Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

[by video link] by leave—I'll have a further opportunity to speak about the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 when it is brought on for debate, so I'll be brief. The intelligence and security committee has today unanimously welcomed the government's proposal to replace the existing operation of law citizenship loss provisions sections 33AA and 35 of the Australian Citizenship Act 2007 with a new ministerial decision-making model of citizenship cessation.

In the course of its inquiry into the operation and effectiveness of the existing terrorism related citizenship loss provisions last year, the committee received concerning evidence from ASIO about the operation of sections 33AA and 35 of the Australian Citizenship Act 2007. Under those provisions, any dual national citizen of Australia loses their Australian citizenship automatically, if they engage in proscribed terrorism-related conduct that repudiates their allegiance to Australia. ASIO told the committee that the fact that those two provisions operate automatically may lead to unintended or unforeseen adverse security outcomes. As ASIO explained:

In some instances, citizenship cessation will curtail the range of threat mitigation capabilities available to Australian authorities. It may also have unintended or unforeseen adverse security outcomes—potentially including reducing one manifestation of the terrorist threat while exacerbating another. There may be occasions where the better security outcome would be that citizenship is retained, despite a person meeting the legislative criteria for citizenship cessation—for example, where the Australian Federal Police has criminal charges that could be pursued if the person were to remain an Australian citizen.

By contrast, a ministerial decision-making model of citizenship cessation would allow those potential adverse security outcomes to be better managed or avoided completely. As ASIO also told the committee:

A ministerial decision-making model of cessation would allow ASIO and other relevant agencies scope to advise against citizenship cessation in circumstances where the outcome would be prejudicial to security or where the security risk could be better managed utilising other options. At present, the current operation of law provision does not provide operational agencies with the flexibility required to utilise citizenship cessation to maximum effect.

Like ASIO, the Independent National Security Legislation Monitor found that sections 33AA and 35 of the Australian Citizenship Act operated in an uncontrolled and uncertain manner. In August 2019 the Independent National Security Legislation Monitor recommended that those provisions be repealed urgently and replaced with a ministerial decision-making model of citizenship cessation. Fundamentally, that is what the citizenship cessation bill would do and that is why Labor members support it.

But the ministerial decision-making model introduced by the citizenship cessation bill can be improved. For starters, the government has failed, without adequate explanation, to implement a number of the monitor's other key recommendations, such as the monitor's proposal in relation to the availability of merits review.

Labor members have tabled a detailed additional comment to the committee's report, setting out our concerns with the bill and our concerns with the committee's report. The committee has made three modest recommendations, none of which would require amendments to the citizenship cessation bill. Labor members urge the government to adopt all three of these very modest recommendations, and in particular recommendation 3, which would give the committee a further opportunity to review the terrorism related citizenship cessation provisions in three years time.

In the additional comment, Labor members have urged the government to make a number of significant amendments to the citizenship cessation bill itself, including the implementation of a number of the other key recommendations by the Independent National Security Legislation Monitor. However, given the importance and urgency of repealing and replacing sections 33AA and 35 of the Australian Citizenship Act, Labor members have also stated that the adoption of our suggested amendments is not a condition of our support for the bill. We urge the government to expedite the passage of the citizenship cessation bill, so that two dangerous provisions of the Australian Citizenship Act can be immediately repealed and replaced with a more sensible model of citizenship cessation.

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