Lose Australian citizenship by S17 of the old Citizenship Act? You should read:

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Lose Australian citizenship by S17 of the old Citizenship Act? You should read:


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Old 4th September 2017, 12:31 PM
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Default Lose Australian citizenship by S17 of the old Citizenship Act? You should read:

The following list was sent to members of Australian Parliament including the PM and AG. No response received. I believe the list to be facts that show S17 since amendment in 1984 was unconstitutional and unlawfully operated to alienate any Australian, and includes no question of law not already been answered by Australian courts. Disagreement is welcomed though please provide supporting alterative facts. Australian government evades the following with support of others:

1. Prior to Australia becoming a sovereign state, Westminster alone held power to alienate British subjects in Australia who were born to Australia: born in Australia to Australian parents.
2. The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates. When enacted in 1900, no equivalent power to that of Westminster was granted to Australian Parliament for the purpose of alienating those born to Australia, except those who alienated themselves by emigration.
3. The Australian Constitution has not been amended to extend the power of Australian Parliament to alienate Australians.
4. “I have previously stated my view that, subject to a qualification, Parliament, under pars (xix) [naturalisation and aliens] and (xxvii) [immigration and emigration] of s 51, has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode.” - Singh vs Queen [2004]HCA43, Gleeson CJ.
5. “It is in the nature of a written, federal Constitution that a division of governmental power, necessarily involving limitations upon such power, agreed upon in the past, binds future governments. That the terms of the agreement were to have that future operation is a matter relevant to an understanding of their meaning, but the role of a court is to understand and apply the meaning of the terms, not to alter the agreement.“ - Singh vs Queen [2004]HCA43, Gleeson CJ.
6. “The qualification is that Parliament cannot, simply by giving its own definition of "alien", expand the power under s 51(xix) to include persons who could not possibly answer the description of "aliens" in the Constitution”. - Singh vs Queen [2004]HCA43, Gleeson CJ.
7. Australian Parliament holds power to alienate naturalised Australians by an Act of Parliament, though not “simply by giving its own definition of "alien", expand the power under s 51(xix) to include persons who could not possibly answer the description of "aliens" in the Constitution”.
8. Australian Parliament holds no power to alienate those born to Australia, except those who alienate themselves by emigration, until the power is acquired by exercising S128 Mode of altering the Constitution; by referendum. Any claim such power exists is founded on altering the interpretation of the Constitution, thereby altering the agreement of the people, and denying the people of Australia the sole power to amend the Constitution.
9. In 1984, the first year of the Hawke government, S17 of the Citizenship Act was amended.
Australian Citizenship Act 1984 S17 (applied to any Australian acquiring foreign citizenship from 22Nov84 up to and including 3Apr02):
“(1) A person, being an Australian citizen who has attained the age of 18 years, who does any act or thing:
(a) the sole or dominant purpose of which; and
(b) the effect of which,
is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen.
(2) Subsection (1) does not apply in relation to an act of marriage.”
10. The Federal Court case Government v Gugerli[1992]238 ruled that “dominant purpose” to actuate S17 must be found by a discretionary decision, not by fact. J.Davies notes:
• S22: "As can be seen, the test looks to the factors which influenced the mind of the person doing the act, factors which actuated the carrying out of the step."
• S24. "This is not one of those instances where the purpose of an act is to be determined by reference to the effect of that act, the purpose being that which the act in fact achieves."
• S25. "Although "purpose" in the sense in which the word is used in s.17 looks to a state of mind, it is not to be equated in all respects with motive. If a person's sole or dominant purpose in doing an act is to acquire the citizenship of another country, it matters not why the person wishes to acquire the citizenship or what use he or she will make of it. The motive for acquiring the citizenship is irrelevant. It is sufficient that the act is done with the sole or dominant purpose of acquiring it".
11. The Administrative Review Council published in Comcare website the Best Practice Guidance for Decision Making noting:
"The administrative law requirements for lawful decision making cover the following matters:
• Legality. A decision must be made under legal authority by an authorised person
• Procedure. Legislation might stipulate procedures to be followed when making a decision
• Rationality. The reasoning for a decision must conform to minimum legal standards
• Accountability. A decision maker is accountable for a decision and must notify a person of their right to review."
12. The 1984 amendment of S17 established no statutory criteria to be satisfied for a decision of “dominant purpose”. Therefore every decision must rely on the actual bias of the decision maker to find a person’s “dominant purpose”. This violates Articles 9 and 15 of the UDHR.
13. The 1984 amendment of S17 establishes no legal authority to anyone to make the decision on “dominant purpose”. Therefore every decision maker makes the decision in excess of statutory power.
14. A lawful decision on S17 since 1984 is impossible, and no citizenship could be ceased.
15. Australian Citizenship Act 2007 makes provision for Australians alienated by a decision on S17 to apply to resume citizenship; a status granted at the discretion of the Minister. The majority of those affected will be Australian born who, under the Constitution, cannot be alienated unless by emigration. Those who accept alienation on the unlawful decision of S17 in order to resume citizenship, must also accept future lawful alienation by the expanded constitutional powers that apply only to naturalised Australians.
16. The 1984 amendment of S17 put decision makers in the position of having to make, in every case, an arbitrary decision in excess of statutory power to alter the status of an Australian to an alien.
17. Unless the 1984 amendment of S17 is found unconstitutional, all decision makers, and all in public office who support the decisions, are subject to punishment for misconduct of any decision to alienate any Australian.
18. Without statutory conditions to satisfy to decide “dominant purpose”, the Department felt free to set its own conditions. The only guideline for finding "dominant purpose", to determine actuating of S17 to cease Australian citizenship, is Amendment 16 July 1995, Chapter 11 How People Cease to be Australian Citizens, Section 11.2.5. It can only be read as racially discriminating.
“11.2.5 The following legal advice has been provided on ‘sole or dominant purpose’:
• Once a person does an act which results in the acquisition of foreign citizenship there is a prima facie case that this acquisition was his/her sole or dominant purpose in doing the act.
• Those who voluntarily apply for and subsequently acquire the citizenship of another country will usually find it difficult to establish that the ‘sole or dominant purpose’ of the act of applying was other than to acquire the citizenship applied for. The fact that the reason behind the application was so that he/she would be eligible to obtain employment, hold a license, etc, does not mean that the ‘sole or dominant purpose’ of the particular act of actually applying to obtain citizenship was other than the acquisition of that citizenship.
• Section 17 now contains an element of intention to acquire a foreign citizenship and establishes a link between cause and effect of their act in question: thus, for example, a person obtaining permanent residence in Israel (oleh status) and consequently Israeli citizenship since 22 November 1984 will not lose his/her Australian citizenship unless in applying for such his/her only or main object was to acquire Israeli citizenship. “
The guideline finds an Australian Jew emigrating from Australia to become a resident of Israel acquiring Israeli citizenship did not lose Australian citizenship, unless that person can prove acquisition of Israeli citizenship was the main objective. All other Australians must prove the opposite that, whatever act acquired foreign citizenship, was not the main objective. The discrimination violates international treaty of International Convention on the Elimination of All Forms of Racial Discrimination.
19. Australian Citizenship Act excludes provision for tribunal review of the decision on S17, “Loss of citizenship on acquisition of another nationality”, ceasing an Australian’s citizenship. This violates Article 8 of the UDHR.
20. The new Australian Citizenship Act 2007 repealed all forms of S17 of previous Acts though accepts, under S17(5), operation of all previous forms of S17.
21. The Government prevents fair review of decisions to alienate Australians. Examples may be found in Whirlpool forum 'Can Australian-born be alienated from Australia?' or by request from the OP.

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Old 4th September 2017, 01:05 PM
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The following list was sent to members of Australian Parliament including the PM and AG. No response received. I believe the list to be facts that show S17 since amendment in 1984 was unconstitutional and unlawfully operated to alienate any Australian, and includes no question of law not already been answered by Australian courts. Disagreement is welcomed though please provide supporting alterative facts. Australian government evades the following with support of others:

1. Prior to Australia becoming a sovereign state, Westminster alone held power to alienate British subjects in Australia who were born to Australia: born in Australia to Australian parents.
2. The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates. When enacted in 1900, no equivalent power to that of Westminster was granted to Australian Parliament for the purpose of alienating those born to Australia, except those who alienated themselves by emigration.
3. The Australian Constitution has not been amended to extend the power of Australian Parliament to alienate Australians.
4. “I have previously stated my view that, subject to a qualification, Parliament, under pars (xix) [naturalisation and aliens] and (xxvii) [immigration and emigration] of s 51, has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode.” - Singh vs Queen [2004]HCA43, Gleeson CJ.
5. “It is in the nature of a written, federal Constitution that a division of governmental power, necessarily involving limitations upon such power, agreed upon in the past, binds future governments. That the terms of the agreement were to have that future operation is a matter relevant to an understanding of their meaning, but the role of a court is to understand and apply the meaning of the terms, not to alter the agreement.“ - Singh vs Queen [2004]HCA43, Gleeson CJ.
6. “The qualification is that Parliament cannot, simply by giving its own definition of "alien", expand the power under s 51(xix) to include persons who could not possibly answer the description of "aliens" in the Constitution”. - Singh vs Queen [2004]HCA43, Gleeson CJ.
7. Australian Parliament holds power to alienate naturalised Australians by an Act of Parliament, though not “simply by giving its own definition of "alien", expand the power under s 51(xix) to include persons who could not possibly answer the description of "aliens" in the Constitution”.
8. Australian Parliament holds no power to alienate those born to Australia, except those who alienate themselves by emigration, until the power is acquired by exercising S128 Mode of altering the Constitution; by referendum. Any claim such power exists is founded on altering the interpretation of the Constitution, thereby altering the agreement of the people, and denying the people of Australia the sole power to amend the Constitution.
9. In 1984, the first year of the Hawke government, S17 of the Citizenship Act was amended.
Australian Citizenship Act 1984 S17 (applied to any Australian acquiring foreign citizenship from 22Nov84 up to and including 3Apr02):
“(1) A person, being an Australian citizen who has attained the age of 18 years, who does any act or thing:
(a) the sole or dominant purpose of which; and
(b) the effect of which,
is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen.
(2) Subsection (1) does not apply in relation to an act of marriage.”
10. The Federal Court case Government v Gugerli[1992]238 ruled that “dominant purpose” to actuate S17 must be found by a discretionary decision, not by fact. J.Davies notes:
• S22: "As can be seen, the test looks to the factors which influenced the mind of the person doing the act, factors which actuated the carrying out of the step."
• S24. "This is not one of those instances where the purpose of an act is to be determined by reference to the effect of that act, the purpose being that which the act in fact achieves."
• S25. "Although "purpose" in the sense in which the word is used in s.17 looks to a state of mind, it is not to be equated in all respects with motive. If a person's sole or dominant purpose in doing an act is to acquire the citizenship of another country, it matters not why the person wishes to acquire the citizenship or what use he or she will make of it. The motive for acquiring the citizenship is irrelevant. It is sufficient that the act is done with the sole or dominant purpose of acquiring it".
11. The Administrative Review Council published in Comcare website the Best Practice Guidance for Decision Making noting:
"The administrative law requirements for lawful decision making cover the following matters:
• Legality. A decision must be made under legal authority by an authorised person
• Procedure. Legislation might stipulate procedures to be followed when making a decision
• Rationality. The reasoning for a decision must conform to minimum legal standards
• Accountability. A decision maker is accountable for a decision and must notify a person of their right to review."
12. The 1984 amendment of S17 established no statutory criteria to be satisfied for a decision of “dominant purpose”. Therefore every decision must rely on the actual bias of the decision maker to find a person’s “dominant purpose”. This violates Articles 9 and 15 of the UDHR.
13. The 1984 amendment of S17 establishes no legal authority to anyone to make the decision on “dominant purpose”. Therefore every decision maker makes the decision in excess of statutory power.
14. A lawful decision on S17 since 1984 is impossible, and no citizenship could be ceased.
15. Australian Citizenship Act 2007 makes provision for Australians alienated by a decision on S17 to apply to resume citizenship; a status granted at the discretion of the Minister. The majority of those affected will be Australian born who, under the Constitution, cannot be alienated unless by emigration. Those who accept alienation on the unlawful decision of S17 in order to resume citizenship, must also accept future lawful alienation by the expanded constitutional powers that apply only to naturalised Australians.
16. The 1984 amendment of S17 put decision makers in the position of having to make, in every case, an arbitrary decision in excess of statutory power to alter the status of an Australian to an alien.
17. Unless the 1984 amendment of S17 is found unconstitutional, all decision makers, and all in public office who support the decisions, are subject to punishment for misconduct of any decision to alienate any Australian.
18. Without statutory conditions to satisfy to decide “dominant purpose”, the Department felt free to set its own conditions. The only guideline for finding "dominant purpose", to determine actuating of S17 to cease Australian citizenship, is Amendment 16 July 1995, Chapter 11 How People Cease to be Australian Citizens, Section 11.2.5. It can only be read as racially discriminating.
“11.2.5 The following legal advice has been provided on ‘sole or dominant purpose’:
• Once a person does an act which results in the acquisition of foreign citizenship there is a prima facie case that this acquisition was his/her sole or dominant purpose in doing the act.
• Those who voluntarily apply for and subsequently acquire the citizenship of another country will usually find it difficult to establish that the ‘sole or dominant purpose’ of the act of applying was other than to acquire the citizenship applied for. The fact that the reason behind the application was so that he/she would be eligible to obtain employment, hold a license, etc, does not mean that the ‘sole or dominant purpose’ of the particular act of actually applying to obtain citizenship was other than the acquisition of that citizenship.
• Section 17 now contains an element of intention to acquire a foreign citizenship and establishes a link between cause and effect of their act in question: thus, for example, a person obtaining permanent residence in Israel (oleh status) and consequently Israeli citizenship since 22 November 1984 will not lose his/her Australian citizenship unless in applying for such his/her only or main object was to acquire Israeli citizenship. “
The guideline finds an Australian Jew emigrating from Australia to become a resident of Israel acquiring Israeli citizenship did not lose Australian citizenship, unless that person can prove acquisition of Israeli citizenship was the main objective. All other Australians must prove the opposite that, whatever act acquired foreign citizenship, was not the main objective. The discrimination violates international treaty of International Convention on the Elimination of All Forms of Racial Discrimination.
19. Australian Citizenship Act excludes provision for tribunal review of the decision on S17, “Loss of citizenship on acquisition of another nationality”, ceasing an Australian’s citizenship. This violates Article 8 of the UDHR.
20. The new Australian Citizenship Act 2007 repealed all forms of S17 of previous Acts though accepts, under S17(5), operation of all previous forms of S17.
21. The Government prevents fair review of decisions to alienate Australians. Examples may be found in Whirlpool forum 'Can Australian-born be alienated from Australia?' or by request from the OP.
Hi

Can you summarize this a bit?

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Old 5th September 2017, 12:10 AM
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Default Can it be summarized?

Quote:
Originally Posted by sharma1981 View Post
Hi

Can you summarize this a bit?
Hi Sharma,

The post list facts sent to members of Parliament, and others, that would affect constitutionality and validity of S17 of the old Australian Citizenship Act 1948 when used to alienate Australians. There are 21 points listed. A bit of a hard read but more difficult to summarise without losing content, or being accessed of cherry picking. Sorry for the onslaught of text, but those who have been alienated from Australia by loss of citizenship may find it worth the read. Moreover, anyone considering challenging a decision to cease their citizenship may find the material useful.


Last edited by ExiledOz; 5th September 2017 at 12:13 AM. Reason: clarity
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