Federal Court of Australia

Spall v Minister for Home Affairs [2024] FCA 849

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be changed from the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” to the “Minister for Home Affairs”.

2.    The Administrative Appeals Tribunal be removed as a party.

3.    The Amended Notice of Appeal marked draft stand as the Amended Notice of Appeal on the Court file.

4.    The Amended Notice of Appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    The Appellant, Mr Stephen Spall, appeals from a decision of the Administrative Appeals Tribunal to affirm the decision of the Minister for Home Affairs to revoke his Australian citizenship pursuant to s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth). The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and is premised on grounds in which the Appellant contends that the Tribunal made two errors of law.

2    The Appellant is a citizen of the United Kingdom of Great Britain and Northern Ireland. He was born in England in 1966. He arrived in Australia on 22 November 1978 and has resided for the most part in Australia for over 40 years. He has established a life for himself in Australia and has ties with the wider Australian community. On 4 March 1997, he obtained Australian citizenship by conferral under the now repealed Australian Citizenship Act 1948 (Cth) (the 1948 Act). Thereafter, he held dual citizenship of the United Kingdom and Australia, until the Minister revoked his Australian citizenship on 7 May 2020 pursuant to s 34(2)(b)(ii) of the Citizenship Act.

3    Prior to obtaining Australian citizenship, the Appellant committed two offences of committing an indecent act with a child under 16 years of age. The offences were committed in Victoria in about 1995 and involved acts perpetrated against two complainants on separate occasions. The Appellant was not charged until some years later. The Appellant pleaded guilty to both counts.

4    On 21 March 2018, the Appellant was convicted on each charge. He was sentenced to nine months on each charge. The sentencing judge ordered that three months of one count be served cumulatively upon the sentence imposed on the other count, making a total effective sentence of 12 months’ imprisonment. The sentencing judge sentenced on the basis of partial cumulation in recognition of the discrete nature and occurrence of the two offences. The sentencing judge applied s 6AAA of the Sentencing Act 1991 (Vic) in recognition of the Appellant’s guilty plea, indicating that the sentence imposed would otherwise have been 18 months.

5    On 7 May 2020, the Minister revoked the Appellant’s Australian citizenship pursuant to s 34(2)(b)(ii) of the Citizenship Act. On 18 November 2021, the Tribunal affirmed the Minister’s decision. The effect of the revocation of the Appellant’s Australian citizenship is that he is entitled to an ex-citizen visa, which enables him to remain in Australia until his next departure.

GROUNDS OF APPEAL

6    This appeal has had a long history. The proceedings were held in abeyance during a period when a constitutional question which the Appellant sought to pursue was being considered in another proceeding pending before the High Court. The resolution of that constitutional issue resulted in the Appellant not pressing any constitutional point in this proceeding. There have been in effect, if not formally, three iterations of the grounds of appeal. For present purposes, it is not necessary to track the evolution of the Notice of Appeal.

7    By the Amended Notice of Appeal filed on 19 February 2024, the Appellant raises two questions of law:

(1)     Whether the construction of the expression “contrary to the public interest” in s 34(2)(c) of the Citizenship Act is synonymous with something not being “in the public interest”, or whether the former expression connotes a more onerous standard than the latter?

(2)    Whether the expression “the person has been convicted of an offence against 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 Citizenship Act allows for more than one “offence” to be brought to account in relation to the determination of the “serious prison sentence”?

8    The statutory definitions which are relevant to the second question of law are the definition of “convicted of a serious offence” in s 34(5) and the definition of “serious prison sentence” which is defined in s 3 as meaning “a sentence of imprisonment for a period of at least 12 months”.

9    The Appellant raises two grounds of appeal, numbered respectively Ground 1 and Ground 1A.

10    By Ground 1, the Appellant contends that the Tribunal erred in law in construing the expression “contrary to the public interest” in s 34(2)(c) of the Citizenship Act as synonymous with something not being “in the public interest”, whereas in the Appellant’s submission the former expression connotes a more onerous standard than the latter. The Appellant maintains that there is a “(substantial) zone in between the two notions in many areas of human endeavour”.

11    Notwithstanding the brevity with which Ground 1 is framed, the gravamen of Ground 1 is a complaint about treating the expressions “contrary to the public interest that the person continue as an Australian citizen” and “in the public interest that the Appellant not continue to be an Australian citizen” as synonymous. Both expressions are drawn from an earlier decision of this Court in which these expressions were held to be synonymous: TRHL v Minister for Immigration [2016] FCA 376; 152 ALD 488 (Gilmour J), [27], [41].

12    In the Appellant’s submission, the decision in TRHL, and a subsequent decision in which TRHL was cited with approval (Minister for Home Affairs v Waraich [2020] FCA 1513 (Anastassiou J)) are plainly wrong. At the outset of the Appellant’s oral submissions, the Appellant accepted, as the Respondent had submitted in writing, that sitting as a single judge, I am bound to reject Ground 1 as contrary to the reasoning of the Full Court in Waraich v Minister for Home Affairs [2021] FCAFC 155; 286 FCR 45 (Waraich FCFCA). The parties correctly acknowledge that this is so even though the reasoning of the Full Court may not be strictly binding in the present context. The Respondent recognises that the issue was conceded in Waraich FCFCA before the Full Court (as it had been before the primary judge) and therefore was not the subject of argument and so may not strictly be binding: see, eg, CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 at [13]. By contrast, in TRHL the issue was contested and forms part of the ratio. The Respondent submitted nevertheless that the reasoning of the Full Court was clearly correct and should be followed. The Appellant did not make oral submissions in relation to Ground 1 but maintained the ground in the formal sense relying on his written submissions. Accordingly, I will strive to be economical in my consideration of Ground 1.

13    The second ground, which is numbered as Ground 1A, is a new ground – it was not argued, and was in fact conceded, before the Tribunal. It is confined to a question of law as to whether the threshold required to give rise to the power to revoke the Appellant’s citizenship was satisfied. The Respondent does not take issue with this question of law being raised as a new ground at this stage. The Appellant contends that the decision of the Tribunal was invalid because he had not committed “an offence” for which he received a serious prison sentence, being “a sentence of imprisonment for a period of at least 12 months”. The Appellant points to the fact that his sentence of 12 months’ imprisonment was not in respect of “an offence” but was comprised of two sentences in respect of two offences, each for nine months which after allowing for cumulative service in part, resulted in a total period to be served of 12 months’ imprisonment.

14    The Respondent submits that the noun “offence” is to be read as including “offences” pursuant to s 23(b) of the Acts Interpretation Act 1901 (Cth) in circumstances where no contrary intention is manifested and other relevant interpretative considerations tend to confirm the inclusion of the plural.

LEGISLATIVE FRAMEWORK

15    This appeal concerns the revocation of the Appellant’s Australian citizenship pursuant to s 34(2) of the Citizenship Act, which he obtained by conferral under the 1948 Act. The relevant provisions have been amended several times. For present purposes, the relevant iteration of the Citizenship Act is that which was in force as at 7 May 2020, which has since been amended in some respects.

16    In addressing the legislative framework, I will first address the process by which a person could become an Australian citizen by conferral under the 1948 Act and also under the Citizenship Act. I will then address the transitional provisions which modify the relevant operation of the present Act in its application to citizens who obtained their citizenship by conferral under the 1948 Act focussing on the provision for revocation of citizenship by conferral. I will then address those aspects of the legislative framework which have been amended after May 2020, to the extent that the Appellant submits that they are relevant to the interpretation of the provisions in force as at 7 May 2020.

Citizenship by conferral

The 1948 Act

17    As mentioned, the Appellant obtained citizenship by conferral on 4 March 1997. As at that date, the relevant provisions for a person to obtain citizenship by conferral were contained in Division 2 of Part III of the 1948 Act.

18    Section 13 provided for the Minister’s discretion to grant a certificate of Australian citizenship. Section 13(1) required the Minister to be satisfied that the person met certain criteria, including, amongst other things, that “the person is of good character": s 13(1)(f). The term “good character” was not defined in the 1948 Act. Section 13(13) provided that particular provisions, namely s 13(4)(a) and s 13(11) did not limit the generality of the “good character” eligibility criteria in subparagraph 13(1)(f).

19    The meaning of “good character” under s 13(1) of the 1948 Act was considered recently by the High Court in Jones v Commonwealth [2023] HCA 34; 97 ALJR 936 in the context of a constitutional challenge to s 34(2)(b)(ii) of the Citizenship Act. The plurality (Kiefel CJ, Gageler, Gleeson and Jagot JJ) observed (at [13], footnotes omitted):

The precondition to the grant of a certificate of Australian citizenship under s 13(1) of the 1948 Act that the Minister be satisfied that the person was of “good character” required the Minister to be satisfied of the person’s “enduring moral qualities”, being their “disposition rather than general reputation”. Past conviction of a serious offence was relevant to the requisite ministerial assessment of character, without necessarily being determinative of that assessment. That was because the conviction amounted to conclusive evidence of the past criminal conduct to which it related.

20    The concept of “enduring moral qualities” derives from the Full Court in Irving v Minister for Immigration [1996)] FCA 663; 68 FCR 422 at 431, endorsed by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at 529-530 at [65], in the context of the Migration Act 1958 (Cth). As Bromwich J observed in Balladraf v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 698 at [10]-[11], the approach adopted for the assessment of good character for the purposes of the Migration Act is “equally apposite” for the purposes of the Citizenship Act, given the absence of any statutory definition or other legislative guidance.

21    Section 15(1) provided that a person to whom a certificate of Australian citizenship was granted under Division 2 who made a pledge of commitment, in the manner provided by s 15(2) and in accordance with the appropriate form set out in Sch 2, became an Australian citizen.

The Citizenship Act

22    The 1948 Act was repealed upon the commencement of the Citizenship Act: ss 2, 3 and item 42 of Sch 1, Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (the Consequential Provisions Act). Any person who was an Australian citizen under Division 2 of Part III of the 1948 Act and who had not ceased to be an Australian citizen under the Citizenship Act was taken from the commencement of the Citizenship Act to be an Australian citizen under Subdivision B of Division 2 of Part 2 of the Citizenship Act: s 4(1)(b). The Appellant was within that category.

23    Subdivision B of Division 2 of Part 2 of the Citizenship Act deals with citizenship by conferral which broadly corresponds with Division 2 of Part III of the 1948 Act. The Citizenship Act provides for an application to be made to the Minister for a person to be approved to become an Australian citizen subject to satisfying statutory requirements as to eligibility. For a person to become an Australian citizen, the Minister must decide to approve the person becoming an Australian citizen (s 24(1)) and may require the person to make a pledge of commitment (ss 20, 26 and 27).

24    Subsections 21(2)-(8) set out the criteria for when a person is eligible to become an Australian citizen (the eligibility criteria). Subsection 21(2) contains cumulative criteria as to “general eligibility” (the general eligibility criteria). Relevantly, the general eligibility criteria includes a requirement that the Minister must be satisfied that the applicant is of good character at the time of the Minister’s decision on the application (the good character criterion): s 21(2)(h). The good character criterion does not apply to all applications. There are two circumstances under s 21 where the good character criterion does not apply. First, where a person is under the age of 18 (s 21(5)). Secondly, where a person was born in Australia, is not and has never been a citizen or national of any country and is not entitled to acquire the citizenship or nationality of a foreign country (s 21(8)).

25    Section 24 is addressed to the Minister’s function in approving or refusing applications for Australian citizenship by conferral pursuant to s 21. If a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen: s 24(1). The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8): s 24(1A). However, the Minister may refuse to approve the applicant becoming an Australian citizen even if the applicant is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7): s 24(2).

26    The Minister may be required to refuse an application in certain circumstances. Relevantly, under s 24(6) the Minister must not approve the person becoming an Australian citizen at certain defined times:

Offences

(6) The Minister must not approve the person becoming an Australian citizen at a time:

(a)     when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or

(b)     when the person is confined to a prison in Australia; or

(c)     during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence; or

(d)     if the person is a serious repeat offender in relation to a serious prison sentence—during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or

(e)     if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence—during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or

(f)     if the person:

(i)     has been released by a court from serving the whole or a part of a sentence of imprisonment; and

(ii)     has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

(g)     if, in respect of proceedings for an offence against an Australian law in relation to the person:

(i)     a court does not impose a sentence of imprisonment on the person; and

(ii)     the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

(h)     during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

27    Section 3 defines a person as a “serious repeat offender” in relation to a serious prison sentence “if the sentence was imposed on the person for an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of another serious prison sentence”.

Revocation of citizenship by conferral

28    Section 34 of the Citizenship Act is addressed to revocation of Australian citizenship by the Minister in specified circumstances. Subsection (1) is directed to the revocation by the Minister of citizenship by descent or by adoption. Relevantly, subsection (2) is directed to revocation by the Minister of citizenship obtained by conferral following application under s 21 and approval by the Minister under s 24.

29    Under s 34(2) of the Citizenship Act, an Australian citizen who obtained citizenship by conferral under Subdivision B of Part 2 (s 34(2)(a)) is liable to have their citizenship revoked if:

(1)    they meet one or more conditions set out in s 34(2)(b) (including by reason of being convicted of a serious offence within the meaning of s 32(5) as incorporated into s 34(2)(b)(ii)); and

(2)    the Minister is satisfied that it would be contrary to the public interest for the person to remain a citizen (s 34(2)(c)).

The Minister’s power to revoke the citizenship of an Australian citizen who has obtained citizenship by conferral is enlivened if these two criteria are met. The Minister thereafter has a residual discretion as to whether to revoke the person’s citizenship, subject to the constraint in s 34(3) which applies where a person would be rendered stateless by the revocation. The Full Court in Waraich FCFCA observed that the residual discretion conferred by s 34(2) cannot lawfully be exercised separately to the formation of the requisite state of mind about the public interest in s 34(2)(c). The Minister’s satisfaction as to the considerations in s 34(2)(a) to (c) forms the starting point for the consideration of the discretion. See, eg, Jones, [67]-[68] (Gordon J, in dissent but not relevantly on this point); Waraich FCFCA, [52] and [57]-[58].

30    Section 34 was included in the Citizenship Act from inception in 2007. A progenitor of s 34, although differently worded, was included in the 1948 Act — section 21(1)(a)(i) and (ii) of the 1948 Act may be seen as the progenitors of s 34(2)(b)(i) and (ii) of the present Act.

31    The constitutional challenge to s 34(2)(b)(ii) in Jones was rejected by the High Court (Kiefel CJ, Gageler, Gleeson and Jagot JJ; Edelman J agreeing; Steward J agreeing; Gordon J dissenting). The legislative history and legislative purpose of the relevant provisions relating to the revocation or loss of Australian citizenship obtained by conferral were addressed by the High Court in Jones at [11] to [35] (Kiefel CJ, Gageler, Gleeson and Jagot JJ) (see also [174]-[177] (Edelman J), [198]-[201] (Steward J) and [65]-[73] (Gordon J)).

32    On and from its commencement, the Citizenship Act included as an Australian citizen a person who was an Australian citizen under the 1948 Act immediately before that commencement and who had not ceased to be an Australian citizen under the Citizenship Act. Like Mr Jones, the Appellant falls in this category.

33    Section 34(2) of the Citizenship Act, relevantly provides, and did so at the time the Appellant’s citizenship was revoked:

Citizenship by conferral

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

(a)     the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and

(b)     any of the following apply:

(i)     the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;

(ii)     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);

(iii)     the person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);

(iv)     the person obtained the Minister’s approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and

(c)     the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

34    The condition in s 34(2)(b)(ii) focusses on the fact of a person’s conviction, relevantly of a serious offence, which may occur at any time after the person made the application to become an Australian citizen. The phrase “convicted of a serious offence” used in s 34(2) is defined in s 34(5) and not in the general dictionary incorporated in s 3 of the Citizenship Act:

Serious offence

(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.

35    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 to apply for the purpose of s 34. As mentioned above, “serious prison sentence” is defined in s 3 as meaning “a sentence of imprisonment for a period of at least 12 months”. The offending conduct which informs the conviction must have occurred before the person became an Australian citizen: s 34(5)(b).

36    As seen above, the term “serious prison sentence” is used in other parts of the Citizenship Act, for example, in subsections 24(6)(c) and (d), by which the Minister is prohibited from approving an application for citizenship by conferral during the period when an applicant is confined to prison and during defined periods after serving a serious prison sentence — two years in the ordinary course but 10 years where the serious prison sentence is served by a serious repeat offender (as defined in s 3).

37    The modified operation of the Citizenship Act in its application to persons who obtained Australian citizenship under the 1948 Act was addressed by the plurality in Jones (commencing at [23] and culminating as follows at [33] to [35]):

[33]     Thus, in their modified application to a person in the position of Mr Jones, s 34(2)(a), (b)(ii) and (c) of the Citizenship Act replicate the power which the Minister administering the 1948 Act had under s 21(1)(a)(ii) and (b) of that Act at the time Mr Jones was granted his certificate of Australian citizenship under s 13(1) of that Act enabling him to become an Australian citizen by operation of s 15(1) of that Act. The power which the Minister administering the 1948 Act then had, and which the Minister administering the Citizenship Act has retained, was and has at all times remained a power administratively to revoke the Australian citizenship administratively granted to the person. The power was and has remained exercisable if: (1) at any time after the person applied for their certificate of Australian citizenship, the person was convicted of and sentenced to imprisonment for a period of at least 12 months for an offence committed before the person became an Australian citizen; and (2) the Minister was satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

[34]     Plainly enough, the purpose of s 34(2)(a), (b)(ii) and (c) of the Citizenship Act in that modified application remains the purpose of s 21(1)(a)(ii) and (b) of the 1948 Act at the time Mr Jones was granted his certificate of Australian citizenship. The purpose of s 34(2)(a), (b)(ii) and (c) in that modified application is to continue to protect the integrity of the administrative process by which that and other grants were made under s 13(1) of the 1948 Act.

[35]     The consequence of that legislative continuity has been that, at the time he became an Australian citizen in 1988 by force of s 15(1) of the 1948 Act and at all times thereafter, Mr Jones was and remained at risk of revocation of his Australian citizenship by a responsible Minister if Mr Jones was convicted of and sentenced to imprisonment for a period of at least 12 months for an offence committed before he became an Australian citizen and the Minister was satisfied that it would be contrary to the public interest for Mr Jones to remain an Australian citizen. It was Mr Jones' conviction and sentence in 2003 for offences committed between 1980 and 1988 which led to that risk materialising in 2018.

See also [112] (Edelman J) and [198] (Steward J).

38    At the time when the Appellant’s citizenship was revoked, the Citizenship Act included s 35A, which was subsequently repealed on 18 September 2020 by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth), and replaced by s 36D, which was found to be invalid in Benbrika v Minister for Home Affairs [2023] HCA 33. The Appellant relies on s 35A as relevant context for the interpretation of s 34(2). Section 35A was introduced into the Citizenship Act on 12 December 2015 by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) whereas s 34, as mentioned, was included in the Citizenship Act when it was passed in 2007.

39    As at May 2020, s 35A provided that the Minister may determine that a person ceases to be an Australian citizen if certain conditions are satisfied. Those conditions include that the person has been convicted of prescribed offences which include offences that broadly answer the description of offences of non-allegiance — for example, terrorism, treason, sabotage, espionage, foreign interference and the like. Relevantly for the purpose of the Appellant’s submissions, the list of qualifying offences is introduced in the chapeau by the phrase “convicted of an offence against, or offences against, one or more of the following”: (see s 35A(1)(a)) and both the singular and plural form of the words “conviction” and “period of imprisonment” are used in the formulation of s 35A(1)(b) to account for both multiple offences and multiple sentences, provided the relevant imprisonment totals to at least six years’ imprisonment.

40    In addition to the condition specifying that the conviction trigger must be in connection with particular offences, the Minister’s discretion under s 35A is also conditioned on the following: the sentence imposed of must be of at least six years imprisonment (s 35A(1)(b)); the person must be a dual citizen (s 35A(1)(c)); the Minister must be satisfied that the relevant conduct demonstrates that the person has repudiated their allegiance to Australia (s 35A(1)(d)); and the Minister must be satisfied that it is not in the public interest for the person to remain an Australian citizen, having regard to the factors listed at s 35A(1)(e)(i) to (vii). The Minister’s power under s 35A(1)(a) is not limited to citizenship derived from conferral nor is it limited to conduct occurring at a particular time: s 35A(3).

Subsequent amendment of the Citizenship Act

41    The Citizenship Act was amended in 2023 to provide for a court to make a citizenship cessation order: Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (Cth). The amendments were made following the decisions of the High Court in Alexander v Minister for Home Affairs [2022] HCA 19 and Benbrika in which ss 36B and 36D were held to be invalid as infringing Chapter III of the Constitution. The 2023 amendments repealed the invalid provisions and established a revised citizenship cessation regime by which the Minister could make an application to request a court to make an order to cease a dual citizen’s Australian citizenship where the person had been convicted of a serious offence or offences. Under the amendments, the power to make a citizenship cessation order was vested in, and reserved to, the court’s discretion.

42    In the context of the new provisions conferring on the court the power to make citizenship cessation orders, s 36C specifically provided for the way in which sentences, which a court orders be served concurrently, (whether in whole or in part), were to be treated for the purpose of enlivening the court’s power to make a citizenship cessation order and also introduced a definition of “serious offence” within the new provision, which is cross-referenced in s 3 of the Citizenship Act.

43    Although it is lengthy, it is convenient to extract s 36C in full:

(1)     If:

(a)     a person is convicted of one or more serious offences; and

(b)     the court has decided to impose on the person, in respect of the conviction or convictions, a period of imprisonment that is at least 3 years or periods of imprisonment that total at least 3 years; and

(c)     before the court imposes the sentence or sentences on the person in respect of the conviction or convictions, the Minister makes an application under subsection 36D(1) for an order to be made under this subsection in relation to the person; and

(d)     the court is satisfied of the matters specified in subsection (4) of this section;

the court may, when imposing such a period or periods of imprisonment on the person in respect of the conviction or convictions, also order at that time as part of the sentence or sentences that the person ceases to be an Australian citizen.

Note: Subsections (5) and (6) set out, without limitation, matters the court must have regard to in deciding whether to make an order under this subsection.

(2)     However, the court must not make an order under subsection (1) in relation to the person if the court is satisfied that the person would, if the court were to make the order, become a person who is not a national or citizen of any country.

Serious offence

(3)     A serious offence is an offence against any of the following provisions:

(a)     a provision of Subdivision A of Division 72 of the Criminal Code (explosives and lethal devices);

(b)     a provision of Subdivision B of Division 80 of the Criminal Code (treason);

(c)     section 83.1 of the Criminal Code (advocating mutiny);

(d)     a provision of Division 91 of the Criminal Code (espionage);

(e)     a provision of Division 92 of the Criminal Code (foreign interference);

(f)     a provision of Part 5.3 of the Criminal Code (terrorism), other than the following provisions:

(i)     section 102.8;

(ii)     Division 104;

(iii)    Division 105;

(iv)     section 105A.7D;

(v)     section 105A.18B;

(g)     a provision of Part 5.5 of the Criminal Code (foreign incursions and recruitment).

Court to be satisfied of certain matters etc.

(4)     For the purposes of paragraph (1)(d), the matters are the following:

(a)     the person is aged 14 or over;

(b)     the person is an Australian citizen;

(c)     the person’s conduct to which the conviction or convictions relate is so serious and significant that it demonstrates that the person has repudiated their allegiance to Australia.

(5)     In deciding whether the court is satisfied of the matter referred to in paragraph (4)(c) in relation to the person’s conduct, the court must have regard to the following matters:

(a)     whether the conduct to which the conviction or convictions relate demonstrates a repudiation of the values, democratic beliefs, rights and liberties that underpin Australian society;

(b)     the degree, duration or scale of the person’s commitment to, or involvement in, the conduct to which the conviction or convictions relate;

(c)     the intended scale of the conduct to which the conviction or convictions relate;

(d)     the actual impact of the conduct to which the conviction or convictions relate;

(e)     whether the conduct to which the conviction or convictions relate caused, or was intended to cause, harm to human life or a loss of human life.

(6)     In deciding whether to make an order under subsection (1) in relation to the person, the court must have regard to the following matters:

(a)     if the person is a child aged under 18—the best interests of the child;

(b)     if the person has any dependent children in Australia—the best interests of those children;

(c)     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.

(7)     Subsection (6) does not limit the matters to which the court may have regard in deciding whether to make an order under subsection (1) in relation to the person.

Concurrent sentences

(8)     If:

(a)     a person has been convicted of 2 or more serious offences; and

(b)     a court has decided to impose on the person, in respect of the conviction or convictions, 2 or more periods of imprisonment to be served concurrently (whether in whole or in part);

then, for the purposes of subsection (1), the whole of each period is to be counted in working out the total of those periods.

Example: A person is convicted of 2 serious offences and a court has decided to impose on the person in respect of the convictions 2 periods of 2 years imprisonment to be served concurrently. For the purposes of subsection (1), the total period of imprisonment is 4 years.

References to period of imprisonment 

(9) For the purposes of subsection (1):

(a)     a reference to a period of imprisonment in that subsection does not include a period of imprisonment that is suspended; and

(b)     a reference to a period of imprisonment in that subsection includes a reference to a single sentence of imprisonment that a court has decided to impose in respect of both one or more serious offences and one or more other offences.

Other matters

(10)     This section applies in relation to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person’s birth).

 (11)     Part IB of the Crimes Act 1914 (which deals with sentencing, imprisonment and release of federal offenders) does not apply in relation to an order under this section.

44    The relevant provision in s 34 and the associated definitions of “conviction of a serious offence” in s 34(5) and “serious prison sentence” in s 3 were not amended as part of the 2023 amendments.

BACKGROUND

45    Given the scope of this appeal, as it has evolved, both the Minister’s and the Tribunal’s reasons may relevantly be summarised in short form.

The Minister’s decision

46    On 7 May 2020, the Minister exercised the discretion under s 34(2) of the Citizenship Act to revoke the Appellant’s Australian citizenship upon having determined that s 34(2)(a) and 34(2)(b)(ii) applied and that it would be contrary to the public interest for the purposes of s 34(2)(c) for the Appellant to remain an Australian citizen.

47    The Minister was satisfied the Appellant came within the scope of s 34(2)(a) as a result of a successful application for Australian citizenship by conferral and within the scope of s 34(2)(b)(ii) as a result of the Appellant’s sentence by the County Court of Victoria to a term of imprisonment of 12 months. As noted above, this issue was conceded by the Appellant in the Tribunal. Given that the Appellant maintains Ground 1 on a formal level only and accepts that I am bound to dismiss the ground, I will not further summarise the Minister’s decision in relation to the public interest consideration.

48    The Minister was satisfied that s 34(3) did not apply because revoking the Appellant’s citizenship would not render him stateless as he would remain a national of the United Kingdom.

49    The Minister concluded that it would be contrary to the public interest for the Appellant to remain an Australian citizen and it was appropriate to exercise the discretion to revoke the Appellant’s Australian citizenship under s 34(2) of the Citizenship Act.

The Tribunal’s decision

50    On 26 May 2020, the Appellant applied to the Tribunal for review of the Minister’s decision. The review was heard before the Tribunal on 6 and 7 July 2021. The Appellant was legally represented and gave evidence. The Tribunal’s decision was delivered before judgment was given in Waraich FCFCA.

51    The Appellant submitted that he did not qualify to have his citizenship revoked because the power to revoke his citizenship did not arise as the requirement in s 34(2)(c) was not met. As mentioned, the Appellant conceded before the Tribunal that the threshold requirement of “12 months’ imprisonment” was satisfied.

52    The Tribunal considered that the test for whether it is “contrary to the public interest” for a person to continue as an Australian citizen is “in terms, a quite different enquiry” to whether it is “in the public interest” for the person “to continue as an Australian a citizen”: T[78]-[79]. I pause to note that at this point in its reasons the Tribunal stated the “in the public interest” comparator without including the negative qualification in that comparator that was considered in TRHL. In TRHL, the “in the public interest” formulation of the phrase held to be synonymous with the formulation in s 34(2)(c) in the relevant statutory context was expressed to include a negative qualification (emphasis added):

[41]    In any event, in my opinion, in this statutory context, the expression of the public interest requirement under s 34(2)(c) as ultimately put on behalf of the Minister before the Tribunal as being "in the public interest that the appellant not continue to be an Australian citizen" is synonymous with the statutory language that "it would be contrary to the public interest for the appellant to remain an Australian citizen."

53    In any event, the Tribunal considered itself bound by the decisions in Waraich at [43] and TRHL at [41]: T[80]. The Tribunal identified the question to be answered in relation to s 34(2)(c) as “whether it is not in the public interest that he should continue as an Australian citizen” (emphasis in original): T[81]. The Tribunal answered that question at T[97] by reaching a conclusion in accordance with the formulation in s 34(2)(c):

I regard it as being contrary to the public interest therefore under s 34(2)(c) of the Act for the Applicant to remain an Australian citizen…

54    After considering factors relevant to the residual discretion, such as hardship, anxiety, and distress, the Tribunal decided to affirm the decision under review.

CONSIDERATION

55    Ground 1A naturally falls for consideration before Ground 1. In the legislative scheme, s 34(2)(b)(iii) operates as a prerequisite of which the decision-maker must be satisfied before turning to the public interest criterion in s 34(2)(c), which is the subject of Ground 1.

Ground 1A: interpretation of “an offence”

56    The Appellant submits that the critical question on this ground is whether he committed a “serious offence” as defined in s 34(5) of the Citizenship Act. He submits that the “trigger” for revocation in s 34(5)(a) is satisfied only where the citizen has been convicted of an offence for which the citizen has been sentenced to imprisonment for a period of at least 12 months for that offence. The Appellant contends that his conviction does not satisfy the “trigger” for revocation in s 34(5)(a). There is no dispute about the application of s 34(5)(b), the Appellant having committed the relevant two offences before he became an Australian citizen.

57    The Appellant submits that because he was convicted of two charges and sentenced to nine months’ imprisonment on each charge, with a cumulation order being made which resulted in a total effective sentence of 12 months’ imprisonment, that he has not been convicted of an offence and sentenced to a serious prison sentence of at least 12 months within the meaning of s 34(2)(b)(ii) incorporating the definition in s 34(5), which in turn draws on the definition of “serious prison sentence” in s 3 of the Citizenship Act. In these circumstances, the Appellant contends that the decision to revoke his citizenship is invalid because the criteria in s 34(2)(b)(ii) was not satisfied.

58    The Respondent relies on the rule of interpretation that words in the singular include the plural and words in the plural include the singular (the rule as to number): s 23(b), Interpretation Act. The Interpretation Act applies to all legislative instruments subject to the manifestation of a contrary legislative intention: s 2(2), Interpretation Act.

59    The Respondent contends that absent a contrary intention, the noun “offence” is to be read as also including offences in accordance with the rule as to number. Accordingly, by application of the rule as to number, s 34(2)(b)(ii) of the Citizenship Act extends to cover the Appellant’s circumstances notwithstanding that he was convicted of two counts of the relevant offence and for this was sentenced to a cumulative term of imprisonment of at least 12 months. The Respondent submits that on the proper construction of the legislative scheme, no contrary intention is manifest that would preclude the application of the rule as to number to s 34(2)(b)(ii) of the Citizenship Act.

60    For the reasons which follow, I am not persuaded that at the relevant time, on the proper construction, the provisions in issue were subject to a contrary intention such that the rule as to number does not apply.

61    The question as to the meaning of a statutory provision must be answered in the usual way having regard to the text, context, and purpose and consequence. Context should be considered at the first stage and in its widest sense: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).

62    The Interpretation Act and more specifically, the rule as to number, applies subject to a “contrary intention”: s 2(2). The effect of s 23(b) of the Interpretation Act is that “offence” in s 34(5)(a) will be construed as referring to “offences” unless a contrary intention is manifested. Thus, the issue which arises on Ground 1A is whether there is a sufficient indication of a legislative intention that s 35(5)(a) should not be construed in accordance with the rule as to number.

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 in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.

64    The Interpretation Act authorises “a process of selective pluralising”: No 20 Cannon St Ltd v Singer & Friedlander Ltd [1974] Ch 229, 242 (Megarry J), quoted in Jones v Scully [2001] FCA 879; 113 FCR 343, [14] (Hely J).

65    In the context of singular words and plurals, a contrary intention may be identified if the relevant statute otherwise expressly and carefully chooses between using the plural or the singular when required: Commissioner of State Revenue (Vic) v The Muir Electrical Co Pty Ltd [2003] VSCA 112; 8 VR 200, [14] (Callaway JA; Ormiston and Eames JJA agreeing)) or if pluralising or singularising radically alters the character of the provision: Blue Metal Industries, 658 (Lord Morris).

66    The Interpretation Act also provides that in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation: s 15AA. In the present context, a contrary intention would not readily be inferred where excluding the application of the rule as to number risks defeating or undermining the purpose of the provision being construed.

67    Commencing with the text of s 34, the Appellant submits that his preferred construction is made most clearly by reference to s 34(5)(a) itself, wherein the language used for the “trigger” for citizenship revocation is “the person has been convicted of an offence”, which is then relevantly followed by the words “for which the person has been sentenced to”, and then, “a serious prison sentence”. The Appellant submits that the grammatical structure is most naturally read as referring to a single offence of sufficient gravity to attract the very serious consequence of revocation of citizenship. The Appellant also draws attention to the language of the definition of “serious prison sentence” which is also in the singular. However, that the provision and the definition both use singular language does not give rise to an inference of contra-intention. The pluralising of singular language (and vice versa) is the point of the rule as to number. The exclusive use of singular language and a form that is grammatically appropriate for singular expression does not of itself suggest a contra-intention. It is equally consistent with the use of the more concise form, favouring singular expression over composite singular and plural expression, with the intention that the rule as to number will apply absent a contrary intention. It may be accepted that deliberately different use of singular and plural language within a provision may manifest a contrary intention, but s 34 uses singular language exclusively. There is nothing in the text of s 34 that demonstrates a deliberate delineation between the use of singular and plural language that would support an inference of a relevant contrary intention.

68    I do not accept the Appellant’s submission that the trigger for citizenship revocation in s 34(2) is naturally read as referring to a single offence of sufficient gravity to attract the serious consequence of revocation of citizenship at a textual level. Section 34(2) only applies to revocation of citizenship by conferral: s 34(2)(a). The trigger for citizenship revocation in s 34(2)(b)(ii) focusses on the composite phrase “convicted of a serious offence within the meaning of subsection (5)”. Relevantly, the conviction condition will be satisfied regardless of the nature of the offence, if after obtaining citizenship by conferral the person is convicted and given a sentence of imprisonment for a period of at least 12 months and the offence was committed prior to the person becoming a citizen. 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. The conviction condition serves as one of several constraints on the revocation discretion arising. Another of the constraints is the public interest consideration in s 34(2)(c). It is only when the cumulative conditions are satisfied that the discretion to revoke citizenship arises. Read according to its text and structure, and having regard to its purpose of citizenship revocation, the more natural reading of s 34(2) is that considerations of the type raised by the Appellant as to the gravity of the offending required being interpreted by reference to the seriousness of the consequence of revoking a person’s Australian citizenship are accommodated within the public interest consideration in s 34(2)(c) and / or the exercise of the overarching discretion once enlivened and do not constrain the interpretation of s 34(2)(b)(ii).

69    Turning to consideration of the context provided by the surrounding provisions, the Appellant first points to s 35A (which is summarised at [39] above). The Appellant relies on s 35A(1)(a) as a contextual indication of a meaningful demarcation between singular and plural usage of the noun “offence” in the legislative scheme from which an inference of contrary intention would be drawn to oust the application of the rule as to number to s 34(2).

70    I am not persuaded that the singular and plural usage of “offence” in s 35A supports an inference that the use of the singular form in s 34(2)(b)(ii) should be construed as reflecting the manifestation of a relevant contrary intention. As mentioned, s 34 was included in the Citizenship Act relevantly and substantively in its present form when it was passed in 2007 whereas s 35A was introduced into the Citizenship Act in 2015 and repealed in 2020. To accede to the Appellant’s submission would be to accept that in circumstances where the text of s 34(2)(b) remained constant, there was a period between 2007 and 2015 when the section had a broader operation which became more confined for the limited period when s 35A was in effect. While in principle that is possible because the Act must be construed as a whole, as it stands from time to time, I regard it as highly unlikely, in circumstances where the expression of s 34 remained constant and the extrinsic materials do not suggest that the retention of the singular language in s 34 was deliberately maintained on the basis that the rule as to number would not apply after the 2015 amendments as a result of a contra-intention being manifested by the context provided by s 35A.

71    In addition, notwithstanding that both ss 34(2) and 35A are concerned with the Minister’s ability to take steps to terminate a person’s Australian citizenship, the circumstances addressed by the two sections are distinctly different. Section 35A provides for removal of citizenship as a consequence of conviction for specified offences that bear a particular character broadly connected with a repudiation of the bond of allegiance between the citizen and the state. The offences covered by s 34(2) are not so limited. Unlike s 34(2), s 35A is not limited in its operation to citizens who obtained their Australian citizenship by conferral. The two provisions are not so closely related that an inference arises that Parliament would have turned attention to s 34(2) at the time s 35A was introduced with the intention that the rule as to number would not apply to s 34(2) after the introduction of s 35A.

72    For these reasons, I do not accept the Appellant’s submission that the use of express language designating that both the singular and the plural forms of offence are covered by s 35A reflects a contra-intention for the purpose of s 2(2) of the Interpretation Act which leads to the conclusion that the use of the singular form is s 34(2)(b) is to be construed without recourse to the rule as to number.

73    The Appellant makes a second submission as to context based on s 35A. The Appellant submits that there is sufficient indication in s 35A that revocation of citizenship is so serious that after acquiring citizenship, citizenship will only be lost as the result of the commission of extremely serious offences. I have touched on this aspect of the Appellant’s submissions above. The Appellant points to the fact that for the purpose of s 35A, imprisonment of at least six years is required before a person is liable to lose their citizenship: s 35A(1)(b). The Appellant submits that s 35A provides relevant context for s 34(2) in that it demonstrates the seriousness of the values at stake and the heaviness of what is being done to a person when citizenship is revoked and has interpretive force in two ways. First, in the usual way where a constructional choice is open. Secondly, the Appellant submitted, but more tentatively, that it has an impact at the contextual level given the nature of the consequence. For these reasons, the Appellant submitted that the constructional choice in construing s 34(2) is weighted in favour of construing s 34(2) as confined to the singular form of the noun offence.

74    I do not accept the Appellant’s further argument based on s 35A. Both provisions are directed to a serious consequence – the removal of Australian citizenship. The issue is how far has Parliament gone in pursuing that object. That the stakes at play are high does not answer the question of whether a contrary intention is manifested which displaces the prima facie application of the rule as to number. For the reasons already given, the text, structure and purpose of s 34(2) supports considerations as to the significance of the consequence of revoking a person’s Australian citizenship being accommodated in other parts of s 34(2) and not in subsection 34(2)(b)(ii).

75    In terms of relevant context, the Appellant next points to s 24(6), and specifically to subsections 24(6)(b), (c), (d) and (h) and the defined terms used therein. Section 24(6) is extracted at [26] above.

76    The Appellant submits that the references in subsections 24(6)(b), (c), (d) and (h) to the concept of “periods of confinement” coupled with the reference to the concept of “serious repeat offender” in s 24(d) suggest attention was given to the concepts of repetition, time served in prison, and related matters, and choices were made to trigger the revocation power not on a period of confinement, but on the seriousness of an offence.

77    The Appellant makes two points based on s 24(6). First, that references to the concept of confinement to a prison in subsections 24(b), (c), (d) and (h) demonstrate that the Citizenship Act is framed with an awareness of sentencing concepts that range from imprisonment to community service and suspended sentences. The Appellant submits that this is significant because it demonstrates that Parliament is well aware of the variety of sentencing options and the ways in which sentences of imprisonment might be imposed and might be worked out in practice. In the Appellant’s submission, that awareness should be taken to include awareness of the concepts of total effective sentences, as well as the principles of totality and cumulation in sentencing. That being the case, the Appellant submits that Parliament should be taken to be aware that a sentence of imprisonment and a term of confinement may be different things. The Appellant submits that a sentence of imprisonment is a legal concept, whereas a term of confinement is a practical concept that varies according to the circumstances. The Appellant submits that the context provided by s 24(6), supports construing s 34(2)(b)(ii) as referring to the legalistic concept of a sentence of imprisonment for an offence and not the practical concept of a period of confinement which may or may not equate to the term for which a person is sentenced to imprisonment in respect of an offence. The Appellant submits that unless s 34(2)(b)(ii) is construed in this way there is a “slight disharmony” between the two provisions.

78    The Appellant submits that whereas s 24(6) recognises practical matters affecting the applicant for citizenship at the point in time at which the Minister comes to consider whether to approve the application for citizenship, s 34(2)(b)(i) does not – it requires a sentence of 12 months or more in respect of a singular offence. The Appellant submits that to construe the legislative scheme in this way is consistent with the approach taken in Pearson v Minister for Home Affairs [2022] FCAFC 203, [40]-[49] to what the Appellant submits are similar provisions of the Migration Act.

79    I do not accept the Appellant’s submissions as to the contextual significance of s 24(6) for the purpose of construing s 34(2)(b)(ii) for the following reasons.

80    Section 24 deals with acquisition of citizenship by conferral and expressly addresses the Minister’s obligation to make a decision, in writing, either to approve or to refuse to approve the person becoming an Australian citizen. In making the decision the Minister must have regard to the general eligibility criteria in s 21(2) which includes the criterion that the applicant must be of good character (s 21(2)(h)).

81    Section 24(6) is headed “Offences”, and it specifies the circumstances in which the Minister is prohibited from approving an applicant under s 24(1) from becoming an Australian citizen. As is made clear in the chapeau to s 24(6), the prohibition on approval is temporal — the Minister must not approve the person becoming an Australian citizen at a time when the circumstances in subsections 24(6)(a) to (h) apply. The offences prohibition in s 24(6) prevents the Minister from approving an application for citizenship by conferral at a time when the issue of the applicant’s good character is subject to doubt because one of the circumstances in s 24(6)(a) to (h) applies — proceedings are pending, the person is currently or recently confined to a prison in Australia, the person’s sentence has ended but the term set by the Parliament has not yet expired being two years, or in the case of a serious repeat offender 10 years, the person is released on parole or a good behaviour bond or the person is confined in a psychiatric institution. Section 24(6) does not speak in terms of being convicted for a serious offence. The offence prohibition is not limited to offences which are serious offences (see s 24(6)(a)). The offence prohibition is directed in s 24(6)(c) and (d) to circumstances involving a serious prison sentence (cf. a serious offence). The offence prohibition is also directed to any period of confinement in prison or potential for such during, for example, an extant bond being in place, regardless of whether the underlying offence answers the description of being a “serious offence”.

82    The Citizenship Act has a number of filters that operate to exclude certain people from obtaining or retaining Australian citizenship including those whose character may be impaired. Section 24(6) is one such filter. Section 34(2) is another. Together the two provisions operate harmoniously. Section 34(2) is directed to the circumstance where a person commits a serious offence before applying for citizenship but is not convicted to a serious prison sentence until after applying and relevantly gives the Minister a discretion to revoke that person’s citizenship. The Minister’s discretion arises only if the conditions in s 34(2) are satisfied. Thus, the process of obtaining citizenship by conferral is subject to these two separate safeguards which reinforce the eligibility criterion directed to the applicant’s good character. Section 24(6) functions at the time the citizenship application falls to be decided. Section 34(2) functions where a matter which could impact the assessment of character existed before the citizenship application was made but did not crystalise in a conviction for a serious offence within the meaning of s 34(5) until after the application was made.

83    The distinction that the Appellant seeks to draw between what he characterises as the practical concept of a period or periods of confinement in s 24(6) and the technical or legal concept of being convicted of a serious offence and sentenced to a serious prison sentence falls away if the rule as to number applies such that offence is pluralised. The focus on periods of confinement in s 24(6)(c) and (d) is neutral as to whether the period of confinement must be for only one offence or as a result of only one sentence. The Respondent submits, and I accept, that the fact that s 24(6) addresses some of the practical features of criminal sentencing does not mean that s 34(2) should be construed in a way that is not practical and which does not advance its purpose.

84    The Appellant submits that to construe the provision as extending to a total effective sentence of 12 months in respect of more than one offences gives rise to a potentially unsatisfactory situation, where the prosecutorial discretion in relation to the timing of charging and prosecuting multiple offences may result in a person receiving a sentence (including a total effective sentence) of 12 months or more, which the person may not have received if each charge had been prosecuted serially and separately proximate to the time the offending.

85    The Respondent counters by submitting that the Appellant’s preferred construction would result in capricious outcomes and should be rejected for that reason. To construe s 34(5) as applying only to a single conviction and term of imprisonment would fail to accommodate standard and longstanding sentencing principles and practice, particularly with respect to discounting, course of conduct and totality.

86    The Respondent submits that the proxy selected by the legislation as a marker of the seriousness of an offence is the length of the prison sentence, rather than the per se character of the offending. However, it would be an error to construe a single sentence of 12 months for multiple offences as reflecting any less serious criminality than a 12 month sentence given for a single offence. The Respondent illustrates this by the following example. Person A commits an offence and is sentenced to nine months’ imprisonment. Person B commits the same offence in the same circumstances and is sentenced to nine months’ imprisonment on that first charge. At the same time, Person B, is sentenced to six months’ imprisonment for another offence. Person B is given a total sentence of over 12 months. The Respondent submits that Person B’s criminality is more serious than the Person A’s but on the Appellant’s construction, the conviction condition in s 34(2)(b)(ii) would not be satisfied for either Person A or Person B with the result that the proxy of serious prison sentence that Parliament has chosen would not serve its function.

87    The Respondent further submits that such an approach would lead to capricious outcomes based on vagaries in the manner in which the prosecutorial discretions as to charging are exercised and the differences in the application of the various state-based sentencing regimes.

88    For example, it may be open to a prosecutor to choose to charge offending conduct which occurs over a period of time as a single offence or as multiple offences over distinct periods of time where the same offence is engaged by all of the impugned conduct. Thus, the prosecutor may choose to charge a person with a single offence, leading to a single conviction and a single sentence of 12 months imprisonment. That person would on the Appellant’s preferred construction satisfy the conviction condition in s 34(2)(b)(ii). Alternatively, the prosecutor may instead charge that same conduct as two separate offences dealing with two distinct periods of time, leading to the imposition of two separate sentences. As a result of the application of sentencing principles, such as, for example, course of conduct and totality, the sentence to be served in respect of the two convictions should be roughly the same as for the single conviction, that is, 12 months. On the Appellant’s construction, two sentences of six months each to be served consecutively amounting to a total period of imprisonment of 12 months would not satisfy the conviction condition in s 34(2)(b)(ii). The Respondent submits that this is another example of the statutory proxy not achieving its purpose of reflecting a broad measure of the underlying criminality but instead being dependent on the vagaries of charging discretion and application of the sentencing discretion.

89    The Respondent illustrates the potential for capricious outcomes on the Appellant’s construction by reference to the state-based sentencing regimes as follows. The effect of aggregate sentencing regimes, which were not in effect at the time of the 1948 Act, is to simplify the task of the sentencing judge when dealing with multiple offences and multiple convictions. There are material differences between the state-based regimes in relation to the obligation for sentencing judges explaining what sentences would have been given on an indicative basis for individual offences when sentencing in a multi-offence setting. The Respondent submits that where the sentencing judge does not record an indicative sentence for each of the offences that result in the imposition of the total sentence, then on the Appellant’s preferred construction, it would appear impossible to discern whether s 34(2)(b)(ii) is enlivened. See, eg, discussion of indicative and aggregate sentences in Pearson at [44]-[45] and the authorities cited therein. On the Appellant’s view, aggregate sentences, no matter how long, would never engage the s 34(2) regime as there has been no sentence for a single offence.

90    I accept the Respondent’s submissions on this point. Having regard to s 15AA of the Interpretation Act, the construction for which the Respondent contends, is clearly the interpretation that would best achieve the relevant purpose or object. Construed in this way, there are two valves through which any over-inclusivity or anomaly resulting from the conviction condition in s 34(2)(b)(ii) may be remedied — the public interest consideration in s 34(2)(c) and the residual discretion if, for example, the Minister thinks, appropriately, that the circumstances do not warrant revocation of citizenship including for example if the offences do not reflect sufficiently serious criminality. Conversely, under-inclusivity occasioned by the Appellant’s construction cannot so readily be remedied. To adopt the Appellant’s construction would result in the utility of s 34(2) in promoting the integrity of citizenship by conferral application process (as identified in Jones) being undermined.

91    There are other points of distinction between ss 24(6) and 34(2) that weigh against the Appellant’s preferred construction of s 34(2) based on disharmony with s 24(6). Unlike s 34(2)(b)(ii), s 24(6) applies more broadly and is not limited in its operation to offences that result in the imposition of a serious prison sentence. The temporal triggers in s 24(6) and s 34(2) are focussed on different periods. Section 24(6) is directed to the period post charge and or conviction and spans from at earliest the time from when proceedings are pending (s 24(6)(a)) and at latest to the period 10 years after the end of any period of confinement as the result of the imposition of a serious prison sentence on a serious repeat offender (s 24(6)(d)). Section 34(2) is temporally tethered to the period before an application for citizenship is made – the relevant offence must have been committed prior to attaining citizenship (s 34(5)(b)) – and also to the period after application for citizenship is made – the relevant conviction must be after the application for citizenship is made (s 34(2)(b)(ii)).

92    The Appellant’s next submission in relation to context is based on the concept of “serious repeat offender”, the definition of which is extracted at [27] above. The Appellant submitted that this definition was relevant in terms of context as supporting the manifestation of an intention that the singular usage in s 34(2) was intended to be singular and only singular. I do not accept that. In addition to the observations I have already made in relation to the different objects served by ss 34(2) and 24(6), I would add that the concept of recidivism that informs the 10-year prohibition in s 24(6)(d) does not cast light on whether the underlying conviction which results in a serious prison sentence is confined to sentencing involving single or multiple offences. The Respondent correctly submits that the same constructional issue as to the correct interpretation of the singular noun “offence” arises in the definition of “serious repeat offender”. The use of the singular form of offence in the definition of serious repeat offender does not evince a contrary intention to preclude the application of the rules as to number to s 34(2)(b)(ii).

93    In oral submissions in reply, in response to a question that I asked in relation to the application of the rule as to number to the definition in s 3 of “serious prison sentence”, the Appellant submitted that if the rule as to number applied to pluralise the word “sentence” in the operative part of this definition, it would result in a complex outcome as to what sentences could be accumulated for the purpose of engaging the conviction condition in s 34(2)(b)(ii). The Appellant contended that this was a further indication of a contrary intention.

94    The Appellant illustrated this submission by the following example. The Appellant posits that a person has finished serving a sentence of less than 12 months and then later commits, and is sentenced for a new offence, again for less than 12 months but with the result that the person has in total been sentenced for the two separate offences to over 12 months in prison in total, although the sentences were not served continuously.

95    The Appellant submits that if offence is relevantly pluralised in the context of s 34(2)(b)(ii) then so too must sentence be pluralised in the operative part of the definition of serious prison sentence. The Appellant submitted that the result would be that the conviction condition would be satisfied for the person in the example given. That conclusion would only follow where both episodes of offending conduct informing both convictions occurred before the person was made an Australian citizen and both convictions, although separated in time by the completion of the first period of imprisonment, were entered after the application for citizenship was made.

96    Although I accept that the hypothetical given is possible, particularly in relation to some categories of offences, including historical sexual offences against minors, I do not find this submission persuasive as a basis for preferring the Appellant’s construction to that which I have arrived at as the proper construction for the following reasons. As noted above, it is recognised that the Interpretation Act authorises “a process of selective pluralising” – that the Citizenship Act should be read to pluralise offence for the purpose of s 34(2)(b)(ii) does not necessarily entail that the noun “sentence” in the operative part of the definition of a serious prison sentence should similarly be pluralised. That is an issue which does not arise presently because this appeal concerns a total effective sentence of imprisonment required to be served continuously for 12 months which was entered on a given date in respect of two offences. As the issue of pluralising the word sentence in the definition of serious prison sentence only arose in response to a question that I had asked, it is an issue which was only addressed fleetingly in the argument. I make no criticism of counsel in that regard.

97    The Appellant submitted that to pluralise sentence in this way would be inconsistent with the concept of “serious repeat offender” which contemplates the notion of a sentence of imprisonment for a period of at least 12 months, and also contemplates continuity in the period of imprisonment. That may be so, but even if so, construing “sentence” in the definition of “serious prison sentence” to be singular does not lead to the conclusion that offence in the phrase “convicted of a serious offence” within the meaning of s 34(5) is also to be construed as exclusively singular. I am not persuaded that the potential for the rule as to number to apply to pluralise the word sentence in the definition of serious prison sentence is sufficient to amount to a manifestation of a contrary intention that the rule as to number should not apply to the construction of s 34(2)(b)(ii). I am fortified in this conclusion by the structural features of s 34(2) to which I have already referred. A case involving multiple sentences passed on separate occasions with an intervening period, or periods, of imprisonment as a result of an earlier conviction, or convictions, if captured by the conviction condition by reason of the word sentence being pluralised is but another example of an anomalous outcome capable of being accommodated as part of the overarching discretion. It may also be a reason to construe the word sentence in the definition of serious prison sentence as necessarily singular having regard to the text, context and purpose of that definition in the legislative scheme. That is not an issue that it is necessary to determine disposing of this appeal.

98    For these reasons, I do not accept that s 24(6), whether taken in isolation, or in conjunction with s 35A, evinces at the contextual level a contra-intention such that the rule as to number does not apply to the proper construction of s 34(2).

99    The next contextual argument made by the Appellant was in relation to s 36C, which was introduced in 2023 well after the decision to revoke the Appellant’s citizenship. The Appellant submits that it is relevant to notice that the Citizenship Act has been amended to now include specific provision for concurrent sentences but correctly recognises that this is of limited relevance.

100    Section 36C was introduced by the Australian Citizenship Amendment (Citizenship Repudiation) Act, without any corresponding amendment to s 34 to include equivalent language of one or more serious offences. The Full Court in Interlego AG v Croner Trading Pty Ltd [1992] FCA 992, 39 FCR 348 (Black CJ, Lockhart, Gummow JJ) at 382 underscored that caution must be exercised in concluding that the construction of an existing section should be altered in light of the insertion of a new corresponding paragraph:

There is a line of authority that an amendment may be taken into account in determining the scope of the prior legislation, at least to avoid a result which would render the amendment unnecessary, or futile or deficient: see especially Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 at 85-86; Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 254-255. But in doing so caution should be exercised: see D C Pearce and R S Geddes, Statutory Interpretation in Australia (3rd ed, 1988), §3.26. It is, after all, a curious way of revealing parliamentary intention at the time of passing the earlier provision. As was observed by Viscount Haldane LC in Re Samuel [1913] AC 514 at 526:

"It is not a conclusive argument as to the construction of an earlier Act to say that unless it be construed in a particular way a later enactment would be surplusage. The later Act may have been designed, ex abundante cautela, to remove possible doubts."

See also Commissioner of Taxation (Cth) v Verzyden (1988) 88 ATC 4,205 at 4,210; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 at 177.

101    The Explanatory Memorandum to the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 sets out the parliamentary intention to introduce new provisions, including s 36C, as a direct response to the High Court’s decisions in Alexander and Benbrika which as mentioned invalidated certain provisions of the Citizenship Act (relevantly, not s 34). The Respondent submits while it is perhaps unsurprising, particularly post-Pearson which was delivered before the amending legislation came into effect, that Parliament did not leave to chance the application of the rule as to number to the new 2023 provisions, that is not a sound basis on which to conclude that the rule as to number does not apply to s 34(2) in the period prior to Pearson and the 2023 amendments. I agree.

102    Although of limited relevance, I note that s 34(2) was not amended by the 2023 amendments which introduced s 36C. Section 34(2), including the conviction trigger in s 34(2)(b)(ii), was not amended to align with the approach taken in respect of citizenship cessation orders in s 36C. Section 36C adopts a much more proscriptive approach to the discretion conferred on a court to make a citizenship cessation order (s 36C(4) and (5)) and is broader in its application. Section 36C applies to all citizens (s 36C(10)) and is directed to the commission of and conviction for particular offences designated to be “serious offences” (s 36C(3)). The definition of serious offence introduced by the 2023 amendments is not engaged for the purpose of applying s 34(2). I do not accept the Appellant’s submission that the context provided by s 36C gives rise to the requisite contra-intention with respect to s 34(2).

103    The parties both made submissions in respect of the persuasive force of the decision of the Full Court in Pearson in which the application of the rule as to number to certain provisions of the Migration Act was considered. The parties do not suggest that I am in any way bound by Pearson which addressed the Migration Act and not the Citizenship Act. However, both rely on Pearson in relation to the critical issue of whether a contra-intention is manifest in the present context.

104    Mr Pearson was sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to an aggregate maximum term of imprisonment of four years and three months in respect of 10 offences (Pearson, [44]). Notwithstanding that in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act, indicative sentences were identified in respect of each of the individual offences and that for one of the offences the indicative sentence was for a term of 18 months, the only operative sentence was the aggregate sentence in respect of the 10 offences. In reaching this conclusion, the Full Court applied established authority of the Court of Criminal Appeal of New South Wales as to the nature of indicative sentences under s 53A(2), in which it is recognised, amongst other things, that indicative sentences are not amenable to appeal, do not have a practical operation at all even though they serve the purposes of discipline and transparency in the sentencing process and allow victims of crime and the public at large to understand the level of seriousness with which the sentencing court regards an individual offence.

105    The relevant ground in Pearson concerned whether Ms Pearson’s aggregate sentence engaged s 501(3A) of the Migration Act by the operation of the character test, relevantly as provided for in s 501(7)(c). The character test definition was in s 501(6), which is reproduced at Pearson, [40]. The debate focussed on s 501(6)(a) as to whether “the person has a substantial criminal record”. That term is relevantly defined in s 501(7)(c) to mean that “the person has been sentenced to a term of imprisonment of 12 months or more”. “Sentence” was defined in s 501(12) to include any form of determination of the punishment for an offence. The Full Court effectively held that on its proper construction, this required a sentence to a term of imprisonment of 12 months or more for a single offence. In doing so, the Full Court held that the relevant provisions evinced the requisite contra-intention to preclude the operation of the rule as to number (Pearson [43]):

The Minister submitted that the definition of “sentence” in s 501(12) being punishment for “an offence” does not assist the construction of s 501(7)(c) because s 23(b) of the Acts Interpretation Act 1901 (Cth) compels the singular to include the plural. The operation of s 23(b) is of course constrained by s 2(2) which makes the application of any provision of the Acts Interpretation Act to an Act or provision of an Act subject to a contrary intention. A close examination of the provisions relating to the character test reveals that Parliament has made a conscious choice about the use of the singular or the plural throughout ss 501(6) and (7) that manifests a contrary intention to that expressed in s 23(b). For example, s 501(6)(aa) speaks in terms of “an offence” committed while in immigration detention, during an escape from immigration detention, and after escape as being sufficient to fail the character test. Where multiple offences are relevant to be considered, Parliament has used the phrase “one or more”; s 501(6)(ba), (e), (f). In the context of s 501(7), it is apparent that Parliament has made a distinct choice about the nature of the sentence for an offence that was to be used as an objective proxy for a “substantial criminal record” that will lead to mandatory cancellation — that being an offence punishable by death, life imprisonment, or a term of 12 months.

(Emphasis in original).

106    In answer to the Appellant’s reliance on Pearson, the Respondent submits that Pearson provides a useful contrast to the present provisions because the features of the provision considered in Pearson upon which the Full Court concluded a contra-intention was manifested are absent from s 34(2). There is considerable force in Respondent’s submission.

107    Having considered the decision in Pearson, I am not satisfied that by application of analogous reasoning, s 34(2) on its proper construction should be construed on the basis that rule as to number has been displaced by a contra-intention.

108    Unlike the provision considered in Pearson, s 34 did not (and does not) shift between the singular and the plural form at all, let alone in a deliberate and considered way that would support the existence of a contra-intention. Similarly, s 34 does not make express, specific provision for multiple offences and sentences. On its face, the provision consistently prefers drafting in the singular form. That is consistent with an intention that the general rule as to number be utilised in the construction of the provision. The constructional imperative at play in Pearson which was framed by reference to the imposition of a mandatory consequence is absent in the present circumstances — whereas s 501(3A) of the Migration Act provided that in some circumstances the Minister was required to cancel a visa held by a person if the Minister was satisfied that the person does not pass the “character test” because of the person’s having a “substantial criminal record”, the revocation power in s 34(2) is discretionary, which, as mentioned, preserves a flexibility to accommodate anomalous outcomes.

109    Similarly, another feature of the relevant context that led to the Full Court being persuaded of the contrary intention in Pearson is absent here. The Full Court considered that in circumstances where s 501 addressed the issue of multiple offences and terms in s 501(7)(d) — “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” — and made provision in respect of concurrent sentences in s 501(7A) that failure to make provision in relation to aggregate sentences was significant (at [47]):

… Had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.

110    There is no equivalent contrast within s 34(2) that provides a foundation to infer that Parliament was content to exclude from its designated proxy a total effective sentence in respect of two offences, part of which was to be served cumulatively, provided that the total term of imprisonment was 12 months or longer.

111    For completeness, I note that to the extent necessary the Respondent made a formal submission that Pearson was wrongly decided. With admittedly rhetorical flourish only, the Respondent gestures to the speed with which the Parliament introduced the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) in response to the decision, noting that the application for special leave to appeal filed in Pearson was heard after the amendments had been passed and was dismissed by the High Court on the basis that the only extant issue was the question of costs, which did not warrant the grant of special leave: Minister for Home Affairs & Anor v Pearson & Anor [2023] HCATrans 105. That is not a submission with which I need engage.

112    The final issue to address relevant to the construction of s 34(2) is the question of purpose, noting that an interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation: s 15AA.

113    As mentioned, the purpose of s 34(2) of the Citizenship Act was considered by the High Court in Jones. The majority of the High Court (Kiefel CJ, Gageler, Gleeson and Jagot JJ) held that the purpose of s 34(2)(a), 34(2)(b)(ii) and 34(2)(c) of the Citizenship Act was to protect the integrity of the administrative process by which grants of citizenship were made, including those made under the 1948 Act (see [34], [50] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); [106], [107], [174]-[175] (Edelman J agreeing); [188], [197] (Steward J); and [70]-[72], [95] (Gordon J)). Notwithstanding that the High Court’s consideration of the purpose of s 34(2) was made in a different context, it is relevant in the present context to have regard to the High Court’s considered articulation of the evident purpose of s 34(2) when considering the correct construction of the provision. I reject the Appellant’s submission to the contrary.

114    Section 34(2) confers on the Minister a discretion to revoke a person’s citizenship where it has been conferred on a person potentially not of good character as revealed by the person’s subsequent conviction in respect of conduct that occurred before the application for citizenship was made. In this way, s 34(2) is directed to protecting the integrity of the conferral process and the importance of the character criterion to that process. It enables the Minister to revoke citizenship in circumstances where if that which was not known at the time citizenship was conferred had been known, citizenship is unlikely to have been conferred. It operates harmoniously with the offences prohibition in s 24(6) which operates as a mandatory brake on the Minister’s capacity to approve an application for citizenship by conferral. The offences prohibition applies to a broader class of offences than the revocation power under s 34(2) – for example, s 24(6)(a) is not limited to proceedings for an offence that may attract a serious prison sentence, rather it relates to any proceeding for an offence against an Australian law in relation to the applicant for citizenship. Viewed in this context, s 34(2) would not best achieve its object, contrary to s 15AA of the Interpretation Act, if it is construed in the more confined manner for which the Appellant contends. The utility of the provision in promoting and preserving one of the general qualifying criteria for citizenship, namely, being of good character, would be undermined. I do not accept the Appellant’s submission that because in the exceptional cases of minors and stateless persons, good character is not an eligibility requirement for citizenship by conferral, that counts against the construction at which I have arrived.

115    For these reasons, I am satisfied that on the proper construction of s 34(2), the discretion conferred on the Minister to revoke the Appellant’s citizenship was validly enlivened. Accordingly, Ground 1A must be dismissed.

Ground 1: interpretation of “contrary to the public interest”

116    As mentioned, the Appellant accepts that sitting as a single judge, I am bound to dismiss this ground but formally maintains the ground. Accordingly, my consideration of this ground may briefly be stated. Ground 1 is dismissed for the following reasons.

117    As a matter of comity, I would follow the decision in TRHL unless I concluded that it was plainly wrong. I have not so concluded. To the contrary, I respectfully agree with the conclusion drawn by Gilmour J in TRHL at [41]. There is no meaningful distinction in the relevant statutory context of the public interest consideration in s 34(2)(c) between the concepts of it being contrary to the public interest for the Appellant to remain an Australian citizen and it being in the public interest that the Appellant not continue to be an Australian citizen. In the present statutory context, the phrases are synonymous, notwithstanding the difference in the way in which the negative qualification is incorporated into each phase.

118    The decision in TRHL was considered in Waraich by the primary judge (at [43]). The relevant section of the Full Court’s reasons is at [41] to [46]. The point relevantly decided in TRHL was conceded by the appellant in Waraich, both before the primary judge and on appeal. Before the Full Court, an issue was whether the error of law in not treating the two formulations of the public interest consideration as synonymous was material such that relief ought be refused in the exercise of the Court’s discretion: Waraich FCFCA at [47]. Given the concession as to the error of law, the Full Court did not, and was not required to, analyse the decision in TRHL. The Full Court did however observe that the appellant’s concession that the Tribunal had erred in not treating the two formulations of the public interest consideration as synonymous was correctly made.

119    I am conscious that given the way in which the issue arose in Waraich, the reasoning of the Full Court may not be strictly binding in the present context: see for example, CSR Ltd v Eddy (2005) 226 CLR 1 at [13] (Gleeson CJ, Gummow and Heydon JJ). Even so, I accept the Respondent’s submissions that the reasoning of the Full Court as to the appellant’s concession in Waraich having been correctly made is itself correct. Although, not bound, I agree with the Full Court’s conclusion.

120    I reject the Appellant’s contention that the Tribunal erred in law by construing the expression “contrary to the public interest” in s 34(2)(c) of the Citizenship Act as synonymous with something not being “in the public interest”. When the Tribunal’s reasons are read fairly in accordance with the well-established principles articulated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280, 287 (Neaves, French and Cooper JJ), it is clear that the Tribunal did not err in law in treating as synonymous the expressions held to be synonymous in TRHL, namely whether it was "in the public interest that the appellant not continue to be an Australian citizen" and the statutory language that "it would be contrary to the public interest for the appellant to remain an Australian citizen."

121    Accordingly, Ground 1 is dismissed.

CONCLUSION

122    For these reasons, the appeal is dismissed with costs.

Associate:

Dated:    2 August 2024