Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 amends the Australian Citizenship Act 2007 to enable the Minister to make an application to request that a court exercises its power to make an order to cease a dual citizen’s Australian citizenship, where the person has been convicted of a serious offence or offences.
Under the 2020 legislation, section 36B allowed the Minister to make a determination that a dual national’s Australian citizenship ceased where the person demonstrated conduct that repudiated their allegiance to Australia, and that it would not be in the public interest for the person to remain an Australian citizen. Section 36D listed the circumstances where the Minister was allowed to make such determination.
Sections 36B and 36D were found invalid by the High Court in Alexander v Minister for Home Affairs [2022] HCA 19 (Alexander) and Benbrika v Minister for Home Affairs [2023] HCA 33 (Benbrika) respectively.
The High Court while invalidating these sections, held that the provisions conferred on the Minister an exclusively judicial function of adjudging and punishing criminal guilt which can only be exercised by a court.
Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 provides that the Minister may make an application to a court, before the person has been sentenced, enlivening the court’s discretionary power to make a citizenship cessation order in certain circumstances as part of sentencing on conviction of a person for certain serious offences.
The Bill provides that in order to support the court’s consideration and decision whether to make an order ceasing the person’s Australian citizenship, the Minister’s application to the court must include information about the person’s age, Australian citizenship and nationality or citizenship of any other countries. The Minister would be required to give the person written notice of the application as soon as practicable after the application is made and may give written notice of the application to any other persons the Minister considers appropriate.
The amendments in the Bill would provide that a court may make a citizenship cessation order in certain circumstances as part of sentencing if:
- a person is convicted of one or more serious offences; and
- the court has decided to impose on the person, in respect of the conviction or convictions, a period of imprisonment that is at least 3 years or periods of imprisonment that total at least 3 years; and
- before the court imposes the sentence or sentences on the person in respect of the conviction or convictions, the Minister makes an application for a citizenship cessation order in relation to the person; and
- the court is satisfied that the person is aged 14 or over, the person is an Australian citizen, the person is a national or citizen of another country, and the person’s conduct to which the conviction or convictions relate is so serious and significant that it demonstrates that the person has repudiated their allegiance to Australia.
The Bill is registered on the Federal Register of Legislation on 1 December 2023 and will commence on the day after this Act receives the Royal Assent.
To access the Bill, click here.
