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AGAINST – Bills — Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023; in Committee

Michaelia Cash

We've obviously now moved into the committee stage of the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023. I want to respond to a number of points that have been made to date to ensure the Senate understands what we are actually dealing with versus what a number of government members say we are dealing with.

The first issue is that Senator Sterle made a number of comments in his second reading contribution which, I would put to Senator Sterle, are actually wrong. What Mr Dreyfus warned about wasn't the thing that the High Court actually addressed. Of course, we don't want to let facts get in the way of what is good rhetoric. In fact, the measure that the High Court had a problem with, which was citizenship cessation by ministerial decision, was the one that Mr Dreyfus had himself welcomed. Senator Sterle also said—and we'll explore this during the committee stage—that the government had moved 'quickly and carefully'. I would defy anybody to say that 18 months—because that's what it's taken for this government to actually bring this legislation before the parliament, and we'll explore why the legislation is important—is quickly and carefully, unless, of course, you are a member of the Albanese Labor government and you believe taking 18 months to do something that is urgent is, in Labor's terms, moving quickly and carefully. Maybe it is. Maybe I am verballing Senator Sterle. Maybe he genuinely does believe, on behalf of the Albanese Labor government, that when something is urgent—and we'll go through the urgency shortly—the Labor Party taking 18 months to act on it is moving quickly. I, personally, am going to dispute that.

It was in June 2022 that the Alexander decision was handed down. June 2022: the Labor government is in power, Mr Albanese has been elected as Prime Minister, and the Alexander decision is brought down by the High Court. Everybody knows what the result of that decision is. Eighteen months later—because that is where we are—and it is December, we're heading towards Christmas 2023 and Senator Sterle believes that the Australian Labor Party, under Mr Albanese, has moved quickly and carefully. I would put to the Australian people that perhaps, by that measure—an 18-month turnaround—if the Australian Labor Party wanted to respond to something happening today, they'd bring it forward in the next parliament.

Let us also, though, make some comments in relation to why this bill is before the Senate. I want to remind those opposite of the provisions that were invalidated in the Benbrika decision—and similarly in the Alexander decision, which I just referred to, almost 18 months ago. You would think from the comments made by the Australian Labor Party that they actually opposed them. But, you see, the provisions that were invalidated by the High Court of Australia were not only bipartisan—in political terms, bipartisan means agreed between the two parties of government: the coalition and the Australian Labor Party—they were expressly welcomed by the Australian Labor Party.

The provisions that were knocked out by the High Court were sections 36B and 36D of the Australian Citizenship Amendment (Citizenship Cessation) Act 2020. The reason they were knocked out was that they operated to allow the removal of a person's citizenship by ministerial decision rather than by the courts. We're going to hear a lot of rhetoric over the next 85 minutes from the Australian Labor Party. Let's just put the facts on the record so the public can distil the rhetoric that we're going to hear from the actual facts.

Here is what the Labor members of the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, led by the current Attorney-General, Mr Dreyfus, said at the time in their additional comments on the PJCIS report: 'Labor members welcome the move to a ministerial decision-making model of citizenship cessation.' So it was not only bipartisan but also expressly welcomed by the Australian Labor Party. As I said, that was from the PJCIS members led by—you would not believe it given the statements he's currently making—the current Attorney-General. Here's another quote:

Fortunately, the move to a ministerial decision-making model of citizenship cessation will provide the Government with the flexibility to better manage the risk of potential adverse security outcomes (e.g. the Minister could decide not to cancel a person's citizenship where the cancellation would increase the risk the person poses to Australians overseas, or where citizenship cancellation would seriously damage Australia's international relations).

Again, that was Labor members of the PJCIS, led by the current Attorney-General. Again, that's bipartisanship—two parties of government working together and expressly welcoming these changes.

In his second reading speech on the Australian Citizenship Amendment (Citizenship Cessation) Bill, the then shadow Attorney-General described Labor as—I quote because we're going to hear a lot of rhetoric from the other side, so let's just put the facts on the table—'fully supporting the move to a ministerial decision-making model'. Of course, the thing that the Australian Labor Party fully supported was precisely the thing that was later found to be invalid by the High Court when it knocked out sections 36B and 36D on the basis that they 'repose in the Minister for Home Affairs the exclusively judicial function of punishing criminal guilt, contrary to chapter 3 of the Constitution'.

The truth is that the model that was found to be invalid by the High Court was developed and supported on a bipartisan basis—the coalition in government working with the then opposition, the Australian Labor Party—over a number of years. It didn't happen overnight. This was bipartisanship when it came to national security, through multiple inquiries by the PJCIS, to ensure that the privileges of Australian citizenship could be revoked in appropriate circumstances. Over the next 80 minutes, we are going to hear a lot of rhetoric coming from the government, but let us be very clear for the Hansard record and for those listening in: what was knocked out by the High Court had been worked on for years in a bipartisan manner and was expressly welcomed by the then shadow Attorney-General and Labor members in their report in the PJCIS inquiry. To come in here, as they have been doing in the media and as they will shortly do here, and purport that the thing found invalid was something other than a product of a shared process is base politics and nothing more and is disingenuous in the extreme.

For the Hansard record, and so that people understand what occurred: the Australian Senate—in other words, the people here—had already agreed to refer the operational effectiveness and implications of the amendments made by the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 to the PJCIS. Labor clearly forgot that because they still wanted me to move my amendment. I don't know why. Perhaps they have short memories. The Senate had already agreed to do that. On the basis that the Senate had already agreed to do that, it would appear to be irrelevant, in fact superfluous, to again move a second reading amendment to require the Senate to do what the Senate had already voted to do. But the Australian Labor Party work in very strange ways. Let's leave it to their confusion and nothing more as to why they forgot that the Australian Senate had already agreed to do that.

My question to the minister is: when were drafting instructions for this current bill first submitted to the Office of Parliamentary Counsel?

Long debate text truncated.


Date and time: 12:43 PM on 2023-12-06
Senator Pocock's vote: No
Total number of "aye" votes: 27
Total number of "no" votes: 30
Total number of abstentions: 19
Related bill: Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023

Adapted from information made available by