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New citizenship laws rushed through in December 2023

There are Australian citizenship ceremonies scheduled to take place tomorrow, on Australia Day granting Australian citizenship to a significant number of overseas nationals.  In the last fiscal year nearly 200,000 people became Australian citizens.


All Australians were British subjects from Federation in 1901 until 1949. In 1949, almost 2,500 people from more than 35 countries became Australian citizens at Australian citizenship ceremonies.  From 1949 Australians were Australian citizens and British subjects until 1987 when the term British subject was dropped.  Since 1949, more than six million people from more than 200 nations have been granted Australian citizenship.  


Near the end of 2023 the Federal Government rushed through with bipartisan support new citizenship laws, namely the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023.


These recent changes to the Citizenship Act came about because of the High Court’s judgments in Benbrika v Minister for Home Affairs [2023] HCA 33 and Alexander v Minister for Home Affairs [2022] HCA 19.


The High Court’s decisions in these cases mean that a new citizenship cessation regime is needed,” said Minister for Home Affairs  Claire O’Neil in her speech to Parliament.


The new Bill is an improvement on the previous provisions where the power to deprive persons of their Australian citizenship was vested in the Federal Government. From now on it will be up to jthe Australian judiciary to consider whether the Australian citizenship of dual citizens should cease if they are convicted of serious convictions which “demonstrate that the person has repudiated their allegiance to Australia


Under the new Bill citizens aged 14 or older can have their citizenship stripped where an offence they were convicted of repudiated ‘Australian values’. However, it is not clear what ‘Australian values’ are. There is no statutory definition in the Citizenship Act.


The new laws pass to the Australian Courts the responsibility of defining 'Australian values' in the context of striping dual citizens of their Australian citizenship in circumstances where they have committed serious offences. Serious offences include cases of terrorism, espionage, advocating mutiny, foreign interference, and offences related to the use of explosives or lethal devices. Although, the Bill includes a broad range of offences some of which entail a relatively low level of harm and expands the list of serious offences beyond the serious terrorism offences originally targeted by the 2015 amendments to the citizenship laws.


The new provisions do not apply to those who only hold Australian citizenship. Meaning that for the exactly same serious offence the consequences for Australians holding dual citizenship would be of significantly greater gravity, for they could be deprived of the fundamental right to be at liberty in Australia.


In a media release the Law Council of Australia expressed concerns that the Bill was rushed through without prior referral to a parliamentary committee inquiry for the purpose of identifying any unintended consequences and determining whether the new laws strike an appropriate balance.


Any measures pursued to remove the citizenship of an Australian engages the key legal principles on which our democracy was founded, and therefore demand careful consideration by the Commonwealth Parliament and Australian citizens themselves. Such measures should be reserved for the most extraordinary of cases,” Law Council of Australia President, Mr Luke Murphy said.


In a news podcast by 7am, published in The Saturday Paper and The Monthly, discussed the new Bill with Professor Kim Rubenstein, a constitutional and citizenship expert. 


 “…it's a really, I think, profound question in relation to notions of law and the relationship of law with national identity. And so much of that does go back to the starting point of our Constitution itself and where citizenship fits in the Constitution,” Professor Rubenstein said.  “And the reality is that it doesn't, when the framers were determining the content of the Constitution and what sort of heads of power the Commonwealth would be able to make laws over, there was a deliberate decision not to include citizenship, in the Constitution for that purpose.” 


Only future court cases will be able to shed any light on how the new citizenship laws will be put into action. 

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