“Everyone has the right to a nationality”

Deprivation of nationality on national security grounds in Australia: Part of a wider trend

11 April 2019 | Timnah Baker, Research Fellow, Peter McMullin Centre on Statelessness

Citizenship stripping on national security grounds is being used with increasing frequency across Europe. The so-called ‘foreign fighter’ phenomenon has led to feverish attempts in many countries to introduce and widen powers of citizenship deprivation. Examples of recent legislative amendments include Austria, Belgium, the Netherlands and the United Kingdom.  To be sure, this trend isn’t linear and the widening/expansion of these powers often takes place incrementally. Australia is a good case in point for illustrating the contours of this trend, as well as some of the complex issues relating to statelessness that can arise in the context of deprivation of nationality laws.

Allegiance to Australia Act 2015

Australia radically expanded its citizenship loss regime in 2015 with the introduction of the Allegiance to Australia Act. Under the current citizenship stripping laws,  a person can lose his or her Australian citizenship on grounds related to national security concerns in three principle ways. First, a citizen outside Australia is deemed to have automatically renounced his or her citizenship when she or he ‘acts inconsistently with their allegiance to Australia’ by engaging in certain terrorist activity. Second, a person automatically ceases to be an Australian citizen when she or he ‘fights for, or is in the service of, a declared terrorist organization.’  Third, the Minister has the power to determine that a person ceases to be an Australian citizen where the person has been convicted of a national security offence and has been sentenced to a period of imprisonment of at least six years. The first two grounds of are often considered ‘conduct-based deprivation’ while the third is referred to as ‘conviction-based deprivation.’  Under all three mechanisms/grounds, it is possible for the government to strip a person of Australian citizenship only if the person is a dual citizen. While on the face of it this means that a person cannot be deprived of Australian citizenship if this would render him or her stateless, there remain serious concerns about whether the existing procedural safeguards can adequately ensure that a person is in fact a dual citizen before his or her citizenship is removed.

The recent case of Neil Prakash illustrates the difficulties of determining that someone is a dual citizen as a matter of fact. Neil Prakash was a Melbournian man who in December of 2018 became the twelfth citizen to be stripped of their Australian citizenship over associations with offshore terrorist groups. The Australian government claimed that Prakash holds Fijian citizenship through his father, and therefore would not be rendered stateless. But the decision to strip him of citizenship quickly led to a standoff between Australia and Fiji, with Fijian immigration authorities saying they have no record of Prakash being a Fijian citizen or applying for citizenship. Not unlike the prominent UK Supreme Court case of Pham v Secretary of State for the Home Department, the inadequate dual citizenship determination procedures potentially gave rise to international disorder, with nations attempting to transfer high-risk or unwanted individuals onto other nations.

Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018

In a recent Bill, the Australian government proposed to adjust the threshold for dual citizenship determination by allowing a person to be stripped of Australian citizenship where the minister is satisfied that the person has dual citizenship. In its submission to a parliamentary inquiry into this Bill, the Peter McMullin Centre on Statelessness identified a number of legal issues raised by the amendments. Among these concerns is the fact that the new Bill is intentionally designed to introduce a temporal gap into the Minister’s discretionary powers.  While the current test asks whether the person is a national of a country other than Australia ‘at the time when the Minister makes the determination,’ the proposed amendment invokes a predictive element by providing that the Minister can strip a person Australian citizenship if  ‘the Minister is satisfied that the person would not [….] become a person who is not a national or citizen of any other country.’ Accordingly, it may be open on this amendment for the Minister to find that an individual will not ‘become’ stateless because the individual (in the Minister’s view) may have the opportunity to apply for citizenship elsewhere despite not currently possessing a second citizenship.  This conflicts both with the plain meaning of Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons, to which Australia is party, and with the UNHCR’s authoritative Handbook on the Protection of Stateless Persons. The 1954 Convention defines a stateless person as a person ‘who is not considered as a national by any State under the operation of its law.’  The terms of Article 1(1) make clear that the inquiry as to whether an individual is stateless is a present determination (‘is not considered’).  It is not an inquiry into whether a person may have a right to apply for or acquire citizenship, or otherwise at some point be ‘considered as a national…’ by a state.   Ultimately, by weakening and rendering seriously insufficient the procedural safeguards for dual citizenship determination, the new Bill raises considerable issues relating to statelessness and is therefore incompatible with Australia’s obligations not to render persons stateless.

The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019

A more recent Bill—The Counter-Terrorism (Temporary Exclusion Orders) Bill—forms part of the same legislative trend. The Bill concerned the issue of temporarily denying citizens, both adults and children, a right to return to Australia. The scheme is designed to apply to Australian citizens returning from conflict zones and where the Minister of Home Affairs ‘suspects on reasonable grounds’ that the making of the order is necessary to prevent terrorism-related activity upon their return to Australia. The order can be in force for up to two years.

The exclusion of nationals - even on a temporary basis - is inconsistent with the fundamental duty of states to re-admit their own nationals, an obligation owed both to individuals and to the international community at large. Moreover, the exclusion of nationals also raises issues under international human rights law including the right to return to one’s own country and the rights of the child. Ultimately, the Bill could have the effect of rendering an Australian unable to enter his or her own country while the order is in place which is inconsistent with Australia’s international obligations. The Centre’s submission to the parliamentary inquiry is available here.

Melbourne University’s Peter McMullin Centre on Statelessness

A full session was dedicated to this topic at the Peter McMullin Centre’s inaugural Statelessness Intensive Course in February 2019. The course comprised a cohort of 31 participants from 12 different countries, representing various types of organisations, from universities to government departments, to NGOs, legal corporations and human rights organisations. Due to the success of the inaugural course, the Centre will be running the Statelessness Intensive annually in February at the Melbourne Law School. The Peter McMullin Centre on Statelessness was established in 2018 with the objective of undertaking research, teaching and engagement activities aimed at reducing statelessness and protecting the rights of stateless people in Australia, the Asia Pacific region and globally. For more information about the Statelessness Intensive Course and other opportunities for collaboration and information sharing (including our inaugural doctoral workshop, visiting fellowships, PhD scholarships and other activities) please visit our website.

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