Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

I rise to speak on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. In all matters of national security, Labor have given bipartisan support. But the Labor Party will never be a rubber-stamp for the government. We take security very seriously. We are the party of John Curtin, who led this nation through World War II. We are the party of Ben Chifley. We have a strong tradition of looking after national security. There are people like Gough Whitlam, a flight lieutenant in the Air Force in World War II, or the great Tom Uren, a prisoner of war in Burma—someone who actually saw the nuclear bombs dropped on Japan and then, because of those experiences, went on to become a great warrior for peace. So we understand security. This legislation requires great scrutiny. Labor will continue to apply proper scrutiny to any changes to legislation proposed by the government. Obviously, that is the crucial role of an effective opposition party.

This piece of amending legislation has been thoroughly scrutinised by not only Labor but the Parliamentary Joint Committee on Intelligence and Security. I note the Labor representatives on that committee: the deputy chair, Anthony Byrne; Mark Dreyfus, a QC and the former Attorney-General; Penny Wong and Stephen Conroy from the Senate; and also Senator Katy Gallagher, former leader of the ACT. Great Labor minds were brought to bear on that committee when they looked at this amending legislation. The committee handed down its final report, a bipartisan report, on 4 December, and it made 27 recommendations for amendments to the bill that was originally introduced by the Attorney-General. These recommendations have been implemented, and I will speak further about those.

Firstly, what does this bill put forward by the Turnbull government seek to do? It seeks to amend the Australian Citizenship Act 2007—in particular, the ability to revoke the Australian citizenship of an individual if they have dual nationality. The Australian citizenship of an individual with dual nationality can currently be revoked under section 35 of the Australian Citizenship Act in circumstances where that person serves in the armed forces of a country at war with Australia. That provision of the legislation has been in operation since 1948, when that legislation was brought in by that great Labor Prime Minister Ben Chifley, who followed John Curtin as Prime Minister—I think there was Prime Minister Forde for eight days in between. Chifley was responsible for some very progressive reforms, such as the Pharmaceutical Benefits Scheme and the Snowy Mountains Scheme. Because of the timing of his prime ministership, he was also responsible for the postwar immigration scheme that saw the enactment of the Australian Citizenship Act and that time of great migration to Australia.

It is a very serious proposition to strip an Australian citizen of their citizenship. It was a very serious proposition in 1948, when the original provision was enacted. It is a very serious proposition now, when we are looking at making this amendment. Our citizenship is crucial. It is very important. I go to many citizenship ceremonies, and it is always touching to see the pride in the faces of brand-new Australian citizens. Some have come here because of love; some have come here through hardship; some have come here through economic opportunities and have then become Australian citizens. I always give them five tips at the end of the citizenship ceremony, if I am the presiding officer.

Mr Danby interjecting—

They are not official tips, and I will not go through all five, member for Melbourne Ports, but I will tell you the fifth point that I make. It is done in a light-hearted way, but I say to them that, as Australian citizens, they have to choose an Australian sporting team to support. If they are a rugby-loving person from New Zealand who has just become an Australian citizen, I say, 'I understand why you might want to support the All Blacks, but you've got to find an Australian team to make your No. 1 team in some sport.' But I say, 'I can understand why, if you love rugby, you might make the All Blacks No. 1 and Australia No. 2, but if you ever make Australia your third team in anything, we can deport you.' It is said in a light-hearted way, but it is making a point about loyalty to a new country. When they make that oath, when they take that pledge, they are taking on values that say Australia is now part of their life. It is not about denying their connections with other countries; it is about having to make a new place in their heart for Australia.

When I walk around the streets of Moorooka, where I live, or Sunnybank, where I work, I know that we are an inclusive society. Every face that I see tells me that we can be an inclusive society when we, as a nation, are at our best. I have seen division being cultivated by politicians and other members of society, but I know that, at our best, we are an inclusive society. We are welcoming to new citizens. Inclusion in our society is very important to a sense of belonging for all of us, even for Indigenous Australians.

But, just as in 1948, when the original section was introduced in the act, if a dual citizen puts on a uniform and fights against Australia then they are not showing the allegiance to Australia that a citizen is expected to. They are betraying that pledge, if they became a citizen by way of a ceremony. It was more obvious that an Australian citizen was fighting for a country that was at war with Australia in 1948 and in the postwar world, when many politicians were people who had fought in those wars. The lines on the 1948 map are not quite the same as they are on the 2015 map. The lines are a bit more blurry, the borders perhaps a bit more porous, in some parts of the world than they were in 1948. In 2015, in this digital, interconnected world, it is just as important to protect Australia, particularly from these non-state actors who have caused so much mayhem.

Australia still needs to be protected from not only hostile countries but terrorist organisations—an enemy that operates across porous borders and even, sadly, in the shadows of Australian homes and on Australian streets. It is important that this legislation is amended to accommodate the modern-day threats to Australia in this digital age. The importance of allegiance to the country has been mused about before, particularly by the former Prime Minister. Before the Turnbull coup, the then Prime Minister used to wrap himself in a flag and talk about this in a way that sometimes I think created division in society and caused great stress to certain groups in society. In 1774, Samuel Johnson wrote that patriotism is the last refuge of the scoundrel. I have seen people literally wrap themselves in our flag—and I will not name her—so I know that people will exploit political situations under false patriotism because they are trying to divide this nation.

Our citizenship and our true allegiance to country are part of who we are and part of who I am. Citizenship is an essential and fundamental right. We can trace it back to statements and treaties that we signed and back to the great Labor leader Doc Evatt and the declaration of human rights. As I said, it goes to the core of who we are and who I am. We have many citizens in Australia who have dual nationality. Labor will not tolerate any attempt to undermine the status of dual nationals in this country. In fact, the original legislation, which was introduced back in June, would have potentially roped in four, five or six million Australians. Thankfully, the PJCIS made many recommendations to narrow the scope of this bill. It is now a much more targeted response to the issue that it is aiming to address, rather than creating mischief and fear amongst people, such as in my electorate—be they the Vietnamese community in Oxley, the African community in Moorooka, the Taiwanese and Korean communities in Sunnybank or the many other dual nationals in my electorate.

It is very important that the serious action of stripping citizenship of a dual Australian citizen is balanced against the seriousness of the threat to Australia. Labor believes that the provisions of this bill now achieve that balance. A person will only be stripped of their Australian citizenship: if they are engaging in terrorist activities or collaborating with a declared terrorist organisation overseas, if they engage in terrorist activities in Australia but are no longer in Australia, or if they are convicted in Australia of a terrorist offence. No person in Australia will be stripped of their citizenship simply by way of untested suspicions or concerns about their conduct or—heaven forbid—due to political expediency because there is a desire to target a particular person.

Importantly, a person who the minister has determined should be stripped of their citizenship will have the right to appeal the determination—that important separation of powers. Labor believes this is an extremely important safeguard and that it is a fundamental right of all citizens that they be given that judicial protection. The minister will declare which organisations are the terrorist organisations that will be the concern of this legislation. The minister must consider explicit criteria to inform her or his decision. As a further safeguard, any declaration by the minister that an organisation is a terrorist organisation will be disallowable and reviewed by the Intelligence Committee. One of the recommendations of the PJCIS was to explicitly rule out conduct done by way of humanitarian assistance or acts done unintentionally or, even worse, under duress from being caught by section 35 as 'in the service of a declared terrorist organisation'. The bill has been amended to implement this recommendation.

There are also protections to ensure that where a dual citizen has his or her Australian citizenship stripped they will not be left stateless. Firstly, this legislation only applies to dual citizens, so the person must have citizenship with another country. Further, any decision about the revocation of Australian citizenship must take into account whether the person is able to access the citizenship rights in the other country of citizenship or nationality, and the extent of their connection to that country. Obviously, this is a practical consideration, because if a person is stripped of their citizenship, they have to be put on a plane, be accepted by the airline and sent to the other country.

There are also important safeguards around children who may be affected by this legislation. We know that children, sadly, can be easily led astray. It is very important that we have safeguards to ensure that we do everything we can to bring these children back on the right path. The PJCIS recommended that the extent that the bill will apply to children be very limited. No part of the bill will apply to children aged less than 10 years, and the provisions around revocation of Australian citizenship will not apply to children under 14 years. Where this provision is being applied to a child, the best interests of the child are a primary consideration. Having been a schoolteacher for 11 years, I know how easily young men can be seduced by love or religion whilst they struggle to find their identity and their role in society.

This bill makes significant amendments to our citizenship legislation. The consequences of this bill ought to have been seriously considered by the government before it was initially drafted and introduced into this chamber in June 2015. Bizarrely, the government left out of the original bill important safeguards—such as safeguards around the application of this bill to children, safeguards to ensure that persons conducting humanitarian assistance or acts done unintentionally or under duress are not inadvertently caught under these provisions, and safeguards to exempt staff members or agents of Australian law enforcement or intelligence agencies from its application. All of these things should have been contemplated by the LNP government before it drafted the bill; they were not. Through Labor scrutiny and the consideration of the committee, these shortfalls have now, largely, been corrected.

The Parliamentary Joint Committee on Intelligence and Security made 27 recommendations, and the government has agreed to implement all 27 of those. However, I do flag the serious question raised by the Labor Party about the constitutionality of this legislation and whether it will survive a challenge in the High Court. During the committee scrutiny of this bill, several peak legal bodies, including the Law Council of Australia and the Australian Bar Association, expressed their concerns about the constitutionality of this bill. The concerns were twofold: (a) whether the Constitution grants the Commonwealth power to legislate with respect to citizenship and the conditions under which that grant is held; and (b) whether there are any constitutional limitations that would apply, particularly considering Chapter III, which includes the separation of powers and the implied right to vote. These are serious concerns, and I still have significant anxiety about these issues. Nevertheless, whether this bill is constitutional is essentially a matter for the government and the Attorney-General. Labor has tried to work with the government on this issue and asked for the advice of the Solicitor-General to be made public. Strangely, the government refused this simple request.

This smug government refused to make the Solicitor-General's advice available even to the committee. The only assurance the government has given is a letter from the Attorney-General to the committee, basically stating 'Trust me', confirming the constitutionality of the bill. This from the Attorney-General who said that people had the right to be bigots, introduced the divorce tax and had the arts portfolio stripped from him! Thankfully, yesterday in question time, Prime Minister Turnbull assured the nation that this legislation will withstand a constitutional challenge, but we will see.

Although Labor has not been given the assurance that we requested, given the national security nature of the bill, we will not stand in the way of this legislation on the issue of whether it is constitutional. That is in essence a matter for the government. (Time expired)

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