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Tuesday, 1 December 2015
Page: 9474


Senator McKIM (Tasmania) (18:23): Today the Senate is being presented with the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, a bill that provides for three new ways by which a person who is a dual national can cease to be a citizen of our country. This is a reactionary bill that seeks to provide the Minister for Immigration and Border Protection with the power to, in effect, remove Australian citizenship from dual nationals if they meet the criteria established in this legislation.

The Greens believe that citizenship is too precious a gift and confers too many important rights to be effectively stripped at the whim of a government or at the whim of a minister. We believe that this legislation runs counter to the rule of law, implies a lack of confidence in Australia's judicial system and does not provide natural justice to potentially impacted Australian citizens. It is worth pointing out that this is an Tony Abbott era bill being continued by the Turnbull government, as have so many other policy settings, such as emissions reduction targets, fossil fuel subsidies and the detention of women and children seeking asylum. This legislation owes far more to the government's desire to be seen to be doing something to respond to the domestic and international challenges of violent extremism than it does to a genuine desire to make Australia and Australians safer at home and overseas. In fact, it is strongly arguable that it allows for the minister to make the world, and therefore Australia and Australians, less safe.

The Greens believe that the best place for Australian citizens who are violent extremists is in custody here in Australia. We have a duty to people from other nations and to our loved ones who are living and travelling overseas to ensure that any of our citizens who commit acts of violent extremism are dealt with by the justice system here in Australia. They should be charged, convicted and locked up in secure Australian prisons where they can do no further harm. This can be achieved under existing provisions of the Criminal Code Act 1995, including divisions 101 and 117. Amendments to the Foreign Evidence Act 1994 in made in 2014 made it easier to obtain admissible evidence in regions that are in severe states of conflict and where there is no functioning government or where the legitimacy of the government is not recognised by Australia. This makes successful prosecutions more likely.

If this bill passes, Australia will be able to effectively export people labelled as terrorists to other countries that are less able to contain the threat they pose—to export violent extremists into a global marketplace of the displaced, the disenfranchised, the radicalised and the violent. This would make the world a less safe place for all its citizens, including Australians. It should be self-evident that we cannot make Australia safer by making other countries more dangerous, but that is exactly what this law provides for. Violent extremism does not respect or distinguish between national borders, and if there is one lesson we have learnt from the tragic events in Paris, Beirut and Bamako it is that making the world safer from violent extremism requires a high level of international cooperation. This bill is the antithesis of that and a prime example of Abbott-era unilateralism and the kind of machismo that Prime Minister Turnbull has committed to end.

Washing our hands of responsibility for Australian citizens who are violent extremists is grossly irresponsible in a period of what should be heightened international cooperation to meet the challenges of providing safety to our people in an often dangerous world. This legislation will erode rights, principles of law and natural justice that have existed for centuries. It has the potential to disrupt the lives of literally millions of dual nationals who risk losing their citizenship at a stroke of the minister's pen. It has been rightfully condemned by the Law Council of Australia, Australian Lawyers for Human Rights, the Federation of Ethnic Community Councils of Australia, Civil Liberties Australia, the Centre for Comparative Constitutional Studies and many other organisations and eminent legal minds.

This is an extreme and radical piece of legislation that does not contain necessary safeguards. It establishes a two-tiered citizenship system in which the consequences of the crimes or actions of a dual national are different from those faced by a sole Australian citizen who commits or carries out the same crimes or actions. This flies directly in the face of the long-cherished concept in this country that every Australian should be treated equally under the law.

Professor George Williams from the University of New South Wales wrote about this legislation in the wake of the recent Paris attacks and after confirmation that the government would accept the amendments moved by the Joint Committee on Intelligence and Security. He said:

We run the risk of taking action that undermines the very freedoms we are seeking to preserve from terrorism. In doing so, we may hand those who would harm us and our freedoms an undeserved victory.

He continued:

The re-drafted bill extends to people who commit a terrorist act or support terrorism, such as through financing, training or recruitment. It applies to these people without discriminating between a terrorist and a freedom fighter. This means—

Professor Williams continued:

… that citizenship could be revoked from dual nationals who support something like Nelson Mandela's fight against apartheid in South Africa, or the independence movement in East Timor.

He also said:

… the law will also apply to people who have been convicted of nothing more than entering an area declared by the government to be a no-go zone. The person may not have harmed anyone, and indeed may have entered the area against the wishes of the government merely to visit friends or to conduct business.

The Greens share the concerns outlined by Professor Williams.

Labor's promise to scrutinise this bill belies the fact that, as they so often are, they are in lock-step with the federal government on this issue, I might add, as they are on many other important issues in this country because they are desperately afraid of being painted as weak on national security. Labor's claim that they would scrutinise this bill disintegrated on Monday, when the so-called opposition waived through amendments after doing a backroom deal with the immigration minister rather than properly scrutinising the bill in the House of Representatives. The Greens will not succumb to the cheap fearmongering and lack of transparency of the old parties.

Certainly, the threat of violent extremism is very real, and governments and parliaments have an obligation to ensure that our laws protect our citizens to the highest possible degree. But while we are constantly being told that we need to trade away our hard-won civil rights and freedoms in order to increase our security, the unfortunate truth is that there is often little or no evidence that we are being made any safer despite losing rights that so many Australians have given their lives, in our country's history, to defend.

Since the most recent counter-terrorism white paper was handed down in February 2010, our legislative responses to the threat of violent extremism have become increasingly reactionary, ad hoc and politicised. Too little attention has been paid to the long-term strategic direction of our internal security and even less to the steady erosion of the freedoms so many of us cherish as Australians. New laws, which inevitably erode civil rights, have often been drafted in the aftermath of a one-off incident or a foiled plot and sold to the Australian people as necessary to deal with the latest emergency.

The net result is broader, sweeping powers for Australia's security, intelligence and police agencies but very little in the way of effective oversight, analysis of what works or fine-tuning. At the same time as counter-terrorism bodies are awash with new money, the office of the Independent National Security Legislation Monitor is running on a shoestring budget and is still analysing and reviewing laws that have already come into force.

Since 2002, Australians have faced an ever-changing landscape of laws that we have been told are designed to protect us against terrorism. In that time, many dozens of legislative changes have been made in the name of counter-terrorism and national security and these changes have almost all but whittled away hard-won rights and freedoms in this country. These are unprecedented developments in Australia's peacetime history, and the Greens believe we owe it to our country and we owe it to our people to have a serious rethink.

We need to create better overall law in a more planned and strategic way, where security and safety are properly balanced with the deeply held Australian values of freedom and a fair go. In the same way that we have an established white paper processes for tax, agriculture, defence and Northern Australia policies, a white paper process would allow for the development of our response to violent extremism in a more transparent, evidence-based and strategic way. We could potentially call this a 'blue paper' process.

Just like defence strategy, this area of policy development calls for strategic thinking and planning rather than knee-jerk reactive law-mongering. Such a process would, of course, involve the input of our security agencies but it would also give experts from a number of other fields the chance to have a meaningful say. The 'blue paper' process could include an examination of the effectiveness of the dozens of legislative and administrative changes made since 2002. It could analyse what has worked and what has not, both in Australia and internationally. The first 'blue paper' could also examine the most effective strategies to prevent radicalisation in young people and put social cohesion front and centre in our response to this challenge. There should be an opportunity for public feedback to give Australians a meaningful opportunity to own the outcome. History shows that individual freedoms are very difficult to win back once they are lost. The Greens believe better planning of the difficult balance between safety and security on one hand and freedom and rights on the other would be much better served by a formal 'blue paper' process.

On 24 November 2015, the new Prime Minister Turnbull said the following about Australia's reaction to terrorism:

Our response must be as clear eyed and strategic as it is determined.

This is not a time for gestures or machismo.

Calm, clinical, professional, effective.

That's how we defeat this menace.

The threat from ISIL is a global problem that must be addressed at its source, in the Middle East …

He also said about ISIL:

By most measures, however, ISIL is in a fundamentally weak position.

We must not be fooled by its hype. Its ideology is archaic, but its use of the Internet is very modern.

ISIL has many more smartphones than guns, more twitter accounts than fighters.

Compare that very sensible, very restrained language to the minister's second reading speech on this legislation:

We face a heightened and complex security environment. Regrettably, some of the most pressing threats to the security of the nation and the safety of the Australian community come from citizens engaged in terrorism. It is now appropriate to modernise provisions concerning loss of citizenship to respond to current terrorist threats. The world has changed, so our laws should change accordingly.

The Prime Minister's statement on national security is contradicted by the extreme measures contained in this bill. It is not 'calm' to drastically change our citizenship provisions based on a terrorist group which the PM himself says is in a 'fundamentally weak position'. It is not 'clinical' to create a two-tiered citizenship system, where the consequences of the crimes of a dual national are considered differently from those of a sole Australian citizen. It is not 'professional' to make punitive decisions outside of the courts and to apply such punishments retrospectively. But most of all there is no evidence whatsoever that any of these changes will be effective in their stated aim of making Australia and Australians safer.

The legislation has, thankfully, been heavily amended since it was first presented to this parliament. While the amendments make this law less bad, and most of them are welcomed by the Greens, the legislation is actually irredeemable. We welcome the fact that the amendments will improve notification requirements, narrow the range of prescribed offences and raise the age of children to which it could apply. But they do not go nearly far enough to address the massive flaws in this bill. It is clear that the Parliamentary Joint Committee on Intelligence and Security, which examined this bill and recommended that it be passed by this parliament, has ignored expert evidence and shirked its responsibilities, despite the amendments that it recommended.

One amendment which the Greens have concerns about is the amendment that will allow for the stripping of someone's citizenship for offences committed up to 10 years ago. This amounts to double punishment. Once someone has served their time for a crime, the government should not be able to come back and apply a secondary punishment. To do that is a breach of one of the fundamental principles of our legal system and could well prove to be unconstitutional. This bill relies on the legal fiction of automatic renunciation which will be based on intelligence and unable to be tested in court until after someone has lost their citizenship.

This week in the other place we saw Labor once again cave in to the government and support further amendment to this bill, purportedly made to improve its chances of surviving a High Court challenge, despite Labor admitting it had not seen the Solicitor-General's advice upon which that amendment was made. That was perhaps the final chapter in a process which has been utterly shambolic right from the very start. This legislation was first floated by extremist right-wing backbenchers from the coalition parties. It was debated in cabinet; it was unceremoniously leaked from cabinet. It was introduced in the other place with apparent typographical errors and inconsistencies. It was heavily amended by the closed-shop Parliamentary Joint Committee on Intelligence and Security, on which neither the Greens nor the crossbenchers are represented. It was still found to be inadequate as recently as last week by the Solicitor-General. Despite all the above issues, it was waved through the Reps in the final week of parliament, with no scrutiny at all by the Labor Party.

The final point I want to make is this. If we are serious about tackling radicalisation and violent extremism, we have to address its causes. Building a cohesive, tolerant and inclusive community in Australia should be the government's top priority to protect Australia's much-loved multiculturalism and set the preconditions in Australia that minimise radicalisation. Any time the government are out telling the Australian people that they need to strip away more freedoms and engage in punitive actions and that this can make Australia safer—despite the fact that there is zero evidence that this legislation or laws like it will make Australia any safer—they are not focusing where their focus should be, which is on building a cohesive, tolerant and inclusive community in our country. Time will prevent me from speaking longer on that issue at this time, but that is where the government's focus should lie, rather than on pressing on with Tony Abbott-era legislation which unwinds yet more of the rights that so many Australians have fought, and at times died, to defend.