Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

The House has before it today a sheet of government amendments to the bill. In the main, these amendments give effect to the recommendations of the Parliamentary Joint Committee on Intelligence and Security. I spoke to those recommendations in my second reading speech on the bill on 12 November. As the minister for Immigration has indicated, there have been two further developments since that time, and the amendments before the House today reflect both of those developments.

The first is the government's correction of an error it made in the earlier form of these amendments. That error was in the drafting of section 33AA(3), which implements the recommendation 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. The relevant recommendation was recommendation (2) of the committee's report, which read:

The Committee recommends that changes be made to clarify that the conduct leading to loss of citizenship listed in proposed section 33AA of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 is intended to be considered in light of the meaning of the equivalent provisions in the Criminal Code Act 1995, and is not intended to be restricted to the physical elements.

The earlier form of the government's amendments misstated the effect of the equivalent provisions of the Criminal Code. Under section 100.1 of the code, an act is not a 'terrorist act' unless:

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i)   coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii)   intimidating the public or a section of the public.

In the initial form of the amendments circulated by the government, the bill would have covered acts done with the intention of advancing a political, religious or ideological cause or coercing or intimidating a government or the public.

This was a minor slip, but it had major consequences. The conduct elements of the Criminal Code's terror offences are, by design, broadly drawn. Terrorist conduct is distinguished from other forms of criminality by its particular motivation. As originally drafted, an inappropriately broad category of conduct going far beyond the Criminal Code offences would have been captured. Labor raised this matter with the government, and I thank it for making the necessary amendments to correct this error.

The second is the government's change to the process by which the Minister is to consider exempting a person from the revocation of their citizenship by conduct while overseas. The committee had, in recommendation (15) of its report, recommended that the minister be obliged in every case to consider exercising his or her power to exempt a person from revocation, according to a range of criteria the committee considered relevant. In the earlier form of amendments circulated, the government had implemented this recommendation. Late last week, however, 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 this exemption power, but merely permitted him or her to do so. It is unfortunate that this did not occur until after some 40 members of this House had spoken on the bill on the basis that the government accepted all of the recommendations in the intelligence committee's report.

The government has refused to release any of the Solicitor-General's advice on the bill, despite repeated requests from Labor. I asked the Attorney-General to release the new advice by the Solicitor-General relating to this particular matter, but I regret that he refused to do so. The Attorney-General did, however, provide a letter to me and the member for Corio, dated 25 November, which apparently summarises the Solicitor-General's advice. In particular, the letter reads:

The Solicitor-General is of the view that, by imposing a requirement that the Minister consider circumstances of excusal from the operation of s. 33AA and s. 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 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 provisions, but making it clear 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 prospect 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.

As with the bill as a whole, Labor has accepted the government's assurances about the constitutional implications of this particular provision, and we will support the government's revised amendments accordingly. It is important to note that the committee's recommendations about what the minister is to consider when deciding whether to exempt a person from the operation of the bill will remain fully implemented by these amendments.

I also finally note the government's explanation, in a letter dated 27 November and addressed to me and my colleague, the member for Corio, of the availability of judicial review under the revised form of the bill. The Attorney-General stated in that second letter:

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.

I commend the amendments to the House.

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