Federal Court of Australia

Spall v Minister for Home Affairs [2025] FCAFC 75

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the costs of the appeal on a standard basis, as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The Appellant, Mr Stephen Spall, appeals from a decision of a single judge of this Court, and her Honour’s conclusion that the Administrative Appeals Tribunal (AAT) did not fall into error when it decided that Mr Spall had been sentenced to a “serious prison sentence” within the meaning of s 34(5) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act). For the reasons that follow, we agree with the primary judge’s conclusion that the outcome in the AAT proceeding discloses no error. The appeal will be dismissed.

Background

2    This proceeding has a long history. It is not necessary to recount it in detail. However, it is appropriate to note a number of events relevant to the present appeal. Mr Spall was born in England in 1966 and is a citizen of the United Kingdom of Great Britain and Northen Ireland. He arrived in Australia in November 1978. Between June 1995 and June 1996, Mr Spall committed two indecent acts with two different children, each 12 years of age. The offending was not reported at the time.

3    Australian citizenship was conferred on Mr Spall on 4 March 1997.

4    Some time later, Mr Spall’s offending from 1995 and 1996 was reported and investigated. This led to criminal proceedings in the County Court of Victoria. He pleaded guilty to two charges of committing an indecent act with a child under the age of 16. On 21 March 2018 he was sentenced to a period of imprisonment of nine months for each offence. The County Court ordered that three months of the sentence for the first charge be served cumulatively upon the sentence imposed for the second charge. The result was that the total effective sentence was 12 months.

5    On 7 May 2020, the Minister decided to revoke Mr Spall’s Australian citizenship under s 34(2)(b)(ii) of the Citizenship Act. That decision was made on the basis that Mr Spall had, at a time after making his application to become an Australian citizen, been “convicted of a serious offence” within the meaning of s 34(5) of the Citizenship Act. That provision relevantly defined “convicted of a serious offence” as follows (emphasis original):

(5)    For the purposes of this section, a person has been convicted of a serious offence if:

(a)     the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and

(b)     the person committed the offence at any time before the person became an Australian citizen.

6    A “serious prison sentence” was defined by s 3 of the Citizenship Act to mean “a sentence of imprisonment for a period of at least 12 months”.

7    Mr Spall applied to the AAT for review of the Minister’s decision. At the AAT, Mr Spall challenged the decision on grounds which are not relevant to this appeal. At that stage, he conceded that he had received a “serious prison sentence” within the meaning of s 3 and had therefore been “convicted of a serious offence”. The AAT affirmed the Minister’s decision on 18 November 2021.

8    A notice of appeal from the decision of the AAT was filed in this Court on 14 December 2021. There was some delay while the validity of s 34(2)(b)(ii) was considered by the High Court in separate proceedings (Jones v Commonwealth [2023] HCA 34; 97 ALJR 936 (Jones)). Mr Spall’s appeal was then heard by a single judge of this Court. In that hearing, the Court considered whether the AAT had correctly applied the test for whether it is “contrary to the public interest” for a person to continue as an Australian citizen. Additionally, for the first time, Mr Spall argued that he had not been “convicted of a serious offence” as defined in s 34(5) of the Citizenship Act, because in relation to each conviction he was sentenced to only nine months’ imprisonment rather than 12 months’ imprisonment.

9    The application was dismissed on 2 August 2024 (Spall v Minister for Home Affairs [2024] FCA 849 (Primary Judgment)). One ground of appeal was pursued in this appeal, being:

Whether the expression “the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence” in s 34(5) of the AC Act allows for more than one “offence” to be brought to account in relation to the determination of the “serious prison sentence”?

10    It is this ground which we now consider, below.

The statutory framework

11    The statutory framework was set out by the primary judge at [17]-[44] of the Primary Judgment. We agree with that description, and we do not repeat it here, save for a few salient features.

12    The Australian Citizenship Act 1948 (Cth) (1948 Act) contained provisions for the conferral of citizenship when Mr Spall’s citizenship was conferred in March 1997. At that time, s 13 of the 1948 Act provided that the Minister could grant a certificate of Australian citizenship if the Minister was satisfied that the person met certain criteria, including being of good character (s 13(1)(f)). In 2007, the 1948 Act was repealed, and replaced by the Citizenship Act. This did not affect the citizenship status of Mr Spall. He continued to be a citizen, and to be categorized as a person who had obtained citizenship by conferral under Subdivision B of Division 2 of Part 2 of the Citizenship Act (as set out at Primary Judgment, [22]).

13    The Citizenship Act contains within it a mechanism for the removal of citizenship by the Minister in particular, confined, circumstances. This proceeding concerns those provisions as they stood at 7 May 2020. While there have been amendments to the legislation in the intervening period, we refer to the Citizenship Act in the present tense for the sake of convenience, and identify where any subsequent amendments are relevant to the analysis.

14    Section 34(2) was included in the Citizenship Act from its inception in 2007. It confers a discretion on the Minister to revoke the citizenship of a person who obtained their citizenship by conferral. Relevantly for this case, s 34(2)(b)(ii) is directed to revocation where citizenship has been conferred and where “the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5)”. The Minister must also be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen (s 34(2)(c)).

15    Mr Spall argues that the importance of citizenship can be discerned from the Citizenship Act, and that this should militate in favour of a stricter and narrower application of s 34. Of course, legislation rarely pursues a single purpose at all costs (Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [7] (Gleeson CJ)). In some instances, such as the present, legislation reflects a balance that the Parliament has struck between competing purposes. Here, the balance enacted by s 34(2) recognises the importance of citizenship to those who hold it, as well as the need to protect the integrity of the processes by which citizenship is conferred, by legislating for a mechanism by which a grant of citizenship that is later considered to have been inappropriate may be reversed. It is implicit in the provision that s 34 is directed at least in part to rectifying a conferral of citizenship that might not have been made, had the fact of the individual’s offending been known. The plurality in Jones at [11]-[35] (Kiefel CJ, Gageler, Gleeson and Jagot JJ)) addressed the legislative history and purpose of the relevant provisions relating to the revocation or loss of Australian citizenship obtained by conferral (see also [65]-[73] (Gordon J), [174]-[177] (Edelman J) and [198]-[201] (Steward J)). The plurality there made observations about the genesis of s 21(1)(a)(i) of the Bill which became the Australian Citizenship Amendment Act 1984 (Cth). Their Honours observed (at [18]-[19] (citations omitted)):

The policy intent revealed by the Ministerial Statement in 1982 was elaborated on the following year by a successor of Mr Macphee in the office of Minister for Immigration and Ethnic Affairs, Mr West, in his second reading speech for the Bill which became the 1984 Amendment Act. With implicit reference to s 21(1)(a)(i), Mr West said that “[i]n the case of a person obtaining Australian citizenship by fraud, deceit, the concealment of information or any other dishonest means, the Minister will have discretion to deprive that person of citizenship”. With implicit reference to s 21(1)(a)(ii), he added:

“This discretion also extends to a person convicted of a major offence committed, but not known about, before that grant of citizenship. I stress that deprivation of Australian citizenship could only occur for offences committed before the grant of citizenship. Moreover, it will occur only if the responsible Minister, after careful consideration of all the facts, is satisfied that it is in the public interest for a person not to remain an Australian citizen. The law will not allow a person to be deprived of citizenship if it has been obtained properly and honestly.”

The purpose of s 21(1)(a)(ii) of the 1948 Act – the “public interest sought to be protected and enhanced” by that provision – was accordingly revealed by the Ministerial Statement and the second reading speech not to be the imposition of punishment in addition to that imposed by a court on the conviction of the person concerned. The purpose of s 21(1)(a)(ii) was rather aligned with the purpose of s 21(1)(a)(i). The purpose of both was to safeguard the integrity of the administrative function by which ministerial satisfaction that the person was of good character was a prerequisite to the person being granted Australian citizenship and in respect of which conviction of a serious offence would have been relevant to the performance of that function.

16    Accordingly, while we accept the significance of a person’s citizenship, we perceive that one purpose pursued by the Citizenship Act is the safeguarding of the integrity of the process by which such a right is conferred.

17    As noted by the primary judge, the phrase “convicted of a serious offence” is only used in s 34(2)(b)(ii) and the definition in s 34(5) is expressly confined so that it applies only to s 34. By contrast, the term “serious prison sentence” is used in other parts of the Citizenship Act.

18    At the time that the Mr Spall’s citizenship was revoked, s 35A was part of the Citizenship Act. That provision provided for the cessation of citizenship on determination by the Minister in certain circumstances, including where the person has been convicted of “an offence against, or offences against” particular categories of crime where the person has “in respect of the conviction or convictions” been sentenced to “a period of imprisonment of at least 6 years, or to periods of imprisonment that total at least 6 years”. Section 35A was repealed on 18 September 2020 by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth).

19    There have been subsequent amendments to the Citizenship Act, following various challenges to the validity of different provisions. In 2023, amendments were introduced by the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (Cth) in response to Alexander v Minister for Home Affairs [2022] HCA 19; 276 CLR 336 and Benbrika v Minister for Home Affairs [2023] HCA 33; 97 ALJR 899 (2023 Amendments). The 2023 Amendments repealed certain invalid provisions, and set out a regime by which the Minister could make an application to a court, requesting an order to cease a dual citizen’s Australian citizenship following that person’s conviction of “one or more serious offences”. The 2023 Amendments did not alter s 34, or the definition of “serious prison sentence” in s 3 of the Citizenship Act.

20    As is the case with all Commonwealth legislation, the provisions of the Citizenship Act are to be construed by reference to the Acts Interpretation Act 1901 (Cth) (Interpretation Act) unless a contrary intention appears. Section 2 of the Interpretation Act provides:

2    Application of Act

(1)    This Act applies to all Acts (including this Act).

Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.

(2)    However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.

21    This appeal was particularly concerned with the terms of s 23(b) of the Interpretation Act, which provides:

23    Rules as to gender and number

In any Act:

…

(b)     words in the singular number include the plural and words in the plural number include the singular.

22    The effect of ss 23(b) and 2(2) together is that the singular includes the plural (rule as to number) in s 34 of the Citizenship Act, unless there is a contrary intention. As the primary judge noted (at [63]) a contrary intention will be manifested if:

… the statutory text to be construed is “clearly inconsistent with” the Interpretation Act provision sought to be applied: Attorney-General (Queensland) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485, [52] (Gaudron, McHugh, Gummow and Hayne JJ). The leading authority as to whether a contrary intention has been manifested is Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651; [1970] AC 827, in which the Privy Council explained at 656:

Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting legislation and furthermore to consider the substance and tenor of the legislation as a whole.

23    In some instances, a contrary intention can be discerned where the statute under consideration expressly and carefully chooses between the singular and the plural (Commissioner of State Revenue (Vic) v The Muir Electrical Co Pty Ltd [2003] VSCA 112; 8 VR 200 at [14] (Callaway JA; Ormiston and Eames JJA agreeing); Taylor v The Queen [2020] VSCA 50; 281 A Crim R 478 at [79] (Priest, Hargrave and Weinberg JJA)) or where pluralising or singularising radically alters the character of the provision (Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 (Blue Metal Industries) at 658 (Lord Morris)). These cases were referred to in the Primary Judgment at [65]. The way in which these concepts were deployed in this appeal is analysed in the next section.

The argument on appeal

24    This appeal concerns the construction of s 34(2)(b)(ii), when the definition of “serious offence” is incorporated from s 34(5). The definition in s 34(5), in turn, incorporates the definition of “serious prison sentence” from s 3 of the Citizenship Act. If the phrase in s 34(2) were read by incorporating the two defined terms, it would be rendered as follows:

34    Revocation by Minister—offences or fraud

…

(2)    The Minister may, by writing, revoke a person’s Australian citizenship if:

…

(b)     any of the following apply:

…

(ii)    the person has, at any time after making the application to become an Australian citizen, been convicted of [an offence against an Australian law for which the person has been sentenced to a [sentence of imprisonment for a period of at least 12 months]]; …

25    Unless a contrary intention is found, the rule as to number would mean that s 34(5)(a) of the Citizenship Act would be read as referring to a person being “convicted of an offence or offences” for which the person had been sentenced to a sentence of imprisonment of at least 12 months.

26    As the argument developed orally, counsel for Mr Spall sought to distinguish a single “aggregate sentence” imposed for multiple offences from a “total effective sentence” imposed following conviction for multiple offences. It was said that the former would satisfy s 34(2)(b)(ii) where the latter would not.

27    The core question on this appeal is whether, on the proper construction of the legislation, the Minister’s power is triggered only where a single conviction leads to a single sentence of imprisonment for at least 12 months, be it aggregate or prior to cumulation.

28    It is said by Mr Spall that the trigger for the Minister’s power is the person being “convicted of an offence”, and that one then looks to the sentence for that offence. On Mr Spall’s submissions, the provision operates by reference to the “composite concept” of a sentence being imposed for an offence. Mr Spall submits that, if it is accepted that the provision operates by reference to that “composite concept”, it would be unintelligible to apply s 23(b) of the Interpretation Act to “pluralise the sentence” since “a conviction only ever carries a single sentence” (emphasis in original). Thus, it is said, the provision does not speak of “convictions” but only a single “conviction” and that the rule as to number is relevantly displaced. In aid of this submission, Mr Spall advances textual and contextual arguments, which we have analysed below.

29    Initially, in the course of oral submissions, Mr Spall accepted that, unless he could displace the application of the rule as to number, pluralisation would necessarily mean that his appeal would fail. Having made a submission that the “accumulation” of distinct sentences in a way that resulted in a person being imprisoned for 12 months or more “is more work than the pluralisation rule would contemplate”, Mr Spall clarified his earlier concession. Mr Spall said that he accepted that pluralisation may not be wholly displaced, in that the rule as to number may allow s 34(2)(b)(ii) to apply in a case where a single “aggregate sentence” had been imposed for multiple offences. He nevertheless still accepted that if, contrary to his submission, “pluralisation works in the case of total effective sentences as well”, his appeal would not succeed. As a result, there is some lack of clarity in Mr Spall’s argument as to whether he maintains that he may succeed even if he fails to demonstrate a contrary intention displacing the rule as to number pursuant to s 23(b) of the Interpretation Act. We return to this below.

30    The Minister argues that there is no contrary intention manifested in the legislation, and that, indeed, the more harmonious reading comfortably permits the Court to be satisfied that Mr Spall was sentenced to a “serious prison sentence” when he was sentenced for two convictions against an Australian law, for which the total effective sentence was 12 months. The Minister submits that there was no error in the primary judge’s reasoning (at Primary Judgment [68]) that:

The proxy that Parliament has chosen for determining whether the person has relevantly been convicted focusses on the length of the period of imprisonment and the timing of the offending conduct and the conviction relative to the grant of citizenship.

31    The Minister submits that her Honour correctly identified that only some convictions engage the revocation power in s 34(2), and the filter which Parliament has chosen in s 34(2)(b)(ii) is, relevantly, the length of the sentence (as opposed to, for instance, the nature of the offending). The Minister argues that the mere fact that s 34(5)(a) refers to both the conviction and the sentence does not deny this conclusion.

Analysis

32    This appeal involves the application of well understood principles of statutory construction, with the text considered in light of its context and purpose (SAS Trustee Corporation v Miles [2018] HCA 55; 265 CLR 137 at [20] (Kiefel CJ, Bell and Nettle JJ); see also [41] (Gageler J) and [64] (Edelman J)). While it is the text that is guiding, in carrying out that task, courts will prefer a construction that would best achieve the purpose or object of the Act over a construction that would not promote that purpose or object (Interpretation Act, s 15AA).

33    We first address the bases upon which it was suggested that the rule as to number has been displaced on the basis that the legislation evinces a contrary intention for the purposes of ss 2(2) and 23 of the Interpretation Act. As we explain in the course of our analysis, even if Mr Spall maintained an argument that his construction does not depend on displacing the rule as to number (see [29] above), that argument depends on construing the provision as operating by reference only to conviction and sentence as a “composite concept”, which is an argument we reject.

Is s 35 “unintelligible” if pluralised?

34    Mr Spall argues that the provision reflects a composite notion where the trigger is being convicted of an offence for which the sentence imposed was imprisonment for 12 months or more. Mr Spall argues that, because a conviction only ever carries a single sentence, it would be “unintelligible” to apply the rule as to number.

35    This argument is circular. It construes the provision in question without reference to the rule as to number and then asserts that the provision, so construed, reflects the Parliament’s intention. We do not accept Mr Spall’s submission. As Gleeson CJ observed in Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485 at [8]:

Acts of Parliament are drafted, and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.

36    It therefore does not assist Mr Spall to construe the provision as though there was no rule as to number, and then to assert that the apparent coherence of that construction suggests it was intended to exclude the rule as to number. It also follows that, to the extent that Mr Spall advanced a case that his appeal should succeed even without showing a contrary intention, his argument proceeds from a misplaced reliance on the “composite concept” which is only arrived at by construing the provision in the circular manner to which we have referred.

37    The core difficulty for Mr Spall in this approach is that the alternative construction – incorporating the rule as to number – is at least equally coherent. Indeed, even accepting the approach that the trigger for the power is the conviction for an offence, the rule as to number would operate to refer to “a conviction or convictions” for an “offence or offences”. The fact that such sentences are grammatically difficult is one reason that the rule as to number exists: to avoid “cumbersome and over-elaborate wording” (Blue Metal Industries at 656).

38    Relatedly, Mr Spall argued that a conviction can carry only a single sentence, and that this meant that the Minister’s construction would be nonsensical. This was a facet of Mr Spall’s “composite concept” argument, the premise of which is that there is always a one-to-one relationship between a conviction and a sentence. However, as Mr Spall acknowledged, that assumption is challenged by aggregate sentencing regimes, which provide for a single sentence to be imposed in respect of more than one offence. For example, in South Australia, s 26(1) of the Sentencing Act 2017 (SA) provides that, if a person is to be sentenced by a court for a number of offences, “… the court may sentence the person to the 1 penalty for all or some of those offences …”. A provision of this kind permits a person to be sentenced to a single sentence for more than one offence, without the sentencing judge attributing any part of the sentence to a specific conviction (subject to certain exceptions set out in s 26(2)). While accepting that an aggregate sentence of 12 months or more would come within the provision, even if imposed for more than one offence, Mr Spall nevertheless maintained that the Minister’s construction would be nonsensical.

39    The aggregate sentencing example not only undermines the construction for which Mr Spall contends (because it exposes the infirmity of the assumption behind the “composite concept”), it also supports the position of the Minister in that it is to be expected that Commonwealth legislation speaking to matters of sentencing would operate in a way that would “pick up” the different sentencing regimes across the States. This is consistent with the observations of the High Court in Pearson v Commonwealth of Australia [2024] HCA 46; 99 ALJR 110 (Pearson). While that case is of limited utility to the present analysis because of the distinct statutory framework, their Honours there noted at [50] that:

[t]he natural meaning of the word “sentence” in the context of imprisonment is a “judicial judgment or pronouncement fixing a term of imprisonment”.

40    Here, it may be accepted that the identification of a conviction (or convictions) leads to a “sentence”, the length of which determines whether or not the criteria in s 34 are satisfied. The fact that the sentence may be the total effective sentence does not alter this analysis. This concept encapsulating a total effective sentence is consistent with the natural meaning of the word emphasised by the High Court in Pearson. There is no uncertainty of the kind suggested by Mr Spall.

41    Accordingly, we see no incoherence in the operation of s 34, let alone incoherence of a kind that would establish an intention to displace the rule as to number.

42    The Minister argued in the alternative that if the word “sentence” did not “pick up” the total effective sentence, then the singular word “sentence” in s 34(5) should also be treated as pluralised, where relevant, by reason of the operation of the rule as to number. In our view, it is not necessary to determine this issue because the word “sentence”, properly construed, encompasses a total effective sentence. The pluralisation of the word “sentence” raises a question about whether more than one sentence, in order to attract the operation of s 34(5), must be imposed at the same time, or whether sentences imposed at different times in respect of different offences may still trigger s 34(5). We return to this issue at [53] below.

Potentially unsatisfactory operation

43    Mr Spall argues that the construction adopted by the primary judge could lead to “unlikely or unjust outcomes”, and that this should lead to the rejection of that construction.

44    By way of example, Mr Spall submits that there might be different outcomes for two individuals – Person 1 and Person 2 – who engaged in the same criminal conduct and were charged with the same offences, depending on the circumstances in which their offending was discovered and charged.

45    In a hypothetical example, Person 1 could be convicted of two offences at the same time, and sentenced to cumulative sentences of nine months for each charge. If the rule as to number is applied, Person 1 will have been convicted of a “serious offence”.

46    Person 2 on the other hand is charged with a single offence and convicted in relation to that offence. Person 2 is sentenced to nine months in prison and has not been “convicted of a serious offence”. Some time after Person 2 is sentenced to that term of imprisonment, and while still serving the sentence for the first offence, further offending is discovered and Person 2 is charged with a second offence. Person 2 is then convicted and sentenced to a further nine months’ imprisonment, cumulative upon the first offence. Mr Spall argues that Person 2 has still not been “convicted of a serious offence” and so is not liable to the revocation of their citizenship under s 34.

47    We note that it is not necessary for us to decide whether sentences imposed at different times could trigger s 34(2)(b)(ii), but we shall assume that Mr Spall’s submission is correct for the sake of this argument. Mr Spall argues that the different consequences for the same offending between hypothetical Person 1 and Person 2 suggest that the application of the rule as to number would lead to an arbitrary or unsatisfactory result which the Parliament should not be taken to have intended. Mr Spall argues that this inconsistency supports the conclusion that a construction should be preferred under which neither Person 1 nor Person 2 should fall within s 34(2)(b)(ii).

48    On the other hand, the Minister draws attention to a kind of inconsistency in the operation of s 34(2)(b)(ii) that would arise if Mr Spall’s construction were accepted. The Minister points out that, depending on differences in the exercise of the prosecutorial discretion in different jurisdictions or in particular cases, certain offending involving a single course of conduct might be charged as a single offence (leading to a single conviction and a single sentence), or as two separate offences (leading to two convictions and two sentences producing a total effective sentence). As noted by the primary judge (at [88]), applying sentencing principles, like course of conduct and totality, the sentence to be served for the two convictions should be roughly the same as the sentence that would have been served for the single conviction. The nature of the criminal offending is the same in both cases. However, on Mr Spall’s construction, the prosecutorial choice to proceed with two charges would alter whether the person has been “convicted of a serious offence”. This may also be viewed as introducing a capricious or arbitrary operation to the scheme created by the Citizenship Act.

49    At the outset, it is appropriate to observe that each of Mr Spall’s construction and the Minister’s construction carry with them the potential for an operation which may treat the same offending differently, depending upon the circumstances of the prosecution. This alone suggests that the possibility of s 34(2)(b)(ii) applying differently in respect of similar courses of offending is not a factor which evinces an intention to exclude the rule as to number.

50    The competing constructions result in either a potential over-inclusion (on the Minister’s approach) or an over-exclusion (on Mr Spall’s approach) of people from the operation of the scheme in s 34 of the Citizenship Act. The Minister submits that there is a remedy for any anomalous over-inclusion in the form of the public interest requirement in s 34(2)(c) and the residual discretion available to the Minister. By contrast, there is no remedy available for the vice in Mr Spall’s approach, which may lead to the exclusion of individuals from the scheme created by s 34 of the Citizenship Act, and in a manner that could not be remedied by an exercise of discretion. We accept the Minister’s submission in this regard. The existence of the public interest criterion and the residual discretion mean that there is at least some scope for a Minister to ameliorate any perceived over-inclusiveness in the operation of s 34 should the Minister wish to do so. This is a consideration that tends at least slightly in favour of the Minister’s construction.

51    Mr Spall argues that the nature of the power conferred upon the Minister in s 34 and the significance of a person’s citizenship militate against the construction advanced by the Minister, and supports Mr Spall. While Mr Spall did not invoke the “principle of legality” in terms, the Minister addressed his submissions on the basis that Mr Spall’s contentions constituted an unfocused invocation of the principle of legality, of the kind deprecated by this Court and the High Court.

52    We agree that the revocation of citizenship is a significant step. However, we do not agree that this proposition alone assists Mr Spall in the context of the application of orthodox principles of construction. In addition, the integrity of the process by which the citizenship is conferred is a clear aim of the Citizenship Act, including s 34 (see [15]-[16] above). Providing the opportunity for consideration of criminal conduct that could not be taken into account at the time that citizenship was initially conferred (generally because, as here, the individual involved has concealed that conduct) does not engage the principle of legality.

53    We agree with the primary judge’s observations at [97] that there may be questions about how the Citizenship Act operates in cases where a person receives multiple sentences passed on separate occasions with an intervening period. Like the primary judge, we do not consider it necessary to resolve this issue. It is sufficient for present purposes to note that, even if the Minister’s construction gives rise to the possibility of inconsistent treatment between some ostensibly similar cases, in the overall context of the legislative scheme (including the anomalous outcomes of Mr Spall’s construction) it does not strongly militate in favour of one construction over the other. Overall, the construction of s 34(2)(b)(ii) advanced by the Minister sits more comfortably with the text, context and purpose of s 34.

The use of the singular and plural in other parts of the Citizenship Act

54    Mr Spall argues that the differential use of the singular and plural of the term “offence” in s 35A (as it stood at the relevant time) is a factor that suggests an intention to exclude the rule as to number. The examples proffered included that:

(1)    s 35A(1)(a) introduced the list of qualifying offences in the chapeau using the phrase “convicted of an offence against, or offences against, one or more of the following”; and

(2)    in s 35A(1)(b) both the singular and plural form of the words “conviction” and “period of imprisonment” were used to account for both multiple offences and multiple sentences, provided the relevant imprisonment totals at least six years’ imprisonment.

55    The argument advanced by Mr Spall is that the drafting in s 35A suggests that, where the Parliament intended to pluralise in the Citizenship Act (or in Division 3 of Part 2 of the Citizenship Act), it did so expressly, rather than relying upon the rule as to number in the Interpretation Act.

56    This argument requires that the Court reason that the use of plurals in s 35A (introduced into the Citizenship Act in 2015 and repealed in 2020) informs the construction of a provision that was adopted in 2007, at the time that the Citizenship Act was passed (including s 34 relevantly and substantively in its current form). While the Citizenship Act must be construed as a whole, the use of subsequent amendments in construing legislation is rare (see for example Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 at 86) and arises only following careful consideration as to the inference properly drawn from the subsequent amendment (AQO v Minister for Finance and Services [2016] NSWCA 248; 93 NSWLR 46 at [143] (Basten JA, with whom Ward JA agreed)).

57    While we accept that the Citizenship Act is to be construed as a whole, as it stood between 2015 and 2020 (being the period when it included s 35A) (Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 479 (McHugh and Gummow JJ)), in this instance, the amendments to the Citizenship Act which inserted s 35A did not act upon or affect s 34. There is nothing in the text, context or purpose of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth), which inserted s 35A, to suggest that it was intended to narrow or alter the scheme of surrounding provisions. The mere fact that a distinct provision, separately enacted, and concerned with a different revocation power, used both the plural and singular rather than relying on the rule as to number is insufficient to evince an intention that the rule be excluded in connection with the construction of s 34.

58    We agree with the primary judge that, in circumstances where the expression of s 34 remained static in the face of the introduction of s 35A some years later, those amendments do not support the exclusion of the rule as to number in s 34.

Conclusion

59    The only issue in this appeal concerned the construction of s 34(5) of the Citizenship Act. For the reasons set out above, we consider that there is no legislative intention to exclude the rule as to number from the operation of the provision. Moreover, we consider that the better construction of s 34(2)(b)(ii), when read with the definitions in ss 3 and 34(5), is that it is triggered where a person is convicted of an offence or offences which result in a total effective sentence of imprisonment for a period of at least 12 months.

60    It follows that there was no error in the decision of the primary judge. The appeal must be dismissed, with costs.

Associate:

Dated: 11 June 2025