Pearls and Irritations

One of the policy solutions being considered by the Australian government to deal with the expected problem of returning Australian jihadists is to preclude their return to Australia, or expel them, by revoking their Australian citizenship.

The recently released report of the Independent National Security Legislation Monitor (INSLM)[1] recommends that the Minister for Immigration and Border Protection be given the power to do this on national security grounds.

The idea of using Australian citizenship legislation to indirectly solve a problem that cannot be solved directly is not new. Some time ago there were calls to revoke the Australian citizenship of ageing, suspected World War II war criminals in the hope that this action would get them out of the country. We “knew” that were guilty, but couldn’t actually prove it in a criminal justice process.  It was argued that an administrative decision under the Australian Citizenship Act would function as a work-around. The idea was never adopted by government for good reason, including the fact that there was no guarantee that anyone who lost their Australian citizenship in that way would actually be accepted to return another country.

It is not clear what it is expected would be the actual outcome of the citizenship solution. Revocation of the Australian citizenship of someone who has already engaged in jihadist activity would have the benefit of denying further access to Australia, but would not stop the person from circulating freely in the world and engaging in further political violence.  Only prosecution, conviction and incarceration, whether overseas or in Australia, would achieve that.

Citizenship solutions are always harder in practice than they look.

The INSLM Report suggests that Australia should respect its obligations under the 1961 UN Convention on the Reduction of Statelessness, and that revocation of citizenship should only occur in relation to jihadists who are dual nationals. Unfortunately, there is nothing in the Report to tell us whether or not the relevant suspects are dual nationals and therefore whether anyone’s Australian citizenship could in practice be revoked.

And then there is the question of how a decision to take away citizenship would be made. Existing Australian citizenship policy and law set a high bar for revocation. Before revocation of the citizenship of a naturalised citizen can even be considered, the person must have been convicted of a serious offence (primarily fraudulent acquisition of citizenship) committed before becoming a citizen. Offences committed after becoming a citizen are a matter for the criminal law and are not a basis for revocation of citizenship. There is no provision for loss of citizenship of an Australian-born citizen, except where the person is a dual citizen who serves in the armed forces of a country at war with Australia.

For jihadists, would a conviction for some offence be required or just suspicion? If the latter is sufficient to take away a person’s citizenship, the status of Australian citizenship is seriously weakened.

The government is right to look seriously at any measures which could restrict violent activity by Australian jihadists, either overseas or in Australia. However, it should weigh up very carefully whether the uncertain citizenship solution can make any substantive difference to the problem before introducing any new policy.

The report moves on from the question of jihadists to make a broader condemnation of dual citizenship, noting that the INSLM “does not see why, as a matter of public policy, an Australian citizen should also be able to be a citizen of another country” and “by its nature, dual citizenship is deeply problematic”. It goes on to say that that “its (dual citizenship) permission in Australia since 2002 does not render it anything like traditional” and recommends that “the 2002 legislated policy in favour of dual citizenship should be reconsidered”.

This analysis would probably come as a surprise to the estimated 4 million Australian citizens who enjoy dual citizenship.

Most Australians dual nationals are people who migrated to Australia and then acquired Australian Citizenship. Retention of their first citizenship is, in practice, a matter between them and their country of birth. There is nothing much the Australian government can do about this and it has not attempted to do anything since the commencement of the status of Australian Citizenship in 1949. The sensible policy priority, as in other migrant receiving countries such as the USA and Canada, has been to integrate migrants through encouraging take-up of Australian citizenship, rather than to sever past linkages.

The anomaly in Australian citizenship law was that, until April 2002, an adult Australian citizen who was Australian-born lost his or her Australian citizenship if they took out the citizenship of another country. This created the ridiculous situation that an Australian-born person was in a much less favourable position than a migrant Australian citizen.

Implementation of this restrictive policy was in practice arbitrary as the Australian government had no way of knowing which Australians had taken out another citizenship. The only people that were recorded as losing their Australian citizenship were those who were unlucky enough to reveal their acquisition of foreign citizenship, perhaps while in contact with an Australian mission abroad. For example, an Australian woman seeking to register a child born overseas as an Australian citizen might find that, not only was the child not a citizen, but that her own Australian passport had to be confiscated on the grounds that she had not been an Australian citizen for years, by virtue of acquisition of another citizenship.

This restrictive approach became completely untenable when Australian-born citizens began to live and work abroad in much larger numbers as part of a globally mobile workforce. A diaspora estimated at about 1 million Australians (living mostly in the UK and North America) came into being. Many of them found that for practical reasons they needed to take out foreign citizenship, but wanted to keep their personal and family links with Australia to allow frequent travel between countries and possible return. The Australian approach to dual citizenship was also increasingly out of step with the USA, Canada and the UK which permitted their nationals to take out another citizenship without loss of their original citizenship.

The Coalition government secured the passage of legislation in 2002 to stop Australians losing their citizenship through acquisition of another, on the advice of a report of the Australian Citizenship Council chaired by former Governor General and Justice of the High Court, Sir Ninian Stephen.[2] A key justification was that Australia would benefit economically and socially by retaining linkages with its expanding diaspora, even if some of them also became citizens of other countries. That argument remains valid.

Dual citizenship is not without its problems, including in the consular realm, but the current policy settings remain in the national interest and should be left alone. Tinkering with them is unlikely to have any impact at all on the Australian jihadist problem.

Peter Hughes PSM, Visiting Fellow, Crawford School of Public Policy; Visitor, Regulatory Institutions Network, Australian National University

This article was first published in edited form in the Lowy Institute Interpreter.  http://www.lowyinterpreter.org/post/2014/08/20/Australian-jihadists-citizenship-solution.aspx

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