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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP REPUDIATION)
BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Honourable Clare O'Neil MP)
AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP REPUDIATION)
BILL 2023
GENERAL OUTLINE
The legal framework for Australian citizenship is based on an exchange between the State
and the citizen involving reciprocal rights and obligations, namely a 'common bond'.
Certain serious and significant conduct can sever that common bond and, in extreme cases,
represent a repudiation of a person's allegiance to the State. In these cases, a citizenship
cessation regime is required to uphold the integrity of Australian citizenship and represents
the strongest possible response to conduct which constitutes repudiation of a person's
allegiance to Australia.
In 2015, terrorism-related citizenship cessation provisions were enacted in the Australian
Citizenship Act 2007 (Citizenship Act) for the first time, in response to the threat that foreign
terrorist fighters and convicted terrorists presented to Australia and its interests. The
intention of the legislation was to remove from the Australian community--or prevent the
return to Australia from overseas--those dual Australian citizens who had, by their own
intentional actions, engaged in terrorism related-conduct and as such repudiated their
allegiance to Australia.
In 2019, the Independent National Security Legislation Monitor reviewed the operation,
effectiveness and implications of the terrorism-related citizenship cessation provisions
included in the Citizenship Act. The recommendations of this review lead to the citizenship
cessation provisions of the time being repealed and replaced in 2020 by a Ministerial
discretion model, which was part of a suite of measures for the management of persons of
counter-terrorism interest. The 2020 legislation recognised and protected Australia's unity
and cohesion, and noted that behaviour that harms or seeks to harm our community, whether
in Australia or offshore, is in clear opposition to the common bond and shared values that
underpin membership of the Australian community.
Under the 2020 legislation, section 36B allowed the Minister to make a determination that
a dual national's Australian citizenship ceased where certain preconditions were met,
including that the person demonstrated conduct that repudiated their allegiance to Australia,
and that it would not be in the public interest for the person to remain an Australian citizen.
Section 36D allowed the Minister to make a determination that a dual national's Australian
citizenship, in circumstances where:
• the person had been convicted of a specific offence; and
• the person had been sentenced to a period of imprisonment of at least 3 years; and
• the Minister was satisfied the conduct of the person to which the conviction related
demonstrated they had repudiated their allegiance to Australia; and
• it would not be in the public interest for the person to remain and Australian citizen.
Sections 36B and 36D were found invalid by the High Court in Alexander v Minister for
Home Affairs [2022] HCA 19 (Alexander) and Benbrika v Minister for Home Affairs [2023]
HCA 33 (Benbrika) respectively. In invalidating these sections, the High Court held that the
provisions, reposed on the Minister, conferred on the Executive an exclusively judicial
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function of adjudging and punishing criminal guilt. The High Court found the Minister's
power to make a determination of citizenship cessation was retribution or punishment for
past reprehensible conduct. In line with Chapter III of the Constitution, this function can
only be exercised by a court.
The Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 (the Bill)
would amend the Citizenship Act and other Commonwealth Acts to repeal the invalid
provisions and establish a revised citizenship cessation regime that appropriately addresses
the implications of the High Court's judgements in Alexander and Benbrika. The new
regime would enable the Minister to make an application to request that a court exercise its
power to make an order to cease a dual citizen's Australian citizenship, where the person
has been convicted of a serious offence or offences. Under the Bill, the power to make a
citizenship cessation order is vested in the courts and is an appropriate exercise of judicial,
rather than executive, power.
Key features of amendments
Minister may make an application to the court
The Bill provides that the Minister may make an application to a court, enlivening the
court's discretionary power to make a citizenship cessation order in certain circumstances
as part of sentencing on conviction of a person for certain serious offences. The Minister,
as the Minister responsible for national security policy and operations, may make an
application to enliven the court's discretionary power to make a citizenship cessation order
as part of sentencing. The court would be empowered to order that a person ceases to be an
Australian citizen where the person is also a national or citizen of another country, following
a conviction of one or more specified serious offences as an order made as part of sentencing
for the offence or offences, where the court has decided to impose a period (or total periods)
of imprisonment of at least 3 years. The application by the Minister would occur before the
person has been sentenced, ensuring that any citizenship cessation decision would be made
as part of the sentencing decision for the person.
Before making the application, the Minister would also consult the Minister for Foreign
Affairs. This consultation is intended to ensure that the Minister for Home Affairs is
appropriately informed of any potential impacts on Australia's international relations,
before making an application to the court for a citizenship cessation order.
The Bill provides that the Minister's application to the court must include information about
the person's age, Australian citizenship and nationality or citizenship of any other countries.
The information would be necessary to support the court's consideration and decision
whether to make an order ceasing the person's Australian citizenship. The Minister would
be required to give the person written notice of the application as soon as practicable after
the application is made and may give written notice of the application to any other persons
the Minister considers appropriate.
The amendments in the Bill would allow the Minister to make an application to a court for
a citizenship cessation order in particular cases, where the person's conduct in the
commission of a serious offence or offences is so repugnant to Australia's interests and
values that it elicits the strongest possible response, by removing the person's access to the
benefits of Australian citizenship.
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Court may make an order of citizenship cessation
The amendments in the Bill would provide that a court may, as a part of sentencing the
person to such a period or periods of imprisonment, also order at that time that the person
ceases to be an Australian citizen; also order at that time as part of the sentence or sentences
that the person ceases to be an Australian citizen, if:
• a person is convicted of one or more serious offences; and
• the court has decided to impose on the person, in respect of the conviction or
convictions, a period of imprisonment that is at least 3 years or periods of
imprisonment that total at least 3 years; and
• before the court imposes the sentence or sentences on the person in respect of the
conviction or convictions, the Minister makes an application for a citizenship
cessation order in relation to the person; and
• the court is satisfied that the person is aged 14 or over, the person is an Australian
citizen, the person is a national or citizen of another country, and the person's
conduct to which the conviction or convictions relate is so serious and significant
that it demonstrates that the person has repudiated their allegiance to Australia.
Importantly, the court, in exercising its discretion to make an order that a dual national's
Australian citizenship ceases as part of the sentence following conviction of the person for
one or more specified serious offences, must be satisfied that the conduct forming the basis
of a conviction under a relevant offence has the effect of repudiating a person's allegiance
to Australia. This means that the person's conduct must be significant and serious to a degree
high enough that it warrants the strongest possible response in the form of citizenship
cessation.
The amendments in the Bill also provide that a court must not make an order to cease a
person's Australian citizenship if the court were satisfied that the person would become a
person who is not a national or citizen of any country. As such, the court may only cease
the Australian citizenship of individuals who would not be rendered stateless.
The court's decision to make the order must be informed further by its consideration of the
person's connection to their other country of citizenship (and by extension, any residual
connection to Australia), the best interests of the person as a child if the person is under 18,
or if the person has any dependent children in Australia.
Court to be satisfied of certain matters
In assessing whether a citizenship cessation order should be made, the court is to be satisfied
of the following:
• the person is aged 14 or over; and
• the person is an Australian citizen; and
• the person's conduct to which the conviction or convictions relate is so serious and
significant that it demonstrates that the person has repudiated their allegiance to
Australia.
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In deciding whether the court is satisfied that the person's conduct to which the conviction
or convictions relate is so serious and significant that it demonstrates that the person has
repudiated their allegiance to Australia, the court must have regard to the following matters:
• whether the conduct to which the conviction or convictions relate demonstrates a
repudiation of the values, democratic beliefs, rights and liberties that underpin
Australian society;
• the degree, duration or scale of the person's commitment to, or involvement in, the
conduct to which the conviction or convictions relate;
• the intended scale of the conduct to which the conviction or convictions relate;
• the actual impact of the conduct to which the conviction or convictions relate;
• whether the conduct to which the conviction or convictions relate caused, or was
intended to cause, harm to human life or a loss of human life.
This is not intended to limit limiting the other matters to which the court may also have
regard in sentencing, in addition to the five matters mentioned above, to which the court
must have regard in considering whether to make a citizenship cessation order.
Serious offences
The serious offences specified in the amendments, for which a person is convicted and for
which a court may make a determination of citizenship cessation as part of sentencing, are
provided under the Criminal Code:
• 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 Subdivision B of Division 83 of the Criminal Code (advocating
mutiny);
• 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 the following:
- section 102.8;
- Division 104;
- Division 105;
- section 105A.7D;
- section 105A.18B;
• a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment).
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The above offences demonstrate a clear nexus to the repudiation of a citizen's
responsibilities to the State, through the commission of serious and significant offences.
Commission of these offences places Australian interests at risk and, where the actions of
the person are serious and significant, are incompatible with the values of Australian
citizenship.
Repudiation of allegiance
In Alexander, the High Court noted that allegiance is a useful gauge of the existence of the
bonds of citizenship. Section 44(i) of the Constitution itself expressly acknowledges that
allegiance may be an integral aspect of citizenship. In Benbrika, the majority expressly
observed that the case was a 'sequel' to Alexander, given the commonalities between
sections 36B and 36D of the Citizenship Act. Both provisions were found in Subdivision C
of Division 3 of Part 2 of the Citizenship Act. This is reflected in section 36A of the
Citizenship Act, which provides:
'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.'
This provision expressly addresses the individual who, though previously a citizen, has
acted so inimically to Australia's interests as to repudiate the obligations of citizenship on
which membership of the people of the Commonwealth depends. Such conduct voluntarily
undertaken might be so incompatible with the values of the Australian people as to be seen
to be incompatible with continued membership of the Australian body politic, and therefore
be interpreted as repudiating that membership.
Repudiation is characterised by conduct, voluntarily undertaken, that is serious and
significant, such as fighting for, or being in the service of, a declared terrorist organisation,
or serving in the armed forces of a country at war with Australia (referred above in the
description of serious offences).
Safeguards
Enabling the new citizenship cessation order provisions to be exercised by a court of law
affords a clear degree of transparency, accountability and scrutiny of citizenship cessation
matters through judicial proceedings. This also reposes, as appropriate, the punishment of
criminal guilt in the judiciary.
The list of serious offences for which an application could be made would be limited to
offences which have a clear nexus to the repudiation of a citizen's responsibilities to the
State and where the actions of the person are incompatible with the values of Australian
citizenship.
Additionally, the court in deciding whether to make an order must have regard to the best
interests of the child if the person is 18 and if the person has any dependants, the best
interests of those children. The court must also be satisfied the person is aged 14 or over
before it can make an order. These requirements reflect that children require particular
consideration by the court.
Any citizenship cessation order made by a court will be capable of being appealed and
overturned or quashed in the usual judicial process. The Bill requires the Minister to table a
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report in each House of the Parliament each 12-months that sets out the number of
applications the Minister has made to a court for a citizenship cessation order.
The Bill also requires the Independent National Security Legislation Monitor to review the
operation, effectiveness and implications of the amendments as soon as practicable after the
end of the 3-year period of the commencement of the amendments. Following this review,
the Parliamentary Joint Committee on Intelligence and Security may resolve to also consider
the operation, effectiveness and implications of the amendments.
FINANCIAL IMPACT STATEMENT
The amendments in the Bill have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
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.
A statement of compatibility with human rights has been prepared in accordance with Part 3
of the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment A.
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COMMON ABBREVIATIONS AND ACRONYMS
Abbreviation or acronym Meaning
Alexander Alexander v Minister for Home Affairs [2022] HCA 19
Benbrika Benbrika v Minister for Home Affairs [2023] HCA 33
Bill Australian Citizenship Amendment (Citizenship Repudiation)
Bill 2023
Citizenship Act Australian Citizenship Act 2007
Citizenship cessation order An order made by a court under new subsection 36C(1) of the
Citizenship Act
Crimes Act Crimes Act 1914
Criminal Code The Commonwealth Criminal Code in Schedule 1 to the Criminal
Code Act 1995
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AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP REPUDIATION)
BILL 2023
NOTES ON INDIVIDUAL CLAUSES
Section 1 Short title
1. Section 1 provides that the short title of this Bill, once enacted, will be the Australian
Citizenship Amendment (Citizenship Repudiation) Act 2023.
Section 2 Commencement
2. Section 2 provides that the Bill, once enacted, will commence on the day after the Act
receives the Royal Assent.
Section 3 Schedules
3. This section provides that legislation specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned. This section also
provides that any other item in a Schedule to the Act has effect according to its terms.
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SCHEDULE 1 Amendments
Part 1 Amendments
Australian Citizenship Act 2007
Item 1 Section 3
4. This item inserts new defined terms, 'Foreign Affairs Minister' and 'serious offence',
in section 3 of the Citizenship Act.
• The term 'Foreign Affairs Minister' is defined to mean the Minister
administering the Diplomatic Privileges and Immunities Act 1967.
• The term 'serious offence' is defined to have the meaning given by new
subsection 36C(3).
Item 2 Section 32A
5. This item omits the fifth dot point in the existing table under section 32A of the
Citizenship Act, which provides a simplified outline of Division 3 of Part 2 of the
Citizenship Act and provides the five ways in which a person can cease to be an
Australian citizen. The fifth dot point provides that for certain conduct or convictions,
the Minister can make a determination ceasing a person's citizenship if the Minister
is satisfied the person has repudiated their allegiance to Australia and that it would be
contrary to the public interest for the person to remain an Australian citizen.
6. This item substitutes the fifth dot point with the following text: 'if you are convicted
of certain offence or offences and an order is made by a court that you cease to be an
Australian citizen: see Subdivision C (citizenship cessation).'
7. The purpose of this amendment is to reflect the repeal of section 36B referred in item 4
below and clarify that a person may cease to be an Australian citizen where they are
convicted of a certain offence or offences and an order is made by the court that they
cease to be an Australian citizen.
Item 3 Subdivision C of Division 3 of Part 2 (heading)
8. This item omits the reference to 'determinations' from the heading of Subdivision C
of Division 3 of Part 2 of the Citizenship Act, which formerly read 'Subdivision C--
Citizenship cessation determinations'. The heading will now read 'Subdivision C--
Citizenship cessation'.
9. The purpose of this amendment is to remove all references to determinations
consequent on the repeal of subsections former 36B to 36K of the Citizenship Act by
item 4.
Item 4 Sections 36B to 36K
10. This item repeals former sections 36B to 36K of the Citizenship Act and substitutes
new sections 36B, 36C and 36D.
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11. Former section 36B provided a power for the Minister to determine that a dual
Australian citizen's Australian citizenship ceased in certain circumstances where the
Minister was satisfied the person had engaged in certain specified conduct and that
such conduct repudiated their allegiance to Australia.
• In the decision of Alexander, a majority of the High Court found that former
section 36B was invalid. In the view of the High Court, section 36B conferred
on the Executive an exclusively judicial function of adjudging and punishing
criminal guilt (by imposing cessation as retribution or punishment for past
reprehensible conduct) which can only be exercised by a court under Chapter III
of the Constitution.
• The purpose of repealing former section 36B is to facilitate the High Court's
finding as to the validity of former section 36B. The amendments in this Bill
replace former section 36B with provisions, which address the High Court's
finding in Alexander and provide the courts with a determinative role in ceasing
the Australian citizenship of dual nationals where certain conditions are met, and
uphold the integrity of Australian citizenship.
12. Former section 36C provides the meaning of 'declared terrorist organisation'. The
term is being repealed because it is used in former sections 36C and 36K, which are
to be repealed by this item, and is therefore redundant.
13. Former section 36D provides a power for the Minister to determine that a dual
Australian citizen's Australian citizenship ceased in certain circumstances where the
person had been convicted of a specified offence, sentenced to a period of
imprisonment of at least 3 years, the conduct of the person which the conviction relates
demonstrated that the person had repudiated their allegiance to Australia and that it
would not be in the public interest for the person to remain an Australian citizen.
• In the decision of Benbrika, a majority of the High Court found that former
section 36D was invalid because it purported to repose in the Minister the
exclusively judicial function of punishing criminal guilt, contrary to Chapter III
of the Constitution.
• The purpose of repealing former section 36D is to facilitate the High Court's
finding as to the validity of former section 36D. The amendments in this Bill
replace section 36D with provisions, which address the High Court's finding in
Benbrika and provide the courts with a determinative role in ceasing the
Australian citizenship of dual nationals where certain conditions are met, and
uphold the integrity of Australian citizenship.
14. Former section 36E applied when the Minister was considering the public interest for
the purposes of deciding whether to make a determination under former
subsection 36B(1) or 36D(1), or whether to revoke such a determination. As former
sections 36B and 36D are being repealed by this item, section 36E is redundant.
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15. Former section 36F concerned the requirement to give notice, the method of giving
notice and the contents of a notice, in relation to a determination made under former
subsection 36B(1) or 36D(1). As former sections 36B and 36D are being repealed by
this item, section 36F is redundant.
16. Former section 36G provided an exception to the notice requirements in section 36F.
As former section 36F is being repealed by this item, former section 36G is redundant.
17. Former section 36H concerned applications for the revocation of a citizenship
cessation determination made under former subsection 36B(1) or 36D(1). As former
sections 36B and 36D are being repealed by this item, section 36H is redundant.
18. Former section 36J concerned the revocation of a citizenship cessation determination
made under former 36B(1) or 36D(1) on the Minister's own initiative. As former
sections 36B and 36D are being repealed by this item, former section 36J is redundant.
19. Former section 36K concerned the automatic revocation of a citizenship cessation
determination made under former subsection 36B(1) or 36D(1). As former
sections 36B and 36D are being repealed by this item, former section 36K is
redundant.
New section 36B
20. New subsection 36B(1) provides that if a citizenship cessation order is made in
relation to a person, the person ceases to be an Australian citizen at the time the order
is made. This provides clarity as to the timing of the effect of the cessation of the
person's citizenship.
21. New subsection 36B(2) provides that a person's citizenship is taken never to have
ceased under this section because of an order made under new subsection 36C(1) in
circumstances where a decision of a court overturns or quashes the order. This clarifies
that the powers of the court to overturn or quash a citizenship cessation order are not
otherwise constrained by the amendments.
22. New subsection 36B(3) provides that the validity of anything done in reliance on the
order referred to subsection (1) before the order was overturned or quashed is not
affected.
Appeal decision
23. New subsection 36B(4) provides if a decision of a court overturning or quashing the
citizenship cessation order is appealed and the decision on appeal overturns or quashes
the first decision, the person ceases to be an Australian citizen at the time the second
decision is made.
New section 36C
24. New section 36C enables a court to make a citizenship cessation order, at the court's
discretion, where a person is convicted of one or more 'serious offences' and where
certain preconditions are met. New section 36C sets out the requirements that must be
met, and the matters the court must be satisfied of and the matters to which the court
must have regard in exercising its discretion to make such an order.
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25. New subsection 36C(1) provides the conditions that must be met before the court may,
when imposing the period or periods of imprisonment on the person in respect of the
conviction or convictions, also order at that time as part of the sentence or sentences
that the person ceases to be an Australian citizen. The conditions are set out in
paragraphs (a)-(d) and require that:
• the person is convicted of one or more 'serious offences' (new
paragraph 36C(1)(a)); and
• the court has decided to impose on the person, in respect of the conviction or
convictions, a period of imprisonment that is at least 3 years or periods of
imprisonment that total at least 3 years (new paragraph 36C(1)(b)); and
• the Minister has made an application under new subsection 36D(1) for an order
to be made under new subsection 36C(1) in relation to the person before the court
imposes the sentence or sentences on the person in respect of the conviction or
convictions (new paragraph 36C(1)(c)); and
• the court is satisfied of the matters set out in new subsection 36C(4) (new
paragraph 36(1)(d)).
26. New paragraph 36C(1)(b), which requires a period of imprisonment of three years for
a citizenship cessation order to be made, reflects the seriousness and significance of
offences to which citizenship cessation would apply to. Extending the new measures
to sentences of a term of imprisonment of at least three years is necessary to ensure
the safety of the Australian community, and ensure people who have repudiated their
allegiance to Australia through their actions no longer remain part of the Australian
community.
27. The note at the end of subsection 36C(1) directs readers to the matters the court must
have regard to if it decides to exercise its discretion to make an order that a person's
Australian citizenship has ceased. These matters are set out in new subsections 36C(5)
and (6).
28. New subsection 36C(2) provides that court must not make an order under new
subsection 36C(1) in relation to a person if the court is satisfied that the person would,
if the court were to make the order, become a person who is not a national or citizen
of any country.
29. The purpose of this section is to provide that the court should not be empowered to
make an order ceasing a person's Australian citizenship without an application being
sought by the Executive, through the Minister's application. In certain circumstances,
cessation of a person's Australian citizenship may not be the preferred outcome,
having regard to Australia's bilateral relationships, international relations more
broadly, or national security interests. A Ministerial application model, such as that
provided for by the Bill, ensures that citizenship cessation remains narrow in scope,
with Australia's international obligations considered prior to a prospective order being
made by the court.
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Serious offence
30. New subsection 36C(3) provides the meaning of a 'serious offence'. The subsection
specifies that a 'serious offence' is an offence against any of the following provisions:
• a provision of Subdivision A of Division 72 of the Criminal Code (explosives
and lethal devices) (new paragraph 36C(3)(a));
• a provision of Subdivision B of Division 80 of the Criminal Code (treason) (new
paragraph 36C(3)(b));
• a provision of Subdivision B of Division 83 of the Criminal Code (advocating
mutiny) (new paragraph 36C(3)(c));
• a provision of Division 91 of the Criminal Code (espionage) (new paragraph
36C(3)(d));
• a provision of Division 92 of the Criminal Code (foreign interference) (new
paragraph 36C(3)(e));
• a provision of Part 5.3 of the Criminal Code (terrorism), other than other than
the following (per new paragraph 36C(3)(f)):
- section 102.8;
- Division 104;
- Division 105;
- section 105A.7D;
- section 105A.18B;
• a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment)
(new paragraph 36C(3)(g)).
31. The offences specified above reflect the policy intention that the commission of these
offences has a clear nexus to the repudiation of a citizen's responsibilities to the State,
as they place Australian interests at risk and, in extreme cases, demonstrate that the
person's actions are incompatible with the values of Australian citizenship.
Court to be satisfied of certain matters etc.
32. New paragraphs 36C(4)(a)-(c) set out the matters the court must be satisfied of under
new paragraph 36C(1)(d). The court must be satisfied of these matters in exercising
its discretion to make a citizenship cessation order, in addition to sentencing the
person to such a period or periods of imprisonment in respect of the conviction or
convictions (and where other conditions referred in new subsection 36C(1) are met).
The matters, which are set out in paragraphs 36C(4)(a)-(c), are:
• the person is aged 14 or over (new paragraph 36C(4)(a));
• the person is an Australian citizen (new paragraph 36C(4)(b));
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• the person's conduct to which the conviction or convictions relate is so serious
and significant that it demonstrates that the person has repudiated their allegiance
to Australia (new paragraph 36C(4)(c)).
33. New subsection 36C(5) provides that the court must have regard to specified matters
in deciding whether the court is satisfied of the matter referred to in new paragraph
36C(4)(c) in relation to the person's conduct. The specified matters, which are set out
in paragraphs (a)-(e), are:
• whether the conduct to which the conviction or convictions relate demonstrates
a repudiation of the values, democratic beliefs, rights and liberties that underpin
Australian society (new paragraph 36C(5)(a));
• the degree, duration or scale of the person's commitment to, or involvement in,
the conduct to which the conviction or convictions relate (new
paragraph 36C(5)(b));
• the intended scale of the conduct to which the conviction or convictions relate
(new paragraph 36C(5)(c));
• the actual impact of the conduct to which the conviction or convictions relate
(new paragraph 36C(5)(d));
• whether the conduct to which the conviction or convictions relate caused, or was
intended to cause, harm to human life or a loss of human life (new paragraph
36C(5)(e)).
34. It is the intention that when considering whether the person has engaged in conduct
that demonstrates they have repudiated their allegiance to Australia, the factors the
court must consider would be a non-exhaustive list and the court may have regard to
other matters relevant to the circumstances of the case including any mitigating
factors.
35. In considering whether a person has demonstrated a repudiation of the values,
democratic beliefs, rights and liberties that underpin Australian society the court may
consider the responsibilities of an Australian citizen which are broadly but succinctly
captured in the Australian Citizenship Pledge at Schedule 1 to the Citizenship Act:
" ... I pledge my loyalty to Australia and its people; whose democratic
beliefs I share, whose rights and liberties I respect, and whose laws I will
uphold and obey".
36. It is the intention that the degree, duration or scale of the person's commitment to or
involvement in the conduct are considerations bearing upon the objective gravity of
the person's conduct. This factor envisages that the court may consider applying
different weight to an individual's circumstances and context of their involvement in
or support of the relevant conduct - for example, looking beyond a person's
membership in a terrorist organisation to their seniority in that organisation, or the
role that the person played in coordinating or orchestrating the particular conduct.
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37. It is the intention that the intended scale of the conduct includes circumstances where
the relevant conduct was either partly or wholly disrupted through successful law
enforcement and other intervention, and therefore the intended outcome is a defining
feature, rather than the actual outcome. This factor may also be a relevant
consideration in circumstances where the actual impact surpasses the intended impact
(such as where the intention was to cause damage to property or critical infrastructure,
but eventuated in loss of human life).
38. It is the intention that the actual impact of the conduct is considered to be a relevant
factor, and demonstrative of conduct that signifies the person is opposed to Australia,
or to Australia's interests, values, democratic beliefs, rights or liberties.
39. It is the intention that the duration of the sentence of imprisonment to be imposed
treats the sentence concurrently being imposed for the specific conduct as a proxy for
the seriousness of the conduct. A sentence that is towards the outer limit of the
maximum sentence indicates of the seriousness of the conduct.
40. New subsection 36C(6) provides that the court must have regard to specified matters
in deciding whether to make a citizenship cessation order in relation to the person.
The specified matters, which are set out in paragraphs (a)-(c), are:
• if the person is a child aged under 18 years old--the best interests of the child
(new paragraph 36C(6)(a));
• if the person has any dependent children in Australia--the best interests of those
children (new paragraph 36C(6)(b));
• 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 (new paragraph 36C(6)(c)).
41. New subsection 36C(7) provides that new subsection 36C(6) does not limit the matters
to which the court may have regard in deciding whether to make a citizenship
cessation order in relation to the person.
42. The inclusion of these matters reflects appropriate safeguards in terms of human rights
and compliance with Australia's international obligations, and ensures these
safeguards apply to the exercise of the court's discretion.
Concurrent sentences
43. New subsection 36C(8) provides that if a person has been convicted of 2 or more
serious offences and the court has decided to impose on the person, in respect of the
conviction or convictions, 2 or more periods of imprisonment to be served
concurrently (whether in whole or in part), then, for the purposes of new
subsection 36C(1), the whole of each period is to be counted in working out the total
of those periods.
16
44. An example has been inserted under new subsection 36C(8) which provides clarity on
concurrent sentences. The example provides, if a person is convicted of 2 serious
offences and a court has decided to impose on the person in respect of the convictions
2 periods of 2 years imprisonment to be served concurrently. For the purposes of new
subsection 36C(1), the total period of imprisonment is 4 years.
References to period of imprisonment
45. New subsection 36C(9) set out matters in relation to sentencing for the purposes of
new subsection 36C(1).
46. New paragraph 36C(9)(a) provides that, for the purposes of new subsection 36C(1), a
reference to a period of imprisonment in that subsection does not include a period of
imprisonment that is suspended. This demonstrates that the conduct which formed the
basis of the conviction or convictions under new subsection 36C(1) must be abhorrent
enough to attract a custodial sentence (of a minimum term of 3 years) in order to be
capable of constituting a repudiation of a person's allegiance to Australia through its
seriousness and significance.
47. New paragraph 36C(9)(b) provides that, for the purposes of new subsection 36C(1), a
reference to a period of imprisonment in that subsection includes a single sentence of
imprisonment imposed in respect of both one or more 'serious offences' and one or
more other offences.
Other matters
48. New subsection 36C(10) clarifies that new section 36C applies in relation to a person
who is an Australian citizen regardless of how the person became an Australian citizen
(including a person who became an Australian citizen upon the person's birth). This
is included to capture all pathways by which a person acquires Australian citizenship,
including naturalisation (noting that the relevant person must also be a national or a
citizen of another country).
49. New subsection 36C(11) provides that Part IB of the Crimes Act, which deals with
sentencing, imprisonment and release of federal offenders, does not apply in relation
to an made by the court order under this section.
New section 36D
50. New subsection 36D(1) provides that the Minister may make an application for a
citizenship cessation in relation to a person. This subsection enables the Minister to
make an application to the court to enliven the court's power to make a citizenship
cessation order, in respect of a person who has been convicted of the 'serious
offences', prior to sentencing.
51. New subsection 36D(2) provides that the application may be made before or after the
person is convicted of one or more 'serious offences' but must be made before the
person is sentenced.
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Consultation with the Foreign Affairs Minister
52. New subsection 36D(3) provides that, before the Minister makes an application under
new subsection 36D(1), the Minister must consult the Foreign Affairs Minister.
53. This subsection ensures that Australia's bilateral relationships and international
relations more broadly are considered ahead of a citizenship cessation application
being made by the Minister. In certain circumstances, cessation of a person's
Australian citizenship may not be the preferred outcome.
Matters relating to the application
54. New subsection 36D(4) provides that the application under new subsection 36D(1)
must include specified matters. The specified matters, which are set out in paragraphs
(a)-(c), are:
• information about the person's age (new paragraph 36D(4)(a));
• information about the person's Australian citizenship (new
paragraph 36D(4)(b));
• information about the person's nationality or citizenship of other countries (new
paragraph 36D(4)(c)).
55. This subsection ensures that the Minister is provided with an opportunity to put before
the court that the person is a national or citizen or another country, as well as Australia,
and therefore in scope of the court's power to order citizenship cessation on conviction
for one or more 'serious offences'. In the absence of such a mechanism, it is possible
that the court may have no knowledge of or evidence pertaining to other citizenships
held by the person, unless this has otherwise been adduced in the criminal
proceedings.
56. New subsection 36D(5) specifies certain conditions in relation to the application under
new subsection 36D(1). The conditions, which are set out in paragraphs (a)-(c), are:
• the application must be made in the jury's absence (new paragraph 36D(5)(a));
and
• the application must not be referred to in the presence of the jury new
paragraph 36D(5)(b)); and
• the application must only be heard after the person is convicted of one or more
'serious offences' (new paragraph 36D(5)(c)).
57. New subsection 36D(5) ensures that a jury is not aware of, and therefore cannot take
into account, the potential outcome of the application, namely that the person ceases
to be an Australian citizen, when delivering a verdict.
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Notice of application
58. New subsection 36D(6) provides that the Minister must give the person written notice
of the application under new subsection 36D(1) as soon as practicable after the
application is made. The Minister may also give written notice of the application to
such other persons as the Minister considers appropriate.
59. New subsection 36D(7) provides that section 47 (notification of decisions) of the
Citizenship Act does not apply to a decision of the Minister to make an application
under new subsection 36D(1).
Australian citizens to which this section applies
60. New subsection 36D(8) provides that new section 36D applies in relation to a person
who is an Australian citizen regardless of how the person became an Australian citizen
(including a person who became an Australian citizen upon the person's birth). This
is included to capture all pathways by which a person acquires Australian citizenship,
including naturalisation (noting that the relevant person must also be a national or a
citizen of another country).
Item 5 Section 36L (note)
61. Section 36L of the Citizenship Act provides that if a person ceases to be an Australian
citizen under Subdivision C of Division 3 of Part 2, then Divisions 1 and 2 of Part 2
do not apply in relation to the person after that cessation. The former note under
section 36L provides that the effect of section 36L is that, unless a determination under
former section 36B or 36D is revoked (see former sections 36H, 36J and 36K), the
person can never become an Australian citizen again.
62. This item repeals the note under section 36L and substitutes a new note, which directs
the reader to new section 36B for when a person ceases to be an Australian citizen.
63. The new note clarifies that unless a citizenship cessation order is overturned or
quashed by a court, the person can never become an Australian citizen again. The
purpose of this amendment is to reflect the repeal of former sections 36B and 36D.
Item 6 Subsection 48(5A)
64. Section 48 of the Citizenship Act provides for computerised decision-making under
the Act. Subsection 48(5A) provides for exceptions to this section: 'This section does
not apply in relation to anything done under Subdivision C of Division 3 of Part 2
(citizenship cessation determinations).'
65. This item omits the word 'determinations' from subsection 48(5A). This amendment
is consequential to the amendment to the heading of Subdivision C of Division 3 of
Part 2 made by item 3 above.
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Item 7 Subsection 51B(1)
66. Section 51B of the Citizenship Act concerns the provision of reports to Parliament in
certain circumstances. 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
that sets out specified information regarding notices given under paragraph 36F(1)(a)
and subsection 36H(4) in the reporting period.
67. This item repeals subsection 51B(1) and the Citizenship Act and substitutes a new
subsection consequent on the repeal of former sections 36F and 36H by item 4 above.
68. The 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 that sets out
the number of applications made, during the reporting period, under new section 36D,
that relate to persons who have been convicted and sentenced for one or more 'serious
offences'.
Item 8 Section 51B(3)
69. Section 51B of the Citizenship Act concerns the provision of reports to Parliament in
certain circumstances. Subsection 51B(3) contains the definition for 'reporting period'
for the purposes of subsection 51B.
70. This item repeals subsection 51B(3) and substitutes a new subsection.
71. The subsection 51B(3) provides that, for the purposes of section 51B, 'reporting
period' means: the period of 12 months beginning on the day the Australian
Citizenship Amendment (Citizenship Repudiation) Act 2023 commences; and each
subsequent 12 month period.
72. This subsection operates to ensure the appropriate level of oversight, transparency and
accountability of the citizenship cessation scheme.
Item 9 Section 51C
73. Section 51C of the Citizenship Act concerns the briefing of Parliamentary Joint
Committee on Intelligence and Security in certain circumstances.
74. This item repeals section 51C because it is no longer necessary for parliamentary
oversight of this nature where the Minister will no longer be making a determination
to cease a person's citizenship.
Item 10 At the end of subsection 53(2)
75. Subsection 53(1) of the Citizenship Act provides that the Minister may, by writing,
delegate to any person all or any of the Minister's functions or powers under the Act
or the regulations. However, subsection 53(2) provides that subsection (1) does not
apply in relation to the function under subsection 23A(1) (about approval of
citizenship test).
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76. This item adds the words 'or the power under section 36D (about application for
citizenship cessation order)' to the end of subsection 53(2).
77. The purpose of this amendment is to include under subsection 53(2) that the Minister's
power to delegate any of the Minister's powers or functions under the Act or
regulations does not apply in relation to new section 36D. The effect of this
amendment is that the Minister's power to make an application for a citizenship
cessation order cannot be delegated to any other person.
Independent National Security Legislation Monitor Act 2010
Item 11 Section 4 (paragraph (aa) of the definition of counter-terrorism and national
security legislation)
78. Section 4 of the Independent National Security Legislation Monitor Act 2010 contains
definitions for that Act. Paragraph (aa) of the definition of 'counter- terrorism and
national security legislation' in that section refers to 'Subdivision C of Division 3 of
Part 2 of the Australian Citizenship Act 2007 (citizenship cessation determinations)
and any other provision of that Act as far as it relates to that Subdivision'.
79. This item omits the word 'determinations' from paragraph (aa) of the definition of
'counter- terrorism and national security legislation' in section 4. This amendment is
consequential to the amendment to the heading of Subdivision C of Division 3 of
Part 2 of the Citizenship Act made by item 3 above.
Item 12 Paragraph 6(1)(bb)
80. Section 6 of the Independent National Security Legislation Monitor Act 2010 sets out
the functions of the Independent National Security Legislation Monitor. Those
functions include, at paragraph (1)(bb), to report on reviews completed under
subsections 6(1B) and (1C).
81. This item omits the words 'and (1C)' from paragraph 6(1)(bb) and substitutes the
words ', (1C) and (1F)'. This amendment is consequential to the insertion of new
subsection 6(1F) by item 14.
Item 13 Paragraph 6(1)(f)
82. Section 6 of the Independent National Security Legislation Monitor Act 2010 sets out
the functions of the Independent National Security Legislation Monitor. Those
functions include, at paragraph (1)(f), the function conferred by subsection (1E).
83. This item repeals paragraph 6(1)(f) and substitutes a new paragraph (f), which
provides 'the functions conferred by subsections (1E) and (1F)'. This amendment is
consequential to the insertion of new subsection 6(1F) by item 14.
Item 14 After subsection 6(1E)
84. This item inserts new subsection 6(1F) into the Independent National Security
Legislation Monitor Act 2010, which provides that the Independent National Security
Legislation Monitor must do all of the following:
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• review the operation, effectiveness and implications of Subdivision C of
Division 3 of Part 2 of the Citizenship Act, as amended by Schedule 1 to this
Bill, once enacted, and any other provision of the Citizenship Act so far as it
relates to that Subdivision (new subsection 6(1F)(a)); and
• complete the review as soon as practicable after the end of the 3 year period
beginning on the day the amendments of that Subdivision commence (new
subsection 6(1F)(b)).
85. This subsection operates to ensure the appropriate level of scrutiny and oversight of
the citizenship cessation scheme.
Item 15 Subsection 29B(1)
86. Section 29B of the Independent National Security Legislation Monitor Act 2010 sets
out the obligations of the Independent National Security Legislation Monitor
(INSLM) and the Attorney-General in relation to statutory review reports. Those
functions include, at paragraph (1)(bb), to report on reviews completed under
subsections 6(1B) and (1C) of the Independent National Security Legislation Monitor.
Those functions include, at paragraph (1)(bb), to report on reviews completed under
subsections 6(1B) and (1C).
87. This item omits the words 'and (1C)' from subsection 29B(1) and substitutes the
words ', (1C) and (1F)' consequent on the insertion of new subsection 6(1F) by
item 14.
88. This provision would have the effect of ensuring the requirements of section 29B of
the Independent National Security Legislation Monitor Act 2010, which include
tabling of this review in Parliament, to apply to new subsection 6(1F). This ensures
an appropriate level of transparency for the INSLM's review of Subdivision C of
Division 3 of Part 2 of the Citizenship Act, as amended by Schedule 1 to this Bill, and
any other provision of the Citizenship Act so far as it relates to that Subdivision.
Intelligence Services Act 2001
Item 16 Paragraph 29(1)(ca)
89. Section 29 of the Intelligence Services Act 2001 sets out the functions of the
Parliamentary Joint Committee on Intelligence and Security. Those functions include,
at paragraph (1)(ca), to commence, by the third anniversary of the day the Australian
Citizenship Amendment (Citizenship Cessation) Act 2020 commenced, a review of the
operation, effectiveness and implications of Subdivision C of Division 3 of Part 2 of
the Citizenship Act and any other provision of that Act as far as it relates to that
Subdivision.
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90. This item inserts new paragraph 29(1)(cb), which provides that, if the Parliamentary
Joint Committee on Intelligence and Security resolves to do so, the functions of the
Committee are to commence a review, after the Independent National Security
Legislation Monitor completes the review under subsection 6(1F) of the Independent
National Security Legislation Monitor Act 2010, into the operation, effectiveness and
implications of Subdivision C of Division 3 of Part 2 of the Citizenship Act and any
other provision of that Act as far as it relates to that Subdivision.
91. This builds in another mechanism to enable close scrutiny of the application of
citizenship cessation order provisions, ensuring transparency and accountability.
Surveillance Devices Act 2004
Item 17 At the end of paragraph 45(5)(ia)
92. This item adds a consequential reference to new section 36C of the Citizenship Act to
the end of paragraph 45(5)(ia) of the Surveillance Devices Act 2004, which provides
that protected information may be used, recorded, communicated or published, or may
be admitted in evidence, if it is necessary to do so for the purposes of the performance
of a function or duty, or the exercise of a power, by a person, court or other body
under, or in relation to a matter under specified circumstances.
93. This ensures that protected information for the purposes of the Surveillance Devices
Act 2004 is able to be adduced in evidence during proceedings under new section 36C
of the Citizenship Act, and support the court in the making of decisions in relation to
citizenship cessation.
Part 2 Application provision
Item 18 Application provision
94. This item provides that new section 36C of the Citizenship Act, as inserted by this
Schedule, applies in relation to a conviction of a person if both of the following apply:
• the conviction occurs after the commencement of this item; and
• the person engaged in the conduct to which the conviction relates on or after
12 December 2015.
95. This application provision operates so that the discretionary power of the court under
new section 36C--to make an order that a person ceases to be an Australian citizen,
as part of the sentence following conviction for a specified serious offence--is only
available in relation to a conviction that occurs after the Amendment Act commences,
and only for conduct engaged in by the person on or after 12 December 2015.
96. This application provision makes clear that new section 36C is not retrospective,
insofar as the power is only available to the court in relation to a conviction that occurs
after this Bill, once enacted, commences. It does, however, cover conduct constituting
the offence where the conduct occurs at any time on or after (but not before)
12 December 2015.
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97. This date aligns with the commencement of the Australian Citizenship Amendment
(Allegiance to Australia) Act 2015. That Act commenced on 12 December 2015,
amending the Citizenship Act to establish powers for the cessation of Australian
citizenship in specified circumstances where a dual Australian citizen repudiates their
allegiance to Australia by engaging in terrorism-related conduct.
98. It is appropriate for the court's discretionary power in new subsection 36C(1) to be
available in relation to conduct of the kind covered by the 'serious offences' set out
in new subsection 36C(3), where the person has engaged in that conduct at any time
since the first 'operation of law' citizenship framework for terrorism and other serious
conduct and offences was established on 12 December 2015.
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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 Repudiation) Bill 2023
This 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
The Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 (the Bill) would
repeal section 36B of the Australian Citizenship Act 2007 (the Act), where the Minister for
Home Affairs (the Minister) made a determination to cease a dual citizen's Australian
citizenship where they engaged in certain specified conduct, and it was contrary to the public
interest for that person to remain a citizen.
The Bill also repeals section 36D of the Act, which allowed the Minister to make a
determination that a dual national's Australian citizenship ceased, including in
circumstances where the person had been convicted of a serious offence, sentenced to a
period of imprisonment of at least 3 years, and the conduct of the person which the
conviction related to demonstrated that the person had repudiated their allegiance to
Australia and that it would not be in the public interest for the person to remain an Australian
citizen.
In the decision of Alexander v Minister for Home Affairs [2022] HCA 19 (Alexander), a
majority of the High Court held that section 36B was invalid. In the view of the High Court,
section 36B, by allowing the Minister to make a determination of citizenship cessation in
relation to a person, conferred on the Executive the exclusively judicial function of
adjudging and punishing criminal guilt (by imposing cessation as retribution or punishment
for past reprehensible conduct). The High Court held this function can only be exercised by
a court under Chapter III of the Constitution.
In Benbrika v. Minister for Home Affairs & Anor [2023] HCA 33 (Benbrika), the High Court
held that section 36D of the Act was invalid on the basis that it infringes Chapter III of the
Constitution because it reposes the exclusively judicial function of punishing criminal guilt
in the Minister. Section 36D empowered the Minister to determine that a person ceases to
be an Australian citizen, amongst other circumstances, if that person has been convicted and
sentenced to a specified period of imprisonment in relation to one or more serious offences,
and the Minister was satisfied that it would be contrary to the public interest for the person
to remain an Australian citizen. The provisions specified in subsection 36D(5) included
terrorism offences under Part 5.3 of the Criminal Code (Cth), and other serious offences
related to explosives and lethal devices, treason, sabotage, espionage, foreign interference
and foreign incursions and recruitment. A determination under section 36D could be made
in relation to certain convictions occurring before the subsection commenced.
25
The Bill amends the Act and other Commonwealth Acts to establish a revised citizenship
cessation regime that appropriately addresses the implications of the High Court's
judgments in Alexander and Benbrika. It does this by enabling the Minister to make an
application to a court to request that the court exercise its power to make an order to cease
a dual citizen's Australian citizenship where a person has been charged and convicted under
a specified Commonwealth offence or offences. This ensures that the power to make a
citizenship cessation order is vested in the courts and is an appropriate exercise of judicial,
rather than executive, power.
The Bill would amend the Act to provide that the court is to be satisfied of the following
matters before making a citizenship cessation order:
• the person is aged 14 years or over;
• the person is an Australian citizen;
• the person's conduct to which the conviction or convictions relate is so serious and
significant that it demonstrates that the person has repudiated their allegiance to
Australia.
In deciding whether the court is satisfied a person's conduct is so serious and significant
that it demonstrates they have repudiated their allegiance to Australia, the court must have
regard to the following matters:
• whether the person has engaged in conduct that demonstrates a repudiation of the
values, democratic beliefs, rights and liberties which underpin Australian society;
• the degree, duration or scale of the person's commitment to, or involvement in, the
conduct constituting to which the offence relates;
• the intended scale of the conduct to which the conviction relates;
• the actual impact of the conduct to which the conviction relates;
• whether the conduct caused, or was intended to cause, harm to human life or a loss
of human life.
A court must not make a citizenship cessation order if the court is satisfied that the person
would become stateless, that is a person who is not a national or citizen of any country.
The intention of the legislation is that the Minister will only make an application to a court
for a citizenship cessation order in particular cases involving conduct in the commission of
serious offences that is so repugnant to Australia's interests and values that it elicits the
strongest possible response. That is, removing the person's access to the benefits of
Australian citizenship.
The serious offences for which a person is convicted and for which a court may make a
determination of citizenship cessation are provided under the Criminal Code:
• 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);
• section 83.1 of the Criminal Code (advocating mutiny);
• a provision of Division 91 of the Criminal Code (espionage);
• a provision of Division 92 of the Criminal Code (foreign interference);
26
• a provision of Part 5.3 of the Criminal Code (terrorism), other than other than the
following (per new paragraph 36C(3)(f)):
- section 102.8;
- Division 104;
- Division 105;
- section 105A.7D;
- section 105A.18B;
• a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment).
The above offences have a clear nexus to the repudiation of a citizen's responsibilities to
the State. Commission of these offences places Australian interests at risk and, where the
actions of the person are serious and significant, they are incompatible with the values of
Australian citizenship.
In Alexander, the High Court noted that allegiance is a useful gauge of the existence of the
bonds of citizenship. Section 44(i) of the Constitution itself expressly acknowledges that
allegiance may be an integral aspect of citizenship. This is reflected in section 36A of the
Act, which provides: "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."
Section 36A expressly addresses the individual who has acted so inimically to Australia's
interests as to repudiate the obligations of citizenship on which membership of the people
of the Commonwealth depends. Such conduct voluntarily undertaken might be so
incompatible with the values of the Australian people as to be seen to be incompatible with
continued membership of the Australian body politic, and therefore be interpreted as
repudiating that membership.
Repudiation is characterised by conduct, voluntarily undertaken, that is serious and
significant, such as fighting for, or being in the service of, a declared terrorist organisation,
or serving in the armed forces of a country at war with Australia.
The Bill would amend the act to provide that a court may, in addition to sentencing a person
who has been convicted of offences specified in the amendments, order that their Australian
citizenship is to cease, if:
• a person is convicted of a serious offence, or serious offences; and
• the court has decided to impose on the person, in respect of the conviction or
convictions, a period of imprisonment that is at least 3 years or periods of
imprisonment that total at least 3 years; and
• before the court imposes the sentence or sentences on the person in respect of the
conviction or convictions, the Minister makes an application for an order to be made
in relation to the person before the court; and
• the court is satisfied that the person is aged 14 years or older, the person is an
Australian citizen and the person's conduct to which the conviction or convictions
relate is so serious and significant that it demonstrates that the person has repudiated
their allegiance to Australia.
27
Importantly, the court, in exercising its discretion to make an order that a dual national's
Australian citizenship should cease, must be satisfied that the conduct forming the basis of
a conviction under a relevant offence has the effect of repudiating a person's allegiance to
Australia. This means that the person's conduct must be significant and serious to a degree
high enough that it warrants the strongest possible response in the form of citizenship
cessation.
The court's decision to make the order must be informed further by its consideration of the
person's connection to their other country of citizenship (and by extension, any residual
connection to Australia), if the person is a child aged under 18, the best interests of the child
, or if the person has any dependent children in Australia, the best interests of those children.
The court may also have regard to any other matter which it considers relevant to the
exercise of its discretion.
The cessation provisions apply regardless of how the person became an Australian citizen:
that is, whether by operation of law from birth or by application. However the court must
not make a determination, nor shall the Minister apply to the court, unless satisfied that the
person would not become a person who is not a national or citizen of a country other than
Australia.
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 (Migration Act)). The ex-citizen
visa is a permanent visa allowing the holder to remain in, but not 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 a Resident Return visa. In both cases, the person may fail the
character test which would mean that the visa they hold could be cancelled or an application
for another visa could be refused in the exercise of powers under the Migration Act.
Depending on the circumstances, this may mean that the person becomes liable for removal
from Australia under the Migration Act (and immigration detention pending removal) or
will be unable to re-enter Australia if they are outside Australia.
The Bill would amend the Act to include appropriate safeguards, including automatic
reinstatement of citizenship in certain circumstances, and independent and parliamentary
review of the new provisions within an appropriate period of time.
As any citizenship cessation order will be imposed by the court as part of sentencing, that
order will be subject to review or appeal by a higher court as in the ordinary course. Further,
new section 36B(2) would provide that if an order made under new section 36C(1) is
overturned or quashed, and the time for appealing or applying for leave to appeal has expired
without an appeal or application being lodged, or the decision is not appealable, then the
person's citizenship is taken never to have ceased.
Human rights implications
This Bill engages the following rights:
• Non-discrimination and equality before the law in Article 2(1), and 26 of the
International Covenant on Civil and Political Rights (ICCPR);
• Non-refoulement in Articles 6 and 7 of the ICCPR and Article 3 of the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT);
28
• Right to liberty and the prohibition on arbitrary detention in Article 9 of the ICCPR;
• Freedom of movement and choice of residence in Article 12(1) of the ICCPR;
• Right to enter one's own country in Article 12(4) of the ICCPR;
• Expulsion of aliens in Article 13 of the ICCPR;
• Equality before the courts and tribunals in Article 14 of the ICCPR;
• Protection from retrospectivity of criminal offences in Article 15(1) of the ICCPR;
• Rights relating to the family unit in Articles 17 and 23 of the ICCPR;
• Consideration of best interests of the child in Article 3 of the Convention on the
Rights of the Child (CRC).
Right to non-discrimination and equality before the law in Articles 2 and 26 of the
ICCPR
Article 2(1) of the ICCPR states:
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.
Article 26 of the ICCPR states:
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In the 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.
Articles 2(1) and 26 require a person to enjoy equality before the law or equal protection of
the law with others, without discrimination on the basis of a prohibited ground. The
amendments operate on the basis of a conviction or convictions for serious criminal offences
and apply only to dual-nationals, and this may amount to a differentiation on the basis of
'national origin' and 'other status'.
Furthermore, the amendments differentiate on the basis that they only operate where the
court is satisfied of a number of factors, including that the person is a national or citizen of
at least one other country, which prevents the person becoming stateless. This is consistent
with Australia's obligation under the 1961 Convention on the Reduction of Statelessness not
to render an individual stateless, such that the court may only cease the Australian
citizenship of individuals who would not be rendered stateless.
As observed by the United Nations 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. The measures are necessary to address the risks posed by
individuals convicted of serious offences that demonstrate that a person has repudiated their
allegiance to Australia.
29
Considering the seriousness of offences to which citizenship cessation applies and the
requirement that the individual's actions demonstrate they have repudiated their allegiance
to Australia, it is reasonable and necessary to cease a dual citizen's Australian citizenship
in the circumstances outlined in the Bill. The measures only discriminate against dual
citizens to the extent that the Government is prevented from seeking the cessation of
citizenship in circumstances that would leave a person without a nationality. Specifically,
under subsection 36C(2), the court is prevented from making a citizenship cessation order
if the court is satisfied that the person would, if the court made the order, become a person
who is not a national or a citizen of any country. This is to ensure that the measures do not
leave an individual without a citizenship, they just remove the benefit of Australian
citizenship from persons in circumstances where the person has repudiated their allegiance
to Australia by their conduct and pose a risk to the Australian community of committing
further serious offences that threaten to cause high levels of fear and harm and which create
division within the community and limit the rights and freedoms of others, but they would
continue to have the protection of another nationality.
A key threshold which ensures that the measures are proportionate is that the person has
been convicted of a serious offence within the meaning of subsection 36C(3). These are
offences considered to be so egregious that they demonstrate a repudiation of the person's
allegiance to Australia. The provisions only operate in circumstances where the person has
been convicted of one of those offences and the court is considering sentencing the person
to a term of imprisonment of at least 3 years.
To the extent that the measures discriminate against persons on the basis of 'national origin'
and 'other status', any discrimination is reasonable, necessary and proportionate in
achieving the legitimate purpose of protecting the Australian community while acting
consistently with Australia's obligations under the 1961 Convention on the Reduction of
Statelessness.
Non-refoulement in Articles 6 and 7 of the ICCPR and Article 3 of the CAT
The measures in the Bill indirectly engage Australia's non-refoulement obligations.
Article 6(1) of the ICCPR provides:
(1) Every human being has the inherent right to life. This right shall be protected by
law. No one shall be arbitrarily deprived of his life.
Article 7 of the ICCPR provides:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.
Further, Australia has an express non-refoulement obligation in Article 3 of the CAT, which
provides:
(1) No Party shall expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of
being subjected to torture.
Australia is also a party to the Second Optional Protocol to the International Covenant on
Civil and Political Rights, aiming at the abolition of the death penalty.
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Together, these obligations give rise to an obligation not to return (refouler) a person to a
country where they may face the death penalty, arbitrary deprivation of life, torture, or cruel
or inhuman or degrading treatment or punishment.
The provisions in the Bill are compatible with Australia's non-refoulement obligations.
Australia is committed to its international obligations and these measures do not seek to
resile from or limit its non-refoulement obligations.
To the extent that the measures engage non-refoulement obligations, this may occur once a
former citizen's future visas are considered against the criteria in the Migration Act. Under
section 35 of the Migration Act, a person in the migration zone whose Australian citizenship
ceases is taken to have been granted an ex-citizen visa by operation of law when that
citizenship ceases.
The ex-citizen visa is a permanent visa allowing the holder to remain in, but not re-enter,
Australia. As a person convicted of a crime, a criminal offence or offences, the ex-citizen
visa holder may fail the character test, meaning their visa could be cancelled or an
application for another visa could be refused in the exercise of powers under the Migration
Act. This may mean that the person becomes liable for removal from Australia under the
Migration Act. In this circumstance, the person may lodge a protection visa application to
have their protection claims assessed. If the person is found to engage Australia's non-
refoulement obligations as part of this assessment, their removal to the relevant country will
not be authorised or required under the Migration Act, even if they do not meet all the
requirements for the grant of a protection visa (for example character and/or national
security requirements). These mechanisms ensure that a person whose citizenship is ceased
under the provisions proposed in this Bill will not be removed from Australia in breach of
Australia's non-refoulement obligations.
Right to liberty and the prohibition on arbitrary detention in Article 9 of the ICCPR
Article 9(1) of the ICCPR provides:
(1) Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are
established by law.
As set out above, a person who ceases to be an Australian citizen while in the migration
zone is taken to have been granted an ex-citizen visa when that citizenship ceases, allowing
them to reside in Australia. However, an ex-citizen visa may be subject to cancellation on
character grounds under section 501 of the Migration Act, including mandatory cancellation
in the case of a person with a 'substantial criminal record' (which includes a sentence of
imprisonment of 12 months or more) and who is serving a custodial sentence. However, a
discretionary power to revoke that cancellation is available, which allows consideration of
the person's individual circumstances.
A person whose ex-citizen visa is cancelled and is not granted another visa would become
an unlawful non-citizen and be subject to mandatory immigration detention pending
removal pursuant to sections 189 and 198 of the Migration Act.
The right to liberty prohibits the arbitrary and unlawful deprivation of liberty. The notion of
'arbitrariness' includes elements of inappropriateness, injustice and a lack of predictability.
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Detention must not only be lawful, it must also be reasonable, necessary and proportionate
in all the circumstances.
The Government's position is that people who have no legal authority to remain in Australia,
including if a person's ex-citizen visa is cancelled following the cessation of Australian
citizenship, are expected to depart. Any immigration detention pending removal, if the
person does not voluntarily depart, and/or consideration of other options, involves a risk-
based approach to the consideration of the appropriate placement and management of an
individual while their status is being resolved. Placement in an immigration detention
facility is based on the assessment of a person's risk to the community and level of
engagement in the status resolution process.
The right to enter one's own country in Article 12(4) of the ICCPR
Article 12(4) of the ICCPR provides:
...
(4) No one shall be arbitrarily deprived of the right to enter his own country.
The phrase "his own country" has been interpreted broadly by the UN Human Rights
Committee as going beyond mere nationality or citizenship of that country.
To the extent that Australia is taken to be the 'own country' of a person who is subject to a
citizenship cessation order, the deprivation of their right to re-enter Australia as an
Australian citizen through the cessation of their Australian citizenship may limit the right to
re-enter one's own country. A limitation may similarly arise for a person who has their
citizenship ceased and departs Australia while holding an ex-citizen visa. Such a person is
entitled to apply for a visa to re-enter Australia, however it is subject to the satisfaction of
the relevant criteria for the grant of the visa. To the extent that may limit a person's right to
re-enter their 'own country', any limitation is reasonable, necessary and proportionate.
Further, the court is not limited to only taking into consideration the matters in section
36C(6), it can also take into account other matters, which may include submissions raised
by the individual in relation to why they should be able to leave, re-enter and remain in
Australia.
A key threshold which ensures that the measures are proportionate is that the person has
been convicted of a serious offence within the meaning of subsection 36C(3). These are
offences considered to be so egregious that they demonstrate a repudiation of the person's
allegiance to Australia. The provisions only operate in circumstances where the person has
been convicted one of those offences and the court is considering sentencing the person to
a term of imprisonment of at least 3 years, and the court is satisfied of the matters in section
36C(6).
In circumstances where a dual citizen has their Australian citizenship ceased by order of the
court, exits Australia on an ex-citizen visa and is unable to obtain a visa to re-enter Australia,
any limitation is reasonable, necessary and proportionate to achieve the legitimate objective
of protecting the Australian community from the risk posed by a person who has committed
a serious offence, and whose conduct demonstrates the repudiation of their allegiance to
Australia.
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Expulsion of aliens in Article 13 of the ICCPR
Article 13 of the ICCPR provides:
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.
Ceasing a person's Australian citizenship would not directly result in the expulsion of a
person from Australia. Rather, the person would be taken to have been granted an ex-citizen
visa under the Migration Act at the time of citizenship cessation. However, given that
citizenship cessation only occurs where the court is satisfied that the conduct of which they
have been convicted demonstrates that the person has repudiated their allegiance to
Australia, and where the court is considering sentencing the person to a term of
imprisonment of at least three years, it is likely that the ex-citizen visa would be subject to
cancellation on character or compelling reasons of national security, resulting in the removal
of the person from Australia. The application for a citizenship cessation order must be made
before or after the person is convicted but before the person is sentenced, and the Minister
must give the person written notice of the application as soon as practicable after the
application is made. Following conviction, the person will have the opportunity to make
submissions on all aspects of the sentence including matters that relate to citizenship
cessation.
Any cancellation of a person's visa and possible subsequent removal from Australia would
be subject to the relevant provisions in the Migration Act, so the decision to 'expel' the
person from Australia would be reached in accordance with law. The person would have
an opportunity to submit reasons for the visa to not be cancelled (or for the cancellation to
be revoked). Further, the decision to cancel a visa (or not revoke the cancellation of the visa)
can be reviewed by a tribunal depending on the circumstances of the decision, or by a court.
Equality before the courts and tribunals in Article 14 of the ICCPR
Article 14 of the ICCPR relevantly 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 competent, independent
and impartial tribunal established by law ...
...
(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.
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(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.
The amendments promote the right to equality before the courts by repealing the previous
Ministerial Determination citizenship cessation model, and amending the Act to require a
court, upon application from the Minister, to consider whether a person's conduct to which
the conviction or convictions relate demonstrates that the person has repudiated their
allegiance to Australia and their citizenship should be ceased as part of the sentencing of the
person. The amendments provide that the Minister must notify the person in writing, as soon
as practicable after the application is made.
A citizenship cessation order will only imposed by the court, as part of sentencing, for the
offence for which a person has been convicted. Citizenship cessation does not create a new
criminal offence; rather, it allows for the imposition of a consequence at the court's
discretion as part of sentencing, which can only occur upon application by the Minister.
Importantly, it does not amount to an additional punishment for the offence, so is consistent
with Article 14(7). Any citizenship cessation order made by a court will be capable of being
appealed and overturned or quashed in the usual judicial process.
As any citizenship cessation order will be imposed by the court as part of sentencing, that
order will be subject to review or appeal by a higher court as in the ordinary course. Further,
new section 36B(2) would provide that if an order made under subsection 36C(1) is
overturned or quashed, and the time for appealing or applying for leave to appeal has expired
without an appeal or application being lodged, or the decision is not appealable, then the
person's citizenship is taken never to have ceased.
Retrospectivity in Article 15(1) of the ICCPR
Article 15(1) of the ICCPR provides:
(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.
Article 15 may be engaged by these measures as it allows a court to cease a person's
citizenship as part of sentencing for an existing offence where the court is considering
sentencing the person to a term of imprisonment in respect of the conviction or convictions
that is at least three years or totals at least three years, and conduct occurred after
12 December 2015, the date on which the Australian Citizenship Amendment (Allegiance to
Australia) Act 2015 commenced. Prior to the Australian Citizenship Amendment
(Citizenship Cessation) Act 2020, 12 December 2015 was the date on which convictions
which resulted in a sentence of six years or more, or convictions in the ten years prior
resulted in a sentence of at least ten years imprisonment, could be considered for citizenship
cessation. The new measures extend this to sentences of a term of imprisonment of at least
three years, or a total of three years, for offences committed since 12 December 2015 where
the conviction occurs after the commencement of the measures in this Bill. It is necessary
to extend this ability to ensure the safety of the Australian community, and to ensure people
who have repudiated their allegiance to Australia through their actions no longer remain
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part of the Australian community. Any term of imprisonment is considered serious, and
courts often only impose imprisonment for the most serious of offences. Given the range of
factors a court may take into account when sentencing an offender, some of those factors
may reduce a defendant's sentence but this may not impact the serious risk posed by the
nature of the offence. It is reasonable, necessary and proportionate to reduce the sentencing
threshold at which cessation of citizenship may be considered to a term of imprisonment of
at least three years, as this duration adequately balances the risk presented to the community
by the commission of the offence with the possible cessation of the offender's citizenship.
The measures do not introduce any new criminal offences. However, extending the ability
to cease a person's citizenship for criminal offences dating back to 12 December 2015 where
the person may be sentenced to a term of imprisonment of at least three years, or a total of
three years, where the conviction occurs after the commencement of this Bill, also
recognises that past terrorist conduct is conduct that all Australians view as repugnant and
in contradiction with the values that define our society. The measure is also proportionate
as suspended sentences are specifically excluded.
Consideration of citizenship cessation is a consequence of a person engaging in serious and
significant conduct that demonstrates a repudiation of their allegiance to Australia.
Citizenship cessation is not a mandatory consequence for engaging in specified conduct, nor
is it determined by the Minister after a person has been convicted and sentenced to a
specified period of imprisonment. The decision of the Minister to apply to the courts for
consideration is discretionary, and will only be made where the person's conduct is so
serious and significant that it demonstrates the person has repudiated their allegiance to
Australia. It is ultimately for the court to make, if it considers appropriate, an order to cease
a person's Australian citizenship once it has considered all the relevant factors, which is
consistent with its judicial power under the Constitution.
Rights relating to the family unit in Articles 17 and 23 of the ICCPR
Articles 17 of the ICCPR provides:
(1) 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.
(2) Everyone has the right to the protection of the law against such interference or
attacks.
Article 23 of the ICCPR provides:
(1) The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
The amendments promote the right to the protection of family in Articles 17 and 23, as
before making a citizenship cessation order, the court is required to have regard to the best
interests of any dependent children in Australian. The court is not limited to only having
regard to the matters in section 36C(6) and may also have regard to other matters when
considering making an order. An offender for whom the Minister has made an application
to have their Australian citizenship ceased can request that the court also have regard to
family members other than dependent children. In deciding whether to make a citizenship
cessation order, the court must have regard if the person is a child under 18-the best interests
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of the child and if the person has any dependent children in Australia-the best interests of
those children.
However there may be some circumstances where cessation of citizenship under the
provisions may limit the right to protection from interference with family. Citizenship
cessation may subsequently lead to cancellation of a person's permanent visa and removal
from Australia, in circumstances where that individual's family members remain in
Australia, resulting in interference with the family unit. However, such interference would
not be unlawful, and also would not be arbitrary. The cessation of citizenship and any
subsequent visa cancellation and removal would be the consequence of a person who has
engaged in certain criminal activity, and objectively demonstrated a repudiation of their
allegiance to Australia through their conduct. As the citizenship cessation and visa
cancellation (or non-revocation) decisions are discretionary, the impact on family members
may be considered as part of those decisions 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. To the extent that Articles 17 and 23 of the ICCPR are limited by
these measures, the limitations are reasonable, necessary and proportionate in achieving the
legitimate objectives of protection of public order and the Australian community.
The Bill includes amendments to the Surveillance Devices Act 2004 and engages the
protection against arbitrary or unlawful interference with privacy contained in Article 17 of
the ICCPR.
The right to privacy under Article 17 can be permissibly limited in order to achieve a
legitimate objective and where the limitations are lawful and not arbitrary. The term
'unlawful' in Article 17 of the ICCPR means that no interference can take place except as
authorised under domestic law. Additionally, the term 'arbitrary' in Article 17(1) of the
ICCPR means that any interference with privacy must be in accordance with the provisions,
aims and objectives of the ICCPR and should be reasonable in the particular circumstances.
The United Nations Human Rights Committee has interpreted 'reasonableness' to mean that
any limitation must be proportionate and necessary in the circumstances.
The amendments to the Surveillance Devices Act 2004 permit 'protected information' to be
used, recorded, communicated, or admitted in evidence, if necessary for the performance of
a function or exercise of power under, or in relation to a matter arising under section 36C of
the Australian Citizenship Act 2007. These limitations on the right to privacy, are
reasonable, necessary and proportionate to protect national security, public safety, address
crime and terrorism.'
Best interest of the child in Article 3(1) of the CRC
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 interest of the child shall be a primary consideration.
Article 3 would be engaged in two circumstances, in the rare circumstance that a child over
the age of 14 who is convicted of a specified offence, and in respect of a dependent child of
a person for whom an order to have their Australian citizenship ceased has been applied for.
Where a child is convicted in Australia of a specified offence, or offences, the court must
balance the rights of the child with the protection of the Australian community. The types
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of offences specified in section 36C(3) are serious and significant offences, the commission
of which indicates the person's repudiation of their allegiance to Australia. Additionally,
the age limit of 14 years is higher than the current minimum age of criminal responsibility
for Commonwealth criminal offences, which is 10 years of age. Consistent with Australia's
obligations under Article 3(1) of the CRC, the court must have regard to the best interests
of the child in considering whether to make an order to cease the child's citizenship.
Article 3 of the CRC will be engaged in circumstances where a person for whom an order
to cease their citizenship has been applied for and that person has dependent children in
Australia. In these circumstances, in deciding whether to make an order, the court must have
regard to the best interest of the dependent children in Australia.
The court may also consider any other matters which it may consider relevant to the exercise
of its discretion to make an order to cease a person's citizenship. This may include any
submissions made on behalf of the person that relate to non-dependent children in Australia.
Conclusion
The Bill is compatible with human rights because, to the extent that it may limit some human
rights, those limitations are reasonable, necessary and proportionate in achieving the
legitimate objective of protecting the Australian community.
The Hon Clare O'Neil MP
Minister for Home Affairs
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