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

To come directly to your question and then I will respond to some of the other things you said in your contribution, Senator. These provisions are restricted to people offshore or to conduct that occurred offshore. I do not exclude the possibility that there could be the exception of offshore conduct engaged in by a person who has subsequently come back to Australia. But that would be an unusual case. In the ordinary case, we are dealing with people who are never going to be tried by an Australian court. That is the first point.

Secondly, of course the second part of these provisions, section 35A, specifically contemplates that the minister may revoke citizenship only after a judicial proceeding—after a court has convicted a person of a specified terrorism related crime.

But since you concentrated on the renunciation by conduct provisions, and in particular the issuance of the notice under subsection 33AA(10), what you have said, Senator, with respect, amounts to nothing more than this: that the minister might get it wrong and, of course, it is possible that any administrative decision maker might make a mistake. Of course that is the case: the whole edifice of administrative law in a sense is built upon a correction of errors by executive government or administrative decision makers. That is why we have judicial review and that is why the act specifically spells out that the issuance of a notice is subject to judicial review either in the High Court under section 75 of the Constitution or in the Federal Court under section 39B of the Judiciary Act.

That is why as well, Senator McKim, we have subsection 24, which provides: to avoid doubt, a person's citizenship is taken never to have ceased under this section, because of particular conduct. If, in proceedings under section 75 of the Constitution or under this act or another Commonwealth act, a court finds that the person did not engage in the conduct or have the requisite intention under subsection 3; or in proceedings under section 75 of the Constitution or under this act or another Commonwealth act, a court finds that the person was not a national or citizen of a country other than Australia at the time of the conduct; or the minister makes a determination under subsection 14 in relation to the conduct to exempt the person from the effect of this section; or a declaration under section 35AA is disallowed by either house of the parliament. That is not quite so relevant, but subparagraphs (a) and (b) of subsection 33AA(24) have been put there specifically to protect a person in the event that he or she successfully applies for judicial review and to reinstate the status quo ante, and to guarantee that no adverse legal consequences or impediments flow from an erroneous ministerial decision. That is the whole point of having a specific provision for judicial review.