Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

Thank you very much. So judgement is reserved in that matter. There's only a very short time left before we'll hit the hard marker. So I do just want to take an opportunity to address the amendments that the coalition will be moving, or that I will be moving on behalf of the coalition. The coalition's position is very clear. There are some types of offences that are so egregious, so antithetical to Australian values, that those who engage in them demonstrate a rejection of Australia and everything it stands for. What the coalition is saying, by the amendments that we are moving, is that those who go overseas to murder Australians are rejecting Australia. What the coalition is saying is that those who go overseas to rape children or engage in slavery or torture should, in appropriate cases, be liable to have their citizenship stripped.

So let's have a look at what our amendments are proposing. Under the coalition amendment, a court could decide to remove your citizenship if you go overseas and train with a foreign military and import weapons into Australia and then advocate that they be used for terrorism or genocide. The coalition is saying that proven terrorists, like Mr Benbrika, who seek to evade monitoring that is put in place specifically to keep the community safe should not be safe from consequences. We are saying that, if you are one of those abhorrent Australians, like we have seen in the past, who try to procure the abuse of children in the Philippines or glorify the most depraved forms of sexual abuse of children by sharing it over the Internet, you should not be on firm ground.

We ought to be able to ask the court to say: 'Actually, you're not an Australian. You have repudiated the values of Australians.' Unfortunately, that is not the position that the Albanese Labor government have put forward in this bill. Labor's bill, in effect, says that if you try to interfere in an Australian election you should be liable to having your citizenship removed by a court. I actually agree with that; I say it's fair enough. But, if you go overseas to murder Australians, they say that you should not, that's it's okay. I disagree with that. If you are a terrorist, the minister should be able to ask the court to remove your citizenship. Again, I agree with that. The coalition agrees with that. But if you stay here on Australian soil and advocate for others to do it for you, for some reason the Australian Labor Party says that's okay; you should be safe. It is baffling; it is inexplicable; it is incomprehensible. I would think Australians don't want paedophiles, murderers, torturers and agitators for genocide to remain in Australia—nor should they—but the Australian Labor Party, under Mr Albanese, seems to have a problem with that.

We are not saying that every case we are putting forward will result in citizenship removal. It would be a gross misunderstanding and a gross misstatement to say that. What we are saying is that the minister should merely have an extra tool in his shed, an extra weapon in the armoury. We accept that in some cases the conduct in question, even though it might be criminal, will not be sufficient to amount to a repudiation of Australia. If citizenship were removed in those cases, the removal, in light of the High Court's ruling in the Benbrika case, might well be beyond power because it is outside the scope of what is permissible consistent with chapter 3 of the Constitution.

There is a double lock to ensure constitutionality. Before the operation of our amendment—and, indeed, the government's own legislation could give rise to constitutional concern—the minister would need to front the court to apply for citizenship stripping. I would hope, for the sake of those opposite, that before doing so the minister would seek legal advice. The first part of the double lock, before the operation of our amendment—and, indeed, the government's own legislation, which could give rise to a constitutional concern—is that the minister needs to front court to apply for citizenship stripping. The second part of the double lock is that the court actually needs to remove the person's citizenship. Until you go through both of these gateways, the constitutional issue does not arise. It is not necessary to decide, and, consistent with longstanding practice of the High Court and other courts in constitutional matters, we would expect that the court would not find it necessary to determine a constitutional question unless it were essential to resolving the dispute in question. That is the double lock. It operates equally in respect of the offences in the government's bill and our own offences, and that is also why we describe our amendment as simply another tool in the shed, another weapon in the armoury, for the minister to use in appropriate cases, based on, as I said, legal advice. That's because we'd rather not be trying to legislate retrospectively when the so-called appropriate case does come up, when we find that abhorrent case—the case where someone has committed offences on our list in a manner that is so egregious that there is no question as to their citizenship being removed. They have repudiated Australia; they have repudiated our great values.

Let's be honest: we actually hope the offences on our list are never used. I hope people don't engage in this behaviour. We hope these measures are never relied on, because we don't want Australians to go overseas and murder other Australians, rape children or engage in torture and other forms of depravity.

This is conduct that exceeds all the normal bounds of human behaviour, and it is precisely the conduct captured on our list. When it comes to our expanded list, we'd rather have it and not need it than need it and not have it. As I said, you have the double-lock to ensure constitutionality, and that applies to both our amendment and, indeed, the government's own legislation. Before either operates in a way that could give rise to the constitutional concern, the minister, in the first place, needs to front the court to apply for citizenship stripping. You would certainly hope, for the sake of those opposite, that before doing so the minister would seek that legal advice. The second part is that the court actually needs to remove the person's citizenship. Until you go through both of these gateways, the constitutional issue does not arise.

Very briefly, regarding judicial review, Minister: is the minister's decision to apply for citizenship revocation judicially reviewable? If so, doesn't that mean there's potential to undermine this bill because you need to apply for citizenship revocation as part of the sentencing process? This is a very narrow window, but a person who is going through a criminal trial could simply launch an administrative review action, challenging the minister's decision to apply for citizenship revocation and tying the minister in litigation for, potentially, months. How will you address the problem of this citizenship-stripping model being undermined by a collateral administrative law attack? How will you ensure administrative law challenges can't be used to force you to miss your window and lose the ability to strip citizenship altogether?