Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Senator Brandis, when you cancel someone's citizenship and deport them back to wherever they have come from, have you done any modelling on the likelihood of them picking up a weapon and putting a bullet through one of our soldiers, because that is exactly what you are doing?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Lambie, the people to whom this act will apply are people who have committed terrorist crimes. They are people who have the propensity to behave in that way. That is, by the way, why we do not want them in Australia. That is why we do not want them in our streets and in our suburbs. When they are deported, they will be placed into the hands of the government of the other nation of which they are dual citizens, and it will be for that government to deal with them and to take whatever action, according to its domestic law, it seems appropriate to take. Senator Lambie, you say that these people might put a bullet into one of our soldiers. These are people who might put a bullet into one of our soldiers or one of our civilians. We do not want them on our streets. That is the purpose of this bill.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

So, if the terrorist act is here, you cancel their dual citizenship and then you send them overseas?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

This is the point I was trying to explain yesterday. Under section 33AA, we do not cancel their citizenship; they renounce their citizenship by engaging in conduct which the act treats as manifest evidence that they no longer have an allegiance to Australia. This is why the bill is called the 'allegiance to Australia' bill.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Yes, but what I am asking you, Attorney, is: if they do that act on Australian soil, they renounce their citizenship and you send them back to wherever they have come from? So, if they have come from the Middle East, you are actually going to send them back to a country from the Middle East? That is what I am trying to clarify. We already know that governments over there are corrupt. Who is to say that they are not going to be given a weapon, pick up a weapon and go back and fight against our soldiers?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Well, this applies of course to all dual citizens, without differentiation as to the country of their other citizenship. To use your example, let us say they were a dual citizen of Syria and Australia; if the person concerned engages in terrorist conduct and thereby renounces their allegiance to Australia and loses their Australian citizenship, they still have their Syrian citizenship, and in those circumstances we would deport them to Syria, into the hands of the Syrian government. The point I make to you, Senator Lambie, is: do you really want these people at large, walking around in the streets and suburbs of Australia, or do you want them in a jail in Syria?

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

No. You know what I would do? It is as corrupt as hell over there in Syria. You will not have any idea. They might be put over to the authorities. You will have no idea whether they are going to be released in 24 hours. That is out of your hands. So Australia now has gone into the business of exporting terrorists. That is what we are doing. Have you put a tax on that, because effectively that is what we are doing. Why would you do that? Is this the best you can do to fight terrorism?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Lambie, as I think you know, we do a great many things to fight terrorism, including the deployment of Australian forces in the international coalition to defeat and destroy ISIL, and many brave Australian service men and women are deployed in that international coalition, both in assisting and training the Iraqi Army and in the RAAF as part of the international coalition of air forces that are striking ISIL positions in northern Iraq and now in Syria as well. We do many things to fight terrorism, but one of the ways in which we need to thwart terrorism is to ensure that there are no terrorists on our streets. The way we do that is to ensure that we have strong criminal laws and well-resourced police and intelligence agencies that can arrest those people and put them on trial and put them before courts and lock them up. But this is a belt-and-braces approach, and another way we can seek to thwart terrorism is to ensure that people who are citizens of nations other than Australia lose their Australian citizenship and, as you say, can be—you used the word 'deported'—placed in the hands of the government of the other nation of which they are citizens. Senator Lambie, I do not think you would find very many people in Australia who think that we should not be doing everything we can to take terrorists off the streets of this country.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

That is not what I am saying. But what you are doing is you are actually putting them on other people's streets and you are giving them the opportunity to kill our men and women in uniform. That is what you are doing. You know what? Why don't you (a) put them in jail 23 hours a day for the rest of their life or (b) give the courts the option of using the death penalty? Wouldn't that be a much better option?

Overnight or in the last few days, we have heard news that the US are deploying extra special service troops in northern Iraq so that they can work with the Kurdish forces in their collective fight against ISIS. So what has happened in reality is that our major military partner, the US, is teaming up with a group of people who your government says are official terrorists. Is that correct?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

There are a couple of things to say about that. First, in relation to your first observation, Senator Lambie, the Australian government has for a very long time now—and this is a policy adopted by both sides of politics—opposed the death penalty, and we make representations to other countries of our position. And we, through various other measures in our international engagements—for example, through policing agencies—do everything we can to stop the death penalty. There are lots of Australians—you are obviously one—who believe in the death penalty, but this country, as a matter of government policy, does not support the death penalty. Nor do I.

Let me add to something I said to you in relation to the renunciation-by-conduct provisions. Sections 33AA and 35 apply to people who are dual citizens who are actually already overseas, so the suggestion that we are sending them overseas in fact is not germane. That part of the provisions of this bill assumes that the person is already overseas, because if they are at home then they are dealt with under section 35A. But if they are overseas they are dealt with by sections 33AA or 35.

I have seen the media reports in relation to what the United States is doing to expand its mission somewhat in the Middle East. The Australian government's commitment is, as was announced by the previous Prime Minister, an advise and assist mission with the Iraqi defence force, and it is a contribution to the air mission conducted by the RAAF in coalition with the United States and several other nations.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Bringing you back to the fact that you have the PKK along with ISIS listed as official terrorists on the proscribed list referred to in this legislation, isn't it the case that you have admitted your government does not treat all terrorist organisations on the list equally?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No, that is not right, Senator Lambie. The consequences of an organisation being declared as a terrorist organisation under the provisions of the Criminal Code are uniform. They are the same for any organisation and the same consequences apply and the same criminal offence provisions and penalties apply to a person who is a member of such a declared terrorist organisation. In relation to this particular bill, though, it is right to say that the Minister for Immigration and Border Protection may list, from the list of declared terrorist organisations, organisations to which these provisions apply. So it is at least theoretically possible that there could be organisations on the list of declared terrorist organisations declared by me, on the advice of ASIO under the Criminal Code, that would not be declared by the Minister for Immigration and Border Protection for the purposes of the operation of these provisions.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

So on the one hand Australia is supplying the PKK with arms and food and, on the other hand, we are bombing ISIS. Can you see a day when Australian forces will bomb Kurdish targets—given that the PKK is on our official terrorist list?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Lambie, our mission is to defeat and destroy ISIL.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Do you think we can reach a political decision with ISIS involved at the table?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No, Senator Lambie, and no Australian government minister has suggested that that is a way in which this conflict is going to move to a resolution.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Would you be saying then, or do you think, the only way we can solve the differences between ISIS and Australia is on the battlefield? Or do we negotiate a solution with terrorists?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

This is a battlefield conflict, Senator. Australia's engagement in the Middle East is a military engagement and we are, as I keep saying to you, determined to defeat and destroy ISIL on the battlefield. But we also have to, at the same time, protect our own domestic populations in Australia from ISIL-inspired domestic terrorism.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Overnight, as you have all seen, some UK politicians who have said that there must be dialogue with ISIS to solve this problem have compared ISIS to other terrorist organisations, like the IRA from Ireland and FARC from South America. Do you think it is valid to compare the ISIS terrorist crisis with the IRA and FARC terrorist crises where political solutions stop the violence and killings?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator, I think that is really a question that is beyond the scope of this debate, and my own views about the IRA and other terrorist organisations existing elsewhere in the world at different periods in the history of the 20th century are really not, I suspect, either well informed or germane to this debate. You are asking me about ISIL; we are dealing with ISIL in a particular way. We are dealing with it militarily in coalition with our partners in the United States, in Europe, in Russia—the entire world, Senator Lambie, not just the Western world, not just the democratic world. The entire world—virtually every nation of the world—is united in determination to defeat and destroy ISIL. That is why, in September last year, the UN General Assembly passed resolution 2178—which, if not unanimous was certainly near to unanimous in calling on all nations to assist in the destruction of ISIL. That is why, when in February of this year I went to the White House Summit on Countering Violent Extremism and we discussed ways in which to defeat ISIL-inspired domestic terrorism, what was very striking to me was that the entire world was represented. Virtually every country in the world was in that conference chamber. There were countries that were actually at war with one another that were sitting beside one another in this conference chamber because virtually the entire world is united in its determination to defeat and destroy ISIL.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I have some questions to the Attorney. Looking at the transcripts of the Prime Minister's statements given by the government, the emphasis in this legislation has been on terrorists fighting with the Daesh 'death cult', to use terminology from the former Prime Minister. A transcript of a statement of the then Prime Minister of 22 January 2015 said, 'We can't take away people's citizenship. What we can do is to ensure we stop them from going in the first place.' That was in the context of the foreign fighters legislation, so I understand that. But subsequently, when this legislation was being discussed, the emphasis was very much on people involved in terrorist-related activities. In fact, a joint press release dated 26 May 2015 by the then Prime Minister and the then and current immigration minister, the Hon. Mr Dutton, said that the Minister for Immigration and Border Protection will be able to exercise these powers in the national interest where a dual citizen betrays our country by participating in serious terrorist-related activities. This was a transcript of the then Prime Minister's statement with the Hon. Mr Dutton and you, Attorney, where a reference was made repeatedly about serious terrorist threats

I will not be prolix by repeating it unnecessarily, but the statements of the government, the Prime Minister, the Minister for Immigration and, indeed, yourself were that there was a real emphasis about having citizenship stripped in respect of being involved in a terrorist threat.

My understanding is that the legislation actually goes far beyond that, and I have made this clear. I have given fair notice to your office, Attorney, as a courtesy to you—the usual courtesy—of my concern that the application of proposed sections 35A(1) and A(3) of this bill make reference to other offences. One of those offences is section 91.1 of the Criminal Code, which relates to espionage. I will not insult the Attorney by asking him to confirm that, because it is, on the face of it, in the bill.

My concern is in relation to proceedings in the International Court of Justice in The Hague at a public sitting on Tuesday, 21 January, 2014, at the Peace Palace with President Tomka presiding. Australia was well represented by a legal team headed by Mr Justin Gleeson SC, the Solicitor-General of the Commonwealth. Reading from the transcript from the International Court of Justice in The Hague, it relates to a case concerning 'Questions Relating to the Seizure and Detention of Certain Documents and Data—Timor-Leste v Australia'. It relates to the raid on, I think, 2 December 2013, of Mr Bernard Collaery's chambers and involves Witness k—something we have ventillated on on many occasions in estimates and here in this chamber. Mr Gleeson SC, the Solicitor-General, as part of the case, said:

On the basis, however, of what I have just taken you to, there are reasonable grounds to consider that the materials over which Timor-Leste asserts privilege may include written statements, or affidavits, by a former ASIS officer, made to Mr Collaery on behalf of Timor-Leste, disclosing national security information of Australia.

If that be the case, these disclosures would involve the commission of serious criminal offences under the law of Australia, and I reference sections 39 and 41 of the Intelligence Services Act 2001 (Cth), section 70 of the Crimes Act 1914 (Cth) and section 91.1 of Schedule 1 to the Criminal Code Act 1995 (Cth), which you have at tabs 20-22.

I just wanted to put that in context.

The legislation has been framed in terms of the public discourse about terrorist related offences and being involved with Daesh or ISIS, but it actually extends beyond that. It actually includes references to section 91.1 of the Criminal Code, which relates to espionage. In the statement from Mr Justin Gleeson SC that I read from the transcript of the proceedings in The Hague in the case involving Australia and Timor-Leste, on the face of it, it appears that there is an assertion that either the former ASIS officer referred to, known as Witness K, whose identity is quite appropriately suppressed, or Mr Collaery may have committed an offence under section 91.1.

The circumstances of this matter are contentious—and the ABC's Lateline ran a series of stories on this. Does this legislation mean that, potentially, if Mr Collaery or Witness K were convicted under section 91.1—and I must emphasise that Mr Collaery is quite distressed at any suggestion that he has done anything wrong and regards himself as a patriotic Australian—and if there were such a prosecution, could it apply in a case such as this so that Mr Collaery, who is, as I understand it, a dual national, could find himself stripped of his Australian citizenship? I think I have fairly set out my concerns.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, the legislation applies in the circumstances that are set out in the bill. It applies to those species of conduct defined by the Australian criminal law and referred to in the bill.

In relation to the Collaery and Witness K matter, I know there has been a lot of public discussion about this lately and I know that you are engaged in that discussion—I saw the Lateline programs last week. I made a statement in this chamber the day after the search warrants were executed two years ago—so if it was 2 December, then today would be the second anniversary of me making that statement—and I refer you to the statement. But, beyond that, I do not think it would be appropriate for me—and I certainly do not intend to—comment on that case.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I appreciate the Attorney's answer, but it seems to me that this legislation, which has been framed fairly and squarely in the public arena by the former Prime Minister, by our immigration and by the Attorney-General, actually goes way beyond dealing with terrorism; it actually extends to section 91.1 of the Criminal Code. There is reference in the proceedings in The Hague that potentially Mr Collaery and Witness K could be in the firing line of section 91.1. That is the assertion that is made by the Solicitor-General of the Commonwealth of Australia. So does the Attorney concede that the legislation can apply in a case such as this, given the reference made by the Solicitor-General, and that an eminent Australian, a former Attorney-General of the Australian Capital Territory, could face losing his citizenship if there were a prosecution brought under this legislation, if passed, under section 91.1?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, as I am sure you know, no prosecution has been brought against Mr Collaery or Witness K, and I am just not going to be drawn on a hypothetical; I am just not.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I need to frame this very carefully, because I do not want to give up my sources. Can the Attorney give an undertaking or give an assurance, at the very least, that it is not contemplated that there will be proceedings against either Witness K or Mr Collaery that could, when this legislation is passed, lead to the stripping of their citizenship if either of them is a dual citizen? And I understand that Mr Collaery is.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am sorry, Senator Xenophon, I am not going to comment on a hypothetical case, nor am I going to be giving assurances to the chamber in relation to a matter in which primarily the Director of Public Prosecutions would decide whether or not a prosecution should be brought. I have told you, and I think you know this, that no prosecution has been commenced against either of those people, and in those circumstances I think it would be absolutely inappropriate for me to comment.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I appreciate the Attorney's comments. I wonder whether the Attorney considers it appropriate to comment as to whether there have been any assurances given to any parties that it is not contemplated, not intended or not envisaged that this legislation would be directed against Witness K or Mr Collaery?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, no act of parliament is written for the purpose of penalising identified individuals. Where they involve the application of the criminal law or sanctions, acts of the Australian parliament are written for the purpose of defining certain offences and penalising certain conduct. They are not ad hominem. They apply to all Australians.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Of course they are not ad hominem, and I appreciate the Attorney for reminding me of that—and it is fair that you do so. But is it not the case that your consent would be required for any prosecution under this section?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Can you now categorically rule out that you, as Attorney—I do not know who any future Attorney is, but by the looks of it I think you might be Attorney for a very long time in this place—would consent to a prosecution being brought against Mr Collaery or Witness K?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

It would be absolutely wrong of me to give you any assurance about a hypothetical case in which no prosecution has been initiated.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Respectfully, this is not a hypothetical case. This very matter was raised by the Solicitor-General of the Commonwealth of Australia, Mr Justin Gleeson SC, in the Hague in the International Court of Justice on 21 January 2014, where clear reference was made to a potential breach of section 91(1) of schedule 1 to the Criminal Code—one of the very sections that is captured by this legislation, allowing a person to be stripped of their citizenship. We know of the circumstances of this matter in terms of the serious allegations of the bugging of the East Timorese cabinet room during sensitive negotiations over the Timor Gap oil treaty back in 2004. We know that offices of Mr Collaery were raided. We know that this is a matter that is going to the International Court of Justice in terms of an arbitration—or it appears that it is headed that way—so I am concerned that such is the scope of this bill.

I understand the scope in terms of terrorists, and there is an argument as to what is the most effective way of dealing with it, and I will ask those questions down the track. But I am deeply concerned that that Attorney cannot rule out that there will not be a prosecution against Mr Collaery or Witness K, and that sends shivers up my spine, given the circumstances of this particular matter.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, as I am sure you know, the case to which you referred has been the subject of investigation. As you know, search warrants were executed. It would be absolutely wrong of me to respond to that which you seek from me, particularly as it would involve, among other things, interfering with the discretion of the Commonwealth DPP. It would be absolutely wrong of me, and I will not be drawn.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I understand the Attorney's propriety, and I respect that, but the Attorney still has the ability to consent or not to consent to a prosecution. He is, in a sense, the final safeguard or arbiter in these matters. After getting advice from the Commonwealth DPP, I have a very deep concern that the fact that the Attorney cannot rule it out means that this piece of legislation could extend to Mr Collaery or Witness K, who I understand is a former senior ASIS officer—and I do not know who that person is; in fact, I never want to know who that person is—who has made serious allegations about the conduct of ASIS in terms of the bugging of the East Timor cabinet room during very sensitive negotiations. It is, I think, one of the biggest spy scandals in this country in a generation.

I am concerned that somehow these two men, Mr Collaery and Witness K, could be caught up in this legislation and at least one of them could face the stripping of their Australian citizenship. I do not think that is what the legislation was intended for. That is not what the former Prime Minister said or what the Immigration Minister has said. I think it is very important that we have on the record that Mr Collaery and Witness K may well be in the firing line with this legislation.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The legislation will operate according to its terms. The legislation was not introduced into the parliament and is not being discussed tonight with any individual person in mind. The legislation is designed to declare that certain consequences may follow from certain categories of conduct which are inconsistent with allegiance to Australia. Senator Xenophon, in order to reassure you of that, might I remind you that the submissions to the International Court of Justice by Mr Gleeson, from which you have read, were made some while ago, I think in early 2014—

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

In January.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

in January 2014, well before the time at which this legislation was even contemplated.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

For the record, Madam Chair, I am not suggesting the legislation was contemplated as at 21 January 2014, but what I am suggesting is that, given Mr Gleeson's comments, his submission to the International Court of Justice, given this legislation, if you add one on one, together you can get two, which is that potentially they could be caught in the firing line on this. I make the point that the espionage provisions—and that is what we are relating to here. I want to make it clear that Mr Collaery, who has not asked me to ask these questions, who is distressed at any allegation that he could have breached section 91.1, as a proud and patriotic Australian, that the espionage provisions were never mentioned in the selling of this bill. They were not. I have gone through transcript after transcript where it was not mentioned. Furthermore, the Attorney has not repudiated the fact that these two men, witness K and Mr Collaery, could be caught up in this bill and at least one of them could face the stripping of their Australian citizenship.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, I will not comment on an individual case where there has not thus far been a prosecution. It is just not appropriate for me to do that. The legislation applies to the conduct defined in it and, where a person has engaged in that conduct, then the consequences that the legislation provides for may follow. They do not necessarily follow because there is a ministerial power of excusal in relation to section 33AA and section 35 and there is a ministerial discretion to be exercised under section 35A, but the consequences may follow where conduct is engaged in of the kind described by the legislation.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Perhaps the Attorney can correct me if I am wrong, but it is my clear understanding that Mr Gleeson SC, the Solicitor-General, has not withdrawn, repudiated, retracted or in any way resiled from the comments he made before the International Court of Justice in The Hague 21 January 2014 in terms of the statement he made, effectively that Mr Collaery and witness K could be subject to a prosecution under section 91.1 of the Criminal Code.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, Mr Gleeson did not make comments to the International Court of Justice; he made submissions in his capacityas the lead advocate for Australia in those proceedings. Those were submissions as to the potential offences that may have been committed by Collaery and witness K in the event that certain facts were established—that is all.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

And is the Attorney aware—I am sorry. The only court work I do nowadays is pro bono work, usually involving poker machines. So I should have used my terminology more precisely. Is the Attorney aware of any submissions made by Mr Gleeson to any tribunal that would in any way resile from what Mr Gleeson said on 21 January 2014 where he said that there are:

… reasonable grounds to consider that the materials over which Timor-Leste asserts privilege may include written statements or affidavits by a former ASIS officer made to Mr Collaery on behalf of Timor-Leste, disclosing national security information of Australia.

If that be the case, those disclosures would involve the commission of serious criminal offences under the law of Australia.

He then goes on to reference section 91.1 of schedule 1 of the Criminal Code of the Commonwealth. Has Mr Gleeson, in any submissions subsequent to that time, in any way withdrawn, resiled, qualified or in any way clarified those statements that he made at the time?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, it is a completely absurd question, with respect, because the issue has not arisen in judicial proceedings internationally or domestically since January 2014. So no occasion has arisen. Mr Gleeson is the senior legal representative of the Commonwealth of Australia in proceedings in the High Court and, on this occasion, in the International Court of Justice. He made some submissions on the consequences in Australian domestic law in the event that certain allegations were established. Those submissions were correct. If the elements of a particular criminal offence were in a given case established, then the person who engaged in that conduct would, at least prima facie, be considered to have committed that crime. It is no different from any other criminal offence. What Mr Gleeson was saying is that, if certain facts where shown, then certain legal consequences would follow—nothing more than that.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

So Mr Gleeson has said not that those disclosures might involve the commission of serious criminal offences under the law of Australia; he said:

… would—

I emphasise the word 'would'—

involve the commission of serious criminal offences under the law of Australia.

I simply make the point—I am not sure how much further I can take it at this stage—that this bill, sold to the people of Australia, about involving the evil that is ISIS, Daesh, whatever you want to call them, could in fact capture a former senior ASIS officer, witness K, or a former Attorney-General of the Australian Capital Territory, Mr Collaery, and that they could face their citizenship being stripped because of assertions in respect of section 91.1

That is the point I make. I cannot take it any further. I do thank the Attorney for the direct way he has answered these questions.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, thank you for your complimentary remarks, but I cannot let you get away with raising a false issue. This is a bill about terrorism. It is a bill about terrorism to protect Australians and to keep us safe. I would counsel against parsing submissions made in proceedings—quite complex proceedings. Plainly, what the Solicitor-General was saying by the use of the word 'would' was that, in the event that certain conduct were established—to the criminal standard of proof, by the way; that is proof beyond reasonable doubt—before a court, and if that conduct answered the definition of espionage in Commonwealth criminal law, then a person who engaged in that conduct, and was shown to the criminal standard of proof to have done so, would be guilty of that conduct. That is a completely commonplace proposition: if a provision of the criminal law defines the elements of a criminal offence, and if a person is shown to the criminal standard of proof in a prosecution to have engaged in that offence, then they would be convicted of that offence unless they could demonstrate a legally available defence. That is nothing more than a very, very simple illustration of the way criminal law operates.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

There are two words I have had to look up on my iPad today. The first is 'lickspittle' in the context of the tax debate; I worked out what that was. I thought it sounded pretty rude, but it was not quite as rude as it sounded. And I had to look up 'parsing', on which Wikipedia kindly says:

Parsing or syntactic analysis is the process of analysing a string of symbols, either in natural language or in computer languages, conforming to the rules of a formal grammar. The term parsing comes from Latin pars (orationis), meaning part (of speech).

And I thought it was a garnish! I suggest to you that there is no parsing here. The fact is that this goes much broader than the people of Australia were told. What concerns me is that two people involved in either exposing or, for one of them, representing someone who has arguably exposed one of the biggest spy scandals in this country in a generation, if not longer, could face having their citizenship stripped because of this. I cannot put it any higher. This seems to have gone beyond this. This was a bill presented to the people of Australia about terrorism, but instead other provisions that relate ostensibly to espionage could include this. Attorney, I am grateful for your responses. I do not think I can take it much further.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

To offer a little commentary on the exchange that we have just had—and I am not sure that this will offer any comfort to Senator Xenophon—the reference to section 91.1 of the Criminal Code is in proposed section 35A, which provides a discretion for the minister to determine in writing that a person ceases to be an Australian citizen, not a requirement that that occur. But nevertheless it is worth pointing out that, if there were to be any contravention of section 91.1 of the Criminal Code, it would certainly be open to a minister to strip citizenship from someone in those circumstances.

Attorney, I wanted to return—I hope reasonably briefly—to the matters we were exploring yesterday. I will preface my question by making it clear that this question is in the context of the issuance of a notice under proposed subsection 10, not the renunciation due to conduct. It goes again to the matter we were exploring, which is the level of satisfaction that a minister would be required to have prior to issuing such a notice under proposed subsection 10 of 33AA. You have very helpfully—and I thanked you for it yesterday—placed on the record that the minister would have to have a degree of knowledge about the conduct which would give rise to a clear mental apprehension of the existence of the conduct. To put that in lay terms—and I stress that these are my words, not yours—I would interpret the words 'clear mental apprehension' to be of a standard of proof above reasonably certain, but you may have a commentary on that. You may be able to inform the Senate of legal precedent which defines the words 'clear mental apprehension'.

The first question I wanted to ask you—and as I said, I have been a minister, as obviously you have for some time—is: would you agree that advice to the minister from a department that the relevant conduct had occurred which offended the criteria in proposed section 33AA would meet the level of satisfaction that the minister would need to have prior to issuing the notice?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Well, it could. It might. As I said to you, Senator McKim, in our exchange last night, ordinarily one would expect the minister to act on the basis of information put before him in a brief from the department. I think it would be tedious to revisit the thorough discussion we had of these issues last night, but the concept that the provision operates upon is the concept of the minister becoming aware of certain facts. 'Becoming aware' is not a lawyer's term of art, so it is given its ordinary or common-speech meaning. The dictionary defines it as 'cognisant or conscious'. It must be more than suspicion or belief. The minister would have to be, in my view, satisfied as to the existence of relevant facts.

As a I said to you last night, I do not think the standard of proof is the appropriate term here because the standard of proof assumes a dialectical process of decision making such as courts engage in. What we are concerned with here is administrative decision making. As you rightly say, Senator McKim—you were a minister yourself—you know that there are certain circumstances in which ministers exercise a discretion and they exercise discretion on the basis of having to be satisfied of the existence of certain facts or jurisdictional preconditions. That is the way this would work.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Attorney, would it be open to a minister to reach the level of satisfaction of satisfied in the absence of departmental advice?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The question is whether the minister is aware of certain facts. If he is aware of certain facts, he is ex hypothesise satisfied as to the existence of those facts. One can imagine plenty of circumstances, I dare say, in which the minister could become aware of those facts otherwise than on the basis of a brief from his department. He may be directly advised of them by a police agency, for instance. They may be, and we discussed this possibility last night, publicly manifest facts, so that there is no doubt at all from the public manifestations of certain conduct that what is involved is terrorist related conduct or conduct to which the act applies.

So it is not a jurisdictional precondition that there be departmental advice. The minister must merely be aware of the existence of certain facts or satisfied as to the existence of certain facts. The sources of that awareness, on the basis of which he is satisfied that they exist, could be other than departmental advice. But, in the most usual case, you would expect that it would be on the advice of a departmental brief.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thanks for that response. Attorney, I have always had a view, I am not sure whether it is broadly held or not in parliaments around the country, that although we would always hope that all of our ministers are reasonable people that is not always the case. Therefore, the responsibility of parliaments is actually to design legislation to the greatest degree possible that anticipates a minister potentially acting unreasonably in any circumstance. This legislation does cause me concern here because it is open to a minister, in my opinion, to be satisfied in his or her own mind that conduct has occurred without there being a reasonable standard of proof applied. I understand that there are appeal rights here, as we also discussed yesterday.

I also want to place on the record the concerns that we have, even if the minister were acting on departmental advice. Because there is no standard of proof right the way through this process—and we have invaded Iraq on the basis of weapons of mass destruction, which turned out to be completely wrong—I think we are creating a circumstance here where, for example, an officer of an intelligence agency could form a view or maliciously misreport that someone has done something that contravenes the criteria or that meets the criteria established in section 33AA. We do not know what standard of proof that person will apply or whether they are in fact being mischievous in reporting that up the chain. That advice will travel up through whichever security agency, or the AFP or the ADF. It will make its way through to the department and, finally, it will manifest to the minister in the form of advice that a notice under subsection 10 be issued.

Attorney, why didn't you make this a judicial process, where judicially accepted standards of proof could be applied prior to, firstly, the renunciation of citizenship but, secondly, the issuing of the notice?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

To come directly to your question and then I will respond to some of the other things you said in your contribution, Senator. These provisions are restricted to people offshore or to conduct that occurred offshore. I do not exclude the possibility that there could be the exception of offshore conduct engaged in by a person who has subsequently come back to Australia. But that would be an unusual case. In the ordinary case, we are dealing with people who are never going to be tried by an Australian court. That is the first point.

Secondly, of course the second part of these provisions, section 35A, specifically contemplates that the minister may revoke citizenship only after a judicial proceeding—after a court has convicted a person of a specified terrorism related crime.

But since you concentrated on the renunciation by conduct provisions, and in particular the issuance of the notice under subsection 33AA(10), what you have said, Senator, with respect, amounts to nothing more than this: that the minister might get it wrong and, of course, it is possible that any administrative decision maker might make a mistake. Of course that is the case: the whole edifice of administrative law in a sense is built upon a correction of errors by executive government or administrative decision makers. That is why we have judicial review and that is why the act specifically spells out that the issuance of a notice is subject to judicial review either in the High Court under section 75 of the Constitution or in the Federal Court under section 39B of the Judiciary Act.

That is why as well, Senator McKim, we have subsection 24, which provides: to avoid doubt, a person's citizenship is taken never to have ceased under this section, because of particular conduct. If, in proceedings under section 75 of the Constitution or under this act or another Commonwealth act, a court finds that the person did not engage in the conduct or have the requisite intention under subsection 3; or in proceedings under section 75 of the Constitution or under this act or another Commonwealth act, a court finds that the person was not a national or citizen of a country other than Australia at the time of the conduct; or the minister makes a determination under subsection 14 in relation to the conduct to exempt the person from the effect of this section; or a declaration under section 35AA is disallowed by either house of the parliament. That is not quite so relevant, but subparagraphs (a) and (b) of subsection 33AA(24) have been put there specifically to protect a person in the event that he or she successfully applies for judicial review and to reinstate the status quo ante, and to guarantee that no adverse legal consequences or impediments flow from an erroneous ministerial decision. That is the whole point of having a specific provision for judicial review.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thanks to the Attorney for that response, and I disagree with nothing that you have just said; however, I want to put to you that you are seeking to establish a process which could create a higher level of risk that a miscarriage would occur compared to a judicial process. I would like you to respond to the last point of my previous question which is: why have you not included a judicial process in the sequence of events? For example, you could have created provisions where a draft notice is issued to a person. I accept that, if they are overseas, it might be difficult to do that, but there are ways that you could legitimately attempt to do that.

I will pause here to—and I may get the numbers wrong, Attorney, but I believe you informed the Senate at some stage in the last week or so that there was knowledge of about 130 Australian citizens who had been over to fight for ISIL and that about 30 of them had returned to Australia. I know you will correct me if I am wrong but, if those numbers are right, somewhere in the region of a quarter of the known Australians citizens to have gone and fought with ISIL have in fact returned to Australia.

I am suggesting to you that you could have created process where a draft notice is issued, every reasonable attempt is made to communicate to the person that a draft notice has been issued and to provide them with a copy of the draft notice. There would then be an opportunity for them to, if they wished, contest the notice, go into the judicial system and seek a merits review of the minister's intention to issue a notice, which would have been communicated in the draft notice. Then you buy the legal system into this process and thereby minimise the chance of a mistake occurring.

But you have not done that. You have sidelined the courts entirely out of this, until they get the opportunity for a post facto review of the notice. I would appreciate if you could explain why you have done that; why you are sidelining the courts. Taking away someone's passport, withdrawing them from the electoral roll and denying them the right to vote in this country is a very significant action to take. I am sure you would agree with that. For significant punitive actions—and those are significant punitive actions—that flow as a consequence of the renunciation by conduct normally in many of the statutes of this place, we require them to be delivered by the independent courts, not by a minister who is a member of the government of the day. I ask you again: why are you sidelining the courts out of this until a post facto review?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Might I remind you that the only decision the minister makes is to issue a notice. For the reasons I explained at some length last night, the issuance of the notice is not the event upon the happening of which citizenship is lost. The event upon the happening of which citizenship is lost is the engagement by the person in certain defined conduct, which is deemed by the act to be inconsistent with their allegiance to Australia and therefore inconsistent with continuing to be an Australian citizen, subject to the overriding qualification and limitation that, because of the statelessness convention, it can only apply to dual citizens.

So let us get that straight: it is not the minister who takes the citizenship away under section 33AA or section 35; it is the person themselves who renounces their citizenship, and that does not require a judicial process. But, if the minister gets it wrong and makes a mistake in deciding to issue the notice, then the appropriate way to review a ministerial decision of that character is by judicial review through the process of administrative law. That is why the jurisdiction or the High Court under section 75 of the Constitution and of the Federal Court under section 39B of the Judiciary Act is explicitly invoked.

You quoted some figures, Senator. Let me correct you—not to be schoolmasterly, as it were, but simply because I think it is important to get the right figures on the record. There are around 110 Australians currently fighting or engaged with terrorist groups in Syria and Northern Iraq—I think you said 130. There are around 110 at the moment. At least 41, and possibly as many as 45, have been killed, some by suicide, including suicide attacks on others. Otherwise most are suicide by engagement in military conflict. Approximately 30 Australians have returned from the conflict of whom we know. The numbers are a little different from what you have said. If you aggregate as many as 45 that have been killed, the 110 who are there at the moment and the 30 who we know have returned, that is about 185 people. Of course, those are only those of whom we know. There will no doubt be others of whom we have no knowledge and, therefore, they cannot be in these figures, but those are the most accurate figures that the agencies have been able to assemble. I think the figures were last assembled on Wednesday of last week.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank the Attorney for putting the accurate figures on the table. I guess my only response to the figures you have given is that my point still remains, even though the figures that I tentatively offered were slightly out. With respect, Attorney, you have not addressed the question that I asked which is: why are you trying to create a framework which does not minimise the risk that punitive actions will be applied by the minister? I understand we are not talking about renunciation here. We are talking about the issuing of the notice, which you confirmed yesterday, which then triggers the machinery-of-government provisions, which result in the removal of a passport, the denial of people's right to vote and a range of other punitive effects that will flow from the notice. Why is it that you have decided not to engage the independent judicial system in this process until a post facto appeal or review is possible?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator McKim, because we have chosen the self-executing model, and we have done that, Senator, because the self-executing model was already part of our law. As I said in summing up the second reading debate yesterday, that model has been part of Australian law since the Nationality and Citizen Citizenship Act of 1948 was passed in that year, and section 19 of that act introduced the concept of renunciation by conduct. That provision was continued in the law, in slightly reworded form but in all legal respects essentially in the same terms, by section 35 of the 2007 Citizenship Act. So we have decided to apply a concept that has been a feature of Australian citizenship law for some 67 years.

What we have done, as I said yesterday, Senator McKim, is that we have contemporised it. The original section 19 of the Nationality and Citizenship Act applied to Australian citizens who served in the armed forces of a country at war with Australia. It provided that, upon commencing so to serve, they shall cease to be an Australian citizen. The concept of renunciation by conduct by reason of engaging in hostile military activity against Australia has been a part of our law since 1948. What we have done is taken the view—which I am sure you would agree with, Senator McKim, because I dare say you are a close student of international politics—that, in this day and age, threats by terrorist organisations and groups and irregular nonstate actors can be just as lethally threatening as conventional warfare.

Think of it this way, Senator McKim: what we have done is taken the original 1948 provision, which applied to service in the armed forces of an enemy state, and applied it as well to engagement in terrorist activity by or on behalf of terrorist organisations or in the name of terrorist causes being prosecuted by nonstate actors. That is, in the government's view, and the opposition's view evidently, a sensible contemporisation of a reality of international politics.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Do not get me started on the Labor Party's position on this, please, Minister. With the greatest of respect, my summary of your answer is that you did it because it had been done before and because you could. That is not something that the Greens agree with, obviously. I think that has been made very clear. Perhaps if I could rephrase the question slightly and shorten it significantly. Do you accept that, had you decided to create a process that would have involved, at least in some part, the independent justice system or the independent court system in this country, it would have minimised the chances of punitive action being applied in error compared to the system that you are proposing to create?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Well, I do not, Senator, because for a start you assume that courts cannot make mistakes. The entire appellate system is premised on the assumption that courts do make mistakes that have to be corrected on appeal or on further appeal. Senator, the reason we have courts is not because judges are infallible. I know many judges, I am very friendly with many judges and I know none of them to be infallible, nor would they consider themselves to be infallible. We have an independent court system so that people can have independent justice, an independent disposal of a dispute. The judicial review that protects against error in this case is based on the administrative law model. It is that simple. It is based on an administrative law model of judicial review of an administrative action, that is, the issuance of the notice rather than on the judicial model. It seems to be implicit in your question that we should strike down the entire edifice of administrative law as being somehow fundamentally unjust. Now, I do not agree with that.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

With respect, Attorney-General, it is implicit in your answer that we should abolish things like criminal trials and just let ministers issue notice and give the capacity to appeal later—

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

Senator McKim, come to your question, please.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am coming to my question.

The TEMPORARY CHAIRMAN: No, if you could come to your question.

I am coming to my question, but it is a reasonable response to make to the Attorney that that answer is grossly unsatisfactory and in fact answered a question that was not put by me in any way, because I did not talk about infallibility; I talked about minimising risk of a miscarriage or of punitive action being applied. That is what I was talking about: minimising the risk, not infallibility.

I am not going to drop any names and I certainly do not want to try to compete with you. I am sure you know more judges than I do, Attorney, but I do know a couple of judges and I know an awful lot of lawyers, and you are right: none of them would consider themselves to be infallible, just as none of the ministers I have ever met, including myself, would consider themselves to be infallible either. So that is, I guess, a distraction from the real issue at hand here, with the greatest of respect, but I just wanted to put that rebuttal on the record.

Are you able to provide any advice around questions such as: once a notification is issued by the minister, how long ordinarily would it be before a person would be deported? Obviously, the context of this question is that the person is in Australia not on a visa from their other nationality—because we were talking about dual nationals here. They are in Australia as an Australian citizen, with no other rights to be in the country. Obviously, once the notice is issued consequences flow, as we have discussed, and presumably they would then be illegally in this country. In the ordinary course of events, are you able to offer any advice about how soon after the notice is issued a person would be deported? Also, is there any length of time beyond which they would not be capable of applying for the judicial review of the notice?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator McKim, I cannot tell you how much I am enjoying, on the last day of the parliamentary year and in the Christmas season, debating with you the concept of infallibility. In fact, you remind me of Pope Pius IX, who was the pope who, in the 19th century, declared the doctrine of infallibility, and it is said of Pope Pius IX that he once remarked to one of his cardinals, 'The problem with being infallible is you've got to be very careful about what you say.' Of course, the minister, who is not infallible, is going to be very careful, because ministers do not seek to make mistakes. They seek to make correct decisions, just as judges do. We have adopted an administrative law model in which judicial review is the curial safeguard. We could have adopted a curial model—no, not unnecessarily any more infallible or any less fallible than an administrative law model. We have adopted an administrative law model subject to judicial review rather than a curial model subject to appellate review. And we have done that, as I explained before, because that has been the way these provisions have always worked, and we have decided, rather than to rewrite the law, to adopt the existing model that has stood in the law since 1948 and contemporise it and, in contemporising it, expand it to a wider range of situations presented by the problem of non-state actors and modern terrorism.

Coming to the question towards the end of your contribution, if a person were to be deported—and, ex hypothesi, this person is somebody of whom the minister is satisfied that a notice should issue, because they have renounced their Australian citizenship by committing a terrorist act—then ordinarily they would be taken into immigration detention—that is the usual procedure, as I understand it—while arrangements would be made for their deportation. That is the way that it operates at the moment in relation to people who are not lawfully in Australia and are awaiting deportation in circumstances where it is not safe for them to be at large in the community. As to whether there was a limit on when proceedings could be commenced, one would imagine that such a person would commence proceedings reasonably promptly. But, because the kind of relief which they would be seeking under either section 75 of the Constitution or section 39B of the Judiciary Act would be a declaration or an injunction—primarily, that is the obvious relief—and those are equitable suits, they would not be subject to any statutory time bar. But they would be subject to the ordinary equitable defences of laches, acquiescence and delay.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I move amendment (1) on sheet 7815:

(1) Schedule 1, page 18 (after line 27), after item 7, insert:

7A After section 53

  Insert:

53A Sunset provision

(1) Sections 33AA, 35, 35AA, 35AB, 35A, 35B and 36A cease to have effect at the end of 10 years after this section commences.

(2) The regulations may prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the provisions mentioned in subsection (1) ceasing to have effect in accordance with that subsection.

This is the first of two amendments that I am moving in relation to this bill. This one inserts a new section 53A, which provides for a sunset clause of 10 years duration on those sections of the Citizenship Act 1948 amended or inserted by this bill. It therefore applies to proposed sections 33AA, 35, 35AA, 35AB, 35A, 35B and 36A.

Sunset clauses allow draconian laws, unless a future parliament decides otherwise, to automatically expire at a set date. I recognise they are not an ideal solution. Some people—and Bret Walker, I see, is one of them—have said that if laws were well drafted in the first place sunset clauses would not be necessary. But laws are rarely perfectly drafted, and when one is confronted by the enactment of illiberal law they provide some protection.

I move this sunset clause amendment because I refuse to countenance the idea that there will always be a war on terror and that laws this draconian should remain forever on the nation's books. We will not always be at war with Eurasia. I also add that, should we still be at war with Daesh in 10 years time, it will amount to a military failure. I do not believe Daesh will still exist in five years time, let alone 10. Should Daesh disappear from the historical record, it is presumptuous to assume another terrorist organisation will emerge to replace it. And, if it does, it would be open to any future parliament to either re-enact these provisions or implement new ones just as we are proposing to do this evening.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I envy you your optimistic, insouciant, Panglossian view of the world. I do not hold myself out to be a specialist in international politics and the behaviour of international terrorist organisations; however, every report or study that I have read in recent years—and I have read many—concludes that this is a problem that we will face for a very long and indeterminate time into the future. That, by the way, is also the advice of our own agencies. It is the view of the Australian Strategic Policy Institute and other respected Australian think tanks. It is a view that has been expressed by academic specialists on terrorism, including people like Professor Greg Barton, who is a well-known commentator in this field. This is a problem that will be with us for a very long and indeterminate time to come.

I can see the argument in some circumstances for sunset clauses, where you have unusual and, to use your word without conceding that it applies to this bill, draconian legislation that deals with a time limited problem, so that it should not remain on the statute books indefinitely. There is a good case for sunset clauses in those circumstances. Where we differ and where, with respect, you seem to differ from the entire body of specialist and professional opinion on this is that you think this is a time limited problem. As I said, I wish I could think that too, but I do not.

If a measure is an appropriate measure to deal with a current problem that one expects to be a problem for a long and indefinite time to come then it is not appropriate to sunset it. It is appropriate to inscribe it into the law. It is appropriate to inscribe it into the law, and if, in 10 years, 20 years, 30 years or whenever, a future parliament concludes that this problem has gone away, then it can be repealed. There is nothing to stop a parliament repealing a law. But to suggest that automatically this law should go on the basis of a guess, in the face of all professional opinion, that this is a problem that will go away in a decade is not, in my respectful view, an appropriate use of the mechanism of sunset provisions.

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

Labor does not support this amendment put forward by Senator Leyonhjelm. We have consistently said that we accept the need to update the longstanding provision in the Citizenship Act that strips Australian citizenship from dual nationals fighting in the service of a foreign enemy. The need to update the provision has arisen from the existence of non-state belligerents like al-Qaeda and ISIS. It cannot be assumed that the existence of these movements is a short-term phenomenon, and Labor strongly does not accept the notion that the bill's provisions should have a limited life.

We have, however, supported review measures already included in the bill on the recommendation of the Parliamentary Joint Committee on Intelligence and Security. I know Senator Leyonhjelm knows these provisions, but I will put them into the record. The joint committee will monitor and review the role of the Department of Immigration and Border Protection in implementing the bill's provisions. The minister must advise the joint committee when issuing a notice of loss of citizenship. The Independent National Security Legislation Monitor will review the revocation of citizenship by 1 December 2018. The joint committee will undertake a full review of the revocation-of-citizenship provisions by 1 December 2019.

I remind senators that Labor established the Office of the Independent National Security Legislation Monitor in 2010. The monitor's role is to review the operation, effectiveness and implications of Australia's counter-terrorism and security legislation. That includes considering whether the laws contain adequate safeguards for protecting the rights of individuals, whether the laws remain necessary and, if so, whether the responses they allow are proportionate to any threat.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens will be supporting the amendment. Are we dealing with both of Senator Leyonhjelm's amendments or just the sunset clause?

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

We are just dealing with amendment (1).

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

We will be supporting this amendment from Senator Leyonhjelm for the following reasons. This basically changes the default position. At the moment, it would need a further decision of the parliament for these laws or these provisions to cease. A sunset clause, effectively, switches the default provision so that these provisions would cease in 10 years. It is worth pointing out that parliaments can always and often do change their minds. If the sunset clause were agreed to by both houses of this parliament, there would be nothing preventing this parliament from coming along and extending these laws later should there be arguments that convince a majority of members in both chambers of this parliament that that should be the case. So there is nothing to lose here for Labor and the government.

In relation to the joint committee, it is a closed shop made up only of coalition and Labor members, which I think is a real shame, and robs that committee of alternative views that might assist it in reporting adequately on legislation such as this. But we are supporting Senator Leyonhjelm here because we believe that laws like this ought to be reviewed regularly by the parliament. That is the effect of a sunset clause. If the government or anyone else believes that there is a worthy argument to extend these laws past 10 years, they can come back in at the appropriate time and move to either strike out the sunset clause or insert a further extension of the sunset clause. That is prudent legislative practice in the view of the Greens, and that is why we will be supporting this amendment.

I do want to make it clear, though—and it seems, given the comments, that this amendment will not pass—that, even if it had passed, it still would not have satisfied the Greens in terms of convincing us to vote for this legislation. It merely would have taken bad legislation and made it slightly less bad.

The CHAIRMAN: The question is that amendment (1) on sheet 7815 moved by Senator Leyonhjelm be agreed to.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I move amendment (2) on sheet 7815:

(2) Schedule 1, item 8, page 19 (lines 21 to 26), omit paragraph (4)(b), substitute:

  (b) does not apply in relation to:

     (i) a conviction of a person before the commencement of this item; or

     (ii) a conviction of a person on or after the commencement of this item in relation to an act or thing that was done wholly before the commencement of this item.

This amendment seeks to amend item 8 in schedule 1 of the bill to remove the retrospective application of the criminal law. I should note that, although the retrospectivity as it stands is limited and only applies to a small number of people, who will attract limited public sympathy, it is contrary to the rule of law and to fundamental principles of the common law. Chair, I am having trouble hearing myself. I am just wondering if you could remind senators of the need for silence.

The CHAIRMAN: I certainly can. The Senate needs to come to order. There are a lot of people here. Senator Leyonhjelm has the call.

I think I was making some exceedingly good points, and I do not want have to repeat them.

The retrospectivity, I acknowledge, is limited and only applies to a small number of people, who will attract limited public sympathy, but it is contrary to the rule of law and to fundamental principles of the common law. The amendment, as I have drafted it, applies not only to a conviction secured after the commencement of the legislation but also to conduct that takes place after commencement. The point is that Australians considering their actions now should be able to weigh up the consequences of that action based on the law as it stands now. The fact that I need to point out such a basic principle of natural justice concerns me greatly.

Retrospective law of this type is simply not necessary, as the government already has a suite of powers to ensure that people who have served their sentences for terrorist offences are monitored. In the case of Mr Collaery that Senator Xenophon raised earlier this evening, his only risk is attributable to the retrospectivity. There would be no risk to that gentleman if the law did not apply retrospectively. I also make the point that Senator Brandis will not be the Attorney-General forever, but the law will apply forever, unless it is repealed or my sunset clause is appealed. And this law is not just about terrorism; it does include espionage. It is better not to risk injustice attributable to retrospectivity in a case like that.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Leyonhjelm, of course I agree with you that, as a general rule, retrospectivity is a bad principle. There is no question about that. But every general rule admits of some exceptions and, in this particular case, this is a very narrow aspect of the retrospectivity principle, because the reason we regard retrospective legislation as bad is that it creates a liability in respect of conduct which at the time the conduct was engaged in was lawful; but what we are calling the retrospectivity provision in this bill does no such thing. The entire method of this bill, at least insofar as it concerns these provisions, is to assume a person has been convicted of a terrorism crime—convicted and sentenced—so that, at the time they engaged in the conduct, it was not as if they were acting lawfully. These provisions only operate in relation to people who had been acting unlawfully at the time, under the law as it was at the time, and in fact committing a serious crime, a serious terrorism crime, and who have been prosecuted, convicted and sentenced for an offence carrying a penalty of at least 10 years imprisonment. The provision, which was recommended by the PJCIS—recommendation 10, I believe it was—is that, in those circumstances, those people should also be liable to revocation of citizenship by reason of conviction.

Senator Leyonhjelm, you would be on stronger ground, if I may say so, if you could point to conduct which was not unlawful, was not in fact a serious, grave breach of the criminal law, at the time in which it was engaged in. But that is not this case. These provisions only apply to conduct that was a serious criminal offence, a terrorism offence, at the time it was engaged in under the law of Australia as it stood at that time. The only sense in which it operates retrospectively is that it visits an additional potential consequence upon such a person—that is, if they are a dual citizen, the revocation of their citizenship by the minister—that was not part of Australian law at the time the crime was committed. So the only element of retrospectivity is as to consequences, not as to liability. That is why I say, Senator Leyonhjelm, that this is a very, very narrow sense in which the provision is retrospective. Furthermore, it can only reach back 10 years. So if you are a person who, within the last 10 years, has been convicted of a terrorist crime in Australia for which the period of imprisonment is at least 10 years, then this can apply to you. But it does not criminalise something that was innocent at the time it was done. That is the real vice of retrospective laws, and this is not a law of that character.

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

Labor is not supporting this amendment moved by Senator Leyonhjelm. With regard to the proposed removal of retrospectivity from the bill, because of the government's acceptance of the joint committee's recommendations, there is in fact only very limited retrospectivity, as Senator Leyonhjelm pointed out. Dual citizens who have been convicted of a serious terrorism offence within the past 10 years, and who were sentenced by a judge to a minimum of 10 years jail for that offence, may have their citizenship revoked, as the Attorney pointed out in his contribution. The joint committee took the view that past terrorist-related conduct leading to a conviction under Australian law would be regarded by all members of the community as repugnant and inconsistent with the values that define Australian society. Revocation of citizenship in these limited circumstances will be at the minister's discretion with regard to criteria that include current threats to our security.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens will be supporting this amendment. It is a classic case of double jeopardy. I mean, come on. We understand that this retrospectivity is limited. We understand very clearly the circumstances under which it will be applied. But this is double jeopardy, let's face it. Double jeopardy under most legally-accepted definitions is either trying someone twice or punishing someone twice for the same offence. So here we go again, the national security lock step is in place here: Labor is absolutely petrified of being painted weak on national security out in the electorate by a government that has shown a propensity to do that over a number of years now, falling into lock step again and backing in a clear and unambiguous case of double jeopardy or laws that provide unambiguously for double jeopardy. This is a sad, sad day for the Senate and the Parliament of Australia. We very proudly support Senator Leyonhjelm's amendment but I do offer the same caveat that I did before, in relation to his previous amendment, which is that even should this have passed it still would have made only a very, very bad piece of legislation slightly less bad.

We understand that someone to whom this retrospectivity may be applied would likely still be incarcerated under the provisions of this bill. So what we are doing again here is creating a situation where someone who has committed a terrorist act is going to come out of a lengthy prison term in Australia and they are going to be immediately—or very close to immediately—deported back to the country that they have their other citizenship in. Most likely it will be a country where they will be free to pick up their guns, pick up their bombs, and go to cities like Paris, Beirut and Bamako and commit more terrorist acts. You guys here are acting to make the world a more dangerous place and a more dangerous place for Australian citizens. You are placing our people at higher risk here than they otherwise would be if they were charged and convicted in Australia as they should be. This legislation not only erodes the rule of law, it not only implies a lack of trust in our judicial system but it is actually counterproductive. It exposes Australians to more risk and more danger of being killed or wounded than otherwise would be the case.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I know the hour is late but I am afraid, Senator McKim, that your flights of rhetorical fancy are outpacing your judgement and reason. You have said that this legislation and this provision make Australians more at risk because, on your example, a person who has been convicted of a terrorist crime and serves 10 years or more in prison and has then been released will be deported overseas and then that person, you say, is somebody who could pick up a gun or throw a bomb in that foreign country. I would much prefer that they not pick up a gun or throw a bomb in Australia. I would much prefer that such a person who, on your hypothesis, has a continuing propensity to engage in further acts of terrorist crime to—to use your words—'pick up a gun or throw a bomb' does not do so in Australia. I would much prefer that they do not do so in Australia.

The fact is that this is not a case of double jeopardy. It is a case where the consequences of having been convicted of a terrorist crime will include now, and will include in relation to all convictions within the last 10 years for terrorist crimes, the capacity to remove that person's citizenship—a person who has been tried and convicted. Senator McKim, you asked a series of questions about the renunciation by conduct provisions of the bill last night and this evening, and your very point was: this is not a judicial process. But the provision you are now criticising is a judicial process. It depends on the precondition that there should have been a criminal prosecution and a conviction and that the person should have been imprisoned by a court for at least 10 years by reason of that terrorist crime.

So there has been no want of judicial process in this case. Nor is there retrospectivity in the classic sense of creating a liability which did not exist at the time the conduct was engaged in, ex hypothesi the conduct that was engaged in was a serious crime at the time it was engaged in. But the legislation does say in relation to somebody who does that, when they get out of jail if they have been sentenced to a period of imprisonment of at least 1 years, they can have their Australian citizenship rescinded by the minister and may then be deported—into the hands, by the way, of a foreign government; into the hands of the government of their other nationality.

That is the way this legislation operates, Senator McKim. It will keep Australians safe. Senator McKim, if you were to apply the famous pub test to this and you asked your average Australian whether they would feel safer or less safe if people who have been convicted and sentenced for more than 10 years imprisonment for committing a terrorist crime were to be booted out of Australia and whether Australians would approve of it, I dare say they would say yes.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

So let's just send them back to the Assad regime, will we? That is a fantastic solution—not! The fundamental flaw—actually there are many, but there is one that I will focus on—in the Attorney's response is that guns and bombs are far easier to get a hold of in Syria than in Australia, and thankfully so for us here in Australia. Also, we have far better social cohesion frameworks here in Australia, which is where the new Prime Minister wants to go in this debate—and rightfully so, I might add—so that we can attempt to de-radicalise people in Australia. There is a far better chance of de-radicalising somebody here in Australia than there is over there under the Assad regime in Syria. Surely the Attorney would have to accept that.

In relation to the legislation as a whole and whether or not it indeed acts to make Australia safe—and I will flag now that I will have some questions on this further on the committee stages once the Senate has dealt with these amendments—I want to quote something really quickly from Professor Ben Saul, a counter-terrorism expert from the University of Sydney. He says this legislation:

… is certain to make the world more dangerous and is grossly irresponsible. It is contrary to Australia's international legal obligations to counter terrorism globally.

He goes on to say a little bit later in this article he wrote for The Drum:

Under the proposal, Australia washes its hands of responsibility for Australian terrorists. For those already overseas in Syria and Iraq, it leaves them free to kill and maim and up-skill their 'death cult' against innocent civilians in other countries.

And I will pause there and add my own words here: including potentially Australians abroad, as we found out to our absolute horror in Paris recently. Professor Saul goes on to say:

It is a parochial and self-centred 'not in my backyard' policy, where Australia dumps the burden of suppressing its own terrorists onto other countries.

I could not agree more with Professor Saul here, and I place the charge on every Labor and coalition member in this place who is about to, in the next hour or two, vote this legislation through this Senate and therefore this parliament that you are exposing Australians to more danger, more risk of being killed, more risk of being wounded and more risk of being maimed than would otherwise be the case. Be it on your own heads.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator McKim, logic seems to have escaped you at this late hour, because the people of whom we speak will never set foot in Australia again. They will never set foot in Australia again. If, on your thesis, these are people with a propensity to commit further terrorist crimes, they will never be committing those crimes in our country.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am just going to make a very short response to that. There was a Hobart woman, Emma Parkinson, who was shot in Paris recently, Attorney—shot in Paris, not in Australia. Australians travel regularly to most of the world's countries. I am sure you are aware of this, but you are just being obtuse and refusing to accept reality here. You want to export terrorists back into more dangerous places in the world—therefore, placing Australian citizens in some of the world's major cities at risk. We have seen terrorist attacks in Paris, we have seen them in Madrid and we have seen them in London. We have seen them in a range of cities that at any one time thousands of Australians are residing, holidaying or working in. You know that to be true; we all know that to be true. That is an extremely strong argument against this legislation.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator McKim, of course we know that Australians travel all the time—and of course our hearts go out to Emma Parkinson and her family and friends. There is a risk that Australians travelling abroad are exposed to terrorist crime, and we saw that in the case of Ms Parkinson. But the point I am making to you, Senator McKim—and I will try to make it in very temperate language—is that the people of whom you speak, on your thesis, are people who have a propensity or indeed an intention to commit further terrorist crimes. The Australian community is less likely to be at peril from such people if they are thrown out of Australia and placed into the hands of foreign governments. We would mitigate the risk to Australians if a person who has already demonstrated a propensity to commit serious terrorist crime and, on your thesis, intends to commit another serious terrorist crime is expelled from Australia rather than set free to walk unconstrained on our streets.

Published up to 10pm the remainder will be available by 2pm Friday 4 December 2015.