guidance on the question of deprivation of nationality; the former, from a wider international
law perspective, and the latter, more specifically in relation to the 1961 Convention.
Accordingly, state discretion in this area is subject to the individual right to nationality, 98 the
prohibition of arbitrary deprivation of nationality,99 the prohibition of discrimination100 and
the obligation to avoid statelessness.101 Furthermore, the impact of nationality deprivation on
the enjoyment of other human rights, humanitarian and refugee law obligations and
standards must be taken into consideration when assessing the legality of citizenship
deprivation. These include, the right to enter and remain in one’s own country, the
prohibition of refoulement, the prohibition of torture and cruel, inhuman or degrading
treatment or punishment, the liberty and security of the person the right to private and
family life; legal personhood and the rights of the child.102 Any measures to deprive
nationality must also comply with due process safeguards and the right to a fair trial.103
55
In 2015 the Australian Parliament passed amendments to the Citizenship Act through the
Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) that broadened the
Government’s power to strip Australian nationals of their citizenship.104 These amendments
included:
55.1
55.2
55.3
56
The introduction of section 33A, allowing citizenship cessation if a person
engages in various terrorist activities deemed ‘[inconsistent] with their allegiance
to Australia’;105
The amendment of section 35, providing for citizenship cessation due to service
in the armed forced of an enemy country or a declared terrorist organisation
defined in section 35AA;106
The introduction of section 35A, providing for citizenship cessation upon the
Minister’s determination if a person has been convicted for terrorism offences or
certain other offences demonstrating a ‘[repudiation of] their allegiance to
Australia’.107
Under the 1961 Convention, deprivation of nationality is generally prohibited where it would
render a person stateless.108 Although Article 8(3) of the 1961 Convention contains a narrow
set of exceptions under which a state may deprive a person of nationality even where that
may render the person stateless, the exclusion clause is applicable only if the state made a
declaration to that effect at the time of accession. Australia did not make such a
November 2013 (“Tunis Conclusions”) and the Expert Meeting on Developments related to Deprivation of Nationality held in Geneva,
Switzerland on 5-6 December 2018.
98 Human Rights Council Resolution 7/10, Human rights and arbitrary deprivation of nationality, UN Doc A/HRC/RES/7/10 (27 March 2008);
Human Rights Council Resolution 10/13, Human rights and arbitrary deprivation of nationality, UN Doc A/HRC/RES/10/13 (26 March 2009);
Human Rights Council Resolution 13/2, Human rights and arbitrary deprivation of nationality, UN Doc A/HRC/RES/13/2 (24 April 2010);
Human Rights Council Resolution 20/4, The right to a nationality: women and children, UN Doc A/HRC/RES/20/4 (16 July 2012); Human
Rights Council Resolution 20/5, Human rights and arbitrary deprivation of nationality, UN Doc A/HRC/RES/20/5 (16 July 2012); Human
Rights Council Resolution 26/14, Human rights and arbitrary deprivation of nationality, UN Doc A/HRC/RES/26/14 (11 July 2014); Human
Rights Council Resolution 32/5, Human rights and arbitrary deprivation of nationality, UN Doc A/HRC/RES/32/5 (15 July 2016).
99 Principles on Deprivation of Nationality as a National Security Measure, March 2020. Available at:
https://files.institutesi.org/PRINCIPLES.pdf., Principle 7. See also, the Draft Commentary to the Principles, available at:
files.institutesi.org/PRINCIPLES_Draft_Commentary.pdf.
100
Ibid Principle 6.
101 Ibid Principle 5.
102 Ibid Principle 9.
103 Ibid Principle 8
104
Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth).
105 Australian Citizenship Act (n 34) s 33AA.
106 Ibid ss 35, 35AA.
107 Ibid s 35A.
108 Convention on the Reduction of Statelessness (n 25) art 8(1). See also, the UNHCR, Guidelines on Statelessness No. 5 (above n 97).
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