Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

It certainly does not worry me. I think they deal with the same issues and seek to do the same thing. We can put the question separately at the end and I imagine the outcome will be exactly the same. But, just to remind the chamber and those following this debate, the amendment currently before the chamber is Democrat amendment (5), which seeks to make issues relating to the citizenship test and the questions within it and processes surrounding it disallowable instruments. I want to reinforce the point that this citizenship test and its contents are important in terms of the long-term credibility of the test and therefore the long-term credibility of citizenship.

As I was saying before we were interrupted by question time, there is a very understandable apprehension amongst a minority within the community that there is potential down the track for the test to be misused by future governments and for it to be shaped in a way where it can be exclusionary and targeted at individual groups. That is a very real fear. I believe it is one that is totally understandable, particularly given Australia’s history, going back many years; many people, particularly migrants, know that Australia has done that in the past. So we need to put in place some mechanisms to protect against misuse of the test in the future.

I do not believe that enabling the test to be a disallowable instrument is a major impediment. The minister in his earlier contribution today suggested it would create uncertainty. For those who are not aware, the process of disallowance is that an instrument is gazetted, it is tabled in parliament, it can become operational from when it is gazetted or tabled, and the parliament and the Senate have the opportunity over the next 15 sitting days to move a disallowance motion to negate that legislative instrument—in this case, the citizenship test. There are two aspects. Firstly, it would require the test to be made public, which I think is an eminently sensible and desirable thing for the credibility of the test. Indeed, that was reflected and agreed on by the Senate Standing Committee on Legal and Constitutional Affairs, including by government members of the committee, in one of their recommendations. Secondly, it would also provide a mechanism for the parliament, if it perceived there was a serious problem with aspects of the test or the processes surrounding it, to disallow it. I do not see why that would be a major impediment or how it would create massive uncertainty.

As senators would know, every day a list of legislative instruments is tabled in this place. After a few non-sitting weeks we get a very long list. The list of documents, which was tabled in this place today, is 23 pages long. There are 23 pages containing the titles of legislative instruments which have been tabled in the last couple of weeks. As a member of the Senate Standing Committee on Regulations and Ordinances I see literally thousands of legislative instruments—I must confess I do not read them all—tabled each year. Most of them have the potential to be disallowed. Each one has the potential to be introduced and become operational and, if the Senate should then decide to disallow it, to become no longer operational. That is the nature of disallowance and disallowable instruments. To say that that then creates uncertainty is to say that having legislative instruments creates potential uncertainty. Every single one of them has that uncertainty.

You have uncertainty if you introduce legislation and it then gets amended. If there is sufficient concern about starting to put that law or that test into operation and then having to stop putting it into operation once it is disallowed, then there is a very easy mechanism around that: you just do not make it operational until the time for disallowance has expired. It is a simple thing to do and it is done from time to time. It is simply a furphy to say, ‘If you make them disallowable instruments, it creates too much uncertainty and you may have a test coming in, then going out and all those sorts of things,’ and it is not a good enough reason to not have that protection in place.

As the minister would know, I would expect—and I am sure most senators would know—out of those literally thousands of legislative instruments, the number that have actually been disallowed has been minimal, even when the government did not have control of the Senate. It is obviously extremely minimal now they have control of the Senate. They do not disallow anything; they do not support any disallowance motions. But, even including the time when the government did not have control of the Senate and disallowance motions were moved from time to time—even attempts to disallow are extremely rare—I would say, off the top of my head, that the number which have successfully been disallowed every year for the last decade or more would be in single figures. It is extremely rare. Less than 0.1 per cent of all legislative instruments get disallowed. It is that last-resort safety net, it is that final bit of protection, it is that accountability mechanism, it is that oversight. As with many accountability mechanisms and many processes that enable oversight, the fact that the oversight is there is as important as how often it is used.

It is like any other piece of accountability: if you know that if you do something outrageous there is a chance you will be stopped then you are far less likely to do something outrageous in the first place. If you know you have open slather to do whatever you want then there is a much greater temptation down the track—whether for political reasons, administrative convenience, covering up a mistake or whatever it might be—to undertake that extra action that you should not, which will have a negative impact. It is simply human nature. It is not a politically partisan statement. If you know you have total power, without any sort of effective mechanism, then there is more scope for it to be used inappropriately, wrongfully or in an unhelpful or damaging way.

Making any instrument a legislative instrument is a valuable safety net, and making it disallowable is not a major drama. For all intents and purposes, 99.9 per cent of the time it will just mean one more title in the long list of legislative instruments tabled by the Clerk that is put on our desks every day. It would mean little more than that, and few of us would even read them. But someone will read and check it; if there is a problem they will let someone else know; and the accountability mechanism is there. To not have that mechanism increases the chances of tests being misused down the track by a future government. It also tends to reinforce the apprehension and suspicion of some within the community that there is some other agenda here or that there is a potential for a citizenship test to be used in an exclusionary fashion.

It is much easier to reassure people that these citizenship tests are benign if people can see what is in them and if they also know there is an accountability mechanism in place. If you are putting in place a mechanism that just gives open powers to any future minister then it becomes that much harder to reassure people. I urge this amendment on the committee because I think it is a valuable one that I do not think would detract in any way from the effective operation of the responsible citizenship test well into the future, even if personally I am not convinced that such a test is needed.