Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023

The legal framework for Australian citizenship is based on an exchange between the State and the citizen involving reciprocal rights and obligations, namely a ‘common bond’.  Certain serious and significant conduct can sever that common bond and, in extreme cases, represent a repudiation of a person’s allegiance to the State. In these cases, a citizenship cessation regime is required to uphold the integrity of Australian citizenship and represents the strongest possible response to conduct which constitutes repudiation of a person’s allegiance to Australia.

In 2015, terrorism-related citizenship cessation provisions were enacted in the Australian Citizenship Act 2007 (Citizenship Act) for the first time, in response to the threat that foreign terrorist fighters and convicted terrorists presented to Australia and its interests. The intention of the legislation was to remove from the Australian community—or prevent the return to Australia from overseas—those dual Australian citizens who had, by their own intentional actions, engaged in terrorism related-conduct and as such repudiated their allegiance to Australia.

In 2019, the Independent National Security Legislation Monitor reviewed the operation, effectiveness and implications of the terrorism-related citizenship cessation provisions included in the Citizenship Act. The recommendations of this review lead to the citizenship cessation provisions of the time being repealed and replaced in 2020 by a Ministerial discretion model, which was part of a suite of measures for the management of persons of counter-terrorism interest. The 2020 legislation recognised and protected Australia’s unity and cohesion, and noted that behaviour that harms or seeks to harm our community, whether in Australia or offshore, is in clear opposition to the common bond and shared values that underpin membership of the Australian community.

Under the 2020 legislation, section 36B allowed the Minister to make a determination that a dual national’s Australian citizenship ceased where certain preconditions were met, including that the person demonstrated conduct that repudiated their allegiance to Australia, and that it would not be in the public interest for the person to remain an Australian citizen. Section 36D allowed the Minister to make a determination that a dual national’s Australian citizenship, in circumstances where:

·        the person had been convicted of a specific offence; and

·        the person had been sentenced to a period of imprisonment of at least 3 years; and

·        the Minister was satisfied the conduct of the person to which the conviction related demonstrated they had repudiated their allegiance to Australia; and

·        it would not be in the public interest for the person to remain and Australian citizen.

Sections 36B and 36D were found invalid by the High Court in Alexander v Minister for Home Affairs [2022] HCA 19 (Alexander) and Benbrika v Minister for Home Affairs [2023] HCA 33 (Benbrika) respectively. In invalidating these sections, the High Court held that the provisions, reposed on the Minister, conferred on the Executive an exclusively judicial function of adjudging and punishing criminal guilt. The High Court found the Minister’s power to make a determination of citizenship cessation was retribution or punishment for past reprehensible conduct. In line with Chapter III of the Constitution, this function can only be exercised by a court.

The Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 (the Bill) would amend the Citizenship Act and other Commonwealth Acts to repeal the invalid provisions and establish a revised citizenship cessation regime that appropriately addresses the implications of the High Court’s judgements in Alexander and Benbrika. The new regime would enable the Minister to make an application to request that a court exercise its power to make an order to cease a dual citizen’s Australian citizenship, where the person has been convicted of a serious offence or offences. Under the Bill, the power to make a citizenship cessation order is vested in the courts and is an appropriate exercise of judicial, rather than executive, power.

Key features of amendments

Minister may make an application to the court

The Bill provides that the Minister may make an application to a court, enlivening the court’s discretionary power to make a citizenship cessation order in certain circumstances as part of sentencing on conviction of a person for certain serious offences. The Minister, as the Minister responsible for national security policy and operations, may make an application to enliven the court’s discretionary power to make a citizenship cessation order as part of sentencing. The court would be empowered to order that a person ceases to be an Australian citizen where the person is also a national or citizen of another country, following a conviction of one or more specified serious offences as an order made as part of sentencing for the offence or offences, where the court has decided to impose a period (or total periods) of imprisonment of at least 3 years. The application by the Minister would occur before the person has been sentenced, ensuring that any citizenship cessation decision would be made as part of the sentencing decision for the person.

Before making the application, the Minister would also consult the Minister for Foreign Affairs. This consultation is intended to ensure that the Minister for Home Affairs is appropriately informed of any potential impacts on Australia’s international relations, before making an application to the court for a citizenship cessation order.

The Bill provides that the Minister’s application to the court must include information about the person’s age, Australian citizenship and nationality or citizenship of any other countries. The information would be necessary to support the court’s consideration and decision whether to make an order ceasing the person’s Australian citizenship. The Minister would be required to give the person written notice of the application as soon as practicable after the application is made and may give written notice of the application to any other persons the Minister considers appropriate.

The amendments in the Bill would allow the Minister to make an application to a court for a citizenship cessation order in particular cases, where the person’s conduct in the commission of a serious offence or offences is so repugnant to Australia’s interests and values that it elicits the strongest possible response, by removing the person’s access to the benefits of Australian citizenship.

Court may make an order of citizenship cessation

The amendments in the Bill would provide that a court may, as a part of sentencing the person to such a period or periods of imprisonment, also order at that time that the person ceases to be an Australian citizen; also order at that time as part of the sentence or sentences that the person ceases to be an Australian citizen, if:

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

·         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

·         before the court imposes the sentence or sentences on the person in respect of the conviction or convictions, the Minister makes an application for a citizenship cessation order in relation to the person; and

·         the court is satisfied that the person is aged 14 or over, the person is an Australian citizen, the person is a national or citizen of another country, and 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.

Importantly, the court, in exercising its discretion to make an order that a dual national’s Australian citizenship ceases as part of the sentence following conviction of the person for one or more specified serious offences, must be satisfied that the conduct forming the basis of a conviction under a relevant offence has the effect of repudiating a person’s allegiance to Australia. This means that the person’s conduct must be significant and serious to a degree high enough that it warrants the strongest possible response in the form of citizenship cessation.

The amendments in the Bill also provide that a court must not make an order to cease a person’s Australian citizenship if the court were satisfied that the person would become a person who is not a national or citizen of any country. As such, the court may only cease the Australian citizenship of individuals who would not be rendered stateless. 

The court’s decision to make the order must be informed further by its consideration of the person’s connection to their other country of citizenship (and by extension, any residual connection to Australia), the best interests of the person as a child if the person is under 18, or if the person has any dependent children in Australia.

Court to be satisfied of certain matters

In assessing whether a citizenship cessation order should be made, the court is to be satisfied of the following:

·         the person is aged 14 or over; and

·         the person is an Australian citizen; and

·         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.

In deciding whether the court is satisfied that 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, the court must have regard to the following matters:

·         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;

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

·                     the intended scale of the conduct to which the conviction or convictions relate;

·                     the actual impact of the conduct to which the conviction or convictions relate;

·         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.

This is not intended to limit limiting the other matters to which the court may also have regard in sentencing, in addition to the five matters mentioned above, to which the court must have regard in considering whether to make a citizenship cessation order.

Serious offences

The serious offences specified in the amendments, for which a person is convicted and for which a court may make a determination of citizenship cessation as part of sentencing, are provided under the Criminal Code:

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

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

·         a provision of Subdivision B of Division 83 of the Criminal Code (advocating mutiny);

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

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

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

–     section 102.8;

–     Division 104;

–     Division 105;

–     section 105A.7D;

–     section 105A.18B;

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

The above offences demonstrate a clear nexus to the repudiation of a citizen’s responsibilities to the State, through the commission of serious and significant offences. Commission of these offences places Australian interests at risk and, where the actions of the person are serious and significant, are incompatible with the values of Australian citizenship.

Written by Ross Ahmadzai

3 Dec, 2023

You may also be interested in…

0 Comments

Submit a Comment

Your email address will not be published. Required fields are marked *