Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

To offer a little commentary on the exchange that we have just had—and I am not sure that this will offer any comfort to Senator Xenophon—the reference to section 91.1 of the Criminal Code is in proposed section 35A, which provides a discretion for the minister to determine in writing that a person ceases to be an Australian citizen, not a requirement that that occur. But nevertheless it is worth pointing out that, if there were to be any contravention of section 91.1 of the Criminal Code, it would certainly be open to a minister to strip citizenship from someone in those circumstances.

Attorney, I wanted to return—I hope reasonably briefly—to the matters we were exploring yesterday. I will preface my question by making it clear that this question is in the context of the issuance of a notice under proposed subsection 10, not the renunciation due to conduct. It goes again to the matter we were exploring, which is the level of satisfaction that a minister would be required to have prior to issuing such a notice under proposed subsection 10 of 33AA. You have very helpfully—and I thanked you for it yesterday—placed on the record that the minister would have to have a degree of knowledge about the conduct which would give rise to a clear mental apprehension of the existence of the conduct. To put that in lay terms—and I stress that these are my words, not yours—I would interpret the words 'clear mental apprehension' to be of a standard of proof above reasonably certain, but you may have a commentary on that. You may be able to inform the Senate of legal precedent which defines the words 'clear mental apprehension'.

The first question I wanted to ask you—and as I said, I have been a minister, as obviously you have for some time—is: would you agree that advice to the minister from a department that the relevant conduct had occurred which offended the criteria in proposed section 33AA would meet the level of satisfaction that the minister would need to have prior to issuing the notice?