Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Hansard source

I'll try to deal with the various questions that have been asked so far. I might start with Senator Hanson's, given they are the most recent ones. Senator Hanson, I know that you're a big fan of Mr Dutton and one of his biggest cheerleaders, always jumping to his defence, but I make no apologies for pointing out the facts of Mr Dutton's involvement in both of the matters we've been dealing with this week, and the facts stand for themselves.

One of your questions was: who has the power to strip someone of their citizenship under the law as it currently stands? The legislation that we're seeking to amend gives the power to the minister to cease someone's citizenship, provided certain conditions are met. The problem is that the High Court has just found that it is unconstitutional for a minister to have that power and that the legislation that was being used is unconstitutional or, put another way, there's no legal power for the minister to do what the legislation allows the minister to do. So, I guess you could say that at the moment under the law it's the minister that has the power and I guess you could say that at the moment under the law no-one has the power because those laws have been found to be unconstitutional. That is exactly what we're trying to fix here by amending the legislation so that the minister has the power to apply to a court to have someone's citizenship stripped from them as part of the sentencing of them when they commit particular offences like treason and like advocating for mutiny—those types of things that reject Australia's values and amount to not pledging allegiance to Australia.

I know you didn't ask the question, but you did raise the point about statelessness. It is correct that, under both this legislation that we're seeking to put in place and, I think, the existing legislation, it was not and it is not possible to strip someone of Australian citizenship if that would leave them stateless, which means that they don't have citizenship of another country. The reason for that is that it's a requirement of international law. Australia is a signatory to at least one treaty, if not more, with other countries that say, put simply, that we will not take actions to make someone stateless. So if we were to apply this law to people who would be then rendered stateless then we would be in breach of those international agreements. I can only presume that's the reason that Mr Dutton, when he was in charge, didn't apply these laws to people who would otherwise be rendered stateless as well.

I don't think there were any questions from the Greens. There was a 10-minute statement of opinion.

Senator Cash asked a couple of questions, and I'll get to the answers to those in a moment. Before I get there, I know Senator Cash is trying to make a valiant effort to continue putting the blame for this mess of unconstitutionality at the feet of the Labor Party, when we all know that it actually arises from laws that Mr Dutton and the coalition brought in that were unconstitutional. She's tried to say that Mr Dreyfus, as the then shadow Attorney-General, was a big fan of these laws. I'd encourage Senator Cash to look at what Mr Dreyfus actually said at the time.

In 2018 Mr Dreyfus, as the then shadow Attorney-General, said in relation to the laws that were passed and were found to be unconstitutional:

Peter Dutton and Scott Morrison are trying to rush legislation through the parliament that could result in terrorists taking the Australian government to the High Court and winning.

I think Mr Dreyfus was proven right. He went on to say:

The Committee heard expert evidence that the proposed legislation was likely unconstitutional, would not survive a High Court challenge, and risked completely destroying the Government's ability to revoke the citizenship of any terrorist.

Again, Mr Dreyfus, as the shadow Attorney-General, was right.

It wasn't just Mr Dreyfus who heard this expert evidence. It was the entire Parliamentary Joint Committee on Intelligence and Security that heard that expert evidence that the very legislation that Mr Dutton brought in was likely unconstitutional.

Well, do you know what? It was unconstitutional. The committee heard that it wouldn't survive a High Court challenge. Guess what? It didn't survive a High Court challenge. The committee heard that it risked completely destroying the government's ability to revoke the citizenship of any terrorist. Guess what? He was right again. If only Mr Dutton had bothered to listen to the warnings that were issued at the time by the shadow Attorney-General.

But, as I say, it wasn't just Mr Dreyfus. In relation to the laws that were passed and which the High Court struck down, Labor members of the Parliamentary Joint Committee on Intelligence and Security said the following:

The debate about whether the citizenship cessation provisions are constitutional obviously can not be resolved by this Committee. Labor members note that the Government has provided assurances to the Committee, and the Australian people, that the existing citizenship cessation provisions are on a strong constitutional footing. The worth of those assurances will ultimately be determined by the High Court.

As we all know, the worth of those assurances from the former government has recently been determined by the High Court, and the High Court found that those assurances by Mr Dutton and his colleagues were absolutely worthless. Again, Labor members of the committee put the government on notice at the time and raised concerns about the constitutionality. Obviously, in opposition, we didn't have the benefit of the government's legal advice, and we relied on those assurances. They proved to be futile, and that's why we are in this mess, and that's why we need to fix this legislation today.

On the questions that Senator Cash asked, again, I will take on notice the date that drafting of this legislation commenced. Senator Cash also asked why the legislation wasn't ready for the Alexander decision. Of course, Mr Dutton could, at any time, have acted to ensure that his legislation was actually constitutional. But there's a distinction between the Alexander case and the Benbrika case. They both did involve applications around the cessation of citizenship, but the facts of the Alexander decision involved a minister ceasing a person's citizenship on the basis of that person's conduct. In the Alexander decision, it was found to be unconstitutional for the minister to have that power. The Benbrika case was different, because it involved the power of a minister to cease someone's citizenship after a court had convicted and sentenced that person. That was also found to be unconstitutional. Both models were Mr Dutton's models. Both were found to be unconstitutional and both are what we are now fixing.