Way back in 2015, Tony Abbott’s government introduced a bill inserting a couple of new sections in the Citizenship Act, which provided for having your Australian citizenship cancelled by the minister if you’d done bad things that he or she considered inconsistent with your “allegiance to Australia”.
I wrote at the time that I was “about 60% convinced it’s constitutionally invalid”. Took eight years, but turns out I was right.
The High Court has killed off — hopefully finally — the notion that the executive arm of government can purloin for itself the power to impose the ancient punishment of banishment from the realm, which is what citizenship revocation really is. That, like all criminal punishment, is a function the constitution reserves exclusively for the courts.
This is the second of two cases that were required to knock out the relevant parts of the Citizenship Act. Last year, the court invalidated section 36B, which allowed the minister to cancel a person’s citizenship if he or she was satisfied that the person had engaged in conduct which satisfied the physical elements of one of a large number of serious offences. That is, the minister would be effectively determining criminal guilt, in place of the criminal courts.
The second case, decided this week, takes out section 36D, which operates the same way except that it requires an actual criminal conviction to have occurred. The minister’s job then would be to determine that the conviction demonstrates that the person has repudiated their allegiance to Australia, and if so he or she can then cancel their citizenship.
The atmosphere around this is heightened by the fact that the person in this latest case is Abdul Nacer Benbrika, notoriously convicted of terrorism offences in 2008 and who would have been released from prison in 2020 but has been kept in under a different legal regime that allows for post-sentence detention (highly controversial too, but legal).
Benbrika is not a good guy and it’s understandable why the government would prefer him to be someone else’s problem — specifically Algeria, where he remains a citizen.
The concept of deportation is not deeply problematic, nor is that of stripping a dual citizen of their Australian citizenship if their relationship to the country — what the Citizenship Act since 2015 has called “allegiance” and the High Court seems to have accepted as well, but which I’d prefer to think of less feudally as mutual obligation — has been effectively severed by their own acts. For example, if you fight for a foreign country at war with Australia, you can’t seriously call yourself Australian ever again and it doesn’t offend any human rights conception to kick you out.
That’s not what troubled the High Court. The issue is the separation of powers, which the constitution imperfectly set out to preserve. In establishing the jurisdiction of the federal courts, the constitution gave them sole control of the traditionally judicial functions of determining criminal guilt and its punishment.
Coupled with that is the question of what punishment actually means. A long series of cases has established that detention is by its nature punitive (duh), but with exceptions — for example, immigration detention for the limited purposes of determining whether a non-citizen should be given a visa or be deported, and this form of detention is treated as non-punitive.
In the case last year, the court affirmed that involuntary revocation of citizenship is also punitive, because it is akin to banishment. That being so, it’s not a power that the executive arm of government can wield, because that’s unconstitutional.
This stuff does smarter heads than mine in; on the same day, the court in a different case ruled another citizenship-loss provision of the Citizenship Act valid. That one applies where a person, who has immigrated here and obtained citizenship, has later been convicted of criminal offences that were committed before they became a citizen. In that situation, the minister can cancel their citizenship. The court said that’s okay, because it doesn’t involve punishment; rather, it’s just taking back something (citizenship) that, if we’d known the truth, we’d have never given them in the first place.
Fine distinction? I think so, which is why the High Court keeps splitting on these cases. We can expect more of them; we can also expect the government to respond to this latest decision with more legislative reform attempting to claw back some of the ministerial power the court has just taken away.
In 2015, the then-government was loudly warned by experts that it was stepping into unconstitutional territory, and ignored them. The Labor Party voted in favour of the laws that have now been thrown out, so there’s no reason to expect the current government to heed the court’s message.
It’s a really important point, notwithstanding the desire of both major parties to exercise discretionary power over who gets to be a citizen and who doesn’t. Banishment is a dire punishment, with life-changing consequences. It should not be imposed by anyone except a court of law, accompanied by all the protections that the justice system provides.
It’s easy to have no sympathy for Benbrika and to want him deported. That may be fine and just, following due process; but simply recalling the identities of some of the men who in recent years have held the ministerial power (hello, Peter Dutton) should suffice to explain why nobody should want anyone’s fate held in such capricious hands.
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No way should a minister be entrusted with the power to revoke citizenship; as the article says, that must be a matter for the courts. More than that, parliament should do all it can to limit ministerial discretion on all matters to the minimum, because ministers can be relied on to abuse their power; that is why we have a parliament. If ministers could be trusted, parliament would be redundant. Unfortunately our MPs seldom remember that, which is no accident, keeping the majority of MPs docile and biddable is one of main functions of the ruling political parties.
Of course it did. Labor is as authoritarian and hostile to civil liberties, rights and freedoms as the Coalition.
Ministerial discretion is one thing that should be scrapped, we’ve seen numerous instances of were ministirial discretion has been applied by an individual whose moral compass I would suggest is less than who they were applying the discretion to. At least a court has avenues of appeal where the decision can be applied by a majority and not an individual with dubious motivation.
Symptom of WASP nativism or eugenics that is mooted &/or sometimes enacted elsewhere in Anglosphere, and preference for immigrants to be temporary without citizenship rights inc. voting.
No sense of balance when an Australian born citizen without other citizenship cannot suffer same punishment, the best the powers that be can do is target NZ citizens who have been long term residents in Oz, to display their nativist authoritarian credentials versus those without resources to fight back.
There are in a way two classes of citizenship. There’s the citizenship of a person who is, say a third generation Australian. If such a person commits an offence like Benbrika, he gets a prison sentence in accordance with the crime and once that is served, he’s back in the community or maybe locked up for life. No question of cancelling his citizenship and deporting him.
And then there’s the citizenship of a person born overseas which politicians want to be conditional and which the High Court seems to have refuted as it should.
Once you are a citizen, that should be the end of the matter with all citizens treated the same, the exception being if the overseas-born person lied to obtain their citizenship and was therefore not entitled to it.
With the exception of offences like treason.
What I am saying is that the judicial sentence is the punishment for the crime. Deprivation of citizenship should have a different test.
How does that fit with Bradley’s point that deprivation of citizenship is a synonym for banishment, and banishment is and always has been a punishment for a crime? Which is not only Bradley’s point, but now the formal opinion of thje High Court?
I’m not a legal expert and my points might be a bit half-baked and I’m happy to be corrected. But as far as I know, deportation used only to be considered for non-citizens who’d committed a criminal offence and even then until Ruddock and particularly Dutton, the number of permanent residents who were deported was much lower than it has become in the last 10-20 years. And if a person was a citizen it wasn’t considered.
When Dutton started talking about cleansing Australia of any foreign-born person who committed an offence, it started to put citizens of migrant background into a different category to the Australian-born.
It is a question what does citizenship really mean and are some citizens more equal than others.
It’s a background issue to the legal arguments.
And that is the distinction. The argument is about banishing citizens. There’s no dispute about those who are not citizens; they can be told to leave any time and for any reason the government chooses.
An interesting question in the context of refugees being granted Australian citizenship through various processes, then potentially revoked, under those laws, and our role in the global community. Where does the charge of deprivation of liberty stand here? I’m talking in the situation where we can return refugees to their place of origin, by deporting them back to where they came from, where they could face such consequences… taking into account other than the parliamentary scrutiny act on human rights, we have no human rights legislation in Australia, at federal level.
As for ministerial discretion, anything falling within Spud’s remit, now or previously, should be questioned. The man has the moral compass of a used car salesman (not casting aspersions on the trade, just stating a fact).
Dual citizens have more rights in some situations (like if they’re stranded in their other country of citizenship) and less in others (like Benbrika almost was subject to).
Exactly, but plays well to MPs, RW MSM and society…. satisfy a need off too many to kick down and get nasty.
An elegant way to solve this problem would be to disallow multiple citizenships in the first place. The number of countries that allow dual citizenship is in fact a minority of nations, although a majority of the Anglosphere does allow it. It would also solve the problem of pollies getting ejected from parliament by applying the same standard to the whole population. PR (which doesn’t raise the same constitutional concerns) would be the maximum status available to those unwilling or unable to sever ties with their country of origin.
You have a strange notion of elegance. The High Court’s interpretation of the ban on parliamentarians having other citizenships is so broad it includes citizenships that have never been exercised and that the individual concerned did not know about. Withdrawing Australian citizenship from everyone in that position could be described in many ways, but elegant is not the first adjective that comes to mind.
That’s a really backwards way of looking at it. The HC ruling is convoluted because the language it is relying on is necessarily vague — Australian Citizenship not even being a concept when the constitution was drafted. A legislative solution would be an opportunity to clean up and clarify. With clear legislation, the constitutional position (and ruling) becomes moot. As I noted above, Australia is in the minority when it comes to allowing dual citizenship, so it’s not like this problem hasn’t been solved before.
How will you make your legislative solution override the constitution? Everybody else believes it works the other way around.
Sarcastic tone noted! The answer is the same way most legal questions don’t arrive at the Supreme Court — where the legislation is (a) well founded in a constitutional power and (b) clearly covers the various circumstances in which a constitutional question might otherwise arise. Such legislation is not in conflict with or overriding the constitution, it’s simply a superset of it.
For example, if Australia legislated to disallow dual citizenship for anyone over 18, the chances of someone being elected to parliament with any question about the matter would be greatly minimised and therefore so are the grounds for a high court challenge. As I said above, the ruling is not overridden, but becomes moot.
The constitutional provision would, as you say, become moot if everybody who might be affected by it, if they tried to get into parliament, had their citizenship removed anyway. This must mean that nobody could be a citzen of Australia if they are eligible to apply for citizenship of any other country, so an enormous number of current Australians with parents or grandparents in other countries would cease to be citizens, so would every Australian Jew and so on; at least until each of them had a declaration that they are not citizens from every country where they might be. How many current citizens is that? Are you sure this is elegant?
It’s really bizarre you’ve jumped straight to stripping people of citizenship. Once again, this is a solved problem in most of the world. Generally speaking the way it’s handed is to ask people which citizenship they wish to retain at the appropriate juncture — usually when they turn 18 in the case of children born to parents of different nationality, or when an adult seeks to become naturalised they would renounce their previous citizenship.
For existing Australians with dual citizenship there would need to be an approach. Either ask them to chose upfront, provide a grace period or simply grandfather them in and let dual citizens gradually age out of the population.
The question of eligibility for another citizenship is not something any given nation state can police. However, what can be policed is the exercise of rights derived from another nationality, for example applying for a foreign passport. This is the point in time at which you’d be considering stripping citizenship.
No, all I’m doing is following your proposal, explicitly made in your first comment, of applying the standard used for parliamentary candidates to all citizens. You cannot have a different standard for all other citizens if you are serious about ‘solving’ the problem of parliamentary candidates being removed. It has to be one or the other.
Ahhh… if only ‘twere that simple! Just out of curiosity, can you list the countries that DON’T allow dual citizenship? I did a quick google search, and there appear to be 18 of them… out of a possible 195. By my very rough calculations, that’s less than 10%, and include North Korea, Saudi Arabia, UAE…. Considering the politically changing borders of some of those nations, and the historical context, how would you enforce it? Australia is lucky enough to be an island (the only island, country, and continent, in the world). Not nation , admittedly, although according to the referendum results, we soundly rejected the preposition that the Traditional Custodians have any say, well done us!
My point is, you couldn’t make that work in Australia, until there is a redress for the last 235 years of injustice. Which was, coincidentally, recognised by the HC by the Mabo Decision. Your argument implies that anyone subject to citizenship prior to 2007 ( this is when the Citizenship Act was born) isn’t “Australian”. Complete nonsense.
The Australian Citizenship and Nationality Act was passed in 1948.
It was the case, until (as far as i remember) sometime in the mid to late 1990s, that an Australian citizen applying for and getting citizenship of another country would lose their Australian citizenship. That law was changed by Howard in return for being allowed to win an election, so the son of the media baron who allowed him to win (who can’t be named here) could take up US citizenship and retain his Australian citizenship.
Can I see your references for this? Which law was changed by Howard? Specifically?
Australia only recognised dual citizenship as of around 2000. Before that, taking another citizenship automatically voided your Australian citizenship.
Can’t remember the exact date, but I do remember the law changing, because both my parents (born in England and NZ, but lived in Australia since immigrating in the early ’50s) took up Australian citizenship shortly thereafter.
The issue was that British nationals used to be able to travel in and out of Australia as freely as citizens. When Britain tightened up their laws ( directed at non-Anglo countries), Australia tightened up its laws so that a British passport holder no longer had free right of entry to Australia and had to get a re-entry visa to re-enter Australia.
Reply 2: I don’t think Australia has ever worried about citizens having a second citizenship in addition to their Australian citizenship. The problem with the US is, I think, because it requires an applicant for US citizenship to give up their Australian citizenship, not vice versa.
https://www.abc.net.au/news/2023-02-11/dual-citizen-lost-australian-rights-under-outdated-law/101929662
“Between 1948 and April 4, 2002, Australian adults who got a second citizenship automatically lost their Australian citizenship.”
The US recognises multiple citizenships since 1952: https://en.wikipedia.org/wiki/United_States_nationality_law#Dual_nationality
Just in case the modbotted post doesn’t get approved…
“Between 1948 and April 4, 2002, Australian adults who got a second citizenship automatically lost their Australian citizenship.”
(From an ABC article.)
The US has recognised multiple citizenships since 1952 (from the Wikipedia page on United States Nationality Law).
Perhaps I am thinking of the reverse situation where other countries don’t require a person to give up their original citizenship when they take out Australian citizenship, as in my case. Many Turkish migrants to Australia wouldn’t take out Australian citizenship until Turkey permitted dual nationality.
A lot of the people Dutton deports for having committed a criminal offence are people who arrived in Australia as small children and never knew they were not a citizen.
As far as I remember Australia has never required an Australian acquiring another citizenship to give up their Australian citizenship. Too many residents who like me were born British.
It’s more than a touch disingenuous to imply dual citizenship is something rare when the split between the “minority” of countries allowing dual citizenship and the “majority” that don’t is nearly 50/50, and the trend globally is towards allowing it as emigration and immigration become more accessible and common.
You also seem to ignore the most common way for Australians to gain multiple citizenships is through descent – Australia is their “country of origin”.
Correct. We take pride in our multiculturalism, apparently…
Mr. Bradley…could you please explain why the High Court decides Benbrika is allowed to continue as an Australian citizen and remain in this country, while today it has been announced that the so-called ‘ISIS brides’ and their children (also Australian citizens?) have been told they cannot come back to Australia? This is a genuine request.
Also…why have many other countries repatriated their citizens, in the very same situation as the aforementioned ISIS mothers and their children, and the courts here refuse to accept that? Thank you!
(Apologies for the unfinished post!!)
It might be helpful to say exactly what reports your question is based on, and to distinguish between decisions taken by ministers, or by public service officials, or by courts . SBS News, for example, today has an article ‘How ‘ISIS brides’ and their children are being resettled back in Australia‘.
ok, now I’ve seen a report on ABC News which seems to be case you refer to. The report says
So nobody except the judges will know the reasons until they are released.
Thank you for that. It just seems unbelievable that the two decisions are sooo different. I feel so sorry for the children left in Syria…they haven’t done anything. At least they would have a chance in life if able to return to Oz. By all accounts, those who have been returned previously are doing well with the appropriate care…as are their mothers.
Could not agree more. The government – Labor or Coalition alike – are behaving abominably by leaving Australians to rot in the worst imaginable conditions overseas, just because the government apparently prefers that to shouldering its responsibility. If there is evidence they committed crimes under Australian law, then bring them here and put them on trial. If they are suspected of being a threat to public safety, take appropriate measures when they are back here. But whatever, our citizens are the responsibility of this country, and it is a dereliction of duty, shameful and immoral, to abandon them and leave it to others to take responsibility for them. As you say, their children are not guilty of anything and their welfare should be a primary concern.
In all fairness, the current government is left dealing with the last decade of BS and fearmongering from the previous government. They seem to have a vision, but this doesn’t fly well with soundbites, and headlines as has been the norm over the last decade, or more. I’ll remind you of the ”iceberg”. And the Titanic at this point in time.
That is true; the Coalition was in the driving seat during most of that time. But I’m not inclined to think Labor has any better aspirations because in those years, from the back seat, Labor was offering very little if any criticism or opposition. That said, it would certainly not be easy or without cost for the government, Labor in particular, to take a more creditable line. When trying to understand how we got here, we cannot ignore the always helpful contributions to these debates from Rupert’s many minions in the various media.
Mr Bradley…could you please explain