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Interview: Bret Walker SC -

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STEVE CANNANE, PRESENTER: Well, today we saw another major announcement on national security. Yesterday was the creation of a new anti-terrorism coordinator: today, proposed changes to citizenship laws.

TONY ABBOTT, PRIME MINISTER: We will be legislating within a few weeks to strip dual citizens involved in terrorism of their Australian citizenship.

The Prime Minister says at least 100 Australians are currently fighting for extremist groups in the Middle East and his Government is committed to tackling the threat from terrorism.

TONY ABBOTT: We had an excellent discussion in the party room about this this morning; a very full discussion in the party room this morning. Everyone who spoke supported the Government's intentions.

STEVE CANNANE: But it was a different story in the Cabinet room last night, when six senior ministers reportedly spoke out against a plan to strip some Australian sole nationals of their citizenship.

A leak in the Fairfax press claimed Julie Bishop, Malcolm Turnbull, Christopher Pyne, Kevin Andrews, Barnaby Joyce and George Brandis all opposed the plan.

Senator Brandis reportedly said, "I am the Attorney-General. It is my job to stand for the rule of law."

In the end, that proposal was shelved but the plan to strip dual nationals of their Australian citizenship was approved - albeit with some safeguards.

TONY ABBOTT: I want to stress that we will be ensuring that, as far as we can humanly make it, no-one becomes stateless and any decision by the Minister to strip someone of their citizenship, to strip a dual national of Australian citizenship, will be subject to judicial review.

STEVE CANNANE: To discuss the implications of these proposed laws I'm joined in our Melbourne studio by barrister Bret Walker SC. He's the former independent monitor of national security legislation.

Bret Walker, welcome back to Lateline.

BRET WALKER SC, FMR NATIONAL SECURITY MONITOR: Good evening.

STEVE CANNANE: What's your reaction to the announcement today that the Immigration Minister could soon have the power to cancel the citizenship of a dual national, even if that person has no conviction for terrorism?

BRET WALKER: Well, not surprisingly, the devil is in the detail. Most people, I think, would prefer to see conviction as the precondition for such a drastic severance of the relationship between a person and this country.

Now, this country will often be the territory in which all that person's main connections, personal connections are held. So we're talking about a very profound alteration in the relationship between a person and Australia.

If you're not going to have conviction, which other laws in relation to citizenship use as the trigger for revocation, then you'd better have judicial review that permits a judge on evidence to determine whether there has been involvement in terrorism. That was the PM's phrase: "involvement in terrorism".

You'd better have a judge deciding that and not just a ministerial opinion, based upon unexaminable secret intelligence.

STEVE CANNANE: All right. We'll come to judicial review in a moment. But is a conviction always possible? The Minister, Peter Dutton, made the point today that if someone is off fighting in Syria it's very difficult to gather sufficient evidence to satisfy an Australian court beyond reasonable doubt. Does he have a fair point there?

BRET WALKER: No. This is a very bad point. Ministers should be discouraged from thinking that they are in a position to provide something as good or better than a conviction on the basis of unexaminable intelligence.

Call me old-fashioned. If you're going to accuse somebody of the kind of horrendous murder, or conspiracy to murder, that is involved in the kind of terrorism offences that we're all concerned about, then I'd like to see something in the nature of a criminal trial.

That is not conducted by a minister leafing through a manila folder with intelligence that will never be presented in a court of law to be tested. It is very, very retrograde for a minister to think that he or she is in any position to emulate a court of law.

STEVE CANNANE: Well, the Prime Minister did confirm today that there is an avenue for judicial appeal against any decision to strip citizenship if this law does pass and that would apparently start in the Administrative Appeals Tribunal. Is that a good enough check and balance?

BRET WALKER: No, almost certainly not. However, I've got to say: I entirely welcome the comprehensive terms in which the Prime Minster talked about the adequacy of judicial review to the utmost extent possible. That's a very good approach by the Prime Minister, to be applauded.

It will involve, of course, the idea of involvement in terrorism being a fact to be found ultimately by a court. Now, that's why I started by saying, "The devil's in the detail." Let's see whether the law actually sets that up.

What I don't want is this to be done in an administrative tribunal - the AAT - where there are only then reviews on matters of law to the judiciary. The judiciary is the place where, preferably with a jury for a conviction, the facts of terrorist involvement should be tested.

STEVE CANNANE: Now, presumably the Minister would be making any decisions based on intelligence. Now, would the alleged perpetrator be able to access that intelligence for the purpose of an appeal? Because that could, it not, breach national security and make it difficult for them to appeal that decision?

BRET WALKER: Well, that's precisely the problem. And this is a dilemma - a real wicked problem, as the language has it - that needs to be considered very carefully on both sides, that is: those for and against these laws.

I'm one of those who think that the importance of secrecy and the preservation of secret methods in the gathering and collation of intelligence is so important for national security that we must not do anything to endanger it.

On the other hand, as a practising lawyer and from my experience as monitor, I regard the notion that everyone charged or alleged to have done something terrible - leading to revocation of citizenship in this case - should have a reasonable opportunity to confront and rebut those charges.

This is a dilemma that will not be able to be solved by any of the laws with which I'm familiar, which presently exist in relation to the guarding of secret intelligence.

STEVE CANNANE: And we've seen a precedent with this already in recent years in Australia, haven't we, with asylum seekers who have been detained in detention because they haven't been given an ASIO clearance? And they haven't been able to access that intelligence to counter those arguments?

BRET WALKER: Yes. The same thing is also true with passport cancellations, which are a very important and informative area that we've already got experience in.

The fact is that there are terrible dilemmas for those who care about fair process and also care about secret intelligence - and I care about both. It's a terrible dilemma to pose this notion that we are going to actually have due process, judicial review of the cancellation of a citizenship - about as profound an alteration of a relationship as you can find between a person and a nation - on the basis of secret intelligence.

It's not something which I think should be lightly entered into. The devil is in the detail.

STEVE CANNANE: Well, what is your view on intelligence as evidence?

BRET WALKER: Well, some intelligence that I've seen - and I can't tell you about it - some intelligence I've seen is extremely good in evidentiary terms. Most intelligence doesn't pretend to be evidence; couldn't possibly attain the evidence and would often be, for example, multiple levels of hearsay. None the worse, sometimes, as intelligence, but absolutely unusable as evidence.

Now, as I say: I greatly value the intelligence, some of which - much of which - is public access but some of which is secret. And I greatly value the terrific work done by our agencies in terms of its collection and analysis.

But to compare that, even for a moment, with what happens in a court setting about to find facts, either before a jury for conviction or before a judge to ascertain whether somebody has committed a terrorist offence: it's absurd. They are chalk and cheese.

STEVE CANNANE: You have previously recommended that the Government consider stripping citizenship under certain circumstances. You obviously think that some incarnation of this policy is worth looking at?

BRET WALKER: I think this is a very good idea for the Government to be looking at this matter.

But I stress: there are good ways of doing it and bad ways of doing it. And what we are talking about doing in this area is so dangerously liable to arouse resentment of a kind which could add to what's called "radicalisation" - ridiculous word for people determining to become wicked and do wicked things - that is so dangerous that we really should take great care to do this properly.

Now, one way to do it properly is to ensure that before you treat people so drastically, so seriously, as to strip them of their citizenship, that in my view we should have something which is the functional equivalent of a conviction - preferably a conviction.

STEVE CANNANE: What did you make of reports today that the Prime Minister and the Immigration Minister wanted to go even further and have the powers to strip citizenship from Australians who don't have dual citizenship?

BRET WALKER: Well, I think that that is really quite alarming. Now, it's not quite as bad as you've made it sound. That's not my criticism of your paraphrase; it's a fair - your paraphrase is a fair representation of the reports.

But as I understand, it the United Kingdom analogue to which they're referring is this notion that you can treat somebody as not about to become stateless if they've got the right, not yet exercised, to get citizenship somewhere else.

Practically speaking, of course, one would want to inquire: what kind of right is this, whereby I could insist on becoming, say, the citizen of Russia, notwithstanding that Australia has just very formally said that I should not be an Australian citizen anymore because I'm a terrorist?

I don't know whether, for example, there's any country - Russia or any other country - that will give me citizenship simply because I, say, have a birthright, even after I have been denounced as a terrorist elsewhere.

So there are practical problems about this and I think the Foreign Minister may well have, according to the reports of leaks from Cabinet, raised that very problem.

STEVE CANNANE: Bret Walker, we'll have to leave it there. Thanks very much for joining us.

BRET WALKER: Thank you.