Having been introduced to parliament in June, the government’s bill to strip Australian citizenship from dual nationals found to have engaged in terrorist conduct passed into law on parliament’s final sitting day for 2015.

The bill greatly expands the government’s power to revoke Australian citizenship. Previously, a dual citizen could only be stripped of their Australian citizenship for serving in the armed forces of a country at war with Australia (putting cases of fraudulent acquisition of citizenship to one side).

That power was never used. The conduct leading to revocation is now defined with reference to terrorism offences or membership of, or services to, terrorist organisations.

The bill underwent significant amendment between its introduction and its enactment. As first introduced into parliament, the bill was an unworkable mess.

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) then reviewed it. Drawing on 43 submissions and several days of hearings, the committee produced a serious and responsive report with 27 recommendations for change.

These amendments were adopted in the bill’s second draft.

How can dual nationals have their citizenship revoked?

At every stage of its development, the bill has provided three mechanisms for revoking a person’s Australian citizenship. Citizenship loss is to be automatic on:

engaging in conduct defined with reference to terrorism offences in the Criminal Code; or

fighting for, or being in the service of, a specified terrorist organisation.

The minister also has discretion to strip the citizenship of a person who has been convicted of an offence listed in the new Section 35A of the Australian Citizenship Act and sentenced to six or more years jail.

Revocation of citizenship ‘by operation of law’

The revocation power that attracted the most criticism in the bill as introduced was Section 33AA. It provided that, on the occurrence of certain conduct – vaguely defined with reference to provisions of the Criminal Code – revocation just happened.

This meant that a person’s conduct would have triggered revocation of citizenship without any apparent need for a decision at all. Many criticised this position as untenable. The Commonwealth Ombudsman pointed out that somebody or some authority needed to make the decision that the criteria warranting revocation were met.

Following a PJCIS recommendation, this power’s scope was narrowed to cases in which the relevant conduct occurred outside Australia, or the person had left Australia before they had been tried for the relevant conduct. The result of this amendment is that the mechanisms for automatic revocation cannot be used against a person who is in Australia and available for trial, subject to one exception.

Conversely, the justification advanced for automatic revocation now, in effect, lies in the difficulty of bringing a person outside Australia to trial. In addition to these changes to the power’s scope, amendments were made to clarify the conduct that triggers revocation and to provide for greater legal constraints on the power’s use.

But Section 33AA still relies on the legal fiction that revocation just happens when a person engages in the relevant conduct.

There is a constitutional motivation for the government’s stubborn refusal to make provision in this section for a decision-maker. It is arguable as a matter of constitutional law that revocation of citizenship is a punishment. It removes a person’s right to return to, and reside in, Australia.

Punishment for an offence against the law is an incident of judicial power. A member of the executive cannot exercise this power.

The argument that revocation is punitive is strengthened where the conduct triggering revocation is defined with reference to criminal offences.

There is an alternative characterisation, however, whereby a person by their own conduct triggers the revocation of a statutory privilege. This characterisation avoids these constitutional difficulties.

The provision is likely to be challenged. It remains to be seen whether the courts will accept this alternative characterisation.

Application to dual citizens

Revocation of citizenship remains limited to dual citizens. Sole nationals cannot be deprived of their Australian citizenship. This is to be commended. It helps to ensure that revocation does not leave a person stateless.

However, the distinction in the vulnerability of sole and dual nationals to citizenship revocation does raise the question of whether we should be using it as a counter-terrorism tool at all.

Someone who has only Australian citizenship and someone also in formal possession of an additional citizenship may both engage in identical conduct. The dual citizen will be vulnerable to revocation, in addition to any criminal or other sanction. The sole national will not be.

If we are content to sanction, disapprove and respond to the sole national without resorting to revocation, on what basis is revocation necessary for the dual national?

The bill may have been improved significantly since its introduction. But this and other troubling questions remain.