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Wednesday, 2 December 2015
Page: 9732

Senator McKIM (Tasmania) (18:47): Again, thanks to the Attorney for that response. I guess the genesis of this line of questioning is that, in my view and the view of the Australian Greens—and I should add parenthetically here that we do not support the principle of this legislation; that is, removing citizenship from dual nationals in the circumstances proposed in this legislation, for the reasons I outlined in my second reading contribution—if you were going to remove citizenship from those people who meet the criteria, this ought to be a matter for the courts, not for the machinery of government. If it were a matter for the courts, we would then be able to discuss things like the standard of proof, as you were mentioning earlier.

However, given that that is not the case and that the effect given to the renunciation of citizenship that occurs by conduct in this proposed statute takes place on the issuing of the notice by the minister, what I am attempting to understand here is: what tests will be applied right through the process? You have been—and I thank you—very up front about administrative law precedent around the satisfaction, if I can put it that way, that the minister would need to arrive at, but what I am now trying to explore is: what level of satisfaction would the agencies that are the genesis of that advice need to arrive at before they put that advice up to the department and potentially then from the department on to the minister? It is our view that, if this matter were run through the judicial system—as we think it should be if someone wanted to introduce a mechanism to remove someone's citizenship—we could have a lot more confidence in what the burden of proof or the level of satisfaction would need to be before the effects flowed in terms of the machinery of government around things like electoral rolls and passports.

I ask you, Attorney: are you able to offer any further information to the Senate around the level of satisfaction it would be reasonable to expect or you would expect as the minister with carriage of this legislation through this place? What level of satisfaction would the agencies need to arrive at before they would put that information up through the chain that ultimately would culminate in advice from the department to the minister? By the way, I accept your previous statement—and I will paraphrase you here—that many, or at least some, of the actions might be of public notoriety. I do accept that. But I would submit to you that others may not be of that level of public notoriety. Therefore, the question I have asked is: what internal level of satisfaction, if you like, would the police or the ADF or any of our security agencies need to arrive at before they put the advice up to the department?