Supplmentary Explanatory Memorandum relating to sheet JC578
(Circulated by authority of the Attorney General, the Hon. Christian Porter MP)Attachment A - Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018
The government amendments to Schedule 10 to the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (the Bill) which amend the Australian Citizenship Act 2007 (the Act) are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
1. These government amendments amend the Australian Citizenship Act 2007 (the Act) to lower the threshold for cessation of Australian citizenship for persons who are convicted of terrorism offences in Australia. The purpose of the government amendments is twofold: to keep Australians safe from evolving terrorist threats, and to uphold the integrity of Australian citizenship and the privileges that attach to it.
2. The government amendments amend section 35A of the Act to change the requirement that a person be sentenced to at least 6 years' imprisonment (for a single offence or in total), to a requirement that they are convicted of a terrorism offence, regardless of the sentence imposed.
3. The government amendments also amend the requirement that a person is a national or citizen of a country other than Australia. Instead, section 35A will clarify that a person may cease to be an Australian citizen as long as the Minister is satisfied the person would not become stateless.
4. Since the National Terrorism Threat Level was raised to 'Probable' in September 2014, seven terrorist attacks have occurred on Australian soil. Between September 2014 and November 2018, Australian agencies led 15 major disruption operations in response to potential attack planning, and charged 93 individuals with terrorism-related offences. A majority of these attacks, disruptions and arrests occurred after the passage of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (the Allegiance Act) in December 2015.
5. The threat environment continues to evolve and the terrorist attack in Bourke Street, Melbourne and disruption of a further planned terrorist attack in November 2018 is evidence that the threat level remains high and has not decreased. It is therefore appropriate to keep legislative settings under constant review, and the amendments in Schedule 10 to the the Bill modernise one of the important tools available to protect the Australian community from the threat of terrorism.
6. Section 35A will also be amended to ensure that associating with a terrorist organisation, an offence which carries a maximum sentence of 3 years' imprisonment, will also be an offence for which citizenship may be ceased following conviction. This offence is currently excluded from the list of terrorism offences to which the citizenship loss provisions apply. It is appropriate that persons convicted of this offence be eligible for cessation of citizenship on conviction, as the offence addresses the fundamental unacceptability of the terrorist organisation itself, by making meeting or communicating ("associating") with its members in a manner which assists its continued existence or expansion, illegal. In light of the risk to community safety that terrorist organisations pose, it is reasonable, necessary and proportionate for the cessation of Australian citizenship to individuals convicted of supporting the very existence of these organisations.
7. Notably, individuals who have been convicted of an offence against the control order or preventative detention order schemes under Division 104 and 105 of the Criminal Code will remain ineligible for cessation of citizenship under section 35A. The control order and preventative detention order schemes are designed to enable law enforcement agencies to intervene early to protect the community. Court orders made under these schemes are on the basis of lower, non-criminal thresholds. Offences relating to these schemes thus relate to breaches of civil orders, and it is appropriate that a person convicted of such an offence is not eligible for cessation of citizenship. By comparison, the offences to which the definition of a relevant terrorism conviction target behaviour that is especially harmful to community safety and amounts to a repudiation of allegiance to Australia.
8. Existing section 35A was inserted by the Allegiance Act, which incorporated a recommendation by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) that the Minister have a discretion to revoke a person's citizenship if they had been sentenced to a period of imprisonment of at least 6 years, or to periods of imprisonment that total at least 6 years.
9. The Allegiance Act also incorporated a recommendation of the PJCIS that section 35A should be applied retrospectively to persons convicted for relevant offences and sentenced to ten years or more imprisonment, within ten years of the Act receiving Royal Assent.
10. The government amendments recognise that past terrorist-related conduct in respect of which persons have been convicted under Australian law, is conduct that all Australians would view as repugnant and a deliberate step outside of the values that define our society.
11. In addition, the requirement that a person is a national or citizen of a country other than Australia at the time of a Ministerial determination will be amended to require only that the Minister be satisfied that the person would not, if the Minister were to determine that the person ceases to be an Australian citizen, become a person who is not a national or citizen of any country.
12. The new test is consistent with Australia's international obligations to not render a person without the citizenship or nationality of any country stateless and will be applied consistent with longstanding practice as it applies to other provisions of the Act. This test has been used for many cases of revocation of citizenship for serious offences (under section 34 of the Act) and there are well-established practices and processes in place.
13. Cessation of citizenship is not automatic and remains at the discretion of the Minister, having regard to other provisions in section 35A which remain unchanged. This includes a requirement that the Minister be satisfied that the conduct that led to the conviction demonstrates the person's repudiation of their allegiance to Australia, and that the Minister is satisfied it is not in the public interest for the person to remain an Australian citizen, having regard to a number of factors including the including the seriousness of their conduct, the degree of threat they pose to the Australian community, and Australia's international relations.
14. The government amendments to Schedule 10 of the Bill are appropriate and proportionate in light of evolving threats to Australia's national security. Conviction for a terrorism offence is evidence of very serious conduct that demonstrates a person has repudiated their allegiance to Australia. It is appropriate that the relevant Minister is able to determine that it is not in the public interest for a person to remain an Australian citizen to protect Australia and Australian interests from further harmful acts, and maintain the integrity of Australia's citizenship framework.
15. The amendments have been assessed as engaging human rights under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).
Human rights implications
Right to freedom of movement and choice of residence - Article 12(1) ICCPR
16. Article 12 of the ICCPR provides:
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
17. The amendments will not on their own alter a person's liberty of movement and freedom to choose their residence. Cessation of citizenship does not automatically result in a person's removal from Australia. A person in Australia whose citizenship ceases under the provisions would hold an 'ex-citizen visa', which would be subject to mandatory cancellation under the Migration Act if the person has a 'substantial criminal record' and is serving a sentence of imprisonment for an offence against the law of the Commonwealth. [1] Relevantly, section 501(7)(c) states that a person has a substantial criminal record where they have been sentenced to a term of imprisonment of 12 months. Where a person has served a sentence of less than 12 months, cancellation of their visa is discretionary. The impact of cancelling a non-citizen visa is that that individual becomes an unlawful non-citizen, and subject to the removal processes in the Migration Act.
18. In line with Article 12(3), any measures restricting freedom of movement and the ability to choose a residence will be based in the Migration Act and will therefore have a lawful domestic basis. In circumstances where a person is convicted of a terrorism offence, such measures will be necessary to protect national security, public order and the rights and freedoms of the Australian community at large. This is consistent with the ICCPR, being explicitly contemplated by Article 12(3) and being proportionate to the evolving threats to national security which Australia faces.
Right to leave a country - Article 12(2) ICCPR
19. The ability to leave Australia will not be directly affected by the cessation provisions. Cessation of citizenship following conviction for a terrorism offence may lead to visa cancellation and removal; in these circumstances Article 12(2) would not be relevant.
20. If a person whose Australian citizenship ceases is allowed to remain in Australia, their ability to leave the country may be restricted under other legislation on national security grounds. The inability to hold an Australian passport as a result of cessation of Australian citizenship could potentially prevent travel outside Australia. However, as the Minister must be satisfied the person would not become a person who is not a national or citizen of any country, the person may be able to obtain a travel document from another country, or they may be issued a temporary document by Australia.
Right to enter one's own country - Article 12(4) ICCPR
21. While a person whose citizenship has ceased would no longer be a citizen under Australian law, Australia may still be considered their "own country" for the purposes of Article 12(4). The phrase "his own country" has been interpreted broadly by the UN Human Rights Committee and the drafting history of the provisions supports the interpretation that "own country" goes beyond mere nationality. However, where a person has repudiated their allegiance to Australia, resulting in cessation of their Australian citizenship, any ties they may have to Australia for the purposes of Article 12(4) have been voluntarily severed by their own actions, and the person should not be entitled to gain any advantage from a relationship they are responsible for breaking.
22. Should circumstances arise where a person whose citizenship has ceased can properly consider Australia to be "his [or her] country", depriving them of the right to enter Australia would not be arbitrary. It would be based on a genuine threat to Australia's security posed by a person who is convicted of particular terrorism-related offences and following the Minister's consideration of their individual circumstances, a finding that the person has repudiated their allegiance to Australia and a determination that it is in the public interest for their citizenship to be ceased. The cessation of Australian citizenship (thereby preventing return to Australia) proportionate to the legitimate goal of ensuring the security of the Australian community.
Expulsion of Aliens - Article 13 ICCPR
23. Article 13 of the ICCPR provides that:
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
24. The amendments would not result directly in the expulsion of a person from Australia. However, expulsion may be an outcome of a process following cessation of Australian citizenship.
25. Removal from Australia would only occur after the person's lawful status in Australia ends, i.e. after any visa they held following cessation of citizenship was cancelled on the grounds, and subject to the processes, established in the Migration Act. Removal following cessation of citizenship in these circumstances would therefore occur in accordance with law, be based on national security grounds and subject to the processes established in the Migration Act. Further, both the citizenship cessation decision and the visa cancellation would be subject to review by a court.
Equality before the courts and tribunals - Article 14 ICCPR
26. Article 14 of the ICCPR provides:
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;(c) To be tried without undue delay;(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
27. The right to a fair trial and fair hearing are not in any way affected or limited by the proposed amendments. In any judicial review action, the Court would consider whether or not the power given by the Citizenship Act has been exercised according to law. A person also has a right to seek declaratory relief as to whether the conditions giving rise to the cessation of citizenship have been met.
Retrospectivity - Article 15 ICCPR
28. Article 15(1) of the ICCPR provides that:
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
29. The government amendments expand the scope of the cessation provisions such that any individual who was convicted of a terrorism offence after 12 December 2005 will be eligible for cessation, regardless of the term of imprisonment imposed. In its 2015 review of the Allegiance Act, the PJCIS found that retrospectivity should be implemented with 'great caution and following careful deliberation, with regard to the nation as a whole.' The PJCIS ultimately concluded that past terrorist-related conduct, to which persons have been convicted under Australian law, is conduct that all members of the Australian community would view as repugnant and a deliberate step outside of the values that define our society.' [2] In addition, the PJCIS found that the retrospective application of the Allegiance Act was necessary to achieve its object of ensuring the safety and security of Australia and its people and to ensure the community of Australian citizens is limited to those who continue to retain an allegiance to Australia, an approach which is also reflected in the amendments in Schedule 10 of the Bill.
30. In line with the PJCIS' recommendation, the retrospective application of the citizenship cessation powers in the Allegiance Act was restricted to individuals who had been convicted of a relevant offence, with a term of at least 10 years imprisonment 10 years prior to the passage of the Allegiance Act.
31. In order to respond to the evolving threat environment, the government amendments to Schedule 10 of this Bill proposes to broaden the threshold for retrospective application to individuals with a relevant terrorism conviction, regardless of the length of the sentence of imprisonment imposed. Between September 2014 and November 2018, Australian agencies led 15 major disruption operations in response to potential attack planning, and charged 93 individuals with terrorism-related offences, with the majority of these events occurring after the passage of the Allegiance Act in December 2015. The amendments in Schedule 10 of this Bill ensure that one of the important legislative tools available to protect the Australian community from the threat of terrorism remains effective in the current threat environment.
32. The carefully circumscribed definition of a 'relevant terrorism conviction' narrows the retrospective application of the government amendments to in Schedule 10 of the Bill, in line with the PJCIS' comment that retrospectivity be applied with caution. As outlined in paragraph 7, the provisions only applies to terrorism offences which target behaviour that is especially harmful to community safety and amounts to a repudiation of allegiance to Australia. It does not, for instance, include contravention of preventative detention orders or control orders which are designed to enable law enforcement agencies to intervene early to protect the community and orders under these schemes are made on lower, non-criminal thresholds.
33. Section 35A does not create a criminal offence. Rather it allows for the imposition of a civil consequence in respect of a conviction and penalty that occurred prior to commencement. Cessation of citizenship on this basis is not automatic and remains at the discretion of the Minister, having regard to other provisions in section 35A which remain unchanged. This includes a requirement that the Minister be satisfied that the conduct that led to the conviction demonstrates the person's repudiation of their allegiance to Australia, and that the Minister is satisfied it is not in the public interest for the person to remain an Australian citizen, having regard to a number of factors including the including the seriousness of their conduct, the degree of threat they pose to the Australian community, and the potential impact on Australia's international relations.
34. The application of the proposed amendments to persons who were convicted of an offence prior to the commencement of Schedule 10 of the Bill is confined to terrorism offences, and does not constitute a 'bill of attainder' that would amount to legislation declaring a person or group of persons guilty of a crime and punishing them without appropriate judicial oversight.
35. Relevantly, the responsible Minister's role does not relate to the imposition of penalties at the point of conviction, which could be argued to be comparable to a judicial function. Rather, the Minister's role is to determine whether that conviction, based on public interest considerations, including the severity of the conduct that was the basis of the conviction, the degree of threat they pose to the Australian community and any other matters of public interest, justifies the cessation of an individual's Australian citizenship.
36. Rather than being a punitive measure, the purpose of the ceasing citizenship is to ensure the safety and security of Australia, and to ensure that the community of Australian citizens comprises persons who have an allegiance to Australia.
Equality before the law - Article 26 ICCPR
37. Article 26 of the ICCPR provides:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
38. This a stand-alone right which will be breached if a person does not enjoy equality before the law or equal protection of the law with others, on the basis of discrimination on a prohibited ground. The government amendments in Schedule 10 of the Bill provide for differential treatment on the basis of the commission of certain offences and therefore it may engage the rights to equality and non-discrimination, for example on the basis of political or other opinion.
39. The government amendments in in Schedule 10 of the Bill also differentiate on the basis that they apply only to those persons who hold, or are eligible to hold, dual citizenship. This is in line with Australia's international obligations which prohibits circumstances where a person is not a national or citizen of any country.
40. As observed by the Human Rights Committee in General Comment no. 18, not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR.
41. By acting against Australia and Australian interests in engaging in terrorism, a person has repudiated their allegiance to Australia. Cessation of Australian citizenship is proportionate to the seriousness of such conduct, and acts to protect Australia and the Australian community from further harm. The Minister will be required to be satisfied that a person will not be without nationality or citizenship of any country if the Minister determines the person ceases to be an Australian citizen.
The best interests of the child - Article 3 CRC
42. Article 3 of the CRC provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
43. Where a child is involved in terrorist activities, and is held criminally responsible for their conduct under Australian law, the Government must balance the protection of the Australian community with the best interests of the child.
44. The cessation power is discretionary and allows the Minister to take into account all the circumstances of each individual case. The Minister must expressly have regard to the best interests of the child as a primary consideration when reaching satisfaction on whether it is in the public interest for the child to remain an Australian citizen. The Minister also has the power to revoke a determination made under section 35A if a conviction (in relation to a child or otherwise) is later overturned or quashed.
Rights of children to nationality, and identity. - Article 24 ICCPR and Article 7 and 8 CRC
45. Article 24 of the ICCPR provides that:
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
46. Article 7 of the CRC provides that:
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
47. The right in Articles 7 and 24 to acquire a nationality is not the same as a right to retain a nationality. The rights in Articles 7 and 24 do not provide a right to acquire Australian nationality - merely to acquire a nationality. Cessation of a child's Australian citizenship may only occur if the child is an Australian citizen, and if the Minister is satisfied they would not be rendered stateless as a consequence of their Australian citizenship ceasing. That is, the child would be entitled to the nationality of at least one other country, and therefore the right to acquire a nationality set out in Article 7(1) is not limited.
48. Article 8 of the CRC states:
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity.
49. Cessation is not available in circumstances where it would render a child stateless. The government amendments in Schedule 10 of the Bill provide that a child's Australian citizenship may not be ceased unless the Minister is satisfied that the child would not become a person who is not a national or citizen of any country.
50. Cessation of a child's Australian citizenship as a result of conviction for a terrorism offence would be lawful as a result of the proposed amendments, and would be reasonable, proportionate and necessary in light of the serious conduct of the child that has led to their conviction for a terrorism offence.
Right relating to the family unit - Article 17 and 23 ICCPR
51. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and everyone has the right to the protection of the law against such interference or attacks.
52. Article 23(1) of the ICCPR provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
53. As outlined above, cessation of citizenship following conviction for a terrorism offence may lead to visa cancellation and removal, including in circumstances where that individual's family members remain in Australia, resulting in an interference with the family unit. However, it is the Government's position that such interference would not be unlawful, and also would not be arbitrary. The cessation of citizenship and any subsequent visa cancellation and removal is the consequence of is a genuine threat to Australia's security posed by a person who has objectively demonstrated an intent to repudiate their allegiance to Australia by their conduct. As the cessation and cancellation decisions are discretionary, the impact on family members would be considered and any limitation of these rights in an individual case would be proportionate to the legitimate goal of ensuring the security of the Australian community.
Conclusion
54. The government amendments in Schedule 10 of the Bill are compatible with human rights because to the extent that it may limit some human rights, those limitations are reasonable, necessary and proportionate in light of Schedule 10 of the Bill's objective and purpose to protect the Australian community and Australia's interests from persons convicted of terrorist offences.