Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The committee is considering amendment (5) on sheet 5326 revised moved by Senator Bartlett.

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

For ease of debate, I think it is fair to say that Democrats amendment (5) is very similar to Greens amendment (1). I just wanted to clarify if that is the case. Perhaps we could have a cognate debate in relation to both those amendments. I know Senator Nettle is not here now, but it might assist the running of the committee if we had a cognate debate and put the questions separately.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to 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.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

It is worth reiterating where we are now at: we are debating in committee the Australian Citizenship Amendment (Citizenship Testing) Bill 2007 and specifically Democrats amendment (5). At the heart of this matter is what the Senate Standing Committee on Legal and Constitutional Affairs recommended, which is that the proposed citizenship test questions be tabled in parliament. It seems that the Democrats have proposed a sensible solution to the problem—that you use a legislative instrument to effect that recommendation.

The government should not be afraid of using legislative instruments; it should not be concerned about it. The Senate Standing Committee on Regulations and Ordinances will oversee regulations that engage such legislative instruments. The government should not be afraid of scrutiny. The government should not be concerned that the process allows people to have a look at matters such as this to ensure that it meets the commitment and that it continues on an ongoing basis to meet the requirements under the legislation. On balance it seems to me that the government is trying to walk away from oversight. It is not major oversight; it is sensible oversight that the Democrats are proposing. That is why Labor supports this amendment. It reflects not only the Senate committee’s recommendations but also Labor’s view that the questions should be publicly available.

In the current scheme of things the government does have the majority in the House. If the government does not like the matters and is concerned then it can oppose any disallowance motion and win that debate. But a disallowance motion is really the end point. If you look at the way the Senate works, not a lot of disallowance motions are raised in the first instance. But, if you are concerned about that, you are really concerned about the end product, the end of the road. You should be more worried about ensuring that you get it right. In that way you should not be concerned about oversight, because if you get it right then the matter will not get to that end point. You will not end up having to be concerned about whether a disallowance motion is passed.

The Temporary Chairman, Senator Watson, runs the Regulations and Ordinances Committee admirably, as I understand it. There he occasionally puts disallowance motions on matters but then comes back in after consultation with the minister and has those motions removed because the consultative process has fixed any problems. What concerns me is that, in terms of oversight, scrutiny and public availability of documents, this is an admission by this government that it wants to walk away from it all or that it is afraid of it—I am not sure which. The government set up the process with good legislation, which was supported by Labor, to allow legislative instruments to be utilised in this place and now wants to walk away from those commitments. It does not want to use the Regulations and Ordinances Committee, which has been in place since 1932, to oversight its legislation and ensure it meets necessary commitments. I guess we will hear the answer from the minister. But let us not hear, ‘We simply don’t like the process,’ or ‘It’s not going to meet our commitments’; let us hear an appropriate response that says more than simply that.

I am happy to have the cognate debate with Senator Nettle’s foreshadowed amendment and then split the question. Senator Nettle’s amendment that I suspect she will move reads:

A determination made under subsection (1) is a legislative instrument and a question within a test, or a component of a test is deemed to be provisions within the meaning of section 42 of the Legislative Instruments Act 2003 and is subject to disallowance.

On that basis it seems to be very similar to the Democrats’ amendment currently before the chair, and the comments I have just made are germane to Senator Nettle’s foreshadowed amendment in any event. I do not want to prolong the debate, but the government needs to not only justify why not but also demonstrate why their system will provide a better oversight.

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to 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).

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I want to indicate that I will not proceed with the Australian Greens amendment, because the Democrats have said that effectively they will be doing the same thing, which is to seek to make the questions within the citizenship test a disallowable instrument—that is, to allow the parliament to see what the proposed questions for the citizenship test are. The Greens think this is an important oversight role that parliament needs to, and can, play. It is about ensuring that the questions are appropriate—whilst recognising, as I have said previously, that the Greens do not support the citizenship test, because we do not think it will achieve the government’s objectives in relation to this.

In particular, we do not support what is proposed in relation to how it should work, which is that the Minister for Immigration and Citizenship has complete say over what the questions are. There are a number of examples you could point to. You could ask the question: ‘What do people in Australia think of the colour pink?’ You could put it in any absurd way and say, ‘I don’t know that that is really an appropriate question.’ People might think that the minister will not do that, but I would look at the sample questions we have already been given in the draft document in relation to the citizenship test—I do not think they are outrageous questions in the way that it might be to say, ‘What do we think of the colour pink?’ but I cannot see that knowing the floral emblem of Australia indicates you are going to obey the laws in Australia, respect Australian values and understand what it is like to be in the culture here. It might mean that you know something about Australia—and, yes, that is good; we do not have a problem with that—but I do not see how, in terms of the government’s objective around this legislation, the citizenship test will ensure that people who come to Australia will respect Australia and the way of life here. You could be a mass murderer; you could be a person with really evil intentions and still happen to know what the floral emblem is. I do not see how knowing the first line of the national anthem or what day Australia Day is indicates that you are going to be a valuable citizen. There are many people who have made really fantastic contributions as citizens in Australia over the years who may not know the answers to these questions. I do not think that that somehow diminishes the value of the contributions they have made here in Australia.

It is not outrageous to say that we should see these questions to see whether they are appropriate. It is not as though I am proposing that the minister is going to do something outrageous; I just do not see what the questions add. I am not claiming they are outrageous; I am just saying that I cannot see how learning the answers to these questions indicates that you are not going to be a valued, contributing citizen.

I imagine that probably everybody in this chamber could point to people they know who are valued contributing citizens, be they celebrities that we know of who do not speak English all that well or the people around the corner who run the local grocery store who have really contributed to our community. They may not know the answers to these questions, but that does not diminish the contribution that they have to make. That really sits at the heart of the Greens’ concerns in relation to the citizenship test.

I am quite happy to support the objectives the government says are behind this. I absolutely support improving the English language skills of migrants. That is why I moved a second reading amendment about expanding the English language program for migrants. I think we should do that. I think it is great that the government increased funding for that in the last budget. I totally support that. I totally support people understanding what life in Australia is like. But I do not think that the two objectives that the government put forward are going to be achieved through this test. That is essentially why the Greens are not supporting this test.

This particular amendment—which is similar to the amendment proposed by the Australian Greens—is about the parliament having some oversight of this. Deciding who can and who cannot be a citizen of this country is a very significant decision. What this legislation is proposing is that the test that determines who can or cannot be a citizen should not come before the parliament. I think if we are going to set a standard measure on something as significant as who should or should not become a citizen—which is what this test is proposing—the parliament should have some oversight and some say in that standard framework, and there should be some transparency.

Where it is an individual decision, the minister is in a good position to be able to do that, but that is not what is being proposed here. It is a standard, across-the-board mechanism for determining who should or should not become a citizen. I think it is a really fundamental thing in our society to decide who should or should not become a citizen. I think it is core business of the parliament to have some oversight of that, which is why I am so concerned about this particular amendment which says that the minister is the only person to determine that. Okay, if it is a one-off decision, I can see an argument for that. But this is not a one-off decision; this is an across-the-board mechanism for deciding who should or should not be able to become citizens. It is a fundamental component.

Other countries around the world put things like that into their constitutions to determine who should or should not be able to become a citizen of their country. I am not advocating that, but I am using that as an example of how important other countries think that it is to decide who can or cannot become a citizen of their country. That is why I think this amendment is so important. This amendment is saying that the parliament, as the elected representatives of people in this country, should have some say in the standard test the government is proposing to apply to all people to determine who should or should not be a citizen.

I do not think it is a very big ask at all that we in the parliament should have some oversight of that, and that is why the Greens support this amendment. That is why we proposed a similar one ourselves that I indicate I will not move, because we are having the debate here about the way in which this should be determined. When I look at that series of questions, I just cannot see how being able to answer those questions means that you are going to be a contributing citizen. You may be able to answer those questions and be a contributing citizen, but I do not think that being able to answer those questions proves that you are going to be a contributing citizen.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Thank you, Senator Nettle, for not proceeding with your amendment. The question is that Australian Democrats amendment (5) be agreed to.

Question negatived.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I move opposition amendment (1) on sheet 5346:

(1)    Schedule 1, item 5, page 5 (after line 17), at the end of section 23A, add:

        (8)    The Minister must cause an independent and comprehensive review of the operation of the citizen testing regime to be completed by August 2010 to:

             (a)    gauge its impact on citizenship application and conferral rates in all applicant categories; and

             (b)    specifically examine the citizenship test regime’s impact on citizenship application and conferral rates on persons seeking to enter Australia and become Australian citizens through refugee and humanitarian provisions.

        (9)    The person or organisation undertaking the review must give the Minister a written report of the review.

      (10)    The Minister must cause a copy of the report to be presented in both Houses of the Parliament within 15 sitting days of receiving the report.

I note the Senate Standing Committee on Legal and Constitutional Affairs made several key recommendations following its inquiry into the Australian Citizenship Amendment (Citizenship Testing) Bill 2007. The committee recommended that the operation of the citizenship testing regime be reviewed three years after the bill’s commencement, particularly in order to gauge the regime’s impact on citizenship application and conferral rates, and how it is impacting upon groups within our society, particularly the refugee and humanitarian entrants.

As the government would know and the Senate may know, there is a high correlation between humanitarian entrants and their ability to pick up citizenship at the expiration of the humanitarian visa. Of course, that has now been extended to four years, but there is a high uptake of citizenship amongst that group for a range of very good reasons that are reflected in that group. From what I have been led to believe, they are appreciative of the ability to be able to start a new life in Australia and recognise the value embodied in Australian citizenship.

A concern that a review could also look at would be where there may not be a high uptake in citizenship in some groups. All that can be looked at. The government has indicated there will be a review, but Labor thinks that the ability to have a review should be embodied in the legislation itself. It is not unusual, because the government has acceded to those requests in the past, for a review to be contained in the legislation itself. Labor’s amendment also sets out the areas that should be looked at. What can sometimes happen down the track—say, three years hence—is that we lose sight of what the review should encompass. But if you set out the parameters now and leave sufficient scope to add to them if necessary then you have a basis not only to look at now but to continue to look at and then finally review in three years time.

The Labor amendment says, ‘The Minister must cause an independent and comprehensive review of the operation of the citizenship testing regime to be completed by August 2010.’ I think it is necessary to have that element of independence about the citizenship testing regime. It is also necessary to gauge its impact on citizenship applications and to specifically examine the citizenship testing regime’s impact on citizenship application and conferral rates on persons. Those rates could be provided and the review could then be tabled. It would be helpful if this parliament would set out that course of action rather than simply conduct the more generic three-year review promised by the government. I ask the government and the minor parties to support the amendment.

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

I briefly indicate the Democrats’ willingness to support this. I think that it would at least provide some mechanism for review. As I have said in some of my previous contributions, obviously the test itself and how it operates is at the heart of the credibility of this whole process. I repeat my apprehension that there is potential for the credibility of Australian citizenship in general to be degraded if the test does not operate effectively and is seen to be problematic in some way or other. I am not convinced, and I still have not heard any evidence in this debate or elsewhere, as to why the test is even needed, but if we are going to have it then we should at least have more reliable mechanisms for ensuring that there is oversight and review. Assertions or pledges now from the minister—sincere though I am sure they are—are not sufficient to bind any future minister.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I just want to indicate that the Australian Greens will be supporting this amendment proposed by the opposition.

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

Just for the record, the government oppose this amendment, and the reason for that is that the minister has given an undertaking that there will be a formal review in three years time. We have said publicly on the record more than once that there will be ongoing review of it. I can understand Senator Ludwig’s terms of reference and why he has spelt them out in that fashion. We think that it is better to develop the terms of reference when you have the review, when it would be more relevant to the times, rather than formulating them at this stage when we still do not know how it will pan out. The government oppose this amendment on that basis.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.