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

Again, thanks, Attorney. You referenced the chapter III problem that you are trying to avoid here in the way that you have crafted this legislation. I do understand that that is your intent here—to avoid a chapter III problem—but I would submit to the Senate that, in your desire to avoid a chapter III problem, you have created a massive uncertainty around what level of certainty an agency would need to arrive at before they would start providing advice up the chain that would ultimately culminate in advice from the department to a minister to issue a notice under the provisions of this statute.

Can I follow on from the last part of your answer, Attorney, by asking you: in the event of a judicial review of—actually, first, can I ask: is the judicial review into the issuing of a notice or would it be a judicial review of the conduct itself that then triggered the renunciation of the citizenship? Do you see the question I am asking? Would the judicial review be a merits based review into whether or not the conduct occurred or would it simply be a review into the issuing of a notice? Secondly, what would the standard of proof be in that judicial review? Of course, the citizenship is already gone, so it is not the government applying to the courts to have the citizenship removed; it is the claimant applying to the courts to have the citizenship restored. So what would the standard of proof be in any judicial review?