Chapter 3 - Consideration of the Bill
3.1
Overall the Bill was
welcomed as a significant improvement to the existing 1948 Act. However, a
number of key areas of concern and cross-cutting issues emerged in submissions
and in oral evidence. This chapter considers the major issues identified by the
inquiry.
Accessibility and clarity
3.2
As noted above, the redrafting and restructuring of the
Bill has been consistently welcomed by
practitioners, advocacy groups, individuals and academics. The Committee
recognises that this is a significant achievement and is encouraged by the
overall approach to the legislation. Two matters arose during the inquiry that
may contribute positively to increasing accessibility.
3.3
First, it was argued that it is important that the
legislation makes clear that a person who is a citizen under the 1948 Act
retains that status under the new Act.[42]
While this matter is dealt with in the proposed Schedule 3 of the Australian Citizenship
(Transitionals and Consequentials) Bill 2005 it was argued that members of the
public will expect to see it expressed and look to the principal Act. Both the
Centre for Comparative Constitutional Studies and Professor
Rubenstein argued that a substantive
provision clarifying the status of citizens under the 1948 Act should be
included in the Bill. The Centre for Comparative
Constitutional Studies also recommended that the Bills be integrated into one
piece of legislation.[43]
3.4
Second, it was suggested by the Centre for Comparative
Constitutional Studies that a table or chart which explains the operation of
the Bill could be included in a Schedule to the Bill.
Alternatively, as recommended by the Australian Citizenship
Council ... a Readers Guide could be developed to complement the finalised
legislation. The Readers Guide should be either appended to the legislation
itself as in the Trade Marks Act 1995, or included with every copy of the new
legislation.[44]
Committee view
3.5
The Committee acknowledges that the separation of
transitional and consequential provisions from substantive sections of the law
is a logical approach to redrafting the citizenship legislation. However, to ensure
clarity and avoid the risk of unnecessary public concern, the principal Bill
should include a clear substantive provision which clarifies that a person who
is a citizen under the 1948 Act is a citizen for the purpose of the 2005 Act. However,
the Committee considers that integration of both Bills into one piece of
legislation may undermine the goal of improving the accessibility and clarity
of the legislation.
3.6
Nevertheless, it is well accepted that citizenship law
is inherently complex and, in addition to redrafting, there are some
significant policy changes reflected in the Bill.
A narrative chart or readers' guide included as part of the legislation itself
is an inexpensive and practical measure to enable the public and practitioners
to understand the operation of the new legislation. It should be seen as a more
detailed addition to the information provided on the citizenship website.
Recommendation 1
3.7
The Committee recommends that the principal Bill
include a substantive provision, which provides that a person who is a citizen
under the 1948 Bill is a citizen for the purpose
of the new Act.
Recommendation 2
3.8
The Committee recommends that a chart or alternatively
a readers' guide, which explains the operation of the new law, be developed and
incorporated as a Schedule to the principal Bill.
Public information
3.9
The question of the extent of public awareness about the
proposed changes to the 1948 Act was raised during hearings. The Committee
received inquiries indicating that some migrant groups were not entirely aware
of the Bill and that as a result, particularly
in relation to the extended residential qualifying period, some permanent
residents currently eligible for citizenship would lose that eligibility.[45] The possibility of using television,
radio and various ethnic media as part of an information campaign was
canvassed.[46] However, the Department
indicated that no special public communication strategy had been planned.[47] The Department was satisfied that
there was a general awareness in the community evidenced by an increase in
inquiries and applications for citizenship and referred inquirers to the
Departmental website.[48]
3.10
The Southern Cross Group welcomed the website but
remained strong advocates of increased communication with the Australian expatriate
community.[49] The need for a public
education campaign through Australian mission overseas to advertise the new act
was also regarded as essential to reach all those who will be affected by the
legislation, particularly the new rights to resume citizenship.[50]
Committee view
3.11
The Committee is concerned that many permanent
residents currently eligible to apply for citizenship may not be aware of the
proposed changes to the residential qualifying period (discussed below). There
are approximately 900,000 permanent residents currently eligible for Australian
citizenship.[51] More than half that
figure is made up of permanent residents from the United
Kingdom and New
Zealand, many of whom
may be under the misapprehension that they are already citizens.[52] Many permanent residents in other
non-English speaking communities who are currently eligible for citizenship are
equally likely to be unaware of the proposed changes to the citizenship law.[53]
3.12
Information on a website is an important but passive
communication tool. The Government has an obligation to ensure that changes in
the citizenship law are widely understood. This is also an opportunity to
promote the taking up of citizenship. The Committee reiterates its concern that
the Department should make every effort to communicate with the Australian
public and the expatriate community, especially where changes in legislation
will affect their entitlements and obligations.[54]
Recommendation 3
3.13
The Committee recommends that the Department develop
and implement a comprehensive public information campaign to promote the new
Citizenship Act.
Recommendation 4
3.14
The Committee recommends that sufficient budget be
allocated to enable the use of television, newspaper and radio in Australia
and overseas in appropriate community languages.
Recommendation 5
3.15
The Committee recommends that the Department work
actively with DFAT to ensure that information materials are distributed through
Australian overseas posts to facilitate communication with the expatriate
community.
Increased residential qualifying period
3.16
Many witnesses acknowledged the importance of a
suitable residential qualifying period[55]
but argued that the additional twelve month period is unlikely to make a
significant contribution to national security protection. However, it would affect
over one million existing permanent residents, many of whom it is envisaged
have made plans based on the existing rules.[56]
Concerns were expressed about the unintended and adverse consequences that will
be experienced by this group and the further delay in achieving citizenship
that will be experienced by current temporary entrants.[57] The Committee was also told that security
checks of temporary entrants and applicants for permanent residency are already
in place.[58]
Entitlements
3.17
In relation to entitlements, the Commonwealth
Department of Family and Community Services (FACS) advised that the extended residential
qualifying period is unlikely to affect a person's eligibility for social
security payments and family assistance. Eligibility for these entitlements is
generally possible for people who reside in Australia
and have permission to remain here permanently.[59]
3.18
However, a number of witnesses indicated the way in
which the change in residency requirements will affect them personally. For
example, the delay in qualifying for access to HECS assistance for families unable
to afford upfront fees was raised as creating a significant financial problem
for some.[60]
Globalised economy
3.19
The Committee was also told of more indirect effects that
could result from the rule change. Fragomen Australia
argued that citizenship law is a factor in whether Australia
is a competitive environment and able to attract and retain highly skilled
migrants.[61] Approximately 50,000
people enter Australia
on the Temporary Business Entrants (Long Stay) Subclass 457 visa and many
remain permanently under the Employer Nomination Scheme (ENS).[62] Recent changes to the ENS and the
projected changes to citizenship criteria would mean that in most cases it
would be necessary for a person to remain in Australia
for at least five to six years to qualify.[63]
Corporate executives and skilled technical people are often required to move and
the longer residency requirement will be a barrier to Australia's
ability to retain them or attract them back to the country.[64]
Refugees
3.20
Refugee groups also argued that the longer residency
period fails to recognise that obtaining citizenship as quickly as possible is
crucial to refugees who need security to rebuild their lives. These permanent
residents have already been subject to security checks by other agencies
including the United Nations High Commissioner for Refugees (UNHCR) and the
Department before entry or grant of an onshore application.[65] In particular, it was argued that Temporary
Protection Visa (TPV) holders will be disproportionately affected. TPV holders
must wait 30 months before obtaining permanency and may be on a TPV for five years.
TPV holders also undergo security checks and must pass a further security check
before being granted permanent residency.[66]
Ministerial discretion to waive
residency requirements
3.21
The Minister may, under certain conditions, exercise
discretion to count periods of temporary residency or a period spent overseas
as a permanent resident, toward the residency requirement. The discretion may
be exercised where the person would otherwise suffer significant hardship or
disadvantage or was engaged in activities beneficial to Australia.[67]
3.22
There is currently no indication as to how 'significant
hardship or disadvantage' or 'activities beneficial to Australia'
will be defined and interpreted. However, in relation to the latter, the
Department indicated that currently 'beneficial to Australia'
is limited to economic benefit but under the new legislation the definition
would be more generous.[68] For example,
spouses of Australian citizens who are in Australia with their families are
likely to be catered for in Departmental policy guidelines. The Department also
indicated that proposed subsection 22(7) would be amended to allow for up to 24
months temporary residence to be taken into account.[69]
Committee view
3.23
The Committee notes that consideration of adverse
consequences for many law abiding residents is important. The Committee notes
that New Zealand
exempted existing permanent residents when it introduced changes to the
residential qualifying period in 2005.[70]
Applying the new rules to future permanent residents would be a clear and
unambiguous way of achieving that objective.
3.24
The Committee recognises that for many migrants, and
especially many refugees, the security of citizenship has important
psychological and social benefits. In addition to rights of political
participation, citizenship signifies Australia's
commitment to an inclusive, diverse and tolerant community. In an environment
of acute skills shortage with an ageing population it is also important to
attract and retain skilled migrants. The Committee therefore encourages the
Government to ensure these principles are fully expressed in the Departmental
guidelines. In particular, that the interpretation of 'significant hardship or
disadvantage' and 'activities beneficial to Australia' should encompass the
breadth of social, cultural and economic factors relevant to a wide range of
groups within the Australian community.
Recommendation 6
3.25
The Committee recommends that the Government apply the
new residential qualifying period to permanent residents who are granted
permanent residency on or after the date of commencement of subdivision B.
Recommendation 7
3.26
The Committee recommends that the policy guidelines
ensure the concepts of 'significant hardship or disadvantage' and 'beneficial
to Australia'
are interpreted broadly to include social and cultural factors as well as
economic considerations.
Definition of spouse excludes same sex couples
3.27
As noted above, in certain circumstances the Minister
may count a period towards the residential qualifying period.[71] Special provision has also been made
for a permanent resident spouse, widow or widower of an Australian citizen not
present in Australia
during the required period but who has a close and continuing association with Australia.[72] The Bill
updates the definition of 'spouse' so as to remove the previous limitation,
which required the couple to be legally married, to now include a person
granted a permanent visa who is a de facto spouse of the citizen.[73] Witnesses welcomed the inclusion of de
facto couples but expressed concern that same sex couples would not be dealt
with equally under the discretion[74] During
the hearing the issue was raised with the Department who indicated that this
matter had not yet been given detailed consideration.[75]
Committee view
3.28
The Committee welcomes the inclusion of de facto couples
in the definition of spouse and believes that this approach more accurately
reflects the diversity in the Australian community than the 1948 Act. The
Committee also believes that it would be timely to consider extending the
benefit of the discretion under the Bill to same
sex partners.
Ministerial Discretion
3.29
The Minister's discretion not to approve an application
for citizenship (conferral or resumption) was the subject of some criticism.[76] It was said that the Bill
clearly sets out the eligibility criteria for acquiring citizenship, which have
been supplemented with stringent identity and security assessments, providing
ample grounds on which to refuse citizenship without the need for an undefined
discretion.[77]
3.30
HREOC argued that the residual discretion increases the
risk that a Minister may impose arbitrary and unduly onerous criteria upon an
applicant.[78] These views were shared
by the NSWCCL, who also were concerned that an unstructured discretion leaves
open the possibility of discriminatory decisions.[79] The Centre for Comparative
Constitutional Studies recommended that the residual discretion be eliminated
or structured.[80] The Law Institute of
Victoria (LIV) also opposed retention of the discretion on the grounds that it
permits broad policy considerations to influence a Minister's decision.[81]
3.31
The Explanatory Memorandum states that:
This discretion has been in existence since the inception of the
Act in 1948.
It has been a uniform feature of naturalisation legislation
(i.e. citizenship by conferral) throughout the Commonwealth for over a century
to give the Executive a wide discretion regarding the approval or refusal of
citizenship applications.[82]
3.32
The reason for retaining a Ministerial discretion reflects
that citizenship by application is a 'privilege not a right' and that a person
may satisfy the eligibility criteria but there may be good reasons for
rejecting their application.[83] A person
who incites hatred or religious intolerance but may not necessarily be rejected
on 'good character' is cited as a reason for retaining the discretion.[84]
Committee view
3.33
The Committee agrees that acquisition of citizenship by
application is a privilege and entails an undertaking to respect the rights and
liberties of other Australians and a commitment to democratic values. It is
appropriate that where there is a demonstrable likelihood a person will not
discharge that responsibility s/he should not be granted citizenship. Transparency
and accountability are also two of the most fundamental democratic values which
underpin the rule of law in Australia.
Where an application for citizenship is refused merits review is available in
the AAT providing the applicant with an opportunity to challenge the reasons
for that refusal.
Good character test
3.34
Professor Rubenstein
pointed out that there is no definition of good character in the Bill
(nor was there under the former Act) yet it is mentioned many times as a
criterion for eligibility to citizenship.[85]
3.35
The Committee notes that while important issues that go
to the general question of character are elaborated upon in the Bill, the lack
of a single defined test indicates that 'good character' is intended to
encompass additional considerations. HREOC cast doubt on whether the term 'good
character' would exclude a person who was believed to promote intolerance in
the Australian community as suggested by the Explanatory Memorandum.[86] It was suggested that, the power to
refuse citizenship on 'character' grounds should be spelt out in the
legislation in a similar fashion to the character test under the Migration Act 1958 (the Migration Act).[87]
Committee view
3.36
The Committee notes that the existing good character
requirement under the 1948 Act remains unchanged in the Bill.
In light of the detailed eligibility criteria and the new requirement to
exclude a person on national security grounds, it would be appropriate to
reconsider how the character test in the citizenship context is intended to
operate. If the good character test is intended to deal with a specific
mischief it should be elaborated to the maximum extent possible in the Bill.
This could be achieved by the adopting the existing definition in the Migration
Act.
Recommendation 8
3.37
The Committee recommends that the 'good character' test
be defined in the Bill.
National security exclusion – no ministerial discretion
3.38
A number of witnesses opposed subsections 17(4), 24(4)
and 30(4), which have been described as giving Australian Security Intelligence
Organisation (ASIO) 'a veto' over who becomes an Australian citizen.[88] During hearings, the Department
confirmed that ASIO performs security checks for persons seeking
permanent residency,[89] and that a
police check is carried out as part of the 'good character' requirement under
the 1948 Act.[90] The Department confirmed that there was a view that police checks
are not adequate to deal with security issues.[91]
3.39
Currently a national security assessment may be made available
to the Minister of Immigration as part of ASIO's broad function of providing
such assessments to Commonwealth agencies.[92]
The Committee was told that adverse assessments of non-citizens are rare.[93] The provisions therefore represent a significant
upgrading of the role of national security assessments in the citizenship
decision making process.[94]
3.40
The Law Society of South Australia (LSSA) opposed the
new provisions arguing that the provisions of the Bill
are unacceptably broad.[95] The Bill
relies on the definition of 'security' and 'adverse' and 'qualified security
assessment' contained in the ASIO Act. LSSA argued that: 'The new provisions
allow the executive the power to deny an application citizenship on the most
tenuous suggestion of alleged risk to security.'[96]
3.41
The mandatory nature of the provisions and the breadth
of the assessment under the ASIO Act raises important issues of transparency
and accountability. HREOC opposed the mandatory nature of the provision. There
is no scope to take account of competing considerations, and a refusal to grant
citizenship is not subject to effective merits review.[97]
3.42
The Explanatory Memorandum simply states that a
'security assessment' is reviewable under Part IV of the ASIO Act.[98] However, LSSA, HREOC and NSWCCL were
critical of the review process, specifically that:
-
proceedings must be held in private;[99]
-
the Attorney General may certify that the
applicant not be notified of the adverse security assessment and/or not be
informed of the grounds for the assessment;[100]
-
the statutory right to reasons under the Administrative Appeal Tribunal Act 1975 (AAT
Act) does not apply where the review jurisdiction is exercised by the Security
Appeals Division of the Administrative Appeals Tribunal (AAT);[101] and
-
the applicant and his or her representative may be
excluded from that part of the hearing, which involves the disclosure of
security sensitive information.[102]
3.43
HREOC also argued that the jurisdiction of the AAT may
only be invoked when the applicant has been given notice of the security
assessment.[103] Thus, in cases where
the Attorney General exercises his power to certify that the applicant not be
informed of the assessment, review rights are effectively vitiated.
3.44
To ameliorate the barriers to procedural fairness HREOC
recommended that the National Security
Information (Criminal and Civil Proceedings) Act 2004 be amended to apply
to the Security Appeals Division of the AAT. This would enable the AAT to make
an assessment as to whether sensitive information should be disclosed to the
applicant for citizenship.
3.45
The Committee also notes the parallel to subsection
116(3) of the Migration Act and
Regulation 2.43, which require the Minister to cancel a visa once ASIO has made
an adverse security assessment against a visa holder, and provides no
discretion.[104] These provisions apply
to temporary visa holders in Australia,
and permanent residents who are overseas and who have not yet entered Australia.[105] By contrast provisions that apply to
permanent residents in Australia
provide the Minister with a discretion:
If the person is in Australia
as a permanent visa holder, they may be considered for visa cancellation under
the character provisions of section 501 of the Migration Act or, in some
circumstances, deportation under section 202 of the Migration Act.
Exercise of either of these powers requires the decision maker
to consider the reasons behind the adverse security assessment. Therefore, the
decision maker needs to have sufficient reasons, provided by ASIO or other
sources, before consideration can be given to cancellation or deportation as
appropriate.[106]
Committee view
3.46
The Committee acknowledges that it is the
responsibility of Government to respond to demonstrable risks to national
security. In this respect, the proposed provisions represent a more explicit
and consistent approach to national security in the field of migration and
citizenship law. However, the mandatory rejection of a citizenship application on
the basis of either an adverse or qualified security assessment makes no
allowance for competing considerations and may result in a disproportionately
harsh outcome in some cases.
3.47
While subsection 116(3) and Regulation 2.43 are
mandatory, other provisions of the Migration Act allow for ministerial
discretion. The Committee also notes that the power to make a decision to
deport a non-citizen under section 202 of the Migration Act arises where the
security assessment is adverse but not where the assessment is a qualified
security assessment.[107] Against this
background the provisions appear more onerous than is necessary to stop a
person who is threat to national security risk from obtaining citizenship. The
removal of discretion where national security grounds are implicated also sits
at odds with the conferral of wide discretions elsewhere in the Bill.
3.48
In addition, the lack of transparency may undermine
confidence in the decision making process and act as a disincentive to apply
for citizenship. The Committee suggests that to ameliorate the risk of an unfair
outcome, the Minister should retain some discretion to take account of
individual circumstances, including, for example, the nature of the risk and,
where applicable, the impact on the spouse and children.
Recommendation 9
3.49
The Committee recommends that proposed sections 17(4),
24(4) and 30(4) be amended to give the Minister a discretion to reject an
application where s/he is satisfied that the person poses a threat to national
security.
Stateless Persons
3.50
A number of witnesses have raised concerns about the
consistency of provisions of the Bill with Australia's
international legal obligations under the Convention on the Reduction of
Statelessness (the Convention).[108] The
Committee notes that provisions relating to statelessness appear throughout the
Bill and are intended to replicate existing
section 23D of the 1948 Act.
3.51
Article 1 of the Convention imposes a duty to grant
nationality[109] to a person born in
the State party's territory who would otherwise be stateless. Citizenship
may be granted either by operation of law or application. Where the State party
requires an application, paragraph 2 prescribes the criteria that may be
applied:
-
the person has neither been convicted of a national
security offence or been sentenced to imprisonment for a term of five years or
more on a criminal charge;[110]
-
the person has always been stateless.[111]
3.52
NSWCCL argued that the Bill
imposes criteria, which fall outside the scope of article 1.2, in particular, the
requirement that the person:
-
must not be the subject of an adverse or
qualified security assessment;[112] and
-
must satisfy proof of identity.[113]
3.53
It was noted that an adverse or qualified security
assessment can be made without a conviction and this criterion is therefore inconsistent
with article 1.2(c).[114] Similarly,
the NSWCCL argued that failure to prove identity is not a sufficient ground
alone to deny citizenship where the person would remain stateless.[115]
3.54
HREOC made the additional submission that the State
party's discretion to require that a person 'has always been stateless' does
not extend to include the criteria set out in the Bill,
namely, that:[116]
-
the person does not have reasonable prospects of
acquiring the nationality of a foreign country;[117]
-
that the person has never had
such reasonable prospects.[118]
3.55
On this point, HREOC argued that the treaty permits an
exception only where the person 'has actually acquired the nationality of
another country'.[119] Professor
Rubenstein endorsed this view:
If you do not at that time have the right to citizenship in
another country, even if for whatever reasons you had it at an earlier stage,
then the convention would still require the committed countries to bestow
citizenship on that person. So I do not think those last few words are
necessary to the provision.
3.56
The same concerns were raised in relation to the acquisition
of citizenship by descent. Article 4.1 of the Convention on the Reduction of
Statelessness requires that Australia
grant citizenship to a person born outside Australia
where one parent is of Australian nationality, who would otherwise be
stateless. It was argued that, while the provisions of the Bill dealing with
citizenship by descent meet the obligation in part, the refusal of citizenship
by descent under subsection 17(3) (identity) and 17(4) (adverse or qualified
ASIO assessment) raise the same issue of compatibility.[120]
3.57
The Department initially informed the Committee that
the provision has not changed from the current legislation and the Government
is satisfied that clause 21(8)(c) is 'not inconsistent' with article 1.[121] However, the Committee notes that in
further correspondence, the Department explained that disqualification on the
grounds of lack of proof of identity or an adverse or qualified security assessment
had not been considered during the drafting of the Bill.[122] HREOC also confirmed, in response to
a question on notice, that it had not been consulted in the preparation of the
Bill.[123]
Committee view
3.58
The Committee notes that the proposed Bill
does change the law in two important ways. Further, while the Committee
appreciates that legal opinion may differ, there is a legitimate question as to
whether proposed paragraph 21(8)(c) is sufficient to meet the objectives of the
Convention. Australia
may have adopted an unduly restrictive interpretation of its obligations in
this regard.
3.59
The Committee considers that legal and policy issues
pertaining to the status of stateless persons (including children) and the
reduction of statelessness should be the subject of consultation between the Government,
HREOC and the UNHCR. Further advice from Attorney-General's Department should
also be sought in relation to all the matters raised during the inquiry.
Recommendation 10
3.60
The Committee recommends that sections 17, 24 and 30 be amended so as to limit the exclusion from
citizenship on national security grounds in the case of a stateless person to
applicants who have been the subject of an actual conviction for a security
related offence in accordance with the
provisions of the Convention on the Reduction on Statelessness.
Recommendation 11
3.61
The Committee recommends that the Bill
be thoroughly reviewed to ensure that Australia
fully discharges it responsibility towards stateless persons and that the UNHCR
and HREOC be consulted as part of this process.
Identity and privacy issues
3.62
As noted above, the Bill
prohibits the approval or renunciation of a person's citizenship 'unless the
minister is satisfied of a person's identity'.[124] NSWCCL argued that, although proof
of identity will be central to a grant of citizenship, there is no evidence
that identity fraud is a significant problem in citizenship applications and
there is no explanation as to why a fetter should be placed on the Minister.[125]
3.63
The new Bill proposes
the collection of the following personal identifiers, including biometric
information:[126]
-
fingerprints and handprints
-
measurements of a persons height or weight
-
photograph or other image of a person's face or
shoulders;
-
iris scan;
-
signature;
-
any other identifier prescribed by regulations,
except those obtained by way of an intimate forensic procedure within the
meaning of section 23WA of the Crimes Act
1914.[127]
3.64
Section 40 enables the Minister to request one or more
personal identifiers but the procedures and requirements for individuals to provide
personal identifiers will be specified in the regulations.[128] The Committee was assured that the
Department will consult with the Commonwealth Office of the Privacy
Commissioner (the Privacy Commissioner) in the development of these regulations.[129]
3.65
The use of biometric information in the proposed law was
criticised. In particular, the Australian Privacy Foundation believed that the
Government should be taking more time to consider the implications of the use
of biometric technology,[130] and
raised three principal objections:
-
biometrics and the recording of biometrics in a
database form are not infallible technologies, data can be corrupted and consequences
for victims of identity fraud are serious;
-
a biometrics database in the citizenship context
will be a vast undertaking. Management of existing databases has already been
criticised by the Auditor General, who reported a 30% error rate. Inadequate training
of Departmental staff who have access to the information was also criticised in
the Palmer report;
-
the use of biometrics is a 'stalking horse' for
a national identity card, which is being presented as a fait accompli because of its use already in relation to passports.
3.66
The Privacy Commissioner and the Australian Privacy Foundation
also argued that the scope of provisions governing collection, access, use and
storage of biometric data are not proportionate to the purpose of confirming
the identity of a person seeking citizenship.[131]
Several witnesses also submitted that there was no
demonstrable necessity to retain biometric data with an individual's
citizenship record once identity has been confirmed or beyond a
conferral of citizenship.[132]
3.67
Of particular note is proposed
subparagraph 10(2)(c)(ii), which permits regulations under the Act provided the
Minister is satisfied that obtaining the identifier will promote the purpose of 'complementing anti-people smuggling
strategies'.[133] Access to personal
identifiers for purposes other than confirming the identity of the applicant or
establishing proof of citizenship are also envisaged by the Bill. Subsection
42(4) allows for personal identifiers to be accessed for purposes such as
'combating document and identity fraud in citizenship matters' and
'complementing anti-people smuggling measures'.
3.68
The Australian Privacy
Foundation submitted that identifying information about citizenship applicants,
including fingerprints, photographs and iris scans, could be accessed or disclosed
for any reason, so long as there is either:
-
a law allowing
the recipient to access such information (cl.42(4)(h));
-
a purpose of
data-matching to identify a person for citizenship purposes (cl.43(2)(a));
-
an agreement with
any government agency (federal, state or territory) to exchange such
information (cl.43(2)(e)).
3.69
It was argued that disclosures
allowed under this Bill would include:
-
a State or
Territory police force, or any other body with investigative powers to collect
information – under the law governing that other body;
-
Centrelink or the
Tax Office – under an agreement, or under the social security or taxation
legislation which allows widespread collections from other agencies;
-
a State driver
licensing authority – under an agreement; or
-
a person’s
employer, bank, video rental store or fitness club (each holds signatures, and
potentially photographs) – for the purpose of data-matching to identify a
person.[134]
3.70
During the hearings, the
question of whether the Bill should make express reference to the Privacy Act was raised.[135] The Department argued that, in its
view, nothing would be gained by including such a reference because, where
there is an inconsistency, the provisions of the Bill would
prevail.[136]
3.71
However, the Department
reiterated that it is the intention that identifying information will only be
collected under the Bill for citizenship purposes. And that such information will
only be accessed and disclosed for purposes of the citizenship and migration
legislation 'and in some very limited other circumstances'.[137]
3.72
The Department conceded
that provisions which deal with personal identifiers have the potential to
allow use and disclosure in a wider range of circumstance than is intended. Further,
access and disclosure provisions were modelled on similar provisions in the
Migration Act. The Department has subsequently undertaken to examine how these
provisions 'might be amended to more closely reflect the policy intention'.[138] In particular, the Department
stressed that it is not intended that personal information be used, access or
disclosed for any breach of the law, except for the investigation of offences
against citizenship and migration laws.[139]
3.73
On the question of
retention of biometric information, the Department advised that retention is
necessary in case a request for evidence of citizenship is made. The rules in
relation to destruction of personal identifying information are governed by the
Archives Act 1983 (the Archive Act). Arrangements
under the Archives Act currently provide that documents relating to approved
citizenship applications (which would include identifying information) must be
retained for eighty years.[140]
Committee view
3.74
The Committee has previously expressed its concern
about the use of regulation making powers to extend the scope of legislation in
ways that prima facie infringe basic
civic liberties.[141] In particular,
the Committee is concerned about the breadth of the regulation making power
under section 10.
3.75
The requirement to establish proof of identity is not per se an unreasonable requirement. How proof
of identity is administered will be crucial.
3.76
The Committee welcomes the Department's undertaking to
review the access, use and disclosure provisions. However, the Committee does
not agree that an entitlement to obtain proof of citizenship is sufficient justification
for the retention for eighty years of the personal identifying information of
Australian citizens. Instead it should be recognised that the retention of such
personal information increases the risk of unnecessary incursions into personal
privacy and encourages the use of this material.
3.77
The Committee is also concerned that this Bill
also represents another extension of Government activity involving the use of
biometrics without comprehensive public consultation; a pilot scheme or public
discussion of the costs and efficacy of new technologies.
Recommendation 12
3.78
The Committee recommends that the Department continue
to work with the Privacy Commissioner to restrict to the maximum extent
possible the collection, access, use and disclosure of personal identifying
information in the Bill.
The status of children under the Bill
3.79
A number of witnesses have argued that the status of children
under the Bill is unclear and that there are some
inconsistencies with Australia's
international obligations toward children.[142]
Application for citizenship
3.80
The Bill appears to
allow for an application for citizenship by a child to be made independently of
a responsible parent. However, it is not clear whether this applies in all
circumstances.[143] There is no age
barrier to when a person, including a child, may apply for citizenship by
descent. Similarly, there is no age limit on the resumption of citizenship,
including resumption where a child was deprived of citizenship as a consequence
of their parent's actions. Subsection 21(5) allows the Minister the discretion
to approve an application for citizenship by conferral from someone under the
age of 18.[144] It is unclear whether this
is intended to imply that an application for citizenship can be made on behalf
of a child.[145]
3.81
A question was also raised as to whether the provisions
of the Bill meet Australia's
international obligations in respect of children who are the subject of an
international custody dispute.[146] It
was suggested that the lack of clarity about the application process may create
the potential for a person, who is not a 'responsible parent', to apply on
behalf of the child.
3.82
Accordingly, witnesses proposed that section 21 should
make clear that a responsible parent may apply for citizenship on behalf of
their child.[147] It was also advocated
that, where the decision making power of the Minister under section 24 is exercised
in respect of a child (a person under 18 years), the Minister should be
required to take into account:
-
the best interests of the child as a paramount
consideration;[148]
-
the extent to which the grant of citizenship
might prejudice or disentitle the child's claim to citizenship of a foreign
state; and
-
Australia's international obligations in relation
to children.
The status of children adopted
outside Australia
3.83
Section 13 confers automatic citizenship on an adopted
child if the adoption is under a law of a State or Territory; at least one
adoptive parent is an Australian citizen and the person is present in Australia
as a permanent resident. The Department confirmed that proposed section 13 is
identical to the equivalent provision of the 1948 Act.[149]
3.84
The Committee was informed that under international
treaties, Australia
is required to ensure the same rights and protections that are accorded to a child
adopted overseas that apply to a child adopted in Australia.[150] Under Regulation 16 of the Family Law (Hague Convention on Intercountry Adoption)
Regulation 1998, recognition of adoption occurs automatically upon the
issuing of an adoption certificate by the adopted child's country.[151] Consequently, some children adopted
overseas will not be present in Australia
as permanent residents at the time the adoption is recognised in Australia
and will not automatically become citizens by operation of proposed section 13.[152] Witnesses agreed that automatic
conferral of citizenship may lead to loss of citizenship of the country of
origin contrary to the interests of the child.[153]
3.85
It was suggested Australia's
obligation could be fulfilled by permitting an adopted person of any age, who
was adopted overseas and whose adoption is recognised in Australia,
to apply for citizenship. A grant of citizenship should require consideration
of:
-
the age of the applicant;
-
the best interests of the child if the person is
under 18 years old;
-
whether a grant of Australian citizenship will
affect their citizenship of another country.[154]
Loss of citizenship
3.86
Subsection 36(1) confers discretion on the Minister to
revoke the citizenship of a child where the citizenship of their responsible
parent is ceased because of citizenship fraud (including third party fraud);
conviction for a serious criminal offence (committed before conferral) or where
the parent has renounced citizenship.[155]
3.87
The UN Committee on the Rights
of the Child has recommended that no child be deprived of his/her
citizenship on any ground, regardless of the state of his/her parent(s).[156] HREOC therefore welcomed the removal
of the automatic loss of citizenship under the new Bill.[157] However, several witnesses queried
why a ministerial discretion to deprive a child of citizenship had been
retained.[158] To strengthen the
protection of the child, the Centre for Comparative Constitutional Studies
argued that the Minister should be required to take into account the best
interests of the child. By contrast, HREOC recommended that the discretion
under proposed subsection 36(1) be removed entirely from the Bill.[159]
Committee view
3.88
Having considered the evidence, the Committee agrees
that the recognition of rights and interests of the child under Australian
citizenship law requires closer attention. Clarification of the circumstances
in which an application for citizenship of a child may be considered separately
or with that of their responsible parent would improve the visibility of the
child in the Bill. This would also contribute to
their recognition as full members of the Australian community. The situation of
persons adopted overseas also requires attention.
3.89
The Committee also believes that, in most instances, it
would not be acceptable to the Australian community to strip a child of
citizenship because of the actions of their parent(s). In its current form, subsection
36(1) is unfettered and leaves open the potential for considerations contrary
to the interests of the child. Subsection 36(1) would be improved by including:
-
a presumption against revocation of citizenship
of a child;[160]
-
a requirement that the Minister must have regard
to the best interests of the child as a paramount consideration;[161]
-
the right of the child to nationality and to
preserve identity, including nationality;[162]
and
-
that the views of the child should be taken into
account.[163]
3.90
Similarly, where a Minister makes a decision for the
resumption of citizenship under section 29 the same criteria should apply.
Recommendation 13
3.91
The Committee recommends that the Bill
should expressly adopt the principle that, in all decisions affecting the
rights and interest of a child, the best interests of the child shall be a
paramount consideration in Part 1 of the Bill.
Recommendation 14
3.92
The Committee recommends that the Bill should clarify
when a child may make an application in their own right and when an application
may be considered as part of an application of a responsible parent.
Recommendation 15
3.93
The Committee recommends that the discretion to revoke
the citizenship of a child where the citizenship of the parent has ceased should
be amended to reflect Australia's
international obligations and include a:
-
presumption against revocation of citizenship of
a child;
-
requirement that the Minister must have regard
to the best interests of the child as a paramount consideration;
-
requirement that the views of the child should
be taken into account.
Resumption of citizenship
3.94
The provisions relating to the resumption of
citizenship have generally been well received. In particular, the Bill
provides that resumption of citizenship may be granted to a person
-
who lost citizenship under the dual citizenship
rule in section 17 of the 1948 Act (prior to its repeal in 2002) may apply for
resumption of citizenship;[164]
-
who lost citizenship because of renunciation
under section 18 of the 1948 Act to avoid suffering signigicant hardship or
detriment.[165]
In
addition, subject to the good character test, a child, born outside Australia
to a former Australian citizen who lost citizenship under the section 17, may
apply for citizenship by conferral (but is not required to make a pledge).
3.95
However, a number of witnesses have criticised the Bill
for not providing an opportunity to 'resume' or acquire citizenship by descent
for the later born offspring of former Australian citizens who renounced
citizenship.[166] It was argued that
the distinction between these groups of later born children cannot be justified.[167]
3.96
In the case of Maltese born children of former
Australian citizens, the Committee was reminded that between 1969 and 2000,
Australian born Maltese were required to renounce their Australian citizenship
by their 19th birthday in order to keep their Maltese citizenship in
adulthood.[168] The historic inequity
of loss of citizenship is cited as one reason for allowing the overseas born
offspring of those Australian born Maltese to have access to Australian
citizenship by descent or conferral.[169]
It was also noted that people who fall within this category are not confined to
a relatively small number in Malta but include the offspring of any former
Australian citizen who renounces their citizenship in order to acquire or
retain the citizenship of any other country.[170]
3.97
The Department explained the distinction on the basis
that renunciation is regarded as a final act of severing the relationship with
the country.[171] The current provision
for later offspring of former citizens who lost citizenship as a result of
section 17 (dual nationality), is regarded as a final 'tidying up' of the
consequences of the dual nationality rule:
... the legislation has, over the years,
clearly discriminated between section 17 and section 18. Section 17 was an
operation of law provision. There have been resumption provisions since 1984
for people who lost their Australian citizenship under section 17. There have
been resumption provisions for quite some years for children who lost their
citizenship under section 23 as a result of a parent having renounced their
citizenship or lost their citizenship under section 17. Section 17 has been
repealed and the focus of, if you like, trying to tidy up the consequences of
section 17 and providing for the adult children of those who lost under section
17 is linked to the repeal of section 17. The provisions extending the
provisions for people who have renounced their citizenship to resume their
citizenship are regarded as a very significant extension of a resumption
provision that was introduced only in 2002.[172]
3.98
During hearings, the Committee canvassed the question
of resumption and where the boundary should be drawn. In providing the
background to the issue, the Department told the Committee that:
... three ministers have now considered this issue. Minister
Hardgrave cast the die in the first place. Mr
McGauran then affirmed that position and Mr
Cobb subsequently affirmed that position
again. So it has been given significant consideration since 2003.[173]
Committee view
3.99
The Committee considers that this matter has been fully
considered by the Government over a number of years and that renunciation is
properly regarded as a more significant and conscious relinquishing of the
bonds of allegiance to Australia.
As such, the Committee accepts the proposed provisions.
Review rights
3.100
Merits review in the Administrative Appeals Tribunal
will be available in relation to many of the decisions made under the Bill.
However, in relation to a decision under clause 24 (citizenship by conferral),
review rights are restricted to permanent residents (except for non-residents
under 18 years of age). A number of witnesses argued that this effectively
denies an opportunity for merits review to children of former citizens;[174] persons born in PNG;[175] and stateless persons.[176] During hearings the Department
informed the Committee that:
The second issue I wish to raise is that of review rights. It
was the intention of the bill that all reviewable decisions under the Australian
Citizenship Act 1948 be reviewable under the
proposed new act – that is, that there would be no change to the review rights.
However, the bill does not fully reflect the existing review provisions for
those applying for citizenship for reasons of statelessness under clause 21(8)
to seek review if their application is refused. This was an unintended drafting
oversight. A government sponsored amendment will be introduced to address this.[177]
3.101
The Department stated that an exercise of Ministerial discretion
under subsections 22(6), (7) and (8) will be reviewable by the AAT.[178] The Committee notes that the review
of a decision under section 24 (citizenship by conferral) is expressly provided
for by section 52. However, whether the AAT has jurisdiction to examine
decisions under subsection 22(6) and (7) may be open to argument.
3.102
Section 52A of the 1948 explicitly provides that a
decision of the Minister under section 13 is a reviewable decision. Ministerial
discretion to count certain periods of temporary residency as permanent residency
were contained in paragraph 13 (b). The drafting of the new Bill
separates these provisions.
Committee view
3.103
The Committee understand that the Department's
intention is that Bill maintain the status quo
on review rights and welcomes its clarification of this matter. This area
requires careful attention so as to not remove rights to procedural fairness
and merit review from applicants for citizenship.
Recommendation 16
3.104
The Committee recommends that all existing review
rights be maintained.
Dual nationals
3.105
The NSWCCL pointed out that the Bill
fails to address some important issues arising out of recent High Court cases
concerning the 'aliens' power.[179] In
summary, the result of the Singh case is that a person may be regarded as both
a statutory citizen and a constitutional alien.[180] NSWCCL agued that:
In the case of Singh, the lead judgment stated that an alien is
simply a person who owes allegiance to a foreign power.[181] This has serious implications for
citizens who have dual citizenship. In essence, it means that any dual citizen
is liable to deportation under the Migration Act. This would also, presumably
apply to citizens by birth and descent, as well as by conferral.[182]
3.106
The Department advised the Committee that:
Data on the number of Australians who hold dual citizenship is
not available. The Department has unsuccessfully suggested in the past that the
Australian Bureau of Statistics include in the census form, a question or
questions on dual citizenship. The Australian Citizenship
Council in its February 2000 report Australian
Citizenship for a New Century estimated the number
of dual citizens at 4.4 million.[183]
Committee view
3.107
The Committee is concerned that the potential for
treating a person who is a citizen also as an alien has wide ranging
consequence for the value of Australian citizenship. While there are limited
circumstances in which citizenship may be ceased under the current law, the
provision for depriving a person of citizenship is tightly circumscribed. This
recognises that once a person has made an allegiance to Australia,
the responsibility to reciprocate that mutually legally binding relationship
should only be broken by the State in extreme circumstances. Without
constitutional protection Australian citizenship is a statutory creature
subject to change by the Parliament. While this is desirable, in that
citizenship can be updated to reflect changing social attitudes, the
fundamental worth of citizenship should not be in doubt.
Recommendation 17
3.108
The Committee recommends that the Preamble recognise
that Australian citizenship represents full and formal membership of the
community of the Commonwealth.
Senator
Marise Payne
Committee Chair
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