ALHR

In July 2015 made a submission on the Bill to the Parliamentary Joint Committee on Intelligence and Security (attached).  ALHR believes that Australia should deal with its citizens under its own laws and not put terrorists or other criminals beyond the reach of Australian law. Australia has legal obligations pursuant to United Nations Security Council resolutions to apprehend and prosecute terrorists, rather than simply to ‘banish’ them from Australia and leave them to be prosecuted under the laws of other countries which may not have legal systems which are as effective as Australia’s. We therefore recommend that the Bill not be adopted.

At the very least the termination of citizenship in the Bill should not apply automatically, but only after the relevant matters have been considered by a court, and the person affected given the opportunity to defend the case against them.  In summary:

1)  ALHR submits that under the Citizenship Act, a conviction for a (serious) specified offence should be required before citizenship can be revoked. However the Bill greatly expands the notion in existing section 35 of automatic termination for certain alleged behaviour, even where no court has established that the behaviour in fact occurred. This is entirely contrary to Australian criminal justice standards which require a fair trial, and to Australia’s obligations as a signatory to the Universal Declaration of Human Rights.

2)  The Bill is too broadly drafted. Even where the Bill involves termination of citizenship on the basis of a court conviction, the Bill imposes a disproportionately severe penalty even for many comparatively minor infringements which do not cause physical harm. It purports to relate to “persons engaging in terrorism and who are a serious threat to Australia and Australia’s interests” but potentially covers even medical assistance by organisations such as Médecins sans Frontières or the Red Cross,1 the threat of serious property damage2 and whistleblowing in the public interest.

3)  The Bill extends the punishment of withdrawal of citizenship to children under 18 who have committed no crime solely because of parental offences. While this reflects the existing scope of the Act it is undesirable and a breach of those childrens’ human rights.

4)  The Bill effectively makes removal of citizenship a matter for Ministerial decision only which is highly undesirable, breaches the fundamental Australian right to a fair trial, and undermines the democratic separation of powers. Removal of citizenship should only occur after a court has agreed that the necessary grounds are established and the person concerned has had the opportunity to put their case.

5)  The Bill is discriminatory, contrary to the Universal Declaration of Human Rights, in that it treats citizens with dual nationality differently from citizens with only one nationality/citizenship. It creates two classes of Australian citizen – those who can be stripped of citizenship, and those who cannot.

6)  While it is said that judicial review of Ministerial decisions is possible, the fact that no reasons need to be given by the Minister makes review effectively impossible. There is no transparency or accountability. The provisions overriding existing obligations to give reasons and to abide by the rules of natural justice should be removed.

7)  There are insufficient mechanisms for independent and comprehensive review and insufficient safeguards in the light of international human rights standards.

8)  The provisions should not be retrospective.