The councils for civil liberties across Australia (Liberty Victoria, New South Wales Council for Civil Liberties, Queensland Council for Civil Liberties, South Australia Council for Civil Liberties and the Australian Council for Civil Liberties) collaborated around this submission because the issue of citizen stripping is of great national significance.
The councils for civil liberties across Australia (CCLs) strongly oppose the Bill. In the current political climate, where there has been significant bipartisan support for national security legislation, there is a danger that the Bill will be passed without it being carefully scrutinised.
Simply put, if enacted the Bill would amend the Australian Citizenship Act 2007 (Cth) (“the Act”) in an untested and radical way. It presents a significant threat to the separation of powers and the rule of law. Indeed, the Bill is founded on a significant reconceptualisation of the relationship between the State and the citizen.
If enacted the Bill would amend and extend s.35 of the Act, which provides a purported power to strip a person’s citizenship if he or she serves in the armed forces of a country at war with Australia. However, that provision is untested in Australian courts. Its origin lies in s.19 of the Nationality and Citizenship Act 1948 (Cth), which was enacted to address dual Australian and German citizens who had fought for the Axis powers during the Second World War. However, the power was never used. The procedure and the role for the courts in that process has never been clarified at law.
That should immediately raise concerns about the nature of that power and how, in practice, it could and should be exercised. In particular, it raises the question as to whether it would be lawful for the legislature and/or the executive to strip a person of citizenship without a central role for the judicial branch of government, and whether such a process may breach Chapter III of the Constitution.