Thursday, 3 September 2020
Australian Citizenship Amendment (Citizenship Cessation) Bill 2020; Second Reading
The Australian Greens will be opposing this legislation. The Australian Citizenship Amendment (Citizenship Cessation) Bill 2020 will repeal the self-executing provisions that currently operate to automatically remove a person's citizenship. This would normally be a good thing and something that we would welcome and support. However, the bill also provides an alternative scheme that allows the minister to make determinations to remove a person's citizenship, but—and this is critical—the safeguards in place to ensure that a person is a dual citizen before their citizenship is revoked are weakened by this legislation. The minister already has far too many discretionary powers over people's lives. This is a government and a minister that has attacked and weakened the rule of law in Australia and has undermined the separation of powers in this country, and now the minister wants to be able, with the stroke of a pen, to render people stateless.
This bill responds to recommendations by the Independent National Security Legislation Monitor that current sections in the Migration Act that provide for an automatic loss of citizenship should be repealed with retrospective effect. However, in doing so, this bill will increase the danger that people will be rendered stateless by weakening safeguards in place to ensure that a person is in fact a dual citizen before his or her citizenship is removed. The potential for this legislation to render a person stateless was raised by several submitters to the Parliamentary Joint Committee on Intelligence and Security inquiry, including the Castan Centre for Human Rights Law. In its submission, the Castan centre expressed concerns over the so-called safeguards against statelessness, arguing that they:
… do not provide sufficient protection to remedy the risk that a person may be rendered stateless as a result of the operation of the citizenship cessation provisions.
This is because, unlike in the existing legislation, a determination may be made by the minister even if the minister is incorrect.
As argued by the Australian Human Rights Commission in their submission to the PJCIS inquiry, proposed sections in this bill that are provided as safeguards in fact change the question of whether a person would be rendered stateless from a question of fact to a question of subjective satisfaction of the minister. The Australian Greens agree with that, and we also agree with the Federation of Ethnic Communities' Councils of Australia who opposed this proposed introduction of subjectivity by arguing:
As citizenship is an objective fact, and the potential for devastating and long lasting impact on a person, their family and community—
of becoming stateless—
… the threshold for this determination of cessation of citizenship should not be changed from fact to the Minister's satisfaction.
In their submission to the PJCIS inquiry, the Peter McMullin Centre on Statelessness warned:
The Bill's proposed amendments risk rendering the Australian Citizenship Act 2007 (Cth) (the Act) inconsistent with Australia's international legal obligations.
This includes Australia's obligations under both the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. In that 1961 convention, article 8.1 provides:
A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless.
But that is exactly what Australia, a signatory to the convention, would be able to do on the whim of a minister under the provisions of this bill.
Moreover, the minister would be able to make these subjective decisions to ruin lives and tear families apart by declaring someone to not have citizenship and render them stateless without any judicial or merits review of his or her decision. I want to talk about the diminished judicial review aspect. The Senate Standing Committee for the Scrutiny of Bills raised concerns regarding the court's ability to judicially review subjective citizenship cessation determinations made by the minister and noted that under this bill:
… in a judicial review application, a court would not consider whether or not the alleged conduct had, as a matter of fact, occurred.
Despite all the answers and all the information provided in the response to the committee by the minister, the committee remained concerned that this bill would:
… allow the minister to cease a person's citizenship for conduct that could constitute a criminal offence but without any of the protections associated with a criminal trial, such as the requirement to prove the requisite intention to commit an offence.
This, the committee rightfully argued, could 'unduly trespass on a person's rights or liberties'. This includes the potential for this legislation and its removal of judicial oversight of citizenship cessation powers to render a person stateless, which could lead to indefinite detention in an Australian immigration detention facility.
I also want to speak about the lack of merits review. This legislation also denies people subject to a citizenship cessation determination access to a merits review. When this was raised as a concern by the Senate Standing Committee for the Scrutiny of Bills, the minister essentially defended this provision by arguing that, as a member of parliament and responsible to parliament, a minister's decision should not be reviewable by the Administrative Appeals Tribunal. This lacklustre excuse was rightfully not accepted by the committee. A merits review for decisions by the minister to remove citizenship based on conduct was also recommended by the Independent National Security Legislation Monitor, which argued:
… there should be merits review in the SAD as to whether there could have been or is reasonable satisfaction as to the existence of the requisite conduct for citizenship loss.
These decisions that could have such profoundly devastating effects on people and their families should be subject to judicial and merits reviews that consider facts and not the minister's satisfaction or the reasonableness of his or her decision.
We, along with many other expert stakeholders, also hold significant concerns regarding delegated legislation, sentencing, retrospectivity, procedural fairness and lowered thresholds such as the maximum penalty for terrorism offences that trigger the citizenship cessation provisions being lowered from six years imprisonment to three years imprisonment. Sadly, I won't have enough time in this speech to cover everything that is poor or lacking in this appalling piece of legislation in detail, but I do want to address the constitutionality of this bill and its attack on Australia's doctrine of the separation of powers. The Law Council has yet again—gee, they must be sick and tired of doing this—had to warn this government of the likelihood that one of its bills is unconstitutional. In its submission to the Parliamentary Joint Committee on Intelligence and Security, the Law Council said that it 'remains concerned' that a discretionary decision made by the minister in the absence of a judicial ruling:
… represents executive overreach, and notes that the High Court has held that Chapter III of the Constitution embodies the doctrine of the separation of powers, relevantly meaning that 'the judicial power of the Commonwealth' may only be vested in Chapter III courts.
This is a government that wields its powers of citizenship as a weapon against people whose conduct it doesn't like. This bill gives powers to a minister who has consistently shown that he cannot be trusted to use them responsibly. This is a minister who has no respect for the rule of law and who has at least twice been threatened with contempt of court for refusing a court's direction. This is the minister, Minister Dutton, who was criticised by Federal Court Judge the Hon. Justice Geoffrey Flick for his 'unapologetic reluctance to take personal responsibility for his own noncompliance with the law'. This government might trust Minister Dutton to do the right thing, and the Labor Party clearly trusts Minister Dutton to do the right thing, but I draw their attention to that criticism from Justice Flick and his observation that the current minister, Minister Dutton, has an 'unapologetic reluctance to take personal responsibility for his own noncompliance with the law'. This bill creates dangerous powers in the hands of any minister, but in Minister Dutton's hands they could be disastrous.
The Australian Labor Party, in Senator Keneally's contribution, says, 'Shame on the Greens for not supporting this legislation.' She made that comment because, as she observed, ASIO has argued for these provisions. Well, I say: shame on the Labor Party, who, along with the LNP, display a whimpering acceptance of the views of Australia's intelligence and security apparatus. ASIO do not make the law in this country; we make the law in this country. It might be news to Senator Keneally, but you don't have to slavishly accept everything that ASIO say in terms of law reform in this country. It's our job to make the law, not theirs. They're entitled to their opinions as everyone is, and I welcome ASIO's contribution to the debate, but the simple fact is ASIO have their blinkers on. They want increased powers because they want to be able to control the behaviour of more Australians. That is understandable for ASIO, but it's not understandable for senators in this place to slavishly have the same view.
Unfortunately, the LNP-ALP duopoly on national security is undermining the rule of law in Australia and leading us down the dangerous path to a police and surveillance state in this country. We remain the only liberal democracy in the world that does not have a charter of rights or bill of rights. I'm not surprised that the LNP does not support a charter of rights or a bill of rights, but I am surprised and disappointed that the Labor Party did not take a policy to the last election supporting a charter or bill of rights. In fact, in the previous parliament Labor voted against a Greens motion to establish an inquiry into what a charter of rights might look like in this country. We need a charter of rights in Australia. We desperately need to enshrine the rights of our people so that we can start standing up against the dark journey that this country is on: heading down the path to a police and surveillance state.
The absence of a charter of rights, the bipartisanship on national security, the collusion between the ALP and the LNP on every single national security bill that has come before this chamber in my five years in this place and the many other things: the erosions of rights and freedoms and liberties that we are seeing—all those things collectively is how fascism starts. If you don't think fascism can happen in Australia, I simply refer you to human history. We should not ever consider we are immune from the dangers of fascism, and I think it is highly arguable that, in fact, Australia is in early onset fascism as we debate this bill. For that and for many other reasons, we'll be opposing this legislation.