Australian Citizenship Amendment (Allegiance to Australia) Bill

I rise to speak to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015.

THE HON. MARK DREYFUS QC, MP

SHADOW ATTORNEY-GENERAL

MEMBER FOR ISAACS

SECOND READING SPEECH

AUSTRALIAN CITIZENSHIP AMENDMENT (ALLEGIANCE TO AUSTRALIA) BILL


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I rise to speak to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015.

 

This is a very serious piece of legislation. It deals with a topic of fundamental importance to our community. Citizenship, the full political and social membership of a national community, is a core human right. Article 15 of the Universal Declaration of Human Rights declares:

“1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

Australia was, through the work of Doc Evatt in the earliest years of the United Nations, intimately involved in the formulation and adoption of the Declaration. In the following decades we have become party to several international treaties which flesh out the content of the right to a nationality, including the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities.

 

Citizenship is a very special kind of right. As political theorist Hannah Arendt put it, it can be described as “the right to have rights”. Arendt, who like other German Jews was made stateless in the 1930s, had a first-hand understanding of just how important citizenship is. In recognition of this, Australia has also become party to international instruments which seek to prevent statelessness, most importantly the 1961 Convention on the Reduction of Statelessness.

 

When we legislate in this place on the topic of citizenship, then, we must be very cautious. We must be mindful of our obligations under international human rights laws, and of the essential values those laws codify.

 

But we must also acknowledge the special status of citizenship in Australian society in particular. Australia is a multicultural nation. Aboriginal and Torres Strait Islanders have lived on this continent for many tens of thousands of years, but the rest of us are migrants, and in the long view, very recent migrants indeed. Australia and Australianness cannot be defined by reference to race or creed. Citizenship is, and must be, what brings the great diversity of our community together. It is no coincidence that the development of a distinctive Australian citizenship, as opposed to British subjecthood, has run in parallel with the development of a modern, diverse Australian society. Any changes we make to the law of Australian citizenship must strengthen the bond that citizenship provides between all Australians.

 

This Bill provides for an extraordinary sanction – the loss of Australian citizenship and all of the rights that flow from it. This is clearly a very serious matter.


That said, it has always been recognised that citizenship involves mutual obligation. Australia owes important duties to its citizens. Citizens owe important duties to Australia, most basically a duty of loyalty. This is made clear in the Schedule to the Citizenship Act, which provides for a citizenship pledge reading:

“I pledge my loyalty to Australia and its people,

whose democratic beliefs I share,

whose rights and liberties I respect, and

whose laws I will uphold and obey.”

 

Australian law has long provided that where that duty of loyalty is breached in the most fundamental way, loss of citizenship can follow. Since at least the creation of Australian citizenship in the Australian Citizenship Act 1948, Australian law has provided that dual nationals who fight with enemy states during times of war can forfeit their Australian citizenship.

 

Much has changed since 1948. Wars are not often declared in the modern era – indeed Australia has not done so since 1948 – and the clearest threats we face often come from non-state actors. Accordingly, there has been discussion in this place and beyond since early 2014 about the possibility of updating the Citizenship Act to reflect these changed circumstances.

 

Under the leadership of the Member for Waringah the Government tied itself in knots on this issue. The Government engaged in all sorts of wild rhetoric. They sought to exploit the critical matter of citizenship for cynical political advantage, to the extent that members of former Prime Minister’s own Cabinet rebelled and we saw a series of extraordinary Cabinet leaks and internal fights within the Coalition parties.

Labor’s position, however, has been consistent. We have said all along that we see the sense in updating the existing law to reflect the circumstances of a new century. We believe that, just as a person who fights for an enemy nation at a time of war, a person who fights with a terrorist organisation hostile to Australia, or who commits serious acts of terrorism, should be liable to forfeit their citizenship in certain circumstances.

 

But we have always maintained that this update to our citizenship laws must be carefully designed. It must not operate too broadly or have unintended consequences. It must pay due regard to the importance of citizenship. It must not strip an Australian of a fundamental right unless that person has repudiated their right to citizenship by choosing to engage in conduct that is inconsistent with allegiance to Australia. It must accord with our international obligation not to make a person stateless.

 

While the Government under the leadership of the Member for Waringah was interested in political posturing, Labor has always been interested in getting the detail of this legislation right.

 

This Bill was introduced into the Parliament on 24 June 2015 and referred to the Parliamentary Joint Committee on Intelligence and Security.


Once again it fell to the Intelligence Committee to fix the many problems in the Bill that was proposed by this Government . The Committee held public hearings. It heard evidence from relevant agencies, from civil society, and from legal experts. It has produced a report of considerable weight, and has made 26 substantive recommendations for changes to the Bill or clarifications about how it will operate.

 

As a consequence the form of the Bill we debate here today, as amended in response to the report of the Committee, is vastly improved from that which was first introduced into the Parliament by the Government in June.

 

Improvements were made in each of the three limbs of this Bill – in respect of s 33AA and s 35, which provide for loss of citizenship by conduct, and in s 35A, which provides for loss of citizenship consequent to a conviction for specified criminal convictions.

 

As regards the two ‘conduct’ limbs of the Bill, s 33AA and s 35, the most important recommendation is that those provisions should operate only with respect to a person who is outside Australia. Labor accepts the need for a means of cancelling citizenship in the absence of a conviction in an Australian court. Most, perhaps all, of those who lose their citizenship under this Bill will already have left Australia, often with no intention to ever return. We accept that it is impractical to insist on a conviction in such circumstances. However, the Bill in its original form would have allowed for citizenship to be stripped in the absence of a conviction in circumstances where a person was in Australia and therefore available for prosecution in the usual way. The removal of this possibility is appropriate. It recognises that the deprivation of rights as serious as citizenship ought ideally occur through judicial process, with all of the protections that process entails.

 

The Committee also recommended very significant changes to the operation of s 35A, the new provision which would allow for the revocation of a person’s citizenship subsequent to conviction for certain offences.

 

This part of the Bill ought, at a level of principle, present the least concern. By relying on a prior conviction, s 35A contains within its operation the usual protections of the judicial process.

 

However, as originally drafted, this part of the Bill overreached very significantly. It went well beyond the kind of conduct which ought to attract the very serious sanction of revocation of citizenship. The Government, for reasons unclear to me, included in the original Bill a whole range of inappropriate offences. These ranged from the archaic – such as “unlawful drilling” – to the obscure –  “seducing a person serving in the Queen's Forces from his or her duty and allegiance” – to the deeply trivial – “damaging Commonwealth property”.


All of this was beyond the core purpose of this Bill. It went well beyond the stated intention of the Government and it went well beyond what Labor supports – the sensible updating of existing citizenship law. Frankly, it is incredible to me that the Government would even introduce into the Parliament a Bill which would strip the citizenship of a person for, say, defacing a postbox.

 

In the Intelligence Committee, we cleaned this mess up. As amended, the Bill will apply only to serious terrorist offences, and to the most serious national security offences, including treachery. This is appropriate.

 

What’s more, we have imposed a further discipline on the s 35A power by insisting that it only apply where a sentence of six or more years has been imposed for such an offence. Again, this provides the assurance of judicial oversight. It provides an assurance that this power will only be used where an independent court has ruled that the relevant criminal conduct is of a very serious kind. It ensures that this power will never be applied lightly. 

 

The Government asked the Committee to consider the retrospective operation of s 35A. Of course, it is unusual to legislate retrospectively, especially with regard to a matter as serious as the loss of citizenship. The Committee, accordingly, accepted only a very limited form of retrospective operation. As amended, the Bill will provide that the s 35A power can operate only on convictions for the relevant offences secured in the last 10 years, and only where a sentence of 10 years or more has been applied.

 

As we have with each round of national security legislation in this Parliament, Labor has also focused on oversight and transparency. The powers this Bill provides must not only be appropriately constrained, they must also be seen to be so. The public must be able to have confidence in this law and in its operation by the Government. We have provided for oversight and for review of this Bill.

 

These are all very important changes. Once again the Committee has proven its value in scrutinising and improving Government legislation. Once again, Labor has shown that we will take a bipartisan but not uncritical approach to national security matters, that we will work with the Government to keep Australians safe but that we will provide constructive input on how that is to be done.  And that we will insist on change where change is needed. I note in respect of every one of the matters I have listed, the Government has accepted the Committee’s recommendations.

 

There is one important matter that the Committee was unfortunately unable to fully address. As is recorded in its final report, the Committee heard evidence from a number of leading constitutional experts. Those experts raised serious concerns about the constitutional viability of the Bill. Naturally, Labor was concerned by this. We want this Bill to work. We want it to be free from constitutional risk. We asked the Government to answer the criticisms made in evidence to the Committee by releasing to us its legal advice on the Bill’s constitutional prospects, provided by the Solicitor-General. The Government refused. In lieu of the advice, the Attorney-General wrote to the Committee to assure us of the Government’s strong view that the Bill is constitutionally sound. I note that yesterday the Prime Minister Mr Turnbull was asked about this matter. He said he, too, was confident about the Bill’s constitutionality. The Prime Minister said:

 

"The government's advice is that the laws, if challenged in the High Court, would be upheld.”

 

I regret that the Government has not released its advice, even in confidence, to the Opposition. This would have been consistent with the spirit of constructive bipartisanship in which national security has been handled during this Parliament. In the absence of that advice, though, Labor must take the Government’s confidence about this Bill at face value. We accept its assurance to the Committee, to the Parliament and to the Australian people that this Bill will withstand constitutional challenge.

 

I commend the Bill to the House.

 

THURSDAY, 12 NOVEMBER 2015