Parliamentary joint committee also recommends going ahead with bill to strip citizenship without conviction from dual nationals fighting overseas

This article is more than 5 years old

This article is more than 5 years old

The government should only strip dual nationals in Australia of citizenship for terrorist offences after a conviction, a government-dominated parliamentary committee has recommended.



But the parliamentary joint committee on intelligence and security (PJCIS) report recommends going ahead with a bill which would strip dual nationals fighting overseas of their Australian citizenship without conviction.

The committee also recommended retrospectively stripping Australian citizenship from those convicted of terrorist-related offences, though limiting it to those who had been sentenced to at least 10 years’ jail for those offences.

If the bill passes this would apply to Abdul Nacer Benbrika, who was sentenced to 15 years’ jail for plotting a terrorist attack in Australia, and Mohamed Ali Elomar, who was sentenced to 28 years’ jail for conspiracy to prepare for a terrorist attack.

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However, the committee remains at odds over the constitutional standing of the Australian citizenship amendment (allegiance to Australia) bill 2015, with the report recording a number of committee members had “serious concerns”.



Australia’s leading constitutional lawyers, human rights groups, ethnic community organisations, refugee organisations and human rights commissioner Gillian Triggs have all objected to part or all of the dual national bill as it was drafted.

On Friday, after the report was released, critics such as the NSW Council of Civil Liberties and Prof Kim Rubenstein of the Australian National University agreed that the worst elements of had been addressed but constitutionality was still an issue and the core notion of using citizenship as punishment was still problematic.

The committee recommendations were an attempt to overcome warnings from Australia’s leading constitutional experts that the bill was poorly drafted and probably unconstitutional.



While Labor’s Mark Dreyfus described it as a “significant refinement and a narrowing” of the proposed bill and spoke in support of the “unanimous” report, the text made it clear some committee members still felt the bill had significant legal problems.

“These members considered that, although it is ultimately a matter for the high court to determine the constitutionality of any bill, it is incumbent on governments and parliamentarians to legislate in a manner which minimises the risk of a successful constitutional challenge,” the report says.

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“This is particularly so where the parliament is considering national security legislation that impacts on the fundamental rights of individuals.

“The concerns of a minority of members were not allayed by the qualified assurances in the attorney general’s letter. The view of these members is that without the benefit of substantive explanation from the government, the very serious concerns raised in evidence remain unanswered.”

Liberal MP Dan Tehan, the chairman of the committee, said the report “acknowledged and responded” to the issues raised by participants while “protecting the Australian community from threats posed by dual nationals who intend to do us harm”.

Tehan said he was satisfied that if the bill was amended according to the committee’s recommendations, it would address the legal problems raised in the public hearings.

Tony Abbott had previously said the government had advice that the redrafting of the bill ensured the constitutional issues were “minimised”. But the government refused to release the full advice to the committee to examine, in spite of Labor’s urging.



Instead the attorney general George Brandis wrote a “letter of comfort” to the committee, assuring its members that solicitor-general Justin Gleeson’s advice was “in his opinion, there is a good prospect that a majority of the high court would reject a constitutional challenge to the core aspects of the draft bill”.

The government will now respond to the report and bring legislation in the spring session of parliament, which sits next week.

Immigration minister Peter Dutton said the bill provided a “vital extra tool” to protect Australians from terrorism and he thanked Tehan for the report.

The report also narrowed some of the provisions around children. It recommended amending the section which would strip Australian citizenship from children whose parents lose citizenship, unless there is another parent who is an Australian national who can take responsibility for the minor.



The committee recommends that children under 10 should not lose citizenship if their parents were stripped of dual nationality.



According to the committee, children under the age of 14 could not lose citizenship if they were convicted of terrorist offences.

For those dual nationals aged between 14-18 years convicted of terrorist offences in Australia or fighting overseas with terrorist organisations, the power to strip Australian citizenship would rest with the minister.

The committee also recommends narrowing the range of terrorism-related offences for which dual nationals could lose their citizenship.

The bill originally recommended dual nationals could lose Australian citizenship for offences including damage to commonwealth property, which would have caught dual nationals committing acts such as graffiti. The committee recommends the removal of this offence from the list.

The committee has a majority of Coalition members and the report has been delayed three times, given deep divisions within the committee over the recommendations.



Speaking just an hour before the report was released, foreign minister Julie Bishop appeared to split from Tony Abbott’s position by stating she did not support stripping Australian citizenship dual nationals on a retrospective basis “in principle”.

“As a matter of principle, I don’t support retrospectivity, but there may well be circumstances in relation to the citizenship situation that would warrant consideration of that, but as a matter of principle, I wouldn’t support retrospectivity.



“However, we would need to look at the number of convicted terrorists and what their citizenship status was before we could make a definitive statement on that.”

Prof Rubenstein said while the committee dealt with the “very egregious” sections that were disproportionate, the report did not deal with the constitutional elements which could see a high court challenge. She said the attorney’s general letter regarding the solicitor general’s advice was not very assuring.

“The very core of legislation remains highly questionable,” Rubenstein said.

“It was great that the report puts on record the real concerns heard in the committee but it doesn’t give answers to them.

“The bill is still prepared to use citizenship as a frame for punishing terrorists, which is counterproductive.

“There is no doubt terrorism is awful and unacceptable but the linking of terrorist activity to an end of allegiance takes us back to an antiquated and feudal notion of membership of the community which is concerning for a multicultural society because only dual citizens are effected.”

President of the NSW Council of Civil Liberties Stephen Blanks described the recommendations as “much less dangerous” but still described the very nature of the bill “inappropriate” for using citizenship as a punishment.



“The committee’s first recommendation that the removal of citizenship without conviction would only apply to those offshore significantly cuts down the scope of what the government was trying to do,” Blanks said.

“The way it was drafted it would have applied to significant numbers of people on shore so that is significant but the fact remains citizenship stripping is an inappropriate punishment.

“If people commit a criminal offence it doesn’t mean they should be deprived of their nationality or family should be deprived of their nationality. They should be brought to justice so the whole idea to use citizenship as a tool is really going to do nothing about the threat of terrorism.”

Blanks said stripping people and their families of citizenship would only alienate them from the Australian community and be “counterproductive in our struggle against terrorism”.

“It should not go ahead but it is much less dangerous than the government had originally proposed.”

Originally, the government’s proposal sought to extend section 35 of the Citizenship Act which says a person ceases to be an Australian citizen if he “serves in the armed forces of a country at war with Australia”. The government sought to strip dual nationals of Australian citizenship for terrorist-related offences at the minister’s discretion.



When lawyers suggested this would be problematic, the government modified the plan to “automatically” revoke the citizenship of an Australian dual citizen for such offences.