inconsistently with their allegiance to Australia.15 The loss of citizenship is said to occur by operation of law.16 The Law Council of Australia submitted to the PJCIS that, absent a requirement for a conviction, somehow an assessment must be made of whether a person has engaged in what would otherwise be unlawful conduct.17 This must be so. However, it is not apparent from reading the Allegiance Act at what point an administrative decision will be made, and how that decision might be subject to any oversight. As any readers who have endeavoured to identify an administrative decision in order to challenge its legality via judicial review will appreciate this problem is one that is sadly not uncommon. Curiously, the Secretary of the Department of Immigration and Border Protection submitted to the PJCIS inquiry that the Minister is not making a decision to deprive anyone of anything.18 For my part, I am doubtful that this strategy of denying the making of a decision will withstand challenge. The Minister for Border Protection ran a similar argument in trying to suggest that his Department's processes for assessing international treaties obligations owed to the 9,258 asylum-seekers who were impacted by the infamous data breach in early 2014 did not involve the making
of a decision. The incisive analysis of the Full Federal Court in SZSSJ shows how difficult it is to avoid a conclusion that an administrative decision must be made by someone at some point.19 If a decision is made, someone must take responsibility for it. Granted, the statutory context in migration law has its peculiarities. However, even in that context, a Minister must hold ultimate responsibility for his department's decisions. The point was powerfully made by the Full Federal Court SZSSJ when, referring to s64 of the Commonwealth Constitution (Ministers of State), the Court stated:20 [This provision] reflects the orthodoxy that a Minister administers his or her Department and is responsible to the Parliament for it. Underlying the Minister's submissions in this case is an unconstitutional aspiration that administrative activity can take place within a Minister's Department for which the Minister is not to be held responsible. This is not correct. It should be noted that the Government amendments made after the PJCIS report introduced specific intent requirements that are similar, but not identical, to those in the Criminal Code 1995 (Cth).21 This appears to be an attempt to address some concerns raised with the PJCIS that the Bill as introduced may infringe
the separation of judicial power in the Constitution.22 Another issue with the new s33AA is the lack of clarity as to how it will interact with the potential for prosecution. The PJCIS spent considerable time probing the responsible agencies as to how the Commonwealth Government would act coherently when as a consequence of the same terrorism-related acts it could: •
on the one hand notify a person that he or she has lost her citizenship by conduct; and
•
on the other hand prepare for and conduct a prosecution, which upon conviction would trigger a loss of citizenship.
How ought these processes work together? Ultimately, the PJCIS concluded that the overlap between the renunciation by conduct and loss of citizenship upon conviction provisions may lead to undesirable consequences.23 To avoid the potential difficulties the Parliament adopted the recommendation of the PJCIS so that s33AA(7) now provides that s33AA does not apply to conduct by a person unless: •
the person was not in Australia when the person engaged in the conduct; or
LOOKING TO FURTHER YOUR CAREER? The College of Law Master of Applied Law (Family Law), LLM (Applied Law) and Graduate Diploma of Family Dispute Resolution Practice (FDRP) can give you the specialised skills you need! NEXT SEMESTER COMMENCES 7 MARCH 2016
EMAIL US alp@collaw.edu.au
22 | BRIEF MARCH 2016
CALL US 1300 506 402
VISIT US collaw.edu.au/alp