Peter Dutton (Dickson, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill. I ask leave of the House to move government amendments (1) and (2), as circulated, together.

Leave granted.

I move government amendments (1) and (2), as circulated, together:

(1) Schedule 1, page 3 (line 1) to page 10 (line 8), omit the Schedule, substitute:

Schedule 1—Main amendments

Australian Citizenship Act 2007

1 Section 32A

  Omit:

•   you serve in the armed forces of a country at war with Australia: see section 35; or

  substitute:

•   you engage in various kinds of conduct inconsistent with allegiance to Australia: see sections 33AA, 35 and 35A; or

2 Section 33 (heading)

  Repeal the heading, substitute:

33 Renunciation by application

3 After section 33

  Insert:

33AA Renunciation by conduct

Renunciation and cessation of citizenship

(1) Subject to this section, a person aged 14 or older who is a national or citizen of a country other than Australia renounces their Australian citizenship if the person acts inconsistently with their allegiance to Australia by engaging in conduct specified in subsection (2).

Note 1: The Minister may, in writing, exempt the person from the effect of this section in relation to certain matters: see subsection (14).

Note 2: This section does not apply to conduct of Australian law enforcement or intelligence bodies, or to conduct in the course of certain duties to the Commonwealth: see section 35AB.

(2) Subject to subsections (3) to (5), subsection (1) applies to the following conduct:

  (a) engaging in international terrorist activities using explosive or lethal devices;

  (b) engaging in a terrorist act;

(c) providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;

  (d) directing the activities of a terrorist organisation;

(e) recruiting for a terrorist organisation;

  (f) financing terrorism;

(g) financing a terrorist;

  (h) engaging in foreign incursions and recruitment.

(3) Subsection (1) applies to conduct specified in any of paragraphs (2)(a) to (h) only if the conduct is engaged in:

  (a) with the intention of advancing a political, religious or ideological cause; and

  (b) 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.

(4) A person is taken to have engaged in conduct with an intention referred to in subsection (3) if, when the person engaged in the conduct, the person was:

  (a) a member of a declared terrorist organisation (see section 35AA); or

  (b) acting on instruction of, or in cooperation with, a declared terrorist organisation.

(5) To avoid doubt, subsection (4) does not prevent the proof or establishment, by other means, that a person engaged in conduct with an intention referred to in subsection (3).

(6) Words and expressions used in paragraphs (2)(a) to (h) have the same meanings as in Subdivision A of Division 72, sections 101.1, 101.2, 102.2, 102.4, 103.1 and 103.2 and Division 119 of the Criminal Code, respectively. However (to avoid doubt) this does not include the fault elements that apply under the Criminal Code in relation to those provisions of the Criminal Code.

(7) This section does not apply in relation to conduct by a person unless:

  (a) the person was not in Australia when the person engaged in the conduct; or

  (b) the person left Australia after engaging in the conduct and, at the time that the person left Australia, the person had not been tried for any offence related to the conduct.

(8) Subsection (1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person's birth).

(9) Where a person renounces their Australian citizenship under this section, the renunciation takes effect, and the Australian citizenship of the person ceases, immediately upon the person engaging in the conduct referred to in subsection (2).

Minister to give notice

(10) If the Minister becomes aware of conduct because of which a person has, under this section, ceased to be an Australian citizen, the Minister:

  (a) must give, or make reasonable attempts to give, written notice to that effect to the person:

     (i) as soon as practicable; or

     (ii) if the Minister makes a determination under subsection (12)—as soon as practicable after the Minister revokes the determination (if the Minister does so); and

(b) may give notice to that effect to such other persons and at such time as the Minister considers appropriate.

Note: A person may seek review of the basis on which a notice under this subsection was given in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903.

(11) A notice under paragraph (10)(a) must set out:

  (a) the matters required by section 35B; and

  (b) the person's rights of review.

(12) The Minister may determine in writing that a notice under paragraph (10)(a) should not be given to a person if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations. The Minister must consider whether to revoke such a determination:

  (a) no later than 6 months after making it; and

  (b) at least every 6 months thereafter until 5 years have passed since the determination was made.

Minister ' s power to rescind notice and exempt person

(13) Subsections (14) to (19) apply only if a person has renounced his or her citizenship under this section.

(14) At any time after a person has renounced his or her citizenship under this section, the Minister may make a determination to:

  (a) rescind any notice given under subsection (10) in respect of the person; and

  (b) exempt the person from the effect of this section in relation to the matters that were the basis for the notice, or in relation to matters that would have been the basis for giving a notice in respect of the person under paragraph (10)(a), but for the operation of subsection (12).

(15) The Minister does not have a duty to consider whether to exercise the power under subsection (14) in respect of any person, whether the Minister is requested to do so by the person who has renounced his or her citizenship under this section, or by any other person, or in any other circumstances.

(16) To avoid doubt, in deciding whether to consider exercising the power in subsection (14), the Minister is not required to have regard to any of the matters referred to in subsection (17).

(17) If the Minister decides to consider whether to exercise the power in subsection (14), then, in that consideration, the Minister must have regard to the following:

  (a) the severity of the matters that were the basis for any notice given in respect of the person under subsection (10), or of matters that would have been the basis for giving a notice in respect of the person under paragraph (10)(a), but for the operation of subsection (12);

  (b) the degree of threat posed by the person to the Australian community;

(c) the age of the person;

  (d) if the person is aged under 18—the best interests of the child as a primary consideration;

(e) whether the person is being or is likely to be prosecuted in relation to matters referred to in paragraph (a);

  (f) the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;

(g) Australia's international relations;

  (h) any other matters of public interest.

(18) If the Minister makes a determination under subsection (14), the Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the Minister makes the determination, a statement that:

  (a) sets out the determination; and

  (b) sets out the reasons for the determination, referring in particular to the Minister's reasons in relation to the matters set out in subsection (17).

(19) If the Minister thinks that it would not be in the public interest to publish the name of the person or of any other person connected in any way with the matter concerned, the statement under subsection (18) must not include those names or any information that may identify those persons.

General provisions relating to Minister ' s powers

(20) The powers of the Minister under this section may only be exercised by the Minister personally.

(21) Section 47 applies to a decision by the Minister to make, or not make, a determination under subsection (14), but does not apply to any other decision of the Minister under this section (including any decision whether to consider exercising the power in subsection (14) to make a determination).

(22) The rules of natural justice apply to a decision by the Minister to make, or not make, a determination under subsection (14), but do not apply to any other decision, or the exercise of any other power, by the Minister under this section (including any decision whether to consider exercising the power in subsection (14) to make a determination).

(23) An instrument exercising any of the Minister's powers under this section is not a legislative instrument.

(24) To avoid doubt, a person's citizenship is taken never to have ceased under this section because of particular conduct if:

  (a) in proceedings under section 75 of the Constitution, or under this Act or another Commonwealth Act, a court finds that the person did not engage in the conduct or have the requisite intention under subsection (3) of this section; or

  (b) in proceedings under section 75 of the Constitution, or under this Act or another Commonwealth Act, a court finds that the person was not a national or citizen of a country other than Australia at the time of the conduct; or

(c) the Minister makes a determination under subsection (14) in relation to the conduct to exempt the person from the effect of this section; or

  (d) a declaration under section 35AA is disallowed by either House of the Parliament, and the person's citizenship would not have ceased under this section if that declaration had not been made.

4 Section 35

  Repeal the section, substitute:

35 Service outside Australia in armed forces of an enemy country or a declared terrorist organisation

Cessation of citizenship

(1) A person aged 14 or older ceases to be an Australian citizen if:

  (a) the person is a national or citizen of a country other than Australia; and

  (b) the person:

     (i) serves in the armed forces of a country at war with Australia; or

     (ii) fights for, or is in the service of, a declared terrorist organisation (see section 35AA); and

(c) the person's service or fighting occurs outside Australia.

Note 1: The Minister may, in writing, exempt the person from the effect of this section in relation to certain matters: see subsection (9).

Note 2: This section does not apply to conduct of Australian law enforcement or intelligence bodies, or to conduct in the course of certain duties to the Commonwealth: see section 35AB.

(2) The person ceases to be an Australian citizen at the time the person commences to so serve or fight.

(3) Subsection (1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person's birth).

(4) For the purposes of subparagraph (1)(b)(ii) and without limitation, a person is not in the service of a declared terrorist organisation to the extent that:

  (a) the person's actions are unintentional; or

  (b) the person is acting under duress or force; or

(c) the person is providing neutral and independent humanitarian assistance.

Minister to give notice

(5) If the Minister becomes aware of conduct because of which a person has, under this section, ceased to be an Australian citizen, the Minister:

  (a) must give, or make reasonable attempts to give, written notice to that effect to the person:

     (i) as soon as practicable; or

     (ii) if the Minister makes a determination under subsection (7)—as soon as practicable after the Minister revokes the determination (if the Minister does so); and

(b) may give notice to that effect to such other persons and at such time as the Minister considers appropriate.

Note: A person may seek review of the basis on which a notice under this subsection was given in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903.

(6) A notice under paragraph (5)(a) must set out:

  (a) the matters required by section 35B; and

  (b) the person's rights of review.

(7) The Minister may determine in writing that a notice under paragraph (5)(a) should not be given to a person if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations. The Minister must consider whether to revoke such a determination:

  (a) no later than 6 months after making it; and

  (b) at least every 6 months thereafter until 5 years have passed since the determination was made.

Minister ' s power to rescind notice and exempt person

(8) Subsections (9) to (14) apply only if a person has ceased to be a citizen under this section.

(9) At any time after a person has ceased to be a citizen under this section, the Minister may make a determination to:

  (a) rescind any notice given under subsection (5) in respect of the person; and

  (b) exempt the person from the effect of this section in relation to the matters that were the basis for the notice, or in relation to matters that would have been the basis for giving a notice in respect of the person under paragraph (5)(a), but for the operation of subsection (7).

(10) The Minister does not have a duty to consider whether to exercise the power under subsection (9) in respect of any person, whether the Minister is requested to do so by the person who has ceased to be a citizen under this section, or by any other person, or in any other circumstances.

(11) To avoid doubt, in deciding whether to consider exercising the power in subsection (9), the Minister is not required to have regard to any of the matters referred to in subsection (12).

(12) If the Minister decides to consider whether to exercise the power in subsection (9), then, in that consideration, the Minister must have regard to the following:

  (a) the severity of the matters that were the basis for any notice given in respect of the person under subsection (5), or of matters that would have been the basis for giving a notice in respect of the person under paragraph (5)(a), but for the operation of subsection (7);

  (b) the degree of threat posed by the person to the Australian community;

(c) the age of the person;

  (d) if the person is aged under 18—the best interests of the child as a primary consideration;

(e) whether the person is being or is likely to be prosecuted in relation to matters referred to in paragraph (a);

  (f) the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;

(g) Australia's international relations;

  (h) any other matters of public interest.

(13) If the Minister makes a determination under subsection (9), the Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the Minister makes the determination, a statement that:

  (a) sets out the determination; and

  (b) sets out the reasons for the determination, referring in particular to the Minister's reasons in relation to the matters set out in subsection (12).

(14) If the Minister thinks that it would not be in the public interest to publish the name of the person or of any other person connected in any way with the matter concerned, the statement under subsection (13) must not include those names or any information that may identify those persons.

General provisions relating to Minister ' s powers

(15) The powers of the Minister under this section may only be exercised by the Minister personally.

(16) Section 47 applies to a decision by the Minister to make, or not make, a determination under subsection (9), but does not apply to any other decision of the Minister under this section (including any decision whether to consider exercising the power in subsection (9) to make a determination).

(17) The rules of natural justice apply to a decision by the Minister to make, or not make, a determination under subsection (9), but do not apply to any other decision, or the exercise of any other power, by the Minister under this section (including any decision whether to consider exercising the power in subsection (9) to make a determination).

(18) An instrument exercising any of the Minister's powers under this section is not a legislative instrument.

(19) To avoid doubt, a person's citizenship is taken never to have ceased under this section because of the person serving or fighting as set out in subsection (1) if:

  (a) in proceedings under section 75 of the Constitution, or under this Act or another Commonwealth Act, a court finds that the person did not so serve or fight (whether because of subsection (4) of this section or for any other reason); or

  (b) in proceedings under section 75 of the Constitution, or under this Act or another Commonwealth Act, a court finds that the person was not a national or citizen of a country other than Australia at the time the person served or fought; or

(c) the Minister makes a determination under subsection (9) in relation to the conduct to exempt the person from the effect of this section; or

  (d) a declaration under section 35AA is disallowed by either House of the Parliament, and the person's citizenship would not have ceased under this section if that declaration had not been made.

35AA Declared terrorist organisation

Declaration of declared terrorist organisation

(1) A declared terrorist organisation is any terrorist organisation, within the meaning of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code, that the Minister, by legislative instrument, declares is a declared terrorist organisation for the purposes of this section.

(2) Before declaring that an organisation is a declared terrorist organisation, the Minister must be satisfied on reasonable grounds that the organisation:

  (a) either:

     (i) is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or

     (ii) advocates the doing of a terrorist act; and

(b) 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 be in the service of such an organisation the person would be acting inconsistently with their allegiance to Australia.

(3) The making of a declaration under subsection (1) is taken not to be prescribed administrative action for the purposes of Part IV of the Australian Security Intelligence Organisation Act 1979.

Review of declaration by Parliamentary Joint Committee on Intelligence and Security

(4) The Parliamentary Joint Committee on Intelligence and Security may:

  (a) review a declaration made under subsection (1) as soon as possible after the declaration is made; and

  (b) report the Committee's comments and recommendations to each House of the Parliament before the end of the period during which the House may disallow the declaration.

35AB Sections 33AA and 35 do not apply to conduct of Australian law enforcement or intelligence bodies or in course of certain duties to the Commonwealth

(1) Sections 33AA and 35 do not apply to conduct engaged in by:

  (a) a person in the proper performance of a function of an Australian law enforcement or intelligence body; or

  (b) a person acting in the course of the person's duty to the Commonwealth in relation to the defence, security or international relations of Australia.

(2) In this section:

  Australian law enforcement or intelligence body means a body, agency or organisation of the Commonwealth, or of a State or Territory, that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud, security intelligence, foreign intelligence or financial intelligence.

5 After section 35

  Insert:

35A Conviction for terrorism offences and certain other offences

Cessation of citizenship on determination by Minister

(1) The Minister may determine in writing that a person ceases to be an Australian citizen if:

  (a) the person has been convicted of an offence against, or offences against, one or more of the following:

     (i) a provision of Subdivision A of Division 72 of the Criminal Code;

     (ii) a provision of section 80.1, 80.1AA or 91.1 of the Criminal Code;

     (iii) a provision of Part 5.3 of the Criminal Code (except section 102.8 or Division 104 or 105);

     (iv) a provision of Part 5.5 of the Criminal Code;

     (v) section 24AA or 24AB of the Crimes Act 1914;

     (vi) section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978; and

(b) the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 6 years, or to periods of imprisonment that total at least 6 years; and

  (c) the person is a national or citizen of a country other than Australia at the time when the Minister makes the determination; and

(d) the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia; and

  (e) having regard to the following factors, the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen:

     (i) the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences;

     (ii) the degree of threat posed by the person to the Australian community;

     (iii) the age of the person;

     (iv) if the person is aged under 18—the best interests of the child as a primary consideration;

     (v) the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;

     (vi) Australia's international relations; and

     (vii) any other matters of public interest.

Note: A person may seek review of a determination made under this subsection in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903.

(2) The person ceases to be an Australian citizen at the time when the determination is made.

(3) Subsection (1) applies to a person who is an Australian citizen regardless of how the person became an Australian citizen (including a person who became an Australian citizen upon the person's birth).

(4) For the purpose of paragraph (1)(b):

  (a) the reference to being sentenced to a period of imprisonment does not include a suspended sentence; and

  (b) if a single sentence of imprisonment is imposed in respect of both an offence against a provision mentioned in paragraph (1)(a) and in respect of one or more other offences, then:

     (i) if it is clear that only a particular part of the total period of imprisonment relates to the offence against the provision mentioned in paragraph (1)(a)—the person is taken to have been sentenced to imprisonment in respect of that offence for that part of the total period of imprisonment; and

     (ii) if subparagraph (i) does not apply—the person is taken to have been sentenced to imprisonment in respect of the offence against the provision mentioned in paragraph (1)(a) for the whole of the total period of imprisonment.

Minister to give notice

(5) If the Minister makes a determination under subsection (1) because of which a person ceases to be an Australian citizen, the Minister:

  (a) must give, or make reasonable attempts to give, written notice to that effect to the person:

     (i) as soon as practicable; or

     (ii) if the Minister makes a determination under subsection (7)—as soon as practicable after the Minister revokes the subsection (7) determination (if the Minister does so); and

(b) may give notice to that effect to such other persons and at such time as the Minister considers appropriate.

(6) A notice under paragraph (5)(a) must set out:

  (a) the matters required by section 35B; and

  (b) the person's rights of review.

(7) The Minister may determine in writing that a notice under paragraph (5)(a) should not be given to a person if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations. The Minister must consider whether to revoke the determination:

  (a) no later than 6 months after making it; and

  (b) at least every 6 months thereafter until 5 years have passed since the determination was made.

Minister must revoke determination if conviction overturned

(8) The Minister must, in writing, revoke a determination made under subsection (1) in relation to a person if:

  (a) a conviction because of which the determination was made is later overturned on appeal, or quashed, by a court; and

  (b) that decision of that court has not been overturned on appeal; and

(c) no appeal, or further appeal, can be made to a court in relation to that decision.

(9) If the Minister revokes the determination, the person's citizenship is taken never to have ceased under this section because of that determination.

General provisions relating to Minister ' s powers

(10) The powers of the Minister under this section may only be exercised by the Minister personally.

(11) Except for the powers of the Minister under subsection (1), the rules of natural justice do not apply in relation to the powers of the Minister under this section.

(12) Section 47 does not apply in relation to the exercise of the powers of the Min

Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

In my speech on the second reading I spoke in support of the legislation before the House, including the package of amendments which emanated from the recommendations made by the Parliamentary Joint Committee on Intelligence and Security. So I do not intend to say any more relation to that, but I do wish to speak briefly in relation to those additional matters that were circulated by the government as a result of the advice that was received by the government last week.

As the minister has referred to, the government received advice in respect of the constitutionality of the amendments emanating as a result of the recommendations from the PJCIS. As a result of that advice, the government met with both me and the shadow Attorney-General to seek an additional amendment to those amendments in order to further bolster the constitutionality of this legislative package.

There were constitutional issues raised during the hearings of the PJCIS, and I spoke about that in my speech on the second reading. The opposition at that time made it clear, as I do now, that it is of course for the government, in bringing legislation before this parliament, to be certain of the constitutionality of that legislation, and we were provided with a letter from the Attorney-General to the Joint Committee on Intelligence and Security, which was made public, assuring us of the government's confidence in the constitutionality of the legislation.

In raising with us the issue that there may be further amendments to those that emanated from the parliamentary joint committee, it was also made clear that the motivations for those was in respect of constitutionality, and we again sought assurances from the government that this would assist in the ultimate constitutionality of the legislation before the parliament. The Attorney-General wrote to both me and the shadow Attorney-General on 25 November making it clear that these additional amendments seek to further enhance constitutionality of this legislative package.

Once again, I make the point from the view of the opposition that it is of course for the government to be confident of the constitutionality of this legislative package. We appreciate the letter that was provided on 25 November giving an indication of the government's confidence in these new amendments and what they do in terms of the constitutionality of the package, and it is on the basis of that that we continue to proceed forward in support of this legislative package. But it is of course for the government to be confident of the constitutionality. It does, as a result, change the substance of the recommendations that were agreed to by the Parliamentary Joint Committee on Intelligence and Security, in particular, in respect of recommendation 15, which goes to the question of a judicial review which ultimately is available to those persons who have their citizenship cancelled by virtue of their own conduct. Whereas previously there was a mandatory requirement in recommendation 15 for the minister to consider whether there were any extenuating circumstances such as would warrant the rescinding of a loss of citizenship resulting from the operation of a person's conduct, that is now a matter of discretion for the minister.

Again, we sought clarification from the government in respect of the ultimate ability for judicial review to be available to persons in this circumstance. As the minister made clear in his speech, and as we understand has been put into the supplementary explanatory memorandum, and as was provided in a letter to the opposition again by the government on 27 November, the right of judicial review for all persons who find that their citizenship has been revoked as a result of their own conduct is still available, albeit that it is narrowed by virtue of this amendment. The continued presence of a judicial review is important for the opposition in continuing to support this process, which we do. We also note in that sense that the critical focusing of this legislation which emanated as a result of the recommendations of the Parliamentary Joint Committee on Intelligence and Security—that is, the limitation of a loss of citizenship by operation of conduct to those people acting overseas—remains intact and is unaltered by virtue of these new amendments.

As result of all of that, the opposition is comfortable to move forward and support this package of legislation. It is important legislation. We do, as a parliament, need to have as our primary responsibility keeping our nation safe. The minister is right when he says that there is an unprecedented level of concern in relation to our nation's security. In doing that, we have to get the balance right of people's rights versus addressing the needs of our nation's security, and the opposition believes that this legislative package ultimately does that.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to 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.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Parliament is being treated with contempt. We are dealing with serious issues of terrorism; we are dealing with the serious issue of the relationship between parliament, the executive and the courts. We are dealing with one of the most fundamental issues: when someone, who is a citizen and who might even have been born here, loses their citizenship. In walks the minister with 14 pages of amendments to some of the most fundamental laws in this country at a time when we are dealing globally with one of the most serious questions about how to deal with terrorism and how to make Australia safer. He says, 'Pass this now—I want you to trust me that it's all going to be okay.'

These provisions have not been the subject of any inquiry by this parliament. These provisions have not been looked at by dispassionate experts in the field who know that when emotions are running high it is often the worst time to be making decisions about fundamental principles of the rule of law and to be giving the executive more powers. These have not even been looked at by the closed shop of a joint committee, which Labor and the coalition set up to deal with this matter in the past. Instead, the parliament is told just to accept this on trust and that a backroom deal has been done. Parliament is about more than backroom deals between Labor and the Liberals. Parliament is about giving an opportunity to scrutinise what a government is doing when it is trying to use national security issues to gain votes. Blind Freddy can see that that is what has been going on, certainly under the previous regime. What we have here is a Tony Abbott era bill brought back up and given life and now being pushed through the parliament, and it is being done, sadly, with the support of the opposition.

The Greens have said from the beginning that this bill will do nothing to make us safer. We have stuck with a fairly straightforward principle, which is that if someone breaches the laws of this country and take steps that indicate they are going to attack us and attack our people and potentially kill people, if they commit acts that are tantamount to murder and break laws, then you prosecute them in the courts and whatever punishment the courts mete out is what they get. If someone comes to Australia or if someone is born in Australia and wants to bomb us or wants to attack us and they are convicted, then send them to jail. As to the suggestion that someone who is so motivated that they are prepared to blow themselves up and take others with them is somehow going to be persuaded by the fact that they might have their citizenship affected, from the beginning we have said to show us the evidence. The government has none, and it has none because this has been an ideological bill from the start. That is why organisation after organisation that is concerned about safety, that is concerned about terrorism but above all is concerned about the principles that define a democratic society have lined up to say there is nothing in this that will make us safer and it might not work. It suggests that we were onto something. It suggests that we were onto something when we said this bill will not make us safer, and in fact it might contravene some of the fundamental principles of rule of law in this country.

The government comes in here with 14 pages of amendments and tells us to take them at face value because they will tidy things up. Have these amendments been drafted so recently, and is there some urgency that means the legislation has to go through now? No. The footer of this document suggests that these amendments were prepared on 27 November at 5.12 pm. They were done last Friday—they could have been out in the public domain and open to scrutiny from commentators, from academics, from journalists and from people who are going to be asked to vote on it but, no, as is the case with everything with this government, transparency is a foreign concept—secrecy rules the day: hold onto these amendments, do a backroom deal and then come here and ask us to pass them. I am very proud that at least on this the Greens will be part of the opposition, because this is a Tony Abbott era bill that will do nothing to make this country safer. I urge Labor: please stop rolling over for the government on this stuff because if you give them an inch they will take a mile. There is nothing that they will not do. They will talk about dual nationals, they will come after sole nationals next and this country will not be any safer for that. I will not be a party to this process of passing bad laws quickly. We do not know what is in these amendments, and 25 per cent of the population do not vote for either Labor or the coalition and they and their representatives in this place deserve to be treated with respect. You cannot come in here on such a fundamental matter and ask us to pass amendments and laws like this.

Peter Dutton (Dickson, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

The fundamental point made by the member for Melbourne relates to the applicability or success of this bill. The government was guided by what has happened in the United Kingdom, where for some time a bill introduced as I recall by the Blair government allowed for dual citizens to be stripped of their British citizenship, and in fact it went further than that, and that has resulted in a number of people, having lost their citizenship, not returning to the UK. Our judgement, and certainly the judgement of others, is that that does go to protect our national interest, by providing a situation where we do not render somebody stateless but we disallow the return of that person to Australia if they have engaged in a terrorist act. That is in our national interest. I think the contribution from the member for Melbourne earlier would only reinforce in the minds of good thinking Australians, the vast majority of Australian's, that thank goodness the Greens are not in control of national security in this country.

The Joint Committee on Intelligence and Security, which is made up of members of the government and the opposition, properly contemplated the provisions the government put forward in this bill. It does provide checks and balances, it does provide the appropriate responses and it does allow people to review in certain circumstances decisions that have been taken or ways in which this bill acts. On that basis we do believe we have a balanced approach to what is a very serious issue and, as we have seen in Paris, in Lebanon and elsewhere in recent weeks, this is a significant issue that will only get worse and governments in Western democracies like ours need to respect the rule of law, we need to respect people's individual liberties, but at the same time we need to protect the public. The balance has been struck here. It is a refined bill, a bill improved with the assistance of the committee and with the input of the opposition, and the final proposal does meet the fine balances required in such a response. I can only, again, reject the suggestions made by the honourable member and point to the fact that the Greens have never really supported any national security bill. That is why this government is determined to make sure that we have the appropriate balance in place ultimately to protect the Australian people.

Question agreed to.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

The question now is that the bill, as amended, be agreed to.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the noes in this division, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr Bandt, Ms McGowan and Mr Wilkie voting no.

Bill, as amended, agreed to.