Bills Digest no. 23, 2017–18
PDF version [1.1MB]
Claire Petrie
Law and Bills Digest Section
Henry Sherrell
Social Policy Section
1 September 2017
Contents
The Bills Digest at a glance
Purpose of the Bill
History of the Bill
Background
Committee consideration
Legal and Constitutional Affairs
Legislation Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Automatic acquisition of citizenship
by birth—new exceptions
Quick guide
Box 1: impact of proposed changes to
the 10 year rule: three examples
Conferral—new requirements
Quick guide
General residence requirements
Exemptions to general residence
requirement—expanded Ministerial discretions
Special residence
requirement—expanded Ministerial discretions
English language
Integration
Citizenship test
Minors
Citizenship by conferral
Good character requirement
Australian Values Statement
Pledge of allegiance
Who must make the pledge
Delayed making of pledge
Form of pledge
Retrospective application
Refusals and cancellations of
approval
Expanded grounds to refuse
citizenship approval
New mandatory cancellation of
approval
Revocation of citizenship
Revocation for fraud or
misrepresentation without conviction
Revocation of citizenship by
descent—new Ministerial discretion
Merits review of decisions
Excluding decisions from AAT review
Ministerial power to overrule AAT
decisions
Disclosure of personal information
Other provisions
Clarification of status of abandoned
children
Adoption
Power to make legislative instruments
Concluding comments
Date introduced: 15 June 2017
House: House of Representatives
Portfolio: Immigration and Border Protection
Commencement: On Proclamation or six months after Royal Assent, whichever occurs first.
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 Federal Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at September 2017.
The Bills Digest at a glance
The Bill implements the Government’s
announcement on 20 April 2017 regarding a series of changes to citizenship
policy with the intention to ‘strengthen citizenship’.
In 2015, the Government announced Concetta
Fierravanti-Wells and Phillip Ruddock would undertake community consultations
on citizenship policy. The Government has relied heavily on this consultation
process to inform the Bill. Following this process, the Government announced on
20 April 2017 an intention to change a number of citizenship policies,
including a longer permanent residence requirement and a heightened English
language requirement.
From the post-war ‘populate or perish’ period until the
mid-2000s, Australian governments often revised citizenship policy in an
attempt to expand the eligibility of migrants for citizenship. For example,
over time, the period of permanent residence required before applying for
citizenship fell from five years to two, and the English language requirement
was reduced from adequate to basic.
The introduction of the citizenship test and lengthening
of the residence period in 2007 marked a change in approach. The changes
proposed by this Bill represent the continuation of a more restrictive approach
to Australian citizenship policy, with the introduction of additional eligibility
requirements and new Ministerial powers. The Prime Minister said he believes
the changes will be ‘empowering for applicants’ and that ‘Australian
citizenship is the foundation of our democracy’.[1]
The Bill introduces a formal English language test, with
the requirement aspiring citizens must show competent English. In addition,
four years of permanent residency will be required for aspiring citizens as
well as an ability to demonstrate their integration into Australian society.
However, what constitutes a successful demonstration of integration is unknown
as the proposed delegated legislation regulating this new provision does not exist
at this time. These changes, and a number of other significant policy changes,
are profiled in this Bills Digest.
The effects of the Bill are difficult to forecast. The
combined measures will likely reduce the number of future citizens compared to
a continuation of the status quo. A number of organisations have argued instead
of promoting social cohesion, the measures will undermine how aspiring citizens
integrate into Australian society.
In addition, there is a clear shift away from setting out
detailed eligibility criteria in the Act, with greater discretion given to the
Minister to determine the details of eligibility through legislative instrument.
This is combined with an increase in the number of ‘public interest’
discretions for the Minister, with the Bill creating new Ministerial powers to
exclude personal decisions from merits review and override decisions of the
Administrative Appeals Tribunal. The Minister is also given expanded powers to
cancel citizenship approvals and to revoke citizenship. The expansion of
discretion and greater use of delegated legislation promotes a degree of
uncertainty and potential arbitrariness regarding the application and
revocation of citizenship.
The changes to citizenship eligibility will apply to all
applications lodged from 20 April 2017. A number of organisations noted this in
their submissions, raising concerns about uncertainty for current applicants
and suggesting it may undermine Parliamentary processes.
Purpose of
the Bill
The purpose of the Australian Citizenship Legislation
Amendment (Strengthening the Requirements for Australian Citizenship and Other
Measures) Bill 2017 (the Bill) is to amend the Australian
Citizenship Act 2007 (the Act) to change a number of requirements
relating to eligibility for citizenship.
The Bill contains a number of new amendments regarding
citizenship policy. For applicants seeking Australian citizenship by conferral,
the Bill proposes:
- an
increase in the English language requirement from basic to competent
- the
extension of the general residency requirement to four years of permanent
residence
- the
requirement to demonstrate integration into the Australian community
- the
replacement of the pledge of commitment with a proposed pledge of allegiance
and
- changes
to the eligibility provisions of the citizenship test.
The Government could use existing provisions to implement
the last proposal. However, provisions in this Bill make this ability more
explicit.
The Bill also contains amendments previously proposed by
the Government in the Australian
Citizenship and Other Legislation Amendment Bill 2014 which lapsed in 2016:
- the extension of good character requirements to minors
- the expansion of exceptions to automatic acquisition of
citizenship by birth
- the expansion of mandatory circumstances in which citizenship
approval must be refused, to capture modern forms of sentencing including home
detention and residential programs
- an extension of the citizenship pledge requirement to most
applicants for citizenship by descent, intercountry adoption and for resumption
of citizenship (in addition to the existing requirement for citizenship by
conferral)
- the creation of additional mandatory and discretionary
Ministerial powers to cancel a citizenship approval prior to the pledge being
made
- the expansion of the Minister’s power to revoke citizenship for
fraud or misrepresentation, without the need for conviction
- the introduction of a broad Ministerial power to revoke
citizenship granted on the basis of descent, in place of an existing operation
of law provision
- the creation of Ministerial power to set aside certain Administrative
Appeals Tribunal (AAT) decisions and
- the exclusion of personal decisions of the Minister from review
by the AAT, when certified to have been made in the public interest.
There are a number of other minor definitional and consequential
amendments.
History of
the Bill
The Australian Citizenship and Other Legislation Amendment
Bill 2014 (2014 Bill) was introduced in late 2014. It passed through the House
of Representatives but was not debated in the Senate, and lapsed at the
prorogation of the 44th Parliament.[2]
As noted above, the 2014 Bill contained a number of provisions which are
substantially replicated in the present Bill.
The 2014 Bill was referred to the Senate Legal and
Constitutional Affairs Legislation Committee.[3]
The majority report of the Committee recommended that the Bill be passed,
subject to recommendations for clarity surrounding the proposed power to revoke
citizenship for fraud or misrepresentation without conviction.[4]
Separate dissenting reports were issued by ALP Senators and the Australian
Greens which both recommended that the Bill not be passed.[5]
Background
The preamble to the Australian Citizenship Act 2007
says ‘Australian citizenship represents full and formal membership of the community
of the Commonwealth of Australia, and Australian citizenship is a common bond,
involving reciprocal rights and obligations, uniting all Australians, while
respecting their diversity’.[6]
Australian citizenship confers a set of rights and obligations.
An Australian citizen does not require a visa to live in Australia, is entitled
and expected to vote in public elections, and can access a number of government
support programs unavailable to permanent residents such as various Higher
Education Loan Programs. Prime Minister Turnbull has suggested the foundation
of our multicultural society is Australian citizenship.[7]
Australian citizenship in a global context
Australia has a relatively accessible citizenship
framework compared with most Organisation for Economic Co‑operation and
Development (OECD) countries. The current residence period is generally shorter
and the language requirement is weaker than comparable countries like Canada[8]
and the United Kingdom.[9]
As identified in a previous Parliamentary Library publication, Australia’s
citizenship framework was changed many times from the end of World War II until
the early 2000s to ‘make citizenship easier to acquire, reflecting the goal of
successive governments to encourage settlers to take out citizenship more
quickly’.[10]
However, the direction of recent legislation has been to restrict rather than
expand access to Australian citizenship.
Beginning in 2007, when the residency requirement was
increased from two to four years and with the introduction of a formal
citizenship test, and continuing with this Bill, the past ten-year period
represents a trend towards restriction.[11]
Some of this restriction is closely linked to national security concerns. This
Bill has a broader focus relating to cultural and economic priorities.
The trend towards more restrictive citizenship policy
frameworks is not unique to Australia. A number of other OECD countries have
recently introduced or modified their tests and other requirements.[12]
Some point towards increased immigration flows through the 1990s and 2000s as
the impetus for this policy shift.[13]
This may also be relevant in Australia, given higher rates of net migration in
recent years. Various residency pathways of aspiring citizens today look very
different compared to a generation ago as about half of all permanent residents
are already in Australia on some type of temporary visa when their permanent residency
visa is granted.[14]
In addition, the origin countries of Australia’s settler migrants today have
shifted markedly in that same time period, with China and India now the two
leading countries compared to more traditional origin countries like the United
Kingdom and South Africa in years past.[15]
These changing migration trends mean the adjustment to policy proposed in this
Bill will have an effect on more aspiring citizens than it may have had in the
past, particularly in relation to extending the permanent residence period and
increasing English proficiency.
Policy development and consultation
This Bill has been introduced following a period of heightened
activity for citizenship legislation.
In conjunction with the introduction of the Australian
Citizenship Amendment (Allegiance to Australia) Bill 2015 to Parliament,
the Commonwealth Government conducted national consultation to ‘improve
understanding of the privileges and responsibilities of Australian
citizenship’.[16]
This consultation was led by the then Parliamentary Secretary for Social
Services, Concetta Fierravanti-Wells, and Phillip Ruddock, in his role as Special
Envoy for Citizenship and Community Engagement. The then Prime Minister, Tony
Abbott, said at the time:
... we want to have a national conversation about the
responsibilities, as well as the rights, of citizenship. About the duties as
well as the privileges of citizenship. As you all know, every new citizen takes
the citizenship pledge, increasingly at citizenship ceremonies all of us are
invited to take the citizenship pledge. We pledge our commitment to Australia
and its people, whose democratic beliefs we share, whose rights and liberties
we expect [sic], whose laws we will uphold and obey—and these words must mean
something. That's the point. The words of the citizenship pledge must mean
something.[17]
The consultation report, Australian Citizenship: your
right, your responsibility, made 15 recommendations centred on the role of
citizenship in promoting social integration, a distinct departure from the
citizenship debates in the 44th Parliament focusing on security.[18]
On 20 April 2017, Prime Minister Turnbull and Immigration
Minister Dutton announced their intention to introduce legislative changes to
citizenship informed by the consultation report’s recommendations, as well as a
number of amendments from the lapsed 2014 Bill.[19]
In a press conference, Peter Dutton outlined the Government’s rationale when he
said:
You decide in your
application, when you want to become an Australian citizen, that you will adopt
Australian values. And we are very clear about saying that today in the
announcement, because we are making no apologies for the fact that we do want
people to be able to integrate. We want people to be able to send their kids to
school, to take advantage of a great education system. We want people to be
able to work if they're of working age and to make sure that if they have a
capacity to work, they're contributing and not leading a life on welfare. [20]
A discussion paper, Strengthening the Test for
Australian Citizenship, was released with submissions due by 1 June
2017.[21]
Submissions made to this discussion paper have not been released publicly by
the Department of Immigration and Border Protection (DIBP).[22]
This Bill is a combination of more recent policy proposals
and a number of proposals from the lapsed 2014 Bill. This Bill will shape the
ability of current and future permanent migrants to become Australian citizens,
as well as embedding a significant increase in the scope of ministerial
discretion within the Australian Citizenship Act. A number of key
provisions introducing new requirements for the conferral of citizenship make
it more difficult to become an Australian citizen. These include a longer
residence period, a higher English proficiency requirement and an integration
assessment.
Citizenship and national security
The nature of the Bill is somewhat contested in relation
to whether and how national security is relevant to the proposed legislative
changes. In his second reading speech, Minister Dutton said, ‘[T]his Bill
reinforces the integrity of our citizenship programme. This will help maintain
strong public support for migration and the value of Australian citizenship in
what is an increasingly challenging national security and complex global
security situation’.[23]
In its submission to the Senate Inquiry, the Department of
Immigration and Border Protection writes under the sub-heading ‘Addressing the
national security concern–Australia’s response’, ‘the measures outlined in the
Bill build on these earlier developments and reinforce the integrity of
Australia’s citizenship programme’.[24]
By earlier developments, the Department is referring to the Australian
Citizenship Amendment (Allegiance to Australia) Bill 2015. The Department
references the January 2015 joint Commonwealth–New South Wales review of the Martin
Place siege, which recommended ‘Immigration should better assess the possible
risks posed by individuals at the pre‑visa, post-visa and pre-citizenship
stages’.[25]
The Shadow Minister for Citizenship and Multicultural
Australia, Tony Burke, refuted this characterisation in a media conference on
20 June 2017:
It only applies to people who
are already permanent residents. By definition everybody who was affected by
this is a person who Australia has already said should live here and live here
permanently and if there is a national security problem for those people then
why on earth does the government have them already living here permanently? [26]
Peter Mares, an author about contemporary Australian
migration policy, wrote about the proposed Bill:
Making Australia safe is a worthy aim, but seems to have
little connection to the issue of citizenship. If recent migrants pose a
security threat to Australia, they do so regardless of whether or not they
obtain the status of citizen, since they are already resident in Australia.
Delaying or denying migrants a pathway to citizenship cannot appreciably
improve national security or in any way reduce terrorism. It may, however, have
the opposite effect if it leads some migrants to feel that they are excluded,
marginalised and unwanted. [27]
Absent from much of the debate and commentary around the
changes proposed by this Bill is an explicit principled articulation of the
distinction, and rationale for the distinction, between permanent residency and
citizenship. Professor Kim Rubenstein from the Australian National University
said ‘the proposed changes ... place too much weight on migration policy over
broader questions about membership of a democratic nation-state’.[28]
Historical approaches to citizenship policy
Different rationales have been put forward in previous
eras for changes in citizenship policy. For example, the then Minister for
Immigration and Ethnic Affairs in the Fraser Government, Ian Macphee, said in
1982:
From the current review there has emerged general agreement
on the following five matters: Firstly, it is desirable for the entire
community to be aware of the benefits and the obligations attaching to
citizenship; secondly, the meaning and value of citizenship should be enhanced;
thirdly, there should be no discrimination within eligibility criteria for
citizenship; fourthly, the provisions of the Citizenship Act should be as
objective as possible and subjectivity should be minimised; and, fifthly, the
administrative simplicity of the current Act should be preserved.
...
The amendments to the Act which I am suggesting for
consideration are directed broadly at four goals: firstly, to remove all discriminatory
aspects which give preferential treatment on the basis of national origin, sex
or marital status; secondly, to eliminate anomalies and reduce subjectivity in
criteria for citizenship; thirdly, to clarify and simplify administrative
requirements in the application of the Act and remove provisions which are no
longer relevant; and, fourthly, to provide for independent review of decisions
to deny persons citizenship.[29]
Committee
consideration
Legal and
Constitutional Affairs Legislation Committee
The Bill has been referred to the Senate Legal and
Constitutional Affairs Legislation Committee for inquiry and report by 4
September 2017. Details of the inquiry are at: Australian
Citizenship Legislation Amendment) Strengthening the Requirements for
Australian Citizenship and Other Measures) Bill 2017.
Senate
Standing Committee for the Scrutiny of Bills
The Scrutiny of Bills Committee reported on the Bill in
its Scrutiny Digest 7 of 2017.[30]
It identified concerns with a number of the Bill’s proposed measures, in
particular:
- the conferral of broad discretionary powers on the Minister,
including in relation to determining whether a person has integrated into the
Australian community and revoking a person’s citizenship
- the broad delegation of legislative power, including providing
the Minister with power to determine English language requirements via
legislative instrument
- restrictions on merits review through excluding personal
decisions of the Minister[31]
from AAT review and providing the Minister with the power to set aside AAT decisions
- restrictions on judicial review through the inclusion of a
‘no-duty-to-consider’ clause in relation to the Minister’s power to waive the
general residence requirement
- the exemption of the Australian Values Statement from
parliamentary disallowance
- the conferral of broad, general powers on the Minister to make
legislative instruments and
- the retrospective application of a number of the amendments.[32]
Concerns raised in regards to specific provisions are
discussed in further detail in the ‘key issues and provisions’ section below.
The Minister has responded to the concerns raised by the
Committee.[33]
In particular, he has stated that the Government considers it appropriate that
matters such as integration factors and English language requirements be set
out in legislative instruments, and that these instruments will be subject to
scrutiny and disallowance in Parliament.[34]
Policy
position of non-government parties/independents
The Australian Labor Party has signalled that it will
oppose the Bill. In a press conference on 20 June 2017, the Shadow Minister for
Citizenship and Multicultural Australia, Tony Burke, said ‘Labor caucus today
made a unanimous decision to oppose the Governments changes to Australian
citizenship’.[35]
The rationale stated was opposition to extending the period a person must be a
permanent resident prior to becoming a citizen, and the proficiency level of
the proposed English language test. Mr Burke also dismissed the argument the
Bill was aimed at responding to national security concerns.
The Greens have also signalled opposition to the Bill,
with their Immigration spokesperson, Nick McKim, describing the proposed
changes as ‘anti-immigration’ and ‘destabilising’.[36]
On 22 June 2017, NXT spokesperson for Immigration and
Citizenship, Stirling Griff, publicly raised concerns about the English
proficiency requirement and new powers outlined in the Bill for the Minister.[37]
This followed reports of Nick Xenophon describing parts of the Bill as
‘unnecessarily harsh and unreasonable’.[38]
Prior to the introduction of the Bill in the House of
Representatives, Pauline Hanson tweeted on 20 April 2017, ‘Good to see the PM
is finally acting on the suggestions I made to him about the citizenship test.
#auspol’ and included a link to a January 2017 clip advocating for a ‘tougher
citizenship test’.[39]
The One Nation website outlines the party’s immigration policy, which is
comparable to a number of key provisions of this Bill:
Australian “citizenship” is a valued privilege. One Nation
would support a 5 year wait for new migrants to become Australian citizens. If
they commit a criminal offence that carries with it a jail term of 1 year, they
would automatically be denied citizenship and deported. To qualify they would
have to have an understanding of the Australian Constitution and laws, pass a
test in English and swear allegiance to the Commonwealth of Australia under our
flag.[40]
The Liberal Democratic Party’s policy on citizenship notes
and is consistent with a number of key provisions:
Applicants for citizenship should have resided in Australia
for at least 10 years, passed a basic citizenship test (in English, of standard
high school quality), provide evidence of likely continued employment (or means
to support themselves), links to the Australian community and no criminal
record.[41]
On 13 June 2017, Jacqui Lambie called the proposed
citizenship changes a ‘good start’, however, this was before the Bill was
tabled in the House of Representatives.[42]
It is not currently known whether Senators Hinch, Gichuhi or
Bernardi support the intention or specific proposals within the Bill.
Position of
major interest groups
In addition to submissions provided to the Senate Legal
and Constitutional Affairs Legislation Committee’s inquiry, a number of
submissions to the Australian Government’s discussion paper are available,
including from major interest groups. These submissions provide commentary on
the policy proposed within the discussion paper, much of which mirrors the
Bill. A detailed discussion of these policy positions can be found in this
digest under the heading ‘key issues and provisions’.
The Australian Multicultural Council, a
ministerially-appointed body providing advice to the Australian Government on
multicultural affairs recommended the ‘Government demonstrates how the changes
will advance faster integration of migrants into Australian society. At this
point in time, Council feels this is not being sufficiently demonstrated’.[43]
The Law Council of Australia called the expansion of
ministerial power to overrule citizenship decisions made by the Administrative
Appeals Tribunal ‘a disproportionate response that weakens crucial checks and
balances’.[44]
The Australian Human Rights Commission (AHRC) said ‘the
amendments would increase individual Ministerial discretion and reduce
independent merits review of administrative decision-making’, arguing this is ‘contrary
to a primary focus of administrative law over the last 40 years’. The
Commission also said the amendments ‘would make it more difficult’ for a number
of groups to become Australian citizens and recommended the Bill not be passed
in its current form.[45]
The Andrew and Renata Kaldor Centre for International
Refugee Law and the Gilbert + Tobin Centre of Public Law at the University of
New South Wales (the Kaldor Centre) raised ‘serious concerns’ about the Bill
and called for the ‘government to justify why these changes put forward are
necessary’. The Kaldor Centre’s submission to the Senate Inquiry noted the Bill
‘makes citizenship more difficult to obtain for some people’ and ‘significantly
expands the discretionary powers of the Minister for Immigration and Border
Protection and reduces their accountability’.[46]
Anthony Bergin, a senior analyst at the Australian
Strategic Policy Institute and the Australian National University’s National
Security College, wrote that ‘the government’s citizenship announcements are a
positive step in a longer-term strategy to promote national values’.[47]
Mr Bergin links the citizenship changes with a more ‘muscular values-based
approach to countering extremism’.[48]
The Refugee Council of Australia (RCOA) said the Bill
would ‘disproportionately affect refugees, and it would fundamentally alter the
nature of Australian citizenship. The proposals in the Bill would effectively
convert citizenship policy from being a tool of inclusion to a tool of
exclusion.’[49]
In relation to elements of the Bill previously proposed in
2014, a number of organisations provided detailed comment at the time. This is
discussed under the heading ‘key issues and provisions’, however, it is
important to note the positions of interest groups may have changed over the
last three years.
Financial
implications
The Explanatory Memorandum notes that ‘the financial
impact of these amendments is low’.[50]
Statement of Compatibility with Human Rights
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.[51]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights reported
on the Bill on 15 August 2017.[52]
It raised concerns with a number of the proposed measures, in particular:
- the
changes to English language proficiency requirements
- the requirement for an applicant for citizenship by conferral to
have ‘integrated into the Australian community’
- the
power of the Minister to revoke citizenship due to fraud or misrepresentation
without a conviction
- the
extension of the good character requirement to include applicants under 18
- changes
to provisions relating to the citizenship of a child found abandoned in
Australia
- the proposed exemptions to automatic acquisition of citizenship
for children born in Australia and ordinarily resident in the country for their
first ten years of life
- the removal of merits review for personal decisions of the
Minister made in the public interest and the power for the Minister to set
aside decisions of the AAT and
- the
extension of the bars to citizenship approval to people who are subject to a
court order.
Further comments of the Committee are discussed in the key
issues and provisions section below.
Key issues
and provisions
Automatic acquisition of citizenship by birth—new
exceptions
Quick
guide
The Bill makes a number of changes to automatic
acquisition of Australian citizenship by inserting four additional exceptions
to automatic acquisition of citizenship and removing automatic citizenship
for a child born in Australia who has been ordinarily resident for ten years
from birth:
- whose
parent was entitled to diplomatic or consular privileges or immunities
- who
was unlawfully in Australia at any stage
- who
was outside Australia at any stage and did not hold a visa allowing them to
enter or remain in Australia
- who was born to a parent who did not hold a substantive visa at
the time of the child’s birth and was unlawful at any point in Australia
before the birth of that child.
The latter two amendments will apply retrospectively to
children who have not yet turned ten. |
What are the changes?
The Government is proposing new exceptions for children acquiring
automatic citizenship by birth after ten years in Australia. These exceptions
will remove automatic citizenship for children who were ever unlawful, left
Australia without the right to return, or were in Australia for a temporary
purpose only. The government is also proposing an exception based on the status
of a child’s parents.
Section 12 of the Act currently provides for the automatic
acquisition of citizenship where a person is born in Australia and:
- has a parent who is an Australian citizen, or permanent resident,
at the time of the person’s birth or
- is ordinarily resident in Australia throughout the ten-year
period following the person’s birth (known as the ‘10 year rule’).[53]
The only existing exception is for a person born to a
parent who is an enemy alien, where the place of birth is under enemy
occupation.[54]
Item 20 adds four further exceptions to the rule of automatic
acquisition by birth, by specifying that the ten-year period of ordinary
residence does not apply where, at any time during this period:
- a parent of the person was entitled to diplomatic or consular
privileges or immunities (proposed subsection 12(3))
- the person was present in Australia as an unlawful non-citizen (proposed
subsection 12(4))
- the person was outside Australia and at that time did not hold a
visa permitting them to travel to, enter and remain in Australia (proposed
subsection 12(5)) with an exception for children of New Zealand citizens or
- a parent of the person did not hold a substantive visa at the
time of the person’s birth; had entered Australia on one or more occasions
before the person’s birth; and at any time from the date of the parent’s last
entry to Australia up until the date of birth, was present in Australia as an
unlawful non-citizen (proposed subsection 12(7)).
The exceptions inserted by proposed subsections 12(3)
(in relation to parents entitled to privileges and immunities) and 12(7)
(in relation to parent’s status) are to apply to births that occur on or after
commencement of the Bill.[55]
The exceptions inserted by proposed subsections 12(4)
(in relation to unlawful non-citizens) and 12(5) (in relation to a
period spent outside Australia without a visa) apply to children who turn ten
years of age on or after the item’s commencement.[56]
This means they will cover children who have already been born, if the ten-year
period has not yet concluded.
Rationale
The Government’s rationale concerns compliance with
migration law. The Explanatory Memorandum outlines how the changes are seeking
to prevent ‘anchor’ children from accessing future permanent residence by
‘encouraging the use of lawful pathways to migration and citizenship’.[57]
The Statement of Compatibility with Human Rights for this Bill states:
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.
The ten-year rule has the practical 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. These parents would then expect that their
children would obtain Australian citizenship and provide an anchor for family
migration and/or justification for a ministerial intervention request under the
Migration Act.[58]
The Government’s rationale seeks to overturn part of the
original intention of paragraph 12(1)(b). In their submission, Estrin Saul Lawyers
notes that during the Parliamentary debate on the Australian Citizenship
Amendment Bill 1986 that introduced this provision, Senator Coates specifically
referenced the 10 year rule, saying:
... or if the child's parents
are visitors or illegally in Australia but that child has been here for 10
years, it would acquire Australian citizenship automatically. So if it has
grown up for that period in Australia it will be treated as an Australian.[59]
In 2014, DIBP provided evidence that an average of 400
children per year apply for citizenship under the ‘10 year rule’.[60]
The Department did not put forward what proportion of these applicants would
have failed under the new provisions. These amendments were previously proposed
in the Australian Citizenship and Other Legislation Amendment Bill 2014. This
Bill lapsed at the prorogation of the 44th Parliament.[61]
Possible implications
The transformation of Australia’s migration framework from
one based on permanent residency to one where temporary migration plays a much
larger role has ongoing implications for the 10 year rule. For example in the
2016 Census, there were 86,887 people who were born in Australia and not
Australian citizens. This was an increase of 119 per cent compared to the 2006
Census. Seventy per cent of these people in 2016 were aged under 10 years old.[62]
As children of temporary migrants are not entitled to
citizenship, and with a growing population of temporary migrants in Australia,
it is likely these provisions in the Act will be used more frequently in the
future than they are today. This can be seen in the growing number of
Australian-born non-citizens. A larger, growing population of long-term
temporary migrants will likely also lead to a larger population of non-citizen
Australian born children who at some stage were present in Australia as an
unlawful non-citizen, either intentionally or unintentionally. The proposed
amendments will prevent these children from obtaining citizenship by automatic
acquisition. Unlike other parts of the Bill, for example under the proposed
general residence requirements (see proposed subsection 22(4AA) of the
Act at item 63 of the Bill), there is no ministerial discretion
to allow citizenship in cases of administrative error, for example where a
bridging visa was not granted.
In addition to unlawful non-citizen children of temporary
migrants, as a result of proposed subsection 12(7), children born
to irregular maritime arrivals in Australia will become ineligible for
citizenship via the ten year rule if they were born when their parents were
waiting for a decision on their asylum application and were at any time
considered an ‘unlawful non-citizen’. This will apply even if a protection visa
is successfully granted. This amendment will make an applicant’s citizenship
eligibility contingent on the status of their parent(s) at the time of the
applicant’s birth, rather than at the time of the citizenship application.
Box 1: impact of
proposed changes to the 10 year rule: three examples
A child is born after the commencement of the Bill to a
parent who holds a temporary protection visa at the time of the birth. She
remains in Australia for 10 years as an ordinary resident without her parent
becoming a permanent resident. This child is entitled to automatic
acquisition of Australian citizenship under the proposed amendments, as she
satisfies paragraph 12(1)(b) and is not subject to any of the proposed
exceptions.
A child is born after the commencement of the Bill to a
parent who holds a bridging visa E, having arrived in Australia as an
unlawful non-citizen. At the time of her birth, her parent was waiting for a
decision on a temporary protection visa application. After the birth, the
application is successful. The child remains in Australia for 10 years as an
ordinary resident without her parent becoming a permanent resident. This
child is not entitled to automatic acquisition of Australian citizenship due
to proposed paragraph 12(7)(a), as her parent did not hold a
substantive visa at the time of her birth.
A child was born in 2009 to a parent who held a Temporary
Skilled (Work) (subclass 457) visa. Due to an administrative error, the child
becomes an unlawful non-citizen in Australia for a period of seven days
during his parent’s visa renewal process. The error is corrected and the visa
application is successful. The child remains in Australia for 10 years as an
ordinary resident on a series of subclass 457 visas (or equivalent). This
child is not entitled to automatic acquisition of Australian citizenship due
to proposed subsection 12(4), as he was an unlawful non-citizen at any
time during the 10-year period.
|
These changes were included in the 2014 Bill in the same
form.
A number of submissions to the Senate Inquiry to the 2014
Bill expressed concern about the adverse effect these amendments may have on
children who had spent their formative years in Australia. Professor Kim
Rubenstein, from the Australian National University College of Law, wrote:
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... 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.[63]
The Australian Human Rights Commission submitted the 2014
Bill would ‘discriminate’ based ‘solely on the initial immigration status of
their parents’.[64]
Associate Professor Alexander Reilly (Adelaide University, Public Law and
Policy Research Unit) said of the 2014 Bill ‘[children’s] immigration status,
or that of their parents, is irrelevant to the depth of their connection to
Australia’.[65]
In relation to the current Bill, Professor Rubenstein told Fairfax media, ‘It's
a very, very spurious type of motivation in my view. It smacks of developing
citizenship policy purely as migration policy’.[66]
UNICEF Australia argues ‘the proposed changes to the ‘ten-year
rule’ will disproportionately affect the children of asylum seekers who arrived
in Australia irregularly. The proposed amendments will deprive citizenship
solely on the basis of parent’s immigration status which is potentially
inconsistent with Article 2 of the CRC [Convention of the Rights of the Child]’.[67]
Estrin Saul Lawyers contend ‘the intended purpose of the
rule has always been to ensure that all ten-year-old Australian-born
children are afforded the full and unqualified protection of Australia’s
citizenship laws—irrespective of their or their parents’ immigration status’.[68]
They argue ‘unlawful Australian-born children needed the protection of the “ten
year rule” more than any others, not just because of their unique vulnerability
as unlawful children, but because the Australian Government has long recognised
that a ten-year-old child should not be penalised for the immigration choices
of their parents’.[69]
The Australian Human Rights Commission raised the prospect
of retrospective effects for proposed subsection 12(4), as it
‘applies to children who have already been born in Australia, but who have not
yet turned 10 years old, if they were unlawful non-citizens for any period of
time, however brief’.[70]
The Scrutiny of Bills Committee has also raised concerns about the
retrospectivity:
The practical effect of these subitems is that a child who
may be expecting to acquire citizenship on the basis of the existing provisions
will not be able to do so, even in circumstances where they are due to acquire
citizenship very soon after the commencement of the provisions.[71]
Conferral—new requirements
Quick
guide
The Bill makes significant changes to the general
eligibility requirements for citizenship by conferral. It:
- amends the general residence requirement to extend the time a
person must have been present in Australia as a permanent resident from 12
months to four years
- changes the English language requirement to require a person
have ‘competent’ English, as defined by the Minister under legislative
instrument
- inserts a requirement that an applicant has integrated into the
Australian community
-
inserts a requirement that an applicant has adequate knowledge
of Australia’s values.
The Bill also expands the Minister’s discretion in
relation to the circumstances in which the general residence or special
residence requirements may be waived.
|
General residence requirements
What are the changes?
The Government is proposing to extend the time an aspiring
citizen must hold a permanent visa from 12 months to four years. Any time spent
by aspiring citizens on temporary visas, for example work or study related,
will no longer satisfy the general residence requirement. For aspiring citizens
who arrive in Australia on a permanent visa, this will have no effect.
To be eligible for citizenship by conferral, a person must
generally satisfy the general residence requirements, or if special
circumstances apply, satisfy the special residence or defence service
requirement at the time of making the application.[72]
The general residence requirement is set out under section 22, and currently requires
a person to have been:
-
lawfully present in Australia for four years immediately prior to
the application date and
- a permanent resident for 12 months immediately preceding the
application date.[73]
The Bill amends this requirement so that a person must be
present in Australia as a permanent resident for four years (referred to as
their residency period) immediately prior to the application
date.[74]
The person must not have been present as an unlawful non-citizen at any time
during this period.[75]
Item 57 inserts a new, simplified approach to
dealing with overseas absences, which provides that where a person’s absence
from Australia during the residency period totals no more than 365 days, and
the person was a permanent resident during each period of absence, the person
will be taken to have been present in Australia as a permanent resident during
these absences.[76]
The Bill removes existing provisions which impose additional requirements for a
person to have been absent for no more than 90 days in the twelve months
immediately prior to the application date.[77]
Item 61 repeals an existing exemption to the
general residence requirement which applies where a person was born in
Australia or has previously been an Australian citizen.[78]
Rationale
In his second reading speech, Minister Dutton said
‘strengthening the residency requirement is intended to support integration and
facilitate a more thorough evaluation of a person’s commitment to Australia,
our values and adherence to our laws. It also brings Australia more in line
with the general requirements of other nations’.[79]
Lengthening the residency requirement was a prominent
theme in the 2015 consultation process. The rationale for extending the
residency requirement in the consultation report was ‘that the person will use
this time to become acquainted and comfortable with Australian society and its
values and to appreciate the commitment they must make to become an Australian
citizen’.[80]
How becoming ‘acquainted and comfortable with Australian society’ differs for
prospective citizens depending on their residency status (a temporary or
permanent residency) was not explained in the consultation report.
The Explanatory Memorandum states ‘extending the general
residency period strengthens the integrity of the citizenship programme by
providing more time to examine a person’s character as a permanent resident in
Australia’.[81]
DIBP, under the subheading ‘the case for reform’, states
that ‘[m]any temporary residents choose to become permanent residents to access
Australian citizenship, however, temporary visa holders do not arrive in
Australia with the stated intent to settle in Australia permanently. Those visa
holders are temporary residents. There is no automatic pathway from a temporary
visa to Australian citizenship’.[82]
Possible implications
As previously mentioned, the period of permanent residence
required prior to making an application for citizenship has changed over time.
Historically, it has generally been the case that the residence requirement for
citizenship reflected the view ‘that the applicant should have spent sufficient
time in Australia to develop an understanding of its institutions,
parliamentary and legal systems, language, culture and traditions so that he or
she can demonstrate a commitment to, and an association with, the nation’.[83]
Shifting the residency period from four years as a lawful
resident to four years of permanent residency will affect migrants who arrive
in Australia on temporary visas and seek to apply for Australian citizenship
after becoming a permanent resident. The Productivity Commission’s (PC) 2016
report, Australia’s Migrant Intake, found ‘around 100,000 people made
the transition from a temporary to a permanent visa’ in the 2013–14 financial
year. The most common pathway is moving from a 457 visa to an
employer-sponsored permanent visa.[84]
From 1991–2014, the average duration from this temporary visa to the permanent
visa was 2.7 years. Looking at all multiple temporary visa pathways to
permanent residency, the PC found an average duration of 6.4 years spent on
temporary visas before being granted a permanent visa.[85]
Under the proposed amendments, any time spent on a temporary visa will not be
considered in the residency period.
Tony Burke referenced the change to the residence
requirement as a reason Labor opposes the Bill. He said:
At the moment you already have to wait four years before
you're able to take on Australian citizenship. The four year wait is already
there but many people start on temporary visas, sometimes on a series of
temporary visas it can take much more than four years and the requirement is
that at least one of those years has to be a year of permanent residence. At
the end of that time Australia has had a good chance to have a look at the
contribution that somebody is already making. How can it be good for Australia
to be further delaying whether or not someone takes allegiance to this country?[86]
A number of stakeholders have expressed concern with the
change to the general residence requirement.
Peter Mares argues the change in the residence period
would affect a large number of people, as ‘last year around 50,000 skilled
migrants made the transition from a 457 visa to permanent residence’.[87]
He provided the example of a person on a 457 visa:
In the past, an employer could sponsor a 457 visa-holder for
permanent residency after two years, enabling the migrant to potentially gain
citizenship after a total of four years living and working in Australia. The
government’s recent changes to temporary skilled migration, however, increase
the threshold for acquiring permanent residency via employer sponsorship to
three years – and so, in future, a temporary migrant will generally have to
live and work in Australia for at least seven years before applying to become a
citizen.[88]
The Australian Human Rights Commission argues ‘the
differential treatment based on visa class does not advance the Government’s
stated objective of integrating aspiring citizens into the Australian
community’.[89]
In its submission to the Senate Inquiry, the Federation of
Ethnic Communities’ Councils Australia (FECCA) said the change will ‘have a
detrimental effect on community harmony, social cohesion and weaken the
capacity of migrants to be employed and integrated into Australia society’.[90]
FECCA noted the potential for this change to impact the ability of the
Commonwealth Government to recruit from diverse backgrounds.
A large number of individuals submitted to the Senate Inquiry
arguing how the proposed changes would negatively affect their personal attempt
to gain Australian citizenship. Many claimed this was unfair and retrospective.[91]
A number of individual submissions proposed the concept of
a transition period for people who already held a permanent visa.[92]
A transition period occurred in 2007, when the Australian Government extended
the residence period from two years to four years. The Australian
Citizenship (Transitionals and Consequentials) Act 2007 allowed permanent
residents at the time of commencement to apply for citizenship by conferral
under previous residence criteria.[93]
Box 2: impact of proposed changes to residence period:
three examples
A person is granted a permanent residency visa and arrives
in Australia on 15 April 2013. He met the general residency requirement on 15
April 2017. He did not submit an application for citizenship prior to 20
April 2017. He will still be entitled to citizenship by conferral, as he
meets the requirements under the amended section 22.
A person is granted a permanent residency visa on 15 April
2016. She previously held an international student visa from February 2013.
This person met the general residence requirement on 15 April 2017 and had
she submitted an application prior to 20 April 2017, she would have met the
general residence requirement. However, she did not submit an application.
She is not entitled to citizenship by conferral due to proposed paragraph
22(1)(a), as she has not held a permanent residency visa for four years.
A person is granted a permanent residency visa on 30 April
2016, after having lived in Australia for three years. He did not meet the
general residence requirement at any stage before 20 April 2017 and was
planning to submit an application for citizenship on 1 May 2017, after
meeting the general residency requirement. He is not entitled to citizenship
by conferral due to proposed paragraph 22(1)(a), as he has not held
permanent residency visa for four years.
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Exemptions
to general residence requirement—expanded Ministerial discretions
The Act presently provides the Minister with discretion to
disregard periods in which a person did not fulfil particular aspects of the
general residence requirements in the case of an administrative error;[94]
in certain circumstances in which a person is confined in a prison or
psychiatric institution;[95]
where the Minister is satisfied that the person will otherwise suffer
significant hardship or disadvantage;[96]
in the case of a spouse or de facto partner (or surviving spouse or de facto
partner) of an Australian citizen;[97]
or where a person is in an interdependent relationship with an Australian
citizen.[98]
With one exception the Bill preserves these grounds of
Ministerial discretion. However, it also expands the scope of this discretion
in three ways. Firstly, item 62 inserts proposed subsections 22(3)
and (4), which give the Minister the power to make a legislative instrument
determining circumstances in which a person is to be treated as not present in
Australia as an unlawful non-citizen for the purposes of the general residence
requirement.
Secondly, the Bill provides the Minister with discretion to
exempt certain classes of New Zealand citizens from the new residence
requirements under section 22. Item 67 inserts proposed subsections
22(11) and (12) which preserve the existing general residence requirements
under section 22 for New Zealand citizens who fall within a class determined by
the Minister by legislative instrument. The effect of this would be to allow
certain New Zealand citizens to qualify for citizenship by meeting the current
requirement of one year of permanent residency (and four years of total
residence), even if they apply after the Bill’s proposed changes have taken
effect. The Explanatory Memorandum provides:
... this arrangement for New Zealand citizens is a reflection
of the agreement made by the Prime Ministers of Australia and New Zealand in
2016 to enable New Zealanders living in Australia to progress to permanent
residence and, should they meet the requirements, citizenship.
The new visa pathway that resulted from this agreement, the
New Zealand stream of the Subclass 189 Skilled–Independent visa, commences on 1
July 2017 and is open to New Zealand citizens who have shown a commitment and
continuous contribution to Australia. The instrument made under new subsection
22(12) will specify one or more classes of New Zealand citizens who hold this
visa as people to whom the old rules apply.[99]
Thirdly, item 68 inserts proposed section 22AA
which confers a broad discretion on the Minister to make a written
determination waiving the general residence requirement completely in relation
to a person, if satisfied that either:
- an administrative error on or on behalf of the Commonwealth
caused the person to believe themselves to be an Australian citizen, and
contributed to the person not being able to satisfy the general residence
requirement or
- it is in the public interest for the Minister to do so.
This is a personal, non-compellable and non-delegable
power of the Minister and the determination is not a legislative
instrument—this means that it cannot be disallowed by Parliament.[100]
Proposed subsection 22AA(5) provides that if a person becomes an
Australian citizen in circumstances where the Minister exercised this
discretionary power, the Minister must table in each House of Parliament a
statement of this, providing reasons for exercising the power. The statement
must not include the applicant’s name.[101]
Removal of discretionary exemption—person in an interdependent
relationship
The Bill removes the discretionary power which currently
exists in relation to a permanent visa holder who is outside Australia, and in
an interdependent relationship with an Australian citizen.[102]
Although the Explanatory Memorandum states that the substance of this provision
is ‘replicated elsewhere’, there is no express reference to interdependent
relationships elsewhere in the Bill, and no reason is provided for the repeal.[103]
The Minister’s public interest discretion under proposed subsection 22AA may,
in some cases, be sufficiently broad to capture such a situation. However, an
applicant would need to satisfy the Minister that it is in the public interest
to waive the general residence requirement.
Amendment of discretionary exemption—spouse or de facto
partner
Item 67 makes a small change to the grounds on
which Ministerial discretion may be exercised in relation to a spouse, de facto
partner or surviving spouse or de facto partner of an Australian citizen.
Presently, the discretion may be exercised to effectively waive the residence
requirements for such a person who was a permanent resident but not present in
Australia during the relevant period, but whom the Minister is satisfied had a
close and continuing association with Australia throughout the period.[104]
Proposed paragraph 22(9)(e) provides an additional requirement that
during the person’s four-year residency period, they must have been present in
Australia for at least 365 days.
Special
residence requirement—expanded Ministerial discretions
A person may satisfy the less onerous special
residence requirement in place of the general requirement under section
22, in circumstances where:
- the person needs to be an Australian citizen to engage in
activities of benefit to Australia, and is supported by an organisation
specified under legislative instrument (currently, any Commonwealth department
or agency, the Australian Olympic Committee, Australian Paralympic Committee,
Tennis Australia and Cricket Australia)[105]
or
- the person is engaged in work of kind specified by legislative
instrument, which requires them to regularly travel outside of Australia.[106]
The Bill does not significantly alter the existing
provisions in relation to the special residence requirement. However, it
expands the Minister’s discretionary power to treat a certain period as one in
which a person’s presence in Australia was not unlawful.[107]
Items 79 and 80 insert proposed subsections 22C(2A) and 22C(4),
respectively, which provide that the Minister may make a legislative instrument
determining the circumstances in which this discretion may be exercised.
English
language
What are the changes?
The Government is proposing the introduction of a formal
English language test, together with an increased proficiency threshold, for
aspiring citizens. This is a major change to the conferral of citizenship as
currently there is no specific language test. Instead, applicants are required
to show basic understanding of English by passing the citizenship test.
To meet the general eligibility requirements for
citizenship by conferral, an applicant must currently possess a basic knowledge
of the English language.[108]
Subsection 21(2A) provides that this requirement will be taken to be satisfied
by successful completion of the citizenship test. Proving a basic knowledge of
English does not require a formal language proficiency assessment, such as a
language test or exam.
Item 41 amends this requirement to provide that a
person must have competent English. The Minister may make a legislative
instrument determining both the circumstances in which a person has competent
English, and the means by which this may be established.[109]
This reverses an earlier easing of English language proficiency in 1984, when
the requirement was reduced from adequate to basic.[110]
While competent English is not defined in
the Bill, Minister Dutton has made several references to what he
considers competent English. In his press conference announcing the changes on
20 April 2017, he said:
There's a significant change in relation to the English
language requirement which at the moment is basic. We increase that to IELTS
Level 6 equivalent, so that is at a competent English language proficiency
level and I think there would be wide support for that as well.[111]
‘IELTS Level 6’ is a reference to a well-known language
testing system called the ‘International English Language Testing System’.
Level 6 is in reference to a specific band score, defined by the IELTS
organisation as:
The test taker has an effective command of the language
despite some inaccuracies, inappropriate usage and misunderstandings. They can
use and understand fairly complex language, particularly in familiar
situations. [112]
The increase from basic to competent English is not made
along a consistent scale. As above, basic English is satisfied by successfully
completing the citizenship test. Competent English will be satisfied by
completing a formal English language test to a specified level. These are
distinct measures of language proficiency. Minister Dutton indicated in his
second reading speech that each of listening, speaking, reading and writing
will be tested to determine competent English.[113]
Currently, there is no written, listening or spoken component to determine
basic English.
Rationale
In his press conference to announce the proposed
citizenship changes, the Prime Minister commented specifically on the changes
to English knowledge:
It is the single best thing any person coming
to this country can do is learn English and that's why Peter's department put
such a big effort into it. Well, that is going to be a requirement. You know
what that will do? That will ensure that many people who had not learned
English or had not been encouraged to learn English will do so. And so you know
what we're doing? We're doing them a big favour. [114]
Minister Dutton extended this argument in his second
reading speech:
English language is essential for economic
participation and social cohesion. The Productivity Commission in 2016
highlighted the importance of English language proficiency for integration and
settlement outcomes. There is also strong public support to ensure that
aspiring citizens are fully able to participate in Australian life, by speaking
English, our national language.[115]
The consultation process led by Senator
Fierravanti-Wells and former Immigration Minister Ruddock found, ‘a
strong theme of the consultation was the importance of English language to
being a citizen and full integration in Australian society. There was support
for raising the minimum standard of English required to sit the Citizenship
Test from ‘basic’ to ‘adequate’’.[116] In its submission to the Senate Inquiry, DIBP outlines a
deterioration in self-reported English proficiency from the 2016 Census as part
of the ‘case for reform’. DIBP also notes:
The current citizenship test was designed primarily to assess
whether an applicant has an adequate knowledge of Australia and the responsibilities
of Australian citizenship. By passing the test it is accepted that the
applicant has at least a basic knowledge of English. However, it is not a
formal assessment of the individual’s level of English ability, and it only
tests reading comprehension—it does not test listening, speaking or writing
skills.[117]
Possible implications
There is general consensus among political parties that English
language is important for aspiring citizens. The then Prime Minister, Julia
Gillard said in 2012, ‘It is the meeting of those rights with the
responsibilities that come from making your way in a new nation, including
responsibilities to find work, to learn English , to uphold our rule
of law, to be a full participant in our democracy and to recognise women as
equals in our society’.[118]
Therefore, the contentious part of the Bill is the
proposed proficiency required. The Opposition has argued as a consequence of
this requirement, ‘[a] very large number of people who are born here will never
reach the level of English in this test’.[119]
This concern was also raised by a number of researchers and stakeholders.
The ministerially-appointed Australian Multicultural
Council wrote:
While recognising that the ability to communicate in English
is clearly important to achieving integration, the Council is concerned that
the language test being considered by Government will adopt a standard that is
too high and above that needed to achieve the aim of integration. [120]
This sentiment is supported by a number of other submissions.
The University of Adelaide Public Law and Policy Research Unit (University of
Adelaide) writes:
We support the introduction of an English language test, but
only if the test is used as a means to encourage and support migrants to learn
English. The level of English language proficiency expected should be
commensurate with the opportunities applicants have had to achieve that level
of proficiency.[121]
The University of Melbourne’s Language Testing Research
Centre stated IELTS is unsuitable for ‘establishing readiness for citizenship’
while the proposed level required is ‘unreasonably high’. The Centre’s
submission states the proposed level ‘may be beyond the reach of many
Australian born citizens with low literacy backgrounds’. The Centre notes the
limited research on native speaker performance on language tests shows
‘significant variability ... with educational level being a predictor of success’.[122]
The Monash University’s School of Languages, Literatures,
Cultures and Linguistics submitted that it was ‘deeply concerned’ at the
proposed change to English proficiency. The School argues that there is a lack
of clear evidence that language proficiency tests ‘build social cohesion in the
ways the government seem to be hoping for’.[123]
In its submission, the Australian Human Rights Commission
argues ‘many Australia-born citizens would not possess a written or spoken
command of English equivalent to [the IELTS Level 6] standard’.[124]
Box 3: is IELTS 6 ‘university
English’?
IELTS Level 6 has been referred to as ‘university level’
English by the Opposition. This reflects the fact that some Australian
universities require international students to obtain an IELTS Level 6 in
order to gain entrance to study.[125]
Some universities require a higher level, such as Sydney University, which
requires an average of 6.5 with no part below 6.0.[126]
It is common for specific courses within universities to require higher
levels, such as Law and Journalism degrees.
Minister Dutton has said ‘university English’ is a ‘red
herring’ as there are two IELTS streams, an academic test and a general test.
His media release on 21 June 2017 stated ‘contrary to Labor’s false claims,
the IELTS Academic test is not required for migration or citizenship purposes’.[127]
As competent English is not defined in the Bill and will be prescribed by a
legislative instrument authored by the Minister, this remains subject to
further regulation.
The academic and general tests are the same test for
listening and speaking with differing assessments for reading and writing. Discussing
the difference between the general and academic tests, Associate Professor Catherine
Elder, the president of the International Language Testing Association, described the two standards as ‘more or less the
same’.[128]
Professor McNamara, a linguistics expert at Melbourne University, said ‘the
tasks are different but the standard required is the same’.[129]
|
It is difficult to forecast how many aspiring Australian
citizens will be ineligible due to the proposed English language requirements. The
IELTS organisation provides a breakdown of average scores according to most
common first language across their global testing locations.[130]
The table below shows the mean (average) IELTS score for people from a number of
different language backgrounds.[131]
Language
|
Listening
|
Reading
|
Writing
|
Speaking
|
Overall
|
English
|
7.1
|
6.7
|
6.7
|
7.4
|
7.0
|
Chinese*
|
6.2
|
6.1
|
5.7
|
5.8
|
6.0
|
Italian
|
6.1
|
6.0
|
5.7
|
6.3
|
6.1
|
Arabic
|
5.8
|
5.3
|
5.4
|
6.1
|
5.7
|
Vietnamese
|
6.1
|
5.9
|
5.8
|
5.9
|
6.0
|
*The IELTS website only provides information for ‘Chinese’ and
does not break this down into other languages, such as Mandarin and Cantonese.
These scores do not show Australian test results and it is
important to note that approximately 80 per cent of IELTS tests relate to
education admission. However, the results imply a requirement of Level 6 and will
likely have a considerable effect on aspiring citizens from non-English
speaking countries. In particular, the scores for the written component demonstrate
this could be a barrier to citizenship conferral.
The Government’s key argument is a higher English
requirement will incentivise prospective citizens to improve their English. The
Government has not provided evidence to support this. However, increasing the English
requirement signals the importance the government places on English language
acquisition by new migrants.
There are already a number of strong incentives for
prospective citizens to learn English outside of citizenship requirements. In
seminal research on the Australian labour market in relation to language proficiency
and earnings, Professor Barry Chiswick and Professor Paul Miller show the
economic incentives to improve English language include higher wages and
employment outcomes.[132]
There may also be factors that preclude some migrants from
ever reaching competent English. Writing in 2006, Chiswick and Miller found ‘it
has been shown in numerous studies that proficiency is enhanced by a higher
level of education and by migration while young’.[133]
Analysing longitudinal migration data from the late 1990s, they find education
is a particularly strong variable, where ‘each additional year of education is
the equivalent in impact on English skills to 10 fewer years of age at
migration’.[134]
Given these findings, a higher language proficiency
requirement will affect aspiring citizens differently. Migrants to Australia
via the family and humanitarian visa categories will be disproportionally
affected as they generally have lower existing English proficiency and fewer
years of higher education, on average, compared to migrants arriving via the
skilled categories.[135]
Previous legislative debates about citizenship have
addressed English language proficiency. In 1982, then Immigration and Ethnic
Affairs Minister, Ian Macphee, articulated why adequate proficiency was
required:
The requirement that an applicant possess an adequate
knowledge of English is a controversial issue but should not be so. The
Government believes that a basic proficiency in English is necessary to fulfil
the rights and responsibilities of citizenship. Included in these rights and
responsibilities are jury service, the right to stand for elective office and
the right to vote. It is surely incontestable that these rights can only be
exercised and the responsibilities discharged when an effective knowledge of
English is possessed.
It is evident that there are strong views in the community
supporting the retention of English language as a requirement of citizenship.
English is Australia's national language and therefore the essential language
of communication in our multicultural society. It is the language of our
parliamentary and judicial institutions. To eliminate the English language as a
requirement would result in significant numbers of non-English speaking
citizens who would not be able to understand the proceedings of parliament or
consider the diverse arguments which often occur regarding national and
political issues presented via the English language media. Were this otherwise
it could foster the growth of a 'second class citizenship' whose members
remained isolated from the general Australian community. If it is accepted that
the English language must be maintained as a requirement for citizenship, the
issue then becomes the level of proficiency required.[136]
Mr Macphee thus articulated how on this view, the language
requirement was inextricably bound up in a sense of belonging. Notwithstanding
the importance he placed on language proficiency, Mr Macphee did recognise
‘that beyond a certain age many persons find it difficult if not impossible to
learn a new language’.[137]
At the time there was an exemption from the language requirement to persons 60
years of age and over.[138]
Mr Macphee thought the age of exemption should be lowered to 55 years and in
cases of hardship, for persons who had ‘resided in Australia for 20 years or
more and who, through time, have thus acquired a reasonable understanding of
Australia and its institutions despite their lack of English, a further option
would be to lower the minimum age for exemption to 50 years’.[139]
Two years later, under the Hawke Government, the language
proficiency requirement was changed from adequate to basic.[140]
In his second reading speech introducing the citizenship
test in 2007, the then Minister for Immigration and Citizenship, Kevin Andrews,
said in relation to sitting the citizenship test, ‘the government recognises
that there will be some people who do not and may never have the literacy
skills required’.[141]
Box 3: international comparisons of language
requirements to gain citizenship
A number of countries require aspiring citizens to pass a
language assessment. These tests differ in their method and proficiency level
required.
Canada’s citizenship language test requires applicants to
pass a listening and speaking test, excluding reading and writing. The
equivalent IELTS score is approximately 4.[142]
The United Kingdom[143] and Germany[144] use the same
methodology, the Common European Framework for Reference, and require the
same score of level B1. This is roughly equivalent to an IELTS score between
4 and 5. The Netherlands[145]
and Spain[146]
also use this methodology, with both countries requiring an A2, equivalent to
an IELTS score of approximately 3.
In New Zealand, applicants must be able to
‘hold a basic conversation in English’, assessed by a New Zealand Immigration
official.[147]
In the United States, applicants must read
and write a sentence correctly. The ability to speak is determined by an
officer of the U.S. Citizenship and Immigration Services.[148]
Professor Tim McNamara of Melbourne
University told the ABC, ‘It is very likely that Australia has the most
stringent language testing for citizenship anywhere in the world’.[149]
Monash University’s School of Languages,
Literature, Cultures and Linguistics submits the proposed level of IELTS 6 is
‘very much out of step with other language tests for citizenship
internationally’.[150]
|
Integration
What are the changes?
The Government is introducing an integration test, where
aspiring citizens ‘will be required to demonstrate their integration into the
Australian community in accordance with Australian values’.[151]
There is little additional information about what the integration test will consist
of, or how it will be assessed.
Item 43 inserts a new requirement that applicants
for citizenship by conferral have ‘integrated into the Australian community’.[152]
This is not defined within the Bill. The Minister may make a legislative
instrument determining the matters to which the Minister may or must have
regard in determining whether a person has integrated into the Australian
community.[153]
The Explanatory Memorandum provides a number of examples
as to what may constitute integration:
... the Minister may determine that regard may be had to, for
example, a person’s employment status, study being undertaken by the person,
the person’s involvement with community groups, the school participation of the
person’s children, or, adversely, the person’s criminality or conduct that is
inconsistent with the Australian values to which they committed throughout
their application process.[154]
This provision is a significant extension of ministerial
discretion with regard to citizenship eligibility. As the examples outlined in
the Explanatory Memorandum above demonstrate, the Minister may select any
number of activities or tests applicants would be required to meet relating to
any aspect of economic, social or civic life.
Rationale
The Prime Minister noted in his press conference
announcing the changes:
... we need to ensure that our citizenship test enables
applicants to demonstrate how they have integrated into and engaged with our
Australian community, so that they're part of the community. They've lived here
as a permanent resident for four years, they speak English, share our values, be
integrated. Those are critically important elements.[155]
In its submission to the Senate Inquiry, DIBP stated:
While Australia compares well against other countries on
aggregated key integration measures (in particular, labour market
participation, educational levels and proficiency in the host language) it does
not currently test individual immigrants for integration.[156]
No other information or evidence was provided under ‘the
case for reform’ in relation to the proposed integration measures.
Possible implications
It is difficult to describe possible implications when the
content and requirements of the integration test are currently unknown.
The Australian Multicultural Council supports ‘the new
requirement that an applicant must demonstrate their integration into the
community, provided sensible guidelines and supports are developed to ensure
the new requirements are not onerous to the point of becoming a deterrent’.[157]
The University of Adelaide contended the Minister should
not be afforded ‘broad discretion to determine Australian values and to
determine if a person has integrated into the Australian community’.[158]
The Jesuit Refugee Service argued this was a ‘subjective assessment of values
and integration’ with the potential to exclude people from Australian
citizenship.[159]
The Australian Human Rights Commission expressed
in-principle support for the Government’s interest in ‘strengthening
citizenship and promoting a more cohesive society. Australia’s multicultural
society is only successful because immigrants and their descendants, over time,
become full members of Australian society’.[160]
However, the Commission notes ‘it would be anomalous to hold naturalised
citizens to a standard that is significantly more stringent than the standard
expected of Australian born citizens (who are not tested on their civic
knowledge or participation in society)’.[161]
The Commission also expressed concern about
the lack of certainty on the integration proposals given they are retrospective
and apply to any aspiring citizen from 20 April 2017.[162]
The Parliamentary Joint Committee on Human
Rights queried whether the measure is compatible with the right to equality and
non-discrimination, and sought the advice of the Minister as to whether the
basis on which a person will be considered to have integrated into the
Australian community could be made clear and defined in the legislation.[163] It argued:
... without safeguards, it is possible that the
minister could exercise this power in such a way as to have a disproportionate
effect on people on the basis of disability, nationality, race or sex. There is
nothing on the face of the legislation which appears to limit his or her
discretion.[164]
Citizenship
test
What are the changes?
The Government is proposing a number of changes to the
citizenship test itself and increasing the emphasis on ‘Australian values’
within the test. An applicant for citizenship by conferral must currently
demonstrate ‘an adequate knowledge of Australia and of the responsibilities and
privileges of Australian citizenship’.[165]
Item 42 extends this requirement to include adequate
knowledge of ‘Australia’s values’. This will be taken to be satisfied through
the successful completion of the citizenship test.[166]
As with the integration requirement, the Bill does not define or provide
examples of what is meant by Australian values.
The content of, and rules surrounding the citizenship test
are contained in a written determination made by the Minister under section 23A
of the Act. This is not a legislative instrument, and therefore cannot be
disallowed by Parliament.[167]
The current determination was made on 24 March 2012 and sets out the
eligibility criteria and rules for three forms of the test—a Standard Test;
Assisted Test for those with low literacy skills or a physical or cognitive
impairment; and a Course-Based Test for those who have failed the standard or
assisted test (or combination of both) three or more times or have been
assessed after one or two test failures as suitable for participation in the
Course-Based test.[168]
There is currently no limit to the number of times a person may sit the
Standard and Assisted Tests, provided that they have not commenced a
Course-Based Test.[169]
A person may only undertake the Course-Based Test once for each application for
citizenship, except in exceptional circumstances.[170]
The Course-Based Test is being removed. DIBP states:
The Government will remove the existing course-based test for
applicants who have failed the standard test or assisted test three or more
times. The purpose of the course-based test was to assist applicants with below
‘basic’ English, to understand the citizenship test. With the introduction of a
new English language test, the course based test is no longer necessary.[171]
Item 82 inserts proposed subsection
23A(3A) to provide that eligibility criteria for the citizenship test may
relate (but is not limited) to the fact that a person has previously failed the
test, not complied with the rules of conduct relating to the test, or was found
to have cheated during the test. This amendment provides some clarity regarding
the types of eligibility issues which may be dealt with under a section 23A
determination, but it is not legally necessary—existing subsection 23A(3)
provides the Minister with a broad discretion to set out the eligibility
criteria for the test, except where it is inconsistent with the Act. The
Minister already has the power, for example, to place limits on the number of
times a person may take the citizenship test, or exclude a person from taking
the test where they are found to have cheated on a previous attempt.
As the Minister for Immigration already has the power to
change the questions in the citizenship test, as well as the eligibility
criteria to sit the test, these provisions are not creating new executive
powers.
Rationale
When announcing his intention to change citizenship policy, the Prime
Minister said:
Why should the test simply be a checklist of civic questions,
all very important, about the parliament and how many senators there are from
each state. These are all important things to know, no doubt but fundamentally
the values which bind us together are those ones of respect, the rule of law,
commitment to freedom, democracy, these are the key elements in our Australian
identity and our citizenship should reflect this. [172]
The citizenship consultation report focused on the
‘credibility and validity’ of the test:
The credibility and validity of the Citizenship Test was
raised during the course of the consultations. There is support for maintaining
a test, but most viewed that a limit should be placed on how many times an
individual can sit the test before their application is refused. Many suggested
that a person should have to resubmit an application for citizenship following
a series of failed attempts at the Test.[173]
DIBP considers ‘the Government’s position is that the
current citizenship test is out-of-date and only tests applicants’ basic
understanding of Australian Government and society’.[174]
Possible implications
As the proposed subsections relate to future delegated
legislation, the implications are unclear.
It is unclear how the nature of the proposed changes will
differ from the status quo in practical effect. For example, content in the
practice questions for the citizenship test already contains multiple
references to concepts such as democracy and individual freedoms, as well as
more functional aspects of Australia’s parliamentary system of government:
Which of these statements about government in Australia is
correct?
- The government does not allow some religions
- Government in Australia is secular
- Religious laws are passed by parliament
Which of these is an example of equality in Australia?
- Everyone follows the same religion
- Men and women have the same rights
- Everyone belongs to the same political party.[175]
These types of questions and content for the citizenship
test, as well as what the Prime Minister referenced in his media conference,
fall into the category of civic or institutional citizenship. Discourse on
Australian citizenship has typically reflected civic institutionalism, for
example with the Australian Citizenship Council’s report, ‘Australian
Citizenship for a New Century’, which called for an ‘Australian Compact’ in
2001 built on seven civic values.[176]
Existing test preparatory materials also demonstrate this perspective. In this
sense, the content of the Australian citizenship test reflects similar content
in other Western liberal democracies. For example, Ines Michalowski found
almost all countries correspond to the institutional perspective as opposed to approaches
based on cultural or national identity.[177]
On citizenship eligibility, the Minister and the
Explanatory Memorandum indicate a new policy will be introduced, preventing
applicants from sitting the citizenship test an unlimited number of times. As
above, this change could be introduced without the proposed changes to subsection
23A(3A). The Explanatory Memorandum argues the ability to sit the test an
unlimited number of times, ‘reduce(s) the integrity of the testing arrangements’.[178]
In their media release on 20 April 2017, the Prime Minister and the Minister
for Immigration state reforms will include, ‘limiting the number of times an
applicant can fail the citizenship test to three’.[179]
The Brotherhood of St Laurence and Whittlesea Community Connections raised
concerns in relation to the proposed policy of limiting access to the
citizenship test after multiple failures. They note ‘this is inconsistent with
other licensing and testing across a variety of fields nationally’ and
‘represent[s] a potentially punitive approach that risks increasing barriers to
integration and participation in mainstream communities’.[180]
The ‘Australian Citizenship Test Snapshot Report’ for 2014–15
shows the average number of tests per client was 1.1 for skilled migrants, 1.4
for family migrants and 2.4 for humanitarian migrants.[181]
Associated Professor Alexander Reilly has said ‘the three strikes provision
will have a disproportionate effect on refugees applying for citizenship’.[182]
The Australian Human Rights Commission argued ‘merely
failing the test due to factors such as low English literacy or schooling does
not threaten the integrity of testing measures’.[183]
Minors
Quick guide
The Bill makes two key changes to citizenship eligibility
for those aged under 18. Firstly, it amends the requirements for citizenship
by conferral by:
-
requiring applicants aged 16 and over and to have Competent
English and
-
making minor amendments to the residence requirement, which
gives the Minister scope to permit holders of a prescribed visa who are
outside Australia and have an Australian citizen parent, to satisfy the
requirement.
Secondly, the Bill removes age limits on the good
character requirement so that it applies to all applicants for non-automatic
citizenship acquisition, regardless of age.
|
Citizenship by conferral
Children applying for citizenship by conferral are
currently subject to different requirements than adults. Subsection 21(5) of
the Act provides a person is eligible to become a citizen if they are aged
under 18 at the time of making the application, and are a permanent resident
both at the time of application and the time of the Minister’s decision. There
are no existing requirements for applicants to demonstrate a particular level
of English or satisfy residency or character requirements.
Item 51 inserts proposed paragraphs 21(5)(b),
(c) and (d) which contain new requirements for minors. Proposed
paragraph 21(5)(b) provides that at the time of the application, and at the
time of the Minister’s decision, the person must either:
- be a permanent resident or
- hold a permanent visa of a kind determined in a legislative
instrument made under proposed subsection 3(2),[184]
have not entered Australia on the visa, and have a parent who is an Australian
citizen. The Explanatory Memorandum states that the visa intended to be
determined for the purposes of this provision will be the Adoption (subclass
102) visa.[185]
Proposed paragraph 21(5)(c) states that the
applicant must be of good character at the time of the Minister’s decision on
the application. Proposed paragraph 21(5)(d) requires an applicant aged
16 years or over at the time of the application to have competent English—the
same level required for adults applying for citizenship by conferral.
Neither the Minister nor the Explanatory Memorandum
provide a rationale for why applicants aged between 16 and 18 would now be
required to meet an English requirement, regardless of what the specific level
is. This proposal will require an applicant who is 16 or 17 to have competent
English, however, they will not be required to sit the citizenship test.
UNICEF Australia argues testing 16- and 17-year-olds for
their language proficiency ‘is not reasonable or necessary and will
disproportionately impact on children who have arrived in Australia as refugees
or humanitarian entrants’.[186]
Good character requirement
What are the changes?
Although all adult applicants for non-automatic citizenship
must satisfy the Minister that they are of good character, with an exception
only for stateless persons,[187]
there is no similar requirement for minors. The Bill changes this so the good
character requirement applies to applicants regardless of age.[188]
This measure was proposed in the 2014 Bill.
Rationale
In his second reading speech, Peter Dutton referenced
reducing the age for meeting the ‘good character’ requirement as an additional
measure to ‘improve the integrity of the citizenship programme’.[189]
DIBP expand on this argument in the Explanatory Memorandum:
The Department is aware of children aged under 18 with
serious character concerns. The amendment would not have a significant impact
on children overall, but will capture those young people who are of character
concern and that the Australia community reasonably expects should not be
extended the privilege of Australian citizenship at that time.[190]
Possible implications
When first proposed in 2014, these provisions attracted significant
concern. Professor Kim Rubenstein said ‘it is difficult to see how character
and the supposed interest of the State won’t take precedence in a way that
prejudices the best interests of the child’. She noted how this represented a ‘significant
departure from citizenship policy that broadly recognises a connection to a State
through a parent, regardless of the character of the child’.[191]
In relation to this Bill, UNICEF Australia argues ‘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’.[192]
The University of Adelaide’s Public Law and Policy
Research Unit notes ‘good character’ is not defined in the Act, ‘leaving the
Minister with a broad discretion in determining whether the criteria have been
met’.[193]
Given this, the authors propose limitations to ‘particularly serious crimes’
defined in legislation, only applicable to those aged 16 and over.
The Kaldor Centre argues the ‘proposed amendments are
likely to be ineffective in addressing the purported issue’.[194]
They note ‘it may be difficult, if not impossible, to accurately judge whether
a minor, particularly one who is younger, demonstrates [good] characteristics’.[195]
Australian
Values Statement
Quick Guide
The Bill introduces a requirement for all applicants to
sign an Australian Values Statement in order to make a valid citizenship
application. The content of the Statement and any requirements relating to it
will be determined by the Minister in a non-disallowable legislative
instrument.
|
What are the changes?
The government is proposing a formal Australia Values
Statement for aspiring citizens. This already exists for those applying for permanent
residency.
Section 46 of the Act sets out citizenship application
requirements, and specifies that an application must be on the relevant form
approved by the Minister, contain the information required by the form and be
accompanied by any fee or other information or documents prescribed by the Regulations.[196]
Although there is no express reference to the Australian Values Statement
(AVS), a statement of Australian values is currently part of the text of the
declaration on the citizenship application form which applicants are required
to sign.[197]
This is in very similar, but not identical, terms to the AVS which must be
signed by applicants for provisional, permanent and some temporary visas.[198]
The Explanatory Memorandum states that an application is deemed invalid when an
applicant does not sign the declaration.[199]
However, the Australian Citizenship Instructions suggest that this is not the
case, stating:
It is preferable that application forms are signed at time of
lodgement, however if a form has not been signed at time of lodgement the
application should not be made invalid. [200]
The changes proposed by the Bill remove this ambiguity by
providing that where an AVS is required to accompany a citizenship application,
failure to provide the AVS will result in the application being invalid. Item 119
inserts proposed subsection 46(5) and (6) which gives the Minister the
power to make a non-disallowable legislative instrument determining an AVS and
any requirements relating to it. Proposed subsection 46(1B)
provides clarification as to the circumstances in which a citizenship
application will be invalid. Relevantly, this includes where an AVS does
not accompany the application in accordance with a determination made under proposed
subsection 46(5).[201]
Rationale
DIBP submitted to the Senate Inquiry that ‘the Australian
values statement will be strengthened to include a reference to allegiance to
Australia and will require applicants to make an undertaking to integrate into
and contribute to the Australian community’.[202]
The Explanatory Memorandum notes that the policy intention
of the AVS is to underscore the importance of Australian citizenship and
require applicants to acknowledge their understanding of the rights and
privileges of citizenship and Australian values.[203]
It explains that the instrument determining the AVS will be exempt from
disallowance because it concerns matters under Executive control:
Australian citizenship is core Government policy and aligns
with national identity and as such matters going directly to the substance of
citizenship policy such as Australian Values should be under Executive control,
to provide certainty for applicants and to ensure that the Government’s
intended policy is upheld in its application.[204]
The existing Australian Values Statement which permanent
visa holders must sign currently references various individual and religious
freedoms, as well as the ‘commitment to the rule of law’ and ‘parliamentary
democracy’.[205]
Possible implications
In relation to ‘Australian values’, it is unclear how the
nature of the proposed changes will differ from the status quo in any practical
effect. For example, the Prime Minister mentioned the ‘rule of law’. The
current citizenship booklet includes the following section on the rule of law:
The rule of law: Australia’s laws are important for all
people living in Australia. Australians recognise the value of laws in
maintaining a peaceful and orderly society. All Australians have the right to
be protected by Australia’s laws. Everyone must obey Australia’s laws. If they
don’t obey the law, they may be arrested by the police and have to go to court.
All Australians are equal under the law and no person or group is above the
law. This is called the ‘rule of law’. People who hold positions of power in
the Australian community must obey Australia’s laws. This includes government,
community and religious leaders, as well as businesspeople and the police. [206]
Professor Kim Rubenstein has questioned the need for this
amendment, noting that the AVS already needs to be signed for a person to
become a permanent resident.[207]
She argues:
The main drivers of an assessment of a person’s capacity to
become a full member of the Australian community should be clear and
unambiguous, rather than an unclear and ambiguous concept of “Australian
values.”[208]
Particular concerns have been raised about the fact that
the instrument setting out the AVS (and associated requirements) is
non-disallowable. The Scrutiny of Bills Committee states that matters that go
directly to the substance of the Government’s citizenship policy are matters
appropriate for parliamentary oversight. It suggests that increased scrutiny
could be provided for by a range of means which nonetheless ensure certainty
for applicants, such as by including core ‘Australian values’ in the primary
legislation or requiring the approval of both Houses of Parliament before the
instrument comes into effect.[209]
The Kaldor Centre has also expressed concern about the
broad discretion given to the Minister to determine what constitutes Australian
values, particularly where this is not subject to parliamentary scrutiny.[210]
In particular, it raises concerns about the requirement to sign an AVS combined
with the proposed power to revoke citizenship for fraud or misrepresentation
without a conviction.[211]
This is discussed further under the ‘Revocation of citizenship’ heading below.
Pledge of
allegiance
Quick guide
The Bill extends the pledge requirement which currently
applies for citizenship by conferral, so that it will apply to all applicants
for non-automatic acquisition of citizenship unless the applicant:
- is
aged under 16 at the time of making the application or
- is
incapable of making the pledge due to a permanent or enduring physical or
mental incapacity.
The Bill replaces references to a ‘pledge of commitment’
with the term ‘pledge of allegiance’, and amends the wording of the pledge to
include reference to Australian values. It extends the period for which the
Minister can delay a person from taking the pledge (where the Minister is
considering cancelling approval) from 12 months to two years.
|
Who must
make the pledge
Currently, a person must make a ‘pledge of commitment’ if
they are applying for citizenship by conferral, unless an exception applies.[212]
Exceptions include where the person is under 16 years of age; has a permanent
or enduring physical or mental incapacity; or is granted citizenship on the
basis of being born to a former Australian citizen, having been born in Papua
to an Australian parent prior to Papuan Independence, or being stateless.[213]
Two forms of the pledge—an oath and a non-religious affirmation—are set out in
Schedule 1 of the Act.
The Bill expands the circumstances in which a person must
take a pledge before becoming an Australian citizen. The DIBP argues, ‘[t]he
citizenship reforms will contribute to achieving Australia’s national security
objectives by ensuring that all aspiring citizens make a commitment of
allegiance to Australia and demonstrate an understanding of and commitment to
Australian values’.[214]
Item 97 repeals sections 26 to 28, which set out the
existing requirements for the pledge of commitment in relation to citizenship
by conferral. Item 108 inserts proposed Subdivision D of Division
2 of Part 2 of the Act, which applies to all forms of non-automatic
citizenship acquisition under the Act. Proposed section 32AB provides
that all persons must make a ‘pledge of allegiance’ to become an Australian
citizen unless they:
- are aged under 16 at the time of the application or
-
have a permanent or enduring physical or mental incapacity that
means they are not capable of making the pledge.
Unless a person falls into one of these two exceptions,
they will be required to make the pledge. The change means that applicants for
citizenship by descent or on the basis of intercountry adoption, as well as
applicants for conferral who were previously exempt (such as those granted
citizenship under the statelessness provisions), will now be required to make
the pledge before becoming citizens.
Delayed
making of pledge
The Bill also extends the circumstances in which the
Minister can delay a person making the pledge. Currently, the Minister can
issue a written determination that a person cannot make a pledge until the end
of a specified period where the Minister is satisfied that the person’s visa
may be cancelled under the Migration Act 1958, or that the person has
been or may be charged with an offence under an Australian law.[215]
Proposed subsection 32AB(3) preserves these grounds for delaying
the pledge, and inserts an additional ground, providing that the Minister may
also prevent a person from making the pledge where the Minister is considering
cancelling approval of a citizenship application.[216]
Under the existing law, a person can be prevented from
making the pledge for a maximum period of 12 months.[217]
Proposed subsection 32AB(4) extends this to a maximum of two years.
In its submission to the Senate inquiry into the Bill, the
DIBP stated that increasing the time period ‘enables the Department more time
to investigate cases that are complex in nature and may take more than 12
months to investigate’.[218]
The Kaldor Centre has expressed concerns about extending the
length of time in this way. While acknowledging ‘there may be circumstances in
which a delay of 12 months is insufficient to allow investigations to be
completed’, it has also pointed to the potential for citizenship delays to
cause high levels of stress and anxiety for applicants, particularly for
refugees or humanitarian entrants.[219]
It has recommended that stronger justification be provided for the need to
increase the maximum length of delays, and that the Bill should:
... enumerate and limit the circumstances in which delay of
more than 12 months will be permitted under the Act, and require that any delay
imposed is proportionate to the circumstances that trigger it.[220]
Form of
pledge
The Bill replaces all references in the Act to the pledge of
commitment with the term ‘pledge of allegiance’. Item 133 amends
the wording of the pledge in Schedule 1 to require the person to:
- pledge their allegiance, rather than ‘loyalty’, to Australia and
its people and
- state that they share the Australian people’s ‘values’ alongside
the existing reference to shared ‘democratic beliefs’.
The Explanatory Memorandum describes the change in wording
as ‘symbolic’, and further provides:
The act of a person making the
pledge and using the word ‘allegiance’ does not in itself renounce a
person’s other citizenship. The Government recognises and accepts dual
citizenship is a means to support and build a strong and diverse multicultural
community by encouraging those who wish to become citizens, and who meet the
legal requirements for citizenship, to participate fully in the Australian
democratic processes and community.[221]
Retrospective
application
Application provisions in Part 2 of Schedule 1
provide that the key changes to citizenship eligibility proposed by the Bill
are to apply to all citizenship applications made on or after 20 April 2017,
the date of the Government’s announcement of the proposed reforms.[222]
This is in line with the statement in the Government’s Strengthening the
test for Australian citizenship paper, that the reforms would apply to
applications received on or after the date of the Government’s announcement.[223]
The following measures proposed by the Bill are to apply
in relation to applications made on or after 20 April 2017:
- amendments to the pledge of commitment, including proposed
changes to the content of the pledge and who is required to take it[224]
- amendments to the eligibility requirements for citizenship by
conferral under section 21, except in relation to the proposed residency and
good character requirements for persons under 18[225]
-
amendments to the residency requirements for citizenship by
conferral, and to the citizenship test provisions[226]
and
-
amendments to the application validity requirements under section
46.[227]
The DIBP submission to the Senate Inquiry states that this
retrospective application:
... was informed by experiences of previous Australian
governments announcing reforms to programmes in the portfolio including the
citizenship programme. When new policy is announced this can result in
significant increases in the number of applications, and consequential delays
in the processing of these applications.[228]
Legislation with retrospective application is not inherently
unlawful. Though there is a presumption underpinning statutory interpretation
that an Act will be assumed not to have retrospective operation, this is
displaced where there is a clear statement to the contrary.[229]
Nonetheless, stakeholders have expressed concerns about the uncertainty created
for citizenship applicants by the retrospective implementation of the changes. Legal
Aid NSW has submitted that retrospective laws are not consistent with the rule
of law principle that the law should be public, prospective and capable of
being known by those who are subject to it.[230]
It argues that retrospectivity should be ‘rare and accompanied by proper
justification’, and notes that the Explanatory Memorandum does not provide a
justification for the proposed retrospective application.[231]
The Refugee Council of Australia has raised similar concerns, stating: ‘it is
extremely troubling that the Australian Government thinks that, by merely
announcing a prospective Bill, it can thereby suspend the existing rights of
people in this country’.[232]
The Settlement Council of Australia has raised concerns
about the impact on applicants, noting:
It is highly irregular for applicants, eligible now under the
2007 Act, to be told that their applications will be on hold pending new
legislation. This is particularly the case given that many applicants who are
eligible at present could, if the changes proceed, become ineligible at some
point in the future.
This approach to such a crucial element in the settlement
process results in high levels of insecurity and confusion among migrants.[233]
The Scrutiny of Bills Committee has requested advice from
the Minister as to the number of people likely to be affected by the
retrospective application of these provisions.[234]
It is unclear how the Australian Government will proceed
with citizenship applications made after 20 April 2017 if the Bill is
unsuccessful in the Parliament. This may have an impact on citizenship trends.
In a research report from 2011, ‘Citizenship in Australia’, the authors from
the Department of Immigration and Citizenship found ‘[h]istorically,
citizenship application rates tend to drop following changes to the Citizenship
Act, possibly due to uncertainty about eligibility in migrant communities’.[235]
Refusals
and cancellations of approval
Quick guide
The Bill expands the circumstances in which the Minister
can refuse to approve an application for citizenship by:
- introducing new grounds for mandatory refusal to reflect modern
sentencing practices—these include where a person is in court-ordered home
detention or is participating in a court-ordered residential drug
rehabilitation scheme or other residential scheme or program and
- aligning the grounds on which the Minister may or must refuse
approval of an application for citizenship by descent, intercountry adoption
or for the resumption of citizenship, with those which apply for citizenship
by conferral.
The Bill also expands
circumstances in which an approval, once granted, can be cancelled:
- an approval must be cancelled where the applicant has
not yet taken the pledge and the Minister is satisfied they would not meet
the requirements for approval on either identity or national security grounds
- whereas currently the Minister can only cancel approvals of
applications for citizenship by conferral, the Bill inserts proposed
subsections 17A, 19DA and 30A to align the grounds for mandatory and
discretionary cancellation for all forms of non-automatic citizenship
acquisition.
As the Bill proposes extending the length of time for
which the Minister can delay a person making the pledge from 12 months to two
years, the period of time in which the Minister may cancel a citizenship
approval is similarly extended.
|
Expanded
grounds to refuse citizenship approval
What are the changes?
Section 24 lists circumstances in which the Minister may
or must refuse to approve an application for citizenship by conferral.
Subsection 24(6) compels the Minister to refuse approval when a person is in
prison in Australia, within two years following their release after serving a
‘serious prison sentence’ or within 10 years in the case of a serious repeat
offender, during any parole or licence period, or while a person has been
released subject to conditions, or when proceedings for an offence against
Australian law are pending.
The Bill expands the grounds for mandatory refusal under
this subsection. Amendments inserted by item 88 require the Minister to
refuse approval where a person is in court-ordered home detention (proposed
paragraph 24(6)(i)), or participating in a court-ordered residential drug
rehabilitation scheme or other residential scheme or program (proposed
paragraph 24(6)(j)), where this is in connection with an offence against an
Australian law.
The grounds for refusal at subsection 24(6) apply only in
relation to citizenship by conferral. In relation to other forms of
non-automatic citizenship acquisition, the only existing mandatory grounds for
refusal are where the person does not meet the eligibility criteria, the
Minister is not satisfied of the person’s identity, or where the person is
considered a risk to national security. The Bill extends the grounds for
refusal of applications for citizenship by descent, citizenship for adopted
persons and resumption of citizenship, to capture all the grounds covered by
subsection 24(6) (incorporating the additional grounds as proposed by item
88).[236]
Rationale
The Statement of Compatibility provides that the amendments
recognise modern sentencing practices, in particular the increasing judicial
use of home detention orders and rehabilitation programs in place of
imprisonment:
... it is legitimate for the government to specify that a
person cannot be approved for citizenship if they are currently before the
courts or under an obligation to the courts following proceedings for a
criminal offence ... Contemporary obligations to the court extend beyond
traditional sentencing to include residential programs for those with drug
addictions or the mentally ill. It is necessary for the citizenship programme
to take into account these updated sentencing practices in order that the
programme’s bar on approvals are reflective of current practice and
consistently applied to all applicants for Australian citizenship.[237]
Possible implications
The substance of the proposed amendments was replicated in
the 2014 Bill.[238]
At the time, stakeholders raised concerns that the changes could result in
approval being refused in circumstances where there had been no criminal
conviction. For example, the Migration Institute of Australia queried the inclusion
of good behaviour bonds, arguing that these bonds are commonly used instead of
fines and may be imposed without conviction, particularly for young offenders.[239]
Accordingly, it suggested that the amendments could capture people with issues
relating to mental or addictive illnesses, ‘rather than any criminal intent or
record’.[240]
The AHRC expressed concern about the impact of the changes
on persons with an intellectual disability or cognitive impairment, noting that
the proposed prohibitions may apply where a person is charged but not convicted
of any criminal offence.[241]
This may include where the court has determined the person was unable to plead
to any criminal charges, or where a person was found not guilty of an offence
by reason of mental impairment.[242]
UNHCR has queried the extension of these provisions to
applications for citizenship by descent, arguing that they go beyond the limits
provided for under the 1961 Convention on the Reduction of Statelessness
(Statelessness Convention), which allows states to impose a condition on
applicants for citizenship by descent that they have not been convicted of a
national security offence.[243]
UNHCR has recommended that an express exception for stateless persons be
inserted into section 17, similar to that which currently exists in relation to
citizenship by conferral under subsection 24(8).[244]
New mandatory cancellation of approval
What are the changes?
Section 25 currently provides the Minister with discretion
to cancel the approval of an application for citizenship by conferral if the
person has not yet become an Australian citizen, and the Minister is satisfied
the person is either not a permanent resident, not likely to reside in
Australia or maintain a close and continuing association with Australia or not
of good character. Approval may also be cancelled if a person fails to make a
pledge of commitment within 12 months after receiving notice of the approval,
where the reason for the failure is not one prescribed in the Regulations.[245]
The Bill amends section 25 to introduce grounds for
mandatory cancellation of a citizenship approval. Item 90 inserts proposed
subsection 25(1A) providing that the Minister must cancel certain approvals
of citizenship by conferral if:
- the
person has not yet become an Australian citizen (usually by taking the pledge
of allegiance)[246]
-
approval was given on the basis of the person meeting the
criteria for citizenship by conferral under provisions for either: general
eligibility; minors; or persons aged 60 or over or with a hearing, speech or
sight impediment[247]
and
- at the time of the proposed cancellation the Minister is
satisfied the person would not meet the requirements for approval under section
24 on either identity or national security grounds.[248]
If the person has not yet made the pledge, and there are other reasons the
Minister is satisfied the person no longer meets the requirements for approval
under section 24 (with the exception of the applicant not being present in
Australia), then cancellation is discretionary.[249]
This approach is replicated for other types of non-automatic
citizenship acquisition, for which there is currently no capacity under the Act
for the Minister to cancel an approval once granted. The same grounds for
cancellation will therefore apply to applications for citizenship by descent,[250]
on the basis of intercountry adoption,[251]
and applications to resume citizenship.[252]
Rationale
Under the current law, only (certain) applicants for
citizenship by conferral are required to take the pledge of commitment, and do
not automatically become citizens upon receiving approval. Applicants for other
forms of citizenship become citizens on the day their application is approved.[253]
There is therefore no period of time after approval and before the applicant
becomes a citizen, in which the Minister may consider cancellation for these
types of citizenship applications.
However, as explained above, the Bill significantly
expands the number of citizenship applicants who must take the pledge. For
these applicants there will now be a period of time after they receive approval
but before they take the pledge. By extending the cancellation provisions to
all types of non-automatic citizenship acquisition, the amendments appear to be
aimed at allowing the Minister to respond when, during this period, an
applicant may no longer meet the approval requirements.
Possible implications
The impact of the proposed amendments should be considered
in connection with other changes proposed by the Bill; particularly, the
expanded circumstances in which a citizenship applicant must take the pledge,
and amendments made to the Minister’s powers to delay a person from taking the
pledge (discussed under ‘Pledge of allegiance’ above). As more citizenship
applicants will be required to take the pledge, and the Minister will be able
to delay this for a longer period when contemplating cancelling approval, there
is likely to be more scope for the Minister to exercise these cancellation
powers. The amendments are not restricted by age, so the Minister has the power
to cancel approval granted to a minor.
Revocation
of citizenship
Quick guide
The Bill expands the circumstances in which the Minister
can revoke citizenship, to include the following:
- a person who the Minister is satisfied has obtained approval to
become a citizen as a result of fraud or misrepresentation, whether through
their own actions or those of a third party, without the requirement for a
conviction (proposed section 34AA)
-
a person who has acquired citizenship by descent, where the
Minister is satisfied that approval should not have been given (proposed
section 33A)—this replaces a narrower operation of law provision
- a child of a person whose citizenship is revoked by the
Minister under one of the above provisions, where the child does not have
another responsible parent who is Australian citizen (section 36, as amended
by item 114).
|
Revocation for fraud or misrepresentation without
conviction
What are the changes?
The Minister may currently revoke citizenship of an
Australian citizen where the Minister believes it is contrary for the person to
remain a citizen and either:
- the person has been convicted of an offence relating to fraud or
misrepresentation in relation to their citizenship application or
- the person received the Minister’s approval to become an
Australian citizen as a result of third-party fraud, for which a person has
been convicted.[254]
Item 113 inserts proposed section 34AA which
provides for additional Ministerial powers of revocation in cases of fraud or
misrepresentation. In contrast to the existing provision, proposed section
34AA does not require there to have been a conviction. It allows the Minister
to revoke citizenship if satisfied that the person obtained the Minister’s
approval to become a citizen as a result of fraud or misrepresentation, in
connection with either:
- the Minister’s approval of the person’s citizenship
- the person’s entry into Australia prior to the Minister’s
approval or
-
the grant of a visa, or permission to enter and remain in
Australia, prior to the Minister’s approval.[255]
The Minister must be satisfied it would be contrary to the
public interest for the person to remain an Australian citizen.[256]
Unlike section 34, under proposed section 34AA the fraud or
misrepresentation does not have to constitute an offence, or part of an
offence. Proposed subsection 34AA(4) states that the concealment of
material circumstances constitutes misrepresentation for the purposes of this
section. The fraud or misrepresentation must have occurred within ten years before
the date of revocation, and may have been committed by any person—not
necessarily the person whose citizenship is revoked.[257]
Rationale
The provision was included in the same form in the 2014
Bill, and was the key point of concern raised by the Senate Legal and
Constitutional Affairs Committee in its inquiry into that Bill.[258]
In its submission to the inquiry, the Department explained the expanded
revocation powers on the basis that ‘there are often limited resources to
prosecute all but the most serious cases relating to migration and citizenship
fraud’.[259]
Consequently, and in light of the time it may take to secure a conviction, the
Department stated that the power to revoke citizenship on the basis of a fraud
conviction has been rarely used, ‘even where the evidence of fraud is strong’.[260]
It pointed out that citizenship laws of Canada, New Zealand and the United
Kingdom already contain these Ministerial powers.[261]
However, June 2017 amendments to Canada’s Citizenship Act have amended
the procedure for revocation of citizenship on the basis of fraud, introducing
a new requirement that such revocation can only take place by way of Federal
Court order.[262]
Possible implications
A number of stakeholders have raised concerns with this
provision. The Australian Human Rights Commission (AHRC) has pointed to the
‘grave consequences’ involved for an individual whose citizenship is revoked,
arguing:
... any allegations of fraud or misrepresentation used as the
basis for revoking citizenship should be established as a result of a fair and
public hearing by a competent, independent and impartial tribunal established
by law.
The proposal to remove this important safeguard and allow
citizenship to be taken away simply by an administrative action by government
is contrary to these principles of due process.[263]
The Law Council of Australia, in its submission to the
Senate Inquiry for the 2014 Bill, similarly claimed that the proposed changes
appeared to undermine the rule of law principle of the presumption of
innocence, and entitlement to a fair and public trial. It suggested that
concerns regarding the capacity of law enforcement agencies to prosecute such matters
would be more appropriately addressed by dealing with the resourcing issues,
rather than lowering the applicable standard.[264]
Similar points were also put forward in relation to the 2014 Bill by Associate
Professor Alexander Reilly, who noted that if the grounds for revocation of
citizenship are too broad, the security of citizenship is compromised.
Associate Professor Reilly stated that although the Department should
rightfully make ‘rigorous and proper inquiries into a person’s character and
the integrity of their application’ before granting citizenship, once a person
holds citizenship the Department should bear the onus of providing ‘clear
evidence of fraud’.[265]
Additionally, the Refugee Council of Australia has argued
the proposal has the potential to disproportionately impact on refugees who
come by boat, who may misremember details of their past, mistrust government
authorities and will commonly need to obtain false documents or use the
services of smugglers in trying to find safety.[266]
The Refugee Council states that the process of obtaining visas, compounded by
factors including mental health consequences arising from persecution and the
need to rely on translators to communicate information, makes it ‘all too easy
for discrepancies, inconsistencies and misunderstandings to arise’ which may be
perceived as ‘misrepresentation’.[267]
The Kaldor Centre has argued that the discretion conferred
by proposed section 34AA is extremely broad, particularly as it may
interact with other broad discretions created under the Bill.[268]
It states, for example, that it is not clear whether the provision would allow
the Minister to decide a person has acted fraudulently in signing the
Australian Values Statement, if the person subsequently engages in conduct the
Minister considers to be inconsistent with the values contained in the
Statement.[269]
Similarly, the Kaldor Centre suggests that conduct engaged in after a person
acquires citizenship which demonstrates a lack of ‘integration’ into the
Australian community, could potentially be used by the Minister to conclude
that representations made to demonstrate integration at the time of the
citizenship application were ‘misrepresentations’.[270]
Draft policy guidance provided by the Department to the 2014
Senate inquiry set out a proposed (incomplete) framework for making a decision
under proposed section 34AA.[271]
This states that Ministerial ‘satisfaction’ would require the Minister to be
‘actually persuaded’ of the occurrence of fraud or misrepresentation, based on
findings or inferences of fact ‘that are supported by probative material or logical
grounds’.[272]
The majority report of the 2014 inquiry stated that it
appreciated the need for the proposed power to revoke citizenship for fraud or
misrepresentation without conviction. However, the Committee expressed concern
that the standard of proof required had been ‘reduced too far; that is, from
‘beyond a reasonable doubt’ to the satisfaction of the minister’.[273]
Although noting the assurances provided by the Department’s proposed policy
materials regarding the requisite level of satisfaction, the majority report
asked the Minister to confirm the ‘basis and material upon which his decisions
under proposed s 34AA would be exercised’.[274]
Statelessness
As with the existing grounds for revocation in the case of
fraud, proposed section 34AA is not expressly limited to dual nationals.[275]
This means that a person whose Australian citizenship is revoked under this
proposed provision, who does not hold and is not entitled to hold citizenship
of another country, may be rendered stateless. The Department has previously
noted that this is consistent with Australia’s obligations under the 1961
Convention on the Reduction of Statelessness (Statelessness Convention),
which allows for a person to be deprived of their citizenship where it has been
obtained by misrepresentation or fraud.[276]
Particular concerns have been raised about this in regards
to children. There are two ways in which a child may have their citizenship
revoked as a result of proposed section 34AA. The first is indirectly under
section 36, which provides that where a person’s citizenship is revoked, the
Minister may also revoke the citizenship of the person’s child, providing that
the child does not have another responsible parent who is an Australian citizen.[277]
Item 114 amends section 36 so that it applies to circumstances in which
the Minister revokes citizenship under proposed section 34AA. However,
subsection 36(3) prevents the Minister from revoking a child’s citizenship
under this provision where they would become stateless as a result. This is
consistent with Australia’s obligations under the Statelessness Convention,
which states that where the law provides for loss of nationality by a person’s
children as a consequence of that person losing or being deprived of their
nationality, this must be conditional on the child’s possession or acquisition
of another nationality.[278]
However, in addition to this provision, proposed
section 34AA is sufficiently broad to allow the Minister to revoke a
child’s Australian citizenship where the Minister is satisfied this was
obtained as a result of fraud or misrepresentation. Unlike section 36, proposed
section 34AA contains no provision limiting the Minister’s power to revoke
citizenship where the child would become stateless.
The Parliamentary Joint Committee on Human Rights raised
concerns about the compatibility of the measure with a child’s right to
nationality under the Convention on the Rights of the Child and the International
Convention on Civil and Political Rights.[279]
It stated:
Under international human rights law ministerial discretion,
in and of itself, does not constitute a sufficient safeguard against the risk
that the power may be exercised in a manner which would not be proportionate to
the stated objective of the measure. The same is true in relation to a
requirement that a power be exercised in the public interest.[280]
Application provisions
The revocation powers under proposed section 34AA will
apply to all approvals to become an Australian citizen given on or after
commencement of the provision, regardless of when the fraud or
misrepresentation occurred.[281]
Revocation
of citizenship by descent—new Ministerial discretion
What are the changes?
Existing section 19A provides that a person does not
become a citizen on the basis of descent unless they had an Australian-citizen
parent at the time of their birth (if born on or after 26 January 1949) or had
a parent who became an Australian citizen on 26 January 1949 (if the person was
born before this date). This means that by operation of the law, a person who
acquires Ministerial approval for citizenship by descent but does not in fact
meet these requirements, will not actually be a citizen. Under the current
provision, no Ministerial act is required to remove the person’s citizenship.
The Bill replaces this operation of law provision with a
Ministerial discretion. Item 30 repeals section 19A. Item 111
inserts proposed section 33A, which provides that the Minister may
revoke citizenship where it was granted on the basis of descent, and the
Minister is satisfied that the approval should not have been given.[282]
The Minister must not revoke citizenship where doing so would mean the person
was not a national or citizen of any country.[283]
A note at the end of proposed section 33A indicates that by operation of
existing section 36, a child of a person whose citizenship is revoked under
this proposed section may also cease to be an Australian citizen. Item 114
inserts a reference to proposed section 33A into paragraph 36(1)(a).
Rationale
The Explanatory Memorandum states that the amendments will
allow the circumstances of a particular case to be taken into account in
deciding whether a person’s citizenship should be revoked:
The discretionary nature of the decision under new section
33A means that issues such as the length of time that the person has been a
citizen, and the seriousness of any character concerns, can be taken into
account.[284]
Possible implications
Although introducing a Ministerial discretion in place on
an operation of law provision would theoretically appear to be a beneficial
amendment which enables consideration of the circumstances of a person’s case
before citizenship is revoked, the scope of the discretion under proposed
section 33A is very broad. Under existing section 19A, a person who becomes
a citizen by descent is only not entitled to this citizenship if they do not in
fact have a parent who was an Australian citizen at the time of the person’s
birth (or who became an Australian citizen on 26 January 1949). In contrast, proposed
section 33A appears to allow the Minister to revoke citizenship where a
person does not satisfy good character requirements under section 16, or meet
the broader requirements for citizenship approval under section 17—including on
identity or national security grounds, or where they fall within the offence
provisions under proposed subsection 17(4C) (inserted by item 28
of the Bill).
The proposed amendment would give the Minister the power
to revoke citizenship acquired by descent on grounds which are not available
for other types of citizenship acquisition, such as citizenship by conferral.
The Scrutiny of Bills Committee has raised concerns about the power being
exercised to cancel citizenship on character grounds, noting in particular that
there is no time limit imposed on the exercise of the power and that merits
review may not be available where the decision is made personally by the
Minister.[285]
Merits review
of decisions
Quick Guide
The Bill makes significant changes to the AAT’s role in
providing merits review of citizenship decisions, by:
- providing that personal decisions of the Minister, when made in
the public interest, cannot be reviewed by the AAT (proposed subsection
52(4))
- preventing a person under 18 from applying for AAT review of a
decision relating to citizenship by conferral if they do not meet the
residency requirements, in line with a restriction which already applies to
those over 18 (proposed subsection 52(2A))
- giving the Minister the power to override certain AAT
citizenship decisions made on the basis of character or evidence of identity,
where it is in the public interest to do so (proposed section 52A).
|
Excluding decisions from AAT review
What are the changes?
Section 52 currently sets out decisions made under the Act
which can be reviewed by the AAT, and covers decisions to refuse or cancel
approval of a citizenship application, or a decision to revoke citizenship. The
Bill amends this section to insert references to the expanded Ministerial
powers to cancel approval and revoke citizenship, as proposed by the Bill.[286]
Under existing section 52, there are only limited
exclusions to the right to merits review in the AAT.[287]
Subsection 52(2) prevents a person aged over 18 from applying for review of a
decision to refuse a citizenship application by conferral, unless they are a
permanent resident (or the application was on statelessness grounds). Proposed
subsection 52(2A), inserted by item 123, extends this
restriction to persons who have applied for citizenship by conferral on the
basis of being a person under 18, unless the applicant meets the residency
requirements under subsection 21(5).[288]
The Statement of Compatibility states that this amendment will remove what is
currently a ‘futile right to review’, where a person does not meet the
objective legislative requirements for citizenship.[289]
The Bill also introduces a broader exclusion in relation
to personal decisions of the Minister. Proposed subsection 47(3A),
inserted by item 120, provides that if a decision is made by the
Minister personally, the notice of the decision may include a statement that
the Minister is satisfied the decision was made in the public interest. Where a
notice includes this statement, proposed subsection 52(4) states that it
cannot be reviewed by the AAT.[290]
This amendment gives the Minister a broad power to exclude
from merits review, decisions that the Minister has made personally. This may
include, for example, decisions to revoke a person’s citizenship. The Bill does
not contain guidelines regarding public interest considerations which may guide
the issuing of a public interest notice, and a person cannot appeal such a
notice. Some level of parliamentary scrutiny is provided for under proposed
section 52B, which provides that where the Minister makes a decision which
is not reviewable because of proposed subsection 52(4), within 15
sitting days the Minister must table in both Houses of Parliament a statement
setting out the decision and its reasons.[291]
Rationale
The Explanatory Memorandum states:
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.[292]
It additionally provides 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’, though does not give
examples of what may be considered an appropriate case.[293]
Possible implications
Stakeholders have raised concerns about the removal of
this level of independent scrutiny of the Minister’s powers. The Australian
Human Rights Commission has noted that the overall objective of the merits
review system is to ensure that administrative decisions of government are
correct and preferable, and that merits review provides an opportunity to
correct any factual errors made by the primary decision maker.[294]
It points to Article 14 of the International Covenant on Civil and Political
Rights (ICCPR) which provides that all persons shall be entitled to a ‘fair
and public hearing by a competent, independent and impartial tribunal
established by law’.[295]
The Public Law and Policy Research Unit at the University of Adelaide has
questioned the justification provided in the Explanatory Memorandum,
submitting:
... it is erroneous to contend that being a representative of
the community gives a minister a ‘particular insight into community standards’ ...
We contend that it is precisely because the Minister is politically accountable
and making a ‘personal decision’ that merits review in the AAT is necessary.
Ultimately, what is required of the executive process of determining a
citizenship application is a decision based on merit and not a decision based
on political or personal considerations.[296]
The Scrutiny of Bills Committee noted that the AAT will
routinely apply government policy and guidance in making decisions, and
suggested that the Minister’s role in ‘representing the Australian community’
may be pursued through the development of applicable policy to guide the
exercise of these powers.[297]
The Committee stated that discretionary powers which have a direct and
immediate effect on personal rights and interests should, in principle, be
subject to merits review, and that a decision having been made in the public
interest is not in itself a sufficient reason to justify departure from this
principle.[298]
Decisions excluded from merits review under the Act will
still be subject to judicial review by the courts. The Refugee Council argued
that this is not an adequate substitute for merits review:
The role of judicial review is to assess whether a legal
error was made in the handling of a particular case, not whether the case
itself has merit. As such judicial review must be seen as a complement to (not
a substitute for) merits review, as its purpose is fundamentally different.[299]
The Kaldor Centre has also pointed to ‘numerous barriers
to accessibility of judicial review’, including costs, time delays and the
complexity of challenges.[300]
It further argues that Australian courts have been historically reluctant to
review the exercise of public interest discretions, with the High Court
previously stating that a public interest test in legislation will reflect the
Parliament’s intention that ‘political assessment of the public interest is to
be preferred to judicial assessment’.[301]
Ministerial
power to overrule AAT decisions
What are the changes?
Proposed section 52A gives the Minister the power
to set aside decisions of the AAT if satisfied it is in the public interest to
do so. This is a personal power which cannot be delegated.[302]
The discretionary power will apply to decisions which meet all the following
criteria:
- the decision by the original decision-maker was in regards to the
refusal of an approval of citizenship, or the cancellation of an approval given
under the Act
- the original decision-maker made the decision because they were
not satisfied the person was of good character at the time of the decision or
was not satisfied of the identity of the person
- the AAT, on review, set aside the decision under section 43(1)(c)
of the Administrative
Appeals Tribunal Act 1975 (Cth) and
- the person has not yet become an Australian citizen.[303]
Where a decision is made under this provision, within 15
sitting days of the decision the Minister must table in each House of
Parliament a statement setting out the Tribunal’s decision, the decision made
by the Minister in setting that decision aside, and the reasons for doing so.[304]
As with the powers to exclude decisions of the Minister from merits review by
the AAT, ‘public interest’ is not defined.
Rationale
In his second reading speech, Peter Dutton stated:
We have seen in recent times a number of Administrative
Appeals Tribunal (AAT) migration decisions that are outside community
standards. This has also occurred in relation to citizenship decisions.
Specifically, the AAT has found that people were of good character despite
having been convicted of child sexual offences, manslaughter, people smuggling
or domestic violence.[305]
The Minister has a similar power under the Migration
Act to set aside a decision of the AAT not to refuse to grant a visa, or
not to cancel a visa, where the Minister reasonably suspects that the person
does not satisfy the character test, and is satisfied that the refusal or
cancellation is in the national interest.[306]
The AAT has been the subject of recent media scrutiny, and
has received criticism from Mr Dutton regarding a number of Tribunal decisions
which have set aside decisions by the Department in relation to visa
cancellations.[307]
A number of the decisions subject to particular scrutiny are not publicly
available, due to restrictions on the types of refugee decisions which may be
published.[308]
Despite the criticism, the number of Department appeals of AAT decisions to the
courts is not high, and this is particularly the case in regards to citizenship
matters. In the 2015–16 financial year the AAT has reported that all appeals
lodged in the courts against Tribunal decisions were lodged by applicants.[309]
Between 1 July 2016 and 23 May 2017 the Department sought judicial review of
five AAT decisions, all of which related to applications for a Protection Visa.[310]
Furthermore, only a small number of citizenship matters are the subject of
appeals to the AAT in the first place: of over 19,000 applications for review
of a decision of the Department lodged in the AAT in 2015–16, only 275 related
to citizenship.[311]
However, the low rate of Departmental appeals should be considered in light of
the limitations of judicial review, in which the court is confined to
considering whether decisions have been made according to law, and cannot
consider the merits of the decision.
Possible implications
The proposed ‘set aside’ power has attracted similar
concerns from stakeholders to those in relation to the proposed power to
exclude decisions from AAT review. The Law Council of Australia has raised
strong concerns about the proposed reform, arguing that the AAT:
... exists to provide an important check and balance on
Ministerial power. This will be substantially watered-down through this
legislation.
Without checks on Ministerial power, scrutiny of Government
decision making is severely curtailed. Such scrutiny is important because
mistakes are made and due process not always observed.
The Administrative Appeals Tribunal was established nearly
half a century ago, because the Australian Government recognised that Ministers
and their Departments could make incorrect decisions on the basis of incomplete
or erroneous information.[312]
The Scrutiny of Bills Committee has similarly suggested
that the power to override a decision by an independent decision-maker ‘poses a
risk to community perceptions about the availability of independent merits
review and the risk that individual cases may be unduly influenced by political
considerations’.[313]
In its consideration of the Bill it states:
Although it may be accepted that the government has a
legitimate interest in aligning citizenship decisions with community standards,
the committee considers this must be balanced with community expectations
relating to the integrity of the system of independent merits review. The
availability of merits review in relation to decisions which may adversely
affect important individual interests can be thought of as an essential part of
the Australian administrative justice system. As such, aligning decisions with
the Minister’s view of community standards in individual cases is not the only
consideration relevant to assessing the justification of the proposed power to
override AAT determinations.[314]
The Kaldor Centre has suggested that the proposal will
create ongoing uncertainty for applicants who may have been successful before
the AAT, and raise concerns about ‘real or perceived executive influence’ over
the AAT, with the changes potentially undermining public confidence in the
AAT’s ability to provide an independent review of government decisions.[315]
It further argues that the mechanism of parliamentary oversight included in proposed
section 52B provides insufficient accountability, with limited consequences
likely to flow from the tabling of a statement in Parliament, and a lack of
specificity in regards to the information that must be provided in such a statement.[316]
The meaning of good character
Good character is not defined under the Act. Instead, the
Australian Citizenship Instructions set out a framework to guide
decision-makers—including the AAT—when making assessments regarding a person’s
‘good character’.[317]
This includes a non-exhaustive list of factors which should be considered,
including offences committed and the nature and circumstances of the offence;
particular associations which may mean an applicant is not of good character;
and other conduct issues, such as fraudulent interactions with government
agencies, or conduct which has potentially placed children in danger or which
would reason ably cause another person to be seriously apprehensive or fearful.
The decision-maker must also consider whether there are mitigating factors—such
as the length of time between the offence or conviction and the citizenship
application, or steps taken by the applicant to rehabilitate—which mean that
the applicant is of good character anyway.[318]
The Instructions further provide:
In weighing up the various factors, the decision maker must
not apply their own personal standards, but must apply community standards.
Having regard to the words of the Preamble, and the pledge to be made if
citizenship is approved, decision makers are asking themselves:
- would a person of good character have behaved the way the applicant did
- what is there to demonstrate that the applicant has upheld and obeyed
the law
- has the applicant behaved in accordance with Australia's community
standards
- does the applicant share Australia’s democratic beliefs and respect its
rights and liberties.[319]
Proposed section 52A was also included in the 2014
Bill in a substantially similar form, with the only difference being that the
proposed provision in the current Bill will also capture decisions to cancel a
citizenship approval under proposed sections 17A, 19DA and 30A. The
Bills digest for the earlier Bill provides a detailed analysis of the proposal
and concerns raised in relation to it.[320]
It states:
... 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.[321]
Disclosure
of personal information
The Bill makes amendments to the Australian Citizenship
Act and the Migration Act to allow for the use and disclosure of
personal information for the purposes of the two Acts. Item 128 inserts proposed
section 53A into the Australian Citizenship Act to provide that the
Minister, Secretary or an APS employee in the Department may:
- use personal information obtained under the Migration Act
or Regulations, for the purposes of the Australian Citizenship Act and
- disclose personal information obtained under the Australian
Citizenship Act or Regulations to the Minister, Secretary or an officer
within the meaning of the Migration Act, for the purposes of that Act or
Regulations.[322]
Item 134 inserts proposed section 488C into
the Migration Act which is in reciprocal terms to the provision above.
The Explanatory Memorandum explains the difference between
the terms ‘use’ and ‘disclosure’ within these provisions:
The exchange of personal information between officers within
one Department is regarded as a use, rather than a disclosure, of that personal
information for the purposes of the Privacy Act 1988 ...
However, it is possible that migration and citizenship
matters could be split between different portfolios in future. On this basis, a
provision that permits the disclosure of personal information obtained under
the Citizenship Act or the Citizenship Regulation to the Secretary or to an
officer (within the meaning of the Migration Act) for the purposes of the
Migration Act or the Migration Regulations is inserted.[323]
These provisions were similarly proposed in the 2014 Bill.
At that time, the Australian Privacy Commissioner questioned whether it was
necessary for the provisions to be drafted so broadly, noting that there were
already exceptions under the Australian Privacy Principles (APP) that may allow
for the exchange of certain information under the two Acts. [324]
The Privacy Commission also queried whether a Privacy Impact Assessment (PIA)
had been undertaken during the development of the legislation.[325]
The Explanatory Memorandum for the current Bill is silent as to whether a PIA
has been carried out.
Other provisions
Clarification
of status of abandoned children
Section 14 of the Act provides that where a person is found
abandoned in Australia as a child, they are presumed to be an Australian
citizen unless or until the contrary is proved. Item 22 repeals this
section, and the status of abandoned children is instead dealt with under proposed
subsections 12(8) and (9).[326]
These provisions have the effect of clarifying the operation of the presumption
applying to abandoned children. Proposed subsection 12(8) provides
that a person found abandoned in Australia as a child is taken to:
- have been born in Australia and
- have a parent who was an Australian citizen or permanent resident
at the time of the child’s birth, therefore satisfying the requirement for automatic
acquisition of citizenship by birth under paragraph 12(1)(a).
This presumption applies unless and until it is proved
that the person was outside Australia at any time before they were found
abandoned (proposed paragraph 12(9)(a)), or that a parent of the person
did not satisfy the requirements under paragraph 12(1)(a) (proposed
paragraph 12(9)(b)).
UNHCR has questioned the inclusion of proposed
paragraph 12(9)(a), in light of Australia’s obligations under the 1961
Statelessness Convention, arguing that evidence of a child being physically
in another country before it is found abandoned in Australia is not in itself
evidence that the child was born outside Australia.[327]
Adoption
Item 21 amends the requirements for automatic
acquisition of citizenship by adoption, under section 13, by inserting a new
requirement that the adoption process must have commenced when the person was
aged under 18.
Power to
make legislative instruments
Section 54 currently provides that the Governor-General
may make Regulations prescribing matters as required or permitted by the Act,
or which are necessary or convenient to carry out or give effect to the Act. Item
130 inserts proposed subsection 54(2) which states that the Regulations
may confer on the Minister the power to make legislative instruments. This
provision was contained in the 2014 Bill in the same form, with the Department
explaining:
Such instruments would be used to specify matters that
require regular updating, such as the places, currencies and exchange rates for
payment of application fees. Currently these matters are specifies every six
months in an instrument under the Migration Act; each time that instrument is
issued it is necessary to update a reference to the instrument number in the
Citizenship Regulations.[328]
The Scrutiny of Bills Committee has questioned the necessity
of this broad power, stating:
... while the use of delegated legislation in technical and
established circumstances (such as the payment of fees) is not controversial,
it is unusual for primary legislation to provide for the making of a regulation
which, in turn, provides a Minister with a wide power to make further delegated
legislation for unspecified purposes.[329]
Concluding
comments
This Bill proposes to make various changes to Australian
citizenship, including the introduction of a more restrictive set of
eligibility criteria for automatic and conferred citizenship. The measures
contained in the Bill are designed to ‘strengthen Australian citizenship’.
However, the Bill raises a number of matters worthy of
further discussion.
It has been a bipartisan objective for a number of decades
to promote Australian citizenship to migrants living in Australia as settlers.
The 2015 consultation report that the Government has promoted as a catalyst for
the Bill clearly links high citizenship take-up rates with successful
Australian citizenship policy. For example, Senator Fierravanti-Wells and
former Immigration Minister Ruddock write, ‘four in five migrants who settle in
Australia take out Australian citizenship–a measure of its success and
importance’.[330]
Yet as a number of submissions note, the measures in this
Bill will restrict citizenship.[331]
No evidence has been provided by the Government in relation to assessing how
many people may be affected by these changes, either in the short-term or into
the future. How many people will the Bill prevent from becoming Australian
citizens? Is it acceptable for an aspiring citizen to live indefinitely as a
permanent resident because their English does not meet ‘competent’ level?
In addition, a key concern raised by stakeholders is that
the Bill simultaneously expands Ministerial discretion in relation to the
granting and revoking of citizenship, while placing greater restrictions on the
merits review role of the AAT. The changes proposed by the Bill will also
result in key aspects of citizenship eligibility being set out in delegated
legislation rather than the Act itself. Details of the new English language and
‘integration’ requirements, as well as the content of the Australian Values
Statement, will be determined by the Minister via legislative instrument. This
means that there remains uncertainty about the exact eligibility requirements
which applicants for citizenship will be required to meet. The Minister will
also have greater discretion to exempt applicants from residence requirements,
refuse applications of a minor on character grounds, as well as to cancel
approvals before an applicant takes a pledge.
The Bill further confers on the Minister a number of
discretions to be exercised ‘in the public interest’, including the power to
revoke citizenship in cases of fraud or misrepresentation, exclude decisions
from merits review and set aside certain decisions of the AAT. Stakeholders have
raised concerns that, in the absence of statutory criteria or definition
regarding the meaning of ‘public interest’, these broad powers both increase
the possibility of arbitrariness in the granting and revoking of citizenship,
and threaten the transparency and accountability of executive decisions.[332]
[1]. M
Turnbull (Prime Minister) and P Dutton (Minister for Immigration and Border
Protection), Joint
press conference: strengthening the integrity of Australian citizenship,
transcript, 20 April 2017.
[2]. Parliament
of Australia, ‘Australian
Citizenship and Other Legislation Amendment Bill 2014 homepage’, Australian
Parliament website; E Karlsen, Australian
Citizenship and Other Legislation Amendment Bill 2014, Bills digest,
51, 2014–15, Parliamentary Library, Canberra, 2014.
[3]. Senate
Standing Committee on Legal and Constitutional Affairs, ‘Australian
Citizenship and Other Legislation Amendment Bill 2014’,
Inquiry homepage.
[4]. Senate
Legal and Constitutional Affairs Legislation Committee, Australian
Citizenship and Other Legislation Amendment Bill 2014 [Provisions], The
Senate, Canberra, 1 December 2014.
[5]. Australian
Labor Senators, ‘Dissenting
report by Australian Labor Senators’, Dissenting report, Senate Legal and
Constitutional Affairs Legislation Committee, Australian Citizenship and
Other Legislation Amendment Bill 2014 [Provisions], op. cit., pp. 43–45;
Australian Greens, ‘Dissenting
report of the Australian Greens’, Dissenting report, Senate Legal and
Constitutional Affairs Legislation Committee, Australian Citizenship and
Other Legislation Amendment Bill 2014 [Provisions], op. cit., pp. 47–48.
[6]. Australian
Citizenship Act 2007, preamble.
[7]. Turnbull
and Dutton, Joint press conference, op. cit.
[8]. Government
of Canada, ‘Find out
if you’re eligible: citizenship’, Immigration and Citizenship, accessed 1
September 2017.
[9]. Government
of the United Kingdom, ‘Prove
your knowledge of English for citizenship and settling’, Gov.UK, accessed 1
September, 2017.
[10]. M
Klapdor, M Coombs and C Bohm, Australian
citizenship: a chronology of major developments in policy and law,
Research paper series, 2009–10, Parliamentary Library, Canberra, 2009.
[11]. Australian
Citizenship Act 2007, as enacted.
[12]. R
Bauböck and C Joppke, eds, ‘How liberal
are citizenship tests?’, EUI Working Papers, RSCAS 2010/41, May
2010, p. 1.
[13]. N
Banulescu-Bogdan, ‘Shaping
citizenship policies to strengthen immigrant integration’, Migration Policy
Institute, Washington, D.C., 2 August 2012.
[14]. P
Mares, Temporary
migration and its implications for Australia, Papers on parliament
series, 57, Australian Senate, Canberra, February 2012.
[15]. J
Phillips and J Simon-Davies, Migration
to Australia: a quick guide to the statistics, Research paper series,
2016–17, Parliamentary Library, Canberra, 2017.
[16]. P
Ruddock and C Fierravanti-Wells (Parliamentary Secretary to the Minister for
Social Services), Australian
citizenship: your right, your responsibility: the national consultation on
citizenship: final report, report prepared for the Australian Government,
2015, p. 6.
[17]. T
Abbott (Prime Minister), P Dutton (Minister for Immigration and Border
Protection), C Fierravanti-Wells (Parliamentary Secretary to the Minister for
Social Services) and P Ruddock, Joint
press conference: new measures to strengthen Australian citizenship,
transcript, 26 May 2015.
[18]. P
Ruddock and C Fierravanti-Wells, op. cit. (Parliamentary Secretary to the
Minister for Social Services), Australian
citizenship: your right, your responsibility: the national consultation on
citizenship: final report, report prepared for the Australian
Government, 2015.
[19]. Turnbull
and P Dutton, Strengthening
the integrity of Australian citizenship, media release, 20 April 2017.
[20]. Turnbull
and Dutton, Joint press conference, op. cit.
[21]. Department
of Immigration and Border Protection (DIBP), Strengthening
the test for Australian citizenship, Discussion paper, Canberra,
April 2017.
[22]. The
Refugee Council of Australia has collated submissions to this discussion paper
on this web
portal.
[23]. P
Dutton (Minister for Immigration and Border Protection), ‘Second
reading speech: Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017’,
House of Representatives, Debates, 15 June 2017, p. 6613.
[24]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017 [submission no. 453], p. 17.
[25]. Ibid.,
p. 18.
[26]. T
Burke (Shadow Minister for Citizenship and Multicultural Australia), Labor’s
opposition to the Government’s changes to citizenship legislation,
transcript, 20 June 2017, p. 1.
[27]. P
Mares, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017 [submission no. 239], pp. 7–8.
[28]. K
Rubenstein, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
23 July 2017, [submission no. 404], p. 2.
[29]. I
MacPhee (Minister for Immigration and Ethnic Affairs), ‘Ministerial
statements: Australian citizenship’, House of Representatives, Debates,
6 May 1982, p. 2356.
[30]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 7, 2017, The Senate, 21 June 2017, p. 1.
[31]. A
personal decision is one made by the Minister personally rather than by a
delegate.
[32]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit.
[33]. Senate
Standing Committee for the Scrutiny of Bills, ‘Ministerial
responses’, Scrutiny digest, 8, 2017, The Senate, 9 August 2017, pp.
1–6. Minister for Immigration and Border Protection, Response to Scrutiny
Digest No. 7 of 2017 from the Senate Scrutiny of Bills Committee: Australian
Citizenship Legislation Amendment (Strengthening the Requirements for
Australian Citizenship and Other Measures) Bill 2017, 21 July 2017.
[34]. Ibid.,
pp. 1–2.
[35]. T
Burke (Shadow Minister for Citizenship), Labor’s
opposition to the Government’s changes to citizenship legislation, op.
cit.
[36]. N
McKim (Greens Immigration spokesperson), Peter
Dutton’s anti-immigration measures, media release, 15 June 2015.
[37]. S
Griff (NXT Immigration spokesperson), quoted in G Hutchens, ‘Nick
Xenophon Team says it’s “deeply worried” about Coalition’s citizenship bill’,
The Guardian, (online edition), 22 June 2017.
[38]. N
Xenophon (NXT Leader), quoted in J Kelly, ‘Xenophon
wants Dutton to deal on “harsh” citizenship package’, The Australian,
21 June 2017.
[39]. P
Hanson, ‘Good to see the PM is finally acting on the suggestions I made to him
about the citizenship test. #auspol’, tweet, 20 April 2017, https://twitter.com/paulinehansonoz/status/854821243429584896.
[40]. Pauline
Hanson’s One Nation, ‘One
Nation policies: immigration’, Pauline Hanson’s One Nation website, 2017.
[41]. Liberal
Democrats, ‘Immigration policy’, Liberal Democrats
website, 2017.
[42]. P
Karvelas, ‘Interview
with Jacqui Lambie’, RN Drive, Australian Broadcasting Corporation
(ABC), 13 June 2017.
[43]. Australian
Multicultural Council, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission no. 334], p. 1.
[44]. Law
Council of Australia, Proposed
new powers over AAT on citizenship decisions risks undermining vital checks and
balances, media release, 15 June 2017.
[45]. Australian
Human Rights Commission (AHRC), Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 447], p. 4.
[46]. The
Andrew and Renata Kaldor Centre for International Refugee Law and the Gilbert +
Tobin Centre of Public Law at the University of New South Wales (Kaldor
Centre), Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 378], pp. 1–2.
[47]. A
Bergin, ‘We
need a muscular defence of liberal values’, The Australian Financial
Review, 26 April 2017.
[48]. Ibid.
[49]. Refugee
Council of Australia, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 449], p. 1.
[50]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, p. 7.
[51]. The
Statement of Compatibility with Human Rights can be found at pages 70–88 of the
Explanatory
Memorandum.
[52]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 8, 2017, Canberra, 15 August 2017, pp. 2–31.
[53]. Australian
Citizenship Act 2007, subsection 12(1).
[54]. Ibid.,
subsection 12(2).
[55]. Item
135(1) and (4).
[56]. Item
135(2).
[57]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 13.
[58]. Ibid.,
p. 75.
[59]. J
Coates (Senator for Tasmania), quoted
in Estrin and Saul Lawyers, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 456], p. 3.
[60]. DIBP,
Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], 6 November 2014, [submission no. 3], p. 13.
[61]. Parliament
of Australia, ‘Australian
Citizenship and Other Legislation Amendment Bill 2014 homepage’, op. cit.;
E Karlsen, Australian
Citizenship and Other Legislation Amendment Bill 2014, op. cit.
[62]. Australian
Bureau of Statistics, Census 2016,
TableBuilder, accessed 1 September 2017.
[63]. K
Rubenstein (Australian National University), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], 6 November 2014, [submission no. 2], p. 2.
[64]. AHRC,
Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], 6 November 2014, [submission no. 4], p. 13.
[65]. A
Reilly (University of Adelaide), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], [submission no. 6], p. 3.
[66]. K
Rubenstein, quoted in M Koziol, ‘Dumped
Abbott-era changes resurface in Turnbull government’s citizenship bill’, The
Sydney Morning Herald, June 18 2017.
[67]. UNICEF
Australia, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 455], p. 4. Article 2(2) of the CRC provides that ‘States
Parties shall take all appropriate measures to ensure that the child is
protected against all forms of discrimination or punishment on the basis of the
status, activities, expressed opinions, or beliefs of the child's
parents, legal guardians, or family members’. [emphasis added] Article 7(1) of
the CRC may also be relevant in the context of these changes as it provides
that that a child shall have the right to acquire a nationality. See: Convention
on the Rights of the Child, done in New York 20 November 1989,
[1991] ATS 4 (entered into force for Australia 16 January 1991).
[68]. Estrin
Saul Lawyers, op. cit., p. 3.
[69]. Ibid.
[70]. AHRC,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 23.
[71]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit.,
pp. 16–17.
[72]. Australian
Citizenship Act, paragraph 21(2)(c).
[73]. Ibid.,
subsection 22(1).
[74]. Item
54, proposed paragraph 22(1)(a); item 56, proposed subsection 22(1A).
[75]. Item
54, proposed paragraph 22(1)(b).
[76]. Proposed
subsection 22(1B).
[77]. Item
57 repeals existing subsections 22(1A) and (1B).
[78]. Australian
Citizenship Act, subsection 22(2).
[79]. Dutton,
‘Second reading speech: Australian Citizenship Legislation Amendment
(Strengthening the Requirements for Australian Citizenship and Other Measures)
Bill 2017’, op. cit., p. 6610.
[80]. Fierravanti-Wells
and Ruddock, Australian
citizenship: your right, your responsibility, op. cit., p. 19.
[81]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 28.
[82]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 41.
[83]. MacPhee
(Minister for Immigration and Ethnic Affairs) ‘Australian
citizenship’, op. cit., p. 2360.
[84]. Productivity
Commission (PC), Migrant
intake into Australia, Inquiry report, 77, PC, Canberra, 13 April 2016,
p. 416.
[85]. Ibid.,
p. 418.
[86]. Burke,
Labor’s
opposition to the Government’s changes to citizenship legislation, op.
cit.
[87]. P
Mares, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 4.
[88]. Ibid.
[89]. AHRC,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 6.
[90]. Federation
of Ethnic Communities’ Council Australia, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 410], p. 3.
[91]. See
Submissions 77 and 253, Submissions
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017.
[92]. See
Submission 33, Submission 79, Submission 88, Submissions to Senate Standing Committee on Legal and
Constitutional Affairs, Inquiry into the Australian Citizenship Legislation
Amendment (Strengthening the Requirements for Australian Citizenship and Other
Measures) Bill 2017 [Provisions], July 2017.
[93]. Australian
Citizenship (Transitionals and Consequentials) Act 2007, Schedule 3,
subclause 5B(1).
[94]. Australian
Citizenship Act, subsections 22(4A) and (5).
[95]. Ibid.,
subsections 22(1C) and (5A).
[96]. Ibid.,
subsection 22(6).
[97]. Ibid.,
subsections 22(9) and (10).
[98]. Ibid.,
subsection 22(11).
[99]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 31.
[100]. Item
68, proposed subsections 22AA(3), (7).
[101]. Item
68, proposed subsection 22AA(6).
[102]. Item
67 repeals subsection 22(11) which currently contains this ground of
exemption.
[103]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., pp. 36–37.
[104]. Australian
Citizenship Act, subsection 22(9).
[105]. Ibid.,
section 22A; ‘IMMI
13/056—Specification under section 22C—Special Residence Requirement: June 2013’.
[106]. Ibid.,
section 22B.
[107]. Items
73 and 78 insert proposed subsections 22A(5) (in relation to the
‘engaging in activities of benefit to Australia’ ground) and 22B(5) (in
relation to the ‘overseas work’ ground) respectively, to provide for this
discretion.
[108]. Australian
Citizenship Act, paragraph 21(2)(e).
[109]. Proposed
paragraphs 21(9)(a), (b) and (c), inserted by item 53. A definition
of competent English is inserted into section 3 by item 8,
but this refers to the circumstances determined by a legislative instrument
under proposed paragraph 21(9)(a).
[110]. Klapdor, et al, Australian
citizenship: a chronology of major developments in policy and law, op. cit., p. 11.
[111]. Turnbull
and Dutton, Joint press conference, op. cit.
[112]. International
English Language Testing System (IELTS), ‘How IELTS is
scored’, IELTS website, 2017.
[113]. Dutton,
‘Second reading speech: Australian Citizenship Legislation Amendment
(Strengthening the Requirements for Australian Citizenship and Other Measures)
Bill 2017’, op. cit., p. 6610.
[114]. M
Turnbull and P Dutton, Joint press conference, op. cit.
[115]. P
Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment
(Strengthening the Requirements for Australian Citizenship and Other Measures)
Bill 2017’, op. cit., p. 6611.
[116]. C
Fierravanti-Wells and P Ruddock, Australian
Citizenship: Your right, your responsibility, op. cit., p. 18.
[117]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 58.
[118]. J
Gillard (Prime Minister), ‘Answer
to Question without notice: Multiculturalism’, [Questioner: E Husic], House
of Representatives, Debates, 20 September 2012.
[119]. T
Burke, Labor’s
opposition to the Government’s changes to citizenship legislation, op.
cit.
[120]. Australian
Multicultural Council, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 2.
[121]. University
of Adelaide’s Public Law and Policy Research Unit, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 398], p. 7.
[122]. University
of Melbourne Language Testing Research Centre, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 312], pp. 3–6.
[123]. Monash
University School of Languages, Literatures, Cultures and Linguistics, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 29], p. 1.
[124]. AHRC,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 8.
[125]. For
example, see La Trobe University, ‘English
language requirements’, La Trobe University website, 2017 and Deakin
University, ‘English
language requirements’, Deakin University website, 2017.
[126]. Sydney
University, ‘English
language requirements’, Sydney University website, 2017.
[127]. P
Dutton (Minister for Immigration and Border Protection), Labor’s
citizenship smokescreen, media release, 21 June 2017.
[128]. C
Elder, quoted in F Hunter, ‘It’s
a different world now’, The Sunday Age, 25 June 2017, p. 5.
[129]. T
McNamara, quoted in ABC Fact Check, ‘Fact
check: Will the Government’s new citizenship test demand a university-level standard
of English?’, ABC News Online, 28 June 2017.
[130]. IELTS,
‘Test
taker performance’, IELTS website, 2017.
[131]. Ibid.
Note: the table above is extracted from a larger dataset to highlight languages
commonly spoken in Australia.
[132]. B
Chiswick and P Miller, ‘The
Endogeneity between Language and Earnings: International Analyses’,
Journal of Labor Economics, 13(2), April 1995, pp. 246–288, JSTOR
database.
[133]. B
Chiswick and P Miller, ‘Language Skills and immigrant adjustment’, in D
Cobb-Clarke and S Khoo, eds, Public
policy and immigrant settlement, Edward Elgar Publishing, Cheltenham,
2006, pp. 130–31.
[134]. Ibid.
[135]. ABS,
Characteristics
of recent migrants, op. cit.
[136]. MacPhee,
‘Australian
citizenship’, op. cit.
[137]. Ibid.
[138]. Ibid.
[139]. Ibid.
[140]. Klapdor, et al, Australian
citizenship: a chronology of major developments in policy and law, op. cit., p. 11.
[141]. K
Andrews (Minister for Immigration and Citizenship), ‘Second
reading speech: Australian Citizenship Amendment (Citizenship Testing) Bill
2007’, House of Representatives, Debates, 30 May 2007, p. 4.
[142]. Citizenship
and Immigration Canada, ‘Language
requirements when applying for citizenship’, Government of Canada,
Citizenship website, 2 December 2016.
[143]. Gov.UK,
‘Prove your knowledge of
English for citizenship and settling’, British Government, British
Citizenship website, 2017.
[144]. Federal
Office for Migration and Refugees, ‘The
integration course certificate’, Germany Government integration website, 2
May 2013.
[145]. Immigration
and Naturalisation Service, ‘Integration
in the Netherlands’, Netherlands Government Integration website, 2017.
[146]. Citizens
Advice Bureau Spain, ‘How
to apply for Spanish nationality?’, Citizens Advice Bureau ACT, 2017. [Note
the English language version of the Ministry
of Justice website for the Spanish Government does not have the relevant
details for the citizenship language test.]
[147]. New
Zealand Government, ‘Apply
for NZ citizenship: language requirements’, New Zealand Government website,
5 April 2017.
[148]. United
States Citizenship and Immigration Service, ‘Study
material for the English test’, Department of Homeland Security, United
States Government website, 2017.
[149]. ABC
Fact Check, ‘Fact
check: will the Government’s new citizenship test demand a university-level
standard of English?’, op. cit.
[150]. Monash
University, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 2.
[151]. P
Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment
(Strengthening the Requirements for Australian Citizenship and Other Measures)
Bill 2017’, op. cit.
[152]. Proposed
paragraph 21(2)(fa).
[153]. Proposed
paragraph 21(9)(e) at item 53.
[154]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 27.
[155]. M
Turnbull and P Dutton, Joint press conference, op. cit.
[156]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 72.
[157]. Australian
Multicultural Commission, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 3.
[158]. University
of Adelaide, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 8.
[159]. Jesuit
Refugee Social Australia, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 387], p. 2.
[160]. AHRC,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 9.
[161]. Ibid.
[162]. Ibid.
[163]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, op. cit., pp. 10–11.
[164]. Ibid.,
p. 11.
[165]. Australian
Citizenship Act, paragraph 21(2)(f).
[166]. Ibid.,
subsection 21(2A).
[167]. Ibid.,
subsection 23A(7).
[168]. ‘IMMI
11/088—Determination for the approval of a citizenship test’. Note that
Attachment 2 (which sets out the questions and answers to the Standard and
Assisted Tests) and Attachment 3 (which sets out the Course-Based Test
assessment tasks and correct answers) are not publicly available.
[169]. Ibid.,
Part A, clauses 17 and 18; Part B, clauses 33 and 34.
[170]. Ibid.,
Part C, clause 48. A person who has commenced a Course-Based Test may not be
able to sit a Standard or Assisted Test, suggesting that there may be
circumstances in which a person who has failed the Course-Based Test cannot
undertake another test for their current citizenship application.
[171]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 69.
[172]. Turnbull
and Dutton, Joint press conference, op. cit.
[173]. Fierravanti-Wells
and Ruddock, Australian
citizenship: your right, your responsibility, op. cit., p. 4.
[174]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
p. 68.
[175]. DIBP,
‘Australian
citizenship practice test’, Australian Government, 2017; DIBP, ‘Practice
test questions’, p. 1.
[176]. Australian
Citizenship Council, Australian
citizenship for a new century, Australian Government, February 2000.
[177]. I
Michalowski, ‘Required
to assimilate? the content of citizenship tests in five countries’, Citizenship
Studies, Taylor and Francis Online, 15(6-7), 2011, pp. 749–768.
[178]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 36.
[179]. M
Turnbull and P Dutton, Strengthening
the integrity of Australian citizenship, op. cit.
[180]. Brotherhood
of St Laurence and Whittlesea Community Connections, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission No. 323], p. 11.
[181]. DIBP,
‘Citizenship
snapshot report’, Australian Government, 2014–15.
[182]. A
Reilly, ‘Explainer:
the proposed changes to Australian citizenship’, The Conversation,
20 April 2017.
[183]. AHRC,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 12.
[184]. Proposed
subsection 3(2) is inserted by item 14, and states that the Minister
may, by legislative instrument, determine a kind of permanent visa for the
purposes of subparagraph 21(5)(b)(ii) and paragraph 52(2A)(b).
[185]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 26.
[186]. UNICEF
Australia, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 5.
[187]. Australian
Citizenship Act, subsection 21(8).
[188]. Items
26, 34, 52, 100 and 102 omit phrases from the relevant application
provisions that limit the good character requirements to those ‘aged 18 or
over’.
[189]. P
Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment
(Strengthening the Requirements for Australian Citizenship and Other Measures)
Bill 2017’, op. cit., p. 6612.
[190]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 26.
[191]. K Rubenstein (Australian National
University), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], op. cit., p. 3.
[192]. UNICEF
Australia, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 4.
[193]. University
of Adelaide, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., pp. 4–5.
[194]. Kaldor
Centre, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 8.
[195]. Ibid.,
p. 9.
[196]. Australian
Citizenship Act, subsection 46(1); Australian Citizenship
Regulation 2016 (Cth), Part 3.
[197]. See,
for example; ‘Form
1300t—application for Australian citizenship (general eligibility)’, p. 28;
‘Form
118—application for Australian citizenship by descent’, p. 16.
[198]. DIBP,
‘Australian
values statement’, DIBP website.
[199]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 52. The invalidity is the result of the application, in the absence of
the signed declaration, not meeting the application requirements under
subsection 46(1).
[200]. Australian
Citizenship Instructions, (ACI) ‘16.2.3: who may sign a citizenship application
form’, LEGENDcom database; ACI, ’16.1 Application requirements under s46 of the
Act—overview’, LEGENDcom database. However, as noted by these Instructions, an
application will need to be signed before it can be finalised—the applicant
should be given a reasonable opportunity to complete their application.
[201]. Proposed
paragraph 46(1B)(b), inserted by item 118.
[202]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 31.
[203]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 53.
[204]. Ibid.
[205]. Migration Regulations
1994 (Cth), ‘Approval
of Australian Values Statement for Public Criterion 4019–2016/113—IMMI 16/133’.
[206]. DIBP,
‘Australian
citizenship: our common bond’, DIBP, Canberra, 2014, p. 17.
[207]. K
Rubenstein, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
23 July 2017, [submission no. 404], pp. 3–4.
[208]. Ibid.
[209]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit., pp. 10–11.
[210]. Kaldor
Centre, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 15.
[211]. Ibid.
[212]. Australian
Citizenship Act, subsection 26(1).
[213]. Ibid.,
subsections 21(6), (7) and (8) and 26(1).
[214]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 79.
[215]. Ibid.,
subsection 26(3).
[216]. Proposed
paragraph 32AB(3)(c). More information about the circumstances in which the
Minister may cancel an approval is provided under the ‘Refusals and
cancellations of approval’ section of the Digest.
[217]. Australian
Citizenship Act, subsection 26(4).
[218]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 83.
[219]. Kaldor
Centre, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., pp. 18–19.
[220]. Ibid.,
p. 19.
[221]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 60.
[222]. M
Turnbull and P Dutton, Joint press conference, op. cit.
[223]. Australian
Government, Strengthening
the test for Australian citizenship, op. cit., p. 19.
[224]. Item
136. Note that the Minister’s power to delay a person from making the
pledge when considering cancelling the citizenship approval, as set out in proposed
paragraph 32AB(3)(c), is to apply in relation to all approvals given
before, on or after 20 April 2017.
[225]. Item
137(6)—the proposed residency and good character requirements for persons
under 18 are to apply to applications lodged after commencement of the relevant
provisions (subitem 137(4)).
[226]. Item
137(6).
[227]. Item
139.
[228]. DIBP,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 32.
[229]. D
Pearce and R Geddes, Statutory
Interpretation in Australia , 8th edition, LexisNexis Butterworths,
Australia, 2014, p. 397.
[230]. Legal
Aid NSW, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission no. 385], pp. 9–10.
[231]. Ibid.
[232]. Refugee
Council of Australia, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 15.
[233]. Settlement
Council of Australia, Submission
to DIBP, Consultation on strengthening the test for Australian citizenship, 1
June 2017, p. 9.
[234]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit., p. 19.
[235]. D
Smith, J Wykes, S Jayarajah and T Fabijanic, ‘Citizenship
in Australia’, Department of Immigration and Citizenship, 2011, p. 14.
[236]. Item
27 inserts proposed subsection 17(4C) (in relation to citizenship by
descent); item 36 inserts proposed subsection 19D(7B) (in
relation to citizenship for adopted persons); item 103 inserts proposed
subsection 30(8) (in relation to resuming citizenship). Each of these
provisions is identical.
[237]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 82.
[238]. The
only difference between the provisions in the present Bill and the 2014 Bill is
some minor wording changes: the present Bill replaces references to
‘psychiatric institution’ with ‘mental health care facility’ and references to
a ‘residential program for the mentally ill’ with ‘residential program for
persons with a mental illness’.
[239]. Migration
Institute of Australia, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], [submission no. 14], p. 4.
[240]. Ibid.
[241]. AHRC,
Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], op. cit., pp. 17–18.
[242]. Ibid.,
p. 18.
[243]. UNHCR,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
21 July 2017, [submission no. 438], p. 10. See also: Convention
on the Reduction of Statelessness, done in New York on 30 August 1961,
[1975] ATS 46 (entered into force for Australia and generally 13 December
1975).
[244]. Ibid.
[245]. The
prescribed reasons for failing to make the pledge of commitment are contained
in Australian Citizenship Regulation 2016, section 9.
[246]. Under
proposed section 32AD at item 108, a person becomes an Australian
citizen on the day they make the pledge of allegiance, if this is required. If
a person is not required to take the pledge, they generally become a citizen on
the day the Minister approves citizenship.
[247]. Australian
Citizenship Act, subsections 21(2), (4) and (5) respectively.
[248]. This
provision is to apply where approval has been given to a person under either
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).
[249]. Item
93, proposed subsection 25(2).
[250]. Item
28 inserts proposed section 17A.
[251]. Item
36 inserts proposed section 19DA.
[252]. Item
104 inserts proposed section 30A.
[253]. Australian
Citizenship Act, sections 19, 19F and 28.
[254]. Australian
Citizenship Act, section 34. The Minister also has the power to revoke a
person’s citizenship granted by conferral, where the person has been convicted
of a serious offence after lodging their citizenship application (as defined
under subsection 34(5)).
[255]. Proposed
subsection 34AA(1).
[256]. Proposed
paragraph 34AA(1)(c). The Minister’s power to revoke citizenship under this
provision appears to be delegable, though in practice the Minister has not yet
delegated his powers under section 34.
[257]. Proposed
subsection 34AA(2) and (3).
[258]. Australian
Citizenship and Other Legislation Amendment Bill 2014, op. cit., item 66;
Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014,
The Senate, Canberra, December 2014, pp. 27–32, 40–42.
[259]. DIBP,
Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], op. cit., p. 5.
[260]. Ibid.
[261]. DIBP,
Answers
to questions taken on notice at a public hearing on 19 November 2014,
Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into
the Australian Citizenship and Other Legislation Amendment Bill 2014, p. 2.
Also see: Citizenship
Act 1977 (NZ), section 17; British
Nationality Act 1981 (UK), section 40; Citizenship Act
(R.S.C., 1985 C-29) (Can), section 10.
[262]. Parliament
of Canada, Bill C-6
(Royal Assent), assented to 19 June 2017, item 4; T Thanh Ha, ‘Federal
Court voids Canadian citizenship revocation for 312 people’, The Globe
and Mail, 12 July 2017.
[263]. AHRC,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., pp. 19–20.
[264]. Law
Council of Australia, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], [submission no. 12], p. 2.
[265]. A
Reilly, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], op. cit., pp. 4–5.
[266]. Refugee
Council of Australia, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 13.
[267]. Ibid.
[268]. Kaldor
Centre, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., pp. 22-24.
[269]. Ibid.,
pp. 23–24.
[270]. Ibid.
[271]. DIBP,
Answers
to questions taken on notice at a public hearing on 19 November 2014,
Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into
the Australian Citizenship and Other Legislation Amendment Bill 2014,
‘Attachment A: Draft outline of policy guidance on power to revoke citizenship
for fraud or misrepresentation without prior conviction’.
[272]. Ibid.,
Attachment A, p. 8.
[273]. Senate
Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014,
The Senate, Canberra, December 2014, p. 40.
[274]. Senate
Legal and Constitutional Affairs Legislation Committee, Inquiry into the
Australian Citizenship and Other Legislation Amendment Bill 2014, op. cit.,
pp. 41–2 (recommendation 1).
[275]. In
relation to section 34, subsection 34(3) states that the Minister must not
revoke a person’s citizenship if it will cause the person to become stateless,
but only where the revocation is on the basis that the person has committed a
‘serious offence’ after lodging their citizenship application (subparagraph
34(2)(b)(ii)). There is no similar limitation on the Minister’s power to revoke
citizenship in cases of fraud, where a person will be stateless as a result.
[276]. Convention
on the Reduction of Statelessness, done in New York on 30 August 1961,
[1975] ATS 46 (entered into force for Australia 13 December 1975), article
8(2); DIBP, Additional
information provided to the Senate Standing Committee on Legal and
Constitutional Affairs Inquiry into the Australian Citizenship and Other
Legislation Amendment Bill 2014, 19 November 2014, p. 4.
[277]. Australian
Citizenship Act, subsection 36(1).
[278]. Convention
on the Reduction of Statelessness, op. cit., article 6.
[279]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, op. cit., pp. 16–17. See also: International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1994); Convention
on the Rights of the Child, done in New York on 20 November 1989,
[1991] ATS 4 (entered into force for Australia on 16 January 1991).
[280]. Ibid.
[281]. Item
138.
[282]. Proposed
subsection 33A(1).
[283]. Proposed
subsection 33A(2).
[284]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op.
cit., p. 49.
[285]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit., pp. 6–7.
[286]. Items
121, 122, 125.
[287]. While
not an excluded decision, subsection 52(3) prevents the AAT from exercising a
discretion conferred on the Minister under subsections 22A(1A)
(determining that a person satisfies the special residence requirements) or
22B(1A) (determining that a person satisfies the alternative residence
requirements). Item 125 extends this to include a Ministerial discretion
exercised under proposed subsection 22AA(1) (in relation to waiving
the general residence requirement).
[288]. That
is, the applicant is either a permanent resident, or holds a permanent visa of
a kind determined in a legislative instrument under subsection 3(2).
[289]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017, op. cit.,
p. 76.
[290]. Item
126.
[291]. Item
127. Proposed subsection 52B(2) provides that such a statement is
not to include the name of the person affected by the decision.
[292]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements
for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 55.
[293]. Ibid.
[294]. AHRC,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 13.
[295]. Ibid.,
p. 14. See also: International
Covenant on Civil and Political Rights, op. cit.
[296]. University
of Adelaide, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 12.
[297]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit., p. 12.
[298]. Ibid.,
p. 13.
[299]. Refugee
Council of Australia, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 15.
[300]. Kaldor
Centre, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 33.
[301]. Ibid.,
pp. 25–26.
[302]. Proposed
subsection 52A(2), inserted by item 127.
[303]. Proposed
subsection 52A(1).
[304]. Proposed
subsection 52B(3). A statement under this subsection is not to include the
name of the person affected by the Minister’s decisions: proposed subsection
52B(4).
[305]. P
Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment
(Strengthening the Requirements for Australian Citizenship and Other Measures)
Bill 2017’, op. cit., p. 6613.
[306]. Migration Act 1958
(Cth), section 501A.
[307]. For
example, see: P Dutton, Interview
with Luke Darcy and Eddie McGuire: Triple M 'The Hot Breakfast' Melbourne: 22
May 2017: Administrative Appeals Tribunal; deadline for IMAs to lodge
protection claims, transcript, 22 May 2017; B Doherty, ‘Judge
defends independence of courts in wake of Dutton comments’, The Guardian,
(online edition), 19 June 2017.
[308]. S
Leathem (Registrar of the AAT), Opening
statement to the Legal and Constitutional Affairs Committee, Budget
Estimates 2017–18, Attorney-General’s Portfolio, 25 May 2017,
[309]. Ibid.,
p. 3.
[310]. DIBP,
‘Response
to question on notice: AAT decisions for judicial review’, BE17/003, Budget
Estimates 2017–18, Immigration and Border Protection Portfolio.
[311]. Administrative
Appeals Tribunal (AAT), Annual
report 2015–16: appendix 4, p. 129.
[312]. Law
Council of Australia, Proposed
new powers over AAT on citizenship decisions risks undermining vital checks and
balances, media release, 15 June 2017.
[313]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit., p. 14.
[314]. Ibid.
[315]. Kaldor
Centre, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 33.
[316]. Ibid.,
pp. 34–35.
[317]. Australian
Citizenship Instructions, chapter 9, LEGENDcom database.
[318]. Ibid.
[319]. Ibid.,
9.5.4.5.4.
[320]. E
Karlsen, Australian
Citizenship and Other Legislation Amendment Bill 2014, op. cit., pp.
13–17.
[321]. Ibid.,
p. 15.
[322]. Officer
is defined under section 5 of the Migration Act to include, unless
specified by the Minister, an officer of the Department, an officer for the
purposes of the Customs Act 1901, a person who is a protective service
officer for the purposes of the Australian Federal Police Act 1979, a
member of the Australian Federal Police or of a state or territory police force
(including a police force of an external Territory), a person authorised by the
Minister to be an officer for the purposes of the Act, or a person included in
a class of persons authorised by the Minister to be officers for the purposes
of the Act.
[323]. Explanatory
Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements
for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 58.
[324]. Office
of the Australian Information Commissioner, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Australian Citizenship and Other Legislation Amendment Bill 2014
[Provisions], op. cit., [submission no. 7].
[325]. Ibid.,
p. 2.
[326]. Inserted
by item 20.
[327]. UNHCR,
Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 9.
[328]. DIBP,
Submission
to the Senate Legal and Constitutional Affairs Constitutional Affairs
Committee, Inquiry into the Australian Citizenship and other Legislation
Amendment Bill 2014, op. cit., p. 20.
[329]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, op. cit., p. 15.
[330]. C
Fierravanti-Wells and P Ruddock, Australian
citizenship: your right, your responsibility, op. cit., p. 19.
[331]. For
example, see: AHRC, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., p. 4; Mares, op. cit., p. 1.
[332]. For
example, see: Castan Centre for Human Rights Law, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
July 2017, [submission no. 437], pp. 4–5; Kaldor Centre, Submission
to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],
op. cit., pp. 25–26.
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