Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

I move opposition amendment (1) on sheet 5925 revised:

(1)    Page 5 (after line 27), at the end of the bill, add:

Schedule 2—Amendments relating to additional categories

Australian Citizenship Act 2007

1  After subsection 21(8)

Insert:

Australian public interest

        (9)    A person is eligible to become an Australian citizen if the Minister is satisfied that:

             (a)    granting a certificate of Australian citizenship to the person would be in the Australian public interest because of exceptional circumstances relating to the applicant; and

             (b)    the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application; and

             (c)    the person has met the requirements of subsection (2A).

      (10)    As soon as practicable after the end of each financial year, the Department must publish on its website and present to each House of the Parliament a list of all the persons who received citizenship under subsection (9) during the year and the reasons for the decision.

Individuals employed overseas

      (11)    A person is eligible to become an Australian citizen if the Minister is satisfied that:

             (a)    at the time the person made the application, the person is engaged in work that requires them to regularly travel outside Australia; and

             (b)    the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application; and

             (c)    the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and

             (d)    the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and

             (e)    the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and

              (f)    the person has demonstrated they would suffer significant hardship or disadvantage if they did not receive citizenship; and

             (g)    the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and

             (h)    the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application; and

              (i)    the person has met the requirements of subsection (2A).

      (12)    As soon as practicable after the end of each financial year, the Department must publish on its website and present to each House of the Parliament a list of all the persons who received citizenship under subsection (11) during the year and the reasons for the decision.

2  After section 22

Insert:

22A  Minister’s decision—Australian public interest

        (1)    The Minister’s decision under subsection 24(1) in relation to a person who is eligible to become an Australian citizen under subsection 21(9) cannot be delegated.

        (2)    In making a decision referred to in subsection (1) the Minister must give consideration to the fact that the applicant’s becoming an Australian citizen would be of benefit to Australia.

Ministerial discretion—administrative error

        (3)    For the purposes of paragraph 21(9)(b), the Minister may treat a period as one in which the applicant was not present in Australia as an unlawful non-citizen if the Minister considers the applicant was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

22B  Minister’s decision—individuals employed overseas

        (1)    The Minister’s decision under subsection 24(1) in relation to a person who is eligible to become an Australian citizen under subsection 21(11) cannot be delegated.

        (2)    In making a decision referred to in subsection (1) the Minister must give consideration to the fact that the person would suffer significant hardship or disadvantage if they did not receive citizenship.

Confinement in prison or psychiatric institution

        (3)    Subject to subsection (4), the person is taken not to satisfy paragraph 21(11)(c) if, at any time during the 4 year period mentioned in that paragraph, the person was:

             (a)    confined in a prison; or

             (b)    confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

        (4)    The Minister may decide that subsection (3) does not apply in relation to the person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.

Ministerial discretion—administrative error

        (5)    For the purposes of paragraph 21(11)(g), the Minister may treat a period as one in which the person was a permanent resident if the Minister considers that, because of an administrative error, the person was not a permanent resident during that period.

        (6)    For the purposes of paragraph 21(11)(h), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

3  Subsection 24(1A)

Omit “or (8)”, substitute “, (8), (9) or (11)”.

4  Subsection 24(2)

Omit “or (7)”, substitute “, (7), (9) or (11)”.

First, in relation to additional categories, I just say at the outset that we have sought to have discussions with the government in relation to this to express our concerns. The citizenship legislation introduced on 25 June this year was referred to committee on the same day, and then on 31 August Minister Evans wrote to the Leader of the Opposition advising him of his intention to move certain amendments to the bill, without providing copies of those amendments. At that time, the bill was being considered by the Senate Standing Committee on Legal and Constitutional Affairs and, as a consequence of that, those amendments—indeed, including amendment (4), which had been reported in the press as a way to fast-track citizenship for athletes, and provisions in relation to offshore workers—were not actually scrutinised by the committee. That is regrettable. Regrettably, those amendments were not released until 14 September and, of course, we are debating that now.

The point that I would like to make is that it is very clear from the media reports in relation to this that this issue has been around for a couple of years. Indeed, if you look at the Australian Financial Review of 1 September, there is a comment by Mr Craig Tiley, from Tennis Australia, who said he is delighted with the changes. Of course, we had not yet been advised of that, but the minister saw fit to make the announcement. Mr Craig Tiley said that, during the last couple of years, Tennis Australia had been in regular discussion with the government regarding the quandary that faces some tennis players. So could I just put on the record that for two years this has been an issue for the government and, all of a sudden, we are doing a major review of the citizenship legislation. The committee did not even get the amendments and then, all of a sudden, we are presented with a supposed fait accompli so that we can assist some athletes who have a problem in getting their citizenship.

This has been a very rushed situation. We know why it is rushed. It is rushed because a Russian ice skater, Ms Borodulina, who was the subject of media reports, has to obtain Australian citizenship by 22 September if she is to be eligible to compete for Australia at the 2010 Winter Olympics. From our perspective, the coalition does not believe that access to citizenship in Australia should be manipulated to allow non-citizen elite athletes to represent Australia on the grounds that they are medal prospects. In reality, this is not about the person in question. I understand that there are other people, including a tennis player, potentially in this situation. We are concerned that the minister is aiming to codify a shortened residency requirement, which in effect has been nominated by two sporting bodies. The government will say this is not an amendment about athletes, that it is really much broader, but in the end the schedules will refer to the Australian Olympic Committee and Tennis Australia, so it is very clear that this is an amendment about athletes.

Our amendments go to using a very limited avenue, not just for athletes. There are potentially other individuals who could be in circumstances where this is going to be necessary. I will come to that in a moment. We have reservations about compromising the integrity and value of citizenship in order that somebody who could potentially win a medal or a tennis cup for Australia is suddenly fast-tracked and a whole raft of changes are brought in, couched and camouflaged in other ways, but ultimately for that specific objective. There could be individuals who may well find themselves pushed out of a team because a better, non-citizen performer from another country is keen to represent Australia. It was interesting to see that, when the announcement was made on 31 August, the minister, in the company of the ice skater, said he hoped that the changes would lead to more gold medals for Australia at sporting events, but the next day the AAP reported the minister saying, ‘No, it’s not,’ when asked if the new measures were a grab for gold.

The coalition’s amendments go to reintroducing a ministerial discretion allowing a variation in citizenship requirements for noncitizens whose fast-tracked citizenship can be shown to be in the national interest but who must still pass the citizenship test. Most importantly, that intervention would not be able to be delegated and any decision would need to be published on the departmental website and tabled in parliament annually. The amendment proposes that granting a certificate of Australian citizenship to the person would be in the Australian public interest because of exceptional circumstances. That is an important criterion that adds a degree of transparency that we think is going to be necessary. Of course, there are consequential amendments that come from that. As I said, it is a non-delegatable decision-making process to be undertaken by the minister.

Regarding the government’s foreshadowed amendments (1) to (3) on sheet BM241 revised, relating to offshore workers, these amendments discount the residency requirements for citizenship for professionals whose work takes them regularly offshore. We offer an amendment to the bill to create a second, limited ministerial discretion which allows residency concessions for offshore workers who demonstrate significant hardship or disadvantage, with eligibility for intervention consideration only after they have been normally resident in Australia for four years prior to their application and have spent a minimum of 16 months of those four years in Australia—and, of course, they must also pass the citizenship test. The minister’s intervention would not be able to be delegated and any decision would have to be both published on the departmental website and tabled in parliament annually. We believe that this is a fair and just alternative for those who may have strong ties to Australia and who may, for example, have lived in Australia for some time, have Australian relatives and make a significant contribution to Australian society.

Our proposed amendment entitles individuals employed overseas to similar consideration to that foreshadowed by the government. We set out certain parameters, which I have broadly outlined, and they are more specifically defined. Again, we offer a transparency process—because the important criteria here is that the person would suffer significant hardship or disadvantage if they did not receive citizenship. We feel that that limits the discretion of the minister and will apply only to a very limited category of persons.

The government’s amendments create this new special residence requirement. They create a whole new category, a whole new framework, a whole new appeals structure and a whole new avenue by which people can enter Australia. I have to recognise that when this measure was originally proposed it was exclusively focused towards sportspeople and athletes and now at least has been couched in more generic terms to pertain to persons engaged in activities that are of benefit to Australia. Yes, there may be similarities, but the reality is that, when you look at the schedules and at the organisations that would be listed, we really are talking about sporting bodies. This regime could equally be established to relate to persons engaged in particular kinds of work requiring overseas travel.

The government will say that in the past there was a discretion which was removed because there had been abuse of this discretion within the department. I clearly understand that that abuse may well have occurred because it was a delegated power. We think that conferring a non-delegable decision-making power on the minister under such limited and confined circumstances will afford the necessary degree of transparency and oversight that will enable it to be used only in those very exceptional circumstances. Take, for example, a scientist—somebody who spends a lot of time overseas. Of course there is a public interest in exceptional circumstances being recognised because that scientist may spend a lot of time overseas. I just mention that by way of example. There could be other situations where the applicant undertakes activities that mean that he or she spends a lot of time outside Australia but there are also exceptional circumstances that are, in effect, one-off. Our amendment recognises that there may be very limited exceptional circumstances where this power could be used in the Australian public interest.

To conclude, it is a pity that the Senate through its Legal and Constitutional Affairs Legislation Committee was not afforded the opportunity for proper scrutiny of this. It is very clear from media reports, and particularly some letters to the editor that I have come across, that there is concern in the public that we would be seen to be manipulating the system to cater for the specific circumstance I discussed earlier. I have no doubts that the time frame that has been provided by the government, in its proposed item 22A, is specifically targeted to assist this particular person because she needs citizenship by 22 September so that she can compete at the Olympics. We think that, from a broader perspective, if we are talking about exceptional circumstances where there is a public benefit, that is a different ball game to creating a whole new framework which is really going to make it easier for fast-tracking an individual applicant or group of individual applicants. On that basis, I ask the Senate to consider the opposition’s amendment as a compromise which does address those exceptional needs but does not create a much broader framework for potential abuse.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I would just like to indicate that the Greens will not be supporting the opposition’s amendment. Having said that, I understand where the opposition are coming from. I have raised similar concerns. But I believe that the amendments put forward by the government deal with the majority of our concerns, so we will be supporting those amendments rather than the opposition’s.

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

I want to take this opportunity to explain why the government will not be supporting the opposition’s proposal. Essentially, the Senate is being asked to accept that the minister should have personal discretion to give citizenship to a person, if it would be in Australia’s public interest to do so, because of the exceptional circumstances of the case—as long as the applicant was not present in Australia as an unlawful non-citizen at any time during the two-year period immediately before the day on which the applicant made the application.

This proposal provides extraordinarily broad discretion. It contains no permanent residence requirement. It is not proposed that spending time in Australia prior to the application be a condition. There is no requirement with regard to a character assessment. There is no requirement for the applicant to reside in or to maintain a close and continuing association with Australia. It is a fly-by-night scheme. These are all standard requirements that you would expect when it comes to the question of conferring citizenship. Indeed, this amendment would likely create an industry for migration agents and vexatious citizenship applicants. The minister would have to consider them all on the basis of personal discretion. Where is the justice in that?

The proposed amendment is similar to the discretionary arrangements that are contained in the 1948 act, which was repealed with the introduction of the 2007 act. That was repealed because it was difficult to administer in a transparent and objective manner and it was open to misrepresentation and fraud. On the other hand, the government amendments for a special residence requirement for people engaged in specific activities provide a specific legal framework and a very clear eligibility requirement. These will ensure that special residence requirements are used appropriately and are only applied to the groups of people for which they are intended. They will ensure that applicants have spent some time in Australia and have an ongoing connection with the country. The coalition is talking about broadening discretion.

On the other hand, their other proposal before us regards any child, regardless of their immigration status, being able to apply for citizenship. They are suggesting that that discretion should be removed. I can only presume that the opposition are well intended here. People will use this discretion when they have exhausted all other options, including ministerial intervention, and when removal from Australia is imminent. While the coalition are correctly supporting closing one door, it would appear that they are looking to open yet another. So their approach is quite inconsistent.

The government is seeking through this bill to provide for special residence requirements for certain persons who need to be Australian citizens in order to engage in specific activity that would be of benefit to this country and where there is insufficient time for them to satisfy the current requirements of section 22 of the Australian Citizenship Act. The measures proposed provide for special residence requirements for certain persons who are unable to satisfy the current residence requirement of section 22 to engage in particular kinds of work requiring regular travel outside of Australia. They also provide for the current residence requirement in section 22 of the act to be defined as the ‘general residence requirement’, to distinguish it from the special residence requirement that would otherwise apply.

The provision for certain ministerial discretions in relation to administrative error and confinement in prison or in psychiatric institutions that already exists in the act will apply in relation to the special residence requirements. The amendments proposed by the government say that the minister may approve a person becoming an Australian citizen when the person is not present in Australia if the person satisfies the other requirements. The government is proposing that there be special residence requirements that provide the right balance in facilitating Australian citizenship for those who are unable to meet the general residence requirement due to the nature of their occupation, who genuinely call Australia home and who wish to formalise that relationship with Australia by becoming an Australian citizen. I ask the Senate to reject the opposition’s amendment.

Question put.

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

by leave—I move government amendments Nos (1), (2) and (3) on sheet Bm241 revised:

(1)    Clause 2, page 2 (at the end of the table), add:

(2)    Schedule 1, heading, page 3 (line 1), at the end of the heading, add “relating to citizenship test review etc.”.

(3)    Page 5 (after line 27), at the end of the Bill, add:

Schedule 2—Amendments relating to special residence requirement

Australian Citizenship Act 2007

1  Paragraph 21(2)(c)

Omit “residence requirement (see section 22)”, substitute “general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B)”.

2  Paragraph 21(3)(c)

Omit “residence requirement (see section 22)”, substitute “general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B)”.

3  Paragraph 21(4)(d)

Omit “residence requirement (see section 22)”, substitute “general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B)”.

4  Subsection 22(1)

Omit “residence requirement”, substitute “general residence requirement”.

Note:                The heading to section 22 is replaced by the heading “General residence requirement”.

5  After section 22

Insert:

22A  Special residence requirement—persons engaging in activities that are of benefit to Australia

        (1)    Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:

             (a)    the following apply:

                   (i)    the applicant is seeking to engage in an activity specified under subsection 22C(1);

                  (ii)    the applicant’s engagement in that activity would be of benefit to Australia;

                 (iii)    the applicant needs to be an Australian citizen in order to engage in that activity;

                 (iv)    in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and

             (b)    the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity; and

             (c)    the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and

             (d)    the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and

             (e)    the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and

              (f)    the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and

             (g)    the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.

Confinement in prison or psychiatric institution

        (2)    Subject to subsection (3), the applicant is taken not to satisfy paragraph (1)(c) if, at any time during the 2 year period mentioned in that paragraph, the applicant was:

             (a)    confined in a prison; or

             (b)    confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the applicant.

        (3)    The Minister may decide that subsection (2) does not apply in relation to the applicant if, taking into account the circumstances that resulted in the applicant’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the applicant.

Ministerial discretion—administrative error

        (4)    For the purposes of paragraph (1)(f), the Minister may treat a period as one in which the applicant was a permanent resident if the Minister considers that, because of an administrative error, the applicant was not a permanent resident during that period.

        (5)    For the purposes of paragraph (1)(g), the Minister may treat a period as one in which the applicant was not present in Australia as an unlawful non-citizen if the Minister considers the applicant was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

22B  Special residence requirement—persons engaged in particular kinds of work requiring regular travel outside Australia

        (1)    Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:

             (a)    at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and

             (b)    the following apply:

                   (i)    the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;

                  (ii)    for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and

             (c)    the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and

             (d)    the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and

             (e)    the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and

              (f)    the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and

             (g)    the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application.

Confinement in prison or psychiatric institution

        (2)    Subject to subsection (3), the person is taken not to satisfy paragraph (1)(c) if, at any time during the 4 year period mentioned in that paragraph, the person was:

             (a)    confined in a prison; or

             (b)    confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

        (3)    The Minister may decide that subsection (2) does not apply in relation to the person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.

Ministerial discretion—administrative error

        (4)    For the purposes of paragraph (1)(f), the Minister may treat a period as one in which the person was a permanent resident if the Minister considers that, because of an administrative error, the person was not a permanent resident during that period.

        (5)    For the purposes of paragraph (1)(g), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

22C  Special residence requirement—legislative instruments

        (1)    The Minister may, by legislative instrument, specify activities for the purposes of subparagraph 22A(1)(a)(i).

        (2)    The Minister may, by legislative instrument, specify organisations for the purposes of paragraph 22A(1)(b).

        (3)    The Minister may, by legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a).

6  After paragraph 24(5)(a)

Insert:

           (aa)    the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and

Australian Citizenship (Transitionals and Consequentials) Act 2007

7  Item 5B of Schedule 3

Omit “residence requirement”, substitute “general residence requirement”.

8  Application

The amendments made by this Schedule apply in relation to applications made on or after the commencement of this Schedule.

Question put.