Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 42 (28 February 2024)

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Purpose	The Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 (the bill) seeks to amend the Citizenship Act 2007 (Citizenship Act) and other Commonwealth Acts to establish a revised citizenship cessation regime that 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.
Portfolio	Home Affairs
Introduced	House of Representatives on 29 November 2023
Bill status	Received the Royal Assent on 7 December 2023

Procedural fairness
Undue trespass on rights and liberties
Significant penalties^[152]

2.2 The Act provides that the minister can apply to the courts to assess and make an order as to whether a dual citizen should be stripped of their Australian citizenship on the basis of a criminal conviction.^[153]

2.3 Item 4 of Schedule 1 to the Act substitutes section 36D of the Citizenship Act 2007 (Citizenship Act). Subsection 36D(1) provides the minister with the power to make an application for an order to be made by a court under proposed subsection 36C(1) that a person cease to be an Australian citizen.^[154] Subsection 36D(2) provides that an application by the minister may be made before or after a person is convicted of one or more serious offences^[155] but must be made before sentencing. In making such an order the court must be satisfied that the person is aged 14 years or older, is an Australian citizen, and the person’s conduct to which the conviction(s) relate is so serious and significant that it demonstrates that the person has repudiated their allegiance to Australia (proposed subsection 36C(4)).

2.4 An application under subsection 36D(1) by the minister to the court must be made in the jury’s absence, must not be referred to in the presence of the jury, and must only be heard after the person is convicted of one or more serious offences, as per subsection 36D(5). Subsection 36D(6) provides that the minister must give the person written notice of the application as soon as practicable after the application is made.

2.5 Item 1 of Schedule 1 to the Act also substitutes existing section 36C of the Citizenship Act. Subsection 36C(3) sets out the specific offences that allow the minister to apply for the revocation of a person’s citizenship. It also provides that an application may only be considered when a person is convicted of one of these offences and sentenced to a period of imprisonment of at least 3 years; or sentenced to periods of imprisonment that total at least three years (as per paragraph 36C(1)(b)).

2.6 In Scrutiny Digest 16 of 2023 the committee sought the minister’s advice as to:

Minister for Home Affairs’ response^[157]

2.7 The Minister for Home Affairs (the minister) responded to the committee’s concerns in a letter, dated 6 February 2024.

2.8 The minister advised that, prior to commencement of the Act, the discretionary power to make a citizenship cessation order was vested in the minister, and that the Act now vests this power in the courts because of recent litigation which found the previous provisions invalid.

2.9 In relation to the process under subsection 36D(1), the minister advised that procedural fairness will be afforded to a defendant in line with the protections available in all judicial proceedings and during sentencing. The minister explained that ‘[t]his includes the right to put relevant material before the court following a conviction and the right to appeal the sentence...’. The minister advised that it would be up to the court to determine whether there will be a separate hearing in relation to citizenship cessation. The minister further noted that as the Act requires notice of a citizenship application order be provided to a defendant, this process would in effect provide an opportunity for a defendant to make submissions to the court against the making of a citizenship cessation order.

2.10 In relation to the proportionality of citizenship cessation as a penalty, the minister reiterated advice similar to that provided in the explanatory memorandum, noting the measures are necessary to address threats posed to Australia by people who have demonstrably repudiated their citizenship. The minister noted that the Government considers a three-year aggregate term of imprisonment for the listed serious offences is appropriate to demonstrate and justify citizenship cessation on the basis of conduct. Further, the minister noted that the minimum age for criminal responsibility is 14 and that the court would be required to have regard to the best interests of the child where the defendant is aged under 18.

2.11 In relation to the application of Part 1B of the Crimes Act 1914 the minister advised that while these sentencing principles include mitigating factors, the factors for consideration set out in the Act go beyond these measures and afford greater advantage to a defendant than if they were solely able to rely on the factors in Part 1B. The minister advised that the factors for the court to consider as listed in the Act (for example, the person’s connection to their other country of citizenship and the availability of citizenship rights) do not limit the factors that a court may have regard to in making a citizenship cessation order.

Committee comment

2.12 The committee thanks the minister for providing further information on how the citizenship cessation determination process will operate in practice.

2.13 As a general comment, the committee welcomes the changes made by the Act to vest this broad and significant discretionary power to make citizenship cessation orders in the courts, as opposed to the minister. The decision to revoke Australian citizenship is life-altering and the committee considers that these matters are more appropriately dealt with by the courts than as an exercise of executive power. As such, the committee recognises that, in this respect, the Act ameliorates the scrutiny concerns raised by the committee when the measures were first introduced.^[158]

2.14 The committee welcomes the advice that opportunities will be provided by the court for a defendant to make submissions in relation to a citizenship cessation application made by the minister, as separate to the relevant criminal proceedings. However, it does not appear that this right is enshrined in the legislation. While the committee acknowledges that the conduct of court proceedings is appropriately a matter for the courts to determine, the committee is concerned, taking into account the serious impact of the decisions in question, that the ability of individuals to fully contest applications for citizenship cessation does not appear to be guaranteed by the legislation.

2.15 While welcoming the minister’s advice concerning the appropriateness of citizenship cessation as a penalty, the committee would have appreciated further elaboration as to how the approach taken in the legislation appropriately balances the need for community protection against the significant impact on personal rights and liberties in question and any potential unfairness involved.

2.16 With this in mind, the committee retains its scrutiny concerns in relation to the Act. The committee is of the view that it would have assisted the Parliament’s consideration of the legislation, and the committee’s key role in the legislative process, if the information provided by the minister in response to the committee’s concerns had been included in the explanatory memorandum to the bill.

2.17 Noting the significance of these measures, and that the bill for the Act was introduced to and passed the Parliament within a week, the committee considers that, from a scrutiny perspective, it would have been more appropriate for the bill to have been subject to full consideration by the Parliament to enable the measures to be appropriately scrutinised.

2.18 The committee reiterates its significant scrutiny concerns in relation to the measures in the Act, but in light of the fact that the Act has now passed both Houses of the Parliament, the committee makes no further comment on this matter.

^[152] Schedule 1, item 4, section 36C. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[153] Previously, the minister was authorised to revoke citizenship on the basis of amendments inserted into the Citizenship Act 2007 (Citizenship Act) by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020. These provisions were found to be invalid by the High Court of Australia in Alexander v Minister for Home Affairs [2022] HCA 19 (Alexander) and Benbrika v Minister for Home Affairs [2023] HCA 33 (Benbrika).

^[154] Subsection 36C(2) provides that an order to revoke citizenship cannot be made by the court if it would result in the person becoming stateless.

^[156] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2023 (7 December 2023) p. 4.

^[157] The minister responded to the committee’s comments in a letter, dated 6 February 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 3 of 2024).

^[158] See Senate Standing Committee for the Scrutiny of Bills, Alert Digest 7 of 2015 (12 August 2015) pp. 3–17; and Scrutiny Digest 7 of 2019 (17 October 2019) pp. 5-15.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests