An important element of regulatory frameworks that bestow rights or privileges on individuals and entities in the form of licences, approvals or authorisation (including citizenship) is the basis upon which those rights can be revoked and the process that must be followed before revocation can take effect. The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Bill) has attracted considerable attention, not least because it appears to provide for automatic cessation of Australian citizenship in certain circumstances. This article considers whether the case of ACMA v Today FM (Sydney) Pty Ltd [2015] HCA 7 (ACMA v Today FM), which deals with the trigger for the revocation of a broadcasting licence by the broadcasting regulator, provides any guidance for how the Bill is likely to be interpreted by our courts.

Earlier this year, in a unanimous judgement in ACMA v Today FM, the High Court found that the broadcasting regulator ACMA did have the power to make an administrative finding of fact that a licensee was involved in the commission of an offence in the absence of a criminal conviction. This administrative finding formed the basis for the revocation of the licensee’s broadcasting licence by ACMA. In making this finding, the High Court considered that there was a difference between the ‘commission of an offence’ and the ‘conviction for an offence’. In the High Court’s view, ACMA was not adjudging nor punishing criminal guilt in making the relevant administrative finding and, therefore, was not encroaching upon judicial power. Maddocks has previously written on both the Federal Court and Full Federal Court decisions here and the High Court decision here.

In the lead up to issuance of the Bill, media commentary suggested that the Bill would contain a Ministerial decision-making power to strip a dual citizen of their Australian citizenship for certain terrorism related-offences, prior to the individual being convicted by a court of law. Quotes by the Prime Minister referring to ‘decision(s) by the Minister to strip someone of their citizenship’,[1] and the Minister for Immigration referring to the stripping of citizenship as ‘ministerial decisions’[2] seemed to confirm this speculation. A Ministerial decision that terrorism-related-offences had occurred justifying revocation of citizenship appeared akin to ACMA’s decision that a relevant criminal offence had occurred, justifying an administrative decision to revoke the relevant broadcasting licence.

The suggestion that a Minister would have the power to single-handedly withdraw citizenship drew significant community concern. Many expressed the view that the power to strip something so fundamental as citizenship should not be given to a Minister alone, especially in the absence of a criminal conviction. A common belief was that a decision by the Minister to strip citizenship based on a person’s alleged conduct would be a violation of the Australian Constitution, as the Minister would be exercising judicial power through essentially declaring someone guilty of an offence in the absence of a criminal conviction.

While the High Court has consistently found the exercise of judicial power by the executive to be a breach of the separation of powers, the recent decision in ACMA v Today FM has provided some clarification as to how far administrative decision-makers can go without straying into judicial decision-making territory. From the early commentary and Ministerial statements, it appeared that, despite community concern, this Bill may not have been too dissimilar to what the High Court found perfectly legitimate in ACMA v Today FM.

Nevertheless, the subsequent release of the Bill on 24 June 2015 demonstrated that the new regulatory framework does not actually contemplate the making of a Ministerial decision regarding the commission of a terrorism-related offence as the basis for revoking citizenship. Rather, the basis for such revocation purports to be automatic.

More specifically, the Bill proposes three main amendments: inserting two new sections, 33AA and 35A, and repealing and substituting s 35.

Automatic renunciation of citizenship:

  • s 33AA states that a dual citizen renounces their Australian citizenship if they act ‘inconsistently with their allegiance to Australia’ by engaging in specific conduct, namely various terrorist activities. The section states that the person’s Australian citizenship ‘ceases, immediately upon the person engaging in the conduct’.
  • s 35 states that a dual citizen ceases to be an Australian citizen if they serve in the armed forces of a country at war with Australia or fight for or in the service of a declared terrorist organisation and the service or fighting is outside Australia.
  • s 33AA and 35 further provide that the cessation or renunciation of citizenship occurs automatically at the time of the specified conduct. They state ‘if the Minister becomes aware of conduct because of which a person has, under this section, ceased to be an Australian citizen, the Minister must give written notice to that effect at such a time and to such persons as the Minister considers appropriate’. The Minister also has the power to rescind the notice and exempt the person from the cessation of their citizenship in the public interest. The Minister is not obliged to consider exempting any person in any circumstances.

Cessation of citizenship upon conviction:

  • s 35A is quite different to s 33AA and 35. It states that a dual citizen ceases to be an Australian citizen if they are convicted of certain Criminal Code offences including terrorism and treason-related offences, but also things like damaging Commonwealth property (s 29 Crimes Act 1914). Unlike s 33AA and 35, the dual citizen ceases to be an Australian citizen at the time of the conviction for certain behaviour.

Returning to the question of the possible relevance of the ACMA v Today FM case for interpretation of the Bill, it would appear that the regulatory frameworks are not analogous. Unlike the applicable regulatory framework in theACMA v Today FM case, the framework contemplated under the Bill does not appear to provide for the Minister to make a decision about stripping citizenship. In fact, it appears that the Bill has been specifically drafted to avoid this. Rather, revocation of citizenship is automatic.

It might be reasonable to form the view that, in the case of s 33AA and 35, citizenship is not removed until the Minister ‘becomes aware of conduct’ that forms the basis for revocation of citizenship and that, in issuing the notice, the Minister is really making a decision. However, in the Bill’s second reading speech, Immigration Minister Peter Dutton was clear to emphasise that ‘loss of citizenship will be immediate upon the person engaging in relevant conduct… (giving) notice does not affect when the loss of citizenship takes place’.[3]

If the Bill is passed, it seems likely that a legal challenge to its validity will follow. It remains to be seen whether a court will agree that it is possible for a statute to provide for citizenship to be automatically lost. What is clear, however, is that with no decision ostensibly being made, the High Court’s ruling in ACMA v Today FM is unlikely to be representative of how the Court may interpret the Bill from a regulatory perspective.