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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the Australian Citizenship Act 2007 to
provide that, at the discretion of the Minister for Home Affairs, a person who
is a national or citizen of a country other than
Australia ceases to be an
Australian citizen if the person acts inconsistently with their allegiance to
Australia by engaging in
terrorist offences
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Portfolio
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Home Affairs
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Introduced
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House of Representatives on 19 September 2019
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Bill status
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Before House of Representatives
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2.11 In Scrutiny Digest 7 of 2019 the committee requested the minister's more detailed advice as to the necessity and appropriateness of providing the minister with a broad discretionary power to cease a person's citizenship under sections 36B and 36D by reference to the minister's subjective satisfaction that they have repudiated their allegiance to Australia.
2.12 The committee also requested the minister's more detailed justification as to the necessity and appropriateness of providing the minister with a power to cease a person's citizenship under section 36B conditioned merely on the minister's satisfaction of the key matters rather than the existence of those matters in fact.
2.13 The committee considered it may be appropriate that the minister amend paragraph 40 of the explanatory memorandum to more correctly describe the operation of paragraphs 36B(1)(a)–(c) and sought the ministers advice in this regard.[5]
Minister's response[6]
2.14 The minister advised:
1.16 In light of the comments above, the committee requests the minister's more detailed justification as to the necessity and appropriateness of providing the minister with a broad discretionary power to cease a person's citizenship under sections 36B and 36D by reference to the minister's subjective satisfaction that they have repudiated their allegiance to Australia.
The essential purpose of the Bill is to replace the current operation of law provisions for citizenship loss with a decision-making model. This is consistent with the recommendation of the Independent National Security Legislation Monitor (INSLM) in his recent report on the review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007 (the INSLM Report).
Under the Ministerial decision-making model contained in the Bill, the Minister must consider a number of matters when making a determination to cease a person’s citizenship. This includes being satisfied that the person’s conduct demonstrates a repudiation of allegiance to Australia.
A requirement based on the decision-maker’s satisfaction is entirely consistent with a decision-making model. The satisfaction requirement is consistent with current section 35A(1)(d) of the Australian Citizenship Act 2007 and echoes the requirements in current section 34, that the Minister be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen and in relation to whether a person is a dual citizen or not.
In addition, the Minister’s satisfaction that a person’s conduct demonstrates a repudiation of their allegiance to Australia must be reasonable. The High Court has said ‘satisfaction’ is a state of mind, which must be formed reasonably and on a correct understanding of the law.
A decision-making model based on Ministerial satisfaction is also consistent with recommendations made in the INSLM Report.
Under existing decision-making models, relevant information is provided to the Minister via a Ministerial Submission from the Department of Home Affairs. The Submission provides extensive and detailed information relevant to the case drawn from a range of other departments and agencies.
The Bill also contains several safeguards so that, following a cessation determination, an affected person or their delegate can challenge the grounds of the Minister’s satisfaction.
- Firstly, once notice of cessation is provided, the person may apply to the Minister for a revocation of the determination (section 36H). The Minister must review an application and must revoke the determination if satisfied the person did not engage in the conduct to which the determination relates, or that the person was not a national or citizen of another country at the time the determination was made. The Minister must observe the rules of natural justice in this process.
- Secondly, the Minister may, on the Minister’s own initiative, revoke a determination if satisfied this is in the public interest (section 36J).
- Thirdly, the Minister’s determination is automatically overturned and the person’s citizenship taken never to have ceased if a court finds that the person did not engage in the conduct to which the determination relates (section 36K).
- Finally, all decisions of the Minister, whether a determination to cease citizenship or a decision not to revoke a determination, are also subject to judicial review.
In addition, as an elected official, the Minister can be held accountable to Parliament in exercising the powers conferred upon him or her by this Bill.
The Committee noted at paragraph 1.12 that "what constitutes 'repudiation' of a person’s citizenship is not precisely defined beyond the conduct itself". When the terrorism-related citizenship cessation provisions were enacted through the Allegiance to Australia Act (2015), the Parliament recognised that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia. This declaration of Parliament’s intention is repeated in the Bill in proposed s36A. As such, what constitutes repudiation of allegiance to Australia is behaviour that all Australians would view as repugnant and in opposition to the shared values of the Australian community. As an elected representative and member of the Australian Parliament, the Minister for Home Affairs is well-placed to identify such conduct.
Noting the established and tested processes of a decision-making model based on Ministerial satisfaction, and the number of safeguards built into the proposed legislation, a model based on the Ministerial subjective satisfaction is both necessary and appropriate.
1.17 The committee also requests the minister's more detailed justification as to the necessity and appropriateness of providing the minister with a power to cease a person's citizenship under section 36B conditioned merely on the minister's satisfaction of the key matters rather than the existence of those matters in fact.
As noted above, under the Ministerial decision-making model in the Bill, the Minister may cease a person’s citizenship if satisfied of a number of key matters. These include that the person engaged in specified terrorism-related conduct, that the conduct demonstrates a repudiation of allegiance to Australia, that it would be contrary to the public interest for the person to remain an Australian citizen, and that in making a cessation determination the person would not become a person who is not a national or citizen of any country. The answer above (question 1.16) outlines why a decision based on Ministerial satisfaction rather than jurisdictional fact is both necessary and appropriate.
The Bill also contains multiple safeguards to guard against or rectify an erroneous determination.
- Firstly, once notice of cessation is provided, the person may apply to the Minister for a revocation of the determination (section 36H). The Minister must review an application and must revoke the determination if satisfied that the person did not engage in the conduct to which the determination relates, or was not a national or citizen of any other country at the time the decision was made, and may revoke if revocation would be in the public interest. The Minister must observe the rules of natural justice in relation to this process.
- Secondly, the Minister may, on the Minister’s own initiative, revoke a determination if satisfied this is in the public interest (section 36J).
- Thirdly, the Minister’s determination is automatically overturned and the person’s citizenship taken never to have ceased in a number of circumstances (section 36K). This includes:
• if a court finds that the person did not engage in the conduct to which the determination relates;
• if a court finds that the person was not a national or citizen of any other country at the time the decision was made;
• if the court conviction to which a determination under section 36D relations is reduced below the requisite three years; or
• if a declaration under section 36C (declared terrorist organisation) is disallowed by either House of the Parliament.
- Finally, all decisions of the Minister, whether a determination to cease citizenship or a decision not to revoke a determination, are subject to judicial review generally.
In addition, as an elected official, the Minister can be held accountable to Parliament in exercising the powers conferred upon him or her by this Bill.
Noting the reasons outlined above (question 1.16) regarding the preference for Ministerial satisfaction and the number of safeguards built into the legislation, a model based on the Ministerial subjective satisfaction of the key matters is both necessary and appropriate.
1.18 The committee considers it may be appropriate that the minister amend paragraph 40 of the explanatory memorandum to more correctly describe the operation of paragraphs 36B(1)(a)–(c) and seeks the ministers advice in this regard.
The Minister agrees that paragraph 40 of the Explanatory Memorandum could be amended to note that paragraphs 36B(1)(a)-(c) outline the matters the Minister must, not may, be satisfied of when determining to cease a person’s Australian citizenship.
Committee comment
2.15 The committee thanks the minister for this response. The committee notes the minister's advice that providing the minister with the power to cease a person's citizenship by reference to the minister's subjective satisfaction of key matters is consistent with current section 35A(1)(d) of the Australian Citizenship Act 2007 and echoes the requirements in current section 34, that the minister be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen and in relation to whether a person is a dual citizen or not.
2.16 The committee further notes the minister's advice that the established and tested processes of a decision-making model based on ministerial satisfaction, and the number of safeguards built into the proposed legislation, means that a model based on the ministerial subjective satisfaction is both necessary and appropriate.
2.17 While the committee notes this advice, the committee reiterates that providing for a person's citizenship to cease by reference to the minister's subjective satisfaction of key matters is likely to undermine the effectiveness of any judicial review of a citizenship cessation determination. While a person will be entitled to seek judicial review of a determination made by the minister, this would involve the court considering whether the minister has exceeded their jurisdiction. However, it would be difficult to make out that the minister has exceeded their jurisdiction noting that the grounds on which the minister must be satisfied are narrow, given the power is framed in subjective terms. Although the exercise of such a power may be invalidated if infected with serious irrationality or illogicality, the courts are reluctant to accept this high standard of review has been established.[7] Further, while it is correct to say that the minister's 'satisfaction' must be formed reasonably on a correct understanding of the law, it is also the case that the test for invalidating such a decision on the basis of its legal unreasonableness is 'necessarily stringent' and 'extremely confined', the assumption being that courts will not lightly interfere with the exercise of statutory powers on this ground.[8]
2.18 Additionally, in a judicial review application, a court would not consider whether or not the alleged conduct had, as a matter of fact, occurred. The committee therefore remains of the view that the bill confers on the minister a broad discretionary power as it is a matter for his or her judgement as to whether the relevant conduct has occurred and whether that conduct demonstrates that a person has repudiated their allegiance to Australia.
2.19 The committee also reiterates its scrutiny concerns that the practical effect of proposed subsections 36B(5) and (6) is to allow the minister to cease a person's citizenship for conduct that could constitute a criminal offence but without any of the protections associated with a criminal trial, such as the requirement to prove the requisite intention to commit an offence. From a scrutiny perspective, the committee remains of the view that this may unduly trespass on a person's rights or liberties. This is especially so given that the conduct which may lead to the serious consequence of loss of citizenship may have occurred long before the commencement of the provisions. The committee does not consider that the minister's response has adequately addressed these scrutiny concerns.
2.20 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing the minister with a broad discretionary power to cease a person's citizenship under proposed sections 36B and 36D by reference to the minister's subjective satisfaction of key matters, including that they have repudiated their allegiance to Australia.
2.21 In relation to the committee's question about the text of the explanatory memorandum, the committee welcomes the minister's advice that the EM could be amended to clarify that paragraphs 36B(1)(a)–(c) outline the matters the minister must, rather than may, be satisfied of when determining to cease a person's Australian citizenship. Noting the importance of explanatory materials as a point of access to understanding the law, the committee looks forward to a revised EM being tabled incorporating this clarification as soon as it is practicable to do so.
2.22 In Scrutiny Digest 7 of 2019 the committee requested the minister's more detailed justification as to why it is considered necessary and appropriate to replace the existing requirement that citizenship can only be removed if the person is a national or citizen of another country, with a requirement that the minister must not make a citizenship cessation determination if the minister is satisfied that such a determination would result in the person becoming someone who is not a national or citizen of any country.[10]
Minister's response
2.23 The minister advised:
The justification for moving to a decision-making model based on the decision-maker being satisfied of certain matters has been explained above (question 1.16).
The Minister’s power to make a cessation determination is dependent on the Minister being satisfied, among other things, that the person would not become a person who is not a national or citizen of any country. In forming this satisfaction, 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. This formulation is consistent with the provisions of the existing section 34(3)(b) which provides for the revocation of citizenship for serious offences and has been used regularly. It is also consistent with the citizenship loss provisions in the British Nationality Act 1981. As such, there are well-established practices and processes in this regard.
In addition, as outlined above, a decision based on satisfaction ensures demonstration of the Minister’s state of mind and active engagement with the material. Further, as noted by the INSLM on page 59 of his report on the existing loss provisions, "conditioning the power on the fact that a person is a dual citizen ... may make it very uncertain whether the power is even engaged".
The Bill also contains multiple safeguards to protect from or rectify determinations that result in an individual becoming a person that is not a national or citizen of any country.
- Firstly, once notice of cessation is provided, they may apply to the Minister for a revocation of the determination (section 36H). The Minister must review an application and must revoke the determination if satisfied that the person was not a national or citizen of any other country at the time the decision was made. The Minister must observe the rules of natural justice in this process.
- Secondly, the Minister may, on the Minister’s own initiative, revoke a determination if satisfied this is in the public interest (section 36J).
- Thirdly, the Minister’s determination is automatically overturned and the person’s citizenship taken never to have ceased if a court finds that the person was not a national or citizen of any other country at the time the decision was made (section 36K).
- Finally, all decisions of the Minister, whether a determination to cease citizenship or a decision not to revoke a determination, are subject to judicial review generally.
In addition, as an elected official, the Minister can be held accountable to Parliament in exercising the powers conferred upon him or her by this Bill.
Noting the reasons outlined above (question 1.16), a model based on the Ministerial subjective satisfaction of a person’s dual citizenship is both necessary and appropriate. The Department has extensive experience and well-developed processes for implementing such legislation. Noting the number of safeguards and avenues for appeal built into the legislation, the Bill sufficiently protects a person’s rights and liberties, and upholds Australia’s international obligations.
Committee comment
2.24 The committee thanks the minister for this response. The committee notes the minister's advice that the formulation regarding the minister being satisfied that a person would not become a person who is not a citizen or national of another country is consistent with existing paragraph 34(3)(b) which provides for the revocation of citizenship for serious offences and has been used regularly. The committee further notes the minister's advice that a decision based on satisfaction ensures demonstration of the minister’s state of mind and active engagement with the material and that there are a number of legislative safeguards in the bill.
2.25 While noting this advice, the committee reiterates that the implications of this change for judicial oversight of the exercise of the powers are significant. Under the current provisions, the question of whether a person is a national or citizen of another country appears to be a jurisdictional fact that could be reviewed by the court for correctness, rather than merely on the basis of whether the minister's opinion on the question was lawfully formed (which provides considerably reduced scope for judicial supervision).
2.26 The committee also reiterates that an error made by the minister in forming their state of satisfaction could have the consequence that a person could have their citizenship removed while possessing no other citizenship (and perhaps not ever being able to obtain such citizenship in practice), thereby rendering the person stateless. In this respect, the committee notes that a non-citizen of Australia who does not possess a valid visa[11] may be detained indefinitely in immigration detention if no other country is willing to accept that person. As such, the committee continues to have scrutiny concerns that these amendments have the potential to unduly trespass on personal rights and liberties. The committee does not consider that these scrutiny concerns have been adequately addressed by the minister.
2.27 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of replacing the existing requirement that citizenship can only be removed if the person is a national or citizen of another country, with a requirement that the minister must not make a citizenship cessation determination if the minister is satisfied that such a determination would result in the person becoming a person who is not a national or citizen of any country.
2.28 In Scrutiny Digest 7 of 2019 the committee requested the minister's advice as to why decisions under proposed sections 36B and 36D are not subject to independent merits review.[13]
Minister's response
2.29 The minister advised:
Avenues for review exist in the Bill. Many of these avenues are in addition to those provided for in the existing legislation. These avenues have been outlined in the response to question 1.17.
In addition, a person can access merits review of the Australian Security Intelligence Organisation’s Qualified Security Assessment, which will inform the Minister’s satisfaction that a person has engaged in relevant conduct, in the Security Appeals Division of the Administrative Appeals Tribunal.
Consistent with the approach in the Migration Act 1958, it is not appropriate for the Tribunal to review a decision made personally by the Minister, who is responsible to Parliament, in relation to the public interest.
Committee comment
2.30 The committee thanks the minister for this response. The committee notes the minister's advice that there are avenues for review in the bill. The committee also notes the minister's advice that a person can access merits review of the Australian Security Intelligence Organisation’s Qualified Security Assessment, which will inform the minister’s satisfaction that a person has engaged in relevant conduct.
2.31 The committee further notes that the minister's advice that the approach in the bill is consistent with the approach in the Migration Act 1958 and that it is not appropriate for the Administrative Appeals Tribunal to review a decision made personally by the Minister, who is responsible to Parliament, in relation to the public interest.
2.32 While noting the response, the committee has not generally accepted the fact that a decision maker is a minister is, of itself, a sufficient basis to conclude a decision should not be subject to independent merits review. Further, although merits review of an ASIO Qualified Security Assessment may be available, the minister's powers do not appear to be conditioned on the existence of an assessment. The committee has also outlined considerable concerns with both the avenues for review existing in the bill and the adequacy of judicial review. As such, from a scrutiny perspective, the committee does not consider that the minister's response adequately justifies why merits review is not available in relation to decisions made under proposed sections 36B and 36D.
2.33 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of not providing independent merits review of decisions made under proposed sections 36B and 36D.
2.34 In Scrutiny Digest 7 of 2019 the committee requested the minister's advice as to the necessity and appropriateness of leaving the declaration of terrorist organisations under proposed section 36C to delegated legislation. [15]
Minister's response
2.35 The minister advised:
The Bill repeals current section 35AA and repeats it unchanged into the new legislation. There are no substantive changes to the intent or substance of the section.
Under proposed section 36C, the Minister maintains the power to declare, by legislative instrument, a declared terrorist organisation, within the meaning of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code. This reflects the existing power in current subparagraph 35AA(1), which also allows the Minister to declare a declared terrorist organisation by legislative instrument. Providing for these details to be in delegated legislation rather than primary legislation gives the Government the ability to respond quickly to potential threats and emerging issues from terrorist organisations.
A declaration under proposed section 36C is a legislative instrument that is subject to the scrutiny framework set out by the Legislation Act 2003, including the provisions related to disallowance. In the event that either House of Parliament considered that the declaration under proposed section 36C was not appropriate, it would be possible for the instrument to be disallowed. A further consequence of disallowance is that any cessation determination reliant on that declaration is automatically revoked (section 36K) and the person’s citizenship taken never to have ceased.
A declaration under proposed section 36C is also subject to additional scrutiny by the Parliamentary Joint Committee on Intelligence and Security, as set out in proposed subsection 36C(4). This will allow the Committee to review the declaration and report the Committee’s recommendations to each House of Parliament, within specified timeframes, as is now the case with declarations under existing s35AA.
Given the complex and dynamic nature of potential threats, and noting the oversight mechanisms available to the Parliament, the use of delegated legislation for the purpose of a declaration under proposed section 36C remains necessary and appropriate.
Committee comment
2.36 The committee thanks the minister for this response. The committee notes the minister's advice that the bill 'repeals current section 35AA and repeats it unchanged into the new legislation' and that there are no substantive changes to the intent or substance of the section. The committee also notes the minister's advice that providing for these details in delegated legislation, rather than primary legislation, gives the government the ability to respond quickly to potential threats and emerging issues from terrorist organisations.
2.37 The committee further notes the minister's advice that a declaration under proposed section 36C is a legislative instrument that is subject to the scrutiny framework set out by the Legislation Act 2003, including the provisions related to disallowance.
2.38 While the committee acknowledges that potential terrorist threats are complex and dynamic, it takes this opportunity to reiterate its general and long-standing scrutiny view that significant matters should be included in primary legislation.
2.39 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving the declaration of terrorist organisations under proposed section 36C to delegated legislation.
2.40 In Scrutiny Digest 7 of 2019 the committee requested the minister's more detailed justification as to why, in relation to the powers under section 36D, it is necessary or appropriate to reduce the relevant sentence from six years to three years. [17]
Minister's response
2.41 The minister advised:
The Bill provides that section 36D applies to a person convicted of a specified terrorism offence from 29 May 2003 onwards if the period or periods of imprisonment totals at least 3 years. In practice, this lowers the existing threshold from 6 years for convictions from 12 December 2015 to present and from 10 years for convictions from 12 December 2005 to 12 December 2015.
This amendment better acknowledges the seriousness of conduct that has resulted in conviction for a terrorism offence. It recognises that citizens convicted of certain terrorism-related offences may have engaged in conduct incompatible with the shared values of the Australian community and have severed the common bond bestowed through citizenship. This, in itself, justifies the Minister being able to consider whether a person has repudiated their allegiance to Australia, and whether it is in the public interest for the person to remain an Australian citizen. However, in considering whether it would be in the public interest for the person to remain an Australian citizen, the Minister must have regard to the matters set out in s36E, including the severity of the relevant conduct and the degree of threat currently posed by the person to the Australian community.
The INSLM supported this view in his review of the current citizenship cessation. He states at page xiii of his report 'a serious terrorism offence is the paradigm case of an offence against the Australian community and one which may be fairly seen to break to common bond'.
While the Bill acknowledges that terrorism-related conduct is serious enough to warrant consideration for citizenship cessation, there are appropriate safeguards in place. This includes that the Minister:
- be satisfied that the conviction/s demonstrates the person has repudiated allegiance to Australia;
- have regard to severity of the conduct that was the basis of the conviction(s); and
- factor in any leniency a person received in the sentence.
Committee comment
2.42 The committee thanks the minister for this response. The committee notes the minister's advice that the amendment 'better acknowledges the seriousness of conduct that has resulted in conviction for a terrorism offence' and recognises that citizens convicted of certain terrorism-related offences may have engaged in conduct incompatible with the shared values of the Australian community. The committee further notes the minister's advice that there are appropriate safeguards in place.
2.43 The committee reiterates that the loss of citizenship is a severe consequence, which may ultimately lead to a person being physically excluded from the Australian community.
2.44 The committee also reiterates that when the Parliamentary Joint Committee on Intelligence and Security (PJCIS) reported on the bill that originally introduced section 35A (proposed section 36D in this bill), it recommended that citizenship may only be revoked following conviction for offences with a sentence of at least six years imprisonment (or multiple sentences totalling at least six years imprisonment). The PJCIS explained its reasoning on the following basis:
While limiting the provision to more serious offences is an appropriate measure to better define the scope of conduct leading to revocation, the Committee notes that even following a conviction there will still be degrees of seriousness of conduct and degrees to which conduct demonstrates a repudiation of allegiance to Australia. Therefore, the Committee recommends that loss of citizenship under this provision not be triggered unless the person has been given sentences of imprisonment that together total a minimum of six years for offences listed in the Bill.
Some members of the Committee were of the view that a lower or higher threshold was preferable; however, on balance it was considered that a six year minimum sentence would clearly limit the application of proposed section 35A to more serious conduct. It was noted that three years is the minimum sentence for which a person is no longer entitled to vote in Australian elections.[18] Loss of citizenship should be attached to more serious conduct and a greater severity of sentence, and it was considered that a six year sentence would appropriately reflect this.[19]
2.45 Noting the broad discretionary powers of the minister in proposed section 36D and the potential serious consequences flowing from loss of citizenship, from a scrutiny perspective, the committee does not consider that the minister's response or the explanatory materials adequately explain why it is necessary or appropriate to reduce the relevant sentence to three years.
2.46 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness, in relation to the powers under section 36D, of reducing the relevant sentence to three years.
2.47 In Scrutiny Digest 7 of 2019 the committee requested the minister's more detailed advice as to why it is necessary and appropriate to remove the obligation of the minister to observe the requirements of natural justice when making a determination to cease a person's citizenship under proposed section 36B or 36D.
2.48 The committee considered that it may be appropriate to (a) amend proposed subsection 36F(3) to require that the minister must give additional notice in circumstances where the original notice was not received and the minister is aware of the person's electronic address; and (b) amend paragraph 36H(2)(b) to allow for applications for revocation of the determination in these circumstances to be made within 90 days. The committee also requested the minister's advice in relation to this.
Minister's response
2.49 The minister advised:
The Bill does not remove natural justice from the citizenship cessation process. Under existing sections 33AA and 35, natural justice is not afforded to the person unless the Minister considers rescinding and exempting them from the cessation. Existing section 35A provides natural justice at the point in time when the Minister considers making a cessation determination.
The Bill provides that if the Minister gives notice of cessation to the affected person, that person may apply to the Minister to have the determination revoked (section 36H). The Minister must observe the rules of natural justice in relation to that process. As such, the Bill introduces natural justice for a person ceased under section 36B (current 33AA and 35) and alters the point in time when natural justice is afforded to a person ceased under section 36D (current 35A). The removal of the requirement to provide natural justice in advance of a determination under section 36D is offset by the provision in proposed section 36H, which provides the right to seek revocation of a cessation determination. Likewise, under the current provisions, while the Minister must provide natural justice if exercising the discretionary power to rescind and exempt a person from the cessation, the Bill reverses this position and provides that the Minister must consider an application under 36H.
The structure of an initial decision without natural justice, followed by a revocation process in which natural justice applies, mirrors provisions in the Migration Act 1958. In addition, affording natural justice after the cessation determination removes the potential for the Minister’s determination being frustrated by the person taking steps to remove their second citizenship, thus nullifying the Minister’s ability to consider the person for cessation of citizenship. This possibility was also recognised by the INSLM, whose recommended model also excluded natural justice at the initial stage (see page 59 of the INSLM Report).
Although natural justice is excluded from the Minister’s cessation determination, it is relevant to note that an affected person has the right to access judicial review of that decision.
The Minister will consider amending the Bill so that section 36F(3) provides requires that the Minister must, not may, give additional notice in circumstances where the original notice was not received and the Minister is aware of the person's electronic address.
The Minister will also give consideration to amending the Bill so that section 36H(2)(b) provides an affected person a period greater than 30 days to make an application for revocation if notice of the cessation is provided a second time in accordance with section 36F(3).
Committee comment
2.50 The committee thanks the minister for this response. The committee notes the minister's advice that the structure of an initial decision without natural justice, followed by a revocation process in which natural justice applies, mirrors provisions in the Migration Act 1958 and that affording natural justice after the cessation determination removes the potential for the minister’s determination being frustrated by the person taking steps to remove their second citizenship, thus nullifying the minister’s ability to consider the person for cessation of citizenship.
2.51 However, the committee reiterates that it does not consider that providing natural justice at the point where a person applies to have a citizenship cessation determination revoked adequately compensates for the removal of natural justice at earlier stages. This is particularly the case noting the seriousness of a citizenship cessation decision, which includes an immediate impact on the reputation of a person. In addition, the committee reiterates that there may be limitations on the effectiveness of the provision of natural justice at the application for revokation stage. Proposed subsection 36F(6) allows for the removal of information from a notice to a person regarding a cessation of citizenship determination if the information is operationally sensitive, could prejudice national security, could endanger a person's safety or is contrary to the public interest for any other reason. It remains unclear whether the requirement to observe the rules of natural justice would extend to the minister providing an applicant with any information that had initially been excluded from a notice of decision on these grounds. As a result, it may be difficult in practice for a person to successfully demonstrate or raise evidence responding to allegations they had engaged in certain conduct if the person is not provided with sufficient details as to why a cessation of citizenship determination has been made against them. The committee notes that these limitations have not been addressed by the minister.
2.52 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing that the minister will not be required to observe the requirements of natural justice when making a determination to cease a person's citizenship under proposed section 36B or 36D.
2.53 The committee welcomes the minister's advice that he will consider bringing forward amendments to:
• subsection 36F(3) to provide that the minister must, rather than may, give additional notice in circumstances where the original notice was not received and the minister is aware of the person's electronic address; and
• paragraph 36H(2)(b) to provide an affected person with a period greater than 30 days to make an application for revocation if notice of the cessation is provided a second time in accordance with subsection 36F(3).
2.54 The committee will monitor the passage of this bill to ascertain whether any amendments along these lines are circulated by the government, and will report in a future Scrutiny Digest its views on any such amendments.
2.55 In Scrutiny Digest 7 of 2019 the committee requested the minister's more detailed advice as to whether proposed section 36K provides adequate judicial oversight of the factual determinations upon which cessation of citizenship decisions (made under sections 36B, 36D and 36H) are, in substance, based.
Minister's response
2.56 The minister advised:
A determination by the Minister under section 36B and 36D, or a decision by the Minister under proposed subsection 36H(3) is subject to judicial review by the Federal Court and High Court. As such, the usual grounds for judicial review of administration decisions would be available. This allows the Federal Court and High Court to have adequate oversight over issues such as whether the Minister has reached his or her satisfaction reasonably by identifying the correct issues, asking the correct questions or taking into account relevant material, or whether the decision is affected by irrationality, illogicality or unreasonableness.
Paragraphs 36K(1)(a) to (c) do not limit the scope of a court’s powers or the usual grounds of judicial review identified above. Rather, it sets out additional consequences if the events in paragraphs 36K(1)(a) to (c) occur, by outlining that the determination made under subsection 36B(1) and 36D(1) is taken to be revoked, without any decision or exercise of power by the Minister. If this occurs, then the person’s citizenship is also taken never to have ceased.
The Bill affords appropriate mechanisms for judicial review, which allow a court to consider whether or not the powers under proposed sections 36B, 36D and 36H have been exercised lawfully.
Committee comment
2.57 The committee thanks the minister for this response. The committee notes the minister's advice that the usual grounds for judicial review will be available and that this would allow the Federal Court and High Court to have adequate oversight over issues such as whether the minister has reached his or her satisfaction reasonably by identifying the correct issues, asking the correct questions or taking into account relevant material, or whether the decision is affected by irrationality, illogicality or unreasonableness.
2.58 The committee further notes the minister's advice that paragraphs 36K(1)(a)–(c) do not limit the scope of a court’s powers or the usual grounds of judicial review and that the bill affords appropriate mechanisms for judicial review, which allow a court to consider whether or not the powers under proposed sections 36B, 36D and 36H have been exercised lawfully.
2.59 The committee notes this advice, however the committee reiterates that in circumstances where a court is asked to determine whether the minister was lawfully 'satisfied' of relevant matters the court is not required to determine whether the considerations of the minister were factually correct. The result is that in a judicial review proceeding, the court would not be required to determine whether the person did not engage in the conduct to which a section 36B determination relates. Neither would a court, in a judicial review of a section 36B or section 36D determination, necessarily, be required to make a factual finding as to whether a person is a national or citizen of a foreign country. Nor would such factual matters necessarily be resolved in proceedings for declaratory relief as to whether the conditions giving rise to the cessation of citizenship have been met. The committee considers that the minister's response has not adequately addressed these concerns.
2.60 The committee further reiterates that even if these factual matters were directly at issue in a proceeding for declaratory relief, the applicant would bear the onus of proof. This would require the affected person to establish, on the balance of probabilities, that they did not engage in the relevant conduct or were not a national or citizen of another country. Practical difficulties may arise in discharging this burden, the fairness of which is not addressed in the explanatory materials or the minister's response. For example, requiring the applicant to prove a negative (for example that they did not engage in certain conduct) may not be reasonable or feasible in particular circumstances. In addition, evidence held by the government may be subject to a claim of public interest immunity if national security information is involved. These factors may limit the effectiveness of a person's ability to have a determination to cease their citizenship automatically revoked.
2.61 The committee reiterates that its concerns over the adequacy of judicial oversight provided by section 36K are exacerbated by the breadth of the powers granted to the minister and the exclusion of procedural fairness for initial decisions (an exclusion which does not appear to be redressed through the procedures set out in section 36H).
2.62 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the adequacy of judicial oversight of the factual determinations upon which cessation of citizenship decisions (made under sections 36B, 36D and 36H) are to be based.
2.63 In Scrutiny Digest 7 of 2019 the committee requests the minister's more detailed advice as to the necessity and appropriateness of retrospectively applying the power to remove citizenship based on conduct engaged in, or convictions made, up to 16 years ago.
Minister's response
2.64 The minister advised:
The Bill proposes that section 36B(5)(a)-(h) and 36D apply from 29 May 2003 as this was the date the offences referenced in 36D were fully enacted in the Criminal Code Amendment (Terrorism) Act 2003. Providing for both 36B and 36D to apply in respect of conduct (s36B) or convictions (s36D) to the same date ensures legislative consistency between the two provisions. Further, there is a natural synergy to use that date as the point in time to assess conduct, as the conduct provisions are broadly based on the offences.
In adopting a Ministerial decision-making model, not everyone who has engaged in conduct or was subject to a terrorist-related conviction from 29 May 2003 onwards will necessarily have their citizenship ceased. Under the proposed model, the Minister must consider a range of factors including the severity of the conduct and the degree of threat currently posed by the person at the time of consideration. This requires the Minister to weigh up a number of public interest considerations in deciding whether a person’s citizenship should cease. Further, once the Minister makes a cessation determination, the person’s citizenship is taken to have ceased from the date of that determination.
For conduct specified in proposed paragraph 36B(5)(j) which relates to where an individual serves in the armed forces of a country at war with Australia, proposed section 36B applies to any such conduct before or after commencement of the Bill. This reflects a long standing provision dating back to the Australian Citizenship Act 1948, which provided that an Australian citizen who, under the law of a foreign country, is a national or citizen of that country and serves in the armed forces of a country at war with Australia shall, upon commencing so to serve, cease to be an Australian citizen.
Committee comment
2.65 The committee thanks the minister for this response. The committee notes the minister's advice that in adopting a ministerial decision-making model, not everyone who has engaged in conduct or was subject to a terrorist-related conviction from 29 May 2003 onwards will necessarily have their citizenship ceased. The committee further notes the minister's advice that under the proposed model, the minister must consider a range of factors including the severity of the conduct and the degree of threat currently posed by the person.
2.66 The committee notes this advice; however, the committee reiterates that it is a fundamental principle of the rule of law that the existence of an offence and penalty be established prospectively. From a scrutiny perspective, the committee does not consider that either the minister's response or the explanatory memorandum provide an adequate justification for the retrospective application of a provision of this nature.
2.67 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of retrospectively applying the power to remove citizenship based on conduct engaged in, or convictions made, up to 16 years ago.
[4] Schedule 1, item 9, proposed sections 36B and 36D. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, pp. 5-7.
[6] The minister responded to the committee's comments in a letter received 8 November 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest
[7] See, for example, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
[8] See, for example, Minister for Immigration and Border Protection v SXVFW [2018] HCA 30, [12], [52], [135].
[9] Schedule 1, item 9, proposed subsections 36B(2) and 36D(2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[10] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, pp. 7-8.
[11] The committee notes that the statement of compatibility states that a person whose citizenship ceases under these provisions would hold an 'ex-citizen visa', but that this may be subject to cancellation under the Migration Act 1958.
[12] Schedule 1, item 9, proposed sections 36B and 36D. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).
[13] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, p. 8.
[14] Schedule 1, item 9, proposed section 36C. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[15] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, p. 9.
[16] Schedule 1, item 9, proposed section 36D. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[17] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, pp. 9-10.
[18] Subsection 93(8AA) of the Commonwealth Electoral Act 1918.
[19] Parliamentary Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, September 2015, pp. 115-116.
[20] Schedule 1, item 9, proposed subsections 36B(11) and 36D(9) and sections 36F, 36H, 36K. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).
[21] Schedule 1, item 9, proposed section 36K. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).
[22] Schedule 1, items 18 and 19. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
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