Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Link to this | Hansard source

by leave—I move the following opposition amendment circulated in my name:

        Clause 21, page 18 (line 2), after “17”, insert “or 18”.

Some of these issues have already been raised in the right of reply by the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs. This amendment, while not confined explicitly to the Maltese community, effectively impacts upon the Maltese community. The government has been willing to regulate and fix the citizenship problems for the parents who were forced to relinquish their citizenship, but it has chosen not to do so for their children. For those people covered under section 17 the situation is fixed for their children, but for those people covered under section 18 it is not. No credible argument was offered in that right of reply to explain the reason for that distinction.

Labor believes we are opening up a ludicrous situation where the argument from the government is, ‘They don’t have a connection to Australia,’ yet their parents have enough of a connection to Australia that we are moving special legislation to try to fix their citizenship. What is their connection to Australia? Labor calls it ‘mum and dad’. That is the connection to Australia. I know that the government is having trouble reconciling just how close that nexus is, but Labor views it as a particularly close nexus. I will leave it to the member for Gorton and the member for Prospect to raise some specific examples they have seen in the Maltese communities in their own electorates.

We should not be opening up a ludicrous position simply to cover for an error made by a previous minister. This was an announcement made in 2004, as I understand it, by the minister who is now the Minister for Vocational and Technical Education, who made a gaffe and said the government would fix it for one but not for another. It is not fair to somebody who is now running pretty much half the operations of the Department of Immigration and Multicultural Affairs to have to cover for a junior minister who mucked things up. That is the only reason we are in this situation now. To be running an argument in the Parliament of Australia that there is not a sufficient nexus, when the nexus is called mum and dad, is a ludicrous situation that Labor oppose. We therefore seek what is a pretty modest amendment, I have to say: if we are fixing it for the parents, let us fix it for the kids in the same hit.

Andrew Robb (Goldstein, Liberal Party, Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs) Share this | Link to this | Hansard source

I do not wish to add a great deal to my comments in summing up a few minutes ago. I would just like, though, to make the point that the government sees—and also, as I said earlier, the Senate Legal and Constitutional Legislation Committee in its inquiry into these bills saw—a very clear distinction between those people affected by section 17 of the Australian Citizenship Act 1948 and those affected by section 18. The fact is that, for those who had been previously affected by section 17, it did not allow Australians to acquire another nationality and retain their Australian citizenship. Many people unknowingly lost their citizenship under that section, together with the right of access to Australian citizenship for their children, as a result of the application of Australian law. The impact of section 17 was recognised appropriately and addressed long ago, in 1984, and addressed conclusively with the repeal of that section by the parliament in 2002.

However, the circumstances of people who ceased to be Australian citizens under section 18 are totally different. It is a totally different matter. In this case, cessation of Australian citizenship was the result of an application. People had to physically make an application. In the case of former citizens in Malta, it was the result of a conscious decision of the individual in response to the laws of Malta. For all of those who took a conscious decision, we have sought appropriately in this legislation, and supported by those opposite, to redress that, and they will have the opportunity to take out Australian citizenship.

But for their children—who have never been here and have never been Australian citizens—we think that it is only appropriate that there be a conscious decision by those children to establish some real bonds with Australia if they are going to take out Australian citizenship; not to live in Malta, never come back to Australia and just go down to the embassy and get citizenship. But if they wish, these children who have never had a bond with Australia and were not born here—those who were born here will be eligible for citizenship—will have a pathway if they wish to be Australian citizens and their parents have taken out citizenship. They have to come to Australia and apply for citizenship. There is a pathway. If they wish to establish a bond then that is a good thing, and there is an opportunity here to do it. That is why we think—and the Senate committee thought—the legislation goes far enough, and it still provides an opportunity for those children who genuinely wish to become Australian citizens in due course. They have to establish some formal bond with Australia to do that.

Chris Bowen (Prospect, Australian Labor Party) Share this | Link to this | Hansard source

I would like to strongly support the amendment moved by the honourable member for Watson and express my disappointment in the remarks just made by the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs. I must say that many of those children of people who revoked their citizenship under section 18 will have found the parliamentary secretary’s contribution particularly insulting and disappointing, to hear that they have no bond with Australia. They will say they do have a bond with Australia, and they will be very disappointed to hear a senior representative of this government say they have no bond. Many of them have spent a lot of time in Australia. It is not true to say that they have left Australia and have no bond with Australia. They will be particularly insulted to hear that contribution.

The parliamentary secretary says: ‘Well, they revoked their citizenship, and therefore they cut their links with Australia.’ It is worth remembering the circumstances under which they were forced to do so. Under Maltese law at that time, they would not have been allowed to own property in Malta. They would not have been allowed to study in Malta. They would not have been allowed to work for the Maltese government.

The Maltese community makes a great contribution to this nation and has done for many years, but it is a community which still feels particular links with Malta. There are many Maltese people who move back and forth on a temporary basis between Malta and Australia. For the people who were forced into this position, thankfully the Maltese government have now changed that law. The Maltese government have seen the error of their ways; they have seen that it is possible to have a great and abiding loyalty to Australia and also a loyalty to Malta, but the Australian government is failing to make this correction. The parliamentary secretary says: ‘We have fixed it for people who revoke their citizenship. It’s okay if somebody revoked their citizenship—they can get it back. But we’re going to exclude the innocent son or daughter who had no say in whether their parents revoked their citizenship. If their parents lost their citizenship automatically, that is okay, but if their parents took a deliberate decision, forced onto them by Maltese law, then they are going to be excluded.’

The amendment moved by my honourable friend the member for Watson is a very simple one; it is not complex: insert ‘or 18’. It is only two words, but those two words would have a great impact for those 2,000 or 3,000 Maltese citizens who are very keen to see their existing bond with Australia certified and restored by citizenship. The parliamentary secretary’s predecessor and previous Minister for Citizenship and Multicultural Affairs, the member for Parkes, talked in his second reading speech about section 17 and made no mention of section 18. However, his predecessor, the minister for citizenship before him, the member for Moreton, announced that the government would fix section 18. He went out in a fanfare and was welcomed by the Maltese community. He said it in a speech at the Sydney Institute and no doubt sent out press releases to the Maltese papers. He said, ‘We will fix this for the children of people who renounced their citizenship under section 18.’

His successors, the member for Parkes and the member for Goldstein, have reneged on that commitment to the Maltese people for no good reason. They draw the false distinction and the false dichotomy that the children of people who lost their citizenship under section 17 can get their citizenship back but the children of people who revoked it under section 18 cannot. It is a false distinction; it is a disappointing one. The Maltese community in Australia—Australian-Maltese people—have a right to be very disappointed in this government and to say, ‘We have been let down and, frankly, we have been misled, because we were told by a minister in this government that this would be fixed.’

You would think from the parliamentary secretary’s contribution that these people are going to be some sort of a burden or a drain on Australian society if they are granted Australian citizenship. I say I have yet to find a Maltese-Australian who is a burden or a drain on Australia. Go and talk to the Maltese chicken farmers in my electorate and, no doubt, the electorate of the member for Gorton who have been working in Australia for 40 or 50 years and hear about their cousins or nephews and nieces who have been denied Australian citizenship. (Time expired)

Brendan O'Connor (Gorton, Australian Labor Party) Share this | Link to this | Hansard source

I associate myself with the comments made by the member for Watson and the member for Prospect. There seems no logic to this. There is no common sense in the government’s position when they suggest that they will fix the anomaly in sections 17 and 18 with respect to the parents and not fix the existing anomaly for the children of parents who come under those sections. I have been dealing with the Maltese community in my own electorate. I have had people contacting me from Malta who were born here and are seeking to come back here as citizens.

We should understand the history of this matter. As the member for Prospect indicated, people who were born here and went back to Malta were under duress when they chose to relinquish their Australian citizenship so they could remain in Malta. That law was a bad law. That was an onerous and unfair law in Malta, and it has been rectified. In 2004, the former minister for citizenship indicated that they would fix this anomaly for the parents who were coerced into relinquishing their citizenship so they could remain in Malta and for their children. The parliamentary secretary today has indicated that he will not do so because those children have no association with this country. As I think the member for Watson quite rightly said, could there be a stronger bond than being children of Australian citizens or of parents who were born in this country and are eligible to become Australian citizens? How can children who are minors be asked to wait and not be able to automatically become citizens when their parents are able to become citizens?

So I ask the parliamentary secretary if he believes that Lillian and Steve Schembri’s children, Glenn, Clint and Chereece—who are going to school in Kings Park, a suburb in my electorate—are not suitable to become Australian citizens. Could he explain to those parents why they are in a position to be eligible for citizenship but their three children are not? It is an illogical position for the government to suggest that it cannot accept the amendment moved by the member for Watson to include section 18 in clause 21 of the bill. Section 18 should be inserted. As I said in my first contribution on this matter, we are happy that the government has chosen to remove the anomaly that exists between those who renounce their citizenship in order to acquire and those who renounce in order to obtain. That is, we are happy that that anomaly in sections 17 and 18 will be rectified once this bill has been enacted, but we are not happy that the government has stopped short of removing all anomalies by treating the children of these two categories differently. There should be no distinction in the way in which the government treats these children that are residing in this country. Indeed, we realised there was an unfair provision with respect to the parents. Through this legislation, that will now be rectified but the one relating to the children will not be.

So I have to return to my electorate and explain to the Maltese community there that, whilst the government has fulfilled its undertaking to rectify the anomaly between sections 17 and 18 for the parents, it will not fix it for the children. Those parents who were forced to relinquish their citizenship because of an unfair law in Malta and who have returned here—Australian born, like Steve and Lillian Schembri—cannot tell their children that they can become Australian citizens like their parents. I think that is an awful situation to place those parents in, and I think the government should attend to this matter and fix the anomaly—or go out and explain to the Maltese community why it has decided to break its word to that community, because it is an absolute travesty and a disgraceful and contemptuous attitude towards the Maltese community in this country.

Question unresolved.

Harry Quick (Franklin, Independent) Share this | Link to this | Hansard source

(Mr Quick)—As the question is unresolved, in accordance with standing order 188, the question will be included in the report on the bill to the House.

Andrew Robb (Goldstein, Liberal Party, Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs) Share this | Link to this | Hansard source

by leave—I present a supplementary explanatory memorandum to the bill. I move government amendments (1) to (76):

(1)    Preamble, page 1 (line 4), before “formal”, insert “full and”.

(2)    Clause 2, page 2 (table item 2), omit “3”, substitute “2A”.

(3)    Page 3 (after line 3), after clause 2, insert:

               2A Simplified outline

                 The following is a simplified outline of this Act:

What this Act covers

This Act sets out how you become an Australian citizen, the circumstances in which you may cease to be a citizen and some other matters related to citizenship.

Becoming an Australian citizen

There are a range of ways you can become an Australian citizen.

Acquiring citizenship automatically

Generally, you become an Australian citizen automatically if you are born in Australia and one or both of your parents are Australian citizens or permanent residents when you are born.

There are some other, less common, ways of automatically becoming a citizen.

Division 1 of Part 2 has details about acquiring citizenship automatically.

Also, if you were a citizen under the old Act immediately before the day that this section commences, you will continue to be a citizen: see subsection 4(1).

Acquiring citizenship by application

The other way to become an Australian citizen is to apply to the Minister. This is covered by Division 2 of Part 2. There are 4 situations in which you can apply for citizenship.

The first is citizenship by descent. Generally, you would apply for this if you were born outside Australia and one or both of your parents were Australian citizens when you were born. Citizenship by descent is covered by Subdivision A.

The second is citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption: see Subdivision AA.

The third is citizenship by conferral. Generally, you would need to be a permanent resident and willing to make a pledge of commitment to apply for citizenship by conferral. There are some less common circumstances in which you can apply for citizenship by conferral. Citizenship by conferral is covered by Subdivision B.

The fourth is resuming citizenship. In certain cases where you previously ceased to be an Australian citizen, you can apply for your citizenship to resume. Resuming citizenship is covered by Subdivision C.

The Minister must be satisfied of your identity for you to acquire citizenship by application. Rules about identification are in Division 5 of Part 2.

The Minister may be required to refuse your application on national security grounds.

Ceasing to be an Australian citizen

There are a number of ways that you can cease to be an Australian citizen.

You can renounce your citizenship.

If you did not automatically become an Australian citizen, the Minister can revoke your citizenship in certain circumstances.

There are some other, less common, ways of ceasing to be a citizen.

Division 3 of Part 2 has details about ceasing to be a citizen.

Evidence that a person is an Australian citizen

You can apply to the Minister for evidence of your Australian citizenship. This is covered by Division 4 of Part 2.

Note:   Section 42 deals with authorised access to identifying information.

entrusted person means:

national security offence means:

                   (i)    the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;

                  (ii)    the person has not ceased to be an Australian citizen under this Act.

The most common way you become an Australian citizen under this Division is by being born in Australia and by having a parent who is an Australian citizen or a permanent resident at the time of your birth.

There are some other, less common, ways of becoming an Australian citizen under this Division. These cover:

•           citizenship by being born in Australia and by being ordinarily resident in Australia for the next 10 years: see section 12; and

•           citizenship by adoption: see section 13; and

•           citizenship for abandoned children: see section 14; and

•           citizenship by incorporation of territory: see section 15.

You may be eligible to become an Australian citizen under this Subdivision in 2 situations:

•           you were born outside Australia on or after 26 January 1949 and a parent of yours was an Australian citizen at the time of your birth: see subsection 16(2); or

•           you were born outside Australia or New Guinea before 26 January 1949 and a parent of yours was an Australian citizen on 26 January 1949: see subsection 16(3).

You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.

You must be eligible to be an Australian citizen to be approved.

The Minister may be required to refuse your application on grounds relating to:

•           non-satisfaction of identity: see subsection 17(3); or

•           national security: see subsections 17(4) to (4B); or

•           cessation of citizenship: see subsection 17(5).

You will be registered if the Minister approves you becoming an Australian citizen.

You do not become an Australian citizen, even if the Minister approves you becoming an Australian citizen, unless a parent of yours was an Australian citizen at a particular time: see section 19A.

National security

                   (i)    is not a national of any country; and

                  (ii)    is not a citizen of any country; and

Subdivision AA—Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption

You may be eligible to become an Australian citizen under this Subdivision if you are adopted outside Australia in accordance with the Hague Convention on Intercountry Adoption by at least 1 Australian citizen.

You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.

You must be eligible to be an Australian citizen to be approved. You may be refused citizenship even if you are eligible.

The Minister may be required to refuse your application on grounds relating to:

•           non-satisfaction of identity: see subsection 19D(4); or

•           national security: see subsections 19D(5) to (7); or

•           cessation of citizenship: see subsection 19D(8).

You will be registered if the Minister approves you becoming an Australian citizen.

Note:   Section 46 sets out application requirements (which may include the payment of a fee).

Eligibility

                   (i)    a person (the adopter) who is an Australian citizen at time of the adoption; or

                  (ii)    2 persons jointly, only one of whom (the adopter) is an Australian citizen at the time of the adoption; or

                 (iii)    2 persons jointly, both of whom (the adopters) are Australian citizens at the time of the adoption; and

Definitions

adoption compliance certificate has the same meaning as in the Intercountry Adoption regulations.

Convention country has the same meaning as in the Intercountry Adoption regulations.

Intercountry Adoption regulations means the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.

Identity

Note:   Division 5 contains the identity provisions.

National security

                   (i)    has been convicted of a national security offence; or

                  (ii)    has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to a period of imprisonment of at least 5 years; or

                   (i)    is not a national of any country; and

                  (ii)    is not a citizen of any country; and

                   (i)    the person was born in Australia; or

                  (ii)    the person was born outside Australia and, at the time of the person’s birth, the person had a parent who was an Australian citizen.

Cessation of citizenship

You may be eligible to become an Australian citizen under this Subdivision in 7 situations:

•           you satisfy the general eligibility criteria: see subsection 21(2); or

•           you have a permanent physical or mental incapacity: see subsection 21(3); or

•           you are aged 60 or over or have a hearing, speech or sight impairment: see subsection 21(4); or

•           you are aged under 18: see subsection 21(5); or

•           you were born to a former Australian citizen: see subsection 21(6); or

•           you were born in Papua: see subsection 21(7); or

•           you are a stateless person: see subsection 21(8).

You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.

You must be eligible to be an Australian citizen to be approved. You may be refused citizenship even if you are eligible.

The Minister may be required to refuse your application on grounds relating to:

•           non-satisfaction of identity: see subsection 24(3); or

•           national security: see subsections 24(4) to (4B); or

•           non-presence in Australia: see subsection 24(5); or

•           offences: see subsection 24(6); or

•           cessation of citizenship: see subsection 24(7).

You may need to make a pledge of commitment to become an Australian citizen.

Statelessness

                   (i)    is not a national of any country; and

                  (ii)    is not a citizen of any country; and

                   (i)    never been a national of any country; and

                  (ii)    never been a citizen of any country; and

                   (i)    does not have reasonable prospects of acquiring the nationality of a foreign country; and

                  (ii)    does not have reasonable prospects of acquiring the citizenship of a foreign country; and

                   (i)    never had reasonable prospects of acquiring the nationality of a foreign country; and

                  (ii)    never had reasonable prospects of acquiring the citizenship of a foreign country.

Overseas absences

Confinement in prison or psychiatric institution

Ministerial discretion—confinement in prison or psychiatric institution

Ministerial discretion—person in an interdependent relationship

National security

                   (i)    has been convicted of a national security offence; or

                  (ii)    has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to a period of imprisonment of at least 5 years; or

                   (i)    is not a national of any country; and

                  (ii)    is not a citizen of any country; and

                   (i)    the person was born in Australia; or

                  (ii)    the person was born outside Australia and, at the time of the person’s birth, the person had a parent who was an Australian citizen.

You may be eligible to become an Australian citizen under this Subdivision if you ceased to be an Australian citizen under this Act or the old Act.

You must make an application to become an Australian citizen again. The Minister must approve or refuse you becoming an Australian citizen again.

You must be eligible to be an Australian citizen again to be approved. You may be refused citizenship again even if you are eligible.

The Minister may be required to refuse your application on grounds relating to:

•           non-satisfaction of identity: see subsection 30(3); or

•           national security: see subsections 30(4) to (6).

You will be registered if the Minister approves you becoming an Australian citizen again.

National security

                   (i)    has been convicted of a national security offence; or

                  (ii)    has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to a period of imprisonment of at least 5 years; or

                   (i)    is not a national of any country; and

                  (ii)    is not a citizen of any country; and

                   (i)    the person was born in Australia; or

                  (ii)    the person was born outside Australia and, at the time of the person’s birth, the person had a parent who was an Australian citizen.

There are 4 ways in which you can cease to be an Australian citizen:

•           you may renounce your Australian citizenship: see section 33; or

•           if you did not automatically become an Australian citizen, the Minister can revoke your citizenship: see section 34; or

•           you serve in the armed forces of a country at war with Australia: see section 35; or

•           if you are the child of a responsible parent who ceases to be an Australian citizen, the Minister can revoke your citizenship in some situations: see section 36.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

Note:   A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Note 1:  A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

Note 2:  Paragraph 3 of Information Privacy Principle 11 in section 14 of the Privacy Act 1988 may apply to further disclosures of that identifying information by a person who is not an entrusted person.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code).

Exception

Note:   A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

Children aged under 16

Citizenship by conferral decision

The government proposes amendments to the Australian Citizenship Bill 2005 and the Australian Citizenship (Transitionals and Consequentials) Bill 2005. None of the amendments change the intent of the bills, which is to deliver better structured, clearer and more accessible citizenship legislation, drafted in contemporary language and, more importantly, the continuation of Australian citizenship as a privilege and not a right. The proposed amendments respond to parliamentary committee reports, implement policy changes and rectify or clarify the drafting of certain provisions.

Following its inquiry into the bills, the Senate Legal and Constitutional Legislation Committee majority report made a number of recommendations, including recommendations for amendments to the bills. The government has fully accepted 10 of those recommendations and partially accepted one recommendation. The proposed amendments to give effect to the committee’s recommendations are as follows. The preamble to the bill is to be amended to implement the committee’s recommendation that the preamble recognise that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia.

The amendments will insert simplified outlines explaining the operation of various parts of the bill. These amendments address the committee’s recommendation for a simplified guide to the new act to assist readers with interpretation. The government will also make a readers guide to legislation available on commencement.

The proposed amendments will also make a number of changes to the personal identifier provisions. These provisions will be more closely aligned with the policy objectives of strengthening integrity of the identification or authentication of the identity of a person making an application for Australian citizenship, and combating identity and document fraud in a citizenship program. As amended, the provisions are also more closely aligned to the Privacy Act 1988. They result from a review of the provisions of the bill and consultations with the Office of the Privacy Commissioner as recommended by the committee. The Office of the Privacy Commissioner is satisfied with these amendments.

Further amendments dealing with the refusal of applications from stateless people on national security grounds ensure that the bill complies with the convention on the reduction of statelessness and give effect to a recommendation of the committee.

The committee also recommended that the bill be amended to make clear on its face that a person who is a citizen under the Australian Citizenship Act 1948 is a citizen for the purposes of the new act. An amendment is proposed to give effect to this recommendation.

Another proposed amendment by the committee will clarify when a child may make an application for citizenship in their own right and when an application may be considered as part of the application of a responsible parent of the child.

There is also an amendment to the merits review provision ensuring that people applying for Australian citizenship on grounds of statelessness have access to merits review. This change was recommended by the committee and accords with the policy objective that existing review rights be maintained.

On 17 September, I announced changes to the residents’ requirements for Australian citizenship. Australian citizenship is a privilege, not a right. It is important that new migrants to Australia can fully participate in the opportunity that life in Australia offers. To this end, the government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with Australia’s values and way of life, that they appreciate the commitment they make to Australia as new citizens and that they can quickly make the most of the opportunities available in Australia.

Additionally, changes in the migration program over the years have resulted in an increasing number of people spending significant periods of time in Australia as temporary residents prior to becoming permanent residents. The amendments will give effect to these changes. The amendments will require applicants to have a total of four years lawful residence in Australia immediately prior to application for Australian citizenship by conferral, including at least 12 months of permanent residence immediately prior to application. They provide for periods of absence from Australia not exceeding 12 months in total during the four years prior, and no more than three months in the 12-month period prior, to application.

I did spend some considerable time in my summing up of the bill (Extension of time granted) articulating the arguments in favour of this extension from two to four years. I do not propose to go back through those in any detail, except to reinforce the fact that the motivation in taking this from two to four years is primarily to ensure that new residents—especially many from new and emerging communities who often come from cultures far removed from our own—have the opportunity not only to understand Australia but also to get the language skills which enable them to fully appreciate what it is they are pledging to when they take that very important decision to apply for and to commit to Australian citizenship.

These new residence requirements will only apply to people who become permanent residents on or after commencement of the legislation. For a period of three years following commencement, people who are permanent residents before the commencement of the new legislation will only need to meet the current residence requirements. It is proposed that these arrangements be given effect through the amendments to the transitionals and consequentials bill. These changes also bring Australia into line with the residency requirements in other countries.

The amendments also implement the government’s response to a recommendation made by the House of Representatives Standing Committee on Family and Human Services in its inquiry into the adoption of children from overseas. The amendments will very properly provide for children adopted overseas by Australian citizens under full and permanent Hague convention on intercountry adoption arrangements to be registered as Australian citizens. It also provides for the necessary integrity of the adoption process consistent with the convention. I think that is a very important amendment that we have introduced to this bill. A proposed amendment to the Australian Citizenship (Transitionals and Consequentials) Bill 2005 will ensure that these new provisions apply to children adopted before, on or after commencement of the new provisions.

The proposed amendments also contain a number of technical changes. The package does not contain any amendments in relation to a formal citizenship test. Submissions in response to the recently released discussion paper on the merits of a formal citizenship test close on 17 November 2006 and consideration of this by the government is expected in the new year, before any presentation to the House. I commend these amendments to the Main Committee.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Link to this | Hansard source

There is some good stuff in these amendments. Obviously some of the issues about personal identifiers are issues that Labor would not have a problem with. For procedural ease, we have allowed them to be all dealt with together, but there are a couple of things in here that are completely unacceptable and that is why Labor will be seeking to divide on these amendments when they are taken together.

I find it extraordinary that one of the arguments from the parliamentary secretary is that the real reason, the big reason, that they have for wanting to move it originally to three and now to four years is primarily to ensure that the people involved have the opportunity to appreciate the Australian way of life. Why not five years? Why shouldn’t people have five years to appreciate our way of life? What were the arguments that the parliamentary secretary quoted when he introduced the bill? He said, ‘This is the real reason,’ and he quoted the member for Parkes—from a speech that was about reaching a conclusion of three years. The parliamentary secretary actually incorporated into his speech arguments that were brought to the Australian parliament as to why it should be three years. He quoted them with authority and said, ‘These are the reasons you need to listen to.’ They are the reasons we are listening to. They are reasons that we take into account and they are the reasons why we announced we would support the bill. They are the reasons why we announced that this bill was not controversial and, hence, why we are debating it in here.

But it started to become controversial the moment this government, and I do not even know the extent to which I can say this government, at the moment this parliamentary secretary—and I respect that he is elevated beyond the parliamentary secretary level; he has more power than the previous junior minister had, and that was made clear during estimates—

Chris Bowen (Prospect, Australian Labor Party) Share this | Link to this | Hansard source

More staff.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Link to this | Hansard source

More staff, more power, more authority, and now we have a bizarre amendment. The amendment is bizarre for a very simple reason. The argument he gives is about the opportunity to appreciate the Australian way of life. Yes, that is an important argument. But let us not pretend that there is something magic about the number four. We know how they got to the number four—it was the equation: government policy equals Labor plus one. When Labor supported two years, they made sure that the move was to three. But, much to their surprise, Labor agreed to three. So why did we then end up with four? Because they thought, ‘Labor has agreed to three. Government policy has to be Labor plus one. So then we have four.’ Thank heavens we have never agreed to 20, because the parliamentary secretary would be in here moving that it should be moved to 21 years. He would have a good reason. He would say the primary reason for moving to people waiting 21 years—

Chris Bowen (Prospect, Australian Labor Party) Share this | Link to this | Hansard source

The sole reason!

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Link to this | Hansard source

the sole reason is primarily to ensure, solely to ensure, that they have the opportunity to appreciate the Australian way of life. I want to know what is magic about the number four in that reason, because it has not come out as a result of the discussion paper he has issued. Submissions to that have not even closed, yet the parliamentary secretary has arrived at the magic number four. Other than the formula of government equals Labor plus one, I cannot understand how they get there. But I can understand why Labor will not accept it. For the parliamentary secretary, that might be the most important reason in the world, and in public policy, yes, it is an important reason. But I tell you: national security ranks higher. National security reasons will always rank higher.

When COAG dealt with this issue they did not simply decide that we needed to increase the waiting time for citizenship. They actually had to deal with an issue of balance. The citizenship delay period is an important issue of balance, because you are balancing two very serious competing considerations. You want to make sure you do not integrate into society people who you do not want to integrate—people to whom you want to say, ‘This is not the country for you,’ and occasionally that does happen. You also want to make sure you do not alienate people and create a self-fulfilling prophecy.

COAG made that decision faced with the best intelligence that was available to them in the direct aftermath of the London bombings. When they made the call to have three years, we were willing to run with it for that reason. But let us not pretend that they decided that any increase was what they wanted. No, they agreed to three. It was part of a 10-point plan on national security. Simply wanting to trump Labor with a formula is lousy public policy. You do not do that with national security decisions. Labor cannot support that and will be voting against the amendment.

Chris Bowen (Prospect, Australian Labor Party) Share this | Link to this | Hansard source

I would like to make some brief remarks in support of the honourable member for Watson. I was astounded to hear the parliamentary secretary in his remarks say, ‘The opposition’s reasons for opposing this are weak,’ when he had not, and his government had not, put up any reasons at all for the change. As the honourable member for Watson said, when the government proposed a change from two to three years, there was a serious national discussion. It was an agenda item at COAG. The premiers had their say. There were national security implications discussed. The minister brought it into the chamber and put up the reasons for moving to three years. Then we have the issuance of a press release and the parliamentary secretary saying we are going from three to four. No reasons. No explanation.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Link to this | Hansard source

An intelligence briefing from Mark Textor.

Chris Bowen (Prospect, Australian Labor Party) Share this | Link to this | Hansard source

An intelligence briefing from Mark Textor saying, ‘The Labor Party has matched us. We have to go one further’. As the honourable member for Watson has said, this is a terrible way to run the citizenship of this nation. For this government to play politics and say, ‘We must increase it to three. It is a matter of national importance and three is the right figure.’ After consideration—and there was some consideration in the Labor Party in our caucus about how we would respond—the caucus agreed that the government’s proposals were worthy of support. Then all of a sudden it was just changed to four. It is not on for the parliamentary secretary to come in here and use exactly the same words to support going from three years to four as his predecessor used for going from two years to three and say, ‘They are the arguments’ but give no reason, no explanation as to why four is better than three.

For the first time today we heard the sole reason. The sole reason for this change is to give people more of a chance to experience Australian life. For the first time, we heard that there are no national security implications, no other considerations to go in, but the government have decided that four years is the magical number, better than three—and they expect the Labor Party just to say, ‘Oh, well, okay, that’s all right then. You were wrong when you said three was the right figure.’

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Link to this | Hansard source

They’d be worried if we agreed.

Chris Bowen (Prospect, Australian Labor Party) Share this | Link to this | Hansard source

That is right. And if we agree, it will be five years! No doubt there will be a rushed amendment coming in, because the government will say: ‘We have to differentiate from the Labor Party; we can’t have the Labor Party and the government having the same policy on citizenship. There has to be differentiation.’ Mark Textor will be on the phone saying, ‘You’ve got to change this; we’ve got to have an extra year in.’ This is a disgrace, and it will be opposed.

Brendan O'Connor (Gorton, Australian Labor Party) Share this | Link to this | Hansard source

I think the one thing we agree with the government on is that citizenship is very important. Labor believes so and has always considered the importance of citizenship: being a member of the Australian citizenry is certainly an important thing. But it is also a sensitive matter. I think that where you can reach bipartisan agreement you should do so, because you do not want to alarm people in our community. You do not want to alarm immigrants, people who have come to this country, people who are waiting for their citizenship.

I listened earlier to the parliamentary secretary talk about the fact that he has travelled far across the country to many citizenship ceremonies. I can assure you that in my electorate—and you would know this, knowing the area I represent—there are very large citizenship ceremonies because of the nature of the area. There is an enormous cross-section, an enormous diversity, of ethnicity. I am always overwhelmed myself, not only by the sheer number of people who seek to become citizens but by the way in which they are affected, the emotion that I see in those applicants when they are considering becoming an Australian citizen. There is overwhelming emotion in that hall when I attend those ceremonies. I must admit that I enjoy being part of what is a very important day.

It annoys me—it is insulting—to suggest that it is only time, this arbitrary figure, that will count as to whether a person should be or wants to be an Australian citizen. It is very important for the government to outline, therefore, why the eligibility requirement has to be doubled from two years to four years. As other colleagues of mine have said in this debate, we understand why the government proposed the change from two years to three years. That was a considered decision. That was a decision that took into account information provided by intelligence agencies. That was the decision that was determined after discussions with state and territory governments. That was a decision that was made not by press release but by proper discussion. As a result of that process, we believed we would support the government. We were not going to play politics with such an important matter. I ask the parliamentary secretary: why not five years? I ask the parliamentary secretary: if he has to find a figure to distinguish the government from the opposition and we were to agree to four, why not five years? What is the significance of four years?

As the member for Watson indicated, not only was that decision of three years determined through proper discussion and consultation, having regard to our national security requirements and being sensitive to the way in which it will be perceived by applicants and those choosing to become Australian citizens, but we have not heard a cogent argument proposed by the government as to why we have to move from three to four. In fact, as has already been indicated, the parliamentary secretary, in explaining the move from two to four, used the arguments of the former minister when he was arguing for changing the requirement from two years to three years. So we have not heard an additional argument put by the parliamentary secretary or anyone in this government as to why it now must move from two years, as it currently stands, to four years.

I would also like to reiterate the point made by the member for Watson. There is a very delicate balance in the way in which you send a message to people who want to become Australian citizens. The message is this. Firstly—let us be clear about this—permanent residency is a very important factor in all of this, but then there is that next step, and all the entitlements and obligations that entails, to become an Australian citizen. You do not want to send the message that people are not welcome, and the fact that the government has extended the time without providing one decent reason in our view means that they have to come up with something better. They failed to do that and therefore we are questioning the reasons and the motives of this government.

Andrew Robb (Goldstein, Liberal Party, Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs) Share this | Link to this | Hansard source

I would like to respond to some of the points that have been made by those opposite in regard to the proposed extension from two to four years. My point in the summing up, in referring to my colleague the member for Parkes’s justification for the increase from two to three years, was to highlight the fact that his principal argument was the need for people to more fully understand Australia before they made the pledge. The secondary argument related to national security measures—which, by the way, were not a conclusion out of COAG. The COAG meeting release did not refer to these matters in any way. The decision had already been taken some weeks before, by the Prime Minister, because citizenship is a federal government matter. In the COAG material released from that meeting on 27 September 2005, the agreed outcomes from the COAG meeting made no reference to citizenship. It is not surprising, because Australian citizenship law is a matter for the federal parliament alone.

My reference to my colleague’s arguments was to highlight the fact that the principal argument of going from two years to three was not referred to by any speaker—not one speaker on the other side—as a reason against going from three years to four. Not one of them raised the matter of the time required for people to gain some decent sense, some keen understanding, of what it is they are committing to when they take out Australian citizenship. I put to this Main Committee chamber and to those opposite that Australia is virtually alone in the world with a two-year requirement. In fact, at three years it would be virtually alone in the world. It is typically five years and as high as eight or 10 years in some countries. It was a judgement that four years in Australia was a far more appropriate time, especially when you consider what is happening with the changing mix of migration in this country.

This has not been referred to or addressed in any sense. There are very strong arguments and reasons why we should extend the period from two to four years to give people who have come from cultures far removed from the Australian culture the opportunity to understand what it is and the way of life that they are signing up to when they take out Australian citizenship. As I have moved around—not just at citizenship ceremonies but, more importantly, as I have mixed in the communities, especially African communities and many of those from the Middle East—I have found that so many people do not feel that they have sufficient time within two or three years to get a keen sense of Australia and often to get the language skills to understand Australia, the values that are important here, the norms that are important here and the way of life that is so much a critical part of taking out citizenship, which is the commitment to a way of life.

These are the things which have not been addressed for one second by any of the raft of speakers we have heard on the other side. They have solely restricted their argument to national security matters, which we agree on. But the extension to four years is driven by the dynamics of a changing mix of migration to this country and the importance of maintaining the confidence within the broader community that those who come here and take out citizenship are well equipped to know what they are pledging to when they make that commitment, can become strong citizens who can realise the great opportunities in Australia and will not stumble into citizenship without sufficient time to fully understand the very important commitment they are making.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Link to this | Hansard source

Obviously the opposition maintains its objection, including the references that have been made a number of times to the parliamentary secretary’s argument about African communities. I do not know who out there is being told that at the moment after two years you are obliged to immediately take out citizenship. I hope that no-one is being told that and I hope that no-one is under that impression, because if anybody feels that they are not yet ready to take out citizenship they get to wait; they get to delay. I am not sure where that argument takes us.

Before making a further contribution, I want to ask a question of the parliamentary secretary concerning amendment (47) on page 13 of the document he has circulated. In amendment (47) there is reference to a new subparagraph (4A)(a)(ii). As I understand it, this amendment applies to a very small class of people who have had to meet a whole set of other criteria. My understanding of this amendment is that, if people within that subset have been imprisoned under foreign law for more than five years, the minister will have no discretion but will be obliged to reject their application for citizenship. Before I proceed with any further remarks, I want to check if that is correct.

Andrew Robb (Goldstein, Liberal Party, Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs) Share this | Link to this | Hansard source

That is correct.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Link to this | Hansard source

I just find this an extraordinary clause. If somebody has been imprisoned in a foreign land, I am quite comfortable with that raising a particular discretion or sending some extra alert signs back to the minister, saying, ‘Hang on, you might not want to approve this person for citizenship.’ I am also very comfortable with there being a commitment that, if people have committed an offence under Australian law, there is an absolute bar. I do not think you need to have ministerial discretion if the offence was committed under Australian law. But why on earth are we placing ourselves in a situation where the law of another country will determine whether or not somebody is eligible for Australian citizenship? During my speech on the second reading—and the parliamentary secretary was there at the time—I could not find this section because at the time I was looking through the substantive bill and not through the amendments, so I apologise for not raising it at that time. We are not in a position to be able to move an amendment about this right now, but it is something we will be pursuing in the Senate.

But I have to say: if there is one concept in the world that other countries should have nothing to do with, it is a determination of who gets Australian citizenship. We have legislation before us now which says if somebody who fits this class of people spent part of their life in South Africa as an anti-apartheid activist and was imprisoned for more than five years in the cell next to Nelson Mandela, they are not allowed to become an Australian citizen. We have a situation here where, if somebody was involved in internal rebellion against Saddam Hussein and was imprisoned, and they fit the class of persons covered by this legislation, the minister of Australia has no discretion as to whether or not they are eligible for citizenship because that has already been ruled out by Saddam Hussein.

If somebody has spent part of their life as an activist in Burma and they found themselves under house arrest for a period of time in the same house, let us say, as Aung San Suu Kyi, and they fit this class of people, even if the Australian minister thinks this is a good person involved in a struggle against an evil regime and even if this person accords with every single Australian value that we would want upheld, the Australian minister is barred from allowing this person to receive citizenship.

I think if somebody has been imprisoned overseas it should be brought to the attention of the minister. It should be something which they have an extra look at. But why on earth, of all the legislation, has the government chosen to outsource citizenship—and not just outsource citizenship to our allies or to our close neighbours but outsource it to any country in the world? It does not matter what country it is. I respect that this section applies to a limited class of people, but even for any limited class I do not believe there should ever be a situation where the rest of the world takes control of who gets citizenship of Australia.

There will obviously be times when, as a member of the opposition, I will not be all that thrilled with the way a government minister exercises the discretion, but I will defend the fact that that is the person who should be exercising it—that the discretion should lie with the minister of the government of Australia, not with the criminal systems of some of the rogue regimes around the world.

This was not in the original bill. What sort of accident has caused this to end up as an amendment before the Australian parliament, I do not know. But the parliamentary secretary should make sure that by the time we come to divide on this in the House, he has sought leave to revisit this issue and take it out of the amendment. If there is one thing that Australia should have control of, it is Australian citizenship. I find it absolutely repugnant to come into the parliament of Australia and be told that we will allow any other country this power. It could have been the Taliban when they were in charge of Afghanistan and had Australians under arrest facing capital punishment for holding Bibles that were in Arabic. I do not want to know that a regime like that will actually get to determine for some class of people whether or not they are eligible for Australian citizenship. It is something that lies squarely with the responsibility of the government of Australia. Whoever is responsible for this drafting should understand that we will outsource many things; citizenship will never be one of them. (Time expired)

Andrew Robb (Goldstein, Liberal Party, Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs) Share this | Link to this | Hansard source

After that impassioned statement I need to make some points of clarification. Firstly, the consideration of this grew out of recommendations by the Senate Legal and Constitutional Affairs Legislation Committee. That is why we are considering elements of this. Secondly, during a number of the contributions by those opposite during the debate of the bill, the content of this provision has been misrepresented. Many speakers rose to complain that migrants who come here and have confronted the circumstances just articulated by the member for Watson could find themselves automatically denied an opportunity to take out citizenship in Australia. Of course that is not correct.

As the member for Watson was alluding to, this only applies to people who were born in Australia. So what it means is that someone who was born in Australia would need to renounce their Australian citizenship. Then they would need to take out citizenship of another country. Then they would need to lose that citizenship, be locked up for five years by another country and at that point in time seek to return to Australia and take out Australian citizenship. So it is not a circumstance in which there is any case on record that would apply. You can make the theoretical case, but it is hard to find the practical case.

However, I would like to conclude with the fact that I have listened to the contributions and I have also examined the provisions. The government is considering the issue for any circumstance that does not go to national security matters. That certainly should not and will not change. But, if any amendments are necessary, we would look to move those in the Senate.

Question unresolved.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

As the question is unresolved, in accordance with standing order 188 the question will be included in a schedule attached to the committee’s report to the House on the bill.

Bill agreed to with an unresolved question.

Ordered that the bill be reported to the House with an unresolved question.