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Two Citizenship Bills which provide for significant expansion of the circumstances in which Australian citizenship may be lost are scheduled for debate in the Australian Parliament before the end of the year.
 
Touted by the Australian Government as a key part of its ‘multi-faceted approach’ to countering threats to national security, the controversial Citizenship Amendment (Allegiance to Australia) Bill 2015 will likely be passed by both Houses of Parliament following recommendations from the Parliamentary Joint Committee on Intelligence and Security. The Bill provides for the automatic cessation of Australian citizenship of a dual citizen in circumstances where the person:
 
  • acts inconsistently with their allegiance to Australia by engaging in specified terrorist-related conduct;
  • fights for, or is in the service of, a declared terrorist organisation; or
  • is convicted of a specified terrorism offence as prescribed in the Criminal Code Act 1995.
 
These provisions have been introduced in order to expand the citizenship ‘forfeiting’ provisions that apply when a person fights for an enemy state during war, to also include fighting for non-state actors such as terrorist organisations.
 
The provisions in the Bill will apply to all dual citizens, including Australian citizens by birth, and will operate to automatically cease Australian citizenship upon the person engaging in, or being convicted of, the prescribed conduct.  Due to the automatic nature of these provisions, the Minister for Immigration and Border Protection will not be required to make a formal decision on the matter.
 
Further, the Bill prevents a person from re-obtaining Australian citizenship in the future where they have ceased to be an Australian citizen on one of the above grounds, unless the Minister exempts the operation of the relevant cessation provision where the Minister considers it to be in the ‘public interest’ to do so.
 
This Bill has been the subject of considerable debate over whether the executive arm of government has the constitutional power to cancel the citizenship of a person who is an Australian citizen by birth; as well as Australia’s obligations under international law not to render any person stateless.
 
The more innocuously titled Australian Citizenship and Other Legislation Amendment Bill 2014 proposes to significantly increase the Minister’s discretionary powers in other aspects of Citizenship applications, including provisions to expand the Minister’s power to revoke citizenship if obtained as a result of “fraud or misrepresentation” committed by the Australian citizen themselves or a third party (for example a parent).
 
The Minister will be able to exercise this power for up to 10 years after citizenship is granted. If passed, this provision could apply, for example, in circumstances where the Minister is satisfied that it would be contrary to public interest for the person to remain an Australian citizen even though the person has not been convicted of an offence. Not surprisingly, these provisions have raised eyebrows among the legal profession about the apparent absence of natural justice protections in these Ministerial powers. Other proposed provisions in the Bill would empower the Minister to set aside certain decisions of the Administrative Appeals Tribunal in cases involving questions of a person’s character or identity if the Minister is satisfied that it would be in the ‘public interest’ to do so. These provisions are similar to the Minister’s existing powers under the Migration Act 1958 in relation to Australian visas however, do raise concerns as to whether this will allow sufficient oversight as to executive decision making by the Minister given the significance of the decision and the dire consequences for the individual concerned.
 
Interestingly, the existing powers to revoke citizenship have only been used in 16 cases since the Australian Citizenship Act was enacted in 1949. The provisions allowing for automatic cancellation where a citizen has served in armed forces of enemy country has never been used despite wars in intervening years.   
 
In 2008 the then Minister for Immigration Senator Chris Evans remarked to the Senate Estimates committee that he had formed the view that the Migration and Citizenship Acts provided the Minister with too much power to make decisions about individual cases and was concerned about the lack of any appeal rights for some decisions.  Certainly the challenges that arise from Australians choosing to fight for organisations such as Daesh may be serious enough to warrant legislative change, however the question arises as to whether putting even more power  in the hands of the Minister is warranted for such cases?