Australia’s Denationalisation Laws: An International Law Perspective

International law acknowledges nationality as a human right and of fundamental importance to the protection of numerous other rights. Given its importance, there has been a growing use of denationalisation laws worldwide as a punitive measure to combat terrorism. Using Australia’s recent denationalisation laws as a case study, this blog post examines how the application of these laws may have implications on a State’s compliance with its international legal obligations, specifically on its duty to avoid statelessness, to afford procedural rights to its nationals, to comply with the principle of non-discrimination, as well as its obligations to other States.

1. Prohibition on the Arbitrary Deprivation of Nationality

Article 15(2) of the Universal Declaration of Human Rights (UDHR) prohibits the arbitrary deprivation of nationality. Conditions for the compliance of denationalisation laws with international standards were described in a 2013 report by the UN Secretary-General and further clarified in the 2020 guidelines on statelessness by the UN High Commissioner for Refugees.

As a general standard, measures must be authorised by law and have a well-defined basis. This requires both the prior existence of law and their reasonably specific application. Broad laws authorising denationalisation, such as those that make general references to the public good with extensive ministerial discretion, would fail to meet this requirement. In the IACHR case Ivcher Bronstein v Peru, Yupanqui, defence counsel and Professor of constitutional law, in his expert testimony commented that a regulation that allows the revocation of naturalisation based on national security considerations, but without requiring a specific cause to be stated, provides ‘a very broad and general concept, that could make the right to nationality meaningless’. Australia’s citizenship provisions are similarly broad: they apply to a broad range of convictions (where a conviction is relevant), provide the minister with non-compellable discretion, in some instances assume intent, and apply to individuals residing overseas.

Second, citizenship revocation must adhere to procedural standards of due process. It requires the provision of the right to appeal and the right to an effective remedy. Laws that fail to meet this standard may be considered arbitrary. Section 36B of the Australian Citizenship Act 2007 (Cth) (“the Act”) has the scope to deprive individuals of their nationality when they are outside Australian territory and thus without access to a judicial mechanism to review the decision. Moreover, the law does not provide for an appeal mechanism, prevents access to information relevant to the decision, and where citizenship-stripping is a punitive measure, interferes with the due process that prevents punishment without conviction. Section 36B (11) of the Act explicitly states that ‘[t]he rules of natural justice do not apply in relation to making a decision or exercising a power under this section’. Previously, Department of Home Affairs Minister Peter Dutton described the legislation as applying ‘automatically’: ‘Neither the Citizenship Loss Board nor I make decisions on whether an individual cease to be an Australian citizen. The provisions operate automatically by virtue of a person’s conduct’. While the recent amendment (following extensive criticisms) repealed the ‘automatic’ application and thereby acknowledged that a decision to revoke will ultimately need to be made by somebody, the ministerial decision provides no grounds for merits review and only limited avenues for judicial review, even when the subject is within Australian territory at the time of revocation.

Third, the proportionality of denationalisation measures must be assessed on a case-by-case basis. Proportionality is interpreted by the UNHCR and the EU ILEC guidelines to mean the weighing of the ‘interests and rights of the individual against the interests of the State’ along with the ‘human rights implications’ of nationality deprivation. Most of the Australian denationalisation provisions do not require proportionality assessment to be made before a decision is made.

2. Avoidance of Statelessness

Following the UK’s amendment of its nationality laws where the Home Secretary only needs to have ‘reasonable grounds to believe’ that the individual can acquire another nationality, the issue of statelessness has received renewed attention. In similar terms to the UK law, before an Australian Minister can strip a person of their citizenship, they only need to be satisfied that the individual could become a national or citizen of another country.

Australia has ratified the 1954 and 1961 Conventions relating to statelessness, which create positive obligations on States to afford certain rights to stateless persons and to implement measures to reduce and prevent statelessness. The duty to avoid statelessness is both reflective of human rights norms and a long-standing norm of international law that recognises a common interest amongst States that every individual holds a nationality. Statelessness renders the individual without political and civil personality, not only with respect to their former nationality but also in terms of their interactions with the community of nations.

The 1961 Convention restricts the ability of a State to revoke citizenship if it renders the person stateless, except in the case of fraudulent acquisition of citizenship. Despite UK laws influencing Australia’s amendments, the UK’s obligations under the Convention are substantially different to Australia’s, owing to a declaration made by the UK at its ratification of the Convention permitting it to invoke an existing right under its domestic law in cases involving inconsistent loyalty to the State. Australia acceded to the Convention without reservation or declaration and is therefore required to adhere to the Convention in its entirety.

Australia’s citizenship amendments altered its position from one requiring a determination that an individual is a de jure national of another State, to one requiring a determination of what a person’s nationality could become. Relevantly, the 1954 Convention requires an assessment of nationality at the time of any such determination. As clarified by the UNHCR: this is not ‘a historical nor a predictive exercise’. While Australian case law requires a Minister’s satisfaction to be ‘reasonably’ concluded, there are limited grounds for review. Specifically, a determination is no longer a question of fact (i.e. ‘is the person a dual citizen?’), and instead of a question of the reasonable formation of the decision. The amendments lead to a scenario where the Minister may apply their interpretation of the law of the foreign state, while that State applies the law differently, thus seeing the individual ineligible for citizenship/nationality – as seen in the case of Neil Prakash.

3. Non-Discrimination

The right to ‘non-discrimination’ has implications on the deprivation of citizenship insofar as segments of the citizenry would find their nationality more ‘deprivable’ than others. The operation of denationalisation laws effectively creates a hierarchy of ‘nationality’, where differential effects of the laws would be felt – by (1) ‘real’ nationals who cannot be denationalised, and (2) nationals who may acquire a second nationality.

International law requires nationality to reflect an equal and equalising status. To this end, it is a legal bond between an individual and a State which places the citizen in an equal position to other nationals of that State and it is a right acquired ‘without making a distinction about the way in which it was acquired’. While the Conventions on statelessness differentiate between mono and dual citizens on the basis of their vulnerability to statelessness, this is reflective of the Convention’s purpose: the avoidance of statelessness. As such, non-discrimination is a separate enquiry to that of statelessness.

Conversely, it has been argued that the differences in the removal of citizenship from one group as opposed to others is non-discriminatory due to the differing effects of the removal on some citizens compared to others. Not all citizens are ‘similarly situated’ and as such differential treatment does not amount to discrimination per se.

4. Obligations to Other States

While in principle a State has the right to regulate the acquisition and deprivation of nationality, States also owe obligations to other States. This is particularly relevant to convicted foreign fighters residing abroad. Upon entry by a State’s national into another’s territory, the receiving State has the right to deport foreign nationals to their State of origin, with the latter being obliged to receive them. The application of this right is however complicated in circumstances where the foreign fighters are being held by non-State actors who arguably are not subject to these obligations under international law.

This right is supplemented by a State’s international counter-terrorism obligations. States, for example, must prosecute or extradite terrorists so as to ensure that they do not enjoy impunity. Australia additionally has obligations to establish jurisdiction in relation to crimes by its nationals. Ben Saul suggests that unilateral actions denationalising individuals serve to undermine these obligations, arguing that without guarantees of prosecution or law enforcement it would allow “the cross-border movement of terrorists and impunity for terrorist crimes”.

This is contrary to the obligations imposed upon the UN Member States. Nearly 40 Security Council Resolutions in relation to terrorism have been passed since 9/11. Depriving a foreign terrorist fighter of citizenship breaches at least four key aspects of these resolutions: criminal prosecution of terrorists; prevention of terrorists’ international movement; taking action in accordance with IHRL obligations; and cooperation with other countries in dealing with terror threats.

Conclusion

Notwithstanding reservations regarding the effectiveness of Australian denationalisation law in preventing and punishing the impugned conduct, they provide a useful example in understanding how the operation of denationalisation laws may impact on a State’s compliance with international law. As the discussion above has shown, the operation of denationalisation laws may have international legal implications, not only when the citizenship deprivation provision is arbitrarily or unreasonably applied, but also where it creates de facto hierarchy between the country’s citizens. Further, while the impact of statelessness on individuals has received a lot of attention, a robust analysis of denationalisation laws must also take into account its effects on a State’s counter-terrorism obligations, including where a decision to strip citizenship creates a state of affairs that undermines multilateral efforts to combat the threat of terrorism.

Ali Latash is an LLM graduate from the University of Sydney.

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