‘Disallegient conduct’ and citizenship stripping: Recent Australian developments

Rayner Thwaites

University of Sydney Law School

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In December 2015 new statutory powers of citizenship stripping for ‘disallegient conduct’ entered into force in Australia. In November 2018, a Bill was introduced into the Australian Parliament to expand the scope of one of these deprivation powers, debate on this Bill occupying Parliamentary committees through early 2019. The Bill lapsed on the dissolution of Parliament in April 2019, in anticipation of the federal election in May 2019. If the Bill is to be pursued, it will need to be reintroduced into the new Parliament. (On the prospects for reintroduction, I note simply that the party coalition that introduced the Bill in November 2018 was returned in the May elections). These changes to the law, successful and (to date) unsuccessful, described below, challenge current understandings of citizenship within Australian constitutional law.

These recent Australian developments with respect to citizenship stripping raise questions of interest to other constitutional systems. At issue is how citizenship, as a constitutional status, is understood.  Is citizenship status one term of a binary, such that everyone is, from an Australian constitutional perspective, either a citizen or an alien? Is an alien simply a person who is not a citizen under the relevant national legislation? Or are there additional conditions on citizenship, such that a person must both be eligible for citizenship under the relevant national legislation and not engage in certain proscribed conduct?

These issues arise in Australian constitutional law in addressing whether the citizenship deprivation measures are supported by a head of legislative power. Australia has a federal constitution, conferring enumerated heads of power on the national Parliament. There is no constitutional power over citizenship (the relevant membership status at the time of the Constitution’s drafting was that of British subject). In the absence of a constitutional power over citizenship, the High Court has consistently treated the “naturalization and aliens” power in s 51(xix) of the Constitution as a primary source of citizenship legislation.  The questions raised in the preceding paragraph go, in doctrinal terms, to whether the deprivation measures can be characterized as laws with respect to the aliens power.

At the centre of these Australian debates is the concept of allegiance (My account of allegiance draws on a comment co-authored with Professor Helen Irving, “Australian Citizenship Amendment (Allegiance to Australia) Bill 2015” (Cth) (2015) 26 Public Law Review 143-149). Allegiance has always been central to the distinction between citizen and alien, although it has taken a variety of forms in High Court jurisprudence over the years. Most recently, as the explanatory memorandum to the 2015 amendments noted (in its first and second iterations), in the 2006 case, Koroitamana v Commonwealth, the High Court of Australia confirmed a formal concept: “[A]n alien is a person who does not owe allegiance to Australia”, meaning simply that an alien is not a citizen, as defined under the Australian Citizenship Act 2007 (‘the Act’). A citizen’s allegiance to Australia is, under the prevailing formal conception, signified by their acquisition of citizenship under the Act.

This prevailing, formal, or ‘thin’, conception of alienage does not suffice to support the new citizenship deprivation powers. The new deprivation powers (and their proposed expansion under the 2018 Bill) rely on a shift in our understanding of allegiance as that concept is understood in Australian constitutional law.

I outline the amendments to the Citizenship Act made in December 2015, and those proposed in November 2018, before explaining the new concept of allegiance (and by extension constitutional citizenship) needed to support them, and the nature of the limits likely to attend any successful introduction of the new concept.

The 2015 amendments

In December 2015, three new powers of citizenship deprivation were introduced into Australian law. The first two of these apply to conduct engaged in outside Australia. The first power provides that where an Australian citizen acts “inconsistently with their allegiance to Australia” by engaging in certain conduct, defined with reference to certain terrorism offences under the Criminal Code (but not requiring conviction for those offences), they are taken to have renounced their Australian citizenship, where this is given effect through the (questionable) legal fiction of a ‘self-executing’ statute. A second provision provides that a person ceases to be an Australian citizen when they serve in the armed forces of a country at war with Australia (a provision of this form has existed on the Australian statute book since 1949, but has never been applied), or fights for, or in service of, a declared terrorist organisation.  The third provision, applying to conduct engaged in in Australia, carries the precondition that the person has been convicted of a listed offence (all of which carry a maximum sentence of at least 10 years imprisonment), and that they have been sentenced to at least six years imprisonment with respect to that offence. The listed offences encompass both terrorism offences and ‘other’ offences (sabotage, espionage and foreign interference).  These three powers of citizenship deprivation presently apply only to persons who are a citizen or national of a country other than Australia; i.e. to those who are dual, or multiple citizens. This is to avoid the creation of statelessness.

On the 2nd of January this year, the government stated that twelve Australians have been deprived of citizenship under the new powers introduced in 2015. To the best of the public’s knowledge, the power used in all twelve cases was the first of the mechanisms outlined above, that applying to ‘disallegient conduct’ engaged in outside Australia. No legal challenges have been made to these uses of the power (a practical contributor to this state of affairs is the fact that, to date, those deprived of Australian citizenship have been stripped of that status while in another country).

The 2018 Bill

The Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 (Cth) (the Bill) was introduced into the Australian Parliament on 28 November 2018. In the Bill, the government sought to expand the third mechanism detailed above, that which applies to conduct engaged in in Australia and for which a conviction for an offence is a precondition. The Bill seeks to add a new offence as a trigger for deprivation (namely “associating with terrorist organisations”). In a departure from the existing position, whereby the offences that can trigger deprivation all carry a maximum sentence of at least ten years, the offence the Bill proposed to add as a trigger carries a maximum sentence of only three years. In addition, the Bill seeks to remove the requirement that the sentence handed down with respect to the conviction be one of imprisonment for at least six years (though the Bill only removes this requirement for ‘terrorism’ offences, not for the ‘other’ offences; the reason for this distinction is left unexplained). In summary, should the Bill become law, a conviction for one of the listed terrorism offences (including “associating with terrorist organisations”), whatever the sentence, would render a person vulnerable to deprivation. (The Bill also sought, with respect to the third mechanism, to weaken the existing protections against statelessness and increase the power’s retrospective scope).

Key amendments proposed in the Bill dilute the seriousness of the conduct that can trigger deprivation, where seriousness is assessed both with respect to the maximum sentence an offence carries and the term of imprisonment to which a person is sentenced with respect to the relevant conviction.

The first few months of 2019 saw the publication of parliamentary committee reports and legal advices on the Bill (see the parliamentary report (with a legal advice as attachment A to the minority report); and  parliamentary submissions (for a helpful overview the submissions, see this publication by the Australian Parliamentary Library). As indicated above, the Bill lapsed on the dissolution of Parliament in April 2019. Before it lapsed, it encountered opposition, a central theme of which was that the Bill might, through overreach, lead to constitutional invalidity of the citizenship deprivation provisions. This was overt in the minority report on the Bill, authored by Opposition members of the Parliamentary Joint Committee on Intelligence and Security (PJCIS). While not overt in the report of the majority (composed of members of the party coalition in government), the majority’s recommendations did effectively defer passage of the Bill until after the election in May 2019 (see the PJCIS report). The constitutional issues sharpened by the Bill continue to be of interest. Powers allowing the government to unilaterally terminate an Australian’s citizenship for disallegient conduct remain, and they remain legally untested. With the constitutional boundaries of the deprivation powers unclear, future attempts to expand them remain in prospect.

A new, substantive, concept of allegiance

A particular concept of allegiance is central to both the legal justification of the citizenship deprivation powers introduced in 2015 and the expansion of those powers sought in the 2018 Bill. In the words of Minister introducing the 2015 amendments, the citizen’s duty of allegiance “was not created by the Citizenship Act, but…is recognised by it” (Minister’s Second Reading Speech). More particularly, the deprivation measures are predicated on the view that, to quote from the Explanatory Memorandum to the Bill introducing the 2015 amendments:

Australian citizenship is a common bond…[and] 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.

As noted by the Minister in the Second Reading Speech in 2015, and introduced above, the High Court “has found that an alien is a person who does not owe allegiance to Australia”. The government has sought to build on this formal definition. A terrorist, following the government’s legal theory, has demonstrably repudiated his or her allegiance to Australia and, ipso facto, it is constitutionally open to the government to deprive him or her of Australian citizenship.

The concept of allegiance the government relies on to support the deprivation powers differs markedly from that found in the prevailing jurisprudence. The context in which the current constitutional issues arise is quite distinct from earlier citizenship litigation. The governing High Court rulings on the scope of citizenship law have arisen with respect to individuals who argued that they were citizens but did not meet the Citizenship Act’s eligibility criteria. Such persons were held to be aliens because of their ineligibility for (statutory) citizenship. This conclusion was reached regardless of whether they held an alternative “allegiance”, and no further inquiry was made as to their degree of connection to Australia. In these cases, the conclusion that a person was identified as other than a statutory citizen was decisive. It will be a different matter to redefine citizens as aliens when their formal citizenship eligibility is not in doubt.

The deprivation powers rely on a substantive and multidimensional notion of disallegience for support. Certain forms of conduct are defined as “inconsistent with allegiance” to Australia and therefore leading, either automatically “by operation of statute”, or by way of intervening steps, to deprivation of citizenship. To define constitutional alienage in this way, with reference to a substantive concept of allegiance, makes the holding of citizenship conditional. It makes the determination of whether a person is a citizen into a two-part test: first, is the person eligible for citizenship under the formal rules found in the current legislation; and secondly, if formally eligible, is he or she otherwise disqualified, or vulnerable to disqualification, for having committed proscribed conduct?

The government’s reliance on this new, substantive conception of allegiance takes the High Court into uncharted waters. If this new concept of allegiance is accepted, what are its bounds? Presumably only conduct that represents demonstrable and intentional disallegiance could lead to citizenship deprivation.

What constitutes disallegience?

The Bill’s dilution of the seriousness of the conduct triggering deprivation (as well as the parameters set by the 2015 amendments) raises constitutional issues. Disallegiance on the part of the citizen cannot be ascribed to just any form of conduct. A citizen is defined, for constitutional purposes, as a non-alien and an alien lacks allegiance. That lack cannot be ascribed to just anything that the Parliament deems to be disallegiance. The High Court has repeatedly affirmed that Parliament cannot define alienage in any way it pleases. This is an application of the more general idea that Parliament cannot conclusively define the scope of its own power. To take a clear, and extreme, example, Parliament could not treat failure to pay a speeding fine as conduct constituting demonstrable and intentional disallegiance. There is a need for conceptual limits on what could constitute disallegient conduct leading to deprivation of citizenship.  Two possible limits are suggested with reference to the seriousness, and nature, of the conduct triggering deprivation.

The lower the government sets the bar for the seriousness of the conduct that triggers deprivation, the weaker becomes its argument that that conduct constitutes demonstrable and intentional disallegience. This is, in a loose sense, a question of proportionality. The less serious the triggering conduct, the greater the likelihood of a court holding that the sufficiency of connection between the law and the constitutional head of power relied on, the aliens power, is lacking. This is the argument motivating the recommendation of the minority report on the PJCIS review of the Bill – that the Bill not be passed in its current form.

Allegiance speaks to a relationship between citizen and state, and presumably offences that demonstrate disallegient conduct must share a common feature in the form of intentional harm to the state. Accepting that this focus on intentional harm to the state furnishes a contestable boundary, it may still serve as a basis for confining the constitutional scope of the deprivation power, preventing it from applying to serious criminality more generally. It is highly doubtful, for example, that the application of citizenship deprivation powers to sex trafficking offences, as has occurred in the United Kingdom, would pass constitutional muster as disallegient conduct in Australia, however egregious those crimes might be.

Rayner Thwaites is an ARC Discovery Early Career Researcher at the University of Sydney Law School.

Suggested Citation: Rayner Thwaites, ‘“Disallegient conduct” and citizenship stripping: Recent Australian developments’ IACL-AIDC Blog (28 June 2019) https://blog-iacl-aidc.org/membership-and-exclusion/2019/6/28/disallegient-conduct-and-citizenship-stripping-recent-australian-developments