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Tuesday, 1 December 2015
Page: 9490

Senator GALLAGHER (Australian Capital Territory) (19:36): I rise to speak on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. This is a very important and very serious piece of legislation. It is important because citizenship brings with it important rights. It is serious because it allows, in prescribed circumstances, a dual citizen to be stripped of their citizenship.

Last month I attended a citizenship ceremony for about 100 new Canberra citizens. As everyone here would know, you cannot officiate at one of these ceremonies and not be touched by the reverence and importance that the participants and their families place on this ceremony. It is a big step—a big decision—to take out citizenship in a new country and there is a heightened awareness, a gravity and a nervous excitement that envelops the room. Everyone is dressed in their best clothes. Photos are taken, and the smiles are from ear to ear. Our new citizens understand the importance of taking out citizenship. For those of us born to our citizenship, perhaps until very recently we have not given it much thought. It was taken for granted.

At the moment there are four main ways that a person's Australian citizenship can cease. Specifically, it can cease where a person explicitly renounces their citizenship in an application approved by the Minister for Immigration and Border Protection. It can cease where the minister revokes the person's citizenship on the basis of a conviction for an offence relating to fraud in the course of obtaining Australian citizenship or of a conviction for certain offences after applying for but before being granted Australian citizenship. It can cease where the minister revokes the person's citizenship for failure to fulfil residence conditions associated with becoming an Australian citizen. Or it can cease where the person is a national or citizen of another country and serves in the armed forces of a country at war with Australia. This is a self-executing provision—that is, it applies automatically at the time the person's service commences.

The bill before us today certainly came forward in a rush of controversy and heightened media debate. Highly respected academics attacked it. Lawyers delivered searing critiques of its shortcomings. Migrant organisations expressed deep concern. Indeed, across the government, this bill in its original form was hotly contested, and we learnt more about it from media reports than what was finally presented publicly. In its original form it was simply unacceptable, but that was back in June 2015.

Since that time, this bill has been examined by the Parliamentary Joint Committee on Intelligence and Security, of which I am the most recent new member. I well remember reading the various submissions to the inquiry and sitting through the hearings and my rising alarm as I realised the overreach in terms of retrospectivity, the poor drafting or rushed drafting and the unacceptable extent of the coverage of the proposed legislation. The officials who appeared before us during those hearings, whilst not providing us necessarily with all the information we sought, strongly argued for this bill to be passed in order to assist them with the job that they do to counter terrorist threats and keep Australians safe.

The committee provided a unanimous final report, presented on 4 September. It contained 26 detailed recommendations for amendments to the legislation, which have been incorporated into the bill we have today, with a couple of subsequent amendments to that. I would like to state here, as this was the first PJCIS inquiry I sat on, my appreciation for the tireless work and the leadership particularly of my colleague the member for Isaacs, Mark Dreyfus, and also other members of the Parliamentary Joint Committee on Intelligence and Security and the staff of that committee. They put in enormous effort to ensure not only that the committee report actually reached an agreed set of recommendations but also that our side of politics was able, through patience and diligent work, to ensure that we negotiated a set of amendments that significantly improved and narrowed this legislation.

I will now cover some of the main issues about the bill. Certainly some of these have been identified as areas of continuing concern. I think it is important to note, firstly, that currently the act states that a person will have their citizenship revoked if they serve in the military of a nation at war with Australia. It has not been updated since it was first written. From the beginning, Labor said it made sense to update the act to take into account the threat posed by non-state entities such as Daesh and other terrorist organisations.

Our main concern has been to ensure that this update to our citizenship laws does not have any unintended consequences. Our bottom line had been that we simply would not support legislation that eroded the fundamental importance of citizenship in our nation, and equally we would not support legislation that undermined the status of our country's many dual nationals and created two classes of citizens in this country.

In this bill, there are three mechanisms for automatic loss of citizenship: if a person is convicted of a terrorist offence; if a person is overseas, collaborating with a terrorist organisation; or if they have fled overseas having committed a terrorist act in Australia. The new proposed section 33AA is an extension of the current provision which allows a person to renounce their citizenship. This new section provides that a person who is a national or citizen of a country other than Australia automatically forfeits their Australian citizenship by specified conduct 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'; and 'engaging in foreign incursions and recruitment'.

The original scope of the bill has now been significantly narrowed by the amendments that were recommended and agreed to by the government, and it now presents a far more targeted approach than what was originally tabled by the government. As senators would be aware, yesterday in the other place further amendments were moved and passed. The Minister for Immigration and Border Protection tabled an additional amendment to a section of the bill which corrected an error made in the earlier form of amendments. The error was specifically in proposed section 33AA(3), which implements the recommendations of the committee that the bill be clear about what level of intent is required for a person to renounce their citizenship by conduct while overseas. In the initial form of the amendments, the bill would have had conduct which would not be considered a terrorist offence under the Criminal Code. Obviously, that would have been inappropriate and not in keeping with the recommendations of the committee. It is important to note that Labor raised this matter with the government, and we are satisfied that the additional amendment deals appropriately with this issue.

A person will have the right to appeal the loss or revocation of their citizenship, and no-one in Australia will lose their citizenship simply because of untested suspicions or concerns regarding their conduct. A person will have the right to appeal any determination by the minister to have their citizenship stripped. This is an important safeguard that Labor believes is a fundamental right of our citizens. I would also note that the Attorney-General, in correspondence dated 27 November 2015 to the member for Corio and the shadow Attorney-General, stated in part:

The basis for the conclusion that the terrorist-related or foreign fighting conduct has occurred may be reviewed by a court …

Any judicial review would extend to whether or not the contract was engaged in, whether the person engaged in that conduct with the requisite intention, and whether or not a person was a dual citizen.

The bill also provides that a person who loses their citizenship for terrorist related activities is not able to become an Australian citizen in the future.

One of the most vexed issues with this bill, and certainly as it was presented and discussed in the committee, is the issue of retrospectivity. I think it is important to note that there is very limited retrospectivity in this legislation. The bill will now provide that section 35A power can only operate for 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. 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 should also be noted that the Minister for Immigration and Border Protection yesterday also included an additional amendment to this section to change the process by which the minister is to consider exempting a person from the revocation of their citizenship by conduct whilst overseas. Late last week, and after 40 government speakers had spoken on the bill, the government indicated to Labor that the Solicitor-General had advised that the constitutional prospects of the bill would be strengthened if the bill did not oblige the minister to consider exercising but rather permitted him or her to do so. Labor has had to accept the government's assurances of the constitutional implications of the proposed provision and has agreed to support amendments.

The bill requires the minister to give written notice of the automatic cessation of Australian citizenship to persons the minister considers appropriate, as well as rescinding the written notice and exempting a person from automatic stripping of their citizenship if the minister considers it to be in the public interest to do so. It is also important to note that the minister will rely on the advice of the security agencies such as ASIS, ASIO and the AFP on the status of a citizen in relation to them fighting for a terrorist organisation.

I will make just a few comments on the statement of compatibility with human rights which accompanies the bill. The amendments have been assessed as engaging human rights under one or more of the seven core international human rights treaties to which Australia is a party. The statement of compatibility notes that the measures in the amendments engage article 12 of the ICCPR, which provides:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order … public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

The statement advises that the amendments will not of their own force alter a person's liberty of movement and freedom to choose their residence, and those rights may be limited on bases that are provided by law; necessary to protect national security, public order, or the rights and freedoms of others; and otherwise consistent with the ICCPR.

Another important issue addressed by the statement of compatibility with human rights concerns the rights of children. The proposed amendments apply to all dual citizens regardless of their age. The cessation and renunciation provisions would only occur as a result of extremely serious conduct. It should be noted that the minister's ability to exempt a child from the cessation of their Australian citizenship allows consideration of all of the circumstances of the case in determining whether it is in the public interest to do so.

I would now like to turn to what has been a yet-to-be-resolved issue in relation to the bill. Despite repeated requests from Labor and members of the Parliamentary Joint Committee on Intelligence and Security, the government refused to release any of the Solicitor-General's advice on this bill. Senator Brandis wrote to the committee to advise that it is the view of the Solicitor-General that the legislation is constitutionally sound, but we have certainly not sighted that advice. I noted earlier that Senator Brandis has recently provided a letter to Labor which apparently summarises the Solicitor-General's advice. Labor's shadow Attorney-General, Mr Dreyfus, requested the new advice from the Solicitor-General on the additional amendments, but again this request was refused, despite there being precedents in the past, as I understand, for legal advice to be shared in certain circumstances. For those of us like me who strongly believe in open and transparent government, this reticence to table the advice is unacceptable, but, as is the way with these matters, it is up to the government to ensure that its legislation is robust and fit for purpose. Ultimately, if these laws are tested in court it will be for the government to defend them.

As I stated at the outset of my speech, citizenship is an important and serious right, and any legislation which seeks to vary or amend the rights of our citizens is one which needs careful and meticulous attention to detail. Labor supports updating the act to take into account the threat posed by non-state entities. We have worked hard to ensure that this update to our citizenship laws does not have unintended consequences. We have taken the necessary steps to ensure that there is no unacceptable erosion of the importance of citizenship in our country. We certainly remain of the view that the Solicitor-General's advice on the bill should be made public, and we view with regret the Attorney-General's refusal to do so.

In conclusion, we live in very uncertain times, where threats posed by terrorist organisations and individual terrorists are real. Labor has engaged with the government in good faith on measures, legislative or otherwise, to keep Australians safe. And elements of this legislation have certainly been challenging for our party. We have worked diligently through the established processes to improve this bill to narrow its focus and to provide review rights where they are appropriate, and we have certainly had to rely on the assurances from government regarding the constitutionality of this bill.