Bills Digest no. 51 2014–15

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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.

Elibritt Karlsen
Law and Bills Digest Section 
21 November 2014 

 

Contents

Purpose of the Bill

Committee consideration

Policy position of non-government parties/independents

Position of major interest groups

Financial implications

Statement of Compatibility with Human Rights

Key issues and provisions

 

Date introduced:  23 October 2014

House:  House of Representatives

Portfolio:  Immigration and Border Protection

Commencement:  Sections 1 to 3 commence upon Royal Assent. Schedule 1 commences on a day to be fixed by Proclamation or six months after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

 

Purpose of the Bill

The purpose of the Australian Citizenship and Other Legislation Amendment Bill 2014 (the Bill) is to amend the Australian Citizenship Act 2007 (Citizenship Act) and the Migration Act 1958 to:

• allow the Minister to revoke citizenship on the grounds of fraud or misrepresentation in the citizenship process, without the requirement for a conviction of relevant criminal offences (items 65, 66)
• extend the good character requirement to include applicants under 18 years of age (items 17, 21, 25, 26, 58, 60)
• include the bar on approval for criminal offences in all citizenship streams (items 15, 18, 20, 22, 57, 61)
• include reference to contemporary sentencing practices in the bar on approval for criminal offences (items 15, 18, 20, 22, 44, 45, 57, 61)
• enable the Minister to cancel approval of citizenship by conferral prior to the Pledge of Commitment if the Minister is satisfied that the applicant is no longer eligible (items 43, 46, 47, 49, 55)
• allow the Minister to defer the applicant taking the Pledge of Commitment for up to two years and align the grounds for deferral with the grounds for cancellation of approval (item 55)
• require those who automatically acquire citizenship on adoption in Australia to have commenced the adoption process before turning 18 years of age (item 13)
• require a standardised 12 month waiting period for resumption of citizenship (items 57, 61)
• clarify the residence requirements by specifying when the four year lawful period commences and that the 12 month period as a permanent resident must be continuous (items 27, 28, 29, 31, 39)
• clarify who is covered by the partner discretion in the residence requirement and insert a minimum physical presence requirement for those claiming the partner discretion for absences from Australia (items 4, 6, 35, 36)
• provide the power to make a legislative instrument setting out when a period of unlawful presence may be treated as lawful presence (items 33, 38, 40, 41, 42)
• put beyond doubt that children born in Australia to parents with diplomatic and other privileges and immunities are not eligible for Australian citizenship (item 12)
• provide a discretion to revoke citizenship by descent in place of the current operation of law provision (items 16, 19, 64)
• limit automatic acquisition of citizenship at ten years of age to those persons who have maintained lawful residence in Australia throughout the ten years (items 7, 12)
• clarify the provision giving citizenship to a child found abandoned in Australia (items 10, 12, 14)
• make holders of prescribed visas eligible for citizenship by conferral before entering Australia (items 5, 8, 25)
• enable use and disclosure of personal information collected about a client under the Migration Act to be used for the purposes of the Citizenship Act and vice versa (items 74, 77)
• provide that personal decisions made by the Minister, taken in the public interest, are not subject to merits review (items 69, 72)
• provide the Minister with the power to set aside decisions of the Administrative Appeals Tribunal (AAT) concerning character and identity if it would be in the public interest to do so (item 73)
• align access to merits review for conferral applicants under 18 years of age with citizenship eligibility requirements (item 71) and
• provide that the Australian Citizenship Regulations 2007 (the Citizenship Regulations) may confer on the Minister the power to make legislative instruments (item 76).

Committee consideration

Legal and Constitutional Affairs Legislation Committee

On 30 October 2014, the Senate referred the provisions of the Bill to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 1 December 2014. The reasons for referral were to allow detailed consideration of the provisions of the Bill to ensure it did not have unintended adverse consequences and to facilitate public submissions to ensure stakeholder views can be taken into account.[1] However, the closing date for submissions was 6 November 2014—only one week after the inquiry commenced. Most submitters expressed concerns as to the extremely limited time available to consider the legislation in any detail and to prepare a submission. At time of writing, ten submissions had been received by the Committee (discussed in further detail below under the heading ‘Key issues and provisions’). Details of the inquiry are at the inquiry webpage.[2]

Policy position of non-government parties/independents

The Australian Labor Party (ALP) opposed the Bill when it was debated in the House of Representatives on 30 October 2014. As the Shadow Minister for Citizenship and Multiculturalism, Michelle Rowland explained, the ALP opposed the Bill on a procedural basis, because it simply had not had enough time to consider the legislation.[3] The Bill was brought on for debate only four sitting days after it was introduced and contained ‘some 100 pages of legislative material’.[4] The Shadow Minister was of the view that ‘the changes contained in this Bill are not driven by any urgency nor do they have any implications for the national security situation we are currently facing...the Government’s attempt to ram through this legislation without providing an opportunity for proper and careful consideration shows a lack of respect for our citizenship program… Labor’s substantial position on this Bill will be reflected by the way in which we deal with the Bill in the Senate, having had the opportunity to fully and properly consider the Bill over the next two weeks’.[5]

It is not currently known whether the Australian Greens, the Palmer United Party and the crossbenchers support or oppose this Bill, or whether they will seek amendments to it.

Position of major interest groups

The position of major interest groups is discussed in further detail below under the heading ‘Key issues and provisions’.

Financial implications

The Explanatory Memorandum notes that ‘the financial impact of these amendments is low. The estimated costs associated with the implementation of the proposed amendments will be met from within the Department of Immigration and Border Protection’s (the Department’s) existing funding’.[6]

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights can be found at page 76 of the Explanatory Memorandum to the Bill. As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.

At time of writing, the Parliamentary Joint Committee on Human Rights had not commented on the Bill.

Key issues and provisions

Expanding the exception to acquisition of citizenship by birth

Item 12 expands the list of people who will no longer be eligible for automatic acquisition of Australian citizenship. Existing subsection 12(1) of the Citizenship Act provides that a person born in Australia is an Australian citizen if and only if a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born (paragraph 12(1)(a)); or the person is ordinarily resident in Australia throughout the period of ten years beginning on the day the person is born (paragraph 12(1)(b), known as the ‘ten year rule’).[7] Currently the only exception to this general rule is in subsection 12(2) and it relates to enemy occupation. This amendment proposes to insert four additional exceptions to the ten year rule, so that people in the following categories will not be Australian citizens:

• a person born in Australia if at any time during the ten years following their birth a parent of the person was entitled to any diplomatic or consular privileges or immunities under specified Acts (proposed subsection 12(3))
• a person born in Australia if at any time during the ten years following their birth the person was present in Australia as an unlawful non-citizen (proposed subsection 12(4))
• a person born in Australia if at any time during the for ten years following their birth the person was outside Australia and, at that time, did not hold a visa permitting them to travel to, enter and remain in Australia (excluding New Zealand citizens) ((proposed subsections 12(5) and (6)) and
• a person born in Australia if a parent of the person did not hold a substantive visa at the time of the person’s birth and that parent has entered Australia on one or more occasions before the person’s birth, and at any time during the period beginning on the day that parent last entered Australia and ending on the day of the person’s birth, that parent was present in Australia as an unlawful non-citizen (proposed subsection 12(7) – the parental status exception)

The Statement of Compatibility with Human Rights explains the reason for these proposed amendments as follows:

In its February 2000 report, Australian Citizenship for a New Century, the Australian Citizenship Council recommended that the provisions relating to the acquisition of Australian citizenship by birth remain unchanged, but that the Government monitor the use of paragraph 10(2)(b) [the then equivalent of current paragraph 12(1)(b)] and take appropriate action to tighten the provision if evidence of abuse emerges. Concerns have since been raised that the ten year rule has the effect of encouraging some temporary residents and unlawful non-citizens to have children in Australia and to keep their child onshore until at least their tenth birthday, whether lawfully or unlawfully, in the expectation that the child will obtain citizenship and provide an anchor for family migration and/or justification for a ministerial intervention request under the Migration Act 1958.[8]

According to the Department, an average of 400 children a year apply for citizenship under the ten year rule.[9]

Eminent Australian citizenship law scholar, Professor Kim Rubenstein of the ANU College of Law has expressed concern that the proposed exceptions undermine the purpose of paragraph 12(1)(b):

I am concerned that all these exceptions undermine the purpose of s 12(1)(b). The policy underpinning s 12(1)(b) is to include as automatic citizens children born in Australia who do not satisfy 12(1)(a) but who are identified as citizens due to developing a significant connection to Australia through residence in the first 10 years of their life. Before 1986 all children born in Australia were Australian citizens by birth.

When the Act changed, there was a desire that a further connection through a PM [permanent resident] parent or Citizen parent was needed, but also that birth and residence together represented a significant connection to Australia that should be automatically recognized at the age of ten. Those first ten formative years are crucial and the amendment proposed undermines the significance of those significant years as an expression and acceptance of membership through residence, regardless of one’s formal visa status.

As Attachment A to the Bill regarding the Statement of Compatibility with Human Rights states at page 9:

“In effect, the ten year rule provides Australian citizenship to children who were born in Australia, have spent their formative years here and have their established home here, regardless of their visa status.”

I would caution against an approach that impacts upon this important principle…[10]

Her concerns are shared by the Australian Human Rights Commission (AHRC) which identifies four broad groups of children who will potentially be excluded by the amended ten year rule, namely: children of foreign diplomats; children who were ‘unlawful non-citizens’ at any time before their tenth birthday; children who left Australia at any time before their tenth birthday and did not hold a visa entitling them to return to Australia; and children who have a parent who was an ‘unlawful non-citizen’ and who did not hold a substantive visa when the child was born. With respect to children of refugees, the AHRC points out that under the proposed amendments, children born in Australia to parents who are refugees may be denied citizenship when they turn ten years old if:

• the child’s parents arrived in Australia without a visa and sought asylum
• the child is born either while the parents are in immigration detention, in community detention or in the community on a bridging visa and
• the parents are subsequently granted temporary protection visas (TPVs) and live in Australia for the next ten years while their child grows up. [11]

With respect to refugee children, the AHRC argues that:

This Bill would discriminate between children who were born in Australia and have been lawfully present in Australia for 10 years, based solely on the initial immigration status of their parents. The Explanatory Memorandum to the Bill does not deal with this issue at all. No legitimate object has been put forward in order to justify the discriminatory treatment. In the absence of a legitimate object, the provisions will be in breach of articles 2 and 7 of the CRC [Convention on the Rights of the Child] and articles 2 and 24(3) of the ICCPR [International Covenant on Civil and Political Rights].[12] [Footnotes omitted].

Associate Professor Alexander Reilly, Director of the Public Law and Policy Research Unit at the University of Adelaide similarly considers that, ‘it is wrong in principle to deny automatic citizenship to a child who was born in Australia and spent their first ten years living in Australia, regardless of their immigration status’:

Their immigration status, or that of their parents, is irrelevant to the depth of their connection to Australia. To use immigration status as a ground to deny citizenship is to put form over substance…We submit further that there is a chance that the amendment is unconstitutional…[13]

The new exception to the ten year rule relating to people born to a parent who had diplomatic privileges and immunities (proposed subsection 12(3)) will apply to people born on or after commencement (subitem 78(2)). The new exception relating to parental status (proposed subsection 12(7)) will apply to people born, and entries to Australia, on or after commencement (subitem 78(5)). The other amendments to the ten year rule (proposed subsections 12(4)—(6)) will apply to persons who turn ten years of age on or after the date of commencement (subitems 78(3) and (4)). According to the Department, ‘this is necessary if the changes are to have any practical effect in the next few years. Applying the changes only to children born after commencement would mean that children born in Australia in the last ten years, regardless of their migration status, would continue to obtain citizenship by operation of law throughout the next ten years’.[14]

Clarify the provision giving citizenship to a child found abandoned in Australia

Existing section 14 of the Citizenship Act provides that a person is an Australian citizen if they are found abandoned in Australia as a child, unless and until the contrary is proved. Proposed subsections 12(8)—(9) provide that a person found abandoned in Australia as a child is taken to have been born in Australia and is taken to be a person to whom paragraph 12(1)(a) (see above) applies unless and until it is proved that the person was outside Australia at any time before the person was found abandoned in Australia, or the person is not a person in relation to whom paragraph 12(1)(a) applies.

The Statement of Compatibility with Human Rights notes that this amendment ‘is consistent with the Convention on the Reduction of Statelessness 1961 as it returns the provision to the intention of Article 2 of that Convention, which effectively requires that a foundling be dealt with as a citizen by birth unless and until it is determined that they are not a citizen by birth’.[15]

Further information about the need for this amendment is contained in the Department’s submission to the Senate Legal and Constitutional Affairs Committee, which states:

The department is currently facing litigation in which it is claimed that the wording of the abandoned child provision is open to the interpretation that a person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until it is proved that the person was not found abandoned. Such an interpretation is contrary to the policy intention of the provision, which is that a person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until it is proved that the person was not an Australian citizen. To remove this element of doubt about what has to be proven, the Bill relates the presumption for abandoned children to citizenship by birth. It also makes it clear that the presumption applies unless and until it is proven that the person does not meet the requirements of the citizenship by birth provisions.

The final concern with the abandoned child provision is that the absence from the Citizenship Act of a definition of ‘found abandoned’ means the phrase takes its ordinary or dictionary meaning. This, combined with the delinking of the provision from the citizenship by birth provision, raises concern that it may be open to exploitation by people seeking to bypass migration requirements.

For example, it could be claimed that a child who arrived unlawfully ostensibly unaccompanied by a parent or guardian, was found abandoned in Australia. The onus would then be on the Minister’s delegate to prove that the child either was not found abandoned or is not a citizen. If no-one accepts or is shown to have had responsibility for the child at the time the child was found, it would be difficult to conclude that the child was not abandoned. If the identity of the child is unknown, it would not be possible for the department to prove that the child is not a citizen even though, for example, it is known that the child arrived by boat.

It is therefore proposed to amend the abandoned child provision to clarify that the presumption of citizenship by birth does not apply if the child is known to have been physically outside Australia on or before the day on which it is claimed the child was found abandoned. This would ensure that the presumption is not available to anyone who can be identified as having been born outside Australia.[16]

Extending the good character requirement to minors

Item 17 removes from existing paragraph 16(2)(c) of the Citizenship Act the words ‘and the person is aged 18 or over at the time the person made the application’. The effect of this amendment is that for applications for citizenship by descent the Minister must be satisfied that the applicant is of good character, regardless of the applicant’s age at the time the application was made.[17] Item 21 makes an identical amendment to paragraph 19C(2)(g) which relates to applications for citizenship for adopted persons. Item 26 similarly applies the character test to persons aged under 18 years who apply for citizenship by conferral.

The Explanatory Memorandum notes that ‘in practice, the effect of the amendment is that the Minister would now seek criminal history records for 16-17 year-olds. However, if the Minister becomes aware of an applicant who has character issues and is aged younger than 16, it would be possible to assess that applicant against the character requirement’.[18] The Statement of Compatibility with Human Rights also relevantly notes that the proposed change is similar to provisions which currently exist in the Migration Act,[19] which do not have an age limit for ‘good character’ and that ‘it is appropriate that the assessment of the character of applicants for citizenship is at least as thorough as the assessment of character in the migration context’.[20] The Department also emphasises that ‘a finding that an applicant is not of good character does not prevent them from making a subsequent application for citizenship, if they are able to show that they are of good character at the time of the decision on their later application’.[21]

However, Professor Kim Rubenstein is of the view that seeking to limit citizenship by descent, in similar terms to limitations on citizenship by conferral (by requiring the child to now be covered by the character provisions) represents a significant departure from citizenship policy that broadly recognises a connection to a state through a parent, regardless of the character of the child.[22] As she explains:

I would be concerned that character matters for children would be the beginning of an unfair assessment of a child that should be not relevant to determining access to citizenship. This proposed change is not dissimilar for instance to deciding to put a limit on automatic citizenship in territory, conditional upon the character of the child at the age of 10 for instance. That child is still a child of an Australian citizen and there is a presumption that by virtue of that family relationship there is a connection to the Australian people… I am not re-assured by the statements in Attachment A – Statement of Compatibility with Human Rights that the ACIs [Australian Citizenship Instructions] will provide a necessary protection to the principles under the Convention on the Rights of the Child being given sufficient weight in decisions concerning children and character. Unless this is specifically written into the Act, that the Minister in making decisions relating to character MUST take into account the Convention and give it appropriate weight, then it is difficult to see how character and the supposed interests of the State won’t take precedence in a way that prejudices the best interests of the child.[23]

Her concerns are shared by the Chief Executive Officer of UNICEF Australia, Norman Gillespie, who relevantly observed:

The scope of these provisions could have devastating impacts in depriving young people who have committed offences at a young age from attaining Australian citizenship. This impact would extend to families who would have to deal with the challenging prospect of not being able to hold Australian citizenship with their children or to have their citizenship application delayed because of the situation of a child. It is well established both internationally and nationally, that the culpability of children before the law is less than adults due to the difference in psychological and physical development as well as their emotional and education needs. Children’s psychosocial capacity is not fully developed and evolving throughout childhood heightening the propensity of children to take risks, and increasing general susceptibility to peer influence and to immediate reward. Children are therefore at increased risk of contact with the criminal justice system as their ability to make decisions, control impulses and understand long term consequences isn’t completely developed.

The denial of any prospects of citizenship on this basis could therefore be inconsistent with established knowledge and practice regarding the capacity and culpability of children, and render a disproportionate consequence for mistakes that are not uncommonly made by young people.[24] [Footnotes omitted].

Associate Professor Alexander Reilly, Director of the Public Law and Policy Research Unit at the University of Adelaide similarly had concerns about this amendment:

There are two concerns here. First, if parents of minors successfully apply for citizenship, the citizenship of minors should not be refused on character grounds, as this risks the permanent separation of the nuclear family, which is contrary to the best interests of the family themselves, and also the Australian community. Second, the commission of offences by minors is an unreliable measure of character. We distinguish between adults and minors in the criminal law precisely because there is a much greater prospect for the rehabilitation of minors.[25]

Cancellation of citizenship application approvals

In brief, the Minister may cancel an approval for citizenship by conferral under existing section 25 of the Citizenship Act if certain criteria are no longer satisfied or if a person fails to make the pledge of commitment within 12 months of receiving their approval. This process should not to be confused with cessation of Australian citizenship.

Item 47 inserts proposed subsection 25(1A) which will be a mandatory cancellation provision. It provides that the Minister must cancel a citizenship application approval given under section 24 of the Act if:

• the person has not yet become an Australian citizen (that is, they have not made a pledge of commitment under section 28)
• approval was given on the basis of subsection 21(2) (general eligibility), 21(4) (person aged 60 or over or has hearing, speech or sight impairment) or 21(5) (person aged under 18) and
• the Minister is now satisfied that the person would not be given approval because the Minister is not satisfied as to the identity of the person, or is satisfied that the applicant poses a risk to national security.[26]

As noted in the Explanatory Memorandum, this amendment is consistent with the mandatory bar on approvals for identity and national security reasons in existing subsections 24(3), (4) and (4A).[27]

Item 49 amends existing subsection 25(2) of the Act to provide that the Minister may cancel an approval given on the basis of subsections 21(2), (4) and (5) if eligibility requirements other than those relating to identity and national security are not met. Existing subsection 25(2) provides that the Minister may cancel an approval if the person has not yet become an Australian citizen and one of the following applies:

• the person was approved under subsection 21(2), 21(3) (permanent or enduring physical or mental incapacity) or 21(4) and the Minister is satisfied that the person is not a permanent resident, or not likely to reside or to continue to reside in Australia or to maintain a close and continuing association with Australia, or is not of good character or
• the person has failed to make a pledge of commitment within 12 months since approval and the reason for the failure is not one that is prescribed by the regulations.[28]

Proposed subsection 25(2) would amend the first situation by providing that the Minister may cancel an approval if the person has not yet become an Australian citizen and:

• the approval was given on the basis of subsection 21(2), 21(4) or 21(5) and
• the Minister is satisfied that the person would not be given an approval under section 24 (other than because of subsections 24(3) (identity), (4) or (4A) (national security), or (5) (person not present in Australia).[29]

This amendment will exclude from the operation of section 25 people with a permanent or enduring physical or mental incapacity.[30] It will also expand the circumstances for cancelling an approval, so that cancellation can occur on any basis that the Minister may or must refuse a citizenship application under section 24 (other than identity, national security, or person not present in Australia). Therefore, as noted in the Explanatory Memorandum:

The new subsection 25(2) of the Act also gives the Minister the discretion to cancel a person’s approval if other eligibility requirements are not met, for example if the person had been approved as meeting a residence requirement but in fact they did not meet any of the residence requirements. In addition, the Minister could cancel approval if he or she had not been aware that one of the grounds for the bar on approval concerning criminal offences in subsection 24(6) applied, such as the person was subject to pending proceedings for an offence against Australian law or was subject to a good behaviour bond.[31] [Emphasis added].

Item 55 expands the grounds upon which the Minister can require a person to delay making a pledge of commitment. Current subsection 26(3) allows the Minister to determine that a person cannot take the pledge until the end of a specified period if the Minister is satisfied that:

• a visa held by the person may be cancelled (paragraph 26(3)(a)) or
• the person has been or may be charged with an offence under Australian law (paragraph 26(3)(b)).

Item 55 would add proposed paragraph 26(3)(c), so that the Minister may also determine that a person cannot make the pledge until the end of a specified period (see item 56) if the Minister is considering cancelling an approval given under section 24 under proposed subsection 25(1A) (mandatory cancellation); or under subsection 25(1) because of the application of proposed subsection 25(2) (eligibility criteria not met). As the Explanatory Memorandum explains, the purpose of this amendment is to enable the Minister to defer a person making the pledge of commitment to become an Australian citizen if it appears that the approval of citizenship for the person may be cancelled.[32]

Item 56 increases the maximum time in which a pledge of commitment can be delayed from 12 months to two years.

Expanding the basis upon which citizenship can be revoked

Item 66 inserts proposed section 34AA into the Citizenship Act which will significantly expand the basis upon which Australian citizenship can be revoked by the Minister. Under this proposed amendment, citizenship (acquired by application) will be able to be revoked if the Minister is satisfied that the person obtained approval to become an Australian citizen as a result of fraud or misrepresentation, connected with:

• the Minister approving the person becoming an Australian citizen
• the person’s entry into Australia before the Minister gave the approval or
• the grant to the person (before the Minister gave the approval) of a visa or of a permission to enter and remain in Australia and

the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

The Note to proposed section 34AA states that ‘a child of the person may also cease to be an Australian citizen: see section 36’. However, the Statement of Compatibility with Human Rights relevantly notes that ‘the proposed amendment will not permit a child to become stateless due to their parent’s act or acts of fraud or misrepresentation’.[33] In addition, as the power to revoke is discretionary, ‘if a child’s citizenship is revoked as a result of a decision made under this provision, by operation of law that child will then hold an ex-citizen visa, ensuring that they maintain lawful status’.[34]

Existing section 34 of the Citizenship Act outlines the circumstances in which the Minister can revoke a person’s citizenship.[35] In brief, a person’s citizenship can be revoked (when acquired by application) when the person has been convicted of certain offences (including migration related fraud) or the Minister’s approval was obtained as a result of third-party fraud for which another person was convicted and the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

In contrast to the existing revocation power contained in section 34 of the Citizenship Act, under the amendments being proposed in this Bill, citizenship could be revoked if the Minister’s approval was obtained as a result of fraud or misrepresentation even if the citizen has not actually been convicted of any such offence (in fact the conduct need not even constitute an offence) and even if the fraud or misrepresentation was not committed by the citizen themselves, but instead committed by ‘any person’ any time in the proceeding ten years (proposed subsections 34AA(1)—(3). (However, the Minister would still need to be satisfied that it would be contrary to the public interest for the person to retain citizenship – proposed paragraph 34AA(1)(c)). The term ‘fraud’ in this context is not defined, but proposed subsection 34AA(4) clarifies that the concealment of material circumstances would constitute misrepresentation. The Department notes that ‘this new provision would include appropriate safeguards, including a public interest test, review rights and a time limit beyond which citizenship could not be revoked’.[36]

The Statement of Compatibility with Human Rights notes that the purpose of this amendment is ‘…to provide stronger disincentives for people to provide false and misleading information in citizenship applications. It provides mechanisms to revoke citizenship after the fact when that citizenship was obtained through misrepresentation and fraud, particularly given the fact that there are often limited resources to prosecute all but the most serious fraud cases in light of competing prosecutorial priorities’.[37] The Statement of Compatibility with Human Rights only assessed the proposed amendment in light of obligations arising under the Convention on the Rights of the Child.

However, the AHRC in its submission to the Senate Legal and Constitutional Affairs Committee, expressed opposition to this amendment on a number of grounds. In the AHRC’s view, the absence of a conviction of an offence in relation to fraud or misrepresentation represents the removal of an important safeguard contrary to the principles of due process and would significantly decrease the degree of proof required. It also expressed concerns about the way in which the amendment might impact upon a child. It pointed out that contrary to the Government’s claims in the Statement of Compatibility with Human Rights, under the Bill a child could be deprived of his or her citizenship and made Stateless even if the child was not responsible for the fraud or misrepresentation themselves (see items 66 and 67). The AHRC also pointed out that this amendment is arguably broader than that permitted under the Convention on the Reduction of Statelessness, as it could result in the revocation of a person’s citizenship as a result of a misrepresentation of which they were unaware.[38] Though not expressly articulated in the Bill itself, the Explanatory Memorandum relevantly notes that as the power to revoke is discretionary it will be open to the Minister to consider arguments that the person was unaware of the fraud or misrepresentation in deciding whether to revoke their citizenship.[39]

The Asylum Seeker Resource Centre was similarly opposed to this amendment, noting that it had the potential to disproportionately affect refugees when they seek citizenship:

Given the reality of seeking asylum, this proposed amendment has the potential to disproportionately affect refugees when they seek citizenship, due to the nature of their experiences and journey to Australia. Over the past 13 years, the ASRC Human Rights Law Program has worked with over 3000 asylum seekers. Our experience shows that asylum seekers regularly flee for their lives by whatever means necessary. This may mean using false documents to obtain necessary visas to enter a safe country…

Further, due to their vulnerability, asylum seekers may unknowingly submit fraudulent documentation by relying on trusted friends or worse still, they may be misled by poor migration agents that provide fraudulent advice. The proposed legislation does not provide the opportunity for asylum seekers or other vulnerable applicants to explain the circumstances of the fraud or misrepresentation and thus the ASRC is very concerned that refugees with accepted claims for protection will be caught up in this amendment.[40]

Associate Professor Alexander Reilly also observed that ‘these new provisions lower the bar too far, and have the perverse effect of rendering citizenship less secure’:

For citizenship to be revoked the fraud should be personal to the applicant, it should constitute an offence, and the applicant should have received a conviction for the fraud offence. Furthermore, there ought to be an independent confirmation of the existence of these criteria. These limitations are important to safeguard the security of a person’s citizenship. Although it is right and proper for the Department of Immigration to make rigorous and proper inquiries into a person’s character and the integrity of their application before citizenship is granted, after citizenship is granted, the onus must fall squarely on the Department to present clear evidence of fraud. The primary value of citizenship is the security it provides to the applicant. If grounds for revocation are too broad, and they can involve circumstances outside of the knowledge of the citizen, security of citizenship is compromised.[41]

Personal decisions made by the Minister not reviewable by the AAT

Item 69 inserts proposed subsection 47(3A) into the Act. This provision expressly introduces a distinction into the Act between decisions which are made by the Minister (by his delegate) and those decisions that are made by the Minister personally. The reason for this distinction is presumably to give the Minister greater power with respect to decision-making in the citizenship context and to ensure such decisions are not subject to merits review by the AAT.

Existing subsection 47(3) of the Act requires the Minister (or the delegate) to give an applicant the reasons for an adverse decision. Proposed subsection 47(3A) provides that if a decision is made by the Minister personally, the notice may include a statement that the Minister is satisfied that the decision was made in the public interest. However, if the notice includes such a statement, the decision will not be reviewable by the AAT (see item 72 below).

Item 72 inserts proposed subsection 52(4) into the Act. This provision removes the right of an applicant to seek merits review of an adverse decision if that primary decision was made by the Minister personally, and the notice of decision provided under section 47 included a statement that the Minister is satisfied that the decision was made in the public interest.[42] Thus the types of decisions (made by the Minister personally containing a statement that the decision was made in the public interest) which will not be reviewable include:

• a decision under section 17 to refuse to approve a person becoming an Australian citizen
• a decision under section 19D to refuse to approve a person becoming an Australian citizen
• a decision under section 24 to refuse to approve a person becoming an Australian citizen
• a decision under section 25 to cancel an approval given to a person under section 24
• a decision under section 30 to refuse to approve a person becoming an Australian citizen again
• a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship
• a decision under proposed section 33A to revoke a person’s Australian citizenship where approval should not have been given and
• a decision under section 34 or 34AA or subsection 36(1) to revoke a person’s Australian citizenship.

It is relevant to note that the Explanatory Memorandum states that ‘it is expected that only appropriate cases will be brought to the Minister’s personal attention, so that merits review is not excluded as a matter of course’.[43] Significantly, however, it does not elaborate on what would typically be an ‘appropriate’ case.

By way of explanation for this amendment, the Statement of Compatibility with Human Rights relevantly notes:

The Australian Administrative Law Policy Guide states “As a matter of policy, an administrative decision that will, or is likely to, adversely affect the interests of a person should be reviewed on the merits, unless there are factors justifying the exclusion of merits review.” The Administrative Law Council has stated that “policy decisions of a high political content”, particularly those made personally by the Minister, may be justifiably excluded from merits review (1999 paper on What Decisions should be Subject to Merits Review?).[44]

However, the AHRC relevantly noted:

The issue that is not addressed sufficiently in the Explanatory Memorandum is whether the proposed exemption from merits review is adequately targeted to exclude only those decisions of a ‘high political content’. That is, is it necessary to exempt every personal exercise by the Minister of a power under the Australian Citizenship Act from merits review, where the Minister states that the power is being exercised in the public interest?[45]

The Department has also emphasised that ‘the Citizenship Act itself has a precedent for non-reviewable personal decisions of the Minister, being section 52(3)(b).[46] In this instance, the AAT cannot review any exercise, or failure to exercise, of the Minister’s personal discretionary power under sections 22A(1A) or 22B(1A) concerning alternative residence requirements’.[47]

The Explanatory Memorandum also notes ‘as an elected Member of Parliament, the Minister represents the Australian community and has a particular insight into Australian community standards and values and what is in Australia’s public interest. As such, it is not appropriate for an unelected administrative tribunal to review such a personal decision of a Minister on the basis of merit, when that decision is made in the public interest’.[48]

What is in the ‘public interest’ remains a matter for the Immigration Minister to personally decide and thus it will invariably be a source of much contention. The High Court has described the term ‘public interest’ as:

… a discretionary value judgment to be made by reference to undefined factual matters, confined only ’in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any object the legislature could have had in view’.[49]

Though the Minister is required to table a statement in Parliament setting out his decision (if it is made in the public interest) and the reasons for the decision,[50] Associate Professor Alexander Reilly points out that ‘this requirement indicates the importance of transparency in the decision making process…[but] tabling a decision in Parliament is a cumbersome mechanism and provides no remedy for a person who is aggrieved by a decision that is made in error. Both transparency and good process are better served through the established merits review process’.[51]

The only real check on this largely unfettered discretionary power would be judicial review, which the Explanatory Memorandum confirms would remain available.[52] However, courts do not examine the merits of a case – that is whether it was the correct or preferable decision on all the facts of the case, rather they look at the legality of the case to ensure there has not been any jurisdictional error in the making of the decision (for example, failing to provide natural justice, failing to take into account a relevant consideration, applying policy that is inconsistent with the legislation, or misapplying the law).

The Asylum Seeker Resource Centre ‘firmly believes that decisions relating to the revocation of citizenship must be subject to legislative safeguards, including access to merits review. In the situation of refugees, such decision making has the potential to render a person stateless, see them indefinitely detained or force them to return to face persecution. In light of these consequences, it is wholly inappropriate for the Minister to hold such unchecked power’.[53]

Minister’s new power to set aside AAT decisions

Item 73 inserts proposed section 52A into the Act. This provision will give the Minister the power to override certain decisions of the AAT.[54] For instance, if the Department refuses an application for citizenship (whether by descent, conferral or adoption) because the person was not of ‘good character’ or the delegate was not satisfied of the person’s identity and the person appeals to the AAT, which finds in the applicant’s favour (by setting aside the delegate’s decision), then the Minister can override the AAT decision if satisfied it is in the public interest to do so, provided the person has not already become an Australian citizen.

Significantly, the Explanatory Memorandum notes that while the power of the Minister is restricted to decisions where the initial decision included the fact that the delegate was not satisfied that the person was of ‘good character’ or was not satisfied of the identity of the person ‘this does not need to be the sole reason for the initial decision of the delegate’.[55] This power will not extend to revoking citizenship.[56] Under proposed subsection 52B(3) the Minister would be required to table in each House of Parliament a statement that, amongst other things, sets out the reasons for the Minister’s decision.

The primary reason this current amendment is being introduced is because the Government disagrees with the outcome of certain AAT decisions which have found persons to be of good character despite having been convicted of certain serious offences such as manslaughter, people smuggling and domestic violence.[57] The Government is of the view that such decisions are outside community standards.[58] Though the Explanatory Memorandum does not identify the particular cases that are being called into question, it is arguably relevant to attempt to identify some of these matters so that the rationale behind these decisions (rather than just their outcomes) can be elucidated and scrutinised (one of these matters is discussed in further detail below).

A decision of the AAT can be appealed to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975 on errors of law.[59] However, the Minister did not appeal any of the six decisions that have been called into question, because ‘there were no grounds’ to do so.[60]

Similar powers have existed since 1998 in the Migration Act to substitute a decision of the AAT (to not refuse to grant a visa or cancel a visa on character grounds) with a decision that is made by the Minister personally in the ‘national interest’.[61] The rules of natural justice do not apply to such decisions of the Minister and they are not merits reviewable (under parts 5 or 7 of the Migration Act). When introducing the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998, Senator Rod Kemp (then Assistant Treasurer) similarly explained that ‘over the past 12 months or so, the AAT has made a number of character decisions that are clearly at odds with community standards and expectations’.[62] He continued:

The AAT has found a number of non-citizens, who have been convicted of very serious crimes, to be of good character, and has ruled that they should be granted a visa. This has alarmed the community and I might say the community, when they are aware of these decisions, hold the Government and not the AAT responsible. It is essential that the Minister, acting personally, have the power to intervene or set aside such decisions in the national interest. The Minister should, however, continue to be required to table the making of any such decisions in the Parliament.[63]

The Department has pointed out that the independence of the AAT has not been threatened by the existence of the Minister’s power in the Migration Act:

The AAT has stated that its independence has not been threatened by this power in the Migration Act. Indeed the then president of the AAT, Justice Downes, in Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 emphasised the role of the AAT as part of the executive government of the Commonwealth, noting that the AAT does not exercise judicial power, but is rather part of the Commonwealth administration which should work together with the Minister, through their respective roles, to advance of good administration. In relation to section 501A of the Migration Act, he said:

“In making a decision under section 501A the Minister is in a special position. The section gives the Minister power to set aside the decision of the Tribunal.… A necessary consequence of the Minister having this unusual power to overrule the Tribunal is that the Tribunal should take note of occasions in which the power is exercised.

None of this affects or threatens the independence of the Tribunal, which has never been in doubt, as the Tribunal's recent decisions show.

…It is not appropriate, as some commentators have done, to identify a supposed competition or conflict between a Minister and the Tribunal and to support one side or the other. We are all constituent parts of the one Commonwealth administration which should work together through our respective roles to advance of good administration. Where the Tribunal makes a final decision within power; where a Minister makes a final decision within power, they are both contributing to good administration.” [87, 88 and 91, emphasis added].[64]

The Statement of Compatibility with Human Rights notes that this amendment ‘is aimed at the legitimate objective of ensuring that the public interest is taken into consideration when assessing issues of character and identity, particularly where the AAT presently has no obligation to do so’.[65] However, it is not clear why this Bill does not propose to insert a statutory definition of ‘good character’ into the Citizenship Act (to be approved by Parliament), or at a minimum and on a policy level, update the Citizenship Instructions to more accurately reflect the Government’s particular concerns with respect to persons who have been convicted of serious offences. Such mechanisms would arguably facilitate greater transparency and accountability in an area of administrative decision-making which is particularly fraught with the making of subjective value judgements. Associate Professor Alexander Reilly argues that this amendment should be abandoned because it is of utmost importance that the ‘correct and preferable’ decision is made and administrative review ensures decisions of the executive government satisfy this criterion. He further argues that ‘the best way to remedy [decisions that are not consistent with community standards] is to make a ministerial direction that will guide the AAT in future decision making, not to remove merits review in the AAT’.[66]

Though it is understandable that the Minister would like to have ‘the final word’ on citizenship applications involving serious offences, doing so arguably opens the possibility that certain people will continue to be further ‘punished’ for their convictions by being denied Australian citizenship. As observed by the Asylum Seeker Resource Centre this amendment ‘will allow this and future governments to carry out their political will of the day, rather than allowing decisions to be passed through appropriate and accepted checks and balances’.[67]

Good character

The Citizenship Act requires that applicants must be of ‘good character’. However, the term ‘good character’ is not defined in the Citizenship Act nor was it defined in its predecessor, the Australian Citizenship Act 1948. This is so despite a clear recommendation from the Senate Committee inquiry into the Provisions of the Australian Citizenship Bill 2005 and the Australian Citizenship (Transitionals and Consequentials) Bill 2005 that the ‘good character’ test be defined in the Bill, which the Committee said could be achieved by adopting the existing definition in the Migration Act:[68]

The Committee notes that the existing good character requirement under the 1948 Act remains unchanged in the Bill. In light of the detailed eligibility criteria and the new requirement to exclude a person on national security grounds, it would be appropriate to reconsider how the character test in the citizenship context is intended to operate. If the good character test is intended to deal with a specific mischief it should be elaborated to the maximum extent possible in the Bill. This could be achieved by the adopting the existing definition in the Migration Act.[69]

Nonetheless, most AAT and Federal Court decisions have adopted the following definition from the 1996 Full Bench of the Federal Court judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs:

Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[70] [Emphasis added].

The Australian Citizenship Instructions (ACIs or Instructions) provide guidance to decision-makers (including the AAT) by providing a non-exhaustive list containing a range of considerations that should be taken into account when assessing good character.[71] With respect to offences, decision-makers are asked to consider whether the applicant has committed any offences, whether they were serious or minor in nature, whether there were any victims of the offence, whether the offence was pre-meditated, and the length of the sentence imposed (if any). Decision-makers are also encouraged to look at the decisions made by courts about the applicant, particularly sentencing remarks, as they give an insight into the character of the applicant, as do parole reports.

Once the behaviour of the applicant has been assessed, the decision-maker is then asked to turn their mind to whether there are any mitigating factors to be taken into account to determine if the applicant could be of good character anyway. With respect to such mitigating factors, decision-makers are asked to consider the length of time between the date of the offence or conviction and application for Australian citizenship, noting that in the case of a serious offence, a significant amount of time may need to have passed before the decision maker is satisfied that the person is now of good character.

Decision-makers are also asked to consider whether the applicant has accepted responsibility and shown remorse for their conduct, and how the applicant has behaved since being released from custody, while noting that a reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws. Decision-makers are also asked to consider the applicant’s age at the time the offence was committed, whether they have rehabilitated themselves (for example, have they undertaken drug and/or alcohol counselling, an anger management course, a program or counselling for sex offenders or any other program which addresses risk factors relating to their offending), and whether there were any extenuating circumstances relating to the offence (for example, an offence committed under duress or under periods of psychological disturbance).

The Instructions also relevantly state that ‘although the overall number of character refusals is a small percentage of the total citizenship application caseload, sound and consistent administration of the good character requirement is necessary to: increase the likelihood that those approved for citizenship really are of good character; reduce the risk that persons of significant character concern are granted citizenship; and protect and enhance the fairness and integrity of the citizenship program’.[72]

In 2013–14, the Immigration Department approved 158,870 applications (82.6 per cent) for conferral of Australian citizenship. Significantly, less than one per cent of refusal decisions for conferral, descent and resumption applications were overturned at review by the AAT.[73]

One case that the Government apparently considers has been decided incorrectly is Al Hashimi and Minister for Immigration and Citizenship, in which the AAT found the applicant, a person convicted of people smuggling, to nonetheless be of good character.[74] Though the Explanatory Memorandum states that this decision (amongst others) was ‘outside community standards’, the two AAT Members who presided over this matter (including Deputy President Stanley Hotop)[75] found that having regard to the whole of the evidence before them, the applicant (a recognised refugee from Iran) had for a period of almost seven years been consistently law abiding, in stable gainful employment, in a stable family situation with an extensive and very supportive social network and regarded as of good standing and repute in the community. On this last point, it is relevant to note that the AAT found that the applicant was ‘unequivocally held in high regard by those reputable and distinguished Australians who gave character evidence on his behalf’ including Fred Chaney AO who stated that he had known the applicant since 2002 and ‘could not vouch more highly’ for the applicant’s character. In his written reference, Mr Chaney further noted that ‘his wife and children are all now Australian citizens and it would be entirely appropriate for him to join them in that status. Indeed it is an anomaly that he, as head of the family unit, is excluded from the citizenship the rest of the family enjoys and values’.[76]

Identity

The other reason this amendment is being introduced is because ‘there is the potential for some decisions made by the AAT on identity grounds to pose a risk to the integrity of the citizenship programme’.[77] The identity requirement for applications for citizenship by conferral is contained in subsection 24(3) of the Citizenship Act. The ACIs provide policy guidance in relation to the interpretation of, and the exercise of powers under, the Citizenship Act and Regulations. In relation to the identity requirement, the Instructions simply state:

Section 24(3) requires that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship if they are not satisfied of the person’s identity.[78]

Since 1 July 2007, when the Citizenship Act came into operation, there appears to have only been two cases before the AAT that have been determined on the basis of an applicant failing to meet the identity requirement in the Citizenship Act.[79] Significantly, both of these matters were affirmed, that is the AAT agreed with the decision of the Minister’s delegate to refuse the application for citizenship. Accordingly, it is extremely difficult to see how there is the potential for AAT decisions on identity grounds to pose a risk to the integrity of the citizenship program.

Use and disclosure of personal information

Items 74 and 77 respectively insert proposed sections 53A into the Citizenship Act and proposed section 488C into the Migration Act. Together, these sections enable the Minister, Secretary or an APS employee in the Immigration Department to use and disclose personal information obtained under the Migration Act or Migration Regulations 1994 for the purposes of the Citizenship Act or the Citizenship Regulations 2007 and vice versa—that is, to use personal information obtained under the Citizenship Act or Citizenship Regulations for the purposes of the Migration Act or the Migration Regulations.

The reason this amendment is being made is explained in the Statement of Compatibility with Human Rights as follows:

The amendment is aimed at the legitimate objective of facilitating the efficient use of information held by the department as a whole to ensure that it can carry out its functions under the two Acts that it administers with accuracy and effectiveness.

There are often instances in which the personal information provided by a person to the Department under the Migration Act or the Migration Regulations is required to make a decision in relation to the person under the Act or the Citizenship Regulations. Such information is often essential in verifying the information the person provided in relation to their application for Australian citizenship. Allowing a delegate to have regard to this information would enhance the Department’s ability to detect fraud in individual cases, improve client service and improve decision‑making on citizenship applications overall.[80]

The Australian Privacy Commissioner made a submission to the Senate Legal and Constitutional Affairs Committee in which he queried whether the broad range of information sharing proposed is necessary, proportional and the least privacy invasive option. He also noted that it was unclear from the Statement of Compatibility with Human Rights whether the amendments were compatible with Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and noted that consideration should be given to explaining the compatibility more clearly. He also observed that ideally, these issues would be considered in developing the legislative proposal, and form part of a Privacy Impact Assessment (PIA). As he was not consulted in the development of the Bill he was not aware whether such an assessment had been carried out. The development of a PIA is a step the Privacy Commissioner would ‘encourage agencies to consider taking where a change is proposed to their information handling practices. Whether a PIA is appropriate depends in part on the extent to which personal information will be collected, used or disclosed’.[81]

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