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Thursday, 3 December 2015
Page: 9919


Senator XENOPHON (South Australia) (20:20): I have some questions to the Attorney. Looking at the transcripts of the Prime Minister's statements given by the government, the emphasis in this legislation has been on terrorists fighting with the Daesh 'death cult', to use terminology from the former Prime Minister. A transcript of a statement of the then Prime Minister of 22 January 2015 said, 'We can't take away people's citizenship. What we can do is to ensure we stop them from going in the first place.' That was in the context of the foreign fighters legislation, so I understand that. But subsequently, when this legislation was being discussed, the emphasis was very much on people involved in terrorist-related activities. In fact, a joint press release dated 26 May 2015 by the then Prime Minister and the then and current immigration minister, the Hon. Mr Dutton, said that the Minister for Immigration and Border Protection will be able to exercise these powers in the national interest where a dual citizen betrays our country by participating in serious terrorist-related activities. This was a transcript of the then Prime Minister's statement with the Hon. Mr Dutton and you, Attorney, where a reference was made repeatedly about serious terrorist threats

I will not be prolix by repeating it unnecessarily, but the statements of the government, the Prime Minister, the Minister for Immigration and, indeed, yourself were that there was a real emphasis about having citizenship stripped in respect of being involved in a terrorist threat.

My understanding is that the legislation actually goes far beyond that, and I have made this clear. I have given fair notice to your office, Attorney, as a courtesy to you—the usual courtesy—of my concern that the application of proposed sections 35A(1) and A(3) of this bill make reference to other offences. One of those offences is section 91.1 of the Criminal Code, which relates to espionage. I will not insult the Attorney by asking him to confirm that, because it is, on the face of it, in the bill.

My concern is in relation to proceedings in the International Court of Justice in The Hague at a public sitting on Tuesday, 21 January, 2014, at the Peace Palace with President Tomka presiding. Australia was well represented by a legal team headed by Mr Justin Gleeson SC, the Solicitor-General of the Commonwealth. Reading from the transcript from the International Court of Justice in The Hague, it relates to a case concerning 'Questions Relating to the Seizure and Detention of Certain Documents and Data—Timor-Leste v Australia'. It relates to the raid on, I think, 2 December 2013, of Mr Bernard Collaery's chambers and involves Witness k—something we have ventillated on on many occasions in estimates and here in this chamber. Mr Gleeson SC, the Solicitor-General, as part of the case, said:

On the basis, however, of what I have just taken you to, there are reasonable grounds to consider that the materials over which Timor-Leste asserts privilege may include written statements, or affidavits, by a former ASIS officer, made to Mr Collaery on behalf of Timor-Leste, disclosing national security information of Australia.

If that be the case, these disclosures would involve the commission of serious criminal offences under the law of Australia, and I reference sections 39 and 41 of the Intelligence Services Act 2001 (Cth), section 70 of the Crimes Act 1914 (Cth) and section 91.1 of Schedule 1 to the Criminal Code Act 1995 (Cth), which you have at tabs 20-22.

I just wanted to put that in context.

The legislation has been framed in terms of the public discourse about terrorist related offences and being involved with Daesh or ISIS, but it actually extends beyond that. It actually includes references to section 91.1 of the Criminal Code, which relates to espionage. In the statement from Mr Justin Gleeson SC that I read from the transcript of the proceedings in The Hague in the case involving Australia and Timor-Leste, on the face of it, it appears that there is an assertion that either the former ASIS officer referred to, known as Witness K, whose identity is quite appropriately suppressed, or Mr Collaery may have committed an offence under section 91.1.

The circumstances of this matter are contentious—and the ABC's Lateline ran a series of stories on this. Does this legislation mean that, potentially, if Mr Collaery or Witness K were convicted under section 91.1—and I must emphasise that Mr Collaery is quite distressed at any suggestion that he has done anything wrong and regards himself as a patriotic Australian—and if there were such a prosecution, could it apply in a case such as this so that Mr Collaery, who is, as I understand it, a dual national, could find himself stripped of his Australian citizenship? I think I have fairly set out my concerns.