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

[by video link] The terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 were first introduced by the Australian Citizenship Amendment (Allegiance to Australia) Bill in 2015. Given the unprecedented nature of that legislation, the then Minister for Immigration and Border Protection, now the Minister for Home Affairs, gave a written undertaking that the new provisions would be reviewed by the Independent National Security Legislation Monitor by 1 December 2018. The Minister for Home Affairs did not honour his written undertaking. Instead, he asked the Attorney-General to introduce the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill on 28 November 2018. That bill would have amended one of the terrorism-related citizenship loss provisions, section 35A, and left the other two, sections 33AA and 35, untouched. It was a very bad piece of legislation, and it was rightly opposed by Labor.

Instead of proceeding with that rushed and misconceived bill, the Morrison government actually did what Labor urged it to do. It abandoned the bill and referred all of the terrorism-related citizenship loss provisions to the Independent National Security Legislation Monitor for review. The then monitor, Dr James Renwick SC, completed his review in August 2019 and made a number of very significant recommendations for reform. Most significantly, Dr Renwick recommended that sections 33AA and 35 of the Australian Citizenship Act be urgently repealed and replaced. Notably, Dr Renwick also recommended that section 35A, the provision that the Morrison government had tried so hard to amend in late 2018 and early 2019, be retained in its current form.

Under sections 33AA and 35, any dual nationality citizen of Australia loses their Australian citizenship automatically if they engage in terrorism related conduct that repudiates their allegiance to this country. That occurs without any decision being made by the minister or another Australian authority. Indeed, a person's Australian citizenship can be cancelled without anyone even being aware that it has happened. Dr Renwick found that sections 33AA and 35 operated in an uncontrolled and uncertain manner. ASIO subsequently told the Intelligence and Security Committee that the fact that those provisions operate automatically may lead to unintended or unforeseen adverse security outcomes for Australia. This is because there may be circumstances in which the better security outcome would be that a person's Australian citizenship is retained, even if the person meets the strict legislative criteria for citizenship cessation under section 33AA or section 35. In other words, measures that the government said would make Australians safer could, in some circumstances, place Australians in greater danger. That is an intolerable state of affairs.

The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 would repeal sections 33AA and 35—the provisions that create this intolerable state of affairs—and replace those provisions with section 36B, a ministerial decision-making model of citizenship cessation. In doing so, the bill would implement several of the Independent National Security Legislation Monitor's key recommendations. For that reason, Labor support the bill.

As ASIO told the Intelligence and Security Committee in supporting the move to a ministerial decision-making model:

While fully supporting the move to a ministerial decision-making model, Labor does have concerns with aspects of the citizenship cessation bill. To the extent possible, Labor believes that the bill should be consistent with the following key principles.

First, given that the key concern about sections 33AA and 35 of the Australian Citizenship Act relates to the automatic operation of those provisions rather than their inadequate scope, the proposed new section 36B should not expand the range of circumstances in which an Australian may lose his or her citizenship beyond the scope of the existing provisions. Second, any decision by the minister to deprive a person of his or her Australian citizenship must be subject to what Dr Renwick described as 'meaningful review'. Third, the limitations and safeguards in respect of the power to cancel a person's Australian citizenship should be consistent with the fundamental democratic values of our nation that the provisions are designed to protect, including the rule of law, and reflect the seriousness of depriving an individual of Australian citizenship. Fourth, the bill should be consistent with Australia's international obligations, including the Convention on the Reduction of Statelessness. Fifth, the bill should be placed on the strongest possible constitutional footing.

Had the government implemented each of Dr Renwick's detailed and considered recommendations, Labor believes, the citizenship cessation bill would be broadly consistent with each of these principles. As it happens, the government has not implemented each of the monitor's recommendations, nor has the government adequately explained why it has failed to do so. In respect of the first principle that I have just mentioned, section 36B would not merely replace sections 33AA and 35 with a ministerial decision-making version of those provisions it would also expand the range of circumstances in which the minister would be able to cancel a person's citizenship. For example, under section 36B it would not be necessary for the minister to be satisfied that a person engaged in proscribed conduct with any particular intention. By contrast, under the existing section 33AA a person must have in fact engaged in proscribed conduct and must have in fact done so with a terrorism related intent. Section 36B would apply retrospectively to conduct that occurred on or after 29 May 2003. By contrast, the provisions that section 36B would replace—sections 33AA and 35—have no retrospective application at all, and under section 36B it would no longer be necessary for a person to in fact be a citizen or a national of another country; it would only be necessary for the minister to be satisfied that the person would not 'become a person who is not a national or a citizen of any country'.

None of those features of the new section 36B has been sufficiently explained or justified. In an additional comment to the intelligence and security committee's report on this bill, tabled yesterday, Labor members of the committee set out in detail a number of problematic features of the bill and how those matters ought to be addressed. I would urge people to read the additional comments.

While I do not have time in this speech to elaborate on all of Labor's concerns with the bill, I would like to put a few additional matters on the record. The power to cancel a person's Australian citizenship is an extraordinary power. It must only be exercised in extreme circumstances and only where doing so is in the interests of the wider Australian community. And this extraordinary power must be subject to stringent safeguards. Australian citizenship is not akin to a visa and it must never be treated or thought of like one. And yet there are a few worrying signs that the current government appears to regard Australian citizenship as if it were no more significant than a visa. For example, several aspects of the proposed section 36B are very closely modelled on section 501 of the Migration Act 1958—that being the minister's power to cancel a person's visa on character grounds—and in an appearance before the intelligence and security committee last year a senior official from the Department of Home Affairs repeatedly characterised Australian citizenship as a mere privilege, a proposition that was strongly and rightly rejected by multiple committee members, including, to his credit, the member for Goldstein.

It is partly because of the value that Labor places on Australian citizenship that we believe that the power to take it away should only be exercised in extreme circumstances and subject to stringent safeguards. To that end, the Independent National Security Legislation Monitor recommended that the minister's determination of whether a person had engaged in prescribed terrorist conduct be reviewable by the Administrative Appeals Tribunal. It is true that there is currently no merits review under sections 33AA and 35, but that is because the issue of 'merit' does not arise in a legal sense, because those provisions operate automatically. There is no 'decision' by the minister to review. Also, a person must have, in fact, engaged in prescribed conduct with terrorism related intent in order to lose his or her citizenship under section 33AA, which is a higher threshold than ministerial satisfaction.

The government has offered no coherent justification for rejecting that modest proposal by the monitor for merits review by an independent tribunal. The government's failure to offer any proper justification for the retrospective application of section 36B, or section 36D for that matter, is equally concerning. It was after all the current Attorney-General who, in late 2018, said:

Retrospective criminal law is probably the most serious and unwarranted thing that any government anywhere, in any democracy can do…

Yet here they are introducing retrospectivity on a huge scale.

It is not Labor's position that retrospective laws, including retrospective laws that affect fundamental rights, can never be justified in any circumstances, but the circumstances will be very rare and such laws must always be clearly justified. This may be one of those rare circumstances where the government has not explained why that is so. In fact, far from justifying the retrospective application of these new terrorism-related citizenship loss provisions, the government has said that it does not even know how many individuals are likely to become immediately subject to having their Australian citizenship cancelled if these provisions become law. Those matters were not even considered in the development of this legislation. That is an extraordinary and unconscionable failure of basic due diligence, for which the Minister for Home Affairs and his department should feel embarrassed. Of course, I know, from long experience now, they will not be.

As I noted before, Labor members of the intelligence and security committee have set out in detail our concerns with the citizenship cessation bill in an additional comment to the committee's report. The government should read that additional comment carefully. Labor members of the committee have also made a number of recommendations to improve the bill, but we have also said that the government's adoption of those recommendations is not a condition of Labor's support for the bill. That is not because we think those recommendations are unimportant. Rather, it is because the urgent repeal of sections 33AA and 35 is more important. And, while the ministerial decision-making model in the citizenship cessation bill is far from perfect, that model would at least provide the government with the flexibility to better manage the risk of potential adverse security outcomes.

The passing of laws, including this citizenship cessation bill, does not guarantee better security outcomes. Ultimately, it will be up to the minister to exercise the extraordinary powers in this bill responsibly and in the best interests of Australia. The Minister for Home Affairs will be personally and individually accountable when it comes to the use of these powers. It follows that if the powers are exercised in a manner that is contrary to Australia's national interest, including in a matter that puts the lives of Australians here or overseas at greater peril, responsibility will lie with the minister.

I'd like to end by noting that the recent decision by the High Court in Love and Thoms against the Commonwealth has arguably called into question whether the Commonwealth has the power to cancel a person's Australian citizenship, and the High Court is about to hear another case that is likely to provide more clarity on this question. On multiple occasions, Labor has asked to see the Solicitor-General's legal advice in respect of the constitutionality of the existing terrorism-related citizenship loss provisions. The government has repeatedly refused to provide Labor members of the intelligence committee with a copy of that advice, even under strict conditions of confidentiality and notwithstanding that those members frequently receive information of the most classified nature. Instead, the government has provided repeated assurances to the parliament and the Australian people that the terrorism-related citizenship loss provisions are on a strong constitutional footing. The worth of those assurances has been found wanting in the past and will ultimately be determined by the High Court.

See this speech in context