Alannah Mactiernan (Perth, Australian Labor Party) Share this | Hansard source

When the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 was first introduced in this House I was truly appalled, and I made the statement to my community that I would not be able to support this legislation. I now accept that substantial modifications have been made to the legislation and its worst excesses have been dealt with. We have been presented with the option of accepting a package that will go a considerable way to dealing with the profound problems of this bill in its original form, or run the risk of passing a very poor and deleterious piece of legislation. We have chosen to accept the package, and I compliment the work of the joint standing committee, particularly the work of Anthony Byrne and Mark Dreyfus, in trying to claw back some of the worst excesses of this legislation. But I see it as my responsibility to flag the very deep concerns I still have about the genesis of the legislation and the legislation as it stands in its highly modified form.

What appalled me about this legislation was not the reasons that were given for its introduction. Quite clearly there had been a longstanding provision in the Citizenship Act that if a dual national participated in the armed forces of an enemy alien that was grounds for losing their citizenship. So it is appropriate, given we now have non-state participants such as ISIS, that we amend the legislation to enable that conduct to also be captured. With the rise in terrorism it is also quite understandable that where a dual national has been convicted of a serious terrorism offence we would want to have the capacity to say that they are no longer entitled to their Australian citizenship. Whether or not that is always wise is debatable, but at least those two provisions are understandable.

What was completely and utterly unacceptable to me was the unfettered power that this legislation gave the minister to be judge and jury under the absurd legal fiction that, somehow or other, when you were sitting in your lounge room and you tweeted something or wrote up a Facebook post that may have incited violence, you had thereby automatically revoked your citizenship—that it was the action you took that automatically revoked your citizenship—and all the minister was doing was engaging in an administrative action in order to let you know that you had done this and to point out that you were no longer an Australian citizen. This is absolutely mad stuff! That is still contained in the legislation, but we have put constraints around the exercise of that power that go some way to reining in the worst potential excesses of that ministerial power.

I want to focus on why we decided to go down the path of this legal fiction of self-actuating conduct that leads you—and not the minister—to be stripping yourself of your citizenship. It comes down to the very important principle of the separation of powers. Legislatures and executives have a range of powers for creating and executing policy, but when it comes to the application of the law to a particular citizen, the separation of powers says that the people that are making the determination on the facts and on whether or not those facts constitute a breach of law must be entirely separate from the law makers or the executive. That is a very important principle.

It is true that there has been some debate over time as to the extent to which this doctrine is entrenched within our Constitution. It would be true to say that in the years leading up to the Second World War, perhaps when Australia was less independent of spirit, that we tended to follow an interpretation that was more similar to that of the British, who allow for considerable deviation from this principle of the separation of powers in their legal and judicial system. What made it more complex in Australia was the fact that we had the Court of Conciliation and Arbitration, which was seen to have been an important part of the Australian political landscape. Much of the interpretation of the Constitution as being more British and not requiring the total separation of powers was done to defend this conciliation and arbitration court.

Then, in 1956, we had a landmark case—the Boilermakers' case—which changed that totally. Finally, the High Court Chief Justice at the time, Justice Dixon, who had long held this view, was able to get majority support for the proposition that was much more like the tradition that came out of the French and American legal systems, which strongly promoted the separation of powers. He was able to argue and convince the majority of the court that the very structure of our Constitution—chapter I, chapter II and chapter III—provided for the separation of powers. Chapter III sets out in great detail the things that one requires for the exercise of judicial power. We have a whole chapter devoted to how judicial power is to be exercised. Clearly, the Australian Constitution is a constitution that requires a complete separation of the power of the executive and the legislature from that of the judiciary.

It is important to understand this, because when the Citizenship Act was introduced in 1948, we had the older interpretations of the Constitution that were more British in their character. It was probably not such a live debate when that first provision about serving in the force of an enemy alien was there. This is not just a technical thing. I think it is a profoundly important point that we do not allow ministers to go around and be judges and juries on this, and we do not buy these absurd legal fictions that somehow or other the minister is just writing a letter saying, 'Hey, guys, you might not have realised it, but when you did that thing last night, that was a terrorist act, and now you're out as an Australian citizen.'

I compliment the work that was done by the Joint Committee on Intelligence and Security to constrain the range of things the minister could do, requiring ministers in most cases, despite some unfortunate exemptions, to provide reasons, and providing that appeals processes should be entrenched. The absolutely unfettered power that the original iteration of this bill gave the minister has been clawed back.

I have had some conflict with some of my colleagues on this, who say, 'You've got to presume that the government acts in good faith.' I have some German ancestors who came out in the 1870s. When I was in Germany earlier this year, they were saying, 'What is all this stuff about what happened to the German community after the First World War?' I said, 'A few people were interned, but nothing much.' I was surprised to find out about the absolutely appalling process that went on that led to 6,000 German Australians not only being interned during the war but then being forcibly deported after the war. At that stage Germans were in fact the third largest ethnic group in Australia. All of this was a surprise to me, even though I had German ancestry.

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