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

MORGAN, Ms Lucy, Information and Policy Coordinator, Refugee Council of Australia

[10:14]

CHAIR: Welcome. Although the committee does not require witnesses to give evidence on oath I remind you 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 the parliament. The evidence given today will be recorded by Hansard. I now invite you to make some introductory remarks before we proceed to questions.

Ms Morgan : Thank you. Our concerns about the bill are outlined in detail in our submission so I will keep my opening comment brief. The two main concerns that we would like to highlight are, firstly, that this bill imposes measures which are not, in our view, proportionate to the harm they seek to prevent; and, secondly, that the bill fails to establish clear processes and safeguards to ensure due process and prevent innocent people from being unfairly penalised.

In relation to the first point, we believe the bill seeks to impose an incredibly serious penalty—in effect, permanent exclusion from Australia—on people suspected of certain crimes without there being any compelling evidence to suggest that this is likely to have an impact on preventing these crimes either in Australia or overseas. We are also concerned that the measures in the bill would apply to a broad range of offences with the same penalty regardless of the seriousness of the offence. For example, we believe it would be fundamentally unjust for a person who has caused minor damage to Commonwealth property and has never posed any threat to the safety of others, let alone to national security, to face the same penalty as a person responsible for carrying out terrorist acts which have killed or injured hundreds of people. In our view the penalty imposed must be commensurate with the severity of the offence. We do not believe the bill strikes this balance appropriately.

In relation to the second point, we are greatly concerned that the bill fails to outline the clear standard of proof for the automatic renunciation of citizenship—for example, it is unclear whether a person could face this penalty on the basis of suspicion alone—and nor does it stipulate a clear merits review process. Without these safeguards in place there is a real risk that innocent people could lose their citizenship unjustly. We believe that the imposition of such serious penalties should at the very least require conviction by a court of a serious terrorism related offence and should be subject to a robust system of independent merits review.

The bill also lacks safeguards to prevent refoulement in cases where former dual nationals cannot return to or reside in their other country of nationality due to protection concerns; to ensure that people in these circumstances will not be subject to prolonged indefinite detention; to protect dual nationals from becoming de facto stateless if they do not enjoy effective citizenship in their other countries of nationality; or to prevent family members of people whose citizenship may cease under this legislation from being unfairly penalised.

The Refugee Council does recognise the need to take appropriate action to prevent terrorism and ensure that people who engage in terrorist activities are held accountable for their crimes. Indeed, many of the people who we work with who have been granted protection in Australia have fled their homelands because of terrorism and related conflicts. We certainly do not wish to dismiss the seriousness of the security challenges currently facing Australia or deny the need to adopt appropriate measures to protect the Australian community from acts of violence. Equally, however, the Refugee Council does not accept that this threat justifies the introduction of measures which could result in the denial of due process and the unfair penalisation of innocent people.

Senator GALLAGHER: You say in your submission that the bill should be rejected in its entirety. At the end of your opening statement you acknowledged that governments have to deal with current and emerging terrorism threats. How does that reconcile with your view that the bill should be rejected in its entirety?

Ms Morgan : One of our main concerns about this legislation is that we fail to see the connection between what the bill is aiming to do—in effect, preventing terrorist acts from occurring in Australia—and the way it goes about that. We do not see the logical connection between automatically having dual citizens renounce their Australian nationality and protecting the safety of Australian citizens. We have not seen any evidence to suggest that this measure, which imposes a very serious penalty, would actually have any material impact on improving national security or the safety of Australians. Given that the penalty is so serious and that there does not seem to be adequate due process—in our view, there could be other negative consequences due to the lack of safeguards in the bill—we believe that if the bill is to be passed then a much stronger justification must be provided. We also believe that there could be other measures explored that may actually be a lot more effective in preventing and reducing terrorism both in Australia and overseas.

Senator GALLAGHER: So your first recommendation is that rather than making amendments to this bill it would be better to start again with a narrower focus?

Ms Morgan : Yes. There are certainly things that could be done to address some of the issues and concerns we raised in our submission—such as improving due process, clarifying the standard of proof and so on. But the problem that I first identified in response to your question—which was to do with the logic of the connection between the aim and the measure—would remain. Because it appears that this is still unresolved we do not believe the bill should be passed.

Senator GALLAGHER: You represent 200 different organisations. You are essentially the peak body?

Ms Morgan : Yes, that is correct.

Senator GALLAGHER: In preparing this submission you have consulted with those organisations?

Ms Morgan : We have not consulted specifically with our full membership on the specific provisions in this bill. The feedback we have offered is based on the regular consultations that we conduct with our membership and with other organisations working with refugees and asylum seekers. On that point, I should note that issues related to terrorism or concerns about radicalisation have never been raised in any of the consultations I have been involved with for the Refugee Council. So it is not an issue of concern that we have heard among refugee communities here in Australia. What we are basing our feedback on is our concerns about the potential ramifications of this bill for the people we do work with and represent.

Senator GALLAGHER: Your submission touches on themes that are coming up through various submitters—procedural fairness, retrospectivity and statelessness. In relation to children being a particularly vulnerable group, your submission supports concerns that have been voiced by both the Human Rights Commission and UNICEF.

Ms Morgan : Yes. We see quite a disconnect between the way Australia would support and protect children who had been involved in other serious crimes at a very young age and the way it seems to treat children under this legislation. We have people living in Australia right now who were resettled in Australia as refugees because they were forcibly recruited as child soldiers or at risk of recruitment. In those cases our response has taken much more of a child protection focus to look at what we can do to protect children who, in those circumstances, should primarily be seen as victims rather than perpetrators of crimes. We believe the same sorts of considerations really should be more strongly informing this legislation.

Senator GALLAGHER: Yesterday FECCA raised the issue of the broad scope—and you have covered it a little bit—in terms of covering potentially 35 per cent of the Australian community, the citizenship. Do you have any views on the social cohesion aspect—the fact that we will potentially have two different arrangements in place for Australian citizens?

Ms Morgan : In the last section of our submission we briefly commented about the potential for this kind of legislation to contribute to feelings of exclusion and marginalisation given that it does specifically target dual nationals—as opposed to people who have only one nationality, Australian nationality. We certainly think there is a risk associated with the legislation of imposing this differentiated penalty on dual nationals, including people who may have been born in Australia and lived their entire lives in Australia and who in every other respect are fully Australian. But in this legislation they are not seen in this way.

Senator GALLAGHER: Could you talk about the issue of statelessness and refoulement.

Ms Morgan : Our concern in relation to statelessness is that, although the measure is intended to apply only to dual nationals, there seems to be a bit of ambiguity about what would count as 'another nationality' for the purposes of this bill. Just now I mentioned that there are people who were born in Australia and have lived their entire lives in Australia who have no meaningful connection to another country but may nominally be a citizen of that country—because, for example, they have inherited that citizenship through their parents—and are now being expected to become fully a national of that country, and not Australia, even though Australia is their country and it is the only country they have ever known.

There is also the potential problem that the fact that someone nominally has citizenship might not mean that they have citizenship in effect. Just to give you one example of that, we have seen this as a significant problem in the past in a completely different context for asylum seekers from North Korea, because the South Korean constitution nominally grants all North Koreans—everyone on the Korean peninsula—a citizenship, but they do not enjoy those citizenship rights in effect in the same way that someone who was born in South Korea would, for example. That nominal citizenship has become a problem for people seeking asylum abroad from North Korea, because their citizenship of South Korea is seen to exclude them from refugee status in another country. I think we could potentially see the same sort of problem if we have a person who is nominally a citizen of another country but, in effect, cannot practically exercise their citizenship rights. There is certainly a risk in that case of a person becoming de facto stateless.

In relation to refoulement, our concern is that, in cases where people hold dual nationality but cannot be returned to the other country in which they hold nationality because of protection concerns, they could be at risk either of remaining in immigration detention indefinitely—theoretically for the course of their natural lives—or they could be in danger of being forcibly returned to a place where they could face serious harm. It really is not at all clear in the bill how those sorts of situations will be managed: how we will ensure that people are not returned to serious harm and how we will also ensure that they do not languish in immigration detention after they have served their time for whatever crime they may have committed.

Senator GALLAGHER: Certainly something that has been raised is the silence in the bill around meeting our obligations around statelessness and not returning people to countries whence they have fled persecution and what that means in terms of putting in place what is essentially an indefinite detention scheme. Is that something that you would like to see better understood?

Ms Morgan : Certainly. I think part of the problem is that ambiguity around the definition of what counts as a dual national and whether nominally holding citizenship of another country would include you within that definition and what implications that might have if you cannot—

Senator GALLAGHER: I am sorry to interrupt you, but this is the issue where 'dual national' and 'dual citizen' are used interchangeably.

Ms Morgan : It is not so much the issue for us. It is more that if a person is a dual national but cannot be returned to the country in which they hold nationality then are they still subject to the provisions in the same way, and if that is the case then how are we going to manage issues like refoulement or indefinite immigration detention, which could be the possible outcome here. I think the problematic assumption here is that if a person is a dual national there is no issue with statelessness and there is no issue with returning them to the country of which they hold nationality, and we believe there could be very serious issues.

Senator GALLAGHER: Yes.

Senator BUSHBY: Thank you for assisting us today. I have a question arising out of your opening statement in which I understand you said that there is potential for this to occur in the absence of any compelling evidence. Are you suggesting that the minister would make a declaration in the absence of sighting compelling evidence?

Ms Morgan : The compelling evidence that I was referring to was evidence for the link between the aims of the legislation and its likely outcomes. It was not in relation to individual decisions.

Senator BUSHBY: So it was not on evidence in particular individual situations.

Ms Morgan : No. It was in relation to the justification of the bill itself.

Senator BUSHBY: I am glad I clarified that. The other thing you said at the end—and I did not catch one of the words—was something about the unfair something of innocent people.

Ms Morgan : Unfair penalisation.

Senator BUSHBY: The unfair penalisation of innocent people. How do you see that innocent people could be penalised under this scenario?

Ms Morgan : I think there is the potential for that to occur in a couple of areas. One could be that, because we do not believe the due process is up to the standard that would ensure innocent people could not be penalised by these laws, there may be potential for somebody to unjustly lose their citizenship if they, for example, have been suspected of involvement in some kind of terrorist offence or of damaging Commonwealth property but have not actually been convicted of that crime. We also believe there is potential—

Senator BUSHBY: But that comes back to the compelling evidence issue. The information has to be put before the minister and the minister then would act on that information, and if it were a minor transgression there is always the option for the minister to say, 'Well, look, you know, all he did was paint a bit of paint on a wall of a Commonwealth building, so therefore I'm going to exempt him from this situation.' I will put to you that people who either are innocent or have transgressed the proposed bill in only a minor way are unlikely to lose their citizenship in those circumstances, particularly since it is reviewable by a court.

Ms Morgan : Our concern about the bill is that we do not think a discretionary ministerial process and judicial review is adequate for ensuring due process.

Senator BUSHBY: I understand the greater concern that you have raised, but I am not sure that I can see how the unfair penalisation of people is likely to occur in any shape or form given the checks and balances that are in place.

Ms Morgan : Perhaps we have a difference of opinion there. We simply do not view the checks and balances as adequate. We do not think a discretionary non-compellable process is adequate to ensure that no mistake will be made in these sorts of determinations. While judicial review may be available for those decisions, that is not the same as a merits review. If it is the opinion of one person that determines whether a person is allowed to remain in Australia or be permanently excluded, we do not think that is adequate in terms of checks and balances.

Senator BUSHBY: And subject to original judicial review by the Federal Court or the High Court.

Ms Morgan : Yes. But, as I stated, we do not see a judicial review process as being the same thing as merits review. The courts will not be reviewing whether or not the minister was right or wrong in making the decision that they did or whether the person actually should have had their citizenship revoked because they committed a serious offence. All the courts will be doing is determining whether the decision was made in accordance with the law. They cannot actually determine whether or not a person is or is not guilty of the offence with which they are charged. So we do not think that is an adequate safeguard to prevent people being unfairly penalised.

Senator BUSHBY: So do you think that should only apply in cases where there is evidence sufficient to convict them?

Ms Morgan : Yes. We believe that the imposition of a penalty this serious should require—

Senator BUSHBY: I think you were in the room earlier when I asked Professor Triggs about the potential difficulties of producing evidence before a court. I think Mr Nikolic talked about the problems in obtaining evidence when acts have been committed in theatres of war. Other problems with that relate to the potential to compromise informants and agents. There are all sorts of challenges in terms of producing evidence that would be sufficient to convict somebody in a court of law, despite the fact that intelligence may clearly establish that a person has been involved in those acts and presented a serious and present risk for Australians and others. How can you balance all of that?

Ms Morgan : From our point of view, some of the difficulties that you have raised about gathering evidence would actually justify the inclusion of greater checks and balances. If the argument is that it is difficult to gather evidence, that would also seem to indicate to me that we could be gathering evidence that incorrectly identifies somebody as having committed a terrorist offence. The thing that we would come back to here is that this is an incredibly serious penalty and we are also talking about serious crimes. I do not think it is justifiable to say that, because it is difficult to gather evidence, we can go ahead and impose incredibly serious penalties—some of the most serious penalties we would have under the laws of our country—because we see due process as too cumbersome in these circumstances.

Senator BUSHBY: I would not say due process is too cumbersome. Sometimes it is just impossible to achieve. You cannot always bring somebody who has spoken directly to an agent and put them in a court of law in Australia. We may have a clear statement and we may have agents and informants who have personally witnessed things but, to put them in a court in Australia, is not that easy; yet we may have the clear knowledge and intelligence which makes it very easy to draw the conclusion that there is a threat to Australians if action is not taken. Governments have a responsibility to ensure that they take into account that type of intelligence to protect Australians. We need to balance that. How do we do that whilst achieving what you are trying to achieve?

Ms Morgan : I am certainly not trying to imply that it is easy. I know these are very difficult circumstances, but my point would be that, if we had a person in Australia, for example, who was suspected of a different kind of serious crime—if they had been suspected of multiple murders, for instance—we would not penalise them in this manner on the basis of suspicion alone. We would have to have due process, even if we had people involved who, as you suggested, witnessed what had happened or suggested that they had strong evidence of it. That evidence would have to be presented in a court of law. That person would have to be convicted of the offence in order to face a serious penalty such as life in prison or potential deportation if they were a permanent resident rather than a citizen. I do not see why we should be applying a differential standard here to different types of serious crimes. Especially when the penalties are so serious, I think due process becomes even more important, rather than less.

Senator BUSHBY: The argument would be that this is not a penalty; it is actually a self-executing declaration by the person involved that their allegiance to Australia is no longer in place. But that is another matter.

Ms Morgan : The other area where we see potential for innocent people to be penalised is in relation to family members, particularly partners and children of people who may have their citizenship ceased under these provisions. This is outlined in our submission. Just briefly, we would be very concerned if we saw people who had committed no offence whatsoever being penalised in the same manner as a relative who had actually committed an offence, especially if those people are children. So we really would like to see mechanisms included in the bill to make sure that they are not penalised unfairly.

Mr DREYFUS: Ms Morgan, I understand you have got to go.

Ms Morgan : Yes, I do. Sorry.

Mr DREYFUS: I will just ask about one matter. Thank you for your submission, which is full and you have dealt with non-refoulement and other issues in writing, so I think I do not need to go to them, but you have raised the concern that some of the offences that result in automatic renunciation of citizenship are not of the kind that you would expect in a bill like this. You have dealt with this at paragraph 3.1 of your submission:

For example, proposed section 35A(3)(e) provides that a person ceases to be an Australian citizen if they are found guilty of the offence of intentionally destroying or damaging Commonwealth property under s 29 of the Crimes Act 1914. The effect of this Bill would be to revoke a person's citizenship even if a person caused very minor damage and posed no threat to the safety of others. In RCOA's view, such a serious penalty in these circumstances would be seriously disproportionate to the gravity of the offence.

I am advised that, since 2001, from publicly available statistics, there have been 178 prosecutions for this offence under section 29 of the Crimes Act. One hundred and sixty-one of those prosecutions have been dealt with at a summary level, and most of them—a percentage in the high 90s—have resulted in a conviction. But many of them, according to publicly available statistics, have resulted in good behaviour bonds, because, as you correctly point out, these offences include offences such as—and I am not seeking to minimise the criminality of these offences in any way—a person who sprays graffiti on the wall of a Commonwealth building, which is your example, or damages a computer in the office of a government department. What is your concern about that kind of offence being included in this bill? I am asking you to take into account the potentially quite large number—not as many people as get convicted of, say, speeding offences nevertheless it is not a tiny number; it is 178 prosecutions since 2001.

Ms Morgan : Our main concern is that the automatic renunciation of citizenship would just be wildly disproportionate to the gravity of the offence, especially if the purpose of this bill is to protect Australians from acts of violence and to ensure Australia's national security. We really do not see any logical connection between minor acts of vandalism, essentially, and that objective. We are talking about people who may have posed no threat at all to the safety of others at any point and had no intention of doing so. You just provided the example of speeding fines. Speeding could arguably be couched as an act that does pose a threat to the safety of others, and yet it certainly would not be included in a bill like this. It would be ludicrous to include speeding as a crime that would result in you renouncing your citizenship and being deported. And yet we are including other more minor crimes which may not affect the safety of others in a bill like this. I should clarify that I am certainly not suggesting that speeding should be included in this bill as an offence. I am merely trying to raise a parallel to show that we have included crimes in this bill which do not pose any threat to safety or national security, while not including other crimes which may well pose a threat to safety, and we really do not see the justification for doing that. We do not understand why that crime needs to be included in this bill with such a severe penalty imposed.

Mr DREYFUS: The only other matter is the indefinite detention point. To clarify that: other submitters before the committee have made the point that the mere technical fact of having dual citizenship does not necessarily guarantee a right of entry into the country of which the former Australian citizen holds citizenship. You are making a different point—or possibly making that point too, but you are making the additional point that it would potentially be a breach of Australia's non-refoulement obligations under the refugee convention for some former Australian citizens who have had their citizenship cancelled, because they could not be returned to the other country of which they hold citizenship, because of a fear of persecution or death, that being the basis of their first arrival in Australia.

Ms Morgan : I draw a parallel perhaps with a group of refugees in indefinite detention who have been found to have an adverse security assessment. Many now have languished in detention for over five years because they could not be returned. I think the likely eventuality of somebody in that kind of situation who falls foul of these new provisions and has their citizenship cease would be either Australia returning them to their country of other nationality in violation of our non-refoulement obligations or them finding themselves in much the same situation as that group of refugees staying in detention indefinitely. Another parallel to draw there is that many of the security assessments on which the decisions to keep those people in detention were made have since been overturned, which suggests that a lot of those people were kept in detention needlessly for a number of years. Under the current bill, that sort of security information could also be used by the minister or others to make decisions about whether or not a person's citizenship ceases. Given that the reviews of those ASIO assessments have clearly shown that ASIO does not get it right all the time, I think it really does highlight the reason why due process is so important when you are imposing penalties this serious or potentially placing people at risk of indefinite detention.

Mr DREYFUS: I take it that your suggestion is that another form of legislation would be necessary: one which involved the application of a discretion in order for those non-refoulement considerations to be taken into account.

Ms Morgan : It does seem to be a gap in the current bill. It does not really seem to be considered as a potential concern in the bill as it is currently drafted. The point I would make is that it really highlights the problem with this kind of approach to addressing the problem in that it raises all sorts of other concerns and problems that will need to be addressed and considered if it is implemented as it currently stands. This is why we have made the recommendation to reject the bill in its entirety. We find it difficult to see how this kind of approach could be implemented in a way that would not raise these concerns and would prevent the kinds of issues that we have raised in our submission from arising.

Mr DREYFUS: Thanks very much.

CHAIR: Thank you for giving evidence at the hearing today. 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.

Ms Morgan : Thank you. I apologise for having to leave.

CHAIR: No problems whatsoever.