3432 ACC Report f/a 1 - Australian Citizenship

Australian Citizenship, before the Minister’s
deprivation power arises, is an important
safeguard which should continue.
Deprivation of Citizenship of suspected
war criminals
As set out in preceding paragraphs, the
Australian Citizenship Act 1948 provides that if
a person is convicted of making a material
false representation or of concealing a material
circumstance in relation to an Australian
Citizenship application, and the Minister is
satisfied that it would be contrary to the public
interest for that person to continue to be an
Australian Citizen, the person may be deprived
of Citizenship.
For many years prosecution for such an offence
had to be commenced within ten years of the
offence. In 1997 this time limit was removed
for Citizenship applications made from 1997
onwards. In addition, for Citizenship
applications made from 1997 onwards, the
Citizenship deprivation power was extended to
cover situations where a person obtained
Citizenship as a result of migration-related
fraud and is convicted of such fraud.
The consequence is that no prosecution for
Citizenship fraud leading to possible
deprivation of Citizenship can be commenced
in respect of an offence committed before
1989 and a prosecution for migration fraud is
relevant only to Citizenship applications made
after 1997.
Two submissions were received which raised in
detail the issue of alleged Second World War
war criminals who became Australian Citizens
before 1989. (A further two submissions note
the matter.) Both submissions which discuss
this issue substantively express opposition to
the existence of the old ten-year time limit as
frustrating any attempt to deprive of their
Citizenship individuals who for decades had
successfully concealed their criminality. It is
said that failure to reveal activities in the nature
of war crimes or crimes against humanity
amounts to the concealing of a material
circumstance which, but for the ten-year time
limit, would justify prosecution and conviction
which would then entitle the Minister to
deprive that person of Citizenship.
War crimes and crimes against humanity are
grave criminal matters to be punished under
the criminal law. The Council has serious
reservations about seeking to use Australian
Citizenship law as a substitute for prosecution
for war crimes under the criminal law.
In particular the Council is not attracted by the
prospect of retrospective legislation, such as
would be involved in now removing the effect
of the old ten year time limit, especially as it
would have unintended consequences. It
would potentially place in jeopardy the
Citizenship of any of the millions of Australian
Citizens granted Citizenship in the past fifty
years whenever it could be shown that in
some respect a person had failed when
seeking Citizenship (or in relation to migration)
to disclose whatever could be said to be a
material circumstance or had made a
statement that could be regarded as
misleading in a material way.
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