Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Parliamentary Joint Committee on Intelligence and Security
05/08/2015
Australian Citizenship Amendment (Allegiance to Australia) Bill 2015

IRVING, Professor Helen, Private capacity

THWAITES, Dr Rayner, Private capacity

[12:24]

CHAIR: I welcome Professor Helen Irving and Dr Rayner Thwaites. Do you have any comments to make on the capacity in which you appear?

Prof. Irving : I am a professor of law at the University of Sydney.

Dr Thwaites : I am a senior lecturer in law at the University of Sydney.

CHAIR: 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. Irving : Yes, if I may. Thank you for the opportunity of appearing before you. I have set out more detailed remarks in my submission, but I would like to just make some overarching, general comments which go to my submission and, I hope, add a little. I want to say that I am open-minded about the policy of revocation of citizenship for terrorism or terrorism offences, whether it is likely to be effective in sending the message about the egregious nature of terrorist acts and at the same time deterring citizens from committing terrorist acts in Australia or from going to other countries to commit terrorist acts. I think there is a question of the effectiveness of this measure, but that is not the basis of my submission. But I do suggest, if that is the policy behind this citizenship amendment bill, that the law and the policy need to be aligned if the law is to achieve its purpose.

The message about how serious terrorism is—so serious that the revocation of citizenship is a proportionate measure or a proportionate response—should not become diluted, I suggest, by applying revocation of citizenship to conduct that does not fit the definition of terrorism, and that definition of a 'terrorist act' is found in the Criminal Code. So if terrorism is a national security threat, a major national security threat of a new kind, even a sovereignty-threatening phenomenon, it needs to be identified clearly and the message needs to get across clearly that it is such. If the law makes it appear that citizenship revocation is possible for conduct that is not confined to terrorism and that revocation could potentially apply to lesser offences or to conduct of innocent persons or to persons who are protesting against government policy, for example, then the message that the law is designed to deal with terrorism will be diluted or confused.

In this respect, if I may note about the statement of purpose in the bill, I think it is a mistake to describe terrorism as 'contrary to or incompatible with Australian values', as the statement of purpose does. Terrorism is not an alternative value and should not be allowed to be represented as such. It is a criminal act, internationally condemned, universally condemned, and it is contrary to all values. It is utterly 'value-less'.

The message about how important citizenship is should not be diluted either. If citizenship is exceptionally precious and essential to the common social bond—and this is what makes terrorism so repugnant as a repudiation of that bond—then it should not be easily or arbitrarily lost. The message that citizenship revocation legitimately follows from terrorist acts should reinforce both the egregiousness of terrorism and the preciousness of citizenship.

The message will be also undermined, and possibly seriously, if the law that provides for the revocation of citizenship for terrorist acts is difficult to apply or confusing to interpret—which I suggest that certainly section 33AA of the bill is—or if its application leads to legal challenges or to a significant number of cases where the minister is obliged ultimately to rescind the revocation notice because the revocation turns out to have been made incorrectly. I suggest that, as it is currently drafted, the citizenship amendment bill runs the risk of diluting or confusing the message that it is designed to give. To give an example, section 33AA of the bill—Renunciation by conduct—which is the most troubling of the sections, is described by reference to forms of conduct that have counterparts in the Criminal Code, and we have just heard at length from Professor Jeremy Gans on that point. The reference to the Criminal Code is stated as definitional, yet, as we have heard, the bill does not pick up the general definition of 'terrorist act' in the code, which entails an intention to advance political, religious or ideological cause and, in doing so, to coerce or influence by intimidation the government of the Commonwealth or the state et cetera or to intimidate the public or a section of the public. There is an intentional element, there is an intimidation element, there is a threat, and it is related to advancing particular political, ideological or religious causes. I think that is critical to keep in mind.

The conduct in proposed section 33AA is defined by reference to specific offences, or at least to the definition of specific offences, but the section appears to detach the conduct from the offences by making the reference to the sections of the Criminal Code definitional. This is very confusing, and we have just heard that it is confusing for lawyers to understand. The legally trained are finding it difficult to understand the reference between the definitions in proposed section 33AA and the offences to which those definitions are attached in the Criminal Code. As has been noted, there is an offence of engaging in international terrorist activities using explosive or lethal devices. How is it possible for it to be merely defined as such and not to be an offence, as it is under the Criminal Code? If it is an offence—which it is—how can it be treated as an act that leads only to citizenship revocation? So the connection between the definition and the offence—which the definition in the Criminal Code sets out to govern—is very uncertain and confusing and, as I suggest, is confusing the message that the citizenship amendment bill is intended to convey. If, as I suggest, it is implausible that the definition and the offence should be legitimately detached from each other, and if these forms of conduct that are referred to in proposed section 33AA are an offence—which they are—then that needs to be determined in a court of law, with the element of intention and the defences, exceptions and so on that are found in the Criminal Code.

The conduct listed in proposed section 33AA of the bill also includes certain acts that, without the elements of knowledge and intention which are found in the Criminal Code provisions, may be innocent acts. We have heard about this as well—for example, providing training connected with terrorism, which is section 101.2 of the Criminal Code and which may occur when someone provides professional services in a flying school, in martial arts and so on; many other examples would apply. Financing terrorism—section 103.1 of the Criminal Code—may occur with, as we have heard, remittances sent by family members in Australia to relatives abroad. The Criminal Code requires knowledge or recklessness and intent for such actions to be proven as offences, but the bill as currently drafted merely makes those references definitional, and I am suggesting this creates a fundamental confusion in the bill.

Proposed section 35A of the bill, which provides for revocation for conviction of terrorism offences, also extends to revocation for certain other offences, and I think that is a mistake, because the bill, as I understand it, is intended to deal with the exceptional and egregious phenomenon of terrorism and terrorist acts, and it confuses the message again to incorporate other types of offences which do not come under the definition of terrorism. Some offences in the Commonwealth Crimes Act, for example, cannot be said to be in the nature of or to have the seriousness of terrorism. On a number of occasions and in a number of submissions already, I guess, you have heard comments on section 29 of the Crimes Act 1914, which makes it an offence to damage Commonwealth property. So I suggest that to tie the revocation of citizenship to such offences—offences that do not come under the definition of terrorism—is again to seriously dilute the message that the bill is intended to deal with the extraordinarily dangerous and exceptional nature of terrorism.

Just a brief comment about the constitutional questions: proposed sections 33AA and 35 in the bill purport to be self-executing provisions, but I am suggesting that they cannot be quarantined—certainly proposed section 33AA cannot be quarantined—from a determination that certain conduct has occurred. For proposed section 33AA, this is conduct, as I have noted, that is defined by reference to criminal offences in the Criminal Code. A determination cannot be avoided. A determination must be made that such conduct has been undertaken, and if in fact this determination is made by the minister, notwithstanding that the provision attempts to remove executive determination from the picture, a constitutional objection will arise.

The Constitution, as we know, provides that courts alone can exercise the judicial power of the Commonwealth—specifically chapter III courts. The Constitution also gives original jurisdiction to the High Court to issue writs against an officer of the Commonwealth. So I suggest that, if the bill is attempting to take the revocation of citizenship as a consequence of conduct out of the hands of the courts, it is unlikely to succeed since the conduct is defined by reference to offences.

In summary, I would say that the bill as it stands will not effectively achieve the purpose for which it is designed; that is, to take extraordinary measures against an extraordinary phenomenon, an exceptional and egregious phenomenon—terrorism acts. Indeed, it runs the risk of diluting or confusing the message that it is intended to give and that is stated in the purpose to the bill. In addition, I would say that the bill is drafted in such a way that it is confusing and may be disturbing to many in the community, rather than reassuring—which, again, is the purpose of the bill.

CHAIR: Dr Thwaites, would you like to add something?

Dr Thwaites : I would like to make a few remarks. My remarks are intended to complement the remarks of Professor Irving, and they are really addressed to issues of process. So they are addressed to issues of how citizenship is revoked. In terms of concrete proposals, I certainly endorse the proposals put forward by the Law Council of Australia in its submissions. I put forward my submission on 16 July and I would like to make a few additional points here. In relation to process, the three points I want to discuss are the legal fiction of the self-executing statute, the problems of the conduct being defined in relation to offences and the reliance on judicial review. I will come to those points in a minute, but I would like to make clear the extent to which this really is an unprecedented extension of laws in relation to citizenship.

One of the points brought up has been the analogy with the existing offence in section 35 of the Citizenship Act in fighting for another army. You can think of that offence as a transfer of allegiance, in that someone has two nationalities and they have opted to support one of the nationalities rather than the other and they are left with the nationality of the force that they have been fighting for. That is a quite distinct situation from, say, an Australian-British dual national fighting in Syria who, because of their actions in Syria, is stripped of Australian citizenship and then Britain is saddled with them. So you have a situation in which the citizenship with which they are left bears no correlation of the conduct for which they are then punished. It is quite distinct from the present situation. More importantly, in terms of operational matters, to operationally ascertain whether a terrorism offence, which is the triggering conduct, has occurred is a much more complicated matter, involving completely different questions of proof from ascertaining whether someone is fighting for a foreign force.

A second analogy that has been suggested is with various matters, including in section 34A and other sections in the act, that relate to the acquisition of citizenship. It is very important that there is a clear line drawn between the circumstances in which someone may be denied citizenship on the basis that they misled or misrepresented or failed to comply with a condition that was expressed at the time of acquisition and laws which apply to someone who can be revoked of their citizenship where they may have acquired that citizenship by birth or by another mechanism. They are very distinct legal situations.

A third point that has been brought up is a reliance on the ministerial exemption as a way of curing various matters to do with the bill.

For obvious reasons, it is much better to tighten up the conduct that is captured at the outset and to indicate, as my colleague Professor Irving has indicated, precisely the conduct that is being condemned and the conduct that will attract revocation. It should not be left to the minister to play God with a non-compellable power under the bill which they cannot be required to exercise, to leave it completely at ministerial discretion as to whether someone's special circumstances allow for the automatic operation of citizenship revocation to be waived in a particular instance. The matters which would authorise waiver should be clearly stated at the outset and in the legislation. This does not involve specifying all the exemptions. That is to get it the wrong way round. What that involves is just being clear and up-front as to the conduct which will lead to revocation.

Coming to the substance of the bill, I have had the benefit of looking at a number of the submissions made by the parties, and I think the point about the legal fiction was perhaps most clearly made—it is in my submission too—by the Commonwealth Ombudsman. The point made by the Commonwealth Ombudsman is that the reality is that there will be administrative action that underlies the operation of the new provisions, and that needs to be acknowledged and there need to be clear standards that are to be employed by the relevant decision makers to ensure that the measure as framed does not invite dysfunction and tie up valuable government resources that would otherwise be usefully addressed to keeping our fellow Australians safe. These points are not simply lawyers' points in the pejorative sense that that word sometimes is used. They lose sight of the fact that many of the legal objections, if heeded, would provide for greater clarity in decision making and accountability, curtail potential abuse of the power, minimise error and bring clarity to the purpose and goals.

I think my colleague Dr Jeremy Gans, at Melbourne, has adequately and eloquently described the problems of tying the conduct in relation to particular offences under the Criminal Code and the Criminal Act, so I will just move to my final point, which is on judicial review. Judicial review is nowhere mentioned in the bill. It receives a cryptic reference in the second reading speech, in the second last paragraph, with a statement that someone can come to court to seek a declaration to the effect that they really are a citizen. Reliance on judicial review as a sole line of legal defence is usually misplaced. It often does not afford extensive legal protections—the weight that is sometimes placed on it. Nevertheless, it should not be actively undermined and it should not be actively undermined in a way that goes to fundamental concerns about fairness and the rule of law. There are a number of aspects of the current bill that do undermine judicial review.

The exclusion of the right to reasons, under section 47, in relation to the exercise of ministerial powers, is indefensible for an administrative action as serious as revocation of citizenship. It is in keeping with the idea that there is no administrative action to give reasons for, but that is a legal fiction, and when we confront the fact that there will be administrative action, and administrative decisions will be made, there should be reasons provided. Furthermore, there is no requirement under the legislation that a person be notified of an intent to revoke citizenship, and there is not even any requirement that a person be notified after the fact. The ministerial discretion is introduced by way of an exemption process, and I made comments on that exemption process earlier.

In closing, I would just say that the proposals put forward by the Law Council of Australia, and a consistent theme through the submissions, on the need for a conviction—and then the Law Council also advocated for a ministerial discretion as to citizenship revocation so it is not even automatically triggered by conviction—would clear up many of the difficulties, operational and legal, in the current bill.

CHAIR: Thank you. Are there any questions?

Mr NIKOLIC: You say that the ability of someone whose citizenship is affected to seek recourse from the Federal Court of the High Court is insufficient. You said it was indefensible for something as serious as citizenship being revoked.

Dr Thwaites : That is not what I said. I said the failure to provide reasons is indefensible.

Mr NIKOLIC: But, under section 34A of the existing act, as I understand it, the minister can revoke for a residency requirement. Under 34, there are other things that he can revoke for. You dismiss the reliance on ministerial exemption. To extrapolate your point, where there is an absence of the same layer upon layer of judicial review in the other provisions of the current act, do I take it that you are also arguing that they are also indefensible?

Dr Thwaites : I will just be very careful that I understand the points that are being made. There was an initial point about section 34 and the ability to revoke someone's citizenship on residency grounds.

Mr NIKOLIC: 34A.

Dr Thwaites : 34A. That is made a condition for acquisition of citizenship. So you are talking about someone having acquired citizenship on the basis that certain things obtain. If those things do not obtain, then the grant of citizenship in effect is not made good. That is different from conduct that leads to someone's revocation of citizenship, which bears no relation to the initial circumstance of the grant. It is solely tied to later conduct by that person.

Mr NIKOLIC: So the former is acceptable. In the case of the latter—where there is conduct including engaging in international terrorist activities using explosives or lethal devices, engaging in a terrorist act, providing or receiving training and so on—haven't those people also been awarded citizenship; and, having made a pledge to gain that citizenship, their loyalty to Australia and its people, whose democratic beliefs they share, whose rights and liberties they respect and whose laws they will uphold and obey, they then engage in what many in our society consider to be appalling, egregious, barbaric terrorist acts, offences or conduct, and that somehow is deserving of a higher standard, in your view?

Dr Thwaites : I think that is to misrepresent my point. My point is that the circumstances surrounding the legal controls on acquisition of citizenship should be very different from revocation of citizenship. Citizenship is famously a sticky concept: once you have citizenship, the controls and the whole legal regime in any order of law for losing citizenship once you have it are different from the legal regime in relation to the acquisition of citizenship.

Mr NIKOLIC: Thanks for that clarification. Could I also ask a second point of clarification. You talked about the transfer of allegiance under the existing section 35, where someone transfers their allegiance to, say, a foreign force in the context of the post-World War II framework. I think people would have had in mind Germany and Japan and others. But you say there is a fundamental difference to then, I would argue, doing exactly the same thing but transferring their allegiance to, say, a global transnational terrorist ideology and then going, as evidence of that, to fight with ISIL or Daesh and engaging in in the sorts of acts that are contrary to our national interest. Could you explain to me how those two things are different, in your view?

Dr Thwaites : They are different because, when someone who goes to and fights in Syria and who is involved in fighting for ISIS loses their Australian citizenship, it is not as if they gain citizenship in ISIS or any related entity. They could be a Chinese-Australian dual national; they will be left with Chinese citizenship. They could be a British-Australian national; they will be left with British citizenship. That is different from the circumstance of someone in the Second World War who fights for Germany, has German-Australian nationality and is left with their German citizenship. That is the extent of the point being made.

Mr NIKOLIC: So your view is that, in relation to Mr Khaled Sharrouf, for example—as I understand born in Lebanon and having been convicted to a couple of decades in jail for serious terrorist offences and on all the evidence having been engaged in the most appalling terrorist conduct—Australia should be concerned about his citizenship should his Australian citizenship be taken away, even though he was born in another country and may retain the citizenship of that country?

Dr Thwaites : The point is simply that it is not that he will be left with the citizenship of some state like ISIS; the point is that he may be left with British citizenship.

Mr NIKOLIC: Or Lebanese or Tunisian or—

Dr Thwaites : It does not matter what the other nationality is. It is unrelated to—

Mr NIKOLIC: So, if Australia cannot guarantee that Mr Khaled Sharrouf is then able to travel to that country of origin, be it Lebanon or Tunisia or wherever, your view is that the Australian government should seek to ensure that there is some provision made for his continuing citizenship of another country?

Dr Thwaites : That is not actually the point I was making at all; that was not the point being advanced. My point is simply that it is not a circumstance analogous to section 35 in your having by your actions clearly opted for your other nationality of citizenship. It is legally distinct. The outcome of your conduct is that you will be left the citizenship of a third country.

Mr NIKOLIC: How have other countries that have implemented a revocation of citizenship provision within their laws responded to that challenge? As I understand it the United Kingdom has acted on 27 occasions. Canada, France, other countries—there is a celebrated case in France of Mr Ahmed Sahnouni, a Tunisian-born man. France had a 15-year—if you engaged in a terrorist offence within 15 years of your citizenship. How do other countries act to solve the dilemma that you describe?

Dr Thwaites : I am not even putting it as a dilemma. I am simply saying that there is a distinction between the circumstance in section 35, where it is straightforward because the person's actions clearly indicate that they have opted for the citizenship of their other country of citizenship, and the circumstance in which someone is engaged in foreign conduct and is then left with a citizenship that is completely unrelated to their actions in that theatre.

Mr NIKOLIC: With the Lindt gunman, Man Haron Monis, an Iranian-born man, let us say it was an episode of domestic terrorism and he was found guilty. Would that treatment of the revocation of his citizenship, leaving him with Iranian citizenship—if I understand what you are saying—be okay given that he is not over fighting with Daesh but he is perpetrating a terrorist act in the centre of Sydney? Would his being able to rely on his Iranian citizenship be acceptable in relation to this legislation, from your perspective?

Dr Thwaites : I am slightly puzzled by the question. I am not saying that it is okay or not okay. That has been no part of what I have said. What I am saying is that it is conceptually distinct and raises a different set of legal issues that need to be thought through.

Prof. Irving : I would like to make a comment going back to section 34 of the current Citizenship Act and the distinction between the grounds upon which citizenship can be revoked in section 34 and section 35, as it currently stands, and some of the provisions in the bill. That is just to clarify that section 34 of the current Citizenship Act is concerned with the revocation of citizenship that has been acquired by naturalisation specifically. Naturalisation is conditional. It is granted upon the satisfaction of a number of conditions which are set out in the grounds of revocation of citizenship by naturalisation in section 34, including residency requirements, the ground that there be no fraud in the application for naturalisation, the ground that a conviction must be revealed in the application for naturalisation and so on. There are a number of steps and a number of conditions that have to be satisfied. Citizenship by naturalisation is always conditional upon the application being made genuinely and without fraudulent or false statement and satisfying the conditions for naturalisation. So if those conditions have not been satisfied, if there has been fraud or if the residency requirements have not been met, that means effectively that the grant of citizenship is null. It is void. It has not been made effectively in the first place. So the revocation can be removed. The revocation can be determined by the minister on the basis that the grant of citizenship by naturalisation effectively has not taken effect. That is quite different from the revocation of citizenship on conduct subsequent to having satisfied the conditions for the acquisition of citizenship either by naturalisation or by birth.

Senator GALLAGHER: Professor Irving, as I understand it your argument essentially is that the bill as proposed is so broad and unclear in parts that it diminishes the very problem it purports to be trying to solve. Is that fair?

Prof. Irving : I think that is one of the essential problems with the bill; it is not the only objection. My point is, as we have been hearing and reading in the submissions, that the bill as currently drafted is very confusing and difficult to understand and may be difficult to interpret by lawyers or by courts if it comes to the courts. If you want to get the message across that terrorism is being dealt with in a very serious manner, you do not want to end up with confusion in the application of the law. You do not want to end up with a situation where persons who have engaged in conduct that does not come under the definition of citizenship clearly set out in the Criminal Code are fearful that their conduct may lead to citizenship revocation, or where their non-terrorist based conduct does lead to citizenship revocation. Secondly, you do not want a situation where there is confusion and uncertainty about the application of the law if this bill becomes law because, apart from anything else, you will undermine the reassurance that the bill is intended to provide as a measure against terrorism; you will undermine the message that terrorism is exceptional, egregious and requires proportionate responses; and you will also find that the application of the bill if it becomes law becomes caught up in long, protracted legal proceedings and may lead to unsatisfactory outcomes.

Senator GALLAGHER: This covers both of your submissions, I believe. I do not want to verbal you but it appears that section 33AA is the one that causes the most concern. Is it fair to say, in terms of the comments you have made and some of the arguments you have put, that it is 'conduct' and how that is defined or not defined in the bill?

Prof. Irving : Section 35A is also problematic. I am not arguing that citizenship revocation for terrorism acts should not be the consequence of terrorism acts. I am arguing for making it very clear what a terrorism act is, and for providing citizenship revocation as an extra consequence of conviction for certain terrorism acts. It is very unclear in section 33AA whether there is a clear line of relationship between the conduct that is listed in that provision and the offences to which the conduct is referred in the Criminal Code. So conviction for certain other offences that are not themselves defined as terrorism offences also runs the risk of, as I said, diluting the message about the seriousness of terrorism. Section 35A at least has the virtue, if you like, of being tied to actual conviction for an act.

Dr Thwaites : My position is that I endorse all of the points just made by Professor Irving. One other matter is that—certainly in the Canadian legislation, for example—the revocation, where it follows on conviction, is tied to sentence. As was put by the Law Council of Australia and others, it is important not simply that it be tied to an offence but also that the threshold be set in relation to the sentence.

Senator GALLAGHER: So it should not be automatic under section 35A?

Dr Thwaites : I also endorse the Law Council of Australia's submission that it should not be automatic. There should be a discretion as to the effect of conviction. The trigger or the condition precedent for revocation should not be tied to the fact of the offence per se but should be tied to the sentence handed down.

Mr DREYFUS: And not to the maximum penalty provided by the parliament but to the actual sentence.

Dr Thwaites : To the actual sentence.

Senator GALLAGHER: Dr Thwaites, something that has been troubling me since we have been looking at this bill is the process under section 33AA by which revocation happens. I think some emphasis has been put on in the drafting to have it be self-executing and have it appear that no decision is ever taken, that it is the person's own conduct. Whereas, it seems to me the practical implementation of that section means that, at some point, someone has to make a decision about whether the conduct has occurred in order for other parts of this bill to kick in which is the minister issuing a notice and having that information, whatever it is, before them. What is your opinion about why it has been drafted that way?

Dr Thwaites : This is something where my colleague can also jump in. My belief is that it has been drafted in that way because there were objections to conferral of a wide-ranging ministerial power. It was seen that this was a way of avoiding separation of power issues by making it into a 'self-executing' statute—to use the term that is sometimes used—that, by operation of law, the statute would simply pick up on the fact that the conduct had occurred. Particularly given the complexity of the conduct that acts as the trigger, there clearly needs to be a determination, there needs to be some human judgement in the process. It would certainly help, operationally and legally, to clarify what the decision-making process is.

Mr RUDDOCK: That is the ombudsman's argument.

Dr Thwaites : I think the ombudsman makes the point most eloquently.

Mr RUDDOCK: The tone of your submissions I have welcomed because you recognise that there is a legitimate objective. I hear the concerns about the nature of some of the elements of the Criminal Code that might lead to possible deprivation and the argument that protecting that by a ministerial discretion that may or may not be exercised gives some people concern—I hear that. We have not seen the Commonwealth's legal advice, and a colleague has made this point. But I assume that the measures before us have been drafted as they have because the government has some advice that that is the appropriate way to proceed. Given your alternative view which addresses some of these concerns, can you proffer some certain legal, constitutional advice to me as to an alternative that may be legally constitutional and likely to be upheld?

Prof. Irving : I would suggest that if revocation of citizenship is a penalty for the commission of certain conduct, which is conduct related to an offence, then it is not within the constitutional powers of the minister to make a determination that that offence that that crime has been committed. I would see that as an essential weakness of section 33AA because I cannot imagine that a court would treat a reference to provisions of the Criminal Code as purely definitional when the conduct itself amounts to an offence under the Criminal Code. So I think there is a fundamental problem in 33AA in attempting to make the conduct clearly defined but, by doing so, with reference to the Criminal Code. It is like saying you have intentionally killed a person and we are going to call that murder but we are not going to call it a crime. That, to me, is implausible and incoherent.

Mr RUDDOCK: Does that mean you are telling me that, even though I am assuming the Commonwealth has advice that what it is doing is likely to be upheld, your view is that that advice is flawed?

Prof. Irving : If the Commonwealth's advice is that—

Mr RUDDOCK: That is all I can assume—

Prof. Irving : If the Commonwealth's advice is that an executive determination of criminal guilt can be made without going to fundamental constitutional questions regarding the separation of powers, it is incontrovertible, it is long established that the executive cannot exercise judicial power, that only the chapter III courts can exercise the judicial power of the Commonwealth, and the High Court has been very careful to guard that principle. So if the Commonwealth is receiving advice that the minister could make a determination based on criminal guilt, then that must be clearly flawed advice.

Mr RUDDOCK: It is not the minister that is doing it. It is within the departmental officials, presumably.

Prof. Irving : Making the determination?

Mr RUDDOCK: It is the departmental officials, isn't it?

Prof. Irving : The minister is acting upon the advice of the departmental officials in determining that citizenship has been revoked? I am sorry; I am not following your point. If there is an executive determination of criminal guilt, then that is a breach of the Constitution, of the separation of powers. That is all I am saying. Whether it is the minister personally who is making that determination or it is purported to be an administrative determination of another kind, that would, I would suggest, be very clearly contrary to the separation of powers.

Mr RUDDOCK: I hear what you are saying, and I have not spoken to the Commonwealth and I do not know, but I am assuming that they have had advice that what they have proposed will be upheld. I am assuming. What I am asking you is: do you have an alternative way forward—

Prof. Irving : that would be constitutionally sound?

Mr RUDDOCK: Yes.

Prof. Irving : I would suggest that revocation of citizenship in itself can be done as an administrative matter. An extra consequence that would be based upon a conviction in a court of law and, as Dr Thwaites mentioned before, that could be a discretionary power on the part of the minister to determine whether a conviction or a sentence was of a nature serious enough to then lead to the exercise of discretion to revoke citizenship. I think if one wanted to make it clear and constitutional, citizenship revocation following a conviction, with a discretionary executive power to determine whether that revocation should follow or not, so that it is not an automatic—so it does not become part of the penalty, because we know that the exercise of punitive powers is a judicial power; the executive cannot order punitive measures—that is an incident of the judicial power. It would partly rest upon whether citizenship revocation was seen as punitive or an extra penalty or a consequence that followed from the determination of guilt in a conviction. That would be a clear way, in my view, to make it constitutionally sound—to involve the courts—

Mr RUDDOCK: I hear that, and I understand that—

Prof. Irving : So to tighten up section 35A so that some of the conduct to which it is currently tied is removed, so that it becomes clearly tied to terrorism offences as defined in the Criminal Code and it becomes tied to conviction—I think that if section 35A were the thrust of the bill it would be unproblematic constitutionally.

Mr RUDDOCK: I hear what you are saying, and that seems to me to affirm that you can do this in relation to people such as Benbrika and so on, who have been convicted of a terrorist offence—if it happened now, if a retrospective issue arises, but that is clear. It seems to me that the government is desirous of moving against people who are abroad and fighting with Daesh, conducting the most horrific acts of brutality. We may get admissions. Somebody might say, 'Here I am; this is what I've been doing. I'll show you the head!' You may get that.

In fact, in many cases, what you may be dealing with is evidence that is very difficult to deduce in a criminal trial—where it is intelligence information from people who may have been there, may have witnessed it and may be providing advice to our officials. But if you allow that information to become known, and they are still there, it would expose them to very considerable risk. Often people say, in that situation, 'We are not going to put them at risk, we will not bring the evidence forward and the conduct cannot be addressed.' In this matter, I think what they are trying to say is, 'If that evidence is there, maybe we should still be able to address it. Would you help me in providing a way in which it can be addressed?'

Prof. Irving : The conduct of persons in countries overseas is fraught the difficulties, with respect to the application of the law; there is no doubt about that. They create a special problem. I have struggled to understand why section 33AA is drafted as it is. For me, the rationale behind it—if there is one—is to reach the conduct of persons where it is committed in other countries, where a conviction may not be possible to obtain. What do you do with those persons? You have a constitutional problem. I am not saying I am confident how the High Court would come out on this. There has to be a head of power to support the legislation. There is no citizenship head of power. The Commonwealth relies upon naturalisation and aliens power, specifically, the aliens' power, section 51 (xix) of the Constitution.

Under the current interpretation of that power, with respect to citizenship law, citizenship is defined as the obverse of alienage or aliens are not citizens. The test for characterising the law as a law, with respect to citizenship, rests upon a formal attribution of allegiance versus absence of allegiance. A person becomes a citizen by satisfying the criteria under the Citizenship Act. They acquire citizenship. With that, in a formal, technical sense, they acquire allegiance. What makes a person an alien is that either they have no allegiance to Australia or they have no allegiance to a state at all. They are either a citizen or a national of another state or they are stateless.

If you have that characterisation connection between the aliens power and citizenship law you may have a problem in defining persons as aliens when their conduct does not rest upon a test of allegiance. I fully appreciate that the conduct of the persons, as you have described them, in Syria fighting with terrorist organisations and committing atrocious crimes is horrendously shocking, and one would want to put those persons outside the protection of the community of Australian citizens. How to do it is difficult.

It may not be the case that a person who is eligible for and is a citizen already can be defined as an alien or turned into an alien, when allegiance is the connection between the law and the head of power, and that person arguably has not acted in a way that is disallegiant to Australia. That person has acted in a way that is horrific and horrendous, but is it any worse?

I am not trying to create a hierarchy of crimes, but let's take Ivan Milat, who not only killed people but beheaded people. He was convicted of the most serious crimes you could imagine. I am not suggesting that that is equivalent to a terrorism act, but if our measure is that the actions are extremely egregious, horrendous and repugnant, as the actions of terrorists are, does that necessarily mean that they are disallegiant to Australia? I am not suggesting that I know how the High Court would come out on this, but there could be a so-called characterisation problem. There could be a head of power problem. How far does the aliens power stretch in redefining persons who are otherwise citizens and are, therefore, protected under citizenship law? How far does it stretch in redefining them as aliens? It may stretch that head of power too far.

What do you do with such people? Ideally, you bring them back to Australia and you convict them of crimes, but that may not be possible. I do not know whether there are other measures that could be taken to cancel passports, for example. You cannot prevent an Australian citizen from returning to Australia. That is a fundamental problem. My guess is that section 33AA is drafted with that in mind. But, because citizenship carries within it the essential right to return to and remain in one's country of citizenship, even if you do not have a passport, you are not disentitled to return to Australia. I do not know what the reach of Australian jurisdiction can be such that such persons can be dealt with and prevented from coming back.

Mr RUDDOCK: I think I hear what you are saying. You cannot think of any other way.

Prof. Irving : I am not sure that it is going to actually deter them from being terrorists in Australia.

Mr RUDDOCK: This may be the best that we have.

Prof. Irving : But if it is constitutionally flawed, it is not going to get the message across.

Mr RUDDOCK: I understand that. Thank you. As a graduate, I am delighted to see my law school so well served.

Prof. Irving : Thank you.

Mr DREYFUS: I am picking up on Mr Ruddock's point about the problem of dealing with someone overseas. The Law Council and Professor Williams both canvassed the possibility of a ministerial application to a court—putting evidence in some form before a court, leading to the determination by a court that circumstances had been satisfied. It may not be a criminal conviction. It could be to a criminal standard, but it may not be a criminal conviction. That would then entitle a minister, following that declaration having been made by a court, to cancel citizenship. Is that one mechanism—

Prof. Irving : You are asking me whether that is an alternative?

Mr DREYFUS: Is that one mechanism that might satisfy the constitutional problem?

Prof. Irving : Yes, indeed. I was responding to the question: what is most likely to be the clearest constitutionally sound way of adding citizenship revocation to a conviction for a clearly defined terrorism offence? It would depend a little on the powers that were given to the minister and the powers that were given to or taken away from the court. There is a long line of cases following the so-called Kable Case in which the High Court has made it clear that the executive cannot harness the courts to do their own work. The judicial role of the courts has to be protected by the relevant legislation. The courts cannot be required to automatically act upon advice from the executive. The courts have to have the power of independently reviewing an application and independently acting upon that application. These issues have arisen in relation, for example, to orders for continued preventive detention for dangerous prisoners whose sentence is about to expire. Those were the circumstances in the Kable Case. The state parliaments have become increasingly skilled in drafting their legislation in such a way that asking the courts to make a determination of continuing detention, preventative detention, is done in such a way that it does not breach the separation of powers, because, although these have been state measures, the state courts are implicated in the Commonwealth's separation of powers by virtue of the fact that they are vested with federal jurisdiction.

So it may well work if you have a model and perhaps some of the dangerous prisoners preventative detention or whatever the acts are called—the legislation that one finds in Queensland, for example, that was unsuccessfully challenged in the Fardon case in the High Court. It is possible that those examples could give you some sort of guidance. As to courts acting upon an application by the executive to order particular consequences, absent a criminal conviction, it is possible that guidance could be given. As long as there is no interference in the independence of the court and certain procedures are not denied to the court, you may well have a constitutionally sound alternative there.

Mr DREYFUS: I was just clarifying something that arose from Mr Ruddock's question. Dr Thwaites, I want to ask you a question about the phrase 'in the service of' in section 35. It is a point that has been raised by some other submitters, notably UNICEF and the Law Council of Australia, which drew specific attention to the same example that you have drawn attention to: the medical services, the Red Cross and related humanitarian agencies. You have noted that the phrase 'in the service of' is referred to in the explanatory memorandum. I will not read it all out, but the last sentence of that says:

A person may act in the service of a declared terrorist organisation if they undertake activities such as providing medical support, recruiting persons to join declared terrorist organisations, providing money or goods, services and supplies to a declared terrorist organisation.

You have dealt with this in a very short way. What is the problem about the phrase 'in the service of' that we see in section 35?

Dr Thwaites : I should, perhaps unhelpfully, begin by saying I am not a lawyer of international humanitarian law, so I am not best placed to discuss the phrase or to help the committee on that matter. The reason for my choice of the example is that it is explicitly suggested in the explanatory memorandum. The concern is just that people under their medical oath have an obligation to help the wounded, to help the sick, and the idea that they would be stripped of their Australian citizenship for doing so should be clearly ruled out, or there should be no uncertainty about that fact that they would not be.

Mr DREYFUS: It is something that could be dealt with in drafting?

Dr Thwaites : Yes.

Mr DREYFUS: On the drafting, under the heading 'The bill evidences signs of hasty composition', paragraph 30 of your submission—and I join with you, Dr Thwaites, in intending no criticism whatsoever of the professional parliamentary draftspersons working on the legislation—you say:

Rather, it is indicative of the Bill being drafted in rushed circumstances and with shifting instructions. This is of concern given the seriousness of the subject matter.

Why do you say that it is 'indicative of the Bill being drafted in rushed circumstances and with shifting instructions'?

Dr Thwaites : Because there is evidence of multiple typos and errors within the explanatory memorandum and particular slips of drafting in the drafting process, which has to be seen against the very short time lines and the very public airing of changes of view on the nature of the bill.

Mr DREYFUS: Elsewhere in your submission and, again, in in a fairly short way, you have a heading here: 'Problems raised by an assortment of offences listed in s 35A'. You note at paragraph 28:

The Bill refers to 'certain conduct incompatible with the shared values of the Australian community' that demonstrates that a person has 'severed that bond and repudiated their allegiance to Australia'.

Then you ask a rhetorical question:

Why does damaging Commonwealth property lead to a loss of Australian citizenship, while a conviction for most very serious crimes on the Australian statute book does not?

How would you answer that question? What in fact is your contention, Dr Thwaites?

Dr Thwaites : My point is really just a particularisation of Professor Irving's point in her opening statement that there needs to be clarity of focus. If what you are concerned about is terrorism, if you want to be very clear that terrorism is a crime and that the crimes that are singled out are egregious instances of crimes, then you need to clearly state that. That is important for legal reasons, in that the bill could be crafted to more clearly align with disallegiant conduct, and it would allay anxieties that surround the bill, in that it would be clear that what you are focused on is terrorist crimes, not merely undesirable conduct in some way—because the moment there is a lack of clarity about that or a suggestion in the bill that it includes undesirable conduct, that immediately raises the question of what might in future be deemed undesirable conduct and where you would set the principaled bounds on what conduct would trigger citizenship revocation.

Mr DREYFUS: Are you referring there to the possibility that some future government might decide simply to add to the list of offences that give rise to revocation or cessation of citizenship?

Dr Thwaites : The less the conceptual tightness of the focus on offences that lead to revocation of citizenship, the greater the danger of their simply being added to or expanded in future.

Mr DREYFUS: Is it your view that the offence of intentionally damaging or destroying Commonwealth property should lead to a loss of Australian citizenship?

Dr Thwaites : I do not believe it should.

Mr RUDDOCK: What, like blowing up a military base—

Dr Thwaites : But in what way would that not be caught by one of the terrorist offences?

Mr RUDDOCK: or running a truck loaded with explosives into a Commonwealth building? I do not know—

Prof. Irving : That would clearly be a terrorist offence.

Mr RUDDOCK: I am just assuming that there are reasons that it was drafted this way to cover more extreme—

CHAIR: Occasionally you get drafting errors; it could be either/or.

Mr RUDDOCK: conduct that may not be caught up by other, specific offences that you potentially identify.

Dr Thwaites : We can only respond to the face of the bill, in commenting.

Prof. Irving : But it would be hard to imagine, Mr Ruddock, an action of that nature which would not be defined as or come under the definition of a terrorist offence.

Mr RUDDOCK: It may well be. I do not know. We will test this when we have other officials before us.

Mr DREYFUS: In answer to the question 'should section 35 apply retrospectively', which the committee has been asked by the Attorney-General to consider, you have given the categorical answer:

It should not. An additional punishment or consequence as grave and as far reaching as revocation of citizenship should not be applied with retrospective effect.

That is at paragraph 32. Briefly, why is that so?

Prof. Irving : I think that you were reading from Dr Thwaites' submission.

Mr DREYFUS: Sorry—yes, I was reading from Dr Thwaites' submission.

Dr Thwaites : It is the basic rule-of-law concern that someone should be able to organise their affairs with an understanding of the legal position that obtains at the time they engage in the conduct. That is the essence of the objection.

Prof. Irving : May I add something here—

Mr DREYFUS: Yes.

Prof. Irving : because I have perhaps a slightly different perspective on retrospectivity, although I reached the conclusion that the loss from retrospective application of proposed section 35A would outweigh the gain or that the advantage would be outweighed by the disadvantage. But I am still troubled by the fact that the High Court has found that retrospectivity in certain circumstances—although it has not confined it to the principle of retrospectivity—is not unconstitutional, and I am concerned about the case in which that was established, and that is the Polyukhovich v Commonwealth case, in 1999, I think. Mr Polyukhovich was not, in the end, convicted but he was charged with war crimes committed in Europe during the Second World War. There were a number of different perspectives on the question of retrospectivity. It went to the scope of the Constitution's external affairs power and how far that could reach, including how far it could reach in distant time, when the crime that was at issue in the War Crimes Act was not on the Australian statute books as a crime at the time. The court came to the conclusion that retrospectivity was not ruled out, but some of the justices of the court also pointed out that the crimes in question—war crimes of the nature of which Mr Polyukhovich had been charged—were so egregious that they were universal crimes; they were part of international customary law that you do not commit war crimes. It was also reasoned, by extension of that principle, that the war crimes at issue were part of Australian law at the relevant time.

There are a number of different ways in which that could relate to terrorism acts. I would suggest that that needs to be thought through further—the principle of whether certain terrorist acts are of that nature, so that to make the revocation of citizenship retrospectively consequential upon a conviction for those acts is not effectively making the law retrospective. But that is just a line of thinking.

Mr RUDDOCK: I suggest you are arguing that, if we made it in relation to particularly egregious terrorism offences, it may have the same consequence—

Prof. Irving : Character or quality.

Mr RUDDOCK: and characterisation that was given in the Polyukhovich case.

Prof. Irving : Yes. It is possible. In any case, the retrospective—

Mr RUDDOCK: You would not do it for the painting of a bit of graffiti on a Commonwealth building, but if somebody had been sent to jail for 20 years for threatening to blow up the Melbourne Cricket Ground—

Prof. Irving : Yes. Just because it happened in the past does not necessarily mean that it is deserving of a lesser penalty.

Mr RUDDOCK: That may be sufficiently egregious.

Prof. Irving : It may well be sufficiently egregious, but that again goes to the clarity in the bill itself. That would need to be made clear. It goes also to the point that I wanted to emphasise—that terrorist acts are defined in the Criminal Code. They have a particular character and quality to them. They are not the same as acts committed against individuals. They are acts that are designed to threaten the Commonwealth, the government, the public, arguably with the intention of being sovereignty-threatening. They are acts that have an intention behind them to promote particular causes and to intimidate or coerce the Commonwealth or part of the Commonwealth in order to promote those causes. Retrospectivity, if tightly tied to terrorist acts, defined as such, would not trouble me. I do not think it would be unconstitutional.

Mr DREYFUS: On this retrospectivity point, again you have offered us a rhetorical question, Dr Thwaites, at paragraph 32:

Why should an Australian who was convicted for damaging Commonwealth property in 2011 or 1974 (to choose arbitrary years) suddenly have the consequence that they are to be stripped of Australian citizenship visited upon him or her?

How do you answer that question?

Dr Thwaites : It should not be.

Mr DREYFUS: You made a comment under the heading 'The Bill will leave many blameless Australians feeling less safe and secure'. It is a similar point to that made by Professor Irving, so I might ask you both to answer this—not at the same time but one after another! You have used language about negative social and individual impact, Professor Irving. Dr Thwaites, can you explain what you mean by 'leave many blameless Australians feeling less safe and secure'?

Dr Thwaites : As we have heard—perhaps most eloquently expressed, in the limited testimony I have heard today, by Professor Gans from Melbourne university—the conduct that triggers citizenship revocation is fundamentally unclear. It is not clear what elements go to the offences that are referred to and defined under section 33AA. We do not know to what extent various qualifications that are within the Criminal Code—in relation to intent, knowledge, recklessness, defences and other matters—apply. If any of those defences—knowledge requirements, recklessness requirements and intent requirements—do not apply and if lawyers are puzzling over it, there is a very real issue as to how it will be received and understood in the community. It potentially has a massive chilling effect on all sorts of conduct, whether it be remittances overseas; funding relatives; running shooting ranges, aircraft training or computer training; and all manner of other things. That is the point being made.

Prof. Irving : I agree with all of those comments by my colleague. I would add that there is also an element of uncertainty with respect to the law's application to dual nationals. I would guess, if this bill were passed as it is, there may be people in the community—upstanding, law-abiding people—who would be asking themselves, 'Am I a dual national? Am I eligible for dual nationality?' They might not know, as has been pointed out; the government's Smartraveller website says that citizens may not even know that they have the nationality of another country. People would be asking themselves, 'Have I committed this conduct? Have I in the past? May I accidentally, innocently or unintentionally commit conduct that appears to be covered by section 33AA?' There is that sort of uncertainty. The bill needs to be drafted in such a way that it is much clearer. Some guidance needs to be included as to how dual nationals are identified.

Mr DREYFUS: This is my final question. At page 7 of your submission, you have drawn attention to the explanatory memorandum to the bill, which explains that citizenship is a 'common bond' and that all citizens 'owe their loyalty to Australia and its people'. It goes on to say:

Where a person is no longer loyal to Australia and its people, and engages in acts that harm Australians or Australian interests, or engages in acts that are intending to harm Australian or Australia's interest, they have severed that bond and repudiated their allegiance to Australia.

Somewhat strikingly, you have said:

This is incorrect with respect to the provisions of the Bill. Dual nationals who engage in certain conduct are held to have repudiated their allegiance to Australia. Sole nationals who engage in the same conduct are not.

Are you able to explain that and perhaps also deal with what might be the consequences of that?

Prof. Irving : The explanatory memorandum should say, 'Where a dual national is no longer loyal to Australia and its people, they have severed that bond and repudiated their allegiance to Australia,' because there is a fundamental problem. I recognise and respect the fact that the bill has been drafted in such a way as to conform to Australia's international obligations not to render a person stateless as a consequence of revoking their citizenship. The need to protect the citizenships of sole nationals from statelessness creates a fundamental tension. The notion is that loyalty and allegiance is essential, and citizenship is part of the common bond. A sole national can commit the same conduct, and that conduct arguably undermines the social bond in the same way as conduct committed by dual nationals, but the consequences are not the same. That is all that I meant. I cannot say that I see an alternative, however, if Australia is to respect its international law obligations. It is another reason for making the bill as narrowly and tightly focused upon what is actual alleged terrorist conduct as is possible.

CHAIR: Thank you for your 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. Thank you.

Proceedings suspended from 13 : 40 to 13 : 56