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Parliamentary Joint Committee on Intelligence and Security - 10/08/2015 - Australian Citizenship Amendment (Allegiance to Australia) Bill 2015
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HOWELL, Mr John , Lawyer, Australian Human Rights Commission

TRIGGS, Professor Gillian, President, Australian Human Rights Commission

Evidence was taken via teleconference—

CHAIR: I now welcome representatives of the Australian Human Rights Commission, who are joining us via teleconference again. Thanks again for joining us, and apologies for the slight delay.

Mr DREYFUS: Thank you very much, Professor Triggs and Mr Howell for joining us again. On Wednesday, in relation to questions from Senator Bushby, you volunteered to have a look at how the possible review mechanisms might work. You said at page 18 of the Wednesday Hansard that you would go back and look at how the declaration would work, and Senator Bushby said that he would appreciate that. In effect, you took it on notice.

So, I have a mechanical question as to how that has gone and when you are going to be able to provide that further advice about the review mechanism, or judicial review mechanism or declaration mechanism to the committee?

Mr Howell : The commission intended to supply the response to those questions on notice by this Wednesday. That was the date which the committee secretariat had requested those for.

Mr DREYFUS: That is great—sorry, that is the left hand not knowing what the right hand is doing! I thank you very much for that.

In your submission, the Human Rights Commission discusses the impact of the exclusion of section 39 of the ASIO Act. I wonder if you could just tell us what the effect is of section 39 of the ASIO Act? And if the bill were to be amended so that there did need to be a formal security assessment, what impact do you think this might have on the operation of the bill in practice?

Mr Howell : The effect of the exclusion of section 39 of the ASIO Act means that administrative actions can be taken under the bill, if the bill is passed, without a formal ASIO security assessment being provided. That means, potentially, that an advice from ASIO which does not meet the same threshold could be relied upon.

There is also a subsequent effect insofar as security assessments as they relate to Australian citizens are reviewable by the appropriate division of the Administrative Appeals Tribunal. Excluding the operation of section 39 of the ASIO Act within this bill would have the effect that advice from ASIO would not be reviewable insofar as it were relied upon to cancel or revoke the citizenship of Australians.

Mr DREYFUS: How do you balance the potential need for swift action to be taken against individuals suspected of terrorism related conducted or terrorism related offences—that need—with the desirability of more complete evidence, such as a full ASIO security assessment?

Mr Howell : Perhaps Professor Triggs would like to add to this. Obviously, we acknowledge that there are circumstances when very rapid action is warranted. On the other hand, given the severity of the nature of the consequence—loss of citizenship—it is very important that those consequences are not visited upon people unless there is an adequate evidentiary basis. On the one hand, I am aware that security agencies can sometimes provide assessments very quickly. The commission is not in a position to say whether that would or would not always be possible. If that were a very real and pressing concern, then perhaps alternative mechanisms would have to be considered. For example, it might be a provisional suspension rather than a full cancellation. Events could be made absolute once a formal assessment was provided. As I say, the commission would not be able to really comment on the necessity for that type of extra measure, not knowing all the circumstances of the agencies that might be providing this advice.

Prof. Triggs : Could I just add that of course the implication of your question is important. There may be occasions when the minister has to act quickly. Of course we accept that there may be circumstances in which that is true. But what is worrying is that there is no process for ensuring that the evidence is of a credible nature to warrant even, for example, suspension—as distinct from cancellation—or automaticity. As you will know very well, Mr Dreyfus, it is quite possible to have a duty judge on a 24-hour process by which these matters» can be assessed independently as well as through the minister. I think these are the sorts of checks and balances that need to be in the legislation in order to meet the quite reasonable need to act quickly.

Mr DREYFUS: Thank you. At paragraph 35 of your submission you noted a number of consequences of loss of citizenship. There is one of those in particular that I want to ask you about. You said:

Loss of citizenship may also lead to loss of a passport, removal from the «electoral» roll and loss of entitlement to social security benefits.

Then you said:

It will change the activities that intelligence organisations such as ASIS and the ASD—

the Australian Signals Directorate—

can undertake with respect to a person.

Could you elaborate on what those changes are—that is, the changes to the activities that ASIS and ASD can undertake—and whether there are any human rights implications?

Mr Howell : I am probably not in a position to give a complete answer now. I can provide further detail with the written responses to other questions on notice, if that would be of assistance to the committee. The reference in the submission is a reference to some of the changes that were made in the previous suite of national security legislation last year. The functions of some of Australia's internationally operating intelligence agencies are, in general, restricted to investigating activities of non-Australian citizens. The ways in which they can proceed are more limited with respect to Australian citizens. For example, to carry out certain functions there might be a need for some ministerial approval if the target of that particular function is an Australian citizen. I am happy to revisit the legislation and provide a slightly more detailed response and advice if that would be of assistance.

Mr DREYFUS: We would appreciate that, Mr Howell. I will leave that for you to respond in writing and I will move on. Many of the submissions that the committee has received have expressed concern about the processes outlined in the bill, particularly the procedural fairness provisions—the relative absence of procedural fairness provisions is the way in which some submitters have put it. In your view, what are the key amendments that would strengthen the bill in this regard?

Prof. Triggs : We made a number of recommendations that you will see at paragraph 11. I think the key procedural safeguard would be that the notion of automaticity must be given some legal substance through a process, so that in fact it would not be automatic. There would have to be some process within the department, ultimately reviewable, that would measure the facts known to ASIO and the department against the criteria for loss or repudiation of citizenship, and a determination made. We believe that that determination should be through a proper judicial process with a judge or tribunal making the determination. So, in short, we are saying that the idea of automaticity is really inconsistent with the doctrine of separation of powers and the role of the judiciary in determining «matters» according to whether the facts trigger one of the consequences under the new bill.

Mr DREYFUS: I was interested in key propositions, so thank you, Professor Triggs. You comment that the deprivation of citizenship that this bill would introduce does not take into account the relative seriousness of the conduct in, for example, proposed section 33AA. It has been suggested by other submitters that revocation, or deprivation of citizenship, should only occur after a conviction for more serious offences that result in a penalty of 10 years jail or more. Would you consider reference to the actual sentence, as some submitters have referred to it, to be a more proportionate approach?

Mr Howell : That kind of a threshold sentence would certainly be a much stronger protection to ensure that only the most serious conduct was captured by the provisions of the bill. From a human rights law perspective it is not possible for us to say precisely what that threshold should be. Having some threshold would certainly be an improvement on the bill as it currently stands.

Prof. Triggs : While I would agree that the threshold, at that level, would make very clear the level of seriousness, I fear that it would not really get to the nub of the problem again. The real question is: have the acts been ones which threaten Australia and threaten Australians in a meaningful way. Frankly, I would think it much more important to give the reviewing body the discretion to determine whether this is a really serious matter or not. Certainly, the number of years as a maximum penalty would be an important guide, but I would be inclined not to use it as a benchmark and only as a guide.

Mr DREYFUS: Does that relate to one of your recommendations being that any decision or mechanism to deprive a person of citizenship should take into account the particular circumstances of the person and their conduct?

Prof. Triggs : Yes, that is exactly what I am getting to. As we have made a point in other contexts on the difficulty of mandatory sentencing provisions, the critical human rights perspective is that the circumstances of the individual should be considered by the determining body. That would inform my own view that an arbitrary number of years is not really entirely to the point.

Mr DREYFUS: Elsewhere in your recommendations you recommend that the phrase 'in the service of a declared terrorist organisation', which appears in proposed section 35(1)(b)(ii), should be defined. This is a submission that we have had, to like effect, from other submitters including UNICEF and the Law Council, to name a couple. What does the Human Rights Commission see as the key issues arising from the section in the bill, in its currently drafted form?

Prof. Triggs : We have not gone into any detail, as you will see from our submission on this point. The primary concern is the phrase is one that does not have any established jurisprudence. It is very unclear exactly what it means. It is not as simple, as you would appreciate, as saying 'whether one is part of the armed forces of a body'. This is the complexity of creating new laws that recognise that we do not have insignia for Army or hierarchies. We do not have that kind of clarity with an army. It is obvious that one has to come up with different tests for what can often be just singular actions. But I think 'in the service of' is a very broad term and, if it were to be retained, it would be helpful if it could be explained what exactly that means.

Mr DREYFUS: Thank you, Professor Triggs. At paragraph 43 in section 10 of your submission, on page 13, you have made submissions to this committee about the retrospectivity reference that the committee has been given, namely 'whether the proposed amendments relating to loss of citizenship as a result of criminal conviction should be made retrospective'. In particular, you have referred to article 15(1) of the International Covenant on Civil and Political Rights, to which Australia has acceded. You make a comment at paragraph 46 that the fact of the effect of a measure being a penalty is not determined by the way in which a state chooses to describe it. I just wonder if I could direct your attention to what was said in the second reading speech for this bill, where the following sentence appeared:

The intention of the changes is the protection of the community and the upholding of its values, rather than punishing people for terrorist or hostile acts.

Does the fact of the government having chosen to describe the intention of the bill in that manner alter the way in which the effect of the bill is to be considered for the purposes of article 15 of the International Covenant on Civil and Political Rights?

Mr Howell : I might start by talking about it in a domestic context. The way a court would approach questions of interpretation of what the intention of a statute is will be by construing the language of the statute, first and foremost, and that will be determinative. It is only if there is any uncertainty about that process that secondary materials would become relevant. The same would be true in the international sphere. Whether a particular measure is punitive in nature must be determined by looking at what the actual measure is, why it is being imposed and what the functioning of the regime is. That is how the true character of the measure would be determined.

Mr DREYFUS: You have drawn attention at paragraph 47 to a range of factors that would be relevant to determining the effect of the loss of citizenship. Is it the commission's view that it would be regarded as a penalty?

Prof. Triggs : I think our view is that this is a penalty.

Mr DREYFUS: I ask you then to turn to another matter, which is the effect of this bill in relation to Australia's international obligations to children. Are you able to explain why it is that you consider this bill does not meet Australia's international obligations to children?

Prof. Triggs : As you will know, there are very special provisions under the Convention on the Rights of the Child that are listed in the submission. I think our feeling is that children will have their citizenship cancelled in the same way as an adult, but, at least by reference to the Convention on the Rights of the Child, in a sense higher standards apply on the basis of the best interests of that child. Loss of citizenship as a penalty, which we have already stated, appears to be even more arbitrary in relation to a child than it is in relation to an adult. So, when one goes through these various provisions of the convention, it seems that there are even more powerful arguments in relation to a child than there would be in relation to an adult.

Mr Howell : Perhaps I could quickly add to that. We have focused particularly on the core obligation that, in any action being taken in relation to a child, the child's best interests must be a primary consideration. Given that, in respect of loss of citizenship by conduct, the loss occurs automatically, there is simply no place in the regime that would be established by this bill for the best interests of the child to be taken into account.

Prof Triggs : Adding to that is the other point, of course—and we have stated it; I am really stating what is already there—that a child is considerably less culpable to the extent that fault or culpability is a relevant consideration. And of course it should be in relation to an adult; this really does not apply to children.

Mr DREYFUS: You have set out article 3 of the Convention on the Rights of the Child, which requires:

… the best interests of the child shall be a primary consideration

in all actions concerning children. I wonder if you could elaborate on the points that you made at paragraph 41 of your submission, as to the «matters that would have to be considered in looking at the 'best interests'? In particular, what changes would you recommend to the bill that address these issues of how to consider the best interests of the child?

Prof Triggs : Assuming that there were processes and that this were not automatic, one would hope that in considering whether loss of citizenship were to be the ultimate penalty by that determinative body that that body would be able to receive evidence in relation to the interests of the child affected. There might be an advocate for the child, or the determining authority would be able to look at special evidence that related to that child as distinct from the adult.

In other words we are really asking for a process, and that during that process the interests of the child would be taken into account as a primary consideration. For example, we know that the High Court has talked about this in the Teoh case; how it is that administering officials—government officials—would view the particular circumstances of the child and how that child would be affected by loss of citizenship. We have seen dramatic instances of children being affected by their parents' decisions very much in the media already.

Mr DREYFUS: In section 11 of your submission you have noted in a very shorthand way—if I can say so—differences from other countries with the proposed regime in this bill. I just want to check that there are in fact differences. You have said, first of all:

The United States provides for renunciation of citizenship; however, it is necessary that a person intend to renounce their citizenship.

Under that kind of regime—and I think you referred to the notable US Supreme Court decision in Vance vs Terrazas—there is no part of intention at the subjective level that is required to be found in this bill, is there?

Prof Triggs : No, not at all. This section, as you said, has been done in a very brief way, and if some comparative work were helpful we would certainly be happy to look at it in more detail. But we have certainly been struck by the United States provisions, which set out quite a comprehensive list of acts which will constitute the renunciation. But as you know, in the Vance decision the Supreme Court went further than the list and said that more was required, and that a full—presumably subjective—intent is required before that renunciation can be determined against somebody. That really should be a pointer by comparison with the bill that you are considering, because there is no such intent required insofar as can be discerned from the bill. I think it unlikely that any court would ever inject a subjective intent into this legislation, but that of course is a matter for a court in interpreting whatever language of the bill emerges.

Mr DREYFUS: You have noted the different path the United Kingdom has gone down, but in relation to Canada you have said:

Canada allows for revocation of citizenship for persons convicted of certain offences. However, account is taken of the severity of the offending. Affected persons are informed of the grounds of the decision and allowed make submissions. Avenues of appeal are available.

Are there any parts of the Canadian regime that might be adopted, to some advantage, in any Australian regime of revocation of Australian citizenship?

Prof. Triggs : This model, along with the others, should be looked at for comparative purposes and to establish a model. Obviously, with this model, the determining body would be looking at how serious the act was, which is something we just discussed a few moments ago. Importantly, they are to be informed of the grounds of the decision and they have a capacity both to make submissions and to have an appeal. That is a model that Australia should look at as being a fair one that at least responds to the human-rights concerns and the seriousness of loss of citizenship. Clearly, you can see, even from these very brief descriptions of other jurisdictions, comparable jurisdictions, that the models and the requirements are significantly more compliant with basic human-rights standards.

Mr DREYFUS: Finally, I want to ask you about something that appears in the statement of compatibility with human rights in the explanatory memorandum. It is at page 32 of the explanatory memorandum. The bill provides, in effect, that a dual national who engages in certain conduct will be held to have repudiated their allegiance to Australia—whereas sole nationals who engage in identical conduct will not. We see in the statement of compatibility with human rights, referring to article 26 of the International Covenant on Civil and Political Rights, at paragraph 29, the statement explains this as 'differentiation' and therefore not a breach of the human right of equality before the law, which is what article 26 of the covenant is directed to. Does the commission agree with this characterisation of the application of the bill to dual nationals as 'differentiation'?

Mr Howell : In so far as 'to differentiate' is automatically taken to be non-discrimination, I do not think it is a proposition we, respectfully, could agree with. Discrimination involves treating people differently. The question of whether there is discrimination will depend on whether there is some justifiable reason for treating people differently. With respect to this particular aspect of the bill, there has been a little bit of commentary that I have seen. It is certainly arguable that this type of distinction may breach article 26 of the covenant, but we are in a situation where there is also an obligation that Australia has to avoid rendering sole nationals stateless by depriving them of their citizenship. Insofar as the question is, 'Is this a mere differentiation and therefore not discrimination?' that is, perhaps, with respect, a slightly simplistic analysis.

Prof. Triggs : But there could be some complications, in terms of interpreting article 26, because discrimination is prohibited on specified grounds. One of those grounds is status and you could say that this is a discrimination on the ground of status as a dual national as distinct from a single national. The question mark that I would have in my mind, and I do not know the answer, is: would an international tribunal, for example, say that you would be entitled to make the differentiation because you are actually protecting the rights of a single national as distinct from a dual national? I am not quite sure what the answer to that is. I do think this is not really relevant to the core question, here, which is that you are taking away citizenship from a particular class of persons and that may not be justifiable in all the circumstances.

Mr DREYFUS: Can I explore that a little bit with you, because it is a particularly difficult question? Let us just look at the extreme case of someone who goes to fight with a proscribed terrorist organisation in Syria and commits dreadful acts of terrorism. Australia is not free to act against that person in relation to their citizenship if they are a sole citizen, because of our obligation under the Convention on the Reduction of Statelessness. So I would just ask you to accept that. With that limitation in mind, that it is not open to Australia to pursue revocation of citizenship for a sole citizen, isn't Australia nevertheless free to apply its own determination of our own national circumstances, our own national security setting and our own view of citizenship and nevertheless take this legislative action against dual citizens?

Prof. Triggs : Yes. That is why I feel that, if an international tribunal were to be asked this question, I think the tribunal would be very likely to say that you not have exercised the sovereign power to take away citizenship in relation to somebody who would be thereby made stateless. Therefore, the only option Australia would have to exercise its sovereignty would be to take away citizenship from somebody who is a dual national. It is entirely likely that international jurisprudence would accept the power of the state to act in this apparently differentiating way but in order to preserve the obligation not to be stateless. So I think your analysis is correct in that international law would not stand against the sovereign right of states to withdraw citizenship. But the question then is: in what circumstances can that citizenship be withdrawn in a way that is consistent with international legal standards and the rule of law domestically?

Mr DREYFUS: Thanks very much, Professor Triggs. That concludes my questions. Thank you, Mr Howell, and we look forward to receiving the piece of additional work that is going to come later in the week.

CHAIR: Thank you for giving evidence at the hearing tonight. You will be sent a copy of the transcript of your evidence, to which you may suggest corrections. If you have been asked to provide any additional material, please forward this to the secretariat as soon as possible. If the committee has any further questions, the secretariat will write to you.

Resolved that these proceedings be published.

Committee adjourned at 18:48