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Australian Parliamentary Joint Committee on Human Rights |
Concluded matters
2.1 This chapter considers the responses of legislation proponents to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.
2.2 Correspondence relating to these matters is available on the committee's website.[1]
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Purpose
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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.
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Portfolio
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Home Affairs
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Introduced
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House of Representatives, 19 September 2019
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Right[s]
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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
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Status
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Concluded examination
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2.3 The committee requested a response from the minister in relation to the bill in Report 6 of 2019.[3]
2.4 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 the minister is satisfied that, by doing any of the following, a person has demonstrated that they have 'repudiated their allegiance to Australia':
• by engaging in specified terrorism-related conduct (proposed section 36B);[4] or
• by being convicted since 29 May 2003[5] 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).[6]
2.5 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'.[7] 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.[8]
2.6 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.[9] Proposed section 36E sets out a range of matters to which the minister must have regard in considering the public interest in this context.[10]
2.7 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.[11] 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).[12]
2.8 The citizenship cessation arrangements outlined in this bill engage and limit a number of rights, including the rights to freedom of movement, liberty, rights of the child and the protection of the family. It limits the right to freedom of movement as, 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.[13] The right to freedom of movement includes a right to leave a country, and to enter, remain in, or return to one's 'own country'.[14] '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.[15]
2.9 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,[16] 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).[17] 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.[18] A person whose ex-citizen visa is cancelled would become an unlawful
non-citizen and may be subject to mandatory immigration detention pending removal.[19]
2.10 The right to liberty prohibits the arbitrary and unlawful deprivation of liberty.[20] 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 deprivation 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.[21]
2.11 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.[22] 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.[23] 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,[24] and are to be protected from arbitrary interference with their family.[25] 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.
2.12 The separation of a person from their family may also engage and limit the right to protection of the family.[26] 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.[27]
2.13 Limits on these rights may be permissible where a measure is prescribed by law, seeks to achieve a legitimate objective, is rationally connected to (that is effective to achieve) that objective, and is proportionate to that objective. The initial analysis considered further information was required in order to assess whether the measure met all of these criteria, in particular:
• 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.
2.14 The full initial legal analysis is set out at Report 6 of 2019.[28]
2.15 With respect to the rights of the child and protection of the family, the committee noted 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'.
2.16 With respect to the requirement that interferences with rights must be prescribed by law, the committee noted 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.
2.17 The committee noted concerns about certainty as to whether a person has demonstrated that they have ‘repudiated their allegiance to Australia.’ The committee noted, 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.
2.18 The committee stated that it was clear that cessation of citizenship can only occur if the minister is satisfied that the person is entitled to a nationality of another country, which is a most important limitation of the scope of the proposed law. With respect to the question as to why the minister could not treat dual citizens in the same manner as those who do not possess dual citizenship, the committee was 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.
2.19 The committee noted the legal advice on the bill and considered 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 requested the minister's more detailed advice as to the matters set out at paragraph [2.13].
2.20 The minister advised:
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
There is no standalone criterion that a person has repudiated their allegiance to Australia. The relevant criterion requires the Minister to be satisfied that the terrorism-related conduct the person engaged in demonstrates that the person has repudiated their allegiance to Australia.
This reflects the purpose clause in the Bill which states that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia. When people engage in terrorism-related behaviour, they demonstrate that they have rejected the values and interests that are fundamental to Australian citizenship.
An exhaustive list of the specific conduct and convictions that give rise to the operation of the terrorism-related citizenship cessation provisions is contained in the Bill in sections 36B and 36D (and in current sections s33AA, 35 and 35A).
The conduct specified in proposed paragraph 36B(5)(j), relating to where an individual serves in the armed forces of a country at war with Australia, reflects a long standing provision dating back to the Australian Citizenship Act 1948. That provision provided that an Australian citizen who is a national or citizen of that country and serves in the armed forces of a country at war with Australia shall, upon commencing so to serve, cease to be an Australian citizen. The provision does not apply to such service engaged in by a person before they became an Australian citizen. By making it clear that engaging in such activity is opposed to the responsibilities and values central to Australian citizenship, the legislation clearly notifies citizens that engaging in such activity will have the consequences provided for in the Bill.
The Bill also provides adequate safeguards. First, the Minister’s satisfaction that a person’s conduct demonstrates a repudiation of their allegiance to Australia must be reasonable. The High Court has said ‘satisfaction’ is a state of mind, which must be formed reasonably and on a correct understanding of the law. Second, the Bill provides an affected person the opportunity to apply for revocation of the determination to cease their citizenship. This enables the person to set out reasons that the decision should be revoked, including representations that they were not aware of the gravity or consequences of their actions. The Minister is required to consider that application. Third, the Minister may revoke the determination on the Minister’s own initiative, if satisfied that doing so would be in the public interest. Fourth, the affected person can also apply for judicial review of the determination, in which the Court can consider whether there has been an error of law in the making of the decision.
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.
The Government does not propose to manage all dual-national Australians that meet the relevant thresholds using citizenship cessation, only where it is the most effective, proportionate, and appropriate tool to manage the specific risks. The amendments will enable citizenship cessation to be chosen from amongst other administrative measures when it is considered the most appropriate and proportionate response for managing an Australian of counter-terrorism interest. The provisions will apply to those who have engaged in terrorism-related activities and where the relevant thresholds are met. As the Committee has noted, ‘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’.
The Government’s first priority is to keep the Australian community safe. Since their introduction, the citizenship cessation provisions have been effective in removing from the Australian community those who, through their conduct, have repudiated their allegiance to Australia and limited membership in the community to those who uphold and embrace Australian values.
Australia’s national security and counter-terrorism laws are under constant review to ensure law enforcement and intelligence agencies have the powers required to counter the threat environment. It is appropriate that the Minister of the day make decisions about citizenship cessation based on all available information and with regard to certain criteria. The Bill’s objective is to improve the effectiveness and flexibility of the framework of Australia’s national security laws. The amendments will ensure the best outcomes are achieved for Australia’s national security.
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 protecting the community and acting as a deterrent.
The stated objective of the Bill is contained within the purpose clause at section 36A. It details that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared valued of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia. This is consistent with the objectives of the citizenship cessation provisions that have been in effect since 2015, and the provisions have been effective in protecting the integrity of Australian citizenship and the Australian community since then.
It is the view of the Australian Government, supported by commentary from the Department of Home Affairs, the Australian Federal Police (AFP) and the Australian Security Intelligence Organisation (ASIO) that the existing provisions have been effective in conjunction with other
counter-terrorism tools and mechanisms available to Australian national security agencies. The provisions will allow citizenship cessation to sit alongside other available measures, thereby making citizenship cessation part of the suite of Australia’s counter-terrorism measures, rather than something that occurs automatically through a person’s own conduct.
These amendments strengthen the utility of the provisions by enabling the Minister to take into account a broader picture of a person’s conduct and the degree of threat posed by the person and, where relevant, a broader appraisal of the seriousness of terrorism-related convictions. The measures in this Bill will enhance the safety of the Australian community by enabling the revocation of Australian citizenship in circumstances where such a person poses a threat to the community and has repudiated their allegiance to Australia.
ASIO has stated that it is too early to determine any direct deterrent effects or other security outcomes among the individuals whose citizenship has ceased under the current citizenship cessation provisions. However, they also note that the practical outcome of the provisions is to locate such individuals offshore, rendering them unable to physically execute an attack, or any face-to-face radicalisation activities, in Australia. ASIO concludes that citizenship cessation is a measure that works alongside a number of other measures to protect Australia and Australians from terrorism. ASIO has stated their support for a move to a Ministerial decision-making model, as such a model enables all of the relevant security factors to be weighed against broader national interests.
AFP has likewise supported citizenship cessation as a mechanism that sits alongside a number of legislative and other measures to assist in addressing the risk of terrorism in Australia. The AFP acknowledges the complexity of managing the terrorist threat to Australia, and that authorities need a range of mechanisms in order to manage that threat, one of which is citizenship cessation. The AFP has stated their support for the amendments in the Bill, noting that citizenship cessation contributes to mitigating the risk posed to Australians.
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;
The Government’s first priority is to keep the Australian community safe. In making a citizenship cessation determination, the Minister must be satisfied that it is not in the public interest for the person to remain an Australian citizen having regard to a number of factors which may include the person’s connection to Australia and any other matters of public interest. This may extend to the consideration of any potential impact on family members. There are a range factors that the Minister must have regard to under the public interest criteria in considering whether to cease a person’s Australian citizenship. As such, section 36E is not exhaustive because cases will vary on an individual basis; the provision is, however, appropriately flexible in allowing the Minister to take into account any other matters of public interest.
As noted in the explanatory memorandum to the Bill, the Minister is well placed to make an assessment of public interest as an elected member of the Parliament. The Minister represents the Australian community and has a particular insight into Australian community standards and values and as to whether it would be contrary to the public interest for the person to remain an Australian citizen. As an extension of this, it is appropriate that the Minister should determine the weight that different considerations should be given, noting that this will vary from case to case.
The requirement to consider and balance the various factors is intended to ensure that any interference with the family, the right to re-enter one's own country, or the right to freedom of movement, is not arbitrary, since cessation will occur where the national security risks and threats to the Australian community are such that it is not in the public interest for the person to remain a citizen. The Minister must take into account the individual circumstances of the case in determining whether to exercise the power to cease a person's citizenship. Any limitation of a person’s rights in an individual case would be proportionate to the legitimate goal of ensuring the security of the Australian community.
• when consideration is given to making a determination in relation to a person under 18, why the best interests of the child is to be considered alongside a range of other factors and what 'as a primary consideration' means in this context;
When making a citizenship cessation determination, the Minister is required to take into account the best interests of the child as a primary consideration. As the Committee is aware, this is consistent with Article 3(1) of the Convention on the Rights of the Child. Article 3(1) does not state more than that the best interests of the child are to be a primary consideration, not the only, or the only primary, consideration. The best interests of the child may be balanced by other relevant public interest considerations to which the Minister must have regard. This will vary from case to case, and it is not possible or appropriate to pre-empt the considerations, or the balancing of those considerations, that the Minister will take into account in any given decision, including those that involve a person under 18 years of age.
As mentioned above and in the explanatory memorandum to the Bill, the Minister is well placed to make an assessment of public interest as an elected member of the Parliament. The Minister represents the Australian community and has a particular insight into Australian community standards and values and if it would be contrary to the public interest for the person to remain an Australian citizen. As an extension of this, it is appropriate that the Minister determine the weight different considerations are given, noting that this will vary from case to case.
• why there is no independent merits review of the minister's discretionary powers;
Avenues for review exist in the Bill, many of which are in addition to those provided for in the existing legislation. Consistent with the approach in the Migration Act 1958 (Migration Act), it is not appropriate for the Administrative Appeals Tribunal to review a decision made personally by the Minister in relation to the public interest, as the Minister is responsible to the Parliament.
Judicial review is an appropriate form of independent review, and an affected person will have the right to seek judicial review of the basis on which the citizenship cessation determination was made. Specifically, the Federal Court and High Court will have original jurisdiction over matters including whether or not the requisite conduct was engaged in by the person, and whether or not the person was a dual citizen at the time of the conduct. If a court finds either of these conditions are not satisfied, the cessation of citizenship will be automatically revoked under the provisions in the Bill.
The Bill also contains several safeguards so that, following a cessation determination, an affected person or their delegate can challenge the grounds of the Minister’s satisfaction.
- First, once notice of cessation is provided, the person may apply to the Minister for a revocation of the determination (section 36H). The Minister must review an application and must revoke the determination if satisfied the person did not engage in the conduct to which the determination relates, or that the person was not a national or citizen of another country at the time the determination was made. The Minister must observe the rules of natural justice in this process.
- Second, the Minister may, on the Minister’s own initiative, revoke a determination if satisfied this is in the public interest (section 36J).
- Third, the Minister’s determination is automatically overturned and the person’s citizenship taken never to have ceased if a court finds that the person did not engage in the conduct to which the determination relates (section 36K).
Furthermore, merits review of the relevant ASIO Qualified Security Assessment is available in the Security Appeals Division of the Administrative Appeals Tribunal.
• 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.
The Bill proposes that section 36B(5)(a)-(h) and 36D apply from 29 May 2003 as this was the date the offences referenced in 36D were fully enacted in the Criminal Code Act 1995 by the Criminal Code Amendment (Terrorism) Act 2003. Providing for both 36B and 36D to apply in respect of conduct (s36B) or convictions (s36D) to the same date ensures legislative consistency between the two provisions.
By adopting a Ministerial decision-making model, not everyone who has engaged in conduct or was subject to a terrorist-related conviction from 29 May 2003 onwards will necessarily have his or her citizenship ceased. Under the proposed model, the Minister must consider a range of factors including the severity of the conduct and the degree of threat currently posed by the person at the time of consideration. This requires the Minister to weigh up a number of public interest considerations in deciding whether a person’s citizenship should cease. Further, once the Minister makes a cessation determination, the person’s citizenship is taken to have ceased from the date of that determination.
Extending the period to 29 May 2003 increases the effectiveness of the provisions as it enables a broader picture of a person’s conduct to be taken into account when determining whether to cease a person’s Australian citizenship. It also recognises that past terrorist conduct is conduct that all Australians would view as repugnant and in contradiction of the values that define our society.
2.21 As set out in the initial analysis, the rights to freedom of movement and liberty, and the rights of the child and the protection of the family are engaged and limited by this bill. 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.
2.22 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.[30]
2.23 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'.[31] 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.[32] It is unclear on the face of the bill what acts would demonstrate that a person has repudiated their allegiance to Australia.
2.24 In response to whether the criteria that a person has 'repudiated their allegiance to Australia' is sufficiently certain for people to understand the legal consequences of their actions, the minister advised that that there is no standalone criteria that a person has repudiated their allegiance, and that it requires the minister to be satisfied a person has engaged in specified terrorism related conduct, which is exhaustively set out in proposed section 36B and 36D. The minister also advised that this reflects the purpose clause in the bill, that through conduct ‘incompatible with the shared values of the Australian community’ citizens may demonstrate that they have severed the common bond of citizenship and ‘repudiated their allegiance to Australia’. However, it is still unclear whether the criteria that a person has 'repudiated their allegiance to Australia' is sufficiently certain such that people would understand the circumstances under which the minister may restrict the exercise of their rights. The minister has advised that the government does not intend to manage all those that meet the relevant thresholds using the citizenship cessation provisions and that not everyone who is considered to have engaged in the relevant conduct ‘will necessarily have his or her citizenship ceased’. As such it remains unclear when it will be determined that a person has repudiated their ‘allegiance’ to Australia, noting that while the minister must be satisfied that a person has engaged in specified conduct, the additional criterion that they have ‘repudiated their allegiance to Australia’ is based on broad, uncertain and essentially subjective terms. As such, it is not clear that this criterion meets the ‘quality of law’ test.
2.25 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. As noted in the initial analysis, without a proclamation or declaration of war it is unclear if persons serving in the armed forces of another country would know that the country is formally at war with Australia. The minister has advised that this relates to a provision that dates back to the Citizenship Act 1948, but provides no answer as to whether this measure is sufficiently certain such that people would understand the circumstances under which the minister may restrict the exercise of their rights. As such, it also remains unclear whether this measure would satisfy the quality of law test.
2.26 As set out in Report 6 of 2019,[33] the statement of compatibility for the bill identifies the objective of the bill as being to safeguard national security and to ensure that citizenship is limited to those who ‘embrace and uphold Australian values’.[34] The initial analysis raised questions as to whether the cessation of citizenship as a means of protecting national security is strictly necessary, noting that the bill does not apply to non-dual-citizens, and so if the threat posed to Australia by such citizens can be managed without depriving them of citizenship, it is unclear why similar measures could not adequately address any threat posed by dual-citizens. In response, the minister advised that the government does not propose to manage all dual-national Australians through citizenship cessation, only where it is the most effective, proportionate and appropriate tool to manage specific risks. The minister also advised that the government's first priority is the safety of the Australian community, and that the objective of the bill is to improve the effectiveness and flexibility of the framework of Australia’s national security law to ensure the best outcomes are achieved for Australia’s national security. Improving the effectiveness of Australia’s national security is likely to be considered to be a legitimate objective under international human rights law. However, the fact that the government considers it can adequately deal with any threat posed by Australian citizens who are not dual nationals without the need to cease their Australian citizenship calls into question whether the measures are strictly necessary. In light of the minister's reassurance that there is a whole suite of other measures available to deal with any threat to national security, that citizenship cessation may not be applied even in cases where a person meets the criteria, and that non-dual nationals are dealt with without cessation of citizenship, it is not possible to conclude that the measures pursue a legitimate objective for the purposes of international human rights law.
2.27 The minister was also requested to provide information on how the measures are rationally connected to (that is effective to achieve) the stated objectives, particularly, any evidence that demonstrates that the 2015 measures have been effective in protecting the community and acting as a deterrent. The minister advised that the citizenship cessation provisions that have been in force since 2015 have 'been effective in protecting the integrity of the Australian community since then'. As evidence, the minister states the 'view of the Australian Government, supported by commentary from the Department of Home Affairs, the Australian Federal Police (AFP) and the Australian Security Intelligence Organisation (ASIO) that the existing provisions have been effective in conjunction with other counter-terrorism tools and mechanisms available to Australian national security agencies'. However, the minister notes a contrary view by ASIO, which 'stated that it is too early to determine any direct deterrent effects or other security outcomes among the individuals whose citizenship has ceased under the current citizenship cessation provisions'. ASIO has expressed this view in its submission on the bill to the Parliamentary Joint Committee on Intelligence and Security, where it states that 'ASIO considers citizenship cessation to be a legislative measure that works alongside a number of other tools to protect Australia and Australians from terrorism, but it does not necessarily eliminate the threat posed by those who are subject to citizenship cessation'.[35] Further, ASIO adds that citizenship cessation:
may also have unintended or unforeseen adverse security
outcomes—potentially including reducing one manifestation of the terrorist threat while exacerbating another. There may be occasions where the better security outcome would be that citizenship is retained, despite a person meeting the legislative criteria for citizenship cessation.[36]
2.28 In light of the minister's response, and the comments by ASIO on the efficacy of citizenship cessation in the current bill, questions remain as to whether the measures are necessarily rationally connected to the stated objectives.
2.29 A range of further information was sought in order to assess the proportionality of the proposed measures.
2.30 In particular, there are questions as to whether the measures are sufficiently circumscribed, noting in particular the breadth of the minister’s discretionary powers, contain sufficient safeguards; and are the least rights restrictive approach. In particular, 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.
2.31 Proposed section 36E sets out a range of matters that the minister must have regard to,[37] however it 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 requirement that the minister must consider individual circumstances before ceasing a person’s citizenship assists with the proportionality of the measure, however, further information was sought as to 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 determination. The minister advised that the government’s first priority is to keep the Australian community safe and in determining if it is not in the public interest for a person to remain a citizen, the minister 'may include' the person's connection to Australia and any other matters of public interest. The minister adds that the requirement to consider and balance various factors is intended to ensure that any interference with rights is not arbitrary.
2.32 The minister further adds that as an elected member of parliament, the minister is 'well placed to make an assessment of public interest', and that 'it is appropriate that the Minister should determine the weight that different considerations should be given'. However, the compatibility of legislation must be assessed as drafted, rather than how it may or may not be implemented. As the UN Human Rights Committee has explained, '[t]he laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution'.[38] The claim that '[t]he minister represents the Australian community and has a particular insight into Australian community standards and values' is not a sufficient safeguard in the absence of an express provision to consider a person's connection to Australia, including any impact on family members and their right to freedom of movement, before making a citizenship determination.
2.33 In addition, where the minister is considering cancelling the citizenship of a child under 18 years of age, proposed section 36E requires the minister, in considering the public interest, to consider the best interests of the child as a primary consideration.
2.34 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.[39] 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.[40]
2.35 In answering the question of when consideration is given to making a determination in relation to a person under 18, why the best interests of the child is to be considered alongside a range of other factors and what 'as a primary consideration' means in this context, the minister advised that the best interests of the child is only one of many other relevant public interest considerations. The minister also reiterated that the minister is well placed to make an assessment of the public interest as an elected member of parliament. The minister interprets article 3(1) of the Convention on the Rights of the Child as stating that the best interests of the child 'is not the only, or the only primary, consideration', and 'the best interests of the child may be balanced by other relevant public interest considerations'. However, this would appear to be a misconstruction of article 3(1) of the Convention on the Rights of the Child. Under the Convention the best interests of the child is a 'primary' consideration, as compared with other considerations—it is not just one primary consideration among other equally primary considerations. The UN Committee on the Rights of the Child has explained that:
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.[41]
2.36 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. Further, balancing the elements in the best interests assessment, should be carried out with full respect for all the rights contained in the Convention[42] and in giving full effect to the child's best interests the 'universal, indivisible, interdependent and interrelated nature of children's rights, 'should be borne in mind'.[43] Importantly, the best interests assessment must be carried out in a way that respects the evolving capacities of the child:[44]
In the best interests assessment, one has to consider that the capacities of the child will evolve. Decision-makers should therefore consider measures that can be revised or adjusted accordingly, instead of making definitive and irreversible decisions. To do this, they should not only assess the physical, emotional, educational and other needs at the specific moment of the decision, but should also consider the possible scenarios of the child's development, and analyse them in the short and long term. In this context, decisions should assess continuity and stability in the child's present and future situation.[45]
2.37 Permanently ceasing the citizenship of a child as young as 10 or 14[46] would subject the child to an irrevocable decision, which could adversely impact their short to long term development and heighten their vulnerability. The UN Committee on the Rights of the Child has stated in their general comment on children's rights in the child justice system,[47] there are numerous cases of children being recruited and exploited by non-state armed groups, including those designated as terrorist groups, and 'when under the control of such groups, children may become victims of multiple forms of violations, such as conscription; military training; being used in hostilities and/or terrorist acts, including suicide attacks; being forced to carry out executions; being used as human shields' among others. Potentially subjecting these children to citizenship cessation can add to the list of already existing rights violations to which such children may have been subjected.
2.38 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'.[48] 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. The minister’s response did not address this.
2.39 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.[49] 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.[50] In answering the question as to why there is no independent merits review of the minister's discretionary powers, the minister advised that it is not appropriate for the Administrative Appeals Tribunal to review a decision made personally by the minister as the minister is responsible to Parliament and that judicial review is an appropriate form of review.
2.40 However, the fact that the minister can reconsider their own decision cannot be considered to be a form of independent merits review and 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. The minister also advised that the bill contains other safeguards whereby an affected person can challenge the grounds of the minister's decision. However, the listed safeguards include that the minister could reconsider their own decision, or that if a court finds the conduct was never engaged in the minister’s decision will be automatically overturned. While the involvement of a court in determining that the relevant conduct was never engaged in may assist in the proportionality of the measure, it is noted that this only applies 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, that they did not engage in the relevant conduct or were not a national or citizen of another country (noting that such persons may often not be in the country when seeking to make such a challenge). 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. 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).[51] This broad power to restrict disclosure of the basis on which the determination was made would likely make review of the decision more difficult.
2.41 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. 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.
2.42 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. The minister did not address this issue in his response.
2.43 Finally, 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 [2.26], 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.
2.44 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. Information was therefore sought as to why the discretionary citizenship cancellation 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. The minister's response outlines that the date of 29 May 2003 was chosen because it was the date the relevant offences were fully enacted. The minister argues that retroactively extending the period back to 2003 'increases the effectiveness of the provision as it enables a broader picture of a person's conduct to be taken into account when determining whether to cease a person's Australian citizenship’. The minister also reiterates that by adopting a ministerial decision-making model, not everyone who has engaged in the relevant conduct or was convicted of relevant offences will necessarily have his or her citizenship ceased. Again, this raises concerns about the breadth of the minister’s powers and whether the law is sufficiently certain and clear for persons to understand when it will apply. It is noted that this would allow the minister to cease the citizenship of a person who allegedly engaged in conduct over 16 years ago (although no criminal charges have been brought) and to persons who have served any sentence as the result of a conviction dating over 16 years ago, noting that the cessation of citizenship was not a consequence that applied at the time of the relevant conduct. In addition, this could apply to those who were children at the time of the commission of the offence. It would appear that applying citizenship cessation retrospectively to conduct that may have occurred over 16 years ago, is not likely to be the least rights restrictive approach to achieving the stated objective.
2.45 Citizenship cessation engages and limits the rights to freedom of movement and liberty and the rights of the child and the protection of the family. While these rights may be subject to permissible limitations under international human rights law, it has not been demonstrated that these proposed measures are sufficiently certain such that people would understand the circumstances under which the minister may restrict the exercise of their rights. In addition, noting that the government considers it can adequately deal with any threat posed by Australian citizens who are not dual nationals without the need to cease their Australian citizenship, it has not been established that the measures are strictly necessary, and as such, on the information provided by the minister, it is not possible to conclude that the measures pursue a legitimate objective for the purposes of international human rights law. Questions also remain as to whether the measures are necessarily rationally connected to the stated objectives, or are a proportionate means of achieving those objectives. In particular, it does not appear that the measures are sufficiently circumscribed, noting in particular the breadth of the minister’s powers. Nor do they appear to contain sufficient safeguards, particularly to ensure adequate consideration is given to the best interests of the child and protection of the family and to ensure adequate rights of review. The measures also do not appear to constitute the least rights restrictive approach to achieve the stated objectives, noting that there already exist a range of other methods to protect national security and the amendments apply retrospectively.
2.46 As such, there is a significant risk that the cessation of citizenship provisions as set out in the bill, as currently drafted, could result in a person being denied their right to freedom of movement, including their right to enter, remain in, or return to their ‘own country’. There is also a risk that the cessation of a person’s citizenship, making them a non-citizen, could result in them being placed in mandatory immigration detention, which could result in an impermissible limitation on their right to liberty. Further, as the bill would allow the minister to cease the citizenship of a child as young as 10 or 14, with the best interests of the child only to be considered alongside a list of other considerations, and without any specific requirement that the minister consider the importance of protecting the right to family, there is a significant risk that the rights of the child and the protection of the family will not be adequately protected.
2.47 The committee thanks the minister for this response. The committee notes the legal advice 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 protection of the family.
2.48 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.
2.49 The committee notes concerns about certainty as to 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. As such, the committee considers the provisions are sufficiently certain so as to meet the 'quality of law' test.
2.50 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 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.
2.51 The committee notes the minister's advice, as supported by the Australian Federal Police (AFP) and the Australian Security Intelligence Organisation (ASIO), that the existing citizenship cessation provisions have been effective, in conjunction with other counter-terrorism tools and mechanisms, in protecting the integrity of Australian citizenship and the Australian community. The committee therefore considers the measures are likely to be effective to achieve (that is, rationally connected to) the legitimate objective of protecting the Australian community.
2.52 The committee notes the minister's advice that the ministerial decision-making model means that individual circumstances will be considered in assessing the public interest in whether a person should remain an Australian citizen, which is intended to ensure that any interference with the family, the right to re-enter one's own country, or the right to freedom of movement, is not arbitrary. The committee is therefore satisfied that the measures are proportionate to the aims sought to be achieved. In addition, the committee considers the breadth of the minister's powers is sufficiently constrained through the safeguard of judicial review and the minister's ability to reconsider his or her own decision. As such, the committee considers the cessation of citizenship provisions are compatible with the rights to freedom of movement and liberty and the rights of the child and protection of the family.
2.53 The citizenship cessation determination outlined in this bill 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.
2.54 Thus, further information was requested in order to fully assess the compatibility of these measures with the obligation of non-refoulement and the right to an effective remedy. It was noted that 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.
2.55 The committee noted the legal advice on the bill and noted that the availability of review rights is limited but that this is consistent with existing citizenship loss provisions which the bill proposes to amend. The committee sought the minister's advice in relation to the matters set out at paragraph [2.54].
2.56 The minister advised:
The provisions of the Bill are compatible with Australia’s non-refoulement obligations. Australia is committed to its international obligations and does not seek to resile from or limit its non-refoulement obligations.
The Minister’s discretionary power to cease a person’s citizenship where the person is in Australia will not result directly in them being liable for removal from Australia. Any such liability would arise only after the person’s lawful status in Australia was rescinded and the person was detained under the Migration Act as an unlawful non-citizen.
Upon the Minister’s determination to cease a person’s citizenship, the person will be granted an ex-citizen visa by operation of law, i.e. automatically, under section 35 of the Migration Act. The ex-citizen visa is a permanent visa allowing the holder to remain in, but not re-enter Australia. Any action in relation to the cancellation of this visa on character grounds involves a separate process under the Migration Act. Whether the person engages one of Australia’s non-refoulement obligations would be considered as part of any cancellation process. A visa cancellation decision by the Minister’s delegate will be subject to merits review, and a cancellation decision by the Minister personally would be subject to judicial review.
The Committee has commented that consideration should be given to amending section 36E of the Bill to include 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. Prior to making a determination to cease a person’s citizenship, the Minister must consider the person’s connection to the other country of which the person is a national or citizen, and any other matters of public interest. Matters relating to any possible risk facing a person in the other country could be considered as part of this assessment.
2.57 Pursuant to Australia's non-refoulement obligations under international law,[53] 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.[54] 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.[55] 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 is not clear 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.
2.58 The minister advised that prior to making a determination to cease citizenship the minister 'must consider the person's connection to the other country of which the person is a national or citizen, and any other matters of public interest'; and that 'matters relating to any possible risk facing a person in the other country could be considered as part of this assessment'. The minister also advises that the minister’s power to cease a person’s citizenship will not result ‘directly’ in them being liable for removal from Australia, as such a person if in Australia, would be granted an ex-citizen visa, and any action to cancel that visa on character grounds involves a separate process, at which point non-refoulment obligations would be considered.
2.59 While it is noted that the decision to cease citizenship would not, in itself, result in a person being sent to a country where they could be at risk of persecution, it could be the first step in a process by which a person may be subject to refoulement. On a number of previous occasions, the committee has raised serious concerns about the adequacy of protections against the risk of refoulement in the context of the existing legislative regime.[56] In this respect it is noted that the Migration Act 1958 specifically states that for the purposes of exercising removal powers, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. [57]
2.60 The minister also advised that any decision to cancel a person’s ex-citizen visa made by the minister’s delegate is subject to merits review and a decision made by the minister is subject to judicial review. 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.[58] 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,[59] 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.
2.61 As such, measures which provide the minister with the discretionary power to cease a person’s citizenship, resulting in a loss of a right to remain in Australia (noting that any ex-citizen visa is highly likely to be cancelled on character grounds), risk resulting in such persons being subject to removal to countries where they may face persecution. As such, the measures may not be consistent with Australia’s non-refoulement obligations and the right to an effective remedy. This risk may be reduced if proposed section 36E included a specific 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 (and independent merits review of this decision were available).
2.62 The committee thanks the minister for this response. The committee notes that the cessation of a person’s citizenship would result in a person located in Australia being granted an ex-citizen visa, and as this visa could be subject to cancellation on character grounds, the person may become an unlawful non-citizen and liable for removal from the country. The committee notes the legal advice that this therefore engages Australia’s obligations of non-refoulement and the right to an effective remedy.
2.63 The committee notes that the availability of review rights of decisions to cease citizenship and cancel visas is limited but that this is consistent with existing citizenship loss provisions which the bill proposes to amend.
2.64 Noting the minister’s advice that the power to cease a person’s citizenship where the person is in Australia will not directly result in them being liable for removal from Australia, the committee does not consider that the measures directly engage the obligations of non-refoulement and a right to an effective remedy. The committee welcomes the minister’s commitment to comply with Australia’s non-refoulement obligations.
2.1
[1] See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[2] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, Report 1 of 2020; [2020] AUPJCHR 21.
[3] Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019),
pp. 2-19.
[4] Proposed sections 36B and 36C would replace existing sections 33AA, 35 and 35AA of the Australian Citizenship Act 2007 (Australian Citizenship Act), which were introduced in 2015, which provides for the automatic cessation of citizenship for certain conduct. The 2015 changes were introduced by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015.
[5] 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.
[6] 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).
[7] Proposed subsections 36B(2) and 36D(2).
[8] Australian Citizenship Act, subsection 33AA(1) and paragraph 35A(1)(c).
[9] Proposed paragraphs 36B(1)(b) and 36D(1)(d).
[10] 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.
[11] Proposed subsections 36B(11), 36D(9).
[12] 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.
[13] Statement of compatibility, p. 10.
[14] International Covenant on Civil and Political Rights, article 12.
[15] 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.
[16] Migration Act, section 501.
[17] Migration Act, subsection 501(7).
[18] Migration Act, section 501E. While subsection 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.
[19] Migration Act, sections 189, 198.
[20] International Covenant on Civil and Political Rights, article 9.
[21] 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].
[22] See, Convention on the Rights of the Child.
[23] Convention on the Rights of the Child, article 40. See, also, UN Committee on the Rights of the Child, General Comment 10: children's rights in juvenile justice (2007) [10].
[24] Convention on the Rights of the Child, article 9.
[25] Convention on the Rights of the Child, article 16.
[26] Convention on the Rights of the Child; International Covenant on Civil and Political Rights, articles 17 and 23; International Covenant on Economic, Social and Cultural Rights, article 10.
[27] Winata v Australia, UN Human Rights Committee Communication No.930/2000 (26 July 2001) [7.3].
[28] Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 39-51.
[29] The minister's response to the committee's inquiries was received on 6 January 2020. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[30] Pinkney v Canada, UN Human Rights Communication No.27/1977 (1981) [34].
[31] Item 9, proposed paragraphs 36B(1)(b) and 36D(1)(c).
[32] Australian Citizenship Act, subsection 33AA(3).
[33] Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019),
pp. 2-19.
[34] Statement of compatibility, p. 3.
[35] 'ASIO submission to the Parliamentary Joint Committee on Intelligence and Security: Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019' (14 October 2019)
p. 2.
[36] 'ASIO submission to the Parliamentary Joint Committee on Intelligence and Security: Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019' (14 October 2019)
p. 5.
[37] 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.
[38] UN Human Rights Committee, General Comment No. 27: Article 12 (Freedom of movement) (1999) [15].
[39] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), http://www.un.org/documents/ga/res/40/a40r033.htm; and Australian Institute of Criminology, The Age of Criminal Responsibility, https://aic.gov.au/publications/cfi/cfi106.
[40] Convention on the Rights of the Child, article 40. See, also, UN Committee on the Rights of the Child, General Comment 10: children's rights in juvenile justice (2007) [10].
[41] 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].
[42] 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) [32].
[43] 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) [16(a)] and [82].
[44] Article 5 of the Convention on the Rights of the Child, which introduced for the first time in an international human rights treaty, the concept of the ‘evolving capacities’ of the child. This principle has been described as a new principle of interpretation in international law. See Gerison Lansdown, Innocenti Insights Report No. 11, The Evolving Capacities of the Child, 2005, p. ix.
[45] 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) [84].
[46] 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.
[47] UN Committee on the Rights of the Child, General comment 24 on children's rights in the child justice system (2019) [98].
[48] Statement of compatibility, p. 13.
[49] See proposed subsections 36B(11), 36D(9), 36F(7), 36G(8), and 36J(7).
[50] Proposed section 36H.
[51] See proposed subsection 36F(6).
[52] The minister's response to the committee's inquiries was received on 6 January 2020. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[53] International Covenant on Civil and Political Rights; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[54] Committee against Torture, General Comment No.4 (2017) on the implementation of article 3 in the context of article 22 (9 February 2018).
[55] International Covenant on Civil and Political Rights, 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].
[56] See, for example, the committee's analysis of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 in Parliamentary Joint Committee on Human Rights, Fourteenth Report of the 44th Parliament (October 2014) pp. 77-78. The UN Human Rights Committee in its Concluding observations on Australia recommended '[r]epealing section 197(c) of the Migration Act 1958 and introducing a legal obligation to ensure that the removal of an individual must always be consistent with the State party's non-refoulement obligations': CCPR/C/AUS/CO/6 (2017), [34]. See, also, Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019)
pp. 14-17; Report 12 of 2018 (27 November 2018) pp. 2-22; Report 11 of 2018 (16 October 2018) pp. 84-90; Thirty-sixth report of the 44th Parliament (16 March 2016)
pp. 196-202; Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28.
[57] See section 197C of the Migration Act 1958.
[58] Australian Citizenship Act, section 52.
[59] See Singh v Canada, UN Committee against Torture Communication No.319/2007 (30 May 2011) [8.8]-[8.9].
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