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Australian Citizenship Amendment (Citizenship Cessation) Bill 2020

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2019

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP CESSATION) BILL 2019           

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for Home Affairs,

the Hon. Peter Dutton MP)



Australian Citizenship Amendment (Citizenship Cessation) Bill 2019    

OUTLINE

In 2015, the current terrorism-related citizenship loss provisions were included in the Australian Citizenship Act because of the threat that foreign terrorist fighters presented to Australia and its interests. These provisions have helped protect the Australian community and ensure Australian citizenship remains compatible with the shared values of the Australian community. Notwithstanding, around 80 Australians of counter-terrorism interest are believed to be still in Syria and Iraq, some of whom may seek to return to Australia.

 

Against that backdrop, the Independent National Security Legislation Monitor (INSLM) recently reviewed the operation, effectiveness and implications of the citizenship loss provisions, and reported to the Attorney General on 15 August 2019.  The INSLM’s key recommendation is that current ‘operation of law’ model, whereby a dual-national’s Australian citizenship is automatically renounced through their actions, be replaced by a Ministerial decision model, such that the Minister may take in to account a broader range of considerations in determining whether to cease an individual’s citizenship. This Bill will implement this recommendation. It will also address other limitations in the legislation to enable citizenship loss to operate more effectively alongside other terrorism mitigation measures, and to ensure optimal decision-making for Australia’s national security.

 

The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 amends Division 3 of Part 2 of Australian Citizenship Act 2007 (the Act) to provide that, at the discretion of the Minister for Home Affairs, a person who is a national or citizen of a country other than Australia ceases to be an Australian citizen if the person acts inconsistently with their allegiance to Australia by :

 

·          engaging in specified terrorism-related conduct;

·          fighting for, or being in the service of, a declared terrorist organisation outside Australia. A declared terrorist organisation is any terrorist organisation within the meaning of paragraph (b) of the definition of a terrorist organisation in subsection 102.1(1) of the Criminal Code, that the Minister, by legislative instrument, declares is a declared terrorist organisation for the purposes of this section;

·          engaging in conduct that results in a conviction for a specified terrorism offence, and sentenced to a period of imprisonment of at least 3 years, or periods totalling at least 3 years.

 

The amendments provide for a period in which the individual subject to a determination resulting in the cessation of their citizenship can apply to the Minister for Home Affairs to have this determination revoked. It also provides for the Minister for Home Affairs to revoke a determination on his or her own initiative, or for the determination to be automatically revoked in certain circumstances.

The Bill also makes a number of other amendments to improve the effectiveness of the citizenship cessation provisions, including:

  • transitional provisions that deal with cases where a person may have lost their citizenship under the current provisions but for whom there has been no Ministerial awareness. Any new cases that come to light will be treated under the provisions of the Bill;
  • amending the sentence term threshold for which a person convicted of a specified terrorism offence may be considered for citizenship cessation, from 6 years to 3 years;
  • extending the time period in which persons convicted of a specified terrorism offence resulting in at least 3 years imprisonment may be considered for citizenship cessation, such that persons convicted of such a specified terrorism offence from 29 May 2003 could be considered for citizenship cessation;
  • extending the time period in which persons who engaged in specified conduct may be considered for citizenship cessation, such that conduct engaged in after 29 May 2003 could be considered for citizenship cessation (compared to 12 December 2015 at present).

 

financial impact statement

 

The financial impact of the Bill is low.  Any costs will be met from within existing resources.

 



 

statement OF COMPATIBILITY with Human rights

 

A Statement of Compatibility with Human Rights has been completed in relation to the Bill and assesses that the Bill is compatible with Australia’s human rights obligations. A copy of the Statement of Compatibility with Human Rights is at Attachment A .

AUSTRALIAN CITIZENSHIP AMENDMENTS (CITIZENSHIP CESSATION) BILL 2019        

Notes on individual sections

Part 1­ Preliminary

Section 1         Short title

1.       Section 1 provides for the short title of the Act to be the Australian Citizenship Amendments (Citizenship Cessation) Bill 2019.        

 

Section 2         Commencement

2.       Subsection 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

3.       Table item 1 provides that this Act will commence on the day after this Act receives Royal Assent.

 

4.       A note explains that this table relates only to the provisions of this Act as originally enacted.  It will not be amended to deal with any later amendments of this Act.

 

5.       Subsection 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

 

Section 3         Schedules

6.       Section 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned . Any other item in a Schedule has effect according to its terms.

 

7.       Schedule 1 to this Act sets out amendments to the Australian Citizenship Act 2007 .

 

Schedule 1 - Amendments

Part 1 Amendments

Australian Citizenship Act 2007

8.       Part 1 sets out amendments to the Australian Citizenship Act 2007 (the Citizenship Act).

1  Subsection 29(2) (note 2)

 

9.       This item makes consequential amendments to Note 2 of existing subsection 29(2) of the Citizenship Act. Note 2 advises that a person who has ceased to be an Australian citizen under section 34, 34A or 35 may apply to become an Australian citizen again under the subdivision A, AA or B of the Citizenship Act.

 

10.   This item removes section 35 from Note 2, as a person who lost their citizenship under section 35 will no longer be able to apply for Australian citizenship again under the provisions set out in Note 2.

Item 2  Section 32A (heading)

 

11.   This item repeals the heading to existing section 32A and replaces it with the heading “Subdivision A - Simplified outline of this Division” followed by a subheading, “32A Simplified outline of this Division”, which replicates the heading that was repealed.

 

12.   The purpose of this amendment is to enable Division 3 of Part 2 of the Citizenship to be restructured into subdivisions to improve the clarity and usability of Division 3.

 

13.   The effect of this amendment is merely to facilitate a drafting restructure of Division 3 and has no legal effect.

Item 3  Section 32A

 

14.   Section 32A provides a simplified outline of Division 3 of the Citizenship Act, which relates to the Cessation of Australian Citizenship. It sets out the five ways in which a person can cease to be an Australian citizen. It currently sets out that one such way is: “you engage in various kinds of conduct inconsistent with allegiance to Australia” as set out in sections 33AA, 35, 35A.

 

15.   Item 3 omits this statement. It is replaced at item 5 by a statement that makes it clear that cessation of citizenship will occur through a Ministerial determination.

Item 4  Section 32A

 

16.   Item 4 is consequential to the restructuring of Division 3 of Part 2 of the Citizenship Act, it omits the words “section 36” in the simplified outline of the Act in existing section 32A and substitutes “section 36; or”.

 

17.   The purpose of this amendment is to allow for an extra dot point to be included after the words “section 36”. In existing section 32A this is the final dot point in the list.

 

18.   Item 4 has no legal effect. It is included to facilitate the drafting of the restructured Division.

Item 5  At the end of section 32A

 

19.   Item 5 adds another dot point to the list in existing section 32A, which provides a simplified outline of Division 3 of Part 2 of the Citizenship Act:

 

·          for certain conduct or convictions, the Minister can make a determination ceasing your citizenship if the Minister is satisfied you have repudiated your allegiance to Australia and that it would be contrary to the public interest for you to remain an Australia citizen: see Subdivision C (citizenship cessation determinations).

 

20.   This item makes clear that citizenship cessation will no longer occur automatically as a result of a person’s conduct. Instead, citizenship cessation will occur through a Ministerial decision, where the Minister is satisfied that the conduct demonstrates repudiation of the person’s allegiance to Australia and that it would not be in the public interest for that person to remain an Australian citizen.

 

21.   This item replaces the dot point that was repealed by Item 3 of this schedule.

Item 6  After section 32A

 

22.   Item 6 inserts the heading “Subdivision B - Citizenship renunciation and revocation”.

 

23.   This item has no legal effect, and is inserted to support the drafting restructure of Division 3 of part 2 of the Citizenship Act.

Item 7  Section 33AA

 

24.   This item repeals existing subsection 33AA. Existing section 33AA provides for cessation of Australian citizenship by operation of law where a person engages in specified terrorist-related conduct.

 

25.   Cessation of citizenship for engaging in specified terrorism-related conduct is dealt with in this Bill under new section 36B, which is inserted at item 9 of this schedule.

Item 8  Sections 35 to 35B

 

26.   Item 8 repeals existing sections 35, 35AA, 35AB, 35A and 35B.

 

27.   The content of existing section 35AA is replaced, with consequential amendments, at new section 36C, as inserted by item 9 of this schedule. The content of existing section 35AB is replaced at new subsection 36B(8), as inserted by item 9 of this schedule.

 

28.   The purpose of repealing sections 35AA and 35AB is to facilitate the drafting restructure of Division 3 of Part 2 of the Act.

 

29.   The repeal of existing sections 35, 35A and 35B is to facilitate citizenship cessation to occur by Ministerial determination. The matters dealt with in existing sections 35, 35A and 35B are dealt with in new sections 36B, 36D and 36E, as inserted by Item 9 of this schedule.

Item 9  Section 36A

 

30.   Item 9 repeals section existing section 36A of the Citizenship Act and substitutes new Subdivision C, which sets out the sections relating to citizenship cessation determinations.

 

31.   The content of existing section 36A is replaced, with consequential amendments, at the end of this item at section 36L.

 

32.   The title of new Subdivision C, as inserted by this item is “Subdivision C - Citizenship cessation determinations”. This title makes it clear that Subdivision C deals with matters relating to citizenship cessation determinations. 

 

36A  Purpose of this Subdivision

 

33.   New section 36A inserts a statement outlining the purpose of this Subdivision:

 

·          This Subdivision is enacted because the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.

 

34.   The purpose of this clause is to articulate clearly Parliament’s intention and reason for enacting Subdivision C of Division 3 of Part 2 of the Citizenship Act.

 

35.   “Allegiance” is the legal concept referred to by the High Court in Singh v Commonwealth (2004) 209 ALR 355 and Koroitamana v Commonwealth (2006) 227 CLR 31.  The ordinary meaning of “allegiance” is (relevantly) “the obligation of a subject or citizen to their sovereign or government; duty owed to a sovereign or state” (Macquarie Dictionary, 5th ed (2009)). A citizen’s duty of allegiance is not created by the Citizenship Act, but is rather recognised by it.

 

36.   The concept of ‘allegiance’ is central to the term ‘alien’ in section 51(xix) of the Constitution. The High Court judgement in Koroitamana demonstrates that an alien is a person who does not owe allegiance to Australia.

36B  Citizenship cessation determination for certain conduct

 

37.   New section 36B provides for cessation of citizenship on determination of the Minister, where certain conduct is engaged in. New section 36B consolidates existing sections 33AA and 35 which are repealed by items 7 and 8 of this schedule, respectively.

 

38.   The title of new section 36B is Citizenship cessation determination for certain conduct.

 

39.   This title makes it clear that new section 36B will provide for citizenship cessation to occur by a determination, rather than cessation occurring by operation of law if a person engages in certain conduct.

 

40.   New subsection 36B(1) provides the authority for which the Minister may make a decision to cease the Australian citizenship of a person aged 14 years or older, if they engage in the conduct specified in new section 36B. New paragraphs 36B(1)(a)-(c) set out the criteria that the Minister may have regard to when making such a determination. 

 

41.   The Minister may only consider making a determination under new subsection 36B(1) in relation to a person who is aged 14 years or older. This is consistent with existing subsections 33AA(1) and 35(1), and also with existing counter-terrorism measures relating to control orders and temporary exclusion orders.

 

42.   New paragraph 36B(1)(a) provides that the conduct the Minister must be satisfied a person has engaged in is set out in new subsection 36B(5). New subparagraphs 36B(1)(a)(i) and (ii) set out that the conduct set out in new subsection 36B(5) must have been engaged in:

 

·          outside Australia 36B(1)(a)(i)) or

·          in Australia if the conduct is specified in new paragraphs 36B(5)(a)-(h), but the person has since left Australia and not been tried for an offence relating to the conduct (36B(1)(a)(ii)).

 

43.   New subparagraph 36B(1)(a)(ii) requires the person to have left Australia at the time the Ministerial determination is made.

 

44.   New paragraph 36B(1)(b) requires that the conduct the Minister must be satisfied of is conduct which demonstrates that the person has repudiated their allegiance to Australia.

 

45.   Allegiance is a duty owed by all citizens to their sovereign or state. A citizen's duty of allegiance to Australia is not created by the Citizenship Act, but it is recognised by it. As such, existing sections 33AA and 35 were inserted into the Citizenship Act to recognise that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens who have engaged in certain types of conduct that are incompatible with the shared values of the Australian community may thereby demonstrate that they have severed that bond and repudiated their allegiance to Australia.

 

46.   New section 36B retains that purpose, and new paragraph 36B(1)(b) ensures that a person’s citizenship cannot be ceased unless the Minister is satisfied that their conduct repudiated their allegiance to Australia. A person who, for example, unknowingly participated in conduct set out in new subsection 36B(5) is unlikely to satisfy the Minister that they have repudiated their allegiance to Australia.

 

47.   The effect of new paragraph 36B(1)(b) is to make clear the conduct demonstrates the person has repudiated their allegiance to Australia. This is in line with the purpose clause at new section 36A.

 

48.   Existing subsection 33AA(3) provides that a person’s citizenship would only cease under subsection 33AA(1) if the person engaged in the conduct specified in paragraph 33AA(2)(a) - (h) with the requisite intent:

 

·          of advancing a political, religious or ideological cause; and

·          with the intention of:

o coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

o intimidating the public or a section of the public.

 

49.    The requirement that a person engages in the specified conduct with the intent described in subsection 33AA(3) has not been reproduced in this Bill. The omission of the intent element from new section 36B is supported by the requirement that a person has repudiated their allegiance to Australia, as it serves to narrow the class of people that may otherwise be subject to the provisions.

 

50.   New paragraph 36B(1)(c) provides that the Minister must be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

 

51.   New paragraph 36B(1)(c) also provides a signpost to new section 36E, which sets out the matters the Minister may have regard to when considering the public interest.

 

52.   The purpose of this amendment is to require the Minister to consider the public interest before making a determination that a person’s citizenship should be ceased under new section 36B. This may include considerations such as whether the person poses an ongoing threat to the Australian community, Australia’s international relations and whether the person is likely to be prosecuted in relation to matters connected with the relevant conduct.

 

53.   The assessment of the public interest, as required by paragraph 36C(1)(c), is by reference to the purpose of the statutory scheme i.e. citizenship cessation for terrorism-related conduct. The application of the public interest test will require a balancing of competing interests and will be a question of fact and degree ( Hogan v Hinch (2011) 243 CLR 506). Public interest consideration in this context may include matters such as public confidence in the safety of the Australian community, actual public safety, the need for deterrence and the impact on the person. 

54.   The Minister is well placed to make an assessment of public interest as an elected member of the Parliament. The Minister represents the Australian community and has a particular insight into Australian community standards and values and if it would be contrary to the public interest for the person to remain an Australian citizen.

55.   The note after new subsection 36B(1) explains that a person has review rights in relation to a determination made under new subsection 36B(1). Such a determination is subject to judicial review in the High Court of Australia under section 75(v) of the Constitution or in the Federal Court of Australia under section 39B of the Judiciary Act 1903 .

 

56.   The note also provides a signpost to new section 36H, which sets out that an affected person may apply to the Minister for revocation of a citizenship cessation determination.

 

57.   The exercise by the Minister of the discretions in the Bill is subject to review by the High Court and the Federal Court. Section 75 of the Constitution gives the High Court original jurisdiction to hear all matters. Relevantly, 75(v) of the Constitution provides that the court may hear a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

58.   Section 39B of the Judiciary Act 1903 also gives the Federal Court of Australia original jurisdiction to, amongst other matters, hear matters in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

59.   New subsection 36B(2) provides that the Minister must not make a determination in relation to a person if the Minister is satisfied that such a determination would result in the person becoming someone who is not a national or citizen of any country.

 

60.   The operation of new section 36B is limited to persons that the Minister is satisfied are nationals or citizens of a country other than Australia. The purpose of this amendment is to ensure that the application of this provision will not result in a person becoming stateless. 

 

61.   The term ‘national or citizen’ is consistent with existing sections 33AA and 35. It is used because some persons may be legally entitled to ‘nationality’ of a country but not ‘citizenship’.

 

62.   The requirement that the Minister be satisfied that a person would not become a person who is not a national or citizen of any country differs slightly from the formulation in the provision in existing sections 33AA and 35 of the Citizenship Act. Currently, a person’s citizenship can only cease under section 33AA or 35 of the Citizenship Act if, as a matter of fact, they are a national or citizen of another country.

 

63.   In order to facilitate the Minister’s power to make a determination with regard to cessation of citizenship under new section 36B(1), the Minister needs to be satisfied that the person would not become a person who is not a national or citizen of any country. The Minister will be required to turn his or her mind to the issue, using the materials available to him or her at the time. This adjusts the current threshold in relation to this issue, and adds additional safeguards, namely:

 

·          the Minister must revoke his decision on application by a person, under new subparagraph 36H(3)(a)(i) if he is satisfied that a person is not a national or citizen of any country.

·          The determination will be automatically revoked under new paragraph 36K(1)(c) if a court finds that the person was not a national or citizen of any country other than Australia at the time the determination was made

 

64.   New subsection 36B(3) makes it clear that the person ceases to be an Australian citizen at the time the determination is made. This subsection replaces existing subsections 33AA(2) and 35(2) which states that citizenship ceases when the person engages in the relevant conduct, or at the time the person commences to serve or fight respectively.

 

65.   New subsection 36B(4) provides that subsection 36B(1) applies to a person who is an Australian citizen, regardless of how they became an Australian citizen (including a person who became an Australian citizen upon birth). This subsection is consistent with existing subsections 33AA(8) and 35(3).

 

66.   The purpose of this amendment is to provide that cessation of citizenship under new subsection 36B(1) applies to all Australian citizens, including those persons who are born in Australia and automatically acquire Australian citizenship. This is the case because all citizens have an obligation of allegiance to Australia irrespective of how they obtained their citizenship. If a person engages in specified terrorism-related conduct that is incompatible with their allegiance to Australia, they can be determined to have repudiated their citizenship irrespective of how they obtained citizenship.

 

67.   New subsection 36B(5) sets out the relevant conduct that a person must engage in for the Minister to consider making a determination under new subsection 36B(1). The conduct set out in new paragraphs 36B(5)(a)-(h) is consistent with the conduct set out in existing subsection 33AA(2) of the Citizenship Act. The conduct set out in new paragraphs 36B(5)(i) and (j) is consistent with the conduct set out in existing subparagraphs 35(1)(b)(i) and (ii). The following conduct is set out:

 

·          engaging in international terrorist activities using explosive or lethal devices;

·          engaging in a terrorist act;

·          providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;

·          directing the activities of a terrorist organisation;

·          recruiting for a terrorist organisation;

·          financing terrorism;

·          financing a terrorist;

·          engaging in foreign incursions and recruitment.

·          fighting for, or being in the service of, a declared terrorist organisation (see section 36C);

·          serving in the armed forces of a country at war with Australia.

 

68.   New paragraphs 36B(5)(a)-(h) set out the conduct that forms the basis of citizenship cessation in existing section 33AA(2). New paragraphs 36B(5)(i) and (j) set out the conduct that forms the basis of citizenship cessation in existing subsection 35(1). Taken together, new subsection 36B(5) consolidates the conduct that forms the basis of citizenship cessation in existing sections 33AA and 35.

 

69.   The conduct set out in new paragraph 36B(5)(j) builds on, adapts and modernises citizenship cessation provisions for those fighting in a war against Australia which have been in place since 1949. These provisions have historically operated by operation of law. However, it is considered appropriate to include them in a Ministerial determination model in order to adapt them to the increasingly complex challenges facing the national security, defence and international relations of Australia and throughout the world.

 

70.   New paragraph 36B(5)(j) does not include the requirement that appears in some Commonwealth offences that there is a Proclamation in relation to the country at war with Australia or a Declaration in relation to the war itself. Accordingly, there is no requirement that there be a Proclamation in relation to a country at war with Australia or a Declaration of war in order for a person to be regarded as serving in the armed forces of a country at war with Australia for the purposes of this provision.

 

71.   Note 1 after new subsection 36B(5) states that a determination made in relation to conduct set out in this subsection can be made in relation to conduct engaged in before the commencement of the subsection. This is set out in item 18 of Schedule 1.

 

72.   Item 18 sets out that a citizenship cessation determination can be applied to conduct set out in paragraphs 36B(5)(a)-(h) that occurred after 29 May 2003. This is the date of commencement of the Criminal Code Amendment (Terrorism) Act 2003. That Act re-enacted the terrorism offences in Part 5.3 of the Criminal Code with the support of State references of power to ensure their operation throughout Australia, without any limitations arising from limits on Commonwealth constitutional powers. This is also consistent with the date from which relevant convictions can form the basis of a citizenship cessation determination under new 36D. While this extends the power of subsection 36B to potentially a greater number of cases of relevant conduct, it only has legal consequences if the Minister decides to make a determination under section 36B after commencement, and the conduct meets the other requirements the Minister is required to consider when making such a determination.

 

73.   The transitional provisions that apply to new section 36B enable the Minister to make future decisions, and therefore attach new consequences, on the basis of conduct that occurred from 29 May 2003.

 

74.   Note 2 after new subsection 36B(1) makes clear that this section does not apply to conduct of Australian law enforcement or intelligence bodies, or to conduct in the course of certain duties to the Commonwealth, as set out in new subsection 36B(8) and existing section 35AB of the Citizenship Act.

 

75.   New subsection 36B(6) provides that the words and expressions used in paragraphs 36B(5)(a) to (h) have the same meanings as in Subdivision A of Division 72, sections 101.1, 101.2, 102.2, 102.4, 103.1 and 103.2 and Division 119 of the Criminal Code, respectively. However (to avoid doubt) this does not include the fault elements that apply under the Criminal Code in relation to those provisions of the Criminal Code. This subsection is consistent with existing subsection 33AA(6).

 

76.   A brief description of the specified offences in the Criminal Code is below:

 

Provision

Offence

Maximum Penalty

101.1   Terrorist acts

(1)       A person commits an offence if the person engages in a terrorist act.

 

(2)       Section 15.4 (extended geographical jurisdiction- category D) applies to an offence against subsection (1).

terrorist act is defined in section 100.1 of the Criminal Code

Imprisonment for life

101.2   Providing or receiving training connected with terrorist acts

(1)       A person commits an offence if:

(a)     the person provides or receives training; and

(b)     the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c)     the person mentioned in paragraph (a) knows of the connection described in paragraph (b).

 

(2)       A person commits an offence if:

(a)     the person provides or receives training; and

(b)     the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and

(c)     the person mentioned in paragraph (a) is reckless as to the existence of the connection described in paragraph (b).

 

(3)      A person commits an offence under this section even if:

(a)     a terrorist act does not occur; or

(b)     the training is not connected with preparation for, the engagement of a person in, or assistance in a specified terrorist act; or

(c)     the training is connected with preparation for, the engagement of a person in, or assistance in more than one terrorist act.

 

(4)      Section 15.4 (extended geographical jurisdiction- category D) applies to an offence against this section…

Imprisonment for 25 years

 

 

 

Imprisonment for 15 years

102.2 Directing the activities of a terrorist organisation

(1) A person commits an offence if:

(a)     the person intentionally directs the activities of an organisation; and

(b)     the organisation is a terrorist organisation; and

(c)     the person knows the organisation is a terrorist organisation.

 

(2) A person commits an offence if:

(a)     the person intentionally directs the activities of an organisation; and

(b)     the organisation is a terrorist organisation; and

(c)     the person is reckless as to whether the organisation is a terrorist organisation.

Up to 25 years imprisonment

102.4 Recruiting for a terrorist organisation

(1) A person commits an offence if:

(a)     the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

(b)     the organisation is a terrorist organisation; and

(c)     the first-mentioned person knows the organisation is a terrorist organisation.

Penalty: Imprisonment for 25 years.

 

(2) A person commits an offence if:

(a)     the person intentionally recruits a person to join, or participate in the activities of, an organisation; and

(b)     the organisation is a terrorist organisation; and

(c)     the first-mentioned person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

Up to 25 years imprisonment

103.1 Financing terrorism

(1) A person commits an offence if:

(a)     the person provides or collects funds; and

(b)     the person is reckless as to whether the funds will be used to facilitate or engage in a terrorist act.

Penalty: Imprisonment for life.

 

Note: Intention is the fault element for the conduct described in

paragraph (1)(a). See subsection 5.6(1).

 

(2) A person commits an offence under subsection (1) even if:

(a)     a terrorist act does not occur; or

(b)     the funds will not be used to facilitate or engage in a specific terrorist act; or

(c)     the funds will be used to facilitate or engage in more than one terrorist act.

Imprisonment for life

103.2 Financing a terrorist

(1) A person commits an offence if:

       (a)     the person intentionally:

(i) makes funds available to another person (whether

directly or indirectly); or

(ii) collects funds for, or on behalf of, another person

(whether directly or indirectly); and

(b)     the first-mentioned person is reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act.

Penalty: Imprisonment for life.

 

(2) A person commits an offence under subsection (1) even if:

(a)     terrorist act does not occur; or

(b)     the funds will not be used to facilitate or engage in a specific terrorist act; or

(c)     the funds will be used to facilitate or engage in more than one terrorist act.

Imprisonment for life

Division 119

Foreign incursions and recruitment

Up to imprisonment for life

77.    Section 100.1 of the Criminal Code defines terrorist act as an action or threat of action where:

·          the action is of a type that:

o    causes serious harm that is physical harm to a person; or

o    causes serious damage to property; or

o    causes a person’s death; or

o    endangers a person’s life, other than the life of the person taking the action; or

o    creates a serious risk to the health and safety of the public or a section of the public; or

o    seriously interferes with, seriously disrupts, or destroys, an electronic system

·          the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

·          the action is done or the threat is made with the intention of:

o    coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign Country; or

o    intimidating the public or a section of the public.

 

78.   The purpose of new subsection 36B(6) is to clarify that, when considering the meanings of the specified terrorist related conduct in new subsection 36B(5), a consideration of the fault element that applies under the Criminal Code is not required. This amendment recognises that new section 36B is not concerned with whether a person has committed a criminal offence, since that is a matter for a court to determine.

79.   New subsection 36B(7) provides that for the purposes of new paragraph 36B(5)(i), and without limitation , a person is not in the service of a declared terrorist organisation to the extent that:

·          the person’s actions are unintentional; or

·          the person is acting under duress or force; or

·          the person is providing neutral and independent humanitarian assistance.

 

80.   The purpose of this provision is to clarify the circumstances in which a person would not be ‘in the service of’ a declared terrorist organisation, including where the person’s conduct takes place unwittingly or against the person’s will. The provision also clarifies that new section 36B would not apply to the type of impartial, independent humanitarian assistance provided by organisations such as International Red Cross and Red Crescent Movement, UNICEF or Médecins Sans Frontières. However, the provision of medical services in a hospital run by a declared terrorist organisation would be conduct in the service of a declared terrorist organisation.

 

81.   New subsection 36B(7) is additional to new subsection 36B(1)(b), which requires that the Minister be satisfied that a person has, through their conduct, repudiated their allegiance to Australia. When taken together the provisions provide ample protections to ensure that person’s citizenship cannot be ceased by Ministerial determination on the basis of conduct that was otherwise inadvertent.

 

82.   New subsection 36B(8) provides that section 36B does not apply to:

 

·          a person in the proper performance of a function of a body, agency or organisation of the Commonwealth, or of a State or Territory, that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud, security intelligence, foreign intelligence or financial intelligence; or

·          a person acting in the course of the person’s duty to the Commonwealth in relation to the defence security or international relations of Australia.

 

83.   New subsection 36B(8) replaces existing section 35AB. The purpose of new subsection 36B(8) is to retain the exemption for law enforcement, intelligence agencies and the Australian Defence Force from the effect new section 36B, as set out in existing section 35AB, which is repealed by this schedule.

 

84.   Law enforcement and intelligence agencies require appropriate legal protections for persons where it is necessary to engage in covert activities and operations or other authorised activities, such as defence operations, that involve otherwise unlawful conduct for the legitimate purpose of carrying out functions in accordance with applicable legislation.

 

85.   New subsection 36B(8) also reflects that certain persons performing duty for the Commonwealth are not employed by agencies with prescribed statutory functions, for example members of the Australian Defence Force, but likewise should not be exposed to the operation of new section 36B where that duty is related to the defence, security or international relations of Australia.

 

86.   New subsections 36B(9) to (12) set out general provisions in relation to the Minister’s powers under the section.

 

87.   New subsection 36B(9) sets out that the Minister must exercise the powers in this section personally. This is consistent with existing subsections 33AA(20) and 35(15). The effect of this provision is that the Minister’s power under new subsection 36B(1) must be exercised by the Minister personally, and may not be exercised by a delegate of the Minister. This is considered appropriate in view of the consequences that flow for the person to whom the determination relates.

 

88.   New subsection 36B(10) provides that existing section 47 (notification of decisions) of the Citizenship Act does not apply to a determination made by the Minister under new section 36B. This subsection provides a signpost to new section 36F, which sets out the notice requirements in relation to a decision made under new section 36B.

 

89.   The purpose of this provision is to make clear notice should be given as soon as practicable, except in cases where notification would prejudice the security, defence or international relations of Australia, or Australian law enforcement operations.

 

90.   New subsection 36B(11) provides that the rules of natural justice do not apply in relation to making a decision or exercising a power under new section 36B.

 

91.   Natural justice has not been removed, it is to be afforded at a later point in time. The purpose behind this is to remove the potential for the Minister’s decision to make a determination to cease a person’s citizenship being frustrated by either the person and/or an affected country. Although natural justice is excluded from the initial determination made by the Minister under new subsection 36B(1), it is relevant to note that an affected person has the right to access judicial review of that decision under section 75(v) of the Constitution or section 39B of the Judiciary Act 1903 . Furthermore, an affected person is able to apply for a revocation of a determination made under new subsection 36B(1) under new section 36H. The Minister must observe the rules of natural justice in relation to that process.

 

92.   New subsection 36B(12) provides that a determination made under new subsection 36B(1) is not a legislative instrument.

93.   This provision is included to assist readers, as the instrument is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 . This provision is merely declaratory of the law, and not an exemption from the Legislation Act 2003.

 

36C  Declared terrorist organisation

94.   New section 36C sets out the definition of a declared terrorist organisation. It replaces existing section 35AA which is repealed by item 8 of this schedule. Existing section 35AA is replicated in new section 36C with consequential amendments.

95.   Existing paragraph 35AA(2)(b) sets out that one of the criterion for declaring that an organisation is a declared terrorist organisation is that the Minister be satisfied that the organisation is opposed to Australia, or Australia’s interests, values, democratic beliefs, rights or liberties, so that if a person were to fight for or be in the service of such an organisation the person would be acting inconsistently with their allegiance to Australia.

96.   New paragraph 36C(2)(b) omits the words ‘acting inconsistently with’ and substitutes ‘repudiating’. This item is consequential to the repeal of existing section 35 and the substitution of new section 36B, specifically new paragraph 36B(1)(b).

36D   Citizenship cessation determination for certain convictions

97.   Existing section 35A provides that the Minister may make a determination to cease a person’s citizenship if, among other considerations, the person has been convicted of a specified offence and sentenced to imprisonment for a period of at least 6 years, or periods of imprisonment that total at least 6 years.

98.   Existing section 35A is repealed at item 8 of this schedule. In line with existing section 35A, new section 36D sets out the circumstances in which the Minister may make a determination to cease a person’s citizenship where they are convicted of a specified terrorism-related offence.

99.   New subsection 36D(1) provides that the Minister may determine in writing that a person ceases to be an Australian citizen if:

 

·          the person has been convicted of an offence, or offences, against one or more of the provisions specified in subsection (5) (36D(1)(a)); and

·          the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 3 years, or to periods of imprisonment that total at least 3 years (36D(1)(b)); and

·          the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia(36D(1)(c)); and

·          the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen (see section 36E) (36D(1)(d)).

100.           New paragraph 36D(1)(b) reduces the period or periods of imprisonment that a person has been sentenced to in order to be subject to citizenship cessation under existing section 35A from 6 years to 3 years.

101.           A sentence of imprisonment for a period of at least 3 years, or periods that total at least 3 years reflects the seriousness of a criminal conviction for one of the terrorism-related offences specified in new subsection 36D(5).

102.           New paragraph 36D(1)(c) is consistent with existing paragraph 35A(1)(d) and requires that in order for the Minister to make a citizenship cessation determination he or she must be satisfied that the person has, by the conduct that led to the relevant conviction, repudiated their allegiance to Australia.

103.           Allegiance is a duty owed by all citizens to their sovereign or state. A citizen's duty of allegiance to Australia is not created by the Citizenship Act, but it is recognised by it. As such, existing section 35A was inserted into the Citizenship Act to recognise that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens who have engaged in certain types of conduct that are incompatible with the shared values of the Australian community may thereby demonstrate that they have severed that bond and repudiated their allegiance to Australia.

 

104.           New section 36D retains that purpose, and new paragraph 36D(1)(c) ensures that a person cannot have their citizenship ceased unless the Minister is satisfied that their conduct repudiated their allegiance to Australia.

 

105.           The effect of new paragraph 36D(1)(c) is to make clear the conduct demonstrates the person has repudiated their allegiance to Australia. This is in line with the purpose clause at new section 36A.

 

106.           New paragraph 36D(1)(d) requires the Minister to consider the public interest prior to making a determination under new subsection 36D(1). This requirement is consistent with existing 35A(1)(e).

 

107.           New paragraph 36D(1)(d) provides a signpost to new section 36E which sets out the public interest criteria to which the Minister must have regard. The matters set out in new section 36E are consistent with the matters set out in existing paragraph 35A(1)(e).

 

108.           The assessment of the public interest, as required by paragraph 36D(1)(d), is by reference to the purpose of the statutory scheme i.e. citizenship cessation for terrorism-related conduct. The application of the public interest test will require a balancing of competing interests and will be a question of fact and degree ( Hogan v Hinch (2011) 243 CLR 506). Public interest consideration in this context may include matters such as public confidence in the safety of the Australian community, actual public safety, the need for deterrence and the impact on the person. 

109.      The Minister is well placed to make an assessment of public interest as an elected member of the Parliament. The Minister represents the Australian community and has a particular insight into Australian community standards and values and if it would be contrary to the public interest for the person to remain an Australian citizen.

110.           The purpose of this amendment is to consolidate the public interest factors the Minister must have regard to in making or revoking a citizenship cessation determination under new sections 36B and 36D, as effected by item 9 of this schedule.

 

111.           A note is inserted after 36D(1)(d) which explains that a person may seek judicial review of a determination made under section 36D, in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903 .

 

112.       The operation of the provisions in the Bill is extraordinary and lends itself to review by the High Court and Federal Court. Section 75 of the Constitution gives the High Court original jurisdiction to hear certain matters. Relevantly, 75(v) of the Constitution provides that the court may hear a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

113.       Section 39B of the Judiciary Act 1903 also gives the Federal Court of Australia original jurisdiction to, amongst other matters, hear matters in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

114.           The note also provides a signpost to new section 36H, which sets out that an affected person may apply to the Minister for revocation of a citizenship cessation determination.

 

115.           New subsection 36D (2) provides that the Minister must not make a determination in relation to a person if the Minister is satisfied that such a determination would result in the person becoming someone who is not a national or citizen of any country.

 

116.           The operation of new section 36D is limited to persons that the Minister is satisfied are nationals or citizens of a country other than Australia. The purpose of this amendment is to ensure that the application of this provision will not result in a person becoming stateless. 

 

117.           The term ‘national or citizen’ is consistent with existing section 35A. It is used because some persons may be legally entitled to ‘nationality’ of a country but not ‘citizenship’.

 

118.           The requirement that the Minister be satisfied that a person would not become a person who is not a national or citizen of any country differs slightly from the formulation in the provision in existing section 35 of the Citizenship Act. Currently, a person’s citizenship can only cease under existing section 35 of the Citizenship Act if, as a matter of fact, they are a national or citizen of another country.

 

119.           In order to facilitate the Minister’s power to make a determination with regard to cessation of citizenship under new section 36D(1), the Minister needs to be satisfied that the person would not become a person who is not a national or citizen of any country. The Minister will be required to turn his or her mind to the issue, using the materials available to him at the time. This adjusts the current threshold in relation to this issue, and adds additional safeguards, namely:

 

·          the Minister must revoke his decision on application by a person, under new subparagraph 36H(a)(i) if he is satisfied that a person is not a national or citizen of any country.

·          The determination will be automatically revoked under new paragraph 36K(1)(c) if a court finds that the person was not a national or citizen of any country at the time the determination was made

 

120.           New subsection 36D(3) makes it clear that the person ceases to be an Australian citizen at the time the determination is made. This subsection is consistent with existing subsection 35A(2).

 

121.           New subsection 36D(4) provides that subsection 36D(1) applies to a person who is an Australian citizen, regardless of how they became an Australian citizen (including a person who became an Australian citizen upon birth). This subsection is consistent with existing subsection 35A(3).

 

122.           The purpose of this amendment is to provide that cessation of citizenship under new subsection 36D(1) applies to all Australian citizens, including those persons who are born in Australia and automatically acquire Australian citizenship. This is the case because all citizens have an obligation of allegiance to Australia irrespective of how they obtained their citizenship. If a person engages in specified terrorism-related conduct that is incompatible with their allegiance to Australia, they can be determined to have repudiated their citizenship irrespective of how they obtained citizenship.

 

123.           New subsection 36D(5) sets out the relevant provisions for the purposes of new paragraph 36D(1)(a). The provisions set out in new paragraphs 36D(5)(a)-(h) are consistent with the provisions set out in existing subsection 35A(1) of the Citizenship Act. The following provisions are set out:

 

·          a provision of Subdivision A of Division 72 of the Criminal Code (explosives and lethal devices);

·          a provision of Subdivision B of Division 80 of the Criminal Code (treason);

·          a provision of Division 82 of the Criminal Code (sabotage), other than section 82.9;

·          a provision of Division 91 of the Criminal Code (espionage);

·          a provision of Division 92 of the Criminal Code (foreign interference);

·          a provision of Part 5.3 of the Criminal Code (terrorism), other than section 102.8 or Division 104 or 105;

·          a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment);

·          section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.

 

124.           The specified offences in new subsection 36D(5) reflect the policy intention that an offence listed for the purpose of cessation under new subsection 36D(1) must be a terrorism-related offence where the maximum penalty is at least 10 years imprisonment. The offences are of a nature that on the face of them a person who undertakes such offences has repudiated their allegiance to Australia.

125.           The specified offences also have limited application with respect to minors. Under the Criminal Code , a child:

·          under 10 years of age is not criminally responsible for an offence; and

·          a child from 10 to 14 years of age can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.

126.           New section 36D does not mirror the requirement in new section 36B that a person be 14 years or older in order to make a determination in relation to citizenship cessation. This acknowledges that, in order for the court to record a conviction for a child, the court will have engaged in consideration of culpability in the finding of guilt. Further, a conviction resulting in a sentence of at least 3 years, or periods totalling 3 years for one of the specified offences would further reflect the seriousness of the culpability.

127.           A brief description of the relevant offence and the maximum penalty is provided below.

Act/Provision

Offence

Maximum Penalty

(imprisonment) [1]

Criminal Code Act 1995

Section 72.3

International terrorist activities using explosive or lethal devices

Life

Criminal Code Act 1995

Section 80.1

Treason

Life

Criminal Code Act 1995

Section 80.1AA

Treason - material assisting enemies

Life

Criminal Code Act 1995

Section 91.1

Espionage

25 years

Criminal Code Act 1995

Section 101.1

Terrorist acts

Life

Criminal Code Act 1995

Section 101.2

Providing or receiving training connected with terrorist acts

15 or 25 years

Criminal Code Act 1995

Section 101.4

Possessing things connected with terrorist acts

10 or 15 years

Criminal Code Act 1995

Section 101.5

Collecting or making documents likely to facilitate terrorist acts

15 years

Criminal Code Act 1995

Section 101.6

Other acts done in preparation for, or planning, terrorist acts

Life



Criminal Code Act 1995

Section 102.2

Directing the activities of a terrorist organisation

10 or 15 years

Criminal Code Act 1995

Section 102.3

Membership of a terrorist organisation

10 years

Criminal Code Act 1995

Section 102.4

Recruiting for a terrorist organisation

15 or 25 years

Criminal Code Act 1995

Section 102.5

Training involving a terrorist organisation

25 years

Criminal Code Act 1995

Section 102.6

Getting funds to, from or for a terrorist organisation

15 or 25 years

Criminal Code Act 1995

Section 102.7

Providing support to a terrorist organisation

15 or 25 years

Criminal Code Act 1995

Section 103.1

Financing terrorism

Life

Criminal Code Act 1995

Section 103.2

Financing a terrorist

Life

Criminal Code Act 1995

Section 119.1

Incursions into foreign countries with intention to engage in hostile activities

Life

Criminal Code Act 1995

Section 119.2

Entering or remaining in a declared area overseas where terrorist organisations are engage in hostile activities

10 years

Criminal Code Act 1995

Section 119.4

Preparations for incursions into foreign countries for purposes of engaging in hostile activities

Life

Criminal Code Act 1995

Section 119.5

Allowing use of buildings, vessels and aircraft to commit foreign incursions offences

Life

Criminal Code Act 1995

Section 119.6

Recruiting persons to join organisations engaged in hostile activities against foreign governments

25 years

Criminal Code Act 1995

Section 119.7

Recruiting persons to serve in or with an armed force in a foreign country

10 years

Crimes Act 1914

Section 24AA

Treachery by overthrow of the Constitution or Government, levying war or assisting in levying war, or instigating an armed invasion

Life

Crimes Act 1914

Section 24AB

Sabotage by destroying, damaging or impairing Australian Defence Force equipment

15 years

Crimes (Foreign Incursions and Recruitment) Act 1978

Section 6

Incursions into foreign States with intention of engaging in hostile activities

20 years

Crimes (Foreign Incursions and Recruitment) Act 1978

Section 7

Preparations for incursions into foreign States for purpose of engaging in hostile activities

10 years

 

128.           The purpose of new section 36D is to deal with the threat caused by those who have acted in a manner contrary to their allegiance to Australia by removing them from formal membership of the Australian community. Cessation of citizenship is a very serious outcome of very serious conduct that demonstrates a person has repudiated their allegiance to Australia (refer to paragraph 36D(1)(c)). Removing a person’s formal membership of the Australian community is appropriate to reduce the possibility of a person engaging in acts or further acts that harm Australians or Australian interests.

129.           A note after new paragraph 36D(5)(h) explains that a determination may be made in relation to a conviction for an offence specified in new subsection 36D(5) that occurred before the subsection commenced. This is set out in item 19 of this schedule.

130.           Item 19 provides that a determination may be made in respect of a conviction for an offence specified in subsection 36D(5) from 29 May 2003. This is the date of commencement of the Criminal Code Amendment (Terrorism) Act 2003. That Act re-enacted the terrorism offences in Part 5.3 of the Criminal Code with the support of State references of power to ensure their operation throughout Australia, without any limitations arising from limits on Commonwealth constitutional powers.

131.           Under the current provisions, convictions from 12 December 2015 are subject to a threshold of a period of at least 6 years imprisonment, and convictions for the ten years prior, from 12 December 2005, are subject to a threshold of at least 10 years imprisonment.

132.           While this extends the power of new section 36D to a greater number of convictions, the conviction for a specified offence is simply the starting point for the Minister to make a citizenship cessation determination, that being a determination that can be made only after having regard to a number of factors. This is appropriate when considering a determination of this gravity.

133.           The transitional provisions that apply to new section 36D enable the Minister to make future decisions, and therefore attach new consequences, on the basis of certain convictions from 29 May 2003.

 

134.           New section 36D(6) is consistent with existing section 35A(4), and provides that for the purposes of new paragraph 36D(1)(b):

  • the reference to being sentenced to a period of imprisonment does not include a suspended sentence; and
  • if a single sentence of imprisonment is imposed in respect of both an offence against a provision mentioned in paragraph 36D(1)(a) and in respect of one or more other offences, then:
    • if it is clear that only a particular part of the total period of imprisonment relates to the offence against the provision mentioned in paragraph 36D(1)(a)—the person is taken to have been sentenced to imprisonment in respect of that offence for that part of the total period of imprisonment; and
    • if subparagraph (i) does not apply—the person is taken to have been sentenced to imprisonment in respect of the offence against the provision mentioned in paragraph 36D(1)(a) for the whole of the total period of imprisonment.

 

135.           The purpose of new subsection 36D(4) is to clarify that where a person is convicted of a terrorist-related offence for the purpose of subsection 36D(1) and has been sentenced to a period of imprisonment of at least 3 years, that the sentence does not include a suspended sentence.

 

136.           The provision also clarifies that where the person receives a single sentence of imprisonment of at least 3 years for a number of offences, and it is clear that only a particular part of the total period of imprisonment relates to the terrorist-related offence captured by new subsection 36D(5), then section 36D does not apply, and the person does not cease to be an Australian citizen. However, if is not clear that only a particular part of the total period of imprisonment relates to the terrorist-related offence, then the person is taken to have been sentenced to imprisonment in respect of the terrorist-related offence for the whole of the total period of imprisonment.

 

137.           For example, a person may be convicted of providing support to a terrorist organisation pursuant to section 102.7 of the Criminal Code (which is specified in new subsection 36D(5), as well as threatening a Commonwealth official (which is not an offence specified in new subsection 36D(5)). The person receives a total sentence of imprisonment of 8 years for both offences. That is, it is unclear if only a particular part of that sentence relates to providing support to a terrorist organisation. It follows that new section 36D would apply to the person, as the person has received a total sentence of imprisonment of 8 years imposed in respect of an offence specified in new subsection 36D(5).

 

138.           However, if the person were to receive separate sentences for each offence, for example a sentence of imprisonment of 2 years for providing support to a terrorist organisation, and a 7 year sentence of imprisonment for threatening a Commonwealth official, new section 36D(5) would not apply. This is because the person received a separate sentence of 2 years for providing support to a terrorist organisation and the offence of threatening a Commonwealth official is not specified in new subsection 36D(5).

 

139.           New subsections 36D(7) - (10) set out general provisions relating to the Minister’s powers.

 

140.           New subsection 36D(7) sets out that the Minister must exercise the powers in this section personally. This is consistent with existing subsection 35A(10). The effect of this provision is that the Minister’s power under new subsection 36D(1) must be exercised by the Minister personally, and may not be exercised by a delegate of the Minister. This is considered appropriate in view of the consequences that flow for the person to whom the determination relates.

 

141.           New subsection 36D(8) provides that existing section 47 (notification of decisions) of the Citizenship Act does not apply to a determination made by the Minister under section 36D. This is consistent with existing subsection 35A(12). This subsection provides a signpost to new section 36F, which sets out the notice requirements in relation to a decision made under section 36D.

 

142.           The purpose of this provision is to make clear notice should be given as soon as possible, except in cases where notification could prejudice the security, defence or international relations of Australia, or Australian law enforcement.

 

143.           New subsection 36D(9) provides that the rules of natural justice do not apply in relation to making a decision or exercising a power under new section 36D. 

 

144.           Natural justice has not been removed, it is to be afforded at a later point in time. The purpose behind this is to remove the potential for the Minister’s decision to make a determination to cease a person’s citizenship being frustrated by either the person and/or an affected country.

 

145.           Although natural justice is excluded from the initial determination made by the Minister under new subsection 36D(1), it is relevant to note that an affected person has the right to access judicial review under section 75(v) of the Constitution or section 39B of the Judiciary Act 1903. Furthermore, an affected person is able to apply for a revocation of a determination made under new subsection 36D(1) under new section 36H of this Act. The Minister must observe the rules of natural justice in relation to that process.

 

146.           New subsection 36D(10) provides that a determination made under new subsection 36D(1) is not a legislative instrument.

 

147.           This provision is included to assist readers, as the instrument is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 . This provision is merely declaratory of the law, and not an exemption from the Legislation Act 2003.

 

36E      Public interest in making or revoking citizenship cessation determinations

148.           New section 36E sets out the matters that the Minister must have regard to when considering making a determination to cease a person’s citizenship under new sections 36B and 36D, or revoking such a determination under new sections 36H and 36J.

 

149.           New subsection 36E(1) provides that new section 35B applies when the Minister is considering the public interest for the purposes of deciding whether to make a determination under subsection 36B(1) or 36D(1), or whether to revoke such a determination.

 

150.           The note under new subsection 36E(1) acts as a signpost to direct readers to the paragraphs that require the Minister to consider the public interest when making a determination, or revoking such a determination.

 

151.           New subsection 36E(2) provides that, if the Minister does consider whether to exercise the power conferred by subsection 36B(1)or 36D(1), or whether to revoke such a determination, the Minister must have regard to the following matters:

 

·          the severity of the conduct that was the basis for a determination made under subsection  36B (1), or decision to revoke such a determination;

·          the severity of the conduct that was the basis of the conviction or convictions, and the sentence or sentences, to which the determination made under subsection 36D (1), or decision to revoke such a determination, relates;

·          the degree of threat posed by the person to the Australian community;

·          the age of the person;

·          if the person is aged under 18—the best interests of the child as a primary consideration;

·          whether the person is being or is likely to be prosecuted in relation to the matters that were the basis for the determination made under subsection 36B (1) or 36D(1), or a decision to revoke such a determination;

·          the person’s connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;

·          Australia’s international relations;

·          any other matters of public interest.

 

152.           New section 36E will operate to require the Minister to have regard to the severity of the person's conduct and the other matters specified in subsection 36E (2), in considering whether to make a determination to cease a person’s citizenship (under new subsections 36B (1) or 36D (1), or revoke such a determination. This may include, for example, under any other matters of public interest, whether the person will be subject to the death penalty in the affected country.

 

153.           The matters set out in new subsection 36E (2) are consistent with the public interest considerations set out in existing subsections 33AA(17) and paragraph 35A(1)(e).

 

154.           The assessment of the public interest is by reference to the purpose of the statutory scheme. The application of the public interest test will require a balancing of competing interests and will be a question of fact and degree ( Hogan v Hinch (2011) 243 CLR 506).  Public interest consideration in this context may include matters such as public confidence in the safety of the Australian community, actual public safety, the need for deterrence and the impact on the person. 

 

155.           The Minister is well placed to make an assessment of public interest as an elected member of the Parliament.  The Minister represents the Australian community and has a particular insight into Australian community standards and values and if it would be contrary to the public interest for the person to remain an Australian citizen.

 

35F      Notice of citizenship cessation

156.           New section 36F sets out the notice requirements applicable to a determination made under new subsections 36B(1) or 36D(1).

157.           New subsection 36F(1) provides that if the Minister makes a determination under subsection 36B(1) or 36D (1) to cease a person’s citizenship, the Minister:

·          must give written notice of the determination to the person:

o    as soon as practicable after the determination is made; or

o    if the Minister makes a determination under subsection 36G(1)(that notice should not be given to the person) - as soon as practicable after the determination under that subsection is revoked; and

·          may give notice to that effect to such other persons and at such time as the Minister considers appropriate.

158.       These provisions confer an obligation on the Minister, if he or she makes a determination under subsection 36B (1) or 36D (1) because of which the person has ceased to be an Australian citizen, to give written notice to that effect to the person concerned. The Minister also has a discretion to give that written notice of the determination to such other persons and at such a time as the Minister considers appropriate. 

159.       New subsection 36F (2) provides that a notice under new paragraph 36F(1)(a) must be given to the person by sending it by pre-paid post to the address of the place of residence of the person last known to the Department.

160.           New subsection 36F(3) outlines that, after giving the notice in accordance with new subsection 36F(2), the Minister may send it again by electronic communication if:

·          the Minister has become aware of the electronic address for the person; and

·          the Minister is satisfied the person did not receive the notice given in accordance with subsection 36F(2)

 

161.           New subsection 36F(4) sets out that the Minister may give notice by sending it to an electronic address for the person without sending it in accordance with subsection 36F(2) if:

 

·          the Minister becomes aware of the electronic address for the person while a determination is in force under subsection 36G(1) (that notice should not be given to the person); and

·          the determination is revoked.

 

162.           New subsections 36F(3) and (4) allow the Minister to send notice to an affected person by electronic communication where the Minister becomes aware of an electronic address that the Minister may not have had access to at the time of making the notice.

 

163.           This recognises the reality that the most effective way to contact a person that is affected by a determination under subsections 36B(1) and 36D(1) may be, where known, via electronic communication, due to a person’s location overseas being unknown.

 

164.           However, the Department may not have the person’s electronic address available at the time the Minister is required to give notice under subsection 36F(1)(a). Subsection (4) recognises that the Minister may become aware of the person’s electronic address during a period in which the Minister has determined not to give notice to the person under new subsection 36G(1). In that case, the Minister may give notice to the person using an electronic address in the first instance, without sending it using the method described in new subsection 35F(2), by pre-paid post to the place of residence of the person last known to the Department.  

 

165.           The purpose of subsections 36F(3) and (4) is to ensure that the Minister is empowered to use the most appropriate method at his or her disposal in order to notify someone of a determination of citizenship cessation made under subsection 36B(1) or 36D(1).

 

166.           New subsection 36F(5) provides what a notice under new paragraph 35C(1)(a) must set out:

 

·          that the Minister has determined under subsection 36B(1) or 36D(1) (as applicable) that the person has ceased to be an Australian citizen; and

·          for a determination under subsection 36B(1) or 36D(1) - contain a basic description of the conduct to which the determination relates; and

·          for a determination under subsection 36D(1) - specify the conviction or convictions, and sentence or sentences, to which the determination relates;

·          specify the date of the notice; and

·          set out the person’s rights of review.

167.           This provision operates to ensure that the notice outlines under what subsection the relevant determination was made, provides a basic description of the relevant conduct, conviction or convictions, and sentence or sentences to which that determination relates. Finally, the notice will set out the person’s rights of review.

 

168.       A person will have the right to seek judicial review of the Minister’s determination. The operation of the new provisions in the amended Bill is extraordinary and lends itself to review by the High Court and Federal Court. Section 75 of the Constitution gives the High Court original jurisdiction to hear certain matters. Relevantly, 75(v) of the Constitution provides that the court may hear a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

169.       Section 39B of the Judiciary Act 1903 also gives the Federal Court of Australia original jurisdiction to, amongst other matters, hear matters in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

170.       A notice provided under new section 36F alerts the person to the formation of official opinion as a means of ensuring that the person may bring the substantive issue before a court for determination. Furthermore, the notice can assist the person in applying to the Minister for revocation of the decision under new section 36H.

171.       The notice also may alert other administrators to take the existence of the notice into account for other decision making purposes. For example, the Minister may notify the Department of Foreign Affairs and Trade of the person’s cessation of Australian citizenship so that the person’s Australian passport is cancelled or an Electoral Commissioner so the person is removed from the electoral roll.

172.       Any consequential action taken by Government agencies will only take place after the Minister issues the notice.

173.       New subsection 36F(6) provides that the notice under new paragraph 36F(1)(a) must not contain information, or content of a document, if:

·          the information or content includes any operationally sensitive information (within the meaning of the Independent National Security Legislation Monitor Act 2010 ); or

·          the disclosure of information or content could prejudice:

o    The security, defence or international relations of Australia; or

o    The performance by a law enforcement or security agency (within the meaning of the Independent National Security Legislation Monitor Act 2010 ) of its functions; or

·          the disclosure of information or content could endanger a person’s safety; or

·          the disclosure of the information or content would be likely to be contrary to the public interest for any other reason.

174.           ‘Operationally sensitive information’ is defined in the Independent National Security Legislation Monitor Act 2010 to mean:

·          information about information sources or operational activities or methods available to a law enforcement or security agency; or

·          information about particular operations that have been, are being or are proposed to be undertaken by a law enforcement or security agency, or about proceedings relating to those operations; or

·          information provided by a foreign government, or by an agency of a foreign government, where that government does not consent to the public disclosure of the information.

175.       ‘Law enforcement or security agency’ is defined in the Independent National Security Legislation Monitor Act 2010 to mean any of the following agencies:

·          the Australian Federal Police;

·          the Australian Crime Commission;

·          the Immigration and Border Protection Department;

·          the Australian Security Intelligence Organisation;

·          the Australian Secret Intelligence Service;

·          the Australian Signals Directorate;

·          the Australian Defence Force;

·          the part of the Department of Defence known as the Australian-Geospatial Intelligence Organisation;

·          the part of the Department of Defence known as the Defence Intelligence Organisation;

·          the Office of National Intelligence;

·          the police force of a State or Territory;

·          any other agency prescribed by the regulations for the purposes of this definition.

176.       New subsection 36F(6) makes clear that a notice must not contain information, or content of a document if the disclosure of the information or content could prejudice the security, defence or international relations of Australia or the performance by a law enforcement or security agency or endangers the person’s safety or likely to be contrary to the public interest for any other reason.

177.           The assessment of the public interest, as required by paragraph 36F(6)(d), is by reference to the purpose of the statutory scheme i.e. citizenship cessation for terrorism-related conduct. The application of the public interest test will require a balancing of competing interests and will be a question of fact and degree ( Hogan v Hinch (2011) 243 CLR 506). Public interest consideration in this context may include matters such as public confidence in the safety of the Australian community, actual public safety, the need for deterrence and the impact on the person. 

178.      The Minister is well placed to make an assessment of public interest as an elected member of the Parliament. The Minister represents the Australian community and has a particular insight into Australian community standards and values and if it would be contrary to the public interest for the person to remain an Australian citizen.

179.           New subsection 36F(7) provides that the rules of natural justice do not apply in relation to making a decision or exercising a power under this section.

 

180.           It is appropriate that natural justice is excluded from this Section, as it relates only to the administrative decision to provide notice. Where notice is given to a person, they will be provided with 90 days from the date of the notice to apply to the Minister for a revocation of the decision under new section 36H.

181.           For clarity, the Minister is not required to exercise the powers in this section personally, that is, the administrative function of making and posting the notice can be undertaken by the Department.

36G     Determination that notice of citizenship cessation should not be given

182.       New section 36G sets out that the Minister may determine in writing that a notice should not be provided to a person under new paragraph 36F(1)(a).

183.       New subsection 36G(1) provides that the Minister may determine in writing that a notice under new paragraph 36F(1)(a) should not be given to a person if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia or Australian law enforcement operations.

184.       The purpose of this provision is to recognise that there may be instances where providing immediate notice to a person regarding the cessation of their Australian citizenship may compromise ongoing operations of national security and prejudice the security, defence or international relations of Australia. For example, intelligence operations or law enforcement operations may be put at risk if a person were to be notified of the cessation of their Australian citizenship.

185.       New subsection 36G(2) provides that the Minister must consider whether to revoke the determination at least every 90 days after making it.

186.       The Minister must review this decision at least every 90 days until 5 years has passed. This recognises the reasonable expectation that the person is to be notified as soon as practicable and tries to strike a genuine attempt to balance competing public interests. Existing subsections 33AA(12), 35(7) and 35A(7) currently provide that the Minister must review the decision not to provide notice at least every 6 months until five years have passed.

187.       The purpose of this amendment is to reinforce that notice should be given as soon as it is practicable to do so.

188.       New subsection 36G(3) provides that if the Minister does not revoke the determination within 5 years of making it, the determination is taken to be revoked at the end of 5 years unless the Minister extends the determination. It is expected that any ongoing operation of national security would be resolved within 5 years, or alternatively that the person may make themselves known to the Minister during this period (for example, by attempting to return to Australia) .

189.       The Minister can extend the determination, under subsection 36G(4) if, before the determination is revoked, the Minister remains satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations. If the Minister is satisfied as such, he or she may extend the determination for 1 year by making a determination in writing to that effect.

190.       New subsection 36G(5) provides that if the Minister extends the determination under subsection 36G(4):

·          the Minister must consider whether to revoke the determination at least every 90 days after extending it; and

·          the determination is taken to be revoked at the end of that year.

191.       New subsection 36G(6) provides that the powers of the Minister under this section may only be exercised by the Minister personally. The effect of this provision is that the powers under section 36G, including the power to determine that notice of citizenship cessation not be given to a person, must be exercised by the Minister personally, and may not be exercised by a delegate of the Minister.

192.       New subsection 36G(7) provides that section 47 of the Citizenship Act, which sets out the general notice requirements, does not apply to a decision made by the Minister under new section 36G. The purpose of this provision is to make clear notice should be given as soon as practicable, except in cases where notification could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations.

193.       New subsection 36G(8) provides that the rules of natural justice do not apply in relation to making a decision or exercising a power under this section, including a decision whether to consider exercising the power to make a determination under subsection (1) or (4).

194.           It is appropriate to exclude natural justice from the exercise of this decision, as providing natural justice would frustrate the purpose of the provision. When the person is notified at a later point in time they will have 90 days to apply to the Minister under new section 35E for revocation of the decision. 

 

195.       New subsection 36G(9) outlines that a determination made under subsection (1) or (4) is not a legislative instrument. The reason that a decision under this section is not a legislative instrument is that it is administrative in character. New subsection 36G(9) is declaratory of the law and is not intended as an exemption to the Legislative Instruments Act 2003 , but is included to assist readers in the interpretation of the legislation.

36H     Revocation of citizenship cessation determination on application to Minister

 

196.       New section 36H outlines that a person, who has lost their citizenship because of a determination made under new subsection 36B(1) or 36D(1), may apply to the Minister to have that determination revoked. It also outlines the obligations of the Minister to consider such an application or give written notice of a decision, and the general rules associated with the Ministers power under this section.

197.       New subsection 36H(1) provides that a person who has ceased to be an Australian citizen because of a determination made under subsection 36B(1) or 36D(1) may apply in writing to the Minister to have the determination revoked. It also provides that section 46 of the Act, which deals with application requirements, does not apply to the application.

198.       The purpose of excluding the general application requirements in the Citizenship Act is to ensure there is flexibility for an affected person to apply for revocation of a relevant determination, recognising that such a person may not be in a position to access, fill in, and post a standard application form. The application process and the contents of the application is left open deliberately, to allow for applications to be made in writing in any manner or form that is available and appropriate to the affected person.

199.       New subsection 36H(2) provides that the application must be made no later than the later of: 

·          90 days after the date of the notice under paragraph 36F(1)(a) in relation to the determination.

·          if the notice was given to the person again by sending it to an electronic address in accordance with subsection 36F(3)—30 days after the day the notice was sent to the electronic address.

200.       The effect of new subsection 36H(2) is that if a person is provided notice (sent to the person’s last known place of residence held by the Department), and it becomes clear at a later time and after the 90 day period has expired that this notice was not received, then the person has 30 days to apply for a revocation. In practical terms, this may apply months or even years later. This is intended to account for situations where the person’s whereabouts may not be known and there is no electronic address at the time the person is given notice but where such information subsequently becomes available.

201.           A 90 day time period is considered a long enough period to recognise the gravity of the determination and give affected person time to consider making and preparing an application for revocation of the determination, particularly in light of the flexible arrangements for making an application.

 

202.           However, there also needs to be administrative certainty for the Government to take action following cessation of a person’s citizenship that should not be frustrated on the basis that the person may not have received notice, despite reasonable attempts having been made to so do. For that reason, a further 30 day period if the Minister is satisfied the person did not receive notice is considered fair for a person who did not receive the original notice sent under section 36F(2).

 

203.           New subsection 36H(3) provides that the Minister must consider the application and either revoke the determination or refuse the application. The Minister:

·          must revoke the determination if (36H(3)(a)):

o    the Minister is satisfied that, at the time determination was made, the person was not a national or citizen of any other country (36H(3)(a)(i)); or

o    for a determination made under new subsection 36B(1) - the Minister is satisfied that the person did not engage in the conduct to which the determination related (36H(3)(a)(ii)); and

·          may revoke the determination if paragraph (a) of this subsection does not apply, but only if satisfied that revoking the determination would be in the public interest, as outlined in new section 36E (36H(3)(b)).

 

204.           New subparagraph 36H(3)(a)(i) is enacted to ensure that there are appropriate safeguards against a person becoming stateless as a result of these provisions.

205.           A note after new subsection 36H(3) outlines that the Minister must observe the rules of natural justice in making the decision.

 

206.           New subsection 35E(4) provides that the Minister must give the person written notice of the Minister’s decision under subsection (3). The notice must:

·          set out the decision; and

·          if the Minister refused the application:

o    include reasons for the decision; and

o    set out the person’s rights for review.

207.           Section 47 of the Citizenship Act, which deals with notification requirements for decisions, does not apply in relation to a decision under section 36H. This is appropriate because notice requirements relating to a decision made under new section 36H are set out within the section, and information may be subject to national security or similar considerations, as contemplated in new subsection 36H(5).

208.           A note after subsection 36H(4) explains that person has review rights in relation to a determination made under new subsection 36H(3). Such a determination is subject to judicial review in the High Court of Australia under section 75(v) of the Constitution or in the Federal Court of Australia under section 39B of the Judiciary Act 1903 .

 

209.       The operation of the provisions in the Bill is extraordinary and lends itself to review by the High Court and Federal Court. Section 75 of the Constitution gives the High Court original jurisdiction to hear certain matters. Relevantly, 75(v) of the Constitution provides that the court may hear a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

210.       Section 39B of the Judiciary Act 1903 also gives the Federal Court of Australia original jurisdiction to, amongst other matters, hear matters in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

211.       New subsection 36H(5) provides that the notice under new subsection 36H(4) must not contain information, or content of a document, if:

·          the information or content includes any operationally sensitive information (within the meaning of the Independent National Security Legislation Monitor Act 2010 ); or

·          the disclosure of information or content could prejudice:

o    The security, defence or international relations of Australia; or

o    The performance by a law enforcement or security agency (within the meaning of the Independent National Security Legislation Monitor Act 2010) of its functions; or

·          the disclosure of information or content could endanger a person’s safety; or

·          the disclosure of the information or content would be likely to be contrary to the public interest for any other reason.

212.           ‘Operationally sensitive information’ is defined in the Independent National Security Legislation Monitor Act 2010 to mean:

·          information about information sources or operational activities or methods available to a law enforcement or security agency; or

·          information about particular operations that have been, are being or are proposed to be undertaken by a law enforcement or security agency, or about proceedings relating to those operations; or

·          information provided by a foreign government, or by an agency of a foreign government, where that government does not consent to the public disclosure of the information.

213.       ‘Law enforcement or security agency’ is defined in the Independent National Security Legislation Monitor Act 2010 to mean any of the following agencies:

·          the Australian Federal Police;

·          the Australian Crime Commission;

·          the Immigration and Border Protection Department;

·          the Australian Security Intelligence Organisation;

·          the Australian Secret Intelligence Service;

·          the Australian Signals Directorate;

·          the Australian Defence Force;

·          the part of the Department of Defence known as the Australian-Geospatial Intelligence Organisation;

·          the part of the Department of Defence known as the Defence Intelligence Organisation;

·          the Office of National Intelligence;

·          the police force of a State or Territory;

·          any other agency prescribed by the regulations for the purposes of this definition.

214.           New subsection 36H(5) makes clear that the Minister is not required to disclose any information, or content of a document if the disclosure of the information or content could prejudice the security, defence or international relations of Australia or the performance by a law enforcement or security agency or endangers the person’s safety or likely to be contrary to the public interest for any other reason.

215.           The assessment of the public interest, as required by paragraph 36H(5)(d), is by reference to the purpose of the statutory scheme i.e. citizenship cessation for terrorism-related conduct. The application of the public interest test will require a balancing of competing interests and will be a question of fact and degree ( Hogan v Hinch (2011) 243 CLR 506). Public interest consideration in this context may include matters such as public confidence in the safety of the Australian community, actual public safety, the need for deterrence and the impact on the person. 

216.      The Minister is well placed to make an assessment of public interest as an elected member of the Parliament. The Minister represents the Australian community and has a particular insight into Australian community standards and values and if it would be contrary to the public interest for the person to remain an Australian citizen.

217.           New subsection 36H(6) provides that if the Minister revokes the determination under new subsection 36H(3), the person’s citizenship is taken never to have ceased under section 36B or 36D, because of the determination. However, the validity of anything done in reliance on the determination before the revocation is not affected.

 

218.           For example, this would mean a person’s cessation would preclude them from voting in a state or federal election. If the citizenship cessation were later taken to never have ceased, their voting rights would be reinstated and they would be able to vote at the next state or federal election. The decision taken that they could not vote in past elections would still be valid. There are a range of circumstances that may result in citizenship being taken to never have ceased. However, there also needs to be administrative certainty for the Government to take action following cessation of a person’s citizenship that should not be frustrated on the basis that the cessation determination may later be overturned or revoked.

 

219.           New subsection 36H(7) provides that a person may only apply once to the Minister under subsection 36H(1) in relation to the determination.

 

220.           If a person applied more than once, after the Minister has refused to exercise their discretion under subsection 36H(3) to revoke the determination, the Minister will have no obligation to consider the application again under subsection 36H(3).

 

221.           New subsection 36H(8) provides that the powers of the Minister under this section may only be exercised by the Minister personally, and cannot be delegated. This is consistent with the power of the Minister to exempt a person from citizenship cessation under existing subsections 33AA, and 35, and to revoke a determination under existing section 35A. The effect of this provision is that the Minister’s power under new subsection 36H(3) must be exercised by the Minister personally, and may not be exercised by a delegate of the Minister.  This is considered appropriate in view of the consequences that flow for the person to whom the determination relates.

 

36J      Revocation of citizenship cessation determination on Minister’s initiative

 

222.           New subsection 36J(1) gives the Minister the discretion to revoke a determination made under subsection 36B(1) or 36D(1) if the Minister is satisfied that revoking the determination would be in the public interest. The provision provides a signpost to new section 36E which sets out the matters which must be considered when assessing the public interest in relation to a determination under these provisions.

 

223.           New subsection 36J(2) provides that if the Minister revokes the determination under subsection 36J(1), the person’s citizenship is taken never to have ceased under section 36B or 36D, because of the determination. However, the validity of anything done in reliance on the determination before the revocation is not affected.

 

224.           For example, this would mean a person’s cessation would preclude them from voting in a state or federal election. If the citizenship cessation were later taken to never have ceased, their voting rights would be reinstated and they would be able to vote at the next state or federal election. The decision taken that they could not vote in past elections would still be valid. There are a range of circumstances that may result in citizenship being taken to never have ceased. However, there also needs to be administrative certainty for the Government to take action following cessation of a person’s citizenship that should not be frustrated on the basis that the cessation determination may later be overturned or revoked.

 

225.           New subsection 36J(3) provides that if the Minister has given the person notice of the determination under paragraph 36F(1)(a), the Minister must also give the person written notice of the Minister’s decision under new subsection 36J(1). If the Minister has not given notice under paragraph 36F(1)(a) of the determination, new paragraph 36J(3)(b) provides he or she must not give the person written notice of the decision to revoke. This is because the same security, defence, international relations, and law enforcement considerations still apply and providing notice of the citizenship reinstatement could be equally prejudicial.

 

226.           The purpose of this amendment is to enforce the reasonable expectation that a person should be provided notice of the Minister’s decision to revoke his or her determination that their citizenship is ceased. However, new paragraph 36J(3)(b) reflects that where the Minister has made a determination not to provide notice because doing so may prejudice the security, defence or international relations of Australia, the Minister should not provide notice where he or she determines such a notice should be revoked under new subsection 36J(1).

227.           Section 47 of the Citizenship Act, which deals with notification requirements for decisions, does not apply in relation to a decision under subsection 36J(1). The purpose of this provision is to make clear notice should be given as soon as possible, except in cases where notification would compromise ongoing operations or otherwise compromise national security.

228.       New subsection 36J(4) provides that the notice under new subsection 36J(3) must not contain information, or content of a document, if:

·          the information or content includes any operationally sensitive information (within the meaning of the Independent National Security Legislation Monitor Act 2010); or

·          the disclosure of information or content could prejudice:

o    the security, defence or international relations of Australia; or

o    the performance by a law enforcement or security agency (within the meaning of the Independent National Security Legislation Monitor Act 2010) of its functions; or

·          the disclosure of information or content could endanger a person’s safety; or

·          the disclosure of the information or content would be likely to be contrary to the public interest for any other reason.

 

229.           ‘Operationally sensitive information’ is defined in the Independent National Security Legislation Monitor Act 2010 to mean:

 

·          information about information sources or operational activities or methods available to a law enforcement or security agency; or

·          information about particular operations that have been, are being or are proposed to be undertaken by a law enforcement or security agency, or about proceedings relating to those operations; or

·          information provided by a foreign government, or by an agency of a foreign government, where that government does not consent to the public disclosure of the information.

230.       ‘Law enforcement or security agency’ is defined in the Independent National Security Legislation Monitor Act 2010 to mean any of the following agencies:

·          the Australian Federal Police;

·          the Australian Crime Commission;

·          the Immigration and Border Protection Department;

·          the Australian Security Intelligence Organisation;

·          the Australian Secret Intelligence Service;

·          the Australian Signals Directorate;

·          the Australian Defence Force;

·          the part of the Defence Department known as the Australian Geospatial-Intelligence Organisation;

·          the part of the Defence Department known as the Defence Intelligence Organisation;

·          the Office of National Intelligence;

·          the police force of a State or Territory;

·          any other agency prescribed by the regulations for the purposes of this definition.

 

231.           New subsection 36J(4) makes clear that the Minister is not required to disclose any information, or content of a document if the disclosure of the information or content could prejudice the security, defence or international relations of Australia or the performance by a law enforcement or security agency or endangers the person’s safety or likely to be contrary to the public interest for any other reason.  The assessment of the public interest is by reference to the purpose of the statutory scheme.  The application of the public interest test will require a balancing of competing interests and will be a question of fact and degree ( Hogan v Hinch (2011) 243 CLR 506).  Public interest consideration in this statutory scheme may include matters such as public confidence in the safety of the Australian community, actual public safety, the need for deterrence and the impact on the person. 

232.      The Minister is well placed to make an assessment of public interest as an elected member of the Parliament. The Minister represents the Australian community and has a particular insight into Australian community standards and values and if it would be contrary to the public interest for the person to remain an Australian citizen.

233.           New subsection 36J(5) provides that the Minister does not have a duty to consider whether to exercise the power under subsection 36J(1) in respect of any person, whether the Minister is requested to do so by the person whose citizenship ceased because of the determination, or by another person, or in any other circumstances. This provision puts beyond doubt that in no circumstance does the Minister have a duty to consider to exercise the power under subsection 36J(1).

 

234.           New subsection 36J(6) outlines that in deciding whether to consider exercising the power under new subsection 36J(1), the Minister is not required to have regard to any of the matters referred to in new section 36E. The power in subsection 36J(1) is a completely discretionary power, and in exercising that power, the Minister does not have a duty to consider any matters outlined in this Act or elsewhere.

 

235.           New subsection 36J(7) outlines that the rules of natural justice do not apply in relation to making a decision or exercising a power under this section. Excluding natural justice from the exercise of the power in new subsection 36J(1) is appropriate, given that the power is completely discretionary. 

 

236.           New subsection 36J(8) provides that the powers of the Minister under this section may only be exercised by the Minister personally, and cannot be delegated. This is consistent with the power of the Minister to exempt a person from citizenship cessation under existing subsections 33AA, and 35, and to revoke a determination under existing section 35A. The effect of this provision is that the Minister power under new subsection 36B(1) must be exercised by the Minister personally, and may not be exercised by a delegate of the Minister. This is considered appropriate in view of the consequences that flow for the person to whom the determination relates.

 

36K     Automatic revocation of citizenship cessation determination

237.           New section 36K outlines events which result in automatic revocation of a citizenship cessation determination made under subsection 36B(1) or 36D(1).

 

238.           New subsection 36K(1) provides that a determination made under subsection 36B(1) or 36D(1) is revoked, without the need for any decision or exercise of power by the Minister, if any of the following events occur:

·          for a determination under subsection 36B(1) -if a court finds, under section 75 of the Constitution, or under this Act or another Commonwealth Act, that the person did not engage in the conduct to which the determination relates;

·          for a determination under subsection 36D(1)-both:

o    a decision of a court has overturned or quashed the conviction, or each conviction, to which the determination relates, or has reduced the sentence, or each sentence, to which the determination relates below the period specified in paragraph 36D(1)(b); and

o    the time for appealing, or applying for leave to appeal, the decision has expired without an appeal or application being lodged, or the decision is not appellable;

·          in proceedings under section 75 of the Constitution, or under this Act or another Commonwealth Act, a court finds that the person was not a national or citizen of a country other than Australia at the time the determination was made;

·          a declaration under section 36C (declared terrorist organisation) is disallowed by either House of the Parliament and the determination would not have been made if that declaration had not been made.

239.           The purpose of this provision is to ensure that if a court finally determines, or Parliament decides, that the basis for a citizenship cessation determination is factually incorrect, the determination is automatically overturned.

 

240.           New subsection 36K(2) provides that if an event mentioned in subsection 36K(1) occurs, the person’s citizenship is taken never to have ceased under new section 36B or 36D, because of the determination. However, the validity of anything done in reliance on the determination before the revocation is not affected.

 

241.           For example, this would mean a person’s cessation would preclude them from voting in a state or federal election. If the citizenship cessation were later taken to never have ceased, their voting rights would be reinstated and they would be able to vote at the next state or federal election. The decision taken that they could not vote in past elections would still be valid. There are a range of circumstances that may result in citizenship being taken to never have ceased. However, there also needs to be administrative certainty for the Government to take action following cessation of a person’s citizenship that should not be frustrated on the basis that the cessation determination may later be overturned or revoked.

 

36L - No resumption of citizenship if citizenship ceases under this Subdivision

242.           New section 36L replaces existing section 36A which is repealed by item 9 of this schedule. New section 36L makes amendments that are consequential to the items in this schedule.

 

243.           Existing section 36A provides that if a person ceases to be a citizen under section 33AA, 35 or 35A then Divisions 1 and 2 of this part do not apply in relation to the person on and after the time of that cessation.

 

244.           New section 36L makes consequential amendments to existing section 36L to provide that if a person ceases to be a citizen under Subdivision C of Division 3 of Part 2, Divisions 1 and 2 of this part do not apply in relation to the person after that cessation.

 

245.           The effect of both provisions is that a person whose citizenship is ceased under these provisions can never become an Australian citizen again. A note to that effect is inserted after new section 36L. 

Item 10  After subsection 48(5)

 

246.           Section 48 of the Citizenship Act provides that the Minister may arrange for the use of computer programs for decision making purposes.

 

247.           Item 10 inserts an exception to section 48, new subsection 48(5A), and makes it clear that existing section 48 does not apply in relation to anything done under new Subdivision C of Division 3 of Part 2 (relating to citizenship cessation determinations).

 

248.           This recognises that it would not be appropriate for citizenship cessation decisions made under the provisions of this Act to be computerised. 

Item 11  Subsection 51B(1)

 

249.           Existing subsection 51B(1) sets out the requirements relating to tabling reports in Parliament relating to determinations made under existing sections 33AA, 35 and 35A of the Citizenship Act.

 

250.            This item repeals existing subsection 51(1) and replaces it with the reporting requirements that are required in relation to the provisions of this Act.

 

251.           New subsection 51B(1) provides that as soon as practicable after each reporting period, the Minister must table a report in each House of the Parliament. This timeframe is consistent with the timeframe in existing subsection 51B(1).  

 

252.           New paragraphs 51B(1)(a)-(c) set out what the report must contain:

 

·          the number of notices of citizenship cessation given by the Minister under new paragraph 36F(1)(a) during the reporting period (51B(1)(a))

·          for each notice given under new paragraph 36F(1)(a) during the reporting period - a brief statement of the matters that are the basis for the determination which the notice relates (51B(1)(b))

·          the number of notices given by the Minister under new subsection 36H(4) during the reporting period (51B(1)(c)). A notice under section 36H(4) setting out the Minister’s decision must be issued if a person has applied for revocation of a citizenship cessation decision under new sections 36B or 36D.

 

253.           For clarity, new paragraph 51B(1)(c) does not require the Minister to set out whether the notice refused the application or revoked the citizenship cessation determination.

Item 12  Subsections 51C(1) and (2)

 

254.           Existing section 51C sets out the requirements for briefing the Parliamentary Joint Committee on Intelligence and Security (PJCIS). Existing section 51C(1) sets out that the PJCIS must be briefed if any of the events set out in paragraphs 51C(1)(a)-(c) occur. 51C(2) sets out the timeframe in which the Minister must inform the PJCIS.

 

255.           This item repeals existing subsection 51C(1) and (2) and replaces them with new subsection 51C(1).

 

256.           New subsection 51C(1) provides that the Minister must, in writing, inform the PJCIS as soon as practicable if any of the events listed in paragraphs 51C(1)(a) - (c) occurs:     

 

·          the Minister gives a person a notice of citizenship cessation under paragraph 36F(1)(a) - (51C(1)(a))

·          the Minister makes a determination under subsection 36G(1) that a notice of citizenship cessation should not be given- (51C(1)(a))

·          the Minister gives a person notice, under either of subsections 36H(4) or 36J(3) that the Minister has decided to revoke a citizenship cessation determination made under sections 36B or 36D - (51C(1)(a))

 

257.           The purpose and effect of Item 17 is to align the existing reporting requirements to PJCIS under the Citizenship Act with the new and amended provisions set out in this Act.

Item 13  Subsection 51C(5)

 

258.           Existing subsection 51C(5) sets out the details that a report to the PJCIS must contain.

 

259.           Item 13 repeals existing 51C(5) and replaces it with the details that are required in a report to the PJCIS under the provisions of this amending Act.

 

260.           This item provides that the briefing to the PJCIS must provide the matters that are the basis for the notice, determination or revocation referred to in paragraphs 51C(1)(a) - (c).

 

261.           The purpose and effect of item 18 is to align the existing requirements for reports to the PCIS under the Citizenship Act with the new and amendment provisions set out in this Act.

Independent National Security Legislation Monitor Act 2010

Item 14  Section 4 (paragraph (aa) of the definition of counter-terrorism and national security legislation)

 

262.           Part 1 of the Independent National Security Legislation Monitor Act 2010 sets out a number of preliminary matters. Existing section 4 of Part 1 provides definitions of relevant terms in the Independent National Security Legislation Monitor Act 2010.

 

263.           This item repeals existing paragraph 4(aa) of the definition of counter-terrorism and national security legislation and substitutes:

 

·          Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 (citizenship cessation determinations) and any other provision of that Act so far as it relates to that Subdivision

 

264.           The purpose of this item is to enable the Independent National Security Legislation Monitor to review, on his or her own initiative, the operation, effectiveness and implications of the provisions.

 

265.           It is important that the new provisions are able to be reviewed to determine their operation as intended, to enforce that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.

Intelligence Services Act 2001

Item 15  Paragraph 29(1)(ca)

 

266.           Part 4 of the Intelligence Services Act 2001 establishes the Parliamentary Joint Committee on Intelligence and Security. Existing subsection 29(1) of Part 4 of the Intelligence Services Act 2001 sets out the functions of the Committee.

 

267.           This item repeals existing paragraph 29(1)(ca), which currently provides that the PJCIS is to review the operation, effectiveness and implications of sections 33AA, 35 and 35A of the Citizenship Act, by 1 December 2019.

 

268.           New paragraph 29(1)(ca) extends the review date to 30 June 2021 and provides that Subdivision C of Division 3 of Part 2 as amended by the provisions of this Act are the subject for the review, as well as any other provision of that Act as far as it relates to those sections.

 

269.           The purpose of this item is to require the Parliamentary Joint Committee on Intelligence and Security to review the operation, effectiveness and implications of, the amended Citizenship Act, and to clarify that the Committee need not review existing provisions 33AA, 35 and 35A of the Citizenship Act. 

 

270.           The effect of this item is to ensure the provisions set out by the Bill are reviewed appropriately - to determine its operation as intended, to enforce that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.

 

 



 

Part 2 Application and transitional provisions

 

271.           Part 2 sets out the application and transitional provisions that apply to the commencement of this Act.

 

Item 16  Definitions

 

272.           Item 16 provides a number of definitions for the purposes of part 2 of schedule . The following definitions are provided:

·          Act means the Australian Citizenship Act 2007 .

·          amended Act means the Act as in force after commencement.

·          cessation notice : see subparagraph (c)(i) of the definition of designated non-citizen in this item.

·          commencement means the time this item commences.

·          designated non-citizen : a person is a designated non-citizen , for conduct engaged in by the person, if:

o    immediately before commencement, the person is not an Australian citizen; and

o    the person ceased to be an Australian citizen under section 33AA or 35 of the Act as in force before commencement because of the conduct; and

o    either:

o    before commencement, the Minister gave, or made reasonable attempts to give, the person a notice under paragraph 33AA(10)(a) or 35(5)(a) of the Act in relation to the conduct (a cessation notice ); or

o    immediately before commencement, a determination was in force under subsection 33AA(12) or 35(7) of the Act in relation to the conduct (a no-notice determination ).

Note:              A person who, before commencement, ceased to be an Australian citizen under section 33AA or 35 of the Act because of conduct engaged in by the person might be an Australian citizen again by the time of commencement (see subsections 33AA(24) and 35(19) of the Act as in force immediately before commencement). This person is not a designated non-citizen because paragraph (a) of the definition of that expression does not apply to the person.

·          designated non-citizen determination : see subitem 17(1).

·          no-notice determination : see subparagraph (c)(ii) of the definition of designated non-citizen in this item.

 

Item 17  Citizenship that ceased under section 33AA or 35 as Act in force before commencement

 

273.           Item 17 sets out how the provisions of this Act will apply to those persons whose citizenship ceased under existing section 33AA or 35 under the Act as in force before the commencement of this Act.

 

274.           Subitem17(1) provides that at commencement, the Minister is taken to have made a determination (a designated non-citizen determination) under new subsection 36B(1), in relation to a person whose citizenship was ceased under existing subsections 33AA or 35 (a designated non-citizen ).

 

275.           This subsection defines of designated non-citizen determination.

 

276.           Subitem 17(2) makes it clear that after commencement, the amended Citizenship Act will apply to such a person as if a determination had been made under the provisions of this Act.

 

277.           Subitem 17(3) makes it clear that in cases where the Minister gave, or made reasonable attempts to give, the person a notice in relation to the conduct that was the basis of the citizenship cessation, then:

 

·          the cessation notice is taken to have been given under section 36F; and

·          the cessation notice is taken to have been given at the time the Minister gave, or first reasonably attempted to give, the notice to the person under the existing Act as in force before commencement of these provisions; and

·          the person cannot apply under section 36H of the amended Act to have the designated non-citizen determination revoked.

 

278.           This ensures that those people whose citizenship ceased, and received notice (or notice was attempted to be given) under the existing provisions in the Citizenship Act cannot apply for revocation upon commencement. Those people who were not provided notice under the Citizenship Act at the time of commencement, will be able to apply to the Minister for revocation when notice is provided under these provisions. 

 

279.           Subitem 17(4) makes it clear that in cases where the Minister has made a determination under existing subsections 33AA(12) or 35(17) of the Citizenship Act to not provide notice of citizenship cessation to the person, that ‘no notice’ determination continues in force as if it had been made under subsection 36G(1). Those provisions relate to a decision by the Minister not to provide notice - defined in item 16 of part 2 of this schedule as a no notice determination. The no notice determination is taken to have been made at the time it was made under the Citizenship Act in force before commencement.

 

280.           A note under subitem 17(4) explains that the 5 year period in which the Minister must consider whether to revoke the determination at least every 90 days continues until the end of the five years of the time of the determination, rather than the 5 year period re-starting at the commencement of this Act. The note also clarifies that the Minister may also decide to extend the determination under subsection 36G(4) for 1 year. 

 

281.           Subitem 17(5) makes it clear that a designated non-citizen determination in relation to a person who is a designated non-citizen :

 

·          does not alter the time the person’s citizenship is taken to have ceased under section 33AA or 35 of the existing Citizenship Act, and;

·          the person remains at all times a person who is not an Australian citizen, unless;

·          the designated non-citizenship determination is revoked under new section 36H, 36J or 36K of this Act.

 

282.           This subsection also makes it clear that if new section 36K is satisfied in relation to a designated non-citizen , or the Minister is satisfied under new section 36J that revoking a designated non-citizen determination is in the public interest, then the relevant section will apply in order to revoke a designated non-citizen determination .

 

283.           Subitem 17(6) sets out that the Citizenship Act as in force immediately before commencement ceases to apply in relation to anything to which this amending Act applies in accordance with subitems 17(1) - (5). This subsection is enacted to avoid doubt.

 

284.           Subitem 17(7) provides that the operation of existing section 33AA of the Citizenship Act is to be disregarded for all purposes if, before commencement, the Minister:

 

·          did not give or make reasonable attempts to give the person a notice under existing subsection 33AA(1)(a) in relation to the conduct.

·          did not make a determination under existing subsection 33AA(12) of the Act in relation to the conduct.

 

285.           This subsection makes it clear that there is no citizenship cessation in circumstances where the person may have engaged in the conduct under existing section 33AA but the Minister has not become aware and made any determination in relation to that conduct.

 

286.           Subitem 17(8) provides that if the Minister rescinded the notice and exempted a person from the operation of existing section 33AA in relation to the conduct engaged in by the person, the Minister must not make a determination under new section 36B of the provisions in this Act in relation to the same conduct.

 

287.           For clarity, this subsection does not prevent the person from being subject to new section 36B in relation to different conduct.

 

288.           Subitem 17(9) provides that the operation of existing section 35 of the Citizenship Act is to be disregarded for all purposes if, before commencement, the Minister:

 

·          did not give or make reasonable attempts to give the person a notice under existing subsection 35(5)(a) in relation to the conduct; and

·          did not make a determination under existing subsection 35(7) of the Act in relation to the conduct.

 

289.           This subitem makes it clear that there is no citizenship cessation in circumstances where the person may have engaged in the conduct under existing section 35 but the Minister has not become aware and made a determination in relation to that conduct.

 

290.           Subitem 17(10) provides that if the Minister rescinded the notice and exempted a person from the operation of existing section 35 in relation to the conduct engaged in by the person, the Minister must not make a determination under new section 36B of the provisions in this Act in relation to the same conduct.

 

291.           For clarity, this subsection does not prevent the person from being subject to new section 36B in relation to different conduct.

 

Item 18  Application of section 36B of amended Act

 

292.           Subitem 18(1) makes clear that new section 36B applies in relation to conduct specified in 36B(5)(a)-(h) engaged in on or after 29 May 2003, regardless of whether the conduct commenced before, on, or after 29 May 2003. 

 

293.           This does not include conduct to which a designated non-citizen determination relates.

 

294.           Subitem 18(2) provides new section 36B applies in relation to conduct specified in 36B(5)(i) engaged in on or after 12 December 2015, regardless of whether the conduct commenced before, on or after that date.

 

295.           This does not include conduct to which a designated non-citizen determination relates .

 

296.           Subitem 18(3) provides new section 36B applies in relation to conduct specified in 36B(5)(j) whether it was engaged in before, on or after commencement.

 

297.           This does not include conduct to which a designated non-citizen determination relates .

Item 19  Application of section 36D of amended Act

 

298.           Item 19 makes clear that new section 36D applies in relation to the conviction of a person:

·          that occurs after commencement; or

·          that occurred before commencement if:

o the conviction occurred on or after 29 May 2003, and;

o the person was sentenced to a period of imprisonment of at least 3 years, or to periods of imprisonment that total at least 3 years, in respect of the conviction.

Item 20  Declared terrorist organisations

 

299.           Item 20 provides that despite the repeal of section 35AA of the Act by this Schedule, a declaration in force under that section immediately before commencement continues in force, after commencement, as if it had been made under section 36C of the amended Act.

 

300.           This makes it clear that the two terrorist organisations that are declared under existing section 35AA, Islamic State and Jabhat Al-Nusra, remain declared terrorist organisations for the purposes of new section 36C, and there is no period where such declarations are not in force.

Item 21  Section 51B report

 

301.           Item 21 provides that the report prepared for the purposes of new section 51B of this Act in relation to the reporting period in which commencement occurs must set out:

·          for the part of the reporting period that occurs before commencement—the matters required by subsection 51B(1) of the Act as in force immediately before this item commences; and

·          for the part of the reporting period that occurs after this item commences—the matters required by subsection 51B(1) of the amended Act.

Item 22  Australian citizenship

 

302.           Item 22 provides that the amendments made by this Act apply in relation to a person in relation to part 2 of this schedule, regardless of:

 

·          whether the person became an Australian citizen before or after commencement; or

·          whether the person ceased to be an Australian citizen before commencement.

 

303.           This item makes it clear that the provisions in this Act will apply in relation to citizens regardless of when they became an Australian citizen.





 

Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Citizenship Amendment (Citizenship Cessation) Bill 2019

The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

1.       The Bill amends existing sections 33AA, 35 and 35A of the Australian Citizenship Act 2007 (the Act). 1

 

2.       The key amendment to existing sections 33AA and 35 is replacing the current operation of law model, whereby a person automatically ceases their Australian citizenship through their conduct, with a Ministerial decision-making model.

 

3.       The purpose of the Bill remains the same as when the terrorism-related citizenship loss provisions were enacted in 2015. The Parliament recognised that Australian citizenship is a common bond, involving reciprocal rights and obligations. Citizens may, through certain conduct incompatible with the shared values of the Australian community, sever that bond and repudiate their allegiance to Australia.

 

4.       Under sections 36B and 36D, the Minister may make a determination that for certain conduct or following conviction and sentence for specified terrorist-related conduct a person ceases to be an Australian citizen if their conduct demonstrates a repudiation of their allegiance to Australia and that it is not in the public interest for the person to remain an Australian citizen.

 

5.       The Bill retains the three mechanisms for a person to be considered for citizenship cessation:

 

·          the person has engaged in specified terrorist-related conduct that demonstrates they have repudiated their allegiance to Australia;

·          the person serves in the armed forces of a country at war with Australia, or fights for, or is in the service of, a declared terrorist organisation outside Australia. A declared terrorist organisation is any terrorist organisation as listed under the Criminal Code that the Minister declares to be a terrorist organisation; 

·          the person is convicted of a specified terrorism offence as prescribed in the Criminal Code.

 

6.       The cessation provisions apply regardless of how the person became an Australian citizen: that is, whether by operation of law (regardless of whether a person acquired Australian citizenship from birth or by application).  However, the Minister must not make a determination unless satisfied that the person would not become a person who is not a national or citizen of a country other than Australia. 

 

7.       Under Section 36F, on making a determination to cease an individual’s citizenship, the Minister must issue a notice to that effect. Section 35G provides that the Minister may determine to withhold notice on the basis that provision of notice could prejudice the security, defence, or international relations of Australia, or Australian law enforcement operations.

 

8.       A person in the migration zone whose citizenship ceases acquires an ex-citizen visa by operation of law (see section 35 of the Migration Act 1958 ). The ex-citizen visa is a permanent visa allowing the holder to remain in, but not enter or re-enter Australia. If the person is outside the migration zone when their Australian citizenship ceases they may be eligible for a visa, such as the resident return visa. In both cases, the person may fail the character test.  

 

9.       Section 36H provides a person subject to a cessation determination 90 days after notice has been provided to apply in writing to the Minister to have a cessation determination revoked. The Minister must consider the application and must revoke the determination if satisfied:

 

a.        that at the time of the determination the person was not a national or citizen of another country; or

b.       that the person did not engage in the conduct to which the determination relates.

 

When taken together the provisions provide ample protections to ensure that person’s citizenship cannot be ceased by Ministerial determination on the basis of conduct that was otherwise inadvertent. 

 

10.   The Minister may revoke a determination under section 36H if satisfied that revoking the determination would be in the public interest.

 

11.   Section 36J provides a safeguard by enabling the revocation of a citizenship cessation determination on the Minister’s own initiative. Should the Minister exercise this power the person’s citizenship is taken never to have ceased. The Minister does not have a duty to consider whether to exercise the power under subsection 36J.

 

12.   Section 36K provides a similar safeguard whereby a person’s citizenship is automatically taken never to have ceased in certain circumstances, including where a court finds the person was not a national or citizen of a country other than Australia at the time of the determination.

 

13.   The Bill provides that section 36B applies in relation to conduct specified at section 36B(5)(a)-(h) from 29 May 2003 onwards. The retrospective application of this provision recognises that past terrorist conduct is conduct that all Australians would view as repugnant and in contradiction of the values that define our society.

 

14.   The Bill provides that section 36D applies in relation to a conviction of a person for a specified terrorism offence from 29 May 2003 onwards if the period or periods of imprisonment totals at least 3 years. In practice this lowers the previous threshold from 6 years for conviction from 12 December 2015 to present and from 10 years for convictions for convictions from 12 December 2005 to 12 December 2015. This amendment reflects the risks posed by persons convicted of serious, specified terrorism offences.

 

15.   In 2015, the current citizenship loss provisions were included in the Australian Citizenship Act because of the threat that foreign terrorist fighters presented to Australia and its interests. These provisions have helped protect the Australian community and limit citizenship to those who embrace and uphold Australian values. To date, the provisions have assisted in managing the threat posed by foreign terrorists as far from Australian shores as possible.

 

16.   Notwithstanding, around 80 Australians of counter-terrorism interest are believed to be still in Syria and Iraq, some of whom may seek to return to Australia. It is appropriate for the Minister to make a determination to cease a person’s citizenship based on a broad range of considerations and alongside other available measures to manage the threat. The proposed amendments enable optimal decision-making outcomes for Australia’s national security.

 

17.   Australia’s national security and counter-terrorism laws are under constant review to ensure that Australia’s law enforcement and intelligence agencies have the powers they need to prevent terrorist attacks and appropriately deal with those who seek to commit them. The Bill builds on, adapts, and modernises the citizenship cessation provisions so that they are part of a suite of measures that can be applied to manage an Australian of counter-terrorism interest. The citizenship cessation provisions will sit alongside the control order scheme, prosecution of terrorism offences, temporary exclusion orders, the post-sentence preventative detention, and de-radicalisation programs, and be applied on a case-by-case basis.

 

18.   Cessation of citizenship is a significant consequence that can be applied in circumstances where, a person, through their own conduct, demonstrates a repudiation of their allegiance to Australia. Cessation of a person’s formal membership of the Australian community is appropriate to reduce the possibility of a person engaging in acts or further acts that harm the Australian community, and to protect the integrity of the Australian citizenship framework by limiting membership of the community to those who uphold Australian values.

 

19.   The measures may also have a deterrent effect by making persons aware that their Australian citizenship is in jeopardy if they participate in certain conduct contrary to their allegiance to Australia. 

Human rights implications

This Bill engages the following rights:

·          Non-discrimination and equality before the law (Article 2 of the International Covenant on Civil and Political Rights (ICCPR))

·          Freedom of movement and choice of residence (Article 12(1) (ICCPR)

·          Right to leave a country (Article 12(2) of the ICCPR)

·          Right to enter one’s own country (Article 12(4) of the ICCPR)

·          Expulsion of aliens (Article 13 of the ICCPR)

·          Equality before the courts and tribunals (Article 14 of the ICCPR)

·          Retrospectivity (Article 15 of the ICCPR)

·          Right relating to the family unit (Articles 17 and 23 of the ICCPR)

·          Equality before the law (Article 26 of the ICCPR)

·          Best interests of the child (Article 3 of the Convention on the Rights of the Child (CRC)

·          Right to identity and family (Article 7 of the CRC)

·          Right to preservation of identity (Article 8 of the CRC)

·          Right to participation (Article 12 of the CRC)

Right to freedom of movement and choice of residence - Article 12(1) ICCPR

20.   The measures in the amendments engage Article 12 of the ICCPR, which provides:

               (1)             Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

 

               (2)             Everyone shall be free to leave any country, including his own.

 

               (3)             The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order ( ordre public ), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

 

               (4)             No one shall be arbitrarily deprived of the right to enter his own country.

 

21.   The Bill does not of its own force alter a person’s freedom of movement or the ability to choose a residence. Cessation of citizenship may ultimately lead to circumstances which alter whether or not the person is lawfully within or able to enter Australian territory.

 

22.   In considering whether to cease a person’s citizenship, the Bill requires that the Minister be satisfied that it is not in the public interest for the person to remain an Australian citizen, having regard to a range of factors listed at section 36E. The requirement to consider and balance the various factors is intended to ensure that any interference to the right to freedom of movement and choice of residence is not arbitrary. The Minister must take into account the individual circumstances of the case in determining whether to cease a person’s citizenship.

 

23.   If the person is in Australia at the time their citizenship is ceased, it does not automatically result in their removal from Australia. They would be granted an ex-citizen visa by operation of law upon the cessation of their citizenship. The ex-citizen visa may be subject to cancellation under processes established in the Migration Act 1958 (Migration Act); however, these decisions, including on character grounds, are generally discretionary. Mandatory cancellation of a visa under the Migration Act can occur if the person has a ‘substantial criminal record’ and is serving a sentence of imprisonment for an offence against the law of the Commonwealth, a State or a Territory. Relevantly, section 501(17)(c) states that a person has a substantial criminal record where they have been sentenced to a term of imprisonment of 12 months. However, a discretionary power to revoke that cancellation is available, which allows full consideration of the person’s individual circumstances. The impact of cancelling a non-citizen visa is that the individual becomes an unlawful non-citizen, and subject to detention and removal processes in the Migration Act. Any immigration detention pending removal, and/or consideration of other options, involves a risk-based approach to an appropriate placement and management while the person’s status is being resolved.

 

24.   If the person is outside Australia at the time their citizenship is ceased, they may apply for a visa for entry to Australia. As noted above, given the circumstances for cessation, it is likely they would fail the character test. However, any refusal on this basis would be undertaken in accordance with legislative requirements.   

 

25.   Any measures which result in the freedom of movement and the ability to choose a residence being restricted will be based in the Migration Act or national security legislation and, therefore, have a lawful domestic basis. The discretionary nature of the citizenship loss provisions means that, where appropriate, other measures can be applied to mitigate the risks to the community. In circumstances where a person’s Australian citizenship is ceased, such measures will be necessary to protect national security, public order, and the rights, freedoms and integrity of the Australian community. This is consistent with the permissible limitations in Article 12(3) of the ICCPR being proportionate, in the Government’s view, to the existing and emerging threats to national security which Australia faces.

 

26.   In addition, there are safeguards to ensure that in certain circumstances, a citizenship cessation determination can be revoked and person’s citizenship taken never to have ceased. This includes on application to the Minister, which the Minister must review, through the Minister’s own initiation, or automatically under certain circumstances, including:

 

c.        for a determination under 36B, if a court find that the person did not engage in the conduct to which the determination relates;

 

d.       for a determination under 36D, the sentence has been overturned or reduced below the required three years and all avenues for appeal have been exhausted or expired;

 

e.        following a court ruling that the person was not a national or citizen of a country other than Australia at the time of the determination; or

 

f.        the declaration under 36C (declared terrorist organisation) is disallowed by either House of the Parliament

Right to leave a country - Article 12(2) ICCPR

27.   The ability to leave Australia will not be directly affected by the provisions, but may be an indirect outcome. Cessation of citizenship following conviction for a specified terrorism offence may lead to visa cancellation and removal; in these circumstances Article 12(2) would not be relevant.

 

28.   If a person whose Australian citizenship ceases is allowed to remain in Australia, their ability to leave the country may be restricted under other legislation on national security grounds. The inability to hold an Australian passport could potentially prevent travel outside Australia. However, as the Minister must be satisfied the person would not become a person who is not a national or citizen of any country, the person may be able to obtain a travel document from another country, or they may be issued a temporary travel document by Australia. 

 

29.   There are safeguards in the Bill to ensure that under certain circumstances, a citizenship cessation determination can be revoked and person’s citizenship taken never to have ceased. This includes reinstatement of citizenship on application to the Minister, through Minister initiated revocation, or automatically in the following circumstances outlined above (see paragraph 26).

Right to enter one’s own country - Article 12(4) ICCPR

30.   While a person whose citizenship has ceased would no longer be a citizen under Australian law, Australia may still be considered their “own country” for the purposes of Article 12(4). The phrase “his own country” has been interpreted broadly by the UN Human Rights Committee and the drafting history of the provisions supports the interpretation that “own country” goes beyond mere nationality. However, where a person has repudiated their allegiance to Australia, resulting in the cessation of their citizenship, it is considered that any ties they may have to Australia have been voluntarily severed by their own conduct and this may result in Australia no longer being their “own country” for the purposes of Article 12(4). The person should not be entitled to gain any advantage from a relationship they are responsible for breaking.

 

31.   Should circumstances arise where a person whose citizenship has ceased can properly consider Australia to be “his [or her] country”, depriving them of the right to enter Australia would not be arbitrary. It would be based on a genuine threat to Australia’s security posed by a person who, through specific conduct or conviction, has repudiated their allegiance to Australia and the Minister is satisfied it is not in the public interest for the person to remain and Australian citizen. The cessation of Australian citizenship (thereby preventing return to Australia) is proportionate to the legitimate goal of ensuring the security of the Australian community.

Expulsion of Aliens - Article 13 ICCPR

32.   Article 13 of the ICCPR is also engaged, and provides that:

 

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

 

33.   The amendments would not result directly in the expulsion of a person from Australia. However, expulsion may be an outcome of a process under the Migration Act following cessation of Australian citizenship.

 

34.   Removal from Australia would only occur after the person’s lawful status in Australia ends, i.e. after any visa they held following cessation of citizenship was cancelled on the grounds, and subject to the processes, established in the Migration Act. Removal following cessation of citizenship in these circumstances would therefore occur in accordance with law, be based on national security grounds and subject to the processes established in the Migration Act. Further, both the citizenship cessation decision and the visa cancellation would be subject to review by a court.

Equality before the courts and tribunals - Article 14 ICCPR

35.   The measures engage Article 14 of the ICCPR, which provides:

 

(1)    All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order ( ordre public ) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

 

(2)    Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

 

(3)    In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

(4)    In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

 

(5)    Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

 

(6)    When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

 

(7)    No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

 

36.   The provisions do not limit the right to a fair trial and fair hearing. When notice of cessation of citizenship is given to a person, they are provided 90 days to apply to the Minister for a revocation of the cessation determination. Natural justice applies to this process providing the person an opportunity to make representations on their case.

 

37.   The Minister’s power to determine a person’s citizenship has ceased is discretionary. The Minister may make a determination that for certain conduct or convictions a person ceases to be an Australian citizen if their conduct demonstrates a repudiation of their allegiance to Australia and that it is not in the public interest for the person to remain an Australian citizen.

 

38.   In circumstances where the Minister has made a determination to cease a person’s citizenship, the provisions make clear that the starting presumption is that the Minister must give notice of the cessation to the affected person. Notice may be withheld if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia or Australian law enforcement operations. A determination to withhold notice can be in place for up to 6 years, but a decision to withhold notice must be reviewed every 90 days. The requirement for frequent reviews gives ample opportunity for the individual circumstances to be assessed and prevent arbitrary withholding of notice. This recognises that the provisions seek to balance competing public interests, including national security and the rights of the person. At the conclusions of the 6 years, notice must be provided to the individual, giving a maximum period during which notice may be withheld. Withholding of notice does not prevent the person applying for judicial review should they become aware of the cessation determination through another means.

 

39.   Once the person is provided notice, they have 90 days to apply to the Minister is writing for a revocation of the determination that resulted in the cessation of their citizenship. Outside the 90 day period, if the Minister is satisfied the person did not receive the original notice, the Minister may provide notice again and the person is provided 30 day to make an application. Natural justice is afforded to this process. This ensures the person is provided an opportunity to make representations and present information specific to their case to the Minister.

 

40.   The Bill also contains safeguards to provide for equality before the courts and tribunals. This includes automatic reinstatement of citizenship under certain circumstance (see paragraph 26). In these circumstances, a person’s citizenship is automatically reinstated and their citizenship is taken never to have ceased.

 

41.   In addition, a person has the right to access judicial review under section 75(v) of the Constitution or section 39B of the Judiciary Act 1903 in relation to the Minister’s cessation determination or the Minister decision on an application for revocation. In any judicial review action, the Court would consider whether or not the power given by the Citizenship Act has been exercised lawfully. A person also has a right to seek declaratory relief as to whether the conditions giving rise to the cessation of citizenship have been met.

 

42.   The transitional provisions provide that a designated non-citizen who has been provided a cessation determination notice is unable to apply to the Minister for a revocation of the determination. The persons still have equality before the courts and tribunals as they are subject to the automatic reinstatement of citizenship in circumstance outlined above (see paragraph 26) and can access judicial review.

 

43.   In regards to section 36D, the power to make a determination following conviction in no way interferes with the right to a fair and public hearing or appeal rights. In any judicial review action, the Court would consider whether or not the power given by the Citizenship Act has been exercised lawfully. A person also has a right to seek declaratory relief as to whether the conditions giving rise to the cessation of citizenship have been met.

 

44.   Relevantly, making a citizenship cessation determination following conviction does not amount to an additional punishment for an offence for which a person has already been convicted or acquitted. Rather than being a punitive measure, this provision, and its retrospective application, provides further administrative options to manage offenders who continue to pose a threat to the community. Section 36D does not create a new criminal offence; rather, it allows for the imposition of an administrative consequence at the Minister’s discretion. When doing so, the Minister must be satisfied it is not in the public interest for the individual to remain an Australia citizen, having regard to a number of factors.

Retrospectivity - Article 15 ICCPR 

45.   Article 15(1) of the ICCPR provides that:

 

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. 

 

46.   The Bill expands the scope of the cessation provisions in two ways. First, in relation to section 36B(5)(a)-(h), the Minister may take into account any relevant conduct from 29 May 2003. Secondly, under section 36D any individual who was convicted of a relevant terrorism offence on or after 29 May 2003 and sentenced to a period or periods totalling at least three years will be eligible for cessation.

 

47.   Past terrorist-related conduct is widely recognised as repugnant and a contradiction of the values that define our society. It is appropriate to take past conduct into consideration in order to ensure the safety and security of Australia and its people, and to ensure the community of Australian citizens is limited to those who continue to retain an allegiance to Australia. The discretionary nature of the cessation provisions and the public interest criteria the Minister may regard in making a determination prevent arbitrary application.

 

48.   In regards to the retrospective application of section 36B, this is consistent with the date from which relevant convictions can form the basis of a citizenship cessation determination under 36D. While this extends the power of subsection 36B, it only has legal consequences if the Minister decides to make a determination under section 36B after commencement, and the conduct meets the other requirements the Minister is required to consider when making such a determination.

 

49.   In addition, the definition of a ‘relevant terrorism conviction’ in section 36D narrows the retrospective application of this provision. Section 36D only applies to terrorism offences which target behaviour that is especially harmful to community safety and amounts to a repudiation of allegiance to Australia. It does not, for instance, include contravention of preventative detention orders or control orders which are designed to enable law enforcement agencies to intervene early to protect the community. Orders under these schemes are made on lower, non-criminal thresholds.  

 

50.   Relevantly, the responsible Minister’s role does not relate to the imposition of penalties at the point of conviction, which could be argued to be comparable to a judicial function. Rather, the Minister’s role is to determine whether that conviction, based on public interest considerations, including the severity of the conduct that was the basis of the conviction, the degree of threat they pose to the Australian community and any other matters of public interest, justifies the cessation of an individual’s Australian citizenship.

Right relating to the family unit - Article 17 and 23 ICCPR 

51.   Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and everyone has the right to the protection of the law against such interference or attacks.

 

52.   Article 23(1) of the ICCPR provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

 

53.   As outlined above, cessation of citizenship under the provisions may lead to visa cancellation and removal, including in circumstances where that individual’s family members remain in Australia, resulting in an interference with the family unit. However, it is the Government’s position that such interference would not be unlawful, and also would not be arbitrary. The cessation of citizenship and any subsequent visa cancellation and removal is the consequence of a genuine threat to Australia’s security posed by a person who has objectively demonstrated an intent to repudiate their allegiance to Australia by their conduct. As the cessation and cancellation decisions are discretionary, the impact on family members would be considered and any limitation of these rights in an individual case would be proportionate to the legitimate goal of ensuring the security of the Australian community.

Right to non-discrimination and equality before the law - Articles 2 and 26 ICCPR

54.   Article 2(1) of the ICCPR provides that:

 

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

55.   Article 26 of the ICCPR provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

56.   Articles 2(1) and 26 are stand-alone rights which will be breached if a person does not enjoy equality before the law or equal protection of the law with others, on the basis of discrimination on a prohibited ground. The amendments provide for differential treatment on the basis of conduct or the commission of certain offences and therefore it may engage the rights to equality and non-discrimination, for example on the basis of political or other opinion.

 

57.   The amendments also differentiate on the basis that they apply only to those persons whom the Minister is satisfied hold dual citizenship. This is in line with Australia’s international obligations which prohibits citizenship cessation in circumstances where a person is not a national or citizen of any other country.

 

58.   As observed by the Human Rights Committee in General Comment no. 18, not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR.  

 

59.   Differentiation on the basis of dual nationality is the consequence of obligations relating to statelessness, and as such represents a measure of extra protection for those without dual nationality, rather than a means of possibly selecting those who may be subject to the new provisions. In addition, there are safeguards in the Bill to ensure that the provisions only apply to people who the Minister is satisfied are a national or citizen of a country other than Australia at the time of the determination. In addition, section 36K(1)(c) provides for automatic reinstatement of citizenship should a court find that the person was not a citizen or national of another country at the time the Minister made the determination.

 

60.   By acting against Australia and Australian interests in engaging in terrorism, a person has repudiated their allegiance to Australia. Cessation of Australian citizenship is proportionate to the seriousness of such conduct, and acts to protect the Australian community from further harm. It is on the basis of a person’s own conduct that they have voluntarily severed any ties they may have to Australia and the person should not be entitled to gain any advantage from a relationship they are responsible for breaking.

The best interests of the child - Article 3 CRC

61.   Article 3(1) of the CRC provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

62.   This right would be engaged in two broad circumstances: in respect of a minor directly, and in respect of the parent or other caregiver of a minor. 

 

63.   There are documented cases of children fighting with extremist organisations overseas and being otherwise involved in terrorist activities and, therefore, section 36B applies to all Australian (dual) citizens aged 14 years old or over. This age limit in this provision mirrors the existing provisions and, importantly, aligns with the age of criminal responsibility under the Criminal Code

 

64.   Section 36D does not mirror the requirement in section 36B that a person be 14 years or older in order to make a determination in relation to citizenship cessation. This acknowledges that, in order for the court to record a conviction for a child, the court will have engaged in consideration of culpability in the finding of guilt. Further, a conviction resulting in a sentence of at least 3 years, or periods totaling 3 years for one of the specified offences, would further reflect the seriousness of the culpability. Relevantly, where a child is involved in terrorist activities, and is held criminally responsible for their conduct under Australian law, the Government must consider the protection of the Australian community alongside the best interests of the child.

 

65.   In considering whether to cease a person’s citizenship, the Bill requires that the Minister be satisfied that it is not in the public interest for the person to remain an Australian citizen, having regard to a range of factors listed at section 36E. This expressly includes the best interests of the child as a primary consideration if the person is aged under 18. The requirement to consider the various factors is intended to ensure that the decision to cease the citizenship of a child is taken consistently with Australia’s obligations under Article 3(1) of the CRC.

 

66.   Cessation of a parent’s Australian citizenship under these provisions does not result in the cessation of the child’s Australian citizenship.

Rights of children to nationality, identity, family etc. - Articles 17, 23 and 24 ICCPR and Article 7 and 8 CRC

67.   Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and everyone has the right to the protection of the law against such interference or attacks.

 

68.   Article 23(1) of the ICCPR provides that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

 

69.   Article 24 of the ICCPR provides that:

(1)    Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

(2)    Every child shall be registered immediately after birth and shall have a name.

(3)    Every child has the right to acquire a nationality.

70.   Article 7 of the CRC provides that:

(1)    The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

(2)    States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

71.   Article 8 of the CRC states:

(1)    States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

(2)    Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity.

72.   While the new cessation provisions engage Article 24(1), as noted above, the cessation of a child’s Australian citizenship would only occur as a result of conduct that repudiates allegiance to Australia. The amendments provide that before making a determination the Minister must be satisfied that cessation of citizenship is in the public interest and that, in considering the public interest, the Minister must have regard to numerous matters, including the best interests of the child.  

 

73.   The amendments engage Article 8(1) in that they may limit the right of the child to preserve his or her nationality.  Cessation is expressly not available in circumstances where they would render a child stateless; as such, the provisions cannot deprive a child of nationality, only their Australian citizenship.   

 

74.   Any cessation of a child’s citizenship will only apply in circumstances where the Minister is satisfied the child themselves meets the criteria for cessation. Additionally, in considering whether to cease a person’s citizenship, the Bill requires that the Minister be satisfied that it is not in the public interest for the person to remain an Australian citizen, having regard to a range of factors listed at section 36E. This expressly includes the best interests of the child as a primary consideration if the person is aged under 18.

Right to participation - Article 12 CRC

75.   Article 12 of the CRC provides:

 

(1)    States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 

(2)    For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

76.   The Minister’s powers to make a cessation determination in respect of a person over 14 years of age expressly excludes the rules of natural justice. However, the provisions also provide for an affected person to apply for a revocation of the Minister’s decision, providing a process for the person to be heard in relation to the decision. Insofar as this is a limitation on the right to be heard, it is necessary and proportionate in the circumstances, given the serious conduct on the part of a child that has given rise to the cessation provisions in the first place. Any impact that cessation may have on the child, and the child’s best interests, will be considered by the Minister in making the initial cessation determination.

 

77.   Furthermore, where the provisions set out the ability for an affected person to apply for revocation of the Minister’s decision, the Minister must afford natural justice.  If the child or parent makes such representations to the Minister, the Minister may, having regard to these representations and any other matters the Minister considers relevant, decide not to revoke the Australian citizenship of the child. These provisions give the child, the child’s parent or the child’s representative the opportunity to be heard, thereby satisfying Article 12. This strikes the appropriate balance between giving a person a fair opportunity to address any issues raised in the information before the Minister while ensuring the effectiveness of cessation as a measure to protect the Australian community from harm. 

Conclusion

78.   The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . To the extent that the provisions may limit some human rights, those limitations are reasonable, necessary, balanced with safeguards, and proportionate with respect to the Bill’s purpose. The Bill reflects the Government’s strong approach to combating terrorism, and commitment protecting sovereignty and safety of the country and its citizens.




[1] Where more than one maximum penalty is specified, the penalty differs according to specific elements of the offence.

1 Note that under the new provisions, previous sections 33AA and 35 have become section 36B, and previous section 35A has become section 36D.