The INSLM Act provides for the appointment of the INSLM. I independently review the operation, effectiveness and implications of national security and counter-terrorism laws, and consider whether Australia’s national security and counter-terrorism laws contain appropriate protections for individual rights and remain necessary and proportionate to Australia’s terrorism or national security threats. In conducting the review, I have access to all relevant material, regardless of national security classification, can compel answers to questions, and hold public and private hearings. My reports are provided to the Prime Minister and/or the Attorney-General and unclassified reports must be tabled promptly in Parliament.
By letter dated 15 February 2019, the Attorney-General, the Hon Christian Porter MP, referred for my review and report, the topic of ‘the operation, effectiveness and implications’ of the terrorism- related citizenship loss provisions in the Australian Citizenship Act 2007 (the Act). He requested that the review be completed by 15 August 2019, as it has been, noting that the PJCIS is required to examine the citizenship loss laws by the 1 December 2019. This is that report.
There is no doubt that the legislation is both important, and to some extent, contentious. Because of its importance, as s 30(3) of the INSLM Act permits, this report is being provided simultaneously to the Prime Minister and the Attorney-General.
For only the second time in the history of my office, and the first time for me, I am providing both a classified and an unclassified report. In view of the sensitivity of certain matters this was inevitable. The INSLM Act specifies what should remain classified and its requirements have been complied with. Additionally, I have decided that it is proper to maintain confidentiality in legal advice where the privilege is held by the Commonwealth; so I do not disclose its contents in the unclassified report, although I have considered it. The classified report is provided by me only to the Prime Minister and the Attorney-General; the unclassified report is required under the INSLM Act to be tabled in the Parliament within 15 sitting days of its receipt.
As the PJCIS also has a relatively short time in which to report, I recommend, consistent with recent practice, that each PJCIS member receive an early, embargoed, copy of the report for the purposes of their duties as PJCIS members. If, as was the case with my 5th report, The prosecution and sentencing of children for terrorism offences, a Bill is introduced to give effect to my recommendations before 15 sitting days elapse, it is important that this report be tabled no later than introduction of the Bill so that Parliament can consider my report together with the Bill.
I have consulted widely and received submissions from relevant departments and agencies, the Human Rights Commissioner, the Law Council of Australia, leading academics, and with civil society. In May 2019, I consulted in London with many people: current and former counterparts, agencies and departments, legal academics and practitioners, and members of the judiciary. In the current context, the United Kingdom faces many counter-terrorism threats similar to those faced by Australia and the consultation was invaluable.
The legislation in question
The unexpected rise of ISIL, the creation of its so-called caliphate, and the significant numbers of Australian dual nationals who fought for or supported ISIL, or otherwise were involved in its terrorist activities, led, among other legislative responses, to the enactment of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (the Allegiance to Australia Act). The Minister’s Second Reading Speech said one purpose of the Bill was to ‘address the challenges posed by dual citizens who betray Australia by participating in serious terrorism related activities’, and who represent ‘a serious threat to Australia and Australia’s interests’.
The relevant provisions of that Act fall into two categories. They each: (a) only operate upon dual citizens of Australia and another country (b) proceed on the basis that an Australian citizen owes allegiance to Australia. They then proceed to provide that specified terrorist related actions inconsistent with that allegiance permit or require citizenship to be revoked (c) are designed to ensure that Australia complies with its obligations under the Convention on Statelessness.
However, the Act adopts two quite different approaches: one conventional, one not.
Section 35A of the Act, ‘the conviction based provisions’, fairly conventionally provides that, following a conviction for a federal terrorism offence in Australia, with an imposed sentence of imprisonment of six years or more, the relevant Minister (originally the Attorney-General, now the Minister for Home Affairs) has a power to revoke citizenship, having regard to the public interest, bearing in mind listed factors, as applied to the person in question.
For reasons which follow, this provision passes muster under the INSLM Act and should continue as it is or likely will be necessary.
In contrast, and less conventionally, ss 33AA and 35, ‘the operation of law provisions’, provide that, where the dual citizen (in this case 14 years of age or more) has in fact either: (a) been fighting for, or been in the service of, a declared terrorist organisation (s 35A), or (b) engages in specified forms of terrorist conduct, with terrorist like intent (s 33AA), then by operation of law, without any further event or action such as conviction by a jury or decision by a minister, official, judge or Tribunal member, the person then and there loses their Australian citizenship.
For reasons which follow, I have concluded that these provisions do not pass muster under the INSLM Act and should, with some urgency, be repealed with retrospective effect, but be simultaneously replaced by a Ministerial decision-making model (and thus with constitutionally entrenched judicial review), coupled with merits review as to the conduct (s 33AA), fighting or service (s 35) by the Security Appeals Division of the Administrative Appeals Tribunal, and using the special advocate model which now exists for control orders. This recommendation reflects the considerable experience of that Division in passport-cancellation cases on security grounds, as well as aspects of the comparable United Kingdom review system in the Special Immigration Appeals Commission (SIAC).
I now turn to the particular questions the INSLM Act requires me to answer.
The current threat of terrorism
The current threat of a terrorist attack in Australia remains at the ‘probable’ level set at the end of 2014. More than 75 people have been convicted of terrorist offences in Australia, and more than 30 are before the courts. The threat comes mainly from radical Islamists and to a lesser, albeit increasing, extent, violent right-wing radicals.
However, the principal focus of the relevant provisions, and almost the sole focus of the operation of law provisions in ss 33AA and 35, concerns criminal activity external to Australia, which so far comes mainly from ISIL, its fighters and adherents.
Between 2014 and 2018, large numbers of foreign fighters and their families from both Australia and other countries travelled to Syria and Iraq. Although many have died, ISIL has produced a large, now widely dispersed, radicalised, highly trained diaspora of actual or potential terrorists, many of whom remain with their supporters and dependants including children, and most of whom remain outside of their countries of citizenship. Although ISIL’s so-called ‘Caliphate’ is now reduced to effective territorial control of parts of refugee camps, it remains a significant source of concern.
The ISIL threat is wider than the foreign-fighters’ group, large though it is, because of the effectiveness of its message, particularly over the internet, to inspire other attacks. As the then UK Home Secretary, Sajid Javid, said in a speech on 20 May 2019, ‘In fact, of all the terrorist plots thwarted by the UK and our Western allies last year, 80% were planned by people inspired by the ideology of [ISIL]/Daesh, but who had never actually been in contact with the so-called Caliphate.’
The authorities estimate that about 80 Australians or former Australians remain in Syria and Iraq (together with their dependent children), some of whom no doubt wish to return to Australia, and some have already done so.
Children deserve special mention. During that same period, children and young people variously travelled to ISIL-controlled areas of their own volition (the ‘jihadi brides’, for example), were taken by their parents or guardians, and were, then or later, unable or unwilling to leave and were then pressed into service of ISIL.
Australia’s important obligations under international law towards children under for example the Convention on the Rights of the Child were considered by me in my 5th report to the Prime Minister, The prosecution and sentencing of children for terrorism offences. As I there wrote, and as remains the case in the context of this report: There are ... parallels between child soldiers and Australian children in territory controlled by ISIL: the fact that each are certainly victims does not mean they cannot also become perpetrators, and thus they remain a cohort of interest.
It is also important to distinguish the different legal position of children depending upon their age: under 10, no criminal liability; under 14, a presumption of no criminal intent, i.e. doli incapax; and 14–18, where the position in our federal system is more complex (as explained in my 5th report).
There can be little doubt that some of the remaining 80, and no doubt others elsewhere abroad (for the relevant provisions are not directly limited by location) remain a terrorist threat to Australia and its people by their direct acts and by their capacity to inspire others to act.
Where the person is solely an Australian citizen, then until the very recent enactment of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019, they could not be prevented from returning to Australia where, of course, there may be no sufficient admissible evidence to criminally charge them nor obtain a control order.
However, where they are a dual citizen of Australia and another country, lawful removal of citizenship is a possible way of keeping the person out of Australia; if they are discovered to have returned, then they must be placed into immigration detention pending deportation.
For the reasons set out in Chapter 3, I am satisfied that the citizenship loss provisions (and the replacement laws I recommend in this report) are supported by the following powers in s 51 of the Constitution: (a) the power with respect to ‘naturalisation and aliens’ : s 51(xix) (b) insofar as the provisions act, as they largely do, upon ‘places, persons, matters or things physically external to Australia’, the geographically external aspect of the external affairs power: s 51(xxix)2 (c) given the decision in Thomas v Mowbray (2007) 233 CLR 307, the defence power: s 51(vi)3 (d) insofar as loss of citizenship would be due to terrorist acts or association, the executive power of the Commonwealth which ‘extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth’ read with the express incidental power in s 51. As Burns v Ransley (1949) 79 CLR 101 identified, this is a source of power to legislate against subversive or seditious conduct.
Necessity and proportionality
My conclusion as to these matters, in summary, is that citizenship loss because of terrorist conduct may be both necessary and proportionate under the conviction-based provisions.
The reasons why it may be both necessary and proportionate include the following:
(a) The ‘simplified outline’ in s 32A notes that citizenship can be lost under the provisions I am now considering ‘by various kinds of conduct inconsistent with allegiance to Australia’.
(b) The Australian Citizenship Act accurately reflects constitutional case law and legal history by reciting that Australian citizenship is a common bond, involving reciprocal rights and obligations.
(c) Such a bond is capable of being broken by express renunciation or by renunciation implied from conduct incompatible with the continued bond.
(d) As ‘a federal offence is, in effect, an offence against the whole Australian community’ – a serious terrorism offence is the paradigm case of an offence against the Australian community and one which may fairly be seen to break that common bond.
(e) Given the current threat level from dual citizens, especially those fighting for or supporting ISIL, it may in a particular case be necessary in the public interest to exclude such a person who can be seen to have renounced their citizenship by their conduct, from entering Australia and from other rights of citizenship.
In contrast, fundamentally, it is neither necessary, nor is it proportionate to the counter-terrorism threat, to revoke such citizenship without considering what the public interest requires in each particular case by reference to the factors which the Minister must take into account in deciding to 2 3
Section 51(xix) of the Constitution enables the Parliament to legislate with respect to things geographically external to Australia. As a majority of the High Court confirmed in XYZ v Commonwealth, that power extends to making laws with respect to ‘places, persons, matters or things physically external to Australia’: (2006) 227 CLR 532 at  (Gleeson CJ),  (Gummow, Hayne and Crennan JJ). The High Court has upheld the validity of Commonwealth legislation which concerns conduct outside Australia: see for example Polyukhovich v Commonwealth (1991) 172 CLR 501; XYZ v Commonwealth (2006) 227 CLR 532; Alqudsi v Commonwealth (2015) 91 NSWLR 92. The defence power in s 51(vi) of the Constitution empowers the Commonwealth Parliament to make laws concerning defence against terrorist threats. In Thomas v Mowbray (2007) 233 CLR 307, a majority of the High Court took a broad view of the defence power and accepted that it supported Commonwealth legislation providing for interim control orders designed to protect the public from terrorist acts. A majority of the High Court considered that the defence power was not limited to making laws with respect to defence against external aggression from a foreign nation or to the protection of the Commonwealth and the States as bodies politic as opposed to the public or sections of the public which constitute those bodies politic. Chief Justice Gleeson considered that the defence power ‘is not confined to waging war in a conventional sense of combat between forces of nations’: Thomas v Mowbray (2007) 233 CLR 307, 324 .
Further, a law will be by the defence power if it can reasonably be regarded as a means towards attaining an object which is connected with defence – Marcus Clark and Co. Ltd. v The Commonwealth (1952) 87 CLR 177 at 256 per Fullagar J. In Pham, the plurality said (2015) 256 CLR 550, . ‘As Kirby J observed in Putland v The Queen, a federal offence is, in effect, an offence against the whole Australian community and so the offence is the same for every offender throughout the Commonwealth.’ revoke citizenship under the conviction-based provisions in s 35, but which are only taken into account, and weighed-up, in the operation of law provisions if the Minister voluntarily chooses to consider whether to restore citizenship under s 33AA or s 35. Further, those provisions do not sufficiently protect human rights and they are likely to result in breaches of international law.
In particular those provisions:
(a) operate in an uncontrolled manner so that a person who has committed the most serious of offences and is an undoubted threat to Australia while remaining a citizen is treated the same as one whose behaviour is at the lowest end of the spectrums of criminal behaviour and is no longer any threat and has other significant mitigating circumstances
(b) operate in an uncertain manner: it will often not be possible for the authorities to know when citizenship has ceased. The Minister has said as at 29 December 2018 12 persons had lost citizenship, however it is almost certain that more, perhaps many more, formerly dual Australian citizens, both adults and even children, have lost citizenship, but that significant change of status, is unknown to them or Australian authorities
(c) lack the traditional and desirable accountability which comes with a person, court or tribunal taking responsibility for a decision and being subject to constitutionally entrenched judicial review
(d) cause Australia to be in breach of its international obligations under the Convention on the Rights of the Child as the operation of law provisions pay no regard to the best interests of a child over 14
(e) will inevitably cause real unfairness in particular cases including because of the usual decision not to notify a former citizen they have lost Australian citizenship, even though that person may well take irrevocable and important steps, such as giving birth to more children, on the incorrect assumption they remain a citizen of Australia
(f) lack proper review rights. Although challenging a determination of dual citizenship is possible, albeit difficult in some cases, challenging the operation of the law on the conduct is likely to be very difficult; the official view expressed in hearings to me is that even a successful challenge to ASIO’s qualified security assessments (QSAs) will not inevitably result in restoration of rights of citizenship, but at best a departmental recommendation for the Minister to restore citizenship, which the Minister is not bound to consider
(g) lack proper oversight in relation to allegations of maladministration because the Citizenship Review Board comprises both intelligence and non-intelligence personnel so that neither the IGIS nor the Ombudsman has sufficient jurisdiction
(h) potentially causes unintended and not easily contained effects on Australia’s relations with other countries
(i) cause confusion and potential legal difficulties for ASIS and ASD because of additional safeguards in the Intelligence Services Act when those agencies seek to exercise their powers in relation to Australian citizens
(j) may impede criminal prosecutions or cause them to fail because, variously: i. where it is an element of the offence that an accused person was an Australian citizen (Criminal Code s 119.1–.2), or where that status is a jurisdictional requirement (Criminal Code s 15), the prosecution in a criminal trial may not be able to prove that status beyond reasonable doubt ii. where an offence is committed wholly overseas by a person who was not then an Australian citizen, the Attorney-General must give consent before ‘proceedings are commenced’: Criminal Code s 16, but if that status is not known the consent may not be obtained, potentially making the prosecution fail.The INSLM recommendations are
For those reasons (as further explained in the report), I conclude that: (a) s 35A is necessary, proportionate to the counter-terrorism threat and generally contains appropriate safeguards for protecting the rights of individuals; but that (b) ss 33AA and s 35 are neither necessary nor proportionate, nor do they contain appropriate safeguards for protecting the rights of individuals; (c) ss 33AA and 35 should urgently be repealed and, especially because of their uncontrolled and uncertain operation, be repealed retrospectively; (d) iii. iv.
The recommended model has the following features:
(a) The Minister may revoke citizenship in the following circumstances, i.e. if he or she: i. is reasonably satisfied that the physical conduct element (as it currently appears in the Act) in ss 33AA (1–9) or s 35 (1–4) exists ii. has regard to the factors in s 33AA(17) (as currently enacted) in determining whether there is first, a repudiation of allegiance such that, second, it is not in the public interest for the person to remain an Australian citizen – this expressly requires for example, the best interests of the child to be considered.
(b) The Minister, as with other administrative decision makers, may rely on probative material which is not admissible in court under the Evidence Act, including classified material, in coming to a reasonable satisfaction as to the existence of conduct (as with 33AA), fighting or service (as with 35).
(c) Because giving prior notice to the proposed revokee or their other country of citizenship may lead to the person abandoning their other citizenship or to the other country acting to revoke citizenship before Australia does, thus rendering the scheme ineffective, the Minister is not obliged to give procedural fairness to the person before revoking their citizenship nor prior notice to the other country involved, however the Minister is bound to give the person notice of their loss of citizenship and their right to request the Minister to reconsider the decision. The Minister may determine in writing that a notice should not be given to a person if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations; but such a determination would cease to have effect after 90 days. The Minister has a one-off option to determine in writing that a notice should not be given for a further period of 90 days. A Minister who exercises this option must provide a copy of their determination to the IGIS and the PJCIS.
(d) The decision would broaden the scope for constitutionally entrenched judicial review under s 75(v) of the Constitution and its Federal Court analogue under s 39B of the Judiciary Act. As a result, it would therefore be open for mandamus to lie to require the Minister to consider the request for reconsideration of a revocation decision.
(e) There is presently at least some merits review of the QSA in the Security Appeals Division (SAD) of the AAT. Consistent with the approach in the Migration Act, it is not appropriate for the Tribunal to review a decision made in the Minister’s personal capacity (who is responsible to Parliament) in relation to the public interest. However, there should be merits review in the SAD as to whether there could have been or is reasonable satisfaction as to the existence of the requisite conduct for citizenship loss. That would replace any right of challenge to the QSA (challenge of which would therefore be redundant). In order to provide at least some ‘equality of arms’ in the AAT, the special advocate legislation now in the National Security Information (Civil and Criminal Information) Act in relation to control orders would be extended to this process.
a Ministerial decision-making model with proper safeguards could take the place of ss 33AA and 35 and such a model would pass muster under the INSLM Act because it would: i. be constitutionally valid ii. be necessary and proportionate to threats but that ensure compliance with international obligations properly protect individual rights. as to whether there could have been or is reasonable satisfaction as to the existence of the requisite conduct for citizenship loss. That would replace any right of challenge to the QSA (challenge of which would therefore be redundant). In order to provide at least some ‘equality of arms’ in the AAT, the special advocate legislation now in the National Security Information (Civil and Criminal Information) Act in relation to control orders would be extended to this process.
(f) There will be the normal right of appeal on questions of law to the Federal Court, which will be able to view both the open and closed reasons of the AAT, as will any special advocate on appeal.
Finally, consistent with s 6(1)(d) of the INSLM Act, I have considered whether the legislation considered in this review is being used for any matter unrelated to counter-terrorism and national security. In the conduct of this review there is no evidence to suggest this.