AustLII Home | Databases | WorldLII | Search | Feedback

University of New South Wales Law Journal Student Series

You are here:  AustLII >> Databases >> University of New South Wales Law Journal Student Series >> 2016 >> [2016] UNSWLawJlStuS 6

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Kayis, Deniz --- "Citizenship and Terrorism: A Critical Analysis of the 2015 Australian Citizenship Act Amendments" [2016] UNSWLawJlStuS 6; (2016) UNSWLJ Student Series No 16-06


CITIZENSHIP AND TERRORISM: A CRITICAL ANALYSIS OF THE 2015 AUSTRALIAN CITIZENSHIP ACT AMENDMENTS

DENIZ KAYIS

CITIZENSHIP AND TERRORISM: A CRITICAL ANALYSIS OF THE 2015 AUSTRALIAN CITIZENSHIP ACT AMENDMENTS

DENIZ KAYIS *
I INTRODUCTION

Since 9/11, Australian legislation has been significantly amended to address the threat of terrorism. There is substantial literature on how security responses to terror threats have affected citizens’ rights and freedoms.[1] However, the concept of citizenship itself is becoming increasingly securitised and used as a government tool to counter terror.[2] Indeed, Kim Rygiel has stated that ‘the war on terror is being fought to a large extent through citizenship policies and practices aimed at securing identity’.[3] In line with this, on the last sitting day of 2015, Australia’s Federal Parliament passed the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) (‘Citizenship Bill’). This Bill added avenues for terror-related cessation of citizenship to the Citizenship Act 2007 (Cth) (‘Citizenship Act’).[4] There has been considerable debate over the appropriateness and effectiveness of these provisions.[5] Yet, Australia is not the only country to adopt such an approach. This raises the question of why states are pursuing citizenship cessation to deal with terror.

To this end, the paper is structured in three parts. The first section outlines the relevant provisions of the Citizenship Bill and historical connection between crime and citizenship. The second section examines the justifications adopted by the Australian government to buttress citizenship revocation laws. The final section assesses the implications of the Citizenship Bill for Australia’s compliance with its international human rights and security obligations.

This paper does not purport to address other legal or constitutional concerns with the Citizenship Bill, nor the issue of disenfranchisement, of which sophisticated analyses can be found elsewhere.[6] This paper also does not seek to engage with the debate over the definition of citizenship; whether it is exogenous and constant[7] or an inter-subjective structure;[8] an inclusive unifier or an exclusionary ‘coercive apparatus’;[9] a legal status or more expansive ‘status of equality between members of a political community’.[10] The focus of this paper is on the legal application of citizenship as a counter-terror tool, justifications for its use, and the international human rights and security implications for Australia.

II DEVELOPMENTS: CITIZENSHIP, TERROR AND NATIONAL SECURITY

The events of 9/11 instilled a heightened sense of insecurity in the Western world. The recent growth of groups such as Islamic State have only made these fears more pronounced.[11] In September 2014, Australia’s Terrorism Public Alert Level was upgraded to ‘High’, reflecting the Australian Security Intelligence Organisation’s (ASIO) position that terrorism was the most ‘direct and immediate threat to our nation’.[12]

A particular concern in relation to terrorism is the prevalence of foreign fighters.[13] It is estimated that in May 2015, more than 25,000 foreign fighters from one hundred countries were involved with Al-Qaeda and Islamic State (‘ISIS’), either as direct combatants or indirect supporters.[14] As at 2 July 2015, there were at least 120 Australians fighting with terrorist groups and 155 supporting them through funding or recruitment.[15]

The concern relating to foreign fighters is two-fold. First, on a practical level, foreign fighters strengthen terrorist organisations.[16] Second, foreign fighters who move to other states or return to their home countries pose a security threat, whether by pursuing further terror attacks or pursuing radicalisation and recruitment.[17] This has been referred to as a ‘bleed out’ effect.[18] The formation of Al-Qaeda provides a good example of this effect. Foreign fighters involved in the 1970-80s Afghan-Soviet conflict later formed the core of Al-Qaeda.[19] Laws such as the Citizenship Bill have been implemented in response to the fear that this same ‘bleed out’ is occurring again, particularly in relation to foreign fighters in Syria and Iraq.[20] Citing national security and the threat of terrorism, states have either revived once-forsaken laws or introduced new ones.

A Avenues for citizenship revocation under the Citizenship Act

The 2015 amendments introduced three new avenues by which a dual citizen can have their Australian citizenship revoked in the terrorism context. The first is if they engage in conduct which shows a ‘repudiation’ of their allegiance to Australia, under s 33AA of the Citizenship Act.[21] In order for this to occur, a person of at least 14 years of age must have engaged in any of the conduct identified in s 33AA(2).[22] This includes, but is not limited to, engaging in a terrorist act and recruiting for or financing a terrorist organisation.[23] This conduct must have been engaged in with the parallel intentions to advance ‘a political, religious or ideological cause’ and to coerce or intimidate a government or the public.[24] This intention can be deemed by virtue of membership of, or acting in cooperation with, a terrorist organisation.[25] The moment the person engages in the relevant conduct with the relevant intention, their citizenship is considered to have ceased.[26] Notably, this provision applies only to persons who either engaged in the conduct while overseas, or left Australia after committing the terror-related conduct and before being tried.[27]

The second avenue of citizenship loss, under s 35 of the Citizenship Act, arise if an individual fights for, or is in the service of, a declared terrorist organisation.[28] A declared terrorist organisation is one which the Minister of Immigration and Border Protection (‘Minister’) determines on reasonable grounds is directly or indirectly involved in perpetrating or advocating terrorist acts, such that acting with that organisation would be inconsistent with one’s allegiance to Australia.[29] Again, this provision results in an automatic revocation of citizenship where the person is over 14 years old and the conduct is engaged in overseas.[30] While there is no intention requirement as in s 33AA, exceptions are provided for where the conduct was unintentional, under duress, or during the provision of ‘neutral and independent’ humanitarian aid.[31]

The third way in which a dual citizen can be denationalised is under s 35A of the Citizenship Act. This is if they are convicted of a specified terror-related crime and sentenced to at least 6 years imprisonment.[32] The Minister can then make a written determination as to whether to revoke citizenship. In doing so, the Minister must consider a public interest test and whether the conduct demonstrated a ‘repudiation of allegiance’.[33] Citizenship cessation under this section takes effect once the Minister makes the determination.[34]

The notice provisions are relatively similar for all three methods of citizenship cessation. The Minister is required to make reasonable attempts to give notice of the cessation of one’s citizenship ‘as soon as practicable’, unless it would prejudice security or intelligence operations.[35] This notice must set out the affected person’s rights of review and include a basic description of the conduct which has resulted in their loss of citizenship,[36] or the reasons why the Minister determined to revoke citizenship.[37] The rules of natural justice are limited to a decision by the Minister to make, or not make, a determination on the revocation of an individual’s citizenship.[38] Some notice provisions differ, however. For example, ss 33AA and 35 give the Minister a non-compellable discretion to either rescind a notice or exempt a person from its application.[39] For the third avenue of citizenship revocation, there is no such exemption power. In its place is a requirement that the Minister revoke a determination to end someone’s citizenship if that person’s conviction is overturned in a non-appealable decision.[40]

Denationalising citizens for terror-related activity is not limited to the Australian context. Craig Forcese noted that as of 2014, there were twenty-two states in Europe which could revoke citizenship for terror-related behaviour or behaviour ‘seriously prejudicial’ to national interest.[41] Canada also has introduced similar laws.[42]

B The link between crime and citizenship

Although revoking citizenship due to terrorist conduct is a recent development in the 21st Century Western world, the concept of stripping citizenship for one’s criminal conduct is not new. In fact, it is somewhat archaic. As put by Audrey Macklin, historians view citizenship revocation as recrudescent, rather than emergent.[43]

Citizenship revocation was widely practiced in the ancient world, such as in Ancient Greece and Rome, and was most often accompanied by exile.[44] Ancient Greece and Ancient Rome exiled citizens whose conduct was deemed a threat to dominant societal values or ideologies.[45] Indeed, the word ‘deportation’ comes from the Roman practice of exile: deportio. This continued through to the Common Era. By the 18th Century, criminals were commonly dealt with by way of banishment in Europe.[46] A relevant instance of this is the English transportation of convicts to penal colonies; namely, Australia itself. However, these convicts were not stripped of their status as a subject of the Crown.

Into the 20th Century, the practice of deportation started to decrease.[47] A driver of this shift was likely the rise of nationalism. In order to justify state action such as war, it was useful to have a strong sense of national identity.[48] An integral element of national identity is legal citizenship. Indeed, the strengthening of national identities in the 18th to mid-19th Centuries resulted in a correlative strengthening in the significance of citizenship, making it a much more solid, and less revocable, concept.[49] A second by-product of nationalism’s rise was that other states were now less willing to accept the ex-citizens of their neighbours.[50] This shift in position is reflected in the work of critical thinkers like Sir John Fischer-Williams, an international law theorist born in the late 19th Century,[51] the Dutch international lawyer Cornelius van Bynkershoek,[52] and even Voltaire.[53] Each of these writers argued that the banishment of criminals was corrosive of international comity.[54] It was likened to throwing ‘slops’ out of one’s window. While acceptable ‘out of the window of a settler’s hut on a prairie; in a town such practice is inadmissible.’[55]

Another reason for the demise of banishment was the advent of domestic prisons and adoption of theories concerning criminal rehabilitation and reform.[56] Banishment became limited to naturalised citizens, and for generally political reasons. This was especially evident during the World Wars.

In World War One England, the Conservative political sphere called to strip the citizenship of naturalised Germans. Conservative MP James Mason claimed that a naturalised German was riskier than a foreign German, because citizenship would ‘facilitate the objects he had in view.’[57] Interestingly, this is the same view expressed by some contemporary supporters of citizenship stripping provisions; that ‘citizenship clearly facilitates’ domestic terror attacks.[58] In response, new laws were implemented in 1918 which expanded avenues of citizenship loss for naturalised British citizens.[59]

Denationalisation and deportation of naturalised citizens from an enemy state were tools also employed during World War Two. An example is the deportation of Japanese Canadians.[60] However, as the 20th Century progressed, deportation was increasingly understood as action either taken by authoritarian and undemocratic regimes, or in times of war.[61] Even measures taken during war were increasingly questioned. In 1967, the United States Supreme Court case Afroyim v Rusk rejected the US government’s attempt to strip a Polish-American’s citizenship. The Court expressly referred to cases of arbitrary revocation of citizenship as ‘lawless precedents created in the delirium of war’.[62]

III JUSTIFICATIONS: WHY COUNTRIES STRIP CITIZENSHIP

In implementing citizenship revocation laws, it appears most governments have adopted a ‘civic’ model, which asserts the centrality of allegiance to nationality and considers revocation of citizenship the appropriate punishment for breach of this allegiance.[63] Indeed, Shai Lavi emphasises that the only way to justify citizenship revocation is as a punishment, not an administrative or executive action.[64]

While the focus on allegiance has been explicit in the Australian context,[65] the Citizenship Act amendments have not been characterised as punishments. Rather, they are framed as administrative, preventative processes. This is likely because doing otherwise would concede that the executive was exercising the judicial power to impose penalties for criminal conduct. For this reason, the Australian government has emphasised that the Citizenship Act does not aim to punish, but rather aims to reflect citizens’ allegiance, protect Australian communities, and deter terror attacks.[66]

These three justifications are examined below, in order to question whether the legislation enacted is targeted to fulfilling the posited justifications. This analysis will be revisited once empirical data on the application of these new citizenship revocation laws is available. It should also be noted that these conceptualisations of citizenship revocation are not mutually exclusive, but overlap in application.

A Reflecting the individual’s allegiance

The social charter, or contract, is one of the primary concepts bolstering a model of revocable citizenship. The social charter involves reciprocal rights and duties on behalf of both state and individual. The idea of reciprocal obligations as a central element of citizenship is not new to the Australian context. High Court Chief Justice Gleeson’s reasoning in Roach v Electoral Commissioner [2007] HCA 43 relied on such obligations. His Honour’s judgment considered the reference to reciprocity of rights and obligations in the Australian Constitution, and noted that this corollary relationship between civic responsibilities and a citizen’s rights and freedoms ‘has been influential in contemporary legal explanation of exclusions from the franchise.’[67]

Indeed, this is one of the key legal explanations adopted by the Australian government to justify its changes to the Citizenship Act, stating:

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 the bond and repudiated their allegiance to Australia.[68]

Historically, breach of the social charter has been the most common liberal justification of the state’s right to strip citizenship.[69] The idea was strongly endorsed by Immanuel Kant, who expressed the opinion that where a subject engages in conduct rendering them ‘prejudicial to the state’, they should be banished.[70] Kant was not the first to espouse this position. Thomas Hobbes, John Locke and Jean-Jacques Rousseau each discussed the social contract and consequences for its breach. Vattel, a Swiss legal expert whose theories played a significant role in the development of modern international law, also emphasised that the reciprocity of the social contract gave both state and individual an equal and consensual right to dispossess the other.[71] Therefore, just as a person can renounce their citizenship, a state can renounce its citizen.[72]

This model of citizenship as contingent on compliance with the social contract has been adapted for contemporary security concerns, where a citizen’s primary obligation is allegiance to their country.[73] There are two key theorists who support this position: Emanuel Gross and Shai Lavi. Emanuel Gross claims that citizenship revocation should be a sentencing option open to the courts if someone is convicted of terror-related conduct.[74] Notably, Gross’ support of citizenship revocation is grounded in an initial criminal conviction taking place. This stems from his acknowledgement of the severity of citizenship loss, noting that it is ‘more primitive than torture’ and constitutes the ‘total destruction’ of the individual’s political existence.[75] This requirement for criminal conviction is only present in one of the three avenues of citizenship loss under the Australian Citizenship Act.

Gross calls his approach to citizenship ‘defensive democracy’.[76] Gross’ argument is that citizenship revocation is a legitimate and necessary device to preserve national security in the face of modern terrorism.[77] In Gross’ conceptualisation, loyalty to the state through the ‘social charter between the state and citizen’ is central.[78] By engaging in conduct contrary to that allegiance, such as domestic terrorist attacks, the individual breaches the social contract.[79] This entitles the state to revoke their citizenship, in what is alleged to be a ‘response to [their] intent’[80] or a ‘hidden message of renunciation’.[81] Similarly, Lavi relies on the idea of a social charter between government and citizen to justify citizenship loss, although he refers to it as a ‘constitutional bond’.[82] While these justifications were posited in the context of United States and Israeli developments on citizenship law, they are also relevant to the Australian justifications of citizenship revocation, which focus on how terror-related conduct shows a ‘lack of allegiance’ to the state.[83]

An issue with this characterisation of the Citizenship Act is that not all of the conduct specified illustrates a repudiation of allegiance to Australia. An example noted by the Law Council of Australia was if a person engaged in a terrorist attack against a country which was at war with Australia.[84] This does not show a repudiation of Australian allegiance. If anything, it could be a misguided attempt to assist Australian interests.[85]

Another misguided attempt to assist Australian interests could be assisting a military group fight against an organisation like ISIS. The Kurdistan Workers Party (‘PKK’) is listed as a terrorist organisation by the Australian government.[86] PKK is aligned with the Syrian Kurdish Democratic Unity Party (PYD), which has the military arm Yekîneyên Parastina Gel (YPG).[87] Notably, YPG is involved in the conflict in Syria against ISIS. For this reason, public sentiment is relatively sympathetic towards Australians foreign fighters with the YPG. Many do not view this type of foreign fighting as a repudiation of allegiance to Australia,[88] despite the fact that YPG may be affiliated with a listed terrorist organisation. This may have been impliedly recognised by Australian authorities. Former Northern Territory Labor president Matthew Gardiner was not charged with foreign incursion offences when he returned to Australia after allegedly fighting with Kurdish forces against ISIS in 2015.[89] Similarly, in February 2016, it was reported that the Attorney-General had not consented to charge Australian Jamie Reece Williams for attempting to travel to Iraq to join YPG in the fight against ISIS.[90]

Under s 33AA of the current Citizenship Act, someone who engaged in a terrorist attack with YPG against ISIS forces[91] with the intentions of advancing an anti-extremist ideological cause and intimidating ISIS supporters,[92] could lose their Australian citizenship. This is especially so where the intention could be deemed by virtue of that person acting with YPG, in cooperation with PKK, a declared terrorist organisation.[93] A similar situation could occur under s 35 if PKK were to become more directly involved with YPG in Syria. Then, a dual citizen fighting for or in the service of the groups could face automatic cessation of their Australian citizenship.[94] Yet, if one were to strictly apply the allegiance justification, aiding a group to fight against ISIS would arguably not be inconsistent with Australia’s short-term interests.

B Removing threats to national security

Another justification of citizenship revocation focuses on the need to protect national security by physically removing internal threats. John Stuart Mill, one of the most prominent philosophers on the issue of citizenship, espoused this view.[95] Mill asserted that each citizen can do as they wish, so long as no harm is caused to others.[96] If someone does pose a harm to others, the removal of their rights and presence is justified in the interest of public safety.[97] Indeed, this was one of the reasons behind the transportation of convicts to colonies like Australia, from where they would no longer pose a threat to the morality of English society itself.[98]

In a contemporary context, ideas of ‘public safety’ have shifted into ‘national security’. The focus on national security is very apparent in Australian citizenship law developments. The Revised Explanatory Memorandum expressly states that the amendments aim to protect national security.[99] Yet, laws like the Citizenship Act are not necessarily as effective as they purport to be. It is unlikely that legislative provisions will be able to eradicate domestic terror threats by physically displacing them. Preventing terrorism is not as simple as implementing quarantine controls, where merely preventing entry of the dangerous matter is sufficient.

If the aim is to disable citizen terrorists from planning attacks against Australia, incarceration would be more effective. Stranding the person in a conflict zone leaves them free to continue engaging in or funding terrorist activity. This is not only problematic for the general fight against terrorist group incursions, but also leaves stranded individuals with the opportunity to commence or continue focusing their efforts on Australia specifically. Admittedly, it would be considerably more difficult to plan an attack on Australian soil when overseas. However, it would not be impossible. This is especially pertinent when taking into account that terrorism is not limited to traditional warfare, but can also come in the form of cyberterrorism.[100] Further, a stranded individual would be able to continue attempting to radicalise Australian citizens. As with attacks, radicalisation is not limited to in-person contact. Much of ISIS’s recruitment methods are online.[101]

This is not mere conjecture; it is a development which has occurred before. As mentioned earlier, thousands of people travelled to Afghanistan to fight the Soviet occupation in the 1970-80s. At the end of the conflict, most of these foreign fighters were blocked from returning to their home countries.[102] The most notable case of this is Osama bin-Laden, who was prevented from returning home to Saudi Arabia after the conflict in Afghanistan.[103] These fighters were previously considered ‘mere political nuisances’.[104] After the conflict, equipped with CIA training and combative experience, they posed a more substantial threat to national security. Leaders likely hoped that by abandoning their radical citizens, they could slow domestic radicalisation or prevent domestic attacks; an aim expressed by the Australian government.[105] However, refusing re-entry to the foreign fighters did not solve the problem. Instead, these individuals became professional international jihadists.[106] They fought in the Algerian and Bosnian civil wars. They followed Osama bin Laden to Sudan and or Ali Abdullah Saleh to Yemen. Ultimately, they formed Al-Qaeda, from which emerged ISIS.[107]

Clearly, foreign fighters do not cease to pose a threat when they are excluded from a country’s borders. Adopting a strategy which makes such an assumption can result in ‘greater threats to Australian security’ than if the foreign fighter had been allowed back into their country, prosecuted, and subject to ASIO monitoring.[108] Sometimes, it can be useful to keep your friends close, and your enemies closer.[109]

In addition, the justification presumes that national security threats for Australia can be quashed by action which primarily focuses on who is on Australian soil. This approach fails to consider the global nature of terrorism. Australia’s domestic security is affected by more than what occurs within its borders. Australia’s security is also impacted by any overseas terrorist conduct engaged in by its citizens (or recent ex-citizens). This is especially pertinent in relation to how that conduct affects the safety of Australia’s allies, and Australia’s relations with those allies. This is implicitly recognised in the Commonwealth Government’s National Security Strategy, which notes the importance of communicating how Australia is tackling security concerns to our ‘friends and allies abroad’.[110]

C Preventing domestic terror

The Australian government has emphasised the preventative purpose of citizenship revocation. The Revised Explanatory Memorandum states that the amendments are an appropriate way to ‘reduce the possibility of a person engaging in acts or further acts that harm Australians or Australian interests’[111] and ‘may also have a deterrent effect’.[112] This focus on prevention is also apparent in other Australian counter-terror measures, with many offences criminalising the formative stages of terror-related acts.[113] Courts have acknowledged that these provisions are ‘designed to bite early’.[114]

Yet, there are some weaknesses in the deterrence argument, both practical and logical. The inquiry run by the Parliamentary Joint Committee on Intelligence and Security (‘PJCIS’) into the initially proposed amendments saw a significant number of submissions sceptical as to whether the threat of citizenship revocation would actually deter terror-related conduct.[115] From a practical perspective, someone who is not deterred by the prospect of suicide bombing would not be deterred by the prospect of citizenship revocation. Indeed, increasing the disassociation perceived by citizens vulnerable to radicalisation would likely aid terrorist organisations’ recruitment strategies.[116] Terrorist organisations such as Islamic State attract members with the assurance of citizenship within their own ‘Islamic state’. It is a blatant element of their propaganda.[117] Further, any Australian foreign fighter is presumably on a watch list or has a cancelled Australian passport. They would not be able to return to Australia and commit a terror attack undetected even if they were still a citizen.[118]

The logic of the deterrence argument also sits at odds with the potential the legislation has to apply retrospectively.[119] Section 35 of the Citizenship Act can apply retrospectively in circumstances where the person was convicted for a specified crime and sentenced to at least 10 years imprisonment, no more than 10 years ago.[120] The problem here is that the conduct has already occurred. Say a person committed a terror-related act ten years ago. That act could not have been a knowing repudiation of allegiance and renunciation of citizenship, because ten years ago undertaking such conduct did not amount to such a renunciation. Hence, the person affected is not being deterred from committing that initial conduct, but rather, is being doubly punished for it.[121]

IV IMPLICATIONS: AUSTRALIA’S INTERNATIONAL OBLIGATIONS

Before being passed through both houses of Parliament, the proposed Citizenship Act amendments were altered in response to the 27 recommendations made by the PJCIS Advisory Report. Even though the current iteration of citizenship loss provisions is much improved, there are still areas of concern. As noted earlier, one of the focuses of this paper is the impact the Citizenship Bill’s provisions have on Australia’s compliance with its international obligations. These obligations are two-fold: the need to uphold international human rights and to cooperate in the collective fight against terrorism. The Citizenship Act amendments have negative implications for both. As terrorism’s global dimension becomes ever more apparent, the importance of these international obligations is amplified.

A International human rights

The three main areas of international human rights at risk are the right to nationality and to enter one’s country, the rights of children, and the prohibition on indefinite detention. Each is discussed in turn.

1 Rights to nationality and to enter one’s country

Article 15 of the United Nations Declaration of Human Rights establishes a right to nationality and to not be arbitrarily deprived of one’s nationality.[122] The idea is furthered by Art 12(4) of the International Covenant on Civil and Political Rights (‘ICCPR’), which Australia has ratified.[123] This Article states that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country.’ The corollary of this is an implied right of the person to remain in their own country.[124] Notably, the UN Human Rights Committee has adopted a broad interpretation of ‘own country’ which extends beyond formal nationality.[125] Hence, while a loss of citizenship under ss 33AA, 35(1) or 35A of the Citizenship Act would deprive a person of their legal citizenship, it would not necessarily mean that Australia ceases to be that person’s ‘own country’.[126] This is especially so where the person affected does not have any connection with their other country of citizenship.

Admittedly, there is an exception to this rule. The revocation must not be arbitrary. That is, it must be lawful, necessary for a legitimate objective which is consistent with the provisions and aims of the ICCPR, and proportionate to achieving this objective.[127] This is a very limited exception, with the UN Human Rights Committee expressly noting ‘there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.’[128] In the Statement of Compatibility with Human Rights, annexed to the Revised Explanatory Memoranda, it is asserted that the Citizenship Act amendments satisfy this exception.[129] The argument is that the citizenship revocation would be lawful, is for the purpose of protecting national security, and is proportionate to this aim in light of ‘existing and emerging threats’ to national security.[130] It also states that the objective of protecting national security is consistent with Article 12(3) of the ICCPR, which contemplates national security as a necessary limitation on the right to enter one’s country.[131]

However, contrary to what is suggested in the Statement of Compatibility, while Art 12(3) of the ICCPR expressly provides that national security may provide a legitimate limitation to the rights in Arts 12(1)-(2), it does not state that this exception applies to Art 12(4): the right to not be arbitrarily denied entry to one’s own country. Hence, it is possible that the new provisions do not satisfy the ICCPR stipulation of a legitimate objective. It has also been submitted that even if national security were found to be a legitimate purpose, the measures taken are likely not proportionate to achieving this purpose.[132]

2 Rights of the Child

The amendments also have implications for the rights of the child under international law. Where a child over fourteen years of age engages in disqualifying conduct, they could automatically lose their citizenship under ss 33AA(1) and 35(1) of the Citizenship Act,[133] although the Minister may choose to exempt them. This could also occur under s 35A of the Citizenship Act. If a 14 year old was convicted and sentenced to a minimum 6 year sentence for terror-related conduct, presumably it would be serious enough for the Minister to consider revoking their citizenship on that basis.

This clashes with Australia’s obligations under the Convention on the Rights of the Child (‘CRC’).[134] Some key provisions of the CRC stipulate that the ‘best interests of the child shall be a primary consideration’,[135] and that children have a right to nationality, identity and family.[136] Although somewhat mitigated by the inclusion of the ‘best interests of the child’ consideration in the public interest test,[137] there are still issues with the interplay between the legislative amendments and the rights of the child.

First, the revocation of a child’s citizenship is more likely to be arbitrary. The International Criminal Court has recognised that, for children associated with armed forces, the concept of informed consent cannot apply.[138] This is addressed to an extent in the Criminal Code, which requires a child to know their conduct is wrong in order to be found guilty.[139] This requirement is not transferred to the Citizenship Act. The Minister is required to consider the person’s age and best interest of the child if they decide to consider whether to exercise their power to exempt,[140] but the fact that a child might not have the requisite understanding of their conduct’s implications is otherwise not taken into account. Even if the legislation were amended to rectify this, it would not be practicable. Ascertaining the child’s understanding of their actions would require a discussion with the child at the very least. If they are overseas and fighting with or in the service of a terrorist organisation, this would be a somewhat difficult conversation to organise.

Additionally, there is a strong public interest in rehabilitation, particularly of children. The High Court has expressed the importance of the rehabilitation, as, if successful, it is ‘the most durable guarantor of community protections’.[141] The automatic citizenship revocation of children, which there is no guarantee the Minister will review, would directly bypass the rehabilitation option.

3 Indefinite detention

A final human rights concern is the potential for indefinite detention. The Australian Human Rights Commission has noted that under Article 9 of the ICCPR, detention becomes a breach of human rights when it is ‘not necessary and proportionate to achieving a legitimate objective, and is not subject to periodic review.’[142] The Department of Immigration and Border Security has stated it will guard against the risk of indefinite detention by acting ‘in accordance with its obligations under domestic and international law.’[143] However, this may not be possible in all circumstances.

A person whose citizenship has ceased while they are in Australia would automatically be issued an ex-citizen visa.[144] This would likely only happen in relation to s 35A revocations, as the other two avenues of citizenship loss only apply where the affected person is overseas.[145] Since s 35A revocations require criminal conviction, the ex-citizen visa would need to be cancelled under s 501(3A)(b) of the Migration Act 1958 (Cth).[146] Then, as an ‘unlawful non-citizen’, the person would be subject to mandatory immigration detention.[147]

This is where the potential for indefinite detention arises. If Australia cannot deport the ex-citizen, due to a real risk that they would face torture or the death penalty in the destination country, they could be indefinitely detained.[148] This could also occur where the person’s other country of citizenship refuses to receive them. This is not an uncommon phenomenon. As noted by 2010 paper from the Yale Centre for the Study of Globalisation, and acknowledged by Sarah Saldana, the director of United States Immigration and Customs Enforcement,[149] an obstacle faced by the United States when attempting to deport illegal immigrants is that countries such as China, India, Iran, Laos and Vietnam refuse to receive them back.[150]

B International security

Finally, the revocation of Australian citizenship due to terror-related conduct is likely to contravene Australia’s international security obligations. Australia is a signatory to numerous counter-terror conventions and treaties.[151] These impose obligations such as the prosecution or extradition of terrorists, establishment of jurisdiction over crimes committed by Australian nationals, and ensuring that terrorists do not enjoy impunity for their crimes.[152] Since 9/11, thirty-two United Nations Security Council Resolutions (‘UNSC Resolutions’) have added to these obligations. Where enacted under Ch VII of the United Nations Charter, these Resolutions are legally binding on member states. This is by virtue of Art 25 of the Charter, which requires member states ‘carry out and accept the decisions of the Security Council’.[153]

The Citizenship Act amendments disregard at least four elements of these UNSC Resolutions. These are the need to criminally prosecute terrorists, prevent international movement of terrorists, take actions in accordance with international human rights obligations, and work cooperatively with other states in tackling terrorism.

First, the Citizenship Bill’s citizenship revocation provisions do not address terrorism as a criminal matter. UNSC Resolution 1373 (2001)[154] was the first of the modern terror-related UNSC Resolutions. It was in reaction to the 9/11 attacks and requires the suppression of terrorist recruitment and acts, the prosecution of terrorists, and the prevention of international movement of terrorists. Acting under Ch VII of the UN Charter, it also decided that member states should ensure that any person participating in or supporting terrorist acts is ‘brought to justice’ by way of ‘criminal offences in domestic laws and regulations’. This was reaffirmed in the UNSC Resolution 2178 (2014), which also mandated that states establish ‘serious criminal offenses sufficient to provide the ability to prosecute and to penalize’.[155] The focus is evidently on punishing perpetrators of terrorist conduct by way of the criminal justice system, not administrative action. Indeed, even the Australian Government’s 2015 Counter-Terrorism Strategy states one of its three core principles is to deal with terrorist acts through the criminal law.[156] Yet, the Citizenship Bill does not address terrorism first and foremost as a criminal matter. By revoking an overseas citizen’s citizenship, it removes the possibility for the Australian government to extradite and prosecute that individual, as slight a possibility as that may be.

This relates to the second obligation at risk, which is preventing the international movement of terrorists. This obligation was established in Resolution 1373 (2001) and most recently reiterated in Resolutions 2170 (2014)[157] and 2178 (2014). If an individual engaged in terrorist conduct is deported or stranded outside Australia, it is not guaranteed that they will be prosecuted or subject to any law enforcement measures. Rather, it allows the cross-border movement of the individual, as well as potentially enabling them to continue fighting for a terrorist organisation. This does not interdict the terror risk. It simply displaces it to another jurisdiction and attempts to evade Australia’s international security obligation to prevent the international movement of terrorists.

Third is the requirement that, while taking counter-terror security measures, member states adhere to international human rights, humanitarian and refugee law. As discussed in the previous section, the relevant provisions of the Citizenship Act do likely breach Australia’s international human rights obligations. Hence, the provisions also likely contravene Resolutions such as 2178 (2014). This is concerning, because as UNSC Resolution 2178 (2014) notes, while adherence to human rights both complements and reinforces counter-terror measures, failure to do so ‘is one of the factors contributing to increased radicalization.’ This effect has also been noted by former UN Secretary-General Kofi Annan. Annan noted that laws which compromise human rights facilitate the terrorist’s objective by ‘provoking tension, hatred and mistrust of government among precisely those parts of the population where he [the terrorist] is more likely to find recruits.’[158]

Finally, UNSC Resolutions are implemented to ensure a coordinated and collective approach to terror threats. Resolutions 1566 (2004)[159] and 2178 (2014) oblige states to work cooperatively to fight terrorism, recognising that it affects ‘all regions and Member States’.[160] Evading responsibility for a citizen’s actions by denationalising them undermines and is contrary to the collective efforts of states to counter terrorist activity. This is because international cooperation is inherently reciprocal. No government nor its people would appreciate another country deporting ex-citizen terrorists to within their borders. By banishing a terrorist onto the global community, Australia is doing just that. It is making that terrorist another state’s security threat, rather than taking action to resolve the threat.

The citizenship revocation provisions’ potential contravention of UNSC Resolutions is even more problematic considering how the Australian government has in past relied on these Resolutions to validate enacting counter-terror laws.[161] Indeed, the Resolutions 1373 (2001) and 2178 (2014) discussed above have both been invoked by the Commonwealth government. In the High Court case of Thomas v Mowbray and Ors,[162] the Commonwealth defended the constitutional validity of interim control orders under Div 104 of the Criminal Code by invoking, among other things, UNSC Resolution 1373 (2001). Similarly, in the 2015 case Alqudsi v Commonwealth[163] in the New South Wales Supreme Court, the Commonwealth invoked Resolution 2178 (2014), alleging it enlivened the external affairs power and rendered s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) constitutionally valid.

Having relied on UNSC Resolutions in attempts to validate legislation in the past, it is damaging for the Australian government to now implement laws which disregard obligations under these Resolutions. As aptly stated by Professor Ben Saul from the University of Sydney:

‘A responsible government would not foist its terrorists onto other countries, but bring them home to face justice. This is not only the responsible thing to do from a national security perspective, but is also required of Australia by international law.’[164]

Supporters of Australian terror-related citizenship revocation have responded to these concerns by emphasising that any measure which keeps terror offshore is beneficial as it reduces domestic terror threats; it is ‘one less thing’ to deal with.[165] This is not a satisfactory answer. It is akin to the aforementioned throwing of ‘slops’ out of one’s window and onto your neighbour’s criticised by Sir John Fischer-Williams.[166] Further, by keeping dangerous individuals offshore, Australia could be directly violating at least Resolutions 1373, 1566, 2170 and 2178, as well as other multilateral treaties it is bound by.

V CONCLUSION

The ‘war on terror’ has now lasted for longer than both World Wars combined. As it continues, a growing number of security measures are implemented to counter terror risks, with citizenship playing an increasingly substantial role. This is exemplified by citizenship revocation laws such as in the Australian Citizenship Bill. This may not be a wholly new phenomenon, but it is a significant development in national security policy. Therefore, the focus of this paper has been to question the reasons for enacting laws which revoke citizenship, and critically assess their implications.

The justifications used to support the introduction of citizenship loss provisions in Australia have their flaws. Not all of the denationalising conduct shows a repudiation of allegiance. Nor will revoking every terrorist’s citizenship deter and prevent further radicalisation, recruitment, and attacks. This is not to say that there is no need for stringent measures ensuring the deterrence and prevention of terrorist conduct. Yet, if strong counter-terror measures are going to be implemented, their justifications should be equally strong from both logical and pragmatic perspectives. Equally, if governments are to effectively stave off domestic and international terrorist attacks, international laws and conventions should be respected. There is no justification for breaching international human rights, which in itself has the capacity to fuel disenfranchisement and resentment. Nor is it appropriate to contravene Security Council Resolutions, which aim to facilitate collective inter-state action against the international threat that terrorist organisations pose.


* Deniz Kayis is in her penultimate year of a BA/LLB at the University of New South Wales.

1 George Williams, ‘A Decade of Australian Anti-Terror Laws’ [2011] MelbULawRw 38; (2011) 35 Melbourne University Law Review 1136; Ben Golder and George Williams, ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism’ (2006) 8 Journal of Comparative Policy Analysis: Research and Practice 43; Kent Roach, ‘Must We Trade Rights for Security? The Choice between Smart, Harsh, or Proportionate Security Strategies in Canada and Britain’ (2006) 27 Cardozo Law Review 2151.

[2] Audrey Macklin, ‘The Securitisation of Dual Citizenship’ in Thomas Faist & Peter Kivisto (eds), Dual Citizenship in Global Perspective: From Unitary to Multiple Citizenship (Palgrave Macmillan, 2007), 42.

[3] Kim Rygiel, ‘Protecting and proving identity: the biopolitics of waging war through citizenship in the post-9/11 era’ in Krista Hunt and Kim Rygiel (eds) (En)Gendering the War on Terror: War Stories and Camouflaged Politics, (Ashgate, 2006), 145-146.

[4] Previously, involuntary citizenship loss occurred if a person fraudulently gained Australian citizenship (s 34), did not reside in Australia for a minimum specified period in the two years after gaining citizenship (s 34A), served in the armed forces of a nation that Australia was at war with (s 35), or was the child of a person who had their citizenship revoked in one of the above ways (s 36).

[5] See Parliamentary Joint Committee on Intelligence and Security (‘PJCIS’), Parliament of Australia, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill (2015) (‘PJCIS Advisory Report’). PJCIS submissions are available at <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship_Bill/Submissions> .

[6] For analysis specific to the Citizenship Bill, see the PJCIS submissions, above n 5. For more broad analysis of citizenship policy in the context of security, see e.g. Xavier Guillaume and Jef Huysmans (eds) Citizenship and Security: The Constitution of Political Being (Routledge, 2014); Craig Forcese, ‘A Tale of Two Citizenships: Citizenship Revocation for “Traitors and Terrorists”’ (2014) 39(3) Queen’s Law Journal 551.

[7] See e.g. Stephen Walt, The Origins of Alliance (Cornell University Press, 1987) and Robert Keohane, ‘International Institutions: Two Approaches’ (1988) 32(4) International Studies Quarterly 379.

[8] Alexander Wendt, ‘Collective Identity Formation and the International State’ (1994) 88(2) The American Political Science Review 384.

[9] Xavier Guillaume and Jef Huysmans, ‘Introduction’ in Xavier Guillaume and Jef Huysmans (eds) Citizenship and Security: The Constitution of Political Being (Routledge, 2014), 7-8.

[10] Simon McMahon, ‘Introduction: Developments in the Theory and Practice of Citizenship’ in Simon McMahon (ed), Developments in the Theory and Practice of Citizenship (Cambridge Scholars Publishing, 2012), 1.

[11] See Patrick Cockburn, The Rise of Islamic State: ISIS and the New Sunni Revolution (Verso, 2015).

[12] Australian Security Intelligence Organisation, ASIO Report to Government (2014-15), <http://www.asio.gov.au/img/files/ASIOsReportToParliament2014-15.pdf> , 8.

[13] Ibid.

[14] Analytical Support and Sanctions Monitoring Team for the Al-Qaida Sanctions Committee, ‘Analysis and recommendations with regard to the global threat from foreign terrorist fighters’, United Nations Security Council, S/2015/358, 19 May 2015 (‘Al-Qaida Sanctions Committee’). This is an overestimation as it includes those who have left or been killed. The actual number of foreign fighters is likely closer to 60-80%: Peter Neumann, ‘Foreign fighter total in Syria/Iraq now exceeds 20,000; surpasses Afghanistan conflict in the 1980s’ (International Centre for the Study of Radicalisation and Political Violence, King’s College London, 26 January 2015) <http://icsr.info/2015/01/foreign-fighter-total-syriairaq-now-exceeds-20000-surpasses-afghanistan-conflict-1980s/> .

[15] Department of Immigration and Border Protection, Submission No 37 to the Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, 21 July 2015, 1.

[16] Al-Qaida Sanctions Committee, above n 14.

[17] Al-Qaida Sanctions Committee, above n 14; Daniel Byman and Jeremy Shapiro, ‘Be Afraid. Be A Little Afraid: The Threat of Terrorism from Western Foreign Fighters in Syria and Iraq’ (Foreign Policy Paper Series No 33, The Brookings Institute, January 2015) <http://www.brookings.edu/research/papers/2015/01/western-foreign-fighters-in-syria-and-iraq-byman-shapiro> .

[18] Barak Mendelsohn, ‘Foreign Fighters – Recent Trends’ (2011) 55(2) Orbis 189, 191; Craig Forcese and Ani Mamikon, ‘Neutrality Law, Anti-terrorism and Foreign Fighters: Legal Solutions to the Recruitment of Canadians to Foreign Insurgencies’ (2015) 48(2) UBC Law Review 305, 313-315.

[19] Mendelsohn, above n 18, 191.

[20] Forcese and Mamikon, above n 18, 316-319; Byman and Shapiro, above n 17.

[21] Citizenship Act, s 33AA.

[22] Ibid, s 33AA(1).

[23] Ibid, ss 33AA(2)(b), (e), (f).

[24] Ibid, s 33AA(3).

[25] Ibid, s 33AA(4).

[26] Ibid, s 33AA(9).

[27] Ibid, s 33AA(7).

[28] Ibid, s 35(1).

[29] Ibid, s 35AA(2).

[30] Ibid, ss 35(1), 35(2).

[31] Ibid, s 35(4).

[32] Ibid, s 35A(1).

[33] Ibid, s 35A(1).

[34] Ibid, s 35A(2).

[35] Ibid, ss 33AA(10)-(12), 35(5)-(7), 35A(5)-(7).

[36] Ibid, ss 33AA(11), 35(6), 35B(1)-(2).

[37] Ibid, ss 35A(6), 35B(1)-(2).

[38] Ibid, ss 33AA(22), 35(17), 35A(11).

[39] Ibid, ss 33AA(14)-(17), 35(9)-(12).

[40] Ibid, s 35A(8).

[41] Forcese, above n 6, 561.

[42] Strengthening Canadian Citizenship Act 2014, c C-24. On the other hand, in the United States, citizenship is largely protected by the Fourteenth Amendment to the Constitution: see Vance v. Terrazas [1980] USSC 40; 444 U.S. 252 (1980).

[43] Audrey Macklin, ‘Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien’ (2014) 40(1) Queen’s Law Journal 2, 3.

[44] Matthew Gibney, ‘Should citizenship be conditional? Denationalisation and liberal principles’ (Working Paper Series No 75, Refugee Studies Centre, Oxford Department of International Development, July 2011), <http://www.rsc.ox.ac.uk/files/publications/working-paper-series/wp75-should-citizenship-be-conditional-2011.pdf> , 6.

[45] Gibney, above n 44; Benjamin Gray, ‘From Exile of Citizens to Deportation of Non-Citizens: Ancient Greece as a Mirror to Illuminate a Modern Transition’ (2011) 15(5) Citizenship Studies 565.

[46] Gibney, above n 44, 8. See also Rebecca Kingston, ‘The Unmaking of Citizens: Banishment and the Modern Citizenship Regime in France’ (2005) 9(1) Citizenship Studies 23.

[47] Gibney, above n 44, 8.

[48] See e.g. Stephen van Evera, ‘Hypotheses on Nationalism and War’ (1994) 18(4) International Security 5.

[49] Bryan Turner, ‘Citizenship, Nationalism and Nation-Building’ in Gerard Delanty and Krishan Kumar (eds), The SAGE Handbook of Nations and Nationalism (SAGE, 2006), 227-228.

[50] Kingston, above n 46.

[51] John Fischer-Williams, ‘Denationalisation’ (1927) 27 British Yearbook of International Law 45.

[52] Cornelius van Bynkershoek, Questions of Public Law (Tenney Frank trans, Clarendon, 1930) vol II, book II, chapter 17 [trans of: Quaestionum juris publici libri duo (first published 1737)].

[53] Voltaire, A Philosophical Dictionary (Theodore Besterman trans, University of Adelaide Library, 2004) vol II [trans of: Dictionnaire philosophique (first published 1764)].

[54] Gibney, above n 44, 7.

[55] Fischer-Williams, above n 51, 47.

[56] Gibney, above n 44, 8.

[57] Ibid, 9.

[58] Peter H Schuck, ‘Citizen Terrorist’ (2010/2011) 164 Policy Review 61, 69.

[59] British National and Status of Aliens Act 1918 (UK).

[60] Co-Operative Committee on Japanese Canadians v Canada (AG) [1946] UKPC 48.

[61] Ben Herzog, ‘Dual Citizenship and the Revocation of Citizenship’ in Barbara Wejnert (ed) Democratic Paths and Trends (Emerald Group Publishing, 2010), 88.

[62] Afroyim v Rusk, [1967] USSC 132; 387 US 253, 265 (Justice Black) (1967), citing Cong Globe, 40th Cong, 2d Sess, 1804, 2317 (1868).

[63] Shai Lavi, ‘Citizenship Revocation as Punishment on the Modern Duties of Citizens and Their Criminal Breach’ (2011) 6(4) University of Toronto Law Journal 783; Emanuel Gross, ‘Defensive Democracy: Is it possible to revoke the citizenship, deport, or negate the civil rights of a person instigating terrorist action against his own state?’ (2003) 72 UMKC Law Review 51, 57-58.

[64] Lavi, above n 63, 783.

[65] Citizenship Act, s 32A.

[66] Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth), s 4 (‘Citizenship Bill’); Revised Explanatory Memorandum, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) (‘Revised Explanatory Memorandum’), 4[8].

[67] Roach v Electoral Commissioner [2007] HCA 43, [12] (Gleeson CJ).

[68] Citizenship Bill, s 4; Revised Explanatory Memorandum, 2.

[69] Gibney, above n 44, 12.

[70] Immanuel Kant, The Science of Right (W Hastie trans, Law Book Exchange, 2002) 205 [trans of Die Metaphysik der Sitten (first published 1797)].

[71] Emerich de Vattel, The Law of Nations (Joseph Chitty trans, T&JW Johnson, 1883) 105 [trans of Le droit des gens (first published 1758)].

[72] Ibid.

[73] David Martin, ‘Due Process and Membership in the National Community: Political Asylum and Beyond’ (1983) 44 University of Pittsburgh Law Review 165, 190-208.

[74] Gross, above n 63, 58.

[75] Ibid, 74.

[76] Ibid, 121.

[77] Ibid, 57, 89.

[78] Ibid, 53.

[79] Ibid, 55.

[80] Ibid, 87, quoting Nasrallah v. Commander of IDF Forces in the West Bank, 43(2) P.D. 265, 271 (Heb).

[81] Ibid, 76.

[82] Lavi, above n 63, 786.

[83] Maartje de Nie, Revoking the citizenship of Dutch alleged Jihad fighters as a policy measure against a national terrorism threat: does it work? (Masters thesis, University of Amsterdam, 2014).

[84] Law Council of Australia, Submission No 26 to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, 17 July 2015.

[85] Ibid, 12[43]. See also Shipra Chordia, Sangeetha Pillai and George Williams, Submission No 17 to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, 16 July 2015.

[86] Listed terrorist organisations (2016) Australian National Security, <https://www.nationalsecurity.gov.au/Listedterroristorganisations/Pages/default.aspx>.

[87] See ‘Turkey v Syria’s Kurds v Islamic State’, BBC News (online), 19 February 2016, <http://www.bbc.com/news/world-middle-east-33690060> .

[88] David Wroe, ‘Australia’s laws should not treat Jamie Bright like a terrorist’, Sydney Morning Herald (online), 7 June 2016 <http://www.smh.com.au/federal-politics/political-opinion/australias-laws-should-not-treat-jamie-bright-like-a-terrorist-20160607-gpd8cv.html> . Cf. Roger Shanahan, ‘Islamic State and YPG: Our enemy’s enemies not necessarily our friends’, Lowy Interpreter (online), 31 May 2016, <http://www.lowyinterpreter.org/post/2016/05/31/Islamic-State-and-YPG-Our-enemys-enemies-not-necessarily-our-friends.aspx> .

[89] Ruby Jones, ‘Matthew Gardiner, former president of NT Labor, released from Darwin airport after returning from Islamic State battle zone’, ABC News (online) 5 April 2015, <http://www.abc.net.au/news/2015-04-05/matthew-gardiner-returns-from-fighting-islamic-state/6371546> .

[90] Dan Oakes and Sam Clark, ‘Islamic State: Charges dropped against Australian man Jamie Reece Williams, who planned to join Kurdish militia’, ABC News (online) 9 February 2016, <http://www.abc.net.au/news/2016-02-09/prosecution-dropped-against-man-planned-to-fight-islamic-state/7151368> .

[91] Citizenship Act, s 33AA(2)(a).

[92] Citizenship Act, s 33AA(3).

[93] Citizenship Act, s 33AA(4)(b).

[94] Citizenship Act, s 35A.

[95] John Stuart Mill, On Liberty (Norton Books, first published 1860, 1975 ed), 1-16.

[96] Ibid.

[97] Ibid.

[98] Alan George Lewers Shaw, Convicts and the Colonies: A Study of Penal Transportation from Great Britain and Ireland to Australia and other parts of the British Empire (Melbourne University Press, first published 1966, 1977 ed).

[99] Revised Explanatory Memorandum, 1.

[100] See e.g. Leevia Dillon, ‘Cyberterrorism: Using the Internet as a Weapon of Destruction’ in Majeed Khader (ed), Combating Violent Extremism and Radicalization in the Digital Era (IGI Global, 2016).

[101] ‘Islamic State: The propaganda war’, The Economist (Cairo), 15 August 2015 <http://www.economist.com/news/middle-east-and-africa/21660989-terrorists-vicious-message-surprisingly-hard-rebut-propaganda-war> (‘Islamic State: The propaganda war’).

[102] Cat Barker, ‘Citizenship revocation on national security grounds: context and selected issues’ (Research Paper Series 2015-16, Parliamentary Library, Parliament of Australia, 2015) <http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/CitizenshipRevocation> , 13.

[103] Ibid.

[104] Ibid, quoting Adam Lockyer and George Milad, ‘If blocked from returning home, where will Australia’s jihadists go?’, The Conversation (online), 9 September 2014 <https://theconversation.com/if-blocked-from-returning-home-where-will-australias-jihadists-go-31289>.

[105] Revised Explanatory Memorandum, 21, 33.

[106] Mendelsohn, above n 18, 191.

[107] For further analysis, see Rohan Gunaratna, Inside Al Qaeda: Global Network of Terror (Hurst and Company, 2002).

[108] Barker, above n 102, 14, quoting Adam Lockyer and George Milad, ‘If blocked from returning home, where will Australia’s jihadists go?’, The Conversation (online), 9 September 2014 <https://theconversation.com/if-blocked-from-returning-home-where-will-australias-jihadists-go-31289>.

[109] This statement has been attributed to Machiavelli, Sun Tzu, and Petrarch. However, no published evidence links these figures to the statement. The first published source including this statement was The Godfather Part II (1974), written by Mario Puzo and Francis Ford Coppola. See Eric Kasper, ‘Keep Your Friends Close but Your Enemies Closer: Machiavelli and Michael Corleone’ in Joseph Foy and Timothy Dale (eds), Homer Simpson Ponders Politics: Popular Culture as Political Theory (University Press of Kentucky, 2013).

[110] Department of the Prime Minister and Cabinet (Cth), ‘Strong and secure: a strategy for Australia's national security’, Government of Australia, 23 January 2013, ii, <http://apo.org.au/node/33996> .

[111] Revised Explanatory Memorandum, 21, 33.

[112] Ibid, 21.

[113] Williams, above n 1, 1154. See e.g. Criminal Code Act 1995 (Cth), sch 1 (‘Criminal Code’), s 101.6: conspiracy to do an act connected with preparation for a terrorist act.

[114] R v Elomar [2010] NSWSC 10; (2010) 264 ALR 759, 779[79], cited in Williams, above n 1, 1154.

[115] See e.g. the following submissions to the PJCIS Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015: Ben Saul, Submission No 2, 30 June 2015, 2; Bruce Baer Arnold, Submission No 6, July 2015, 4; Paul McMahon, Submission No 7, 13 July 2015, 7-8; Blueprint for Free Speech, Submission No 18, 16 July 2015, 6; Refugee Council of Australia, Submission No 22, July 2015, 3; UNICEF Australia, Submission No 24, July 2015, 22; Councils for Civil Liberties across Australia, Submission No 31, 19 July 2015, 3.

[116] ‘Islamic State: The propaganda war’, above n 101.

[117] Ibid.

[118] Paul McMahon, above n 115, 8.

[119] Citizenship Act, s 35A.

[120] Ibid.

[121] Law Council of Australia, above n 84, 29[125]; Centre for Comparative Constitution Studies, Submission No 29 to the PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, July 2015, 4.

[122] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), Art 15.

[123] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 and 1057 UNTS 407 (entered into force 23 March 1976), Art 12(4).

[124] United Nations Human Rights Committee, General Comment 27 (1999), UN Doc CCPR/C/21/Rev.1/Add.9, [19]-[21].

[125] Ibid, [19].

[126] Australian Human Rights Commission, Submission No 13 to the PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, 16 July 2015, 8[19] (‘AHRC, PCJIS Submission No 13’).

[127] United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4, Annex (1985).

[128] United Nations Human Rights Committee, above n 124, [21].

[129] Revised Explanatory Memorandum, 55[22].

[130] Ibid.

[131] Ibid, 54[22]-55[23].

[132] See e.g. Chordia, Pillai and Williams, above n 85, 3-4.

[133] Citizenship Act, ss 33A(1), 35(1).

[134] Convention on the Rights of a Child, opened for signature 20 November 1987, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).

[135] CRC, Art 3.

[136] CRC, Arts 7, 8(1).

[137] Citizenship Act, ss 33AA(17)(d), 35(12)(d), 35A(1)(e)(iv).

[138] Evidence to PJCIS, Commonwealth Government, Canberra, 5 August 2015, 2 (Norman Gillespie, UNICEF).

[139] Criminal Code, s 7.2.

[140] Citizenship Act, ss 33AA(17)(d), 35(12)(d), 35A(1)(e)(iv).

[141] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, 537[32] (French CJ).

[142] AHRC, PCJIS Submission No 13, above n 126, [35].

[143] Department of Immigration and Border Protection, Submission No 37.4 to PJCIS, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, July 2015, 7-8.

[144] Migration Act 1958 (Cth), s 35.

[145] Citizenship Act, ss 33AA(7); 35(1)(c).

[146] If a person is imprisoned for an offence against the laws of either the Commonwealth or a State or Territory, the Minister is required to cancel their visa.

[147] Migration Act 1958 (Cth), s 189.

[148] This is entrenched in both Australian and international law. See Migration Act 1958 (Cth), 36(2)(aa); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 171 (entered into force 3 January 1976); Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, A/RES/44/128; UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, 85; FKAG v Australia, UNHRC Communication 2094/2011 (August 2013); MMM v Australia, UNHRC Communication 2136/2012 (August 2013).

[149] Susan Jones, ‘ICE Director: 'Bunch' of Countries Refuse U.S. Efforts to Deport Criminal Aliens’, 3 December 2015, <http://www.cnsnews.com/news/article/susan-jones/ice-director-bunch-countries-refuse-us-efforts-deport-criminal-aliens> .

[150] Joseph Chamie, ‘Unwanted Immigrants: America’s Deportation Dilemma’, YaleGlobal: Yale Center for the Study of Globalisation, 27 July 2010, <http://yaleglobal.yale.edu/content/unwanted-immigrants-americas-deportation-dilemma> .

[151] Forcese and Mamikon, above n 18, 30.

[152] See e.g. Convention for the Suppression of Unlawful Seizure of Aircraft, 1970, opened for signature 16 December 1970, 860 UNTS 105 (entered into force 14 October 1971), Art 7; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971, opened for signature 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973), Arts 3, 7, 11; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988, opened for signature 10 March 1988, 1678 UNTS 201 (entered into force 1 March 1992), Arts 5, 6, 7, 8, 10, 13; International Convention for the Suppression of Acts of Nuclear Terrorism, opened for signature 3 April 2005, UN Doc A/Res/59/290 (entered into force 7 July 2007), Arts 2, 5, 7, 10, 11, 13, 14.

[153] ‘In Hindsight: Chapter VII’, Security Council Report: Monthly Report, 30 September 2013, <http://www.securitycouncilreport.org/monthly-forecast/2013-10/in_hindsight_chapter_vii.php> Prosecutor v Tadic (1995) 105 ILR 419, 467[31]. For a detailed examination of how to interpret the binding nature of a UNSC Resolution, see Michael Wood, ‘Interpretation of Security Council Resolutions’ in Max Planck, Max Planck Yearbook of United Nations Law (Martinus Nijhoff Publishers, 1988).

[154] SC Res 1373, UN SCOR, 4385th mtg, UN Doc S/INF/57 291 (28 September 2001).

[155] SC Res 2178, UN SCOR, 7272nd mtg, UN Doc S/RES/2178 (24 September 2014), 4[6].

[156] Council of Australian Governments, Australia’s Counter-Terrorism Strategy: Strengthening Our Resilience, 2015 (2015) Australian National Security, V <https://www.nationalsecurity.gov.au/Media-and-publications/Publications/Documents/Australias-Counter-Terrorism-Strategy-2015.pdf>.

[157] SC Res 2170, UN SCOR, 7242nd mtg, UN Doc S/RES/2170 (15 August 2014).

[158] Kofi Annan, ‘A Global Strategy for Fighting Terrorism’ (Speech delivered at the Closing Plenary of the International Summit on Democracy, Terrorism and Security, Madrid, 10 March 2005) <http://english.safe-democracy.org/keynotes/a-global-strategy-for-fighting-terrorism.html> .

[159] SC Res 1566, UN SCOR, 5053rd mtg, UN Doc S/RES/1566 (8 October 2004).

[160] SC Res 2178, above n 155, 2.

[161] Ben Saul, ‘Plan to strip citizenship is simplistic and dangerous’, The Drum (online), 27 May 2015, <http://www.abc.net.au/news/2015-05-27/saul-plan-to-strip-citizenship-is-simplistic-and-dangerous/6499710> .

[162] [2007] HCA 33.

[163] [2015] NSWSC 1222.

[164] Saul, above n 161.

[165] Evidence to PJCIS, Commonwealth Government, Canberra, 10 August 2015 (Michael Phelan, Deputy Commissioner National Security, Australian Federal Police), 7. See also Evidence to PJCIS, Commonwealth Government, Canberra, 10 August 2015, 6 (Deputy Director General, Counter-Terrorism Group, ASIO), 6.

[166] Fischer-Williams, above n 51, 47.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLawJlStuS/2016/6.html