Commonwealth of Australia Explanatory Memoranda

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AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP CESSATION) BILL 2020

                                     2019-2020




       THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                         HOUSE OF REPRESENTATIVES




AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP CESSATION) BILL
                            2019




            ADDENDUM TO THE EXPLANATORY MEMORANDUM




 (Circulated by authority of the Minister for Home Affairs, the Hon. Peter Dutton MP)

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AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP CESSATION) BILL 2019

The purpose of this addendum is to provide additional clarifying material to the Explanatory
Memorandum to the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019.

This addendum responds to recommendations one and two of the Advisory Report on the
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (the Advisory Report),
prepared by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), tabled
on 1 September 2020.

This addendum also responds to a request of the Senate Standing Committee for the Scrutiny
of Bills in Scrutiny Digest No. 7 of 2019, dated 16 October 2019 and in Scrutiny Digest No.
8 of 2019, dated 13 November 2019. The addendum provides additional explanatory
material to clarify that the Minister will consult with the Minister for Foreign Affairs on
international relations considerations prior to making individual citizenship cessation
determinations.

SCHEDULE 1 - Amendments

Part 1 - Amendments

Australian Citizenship Act 2007

Item 9         Section 36A

1. In the paragraph 40 on page 7 of the Explanatory Memorandum, omit the second sentence
   and insert:

   New paragraphs 36B(1)(a)-(c) set out the matters that the Minister must be satisfied of
   when making such a determination. Case law indicates that the Minister's satisfaction of
   these matters would need to be formed reasonably.

2. This additional material clarifies that the Minister must be satisfied of the matters set out
   in new paragraphs 36B(1)(a)-(c) when considering whether to make a determination that
   a person ceases to be an Australian citizen. It is not discretionary whether the Minister
   has regard to such criteria. This responds to a request of the Senate Standing Committee
   for the Scrutiny of Bills in Scrutiny Digest No. 7 of 2019, dated 16 October 2019 and in
   Scrutiny Digest No. 8 of 2019, dated 13 November 2019.

3. This additional material also clarifies that, case law suggests that the requirement in new
   subsection 36B(1) that the Minister be "satisfied" would be interpreted as requiring such
   satisfaction to be formed reasonably. This responds to recommendation one of the
   Advisory Report prepared by the PJCIS.

4. At the end of paragraph 54 on page 9 of the Explanatory Memorandum, insert:

   The Minister will consult the Minister for Foreign Affairs on international relations
   considerations relevant to individual citizenship loss decisions before determining to
   cease an individual's citizenship under subsection 36B(1).

2

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5. At the end of paragraph 110 on page 19 of the Explanatory Memorandum, insert:

   The Minister will consult the Minister for Foreign Affairs on international relations
   considerations relevant to individual citizenship loss decisions before determining to
   cease an individual's citizenship under subsection 36D(1).

6. The additional material added to paragraphs 54 and 110 is intended to clarify that, as part
   of the Minister's consideration of the public interest criteria relevant to individual
   citizenship cessation determinations, the Minister will undertake consultation with the
   Minister for Foreign Affairs to ensure that international relations issues are appropriately
   considered. This responds to a request of the Senate Standing Committee for the Scrutiny
   of Bills in Scrutiny Digest No. 7 of 2019, dated 16 October 2019 and in Scrutiny Digest
   No. 8 of 2019, dated 13 November 2019.

7. At the end of paragraph 152 on page 26 of the Explanatory Memorandum, insert:

   It is expected that in considering any other matters of public interest the Minister would
   likely have regard to:
         the likely effect of cessation on any dependants of the person;
         the person's connection to Australia; and
         whether the person could be prosecuted for offences under Chapter 8 of the
           Criminal Code.

8. The additional material added to paragraph 152 clarifies that it is expected that, in
   considering any other matters of public interest in relation to subsection 36E(2), the
   Minister would likely have regard to the likely effect of cessation on any dependents of
   the person, the person's connection to Australia, and the possible prosecution of conduct
   that would be captured by Chapter 8 of the Criminal Code. This responds to
   recommendation two of the Advisory Report prepared by the PJCIS.
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