Section 36BA (1) requires the convicted person to be 18 years of age or more, an Australian citizen and conduct related to the conviction significantly serious as to demonstrate that the person has repudiated their allegiance to Australia.The court is required to consider various factors, including the scale and duration of the offending behaviour, the impact on the community, and whether the conduct was intended to cause loss of human life. Crucially, the bill ensures compliance with international obligations regarding statelessness:
Section 36BA (3) makes it clear that the provisions only apply to persons who hold more than one citizenship and that the stripping of Australian citizenship would not leave that person a non-citizen or with no nationality.Furthermore, the bill makes no distinction between those who acquired citizenship by birth and those who were naturalised. Once citizenship is stripped, Section 36BB empowers the Minister to facilitate the deportation of the individual as soon as practicable following their release from custody. The Statement of Compatibility with Human Rights acknowledges that while the bill limits certain rights under the International Covenant on Civil and Political Rights, such as the right to enter one's own country, these limitations are "reasonable, necessary and proportionate" to protect the rights of innocent persons to live free from the threat of terrorism.
The primary justification for this bill rests on the fundamental duty of the state to ensure the safety and security of its citizens. From a Hobbesian perspective, the social contract is predicated on the state's ability to provide protection; when an individual engages in terrorism, they fundamentally breach this contract and repudiate their allegiance to the sovereign community. As the explanatory memorandum states, the bill facilitates the removal of persons whose behaviour is "dangerous and threatens those who wish to live in a safe and peaceful democracy."
Furthermore, citizenship is not merely a legal status but a reflection of a "common bond" and shared values. By engaging in acts of terrorism, an individual demonstrates a total rejection of Australian values and democratic beliefs [Judgment]. It is therefore appropriate that the legal system provides a mechanism to formalise this severance of ties. The bill includes significant safeguards by requiring a judicial determination and ensuring that the individual does not become stateless, thereby adhering to international legal principles while prioritising the collective security of the Australian public.
The central objection to this bill is that it creates a two-tiered system of citizenship, undermining the principle of egalitarianism. By making only dual citizens subject to citizenship stripping, the law treats Australians differently based on their ancestry or secondary nationality. This creates a precarious form of citizenship for a specific subset of the population, suggesting that their status as Australians is conditional rather than absolute [Judgment].
Additionally, the bill raises significant human rights concerns regarding the right to enter and remain in one's own country. As noted in the Statement of Compatibility, the bill engages Article 12 of the ICCPR. Critics argue that deportation merely shifts the burden of managing dangerous individuals to other nations, which may be less equipped to monitor or rehabilitate them, potentially increasing global instability rather than solving the underlying issue of radicalisation. There is also the risk that the definition of "repudiation of allegiance" is sufficiently broad that it could be subject to judicial or political creep in the future, threatening the individual autonomy of citizens to hold dissenting or radical views that fall short of violent action [Judgment].
2026-03-30
House of Representatives
Before House of Representatives
JOYCE, Barnaby, MP
Unspecified
National Security, Discrimination / Human Rights, Criminal Law Reform