Graeme Orr, The University of QueenslandAre the Liberals liberal? Does the Labor Party stand chiefly for those who labour? Electoral politics is nothing if not about wrapping ideas – about values and power – in words.
On Friday, the Morrison government introduced a Party Registration Integrity Bill to the Commonwealth parliament. The bill would let established parties veto the use of words like “Liberal”, “Labor” or “Democrats” in the names of newer, rival parties. It will also make it harder to register – or keep registered – parties, by tripling the number of members required to 1,500, unless the party has an MP.
What is going on? Is this about democratic values, or is it a power play?
People may differ about the bill’s justification. But one thing is clear to a lawyer: as drafted, the bill is cooked. It overreaches and is not well drafted.
To take an obvious example, the bill will let the Liberal Party control the word “Liberal”, if “contained” in the name of any other registered party. That includes the Liberal Democratic Party of ex-senator David Leyonhjelm and potential-senator Campbell Newman fame.
The Liberal Party is also upset by the emergence of the New Liberals. But “Liberals” is not the same as “Liberal”. Indeed it’s a noun, not an adjective. So perhaps the bill won’t cure that upset.
Mere “function words”, like “the” or “of” don’t count. Nor is any “collective noun for people” protected. Think “party” or “Australians”. Linguists will be left to argue whether collective nouns like “Liberals” or “Greens” are off-limits. Can “Indigenous” be bagsed? Your guess is as good as mine.
“Frivolous and vexatious” names will also be struck out. So no Australian version of the UK’s Monster Raving Loony Party. Oh, the shame; if Brits can take a joke, why can’t we?
Australia’s most colourful political figure is currently seeking to remove his own name from his Clive Palmer United Australia Party. But if he doesn’t, he could forever veto anyone else called “Clive” or “Palmer” naming a party after themselves. Real names are not “function words”.
More seriously, handing one party squatter’s rights over everyday words is troublesome. It creates a virtual intellectual property right. That is fine for trademarking commercial goods; it’s another thing altogether in politics, where language is dynamic and fundamental. Worryingly, it gives leverage to established parties. They could ask a newer party for its support (with legislation or electorally) in return for permission to use the overlapping word in their name.
The government argues the bill is needed to minimise confusion among electors. After all, compulsory and preferential voting means identifiable names on ballot papers are crucial, as most electors vote for parties, and some only decide their full preferences when mulling the ballot itself.
Why does party registration, and names, matter? Anyone can form a political group. But to have your group’s name on the ballot paper, and control public funding for garnering 4% of the vote, you need to register as a “party”.
Before registration systems arose in the 1980s, Australian politics was largely a battle between Labor and the Liberal-Country Party Coalition. Other forces came and went, often via splits in the major groupings.
The Liberal Movement was a progressive liberalist party in the 1970s, while the Democratic Labor Party (DLP) had success as a socially conservative, but union-oriented, party in the 1950s-70s. Their names were natural enough.
Australian parties today are electoral machines more than social movements. Each, understandably, wants to guard its “brand”. Infamously, the Liberal Democratic Party won a Senate seat in 2013 when it lucked the first place on a huge ballot paper while the Liberal Party was hidden in the middle.
In response, laws were passed to allow visual cues on ballot papers, via party logos. And the independent Australian Electoral Commission (AEC) and courts can already rule whether a name can be confused with another party, or implies a false association.
In recent decades, registered parties have proliferated, partly due to opportunists wanting a ticket in the lottery of the final Senate seat up for grabs. That gambit has been significantly nullified by making voters choose where their preferences go (if anywhere) in the Senate.
That leaves the long-term decline in voter base of both major parties as the chief driver of the creation of new parties. For national elections, there are 46 registered parties. In Queensland, without a state Senate, there are barely a dozen. Is too much potential choice a bad thing?
Forty-six is a lot, but some will die naturally. Others will be wiped away by the increased, 1,500-member rule. Which is fair enough, unless you are a regional party focused only on the Senate in a small state or territory. The 1,500-member rule also won’t deter parties formed by wealthy interests, if the party can afford a zero-dollar membership “fee”.
Ultimately, this bill is dubious not because of mathematics, but linguistics. It gives established parties control over language. Not even the Académie Française, much lampooned for its elite rulings over how French should be used, has that kind of power.
Laura Fruhen, The University of Western Australia; Isabel Rossen, The University of Western Australia, and Lisette Kanse, The University of Western AustraliaTo protect cyclists on the roads, state governments in Australia have introduced laws that set a minimum space drivers must give cyclists when overtaking them. These laws are now in place nationwide, with Victoria the final state to join the ranks last month. But do these passing distance laws actually change drivers’ behaviour towards cyclists?
Our research set out to answer this question by evaluating Western Australia’s passing distance law introduced in 2017. We found that since the law took effect drivers do indeed report giving cyclists more space when overtaking. However, there were possible unintended consequences. Drivers also self-reported more aggressive behaviour directed at cyclists, such as beeping horns or swearing.
What is in a passing distance law?
Passing distance laws are based on the understanding that close overtaking by cars greatly increases the risk of accidents involving cyclists and motor vehicles. Previously, drivers had to use their own judgement in providing “sufficient” space when overtaking cyclists. Now the laws instead specify a minimum distance.
In Australia, the distance is usually 1 metre on roads with speed limits less than 60km/h and 1.5 metres on roads with higher speed limits.
Lawmakers understand that legislation can also send important social signals: cyclists are legitimate road users, and the road is a safe place to cycle.
Why do we need these laws to protect cyclists?
Cycling is a healthy and environmentally friendly mode of transport. It can play a key role in reducing pollution and congestion in ever more densely populated cities. Yet cycling rates in Australia are low.
Clearly, it would be desirable for more people to take up cycling. Why is this not happening?
Partly, low cycling rates might be due to the risks involved in cycling. Cyclist fatalities and injuries have been on the rise in Australia in recent years. We know this is not related to the roads becoming more dangerous for everybody, because car driver deaths have been decreasing over the same time.
As well as objective safety, cycling participation is also related to whether people perceive cycling to be safe. Part of this perception comes from how other road users treat cyclists. Unfortunately, cyclists report motorists direct a fair amount of aggressive behaviour at them.
So what difference do these laws make?
However, we found the law may have the unintended side effect of increased aggressive behaviour towards cyclists.
There are several possible explanations for these unintended changes. We think it is an issue of culture: Australia is a car-centric society. Many car drivers in Australia believe cyclists do not belong on the roads.
Passing distance laws signal that cyclists are deserving of space and may “force” drivers to give cyclists more space, against their beliefs. Some drivers may give cyclists more space to comply with the law, but counter any discomfort they experience by being more aggressive towards cyclists.
Drivers often experience frustration with having to overtake cyclists and other slow road users. The law may have actually drawn attention to this frustration, which in turn may have contributed to more aggressive behaviour among drivers.
We also found cycling rates have remained stable since the passing distance law was introduced. Unfortunately, this suggests the law did not translate into greater enthusiasm for cycling.
What can be done to improve the situation?
If these laws have these side effects, what else can we do?
It seems passing distance laws are effective in regulating the specific behaviour of overtaking cyclists. This is great news for cyclists’ safety. However, to make cycling safer overall, and to increase cycling rates, further measures to complement these laws are needed.
Changing drivers’ deeply ingrained beliefs and attitudes towards cyclists may be a longer process, but one worth embarking on. Infrastructure and road layouts also matter and can play a role in shifting priorities away from cars.
Infrastructure that plans space for cyclists would reduce the number of interactions between cyclists and drivers. It also signals that cyclists have a right to this space.
As an added benefit, this type of infrastructure can play a key part in preparing the road network for emerging technology such as e-scooters and other transport modes.
Public policy is an inexact science. Most new laws will have some unintended consequences. Our study confirms the importance of careful evaluation of such laws. It shows the passing distance law is a great first step, but more can be done to protect cyclists on the roads.
Laura Fruhen, Lecturer, School of Psychological Science, The University of Western Australia; Isabel Rossen, Senior Learning Skills Officer, The University of Western Australia, and Lisette Kanse, Senior Lecturer, School of Psychological Science, The University of Western Australia
The most extensive review of Australia’s intelligence sector since the 1970s has released its public report.
The Comprehensive Review of the Legal Framework of the National Intelligence Community – the “Richardson Review” – culminated in a four-volume declassified report containing 203 recommendations (13 of them classified).
It has been embraced by the government, which took almost a year to consider the classified report (described by Attorney-General Christian Porter as needing “to be carried around in a wheelbarrow”).
The undertaking was enormous. In the 19 years since the terror attacks of September 11, 2001, federal parliament has introduced 124 separate acts concerning the national intelligence community. On the whole, these acts have enhanced government power, increased secrecy, and scrambled to keep up with a constantly evolving threat environment. The result is one of the most complex legislative landscapes in the world.
Shining light into the shadows
The intelligence community operates in the shadows. So it is significant that this extensive (and expensive, to the tune of A$18 million) inquiry has resulted in a public report and recommendations. The report provides a valuable insight into the intelligence sector: its powers, functions and room for improvement.
But it must be acknowledged this was essentially – and perhaps necessarily – an internal inquiry.
The review was chaired by retired senior public servant Dennis Richardson. His former roles include head of ASIO and secretary of both the Department of Foreign Affairs and Trade and the Department of Defence. Consultation focused on Commonwealth, State and Territory agencies and departments. Only 16 submissions were received from non-government sources.
This means the inquiry had the high-level access and expertise necessary for a truly comprehensive review.
It also makes it less surprising the government has agreed (in whole or part) to all but four of the review’s recommendations. Indeed, many of the recommendations affirm the current state of the law and the sector as a whole. The review’s engagement with civil liberties, democratic freedoms, whistleblower protections and such, is restrained. Instead, it focuses on other aspects of the rule of law, particularly legal clarity and (internal) oversight.
An electronic surveillance act is a good idea – in principle
The sheer scope of the Richardson review means its far-reaching recommendations will be mulled over for years.
However, the report contains one clear centrepiece: the introduction of a new electronic surveillance act. This, Porter says:
…would be perhaps the biggest national security legislative project in recent history.
While Richardson estimates the introduction of the act could take five years and a budget of A$10 million, the government has agreed to pursue the idea.
The simplification of Australia’s surveillance legislation will be welcomed by anyone who has grappled with the monstrously complex Telecommunications (Interception and Access) Act 1979 (TIA act).
An electronic surveillance act would retain the same basic processes that exist now; the changes would focus on clarity and modernisation.
The attorney-general would also keep a key role in issuing a range of warrants – the report advises against a greater role for the judiciary in this respect. The primary focus remains on intelligence and investigatory aims.
New powers and access to telecommunications data would be granted to the Australian Transaction Reports and Analysis Centre (AUSTRAC), Australian Border Force and corrective services agencies.
But the report warns against giving other agencies new powers. The Australian Signals Directorate, for example, (which a leaked 2018 memorandum suggesting it could be given domestic surveillance powers) should not be given “an onshore crime-fighting role” as this would “dilute its mission” and “constitute a profound break with the principles which have stood us in good stead”.
Oversight is crucial for the powerful security sector, but also presents tricky problems of security and secrecy (as demonstrated by the Witness K affair). Richardson decries the existing oversight framework in the TIA act as “a dog’s breakfast”, and recommends centralising national oversight in the Commonwealth Ombudsman.
A similar emphasis is given to the Inspector General of Intelligence and Security (IGIS). Numerous enhancements to the oversight powers of the IGIS are recommended, including allowing the Parliamentary Joint Committee of Intelligence and Security to request the IGIS undertake an investigation. However, this latter recommendation has been wholly rejected by the government.
While this marks the culmination of an immense investigation, the Richardson report is the beginning, rather than the end, of a journey.
It needs to be read alongside the countless other reports and inquiries that have recommended important changes to Australia’s counterterrorism, data surveillance, whistleblower protection and other frameworks.
A starting point for reform
The government has committed to a complete overhaul of its electronic surveillance powers and processes. The Richardson report lays the groundwork for this. It synthesises the views and experiences of Australia’s vast intelligence community and presents a crucial starting point for reform.
However, the process of rewriting the rules on electronic surveillance should include myriad voices beyond the intelligence community. Ideally, this would involve not only experts in law, rights and privacy, but also technology, AI, telecommunications, criminology and more.
The review gives a nod to a few of the complicating factors in the future of electronic surveillance – including the rise of artificial intelligence, the capacity to use the 5G network as a tracking device, and the pervasiveness of cyber crime.
Data surveillance laws are rarely subject to effective oversight or public accountability. This was borne out, for example, in the Commonwealth Ombudsman’s 2019 report on warrantless access to retained telecommunication data. It revealed widespread misconduct and an average of 1000 accesses to Australians’ data each day.
An electronic surveillance act is a good idea, in theory. It will take a lively and considered public debate to ensure it becomes a good idea in practice – capable of not only protecting our safety and security, but democratic accountability and basic freedoms as well.
A new single legislative framework governing electronic surveillance activities in Australia has been recommended by a sweeping review of the nation’s intelligence laws.
The review found the existing laws governing this area are complex and outdated by changing technology.
The new act – not designed to alter powers – would cover telecommunication interception, covert access to stored communications, computers and telecommunications data, and the use of optical, listening and tracking devices.
The comprehensive review, led by Dennis Richardson, who previously headed the departments of defence and foreign affairs, as well as ASIO, and served as ambassador to the United States.
The Richardson report runs to 1600 pages and 203 recommendations, 13 of them classified. A declassified version was released by Attorney-General Christian Porter on Friday.
In general, the review – the most extensive since the inquiries of the 1970s and 1980s – gave a tick to the principles underpinning current security and intelligence legislation. But it found it in need of rationalisation and modernisation. Porter characterised the reforms as evolutionary rather than revolutionary.
The review did have sharp observations about some agencies, including noting “an immature understanding of the foundational principles governing the intelligence agencies”.
“This lack of understanding led some agencies to suggest that legitimate safeguards should be removed to, for example, facilitate better information sharing or relieve administrative burdens,” the report said.
“The term ‘administrative burden’ tends to be thrown around too loosely by the [national intelligence community] agencies. Government should be wary of, and properly test, such claims.”
The government has accepted almost all the recommendations, including for the new surveillance legislation. Some are accepted in principle or in part. Only four recommendations – none of them classified – have been rejected.
Richardson’s report warns that reforming the surveillance legislation will take years. “This is due to the issues at play, the multitude of interested stakeholders at the Commonwealth, state and territory level and the controversy which attaches to what are, arguably, the most intrusive powers of the state”.
Porter said other changes the government would pursue included
strengthening ministerial control over ASIO’s offshore activities
streamlining the provisions for issuing emergency warrants
ensuring oversight was better embedded when intelligence legislation is created
establishing an independent panel to provide technical expertise and assistance to the Inspector General of Intelligence and Security (IGIS).
One of the rejected recommendations would have enabled the parliamentary committee on security and intelligence to be able to request the IGIS to inquire into “the legality and propriety of particular operational activities”.
In its rejection, the government said: “It remains appropriate for ministers to primarily oversee operations and be accountable to parliament”.
The review recommends widening ASIO’s power to collect foreign intelligence. Foreign intelligence means intelligence about the capabilities, intentions or activities of people or organisations outside Australia.
An example would be a dual citizen working in Australia on behalf of a foreign government. The amendment would allow the attorney-general to issue a warrant in relation to the person for the purpose of obtaining foreign intelligence, while the person is in Australia.
At present “ASIO may obtain warrants authorising it to collect foreign intelligence inside Australia. However a warrant cannot be issued for the purpose of collecting information concerning an Australian citizen or permanent resident. This applies while they are in Australia.
“This prohibition should not apply where an Australian citizen or permanent resident is acting for, or on behalf of, a foreign power.”
The review recommended changes to prevent the delegation of the attorney-general’s powers in relation to ASIO warrants and authorisations.
It also found “room to improve” how agencies manage risks to foreign relations.
“There is a simple need for agencies to consult and inform [the foreign affairs department] more readily than what they are doing at present when they are engaging in risky offshore activity.”
The federal government has announced a plan to increase the sharing of citizen data across the public sector.
This would include data sitting with agencies such as Centrelink, the Australian Tax Office, the Department of Home Affairs, the Bureau of Statistics and potentially other external “accredited” parties such as universities and businesses.
The draft Data Availability and Transparency Bill released today will not fix ongoing problems in public administration. It won’t solve many problems in public health. It is a worrying shift to a post-privacy society.
It’s a matter of arrogance, rather than effectiveness. It highlights deficiencies in Australian law that need fixing.
Making sense of the plan
Australian governments on all levels have built huge silos of information about us all. We supply the data for these silos each time we deal with government.
It’s difficult to exercise your rights and responsibilities without providing data. If you’re a voter, a director, a doctor, a gun owner, on welfare, pay tax, have a driver’s licence or Medicare card – our governments have data about you.
Much of this is supplied on a legally mandatory basis. It allows the federal, state, territory and local governments to provide pensions, elections, parks, courts and hospitals, and to collect rates, fees and taxes.
The proposed Data Availability and Transparency Bill will authorise large-scale sharing of data about citizens and non-citizens across the public sector, between both public and private bodies. Previously called the “Data Sharing and Release” legislation, the word “transparency” has now replaced “release” to allay public fears.
The legislation would allow sharing between Commonwealth government agencies that are currently constrained by a range of acts overseen (weakly) by the under-resourced Australian Information Commissioner (OAIC).
The acts often only apply to specific agencies or data. Overall we have a threadbare patchwork of law that is supposed to respect our privacy but often isn’t effective. It hasn’t kept pace with law in Europe and elsewhere in the world.
The plan also envisages sharing data with trusted third parties. They might be universities or other research institutions. In future, the sharing could extend to include state or territory agencies and the private sector, too.
Any public or private bodies that receive data can then share it forward. Irrespective of whether one has anything to hide, this plan is worrying.
Why will there be sharing?
Sharing isn’t necessarily a bad thing. But it should be done accountably and appropriately.
Consultations over the past two years have highlighted the value of inter-agency sharing for law enforcement and for research into health and welfare. Universities have identified a range of uses regarding urban planning, environment protection, crime, education, employment, investment, disease control and medical treatment.
Many researchers will be delighted by the prospect of accessing data more cheaply than doing onerous small-scale surveys. IT people have also been enthusiastic about money that could be made helping the databases of different agencies talk to each other.
However, the reality is more complicated, as researchers and civil society advocates have pointed out.
Why should you be worried?
The plan for comprehensive data sharing is founded on the premise of accreditation of data recipients (entities deemed trustworthy) and oversight by the Office of the National Data Commissioner, under the proposed act.
The draft bill announced today is open for a short period of public comment before it goes to parliament. It features a consultation paper alongside a disquieting consultants’ report about the bill. In this report, the consultants refer to concerns and “high inherent risk”, but unsurprisingly appear to assume things will work out.
Federal Minister for Government Services Stuart Roberts, who presided over the tragedy known as the RoboDebt scheme, is optimistic about the bill. He dismissed critics’ concerns by stating consent is implied when someone uses a government service. This seems disingenuous, given people typically don’t have a choice.
However, the bill does exclude some data sharing. If you’re a criminologist researching law enforcement, for example, you won’t have an open sesame. Experience with the national Privacy Act and other Commonwealth and state legislation tells us such exclusions weaken over time
Outside the narrow exclusions centred on law enforcement and national security, the bill’s default position is to share widely and often. That’s because the accreditation requirements for agencies aren’t onerous and the bases for sharing are very broad.
This proposal exacerbates ongoing questions about day-to-day privacy protection. Who’s responsible, with what framework and what resources?
Responsibility is crucial, as national and state agencies recurrently experience data breaches. Although as RoboDebt revealed, they often stick to denial. Universities are also often wide open to data breaches.
Proponents of the plan argue privacy can be protected through robust de-identification, in other words removing the ability to identify specific individuals. However, research has recurrently shown “de-identification” is no silver bullet.
Most bodies don’t recognise the scope for re-identification of de-identified personal information and lots of sharing will emphasise data matching.
Be careful what you ask for
Sharing may result in social goods such as better cities, smarter government and healthier people by providing access to data (rather than just money) for service providers and researchers.
That said, our history of aspirational statements about privacy protection without meaningful enforcement by watchdogs should provoke some hard questions. It wasn’t long ago the government failed to prevent hackers from accessing sensitive data on more than 200,000 Australians.
It’s true this bill would ostensibly provide transparency, but it won’t provide genuine accountability. It shouldn’t be taken at face value.
The spectre of large ships with people desperate to come ashore is not a new sight in Australia.
In 2001, the MV Tampa infamously sought to enter Australian waters off Christmas Island to discharge more than 400 asylum seekers who had been rescued by the Norwegian vessel.
It is estimated that 15,000 crew members are now stranded on 18 cruise ships floating around Australia, with mounting concerns that coronavirus will take hold and spread.
The circumstances for each ship may vary, but the fundamental rules of international law remain the same.
Duty to render assistance
For those at sea, there is a duty for masters of vessels to render assistance to those in distress. States must fulfill this obligation, too.
Australia could be seen as fulfilling this responsibility with its plan to send doctors to the cruise ships to evaluate sick crew members. An at-sea boarding is challenging, though, and requires the consent and cooperation of those on board.
When the vessel itself is in distress, the international law of the sea allows for it to enter a port of refuge.
Though countries exercise sovereignty over their ports and are entitled to control which vessels enter, an exception exists under customary international law to allow ships in distress to dock.
This is what happened in 2001 when the master of the Tampa issued a distress call to warrant his entry to Christmas Island.
But what counts as distress? Essentially, it is when there is a clear threat to the safety of those aboard the ship.
Traditionally, this related to situations when a vessel had a broken mast, damaged sails or malfunctioning engines or other mechanical failures requiring repair. A vessel could enter into port and seek the repairs needed before continuing on its journey.
The Tampa’s distress, however, was caused by the fact it was carrying an excess number of people who required more food, water and medical attention than the vessel was equipped to provide.
International law protections for crews
What about a cruise liner with a crew of 1,000 who live in close quarters and are exposed to the coronavirus? A situation of distress could well arise on these ships, as well.
International law has minimum requirements for the crew operating a ship. At the moment, it would seem the crew on a cruise liner would be divided between those who are essential for the running of a vessel and those whose jobs are to look after the passengers.
A situation of distress would be more easily established when the crew responsible for the actual running of the vessel are unwell and unable to perform tasks essential for the safety of the ship.
The crew members also have core rights that are set out in the Maritime Labour Convention, which came into force in 2013. It sets the working and living standards for crews working on ships internationally.
Under this convention, seafarers who are in need of immediate medical care are to be given access to medical facilities on shore. Australia is bound by this obligation for vessels located in its territorial waters, regardless of whether those ships are foreign-registered.
That order requires the owners of vessels
put in place measures for the health protection, medical care and essential dental care for seafarers on board.
This obligation extends to ensuring that
seafarers have health protection and medical care as comparable as possible to that available to workers on shore, including prompt access to: (i) necessary medicines, medical equipment and facilities for diagnosis and treatment; and (ii) medical information and expertise.
This order applies to Australian vessels. The question is whether the same rules apply to a foreign-registered vessel.
However, the vessel owners do not have full responsibility for the well-being of crews on board. The Maritime Labour Convention makes clear that Australia is duty-bound to offer medical care to crew on ships in its territorial waters.
The convention does not indicate who has primary responsibility to provide medical assistance in cases like these, but the shipowner does have financial liability under the treaty to defray the expenses of such treatment. What matters is the crew receives the necessary medical care.
For Australia, there is still a balance of rights to be achieved. Under international law, a state might refuse access to its ports for a ship that poses a serious and unacceptable safety, environmental, health or security threat to it. A pandemic would no doubt count in this regard.
Port states have the right to protect their local populations in different ways, consistent with international health regulations put forth by the World Health Organisation and with the International Ship and Port Facility Code.
Yet, the safety of persons on board must be assured, as well.
Yesterday, the government introduced a bill into Parliament that, if passed, would allow the home affairs minister Peter Dutton to temporarily exclude some Australian citizens – including children – from returning to Australia.
The bill is aimed at mitigating threats posed by foreign fighters coming back to Australia from conflicts in Syria and Iraq. It was first put before Parliament in February, and has now been reintroduced with some amendments.
National security laws must continue to adapt to changing circumstances. But the government has not made it clear how the bill would fill an identified gap in Australia’s already extensive national security regime.
How would the bill work?
If passed, the bill will allow the minister to issue a Temporary Exclusion Order (TEO) preventing an Australian citizen who is overseas from re-entering Australia. These exclusion orders aren’t designed to exclude citizens from Australia forever, but rather to provide a system that manages their return.
A TEO can be imposed on a citizen outside Australia if they are at least 14 years old, and:
the minister reasonably suspects that issuing the TEO would substantially help prevent terrorism-related acts, or
ASIO has assessed the person to be a direct or indirect risk to security, for reasons related to political violence. ASIO doesn’t need to be satisfied to any standard of proof when making this assessment.
But neither of these criteria actually requires a TEO candidate to have engaged in any wrongdoing.
A person may not enter Australia while a TEO is in force against them. If they do, they can face up to two years behind bars. A TEO may also require the person to surrender their Australian passport.
Each TEO can be issued for a maximum of two years, but a person may have multiple TEOs issued against them. This means the actual period of exclusion from Australia can be much longer.
So how does a return to Australia work?
The return of citizens with TEOs against them is managed through “return permits”. This is designed to allow the government to monitor and control foreign fighters’ entry and presence in Australia. A return permit must be issued if the person applies for one, or if a foreign country moves to deport them to Australia.
A return permit may prescribe various conditions. Significantly, it doesn’t guarantee an immediate right to return to Australia – a person may be prohibited from entering Australia for up to 12 months after the permit is issued.
Once in Australia, a range of post-entry conditions may also be imposed. These can include passport surrender, and requirements to report changes to residence or employment, contact with particular individuals and technology use.
Breaching the conditions of a return permit is an offence, punishable by up to two years in prison.
Are the proposed laws constitutional and compatible with international law?
The right to return to one’s country is commonly regarded as a core aspect of citizenship. And some experts have argued that a citizen’s right to return home is constitutionally protected in Australia.
But the High Court has never ruled on the question of whether a constitutional right of this nature exists, so it’s impossible to say for certain whether the bill, if passed, would be unconstitutional. Still, it’s likely to face constitutional challenge.
In any case, international law protects an individual’s right to voluntarily return to their country of citizenship. The government acknowledges that TEOs restrict a person’s capacity to do this, but says the bill is justified because it’s “reasonable, necessary and proportionate”. This, however, isn’t clear.
Does the bill contain adequate safeguards?
In April, when reviewing the original bill, the Parliamentary Joint Committee on Intelligence and Security recommended 18 changes, aimed at improving safeguards.
But the new bill only took on seven changes in full, including requiring the minister to consider specific criteria when imposing a TEO on a child, and providing independent oversight of decisions to issue TEOs.
Importantly, some of the committee’s most significant recommendations have been ignored, such as narrowing the criteria for issuing a TEO. And others have only been partially implemented.
Given the significant impact a TEO has on a person, the bill should adopt the committee’s recommendations in full.
Is the bill even necessary?
In parliament, Dutton said national security agencies advise that many Australians who have travelled to conflict zones in Syria and Iraq to support extremist groups are “likely to seek return to Australia in the very near future”, and the bill is needed to keep Australians safe.
But the government hasn’t explained why Australia’s extensive suite of existing anti-terrorism mechanisms doesn’t already adequately protect against threats posed by Australians returning from conflict zones.
Australia’s 75 pieces of legislation provide for criminal penalties, civil alternatives to prosecution, expanded police and intelligence powers, and citizenship revocation.
And they protect Australia from the risks posed by returning foreign fighters in a variety of ways.
For example, a person who returns to Australia as a known member of a terrorist organisation can be charged with an offence punishable by up to 10 years’ imprisonment. Where the person has done more – such as fight, resource or train with the organisation – penalties of up to 25 years each apply.
Although gathering sufficient evidence to prosecute returning foreign fighters can prove challenging, there are mechanisms in our legislation that already account for this.
For instance, a control order may be imposed on a person in cases where they are deemed a risk but there is not enough evidence to prosecute. This restricts the person’s actions through measures such as curfews and monitoring requirements.
Evidence shows the existing measures work effectively. Police and intelligence agencies have successfully disrupted a significant number of terror plots using existing laws, most recently just days ago.
Arguably, this suggests Australia has not only the capacity, but also the responsibility to use the full force of our laws to bring foreign fighters to justice in Australia, rather than leave them stranded in conflict zones where their only connections may be to terrorist groups, thereby weakening global security.
Of course, if it’s to remain fit for purpose, Australia’s national security framework must continue to adapt to changing circumstances. But with extensive, demonstrably effective mechanisms in place, the government must clearly explain what gap this bill would fill. This has not been done.
Last month, the federal government introduced a bill into parliament that, if passed, will make it easier to strip an Australian of citizenship by:
- making lesser offences a trigger for deprivation
- dropping the requirement that, to trigger deprivation, a conviction or convictions result in a term of imprisonment of at least six years
- weakening and complicating protections against the creation of statelessness.
These amendments are directly contrary to bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security, contained in its report of September 2015. Those recommendations were followed when parliament inserted the current citizenship stripping provisions into the Australian Citizenship Act 2007 in December 2015.
Expanding the scope, and lowering the threshold, for deprivation
The proposed amendments address what an earlier Conversation piece referred to as “conviction-based citizenship deprivation”, one of three mechanisms for deprivation introduced into the Act in 2015.
Of the offences currently listed as potential triggers for deprivation, some are directed at terrorism and some are without that connection (for example sabotage and espionage). All carry a maximum sentence of ten years or more: for example treason (life); espionage (life); directing the activities of a terrorist organisation (ten years) or; membership of a terrorist organisation (ten years).
This enacts the view of the parliamentary committee that ten years served to mark out the offences sufficiently serious to warrant deprivation. Further, the parliamentary committee determined that even when convicted of such an offence:
there will still be degrees of seriousness of conduct and degrees to which conduct demonstrates a repudiation of allegiance to Australia.
The committee also insisted on an additional requirement that the relevant convictions result in a sentence of at least six years imprisonment in total.
These two important existing limitations on the deprivation power are breached by the government’s proposed amendments:
the offence of “associating with terrorist organisations” has been added to the terrorism offences that trigger deprivation. This is an offence with a maximum sentence of only three years, radically under the ten years previously required
the requirement that conviction carry a sentence of at least six years has been dropped in relation to all the nominated offences designated “terrorism offences”. However, it remains in place for “other offences” such as espionage, sabotage and foreign incursions
the new lower standards apply retrospectively to convictions from 12 December 2005 in relation to the relevant terrorism offences.
Weakening, and complicating, protections against statelessness
The proposed amendments also weaken the safeguards on the creation of statelessness. Currently, a person can only be deprived of citizenship under the provision if he or she “is a national or citizen of a country other than Australia” at the time when the minister strips him or her of citizenship. This is to ensure that the minister does not render the person stateless.
The proposed amendments replace that test, instead providing that the minister can deprive a person of Australian citizenship if:
the Minister is satisfied that the person would not […] become a person who is not a national or citizen of any country.
The proposed formulation substitutes the minister’s satisfaction for the facts of the matter. But under Australia’s international law commitments on statelessness, the minister’s opinion is irrelevant. What matters is whether the person is a citizen under the domestic law of the foreign country concerned.
If the minister’s view that a person is a citizen of country X diverges from the view held by the authorities in country X, there is a practical impasse. If country X determines the person is not one of its citizens and accordingly refuses to admit them, and Australia denies the newly minted non-citizen a visa, deprivation may result in the former Australian citizen being held in indefinite immigration detention.
And the nature of the inquiry has changed. In context, the word “become” muddies the time at which the person must have another nationality. It invites the possibility that deprivation will render a person stateless, but that, over some unspecified period, they will become the national of another country.
These comments on statelessness should be understood in the context of Australia’s opaque process for determining a person’s foreign nationality or nationalities. In the United Kingdom, for example, a person has a statutory right to appeal a ministerial decision to strip them of citizenship.
In the exercise of these appeal rights, the most frequently litigated issue is whether a person has another nationality (the Pham case is a prominent example). Expert witnesses are called and cross-examined on difficult questions of foreign nationality law.
None of this institutional infrastructure is provided for under the Australian legislation. How these issues are resolved needs attention. If parliament has learned anything in the past few years, it should be that determining whether a person has a foreign citizenship is no simple matter.
The Parliamentary Joint Committee on Intelligence and Security has announced an inquiry into the Bill. Submissions close on January 11, 2019.