Thursday, 17 September 2009
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009
Consideration in Detail
Bill—by leave—taken as a whole.
I move the amendment circulated in my name:
(1) Schedule 2, page 6 (line 1) to page 10 (line 20), omit the Schedule, substitute:
Schedule 2Amendments relating to additional categories
Australian Citizenship Act 2007
1 After subsection 21(8)
Australian public interest
(9) A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a) granting a certificate of Australian citizenship to the person would be in the Australian public interest because of exceptional circumstances relating to the applicant; and
(b) the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application; and
(c) the person has met the requirements of subsection (2A).
(10) As soon as practicable after the end of each financial year, the Department must publish on its website and present to each House of the Parliament a list of all the persons who received citizenship under subsection (9) during the year and the reasons for the decision.
Individuals employed overseas
(11) A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a) at the time the person made the application, the person is engaged in work that requires them to regularly travel outside Australia; and
(b) the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application; and
(c) the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and
(d) the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and
(e) the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and
(f) the person has demonstrated they would suffer significant hardship or disadvantage if they did not receive citizenship; and
(g) the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and
(h) the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application; and
(i) the person has met the requirements of subsection (2A).
(12) As soon as practicable after the end of each financial year, the Department must publish on its website and present to each House of the Parliament a list of all the persons who received citizenship under subsection (10) during the year and the reasons for the decision.
2 After section 22
22A Minister’s decision—Australian public interest
(1) The Minister’s decision under subsection 24(1) in relation to a person who is eligible to become an Australian citizen under subsection 21(9) cannot be delegated.
(2) In making a decision referred to in subsection (1) the Minister must give consideration to the fact that the applicant’s becoming an Australian citizen would be of benefit to Australia.
Ministerial discretion—administrative error
(3) For the purposes of paragraph 21(9)(b), the Minister may treat a period as one in which the applicant was not present in Australia as an unlawful non-citizen if the Minister considers the applicant was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.
22B Minister’s decision—individuals employed overseas
(1) The Minister’s decision under subsection 24(1) in relation to a person who is eligible to become an Australian citizen under subsection 21(11) cannot be delegated.
(2) In making a decision referred to in subsection (1) the Minister must give consideration to the fact that the person would suffer significant hardship or disadvantage if they did not receive citizenship.
Confinement in prison or psychiatric institution
(3) Subject to subsection (4), the person is taken not to satisfy paragraph 21(11)(c) if, at any time during the 4 year period mentioned in that paragraph, the person was:
(a) confined in a prison; or
(b) confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.
(4) The Minister may decide that subsection (3) does not apply in relation to the person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.
Ministerial discretion—administrative error
(5) For the purposes of paragraph 21(11)(g), the Minister may treat a period as one in which the person was a permanent resident if the Minister considers that, because of an administrative error, the person was not a permanent resident during that period.
(6) For the purposes of paragraph 21(11)(h), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.
3 Subsection 24(1A)
Omit “or (8)”, substitute “, (8), (9) or (11)”.
4 Subsection 24(2)
Omit “or (7)”, substitute “, (7), (9) or (11)”.
We have an extraordinary situation here. The coalition values Australian citizenship as a privilege and an honour to be conferred on men, women and children who can demonstrate a commitment to this country through embracing our values, our ideals and our beliefs and speak functional English so that they can fully participate in our parliamentary democracy, our economy and our communities. I am proud when I go to the citizenship ceremonies and see men, women and children of all nationalities who have come to Australia. They are from all races and from a range of backgrounds. They may be rich or poor, skilled or not skilled. There is a whole range of people standing there and proudly proclaiming that they agree with the values and ideals of our country and the responsibilities of citizenship. These people have served a four-year residency in Australia and have come to know and love this country.
We are concerned that this government is choosing to discount the value of the citizenship certificate, or being a citizen in this country, by simply looking at whether or not the applicant is a medal prospect. There is no way that this business can be disguised. The amendment bill that this government is putting before us may have had its words watered down a little so that it now refers to ‘a special activity’, but the only people who will be able to present to the minister for a discounted residency in order to gain citizenship are those nominated by either Tennis Australia or the Australian Olympic Committee. This is about people who may be able to win medals for Australia internationally. Shame! This is a devaluing of Australian citizenship. Australians love their sport and we are proud when one of our sportspeople stands on the podium and wins a medal for our country. But it is not a matter of a medal at all costs—and this is what this legislation seeks to impose.
Just today we have been told in the media that the Australian Olympic Committee is arranging to have Ms Borodulina, the speed skater this legislation is all about, sworn in as an Australian citizen at the embassy in South Korea. So Ms Borodulina, who is to be fast-tracked into citizenship, will not even be in Australia to gain her citizenship when this bill becomes law. Next Tuesday she will become an Australian citizen for no other reason, it would seem, than that she is a medal prospect if she becomes a member of the Australian Winter Olympics team. Shame! We do not believe Australians are that crass. We believe they honour and value Australian citizenship. So we have proposed a substantive amendment to the bill, which says no to this.
Citizenship should be treated very seriously. We agree that there may be some exceptional circumstances where it may be in the public interest for a man or woman who can contribute to Australia in an extraordinary way to become an Australian citizen even when they may not have served the full four-year residency requirement. In our amendment we have proposed that the minister should have the discretion to grant citizenship in these circumstances but the discretion would not be able to be delegated and it would be fully transparent in that, if ever such a decision is taken, the name of the person would be put before the parliament and published on the Department of Immigration and Citizenship website. The decision would therefore be transparent and the government would be responsible and accountable.
I find it extraordinary that the Parliamentary Secretary for Multicultural Affairs and Settlement Services would suggest that the minister of the day would so lack integrity that they would agree to someone who has never been in Australia, and who is of no interest to Australia, becoming an Australian citizen. I find it extraordinary that he would be so doubtful that his minister would have the integrity to exercise such a discretion. So we say quite bluntly and clearly that we cannot agree to an amendment which simply reflects the urgings of the Australian Olympic Committee and Tennis Australia. We believe we are a bigger nation than that in heart and spirit. We believe that the variety of people who step forward to become Australians is a strength—the diversity of race, background and skills. It is about the diversity they contribute to Australia—it might be as a professional or as a skilled tradesperson or as someone who is raising a family. It is not about elitism. (Time expired)
I will make a few points. Firstly, the eligibility requirements for citizenship in section 21 of the act remain in place. There are no changes whatsoever to the requirements for becoming a citizen. Secondly, we are here today because, under the previous government, the permanent residency requirement went from two years to four years. A few years ago the people we are arguing about today would have been quite eligible for citizenship. The extension of the residency requirement to four years means applicants have to be here for a far greater length of time than would have been the case seven or eight years ago.
Whilst the shadow spokesperson might be correct in saying that under their proposal the minister can refuse to give people visas, the fact of life is that people would still be able to apply. It is not only about what the minister would do; it is about the possibility of people launching vexatious claims and cluttering the system. A minister in this portfolio, whether Labor or Liberal, already has a significant workload with regard to ministerial discretion in the area of refugees, so why does the opposition insist that any Tom, Dick or Harry should be able to launch these kinds of claims?
At the moment, only the Australian Olympic Committee, the Paralympic Committee and Tennis Australia can make these references. But that is not the end of Western civilisation; that is not the end of the game. The only reason why these are the only three organisations listed at the moment is that they are the ones who came to the government and asked for it. Others can be added at the minister’s direction within five minutes.—and we have no doubt that other organisations will come forward in the future. This is not some conspiracy theory concocted between the Australian Olympic Committee and the government; it has wider application for the future.
We very firmly reject these opposition submissions. Below the surface, this is an attempt to mire the debate, to somehow put forward the proposition that the fact that somebody might be able to represent Australia at the Olympic Games or the Paralympic Games is a weakening of our rules, a weakening of our requirements. It is all to do with border protection again. That is what driving the opposition’s position in this matter, not the substantive legislation itself.
The next part of the amendment which I have moved is to do with offshore workers. We agree that there are some people whose profession is such that they are required to be outside Australia for very long periods of time, who may have family who are Australians, who normally reside in the country but also have long absences. We can understand that such people would be concerned, saddened and perhaps have their life diminished if they were not able to take up Australian citizenship. So in this part of the amendment we also propose a ministerial discretion, again not able to be delegated and fully transparent, because any ministerial decision would be required to be placed before parliament or on the website.
We want to wrap a whole number of residency requirements around this discretion in relation to individuals employed overseas. These include that the person has been in Australia for four years before making the application, that the person was ordinarily resident in Australia during that period of four years, that the person has been in Australia for a total of 480 days during the period of four years immediately before the application, that the person was present in Australia for a total of at least 120 days during the period of 12 months before they made the application, that the person was a permanent resident for the 12 months immediately before the application, that the person was not present in Australia as an unlawful noncitizen at any time during the period of four years immediately before the day they made the application and that the person has met the requirements of subsection (2A), which is of course the citizenship test.
Most importantly, the person would need to demonstrate that they would suffer significant hardship or disadvantage if they did not receive citizenship, and that is the point. We do not believe this conferral should be automatic. That is what the government’s legislative amendment would do. Someone in the airline industry or working on offshore oil rigs would simply be able to tick a box and, despite the fact that they live most of the time outside Australia, automatically they would be eligible for citizenship.
As I said before, we believe that citizenship is a privilege and a very special responsibility, and therefore we say that people in this particular category of worker should also go before the minister, who would exercise discretion subject to those residency conditions I have just named. That is why we are arguing that we have a much better way of retaining the integrity of our citizenship. We have a way to give the minister some flexibility and discretion to deal with the complexities that individuals present.
This is the type of flexibility which must always be at top of mind in the immigration policy area. We are distressed that this minister consistently and regularly tries to do away with ministerial discretion in the portfolio. This portfolio is about complex human responses to life circumstances and environments. Therefore we argue that ministerial discretion is important in this amendment, in relation to determining both public interest for a person who can show exceptional circumstances and in relation to people who have to be employed overseas. We commend these amendments to the House.
This part of the amendment is opposed on very similar grounds to those on which we oppose the other part of the amendment. We have a group of people here, including oil rig workers, people that fly our international planes and people who might be involved in very important trade work, who cannot meet the current stipulation with regard to how long they are in Australia. These are people with very real problems. These are people who, by the nature of the work they do, are particularly contributors to this country. To say that this involves some disrespect to the country, some undermining of citizenship, some lack of commitment to the nation, is really preposterous.
As I indicated earlier, we have a portfolio area where there is a very extensive amount of ministerial discretion. It is a portfolio where we see people making repeat applications for ministerial discretion in relation to refugee protection visas. It is a portfolio where the minister has more than enough duties—I can assure you—with regard to border protection, citizenship rules and multicultural policy without having his life taken up with handling the multitude of possibly vexatious claims that would be launched under the amendment the opposition is putting forward.
With regard to this provision, we have people with very concrete, very real reasons that they are not in the country. This is not a provision which is going to cover people without a legitimate claim. Yes, there is some questioning of whether ministerial discretion is the best way to go. Even when it exists, it is quite clear that it is abused in this country. I reiterate that, under the previous government, we know that it was a subject of very widespread controversy in the refugee and humanitarian area. To come here today and advocate that the minister should have to consider not only legitimate claims but also go through the application of every oil rig worker that was not here for the requisite number of days—that he should be personally involved in this—is preposterous. The provisions are sensible and they deal with very real personal circumstances. We reject the amendment.
That the amendment (Dr Stone’s) be agreed to.
That the bill be agreed to.