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.
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.
The effect of the Act will be to allow the Minister to cease the citizenship of a person on two separate grounds:
Relevantly, for both grounds of cessation, the Minister must also be satisfied that:
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.
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:
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:
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.”
The Bill Digest states that the Act predominantly replicates the old provisions under the Citizenship Act for conviction-cessation with two key exceptions:
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.”
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.
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Australian Citizenship Amendment (Citizenship Cessation) Act 2020, Bill and and additional materials available from TimeBase’s LawOne Service
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