Who exactly makes the call on conduct that revokes citizenship? New bill doesn't say

On Wednesday morning, the public finally saw the text of the government’s citizenship revocation bill. Should it be enacted in its current form, Australian citizenship will be able to be stripped from dual nationals by bureaucratic determination for conduct that is defined with reference to the criminal law.

The bill introduces three means for revoking an Australian citizenship under the Australian Citizenship Act 2007.

Revocation on conviction

Section 35A provides for revocation if you are a dual national convicted of one of an extensive range of offences, listed in Section 35A(3). You cease to be an Australian citizen at the time of conviction.

The bill adds revocation of Australian citizenship as an additional consequence of being convicted of one of the listed criminal offences. The number of criminal offences triggering revocation is large and includes intentionally damaging Commonwealth property.

The primary protection Section 35A provides to the Australian citizen – the requirement of conviction by a court for the listed crime – is then undermined by the overlapping application of Section 33AA. The application of this section is triggered by much of the same conduct, but does not require conviction by a court.

Revocation in the absence of conviction

In the lead-up to the bill’s introduction, much of the debate centred on judicial involvement in the decision to strip someone of citizenship. The bill provides for revocation for conduct defined with reference to criminal offences in the absence of any judicial involvement at all.

Section 33AA deems someone to have renounced their citizenship when they “act inconsistently with their allegiance to Australia” by engaging in a range of conduct listed in subsection (2). The “words and expressions” used to describe that conduct are stated to have the same meaning as the provisions of the Criminal Code listed in the next subsection.

If they have the same meaning, then revocation attaches to the same conduct that would ground conviction for one of the listed offences. Revocation is triggered by a determination that that conduct has occurred, in the absence of any conviction by a court.

The bill is silent on the crucial issue of how that determination is made. The government has spoken of the bill as “self-executing”, but this phrase raises more questions than it answers.

Someone in government has to determine that the relevant conduct has occurred. But who will it be? A minister? A bureaucrat subject to ministerial pressure? And what is the process by which that determination will be made?

The conduct covered by Section 33AA overlaps with Section 35A. Section 33AA references a number of offences, conviction for which would also trigger revocation under Section 35A. But why wait for a conviction to use Section 35A when you can dispense with the need for any conviction by using Section 33AA?

There is one indication of the anticipated process. The bill renders Section 39 of the ASIO Act inapplicable to the new revocation provisions. Section 39 precludes a Commonwealth agency from taking permanent action on the basis of a preliminary communication from ASIO. Under Section 39, the government agency relying on ASIO’s information has to wait for a proper ASIO security assessment.

The government has removed this protection for revocation. The proposed requirements for revocation are lower than required for refusal of a visa.

Revocation for service in a declared terrorist organisation

Leading up to the bill, there was talk – from various government ministers – of “modernising” Section 35 of the Citizenship Act. Previously, the section provided for revocation of the citizenship of a dual national who:

… serves in the armed forces of a country at war with Australia.

This phrase has been retained, but has been joined by:

… or fights for, or is in the service of, a declared terrorist organisation.

Using the “declared terrorist organisation” wording differentiates this bill from similar reforms overseas, notably in Canada. The equivalent Canadian provision, which was introduced last year, drew on international humanitarian law. It referenced concepts from that body of law, including “armed conflict” and “organised armed group”.

By refraining from using these terms, the Australian bill has side-stepped some complex and contentious issues under international humanitarian law. But the formulation “in the service of a declared terrorist organisation” would seem to be broader because there is no indication as to how “service” is defined or limited.

In the lead-up to the bill’s release, members of both the government and the opposition voiced concerns over citizenship stripping by ministerial determination. The approach taken by the bill – the determination by an opaque bureaucratic process – does not address these concerns.

The authors do not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article. They also have no relevant affiliations.