Laurie Ferguson (Reid, Australian Labor Party, Parliamentary Secretary for Multicultural Affairs and Settlement Services) Share this | Hansard source

I present the explanatory memorandum to the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 and move:

That this bill be now read a second time.

This bill amends the Australian Citizenship Act 2007 to implement the recommendations of the Australian Citizenship Test Review Committee that were agreed to by the government and to strengthen the eligibility requirements for citizenship by conferral for applicants under 18 years of age.

The bill also amends the act to provide for a reduced period of residence for certain persons in special circumstances to allow such persons to be eligible to become an Australian citizen.

In particular, schedule 1 to the bill:

• provides that certain applicants may be eligible for citizenship by conferral without a requirement to sit a test if the person has a permanent or enduring physical or mental incapacity which means that they are not capable of understanding the nature of the application; demonstrating a basic knowledge of English; or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship;
• provides that the citizenship test must be successfully completed within a period specified by the minister in a written determination; and
• provides that to be eligible for citizenship by conferral, applicants who are under 18 years of age must be permanent residents at both the time of application and the time of decision.

Further, schedule 2 to the bill provides for a special residence requirement for persons seeking to engage in specified activities that are of benefit to Australia and for certain persons engaged in particular kinds of work requiring frequent travel outside Australia.

In April 2008 the Minister for Immigration and Citizenship appointed an independent committee to review the operation and effectiveness of the citizenship test.

Six months after the test was introduced it was timely to assess the effectiveness of the citizenship test. During this time there were also a number of concerns raised with the minister, predominantly fears that the test had created an unintended barrier for the more vulnerable migrants in our community to be eligible to become Australian citizens.

The Citizenship Test Review Committee was commissioned to examine the operation of the citizenship test since its introduction on 1 October 2007 and identify whether there were ways to improve the administration of the test and its effectiveness as the pathway for residents to become Australian citizens. The review committee undertook extensive community consultations before compiling their report and recommendations.

In its report, Moving forward: improving pathways to citizenship, the review committee made 34 recommendations to the government. The recommendations of the review committee focused on improvements to the content and administration of the test, on the citizenship application process and on ensuring that vulnerable and disadvantaged people were not excluded from becoming citizens because of the test.

The government wants a citizenship test that is part of a meaningful pathway to citizenship for all those aspiring to become Australians. It should fill our new citizens with confidence about their role in this society and about how they can contribute to making this nation vibrant and strong.

The government reforms to the citizenship test aim to encourage prospective citizens to learn and understand the rights and responsibilities we all share as Australians.

On 22 November 2008, the government announced its response to the review committee’s report, which has received widespread community support. This bill implements those recommendations agreed to by the government that require changes to the act.

The central finding of the review, which the government has endorsed, is that the pledge of commitment should be the centrepiece of citizenship testing.

By focusing on the pledge of commitment the government has placed democratic beliefs, responsibilities and privileges of Australian citizenship, and the requirement to uphold and obey the laws of Australia at the heart of the citizenship test.

The review committee recommended that the citizenship resource book and test questions be revised to reflect the new focus on the pledge of commitment.

The government has engaged educational and civic experts to revise the resource book and test questions. The resource book has been developed in two separate sections: of testable and non-testable information. The testable information will be based on Australia’s democratic beliefs and values, the responsibilities and privileges of Australian citizenship, and Australia’s system of government—the values outlined in the pledge of commitment.

In revising the resource book the government accepted the review committee’s finding that the level of English used in the resource book was closer to ‘native speaker’ rather than the legislative requirement of ‘basic English’. The revised resource book has been written in ‘basic English’ to make it more easily understood, particularly for those people from a non-English-speaking background.

The review committee expressed concern that there are no effective alternative pathways to sitting a computer based test which was, in effect, marginalising some people from becoming Australian citizens.

The government is committed to ensuring people who have a commitment to Australia, and who have a strong desire to become Australian citizens, have the opportunity to do so. To address this issue the government will develop a citizenship course which will provide an alternative pathway to citizenship for a small group of disadvantaged people whose literacy skills will never be sufficient to sit and pass a formal computer test, even though they understand English.

The government is committed to ensuring that new migrants have the best possible chance of understanding their responsibilities, rights and privileges as an Australian citizen. The citizenship course will be based on the material in the resource book. Participants will still be assessed on the legislative requirements of possessing an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship, as well as on possessing a basic knowledge of the English language.

The citizenship course will ensure that the citizenship test caters for the needs of a broader range of people, particularly those who are disadvantaged and vulnerable.

In conjunction with these improvements, the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 seeks to implement the committee recommendations that were agreed to by the government and that require legislative change.

First, the bill proposes to amend the Australian Citizenship Act 2007 to allow for a small group of people who have a permanent or enduring physical or mental incapacity to be eligible for citizenship without having to first sit a citizenship test. These people will not have to sit a test if, at the time they make an application, they have a physical or mental incapacity which means that they are not capable of understanding the nature of the application; or demonstrating a basic knowledge of English; or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

This proposed amendment will ensure that the most vulnerable and disadvantaged of citizenship applicants will have a legitimate pathway to citizenship.

While the number of people affected by this amendment will be small, without it the government would be excluding a section of the Australian community from Australian citizenship.

In the past, these clients have often failed the citizenship test multiple times but had no other means of meeting the legal requirements for conferral of citizenship. Concerns have also been expressed that some of these vulnerable people are fearful of doing the test and therefore are choosing not to become Australian citizens as a result.

Secondly, the bill proposes to amend the act to streamline the citizenship application process. This is in response to the review committee’s observation that the current process of multiple steps was inefficient for clients and the department. The proposed changes will streamline the application and test process so that most applicants will only need to come to the department once. This will make the process more responsive and provide timely outcomes for clients as well as making better use of departmental resources.

Currently a person must sit and pass the citizenship test before making an application. As a result, many clients sit the test months before they will meet the residence requirements for citizenship, which results in multiple contact with the department.

The proposed amendments will allow most clients to make an appointment to lodge an application and subsequently have their application approved on the same day they successfully complete the test if all the legal requirements for citizenship are met.

The proposed amendments will also allow a time to be specified in a written determination made by the minister within which a person may commence a test and successfully complete a test after making an application. This is to make sure that an application can be refused if a person does not successfully complete a citizenship test within a reasonable period of time.

It is also proposed that the act be amended to require applicants for citizenship by conferral who are under the age of 18 to be permanent residents at the time of application and time of decision. The current act allows any person under the age of 18 to be eligible for Australian citizenship by conferral. This is a provision that was carried over from the Australian Citizenship Act 1948, the old act; however, the provision is being exploited and is undermining both the citizenship and migration programs.

Proposed amendments in this bill will require that applicants under the age of 18 must be permanent residents to be eligible for citizenship by conferral. This is consistent with current policy. This amendment will prevent children who are in Australia unlawfully, or who, along with their families, have exhausted all migration options, from applying for citizenship in an attempt to prevent their removal from Australia.

The amendments will ensure the integrity and consistency of the citizenship and migration programs.

These amendments bring about key changes that complement reforms to the citizenship test that are already underway. The bill will lead to a more streamlined citizenship process and one that will deliver fair and reasonable outcomes to clients of the department.

Schedule 2 to the bill seeks to amend the act to provide for a special residence requirement for persons seeking to engage in specified activities that are of benefit to Australia and certain persons engaged in particular kinds of work requiring regular travel outside Australia.

In particular the amendments contained in the bill will provide:

• a special residence requirement for certain people who need to be an Australian citizen in order to engage in a specified activity that would be of benefit to Australia, and the applicant needs to be an Australian citizen in order to engage in that activity and there is insufficient time for the person to satisfy the current residence requirement in section 22 of the act; and
• a special residence requirement for certain persons engaged in particular kinds of work requiring regular travel outside Australia who are unable to satisfy the current residence requirement in section 22 of the act because of the kind of work they are engaged in.

A discretion was available under the old act, which allowed the minister to grant Australian citizenship to a person who: was a permanent resident; was not present in Australia; and was engaged in activities outside Australia that the minister considered were beneficial to the interests of Australia.

This discretion was repealed when the act was introduced in 2007 because it was being used in unintended ways and became subject to substantial fraud and misrepresentation. There was little to limit the use of the discretion and its application relied on a subjective test.

However, at the same time the previous government changed the residence requirement for citizenship from two years permanent residence in Australia to four years lawful residence in Australia (either as a temporary or permanent resident), including at least 12 months as a permanent resident.

As a result of not including this discretion in the 2007 act and increasing the residence requirement a small group of people with special circumstances have been significantly disadvantaged, including elite sportspeople, international airline pilots, offshore oil rig workers and people requiring high-level security clearances. The act no longer enables the minister any discretion in relation to the current residence requirement to allow people in these special circumstances to be eligible for Australian citizenship.

The new special residence requirements in the bill will allow a pathway for the above groups to be eligible to become Australian citizens. In all cases the applicant will need to meet all of the other legal requirements for conferral of citizenship including being of good character and passing a citizenship test.

New section 22A introduces a special residence requirement for persons seeking to engage in specified activities that are of benefit to Australia.

This special residence requirement will allow applicants to be physically present in Australia for a shorter period of time compared with the general residence requirement. This is intended to provide greater flexibility for applicants who are seeking to engage in specified activities that would be of benefit to Australia, such as representing Australia at the Olympic Games where citizenship is a requirement to represent one’s country. Activities that could also be specified include those that may require an appropriate national security classification.

New section 22B introduces a special residence requirement for persons engaged in particular kinds of work involving frequent travel outside Australia, and who are unable to meet the general residence requirement because of the kind of work they are engaged in.

The amendments also insert new section 22C, which provides for the minister to make a legislative instrument specifying activities which require a person to be an Australian citizen which are of benefit to Australia.

The types of activities specified under this legislative instrument will, for example, include representing Australia in a particular sporting activity at the Olympic Games and the Paralympic Games for which citizenship is a requirement to represent one’s country. Activities that could also be specified include those that may require an appropriate national security classification.

The legislative instrument will also specify the organisations who may give the minister a notice that a person has a reasonable prospect of being engaged in a specified activity—for example, the Australian Olympic Committee, the Australian Paralympic Committee or a government agency involved in matters of national security.

The kinds of work to be specified under this legislative instrument will, for example, include those which require a person to frequently travel outside Australia because of that work, such as international airline pilots, crew members of a ship and offshore oil rig workers.

The proposed special residence requirements provide clearly defined criteria for eligibility in law, which has been agreed to by parliament and, unlike the discretion under the old act, leaves no room for ambiguity as to who will be eligible for consideration under these provisions.

At this point I would like to briefly comment on the amendments which were moved by the opposition in Senate.

The opposition proposed that the minister should have a personal power, which he could not delegate, to grant citizenship to a person if he is satisfied that granting citizenship to the person would be in the Australian public interest because of the exceptional circumstances of the case, as long as the applicant was not present in Australia as an unlawful noncitizen at any time during the period of two years immediately before the day the applicant made the application and the person has sat and successfully completed a citizenship test.

It is clear that the shadow minister does not understand the government’s amendments or how the act works. The government amendments in the Senate did not represent a free pass to citizenship but rather a special residency requirement for a small group of people who do not have a pathway to citizenship.

The government amendments will still require applicants to meet all of the eligibility requirements in section 21 of the act, such as having a permanent visa, being of good character and having an ongoing commitment to Australia.

The opposition’s proposed amendments would have introduced so broad a discretion that it would have contained no permanent resident requirement, no time to be spent in Australia, no character requirements and no requirement to reside in or maintain a close and continuing association with Australia. These are all standard requirements for the conferral of citizenship, which the opposition would have thrown out the window. Australian citizenship is too valuable and important to be the subject of the personal opinion of the minister of the day—what one minister thinks appropriate will vary from minister to minister.

Indeed this amendment would create an industry for vexatious citizenship applications that the minister would need to consider. Anyone could put in an application for citizenship which would have to be personally seen by the minister and there would be absolutely no restriction on who could apply as long as you had a visa—you would not even have to be in Australia.

Also by moving these amendments they have completely contradicted themselves. They supported the government in closing off the ministerial discretion for children under 18 because it was being misused by a group of people who want to prolong their stay in Australia, yet they proposed to create another power which would allow the same people to apply to the minister for citizenship under a different provision.

On the other hand, the amendments that I have introduced by way of a special residence requirement for people engaged in specified activities or a particular kind of work provides a specific legal framework and clear eligibility requirements which will ensure that the special residence requirement is used appropriately and only applied to the group of people for which it is intended.

It will also ensure that applicants have spent some time in Australia and that they have an ongoing connection with Australia.

The proposed special residence requirements aim to strike 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 yet who genuinely ‘call Australia home’ and wish to formalise that relationship with Australia by becoming Australian citizens.

The bill deserves the support of all members of this parliament.

I commend the bill to the chamber.

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