Richard Colbeck (Tasmania, Liberal Party, Minister for Tourism and International Education) Share this | Link to this | Hansard source

I move:

That this bill now be read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

AUSTRALIAN CITIZENSHIP AMENDMENT (ALLEGIANCE TO AUSTRALIA) BILL 2015

I move that this Bill be now read a second time.

The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 implements the commitment made by the Prime Minister, myself and the Australian Government to address the challenges posed by dual citizens who betray Australia by participating in serious terrorism-related activities. This Bill emphasises the central importance of allegiance to Australia in the concept of citizenship.

Australian citizenship is something to be treasured. It is a common bond which unites us all, whether we were born here or chose to make Australia our home. Australian citizenship involves a commitment to this country, its people and its democratic rights and privileges. Australian citizenship should not be taken lightly.

We face a heightened and complex security environment. Regrettably, some of the most pressing threats to the security of the nation and the safety of the Australian community come from citizens engaged in terrorism. It is now appropriate to modernise provisions concerning loss of citizenship to respond to current terrorist threats. The world has changed so our laws should change accordingly.

To ensure clarity of these necessary changes, a purpose clause has been inserted into the Bill. It states that by these amendments, the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the safety and shared values of the Australian community, demonstrate that they have severed that bond and renounced their allegiance to Australia. The intention of the changes is the protection of the community and the upholding of its values, rather than punishing people for terrorist or hostile acts. The purpose clause uses concepts from the existing Preamble in the Citizenship Act.

Allegiance is a duty owed by all citizens to their sovereign or state. A citizen's duty of allegiance to Australia is not created by the Citizenship Act, but is recognised by it.

The concept of allegiance is central to the constitutional term "alien" and to this Bill's reliance upon the aliens power in the Constitution. The High Court has found that an alien is a person who does not owe allegiance to Australia1. By acting in a manner contrary to their allegiance, the person has chosen to step outside of the formal Australian community.

The Bill proposes three mechanisms for automatic loss of citizenship:

First, a new provision where a person renounces their citizenship if they act inconsistently with their allegiance to Australia by engaging in certain terrorist conduct.

Second, an extension to the current loss of citizenship provision for a person fighting in the armed forces of the country at war with Australia. The extension provides that a person ceases to be a citizen if they fight for, or are in the service of, a specified terrorist organisation overseas.

Third, a new loss of citizenship provision if the person has been convicted of a specified terrorism offence by an Australian court.

In accordance with Australia's international law obligations, no one will lose citizenship under any of these provisions unless they are a national of another country.

I now turn to examine the Bill in more detail.

New section 33AA is an extension of the current provision which allows a person to renounce their citizenship. The new section provides that a person who is a national or citizen of a country other than Australia renounces their Australian citizenship if they act inconsistently with their allegiance to Australia by engaging in specified conduct.

The relevant conduct is:

engaging in international terrorist activities using explosive or lethal devices;

engaging in a terrorist act;

providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act;

directing the activities of a terrorist organisation;

recruiting for a terrorist organisation;

financing terrorism;

financing a terrorist; and

engaging in foreign incursions and recruitment.

Automatic loss of citizenship will be triggered whether the conduct takes place inside or outside Australia.

The loss of citizenship will be immediate upon the person engaging in the relevant conduct. The Minister must give notice that a person has ceased to be an Australian citizen once the Minister becomes aware of the person's conduct giving rise to that outcome, but this notice does not affect when the loss of citizenship takes place. The Bill makes clear that this notice may be given at such time and to such persons as the Minister considers appropriate.

New section 35 provides for automatic cessation of citizenship if a person is a citizen of another country, is overseas and fights on behalf of, or serves, a declared terrorist organisation. A declared terrorist organisation will be a subset of those which are prescribed for the purposes of the Criminal Code. The Minister will declare those organisations that are opposed to Australia or Australia's values, democratic beliefs, rights and liberties.

New section 35A provides that a person automatically ceases to be a citizen if they are convicted of a specified offence. This provision relies on a court having determined criminal guilt. The relevant offences include treason, espionage, terrorism and foreign incursions.

The Bill provides the Minister with a personal power to rescind a notice advising a person that they ceased to be an Australian citizen and exempt a person from loss of citizenship under these provisions if the Minister considers it appropriate to do so in the public interest. If the Minister rescinds a notice and exempts the person then they do not lose their citizenship. The Minister does not have a duty to consider whether to rescind a notice and exempt the person from the loss of citizenship.

The Bill makes it clear that the new loss provisions apply to all Australian citizens, regardless of how they acquired that citizenship. There is no concept of "constitutional citizenship" in Australia and legislation has long provided that Australian citizens by birth can lose their citizenship in certain circumstances, such as fighting a war against Australia or, prior to 2002, becoming a citizen of another country.

The Bill also limits section 39 of the Australian Security Intelligence Organisation Act 1979 in relation to these provisions, such as giving notice of a loss of citizenship or rescinding a notice and exempting a person from loss. This means that the Minister may rely on any information provided by ASIO, whether it is preliminary information or whether it amounts to a security assessment or qualified security assessment.

It is intended to rely on the common law doctrine of Public Interest Immunity and the National Security Information (Criminal and Civil Proceedings) Act 2004 (known as the NSI Act) Act to protect such national security information in any subsequent litigation. The NSI Act protects information whose disclosure is likely to prejudice Australia's defence, security, international relations, law enforcement interests or national interests. The compromise of this information could possibly affect the security of the nation.

The Bill provides that a person who loses their citizenship for terrorist-related activities which demonstrate a breach of allegiance is not able to reacquire Australian citizenship in the future. This is entirely appropriate because such a person has shown that they are not capable of upholding their commitment to Australia and are not worthy of the honour of Australian citizenship.

I now turn to the issue of review rights. These provisions operate automatically, without a decision from the Minister. A person who loses their citizenship under these provisions would be able to seek a declaration from a court that they have not in fact lost their citizenship. Members would be aware that there is no need to mention this explicitly in the Bill because the Federal Court and High Court both have original jurisdiction over such matters.

The loss of citizenship provisions in the Bill will not be retrospective. However, the Parliamentary Joint Committee on Intelligence and Security will inquire into this and other aspects of the Bill. The renunciation provision in section 33AA and the fighting or serving a terrorist organisation provision in section 35 will only apply to conduct after the Bill commences. The loss of citizenship following a conviction in section 35A will apply to convictions after commencement, although the conduct which forms the basis of the conviction could have occurred before commencement.

Conclusion

In conclusion, this Bill deals with the threat caused by those who have engaged in terrorist-related conduct that is contrary to their allegiance to Australia. It formally removes a person from the Australian community when they themselves have breached their allegiance to Australia.

I commend this Bill to the Senate.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to 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.