2017]
Citizenship Stripping Laws in the UK, Canada and Australia
29
citizenship of this, the reasons for citizenship loss and their rights of review.146
Both automatic-deprivation provisions apply only to dual citizens over the age
of 14.147
The idea that these provisions are ‘self-executing’ has been described as a
‘legal fiction’.148 As Helen Irving has noted, ‘[t]he law cannot apply itself. Someone or some authority must make a determination.’149 In practice, it appears
that such determinations will be made by the Citizenship Loss Board, an executive body created in early 2016, which Immigration and Border Protection
Minister Peter Dutton has said will
consider individual cases that have been worked up through ASIO, ASIS, the Department of Defence, [the] Department of Immigration and Border Protection,
Justice, [and] obviously the Attorney-General, Prime Minister and Cabinet.150
Despite it wielding this considerable power, no mention is made of the Citizenship Loss Board in Australian legislation. This shrouds its operation in secrecy,
makes its legal mandate unclear, and suggests that it operates according to its
own rules, free from typical administrative law constraints such as the requirement to make decisions reasonably and without bias.151 The Board is composed
of senior departmental secretaries from various government departments —
146
Ibid ss 33AA(10)–(11), 35(5), (6); s 35A(5)–(6), 35B(1)–(2). Notice is not required where the
Minister has determined that providing it could ‘prejudice the security, defence or international relations of Australia, or Australian law enforcement operations’: at ss 33AA(12), 35(7),
35A(7).
147
Ibid ss 33AA(1), 35(1).
148
Paul Farrell, ‘Government Officials of Secretive Citizenship Loss Board Named’, The Guardian
(Sydney, 22 July 2016) <www.theguardian.com/australia-news/2016/jul/22/governmentmembers-of-secretive-citizenship-loss-board-named>, archived at <https://perma.cc/BB9RDV7P>, quoting George Williams.
149
Helen Irving, ‘Bill Relies on Legal Fiction of Self-Executing Law to Revoke Citizenship’, The
Conversation (Online, 17 August 2015) <https://theconversation.com/bill-relies-on-legalfiction-of-self-executing-law-to-revoke-citizenship-46017>, archived at <https://perma.cc/
4863-PZKV>.
150
Santilla Chingaipe, ‘What Is the Citizenship Loss Board and How Will It Work?’, SBS News
(Sydney, 13 April 2016) <www.sbs.com.au/news/article/2016/04/14/what-citizenship-lossboard-and-how-will-it-work>, archived at <https://perma.cc/L9G6-MB2Q>, quoting Peter
Dutton, ‘Press Conference, Melbourne’ (Speech, Melbourne, 8 April 2016)
<www.minister.border.gov.au/peterdutton/2016/Pages/press-conference-8-april.aspx>,
archived at <https://perma.cc/U3A9-8WED>. See also George Williams, ‘Stripping of Citizenship a Loss in More Ways than One’, The Sydney Morning Herald (Sydney, 17 April 2016)
<www.smh.com.au/comment/stripping-of-citizenship-a-loss-in-more-ways-than-one20160417-go87as.html>, archived at <https://perma.cc/72M9-ABBL>.
151
Williams, ‘Stripping of Citizenship a Loss in More Ways than One’ (n 150).
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