Speeches Chris has made in the Australian Federal Parliament.

Bills - Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 - Second Reading

September 02, 2020

Mr HAYES (Fowler—Chief Opposition Whip) (11:27): I, too, would like to make a contribution on the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019. I make it clear from the outset that Labor will be supporting the passage of the bill, but I do wish those opposite would have regard to the amendment that has been moved by the opposition in relation to this matter. We welcome the fact that the bill picks up many of the recommendations of the Independent National Security Legislation Monitor. I say 'picks up many' because it doesn't pick up all those recommendations. Some of those recommendations have also been supported by the Parliamentary Joint Committee on Intelligence and Security. I will come back to those.

I want to emphasise the fact that Labor will always work with those opposite when it comes to issues of national security and safeguarding the nation and its people. These are things that should be beyond politics and certainly beyond the sabre rattling that goes on when we talk about the issue of immigration and refugees. This debate must be contained to addressing issues of national threat, particularly as they relate to terrorism. Having said that, the simple fact is that, unfortunately, the Australian terrorism threat level still remains at 'probable'. This means that there is credible intelligence from the security agencies to indicate that individuals or groups continue to have an intent and a capability to conduct terrorist attacks against our nation.

In this environment, it's important that we strike the right balance to ensure that our laws keep Australia as a nation, and its people, safe from the threat of terrorism. The bill amends the current terrorism-related citizenship loss provisions for dual citizenship in the Australian Citizenship Act 2007, to which amendments were passed in 2015. I might add that those amendments were passed with bipartisan support. The citizenship loss provisions were always intended to be part of a suite of measures to protect the community from terrorism. The advice of the Independent National Security Legislation Monitor and the PJCIS was that citizenship loss because of terrorism may be necessary and proportional, in some cases.

But, in effect, the bill changes the way in which citizenship is lost, by moving from the automatic loss-of-citizenship model to a ministerial decision-making model. This
addresses issues where it may be the case that an individual Australian citizen has ceased to be an Australian citizen under law but where the government may not even be aware of it. Labor has previously and consistently criticised the automatic loss model and advocated a decision-making model where the decision is to be made by the minister.

The Independent National Security Legislation Monitor recommended in 2019 that automatic loss in the current model should be repealed urgently and replaced with a decision-making model. It determined these measures to be, effectively, uncontrolled and uncertain. It really should fall to the minister to make a determination, and the minister's decision-making process could be subject to judicial review. It's also a measure which is welcomed by the Law Council of Australia, which noted the INSLM's comment that automatic loss of citizenship by conduct is 'not a necessary or proportionate response to the threat of terrorism'. Similarly, ASIO has emphasised that the blanket, automatic cessation of citizenship measures introduced in 2015 may be counterproductive. They said:

There may be occasions where the better security outcome would be that citizenship is retained, despite a person meeting the legislative criteria for citizenship cessation—

because, they said—

In some instances, citizenship cessation will curtail a range of threat mitigation capabilities available to Australian authorities.

Essentially, what ASIO is saying there is that there could be various options which are curtailed if this is just a blanket action taken simply because of an individual's conduct or a group's activity. There may be other things in play which need to be considered, and it's appropriate for those to be considered by the minister responsible.

The bill also introduces a range of other changes, including amending the sentencing term threshold, from six to three years, for which a person convicted of a specific terrorism offence may be considered for citizenship cessation. This would lessen the period for the new sentencing threshold to three years for conduct engaged in on or after 29 May 2003. Another change is to the stateless test so that the minister is not permitted to make a citizenship cessation if the minister is satisfied that the person would then effectively become stateless. It also amends the provisions for giving notice of a citizenship cessation, including the provision where the determination to withhold notice not being revoked within five years is automatically taken as being revoked. And there is a new process for revocation of citizenship cessation determinations by which the person may apply to have the determination revoked and where they will ultimately have the ability to review the minister's decision in a court, through judicial review. These are significant changes in the bill which is before the House.

While we welcome the ministerial decision-making model for the citizenship cessation, in this bill the government has still not addressed a number of key issues, including some of the recommendations by the Independent National Security Legislation Monitor. These include the retrospective application of provisions for the relevant convictions and the reduction of the sentencing threshold for cessation based on conviction for certain offences. Other issues are also noted, including the lack of recourse to a merits based review under the bill, with judicial review the only option under this bill that would be available in relation to the minister's decision. That means that this will be an inadequate oversight of the minister's power, we would suggest. There are also other issues posed by the changes in respect of the statelessness test under the bill, increasing the risk of a person becoming stateless. The measures will also allow a minister to make the citizenship cessation determination if reasonable but mistaken matters are brought before the minister. Therefore, other than simply waiting for final judicial review, there is no prospect of the minister having the option of conducting a merits based review of the decision.

As I said, we support the passage of this bill. We think the government has introduced a number of provisions which will ensure that the provisions for cessation of citizenship for dual citizens occurring due to issues of terrorism have been fine-tuned to ensure that the minister is the decision-maker, as opposed to the more legalistic situation where the actions would be the sole determinant of whether a citizenship would be revoked. We note the fact that the minister's decision would be subject to solely judicial review and presumably through the Administrative Appeals Tribunal. These are reasonable matters, and it is reasonable that the decision be made by the minister responsible, as opposed to simply relying on automatic revocation of citizenship. I support the bill. I also support the amendment which accompanies this bill. I would request those opposite to have regard to that amendment.