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Thursday, 3 September 2020
Page: 4980


Senator STOKER (Queensland) (15:45): This is a really important bill for Australians in more than one sense. For good, law-abiding Australians, it offers another important tool in the box of the security agencies of this country to help keep out those who hate Australia, who hate Australians and who hate the values of freedom and tolerance that make this country great. But, for those who are dual citizens of Australia and another country and who would seek to do the wrong thing, whether through terrorist acts overseas, fighting with the armies of terrorist militia overseas or treason, sabotage, espionage, foreign interference and offences associated with planning, preparation and carrying out terrorism here in Australia, they will face its brunt. This vital reform will be undertaken through the Australian Citizenship Amendment (Citizenship Cessation) Bill, which the Parliamentary Joint Committee on Intelligence and Security considered in tandem with a statutory review of the regime that was previously in place in this place for cancelling the citizenship of dual citizens who engage in these types of acts.

This bill changes the method for achieving that objective. It means that, while we are aiming for the same goal—the cancellation of the Australian citizenship of people who very much object to all that this country stands for—it will now be done by allowing the Minister for Home Affairs to end a person's Australian citizenship if satisfied that their conduct demonstrates, in effect, a repudiation of their allegiance to Australia. The minister would also have to be satisfied it is not in the public interest any more for that person to remain an Australian citizen. The ministerial decision-making model proposed by this bill is an improvement on the current arrangements and, quite importantly given the gravity of these decisions on the citizenship and rights of the individual, an opportunity exists for persons affected by these citizenship cessation provisions to seek judicial review and, in relation to an ASIO qualified security assessment, merits review.

This is the main complaint made by people who don't like this bill: there will be some people who will say they don't like the idea that the general approach to reviewing decisions of this kind is one of judicial review. I really want to address that and say something about just how much opportunity this bill provides for any problems in the decision-making process to be corrected. The availability of judicial review includes the ability for a person who is subject to citizenship cessation to seek declaratory relief from a court that the conduct that it is said forms the basis of the decision to cease the citizenship was not in fact engaged in. Wow, that's a mouthful! It provides a person with a broad and effective opportunity to have the facts of that issue canvassed before a court and to have a court make a determination in relation to those facts.

An honourable senator: A merits review.

Senator STOKER: No, it's not a merits review, but it is a fabulous and effective way of ensuring that we are protecting the rights of the individual. The situation that is most likely to give rise to a need for review is a factual situation where a person has been the subject of a decision to cease their Australian citizenship on the basis of evidence that gives rise to the minister's satisfaction that the person is the holder of a citizenship or nationality of another country, a country other than Australia, but, for argument's sake, let's assume that information has turned out to be, despite the best and honest efforts of the minister, incorrect. It's a very unlikely scenario, but theoretically it's possible because determining if someone is a citizen of another country can be difficult as you're trying to understand the laws of other countries. If that worst-case scenario were to happen, there is substantial protection of the rights of the individual in the following five aspects of the bill.

Firstly, there is the right of merits review for an adverse security assessment if it's a decision that's been made on the basis of one of those, although I freely admit that the power proposed in 36B of this bill can be exercised in the absence of such an adverse security assessment. There will nevertheless have been an assessment, though, in many relevant cases.

The second protection is the right of judicial review that exists for the decision under proposed section 36B, particularly noting that this will cover circumstances where a minister made a decision that was affected by bias, where a minister considered irrelevant matters or where a minister failed to take into account matters that were relevant. That's how we sort out decisions that are wrongly made.

The third protection that exists under the bill is the right under proposed section 36H to seek revocation of a citizenship cessation decision after receiving notice that it's taken place. That's a power that must be exercised in the event that an individual who's affected can show that they don't have a non-Australian citizenship or nationality or if they can show that they weren't engaged in the conduct that forms the basis of the decision. It also permits revocation of the decision if it's in the public interest to do so. This is a process of course that needs to be made under this bill according to the rules of natural justice. So, if there was the worst happening and a decision was made in error, there are mechanisms in this bill to set it straight. So all the frothing that we get from Senator McKim and the Greens about the great injustice of this begs the question: whose side are they on here?

The fourth matter of protection that is provided by this bill is in proposed section 36K. It affirms the right—

Senator McKim interjecting

Senator STOKER: Senator McKim might learn a few things if he could be quiet enough to listen. He could learn that the right of an individual to seek relief—like, for instance, declaratory relief—from the High Court or the Federal Court to remedy a decision made in error by the minister, should one be made, on the question of the citizenship or nationality of a person of a country other than Australia remains. Proposed section 36K also provides for the correction of a decision should there be the disallowance of an instrument by this place where that instrument declares a terrorist organisation to be relevant for the purposes of some of our other security laws. That is important because that consideration can be relevant to determining whether or not the person has done the wrong thing in the first place, but it provides for those sorts of decisions to be corrected should that unlikely circumstance arise.

Finally, if all of those quite substantial measures of protection were to fail—again, I suggest it's pretty unlikely, but let's prepare for the worst while working for the best scenario—the minister has a further power pursuant to proposed section 36J to, of his or her own initiative, revoke a determination if satisfied it's in the public interest. The matters for the minister to take into account in determining what constitutes the public interest are listed in proposed section 36E, and it's quite an extensive list.

So, while some in the academic fraternity or in the lawyers lobby—they're always arguing for more work for lawyers in the merits review sphere—might froth at this bill, the fact is it has a lot of protections for the correction of decisions that are made in error and to protect the individual from potential abuses of power. I think that is really important, because it means we're getting the balance right between making sure we have accuracy and fairness in the decision-making and ensuring our agencies and our minister have the tools necessary to keep Australians safe. It gets the balance right.

The Parliamentary Joint Committee on Intelligence and Security made a series of recommendations for this bill, and those recommendations have been incorporated. I must commend the Labor representatives on the PJCIS for their contributions, because this has been difficult to work through, and we have worked together to get it over the line. The recommendations we made for this bill to be improved were to clarify that the proposed section 36B of the bill requires the minister to be reasonably satisfied of the matters listed in proposed section 36B(1) and that the explanatory memorandum of the bill clarifies the nuts and bolts of the things the minister should take into account when considering what amounts to the public interest—for instance, whether or not there are dependants affected by the decision. Finally, we inserted a recommendation for the PJCIS to review the bill three years after assent so that we can continue to improve the way we go about doing this in Australia, just as we endeavour to do in this bill: improve upon the regime for the automatic operation of law cessation of citizenship that was in place before.

These recommendations are the product of the PJCIS's comprehensive analysis of the bill, and they're reflective of the seriousness with which we approach the very important issue of who forms the body of Australia's citizenry. Citizenship cessation is effectively a modern form of exile, and the committee has ensured that any decision to remove a dual national's Australian citizenship is undertaken with care and takes into account all the relevant factors for each individual's case, from their conduct through to their personal circumstances through to the operation of the law of the country of which they hold their other citizenship.

There will be some people who say Australian citizenship is a right that can't be revoked in any circumstance. There are two things you can say about that. First, no person who is solely an Australian citizen can have their citizenship revoked; they're not captured by this bill. It means that no person will be rendered stateless by this bill—and I think that's an important matter to make very clear in light of some of the pretty inflammatory things that have been said by Senator McKim in his contribution. Second, those dual citizens who betray their fellow Australians by engaging in acts of terrorism and similarly heinous conduct reject the responsibilities that are involved in holding Australian citizenship. They repudiate our values and they dishonour the people of this country. Their loyalties don't lie with this great nation, and it is right that that has consequences.

Membership of the Australian community is a very, very special thing. We share it generously with people from all over the world. But if there are people who hate our democracy, people who hate our freedom and our tolerance and hate it so much that they would harm their fellow Australians, well, then this nation is prepared to take away that gift. I commend the bill to the Senate.