One of the policy solutions being considered by the Australian Government to deal with the expected problem of returning Australian jihadists is to preclude their return to Australia, or expel them, by revoking their Australian citizenship.
A recently released report from the Independent National Security Legislation Monitor (INSLM) recommends that the Minister for Immigration and Border Protection be given the power to revoke citizenship on national security grounds.
This is not a new idea. Some years ago there were calls to revoke the Australian citizenship of suspected World War II war criminals in the hope that this would get them out of the country. We 'knew' they were guilty but couldn't actually prove it through a criminal justice process, so it was argued that an administrative decision under the Australian Citizenship Act would function as a work-around. The idea was never adopted, for good reason: there was no guarantee that anyone who lost their Australian citizenship in that way would actually be allowed to return to another country.
It is not clear what the expected outcome would be of the 'citizenship solution'. Revoking the Australian citizenship of someone engaged in jihadist activity would deny further access to Australia but would not stop the person from engaging in political violence elsewhere. Only prosecution, conviction and incarceration, whether overseas or in Australia, would achieve that.
Citizenship solutions are always harder in practice than they look.
The INSLM report suggests that Australia should respect its obligations under the 1961 UN Convention on the Reduction of Statelessness, and that revocation of citizenship should only occur in relation to jihadists who are dual nationals. Unfortunately, there is nothing in the report to tell us whether in fact there is any reason to believe that the suspected jihadists (about which Australia is rightly concerned) actually have a second citizenship, and therefore whether anyone's Australian citizenship could in reality be revoked while adhering to the UN Convention.
Then there is the question of how a decision to take away citizenship would be made. Existing Australian citizenship policy and law set a high bar for revocation. Before it can even be considered, the person must have been convicted of a serious offence (primarily, fraudulent acquisition of citizenship) committed before becoming a citizen. Offences committed after becoming a citizen are a matter for the criminal law and are not a basis for revocation of citizenship.There is no provision for loss of citizenship of an Australian-born citizen, except where the person is a dual citizen who serves in the armed forces of a country at war with Australia. For jihadists, would a conviction for some offence be required, or just suspicion? If suspicion is sufficient to take away a person's citizenship, the status of Australian citizenship would be seriously weakened.
The report moves on from the question of jihadists to make a broader condemnation of dual citizenship. INSLM 'does not see why, as a matter of public policy, an Australian citizen should also be able to be a citizen of another country' and 'by its nature, dual citizenship is deeply problematic'. It goes on to say that the granting of dual citizenship in Australia since 2002 'does not render it anything like traditional' and recommends that 'the 2002 legislated policy in favour of dual citizenship should be reconsidered'.
This analysis would probably come as a surprise to the estimated 4 million Australian citizens who enjoy dual citizenship.
Most Australian dual nationals are people who migrated to Australia and then acquired citizenship. Retention of their first citizenship is, in practice, a matter between them and their country of birth. There is not a lot the Australian Government can do about this, and it has not attempted to do anything since the establishment of Australian citizenship in 1949. The sensible policy priority, as in other migrant-receiving countries such as the US and Canada, has been to integrate migrants through encouraging the taking up of Australian citizenship, rather than to sever past linkages.
The anomaly in Australian citizenship law was that, until April 2002, an adult Australian citizen who was Australian-born lost his or her Australian citizenship if they took out the citizenship of another country. This created the ridiculous situation that an Australian-born person was in a much less favourable position than a migrant Australian citizen.
Implementation of this restrictive policy was in practice arbitrary, as the Australian Government had no way of knowing which Australians had taken out citizenship in another country. The only people that were recorded as losing their Australian citizenship were those who were unlucky enough to reveal their acquisition of foreign citizenship, perhaps while in contact with an Australian mission abroad. For example, an Australian woman seeking to register a child born overseas as an Australian citizen might find that, not only was the child not a citizen, but that her own Australian passport had to be confiscated on the grounds that she had not been an Australian citizen for years, by virtue of acquisition of another citizenship.
This restrictive approach became completely untenable when Australian-born citizens began to live and work abroad in much larger numbers. Many Australians living overseas found that for practical reasons they needed to take out foreign citizenship, but wanted to keep their personal and family links with Australia to allow frequent travel between countries and possible return. The Australian approach to dual citizenship was also increasingly out of step with the US, Canada and the UK, which permitted their nationals to take out another citizenship without loss of their original citizenship.
The Coalition government secured the passage of legislation in 2002 to stop Australians losing their citizenship through acquisition of another. This was on the advice of a report of the Australian Citizenship Council chaired by former Governor General and Justice of the High Court Ninian Stephen. A key justification was that Australia would benefit economically and socially by retaining linkages with its expanding diaspora, even if some of them also became citizens of other countries.
That argument remains valid.
Dual citizenship is not without its problems, including in the consular realm, but the current policy settings remain in the national interest and should be left alone. Tinkering with them is unlikely to have any impact at all on the Australian jihadist problem.
Photo by Flickr user mechanical turk.