2016]
The Prevention and Reduction of Statelessness in Australia
491
(9) Where a person renounces their Australian citizenship under this section, the renunciation takes effect, and the Australian citizenship of
the person ceases, immediately upon the person engaging in
the conduct …203
In light of these deeming provisions, it is difficult to ascertain how any
meaningful assessment of the potentially exculpatory (mens rea) factors listed
above could be undertaken.
Second, ‘[a] person aged 14 or older’ who ‘is a national or citizen of [another] country’ automatically ceases to be an Australian citizen not only
where he or she ‘serves in the armed forces of a country at war with Australia’,
but also where he or she ‘fights for, or is in the service of, a declared terrorist
organisation’ (note that this fighting or service must occur outside Australia).204 The Act is clear that ‘[t]he person ceases to be an Australian citizen at
the time the person commences to so serve or fight’,205 and that this applies
‘regardless of how the person became an Australian citizen (including a
person who became an Australian citizen upon the person’s birth).’206 However, a person is deemed not to be in the service of a declared terrorist organisation to the extent that ‘(a) the person’s actions are unintentional; or (b) the
person is acting under duress or force; or (c) the person is providing neutral
and independent humanitarian assistance.’207 However, given the lack of a
clear procedure to make such determinations, discussed below, it is unclear
how effective these potential defences could be in practice.
Third, the Minister may determine that a person ceases to be an Australian citizen if he or she has been convicted of a specified offence in contravention of named provisions of the Criminal Code Act 1995 (Cth), Crimes Act
1914 (Cth) and the repealed Crimes (Foreign Incursions and Recruitment) Act
1978 (Cth).208 These include offences relating to international terrorist
activities using explosive or lethal devices,209 terrorism,210 foreign incursions
and recruitment,211 treason (materially assisting enemies etc),212 espionage
203
Ibid ss 33AA(4), (9).
204
Ibid s 35(1).
205
Ibid s 35(2).
206
Ibid s 35(3).
207
Ibid s 35(4).
208
Ibid s 35A(1)(a).
209
Criminal Code Act 1995 (Cth) sch 1 div 72 sub-div A.
210
Ibid sch 1 pt 5.3.
211
Ibid sch 1 pt 5.5.