A number of issues were raised by submitters about the Australian
Citizenship Legislation Amendment (Strengthening the Requirements for
Australian Citizenship and Other Measures) Bill 2017 (the bill) during the
inquiry. This chapter will outline the main issues as raised by submitters and
witnesses, which will be grouped into three key areas.
- Additional requirements for people seeking to
obtain citizenship by conferral:
four years permanent residence requirement;
English language skills test;
integration within the Australian community;
Australian Values Statement; and
pledge of allegiance.
- Additional powers provided to the Minister:
power to cancel approval for citizenship;
power to revoke a person's citizenship;
personal decisions of the Minister being excluded from merits
power of the Minister to set aside decisions of the
Administrative Appeals Tribunal (AAT); and
instrument making power.
- Additional requirements impacting children:
changes to the 10 year rule and citizenship by birth; and
good character requirement.
Finally, the committee's views will be discussed as well as its recommendations
on the bill.
Additional requirements for citizenship by conferral
On 20 April 2017 the Australian Government announced a package of
reforms to 'strengthen citizenship' which would take effect from the date of
These reforms would apply to people who apply for citizenship by conferral and
the general residence requirement;
an English language test;
introducing the requirement for applicants to demonstrate their
integration into the Australian community;
the Australian Values Statement;
strengthening the test for Australian citizenship; and
the pledge of allegiance.
In accordance with the announcement, items 136, 137 and 139 of the bill
outlines that the provisions are to apply retrospectively—from 20 April 2017.
The Explanatory Memorandum (EM) confirms that these provisions 'reflect the
announcement made by the Prime Minister and the Minister'.
The retrospective application of these provisions was raised as an area
of concern by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny
of Bills Committee) as well as a number of submitters.
The Scrutiny of Bills Committee explained that provisions that apply
retrospectively challenge a basic value of the rule of law and that it was
particularly concerned that the legislation may have a detrimental impact on
individuals. It sought further information from the Minister about the number
of persons likely to be affected by these provisions and whether it was likely
that applications had been made on or after 20 April 2017, but before the passage
of the bill, would not meet the criteria for eligibility for citizenship as a
result of the retrospective application of these amendments.
In response, the Minister noted that as of 16 July 2017, 47,328 people
had lodged an application on or after 20 April 2017 who would be affected by
Of these, it was estimated that 25,788 (54 per cent) would not meet the new residence
In relation to the competent English requirement, and the integration
requirement, the Minister advised that this would be a new requirement and as
such, the Department was not able to determine the number of people likely to
In relation to the new pledge of allegiance, the Minister stated:
An additional 429 applicants who have applied for citizenship
by application (conferral, descent, adoption and resumption) on or after
20 April 2017 over 16 years of age will be required to make the pledge of
allegiance who would not have been required to under the previous arrangements.
Whilst the additional requirement may increase the time it
takes these applicants to acquire citizenship it is not known how many of these
applicants would fail to make the pledge and therefore not meet the eligibility
requirements to become a citizen.
The Scrutiny of Bills Committee reiterated its concerns and noted that
it did not consider the retrospective application of the bill was adequately
justified given the detrimental effect it would have on a large number of
The committee notes that, regrettable as it is, this action of
'legislation by media release' is all too common in recent decades but for many
valid reasons has become a fact of life.
At a public hearing the committee heard of the effect that the
announcement had on individuals.
Dr Howard, of Fair Go for Migrants, noted that because applications have been
placed on hold, even if they bill did not pass, individuals have already been
directly affected. Another individual noted that applicants' lives were in a
state of limbo as they do not know which set of criteria will apply to them.
In addition, a number of submitters raised concerns that they had submitted
their application for citizenship after 20 April 2017 and paid a
'non-refundable' application fee, only to be told that their application was on
The Department of Immigration and Border Protection (the Department)
confirmed that since 20 April 2017 to 31 July 2017, it had received 50,940
These applications are currently not being processed but applications received
before 20 April 2017 are continuing to be processed. The Department also noted
that the average processing time for 90 per cent of citizenship applications is
13 months from the date of lodgement.
Permanent resident for four years
The proposed change to the residency requirement was raised by many submitters.
Currently, a person must be living in Australia for four years, with the last
12 months as a permanent resident, prior to being eligible to apply for
The bill proposes to increase the residency period to require a person to have
been a permanent resident for four years to satisfy the residency requirement.
The EM sets out the reason for the proposed amendment:
A residence requirement is an objective measure of an
aspiring citizen's association with Australia. This period allows a person the
opportunity to gain an understanding of shared Australian values, and the
commitment they must make to become an Australian citizen. It also allows them
time to integrate into the Australian community and acquire English language
skills required for life in Australia as a successful citizen. 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. For these reasons the National Consultation Report on citizenship
recommended increasing the permanent residency period to 4 years for the
general residence requirement.
The Department provided an international comparison of other countries'
residency requirements before being eligible to obtain citizenship.
In summary, the Department noted the following residency requirements:
Canada–three out of five previous years (where up to one year
under a temporary residence visa can be counted);
United Kingdom–five years plus one year (usually after the five
years) of being 'settled';
United States of America–five years;
Germany–eight years in general, however lesser periods apply
under certain circumstances;
Netherlands–five years; and
The Department concluded that the new residency requirements 'are
comparable with the low end of the scale of international standards'.
It also noted that the proposed requirement of residing in Australia as a
permanent resident 'is unlikely to have an impact on these humanitarian
migrants who first arrive in Australia as a permanent resident'.
A number of organisational submitters raised concerns that the proposed
amendment would not change the length of the residency requirement, but rather that
it would change 'the visa status required during residency'.
A joint submission from the Andrew & Renata Kaldor Centre of International
Refugee Law and the Gilbert + Tobin Centre of Public Law (Kaldor and Gilbert +
Tobin Centres) argued that while the stated reason for the proposed amendment
was to allow more time to assess a person's character, it would not necessarily
achieve this outcome.
This is because under the current framework, a person is required to be a
resident in Australia for at least four years before being eligible to apply for
citizenship, whereas the proposed provision would require a person to be a
resident in Australia for four years, albeit as a permanent resident.
The following case study was provided as an example of the difference in time a
person might spend in Australia prior to meeting the proposed residency
requirement, based on the individual's visa status:
...a non-citizen could apply offshore (i.e. from another
country) to enter and reside in Australia on a permanent skilled independent
visa (Subclass 189). This is a permanent visa, which would see the person meet
the general residence requirement after 4 years of living in Australia. Another
person could apply onshore for the same Subclass 189 visa after many years
living in Australia on a series of temporary visas (visitor, student, temporary
skilled), yet, if the proposed changes are passed, their years living in
Australia on those temporary visas would not count towards their residence
periods. The result is a perverse outcome whereby a person who has been in
Australia longer—and who potentially has built a stronger association to
Australia and made a significant contribution to our society—is penalised when
it comes to accessing citizenship.
The Department noted that:
The Australian Government contends that the Australian
community has higher expectations of permanent residents than temporary
residents, in terms of their integration into and contribution to the
Australian community. The Government considers that the increased length of the
qualifying period of permanent residency will enable it to make a thorough
examination of aspiring citizens’ experience of integrating into life in
Australia, before granting citizenship.
The University of Adelaide's Public Law and Policy Research Unit pointed
out that the visa status of a person does not affect their opportunity to integrate
into Australian society, but rather, placed people who have entered Australia
on a temporary or humanitarian visa at a significant disadvantage due to their
The Kaldor and Gilbert + Tobin Centres also raised concerns that the
bill was contrary to the spirit of Article 34 of the UN Convention Relating to
the Status of Refugees which 'requires state parties to facilitate assimilation
and expedite naturalisation proceedings for refugees as far as possible' and
consequently, citizenship is often the first effective and durable form of
protection for refugees and humanitarian entrants.
The submission concluded that, under the best of circumstances, a refugee would
be entitled to apply for Australian citizenship after residing in Australia for
seven-and-a-half years and that this period was 'well beyond what would be
considered best practice when it comes to facilitating naturalisation of
refugees and humanitarian entrants'.
Having said that, the committee notes the proposed rules are less strict than
in many other countries as set out in paragraph 3.13.
Most submissions from individuals also expressed concern about the
proposed changes to the residency requirements, and in particular that this
provision would apply retrospectively. Many accounts from individual submitters
noted the time they had spent in Australia, how they had integrated into
Australian society and that the proposed change would only prolong their
citizenship application while also placing them in a state of uncertainty about
their future. Many submitters asked that this particular section of the bill
not be passed, or alternatively, that the provision have a transitional period.
Below is an example of one such submission.
My wife and I have been proud to call
Australia home since moving to Sydney from the UK in 2011. I helped to set-up a
successful business advisory firm, helping Australian businesses to succeed
locally and internationally and providing employment to Australians. My wife,
[redacted], is a filmmaker and charity sector worker. Recent initiatives
include working with the team at [redacted], a charity that supports the most
vulnerable Australians. For my sins, I'm a paid up Sydney Swans member.
Having lived in Australia for over 5
years and as Permanent Residents, we were entitled to apply for citizenship on
15th December 2016. At the time that our entitlement date came
around, my wife was 5 months pregnant. We decided to focus our time and energy
on ensuring all was set-up for our baby. After all, we were certain in the fact
that we would be able to apply when our baby was safely home.
On April [redacted] 2017, my daughter
[redacted] was born at The Royal Hospital for Women, Randwick. Our beautiful,
Australian, daughter. Advance Australia Fair.
Two short weeks of paternity leave and
I find myself back in the office. Two short weeks. I am greeted with the news
that despite being fully entitled to apply for citizenship just a day ago,
despite having an Australian daughter, despite employing Australians, despite
helping Australian business to succeed to a global scale, despite advocating
for friends and family to visit Australia, despite being upstanding members of
the community, despite starting our application months earlier... Despite all of
this we are told that Australia must be tougher on us. That we are to be
watched. That we must prove ourselves further. That whilst our tax dollars
count, our voices do not. That we are not even entitled to be second class
Impact on tertiary students
Another issue raised by a number of submitters and witnesses was the effect
the increased residency period would have on tertiary students.
The Law Council of Australia (Law Council) explained that the Higher Education
Support Legislation Amendment (A More Sustainable, Responsive and Transparent
Higher Education System) Bill 2017 (the Higher Education Bill) was currently
before the House of Representatives.
Currently, permanent residents are entitled to a Commonwealth supported place
for their university education. However, if the Higher Education Bill passes,
most permanent residents will no longer be entitled to a Commonwealth supported
place, which will mean substantially higher fees for these students.
The combined effect of extending the residency requirement with the Higher
Education Bill will mean that students who may have thought that they would
soon be eligible for a Commonwealth supported place would no longer qualify as
Australian citizens, however, in the fullness of time they would clearly be
eligible for all the benefits available to an Australian citizen.
While the Law Council acknowledged that the Higher Education Bill would also
allow permanent residents to access student loans, it concluded:
...the combination of the proposed reforms in the Higher Education
Bill and the increased residence requirement may operate to reduce the
opportunities for migrants to pursue tertiary education and, having done so,
make a valuable contribution to the Australian community.
The committee acknowledges the compelling evidence from submitters and
witnesses who have made plans for the future, including significant financial
commitments, based on the current residency requirements and other legislative
frameworks. The committee is of the view that the Government should consider
introducing transitional provisions for those people who held permanent
residency visas on or before 20 April 2017, so that the current
residency requirements apply to this cohort of citizenship applicants.
English language test
The bill seeks to amend the English language requirement so that the
Minister must be satisfied that an applicant has 'competent English' as opposed
to the current requirement of 'possesses a basic knowledge of the English
'Competent English' is not defined in the Act, however, proposed paragraph
21(9)(a) of the bill provides that the Minister may make a legislative
instrument that determines the circumstances in which a person has 'competent
English'. The EM provides an indication of what the Minister's determination
This determination will enable the Minister to determine, for
example, that a person has competent English where the person has sat an
examination administered by a particular entity and the person achieved at
least a particular score. The Minister could determine that the person must
have completed this examination within, for example, three years ending on the
day the person made an application for citizenship. The determination could
specify other circumstances in which a person has competent English, for
example, if they are a passport holder of the United Kingdom, the Republic of
Ireland, Canada, the United States of America or New Zealand or through
specified English language studies at a recognised Australian education
The EM also sets out the rationale for this amendment:
This amendment reflects the Government's position that
English language proficiency is essential for economic participation and
promotes integration into the Australian community. It is an important creator
of social cohesion and is essential to experiencing economic and social success
The Department explained that the current English language requirement
is for 'basic' English which is the equivalent of an International English
Language Testing System (IELTS) 4 test score.
Further, the English language is currently assessed by applicants passing the
multiple choice citizenship test.
A number of submitters and witnesses questioned the evidence relied upon
by the Government as the basis for the change as proposed by the bill.
For example, Professor Alexander Reilly from the Public Law and Policy Unit
from the University of Adelaide questioned the impartiality of the
consultations and consequently the legitimacy of relying on the results of the
consultation as the basis for the proposed changes to citizenship legislation.
The Forum of Australian Services for Survivors of Torture and Trauma (FASSTT)
noted that the recommendation in the final report of the National Consultation
on Australian Citizenship was for the Government to improve the Adult Migrant
English Program (AMEP) and for new citizens to have 'adequate' English language
However, it was submitted that the bill requires 'competent', as opposed to
'adequate' English, and that no justification for the change had been put
The Scrutiny of Bills Committee raised concerns that 'competent English'
was not defined in the Act or the proposed bill, and sought further
clarification from the Minister about the level of English that an applicant
would be required to demonstrate to satisfy the new requirement.
In response, the Minister provided the following explanation:
The Government announced that applicants must provide results
of an approved English language test at competent level in listening, speaking,
reading, and writing skills. This is comparable to an International English
Language Testing System score of 6 or the equivalent score from a test accepted
by the Department. This is consistent with the current 'competent English' test
score requirement in the Migration Regulations 1994 (the Migration
In relation to the Scrutiny of Bills Committee's concerns that competent
English was not defined in primary legislation, the Minister stated:
The Government considers it appropriate to set out the
technical details of the level of English language required in a legislative
instrument. This gives the Minister the opportunity to determine particular
circumstances such as the approved test providers and test scores. It also
provides the Minister flexibility to update the instrument in instances where,
for example, there is a change in the approved test providers, without going
through the legislative amendment process.
This instrument that will be made to set out the detail of
the English language requirement will be subject to scrutiny and disallowance
when it is tabled in the Parliament. This approach mirrors the definition of
'competent English' in regulation 1.15C and the 'Language Tests, Score and
Passports 2015' instrument in the Migration Regulations.
During public hearings there was some discussion about what 'competent'
English would equate to. As outlined above, the Minister has indicated that it
will be comparable to an IELTS 6 score.
The Department notes that the IELTS offer a general or academic test, and that
there is a difference in the reading and writing modules.
However, at a public hearing Professor Catherine Elder of the Language Testing
Research Centre at the University of Melbourne stated that the academic IELTS
test and the general IELTS test both report performance on the same scale.
Professor McNamara, a linguistic expert at Melbourne University, said 'the
tasks are different but the standard required is the same'.
The Australian Council of TESOL Associations (ACTA) noted that the
proposed level of IELTS 6 was higher than the literacy levels of more than one
quarter of the general Australian population and that according to figures
obtained in 2012–13, at least seven million Australians were below the IELTS 6
It concluded that for a migrant to move from the basic level of IELTS 4 to the
IELTS 6 'is virtually impossible without extensive English tuition' and '[f]or
adults with limited educational backgrounds, it is generally impossible'.
The University of Melbourne's Language Testing Research Centre referred to the
proposed level as 'unreasonably high'.
Evidence from witnesses also noted that competence should be considered
in light of the purpose of the skill. As explained by ACTA:
Competent English in the famous Victoria markets in Melbourne
or the Sydney Fish Market is quite different from what counts as competent for
a lawyer in an Australian courtroom, a real estate agent auctioning a property
or a politician in Parliament. Many nursing staff in retirement communities are
quite competent in spoken English, reading medicine labels, completing
hand-over reports and maintaining patient records. However, their reading and
writing in English may easily not be what is labelled "competent" in
Most submitters and witnesses agreed that achieving adequate English
language skills was important for integration. For example, the Kaldor and
Gilbert + Tobin Centres agreed that English proficiency is something which
aspiring citizens should strive for and that it is a necessary skill in order
to become part of the wider community.
However, it argued that the language test should not be used as a tool to
exclude people and that the proposed English language test would be unfair and
unreasonable, especially for the humanitarian and refugee cohort.
As explained by Mr Peter Mares at a public hearing, the majority of
migrants arriving in Australia are skilled migrants and international students
whose level of English is already tested.
However, the cohort of migrants that this provision would affect includes
individuals arriving in Australian on a humanitarian program, partners of
Australia citizens or partners of permanent residents, or secondary visa
holders such as the partner of a primary applicant for skilled migration.
However, the Department noted that applicants would have at least four
years to develop their English ability and noted the services available to
The Government recognises the particular challenges for
refugees and humanitarian entrants. There is a range of Settlement Services and
English language, literacy and numeracy programmes available for such
vulnerable migrants to access. Technical colleges and other English language
courses and programmes are also widely available.
Additionally, the Department stated that in July 2017 the Government had
introduced a new business model for AMEP whereby people who had not attained
functional English after completing the legislated entitlement of 510 hours,
may be able to access an additional 490 hours of tuition.
A number of witnesses endorsed education-based methods to assess a
person's English skills, rather than having a stand-alone English language
Dr Michelle Kohler from the Applied Linguistics Association of
Australia noted that there were two alternatives—an achievement oriented test
or an achievement oriented assessment.
Dr Kohler explained the difference between the two tests:
The achievement based test is one that attempts to capture
performance based on a clearly defined language learning program that precedes
the test. The test is designed in close relation to a specific learning program
that recognises the authentic and real-world contexts and purposes for
learners' language use. For the current purpose that we're talking about here,
the current context, such a program would focus on communication demands in the
workplace and in community settings. In this way, the test has greater
validity, as it would be designed to capture everyday communication experiences
and would integrate the four skills—listening, speaking, reading and writing—in
more authentic ways, rather than disaggregate them as some commercial tests do.
In my view, it is also fairer in that the content is somewhat known to the test
takers and is not too distant from the preparation course. So there are no...surprises
for them that might trip them up.
At the end of the day, a test is a one-off performance. It
may not adequately represented what a person can do both in a range of contexts
and over time. Hence, another possibility is an achievement-oriented assessment
that does not have a test as the end point but aims to capture performance on a
range of tasks. Examples of this include portfolios, where a number of tasks
may be set and completed over time.
Ms Annie Brent from ACTA noted that an example of such a course, which
is now no longer being used, was a course developed in 2000 called 'Let's
The course was designed as a 20 hour module to be taught within the AMEP;
consisted of workbooks, videos, CD-ROMS as well as fact sheets in 26 languages.
Some submitters explained that English language is currently tested in
the Citizenship test and indicated that while the current legislation only
requires the applicant to possess a 'basic' level of English, completion of the
Citizenship test requires more than basic ability.
Professor Rubenstein noted that the current level of English being tested is
equivalent to year 12 English and argued that the current arrangement works
well and should not be changed.
Professor Helen Moore from ACTA explained the reasons why the current test is
The reason the current test is fair enough, as it were, is
that it allows what's known in the trade as accommodations. So, if you don't
have good literacy skills and if you don't have good computer skills, there are
ways in which you can take that test orally, so someone will read the question
to you. The other reason that test is good enough is that people can study for
it. You can read the book, you can do the trial test.
The committee notes the evidence provided to the inquiry, and notes that
much of it is based in witness expectations of what the test might be, which
the committee does not necessarily accept. However, the committee does believe
that there is a need for greater certainty in either the legislation, the EM or
the relevant regulations. The committee does not necessarily expect that the
English language standard should be at university entrance level.
The committee accepts evidence that many worthwhile would-be Australian
citizens would be excluded by these rules, and committee members know from
their own experience that many current Australian citizens would never have
passed a higher standard English language test such as the one some witnesses
are suggesting will be applied. The committee agrees that a good understanding
and use of the English language is essential in order to enjoy the benefits,
and fulfil the obligations, of Australian citizenship. The committee cautions,
however, against the adoption of a standard that many current citizens could
In addition to the new English language test, the bill also proposes to
introduce a new citizenship test. Currently, the Minister can make a
determination as to the eligibility criteria for sitting the citizenship test.
Proposed subsection 23(3A) provides examples of what the determination may
cover, including that the eligibility criteria may relate to the fact that a
person has previously failed the test, did not comply with one or more rules of
conduct relating to the test, or was found to have cheated during the test. The
EM provides the further details in relation to the proposed change:
At present applicants are able to sit the citizenship test an
unlimited number of times. Not only does this reduce the integrity of the
testing arrangements but is also administratively and financially burdensome
for the Government. A person who repeatedly fails the test does not meet the
eligibility requirements and should have their application refused. This
amendment will better support decision makers. Limiting the number of times a
person can take a test and imposing penalties for cheating on the test was a
recommendation from the National Consultation on Citizenship and had strong
community support. New subsection 23A(3A) makes clear that the Minister may
determine, for example, that a person who fails the citizenship test three
times is not eligible to re-sit the citizenship test. Another example would be
where a person is found to have cheated during the test. In this circumstance,
the Minister is empowered to determine that the person is not eligible to
re-sit the test.
The Department noted that the number of people who pass the current
citizenship test on first attempt is high because many applicants are skilled
The Department confirmed that a limit of three tests would be imposed whereby
applicants who fail the test three times would be barred for two years from
making a further application for citizenship.
The Department provided the following figures in relation to attempts to pass
the citizenship test:
Over the past three programme years (2013-2016), the highest
number of test attempts by a single applicant was 47 times. Over the same
period, 1830 applicants attempted the test 11 or more times and 15,401
applicants attempted the test three or more times. In 2015-2016, 102,029 people
sat the citizenship test and 3447 people failed the citizenship test more than
The Law Council argued that there should not be a limit imposed on the
number of times a person can sit the citizenship test noting that it was 'not
clear how these proposed limitations could advance any of Australia's
objectives under its migration and citizenship programs'.
In relation to the Department's comments about the administrative and financial
burden on the Government to allow a person to repeatedly re-sit a test, the Law
Council suggested that the Department could potentially consider additional
fees provided the cost is not prohibitive and still includes a concession rate.
Finally, if the concern was in relation to keeping a citizenship application
open indefinitely, the Law Council suggested that the order could be reversed
so that a person could be required to pass the citizenship test before they are
able to lodge an application for citizenship.
Other submitters such as the Australian Lawyers Alliance referred to the
proposed three-test limit as 'unduly harsh'.
The University of Melbourne's Language Testing Research Centre noted that
'repeated attempts to pass the test...are more likely to be a measure of
determination to become a full voting member of Australian society, than an
indication of any fundamental incapacity or unsuitability'.
However, the Department made the important point that:
A person who fails to meet the requirements for citizenship
will remain a permanent resident unless their conduct results in the
cancellation of their visa under the Migration Act 1958.
Notwithstanding this the committee feels that there is some merit in the
suggestions of the Law Council, the Australian Lawyers Alliance, and the
University of Melbourne's Language Testing Research Centre, and suggests to the
Government that it would be worth considering allowing additional tests on a cost-recovery
basis for applicants who are not able to pass the citizenship test in three
Integration within the Australian
Proposed paragraph 21(2)(fa) introduces a new criterion to the general
eligibility for Australian citizenship by conferral—that the Minister is
satisfied that the person 'has integrated into the Australian community'.
Proposed paragraph 21(9)(e) states that the Minister may determine by
legislative instrument the matters to which the Minister may or must have
regard when determining whether a person has integrated into the Australian
community. The EM outlines that such a legislative instrument could have regard
to a person's employment status, study being undertaken by the person or the
person's children, involvement with community groups, or, conversely, that the
person's conduct that is inconsistent with the Australian values, including
The Scrutiny of Bills Committee noted that the question of whether a
person has integrated into the Australian community is not a technical question
but rather one of substantive policy and therefore should not be broadly
delegated to the executive branch of Government.
The Scrutiny of Bills Committee suggested that it would be more appropriate for
the bill to be amended to provide guidance in the primary legislation as to
what is meant by 'has integrated into the Australian community' and how this
criterion should be applied.
The committee tends to agree with this approach. The committee notes
that the current Minister may not always be the decision-maker and believes
that some legislative guidance may be necessary.
A number of organisational submitters raised similar concerns—that the
discretion vested in the Minister to determine matters by legislative
instrument was too broad.
Some submitters objected to the Government placing too much emphasis on linking
integration with employment. The Law Council warned that refugee or
humanitarian entrants may be disadvantaged for a variety of reasons and concluded
that this requirement 'may further discourage migrants from applying for
citizenship by making the criteria administratively overwhelming and uncertain,
with potentially negative consequences'.
Anglicare Sydney provided the following explanation:
We have particular concerns for vulnerable migrants and
refugees who may not be able to demonstrate this defined type of community
integration across their period of residence in Australia. We refer to those
people who have experienced one or more of the following pre-arrival factors:
disrupted or no formal education; trauma or torture through persecution and war
or conflict; periods of time in refugee camps and in transit fleeing war and
conflict; family unit separation; and loss of immediate family members.
Further, significant post-arrival factors which should be considered in a
person’s capacity to integrate in these ways include: primary caregiving roles
in the family unit; language barriers; physical and mental health issues,
especially for refugees; long periods of separation from immediate family
members; protracted and complex visa processes; periods of time in immigration
detention; and difficulty in having previous qualifications and employment experience
recognised in the Australian context. As previously discussed, each individual
and family’s trajectory in their settlement years in Australia is unique and
Australian Values Statement
Proposed subsection 46(5) provides that the Minister may determine an
Australian Values Statement and any requirements relating to the Statement. The
EM states that the Minister may, for example, 'determine the text of the
Australian Values Statement and determine that the statement must be read,
understood and signed by an applicant'.
Proposed subsection 46(6) of the bill notes that a determination under proposed
subsection 46(5) is a legislative instrument, however, it will not be subject
to disallowance. The justification for the Australian Values Statement to be
exempt from disallowance was outlined in the EM:
The instrument provides the wording of the Australian Values
Statement that an applicant must sign to make a valid application for
citizenship. This aligns with the process for a visa application under the
Migration Act which many applicants will have already signed as part of their
visa application process. 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.
The Scrutiny of Bills Committee argued that matters that go 'directly to
the substance of citizenship and policy' would appear to be matters that are
appropriate for parliamentary oversight.
Also, while the EM argues that by putting the determination of the Australian
Values Statement under executive control provides certainty to applicants,
certainty could equally be provided by increasing parliamentary oversight of
this matter rather than including it in a legislative instrument that was not
subject to disallowance.
These concerns were also shared by a number of submitters.
The Australian Multicultural Council supported the inclusion of an Australian
Values Statement provided it was consistent with the core values articulated in
the Australian Government's new multicultural statement, Multicultural
Australia: united, strong, successful.
These values include 'equality of opportunity, equality between men and women,
rule of law, support of parliamentary democracy, and acknowledgement of basic
freedoms and civil liberties, including protection of minority rights'.
While the Multicultural Council supported the proposed new requirement for an
Australian Values Statement, it suggested that 'sensible guidelines and
supports are developed' and that 'new requirements are not onerous to the point
of becoming a deterrent'.
Pledge of allegiance
Proposed section 32AB requires a person over the age of 16 to make a
pledge of allegiance (currently referred to as the pledge of commitment) to
become an Australian citizen. Exemptions apply where the person has a permanent
or enduring physical or mental incapacity that makes them incapable of taking
the pledge (proposed paragraph 32AB(1)(b)). Additionally, proposed section 32AB
provides the Minister the power to issue a written determination preventing a
person making the pledge of allegiance for up to two years under three
the Minister is satisfied that the person's visa may be cancelled;
where the Minister is satisfied that the person has been or may
be charged with an offence under Australian law; or
where the Minister is considering cancelling a person's visa
under specified sections of the Act.
A number of submitters noted their support for the proposed changes
relating to the pledge of allegiance.
For example, the Australian Multicultural Council stated that it 'supports this
amendment as it makes explicit the expectation that aspiring citizens make a
strong commitment of allegiance to Australia'.
In relation to potential delays to an applicant taking the pledge, the
Kaldor and Gilbert + Tobin Centres reflected on research conducted by the
Refugee Council of Australia which concluded that refugees subject to
citizenship delays experience 'high levels of stress and anxiety', 'suffer
extreme helplessness and despair', and that the delay caused 'acute and severe
The Kaldor and Gilbert + Tobin Centres concluded:
In light of these impacts, stronger justification for the
need to increase the maximum length of delays is required, as well as some
mechanism via which to ensure that the ministerial power to impose delays is
exercised in a manner that is proportionate to the circumstances that trigger
It is our recommendation that before any increase to the
maximum length of delays is enacted, the Minister should provide to the
Parliament a detailed explanation about how often, and in what circumstances,
the current maximum period of 12 months is insufficient. Based on this
evidence, 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.
Other concerns raised by submitters relating to the pledge include:
the term 'allegiance' being an outdated concept and that terms
currently used such as 'loyalty' and 'commitment' are more accessible and more
widely understood terms, as such, the pledge should not be amended;
that Australian-born citizens are not required to make the same
pledge of allegiance which suggests there was 'considerable room for improving
the civic literacy of Australian-born citizens';
that the pledge should be to 'Australia's sovereign head of state',
the Queen of Australia.
The committee makes no comment on most of these submissions, but is not
persuaded that the Government’s proposal is wrong. The committee does, however,
agree with the view provided at dot point two that the civic literacy of many
existing Australian citizens could do with some improvement.
Additional powers of the Minister
Minister's power to cancel approval
The bill proposes to provide the Minister with additional powers to
cancel the approval for citizenship by conferral under two circumstances: where
the Minister is satisfied that approval should not be granted due to identity
or national security grounds (proposed subsection 25(1A)); and where the person
otherwise fails to meet the eligibility criteria for citizenship (proposed
subsections 25(1) and 25(2)).
A number of submitters raised concern with the second area of cancelation—where
the person otherwise fails to meet the eligibility criteria. The Kaldor and
Gilbert + Tobin Centres noted that the proposed provision, in combination with
the proposed expansion of ministerial discretion in respect of the eligibility
criteria for those who apply for citizenship by conferral, was particularly
As an example of how these discretions interact, the
Minister, under proposed s 21(2)(fa), may look holistically at the question of
whether an applicant has 'integrated' into the Australian community. The Bill
provides no guidance about how this ministerial power will be exercised, and,
indeed, the Minister is not required to develop guidelines that clarify this.
Where the Minister determines that the applicant has integrated into the
community, and that all other eligibility requirements have also been met,
there still remains a ministerial discretion to refuse to approve the person
for citizenship. The effect of the proposed ss 25(1) and 25(2) is that, even
after the Minister decides to approve a person’s application for citizenship,
they may continue to monitor the person up until the day of their citizenship
ceremony, and may retract approval for citizenship if they form the view that
integration is no longer present.
Minister's discretion to revoke
In addition to the Minister's proposed power to cancel approval of a
person's citizenship, the bill also proposes to provide the Minister with the
discretion to revoke a person's citizenship based on two grounds: where the
Minister is satisfied that the approval should not have been given to the
person because the requirements of the Act had not been met (proposed section
33A); or where the Minister is satisfied that the person became an Australian
citizen as a result of fraud or misrepresentation (proposed section 34AA).
Revocation if requirements of Act
Section 16 of the Act covers citizenship by descent and allows a person
to make an application for citizenship if they were born outside of Australia
but a parent was an Australian citizen at the time of the person's birth and
the Minister is satisfied that the applicant meets a number of requirements
outlined in the Act. The Minister's decision to approve or refuse an
application under section 16 is made under section 17 of the Act.
Proposed section 33A of the bill provides the Minister with the
discretion to revoke a person's citizenship if it was acquired by virtue of
section 17 of the Act and if the Minister is satisfied that the approval should
not have been given. Proposed subsection 33A(2) provides that the Minister
cannot revoke a person's citizenship if the revocation would result in the
person being stateless. Proposed subsection 33A(3) notes that the person ceases
to be an Australian citizen at the time of the revocation.
The EM notes that the purpose of the amendment is to allow the Minister
to take into account the circumstances of a particular case, such as the length
of time that the person has been a citizen and the seriousness of any character
In response to concerns raised by the Scrutiny of Bills Committee in
relation to an identical provision in the 2014 bill, the Minister stated:
It is not necessary to place a time limit on the exercise of
the power because the discretionary nature of the decision means that issues
such as the length of time that the person has been a citizen, and the seriousness
of any character concerns, would be taken into account. In addition, the
revocation would take effect from the time of decision on revocation rather
than from the date of the decision to approve the person becoming an Australian
citizen. This means that the person's status in the intervening period will not
A number of submitters were also concerned that the Minister was
provided a broad discretionary power with no legislative guidance on the
circumstances in which the Minister may decide that approval should not have
The Kaldor and Gilbert + Tobin Centres explained how lack of legislative guidance
could potentially create uncertainty:
The possibility that the provision may be read in a way that
empowers the Minister to change what constitutes a person of good character
retrospectively also raises the prospect that persons who gain citizenship by
descent may be subject to changing standards. Further, while the Minister may
exercise his or her discretion not to exercise this power if a long time has
passed since the person attained citizenship, there are no time limits imposed
on the Minister's power to exercise his power under proposed s 33A. This
exacerbates the potential uncertainty faced by persons who gain citizenship by
... We do not believe that a person's right to citizenship by
descent should be disturbed because the Minister subsequently believes they 'got
it wrong'. Grounds for revocation on such broad terms may potentially give rise
to a situation where a citizen or class of citizens is under ongoing scrutiny.
The committee does not share these concerns and appreciates that in
these times of heightened security environments, situations may arise that
would not previously have been apprehended.
Revocation due to fraud or
New section 34AA of the bill provides that the Minister may revoke a
person's citizenship if the Minister is satisfied that the citizenship was
approved as a result of fraud or misrepresentation. The fraud or
misrepresentation must have been connected with the person's Australian citizenship
approval, the person's entry to Australia prior to citizenship approval, or the
grant of a visa or permission to enter and remain in Australia prior to the
citizenship approval (proposed paragraph 34AA(b)). Additionally, the Minister
must be satisfied that it would be contrary to the public interest for the
person to remain an Australian citizen (proposed paragraph 34AA(c)). The fraud
or misrepresentation may have been committed by 'any person' and need not have
constituted an offence (proposed subsection 34AA(2)), however it must have
occurred during the 10 year period prior to the day of revocation (proposed
subsection 34AA(3)). Subsection 34AA(4) notes that 'the concealment of material
circumstances constitutes a misrepresentation', and subsection 34AA(5)
specifies that the person ceases to be an Australian citizen from the time of
the revocation. The EM also outlines that a note to the new section, which
provides that a child of the person who has had their citizenship revoked,
would also cease to be an Australian citizen at the time of their parent's
citizenship being revoked.
The Department stated:
a conviction for a specified offence is required before a person's citizenship can be revoked. In
light of competing priorities, there are often limited resources to prosecute all but the most serious
cases relating to migration and
In addition, the conviction must be under Australian law, which in turn requires the person’s presence in Australia.
Because of these considerations
and the time it can
take to establish a conviction, the power to revoke a person's citizenship on the basis of a conviction for a
fraud-related offence has only been used
ten times since
1949, even where the evidence of fraud is strong.
Some submissions from legal organisations raised concerns with this
proposed section. The Law Council argued that, given the serious consequences,
revocation of citizenship should be subject to independent review.
Further, that revocation due to fraud or misrepresentation should require a
criminal conviction and that the suspicion or belief of the Minister or their
delegate should not be sufficient.
Legal Aid NSW noted that the proposed provision placed too much power with the
executive and that the precondition of a conviction prior to the revocation of
citizenship would ensure that the decision is made on objective grounds.
Refugee Legal (formerly the
Refugee and Immigration Legal Centre) referred to the proposed provision
as 'a significantly lower standard premised on a "more likely that
not" level of satisfaction by a public servant is deeply concerning'.
Refugee Advice and
Casework Service (RACS), argued that the proposed provision 'degrades the value
of Australian citizenship by treating it like a visa, even for Australian
citizens born in Australia'.
It noted that the bill would have the effect of entrenching citizenship by
conferral as a second class of Australian citizenship, which is less secure
than that of other Australian citizens and perpetually subject to the risk of
revocation by the Minister.
consequence of the proposed provision, as noted by a number of submitters, was
the possibility that it may result in children being made stateless.
While the Australian Human
Rights Commission (AHRC) acknowledged that the EM noted the potential for a
child to be rendered stateless would be a factor to be considered, the AHRC
pointed out that the proposed provision does not contain a legislative
provision against statelessness.
Minister's decision excluded from
Item 126 of the bill seeks to add new subsection 52(4) providing
that certain decisions of the Minister, which are made in the public interest, would
be excluded from merits review.
The EM sets out the following reasons for this proposed changed:
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. As a matter of practice 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.
The committee agrees with and supports this statement.
Proposed subsection 52B(1) of the bill outlines that where the Minister
makes a decision that is not reviewable by the Administrative Appeals Tribunal
(AAT), the Minister is required to table in each House of the Parliament,
within 15 sitting days, the Minister's decision and the reasons for the decision.
The EM notes that the proposed subsection 52B(1) of the bill 'provides
transparency and accountability measures concerning personal decisions of the
Minister which are not reviewable by the Administrative Appeals Tribunal'.
The EM also notes that it remains open to a person to seek judicial review of
these decisions and that the exclusion of the Minister's personal decisions
from merits review was more in line with similar provisions under the Migration Act 1958.
Submitters also questioned the ambiguity of the term 'public interest'. Refugee
Legal outlined that the term 'public interest' has been determined by the High
Court to be a term which was 'difficult to give a precise content', and as
such, it noted that the Minister would be liable to exercise his powers in
accordance to his personal or political whim.
The Public Law and Policy Research Unit argued that Ministerial
decisions 'in the public interest' should be confined to discretionary
exercises of power that are beneficial to the person concerned, for example,
waiving the general residency requirement, not revoking citizenship, or setting
aside adverse AAT decisions.
The Australian Lawyers Alliance expressed the same view and argued that
Ministerial discretion should be limited to circumstances where merits and
judicial review options have been exhausted and the outcome remains unjust in
the view of the Minister.
The use of proposed section 52B, which requires the Minister to table a
statement setting out the Minister's decision within 15 sitting days, was
criticised as a deficient accountability mechanism for a number of reasons.
The Kaldor and Gilbert + Tobin Centres explained that proposed section 52B may
assist with transparency, but not with accountability as the consequence may be
that the Minister has to answer questions in Parliament, but not to review the
Secondly, the time period of 15 sitting days could mean that a significant
period of time elapses from the date of the decision to the date of the
Minister's statement being tabled in Parliament, which would result in the
immediacy of the consequence of the decision being lost.
The committee suggests that this approach ignores the realities of the
Minister's power to set aside
decisions of the AAT
New section 52A of the bill would provide the Minister the power to set
aside certain decisions of the AAT where the Minister is satisfied that it is
in the public interest to do so. The power would not apply to decisions to
revoke citizenship but can apply to decisions to refuse to approve
citizenship, or to cancel an approval for citizenship, where the delegate was
satisfied that the person was not of good character, or of the identity of the
person, where the AAT set aside the delegate's decision.
Where the Minister has set aside an AAT decision under the new section
52A, proposed subsection 52B(3) would require the Minister to table a statement
in both Houses of Parliament within 15 sitting days, which sets out the AAT's
decision, the decision made by the Minister, and the reasons for the decision.
The EM notes that this 'ensure[s] that such decisions remain transparent,
accountable and open to public comment'.
In setting out the reasons for the proposed amendment, the EM notes
three decisions of the AAT which were 'outside community standards' because the
AAT had found that people were of good character despite one having been
convicted of child sexual offences, another of manslaughter and the third of
The EM notes a further three cases where the AAT found people to have been of
good character despite having committed domestic violence offences.
Finally, the EM states that there is potential for some of the AAT's decisions
on identity grounds 'to pose a risk to the integrity of the citizenship
Concerns in relation to this proposed power were raised by a significant
number of organisational submitters, for largely the same reasons as put
forward by submitters opposed to proposed section 52(4).
The Committee however supports the Government's view that Ministers are
ultimately responsible to the Australian people whereas both the AAT and the
AHRC are accountable to no one.
Broad instrument making power of
New subsection 54(2) provides that 'the regulations may confer on the
Minister the power to make legislative instruments'. The EM states that this
will enable the Minister to make legislative instruments under the Regulations
relating to, for example, the payment of citizenship application fees in
foreign countries and currencies. The rationale for the proposed amendment was
explained as follows:
It is appropriate for this instrument making power to be in the
Regulation because it is the Regulation which address issues such as setting
the fees to accompany citizenship applications (see Regulation 16).
Parliamentary scrutiny would be maintained because the legislative instrument
would be disallowable.
The Scrutiny of Bills Committee acknowledged that, while it was not
controversial to use delegated legislation in technical and established
circumstances such as the payment of fees, '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
It was the view of the Scrutiny of Bills Committee that the primary Act, rather
than the regulations, should provide a power to make delegated legislation.
The Scrutiny of Bills Committee explained that the effect of the regulations
conferring a power to delegate legislation would be to provide the Minister
with a wide power for unspecified purposes.
This concern was also shared by the Kaldor and Gilbert + Tobin Centres.
The Scrutiny of Bills Committee noted that it raised these same concerns
in relation to an identical provision within the 2014 bill and that the
following explanation was provided in response:
...while it would be possible to limit the Minister's power to
make further delegated legislation to specified matters in the Citizenship Act,
it was not necessary to do so as the (now) Legislation Act 2003 provides
that any instrument made under the Regulations would be read so as not to
exceed the authorising powers in the Act and the Regulations.
Additional requirements impacting children
Citizenship by birth
Currently, a child born in Australia will automatically become an Australian
citizen once they turn 10, provided they are ordinarily resident in Australia.
This provision applies regardless of whether the child's parents are Australian
citizens. The bill proposes to limit the automatic acquisition of Australian
citizenship by birth so that the 10 year rule will no longer apply under the
if during the 10 year period a parent of the person had
diplomatic privileges or immunities under relevant legislation (proposed
if at any time during the 10 year period the person was an
unlawful non‑citizen (proposed subsection 12(4));
if at any time during the 10 year period, the person did not hold
a valid visa permitting them to travel to, enter and remain in Australia
(proposed subsection 12(5)), unless the person was a New Zealand citizen
(proposed subsection 12(6));
if the parent of the person did not hold a substantive visa at
the time of the person's birth and was an unlawful non-citizen at any time
between that parent's last entry into Australia and the person's birth
(proposed subsection 12(7)); or
if the person was found abandoned in Australia and it is proved
that the person was physically outside Australia before they were found
abandoned in Australia, or born in Australia to a parent who is not a citizen
or permanent citizen at the time of the person's birth (proposed subsection
Sub-item 135(2) of the bill provides that these amendments would apply
in relation to a 10 year period that ends on or after the commencement of the
item, whether the birth occurred before the commencement. Sub-item 135(3) of
the bill clarifies that in relation to a birth that occurred before the
commencement of the bill, the amendments would apply to any part of the 10 year
period. As such, this provision would operate retrospectively. It is noted that
an identical provision was proposed in the 2014 bill.
The EM outlines the rationale for these proposed amendments:
Collectively, the amendments made by this item seek to
encourage the use of lawful pathways to migration and citizenship by making
citizenship under the '10 year rule' available only to those who had a right to
lawfully enter, re-enter and reside in Australia throughout the 10 years.
In relation to these provisions the Department noted that:
The changes to the 10-year rule do not prevent a person
applying for citizenship by a conferral process. Also, a stateless person may
apply for citizenship at any time. Consequently, this measure does not trespass
unduly on personal rights, nor does it impact on the individual's liberty or
A number of submitters raised concerns with how this provision would affect
three particular categories of children, namely children of asylum seekers and
refugees, children of parents who overstayed their visas, and children found abandoned.
Children of asylum seekers and
The AHRC submitted that, by virtue of proposed subsection 12(4),
children of parents who are in immigration detention or community detention
when the child is born would no longer automatically qualify for citizenship
when the child turns 10.
This would also be the case for a child of parents who arrived in Australia as
unlawful non-citizens, were released from immigration detention into community
detention on bridging visas, and the child was born while the parents held a
The AHRC noted that in both cases, even if the parents of the child had
been found to be refugees and granted protection visas, and the child had been
lawfully in Australia for their entire life up to the age of 10, the child
would not be entitled to citizenship under the 10 year rule.
In other words, under the proposed sections the child's eligibility for the
automatic acquisition of citizenship would be denied on the basis of the
parents' immigration status.
These concerns were shared by the Kaldor and Gilbert + Tobin Centres
which noted that the proposed amendments 'present a particular risk for
children of asylum seekers'.
The Kaldor and Gilbert + Tobin Centres explained that the combined effect of
this proposed amendment with the reintroduction of temporary protection visas
in 2014 would make it very difficult for children of asylum seekers who arrived
in Australia by boat to obtain citizenship.
The Public Law and Policy Research Unit also expressed their concern and
reiterated the comments they made in relation to this provision of the 2014
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.
Both the Law Council and the AHRC expressed the view that these
provisions may be in contravention of the Convention on the Rights of the Child
Article 7(1) of the CRC, as well as article 24(3) of the International Covenant
on Civil and Political Rights (ICCPR), states that every child has 'the
right to acquire a nationality'. The AHRC acknowledged the comments made by the
UN Human Rights Committee that the provision 'does not necessarily make it an
obligation for States to give their nationality to every child born in their
However, the UN Human Rights Committee also state that:
...there should be no discrimination in accessing citizenship,
for example, based on whether children are legitimate or based on the
nationality status of one or both of the parents.
Children of parents who overstayed
The second category of children identified by the AHRC who would be
negatively affected by the proposed changes to the 10 year rule are children of
parents who arrived in Australia lawfully but subsequently overstayed their
visas and became unlawful non-citizens at any time prior to the child's tenth
The Kaldor and Gilbert + Tobin Centres argued that these proposed
amendments were inconsistent with the rationale underpinning the 10 year rule:
Regardless of their immigration status or the immigration
status of their parents, any child who has resided in Australia for the first 10
years of their life is immersed in Australian culture, shaped by Australian
relationships and education, and likely to have little to no substantive
connection with any country besides Australia.
The Kaldor and Gilbert + Tobin Centres noted the motivation provided for
these amendments as outlined in the EM, is to address concerns that the 10 year
rule encouraged temporary residents and unlawful non-citizens to have children
in Australia and keep their child in Australia whether lawfully or unlawfully,
until at least their tenth birthday.
However, a number of submitters noted that there appeared to be insufficient
evidence that the 10 year rule was being abused.
The Law Council went further and stated the following:
It is the experience of our members that this deemed grant of
citizenship arises in only a modest number of situations per year and almost
without exception in the situation where the child has been unlawful for all or
most of their short lives. It is the opinion of the Law Council that this very
long standing provision serves a very important public policy objective in
protecting the interests of vulnerable children. As currently drafted, the Bill
would remove the benefit of this provision from the children in actual need of
this legislative protection and instead in essence only leave the provision
open to children who in effect have little need of it.
Children found abandoned in
Currently, a person who is found abandoned in Australia as a child is an
Australian citizen unless the contrary is proved.
The bill proposes to repeal this section and amend it to clarify that a child
found abandoned in Australia is presumed to be born in Australia to a parent
who is an Australian citizen or a permanent resident at the time the child is
born (proposed subsection 12(8)). This presumption applies unless and until it
is proved that the child was physically outside Australia before being found
abandoned in Australia, or born in Australia to a parent who is not a citizen
or permanent citizen at the time of birth (proposed subsection 12(9)).
The United Nations High Commissioner for Refugees (UNHCR) raised
concerns with proposed paragraph 12(9)(a) of the bill noting that it may result
in a child being stateless.
The UNHCR explain that under article 15 of the Universal Declaration of Human
Rights, each individual has a right to nationality.
Furthermore, that the purpose of the 1961 Statelessness Convention, to which
Australia is a State Party, is to prevent and reduce statelessness.
The UNHCR noted that articles 1 to 4 of the Convention specifically concerns
the acquisition of nationality by children who would otherwise be stateless,
and who have ties to the Contracting state either by birth or descent.
The UNHCR provided the following example to illustrate how proposed paragraph
12(9)(a) may be contrary to Australia's obligations under the 1961
...a child may have been born in Australia, to an Australian
parent, lawfully taken overseas, returned and then abandoned without any
documentation at such an age that the child would not be able to communicate
its own nationality or that of its parents.
As noted above, the Department argued that these provisions do not
trespass unduly on personal rights as a stateless person may apply for
citizenship at any time.
Good character test
Currently, adults are required to pass a 'good character' test. The bill
proposes to remove the age limits in relevant sections of the Act so that
children will need to satisfy the Minister that they are of 'good character'. The
EM reflects the justification for the amendments:
The amendment recognises the fact that people under the age
of 18 sometimes have significant character concerns and/or have committed
particularly serious crimes, and that the Minister should therefore have the
discretion to refuse to approve such a person becoming an Australian citizen...
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 Australian
community reasonably expects should not be extended the privilege of Australian
citizenship at that time.
In relation to its compatibility with human rights obligations, the EM
provided the following explanation:
In the context of engaging with Article 3(1) of the CRC,
while it may be in the best interests of the child to obtain citizenship the
best interests of the child must be weighed against other competing interests.
The proposed change is similar to provisions which
currently exist in the Migration Act, which does not have an age limit
for "good character". Similarly, in order to preserve the integrity
of the citizenship programme, being the final stage of assessment of a person’s
rights to reside in Australia and to access the rights and privileges of
citizenship, it is appropriate that the assessment of the character of
applicants for citizenship is at least as thorough as the assessment of
character in the migration context. The amendment therefore aims to ensure the
safety of the Australian community by upholding the value of citizenship and
ensuring uniformity and integrity across the citizenship and migration
Finally, the Australian
Citizenship Instructions (ACIs) will ensure the good character amendment will
positively engage with Article 3(1) of the CRC. The
Australian Citizenship Instructions (ACIs) set out the policy considerations to
be taken into account by decision makers when assessing whether an applicant
meets the good character requirements. After the amendment comes into force,
the ACIs will set out instructions to ensure that decision makers relevantly
consider Australia’s obligations under the Convention on the Reduction of
Statelessness, and the best interest of the child as a primary consideration,
amongst other things.
A number of submitters also noted that the term 'good character' was not
defined in the Act.
The Kaldor and Gilbert + Tobin Centres noted that the Citizenship Policy states
that the question of whether a person is of good character includes:
characteristics which have been
demonstrated over a very long period of time;
distinguishing right from wrong;
behaving in an ethical manner,
conforming to the rules and values of Australian society.
It argued that it may be difficult, if not impossible, to judge whether
a minor, particularly a young minor, possesses these qualities. The Kaldor and
Gilbert + Tobin Centres also explained that a person's criminal conduct is
usually weighed against other factors such as the person's contribution to
society or steps to rehabilitate. However, due to the age of the minor, they
may lack the life opportunity to demonstrate such mitigating factors.
The AHRC also outlined that article 40 of the CRC requires that the
focus be placed on promoting 'the child's rehabilitation, reintegration and
assuming a constructive role in society'.
The AHRC argue that the proposed provision is inconsistent with article 40 of
Further, the AHRC questioned whether the proposed amendment was
reasonably justified or proportionate given that:
According to the latest statistics from the Australian Bureau
of Statistics, the predominant principal offence committed by youth offenders
(i.e. children aged 10 to 17 years) was theft, which comprised 35% of all youth
offenders. Approximately half of those offenders were proceeded against for
public transport fare evasion. Furthermore, over the period 2008–09 to 2015–16,
the number of youth offenders declined across most offence categories. Without
strong evidence that there is a need to protect the Australian community from
children who have committed 'particularly serious crimes' and that this measure
would be proportionate to achieving this objective, the Commission queries the
justification for extending this generalised 'good character' requirement to
As such, a number of submitters suggested that the provisions be amended
so that they applied only to 'serious character concerns' or 'particularly
The Law Council also questioned the utility of this section applying to
all minors, regardless of their age given that children under 10 years of age
are deemed to not be criminally responsible for conduct that would otherwise
amount to a criminal offence.
Consequently, the Law Council suggested that if good character requirements are
introduced for minors, that the provision be amended to apply to applicants who
are 10 years of age or older.
It is noted that the EM acknowledges that children under 10 years of age are
not held criminally responsible:
...the Department will not seek criminal history records of
children under the age of ten, as this is below the age of criminal
responsibility in Australia.
The committee believes that an important role of Government is to review
Commonwealth laws to ensure that they continue to serve their intended purpose.
Governments are formed by elected parliamentarians who, in a representative
democracy, reflect and represent the views and beliefs of Australians. Such a
Government is, therefore, responding to broad community concerns in relation to
the integrity and effectiveness of the current Australian citizenship
framework. As well, the Government conducted extensive consultation in 2015 and
sought further comment in 2016 in response to the discussion paper Strengthening
the Test for Australian Citizenship. The results of the consultation
indicate that the Australian community believes that requirements for
Australian citizenship should be strengthened. It is fundamentally for this
reason that the committee recommends that the bill be passed.
The committee acknowledges that it has received a very large number of
submissions to this inquiry and thanks all submitters and witnesses for their
time and for sharing their personal stories. In particular, the committee notes
the concerns raised by submitters and witnesses in relation to the proposal to
amend general residency requirements, the new English language test, the
limitation on sitting the citizenship test, the requirement to integrate into
the Australian community, the Australian Values Statement, and the new pledge
of allegiance. The committee notes, with no reflection on the sincerity of
submitters, that most submissions (apart from campaign letters) were from
groups, organisations, lawyers, and those directly or personally impacted by
the proposed changes, and very little active response from 'ordinary individual'
Australians who expect the Government to action their views. However, the
committee also notes that consultations were conducted in relation to these
provisions in 2015 and 2016 and that 2,544 responses were received to the
National Consultation on Citizenship's on-line survey, the results of which
were as follows:
64 per cent of people felt that Australian citizenship is not
88 per cent of people believed that areas for the citizenship
test and the pledge should be examined, as well as the qualification criteria
including English language, more rigorous entry processes, identity, and
91 per cent supported examining the role of the existing
citizenship test and pledge to ensure the integrity of the citizenship program;
widespread recognition of the importance of English language for
full integration in Australian society and support for raising the minimum
standard of English from 'basic' to 'adequate'.
The results of the consultation show strong support for the Government
to implement changes to encourage greater integration and participation within
the Australian community, as well as promote greater understanding of the
rights, responsibilities and privileges attached to Australian citizenship. The
committee is of the view that the bill achieves these objectives and indeed
enhances the value of Australian citizenship.
Additional powers of the Minister
While the committee acknowledges that concerns raised by submitters in
relation to additional powers the bill proposes for the Minister, the committee
considers that these powers are necessary and proportionate to ensure the
integrity of the Australian citizenship program. The committee also notes that
an overwhelming majority of participants to the National Consultation on
Citizenship (91 per cent) supported more rigorous migration and border entry
The committee notes that where the Minister has personally made a
decision, which he determines to be in the public interest, to refuse to
approve, or cancel the approval for citizenship pursuant to proposed section
52(4), the Minister must table his decision, including the reasons for the
decision, within 15 sitting days of Parliament. The committee is satisfied that
this provides a sufficient level of transparency. Ultimately the Minister is
accountable to the Australian public for his actions over three years.
This same requirement also applies for decisions the Minister makes
under proposed section 52A of the bill to overturn a decision of the AAT. The
decisions of the AAT which were referred to in the EM are concerning and
clearly fall well outside community standards. Where the Minister exercises his
discretion to overturn a decision of the AAT, the applicant will still have
access to judicial review, and the committee considers this to be appropriate. As
well, the committee notes that the Minister is accountable to the Parliament
and ultimately the Australian public whereas AAT members are not 'judiciary'
and may not necessarily have any better learning, appreciation or ability to
make a decision than the Minister and are generally accountable to no one on
the merits or otherwise.
The committee considers that the additional powers of the Minister are
necessary to ensure integrity and confidence in the citizenship program as well
as bringing the Minister's powers closer in line with similar provisions under
the Migration Act.
Additional requirements for
In relation to the proposed limitation to the 10 year rule, the
committee is satisfied that children who may be rendered stateless because of
the provision will have an opportunity to apply for citizenship through the
conferral process. The committee is of the view that it is important to
encourage lawful pathways to migration and citizenship and that the
restrictions to the 10 year rule would assist to achieve this objective.
In relation to the proposed amendment to require applicants under the
age of 18 years to pass a character test, the committee again reflects on the
views of the community as reported through the National Consultation—that a
more rigorous entry process is conducted including consideration of a person's
Accordingly, the committee considers that this aligns with community
For the reasons outlined above, the committee is satisfied that the bill
is reasonable and justified, and therefore recommends that the Senate pass the
bill. However the committee makes a number of other recommendations to the
Government to consider some of the concerns raised during public hearings of
the committee, which also reflect the experiences of committee members as
Parliamentary representatives in a representative democracy.
That the Government clarify the standard for English-language competency
required for citizenship, noting that the required standard should not be so
high as to disqualify from citizenship many Australians who, in the past, and
with a more basic competency in the English language, have proven to be
valuable members of the Australian community.
That the Government reconsider the imposition of a two-year ban on
applications for citizenship following three failed attempts of the citizenship
test, and consider other arrangements that allow additional tests on a
cost-recovery basis that would deter less-genuine applicants.
That the Government consider introducing some form of transitional
provisions for those people who held permanent residency visas on or before 20
April 2017 so that the current residency requirements apply to this cohort of
That the Senate pass the bill.
the Hon Ian Macdonald
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