Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015

Transcription

1 Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 Submission to the Parliamentary Joint Committee on Intelligence and Security July 2015

2 Australian Citizenship Amendment (Allegiance to Australia) Bill UNICEF Australia 1.1 UNICEF is a multilateral organisation that works in over 190 countries to promote and protect the rights of children. UNICEF supports child health and nutrition, clean water and sanitation, quality basic education for all boys and girls, and the protection of children from violence, exploitation, abuse and HIV. 1.2 UNICEF is unique among world organisations and unique in our rights based and participatory approach to working with children and young people. 1.3 UNICEF Australia is a national committee of UNICEF which advocates for the rights of all children and works to improve public and government support for child rights and international development. 2. Parameters of this submission 2.1 UNICEF Australia welcomes the opportunity to make a submission to the Parliamentary Joint Committee on Intelligence and Security in relation to the Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill The intention of this submission is: to outline concerns in relation to the Bill from a child rights perspective; and to make recommendations to help ensure that the rights of children are adequately protected. 2.3 Although the primary focus of the submission is the rights of the child, it should be noted that many of the human rights concerns expressed are equally applicable in relation to the adults who are potentially affected by the provisions of the Bill. Additionally, it should be remembered that the rights of children must also be considered in the event that adults affected by the provisions are the parents of a child (a person under the age of 18 years). 3. Chief guiding instruments 3.1 UNICEF Australia s submission is informed by the following human rights instruments: Convention on the Rights of the Child 1990 (CRC); Declaration on the Rights of the Child 1959;

3 Australian Citizenship Amendment (Allegiance to Australia) Bill Universal Declaration of Human Rights 1948; Optional Protocol to the Convention on the rights of the child on the involvement of children in armed conflict 2002 (Optional Protocol); The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups 2007; The UN Convention on Stateless Person 1954; The UN Convention on the Reduction of Statelessness 1961; and International Covenant on Civil and Political Rights (ICCPR) The submission is specifically guided by the following: Best interests of the child as a primary consideration (Article 3, CRC); General measures of implementation (Article 4, CRC); Parental guidance and the child s evolving capacities (Article 5, CRC); Right to nationality and right to know and be cared for by parents (Article 7, CRC); Right to preserve identity (Article 8, CRC); Right not to be separated from parents (Article 9, CRC); Right to be heard (Article 12, CRC); Protection from all forms of violence, abuse and neglect (Article 19, CRC); Protection of children affected by armed conflict (Article 38, CRC); Rehabilitation of child victims (Article 39, CRC); Demobilization, the provision of physical and psychological recovery and social reintegration of persons used in hostilities (Article 6(3), Optional Protocol); Rehabilitation and social reintegration of persons who are victims (Article 7(1), Optional Protocol); Freedom of movement and the right to enter one s own country (Article 12, ICCPR); Equality before the courts and tribunals (Article 14, ICCPR); Right to nationality (Article 15, ICCPR); Protection of the family (Article 23, ICCPR); and Right to acquire a nationality (Article 24, ICCPR). 4. Summary of concerns 4.1 UNICEF is committed to protect children from all forms of violence, regardless of where they are in the world. UNICEF Australia recognises that it is legitimate for governments to respond to terrorist related activities that pose threats of violence or

4 Australian Citizenship Amendment (Allegiance to Australia) Bill harm to the community. The Australian Government reports of a growing challenge connected with persons fighting abroad with armed forces and armed groups. 1 The Prime Minister has acknowledged that a number of those thought to be fighting abroad are young Australians, some children, who are said to have been brainwashed online. 2 Given the potential impact this Bill and related measures could have on children and young people therefore, it is critical that the rights of children, their evolving capacities and the complexities of their involvement with armed forces and armed groups, be given due regard and reflected appropriately in legal and policy responses. As a democratic society, we must seek to strike an appropriate balance so that safety and security can be pursued in a framework that respects the human rights of all people, both children and adults. Responses must always be reasonable, necessary and proportionate to the risk and such responses must not unreasonably threaten the very rights and freedoms that Australian society and democracy is founded upon. 4.2 This submission outlines UNICEF Australia s deep concerns about the Australian Citizenship Amendment (Allegiance to Australia) Bill In summary, UNICEF Australia is concerned that: 1) The Bill seems to present a system whereby an officer in the executive arm of government will assess whether or not a person has essentially met the criteria of criminal conduct so as to fall under the provisions of the Bill. It is not apparent on the face of the Bill who will, in effect, conduct the assessment of whether a person s conduct falls within the definitions of the Criminal Code (including determining if a child knew his or her conduct was wrong), what evidence the assessor will use, what standard of proof the assessor will adopt or what, if any, rules of evidence apply. Reasons do not need to be given to a person affected by the operation of the Bill and the rules of natural justice have been expressly excluded. These factors, when viewed as a cumulative whole, risk offending fundamental principles including the rule of law, separation of powers and procedural fairness (including the right to a fair trial). The issues the Bill raises are therefore considerably complex and, although these issues have been touched upon in this submission, UNICEF Australia anticipates that a more in depth discussion of these issues will be covered in other submissions to the Joint Committee and 1 Prime Minister of Australia The Hon Tony Abbott MP A message from the Prime Minister, 24 May Accessed at: on 17 July Prime Minister of Australia The Hon Tony Abbott MP A message from the Prime Minister, 24 May Accessed at: on 17 July 2015.

5 Australian Citizenship Amendment (Allegiance to Australia) Bill that, in turn, the Joint Committee will give due consideration to these issues in its report. 2) The Explanatory Memorandum acknowledges, and UNICEF Australia agrees, that the proposal limits the rights of children in many and significant ways. Most significantly, the best interests of the child are not protected in the process or the outcomes that can result under the Bill, together with the operation of section 36 of the Citizenship Act 2007 (Cth). 3) The Government has not demonstrated how the measures of the Bill are reasonable, necessary and proportionate in the circumstances. To the contrary, understanding the context of children s involvement in armed conflict and terrorist related activities, together with the blanket application and lack of procedural protections, suggest that these measures are not reasonable, necessary and proportionate in the circumstances. 4) Given the complexity and seriousness of the proposed Bill, there has not been adequate time allowed for a comprehensive consideration and consultation with relevant civil society groups, the community and by Parliament. Laws with significant human rights implications absolutely require time for considered analysis, consultation and alternative measures to be developed and proposed. 4.3 The Government rightly recognises that revoking citizenship is a very serious outcome. 3 Given the serious nature of such action, the potential of the proposals to breach a vast number of the rights of the child and the failure to demonstrate how these limitations of rights is necessary, reasonable and proportionate, UNICEF Australia strongly recommends that the Bill not be passed in its current form. Further recommendations can be found below at section 8 of this submission. 3 The Parliament of the Commonwealth of Australia, House of Representatives Australian Citizenship Amendment (Allegiance to Australia) Bill Explanatory Memorandum (Explanatory Memorandum) at para. 59.

6 Australian Citizenship Amendment (Allegiance to Australia) Bill The potential impact of the Bill on children 5.1 If passed, it is understood that children could be affected by the operation of the proposed changes in the following ways: Scenario 1 Where, under section 36 of the Citizenship Act 2007 (Cth), the Minister exercises discretion to revoke the citizenship of a child whose responsible parent/s has had their citizenship revoked (under new sections 33AA, 35 or 35A). In this scenario, the child has not been personally implicated in any terrorist related activities or other conduct covered by the provisions in the Bill. Rather, the decision to revoke the child s citizenship is made on the basis of the conduct or purported conduct of the responsible parent/s. Scenario 2 Where a child through his or her own conduct is considered to have personally met the criteria under the Bill for renunciation and cessation of citizenship (section 33AA), cessation of citizenship on the basis of service outside Australia in armed forces of an enemy country or a declared terrorist organisation (section 35) or the child has been convicted for terrorism offences and certain other offences (section 35A). 5.2 It should be said at the outset that regardless of how a child s citizenship would cease or be revoked, revoking a child s citizenship under any circumstances 4 is inconsistent with the rights of the child. This applies regardless of the circumstances leading to the citizenship ceasing, including if a revocation is made on the basis of the child s conduct or made on the basis of the conduct of a responsible parent who has had his or her citizenship revoked. The discussion below outlines how numerous rights of the child are threatened by the ongoing operation of section 36 of the Citizenship Act 2007 (Cth) and the additional grounds for revocation proposed by the Bill. Where appropriate, this submission will outline specific concerns relating to the two different scenarios outlined above. 5.3 Although the Explanatory Memorandum asserts that there would be limited application with respect to minors due to the Criminal Code 5, UNICEF Australia holds serious concerns that this is not, in fact, apparent on the face of the Bill. For section 35A to apply, a court would first need to convict a child of the offences listed 4 Other than by a free, prior and informed decision of the parent/s or guardian/s of the child. 5 Explanatory Memorandum, para. 27.

7 Australian Citizenship Amendment (Allegiance to Australia) Bill in that section. Therefore, a court would first need to have due regard to sections 7.1 and 7.2 of the Criminal Code (regarding the capacity of a child). However, it is not apparent that this is the case in relation to sections 33AA and 35 of the Bill. On the contrary, ceasing citizenship on the basis of alleged inconsistency with an allegiance to Australia (section 33AA) and service in armed forces of an enemy country or a declared terrorist organisation (section 35) appear to occur in a non-transparent manner, through an executive function of government that is removed from the checks and balances of the criminal justice system. This is so despite both sections requiring the interpretation of concepts taken from the criminal justice system and a factual analysis of whether such conduct has occurred. Definitions and concepts outlined in the Criminal Code are complex and are rightfully interpreted and administered in judicial courts with the checks and balances that accompany the criminal justice system. It is not apparent on the face of the Bill who will, in effect, assess whether a person s conduct falls within the definitions of the Criminal Code (and therefore sections 33AA and 35), what evidence the assessor will use, what standard of proof the assessor will adopt or what, if any, rules of evidence apply. A person affected will not need to be given reasons for the decision and the rules of natural justice are expressly excluded. Although the provisions are said to have automatic application, it is undeniable that a determination will need to be made that a person s conduct has fallen under the sections of the Bill so as to inform the Minister and to trigger the giving of notice that the person has ceased to be an Australian citizen. 5.4 Additionally, the Explanatory Memorandum states that the specified offences will have limited application with respect to minors referencing the Criminal Code and stating that a child from 10 to 14 years of age can only be criminally responsible for an offence if the child knows that his or her conduct is wrong. 6 The question of whether or not a child knows that his or her conduct is wrong (as is required for a determination that a child over 10 but under 14 has criminal capacity 7 ) is a highly complex investigation, ordinarily requiring expert evidence, direct discussions with the child, a deep understanding of the evolving capacities of a child and the checks and balances of a court environment. This information must be gathered and then considered against the specific circumstances of that child including their level of maturity, their access to quality education, the countries that they have predominantly resided in and their family-based environment. Again, it is unclear on the face of the Bill who will, in effect, be assessing whether a child knows that his or her conduct is 6 Explanatory Memorandum, para Section 7.2, Criminal Code Act 1995 (Cth).

8 Australian Citizenship Amendment (Allegiance to Australia) Bill wrong, what evidence the assessor will use, what standard of proof the assessor will adopt or what, if any, rules of evidence apply. It is also unclear how this assessment could be fairly and appropriately made if an affected child is based in another country at the time. A child affected will not need to be given reasons for the decision and the rules of natural justice are expressly excluded. 8 A further discussion of the problematic nature of the proposed process is also discussed below at section 7 of this submission. However at the outset it is significant to note that the President of the Australian Bar Association, Fiona McLeod SC, has commented that: the processes contemplated [by the Bill] are completely inadequate. The responsibility will fall upon public servants to determine, based on untested and undisclosed information, that certain trigger events have occurred and a person has, by their conduct, been forever stripped of citizenship. The Minister remains vested with an extraordinary power to give practical effect to the revocation and may act unilaterally, without regard to evidence of disloyalty or adverse security threat. An illusion of separation of powers is thus created, while the critical oversight of the courts is significantly curtailed Even in the event that procedural protections could be introduced that would ensure proper consideration of a child s capacity under the Criminal Code, children who have been associated with armed forces or armed groups are first and foremost children, and victims of grave human rights abuses. According to UNICEF, children who have been associated with armed forces or armed groups should never be prosecuted solely based on that association. Where children are prosecuted for these associations or related crimes, the individual concerned must be provided with the guarantees and protection of international juvenile justice standards. 10 A further discussion of the context of children involved in armed conflict and the relevance of a child s evolving capacities is below at section 6 of this submission. 5.6 It is also unclear what the proposed Bill would mean in practical terms for many children who are potentially associated with terrorist groups and activities. For example, girls who hold Australian citizenship and who are associated with armed groups or armed forces through early or forced marriage arrangements. UNICEF Australia expresses serious concerns regarding the lack of clarity regarding the intent 8 Sections 33AA(10), 35(9) and 35A(9). See also Explanatory Memorandum, paragraphs 48, 83 and Australian Bar Association, ABA says Citizenship Bill remains dangerously broad, 29 June Accessed at on 16 July General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) Accessed at: on 16 July 2015.

9 Australian Citizenship Amendment (Allegiance to Australia) Bill of the purpose of the Bill and potential unintended consequences for children and families. 6. The proposal is not compatible with the rights of the child 6.1 As a party to the Convention on the Rights of the Child, Australia has an obligation to treat the best interests of the child as a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. 11 Clearly, ceasing or revoking a child s citizenship is a serious outcome, with far reaching consequences for children and their families. Subsequently, the best interests of the affected child must be a primary consideration of decision makers in relation to both the process of determining to cease or revoke citizenship, and the ultimate outcome for the child. 6.2 The Committee on the Rights of the Child has explained that the child's best interests is a threefold concept: (a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court. (b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation. (c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. 11 Convention on the Rights of the Child (CRC), article 3(1).

10 Australian Citizenship Amendment (Allegiance to Australia) Bill Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child s best interests; what criteria it is based on; and how the child s interests have been weighed against other considerations, be they broad issues of policy or individual cases The Explanatory Memorandum recognises that the proposals in the Bill present a system in which the best interests of the child have been determined to be of lesser importance to other concerns and that this right is limited by the proposals. 13 UNICEF Australia is deeply concerned that despite this acknowledgement, the proposals have still been made without thorough and due consideration of the full extent of human rights affected. The arrangements proposed by the Bill, together with the existing and continued operation of section 36 of the Citizenship Act 2007 (Cth), are not consistent with the best interests of the child. 6.4 Ceasing or revoking a child s citizenship cannot be considered in the best interests of the child for multiple reasons. Whether a child is in Australia or abroad, Australia owes an obligation to protect the child from all forms of violence and exploitation. Far from meeting this duty to protect children from violence and exploitation, ending the citizenship of the child is likely to considerably increase the risk that the child will be exposed to significant child protection concerns. Severing the child s connection with Australia could risk rendering the child effectively stateless and without protection. Although the Minister is prevented from revoking a child s citizenship in the event that doing so would render a child stateless, 14 in practice second or third states where affected people hold citizenship may be unwilling to permit a return, or unable to provide required protection and support. It is possible also that, with the increase of laws which purport to cease the citizenship of a person based on security measures, a person (including a child) might have citizenship in two or more nations where citizenship might be ceased in similar circumstances (related to allegiance and terrorist related offences). As such, it is conceivable that there could be a race to cease the citizenship of a child, which might, in effect, render a child without the protection of any state. 12 Committee on the Rights of the Child, General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC/C/GC/14 at para See, for example, the Statement of Compatibility with Human Rights, para. 38 and Conclusion. 14 Section 36(3) of the Citizenship Act 2007 (Cth).

11 Australian Citizenship Amendment (Allegiance to Australia) Bill Revoking or ceasing citizenship also poses a threat to a child s connection with family, education, health, nationality, identity and standard of living. A child may have lived in Australia for the entirety of his or her life and be completely uprooted by his or her citizenship being ceased or revoked. The identity of the child can be intrinsically linked with his or her community and country. The proposals in the Bill, together with the existing sections of the Citizenship Act 2007 (Cth), fundamentally threaten a child s entire identity. This potentially threatens the rights of the child as outlined in article 8 of the CRC which guarantees the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference. 6.6 It should be noted that although the Explanatory Memorandum states that in exercising discretion to revoke a child s citizenship the Minister must take into consideration all relevant circumstances, including the best interests of the child, 15 there is no specific obligation for the Minister to consider the best interests of the child, nor are the best interests required to be taken as a primary consideration as required by the CRC. As such, there is a risk that the Minister might not take the best interests of the child into consideration at all, and if it is taken into consideration, it might not be taken as a primary consideration as required by the CRC. It is extremely concerning that neither the procedure nor the outcomes available to the Minister adequately protect the best interests of the child nor mandate that they be a primary consideration in decision making. 6.7 Additionally, the Bill specifically states that the Minister is not required to notify the person of the reasons for the decision. 16 Practically therefore, it will likely be impossible to determine whether the best interests of the child were taken into account as a primary consideration. Without merits review in any event, any potential challenge to the application of the Bill, will, if possible, be limited to determining whether an error of law was made, meaning that the content of the best interests consideration would be difficult, if not impossible, for a court to review. This system therefore falls short of the requirement outlined above relating to the procedural aspects of the best interest consideration, namely, that the best interests must be taken into account as a primary consideration when making the decision (and in the substantive decision) and also that the justification of a decision must show that the right has been explicitly taken into account. Further discussion of safeguards against errors or abuse is below at section 7 of this submission. 15 Explanatory Memorandum, para Sections 33AA(10), 35(9) and 35A(9). See also Explanatory Memorandum, paragraphs 48, 83 and 119.

12 Australian Citizenship Amendment (Allegiance to Australia) Bill For these reasons, the proposal in the Bill, together with the existing operation of section 36 of the Citizenship Act 2007 (Cth), are not consistent with the rights of the child, including the best interests of the child. SCENARIO 1: The child is not personally implicated, but has his or her citizenship revoked in circumstances where the Australian citizenship of a responsible parent/s has ceased 6.9 UNICEF Australia is seriously concerned that the operation of section 36 of the Citizenship Act 2007 (Cth), whereby a child can have his or her citizenship revoked in circumstances where a responsible parent has had their citizenship revoked, and the additions to this section as proposed by the Bill, is entirely inconsistent with numerous rights of the child The Committee on the Rights of the Child has raised specific concerns and recommendations regarding the power to revoke the citizenship of a child, irrespective of the reason behind such action. Specifically, the Committee commented in its 1997 Concluding Observations in relation to Australia: The Committee is concerned that in some instances, children can be deprived of their citizenship in situations where one of their parents loses his/her citizenship In 2012, the Committee again expressed concern about this issue, stating: The Committee further recommends that the State party undertake measures to ensure that no child is deprived of citizenship on any ground regardless of the status of his/her parents The Australian Human Rights Commission has also previously raised concerns about the discretion of the Minister to revoke the citizenship of children whose responsible parents cease to be citizens, previously recommending to the Senate 17 Committee on the Rights of the Child, Consideration of Reports submitted by States parties under article 44 of the Convention Concluding observations of the Committee on the Rights of the Child: Australia, sixteenth session, 21 October 1997, CRC/C/15/Add. 79. para Committee on the Rights of the Child, Consideration of Reports submitted by States parties under article 44 of the Convention Concluding observations of the Committee on the Rights of the Child: Australia, sixtieth session, 28 Australia 2012, CRC/C/AUS/CO/4. para. 38.

13 Australian Citizenship Amendment (Allegiance to Australia) Bill Legal and Constitutional Legislation Committee on the Australian Citizenship Bill 2005 that: Proposed section 36 (discretion to revoke the citizenship of children whose responsible parents cease to be citizens) be removed from the Bill so as to comply with Australia's obligations under article 8 of the Convention on the Rights of the Child. The Bill should also be amended to include a general obligation to take into account the best interests of children as a primary consideration in all decisions which affect them (as required by article 3 of the Convention on the Rights of the Child) In the context of the criminal justice system, it would be inconceivable for a child to be punished on the basis of the criminal conduct of a parent. Likewise, it should be inconceivable that a child should suffer very serious consequences in relation to his or her citizenship on the basis of the conduct of a responsible parent. UNICEF Australia strongly urges the Australian Government to ensure that children are not deprived of their citizenship on any grounds, including on grounds connected with the conduct of a responsible parent. SCENARIO 2: A child s own conduct brings them under the operation of sections 33AA, 35 or 35A 6.14 As outlined above, UNICEF Australia emphasises that ceasing or revoking a child s citizenship in any circumstances is inconsistent with the rights of the child. This applies irrespective of whether the child is affected by virtue of the conduct of a responsible parent or in circumstances where the child comes directly under the operation of the provisions of the Bill by virtue of his or her own conduct, namely, where the department considers that the child has acted inconsistently with their allegiance to Australia (section 33AA), engaged in service outside Australia in armed forces of an enemy country or a declared terrorist organisation (section 35) or where a child has been convicted for terrorism offences and certain other offences (section 35A). Not only is ending a child s citizenship inconsistent with the rights of the child, it is a response that seems formulated without a full and proper understanding of the 19 Australian Human Rights Commission (formerly the Human Rights and Equal Opportunity Commission), submission to the Senate Legal and Constitutional Legislation Committee on the Australian Citizenship Bill 2005, 20 January Accessed at: on 15 July 2015.

14 Australian Citizenship Amendment (Allegiance to Australia) Bill ways in which children can find themselves involved in armed conflict (including terrorist related activities and others listed in the Bill). It also seems to be formulated without a full and proper understanding of how governments and communities can best act to help ensure that children are less vulnerable to radicalisation through addressing social isolation and exclusion, community education and encouraging cross cultural dialogue and community cohesion. The conduct of the child therefore warrants a deeper consideration and understanding of the following: the context of children involved in armed conflict, including terrorist related activities and the right to special protection; the evolving capacities of the child; and the need for durable solutions - demobilisation, rehabilitation and reintegration. Each of these points will be discussed below UNICEF Australia holds serious and particular concerns about the proposal in sections 33AA and 35 which purport to provide for the automatic cessation of citizenship of those people (including children) who are determined to have renounced their citizenship on the basis of acting inconsistently with their allegiance to Australia 20 or who are determined to have served in the armed forces of a country at war with Australia or fight for or is in the service of a declared terrorist organisation. 21 The Explanatory Memorandum states [t]he operation of these provisions are by operation of law and do not necessitate the Minister making a decision. That is, a person s own conduct, specified in the new sections 33AA, 35 and 35A will be the cause of the person s citizenship to cease. 22 However, it seems that the operation of the Bill necessitates that a person assess and determine that the individual in question has, in fact, engaged in the conduct outlined in sections 33AA and 35 so as to trigger the giving of the written notice as required. 23 Only section 35A involves a court by virtue of the fact that this section requires a conviction. As outlined above at section 5 of this submission, UNICEF Australia is deeply concerned that this purported automatic cessation, 24 particularly as proposed in sections 33AA and 35, lacks due process and procedural fairness protections that are designed to ensure the rights of those affected are upheld throughout the process and also in outcome. The President of the Australian Bar 20 Section 33AA. 21 Section Explanatory Memorandum, page Sections 33AA(6), 35(5) and 35A(5). 24 See Explanatory Memorandum, page 2, paragraphs 20, 34, 93, 102 and 143.

15 Australian Citizenship Amendment (Allegiance to Australia) Bill Association, Fiona McLeod SC, has also raised concerns about this issue, stating: [a]ny proposal which suggests that a Minister might assume the power to take action impacting upon fundamental rights of citizenship before a criminal conviction has been secured is deeply troubling. 25 The context of children involved in armed conflict, including terrorist related activities, and the right to special protection 6.16 An estimated 300,000 children globally are currently directly involved in armed conflict. 26 Approximately 40% of this group are girls. 27 Children are often recruited as fighters, human shields, porters, cooks, messengers, spies and for the purpose of sexual exploitation and forced marriage As noted above, the Australian Prime Minister has recently acknowledged that in the context of Australia, some of the 250 Australians thought to be currently fighting abroad are very young, including children The involvement of children in armed conflict and violence is first and foremost a child protection issue. UNICEF has explained that: Many [children] have been recruited by force, though some may have joined as a result of economic, social or security pressures. Situations of displacement and poverty make children even more vulnerable to recruitment Properly named, the involvement of children in any form of armed conflict constitutes a grave violation of human rights and potentially a war crime. It exposes children to violence contrary to article 19 of the CRC and in particular, sexual violence, which is an increasing characteristic of conflict. Understanding this should 25 Australian Bar Association, ABA opposes revocation of citizenship without conviction (19 June 2015). Accessed at: on 16 July UNICEF, Factsheet: Child soldiers, Accessed at: on 16 July War Child, Child Soldiers, Accessed at: on 16 July World Health Organization Healing child soldiers at 13 July Bulletin of the World Health Organization, Past issues Volume 87: 2009, Volume 87, Number 5, May 2009, Prime Minister of Australia The Hon Tony Abbott MP A message from the Prime Minister, 24 May Accessed at: on 17 July UNICEF, Child protection from violence, exploitation and abuse Child recruitment by armed forces and armed groups, 22 March Accessed at: on 13 July 2015.

16 Australian Citizenship Amendment (Allegiance to Australia) Bill also underpin responses to children involved in armed conflict, regardless of whether or not their involvement appears to be voluntary or not. The International Criminal Court has recognised that the concept of free, prior and informed consent does not exist for children associated with armed forces or armed groups. 31 It has established that a distinction between forced enlistment or involvement and voluntary enlistment or involvement has no true meaning. Even the most voluntary of acts committed by children must be understood in relation to children having limited options in a context of war, violence and hostility No child should be involved in armed conflict. Regardless how they are recruited, or their role in armed forces or armed groups, their association with armed conflict is a serious child protection issue and a grave violation of their rights. Children who have been associated with, or involved in, armed conflict have often experienced, and frequently witnessed indiscriminate killing and sexual violence. The physical and psychological impact on children and their communities across generations cannot be underestimated As a signatory to the CRC, Australia s obligation is to all Australian citizens under the age of 18 and the Government has a responsibility to support the return, repatriation, rehabilitation and safe reintegration of children exposed to violence in known conflict zones Far from protecting the child from violence and exploitation in accordance with article 19 of the CRC, the proposal to end the Australian citizenship of the child seems to represent a withdrawal of these protection responsibilities. In the outcome document of the United Nations General Assembly s special session on children in 2002, A World Fit for children, States, including Australia, made commitments to protect children from violence. Amongst other things, Australia resolved to [p]rotect children from the impact of armed conflict and ensure compliance with international humanitarian law and human rights law To that end, States such as Australia promised to: 31 Grag, R., The International Criminal Court and Child Soldiers. Journal of International Criminal Justice. V10(4) 2012, pp Accessed at: 32 Jorgensen, N., Child Soldiers and the Parameters of International Criminal Law. Chinese Journal of International Law. V11 (4) 2012, pp Report of the Ad Hoc Committee of the Whole of the twenty-seventh special session of the General Assembly, A world fit for children, Plan of Action, strategies and actions, Twenty-seventh special session, 11 October 2002, A/S-27/19/Rev.1, paras 43(b).

17 Australian Citizenship Amendment (Allegiance to Australia) Bill End impunity for all crimes against children by bringing perpetrators to justice and publicizing the penalties for such crimes; [and] Promote the establishment of prevention, support and caring services as well as justice systems specifically applicable to children, taking into account the principles of restorative justice and fully safeguard children s rights and provide specially trained staff that promote children s reintegration in society In this regard, it is commendable that the Australian Government has supported community-based initiatives through its Countering Violent Extremism (CVE) program. As the Government acknowledges communities are best placed to develop solutions to local problems 35 and funding through such preventative programs is important to help meet the commitment outlined above and to keep communities safe. However, it is difficult to see how the proposals to broaden the circumstances in which a person (including a child) can have his or her citizenship stripped as outlined in the Bill are reflective of this commitment to rehabilitate and adopt restorative justice approaches UNICEF and our implementing partners have decades of applied experience in investigating grave violations of children s rights, and demobilising, rehabilitating and reintegrating children who have been associated with armed forces or armed groups. We have a practical understanding of the complexity of the situation of affected children who are frequently both the victims of abuse and the perpetrators of abuse. The proposed Bill does not properly consider the real life experiences of children, including effective preventative measures to ensure that previously affected children do not become re-radicalised or reconnected with armed forces or armed groups. It is important to note that there are multiple ways for children to be held accountable for their actions, with due consideration to their maturity and capacity. The evolving capacity of children 6.26 Article 5 of the CRC recognises the evolving capacity of children, and recognises that children in diverse environments and cultures, who are faced with diverse life experiences, will acquire competencies and mature at different ages. Article 5 of the 34 Report of the Ad Hoc Committee of the Whole of the twenty-seventh special session of the General Assembly, A world fit for children, Plan of Action, strategies and actions, Twenty-seventh special session, 11 October 2002, A/S-27/19/Rev.1, paras Attorney-General s Department, Countering violent extremism. Accessed at: 17 July 2015.

18 Australian Citizenship Amendment (Allegiance to Australia) Bill CRC further recognises that the development of competencies may vary considerably according to a child s specific circumstances and context, including levels of parental support and expectations The concept of evolving capacity allows for children s capacity to differ according to the nature of the rights being exercised. Children therefore require varying degrees of protection, participation and autonomous decision-making in different contexts and across different areas of decision-making The capacity of the individual child must be reasonably considered as part of any decision-making in relation to children who have been associated with armed forces or armed groups. Noting that adolescence is a particular period of a child s development when they are developing their personal identities, testing early stage adult thinking and developing their own sense of meaning. 36 Noting that children still require the appropriate levels of protection from their parents and the state while they are developing and their capacities are still evolving UNICEF has identified some of the factors that may assist us in assessing a child s capacity including: an ability to understand and communicate relevant information being able to understand available alternatives, express clear preferences, articulate concerns and ask relevant questions. an ability to think and choose with some degree of independence has the child been able to exercise a choice without coercion or manipulation, and is the child capable of thinking through issues for themselves? an ability to assess the potential for benefit, risk and harm understanding the consequences of choices, the associated risks and the long-term implications. a demonstrated achievement of a reasonably stable set of values confirming that the child has a consistent value base from which to make decisions It is unclear how or if the proposed Bill will take these considerations into account in assessments of children who may have engaged in conduct outlined in sections 33AA and United Nations General Assembly, Promotion and Protection of the Rights of Children Impact of armed conflict on children Note by the Secretary-General. Fifty-first session. 26 August A/51/306 at para UNICEF Innocenti Research Centre, The Evolving Capacities of the Child (2005). Accessed at: on 15 July 2015.

19 Australian Citizenship Amendment (Allegiance to Australia) Bill The need for durable solutions - demobilisation, rehabilitation and reintegration 6.31 A number of international human rights treaties ratified by Australia carry obligations in relation to the treatment of children who have been involved in armed conflict. In particular, in any response the Government is to have due regard to its obligations to: protect children affected by armed conflict (Article 38, CRC); rehabilitate child victims (Article 39, CRC); and demobilization, the provision of physical and psychological recovery and social reintegration of persons used in hostilities (Article 6(3), Optional Protocol); and rehabilitation and social reintegration of persons who are victims (Article 7(1), Optional Protocol) The Committee on the Rights of the Child in its Concluding Observations regarding Australia s compliance with the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict has said: In light of its obligations under article 7 of the Optional Protocol, the Committee urges the State party to Provide children who have been or may have been involved in armed conflict with appropriate assistance for their physical and psychological recovery and their social reintegration UNICEF Australia is concerned that the proposals in the Bill, namely, to cease the citizenship of persons, including children, thought to be implicated in terrorist or other offences or are said to have acted inconsistently with their allegiance to Australia, have been formulated without due regard to these obligations relating to protection and rehabilitation. 7. The proposed limitation on the rights of the child has not been demonstrated to be necessary, reasonable and proportionate 7.1 Accepting that the Bill limits the rights of the child as the Explanatory Memorandum does 39, the limitation must be assessed to determine whether it is a permissible 38 Committee on the Rights of the Child, Consideration of reports submitted by States parties under article 8, paragraph 1 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict Concluding Observations: Australia, sixtieth session, 11 July 2012 CRC/C/OPAC/AUS/CO/1 at para. 25(c). 39 See, for example, the Statement of Compatibility with Human Rights, paragraph 38 and Conclusion.

20 Australian Citizenship Amendment (Allegiance to Australia) Bill limitation. The UN Human Rights Committee has explained that to be permissible, restrictions must be provided by law, must be necessary in a democratic society for the protection of these purposes and must be consistent with all other rights recognized in the Covenant Likewise, the Attorney-General s Department has acknowledged that for all limitations of human rights to be permissible, the following criteria must be met: 1) The limitation must be prescribed by law; and 2) The limitation must pursue a legitimate objective and be reasonable, necessary and proportionate. 41 The limitation must be prescribed by law 7.3 The requirement that a limitation be prescribed by law is a very important guarantee in the rule of law and requires a legal basis for the restriction. 42 The UN Human Rights Committee has explained in the context of article 12 of the ICCPR regarding freedom of movement the requirement as follows: For the purposes of paragraph 3, a norm, to be characterized as a law, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not (references omitted) UNICEF Australia is concerned that, as outlined throughout this submission, the face of the Bill is very vague, proposes a process that is lacking in procedural fairness and lacks clarity around who will, in effect, assess whether a person s conduct falls within the Bill, what evidence the assessor will use, what standard of proof the assessor will 40 UN Human Rights Committee (HRC), CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9. Available at: on 16 July 2015 at para Attorney-General s Department Permissible limitations. Accessed at: mitations.aspx on 13 July Australian Human Rights Commission, Background paper: Human rights in cyberspace. Accessed at: on 16 July Human Rights Committee, General Comment No. 34, Article 19: Freedoms of opinion and expression, para. 25.

21 Australian Citizenship Amendment (Allegiance to Australia) Bill adopt or what, if any, rules of evidence apply. Additionally, the Bill adopts potentially problematic concepts such as acting inconsistently with an allegiance to Australia, in addition to adopting use of declared terrorist organisation under the Criminal Code which itself is also problematic. In the circumstances, considerable questions exist around the legality of the Bill. The limitation must pursue a legitimate objective and be reasonable, necessary and proportionate 7.5 The Human Rights Committee has considered the meaning of necessary and proportionate, stating in relation to article 12 ICCPR regarding freedom of movement: Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected Consideration of whether a limitation of rights pursues a legitimate objective and is reasonable, necessary and proportionate requires consideration of the purpose of the Act. Section 4 Purpose of the Bill states: This Act is enacted because the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia. 7.7 UNICEF Australia is concerned that section in fact provides a values-based statement and not a clearly articulated purpose as such. Interpreting this section could be highly problematic. The Australian Bar Association has likewise commented 44 UN Human Rights Committee (HRC), CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9. Accessed at: on 16 July 2015 at para. 14.