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Tuesday, 1 December 2015
Page: 9479


Senator LUDWIG (Queensland) (18:42): I rise to speak on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. Labor has consistently supported updating the Australian Citizenship Act to provide for the loss of citizenship for dual citizens fighting with terrorist organisations such as Daesh. Labor has worked with the coalition on this bill in a bipartisan manner to seek to ensure that it has no unintended consequences. Labor recognises that citizenship is one of our most fundamental rights. Labor will not support any legislation that clearly would seek to erode the fundamental importance of citizenship in our nation or undermine the status of our country's many dual nationals.

This bill has been examined by the Parliamentary Joint Committee on Intelligence and Security, and what we now have is an amended bill that has been heavily scrutinised and revised. It is a much different bill than the one that was introduced. The parliamentary joint committee has certainly done its work. It made substantive recommendations to ensure that the bill had the proper outcome. Make no mistake, though; this is not a blank cheque that Labor is offering the coalition. On the issue of national security, Labor and Mr Bill Shorten have worked constructively with the government. There is nothing more important than keeping the Australian people safe, and this issue must be kept above politics.

The Australian Citizenship Act has always contained a provision for the automatic loss of citizenship for any dual citizen taking up arms against Australia. This provision is based on a very old traditional concept of serving in the military of another country. In addition to this, the Minister for Immigration and Border Protection has the discretion to cancel a dual national's Australian citizenship where they are convicted of fraud relating to their application for citizenship or of a serious offence which was committed before the person became a citizen.

This coalition bill in its original form sought to amend the Citizenship Act to provide for three new ways a dual citizen may automatically lose their Australian citizenship. The first is renunciation by conduct where a person engages in conduct inconsistent with their allegiance to Australia, specifically conduct relating to terrorism and foreign incursions. The second is renunciation due to fighting for, or being in the service of, a declared terrorist organisation outside Australia. The Minister for Immigration and Border Protection will make a declaration of terrorist organisations on the advice of security agencies based on which of these organisations would have a direct threat or issue affecting allegiance to Australia. The third is renunciation due to a conviction for a terrorism related offence.

The Citizenship Act currently provides for loss of a dual national's citizenship only in very limited circumstances. Labor believes that a carefully considered expansion of these circumstances is required to protect Australia's national interest. It is evident that there is a need to introduce additional measures to adapt to new and emerging security threats. A key concern for governments is the threat that home-grown foreign fighters pose to domestic security upon return to Australia. This bill seeks to address the challenges posed by dual citizens who participate in terrorism related activities and who represent a serious threat to Australia and our national interest.

The Parliamentary Joint Committee on Intelligence and Security handed down its report on this bill on 4 September. Labor supports the recommendations of the committee as they have substantially improved the bill put forward by the government. The government has ceded to the recommendations of the committee and, as a result of the 27 recommendations, Labor will support the amended bill, which creates two scenarios under which a dual citizen may lose their Australian citizenship. The first is if they are convicted of a terrorism offence in Australia. The second is if they are currently overseas engaging in terrorist activities or collaborating with a declared terrorist organisation, like Daesh. The recommendations of the committee significantly narrow the set of circumstances under which a dual citizen may lose their citizenship and represent a far more targeted approach than that which was originally proposed by the government. It is there to ensure the fair and proper treatment of our citizens.

Renunciation of citizenship by conduct may occur only if a person is: engaging in international terrorist activities using explosive or lethal devices; engaging in a terrorist act; providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act; directing the activities of a terrorist organisation; recruiting for a terrorist organisation; financing terrorism; financing a terrorist; or engaging in foreign incursions and recruitment. The committee's recommendations ensure the bill represents an appropriate updating of the existing legislation.

The original provision in relation to 'conduct inconsistent with allegiance to Australia' will now apply only to dual citizens who have engaged in the conduct offshore or who engaged in the conduct onshore and are now located offshore. This amended provision seeks to ensure that our national security agencies have the means to prevent those who have been involved in terrorism-related conduct from returning to Australia. Further, the minister will be required to consider a set of criteria before declaring a terrorist organisation for the purposes of the act. The declaration of the organisations will be a disallowable instrument, so the Greens will be able to have their say on this issue as a disallowable instrument.

All of the provisions contained in the bill will apply only in the event that the minister receives an adverse security assessment in relation to the dual citizen. The bill will require the minister to provide, or make reasonable attempts to provide, the dual citizen with notice of the revocation unless the notification would compromise ongoing operations or national security. The citizenship of other family members of a person who has had their citizenship revoked will not be affected.

The bill includes several appropriate safeguards to ensure transparency and to give citizens avenues for redress. Due to the recommendations of the PJCIS, the bill will have limited retrospectivity. Dual citizens who have been convicted of a serious terrorism offence within the past 10 years, and who were sentenced by a judge to a minimum of 10 years in prison for that offence, may have their citizenship revoked under this bill. Revocation of citizenship in these limited circumstances will be subject to the minister's discretion, having regard to a number of criteria including current security threats. A person will have the right to appeal the loss or revocation of their citizenship to the Federal Court. This is an important safeguard that Labor believes is a fundamental right of our citizens. Further, the government will be required to publicly report, every six months, on the number of times the changes have been applied and to provide a brief statement on the reasons why they have been applied. No-one in Australia will lose their citizenship simply because of untested suspicions or concerns regarding their conduct.

There is no denying the significant concerns expressed in relation to this bill. One particular concern expressed by legal experts goes to the constitutionality of certain aspects of the bill. Despite repeated requests by Labor and PJCIS members, the government refused to release the Solicitor-General's advice and has, I think, failed to adequately address these concerns. Instead, Senator Brandis, the Attorney-General, wrote to the PJCIS giving a very qualified assurance of constitutionality. In this instance, the Senate deserves greater accountability from the Attorney-General. However, it is not only the Attorney-General dragging his feet. In its 11th report of 2015, the Scrutiny of Bills Committee reported that the committee is still waiting for a response from the Minister for Immigration and Border Protection—requested for response by 27 August this year. Those opposite might want to provide that response. Three and a half months have passed, and the bill is now before this chamber, and the government has not bothered to address the committee's concerns that go directly to matters of fairness for Australian dual citizens. The government should answer why it has not responded to the report of the Scrutiny of Bills Committee and why it is withholding that information. The government should be mindful that, if these laws are tested in court, it will be a matter for them to defend and explain.

This legislation does not represent a significant change to the principles underpinning our country's citizenship laws. It simply seeks to update existing law to bring it up to speed with addressing an emerging threat to our national security. The law has not been updated since it was first written in 1948. The government must act to take into account non-state groups, like Daesh. While this bill may not sit well with all members of the Australian public, including the Greens, we must support these measures in order to take up the fight against terrorism.

I wish to acknowledge the considerable work of the PJCIS in examining this legislation. Without the work of the committee I think this Senate would be faced with a much poorer bill—a bill that would trouble many Labor senators a lot more than the amended bill does, with the assurances of the committee, with the work that the committee has done and, ultimately, with the government acquiescing to the amendments put forward by the committee itself.

In closing I would like to add a couple of the Q&As that come up that others will use in this place as a means to raise concerns. These are some of the myths that get thrown up in these debates. These laws do not risk making people stateless. They will only apply to someone who is a dual citizen. People always ask why we need to pass these laws, and I think I have explained that cogently. We have also passed a foreign fighters bill. These laws offer an important update of the law to reflect that those people who wish to harm Australia no longer wear an easily distinguishable uniform of another country. It remains illegal under Australian law for any person in Australia or any Australian citizen, including dual citizens, to provide any kind of support to any kind of armed group in Syria or Iraq today.

The issue of retrospectivity always concerns me in this place. It is limited. It has been circumscribed. The government has recognised that retrospectivity with a bill like this should be used very carefully. Those dual citizens who have been convicted of a serious terrorism offence within the past 10 years and who were sentenced by a judge to a minimum of 10 years in prison for that offence may have their citizenship revoked under the new laws. Under changes recommend by the intelligence committee, revocation of citizenship in these limited circumstances will be subject to the minister's discretion having regard to a number of criteria, including current security threats. It is always difficult for reliable intelligence to be gathered in this area for agencies to operate on. But, of course, we have some of the finest agencies in the world—consisting of ASIS, ASIO and the AFP. The minister will rely, I am advised, on the advice of those security agencies. In conclusion, I commend the bill to the Senate.