Parliament votes on it knows not what

As the wrong parliamentary committee considers such a vital question as Australian citizenship, it will be deliberating on a crucial liberties and rights issue that is nowhere defined in law. 

Media Release

Parliament votes on it knows not what

The federal parliament is soon to vote on stripping people of their citizenship, with neither MPs or Australians knowing what “citizenship” is.

There is no definition of Australian citizenship. Nowhere is it spelled out:

• what responsibilities citizens have to the nation of Australia, or
• what rights Australians inherit and possess because they are citizens, and therefore
• what responsibilities the Australian nation has to its citizens.

Rushing a new law through parliament to let a Minister strip people of Australian citizenship is putting the cart before the horse by a large margin. If we are to tinker with citizenship, we should know first what it is that we are tinkering with, Civil Liberties Australia says.

But a parliamentary process that is meant to address such issues hasn’t completed its work. The committee on Social Policy and Legal Affairs, chaired by the Queensland National MP, George Christensen, hosted a Constitutional Roundtable in March 2015. (Two earlier roundtable discussions were held in June 2013 and March 2008).

The get-together was a gabfest of academic experts mainly: it produced nothing of substance, not even a formal report, and predated the recent “urgent need” to “do something” about Australian jihadists fighting in the Middle East. That issue wasn’t even on the horizon less than four months ago.

The topic for the March 2015 roundtable was Citizenship and the Constitution, in three sessions:

• High Court decisions and their impact on the understanding on citizenship;
• Rights and responsibilities of citizenship under the Constitution; and
• The Austra
  lian Constitution and citizenship in the twenty first century.

Photo: the March 2015 roundtable in session.

None of the roundtables have produced anything like an explanation of what citizenship is.

The first task of parliament is to define Australian citizenship, and to spell out what responsibilities it imposes, and what rights it grants.

Australian citizenship should not be a plaything changeable by a sloppy draft Bill hastily considered only by the intelligence and security committee of parliament. Citizenship belongs to all Australians, not just to the spooks and guards.

Civil Liberties Australia believes the current review of citizenship process is so flawed it should be thrown out by both Houses of Parliament: MPs should be given a conscious vote on such a fundamentally important topic.

When they vote, they should reject the current Bill, and tell the government to do a lot more work before fiddling with Australian citizenship. The first task is to decide what citizenship is.

How flawed is the proposed new law? Here is what Dr Anne Twomey, Professor of Constitutional Law at the University of Sydney, says about the Citizenship Bill. She offers her comments in a detailed submission after giving chapter and verse on how legally challenged the draft Bill is:

“It is obvious from the inconsistencies and the inadequacies of the Explanatory Memorandum and the Bill that they were prepared in great haste without proper time for careful deliberation and drafting,” Prof Twomey says.

“This is not a criticism of the relevant public servants, who were obviously acting under enormous time pressure and stress. It is, however, a criticism of the political process that this Bill was rushed into Parliament without adequate care and scrutiny. It is a consequence of making policy on the run and pursuing thought bubbles and sound bites without having first sought and received considered legal advice and without taking adequate time to work through the complexities and consequences of the proposed law. “

Prof Twomey gives examples of schoolboy errors caused by indecent haste:

• Explanatory Memorandum para 8 states that the “aim of the Bill is the protection of the Australian communication, rather than punishing terrorist or hostile acts”.

Presumably what is meant is the ‘Australian community’, she writes.

• EM para 39 states that the revocation of citizenship under s 33AA “will still operate by law, that is, the revocation happens by force of the statute upon the conviction but there is scope thereafter for the Minister to consider exempting the person from the operation of section 33AA”.

  No conviction is required for the operation of revocation of citizenship under s (Para 75 contains the same error, as no ‘conviction’ is required for the revocation of citizenship under proposed s 35.), the Professor says.

• EM paras 98 and 101 fail to refer to s 29 of the Crimes Act 1914 (Cth).
• EM para 98 refers to s 80.2B(2), whereas proposed s 35A(3)(b) actually refers to s 80.2B(1) which is a different offence.

“There are good reasons to follow proper Cabinet and governmental processes and this Bill is a textbook example of the sort of fiasco that occurs when those processes are not followed,” Prof Twomey says.

“When the consequences of the Bill are so serious, both for affected individuals and the protection of the Australian community, it is especially important that the appropriate levels of care and deliberation are applied.”

Ref: Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, Submission 10 http://tinyurl.com/nd7f2zj