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

You say: is there any precedent in administrative law. It is a straightforward case of administrative law when an administrative decision maker is charged by a statute with the obligation to perform an administrative act—in this case, the issuance of a notice—according to being satisfied as to certain criteria. The language that section 33AA(10), which is the relevant provision, uses is:

If the Minister becomes aware of conduct because of which a person has, under this section, ceased to be an Australian citizen, the Minister must give written notice to that effect—

And so it goes on. What the statute requires of the minister is that he has become aware of conduct of the kind described in the statute. That is all.

This is elaborated upon by paragraph 38 of the supplementary explanatory memorandum, which I might read to you because it is germane. It is probably useful to have it on the record, although it is a little long:

Upon becoming aware of the relevant conduct, the Minister is obliged to give written notice of the cessation of citizenship to the person as soon as practicable. A question arises as to the level of satisfaction required of the Minister about the conduct which causes the cessation of citizenship, before a notice is issued.

That is your very point, Senator McKim, so you have, if I may say so, gone right to the heart of the matter.

The statutory requirement is the Minister is 'aware' that the individual has ceased to be an Australian citizen because of their conduct. The term aware is not defined in the provision, so it should be given its ordinary meaning. In the Macquarie dictionary, the ordinary meaning of 'aware' is 'cognisant or conscious'. In the context of other legislation, courts have found that to 'become aware' of something is to acquire subjective knowledge of it.

The precedent quoted in the supplementary explanatory memorandum is a case called Right to Life Association (NSW) Inc v Secretary of the Commonwealth Department of Human Services and Health (1994) 36 ALD 264, 267.

Knowledge is more than suspicion or belief. To issue a notice under the provision in subsection 33AA(12), the Minister should have a degree of knowledge about the conduct which gives rise to a clear mental apprehension of the existence of the conduct. The Minister should have the same mental assurance that the person is a national or citizen of a country other than Australia—

in order to meet the dual citizenship element.

That is the test: 'a clear mental apprehension of the existence of the conduct.'