New CTH Act to Amend Citizenship Cessation Provisions

Tuesday 29 September 2020 @ 4.06 p.m. | Legal Research | Immigration

On 17 September, the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) (‘the Amending Act’) was assented as Act 88 of 2020, following the passing of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2020 on 3 September.

Purpose of the Act

In 2019, the Independent National Security Legislation Monitor (INSLM) undertook a comprehensive review of the effectiveness of citizenship loss provisions under the Australian Citizenship Act 2007 (Cth) (‘the Citizenship Act’). The primary purpose of the Amending Act is to amend the Citizenship Act in order to implement the recommendation of the INSLM to replace the current ‘operation of law’ model for citizenship cessation with a Ministerial decision model. Prior to the Amending Act, the ‘operation of law’ model established statutory mechanisms for the automatic renouncement of a dual-national’s Australian citizenship because of specific conduct. 

As well as introducing this new model the Amending Act will also amend the processes relating to the giving of notice of a cessation determination. The new conduct-related provisions will apply retrospectively (in most cases, to conduct that occurred on or after 29 May 2003) and the extent to which the conviction-related provisions apply retrospectively will be increased.

What is the basis for a Ministerial cessation determination?

The effect of the Act will be to allow the Minister to cease the citizenship of a person on two separate grounds:

  1. Conduct-based cessation, or
  2. Conviction-based cessation.

Relevantly, for both grounds of cessation, the Minister must also be satisfied that:

  1. The relevant conduct indicates a repudiation of the person’s allegiance to Australia and
  2. Allowing the person to remain an Australian citizen would act contrary to public interest.

Furthermore, under both grounds of cessation, the Minister cannot make a cessation determination if the Minister is satisfied that the person would become a person who is not a national or citizen of any country. 

What conduct is capable of constituting grounds for a Ministerial cessation determination?

In addition to the conditions listed above, a determination cannot be granted to a person of less than 14 years of age. There are two broad categories of conduct that can constitute grounds for cessation:

  1. Conduct performed outside Australia and
  2. Conduct performed while in Australia where the person has since left Australia and has not been subsequently tried for an offence relating to the conduct.

The Act provides an exhaustive list for types of conduct for each category. For example, relevant conduct includes engaging in international terrorist activities using explosive or lethal device, financing terrorism, directing terrorist activities and engaging in a terrorist act.

A notable change made by the Act is the repeal of requirements of requisite intention. Prior to the Act, conduct-based cessation was qualified by the requirement that the person carried out the conduct with the intention of advancing a political, religious or ideological cause and with the intention of either:

  1.  coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
  2. intimidating the public or a section of the public.

The justification for removing the intent requirement is stated in the Explanatory Memorandum:

“The omission of the intent element from new section 36B is supported by the requirement that a person has repudiated their allegiance to Australia, as it serves to narrow the class of people that may otherwise be subject to the provisions.”

What is the test for conviction-based cessation?

The Bill Digest states that the Act predominantly replicates the old provisions under the Citizenship Act for conviction-cessation with two key exceptions:

  1. The minimum sentence threshold will be reduced from 6 to 3 years.
  2. The “statelessness test” will be amended.

Regarding the justification for the reduced minimum threshold, the Bills Digest states that the Government has provided limited justificatiog, stating that the revised threshold ‘reflects the seriousness of a criminal conviction for a terrorism offence’. 

With regards to the statelessness test, prior to the Act, a dual-citizen requirement was a precondition to the Minister’s decision, similar to the age requirement. The Explanatory Memorandum states that the Act amends the language of the test stating “the Minister needs to be satisfied that the person would not become a person who is not a national or citizen of any country. The Minister will be required to turn his or her mind to the issue, using the materials available to him or her at the time.”

Can you challenge a Ministerial cessation determination?

The Act expressly states that rules of natural justice do not apply in relation to the Minister declaring cessation declarations. The Bill Digest states that this means the Minister is not required to advise the person of the case against them, and provide an opportunity to respond, prior to making a decision. However, the Act establishes a process by which a person whose citizenship ceases may apply to the Minister to request this be revoked. Where such an application is made, the Minister is required to observe the rules of natural justice.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Australian Citizenship Amendment (Citizenship Cessation) Act 2020, Bill and and additional materials available from TimeBase’s LawOne Service

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