Thursday, 3 September 2020
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019; Second Reading
I table a revised explanatory memorandum relating to the bill and move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
Governments must ensure that Australia's counter-terrorism laws remain strong, targeted, and effective. There is no room for complacency in this endeavour. Our national security and counter terrorism laws are under constant review to ensure that Australia's law enforcement and intelligence agencies have the powers they need to prevent terrorist attacks and deal with those individuals who would commit them.
Recently, the Government introduced the Counter-Terrorism (Temporary Exclusion Orders) Act 2019, adding to the suite of measures to manage Australians who present a threat to the community. Today, the Government introduces the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 to amend the terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007.
The terrorism-related citizenship cessation provisions were first introduced in 2015 as a response to the threat of foreign terrorist fighters returning to Australia from Syria and Iraq.
Since 2012, around 230 Australians have travelled to Syria or Iraq to fight with or support Islamic State, and around 250 Australian passports have been cancelled or refused in relation to the Syria/Iraq conflict. Around 80 Australian men and women who have fought for, or otherwise supported Islamic extremist groups remain in Syria and Iraq.
The terrorism-related citizenship cessation provisions have been effective since their introduction. They have removed from the Australian community dual citizens who fought in Syria and Iraq and who would have sought to return home with new skills, combat experience, and lethal intent. These provisions have protected the Australia community.
The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 continues the Coalition Government's effort to address the threat of terrorism and deliver on our commitment to keep the Australian community safe. Its central reform provides for Ministerial decision-making with respect to the cessation of Australian citizenship, replacing the current automatic operation of law provisions. Under this model, the Minister for Home Affairs can cease a person's Australian citizenship if satisfied that their conduct demonstrates a repudiation of their allegiance to Australia and that it is not in the public interest for the person to remain an Australian citizen.
The overarching purpose of the Bill remains the same as when the provisions were first introduced in 2015. The Parliament recognised then, as it does now, that Australian citizenship is a common bond, involving reciprocal rights and obligations. Citizens may, through certain conduct incompatible with the shared values of the Australian community, sever that bond and repudiate their allegiance to Australia. A citizen's duty of allegiance to Australia was not created by the Australian Citizenship Act 2007, but it is recognised by it and this Bill reinforces that obligation.
The current citizenship loss provisions were recently reviewed by the Independent National Security Legislation Monitor (INSLM), who has made a number of recommendations as to how the provisions can be improved. The Bill presented here today implements the majority of these recommendations.
In his report, the INSLM states: "the notion of allegiance by citizens to Australia is thought by some to be outdated; however, there can be no doubt of its current legal relevance in international law, the law of Australia, and the law of other countries". In recognising the importance of laws to cease a person's citizenship, the INSLM recommends that sections 33AA and 35 be replaced with a Ministerial decision-making model. This is the central amendment incorporated into this Bill.
The Bill retains three mechanisms for an individual to be considered for cessation of citizenship if they repudiate their allegiance to Australia:
First, a person can cease to be a citizen if they engage in specified terrorist conduct.
Second, a person can cease to be a citizen if they fight for, or are in the service of, a specified terrorist organisation overseas. The Bill retains provisions that a person is not in the service of a declared terrorist organisation if acting unintentionally, under duress, or providing humanitarian assistance.
Third, a person can cease to be a citizen if they have been convicted of a specified terrorism offence by an Australian court.
In accordance with Australia's international law obligations, the Bill retains provisions that no persons will have their citizenship ceased unless the Minister is satisfied they are a citizen or national of another country. As an additional safeguard, the Bill includes a provision whereby if court finds the person was not a national or citizen of another at the time of the determination, their citizenship is taken never to have ceased.
In considering whether to cease a person's citizenship, the Minister must have regard to certain public interest criteria. This, amongst other things, includes the degree of threat the person poses to the Australian community, Australia's international relations, and the person's connection with the other country of citizenship. This enables the Minister to consider a person within their specific context. The inclusion of the public interest criteria aligns with one of the INSLM's recommendations.
Once the Minister has decided to cease a person's citizenship, the Minister must inform the person in writing as soon as practicable. However, the Minister retains the right to withhold notice if satisfied that giving notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations.
Similar to the existing provisions, a decision to withhold notice can remain in place for 5 years. However, the new provisions require the Minister to review this determination every 90 days. Additionally, at the conclusion of the 5 years, the person is provided notice unless the Minister extends the determination once for a year. Withholding notice does not prevent a person from seeking judicial review if they become aware of the cessation of their citizenship through other means.
Once a person is provided notice, the new provisions give them 90 days to apply to the Minister in writing for a revocation of the determination to cease their citizenship. Natural justice is afforded to the person so they can make representations on their case. This provision also aligns with a recommendation made by the INSLM.
In addition to applying to the Minister, the Bill contains several other avenues for a person's citizenship to be reinstated. Firstly, the Minister may reinstate an individual's citizenship if it is in the public interest to do so. Secondly, in certain circumstances, a person's citizenship is taken never to have ceased and it is automatically reinstated. Finally, a person can access judicial review in relation to the Minister's decision to cease their citizenship or reject their application for reinstatement.
The Bill retains existing accountability and transparency measures. The Minister must report to the Parliament and the Parliamentary Joint Committee on Intelligence and Security (PJCIS) on the use of the provisions. In upholding transparency, the Bill also amends the Intelligence Services Act 2001 to provide the PJCIS until 30 June 2021 to review the new provisions.
The Bill includes transitional provisions to manage those persons whose citizenship may have ceased under the existing provisions, but whose circumstances are yet to come to the attention of the Minister.
There are two additional measures that expand the operation of this new model.
Firstly, the Bill amends the conduct provision so that behaviour dating from 29 May 2003 onwards can be taken into consideration when the Minister determines whether to cease a person's citizenship. This enables the Government to take into consideration and address a person's historic conduct that is incompatible with the shared values of the Australian community.
Secondly, the Bill amends the conviction provision to allow the Minister to cease a person's citizenship if they are convicted from 29 May 2003 onwards of certain terrorism offences for a period or periods totalling three years. The current requirement is a sentence of six years for a conviction from 2015 to now, or 10 years from conviction from 2005 to 2015. This amendment reflects the seriousness of a criminal conviction for a terrorism offence.
The date of 29 May 2003 is pertinent, as it is the date on which relevant offences were fully enacted under the Criminal Code Amendment (Terrorism) Act 2003.
These amendments build on, adapt and modernise the citizenship cessation provisions. They strengthen the operation of the measures in response to the increasingly complex challenges facing the national security, defence and international relations of Australia.
They further establish citizenship cessation as one of a suite of measures – which includes control orders, prosecution, Temporary Exclusion Orders, the Commonwealth High Risk Terrorist Offenders scheme and de-radicalisation programs – that can be applied appropriately and proportionately on a case-by-case basis.
Australia is a united and cohesive country. It is something we pride ourselves on. In recognising and protecting this unity and cohesion, it is essential that we continue to monitor, update and amend the way in which we deal with those who would threaten it. Behaviour that harms, or seeks to harm, our community – whether that be in Australia or offshore – is in clear opposition to the common bond and shared values that underpin membership the Australian community.
This Bill is designed to protect the integrity of Australian citizenship and to ensure we have the necessary powers to keep Australians safe. It reflects the Government's strong approach to combating terrorism, and protecting the sovereignty and safety of this country and its citizens.
I commend the Bill to the House.
I seek leave to continue my remarks later.
I rise to speak on the Australian Citizenship Amendment (Citizenship Cessation) Bill 2020. I say from the outset that Labor welcomes this legislation and will be supporting it. This legislation fixes a significant problem in the bills that were passed in 2015 to remove citizenship from those dual citizens who have engaged in terrorist conduct. There was a flaw in that bill passed by the government—a flaw that was pointed out by Labor at the time, a flaw that has been called out by the Independent National Security Legislation Monitor, who said that the mechanism or the provisions in that bill for automatic loss of citizenship by conduct were flawed and should be immediately repealed and revoked.
ASIO has called for this law to be repealed and for a new model providing for the loss of citizenship for those dual citizens who have engaged in terrorist conduct to be put in place—that is, to move from the automatic loss of citizenship by conduct to a decision-making model whereby the minister makes a clear decision based on evidence provided to him or her that citizenship should be revoked and it is in Australia's national security interest that citizenship be revoked. It's important to understand that ASIO's view is that it is not always in Australia's best interest for citizenship to be revoked from a dual citizen who is engaged in terrorist conduct; it might be in our better interests for that person to retain citizenship either to gather information or to prosecute that person for those serious offences.
So, in the short time I have remaining, in anticipation that we may have less opportunity throughout the day to contribute to this debate, I make clear that Labor will be supporting this legislation. We wanted it passed this sitting week, and I look forward to the government facilitating that happening before parliament rises today. This is important national security legislation. I do draw the chamber's attention to the additional comments Labor senators have provided in the Parliamentary Joint Committee on Intelligence and Security in relation to the matters which we remain concerned about in this bill—things we would have done differently—but we are not going to let the perfect be the enemy of the good. This is a long-overdue reform. It should have been brought by the government earlier. It is time that they gave ASIO the powers that they want and need, and on that basis Labor is happy to provide support to the government for this bill to pass through the chamber today.
I note the Greens have indicated they are going to oppose this legislation and on that I say shame on them. It is important that our national security agencies have the powers that they need to deal with terrorist conduct. We take on board the advice of the national security agencies and we will be supporting this legislation.