The Abbott government is refusing to provide evidence to show its proposed citizenship bill could withstand a high court challenge, despite numerous experts telling an inquiry that the legislation might be unconstitutional.
The secretary of the Department of Immigration and Border Protection, Michael Pezzullo, said the government believed it was “on legally sound ground” but would not release advice from the solicitor general to show that was the case.
Labor questioned how the parliamentary inquiry could proceed when the government declined to provide information to counter testimony from “a long list of eminent academics” that the bill was likely to be struck down by the high court.
The joint committee on intelligence and security is examining the proposed “allegiance to Australia” bill, which would enable the loss of Australian citizenship “where a dual citizen engages in terrorism-related conduct”.
The shadow attorney general, Mark Dreyfus, said the Australian Bar Association had now added its voice to concerns raised by other experts that the bill could be unconstitutional. Dreyfus said: “We’ve just been told the committee is not to be provided … with the solicitor general’s advice in relation to this bill. Is that right?”
Pezzullo replied: “That is so, Mr Dreyfus.”
Dreyfus asked how committee should proceed given it had heard detailed reasons from experts “as to why the bill is unconstitutional and nothing from the government on the other side of the ledger”.
Pezzullo said that it was up to the committee how it chose to acquit its duties and obligations, but he repeated a general assurance.
“I understand the point Mr Dreyfus is raising,” Pezzullo said.
“All I can repeat is evidence we gave last week ... that the government has advice to hand that suggests that we are on legally sound ground, it’s defensible, and it’s a common practice - common enough almost to be invariably the case - that legal opinions are not made public by way of submission to committees.”
Katherine Jones, the deputy secretary of the Attorney-General’s Department, said constitutional considerations “were looked at very closely in terms of the development of the bill”.
“The bill was drafted with those considerations in mind and the draft bill as presented is informed by that,” she said.
Labor’s Senate leader Penny Wong, a member of the committee, said the government was asking for people to “trust us; take us at our word; it’s fine”.
In a tense exchange, the chair of the committee, Liberal MP Dan Tehan, said he was “confident that as a committee we’ll be able to work through this”.
Wong fired back: “You’ve already told people that you think it’s constitutional, so did some people get a copy of the advice and not others? Is that how it worked?”
Tehan replied: “I’m confident that as a committee we can work through this … we all know there’s strong precedent for the position the government has taken. We can sit here for the next hour and half and go through this or otherwise we can move to other questions. I would suggest we move to other questions.”
Another member of the committee, Liberal MP Andrew Nikolic, objected to the line of questioning and asked how often the former Labor government had tabled solicitor general’s advice.
Wong said she accepted the general principle that advice was not provided, but did not accept that it had never been provided. “I’m not trying to cast aspersions on the officials,” she said. “I assume other people have made the decision.”
Pezzullo confirmed that ministers decided not to release the advice on the citizenship bill.
“As is ordinarily the case, senator, in these cases, it was referred to the competent authorities who are ministers,” Pezzullo said. “It’s a matter for ministers.”
Constitutional experts expressed grave concerns about the bill when they gave evidence to the same committee last week.
Professor George Williams, a constitutional expert based at the University of New South Wales, said he saw three grounds for a high court challenge and the bill appeared “almost set up to fail”.
“I have given evidence to this committee and other committees 20, 30 times, and this is the first time that I am prepared to say that I am confident not only that there is a strong case against this bill, but more likely than not it would be struck down by the High Court,” he said.
Cheryl Saunders, the foundation director of the Centre for Comparative Constitutional Studies at the University of Melbourne law school, said there were “considerable problems with the drafting of the bill” and a “real likelihood of judicial review of the constitutionality”.
Helen Irving, a professor of law at the University of Sydney, said: “I suggest that, if the bill is attempting to take the revocation of citizenship as a consequence of conduct out of the hands of the courts, it is unlikely to succeed since the conduct is defined by reference to offences.”
Professor Kim Rubenstein said: “I am confident of certain provisions being struck down, because there are very clear expressions about a person losing their citizenship for a matter that is not proportionate to the objectives of this particular act.”
