Tuesday, 1 December 2015
Australian Citizenship Amendment (Allegiance to Australia) Bill 2015; Second Reading
I rise to oppose passage of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. This is the fifth major piece of national security legislation from this government. I have opposed them all, not because I discount the importance of national security but because, in every case, they have eroded the rights and freedoms of Australians. As the saying goes, 'those who trade essential liberty for a little temporary safety end up with neither.' The core problem with this bill is that it allows the executive to exercise judicial power when the minister revokes an individual's citizenship. That is a violation of the doctrine of separation of powers. It also applies retrospectively. Thus, I plan to move two amendments that would make the bill better.
This bill came into existence at 5:34 last evening, when the government, in cahoots with Labor, added 14 pages to the previous version of its own bill. Now, those of us who have never seen it before—crossbench and Greens senators—are required to vote on it. This is profoundly undemocratic. Between us, we represent just under one-third of the Australian electorate. It is also a blatant repudiation of the Senate's role as a house of review.
I think it is useful to remind the Senate of what has gone before in this national security area. All prior national security legislation was also passed with unseemly haste, including some significant aspects that were passed without the opportunity for senators to quiz the minister about the legislation in a committee stage. And there is still no crossbench or Greens representation on the parliamentary committee which reviewed each bill.
The first tranche of national security legislation, National Security Legislation Amendment Bill (No. 1) 2014, passed with Labor's support on 25 September last year. What may have been a drafting error in one of the sections dealing with special intelligence operations opened a loophole that sanctioned torture. In short, ASIO officers participating in a special intelligence operation—something defined by ASIO itself, without external review—were to receive immunity from prosecution for all offences save the most serious ones.
It became clear that the intention was to protect officers from prosecution in the event that they joined a proscribed terrorist organisation or had to commit an offence to prove their bona fides. However, no-one, including the Parliamentary Joint Committee on Intelligence and Security and the shadow Attorney-General, realised the same provision provided cover for acts that amount to torture—the sort of torture that does not leave marks. At that point I deployed the 'nuclear option' and threatened to refuse to cooperate with the government in any way but the most limited. It was sufficient to ensure the bill was amended, although I was treated to a great deal of condescension in the process.
As passed, the bill introduced a significant number of nasties, among them expansion of the control order and preventative detention order regimes, and section 35P, which allows imprisonment for 10 years for intentional or reckless disclosure of an ASIO special intelligence operation. Section 35P also provides no public interest defence. Regrettably, the press only took an interest once it was enacted. I also opposed the bill in part because the Attorney-General failed to show how ASIO's existing powers were insufficient for them to do their jobs. They already had extensive powers.
The second tranche of national security legislation was the so-called foreign fighters bill, which passed the Senate on 29 October last year. It, too, attacked freedom of speech and of the press. The bill introduced a penalty of two years imprisonment for unauthorised disclosure of a delayed notification search warrant. Once again, there is no public interest defence. The provision seems calculated to remove the AFP from any and all journalistic scrutiny.
The bill also introduced an offence of 'advocating terrorism', punishable by a term of five years. It goes far beyond 'incitement to violence' at common law. The new offence requires only that the speaker is 'reckless' as to whether what is said causes terrorism. Incitement, at common law, has always required the element of intent. The new offence also takes in the 'promotion' of violence—a term broad enough to capture a general statement endorsing revolutionary violence in a third country. This is again different from incitement, which has always required that words ought to operate directly on the intended audience. Minister Brandis complained that the problem with incitement is that it is difficult to prove. This seems to be rather the point. It is meant to be difficult to prove because, if it were easy to prove, the authorities would be able to lock people up for things they say pretty much willy-nilly.
Also worthy of note is that organisations can be 'proscribed', or listed as terrorist organisations, on the basis of 'advocating terrorism'. Once again the definition of 'advocacy' employed is considerably broader than that captured by 'incitement' at common law. The consequences of listing are severe, and there is a real danger that community organisations run by amateurs may finish up being listed based on only a few members' views.
The third tranche of national security legislation, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, expanded the control orders and preventative detention orders regime, a regime that had already been expanded in the first tranche of legislation. These regimes are obnoxious because they are contrary to the basic principle that people should not be deprived of their liberty without a finding of guilt. Both impose significant constraints on an individual's liberty—including imprisonment, in the case of preventative detention orders—for the purpose of preventing terrorist acts. Alarmingly, the preventative detention order regime requires surveillance of the entirety of an individual's telecommunications activities, including—as Nick Hanna discovered when he represented one of the men arrested in the September 2014 counter-terrorism raids in Sydney—discussions between a solicitor and his client.
The fourth tranche of legislation was the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. It is the one mandating that ISPs retain everyone's metadata for two years. In my view, it is the most illiberal of all five pieces of national security legislation. It applies to everyone indiscriminately, treating us all as presumptive criminals. Everyone has something to hide, and something to fear, from mandatory data retention. It is one thing to require monitoring of certain individuals where there is reasonable cause. But the idea that the government needs to store everyone's metadata without cause, including my 85-year-old mother's, should not be countenanced. Data retention will do nothing to save us from terrorists. Paedophiles are already canny enough to use the 'darknet' and avoid it. Instead, data retention places the entire population under surveillance, no matter who they are or how blameless their lives.
So I come to the bill before the Senate today. It provides for two ways for citizenship to be revoked: by 'conduct' and by 'conviction'. In the 1948 Citizenship Act, there was only one 'conduct' based ground for revocation—service in the armed forces of a country at war with Australia. This bill adds more, including service in and to terrorist organisations, travel overseas to fight with terrorist organisations, and financial aid and assistance to terrorist organisations, of which the Kurdistan Workers' Party is listed as one.
'Conduct' based revocation is considered to be 'automatic' but is still brought about by executive government with no need for judicial involvement. This bypassing of the judiciary was not a concern when a person's conduct was as clear-cut as donning an enemy's uniform and engaging in battle directly against the Australian Defence Force. But, under this bill, a bureaucrat will make fine distinctions about what you were doing and who you were doing it with and will not need to bother about what your intentions were. The 1948 act did not provide for revocation of citizenship based on conviction. This legislation provides for citizenship to be revoked once a conviction has been secured for a number of offences. Such revocation of citizenship is nevertheless an executive act, done by the minister. It is not done by a court.
The bill nonetheless seeks to make revocation of citizenship self-executing. The minister is deemed not to be the decision maker. His role is reduced to that of administrative functionary. He merely issues a notice after citizenship has been renounced by the person to whom the notice is issued. The notice, we are assured, does not have any judicial effect. I am a businessman, not a constitutional lawyer. Maybe this verbal sleight of hand will win the day in the High Court; I do not know, but tinkering with the inner workings of the doctrine of the separation of powers is not something that should be pushed through with such haste. I note that I received a copy of the Attorney-General's letters to shadow Attorney-General Dreyfus outlining the Solicitor-General's advice at 7.28 pm last night. The Solicitor-General's advice itself has still not been made public.
In addition to a minister exercising power that should properly be exercised by a court, this Bill assumes there will always be a war on terror. It will therefore remain law forever unless amended now or repealed one day in the future. Just as with the previous four bills, that is not desirable. To that end, the amendments I will move at the committee stage will apply a sunset clause of 10 years to the bill. Sunset clauses allow draconian laws to automatically expire at a set date—unless a future parliament decides otherwise. They are not an ideal solution. As others have said, if laws were well-drafted in the first place, sunset clauses would not be necessary. I propose sunsetting the bill because I refuse to accept the suggestion that there will always be a war on terror. We will not always be at war with Eurasia.
The bill also provides for the retrospective application of the criminal law. Although this retrospectivity is limited and applies only to a small number of persons who will attract little public sympathy, it is contrary to the rule of law and to fundamental principles of the common law. Australians considering their conduct now should be able to weigh up the consequences based on the law as it stands now. The fact that I need to point out such a basic tenet is of great concern. Retrospective action is not necessary, as the government already has a suite of powers to ensure that people who have served their sentences for terrorist offences are monitored. As such, I will move amendments to ensure that no part of the legislation applies retrospectively. We can do better than destroy our liberties in the name of securing ourselves against an illiberal enemy.
Finally, I wish to say a few words on citizenship as a concept. I do not happen to believe our fundamental rights flow from citizenship—of Australia or any other country. I think our rights flow from being human and are inherent. However, for better or for worse, we live in a world where legal rights often are contingent on citizenship. If citizenship is to be revoked, it should be revoked by a court in all but the most straightforward circumstances, such as when a person lines up against the Australian Defence Force in battle.
Inevitably, this bill creates two tiers of citizen: people who can have their Australian citizenship revoked and people who cannot. The answer, 'Well, some people have another one' does not really cut it. People have dual citizenship thanks to immigration, not because they bought their other citizenship in a shop.
Terrorism can be beaten without our losing our rights as free people. Just as I opposed the previous national security legislation on those grounds, I also oppose this bill.