Supplmentary Explanatory Memorandum relating to sheet JC578
(Circulated by authority of the Attorney General, the Hon. Christian Porter MP)Notes on Amendments
SCHEDULE 10 - Amendments
Australian Citizenship Act 2007
Amendment 1 - Subsection 35A(1)
Relevant terrorism conviction
1. This Amendment repeals subsection 35A(1) of the Citizenship Act, and replaces it with new subsections 35A(1A), (1B) and (1).
2. Current subsection 35A(1) provides that the Minister may determine in writing that a person ceases to be an Australian citizen if, amongst other things:
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- the person has been convicted of one or more terrorism or certain other offences; and
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- in respect of those convictions, has been sentenced to a single or cumulative period of at least 6 years imprisonment; and
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- the person is a national or citizen of a country other than Australia at the time the Minister makes the determination.
3. New subsections 35A(1A) and (1B) separate the offences listed in current subsection 35A(1) into relevant terrorism convictions and relevant other convictions respectively.
4. New subsection 35A(1A) provides that a person has a relevant terrorism conviction if they have been convicted of an offence, or offences against one or more of the following:
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- a provision of Subdivision A of Division 72 of the Criminal Code;
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- a provision of Subdivision B of Division 80 of the Criminal Code (treason );
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- a provision of Part 5.3 of the Criminal Code (except Division 104 or 105);
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- a provision of Part 5.5 of the Criminal Code;
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- section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.
5. New subsection 35A(1A) does not include any offences that are not captured by current subsection 35A(1), with the exception that an offence under section 102.8 of Part 5.3 of the Criminal Code (associating with a terrorist organisation) would now fall within scope of the provision. This offence is excluded under current subsection 35A(1), as the offence carries a maximum penalty of 3 years' imprisonment.
6. Inclusion of the section 102.8 offence under subsection 35A(1A) recognises that knowingly associating with a terrorist organisation, on multiple occasions, for the purposes of supporting the terrorist organisation to expand or continue to exist, is a serious offence. It is appropriate that persons convicted of this offence be eligible for cessation of citizenship on conviction, as the offence addresses the fundamental unacceptability of the terrorist organisation itself, by making meeting or communicating ("associating") with its members in a manner which assists its continued existence or expansion, illegal.
Relevant other conviction
7. New paragraph 35A(1B)(a) provides that a person has a relevant other conviction if they have been convicted of an offence, or offences against one or more of the provisions of Division 82 of the Criminal Code (sabotage) other than section 82.9 (preparing for or planning sabotage), Division 91 of the Criminal Code (espionage) or Division 92 of the Criminal Code (foreign interference).
8. New paragraph 35A(1B)(b) requires that the person has been sentenced to a single or cumulative period of at least 6 years' imprisonment in respect of the conviction or convictions. This amendment is consequential to the repeal of current paragraph 35A(1)(b) and, subject to new paragraph 35A(1)(b), maintains the current operation of subsection 35A(1) insofar as it relates to offences other than terrorism offences.
Cessation of citizenship on determination by Minister
9. New subsection 35A(1) sets out the circumstances in which the Minister may determine, in writing, that a person ceases to be an Australian citizen.
10. New paragraph 35A(1)(a) provides that the person must have a relevant terrorism conviction or a relevant other conviction. This is consequential to the insertion of new subsections 35A(1A) and 35A(1B), which separate terrorism and other convictions.
11. New paragraph 35A(1)(b) provides that the Minister must be satisfied that the person would not become a person who is not a national or citizen of any country if their Australian citizenship were to cease. Currently, paragraph 35A(1)(c) permits the Minster to determine that a person ceases to be an Australian citizen if the person is a national or citizen of a country other than Australia.
12. New paragraph 35A(1)(b) adjusts the threshold for dual citizenship to capture Australian citizens who the Minister is satisfied will not become a person who is not a national or citizen of any country as a result of cessation of citizenship. This is consistent with other provisions of the Citizenship Act. For example, current paragraph 34(3)(b) of the Citizenship Act provides that the Minister must not revoke a person's Australian citizenship on the basis of certain offences or fraud if the Minister is satisfied that the person would become a person who is not a national or citizen of any country. It is well-established under case law that where statute provides a Minister must be 'satisfied' of a matter, it is to be understood as requiring the attainment of that satisfaction reasonably. For consistency with other existing provisions of the Citizenship Act, new paragraph 35A(1)(b) thus requires the Minister to be 'satisfied' the person will not become a person who is not a national or citizen of any country.
13. Consistent with the operation of the current provisions of the Citizenship Act, including current paragraph 34(3)(b), it is not the intention that new paragraph 35A(1)(b) would allow the Minister to determine that a person ceases to be an Australian citizen in breach of Australia's international obligations regarding statelessness.
14. New paragraphs 35A(1)(c) and 35A(1)(d) preserve current paragraphs 35A(1)(d) and 35A(1)(e) respectively. These amendments are not intended to change the operation of the current, equivalent provisions.
15. New subsection 35A(1) does not retain current paragraph 35A(1)(b), which requires the person to have been sentenced to a single or cumulative period of at least 6 years imprisonment in respect of the relevant conviction or convictions in order to allow the Minister to determine that the person ceases to be an Australian citizen.
16. It is no longer the intention that the minimum 6 years' sentence period applies to persons with a relevant terrorism conviction. The effect of this is that the Australian citizenship of any person convicted of a relevant terrorism offence on or after 12 December 2005 will be subject to cessation of citizenship under new subsection 35A(1) (see Amendment 4). In light of the evolving terrorist threat, the Government considers it appropriate that the Minister be able to consider for cessation of citizenship all persons convicted of a terrorist offence after 12 December 2005, as conduct which poses harm to the Australian community. This includes, for example, offences against section 102.8 of the Criminal Code in relation to associating with a terrorist organisation for the purposes of supporting the terrorist organisation to expand or continue to exist; an offence which carries a maximum penalty of 3 years' imprisonment.
17. It will continue to be a requirement that a person who has a relevant other conviction must have been sentenced to a single or cumulative period of at least 6 years imprisonment in respect of the relevant conviction or convictions in order to allow the Minister to determine that the person ceases to be an Australian citizen (see new paragraph 35A(1B)(b)).
Amendment 2 - Subsection 35A(4)
18. This Amendment omits "paragraph (1)(b)" and substitutes it with "paragraph(1B)(b)". This Amendment is consequential to Amendment 1 of this Schedule, which repeals and replaces subsection 35A(1) of the Citizenship Act.
Amendment 3 - Paragraph 35A(4)(b)
19. This Amendment omits "paragraph (1)(a)", wherever it appears, and substitutes it with "paragraph(1B)(a)". This Amendment is consequential to Amendment 1 of this Schedule, which repeals and replaces subsection 35A(1) of the Citizenship Act.
Amendment 4 - Application and saving provisions
20. Amendment 4 sets out the application provisions that relate to Amendments 1-3 of this Schedule.
21. Subamendment 4(1) provides that the amendments made by Amendments 1 - 3 of this Schedule apply in relation to persons who became Australian citizens before, on or after the commencement of this Amendment.
22. Subamendment 4(2) provides that the amendments made by Amendments 1-3 of this Schedule apply in relation to a relevant terrorism conviction, as defined in new subsection 35(1A), occurring on or after 12 December 2005.
23. Subamendment 4(3) provides that the amendments made by Amendments 1-3 of this Schedule apply in relation to a relevant other conviction, as defined in new subsection 35(1B), of a person if:
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- (a) the conviction occurred on or after 12 December 2005; and
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- (b) if the conviction occurred before 12 December 2015 - the person was sentenced to a period of at least 10 years in respect of the conviction.
24. Subamendment 4(3) is consistent with the current application section 35A of the Citizenship Act, insofar as it relates to persons convicted of offences other than terrorism offences.
25. Subamendment 4(4) provides that the amendments made by Amendments 1-3 of this Schedule do not affect the validity of a determination made under subsection 35A(1) of the Australian Citizenship Act 2007 before the commencement of this Amendment.