George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

When the debate adjourned earlier in the day, Senator McKim had just asked me a question in relation to the operation of section 33AA, and I hope, Senator McKim, I do justice in paraphrasing your question. I am sure that, if you do not think I do, you will pull me up. The point of your question, as I understood it, is: how can this provision operate effectively, given that it depends upon the renunciation of citizenship by conduct, when it may well be that the minister who has to give the notice as a result of which certain consequential events will happen, for example, removal from the electoral roll, which is the best example, may not become aware of the fact that the person concerned has in fact engaged in defined conduct whereby they have renounced their citizenship.

Senator McKim, the answer to your question is that it is not uncommon at all in the law for an act of parliament to deem that certain conduct carries with it certain legal consequences, irrespective of whether or not that conduct immediately comes to the notice of government. One analogy that my attention has been drawn to is in the revenue law, where, for example, the Income Tax Assessment Act deems certain transactions to have a particular effect in creating a tax liability, and that liability is immediate upon the transactions being entered into or given effect to, whether or not the Commissioner of Taxation is aware of them. Often that is in the context of tax fraud, of course, so ordinarily the Commissioner of Taxation would not become aware of them, but when he does then he will issue a notice of assessment, and certain other legal consequences will follow from an administrative point of view. But the liability which the act attracts is a liability which, from a legal point of view, is complete upon the happening of the events which the act describes. It does not depend upon an awareness of or notice being taken of those acts by a responsible minister.

That is an analogy with this provision. In the case of the provision before us we would say that, when a person engages in conduct which the statute deems to be the renunciation of allegiance to Australia and therefore of Australian citizenship, that is the end of the matter. That is the end of the matter from a legal or a juridical point of view. It does not depend upon the minister becoming aware of it, but it may well be that nothing happens administratively as a consequence of that, just as nothing happens administratively as a consequence of entering into a proscribed, unlawful transaction from a taxation law point of view. But when the minister does become aware of those matters, then he issues a notice which sets in train a series of administrative consequences. So this is not, from the point of view of the way this legislation works, a legal problem for it. It may be an administrative problem, but it is not a legal problem.