George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

I thank honourable senators for their contributions to this debate on what is an important piece of national security legislation. Recent terrorist attacks around the world demonstrate that free and democratic societies face a significant threat to our way of life and to our values. In Australia, since 12 September 2014, when the national terrorism public alert level was raised to high, 26 people have been charged as a result of 10 counterterrorism operations around Australia, which is more than one-third of all terrorism related charges since 2001. Since the threat level was raised last year, the Director-General of Security has indicated that, in some respects, the threat of terrorism has worsened.

On 26 November, along with the Minister for Justice, Mr Keenan, I announced the new National Terrorism Threat Advisory System. Under the system, we are at the level known as 'probable'. This means that individuals or groups have developed both an intent and capability to conduct a terrorist attack in Australia.

Let me acquaint the Senate with the latest information on Australia's involvement in terrorism in the Middle East. According to those who advise us, around 110 Australians are currently fighting or engaged with terrorist groups in Syria and Northern Iraq. At least 41 and possibly as many as 45 Australians are believed to have been killed as a result of their involvement in the conflict, some but not most by suicide. Approximately 30 Australians have returned from the conflict. Around 190 people in Australia are currently being investigated for providing support to individuals and groups involved in the Syria and Northern Iraq conflict, including through funding and facilitation, or are seeking to travel to participate in the conflict on behalf of ISIL. The overwhelming majority of these are young men and in some cases young women.

Over 145 Australian passports have been cancelled or refused in relation to the Syria and Northern Iraq conflict and currently there are more than 400 high-priority ASIO investigations directly relating to Middle Eastern terrorism. In this context, our law enforcement and intelligence agencies are doing everything they can to prevent and disrupt acts of terror by individuals who are radicalised and are planning attacks in Australia. It is the government's duty to ensure that Australia has an effective range of counterterrorism capabilities to meet these emerging challenges. Our law enforcement and security agencies must be given the tools and the resources they need to keep us safe and this the government has done. The measures in this bill add to our capacity to defeat terrorism.

The bill will ensure that dual nationals whose own conduct demonstrates that they have repudiated their allegiance to our country will not retain their citizenship. There is nothing novel about this approach. Section 19 of the Nationality and Citizenship Act 1948, now repealed, provided:

An Australian citizen who, under the law of a country other than Australia, is a national or citizen of that country and serves in the armed forces of a country at war with Australia shall, upon commencing so to serve, cease to be an Australian citizen.

That provision was enacted in1948 as a response to the events of World War II. The explanatory memorandum explained the rationale of that provision, which is the genesis of the current provisions as follows:

During the war years a number of cases came under notice in which persons possessing dual British and (e.g.) German nationality served in enemy forces. It is considered desirable that in such circumstances Australian citizenship should automatically be lost

I draw honourable senators' attention to that last point in particular—the loss of citizenship under the model on which ultimately these provisions are based, at least in part, was said to be automatic. Section 19 of the 1948 act was later re-enacted, in slightly reworded form, as section 35 of the Australian Citizenship Act 2007. It preserved the authenticity of the loss of citizenship in the event of certain repudiatory conduct.

The present bill recognises that the ways in which a person might repudiate their allegiance to Australia have evolved since 1948. The principle underpinning the 1948 provision remains but the range of circumstances in which it may apply has expanded. This bill adapts the law to that expansion and so makes contemporary a legal principle which has been embedded in our law for almost 70 years. That is why the bill expands the range of conduct causing automatic loss of citizenship and expands it beyond service in the armed forces of an enemy country so that automatic loss results also from a range of terrorism-related conduct. We know that in the modern environment threats to states and threats to our nation do not merely arise from the regular armies of other states; they arise from irregular forces assembled under terrorist banners who conduct irregular and terrorist operations both overseas and within Australia as well.

An update to section 35 in the bill, which, as I said, is itself a re-enactment of the 1948 provision, provides for automatic cessation of citizenship where a person engages in what we have come to call 'foreign fighting', in other words a person who fights for or is in the service of a declared terrorist organisation overseas automatically forfeits their Australian citizenship. I wish to emphasis the fact the loss of citizenship is automatic. It comes about by operation of the provision upon the person's conduct. The same was true under section 19 of the 1948 act and of the old section 35 of the 2007 act. Even though under this bill the minister is required to give notice to a person who has lost their citizenship by operation of law, that notice is of a purely administrative character; the notice itself has no effect upon the person's citizenship status. Indeed it can only issue after the citizenship has been lost by conduct and by operation of law

For the purposes of the new section 35, an organisation can be declared a terrorist organisation only if it is already banned under the Criminal Code for engaging in, preparing, planning, assisting in, fostering or advocating terrorism and has demonstrated its opposition to Australia or our interests, values, democratic beliefs, rights or liberties—the very core of what makes Australia such a great nation.

The statutory mechanism for automatic loss of citizenship also includes important safeguards and limitations. For example, a person will not lose their Australian citizenship if the person was providing neutral and independent humanitarian assistance, was acting unintentionally or was under duress, or was acting in the proper performance of a function of the Australian government—for example, service in the military forces of Australia. Important safeguards and accountability mechanisms are attached to this provision. For example, after issuing a notice advising a person of the loss of their citizenship, the Minister for Immigration and Border Protection will be able to exempt the person from the loss of their citizenship in defined circumstances. When considering whether to exempt a person from citizenship loss, the minister must comply with the rules of natural justice and must take account of the matters set out in the bill. This includes the degree of threat the person poses to the Australian community, the public interest and Australia's international relations. In addition, consistently with our international obligations to consider the best interests of children, the minister must take into account whether the person is a minor.

Let me turn then to the new section 33AA. In addition to fighting for a declared terrorist organisation, the bill also provides for automatic renunciation of citizenship when a person engages in certain other terrorism-related conduct. This mechanism is limited to those who engage in the terrorism-related conduct offshore, or engage in that conduct in Australia but leave our shores before being tried. Again, the provision is targeted to the types of conduct that, by their very nature, demonstrate unequivocally that the person has renounced their allegiance to Australia. The provision retains the principle of automatic citizenship loss upon engagement in the relevant conduct based on the model of section 19 of the 1948 act, which, as I have said, has been enshrined in our law for nearly 70 years. The relevant conduct includes both domestic acts of terrorism and international terrorism activities undertaken with the intention of advancing a political, religious or ideological cause and either coercing or influencing the Australian government or the government of a foreign country or intimidating the public or a section of the public. In addition, the minister can exempt a person from the loss of their citizenship under that provision after considering the matters I mentioned earlier.

Secondly, in addition to the provisions dealing with automatic loss of citizenship—that is, renunciation by conduct—the bill provides for the loss of citizenship in another circumstance as well. The minister may revoke a person's citizenship if the person has been convicted of certain terrorism-related offences and has had a sentence of at least six years imprisonment imposed upon them. In the first class of case, the loss of citizenship follows automatically upon the conduct of the person—in this case, following the conviction by a court and the imposition of a sentence of at least six years imprisonment. The loss of citizenship is a ministerial act. As introduced, the bill only provided for revocation of citizenships for individuals convicted after commencement of these provisions. The Parliamentary Joint Committee on Intelligence and Security recommended the bill be expanded to ensure dual citizens convicted of the specified terrorism-related offences before the commencement of the bill also be subject to loss of their Australian citizenship. So, as amended, the bill will allow the minister to revoke the Australian citizenship of a dual citizen who has been convicted of a relevant offence after the commencement of the provisions and where a sentence of at least six years imprisonment is imposed. In addition, the bill will allow the minister to revoke the Australian citizenship of a dual citizen who was convicted of a relevant offence before the commencement of the provisions and who was sentenced to at least 10 years imprisonment.

As I mentioned earlier, this bill includes a range of important safeguards, limitations and accountability mechanisms. Consistent with Australia's international obligations, the bill cannot render a person stateless, which is why its application is limited to persons who hold dual citizenship. A child under 10 years of age cannot lose their citizenship under any of these provisions. A child between the ages of 10 and 14 can only lose their citizenship following conviction in an Australian court for one of the terrorism-related offences set out in the bill. This is an important safeguard which reflects Australia's existing laws prohibiting the prosecution of a child under 10 but allowing the prosecution of a child aged 10 to 14 years, only if the prosecution can prove to the court that the child knew his or her conduct was wrong. That, once again, is an established principle of our law. Further, when considering whether to make a determination exempting a child from loss of Australian citizenship, the minister will be required to consider the age and the best interests of the child. In addition, judicial review, natural justice and a range of legal remedies are available, and the minister will be required to provide notice to the parliamentary joint committee each time the minister notifies a person of the loss of their citizenship and each time the minister exempts a person from citizenship loss and, as well, six-monthly reports to both houses of parliament regarding the use of these provisions.

I have been asked on a number of occasions—and this has been raised by senators in their contributions—as to whether the bill would withstand a constitutional challenge in the High Court. Nobody should make hard and fast predictions about what the High Court might do in a particular case. Some attorneys-general have fallen into that error in the past. It is not an error I intend to repeat. What I can say is that the government has been informed by the best legal advice, including from the Solicitor-General, Justin Gleeson SC; the Australian Government Solicitor; and constitutional law specialists within the Attorney-General's Department. We sought that advice to ensure that the legislation is as strong as we can make it from a constitutional point of view.

The government has sought to give the fullest possible effect to the recommendations of the Parliamentary Joint Committee on Intelligence and Security, which were, of course, unanimous and bipartisan. However, one constitutional risk that the Solicitor-General, Mr Gleeson SC, identified in an earlier version of the government's amendments to the bill related to the implementation of recommendation 15 in the PJCIS report. The problem identified by Mr Gleeson SC was that the minister was the effective decision maker, or could arguably be seen to have been the effective decision maker, in relation to whether a person lost his or her Australian citizenship as a result of terrorist related conduct or of fighting for a declared terrorist organisation—that is, the first of the two mechanisms, renunciation by conduct.

The government proposes changes to its amendments in order to address the constitutional risk identified by the Solicitor-General in an earlier iteration of the bill giving effect to recommendation 15. The effect of those changes was to remove the requirement that the minister must consider whether to spare a person from automatic loss of citizenship under the relevant provisions. I explained the purposes of those changes to the bill in a letter to the shadow minister for immigration, Mr Marles, and the shadow Attorney-General, Mr Dreyfus QC, on 25 November. Let me quote an extract from my letter:

The Solicitor-General is of the view that, by imposing a requirement that the minister consider circumstances of excusal from the operation of section 33AA and section 35, the effect of those provisions is that the minister could be regarded as the effective decision maker, thus violating the self-executing character of the scheme. Were such a ministerial decision to be characterised as an exercise of judicial power, there would be a significant risk that the High Court might take the view that the requirements of chapter III of the Constitution, as explained inter alia by the Boilermakers' case, would make the exercise of the power ultra vires.

The proposed changes directly address the concerns of the Solicitor-General by removing the requirement that the minister must consider exempting persons from the automatic operation of the provisions and by inserting a requirement that the minister observe the rules of natural justice and give reasons only in circumstances where he does make a decision under the relevant provision, but making it clear that he has no obligation to do so; thus obviating the concern that the minister is the effective decision maker.

The changes are specifically designed to maximise the bill's prospects of withstanding a constitutional challenge. These changes have been reviewed by the Solicitor-General and he has now advised that they have a good prospect of being upheld by the High Court. He confirmed that they effect a shift to a model based upon section 46A of the Migration Act 1958, which was upheld in plaintiff M61/2010E v The Commonwealth (2010) 243 Commonwealth Law reports 319.

At a time of heightened security risk, this bill adds to the counter-terrorism measures the government has at its disposal to protect Australians. It does so in a measured way and with appropriate safeguards. It modernises Australia's citizenship laws in a way that builds upon a provision that has been part of our law since as long ago as 1948; that it contemporises that long-standing provision to the new age of terrorism. In doing so, the bill clarifies the core responsibility of allegiance that goes hand in hand with citizenship.

I thank honourable senators for their contributions. I particularly thank the Parliamentary Joint Committee on Intelligence and Security for its industry in reviewing the bill and the chair of that committee, Mr Dan Tehan MP. I also thank the lawyers within the Australian Government Solicitor and within the constitutional law unit of my department and, of course, the Solicitor-General, Mr Justin Gleeson SC, for their very hard work in ensuring that this bill is in the best possible shape. I commend the bill to the Senate.