You may be surprised by how you could lose your citizenship
Allegiance will soon be a necessary condition of citizenship, under a new law designed by the Government to get around the constitutional problem that it can’t declare someone guilty of a crime, writes Michael Bradley.
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3. Acting inconsistently with your allegiance to Australia
This one is the kicker. I’m about 60 per cent convinced it’s constitutionally invalid, but assume it stands up. It’s been designed to avoid the constitutional problem that the Government can’t declare you guilty of a crime. Instead, it says that, if a dual citizen or a foreign national “acts inconsistently with their allegiance to Australia” by engaging in certain conduct, they will renounce their Australian citizenship. So, it’s like saying “I’m not Australian anymore”, except by actions instead of words.
Funny, I didn’t know that allegiance was a necessary condition of citizenship. Nobody’s ever asked me to declare it.
The list of conduct is very long: engaging in terrorist acts, financing terrorism, recruiting or training for a terrorist organisation, blowing things up overseas, and those “hostile activities” in foreign countries again. These are borrowed over from the Criminal Code, the critical distinction being that you don’t have to have been convicted, or even accused, of committing an actual offence.
You renounce your citizenship by doing the act, whatever it is, as soon as you do it. It’s automatic and self-inflicted.
So you’re no longer a citizen, according to the Act. Who will know? Obviously, it has no practical consequence until somebody notices and acts on it. That means the Government saying “hey, we’ve noticed you’re not a citizen anymore, so we’re deporting you”. What the bill says is that, when the Immigration Minister notices that you’ve renounced your citizenship by your actions, he has to give written notice of it to whoever he thinks he should. Presumably his own department, so it can track you down and kick you out of Australia or refuse you re-entry.
And there’s the problem. How does the Minister notice that you’ve renounced your citizenship? By noticing that you’ve done a particular thing. To illustrate by random example: say ASIO tells the Minister that you’ve been doing some public fundraising for a charity based in Syria. ASIO thinks the charity is a front for IS, and it thinks you’ve been reckless as to whether the funds will end up in terrorist hands. That’s the definition of financing terrorism in the Criminal Code, and if ASIO is right then you have renounced your citizenship.
The Minister says “thanks ASIO”, and deports you. To do that, he has to accept that the factual allegations are correct. You have no right to be heard before he does so. You can take your case to the courts where you’ll have the onus of proving that you honestly thought the Syrian charity was legitimate, which might not be of all that much comfort if you’re already on a plane to Damascus.
I’m not very comfortable with that.
Michael Bradley’s firm Marque Lawyers is presently advising Amnesty International Australia on the legal validity and effect of the bill referred to in this article.
Michael Bradley is the managing partner of Marque Lawyers, a Sydney law firm.