Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Hansard source

Senators will be aware that this bill is one of the most controversial items of legislation to have arisen from the current concerns about global terrorism and the potential involvement of Australians in it, and that is as it should be. Citizenship is a cherished status which is about much more than the possession of a set of legal rights and obligations. Citizenship is what defines us. Our citizenship is at its core a statement of our identity, of our sense of belonging to a place and to other people who share that place with us.

Citizenship is not something that should be surrendered lightly and no-one should lightly be deprived of their citizenship. This bill contains many provisions intended to ensure that people cannot easily forfeit their citizenship and the right to call themselves Australian. This is important, particularly given what we have just heard: in respect of this bill, it is in a form, which has been introduced to the Senate today, which is vastly different from the original bill introduced in the other place in June. The bill we are now presented with was substantially amended in response to the recommendations of the Joint Committee on Intelligence and Security. It is because of those changes, which greatly constrained the power of the Minister for Immigration and Border Protection to deprive a person of citizenship, that Labor is willing to support the bill. We would not have supported a bill that allowed the loss of citizenship on trivial grounds, as this legislation certainly would have done in its original form. We would not have supported a bill that effectively created two classes of citizens and we would not have supported a bill whose provisions were open to manipulation by a government intent on exploiting fear in times of crisis. We are satisfied that those dangers have been considerably reduced by the diligent work of the joint committee and I acknowledge its contribution. There remains, however, a considerable cause of unease about this bill, which unfortunately the government has done very little to allay.

Many eminent constitutional lawyers who have examined the bill and in submissions to the joint committee and in the media commentary are of the opinion that it will be declared unconstitutional in any test case brought before the High Court. They argue even the amended form of the bill infringes the principles of the separation of powers by granting to the executive government prerogatives that properly belong to the courts. The government has insisted that its own legal advice from the Solicitor-General is that these objections are unfounded. It is curious then that the government refuses to release the Solicitor-General's advice except with respect to one minor matter that resulted in a late amendment to the bill. I have a lot more to say in this matter in regard to the changes to the bill.

What I am talking about is a more fundamental question. If the government is confident that its legislation will stand, what possible justification could there be for withholding its advice? We have been left with no alternative but to take the government's assurance at face value. This is the government's legislation. This is the government's legislation and we have no option but to accept the government's assurance at face value that this will withstand a challenge. A consequence of that is, if the legislation is overturned by the High Court, the government must accept responsibility. I warn the government that challenges to the legislation are almost inevitable. The loss of Australian citizenship and of all the rights and protections that flow from it is an extraordinary sanction. No-one who believes that they have been unfairly or arbitrarily deprived of their citizenship is likely to let the matter rest.

The fundamental principle of this bill—that there are circumstances in which someone might deservedly lose Australian citizenship—is not, of course, a novelty.    That principle has been enshrined in Australian law since the inception of the Citizenship Act in 1948. It has always been a provision of the act that dual nationals who fight in the service of enemy states thereby forfeit their Australian citizenship, but the world has changed considerably since 1948. Wars now are rarely declared and, more importantly, non-state actors such as Al Qaeda and IS have emerged as belligerents. It is no longer only by fighting on behalf of an enemy nation that someone can act in ways inconsistent with allegiance to Australia.    It is appropriate that these changed circumstances should be reflected in a change in Australian law and that has consistently been Labor's position.

The need for change was never a matter of contention. What was in contention was the scope of the original bill. It potentially affected millions of Australians who were born overseas or are eligible to hold a second passport. And it did so without respect for their rights. The bill conjured up a nightmare vision in which people would notionally exclude themselves from the roll of Australian citizenry, with the minister acting as a kind of combined judge and jury to register their misdeeds. He or she would simply notify them that they had forfeited their citizenship for conduct that might be as trivial as damaging Commonwealth property or it might be that they posted a comment on social media that was constructed to incite violence. A more serious matter is that the reality was the intent of the comment and that the offence was proven in court. But it is deeply disturbing that this might have been considered grounds for the automatic revocation of citizenship. The amended bill will affect very few people—probably dozens but not the millions, the original intent.

The Australians who are most likely to be affected by this bill are those who fight for and otherwise directly contribute to the support of organisations such as IS. The amended bill applies only to perpetrators of serious terrorist offences or the most serious national security offences. The bill does not only provide for removal of citizenship after a conviction for a specific criminal offence and, unlike the original bill, the amended bill only allows removal of citizenship without conviction in the case of people who are outside Australia. In such circumstances, insisting on a trial and conviction would be impractical and most of those who would be deprived of their citizenship because of this bill will already have left Australia's jurisdiction.

I notice the context in which the government, on the Solicitor-General's advice, inserted a late amendment to the bill

Before that amendment, the bill required the minister to consider whether to use his or her discretion to exempt a person from the automatic renunciation of citizenship that follows from engaging in terrorist activity outside of Australia. The Solicitor-General advised that this provision made the minister the 'effective decision-maker', thus violating the self-executing character of the scheme.

Labor does not regard this late amendment as a reason for altering our support for the bill. The essential change had already been made. The original bill allowed for the removal of citizenship when a person was in Australia and available for prosecution. That is no longer so. It is important that such people be brought before a court before any penalty is imposed—especially a penalty as severe as revoking citizenship. Our citizenship as Australians means that we live in a country that upholds the rule of law as a fundamental value. The rule of law and the protection of judicial processes should not be denied to citizens in normal circumstances, even when the matter is as serious as their allegiance to Australia. On the contrary, the more serious the accusation the more important it is that judicial protections be upheld.

When the bill was first mooted by the government it caused considerable apprehension in migrant communities. As I have noted, the scope of the original bill potentially affected millions, because so many Australians either are dual citizens or could become dual citizens. I remind senators why it is only dual citizens who can be affected by this bill. The UN Universal Declaration of Human Rights, to which Australia was a founding signatory and which was promulgated in the same year as the Australian Citizenship Act, guarantees everyone the right to a nationality. To be consistent with our international obligations, we cannot enact laws that would leave someone stateless. That fact, combined with the bizarre array of possible triggers for the revocation of citizenship in the original bill, raised the threat that a consequence would be the creation of two classes of Australians: real Australians, who hold no other citizenship, and others who hold dual nationality and could be deprived of their Australian identity.

There was an insidious message in the original bill. It implied that some people were not quite as Australian as others, because their legal bond with the nation could be severed. It is astonishing that the government could have allowed such a proposition to arise, even unwittingly. Perhaps it was not quite so unwitting. The Abbott-Turnbull government would not be the first in history to have seen divisions in the nation as a great political opportunity. But, however common the temptation to exploit such divisions might be—and however readily available they are for governments to grab hold of—succumbing to that temptation is extraordinarily dangerous. It risks provoking greater and more damaging divisions. At a time when the world is preoccupied with the threat of Islamist-inspired terrorism, nothing could have been more divisive than treating citizenship in the way that the original bill did.

As the member for Greenway pointed out during the debate on this bill in the other place, the public discussion paper the government circulated when the bill was first introduced repeatedly spoke of citizenship as a privilege. Of course, in some senses this is true. I have described citizenship as a cherished status—as a bond that unites us. But 'privilege' also means something that a person does not possess by right, because it can be conferred and taken away. We are on a very slippery slope if we routinely start talking about citizenship in this way, if we use language that suggests people might be deprived of their shared identity with other Australians for anything less than the most serious offences that sever allegiance itself.

I emphasise this point because we should recognise that the work that had to be done to produce the amended form of this bill gives us another opportunity—an opportunity to reflect more deeply about what it is that unites us as Australians. If we truly want people to cherish their citizenship, we should never countenance the prospect of an Australia in which one group of citizens is allowed to feel that they are only part of the nation on sufferance. We should all recognise that the first form of the bill came very close to sending that implied message to a great many people. This nation has fortunately escaped that prospect. Let us resolve never to go down that path again.

Debate Interrupted.