The human rights commissioner has described the bill to strip citizenship from dual nationals as “striking at the heart” of Australian multiculturalism.
Gillian Triggs told the parliamentary joint committee on intelligence and security that Australian dual citizens would want to moderate their behaviour because the language of the bill, which leads to automatic loss of citizenship, was “so vague”.
The bill states the law is needed “because the parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed the bond and repudiated their allegiance to Australia”.
The committee heard on Tuesday that about 30% of the Australian population qualified for dual citizenship and, in some cases, Australian-born citizens are unaware they qualify.
“It does strike at the heart of Australian multiculturalism and our migrant status,” said Triggs.
“So many of us can go back to our migrant background and I think there are many people feeling a little nervous about the broad language of this bill and they qualify as dual nationals.
“I think it’s an extremely serious step to be taking in Australia that doesn’t seem to be focused on the egregious acts of terrorism as one might have expected.
“It’s unnecessarily broad and vague and it would be far better to have a much more focused piece of legislation that really does strike at those people who are acting in a way that constitutes a terrorist act.”
The parliamentary committee was hearing evidence from lawyers, academics and human rights, multicultural and refugee groups on the effect of the bill that revokes Australian citizenship from dual nationals suspected of fighting for terrorist organisations.
The government is also considering whether to strip Australian citizenship from sole nationals but has not yet drafted legislation.
Triggs said the dual national bill represented “new territory” for Australian law, with no precedence in the courts.
“It is at least rational to say that the current language and structure of the bill could easily have a chilling effect on people’s behaviour and that may very well be what the government desires,” she said.
“But I think that needs to be spelt out properly to the public and in the bill itself.”
Government members, including the Coalition whip, Andrew Nikolic, and the government’s special envoy on citizenship, Philip Ruddock, challenged Triggs.
Nikolic asked if Triggs would consider that a person had severed their citizenship bond if they planned an incident involving a backpack bomb, a pipe bomb at a marathon, or the Lindt cafe siege.
“Of course an answer to that would have to be the most obvious examples which one could argue that bond had been broken, especially if were done for ideological reasons that were attacking Australia and Australians,” Triggs said.
“The key point is that under the notion of the separation of powers, it is the function of the court to make the determination as to whether the act is one that would meet this legal definition and whether the legislation is necessary and proper to meet that objective.
“What I think is not the key point. It’s not for executive to be passing laws along these lines and then make judgments as to whether the laws have been breached.”
Nikolic suggested Triggs’s submission talked about loss of human rights of suspected terrorists without the same “articulation” about the rights of victims of terrorist acts.
“Obviously acts of terrorism are one of the most serious of breaches of human rights,” she said.
Nikolic also wanted to know how “comprehensive briefs of evidence” could be compiled from war zones against suspected terrorists.
“Obviously it is a great deal more difficult to do that with any accuracy, but that of course should set off warning bells as to whether or not one should use as serious a penalty as loss of citizenship in an environment where it is extremely difficult to get accurate information or evidence,” she said.
Triggs accepted it was not going to be easy to get the kind of high-level evidence that one would require in a criminal trial in Australia, but it was not unreasonable to have “a proper rule of law type process”.
The immigration department, the attorney general’s department, the Australian federal police and the Australian Security Intelligence Organisation (Asio) appeared after Triggs on Wednesday but most of the evidence was heard in camera.
Michael Pezzullo, secretary of the immigration department, primarily spoke for all agencies present.
Labor’s shadow attorney general, Mark Dreyfus, questioned the government’s proposal which would allow citizenship to be stripped for damage to commonwealth property. The committee has been asked to consider whether to apply the law retrospectively, a feature which has attracted criticism from the Human Rights Commission among others.
Dreyfus raised the case of 72-year-old Gareth Smith of Byron Bay, who spray-painted “shame Australia shame” in hot pink across Parliament House in 1999 in protest against AFP actions in Timor-Leste.
If the legislation was retrospective, Smith as an Australian-British national would be deported – a prospect which Smith himself has described as “Orwellian”.
Government agencies had prepared information for the committee, including a list of convictions for damage to commonwealth property and a list of similar laws in the UK, Britain and Canada.
Labor has given in-principle support for the broader citizenship amendment but Dreyfus said the information relating to convictions should be made public to show how many people could be affected by the law.
But the government ruled the information, drawn from public sources, could not be made public.
The agencies took the questions on notice before closing the session to the media.
