(Oct. 6, 2020) On September 17, 2020, the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) (2020 Amendment Act) was signed into law, with the legislation having been passed by the Parliament on September 3. The Act amends the Australian Citizenship Act 2007 (Cth) to replace the previous system, established by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) (2015 Amendment Act), for the cessation of Australian citizenship of persons who also hold citizenship of another country and who engage in certain terrorism-related conduct.
Previous System
As explained in the Australian Parliamentary Library’s Bills Digest regarding the 2019 bill that became the 2020 Amendment Act, the 2015 Amendment Act amended the Australian Citizenship Act “to include two new grounds on which dual citizens could lose their Australian citizenship, and to expand one of the existing grounds”:
- Section 33AA of the Citizenship Act provides that a dual citizen aged 14 years or over renounces their Australian citizenship if the person ‘acts inconsistently with their allegiance to Australia’ by engaging in specified conduct (such as terrorist acts; foreign incursions; and providing or receiving training connected to preparations for, engagement in, or assistance in, a terrorist act).
- Section 35 of the Citizenship Act was expanded to provide that the Australian citizenship of a dual citizen aged 14 years or over ceases if the person fights for, or is in the service of, a terrorist organisation declared by the Minister under section 35AA (new in the 2015 Bill) or serves in the armed forces of a country at war with Australia (existing).
- Section 35A of the Citizenship Act allows the Minister to determine in writing that a dual citizen ceases to be an Australian citizen if:
– the person has been convicted of an offence or offences against one or more specified provisions (these include, amongst others, most offences against Part 5.3 (terrorism) and offences against Part 5.5 (foreign incursions and recruitment) of the Criminal Code Act 1995 (Criminal Code))
– the person has been sentenced to imprisonment for at least six years for the conviction/s
– the Minister is satisfied that the conduct to which the conviction/s relate demonstrates that the person has repudiated their allegiance to Australia and
– having regard to specified factors, the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen. (Bills Digest pp. 5-6.)
The 2015 Amendment Act was passed to address terrorism threats associated with Australian “foreign fighters,” being those with Australian citizenship who fought with overseas terrorist or insurgent groups. A key concern “was the potential threat posed by foreign fighters to domestic security upon their return.” According to the Bills Digest,
[a]s at 18 October 2019, at least 17 people had lost their Australian citizenship under provisions amended or introduced by the 2015 Act, all under the conduct-based provisions. However, the Department has stated that due to the automatic operation of the conduct-based provisions, there may be cases where an individual’s Australian citizenship has ceased under the law, but the Government is not aware that has occurred. (Id. p. 8.)
New System
The bill to introduce a new citizenship cessation system was introduced in September 2019. It was intended to “address the Independent National Security [L]egislation Monitor’s recommendation that the current ‘operation of law’ model, whereby a dual-national’s Australian citizenship is automatically renounced through their actions, be replaced by a Ministerial decision model.”
As explained by the Parliamentary Joint Committee on Intelligence and Security in its advisory report on the bill (PJCIS Report), the 2020 Amendment Act repeals existing sections 33AA, 35 to 35B, and 36A of the Australian Citizenship Act and inserts new sections 36A-L, which “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. (PJCIS Report p. 4.)
The amendments also 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” and 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.” (Id.)
The 2020 Amendment Act extends the time period in which persons convicted of a specified terrorism offense resulting in at least three years imprisonment, or who engaged in specified conduct, may be considered for citizenship cessation, such that convictions or conduct after May 29, 2003, could be considered for citizenship cessation. (Id. p. 5.)
In either conduct-based on conviction-based cessation, “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.” (Id. pp. 6 & 7.) In addition, “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.” (Id.) The Act expressly states that “[t]he rules of natural justice do not apply in relation to making a decision or exercising a power” under the provisions (id.), meaning that “the Minister is not required to advise the person of the case against them, and provide an opportunity to respond, prior to making a decision.” However, where a person makes an application to have a determination revoked, “the Minister is required to observe the rules of natural justice.”