We are Australian either by birth or by choice and most people would agree that citizenship is a defining feature of someone's identity. For many people, it is who they are and for others, including dual citizens, it is often just one part of a broader cultural make-up. For some, it is less about identity and more about the legal and constitutional guarantees and the freedoms we enjoy as citizens of a free and democratic nation. It obviously means different things to different people but the common thread is that it means something. It is intrinsic and it is important.
One of the great privileges, and I am sure all my colleagues here will agree, of being an elected member of this place is attending our local citizenship ceremonies. You only have to witness the emotion that pours out of these new Australians who have made the decision to become citizens of this land to know that it means something; in fact, it means a lot. That is why when we are dealing with proposals such as this that seek to amend Australian citizenship law, we must proceed in a methodical and thoughtful way.
There is no doubt that terrorism remains a serious threat to Australia's national security and the number of Australians fighting with terrorist groups abroad or supporting them from Australia remains deeply concerning. Labor has always said it is appropriate to update our citizenship laws to deal with the nature of conflict in the 21st century. And it has long been Australian law that a dual citizen who fights with an enemy state against Australia will forfeit their citizenship. In modern times, it is appropriate to extend that principle to those who fight for terrorist groups. So it is therefore disappointing that, like so much of the government's national security agenda, this bill, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, has unfortunately been characterised by poor process and, in many cases, cheap politics. And I think it is important that we go over some of the process of how this bill got here.
On 26 May this year, an article in The Sydney Morning Herald reported 'Cabinet revolt over Tony Abbott and Peter Dutton plan to strip Australians of citizenship'.
According to Peter Hartcher and James Massola's piece:
“Six members of the Abbott cabinet have risen up against an extraordinary proposal to give a minister the power to strip an Australian of their sole citizenship.”
The report goes on to say:
“According to participants, Senator Brandis, in opposing the plan, told the cabinet meeting: "I am the Attorney-General. It is my job to stand for the rule of law."
Mr Joyce put to the meeting: "Isn't that what we have courts for?"
Mr Andrews is said to have pointed out to the meeting that, if concern about the proposal was so widespread, community concern was likely to be even greater.
Because the idea had divided cabinet's national security committee, it was not presented to Monday night's cabinet meeting as proposed law but as part of a "discussion paper".
The six-page discussion paper was distributed during the meeting, angering some that it had not been circulated in advance, as matters for cabinet are supposed to be. Mr Turnbull asked Mr Abbott in the meeting whether The Daily Telegraph had been briefed on the idea for Tuesday morning's newspaper, according to people present. Briefing the newspaper, a favoured channel for leaking the Prime Minister's moves in advance, would have effectively pre-empted the cabinet, which met from 7pm. Mr Abbott replied that the newspaper had not been briefed. Page five of the Daily Telegraph on Tuesday morning carried a report that said in part:
Prime Minister Tony Abbott will announce today, after cabinet last night approved the policy, that a bill will be introduced before the end of June that would strip dual national terrorist sympathisers of their Australian citizenship.”
This bill was then brought to the parliament on 24 June this year and was met with an array of concerns by the opposition and many leading constitutional experts.
The bill was then sent to the Joint Parliamentary Committee on Intelligence and Security, which received a number of written submissions and evidence during hearings from constitutional experts. This process raised some very serious concerns about the constitutionality of this bill and explored whether it would be struck down by the High Court. I would like to acknowledge the work of the Chair and Deputy Chair of that committee, the members for Wannon and Holt respectively, and the work of committee member, the member for Isaacs. The committee heard a range of concerns from a number of witnesses. Constitutional expert Professor George Williams noted that the bill before the committee stage was the most 'problematically drafted bill' he had ever seen, with more constitutional problems in it than any he had given evidence on. As reported in the Sydney Morning Herald:
Professor Williams had "no doubt" such a law would be challenged in the High Court and had already been approached by "prominent solicitors" who had clients facing charges that are included in the bill:
"It's such an obvious one to bring a challenge to; I don't see why they wouldn't to escape loss of their citizenship."
The draft bill was also dissected by constitutional law professor Anne Twomey, who noted that the inclusion of minor offences suggests 'chaos' and inexperience in the drafting of the legislation. Professor Twomey told ABC radio:
“If you intentionally destroy or damage any commonwealth property, that's it, you've automatically lost your citizenship.”
As well as the committee process, the government launched a discussion paper entitled Australian citizenship—your right, your responsibility and held a number of public meetings. This process was led by the Assistant Minister for Multicultural Affairs, and then Parliamentary Secretary to the Social Services Minister and the Attorney General, Senator Fierravanti-Wells, as well as the member for Berowra, who was appointed the special envoy for citizenship.
From day one this process has been plagued by inconsistency and inadequacy.
Most notably, we are still waiting on the outcome of this process, despite the fact that this bill is now being debated. As part of this process, the government released a glossy booklet littered with errors of substance and also basic proofing errors. According to The Conversation website, which is instructive:
“The Abbott government’s discussion paper on the rights and responsibilities of citizenship calls for a “national conversation” on the issue. Unfortunately, the paper is akin to a push-polling exercise. It is both tendentious and misleading.
Most of the paper is devoted to framing citizenship in a way that is conducive to the government’s proposal to strip dual nationals involved in terrorist activities of their citizenship. Notwithstanding the title–Australian Citizenship: Your Right, Your Responsibility–the paper repeatedly talks of citizenship as a privilege, not a right.
“Privilege” is intended to convey something that should be valued and cherished. But, in legal terms, a privilege is something the government confers and can take away.
In this second sense, the language of “privilege” pre-empts a central issue for debate. Is Australian citizenship “conditional” on a ministerial assessment that someone “deserves” it? Should it be revocable on ministerial suspicion that a person has committed an offence?
Should there be any doubt about the government’s answer, the paper concludes that the privileges of citizenship:
… are fundamentally linked to an ongoing commitment to Australia and participation in Australian society.
Citizenship is a contract by which we all abide.”
I put it to this House, that this whole exercise was a deception. It was an attempt to give the appearance of consultation when in reality the government had predetermined the outcome. It is a disgraceful way to treat this vitally important aspect of our democracy and identity. The flaws in this process do not stop with this booklet. According to the border.gov.au website, submissions to the discussion paper closed on 30 June 2015. These submissions have never been made public, and according to a range of stakeholders in the settlements and multicultural areas whom I have spoken to, many did not even know the process was underway.
Then on 20 August 2015, the Minister for Immigration and Border Protection, the then parliamentary secretary and the member for Berowra held a press conference announcing they would be conducting public meetings on the discussion paper—the discussion paper that had already stopped receiving submissions. Again, this process was rushed and lacked direction. The announcement, as I said, was on 20 August and the first meeting was held in Hurstville on 24 August. I am also reliably informed that the meeting in Tasmania was predominantly comprised of departmental staff. On top of all this, the government has still not produced a final report or response to this process. The government has failed to make the submissions public, it has failed to properly consult with the sector and it has not got anything to show for it—and here we are debating a bill that this process should have informed.
It is no surprise that sections of the community are left scratching their heads. As reported by Sarah Martin in The Australian:
“Community advocacy group Muslim Voice said the government should wait until it considered the findings of a national consultation process tasked with gauging community views on potential changes to citizenship laws and the "privileges and responsibilities" of Australian citizenship.”
According to Australian Muslim Voice President, Diana Abdel-Rahman:
“All of that work has been done: if it is not actually going to be taken seriously, then what was the purpose?”
This process has been a complete debacle. It was an attempt to give the impression of consultation when in fact there was no meaningful consultation going on. I call on the government to release these submissions and a response to them. If people went to the trouble to participate, we should at least recognise the value in that.
I now turn to the substance of the bill. From the outset, Labor made it clear that we were willing to support a sensible updating of our citizenship laws, which recognises that those who take up arms against Australia should lose their citizenship. We believe that the legislation introduced by the government—and with the recommended changes set out by the PJCIS—represents a faithful updating of those laws. This means that only persons who have been convicted of a terrorist related offence or who are overseas collaborating with terrorist organisations can have their citizenship revoked. This represents a far narrower and more targeted set of amendments than those which were first considered by the cabinet and the National Security Committee back in May.
We think that this package does represent a sensible updating of our laws that deal with a legitimate national security concern: that, unfortunately, we have Australians who today are fighting in the conflict in Syria and Iraq. When that conflict is over, the relationship between those people and our country will confront us with difficult issues that we will have to face. The parliament has been dealing with this over the last couple of years. The foreign fighters legislation is an example of that, and these amendments, this package, represents another tool we can provide to our national security agencies to allow them to keep us safe.
At the same time, there has been considerable anxiety amongst many Australians that this debate might somehow render dual citizens as lesser Australians. This must never be the case and I say firmly to the Australian people that Labor will never allow this to be so. Dual citizens are just as Australian as anybody else, and it is very important that nothing is put before the parliament that seeks to erode that principle. We believe that this package honours the status of all Australians while dealing with a very complex issue.
A number of constitutional questions have been raised by legal experts during the course of the hearings of the committee. We frankly retain some anxiety in relation to the constitutionality of this legislation, but I note the letter that has been provided to the committee by the Attorney-General assuring the government's confidence in the constitutionality of this bill. In his letter to the committee the Attorney-General states:
“I can assure you that the Government has received advice from the Solicitor-General, Mr Justin Gleeson SC, that, in his opinion, there is a good prospect that a majority of the High Court would reject a constitutional challenge to the core aspects of the draft Bill.”
It certainly would have been better if the Solicitor-General's advice had been provided to the committee, as requested, but given the national security issues involved in this, Labor will not stand in the way of this legislation on this issue alone. Suffice to say, at the end of the day it is for this government to ensure legislation it puts before the parliament is constitutional. That is an issue for the government.
In summing up, the Labor Party has always agreed with the principle of this legislation. It makes sense to update our laws to reflect the times, as unfortunate as that requirement may be. I will reiterate how troubling the process has been, by the government, to get to this point. It has been characterised by incompetence and, in some cases, cheap politics. I would have thought something so important would have been treated with more contemplation and care.