The Australian Senate is currently considering legislation that would allow government ministers to ask judges to consider stripping a person’s citizenship as punishment in certain cases of “serious crimes.”
Australia’s center-left Labor government introduced the bill this week after Australia’s High Court recently ruled that previous legislation giving the home affairs minister the power to revoke citizenship was invalid.
But Australian politicians are far from alone in wanting to decide who should have their citizenship revoked.
In Israel, two different ministers recently called for soccer players to lose their citizenship, in one case because a player represented Palestine in World Cup qualifying, and in another case, because the players did not did not hold up a sign when asked.
In the UK, Sajid Javid, then Home Secretary, revoked Shamima Begum’s citizenship in 2019 for traveling to Syria to join ISIL (ISIS). Since then, Begum has failed to overturn this decision in several appeals.
To better understand the legal and human rights implications of politicians choosing to lose their citizenship, Tel Aviv Tribune spoke to Ben Saul, UN special rapporteur on the promotion and protection of human rights and fundamental freedoms in the fight against terrorism.
Tel Aviv Tribune: What are the implications of recent court rulings on Australia’s citizenship stripping laws?
Ben Saul: In Australia, the previous government’s citizenship laws were based on a sort of legal fiction that if you committed certain types of terrorism it automatically meant your citizenship was lost because it demonstrated disloyalty and lack of allegiance.
The courts rejected this measure some time ago because they said that in reality, an administrative decision had to be made to strip someone of their citizenship. It can’t work automatically one way or another when the person involved doesn’t even necessarily know that they’ve lost their citizenship.
The second thing that the Australian courts and the High Court have said, in a series of decisions, is that the High Court regards deprivation of citizenship as a criminal sanction. And, under the Australian Constitution, this is a power that can only be exercised by a court.
So essentially what the courts have said is that the minister cannot make that decision. Because of the very serious consequences of losing citizenship, this amounts to punishment. Therefore, under the Australian Constitution, at least, only a court can impose this type of additional punishment beyond a criminal conviction.
AJ: How do Australian court decisions relate to the UK and, for example, the Shamima Begum case?
Saul: The Australian approach is very protective. So this restricts how you can revoke citizenship.
In other countries, it is a decision that can be made by a minister but can then be reviewed by a court. Or the minister goes to a court to make a decision, but it is not necessarily a criminal proceeding, but rather a civil proceeding.
So there are various ways to proceed. What is essential is that the hearing and the process be fair.
Thus, the security evidence against them must be properly disclosed so that they can effectively challenge the government’s allegations.
And secondly, the decision must be reviewed by a court and so there must be some form of judicial protection in that process.
The Australian approach goes even further and states that there must be protection by a criminal court order, which is a much stronger way of ensuring that safeguards are in place.***
AJ: In Israel, there have been proposals to further expand citizenship stripping powers. Could the proposed legislation have human rights implications?
Saul: A few years ago, Israel introduced laws banning citizenship in terrorism cases, but (a recent bill went further) expanding these laws.
One of the main concerns is that the legislation would allow someone to become stateless, which would be against international law.
One of the main restrictions on denationalizing people is that you can only do so if someone has a second nationality, and that nationality is available and effective.
What Israel is proposing to do is that you would lose Israeli citizenship, potentially be deported to, say, the West Bank, but you don’t have any other type of citizenship or nationality. This is clearly illegal under international law.
I remember @Israel that any expansion of powers to strip citizenship in relation to terrorism must meet the requirements of international law for legality, due process and judicial protection, and must not render any person stateless @IsraelMFA
— Prof Ben Saul – UNSR Human Rights and the fight against terrorism (@profbensaul) November 6, 2023
AJ: Is it possible for the deprivation of citizenship to be carried out in accordance with due process?
Saul: The lack of due process is a major concern in many countries.
Sometimes efforts to strip citizenship have been made by ministers or at the executive level of government, rather than by a court decision enforcing a full and fair hearing, allowing evidence to be tested and an independent decision-maker to be asked to a court to make a decision. decision.
If a minister – who is ultimately a politician in government – makes the decision, this is much more sensitive to political considerations and is not necessarily the best way to apply a legal standard.
AJ: Was citizenship revocation a common form of punishment historically?
Saul: Disqualification of citizenship is historically quite rare in the laws of most countries.
What is generally acceptable is if citizenship was acquired fraudulently by someone. So you are a foreign national, you come to live in another country, you obtain citizenship but you did it under false pretenses or with falsified documents.
The other historical type of category is cases of treason or betrayal, where your country is at war with another country and you do something to help the enemy, which shows some sort of disloyalty to your own country and These are wartime cases which have sometimes also resulted in loss of nationality.
AJ: Is this the case with governments accusing people of terrorism?
Saul: The difference is that most of the time in terrorism cases, citizenship is taken away from people who have committed acts of terrorism against a foreign government or people in a foreign country. So it’s not really directed at Australia, to use the example of Australia, and so it’s not as if there’s any disloyalty to Australia as such or a statement of your allegiance to Australia.
AJ: In some ways, is accusing people of disloyalty or betrayal something that seems a little old-fashioned?
Saul: That’s true, and a more modern view is that if people have citizenship here, have lived here and have connections here, etc., then it is our country’s responsibility to deal with the terrorist threat that they can represent.
So that could be through criminal prosecution and imprisoning people if they’ve done something wrong, and there are other anti-terrorism laws to address any other security threats that they might face.
***(Note: Tel Aviv Tribune spoke to Ben Saul ahead of legislation currently being considered by the Australian Senate being proposed this week. The new legislation would give ministers the ability to recommend that judges consider stripping citizenship as a sanction in certain legal cases. .)
This interview has been edited for length and clarity.
