By Michael Bradley Thursday 25 June 2015
Photo: You have no right to be heard before the Immigration Minister makes his decision. (AAP: Dave Hunt)
Allegiance will soon be a necessary condition of citizenship, under a new law designed by the Government to get around the constitutional problem that it can't declare someone guilty of a crime, writes Michael Bradley.
Today's new law is the Australian Citizenship Amendment (Allegiance to Australia) Bill 2014. I've actually read it, so here's a primer.
Who cares? These laws are just for terrorists anyway
Until now, and so long as Australia remains an actual functioning democracy, your unconcern about most of these laws has been more or less justified. Not because those who have done nothing wrong have nothing to fear, but because the Government hasn't actually used most of the national security laws it's been making since 9/11.
But this one is different. If you are a dual citizen or a foreign national, you really should care. This law doesn't create new crimes you're not planning to commit; it takes away something you probably care about - your identity as an Australian - automatically and in circumstances which will surprise you.
The Bureau of Statistics says that 27.7 per cent of the current Australian population (6.4 million people) was born overseas. Add to that number those who were born here but hold dual citizenship - there are no current stats on this but in 2000 it was estimated at 4-5 million. Those two figures overlap, so conservatively perhaps a third of us are either foreign citizens or foreign nationals. Keep reading.
What does the new law do?
The Citizenship Act has always said that if a foreign citizen or foreign national fights for a foreign country at war with Australia, they automatically cease to be an Australian citizen. Fair enough.
The Bill adds three new categories of circumstances which will bring about the same result.
1. Fighting for a terrorist organisation
If you're a foreign citizen or national and you fight for a declared terrorist organisation outside Australia, your Australian citizenship will automatically cease. Again, fair enough. The Immigration Minister makes the decision to declare named terrorist organisations, and he'll probably adopt the list already specified for the existing terror laws. Currently, 20 organisations are listed (they're predominantly Islamic).
About 120 Australians are fighting for Islamic State, and many of them have dual citizenship. When this law passes, if they keep fighting, their Australian citizenship will be gone. The practical effect is that they'll never be allowed back into the country.
2. Convictions for certain offences
If you're a foreign citizen or national and you are convicted of any of a long list of criminal offences, your citizenship will automatically cease.
The list includes treason and espionage, and all the terrorism-related offences. Consider though these examples of offences, your conviction for which would mean you were no longer Australian:
- Intentionally urging violence against a group distinguished by race, religion, nationality or political opinion, where that violence would threaten the peace, order and good government of Australia. Say you went on social media calling for all the Muslims in Cronulla to be bashed.
- Advocating terrorism. This is much wider than you think. It would include, for example, encouraging someone to hack into the ABC Online website and post a message calling the Government a bunch of terrorists. No, really, it would.
- Being in possession of things connected with terrorist acts. This could include allegedly terrorist propaganda materials, for example.
- Intentionally damaging Commonwealth property. If you get angry in a Centrelink office and chuck a chair, or steal a public servant's mobile phone and drop it in the river, on conviction your citizenship is gone.
3. Acting inconsistently with your allegiance to Australia
This one is the kicker. I'm about 60 per cent convinced it's constitutionally invalid, but assume it stands up. It's been designed to avoid the constitutional problem that the Government can't declare you guilty of a crime. Instead, it says that, if a dual citizen or a foreign national "acts inconsistently with their allegiance to Australia" by engaging in certain conduct, they will renounce their Australian citizenship. So, it's like saying "I'm not Australian anymore", except by actions instead of words.
Funny, I didn't know that allegiance was a necessary condition of citizenship. Nobody's ever asked me to declare it.
The list of conduct is very long: engaging in terrorist acts, financing terrorism, recruiting or training for a terrorist organisation, blowing things up overseas, and those "hostile activities" in foreign countries again. These are borrowed over from the Criminal Code, the critical distinction being that you don't have to have been convicted, or even accused, of committing an actual offence.
You renounce your citizenship by doing the act, whatever it is, as soon as you do it. It's automatic and self-inflicted.
So you're no longer a citizen, according to the Act. Who will know? Obviously, it has no practical consequence until somebody notices and acts on it. That means the Government saying "hey, we've noticed you're not a citizen anymore, so we're deporting you". What the bill says is that, when the Immigration Minister notices that you've renounced your citizenship by your actions, he has to give written notice of it to whoever he thinks he should. Presumably his own department, so it can track you down and kick you out of Australia or refuse you re-entry.
And there's the problem. How does the Minister notice that you've renounced your citizenship? By noticing that you've done a particular thing. To illustrate by random example: say ASIO tells the Minister that you've been doing some public fundraising for a charity based in Syria. ASIO thinks the charity is a front for IS, and it thinks you've been reckless as to whether the funds will end up in terrorist hands. That's the definition of financing terrorism in the Criminal Code, and if ASIO is right then you have renounced your citizenship.
The Minister says "thanks ASIO", and deports you. To do that, he has to accept that the factual allegations are correct. You have no right to be heard before he does so. You can take your case to the courts where you'll have the onus of proving that you honestly thought the Syrian charity was legitimate, which might not be of all that much comfort if you're already on a plane to Damascus.
I'm not very comfortable with that.
Michael Bradley's firm Marque Lawyers is presently advising Amnesty International Australia on the legal validity and effect of the bill referred to in this article.
Michael Bradley is the managing partner of Marque Lawyers, a Sydney law firm.
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