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

We heard during the second reading debate on this legislation assurances given to the Senate to the effect that, under the provisions of this legislation, no-one will lose their citizenship due to untested suspicions or concerns. Attorney, is it the case that no-one will lose their citizenship due to untested suspicions or concerns? Who will be testing suspicions or concerns and what will be the burden of proof? Will the test applied be that someone has breached the criteria set out, specifically renunciation by conduct in section 33AA? So the first question is: who will test any suspicions or concerns? The second question is: what test will that person or those persons apply? Will they be required to satisfy themselves beyond reasonable doubt or to a comfortable satisfaction that the criteria had been breached or will it be on balance of probabilities?

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

In relation to section 33AA, which, as you say, is the renunciation by conduct provision, the onlydecision which will result in a loss of citizenship is a decision by a person to renounce their allegiance to Australia by engaging in one of the specified forms of terrorist conduct set out in the section. As I explained yesterday, under section 33AA, which is based on a very longstanding provision going back to 1948, no decision is made by a government decision maker which has the result of the person losing their citizenship. The decision to renounce their citizenship is a decision for the person who does the renunciation constituted by the act.

Senator McKim, you asked about burden of proof but I think you meant standard of proof, which is a term used to describe the level of satisfaction that a court must have in judicial proceedings, but section 33AA does not operate as a judicial proceeding—there is no judicial proceeding involved. In fact, as I said to you a moment ago, there is no governmental decision of a legislative, executive or judicial character involved. It is merely the deeming by this provision, were this bill to be passed, of certain conduct to constitute the renunciation of citizenship and the renunciation of citizenship is complete upon the engagement in that conduct. So that issue just does not arise.

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

I thank the Attorney for his response but it nevertheless remains the case that, upon renunciation of citizenship, certain other consequences, I would presume, would flow, such as, for example, removal from the electoral roll, should that person be on the electoral roll, or the cancellation of a passport. Could the Attorney please take the Senate through how those subsequent machinery actions, if you like, will be applied by the various agencies that are responsible for those matters? Specifically, Attorney, I absolutely accept, under the terms of this legislation, that citizenship is renounced by conduct. That is clear in section 33AA, but is it not the case that, unless the government knows about the conduct that is relevant and which breaches the criteria established in section 33AA, then all of the subsequent effects that would ordinarily be given to a renunciation of citizenship would not occur if the government does not know that the action has been taken—that is, the action that breaches the criteria set out in section 33AA? Is it not the case, if the government does not know that an Australian citizen has breached the criteria established in section 33AA, notwithstanding the fact that technically their citizenship has been renounced by that action in terms of the provision of this legislation, that a person could still return to Australia with an Australian passport and could still vote in elections in Australia because the government has simply not become aware that the action that breaches the criteria established in section 33AA has occurred?

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

Senator McKim, it is a good question, and I think that your choice of the words 'machinery provisions' is very apt, if I may say so.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Order! It being 12.45, the committee will now report progress.

Progress reported.