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the person left Australia after engaging in the conduct and, at the time that the person left Australia, the person had not been tried for any offence related to the conduct.

2. SERVICE WITH A TERRORIST ORGANISATION Section 35 of the Australian Citizenship Act already provided for loss of citizenship by operation of law – but only in a very specific and rare circumstance. That section provided that a person ceases to be an Australian citizen if the person is a national or citizen of a foreign country and serves in the armed forces of a country at war with Australia. It is easy to understand the rationale of this provision – the conduct is treasonous.24 The Allegiance Act extends s35 so that citizenship is also lost when a dual national "fights for, or is in the service of, a declared terrorist organisation".25 However, the conduct in question must take place outside Australia. This amendment is, to my mind, an uncontroversial modernisation so that the law is consistent with the nature of today's conflicts. It also makes this provision very likely to be used. While the number of people actually fighting for declared terrorist organisations is not published, Australia's Counter-Terrorism Strategy records that as of July 2015 over 120 Australians have travelled to the Syria and Iraq conflict zones.26 While originally the wording of the Bill as introduced captured conduct by humanitarian workers (such as UNICEF and Medecins Sans Frontieres) within the scope of service of a declared terrorist organisation, the PJCIS raised a concern27 and this alarming anomaly was rectified before the Allegiance Act was passed.28 3. EXPANDING THE WAYS CITIZENSHIP CAN BE LOST UPON CONVICTION Section 34 of the Australian Citizenship Act previously allowed the Minister a power to revoke the citizenship of some citizens in very specific circumstances. The new s35A allows the Minister to determine that a dual national ceases to be an Australian citizen upon conviction of a specified offence. While originally this was intended to be an automatic process, the Parliament acceded to the recommendation of the PJCIS29 and instead gave the Minister a discretion to revoke a person's citizenship after taking into account specific criteria. Essentially, to revoke citizenship the Minister must be satisfied that this would be in the public interest and that the conviction demonstrated a repudiation of the person's allegiance to Australia.

Sydney, Australia - December 16, 2014: Various newspapers reporting on the Sydney Siege, where a gunman held 18 people hostage in a 17-hour siege.

The Bill as introduced would have resulted in the automatic loss of citizenship for the specified offences including 2 that are punishable by a maximum penalty of only 5 years.30 One submitter to the PJCIS inquiry made the astute observation that as the High Court held that a custodial sentence of less than 3 years should not lead to the loss of the right to vote, it would be surprising if the High Court would allow the more fundamental right of citizenship (upon which the right to vote is based) to be removed for conduct that has not resulted in a lengthy prison sentence.31 In its final form, the Minister's power to cancel citizenship only applies where a person has been sentenced to a least 6 years imprisonment. Fortunately the amendments prompted by the PJCIS removed from the list of offences in s35A the offence of destroying or damaging Commonwealth property (s29 Crimes Act 1914 (Cth)). At first glance this might sound a serious offence, but my quick review of reported decisions relating to this offence revealed that prosecutions are usually against asylumseekers for minor damage to detention facilities such as a fence,32 a ceiling,33 a roof,34 light-bulbs35 or dinner plates.36 It was also used to prosecute the act of destroying tax returns.37 Given the exclusion of this offence, breaking a chair or even a pen at a Centrelink Office will no longer put dual nationals at risk of losing their citizenship despite the offence not being serious enough for jail!38 The PJCIS was asked to advise on whether s35A should be applied retrospectively. It decided that it should have some retrospective application,

subject to some qualifications.39 The Act as passed allows for a citizenship to be lost on the basis of a conviction recorded up to 10 years prior to the Allegiance Act's commencement. EFFECTIVENESS It is apparent that the Allegiance Act intends to influence behaviour by acting as a deterrent. Given that the conduct in question already creates serious risks of: •

death or injury (from involvement in the armed combat or terrorismrelated activities);

prosecution (with potentially lengthy sentences on conviction);

the cancellation of one's passport; or

the imposition of a control order,

it is seriously doubtful that adding the consequence of a loss of citizenship will be any further deterrent to those engaging in terrorism-related activities!40 However, as Professor Gillian Triggs, President of the Australian Human Rights Commission, points out the language and structure of the Allegiance Act could easily have a chilling effect on dual nationals more generally.41 Expressed another way: the Allegiance Act may have a social impact by marginalising parts of Australian society comprised principally of dual nationals.42 KEEPING PROBLEMS OFFSHORE One consequence of the Allegiance Act is that Australia may not be able to prosecute some dual nationals who commit offences overseas, potentially 23

Brief March 2016  
Brief March 2016