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

DE VEAU, Ms Philippa, General Counsel, Department of Immigration and Border Protection

FERNANDEZ, Ms Maria, Deputy Secretary, Intelligence and Capability Group, Department of Immigration and Border Protection

GAUGHAN AM, Mr Neil, Assistant Commissioner, Acting Deputy Commissioner National Security, Australian Federal Police

HARTLAND, Ms Kerri, Deputy Director-General, Australian Security Intelligence Organisation

JONES, Ms Katherine, Deputy Secretary, National Security and Criminal Justice Group, Attorney-General's Department

NOBLE, Ms Rachel, Deputy Secretary, Policy Group, Department of Immigration and Border Protection

OUTRAM PSM, Mr Michael, Deputy Commissioner, Operations Group, Department of Immigration and Border Protection

PEZZULLO, Mr Michael, Secretary, Department of Immigration and Border Protection

CHAIR: I welcome representatives of the Department of Immigration and Border Protection, the Attorney-General's Department, the Australian Security Intelligence Organisation, and the Australian Federal Police. 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 a 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?

Mr Pezzullo : Thank you, Chair. I will speak on behalf of the assembled group. First of all, I acknowledge and welcome the presence of a number of partner agencies. We thought it best to appear before you as a collective group. There are inevitably going to be matters that overlap between us—interconnected processes and the like—and I am very grateful to my fellow agency heads for agreeing to send their senior representatives. I have tried to follow the proceedings of the last day-and-a-half as closely as I have been able to; I have had a number of other matters to attend to. Secondly, particularly when we get to some issues of concern and interest around section 33AA, and some of the questions from Mr Dreyfus and other members of the committee, I think we will reasonably quickly get to ground where—we will of course throw ourselves at your mercy, but the suggestion that all the agencies would make is that we would need to go in camera to talk about some of the specific modalities that go to the pulling together and the assembly of the relevant information that would constitute the basis of a 33AA notice. There were some references made to public correspondence that Ms Noble sent to the committee. We will be able to elucidate that to a certain extent in a public hearing, but I think we will get fairly quickly to classified grounds. I do not wish to add anything beyond those comments.

CHAIR: We will be going in camera at 2.50 pm. That will give that opportunity. Also, I apologise for the delay. As those who have followed the proceedings this morning have seen, there has been a consistent line of questioning which has meant that we have run over time. I apologise for any inconvenience that may have caused.

Senator GALLAGHER: As a first point—I am happy for any department to answer this—could you outline the public policy problem that exists which this bill seeks to address.

Mr Pezzullo : As is made clear in the second reading material, in the explanatory memorandum and in the bill itself, the government was concerned to ensure that the basic precepts and concepts that were built into the original citizenship legislation, which was first enacted in 1948 and amended over time since then, but not in its essential core features, were modernised to have regard to contemporary circumstances in the 21st century, particularly with the rise of both non-state actors who could start to take the shape and form, if not necessarily of states but of state-like bodies with apparatuses and features of a proto-state and, similarly, other actors who might work loosely in connection with such entities. These were features of the global landscape that, by and large, did not exist in 1948, when of course the world had gone through a terrible struggle. The notion of non-state actors was present at the time—there were partisan groups and non-military groups—but essentially conflict was between formed armies that had a standard and status in international law that was recognised. It was conceivable at the time, as the Prime Minister and others have made clear, to be a traitor to your country—to use a loose phrase—by picking up arms and fighting with those other formations against your own country. So in 1948 those matters were codified and dealt with by the coming into force of the Citizenship Act.

In the 70 plus years since that time, there has been the emergence of certain non-state groups. The government is of a mind—and this is, I think, clearly set out in the public pronouncements that have been made not only in the material I referred to but also at press conferences given by the Prime Minister, the Attorney, the immigration minister and others—that we are now moving to a realm that is even more complex and complicated, even compared to the terrorism of the late 20th century and the early part of the 21st century. There is now the facility of travel, global communications, the ability to send money around, the ability to source weapons and the like, and also the ability to reach out to sympathisers to mobilise them in turning or influencing their allegiance to what would otherwise be their homelands or their states. We are moving into a qualitatively different realm and we are starting to see that manifested—and other colleagues at the table could speak to this in more detail than I can—in very quick turns in allegiance, in radicalisation and the like.

The government was of the view that the legislation from that point of view was not contemporary or did not have a contemporary reach and form. Accordingly, that was the problem that the government sought to grapple with and to address its mind to. Perhaps other colleagues from other agencies may wish to add to those remarks—or not, as the case may be.

Senator GALLAGHER: Or not! So the issue itself arose as a gap in the existing legal framework, that it was not an option available—

Mr Pezzullo : I have a two-part response. Yes, whenever you seek to amend legislation prima facie there is a suggestion, both on the part of agencies that might propose such legislation or ministers who might contemplate it or cabinets that might decide it, that there is obviously some deficiency that needs to be remedied or some modernisation that has to occur. I would make the point that at a superior level of analysis and consideration there is also trying to grapple with the global phenomena that I have tried to describe, of which legislative remedies or adjustments are but one part of the armoury that is available to the state.

I should make the point almost from the outset that no-one contends—not least any member of the government who has spoken on this publicly and nor we as officials—that this is a silver bullet, a one-shot fix, that addresses the question of the diminution of allegiance. There are a whole lot of other processes at play here, and I am sure that we will get to this ground. Necessarily, the people involved in the conduct described in the legislation would inevitably also have come to attention through other processes. In security and intelligence processes, we have colleagues who work in that realm and in law enforcement investigations, we have colleagues who operate in that realm.

So was it looked at through the lens of a deficiency in the legal framework? I guess we got to that point through considered analysis. The agencies represented at the table are also looking at the phenomenon in its own right and thinking about what we need to do operationally, what we need to do through investigations, what we need to do through intelligence work and, indeed, what we need to do in terms of the person's legal status if, through their conduct, they are in effect doing what was in the mid-20th century thought to be conduct amounting to a breach of allegiance, and what that looks like in the contemporary circumstance.

Senator GALLAGHER: I am just trying to find the origins of where it started. Did the idea to deal with essentially modernising the current arrangements come from a piece of work that was done that identified that this was a deficiency or a gap in our existing framework? Was it advice provided to government? Was it something that had been informed from overseas experience? Where did it come from?

Mr Pezzullo : It was a combination thereof. I do not want to go too much into the detail of the specifics of cabinet's consideration.

Senator GALLAGHER: I am not asking for that.

Mr Pezzullo : Indeed, but I just make that caveat, because the matter at issue has gone through a number of evolutions as part of a larger consideration of counter-terrorism measures associated with the phenomenon known as foreign fighters. It was relevantly considered on and off as we grappled with this—I will not say new phenomenon—qualitatively new phase of a global problem that started in the late 1990s and manifested with 9/11 and then has morphed again. You have seen a number of measures over the last year or so. In my agency, for instance, there has been the creation of counter-terrorism units at airports; the automation of departure and, shortly forthcoming, inwards processing; and the establishment of the National Border Targeting Centre. There were resources and capabilities afforded to ASIO and resources, capabilities and powers afforded to the Australian Federal Police and the like. So, in the context of that larger menu of consideration of relevant measures there were at various points—and I do not want to be too specific without being able to refer back to ministers—expressions of interest on the part of ministers for the work to be done. So that work evolved through that means.

Senator GALLAGHER: Perhaps because I am new to this area, it strikes me that a lot of the bill relates to matters that would normally be dealt with by the Attorney-General; yet the bill vests the powers in the Minister for Immigration. Can you explain that to me?

Mr Pezzullo : There are two parts to the response. Firstly, the Attorney-General himself as the first law officer and as a member of the national security committee of cabinet—and his department is of course represented here—was intimately and directly involved, as he would be with all forms of such legislation. Secondly, in relation to the specific legislation to be amended—the Citizenship Act—under the Administrative Arrangements Orders, it sits under the portfolio that I lead as the secretary of the department which the minister overseas as the Minister for Immigration and Border Protection. So, for the purposes of that legislation, he is the minister for citizenship, and that has been, I think it is correct to say, ever thus ever since the enactment of the legislation, going right back to 1948. It was always been associated with the Department of Immigration. I think that is right. If I need to check each addition of the Administrative Arrangements Orders, I will come back with a correction. But I am pretty sure it goes back to 1948.

Senator GALLAGHER: The origin, in my understanding, of where this bill came from was that the existing section 35 of the citizenship act relates only to those who are serving in the armed forces of another nation which is at war with Australia. So the idea is expanding on that clause there. Some of the witnesses and submissions to this inquiry would suggest that it does much more than that in terms of the scope, both of the conduct and of the activities, and also the breadth of coverage in terms of who this bill will cover if it is passed. My first question in relation to that is: can you advise how many Australian citizens will be covered by this act—how many dual nationals?

Mr Pezzullo : I heard some of the testimony and evidence to that effect. The simple answer is: partly, it is not captured in the census because it is not a matter directly within the competence of any agency or department. You could have a second or dual nationality as a consequence of any number of matters—by birth, by descent, through bloodlines and the like—and, if a matter came before us, it would really turn on the specifics of each individual case to establish conclusively that a person was a dual national. To answer the question, though, in quantitative terms, the starting point would be: Australia's population reached 24 million last month—we just topped 24 million—so about a quarter, or a tick over 27 per cent, are foreign-born. Does that mean they are Australian citizens? No, because they would have needed to have taken up citizenship themselves. But potentially, by definition, they have the nationality of another country for starters. Of that group, a subset of those persons who otherwise would be residents have either applied for or have gained citizenship through whatever means. That is one, if you like, set or pool.

The next set—and this includes myself—are those who were born here but whose parents, one or both, were born overseas. Depending on the jurisdiction, the way in which national laws work in terms of the conferral or the application of citizenship is, in some cases, automatic through bloodlines—and bloodlines that go back past the parents to grandparents and great-grandparents—and is, in other cases, not enlivened or activated until you have applied. That is roughly another quarter. So those two quarters, together, make up half of the Australian population. But it is not to say that all of those people are captured, because you have to be a citizen. Conceivably, in the other half, or the other two quarters, even if you were born here and both parents were born here, depending on the nationality laws of—if I can use this term—the ancestral homeland, there might be some rights through descent. There might be some rights of citizenship available. It would be a very difficult thing—short of asking everyone through a census—to model quantitatively with much precision.

Mr RUDDOCK: And, after the section 17 repeal, those Australians who have opted to take out another citizenship—which could be another million or so.

Mr Pezzullo : Potentially. It is a challenging number to model. Short of doing a sort of doomsday survey where you would sort of ask everyone to stand in place to work it out, it is a very difficult number to ascertain. We know what our law is, but it is largely because of the interplay then with the laws of 198-plus other jurisdictions that represent the other sovereign nations on earth.

Mr DREYFUS: Just to confirm two things: it is certainly in the several millions of Australian citizens who have another nationality—

Mr Pezzullo : Who could have another nationality. We just do not know. We do not ask.

Mr BRUCE SCOTT: Another nationality or another citizenship?

Mr DREYFUS: I am using them interchangeably, but let us use both. So it is in the several millions. Also, a follow on from what you just said is that not only will the government not necessarily know but the Australian citizens themselves will not necessarily know.

Mr Pezzullo : Whether they have a second citizenship?

Mr DREYFUS: Yes.

Mr Pezzullo : Unless they have made active inquiries of the specific operation of the legislation of—and I will use this term loosely—'ancestral homeland', that would certainly be the case. If can make a comment, Mr Dreyfus, in 1948 the same issue, as it were, would have been applicable, because they were not contemplating dual citizenship at that point. Our population at that point was about 7½ million or thereabouts, before the immigration program boosted our population. Anyone could have been potentially liable to be captured by the relevant provision then, if they had taken up arms against Australia, so that would have been in the millions at that point too.

Mr RUDDOCK: But when people took citizenship, as I understood it, we had them renounce all other allegiance, and there was a point in time when we used to take their passports from them and return those to their country of first origin.

Mr Pezzullo : Indeed, Mr Ruddock, and the law was changed in the eighties, and, yes, right up until the seventies there was a requirement for renunciation prior to conferral of citizenship.

Mr RUDDOCK: Whether it was effective or not is another matter.

Mr Pezzullo : Indeed. But, within the Australian jurisdiction, it was a requirement.

Mr DREYFUS: Chair, we are clearly not going to finish this afternoon. The secretariat alone has prepared eight pages of possible questions that might be directed to the department, and I know that Senator Gallagher has some questions. I have some questions in addition to those that the secretariat has suggested, and many of my colleagues on the committee also have questions.

Mr Pezzullo : I am sorry, Mr Dreyfus, did you say 'eight pages'?

Mr DREYFUS: Yes. It is common for secretariats of committees to prepare possible questions.

Mr Pezzullo : Indeed. I just did not hear the number of pages.

Mr DREYFUS: Eight.

CHAIR: What we have proposed is that we will go in camera when we proposed to and, if we have not finished by 2.50 this afternoon, we will probably be back in touch and look to try to have an additional hearing on Monday, if that would suit people.

Mr RUDDOCK: But I really have a threshold question in relation one of the most difficult issues we have had to deal with. I would like consideration of this. If we are going to come back on another occasion, we will have time to review the transcript. It deals with the issue of constitutionality. We have had some very, very distinguished academics and others who have opined on those matters. I assume, maybe rightly or wrongly, that we may not get access to the Commonwealth's legal advice.

Senator GALLAGHER: We are going to ask though.

Mr RUDDOCK: I am sure people will ask. But I am assuming we probably will not—

Mr Pezzullo : I can assure you, Mr Ruddock, that that will not be a matter for me to decide.

Mr RUDDOCK: But I am very, very conscious that you might want to look at some of the advice that we have explored as to other potentially constitutional ways of achieving the outcome. I do not necessarily want the opinion, but I would like to have some indication as to why we think the proposed way we have dealt with this does achieve it lawfully. That is likely to engage a lot of questioning over time, and I would like you to be mindful that there has been a lot of evidence and you may want to come back.

Mr BRUCE SCOTT: Chair, I would like to support that because I think a lot of the questions that we could have had this morning relate to the substance of what Philip is saying. Once we can get that clear, we could then move forward, but I think it still has those constitutional issues that we need to perhaps—

Mr RUDDOCK: We need to try and understand.

Mr BRUCE SCOTT: Yes, understand, which help us go through the rest of the possible questions that follow.

Mr BYRNE: I have been following the advice. I would also back that up. I think that the evidence that has been presented to the committee does cause some concern. I have not heard anything that has satisfied me of the constitutionality of this particular provision, and I would certainly like to be satisfied. That would include some briefing from either the Solicitor-General or his or her designate so that we could be satisfied that this matter is constitutional.

Mr Pezzullo : Chair, if I may, we will attempt, as best we can, to explain the operation of the provisions. It is to be taken as read, but I will say it expressly, that the government is of the view that the bill is constitutionally sound and certainly defensible and constructed in the best way possible that has regard to both the separation of powers concerns, which I know have been raised both in submissions and also in evidence, and to other matters. There are two threshold questions. One is the disclosure or bringing forward of legal advisers on any matters, be they this or any other matter. That is normally a matter which is in the gift of ministers to contemplate and in this case, because of the constitutionality questions, I dare say the first law officer would want to express a view about that. I will see whether Ms Jones has anything further to add. On the question of, as it were—if I heard Mr Ruddock correctly—whether there are other ways to achieve the same result through alternative drafting, that would really be a matter for us to seek some guidance from ministers and to take on notice.

Mr RUDDOCK: I explored this matter with the professors from University of Sydney and a lot of people just told us, 'It's not on,' but where they have turned their minds to other ways I would like you to at least have those matters examined. It may be helpful in achieving the objective.

Mr Pezzullo : Put in those terms, Mr Ruddock, through you Chair, that might well be possible without expressing a view about the relative merits. We are not here trying to come up with different ways to achieve legal elegance. Our job is to provide advice to the government of the day and try to make it as defensible and as robust as possible, but as Mr Ruddock suggests, through you Chair, there might be some value in that being explored. I am really in the hands of the Attorney-General's Department and any views that the deputy secretary to that department may wish to express.

Ms Jones : I would confirm the position as expressed by Mr Pezzullo. Obviously in terms of the drafting and the construction of the bill, it has been done with a view to ensuring constitutionality. In terms of the issue of further advice that may have been provided, we can take that on notice to the Attorney-General and discuss it with him in terms of coming back to this committee.

Mr DREYFUS: I thank you, Ms Jones, for that indication and I ask both you Mr Pezzullo and you Ms Jones to ask your respective ministers, the Minister for Immigration and Border Protection and the Attorney-General, whether the advice of the Solicitor-General can be made available to this committee. I make that request on the basis that the chair of this committee has already revealed publicly the substance of that advice which is that the bill in its present form is constitutional. It is a matter of tremendous concern to the committee that we have had a succession of, as Mr Ruddock has described it, the most eminent of Australia's constitutional lawyers, certainly in the academic environment, coming before the committee to express very grave misgivings about the constitutionality of this bill ranging from Professor Williams saying in his opinion—and he prefaced it by saying it was an unusual opinion for him to express—that the bill was very likely to be found unconstitutional. Professor Irving this morning pointed to the separation of powers issues and Professor Saunders also this morning and in her written submission was pointing to grave constitutional problems. For the assistance of my colleagues, it is not the committee wants to sit as the High Court or to provide a definitive opinion on the constitutionality of this bill but we would not be doing our job as a parliamentary committee if we did not relay to the parliament in our report as best we can what those constitutional problems are. We are really seeking as much assistance as the government can provide on that point.

CHAIR: I point out to Mr Dreyfus, as the shadow Attorney, that when the bill was being discussed at the press conference, when it was going to be introduced, that the Attorney said:

It is also our obligation as a government to do so consistent with the rule of law and within the Constitution and after a very thorough process of development of this legislation which has involved consultation among others with the Solicitor-General, I am satisfied that this legislation achieves that objective as well.

Mr Pezzullo : Through you Chair, going back to Mr Dreyfus' question to me—I will not speak for Ms Jones; she can speak for herself—we will have to take his request on notice. Mr Dreyfus, I think you asked that we ask our ministers. I do not think you were asking me to engage with the views of those eminent legal scholars. I think you were saying that in your mind, because of the concerns they have raised, it is your request to officials that we seek authority from our ministers to yield that advice to the committee. Is that right?

Mr DREYFUS: That is right. But also I would in no sense cut across Mr Ruddock's request, which is a slightly different one, which I endorse and which Mr Byrne endorsed—that is, to pick up on the very helpful submissions and oral evidence that we have received where various of the eminent academics have made suggestions as to what would make this bill constitutional. In other words, how to achieve the desired effect—even if it only be to strip terrorists, in the narrow sense, of citizenship—how that can be done in a constitutional manner?

Mr RUDDOCK: As I would have expressed it when I was in practice, it is simply a matter of more abundant caution.

Mr BRUCE SCOTT: Well done.

Mr Pezzullo : We will take those matters on notice. Out of deference, Ms Jones works for the Attorney, I do not.

Ms Jones : As I had indicated, I am happy to take that on notice and consult with the Attorney-General.

Mr DREYFUS: I have what might be regarded as preliminary matters that might conveniently be dealt with today rather than whenever we reconvene. I should alert those officials here that that may not be Monday. The Senate is sitting even though the House proposes to have condolences. It might be that it is later in the week. We just do not know.

CHAIR: We will do our best to make a Monday. We see no reason, at this stage, why it would not be Monday, but we will, of course, be in touch with you on that matter.

Mr Pezzullo : We will be guided by the committee.

Mr DREYFUS: The first matter I want to raise goes to the fact that some very, very firm criticisms have been expressed about a number of aspects of this bill. First to you, Mr Pezzullo: has the government considered all of the submissions that have been made and the evidence that has been given over the last two days?

Mr Pezzullo : I will not speak for all of the officials at the table, and we support the government with our advice and our support otherwise. I have certainly read every submission. I thought that it was a conscientious thing to do. It took a long time, and some of it was a bit esoteric for an arts graduate like me, but I certainly have seized myself of all the matters contained in the submission. I tried to listen to all of the testimony as well.

Mr DREYFUS: Some of my colleagues here in the committee have suggested that there may in fact be mistakes that have been made in the drafting of the bill. One of the matters that have been pointed to is the inclusion of a conviction for intentionally damaging or destroying Commonwealth property as a ground for cessation of citizenship. Are you able to identify anything that the government is already prepared to say is a mistake or that the government does not wish to proceed with? I ask that for a very practical reason. It is to avoid this committee having to devote what might be considerable time in further hearings and what might be a lot more time in report deliberation. If it is the case that the government is not proceeding with any of the bill, can you inform us now?

Mr Pezzullo : I do not have any such guidance to hand for the committee or for you particularly, Mr Dreyfus. I read it in the submissions, but I also listened carefully to Professor Williams on the section 29 matter. I know there is critique and there are concerns about other matters, but I did not hear any other references to what might be considered to be, in the view of some at least, misdrafting or whatever. You might wish to illuminate me on matters beyond section 29. I am happy to speak to the section 29 matter—the so-called graffiti matter—if you wish. Just to be clear, you are giving me the chance to fess up before we go through the next 45 minutes or so? I am happy to do so on 29, but I am just not aware of any other concerns that there might be in front of you.

Mr RUDDOCK: The concerns are expressed in terms of typographical mistakes in the explanatory memorandum, which may have suggested that it was drafted in haste, and, therefore, you could assume that there were some other errors. That is the way that I interpret—

Mr Pezzullo : I do not know if that has ever happened in Federation history. If that has happened on this occasion for the first time, we will address it consistently with reading the committee's report. On the section 29 matter, if I may—I do not know, Mr Dreyfus, if you are wanting me to go to the substance of that—(a) I am not aware of any other matters that might be, if you like, in the bucket of potential misdrafting or things that need to be, as it were, tidied up, which of course the scrutiny—

Mr DREYFUS: If I can just stop you. I am happy to have you offer some remarks about section 29, but the point is a broader one. It is not just section 29. A number of the submissions have drawn attention to the broad reach of this bill. Particularly in section 33AA a broad range of conduct appears to be caught—some of it not very well defined, some of it not defined at all and some of it difficult to interpret. If the government has formed a view that it is going to proceed down some different track, I am inviting the government to indicate now what that different track might be in order to save the committee unnecessary work. It is a complicated enough task as it is.

Mr Pezzullo : I understand the point, Mr Dreyfus. Through you, Chair: I will leave section 29 to one side, because that is the only matter where I think there is cause for a degree of explanation to be put forward—and the committee will make of that what it will. But I do not have any guidance from any of the ministers with direct or indirect responsibility about any specific matters that they are so minded to address in that way. They are, of course, looking forward to the report of the committee. And, subject to the views that they might form, based on reading your report, they might well come to a view that elements have to be adjusted. But I do not have any advice for this committee otherwise.

Mr DREYFUS: Right. So at this stage the committee should proceed on the basis that the government is determined to proceed with all elements of the bill?

Mr RUDDOCK: Before we draw conclusions about that, the difficult issue is, and I come with a strong view about the importance of this legislation and why we need it—

Mr DREYFUS: Shared by us all, Mr Ruddock—

Mr RUDDOCK: and I have been particularly anxious about the provisions that go to damage to Commonwealth property, particularly graffiti, and the argument that that could potentially lead to citizenship revocation but for a potential ministerial intervention, which is in fact discretionary. If you are going to give some explanation of that matter which would help us to understand why it is drafted in that way, I would find that helpful.

Senator BUSHBY: Could I also say, in response to the comment by Mr Dreyfus, the government referred this bill to this committee with a view to examining the bill to ensure that it worked as intended and to identify unintended consequences. I think that demonstrates a willingness to listen to where there might be issues that need to be addressed, with a view to taking those into account.

Mr DREYFUS: My comment was just for your assistance, Mr Pezzullo, as prompted by a comment that the chair has made a couple of times, which is that the inclusion of section 29 may be a mistake.

CHAIR: I said 'may' because there are drafting errors that are made. I said it may not be too. We are happy to hear from you, Mr Pezzullo.

Mr Pezzullo : Could I commence by reiterating that I have no instructions or guidance as to what attitude the government is going to take in relation to the report that you bring forth. As a number of members have said, the bill has been referred to this committee for a particular purpose, for scrutiny, and legislation is, on the whole, always improved through scrutiny. I assume that ministers will take a balanced view of matters—

CHAIR: And, Mr Pezzullo, this committee made over 100 recommendations on four pieces of legislation last year, which were all recommended by the government. So I think it is a fair point you are making.

Mr Pezzullo : I do not want to speculate about future action, whether ministers accept, modify or reject your recommendations. The matter is for ministers; we will advise them and it will be for them. On the question of damage to public property, I did note in the submissions, and I note that Professor Williams and, I think, a number of others drew attention to it: there is an anomaly, which is the strongest form that I wish to use in these hearings. It is referenced in the schedule in the explanatory memorandum as distinct from the actual provisions of the bill, where it is mentioned in one place and not another. Let me explain the rationale for its potential inclusion. The damage to public property provisions under section 29 of the Crimes Act, which carry a maximum penalty of 10 years at the higher end, certainly would not be intended to capture issues of graffiti. In any event, the starting point, because of the nature of the legislation, has to be a connection to a rupturing of one's allegiance to Australia in any event. Even if graffiti were captured—and I think the common sense view would be that it probably is something that should not be captured—it has to be graffiti that is connected to the very purpose and object of the legislation, which is about a rupturing of your allegiance to Australia.

Mr DREYFUS: Can I just stop you there and ask if you could identify the provision in the bill that provides that link.

Mr Pezzullo : The whole purpose of the legislation, on reading the construction of the bill, is about how people come to be in a situation where they no longer have allegiance to Australia.

Mr NIKOLIC: It is about terrorists, not graffiti artists, as I understand it.

Mr Pezzullo : Sorry, Mr Nikolic?

Mr NIKOLIC: It is about terrorists and terrorist acts and offences rather than graffiti artists.

Mr DREYFUS: I have some other preliminary matters, but I am concerned to clear this out of the way, Mr Pezzullo. The proposed section 35A says that a person ceases to be an Australian citizen if the person is convicted of an offence mentioned in subsection (3)—which is a list of offences—that they cease to be a citizen at the time of conviction and, on its face, it is an offence against section 29 of the Crimes Act 1914. There is no qualification to it whatsoever. So how do you get the qualification you have put on it, that the automatic cessation of citizenship is somehow to incorporate in it—I know not how—a reference to allegiance to Australia?

Mr Pezzullo : The only way I get there is merely by the application of common sense. That might well be a matter that the committee might want to turn its mind to, and it is something that I am sure the government would be keen to actively consider.

Mr RUDDOCK: Using the same words I put before, for more abundant caution we might recommend that you look at it.

Mr Pezzullo : Indeed, Mr Ruddock. I think when the provision was looked at, it was looked at in the context of a symbolic attack—I do not want to give our adversaries any sort of aid and assistance; that would be counterproductive—a visible, symbolic, terror-inducing attack, say, on the parliament or other buildings of symbolic significance. From that abundance of caution point of view, it was thought necessary to at least examine that. You make the point advisedly, Mr Dreyfus—and it is a point well made and well taken—that to get to that point of distinction and discernment other words might need to be imported. It is not for me as an official at the table to do redrafting. It is a matter than the committee might want to turn its mind to.

Mr DREYFUS: Surely, someone who attacks the parliament as an act of terrorism is going to be charged with a terrorist act.

Mr Pezzullo : No doubt they would probably get knocked off on the basis of all the other preceding potential crimes that are listed there, and it might well be that the damage to property is the least of anyone's concerns.

Mr DREYFUS: Can I suggest to you that they just would not be charged with that at all. They would be charged with the serious terrorist offences they have committed.

Mr Pezzullo : I would not care to speculate on what they might be charged with. I could call on my learned friend and colleague from the AFP, who might wish to bring forward a view. The prosecutor would have a view. It is very hypothetical. The graffiti point is understood, and it is something that the committee might wish to turn its mind to in terms of potential rectification.

Mr DREYFUS: This might be a question for Ms Noble. The chair of the committee wrote two letters to your minister, Mr Dutton, dated 7 and 13 July 2015, seeking a range of information. You have provided a letter, which has gone on the public record, and a bundle of documents which you have described as a classified submission. For the assistance of both the committee and all those who are interested in the committee's activities, I will give you my destination: I want to get to this being made 'not confidential'. Can you explain to me why attachment C, which you have described in your letter as, 'Information that is publicly available about other countries' laws in relation to citizenship, including their laws in relation to dual citizenship and loss of citizenship,' should be a confidential document?

Ms Noble : Certainly. Prior to the hearing, we were asked by some of the members particularly about information pertaining to certain countries. As you are aware, in that attachment C we have given you information about 10 countries as well as our close allies—the UK, the US, Canada and New Zealand—much of which is sourced from public sources. But the reason it is classified is that it is the list of countries that we have chosen to provide to you, which, we feel, if that list were to be public, would give an indication of which countries we are most concerned about and interested in. If the bill is eventually enacted, it would reveal, if you like, what countries we have already done research on, because we think it might apply to real cases. That is our concern in providing the whole document publicly, because it is not every country in the world; it is a careful and smaller selection of some countries.

Mr DREYFUS: It is a statement of publicly available law about a number of countries.

Mr Pezzullo : As Ms Noble said, the content might well be publicly sourced, although whether or not we have other information to hand is something that I am willing to potentially share in an in camera session, but the content of that list is sensitive.

Mr DREYFUS: Could I ask, just in relation to attachment C for the moment, you to consider how that can be made publicly available and come back to us when you—

Mr Pezzullo : I am happy to consider it. I am not instinctively seeing how that could be easily done without breaching the very principle or concern that Ms Noble just put forward. I am happy to consider it—I will take it on notice and consider it, but I guess I am just foreshadowing—

CHAIR: And can I say I understand your caution.

Mr DREYFUS: Attachment B is information provided by Canada, New Zealand, the UK and the US about their citizenship laws, including their laws in relation to dual citizenship and loss of citizenship, which you have identified in your public letter, Ms Noble, as countries that you assert the bill is going to bring Australia's citizenship laws closer to. Again, this is just a statement of law in Canada, New Zealand, the UK and the US. Is there any reason why that cannot be made publicly available?

Mr Pezzullo : I am advised—and I have seen that list—

Mr DREYFUS: It is not a list; it is just a restatement of the law.

CHAIR: We need to be careful. We will go in camera—

Mr Pezzullo : We could get to a point where, through the Socratic method, I guess, if we do it in public, with very minimal joining of dots you could discern all the material that is in those attachments. That would defeat the very purpose of Ms Noble having provided them to the committee under the cover of a classified letter.

CHAIR: We will be going in camera in a minute.

Mr Pezzullo : I was about to seek your guidance on that, Mr Chair.

CHAIR: We are happy to discuss that in camera.

Mr Pezzullo : Out of respect for the question that was asked, to be particular about attachment B, it does include material that goes beyond publicly researchable material on the web because it involves a summary of consultations that we have undertaken with other jurisdictions in confidence, whose trust we do not wish to breach.

Mr DREYFUS: I would not ask you—

Mr Pezzullo : Of course you would not.

Mr DREYFUS: to reveal anything that has been provided by other countries in confidence to Australia. The department of immigration is the expert department on these citizenship matters and I am looking for material that can be made publicly available so that we can see the context in which the Australian bill is being put forward. You do not have to answer now.

CHAIR: I would assume that, if people are interested, they can access that public material anyway, so let's put this all in perspective.

Mr DREYFUS: I am trying to harness the good work that has been done by the department to get—

Mr Pezzullo : Through you, Chair, I think there is a reasonable halfway house, which I find difficult in relation to one attachment but I do find easier to come to a positive view about in relation to attachment B—which I think you are reading from, Mr Dreyfus—and that is to say, as Ms Noble's letter makes clear, we have looked at a number of friendly jurisdictions, if I can use that term. I am sure there will be a way to redact the relevant material that contains their commentary on their internal processes—because that was given to us in trust—and reduce it down to publicly available material as to how their revocation or loss provisions work. I am sure that a recut version of, I think, from memory, attachment B can be provided accordingly.

Mr DREYFUS: The last attachment relates to some of the questions that were put by the chair on behalf of the committee that go to—

CHAIR: We will be going in camera, Mr Dreyfus.

Mr DREYFUS: convictions that have been recorded in respect of the offences listed in section 35A. You have provided some data in respect of answering those questions as to what offences have been committed and what convictions have been recorded going back in time—and this is relevant to the committee having been asked to consider section 35A being made retrospective. The Parliamentary Library has provided to me, from work done by them on the annual reports of the Commonwealth Director of Public Prosecutions, just to take it as an example, prosecutions brought in respect of 'intentionally damage or destroy Commonwealth property'. They advise me that since 1990 approximately 430 prosecutions have been brought. Is that the same source that has been used for the last two pages of the bundle of documents that we have been asked to keep confidential?

Mr Pezzullo : I would not have a clue. I will take advice on that. I suspect not. I have not seen a reference.

Mr DREYFUS: The reason I am asking is that prosecutions in Australia are public, convictions in Australia are public, sentences in Australia and the disposition of courts are public. It is part of our rule of law. It is all available. It is all reported on very frequently by the media, and it is reported on, as well, in annual reports of the Commonwealth Director of Public Prosecutions and further reported on in reports by the Australian Institute of Criminology. So there is a wealth of public sources. I am trying to get to why that should be kept confidential.

Mr Pezzullo : I will take advice on that from Ms Noble or others.

Ms Noble : I am advised that that document that you listed was not the source. I will need to take on notice precisely what was the source of that information, but it was aggregated for the purposes of providing to the committee from a number of agencies at this table. I can take that on notice and get you more detail.

Mr DREYFUS: Again, I stated my purpose at the outset, which is to get as much as possible, particularly information that is already in the public domain, put in a form that is able to be looked at by the public. Can I say, and this does go to section 29, I am advised by the Parliamentary Library some 430 prosecutions since 1990 drawn from the reports of the Commonwealth Director of Public Prosecutions. This is something the media went to straightaway after the bill was produced in the parliament by your minister. The media the very next day reported the case of a Mr Gareth Smith, who lives in Byron Bay and is a dual British Australian national who was convicted in 2000 of damaging Commonwealth property after he spray-painted 'shame Australia, shame' in hot pink across the front of the Australian parliament. He is just one case. But the Commonwealth Director of Public Prosecutions reports indicate a whole range of other cases that have been prosecuted under this section, including someone who destroyed tax documents in order to avoid prosecution for tax fraud. And I could go on.

If the government, as Mr Pezzullo has confirmed, is pressing the reference to this committee that the committee is to advise on whether anyone ever convicted in Australia of intentionally damaging Commonwealth property should be retrospectively stripped of their citizenship, it would be of great assistance to the committee if we could have that material in a public forum. The same goes for the long list of other offences that the department was asked to provide information about—that is, who in Australia today was convicted at a previous time of those offences; what is their current situation; are they in Australia; were they sentenced to lengthy periods of imprisonment or short periods of imprisonment; or, in the case of intentionally damaging Commonwealth property, given a good behaviour bond? It is that detail that the committee is seeking and that was the purpose of the chair's letter to the department, not merely that we be given some version of something that is publicly available but rather that the department assist by providing a document that can be publicly considered.

Mr Pezzullo : Just as you were making that point, I had a quick look at attachment D. What I cannot discern just on the face of it, Mr Dreyfus, is whether the reason for the classification heading is a function of the right-hand column, which has got narratives about particular matters. Whether that, as you rightly say, can be derived just by looking at judgements and other court documents or whether there is other material that has been put in the by ourselves or partner agencies, that itself is protected. So as Ms Noble said, she will take that on notice. If it is the will of the committee to have another version of that table, something that is publicly referable, you are absolutely right. As you all know, we all understand how court judgements work and how the facts and the considerations that go down into both conviction and sentencing are publicly available. I am sure there is another way to construct that table to render it completely safe.

I do apologise because I was looking at that table as you were talking about the retrospectivity point. The point about looking at historical section 29 cases including the—I did not fully hear the reference—reference to hot pink graffiti I think you said—

Mr DREYFUS: That was Mr Gareth Smith, aged 72, who lives in Byron Bay.

Mr Pezzullo : Well that gets us to the question of whether the provisions as they are in the bill would operate retrospectively. At the moment, of course, they do not. It is a matter, as you rightly say, that has been put before this committee. I just want you to clarify what you are asking me to take on notice. You want to, if section 29 remains on foot in the way that is currently in the legislation and the committee is turning its mind to retrospective application, have a sense based on publicly available material of how many persons potentially are captured if 29 remains on foot in its current state or whether the government is so minded to restrict its operation to the more serious egregious offences. Is that the point of going back through that history?

Mr DREYFUS: No. It is as the chair's letter, the two letters of 7 and 13 July, made clear; we sought a range of information not all of which has yet been provided so I would ask that you take that on notice the rest of the requests we would like fulfilled. But specifically, we sought information about the number of Australians convicted of the offences listed in section 35A up to now, because they are the Australians who will be the subject of retrospective operation of section 35A if the government were determined to legislate that, which you have confirmed, is the government's present intention. It is to give proper consideration to that point that we seek information that is publicly usable about the number of Australians who have been convicted and their current situation where that is available.

Mr Pezzullo : I understand the point now. I just want to make absolutely clear for the purposes of the Hansard, Mr Dreyfus, you said that I have confirmed that the government's intention is to go retrospective. If I have misspoken then I do apologise. I do not think that I said any such thing.

CHAIR: No decision has been made.

Mr DREYFUS: Sorry if you misunderstood me. It is the government's current request to this committee—

Mr Pezzullo : For the committee to look at it.

CHAIR: Yes.

Mr DREYFUS: to advise the government on whether there should be retrospectivity applied. We want to get as full a sense as possible of what the likely impacts of that might be, on how many people it might impact and what might be the considerations that the government should bring to bear in deciding whether in fact to go ahead with retrospectivity for this.

Mr Pezzullo : I am clear on the request now, thank you.

Mr NIKOLIC: On the broader point of relative seriousness of offences as it relates to damaging Commonwealth property, we had a number of submitters come and talk to us about everything from the type of graffiti offences you heard earlier through to someone placing explosives, let's say, at Holsworthy Barracks. Mr Pezzullo, outside of this proposed law, is there a process within your department or indeed within the broader Australian interagency where there is some consideration given? How is consideration given to relative seriousness to ensure that someone who spray-paints something hot pink is not treated in the same way by the minister as someone who places explosives at Holsworthy Barracks? If that sort of deliberation exists, would that then link in to part 7 of this bill where the minister can give notice but can also consider whether to rescind, exempt or take some other action depending on the advice regarding the relative seriousness of offences?

Mr Pezzullo : I think Ms Jones wishes to make a point on this as well so I shall yield to her in the moment. On the larger question of how investigations are conducted and then decisions made about the bringing forward of briefs of evidence and consideration of prospects of prosecutorial success, I really need to defer to my colleagues from the Attorney-General's Department, the Federal Police and others. For criminal matters, there are no criminal powers that come to my department or to the Australian Border Force as a consequence of this legislation.

Mr NIKOLIC: But in providing advice to the immigration minister, say, to deal with the notice of some sort—

Mr Pezzullo : If you are going to the capacity for a minister under 33AA to rescind the notice, in effect not to issue it in some circumstances—I heard the exchange involving the deputy chair yesterday—and to render, if you like, null and void the condition of loss of citizenship, I can very advisedly say that with our interagency colleagues we would have a lot of regard to the nature of the conduct. Spray painting is certainly a different category from blowing things up. But more generally, in terms of how matters are dealt with under the criminal code, I would really defer to the assistant commissioner or to Ms Jones or other colleagues. I do know because I did hear from Ms Jones and I sort of slightly cut across her. I do apologise.

Ms Jones : In terms of assisting Mr Dreyfus in seeking that additional information, obviously in light of the letter that you wrote to agencies, officers in my department have been going through that request. We think we will be in a position very shortly to be able to provide you with the information in the form that you have requested.

CHAIR: On that note, I will suspend this public hearing. We are going to go in camera given the need for us to do so at this stage. We look forward to coming back to the public hearing with the officials hopefully on Monday but will be in touch on that.

Committee adjourned at 16:07