What right does Australia have to defend itself against terrorists? – Phillip Alphonse

In the post-9/11 zeitgeist, the ever-present fear of terrorism has reignited debate regarding whether a State has the right of self-defence against attacks by non-State actors. As Australia targets non-State actors such as ISIS and Al-Qaeda fighters in self-defence, the legality of such actions in international law must be questioned.

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The Good Citizen of Australia: Human Rights and Citizenship in the Twenty-First Century – An Address by Hilary Charlesworth

Introduction

On Thursday, 12 November 2015, Professor Hilary Charlesworth delivered the annual Nelson Mandela Lecture at the University of South Australia. The podcast can be accessed by clicking here.

Charlesworth’s lecture focused on proposals to amend the Australian Citizenship Act 2007 (Cth) to use the revocation of citizenship as a tool to deter terrorism. These proposals were first put before the House of Representatives in June 2015 in the form of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Bill), and were reintroduced in an amended form on 12 November 2015. This article canvasses Charlesworth’s examination of the amended Bill, with a particular focus on her discussion of the compatibility of the Bill with international human rights law.

Overview of the Proposals

Charlesworth commenced the lecture by highlighting that the Bill envisages two distinct bases for the revocation of citizenship of dual nationals, being persons who are citizens of Australia and one other country. Under the first basis, citizenship automatically ceases upon engagement in specified conduct, such as performing a terrorist act, assisting or financing terrorists (proposed s 33AA) and fighting for a ‘declared organisation’ (proposed s 35). Under these provisions, citizenship ceases immediately upon the person engaging in the specified conduct, and the Minister for Immigration and Border Protection (Minister) is simply required to give notice that the person’s citizenship has been revoked (ss 33AA(10), (11), 35(2)). However, immediately following the issuance of the notice, the Bill requires that the Minister consider whether to rescind the notice and exempt the person from the operation of the provision (ss 33A(15), 35(9)). In deciding whether to do this, the Minister is to have regard to factors including the severity of the matters that were the basis of the notice and the degree of threat posed by the person.

Under the second of the basis, the Minister may make a determination in writing that a person ceases to be an Australian citizen if they have been convicted of a specified offence. As with the first basis, the Minister is required to give notice of the revocation of citizenship (s 35A(5)).

However, under both bases for the revocation of citizenship, the Minister is not required to give notice of the revocation of citizenship if the Minister is satisfied that ‘giving notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations’ (ss 33A(13), 35(7), 35A(7)).

Compatibility with International Human Rights Law

Charlesworth highlighted that, while the amended Bill reflects a significant improvement to the initial proposals, particularly in relation to how the Bill safeguards the rights of children, substantial tensions remain between the terms of the Bill and international human rights law.

 Right to a Fair Trial

 The right to a fair trial is enshrined in Art 14 of the International Covenant on Civil and Political Rights (‘ICCPR’). This right requires that a person be informed of the case against them, have the opportunity to test the evidence against them and to testify. Under proposed ss 33AA and 35, renunciation of citizenship occurs without warning or any form of judicial scrutiny of the evidence of the conduct that is deemed to be inconsistent with the person’s allegiance to Australia. While the Minister is required to consider whether to exempt the person from the operation of the laws, in doing so, the Minister is not required to have regard to any submissions by the person whose citizenship has been revoked. Under proposed s 35A, the person whose citizenship is to be revoked similarly lacks any right to be heard in relation to the revocation. The intention to subvert the right to be heard is made explicit by provisions that state that the rules of natural justice do not apply to the Minister’s exercise of power under the provisions (ss 33AA(17), 35(11), 35A(11)).

Double Punishment

The right to protection against double punishment is provided for in Art 14(7) of the ICCPR. As discussed in the report by the Joint Parliamentary Committee on Human Rights, ‘An individual subjected to both the automatic loss of citizenship and a criminal conviction and punishment for the same conduct will effectively suffer double punishment’. Charlesworth said that this result would be in clear violation of Art 14(7).

Rights of Children

The initial version of the Bill was plainly inconsistent with Australia’s obligation under Art 3 of the Convention on the Rights of the Child to ensure that, in all actions concerning children, the best interests of the child is a primary consideration. Charlesworth acknowledged that many of these inconsistencies have been addressed in the amended Bill. For example, while the provisions in the initial proposals applied to persons of all ages, proposed ss 33A and 35 only apply to persons aged 14 or over, meaning that the citizenship of children under 14 years of age cannot be automatically revoked. Further, if the person is under the age of 18, the Minister is required to consider whether to exempt the person with regard to the best interests of the child as a primary consideration, being a factor that the Minister was not required to have regard to under the version of the Bill initially put before House of Representatives.  However, proposed s 35A applies to persons of all ages.

Does the Bill Satisfy Established Criteria?

 Charlesworth then moved on to explore whether the Bill satisfies the criteria proposed by former United Nations High Commissioner for Human Rights, Mary Robinson, to help build human rights into measures dealing with terrorism. These criteria include that the measures use precise terms, conform to the principles of proportionality and non-discrimination, be compatible with human rights treaties and be necessary in a democratic society. Charlesworth considered that the Bill ‘comes up short’ with regard to all of these criteria.

The Human Rights Compatibility Statement put before the House of Representatives states that ‘the Government considers that the measures in the Bill are appropriate and proportionate in light of the existing and emerged threats to national security’. However, Charlesworth deemed the analysis in the Statement to be ‘cursory and unsatisfactory’. Charlesworth highlighted that, as it currently stands, the Bill could capture religious charities training people with community skills, such as public speaking or accounting practices, that could later be put to use in support of terrorist activities, indicating that the Bill may not conform to the principle of proportionality. In addition, the Bill fails to conform to the principle of non-discrimination due to its application to dual nationals only, and contains ‘contested and vague terms’.  For example, the purpose of the Bill in s 4 suggests that commitment to the ‘shared values of the Australian community’ is a prerequisite for citizenship. Section 4 of the Bill provides that the Bill’s purpose is to provide for the revocation of Australian citizenship on grounds of conduct that is ‘incompatible with the shared values of the Australian community’.  Using value-based language, which could be deployed as an interpretive aid by a court, could have unintended consequences.

Conclusion

Professor Charlesworth concluded her lecture by reflecting on the true worth of laws such as the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, which are oppressive or appear discriminatory, in combating terrorism. According to Charlesworth, research reveals that alienation and humiliation play a large part in the decision to engage in terrorism, and ‘true security depends on broadening respect for human rights rather than treating human rights as dispensable when the going gets tough’.