Chapter 1 - Introduction

  1. Introduction

The Bill (Act) and its referral

1.1The Parliamentary Joint Committee on Intelligence and Security is required under paragraph 29(1)(ca) of the Intelligence Services Act 2001, 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 Australian Citizenship Act 2007 (citizenship cessation determinations) and any other provision of that Act as far as it relates to that Subdivision.

1.2The Committee commenced the review and called for submissions on 12 September 2023.

1.3The Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 (the Bill) was introduced into Parliament on 29 November 2023, and was passed by both Houses on 6 December 2023. That Bill, which became law on 8 December 2023 as the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023, (the Act) repealed and replaced the operative provisions of Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007.

1.4On 4 December 2023 the Senate resolved:

That, following the passage of the bill, the following matter be referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 14 March 2024: The operation, effectiveness and implications of the amendments made by the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023

1.5Further, on 7 December 2023 the Senate resolved:

That the Parliamentary Joint Committee on Intelligence and Security, in undertaking any inquiry into the amendments made by the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023, also consider any amendments to the bill which have been circulated in the Senate.

1.6Following the passage of the Bill, the review required under paragraph 29(1)(ca) of the Intelligence Services Act 2001 and the inquiry required by the (first) Senate referral became substantively identical. The Committee therefore decided to combine the two reviews and report on them together. As set out above, the Bill, as referred to the Committee, is now law and will therefore be referred to as the Act for the purpose of this report.

Conduct of the inquiry

1.7The Committee commenced the joint review on 7 December 2023 and invited submissions addressing the operation, effectiveness and implications of the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 by 8 February 2024.

1.8The Committee received 13 submissions and two supplementary submissions. Appendix A sets out a list of submissions received.

1.9The Committee held a public hearing on 19 February 2024. Appendix B sets out a list of witnesses who appeared at the public hearing. At the public hearing it was suggested by a member of the Committee that ASIO had declined to appear before it. The Committee confirms that ASIO was not invited to appear at the public hearing, having advised the Committee that it would not make a submission to the review.

1.10Copies of the submissions, the transcript from the public hearing, and links to the Bill, proposed Senate amendments and Explanatory Memorandum can be accessed from the Committee’s website.

Report structure

1.11This report contains three chapters:

  • this introduction, which includes an outline of the Act;
  • a chapter setting out issues arising in the Committee’s consideration of the Act; and
  • a third chapter providing the Committee’s comments and recommendations.

Legislative history of citizenship loss

The Allegiance to Australia Act

1.12In 2015, the Government introduced amendments to the Australian Citizenship Act 2007 (Citizenship Act) via the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Allegiance to Australia Bill). The legislative changes broadened the powers of the Minister relating to the cessation of Australian citizenship for individuals engaging in terrorism, and those who are a serious threat to Australia and Australian interests.

1.13The Committee conducted an inquiry into the 2015 bill and made 27 recommendations, which were accepted by the Government and incorporated in the subsequent Australian Citizenship Amendment (Allegiance to Australia) Act 2015.

The Australian Citizenship Amendment (Citizenship Cessation) Act

1.14In 2019, following a review of the citizenship loss provisions, the Independent National Security Legislation Monitor recommended that the automatic renouncement model be replaced with a Ministerial discretion model.[1] The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 was introduced to repeal and replace the 2015 legislation to that end. The Committee conducted an inquiry into the 2019 bill and made four recommendations, which were incorporated in the subsequent Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Citizenship Cessation Act).

1.15In explaining sections 36B and 36D of the Citizenship Cessation Act the Explanatory Memorandum (EM) for the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 states:

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 [be ceased], 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 an Australian citizen.[2]
    1. Sections 36B and 36D were found to be constitutionally invalid by the High Court in Alexander v Minister for Home Affairs [2022] HCA 19 and Benbrika v Minister for Home Affairs [2023] HCA 33 respectively. In invalidating these sections, the High Court found that 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.[3]

The Australian Citizenship Amendment (Citizenship Repudiation) Act 2023

1.17The Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 amended the Citizenship Act to repeal the invalid provisions and establish a revised citizenship cessation regime. Under the new regime the Minister can 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.

Cessation of citizenship if citizenship cessation order made by court

1.18Subsection 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.

1.19Subsection 36B(2) provides that a person’s citizenship is taken never to have ceased in circumstances where a [subsequent] decision of a court overturns or quashes the order. In such a case, however, 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.

1.20Subsection 36B(4) provides that 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.

Citizenship cessation order if person is convicted of serious offence

1.21Section 36C provides the court with the discretion to make a citizenship cessation order where a person is convicted of one or more ‘serious offences’ and where certain preconditions are met. Section 36C sets out the requirements that must be met, 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.

1.22Paragraphs 36C(1)(a)-(d) set out the conditions that must be met before the court may order as part of the sentence or sentences that the person ceases to be an Australian citizen. The conditions are that:

  • the 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
  • the Minister has made an application (see subsection 36D(1) below) 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; and
  • the court is satisfied of the matters set out in new subsection 36C(4).
    1. Subsection 36C(2) provides that court must not make a citizenship cessation order 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.
    2. 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 Act 1995 (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 [Associating with terrorist organisations];
  • Division 104 [Control orders];
  • Division 105 [Preventative detention orders];
  • Section 105A.7D [use of photographs and fingerprints in relation to supervision orders];
  • section 105A.18B [interference with a monitoring device worn under a supervision order];
  • a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment).
    1. Paragraphs 36C(4)(a)-(c) set out the matters, in addition to sentencing the person to the requisite period or periods of imprisonment, that the court must be satisfied of in exercising its discretion to make a citizenship cessation order, as follows:
  • the person is aged 14 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.
    1. Paragraphs 36C(5)(a)-(e) set out the matters the court must have regard to deciding whether it is satisfied that the person’s conduct meets the ‘so serious and significant that it demonstrates…’ test referred to in new paragraph 36C(4)(c). The specified matters are:
  • whether the conduct 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;
  • the intended scale of the conduct;
  • the actual impact of the conduct;
  • whether the conduct caused, or was intended to cause, harm to human life or a loss of human life.
    1. Paragraphs 36C(6)(a)-(c) set out further specified matters that the court must have regard to in deciding whether to make a citizenship cessation order in relation to the person. The specified matters are:
  • if the person is a child aged under 18 years old—the best interests of the child;
  • if the person has any 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 or citizen and the availability of the rights of citizenship of that country to the person.
    1. Subsection 36C(8) provides that if a court has decided to impose 2 or more periods of imprisonment to be served concurrently (whether in whole or in part), then, for the purposes of subsection 36C(1), the whole of each period is to be counted in working out the total of those periods.
    2. Paragraph 36C(9)(a) provides that, for the purposes of subsection 36C(1), a reference to a period of imprisonment in that subsection does not include a period of imprisonment that is suspended.
    3. Paragraph 36C(9)(b) provides that, for the purposes of 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.
    4. Subsection 36C(10) clarifies that 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).

Application by the Minister for a citizenship cessation order

1.32Subsection 36D(1) enables the Minister to make an application to the court for a citizenship cessation order, in respect of a person who has been convicted of one or more ‘serious offences’, prior to the person’s sentencing.

1.33Subsection 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.

1.34Subsection 36D(3) provides that, before the Minister makes an application to the court, the Minister must consult the Foreign Affairs Minister to ensure that Australia’s bilateral relationships and international relations more broadly are considered ahead of a citizenship cessation application being made by the Minister.[4]

1.35Paragraphs 36D(4)(a) - (c) set out the specified matters that the application under subsection 36D(1) must include. These are:

  • information about the person’s age;
  • information about the person’s Australian citizenship;
  • information about the person’s nationality or citizenship of other countries.[5]
    1. Paragraphs 36D(5)(a) - (c) specify certain conditions in relation to the application under subsection 36D(1). The conditions are:
  • the application must be made in the jury’s absence; and
  • the application must not be referred to in the presence of the jury; and
  • the application must only be heard after the person is convicted of one or more ‘serious offences’.
    1. 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.
    2. 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).[6]
    3. Subsection 36D(8) provides that new section 36D applies to a person who is an Australian citizen regardless of how the person became an Australian citizen.

Application provision

1.40The Act includes an application provision (clause 18 of Schedule 1), providing that new section 36C of the Citizenship Act applies in relation to a conviction of a person [only] if both of the following apply:

  • the conviction occurs after the commencement of the item; and
  • the person engaged in the conduct to which the conviction relates on or after 12 December 2015.[7]
    1. This application provision operates so that the discretionary power of the court under new section 36C is only available in relation to a conviction that occurs after the Act commenced, and only for conduct engaged in on or after 12 December 2015. This date aligns with the commencement of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015.[8]

Reviews by the Independent National Security Legislation Monitor and the PJCIS

1.42A new subsection 6(1F) inserted into the Independent National Security Legislation Monitor Act 2010 (INSLM Act), provides that the INSLM must do the following:

  • 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 Act, and any other provision of the Citizenship Act so far as it relates to that Subdivision and
  • complete the review as soon as practicable after the end of the 3 year period beginning on the day the amendments of the Subdivision commenced.[9]
    1. A new paragraph 29(1)(cb) was inserted into the Intelligence Services Act 2001, which provides that the Parliamentary Joint Committee on Intelligence and Security may resolve to commence a review, after the Independent National Security Legislation Monitor completes their review, 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.

Other amendments

1.44The Act, as passed, amended a number of other sections of the Citizenship Act and also amended the Surveillance Devices Act 2004 (SD Act), pursuant to the changes to the citizenship cessation regime.

Other amendments to the Citizenship Act

1.45Section 48 of the Citizenship Act provides for computerised decision-making under that Act. New subsection 48(5A) provides for exceptions to this section and is amended to omit the word ‘determinations’ from it. This ensures the computerised decision-making section does not apply in relation to anything done under Subdivision C of Division 3 of Part 2 (citizenship cessation determinations).

1.46Amendments to section 51B of the Citizenship Act were made to provide that, as soon as practicable after each ‘reporting period’ (which is each 12-month period from the commencement of the provisions), the Minister must table a report in each House of the Parliament that sets out the number of applications made under new section 36D.

1.47Section 51C, which concerned briefing of the PJCIS in relation to ministerial determinations, has been repealed.

1.48Subsection 53(2) is amended so that the Minister’s power to make an application for a citizenship cessation order cannot be delegated to any other person.

Amendments to the Surveillance Devices Act 2004

1.49A consequential reference to new section 36C of the Citizenship Act has been added to the end of paragraph 45(5)(ia) of the SD Act, 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. This allows ‘protected information’ obtained under the SD Act to be used in evidence during court proceedings relating to citizenship cessation.

The referred amendments

1.50As required under the 7 December 2023 Senate resolution, amendments proposed in the Senate Committee of the Whole debate which did not pass and do not form part of the final Act are also considered in this report. The text of these proposed amendments, described below, can be found at Appendix C.

Independent [sheet 2323] amendment moved by Senator Thorpe

1.51The amendment moved by Senator Thorpe on sheet 2323 referred to paragraph 36C(1)(b) inserted by the Act, which regards the minimum period of imprisonment to which a person must be sentenced before a court may order that the person ceases to be an Australian citizen.

1.52The proposed amendment would have had the effect of increasing the minimum period of imprisonment from 3 years to 5 years before the court may order as part of a sentence that the person ceases to be an Australian citizen.

Independent [sheet 2318] amendment moved by Senator Thorpe

1.53The amendment moved by Senator Thorpe on sheet 2318 referred to subsection 36C(8) which 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, then the whole of each period is to be counted in working out the total of those periods.

1.54The proposed amendment would have had the effect that concurrent periods of imprisonment are to be counted only once. The proposed amendment included the following example:

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 8 years imprisonment to be served concurrently. For the purposes of subsection (1), the total period of imprisonment is 8 years.[10]

Independent [sheet 2288] amendments moved by Senator David Pocock

1.55The amendments moved by Senator David Pocock on sheet 2288 referred to paragraph 36C(4)(b) and subsection 36D(8) which outline that the court must be satisfied that the person is an Australian citizen when exercising its discretion to make a citizenship cessation order.

1.56The proposed amendments would have provided that the court cannot make an order of citizenship cessation on a person born in Australia who either became an Australian citizen upon their birth or became an Australian citizen because they were eligible for citizenship due to statelessness.

Independent [sheet 2287] amendments moved by Senator David Pocock

1.57The amendments moved by Senator David Pocock on sheet 2287 referred to paragraph 36C(4)(a) and subsection 36D(4). Subsection 36C(4) sets out the matters the court must be satisfied of in exercising its discretion to make a citizenship cessation order. Subsection 36D(4) provides that the Minister’s application for a citizenship cessation order must include specified matters.

1.58The proposed amendments would have provided that the court cannot make an order of citizenship cessation on an Aboriginal or Torres Strait Islander person and, as part of the Minister’s application, the Minister would need to provide information about whether the person is an Aboriginal or Torres Strait Islander person.

Independent [sheet 2284] amendment moved by Senator David Pocock

1.59The amendment moved by Senator David Pocock on sheet 2284 referred to paragraph 36C(4)(a) which provides that the court must be satisfied that a person is aged 14 years or over when exercising its discretion to make a citizenship order.

1.60The proposed amendment would have increased the minimum age from 14 years to 18 years.

Opposition [sheet 2282] amendments moved by Senator Cash, on behalf of the Opposition

1.61The amendments moved by Senator Cash on behalf of the Opposition referred to subsection 36C(3) which provides the meaning of a ‘serious offence’.

1.62The proposed amendments would have:

  • Added a provision of Subdivision C of Division 80 of the Criminal Code (urging violence and advocating terrorism or genocide) to the list of serious offences.
  • Expanded paragraph 36C(3)(c) to include all offences in section 83 of theCriminal Code(other threats to security). These offences include advocating mutiny, assisting prisoners of war to escape, military-style training involving foreign government principal etc. and interference with political rights and duties.
  • Removed section 105A.18B (Offence relating to monitoring devices) from the exempt provisions under Part 5.3 of theCriminal Code(Terrorism).
  • Added a provision of Part 5.4 of the Criminal Code (harming Australians) to the list of serious offences. These offences include murder of an Australian citizen or a resident of Australia, manslaughter of an Australian citizen or a resident of Australia, intentionally causing serious harm to an Australian citizen or a resident of Australia and recklessly causing serious harm to an Australian citizen or a resident of Australia.
  • Added a provision of Division 270 of the Criminal Code (slavery and slavery like offences) to the list of serious offences.
  • Added a provision of Division 272 of the Criminal Code (child sex offences outside Australia) to the list of serious offences.
  • Added a provision of Division 274 of the Criminal Code (torture) to the list of serious offences.
  • Added a provision of Part 9.4 of the Criminal Code (dangerous weapons) to the list of serious offences.
  • Added a provision of Subdivision D of Division 474 of the Criminal Code (use of carriage service for child abuse material) to the list of serious offences.
  • Added a provision of Subdivision F of Division 474 of the Criminal Code (use of carriage service involving sexual activity with, or causing harm to, person under 16) to the list of serious offences.

Footnotes

[1]Australian Government, Independent National Security Legislation Monitor, Report to the Attorney-General: Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007, tabled 18 September 2019 https://www.inslm.gov.au/sites/default/files/INSLM%20Citizenship%20unclassified%20report%20FINAL.pdfaccessed 23 January 2019, p. xv.

[2]Explanatory Memorandum (EM), p. 2.

[3]EM, pp. 2-3.

[4]EM, p. 18, [53].

[5]EM, p. 18, [54]

[6]EM, p. 19, [59].

[7]EM, p. 23, [94]

[8]EM, p. 23, [96].

[9]Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023) , Explanatory Memorandum, p. 21-22.

[10]Independent [sheet 2318] amendments moved by Senator Thorpe

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