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

[by video link] The terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 were first introduced by the Australian Citizenship Amendment (Allegiance to Australia) Bill in 2015. Given the unprecedented nature of that legislation, the then Minister for Immigration and Border Protection, now the Minister for Home Affairs, gave a written undertaking that the new provisions would be reviewed by the Independent National Security Legislation Monitor by 1 December 2018. The Minister for Home Affairs did not honour his written undertaking. Instead, he asked the Attorney-General to introduce the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill on 28 November 2018. That bill would have amended one of the terrorism-related citizenship loss provisions, section 35A, and left the other two, sections 33AA and 35, untouched. It was a very bad piece of legislation, and it was rightly opposed by Labor.

Instead of proceeding with that rushed and misconceived bill, the Morrison government actually did what Labor urged it to do. It abandoned the bill and referred all of the terrorism-related citizenship loss provisions to the Independent National Security Legislation Monitor for review. The then monitor, Dr James Renwick SC, completed his review in August 2019 and made a number of very significant recommendations for reform. Most significantly, Dr Renwick recommended that sections 33AA and 35 of the Australian Citizenship Act be urgently repealed and replaced. Notably, Dr Renwick also recommended that section 35A, the provision that the Morrison government had tried so hard to amend in late 2018 and early 2019, be retained in its current form.

Under sections 33AA and 35, any dual nationality citizen of Australia loses their Australian citizenship automatically if they engage in terrorism related conduct that repudiates their allegiance to this country. That occurs without any decision being made by the minister or another Australian authority. Indeed, a person's Australian citizenship can be cancelled without anyone even being aware that it has happened. Dr Renwick found that sections 33AA and 35 operated in an uncontrolled and uncertain manner. ASIO subsequently told the Intelligence and Security Committee that the fact that those provisions operate automatically may lead to unintended or unforeseen adverse security outcomes for Australia. This is because there may be circumstances in which the better security outcome would be that a person's Australian citizenship is retained, even if the person meets the strict legislative criteria for citizenship cessation under section 33AA or section 35. In other words, measures that the government said would make Australians safer could, in some circumstances, place Australians in greater danger. That is an intolerable state of affairs.

The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 would repeal sections 33AA and 35—the provisions that create this intolerable state of affairs—and replace those provisions with section 36B, a ministerial decision-making model of citizenship cessation. In doing so, the bill would implement several of the Independent National Security Legislation Monitor's key recommendations. For that reason, Labor support the bill.

As ASIO told the Intelligence and Security Committee in supporting the move to a ministerial decision-making model:

While fully supporting the move to a ministerial decision-making model, Labor does have concerns with aspects of the citizenship cessation bill. To the extent possible, Labor believes that the bill should be consistent with the following key principles.

First, given that the key concern about sections 33AA and 35 of the Australian Citizenship Act relates to the automatic operation of those provisions rather than their inadequate scope, the proposed new section 36B should not expand the range of circumstances in which an Australian may lose his or her citizenship beyond the scope of the existing provisions. Second, any decision by the minister to deprive a person of his or her Australian citizenship must be subject to what Dr Renwick described as 'meaningful review'. Third, the limitations and safeguards in respect of the power to cancel a person's Australian citizenship should be consistent with the fundamental democratic values of our nation that the provisions are designed to protect, including the rule of law, and reflect the seriousness of depriving an individual of Australian citizenship. Fourth, the bill should be consistent with Australia's international obligations, including the Convention on the Reduction of Statelessness. Fifth, the bill should be placed on the strongest possible constitutional footing.

Had the government implemented each of Dr Renwick's detailed and considered recommendations, Labor believes, the citizenship cessation bill would be broadly consistent with each of these principles. As it happens, the government has not implemented each of the monitor's recommendations, nor has the government adequately explained why it has failed to do so. In respect of the first principle that I have just mentioned, section 36B would not merely replace sections 33AA and 35 with a ministerial decision-making version of those provisions it would also expand the range of circumstances in which the minister would be able to cancel a person's citizenship. For example, under section 36B it would not be necessary for the minister to be satisfied that a person engaged in proscribed conduct with any particular intention. By contrast, under the existing section 33AA a person must have in fact engaged in proscribed conduct and must have in fact done so with a terrorism related intent. Section 36B would apply retrospectively to conduct that occurred on or after 29 May 2003. By contrast, the provisions that section 36B would replace—sections 33AA and 35—have no retrospective application at all, and under section 36B it would no longer be necessary for a person to in fact be a citizen or a national of another country; it would only be necessary for the minister to be satisfied that the person would not 'become a person who is not a national or a citizen of any country'.

None of those features of the new section 36B has been sufficiently explained or justified. In an additional comment to the intelligence and security committee's report on this bill, tabled yesterday, Labor members of the committee set out in detail a number of problematic features of the bill and how those matters ought to be addressed. I would urge people to read the additional comments.

While I do not have time in this speech to elaborate on all of Labor's concerns with the bill, I would like to put a few additional matters on the record. The power to cancel a person's Australian citizenship is an extraordinary power. It must only be exercised in extreme circumstances and only where doing so is in the interests of the wider Australian community. And this extraordinary power must be subject to stringent safeguards. Australian citizenship is not akin to a visa and it must never be treated or thought of like one. And yet there are a few worrying signs that the current government appears to regard Australian citizenship as if it were no more significant than a visa. For example, several aspects of the proposed section 36B are very closely modelled on section 501 of the Migration Act 1958—that being the minister's power to cancel a person's visa on character grounds—and in an appearance before the intelligence and security committee last year a senior official from the Department of Home Affairs repeatedly characterised Australian citizenship as a mere privilege, a proposition that was strongly and rightly rejected by multiple committee members, including, to his credit, the member for Goldstein.

It is partly because of the value that Labor places on Australian citizenship that we believe that the power to take it away should only be exercised in extreme circumstances and subject to stringent safeguards. To that end, the Independent National Security Legislation Monitor recommended that the minister's determination of whether a person had engaged in prescribed terrorist conduct be reviewable by the Administrative Appeals Tribunal. It is true that there is currently no merits review under sections 33AA and 35, but that is because the issue of 'merit' does not arise in a legal sense, because those provisions operate automatically. There is no 'decision' by the minister to review. Also, a person must have, in fact, engaged in prescribed conduct with terrorism related intent in order to lose his or her citizenship under section 33AA, which is a higher threshold than ministerial satisfaction.

The government has offered no coherent justification for rejecting that modest proposal by the monitor for merits review by an independent tribunal. The government's failure to offer any proper justification for the retrospective application of section 36B, or section 36D for that matter, is equally concerning. It was after all the current Attorney-General who, in late 2018, said:

Retrospective criminal law is probably the most serious and unwarranted thing that any government anywhere, in any democracy can do…

Yet here they are introducing retrospectivity on a huge scale.

It is not Labor's position that retrospective laws, including retrospective laws that affect fundamental rights, can never be justified in any circumstances, but the circumstances will be very rare and such laws must always be clearly justified. This may be one of those rare circumstances where the government has not explained why that is so. In fact, far from justifying the retrospective application of these new terrorism-related citizenship loss provisions, the government has said that it does not even know how many individuals are likely to become immediately subject to having their Australian citizenship cancelled if these provisions become law. Those matters were not even considered in the development of this legislation. That is an extraordinary and unconscionable failure of basic due diligence, for which the Minister for Home Affairs and his department should feel embarrassed. Of course, I know, from long experience now, they will not be.

As I noted before, Labor members of the intelligence and security committee have set out in detail our concerns with the citizenship cessation bill in an additional comment to the committee's report. The government should read that additional comment carefully. Labor members of the committee have also made a number of recommendations to improve the bill, but we have also said that the government's adoption of those recommendations is not a condition of Labor's support for the bill. That is not because we think those recommendations are unimportant. Rather, it is because the urgent repeal of sections 33AA and 35 is more important. And, while the ministerial decision-making model in the citizenship cessation bill is far from perfect, that model would at least provide the government with the flexibility to better manage the risk of potential adverse security outcomes.

The passing of laws, including this citizenship cessation bill, does not guarantee better security outcomes. Ultimately, it will be up to the minister to exercise the extraordinary powers in this bill responsibly and in the best interests of Australia. The Minister for Home Affairs will be personally and individually accountable when it comes to the use of these powers. It follows that if the powers are exercised in a manner that is contrary to Australia's national interest, including in a matter that puts the lives of Australians here or overseas at greater peril, responsibility will lie with the minister.

I'd like to end by noting that the recent decision by the High Court in Love and Thoms against the Commonwealth has arguably called into question whether the Commonwealth has the power to cancel a person's Australian citizenship, and the High Court is about to hear another case that is likely to provide more clarity on this question. On multiple occasions, Labor has asked to see the Solicitor-General's legal advice in respect of the constitutionality of the existing terrorism-related citizenship loss provisions. The government has repeatedly refused to provide Labor members of the intelligence committee with a copy of that advice, even under strict conditions of confidentiality and notwithstanding that those members frequently receive information of the most classified nature. Instead, the government has provided repeated assurances to the parliament and the Australian people that the terrorism-related citizenship loss provisions are on a strong constitutional footing. The worth of those assurances has been found wanting in the past and will ultimately be determined by the High Court.

Andrew Wallace (Fisher, Liberal Party) Share this | Link to this | Hansard source

The first duty of any government is ensuring the safety of its citizens. Whether it be protecting us from crime, combating foreign agents or cybercriminals who want to undermine our interests or defeating terrorists who want to destroy our way of life, defending our security must be our government's first priority.

This government has always understood that responsibility and has prosecuted it with commitment and relentless vigour. This is a government that has increased funding for law enforcement, intelligence and security agencies by $3 billion since 2013. This government is funding 100 more intelligence experts, more than 100 more tactical response and covert surveillance operators and a further 100 forensic specialists at the forefront of the fight against crime and terrorism. We have passed 18 tranches of national security legislation to strengthen our law enforcement and intelligence agencies and to give them the tools they need to deal with terrorists. We've given the ADF the power to target international terrorists with lethal force and we've given our law enforcement officers the power to arrest homegrown terrorists before their plots come to fruition. We've invested $45 million in counter-radicalisation programs to try to suppress these threats before they are fully developed; and, just last year, we committed an additional $513 million for the AFP to detect, deter and disrupt terror threats.

All of this has, sadly, been necessary because there are all too many people who are willing to benefit from our community's prosperity and protection while rejecting the mutual obligations to their fellow Australians that are fundamental to citizenship of this country. It is very difficult to believe some of the things that Australians have allegedly been capable of.

The first Australian to have his citizenship removed under the provisions that this bill, the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, addresses was Sydney man Khaled Sharrouf. Mr Sharrouf was involved in a terrorist plot in 2005 in which he helped gather guns, ammunition and equipment to make bombs for use in attacking his fellow Australians. Having served his sentence for that crime, he left, as early as 2013, to join ISIS and gained notoriety around the world for posting truly disturbing images of his nine-year-old son involved in the gruesome violence around Raqqa.

In total, around 230 Australians have travelled to Syria or Iraq to fight for and support the Islamic State terrorist group. They have done so despite that group's self-confessed involvement in burning alive innocent people; in throwing others from tall buildings, on the basis of their sexuality; and in systematic slavery and sexual abuse of women from ethnic minority groups. In doing so, many have directly fought against this country's closest allies and even risked the lives of dedicated servicemen and women of our ADF. There is no doubt that this represents a fundamental rejection of Australian values and a repudiation of everything that our community holds dear.

Perhaps worse, however, there are dozens of Australians who have been convicted of preparing or executing acts of terrorism on our own shores, which, in the words of convicted terrorist Abdul Nacer Benbrika, were designed to cause maximum damage to our way of life. There were 54 people in jail in Australia at the beginning of this year on such terrorism offences. These include individuals who were close personal connections of Osama bin Laden, who created detailed handbooks to teach others how to execute terrorist attacks or who were stockpiling explosives for use in our capital cities. In total, as of last year, 75 people have been convicted of terrorism offences in Australia and 30 more remain before the courts.

The reality is that to commit a crime of that nature is to utterly reject Australia and all it stands for. It is to spurn the society of your fellow Australians. In committing these crimes, these individuals have told us that they have no interest in being a contributing part of our community. I doubt any right-minded person in Australia would want to keep them here after such a violent and fundamental rejection of our very way of life. That is why the government introduced its 2015 amendments to the Australian Citizenship Act. These ensured that where the government could do so without breaching its obligations under international law, Australian citizenship would be stripped from those who have so fundamentally rejected their reciprocal obligations to fellow Australians. To date it has been successful, and the minister has previously stated that more than a dozen such individuals have had their citizenship revoked.

However, the threat remains. In total, 250 Australian passports have been cancelled or refused because of the applicant's connection to the conflicts in Syria and Iraq. In the middle of last year there were 80 further Australians in Syria and Iraq connected to those conflicts who had not returned but who may try to do so in the future. As I've mentioned, there are also around 50 Australians in custody in Australia who have been convicted of terrorism offences, and arrest warrants are outstanding for a further 39 who are currently overseas. Since 2014 our law enforcement agencies have disrupted 17 major terrorist plots. In short, today, the threat is as alive as ever. We must constantly update and improve the protections that are available to the government to keep Australians safe, to prevent future terrorist attacks and to meet the community's expectation that this government will not accept into our society those who would seek to harm our way of life from within.

The bill before the House today does just that. It provides the Minister for Home Affairs with discretion to revoke the citizenship of any dual national who has been part of a declared terrorist organisation overseas or who has been convicted of a terrorism offence and sentenced to three years imprisonment, rather than the six years currently in force. Madam Deputy Speaker Claydon, if you ask most Australians, there is no such thing as a minor terrorism offence. This bill will ensure that the minister can meet the community's expectations in dealing with any individual who plans acts of terrorism. Secondly, the bill expands the period of time from which an individual's actions can be taken into account when deciding whether to revoke their citizenship. Once again, for most ordinary Australians it does not matter in the least whether an individual planned a terrorist attack aimed at killing their fellow Australians in 2016 or 2006. What is important is that that individual has rejected their fellowship with other Australians and rejected our community's way of life. Once again, by allowing the minister to take terrorism offences and activities in an overseas terrorist organisation into account going all the way back to May 2003, this bill will allow the minister to respond appropriately to community expectations.

I'm certain that this Minister for Home Affairs will fully meet those expectations. The minister was a Queensland police officer for a decade, protecting not only Queenslanders through the drug and sex offender squads but all Australians through his service in the National Crime Authority. The minister saw and combated the worst of crime in our society and he understands what works. That knowledge and that experience have been manifest in his tireless and resolute work on national security to date. The minister has overseen the cancellations of visas for more than 5,000 dangerous criminals and kept our borders secure year after year. I know that he will use this discretion authority with firmness and discretion.

However, it is important that these safeguards are in place to ensure that this henceforth discretionary power is used appropriately not only by this minister but by all ministers for home affairs to come. To that end, the bill contains three such safeguards. First, under the bill, the minister must inform a person who has had their citizenship revoked either immediately or within five years where there is a national security reason to delay the provision of that information. The individual can then apply under the bill to the minister to request that their citizenship not be cancelled, and the Commonwealth must ensure that natural justice is afforded to them to make representations on their case. Second, judicial review will be available to individuals who have had their citizenship revoked. Third, the minister must report regularly to the parliament and to the Parliamentary Joint Committee on Intelligence and Security on how they have used these new discretionary powers.

All of these provisions and the others laid out in the bill were based on recommendations of the Independent National Security Legislation Monitor in its report into the Australian Citizenship Amendment (Allegiance to Australia) Act 2015, commissioned by this government. They will ensure the effectiveness of this regime and they will ensure that accountability, fairness and justice are preserved.

The coalition knows what it takes to keep Australians safe and, critically, we listen to the experts about the best ways to do this. With this bill we are demonstrating that yet again. We need to send an ongoing message to those who would threaten our community and reject our way of life. To fight overseas for terrorist groups against Australia's national interest or to plan or execute acts of terrorism that harm fellow citizens or the infrastructure on which we rely are actions that Australians will not tolerate. There is no such thing as a minor terrorism offence, and there is no expiry date on our nation's rightful rejection of those of our own who seek to harm Australia or Australians.

This bill gives the minister greater discretion to meet our community's expectations and to remove individuals from among us where they have shattered this common bond and opposed our shared values. Wherever the opportunity exists, we need to protect our citizens from those who would do us harm. However, equally the bill gives the minister discretion to take individual circumstances into account and to decide on a case-by-case basis whether citizenship should be revoked. It also ensures that there are provisions to allow the reinstatement of an individual's citizenship where it is in the national interest or following judicial review.

Australians expect all of us in this place to help keep them safe, and they expect us to treat them fairly and within the law. That is our duty, and it is a duty that the Liberal-National coalition resolutely and steadfastly embrace. In improving Australia's processes for withdrawing the citizenship of those who have rejected our way of life, this bill makes an important contribution to our ability to fulfil that duty, and I commend it to the House.

Pat Conroy (Shortland, Australian Labor Party, Shadow Minister for International Development and the Pacific) Share this | Link to this | Hansard source

I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) welcomes the move by the Government to fix the significant problems with two of the existing terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007, sections 33AA and 35;

(2) recognises that sections 33AA and 35 of the Australian Citizenship Act 2007 operate in an uncontrolled and uncertain manner, which may lead to unintended or unforeseen adverse security outcomes;

(3) further recognises that the bill would replace sections 33AA and 35 with a ministerial decision-making model of citizenship-cessation, which will allow the potential for adverse security outcomes to be better managed; and

(4) calls on the Government to:

  (a) ensure that the bill is on the strongest possible constitutional footing;

  (b) also ensure that the powers in the bill are used judiciously and in the best interests of Australia and Australians; and

  (c) implement the recommendations of Labor members of the Parliamentary Joint Committee on Intelligence and Security".

Labor acknowledges the critical importance of protecting Australia's national security and the Australian community from terrorism. We will always support appropriate measures that achieve these goals. The citizenship loss provisions introduced in 2015 were always intended to be part of a suite of measures to protect Australia and Australians from terrorism.

Labor notes the recommendations of the Independent National Security Legislation Monitor and the Parliamentary Joint Committee on Intelligence and Security that citizenship loss because of terrorist conduct may be necessary and proportionate in some cases. That is why Labor supported the 2015 legislation. But Labor has had concerns about the complexity and potential impact of this legislation. That is why PJCIS members issued a minority report in 2015 criticising the government's legislation and processes and recommending that provisions introduced by the 2015 act be referred immediately to the INSLM for review.

These concerns were borne out. In ASIO's submission to the PJCIS review of Australia's citizenship cessation laws in September of last year, ASIO explained that citizenship cessation should never be viewed as the only tool in the toolbox. ASIO explained that there may be occasions where the better security option will be that citizenship be retained. That is why removing the automatic citizenship loss provisions from our current legislation is so important. As the INSLM recommended in his 2019 inquiry, these provisions operate in an uncertain and uncontrolled manner and need to be repealed as a matter of urgency. As it stands, and as the Department of Home Affairs admitted in PJCIS hearings last year, under the current legislation there may be cases where an individual's Australian citizenship has ceased under the law but the government is not aware that this has occurred. This needs to change as a matter of urgency.

Labor notes that the government has acted on the INSLM's recommendations that the current operation-of-law model, where a dual national's Australian citizenship is automatically renounced through their actions, will be replaced by a ministerial decision model. This bill, while still far from perfect in the opposition's view, will fix this important issue and introduce a range of other needed provisions. We take our commitment to national security seriously, as we all should, and I commend the second reading amendment and the bill to the House.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

I thank the member for his contribution. Is the amendment seconded?

Anne Aly (Cowan, Australian Labor Party) Share this | Link to this | Hansard source

I second the amendment.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

I thank the member for Cowan. The original question was that this bill be now read a second time, and to this the honourable member for Shortland has moved, as an amendment, that all words after 'That' be omitted with a view to substituting other words. If it suits the House, I will state the question in the form that the words proposed to be omitted stand part of the question.

Anne Aly (Cowan, Australian Labor Party) Share this | Link to this | Hansard source

Before I get into the detail of this bill, the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, I'd like to take a little bit of time to speak to the substantive issue of this bill, which is the issue of citizenship. Like all the members of this House, I attend citizenship ceremonies and am often asked to preside over citizenship ceremonies welcoming new Australians to our Australian family. Some of them, of course, have been here years—I think I met somebody who had been here 55 years and had decided to finally take up citizenship—and others a lot less than that. But there is one part of the citizenship ceremony that never ceases to move me. It is an extraordinary part of that ceremony, and that is the pledge of allegiance, because, in Australia, we don't just pledge allegiance to the country. Our pledge is not just to Australia but to Australia and her people. That is an extraordinary thing—that, when somebody takes up citizenship, they are pledging their allegiance not just to this imagined idea of a nation and borders but to the human condition of shared responsibilities, shared values and common goals of the Australian people.

So the conferral and the revocation of citizenship should not be taken lightly. Citizenship is not just the conferral of a formal status, a piece of paper, but a pledge that recognises an act that carries with it rights and responsibilities—above all, the responsibility to fellow Australians, to their wellbeing and, indeed, to their safety and their security. When new Australians take that pledge, they are, as we all are, conferring upon themselves an act of taking responsibility for the safety and security of their fellow Australians.

That said, there can be no greater responsibility of government than to ensure and protect that safety and security, and that is why Labor is not opposing this particular citizenship cessation bill. This bill has been through the PJCIS, and Labor members of that committee welcomed the proposal in this bill to replace the existing operation of the law in citizenship loss provisions, known as sections 33AA and 35 of the Australian Citizenship Act 2007, with a new part which requires a ministerial decision-making model of citizenship cessation.

This is the primary reason why we are supporting this bill—because that part of the act that was first introduced in 2015 around the cessation of citizenship was, indeed, a flawed model, as has been pointed out by security agencies and experts along the way. Under those sections, sections 33AA and 35, any dual-national citizen—and I stress that it's dual-national citizens—would lose their Australian citizenship automatically if they engaged in terrorism related conduct that repudiates their allegiance to Australia and, I would add here, to her people, coming back to my opening remarks about the pledge of allegiance to Australia and her people. The Independent National Security Legislation Monitor, in his review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions contained in the Australian Citizenship Act 2007, made very clear that those provisions operate in an uncontrolled and uncertain manner. The implications in the counterterrorism space, particularly of having provisions that are not subject to rigorous and robust monitoring and are able to operate in such an uncontrolled manner, really undermine the effectiveness of our counterterrorism efforts. So it is very reasonable, but also extremely important, that these sections of the current act be repudiated and replaced with a new model of ministerial decision-making. In accordance with the monitor's recommendations, both of those sections were replaced, and we stress that those must be repealed urgently, which is why we lend our support to this bill.

The bill, however, is not without its faults, and these faults have been made clear today by the member for Isaacs, the shadow Attorney-General. They've also been made clear by Labor members of the PJCIS who issued additional comments on the bill. I stress again, as did the member for Isaacs, that we would not oppose the bill in its entirety because of the urgency of repealing sections 33AA and 35 and replacing them with the ministerial decision-making model.

Some of the other key recommendations in the monitor's report really have not been adopted by the government, including the proposal in relation to the availability of merits review. Labor is concerned that some of the other features of the bill have not been addressed adequately, which is why Labor members of the PJCIS issued some additional comments.

There's a history to this bill. This report marks the fourth time that the committee has issued a report in relation to the terrorism-related citizenship loss provisions of the Australian Citizenship Act of 2007. The first time that citizenship loss was considered was in 2015, at which point the committee issued a very detailed 218-page report with 27 recommendations, following the review of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, which first introduced section 33AA, section 35 and section 35A into the Australian Citizenship Act. Collectively, those sections would allow for the repudiation of citizenship.

The committee's 2015 report was fairly extensive, as I mentioned—218 pages and 27 recommendations. It considered a whole range of issues and concerns raised by submitters, including things like the meaning and value of Australian citizenship and the effectiveness of citizenship cessation in combating terrorism. That's something that I've spoken about before in this House, in relation to a number of other terrorism related provisions that have been introduced in this House since my time as the member for Cowan. It also considered Australia's international obligations—again, I think this is something that warrants further consideration—and whether the citizenship loss provisions were constitutional.

Despite also being raised by submitters in each of the committee's three subsequent inquiries, Labor members are disappointed that the committee's three subsequent reports, including this report, have failed to engage adequately with those same issues and concerns. I would reiterate that, to my mind, from the years that I spent studying and researching this issue, these are extremely important issues that we need to be considering in any counterterrorism response. The value of Australian citizenship, the effectiveness of citizenship cessation in combatting terrorism—in fact, the effectiveness of any legislation that's introduced in this House in combatting terrorism—our international obligations and maintaining a proportionate response, are extremely important, particularly in light of the fact that, sadly, we have not seen an end to terrorism and ISIS and the likelihood of other so-called theatres of jihad emerging in different parts of the world.

The rationale for terrorism-related citizenship loss provisions is looked at in two ways: a national security rationale and a symbolic rationale. These two rationales should not be seen in opposition to each other. Indeed, they shouldn't be seen as autonomous or discrete factors when we consider counterterrorism legislation and our response to counterterrorism. As ASIO pointed out in its submission to the inquiry on Australian citizenship loss:

In a globally interconnected world, the location of an individual offshore as a result of citizenship cessation will not eliminate any direct threat they pose to Australian or other interests overseas …

It will not prevent their reach back into Australia to inspire, encourage or direct onshore activities that are prejudicial to security—including onshore attacks.

That quote really does, to me, encapsulate the modern nature of terrorism, where it's not just about physical or hard security but also about the securitisation of values. That is why I say that the national security rationale and the symbolic rationale should not be considered as two very different rationales that we need to pursue, and we need to look at an integrated framework and an integrated response that protects physical things as well as the things that we value around Australian citizenship, including that pledge of allegiance to Australia and her people.

In closing, I point the House to the comments made by the shadow Attorney-General, the member for Isaacs, around the issues that the Labor members of the PJCIS raised and their concerns with this bill. But I also reiterate the importance and the urgency of passing this bill today, to ensure that the sections in the existing citizenship loss provisions that are ineffective and potentially counterproductive are removed and replaced by a ministerial decision-making model of citizenship cessation. I commend the Labor members of the PJCIS for their comments on this and indeed all members of the PJCIS for the work that they've done on this and the bipartisan nature with which national security in this country proceeds.

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

[by video link] I want to make a few brief comments on behalf of the Greens now. Some fuller comments will be made by our justice spokesperson, Senator McKim, when the bill reaches the Senate. We're dealing, in the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, with one of the most critical decisions that could ever be made about someone, which is to strip them of their citizenship. We're dealing with a situation where someone has Australian citizenship and has citizenship of another country and the government wants to strip that person of their Australian citizenship. Taking someone's citizenship away when they have got it either because they were born here or they've taken the step to get Australian citizenship is one of the most fundamental decisions that a government can make, because you basically lose all your rights with respect to the country that you're a citizen of, including, fundamentally, the right to even live here. So we're dealing with a situation where a government can make a decision—in this instance, under this bill, through the stroke of a pen—that renders someone potentially not stateless, because they have to have citizenship of another country, but unable to be in Australia and enjoy all the rights and privileges of an Australian citizen.

The government's approach, prior to this bill, has been to say that will just be automatic on the occurrence of certain events. You get no quibble from us. I think everyone would agree that many of the events that are covered under this bill are heinous events and attacks on the Australian people. The government's approach, instead of saying, 'If someone has committed a crime, you bring them before a court, you try them and, if they've done something wrong, you lock them up and they pay the penalty'—which is the way the rule of law works—is to say, 'If they've done these things then you just strip them of their citizenship, and it happens automatically.' That's been the government's approach up till now. Not surprisingly, a lot of people have questioned whether that is the right approach from the perspective of combating terrorism and whether it is even constitutional. The normal rule-of-law process is that you get tried in a court: you get brought there, you get convicted if you've done something wrong and you get sentenced. If instead the government is able to simply say, 'You lose your citizenship,' serious questions are raised about what that means for the rule of law, what that means for our fight against terrorism, whether it's even effective, and whether it is even a constitutional approach. In a sense, the shift that has been made in principle to say, 'Let's move away from something being an automatic decision to something that is subject to some form of potentially challengeable decision,' might have something going for it. It makes a bad situation slightly better. Indeed, it's something the Independent National Security Legislation Monitor has called for. It has said there are real problems with this approach of simply saying we are going to junk the rule of law and instead have legislation that automatically strips someone of their citizenship.

The problem is that this bill doesn't just simply move away from that automatic approach, if you want to call it that, to one where the minister has to make the decision; it does other things as well that aren't picking up the independent recommendations made by the national security monitor, and that is cause for great concern. It gives the minister enormous discretionary power and essentially lowers the bar of the test that the minister has to apply. But then, when the minister makes the decisions, there are restrictions on the procedural safeguards that you might expect to be there—for example, judicial review is diminished and merits review is removed. Those procedural safeguards that you might want when a minister is making such a significant decision are not there in the way that they should be and are not there in the way that has been recommended. You also end up, therefore, in a situation where decisions could be made by a minister who has enormous power that are not only not challengeable but, contrary to one of the problems the bill was designed to address, could potentially render someone stateless. What happens if the other country to which the person has a dual nationality also says that they are not interested in having them back? You could potentially end up in a situation where, instead of having someone who has done something wrong in prison, where we know who and where they are, they could say Australia's shutting the door to them and other countries are shutting the doors to them, and they could potentially become rogue agents on the world stage.

Fundamentally, giving this minister—the minister we have at the moment—significant power is also of grave concern. In order to diminish the risk of terrorist attacks against Australia by Australian citizens and to minimise the risk that people who are Australian citizens might want to start doing things that cause harm against the Australian people, one of the best things that we can do is make sure that Australia is a place where everyone feels that they have a place. In other words, address risks of social exclusion from the beginning. A lot of people will say that one of the steps—of course, it's a multifaceted problem; there's no silver bullet here—to address the risk of radicalisation is to address issues of inclusion from the beginning and inclusion in all its forms.

Let us not forget, though, that the very same minister who is going to get enormous powers under this legislation—including, namely, the power to determine whether someone is a citizen—is the same minister who is quite happy to whip up hatred against individual groups of people based on their ethnicity in order to try to win votes. I remember Minister Dutton saying very, very clearly, that apparently people in Melbourne, where I am from, were afraid to go out to dinner because we were worried about African gangs, in his words. What rubbish! That was simply not true. What I can say is the case is that when Minister Dutton goes and says things like that, when we hear these terrible statements that are made using race to try to win votes—the minister is worried about losing votes to One Nation, so he tries to use race and racism in order to win votes—that increases the risk of social exclusion. That does not make everyone in Australia feel that Australia is a place where they have got a place. So, rather than get up with chest-thumping rhetoric about how we need to give the minister more power to strip people of their citizenship, the minister should first have a look at his own words and what he might be doing to increase dislocation and social exclusion in Australia, to foment discord just in order to win a few votes and to use race to try and win votes.

If the government had taken a more consistent approach to making Australia a more inclusive place and had been prepared to stand up to the racism that we see peddled across society, then the government might be able to come to this chamber with a bit more seriousness and with cleaner hands and say, 'We need to take steps to deal with people who commit heinous acts against this country.' But the government do not come to this debate with clean hands; the government come to this debate with a history of using race to try and win votes. So the government come to this debate, on the one hand, saying that they are very concerned about Australia's safety and, on the other hand, doing things that they should not be doing that increase the risk that people will feel Australia is a place to attack rather than a place to call home. The government needs to go back to square one in thinking about its approach to ensuring social cohesion in this country, and the government needs to ditch the vile racism of trying to drive wedges in the Australian population.

On the bill itself, as I mentioned, further comments will be made when this bill reaches the Senate. It is very, very disappointing that the bill looks likely to pass despite the fact that the Independent National Security Legislation Monitor's recommendations are not going to be picked up. As I've said before, we may end up in a situation where the provisions on the automatic cessation of citizenship—which is an important issue with respect to the rule of law—are removed from the act but where a minister who does not have a good record for standing up for values of equality in this country will now have a significant amount of power, without the capacity to be held accountable. Those are recommendations that were made, and those are recommendations that should be implemented if we are going to give this minister such significant powers.

Chris Hayes (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

I, too, would like to make a contribution on the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019. I make it clear from the outset that Labor will be supporting the passage of the bill, but I do wish those opposite would have regard to the amendment that has been moved by the opposition in relation to this matter. We welcome the fact that the bill picks up many of the recommendations of the Independent National Security Legislation Monitor. I say 'picks up many' because it doesn't pick up all those recommendations. Some of those recommendations have also been supported by the Parliamentary Joint Committee on Intelligence and Security. I will come back to those.

I want to emphasise the fact that Labor will always work with those opposite when it comes to issues of national security and safeguarding the nation and its people. These are things that should be beyond politics and certainly beyond the sabre rattling that goes on when we talk about the issue of immigration and refugees. This debate must be contained to addressing issues of national threat, particularly as they relate to terrorism. Having said that, the simple fact is that, unfortunately, the Australian terrorism threat level still remains at 'probable'. This means that there is credible intelligence from the security agencies to indicate that individuals or groups continue to have an intent and a capability to conduct terrorist attacks against our nation.

In this environment, it's important that we strike the right balance to ensure that our laws keep Australia as a nation, and its people, safe from the threat of terrorism. The bill amends the current terrorism-related citizenship loss provisions for dual citizenship in the Australian Citizenship Act 2007, to which amendments were passed in 2015. I might add that those amendments were passed with bipartisan support. The citizenship loss provisions were always intended to be part of a suite of measures to protect the community from terrorism. The advice of the Independent National Security Legislation Monitor and the PJCIS was that citizenship loss because of terrorism may be necessary and proportional, in some cases.

But, in effect, the bill changes the way in which citizenship is lost, by moving from the automatic loss-of-citizenship model to a ministerial decision-making model. This addresses issues where it may be the case that an individual Australian citizen has ceased to be an Australian citizen under law but where the government may not even be aware of it. Labor has previously and consistently criticised the automatic loss model and advocated a decision-making model where the decision is to be made by the minister.

The Independent National Security Legislation Monitor recommended in 2019 that automatic loss in the current model should be repealed urgently and replaced with a decision-making model. It determined these measures to be, effectively, uncontrolled and uncertain. It really should fall to the minister to make a determination, and the minister's decision-making process could be subject to judicial review. It's also a measure which is welcomed by the Law Council of Australia, which noted the INSLM's comment that automatic loss of citizenship by conduct is 'not a necessary or proportionate response to the threat of terrorism'. Similarly, ASIO has emphasised that the blanket, automatic cessation of citizenship measures introduced in 2015 may be counterproductive. They said:

There may be occasions where the better security outcome would be that citizenship is retained, despite a person meeting the legislative criteria for citizenship cessation—

because, they said—

In some instances, citizenship cessation will curtail a range of threat mitigation capabilities available to Australian authorities.

Essentially, what ASIO is saying there is that there could be various options which are curtailed if this is just a blanket action taken simply because of an individual's conduct or a group's activity. There may be other things in play which need to be considered, and it's appropriate for those to be considered by the minister responsible.

The bill also introduces a range of other changes, including amending the sentencing term threshold, from six to three years, for which a person convicted of a specific terrorism offence may be considered for citizenship cessation. This would lessen the period for the new sentencing threshold to three years for conduct engaged in on or after 29 May 2003. Another change is to the stateless test so that the minister is not permitted to make a citizenship cessation if the minister is satisfied that the person would then effectively become stateless. It also amends the provisions for giving notice of a citizenship cessation, including the provision where the determination to withhold notice not being revoked within five years is automatically taken as being revoked. And there is a new process for revocation of citizenship cessation determinations by which the person may apply to have the determination revoked and where they will ultimately have the ability to review the minister's decision in a court, through judicial review. These are significant changes in the bill which is before the House.

While we welcome the ministerial decision-making model for the citizenship cessation, in this bill the government has still not addressed a number of key issues, including some of the recommendations by the Independent National Security Legislation Monitor. These include the retrospective application of provisions for the relevant convictions and the reduction of the sentencing threshold for cessation based on conviction for certain offences. Other issues are also noted, including the lack of recourse to a merits based review under the bill, with judicial review the only option under this bill that would be available in relation to the minister's decision. That means that this will be an inadequate oversight of the minister's power, we would suggest. There are also other issues posed by the changes in respect of the statelessness test under the bill, increasing the risk of a person becoming stateless. The measures will also allow a minister to make the citizenship cessation determination if reasonable but mistaken matters are brought before the minister. Therefore, other than simply waiting for final judicial review, there is no prospect of the minister having the option of conducting a merits based review of the decision.

As I said, we support the passage of this bill. We think the government has introduced a number of provisions which will ensure that the provisions for cessation of citizenship for dual citizens occurring due to issues of terrorism have been fine-tuned to ensure that the minister is the decision-maker, as opposed to the more legalistic situation where the actions would be the sole determinant of whether a citizenship would be revoked. We note the fact that the minister's decision would be subject to solely judicial review and presumably through the Administrative Appeals Tribunal. These are reasonable matters, and it is reasonable that the decision be made by the minister responsible, as opposed to simply relying on automatic revocation of citizenship. I support the bill. I also support the amendment which accompanies this bill. I would request those opposite to have regard to that amendment.

Peter Dutton (Dickson, Liberal Party, Minister for Home Affairs) Share this | Link to this | Hansard source

I want to say thank you to all of the members who have contributed to the debate on the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019. The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 continues the government's efforts to address the very real threat of terrorism and delivers on our commitment to keep the Australian community safe.

The bill's central reform is the replacement of the current operation-of-law provision for citizenship cessation with a ministerial decision-making arrangement. This is a key recommendation of the Independent National Security Legislation Monitor following his review of the current citizenship loss provisions. 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 laws of other countries …

In recognising the importance of laws to cease a person's citizenship, the INSLM recommended that sections 33AA and 35 be replaced with a ministerial decision-making model. Under this model, the Minister for Home Affairs can determine that a person ceases to be an Australian citizen 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.

Importantly, the bill provides that the minister cannot seize a person's citizenship if it would result in the person not being a citizen or national of any other country. The provisions of the bill will apply to dual citizens who engage in specified terrorism related conduct, who fight for or are in service of a specified terrorist organisation overseas, or who have been convicted of specified terrorism related offences and sentenced to a period or periods of imprisonment totalling at least three years.

I would like to say thank you again to the Parliamentary Joint Committee on Intelligence and Security for its work on this bill through its inquiry and recommendations. The committee's advisory report on the bill made three substantive recommendations. Specifically, the committee recommended that the Intelligence Services Act 2001 be amended to require the committee to commence a further review of the provisions in this bill in three years time. The committee also recommended that the explanatory memorandum clarify that the minister must be reasonably satisfied of the matters proposed in section 36B(1) of the bill—that is, the minister must be satisfied that the person is engaged in terrorism related conduct, which is a repudiation of their allegiance to Australia, and that it would be contrary to the public interest for the person to remain an Australian citizen. The committee also recommended that the EM clarify matters which must be taken into account in making or revoking citizenship cessation determinations. The government supports the committee's recommendations, and I'll shortly be moving an amendment to implement the committee's recommendation for a further review. I table an addendum to the explanatory memorandum, which provides additional clarifying material in response to the first and second recommendations of the PJCIS as well as advice of the Senate Standing Committee for the Scrutiny of Bills.

The amendments in the bill build on, adapt and modernise the terrorism-related citizenship cessation provisions. They strengthen Australia's ability to respond to increasingly complex national security challenges. The amendments, further, establish citizenship cessation to be considered alongside other measures including control orders, prosecution, temporary exclusion orders, the Commonwealth high-risk terrorist offenders scheme and countering violent extremism programs. That can be applied appropriately and proportionately to keep our communities safe.

The overarching purpose of the bill remains the same as when citizenship cessation provisions for terrorism conduct were first passed into law 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 is not created by the Australian Citizenship Act 2007 but it is recognised by it, and this bill reinforces that obligation. The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 continues the Morrison government's work to protect Australians and our way of life and to keep our communities safe. The bill deserves the support of all members and I commend the bill to the House.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Shortland has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. The immediate question is that the words proposed to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.