This chapter examines the key issues raised by submitters during the
course of this inquiry and contains the committee's recommendations. It first
examines some general issues, before turning to issues with individual
proposals. Again, these are examined under the three broad themes outlined by
The importance of citizenship, the need for legislative change and the
urgency of the Bill
A number of submitters sought to impress upon the committee the value
and importance of Australian citizenship.
For example, Associate Professor Alexander Reilly told the committee that:
...we should, as a rule, be encouraging Australian residents to
become citizens. The primary right of citizenship is that a citizen can reside
in Australia as a member of the Australian community until their death and have
complete security of residence. It is important that the security of
citizenship is equal for all Australians whether they are automatic citizens or
citizens by application and conferral. We only want one citizenship in
Many submitters to the inquiry queried whether the changes outlined in
the Bill were truly necessary, suggesting that the case for them had not been
For example, the Asylum Seeker Resource Centre submitted that:
Such significant changes to the ability to call oneself an
Australian citizen need clear justification and the Government has failed to
sufficiently explain the need for these changes. In fact, Australia’s current
migration scheme is incredibly robust and the current suite of visa
cancellation and refusal powers set out in the Migration Act 1958 more
than adequately protects the security of the Australian community.
The only attempt at a rationale in the explanatory memorandum
are anecdotal stories of misrepresentation in citizenship cases. This is entirely insufficient for the broad and
sweeping powers proposed in this Bill.
Furthermore, there was concern at the speed within which the committee
had been asked to conduct this inquiry, with many submitters noting that they
had not had time to prepare a thorough examination of the Bill in the four business
days allowed them.
The Australian Human Rights Commission (AHRC), for example, pointed to the fact
that Mr Fletcher described the Bill as an update of Australian citizenship
law on its 65th anniversary and submitted that:
The reason given for the review of this legislation does not
appear to justify the urgency with which it has been put forward, or the
limited period of time allotted for its review. It may well be appropriate to
review citizenship legislation on the occasion of its 65th anniversary,
but that is not a reason why this Committee should be required to complete its
review in a month.
The AHRC and the Law Council of Australia recommended that the committee
seek an extension of time so that a more thorough inquiry could be conducted.
When asked about the urgency of the Bill, officers of the department
explained that they had 'no special insight'
into the Bill's urgency because they were 'not privy'
to the relevant decision-making.
'Strengthening program integrity'
Extending character requirements to
As outlined in the previous chapter, the Bill proposes extending to
minors the good character requirements that currently apply to adults seeking
to become Australian citizens.
In relation to this proposal UNICEF Australia expressed concern that:
The scope of these provisions could have devastating impacts
in depriving young people who have committed offences at a young age from
attaining Australian citizenship. This impact would extend to families who
would have to deal with the challenging prospect of not being able to hold
Australian citizenship with their children or to have their citizenship
application delayed because of the situation of a child. It is well established
both internationally and nationally, that the culpability of children before
the law is less than adults due to the difference in psychological and physical
development as well as their emotional and education needs. Children’s psychosocial capacity is not fully
developed and evolving throughout childhood heightening the propensity of
children to take risks, and increasing general susceptibility to peer influence
and to immediate reward. Children are
therefore at increased risk of contact with the criminal justice system as
their ability to make decisions, control impulses and understand long term
consequences isn’t completely developed.
The denial of any prospects of citizenship on this basis
could therefore be inconsistent with established knowledge and practice
regarding the capacity and culpability of children, and render a
disproportionate consequence for mistakes that are not uncommonly made by young
Due to the developmental nature of many such catalysts for
youth offending, mistakes made by young people should not be automatically
considered a ‘serious character concern’ which would deny young people
The Law Council noted that these concerns were compounded by the fact
that there are no 'criteria or guidance as to what may constitute "good
character" for the purposes of the Act'.
They recommended that, if the character test age was to be lowered, 'an
appropriate age limit should be clearly specified, rather than leaving it up to
the discretion of departmental officers to choose the age at which the
requirement will be enforced'.
They suggested that sixteen would be an appropriate age.
The department submitted that:
The character requirement for citizenship is defined in
Australian Citizenship Instructions (ACIs) and it allows decision makers to
take into account a wide range of discretionary factors, including the age of
the offender, the circumstances of the offence, patterns of behaviour, remorse,
rehabilitation and any other mitigating factors.
Police records are only available for minors aged 16 and
over. With the applicant’s consent, the department already obtains police
records for all applicants aged 16 and over for the purposes of assessing
whether the bar on approval for criminal offences (section 24(6)) applies
to the applicant. However, this information will now also be able to be used
for assessing whether the applicant is of good character. The department would
only consider information about serious character concern for minors aged under
16 years of age if that material comes to the department’s attention.
The best interests of the child must be taken into account in
any decision concerning an applicant under 18. The acquisition of citizenship
is not a right and countervailing considerations may be considered in relation
to the best interests of the child. The ACIs will be updated accordingly to
refer to the best interests of the child assessment.
A finding that an applicant is not of good character does not
prevent them from making a subsequent application for citizenship, if they are
able to show that they are of good character at the time of the decision on
their later application.
Extending the bar on citizenship
for offence-related reasons
Chapter 2 outlines the way in which the Bill seeks to extend the
bar on citizenship for specified offence-related reasons. As outlined at
paragraph 2.11 above, proposed subsections (g), (h) and (j)(ii) provide
The Minister must not approve the person becoming an
Australian citizen at a time:
(g) if, in respect of proceedings
for an offence against an Australian law in relation to the person, a court
releases the person subject to conditions relating to the person’s
behaviour—during any period during which action can be taken against the person
under an Australian law because of a breach of any of those conditions; or
(h) during any period during
which the person is confined in a psychiatric institution by order of a court
made in connection with proceedings for an offence against an Australian law in
relation to the person; or
(j) when the person is subject to
an order of a court requiring the person to participate in:
(ii) a residential program for
the mentally ill;
where the order was made in
connection with proceedings for an offence against an Australian law in
relation to the person.
In relation to proposed subsection (g), which would prevent someone
on a good behaviour bond from becoming an Australian citizen, the Migration
Institute of Australia submitted that:
Good behaviour bonds may be used instead of fines and may be
imposed with or without a conviction. They are commonly ordered under the
Young Offenders Act, again as recognition of the lesser culpability of youth,
for attendance at drug or alcohol counselling or to reside at a rehabilitation
centre...The proposal to defer conferral of citizenship on an individual who is
under a good behaviour bond is punitive. Good behaviour bonds should not be
included with custodial sentences, home detention or residential detention
programs as reason to delay or refuse citizenship.
In relation to proposed subsections (h) and (j)(ii), the AHRC expressed
concern that they apply only to the mentally ill and would apply in
circumstances where the person was not convicted.
The AHRC argued, therefore, that they:
...discriminate against people with a mental disability or a
cognitive impairment who have not been convicted of a crime but have been made
the subject of orders either requiring them to participate in "a
residential program for the mentally ill" or requiring them to be confined
in a psychiatric institution. This discrimination is not proportionate to the
end of identifying whether the people are of good character because there is no
necessary relationship with this end.
Revocation for fraud or
misrepresentation without conviction
As noted in the previous chapter, the Bill proposes to give the minister
the power to revoke a person's citizenship when satisfied that the person
became a citizen as a result of fraud or misrepresentation, even in the absence
of a criminal conviction.
This proposal was the subject of significant attention by submitters,
who raised four areas of concern.
The first of these was the lowering of the standard of proof required to
revoke citizenship for reasons of fraud from 'beyond a reasonable doubt' to the
satisfaction of the minister. The AHRC expressed concern about this change as
As the law presently stands, allegations of fraud or
misrepresentation must be proved in court beyond a reasonable doubt.
The Australian Citizenship Council explained [in 2000] the
rationale for this threshold as follows:
Generally speaking, the policy
underlying the power of government to deprive an Australian citizen of his or
her Citizenship is based on the idea that there should be certainty of
Australian Citizenship status, that the status should not be easily taken away,
and should not be taken away simply by an administrative action by government.
The Council noted that the requirement for conviction of an
offence in relation to fraud or misrepresentation was "an important
safeguard" and recommended that it continue.
The Bill proposes to change the threshold for revocation in
exactly the kind of way that the Council warned against.
The Refugee Council of Australia noted its concern that 'the amendments
would permit revocation of citizenship on the basis of the Minister's personal
It expressed its view that:
...the Government has provided no explanation as to why such
broad discretionary powers are needed to achieve the stated aims of the Bill.
The proposed amendments would lower the threshold for revocation from a
conviction of fraud by a court to the mere suspicion of fraud in the opinion of
a single Minister. [The Refugee Council] can see no reason why this threshold
must be lowered so dramatically or why the amendments could not include
safeguards, such as a requirement that there be objective evidence of fraud or
an exemption for individuals who were unaware that fraud had occurred.
The Scrutiny of Bills Committee expressed concern that the Bill includes
insufficiently-defined administrative powers where it comes to revocation.
The department submitted that:
To prosecute a case under a law of the Commonwealth, the
Commonwealth Director of Public Prosecutions requires sufficient evidence from
the facts of the case, and all surrounding circumstances, that the prosecution
would be in the public interest. In light of competing priorities, there are
often limited resources to prosecute all but the most serious cases relating to
migration and citizenship fraud. Because of these considerations and the time
it can take to secure a conviction, the power to revoke a person’s citizenship
on the basis of a conviction for a fraud-related offence is rarely used, even
where the evidence of fraud is strong.
In subsequent correspondence with the committee, the department noted
Concern was raised at the hearing about an administrative
decision about fraud being less certain than a criminal conviction which is found
beyond reasonable doubt. The department notes that the test in the Bill is that
the Minister must be satisfied that the elements to ground the revocation have
been made out. That is, the Minister must be satisfied that the person obtained
approval to become a citizen as a result of fraud or misrepresentation
connected with their visa or citizenship application.
The department's view is that the Minister must be
actually persuaded of the occurrence or existence of the fraud or
misrepresentation to attain the requisite level of satisfaction. Given that
there are serious consequences attached to the decision to revoke citizenship,
the Minister's satisfaction must be based on findings or inferences of fact
that are supported by probative material or logical grounds.
During the public hearing in Canberra, the department explained that the
matters that would be considered by it when deciding whether or not to bring a
particular case to the minister to consider revocation would be inserted into
the Australian Citizenship Instructions. Departmental officials explained that
the text emphasised in the previous paragraph was '[t]he state of our
The second area of concern was the fact that the evidence of the fraud
or misrepresentation could not be tested in a court or tribunal. The AHRC
explained its view that:
Given the grave consequences involved for an individual if
citizenship is revoked, the Commission considers that 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 department stated that:
This new provision would include appropriate safeguards,
including a public interest test, review rights and a time limit beyond which
citizenship could not be revoked.
As many submitters explained, however, the Bill also seeks to remove all
merits review rights in respect of decisions made by the minister personally.
The Department explained that it has been the policy of successive governments
to have the minister make all revocation decisions personally,
so it would appear that these decisions would not be subject to merits review
(were the Bill to pass).
The third area of concern was that the fraud could be perpetrated or the
misrepresentation could be made by a third party without the knowledge or
consent of the person whose citizenship was to be revoked. The AHRC explained
that, according to the proposed changes:
The person need not have engaged in any fraud or
misrepresentation themselves or even have known that there was any fraud or
misrepresentation involved. For example, the Explanatory Memorandum suggests
that a person's citizenship could be revoked if the Minister becomes satisfied
that a misrepresentation was made by a person's migration agent.
The fourth concern revolved around the argument that there may be
legitimate reasons why people engage in misleading conduct during the migration
process. The Migration Institute of Australia expressed the view that:
Many people come to Australia from countries where official
records no longer exist due to war, natural disaster or are refugees within the
UNHCR definition. In these circumstances they may provide information that is inaccurate
or have obtained false documents to aid their escape. Similarly, personal
information can become inaccurate through transcription, translation and
illiteracy. It is conceivable that these individuals could be caught by such a
provision, as could the child of parents who misrepresented their claim to
citizenship. The new subsection 34AA(10) does not allow applicants, such as
asylum seekers, the opportunity to address the circumstances of the accused
fraud or misrepresentation, thereby denying them natural justice.
Finally, there were concerns that the exercise of the power to revoke in
circumstances of fraud or misrepresentation without conviction could render
people stateless. The AHRC noted that
The Government says that a child could only be deprived of
his or her citizenship and made stateless if the child was responsible for the
fraud or misrepresentation him or herself. If
this is what was intended, the Commission welcomes the clarification and an
appropriate amendment should be made to the Bill. However, the Government's
statement appears to be a misreading of the Bill and the Australian Citizenship
Act as they currently stand. The Explanatory Memorandum refers to s 36 of
the Act which relevantly provides that if a parent’s citizenship is
revoked, then the Minister may also revoke his or her child's citizenship,
unless the child would otherwise be stateless.
However, if the child's visa is revoked directly as a result
of the proposed s 34AA, there is no saving provision if the child would
otherwise be stateless. The mistake in the Explanatory Memorandum is assuming
that a child's visa can only be revoked directly if the child was responsible
for the fraud or misrepresentation. On the contrary, it is clear from proposed
s 34AA(2) that a child could have his or her citizenship revoked, and
become stateless, if the Minister was satisfied that there was a misrepresentation
by any person in connection with the child's citizenship application,
entry into Australia or grant of a visa. Further...such misrepresentation need
not be proved in court proceedings. It is enough that the Minister is
personally satisfied that someone engaged in misrepresentation.
The Refugee Council also expressed concern that
...the Bill fails to outline a process or mechanism whereby children
rendered stateless by the revocation of citizenship could resolve their status.
Merely granting a stateless child an ex-citizen visa will do nothing to address
their statelessness, nor will it provide them with the rights and protections
associated with citizenship. In the absence of a clear status resolution
process for stateless people, the passing of this Bill could result in some
children being permanently disenfranchised.
At the hearing in Sydney, the department conceded that 'it would seem
possible' that children could be rendered stateless under the operation of
The department subsequently wrote to the committee as follows:
The Committee expressed concern about what might happen to a
stateless child whose citizenship is revoked under this provision. The
department notes that there are a number of steps in the process, all of which
are discretionary and all of which require consideration of the best interests
of the child. The first and third steps are decisions made under Citizenship
Act. The second and fourth step is made under the Migration Act. Those steps
- Consideration of whether there are grounds to revoke the child's
citizenship due to fraud on the child's citizenship application. The
decision-maker would consider international law obligations when making this
discretionary decision, including interpretation of the Statelessness Convention
and the best interests of the child.
- If citizenship is revoked, the child would automatically acquire an
ex-citizen visa which gives them the right to remain in Australia, although it
does not give them a right to return to Australia should they depart.
- The client could reapply for citizenship after a year, although they
would be subject to the character test.
- Depending on the circumstances surrounding the fraud or
misrepresentation, consideration might be given to whether to cancel the
ex-citizen visa. The Minister, or delegate, would consider the Statelessness
Convention, best interests of the child and guidance material around
international law obligations, in deciding whether to cancel the visa.
The department also provided to the committee, in answers to questions taken
on notice, a draft 'outline of policy guidance on power to revoke citizenship
for fraud or misrepresentation without prior conviction'.
The draft policy guidance includes definitions of 'fraud' and
'misrepresentation', and outlines issues which are to be included in any
submission to the minister (as discussed in paragraph 3.21 above) including:
details of the fraud or misrepresentation;
any evidence relied upon;
the source(s) of the evidence;
the response of the applicant to the natural justice letter;
public interest analysis;
'best interests of the child' analysis, if applicable; and
discussion of statelessness, if applicable.
In respect of evidence upon which the minister may make a decision to
revoke a person's citizenship, the draft policy guidance states:
The Minister must be 'satisfied' that the elements to ground
the revocation have been made out...This means the Minister must be actually
persuaded of the occurrence or existence of the fraud or misrepresentation to attain
the requisite level of satisfaction. Given that there are serious consequences
attached to the decision to revoke citizenship, the Minister's satisfaction
must be based on findings or inferences of fact that are supported by probative
material or logical grounds. Probative material is material that establishes or
contributes to proof of a fact or issue.
Officers should recognise that the process of reasoning that
is necessary to arrive at the decision to revoke a person's citizenship must
reflect the seriousness of such a decision. This means that the evidence relied
upon needs to be exact, definite and result in a direct inference that approval
of the person's acquisition of citizenship was a result of fraud or
misrepresentation. The decision to revoke citizenship must therefore be legally
defensible, based on the evidence at hand.
'Underlining the importance of connection to Australia'
Restricting the operation of the
'ten year rule'
As explained in the previous chapter, the Bill proposes restricting the
operation of the ten year rule so as to prevent certain categories of people
from relying upon it to become Australian citizens.
Professor Kim Rubenstein pointed to the explanation in the Statement of
Compatibility with Human Rights that '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' and expressed concern that these changes undermine this principle.
Associate Professor Reilly explained the effect of the proposed
change as follows:
This amendment will affect two groups of prospective citizens
in particular. First, children of asylum seekers who are designated unlawful
non-citizens until they are granted a protection visa; second children of
illegal immigrants living in the community with no visa who have had children
while living illegally and undetected in Australia.
If parents of a child who has lived
in Australia since birth remain or become unlawful non-citizens, this does not
reflect on the behavio[u]r or the needs of the child. In our submission, it is
wrong in principle to deny automatic citizenship to a child who was born in
Australia and spent their first 10 years living in Australia, regardless of
their immigration status. There is no ground to deny full membership in the Australian
community to a person who speaks Australian English, has only Australian and
Australian-based friends, has lived only in the Australian landscape, is
steeped in Australian culture, and has experienced all of their education in
Australia. Young people in this position should have the full security of
residence and other rights and duties of an Australian citizen, whether or not
they have citizenship status in another country. Their immigration status, or
that of their parents, is irrelevant to the depth of their connection to
Australia. To use immigration status as a ground to deny citizenship is to put
form over substance.
We acknowledge that the motivation
for this amendment is a concern that the ten year rule has the ‘effect of
encouraging some temporary residents and unlawful non-citizens to have children
in Australian and to keep their child onshore until at least their tenth
birthday’. We note that no evidence is given in support of this concern.
Regardless, we submit that denying citizenship to children resident in
Australia for 10 years from birth is not the means by which to prevent illegal
immigration practices. Furthermore, young people born in Australia who are not
subject to illicit immigration practices, such as children of asylum seekers
born in Australia, will be affected by the law.
The AHRC, referring to the views of the Australian Citizenship Council
that Australia should maintain its 'inclusive and non-discriminatory approach
to Australian Citizenship', expressed concern that:
This Bill would discriminate between children who were born
in Australia and have been lawfully present in Australia for 10 years, based
solely on the initial immigration status of their parents. The Explanatory
Memorandum to the Bill does not deal with this issue at all. No legitimate object has been put forward in
order to justify the discriminatory treatment.
The Commission further noted the views of the Australian Citizenship
Council that the so-called 'ten year rule' should not be changed unless there
is strong evidence of its abuse
and submitted that:
There is little discussion in the Explanatory Memorandum of
any evidence supporting the claim of abuse of the ten year rule. The only
reference to something said to support the amendment is a 'correlation' between:
- the nationalities of people
applying under the ten year rule; and
- the nationalities of people
seeking a ministerial intervention under the Migration Act 1958 (Cth).
No data is provided about how often either of these kinds of
applications are made or the trend in applications over time.
The department recognised that the Australian Citizenship Council has
recommended that the ten year rule be retained unless there is evidence of its
abuse and explained that:
Concerns have since been raised that the ten year rule has
the effect of encouraging some temporary residents and unlawful non-citizens to
have children in Australia and to keep their child onshore until at least their
tenth birthday, whether lawfully or unlawfully, in the expectation that the
child will obtain citizenship and provide an anchor for family migration and/or
justification for a ministerial intervention request under the Migration Act.
The committee was not provided with evidence of any identified cases of
abuse. The department explained that there are about 400 applications under the
ten year rule annually.
The Refugee Council of Australia expressed concern that, when combined
with the reintroduction of temporary protection visas (as proposed in the
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum
Legacy Caseload) Bill 2014, on which this committee has recently reported),
this meant that
...children born in Australia whose parents are TPV holders may
have no means of acquiring Australian citizenship other than through the 'ten
year rule'. Passing the Bill in its current form could render these children
permanently ineligible for Australian citizenship. Unable to return to the
country of their parents' origin due to fear of persecution and barred from
obtaining citizenship in the country where they have lived for their entire
lives, they may never have the opportunity to enjoy the rights associated with
The department asserted that '[t]he proposed amendments are reasonable
and proportionate within the context of Australia’s border security, visa and
In relation to the retrospectivity of these provisions, the department
It is proposed the amendments to the ten year rule apply to
persons who turn ten years of age on or after the date of commencement. This is
necessary if the changes are to have any practical effect in the next few
years. Applying the changes only to children born after commencement would mean
that children born in Australia in the last ten years, regardless of their
migration status, would continue to obtain citizenship by operation of law
throughout the next ten years.
Associate Professor Reilly expressed a concern that these amendments may
This argument relied on the fact that the High Court has held that 'there must
be some limit to the circumstances in which parliament can exclude someone from
citizenship'; Associate Professor Reilly suggested that there is 'a good chance'
that these proposals go beyond this limit and are therefore beyond the
parliament's power to make laws with respect to naturalisation and aliens in
subsection 51(xix) of the Constitution.
The department appeared to accept that this is the only constitutional head of
power that could support the Bill,
though it also pointed to other comments made by members of the High Court that
suggest that the purported limit does not exist.
Restricting review of decisions in
the Administrative Appeals Tribunal
As explained in Chapter 2, the Bill seeks to exclude review of
certain decisions made by the minister, and to allow the minister to set aside
decisions of the AAT.
Submitters expressed significant concern about these proposed changes.
In support of existing arrangements, the Law Council of Australia noted that:
AAT review is generally designed to promote good decision
making and provide individuals affected by adverse decisions with a relatively
straightforward, inexpensive mechanism by which to seek review. This accords
with the rule of law principle that Executive powers should be carefully
defined by law.
The Refugee Council of Australia agreed, noting that it was
...particularly troubled by statements in the Explanatory Memorandum
which assert that personal Ministerial powers are necessary to ensure that the
findings of "an unelected administrative tribunal" will reflect "community
standards and values". The purpose of independent merits review is to
ensure that individuals subject to the decisions of government officials are
able to receive a fair hearing, in accordance with Australian law.
Administrative tribunals are intentionally "unelected" and
independent to ensure that their decision-making will not be influenced by political
considerations or the vagaries of public opinion. Allowing the Minister to
overturn the findings of the AAT and limiting the AAT's remit in the manner proposed
in this Bill would essentially defeat the purpose of independent merits review.
Professor Jane McAdam described these proposals as making
...a mockery of the merits review process by undermining
procedural fairness and the independent powers of the Tribunal, and interfering
in due process and the rule of law.
The Scrutiny of Bills Committee considered that the changes that seek to
limit access to merits review (or to set aside the decisions of the AAT) 'may
be considered to make rights, liberties or obligations unduly dependent upon
Excluding review of the minister's
Submitters expressed concern about the exclusion of decisions made
personally by the minister from merits review, noting the views of the
Administrative Review Council that:
The status of the primary decision-maker is not a factor
that, alone, will make decisions of that person inappropriate for merits
For example, the fact that the decision maker is a Minister
or the Governor-General, is not, of itself, relevant to the question of review.
Rather, it is the character of the decision-making power, in particular its
capacity to affect the interests of individuals, that is relevant.
Associate Professor Reilly noted that:
It is not at all clear why the Act removes certain types of
decision from review in the AAT. The new s 52(4) of the Bill provides that
personal decisions of the Minister are not subject to review by the AAT if the
Minister includes a statement that he/she is satisfied the decision was made in
the public interest. The public interest criterion is very vague. For proper
decisions to [be] made based on this criterion, the Minister needs to specify
what matters he/she will take into account. With these matters specified, there
is no reason why a Tribunal could not apply the same criteria to make the
The new s 52A empowers the Minister to set aside
decisions of the AAT if the Minister is ‘satisfied it is in the public interest
to do so’. The explanatory memorandum (, ) points to decisions of the
AAT which is states are not consistent with community standards. If this is the
opinion of the government, the best way to remedy it is to make a ministerial
direction that will guide the AAT in future decision making, not to remove
merits review in the AAT.
The department submitted that:
As an elected Member of
Parliament and Minister of the Crown, the Minister has the privilege of
representing the Australian community and has gained a particular insight into
community standards and values. It is not appropriate for an unelected
administrative tribunal to review such a personal decision of a Minister on its
merits. However, such personal decisions would still be subject to judicial
review in the Federal or High Courts.
The Refugee Council of Australia, however, submitted that judicial
review was an insufficient safeguard because:
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. It
is not acceptable, in RCOA's review, to justify the denial of merits review on
the basis that a person would have the opportunity to seek judicial review.
Allowing the minister to set aside
decisions of the Administrative Appeals Tribunal
In relation to the ministerial power to override decisions of the
Administrative Appeals Tribunal, the Asylum Seeker Resource Centre submitted
This power is alarming, for no person or institution should
sit beyond the reach of the legal system. This Bill and others recently
proposed by the Minister for Immigration
and Border Protection...seek to grant the Minister sweeping powers to decide on a
range of migration matters with serious consequences for individuals with no
court oversight whatsoever.
This power puts the Minister’s decisions beyond the reach of
the courts and denies procedural fairness to applicants.
For asylum seekers and refugees, decisions about cancellation
and refusal of visas are, without overstating it, matters of life and death. It
is only appropriate that decisions with such serious consequences undergo
appropriate levels of scrutiny and review. Appropriate procedural safeguards
are fundamental to any such decisions. This Bill seeks to remove them.
The ASRC firmly believes that decisions relating to the
revocation of citizenship must be subject to legislative safeguards, including
access to merits review. In the situation of refugees, such decision making has
the potential to render a person stateless, see them indefinitely detained or
force them to return to face persecution. In light of these consequences, it is
wholly inappropriate for the Minister to hold such unchecked power.
The AHRC expressed concern that:
The amendments would increase individual Ministerial
discretion and reduce independent merits review of administrative decision
making. This is contrary to a primary focus of administrative law over the last
40 years, which has aimed at making administrative decisions more principled
and consistent by allowing independent merits review of decisions that have a
significant effect on individual rights.
The proposed amendment significantly reduces the scope of
independent merits review. The aim of an independent merits review tribunal is
to provide for a check on executive decision making. These amendments provide
the opposite: an executive check on independent tribunal decisions.
The department assured the committee that this power was similar to that
currently in section 501A of the Migration Act, pointing to remarks
by the former President of the AAT—Justice Downes—that the power in
section 501A is 'rare, if not unique', but that it does not threaten the
independence of the AAT.
The department continued that:
It is arguably more important for the Minister to be able to
overturn an adverse AAT decision in the citizenship context than in the
migration context. The acquisition of citizenship by a client who is, for
example, of questionable character is far more serious than the acquisition of
a visa because citizenship is a stable status which by design and in practice
is extremely difficult to remove. Although a visa can give a person the right
of permanent residence, it is always subject to cancellation. It is anticipated
that such a power would be used rarely, in matters where the facts of the
crimes were particularly egregious and the decision clearly beyond community
Use and disclosure of personal
As outlined in the previous chapter, the Bill proposes allowing the
minister and specified public servants to disclose and use information obtained
under the Australian Citizenship Act or the Migration Act (or
their regulations) for the purposes of the other (and their regulations).
The Australian Privacy Commissioner, whose submission was limited to
these changes, noted that he had not been consulted in relation to these
proposals and was unaware whether a Privacy Impact Assessment had been carried
...whether the broad range of information sharing proposed
under items 74 and 77 is necessary, proportional and the least privacy
invasive option. It would appear that for some of this information sharing,
other exceptions in Australian Privacy Principle (APP) 6 might be
available to the [Department] which would obviate the need for the broad
authorisation in items 74 and 77 of the Bill. Further, those other
exceptions would allow [the Department] to share information, while also
enabling individuals to maintain control over how their personal information is
handled (for example, where the [Department] obtains the individual's consent).
The Commissioner outlined three possible exceptions under APP 6.
The committee believes that it is important to review Commonwealth laws regularly
to ensure that they are continuing to serve their intended purposes. As part of
such a review, the department has identified that the Australian Citizenship
Act requires amendment in order to strengthen the integrity of Australia's
citizenship program, underline the importance of new citizens having a
connexion to Australia and improve decision-making under the Act. These are all
worthy goals. It is for this reason that the committee recommends that the Bill
be passed, subject to a number of comments and recommendations.
As was noted by many submitters, this inquiry was conducted within a
very limited period of time. Even following questioning of departmental
officials, the reason for this Bill's urgency remains unclear to the committee.
It is regrettable that the committee did not have more time for detailed
consideration of the Bill's provisions.
The committee appreciates that all governments have a legislative
program and associated deadlines. In future, however, the committee would very
much prefer to be given more time to scrutinise proposed legislation and, where
this is not possible, to be given a clear justification of why it is not
possible, particularly when a Bill's urgency is not immediately obvious.
Revocation for fraud or
misrepresentation without conviction
The committee understands why it is undesirable for revocation for fraud
or misrepresentation to require a conviction in all circumstances. There is a
wide range of factors that must be considered by prosecutors when deciding
whether to prosecute an individual for fraud, many of which do not relate to
the guilt or innocence of the accused. These include competing priorities,
resource limitations and the seriousness of the alleged conduct.
The committee appreciates, therefore, the need for the proposed power to
revoke a person's citizenship for fraud or misrepresentation without a
conviction. The committee is concerned, however, that the standard of proof
required for a person's citizenship to be revoked for fraud or
misrepresentation without conviction has been reduced too far; that is, from
'beyond a reasonable doubt' to the satisfaction of the minister.
Motivated by this concern, the committee asked a number of witnesses
before it about possible alternatives. Associate Professor Reilly, for
example, responded by discussing in some detail the role that ministerial
directions could play in providing further clarity for decision-makers.
In response, the department wrote to the committee to stress that:
Possible alternatives to these measures which were raised
during the hearing, such as further tightening of policy guidance in the
Australian Citizenship Instructions...or creation of a legislative instrument
setting out the Minister's expectations, are not guaranteed to resolve the
Minister's concerns. Further, too much direction in the [Australian Citizenship
Instructions] runs the risk of fettering the discretion of decision-makers.
The department also provided the committee with draft policy guidance in
relation to revocation of a person's citizenship for fraud or
misrepresentation. This draft policy guidance provides some greater detail
about how and on what bases the minister may make such decisions.
The AHRC agreed to take on notice the committee's questions about what
possible safeguards could ameliorate some of these issues. It suggested two,
ensuring that decisions to revoke citizenship are subject to merits
review by removing proposed subsection 52(4) (which excludes from merits
review any decision made by the minister personally that the minister states is
in the public interest); and
requiring that revocations under proposed sections 33A and 34AA
must take place within two years of conferral.
As noted above, the department sought to assure that committee that,
although the legislation only required that the minister be satisfied that the
grounds for revocation exist, the department would—as a matter of policy—seek
to ensure that this satisfaction is 'based on findings or inferences of fact
that are supported by probative material'.
The committee welcomes these assurances. However, given the seriousness
of revoking a person's citizenship and the need for all Australians to have
security of citizenship, the committee asks the minister to confirm the basis
and material upon which his decisions under proposed s 34AA would be exercised.
The committee draws the Commonwealth government's attention to Item 66
of Schedule 1 to the Bill and asks that the minister confirm the basis and
material upon which his decisions are to be exercised.
Revocation making children
The committee notes the perceived inconsistency between the Bill and the
EM on the question of whether the fraud of a third party could be used to
revoke a child's citizenship and thereby makes them stateless (s 34AA). The EM
suggests that it could not, but the Bill states that it could. The committee
suggests that the Bill should clarify the discretionary nature of the
The committee recommends that the Bill clarify the discretionary nature
of the minister's power to revoke citizenship under this provision.
Subject to this recommendation, the committee recommends that the Bill
Subject to the preceding recommendation, the committee recommends that
the Bill be passed.
Hon Ian Macdonald
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