BILLS DIGEST NO. 36, 2023–24
30 November 2023

Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023

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Key points

The purpose of the Bill is to amend the Australian Citizenship Act 2007 to repeal the current citizenship cessation provisions which were found to be invalid by the High Court of Australia in the matters of Alexander v Minister for Home Affairs and Benbrika v Minister for Home Affairs.
The High Court held that these provisions were contrary to Chapter III of the Constitution which provides that the judicial power of the Commonwealth will be vested in the courts, as opposed to the executive branch of the Commonwealth.
The Bill will introduce new provisions allowing 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.
Provisions allowing for the termination of citizenship on terrorism-related grounds were first introduced by the Turnbull Government, with the support of the Opposition, by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015. These provisions were controversial and resulted in an Australian dual citizen automatically ceasing to be an Australian citizen on the basis of certain conduct.
In response to a review by the Independent National Security Legislation Monitor, the Morrison Government, with the support of the Opposition, passed the Australian Citizenship Amendment (Citizenship Cessation) Act 2020. These amendments replaced the provisions in which Australian citizenship was automatically renounced on the basis of certain conduct, with a ministerial-decision model for citizenship cessation.
Stakeholders have previously raised substantial concerns regarding citizenship revocation provisions, including that they are not effective in addressing national security concerns, may be contrary to Australia’s international law obligations and create a risk of rendering a person stateless.
At the time of writing, the Opposition has supported the passage of the Bill through the House of Representatives but has moved amendments to the Bill in the Senate which seek to expand the scope of what is considered to be a serious offence.

Introductory info

Date introduced: 29 November 2023

House: House of Representatives

Portfolio: Home Affairs

Commencement: the day after Royal Assent.

Purpose of the Bill

The purpose of the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 (the Bill) is to amend the Australian Citizenship Act 2007 (Citizenship Act) and other Commonwealth Acts to:

repeal the current citizenship cessation provisions which were found to be invalid by the High Court of Australia in the matters of Alexander v Minister for Home Affairs and Benbrika v Minister for Home Affairs and
introduce new provisions allowing the Minister for Home Affairs 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.

Background

Australian citizenship law

Citizenship law in Australia is governed by the Citizenship Act, which provides for the circumstances in which a person can both gain and lose Australian citizenship.

There are currently five ways in which a person can cease to be an Australian citizen:

a person may renounce their Australian citizenship (section 33)
where a person became an Australian citizen as a result of making an application, the Minister can revoke their citizenship in circumstances involving offences or fraud in relation to the person’s application to become an Australian citizen (section 34)
where a person applied to become an Australian citizen and the Minister exercised the power to substitute less onerous residence requirements under subsection 22A(1A) or 22B(1A), the Minister can revoke the person’s citizenship in circumstances involving a failure to comply with special residence requirements (section 34A)
if the person is the child of a responsible parent who ceases to be an Australian citizen, the Minister can revoke the child’s citizenship in some situations (section 36)
for certain conduct or convictions, the Minister can make a determination ceasing a person’s citizenship if the Minister is satisfied they have repudiated their allegiance to Australia and that it would be contrary to the public interest for the person to remain an Australian citizen (Subdivision C of Division 3 of Part 2 (citizenship cessation determinations)).

It is the citizenship cessation determination provisions in Subdivision C which are the subject of this Bill.

International law also constrains the circumstances in which a state can revoke citizenship.[1] In particular, article 8(1) of the 1961 Convention on the Reduction of Statelessness provides that a state is not to deprive a person of its nationality if doing so would render the person stateless.

As explained in the Bills Digest to the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019:

There are limited exceptions to this obligation, the main one being where the person has acquired citizenship through misrepresentation or fraud. Article 8(3) provides a further exception if, at the time of signing, ratifying or acceding to the Convention, a state made a declaration retaining an existing right under its domestic law to deprive the citizenship of a person in certain cases, including where, ‘inconsistently with his duty of loyalty to the Contracting State’, the person ‘has conducted himself in a manner seriously prejudicial to the vital interests of the State’.

Australia did not make a declaration when acceding to the Convention in 1973, and no such basis for depriving citizenship existed in Australian law at the time. In contrast, the United Kingdom retained the right to deprive citizenship on this ground.[2]

Introduction of conduct-based provisions for terminating citizenship on terrorism-related grounds

Provisions allowing for the termination of citizenship on terrorism-related grounds were first introduced by the Turnbull Government, with the support of the Opposition,[3] into the Citizenship Act by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (the Allegiance to Australia Act).[4] These provisions were controversial, particularly those that resulted in a dual citizen automatically ceasing to be an Australian citizen on the basis of certain conduct, without the need for court, Ministerial, or other implementing action.[5]

As noted in the Bills Digest to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, the 2015 amendments were aimed at responding to ‘threats identified by the Australian Government and other Western governments includ[ing] those associated with their nationals fighting with overseas terrorist and insurgent groups (‘foreign fighters’) and different forms of ‘home-grown’ terrorism’.[6]

When the proposed changes to the Citizenship Act were first announced, the Government indicated that the power to revoke the Australian citizenship of an Australian dual national would sit with the Minister.[7] This raised concerns from stakeholders, as well as the Opposition, that these amendments may be unconstitutional as ‘to place the decision to revoke a person’s Australian citizenship with the Minister alone would be contrary to the constitutional separation of powers, as it would involve the exercise of the judicial power of the Commonwealth by a non-judicial office holder.’[8]

As noted in the Bills Digest, Professor Greg Craven, one of the strongest critics of the original proposal, categorised it as ‘irredeemably unconstitutional’, and suggested that ‘[b]y conferring a profoundly judicial power on a Minister, it mocks the separation of powers’.[9]

While the Allegiance to Australia Act ultimately did not follow this approach, eminent constitutional lawyer, Professor George Williams, argued that the Bill may still be in breach of the constitutional separation of powers:

… the bill has not cured the underlying problem about ministerial discretion. I can see that it has been drafted to deal with the issue that this decision cannot be made by a minister for constitutional reasons, but the underlying constitutional reason for that is that the decision must be made by court. That is an inescapable aspect of the separation of powers as determined by the High Court. The self-executing model does still not provide for the decision to be made by a court; it simply amounts to a self-executing piece of legislation that bypasses the court at the critical moment of determining whether the requisite liability arises.[10]

These concerns were echoed by other academics, who questioned whether a determination on the basis of certain conduct could even be self-executing:

What does it mean to say a person loses citizenship ‘by their own conduct’? The theory of the self-executing statute upon which the provision relies has been subjected to significant criticism in the Australian courts. The essence of the criticism is the common-sense observation that laws do not apply themselves. As a matter of practical reality, somebody would need to reach a determination that the conduct triggering revocation of citizenship has been ‘undertaken’.[11]

Introduction of a Ministerial ‘decision-making model’

In November 2018, the Morrison Government introduced the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 which proposed to expand the existing terrorism-related grounds on which citizenship could be cancelled.[12]

The Parliamentary Joint Committee on Intelligence and Security’s (PJCIS) report on the Bill included a minority report by Australian Labor Party (Labor) members recommending that it not be passed and that the provisions introduced by the Allegiance to Australia Act be referred immediately to the Independent National Security Legislation Monitor (INSLM) for review.[13]

On 15 February 2019, the Attorney-General asked the INSLM, Dr James Renwick CSC SC, to complete a review of the operation, effectiveness and implications of the amendments to the Citizenship Act made by the Allegiance to Australia Act.[14]

The INSLM’s report was provided to the Government in August 2019 and tabled on 18 September 2019.[15] The INSLM concluded that while justification exists for some form of law allowing for citizenship cessation on the basis of engagement in terrorist activity, he recommended the conduct-based provisions be urgently repealed and replaced with provisions under which citizenship cessation is determined by the Minister and ‘proper safeguards’ apply.[16]

As part of his review, the INSLM considered whether the provisions in the Allegiance to Australia Act raised any constitutional issues, stating that he did not consider there to be ‘any significant constitutional defects’ in the current legislation or in relation to his recommendations.[17]

In response to the review of the INLSM, the Morrison Government, with the support of the Opposition,[18] passed the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Citizenship Cessation Act). The Citizenship Cessation Act amended the Citizenship Act to replace the ‘operation of law’ provisions in which Australian citizenship was automatically renounced on the basis of certain conduct, with a ministerial-decision model for citizenship cessation.[19]

Specifically, sections 36B and 36D of the Citizenship Act now provide the Minister with two ways to make a determination (which can only be made with respect to dual citizens aged 14 or older) that a person ceases to be an Australian citizen if:

the person has been convicted of certain terrorist-related offences and sentenced to at least 3 years total imprisonment (paragraphs 36D(1)(a) and (b)) or
the Minister is satisfied that the person has engaged in certain specified terrorist-related conduct (paragraph 36B(1)(a)) and

in either case the Minister is satisfied that the conduct demonstrates a repudiation of their allegiance to Australia and it would be contrary to the public interest for the person to remain an Australian citizen (paragraphs 36B(1)(b) and (c) and 36D(1)(c) and (d)).

Importantly, under section 36D the power of the Minister to make such a determination is triggered by the conviction of the person by a court in Australia, whereas under section 36B the power is triggered by the Minister being satisfied that the person engaged in certain conduct, rather than by the conviction of the person by a court in Australia.

The Immigration Advice and Rights Centre and the Law Council of Australia raised concerns about the proposed operation of section 36B in their submissions to the PJCIS's inquiry into the Australian Citizenship Amendment (Citizenship Cessation) Bill 2020 [2019].[20]

In their additional comments, Labor members of the PCJIS stated:

The debate about whether the citizenship cessation provisions are constitutional obviously can not be resolved by this Committee. Labor members note that the Government has provided assurances to the Committee, and the Australian people, that the existing citizenship cessation provisions are on a strong constitutional footing. The worth of those assurances will ultimately be determined by the High Court.[21]

The High Court’s decision in Alexander v Minister for Home Affairs

In July 2021, the then Minister for Home Affairs, Karen Andrews, made a determination pursuant to section 36B of the Citizenship Act that Delil Alexander, a dual Turkish-Australian citizen who is currently imprisoned in Syria, ceased to be an Australian citizen.

The determination stated that:

the Minister was satisfied that: Mr Alexander had engaged in foreign incursions while outside Australia, which demonstrated a repudiation of his allegiance to Australia; that it would be contrary to the public interest for Mr Alexander to remain an Australian citizen; and that Mr Alexander would not become stateless by reason of the determination.[22]

Mr Alexander (by way of his sister acting as his litigation guardian) challenged the validity of the determination on a number of grounds, including that it was contrary to Chapter III of the Constitution for conferring upon the Minister ‘the exclusively judicial function of adjudging and punishing criminal conduct’.[23] Chapter III of the Constitution provides that the judicial power of the Commonwealth will be vested in the courts, as opposed to the executive branch of the Commonwealth.

On 8 June 2022, the majority of the High Court of Australia ruled that section 36B of the Australian Citizenship Act was invalid and that Mr Alexander remained an Australian citizen.[24]

In considering whether section 36B constituted an exercise of judicial power, Justices Kiefel, Keane and Gleeson compared its operation with section 36D of the Citizenship Act. They noted that the Minister’s power under section 36D can only be exercised ‘in relation to a person who has been convicted and sentenced of an offence or offences by a court’.[25] In contrast, the Minister's discretion under section 36B ‘arises upon the Minister him or herself being satisfied that the conduct elements of the offence have occurred’.[26]

They concluded that ‘the power [contained in section 36B] to determine the facts which enliven the power to impose such a punishment is one which, in accordance with Ch III of the Constitution, is exercisable exclusively by a court that is a part of the federal judicature’.[27] In separate judgments, Justices Gageler, Gordon and Edelman also concluded that section 36B was invalid as a law that purports to confer exclusively judicial power upon the Executive, with only Justice Steward dissenting.

Government’s response to the High Court’s decision in Alexander v Minister for Home Affairs

Following the High Court’s decision, the Government advised it would examine the judgment and its implications in details, noting that:

The Australian government has a range of measures available to manage the risk posed to Australians by individuals offshore including the temporary exclusion order regime which can prohibit an individual returning to Australia for up to two years.[28]

Section 10 of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 allows the Minister to make a Temporary Exclusion Order which may prevent an Australian citizen aged 14 years or older who is overseas from returning to Australia for up to two years at a time.[29]

Notably, a determination made under sections 36B or 36D does not result in the immediate detention and subsequent removal from Australia of a person who was in Australia when the determination was made. Rather the person is granted an ex‑citizen visa by virtue of subsection 35(3) of the Migration Act 1958 which allows them to remain in, but not re-enter, Australia (though may be eligible for a return visa). However, either visa could be cancelled, or an application for another visa refused, on the basis of the person’s failure to meet character test requirements. As noted by the Explanatory Memorandum, ‘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’ (p. 28).

The High Court’s decision in Benbrika v Minister for Home Affairs

In a sequel to Alexander v Minister for Home Affairs, the High Court was asked to consider the validity of section 36D of the Australian Citizenship Act in Benbrika v Minister for Home Affairs.[30]

Mr Benbrika is an Algerian citizen who became an Australian citizen in 1998. He was later convicted of three terrorism offences under Part 5.3 of the Criminal Code and subsequently served a term of imprisonment exceeding three years which expired in November 2020. Upon completing his sentence, the applicant was subject to an interim detention order and then a continuing detention order, which was set to expire on 24 December 2023.[31] Upon the expiry of his sentence, the then Minister for Home Affairs, Peter Dutton, also made a determination ceasing the applicant’s Australian citizenship.[32]

Mr Benbrika challenged the legality of the detention order regime contained in Division 105A of the Criminal Code, with the High Court upholding the regime.[33] Following the High Court’s decision in Alexander v Minister for Home Affairs, Mr Benbrika challenged the power of the Minister to cease his Australian citizenship under section 36D of the Australian Citizenship Act.

In applying similar reasoning to its decision in Alexander v Minister for Home Affairs, the High Court found section 36D to be invalid:

The effect of Ch III of the Constitution is to make punishment of criminal conduct exclusively judicial even if the punishment is separated from the adjudication of that criminal guilt. Consistently with Ch III, the Commonwealth Parliament cannot repose in any officer of the Commonwealth Executive any function of sentencing persons convicted by Ch III courts of offences against Commonwealth laws. Nor can the Commonwealth Parliament vest in any officer of the Commonwealth Executive any power to impose additional or further punishment on persons convicted by Ch III courts of offences against Commonwealth laws. Section 36D(1) purports to vest such a power to impose additional or further punishment in the Minister.[34] [emphasis added]

Impact of the High Court’s decisions

It is unclear how many people have been directly affected by the decisions of the High Court in these matters. In May 2022, the previous Government stated that ‘To date, under the Coalition’s citizenship cancellation laws, 22 dual nationals have ceased to hold Australian citizenship as a result of their engagement in terrorist conduct’.[35] From 12 June 2022 to 11 June 2023 no one had their citizenship cancelled as a result of these provisions.

Section 17 of the Citizenship Cessation Act relates to people who had lost their citizenship under the self-executing provisions introduced by the Allegiance to Australia Act (referred to as designated non-citizens). Subsection 17(1) provides that at commencement of the Citizenship Cessation Act the Minister is taken to have made a determination (the designated non‑citizen determination) under subsection 36B(1) of the amended Citizenship Act in relation to the designated non-citizen. Subsection 17(2) then provides that ‘the amended Act applies as if the designated non‑citizen determination had been made under subsection 36B(1) of the amended Act’. The Explanatory Memorandum to the Citizenship Cessation Act states that subsection 17(2) ‘makes it clear that after commencement, the amended Citizenship Act will apply to such a person as if a determination had been made under the provisions of this Act’.[36] This raises questions as to whether any determinations to cancel a person’s citizenship stemming from the pre-existing provisions in the Allegiance to Australia Act have also been invalidated by the High Court’s decision.

Professor Kim Rubenstein has also questioned whether the High Court’s decision in Alexander v Minister for Home Affairs would have ramifications for the ability of the Government to make Temporary Exclusion Orders, noting that this would depend on whether ‘there [is] a punitive element to the temporary exclusion orders’.[37] Senator Nick McKim, the Australian Greens spokesperson on Home Affairs, Immigration, Citizenship & Multicultural Affairs, stated that he had ‘significant concerns that the temporary exclusion order powers are unconstitutional’ and called on the Government to immediately get legal advice from the Solicitor-General on this issue.[38]

In its recent decision relating to immigration detention, the High Court provided clarity on whether preventative detention is lawful:

Release from unlawful detention is not to be equated with a grant of a right to remain in Australia. Unless the plaintiff is granted such a right under the Migration Act, the plaintiff remains vulnerable to removal under s 198. Issuing of a writ of habeas corpus would not prevent re‑detention of the plaintiff under ss 189(1) and 196(1) of the Migration Act in the future if, and when, a state of facts comes to exist giving rise to a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future. Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody.[39]

Committee consideration

At the time of writing, the Bill has not been referred to any Committees.

Parliamentary Joint Committee on Intelligence and Security

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) has commenced a statutory review of the operation, effectiveness and implications of Subdivision C of Division 3 of Part 2 of the Citizenship Act (the citizenship cessation determination provisions) and any other provision of that Act as far as it relates to that Subdivision.

In announcing the review, Peter Khalil, Chair of the PJCIS, stated:

This review will provide a valuable opportunity to consider the current security environment and the use by the Australian Government of its citizenship cessation powers. Three years into its operation, the review is an opportunity for the Committee to assure itself that Australia’s citizenship cessation regime is legally robust, fair and proportionate.

The Committee will also be interested in discussing the status of these provisions following consideration by the High Court since they were enacted, notably in the 2022 Alexander case.

The PJCIS is currently receiving submissions in relation to this inquiry.

Senate Standing Committee for the Scrutiny of Bills

The Committee has not reported on the Bill at the time of writing.

Policy position of non-government parties/independents

The Opposition has previously indicated that it will support legislation in response to the High Court’s judgments, with Shadow Minister for Immigration and Citizenship, Dan Tehan, stating that as ‘the court has made that decision we now have to make sure that that legislation can now address the problems that the courts have created —and we want to do that’.[40] At the time of writing, the Opposition has supported the passage of the Bill through the House of Representatives but has moved amendments to the Bill in the Senate which seek to expand the scope of what is considered to be a serious offence.

The Australian Greens have previously opposed the inclusion of provisions allowing for the termination of citizenship on terrorism-related grounds.[41]

Position of major interest groups

Given the urgent nature of these reforms, stakeholders do not appear to have commented on the specific provisions in the Bill. However, stakeholders have provided commentary on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (see pages 9-11 of the Bills Digest) and the Australian Citizenship Amendment (Citizenship Cessation) Bill 2020 [2019] (see pages 15-18 of the Bills Digest).

In particular, stakeholders raised a number of concerns with the provisions of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2020 [2019] which would also likely be relevant with respect to the provisions of this Bill:

citizenship revocation is not an effective means of addressing national security concerns, or has the potential to exacerbate rather than reduce risks to security
citizenship deprivation powers, and attempts at their expansion, threaten the principles of integrity, stability and equality of Australian citizenship
the retrospective application of the provisions and
human rights implications and potential inconsistency with international law/obligations.[42]

Financial implications

The Explanatory Memorandum states that the Bill will have a low financial impact (p. 7)

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.

The Government considers that the Bill is compatible.[43]

Parliamentary Joint Committee on Human Rights

The Committee has not reported on the Bill at the time of writing.

Key issues and provisions

Key provisions

Item 4 of the Bill will repeal the existing citizenship cessation determination provisions contained in sections 36B-36K of the Citizenship Act and introduce three new provisions: proposed sections 36B, 36C and 36D. As with the existing provisions, the new provisions will apply 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).

Application to cease a person’s citizenship

Proposed subsection 36D(1) provides the Minister with the power to make an application for the court to make an order to cease a person’s citizenship. This power cannot be delegated to any other person (item 10 of the Bill).

The application must be made prior to the person being sentenced (though may be made at any time prior to this) and written notice must be given to the person the subject of the application as soon as practicable after the application is made. The application must be made in the jury’s absence, must not be referred to in the presence of the jury, and can only be heard by the court after the person is convicted.

The application must include information about the person’s age, Australian citizenship and their nationality/citizenship with respect to other countries. The Minister is required to consult with the Foreign Affairs Minister before making the application, as ‘in certain circumstances, cessation of a person’s Australian citizenship may not be the preferred outcome’ (p. 18, Explanatory Memorandum).

Power of the court to cease a person’s citizenship

Proposed section 36C will allow a court, in addition to sentencing a person, to order that their Australian citizenship is to cease, if:

a person is convicted of one or more serious offences
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. The term of each sentence to be served concurrently will be separately counted to reach the total figure.[44] While a period of imprisonment does not include a period of imprisonment that is suspended, it can include a single period of imprisonment imposed for more than one offence, including an offence that is not a serious offence, provided one of the offences for which the sentence was imposed is a serious offence – see proposed subsection 36C(9)
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
- 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 and
- the person would not be rendered stateless as a result of having their citizenship ceased.

In deciding whether to make an order to cease a person’s citizenship, the court must have regard to the following (though is not limited to what it may consider):

if the person is a child under 18 – the best interests of the child
if the person has dependent children in Australia – the best interests of those children
the person’s connection to the other country of which the person is a national/citizen and the availability of the rights of citizenship of that country to the person.

Further, in deciding whether the person’s conduct 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 (though is not limited to what it may consider):

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.

The serious offences for which a court may make a determination of citizenship cessation as part of sentencing, are similar to those set out under the existing legislation:

a provision of Subdivision A of Division 72 of the Criminal Code Act 1995 (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)
a provision of Part 5.3 of the Criminal Code (terrorism), other than the following:
- section 102.8 (associating with terrorist organisations)
- Division 104 (control orders)
- Division 105 (preventative detention orders)
- section 105A.7D (treatment of photographs and impressions of fingerprints)
- section 105A.18B (offence relating to monitoring devices)
a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment).

While these offences are almost identical to those included in subsection 36(5) of the Citizenship Act, the reference to section 83.1 has been added, and sections 105A.7D and 105A.18B are excluded. Further, the current reference to ‘a provision of Division 82 of the Criminal Code (sabotage), other than section 82.9’ has been removed.

Proposed section 36B provides that where a court had made an order to cease a person’s citizenship under proposed subsection 36C(1), the person ceases to be an Australian citizen at the time the order is made. However, where the order is subsequently overturned or quashed, the person’s citizenship is taken to have never ceased. If a court then subsequently overturns the decision which led to the person’s citizenship being reinstated, then the person ceases to be an Australian citizen at the time the court makes that decision.

The power of the court to cease a person’s citizenship will only apply in relation to a conviction that occurs after the Bill, once enacted, commences. However, it will apply to conduct constituting the offence where the conduct occurs at any time on or after 12 December 2015 (item 18 of the Bill).

Reporting requirements

Items 7 and 8 of the Bill will amend the current reporting requirements to provide that as soon as practicable following 12 months after the commencement of the provisions (and each subsequent 12 month 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 or an earlier reporting period, that relate to persons who have been convicted during the reporting period.

Statutory review of the new provisions

Item 14 of the Bill inserts proposed subsection 6(1F) into the Independent National Security Legislation Monitor Act 2010, which provides that the INSLM must complete a review of the new provisions inserted into Subdivision C of Division 3 of Part 2 of the Citizenship Act as soon as practicable after the end of the three-year period following commencement of the provisions.

Item 16 of the Bill inserts proposed paragraph 29(1)(cb) into the Intelligence Services Act 2001 to allow the Parliamentary Joint Committee on Intelligence and Security to also review the new citizenship cessation provisions inserted by the Bill following the review conducted by the INSLM.

Concluding comments

As with other recent reforms relating to immigration detention, there is the possibility that these reforms will be rushed through the Parliament. As argued by the Law Council of Australia, the lack of adequate time for consultation and scrutiny on legislative amendments may lead to legislation which requires subsequent amendments.

The serious nature of citizenship cessation, along with the recent decisions of the High Court to find the current provisions constitutionally invalid, suggest that there would be a strong benefit in allowing for the provisions of the Bill to be appropriately scrutinised.

References
[1]. Convention Relating to the Status of Stateless Persons, done in New York 28 September 1954, [1974] ATS 20 (entered into force generally on 6 June 1960 and for Australia on 13 March 1974); Convention on the Reduction of Statelessness, (1961 Convention), opened for signature 30 August 1961, [1975] ATS 46, (entered into force for Australia and generally 13 December 1975); also see Refugee Council of Australia, Statelessness in Australia, Sydney, August 2015, p. 10.

[2]. Cat Barker and Claire Petrie, ‘Australian Citizenship Amendment (Citizenship Cessation) Bill 2019’, Bills Digest, 58, 2019–20, (Canberra: Parliamentary Library, 2019), 13.

[3]. Australia, House of Representatives, ‘Australian Citizenship Amendment (Allegiance to Australia) Bill 2015’, Votes and proceedings, HVP 163, 2013–15, 30 November 2015.

[4]. For further information, see Cat Barker and Margaret Harrison-Smith, ‘Australian Citizenship Amendment (Allegiance to Australia) Bill 2015’, Bills Digest, 15, 2015–16, (Canberra: Parliamentary Library, 2015).

[5]. Australian Citizenship Amendment (Allegiance to Australia) Act 2015, items 3 and 4 of Schedule 1, inserting sections 33AA and 35 into the Citizenship Act.

[6]. Barker and Harrison-Smith, ‘Australian Citizenship Amendment (Allegiance to Australia) Bill 2015’, 4–5.

[7]. Tony Abbott (Prime Minister) and Peter Dutton (Minister for Immigration and Border Protection), New measures to strengthen Australian citizenship, media release, 26 May 2015.

[8]. See Barker and Harrison-Smith, ‘Australian Citizenship Amendment (Allegiance to Australia) Bill 2015’, 5–6.

[9]. Professor G Craven, ‘Stripping citizenship from a traitor is plain dumb’, The Australian, 4 June 2015, 12.

[10]. Professor George Williams AO, Evidence to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, 4 August 2015, 12–13.

[11]. Raynor Thwaites and Helen Irving, ‘The Citizenship Amendment Bill: Out of the Frying Pan into the Fire’, Australian Public Law Blog, 20 June 2015.

[12]. For further information, see Cat Barker and Claire Petrie, ‘Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018’, Bills Digest, 59, 2018–19, (Canberra: Parliamentary Library, 2019).

[13]. Australian Labor Party (Labor) members, Minority report, PJCIS, Advisory report on the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018, (Canberra: The Senate, 2019).

[14]. James Renwick CSC SC, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, Independent National Security Legislation Monitor (INSLM), (Canberra: INSLM, 2019), v.

[15]. Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, v.

[16]. Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, xiii-xv (see further pp. 45–58).

[17]. Renwick, Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, 16–20.

[18]. Australia, Senate, Journals, ‘Australian Citizenship Amendment (Citizenship Cessation) Bill 2020’, 66, 3 September 2020, 2314–2315.

[19]. For further information, see Barker and Petrie, ‘Australian Citizenship Amendment (Citizenship Cessation) Bill 2019’.

[20]. Immigration Advice and Rights Centre (IARC), Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 8], [incorrectly dated], 2–3; Law Council of Australia; Submission to PJCIS, Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, [Submission no. 18], 17 October 2019, 31–33.

[21]. Australian Labor Party (Labor) members, Minority report, PJCIS, Advisory report on the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, (Canberra: PJCIS, 2019), 69.

[22]. Alexander v Minister for Home Affairs [2022] HCA 19, [15].

[23]. Alexander v Minister for Home Affairs [2022] HCA 19, [17].

[24]. Alexander v Minister for Home Affairs [2022] HCA 19, [97].

[25]. Alexander v Minister for Home Affairs [2022] HCA 19, [86].

[26]. Alexander v Minister for Home Affairs [2022] HCA 19, [86].

[27]. Alexander v Minister for Home Affairs [2022] HCA 19, [96].

[28]. Mark Dreyfus KC (Attorney-General), High Court of Australia Alexander ruling, media release, 8 June 2022.

[29]. For further information, see Cat Barker, ‘Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 [and] Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019’, Bills Digest, 6, 2019–20, (Canberra: Parliamentary Library, 2019).

[30]. Benbrika v Minister for Home Affairs [2023] HCA 33.
- [31]. Minister for Home Affairs v Benbrika [2021] HCA 4 at para [4].
[32]. Peter Dutton (Minister for Home Affairs), ‘Transcript of press conference: Brisbane, Qld: Australian Centre to Counter Child Exploitation; US-Australian alliance; Abdul Nacer Benbrika; Mathais Cormann’, 25 November 2020, 5.

[33]. Minister for Home Affairs v Benbrika [2021] HCA 4. For further information on counter-terrorism orders, see Leah Ferris,
Counter-Terrorism and Other Legislation Amendment Bill 2023, Bills digest, 14, 2023–24, (Canberra: Parliamentary Library, 2023.

[34]. Benbrika v Minister for Home Affairs [2023] HCA 33 at para [41].

[35]. ‘Strong Border Protection’, Liberal Party of Australia, current as at May 2022.

[36]. Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, Explanatory Memorandum, 44.

[37]. Paul Karp, ‘Power to ban citizens from re-entering Australia questioned after high court decision on dual nationals’, The Guardian, 22 June 2022.

[38]. Karp, ‘Power to ban citizens from re-entering Australia questioned after high court decision on dual nationals’.

[39]. NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, para [72].

[40]. Dan Tehan (Shadow Minister for Immigration and Citizenship), ‘Labor's Budget; national security’, interview by Peter Stefanovic, Sky News, 27 October 2022.

[41]. Australia, House of Representatives, ‘Australian Citizenship Amendment (Allegiance to Australia) Bill 2015’, Votes and proceedings, HVP 163, 2013–15, 30 November 2015; Australia, Senate, Journals, ‘Australian Citizenship Amendment (Citizenship Cessation) Bill 2020’, 66, 3 September 2020, 2314–2315.

[42]. For further information, see Barker and Petrie, ‘Australian Citizenship Amendment (Citizenship Cessation) Bill 2019’, 15-18.

[43]. The Statement of Compatibility with Human Rights can be found at pages 25-37 of the Explanatory Memorandum to the Bill.

[44]. Proposed 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 proposed subsection 36C(1), the whole of each period is to be counted in working out the total of those periods.
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