Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

I rise to speak on the second reading of this legislation and I would like to start with a brief outline of it. The purpose of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 is to amend the Australian Citizenship Act 2007 to make it easier for people who have a physical or mental incapacity before coming to Australia, as a result of suffering torture or trauma, to be eligible to apply for citizenship; to allow prospective applicants for citizenship by conferral to sit the citizenship test at the same time as making the application; and, to tighten the eligibility provisions for persons under 18 years of age by requiring that they be a permanent resident. These are the key provisions of the bill before us at the moment.

I would like to take a few minutes to remind the Senate that the citizenship test was launched on 17 September 2007, with testing commencing from 1 October 2007. The primary reason for introducing the test was to ensure that citizenship applicants had the requisite knowledge to demonstrate the requirements of the Citizenship Act, which, broadly speaking, were to understand the nature of the application, to have a basic knowledge of English and to demonstrate comprehension of the responsibilities and privileges of citizenship. I will take the Senate briefly to the then minister’s speech on 30 May. In talking about the bill, he underlined the values that underpinned the legislation. After speaking about the balance of diversity and integration in our society and underlining the important point that this diversity that we enjoy is as a consequence of shared values that bind us together as one people, he said:

These values include our respect for the freedom and the dignity of the individual, support for democracy, our commitment to the rule of law, the equality of men and women, respect for all races and cultures, the spirit of a ‘fair go’, mutual respect, compassion for those in need, and promoting the interests of the community as a whole.

He also said:

The test will encourage prospective citizens to obtain the knowledge they need to support successful integration into Australian society. The citizenship test will provide them with the opportunity to demonstrate in an objective way that they have the required knowledge of Australia, including the responsibilities and privileges of citizenship, and a basic knowledge and comprehension of English.

I remind the Senate that that bill was supported by the Labor Party, and we were grateful for their support. At the time, the idea of a test was very popular. Indeed, a Newspoll poll published in the Australian over 15 to 17 December 2006 specifically going to citizenship tests showed that 85 per cent of people polled were in favour of a citizenship test and only about 12 per cent were against it.

One only has to look at the Australian citizenship test snapshot report of July 2009 to see how successful the citizenship test has been. Statistics show that between 1 October 2007 and 30 June 2009 about 138,000 people sat the Australian citizenship test, with a pass rate of almost 97 per cent. Even when one breaks that down into the various streams, the pass rate is still high. For example, in the skills stream there was about a 99 per cent pass rate. For family stream clients the pass rate was about 95 per cent. Even in the Humanitarian Program the pass rate on the first or subsequent attempt was 84 per cent. I remind the Senate that clients can sit the test as many times as they need to to pass. The average number of times a person sits the test is 1.9. The point is that some people do not pass on the first occasion, but when one looks at the high levels one can see that it has been very well accepted, as was certainly the intention when we passed the legislation.

The amendments in the current bill are largely the result of recommendations of the Australian Citizenship Test Review Committee’s report entitled Moving forward ... improving pathways to citizenship, which was prepared under the chairmanship of Richard Woolcott in August 2008. I remind the Senate that the coalition gave an undertaking to review the test and the legislation after several years in operation. After the committee reported, it was pleasing from the coalition’s perspective to see that the citizenship test would be retained and that it would be retained in the English language. There was some question as to whether it would be retained in the English language. Of course, English language skills are crucial. Migrants with English skills will be better able to settle and take advantage of all the opportunities offered by our great country and find employment. So we were very happy that this occurred. However, the downside was that the citizenship test was to be watered down. The government was insisting on changes to the test and resource book, even though the figures that I have quoted show such a very high pass rate on the first or subsequent attempt.

Our concern is that the government plans to abolish all the mandatory questions covering the rights and responsibilities of Australian citizens. We are concerned that, instead of questioning applicants on a range of matters that include obligations, responsibilities, history, values and the Australian way of life, the Labor government is replacing the highly successful system with a limited test focused on the pledge of commitment, which is confined to a few lines that say:

From this time forward, under God,

I pledge my loyalty to Australia and its people,

Whose democratic beliefs I share,

Whose rights and liberties I respect,

And whose laws I will uphold and obey.

Of course, a person may choose to say ‘under God’ or not. This is only a small part; our concern is that, as rights and responsibilities are no longer mandatorily tested, people who do sit the test will not have an adequate knowledge of these. Most of the recommendations of the review committee which have been accepted by the government can be implemented without the need for legislative change. Hence, the government will go ahead and make this raft of changes to the citizenship legislation, which will not be subject to review in this place.

However, there are two key recommendations which do require legislative amendment to the Australian Citizenship Act to fully implement, and they are given effect in the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009. The first is an alternative pathway to citizenship for a small group of people who have a physical or mental incapacity as a result of having suffered torture or trauma outside Australia, and this was the recommendation. The second is the better administration of the citizenship and application process by removing the requirement that a person sit and pass a citizenship test prior to applying for citizenship. I will come to the former a little bit later in my speech, because it was the subject of the dissenting report of senators at the Senate inquiry. I will deal first with the other issues in relation to the better administration of the application process, which the coalition does support.

One of the provisions relates to improved administration of the citizenship test and application process. The basis for this change was contained in the submission that the Department of Immigration and Citizenship put to the Senate inquiry into this bill. The bill proposes to amend the act to streamline the citizenship application process. At the moment, there are multiple steps, which is inefficient for clients. The proposed changes will streamline the applications and the test process so that most applicants will only need to attend the department once. The other reason we support this is that many clients seem to have been sitting the test before they were able to meet the residency requirements for citizenship. According to the department’s submission:

In doing this they are using resources, including test appointment times, that should be dedicated to those people who are residentially eligible to apply for citizenship and have a desire to become Australian citizens as soon as possible.

As I said, the provisions will enable streamlining and we do support that.

The other provision that was a subject of discussion at the Senate inquiry was the requirement for applicants under 18 to be permanent residents. There was, indeed, quite a bit of evidence given at the hearing about the proposed changes to section 21(5), which reads:

A person is eligible to become an Australian citizen if the minister is satisfied that the person:

(a) is aged under 18 at the time the person made the application ...

There is an intention to change this provision and make it a condition that a person must be 18 years of age in order to apply. I myself practised in this area during my 20 years as a government lawyer and saw, at various times, issues pertaining to immigration, so it is not surprising to me to see the department say in its submission:

In recent years the provision to confer citizenship on children under the age of 18 has been increasingly utilised by clients and their agents in an attempt to circumvent migration requirements or as a last resort when all migration options have been exhausted, including requests for ministerial intervention, and removal from Australia is imminent. This can result in children being conferred citizenship but there being no or little prospect of their family remaining lawfully in Australia or returning to Australia in the foreseeable future because there is no migration option available to those family members.

As a consequence, the government is proposing to change this and anticipates that the small number of people who are in exceptional circumstances can be accommodated under current provisions. Again, we support the government on that.

It is really in relation to changes in proposed sections 21(3A) and 21(3B) that the coalition has some concerns. Indeed, they were the subject of a dissenting report by coalition senators, where we set out our concerns about seeking to remove the requirement for a permanent physical or mental incapacity. We maintain that the exception for permanent physical or mental incapacity should be retained. We do set out in our report some of the other concerns that were raised in the hearing. These include concerns about extending the exemption to one category of people to the exclusion of others: those who had suffered torture or trauma outside Australia on the one hand, as against—for example—women who had suffered torture or trauma as a consequence of trafficking on the other.

So we believe that it is important to retain the parameter of permanency. Anyone who has practised in the medicolegal field knows that there is a great difference between ‘permanent’ and ‘temporary’. We are concerned that removing that parameter could mean, as a consequence, opening that up to other groups of people.

As part of the committee inquiry, we took evidence from Professor Rubenstein, who had been part of the Australian Citizenship Test Review Committee. She put forward the suggestion, reiterating what the review committee had said, that a preferable option would be to amend section 21(3)(d) so that it reads that the applicant has a mental or physical incapacity at the time that means that the person is not capable, due to that physical or mental incapacity, of understanding the nature of the application, demonstrating a basic knowledge of English or demonstrating an adequate knowledge of Australia. We argue that mental incapacity is not just an inability to understand the nature of the test but really does cover all three criteria. So our suggestion was that we do retain ‘permanent’ but that we adopt the review committee’s suggested amendment with some modification. Indeed, that was the gist of our suggestion in the minority committee report.

We also looked at a recommendation to bolster assistance in sitting the test. Of course, there are already provisions in the legislation for people who require help if they cannot deal with the computer based testing. Greater assistance may be necessary, and we would encourage that.

One concern is: why do we need to change the citizenship test, given the higher pass rate? That was certainly something we questioned in our report.

The government subsequently wrote to the committee and foreshadowed other amendments, which were referred to in the press, relating to amendments to waive residency requirements for athletes and some other categories of applicants. On behalf of the coalition I would like to say that we are opposed to citizenship for medals, the concept of giving citizenship purely for the purposes of winning more medals. We believe that it was regrettable that the government—despite the fact that I understand it did have time—did not bring those provisions to the committee, since the committee was considering other changes to the citizenship legislation. We think it would have been proper for there to have been examination and scrutiny of those provisions by the committee and by other groups and organisations who may have wished to make submissions on those amendments, allowing them to express their opinions of them.

Our concern is that citizenship is very much a right. I would just refer the Senate to the parts of our dissenting report where we actually noted that citizenship can be acquired through application or conferral, basically in seven situations. A citizenship test snapshot shows that 168,000 people acquired citizenship between 1 October 2007 and 30 June 2009 and, of those, about 138,000 sat the citizenship test. So there were about 34,000 people who fell within the category of permanent physical or mental incapacity or other criteria under the legislation that exempted them from sitting the citizenship test.

We also note from the public record that the government is proposing some amendments which deal with people who are employed overseas or in other categories where they are required to travel as a consequence of their work, and we will look at these amendments when they are available. At this point in time, suffice to say that the coalition certainly have some concerns, as I have outlined this evening.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise tonight to add the Greens contribution to the second reading debate on the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009. I indicate that, while we will be moving amendments that attempt to strengthen and remedy some of our concerns around the proposed changes, we will be supporting the improvements that we believe this bill makes to the overall citizenship test.

Essentially, this bill seeks to amend the Citizenship Act to exempt applicants who cannot complete the test because of mental or physical incapacity occasioned by torture or trauma. In an unrelated matter, it also seeks to tighten the eligibility criteria for persons under 18 by requiring them to be permanent residents before citizenship is granted. As Senator Fierravanti-Wells indicated, there are also amendments that have been circulated by the government relating to a reduced period of residency for persons in special circumstances, such as elite sportspeople, for eligibility to become Australian citizens—and I will have some questions for the minister about that particular amendment during the committee stage.

To begin with, I would like to put on the record that, while the Greens do not support the premise of the citizenship test—we did not support it when it was introduced in 2006 and we do not support the principle of it today—we do acknowledge that this particular bill moves us towards improvements that we think are admirable. We continue to hold concerns about the overall legislation, but we do recognise that it contains recommendations that have come from the Australian Citizenship Test Review Committee that have been implemented, and there are others we would like to see implemented if the minister were to take those on board. They have been recognised by key advocacy groups as positive steps in the right direction.

During the course of the inquiry we heard evidence from key advocacy and legal groups about their concerns with the limitations around the definition of torture and trauma and the removal of the ministerial discretion for minors under 18. In my additional comments to the committee’s report on this bill I outlined that some of the refugee and humanitarian entrants that may have suffered persecution within their countries of origin may fall short of the legal definition of torture.

I was also quite concerned when questioning the department over their definition of torture and trauma that it seems to be simply taken from the Macquarie Dictionary as opposed to being taken from the international law definition as laid out in the international convention against torture. I thought it would be very difficult to apply the Macquarie Dictionary definition in a practical sense as it does not seem to necessarily deal with all of those concerns of people who have suffered torture or trauma. There was very strong criticism in the committee process that this definition, while trying to be inclusive, was actually exclusive. We want to make sure that those people who are most vulnerable are not left out in the cold simply because we have chosen a definition without putting it into the context that it needs to be in order to help them rather than making the situation even harder for them.

The Greens are concerned that relying on such a specific definition as outlined may prevent the practical application of subsection 21(3) from being effective and, as such, we would be seeking to broaden this section. I have circulated some amendments in the chamber earlier today which relate to the types of movement we would like to see in this bill. After listening to Senator Fierravanti-Wells, I hope that she has a good look at our amendments as well and considers them, seeing that they have come directly from the recommendations made by the review committee. They said that the definition of torture and trauma, while admirable, is too exclusive and will not deal with all of their concerns in terms of wanting to ensure that we help make citizenship accessible for people currently unable to sit the citizenship test.

Similarly, we hold concerns that mental or physical incapacity as a result of suffering from torture or trauma outside Australia is too prescriptive, particularly when we look at the issues facing people such as young women who have been trafficked to Australia. Of course, if you are somebody who has been brought to Australia as part of the sex trade then you are not necessarily just relating to the torture and trauma you have had in your homeland but also the torture and trauma that you have suffered here in Australia. So we wanted to make sure that we are not being too exclusive in saying that it is only those people who suffered torture and trauma overseas, and as a result have a mental incapacity to sit the test, who could be considered. It seems to make sense that if we believe that somebody is not able to participate and sit the test because they have an incapacity or an inability to sit the test, it should not matter whether that torture and trauma was carried out in Australia or whether it was carried out overseas. We should accept that it creates an inability to sit the test per se.

The example of the trafficked women, I thought, was a good one in identifying that. But of course there are also people who had been detained for long periods of time in Australian detention centres who could rightly argue that they too have suffered various types of torture and trauma based on their experience, or at least they re-experienced those feelings of torture and trauma because of their long-term detention in Australian immigration detention centres. So I think that we can all acknowledge that if we believe that somebody needs to be given assistance and needs to be given some alternative pathway to sitting the test in order to apply for citizenship, then it should not matter whether their incapacity was created by torture and trauma experienced in Australia or experienced offshore.

While the department has assured my office that such persons are provided with all assistance throughout the test process, surely consideration must be given to expanding the definition to include these various groups of people. I think the simplest way of doing that would be to remove that ‘outside Australia’ category. If we take the view that the actual definition of torture and trauma, as I said, was put forward, admirably, by the government to help this group of vulnerable people, perhaps it has been too exclusive. Let us delete the reference to ‘outside Australia’ and come up with something that is a bit more inclusive and a bit more real in terms of the effects that we are talking about.

It is not appropriate to limit the definition of torture and trauma to those who have only suffered the psychological damage outside Australia. If we are going to apply the definition of torture and trauma that exists in the Macquarie Dictionaryand the reason I reference that is because that was the exact example that was given to me from the department representatives—I do not believe it is an appropriate definition to use when talking about identifying people’s ability or inability to sit the citizenship test. If we want to reference the effects and understand torture and trauma, we should be going with the definition in international law, and that would be in the international convention against torture. As I said, I will be moving amendments to remedy this situation and I do look forward to getting support both from the government and from the opposition to do that. It is not that we do not support the principle. It is about trying to get the right outcome.

Another area of concern that I wish to highlight in my contribution to this bill is about the removal of the ministerial discretion clause which, as it currently stands, effectively allows the minister to grant citizenship to a child or a young person under 18 who is not a resident. However under the proposed subsection 21(5) the government is proposing that a person under 18 years of age would now be required to be a permanent resident at the time of application for citizenship. This begs the question as to whether these decisions are being made necessarily in the best interest of the child or whether the best interest of the child is being taken into account when that decision is being made.

While I appreciate that ministerial discretion still exists under the Migration Act and that the proposed changes may affect only a small number of individuals, the Greens remain concerned that the given visa status of minors is often a result of factors beyond their control. This proposed change could potentially disadvantage a minor’s prospect of being an eligible Australian citizen or applying successfully for Australian citizenship, based on the fact that decisions have been made on their behalf which have not necessarily been made in their best interests. While I understand that this would relate only to a small number of people, the reason that we support the continuation of that ministerial discretion is that we believe the minister in those cases should make a decision based on what is best for that child and not necessarily have them caught out because of exclusive decisions that have been made by other people that may not necessarily have been in their best interests. During evidence presented to this inquiry on this bill, the Refugee and Immigration Legal Centre stated:

Australia’s obligations under the CRC to act in the best interests of the child must be the guiding and determining factor in deciding whether a child can be conferred Australian citizenship. Of particular relevance is the degree of the child’s connection to Australia, to the extent that it may amount to a form of citizenship, rather than their formal visa status.

I understand their concerns around the usage of that current allowance of ministerial discretion but, as I said, for the small amount of people that this does affect I would like the minister to have the ability to remedy a solution for these young people which is in their best interests and not something that is simply put in the too-hard basket.

I also acknowledge that perhaps there is a need to change the Migration Act to deal with some of these concerns. If it is not a citizenship issue, then perhaps it is a migration issue about their filing an application for permanent residency. I would like to see that tackled by the minister and the department before we start taking away the ability of young people to be able to access this particular pathway to citizenship.

While I have no doubt that the current Minister for Immigration and Citizenship does take the best interests of the child into account when dealing with visa resolutions, the Greens’ primary concern is that by removing the ministerial discretion clause we are removing any link to the Convention on the Rights of the Child, which could be misused in the future when dealing with these particular cases. It is for this reason that I foreshadow that the Greens will be moving to omit proposed section 21(5) and replace it with a clause that explicitly enshrines within the Citizenship Act that the primary consideration for the minister, on any decision made on the eligibility for Australian citizenship, should be the best interests of the child as per article 3 of the United Nations convention. I have listened to Senator Fierravanti-Wells speaking, and it sounds as though the opposition would not support this particular amendment, but I would still like to put it clearly to the chamber that we need to be ensuring that our ministers and our representatives of government have the ability to make decisions that are in the best interests of children and not simply put in the too-hard basket because those decisions may not suit everybody.

Concern surrounding the lack of alternative pathways to citizenship is also one of the Greens’ concerns. We were presented with these concerns during the committee process. Many of the witnesses suggested that this bill was an appropriate avenue for the government to implement these alternative pathways. There is already reference to assistance to undertake the citizenship test through the act, but there is no clear definition of what that assistance should be or how that pathway should look. Although I understand that the government is working on that, I believe that this would have been a good opportunity for the government to implement some of these alternative pathways while we are discussing the importance of ensuring there is a smooth transition from permanent residency to citizenship. If there are groups of people who need alternative pathways, let us talk about that. This would have been the appropriate place to do it. I am disappointed that we do not see the government’s plans which have been foreshadowed in various forums but which are not in this legislation. I look forward to the minister bringing them forward sooner rather than later.

Ideally, as I outlined in the Greens’ additional comments to this bill in the committee report, we would like to see some sort of review mechanism become part of the Commonwealth Ombudsman’s role so no applicant is unfairly disadvantaged for reasons beyond their control.

Debate interrupted.