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Tuesday, 1 December 2015
Page: 9482

Senator XENOPHON (South Australia) (18:57): I have some serious reservations about this bill, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, but I want to make it absolutely clear that the state's most fundamental duty is to protect its people, that terrorist acts are abhorrent and that this is a real and present danger that we must deal with and grapple. My question is: what is the best way to grapple with this?

Let's look at the issue of citizenship revocation. There is no absolute prohibition against citizenship revocation. The state's most fundamental duty is to protect its people. If the best defence is to revoke the citizenship of people who would see Australia destroyed, the Australian government should be able to do so. But I ask the following questions. Is it the best possible deterrence? Is it the best defence to protect Australian citizens? What is the evidence that citizenship revocation will be a greater deterrent to a potential terrorist than the prospect of a criminal conviction and lengthy imprisonment or, say, that person being killed or executed in their foreign theatre of war or conflict?

Will citizenship revocation deter a potential terrorist? That is a question that we must ask. Would Jihadists care about losing citizenship status of a Western democracy that they detest? Of course, deterrence ought not to be the care argument. Deterrence may be an important reason to revoke citizenship but it is by no means the only reason to do so. We may revoke citizenship of offenders because they commit crimes and not only because the punishment would deter others. Offenders need to be dealt with appropriate due process. That is the hallmark of a civilised nation. That is a hallmark of the rule of law. More conventional protected measures should be used first. If more conventional measures are effective, we should use them.

There are arguments for citizenship revocation, and they may be grouped into three categories: protective, punitive and allegiance. The protective rationale holds that terrorists should not be allowed to make tactical use of their citizenship. If terrorists are using their Australian citizenship for unlimited entry and residence and unencumbered international travel, then restricting their freedom to move is a good idea. Of course, this can also be done by cancelling their passports without revoking their citizenship, so I wonder whether there are other mechanisms to prevent the unencumbered travel of an Australian citizen who is involved in terrorists acts. The cancellation of their passport would have the same effect without revoking their citizenship.

Let us not forget that terrible terrorist attack in Ottawa in 2014 where a would-be jihadist, who had been grounded by the Canadian government, is said to have killed an innocent guardsman in his rage about his passport cancellation. I think that is something that needs to be borne in mind. The punitive rationale holds that Australian citizenship is one of the great privileges of the modern era. I agree with former Prime Minister Abbott, who said, 'To be an Australian is to win the lottery of life.' But if you behave in a certain way then your punishment is banishment—political death in a sense.

Here we should note that if citizenship revocation is based on executive order rather than court judgement then it is seriously flawed because only the judiciary can mete out punishment. The Joint Committee on Intelligence and Security's work has been useful in clarifying that. I think there were serious issues in the potential legality of this bill in its earlier form because there was a real issue that it may not have survived a High Court challenge. In its current form, dealing with revocation by conviction or renunciation by conduct, it is much safer legally and would more likely withstand a High Court challenge so that is welcome.

I want to make the point that the current oversight we have of our intelligence services and of security matters is woefully inadequate. We have the joint standing committee but that is a club for the major parties. The exception to that in recent years was when Andrew Wilkie MP, the member for Denison, was, unusually, a crossbench representative on that committee when there was a balance of power situation in the House of Representatives. That was the exception rather than the rule. I wonder what would be wrong with having members of the crossbench and a member of the Australian Greens being able to attend as participating members of the joint standing committee, because currently the degree of oversight is inadequate if you compare it with the United States, with Germany and with the United Kingdom. There is a much greater degree of oversight in those places, including judicial oversight with respect to the United States. They have a court that effectively does not have public hearings but is a court that does provide oversight of intelligence services and security operations. We simply do not have that level of oversight here in Australia.

The other argument is that citizenship revocation may be seen as a relatively weak punishment compared to certain heinous crimes and, therefore, cannot be justified as retribution because it is not proportionate to the monstrosity of the crime. Furthermore, it removes the revokee from the jurisdiction and, therefore, does not allow an opportunity for that person to be brought to justice here in Australia.

I forecast that I will be moving a second reading amendment. I am not sure it has been tabled yet but it is something that I can raise in the committee stages of this bill. It is unambiguously my view that, before the cancellation of a citizenship is considered, by revocation or by renunciation, the government ought to consider the risk posed to Australian citizens overseas or indeed to other innocent citizens who live overseas. If we revoke citizenship with this bill, will it mean those Australians that live overseas will be less safe? Will it mean that innocents abroad will have to deal with a terrorist who will spend the rest of their miserable twisted lives working out how they can kill Australians or other innocents abroad when there may have been an option to bring that person back to this country to face trial and face a very length jail term? I have no difficulty in throwing away the key for those individuals who are engaged in terrorist acts and who are a threat to the community. My concern is: are we taking the easy way out by simply revoking their citizenship and allowing them to free-range in the rest of the world with their murderous intent? And that murderous intent may include targeting Australian citizens who are either holidaying or living overseas.

I think that there is an interesting contrast with the foreign fighters bill. My understanding is that the government said that we should not let people go overseas to be involved in terrorist acts and we should keep them here. We should prevent them from leaving the country. But this bill is saying that if you are overseas, we do not want you back in the country. There seems to be an uneasy dichotomy there between the two. I cannot reconcile that inconsistency between the two. To me, the priority must absolutely be the safety of Australians either here or abroad and other innocents abroad. If we have a person with evil, murderous terrorist intent and if we can in any way drag them back to Australia and lock them up for a very length period and throw away the key if need be, I would have thought that would make it safer rather than these people free-ranging. I move the following second reading amendment:

At the end of the motion, add "but the Senate calls on the Government to investigate the option of having dual nationals arrested and incarcerated in Australia, before the revocation or renunciation of their Australian citizenship, and consider the risk those persons might pose to Australians and other innocent people outside of Australia".

This amendment encapsulates the concerns in relation to this. I think it is important that we have that debate.

If I can go to the allegiance rationale in terms of the whole issue of revocation, this refers to what former Canadian immigration minister Chris Alexander referred to as 'loyalty and allegiance' when he introduced the 2014 Strengthening Canadian Citizenship Act in this Canadian parliament. That act allows for the stripping of citizenship in the case of treason, spying, taking up arms against Canadian forces and terrorism, even if the latter is committed outside Canada and sentenced by foreign courts, should the action in question constitute a terrorism offence also under Canadian law. My understanding is that that part of it, being sentenced by a foreign court, does not apply here and that can be clarified in the committee stages.

The 'foreign court' bit in the Canadian legislation should give us all pause. If we rely for citizenship revocation on a conviction for terrorist offences in another country, then what if the conviction has been obtained after an unfair trial, with torture and the like? I think that stripping terrorist subjects of their citizenship is a strongly visible policy and for that reason possibly also a strongly symbolic one. I can understand why the government has gone down this path. It is precisely the symbolic nature of the revocation that justifies the application of this measure on one argument—that citizenship revocation strengthens citizenship by reaffirming the conditions on which it is based. But what if the target is not Australia?

A person who wants to destroy the state that guarantees his or her citizenship can hardly complain when that state in self-defence revokes the citizenship. I get that, but in such circumstances, Australia is merely returning the favour. But what if the individual is not trying to destroy Australia but is trying to defend 'his or her people' overseas? We have seen that previously when Australians went overseas to be involved in foreign conflicts because of their familial links to those countries and to those conflicts. What if the individual is not trying to destroy Australia but is trying to provide material assistance to, say, the Kurds who are fighting against ISIS? What happens when they are on the side of what we are trying to do—that is, to defeat that organisation, ISIS, and the terrorist acts that they perpetrate? What if the individual is not trying to destroy Australia but is conscripted to a foreign military that is not at war with Australia?

There are arguments against revoking citizenship. Revocation may create a 'race to expulsion'. Consider a dual citizen of Australia and some other state—let us call it country B. Both Australia and country B may wish to lawfully revoke a person's citizenship, but if both states can do so only to dual nationals, then it becomes a race between Australia and country B to revoke the citizenship first—the early bird loses the worm. What is the evidence that citizenship revocation will be a greater deterrent to a potential terrorist than the prospect of a criminal conviction and lengthy imprisonment—and I am talking about throwing away the key? If these people have that murderous intent, if they are terrorists, then would the world be safer if they are locked away in a maximum security prison for the end of their days or until they are old and feeble and pose no risk to anyone? I see issues in relation to that.

I think there is a slippery slope here, that expulsion and exclusion against noncitizens can provide a conceptual matrix that facilitates similar practices against citizens in terms of civil liberties. As Thomas Jefferson warned in1798, 'The friendless alien has indeed been selected as the safest subject of a first experiment, but the citizen will soon follow.' If we want to tackle terrorism, certainly we need to act against those who have committed terrorist acts in the toughest possible manner. I worry that this will not necessarily make Australia safer. I see that Minister Fierravanti-Wells is in the chamber. I think the work she has been doing, engaging with communities involved in counter-radicalisation programs, is incredibly valuable. That is something which must be done in parallel and without reservation. At the risk of damaging Senator Fierravanti-Wells preselection chances, I think she is doing terrific work and I am very pleased that she is in that position.

There is a question as to whether the revocation measures are empty gestures? Is it not better to be involved in counterterrorism actions such as international investigations, arrests, convictions and imprisonment? Do we just give up, revoke their citizenship and then let them free range with their sick, twisted minds, to do damage to Australians and to other innocents abroad? That is a great fear I have. In terms of the court process, I think that is a welcome change in the approach of the government. It makes a challenge much more difficult, if not High Court proof. I am concerned that, if we go down this path, Australians may not be safer.

To look at revocation elsewhere, after the London terrorist attacks in July 2005, the Blair government amended the UK law in 2006. Previously the Home Secretary had to be satisfied that an individual had engaged in actions that threatened the 'vital interests of the UK'; now he or she had only to be satisfied that taking away someone's citizenship was 'conducive to the public good'. In the first year of the Conservative/Liberal Democrat coalition government —remember them in 2010-11?—no fewer than six people were stripped of their citizenship. This was more people than the Blair and Brown governments had denaturalised in the previous nine years. The revocations were almost always done in secret and later revealed by investigative journalists. In the next three years to May 2014, the UK government had revoked 23 people's citizenship on 'not conducive' grounds. In January 2015 the UK government presented a bill to parliament requesting the power to strip citizenship from naturalised citizens even if they would be made stateless. The amendment passed, albeit in a modified form: a naturalised citizen can be made stateless if the Home Secretary deems there are reasonable grounds for believing they have access to another citizenship. At least two former UK citizens were executed by US drone strikes after the Home Secretary deprived them of their citizenship and my understanding is that they were terrorist suspects who had engaged in acts of terrorism, and another was rendered to the United States for trial on terrorism charges.

Citizenship revocation does not operate in the United States, despite all the other measures it has embraced—they include rendition, drones and a range of other measures. The United States is unlikely to implement the policy because the United States Constitution has vigorous safeguards of individual citizenship due to that country's history of race-based slavery and its aftermath.

So what grounds should apply to citizenship revocation? They must be limited to only the most extreme, unmitigated attacks on the nation's security—attacks that are consistent only with a desire to bring the nation to ruin or to harm its citizens, or to be planning to do so. I think the conduct must be scrupulously defined, and I note there has been a comprehensive definition in this bill. So I understand the arguments for revocation, for renunciation of citizenship, to strip people of their Australian citizenship in exceptional circumstances. I get that. But what I am very deeply concerned about is that this bill will not make Australians safer. It would be better, wherever possible, to ensure that those who have murderous intent towards Australia with terrorist acts are dragged back to this country to face trial and a lengthy period of imprisonment, not to allow them to wander free-range with their sick, twisted minds, with murderous intent to Australians living overseas and, indeed, to any other innocents. This is my fundamental dilemma, and that is why I have very serious reservations in respect of this bill.