12 Apr 2016
Citizenship loss provisions need expansion to counter terrorist threat
On Friday The Australian’s Paul Maley wrote that a new body established to revoke the citizenship of Australian terrorists will face challenges as it begins (“Citizenship strike on 100 jihadis”).
Last December, Australia joined several countries, including New Zealand, Britain and Canada, to strip citizenship on counter-terrorism grounds.
The Citizenship Loss Board is racing against time to revoke citizenship of a number of high priority cases of Australians known to be actively supporting terrorism.
The board has a delicate balancing act: ensuring it meets the high threshold required by the legislative test, while seeking to stop the return to Australia of citizens who may be intending to undertake terrorist activities here.
Many in the community would be unforgiving if a dual national, known by agencies to be involved in terrorism, was later implicated in a terrorist act on Australian soil.
The British experience tells us to expect lengthy challenges once Australia starts to use this power. And there’s the added complication of what to do if the individual rescinds their second citizenship before the Australian cancellation is invoked.
Minister Peter Dutton has informed The Australian that more than 100 Australians could potentially be subject to citizenship cancellation: more than 110 were known to be working with terrorist groups in the Middle East.
But that’s only part of the story. ASIO’s Director-General Duncan Lewis said in February that around 200 people in Australia were actively supporting terrorism, including a number whose actions were considered so serious their passports had been cancelled to prevent travelling overseas to undertake terrorist acts.
An existing terrorism conviction, carrying a sentence of six years imprisonment, is required for citizenship cancellation of those in Australia. That’s a much higher threshold than that of those overseas.
This means that, within Australia, citizenship cancellation will serve as a further punishment for convicted criminals, but will have no place in disrupting plots. The expanded application of an existing power in the Citizenship Act is the type of action governments are expected to take to protect the public.
But this will still only have an impact on a relatively small number of people: some Australian terrorists, at home and abroad, are solely Australian nationals. They’re exempt from the new provisions for citizenship cancellation.
The Citizenship Act amendments last year only ever envisaged dual nationals: our international obligations mean we’re unable to render a person stateless.
But fellow common law countries do have provision to revoke the citizenship of “naturalised” citizens. In engaging in terrorism, the individual has betrayed the pledge of allegiance made when they voluntarily become citizens: our recent amendment act is notably subtitled “Allegiance to Australia”.
Enacting the power to deprive a naturalised British citizen of their citizenship, even if it renders them stateless, doesn’t breach Britain’s obligations under the UN 1961 Convention on Statelessness.
That’s because Britain added a reservation to the Convention when it ratified it that allows the UK to retain the right to deprive naturalised persons of their British nationality and leave them stateless in circumstances when someone had conducted themselves in a manner “seriously prejudicial to the vital interests of Her Britannic Majesty”.
Unfortunately, when Australia ratified the Convention in 1973, we didn’t add such a reservation and it was only possible to do so at the time of acceding to the treaty.
If we weren’t to breach our international obligations in relation to statelessness, then we could withdraw from the convention and at the same time “re-accede” with a late reservation, along the lines of Britain’s.
This would put us in a stronger legal position to tackle the other half of our homegrown terrorism problem. We could consider confining this power to a specified higher threshold including perhaps applying to those citizens absent for a set period — such as six months or more. This would send a message to those that might be considering joining the ranks of wannabe homegrown jihadists.
The Turnbull government is right to examine how it can best use all the tools in the kit to protect Australians from terrorism. This requires not being risk averse when it comes to pushing the legal frontiers to safeguard Australia from terrorism, especially in cases where Australian-only citizens have conducted themselves in a manner that clearly threatens domestic security. Revoking citizenship of dual national terrorists is an important step in the right direction.
But it’s only the start. As we wait to see how effective this power is, we also need to maintain focus on other mechanisms to counter the terrorist threat.
Jacinta Carroll is head, Counter-terrorism Policy Centre, Australian Strategic Policy Institute. Anthony Bergin is deputy director at ASPI.
Originally published in The Australian, 12th April 2016