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Monday, 23 November 2015
Page: 13288


Ms PARKE (Fremantle) (16:26): I wish to place on record my deep level of concern about the Australian Citizenship Amendment (Allegiance to Australia) Bill. I am grateful to the many learned people who made submissions to the inquiry undertaken by the Parliamentary Joint Committee on Intelligence and Security. I note that some of the concerns expressed were taken into account in the PJC recommendations and have resulted in a bill that is significantly improved from the original bill in terms of being narrower in scope and providing for some review and oversight. I thank the Labor members of the PJC for their efforts in achieving those amendments. Notwithstanding those improvements, I believe the bill is still likely to be judged unconstitutional. In my view, the bill remains contrary to the rule of law and the principles of natural justice and so should not be passed by this parliament.

The government is deceiving the Australian community by presenting this bill as a relatively minor update to the existing Citizenship Act, under which a person ceases to be an Australian citizen if they are a foreign national and serve in the armed forces of a country at war with Australia. The government says this bill merely extends those provisions to include anyone who fights overseas for a declared terrorist organisation. But, even with the recent improvements, the bill is much broader than that. New section 33AA provides for renunciation by conduct, which means a dual citizen automatically renounces their citizenship if they act inconsistently with their allegiance to Australia by engaging in terrorist activity. As a result of a recommendation from the intelligence committee, this provision has been amended to limit the operation of the section to persons who have engaged in relevant conduct offshore or to those who have engaged in conduct onshore but left Australia before being brought to trial in respect of that conduct. Although we are informed that this provision is intended to deal with a person who has committed a terrorist act and then fled the country, this is not what the bill actually provides. Under the wording of the bill, a dual citizen who leaves the country for any reason—for example, a week's holiday in Bali—could have their citizenship terminated without trial simply because they are out of the country. In the case where authorities believe a dual citizen has acted in a manner inconsistent with their allegiance to Australia but where the evidence may not be sufficient to convict them of a relevant serious terrorist offence under section 35A, the new section 33AA could allow authorities to wait until the person leaves the country for any reason and then proceed with the automatic renunciation of citizenship. The government might say this is not the intended operation that provision, but there is nothing in the bill to prevent this scenario occurring. The Law Council of Australia, in its submission to the intelligence committee, commented:

… the scheme may be used to avoid the long-standing judicial procedures for testing and challenging evidence in criminal trials that normally apply before a person is presumed to have engaged in unlawful conduct and substantially deprived of their liberty. the scheme may be used to avoid the longstanding judicial procedures for testing and challenging evidence in criminal trials that normally applied before a person is presumed to have engaged in unlawful conduct and substantially deprived of their liberty. This may increase the likelihood of error and mean that innocent persons are mistakenly captured. For this reason, loss of citizenship should ideally only occur after a conviction by a court. This is particularly important where a person is in Australia and the alleged conduct is said to have occurred within Australia and difficulties with foreign evidence are minimal.

Also, as the Australian Human Rights Commission noted in its submission, automatic termination of citizenship means that an individual's circumstances and the relative seriousness of their conduct would not be taken into account. The practice of automatically nullifying a person's citizenship may be justified and make sense in some contexts, as explained by constitutional law Professor Ann Twomey, whose submission to the intelligence committee states:

When the concept of renunciation or loss of citizenship was first formalised in Australian legislation, citizenship was automatically lost as a consequence of 'a voluntary and formal act' of acquiring citizenship of another country, making a formal declaration pronouncing Australian citizenship, serving in the armed forces of a country at war with Australia and residing outside of Australia for a certain period of time. Each of these acts was readily proved by objective facts usually in the possession of governments.

But, as Professor Twomey has noted:

…when it comes to questions of personal intention and knowledge as to matters such as what any training might be used for or what money might be used for, then these would normally be matters that need to be proved before any action could be taken, and could therefore not be triggers for automatic termination of citizenship—at least not without a procedure for determining the facts.

On the question of whether a person has intentionally engaged in conduct inconsistent with their allegiance to Australia, the notion of automatic renunciation is nonsensical: only a human being can make the necessary judgement about the facts that underlie that question of intention before a decision can be made to revoke citizenship. Revocation does not happen magically courtesy of the universe.

From a constitutional point of view, any determination that a person has engaged in criminal conduct with the requisite intention sounds very much like a power that can only be exercised by a court under the doctrine of separation of powers as elucidated by the High Court. In terms of the natural justice aspects of section 33AA, the Law Council notes that its Rule of Law Principles require that 'executive decision making should be subject to meaningful judicial review'.

It is true that the bill does provide that a notice regarding renunciation of citizenship must be given to the person as soon as practicable and that such notice should set out the person's rights of review. Unfortunately, the bill also provides that the minister may decide not to give such notice if he or she is satisfied that this 'could prejudice the security, defence or international relations of Australia'! Given that in such cases a determination has already been made by the executive that a person has engaged in terrorist conduct, it is hard to conceive a situation where the minister would not be satisfied that such a notice could prejudice security, defence or international relations. The minister is not required to have regard to any particular criteria in making this determination. The only responsibility on the minister is to consider whether to revoke such determination every six months. This is far from amounting to the judicial review required under our rule of law.

In my view, section 33AA, which provides for renunciation of citizenship through conduct and does not require a conviction, is unnecessary and, worse, is contrary to the Rule of Law Principles with regard to the presumption of innocence, the requirement for proof beyond a reasonable doubt, the administrative law principles applicable to the exercise of discretionary administrative powers which affect persons' rights and interests, as well as constitutional issues of separation of powers.

Similar concerns regarding constitutionality and compliance with the rule of law exist with regard to section 35, which concerns 'automatic' renunciation of citizenship due to fighting for, or being in the service of, a declared terrorist organisation. As with section 33AA, the notion of automatic renunciation is nonsense, given that it will necessarily involve a determination by authorities about the conduct undertaken and whether that constitutes fighting or 'being in the service of' a terrorist organisation.

Some people would argue that any involvement with a terrorist organisation is grounds enough to revoke someone's citizenship, but putting aside the very important question of establishing through a fair process that such conduct has in fact occurred, it is also worth thinking about the complexities already present in the current conflict in the Middle East. For example, in Iraq and Syria, there is a multiplicity of groups operating on the ground, not least the murderous Assad regime itself, and there have already been instances where our military efforts are in alignment with groups on the ground like the PYD that have clear associations with listed terrorist organisations. The issue of whose side Australia is on at any one time is murky at best.

The provision of a personal power vested in the minister to rescind a notice advising a dual citizen that their Australian citizenship has been revoked does not cure the flaw in this bill. There is no obligation on the minister to consider whether to rescind and no mechanism by which such a consideration can be triggered. The rules of natural justice are excluded for the exercises of ministerial power in the bill. Furthermore, as Professor Ben Saul of the University of Sydney observed in his submission, the bill may, with some bitter irony, facilitate terrorism and encourage impunity for terrorist crimes in that:

Australian 'terrorists' may remain free to commit terrorism overseas and enjoy an increased likelihood of impunity for their crimes. Foreign fighters who wish to return to Australia would no longer be subject to law enforcement measures in Australia designed to neutralize or contain the threat they pose, such as by arrest, prosecution and imprisonment; imposition of anti-terrorism control orders; surveillance; or deradicalization and rehabilitation strategies. Foreign fighters who wish to remain overseas would no longer be subject to efforts by Australian law enforcement to secure their return to face justice in Australia, such as by extradition, mutual legal assistance, or removal/deportation to Australia.

More generally on the issue of citizenship, I wish to quote an article by John Menadue, former Secretary of the Department of Immigration in the Fraser government, written on 6 August 2015 and titled 'Don't tamper with citizenship':

There are good reasons why we should not tamper with citizenship. Citizenship is a critical and unifying national symbol and should not be used to address alleged short-term problems. Acts committed by Australians should be punished under criminal law and if the law is not effective for the job it should be strengthened. …

A key principle of all citizenship is that people of many different backgrounds can become good and loyal Australian citizens. In the present situation that means that Muslims, like others, can become good Australian citizens. It is belief in that principle that holds this country together. If we debase that principle we should not be surprised that many people, particularly young people with origins in the Middle East, might decide that they have no future in this country. …

As Malcolm Turnbull has said, citizenship revocation should not be a 'bravado' issue and used to weaken our rule of law. Government bravado and promotion of fear is making us less safe. It is undermining citizenship.

I also want to mention the contribution of Professor Kim Rubenstein, who in her evidence to the committee said the following:

I see citizenship as being something much more profound. There are better ways and more appropriate ways for us as a nation to be dealing with concerns about terrorism in a globalised world. I think that even more particularly, in relation to the fact that the Bill is targeting dual citizens in a multicultural nation, the consequence of that will actually be counterproductive to the very principles of trying to create an inclusive society where members of the community are not attracted to terrorist activities or to activities against the Western liberal democratic system.

Both these contributions speak eloquently to the foundational damage that lies in the hasty, reactive, ill-considered and, more than likely, ineffective changes that this bill sets out to make. Some estimates suggest that fully one fifth of all Australians are either dual citizens or eligible to be dual citizens. That is a lot of people who potentially will be affected by this bill. When new citizens take the oath or affirmation, they state:

From this time forward, I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey.

In my view there have been a number of actions taken by this government that run counter to the rights and liberties that new citizens are asked to respect—and, ironically, this bill would be one of them. What is more, while we rightly ask that citizens uphold and obey Australia's laws, this bill runs counter to long-established principles of the rule of law. On the question of allegiance to any nation it is worth remembering that the notion of allegiance has meant different things at different times throughout our history. I was reminded, during the course of the recent Centenary of Anzac commemorations, that our troops departed to the waving of the Union Jack—and we participated in that war as British subjects.

We should remember, too, the policy of internment that was applied to Australians of Italian, German and Japanese descent in the course of the Second World War. That was a time that could genuinely be described as a period in which the fate of entire nations and the safety of their citizens was at threat. Yet now we rightly look back with regret on the decision made to mistreat and intern thousands of Australian residents as 'enemy aliens' or 'naturalised persons of enemy origins', including many born in Australia. We should not make the mistake of believing that we are incapable in 2015 of similar errors of judgement, or of introducing similarly ill-judged and ineffective policy.

What concerns me about laws like the one we are debating here today is the way they fit into a merry-go-round of circular reasoning that is dishonest about the real world and to some degree works to perpetuate the problems they purport to address. This particular bill is unlikely to give rise to any mass revocation of Australian citizenship, but that does not militate against its fundamental wrongness—because, just as the minister said in his second reading speech that no-one should take their Australian citizenship lightly, so it must also be said that no government should take away, lightly or lazily, a person's citizenship.

It is highly questionable whether this bill adds anything of great substance to Australia's legal and law enforcement protections against those who might do us harm. In the broadest terms, Australia is a remarkably safe place. Indeed there are few safer places on this planet. We should not be complacent about danger, but we must be vigilant when it comes to the potential for government to make us less free and even less safe by banging on the drum of fear. On the list of real dangers to the wellbeing of ordinary Australians, the prospect of harm from terrorism ranks a long way down. Harm from tobacco, harm from alcohol, harm from domestic violence, harm from suicide—these are much greater sources of harm than terrorism by some considerable margin. That does not mean we should ignore the risk of terrorist acts, or forgo policy and program work to prevent them. It does mean we should be honest with ourselves and the Australian people and resist the political temptation to exaggerate our response, which inevitably means we cause damage to our long-established framework of rights and freedoms. In the end, and I suspect from the beginning, the purpose of this bill is simply to act tough, to emphasise the issue of security, to inflate the threat posed to Australia and to Australians, and to reap the cynical political benefits of so doing.