The lead up to the introduction of the patriotically-named “allegiance to Australia” bill has been marked by debate around whether any such law would be constitutional, or would breach the separation of powers by giving the ministers judge-like powers.

Unfortunately, in its efforts to guard against this unconstitutional outcome, the Abbott government has forgotten that a third branch of government exists alongside the executive and judiciary – the legislature – and that it too is prohibited from exercising judicial powers.

There is a real risk the new law amounts to parliament imposing a sentence and punishment on an individual, an equally unconstitutional outcome. Whether the law is constitutional is only one question though. Arguably, more important ones should be the focus of attention.



In essence, the Australian citizenship amendment (allegiance to Australia) bill will, if passed, revoke the citizenship of dual citizens who:

Serve outside Australia in a foreign army at war with Australia or in a proscribed terrorist organisation;

Engage in certain terrorist conduct; or

Are convicted of certain terror related offences.



The first ground – let’s call it wartime renunciation – is very similar to existing law, but fighting for or in the service of a proscribed terrorist organisation will now be grounds for automatic loss of Australian citizenship. While lawyers will quibble over the meanings of terms both parties are likely to support these changes.

That the fighting or service also has to occur overseas means that it is less likely to be the focus of attention (although it should be closely scrutinised by parliament).



As a new reform, the minister can stop a person automatically losing their citizenship (some relief to dual Australian-Kurds fighting against the Islamic State (Isis) overseas) but the power is 100% discretionary. The minister is not obliged to act, nor follow the rules of natural justice, nor does he or she even need to wait for a final Asio security assessment before acting (or not).



Under the second ground, a dual citizen would lose Australian citizenship if they did certain things including: engaging in a terrorist act; providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act; or financing terrorism or financing a terrorist.



While these acts sound fairly clear, anti-terror laws passed since 2001 have been incredibly broad. While fortunately, the vaguest terror offence – “possession of a thing connected with a terrorist act” – is not grounds for citizenship revocation, there are significant issues with this conduct ground.



It’s not clear whether a person needs to intend to engage in any of these activities before their citizenship is revoked. Someone who puts on the uniform of another country in a time of war knows what they are doing, but will people lose their citizenship because part of their donation to a Gaza Relief fund ended up with a terrorist organisation?

Would a person who, unwisely perhaps, “liked” a radical Facebook group which posted instructional videos on how to use small arms, or web-links to old resources like the Anarchist’s Cookbook, lose their citizenship?



The next question: who is a “terrorist”? Is it a fluid concept (like in the Criminal Code) or is it confined to people the government has declared are terrorists?

If it’s the latter, then at least there is certainty – unless the government gets its wish to make the laws retrospective. In that case, a person could never be sure that someone they gave money to (including family members) is not going to be later declared a terrorist. Remember Thatcher’s designation of Mandela as a terrorist? Some individuals move between criteria.



As with the wartime ground, the minister will have discretion to prevent someone losing their citizenship, although the usual caveats about natural justice apply (ie, there is none).

The proposed law also doesn’t set out a way for someone to challenge a finding that they engaged in proscribed conduct (indeed, the law is silent on who finds out that a person is engaging in this conduct).

Will they have a full review before the courts? If not, then is this a case of parliament adjudicating on an individual’s guilt and imposing a sentence? The high court has ruled that such laws, so called bills of pains and penalties, are unconstitutional at a national level.



Until the questions around level of intent and avenues for appeal are addressed, the second conduct ground – engaging in terrorist conduct – remains dangerously vague and possibly unconstitutional. It should certainly not be made retrospective.



Finally, a dual citizen will lose Australian citizenship if convicted of certain crimes: the conviction ground. This power may superficially appear to balance judicial oversight and ministerial power, but there are some significant concerns and unanswered questions.

It is actually a form of mandatory sentencing, power akin to parliament-imposed jail terms. The conviction-ground also takes no account of age, involvement in the offence (for example if you were an unwilling accessory after the fact) or other mitigating circumstances.



As with all mandatory punishments, it privileges some offences over others. Why are these crimes more deserving of loss of citizenship than others? Why is terrorist conduct involving the compilation of training material worse than the conduct of a husband who murders his wife, or throws his child off a bridge to their death?

In both cases a person has failed to “uphold and obey” the laws of Australia, as they commit to in the Pledge of Allegiance, but in only one case is revocation of citizenship an available punishment.



Finally, the bill is silent on what happens if a person’s conviction is quashed or overturned on appeal. While it is clear that a person loses their citizenship immediately upon conviction, and that a person who loses their citizenship under the wartime, conduct or conviction ground can never become a citizen again, it fails to provide for a person’s citizenship to be reinstated should their conviction be overturned.



So what will the high court say when this law is challenged? It most certainly will be. Given the uncharted waters Australia is entering with these laws I am not brave enough to venture an answer.

However, by making the revocation of citizenship automatic, the law does not resolve the separation of powers issue that forced a change in the government’s plan. Rather than it being the minister exercising judicial power, under the draft bill it is now the parliament – something no less unacceptable under our system of government.

By determining rights and duties (citizenship) and imposing a penalty on the basis of certain facts being established without the involvement of a judicial hearing, the law is arguably unconstitutional.



More importantly, this law fails to answer a central question in this debate: why should some citizens be entitled to escape justice? By revoking citizenship we renounce our own ability to bring a person to justice for breaking our laws.

As citizens we agree to be bound by Australian laws, and to submit to the jurisdiction of Australian courts if we break them. If an Australian commits non-terror related murder (say domestic violence) we punish them in our courts because that is the compact between citizen and state: protection provided by the latter in return for allegiance. The “allegiance to Australia” bill ultimately weakens, rather than strengthens, that bond.