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

RAGEN, Mr Guy, Government Relations Adviser, Amnesty International Australia

WOOD, Ms Catherine Elizabeth Dalrymple, Legal Governance Manager, Amnesty International Australia

[10:43]

CHAIR: Welcome. 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. Do you wish to make some opening remarks before we proceed to questions?

Mr Ragen : I would. I would like to begin by acknowledging the traditional owners of the land on which we are meeting today. We pay our respect to their elders past, present and future. We celebrate their continuing culture and acknowledge the memory of their ancestors.

Amnesty would like to thank the committee for the opportunity to appear. This is an important piece of legislation—one that has significant ramifications for human rights in Australia and our national security. Amnesty opposes the allegiance of Australia bill in its current form. In our submission we recommend the parliament reject the bill. If the bill is to be passed, however, Amnesty recommends that at a minimum the parliament amend the bill to only allow for the loss of Australian citizenship after a criminal conviction; ensure the legislation adheres to Australia's international legal obligations preserving the principle that stripping citizenship is both an extraordinary measure and a last resort; reject any retrospective operation of the legislation; and reject any effort to expand the legislation to cover sole nationals.

As it currently stands, we have serious concerns regarding the bill's human rights impacts and believe it is not aligned with Australia's international legal obligations. Notwithstanding this, Amnesty recognises the fundamental responsibility states have to safeguard national security. That is not in question. We acknowledge that the choices before the executive and the legislature when it comes to policymaking on national security issues are not easy and rarely black and white. We acknowledge that the parliament is currently grappling with an issue that is complex, with potentially serious consequences for Australia's national security, yet we also make the point that what this bill is contemplating would have significant repercussions on human rights. While states have an obligation to protect the security of their citizens, they also have an obligation to protect the human rights of their citizens. Loss of citizenship means that someone loses an array of human rights. Stripping an Australian of their citizenship is one of the most severe actions the Australian government can take against an Australian citizen.

I would also like to re-emphasise in the strongest possible terms Amnesty's condemnation of the group calling itself the Islamic State. We have documented bombings, torture, floggings, summary killings and other grave human rights abuses carried out by this group. Amnesty was founded in 1961 to protect and promote human rights everywhere. This group is an affront to every principle our organisation stands for. We unreservedly condemn the atrocities being carried out by the group calling itself the Islamic State.

We agree that this terrorist group poses a security threat to which governments around the world should respond. On this point Amnesty concurs with the UN Global Counter-Terrorism Strategy that protection of human rights and the rule of law are a fundamental basis of the fight against terrorism. This is in line with international human rights law in general, which maintains that any interference with human rights for the protection of national security must meet the tests of being lawful, necessary for that purpose and proportionate to the harm it is aimed to prevent. In essence, as has been said earlier today by other witnesses, a balance must be struck between legitimate national security goals and the protection of universal human rights.

In his second reading speech Minister Dutton articulated some of the government's reasons for introducing changes to the Citizenship Act. Among these was the point that citizenship is something to be treasured and that Australian citizenship should not be taken lightly. We agree. Citizenship is not merely someone's legal status and entitlement to live in a country; it is a fundamental part of the individual's relationship with the state, creating rights and obligations which cut both ways. As such, it is the foundation from which many human rights flow. That is why for an organisation like Amnesty International citizenship is so crucial. It is not an abstract issue. In essence, stripping someone of their citizenship will have wide-ranging negative impacts on that citizen's human rights.

In our submission we highlighted questions surrounding nationality, the presumption of innocence, due process and the issue of retrospective laws. We know that this is not an exhaustive list and other organisations have touched on numerous other international legal provisions which the bill impacts. Briefly, we made the point that the Universal Declaration of Human Rights creates a right to nationality and that the International Covenant on Civil and Political Rights creates a right to enter one's own country. This is important as the bill, through the operation of section 33AA, would mean that someone who is deemed to have renounced their citizenship overseas is deprived of the right to re-enter Australia.

When it comes to presumption of innocence and due process, section 33AA will have significant impacts. We do not support this section of the bill. It would mean that an Australian citizen loses their citizenship automatically through suspected conduct, without charge and without conviction. The bill's explanatory memorandum notes that an individual who loses their citizenship will be able to seek judicial review. We have questions about how this will operate in practice. Can they simply re-enter Australia as a now former citizen? Will they have standing to lodge an appeal in Australian court? Will they be provided with evidence on which the withdrawal of citizenship was based? These are serious questions which the bill in its current form does not explicitly answer.

Finally, we note the uneasy relationship between retrospective laws and the rule of law in general and we note that this is a question the committee has been asked by the government to look into. In the words of the Australian Law Reform Commission, such laws make the law less certain and reliable.

To sum up, when looking at this legislation, Amnesty calls for adherence to the following principles: withdrawing nationality should always be an exceptional measure; anyone subject to loss of citizenship should have access to a fair hearing before an independent body; stripping citizenship should never be automatic and should take into account the circumstances of any individual case; and an individual must never be rendered stateless by the withdrawing of Australian citizenship. I will just end on the point that, through much of the debate surrounding this bill, it has gone somewhat unremarked that the Australian government still has the full force of the criminal law at its disposal to combat terrorism. It goes without saying that anyone suspected of a terrorist offence should, of course, face a full weight of the criminal justice system.

Mr RUDDOCK: You want to comment on the existing law, which acts in the way in which you have suggested this measure might, and you have criticised.

Mr Ragen : Sorry, Mr Ruddock, I—

Mr RUDDOCK: That is, people lose citizenship as a result of the law where they fight for a foreign army. They lose citizenship if they have attained it by fraud. These are measures in which people make decisions. I am just asking whether these measures, which are part of the existing legal regime, have ever been subjected to criticism by Amnesty on a matter of principle.

Mr Ragen : Not to my knowledge, no. The existing law predates Amnesty's founding by a good 10 to 15 years, I think. But the point I would make is: the bill before us is contemplating going a lot wider than the current law, and it is on—

Mr RUDDOCK: It is certainly extending it, yes. But what surprises me, in a sense, is that these arguments are mounted as a question of principle and, yet, when there are measures in law that have been place for a long period of time and that largely achieve the same outcome, they have not been subjected to the same critique, presumably on the basis that people have not thought about it or have not regarded it as a grievous breach of principles. My concern is, and I say this very strongly—and it does not mean that I would not look at a critique about the particular way in which the law might operate—when people fight for a foreign army they may, in fact, observe the rules of war; if others fight for a terrorist organisation and engage in conduct that is far more heinous and never observe the rules of war, why would we not regard it as being appropriate that a like measure should apply to them?

Ms Wood : In relation to section 35 and whether objections have been raised in that regard, and if you recall our opening statement, we said that the withdrawal of citizenship, as provided under international law, should not be done arbitrarily and should only be done in exceptional measures. Fighting against Australia with a foreign army would warrant such exceptional measures. Whether an army or an organisation observes the laws of war really does not strike as critically to the heart of the aim of this particular bill, which is allegiance to Australia and protecting the Australian community. It does differentiate itself a little bit on that basis. In addition to that, it is subject to judicial review in a manner in which some of these provisions are not, thereby going to that arbitrary deprivation of nationality, which is prohibited under international law.

Mr RUDDOCK: I do see fighting for a foreign army against Australia as being contrary to their commitment to Australia.

Ms Wood : As I just said, yes, I agree. It is that kind of exceptional measure.

Mr RUDDOCK: It is a question of whether you see engaging for an organisation that is involved in far more heinous conduct as also a matter that we ought to deal with.

Ms Wood : They are not really the matters upon which we have our concerns. It is more to do with the fact that the arbitrariness of the withdrawal of nationality goes to the limited ability to have a court review that withdrawal—

Mr RUDDOCK: That brings me to the point. I am happy to look at the detail—I am not saying I would not—about how you do it. But it is the question of principle whether Amnesty agrees that this is a matter that it is appropriate for us to address in our law—that is, deprivation of citizenship for people who are involved in behaviour which is far more heinous than fighting for a foreign army.

Mr Ragen : I think you would find that nothing we have said is implying that citizenship cannot be taken away. So if you want to elicit that from us, yes. If there is a proper process—

Mr RUDDOCK: So the principle is established. Now all we have to do is look at the means by which we deal with it.

Mr NIKOLIC: I want to address the exceptional/unexceptional point that you have both made. Under section 34 and section 34A of the Citizenship Act, citizenship can be taken away for unexceptional things. This is building on the point Mr Ruddock mentioned. The minister may revoke it in writing where it is based on fraud on an application, where it is contrary to the public interest, where there is a conviction of a serious offence and, under 34A, for failed residency requirements. You are saying it should only happen in the most exceptional circumstances. Would you consider those to be exceptional circumstances, in 34 and 34A?

Ms Wood : They are grave circumstances. Fraudulently acquiring citizenship obviously goes to the very heart of the basis upon which that citizenship was granted. But I also reiterate the point that they are subject to judicial review, so people are afforded an opportunity to say whether it was fraudulently acquired or to defend themselves. The other key point about the serious offence is that there is a conviction for that serious offence. All those matters which you turned to are indeed serious and do absolutely warrant the withdrawal of nationality or citizenship in those exceptional circumstances. They would fall into that category of exceptional circumstances.

Mr NIKOLIC: But how do you say there is no judicial review in this bill when a person affected by the bill can seek a declaration from the Federal Court or the High Court and the minister has the capacity to exempt? To say there is no judicial review ignores the fact that a person affected by the bill can seek a declaration from both the Federal Court and the High Court.

Ms Wood : It goes to the question of the importance of citizenship. In light of that importance and in relation to the other sections of the act that are already in existence which you have already mentioned, it is the quality of the judicial review. In particular our submission focuses on section 33AA in the bill, where a person may not have the opportunity, for example, to counter the information upon which the minister has based the revocation of citizenship. Going back again to the serious nature of the revocation of citizenship and also therefore the seriousness that would form the basis of the revocation of that citizenship, it also should have the safeguards which we all rely upon in the rule of law, such as proper judicial review in order to be able to argue against the potential revocation of nationality on the basis of, for example, information that was not great.

Senator GALLAGHER: I do not think your submission deals with the issue of how this bill affects children. This is an issue I have been following up with each witness, so I would like you to discuss that.

Mr Ragen : We did not go to it because there is an element here, as I mentioned in the opening statement, of our having other concerns about the bill which have probably been better covered by other organisations. That is why we have focused our submission in the way we have. I note that Australia has obligations under the Convention on the Rights of the Child but that is not our area of expertise here. I know you have heard from UNICEF this morning and the Human Rights Commission. I heard the Human Rights Commission's evidence, and there is nothing there that we would contradict.

Senator GALLAGHER: So again your concerns are around procedural fairness, access to information, international obligations—so the concerns you have raised more generally around the bill would equally apply to how that affects children.

Mr Ragen : I think that is a fair point to make.

CHAIR: They do say the final recommendations 1.9 ensure the legislation adheres to Australia's international legal obligations.

Senator GALLAGHER: Yes, that is a bit of a consistent theme, I think, coming through.

Mr DREYFUS: At paragraph 5.6 of your submission, Mr Ragen and Ms Wood, you have set out a statement made by the Prime Minister at a press conference on 23 June 2015—that is the day before the bill was second read in the House of Representatives. You have quoted the Prime Minister as saying:

So, what we are effectively doing is updating Section 35 of the Citizenship Act to reflect modern conditions where often people don't go and fight against us in a foreign army; they fight against us in a terrorist group.

Is that an accurate description of this bill?

Mr Ragen : As we go on in the next few paragraphs, we note that the bill goes a lot wider than that. Section 33AA is not limited to someone fighting against us for a declared terrorist organisation. It includes financing of terrorism, which of course is an egregious act, and someone should face the full weight of criminal law if they are suspected of that. But what we would point out is that, when someone is subject to 33AA for suspicion of financing terrorism, without testing that before an independent body or a court—or however you want to describe it—that potentially captures a whole range of people who would not fall from our perspective under the Prime Minister's definition here. For example, someone—and we mention it in our submission—who is sending remittances back to their home country, back to their family. Their family then distributes it. Some cousin is then caught up with a local terrorist group for want of a better term. Is that person then subject to a section 33AA even though they had no desire or want to fund terrorism?

The distinction we are trying to draw here is that we do not necessarily disagree with the Prime Minister's point, but the actual bill is going a lot further. As has been mentioned today by the two previous witnesses, section 35A and the list of offences that someone can lose their citizenship up to conviction includes something like damage to Commonwealth property. I think you could easily make the point that something like that does not really measure up to the Prime Minister's statement here.

Senator BUSHBY: Surely, that is why the exemption exists to enable the minister to exempt situations that may technically bring into the action the self-execution but, clearly, are not intended to be captured by the legislation.

Mr Ragen : Thanks for that. Our concern is that it is good that the minister can make an exemption, but what guarantee is there that the minister will make an exemption for something which does not—

Mr NIKOLIC: Are you seriously suggesting the minister would not exempt someone for graffiti or minor vandalism of a Commonwealth building?

Mr Ragen : What I am suggesting is: why have that in the bill?

Mr NIKOLIC: Do you see you can come up with many examples? You used the example of inadvertent sending of money back to a relative. Somehow that makes its way, but you must also accept that what we are talking about is the enablers of terrorism. If someone is collecting large amounts of funds to fund terrorism—there is the old saying that strategy without resources is illusion—then you are recruiting for or financing terrorism. Not to use your lesser example, or the graffiti example, you have to agree that there are far more examples at the egregious end of the conduct. I am interested in the fact that a number of submitters are choosing those very minor example, which my learned colleague suggests quite rightly would be subject clearly in any reasonable common-sense analysis to that exemption but fail to mention any of the much more egregious—recruiting or financing examples that might occur.

Ms Wood : If that is the case then it should be described in the bill as applying only to those most serious of crimes and deliberately, explicitly exclude damage to Commonwealth property, for example, of a minor—

Mr NIKOLIC: You are talking about everything from graffiti through to planning to bomb the Lindt Cafe. Every offence should be listed and articulated—is that your submission?

Mr DREYFUS: Can I just interrupt my colleague. The question puts to you: purporting to take a bomb into the Lindt Cafe. As far as I can see—and we have already had one government inquiry into it—that is not damaging Commonwealth property and could not be.

Ms Wood : No. And the criminal law and the criminal justice system—

Mr NIKOLIC: With respect, that was not my question. My question relates to your suggestion that we should list the offences. Can I just clarify that what you are saying is: we should list the offences, from graffiti and trespass, at the minor end of the scale we are referring to, right up to the sorts of things that Mohamed Elomar and Khaled Sharrouf were convicted of, at the upper end, and we should put things across that spectrum and articulate which is in and which is out.

Ms Wood : In the way that normal criminal law describes or differentiates between, for example, a very serious crime and lesser crimes. Both are actually crimes—and the previous witness mentioned speeding—as much as horrible things like murder and the terrible thing that happened in the Lindt Cafe.

Senator BUSHBY: Would indictable crimes as opposed to misdemeanours be a suitable—

Ms Wood : Indictable crimes, non-indictable, various different sentences. Our legislation, both at the state and the national level, is replete with examples where legislation is able to make that differentiation. If it is the case that the government wants to make that differentiation in relation to this particular bill, it certainly could do so by making a determination or including sentencing—ensuring that it does not apply to those offences where there has been a conviction for lesser sentences. That is within the capability of legislation. It is also desirable in criminal legislation, in particular, that there is that level of certainty. Again, when we are talking about something as serious as an Australian citizen losing their citizenship, that probably is a measure that should be adopted in order to differentiate graffiti of Commonwealth property from the more serious crimes, obviously, that you mention.

Mr NIKOLIC: So, subject to a clearer articulation of conduct at the upper end of that spectrum, you would then be comfortable with citizenship being lost for that conduct in those serious offences?

Ms Wood : Serious conduct, absolutely, and noting also that these are after a conviction, which is obviously welcomed as well.

Mr DREYFUS: Just to tease out a little bit of that: on the nature of the conduct in section 33AA, quite a number of the submissions, Ms Wood and Mr Ragen, have made the point that, while there is reference in proposed section 33AA to conduct and to definitions of that conduct in the Criminal Code, the mental element that forms part of the actual offences specified in the Criminal Code is absent from this bill. Is that the point that you are adverting to when you are saying an individual who innocently believes—which is a state-of-mind point—that they are funding family members overseas through a remittance could lose their citizenship without having the allegations adjudicated by a court?

Ms Wood : That is correct. If the intention of the bill is to prevent harm to the Australian community but also reaffirm the idea of citizenship and allegiance to Australia, then any such bill should also have the specificity required for such a serious consequence. As we see in criminal law, which I know is distinct from this bill, there needs to not only be the act but also the requisite intention. In incorporating simply a reference to the Criminal Code into this bill, it does not also incorporate that necessary intention to revoke allegiance to Australia by conduct. This is further compounded by the fact that it does not have the opportunity to go before a proper court of law or any proper judicial determination. It is a self-executing clause.

Mr DREYFUS: You have been asked some questions by my colleagues about the existing legislation, and I just want to see if I can clear this up. Section 34 of the citizenship act—that is the current provision—confers on the minister a discretion to cancel an Australian citizen's citizenship if they are a dual citizen in, essentially, two circumstances: if there is a conviction for fraud before the discretion arises or there has been a conviction of a serious offence, presumably committed before the person was naturalised with the conviction being recorded after the application was made for citizenship. In those two circumstances, conviction for fraud or conviction of a serious offence—and serious offence is given a definition; it is quite a familiar concept in the Australian criminal code—the minister has a discretion. The act goes on to provide, in section 47, that the minister must give reasons, if exercising the discretion adversely, to the citizen; and, in section 52, an express right of appeal on the merits to the federal Administrative Appeals Tribunal.

By way of distinction, the bill that the committee has been asked to look at expressly excludes section 47, which provides for the requirement to give reasons, does not include a decision to give a notice of revocation of citizenship as one of the matters that can be reviewed by the Administrative Appeals Tribunal in section 52, and does not require the minister to make—in fact, it expressly relieves the minister from making—a decision to exempt. Section 33AA(7) provides that the minister 'does not have a duty' to consider whether to exercise the exemption or rescinding powers in subsection (6).

So, compared to the existing arrangements under the legislation at section 34, what do you say about the proposal in this bill in terms of the due process that it provides?

Mr NIKOLIC: You have missed 34A as well, which is a special residence requirement that he can revoke for.

Ms Wood : I would simply reiterate what we said earlier, which is that, when the consequence of action is so grave as an Australian citizen losing their citizenship, Amnesty International would say that the requirements of natural justice and the rule of law should be imported into the removal of that citizenship. Section 33AA in particular does not have those natural justice and rule of law safeguards that other provisions within the act that you allude to do.

Mr NIKOLIC: On 34A, the special residence requirement which a person's citizenship can be revoked for, can you confirm that that does not need a conviction?

Ms Wood : I am dreadfully sorry, I do not have the text of that in front of me.

Mr NIKOLIC: I would ask you to take it on notice, then.

Ms Wood : Absolutely.

Mr NIKOLIC: Section 34A of the existing act allows the minister to revoke on the basis of special residence requirements. Someone has to be ordinarily resident for a period of two years prior to the period they became an Australian citizen. My learned colleague missed that provision.

Mr DREYFUS: Were you in the middle of a question there, Mr Nikolic?

CHAIR: No, he has finished.

Mr DREYFUS: At paragraph 5.4 of your submission, you have raised the question:

The question then is how a decision under s33AA made? Can an individual lose their citizenship without having first been convicted (or even charged) with one of the named offences? The legislation and the Explanatory Memorandum do not answer these questions.

Have you been able to discern, perhaps from reading other submissions or from listening to evidence in this hearing, how it is that decisions are likely to be made under section 33AA?

Mr Ragen : From what we have read in other submissions and from comments from the government, there is likely to be some sort of recommendation from intelligence services to a minister that a certain individual has done some sort of conduct consistent with section 33AA and has effectively renounced their citizenship. What we are trying to get to in that paragraph, though, is that, at some point along the line, a decision is made that someone has performed some sort of conduct which has meant they have pronounced their citizenship. So, while the behaviour of someone itself may give rise to a situation where their citizenship is renounced, at some point there is a decision made within government that section 33AA applies. That is where we are, I guess, trying to tease out the tension between this idea of automatic loss of citizenship and that the executive has a removed role from the operation of section 33AA. What we are trying to get at is that, at some point, a decision is made and is this a case of the executive exercising judicial power?

Mr NIKOLIC: But, with respect, that happens now under 34A. The minister can revoke if someone has not satisfied a two-year residency requirement, yet the argument, if I understand it, appears to be: but he must not revoke where someone is engaging in the most serious terrorist conduct or convicted of the most serious terrorist offences. It is extraordinary to me that he can do that now for not meeting a residency requirement or for the other things that we have mentioned—fraudulent misrepresentation on their citizenship form—but somehow he cannot do that when it relates to involvement in serious terrorism offences. I do not understand how that argument can be put.

Ms Wood : The big issue with section 34A, regarding residency, and whether or not that is as grave as other serious offences that warrant the revocation of citizenship, is that it is still nonetheless a very certain thing. If somebody has not lived within Australia for two years, that is a factual matter. Section 33AA does not really go to how information is tested which then forms the basis of a decision being made one way or another.

Mr NIKOLIC: How is it tested under 34A? The minister may, by writing, revoke if someone does not meet the residency requirement.

Ms Wood : But there is a requirement inherent in that and there is an opportunity to challenge it.

Mr NIKOLIC: If you are worried about process, I think Mr Ruddock's point was well made: you need to be worried—

Ms Wood : In total.

Mr NIKOLIC: about all of these processes.

Ms Wood : I think what we would hold is that there is less process involved in the way that section 33AA is effected than in other sections in relation to the particular act. We agree, obviously, that for the most serious of crimes and the most serious of activities it is open to a government to revoke somebody's citizenship, which is a very important matter. However, it should be done consistently with what we understand to be the rule of law and the principles of natural justice, and they involve things like being able to look at the evidence against you warranting the revocation of your citizenship, being able to test that evidence, whether it be during an in camera process or otherwise, and also that it be an independent body that determines that this happens, noting also the 34A is a ministerial discretion.

We would go back to international human rights law, which provides that, when citizenship is being revoked or nationality taken away, it is limited to the most exceptional circumstances, as we discussed earlier, but also is done consistently with the rule of law and people have an opportunity, if you like, to meet and controvert evidence against them warranting that revocation. We have questions that section 33AA does not do that.

Mr NIKOLIC: So, in your view, the existing 35 is inconsistent with international law.

Ms Wood : No. If you are serving formally with a foreign army against Australia, that seems to be a matter that is reasonably easy to ascertain. However, revocation of your allegiance by conduct is a lot more vague, uncertain and broad. It is by conduct where somebody makes a determination based on some information that you have engaged in conduct thereby revoking—without actually testing that intention or testing the information; that is the basis upon which that notice is sent to the person, that by their conduct they have severed their allegiance to Australia and thereby revoked their citizenship.

Mr NIKOLIC: But if you are extending the existing section 35, which is about fighting with the enemies of Australia in the post-World War II construct—Japan, Italy and Germany and so on—and saying we are modernising that to include non-state actors like ISIL or Daesh, call them what you will, why is it any more difficult to determine someone fighting for Daesh in Al-Raqqah or Mosul than it is someone fighting for an enemy of Australia in a declared situation of war?

Ms Wood : There are two things. First, we said in our earlier statements that of course we agree that law must be updated to meet the current environment of non-state actors wreaking huge havoc on people. Absolutely, we acknowledge that that has to happen. Second, if you are incorporating that into the revocation of citizenship, that also has to be done consistently with international human rights law, the rule of law and principles of natural justice that we recognise here in Australia. We question whether or not section 33AA actually meets those standards.

Mr DREYFUS: I return to this judicial review point. You note in your submission that the International Covenant on Civil and Political Rights enshrines the right to a presumption of innocence and a fair trial. The statement of compatibility with human rights that accompanies the explanatory memorandum states this, at paragraph 25, on page 31:

The Government considers that the right to a fair trial and fair hearing are not limited by the proposal. The proposal does not limit the application of judicial review of decisions that might be made as a result of the cessation or renunciation of citizenship. In a judicial review action, the Court would consider whether or not the power given by the Citizenship Act has been exercised according to law. A person also has a right to seek declaratory relief as to whether the conditions giving rise to the cessation have been met.

In the view of Amnesty International, do the appeal rights identified in that statement of compatibility meet the International Covenant on Civil and Political Rights obligation?

Ms Wood : As previous witnesses have also mentioned, one of the gaps in the review of the exercise of the powers in relation to revocation of citizenship, particularly under section 33AA, is that it does not go to a merits review, which obviously is central to the presumption of innocence—that you are, in fact, found guilty of offences alleged against you on the basis of evidence. On that basis, we would say that whether or not the determination has been made in a manner consistent with the act or with law does not go to that merits review, which is required of fair trial standards, and also flows from that presumption of innocence.

Mr DREYFUS: You have also recommended that, as a minimum, section 33AA be removed from the bill. In what other ways would you recommend that the bill be amended to address the due-process concerns that you have raised?

Mr Ragen : As I said at the opening, we honed in on section 33AA because we thought it was probably the one most open to perverse outcomes from this legislation. But we went over it earlier, and we think section 35A is probably too wide-ranging. If it were to be narrowed, we would probably have a second look. They would probably be our two greatest concerns. Katie, do you have anything you might add to this?

Mr DREYFUS: If section 33AA were not removed from the bill, how would you suggest it be amended in ways that might address the concerns that Amnesty International has put forward?

Ms Wood : It would be a full merits review of the revocation of the citizenship by conduct in a properly constitutive court of law—whether in camera, secret or otherwise, given the nature of the information that might be flowing—but an opportunity to fully test that revocation on evidence in a proper court of law, exercising full judicial function. That would be consistent with international human rights standards.

Mr DREYFUS: As you know, the committee has been asked to examine whether or not all or part of this bill ought to be made retrospective. I am not talking about the existing partial retrospectivity of section 35A. But, on that, are there amendments that might be made to the bill that might lead Amnesty International to change the view that it has put forward about retrospectivity?

Ms Wood : Not really. Retrospectivity is generally undesirable and generally should be avoided and specifically excluded by the International Covenant on Civil and Political Rights when it comes to crimes.

Mr DREYFUS: You have also said, in paragraph 6.2:

… the UN’s Global Counter-Terrorism Strategy makes respect for the rule of law a key part of the global fight against terrorism.

Do I understand Amnesty International to be saying that retrospectivity is directly contrary to the rule of law?

Ms Wood : Correct.

Mr DREYFUS: Thanks very much, Mr Ragen. Thanks, Ms Wood.

CHAIR: Although 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. Thank you very much.