Andrew Hastie (Canning, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee's advisory report, incorporating a dissenting report, on the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—I am pleased to present the committee's advisory report on the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018. The bill proposes to amend section 35A—conviction for terrorism offences and certain other offences—of the act. Clause 1 of the bill proposes repealing existing subsection 35A(1) of the act and replacing it with a new subsection 35A(1).

While the proposed provisions largely mirror those in the current subsection 35A(1), the bill makes three major changes. First, the person's citizenship may be revoked if they are convicted of associating with a terrorist organisation under section 102.8 of the Criminal Code and other conditions are satisfied. Second, a person's citizenship may be revoked if the minister is satisfied that the person would not, if the minister were to determine that the person ceases to be an Australian citizen, become a person who is not a national or a citizen of any country. Third, a person convicted of a specified terrorism offence need no longer to have been sentenced to a period of imprisonment of at least six years or to periods of imprisonments that total at least six years, as required under current section 35A(1). No minimum sentence is required in the legislation in order for someone convicted of a relevant offence to have their citizenship revoked. This provision would apply retrospectively to all individuals who have been convicted of a specified terrorism offence from 12 December 2005.

In its submission to the committee, the Department of Home Affairs noted the changes in the threat environment that necessitates the passing of this bill. The department stated:

At the time section 35A (along with sections 33AA and 35) was inserted into the Citizenship Act, the threat environment was largely characterised by the danger posed to Australia and its interests by foreign fighters, including those who sought to return to Australia after travelling to the conflict zone …

The number of Australians (and other foreign terrorist fighters) attempting to travel to the conflict zone has reduced considerably with the collapse of the self-declared caliphate of the Islamic State of Iraq and the Levant (ISIL). However, the violent ideology of Sunni Islamist terrorist groups, such as ISIL and al-Qa'ida, continues to appeal to a small number of people in Australia, and security and law enforcement agencies remain focused on stopping a terrorist attack in Australia.

  …   …   …

As at 3 January 2019, 58 individuals have been convicted and sentenced for Commonwealth terrorism offences in Australia since 2001. Forty-six of these individuals (just over 80% of the cohort) were sentenced in the last three years, after the commencement of the provisions in the Allegiance to Australia Bill from 12 December 2015.

  …   …   …

As at 3 January 2019, while 12 individuals offshore have ceased to be Australian citizens as a result of terrorism-related conduct, no individuals have had their Australian citizenship ceased under section 35A of the Citizenship Act.

To ensure that this committee will have the opportunity to review the effect of these changes, it has recommended:

… section 29(1)(ca) of the Intelligence Services Act 2001, be amended so to require that the Committee review the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act 2007 and any other provision of that Act as far as it relates to those sections, by 1 December 2020.

The act currently requires the committee to report by 1 December 2019. Increasing the time frame in which the committee will report this amendment to the Intelligence Services Act will allow time for the new citizenship loss provisions to take effect. The committee is satisfied with the provisions contained in the bill and recommends that the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 be passed.

In closing, I want to make a note on bipartisanship. This committee over the past few years, particularly the last two years while I have been chair, has approached the task of legislative review in a spirit of bipartisanship. This iterative process leads to stronger legislation. However, this parliament is democratic. It's where we fight over ideas and our principles, and we won't always agree. In this case, we don't agree. That's okay. This is Australian democracy. I want to particularly thank the deputy chair, the member for Holt, for his support in this process, as well as the member for Eden-Monaro and the member for Isaacs, who's been a good sparring partner!

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

by leave—This is a sad day. In the last five years, government and opposition members of the Parliamentary Joint Committee on Intelligence and Security have worked together to make well over 300 bipartisan recommendations to improve and strengthen some 19 national security bills. On each occasion, Labor members of the committee have joined with our Liberal colleagues in issuing a unanimous report—but not today.

In his valedictory speech, the former Attorney-General, George Brandis, listed three reasons why our domestic national security policy has been successful over the past four, now five, years. The second reason he listed was bipartisanship. Referring to eight national security bills introduced by the Abbott and Turnbull governments and supported by Labor, he said:

All eight tranches of legislation were passed with the opposition's support after scrutiny by the PJCIS. It was a fine example of government and parliament working hand in hand to protect the national interest. I have heard some powerful voices argue that the coalition should open a political front against the Labor Party on the issue of domestic national security. I could not disagree more strongly. One of the main reasons why the government has earned the confidence of the public on national security policy is there has never been a credible suggestion that political motives have intruded. Were they to do so, confidence not just in the government's handling of national security but in the agencies themselves would be damaged and their capacity to do their work compromised. Nothing could be more irresponsible than to hazard the safety of the public by creating a confected dispute for political advantage. To his credit, the Prime Minister has always resisted such entreaties.

Of course, the Prime Minister he was talking about was not the current Prime Minister but Mr Malcolm Turnbull. As was widely reported, and even more widely understood, the 'powerful voices' that Mr Brandis was referring to included the current Minister for Home Affairs.

While I disagreed with Mr Brandis on many matters, I think when he was leaving parliament he finally found the courage to describe, in his valedictory speech, what he'd been observing in his own party's shift to the right, when he said:

…increasingly, in recent years, powerful elements of right-wing politics have abandoned both liberalism's concern for the rights of the individual and conservatism's respect for institutions, in favour of a belligerent, intolerant populism which shows no respect for either the rights of individual citizens or the traditional institutions which protect them … This presents a threat to both liberalism and conservatism and a profound challenge to the Liberal Party …

Mr Brandis is now gone, replaced by an Attorney-General who appears to hold none of the same concerns as his predecessor when it comes to his colleagues trashing their party's core values and undermining bipartisanship on national security matters by devising disputes over national security issues for cynical and entirely partisan political reasons. Malcolm Turnbull is also gone, replaced by a Prime Minister who has eagerly teamed up with the Minister for Home Affairs to, in the words George Brandis, 'open a political front against the Labor Party on the issue of domestic national security'. That's all he has to offer the Australian people. They've run out of policies, so all they have left is fear.

Also gone are the spines of many of the government's frontbench and, apparently, of the former frontbench. The coalition has been here before. In 2015, the now Minister for Home Affairs's proposal to give a minister the power to strip an Australian of their sole citizenship divided the cabinet, resulting in cabinet leaks detailing the clash and a decision by that government to back down on that unprecedented proposal. As one political journalist memorably described it at the time: 'The Liberal Party were so busy trying to wedge Labor, they wedged themselves.' Yet, under this new law, the Minister for Home Affairs could do precisely what even Mr Abbott's cabinet could not countenance. What has happened to those voices who stood firm against the Minister for Home Affairs in 2015? What did the member for Sturt say when the Minister for Home Affairs brought this proposal to cabinet? And what does the member for New England have to say about this bill? How about the member for Menzies or the member for Curtin? What happened to their principles? This government has run out of policies, so all it has is fear and the politics of fear. Make no mistake: this bill is all about politics for this government.

There is no higher priority for Labor than keeping Australians safe. We support cancelling the citizenship of Australians who are dual nationals and who have demonstrated that they no longer owe allegiance to Australia. That is why Labor members joined with our colleagues to recommend the passage of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, which first introduced section 35A into the Australian Citizenship Act, the provision this current bill is seeking to amend. It is, in part, because we support the current laws that Labor members of the intelligence committee cannot support the majority report and why Labor cannot support this bill in its current form. Under the current section 35A of the Australian Citizenship Act, a person may have their Australian citizenship cancelled if they are convicted of a prescribed terrorism offence, they are given a prison sentence of at least six years and they hold the citizenship of another country. The citizenship revocation provisions introduced in 2015 have been used to cancel the citizenship of 12 people. Labor supports the current law. This bill would amend section 35A by significantly expanding the Minister for Home Affairs's existing power to revoke a person's Australian citizenship to people who have committed a broader range of offences and who have never been given a prison sentence, and amend the requirement that a person must, as a matter of fact, be a citizen of another country to a requirement that the minister merely has to be satisfied that the person would not become a person who is not a national or citizen of any country if the person has their Australian citizenship revoked.

If the changes in this bill are implemented, it would be for the Minister for Home Affairs to personally decide whether a person who is convicted of a prescribed offence has repudiated their allegiance to Australia, even if that person has not been given a prison sentence by a court. And it would be for the minister to personally decide whether a person is a citizen of another country, based not on the objective facts relevant to the subject's citizenship status but rather on the minister's opinion. We would all have to put our trust in the Minister for Home Affairs. We do not trust the Minister for Home Affairs to exercise such a broad and subjective power consistently, responsibly and in Australia's national interest. But our lack of confidence in the Minister for Home Affairs is something I'll return to later.

Our primary concern is that this bill is likely to be found unconstitutional by the High Court of Australia. Unlike the Liberal members of the Joint Committee on Intelligence and Security and the entire government of Australia, my colleagues and I are not prepared to ignore the evidence presented by eminent constitutional lawyers and scholars who told the committee that the bill is likely to be struck down by the High Court. For example, Professors George Williams and Kim Rubenstein said it was 'more likely than not' that the High Court would find section 35A, as amended by this bill, unconstitutional. Peter Hanks QC, in a formal legal opinion that I obtained after the government refused to provide my colleagues and me with any advice or assurances on the issue of constitutionality, concluded that had there would be a 'substantial risk' of this happening. It should go without saying that Australians are not made safer by laws that are struck down by the High Court as unconstitutional. We're not interested in giving convicted terrorists a free kick in the High Court—yet this government does not seem to care.

Of course, this government is more than happy to play politics with the Constitution. In this House on Tuesday, we heard a desperate, self-righteous and utterly misleading sermon on the subject by the Attorney-General. In an attempt to intimidate our colleagues on the crossbench into voting in favour of a motion that would have saved the government from an historic loss on the floor of the House, the Attorney-General bellowed:

If you vote against this motion, you would be putting us as a parliament and every one of us as parliamentarians in contempt of the Australian Constitution, and you'd be doing it because it's convenient for you to do it.

I could scarcely believe what I was hearing because, after trying and failing to obtain assurances from representatives of the Department of Home Affairs that this bill was constitutional, I had written to the Attorney-General on 1 February 2019, seeking assurances directly from him. What did this supposed champion of the Australian Constitution do? Nothing. While he was busy cooking up a phony constitutional crisis, for base political reasons, on a matter which can never be taken to the High Court, he was ignoring a very real issue, the constitutionality of this bill, which could very well end up in the High Court.

Despite the considered legal concerns that had been cogently presented to the committee in public evidence by eminent constitutional experts, the explanatory memorandum does not mention the Constitution of Australia at all. The Department of Home Affairs' submission to the committee did not refer to the Constitution of Australia at all. During the public hearing on 30 January 2019, the Department of Home Affairs admitted to the committee that the government had never sought the advice of the Solicitor-General, whose advice is routinely sought in relation to complex constitutional questions, about the prospects of this bill surviving a constitutional challenge or how the citizenship bill could be amended to put it on a stronger constitutional footing. Representatives of the Department of Home Affairs refused, in response to questions from my colleagues and me, to reveal anything about the advice that the government apparently has received regarding the prospects of the citizenship bill surviving a constitutional challenge; and the Attorney-General of Australia, who is tasked with upholding the rule of law, refused to deal with legitimate public concerns about the constitutional risk of this bill.

Make no mistake, the constitutionality of this bill is not an academic point. The government is not proposing to add a power to the Australian Citizenship Act. Rather, the government is proposing to amend the existing power under section 35A to cancel the Australian citizenship of citizens with dual nationalities who've been convicted of a terrorism offence for which they have been sentenced to six or more years in prison. If the citizenship bill proceeds and section 35A is struck down by the High Court, there will be no section 35A at all. This would mean that the existing regime, which Labor supports, would be removed, with the effect that serious terrorists with dual nationalities could no longer be deprived of their Australian citizenship under the Australian Citizenship Act. Why would the government try to push through a bill that is likely to be struck down by the High Court, without asking the Solicitor-General for advice? In the words of George Brandis, it is to 'open a political front against the Labor Party on the issue of domestic national security'.

In addition to constitutional concerns, submitters to the committee's inquiry expressed a number of other concerns, including that, despite recent comments by the current Attorney-General that 'retrospective criminal law is probably the most serious and unwarranted thing that any government anywhere in any democracy can do', this bill would apply retrospectively to 12 December 2005 without qualification. There would be no merits review available to anyone whose citizenship is revoked under section 35A, so, despite the enormous impact of stripping an Australian of their citizenship, they have no right to even question the minister's decision. As a matter of law, the amendments to section 35A would make it possible for the Minister for Home Affairs to render a person stateless in contravention of the Convention on the Reduction of Statelessness 1961, to which Australia is a party—a scenario previously ruled out by the former Prime Minister Malcolm Turnbull. The removal of the current requirement that a person has been sentenced to a period of at least six years in prison, or to periods of imprisonment that total at least six years, may result in arbitrary decision-making and the personal, subjective ministerial power under section 35A being used in a disproportionate manner. Each of these concerns warrants careful attention. The government paid them no consideration at all.

Even if we joined with the government in ignoring all of the legal and constitutional issues with this bill, we would still hold serious doubts about the ability of the current Minister for Home Affairs to exercise such a broad, subjective decision-making power responsibly or in Australia's national interest, especially in the light of the recent fiasco concerning Neil Prakash. On 29 December 2018, the Minister for Home Affairs announced that Neil Prakash had lost his Australian citizenship under section 35 of the Australian Citizenship Act. Mr Prakash, by the way, was born in Melbourne. On the same day, it was reported that the minister and the Department of Home Affairs believed that Mr Prakash is a citizen of Fiji. The minister has also said that the government had legal advice which concluded that Mr Prakash is a citizen of Fiji. The problem with all of that is that Mr Prakash is almost certainly not a citizen of Fiji, and so, unless he is a citizen of a country other than Fiji or Australia, which the government does not claim, he is almost certainly still an Australian citizen. The reason I say Mr Prakash is almost certainly not a citizen of Fiji is that Fiji tell us he isn't, and they should know. It's also that representatives of the Department of Home Affairs told the intelligence committee in a public hearing on 30 January 2019 that the department never bothered to consult with an expert on Fijian citizenship law or hold any discussions with the Fijian government about Mr Prakash's citizenship status before the minister jumped in front of the cameras to deliver his press conference.

The Minister for Home Affairs' blundering announcement about Mr Prakash achieved the following: it got him a few headlines in the media, it damaged Australia's relationship with an important security partner in Fiji, and it undermined the Australian public's trust in this government's capacity to competently implement our national security laws. Clearly, the damage that the current Minister for Home Affairs did to Australia's relationship with Fiji resulted directly from his inept administration of section 35 of the Australian Citizenship Act. That damage was both entirely avoidable and completely pointless. Now the minister is seeking to further expand his power under section 35A to make uninformed, subjective determinations with the potential to impact Australia's foreign relations. Why would any Prime Minister or any government risk further embarrassment to Australia and damage to our regional security relationships by trying to hand such an incompetent minister additional powers of this nature? In the words of George Brandis, it is to 'open a political front against the Labor Party on the issue of domestic national security'.

If the parliament is still not convinced that this last-minute attempt to rush this law into the parliament is all about the current political desperation of the Morrison government rather than the nation's security, I draw the attention of the House to the committee's 2015 Advisory report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The amendments to the Australian Citizenship Act proposed in this bill are directly contrary to three of the bipartisan and unanimous recommendations made by the committee in that 2015 report. Recommendation 7 said that an individual's citizenship should not be revoked under section 35A of the act unless they had been convicted of a relevant offence with a sentence applied of at least six years imprisonment, or multiple sentences totalling at least six years imprisonment. Recommendation 9 said that an individual's citizenship should not be revoked under section 35A of the act unless they had been convicted of an offence that carries a minimum penalty of 10 years imprisonment. Recommendation 10 said that section 35A may be applied retrospectively to convictions for relevant offences where sentences—that's actual sentences—of 10 years or more had been given. However, retrospectivity must not apply to convictions handed down more than 10 years prior to the bill receiving royal assent.

That same 2015 report of the Parliamentary Joint Committee on Intelligence and Security was unanimously re-endorsed by the committee as recently as eight months ago, in June 2018, in the advisory report of the committee on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. The same Liberal members of the committee who co-authored that report are signatories to the majority report with respect to this bill. They provide no explanation for their about-face today on these key recommendations—none.

Moreover, when Labor and the government passed the allegiance to Australia bill in 2015, the government established a clear and deliberative process for reviewing and, if necessary, amending the citizenship revocation provisions introduced by that bill, including section 35A. That process was established in response to two of the intelligence committee's other recommendations from its 2015 report. First, the then Minister for Immigration and Border Protection, now the Minister for Home Affairs, promised in the explanatory memorandum to the allegiance bill that the Prime Minister would refer the citizenship revocation provisions, including section 35A, to the Independent National Security Legislation Monitor, who would report by 1 December 2018. Second, the intelligence committee would, with the benefit of the monitor's report, review the same provisions and report by 1 December 2019. That process, which was recommended by a Liberal-majority committee chaired by the now Minister for Education and endorsed by the current Minister for Home Affairs as the then minister responsible, has not been observed. The promised referral to the monitor was never made and the review by the intelligence committee has not yet taken place. To date, the government has offered no explanation for this failure.

The government's failure to honour and act upon commitments made to this bipartisan and statutory committee shows a disregard for parliament and convention. And it serves as yet further evidence that this bill is not about improving national security laws—there was a process in place for doing that, and this government didn't bother to do it.

I will say it again: this bill is about nothing more than opening 'a political front against the Labor Party on the issue of domestic national security' by a desperate and irresponsible government.