SUBJECT/S: Changes to the Citizenship Act



CHRIS HAMMER: Michelle Rowland is the Shadow Minster for Citizenship. She joins us now, good morning.

Good morning.

HAMMER: Citizenship is front and centre. You’ve seen the government’s legislation enabling dual citizens engaged in terror to be stripped of their citizenship, is it something Labor can support?

ROWLAND: Labor has always supported this in principle, broadening our citizenship legislation to ensure that it’s modernised to take into account some of these unfortunate circumstances with the likes of Daesh. The Bill was literally just introduced into the Parliament, it has a couple of different elements that I can go through but I think a substantive point to make is that this broadening to include those situations is something that Labor can support. It will be going to, as the Minister even alluded to, a parliamentary committee for examination and I think there are some important points to examine there, including the possible retrospective operation of these provisions.

HAMMER: To that in a moment, but first the ministerial discretion has been removed yet there will be some decision made somewhere by a group of public servants to strip citizenship. That will be challengeable in a court wouldn’t it?

ROWLAND: Well, just on my initial reading of this, it looks like for the provision that deals with renouncing citizenship by conduct, there still has to be a notice given by the Minister, and that notice states that it must be exercised by the Minister personally. So one presumes then that whilst taking into account advice from different agencies or authorities, the decision to give that notice is ultimately one that’s made by the Minister. But we will have to go through and see which provisions here are actually of a legislative nature or not. But I will point out here, and the Minister specifically said this in his second reading speech, that these provisions go without saying that they are reviewable either by the High Court as having originating jurisdiction, or by the equivalent court under section 39B of the Judiciary Act.

HAMMER: So are you confident that this legislation would survive a challenge in the High Court?

ROWLAND: I’m not able to come to a conclusion such as that, but certainly looking at the way it’s been drafted it has been structured in a way that I think tries to account for potential challenges. It looks like it’s been drafted in a way that is consistent with other forms of legislation that we’ve seen. But I think it’s important for the Committee to go through this, and my understanding is that the government has based this on further advice as to the constitutionality of it. Everything else aside, objectively, every Member of Parliament would want to be debating and voting on legislation in which we are confident that it would not be struck down. And one would hope that that has been the case here and I’m confident the committee will be examining that as well.

HAMMER: Now not included in the legislation as yet but the government is considering, as you said, refer to committee the possibility of making this legislation retrospective. That’s always problematic. What’s Labor’s view on making it retrospective?

ROWAND: We recognise how important these provisions are, and national security - the obligation of governments to keep their country safe - is always paramount. Retrospective action is problematic in some circumstances but that’s not to say that that can’t be accounted for here. There could be very good reasons why we need to have this retrospective in nature. And there might be things that myself and the parliament aren’t even aware of, that our security agencies are about why they might need to have this made retrospective. So I would sincerely rely on the advice that’s provided to the committee and I think it would be a very thorough process looking into that as well.

HAMMER: This legislation is quite different from what was initially proposed. The ministerial discretion is gone or largely gone, also the ability to strip citizenship from sole Australian citizens to render them stateless. Do you get the impression that the government is trying to go as far as it possibly can in an attempt to wedge Labor politically on this?

ROWLAND: We’ve just had the legislation introduced and I think it would be improper for me to make assumptions about their motives in bringing forward the Bill as it is drafted now. What I can say is based on fact, and that is we know that there was deep division within the Cabinet on this. There was deep division about the process by which this proposition was originally brought to the Cabinet, and commentators such as Amanda Vanstone were not shy in coming forward and saying they disagreed with that. We also see the talking points that the government had for their own side, attempting to wedge Labor on this issue, in the end wedging themselves. But I can tell you here and now, I have been saying for several weeks now, in fact for several months now since this was proposed, that Labor agrees that we need to do everything we can to keep our country safe. The Citizenship Act, these specific provisions, had never been updated and had certainly never been exercised or considered by a court in the way in which we need to have them operate in practice today. So I think that all along Labor’s position has been we need to keep our citizens safe, we need to have modernised provisions that account for that. So I’m just pleased that legislation is now before the Parliament and it’s going to be considered thoroughly.

HAMMER: Most of what we’re talking about is abstract legal principle but we have a case now of evolving with the reported deaths of Khaled Sharrouf and Mohamed Elomar that Sharrouf’s widow and her five children may now be seeking to return to Australia. Her mother has made a plea for the government to consider this. Given it’s not the men but the wife and the families, what’s your view on that?

ROWLAND: Well this is obviously a contemporary application here and we could see this as a potential test case even of those possibly retrospective provisions that we’ve been discussing. I think we can say two things for certain. Firstly, and of course this would have to be confirmed by authorities and so forth, it appears that the widow in this case made a conscious decision to go. That, as I said, is subject to any other evidence that may be there but there are laws in place already which she would have to answer to. The children, look, I agree with the comments that have been made that those children had no control over what was happening and I think that it is the most abhorrent thing to take children into that situation. It is, as Bill Shorten said, akin to child abuse. These children will have to undergo intensive trauma counselling as a start, one would expect. My thoughts are specifically with the children. How we end up dealing with this and whether we have existing laws that we’ll actually be able to apply in these circumstances is a real unknown.

HAMMER: Realistically, those children could get that kind of trauma counselling and treatment if they returned to Australia. They’re not going to get it anywhere else.

ROWLAND: That’s a valid point and I think this will be a challenge for our security agencies, this will be a challenge for all of us as policy makers but I think in the end the innocence of children in these matters needs to be taken into account. But I have, to be honest, personally I have limited sympathy for the widow in these circumstances if indeed she made a conscious decision to act the way she did.

HAMMER: It is hard to imagine repatriating the children and cancelling the mothers passport and saying she can’t come back. The alternative I guess is that she comes back and faces charges and ultimately probably prison. Is that the kind of result that maybe we have to consider?

ROWLAND: I think this is problematic on so many levels. I think it would be difficult for me to comment with any more authority on the hypotheticals here. I think this is something we are going to have to grapple with and I just hope that we don’t have too many more cases like it and laws such as these act as a deterrent.

HAMMER: You are expressing some sympathy for the children, that it was out of their control. But I wonder when does someone stop being a child, whether the law is 16 or 18 because we are seeing young teenagers going off to fight, so young men. They might be 14 or 15. There was a case of an English 14 year old trying to recruit people in Australia. What’s the cut off?

ROWLAND: Absolutely valid point, and we even have debates in our society even now outside of this prism of national security, about when is a young person either able to enter into contracts or be responsible for what they do. I think the most constructive thing I can say here is ultimately we need to be doing everything we can to get these people out of the clutches of being able to be so influenced that they think the only way and their best alternative is to go off and join organisations such as Daesh. I think ultimately we need to be as a government, but also as a parliament, making sure that we do everything we can in measures to make sure that these people aren’t groomed in this way. We need to make sure that money is spent effectively and that it’s spent promptly.

HAMMER: Okay. Michelle Rowland, thanks for your time today.

ROWLAND: My pleasure.