Local, Independant and Effective

Citizenship laws must be strong and not open to legal challenge

Posted November 24, 2015


CATHY McGOWAN (Indi) (19:00): I rise to speak to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and explain to the House why I will not be supporting this bill. My opposition to the bill is not directed at the intent or purpose of the bill. It is focussed very clearly at the inclusion of a retrospective provision and, under the cloud of uncertainty, on the constitutional viability of this bill. I know that the bill has been amended following recommendations from the Joint Committee on Intelligence and Security, and there have been a raft of necessary amendments. But it appears that, even after the amendments have been made, the bill may be constitutionally vulnerable, and, if this bill is so very important and critical to the health, safety and welfare of all Australians in the face terrorism, it should be invincible.

On 24 June this year, when the minister introduced this bill into this House, he affirmed that he was implementing a commitment made by the government 'to address the challenges posed by dual citizens who betray Australia by participating in serious terrorism related activities'. The initial bill was roundly criticised by legal and constitutional experts. It raised significant questions relating to human rights, statelessness, citizenship and the limits of executive power. Many of these criticisms have now been addressed.

My reasons for not supporting this bill differ markedly from the reasons I failed to support the tranche of national security bills previously presented by the government. In regard to the earlier bills, when bills of such significance are considered necessary, it is imperative that everybody—individuals, organisations, communities and businesses—have adequate time to scrutinise and comment. The lack of independent scrutiny of the earlier bills, combined with the lack of time given for members and senators to consider these complex bills, formed the basis of my nonsupport.

The bill here today has taken a more considered and consultative pathway. I commend the government for taking the time necessary to consult and listen before bringing this bill on for consideration by the House. I note that the joint committee received more than 40 written submissions and conducted three public hearings with a broad range of legal groups, academics, non-government organisations and government agencies. The bill, as now amended, reflects that the government has listened and acted, to a degree, and this is good.

However, in this parliament we focus on the rule of law. Our processes and procedures work to ensure that we have the highest possible standards of government and the best outcomes for the people of Australia. The integrity of the rule of law is critically important to me in my role as a law-maker in this parliament. The central element of the rule of law is that laws are capable of being known in advance so that people subject to those laws can exercise choice and order their affairs accordingly. It follows that laws should not retrospectively change legal rights and obligations or create offences with retrospective application. Retrospective laws make the law less certain and reliable, and a person who makes a decision based on what the law is today will be disadvantaged if the law is changed retrospectively. From my perspective, enacting a retrospective law weakens the rule of law and has the potential to lessen the level of confidence the people of Australia have in us as legislators.

Professor Anne Twomey, a professor of constitutional law at the University of Sydney, notes that the part of the bill most vulnerable to attack would be the retrospective provisions for people who had already been convicted of certain offences. I share Professor Twomey's concern on this issue. But, in this case, it is not only the retrospective nature of the legislation that worries me and my constituents. The bill blurs the line between executive power and judicial power where the minister can, at a stroke of a pen, remove a person's citizenship. Constitutional lawyer, Professor Twomey, has said that the issue was whether removing a person's citizenship 'would be treated by the courts as something that is akin to punishment and therefore exclusively judicial in nature'. I note that the shadow Attorney-General in his speech on this bill in this place on 12 November raised concerns with the constitutional viability of the bill. Ultimately, the opposition has chosen to accept the government's advice that it is constitutionally sound.

Citizenship brings with it rights and obligations. Clearly it is not a one-way street. It provides us with the right to political participation in the life of the community, the right to vote and the right to receive certain protections at home and abroad. This bill speaks to the very heart of our obligations as a citizen, obligations that we have whether we are a citizen by birth or by naturalisation. I know that many others have referred to the pledge to citizenship that is read out across Australia every week by new citizens, and I know that we, as members of parliament, frequently accept the pledge:

From this time forward,

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.


Whether we are citizens by birth or naturalisation, this pledge enshrines the rights and obligations that all Australians share.

For us here today, the security of our nation and our people is paramount, and I fully support the government taking steps to introduce legislation to ensure the safety and security of Australia and its citizens. However, it must be good legislation. My opposition to this bill is not directed at its intent or purpose. It is focused very clearly on the inclusion of a retrospective provision and the cloud of uncertainty over the constitutional viability of this bill. Thank you.

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