Senate debates

Tuesday, 1 December 2015


Australian Citizenship Amendment (Allegiance to Australia) Bill 2015; Second Reading

6:23 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

Today the Senate is being presented with the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, a bill that provides for three new ways by which a person who is a dual national can cease to be a citizen of our country. This is a reactionary bill that seeks to provide the Minister for Immigration and Border Protection with the power to, in effect, remove Australian citizenship from dual nationals if they meet the criteria established in this legislation.

The Greens believe that citizenship is too precious a gift and confers too many important rights to be effectively stripped at the whim of a government or at the whim of a minister. We believe that this legislation runs counter to the rule of law, implies a lack of confidence in Australia's judicial system and does not provide natural justice to potentially impacted Australian citizens. It is worth pointing out that this is an Tony Abbott era bill being continued by the Turnbull government, as have so many other policy settings, such as emissions reduction targets, fossil fuel subsidies and the detention of women and children seeking asylum. This legislation owes far more to the government's desire to be seen to be doing something to respond to the domestic and international challenges of violent extremism than it does to a genuine desire to make Australia and Australians safer at home and overseas. In fact, it is strongly arguable that it allows for the minister to make the world, and therefore Australia and Australians, less safe.

The Greens believe that the best place for Australian citizens who are violent extremists is in custody here in Australia. We have a duty to people from other nations and to our loved ones who are living and travelling overseas to ensure that any of our citizens who commit acts of violent extremism are dealt with by the justice system here in Australia. They should be charged, convicted and locked up in secure Australian prisons where they can do no further harm. This can be achieved under existing provisions of the Criminal Code Act 1995, including divisions 101 and 117. Amendments to the Foreign Evidence Act 1994 in made in 2014 made it easier to obtain admissible evidence in regions that are in severe states of conflict and where there is no functioning government or where the legitimacy of the government is not recognised by Australia. This makes successful prosecutions more likely.

If this bill passes, Australia will be able to effectively export people labelled as terrorists to other countries that are less able to contain the threat they pose—to export violent extremists into a global marketplace of the displaced, the disenfranchised, the radicalised and the violent. This would make the world a less safe place for all its citizens, including Australians. It should be self-evident that we cannot make Australia safer by making other countries more dangerous, but that is exactly what this law provides for. Violent extremism does not respect or distinguish between national borders, and if there is one lesson we have learnt from the tragic events in Paris, Beirut and Bamako it is that making the world safer from violent extremism requires a high level of international cooperation. This bill is the antithesis of that and a prime example of Abbott-era unilateralism and the kind of machismo that Prime Minister Turnbull has committed to end.

Washing our hands of responsibility for Australian citizens who are violent extremists is grossly irresponsible in a period of what should be heightened international cooperation to meet the challenges of providing safety to our people in an often dangerous world. This legislation will erode rights, principles of law and natural justice that have existed for centuries. It has the potential to disrupt the lives of literally millions of dual nationals who risk losing their citizenship at a stroke of the minister's pen. It has been rightfully condemned by the Law Council of Australia, Australian Lawyers for Human Rights, the Federation of Ethnic Community Councils of Australia, Civil Liberties Australia, the Centre for Comparative Constitutional Studies and many other organisations and eminent legal minds.

This is an extreme and radical piece of legislation that does not contain necessary safeguards. It establishes a two-tiered citizenship system in which the consequences of the crimes or actions of a dual national are different from those faced by a sole Australian citizen who commits or carries out the same crimes or actions. This flies directly in the face of the long-cherished concept in this country that every Australian should be treated equally under the law.

Professor George Williams from the University of New South Wales wrote about this legislation in the wake of the recent Paris attacks and after confirmation that the government would accept the amendments moved by the Joint Committee on Intelligence and Security. He said:

We run the risk of taking action that undermines the very freedoms we are seeking to preserve from terrorism. In doing so, we may hand those who would harm us and our freedoms an undeserved victory.

He continued:

The re-drafted bill extends to people who commit a terrorist act or support terrorism, such as through financing, training or recruitment. It applies to these people without discriminating between a terrorist and a freedom fighter. This means—

Professor Williams continued:

… that citizenship could be revoked from dual nationals who support something like Nelson Mandela's fight against apartheid in South Africa, or the independence movement in East Timor.

He also said:

… the law will also apply to people who have been convicted of nothing more than entering an area declared by the government to be a no-go zone. The person may not have harmed anyone, and indeed may have entered the area against the wishes of the government merely to visit friends or to conduct business.

The Greens share the concerns outlined by Professor Williams.

Labor's promise to scrutinise this bill belies the fact that, as they so often are, they are in lock-step with the federal government on this issue, I might add, as they are on many other important issues in this country because they are desperately afraid of being painted as weak on national security. Labor's claim that they would scrutinise this bill disintegrated on Monday, when the so-called opposition waived through amendments after doing a backroom deal with the immigration minister rather than properly scrutinising the bill in the House of Representatives. The Greens will not succumb to the cheap fearmongering and lack of transparency of the old parties.

Certainly, the threat of violent extremism is very real, and governments and parliaments have an obligation to ensure that our laws protect our citizens to the highest possible degree. But while we are constantly being told that we need to trade away our hard-won civil rights and freedoms in order to increase our security, the unfortunate truth is that there is often little or no evidence that we are being made any safer despite losing rights that so many Australians have given their lives, in our country's history, to defend.

Since the most recent counter-terrorism white paper was handed down in February 2010, our legislative responses to the threat of violent extremism have become increasingly reactionary, ad hoc and politicised. Too little attention has been paid to the long-term strategic direction of our internal security and even less to the steady erosion of the freedoms so many of us cherish as Australians. New laws, which inevitably erode civil rights, have often been drafted in the aftermath of a one-off incident or a foiled plot and sold to the Australian people as necessary to deal with the latest emergency.

The net result is broader, sweeping powers for Australia's security, intelligence and police agencies but very little in the way of effective oversight, analysis of what works or fine-tuning. At the same time as counter-terrorism bodies are awash with new money, the office of the Independent National Security Legislation Monitor is running on a shoestring budget and is still analysing and reviewing laws that have already come into force.

Since 2002, Australians have faced an ever-changing landscape of laws that we have been told are designed to protect us against terrorism. In that time, many dozens of legislative changes have been made in the name of counter-terrorism and national security and these changes have almost all but whittled away hard-won rights and freedoms in this country. These are unprecedented developments in Australia's peacetime history, and the Greens believe we owe it to our country and we owe it to our people to have a serious rethink.

We need to create better overall law in a more planned and strategic way, where security and safety are properly balanced with the deeply held Australian values of freedom and a fair go. In the same way that we have an established white paper processes for tax, agriculture, defence and Northern Australia policies, a white paper process would allow for the development of our response to violent extremism in a more transparent, evidence-based and strategic way. We could potentially call this a 'blue paper' process.

Just like defence strategy, this area of policy development calls for strategic thinking and planning rather than knee-jerk reactive law-mongering. Such a process would, of course, involve the input of our security agencies but it would also give experts from a number of other fields the chance to have a meaningful say. The 'blue paper' process could include an examination of the effectiveness of the dozens of legislative and administrative changes made since 2002. It could analyse what has worked and what has not, both in Australia and internationally. The first 'blue paper' could also examine the most effective strategies to prevent radicalisation in young people and put social cohesion front and centre in our response to this challenge. There should be an opportunity for public feedback to give Australians a meaningful opportunity to own the outcome. History shows that individual freedoms are very difficult to win back once they are lost. The Greens believe better planning of the difficult balance between safety and security on one hand and freedom and rights on the other would be much better served by a formal 'blue paper' process.

On 24 November 2015, the new Prime Minister Turnbull said the following about Australia's reaction to terrorism:

Our response must be as clear eyed and strategic as it is determined.

This is not a time for gestures or machismo.

Calm, clinical, professional, effective.

That's how we defeat this menace.

The threat from ISIL is a global problem that must be addressed at its source, in the Middle East

He also said about ISIL:

By most measures, however, ISIL is in a fundamentally weak position.

We must not be fooled by its hype. Its ideology is archaic, but its use of the Internet is very modern.

ISIL has many more smartphones than guns, more twitter accounts than fighters.

Compare that very sensible, very restrained language to the minister's second reading speech on this legislation:

We face a heightened and complex security environment. Regrettably, some of the most pressing threats to the security of the nation and the safety of the Australian community come from citizens engaged in terrorism. It is now appropriate to modernise provisions concerning loss of citizenship to respond to current terrorist threats. The world has changed, so our laws should change accordingly.

The Prime Minister's statement on national security is contradicted by the extreme measures contained in this bill. It is not 'calm' to drastically change our citizenship provisions based on a terrorist group which the PM himself says is in a 'fundamentally weak position'. It is not 'clinical' to create a two-tiered citizenship system, where the consequences of the crimes of a dual national are considered differently from those of a sole Australian citizen. It is not 'professional' to make punitive decisions outside of the courts and to apply such punishments retrospectively. But most of all there is no evidence whatsoever that any of these changes will be effective in their stated aim of making Australia and Australians safer.

The legislation has, thankfully, been heavily amended since it was first presented to this parliament. While the amendments make this law less bad, and most of them are welcomed by the Greens, the legislation is actually irredeemable. We welcome the fact that the amendments will improve notification requirements, narrow the range of prescribed offences and raise the age of children to which it could apply. But they do not go nearly far enough to address the massive flaws in this bill. It is clear that the Parliamentary Joint Committee on Intelligence and Security, which examined this bill and recommended that it be passed by this parliament, has ignored expert evidence and shirked its responsibilities, despite the amendments that it recommended.

One amendment which the Greens have concerns about is the amendment that will allow for the stripping of someone's citizenship for offences committed up to 10 years ago. This amounts to double punishment. Once someone has served their time for a crime, the government should not be able to come back and apply a secondary punishment. To do that is a breach of one of the fundamental principles of our legal system and could well prove to be unconstitutional. This bill relies on the legal fiction of automatic renunciation which will be based on intelligence and unable to be tested in court until after someone has lost their citizenship.

This week in the other place we saw Labor once again cave in to the government and support further amendment to this bill, purportedly made to improve its chances of surviving a High Court challenge, despite Labor admitting it had not seen the Solicitor-General's advice upon which that amendment was made. That was perhaps the final chapter in a process which has been utterly shambolic right from the very start. This legislation was first floated by extremist right-wing backbenchers from the coalition parties. It was debated in cabinet; it was unceremoniously leaked from cabinet. It was introduced in the other place with apparent typographical errors and inconsistencies. It was heavily amended by the closed-shop Parliamentary Joint Committee on Intelligence and Security, on which neither the Greens nor the crossbenchers are represented. It was still found to be inadequate as recently as last week by the Solicitor-General. Despite all the above issues, it was waved through the Reps in the final week of parliament, with no scrutiny at all by the Labor Party.

The final point I want to make is this. If we are serious about tackling radicalisation and violent extremism, we have to address its causes. Building a cohesive, tolerant and inclusive community in Australia should be the government's top priority to protect Australia's much-loved multiculturalism and set the preconditions in Australia that minimise radicalisation. Any time the government are out telling the Australian people that they need to strip away more freedoms and engage in punitive actions and that this can make Australia safer—despite the fact that there is zero evidence that this legislation or laws like it will make Australia any safer—they are not focusing where their focus should be, which is on building a cohesive, tolerant and inclusive community in our country. Time will prevent me from speaking longer on that issue at this time, but that is where the government's focus should lie, rather than on pressing on with Tony Abbott-era legislation which unwinds yet more of the rights that so many Australians have fought, and at times died, to defend.

6:42 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. Labor has consistently supported updating the Australian Citizenship Act to provide for the loss of citizenship for dual citizens fighting with terrorist organisations such as Daesh. Labor has worked with the coalition on this bill in a bipartisan manner to seek to ensure that it has no unintended consequences. Labor recognises that citizenship is one of our most fundamental rights. Labor will not support any legislation that clearly would seek to erode the fundamental importance of citizenship in our nation or undermine the status of our country's many dual nationals.

This bill has been examined by the Parliamentary Joint Committee on Intelligence and Security, and what we now have is an amended bill that has been heavily scrutinised and revised. It is a much different bill than the one that was introduced. The parliamentary joint committee has certainly done its work. It made substantive recommendations to ensure that the bill had the proper outcome. Make no mistake, though; this is not a blank cheque that Labor is offering the coalition. On the issue of national security, Labor and Mr Bill Shorten have worked constructively with the government. There is nothing more important than keeping the Australian people safe, and this issue must be kept above politics.

The Australian Citizenship Act has always contained a provision for the automatic loss of citizenship for any dual citizen taking up arms against Australia. This provision is based on a very old traditional concept of serving in the military of another country. In addition to this, the Minister for Immigration and Border Protection has the discretion to cancel a dual national's Australian citizenship where they are convicted of fraud relating to their application for citizenship or of a serious offence which was committed before the person became a citizen.

This coalition bill in its original form sought to amend the Citizenship Act to provide for three new ways a dual citizen may automatically lose their Australian citizenship. The first is renunciation by conduct where a person engages in conduct inconsistent with their allegiance to Australia, specifically conduct relating to terrorism and foreign incursions. The second is renunciation due to fighting for, or being in the service of, a declared terrorist organisation outside Australia. The Minister for Immigration and Border Protection will make a declaration of terrorist organisations on the advice of security agencies based on which of these organisations would have a direct threat or issue affecting allegiance to Australia. The third is renunciation due to a conviction for a terrorism related offence.

The Citizenship Act currently provides for loss of a dual national's citizenship only in very limited circumstances. Labor believes that a carefully considered expansion of these circumstances is required to protect Australia's national interest. It is evident that there is a need to introduce additional measures to adapt to new and emerging security threats. A key concern for governments is the threat that home-grown foreign fighters pose to domestic security upon return to Australia. This bill seeks to address the challenges posed by dual citizens who participate in terrorism related activities and who represent a serious threat to Australia and our national interest.

The Parliamentary Joint Committee on Intelligence and Security handed down its report on this bill on 4 September. Labor supports the recommendations of the committee as they have substantially improved the bill put forward by the government. The government has ceded to the recommendations of the committee and, as a result of the 27 recommendations, Labor will support the amended bill, which creates two scenarios under which a dual citizen may lose their Australian citizenship. The first is if they are convicted of a terrorism offence in Australia. The second is if they are currently overseas engaging in terrorist activities or collaborating with a declared terrorist organisation, like Daesh. The recommendations of the committee significantly narrow the set of circumstances under which a dual citizen may lose their citizenship and represent a far more targeted approach than that which was originally proposed by the government. It is there to ensure the fair and proper treatment of our citizens.

Renunciation of citizenship by conduct may occur only if a person is: engaging in international terrorist activities using explosive or lethal devices; engaging in a terrorist act; providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act; directing the activities of a terrorist organisation; recruiting for a terrorist organisation; financing terrorism; financing a terrorist; or engaging in foreign incursions and recruitment. The committee's recommendations ensure the bill represents an appropriate updating of the existing legislation.

The original provision in relation to 'conduct inconsistent with allegiance to Australia' will now apply only to dual citizens who have engaged in the conduct offshore or who engaged in the conduct onshore and are now located offshore. This amended provision seeks to ensure that our national security agencies have the means to prevent those who have been involved in terrorism-related conduct from returning to Australia. Further, the minister will be required to consider a set of criteria before declaring a terrorist organisation for the purposes of the act. The declaration of the organisations will be a disallowable instrument, so the Greens will be able to have their say on this issue as a disallowable instrument.

All of the provisions contained in the bill will apply only in the event that the minister receives an adverse security assessment in relation to the dual citizen. The bill will require the minister to provide, or make reasonable attempts to provide, the dual citizen with notice of the revocation unless the notification would compromise ongoing operations or national security. The citizenship of other family members of a person who has had their citizenship revoked will not be affected.

The bill includes several appropriate safeguards to ensure transparency and to give citizens avenues for redress. Due to the recommendations of the PJCIS, the bill will have limited retrospectivity. Dual citizens who have been convicted of a serious terrorism offence within the past 10 years, and who were sentenced by a judge to a minimum of 10 years in prison for that offence, may have their citizenship revoked under this bill. Revocation of citizenship in these limited circumstances will be subject to the minister's discretion, having regard to a number of criteria including current security threats. A person will have the right to appeal the loss or revocation of their citizenship to the Federal Court. This is an important safeguard that Labor believes is a fundamental right of our citizens. Further, the government will be required to publicly report, every six months, on the number of times the changes have been applied and to provide a brief statement on the reasons why they have been applied. No-one in Australia will lose their citizenship simply because of untested suspicions or concerns regarding their conduct.

There is no denying the significant concerns expressed in relation to this bill. One particular concern expressed by legal experts goes to the constitutionality of certain aspects of the bill. Despite repeated requests by Labor and PJCIS members, the government refused to release the Solicitor-General's advice and has, I think, failed to adequately address these concerns. Instead, Senator Brandis, the Attorney-General, wrote to the PJCIS giving a very qualified assurance of constitutionality. In this instance, the Senate deserves greater accountability from the Attorney-General. However, it is not only the Attorney-General dragging his feet. In its 11th report of 2015, the Scrutiny of Bills Committee reported that the committee is still waiting for a response from the Minister for Immigration and Border Protection—requested for response by 27 August this year. Those opposite might want to provide that response. Three and a half months have passed, and the bill is now before this chamber, and the government has not bothered to address the committee's concerns that go directly to matters of fairness for Australian dual citizens. The government should answer why it has not responded to the report of the Scrutiny of Bills Committee and why it is withholding that information. The government should be mindful that, if these laws are tested in court, it will be a matter for them to defend and explain.

This legislation does not represent a significant change to the principles underpinning our country's citizenship laws. It simply seeks to update existing law to bring it up to speed with addressing an emerging threat to our national security. The law has not been updated since it was first written in 1948. The government must act to take into account non-state groups, like Daesh. While this bill may not sit well with all members of the Australian public, including the Greens, we must support these measures in order to take up the fight against terrorism.

I wish to acknowledge the considerable work of the PJCIS in examining this legislation. Without the work of the committee I think this Senate would be faced with a much poorer bill—a bill that would trouble many Labor senators a lot more than the amended bill does, with the assurances of the committee, with the work that the committee has done and, ultimately, with the government acquiescing to the amendments put forward by the committee itself.

In closing I would like to add a couple of the Q&As that come up that others will use in this place as a means to raise concerns. These are some of the myths that get thrown up in these debates. These laws do not risk making people stateless. They will only apply to someone who is a dual citizen. People always ask why we need to pass these laws, and I think I have explained that cogently. We have also passed a foreign fighters bill. These laws offer an important update of the law to reflect that those people who wish to harm Australia no longer wear an easily distinguishable uniform of another country. It remains illegal under Australian law for any person in Australia or any Australian citizen, including dual citizens, to provide any kind of support to any kind of armed group in Syria or Iraq today.

The issue of retrospectivity always concerns me in this place. It is limited. It has been circumscribed. The government has recognised that retrospectivity with a bill like this should be used very carefully. Those dual citizens who have been convicted of a serious terrorism offence within the past 10 years and who were sentenced by a judge to a minimum of 10 years in prison for that offence may have their citizenship revoked under the new laws. Under changes recommend by the intelligence committee, revocation of citizenship in these limited circumstances will be subject to the minister's discretion having regard to a number of criteria, including current security threats. It is always difficult for reliable intelligence to be gathered in this area for agencies to operate on. But, of course, we have some of the finest agencies in the world—consisting of ASIS, ASIO and the AFP. The minister will rely, I am advised, on the advice of those security agencies. In conclusion, I commend the bill to the Senate.

6:57 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I have some serious reservations about this bill, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, but I want to make it absolutely clear that the state's most fundamental duty is to protect its people, that terrorist acts are abhorrent and that this is a real and present danger that we must deal with and grapple. My question is: what is the best way to grapple with this?

Let's look at the issue of citizenship revocation. There is no absolute prohibition against citizenship revocation. The state's most fundamental duty is to protect its people. If the best defence is to revoke the citizenship of people who would see Australia destroyed, the Australian government should be able to do so. But I ask the following questions. Is it the best possible deterrence? Is it the best defence to protect Australian citizens? What is the evidence that citizenship revocation will be a greater deterrent to a potential terrorist than the prospect of a criminal conviction and lengthy imprisonment or, say, that person being killed or executed in their foreign theatre of war or conflict?

Will citizenship revocation deter a potential terrorist? That is a question that we must ask. Would Jihadists care about losing citizenship status of a Western democracy that they detest? Of course, deterrence ought not to be the care argument. Deterrence may be an important reason to revoke citizenship but it is by no means the only reason to do so. We may revoke citizenship of offenders because they commit crimes and not only because the punishment would deter others. Offenders need to be dealt with appropriate due process. That is the hallmark of a civilised nation. That is a hallmark of the rule of law. More conventional protected measures should be used first. If more conventional measures are effective, we should use them.

There are arguments for citizenship revocation, and they may be grouped into three categories: protective, punitive and allegiance. The protective rationale holds that terrorists should not be allowed to make tactical use of their citizenship. If terrorists are using their Australian citizenship for unlimited entry and residence and unencumbered international travel, then restricting their freedom to move is a good idea. Of course, this can also be done by cancelling their passports without revoking their citizenship, so I wonder whether there are other mechanisms to prevent the unencumbered travel of an Australian citizen who is involved in terrorists acts. The cancellation of their passport would have the same effect without revoking their citizenship.

Let us not forget that terrible terrorist attack in Ottawa in 2014 where a would-be jihadist, who had been grounded by the Canadian government, is said to have killed an innocent guardsman in his rage about his passport cancellation. I think that is something that needs to be borne in mind. The punitive rationale holds that Australian citizenship is one of the great privileges of the modern era. I agree with former Prime Minister Abbott, who said, 'To be an Australian is to win the lottery of life.' But if you behave in a certain way then your punishment is banishment—political death in a sense.

Here we should note that if citizenship revocation is based on executive order rather than court judgement then it is seriously flawed because only the judiciary can mete out punishment. The Joint Committee on Intelligence and Security's work has been useful in clarifying that. I think there were serious issues in the potential legality of this bill in its earlier form because there was a real issue that it may not have survived a High Court challenge. In its current form, dealing with revocation by conviction or renunciation by conduct, it is much safer legally and would more likely withstand a High Court challenge so that is welcome.

I want to make the point that the current oversight we have of our intelligence services and of security matters is woefully inadequate. We have the joint standing committee but that is a club for the major parties. The exception to that in recent years was when Andrew Wilkie MP, the member for Denison, was, unusually, a crossbench representative on that committee when there was a balance of power situation in the House of Representatives. That was the exception rather than the rule. I wonder what would be wrong with having members of the crossbench and a member of the Australian Greens being able to attend as participating members of the joint standing committee, because currently the degree of oversight is inadequate if you compare it with the United States, with Germany and with the United Kingdom. There is a much greater degree of oversight in those places, including judicial oversight with respect to the United States. They have a court that effectively does not have public hearings but is a court that does provide oversight of intelligence services and security operations. We simply do not have that level of oversight here in Australia.

The other argument is that citizenship revocation may be seen as a relatively weak punishment compared to certain heinous crimes and, therefore, cannot be justified as retribution because it is not proportionate to the monstrosity of the crime. Furthermore, it removes the revokee from the jurisdiction and, therefore, does not allow an opportunity for that person to be brought to justice here in Australia.

I forecast that I will be moving a second reading amendment. I am not sure it has been tabled yet but it is something that I can raise in the committee stages of this bill. It is unambiguously my view that, before the cancellation of a citizenship is considered, by revocation or by renunciation, the government ought to consider the risk posed to Australian citizens overseas or indeed to other innocent citizens who live overseas. If we revoke citizenship with this bill, will it mean those Australians that live overseas will be less safe? Will it mean that innocents abroad will have to deal with a terrorist who will spend the rest of their miserable twisted lives working out how they can kill Australians or other innocents abroad when there may have been an option to bring that person back to this country to face trial and face a very length jail term? I have no difficulty in throwing away the key for those individuals who are engaged in terrorist acts and who are a threat to the community. My concern is: are we taking the easy way out by simply revoking their citizenship and allowing them to free-range in the rest of the world with their murderous intent? And that murderous intent may include targeting Australian citizens who are either holidaying or living overseas.

I think that there is an interesting contrast with the foreign fighters bill. My understanding is that the government said that we should not let people go overseas to be involved in terrorist acts and we should keep them here. We should prevent them from leaving the country. But this bill is saying that if you are overseas, we do not want you back in the country. There seems to be an uneasy dichotomy there between the two. I cannot reconcile that inconsistency between the two. To me, the priority must absolutely be the safety of Australians either here or abroad and other innocents abroad. If we have a person with evil, murderous terrorist intent and if we can in any way drag them back to Australia and lock them up for a very length period and throw away the key if need be, I would have thought that would make it safer rather than these people free-rangeing. I move:

At the end of the motion, add:

", but the Senate calls on the Government to investigate the option of having dual nationals arrested and incarcerated in Australia, before the revocation or renunciation of their Australian citizenship, and consider the risk those persons might pose to Australians and other innocent people outside of Australia."

This amendment encapsulates the concerns in relation to this. I think it is important that we have that debate.

If I can go to the allegiance rationale in terms of the whole issue of revocation, this refers to what former Canadian immigration minister Chris Alexander referred to as 'loyalty and allegiance' when he introduced the 2014 Strengthening Canadian Citizenship Act in this Canadian parliament. That act allows for the stripping of citizenship in the case of treason, spying, taking up arms against Canadian forces and terrorism, even if the latter is committed outside Canada and sentenced by foreign courts, should the action in question constitute a terrorism offence also under Canadian law. My understanding is that that part of it, being sentenced by a foreign court, does not apply here and that can be clarified in the committee stages.

The 'foreign court' bit in the Canadian legislation should give us all pause. If we rely for citizenship revocation on a conviction for terrorist offences in another country, then what if the conviction has been obtained after an unfair trial, with torture and the like? I think that stripping terrorist subjects of their citizenship is a strongly visible policy and for that reason possibly also a strongly symbolic one. I can understand why the government has gone down this path. It is precisely the symbolic nature of the revocation that justifies the application of this measure on one argument—that citizenship revocation strengthens citizenship by reaffirming the conditions on which it is based. But what if the target is not Australia?

A person who wants to destroy the state that guarantees his or her citizenship can hardly complain when that state in self-defence revokes the citizenship. I get that, but in such circumstances, Australia is merely returning the favour. But what if the individual is not trying to destroy Australia but is trying to defend 'his or her people' overseas? We have seen that previously when Australians went overseas to be involved in foreign conflicts because of their familial links to those countries and to those conflicts. What if the individual is not trying to destroy Australia but is trying to provide material assistance to, say, the Kurds who are fighting against ISIS? What happens when they are on the side of what we are trying to do—that is, to defeat that organisation, ISIS, and the terrorist acts that they perpetrate? What if the individual is not trying to destroy Australia but is conscripted to a foreign military that is not at war with Australia?

There are arguments against revoking citizenship. Revocation may create a 'race to expulsion'. Consider a dual citizen of Australia and some other state—let us call it country B. Both Australia and country B may wish to lawfully revoke a person's citizenship, but if both states can do so only to dual nationals, then it becomes a race between Australia and country B to revoke the citizenship first—the early bird loses the worm. What is the evidence that citizenship revocation will be a greater deterrent to a potential terrorist than the prospect of a criminal conviction and lengthy imprisonment—and I am talking about throwing away the key? If these people have that murderous intent, if they are terrorists, then would the world be safer if they are locked away in a maximum security prison for the end of their days or until they are old and feeble and pose no risk to anyone? I see issues in relation to that.

I think there is a slippery slope here, that expulsion and exclusion against noncitizens can provide a conceptual matrix that facilitates similar practices against citizens in terms of civil liberties. As Thomas Jefferson warned in1798, 'The friendless alien has indeed been selected as the safest subject of a first experiment, but the citizen will soon follow.' If we want to tackle terrorism, certainly we need to act against those who have committed terrorist acts in the toughest possible manner. I worry that this will not necessarily make Australia safer. I see that Minister Fierravanti-Wells is in the chamber. I think the work she has been doing, engaging with communities involved in counter-radicalisation programs, is incredibly valuable. That is something which must be done in parallel and without reservation. At the risk of damaging Senator Fierravanti-Wells preselection chances, I think she is doing terrific work and I am very pleased that she is in that position.

There is a question as to whether the revocation measures are empty gestures? Is it not better to be involved in counterterrorism actions such as international investigations, arrests, convictions and imprisonment? Do we just give up, revoke their citizenship and then let them free range with their sick, twisted minds, to do damage to Australians and to other innocents abroad? That is a great fear I have. In terms of the court process, I think that is a welcome change in the approach of the government. It makes a challenge much more difficult, if not High Court proof. I am concerned that, if we go down this path, Australians may not be safer.

To look at revocation elsewhere, after the London terrorist attacks in July 2005, the Blair government amended the UK law in 2006. Previously the Home Secretary had to be satisfied that an individual had engaged in actions that threatened the 'vital interests of the UK'; now he or she had only to be satisfied that taking away someone's citizenship was 'conducive to the public good'. In the first year of the Conservative/Liberal Democrat coalition government —remember them in 2010-11?—no fewer than six people were stripped of their citizenship. This was more people than the Blair and Brown governments had denaturalised in the previous nine years. The revocations were almost always done in secret and later revealed by investigative journalists. In the next three years to May 2014, the UK government had revoked 23 people's citizenship on 'not conducive' grounds. In January 2015 the UK government presented a bill to parliament requesting the power to strip citizenship from naturalised citizens even if they would be made stateless. The amendment passed, albeit in a modified form: a naturalised citizen can be made stateless if the Home Secretary deems there are reasonable grounds for believing they have access to another citizenship. At least two former UK citizens were executed by US drone strikes after the Home Secretary deprived them of their citizenship and my understanding is that they were terrorist suspects who had engaged in acts of terrorism, and another was rendered to the United States for trial on terrorism charges.

Citizenship revocation does not operate in the United States, despite all the other measures it has embraced—they include rendition, drones and a range of other measures. The United States is unlikely to implement the policy because the United States Constitution has vigorous safeguards of individual citizenship due to that country's history of race-based slavery and its aftermath.

So what grounds should apply to citizenship revocation? They must be limited to only the most extreme, unmitigated attacks on the nation's security—attacks that are consistent only with a desire to bring the nation to ruin or to harm its citizens, or to be planning to do so. I think the conduct must be scrupulously defined, and I note there has been a comprehensive definition in this bill. So I understand the arguments for revocation, for renunciation of citizenship, to strip people of their Australian citizenship in exceptional circumstances. I get that. But what I am very deeply concerned about is that this bill will not make Australians safer. It would be better, wherever possible, to ensure that those who have murderous intent towards Australia with terrorist acts are dragged back to this country to face trial and a lengthy period of imprisonment, not to allow them to wander free-range with their sick, twisted minds, with murderous intent to Australians living overseas and, indeed, to any other innocents. This is my fundamental dilemma, and that is why I have very serious reservations in respect of this bill.

7:16 pm

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party, Assistant Minister for Multicultural Affairs) Share this | | Hansard source

I rise to speak on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, and I thank Senator Xenophon for his kind comments. I also thank him for his support of ongoing efforts, particularly in relation to dialogue with our communities at risk. As I have often said publicly, our national security efforts are very, very important, but we must also look at the importance of the other end of the spectrum—at how strong social cohesion is so vitally important to good settlement, to good harmony and to good integration into our Australian society.

This evening I rise to speak not in my ministerial capacity, although all three areas of responsibility that I have—in the Attorney-General's Department, in the Department of Immigration and Border Protection and also in the social services issues pertinent to citizenship—do touch on this. I particularly wanted to make some comments this evening because, as senators would know, earlier this year Philip Ruddock and I led a national consultation process on Australian citizenship. As part of that process we proactively went out and wrote to about 1,500 organisations. We also put out a discussion paper entitled 'Your right, your responsibility', which included a whole series of questions on a whole range of pertinent issues. These questions focused on the broad spectrum of citizenship—about valuing citizenship, about rights, about responsibilities, about the pledge, about many different aspects of citizenship. We invited the Australian public to provide us with commentary, and many, many did so—some went online, some sent us written submissions, and Philip and I also had a series of face-to-face consultations around Australia.

The process was a very good one, and it prompted a response from so many different people on a wide range of different issues. One of the key themes which emerged—and I have spoken about this publicly, of course—was the importance of English as our national language and also the language of integration. The other key issue that emerged throughout the consultation process was the importance of valuing citizenship; indeed, it was one of the key responses in just about all the documentation that was forwarded to us. We need to value citizenship, and these were some of the suggestions that were made—the need to value citizenship through greater focus on civic training and understanding what citizenship means and what the values and benefits are, and also what the rights and responsibilities are, irrespective of whether you are an Australian by birth or an Australian by acquisition. This was one of the points that were stressed to us repeatedly—the importance of being an Australian not just by birth but by acquisition. People raised with us that citizenship is like a contract between you and the state. If one is in a contractual relationship with another person, that contractual relationship has both rights and responsibilities. So what happens then when you breach that contract? Clearly there are repercussions for that breach.

Our discussion paper also contained a section on revocation of citizenship for dual citizens engaged in terrorism and the suspension of privileges for Australian citizens engaged in terrorism. On these two points we had a lot of feedback. There was a strong sense that, if you commit an act of terrorism, you have to pay a price for that. Various submissions canvassed the possibilities of suspension, withdrawal and those sorts of things and, of course, the legalities that go with potential suspension or withdrawal.

Why the need for additional changes? According to the Review of Australia's Counter-Terrorism Machinery, the terrorism threat in Australia is rising. We know that the number of Australians joining overseas extremist groups is increasing and that the number of known sympathisers and supporters of extremists is also increasing. The number of potential terrorists is also rising. Our security agencies at the moment are managing over 400 high-priority counter-terrorism investigations, and we know that this figure has more than doubled since early 2014. Since September 2014, when the national terrorism public alert level was raised to high, 26 people have been charged as a result of 10 counter-terrorism operations. We currently have about 110 Australians fighting or engaged with terrorist groups in Syria and Iraq, and about 190 people in Australia are providing support to individuals and groups in the Syria/Iraq conflict through financing and recruitment, or are seeking to travel overseas.

Earlier this year, the Australian government announced that we would develop amendments to the Australian Citizenship Act 2007 to provide for the loss of Australian citizenship in the case of dual nationals engaged in terrorism related conduct. Supporting and engaging in terrorist activities against Australia's interests is a breach of a person's commitment and allegiance to our country—a bond that should unite all citizens. Citizenship should be respected and not taken for granted. This was the clear message from the national consultations that I raised earlier.

This bill states:

… the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.

Since the commencement of the Nationality and Citizenship Act in 1949 there have been provisions for the automatic loss of citizenship in cases where a dual citizen serves in the armed forces of a country at war with Australia. It is important that our laws are updated to reflect current threats to our country and our values through terrorism related activities.

A person's citizenship can also be revoked on the basis of a conviction for immigration or citizenship fraud, or for a serious offence with a sentence of 12 months or more committed prior to the granting of citizenship. I note that 16 people have lost their citizenship since 1949 on this basis.

This bill amends the Australian Citizenship Act 2007 in a number of different ways. The bill inserts a purpose clause setting out the fundamental principles upon which the amendments are based. The bill outlines circumstances in which a dual citizen ceases to be an Australian citizen through their engagement in terrorism related activities and where the minister may exempt a person from the operation of the bill. The bill also provides for reporting on and monitoring of the operation of the arrangements in the bill and the protection of sensitive or prejudicial information in relation to that reporting and monitoring.

The bill applies to a person who is a dual national regardless of how the person became an Australian citizen, whether by acquisition or birth. Again, in our consultations there was a strong sense that, if people are engaged in terrorist related activities, there needs to be a sanction for that breach of contract of their citizenship obligations, that sentiment being one that should apply to an Australian citizen whether by acquisition or by birth.

This bill was referred to the Parliamentary Joint Committee for Intelligence and Security for inquiry. The joint committee reported on 4 September, making 27 recommendations for amendment to the bill and the explanatory memorandum. The government has accepted these recommendations. The government also proposed amendments to the bill and the explanatory memorandum in response to the recommendations of the committee and on the basis of legal advice, including from the Solicitor-General, regarding the implementation of these recommendations.

I will touch on a number of the elements and specifics in this bill. The first element is renunciation by conduct. Section 33AA provides that a person aged 14 or older who is a national or citizen of a country other than Australia renounces their Australian citizenship if they act inconsistently with their allegiance to Australia by engaging in specified conduct. That specified conduct ranges over different activities such as engaging in international terrorist activities using explosive or lethal devices; engaging in a terrorist act; providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act; directing the activities of a terrorist organisation; recruiting for a terrorist organisation; financing terrorism; financing a terrorist; and engaging in foreign incursions and recruitment. The government amendments provide that the conduct provisions are limited to individuals who have engaged in this relevant conduct offshore or engaged in this relevant conduct onshore and left Australia before being charged and brought to trial in respect of that conduct.

The amended bill also provides that the conduct provisions only apply if the conduct is engaged in with the intention of advancing a political, religious or ideological cause and coercing or influencing an arm of the Australian government or a government of a foreign country or intimidating the public.

I now turn to the second element: fights for, or in the service of, a declared terrorist organisation. Since the law came into force in 1949, it has provided for the automatic loss of citizenship where a person serves in the armed forces of a country at war with Australia

This bill expands the section to provide for automatic cessation of citizenship if a person aged 14 or older who is also a citizen of another country is overseas and fights for, or is in the service of, a declared terrorist organisation. A declared terrorist organisation will be a subset of those which are listed for the purposes of terrorism offences under the Criminal Code.

As amended, the bill provides that the minister, by legislative instrument, may declare a terrorist organisation where that organisation is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act or advocates the doing of a terrorist act, and is opposed to Australia or to Australia's interests, values, democratic beliefs, rights or liberties, so that if a person were to fight for or to be in the service of such an organisation the person would be acting inconsistently with their allegiance to Australia. The provisions in relation to being 'in the service of' a declared terrorist organisation do not apply to a person's actions that are unintentional or performed under duress or for the purposes of providing independent humanitarian assistance. A declaration by the minister of a declared terrorist organisation is reviewable by the Parliamentary Joint Committee on Intelligence and Security.

A third element is conviction for terrorism and related offences. A new section 35A of the bill provides a discretionary power where the minister may determine that a person's citizenship has been lost once they have been convicted of a relevant offence and upon consideration of relevant criteria. So loss of citizenship is not automatic upon the conviction. Following the recommendations of the parliamentary joint committee, the list of offences is limited to terrorism related offences with a maximum penalty of 10 years or more. Also, offences of incursions into foreign states with the intention of engaging in hostile activities have been included through the amendments. Of course, this replicates provisions under the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 and is important in ensuring that the bill is as effective as possible, given the activities of terrorists overseas.

To be affected by this section, a person must be sentenced to at least six years' imprisonment or to periods of imprisonment that total at least six years, and this provision relies on a court having determined criminal guilt. The relevant offences include convictions for treason, espionage, terrorism, international terrorist activities using explosive or lethal devices, treachery, sabotage and foreign incursions and recruitment.

The person ceases to be an Australian citizen at the time the determination is made by the minister. Of course, in making that determination the minister must be satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia, or that other factors lead to the minister determining that it is not in the public interest for the person to remain an Australian citizen. The minister must revoke a determination if a conviction is overturned, the decision to overturn is upheld on appeal and no further appeal can be made to a court in relation to the decision. Law enforcement and intelligence agencies will provide information relating to conduct or conviction to the minister.

The bill provides for a process whereby notice must be given to the person as soon as practicable, except where the minister is satisfied that giving the notice could prejudice security, defence, international relations or law enforcement operations. This notice must include a basic description of the conduct and, of course, the person's rights of review.

The bill provides that the minister may, at any time after a person has ceased to be a citizen under conduct based provisions, consider whether to make a determination to rescind the notice and exempt the person from the effect of the section. Natural justice will apply in instances where the minister decides to consider exercising his or her power in relation to the making of a determination to rescind that notice or not. The rules of natural justice include the hearing rule and the bias rule. In considering whether to make a determination the minister must have regard to a range of factors, including, but not limited to, the severity and likelihood of prosecution of the matters, the degree of threat posed, the age of the person and other matters of public interest.

No part of the amended bill will apply to a child aged less than 10 years. The conduct based provisions of the bill will not apply to conduct by a child under 14 years of age. The question of whether a child knows that his or her conduct is wrong is one of fact, and the burden of proving this will be on the prosecution. In relation to any child who has been convicted of a relevant offence, a court will have already considered and confirmed that they were criminally responsible for their conduct.

The measures apply only to dual nationals, meeting Australia's international obligations not to render a person stateless. As I have indicated, a person will be able to seek judicial review under the Constitution or under the Judiciary Act, with the Federal Court and High Court having original jurisdiction. There is also provision for reporting to parliament and obligations on the minister in relation to reporting.

I conclude by saying that the new powers in this bill are both a necessary and an appropriate response to the evolution of the threat from global terrorism.

7:36 pm

Photo of Katy GallagherKaty Gallagher (ACT, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. This is a very important and very serious piece of legislation. It is important because citizenship brings with it important rights. It is serious because it allows, in prescribed circumstances, a dual citizen to be stripped of their citizenship.

Last month I attended a citizenship ceremony for about 100 new Canberra citizens. As everyone here would know, you cannot officiate at one of these ceremonies and not be touched by the reverence and importance that the participants and their families place on this ceremony. It is a big step—a big decision—to take out citizenship in a new country and there is a heightened awareness, a gravity and a nervous excitement that envelops the room. Everyone is dressed in their best clothes. Photos are taken, and the smiles are from ear to ear. Our new citizens understand the importance of taking out citizenship. For those of us born to our citizenship, perhaps until very recently we have not given it much thought. It was taken for granted.

At the moment there are four main ways that a person's Australian citizenship can cease. Specifically, it can cease where a person explicitly renounces their citizenship in an application approved by the Minister for Immigration and Border Protection. It can cease where the minister revokes the person's citizenship on the basis of a conviction for an offence relating to fraud in the course of obtaining Australian citizenship or of a conviction for certain offences after applying for but before being granted Australian citizenship. It can cease where the minister revokes the person's citizenship for failure to fulfil residence conditions associated with becoming an Australian citizen. Or it can cease where the person is a national or citizen of another country and serves in the armed forces of a country at war with Australia. This is a self-executing provision—that is, it applies automatically at the time the person's service commences.

The bill before us today certainly came forward in a rush of controversy and heightened media debate. Highly respected academics attacked it. Lawyers delivered searing critiques of its shortcomings. Migrant organisations expressed deep concern. Indeed, across the government, this bill in its original form was hotly contested, and we learnt more about it from media reports than what was finally presented publicly. In its original form it was simply unacceptable, but that was back in June 2015.

Since that time, this bill has been examined by the Parliamentary Joint Committee on Intelligence and Security, of which I am the most recent new member. I well remember reading the various submissions to the inquiry and sitting through the hearings and my rising alarm as I realised the overreach in terms of retrospectivity, the poor drafting or rushed drafting and the unacceptable extent of the coverage of the proposed legislation. The officials who appeared before us during those hearings, whilst not providing us necessarily with all the information we sought, strongly argued for this bill to be passed in order to assist them with the job that they do to counter terrorist threats and keep Australians safe.

The committee provided a unanimous final report, presented on 4 September. It contained 26 detailed recommendations for amendments to the legislation, which have been incorporated into the bill we have today, with a couple of subsequent amendments to that. I would like to state here, as this was the first PJCIS inquiry I sat on, my appreciation for the tireless work and the leadership particularly of my colleague the member for Isaacs, Mark Dreyfus, and also other members of the Parliamentary Joint Committee on Intelligence and Security and the staff of that committee. They put in enormous effort to ensure not only that the committee report actually reached an agreed set of recommendations but also that our side of politics was able, through patience and diligent work, to ensure that we negotiated a set of amendments that significantly improved and narrowed this legislation.

I will now cover some of the main issues about the bill. Certainly some of these have been identified as areas of continuing concern. I think it is important to note, firstly, that currently the act states that a person will have their citizenship revoked if they serve in the military of a nation at war with Australia. It has not been updated since it was first written. From the beginning, Labor said it made sense to update the act to take into account the threat posed by non-state entities such as Daesh and other terrorist organisations.

Our main concern has been to ensure that this update to our citizenship laws does not have any unintended consequences. Our bottom line had been that we simply would not support legislation that eroded the fundamental importance of citizenship in our nation, and equally we would not support legislation that undermined the status of our country's many dual nationals and created two classes of citizens in this country.

In this bill, there are three mechanisms for automatic loss of citizenship: if a person is convicted of a terrorist offence; if a person is overseas, collaborating with a terrorist organisation; or if they have fled overseas having committed a terrorist act in Australia. The new proposed section 33AA is an extension of the current provision which allows a person to renounce their citizenship. This new section provides that a person who is a national or citizen of a country other than Australia automatically forfeits their Australian citizenship by specified conduct such as 'engaging in international terrorist activities using explosive or lethal devices'; 'engaging in a terrorist act'; 'providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act'; 'directing the activities of a terrorist organisation'; 'recruiting for a terrorist organisation'; 'financing terrorism'; and 'engaging in foreign incursions and recruitment'.

The original scope of the bill has now been significantly narrowed by the amendments that were recommended and agreed to by the government, and it now presents a far more targeted approach than what was originally tabled by the government. As senators would be aware, yesterday in the other place further amendments were moved and passed. The Minister for Immigration and Border Protection tabled an additional amendment to a section of the bill which corrected an error made in the earlier form of amendments. The error was specifically in proposed section 33AA(3), which implements the recommendations of the committee that the bill be clear about what level of intent is required for a person to renounce their citizenship by conduct while overseas. In the initial form of the amendments, the bill would have had conduct which would not be considered a terrorist offence under the Criminal Code. Obviously, that would have been inappropriate and not in keeping with the recommendations of the committee. It is important to note that Labor raised this matter with the government, and we are satisfied that the additional amendment deals appropriately with this issue.

A person will have the right to appeal the loss or revocation of their citizenship, and no-one in Australia will lose their citizenship simply because of untested suspicions or concerns regarding their conduct. A person will have the right to appeal any determination by the minister to have their citizenship stripped. This is an important safeguard that Labor believes is a fundamental right of our citizens. I would also note that the Attorney-General, in correspondence dated 27 November 2015 to the member for Corio and the shadow Attorney-General, stated in part:

The basis for the conclusion that the terrorist-related or foreign fighting conduct has occurred may be reviewed by a court …

Any judicial review would extend to whether or not the contract was engaged in, whether the person engaged in that conduct with the requisite intention, and whether or not a person was a dual citizen.

The bill also provides that a person who loses their citizenship for terrorist related activities is not able to become an Australian citizen in the future.

One of the most vexed issues with this bill, and certainly as it was presented and discussed in the committee, is the issue of retrospectivity. I think it is important to note that there is very limited retrospectivity in this legislation. The bill will now provide that section 35A power can only operate for those dual citizens who have been convicted of a serious terrorism offence within the past 10 years and who were sentenced by a judge to a minimum of 10 years in prison for that offence. Revocation of citizenship in these limited circumstances will be subject to the minister's discretion, having regard to a number of criteria including current security threats.

It should also be noted that the Minister for Immigration and Border Protection yesterday also included an additional amendment to this section to change the process by which the minister is to consider exempting a person from the revocation of their citizenship by conduct whilst overseas. Late last week, and after 40 government speakers had spoken on the bill, the government indicated to Labor that the Solicitor-General had advised that the constitutional prospects of the bill would be strengthened if the bill did not oblige the minister to consider exercising but rather permitted him or her to do so. Labor has had to accept the government's assurances of the constitutional implications of the proposed provision and has agreed to support amendments.

The bill requires the minister to give written notice of the automatic cessation of Australian citizenship to persons the minister considers appropriate, as well as rescinding the written notice and exempting a person from automatic stripping of their citizenship if the minister considers it to be in the public interest to do so. It is also important to note that the minister will rely on the advice of the security agencies such as ASIS, ASIO and the AFP on the status of a citizen in relation to them fighting for a terrorist organisation.

I will make just a few comments on the statement of compatibility with human rights which accompanies the bill. The amendments have been assessed as engaging human rights under one or more of the seven core international human rights treaties to which Australia is a party. The statement of compatibility notes that the measures in the amendments engage article 12 of the ICCPR, which provides:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order … public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

The statement advises that the amendments will not of their own force alter a person's liberty of movement and freedom to choose their residence, and those rights may be limited on bases that are provided by law; necessary to protect national security, public order, or the rights and freedoms of others; and otherwise consistent with the ICCPR.

Another important issue addressed by the statement of compatibility with human rights concerns the rights of children. The proposed amendments apply to all dual citizens regardless of their age. The cessation and renunciation provisions would only occur as a result of extremely serious conduct. It should be noted that the minister's ability to exempt a child from the cessation of their Australian citizenship allows consideration of all of the circumstances of the case in determining whether it is in the public interest to do so.

I would now like to turn to what has been a yet-to-be-resolved issue in relation to the bill. Despite repeated requests from Labor and members of the Parliamentary Joint Committee on Intelligence and Security, the government refused to release any of the Solicitor-General's advice on this bill. Senator Brandis wrote to the committee to advise that it is the view of the Solicitor-General that the legislation is constitutionally sound, but we have certainly not sighted that advice. I noted earlier that Senator Brandis has recently provided a letter to Labor which apparently summarises the Solicitor-General's advice. Labor's shadow Attorney-General, Mr Dreyfus, requested the new advice from the Solicitor-General on the additional amendments, but again this request was refused, despite there being precedents in the past, as I understand, for legal advice to be shared in certain circumstances. For those of us like me who strongly believe in open and transparent government, this reticence to table the advice is unacceptable, but, as is the way with these matters, it is up to the government to ensure that its legislation is robust and fit for purpose. Ultimately, if these laws are tested in court it will be for the government to defend them.

As I stated at the outset of my speech, citizenship is an important and serious right, and any legislation which seeks to vary or amend the rights of our citizens is one which needs careful and meticulous attention to detail. Labor supports updating the act to take into account the threat posed by non-state entities. We have worked hard to ensure that this update to our citizenship laws does not have unintended consequences. We have taken the necessary steps to ensure that there is no unacceptable erosion of the importance of citizenship in our country. We certainly remain of the view that the Solicitor-General's advice on the bill should be made public, and we view with regret the Attorney-General's refusal to do so.

In conclusion, we live in very uncertain times, where threats posed by terrorist organisations and individual terrorists are real. Labor has engaged with the government in good faith on measures, legislative or otherwise, to keep Australians safe. And elements of this legislation have certainly been challenging for our party. We have worked diligently through the established processes to improve this bill to narrow its focus and to provide review rights where they are appropriate, and we have certainly had to rely on the assurances from government regarding the constitutionality of this bill.

7:51 pm

Photo of Richard Di NataleRichard Di Natale (Victoria, Australian Greens) Share this | | Hansard source

I rise to speak today on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. I rise to express the Greens' concerns about this bill, which we believe is flawed in many respects but, perhaps even more worryingly, is in fact a very dangerous piece of legislation. We think the bill is of concern for three key reasons. Firstly, it erodes fundamental human rights and principles of law that have existed for centuries. Secondly, it focuses on dealing with the issue of violent extremism once a crime has been committed rather than focusing on prevention. Thirdly, a much more pragmatic but perhaps the most important reason is what, while this bill has as its core objective to keep Australians safe, it is our concern that this bill may in fact potentially endanger the lives of Australians rather than keep them safe.

Let me go to that point. If we force Australians who hold dual citizenship and engage in violent extremism to leave the country and not return to Australia, we believe that we are making the world a less safe place and therefore making Australia less safe. We do believe that, once somebody is guilty of having committed a serious crime, if they are convicted of acts of violent extremism either here or overseas, the best place for them is in custody rather than roaming the world to continue to inflict their violent acts. It is possible that some of these people will return to the theatre of war in Syria and engage in activities there—something that none of us would like to see—but we know that violent extremism does not respect or distinguish between national borders. If there is one tragic lesson from the events of Paris and, indeed, before that in Beirut and subsequently in Bamako, it is that making the world a safer place and protecting people from violent extremism requires a high level of diplomacy and cooperation between nations, but this bill does nothing of the sort.

Our concern is that, effectively, deporting somebody allows them to continue to perpetrate violent acts, whether it be, as I said, in those conflicts, or, as we know from Paris, in other areas where innocent victims are subject to the horrific activities of some of these individuals. One can also imagine that an embittered, hateful individual who has been deported from Australia might seek to organise in a way to deliberately target Australians, and it is for that reason that we do hold grave concerns about whether the passage of this bill potentially further endangers the lives of Australians.

We do have a duty to protect Australians but we do also have a duty to protect people from all nations as well as Australians who are travelling overseas and Australians who are living overseas—in fact, we know from the events in Paris that Australians were involved in the violence that occurred over there—but we cannot make Australia safer by making other countries more dangerous. That is what these laws, effectively, do. We are exporting people suspected of terrorism to other countries that are less able to contain the threat that they post and are therefore making the world a less safe place. Could you imagine if all countries adopted this approach. We would, effectively, be exporting individuals who are violent and filled with hate into a global marketplace full of displaced, disenfranchised and violent extremists. We do not think that is the appropriate response.

We think the appropriate response is to ensure that there is a strong domestic policing response from within Australia. We do agree that our security agencies should be equipped with appropriate powers and resources to do that job. Of course, there is some debate about what the appropriate level of those powers should be. But, ultimately, we think the safest place for Australian citizens who have been convicted of violent acts and who are indeed criminals is in custody here in Australia, not roaming the international stage.

On the second point, which is the focus of this bill—punishment rather than prevention—it is of concern to us that this government has taken an approach that is focused almost entirely on punitive measures and has not done enough to focus on prevention. It must be said that, with the change of Prime Minister, there has been at least a changing tone and changing emphasis, and we welcome that, but the critical task now is to invest in building social cohesion here in Australia.

There are many ways that we can do that. There are a number of programs that we know work that go directly to those individuals who might be vulnerable to the influences of individuals who are determined to cause a danger in Australian society. We need to invest more in those social cohesion programs. There are a number of them that have been successful. It means working with affected communities. It means working with young people. It means peer-to-peer activities and outreach activities to ensure that we do have an investment in prevention, not just in dealing with crimes once they occur.

That is the second area of concern for the Greens. We do worry that the government—certainly up until very recently—has focused almost exclusively on the punitive end of the spectrum when we know the greatest dividends are to be gained through prevention and working with those affected communities.

Of course, there is the issue of this legislation really violating some quite fundamental principles of human rights and law that have existed for many centuries. We have heard many of those concerns expressed from a number of constitutional lawyers, human rights groups and community organisations. In fact, we heard from the Human Rights Commissioner. They have all objected to parts of this legislation.

Ben Saul, who is a professor of international law at the University of Sydney, said:

For a democracy ostensibly committed to liberal values, basic rights and the rule of law, this Bill is particularly bad, even by the low standards of some other Australian counter-terrorism laws. It should not be passed …

…   …   …

Exiling or banishing Australian wrongdoers is primitive, medieval, simplistic, and dangerous.

That, of course, reflects some of the concerns we have around this legislation.

Kim Rubenstein, Director of the Centre for International and Public Law said:

What the Parliamentary Committee of Intelligence and Security report and both major parties in our Parliament have failed to address is the bill's core weakness, which no amount of tinkering can amend.

That is why we will not be focusing on amending this piece of legislation but voting it down in its entirety. He goes on to say:

Its central object, of banishing certain Australian citizens, undermines the rule of law itself. In doing so, it diminishes the protection of people from the exercise of excessive and overreaching political power.

There were a number of other organisations. For example, the Human Rights Law Centre say the provisions of the bill are likely to breach international human rights law. They go on to say that the bill does not provide sufficient due-process safeguards around the removal of citizenship. They also had a number of other concerns.

The University of New South Wales law professor George Williams, himself a constitutional lawyer, suggests that the legislation put forward by the government has 'cast the net far too wide'. He believes that, with regard to the extension of section 29 of the Crimes Act, activities such as destroying or damaging commonwealth property, which would appear to not necessarily require any connection to terrorism at all, might actually catch someone who is involved in vandalism. That is clearly of concern, and Professor Williams, being a noted constitutional lawyer, is somebody who needs to be listened to. He says that possessing a 'thing' connected to terrorism is an open-ended term and is not defined.

The Australian Lawyers for Human Rights said:

While it is said that judicial review of Ministerial decisions is possible, the fact that no reasons need to be given by the Minister makes review effectively impossible. There is no transparency or accountability. The provisions overriding existing obligations to give reasons and to abide by the rules of natural justice should be removed.

I suppose the final word, in terms of legal opinion, goes to Anne Twomey, Professor of Constitutional Law at the University of Sydney, who said the bill is 'a consequence of making policy on the run and pursuing thought bubbles and sound bites … a textbook example of the sort of fiasco that occurs when processes are not followed'.

We have huge concerns about this legislation. We acknowledge this is a hangover from the previous Abbott administration. We acknowledge that, if reports are to be believed, the Prime Minister resisted any further moves in this area. It is remarkable to contemplate that the legislation was, originally, not just directed at dual nationals but also at sole nationals, at Australian citizens; effectively, under that proposal, rendering individuals stateless.

It is a shame that the new Prime Minister had an opportunity to really shed himself of some of these, as Professor Twomey describes, 'thought bubbles' and 'sound bites' when it comes to making policy and had the opportunity to really change tack, to head in a new direction, to move towards much more sensible responses to the very serious issue of violent extremism. Yet what we have instead is legislation before this parliament that violates those fundamental principles. It focuses on, I think, the wrong part of this issue and on actions once these crimes have already been committed. At a very pragmatic level, it runs the very real risk of making Australia less safe rather than more safe. It is our view that once somebody is convicted of having committed a serious crime, and these are very serious crimes, then the best place, the safest place, is for those people to be in custody here in Australia.

8:04 pm

Photo of David LeyonhjelmDavid Leyonhjelm (NSW, Liberal Democratic Party) Share this | | Hansard source

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.

8:19 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Independent) Share this | | Hansard source

I rise to contribute to the debate on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. There are two questions that come out of this government legislation. First, should Australians who betray us by supporting our enemies be stripped of their citizenship, and should they hold a second citizenship? Absolutely. Second, should a politician and not a court make the decision to strip treasonous individuals of Australian citizenship? Absolutely not.

The Vice-Chancellor of the Australian Catholic University, Greg Craven, put the argument best when he wrote on 4 June this year:

By conferring a profoundly judicial power on a minister, it mocks the separation of powers. It would be swatted down like a bug by the High Court.

As a new senator, I know that the last thing you would knowingly do as a legislator is to pass laws that are in breach of our Constitution and that would likely be ruled against by the High Court. It would mean that all the effort and time spent presenting and passing this legislation would be wasted. So, before I make a decision to support or oppose this bill, I would like the Attorney-General to give an assurance in his summation to this Senate that he will resign from the nation's first law officer's position should this bill pass and should it subsequently be successfully challenged in the High Court. If the Attorney-General can give that guarantee, then I will know that he has got some political skin in the passage of this legislation and that it has not been presented as another political stunt to give the appearance that the government is doing something. I believe that this government can do more legislatively to take the fight to our Islamic State enemies but has instead taken the easier path of fiddling with our citizenship laws instead of going straight to the heart of the matter at a time when we find ourselves under attack from within and without and charging Australian citizens who help our enemy in any way whatsoever. If we were debating laws which strengthened our existing sedition and treason laws designed for these very circumstances, I would feel a hell of a lot more comfortable.

My position on the way our federal authorities have managed suspected Australian terrorists and terrorist sympathisers is clear. If a government has enough evidence to confiscate passports and stop people from travelling to the Middle East to fight with ISIS, then we have enough evidence to charge them with sedition or treason. Quite clearly, those Australian citizens not only have a formal allegiance to a foreign power—as spoken about in section 44(i) of our Constitution—but also have a formal allegiance to a hostile foreign power which has obviously declared war on us. And the government still have not given me or this Senate a proper answer as to why they refuse to charge suspected terrorists, their Australian sympathisers and accomplices with sedition and treason. One sedition or treason trial in our courts would do more for de-radicalisation than any control order or any government handout to the Islamic community.

One sedition or treason trial in our courts would also educate our citizens about the fact that being an Australian citizen means that you cannot have divided loyalties—and certainly not with hostile foreign powers. On Canberra's Lake Burley Griffin, on the Menzies Walk, set in stone, is Australia's oath of allegiance, which is sworn by new citizens. It reads:

As an Australian citizen, I affirm my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I uphold and obey.

To some people they are some of the most sweetest-tasting words they have ever spoken; to some they are just words—once said, they will be quickly forgotten; and to others, they have been forced out and taste like poison, because they stand for the opposite of that person's values. These are the Islamic State supporters who hate our democratic values, who are disgusted by our civil rights and freedoms and will do everything they can to subvert, disobey and overthrow or laws and replace them with their sharia law.

Support for sharia law shows a clear sign of extreme radicalization; shows a split or divided loyalty to Australia and a clear sign of allegiance to hostile foreign powers; and attacks democratic principles found in Australia's Constitution and therefore is a clear sign of seditious or treasonous behaviour worthy of investigation and possible charges. It is an indisputable fact, backed up by many daily, gruesome and brutal examples, that states, countries and communities which support and enforce sharia law allow the death penalty by beheading or stoning to be imposed from a religious court on those found guilty of being homosexual, adulterous or choose to become atheists; allow their governments to torture, mutilate and remove the limbs of those, including children, found guilty by a religious court of property offences, including theft; allow their governments to strip women of the basic civil rights of freedom of thought, religion, assembly and equality before the law; allow their governments to discriminate against women by making it illegal for them to attend sporting fixtures, drive, drink alcohol, smoke, have sex before marriage, appear in public without a male chaperone, and seek an education; allow their government to encourage, tolerate or turn a blind eye to female genital mutilation and forced marriages; and allow their government to encourage, sanction, tolerate or turn a blind eye to the reintroduction of human trafficking and slavery.

Surely many Islamic people can peacefully practise their religion without supporting and advocating for sharia, or the terrorists' law. I call on all Australian Islamic leaders and leaders of other religions to condemn those who do support sharia law. If they do not condemn sharia law then, at the very least, they should not be allowed to preach hate on Fridays to impressionable young minds. I also call on the Federal Police and the federal Attorney to use longstanding, existing laws and charge with treason or sedition those citizens who support in any way whatsoever the imposition of sharia, the terrorists’ law, in Australia.

One of the problems that immigrants, particularly people from the Middle East, have is that they have no respect for or understanding of our democratic beliefs. To a degree that is understandable, because in the Middle East there really are not many functioning democracies which show a respect for Australian human rights, liberties and the rule of law. Apart from Israel, which shines a light in a very dark and dangerous neighbourhood, the majority of the Middle East is ruled by corrupt governments which, putting it nicely, are antidemocratic.

In these days where everyone is scared of political correctness, people are afraid of being seen to be discriminating against anybody. But it is okay to discriminate against people with respect to their attitude towards democracy. Like most fair-minded Australians, I do not care what colour you are, what ethnicity or race you are or whether you are a man, woman or transgender: you deserve to live a life free of discrimination. However, if you think that you can come to Australia and undermine Australia's laws, democratic values and human rights under the guise of cultural practices, then I am going to discriminate against you. It is okay to discriminate in favour of democracy and Western human rights and liberties, because we love them. That is why so many Australians died fighting in world conflicts—because of their love for their family, their friends, their mates, their country and our democratic way of life. At various points in world history, violent bastards who controlled large militaries and who hated democracy, civil rights and Western freedoms have tried to impose their sick culture upon us by force of arms. It was then up to the people who proudly discriminate in favour of democracy to take up arms and defend the innocent and our way of life.

I will now turn to the existing powers that the immigration minister has to revoke Australian citizenship. A Parliamentary Library research brief on this legislation states:

A June 2015 report by the Australian National Audit Office states that Australian citizenship has been revoked in only 16 cases over the 66 years in which Australia has offered citizenship. The provision under which a person’s citizenship ceases due to service in a foreign armed force has reportedly never been used.

The proposed amendments in the Bill represent what has been described by the Director of the Centre for International and Public Law, Professor Kim Rubenstein, as ‘a major change to the current Citizenship Act, in that the current Act only has extremely limited ways in which a person can lose their citizenship’.

It is appropriate in this debate that we remind ourselves of the powers that the minister has to revoke citizenship. The Parliamentary Library research brief on this legislation states:

Under the Citizenship Act as it currently stands, there are four main ways a person’s Australian citizenship may cease. Specifically, where:

          The first and last of these apply to Australian citizens by birth; the Ministerial revocation provisions do not. If a person ceases to hold Australian citizenship for any of the reasons outlined above, the Minister may revoke the Australian citizenship of any dependent children provided certain conditions are met, including that the child would not be rendered stateless.

          You can lose your citizenship in three new ways. According to the government's explanatory notes:

          The person ceases to be an Australian citizen if the person fights for, or is in the service of, a declared terrorist organisation. A declared terrorist organisation is any terrorist organisation as defined by the Criminal Code and declared by the Minister to apply.

          According to Australia's national security website, currently 20 organisations are listed as terrorist organisations under the Criminal Code. The 17th on that list is the Kurdistan Workers' Party, the PKK. The PKK was listed on 17 December 2005 and re-listed 28 September 2007, 8 September 2009, 18 August 2012 and 11 August 2015. The PKK is one of the most effective ground fighting forces against ISIS. They are heroic in their war against the Islamic State brutes.

          In my view, after meeting with the Kurdish community delegation at Parliament House, they are strongly supported by the Kurdish community of Australia. Estimates records confirm that Australia's military along with American military supports the PKK with supplies and humanitarian aid and, most likely, arms in order to help their fight against Islamic terrorists. Apart from the obvious question of how is it possible and legal for Australia's military to resupply and help a supposed official terrorist organisation, the next question in the context of this legislation is: can an Australian citizen who is part of our Kurdish community and who has dual citizenship, be stripped of their Australian citizenship after this bill passes this Senate?

          As this bill reads, it is a threat to the citizenship of members of Australia's Kurdish community. A minister, not an impartial judicial process, can strip members of our Kurdish communities of their Australian citizenship. This takes me back to an expert legal opinion I read at the start of my speech by the Vice-Chancellor of the Australian Catholic University, Greg Craven, who said:

          By conferring a profoundly judicial power on a minister, it mocks the separation of powers. It would be swatted down like a bug by the High Court.

          This legislation is a farce. It will be proven to be a farce and a waste of taxpayers' money and time in the High Court of Australia when it eventually happens.

          It will not do anything to better protect Australians from the threat that Islamic State terrorists and their supporters who live amongst us, and who are supported by our welfare system, pose to us. We are in a war where our opponents are not limited by any rule of humanity. They do not care how they kill us—the more gruesome the better; certainly for social media effects. Islamic terrorists will use every weapon including nerve gas, poisons, chemicals, bacteria and radiation—whatever it takes—to kill us.

          We are in war to an extinction of one side. It is kill or be killed. It is time to get real and to get tough in our fight against Islamic State. Islamic State wants to impose sharia law on the world. We must treat support for sharia law, the terrorist law, by an Australian as a sign of Islamic radicalisation. Support by people living in Australia for the terrorist law should be treated as clear evidence of treason and seditious activity, and those people should be charged with sedition or treason. If Australians are found guilty of sedition or treason, they should face between seven years and life in jail. Islamic preachers in Australia who advocate for sharia law in Australia must be immediately banned and once again charged with sedition and treason.

          Terrorists who kill in their attacks on Australian soil and who then survive and are brought before a court, should be subjected to a death penalty if an Australian jury decides that is the best way of delivering justice. Imagine if Man Haron Monis had survived the Sydney Lindt cafe attack. Should an Australian jury have had the option of sentencing the traitor and murderer to death? Absolutely, and I think you will find the majority of Australians would support that.

          Australia must double the size of our military. If every full-time member of our Defence Force was put in the MCG we would barely fill half of it—shame! We have 57,000 full-time troops—get real. We can boost the size of the military by introducing a voluntary national service and trade training scheme for our young people. Why would young people volunteer for national service? If our young people are not going to earn, learn or serve and be trained in our military then they should not receive any welfare payments. That is why we do not have to make national service compulsory—how about that. There would be a strong financial incentive for young Australians to get a job, continue their studies or join our military and serve and learn. This would change Australian culture for the better and strengthen our nation for the hard road which is in front of us.

          In closing, last week I expressed my solidarity and sympathies with France after those terrible attacks by Islamic supporters of sharia law. This week I would also like to acknowledge the role that the state of Israel plays in the global fight against Islamic radicalisation. The Jewish people have shown grace, compassion, common sense and bravery under extreme attacks by people who want to wipe them from the face of the earth. It is only now after Islamic state declared war on us that we are slowly coming to the realisation that our enemy is merciless and will not stop until we are dead or we are converted to their way of life.

          The Jewish people have known this truth for many years and have made preparations to properly protect their grandchildren from this madness and terror which comes from the Middle East. Australia can learn a lot from the Jewish people. Indeed, some of Australia's greatest citizen leaders and protectors of freedom have been Jewish. When the Liberals are prepared to stop pussy footing around with half-linked terrorism legislation, and are prepared to tackle terrorism head on, please wake me up and then you may get my support. I absolutely oppose this bill.

          8:37 pm

          Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

          I seek leave to withdraw the second reading amendment standing in my name.

          Leave granted.

          Photo of George BrandisGeorge 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.

          Photo of Cory BernardiCory Bernardi (SA, Liberal Party) Share this | | Hansard source

          The question is that the bill be read a second time.