Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Hansard source

I agree with Senator Ludwig that the issues which relate to this are very similar to proposed Greens amendment (1). The remarks I make on behalf of the government about the Democrat amendment are similar to those about Senator Nettle’s proposed amendment.

In relation to this amendment, the government does not believe that the determination which is made by the minister, which will approve the content of the new citizenship test and include the test questions, should be subject to the disallowance provisions of the Legislative Instruments Act. I said earlier that this could breed some degree of uncertainty. You could have people sitting a certain test in a certain form one month and it could be disallowed the next month and they would have to go back and sit a different test, or people applying the next month could have a different test under which to apply.

As well as that, I will add to my previous argument and say that the determination does not fall within the meaning of a legislative instrument as defined by section 5 of the Legislative Instruments Act. It is not of a legislative character, and that is because it will not determine the law or alter the content of the law. Even if you do think it should be a determination as such, it does not fall within the definition contained in section 5. So there is both a policy reason and a more legalistic reason, if you like, that the government relies on for this—and quite properly so. I think that what you have to look at is the determination and how it will function. You will have attachment A and attachment B. Attachment A will have the form of the test and the way it will be conducted. Attachment B will have the questions. Attachment A will be released publicly, and that will be open to public purview. So that is the form of the test, the rules, how it will be conducted and things of that nature. The part that will not be released, as we have said publicly before, on the record, is the part which deals with the questions that will be in the test, and that is attachment B. We have said that for a policy reason. We do not believe that releasing the questions would achieve the purpose we are setting out to achieve here. What you would have is a set of questions released publicly, and doing that would alert people to the questions. You would have rote learning, not a more genuine understanding of the issues and those aspects of citizenship that we want people to understand when they apply to become an Australian citizen.

Certainly the format and how it is run will all be in attachment A, which will be made public. But to make it a determination which is a legislative instrument, we believe, would not be appropriate, because it would have that uncertainty. More importantly, it simply does not fit the meaning of a legislative instrument as defined by section 5 of the Legislative Instruments Act. I think that that reinforces the government’s position. As I say, this is very similar to the Greens amendment. The government opposes Democrat amendment (5) on the basis of what I have outlined and, for similar reasons, would oppose Greens amendment (1).