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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Australian Citizenship Amendment
(Citizenship Cessation) Bill 2019
No. , 2019
(Home Affairs)
A Bill for an Act to amend the
Australian
Citizenship Act 2007
, and for related purposes
No. , 2019
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Amendments
3
Australian Citizenship Act 2007
3
Independent National Security Legislation Monitor Act 2010
19
Intelligence Services Act 2001
19
Part 2--Application and transitional provisions
20
No. , 2019
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
1
A Bill for an Act to amend the
Australian
1
Citizenship Act 2007
, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Australian Citizenship Amendment (Citizenship
5
Cessation)
Act 2019
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
No. , 2019
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments
Schedule 1
Amendments
Part 1
No. , 2019
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
3
Schedule 1--Amendments
1
Part 1--Amendments
2
Australian Citizenship Act 2007
3
1 Subsection 29(2) (note 2)
4
Omit ", 34A or 35", substitute "or 34A".
5
2 Section 32A (heading)
6
Repeal the heading, substitute:
7
Subdivision A--Simplified outline of this Division
8
32A Simplified outline of this Division
9
3 Section 32A
10
Omit:
11
•
you engage in various kinds of conduct inconsistent with
12
allegiance to Australia: see sections 33AA, 35 and 35A; or
13
4 Section 32A
14
Omit "section 36.", substitute "section 36; or".
15
5 At the end of section 32A
16
Add:
17
•
for certain conduct or convictions, the Minister can make a
18
determination ceasing your citizenship if the Minister is
19
satisfied you have repudiated your allegiance to Australia and
20
that it would be contrary to the public interest for you to
21
remain an Australia citizen: see Subdivision C (citizenship
22
cessation determinations).
23
6 After section 32A
24
Insert:
25
Schedule 1
Amendments
Part 1
Amendments
4
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
No. , 2019
Subdivision B--Citizenship renunciation and revocation
1
7 Section 33AA
2
Repeal the section.
3
8 Sections 35 to 35B
4
Repeal the sections.
5
9 Section 36A
6
Repeal the section, substitute:
7
Subdivision C--Citizenship cessation determinations
8
36A Purpose of this Subdivision
9
This Subdivision is enacted because the Parliament recognises that
10
Australian citizenship is a common bond, involving reciprocal
11
rights and obligations, and that citizens may, through certain
12
conduct incompatible with the shared values of the Australian
13
community, demonstrate that they have severed that bond and
14
repudiated their allegiance to Australia.
15
36B Citizenship cessation determination for certain conduct
16
Cessation of citizenship on determination by Minister
17
(1) The Minister may determine in writing that a person aged 14 or
18
older ceases to be an Australian citizen if the Minister is satisfied
19
that:
20
(a) the person:
21
(i) engaged in conduct specified in subsection (5) while
22
outside Australia; or
23
(ii) engaged in conduct specified in any of paragraphs (5)(a)
24
to (h) while in Australia, has since left Australia and has
25
not been tried for an offence in relation to the conduct;
26
and
27
(b) the conduct demonstrates that the person has repudiated their
28
allegiance to Australia; and
29
(c) it would be contrary to the public interest for the person to
30
remain an Australian citizen (see section 36E).
31
Amendments
Schedule 1
Amendments
Part 1
No. , 2019
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
5
Note:
A person may seek review of a determination made under this
1
subsection in the High Court of Australia under section 75 of the
2
Constitution, or in the Federal Court of Australia under section 39B of
3
the
Judiciary Act 1903
. See also section 36H of this Act (revocation of
4
citizenship cessation determination on application to Minister).
5
(2) However, the Minister must not make a determination if the
6
Minister is satisfied that the person would, if the Minister were to
7
make the determination, become a person who is not a national or
8
citizen of any country.
9
(3) The person ceases to be an Australian citizen at the time the
10
determination is made.
11
(4) Subsection (1) applies to a person who is an Australian citizen
12
regardless of how the person became an Australian citizen
13
(including a person who became an Australian citizen upon the
14
person's birth).
15
(5) For the purposes of paragraph (1)(a), the conduct is any of the
16
following:
17
(a) engaging in international terrorist activities using explosive
18
or lethal devices;
19
(b) engaging in a terrorist act;
20
(c) providing or receiving training connected with preparation
21
for, engagement in, or assistance in a terrorist act;
22
(d) directing the activities of a terrorist organisation;
23
(e) recruiting for a terrorist organisation;
24
(f) financing terrorism;
25
(g) financing a terrorist;
26
(h) engaging in foreign incursions and recruitment;
27
(i) fighting for, or being in the service of, a declared terrorist
28
organisation (see section 36C);
29
(j) serving in the armed forces of a country at war with
30
Australia.
31
Note 1:
A determination may be made in relation to conduct specified in
32
subsection (5) that was engaged in before the subsection commenced
33
(see item 18 of Schedule 1 to the
Australian Citizenship Amendment
34
(Citizenship Cessation) Act 2019
).
35
Note 2:
This section does not apply to conduct of Australian law enforcement
36
or intelligence bodies, or to conduct in the course of certain duties to
37
the Commonwealth (see subsection (8)).
38
Schedule 1
Amendments
Part 1
Amendments
6
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
No. , 2019
(6) Words and expressions used in paragraphs (5)(a) to (h) have the
1
same meanings as in Subdivision A of Division 72, sections 101.1,
2
101.2, 102.2, 102.4, 103.1 and 103.2 and Division 119 of the
3
Criminal Code
, respectively. However (to avoid doubt) this does
4
not include the fault elements that apply under the
Criminal Code
5
in relation to those provisions of the
Criminal Code
.
6
(7) For the purposes of paragraph (5)(i) and without limitation, a
7
person is not in the service of a declared terrorist organisation to
8
the extent that:
9
(a) the person's actions are unintentional; or
10
(b) the person is acting under duress or force; or
11
(c) the person is providing neutral and independent humanitarian
12
assistance.
13
(8) This section does not apply to conduct engaged in by:
14
(a) a person in the proper performance of a function of a body,
15
agency or organisation of the Commonwealth, or of a State or
16
Territory, that is responsible for, or deals with, law
17
enforcement, criminal intelligence, criminal investigation,
18
fraud, security intelligence, foreign intelligence or financial
19
intelligence; or
20
(b) a person acting in the course of the person's duty to the
21
Commonwealth in relation to the defence, security or
22
international relations of Australia.
23
General provisions relating to Minister's powers
24
(9) The powers of the Minister under this section may only be
25
exercised by the Minister personally.
26
(10) Section 47 (notification of decisions) does not apply to a decision
27
of the Minister under this section (see section 36F instead).
28
(11) The rules of natural justice do not apply in relation to making a
29
decision or exercising a power under this section.
30
(12) A determination made under subsection (1) is not a legislative
31
instrument.
32
Amendments
Schedule 1
Amendments
Part 1
No. , 2019
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
7
36C Declared terrorist organisation
1
Declaration of declared terrorist organisation
2
(1) A
declared terrorist organisation
is any terrorist organisation,
3
within the meaning of paragraph (b) of the definition of
terrorist
4
organisation
in subsection 102.1(1) of the
Criminal Code
, that the
5
Minister, by legislative instrument, declares is a declared terrorist
6
organisation for the purposes of this section.
7
(2) Before declaring that an organisation is a declared terrorist
8
organisation, the Minister must be satisfied on reasonable grounds
9
that the organisation:
10
(a) either:
11
(i) is directly or indirectly engaged in, preparing, planning,
12
assisting in or fostering the doing of a terrorist act; or
13
(ii) advocates the doing of a terrorist act; and
14
(b) is opposed to Australia, or to Australia's interests, values,
15
democratic beliefs, rights or liberties, so that if a person were
16
to fight for or be in the service of such an organisation the
17
person would be repudiating their allegiance to Australia.
18
(3) The making of a declaration under subsection (1) is taken not to be
19
prescribed administrative action for the purposes of Part IV of the
20
Australian Security Intelligence Organisation Act 1979
.
21
Review of declaration by Parliamentary Joint Committee on
22
Intelligence and Security
23
(4) The Parliamentary Joint Committee on Intelligence and Security
24
may:
25
(a) review a declaration made under subsection (1) as soon as
26
possible after the declaration is made; and
27
(b) report the Committee's comments and recommendations to
28
each House of the Parliament before the end of the period
29
during which the House may disallow the declaration.
30
Schedule 1
Amendments
Part 1
Amendments
8
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
No. , 2019
36D Citizenship cessation determination for certain convictions
1
Cessation of citizenship on determination by Minister
2
(1) The Minister may determine in writing that a person ceases to be
3
an Australian citizen if:
4
(a) the person has been convicted of an offence, or offences,
5
against one or more of the provisions specified in
6
subsection (5); and
7
(b) the person has, in respect of the conviction or convictions,
8
been sentenced to a period of imprisonment of at least 3
9
years, or to periods of imprisonment that total at least 3
10
years; and
11
(c) the Minister is satisfied that the conduct of the person to
12
which the conviction or convictions relate demonstrates that
13
the person has repudiated their allegiance to Australia; and
14
(d) the Minister is satisfied that it would be contrary to the public
15
interest for the person to remain an Australian citizen (see
16
section 36E).
17
Note:
A person may seek review of a determination made under this
18
subsection in the High Court of Australia under section 75 of the
19
Constitution, or in the Federal Court of Australia under section 39B of
20
the
Judiciary Act 1903
. See also section 36H of this Act (revocation of
21
citizenship cessation determination on application to Minister).
22
(2) However, the Minister must not make a determination if the
23
Minister is satisfied that the person would, if the Minister were to
24
make the determination, become a person who is not a national or
25
citizen of any country.
26
(3) The person ceases to be an Australian citizen at the time the
27
determination is made.
28
(4) Subsection (1) applies to a person who is an Australian citizen
29
regardless of how the person became an Australian citizen
30
(including a person who became an Australian citizen upon the
31
person's birth).
32
(5) For the purposes of paragraph (1)(a), the provisions are the
33
following:
34
(a) a provision of Subdivision A of Division 72 of the
Criminal
35
Code
(explosives and lethal devices);
36
Amendments
Schedule 1
Amendments
Part 1
No. , 2019
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
9
(b) a provision of Subdivision B of Division 80 of the
Criminal
1
Code
(treason);
2
(c) a provision of Division 82 of the
Criminal Code
(sabotage),
3
other than section 82.9;
4
(d) a provision of Division 91 of the
Criminal Code
(espionage);
5
(e) a provision of Division 92 of the
Criminal Code
(foreign
6
interference);
7
(f) a provision of Part 5.3 of the
Criminal Code
(terrorism),
8
other than section 102.8 or Division 104 or 105;
9
(g) a provision of Part 5.5 of the
Criminal Code
(foreign
10
incursions and recruitment);
11
(h) section 6 or 7 of the repealed
Crimes (Foreign Incursions
12
and Recruitment) Act 1978
.
13
Note:
A determination may be made in relation to a conviction for an
14
offence against a provision specified in subsection (5) that occurred
15
before the subsection commenced (see item 19 of Schedule 1 to the
16
Australian Citizenship Amendment (Citizenship Cessation)
Act 2019
).
17
(6) For the purposes of paragraph (1)(b):
18
(a) the reference to being sentenced to a period of imprisonment
19
does not include a suspended sentence; and
20
(b) if a single sentence of imprisonment is imposed in respect of
21
both an offence against a provision specified in
22
subsection (5) and in respect of one or more other offences,
23
then:
24
(i) if it is clear that only a particular part of the total period
25
of imprisonment relates to the offence against the
26
provision specified in subsection (5)--the person is
27
taken to have been sentenced to imprisonment in respect
28
of that offence for that part of the total period of
29
imprisonment; and
30
(ii) if subparagraph (i) does not apply--the person is taken
31
to have been sentenced to imprisonment in respect of
32
the offence against the provision specified in
33
subsection (5) for the whole of the total period of
34
imprisonment.
35
General provisions relating to Minister's powers
36
(7) The powers of the Minister under this section may only be
37
exercised by the Minister personally.
38
Schedule 1
Amendments
Part 1
Amendments
10
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
No. , 2019
(8) Section 47 (notification of decisions) does not apply to a decision
1
of the Minister under this section (see section 36F instead).
2
(9) The rules of natural justice do not apply in relation to making a
3
decision or exercising a power under this section.
4
(10) A determination made under subsection (1) is not a legislative
5
instrument.
6
36E Public interest in making or revoking citizenship cessation
7
determinations
8
(1) This section applies when the Minister is considering the public
9
interest for the purposes of deciding whether to make a
10
determination under subsection 36B(1) or 36D(1), or whether to
11
revoke such a determination.
12
Note:
See paragraphs 36B(1)(c), 36D(1)(d) and 36H(3)(b) and
13
subsection 36J(1).
14
(2) The Minister must have regard to the following matters:
15
(a) in deciding whether to make a determination under
16
subsection 36B(1) or revoke such a determination--the
17
severity of the conduct to which the determination relates;
18
(b) in deciding whether to make a determination under
19
subsection 36D(1) or revoke such a determination--the
20
severity of the conduct that was the basis of the conviction or
21
convictions, and the sentence or sentences, to which the
22
determination relates;
23
(c) the degree of threat posed by the person to the Australian
24
community;
25
(d) the age of the person;
26
(e) if the person is aged under 18--the best interests of the child
27
as a primary consideration;
28
(f) in deciding whether to make a determination under
29
subsection 36B(1) or revoke such a determination--whether
30
the person is being or is likely to be prosecuted in relation to
31
conduct to which the determination relates;
32
(g) the person's connection to the other country of which the
33
person is a national or citizen and the availability of the rights
34
of citizenship of that country to the person;
35
(h) Australia's international relations;
36
Amendments
Schedule 1
Amendments
Part 1
No. , 2019
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
11
(i) any other matters of public interest.
1
36F Notice of citizenship cessation
2
Requirement to give notice
3
(1) If the Minister makes a determination under subsection 36B(1) or
4
36D(1) because of which a person ceases to be an Australian
5
citizen, the Minister:
6
(a) must give written notice of the determination to the person:
7
(i) as soon as practicable after the determination is made;
8
or
9
(ii) if the Minister makes a determination under
10
subsection 36G(1) (that notice should not be given to
11
the person)--as soon as practicable after the
12
determination under that subsection is revoked; and
13
(b) may give notice of the determination to such other persons
14
and at such time as the Minister considers appropriate.
15
Method for giving notice
16
(2) A notice under paragraph (1)(a) must be given to the person by
17
sending it by pre-paid post to the address of the place of residence
18
of the person last known to the Department.
19
(3) The Minister may, after giving the notice in accordance with
20
subsection (2), give the notice again by sending it to an electronic
21
address for the person if:
22
(a) the Minister is satisfied the person did not receive the notice
23
given in accordance with that subsection; and
24
(b) the Minister has become aware of the electronic address for
25
the person.
26
(4) Despite subsection (2), the Minister may give the notice by sending
27
it to an electronic address for the person without sending it in
28
accordance with that subsection if:
29
(a) the Minister becomes aware of the electronic address for the
30
person while a determination is in force under
31
subsection 36G(1) (that notice should not be given to the
32
person); and
33
(b) that determination is revoked.
34
Schedule 1
Amendments
Part 1
Amendments
12
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
No. , 2019
Content of notice
1
(5) A notice under paragraph (1)(a) must:
2
(a) state that the Minister has determined under
3
subsection 36B(1) or 36D(1) (as applicable) that the person
4
has ceased to be an Australian citizen; and
5
(b) for a determination under subsection 36B(1)--contain a basic
6
description of the conduct to which the determination relates;
7
and
8
(c) for a determination under subsection 36D(1)--specify the
9
conviction or convictions, and sentence or sentences, to
10
which the determination relates; and
11
(d) specify the date of the notice; and
12
(e) set out the person's rights of review.
13
(6) However, the notice must not contain information, or content of a
14
document, if:
15
(a) the information or content includes any operationally
16
sensitive information (within the meaning of the
Independent
17
National Security Legislation Monitor Act 2010
); or
18
(b) the disclosure of the information or content could prejudice:
19
(i) the security, defence or international relations of
20
Australia; or
21
(ii) the performance by a law enforcement or security
22
agency (within the meaning of the
Independent National
23
Security Legislation Monitor Act 2010
) of its functions;
24
or
25
(c) the disclosure of the information or content could endanger a
26
person's safety; or
27
(d) the disclosure of the information or content would be likely
28
to be contrary to the public interest for any other reason.
29
General provisions relating to Minister's powers
30
(7) The rules of natural justice do not apply in relation to making a
31
decision or exercising a power under this section.
32
Amendments
Schedule 1
Amendments
Part 1
No. , 2019
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
13
36G Determination that notice of citizenship cessation should not be
1
given
2
(1) The Minister may determine in writing that a notice under
3
paragraph 36F(1)(a) should not be given to a person if the Minister
4
is satisfied that giving the notice could prejudice the security,
5
defence or international relations of Australia, or Australian law
6
enforcement operations.
7
(2) The Minister must consider whether to revoke the determination at
8
least every 90 days after making it.
9
(3) If the Minister does not revoke the determination within 5 years of
10
making it, the determination is taken to be revoked at the end of the
11
5 years unless the Minister extends the determination under
12
subsection (4).
13
(4) If, before the determination is taken to be revoked under
14
subsection (3), the Minister remains satisfied that giving the notice
15
could prejudice the security, defence or international relations of
16
Australia, or Australian law enforcement operations, the Minister
17
may extend the determination for 1 year by making a determination
18
in writing to that effect.
19
(5) If the Minister extends the determination for 1 year under
20
subsection (4):
21
(a) the Minister must consider whether to revoke the
22
determination at least every 90 days after extending it; and
23
(b) the determination is taken to be revoked at the end of that
24
year.
25
(6) The powers of the Minister under this section may only be
26
exercised by the Minister personally.
27
(7) Section 47 (notification of decisions) does not apply to a decision
28
of the Minister under this section.
29
(8) The rules of natural justice do not apply in relation to making a
30
decision or exercising a power under this section.
31
(9) A determination made under subsection (1) or (4) is not a
32
legislative instrument.
33
Schedule 1
Amendments
Part 1
Amendments
14
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
No. , 2019
36H Revocation of citizenship cessation determination on
1
application to Minister
2
(1) A person who has ceased to be an Australian citizen because of a
3
determination made under subsection 36B(1) or 36D(1) may apply
4
in writing to the Minister to have the determination revoked.
5
Section 46 (application requirements) does not apply to the
6
application.
7
(2) The application must be made no later than the later of the
8
following:
9
(a) 90 days after the date of the notice given under
10
paragraph 36F(1)(a) in relation to the determination;
11
(b) if the notice was given to the person again by sending it to an
12
electronic address in accordance with subsection 36F(3)--30
13
days after the day the notice was sent to the electronic
14
address.
15
(3) The Minister must consider the application and either revoke the
16
determination or refuse the application. The Minister:
17
(a) must revoke the determination if:
18
(i) the Minister is satisfied that, at the time the
19
determination was made, the person was not a national
20
or citizen of any other country; or
21
(ii) for a determination made under subsection 36B(1)--the
22
Minister is satisfied that the person did not engage in the
23
conduct to which the determination relates; and
24
(b) may revoke the determination if paragraph (a) of this
25
subsection does not apply, but only if satisfied that revoking
26
the determination would be in the public interest (see
27
section 36E).
28
Note:
The Minister must observe the rules of natural justice in making the
29
decision.
30
(4) The Minister must give the person written notice of the Minister's
31
decision under subsection (3). The notice must:
32
(a) set out the decision; and
33
(b) if the Minister refused the application:
34
(i) include the reasons for the decision; and
35
(ii) set out the person's rights of review.
36
Amendments
Schedule 1
Amendments
Part 1
No. , 2019
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
15
Section 47 (notification of decisions) does not apply in relation to a
1
decision under this section.
2
Note:
A person may seek review of a decision made under subsection (3) in
3
the High Court of Australia under section 75 of the Constitution, or in
4
the Federal Court of Australia under section 39B of the
Judiciary Act
5
1903
.
6
(5) However, the notice must not contain information, or content of a
7
document, if:
8
(a) the information or content includes any operationally
9
sensitive information (within the meaning of the
Independent
10
National Security Legislation Monitor Act 2010
); or
11
(b) the disclosure of the information or content could prejudice:
12
(i) the security, defence or international relations of
13
Australia; or
14
(ii) the performance by a law enforcement or security
15
agency (within the meaning of the
Independent National
16
Security Legislation Monitor Act 2010
) of its functions;
17
or
18
(c) the disclosure of the information or content could endanger a
19
person's safety; or
20
(d) the disclosure of the information or content would be likely
21
to be contrary to the public interest for any other reason.
22
(6) If the Minister revokes the determination under subsection (3), the
23
person's citizenship is taken never to have ceased under
24
section 36B or 36D (as applicable) because of the determination.
25
However, the validity of anything done in reliance on the
26
determination before the revocation is not affected.
27
(7) The person may only apply once to the Minister under
28
subsection (1) in relation to the determination.
29
(8) The powers of the Minister under this section may only be
30
exercised by the Minister personally.
31
36J Revocation of citizenship cessation determination on Minister's
32
initiative
33
(1) The Minister may, on the Minister's own initiative, revoke a
34
determination made under subsection 36B(1) or 36D(1) if the
35
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Minister is satisfied that revoking the determination would be in
1
the public interest (see section 36E).
2
(2) If the Minister revokes the determination under subsection (1), the
3
person's citizenship is taken never to have ceased under
4
section 36B or 36D (as applicable) because of the determination.
5
However, the validity of anything done in reliance on the
6
determination before the revocation is not affected.
7
(3) If the Minister decides under subsection (1) to revoke the
8
determination, the Minister:
9
(a) must give the person written notice of the decision if the
10
person was given notice under paragraph 35C(1)(a) of the
11
determination; and
12
(b) must not otherwise give the person notice of the decision.
13
Section 47 (notification of decisions) does not apply in relation to a
14
decision under subsection (1).
15
(4) However, the notice must not contain information, or content of a
16
document, if:
17
(a) the information or content includes any operationally
18
sensitive information (within the meaning of the
Independent
19
National Security Legislation Monitor Act 2010
); or
20
(b) the disclosure of the information or content could prejudice:
21
(i) the security, defence or international relations of
22
Australia; or
23
(ii) the performance by a law enforcement or security
24
agency (within the meaning of the
Independent National
25
Security Legislation Monitor Act 2010
) of its functions;
26
or
27
(c) the disclosure of the information or content could endanger a
28
person's safety; or
29
(d) the disclosure of the information or content would be likely
30
to be contrary to the public interest for any other reason.
31
(5) The Minister does not have a duty to consider whether to exercise
32
the power under subsection (1) in respect of any person, whether
33
the Minister is requested to do so by the person whose citizenship
34
ceased because of the determination, or by any other person, or in
35
any other circumstances.
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17
(6) To avoid doubt, in deciding whether to consider exercising the
1
power under subsection (1), the Minister is not required to have
2
regard to any of the matters referred to in section 36E.
3
(7) The rules of natural justice do not apply in relation to making a
4
decision or exercising a power under this section.
5
(8) The powers of the Minister under this section may only be
6
exercised by the Minister personally.
7
36K Automatic revocation of citizenship cessation determination
8
(1) A determination made under subsection 36B(1) or 36D(1) because
9
of which a person has ceased to be an Australian citizen is taken to
10
be revoked (without any decision or exercise of power by the
11
Minister) if any of the following events occurs:
12
(a) for a determination under subsection 36B(1)--in proceedings
13
under section 75 of the Constitution, or under this Act or
14
another Commonwealth Act, a court finds that the person did
15
not engage in the conduct to which the determination relates;
16
(b) for a determination under subsection 36D(1)--both:
17
(i) a decision of a court has overturned or quashed the
18
conviction, or each conviction, to which the
19
determination relates, or has reduced the sentence, or
20
each sentence, to which the determination relates below
21
the period specified in paragraph 36D(1)(b); and
22
(ii) the time for appealing, or applying for leave to appeal,
23
the decision has expired without an appeal or
24
application being lodged, or the decision is not
25
appellable;
26
(c) in proceedings under section 75 of the Constitution, or under
27
this Act or another Commonwealth Act, a court finds that the
28
person was not a national or citizen of a country other than
29
Australia at the time the determination was made;
30
(d) a declaration under section 36C (declared terrorist
31
organisation) is disallowed by either House of the Parliament
32
and the determination would not have been made if that
33
declaration had not been made.
34
(2) If an event mentioned in subsection (1) occurs in relation to a
35
determination, the person's citizenship is taken never to have
36
ceased under section 36B or 36D (as applicable) because of the
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determination. However, the validity of anything done in reliance
1
on the determination before the event occurred is not affected.
2
36L No resumption of citizenship if citizenship ceases under this
3
Subdivision
4
If a person ceases to be an Australian citizen under this
5
Subdivision, Divisions 1 and 2 of this Part do not apply in relation
6
to the person after that cessation.
7
Note:
The effect of this section is that, unless a determination under
8
section 36B or 36D is revoked (see sections 36H, 36J and 36K), the
9
person can never become an Australian citizen again.
10
10 After subsection 48(5)
11
Insert:
12
Exceptions
13
(5A) This section does not apply in relation to anything done under
14
Subdivision C of Division 3 of Part 2 (citizenship cessation
15
determinations).
16
11 Subsection 51B(1)
17
Repeal the subsection, substitute:
18
(1) As soon as practicable after each reporting period, the Minister
19
must table a report in each House of the Parliament that sets out the
20
following:
21
(a) the number of notices given by the Minister under
22
paragraph 36F(1)(a) (notice of citizenship cessation) during
23
the reporting period;
24
(b) for each notice that was given under paragraph 36F(1)(a)
25
during the reporting period--a brief statement of the matters
26
that are the basis for the determination to which the notice
27
relates;
28
(c) the number of notices given by the Minister under
29
subsection 36H(4) during the reporting period (notice of
30
decision on application to have citizenship cessation
31
determination revoked).
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12 Subsections 51C(1) and (2)
1
Repeal the subsections, substitute:
2
(1) The Minister must, in writing, inform the Parliamentary Joint
3
Committee on Intelligence and Security as soon as practicable if
4
any of the following events occurs:
5
(a) the Minister gives a person a notice under
6
paragraph 36F(1)(a) (notice of citizenship cessation);
7
(b) the Minister makes a determination under subsection 36G(1)
8
(that notice of citizenship cessation should not be given);
9
(c) the Minister gives a person notice, under subsection 36H(4)
10
or 36J(3), that the Minister has decided to revoke a
11
determination made under subsection 36B(1) or 36D(1).
12
13 Subsection 51C(5)
13
Repeal the subsection, substitute:
14
(5) The briefing must include details of the matters that are the basis
15
for the notice, determination or revocation.
16
Independent National Security Legislation Monitor Act 2010
17
14 Section 4 (paragraph (aa) of the definition of
18
counter-terrorism and national security legislation
)
19
Repeal the paragraph, substitute:
20
(aa) Subdivision C of Division 3 of Part 2 of the
Australian
21
Citizenship Act 2007
(citizenship cessation determinations)
22
and any other provision of that Act as far as it relates to that
23
Subdivision;
24
Intelligence Services Act 2001
25
15 Paragraph 29(1)(ca)
26
Repeal the paragraph, substitute:
27
(ca) to review, by 30 June 2021, the operation, effectiveness and
28
implications of Subdivision C of Division 3 of Part 2 of the
29
Australian Citizenship Act 2007
(citizenship cessation
30
determinations) and any other provision of that Act as far as
31
it relates to that Subdivision; and
32
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Application and transitional provisions
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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
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Part 2--Application and transitional provisions
1
16 Definitions
2
In this Part:
3
Act
means the
Australian Citizenship Act 2007
.
4
amended Act
means the Act as in force after commencement.
5
cessation notice
: see subparagraph (c)(i) of the definition of
designated
6
non-citizen
in this item.
7
commencement
means the time this item commences.
8
designated non-citizen
: a person is a
designated non-citizen
, for
9
conduct engaged in by the person, if:
10
(a) immediately before commencement, the person is not an
11
Australian citizen; and
12
(b) the person ceased to be an Australian citizen under
13
section 33AA or 35 of the Act as in force before
14
commencement because of the conduct; and
15
(c) either:
16
(i) before commencement, the Minister gave, or made
17
reasonable attempts to give, the person a notice under
18
paragraph 33AA(10)(a) or 35(5)(a) of the Act in relation
19
to the conduct (a
cessation notice
); or
20
(ii) immediately before commencement, a determination
21
was in force under subsection 33AA(12) or 35(7) of the
22
Act in relation to the conduct (a
no-notice
23
determination
).
24
Note:
A person who, before commencement, ceased to be an Australian citizen under
25
section 33AA or 35 of the Act because of conduct engaged in by the person might be an
26
Australian citizen again by the time of commencement (see subsections 33AA(24) and
27
35(19) of the Act as in force immediately before commencement). This person is not a
28
designated non-citizen
because paragraph (a) of that definition does not apply to the
29
person.
30
designated non-citizen determination
: see subitem 17(1).
31
no-notice determination
: see subparagraph (c)(ii) of the definition of
32
designated non-citizen
in this item.
33
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Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
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17 Citizenship that ceased under section 33AA or 35 of Act
1
as in force before commencement
2
(1)
At commencement, the Minister is taken to have made a determination
3
(a
designated non-citizen determination
) under subsection 36B(1) of
4
the amended Act in relation to a designated non-citizen. The designated
5
non-citizen determination relates to the conduct for which the person is
6
a designated non-citizen.
7
(2)
After commencement, the amended Act applies as if the designated
8
non-citizen determination had been made under subsection 36B(1) of
9
the amended Act.
10
(3)
If the Minister gave, or made reasonable attempts to give, the person a
11
cessation notice in relation to the conduct to which the designated
12
non-citizen determination relates:
13
(a) the cessation notice:
14
(i) is taken to have been given under section 36F of the
15
amended Act; and
16
(ii) is taken to have been given at the time the Minister
17
gave, or first reasonably attempted to give, the notice to
18
the person under the Act as in force before
19
commencement; and
20
(b) the person cannot apply under section 36H of the amended
21
Act to have the designated non-citizen determination
22
revoked.
23
(4)
A no-notice determination continues in force after commencement
24
despite the amendments made by this Schedule, as if the no-notice
25
determination had been made under subsection 36G(1) of the amended
26
Act at the time it was made under the Act as in force before
27
commencement.
28
Note:
Among other things, this means that the 5 year period in which the Minister must
29
consider whether to revoke the determination at least every 90 days continues until the
30
end of the 5 years rather than re-starting at commencement. The Minister may also
31
decide to extend the determination under subsection 36G(4) of the amended Act.
32
(5)
For a person who is a designated non-citizen:
33
(a) the designated non-citizen determination in relation to the
34
person does not alter the time the person's citizenship ceased
35
under section 33AA or 35 of the Act as in force before
36
commencement; and
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(b) the person remains at all times a person who is not an
1
Australian citizen, unless the designated non-citizen
2
determination is revoked under section 36H, 36J or 36K of
3
the amended Act.
4
(6)
To avoid doubt, at commencement, the Act as in force immediately
5
before commencement ceases to apply in relation to anything to which
6
the amended Act applies in accordance with subitems (1) to (5).
7
(7)
The operation of section 33AA of the Act before commencement in
8
relation to conduct engaged in by a person is to be disregarded for all
9
purposes if, before commencement, the Minister:
10
(a) did not give or make reasonable attempts to give the person a
11
notice under paragraph 33AA(10)(a) of the Act in relation to
12
the conduct; and
13
(b) did not make a determination under subsection 33AA(12) of
14
the Act in relation to the conduct.
15
(8)
If, before commencement, the Minister exempted a person from the
16
operation of section 33AA of the Act in relation to conduct engaged in
17
by the person, the Minister must not make a determination under
18
section 36B of the amended Act in relation to the conduct.
19
(9)
The operation of section 35 of the Act before commencement in relation
20
to conduct engaged in by a person is to be disregarded for all purposes
21
if, before commencement, the Minister:
22
(a) did not give or make reasonable attempts to give the person a
23
notice under paragraph 35(5)(a) of the Act in relation to the
24
conduct; and
25
(b) did not make a determination under subsection 35(7) of the
26
Act in relation to the conduct.
27
(10)
If, before commencement, the Minister exempted a person from the
28
operation of section 35 of the Act in relation to conduct engaged in by
29
the person, the Minister must not make a determination under
30
section 36B of the amended Act in relation to the conduct.
31
18 Application of section 36B of amended Act
32
(1)
Section 36B of the amended Act applies in relation to conduct specified
33
in any of paragraphs (5)(a) to (h) of that section, if:
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23
(a) the conduct was engaged in on or after 29 May 2003
1
(whether the conduct commenced before, on or after that
2
date); and
3
(b) the conduct is not conduct to which a designated non-citizen
4
determination relates.
5
(2)
Section 36B of the amended Act applies in relation to conduct specified
6
in paragraph (5)(i) of that section, if:
7
(a) the conduct was engaged in on or after 12 December 2015
8
(whether the conduct commenced before, on or after that
9
date); and
10
(b) the conduct is not conduct to which a designated non-citizen
11
determination relates.
12
(3)
Section 36B of the amended Act applies in relation to conduct specified
13
in paragraph (5)(j) of that section whether the conduct was engaged in
14
before or after commencement, unless a designated non-citizen
15
determination relates to the conduct.
16
19 Application of section 36D of amended Act
17
Section 36D of the amended Act applies in relation to a conviction of a
18
person:
19
(a) that occurs after commencement; or
20
(b) that occurred before commencement, if:
21
(i) the conviction occurred on or after 29 May 2003; and
22
(ii) the person was sentenced to a period of imprisonment of
23
at least 3 years, or to periods of imprisonment that total
24
at least 3 years, in respect of the conviction.
25
20 Declared terrorist organisations
26
Despite the repeal of section 35AA of the Act by this Schedule, a
27
declaration in force under that section immediately before
28
commencement continues in force, after commencement, as if it had
29
been made under section 36C of the amended Act.
30
21 Section 51B report
31
A report prepared for the purposes of section 51B of the amended Act
32
in relation to the reporting period in which commencement occurs must
33
set out:
34
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Application and transitional provisions
24
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
No. , 2019
(a) for the part of the reporting period that occurs before
1
commencement--the matters required by subsection 51B(1)
2
of the Act as in force immediately before commencement;
3
and
4
(b) for the part of the reporting period that occurs after
5
commencement--the matters required by subsection 51B(1)
6
of the amended Act.
7
22 Australian citizenship
8
The amendments of the Act made by this Schedule apply in relation to a
9
person, in accordance with this Part, regardless of:
10
(a) whether the person became an Australian citizen before or
11
after commencement; or
12
(b) whether the person ceased to be an Australian citizen before
13
commencement.
14