Thursday, 3 September 2020
Australian Citizenship Amendment (Citizenship Cessation) Bill 2020; Second Reading
( I rise to speak briefly in this debate on the Australian Citizenship Amendment (Citizenship Cessation) Bill 2020. This is another instalment of counterterrorism legislation, part of a steady drumbeat of national security measures presented to this parliament over the past two decades. Although the bill itself amends the Australian Citizenship Act 2007, it's first and foremost an intelligence and security measure. And it is a measure that involves major questions of principle and process as it amends the terrorism related citizenship cessation provisions that were introduced in 2015 in response to the threat of foreign terrorist fighters returning to Australia from Syria and Iraq.
Depriving a person of citizenship is a very significant measure, not something that is ever to be considered lightly. The Minister for Home Affairs, speaking in the other place, described the current legislation as: 'An effective legal and administrative measure that has removed dual citizens from the Australian community who fought as terrorists and extremists in Syria and Iraq.'
This bill amends the current legislation by establishing a ministerial decision-making regime with respect to the cessation of Australian citizenship, replacing the automatic operation of law provisions. Under this new legislation, the Minister for Home Affairs will be able to terminate a person's Australian citizenship if satisfied that their conduct demonstrates a repudiation of their allegiance to Australia and that it is not in the public interest for the person to remain an Australian citizen.
The bill does seek to implement a number of recommendations by the Independent National Security Legislation Monitor. The INSLM recommended a ministerial decision-making model, while retraining the three criteria by which a person may be considered to have repudiated their allegiance to Australia. First, a person can cease to be a citizen if they engage in specified terrorist conduct. Second, a person can cease to be a citizen if they fight for or are in the service of a specified terrorist organisation overseas. Finally, a person can cease to be a citizen if they have been convicted of a specified terrorism offence by an Australian court.
The bill retains provisions that a person is not considered in the service of a declared terrorist organisation if acting unintentionally or under duress or if providing humanitarian assistance. In accordance with Australia's obligation under international law, the bill also provides that no person will have their citizenship terminated unless the minister is satisfied that they are citizens or nationals of another country. In determining whether to cease a person's citizenship, the minister must also have regard to public interest criteria, including the threat a person poses to the Australian community, Australia's international relations and the person's connection with another country or citizenship. There are review mechanisms and a measure of transparency. Senator Stoker talked of those.
The minister must report to the parliament and the Parliamentary Joint Committee on Intelligence and Security on the use of these measures. The bill also amends the Intelligence Services Act to give the PJCIS until 30 June 2021 to review the new provisions. It is here, however, that my main concerns with the legislation arise. I'll just indicate I am supporting the legislation. In deciding whether to deprive a person of Australian citizenship, the Minister for Home Affairs will almost inevitably include reliance on secret information gathered by the Australian intelligence community—the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Signals Directorate or the Australian Federal Police. Our intelligence community has grown greatly in size and in its budget. The parliament has repeatedly extended the responsibilities and powers of those agencies. They have a vastly expanded mandate to protect the Australian people and to gather information and make decisions that may profoundly affect individual citizens.
In the case of this legislation, the advice of our intelligence agencies may indeed result in a person being deprived of their fundamental rights as a citizen. While many members in parliament are prone to heap praise on our intelligence services—and I too acknowledge their professionalism—they are not infallible. They do make mistakes. The case of Mohamed Haneef is but one case where our intelligence agencies got things horribly wrong.
Intelligence is often opaque and ambiguous. Consequently, I have long been of the view—and I mentioned this in my first speech to the parliament—that the parliament's preparedness to increase the powers and authorities of our intelligence services, and of the ministers who exercise control over these agencies, must be matched with an equal preparedness to improve scrutiny of the intelligence community by the parliament. In this regard, it is a major deficiency, unique to Australia amongst the so-called Five Eyes, that our Parliamentary Joint Committee on Intelligence and Security is explicitly excluded from being able to review the operational activities of our intelligence community. This is a major deficiency in democratic accountability. On several occasions, I've introduced amendments to the Intelligence Services Act to extend the mandate of the PJCIS to cover operational matters. There should be nothing that is controversial about such a measure. The measures I'm proposing are closely modelled on the provisions governing the role of the Canadian parliament's intelligence oversight committee. So far, both the coalition government and the Labor opposition have declined to support these measures. Even though Labor has expressed in-principle support, they just can't bring themselves to vote for it.
The provision in this bill for a one-off PJCIS review of the administration of these new ministerial powers is no substitute for ongoing review of operational matters—the business end of the intelligence community. I know that the minister may rise and suggest to me that this oversight is covered by the Inspector-General of Intelligence and Security. I have a letter in my office from the IGIS—who I greatly respect—that demonstrates that her purview is in fact limited. She can't review the directions of cabinet, for example, even though those directions may affect policy, may affect international relations and are typically the sorts of things that parliaments have direct responsibility for. We can't subcontract out our constitutional responsibility of oversight, and that is in fact what we have done. I'm not in any way suggesting that the Hon. Margaret Stone is not competent; she is most competent. But it is the parliament's constitutional responsibility to have oversight of all aspects of government.
The government may also stand up and say that this is not the time and the place to consider this, but I would say: just when will it be the time and the place? More effective parliamentary oversight can't be put on the backburner. The need grows greater with every new piece of counterterrorism legislation introduced in this parliament. So today I will give both sides—government and opposition—another opportunity to match their support for increased intelligence and security powers with a commitment to democratic scrutiny and accountability.