Australian Citizenship-You're right, Your Responsibility Discussion Paper.
This submission is made in relation to the Australian Citizenship-You're right, Your Responsibility Discussion Paper.
The QCCL was established in 1967 and has as its principal objective the implementation in Queensland and Australia of the Universal Declaration of Human Rights.
PRINCIPLES
Article 15 of the Declaration says:
“1. Everyone has a right to nationality.
2. No one shall be arbitrarily deprived of his nationality...”
It is our submission the government's proposal to enable the revocation of Australian Citizenship where there are reasonable grounds to believe the person is able to become a national of another country would violate Article 15(1). The proposal that the Minister is to have this power violates Article 15(2).
In our view the correct principles in this area have been enunciated by the Supreme Court of the United States in a series of decisions. We have no doubt it will be said the statements by the American Court rest on particular constitutional language and US history. However it is our view that these pieces of formal and historical background do not detract from the statements of principle made by the Court over a number of years.
In its decision in Trop v Dulles 78 S Ct 590 at pages 593- 594 the Court said "citizenship is not a license that expires upon misbehaviour. The duties of citizenship are numerous and the discharge of many of these obligations is essential to the security and well-being of the Nation. The citizen who fails to pay his taxes or to abide by the laws safeguarding the integrity of elections deals a dangerous blow to his country. But could a citizen be deprived of his nationality for evading these basic responsibilities of citizenship?….But citizenship is not lost every time a duty of citizenship is shirked. And the deprivation of citizenship is not a weapon the government may use to express its displeasure at a citizen's conduct however reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship… his fundamental right of citizenship is secure."
In Afroyim v Rusk 87 S Ct 1660 at page 1662 the Court said "In our country the people are sovereign the government cannot sever its relationship to the people by taking away their citizenship."
In his dissenting judgement in Perez v Brownell 78 S Ct 568 the Chief Justice Warren said at page 579, "Citizenship is man's basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claims to protection from any nation and no nation may assert rights on his behalf. His very existence is at the sufferance of state within whose borders he happens to be”
He goes on at page 586 of the judgement to make this statement of the legal position in that country which should apply in this country, "The citizen may elect to renounce his citizenship, and under some circumstances he may be found to have abandoned his status by voluntarily performing acts that compromise his undivided allegiance to his country."
On the basis of these principles we reject the underlying logic of the discussion paper which treats the citizen as subject to the state. In a democracy the state is subject to the citizens.
CURRENT LAW
Applying these principles we have no objection to section 34 of the Australian Citizenship Act which provides that a person may be deprived of their citizenship by the Minister upon being convicted of some fraud in relation to their application for citizenship. We emphasize that a conviction is an essential precondition to the exercise of this power.
We also have no doubt, as has been held by the Supreme Court of the United States, that the act of voluntarily joining a foreign army is conduct indicating that you have renounced your citizenship.
Section 35 of the Act says:
“(1) A person ceases to be an Australian citizen if the person:
(a) is a national or citizen of a foreign country; and
(b) serves in the armed forces of a country at war with Australia.
(2) The person ceases to be an Australian citizen at the time the person commences to so serve.”
Assertions that section 35 is "automatic" are a nonsense. Someone has to take a step. Someone has to actually issue a document to cancel the citizenship. That person is the Minister. That person, that is the Minister, must decide if the person has another nationality and that they have served in the army of a foreign state against Australia. In the jargon this is a jurisdictional fact. Consequently, the question of whether or not the person has engaged in this conduct will be decided by the Minister. If this provision is extended to "terrorist organizations" more decisions will be made by the Minister.
Section 35 of the Australian Citizenship Act in our submission should require a conviction or other Court ruling before citizenship is lost.
The fact that it does not is in our view a violation of the right of due process. It will no doubt be said that this provision has been there since 1949. We would point out that since 1949 the standards of due process have risen. We have had the administrative law revolution.
EXTENDING THE CURRENT LAW
We can then understand the concept behind the proposition that fighting for a terrorist organization could be the equivalent of joining the army of a foreign state. However it is not that simple. Firstly, we do not know how the phrase "terrorist organisation" is to be defined. Currently there is a list of terrorist organisations. That list is created by the exercise executive fiat. It is far more of a political decision than the question of whether or not there is a foreign state.
Moreover, not all of the organisations currently listed as terrorist organisations pose any threat to this country amongst them are the Kurdistan Workers Party and the Palestinian Islamic Jihad.
Until we see how the term “terrorist organization” is to be defined we cannot take this issue any further.
PUNISHMENT MUST BE IMPOSED BY A COURT
The decision to revoke citizenship has been in our submission correctly characterised by the American Supreme Court as a form of punishment. See the decision in Trop at page 598. Punishment should not be inflicted by a Minister. That is exclusively a matter for the judiciary. Review in the Administrative Appeals Tribunal and Judicial Review in Federal Court are not adequate protection. The Administrative Appeals Tribunal is not a court. Its members do not have appropriate level of protection from removal. Judicial review does not enable a Court to assess the merits of the minister’s decision.
On 29 May 2015 Senator Concetta Fierravanti-Wells appeared on the ABC AM program and compared the process by which young people become radicalised to that of grooming by online predators. We also note from European evidence that many individuals who joined terrorist organisations or went overseas to fight in wars in previous years returned home to live perfectly normal peace loving lives. In many cases it is possible that these young people are, as young people have done forever, following romantic notions and/or are in search of adventure.
Of course, individuals who go overseas and participate in murder and torture should be punished appropriately. However whilst not being naive about such claims we should not exclude the possibility that some people have gotten overseas and changed their mind. The decision as to whether or not these people should be punished by being deprived of their citizenship should be made by a Court after all the evidence is heard and not by a Minister.
Reference will be made no doubt to the difficulty of proving these allegations. But as the former Independent National Security Legislation Monitor Mr Brett Walker SC has pointed out the demand for due process rises with the level of seriousness of the allegation it does not fall. If we are to preserve the right to due process for ourselves we must ensure that is preserved for those who are least deserving of it.
EFFECTIVENESS
On what basis does the government say depriving someone of their citizenship is going to improve the security of Australians?
If they are not in Australia it will surely make not one jot of difference to the security of Australians
In a world of cheap and easy international air travel and the Internet keeping a person out the country is not going to prevent them from urging and facilitating criminal activity. We have seen that are already in the case of the alleged planned attacks on Anzac day which were allegedly promoted by a 14-year-old boy in the United Kingdom.
In fact, from the security point of view it would be better to have these people in the country either in jail or under surveillance.
If it is intended to deprive people who are in the country of their citizenship what does government propose to do with them? What other country is going to accept them?
If we identify a person who is going to commit a terrorist offence surely the obligation is on us to deal with that person by putting them in prison and not shovel them off to some other country to deal with.
People in this country who are serious threat to the community should be in prison, if they have been convicted of an offence.
Questions must also be asked as to whether this mechanism is going to be a more effective deterrent than the other mechanisms already in place including the Foreign Fighters legislation and the ability of the Minister for Foreign Affairs to suspend or cancel passports.
MAGNA CARTA
It is of course most ironic that this debate is taking place on the occasion of the 800th anniversary of Magna Carta. We observe the Prime Minister rather brazenly had himself photographed with a copy of that document despite his government having introduced some the more outrageous legislation of recent years and is now proposing to make people stateless.
We trust the Prime Minister took time to consider article 39 of the Magna Carta which is in these terms:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
Is quite clear that depriving a person of their citizenship and rendering them stateless is to reintroduce a mediaeval form of punishment namely exile.
It would indeed be outrageous if at this time we introduced legislation which accords individuals less rights than they held 800 years ago.