The Parliamentary Joint Committee on Intelligence and Security is currently holding any inquiry into a Bill to deprive dual citizens of their Australian citizenship if they engage in particular sorts of conduct (including particular terrorist activities and foreign incursions and recruitment), defined by reference to offence provisions in the federal Criminal Code. In evidence before the Committee on Tuesday, Professor George Williams reportedly predicted a speedy High Court challenge to the Bill’s constitutionality:

UNSW professor George Williams told a Senate inquiry on Tuesday that it was the most “problematically drafted bill” he had ever seen, with more constitutional problems in it than any he had given evidence on. This included a law that allows ASIO to detain and question any Australian for up to a week and foreign fighter legislation aiming to restrain Australians returning from conflict zones in Syria and Iraq. Professor Williams had “no doubt” such a law would be challenged in the High Court and had already been approached by “prominent solicitors” who had clients facing charges that are included in the bill. “It’s such an obvious one to bring a challenge to; I don’t see why they wouldn’t to escape loss of their citizenship.”

But the High Court’s decision last year on Queensland’s bikie laws places a potential roadblock in the face of any such challenge: the requirement that the challenger have ‘standing’ to challenge the laws.

In Kuczborski v Queensland [2014] HCA 46, the High Court rejected a challenge by a Hells Angel member to laws barring members of his organisation from congregating in public and wearing their insignia in licensed premises. But the Court didn’t resolve challenges to other Queensland laws, including the infamous VLAD Act imposing draconian mandatory sentences on people who commit crimes as part of an organisation. The Court explained:

The plaintiff argued that…  he was entitled to know whether the impugned laws applied to him. It can be said immediately that they do apply to him, just as they apply to everyone else in Queensland. The plaintiff has no more interest than anyone else in clarifying what the law is. The pertinent question is whether the plaintiff has a sufficient interest to have his “rights and position clarified” by the declaration he seeks. Under the established requirements as to standing, the plaintiff does not have a sufficient interest in the validity of the laws… The challenged laws… do not impose any legal or practical restriction upon the plaintiff’s freedom of action: the plaintiff does not assert that he has broken, or that he intends to break, any existing laws; and if any assumption is to be made about the plaintiff’s activities in the future, it should be assumed that he will conduct his activities within the law so as to avoid prosecution and conviction.

In short, a person cannot challenge the constitutionality of a law that imposes an additional consequence for behaviour that is already prohibited under a valid law unless he or she has already been found  to have committed that behaviour (or has been, at least, accused of having committed it.) On this basis, a dual citizen could not challenge one of the Bill’s most controversial provisions, providing for automatic renunciation once someone commits certain conduct, e.g. a terrorist act, unless he or she has done something or is said to have done something that creates a risk of loss of Australian citizenship. Presumably, only a tiny fraction of Australia’s millions of dual citizens would be in that category.

At least Kuczborski could rest assured that he could challenge the Queensland laws once he was charged (or, at least, convicted) of a VLAD offence, prior to being subjected to the new punishment. However, dual citizens may not be so lucky, as the Bill’s provision on renunciation by conduct allows them to be deprived of Australian citizenship without any decision by anyone, court or executive. Rather, they instantly lose their citizenship the moment they engage in any of the relevant conduct. As Williams evocatively pointed out, they may only learn what has happened when they receive ‘a knock on the door’ and are put in immigration detention. In its bikie gang case, the High Court showed no sympathy to people facing the possibility of immediate loss of liberty, holding that Kuczborski also had no standing to challenge a law making it hard for any gang member to get bail. The majority wrote (at [259):

There is no basis for concluding that the plaintiff is affected in his rights or interests by the new provisions. His legal position would not be altered if these provisions were held to be invalid. He has not committed any offence. He is not an applicant for bail. It cannot be assumed that he will commit an offence, and so become an applicant for bail. Accordingly, the plaintiff has no standing to seek a declaration that these provisions are invalid.

This passage gives the unfortunate impression that the High Court regards bail as available only for people who ‘commit an offence’; actually, it’s for people who are charged with committing an offence, something that is not in their control. But the Court’s test would seem apt for dual citizens, who have no entitlement to a hearing (or the presumption of innocence) under the proposed provision on renunciation by conduct, and accordingly can seemingly only challenge their loss of citizenship after it has already occurred.