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competence of any agency or department’’.’257 It is questionable in these
circumstances whether an internal, unaccountable and unreviewable process
can accurately and appropriately allow for the analysis required to ensure that
the renunciation provisions do not render a person stateless.
Although the Minister may make a determination to rescind a renunciation of citizenship notice, and thus exempt a person from the effect of his or
her conduct, the Minister is not required to consider: (a) whether to exercise
this discretion at all, or (b) any particular matters in deciding whether to
consider exercising the discretion.258 Further, the Act explicitly provides that
there is no requirement on the Minister to provide notice or reasons for
deciding not to consider exercising the discretion,259 and that the rules of
natural justice do not apply to, inter alia, ‘any decision whether to consider
exercising the power’ to exercise the discretion.260 It is only once the Minister
has decided to consider whether to exercise the discretion that he or she ‘must
have regard to’ a series of factors that include ‘the person’s connection to the
other country of which the person is a national or citizen and the availability
of the rights of citizenship of that country to the person’.261 However, even in
this context there is no requirement to consider whether the person is indeed
a national or citizen of another country.
The only safeguard lies in ss 33AA(24) and 35(19), which provide that ‘a
person’s citizenship is taken never to have ceased under’ the operative sections
(in relation to specified conduct) if, inter alia, ‘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.262 However, this protection is
unlikely to be effective. Even if the Minister’s ‘reasonable attempts’ to provide
the relevant notice of revocation are successful, a person to whom these
provisions apply is, by definition, likely to be outside Australia; the resources
257
Parliamentary Joint Committee on Intelligence and Security, above n 188, 38 [4.15] quoting
Evidence to Parliamentary Joint Committee on Intelligence and Security, Parliament of
Australia, Canberra, 5 August 2015, 57 (Michael Pezzullo, Secretary, Department of Immigration and Border Protection).
258
Citizenship Act ss 33AA (15)--(16).
259
Ibid s 33AA(21).
260
Ibid s 33AA(22). All of these provisions are replicated in s 35.
261
Ibid ss 33AA(17)(f), 35(12)(f).
262
Ibid ss 33AA(24)(b), 35(19)(b).