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[Vol 40:456
Australia Act amendments are largely silent as to these implications, although
in relation to revocation following criminal conviction, the Minister is
required to consider, inter alia, ‘Australia’s international relations’.297
It is unlawful for a state to deprive a citizen of nationality ‘for the sole
purpose of expelling him or her.’298 To do so ‘would be abusive, indeed
arbitrary within the meaning of article 15, paragraph 2, of the Universal
Declaration of Human Rights’ (namely, that ‘[n]o one shall be arbitrarily
deprived of his nationality’),299 and would trample upon the goodwill of other
states. Paul Weis explained this as ‘[a] sort of estoppel on the part of the State
of nationality’,300 observing that:
The good faith of a State which has admitted an alien on the assumption that
the State of his nationality is under an obligation to receive him back would
be deceived if by subsequent denationalisation this duty were to
be extinguished.301
It ‘would be contrary to international law not only as an abuse of right but as a
direct infringement of the sovereign rights of the State of residence, ie
of the right to expel aliens, which follows from its territorial supremacy.’302
Yet, ‘banishment’ appears to be a core motivation for the
Australian amendments.303
In sum, there are compelling reasons for concern that the Allegiance to
Australia Act does not contain sufficient safeguards to ensure compliance
with Australia’s obligations under the 1961 Convention. In addition, it risks
violating a range of other international law obligations, including under
human rights law.
297
Citizenship Act s 35A(1)(e)(vi).
298
Article 9 of the Draft Articles on the Expulsion of Aliens is reproduced in the Report of the
International Law Commission: Sixty-Fourth Session, UN GAOR, 67th sess, Supp No 10, UN
Doc A/67/10 (2012) 13 (‘Report of the International Law Commission’).
299
Report of the International Law Commission, UN Doc A/67/10, 32.
300
Weis, Nationality and Statelessness in International Law, above n 15, 55 n 146.
301
Ibid 55 (citations omitted).
302
Ibid 57.
303
The then Prime Minister Tony Abbott described the revocation provisions as effecting
banishment: Tony Abbott, ‘2015 Magna Carta Lecture’ (Speech delivered at Parliament
House, Canberra, 24 June 2015), cited in Irving and Thwaites, above n 227, 148.