This Digest replaces an earlier version dated 19 August 2009 to include additional analysis of proposed Government amendments to be moved to introduce special residency requirements.
Bills Digest no. 20 2009–10
Australian Citizenship Amendment (Citizenship Test Review and Other
Measures) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date introduced: 25 June 2009
House: Senate
Portfolio: Immigration and Citizenship
Commencement: Sections 1 to 3 and Schedule 2 on Royal Assent. Schedule 1
on a date fixed by Proclamation or the day after a period of six months after
the date of Royal Assent, whichever is the sooner.
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
To amend the Australian Citizenship Act
2007 (the Citizenship Act) to:
- make it easier for persons who have a physical or mental
incapacity as a result of suffering torture or trauma before coming to
Australia to be eligible to apply for citizenship;
- allow prospective applicants for citizenship by conferral to sit
the citizenship test at the same time as making the application; and
- tighten the eligibility provisions for persons under 18 years of
age by requiring that they be permanent residents; and
- introduce a reduced period of residency for Australian
citizenship for people in special circumstances.
The citizenship test was launched on 17 September 2007 with testing
commencing from 1 October 2007. The primary reason for introducing the test was
to ensure that citizenship applicants had the requisite knowledge to
demonstrate the requirements of the Citizenship Act which, broadly speaking, are
to understand the nature of the application, to have a basic knowledge of
English, and to demonstrate comprehension of the responsibilities and privileges
of citizenship. The former Minister for Immigration and Citizenship also linked
the test to successful integration into Australian society:
The test will encourage prospective citizens to obtain
knowledge they need to support successful integration into Australian society.
The citizenship test will provide them with the opportunity to demonstrate in
an objective way that they have the required knowledge of Australia, including
the responsibilities and privileges of citizenship, and a basic knowledge and
comprehension of English.[1]
He further stated that it was ‘the means of ensuring that
prospective citizens understand and appreciate Australian values, culture and
history’.[2]
The Act that introduced the citizenship test was the Australian
Citizenship Amendment (Citizenship Testing) Act 2007. In introducing
the (then) Bill, a brief explanation of the test was provided by the former
Minister for Immigration and Citizenship:
The test is expected to be computer based and consist of 20
multiple-choice questions drawn randomly from a large pool of confidential
questions. Each test is expected to include three questions on the
responsibilities and privileges of Australian citizenship. The pass mark is
expected to be 60 per cent including answering the three mandatory questions
correctly. A person will be able to take the test as many times as required in
order to pass.[3]
The Bills Digest on the Australian Citizenship Amendment (Citizenship Testing) Bill 2007
provides discussion and general background on citizenship and policy issues surrounding
the citizenship test. [4]
Between 1 October 2007 and 31 March 2009, 111 005 applicants
sat the Australian citizenship test. Of that number 107 287 (96.7 %) applicants
passed on their first or second attempt at the test. The pass rate of various
groups was:
Skill stream 99%
Family stream 94%
Humanitarian program 84%[5]
In its 2007 National Platform, the Australian Labor Party
stated that its intention to ‘support an inclusive citizenship process for new
migrants that encourages the acquisition of citizenship by permanent residents
and does not put up unnecessary barriers or extensive delays to the acquisition
of citizenship.[6]
On 28 April 2008, the Minister for Immigration and
Citizenship, Senator the Honourable Chris Evans, announced that an independent
committee of seven eminent Australians would undertake a review of the
citizenship test (the Review Committee). The Review Committee was chaired by
Richard Woolcott AC former diplomat and Secretary of the Department of Foreign
Affairs and Trade. Other members of the Committee included former Olympian
Rechelle Hawkes, SBS director Paula Masselos, refugee advocate Julianna
Nkrumah, Australia Day Council CEO Warren Pearson, former Chief of Navy Vice
Admiral Rtd Chris Ritchie and legal expert Professor Kim Rubenstein.[7]
In accordance with the terms of reference, the Review
Committee examined the operation and effectiveness of the citizenship test
since its introduction on 1 October 2007. The report of the Review Committee, Moving
forward…improving pathways to citizenship was released in August 2008.
According to the report, the committee looked at ways to improve its operation
and effectiveness as the pathway for residents to become Australian citizens.
It also considered all aspects of the content and operation of the test, the
experiences of applicants in completing the test, the impact on citizenship
applications and other related issues.[8]
The Review Committee’s findings and recommendations will be
discussed in further detail below.
As a result of its broad consultations, the Review Committee
generally found that:
- organisations linked to migration
support programs generally opposed any form of citizenship testing
- individuals whose views were sought in the community on the other
hand, tended to support some form of test
- there was support from many during community consultations for
education in civic responsibilities required of Australian citizens and the
desirability that the community provide this education.
- English teachers and language/educational experts generally held
the view that the level of English was pitched at too high a level for its
intended audience.[9]
The Review Committee also found that there was much
criticism of the resource book Becoming an Australian Citizen. Many of
those consulted considered that while much of the information was interesting,
‘most thought that it represented a particular view of Australian society and
history that might not be shared by all Australians. As the basis for a test,
it was seen to contain much that was irrelevant to citizenship’.[10]
The Review Committee made a number of key findings concerning the citizenship test. In their opinion, the ‘test was flawed,
intimidating to some and discriminatory, needing substantial reform.’ They also
considered that the purpose of any test should be to ‘assess whether a person
who wants to become a citizen is conscious of the main responsibilities
underpinning the citizenship pledge of commitment.’[11]
In addition, the Review Committee made 34 recommendations of which 22 were fully supported by the Government, four were supported in
principle, two were partially supported (elements of the recommendation were
supported) and six were not supported.[12] In brief, the six unsupported recommendations included:
- Pass mark to remain at 60%
- Concept of “earned” citizenship be introduced
-
“earned” citizenship to be decided by a referee
- That a Citizenship Convention be held in 2009
- Test questions be published
- Number of mandatory questions be reduced to two.
Recommendations made by the Review Committee of particular
relevance to this Bill will be discussed below under the ‘main provisions’
section of this Digest.
The Bill has been referred to the Senate Legal and
Constitutional Affairs Committee for inquiry on 25 June 2009 and report by 7
September 2009. Details of the inquiry can be found at the Senate
Legal and Constitutional Affairs website.
The Bill was also considered by the Senate
Standing Committee for the Scrutiny of Bills but it made no comment on the Bill.[13]
See also the report of the Senate Legal and Constitutional
Affairs Committee on the Australian
Citizenship Amendment (Citizenship Testing) Bill 2007 which recommended
(amongst other things) that:
the operation of the citizenship testing regime be reviewed three
years after the Bill's commencement, particularly to gauge the regime's impact
on citizenship application and conferral rates and on certain groups within
society, particularly refugee and humanitarian entrants (recommendation 1).[14]
There has been much commentary on the Review Committee and
its recommendations. Some considered that questions about historical figures
and facts such as ‘billiards champion Walter Lindrum and Donald Bradman’s
batting average obscured the far more important concept of what it means to be
an Australian citizen,’[15] while other reports referred to its ‘emphasis on testing arcane historical
facts.’[16] There was concerns that Don Bradman would be scrubbed from the test process,[17] that the new test was a ‘significant watering down of the test’[18] while another report referred to the new test being based on the ‘five-line
Pledge of Commitment recited by new citizens, which recognises Australia’s
democratic beliefs and laws and the rights and liberties of citizens.’[19]
The Explanatory Memorandum states that these amendments will
have minimal impact as funds will be allocated from existing resources.[20]
The Bill raises three key issues:
- Persons with a physical or mental incapacity as a result of having
suffered torture or trauma outside Australia will be exempt from sitting the
citizenship test;
- Streamlines the citizenship process by removing the requirement
that the citizenship test be successfully completed prior to the lodgement of
application. The Minister will also be able to specify a time period in which
the test must be successfully completed; and
- Persons under 18 years of age will be required to be permanent
residents in order to satisfy the eligibility criteria for citizenship.
These three key issues will be discussed in further detail below.
Items 1 to 7 amend provisions relating to citizenship
by conferral. Item 1 proposes to amend existing section 19G to
remove the reference to permanent in the simplified outline to the
Subdivision. Item 3 proposes to substitute paragraph 21(3)(d) which relates to a person with a permanent physical or mental incapacity
at the time they make the application with one referring to new subsections
21(3A) and (3B).
Item 4 inserts proposed subsections 21(3A) and (3B). Proposed subsection 21(3A) states that a person
satisfies the subsection if that person at the time of making an application
for citizenship has a permanent physical or mental incapacity that means
the person is not capable of understanding the nature of the application at
that time. Proposed subsection 21(3B) relates to a person with a
physical or mental incapacity at the time the person made the application,
where the incapacity is as a result of the person having suffered torture or
trauma outside Australia. The extent of the incapacity must be to the point
that the person is:
- not being capable of understanding the nature of the application at
the time they made it; OR
- not being capable of demonstrating a basic knowledge of the English
language at that time; OR
- not being capable of demonstrating an adequate knowledge of
Australia and of the responsibilities and privileges of Australian citizenship
at that time.
These three elements form part of the general criteria for
eligibility that people applying for citizenship demonstrate by completing the
citizenship test. The practical effect of this proposed amendment is that a person
is eligible to become an Australian citizen if the Minister is satisfied that
the person satisfies either (3A) or (3B) and qualifies in respect of the
other elements of subsection 21(3). These elements include:
- that the person is over 18 years
- satisfies the residence requirement or has completed relevant
defence service
- will reside in Australia or maintain a close and continuing
association with Australia
- is of good character.
The proposed amendments to subsection 21(3) do not change
the current provisions relating to permanent physical and mental
incapacity.
Existing section 26 requires that a person must make a
pledge of commitment. Item 7 inserts proposed paragraph 26(1)(ba) to
include persons that satisfy proposed subsection 21(3B) in the
list of persons who are not required to make a pledge. An exception is made for
these persons because it means they are not capable of understanding the nature
of the application, or are not able to demonstrate an adequate knowledge of
English or be aware of the responsibilities and privileges of Australian
citizenship at the time of making the application.
The Explanatory Memorandum provides that this amendment is
the result of the recommendations of the Review Committee.[21] The Review Committee recommended that section 21(3)(d) of the Australian
Citizenship Act 2007 be amended in the spirit of the Act to include an
inability to demonstrate a basic knowledge of English and an adequate knowledge
of Australia and of the responsibilities and privileges of Australian
citizenship due to mental incapacity, resulting in those individuals not being
required to sit a test.[22] The Government supported this recommendation and agreed that ‘this change will
ensure that the test does not disadvantage vulnerable people who most need our
support’.[23]
In its discussion of the topic the Review Committee
considered that the current exemption criteria did not take into account the
group of people who suffered from severe and chronic symptoms resulting from
torture and trauma. While they considered that some symptoms may be permanent
others, though severe, may not be permanent. They may be hampered by their
symptoms which can impair their ability to retain and recall information
although they may be capable of understanding the nature of the application at
the time. Therefore they would be excluded from the current exemption
provisions. The Committee commented as follows:
For survivors of torture and trauma, the use of a formal test
which requires a high level of English proficiency, a large amount of study and
familiarity in the use of a computer, significantly disadvantages them. There
are many people who come to Australia under the Humanitarian Program who fall
into this category.[24]
The Review Committee commented that many of these people may
understand the nature of the application but may be incapable of demonstrating
a basic knowledge of English or knowledge of Australia because of their mental
state.[25] Proposed subsection 21(3B) accommodates such people by requiring paragraphs
(a), (b) or (c) to apply. That is, a person may be capable of understanding the
nature of the application but be quite incapable of demonstrating a basic
knowledge of English or an adequate knowledge of Australia and the
responsibilities and privileges of citizenship.
It is also important to note that this exemption will not apply to persons who have a non-permanent physical or mental incapacity as a
result of having suffered torture or trauma whilst in Australia. For example
persons who have suffered torture or trauma while in immigration detention in
Australia.[26] In its submission to the Senate Committee inquiring into this Bill, the
Coalition for Asylum Seekers, Refugees and Detainees (CARAD) have urged
consideration be given to persons traumatised by their Australian detention
experience.[27]
In addition, it is not clear how a person’s level of
incapacity will be tested and by whom. The Australian Lawyers for Human Rights have
argued that if an applicant is required to obtain evidence of their incapacity
and how it has arisen, that there are few organisations in Australia who have
the expertise to provide services to persons who have suffered torture and
trauma.[28] CARAD have also asserted that there is really only one organisation equipped to
assist such people and that is ASeTTS: Assisting Torture and Trauma Survivors
who specialise in providing expert services to torture and trauma survivors in
Perth. They comment that the funding is inadequate to meet the demand, with
insufficient qualified staff and long waiting lists.[29]
Item 2 proposes to substitute subsection 21(2A) to remove the requirement that a person must sit the citizenship test before the application for citizenship is made. Rather, an applicant must satisfy the
following elements:
- the
person has sat a test (approved in a determination under section 23A)
- the
person was eligible to sit that test (worked out in accordance with that
determination)
- the
test was taken within the ‘relevant test period’ (worked out in accordance with
that determination)
- the person
successfully completed the test (worked out in accordance with that
determination)
If the Minister is satisfied that these elements have been
satisfied then paragraphs 21(2)(d) (e) and (f) are taken to be satisfied.
Paragraphs (2)(d), (e) and (f) relate to the person understanding the nature of
the citizenship application, possessing a basic knowledge of English and having
an adequate knowledge of Australia and of the responsibilities and privileges
of Australian citizenship.
Significantly, the Explanatory Memorandum notes that this
amendment will not only enable applicants to ‘meet all the requirements for
citizenship on the same day’, it will also ‘ensure that a person will not be
eligible for citizenship if they are unable to successfully complete the test within
a reasonable period of time (emphasis added):
By removing the requirement that an applicant must sit and
successfully complete the test before applying for citizenship, the amendments will
allow eligible applicants in many circumstances to meet all the requirements
for citizenship on the same day, including successfully completing the test.
However, to ensure that a person will not be eligible for citizenship if they
are unable to successfully complete the test within a reasonable period of
time, the amendments allow the Minister to specify a period of time within
which a person must start the test and complete the test.[30]
To this end, item 6 proposes to insert subsection
23A(5A) to provide that the Minister may make a determination under
subsection (1) (approval of test) to determine the period when a person may
start the test and the period when the person may complete the test. Significantly,
subsection 23A(7) of the Act provides that a determination under subsection
23A(1) is not a legislative instrument and therefore not subject to
Parliamentary scrutiny.
Item 8 proposes to substitute subsection 46(1A) to make the provision consistent with proposed subsection 21(2A) which removes
the requirement that a person must have sat the citizenship test and
successfully completed it before making an application for citizenship. This
amendment ‘ensures that the application fee may continue to include a component
that relates to the cost of administering the citizenship test’.[31]
The Review Committee recommended as one of their
recommendations under the heading of ‘Accessibility, Administration and
Resourcing’ that:
Processes be streamlined and realigned to combine citizenship
testing with the citizenship application (recommendation 25).
The Second reading speech comments that the Act proposes to
amend the application process because of observations made by the Review
Committee that the current process of multiple steps is inefficient for clients
and the Department. It will mean that most clients need only come to the
Department once.[32] The Review Committee commented that DIAC had received many complaints about
problems experienced by clients coping with the large distances between a
person’s place of residence and the nearest test centre. The Review Committee
noted this as a particular concern in remote areas such as northern Western
Australia and certain regional locations in New South Wales and Queensland and
the matter was also raised in a number of written submissions.[33]
Existing section 21 of the Act relates to the application
and eligibility criteria for citizenship. One of the general eligibility
criteria is that a person must be a permanent resident at the time they make
the application and at the time of the Minister’s decision on the application.[34] However, existing subsection 21(5) only states that ‘a person is eligible to
become an Australian citizen if the Minister is satisfied that the person is
aged under 18 at the time the person made the application’. Item 5 proposes
to substitute subsection 21(5) to require a person under 18 to also be a
permanent resident at time of application and decision in order to be eligible
to apply for citizenship.[35] This amendment will make existing subsection 21(5) consistent with existing subsections
(2), (3) and (4) ‘to ensure the integrity of the citizenship and migration
programs’.[36]
The Review Committee did not make any recommendations regarding
the requirement that a person under 18 be a permanent resident to be eligible
for citizenship.
Significantly, the minister has had the
ability to grant citizenship to minors since 1948 when the provision in
Division 3–Citizenship by naturalisation read as follows:
Section 15(3)
Notwithstanding anything contained in the preceding provisions of this
Division, the Minister may, upon application in the prescribed form, grant a
certificate of naturalisation as an Australian citizen to an alien who is not
of full age.[37]
Similarly, the Australian Citizenship Act 1948 section 13(9) in the consolidation made just prior to the 2007 Act being passed
read as follows:
(9) Subject to subsection (11), the Minister may, in the
Minister’s discretion, upon application in accordance with the approved form,
grant a certificate of Australian citizenship to a person:
(a) who has not attained the age of 18 years;…[38]
However, in the second reading speech Senator Penny Wong
stated that the ‘provision is being exploited and is undermining both the
citizenship and migration programs.’[39] To this end it is worth noting that the Minister has a discretion in existing
subsection 24(2) to refuse to approve the person becoming an Australian citizen
despite the person being eligible under existing subsection 21(5).
It appears the amendment contained in item 5 is
intended to ‘prevent children who are in Australia unlawfully, or who along
with their families, have exhausted all migration options, from applying for
citizenship in an attempt to prevent their removal from Australia’[40] which would require assessment of policy considerations (including residency
requirements) and the best interests of the child.[41] However, as Professor Kim Rubenstein of the Australian National University
asserts:
“Exploitation” is being used by the Minister in a negative
sense here and I would suggest the section is there to be available to children
who have a real connection to Australia and who will suffer hardship if not
granted citizenship. These concepts are entirely consistent with the principles
underpinning the current Australian Citizenship Act framework. That is, it is
an avenue to ensure that the “best interests of the child” are taken into
account in making profound decisions about whether they have a sufficient
connection to the Australian community and also in promoting an inclusive and
tolerant and harmonious society. [42]
Professor Kim Rubenstein considers that the proposed
amendment of subsection 21(5) is a very significant proposed amendment and
urges the Parliament to seriously review this suggested amendment.
The Australian Lawyers for Human Rights have similarly
emphasised that such a ‘blanket amendment disregards the rights of children and
focuses on the legal status of their parents.’ They would prefer to see the
provision incorporate ‘the best interest principle’ from Article 3 of the
Convention on the Rights of the Child.[43]
Victoria Legal Aid (VLA) made the following comments in
their submission:
The proposed amendment to s.21(5) of the Australian
Citizenship Act 2007 (Cth) would limit a discretion which is of long
standing in Australian citizenship law. This discretion allows the Minister to
grant Australian citizenship to persons under 18 years of age. The amendment
would allow the Minister to exercise this discretion only where the applicant
for citizenship was, at the time of the grant of citizenship, a permanent
resident, as opposed to the current regime giving discretion to grant
citizenship to applicant’s under 18 even if they are not permanent residents.
VLA notes that a broad discretion to grant citizenship to
minors formed part of the regime under the Australian Citizenship Act 1948
(Cth), and was retained when the new legislation came into effect in 2007. This
broad discretion, allowing the Minister to grant citizenship to persons under
18 years of age, recognises that children are a particularly vulnerable group.
There can be extraordinary and compelling reasons for the grant of citizenship
to children. The presence of this discretion in Australian citizenship law
recognises that the unique vulnerabilities of children sometimes raise unusual
circumstances, where a grant of citizenship is warranted. The Minister should
have the power to deal with those unusual and compelling circumstances
appropriately.
VLA does not accept that the presence of a broad discretion
under s.21(5) threatens the “integrity of the citizenship and migration
programs.”…[44]
Item 9 provides that amendments made by items 2, 3,
4, 5, 7 and 8 apply to applications made on or after those items commence.
However, item 2 does not apply in relation to a person if an application
is made on or after that commencement and the Minister is satisfied that prior
to that commencement, they had already successfully completed a test.
On 31 August 2009 the Minister for Immigration and
Citizenship announced that the Government proposed to introduce changes to
Australia’s residency requirements. According to the Minister, ‘these changes
will create a smoother path to citizenship for elite athletes and people in
specialist professions and enable Australia to benefit from the talents and
skills they bring to our country’:
The revamped requirements will create a fairer system for
people who, due to circumstances beyond their control, are currently ineligible
for citizenship. These changes will lead to more gold medals for Australia at
sporting events, as well as providing a real win for the national workforce. [45]
An article in the Australian Financial Review observed that following the changes, ‘Russian-born ice skater Tatiana Borodulina
would be eligible to compete for Australia at next year's Winter Olympics in
Vancouver’. It also reported that Tennis Australia’s Director ‘was delighted
with the changes’ because ‘it is impossible for tennis players to become
citizens while continuing in their profession because of the amount of time
they are required to be in Australia’.[46]
However, the Shadow Minister for Immigration and
Citizenship, the Hon Dr Sharman Stone MP was reported to have commented that ‘other
migrants would be "quite rightly annoyed" at a "special class
for those to [sic] win medals just for Australia"’.[47]
On 8 September the Senate Committee inquiring into the Bill
finalised its report in which it recommended that the Bill be passed. However, the Senate Committee
did not inquire into Schedule 2 of this Bill and therefore in effect only
considered half the Bill (Schedule 1). It did not consider the amendments to be
moved on behalf of the Government to introduce the special residency
requirement (Schedule 2) as these were only made publicly available on 9
September 2009. It is not clear why these proposed amendments were introduced
three months after the Bill was introduced. Moreover, these amendments are not
directly related or consequential to the amendments contained in Schedule 1 of
the Bill.
Existing paragraph 21(2)(c) of the Act provides that a
person is eligible to become an Australian citizen if (amongst other things) the
Minister is satisfied that the person satisfies the residency requirement as
set out in existing section 22 of the Act. A person satisfies the residency
requirement if they are lawfully present in Australia for a period of four
years, including a period of 12 months as a permanent resident immediately
prior to making their application.[48] Prior to 1 July 2007, under the (repealed) Australian Citizenship Act 1948 (the 1948 Act), a person was only required to have been physically present in
Australia as a permanent resident for periods totalling at least two years out
of the five years immediately before applying including one year during the two
years immediately before applying.[49]
The current Act, like its predecessor contained numerous exemptions
and concessions to the residency requirement for a person:
- who has overseas absences;
- who has been confined in prison or psychiatric institution;
- who is the spouse or de facto (including same-sex) partner of an
Australian citizen;
- who is the surviving spouse or de facto (including same-sex)
partner of an Australian citizen;
- who is in an interdependent relationship with an Australian
citizen;
- who would suffer significant hardship or disadvantage;
- who was subject to an administrative error.[50]
Existing flexibilities within the current Act to cater for
the people specifically targeted by the Schedule 2 amendments will be briefly
discussed below.
Existing subsections 22(1A) and (1B) of the Act provide that
‘a person must have been present in Australia for at least three of the
four years immediately prior to application, including at least nine months in
the 12 months prior to application’.[51]
This in effect means that a person could spend a total of 12
months overseas (in the four years before lodging their application) including
three months in the 12 months prior to lodging their application (as a
permanent resident) and still satisfy the existing residency requirement for
citizenship.
Under existing subsection 22(6)
‘periods of lawful residence, other than permanent residence, can be treated as
periods of permanent residence if the applicant can demonstrate that they would
suffer significant hardship or disadvantage if those periods were not treated as
periods of permanent residence’.[52] The Department’s Citizenship Instructions provide guidance on what would
constitute significant hardship or disadvantage. It might include:
academic (eg research, academic scholarship) or other
(sporting etc) potential is being limited or restricted, because the
opportunities to reach that potential is available only to an Australian
citizen, to the extent that it causes significant hardship (emphasis added).[53]
In addition, it is interesting to
note that under paragraph 13(4)(b) of the (now repealed) 1948 Act, the Minister
also had discretion to treat a period during which the applicant (as a
permanent resident) was not in Australia as a period in which they were in Australia if they were engaged in activities that the Minister considered ‘beneficial
to the interests of Australia’.[54] There is no corresponding provision within the existing Act to broadly make
concessions to the residency requirement on this basis.
Schedule 2 proposes to create two distinct residence
requirements. Existing section 22 will remain the same and contain the general residence requirements while proposed section 22A will create special residency requirements for persons representing Australia at international
events and proposed section 22B will create special residency requirements for persons engaged in specified kinds of work which
require the person to travel regularly outside Australia.
Items 1, 2 and 3 of the Schedule of Government
Amendments propose to substitute in paragraphs 21(2)(c), 21(3)(c) and 21(4)(d)
references to ‘residence requirement’ with references to ‘general residence
requirement’ and ‘special residence requirement’.
Item 4 substitutes the reference in subsection
22(1) to residence requirement with general residence requirement and
amends the heading to section 22 to ‘General residence requirement’.
Item 5 inserts new section 22A relating to special
residence requirements for persons representing Australia at international
events. The applicant must meet all the requirements set out in proposed
section 22A.
The applicant must satisfy the following criteria:
- the applicant seeks to represent Australia at an international event
specified in subsection 22C(1)[55];
and
- the applicant needs to be an Australian citizen to do so; and
- there is insufficient time for the applicant to satisfy the
general residence requirement; and
- the head of an organisation specified in subsection 22C(2)[56] or a person of senior position states in writing to the Minister that the
applicant has a ‘reasonable prospect’ of being selected to represent Australia
at that event; and
- the applicant has been in Australia for at least 180 days during
the two year period immediately before making the application; and
- the applicant was in Australia for at least 90 days during the 12
month period immediately before making the application; and
- the applicant was ordinarily resident in Australia during the two
year period immediately before making the application; and
- the applicant was a permanent resident for the period of two
years immediately before making the application; and
- the applicant was not an unlawful non-citizen during the two year
period immediately before the applicant made the application.
As previously mentioned, a person satisfies the current residency
requirement if they are lawfully present in Australia for a period of four
years, including a period of 12 months as a permanent resident immediately
prior to making their application. Under this proposed amendment the time a
person must actually be physically ‘present in Australia’ will be reduced and
the time a person must be a permanent resident will increase. In summary, a
person will satisfy the special residency requirement if they are:
-
‘ordinarily resident’ in Australia throughout the period of two
years (as a permanent resident) immediately prior to making their application;
and
-
‘present in Australia’ for a total of at least 180 days (which is
approximately 6 months) during that period (two years), including at least 90
days (which is approximately 3 months) in the year immediately before applying;
and
- satisfy the other criteria of proposed subsection 22A(1).
Proposed subsection 22A(2) provides that an applicant
who has been confined in a prison or a psychiatric institution by order of a
court will not satisfy the requirement in paragraph 22A(1)(c) of having to be
present in Australia for at least 180 days before making the application.
However the Minister may decide under proposed subsection 22A(3) that
subsection (2) does not apply to the applicant and that it would be
unreasonable for it to apply having taken the circumstances that led to the
confinement into account. Significantly, proposed subsections (2) and (3)
mirror existing provisions of the Act in subsections 22(1C) and 22(5A) relating
to the current residence requirement.
Proposed subsection 22A(4) provides the Minister with
discretion to treat a period as one where the applicant was a permanent
resident but because of an administrative error, the applicant was not a
permanent resident during that period for the purposes of paragraph 1(f).
Similarly, this provision mirrors existing subsection 22(5) under the general
residence requirement.
Proposed subsection 22A(5) provides that for the
purposes of paragraph 1(g) the Minister has discretion to treat a period as one
in which the applicant was not in Australia as an unlawful non-citizen but
because of an administrative error, the applicant was an unlawful non-citizen
during that period. This provision mirrors a provision in existing subsection
22(4A) under the general residence requirement.
Proposed section 22B inserts criteria concerning the
special residence requirement for persons engaged in particular kinds of work
that takes them regularly out of Australia. The following criteria apply to
persons in this category:
- the person is engaged in work that is specified in subsection
22C(3)[57] which requires the person to travel regularly outside Australia; and
- the person was engaged in that work for at least two years out of
a four year period immediately before the person made an application and that
during that four year period the person travelled regularly outside Australia
as a requirement of that work; and
- the person was in Australia for 480 days during the four year
period immediately before the person made an application; and
- the person was in Australia for 120 days during the 12 month
period immediately before the person made an application; and
- the person was a permanent resident for 12 months immediately
before the person made the application; and
- the person was not an unlawful non-citizen during the four year
period immediately before the person made the application.
In summary, a person will satisfy the special residency
requirement if they are:
-
‘ordinarily resident’ in Australia during the four years prior to
making the application;
-
physically ‘in Australia’ for a total of at least 480 days
(which is approximately one year and four months) in the four years prior to
making the application, including at least 120 days (which is approximately four
months) in the year immediately prior to making their application; and
- a permanent resident for the duration of the year immediately
before lodging the application; and
- satisfy the other criteria of proposed subsection 22B(1).
Therefore, while the person needs to be ‘ordinarily
resident’ (as opposed to physically present) in Australia for a period of four
years prior to making the application, this amendment will significantly reduce
the amount of time the person is required to be physically present in Australia.
The amount of time the person is required to be a permanent resident will
remain unchanged.
It is not clear how ‘regularly’ a person is required to
travel outside Australia in order to come within the ambit of proposed subsection
22B(1)(a).
Proposed subsection 22B(2) provides that if a person
was confined in a prison or a psychiatric institution by order of a court, the
person does not satisfy the requirement in subsection 22B(1)(c) that the person
be in Australia for at least 480 days during a four year period. The Minister
may however decide under proposed subsection 22B(3) that subsection (2)
does not apply to the person having taken the person’s circumstances into
account and that it would be unreasonable to apply subsection (2).
Note that proposed subsections (2) and (3) mirror existing
provisions in subsections 22(1C) and 22(5A) under the general residence requirement.
Existing subsection 24(5) prevents the Minister from
approving certain people becoming citizens when they are not physically present
in Australia. Proposed paragraph 24(5)(aa) provides in effect that the
Minister can approve a person becoming an Australian citizen if they satisfy
the new special residence requirements referred to in proposed sections 22A or 22B
even if they are not physically present in Australia at the time.
Item 8 states that the amendments made by Schedule 2
will apply to applications made on or after it commences (the day the Act
receives Royal Assent).
Schedule 1
The Bill implements certain of the recommendations of the
Australian Test Review Committee concerning the streamlining of processes
relating to the conduct of the citizenship test. It implements another
recommendation of the Committee concerning persons with physical or mental
incapacity as a result of suffering torture or trauma before coming to
Australia. However, the Parliament may wish to also consider the group of persons
who are part of the Humanitarian stream but who have not suffered torture or
trauma outside Australia but who may have developed some form of mental illness
subsequent to their arrival in Australia perhaps as a result of their time
spent in detention. As discussed above, a number of submissions to the Senate
Standing on Legal and Constitutional Affairs’ inquiry into the Bill have expressed
strong concerns regarding the proposed amendments requiring children to be
permanent residents.
Schedule 2
In September 2009 the Government
announced that it intended to move amendments to the Bill. These amendments
propose to insert new provisions into the Act to expand the residency
requirements to create special residency requirements for specific
people who may have difficulty satisfying the existing residential
requirements. Though there may arguably be a need to restore greater
flexibility in the Act to specifically address the difficulties experienced by
elite sportspeople and people in occupations requiring regular travel outside
Australia it may similarly be argued that the proposed amendments introduce an
unnecessary level of specificity and complexity to the 2007 Act. To this end,
it is worth remembering that the 1948 Act was replaced by the 2007 Act which
was designed to amongst other things improve clarity and ease of use. The proposed
insertion of special residency requirements (through proposed sections 22A and
22B) may also be viewed critically on the basis that these provisions have not
received the same level of scrutiny as the other provisions of the Bill. In
addition, it may be arguable that notwithstanding existing flexibilities in the
Act, the proposed ability to ‘fast-track’ the citizenship of certain people who
have spent significantly less time in Australia may sit uneasily with other
potential citizens whose citizenship may be of equal or greater benefit to
Australia. .
Moira Coombs
Elibritt Karlsen
10 September 2009
Bills Digest Service
Parliamentary Library
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