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AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 35

Service outside Australia in armed forces of an enemy country or a declared terrorist organisation

Cessation of citizenship

             (1)  A person aged 14 or older ceases to be an Australian citizen if:

                     (a)  the person is a national or citizen of a country other than Australia; and

                     (b)  the person:

                              (i)  serves in the armed forces of a country at war with Australia; or

                             (ii)  fights for, or is in the service of, a declared terrorist organisation (see section 35AA); and

                     (c)  the person's service or fighting occurs outside Australia.

Note 1:       The Minister may, in writing, exempt the person from the effect of this section in relation to certain matters: see subsection (9).

Note 2:       This section does not apply to conduct of Australian law enforcement or intelligence bodies, or to conduct in the course of certain duties to the Commonwealth: see section 35AB.

             (2)  The person ceases to be an Australian citizen at the time the person commences to so serve or fight.

             (3)  Subsection (1) applies 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).

             (4)  For the purposes of subparagraph (1)(b)(ii) and without limitation, a person is not in the service of a declared terrorist organisation to the extent that:

                     (a)  the person's actions are unintentional; or

                     (b)  the person is acting under duress or force; or

                     (c)  the person is providing neutral and independent humanitarian assistance.

Minister to give notice

             (5)  If the Minister becomes aware of conduct because of which a person has, under this section, ceased to be an Australian citizen, the Minister:

                     (a)  must give, or make reasonable attempts to give, written notice to that effect to the person:

                              (i)  as soon as practicable; or

                             (ii)  if the Minister makes a determination under subsection (7)--as soon as practicable after the Minister revokes the determination (if the Minister does so); and

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

Note:          A person may seek review of the basis on which a notice under this subsection was given in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903 .

             (6)  A notice under paragraph (5)(a) must set out:

                     (a)  the matters required by section 35B; and

                     (b)  the person's rights of review.

             (7)  The Minister may determine in writing that a notice under paragraph (5)(a) should not be given to a person if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations. The Minister must consider whether to revoke such a determination:

                     (a)  no later than 6 months after making it; and

                     (b)  at least every 6 months thereafter until 5 years have passed since the determination was made.

Minister's power to rescind notice and exempt person

             (8)  Subsections (9) to (14) apply only if a person has ceased to be a citizen under this section.

             (9)  At any time after a person has ceased to be a citizen under this section, the Minister may make a determination to:

                     (a)  rescind any notice given under subsection (5) in respect of the person; and

                     (b)  exempt the person from the effect of this section in relation to the matters that were the basis for the notice, or in relation to matters that would have been the basis for giving a notice in respect of the person under paragraph (5)(a), but for the operation of subsection (7).

           (10)  The Minister does not have a duty to consider whether to exercise the power under subsection (9) in respect of any person, whether the Minister is requested to do so by the person who has ceased to be a citizen under this section, or by any other person, or in any other circumstances.

           (11)  To avoid doubt, in deciding whether to consider exercising the power in subsection (9), the Minister is not required to have regard to any of the matters referred to in subsection (12).

           (12)  If the Minister decides to consider whether to exercise the power in subsection (9), then, in that consideration, the Minister must have regard to the following:

                     (a)  the severity of the matters that were the basis for any notice given in respect of the person under subsection (5), or of matters that would have been the basis for giving a notice in respect of the person under paragraph (5)(a), but for the operation of subsection (7);

                     (b)  the degree of threat posed by the person to the Australian community;

                     (c)  the age of the person;

                     (d)  if the person is aged under 18--the best interests of the child as a primary consideration;

                     (e)  whether the person is being or is likely to be prosecuted in relation to matters referred to in paragraph (a);

                      (f)  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;

                     (g)  Australia's international relations;

                     (h)  any other matters of public interest.

           (13)  If the Minister makes a determination under subsection (9), the Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the Minister makes the determination, a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister's reasons in relation to the matters set out in subsection (12).

           (14)  If the Minister thinks that it would not be in the public interest to publish the name of the person or of any other person connected in any way with the matter concerned, the statement under subsection (13) must not include those names or any information that may identify those persons.

General provisions relating to Minister's powers

           (15)  The powers of the Minister under this section may only be exercised by the Minister personally.

           (16)  Section 47 applies to a decision by the Minister to make, or not make, a determination under subsection (9), but does not apply to any other decision of the Minister under this section (including any decision whether to consider exercising the power in subsection (9) to make a determination).

           (17)  The rules of natural justice apply to a decision by the Minister to make, or not make, a determination under subsection (9), but do not apply to any other decision, or the exercise of any other power, by the Minister under this section (including any decision whether to consider exercising the power in subsection (9) to make a determination).

           (18)  An instrument exercising any of the Minister's powers under this section is not a legislative instrument.

           (19)  To avoid doubt, a person's citizenship is taken never to have ceased under this section because of the person serving or fighting as set out in subsection (1) if:

                     (a)  in proceedings under section 75 of the Constitution, or under this Act or another Commonwealth Act, a court finds that the person did not so serve or fight (whether because of subsection (4) of this section or for any other reason); or

                     (b)  in proceedings under section 75 of the Constitution, or under this Act or another Commonwealth Act, a court finds that the person was not a national or citizen of a country other than Australia at the time the person served or fought; or

                     (c)  the Minister makes a determination under subsection (9) in relation to the conduct to exempt the person from the effect of this section; or

                     (d)  a declaration under section 35AA is disallowed by either House of the Parliament, and the person's citizenship would not have ceased under this section if that declaration had not been made.



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