(Sydney) – Australia’s parliament should substantially revise a new counterterrorism law empowering authorities to revoke Australian citizenship from dual nationals – including children – without adequate legal safeguards. The Allegiance to Australia Act (“Allegiance Act”) was passed by parliament on December 3, 2015, and will take effect with the assent of the governor-general.
“Stripping citizenship is an extremely serious matter, yet the Australian government wants to do so without providing basic legal safeguards,” said Brad Adams, Asia director at Human Rights Watch. “Australia has a responsibility to protect people from harm, but arbitrarily depriving dual nationals of Australian citizenship isn’t how to go about it.”
The Allegiance Act allows the authorities to automatically revoke Australian citizenship from dual nationals as young as 14 for terrorist acts committed abroad or by a person who is no longer in Australia. It also allows the government to strip Australian citizenship from dual nationals who have been convicted of terrorism offenses that carry prison terms of six years or more. And it retroactively applies to dual nationals convicted of terrorism-related offenses over the previous decade that carry prison terms of 10 or more years, also without any new court process.
Conduct that can trigger citizenship revocation under the Allegiance Act includes voluntarily fighting with a declared foreign terrorist organization; engaging in terrorism; receiving terrorist training; or financing, training or recruiting related to terrorism. The law excludes people providing “neutral and independent humanitarian assistance.”
Another ground for which dual nationals can lose Australian citizenship is engaging in “foreign incursions.” Acts in this category include damage to a public building overseas. As the Law Council of Australia noted, this creates the possibility that an Australian could lose his or her Australian citizenship for “engaging in graffiti on a public building in a foreign country.”
The retrospective provision of the law allows revocation of citizenship for an offense that did not carry that potential sanction at the time it was committed. This amounts to retroactively applying a harsher penalty, which is prohibited under the International Covenant on Civil and Political Rights, to which Australia is a party.
For Australian dual nationals who are abroad or committed the alleged offense abroad, revocation of citizenship without a hearing may be based on security assessments from the Australian Security Intelligence Organisation. In such cases the burden of proof the law requires is that the immigration minister is “aware” that the person committed the offense that triggers citizenship revocation. The government’s explanatory memorandum for the law says the term “aware” amounts to “subjective knowledge” that the person committed the offense, a threshold it defines as “more than suspicion or belief.”
“A vague standard such as ‘subjective knowledge’ is a dangerously low threshold of proof for an act as severe as stripping people of citizenship and banishing them for life,” Adams said.
In weighing whether to exempt an Australian from citizenship revocation, the immigration minister is required to consider factors including “public interest,” but not specifically whether the person has shown progress toward rehabilitation. Failure to consider rehabilitation would be inconsistent with Australia’s justice system, which recognizes the potential for offenders to reform, Human Rights Watch said. Nor is the minister specifically required to assess potential impact on the targeted person’s family members.
The immigration minister is not required to notify the person of citizenship revocation before it takes effect and in some cases does not have to notify the person at all.
According to a 2013 report by the United Nations secretary-general, “International law … obliges States to provide for an opportunity for the meaningful review of nationality decisions, including on substantive issues.” It provides that if citizenship is revoked, “lodging an appeal should suspend the effects of the decision, such that the individual continues to enjoy nationality – and related rights – until such time as the appeal has been settled.”
If the person who lost citizenship seeks judicial review, the minister’s decision could be upheld based on the balance of probabilities that person committed the relevant offenses. The law does not require the criminal court standard of proof beyond reasonable doubt.
The Allegiance Act creates a serious risk of indefinite detention without charge and effective statelessness, Human Rights Watch said. International law prohibits arbitrary indefinite detention of all people, including non-nationals. Australia is a party to the UN Convention on the Reduction of Statelessness, which prohibits governments from revoking a person’s nationality if it leaves them stateless.
The authorities may not always be able to confirm an individual’s presumed second nationality, or the country of second nationality may refuse to accept a terrorism suspect. In addition, international law prohibits forced repatriation to countries where the returnee is likely to face torture or other ill-treatment. In such cases, individuals stripped of Australian citizenship could be subject to indefinite detention upon trying to enter Australia, their presumed second country, or other countries.
The law creates particular risks for children, allowing the government to revoke citizenship from dual nationals as young as 14, Human Rights Watch said. International standards recognize that children who join armed groups and commit unlawful acts should be considered primarily as victims, not just perpetrators.
Children may be less likely than adults to have a connection to a country where they hold citizenship other than the one in which they live, increasing the possibility that loss of Australian citizenship could exile them from the only country they have known, Human Rights Watch said. While the Allegiance Act requires the immigration minister to include “the best interests of the child as a primary consideration” when deciding whether to exempt the person, it does not require judicial oversight of that process.
“Children who become involved with armed groups should be provided special protection and assistance, not banished,” Adams said.
States have a responsibility to protect their populations from terrorist attack, but they need to act in accordance with their international legal obligations. However, dozens of countries have enacted counterterrorism laws and policies in recent years that imperil human rights, Human Rights Watch research has found.
“Around the world, countries are enacting measures that risk trampling rights in the name of security,” Adams said. “Australia should be enacting just measures that set an international example, not jumping on the rights-abusing bandwagon.”