Supplementary submission - Review of the amendments made by the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023

The Law Council of Australia provided a submission to the Parliamentary Joint Committee on Intelligence and Security (the Committee) for its review of the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (the 2023 Citizenship Amendment).¹

While the Law Council understands the importance of laws that are enacted to maintain the security of Australia and the safety of the Australian community, it is critical that such laws are necessary and proportionate, and that these objectives are supported by a demonstrated evidential basis.

Citizenship deprivation² measures challenge key political and legal principles on which our democracy was founded and demand careful consideration by the Commonwealth Parliament. Citizenship provides formal membership of the Australian community, which comes with privileges and responsibilities. Citizenship deprivation removes those privileges and has significant consequences for a person, including the potential for: deportation; detention; prevention from entering Australia; and no longer receiving consular assistance. The Law Council has consistently advocated that such measures should be reserved for the most extraordinary of cases.³

Australia should ensure that any citizenship deprivation regime does not amount to an arbitrary deprivation of nationality. In 2022, the then United Nations Special Rapporteur on human rights and terrorism indicated her view that citizenship is a ‘gateway right’ which enables the ‘right to have rights’, that is to say, ‘to claim and secure a collection of other basic human rights, in national legal systems’.⁴

The 2023 Citizenship Amendment has potentially far-reaching impacts because it applies to Australian dual citizens. As a vibrant multicultural society, a large proportion of Australian citizens are dual nationals, including those who are born overseas and have parents who were born overseas. The Australian Bureau of Statistics recently found⁵ that the overseas-born population in Australia grew by 155,000 people in 2022, increasing to 29.5 per cent of the nation’s total population. Previously, the 2021 Census found one in five Australians are born in Australia but have one or both parents born overseas. While the Law Council is unaware of statistics on the percentage of Australians with dual nationality, these figures suggest that the number of Australians potentially affected by these measures may be high. In many cases Australian nationals may have acquired another nationality, or the right to apply for another nationality, by operation of the law of another country and without having applied for that citizenship.

In outline, the 2023 Citizenship Amendment engages and may limit multiple human rights including criminal process rights, the right to equality and non-discrimination, the rights of the child, and the rights to freedom of movement, protection of the family, and liberty.⁶ For a full statement of the human rights compatibility of the 2023 Citizenship Amendment the Law Council refers to the helpful assessment⁷ produced by the Parliamentary Joint Committee on Human Rights.

Read full submission below.

^{1 Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (Cth) inserted a new Subdivision C to Part 2 of the Australian Citizenship Act 2007 (Cth).
2 The Law Council has used the term ‘citizenship deprivation’ rather than ‘repudiation’ or ‘cessation’ because it more accurately captures the involuntary character of these provisions: For example, the High Court noted that ‘[t]he substantive effect of the deprivation of rights of liberty conferred by Australian citizenship is not disguised by the use of the emollient language of "citizenship cessation" … Alexander v Minister for Home Affairs [2022] HCA 19, 580 [79] (Kiefel CJ, Keane and Gleeson JJ) (‘Alexander’).
3 Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (17 October 2019). (‘Law Council 2019 Submission’); Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (17 July 2015) (‘Law Council 2015 Submission’).
4 Fionnuala Ní Aoláin, Position of the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism on the human rights consequences of citizenship stripping in the context of counter-terrorism with a particular application to North-East Syria (February 2022), 2-3. (‘Special Rapporteur’s 2022 Views’)
5 Australian Bureau of Statistics, Australia’s overseas-born population grows to 29.5% in 2022, (Media Release, 31 October 2023).
6 See for example, International Convention on the Elimination of All Forms of Racial Discrimination [Opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969), Art. 5(d)(iii), International Covenant on Civil and Political Rights, Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Art. 24(3) (‘ICCPR’); and Convention on the Rights of the Child [Opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), Art. 7 and 8; Convention on the Reduction of Statelessness, [Opened for signature 30 August 1961 989 UNTS 175 (entered into force 13 December 1975), Art. 8(2) and 8(3).
7 Parliamentary Joint Committee on Human Rights, Report 14 of 2023 (19 December 2023). (‘PJCHR Report’)}

Last Updated on 26/03/2024

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