Government Bureaucrats Can Cancel Citizenship

By Blake O’Connor and Ugur Nedim

The Federal parliament has passed the Australian Citizenship (Allegiance to Australia) Bill 2015 which gives government bureaucrats the power to cancel the Australian citizenship of dual citizens who they claim are involved in terrorist activity, without the right to a court hearing.

The Bill amends section 35 of the Australian Citizenship Act 2007, which now gives the Immigration Minister power to cancel the citizenship of dual citizens aged over 14-years if he says they fought for, or were in the service of, a declared terrorist organisation.

The Bill introduces a ‘Citizenship Loss Board’ made up of ASIO officers and other state agents, whose job it is to identify and advise the Minister about who they suspect of being ‘jihadi’ dual citizens.

It has been reported that fifty people are currently identified – people who now risk the cancellation of their citizenships without having the benefit of a court hearing where they can present their case.

Federal Attorney General George Brandis strongly supports the new laws, stating:

“Dual nationals who engage in terrorism are betraying their allegiance to this country and do not deserve to be Australian citizens”.

But there has been widespread criticism of laws which allow bureaucrats to administratively (rather than judicially) cancel citizenship.

Increasing Government Control

Many argue that, rather than reduce the threat of terrorism, the new laws simply give the government a way to exclude people they see as undesirable, based upon little or no evidence and without court oversight.

Sydney University Professor of Law, George Williams, is a vocal critic of the laws:

“…. 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 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.”

Labor’s legal affairs spokesman, Mark Dreyfus, says his party is pushing for greater accountability:

“It’s important that… [the process] 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.”

However, the nature of any such ‘review’ – including whether the affected person will have access to any of the information which is relied upon or be able to make submissions on their own behalf – is not yet known. As Professor Williams notes:

“… 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.”

He adds:

“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.”

Discriminatory

Australia is not the only country to enact laws which allow bureaucrats to make administrative decisions to cancel the citizenship of dual citizens – indeed, similar laws have been passed in New Zealand, Canada and France, causing significant controversy.

In France, Justice Minister Christiane Taubina resigned on the basis that such laws discriminate against those from mixed ethnic backgrounds, favouring those of single ethnicity.

Failing to Guard Against Terrorism

Another criticism of the laws is that they merely feed into terrorist propaganda – bolstering claims that certain nations are actively hateful of Muslims and minorities.

This, critics say, increases the threat of terrorism rather than reducing it. They add that cancelling citizenship can lead to radicalisation of affected individuals, and that it merely shifts the problem to other countries.

Australia’s International Obligations

The laws have also been criticised on the basis that they may breach Article 15 of the Universal Declaration of Human Rights, which says that ‘everyone has a right to nationality’.

But despite these criticisms, it appears Australia is degenerating into a country where more and more decisions are made by state agents, rather than by way of due process through the judiciary.

This is occurring under our noses, with bipartisan political support and little public dissent.

Groups designated as ‘undesirables’ appear to include bikers, tattoo parlour owners, protesters and anyone who expresses dissent about foreign invasions justified on the basis of ‘weapons of mass destruction’ or a ‘terrorism threat’. Which group will be next?