The government-appointed Citizenship Loss Board will consider whether to strip the citizenship of dual nationals who have engaged in terrorism-related conduct or who have been found to be fighting for a declared terrorist organisation overseas.
A number of countries, including Britain and New Zealand, have made similar moves to strip citizenship from people found to have fought for, supported or joined militant groups.
Governments argue it’s in response to the growing threat posed by groups such as the self-proclaimed Islamic State.
Last year, the government enacted amendments to the Australian Citizenship Act 2007 to address the issue.
One of those was the ability to strip citizenship from dual nationals convicted – or suspected – of terror offences.
To implement that, the government has now created the Citizenship Loss Board, as explained by Immigration Minister Peter Dutton.
“The Citizenship Loss Board started its work and it first met in February of this year and they will consider individual cases that have been worked up through ASIO, ASIS, the Department of Defence, my Department of Immigration and Border Protection, Justice, obviously the Attorney-General, Prime Minister and Cabinet, they’re all involved in the process here. So it is a very significant process and it can result in people losing their Australian citizenship. “
A Department of Immigration spokeswoman says the board has not yet met to consider any potential candidates for citizenship loss but is expected to do so in coming months.
The board will comprise officials from various government agencies, including the Department of Foreign Affairs and Trade, the Attorney-General’s Department and ASIO.
Peter Dutton says Australians that join militant groups overseas will be dealt with seriously.
“If people have dual citizenship, then they can go back to their country of birth or their country of first citizenship, but Australia’s been very clear, as has been the UK and other countries. We don’t want to tolerate this sort of radicalisation and the Government’s been very clear: our first priority to all Australians is to keep our borders secure, to keep our communities safe and we face an unprecedented threat from terrorism and we need to stare that threat down and we have in place some very tough laws. If people are involved in terrorist activities then they can expect serious consequences.”
Constitutional law expert at the University of Sydney, George Williams, questions the need to strip citizenship from dual nationals.
“I think we clearly do need strong criminal sanctions for people involved in terrorism or fighting in hostile actions overseas. We’ve already got those and in fact a person can be sentenced to life imprisonment for engaging in those activities, so with such a harsh penalty, it’s not clear to me what additional sanction is needed, in terms of citizenship.”
He says the establishment of the Citizenship Loss Board raises questions.
“Questions about whether it’s effective, whether it will actually protect the community. Also whether it will in fact cause grave problems for other countries. Are we simply shifting problems with terrorism to countries less able to deal with those issues? And within Australia I think it’s very concerning that we’re departing from basic rule-of-law principles. Instead of people having a fair hearing before an independent judge, we’ve got government officials making decisions that most affect their most basic rights in circumstances where there’s no guarantee the person will have a fair hearing or a hearing even at all.”
Similar views have been expressed by the federal opposition.
Labor’s legal affairs spokesman, Mark Dreyfus, has told Sky News Labor has been pushing for greater accountability.
“We’ll be getting a briefing in due course in relation to this Board when it is set up but it is under the legislation that was passed through the parliament last year. It’s important that it can’t, of course, be secret in its entirety. The decisions are going to have to be public and there will be a right of review. And that was one of the things that we fought for when the legislation was going through the parliament last year.”
A Department of Immigration and Border Protection spokeswoman says there are a variety of oversight provisions for the loss of citizenship under the Australian Citizenship Act 2007.
She says they include a judicial review that will be made available to people who have been stripped of their citizenship.
But Professor Williams argues that isn’t adequate.
“It’s not clear that that will give someone a proper hearing. The grounds of review won’t enable someone to raise all of the questions they might want to raise about the decision. It may be impossible for the person to even get all the information that has led to the decision being made against them. They won’t have something to test, to contradict, to actually have proper hearing in the tribunal. What it means is that the system is really stacked up against anyone who has their citizenship lost in this way. And indeed you may even have decisions wrongly made or unfairly made and the person affected may not be in any position to challenge that.”
The department says the Board won’t make decisions on individual cases, but rather advise the Secretary of the Department of Immigration who will then advise the minister.
Under the amendments, the immigration minister has discretionary powers and will ultimately make the decision.
George Williams says the process signals a fundamental change in Australian citizenship.
“We’re moving to a system where citizenship is contingent upon government decisions, where unnamed officials can make recommendations and findings against a person without that person even being shown the case against them and it can lead to a loss of citizenship and a devastating impact upon that person’s life. These are the sorts of things that shouldn’t happen in a democracy and if there is to be consequences for a person’s citizenship, it should be through a fair and transparent process.”
Other provisions require the immigration minister to report to federal parliament every six months detailing the number of times a notice for loss or revocation of citizenship has been issued.
The minister will also be required to notify the Parliamentary Joint Committee on Intelligence and Security on issuing a notice for the loss of citizenship under the Act.
That committee will review the operation and effectiveness of the citizenship loss provisions and report to parliament by December the 1st 2019.