1. Introduction

Referral of the Bill

1.1

The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (the Bill) was introduced into the House of Representatives by the Hon Peter Dutton MP, Minister for Home Affairs on 19 September 2019.

1.2

In his second reading speech Minister Dutton said:

The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 continues the coalition government's effort to address the threat of terrorism and to deliver on our commitment to keep the Australian community safe. It's central reform and it provides for ministerial decision-making with respect to the cessation of Australian citizenship, replacing the current automatic operation of law provisions. Under this model, the Minister for Home Affairs can cease a person's Australian citizenship if satisfied that their conduct demonstrates a repudiation of their allegiance to Australia and that it is not in the public interest for the person to remain an Australian citizen.1

1.3

On 19 September 2019, the Hon Peter Dutton MP, Minister for Home Affairs, wrote to the Committee to refer the provisions of the Bill to the Committee for inquiry and report.

1.4

In addition the Minister referred to the Independent National Security Legislation Monitor’s (INSLM) Report to the Attorney-General: Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 stating that the Bill ‘implements the majority of the recommendations made by the INSLM.’2

Conduct of the inquiry

1.5

The Committee resolved to undertake an inquiry into the Bill and details of the inquiry were uploaded to the Committee’s website, www.aph.gov.au/pjcis, on 19 September 2019. Calls for submissions were announced the same day, with submissions requested by 14 October 2019.

1.6

The Committee received 21 submissions and 9 supplementary submissions. A list of submissions received can be found at Appendix A.

1.7

The Committee held a public hearing on 18 October 2019. A list of witnesses appearing at the hearings can be found at Appendix B.

1.8

Copies of submissions, the transcript from the public hearing and links to the Bill and Explanatory Memorandum, can be accessed at the Committee’s website.

1.9

The Committee notes that many submitters have taken the time to submit to the Committee’s inquiries into the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018, the Committee’s review into the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act 2007 and to this Bill. The Committee acknowledges and thanks those submitters for providing very useful information to the Committee’s inquiries.

Report structure

1.10

This report comprises two chapters:

This chapter sets out the conduct of the inquiry, discusses the Independent National Security Legislation Monitor’s (INSLM) Report to the Attorney-General: Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 and provides an outline of the Bill and its rationale,

Chapter two includes the Committee’s consideration of the Bill, the Committee’s comments and a list of recommendations.

1.11

In addition to the appendices mentioned above two further appendices have been included in the report as follows:

Appendix C – Flow chart of citizenship cessation; and

Appendix D – Relevant offences under proposed section 36D.

The Independent National Security Legislation Monitor’s (INSLM) Report

1.12

The Bill implements much of the recommendation contained in the Independent National Security Legislation Monitor’s (INSLM) Report to the Attorney-General: Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007.3

1.13

The INSLM concluded that:

(a) s 35A is necessary, proportionate to the counter-terrorism threat and generally contains appropriate safeguards for protecting the rights of individuals; but that

(b) ss 33AA and s 35 are neither necessary nor proportionate, nor do they contain appropriate safeguards for protecting the rights of individuals;

(c) ss 33AA and 35 should urgently be repealed and, especially because of their uncontrolled and uncertain operation, be repealed retrospectively; but that

(d) a Ministerial decision-making model with proper safeguards could take the place of ss 33AA and 35 and such a model would pass muster under the INSLM Act because it would:

i. be constitutionally valid

ii. be necessary and proportionate to threats

iii. ensure compliance with international obligations

iv. properly protect individual rights4

The Bill

1.14

The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 amends Division 3 of Part 2 of Australian Citizenship Act 2007 (the Act) 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 specified terrorism-related conduct;

fighting for, or being in the service of, a declared terrorist organisation outside Australia. A declared terrorist organisation is any terrorist organisation within the meaning of paragraph (b) of the definition of a terrorist organisation in subsection 102.1(1) of the Criminal Code, that the Minister, by legislative instrument, declares is a declared terrorist organisation for the purposes of this section;

engaging in conduct that results in a conviction for a specified terrorism offence, and sentenced to a period of imprisonment of at least 3 years, or periods totalling at least 3 years.

1.15

The amendments provide for a period in which the individual subject to a determination resulting in the cessation of their citizenship can apply to the Minister for Home Affairs to have this determination revoked. It also provides for the Minister for Home Affairs to revoke a determination on his or her own initiative, or for the determination to be automatically revoked in certain circumstances.

1.16

The Bill also makes a number of other amendments to the citizenship cessation provisions, including:

transitional provisions that deal with cases where a person may have lost their citizenship under the current provisions but for whom there has been no Ministerial awareness. Any new cases that come to light will be treated under the provisions of the Bill;

amending the sentence term threshold for which a person convicted of a specified terrorism offence may be considered for citizenship cessation, from 6 years to 3 years;

extending the time period in which persons convicted of a specified terrorism offence resulting in at least 3 years imprisonment may be considered for citizenship cessation, such that persons convicted of such a specified terrorism offence from 29 May 2003 could be considered for citizenship cessation;

extending the time period in which persons who engaged in specified conduct may be considered for citizenship cessation, such that conduct engaged in after 29 May 2003 could be considered for citizenship cessation (compared to 12 December 2015 at present).5

1.17

The Bill consists of 1 Schedule amending the following three Acts:

the Australian Citizenship Act 2007 (Citizenship Act);

the Independent National Security Legislation Monitor Act 2010 (INSLM Act); and

the Intelligence Services Act 2001 (ISA).

Amendments to the Australian Citizenship Act 2007

1.18

The Bill will repeal existing sections 33AA, 35 to 35B and 36A of the Citizenship Act. These previsions are set out in Chapter One of this report and form the basis on which dual citizens’ citizenship either ceases or is revoked.

1.19

In place of the current citizenship cessation and revocation regime the Item 9 of the Bill inserts new sections 36A-L to create a new legislative scheme in 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 conduct as set out above.

Conduct based provisions

1.20

Proposed section 36B provides that the Minister may determine in writing that a person aged 14 or older ceases to be an Australian citizen if the Minister is satisfied that the person engaged in the following conduct while outside Australia as set out in proposed subsection 36A(5)(a) –(j) or has engaged in conduct specified in any of paragraphs (5)(a) to (h) while in Australia, has since left Australia and has not been tried for an offence in relation to the conduct. Paragraph 5 is as follows:

(a) engaging in international terrorist activities using explosive or lethal devices;

(b) engaging in a terrorist act;

(d) directing the activities of a terrorist organisation;

(e) recruiting for a terrorist organisation;

(f) financing terrorism;

(g) financing a terrorist;

(h) engaging in foreign incursions and recruitment;

(i) fighting for, or being in the service of, a declared terrorist organisation (see section 36C);

(j) serving in the armed forces of a country at war with Australia.6

1.21

The Minister must not make a determination if the Minister is satisfied that the person would, if the Minister were to make the determination, become a person who is not a national or citizen of any country.

1.22

Proposed section 36C sets out that a declared terrorist organisation is any within the meaning of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code, that the Minister, by legislative instrument, declares is a declared terrorist organisation for the purposes of this section.

1.23

In addition to the conduct outlined above the Minister must be satisfied that the conduct demonstrates that the person has repudiated their allegiance to Australia; and it would be contrary to the public interest for the person to remain an Australian citizen.

1.24

The powers of the Minister under proposed section 36B may only be exercised by the Minister personally. The rules of natural justice do not apply in relation to making a decision or exercising a power under this proposed section and a determination is not a legislative instrument.

Conviction based provisions

1.25

Proposed section 36D provides that the Minister may determine in writing that a person ceases to be an Australian citizen if:

the person has been convicted of an offence, or offences, against one or more of the provisions specified

(the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 3 years, or to periods of imprisonment that total at least 3 years; and

the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia; and

the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

1.26

1.27

The specified offence provisions are:

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 Division 82 of the Criminal Code (sabotage), other than section 82.9; 4

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 section 102.8 or Division 104 or 105;

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

section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.

1.28

The relevant provisions of all the offences that constitute a relevant terrorism conviction are included in a table at Appendix D.

1.29

The powers of the Minister under proposed section 36D may only be exercised by the Minister personally, the rules of natural justice do not apply in relation to making a decision or exercising a power under this proposed section and determination is not a legislative instrument.

The public interest test

1.30

Proposed section 36E applies when the Minister is considering the public interest for the purposes of deciding whether to make a determination under subsection 36B(1) or 36D(1), or whether to revoke such a determination. The Minister must have regard to the following matters:

in deciding whether to make a determination under subsection 36B(1) or revoke such a determination—the severity of the conduct to which the determination relates;

in deciding whether to make a determination under subsection 36D(1) or revoke such a determination—the severity of the conduct that was the basis of the conviction or convictions, and the sentence or sentences, to which the determination relates;

the degree of threat posed by the person to the Australian community;

the age of the person;

if the person is aged under 18—the best interests of the child as a primary consideration;

in deciding whether to make a determination under subsection 36B(1) or revoke such a determination—whether the person is being or is likely to be prosecuted in relation to conduct to which the determination relates;

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;

Australia’s international relations;

any other matters of public interest.

Notice provisions

1.31

Proposed section 36F provides for notice of citizenship cessation. Notice of citizenship cessation determined under proposed subsection 36B(1) or 36D(1) must be given in writing as soon as practicable after the determination is made or, if the Minister makes a determination under that notice should not be given to the person (see subsection 36G below)—as soon as practicable after the determination under that subsection is revoked.

1.32

The Minister may also give notice of the determination to such other persons and at such time as the Minister considers appropriate.

1.33

Notice must be given to the person by sending it by pre-paid post to the address of the place of residence of the person last known to the Department. The Minister may, after giving the notice by post, give the notice again by sending it to an electronic address for the person if they are satisfied the person did not receive the notice by post and they have become aware of the electronic address for the person.

1.34

The Minister may give the notice by sending it to an electronic address without sending it via post if they become aware of the electronic address for the person:

while a determination is in force that notice should not be given to the person; and,

that determination is revoked.

1.35

A notice given as above must set out the Minister’s determination that the person has ceased to be an Australian citizen; and for a determination under subsection 36B(1)—contain a basic description of the conduct to which the determination relates; and for a determination under subsection 36D(1)—specify the conviction or convictions, and sentence or sentences, to which the determination relates. The date of the notice must be specified and must set out the person’s rights of review.

1.36

The notice must not contain information, or content of a document, if the information or content includes any operationally sensitive information or the disclosure of the information or content could prejudice:

the security, defence or international relations of Australia; or

the performance by a law enforcement or security agency of its functions; or

the disclosure of the information or content could endanger a person’s safety; or

the disclosure of the information or content would be likely to be contrary to the public interest for any other reason.

1.37

The rules of natural justice do not apply in relation to making a decision or exercising a power under proposed section 36F.

1.38

Proposed section 36G provides that a Minister may determine in writing that notice of citizenship cessation should not be given to a person if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations.

1.39

The Minister must consider whether to revoke the determination at least every 90 days after making it. If the Minister does not revoke the determination within 5 years of making it, the determination is taken to be revoked at the end of the 5 years unless the Minister extends the determination.

1.40

If, before the determination is taken to be revoked the Minister remains satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations, the Minister may extend the determination for 1 year by making a determination in writing to that effect.

1.41

If the Minister extends the determination for 1 year, the Minister must consider whether to revoke the determination at least every 90 days after extending it; and the determination is taken to be revoked at the end of that year.

1.42

The powers of the Minister under proposed section 36G may only be exercised by the Minister personally, the rules of natural justice do not apply in relation to making a decision or exercising a power under this proposed section and determination is not a legislative instrument.

1.43

Notification of decision provisions contained in section 47 of the Citizenship Act do not apply to a decision of the Minister under proposed section 36G.

Revocation of citizenship cessation

1.44

Proposed section 36H provides that a person who has ceased to be an Australian citizen because of a determination made under subsection 36B(1) or 36D(1) may apply in writing to the Minister to have the determination revoked.7 Such an application must be made no later than the following:

90 days after the date of the notice given under paragraph 36F(1)(a) in relation to the determination;

if the notice was given to the person again by sending it to an electronic address in accordance with subsection 36F(3)—30 days after the day the notice was sent to the electronic address.

1.45

The Minister must consider the application and either revoke the determination or refuse the application. The Minister must revoke the determination if they:

are satisfied that, at the time the determination was made, the person was not a national or citizen of any other country; or

for a determination made under subsection 36B(1)—the Minister is satisfied that the person did not engage in the conduct to which the determination relates.

1.46

If neither of the above applies the Minister may revoke the determination if satisfied that revoking determination would be in the public interest as set out above.

1.47

The Minister must give the person written notice of their decision under subsection . The notice must:

set out the decision; and

if the Minister refused the application

include the reasons for the decision; and

set out the person’s rights of review

1.48

Notification of decision provisions contained in section 47 of the Citizenship Act do not apply to a decision of the Minister under proposed section 36H.

1.49

the security, defence or international relations of Australia; or

the performance by a law enforcement or security agency of its functions; or

the disclosure of the information or content could endanger a person’s safety; or

the disclosure of the information or content would be likely to be contrary to the public interest for any other reason.

1.50

If the Minister revokes the determination the person’s citizenship is taken never to have ceased because of the determination. However, the validity of anything done in reliance on the determination before the revocation is not affected. The person may only apply once to the Minister in relation to the determination. The powers of the Minister under this section may only be exercised by the Minister personally.

Parliamentary reporting

1.51

Item 11 repeals subsection 51B(1) and substitutes words that ensure that as soon as practicable after each reporting period, the Minister must table a report in each House of the Parliament that sets out the following:

the number of notices given by the Minister under paragraph 36F(1)(a) (notice of citizenship cessation) during the reporting period;

for each notice that was given under paragraph 36F(1)(a) during the reporting period—a brief statement of the matters that are the basis for the determination to which the notice relates;

(the number of notices given by the Minister under subsection 36H(4) during the reporting period (notice of decision on application to have citizenship cessation determination revoked).

1.52

Item 12 repeals subsections 51C(1) and (2) and substitutes words that require that the Minister must, in writing, inform the Parliamentary Joint Committee on Intelligence and Security as soon as practicable if any of the following events occurs:

the Minister gives a person a notice under paragraph 36F(1)(a) (notice of citizenship cessation);

the Minister makes a determination under subsection 36G(1) (that notice of citizenship cessation should not be given);

the Minister gives a person notice, under subsection 36H(4) or 36J(3), that the Minister has decided to revoke a determination made under subsection 36B(1) or 36D(1).

1.53

Item 13 repeals subsection 51C(5) and substitutes words that ensure that any briefing to the Parliamentary Joint Committee on Intelligence and Security must include details of the matters that are the basis for the notice, determination or revocation.

Application and transitional provisions

1.54

Item 17 sets out how the provisions of the proposed Bill will apply to those persons whose citizenship ceased under existing section 33AA or 35.

1.55

Subitem 18(1) makes clear that new section 36B applies in relation to conduct specified in 36B(5)(a)-(h) engaged in on or after 29 May 2003, regardless of whether the conduct commenced before, on, or after 29 May 2003.

1.56

Subitem 18(2) provides new section 36B applies in relation to conduct specified in 36B(5)(i) engaged in on or after 12 December 2015, regardless of whether the conduct commenced before, on or after that date.

1.57

Subitem 18(3) provides new section 36B applies in relation to conduct specified in 36B(5)(j) whether it was engaged in before, on or after commencement.

1.58

Item 19 makes clear that new section 36D applies in relation to the conviction of a person:

that occurs after commencement; or

that occurred before commencement if:

the conviction occurred on or after 29 May 2003, and;

the person was sentenced to a period of imprisonment of at least 3 years, or to periods of imprisonment that total at least 3 years, in respect of the conviction.

1.59

The retrospectivity provisions are outlined in the following table.

Table 1.1: Application of retrospectivity to provisions of the Bill

Section/Subsection	Date conduct engaged in/conviction to apply
36B(5)(a) engaging in international terrorist activities using explosive or lethal devices;	(a) the conduct was engaged in on or after 29 May 2003 1 (whether the conduct commenced before, on or after that 2 date); and (b) the conduct is not conduct to which a designated non-citizen 4 determination relates.
36B(5)(b) engaging in a terrorist act	(a) the conduct was engaged in on or after 29 May 2003 1 (whether the conduct commenced before, on or after that 2 date); and (b) the conduct is not conduct to which a designated non-citizen 4 determination relates.
36B(5)(c) providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;	(a) the conduct was engaged in on or after 29 May 2003 1 (whether the conduct commenced before, on or after that 2 date); and (b) the conduct is not conduct to which a designated non-citizen 4 determination relates.
36B(5)(d) directing the activities of a terrorist organisation	(a) the conduct was engaged in on or after 29 May 2003 1 (whether the conduct commenced before, on or after that 2 date); and (b) the conduct is not conduct to which a designated non-citizen 4 determination relates.
36B(5)(e) recruiting for a terrorist organisation	(a) the conduct was engaged in on or after 29 May 2003 1 (whether the conduct commenced before, on or after that 2 date); and (b) the conduct is not conduct to which a designated non-citizen 4 determination relates.
36B(5) (f) financing terrorism	(a) the conduct was engaged in on or after 29 May 2003 1 (whether the conduct commenced before, on or after that 2 date); and (b) the conduct is not conduct to which a designated non-citizen 4 determination relates.
36B(5)(g) financing a terrorist	(a) the conduct was engaged in on or after 29 May 2003 1 (whether the conduct commenced before, on or after that 2 date); and (b) the conduct is not conduct to which a designated non-citizen 4 determination relates.
36B(5)(h) engaging in foreign incursions and recruitment	(a) the conduct was engaged in on or after 29 May 2003 1 (whether the conduct commenced before, on or after that 2 date); and (b) the conduct is not conduct to which a designated non-citizen 4 determination relates.
36B(5((i) fighting for, or being in the service of, a declared terrorist organisation (see section 36C)	(a) the conduct was engaged in on or after 12 December 2015 8 (whether the conduct commenced before, on or after that 9 date); and 10 (b) the conduct is not conduct to which a designated non-citizen 11 determination relates
36B(5)(j) serving in the armed forces of a country at war with Australia.	conduct was engaged in before or after commencement, unless a designated non-citizen determination relates to the conduct.
36D convictions provision	applies in relation to a conviction of a person: (a) that occurs after commencement; or (b) that occurred before commencement, if: (i) the conviction occurred on or after 29 May 2003; and (ii) the person was sentenced to a period of imprisonment of at least 3 years, or to periods of imprisonment that total at least 3 years, in respect of the conviction.

Source: Australian Citizenship Amendment (Citizenship Cessation) Bill 2019

Amendments to the Independent National Security Legislation Monitor Act 2010

1.60

Part 1 of the Independent National Security Legislation Monitor Act 2010 sets out a number of preliminary matters. Existing section 4 of Part 1 provides definitions of relevant terms in the Independent National Security Legislation Monitor Act 2010.

1.61

Item 14 repeals existing paragraph 4(aa) of the definition of counter-terrorism and national security legislation and substitutes:

Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 (citizenship cessation determinations) and any other provision of that Act so far as it relates to that Subdivision

1.62

The purpose of this item is to enable the Independent National Security Legislation Monitor to review, on his or her own initiative, the operation, effectiveness and implications of the provisions.

1.63

In relation to this the Explanatory Memorandum states that:

It is important that the new provisions are able to be reviewed to determine their operation as intended, to enforce 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.8

Amendments to the Intelligence Services Act 2001

1.64

Item 15 repeals existing paragraph 29(1)(ca) of the Intelligence Services Act 2001, which currently provides that the Parliamentary Joint Committee on Intelligence and Security is to review the operation, effectiveness and implications of sections 33AA, 35 and 35A of the Citizenship Act, by 1 December 2019.

1.65

New paragraph 29(1)(ca) extends the review date to 30 June 2021 and provides that Subdivision C of Division 3 of Part 2 as amended by the proposed provisions of the Bill are the subject for the review, as well as any other provision of the Citizenship Act as far as it relates to those sections.

1.66

The purpose of this item is to require the Parliamentary Joint Committee on Intelligence and Security to review the operation, effectiveness and implications of, the amended Citizenship Act, and to clarify that the Committee need not review existing provisions 33AA, 35 and 35A of the Citizenship Act.

1.67