Australian Citizenship Amendment (Citizenship Repudiation) Act 2023

36B  Cessation of citizenship if citizenship cessation order made by court etc.

             (1)  Subject to this section, if an order is made under subsection 36C(1) in relation to a person, the person ceases to be an Australian citizen at the time the order is made.

Order overturned or quashed

             (2)  If a decision of a court overturns or quashes the order made under subsection 36C(1), the person’s citizenship is taken never to have ceased under subsection (1) of this section.

             (3)  The validity of anything done in reliance on the order made under subsection 36C(1) before the order was overturned or quashed is not affected.

Appeal decision

             (4)  If:

                     (a)  a decision (the first decision) of a court overturning or quashing the order made under subsection 36C(1) in relation to the person is appealed; and

                     (b)  the decision (the second decision) on appeal overturns or quashes the first decision;

the person ceases to be an Australian citizen at the time the second decision is made.

36C  Citizenship cessation order if person is convicted of serious offence

             (1)  If:

                     (a)  a person is convicted of one or more serious offences; and

                     (b)  the court has decided to impose on the person, in respect of the conviction or convictions, a period of imprisonment that is at least 3 years or periods of imprisonment that total at least 3 years; and

                     (c)  before the court imposes the sentence or sentences on the person in respect of the conviction or convictions, the Minister makes an application under subsection 36D(1) for an order to be made under this subsection in relation to the person; and

                     (d)  the court is satisfied of the matters specified in subsection (4) of this section;

the court may, when imposing such a period or periods of imprisonment on the person in respect of the conviction or convictions, also order at that time as part of the sentence or sentences that the person ceases to be an Australian citizen.

Note:          Subsections (5) and (6) set out, without limitation, matters the court must have regard to in deciding whether to make an order under this subsection.

             (2)  However, the court must not make an order under subsection (1) in relation to the person if the court is satisfied that the person would, if the court were to make the order, become a person who is not a national or citizen of any country.

Serious offence

             (3)  A serious offence is an offence against any of the following provisions:

                     (a)  a provision of Subdivision A of Division 72 of the Criminal Code (explosives and lethal devices);

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

                     (c)  section 83.1 of the Criminal Code (advocating mutiny);

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

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

                      (f)  a provision of Part 5.3 of the Criminal Code (terrorism), other than the following provisions:

                              (i)  section 102.8;

                             (ii)  Division 104;

                            (iii)  Division 105;

                            (iv)  section 105A.7D;

                             (v)  section 105A.18B;

                     (g)  a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment).

Court to be satisfied of certain matters etc.

             (4)  For the purposes of paragraph (1)(d), the matters are the following:

                     (a)  the person is aged 14 or over;

                     (b)  the person is an Australian citizen;

                     (c)  the person’s conduct to which the conviction or convictions relate is so serious and significant that it demonstrates that the person has repudiated their allegiance to Australia.

             (5)  In deciding whether the court is satisfied of the matter referred to in paragraph (4)(c) in relation to the person’s conduct, the court must have regard to the following matters:

                     (a)  whether the conduct to which the conviction or convictions relate demonstrates a repudiation of the values, democratic beliefs, rights and liberties that underpin Australian society;

                     (b)  the degree, duration or scale of the person’s commitment to, or involvement in, the conduct to which the conviction or convictions relate;

                     (c)  the intended scale of the conduct to which the conviction or convictions relate;

                     (d)  the actual impact of the conduct to which the conviction or convictions relate;

                     (e)  whether the conduct to which the conviction or convictions relate caused, or was intended to cause, harm to human life or a loss of human life.

             (6)  In deciding whether to make an order under subsection (1) in relation to the person, the court must have regard to the following matters:

                     (a)  if the person is a child aged under 18—the best interests of the child;

                     (b)  if the person has any dependent children in Australia—the best interests of those children;

                     (c)  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.

             (7)  Subsection (6) does not limit the matters to which the court may have regard in deciding whether to make an order under subsection (1) in relation to the person.

Concurrent sentences

             (8)  If:

                     (a)  a person has been convicted of 2 or more serious offences; and

                     (b)  a court has decided to impose on the person, in respect of the conviction or convictions, 2 or more periods of imprisonment to be served concurrently (whether in whole or in part);

then, for the purposes of subsection (1), the whole of each period is to be counted in working out the total of those periods.

Example:    A person is convicted of 2 serious offences and a court has decided to impose on the person in respect of the convictions 2 periods of 2 years imprisonment to be served concurrently. For the purposes of subsection (1), the total period of imprisonment is 4 years.

References to period of imprisonment

             (9)  For the purposes of subsection (1):

                     (a)  a reference to a period of imprisonment in that subsection does not include a period of imprisonment that is suspended; and

                     (b)  a reference to a period of imprisonment in that subsection includes a reference to a single sentence of imprisonment that a court has decided to impose in respect of both one or more serious offences and one or more other offences.

Other matters

           (10)  This section applies in relation 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).

           (11)  Part IB of the Crimes Act 1914 (which deals with sentencing, imprisonment and release of federal offenders) does not apply in relation to an order under this section.

36D  Application by the Minister for a citizenship cessation order

             (1)  The Minister may make an application for an order to be made by a court under subsection 36C(1) in relation to a person.

             (2)  The application may be made before or after the person is convicted of one or more serious offences but must be made before the person is sentenced.

Consultation with the Foreign Affairs Minister

             (3)  Before the Minister makes the application, the Minister must consult the Foreign Affairs Minister.

Matters relating to the application

             (4)  The application must include the following matters:

                     (a)  information about the person’s age;

                     (b)  information about the person’s Australian citizenship;

                     (c)  information about the person’s nationality or citizenship of other countries.

             (5)  The application:

                     (a)  must be made in the jury’s absence; and

                     (b)  must not be referred to in the presence of the jury; and

                     (c)  must only be heard after the person is convicted of one or more serious offences.

Notice of application

             (6)  The Minister must give the person written notice of the application as soon as practicable after the application is made. The Minister may also give written notice of the application to such other persons as the Minister considers appropriate.

             (7)  Section 47 (notification of decisions) does not apply to a decision of the Minister to make the application.

Australian citizens to which this section applies

             (8)  This section applies in relation 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  Section 36L (note)

Repeal the note, substitute:

Note:          See section 36B for when a person ceases to be an Australian citizen.

6  Subsection 48(5A)

Omit “determinations”.

7  Subsection 51B(1)

Repeal the subsection, substitute:

             (1)  As soon as practicable after a reporting period ends, the Minister must table a report in each House of the Parliament that sets out the number of applications made under section 36D to which both of the following apply:

                     (a)  the applications were made during the reporting period to which the report relates or during an earlier reporting period;

                     (b)  the applications relate to persons who, during the reporting period to which the report relates, were convicted and sentenced for one or more serious offences.

8  Subsection 51B(3)

Repeal the subsection, substitute:

             (3)  In this section:

reporting period means:

                     (a)  the period of 12 months beginning on the day the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 commences; or

                     (b)  each subsequent 12‑month period.

9  Section 51C

Repeal the section.

10  At the end of subsection 53(2)

Add “or the power under section 36D (about application for citizenship cessation order)”.

Independent National Security Legislation Monitor Act 2010

11  Section 4 (paragraph (aa) of the definition of counter‑terrorism and national security legislation)

Omit “determinations”.

12  Paragraph 6(1)(bb)

Omit “and (1C)”, substitute “, (1C) and (1F)”.

13  Paragraph 6(1)(f)

Repeal the paragraph, substitute:

                      (f)  the functions conferred by subsections (1E) and (1F).

14  After subsection 6(1E)

Insert:

           (1F)  The Independent National Security Legislation Monitor must:

                     (a)  review the operation, effectiveness and implications of:

                              (i)  Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 (which deals with citizenship cessation), as amended by Schedule 1 to the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023; and

                             (ii)  any other provision of the Australian Citizenship Act 2007 so far as it relates to that Subdivision; and

                     (b)  complete the review as soon as practicable after the end of the 3‑year period beginning on the day the amendments of that Subdivision commence.

15  Subsection 29B(1)

Omit “or (1C)”, substitute “, (1C) or (1F)”.

Written by Ross Ahmadzai

9 Dec, 2023

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