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

GANS, Professor Jeremy, Member, Centre for Comparative Constitutional Studies

SAUNDERS, Laureate Professor Cheryl, Foundation Director, Centre for Comparative Constitutional Studies

STONE, Professor Adrienne, Director, Centre for Comparative Constitutional Studies

[11:27]

Evidence was taken via teleconference—

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. The evidence given today will be recorded by Hansard. Do you wish to make some introductory remarks before we proceed to questions?

Prof. Saunders : This submission has been prepared fairly quickly in response to the committee's tight time lines, and we have drawn on a range of expertise from across the centre. The three main contributors are here in the room with us—Professor Gans on the criminal law end, and Professor Stone and myself in relation to constitutional and administrative law. We have other colleagues who are experts in international law who are not here, and if the committee wishes to follow up those aspects of the submission we would be happy to make a further response in writing if that is useful.

I want to draw your attention to some of the most significant points in the submission, and then we would be very happy to answer any questions from the committee. First of all, we think there are some considerable problems with the drafting of the bill, including its interaction with the Criminal Code, which also create considerable uncertainty about its meaning and operation. Secondly, on any view of the meaning of the bill, however, there is in our view an overreach in the range of actions said to trigger withdrawal of citizenship. Thirdly, we consider that the device in the bill of relying artificially on the concept of lapse of citizenship is somewhat clumsy, masking real uncertainty about when that occurs and the underlying reality of executive discretion. Fourthly, we think there are some problems with the reality of judicial review of the exercise of public authority under the bill. But, next, we do think there is a real likelihood of judicial review of the constitutionality of the bill, for the reasons we give in our submission. The comparative cases to which we refer demonstrate the way in which other constitutions exercise the constraining influence on legislation of this kind, and we would expect the same to be true in Australia.

Perhaps I could just say by way of conclusion that I have been thinking a little further, since we put the submission in, about the concept of allegiance. Let me elaborate on that just a little. I think there is a broader question about the reliance of this bill on what is effectively a fiction that Australians who have undertaken actions of this kind are deemed to have voluntarily renounced their allegiance to Australia. This bill involves a major extension to the notion of what allegiance involves. Allegiance in fact lies at the very heart of the two-way relationship between people and the state, and it seems, to me at least, that it should not lightly be fiddled with, even if fiddling is constitutionally possible. We acknowledge that there may be a problem for the traditional concept of allegiance presented by the circumstances of the 21st century—the reality of conflict with non-state actors involved in the notion of terrorism, and the rise of the international legal framework for the use of force. But it does seem to us that these are very important issues that should be examined carefully with a considerable amount of public consultation, perhaps by your committee or perhaps by a joint select committee of the parliament, but that in any event such an outcome should not be pre-empted by a rushed conclusion in considering a bill of this kind. An inquiry of that kind, it seems to us, should bear in mind the diversity of the Australian people, the incidence of dual citizenship amongst Australians, the anxiety that steps of this kind might cause to Australian families with dual citizenship and the potential for a redefinition of the allegiance in relation to one category of citizen to cause real disparities for treatment of the body of Australian citizens as a whole. Those are important questions, and we hope the committee will be in a position to take them into account.

Senator GALLAGHER: Thank you all for appearing, and apologies for the delay. At the end of your detailed submission it says—and I will quote from it:

The enactment of the Bill would signal a fundamental shift in what it means to be an Australian citizen.

I think you have probably touched on this in your opening statement, but perhaps I could give you the opportunity to elaborate on what you mean by what is a very strong statement there.

Prof. Saunders : That was the point I was trying to get at in my opening statement—that the notion of what constitutes that core bond between the citizen and that state has been based on traditional ideas of treason and deliberately surrendering citizenship by, for example, becoming a citizen of another state, where only single citizenship is allowed. But the operations of a bill of this kind really quite radically expand the notion of what amounts to severing those links, and that seems to us to be a very, very serious thing to be considering at all and certainly to be considering hastily.

Of course our notions of allegiance have developed historically over many centuries, and of course circumstances change in the world, and we can acknowledge that they have changed, but those changes themselves are very complex. Even though the circumstances in which states are operating and dealing with things like terrorism have changed dramatically, the state system has consolidated, if anything, and the notion that everybody in the world is a citizen of a state has consolidated. So this is a very complex inquiry that we think should not be done incidentally. If it is going to be done at all by Australia, it needs to be done as a single, careful and deliberate exercise.

Senator GALLAGHER: That goes back to your point of having a much broader inquiry that seeks to draw significant community consultation into that process.

Prof. Saunders : Yes, a broader and deeper inquiry, and a deliberate inquiry. We are exploring the notion of the link between Australians and their state in the circumstances of the 21st century in the light of our knowledge of the Australian community.

Mr DREYFUS: Can I just confirm that the Centre for Comparative Constitutional Studies is part of the Melbourne university law school?

Prof. Saunders : That is right.

Mr DREYFUS: And all three of you are professors at the law school at the University of Melbourne?

Prof. Saunders : That is right.

Mr DREYFUS: In your helpfully detailed submission, at section 4, which is on page 7, you have assisted the committee with some observations about the situation in broadly comparable countries, which you have identified as Canada, the United States and the United Kingdom. I will first of all ask you the broad question: the proposal contained in this bill for Australian legislation is quite a different proposal. It is following a different path to any of those three—Canada, the United States and the United Kingdom. Is that right?

Prof. Saunders : Well, it is closer to the United Kingdom than to the other two, but it is certainly a very different path to the Canadian and American paths, both of which are framed by their own constitutions. And, by the way, I understand that the Canadian bill is in any event being challenged for constitutional validity.

Mr DREYFUS: To do this in fairly short fashion: the Canadian legislation, which, as you note, is itself under challenge, starts with a conviction for a relevant offence and then gives a discretionary power to the minister. Is that right?

Prof. Saunders : I think so, yes.

Mr DREYFUS: I wonder whether you could outline in brief why the United States also has a different approach from that contained in this bill.

Prof. Saunders : The United States has a much narrower range of factors that trigger so-called expatriation—entering and serving in the armed services of a foreign state, committing acts of treason, or conspiring to overthrow or wage war against the US government. That narrow range of circumstances that trigger automatic deprivation are the consequence of the interpretation of the United States constitution.

Mr DREYFUS: You have noted also, as I understand it, at the bottom of page 8 of the submission, the need for the government to prove an intention to relinquish citizenship.

Prof. Stone : That is right, and that is significant, so there is an onus on the government there to prove an intention to relinquish citizenship.

Mr DREYFUS: And, as you say, in the United States there is an evidence based judicial process.

Prof. Saunders : Yes.

Prof. Stone : Yes, that is right.

Mr DREYFUS: Professor Saunders, you said that the United Kingdom, out of these three broadly comparable countries, might be said to have the closest approach to that contained in the bill. Can you explain the reference you have made to different constitutional arrangements in the United Kingdom?

Prof. Saunders : The point in relation to the United Kingdom is simply that of course—it is an obvious point, I guess—it is not operating within the framework of a written, entrenched constitution, as is Canada, as is the United States and as is, for that matter, Australia. In a sense that leaves the United Kingdom at large in drafting legislation of this kind. In preparing for this meeting with the committee I was looking again at what we had said about the UK legislation, and it does seem likely that it would be more susceptible to judicial review on administrative law grounds than the Australian legislation. Perhaps I could also draw your attention, as an academic, to footnote 26, which is a reference to a very interesting article that the committee might find useful, canvassing citizenship deprivation legislation more generally across Europe and analysing the various ways in which deprivation has taken place and is taking place and locating the United Kingdom on that spectrum.

Mr DREYFUS: Thanks. As you have said, in the United Kingdom the parliament has conferred on the secretary of state a broad discretion. Just to recap, you have said that the judicial review is likely to be more broadly available there than for the Australian proposal.

Prof. Saunders : I think that is likely. Judicial review is always a somewhat tentative exercise when you are working with notions of the public good, as in the United Kingdom and, to some extent, as in the Australian legislation. But the notion of it being seriously prejudicial to vital interests may be more of a hook for judicial review, I think. That is just my opinion; I do not know what expert opinion in the United Kingdom thinks about that.

Mr DREYFUS: On the next page you have drawn attention to the different constitutional setting for Australia than for the United Kingdom, noting that there is no written constitution in the United Kingdom. Would it be open to the Australian parliament to legislate in the way the British parliament has legislated to confer powers on the secretary of state?

Prof. Saunders : Well, it comes back to the constitutional constraints in which the Commonwealth parliament operates. The Commonwealth parliament needs to find a head of power, and the Commonwealth parliament needs to steer clear of the other constitutional constraints on power, including the separation of judicial power.

Mr DREYFUS: You have said what the constraints are. Perhaps I should not ask you on the spot, but do you think it would be open to the Australian parliament to legislate in the same fashion in which the British parliament has legislated to confer the power they have on the secretary of state?

Prof. Saunders : I think that by conferring the power on the secretary of state in that way—I am just trying to think through the separation of powers argument—there would be a problem with the head of power. That is an argument we have developed in our submission. The question is: if the head of power is said to be the alien's power, as seems to be the suggestion in the explanatory memorandum, what are the limits of that power and to what extent can the parliament simply redefine alien status? The other potential constitutional difficulty with the Australian legislation is the separation of judicial power, which could well be a latent problem with the Australian legislation as it stands. Clearly that is not a constraint that operates on the United Kingdom parliament. I would need to look more carefully at the United Kingdom legislation to make a final judgment about whether it would fall foul of our separation of powers.

Mr DREYFUS: But the point you have made is that the separation of powers constraint identified in Boilermakers and in subsequent cases is not something that troubles the British parliament.

Prof. Saunders : No. Neither the federalism point nor the separation of powers point troubles the British parliament.

Mr DREYFUS: Going backwards in your submission you have section 2 at pages 5 and 6 headed 'Judicial review'. You have expressed a summary view:

… there are only minimal options for judicial review of the lawfulness of the operation of this bill on persons who are presently Australian citizens.

Quite a number of submitters raised similar concerns. I wonder could you take us through what those minimal options are in your opinion.

Prof. Saunders : There are two ways in which someone who thinks they are affected by an unlawful exercise of power under this bill might be able theoretically to take action. One is if they receive a notice from the minister under one of these sections saying that the section has been triggered and they might then seek to argue that the circumstances for automatic lapse were not in fact attracted in their case. Now, subject to all the ambiguities in the legislation to which we draw attention in our submission that is a possibility, but on the other hand if these people are outside the country and their real problem is they are trying to get back into Australia and they cannot get through immigration, that is not a genuine option. The other possibility is that a challenge might be mounted to the failure of the minister to lift the bar, to adopt a phrase from another context, in relation to a particular applicant, but the way in which that part of the legislation is drafted is clearly drawing upon previous experience with sections of the Immigration Act trying to make the discretion of the minister as unreviewable as possible and the fact that procedural fairness is also waived at that point merely reiterates that perspective.

Mr DREYFUS: Just to make this clear, you are talking about proposed section 35(7) which says that the minister does not have a duty to consider whether to exercise the rescission power or the exemption power.

Prof. Saunders : Yes.

Mr DREYFUS: And the provision in subsection (9) which says that rules of natural justice do not apply and the provision further in subsection (9) that section 47, which is that obligation to give reasons, does not apply in relation to the exercise of these powers. Those are the provisions you are talking about which seem intended to put this power beyond review.

Prof. Saunders : Yes—well, to make review as difficult as possible. It is not possible to put it beyond review because the Australian Constitution itself subjects it to review, but the section is drafted to try to minimise review as far as possible.

Mr DREYFUS: Assuming someone were able to invoke a review of the giving of a notice by a minister, let us assume they are not someone who is outside Australia or, if they are, they have some way of re-entering, or assume that they are inside Australia, what is the nature of a review that such a person could invoke? What would happen in the court looking at the decision of the minister to give the notice?

Prof. Saunders : There are two things that the minister does or does not do here—isn't there. One is that the minister gives a notice—I am now looking at subsection 33AA(6). There is real ambiguity in the legislation about what the minister is doing when he is giving a notice because the legislation is drafted so as to make the notice just a mere informational thing for the purpose of the now ex-citizen. There would be a question about whether that was a substantive action that could be challenged at all. But the second action or inaction of the minister is in subsection (7), where the minister may rescind the notice—whatever that means in the circumstance; that depends on what you think the notice was in the first place—and then exempt the person from the effect of this section in relation to matters that were the basis for giving the notice. That is a serious power.

What I imagine someone might seek to do if they were affected by such a series of events is, firstly, seek to challenge the giving of the notice and, if that proves to be ineffective, to challenge the failure of the minister to effectively exempt the person. But the exemption power is, as we noted earlier, made very difficult to invoke by subsection (8), 'The minister does not have a duty to consider whether to do this'; subsection (9), 'The powers can only be exercised by the minister personally'; and then subsection (10), 'Excluding the rules of natural justice'. I might say that excluding the rules of natural justice not only has the potential of making judicial review more difficult but also obscures the integrity of the minister's own decision-making process because one of the purposes of natural justice is to obtain information upon which sensible executive decisions can be made.

Mr DREYFUS: So assuming that it were possible at all to commence a judicial review proceeding in respect of the minister's non-recision or non-exemption, would a court be able to do anything in circumstances where the parliament has provided that the minister does not have a duty to consider whether to exercise the power at all?

Prof. Saunders : That question would go to the substance of the issue before the court. So if you are the aggrieved person, you would be taking action in the High Court, presumably under 75(v) of the Constitution, against a minister as an officer of the Commonwealth. And the question would be whether there had been jurisdictional error. The proposition in subsection (8) that the minister has no duty to do this and nor does the minister have a duty to accord natural justice both go to the question of whether there has been a jurisdictional error in the first place. So it is not a question of remedy; it is a question of whether the substance of your complaint is made out. My colleague Professor Stone would like to make a comment.

Prof. Stone : I think it is important for the committee to focus on this: by limiting the grounds of review to the question of jurisdictional error, which is a narrow kind of a concept, it is not possible just simply to impugn the minister's decision on the basis that there was no evidence for it or that the person had no chance to put evidence or to get a fair hearing; you have to show a very particular, narrow kind of legal error.

Mr DREYFUS: What is the nature of that narrow legal error that would have to be shown?

Prof. Saunders : In technical terms, that the minister had addressed himself to the wrong question. But the statement in subsection (8) says, 'The minister is under no duty to even consider whether to do this,' makes it very difficult to establish that the minister had asked the wrong question because the legislation is itself saying that the minister might or the minister might not.

Mr DREYFUS: Can I try to put this in lay terms.

Prof. Saunders : I am sorry, it is a very technical area of the law.

Mr DREYFUS: I know. Is it going to be possible for a court conducting judicial review to get at the facts—that is, to get at whether the conduct, just to take section 33AA for starters, has occurred?

Prof. Saunders : That would be a different sort of action. This is the first category of action that I referred to, where somebody receives a notice that they are deemed to have renounced their allegiance to Australia because they did one of a range of things, and they say, 'I didn't.' Then the question is whether they can challenge that. The answer is that, if they are in Australia, they must be able to challenge the question of whether the law applies to them factually at all—maybe by some sort of action under section 75(3); we do not need to worry about the details of that. But my earlier point was that if they are outside Australia, if this is affecting an Australian who has gone away and is trying to come back but is affected by a notice of this kind, how are they physically going to approach a court so as to challenge the application of this legislation to them?

Mr DREYFUS: Yes. This is a very important point in the committee's deliberations, because very many of the submissions have raised concerns about the limitations on judicial review. Can I ask whether, in addition to potentially challenging the issue of the notice, or potentially challenging the minister's failure to rescind the notice or exempt someone, there might also be the possibility of judicial review in respect of some other government decision consequent on the cessation of citizenship. I have in mind decisions such as to strike someone from the electoral roll or to remove someone from a social security benefit or to decline to issue a passport. One could think of others, but there are three.

Prof. Saunders : I think that is right. I am just looking again at the legislation. Even under subsection (1), where a person renounces their Australian citizenship if they engage in that conduct, if a person then received a notice from the minister saying 'you've engaged in that conduct; you are no longer an Australian', it must be possible for them to approach a court at that stage—not challenging the notice but challenging the application of the legislation. But if they did not do that, you are quite right. If consequential actions of various kinds are taken, like refusing to allow them to vote or give them a passport and so on, there would be other bases on which they could also raise this issue.

Mr RUDDOCK: Could I interrupt for moment, before we get too far away the point. I was interested in your suggestion that a person who had been deprived of their citizenship and was outside the jurisdiction had to be personally in the jurisdiction to be able to launch the challenge. Can't they do it through instructing a legal representative to mount their claim on their behalf, even though they are out of the jurisdiction? I did not think other parties, because they were outside Australia, were denied access to our courts.

Prof. Saunders : They may well be able to—sorry, I do not know who is speaking—

Mr RUDDOCK: It is Philip Ruddock, Cheryl. I am sorry that I interrupted. It is just that it left open this question that somebody outside the jurisdiction, having lost their citizenship, may not be able to mount the challenge. It just struck me that I did not believe that appropriately instructing legal representatives on their behalf, even if they were out of the jurisdiction, would preclude them from seeking a remedy.

Prof. Saunders : I think you are right. I do not think that would preclude them; I just think it further complicates the challenge.

Mr DREYFUS: Is it the case that if the minister is relieved of the obligation to give reasons, which is what appears throughout the bill—in relieving the minister of obligations under section 47 of the Citizenship Act—that the supposedly former Australian citizen may not in fact be told the reason their citizenship has been ceased?

Prof. Saunders : That seems likely, I suppose.

Mr DREYFUS: Is there going to be any enforceable means to find out those reasons if the minister is expressly relieved by this legislation from giving reasons?

Prof. Saunders : What are we talking about giving reasons for—the notice or the—

Mr DREYFUS: I am looking at, say, subsection (10) of proposed section 33AA, which says:

The rules of natural justice do not apply in relation to the powers of the Minister under this section—

that is, the whole of section 33AA—

and section 47 does not apply in relation to the exercise of those powers.

That is under the heading 'General provisions relating to Minister’s powers'.

Prof. Saunders : Now I understand that. The immediate consequence of that section is that people are not entitled to reasons. I am just looking at subsection (6). It says:

If the Minister becomes aware of conduct because of which a person has ... ceased to be an Australian citizen, the Minister must give written notice to that effect at such time ...

What does 'to that effect mean'? Merely that you have ceased to be a citizen or that you have ceased to be a citizen because of the following conduct? The subsection is a bit loosely drafted and you might expect that you would at least be given an indication of what the conduct was that was said to have triggered this.

Mr DREYFUS: Is that something that you would suggest should be included?

Prof. Saunders : That they should be entitled to reasons?

Mr DREYFUS: Yes.

Prof. Saunders : I suppose so, but, if the bill goes through at all in this form, the greater degree of fairness to Australians affected by it as possible the better it is, obviously.

Mr DREYFUS: To go to another matter, you have expressed on pages 2 and 3 of your submission some six practical and legal difficulties in relation to what you call the device of lapsing, or automatic lapse of citizenship. I do not want to take you to each of those six, but, because you are one of the submitters who has given us one of the clearer explanations about the fault elements—that is, the paragraph starting 'Thirdly'—could you explain what the problem is in relation to section 33AA referring to definitions in the Criminal Code but not picking up the fault elements which are part of the actual offences in the code?

Prof. Saunders : Mr Dreyfus, I will hand you over to my colleague, Jeremy Gans, at this point.

Prof. Gans : The problem arises when you look at proposed subsection (2) of 33A. There is a list of conduct. You would appreciate that this list uses a set of terms that are very open to reasonable debate about what they mean. There is much public debate about terrorism and the activities surrounding terrorism. None of those terms are defined in this bill or in, as I understand it, the migration legislation. The only attempt to define them is in subsection (3), which says that those words and expressions have the same meanings as various provisions of the federal Criminal Code. The immediate problem is that only two of the terms are actually defined in the Criminal Code—that is, 'terrorist act', which has a complex and much worked over definition, and 'terrorist organisation', which has a different complex definition, including the deeming of some organisations in some circumstances to be terrorist organisations. But that is it. The other words in those provisions are not defined in the Criminal Code; they are simply used in the Criminal Code. Some of them only appear in the section headings or, in the case of the last one, the division headings of the Criminal Code. So the immediate problem is to work out what those words pick up in the Criminal Code. If they are not picking up definitions, what are they picking up?

The particular problem that you have raised is one of a set of problems that comes from the fact that, when these words were put into the Criminal Code, they were inserted into a context where there was a criminal process in place and principles of criminal responsibility and interpretation were in place that restrain or combine or sometimes expand the meaning of ordinary words. For example, there might be a heading which mentions financing terrorism, but it picks up a complex offence provision which covers conduct, circumstances, results, fault elements, exceptions, limiting principles and extension principles.

It is completely unclear to me whether when mentioning the words 'financing terrorism' and then saying they have the same meaning as in the code which if any of those things are picked up. In some cases there are terms that refer to particular sections, but the sections then have multiple offences listed in them. Some of them carry fault elements of intent and others carry fault elements of recklessness. Although that sounds like a technical thing, the difference between meaning to do something and simply being aware of the risk is a very important one in a context such as terrorism. But there is no way I can see from reading the bill or the explanatory memorandum to work out which of those fault elements, if any, are picked up.

The same thing applies to exceptions with any offences. For example, 'engaging in international terrorist activities using explosive or lethal devices' is an entire subdivision of the code which picks up a couple of offences, but there is also a blanket exemption in that subdivision for members of the Australian Defence Force. Does that blanket exemption get picked up by those words? I cannot tell you. I do not know the answer to that. But if you are just talking about the meaning of the words, those words do not carry any meaning to do with the Australian Defence Force.

The worst one of all is the last one—'engaging in foreign incursions and recruitment'—which refers to an entire division of the code, with over a dozen offences of various sorts. It is not clear which offences are picked up—the explanatory memorandum does not say—much less which elements or defences are picked up.

Another general point is that when Criminal Code offences are treated as criminal offences they pick up general principles of criminal responsibility—things such as voluntariness, absence of mistake and duress. Those matters are not trivial when it comes to, say, someone who has ended up in a restricted zone. They may have gone there involuntarily. If they were prosecuted in a criminal trial, there is no doubt they could raise those issues. In fact, the onus would be on the prosecution, once raised, to rebut them. But it is not even clear that those matters would matter for the automatic loss of citizenship under proposed section 33AA.

There is a final point to mention, which is also in the submission, which is that there is an assumption when you are defining criminal offences that there is a further control—prosecutorial discretion. That is one thing that is used to avoid the misapplication of overly broad criminal offence provisions for situations where they were never conceived of applying. There is no equivalent provision here for an independent prosecutor to have that kind of control. All there is is the exemption by the minister in the public interest, which may or may not be to do with those sorts of concerns.

In a couple of cases, including 'engaging in foreign incursions and recruitment', the code also provides for the requirement of written consent from the Attorney-General before a prosecution can happen. There is no equivalent requirement for written consent from the Attorney-General in this situation. So it goes beyond fault elements, although fault elements are a key example of the ambiguity. Just about every issue that would come up in a criminal trial is not resolved by the mere reference to words and expressions in the code. It is not clear how those issues apply. And there is a lingering possibility that someone might lose their citizenship even though, if they were prosecuted—putting aside proof issues, such as proof beyond reasonable doubt—they would be acquitted and easily acquitted in an Australian criminal court. There is a possibility they might still lose their citizenship.

Mr DREYFUS: Just to illustrate that, do you have a copy of division 119 of the Criminal Code with you?

Prof. Gans : I do.

Mr DREYFUS: I am looking at division 119 of the Criminal Code and I have one simple question. It uses a whole range of terms, some of which are defined in division 117 of the Criminal Code. In particular the phrase 'engaging in hostile activities' is given a definition which runs for the better part of a page. Is that definition for, which is central to most of the concepts that we see in division 119, going to be incorporated by reference in the way in which clause 33AA(3) is written?

Prof. Gans : The immediate problem there is that that term—'engaging in a hostile activity'—is not in proposed section 33AA, so is not picked up by proposed subsection (3), which says that words and expressions in 33AA, including proposed subsection (2)(h), have the same meaning as in the Criminal Code. The phrase 'engaging in a hostile activity' is not there; instead it is 'engaging in foreign incursions and recruitment'.

Mr DREYFUS: I understand that. That is the purpose of my question. The conduct that is said to be renunciation is described in proposed subsubsection (h) as 'engaging in foreign incursions and recruitment'. We are told that that phrase has the meaning that it has in 119 of the Criminal Code. It is true that there is a subject heading—'119.1 Incursions into foreign countries with the intention of engaging in hostile activities.' There is also another one about recruitment. I am just trying to make sense of what the drafter is intending here in saying that words and expressions used particularly in (h) have the meaning in division 119 of the Criminal Code.

Prof. Gans : The literal meaning is that, whatever 'foreign incursions and recruitment' means, those four words have the same meaning as in the heading of division 119 of the code. So whatever they mean in the heading is what they mean in proposed subsection (2)(h). But the immediate problem is how you work out the meaning of the heading. One way is to assume that the heading refers in completeness to everything in the division. In this case, the heading up would be a composite term for all the other terms in division 119, which is a dozen offences or so. If that is right—and I do not know if that is right—it is then possible that the term also picks up all the elements of all those offences. If that is right, it would pick up 'engaging in a hostile activity'. If that is right, it would be defined in the same way as it is defined in the Criminal Code. But there are a lot of ifs there. It is far from clear to me that if a court, or whoever was making the decision, got to this that they would know or be capable of working out whether every one of those offences, every element and every exception is picked up.

That is the difference between words such as 'foreign incursions and recruitment' and 'engaging in foreign incursions and recruitment'. 'Engaging' is a separate word that is not defined. That is the difference between that phrase and, for example, 'engaging in a terrorist act'. At least when it comes to 'terrorist act' you can point to the provision of the code that says 'terrorist act means' followed by a complex definition. But, apart from 'terrorist act' and 'terrorist organisation', you cannot point to any such words. For the phrase 'financing terrorism', for example, the word 'financing' does not appear anywhere in the code other than the section and subdivision headings of the code. If you wanted to define 'financing', you would just have to you guess that they were referring to a complex set of other things in those relevant provisions of the code which talk about supplying funds and the like.

These are not simple terms. 'Financing terrorism' would be a very controversial term if you set out to define it from scratch. So this question of which of the offence provisions, elements and exceptions are picked up would be absolutely fundamental to resolve. But I cannot see a way to resolve it. In particular, the explanatory memorandum lists only a set of offences that are referred to and does not otherwise attempt to explain how that deeming definitional approach works.

Mr DREYFUS: If I am the public servant compiling the secret dossier that is going to lead to the minister being invited to send out the notice ceasing someone's citizenship and I am looking at a set of activities that might fall within 'engaging in foreign incursions and recruitment', would it be open to me as that public servant compiling the secret dossier to decide that 'foreign incursions and recruitment' includes 'engaging in a hostile activity'? Looking at that definition, that might be something called 'unlawfully destroying or damaging any real or personal property belonging to the government of a foreign country'.

Prof. Gans : That would be a plausible reading but one of a number of plausible readings. I would be surprised if a public servant were able to give advice to the minister that they were confident that was the correct meaning. I do not know, but I imagine that with a serious decision like this senior lawyers would be involved, perhaps the Commonwealth Solicitor-General. But I would be equally surprised if those senior lawyers were able to do anything other than suggest possible readings of the provision. This is an issue that could only be resolved in a final way by a senior court decision—probably a High Court decision—although, in the regime here, that would come long after. On the other hand, if this were a criminal prosecution and those words and these sorts of definitional issues were in issue, there would be other mechanisms in place to resolve these matters—potentially in advance and, if not, as part and parcel of the regular process.

Mr DREYFUS: What are the practical implications for an individual who might be caught up in a consideration of the matters in section 33AA if there are not the limitations that you referred to, such as the criminal responsibility limitations—the fault elements included?

Prof. Gans : If there are dual citizens who have concerns, they will perhaps see their own lawyer, who will also be in the same predicament—perhaps worse—in trying to advise them. Lawyers always engage in a bit of risk management, but I think that a lawyer would have to tell people to be very cautious about a whole set of behaviour. For example, because of the uncertainty about whether the Australian Defence Force exemption on the provision of explosives applies to them, I imagine that military advisers or lawyers in the Australian Defence Force would have to warn dual citizen members of the Australian Defence Force to be very careful to stay outside of the formal definition of explosive handling, or whatever it is, because they do not necessarily have the benefit that their colleagues have—exemption for the Australian Defence Force. Perhaps that lawyer might add to them that they can properly hope for an exemption from the minister when the letter comes from in the mail, but, of course, that is just a hope.

Mr DREYFUS: Am I right in thinking that your joint submission offers us a cut through at the bottom of page 2:

Again, the best way to resolve these uncertainties would be the inclusion of a requirement of conviction …

Prof. Gans : That would resolve every one of the issues that I have raised. Once you require a conviction you bring in the process, which has existed for so long, to try and deal with all of these issues in a sensible way with people being warned of particulars, methods to resolve questions and a standard of proof. It would also pick up the usual protections of criminal law. That is why there is a whole methodology for reading criminal offences; because parliaments, when they are dealing with an issue, do not think about every one of these issues when they draft a criminal offence. So there is a backup from the rest of the general criminal law to help resolve the questions that parliament does not deal with. It is far from clear to me that that backup is present under the current drafting regime, but, if there were a requirement of a conviction, it would all be there, as would whatever constitutional protections flow from that requirement.

Mr DREYFUS: Your submission offers a brief comment about retrospectivity because, as you note, the committee has been asked to consider whether the proposed section 35A, which is the convictions provision, should be triggered by conduct undertaken before the act comes into effect and thus, in effect, apply retrospectivity. You have said that it would be a very unusual application of a power to enact retrospective law. Could you explain why that is so?

Prof. Saunders : It would be an unusual application of retrospective legislation, in part because of the significance of the issues that are at stake. As you are aware, retrospectivity is regarded as a very significant issue for the rule of law in many contexts, with the criminal law context being the most serious. Arguably, a sanction that strikes at the very relationship between people and the state of which they are part is even more serious in a sort of a way. So to engage retrospectivity in that context would, we would argue, be a very unusual application of the power. Given the conceptual framing of this legislation around the notion of voluntary surrender of allegiance and voluntary surrender of citizenship, it is even odder to invoke retrospectivity in that situation. The idea that you could have voluntarily surrendered your citizenship for something that was not a problem or that could not have led to that consequence at the time just seems, conceptually, very strange.

Mr DREYFUS: As you put it in the submission: 'Retrospective legislation would mean that a citizen who committed any of these offences could have had no knowledge, at the time, of this additional consequence of their actions?

Prof. Gans : I am not sure that this is on the table but, if it were considered that this would also apply to people who have already been convicted of those offences, there would be the further difficulty at the time of the trial. They might have pleaded guilty, they were unaware of those consequences and perhaps would have done things differently.

Mr DREYFUS: On that, is the loss of citizenship, if it is a consequence of Australian law upon conviction, something that an Australian sentencing court would take into account?

Prof. Gans : That is a hard question. Courts typically take into account consequences when they look at sentencing, including unexpected consequences on a person. So sometimes that leads them to, for example, reduce the sentence for someone who would suffer additional hardship from the conviction that goes beyond other people. So, within that principle, that could be covered. But it is a slightly difficult principle to be sure of its application because courts at times say that it is not their role to consider certain consequences of a conviction in their sentencing discretion. They have to interpret the scheme to work out whether they should have that role under the system. It is easy for them to take account of a surprising thing, such as the person is HIV positive and therefore will perhaps suffer in prison. But here we have a consequence which is a legislative consequence and so it would be a question of interpretation of the Australian parliament's intention as to whether that consequence should have an effect of that sort on the sentencing discretion.

Mr DREYFUS: But, certainly, to go back to the point you made before, you have drawn attention to the possibility that someone might have been convicted of one of these offences upon pleading guilty with, perhaps, an expectation of a discount for having pleaded guilty and got a lower sentence. It would be a very difficult consequence to visit on that person who has pleaded guilty and who received a lower sentence after the event the fact that they are now to lose their citizenship.

Prof. Gans : That would strike me as being a very hard thing to say. For someone it might create complete unfairness in the process in some way because they might have done things differently. It is not a problem just [indistinct] pleading guilty; people make all sorts of decisions when faced with criminal charges—not just them but prosecutors and judges as well—and all of them might have been inclined to make decisions differently had they known of this consequence. This is the whole problem of retrospective changes after a process has happened.

It is one thing to say that someone would have perhaps chosen not to be a terrorist had they known of this consequence. We might have different sympathies in that situation because you have an obligation not to be a terrorist, anyway. But a person subjected to criminal process has rights and the exercise of those rights is done under legal advice, based on the law at the time. No lawyer could advise someone to be careful, but you never know what the law will say in a couple of years time.

Mr DREYFUS: Thank you very much, Professors.

CHAIR: Thank you. 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.