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AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 35A

Conviction for terrorism offences and certain other offences

Cessation of citizenship on determination by Minister

             (1)  The Minister may determine in writing that a person ceases to be an Australian citizen if:

                     (a)  the person has been convicted of an offence against, or offences against, one or more of the following:

                              (i)  a provision of Subdivision A of Division 72 of the Criminal Code ;

                             (ii)  a provision of Subdivision B of Division 80 of the Criminal Code (treason);

                           (iia)  a provision of Division 82 of the Criminal Code (sabotage) other than section 82.9 (preparing for or planning sabotage offence);

                           (iib)  a provision of Division 91 of the Criminal Code (espionage);

                           (iic)  a provision of Division 92 of the Criminal Code (foreign interference);

                            (iii)  a provision of Part 5.3 of the Criminal Code (except section 102.8 or Division 104 or 105);

                            (iv)  a provision of Part 5.5 of the Criminal Code ;

                            (vi)  section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 ; and

                     (b)  the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 6 years, or to periods of imprisonment that total at least 6 years; and

                     (c)  the person is a national or citizen of a country other than Australia at the time when the Minister makes the determination; and

                     (d)  the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia; and

                     (e)  having regard to the following factors, the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen:

                              (i)  the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences;

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

                            (iii)  the age of the person;

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

                             (v)  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;

                            (vi)  Australia's international relations; and

                           (vii)  any other matters of public interest.

Note:          A person may seek review of a determination made under this subsection 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 .

             (2)  The person ceases to be an Australian citizen at the time when the determination is made.

             (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 purpose of paragraph (1)(b):

                     (a)  the reference to being sentenced to a period of imprisonment does not include a suspended sentence; and

                     (b)  if a single sentence of imprisonment is imposed in respect of both an offence against a provision mentioned in paragraph (1)(a) and in respect of one or more other offences, then:

                              (i)  if it is clear that only a particular part of the total period of imprisonment relates to the offence against the provision mentioned in paragraph (1)(a)--the person is taken to have been sentenced to imprisonment in respect of that offence for that part of the total period of imprisonment; and

                             (ii)  if subparagraph (i) does not apply--the person is taken to have been sentenced to imprisonment in respect of the offence against the provision mentioned in paragraph (1)(a) for the whole of the total period of imprisonment.

Minister to give notice

             (5)  If the Minister makes a determination under subsection (1) because of which a person ceases 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 subsection (7) 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.

             (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 the 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 must revoke determination if conviction overturned

             (8)  The Minister must, in writing, revoke a determination made under subsection (1) in relation to a person if:

                     (a)  a conviction because of which the determination was made is later overturned on appeal, or quashed, by a court; and

                     (b)  that decision of that court has not been overturned on appeal; and

                     (c)  no appeal, or further appeal, can be made to a court in relation to that decision.

             (9)  If the Minister revokes the determination, the person's citizenship is taken never to have ceased under this section because of that determination.

General provisions relating to Minister's powers

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

           (11)  Except for the powers of the Minister under subsection (1), the rules of natural justice do not apply in relation to the powers of the Minister under this section.

           (12)  Section 47 does not apply in relation to the exercise of the powers of the Minister under this section.

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



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