ceases will automatically be afforded an ex-citizen visa allowing them to reside in Australia. However, an ex-citizen visa may be subject to cancellation on character grounds,^[18] including mandatory cancellation in the case of a person with a 'substantial criminal record' (which includes a sentence of imprisonment of 12 months or more).^[19] Additionally, where a person has served a period of less than 12 months a visa may still be cancelled on discretionary grounds. Such persons are also prohibited from applying for most other visas.^[20] A person whose ex-citizen visa is cancelled would become an unlawful

non-citizen and may be subject to mandatory immigration detention pending removal.^[21]

1.11 The right to liberty prohibits the arbitrary and unlawful deprivation of liberty.^[22] The notion of 'arbitrariness' includes elements of inappropriateness, injustice and lack of predictability. Accordingly, any detention must not only be lawful, it must also be reasonable, necessary and proportionate in all of the circumstances. The right to liberty applies to all forms of deprivations of liberty, including immigration detention. The UN Human Rights Committee has held that Australia’s system of mandatory immigration detention is incompatible with the right to liberty.^[23] The statement of compatibility does not acknowledge that the bill engages the right to liberty.

1.12 As the power to make a determination under proposed section 36B would apply to persons aged 14 or over, and proposed section 36D could apply to those aged 10 or over, the measures also engage and limit the rights of the child.^[24] International human rights law and Australian criminal law recognise that children have different levels of emotional, mental and intellectual maturity than adults, and so are less culpable for their actions.^[25] In this context, cessation of a child's citizenship on the basis of their conduct raises questions as to whether this is in accordance with accepted understandings of the capacity and culpability of children under international human rights law and adequately recognises the vulnerabilities of children. International human rights law recognises that a child accused or convicted of a crime should be treated in a manner which takes into account the desirability of promoting his or her reintegration into society.^[26] In this respect, the UN Committee on the Rights of the Child has stated that 'a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable' and has encouraged states parties 'to continue to increase it to a higher age level.'^[27]

1.13 Children have special rights under human rights law taking into account their particular vulnerabilities. The Convention on the Rights of the Child requires state parties to ensure that, in all actions concerning children, the best interests of the child is a primary consideration.^[28] Children also have the right to preserve their identity, including their nationality,^[29] without unlawful interference.

1.14 A person whose Australian citizenship ceases may be prevented from returning to, or residing in, Australia, or travelling to another country, and thereby be prevented from reuniting with close family members. Children have a right to not be separated from their parents against their will, except where competent authorities determine that such separation is necessary for the best interests of the child,^[30] and are to be protected from arbitrary interference with their family.^[31] In addition, the enjoyment of a range of rights is tied to citizenship under Australian law, for example, such that the removal of citizenship may have a negative effect on the best interests of any affected children.

1.15 The separation of a person from their family may also engage and limit the right to protection of the family.^[32] The family is recognised as the natural and fundamental group unit of society and, as such, is entitled to protection. This right protects family members from being involuntarily and unreasonably separated from one another. Laws and measures which prevent family members from being together, impose long periods of separation, or forcibly remove children from their parents, will therefore engage this right.^[33]

1.16 Human rights which are not absolute may be subject to permissible limitations providing the measures limiting these rights meet certain 'limitation criteria'; namely, that they are prescribed by law, pursue a legitimate objective, are rationally connected to (that is, effective to achieve) that objective and are a proportionate means of achieving that objective. Set out below is advice as to whether the limitations on the rights to freedom of movement and liberty and the rights of the child and the protection of the family meet these limitation criteria.

1.17 The requirement that interferences with rights must be prescribed by law includes the condition that laws must satisfy the 'quality of law' test. This means that any measures which interfere with human rights must be sufficiently certain and accessible, such that people understand the legal consequences of their actions or the circumstances under which authorities may restrict the exercise of their rights.^[34]

1.18 The minister's power to make a determination ceasing a person's citizenship requires the minister to be satisfied that the conduct engaged in 'demonstrates that the person has repudiated their allegiance to Australia'.^[35] In contrast, the Australian Citizenship Act currently provides that citizenship will cease if a person engages in specified conduct 'with the intention of advancing a political, religious or ideological cause' and with the intention of coercing or influencing by intimidation the government or the public.^[36] It is unclear on the face of the bill what acts would demonstrate that a person has repudiated their allegiance to Australia.

1.19 The explanatory memorandum states that 'allegiance' is a legal concept as referred to by the High Court^[37] and the ordinary meaning of allegiance is the dictionary definition, being 'the obligation of a subject or citizen to their sovereign or government; duty owed to a sovereign state'.^[38] However, the High Court judgments referred to in the explanatory memorandum clarify that an alien is a person who does not owe allegiance to Australia.^[39] They do not set out the legal test for whether someone's conduct could be said to have repudiated this allegiance or what exactly this allegiance is. It is not clear, therefore, on the basis of the information in the explanatory materials that the question of whether a person has demonstrated that they have 'repudiated their allegiance to Australia' is sufficiently certain and accessible for people to understand the legal consequences of their actions, such that it would satisfy the 'quality of law' test.

1.20 In addition, under proposed paragraph 36B(5)(j) the minister may make a determination that a person ceases to be a citizen if the person engaged in the conduct of serving in the armed forces of ‘a country at war with Australia.' The explanatory memorandum explains that, unlike other Commonwealth offences, this criterion could be fulfilled even if there has been no 'Proclamation in relation to a country at war with Australia or...Declaration of war'.^[40] Without a proclamation or declaration of war it is unclear if how persons serving in the armed forces of another country would know that the country is formally at war with Australia. This also raises the question of whether this measure is sufficiently certain and accessible for people to understand the legal consequences of their actions.

1.21 Any limitation on the rights to freedom of movement and liberty and the rights of the child and the protection of the family must demonstrate that the measure limiting the right aims to achieve a legitimate objective. The statement of compatibility states that the purpose of this bill remains the same as when the original terrorism-related citizenship loss provisions were enacted in 2015: recognition that Australian citizenship is a common bond which may, through certain conduct incompatible with the shared values of the Australian community, be severed.^[41] It states that persons convicted of serious terrorism offences pose a threat to Australia and its interests, and that engagement in terrorist conduct would be regarded by Australians as a contradiction of the values that define our society.^[42] The explanatory memorandum further states that, while the existing terrorism-related citizenship cessation powers have helped to protect Australians, approximately 80 individuals of 'counter-terrorism interest' are believed to be still in Syria and Iraq, 'some of whom may seek to return to Australia' (although it does not explain how many of those 80 are dual-nationals and so likely to be the subject of this bill).^[43] It also argues that the measures ‘enable optimal decision-making outcomes for Australia’s national security’ and that the bill builds on, adapts and modernises the citizenship cessation provisions so they are part of a suite of measures that can be applied to manage an Australian of counter-terrorism interest.^[44]

1.22 In general terms, national security, public order and the rights and freedoms of others have been recognised as being capable of constituting a legitimate objective for the purposes of international human rights law. It would have been useful if the explanatory materials had provided more evidence or data about the scope of this issue as a pressing and substantial concern. In particular, no evidence was given as to why citizenship should cease after a person is sentenced to three or more years imprisonment (as opposed to the current six years) and what gaps (if any) the amendments seek to capture. All the explanatory materials state is that a sentence of this nature ‘reflects the seriousness of a criminal conviction for one of the [listed] terrorism related offences’.^[45]

1.23 It is noted that the cessation of citizenship can only occur if the minister is satisfied the person is entitled to nationality of another country. While it is welcome that it is intended that this would not apply to those not eligible for citizenship of another country (as to do otherwise would render the person stateless), this raises questions as to whether these measures are strictly necessary. If the threat posed to Australia by citizens who do not possess dual-nationality can be managed without depriving them of citizenship, it is unclear why similar measures could not adequately address the threat posed by dual-citizens. If national security is not adequately established as a legitimate objective, it is noted that the statement of compatibility would appear to rely on the desire to limit citizenship to those ‘who embrace and uphold Australian values’.^[46] It is not clear that this seeks to address a pressing and substantial concern such that it is a legitimate objective when considering the significant limitations on rights posed by these measures.

1.24 The statement of compatibility posits that the proposed measures are rationally connected with the pursuit of the stated objectives. It states that cessation of a person's formal membership of the Australian community will reduce the possibility of that person engaging in acts that harm the community, and argues that it may also have a deterrent effect by making people aware that their citizenship may be in jeopardy.^[47] It also notes that these measures will operate in the context of other anti-terrorism measures, including 'the control order scheme, prosecution of terrorism offences, temporary exclusion orders, the post-sentence preventative detention, and de-radicalisation programs'.^[48] The statement of compatibility does not explain how the existing measures, introduced in 2015, have been effective to protect the Australian community nor does it provide evidence to demonstrate that it has had a deterrent effect, other than to state that the provisions have helped to do so.^[49] It is not, therefore, possible to assess whether expanding powers to remove citizenship to a broader group of persons will be effective to achieve (that is, rationally connected to) the stated objectives.

1.25 Questions also remain as to whether the minister’s discretionary power to determine cessation of citizenship is proportionate to the stated objectives. The statement of compatibility appears to contain two main justifications as to how any limitations on rights are proportionate:

in considering whether to cease a person’s citizenship, the bill requires that the minister be satisfied it is not in the public interest for the person to remain an Australian citizen, having regard to factors set out in proposed section 36E. The statement argues that balancing such factors, via this discretionary process, ensures limitations on rights is not arbitrary;^[50] and

the bill contains safeguards to ensure that after a citizenship determination has been made, it can be revoked, including if a court finds that the person never engaged in the specified conduct; was not actually a national or citizen of another country; the relevant sentence has been overturned or reduced; or the declaration that a group is a terrorist organisation is disallowed by Parliament.^[51]

1.27 As set out above, the proposed measures provide the minister with a broad discretionary power to revoke a person's citizenship on the basis of a wide range of criteria, some elements of which are open to interpretation. International human rights law jurisprudence states that laws conferring discretion or rule-making powers on the executive must indicate with sufficient clarity the scope of any such power or discretion conferred on competent authorities and the manner of its exercise. This is because there is a risk that, without sufficient safeguards, broad powers may be exercised in such a way as to impose unjustifiable limits on human rights.

1.28 As set out above at paragraphs [1.18] to [1.19], there is uncertainty surrounding what it means to have repudiated one’s ‘allegiance’ to Australia. In addition, proposed section 36B would empower the minister to determine that a person’s citizenship has ceased on the basis of the minister’s ‘satisfaction’ that a person has engaged in specified conduct. It is noted that proposed subsection 36B(6) essentially provides that the specified conduct that the minister must be satisfied of, has the same meaning as offences set out in the Criminal Code, but without including any requirement of intent. This essentially means that the minister may determine that a person’s citizenship will cease on the basis that he or she is satisfied that the person has committed an offence, without any protections of a criminal trial and without it having been established by a court of law that the person has committed the offence.

1.29 In addition, the breadth of the offences specified in subsection 36D(5), which would empower the minister to cease citizenship following conviction of the listed offences are noted. This includes offences that relate to preparation, assistance or engagement and cover conduct that may be reckless rather than intentional. Some of the offences themselves appear to raise human rights concerns. For example, the offence of entering or remaining in a declared area appears likely to be incompatible with the right to a fair trial and the presumption of innocence, the prohibition against arbitrary detention, the right to freedom of movement and the right to equality and non-discrimination.

1.30 The requirement that the minister consider individual circumstances before ceasing a person’s citizenship assists with the proportionality of the measure. Proposed section 36E provides that the minister, in determining whether it is in the public interest to make a determination to cease citizenship, must have regard to the severity of the relevant conduct; the degree of threat posed by the person; the age of the person; if the person is under 18, the best interests of the child as a primary consideration; whether the person is likely to be prosecuted for the relevant conduct; the person’s connection to the other country of which they are (or may be) a national; Australia’s international relations; and any other matters of public interest. However, this list does not explicitly require the minister to consider the impact of the citizenship loss on the right to protection of the family and the right to freedom of movement. The statement of compatibility states that as cancellation decisions are discretionary ‘the impact on family members would be considered’ (presumably under the catch-all of ‘other matters of public interest’).^[52] However, while the minister may consider the impact on family members or the right to freedom of movement in determining whether to cease a person's citizenship, there remains no express requirement for them to do so.

1.31 In addition, while proposed section 36E requires the minister to consider, if the person is under 18, the best interests of the child, it specifically states that this is to be ‘as a primary consideration’. As the statement of compatibility explains, this means that where the minister is determining whether to cease a child’s citizenship, it ‘must consider the protection of the Australian community alongside the best interests of the child'.^[53] It goes on to state that the minister must be satisfied that cessation of citizenship is in the public interest and ‘in considering the public interest, the Minister must have regard to numerous matters, including the best interests of the child.^[54]

the expression ‘primary consideration’ [in article 3(1) of the Convention on the Rights of the Child] means that the child's best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child.^[55]

1.33 It follows that it may be inconsistent with Australia’s obligations to treat other considerations as of equal weight to the obligation to consider the best interests of the child.

1.34 Furthermore, there does not appear to be any requirement for the minister to consider the best interests of any children who might be directly affected by a citizenship cessation determination relating to, for example, one or both of their parents. In this regard, the statement of compatibility provides that '[c]essation of a parent’s Australian citizenship under these provisions does not result in the cessation of the child’s Australian citizenship'.^[56] However, this does not provide a complete answer to the question of what impact the cessation of a parent's Australian citizenship will have on the rights of affected children.

1.35 The availability of review rights is also relevant to assessing the proportionality of these measures. The minister’s discretionary power to cease citizenship includes express provisions stating that the rules of natural justice do not apply in relation to making a decision or exercising a power under most provisions in the bill.^[57] There is no independent merits review available of the minister’s decision – only a right to apply to the same person who made the decision (the minister) and ask that the decision be reconsidered.^[58] The statement of compatibility notes that individuals will have the right to access judicial review of the determination, and to seek declaratory relief.^[59] However, the availability of judicial review may not represent a sufficient safeguard in this context. Judicial review is only available on a number of restricted grounds and represents a limited form of review in that it only allows a court to consider whether the decision was lawful (that is, within the power of the relevant decision maker). Noting the broad discretionary power provided to the minister (and the exclusion of the rules of natural justice), this would likely be difficult to establish. It is also noted that the bill provides that the minister must give a written notice of a determination to cease citizenship, but that notice need not contain certain information (e.g. if it is nationally sensitive or would be contrary to the public interest).^[60] This broad power to restrict disclosure of the basis on which the determination was made would likely make review of the decision more difficult.

1.36 Further, the changes proposed by the bill as to whether a person is a dual citizen raises questions as to the proportionality of the measure. As noted above, currently it is a condition precedent for making a determination that a person is, as a matter of fact, a national or citizen of a country other than Australia. By proposing that the minister only need be 'satisfied' of this status, this may create a greater risk that a person is not actually a citizen of another country such that they may be unable to obtain travel documents and may be rendered stateless. This is because while the minister may be 'satisfied' about a person's citizenship, they may still be mistaken about this as a factual matter. This is particularly the case noting that questions of dual nationality can be highly complex.

1.37 While judicial review of the minister’s decision is available, this is limited by the nature of the powers granted to the minister. In these circumstances, the court may determine that the minister was lawfully ‘satisfied’ of the relevant matters without being required to determine whether the considerations of the minister were factually correct, and the court would not necessarily be required to make a factual finding as to whether a person is a national or citizen of a foreign country. As such, it is not clear that proposed section 36K, which automatically revokes the minister’s determination in certain circumstances (including where a court is satisfied a person did not engage in the relevant conduct or a person was not a dual national at the time the determination was made), is a particularly strong safeguard (as is argued by the statement of compatibility). It applies only after citizenship has already ceased, and only on the application of the affected person who would bear the burden of establishing, on the balance of probabilities, they did not engage in the relevant conduct or were not a national or citizen of another country. In addition, proposed subsection 36K(2) provides that even if the minister’s decision was later revoked, the validity of anything done in reliance on the determination before that event would not be affected. This calls into question its effectiveness as a safeguard.

1.38 Questions also remain as to whether ceasing a person’s citizenship, with all the serious consequences for human rights that flow from such a decision, is the least rights restrictive way to achieve the stated objectives. For example, it is unclear why less rights restrictive approaches such as regular law enforcement techniques or criminal justice processes (e.g. arrest, charge and prosecution including for preparatory acts) are insufficient to protect the community. Further, the ability to impose conditions on an individual under a control order in a range of circumstances is already a coercive tool aimed at addressing such objectives. In addition, as noted above at paragraph [1.23], as such measures are not applied to persons who do not possess, or are not entitled to, dual nationality, and as other measures are presumably applied to such persons as may be necessary to protect the Australian community, it is not clear that these measures are the least rights restrictive approach.

1.39 In addition, the retrospective application of provisions under the bill to conduct occurring over 16 years ago raises further concerns that the measures may not be the least rights restrictive approach. Under the current law, only convictions from 12 December 2015 which resulted in a sentence of six years or more, or convictions in the ten years prior this date resulting in a sentence of at least 10 years imprisonment, are relevant to loss of citizenship. However, the bill would allow a ministerial determination to be made in relation to conduct that is considered to have occurred from 29 May 2003 onwards, as well as to convictions from that date (that result in a sentence of three years imprisonment or more).

1.40 The statement of compatibility argues that it is appropriate to take into account past conduct in order to 'ensure the safety and security of Australia and its people' and to ensure that citizenship is limited to those who continue to 'retain an allegiance to Australia'.^[61] It argues that the listed offences in proposed section 36D narrows the retrospective application of the provision because it 'only applies to terrorism offences which target behaviour that is especially harmful to community safety and amounts to a repudiation of allegiance to Australia'.^[62] However, it offers no explanation as to why the retrospectivity period has been extended beyond the periods that exist under the current provisions, why 29 May 2003 was chosen and what gaps (if any) the amendments seek to capture.

1.41 The bill would provide the minister with a broad discretion to determine that a person ceases to be an Australian citizen where that person has access to dual nationality and has 'repudiated their allegiance to Australia'. The effect of a citizenship cessation determination is that a person cannot return to Australia, or if they are in Australia at the time of the determination, will have their citizenship rights removed and be likely to be an unlawful non-citizen who is liable to mandatory immigration detention and removal from Australia.

1.42 On this basis, these measures engage and limit a number of human rights, including the rights to freedom of movement and liberty, and the rights of the child and to protection of the family. Further information is required in order to assess whether these are permissible limitations under international human rights law. In particular, it would be useful to know:

whether the criteria that a person has 'repudiated their allegiance to Australia', or has served in the armed forces of a country 'at war with Australia' is sufficiently certain and accessible for people to understand the legal consequences of their actions;

whether evidence establishes that the measures seek to achieve a legitimate objective, in particular, advice as to the necessity of the measures noting that any threat posed by non-dual national Australians is not proposed to be managed by depriving them of citizenship;

how the measures are rationally connected to (that is effective to achieve) the stated objectives, in particular any evidence that demonstrates that the 2015 measures have been effective in protecting the community and acting as a deterrent;

whether the measures are proportionate to achieve the stated objectives, in particular:

why proposed section 36E does not include an express requirement for the minister to consider a person’s connection to Australia, including any impact on family members, before making a citizenship cessation determination;

when consideration is given to making a determination in relation to a person under 18, why the best interests of the chid is to be considered alongside a range of other factors and what 'as a primary consideration' means in this context;

why there is no independent merits review of the minister’s discretionary powers; and

why the discretionary powers apply to conduct or convictions up to 16 years ago; why this date was chosen, and why the period in the existing provisions is insufficient.

1.43 The committee notes the legal advice on the bill and makes the following comments as set out below.

1.44 With respect to the rights of the child and protection of the family, we note that section 36E of the bill requires the minister to have regard to the 'age of the person' and 'the best interests of the child as a primary consideration'.

1.45 With respect to the requirement that interferences with rights must be prescribed by law, the committee notes that the minister must be satisfied that the person engaged in specified terrorism conduct or has been convicted of a specified terrorism offence and the conduct engaged in demonstrates that the person has repudiated their allegiance to Australia and the minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

1.46 In paragraph [1.18], we note concerns about certainty as whether a person has demonstrated that they have ‘repudiated their allegiance to Australia.’ The committee notes, however, that the minister’s discretion is limited by reason that ceasing a person's citizenship to persons is limited to persons who engaged in specified conduct or who have been convicted of a specified offence.

1.47 It is clear that cessation of citizenship can only occur if the minister is satisfied that the person is entitled to a nationality of another country. This is a most important limitation of the scope of the proposed law. With respect to the question in paragraph [1.23] as to why the minister could not treat dual citizens is the same manner as those who do not possess dual citizenship, the committee is of the view that removing a person’s citizenship, where this is possible, is a legitimate objective in that it ensures that there is less prospect of a person engaging in conduct which harms the Australian community.

1.48 The committee considers that these measures may engage and limit a number of human rights, including the rights to freedom of movement and liberty, and the rights of the child and to protection of the family. In order to assess whether these are permissible limitations under international human rights law, the committee seeks the minister's more detailed advice as to the matters set out at paragraph [1.42].

1.49 As noted above, a person whose citizenship ceases under the proposed measures, if in Australia, would be granted an ex-citizen visa, which is likely to be cancelled and the person would then be classified as an unlawful non-citizen and liable for removal from the country.^[63] As such, the measures engage Australia's obligations of non-refoulement.

1.50 Pursuant to Australia's non-refoulement obligations under international law,^[64] Australia must not return any person to a country where there is a real risk that they would face persecution, torture or other serious forms of harm, such as the death penalty; arbitrary deprivation of life; or cruel, inhuman or degrading treatment or punishment.^[65] Non-refoulement obligations are absolute and may not be subject to any limitations. In addition, the obligation of non-refoulement and the right to an effective remedy require an opportunity for independent, effective and impartial review of decisions to deport or remove a person.^[66] The statement of compatibility does not acknowledge that the measures engage Australia's absolute obligations with regard to non-refoulement, or the right to an effective remedy, and so no assessment of this engagement is provided.

1.51 The types of conduct captured by proposed sections 36B and 36D, including engagement with a declared terrorist organisation, or service in the armed forces with a foreign country, may well be the same activities which risk placing an individual at risk of torture or cruel treatment in another country. As such, it would be useful for the statement of compatibility to contain an explanation of how the minister would consider the absolute prohibition against non-refoulement in the context of these determinations, noting that such consideration is not currently included in the matters to which the minister must have regard pursuant to proposed section 36E.

1.52 In relation to additional safeguards against refoulement and to protect the right to an effective remedy, judicial review of the minister's decision to strip a person of citizenship or cancel a person's visa on character grounds remains available. However, there is no right to merits review of a decision that is made personally by the minister to refuse or cancel a person's visa on character grounds, or of the original decision to cancel the person's citizenship.^[67] Judicial review in the Australian context is not likely to be sufficient to fulfil the international standard required of 'effective review' of non-refoulement decisions,^[68] as judicial review is only available on a number of restricted grounds and represents a limited form of review. Accordingly, the availability of merits review would likely be required to comply with Australia's obligations under international law.

1.53 It is noted that a citizenship cessation determination could cause a person, whose ex-citizen visa would be cancelled on character grounds, to be classified as an unlawful non-citizen and liable for removal from the country. As such, the measures engage Australia's obligations of non-refoulement and the right to an effective remedy.

1.54 Further information is required in order to fully assess the compatibility of these measures with the obligation of non-refoulement and the right to an effective remedy. It would assist with the compatibility of the measure if section 36E included a requirement that the minister must consider whether the person, if removed from Australia following loss of citizenship, would be at risk of persecution or other forms of serious harm.

1.55 The committee notes the legal advice on the bill and makes the following comments as set out below.

1.56 The availability of review rights is limited but the committee notes that that this consistent with existing citizenship loss provisions which the bill proposes to amend.

1.57 The committee seeks the minister's advice in relation to the matters set out at paragraph [1.54].

[3] Currently, only convictions from 12 December 2015 which resulted in a sentence of six years or more, or convictions in the ten years prior to this date resulting in a sentence of at least 10 years imprisonment, can be considered.

[4] Explanatory memorandum, p. 1. Proposed section 36D seeks to replace an existing provision, section 35A of the Australian Citizenship Act, which provides for conviction of the same listed offences as in this bill, but that the person has been sentenced to at least six years imprisonment (or periods totalling six years), and only for convictions from 12 December 2015 (or convictions in the ten years prior this date resulting in a sentence of at least 10 years imprisonment, can be considered).

[8] Pursuant to proposed subsection 36E(2), these include: the severity of the conduct to which a determination relates, the sentence or sentences to which the determination relates (if relevant), the degree of threat posed by the person to the Australian community, the person's age (including the best interests of the child as a primary consideration if the person is aged under 18), whether the person is being or likely to be prosecuted in relation to conduct to which the determination relates, the person's connection to the other country of which they are a national or citizen, Australia's international relations, and any other matters of public interest.

[10] Under clause 7.2 of the Criminal Code, a child aged between 10 and 14 years of age can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

[11] The measure may also engage and limit a number of other rights including the right to a private life; right to take part in public affairs; right to equality and non-discrimination; right to work; and rights to criminal process guarantees and the prohibition against retrospective criminal penalties (if the removal of citizenship could be characterised to involve the imposition of a penalty that is considered 'criminal' in nature for the purposes of international human rights law).

[13] UN Human Rights Committee, General Comment No.27: Article 12 (Freedom of Movement) (1999). See also Nystrom v Australia (1557/2007), UN Human Rights Committee, 1 September 2011.

[20] Migration Act, section 501E. While section 501E(2) provides that a person is not prevented from making an application for a protection visa, that section also notes that the person may be prevented from applying for a protection visa because of section 48A of the Migration Act. Section 48A provides that a non-citizen who, while in the migration zone, has made an application for a protection visa and that visa has been refused or cancelled, may not make a further application for a protection visa while the person is in the migration zone.

[23] See, MGC v. Australia, UN Human Rights Committee Communication No.1875/2009 (2015) [11.6]. See, also UN Human Rights Committee, Concluding observations on the sixth periodic report of Australia, CCPR/C/AUS/CO/6 (2017) [37].

[26] CRC, article 40. See, also, UN Committee on the Rights of the Child, General Comment 10: children's rights in juvenile justice (2007) [10].

[27] UN Committee on the Rights of the Child, General Comment 10: children's rights in juvenile justice (2007) [32].

[29] The terms 'nationality' and 'citizenship' are interchangeable as a matter of international law.

[32] CRC; ICCPR, articles 17 and 23; International Covenant on Economic, Social and Cultural Rights (ICESCR), article 10.

[33] Winata v Australia, UN Human Rights Committee Communication No.930/2000 (26 July 2001) [7.3].

[37] The High Court of Australia in Singh v Commonwealth [2004] HCA 43; (2004) 209 ALR 355 and Koroitamana v Commonwealth [2006] HCA 28; (2006) 227 CLR 31. These two cases considered the status of children born in Australia to non-citizen parents, and whether they could be treated as 'aliens' under section 51(xix) of the Constitution. The judgments focus on the constitutional concept of 'alienage', and the role of allegiance within that context.

[39] The explanatory memorandum states, at page 7, that the judgment in Koroitamana v Commonwealth [2006] HCA 28; (2006) 227 CLR 31 'demonstrates that an alien is a person who does not owe allegiance to Australia'.

[55] UN Committee on the Rights of the Child, General comment 14 on the right of the child to have his or her best interests taken as a primary consideration (2013); see also IAM v Denmark, UN Committee on the Rights of the Child Communication No.3/2016 (2018) [11.8].

[65] Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (9 February 2018).

[66] ICCPR, article 2 (the right to an effective remedy). See, for example, Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9]; Alzery v Sweden, UN Human Rights Committee Communication No. 1416/2005 (20 November 2006) [11.8].

[68] See Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9].

Australian Parliamentary Joint Committee on Human Rights

Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 [2019] AUPJCHR 91 (5 December 2019)