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Parliamentary Joint Committee on Intelligence and Security
05/08/2015
Australian Citizenship Amendment (Allegiance to Australia) Bill 2015

HOWELL, Mr John, Lawyer, Australian Human Rights Commission

TRIGGS, Professor Gillian, President, Australian Human Rights Commission

[9:04]

CHAIR: I welcome representatives of the Australian Human Rights Commission. Although the committee does not require you to give evidence on oath, I remind witnesses that this hearing is a legal proceeding of parliament and warrants the same respect as proceedings of the House itself. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament. The evidence given today will be recorded by Hansard. Do you wish to make some introductory remarks before we proceed to questions?

Prof. Triggs : Thank you very much. Yes, I would like to make some preliminary remarks, if I may, that supplement the submission that we have already given to the joint committee. First I want to thank you for the opportunity to speak to you this morning and to make the central point that the commission acknowledges the critical importance of ensuring that appropriate measures are taken to protect national security and to protect the human rights of Australian citizens. That includes protecting the community from terrorism. However, it is not claimed that the bill is necessarily or even primarily intended to achieve these goals.

The primary purpose of the bill, expressed in section 4 of the bill itself, is to recognise 'that Australian citizenship is a common bond' and that people can by their conduct 'demonstrate that they have severed that bond'. The commission considers that this is not an adequate justification for stripping Australians of their citizenship and the consequent limitations on human rights that that will entail. To the extent that the bill is intended to protect national security it is not clear and has not been explained why the current national security legislation is not adequate to achieve the function. For these reasons we believe that the bill is significantly flawed and we oppose the passage of the bill.

If the bill were passed it would lead to the loss of citizenship in several circumstances. One is when an Australian engages in certain conduct. That includes activities relating to terrorism and foreign incursions and recruitment. The conduct is defined by reference to the Criminal Code, but no criminal conviction is required to enliven the relevant provision. A second basis on which loss of citizenship will follow is when an Australian fights for or is in the service of a declared terrorist organisation. The third and perhaps the most problematic is when an Australian is convicted of a number of offences under the Criminal Code and the Crimes Act where some of these offences have a connection to terrorism but some do not.

In all cases the bill will lead to an automatic loss of citizenship of affected persons. No formal decision is required to cancel a person's citizenship. This is rather curious, because of course somebody somewhere in the system must make a link between the individual, their conduct and the effect of the proposed bill. So somewhere there will be a bureau officer who will be required to at least gather the information and set in train the process of recognising the automatic loss of citizenship. It is also troubling that a person would not have any right to have revocation of their citizenship reviewed. While the Minister for Immigration and Border Protection does have the power under this bill to exempt a person from operation of the provisions, the minister would not be required to consider exercising that power and, if he chose to do so, would not have to afford natural justice to a person who has lost their citizenship.

Obviously loss of citizenship is an extremely serious matter. It potentially affects a number of human rights protected under the various international treaties to which Australia is a party, including the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. Our written submission focuses on three key human rights: the right of Australians to enter and remain in their own country, in article 12(4) of the international covenant; the right not to be subject to retrospective increases in criminal penalties, which is in article 15 of that covenant; and, of course, the rights of the child, in particular to have their best interests taken into account, enshrined in article 3 of the Convention on the Rights of the Child. The bill is likely significantly to curtail a number of other human rights, including the right to family life and the right not to be detained arbitrarily.

We recognise, of course, that human rights are not absolute and that any limitation on these rights should not only be otherwise than arbitrary but also be lawful, necessary and proportionate. We consider that the limitations on rights that the bill would lead to fail these tests for a number of reasons. In particular, the individual circumstances of affected Australians would not be taken into account; a very wide range of conduct would lead to a loss of citizenship, from extremely serious matters to very minor ones, including of course damage to Commonwealth property; and there would be no adequate procedural safeguards or rights of judicial review. Importantly, as I said at the beginning, no adequate justification has been provided for the bill.

In summary, the commission do oppose the passage of the bill in its current form. If that recommendation from the commission is not accepted, there are a number of specific recommendations we have made that, we suggest, would limit the negative impact of the bill on the human rights of Australians.

That concludes my opening statement. I would be very pleased, along with my colleague, to answer any questions you might have.

CHAIR: Thank you. Do we have any questions?

Mr RUDDOCK: I have one simple question. Given the arguments you have put against the provisions in this legislation, it seems to me you should have also perhaps been arguing that the existing provisions in the act dealing with citizenship revocation should be repealed.

Prof. Triggs : No. It is not really the purpose of our submission to comment on existing laws when the purpose is to comment on the current laws and, in particular, the fact that this bill proposes that the loss of citizenship would be automatic, without criminal conviction, whereas of course under current law a conviction is required.

Mr RUDDOCK: So your view would be that these measures would be appropriate with some amendments, rather than that you oppose the bill in its entirety, as you appeared to be suggesting in your comments?

Prof. Triggs : No, in our submission it is very clear—and, I had hoped, in my comments—that we oppose the bill in its entirety. But we accept that the parliament may choose to accept the bill, so we suggest that, if it were to be passed, it would be necessary to protect human rights in the particular ways we have recommended.

Mr RUDDOCK: Well, that is exactly how I heard it. You are arguing against the bill in its entirety but you are not prepared to argue that provisions that achieve the same outcome for other purposes—in relation to fraud and people who are fighting in a foreign army against Australia—

Senator BUSHBY: Which is automatic.

Mr RUDDOCK: which can lead to deprivation—should be repealed. It seems extraordinary, I am sorry.

Prof. Triggs : We are not here today to talk about repealing current legislation; we are here to point out the flaws in the proposed bill.

Senator FAWCETT: Professor Triggs, I take you to your recommendation 2(c), where you say:

Loss of citizenship resulting from terrorist activities should only be possible in the most exceptional cases, for offences commensurate with serving in the armed forces of a state at war with the Commonwealth.

Could you expand on where you see that line being drawn, particularly in using that word 'commensurate'? The reality is that most armed forces have more people in logistics support than they do actually bearing arms. So, potentially, an Australian could be serving with the armed force of a foreign power by working as a clerk in an office, and you are quite comfortable with us revoking his or her citizenship. Where along the spectrum, then, does somebody who, in the name of a terrorist organisation, plans to blow up a football field or behead a policeman stand in comparison to that clerk?

Prof. Triggs : This is why we believe that there should be some form of appropriate decision-making authority that would be subject to review—because the test will always come back to the question of whether the penalty is both necessary and proportionate. If the protection of some form of judicial or administrative review is present, then it is possible to make the more nuanced judgements that would respond to the concerns that you have expressed—in other words, whether you are a clerk in an office or whether you are actively engaged in acts of terrorism.

Senator FAWCETT: But, to follow on from Mr Ruddock's point, from recommendation 2(c) you appear to be comfortable with the fact that the clerk can automatically have his citizenship revoked, but you are saying that is not suitable for somebody who plans to blow up the MCG.

Prof. Triggs : That is certainly not our intention. I do not know whether my colleague John has anything to add to that.

Mr Howell : I suppose there are a couple of things we might say there. The suggestion the commission is entirely comfortable with revocation of citizenship of somebody serving in a very minor clerking role in the armed forces of a country that may be at war with the Commonwealth is, I think, something that is not intended to be conveyed in the submission. The recommendation you have referred to, 2(c), is in the alternative to the primary recommendation that the bill not be passed. The intention there really is a way to ameliorate the impact of the bill and to tie the bill perhaps to some legitimate objective a bit more closely, noting that, as has already been noted by the committee, currently there is a provision in relation to revocation of citizenship for service in the armed forces of a foreign state. The intention here is to tighten the connection between serving in some terrorist organisation and making sure it is commensurate with the kind of obvious intention to do something which is contrary to the sovereign interests of Australia—so there has been some direct intention to attack Australia. It has been noted in a number of submissions that some of the terrorist offences that are included in the current bill do not have any necessary connection to Australia at all.

The other thing is to try and somehow limit the application of the provision, as Professor Triggs has said, to the most serious cases. That might be done in a number of ways. We talked about offences commensurate with serving in the armed forces of a state at war with the Commonwealth. Making sure that activities are commensurate with that might be done in a number of ways. For example, some other submissions I note have suggested that there be some sort of minimum period of imprisonment that somebody has been sentenced to and that, once that quite high threshold has been met, whatever that minimum is, then that would enliven a power to potentially revoke citizenship. But obviously that recommendation would still be subject to the other views of the commission about the necessity for a party to be informed of the decision, to be able to make submissions and for that decision to be reviewable.

Senator GALLAGHER: Thank you very much for your submission and for appearing today. We have just had UNICEF appear. Could you talk me through some of the concerns you have, in particular about how this bill relates to children?

Prof. Triggs : The way it works is that, where the parent's citizenship is automatically cancelled, so too is the child's. We would have the same concerns, of course, about the loss of citizenship for a child as an adult, but there are additional concerns, under the Convention on the Rights of the Child, which would protect that child's interests on the usual ground that the child's best interests should be taken into account. In other words, there may be many instances in which a child has been born and lives in Australia but the parent has been engaged in a terrorist activity or something defined within the bill and that child would suffer significantly as a consequence of loss of citizenship. That is our primary concern.

Senator GALLAGHER: This might sound like a strange question but, if the bill is inconsistent with our international obligations under conventions that we have signed, what is the consequence, if any, of that?

Prof. Triggs : The difficulty with the Convention on the Rights of the Child, for example, is that parliament has not enacted that convention into Australian domestic law. So you have an international legal system where the convention would be in breach, and relevant monitoring committees would look at these breaches, but, if the treaty has not been implemented as part of domestic law, the courts cannot apply the principles of that treaty in a decision in our national laws.

You might perhaps be familiar with the Teoh case, where the High Court said that public officials or government officials should at least take into account the commitments that Australia has accepted under the Convention on the Rights of the Child. The High Court has somewhat retreated from that position, but nonetheless it remains good law—that is, that it is a matter to be taken into account by courts in considering whether Australia is in compliance with our treaties or domestic law. The straightforward answer to your question is that this treaty is not part of our law, and therefore there are no direct consequences other than the persuasive influence of the international community. As the good citizen that Australia has traditionally been in the international environment, we normally abide by our international obligations.

Senator GALLAGHER: This might be outside of the scope of your responsibilities, but did the commission look at the constitutionality of the bill?

Prof. Triggs : No, that is not really a direct part of our mandate. Our job under our statute is to assess whether or not proposed legislation of this kind complies with the international treaties to which we are party and that are part of our mandate—in particular, the two conventions that I have mentioned along with anti-discrimination laws, of course, which are a matter of domestic law. For immediate purposes, it is not our mandatory obligation to look at constitutionality.

Senator GALLAGHER: Could you talk in relation to the concerns you have raised around procedural fairness. This has come up in a number of submissions—in fact, in all of them, I think—and we have heard about it from witnesses who have appeared already, and your submission goes to this. Can you expand further on your concerns around section 39 of the ASIO Act?

Prof. Triggs : As you will see in part 15 of our submission, we have been particularly concerned that section 39 would not apply in relation to the loss of citizenship provisions. Section 39 of the ASIO Act requires that a government agency cannot take a particular administrative action without first achieving a security assessment. But there is an exemption of ministerial decisions from section 39, and that of course creates a difficulty here because it means that, as the section will not apply, the minister can rely on the advice from ASIO informing a view that a person has lost their citizenship and that person then would not be able to have ASIO's opinion reviewed by the Administrative Appeals Tribunal. This is a very special exemption of Australian law—or the discretion of a minister, in this case—from the usual provision under ASIO. It means, of course, the minister does not have a formal security assessment and can both rely on the advice of ASIO without that assessment and can a form a view, presumably, on other grounds.

Mr DREYFUS: On this point on section 39 of the ASIO Act, it was suggested to us yesterday, from recollection, by the Australian Law Council that that might mean if there is to be the possibility of relying on preliminary or junior officer level advice in ASIO that, quite possibly, the chain of command at ASIO and the role of the director general are completely eliminated. Is that part of your concern?

Prof. Triggs : It potentially is. The difficulty—and I raised this earlier with regard to the whole point of automatic cancellation—is that somebody somewhere in ASIO, in the Department of Immigration or in the Prime Minister's department, will presumably be given information or will acquire information that suggests that the act has been enlivened by facts which fall within its terms. That will have an automatic effect, as we know. But the automaticity will not, in a sense, have a practical outcome until an officer somewhere in the system says, 'Well, the act has been activated, the conditions have been met and the automaticity provision comes into effect,' and then various individuals will presumably be advised that the passport should be cancelled, social security payments terminated and so on. One question to which we do not know the answer is: how will that happen and will it ever get to the most senior levels of either ASIO or the department? Will it happen at a much more junior level? There is no way of really knowing this. The bill is very curious in adopting this automaticity provision, without some kind of a statement as to how the practical consequences would flow from the act which complies or meets the standard definitions within the proposed legislation.

Senator GALLAGHER: In your opening statement, Professor Triggs, you made the comment that this bill is not clear in how it seeks to achieve the national security goals. In speaking about the purpose of the bill, you read out part of the EM which talks about the common bond et cetera. Could you expand a little bit more on that, particularly in relation to whether the bill, in your opinion, has a deterrent effect?

Prof. Triggs : To take your second point first: were this to be passed, I would think that a bill with such broad language, and the adoption of terms and phrases that we have never had in Australia before, will have a chilling effect. Presumably, people will be much more careful that they do not do anything which comes within the terms of the proposed bill, because so many millions of Australians could potentially be affected by this. So I think that it is at least rational to say that the current language and structure of the bill could easily have a chilling effect on people's behaviour. That may very well be what the government desires. But I think that needs to be spelled out properly to the public and spelled out in the bill itself. It is a worrying element that the language is so vague and ill-defined that many, many people with dual citizenship who have become Australians will want to measure or moderate their behaviour if they think that there is any chance that they are going to be caught by it. Again, it is always a question as to how much Australians are aware of legislation of this kind—although I think that this would presumably get a fair amount of publicity.

With regard to the first point that you made, I read out that the primary purpose of the bill in section 4 is to recognise that Australian citizenship is a common bond and that people can, by their conduct, demonstrate that they have severed that bond. That is the stated legislative purpose. It is extremely wide in its language and not something on which we have any juris prudence, case law, practice or understanding within the Australian community. I think that the danger is that this becomes so abstract and so broad that it is going to be extremely difficult to know how a court would actually apply it, if it were to do so, although, as we have already acknowledged, the loss would be automatic—presumably on the view of a departmental or an ASIO official—and not subject to review by the courts. So you have a combination of extremely wide language, novel in the Australian legal context, where the person affected would have almost no capacity to have it properly reviewed and challenged.

Senator GALLAGHER: When you talk about these ill-defined terms, you are referring to language like 'certain conduct incompatible with the shared values of the Australian community'?

Prof. Triggs : Yes.

Senator GALLAGHER: One that we looked at yesterday was the term under proposed new section 33AA(1), which says that a person will renounce their citizenship if the person acts inconsistently with their allegiance to Australia. Are you aware of whether any definition of that language exists?

Prof. Triggs : No, I am not, and again this is all new territory for Australian law. We have simply never adopted language of this kind. We have no precedence for understanding what it means. It is extremely vague and abstract in its ideas. These are the dangers of legislation of this kind. It would be much more important to be more specific as to what constitutes a breach or a severing of the bond or a renunciation of the bond. I know, for example, that American laws do give this much greater legal substance, and it might be that something could be learned by some comparative work to see where other countries consider that renunciation has taken place. But I do not think it is on something as vague as shared values.

Mr NIKOLIC: Could I give a more specific example about what might constitute severing that bond of allegiance. Would you consider a person who is a dual citizen, and who has a backpack bomb or who places a bomb in a car or who places a pipe bomb at a marathon, as severing that bond of allegiance? For example, in relation to the recent Lindt cafe event, would you consider that the perpetrator of that incident had severed their bond of allegiance to Australia?

Prof. Triggs : Of course, an answer to that must be that that would have to be one of the most obvious examples in which one could argue that that bond of allegiance has been broken, especially if it were done for ideological reasons that were attacking Australia and Australians. The key point is that, under the notion of the separation of powers, it is the function of the court to make determinations as to whether the act is one which would meet this legal definition and whether indeed the legislation is necessary and proportionate to achieve that objective. What I think about it is not to the point. The key point is that it is not for the executive to be passing laws along these lines and then making judgements as to whether the laws have been breached.

Of course, at the other end of the extreme would be one that I think others have put before me—the extreme instance of somebody damaging Commonwealth property by putting graffiti on it. That technically might come within the proposed bill, but I think any court, were it to have jurisdiction, would say that to lose citizenship for an offence of that kind would clearly not be proportionate and would not meet the severity of the penalty, being loss of citizenship. So the key point we are making is that there needs to be a proper administrative or impartial tribunal able to make these judgements as to whether or not the severity and proportionality elements are present.

Mr NIKOLIC: To go to the legal point you have just made, you have said that it should be a matter for the courts. Yet, to take a point raised earlier, citizenship can currently be removed, for example, for fraudulent misrepresentation on an application.

Mr DREYFUS: After conviction.

Mr NIKOLIC: Look—

Mr DREYFUS: Well, I need to have the question stated precisely—and the law stated precisely.

Mr NIKOLIC: Mr Dreyfus, this is probably the second or third occasion where you have interrupted questions. I have listened politely and patiently without interruption to your lengthy questions, even though I disagree with much of what you say. Would you kindly show me the same respect?

Mr DREYFUS: Through the chair, it is important that the questions be of assistance to the committee.

Mr NIKOLIC: I do not need you to tell me what my questions should be, Mr Dreyfus.

Mr DREYFUS: And a question which imprecisely states the effect of the bill—

Mr NIKOLIC: I do not need you to tell me what my questions should be.

Mr DREYFUS: No answer can assist the committee if Mr Nikolic has incorrectly stated the current law.

CHAIR: Let Mr Nikolic ask his questions. I am sure that the witnesses can respond to the questions. If they need to ask you for assistance, Mr Dreyfus, I am sure they will.

Mr NIKOLIC: Professor Triggs, citizenship can be declined or taken away if there is fraudulent misrepresentation on an application. But if I understand you correctly, you are saying that someone who makes a pledge to our country—and that pledge is, 'From this day forward 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,'—and then egregiously breaches that pledge as a dual citizen, your view is that that situation needs to have additional protections. Another example we might look at is that of Mr Khaled Sharrouf, who, after serving a period in jail for terrorism offences then went on to engage in further barbaric acts overseas—beheadings, executions, sexual slavery and the like.

Prof. Triggs : The key point under current law is that there must be a conviction, and that of course means that there must be compliance with the separation of powers. There must be a conviction by a court under proper rules of evidence and procedure. What is proposed in this bill is an automatic loss of citizenship without those protections. So of course you have put to me the most serious imaginable of cases, and one would imagine that were there to be a proper process then those would be grounds on which citizenship should be lost. What I am concerned about is that loss of citizenship could take place possibly with unsubstantiated evidence that is not subject to independent tribunal review. So when you state a hypothetical or a real situation, the question always comes back to whether or not the evidence supports those allegations—whether these things have actually occurred. Under any rule of law process, that is a matter for an independent tribunal, not for the executives—especially with regard to something as important as loss of citizenship.

Mr NIKOLIC: But under the existing section 35 it is automatic, and what this bill purports to do is to expand fighting for an enemy against Australia to incorporate non-state actors. Could you tell me: how is that different?

Prof. Triggs : It is obviously very important that the terrorist legislation be brought up to date. The current law is very much couched in the terms of armies and states fighting against each other. We know the reality of modern conflict is not state actors, and we can of course see the good sense in bringing up to date our counterterrorism legislation in order to take account of the fact that we have got people who are non-state actors who are carrying out acts of this kind. We have no difficulty with legislation extending to people of that kind. The difficulty is whether there is a proper process for determining that.

With regard to the fraudulent application cases, the minister has a discretion and I believe that there are processes to review whether that discretion has been operating according to the rule of law. But here, what has been proposed in the bill is that the loss of citizenship will be absolutely automatic, without the interplay of the minister's discretion. My colleague, John, may have something to add to that.

Mr Howell : With respect to the question about the current provisions relating to loss of citizenship and service in the armed forces and states at war with Australia, I might come back to my remarks earlier that, in the first instance, as Professor Triggs said, we have not specifically addressed the current law in this submission, and I do not think our current submission can be taken as saying that we fully support the current law; it is a matter we have not fully considered. The second is that, in current section 35 there is at least a necessary nexus between acting in the armed forces or a state of war with the Commonwealth and repudiation of sovereignty or something that is perhaps directed directly at the sovereign interests of Australia, whereas there is no necessary nexus being in the service of a declared terrorist organisation, because, as a number of submissions pointed out, there is no necessary nexus between some currently recognised terrorist organisations, however, serious and abhorrent conduct may be, and the sovereign interests of Australia, because there is no necessary nexus with that terrorist organisation undertaking, under the bill, any activities that are actually directed against Australia or Australian sovereignty. They may be acting in foreign locations, potentially against other terrorist organisations. Some of the submissions have pointed out that, in some circumstances, it is conceivable that some of these terrorist organisations may be undertaking activities that are consistent with Australia's sovereign interests. That brings us back to the point which Professor Triggs has made.

Mr NIKOLIC: Sorry. Could you just explain to me what terrorist acts might be consistent with Australia's interests?

Mr Howell : Some of the activities which might potentially be caught by this bill would include organisations fighting in foreign jurisdictions. There were some terrorist organisations—again, it has been pointed in some of the other submissions—that were, for example, fighting against ISIS in the Middle East. When someone is fighting for, for example, Kurdish forces fighting against ISIS, they would be affected in exactly the same way as somebody who was fighting for ISIS. It still does not distinguish between them. That comes back to that—

Mr NIKOLIC: Excuse me—pardon me for interrupting—but the bill does have the ability of the minister to announce a subset of the current declared organisations. It does provide that discretion. It does not simply say that all declared organisations currently by the AG translate to this bill. It makes specific provision for the minister to declare a subset of that list should he wish to do so.

Mr Howell : I take that point. I am not sure that it would necessarily be a subset of the currently listed terrorist organisations. I am not sure that is clear on the face of this bill. It seems to introduce a whole new power for the Minister for Immigration and Border Protection to declare terrorist organisations. It is true that this provision would only relate to declared organisations, but those declarations would, again, be a matter purely for executive discretion, which comes back to questions about appropriate roles for the executive and independent oversight guaranteeing that the provisions only apply to people it should really apply to and that there are guarantees of their human rights.

Mr NIKOLIC: Going to the consequences of loss of citizenship, which is a feature of the bill and your comments this morning. You talk about the arbitrary and discriminative effects of loss of citizenship and you mention, at paragraph 33 and 35, interfering with family life, losing passports, removal from the electoral roll, losing entitlement to social security benefits—a range of extensive effects that you say interfere with the human rights of these people. I do not see the same articulation in your submission about the effects of the terrorist acts—the conduct in this bill of engaging in international terrorism, using explosives or lethal devices and so on, and there are the arbitrary and indiscriminate effects of those things on the victims of terrorist acts. If there is, could you point me to it and, if there is not, what do you have to say about the human rights of the victims of the sort of conduct and offences that are captured by this bill?

Prof. Triggs : Perhaps I could answer that by saying that, of course, terrorist acts would have to be one of the most serious instances of breaches of human rights. That is very clear. The concern that we have at the Human Rights Commission is that, were citizenship to be automatically lost, that decision is one that is made on the basis of evidence by an impartial tribunal, or it is at least reviewable by an impartial tribunal of some kind. We are not of course denying the importance of the need to balance loss of citizenship with the egregious nature of terrorist acts of the kind that you described. That is clear and it is a given. The question is whether or not it is appropriate to use the penalty of loss of citizenship without proper judicial or administrative processes to ensure that the evidence upon which that loss of citizenship is based is accurate and fair.

Mr NIKOLIC: How do you then deal with the evidentiary requirement in this bill? The Lindt café siege, to use the previous example, was I think fairly straightforward for police and forensic agencies to collect a comprehensive brief of evidence. How do you prepare a comprehensive brief of evidence in ISIL-held areas in Al-Raqqa province and Mosul to satisfy the legal threshold that you describe?

Prof. Triggs : It is obviously a great deal more difficult to do that with any accuracy. That, of course, should set off the warning bells as to whether or not one should use a series of penalties to block citizenship in an environment where it is extremely difficult to get accurate information or evidence. I can accept, of course, that it is not going to be easy to get the kind of high-level evidence that one would require in a criminal trial in Australia, for example, in cases of acts of a terrorist nature broadly speaking taking place overseas. I think it is not at all unreasonable to have a process by which what evidence is avail is properly assessed by ASIO and is then subject to some impartial view as to whether or not it might be appropriate, at least at a temporary level, to suspend somebody's citizenship on the grounds of what appears to be appropriate evidence that they committed these acts. But the way I am describing this sets up a proper rule of law based process even if the standard of proof were somewhat lower, for temporary purposes. At least you would have some form of process for determining whether or not loss of citizenship should follow. The bill at the moment does nothing of that kind. It is simply automatic presumably on the basis of somebody in the department believing that they have information which would support the allegations of an act of terrorism. That is the problem we are primarily concerned with at the Human Rights Commission.

Mr NIKOLIC: So you would agree with Mr Dreyfus that we should bring them home and, if we cannot, then we do nothing unless that evidentiary hurdle that you mention—

Mr DREYFUS: Chair, I would ask you to intervene on that question. That is a misstatement of my position. Not only that but, as Mr Nikolic should be aware, I have actually corrected it in the chamber of the House of Representatives twice.

Mr NIKOLIC: I am just repeating the public transcript of your position.

Mr DREYFUS: No. Mr Nikolic is repeating the misstatements of the Prime Minister. It is quite an important matter and I will not have, either in this committee in its proceedings or in the chamber, repetition of false statements made first by the Prime Minister. They are false.

Mr NIKOLIC: Thank you for yet another Shakespearean soliloquy, Mr Dreyfus. Professor Triggs, if I could go back to my—

Mr DREYFUS: With your assistance, Chair, this continuing abuse from a fellow member of the committee does not assist in the orderly conduct of this committee's hearings. Mr Nikolic persists in rudeness.

CHAIR: We will continue with the questioning, thank you, Mr Nikolic.

Mr NIKOLIC: Professor Triggs, is it your submission therefore that unless, using the example I used before, Mr Khaled Sharrouf can be brought back to Australia and a sufficient evidentiary basis produced for the courts, that we then do not proceed? You have acknowledged the difficulties of collecting that evidentiary basis in places like Al-Raqqa province and Mosul. If you do not think he needs to be brought back, what alternative would you propose?

Prof. Triggs : With respect, it is not my job to be making legislative proposals as to how we handle this problem. It is my job to call attention to where the proposed bill will or is likely to breach fundamental human rights. It is clearly a practical problem and I am very sympathetic to this. Let us take, for example, ASIO or a department of immigration official who has some evidence about a person who is committing offences that at least are on the more serious scale of a terrorist act, as distinct from damaging Commonwealth property. Obviously, that is a problem in its own. But assuming that there were evidence for a Commonwealth official of some kind to say, 'This person is operating in Syria; we think their acts constitute a trigger for automatic loss of citizenship, and we don't want to let them back into Australia,' that is where it is very difficult. It might be that we could set up some form of judicial review for those kinds of cases to work with ASIO and the department to see whether there is credible evidence that meets any kind of basic rule of law standard and, maybe, to make a decision that the person will be blocked and not allowed into the country at all. Or it might be felt that it was appropriate to allow that person to return but that there would then be a proper process to determine whether the evidence brought against them was fair or not. That is a rule-of-law approach to the problem. The notion of automaticity, where there is no capacity whatever to make a judgement, is seriously in breach of the rule of law and in breach of our human rights international obligation.

Senator BUSHBY: A lot of what I was going to ask has been covered by questions from Mr Nikolic, but I still want to pursue it a little bit further. You were just talking then about proper processes. What, in your view, is a proper process? Would it involve public scrutiny? Our intelligence and security agencies have the ability to gather very clear and direct evidence about activities of particular people from time to time, a lot of which is based on information sourced from informants and other activities that they do. None of this information could be brought forward in a public forum without risk of compromising informants and agents. My concern is: as clear and as direct as that evidence may be that somebody is involved in activities that demonstrates a renunciation of their allegiance to Australia, it would be very difficult to present that in a normal court or in any other public tribunal. How would you deal with that?

Prof. Triggs : Firstly, it should be acknowledged that we currently have an obligation that there must be some form of security assessment from ASIO to a Commonwealth agency before it takes administrative action on current law. That is the current position. That, presumably, is not publicly available, but it does qualify or moderate the ability of a Commonwealth agency to act. Where ASIO has to have a proper assessment, that seems, at least, some form of process. To try to answer your question, I think it is quite acceptable that evidence of this kind could be taken in camera. It will be possible to set up some form of independent monitor or to go straight to a judge on 24-hours duty to review the strength of the evidence in camera. With proper process of that kind—and there are various ways of doing it—there is nothing unusual of course about going to the duty judge to ask that judge if there appears to be a reasonable case on the evidence produced by ASIO. It can all be done without public scrutiny, but it can be done, at least, by an independent member of the judiciary or some other independent monitor. There are various ways of achieving this outcome, but at least it will provide a measure of comfort that this is not simply the view of, let us say, a mid-level official who has operated on the basis of evidence that may or may not be compelling.

Senator BUSHBY: There is an assumption there that a minister would make the declaration based on evidence from some mid-level official rather than a sound brief that has been presented to them, which I think is not necessarily a correct assumption. Could such a process that you are recommending be held ex parte?

Prof. Triggs : I think it probably could and in the circumstances may have to be. Ideally, you want the parties to be informed and properly advised by their lawyers, but there may be circumstances in terms of national security where you would say, 'That's not appropriate' and it could be without the presence of the parties. I think you are raising important questions that could be explored more fully so that, ultimately, some proposals could be put up to provide the process that we think is so important here at the commission.

Senator BUSHBY: I have a further question along those lines. If such a process as you are proposing was held and was held ex parte, would the person who was subject to that, if they lost their citizenship, still have the right of appeal that currently is proposed?

Prof. Triggs : I think there should be right of review and appeal—

Senator BUSHBY: Given they have already had a process.

Prof. Triggs : That is obviously crucial. I think we should also explore the possibility of a suspension rather than termination to give relevant parties an opportunity to put their case. There are very, very many ways in which this could be done that are more consistent with the rule of law.

Senator GALLAGHER: Professor Triggs, yesterday we had some witnesses who came and talked about the impact that this bill, if passed, could have in terms of social cohesion. They were representing the Federation of Ethnic Communities' Councils across Australia, and I think a further witness ran through a scenario of two Australians engaging in identical conduct: one could end up having their citizenship revoked; the other, a sole national, presumably would follow the path of, say, criminal charges and potentially, depending on the conduct, have a range of sentences imposed, whether it be a custodial sentence or something more akin to a good behaviour bond. Has the Human Rights Commission got a view on that—the differential between a dual national versus a sole national, say, for engaging in identical behaviour?

Prof. Triggs : We have not addressed that with this submission, but it is certainly something we would be happy to look at. Obviously, this bill has been drafted to exclude the problem of a person with only one nationality. This is designed to deal exclusively with dual nationals, but I think there will be of course very significant differences then in the treatment of the two citizenship positions. I think it is obviously a question to be asked—in other words, is this bill really getting to the nub of the problem? What are we really trying to protect against? The explanatory memorandum does not really make this at all clear. As I have said, many of the offences that would attract the provisions of the bill are not related in any way to terrorism. I think all that needs to be thought through. Obviously, the bill is designed not to attract the criticism that it would breach the statelessness laws in relation to a person of only one citizenship, but of course there are other points to be made that people technically of dual citizenship would in fact not be able to get their second citizenship partly because of the opprobrium of having lost the first. So there are all sorts of practical problems as a matter of law in any event that could equally conflict with the convention on statelessness.

Senator GALLAGHER: In terms of the breadth of coverage, yesterday—and I accept it is very hard to put a figure on it—some witnesses were speculating that dual-national coverage could cover up to 30 per cent of Australian citizenship at the moment.

Prof. Triggs : I do not know that figure either but I think we could say as a matter of basic common sense that it is going to cover many, many millions in the Australian community. I think something also to be seriously considered is that it does strike at the heart of Australia's multiculturalism, our migrant status. So many of us can go back to our migrant backgrounds, and there are many people who are feeling a little nervous about the broad language of this bill and the fact that they qualify as dual nationals.

It is an extremely serious step to be taking, in Australia, which does not seem to be quite as focused on the egregious acts of terrorism as one might have expected. It is unnecessarily broad and vague, with no proper process. It would be far better to have a much more focused piece of legislation that really does strike at those people who are acting in a way that constitutes a terrorist act—or clearly against the interests of Australia in a way that is sufficiently serious to warrant stripping citizenship. It is troubling for Australians, generally, to believe that legislation of this breadth could be introduced without understanding the consequences.

Senator GALLAGHER: Indeed. I go back to some earlier questioning around the potential expansion of the current section 35, I think it is. Professor George Williams appeared yesterday. In his evidence he supported the expansion of the current Citizenship Act to take into consideration current and emerging threats around international terrorism. Is that something the commission could come back to us on? I think you both said in your evidence today that you have not really looked at the current provisions. You focused your submission on the bill—as you were asked to, I might say. Is that something you could provide further advice on, to the committee, about the appropriateness of looking genuinely at how you deal with the fact that people engaging in terrorist behaviour might not be—and most likely are not going to be—fighting for a nation at war with Australia but might reflect the current activity in the international space?

Prof. Triggs : Yes. The commission would be very pleased, indeed, to do some more work on that. As I said in my earlier remarks, I applaud the need to revise our laws to take account of the reality that horrific acts are taking place not in state-to-state conflict but by non-state actors. Our laws need to be upgraded in a much more sophisticated way than they are at the moment. I would be very happy to look at what Professor Williams has suggested and to look at what might be ways in which one could improve the current laws to get to the nub of the problem, which is terrorism. At the same time, it is to establish a proper process to ensure that basic rights are respected. It is a good idea. We are very happy to come back.

Mr DREYFUS: You have summarised the commission's concerns at section 2 paragraphs 6, 7, 8 and 9 but you go on, at paragraph 10, to pick out three particular concerns of the commission. These are:

a. It would lead to automatic loss of citizenship. Individual’s circumstances, and the relative seriousness of their conduct, would not be taken into account.

b. Loss of citizenship would be consequent on the commission of what would amount to criminal conduct. However, a criminal conviction would not be required for citizenship to be lost.

c. There would be no requirement to notify an affected person of the loss of their citizenship, and there would be limited avenues to challenge that loss.

Based on those particular concerns, the commission has gone on to recommend that the bill not be passed in its present form, and I will come back to that. In (c) you said 'there would be limited avenues to challenge that loss'. I take it the commission is saying that there would be some avenues to challenge the loss of citizenship, but is the commission saying that those avenues are not adequate?

Prof. Triggs : I think what we were meaning by this, and my colleague, John, can come in on this—and this is something we have not been discussing, so far—is that while this is an automatic by-operation-of-law provision the minister does have a power to exclude somebody from the operation of that provision of automaticity. It will be possible, although the minister cannot be compelled to make a decision, one way or the other, to have some form of judicial review of the legislation that gives him that discretion, if he makes a decision not to or to exclude.

That would be a potential opportunity for judicial review. The difficulty, however, is that as the legislation gives the minister non-compellable power and the minister can make the decision—I think the language is 'as he or she thinks is appropriate'— there is very little for a court to review, in fact, because it would be very unlikely for a court to overrule that exercise in ministerial discretion. Technically, there is a right of review at the judicial level, in relation to that power of exemption, but it is unlikely to be effective. It is reviewing the unreviewable, for practical purposes.

In relation to any other options for review, I cannot think of any others. Perhaps my colleague can.

Mr Howell : I agree with everything Professor Triggs has just said. In terms of what judicial review could realistically achieve, it would be a review that could not focus on the merits in any decision and, as Professor Triggs has said, any discretions of the minister are non-compellable. So there would be very limited relief as well.

In terms of any other avenues to collaterally challenge some sort of view or administrative act that was consequent on a finding of loss of citizenship by some other administrative actor somewhere in government, it is a little hard to speculate without the bill providing any concrete mechanisms on how these decisions would be implemented, in specific cases, where there are administrative consequences of loss of citizenship. Without knowing exactly what the decision is and what the effect of that decision is it is hard to speculate about how a challenge would work.

It would, in any event, seem to rely on judicial review proceedings being taken, which would have those same consequences. There is not really the opportunity to investigate the merits of decisions, only the way in which decisions have been made, so it is quite a limited right. The fact that the mechanisms, decision making and consequences are not spelt out in the bill makes it much more difficult to be really certain about how that would play out, if that were the case.

Prof. Triggs : I would add that the minister has no obligation to notify the person whose citizenship has been lost. The minister can notify a person as they choose but there is no obligation to make sure that person is aware that the action has been taken. This is another difficulty, as a matter of the rule of law, that the individual affected by the sanction has no necessary right to a notification of it. That is another problem.

Senator BUSHBY: I do not have the bill in front of me but in the notes we received in the briefing paper from the secretariat, and I am relying on those notes, it says that the minister is required to give written notice of cessation and is to do so in all cases, as I understand it. So are you sure that is the case?

Prof. Triggs : My understanding is that there is an obligation for the minister to provide a notice but not a notice to the person affected. That may need to be clarified. Either I have misunderstood that or your briefing has. That is my understanding, at the moment. There is no obligation to provide a notice to the person whose citizenship has been lost under the current language of this bill.

Senator BUSHBY: Just while I have the floor, don't the Federal Court and the High Court have original jurisdiction when it comes to considering a declaration, made by the minister, in this regard?

Prof. Triggs : They may have original jurisdiction but it is the extent of that power that is the concern. In other words, if there is no right to a merits review of the minister's exercise of discretion to exempt someone from the provision it is merely a power to look at whether the minister has followed the terms of the legislation. That is going to be almost impossible to overturn.

Senator BUSHBY: As I understand it, a person who has been affected by this has the power to seek a declaration as to whether they have lost their citizenship. That is a self-executing thing based on facts, not a minister's discretion, so the facts would be examined by the court.

Prof. Triggs : I think I would like to go back and see whether that is how that declaration could work. If so, it would give the High Court the jurisdiction to examine how this has occurred. As far as I am aware, we have not done any work on the question of the power of the High Court. We would be very happy to come back to you in a few days, if we may, with a note on that.

Senator BUSHBY: I would appreciate that. Thank you.

Mr DREYFUS: That would be of assistance because one of the submitters yesterday and some of the written submissions have suggested the same thing—that the declaration that Senator Bushby has just referred to would probably not be open because it would be seeking an advisory opinion of the court. So if the Human Rights Commission is in a position to assist this committee with a bit more consideration of the point that led off from me asking about the limited avenues to challenge the loss of citizenship, that would be of assistance.

Prof. Triggs : We would be very happy to do that. All of our work really is focused on the international treaties; we do not in these submissions spend a lot of time on the constitutional aspects. At the same time, you are absolutely right: the core of my concern and the commission's concern is lack of process. If this does provide an opportunity for a High Court review or declaration then obviously that is an important point to be made. So we would be very happy to do that.

Mr RUDDOCK: I am not sure I agree that my colleague is absolutely right. My colleague suggested that an approach by an individual whose citizenship had been taken away under these provisions to the High Court in its original jurisdiction might be seeking an advisory opinion.

Mr DREYFUS: I was not suggesting that that all. And it is not my suggestion; I am repeating something—

Mr RUDDOCK: Okay, so long as you were not suggesting it—because it would not be an advisory opinion.

Mr DREYFUS: I am not in the least suggesting that; I am repeating a submission that was made yesterday, and which has also been made in written submissions, that any judicial review process would need to focus on an actual act by a government official that resulted in loss of rights in some way, which to my mind—and this is my opinion—would give rise to a cause of action in the High Court or the Federal Court.

Mr RUDDOCK: Absolutely. The High Court will not give advisory opinions. I understand that. But a person affected would not be seeking an advisory opinion; that is the only point I was making.

CHAIR: Professor Triggs, could we come back to you later? We will get the secretariat to arrange a time.

Prof. Triggs : Yes, we would be very happy to do that.

CHAIR: Thank you for your cooperation.