Alex Hawke (Mitchell, Liberal Party) Share this | Hansard source

It is a privilege to support the Australian Citizenship and Other Legislation Amendment Bill 2014. These amendments are absolutely necessary for strengthening program integrity. It is interesting that the opposition are copping out on taking a position in this chamber. If they took the time to examine these amendments in the same way that they examined the counter-terrorism foreign fighters legislation, they would see these are necessary amendments to strengthen the immigration program and to ensure that we have some flexibility and available benchmarks to deal with some of the different situations that have arisen with immigration and Australian citizenship acts over the years.

I am speaking about three basic things. There is strengthening program integrity, underlining the importance of connection to Australia and improving decision making. Through the various amendments to different bills we see in this place, the Labor Party continue to rail against the idea of ministerial discretion and giving ministers the available tools to make flexible and correct decision in relation to our immigration program. Why would the Labor Party want a legislative instrument rather than the available minister with ministerial discretion, with flexible legislation and with more ability to make a judgement? We are dealing with human nature. Given that we are dealing with the capacity of human beings to be all possible things that human beings can be, there is not really a set of laws, or an inflexible set of rules, that you can use to govern character. Allowing the minister to have more capacity for judgement, subject to the appropriate scrutinies of the parliament, the media and other forms in our democracy, is an improvement to the regime of Australian citizenship.

The member for Greenway would know, as I know, there are many issues with character when people migrate to Australia. Even this week, I was approached about a constituent matter. A person had obtained permanent residency and had done something I regard as very duplicitous in character and wrong by Australian standards. Once obtaining permanent residency, there is no way of winding back the clock and assessing that wrong act or that wrong character. All of us in this place know what I am talking about. As local members, we have it all the time. There are people who come here and do the wrong thing to obtain citizenship. It is just a fact. It may be a small proportion but it happens. Currently, there are not many ways of dealing with that, often to the detriment of other citizens here who are the victims of much of this activity.

Within the group of things I have outlined, you will see there are some important reasons why the government is moving these amendments. I hope the opposition in the Senate come to a sensible position and understand that ministers do need more discretion and more capacity to exercise reasonable and flexible judgements about character.

In relation to strengthening program integrity, the measures we are putting forward in this bill allow the minister to revoke citizenship on the grounds of an individual's engagement in fraud or misrepresentation in the migration or citizenship process—there would barely be a member in here who could argue against such a thing. This provision is without the requirement, of course, for a prior conviction of relevant criminal offences. In the past, a relevant criminal offence had to be proven, but a fraud or misrepresentation in this process can now be used by the minister to revoke citizenship on these grounds. That would be a big strengthening of the program's integrity. It is a good measure. There are not going to be mass revocations of citizenship on these grounds, but it is going to give that extra flexibility to the minister when there has been proven fraud or misrepresentation by a person of poor character to revoke citizenship. That is a good thing.

There is the provision to extend the good character requirement to include applicants under 18 years of age. This takes note of the fact that people under 18 can also be of bad character or do the wrong thing. This provision gives the minister some flexibility to deal with situations whereas at the moment that does not apply. There is the provision to include the bar on approval for criminal offences in all citizenship streams—that is self-explanatory—and to include references to contemporary sentencing practices in the bar on approval for criminal offences. Importantly, this area of amendment enables the minister to cancel approval of citizenship by conferral prior to commitment if the applicant is no longer eligible. It is a small thing but, once again, enables the minister to use that discretion and judgement in a situation that cannot be defined, or a multiplicity of situations that cannot be defined, in every single statute or piece of legislation.

The legislation will also allow the minister to defer the applicant taking the pledge of commitment for up to two years and align the grounds for deferral with the grounds for cancellation of approval. It also requires those who automatically acquire citizenship on adoption in Australia to have commenced the adoption process before turning 18 years of age—something which I think would have widespread community support. It is a reasonable standard—a standard that we can all support and something that I think the opposition could also see their way to supporting. Importantly, strengthening program integrity will bring consistency to the resumption of citizenship by requiring a standardised 12-month waiting period—again, bringing standards and consistency to this important area of law.

The second area I mentioned was underlining the importance of connection to Australia. This bill will clarify the residence requirements by specifying when the four-year lawful period commences and that the 12-month permanent residency must be continuous. Making this continuous and dealing with these loophole situations where the 12 months required for permanent residence could be dealt with in another country or a person who was not actually a permanent resident in practice is very, very important.

The bill also clarifies who is covered by the partner discretion in the residence requirement and inserts a minimal physical presence requirement for those claiming the partner discretion for absences from Australia. In my view, tightening these areas is particularly important. As local members, one of the most tricky areas in citizenship and permanent residence is where people who have been of bad character have entered a relationship deliberately just to obtain permanent residency or citizenship. In situations where we see people taking advantage of loopholes in our law to obtain permanent residency—those who come here and then turn out to be of bad character or badly treat an Australian citizen—we really do need to be more realistic about the complexity of relationships and the complexity of human nature. That is why I support these provisions, which remove some of these loopholes, and, particularly, clarify who is covered by the partner discretion in the residency requirement.

This bill will also provide the power to make a legislative instrument setting out when a period of unlawful presence may be treated as lawful presence. That gives the minister the power to make a legislative instrument and gives the minister more discretion, which I support. It does not really matter which immigration minister you look at over the years—ministers for immigration in the Keating era, in the Howard era and right through to today—I think you would find that they would argue in favour of these sorts of abilities for the minister to deal with very complex and difficult situations. For the minister to have the ability to outline when a period of unlawful presence could be treated as lawful is just dealing with the realities of a modern immigration system where people can end up being unlawful here for any range of reasons but may be required to have a lawful presence to obtain permanent residency or citizenship.

The bill also puts beyond doubt that children born in Australia to parents with diplomatic privileges and immunities are not eligible for Australian citizenship. I think it is important that we clarify these things. It is an improvement to our Australian Citizenship Act. There is no automatic right for the children of people with diplomatic privileges and immunities who are not eligible for Australian citizenship to be eligible. That clarification is common sense.

You will also see in this bill improved decision-making—that is, making holders of prescribed visas eligible for citizenship by conferral before entering Australia and enabling the use an disclosure of personal information about a client under the Migration Act 1956 to be used for the purposes of the Citizenship Act and vice versa. When you look through the provisions in this area of improved decision-making, you see that the personal decisions made by the minister in the public interest are not subject to the Merits Review Tribunal. We have seen some cases in this regard where the minister does need power to set aside decisions—whether they be from the Merits Review Tribunal or the Administrative Appeals Tribunal—concerning character and identity if it is in the public interest. Again, giving more ministerial discretion, subject to parliamentary and public scrutiny, is going to benefit our ministers, our democracy and the administration of this act. I think if any shadow minister here thought about this and thought about the powers they would need in administering this area as a minister, they would see that this is the kind of flexibility and improved arrangements that any minister for immigration needs to ensure that they are dealing with the complex human situations that arise in immigration. I strongly support these improved decision-making powers.

The changes to the act proposed in this bill are necessary to uphold the value of Australian citizenship and preserve the integrity of the citizenship program. It is the government's view that the amendments to this act will improve the delivery of the program. The bill will clarify the residence requirement and the partner discretion for absences from Australia. It will also allow concerns about whether an applicant is truly eligible for citizenship to be fully investigated prior to taking the pledge. There are cases which do need to be fully investigated before any Australian would like potential citizens to be taking the pledge. The bill will bring consistency to the character and criminal offence provisions across all application streams. Having consistent character requirements across all immigration streams will be very important in improving integrity. The bill also allows for consideration of all circumstances when deciding whether a citizen by descent should not have been registered and should be able to remain an Australian citizen.

There have been some queries about what new powers the bill proposes. This is something that I addressed earlier, but I will again spell out a couple of things, because I think they are important. The power to revoke citizenship for misrepresentation or fraud without prior conviction is something that I regard as extremely important because there is not always a prior conviction yet there has been misrepresentation and fraud. Again, I would stress to every member of this House and to people in the Senate—who may not be so engaged with constituents as members of this House—that there is not a member in this House who deals on a day-to-day basis with an immigration caseload through their office who would not be aware of a case of citizenship where there has been misrepresentation or fraud. There would not be one member of this chamber who could come forward and say, 'I'm unaware of a case of this nature.'

Given that we are all aware of them and given that anyone who deals with the immigration program on a day-to-day basis at any length is aware of many of these cases, often in very sad or tragic situations, this new power for a minister—any minister; not only a minister currently in government but also ministers into the future—to revoke citizenship for those misrepresentations and frauds on people is, again, a very defensible and common-sense implementation of a very big improvement to the integrity of the immigration system. It allows the minister to take the action when the minister is satisfied that fraud has occurred, even if there has been no criminal prosecution. We know that there are often difficulties in obtaining criminal prosecutions in different legal regimes and jurisdictions. Here in Australia there may not be enough evidence to prosecute, and yet we are certain that a misrepresentation or fraud has occurred.

So, I strongly support these provisions that enhance program integrity. These amendments are the next common-sense evolution of the Australian Citizenship Act 2007. They ought to be supported by members opposite, and I note that the member for Greenway was saying that there was no real position in this chamber but that it would be reflected in the Senate. I urge members of the opposition simply to look at this through the eyes of a competent immigration minister seeking to have maximum flexibility to make the right decisions in the interests of all Australians and in the interests of a strong immigration program.

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