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Monday, 23 November 2015
Page: 13317


Mr SNOWDON (Lingiari) (18:32): When we rise to speak in this debate on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, given the events over the last few weeks—particularly the events in France, Mali and Lebanon—it gives us cause to think and reflect about what it is to be an Australian and to understand our obligations as citizens of this great country and that with citizenship you have responsibilities. Those responsibilities require you to act in a particular way in understanding your obligations to us, because when you declare your pledge, under the Australian Citizenship Act, it says:

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.

The purpose of this bill is to amend the Australian Citizenship Act 2007 to provide for automatic cessation of Australian citizenship, including Australian citizenship by birth, of a person who is also a national citizen of another country, that is, a dual national, where that person renounces their Australian citizenship by engaging in specified conduct inconsistent with their allegiance to Australia, fights for or is in the service of a declared terrorist organisation outside of Australia and is convicted of a specified offence under the Criminal Code or the Crimes Act 1914.

I think it is worthwhile reflecting just for a moment on the history of citizenship in this country. Citizenship has evolved in Australia. At Federation in 1901, 'British subject' was the sole civic status noted in the Australian Constitution. The Australasian Federal Convention of 1897-98 was unable to agree on a definition of the term 'citizen' and wanted to preserve British nationality in Australia. An administrative concept of citizenship arose from the need to distinguish between British subjects who were permanent residents and those who were merely visitors. This was necessary for the Commonwealth to exercise its powers over immigration and deportation.

Motivated principally I think by the nationalism of Arthur Calwell, the Minister for Immigration between 1945 and 1949, this administrative concept was formalised in the Nationality and Citizenship Act 1948. In 1958, the act was amended so that naturalisation could only be revoked if obtained by fraud. This prevented a naturalised person being stripped of citizenship and deported. Throughout the 1960s, Australian citizens were still required to declare their nationality as British. The term 'Australian nationality' had no official recognition or meaning until the act was amended in 1969 and renamed the Citizenship Act. This followed a growing sense of nationalism and the declining importance of the British Empire for Australians. I remember well this period because it was a debate around the role of the EEC and Britain's entry into the common agricultural policy, and so the preferential arrangements that existed between Australia and the United Kingdom, in terms of trade, started to change irrevocably. So the closeness of mother England became somewhat more distant.

However, it was not until 1984 that Australian citizens ceased to be British subjects. The Australian Constitution does not grant the Commonwealth parliament an express power to make laws with respect to citizenship. Nonetheless, it has long been accepted that a broad power to pass such laws exists. But, as we know through the discussion of this piece of legislation that is currently before us, the High Court has never precisely delineated the ambit of this power and its constitutional boundaries. There have been a number of commentaries around that particular issue in the public debate and discussion leading up to the passage of this bill.

The minister, when initially introducing the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, addressed the challenge posed by dual citizens who betray Australia by participating in serious terrorist related activities. But the central emphasis of the bill is the importance of allegiance to Australia in the concept of citizenship. That is fundamental for all of us. The introduction of this bill and the subsequent work, as we have heard, of the members of the Parliamentary Joint Committee on Intelligence and Security, in their final presentation of a unanimous report containing 26 substantive recommendations to improve the bill, shine a light on an area of constitutional law generating much discussion in our community.

Of course, there are many still who believe that the constitutional validity of the proposed changes that we are putting through this parliament today is open to question, but as I understand it we have had written assurances from the Attorney that he believes the amendments we are making today are constitutional. Let it be said that we hope they are. But, if they are not, then we know that there has been a lot of discussion in the broader legal community about the constitutionality or asserted constitutionality of this piece of legislation. If it is proven that is not constitutional at some point because of a challenge to the High Court, then it will be in this government's hands to come up with a response which means that we make the effective changes that we are requiring to be made here today and ensure they are constitutionally valid. I am not a lawyer, let alone a constitutional lawyer, so I would not argue that I have any particular expertise. But I have been reading the commentary of many eminent jurists around this country, and it is clear there is a matter of grave contention still to be debated.

We do live in a wonderful place and it is important that we secure this country from the ravages of sectarian violence and terrorism that are so evident as we speak. I am mindful in having this discussion that people like me in the late 1960s and 1970s were involved in supporting organisations like the African National Congress, raising money for the ANC, which was fighting a guerilla war in South Africa, and later, in supporting FALINTIL, the opposition guerilla movement in Timor-Leste. So we need to be very conscious that, in having these discussions, we have a history here in this place, and indeed across this country, of working with resistance movements around the world who have been involved in seeking liberation.

But we are in an entirely different context today, because we are not talking about a liberation movement; what we are talking about are the evils of people who do not recognise international law, do not recognise sovereign boundaries and do not recognise the precepts, in the case of ISIS, of the religious doctrine that they are supposedly advocating. So it is important that we build into our laws protections for Australians from Australian citizens who are involved in potential acts of war against this country, fighting for a declared terrorist organisation involved in murder and the horrors that we have seen depicted on our screens over recent months and years. If there are Australians who have Australian citizenship and are not prepared to accept their responsibilities as Australian citizens for the protection of themselves, for us and for their families, from the violence which they seek to perpetrate elsewhere, then let it be on their heads, because we cannot countenance the irrational behaviour of those who perpetrate such acts of bigotry and violence. I am thankful to the member for Fowler, who, in his contribution, told us that, as of June this year, there were 120 Australians fighting overseas and 160 Australians supporting those who fought. Thirty Australians who were involved in these dreadful acts have returned to Australia, and eight of those have now been convicted of terrorist acts.

Removing one's citizenship is something you would think an individual would regard as important. We have a lovely multicultural country. We are proudly, arguably, the site of the most successful experiment in multiculturalism in the world, and that has been a conscious effort of engaging community with community, religion with religion, with respect for cultural diversity, and understanding nevertheless that, once all those of different nationalities who have come to this great country of ours over recent years step up to swear that oath of citizenship, they have an obligation which will only be removed now by them acting as terrorists in the way in which this bill describes. It seems to me that all Australians should have confidence in the intention of this parliament, in a bipartisan way, to protect all Australians from the stupidity and the violence that has been perpetrated on so many externally to this country. In my family, my partner Elizabeth and our four children all have dual nationality and they are proud of it, as they should be. Every Australian who holds dual citizenship should be proud of that dual citizenship, understanding how important their country of origin and their heritage are to them, their families and the community.

When we are making these decisions here, we do so with a heavy obligation for all Australians, regardless of where they live and regardless of whether or not they are dual citizens. Every Australian needs to understand and comprehend that the intention of this legislation is for the protection of the rights of all Australians—to understand our human rights obligations under international law, to understand the rights of appeal that exist in this legislation for those who are found to have offended and to understand that, as a result of the 26 recommendations of the joint committee, heavy constraints have been put on the original legislation. We can have confidence moving forward that this has been done in a strongly bipartisan way for the best of intentions. The only issue arising ultimately will be whether or not the legislation, if challenged in the High Court, holds up to judicial scrutiny.