Can Australian citizenship be revoked?

Proposed laws to strip Australian citizenship from those who fight with terrorists face considerable legal hurdles.

Prime Minister Tony Abbott has controversially proposed revoking the citizenship of dual nationals and Australian citizens where it can be demonstrated that they have fought alongside terrorists or engaged in terrorist activity. Regardless of its merits, such a proposal faces considerable legal hurdles owing to the limitation of power that the Commonwealth has.

The following is a summary of the Australian government’s legal options in relation to citizenship:

Citizenship can be revoked in some circumstances

Under the Citizenship Act 2007, the Minister may, by writing, revoke a person’s Australian citizenship if the citizenship was granted via migration-related fraud or other fraud (Section 34) but cannot render that person stateless. Hence, the revocation of dual nationals is possible, but not sole Australian citizens whether by birth or immigration.

Additionally, Section 35 states:

(1) A person ceases to be an Australian citizen if the person:
(a) is a national or citizen of a foreign country; and
(b) serves in the armed forces of a country at war with Australia.
(2) The person ceases to be an Australian citizen at the time the person commences to so serve.
Section 35, Citizenship Act 2007

The powers conferred in Section 35 have existed since 1948 but have never been used.

The constitution grants the Commonwealth power over citizenship

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xix.) Naturalisation and aliens
(xxvi.) The people of any race, for whom it is deemed necessary to make special laws
(xxvii.) Immigration and emigration
Section 51, Constitution of Australia

“Aliens” means foreigners in today’s parlance. When Australia was federated in 1901, British people were not considered aliens. This has been confirmed by the High Court.

In the cases of Taylor (2001) and Te and Dang (2002), three judges maintained that while at the time of federation Britain was not a “foreign power” and British subjects were not “aliens” under Australian constitutional law, this consideration has not necessarily survived Australia’s emergence as an independent nation. Te and Dang were migrant children from Vietnam and Cambodia who were granted asylum but never attained citizenship. Owing to their criminal records, the government wanted them deported and the High Court agreed on the basis that they came to Australia as aliens. Taylor was a citizen of the United Kingdom who like Te and Dang came to Australia as a child, did not become an Australian citizen and was convicted of serious offences. In his case, the court ruled that Taylor could not be deported. In 1987, changes made to citizenship laws established that Britons were thereafter considered foreigners but those who’d arrived prior weren’t and attained a certain “non-alien non-citizen” status.

Regardless of these considerations, in the case of Hwang (2005), Justice McHugh stated that Parliament cannot:

…exclude from citizenship, those persons who are undoubtedly among “the people of the Commonwealth”.
Hwang v Commonwealth [2005] HCA 66

The meaning of “the people of the Commonwealth” is yet to be clarified but one could safely assume that it includes all those presently regarded as citizens of Australia (at a minimum).

Citizens cannot be imprisoned without judicial oversight

Australian citizens have legal protection against the Commonwealth’s broad powers over immigration and imprisonment, whilst aliens do not. In the case of Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992), the High Court ruled that an Australian citizen cannot be involuntarily detained by the government unless a court has found them guilty of a criminal offence. This is not the case for aliens, where the case of Plaintiff S4-2014 v Minister for Immigration and Border Protection (2014) found that aliens may be detained for the purposes of deportation or processing and investigating a visa application, even if they have not committed any crime.

Citizens cannot be excluded from entering and residing in Australia

The High Court has also found that the Commonwealth cannot prevent citizens from entering and residing in Australia. This is called the “right of abode”.

One of the earliest cases was that of James Minahan who was born in Victoria but grew up in China and spoke no English. When he returned to Australia in 1908, authorities attempted to have him deported on the grounds that he was not a British subject as per the provisions of the Immigration Restriction Act 1901 which sought to prevent Asians from emigrating to Australia under the “White Australia Policy“. Minahan was born in Victoria and argued that he was merely returning home, even if he could not speak English. He had a Victorian birth certificate. In Potter vs. Minahan (1908), the High Court dismissed the Commonwealth’s appeal to have Minahan expelled and confirmed his right to enter and live in Australia.

Before 1949, there was no separate legal category of Australian citizenship. After that time, Australian citizenship was recognised not withstanding aforementioned qualifications for non-alien non-citizen British. Another important case confirming the “right of abode” is Air Calédonie International v Commonwealth (1988) which found that migrations processing fees for Australian citizens re-entering Australia were constitutionally invalid and that

The right of the Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or ‘clearance’ from the Executive.
Air Calédonie International v Commonwealth (1988)

More recent cases have further confirmed the “right of abode” for citizens.

Doctrine of the Separation of Powers

Like most other democratic nations established in the Westminster tradition, the Australian constitution provides for a separation between the executive, legislature and judiciary (although the Australian system has some minor overlap). Under the Australian system, judicial power is vested in a court as described under Chapter III of the constitution and no other body can exercise judicial power. This was emphatically asserted in the case of New South Wales v Commonwealth (1915), otherwise known as the “wheat case”.

Further precedents have been set. In the case of Leeth v. Commonwealth (1992), the High Court held that the legislature may not interfere with the judicial process, particularly with the requirements of natural justice. Another important case is that of Polyukhovich v. Commonwealth (1991) where the High Court decided that the constitutional separation of judicial power prevented the Commonwealth Parliament from enacting a bill that punished specified person or group because it would amount to an invalid usurpation of judicial power by the parliament.

In Australia, the separation between the legislature or executive and the judiciary is clear.

The government cannot leave a person stateless

Australia has signed and ratified the United Nations Convention on the Reduction of Statelessness which, amongst other clauses, means that signatory nations cannot render a person stateless. Stateless persons may take the nationality of the place of their birth or of the place where they were found (in the case of a foundling), otherwise they may take the nationality of one of their parents (in each case possibly subject to a qualifying period of residence in that country). In essence, this principle means that an Australian citizen born to Australian parents cannot be denied Australian citizenship.

What does it all mean?

Whilst it may be possible to strip dual nationals of their Australian citizenship, it appears that such an option does not exist for sole Australian citizens. Alternative proposals to deny such persons entry into Australia or to imprison them at the whim of the government would also be illegal.

Centuries of convention and law have evolved to protect the liberties of ordinary people against the tyranny of the state. Such fundamental democratic concepts, including the “separation of powers” must be protected irrespective of contemporary concerns about terrorism, religious fundamentalism and extremism.

The security of the nation is a government’s first priority and laws must be in place that protect freedom of speech, democracy and liberty whilst ensuring the safety of the citizenry. This can be a challenging proposition in our contemporary world. Very careful consideration must be given in striking the correct balance between liberty and security. There is no easy answer.

Current proposals

The government has announced that it intends to amend the Citizenship Act 2007 so that any dual citizen who is “convicted of a specific terrorism related offence” or engages in “specified terrorist related conduct” would cease to be Australian. The changes would be made to the “self-executing” parts of the Act so that there is no ministerial intervention and therefore no conflict with the separation of powers doctrine. More importantly, revocation of citizenship would be subject to judicial review which reduces the chance that legislation will be challenged in the High Court. Lawyers are divided on the matter.

In relation to sole Australian citizens, the Prime Minister told the media:

What do we do about the 50 per cent or so of those Australians who are currently known to be fighting overseas with terrorist armies who are not dual citizens? This is one of those issues that will be considered by the Ruddock-Fierravanti-Wells consultation process now taking place and I would expect that in the months to come, the Government will have further legislation in this area.
Prime Minister Tony Abbott, 23 June 2015

Comments

One response to “Can Australian citizenship be revoked?”

On 25 June 2015, Philip Heiner wrote:

Recent public discussion on citizenship restricts to how aliens or children of aliens may acquire it, and whether government should have power to cease it on a discretionary decision. Less public discussion is on what citizenship really means in rights and obligations when not defined by Constitution.

The more serious problem overlooked for over 60 years is citizenship at birth: the Australian-born. Constitution grants power to Australian Parliament to make laws on naturalization and aliens, and immigration and emigration. A void exists for Parliament to legislate on citizenship at birth. Nowhere in the Constitution is the power to make law defining a natural-born Australian citizen. This affects every Australian by birth in Australia or to an Australian parent.

Our Australian citizenship relies on faith in government to overlook the vulnerability. The Constitution does not prevent a future government deciding citizenship at birth is not valid and to call a referendum to make amends. The conundrum is the Constitution does not assure the Australian-born a vote. It is lawful and almost seems reasonable to deny a vote to someone holding an invalid citizenship. The fate of the Australian-born may rest in a decision made only by naturalized Australians: not born in Australia and not to an Australian parent. Notably the most recently elected PMs are naturalized.

Before 1948, the UK Parliament held power to define nationality of a naturally-born British subject in Australia. The Constitution does not duplicate an equivalent power and none has been provided by amendment. A priority of government should be to address this vulnerability where changing demographics adds to the risk. Protection of the interests of the Australian-born relies on the conduct of all future governments. A constitutional change is preferred.

Put to the test, the Australian-born may be as vulnerable as the non-citizen born in a detention centre.