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Monday, 23 November 2015
Page: 13311


Mr THISTLETHWAITE (Kingsford Smith) (18:06): This is controversial legislation. The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 extends the conditions by which dual citizens may have their Australian citizenship cancelled. It is a very important issue. Citizenship defines who we are. We are Australians, and that defines everything about our rights and liberties and who we are as people. Since 1948, the Australian parliament has determined the conditions on which citizenship can be bestowed upon certain people, the rights and privileges associated with that and the conditions upon which that citizenship can be revoked, and, since that time, that particular law that bestows that citizenship and outlines the conditions under which it can be revoked have not been changed.

In providing a person with Australian citizenship, certain rights are conferred. Some of them are constitutional—the right to trial by jury; the right to freedom of religion. Some of them are implied in the Constitution—the right to political expression or freedom of speech and so on. But citizenship is also a two-way street. You are conferred with rights but you have certain obligations as well. You have to respect the rights and values of Australia enshrined in our Constitution, and our laws you must uphold and obey.

I have considered this issue quite thoroughly. You are trying to strike the appropriate balance between protecting the rights and liberties of citizens and putting in place the necessary measures to deter and to stop people from undertaking terrorist acts that would harm and seek to destroy the Australian way of life. I want to thank those in my community who have written to me about this issue. I have received some correspondence from people, and they outline valid concerns. The concerns that people have outlined in respect of the constitutionality of this bill are legitimate. It is going back over a history of Australian constitutional interpretation that does specify that such rights and privileges should not be removed by the executive level of government in this country but by the judiciary. That is clearly stated in our nation's Constitution. So I thank those who have written to me about this.

I also congratulate and thank the Labor members of the Parliamentary Joint Committee on Intelligence and Security who—through their thorough investigation of this bill and, indeed, their outlining of some of the problems of the original bill—have managed to secure 27 amendments to the bill which really inject a bit of common sense into what the government was proposing. There is no doubt that the original manifestation of this bill would have been unconstitutional and it would have fallen over at the first case that was brought before the High Court. That still may be the case. We do not know that, because the Attorney-General refuses to release the legal advice upon which the bill is founded. So that still may be the case. But the amendments that Labor members have put forward, and which have been accepted by government members on the committee and then by the government, do ensure that a bit of common sense has been injected into this bill. So that process was very important.

One of the first acts of the shadow Attorney-General was to ask the Attorney-General, George Brandis, to present the Solicitor-General's legal advice—to disclose to the Australian people the advice upon which the government had acted which demonstrates that this bill is constitutional. After all, the worst case scenario for the government could be to introduce this new law, to have it passed by the Australian parliament, and then for it to fall over at its first challenge in the High Court. So we sought the advice that the government had acted upon. Unfortunately, that advice was not forthcoming. The Attorney-General did provide a letter providing assurances that the bill is constitutional, but pardon us if we take those assurances with a grain of salt, given the Attorney-General's performance on a number of legal issues in the past. So, in the wake of that, we referred the bill to the joint committee on security and intelligence, and they conducted an inquiry, and, as I said, there have been 27 recommendations that have strengthened this bill.

I want to make it very, very clear: I am horrified, like most Australians, by the acts of terrorist organisations and terrorists, not only in Australia but elsewhere throughout the world. In particular, in the wake of what has occurred in France and in Mali over the course of the last week, we do need to ensure that our security, intelligence and police agencies have the necessary and appropriate powers to combat this and to protect Australian citizens. This is something that is acutely known by the community that I represent. We lost more members as a result of the Bali bombings some 11 years ago than probably any other community in the country. It is something that has hit home in our area.

So we need to make sure that dual nationals who do undertake serious terrorist offences, either overseas or in Australia, do lose their Australian citizenship because, in doing so, you sever the bond that you have with the rest of Australia. You take yourself outside of the realms of our Constitution, our laws and our way of life. And, for that, you deserve to have your citizenship cancelled. But, in doing so, I want to make sure, by the same token, that, if a court or a minister acts, that act is constitutional. That has been the basis upon which I and the Labor members of this parliament have approached this legislation, because the original version of this legislation, we believe, would not have passed that test. So the committee went on to make 27 recommendations, which Labor supports, which substantially improve this bill that has been put forward by the government.

This legislation has not been updated since 1948 when it was first enacted, and I do feel that the time has come to update this act in order to equip our security forces and intelligence officers to better combat the threat that is posed by non-state actors such as Daesh, Jemaah Islamiah and other terrorist organisations. Citizenship is one of our most fundamental rights, and I will not support any moves that undermine that right; nor will I or other Labor members tolerate any changes that sever or weaken the status of our country's many dual nationals.

As a result of the 27 recommendations made by the Parliamentary Joint Committee on Intelligence and Security, there will essentially be three scenarios covered by three new provisions which will result in dual citizens losing their citizenship as a result of terrorist related activity. Those scenarios are: a dual national who is convicted of a terrorist offence in Australia, or a dual national currently overseas engaging in terrorist activities or collaborating with a declared terrorist organisation like ISIS, and renunciation by conduct. The bill actually specifies that renunciation by conduct as dual citizens who undertake conduct inconsistent with their allegiance to Australia, as defined in the bill. The types of conduct covered by this provision are taken from the Criminal Code and all existing criminal acts and law. This is a section that has been subject to scrutiny and to the issue of constitutionality, but the protections put in place as a result of the 27 recommendations do strike a much fairer balance. They do go to that issue of protecting rights and privileges whilst deterring terrorism but making sure that the decision is constitutional.

The provisions relating to those convicted of a terrorist related offence will be amended such that the list of offences to which this section relates will be reduced as a result of that inquiry. For instance, destruction of Commonwealth property is no longer included as an offence. We are now only talking about serious criminal offences that would constitute grounds for conviction for an offence and trigger the minister's discretion on dual citizens. The provisions relating to conduct inconsistent with allegiance to Australia will also be amended such that they will only apply to dual citizens who have engaged in the conduct offshore or who are engaged in the conduct onshore and are now located offshore—that is, the provision is aimed at providing national security agencies with another tool that would prevent these people returning to Australia if they have been involved in terrorist related conduct.

The bill will also outline a set of criteria for the minister to consider before declaring a terrorist organisation for the purposes of the act. The declaration of the organisations will also be a disallowable instrument. The term 'in service of' will be clarified for the purposes of section 35. This will ensure it is clear that acts done under duress or unintentionally—for example, a parent covering living expenses of a radicalised teenager—would not be covered by the act. All provisions will only apply in the event that the minister receives an adverse security assessment in relation to the dual citizen. The minister will be required to provide, or make reasonable attempts to provide, the dual citizen with notice of the revocation, unless that notification would compromise ongoing operations or national security. The decision not to provide must be reviewed every six months thereafter. Revocation of a person's citizenship will not affect the citizenship of other family members, including children in particular. That is a very important amendment that has been secured. A person will have the right to appeal the loss or revocation of their citizenship to the Federal Court. It is important that there is that level of judicial review of the ministerial decision.

In total, these amendments significantly narrow the scope of the bill and represent a far more targeted approach to what was originally proposed by the government. In my view, the amendments better balance the rights of Australian citizens as conferred by this parliament through legislation, enshrined in our Constitution and implied by the courts over many years. Also, rights and protections are ensured for our security intelligence agencies and our police to ensure that they have the necessary tools and the necessary penalties to punish people and deter people from engaging in these insidious acts.

We take terrorism and this issue of citizenship very seriously—extremely seriously. That is why Labor has provided quite a great deal of scrutiny of these laws. We are talking about one of the most fundamental rights that defines people: citizenship. We should not take lightly any bill which seeks to expand the removal of that citizenship. That is the approach that we have taken with this bill, but, in doing so, we have made sure that, in combating the rise of terrorism and terrorist organisations throughout the world, Australia is playing its part and, importantly, protecting Australian citizens. On that basis, I am happy to commend this bill to the House.