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Wednesday, 2 December 2015
Page: 9733

Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (18:52): Senator McKim, I understand perfectly your point, and we have a philosophical difference, which I respect, about whether or not a provision of this kind should be in the law. In relation to the way in which this provision works, though, I think you came—perhaps not meaning to do so—close to saying that it is the minister's issuance of a notice that has the effect of loss of citizenship. But I think you acknowledged in an earlier contribution that that is not so, that it is the conduct—subject to the statutory deeming of certain conduct to constitute a renunciation of citizenship—that is that which effects a loss of citizenship. So the minister's act is, as I keep saying, of a purely administrative character, and certain other administrative consequences may follow from it.

Senator McKim, in a sense what you are contending is really the very thing we are trying to avoid. What we are trying to avoid is the chapter III problem—and we think we have done so, by the way. Informed by very good legal advice, we consider we have done so. The minister is not acting in judicial or quasi-judicial or judge-like fashion, which is why we avoid terms like 'the standard of proof' and other terms that are akin to the manner in which judicial proceedings are conducted. All the minister does is issue a notice, and that notice is issued upon, as the provision says, him becoming aware of certain facts. As I have said to you, he would ordinarily become aware of those facts from a departmental brief, which one would expect to be based upon reports from policing and security agencies. Those reports would not be conclusions about criminality. It is important to say that. The same conduct that might constitute renunciation may also constitute a crime. In fact, you would expect it would. But they are not conclusions about criminality; they are reports of events—events that answer the statutory description. The test that the minister applies is, as I have explained to you, becoming aware, which has been decided in the administrative law jurisdiction by the courts, in a case where that term was used, is: 'acquire subjective knowledge of, or give rise to a clear mental apprehension of, the existence of conduct answering the statutory words'.

The other point I am at pains to make to you, Senator McKim, is: although the minister's issuance of a notice is not a judicial act—it is not an act with any juridical effect—that does not mean that the circumstances in which a person may renounce their citizenship by conduct are free of the capacity for judicial review. Senator McKim, you would be aware, I dare say, of the provisions of section 75 of the Constitution, which says:

75. In all matters--

…   …   …

(iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

…   …   …

(v.) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction.

If a person were to receive a notice from the minister saying, 'I have become aware that, by reason of the following conduct engaged in by you on or about such and such a date, you have, in accordance with section 33AA of the Citizenship Act, renounced your Australian citizenship,' it would be open to that person to seek judicial review of the minister's issuance of the notice. There is a constitutional right to do that in the original jurisdiction of the High Court, under section 75. They could also do it in another court as well, presumably in the Federal Court. The sort of relief they would seek would be a declaration that the circumstances recited in the minister's notice were not circumstances that pertained to them or that they had not engaged in conduct of the kind described in the notice, and they would probably seek an injunction against the minister and any other Commonwealth agency from giving effect to the minister's notice. I pointed that out in my letter last Friday to Mr Marles and Mr Dreyfus. So we do not exclude judicial review here. We do not exclude judicial review of the issuance of the notice, but the scheme, the mechanism, the method, of this provision is that it is not the issuance of the notice that determines the question of the loss of citizenship.