Chapter 4 - Legal and other issues
4.1
This chapter discusses the following issues:
- legal and drafting issues;
- the content and nature of the proposed test;
- resourcing and alternatives to citizenship testing; and
- other issues.
Legal and drafting issues
4.2
Several legal and drafting issues were raised during the committee's
inquiry, including:
- the nature and breadth of the Minister's determination; and
- the Bill's commencement clause.
Proposed ministerial determination
4.3
Item 5 of the Schedule to the Bill would insert a new section 23A in the
principal Act. Specifically, subsection 23A(1) would require the Minister to
make a written determination to approve a test for the purposes of the proposed
new subsection 21(2A).[1]
Subsection 23A(7) declares that a determination made under subsection (1) is
not a legislative instrument.
4.4
The Senate Scrutiny of Bills Committee observed that:
If the determination of a proposed citizenship test is not of a
legislative character, then it may be considered not to apply generally to a
group of people, but is more of an administrative decision tailored to a
particular applicant for Australian citizenship... If the determination is taken
to be an administrative decision to approve a test for a particular applicant,
then there does not appear to be any provision in the bill for the
determination to be subject to any form of merits review under the Administrative
Appeals Tribunal Act 1975.[2]
4.5
The Department responded to this concern as follows:
This view seems to be based on the Committee's reading of
paragraph 5(2)(a) of the Legislative Instruments Act 2003 (LI Act),
which provides that an instrument is taken to be of a legislative character if,
among other things, "it determines the law or alters the content of the
law, rather than applying the law in a particular case".
It does not follow, however, that if an instrument does not
determine the law or alter the content of the law it must be an instrument that
applies the law in a particular case. An instrument that does not
determine the law or alter the content of the law may nevertheless be an
instrument that applies the law (or makes provision for its application) to a group
of people. The Government is of the view that the power in section 23A(1) is a
power to make a determination that applies generally and not in relation to a
particular case or cases and therefore merits review is not appropriate.
Whatever the precise 'character' of a determination under
proposed section 23A(1), the Government does not believe that such a
determination, which will approve the content of the new citizenship test,
should be subject to the disallowance provisions of the LI Act.[3]
4.6
In oral evidence the Department stated that:
It is also the government's view that the determination should
not be the subject of disallowance provisions in the Legislative Instruments
Act. This is because the government believes that this is likely to be a source
of uncertainty and confusion, especially where potential applicants have sat
and passed a test that may then be disallowed.[4]
4.7
HREOC in supplementary evidence informed the committee that under
section 15 of the Legislative Instruments Act 2003 there would be no
legal confusion in relation to any rights that might have accrued prior to a
disallowance of, or motion to disallow, the minister's determination. According
to HREOC, that section of the Act and particularly subsections (b) and (c) make
it clear that any rights that have accrued prior to a disallowance or motion to
disallow would not be affected.[5]
4.8
HREOC assumed therefore that the 'uncertainty' to which the Department
referred would result from the period of time that the Parliament might take to
resolve any disallowance motion. HREOC submitted that either administrative or
legislative steps could easily be taken to avoid the 'uncertainty',
specifically, that:
At the administrative level, the Minister could ensure ... that
the test would not be implemented pending resolution of the matter within
Parliament. Alternatively, the instrument could be drafted in such a way that
either it does not come into effect until the 15 sitting days have elapsed, or
if a motion for disallowance is put, pending the outcome of the motion.[6]
4.9
Several other witnesses also commented on matters to do with ministerial
discretion, particularly on the breadth of ministerial discretion in the Bill
and whether the Minister's determination should be a legislative instrument.
4.10
The Western Australian Government, for example, having canvassed the
definition of a legislative instrument as defined under section 5 of the Legislative
Instruments Act, submitted that it is 'unclear why the Minister's determination
[under proposed subsection 23A(7)] does not have the character of a legislative
instrument and [is] therefore capable of being reviewed by Parliament'.[7]
The Western Australian Government also submitted that:
While it would not be appropriate for the details referred to in
s23A to be contained in the Bill, it would be appropriate that they be made
through legislation and therefore subject to an appropriate level of public
scrutiny.[8]
4.11
The Centre for Human Rights Education submitted that:
... the Bill provides that there will be a test that a person has
to complete and it is for the Minister to approve the actual test by
"written determination" (s. 23A(1)) and to also determine what
amounts to successful completion of the test (s. 23A(2)). Where then does this
leave any scrutiny by Parliament? The design and structure of any proposed test
should be transparent, objective and open to public consultation and scrutiny.[9]
4.12
Another submission argued that:
There seems to be no restriction on the minister making
determinations on the content, passing grades, means of administration or
eligibility to set the test on an individual-by-individual basis, opening up
the possibility for abuse similar to that a few decades ago when a test
"in a language of the British Isles" was given to a continental
European in Gaelic ... [10]
4.13
The B'nai B'rith Anti-Defamation Commission stated that:
It is unsatisfactory for legislation to be passed which leaves
all aspects of a proposed scheme to the discretion of the Minister. While the
intention at this time may be innocuous, legislation of this nature should not,
as a matter of principle, be allowed to pass through Parliament and to become
law.[11]
4.14
Similarly, Ms Anna Samson of the Refugee Council of Australia was
concerned that the Bill 'leaves some of the most contentious aspects of the
policy within the sole purview of the Minister and beyond the scrutiny of the
legislature.'[12]
Indeed, some witnesses described the Bill as 'shell legislation'.[13]
4.15
The Australian Christian Lobby, however, submitted that the test
questions should be approved by the Minister as a representative of the people.[14]
4.16
To reduce the potential for ministerial discretion, VIRWC suggested that
the proposed test should be approved by an independent panel of reputable
experts, rather than the Minister.[15]
Similarly, the NSWCCL felt that the Bill should require the test be submitted
to a consultative committee.[16]
4.17
HREOC contended that:
... on the one hand, the legislation confers too much discretion
on the minister in formulating a citizenship test ... In this regard, the
amendments do not limit the minister's discretion or subject it to external
scrutiny. On the other hand, HREOC submits that there is insufficient discretion
conferred on the minister to formulate alternatives or waive a formal test for
applicants with special circumstances or in cases of hardship.[17]
4.18
In its submission to the inquiry, HREOC submitted that the Minister's
determination of the proposed citizenship test under proposed section 23A
should be made a legislative instrument. HREOC argued that:
The importance of citizenship to Australia's future and its
implications for compliance with international human rights standards warrants
parliamentary scrutiny of any instrument creating a new citizenship test. This
oversight will enhance the credibility of the test process before it is applied
to prospective Australian citizens. Additional Parliamentary scrutiny will also
ensure that any provisions beyond the scope of the test initially foreseen by
Parliament when drafting the empowering act can be addressed.[18]
4.19
HREOC acknowledged that making the determination a disallowable
instrument could disclose the test questions. It proposed two possible
approaches to address that potential problem.
4.20
First, the Minister's determination might contain the full list of
potential questions and state that the test would comprise 20 questions drawn
at random from that list. HREOC submitted that there would be a mechanism for
ensuring scrutiny over the appropriateness of the questions but that even
though the questions would potentially be disclosed, an applicant would
effectively need to learn the answers to all of those questions.[19]
4.21
Alternatively, HREOC suggested that the Parliament might delineate in
the Bill between:
- the Minister's determination on the nature, form, source material and
essential features of the test; and
- the Minster's determination on the actual questions comprising the test.[20]
4.22
The Victorian Bar informed the committee that in Canada, although the Minister
is responsible for compiling the citizenship test, the Minister is guided by
the Citizenship Regulations 1993 which expand on what 'knowledge of
Canada and of the responsibilities of citizenship is to be tested'.[21]
The Victorian Bar submission elaborated on the contents of the Canadian
regulations as follows:
... regulation 15 describes what is to be tested, and it is all
'knowledge', not the 'acceptance of values' that is the theme of the Australian
Minister's second reading speech. Regulation 15 identifies the things of which
an applicant for Canadian citizenship is required to have a general
understanding: the right to run for elected office, and to vote in federal,
provincial and municipal elections; and the chief characteristics of Canadian
social, cultural and political history and geography.[22]
4.23
HREOC also referred to the Canadian legislation, noting that it 'more
closely confines ministerial discretion than that proposed by the Bill',[23]
but concluded that rather than adopt that example it would be preferable if the
test were a disallowable instrument.[24]
In answer to a question, a witness from HREOC acknowledged that the Parliament
would be able to disallow a regulation in its entirety, but would not be able
to amend it. The witness concluded that having a regulation tabled and having
the opportunity for debate might provide the people affected with some
assurance or comfort.[25]
Commencement
4.24
The Scrutiny of Bills Committee expressed concern that the provisions of
the Schedule are to commence on Proclamation, but that no time has been
specified within which the amendments must commence. That committee has sought
the Minister's advice as to whether it would be possible to make the necessary
arrangements for the test and for any computer systems needed to conduct the
test within a fixed period after Assent to limit the 'currently unfettered
discretion granted to the Minister'.[26]
4.25
The Department informed this committee that the Government intends to
commence testing on 17 September 2007 'subject to the passage of the
legislation through the Parliament and meeting logistical requirements within a
short time frame'.[27]
A Departmental witness told the committee during the public hearing on 16 July that
the Department is currently 'on track to meet this date'.[28]
Other drafting issues
4.26
Two other significant issues were raised in relation to the drafting of
the Bill.
Ambiguity about test questions
4.27
HREOC submitted that ambiguity exists in relation to whether the test
questions would necessarily be related to the eligibility criteria. HREOC
considered that proposed section 23A should be clarified, as it does not
specifically require the citizenship test to be related to the eligibility
criteria in paragraphs 21(2)(d), (e) and (f). HREOC recommended that, to avoid
any potential ambiguity, the wording of proposed subsection 23A(1) should be
amended to make clear that the content of any test is directly referable to the
criteria in paragraphs 21(2)(d),(e) and (f).[29]
4.28
In response to questions on this suggestion, the Department noted:
Proposed subsection 21(2A) expressly states that paragraphs
21(2)(d), (e) and (f) are taken to be satisfied, if and only, the person sat a
test approved in a determination under section 23A and proposed section 23A expressly
states that the Minister must by written determination approve a test for the
purposes of subsection 21(2A).
The department considers that there is no ambiguity and that it
is clear that the content of any test is directly referable to the criteria in
21(2)(d), (e) and (f). Indeed, a test approved under proposed subsection 23A(1)
may only be for the purposes of proposed subsection 21(2A) and those purposes
relate only to the criteria in 21(2)(d), (e) and (f).[30]
Eligibility criteria
4.29
Some witnesses submitted that under proposed subsection 23A(3) the Minister
would have an unfettered discretion to determine eligibility criteria for
persons sitting the test. HREOC, for example, suggested that proposed
subsection 23A(3) be removed from the Bill because that section would allow the
Minister's determination to set out additional eligibility criteria for sitting
the proposed test. HREOC submitted that, in view of the eligibility criteria in
subsection 21(2) of the Bill, there is no need to provide further criteria that
must be satisfied in order to sit the test. Ms Donaldson of HREOC described
this power as 'superfluous and unnecessary' and further submitted that:
The inclusion of additional eligibility criteria might lead to a
situation where the minister is able to block certain applicants from taking
the test despite these applicants satisfying all other eligibility criteria for
citizenship. [31]
4.30
The Department responded to this concern as follows:
... the concern is that a determination may establish eligibility
criteria that are inappropriate and unfair, with no parliamentary scrutiny and
no opportunity for disallowance. Our legal advice is that the determination
making power in proposed section 23A does not allow the minister to set
eligibility criteria for sitting the test that are inconsistent with the
provisions of the act and, in particular, with the general eligibility criteria
in subsection 21(2).
... The power is required for two purposes. One is to ensure that
the resources available for testing are used only for prospective citizens. The
second is to enable access to any special tests ... to be limited to those for
whom the special test is intended.
...To help alleviate the concerns about test eligibility criteria,
the government intends to amend the bill by inserting a note that will explain
that the power [to] set eligibility criteria to sit the test does not allow the
minister to set criteria that are inconsistent with the act and, in particular,
inconsistent with the general eligibility criteria for citizenship.[32]
Testing 'knowledge of Australia': content and nature of the test
4.31
As outlined in Chapter 2, the proposed citizenship test is expected to
be computer based and consist of 20 multiple-choice questions drawn randomly
from a large pool of confidential questions. Each test is expected to include
three questions on the responsibilities and privileges of Australian
citizenship, which must be answered correctly. The Department stated in its
submission that 'the test questions will assess knowledge of Australian
history, culture and values based on information contained in a citizenship
test resource book'.[33]
What are Australian values?
4.32
Concerns were raised during the committee's inquiry about the possible
content and potentially subjective nature of the proposed citizenship test
questions. In this context, many submissions were critical of the testing of
'Australian values'.[34]
4.33
As outlined earlier in this report, several submissions queried the
efficacy of the test as means of testing commitment to such values.[35]
Many also objected to the concept of 'values' as too subjective. For example,
the NSWCCL argued that:
There is no objective way to determine what are the 'common
values we share'...Virtually no values could be identified which are universally
held by Australian citizens.[36]
4.34
Similarly, the Centre for Human Rights Education at the Curtin
University of Technology was concerned that:
The idea of ‘Australian values’ is particularly subjective and
open to considerable manipulation and political skullduggery. On a practical
level we also query how such knowledge would be tested. How do we formulate a
multiple choice question that would adequately test and assess a person’s
“values”?[37]
4.35
Mr Sam Wong of the Canberra Multicultural Community Forum also told the
committee that:
It is almost impossible to draft questions to test Australian
values, particularly concerns like mateship, respect for freedom or commitment
to democracy. Testing people on common values, which implies that there is only
one set of Australian values and one type of Australian citizen, undermines the
vital role that multiculturalism and diversity play in Australian society.[38]
4.36
Several submissions pointed out that the government's discussion paper
on the citizenship test listed several values – such as freedom, democracy,
respect for the rule of law, equality, non-discrimination – which are not
uniquely Australian.[39]
FASSTT suggested that 'as such, there should not be an expectation that
potential citizens do not already hold these values'.[40]
4.37
There was also some discussion during the committee's inquiry as to the
extent to which Australia's Judeo‑Christian heritage should be
acknowledged and reflected in the proposed test. For example, the Centre for
Human Rights Education at the Curtin University of Technology was concerned
about:
...reports that the test will be focused on applicants
demonstrating an understanding of “Judeo-Christian” values and British/Western
traditions. Such values and traditions do not necessarily reflect the
multicultural composition of Australia today.[41]
4.38
However, the Australian Christian Lobby told the committee that it:
...strongly supports the Minister's comments that applicants
should be required to acknowledge Australia's Judeo-Christian heritage. This
does not require prospective citizens to share the Judeo-Christian faith, but
it would make clear that their new country's historical context is
Judeo-Christian, rather than of any other faith or ideology.[42]
4.39
In response to a question from the committee as to whether it would be
desirable to include in the test questions about Australia's Judeo-Christian
heritage, a departmental witness responded that:
... part of Australia and its history would go to our belief
system, so I imagine that that is an area that will be covered in the resource
book.[43]
English language issues
4.40
Another issue raised frequently in evidence was the requirement for
prospective citizens to demonstrate a basic knowledge of the English language.[44]
For example, it was felt that this requirement could discriminate against
prospective citizens from a non-English speaking background. It was also
pointed out that people with limited English skills can still make an important
contribution to Australian society.[45]
4.41
On the other hand, some witnesses felt that the requirement for a basic
knowledge of English was appropriate. For example, the Festival of Light Australia
submitted that 'before citizenship is granted, applicants should be required to
demonstrate a level of English sufficient to allow them to understand and
participate in the political process.'[46]
Similarly, Mr David Yates of the Australian Christian Lobby told the committee
that :
It is exactly the same as most other countries that have tests.
Again, Holland, the UK, Canada, the USA and South Korea all require a basic
understanding of their own native tongue. We do not see why it should be any
different in Australia. We do recognise that there are some people on the
humanitarian visa side who may not necessarily have a proficiency in English,
but to operate in the country we think it is common sense to at least have a
basic knowledge of English. So we strongly support that an outcome of becoming
a citizen requires that you do have a basic knowledge.[47]
4.42
The committee notes that paragraph 21(2)(e) of the Act currently
requires the Minister to be satisfied that an applicant for citizenship by
conferral has (among other things) a basic knowledge of English, and this
requirement is not being amended by the Bill.[48]
4.43
However, some submitters were concerned that the proposed test may
actually require more than a basic knowledge of English, and would therefore
exceed the requirements of the Act.[49]
For example, according to Professor Tim McNamara:
...if such a test were administered exclusively in English, and as
a written test, it would represent a de facto language test at a far higher
level than is required in the legislation and would also represent a literacy
test.[50]
4.44
In the same vein, Ms Adoniou of ACTA told the committee that the
proposed test questions would be 'an extraordinarily difficult English language
hurdle for people to jump over'.[51]
4.45
The NSWCCL suggested that the resource booklet supporting the test
should be available in various languages.[52]
The NSWCCL also suggested that the Bill should require the Minister to make the
citizenship test available in a language of the applicant's choice.[53]
4.46
A representative from the Department told the committee that the
resource booklet will only be made available in the English language, and 'the
fact that the test will be conducted in English makes it important that the
resource materials are based in English'.[54]
At the same time, the representative reiterated that applicants for
citizenship, including refugee and humanitarian entrants, are currently already
required to satisfy requirements that they have a basic understanding of
English and an adequate knowledge of their rights and responsibilities.[55]
4.47
The representative also suggested that the citizenship test and
application is 'part of a journey rather than simply a destination in itself'
and that:
The department is placing increasing and significant emphasis on
pre-visa or information at the time of visa. We are revamping material that has
existed for many years about life in Australia and soon we will be producing a
new document called Life in Australia. It will be available in a full range of
community languages and provide very similar information about life in Australia
as will be contained in the citizenship test book. People will have had access
to that sort of material in their own language or certainly in more than 20
languages some years before they have considered applying for citizenship. So I
think we regard citizenship as being the final step of fully participating in
the Australian community, but it follows many other steps that have occurred in
the journey of the person from being a visa applicant to becoming a prospective
citizen.[56]
Availability of questions and
supporting material
4.48
The fact that the proposed test questions and supporting resource
booklet have not been made publicly available was also an issue for some. For
example, the Castan Centre observed that it is difficult to comment on the
validity of the test when very little is known about the content of the test
itself:
This lack of specific information clouds the ability of the
community and Parliament to properly assess and debate this new proposal.[57]
4.49
Others also suggested that the resource booklet and test questions
should be subject to a public consultation process.[58]
4.50
Professor Rubenstein raised with the committee the issue of the legal validity
of the test. She informed the committee that the Department acknowledges that
in order for the test to be lawful it must be within the scope of the Act, but
that given that the questions will not be made public, there is no avenue
available to allow for scrutiny of whether the test people sit is in fact
lawful. In her view, it would be preferable that the test questions be made
public as a matter of transparency and legal accountability given that the test
is a threshold test for such an important legal status.[59]
4.51
However, as outlined in Chapter 2, the Department told the committee
that the test questions would be kept confidential on the basis that this would
discourage rote learning of the answers.[60]
4.52
In response to the committee's request for examples of the sorts of test
questions that might be asked, a representative of the Department told the
committee that the questions had not yet been written. However, the
representative further stated that:
I would prefer not to get into speculation as to what a question
might or might not be, but I think there is sufficient information in the
public domain from statements by the minister for people who have an interest
in this matter to be quite clear that we are talking about questions that go to
Australia, our values, history, geography, political system and national
symbols. That will become more apparent when the test book is soon released. It
is not the intention of the government to release the questions.[61]
4.53
The representative also told the committee that the test questions would
be drafted by consultants and that:
Once the resource book is launched or released by the minister
then the resource book will go to the consultants. They will start drafting a
bank of questions based on the content of the resource book. That bank will go
through processes that the development of questions for any testing regime will
go through. The final set of questions will end up in the IT system that will
run the test and that system will randomly generate 20 questions for each test-taker.[62]
Resourcing and alternatives
4.54
Several submissions suggested that the resources spent on implementation
of the proposed citizenship test could be better spent on improving settlement,
orientation, language and education programs for new migrants.[63]
Many felt that such 'programs are more likely to achieve the aim of increased
knowledge of Australia than imposing a formal citizenship test'.[64]
4.55
For example, Professor Williams submitted that:
Questions need to be asked about whether the money spent on this
test could be better used on other types of education and programs that might
have a longer term impact. There may well be better ways of producing a more
harmonious and cohesive community based upon shared knowledge and values.[65]
4.56
Similarly, Mr Wong of the Canberra Multicultural Community Forum
expressed the opinion that:
There are more practical and effective ways of using funds that
will be spent on developing, administering and monitoring the proposed test—for
example, on English language classes, ongoing community integration programs,
employment skills programs, community support services, reciprocity
programs—such as volunteer and community participation agreements—or a range of
social cohesion or education programs. The focus of any citizenship funds
should be on ensuring successful settlement and on ongoing support to ensure
good citizenship, rather than on one-off multiple-choice tests.[66]
4.57
The Refugee Council of Australia also proposed that the funding for the
citizenship test should be reallocated to allow a further expansion of English
language services. In this context, the Refugee Council suggested that the
Australian Government consider expanding the eligibility for English language
training to include refugees on temporary protection visas — who currently do
not have access to federally-funded English language courses.[67]
4.58
Others, such as the Ethnic Communities' Council of Victoria and the B'nai
B'rith Anti-Defamation Commission, suggested that current programs could be
improved by allowing more flexible delivery and providing childcare, to allow
greater access for migrants with family and employment commitments.[68]
The B'nai B'rith Anti-Defamation Commission felt that 'this would be a far more
appropriate expenditure than spending money on an untested, educationally
dubious process'.[69]
4.59
Some suggested that completion of a civics education course could be
required as an alternative to undertaking the proposed test, particularly for
people given an exemption from the test.[70]
The NSWCCL, in suggesting that the Bill should provide alternatives to the
test, pointed out that:
For example, in the UK, citizenship applicants who have not
attained a certain level of proficiency in English can satisfy the citizenship
test requirement by attending an English for Speakers of Other Languages course
which covers citizenship materials. In this system, the focus is on educating
instead of screening future citizens.[71]
4.60
Several witnesses felt that, in order to achieve the proposed policy
objectives of the Bill, the citizenship test could be replaced altogether with
a requirement for prospective citizenship applicants to complete a relevant
course. For example, Dr Ben Saul of the Sydney Centre for International and
Global Law recommended that, instead of the test, it would be preferable:
...to engage potential citizens in a course, a series of seminars,
or other program of instruction, over a period of time, in which they can
genuinely learn about the rights and responsibilities of citizens, and the
political community which they hope to shortly join. Participatory learning
through civics education classes has a much greater chance of cultivating a
deep and lasting knowledge of Australia than a one-off test...[72]
4.61
Australian Lawyers for Human Rights (ALHR) suggested that this course
could be modelled on the Adult Migrant English Program course entitled 'Let's
participate: A course in Australian citizenship'. In their view:
...that mode of imparting knowledge about Australian society
should be preferred over a citizenship test as one which places comparatively
less emphasis on rote learning and offers more opportunities for participation
and discussion about Australian society and what it means to be an Australian
citizen.[73]
4.62
However, Professor Tim McNamara warned that while such courses may have
a beneficial impact:
The British experience is that while there is a strong demand
for such courses, there are unfortunately long waiting lists for them. Proper
provision for such courses would need to be made if they are to represent a
realistic alternative.[74]
4.63
A representative of the Department pointed out that the government was
already administering a range of programs in this area, including the Adult
Migrant English Program. He also noted that there were a number of programs
being run by other Departments, such as the Language, Literacy and Numeracy
program and the Workplace English Language and Literacy Program (run by the
Department of Education, Science and Training). The representative told the
committee that 'when you take all programs across all portfolios, the estimated
outcome for 2006-07 is in the order of $285 million'.[75]
Other issues
Fee increase
4.64
A few submissions noted that the citizenship application fee would
double for those sitting the proposed citizenship test – from $120 to $240.
National Legal Aid was concerned that those needing to take the test multiple
times might pay additional fees.[76]
The NSWCCL was concerned that the fee 'might cause financial hardship or even
preclude some applicants from applying for citizenship'.[77]
The Council suggested that there should be a fee waiver for those on low
incomes, and that any charges should be conditional on receiving citizenship.[78]
RACS suggested that the additional fee would have a 'particularly harsh impact
on refugees unable to easily afford this additional expense'.[79]
4.65
On the same note, the Australian Christian Lobby submitted that:
The fees charged for the citizenship test should be set
carefully so that the cost does not deter applicants. It would be unfair for
citizenship to be available to those who can afford to pay for the test, but
denied to those with lower incomes.[80]
4.66
On learning that the fee would be $240, Mr Yates from the Australian
Christian Lobby told the committee that they felt this fee was a 'fair price'.[81]
4.67
In response to questioning on this issue, the Department told the
committee that the fee would only be charged once, no matter how many times a
person sat the citizenship test, because:
The payment does not actually become ‘eligible’ until the person
applies for citizenship, which is after they have successfully completed the
test. They approach us and sit the test, and if they fail they can simply
continue to sit it. When they are in receipt of a test result that says they
have passed, they can then lodge their citizenship application and that brings
with it the application fee.[82]
4.68
The Department also noted that fee concessions and exemptions are
available. For example, a concession fee of $40 would be available to
applicants who sit the test and who have a permanent financial disadvantage and
are recipients of certain pensions from Centrelink or the Department of
Veterans' Affairs.[83]
Australia's international
obligations
4.69
Concerns were also expressed during the committee's inquiry that the Bill
could be inconsistent with Australia's international obligations.[84]
For example, the Office of the United Nations High Commissioner for Refugees
(UNHCR) pointed out that Australia has obligations under the 1951 Refugee
Convention[85]
and the 1954 Statelessness Convention[86]
to facilitate, rather than obstruct, the acquisition of citizenship by refugees
and stateless persons.[87]
It therefore recommended that any exemptions from the testing regime should be
extended to include refugees and stateless persons.[88]
4.70
ALHR suggested that the Bill could be in contravention of Australia's
obligations under the International Covenant on Civil and Political Rights
and the International Convention on the Elimination of all forms of Racial
Discrimination.[89]
That suggestion was based on the Bill's potential to operate in a discriminatory
manner against particular groups of people, such as people from a non‑English
speaking background. ALHR therefore recommended a number of amendments to the Bill
to address these concerns. These included that the Minister's determination be
a legislative instrument; that conditions be placed on the Minister's
determination power; and that the Minister be provided with a residual
discretion to waive the requirement to pass a test, where it might cause
unfairness.[90]
4.71
The committee notes that these suggestions were discussed earlier in
this chapter.
Other issues
4.72
Several submissions raised other concerns relating to citizenship, such
as the situations of former permanent residents who have been unable to obtain
Australian citizenship. The committee considers that these issues are outside
the scope of the changes proposed by the current Bill.[91]
Committee view
4.73
The committee acknowledges concerns that the Bill gives the Minister a
very broad discretion to formulate the proposed citizenship test, and it has
some reservations about this broad discretion. The committee also accepts that
there is some support for the notion that the citizenship test should be
subject to parliamentary scrutiny by way of a disallowable legislative instrument.
However, it is concerned about the practicality of that notion, given the
detail and possible frequent changes to those details that would be contained
in any such instrument, and the parliamentary process that would allow only for
disallowance of the entire instrument.
4.74
The committee is also mindful of the Department's claim that if the Minister's
determination were disallowable this would be likely to be a source of
uncertainty and confusion, especially where potential applicants for
citizenship had sat and passed a test that might then be disallowed. However, the
committee also notes HREOC's suggestion that section 15 of the Legislative
Instruments Act 2003 addresses any legal confusion, and that any
uncertainty that might arise during the time taken for a determination to be
considered by the Parliament could be addressed by administrative or
legislative means.
4.75
The committee has been informed that the government intends that the
test questions will only test knowledge of matters that will be based on
material in a published resource book. The committee is reassured by the
Department's evidence that the test questions will need to be consistent with
the legislation.
4.76
However, the committee has also been informed that the Australian
Government proposes that the test questions themselves will be kept
confidential. The committee acknowledges the Department's evidence that this
will discourage rote‑learning of the questions and answers, but notes
that candidates would need to learn by rote over 200 questions.
4.77
Given the apparent level of community disquiet about the questions that
might be included in the test, and that, as a general rule, delegated
legislation should be transparent and disallowable, the committee suggests that
the test questions be tabled in the Parliament to provide additional
reassurance to those concerned. It would also help to ensure transparency and
accountability of the proposed regime. The committee does not, however,
consider that the test questions should be disallowable.
Recommendation 2
4.78
The committee recommends that the proposed citizenship test questions be
tabled in parliament.
4.79
In relation to other drafting issues, the committee welcomes the Department's
intention to clarify certain ambiguities in the Bill. The committee supports the
proposal to insert a note in the Bill to explain that the power to set
eligibility criteria to sit the test does not allow the Minister to set
criteria that are inconsistent with the Act or the general eligibility criteria
for citizenship.
4.80
However, the committee is still concerned that proposed subsection
23A(1) does not specifically require that the test be related to the
eligibility criteria in paragraphs 21 (2)(d),(e) and (f). Despite the
Department's evidence, the committee considers that this provision is
ambiguous, and that it would be appropriate for the Bill to be amended to
clarify this ambiguity.
Recommendation 3
4.81
The committee recommends that proposed subsection 23A(1) of the Bill be
amended to specifically require that the test relate to the eligibility
criteria in paragraphs 21 (2)(d),(e) and (f).
4.82
The committee is disappointed that the proposed resource booklet, upon
which the test questions will be based, had not been finalised and made
publicly available by the time of the inquiry. As a result the committee finds
it somewhat difficult to comment on the nature and content of the proposed
citizenship test. The committee encourages the government to finalise and
release the resource booklet as soon as practicable.
4.83
As to concerns about the requirements for a basic knowledge of the
English language, the committee notes that this is a requirement in the
existing Act. The committee further considers that any concerns about the
nature and content of the test, and whether the test proves to be more
difficult to pass for certain groups within society, is a matter that can be
assessed as part of the review proposed in recommendation 1.
4.84
The committee also considers it important that migrants be given
adequate support and resources to enable them to pass the test. Indeed, the
committee recognises the broader importance of resourcing for settlement,
orientation, language and education programs for new migrants. The committee
acknowledges the Department's evidence on this issue and recognises that the
government is already devoting considerable resources to these areas, including
on English language training programs such as the Adult Migrant English
Program, and on settlement programs, particularly for refugee and humanitarian
entrants.
4.85
Finally, the committee notes the Department's evidence on the proposed
fee increase for those who sit the citizenship test. The committee is
comfortable with the proposed fee increase for those who sit the proposed
citizenship test, particularly in light of the fee concessions that are available.
The committee is also reassured by the Department's advice that the fee will
only be payable once, no matter how many times a person sits the citizenship test.
Recommendation 4
4.86
Subject to the preceding recommendations, the committee recommends that
the Bill be passed.
Senator Guy Barnett
Chair
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