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Thursday, 3 December 2015
Page: 9936


Senator BRANDIS (QueenslandAttorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (21:41): Senator Leyonhjelm, of course I agree with you that, as a general rule, retrospectivity is a bad principle. There is no question about that. But every general rule admits of some exceptions and, in this particular case, this is a very narrow aspect of the retrospectivity principle, because the reason we regard retrospective legislation as bad is that it creates a liability in respect of conduct which at the time the conduct was engaged in was lawful; but what we are calling the retrospectivity provision in this bill does no such thing. The entire method of this bill, at least insofar as it concerns these provisions, is to assume a person has been convicted of a terrorism crime—convicted and sentenced—so that, at the time they engaged in the conduct, it was not as if they were acting lawfully. These provisions only operate in relation to people who had been acting unlawfully at the time, under the law as it was at the time, and in fact committing a serious crime, a serious terrorism crime, and who have been prosecuted, convicted and sentenced for an offence carrying a penalty of at least 10 years imprisonment. The provision, which was recommended by the PJCIS—recommendation 10, I believe it was—is that, in those circumstances, those people should also be liable to revocation of citizenship by reason of conviction.

Senator Leyonhjelm, you would be on stronger ground, if I may say so, if you could point to conduct which was not unlawful, was not in fact a serious, grave breach of the criminal law, at the time in which it was engaged in. But that is not this case. These provisions only apply to conduct that was a serious criminal offence, a terrorism offence, at the time it was engaged in under the law of Australia as it stood at that time. The only sense in which it operates retrospectively is that it visits an additional potential consequence upon such a person—that is, if they are a dual citizen, the revocation of their citizenship by the minister—that was not part of Australian law at the time the crime was committed. So the only element of retrospectivity is as to consequences, not as to liability. That is why I say, Senator Leyonhjelm, that this is a very, very narrow sense in which the provision is retrospective. Furthermore, it can only reach back 10 years. So if you are a person who, within the last 10 years, has been convicted of a terrorist crime in Australia for which the period of imprisonment is at least 10 years, then this can apply to you. But it does not criminalise something that was innocent at the time it was done. That is the real vice of retrospective laws, and this is not a law of that character.