Stripping sole citizenship from potential Australian terrorists has divided opinion within Australia, however citizenship laws are not the appropriate vehicle to counter terrorism and any moves to render any person stateless is illegal under international law. The result may well be greater anti-Australian sentiment and increased national security risk.

Protecting Australia and Australians from the evil of terrorism is undoubtedly a key function of our Government. Enacting and implementing strong and robust anti-terrorism laws is of utmost importance. However, the Australian Government’s recent “conversation starter” through a discussion paper aiming to enact citizenship stripping laws in respect of certain terror suspects is misguided, for two reasons. First, citizenship laws are not the appropriate vehicle to counter terrorism. Second, any moves to render any person stateless is illegal under international law. As a responsible member of the international community, Australia must comply with its international law obligations.

Citizenship:

“Citizenship” or “nationality” is the legal bond of attachment between an individual and the State. The possession of citizenship is crucial for a person to enjoy the most basic rights in a society. Hence, the Universal Declaration of Human Rights states that “everyone has the right to a nationality; and no one shall be arbitrarily deprived of his nationality….”

In addition to enjoying rights and privileges, everyone in Australia, both citizens and non-citizens, have responsibilities and duties. These duties include complying with the laws and regulations of Australia. Since 2001, the Australian Parliament has enacted numerous laws countering terrorism. Such laws are well equipped to ensure that a very broad range of terrorist activity, including associating with terrorist organisations, is punishable with very significant penalties.

If we have a sweep of laws dealing with terrorism, what is the rationale behind arguing for a change to our citizenship laws? The Discussion Paper says:

Citizens who become involved in terrorism are rejecting Australia’s values and commitment to a safe and harmonious society. Support for, or involvement in, politically motivated violence is not acceptable. So it is reasonable to consider measures to act against those who betray the allegiance inherent in their citizenship of our nation.

…

The Government intends to modernise the Australian Citizenship Act to enable the Minister for Immigration and Border Protection to take action in the national interest to revoke the Australian citizenship of dual citizens who engage in terrorism that betrays their allegiance to Australia. These powers would be used against dual citizens who join or support listed terrorist groups such as Daesh, or engage in terrorist acts alone. They would apply to dual citizens who engage in terrorist activities here in Australia or on foreign soil, including that of our friends and allies.

It is not only the criminality behind terrorism that the proposed laws seek to address. The proposed laws in fact seek to produce consequences for people who have breached their “allegiance” to Australia. Is this justified?

“Allegiance”, historically, has constituted an underlying pillar of citizenship. The basis of “citizenship” was the notion of a “perpetual allegiance” to the King of England if a person was born within the King’s dominion. This notion has its roots in historical English legal tradition, a tradition from which Australia derives its legal system. Over the centuries, “allegiance” has in one way or another been reflected in citizenship laws of various States. However, the meaning of “allegiance” has never been defined with precision. It is a fluid notion and changes with time. For example, traditionally, dual nationality was considered undesirable because of the multiple allegiances involved – it was actually compared to polygamy. However, in modern times, countries including Australia have embraced dual nationality, given increased globalisation and the nature of our multicultural society.

While it is difficult, if not impossible, to define “allegiance”, there is no doubt that if a person joins a terrorist organisation, committing or aiming to commit violence against Australia, then that person has breached his or her “allegiance” to Australia.

Inherently, the character of such conduct is not dissimilar to the citizenship stripping provision under section 35 of the AUSTRALIAN CITIZENSHIP ACT 2007 (Cth). According to that provision, where an Australian citizen, who also possesses a foreign nationality “serves in the armed forces of a country at war with Australia”, then that person ceases to be an Australian citizen. This provision has a limited scope and does not capture the situation of foreign fighters who choose to fight as part of terrorist organisations such as Daesh.

Given the centrality of “allegiance” to citizenship, it is, in principal, not inconsistent with the concept of citizenship to deprive a person of citizenship when he or she, amongst other activities, manifestly plans to commit, or has committed, violence against Australia by fighting as part of armed groups or terrorist organisations effectively at war with Australia and our friends. Notably, such violence should be distinguished from harm done by other criminals, no matter how serious the crimes may be, when those crimes do not bear on “allegiance” to Australia.

However, we advance three main practical reasons as to why removing certain terror suspects’ citizenship may be counter to national security and is a misguided step.

First, if a person’s citizenship is revoked then that person will be deported. Obviously, if that person is deported, assuming another country is willing to accept him or her, Australia will lose an opportunity to prosecute that terror suspect.

Second and critically, Australia will deprive itself of the opportunity of gaining valuable intelligence.

Finally, Australia will be making another country more dangerous by effectively exporting its own problems elsewhere. These three practical reasons dictate against using citizenship laws to deal with national security.

Australia’s International Law Obligations

The Discussion Paper invited comment on reforms to citizenship laws under which dual citizens could have their Australian citizenship revoked if they engage in terrorist activities in Australia or overseas. Notably, the proposed amendments could extend to revoking a person’s citizenship if the Minister is satisfied that the person is able to become a national of another country, irrespective of whether or not they are guaranteed of being admitted by that country. Clearly, there are serious concerns about the constitutionality of any such provisions as a matter of Australian domestic law. However, the focus here is on the international ramifications.

While States have a wide discretion to enact citizenship laws, international law places limits.

For example, Article 8 of the 1961 Convention of the Reduction of Statelessness (Statelessness Convention), to which Australia is a signatory, prohibits States from revoking a person’s citizenship if it would render them stateless. Revoking a person’s citizenship on the basis of that person being eligible for citizenship in another country involves predicting a state of affairs that may not eventuate, thereby rendering the person stateless. The United Nations has cautioned against predicting whether a person will acquire citizenship of another country in determining whether a person is stateless. This is because in practice a person could be made stateless even though they may be entitled to nationality in another country. This was illustrated in a recent UK Supreme Court case involving a Vietnamese national whose British citizenship was revoked, and Vietnam subsequently refused to recognise him as a national.

Another recent UK Supreme Court case, Al-Jeddah, illustrated that revoking a person’s citizenship on the ‘premise’ that they could obtain citizenship in another country does not necessarily mean the person will not become stateless. If a person becomes stateless because they are not admitted by the other country, Australia could be in violation of its obligations under Article 8 of the Statelessness Convention. Professor Ben Saul, in a recent article, correctly pointed out that:

Australians could… be left stateless in practice, even if they technically have another citizenship. The Australian plan does not make stripping citizenship conditional on a guarantee that the other country of nationality will, in practice, admit their national”.

Unlike the United Kingdom, Australia did not reserve its right under Article 8 to deprive nationals of their citizenship even if it would render them stateless. As Professor Saul pointed out, any attempt to retroactively qualify Australia’s ratification of the Statelessness Convention by now introducing provisions based on national security grounds, depriving a person of their citizenship even if it would render them stateless, “would manifestly violate Australia’s obligation under the Statelessness Convention to not deprive a person of their Australian nationality where it would render them stateless.”

Even with the United Kingdom’s reservation under Article 8, its recently amended citizenship deprivation laws, whilst controversial, still require the Home Secretary to have reasonable grounds for believing that a naturalised citizen is able to become a national of another country under that country’s laws before their citizenship can be revoked. The law’s controversy in part stems from the practical consequences for those who have had their citizenship revoked, potentially exposing them to statelessness, which Australia must also grapple with.

The only way in which Australia could positively ensure that a person who it has stripped of Australian citizenship will have access to a citizenship of another State will be to obtain an official or diplomatic representation from the latter State to that effect. This could truly result in bizarre outcomes. Effectively, Australia will seek to deport its former national to another State, on an assumption that the State in question is willing to grant its citizenship to a terrorist who has been stripped of Australia’s citizenship. It is most unlikely that any country would accept such a person as its citizen. Even if that person is somehow deported, for legal and practical reasons, he or she would not be subject to Australia’s jurisdiction, potentially rendering that person free to plan and perpetrate terrorist attacks against Australia. In conclusion, the idea that citizenship stripping laws in any way enhance national security are illusory. In reality, such a law may create more danger for Australia.

Rishi Gulati is an Australian Barrister and Dickson Poon Scholar of Law at King’s College London.

Matthew Nelson is an Australian Lawyer and a Masters Candidate at University College London. This article can be republished with attribution under a Creative Commons Licence.