Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

by leave—I move Australian Democrat amendments (3), (8) and (9) on sheet 4868:

(3)    Clause 17, page 19 (after line 28), after subclause (4), insert:

  (4AA)    Subsection (4) does not operate so as to refuse the application of a stateless person unless the person has been convicted of a national security offence.

(8)    Clause 24, page 34 (after line 12), after subclause (4), insert:

  (4AA)    Subsection (4) does not operate so as to refuse the application of a stateless person unless the person has been convicted of a national security offence.

(9)    Clause 30, page 43 (after line 13), after subclause (4), insert:

     (4A)    Subsection (4) does not operate so as to refuse the application of a stateless person unless the person has been convicted of a national security offence.

These proposed amendments relate to the treatment of a stateless person and basically go to trying to increase the protection of such people from being put in a circumstance where they are at risk of being removed from Australia and in a position of statelessness globally. It was an area that was examined during the Senate committee inquiry and it is one where I believe there are not adequate protections.

The first amendment goes to adverse security assessments. We have just been talking about that to some extent—where a person cannot be approved to become a citizen at a time when an adverse security assessment is in place. I should point out that adverse security assessments do not automatically mean a person is a sure-fire terrorist or something like that. The relevant provision in the bill before us says at clause 17(4) that that adverse security assessment relates to whether somebody is directly or indirectly a risk to security. An indirect risk to security can be a lot wider and a lot looser than people may suggest.

The current wording in the legislation at clause 17(4) says that ‘the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment ... is in force’. The Democrat amendment suggests that that should not operate so as to refuse the application of a stateless person unless they have been convicted of a national security offence. It is basically an exemption if it is applying to a stateless person. Again, at least as I would read it, it does not mean that the minister would be forced to give that person citizenship but it does mean that it would give them some leeway rather than as currently applies under subclause (4), where the minister simply cannot approve that person becoming an Australian citizen if they are subject to an adverse security assessment.

It should also be emphasised that my understanding of things currently under the Migration Act is that if people are subject to an adverse security assessment and they are outside the country, they cannot get in in the first place. So this would be an assessment that would apply to people who are already resident in Australia and do not have citizenship of any other country. That would apply to a fairly small number of people. But, as I said earlier, there are those rare occasions that throw up fairly difficult decisions. In the case of stateless people, there are people that, by definition, at least in some respects, are in quite a vulnerable circumstance. We believe that the stronger test of refusing an application if they are convicted of a national security offence is a better one for stateless people in those rare circumstances than the current one where an adverse security assessment is in place.

It does, to some extent, touch on the previous amendment moved by Senator Nettle. For the record, I should note that the Democrats were supportive of that amendment. We saw this not in relation to a citizenship matter but in relation to a migration matter—not just with the Scott Parkin circumstance but also and perhaps even more unforgivably in regard to the two Iraqi refugees who were marooned on Nauru for years as a consequence of an adverse security assessment. Because they were outside the country, they were in an even worse circumstance where they were not able to have any sort of judicial review.

As Senator Ludwig rightly said, in circumstances where people are in the country there is a limited scope of judicial review, although I should note with the Scott Parkin case there has been fairly strong resistance by ASIO and by the federal government themselves about the scope and nature of what is being able to be reviewed. I understand that matter is still being determined and assessed by the courts so I will not go into it further, but it is not a particularly comprehensive and thorough form of review that is available to people, or at least may well turn out to be the case.

I think the very small number of vulnerable people who are in a stateless circumstance should not have the security of a citizenship application refused automatically just because of the adverse security assessment. As I said, that does not mean in itself that they are a serious risk to the community. An indirect risk to security can mean a lot of things, as we saw of course with one of those two refugees who were stuck on Nauru. A couple of years later that person, after having been brought to Australia because of serious health concerns, then had another ASIO review and, for reasons that I suspect nobody will ever know, was suddenly found not to present an adverse security risk to Australia. Quite what could have changed for that person when all they did in the intervening year or two was to stay stuck on Nauru, how they could over that period of time have ceased to be a security risk, we will probably never know. Attempts to try and question ASIO about this in Senate committee hearings met with the not unexpected stonewall that they were not able to comment on national security matters. It is all well and good for us to note this circular catch-22 situation of being unable to get information about security matters because it is a security matter. But when you are the person stuck with that adverse assessment, and the consequence is a lifetime of insecurity and uncertainty and of being in limbo, then it is not just a curious logical conundrum, it is a very serious circumstance. That is why we believe these amendments are desirable.

It should be re-emphasised that what we are putting in place here is a whole new citizenship act. The bill before us updates, modernises and improves, by and large, the existing Citizenship Act and replaces it—and if there is ever a time to make sure we get it right it is at the beginning, when we are putting it in place. I believe this is one area where, whilst it will only affect a small number of people, an improvement can be made. It is an important improvement for ensuring better rights for people who are vulnerable, for stateless people who may otherwise be left in limbo due to what is, in effect, a completely unchallengeable and unknowable security risk assessment from ASIO.