COALITION SENATORS' DISSENTING REPORT
1.1
The main issues that arose during the inquiry went to:
-
The scope of the exception to the requirement to take the
citizenship test and in particular, the exception for physical or mental
incapacity resulting from torture or trauma outside Australia – s.21(3A) and
(3B) amendments; and
-
Citizenship applications for minors – s.21(5) amendment
1.2
Other issues regarding streamlining the administration of the test were
non controversial, noting the concerns expressed by the Department about
seeking to overcome people sitting the test well in advance of being eligible
to apply for citizenship.
Opposition to the provisions
seeking to remove the requirement for a 'permanent physical or mental
incapacity'
1.3
Coalition Senators oppose the provisions seeking to remove the
requirement for a 'permanent physical or mental incapacity' and maintain that
the requirement in the exception for 'permanent physical or mental incapacity'
be retained.
1.4
The amendments proposed in the Bill extend the exemption to people who
have a physical or mental incapacity at the time of making the application that
is as a result of the person having suffered torture or trauma outside
Australia. Such persons would still need to satisfy the other criteria, e.g. 4
years residence in Australia.
1.5
Concerns were raised at the hearing about the introduction of extending
the exemption to one category of people, namely those who had suffered torture
or trauma outside Australia, to the exclusion of others, for example, women who
had suffered torture and trauma in Australia as a consequence of trafficking.
It must be noted that the current provisions refer to 'permanent physical or
mental incapacity' without qualification of where or how that incapacity
resulted.
1.6
Coalition Senators are concerned that in expressly referring to torture
or trauma, the Bill inappropriately and unsuccessfully attempts to frame
exclusion from citizenship testing around one (and only one) possible cause
(torture and trauma) giving rise to the effect (a mental state) when the latter
(the effect) is the appropriate trigger for exclusion, irrespective of its
cause.
1.7
This approach is unnecessarily emotive, inflammatory, and
unconstructive. Most importantly, it takes the Bill way 'off the mark'.
1.8
The Government has not adequately made the case in favour of their Bill
for a range of reasons but in particular as the definition of 'trauma' is so
vague and ambiguous; it is almost meaningless and could potentially open the
floodgates. This also is unacceptable.
Australian Citizenship Test Review
Committee suggested amendment
1.9
The Australian Citizenship Test Review Committee (the Review Committee) suggested
the following simpler amendment That s.21(d) be amended to read:
'has a physical or mental incapacity at that time means the
person is not capable due to the physical or mental incapacity of:
Understanding the nature of the
application at that time; or
Demonstrating a basic knowledge of
the English language at that time; or
Demonstrating an adequate
knowledge of Australia and of the responsibilities and privileges of Australian
citizenship at that time.'
1.10
According to the Committee, s.23A sets out the process for a citizenship
test and it states in the note that the test must be related to the eligibility
criteria referred to in paragraphs 21(2)(d) understanding of the nature of the
application, (e) a basic knowledge of the English language and (f) an adequate
knowledge of Australia and the responsibilities and privileges of Australian
citizenship. It argued that 'mental incapacity' ought not to be confined to
just understanding the nature of the application at that time, but ought to
refer to all three criteria, all of which are relevant to citizenship testing.
1.11
The methodology suggested by the Review Committee is simpler and non
discriminatory. Coalition senators suggest that the Review Committee's
proposed amendment be adopted with the addition of the word 'permanent'.
Accordingly, we suggest that s.21(3A) and (3B) of the Bill be removed and
substituted with the following amendment to s.21(d):
'has a permanent physical or mental incapacity at that time
means the person is not capable due to the permanent physical or mental
incapacity of:
Understanding the nature of the
application at that time; or
Demonstrating a basic knowledge of
the English language at that time; or
Demonstrating an adequate
knowledge of Australia and of the responsibilities and privileges of Australian
citizenship at that time.'
1.12
Coalition Senators have concerns that the dropping of word 'permanent'
has the potential to extend this exemption to a much wider group of people. There
is a big difference between a 'permanent physical or mental incapacity' and a 'physical
or mental incapacity'.
1.13
At present the Act also allows exemption from sitting the test for
people who suffer from permanent physical and psychological disorders of any
origin. Removal of 'permanent' from the definition will lead to confusion
about eligibility and definitions about 'permanent' and 'temporary' incapacity.
We have no information about how many people may be in this category. Regrettably,
this figure was not able to be provided by DIAC at the hearing because the
Department did not know and indeed, have been unable to provide an answer in
questions on notice. This is disturbing and unacceptable that the Government
has no idea of the consequences intended or unintended, if the Bill passes.
1.14
Permanent residents including refugees are required to have lived in
Australia for four years before eligibility for citizenship. If those granted
protection visas are still suffering from a 'temporary' incapacity after four
years, then arguably their condition could be considered 'permanent', and the
current law allows for those people to be exempt from the test.
1.15
There is concern that this new exemption could be used by some to bypass
the requirement to have adequate English and knowledge of Australian values, in
particular to limit the opportunity for women to learn English, a point that
was canvassed by a number of the witnesses at the hearing.
1.16
It is particularly important for humanitarian and refugee entrants who
suffer a range of other obstacles if an incentive to learn English language is
removed.
Recommendation to bolster 'assistance'
to sit the test
1.17
Current provisions in the legislation allow people who have a physical
or cognitive impairment (whether permanent or temporary) that prevents them
from sitting the Standard Test to sit an 'assisted test'. In the 'assisted
test', an administrator may talk the person through the computer-based test.
The test administrator may read aloud the questions and multiple choice
answers, ask the person which answer they think is correct and select on the
computer the answer that the person indicates. An applicant has 90 minutes to
complete the test which is double the time allotted for others.
1.18
Coalition senators support extending 'assistance' to people to help them
pass the test rather than opening up the category to a wider group of people,
and hence, potential exploitation.
Why is there a need to change the
citizenship test given the extremely high pass rate?
1.19
Coalition senators also question the need for changes to the citizenship
test, given the high pass rates. DIAC officials were unable to explain the
inadequacy of the current pass rate such as it needed changes, as is seen from
the following exchange:
Senator Fierravanti-Wells—Given the very, very high
levels of pass of the citizenship test—it is 97 per cent, from your
snapshot—why do we need to change the test? Even in the humanitarian
categories, it is 84 per cent. I just do not understand.
Ms Forster—I am sure you are aware, from previous
discussions—
Senator Fierravanti-Wells—I am aware of the report.
Ms Forster—of the review of the committee. The
government has stated its response to that review and it has indeed moved on
with the test.
Senator Fierravanti-Wells—Perhaps I can ask the
question in another way. What statistics are you relying upon that make a pass
rate of 97 per cent inadequate, so that you have to change it completely? In other
words, what are you trying to achieve? Are you trying to achieve 100 per cent?
What is so materially and statistically wrong with the current system? What
are you trying to achieve here?
Ms Larkins—I think the government’s intent was to respond
to the findings of the committee review, which found that, for a small subset
of those people, they were disadvantaged in sitting the test.
Senator Fierravanti-Wells—In other words, make it
easier for everybody.[1]
1.20
The focus on extending the exception resulted in questioning of the high
pass rates of the citizenship test and the number of conferrals of citizenship.
Given the high pass rates, it is clear that the Government’s changes are
politically motivated. Reference was made during the hearing to the statistics
contained in the Australian Citizenship Test Snapshot Report, July 2009. During
the hearing, much was made that the humanitarian program had an 84% pass rate –
roughly about 10,500 of 12,727 for period 1 October 2007 to 30 June 2009. The
following points were made clear during the hearing:
-
It was pointed out that humanitarian applicants sit the test on
average 1.9 times;
-
The 16% non-pass rate reflects people who come back (roughly
2,000) and sit the test at a subsequent time (can sit as many times as you need
to); and
-
DIAC agreed it was wrong to say that there were hundreds of
people who are never going to sit the test for fear of failure to pass
(contrary to other evidence given)
1.21
Citizenship can be acquired through application or conferral – in 7
situations:
-
General eligibility criteria and successfully completing a
citizenship test – ss.21(2) and (2A);
-
Permanent physical or mental incapacity – s.21(3) - exempt from
citizenship test;
-
Person aged 60 or over or has hearing, speech or sight impairment
– s.21(4) - exempt from citizenship test;
-
Person aged under 18 – s.21(5) - exempt from citizenship test;
-
Person born to a former Australian citizen – s.21(6) - exempt
from citizenship test;
-
Person born in Papua – s.21(7) - exempt from citizenship test;
and
-
Statelessness – s.21(8) - exempt from citizenship test
1.22
DIAC have advised that in the period 1 October 2007 to 30 June 2009, 168,293
people were conferred citizenship under s.21 either through application or
conferral. DIAC was asked for a breakdown of the figures for each of the 7
situations, but has advised that:
We are not readily able to provide a breakdown of numbers
against each subsection of the Act.[2]
1.23
Coalition Senators find this remarkable. How can the Government seek to
change provisions such as these and not have the statistical analysis to base
its assertions of the need for change?
1.24
However, DIAC were able to count the number of people whose citizenship
was conferred under the permanent physical or mental incapacity provisions of
s.21(3) for the period 1 October 2007 to 30 June 2009 – 366 people
applied and of these, 189 were conferred citizenship. It is amazing
that DIAC cannot provide a breakdown and hence, Coalition Senators have sought
to work this out from other information:
-
For the period 1 October 2007 to 30 June 2009, 138,155
people sat the Citizenship test and 133,925 passed on the first or
subsequent attempt (these are people in the general eligibility criteria
ss.21(2) and (2A) referred to above (namely 1 of the 7 situations above)
-
Hence, one would assume that the difference between 168,293 and
133,925 i.e. 34,368 represents people who had citizenship conferred on
them (presumably the other 6 situations referred to above)
-
This would then mean that roughly 20% or 1 in 5 people
acquire citizenship by conferral rather than applying and sitting the test.
1.25
Accordingly, Coalition Senators are concerned that s.21 conferrals other
than for general eligibility criteria applicants who sit the citizenship test
is already considerable and ought not be extended further.
Amendments to waive residency
requirements for athletes and some other categories
1.26
Coalition Senators also note that on 31 August 2009 in a letter to our
Committee Senator The Hon Chris Evans, Minister for Immigration and
Citizenship, advised his intent to amend the Government's Bill with a not
insignificant amendment (relating to a residence requirement for certain
persons) of four (4) pages and notes of seven (7) pages which will now have to
be considered on its merits.
1.27
The onus is on the Government to outline the urgency of waiving
residency requirements for athletes and other categories of people. In the
ordinary course, the proposed amendments ought to have been open to proper
examination and scrutiny by the Committee and groups and organisations wishing
to make submissions on the amendments. A separate inquiry on the amendments
would also have afforded interested groups, organisations and members of the
public the opportunity to comment on the changes.
Senator Guy Barnett
Deputy Chair
Senator Mary Jo Fisher
Senator Concetta
Fierravanti-Wells
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