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Tuesday, 1 December 2015
Page: 9486


Senator FIERRAVANTI-WELLS (New South WalesAssistant Minister for Multicultural Affairs) (19:16): I rise to speak on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, and I thank Senator Xenophon for his kind comments. I also thank him for his support of ongoing efforts, particularly in relation to dialogue with our communities at risk. As I have often said publicly, our national security efforts are very, very important, but we must also look at the importance of the other end of the spectrum—at how strong social cohesion is so vitally important to good settlement, to good harmony and to good integration into our Australian society.

This evening I rise to speak not in my ministerial capacity, although all three areas of responsibility that I have—in the Attorney-General's Department, in the Department of Immigration and Border Protection and also in the social services issues pertinent to citizenship—do touch on this. I particularly wanted to make some comments this evening because, as senators would know, earlier this year Philip Ruddock and I led a national consultation process on Australian citizenship. As part of that process we proactively went out and wrote to about 1,500 organisations. We also put out a discussion paper entitled 'Your right, your responsibility', which included a whole series of questions on a whole range of pertinent issues. These questions focused on the broad spectrum of citizenship—about valuing citizenship, about rights, about responsibilities, about the pledge, about many different aspects of citizenship. We invited the Australian public to provide us with commentary, and many, many did so—some went online, some sent us written submissions, and Philip and I also had a series of face-to-face consultations around Australia.

The process was a very good one, and it prompted a response from so many different people on a wide range of different issues. One of the key themes which emerged—and I have spoken about this publicly, of course—was the importance of English as our national language and also the language of integration. The other key issue that emerged throughout the consultation process was the importance of valuing citizenship; indeed, it was one of the key responses in just about all the documentation that was forwarded to us. We need to value citizenship, and these were some of the suggestions that were made—the need to value citizenship through greater focus on civic training and understanding what citizenship means and what the values and benefits are, and also what the rights and responsibilities are, irrespective of whether you are an Australian by birth or an Australian by acquisition. This was one of the points that were stressed to us repeatedly—the importance of being an Australian not just by birth but by acquisition. People raised with us that citizenship is like a contract between you and the state. If one is in a contractual relationship with another person, that contractual relationship has both rights and responsibilities. So what happens then when you breach that contract? Clearly there are repercussions for that breach.

Our discussion paper also contained a section on revocation of citizenship for dual citizens engaged in terrorism and the suspension of privileges for Australian citizens engaged in terrorism. On these two points we had a lot of feedback. There was a strong sense that, if you commit an act of terrorism, you have to pay a price for that. Various submissions canvassed the possibilities of suspension, withdrawal and those sorts of things and, of course, the legalities that go with potential suspension or withdrawal.

Why the need for additional changes? According to the Review of Australia's Counter-Terrorism Machinery, the terrorism threat in Australia is rising. We know that the number of Australians joining overseas extremist groups is increasing and that the number of known sympathisers and supporters of extremists is also increasing. The number of potential terrorists is also rising. Our security agencies at the moment are managing over 400 high-priority counter-terrorism investigations, and we know that this figure has more than doubled since early 2014. Since September 2014, when the national terrorism public alert level was raised to high, 26 people have been charged as a result of 10 counter-terrorism operations. We currently have about 110 Australians fighting or engaged with terrorist groups in Syria and Iraq, and about 190 people in Australia are providing support to individuals and groups in the Syria/Iraq conflict through financing and recruitment, or are seeking to travel overseas.

Earlier this year, the Australian government announced that we would develop amendments to the Australian Citizenship Act 2007 to provide for the loss of Australian citizenship in the case of dual nationals engaged in terrorism related conduct. Supporting and engaging in terrorist activities against Australia's interests is a breach of a person's commitment and allegiance to our country—a bond that should unite all citizens. Citizenship should be respected and not taken for granted. This was the clear message from the national consultations that I raised earlier.

This bill states:

… the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.

Since the commencement of the Nationality and Citizenship Act in 1949 there have been provisions for the automatic loss of citizenship in cases where a dual citizen serves in the armed forces of a country at war with Australia. It is important that our laws are updated to reflect current threats to our country and our values through terrorism related activities.

A person's citizenship can also be revoked on the basis of a conviction for immigration or citizenship fraud, or for a serious offence with a sentence of 12 months or more committed prior to the granting of citizenship. I note that 16 people have lost their citizenship since 1949 on this basis.

This bill amends the Australian Citizenship Act 2007 in a number of different ways. The bill inserts a purpose clause setting out the fundamental principles upon which the amendments are based. The bill outlines circumstances in which a dual citizen ceases to be an Australian citizen through their engagement in terrorism related activities and where the minister may exempt a person from the operation of the bill. The bill also provides for reporting on and monitoring of the operation of the arrangements in the bill and the protection of sensitive or prejudicial information in relation to that reporting and monitoring.

The bill applies to a person who is a dual national regardless of how the person became an Australian citizen, whether by acquisition or birth. Again, in our consultations there was a strong sense that, if people are engaged in terrorist related activities, there needs to be a sanction for that breach of contract of their citizenship obligations, that sentiment being one that should apply to an Australian citizen whether by acquisition or by birth.

This bill was referred to the Parliamentary Joint Committee for Intelligence and Security for inquiry. The joint committee reported on 4 September, making 27 recommendations for amendment to the bill and the explanatory memorandum. The government has accepted these recommendations. The government also proposed amendments to the bill and the explanatory memorandum in response to the recommendations of the committee and on the basis of legal advice, including from the Solicitor-General, regarding the implementation of these recommendations.

I will touch on a number of the elements and specifics in this bill. The first element is renunciation by conduct. Section 33AA provides that a person aged 14 or older who is a national or citizen of a country other than Australia renounces their Australian citizenship if they act inconsistently with their allegiance to Australia by engaging in specified conduct. That specified conduct ranges over different activities such as 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; and engaging in foreign incursions and recruitment. The government amendments provide that the conduct provisions are limited to individuals who have engaged in this relevant conduct offshore or engaged in this relevant conduct onshore and left Australia before being charged and brought to trial in respect of that conduct.

The amended bill also provides that the conduct provisions only apply if the conduct is engaged in with the intention of advancing a political, religious or ideological cause and coercing or influencing an arm of the Australian government or a government of a foreign country or intimidating the public.

I now turn to the second element: fights for, or in the service of, a declared terrorist organisation. Since the law came into force in 1949, it has provided for the automatic loss of citizenship where a person serves in the armed forces of a country at war with Australia. This bill expands the section to provide for automatic cessation of citizenship if a person aged 14 or older who is also a citizen of another country is overseas and fights for, or is in the service of, a declared terrorist organisation. A declared terrorist organisation will be a subset of those which are listed for the purposes of terrorism offences under the Criminal Code.

As amended, the bill provides that the minister, by legislative instrument, may declare a terrorist organisation where that organisation is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act or advocates the doing of a terrorist act, and is opposed to Australia or to Australia's interests, values, democratic beliefs, rights or liberties, so that if a person were to fight for or to be in the service of such an organisation the person would be acting inconsistently with their allegiance to Australia. The provisions in relation to being 'in the service of' a declared terrorist organisation do not apply to a person's actions that are unintentional or performed under duress or for the purposes of providing independent humanitarian assistance. A declaration by the minister of a declared terrorist organisation is reviewable by the Parliamentary Joint Committee on Intelligence and Security.

A third element is conviction for terrorism and related offences. A new section 35A of the bill provides a discretionary power where the minister may determine that a person's citizenship has been lost once they have been convicted of a relevant offence and upon consideration of relevant criteria. So loss of citizenship is not automatic upon the conviction. Following the recommendations of the parliamentary joint committee, the list of offences is limited to terrorism related offences with a maximum penalty of 10 years or more. Also, offences of incursions into foreign states with the intention of engaging in hostile activities have been included through the amendments. Of course, this replicates provisions under the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 and is important in ensuring that the bill is as effective as possible, given the activities of terrorists overseas.

To be affected by this section, a person must be sentenced to at least six years' imprisonment or to periods of imprisonment that total at least six years, and this provision relies on a court having determined criminal guilt. The relevant offences include convictions for treason, espionage, terrorism, international terrorist activities using explosive or lethal devices, treachery, sabotage and foreign incursions and recruitment.

The person ceases to be an Australian citizen at the time the determination is made by the minister. Of course, in making that determination the minister must be satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia, or that other factors lead to the minister determining that it is not in the public interest for the person to remain an Australian citizen. The minister must revoke a determination if a conviction is overturned, the decision to overturn is upheld on appeal and no further appeal can be made to a court in relation to the decision. Law enforcement and intelligence agencies will provide information relating to conduct or conviction to the minister.

The bill provides for a process whereby notice must be given to the person as soon as practicable, except where the minister is satisfied that giving the notice could prejudice security, defence, international relations or law enforcement operations. This notice must include a basic description of the conduct and, of course, the person's rights of review.

The bill provides that the minister may, at any time after a person has ceased to be a citizen under conduct based provisions, consider whether to make a determination to rescind the notice and exempt the person from the effect of the section. Natural justice will apply in instances where the minister decides to consider exercising his or her power in relation to the making of a determination to rescind that notice or not. The rules of natural justice include the hearing rule and the bias rule. In considering whether to make a determination the minister must have regard to a range of factors, including, but not limited to, the severity and likelihood of prosecution of the matters, the degree of threat posed, the age of the person and other matters of public interest.

No part of the amended bill will apply to a child aged less than 10 years. The conduct based provisions of the bill will not apply to conduct by a child under 14 years of age. The question of whether a child knows that his or her conduct is wrong is one of fact, and the burden of proving this will be on the prosecution. In relation to any child who has been convicted of a relevant offence, a court will have already considered and confirmed that they were criminally responsible for their conduct.

The measures apply only to dual nationals, meeting Australia's international obligations not to render a person stateless. As I have indicated, a person will be able to seek judicial review under the Constitution or under the Judiciary Act, with the Federal Court and High Court having original jurisdiction. There is also provision for reporting to parliament and obligations on the minister in relation to reporting.

I conclude by saying that the new powers in this bill are both a necessary and an appropriate response to the evolution of the threat from global terrorism.