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

We've obviously now moved into the committee stage of the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023. I want to respond to a number of points that have been made to date to ensure the Senate understands what we are actually dealing with versus what a number of government members say we are dealing with.

The first issue is that Senator Sterle made a number of comments in his second reading contribution which, I would put to Senator Sterle, are actually wrong. What Mr Dreyfus warned about wasn't the thing that the High Court actually addressed. Of course, we don't want to let facts get in the way of what is good rhetoric. In fact, the measure that the High Court had a problem with, which was citizenship cessation by ministerial decision, was the one that Mr Dreyfus had himself welcomed. Senator Sterle also said—and we'll explore this during the committee stage—that the government had moved 'quickly and carefully'. I would defy anybody to say that 18 months—because that's what it's taken for this government to actually bring this legislation before the parliament, and we'll explore why the legislation is important—is quickly and carefully, unless, of course, you are a member of the Albanese Labor government and you believe taking 18 months to do something that is urgent is, in Labor's terms, moving quickly and carefully. Maybe it is. Maybe I am verballing Senator Sterle. Maybe he genuinely does believe, on behalf of the Albanese Labor government, that when something is urgent—and we'll go through the urgency shortly—the Labor Party taking 18 months to act on it is moving quickly. I, personally, am going to dispute that.

It was in June 2022 that the Alexander decision was handed down. June 2022: the Labor government is in power, Mr Albanese has been elected as Prime Minister, and the Alexander decision is brought down by the High Court. Everybody knows what the result of that decision is. Eighteen months later—because that is where we are—and it is December, we're heading towards Christmas 2023 and Senator Sterle believes that the Australian Labor Party, under Mr Albanese, has moved quickly and carefully. I would put to the Australian people that perhaps, by that measure—an 18-month turnaround—if the Australian Labor Party wanted to respond to something happening today, they'd bring it forward in the next parliament.

Let us also, though, make some comments in relation to why this bill is before the Senate. I want to remind those opposite of the provisions that were invalidated in the Benbrika decision—and similarly in the Alexander decision, which I just referred to, almost 18 months ago. You would think from the comments made by the Australian Labor Party that they actually opposed them. But, you see, the provisions that were invalidated by the High Court of Australia were not only bipartisan—in political terms, bipartisan means agreed between the two parties of government: the coalition and the Australian Labor Party—they were expressly welcomed by the Australian Labor Party.

The provisions that were knocked out by the High Court were sections 36B and 36D of the Australian Citizenship Amendment (Citizenship Cessation) Act 2020. The reason they were knocked out was that they operated to allow the removal of a person's citizenship by ministerial decision rather than by the courts. We're going to hear a lot of rhetoric over the next 85 minutes from the Australian Labor Party. Let's just put the facts on the record so the public can distil the rhetoric that we're going to hear from the actual facts.

Here is what the Labor members of the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, led by the current Attorney-General, Mr Dreyfus, said at the time in their additional comments on the PJCIS report: 'Labor members welcome the move to a ministerial decision-making model of citizenship cessation.' So it was not only bipartisan but also expressly welcomed by the Australian Labor Party. As I said, that was from the PJCIS members led by—you would not believe it given the statements he's currently making—the current Attorney-General. Here's another quote:

Fortunately, the move to a ministerial decision-making model of citizenship cessation will provide the Government with the flexibility to better manage the risk of potential adverse security outcomes (e.g. the Minister could decide not to cancel a person's citizenship where the cancellation would increase the risk the person poses to Australians overseas, or where citizenship cancellation would seriously damage Australia's international relations).

Again, that was Labor members of the PJCIS, led by the current Attorney-General. Again, that's bipartisanship—two parties of government working together and expressly welcoming these changes.

In his second reading speech on the Australian Citizenship Amendment (Citizenship Cessation) Bill, the then shadow Attorney-General described Labor as—I quote because we're going to hear a lot of rhetoric from the other side, so let's just put the facts on the table—'fully supporting the move to a ministerial decision-making model'. Of course, the thing that the Australian Labor Party fully supported was precisely the thing that was later found to be invalid by the High Court when it knocked out sections 36B and 36D on the basis that they 'repose in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt, contrary to chapter 3 of the Constitution'.

The truth is that the model that was found to be invalid by the High Court was developed and supported on a bipartisan basis—the coalition in government working with the then opposition, the Australian Labor Party—over a number of years. It didn't happen overnight. This was bipartisanship when it came to national security, through multiple inquiries by the PJCIS, to ensure that the privileges of Australian citizenship could be revoked in appropriate circumstances. Over the next 80 minutes, we are going to hear a lot of rhetoric coming from the government, but let us be very clear for the Hansard record and for those listening in: what was knocked out by the High Court had been worked on for years in a bipartisan manner and was expressly welcomed by the then shadow Attorney-General and Labor members in their report in the PJCIS inquiry. To come in here, as they have been doing in the media and as they will shortly do here, and purport that the thing found invalid was something other than a product of a shared process is base politics and nothing more and is disingenuous in the extreme.

For the Hansard record, and so that people understand what occurred: the Australian Senate—in other words, the people here—had already agreed to refer the operational effectiveness and implications of the amendments made by the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 to the PJCIS. Labor clearly forgot that because they still wanted me to move my amendment. I don't know why. Perhaps they have short memories. The Senate had already agreed to do that. On the basis that the Senate had already agreed to do that, it would appear to be irrelevant, in fact superfluous, to again move a second reading amendment to require the Senate to do what the Senate had already voted to do. But the Australian Labor Party work in very strange ways. Let's leave it to their confusion and nothing more as to why they forgot that the Australian Senate had already agreed to do that.

My question to the minister is: when were drafting instructions for this current bill first submitted to the Office of Parliamentary Counsel?

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

The answer I can give you is the same as the one I gave you yesterday for a similar question. I will need to take on notice the exact date that those drafting instructions were first issued to the Office of Parliamentary Counsel. What I can say to you is that, like yesterday, policy design work on these matters commenced around the time of the Alexander decision. Work has been underway for some period of time on this. It wasn't until the Benbrika decision was handed down that a full explanation was provided by the High Court that would enable the drafting of a bill that was constitutionally sound. I am advised that policy design work on what became this bill commenced pretty much immediately after the Alexander decision.

While I'm on my feet, I might take the opportunity to explain a little bit more about the amendments that are being put forward in this bill today, because they goes to the concept of Australian citizenship. In 2022 over 190,000 people became Australian citizens by conferral, joining our community and swearing allegiance to our country and our common values. Citizenship is not a passive process. It is a formal commitment to our country and the values that uniquely define all of us as Australians. It is a privilege cherished by those who are born into it and those who choose it. Australian citizenship is a common bond involving reciprocal rights and obligations between the citizen and the state. These reciprocal rights and obligations require active maintenance both from the citizen and from the state, regardless of how a citizen acquired their citizenship.

Citizens voluntarily engaging in serious and significant conduct, such as treason, advocating mutiny and fighting for foreign states, fail to meet the obligations of their Australian citizenship. By working against the interests and common values of Australia, they have demonstrated that they, as individuals, do not have allegiance to Australia. The common bond of citizenship has been broken, and it is appropriate for a framework to exist to formally cease these individuals' Australian citizenship.

In 2015 the parliament recognised that a citizen could repudiate their allegiance to Australia and break this common bond by committing terrorist acts or leaving Australia to join terrorist groups overseas, when the parliament introduced the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The parliament's intention was confirmed when the provisions were reformed in 2020. This is really where the story of today's legislation begins.

I can understand that people who may be following this debate might be a little bit confused about the different concepts that are being dealt with, today and yesterday.

Yesterday, of course, what we dealt with was the matter of noncitizens who were in immigration detention, who have had to be released as a result of a High Court decision. Today is a separate concept. Today is about ensuring that we have constitutional laws—laws that are legal—to strip the citizenship of people who have Australian citizenship but have committed acts or serious offences that demonstrate they do not have the allegiance to Australia and our values that citizenship involves.

Another way of describing what we're doing today is fixing yet another mess from Mr Dutton, as the former Minister for Home Affairs in this country. I mentioned in the debate yesterday the separate legislation dealing with the noncitizens who have had to be released into the community. I mentioned yesterday that the only reason we were having the debate yesterday was that this government and this parliament is now required to fix a number of serious failures from Mr Dutton in his role as Minister for Home Affairs in the former government. The failures most egregiously involved the fact that the regime for the detention of noncitizens that Mr Dutton implemented as the minister was found to be unconstitutional by the High Court—aka not legal. The fundamental reason for that was that the system Mr Dutton had in place gave the power to the minister rather than a court to order the indefinite detention of one of those noncitizens. It was the giving of the power to the minister rather than a court that the High Court found to been unconstitutional.

That wasn't the only failure from Mr Dutton that led us having that debate yesterday and having to pass legislation yesterday in relation to those noncitizens in detention. He also, of course, personally intervened to allow a visa to be granted to the plaintiff in the NZYQ case. That person wouldn't have been in Australia and wouldn't have been in detention if Mr Dutton hadn't personally intervened, as the minister, to grant that individual a visa. Of course, what we also know is that Mr Dutton was either unable or unwilling to negotiate resettlement arrangements to resettle in other countries any of the 147 people who have now been released into the community. The whole foundation of why we had that debate yesterday and passed those laws yesterday is a series of failures from Mr Dutton as the minister: no resettlement deals, intervening to grant a visa to the plaintiff in the case and, of course, presiding over an unconstitutional system.

In case people are feeling a sense of deja vu as they're listening to the debate today: that's because you are. What we're doing today is again fixing unconstitutional laws that were introduced and presided over by Mr Dutton as the home affairs minister. We've had a situation over the last few weeks where Mr Dutton, Senator Cash and the coalition have tried to lay blame at the feet of the Albanese government and have played politics with these matters. The only reason we are having these debates, the only reason we are introducing these pieces of legislation, is a series of failures of Mr Dutton and the coalition during their time in office. They were never concerned with whether laws were constitutional. They were never concerned with whether laws were legal. Have a look at robodebt: a cruel and illegal system presided over by the Morrison government. But it wasn't just social security matters where the Morrison government and Mr Dutton acted illegally and acted outside the bounds of the law; they also did it in relation to immigration matters. That's why we are here today fixing up this mess.

Just like the debate we had yesterday, what we're dealing with today is fixing laws that were unconstitutional, unlawful and brought into this parliament by Mr Dutton as the home affairs minister. Again, over those years where we saw Mr Dutton as the home affairs minister, there was lots of tough talk. I said on the weekend that he's like one of those boxers who goes around in the days leading up to a fight talking about how tough he is and how he will knock the other guy out, but he gets in the ring and he's a lightweight—because his laws don't stand up. His laws were unconstitutional, and they were struck down by the High Court. That is why we are here today. That is why we should also be highly cautious about any amendments proposed by the opposition, when they have a track record of drafting laws in this space which are unconstitutional.

We'll no doubt have a discussion about those amendments at some point through this committee stage, but we should be extremely cautious of taking the advice and taking the amendments of people who actually presided over the very unconstitutional laws that we are dealing with now. That is why this government has said that those amendments should be considered by the Parliamentary Joint Committee on Intelligence and Security to ensure that they're constitutional. The very worst thing that we could do right now is, for the sake of scoring some political points and getting some good runs in some media outlets, to introduce new laws that are as unconstitutional as the last ones Mr Dutton introduced, and the ones before that that he and his government introduced as well.

What we, the Albanese government, want to do is put in place serious, tough laws that actually work, that stand up in court and that make sure the government can make applications to a court to seek the stripping of citizenship from people who commit very serious offences—not just any offences but offences that go to their lack of allegiance to this country and our values; offences like treason, advocating mutiny and fighting for foreign states. Provided we draft these laws in a way that gives the power to strip citizenship for those types of matters to a court, we are confident that they are constitutional.

To expand those powers further to cover a range of other offences that are unrelated to things like treason, mutiny and allegiance to a country—to expand the laws to try to capture those types of offences—risks again having unconstitutional laws penned by Mr Dutton and the coalition and does so only to score political points. We are confident that the legislation that we're putting forward is constitutional, and I call on all parties in the chamber to support it. (Time expired)

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

I have a number of questions that I want to get through, but unfortunately I fear we're just going to get a lot of rhetoric from the minister yet again. I know Mr Dreyfus is out there holding a press conference now and making all sorts of excuses as to why the government has failed to act to date. He is making all sorts of excuses in relation to the release of the detainees.

I said we were going to hear a lot of rhetoric from the minister, and in his first 10-minute contribution that was proven to be true. These are obviously the Labor talking points, though, because they would appear to back in the rhetoric that the Attorney-General is currently saying to the media. Both the minister and the Attorney-General are putting this to the Australian people, and I will quote from what Mr Dreyfus is saying:

Both of the citizenship loss provisions introduced by Mr Dutton and the Coalition when in government, were struck down by the High Court.

The issue I have with that is this: Mr Dreyfus clearly has a very short memory. Perhaps the press would like to put to Mr Dreyfus: does he stand by the comments that he made when he and the Labor members of the PJCIS—and remember, as I said, the PJCIS at that time was led by the current Attorney-General. This is what they said in relation to the laws that we are discussing today, which were looked at by the PJCIS at the time, were worked on in a bipartisan manner—in other words, by both parties of government, the Australian Labor Party and the coalition—and were passed in a bipartisan manner. So, whilst Mr Dreyfus is out there saying one thing to the press, perhaps the press would like to quote back to Mr Dreyfus and ask him if he stands by the comments that he made when he was a member of the PJCIS.

In fact, it was led by him, as I said. This is what Mr Dreyfus said at the time:

Labor members welcome the move to a ministerial decision-making model of citizenship cessation.

Has Mr Dreyfus now decided that he put the wrong comments in the PJCIS report?

They also said this:

Fortunately, the move to a ministerial decision-making model of citizenship cessation will provide the Government with the flexibility to better manage the risk of potential adverse security outcomes (e.g. the Minister could decide not to cancel a person's citizenship where the cancellation would increase the risk the person poses to Australians overseas, or where citizenship cancellation would seriously damage Australia's international relations).

Now, again, perhaps the press would like to put to Mr Dreyfus whether or not he stands by the comments he made in his second reading speech on the citizenship cessation bill, because you see, Mr Dreyfus, when he was shadow Attorney-General, described Labor as—and again, I think the press should put this to Dreyfus, if they're still asking him questions: does he stand by the comments he made in the second reading speech on the citizenship cessation bill, when he was the shadow Attorney-General, when he described the Australian Labor Party as fully supporting the move to a ministerial discretion decision-making model? I'm getting a little concerned. Did Mr Dreyfus actually mean this at the time? Again, he was the leader of PJCIS; he backed in, in a bipartisan manner, what the High Court has now struck down. In fact, he not only backed it in—as I said, they might have to put to him: 'You expressly welcomed it. Was that not true at the time?'

You also committed the Australian Labor Party, and you said that they fully supported the move to a ministerial discretion decision-making model. Now, you did fully support it at the time, because that's what you said. So I'm going to work on the basis that, at the time, the shadow Attorney-General and the Australian Labor Party actually were true to their words. They actually did work with us in a bipartisan manner. They actually did agree to the citizenship cessation bill. They stood by the move to a ministerial decision-making model of citizenship cessation. And I have to say: the only thing they can be doing at the moment is playing politics—playing politics, by saying that this is Peter Dutton, as the Leader of the Opposition, because, from what I can see, Mr Dreyfus, when he was the shadow Attorney-General, worked with us. This was bipartisan, as I said.

Now, the other thing I've just got to remind the chamber about is this. As I said, we're going to get rhetoric from the minister. I'd say I was disappointed, but I have to say I'd be disappointed if the minister didn't provide me with rhetoric. But the minister also made comment in relation to the NZYQ case. Again, I addressed this issue yesterday. But, unfortunately, the minister has, yet again, not actually said it as it was. So let's just have a look at what actually occurred in relation to NZYQ.

Despite what the minister has said, it's false to suggest that Mr Dutton intervened to grant NZYQ a visa—it's actually false; it doesn't matter how many times you say it, that doesn't change the fact that it's false. You can continue to say it, but it doesn't actually change the fact that it is false.

NZYQ would not be in Australia were it not for Labor's failed border protection policies. It was a terrible time in the lives of so many, because they allowed 50,000 arrivals on more than 800 boats. As I said yesterday, Labor are either playing politics with their rhetoric or they actually don't understand the immigration law, which is probably more to the point.

What actually did happen? What did Mr Dutton actually do, by operation of law? Well, he allowed a process to take place where those who arrived under Labor—the 50,000 illegal maritime arrivals; again, as I said, it was a terrible time for all, with 1,200 dead at sea and thousands of children in detention, under the former Rudd-Gillard-Rudd governments—could apply to have their claims for protection assessed by the Department of Home Affairs, immigration and border protection. There was no intervention—again, just rhetoric, misleading the Australian public. And no visa was ever granted to this individual. So, again, as I said, never let a fact get in the way of good rhetoric.

This is politics. I'm prepared to accept that that is how the Australian Labor Party operate, but I just want to be clear that, every time they stand up here today and say, 'The Leader of the Opposition when in government did this,' and 'The Leader of the Opposition when in government did that,' I am going to stand here and re-read out the facts. I am going to re-read out the facts so that the Australian people who are listening or who may one day read Hansard understand that they are being sold a pup by the current Labor Albanese government. As I said, Mr Dreyfus is out there giving a press conference. The press should actually say to him: 'Do you stand by what you said when you led PJCIS? Do you stand by what you said when you were the shadow Attorney-General, when you welcomed, in a bipartisan manner, the laws that we are currently debating?'

Minister, I appreciate you've taken on notice the drafting instructions. Could you also take on notice on what date drafting actually commenced? You've referred to both the Benbrika case and the Alexander case, which was handed down in June of last year. Why was the legislation not ready when the decision in the Alexander case was handed down in June of last year?

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

I want to take this opportunity to place a few matters clearly on the record. Firstly, obviously, as I've previously said, the Australian Greens oppose this legislation, and we'll give expression to that position by voting against the bill on the third reading. Secondly, it's important that folks listening to this debate understand that both Senator Cash and Senator Watt are spinning like yo-yos in relation to the claims that they are making. Let's be very clear about who is culpable for the laws that were struck down by the High Court. Both of them are culpable because both of them voted for those laws. And they voted for those laws in the face of warnings from the Australian Greens that they were unconstitutional. That is what happened.

This blame game that is now playing out across the chamber, where Senator Cash is attempting to blame the Australian Labor Party, and Senator Watt is attempting to blame the LNP, is simply pure spin. The only people in this chamber who are not responsible for the mess that we find ourselves in are the Australian Greens, because we are the only people who voted against the laws that the High Court found were unconstitutional. As part of our rationale for voting against those laws, we stated that it was likely that they would be found to be unconstitutional. Those are the actual facts, as opposed to what is claimed to be fact by Senator Cash and Senator Watt.

I am rarely on a unity ticket with Senator Cash, it has to be said, but she is right when she speaks about the bipartisanship that has existed on this issue. That, in our submission to the Australian people, is a large part of the problem. We see, time after time, a bipartisan race to the bottom on immigration policy in Australia, on refugee policy in Australia, on policy that relates to people who seek asylum in Australia. Unfortunately and tragically for thousands of people, we know where this race to the bottom ends. It ends in a dark place for our country.

It ends in refugees and people seeking asylum and migrants being demonised in Australia. It leads to them being brutalised either here in Australia or in places like Manus Island and Nauru. It leads to the creation of two separate classes of people in Australia based on people's citizenship status or visa status.

We hear Senator Cash urging the Senate to consider facts, when in fact what we have been facing over this broad debate over the last few weeks on a range of issues, including but not limited to the citizenship legislation we are currently debating and also including but not limited to the government's response to the recent High Court case which effectively rendered indefinite immigration detention illegal in this country, is a confected emergency created by the Leader of the Opposition, Mr Dutton, and the barefaced lie promulgated by the opposition that all of the people within the scope of the recent High Court decision are somehow hardened criminals, when in fact that is simply untrue. They have been so successful in repeating that propaganda over and over again, despite its baselessness and its fundamental untruth, that now we have Labor members repeating it as if it were true and we have people in the media repeating it as if it were true. Talk about a post-truth world that we are living in at the moment!

The facts of the matter are that many of the people caught within the scope of the High Court's decision have never been convicted of a crime in their lives and yet they are still being bound up in this race to the bottom, engaged in on a bipartisan basis, as has happened in this country since the MV Tampa appeared nearly a quarter of a century ago. It's this bipartisan competition to demonise and brutalise migrants, refugees and people seeking asylum in Australia. The truth has gone out the window, as it has gone out the window before. Do we remember children overboard? Do we remember that? Remember how Australians believed that people who were seeking asylum in Australia threw their children overboard, and it turned out to be a big fat lie. Do you remember that? The truth goes out the window. Mr Dutton's thrown it out the window in this debate and the Labor Party have capitulated in the most craven way, as they always do. We have walked down this path many times before and, tragically, we're going to walk down it many times again in the future. I confidently predict that. It is a dark and dangerous path that this country and this parliament walks down all too frequently.

I want to place very clearly on the record that there are a range of concerns the Greens have with this legislation. Fundamentally, what this does is create two classes of people before the law in Australia based on people's citizenship status. It creates one body of law for people who are sole nationals and it creates a completely separate body of law for those who hold citizenship in more than one country. It basically says, 'If you hold citizenship in more than one country, we're going to snatch your Australian citizenship away or at least provide the power for the courts to do so in certain circumstances.'

Citizenship is one of the most fundamental rights that a person can hold. It effectively gives you right of entry to a country and right of residence in a country and it entitles you to the rights of all other citizens in that country. Taking it away, if it is to be done, ought to be done in the most careful and considered way.

But here we find ourselves again taking away rights or severely curtailing rights—as we found ourselves doing yesterday on another fundamental human right, the right to liberty—with a bill being gagged in this place with that bipartisan lockstep from the major parties. We get 90 minutes today. How astoundingly generous! We got less than that yesterday to consider 70 pages of amendments and an explanatory memorandum of somewhere around 150 pages that was so weighty it literally had to be bound into a book to be put before senators. We were expected to debate those amendments in less time than we're getting for this bill today. On this bill, we are getting 90 minutes. This will be, I have no doubt, my only opportunity to make a contribution in the committee stage of this bill.

The Greens will, as we have in the past, proudly stand up against this erosion of fundamental rights in this country. In this case, it is the right to citizenship; yesterday, it was the right to liberty. We will stand up for a fair, decent and humane immigration system that treats refugees, people seeking asylum and migrants with the respect that they deserve, and we will hold out against this dark path that is being trodden by the major parties in this place.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I want to add my comments to this. Firstly, I will go to the minister's response in blaming the Liberal Party and especially Mr Dutton for the way this has all come about. Over the years we have had illegals going back to John Howard with the Tampa, and then with Rudd there were 50,000 people that wanted to come out to Australia—boat people, illegals, those seeking refugee status in Australia basically for economic reasons, not really because they were refugees. We saw 1,200 people die because of it. This has been a real problem in our country.

But I will go to the person in question here who we are speaking about in the chamber, NZYQ, and why Minister Watt is saying, 'We're cleaning up the mess of the Liberals.' I was in this chamber when we actually dealt with a lot of these issues and I remember there was bipartisanship. I agreed with this legislation as well and I saw Labor agree with this. What we were trying to do was make Australia a safe place because we didn't know the character of these people, who they were and whether they were former criminals from other countries. We didn't know. So we passed laws that were basically to look after the security of the nation. Labor were there. They voted every time. They supported this. I didn't hear them stand up and make comments about 'constitutional' and 'unconstitutional' or whatever. They didn't. They went along with the consensus of the time, the way the public were going and whichever way the wind was blowing. They knew they couldn't do any different but go along with it, which they did. It galls me to hear this comment now blaming Peter Dutton for this.

Also, NZYQ came into this country under the Labor Party because they lost control of the borders. They were warned about this. We had sovereign nation—

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

To try to be helpful, Senator Hanson, the bill—

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Climate Change and Energy) Share this | Link to this | Hansard source

Minister, what's the point of order?

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

It's on relevance. The bill we're dealing with is not about NZYQ; that was yesterday.

The TEMPORARY CHAIR: Minister, resume your seat.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I referred to the minister. He brought up NZYQ in his response. The minister brought up NZYQ in his response and went back to Peter Dutton, the minister at the time. So don't stand up and tell me this is not relevant. It is very relevant because, when I hear comments in this chamber that are misleading the Australian people, I will not have it. If blame lands at your feet then take the blame at your feet and stop backing away from it and trying to mislead the Australian people. NZYQ ended up in this country because of the poor laws that you had. We had boatloads coming in here. Over 800 boats came to the shores of this nation, and that is why we ended up in the mess that we are now.

This has to be dealt with. I am sick and tired, as are the Australian people, of the blame going across this chamber. The coalition have put up amendments to try to strengthen it so that this doesn't keep happening. The Australian people have had enough.

I have sat here and listened to the Greens. They are so righteous. They actually want to open the floodgates for 50,000 refugees. They would welcome everyone into the country. Can you imagine that? We can't even look after our own people in this nation and make sure that they have housing and have food on the table. The Australian people are suffering. Let's open the floodgates, regardless of whether they are true refugees, because they should be allowed to come into the country—that's their attitude.

They will open the floodgates to over 50,000 refugees. Where are they going to live? Who's going to feed them? Will they be on welfare? Will they ever work? Are they compatible with our national identity, our culture and our way of life? Are we going to have in our country the many problems that we see happening in other countries around the world? They can't control illegal refugees. They have no control over them whatsoever.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

They're not illegal.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I'll take that interjection: 'They are not illegal refugees.' We have immigration policies. We have a right to control who comes into this country—that's what it's all about—to protect our identity and who we are as Australians. We have a right to say yes or no, and that's exactly what this chamber and the other place have tried to do. You apply to be a migrant to this country and you go through a process. That's the way it's done. You don't just have people coming here.

The Greens have just completely lost me. I wish people would really understand what they stand for. Every time they stand up in this chamber I don't hear them fighting for the Australian people at all—not at all. It's always about refugees, other countries and everyone else around the world. That's what you portray to the Australian people. I wish they really understood what you stand for. I don't believe that you fully represent the Australian people. You worry about everyone else but the Australian people.

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

Our vote's way higher than yours.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Climate Change and Energy) Share this | Link to this | Hansard source

Senator McKim, you were heard in silence. Senator Hanson deserves the same respect. Interjections are disorderly. Senator Hanson.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Thank you. We're talking about the citizenship of these people. That's what it's all about. The High Court's decision was that the minister of the day cannot bring in punitive measures, and that can be a wide range of things. My understanding—and my question will go to the minister soon—is that it is the minister of the day who can actually strip someone of their dual citizenship. There are three reasons why a person stays in the country: they can't be sent back to their own country because of fear of execution, they are a genuine refugee and they will be made stateless if you strip them of their citizenship.

In the case of NZYQ the minister is talking through his hat because he actually blames former minister Dutton for the mess that we're in now. The minister knows that you cannot get a lot of these people out of the country, because they've destroyed their citizenship and other countries won't take them, so we're in this mess that we're in. I asked the minister yesterday—and remember that they've been in for a year and a half—how many times he has applied to have NZYQ deported and he said that we've applied to six countries. Why hasn't he been deported? Why sit there and blame former minister Dutton for him not being deported when you know you can't do it yourself? You haven't been able to. That's why we're stuck with them.

Minister, people want to know who has control now, at this time, over the stripping of citizenship. Can you answer my question?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I will respond to comments the minister has made. Unfortunately, in his haste to defend himself, the Attorney-General hasn't given Minister Watt the complete brief, so perhaps he does want to go back and ask the Attorney-General for the correct brief. Minister, you weren't referring to the laws that I referred to. You were talking about—and I assume the Attorney-General's office guy has gone and given you this to read out—the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018. You continued to work with us in a bipartisan manner. I was making reference to the Australian Citizenship Amendment (Citizenship Cessation) Bill 2020. As I said at the commencement of my comments, we can safely disregard anything that the minister has just said about legislation that was never considered by the High Court and that, indeed, never became law. These are the correct comments in relation to what the Attorney-General said about the legislation. Perhaps the Attorney can quickly update his brief for you and rush it in so you can correct the record. Just to ensure we're all on the same page, I want to quote:

Labor members welcome the move to a ministerial decision-making model of citizenship cessation.

And as I said, just for the benefit of Hansard, in his second reading speech on the citizen cessation bill the then shadow Attorney-General described Labor as 'fully supporting the move to a ministerial decision-making model'. That's just for the record to ensure the Attorney-General's comments are correctly recorded despite the brief that he clearly had raced into the chamber for Minister Watt to read out.

In terms of the legislation that we have currently before us, the Senate would be aware that it is now more than one month since the Benbrika decision. On 1 November this year—over one month ago now—together with the Leader of the Opposition and Senator Paterson, I wrote to the Albanese Labor government, and we actually requested that they bring forward this legislation. I'm going to read the letter into Hansard because of the rhetoric that we are hearing from the minister and indeed from the press conference that has been held earlier today. There's quite a bit of press in relation to that press conference unfortunately, and I have to say it's not faring well for the Attorney-General. This is the letter addressed to the Prime Minister, the Minister for Home Affairs and, at that stage, the Acting Attorney-General, and we said:

Dear Prime Minister, Minister and Acting Attorney-General,

We write in relation to the High Court's decision in the matter of Benbrika v Minister for Home Affairs, which was handed down earlier today.

Abdul Nacer Benbrika is a convicted terrorist who planned to conduct violent attacks against Australians on Australian soil. Mr Benbrika held both Australian and Algerian citizenship. He was convicted of serious criminal offences by due process of law following a trial by jury in the Victorian Supreme Court.

Shortly before the expiry of criminal Mr Benbrika's sentence, in November 2020, the former Coalition Government cancelled Mr Benbrika's Australian citizenship under section 36D of the Australian Citizenship Act 2007, acting in the best interests of all Australians.

The effect of today's High Court decision is to render section 36D of the Australian Citizenship Act invalid, and restore Mr Benbrika's Australian citizenship.

Section 36D of the Australian Citizenship Act was introduced with bipartisan support in 2020, by the Australian Citizenship Amendment (Citizenship Cessation)Act 2020. The intent of that Act was to allow the Australian Government to cancel the citizenship of convicted terrorists who had repudiated their allegiance to Australia, working within constitutional bounds. The drafting of the legislation was informed by the best constitutional advice available.

One consequence of the High Court's ruling is that convicted terrorists may remain entitled to the privileges of Australian citizenship despite repudiating their allegiance to Australia—even if they have actively planned to attack and kill other Australians, on Australian soil.

The Australian people should not be asked to tolerate this risk.

We ask that you bring forward legislation to address the High Court's ruling as a matter of urgency, and reinstate the Government's power to cancel the citizenship of convicted terrorists in appropriate cases. In the interests of all Australians, the Coalition will of course work cooperatively with the Government to ensure such laws can be passed without delay.

We note that in October 2022 the Albanese Government publicly committed to introducing new legislation to restore these powers but detail on the proposed legislation is yet to be released.

The Government must pursue every available avenue to ensure the safety of the Australian people. We note that, at present, Mr Benbrika remains in prison pursuant to a continuing detention order sought by the former Coalition Government in 2020. However, that order will expire this year, and if a further order is not granted by a court, Mr Benbrika may soon be released into the Australian community.

Just to confirm, that was the letter that I, Senator Paterson and the Leader of the Opposition sent to the Prime Minister, the Minister for Home Affairs and the Acting Attorney-General on 1 November.

That was, of course, the day that the High Court handed down its decision. We are now in December, so we are now five weeks past the date of the letter that we wrote and 18 months after the Alexander decision, after which, as we said in our letter, the government committed to restoring this regime. As I've said, in October 2022 the Albanese government publicly committed to introducing new legislation to restore these powers, but the detail has never been released.

Can I ask a question—unfortunately, it's going to have to be taken on notice, because I have a number of questions—on the procedural history of this bill in terms of when the policy work commenced, when the drafting instructions were given and when the drafting actually commenced? As to Mr Benbrika, though—he is, as we know, Australia's most notorious convicted terrorist offender and in 2008 was found guilty of leading a terrorist cell that plotted to blow up Australian landmarks—my questions are: Does this bill cover Abdul Nacer Benbrika? What consideration was given to these laws covering Abdul Nacer Benbrika? Does this bill cover anyone who has previously had their citizenship removed? What consideration was given to these laws covering anyone else who had previously had their citizenship removed? Mr Benbrika is currently subject, as I've stated, to a continuing detention order obtained by the former coalition government in 2020. It is due to expire on 24 December—so shortly. In the event that the bill doesn't cover him, what is the government doing about his case? Will you apply for a new continuing detention order or take some other step, or will Australians wake up on 25 December to the very nasty Christmas present that one of our most notorious terrorist offenders is being released back onto our streets?

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

I am certainly very much aware that the government has given consideration to what can be done about Mr Benbrika as an individual. I know that, because I have personally spoken about that with the home affairs minister. The powers that are set out in this bill will not apply to cases where an individual has already been sentenced—I think that's been explained to the opposition previously—but, if these individuals do commit further offences covered under this legislation, the Minister for Home Affairs may be able to make an application to the court to have citizenship cessation considered as part of sentencing. The amendments apply to convictions that occur after the commencement of the legislation, where the conduct occurred on or after 12 December 2015.

That obviously begs the question: why can't the legislation apply to the likes of Mr Benbrika or people who've already been sentenced? The short answer is that it is because Mr Dutton's laws were unconstitutional. The key finding of the High Court in the Benbrika case was that citizenship can only be stripped from someone by the decision of a court after the application of a minister and that the decision to strip their citizenship can only happen in the course of sentencing for an offence. Mr Benbrika obviously committed his offence some time ago. He was charged, convicted and sentenced some time ago and, because the laws that Mr Dutton had passed were unconstitutional, the opportunity for Mr Benbrika's citizenship to be stripped as part of his sentencing has passed.

If Mr Dutton's laws had been constitutional, then Mr Benbrika could have been stripped of his citizenship at the time, as part of his sentencing. But, because the laws weren't constitutional, we're now in a situation where he has been sentenced and there is no opportunity for the minister of the day to apply for his citizenship to be stripped as part of a sentencing process, because that sentencing process has already happened.

I agree it is deeply unfortunate that Mr Benbrika can't have his citizenship stripped of him under the laws being passed now. That is because his sentencing has occurred and what the court has found is that, to be constitutional, the laws require the stripping of citizenship to be done as part of the sentencing process. The effect of the recent High Court decision about Mr Benbrika is that he never ceased to be an Australian citizen. So the actions of the former government, in purporting to strip Mr Benbrika of his citizenship, were ineffective. They were unconstitutional. They were unlawful. In fact, Mr Benbrika never ceased to be an Australian citizen. Again, that is the direct consequence of Mr Dutton bringing in laws that were unconstitutional. As I've said, the powers that are set out in this bill, to enable someone to be stripped of their citizenship, will not apply to cases where the individual has already been sentenced, and that includes Mr Benbrika.

You've referred to the fact that Mr Benbrika is currently on a continuing detention order. Mr Benbrika remains in custody on a continuing detention order, which is due to expire on 23 December 2023. On 13 December last year, Mr Benbrika's lawyers filed an application for a review of his continuing detention order on the basis that new material had been made available to Mr Benbrika. On 27 February this year, the Attorney-General, Mr Dreyfus, made an application to the Supreme Court of Australia for an extended supervision order in respect of Mr Benbrika. On 20 June this year, the hearing of Mr Benbrika's continuing detention order review and the Attorney-General's extended supervision order application resumed in the Supreme Court of Victoria. As judgement in this matter remains reserved, it is inappropriate to comment further.

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

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

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

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

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

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

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

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

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

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

Thank you, Senator Cash. If anyone observing this debate was in any doubt that this is all just a political exercise from the opposition, I think we've seen once and for all that that's exactly what's going on here with Senator Cash's most recent contribution. Yet again, rather than actually trying to work with the government to get through legislation that is constitutional—what an amazing concept for the coalition that you might have laws that are constitutional and stand up in court!—and to ensure that these laws are robust and can stand up in court, unlike the laws that they passed when they were in government, they want to insert new amendments for the sole purpose of launching the kind of political attacks that we just saw from Senator Cash.

I'll come back to the point about judicial review of decisions, but, just to deal with the coalition's amendments that they've circulated, they're political amendments that have been submitted only for the purpose of lodging another political wedge. I guess maybe their purpose is to ensure that these laws are unconstitutional, because that's what the effect would be. What the government is doing here is not just putting in place a process to legally strip someone of their citizenship. We are actually expanding the number of offences that the power applies to. Under the current legislation that was brought in by Mr Dutton, which was deemed to be unconstitutional, someone could have their citizenship stripped if they were convicted of one of a number of offences, including terrorism, treason and advocating mutiny. What we are doing is adding additional points to do with convictions for things like espionage, foreign interference, foreign incursions and recruitment. What you'll see about all of those offences is that they have one thing in common: they go to someone's allegiance to Australia.

They are not firearms offences. They are not general criminal offences. They are offences that go directly to someone's allegiance to Australia, and that is the key to ensuring that these amendments remain constitutional.

The very serious risk that we face if this parliament agrees to the amendments that the coalition has circulated is that, yet again, we will be passing a bill that is unconstitutional and doesn't work. What we want to do, and what I think most senators in this chamber want to do, is put in place a system that allows for someone to be stripped of their citizenship when they commit offences that go against the interests of Australia, that show they don't have an allegiance to Australia. The very worst thing we could do is repeat the error of Mr Dutton and the coalition, who passed laws that were unconstitutional and that overreached for the sake of making a political point. That is what the coalition is yet again asking us to do in seeking to add to this bill over 50 extra offences that bear no resemblance whatsoever to the key point about someone's allegiance to Australia and, therefore, to whether they are entitled to have Australian citizenship. One of the offences that have been included by the opposition that would see someone stripped of their citizenship is the transporting of a firearm across a state border. I agree that is a serious offence and someone should pay the price for committing that offence, but it doesn't amount to repudiating someone's allegiance to Australia, and that is what is necessary to justify someone's citizenship being stripped from them and for that law to stand up court.

We can all come in here and make political points and add all sorts of offences to make us look tougher, but what you would be doing is trying, yet again, to pass laws that are unconstitutional. I really would have thought the coalition would have learned its lessons. They've got it wrong twice in passing such laws when they were in office, when they passed laws that were unconstitutional. What they're asking us to do today is ignore the constitutional risk for the sake of making a political point. We all in this chamber think that people who commit child sex offences are depraved individuals who should be punished, but if we pass those amendments from the opposition, we risk this legislation falling over, just as the last bill Mr Dutton passed fell over and the one before that fell over, just for the sake of scoring a political point. That's why the government's view is that we should pass the bill that has been introduced and we should refer the amendments on the other offences that the coalition have put forward to the parliamentary joint committee so that they can be examined. If the advice comes back that they can be included and it's still constitutional, fine, we should do that, but we shouldn't jeopardise these laws and a process for stripping someone for their citizenship just to make a political point.

I might point out that we've attempted to brief Mr Tehan, who is the shadow minister, about the constitutionality of these extra offences. We scheduled a briefing with him yesterday. He cancelled the briefing and has refused to engage further. We have attempted to fix this matter. The opposition just play political points.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Thank you, Minister.

The time has expired, Senator Hanson. In accordance with the resolution today, the time for consideration of the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 has expired. I will now put the questions on the remaining stages of the bill, starting with amendments circulated by Senator Thorpe. The question is that amendments (1) and (2) on sheet 2318 and amendment (1) on sheet 2323 be agreed to.

Senator Thorpe's circulated amendments—

SHEET 2318

(1) Schedule 1, item 4, page 7 (lines 8 and 9), omit "the whole of each period is to be counted", substitute "the periods of imprisonment, to the extent that those periods are to be served concurrently, are to be counted only once".

(2) Schedule 1, item 4, page 7 (lines 10 to 13), omit the example, substitute:

Example: A person is convicted of 2 serious offences and a court has decided to impose on the person in respect of the convictions 2 periods of 8 years imprisonment to be served concurrently. For the purposes of subsection (1), the total period of imprisonment is 8 years.

_____

SHEET 2323

(1) Schedule 1, item 4, page 4 (lines 26 to 29), omit "3 years" (wherever occurring), substitute "5 years".

Question negatived.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

by leave—I would like my support for Senator Thorpe's amendments noted.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator McKim, do you wish the same?

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

by leave—I do, thank you, Chair.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I order that it be recorded that the Greens and Senator David Pocock supported that amendment. I will now deal with the amendments circulated by the opposition. The question is that the amendments (1) to (5) on sheet 2282 be agreed to.

Opposition's circulated amendments—

SHEET 2282

(1) Schedule 1, item 4, page 5 (after line 22), after paragraph 36C(3)(b), insert:

(ba) a provision of Subdivision C of Division 80 of the Criminal Code (urging violence and advocating terrorism or genocide);

(2) Schedule 1, item 4, page 5 (line 23), omit paragraph 36C(3)(c), substitute:

(c) a provision of Division 83 of the Criminal Code (other threats to security);

(3) Schedule 1, item 4, page 5 (line 33), omit subparagraph 36C(3)(f)(v).

(4) Schedule 1, item 4, page 5 (after line 33), after paragraph 36C(3)(f), insert:

(fa) a provision of Part 5.4 of the Criminal Code (harming Australians);

(5) Schedule 1, item 4, page 5 (line 35), at the end of subsection 36C(3), add:

; (h) a provision of Division 270 of the Criminal Code (slavery and slavery-like offences);

(i) a provision of Division 272 of the Criminal Code (child sex offences outside Australia);

(j) a provision of Division 274 of the Criminal Code (torture);

(k) a provision of Part 9.4 of the Criminal Code (dangerous weapons);

(l) a provision of Subdivision D of Division 474 of the Criminal Code (use of carriage service for child abuse material);

(m) a provision of Subdivision F of Division 474 of the Criminal Code (use of carriage service involving sexual activity with, or causing harm to, person under 16).

The question before the committee is that the amendments on sheet 2282 be agreed to.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I will now deal with amendments circulated by Senator David Pocock. The question is that the amendments on sheets 2284, 2287 and 2288 be agreed to.

Senator David Pocock's circulated amendments—

SHEET 2284

(1) Schedule 1, item 4, page 6 (line 3), omit paragraph 36C(4)(a), substitute:

(a) the person is aged 18 or over;

(2) Schedule 1, item 4, page 6 (lines 27 and 28), omit paragraph 36C(6)(a).

_____

SHEET 2287

(1) Schedule 1, item 4, page 6 (after line 3), after paragraph 36C(4)(a), insert:

(aa) the person is not an Aboriginal or Torres Strait Islander person;

(2) Schedule 1, item 4, page 8 (line 12), at the end of subsection 36D(4), add:

; (d) information about whether the person is an Aboriginal or Torres Strait Islander person.

_____

SHEET 2288

(1) Schedule 1, item 4, page 6 (line 4), omit paragraph 36C(4)(b), substitute:

(b) the person is an Australian citizen, but did not become an Australian citizen:

(i) upon the person's birth or under section 12; or

(ii) under Subdivision B of Division 2 of this Part because the person was eligible under subsection 21(8);

(2) Schedule 1, item 4, page 8 (lines 25 to 29), omit subsection 36D(8), substitute:

Australian citizens to which this section applies

(8) This section applies in relation to a person who is an Australian citizen, other than a person who became an Australian citizen:

(a) upon the person's birth or under section 12; or

(b) under Subdivision B of Division 2 of this Part because the person was eligible under subsection 21(8).

Question negatived.

By leave, the Greens and Senator Pocock will be recorded as supporting those—although, Senator Pocock, since you did move it, I imagine that we could make that assumption.

Bill reported without amendments.