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Citizenship cessation determination for certain conduct

Cessation of citizenship on determination by Minister

             (1)  The Minister may determine in writing that a person aged 14 or older ceases to be an Australian citizen if the Minister is satisfied that:

                     (a)  the person:

                              (i)  engaged in conduct specified in subsection (5) while outside Australia; or

                             (ii)  engaged in conduct specified in any of paragraphs (5)(a) to (h) while in Australia, has since left Australia and has not been tried for an offence in relation to the conduct; and

                     (b)  the conduct demonstrates that the person has repudiated their allegiance to Australia; and

                     (c)  it would be contrary to the public interest for the person to remain an Australian citizen (see section 36E).

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 . See also section 36H of this Act (revocation of citizenship cessation determination on application to Minister).

             (2)  However, the Minister must not make a determination if the Minister is satisfied that the person would, if the Minister were to make the determination, become a person who is not a national or citizen of any country.

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

             (4)  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).

             (5)  For the purposes of paragraph (1)(a), the conduct is any of the following:

                     (a)  engaging in international terrorist activities using explosive or lethal devices;

                     (b)  engaging in a terrorist act;

                     (c)  providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;

                     (d)  directing the activities of a terrorist organisation;

                     (e)  recruiting for a terrorist organisation;

                      (f)  financing terrorism;

                     (g)  financing a terrorist;

                     (h)  engaging in foreign incursions and recruitment;

                      (i)  fighting for, or being in the service of, a declared terrorist organisation (see section 36C);

                      (j)  serving in the armed forces of a country at war with Australia.

Note 1:       A determination may be made in relation to conduct specified in subsection (5) that was engaged in before the subsection commenced (see item 18 of Schedule 1 to the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 ).

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 subsection (8)).

             (6)  Words and expressions used in paragraphs (5)(a) to (h) have the same meanings as in Subdivision A of Division 72, sections 101.1, 101.2, 102.2, 102.4, 103.1 and 103.2 and Division 119 of the Criminal Code , respectively. However (to avoid doubt) this does not include the fault elements that apply under the Criminal Code in relation to those provisions of the Criminal Code .

             (7)  For the purposes of paragraph (5)(i) 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.

             (8)  This section does not apply to conduct engaged in by:

                     (a)  a person in the proper performance of a function of a body, agency or organisation of the Commonwealth, or of a State or Territory, that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud, security intelligence, foreign intelligence or financial intelligence; or

                     (b)  a person acting in the course of the person's duty to the Commonwealth in relation to the defence, security or international relations of Australia.

General provisions relating to Minister's powers

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

           (10)  Section 47 (notification of decisions) does not apply to a decision of the Minister under this section (see section 36F instead).

           (11)  The rules of natural justice do not apply in relation to making a decision or exercising a power under this section.

           (12)  A determination made under subsection (1) is not a legislative instrument.

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