AUSTRALIAN CITIZENSHIP AMENDMENT (ALLEGIANCE TO AUSTRALIA) BILL 2015

PARLIAMENTARY JOINT COMMITTEE ON INTELLIGENCE AND SECURITY AUSTRALIAN CITIZENSHIP AMENDMENT (ALLEGIANCE TO AUSTRALIA) BILL 2015 JULY 2015 The Refugee Council of Australia (RCOA) is the national umbrella body for refugees, asylum seekers and the organisations and individuals who work with them, representing over 200 organisations and 1,000 individual members. RCOA promotes the adoption of humane, lawful and constructive policies by governments and communities in Australia and internationally towards refugees, asylum seekers and humanitarian entrants. RCOA consults regularly with its members, community leaders and people from refugee backgrounds and this submission is informed by their views. RCOA welcomes the opportunity to provide feedback on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. For refugee and humanitarian entrants (particularly those who are stateless), Australian citizenship often has a special significance, representing the culmination of their journey and the end of their displacement. RCOA is therefore concerned that the measures proposed in this Bill are likely to undermine the values and principles of citizenship. In particular, we are concerned that the Bill will allow citizenship and its associated rights to be revoked without due process, and may increase the risk of both refoulement and indefinite detention for people from refugee backgrounds. We therefore recommend that the Bill be rejected in its entirety, and that the Australian Government consider adopting measures to increase social inclusion and participation within the wider community as a more effective way of preventing terrorism. 1. Significance of citizenship for refugee and humanitarian entrants 1.1. The right to a nationality is an essential human right. Article 15 of the 1948 Universal Declaration of Human Rights declares that everyone has the right to a nationality. Nationality creates rights and duties for both the State and the individual. These rights or duties are not available to a person without citizenship, resulting in a lack of opportunity, protection and participation. Citizenship is also essential in realising a number of other human rights, such as the right to take part in political affairs. While human rights apply globally, citizenship is the main way through which people can access these rights. 1.2. Citizenship has particular significance for refugee and humanitarian entrants. Refugees are, by definition, unable to return to their country of origin because of a well-founded fear of persecution or other forms of serious harm. Australian citizenship is therefore often the first effective and durable form of protection that many refugees receive, and is celebrated and cherished by them. For those who know what it is like to live without freedom and democracy, obtaining citizenship in a free and democratic country can be particularly meaningful. As one former refugee noted in RCOA s community consultations: Having a citizenship is highly valued. It gives you equal rights and equal protection for the first time. Refugees are honoured to have an Australian citizenship and we appreciate the rights, protection and obligations that comes with it. If we didn t have an Australian citizenship we would have nowhere to go. Sydney office: Melbourne office: Suite 4A6, 410 Elizabeth Street Level 2, 313-315 Flinders Lane Surry Hills NSW 2010 Australia Melbourne VIC 3000 Australia Phone: (02) 9211 9333 Fax: (02) 9211 9288 Phone: (03) 9600 3302 admin@refugeecouncil.org.au melbourne@refugeecouncil.org.au Web: www.refugeecouncil.org.au Twitter: @OzRefugeeCounc Incorporated in ACT ABN 87 956 673 083

1.3. The acquisition of citizenship plays a central role in resolving the situation of refugee and humanitarian entrants. This is recognised by the 1951 Refugee Convention, which requires its signatories to as far as possible facilitate the assimilation and naturalisation of refugees and make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings. Further, two of the three durable solutions for refugees promoted by the United Nations High Commissioner for Refugees (UNHCR) local integration and resettlement rely on refugees becoming citizens of another country. 1.4. International research provides evidence that people from refugee backgrounds are more likely than other migrants to invest in country-specific human capital, including through obtaining citizenship, because they lack the option to return to their homelands. 1 For many refugee and humanitarian entrants, obtaining citizenship represents the culmination of their journey: the point at which they are no longer displaced; can rebuild their lives in safety and security; and feel the sense of belonging which was denied to them in their country of origin. 1.5. Citizenship has even greater significance for stateless people, who by definition are not recognised as nationals of any country. The status of stateless people can only be resolved by obtaining citizenship. Under the 1954 Convention Relating to the Status of Stateless Persons, Australia is required to make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings. This is similar to its obligations under the Refugee Convention. 1.6. RCOA therefore encourages the Australian Government to consider the specific impacts of the Bill on refugee and humanitarian entrants and stateless people. We are also concerned more broadly that such measures would undermine the principles of citizenship. Citizenship is a vital bond between people and their country, and this Bill would undermine the strength of this bond by enabling citizenship to be more readily revoked. 2. Revocation of citizenship from Australians suspected of involvement in terrorism 2.1. RCOA understands the need to take appropriate action to prevent terrorism and ensure that people who engage in terrorist activities are held accountable for their crimes. Indeed, many refugees and asylum seekers who have sought protection in Australia have fled from terrorism and related conflicts. Afghan refugees fleeing the Taliban and Syrian and Iraqi refugees fleeing ISIS are just some of many examples of people who have left their country because of terrorism. If Australia is indeed concerned about the impact of terrorism in the world, it should be doing more to protect those affected by terrorism. 2.2. While recognising the need to take appropriate action to prevent terrorism, RCOA is very concerned by the proposal in the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 that dual nations suspected of having committed a terrorist offence would automatically renounce their Australian citizenship. Citizenship is a fundamental right and should only be revoked as a last resort. Depriving a person of citizenship can only be justified if the action is necessary, lawful and proportionate. RCOA believes the current proposals do not meet these requirements. 2.3. Under Article 15 of the Universal Declaration of Human Rights, the deprivation of citizenship cannot be arbitrary. Any revocation of citizenship must be set out in law, proportionate and necessary to the harm it seeks to prevent. As noted by the UN Human Rights Council: The consequences of any withdrawal of nationality must be carefully weighed against the gravity of the behaviour or offence for which the withdrawal of nationality is prescribed. 2 2.4. RCOA does not believe the proposed laws are proportionate to the harm they seek to prevent. While terrorism must be addressed, RCOA believes that the Government has not sufficiently justified the 1 See RCOA s literature review on the economic, civic and social contributions of refugees and humanitarian entrants, available at http://www.refugeecouncil.org.au/r/rpt/2010-contributions.pdf. 2 Human Rights Council, Human rights and arbitrary deprivation of nationality, 19 December 2013, U.N. Doc. A/HRC/25/28.

introduction of such serious measures. There is little evidence that the automatic renunciation of citizenship would have a significant impact on preventing terrorist activities, either in Australia or overseas. 2.5. RCOA also believes that the proposed laws are likely to violate Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR), which provides that no one shall be arbitrarily deprived of the right to enter his own country. As the UN Human Rights Council in its General Comment on Article 12(4) of the ICCPR explain: In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country. 3 2.6. It should be noted that under international law, references to a person s own country are broader than the country of his or her nationality and a country can continue to be considered a person s own country even after their citizenship is revoked. 4 As such, even if an individual has been deprived of their nationality, it is likely that the person would still have the right to enter and reside in that country, as their own country. 5 Furthermore, the UN Human Rights Council has stated that punishment by exile is not compatible with the Covenant. 6 In addition, Article 9 of the draft articles on the expulsion of aliens recently adopted by the International Law Commission provides that a State shall not make its national an alien, by deprivation of nationality, for the sole purpose of expelling him or her. 7 As such, any law which seeks to revoke a person s citizenship for the purpose of expelling them from Australia or preventing them from returning to Australia is likely to violate international law. 2.7. The Australian Government must also consider carefully its obligations towards countries which may become responsible for resolving the status of people when Australian citizenship is revoked under this Bill. If Australia was to revoke a person s citizenship while the person is overseas, this responsibility will likely fall on the country in which they happen to be residing at the time. In our view, it is not appropriate for Australia to deflect its responsibilities for its citizens in this manner, particularly where the former citizen has lived most or all of their lives in Australia, has no meaningful connection to any other country, and does not hold citizenship in the country in which they are living. If Australia is genuinely concerned about the security risks posed by dual nationals who may have been involved in terrorism overseas, it is not reasonable for Australia to expect other countries to shoulder these risks instead. 3. Broad application of provisions 3.1. RCOA has serious concerns regarding the kinds of offences which can result in the automatic renunciation of citizenship. For example, proposed section 35A(3)(e) provides that a person ceases to be an Australian citizen if they are found guilty of the offence of intentionally destroying or damaging Commonwealth property under s 29 of the Crimes Act 1914. The effect of this Bill would be to revoke a person s citizenship even if a person caused very minor damage and posed no threat 3 Human Rights Committee, CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, CCPR/C/21/Rev.1/Add.9, para 21. 4 See Nystrom v Australia (1557/07), in which a non-citizen s strong ties to Australia, including the location of his family and his language, meant that Australia was his own country for the purposes of Article 12(4). See also Warsame v Canada (1959/10). 5 Human Rights Committee, General Comment No. 27 on Freedom of Movement, para. 20. 6 Human Rights Committee, Concluding Observations on the Dominican Republic, (1993) UN doc CCPR/C/790/Add.18, para 6. 7 Report of the 64th Session: UN doc. A/67/10 (2012), Chapter IV, Expulsion of aliens, 9, 13, 32-3.

to the safety of others. In RCOA s view, such a serious penalty in these circumstances would be seriously disproportionate to the gravity of the offence. 3.2. We also question whether the offence of damaging Commonwealth property necessarily poses a risk to Australia s national security. The provisions of the Bill appear to apply to offences which are entirely unrelated to terrorism. A person who sprays graffiti on the wall of a Commonwealth building or damages a computer in the office of a Government department, for example, could be found guilty of damaging Commonwealth property and thereby automatically renounce their citizenship, despite the fact that there was no risk to national security. 3.3. In addition, we are concerned that a person would automatically lose his or her citizenship by committing less serious terrorism offences. These include the crimes of advocating terrorism (maximum five years imprisonment), 8 urging violence against a group or a member of a group (maximum five or seven years imprisonment), 9 or urging violence against the Constitution, the Government, a lawful authority of the Government, an election, or a referendum (maximum seven years imprisonment). 10 3.4. The effect is to increase the punishment for these offences from five to seven years imprisonment to the extraordinary punishment of losing Australian citizenship for life. These crimes carry less severe penalties precisely because they are less serious crimes and pose a less significant threat to safety than, for example, engaging in or financing terrorist acts. It is not, in our view, appropriate to impose such a harsh penalty in these circumstances, and indeed this may be considered an arbitrary deprivation of citizenship. 3.5. RCOA is also concerned that the new measures introduced by the Bill will apply retrospectively. Retrospective legislation undermines fundamental principles of the rule of law, as it prevents people from being able to clearly understand their rights, obligations and potential consequences of their actions. As well, one of the Bill s stated aims is to deter Australians from engaging in terrorist-related conduct an effect it cannot possibly have on people who have already engaged in such conduct. Given the serious consequences involved, RCOA believes any retrospective application of the Bill would be clearly unjust. 4. Standard of proof and judicial oversight 4.1. The Bill would create a process where a person automatically renounces their citizenship through committing certain acts, at the time when the Minister issues a notice to that effect. RCOA has a number of serious concerns with these proposals, especially with regard to the standard of proof and the non-compellable discretion of the Minister. 4.2. The Bill fails to outline a clear standard of proof and procedure for establishing that someone has committed an act which would result in the renunciation of their citizenship. There is no requirement, for example, that a person must have been convicted of a terrorist offence. Indeed, proposed sections 33AA(12) and 35A allow the Minister to rely on intelligence information, including information that does not amount to a security assessment. RCOA is concerned that, without adequate safeguards, there is a significant risk that innocent people may unjustly lose their Australian citizenship. 4.3. The only apparent safeguard in the proposed process is the Minister s non-compellable discretion to rescind the notice and exempt a person from the revocation or cessation of his or her citizenship. However, the Bill clearly states that the rules of natural justice do not apply to this mechanism. RCOA believes this safeguard is wholly inadequate. The UN Human Rights Council notes that procedural safeguards are essential to prevent abuse of the law in relation to the deprivation of citizenship. 11 A non-compellable discretionary mechanism which does not adhere to even basic principles of justice is clearly not a sufficient safeguard. While judicial review may be available, this 8 Criminal Code Act 1995 s 80.2C 9 Criminal Code Act 1995 s 80.2A(1); Criminal Code Act 1995 s 80.2B(1). 10 Criminal Code Act 1995 s 80.2. 11 Human Rights Council, Human rights and arbitrary deprivation of nationality, 14 December 2009, U.N. Doc. A/HRC/13/34

will not provide an avenue for reviewing the merits of a particular case, and only limited scope for testing the evidence before the Minister. 4.4. In RCOA s view, a decision to revoke citizenship because of involvement in terrorist activities should at the very least require conviction by a court of a serious terrorism-related offence, and should be subject to a robust system of independent merits review. Without these safeguards in place, there is a real risk that innocent people could lose their citizenship unjustly. 5. Statelessness 5.1. Australia has a number of obligations relating to stateless people under international law, including Article 8 of the 1961 Convention on the Reduction of Statelessness, which prevents Australia from depriving a person of their nationality if it would render them stateless. While the 1961 Convention does allow for the deprivation of citizenship resulting in statelessness in some very limited cases, the UN Human Rights Council has noted that, due to the serious implications of statelessness, the deprivation of citizenship resulting in statelessness would be difficult to justify in terms of proportionality. 12 5.2. While RCOA understands that the Bill is intended to apply only to dual nationals, there is still a concern that the automatic cessation of citizenship could render people de facto stateless. While a person may hold citizenship of another country in name, that does not mean that a person could exercise those rights in fact. For example, many former refugees in Australia would remain nationals of their country of origin but, because of their well-founded fear of persecution or other serious harm, could not return there. As such, there is a risk that a dual national may become de facto stateless if their Australian citizenship ceases and they are unable to exercise their citizenship rights in another country. 5.3. It is also important to consider that Australia is be alone in seeking to revoke citizenship from dual nationals on security grounds. A person suspected of involvement in terrorist activities who was a dual national of both Australia and the UK, for example, would also be at risk of having their UK citizenship revoked. As such, RCOA believes that the application of the proposed measures only to dual nationals does not offer a sufficient safeguard against statelessness. 5.4. While the powers proposed in the Bill would only apply to dual nationals, RCOA would be greatly concerned if they were to be extended to people who are eligible for citizenship in another country but have not yet obtained it (as proposed in the discussion paper informing the National Consultation on Australian Citizenship 13 ). The revocation of citizenship in these circumstances would inevitably result in statelessness. As well, a person may be theoretically eligible for citizenship in another country, but may not be able to obtain citizenship of that country in practice. Indeed, the fact that their Australian citizenship has been revoked on security grounds is likely to present a significant barrier to obtaining citizenship in another country. 6. Non-refoulement and indefinite detention 6.1. RCOA has serious concerns that the proposed laws may heighten the risk of refoulement. The measures proposed in the Bill appear to presume that people who lose their citizenship under its provisions will be able to reside in another country. As already noted, however, many former refugees would not be able to return to their country of origin because of their well-founded fear of persecution. We believe that the Bill fails to adequately consider measures to prevent refoulement in cases where dual nationals cannot return to or reside in their other countries of nationality. 6.2. There is also a serious risk that the loss of a person s Australian citizenship may result in indefinite detention. If a person loses their Australian citizenship but cannot be returned to his or her other country of citizenship due to Australia s non-refoulement obligations, he or she may remain in 12 Human Rights Council, Human rights and arbitrary deprivation of nationality, 19 December 2013, U.N. Doc. A/HRC/25/28 13 See http://www.border.gov.au/citizenship/documents/your-right-your-responsibility-citizenship.pdf

indefinite detention for very long periods, as we are seeing today with the current indefinite detention of refugees who have received an adverse security assessment. 6.3. RCOA understands that those who are in Australia and have their citizenship revoked are automatically given an ex-citizenship visa under s35 of the Migration Act 1958. The ex-citizen visa is a permanent visa allowing the holder to remain in but not enter or re-enter Australia. However, recent legislative amendments mean that the Minister can now cancel a person s visa (even a permanent visa) if the Minister reasonably suspects that the person does not pass the character test, and the Minister is satisfied that the refusal or cancellation is in the national interest. As such, the deprivation of a person s citizenship, together with the Minister s power to cancel a permanent visa, could result in indefinite detention. 6.4. RCOA believes that Parliament must give greater consideration to mitigating the risks of refoulement and indefinite detention. At the very least, decision-makers should be required to consider potential refoulement concerns before a person s Australian citizenship is determined to have ceased and, if any such concerns are identified, the person should not be deemed to have renounced their citizenship. 7. Children and families 7.1. RCOA is deeply troubled that the measures are proposed to apply to children aged 10 and over. While there may be some offences for which people under the age of 18 can legitimately be held criminally responsible, we do not believe that it would be appropriate to impose such serious penalties on children involved in terrorist offences. In cases where Australian children are suspected of having committed terrorist offences, we believe any response must be strongly guided by child protection considerations. 7.2. If a child has committed such a serious offence at such a young age, this is likely to indicate that the child has been a victim of crime. As the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups 14 clearly state: Children who are accused of crimes under international law allegedly committed while they were associated with armed forces or armed groups should be considered primarily as victims of offences against international law; not only as perpetrators. They must be treated in accordance with international law in a framework of restorative justice and social rehabilitation, consistent with international law which offers children special protection through numerous agreements and principles. 7.3. A significant number of people have been granted protection or resettled in Australia as refugees precisely because they had been forcibly recruited as child soldiers or were at risk of being recruited. The Australian Government clearly recognises that children involved in armed conflict are in need of special care and protection. We therefore question why the same level of care and protection has not been extended to children involved in terrorist activities under the proposed Bill. 7.4. RCOA is also concerned that the Bill may unfairly penalise the innocent children and families of people who have committed terrorist offences. For example, the Bill gives the Minister for Immigration discretion to revoke the citizenship of children with dual nationality if their parents have had their citizenship revoked. In addition, if a partner or child of a former Australian citizen has not yet obtained Australian citizenship in their own right, he or she may be in danger of losing their right of residency in Australia or access to basic services (such as Medicare or income support) if their relative s citizenship ceases. 14 See http://www.unicef.org/emerg/files/parisprinciples310107english.pdf

8. Encouraging inclusion and participation in Australian society 8.1. RCOA believes that, to combat terrorism, the focus should be on promoting the inclusion and participation of all people in Australian society as the most effective way of preventing terrorism, as well as assisting Australians to reach their full potential. The strong emphasis on enforcement reflected in the current Bill is, in contrast, likely to contribute to feelings of exclusion and marginalisation. 8.2. The overwhelming majority of Australians from migrant and refugee backgrounds have been an asset to this country, are committed to Australia and pose no danger to the community. In responding to emerging security threats, RCOA believes it is imperative that the Government refrain from adopting measures which could weaken the core values underpinning the success of our cohesive multicultural society. 8.3. RCOA believes the Government should give further consideration to strategies for promoting the inclusion and participation of all people in our society. As part of this process, we encourage the Government to review policies which adversely affect the capacity of refugee and humanitarian entrants to settle successfully in Australia and contribute to their new communities. 8.4. There are currently a number of policies impeding refugee and humanitarian entrants from full inclusion into Australian society. These policies include: The denial of permanent residency and access to key settlement services to refugees who arrived in Australia without a valid visa, which undermines their ability to settle successfully in Australia and contributes to poor mental health outcomes. Limited access to family reunion opportunities to people from refugee backgrounds (including restrictions on access to family reunion for refugees who arrived without valid visas), which is likely to make it more difficult for people to recover from pre-arrival trauma, move on with their lives and fully engage with the settlement process (such as through learning English and securing sustainable employment). The serious negative impacts of prolonged indefinite immigration detention on health and wellbeing, which in turn undermine positive settlement outcomes for people who were formerly detained (particularly children). Negative political rhetoric (such as labelling asylum seekers who arrive by boat as illegal arrivals and describing refugees as a burden ), which can weaken community support for the Refugee and Humanitarian Program, fuel negative attitudes towards people from refugee backgrounds, and contribute to feelings of isolation and exclusion among refugee and humanitarian entrants settling in Australia. 8.5. RCOA would be happy to provide the Government with further information and detailed recommendations to assist in addressing these issues and promoting positive settlement outcomes for all refugee and humanitarian entrants in Australia, most of whom are likely to be future citizens. Recommendation 1 RCOA recommends that the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 be rejected in its entirety. Recommendation 2 RCOA recommends that the Australian Government give greater consideration to measures for promoting the inclusion and participation of all citizens in Australian society.

Recommendation 3 RCOA recommends that the Australian Government review policies which undermine positive settlement outcomes for refugee and humanitarian entrants and interfere with their successful settlement in Australia.