Senate debates

Thursday, 3 September 2020


Australian Citizenship Amendment (Citizenship Cessation) Bill 2020; Second Reading

3:58 pm

Photo of Jenny McAllisterJenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

I rise to speak on the Australian Citizenship Amendment (Citizenship Cessation) Bill 2020, which amends the Australian Citizenship Act, and I rise to support the bill. I want to make a few remarks about Labor's general approach to national security in the context of my membership of the PJCIS. I will start by thanking all the members of that committee for the deliberative way they approached this task. I point to that characteristic particularly because I want to talk about the nature of the offer that Labor makes on national security.

We consider that national security is one of the most important tasks that a government must deliver and that a parliament must deliver. What that means, certainly in my own approach to my work on the committee and, I believe, that of my fellow Labor members and senators as well, is that we will never seek to unnecessarily politicise the work that is put before our committee. We think we have a serious obligation to engage with the evidence that is put before us, and that evidence is drawn from our national security agencies and from the many civil society organisations that also engage with and contribute to our committee. To all the people who contributed to the committee's deliberations in this particular case, I thank you.

Labor's support for this bill is not without qualification. Labor members of the PJCIS provided an extensive set of additional comments, which you can read in the report, and I will talk about those a little later in my remarks. Our support for this legislation, at heart, arises because this legislation implements one of the most important recommendations made by the Independent National Security Legislation Monitor and remedies one of the most important and significant flaws in this bill in a way that is not only very important for Australia's national security but also very important for Australia's legal system.

I want to go to the review undertaken by Dr Renwick, who recently completed his term as the Independent National Security Legislation Monitor. I want to place on record again my thanks to Dr Renwick for his service to our country and for his very practical support for the PJCIS during his period in office. Dr Renwick undertook a review of the citizenship cessation provisions, which he completed last year. Consistent with his charter, he assessed whether or not the laws were necessary and proportionate and he found in broad that the laws indeed were. He examined the two means by which a citizen may lose their citizenship and he made two observations. In relation to the provisions that arise from a conviction, the conviction based provisions, he said that this provision passes muster under the INSLM Act and should continue, as it is or will be necessary. But he went on to say, in contrast, that the operation of law provisions do not pass muster under the INSLM Act and they should, with some urgency, be repealed but be simultaneously replaced with a ministerial decision-making model.

At its heart, that's what the legislation before us does, and it's on that basis that Labor provides support, despite some qualifications, because there are things that we would do differently. The INSLM went through and made some very important observations about the consequences of these operation-of-law provisions in making his case for repeal. He made the argument that they operate in an uncontrolled manner, so a person who has committed the most serious of offences and is an undoubted threat to Australia while remaining a citizen is treated the same as one whose behaviour is at the lowest end of the spectrum of criminal behaviour. He pointed out that they operate in an uncertain manner and it will often not be possible for authorities to know when citizenship has ceased. He pointed out that they lack the traditional and desirable accountability which comes with a person, court or tribunal taking responsibility for a decision. He observed that they potentially cause unintended and not easily contained effects on Australia's relations with other countries. And he also observed they cause confusion and potential legal difficulties for ASIS and ASD when those agencies seek to exercise their powers in relation to Australian citizens, because of the uncertainty they create about who is and is not a citizen. It was for all those reasons he recommended a repeal, and that is the proposition before us.

These reservations were echoed by ASIO's evidence to our committee. ASIO gave a balanced indication, indicating that at some times the removal of citizenship is important and at other times it is not the most appropriate tool, and that a judgement must be made on which occasion citizenship should be removed. In their evidence, they said:

In some instances, citizenship cessation will curtail the range of threat mitigation capabilities available to Australian authorities. It may also have unintended or unforeseen adverse security outcomes—potentially including reducing one manifestation of the terrorist threat while exacerbating another. There may be occasions where the better security outcome would be that citizenship is retained, despite a person meeting the legislative criteria for citizenship cessation …

That's an important qualification and it's an argument for consciously determining whether or not a person loses their citizenship, rather than allowing it to operate automatically, as is presently the case under the Citizenship Act.

As I said, we have some recommendations about the way the government has gone about doing this. We've made a series of recommendations in our additional comments that we consider ought to occur. We think that there were a range of helpful suggestions made by the Independent National Security Legislation Monitor about review and the provisions for review. It's disappointing that the government would not engage with those recommendations. We are concerned about statelessness, and we think that there were other ways that the bill might have approached the question of statelessness. We considered that there ought to have been an element of intention when the minister is considering prescribed conduct. These reservations, as I said, are set out in our additional comments. But Labor senators did not conclude that we ought to insist upon these amendments. The core task of the bill, which is to repeal the operation of law provisions, is too urgent to be left any longer. Labor senators, on those grounds, recommend the passage of the legislation.


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