Australian Courts Given Power to Strip Australian Citizenship from Dual Citizens

On 29 November 2023, the Senate introduced the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 (‘the Bill’) giving the Australian courts the power to strip citizenship from dual citizens. The purpose of this bill was twofold:

Repeal the current citizenship cessation provisions, which allow for the Australian government to strip Australian citizenship from dual citizens. This power was held to be invalid by the High Court of Australia in the recent cases of Alexander v Minister for Home Affairs and Benbrika v Minister for Home Affairs.
Introduce new provisions that permit the Australian courts to make an order to revoke a dual citizen’s Australian citizenship, where the person has been convicted of a serious offence.

Background to Bill

The introduction of this bill follows two recent high court cases of Alexander v Minister for Home Affairs (2022) and Benbrika v Minister for Home Affairs (2023). In both of these matters, Australian dual citizens had been stripped of their Australian citizenship by the Australian government due to their terrorism-related offences. The High Court ruled in both cases that the Australian government’s decision to strip the Australian dual citizens of their Australian citizenship was such an extreme punishment that it should only be vested in the judiciary of Australia, not the executive branch of government.

Following these decisions, the Australian government introduced this bill to shore up its anti-terror regime and allow for the stripping of Australian citizenship to continue via the Courts.

Details of the Bill

Under the new Bill, Australian dual citizens aged 14 years or older can have their Australian citizenship stripped if they have committed a serious offence which “demonstrate[s] that the person has repudiated their allegiance to Australia”. The relevant conviction must impose at least 3 years of imprisonment cumulatively.

The power to revoke citizenship would involve the Minister for Home Affairs making an application to the court that it exercise its power to revoke a dual citizen’s Australian citizenship. Notably, this power can only be exercised in relation to criminal conduct from 12 December 2015 onwards.

Whilst the cases involved terrorism-related acts, the definition of ‘serious offence’ will go beyond just terrorism convictions.

Home Affairs Minister Clare O'Neil made the following comments in a press conference on 27 November 2023:

"What ASIO tells us is that there are other national security issues that are of great concern to them, particularly things like foreign interference and espionage… Our laws, for the first time, will make it possible for a court to withdraw someone's citizenship if they offend those particular laws.”

As well as terrorism offences, this conduct could also include espionage, advocating mutiny, foreign interference, and offences related to the use of explosives or lethal devices.

Critique of the Bill

Some concerns have been raised with the introduction of this bill. Members of Parliament and law experts have criticized the rushed manner in which the bill was passed and the lack of scrutiny that occurred. In particular, given the broad meaning of the term ‘serious offence’, there is a risk that the list of offences that would fall under this term could expand over time. Luke Murphy, the president of the Law Council of Australia, made the following comments regarding the new bill:

“Any measures pursued to remove the citizenship of an Australian engages the key legal principles on which our democracy was founded, and therefore demand careful consideration by the Commonwealth Parliament and Australian citizens themselves. Such measures should be reserved for the most extraordinary cases…
The Law Council is additionally concerned by amendments introduced … that would significantly expand the list of serious offences engaging citizenship deprivation powers to include less serious terrorism offences and other unrelated federal criminal offences, for example, slavery and slavery-like offences including servitude, forced labour and deceptive recruiting for labour or services”

Given that the bill applies to minors aged 14 and above, there is also a concern that this bill directly contravenes the UN Convention on the Rights of the Child (CRC) that states the objective of sentencing a juvenile offender must be his or her ‘reintegration’ into society or ‘rehabilitation’. Furthermore, if a dual citizen cannot return to their other country of origin for fear of their safety or well-being, then there is also a risk that this punishment will cause these individuals to become stateless in effect.

Nonetheless, the fact that the power to revoke citizenship has now been invested in the judiciary rather than the executive branch will likely prevent the Australian government from excessive use of the power to revoke Australian citizenship. It is envisaged that the judiciary will exercise this power sparingly taking a considered and balanced approach.

How Can Agape Henry Crux Help

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