The Australian Legislation Amendment (Strengthening the Requirements for
Australian Citizenship and Other Measures) Bill 2017 (the bill) is a concerning
piece of legislation. It contains a number of measures that are unfair,
unnecessary, and risk undermining Australia's reputation as a welcoming and
inclusive multicultural society. What is more, the Government has not
adequately made its case for many of these reforms.
In its majority report, the committee makes the extraordinary and
illogical assertion that 'as a percentage of the overall adult population of
Australia the number of those objecting to the proposed bill is very low and that
this can lead to the assumption that most Australians support tightening and
strengthening the citizenship regime'. We do not accept this proposition, as
the number and content of submissions cannot be extrapolated as representing
the views of the greater population.
Most Australians are fair-minded and would not support putting
additional and unwarranted hurdles in front of aspiring Australian citizens who
are law abiding members of our society and who make a valuable contribution.
The bill shifts the goalposts for tens of thousands of permanent
residents who thought they were on track for Australian citizenship. According
to the Department of Immigration and Border Protection (the Department),
between 20 April 2017 and 31 July 2017, 50,940 citizenship applications were
lodged for processing.
As at 16 July 2017, 47,328 people who had lodged an application (on or after 20
April) would be affected by the retrospective nature of the proposed changes.
The Nick Xenophon Team (NXT) does not support the retrospective nature
of the government's citizenship reforms. It notes the committee's
recommendation that the bill ought to contain transitional provisions for
people who held permanent residency visas on or before 20 April 2017 so that
the current residency requirements continue to apply to this cohort of
citizenship applicants. However, NXT is of the view that any changes proposed
through this bill should operate prospectively only.
Based on the evidence provided, the Department has not been able to determine
the number of people likely to be affected by the proposed English language
competency test. In addition, the Government has not been able to justify how
it determined that the International English Language Testing System (IELTS)
Band 6 was the most appropriate measure of an applicant's English competency
skills nor has it been able to satisfy concerns around the adverse impacts the
changes will have on existing permanent residents.
The committee has expressed concern at the prospect of would-be
Australians being excluded from citizenship as a result of the high benchmark
the Government has set via the English language test requirements. It is
particularly noteworthy that in one of its three recommendations it has
cautioned against the adoption of a standard of English that many current
citizens could not reach.
NXT considers that if an English language test is to be incorporated in
citizenship applications then it should not set the bar any higher than
currently exists in the citizenship test, as it already requires a functional
level of English to understand and complete.
The bill also proposes to provide the Minister for Immigration and
Border Protection with unprecedented and unfettered discretionary powers which
could be used to override decisions of the Administrative Appeals Tribunal (AAT)
and overturn grants of citizenship. NXT is extremely concerned that these
measures could deny applicants due process.
In its report, the committee supports the government's view that
Minsters are ultimately responsible to the Australian people whereas the AAT,
along with the Australian Human Rights Commission, are 'accountable to no one'.
This view undermines the integrity of the tribunal process. It also ignores
the fact that decisions of the AAT are subject to judicial review and the
inherent protection that process provides.
Additionally, the bill proposes to remove automatic citizenship rights
for children who were born in Australia and have lived here until their 10th
birthday. Children captured by the changes will remain stateless and be denied
the most basic rights and protections despite having been born and raised in
The bill proposes limiting the citizenship test to three attempts and
those who fail their third attempt are barred from sitting the test again for
two years. The committee suggests it would be worth considering allowing
additional tests on a cost-recovery basis. NXT considers there should be no cap
on the number of times an applicant can sit the test.
Proposed subsection 46(5) of the bill provides that the Minister may
determine an Australian Values Statement and any requirements relating to that
Statement. A determination made under that subsection will be a legislative
instrument however it will not be subject to disallowance.
NXT agrees that an Australian Values Statement that underpins
Australia's core multicultural values could prove a beneficial tool in the
citizenship process. However, the development of any such Statement needs to
be the subject of considered and measured parliamentary debate. It is not
appropriate that this function be exercised by the Executive without
appropriate parliamentary approval.
By the same token, the criteria for the proposed integration assessment,
to weigh whether an applicant has sufficiently 'integrated into the Australian
community', should also be properly debated and determined by Parliament.
That, for the reasons stated above, the bill not be passed in its
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