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Monday, 23 November 2015
Page: 13301


Mr STEPHEN JONES (Throsby) (17:16): The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 is about Australian citizenship, the fundamental right upon which all other rights as Australians rests. Citizenship is assumed but not defined in our Constitution. This is actually a conscious step of the founding fathers. They debated the issue at quite some length during a number of the sittings but decided, in the final draft of the Constitution, to leave the matter silent. At the time, of course, we were all subjects of the Crown. Citizenship at that point in time was synonymous with being a British subject. In fact, it was not until 1948-49 that this parliament assumed for itself the right to determine Australian citizenship, and the conditions upon which that would occur. Prior to that, the most that the Australian colonial parliaments, and then this parliament, could do was deem who was or was not a subject of the Crown—a British subject within these dominions.

In the parliamentary session that follows the atrocities that have occurred in France, Syria and Mali, it is very foolish indeed to suggest that this bill is not about something else, as well. It is for this reason that everybody who has spoken in this debate today has made mention of those atrocities. I stand with every member of this House in condemning the acts of those who were involved—those who planned it, sponsored it and financed it—and send a message of solidarity to the people of France and Mali, and also to the people of Syria and the surrounding countries, who are suffering because of these acts of terrorism.

The bill focuses on the means by which a person's citizenship can be renounced or revoked. There are three important ways. There is renunciation by conduct, which applies to a dual citizen, who would renounce their citizenship when they undertake 'conduct inconsistent with allegiance to Australia'. This is defined. The types of conduct covered by this provision are taken from the Criminal Code or existing criminal acts in the law. This is the section that has been subject to quite some conversation, particularly amongst legal scholars, and I will return to this in a moment.

The bill also provides for renunciation of citizenship due to 'fighting for, or being in the service of, a declared terrorist organisation'. For the purpose of this section the Minister for Immigration and Border Protection will make a declaration of the terrorist organisation in question. This will be a subset of the existing list of declared organisations under the Criminal Code.

There is a third provision, which is renunciation due to conviction for a terrorism-related offence. Again, the list of offences, which are outlined in the explanatory memorandum, are all existing offences taken from the Commonwealth Crimes Act and the Criminal Code.

There is complete consensus across the chamber that those who, through their actions, repudiate that bond of citizenship, who desecrate the values we all hold near and dear, have indeed rejected citizenship, and there should be a process for withdrawing their rights and obligations in Australian law. In fact, there should be a process for withdrawing their citizenship, where it does not leave these people stateless.

The question—in fact the only question that remains, in my mind—is which branch of government should perform this function. The founders of the Constitution had a very clear view of this. They believed that there needed to be a clear separation on the one hand between the powers of the parliament—the legislative and executive branches of government—and those of the judiciary. It was for those reasons that the powers and responsibilities of these two branches of government were separated in chapter 2 and chapter 3 of the Constitution. Indeed, for many centuries the separation, particularly between the executive and judicial arms of parliament, has been seen as a bulwark against tyranny. The reason for this was explained very ably by Justice Jacobs in R v Quinn; Ex parte Consolidated Foods Corporation, where he wrote:

The historical approach to … judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally … are judged by that independent judiciary which is the bulwark of freedom.

This is no small academic issue. We in this place and elsewhere know that the law expands by both analogy and example, so we need to be very, very cautious in this place about the powers that we purport to give to ourselves, to the executive and to particular ministers within the executive. There has been some concern voiced by members on this side of the House, Labor members, that the provisions of this bill extend beyond the powers which have been granted by the Constitution to the executive branch of the government. Indeed, that was considered by the Parliamentary Joint Committee on Intelligence and Security.

We have asked on several occasions that the Attorney-General furnish the Labor opposition with a copy of the advice from the Solicitor-General which the Attorney-General says exists and which the Attorney-General suggests provides advice to the Commonwealth that this legislation is constitutionally valid. We have asked on many occasions for this advice to be provided to the Labor opposition and it has not been forthcoming. The best that the Attorney-General could do was assert the advice existed and that the legislation was on all fours. We say that that is not good enough. It places a cloud over these particular provisions within this bill.

When the joint committee turned its mind to these provisions, it looked to similar provisions that exist in other jurisdictions. It looked at similar jurisdictions, those that we traditionally like to compare ourselves to. It looked to Canada, New Zealand, the United Kingdom, the United States and France. It is true that both the United Kingdom and France purport to give their minister or the executive within their governments the power to revoke citizenship from dual nationals for analogous reasons to those before the House today.

It is also true that there are similar provisions within the Canadian laws where the minister of citizenship and immigration has a discretion to revoke citizenship if a dual citizen has been convicted of a terrorism offence, high treason, treason or spying with particular minimum sentences. It is also true that in Canada the minister can ask the federal court to make a declaration that a person has served as a member of an armed force et cetera. What is important about this example is that the declaration is made by an independent judicial officer and not by the minister.

Such is also the case for our friends across the ocean in New Zealand. The New Zealand laws have been cited in this debate has an example for us. If you look at the New Zealand laws carefully you will see that there is also a judicial step whereby a minister or somebody acting on the instruction of the minister may serve a notice of intention to deprive to a so affected citizen and that person has 28 days to appeal to the high court for a declaration that there are insufficient grounds to justify that deprivation. So, again, in this case you can see that there is an example of a judicial step. So too is the case in the United States and many other countries I have looked at.

I repeat again that these are not small or academic issues. They are important issues which have been determined by the High Court, legal scholars and politicians for decades to be an important principle of law, protecting both the parliament and the people of this country, ensuring that we are continuously governed by the rule of law.

So we have some concerns. I have some concerns about these provisions in the bill. I would not be at all surprised if they were subject to a constitutional challenge and if that constitutional challenge was successful. Let me make it plainly clear: my concerns about these provisions are not directed at the objective of removing citizenship from a dual citizen who has acted on behalf of a terrorist organisation in the ways prescribed by the legislation. I support the government in that objective. These people have acted in a way that puts them at odds with the Australian people. In the words of the explanatory memorandum, they have severed the bond which unites us all. I believe that there should be a mechanism which enables a dual citizen to have their Austrian citizenship revoked. But, if we are going to do it, we should do it in a way which is constitutionally sound and constitutionally valid. In my view, it is best done in the way that it has been done in Canada, New Zealand, the United States and many other countries around the world where this power is restrained by a judicial step. With those brief comments and reservations, I commend the legislation to the House.