Thursday, 30 October 2014
Australian Citizenship and Other Legislation Amendment Bill 2014; Second Reading
I rise to speak on the Australian Citizenship and Other Legislation Amendment Bill 2014 currently before the House. This bill is designed to clarify and refine certain aspects of the Australian Citizenship Act 2007. The proposed changes in this bill represent the first update of the new Citizenship Act introduced in 2007 and contain a series of amendments that will deal with the acquisition and revocation of citizenship.
These amendments also provide an increase to the discretionary powers of the minister with respect to assessing the character of an applicant for citizenship. We recognise that the government must be able to manage the citizenship program appropriately and, where current deficiencies exist in the system, we understand the government's desire to resolve these issues. The opposition agree with this logical premise. However, the subject of these changes relates to the most central aspect of our migration program: the opportunity to call oneself an Australian.
The privilege of being part of our national identity and family comes with significant responsibilities and so too must the administration of the program. This government has ignored that responsibility in seeking this House to pass this legislation without providing adequate time for consideration of this bill. The changes contained in this bill are not driven by any urgency nor do they have any implications for the national security situation we are currently facing. Rather this bill is a tune-up of the Citizenship Act after its first seven years of operation.
There is no good reason why we should not allow just two more weeks until the next sitting fortnight to permit a more fulsome debate on this matter before we deal with this bill in the House, so that the opposition and indeed all members may have the chance to properly scrutinise this bill. The fact is, beyond the government, none of us saw this bill nor the explanatory memorandum—some 100 pages of legislative material—until last Thursday, when the bill was introduced into the House.
The government's attempt to ram through this legislation without providing an opportunity for proper and careful consideration shows a lack of respect for our citizenship program. This is not an area of policy with which the opposition are prepared to be so flippant. It is on this procedural basis that we will be opposing this bill in the House, because there has simply not been enough time allocated to properly consider this very important piece of legislation. This is not our substantive position on the bill. Labor's substantial position on this bill will be reflected by the way in which we deal with the bill in the Senate, having had the opportunity to fully and properly consider the bill over the next two weeks.
In conclusion, it is important that we deal with matters relating to citizenship with the highest diligence. It is the greatest gift a nation can bestow on a migrant. The rich fabric of our wonderful country is because of the terrific migration program this country has. Labor will not rush down the path of passing legislation that affects this policy area until we are wholeheartedly satisfied it is appropriate in all respects and will bear no unintended consequences or impact on matters of citizenship.
It is a privilege to support the Australian Citizenship and Other Legislation Amendment Bill 2014. These amendments are absolutely necessary for strengthening program integrity. It is interesting that the opposition are copping out on taking a position in this chamber. If they took the time to examine these amendments in the same way that they examined the counter-terrorism foreign fighters legislation, they would see these are necessary amendments to strengthen the immigration program and to ensure that we have some flexibility and available benchmarks to deal with some of the different situations that have arisen with immigration and Australian citizenship acts over the years.
I am speaking about three basic things. There is strengthening program integrity, underlining the importance of connection to Australia and improving decision making. Through the various amendments to different bills we see in this place, the Labor Party continue to rail against the idea of ministerial discretion and giving ministers the available tools to make flexible and correct decision in relation to our immigration program. Why would the Labor Party want a legislative instrument rather than the available minister with ministerial discretion, with flexible legislation and with more ability to make a judgement? We are dealing with human nature. Given that we are dealing with the capacity of human beings to be all possible things that human beings can be, there is not really a set of laws, or an inflexible set of rules, that you can use to govern character. Allowing the minister to have more capacity for judgement, subject to the appropriate scrutinies of the parliament, the media and other forms in our democracy, is an improvement to the regime of Australian citizenship.
The member for Greenway would know, as I know, there are many issues with character when people migrate to Australia. Even this week, I was approached about a constituent matter. A person had obtained permanent residency and had done something I regard as very duplicitous in character and wrong by Australian standards. Once obtaining permanent residency, there is no way of winding back the clock and assessing that wrong act or that wrong character. All of us in this place know what I am talking about. As local members, we have it all the time. There are people who come here and do the wrong thing to obtain citizenship. It is just a fact. It may be a small proportion but it happens. Currently, there are not many ways of dealing with that, often to the detriment of other citizens here who are the victims of much of this activity.
Within the group of things I have outlined, you will see there are some important reasons why the government is moving these amendments. I hope the opposition in the Senate come to a sensible position and understand that ministers do need more discretion and more capacity to exercise reasonable and flexible judgements about character.
In relation to strengthening program integrity, the measures we are putting forward in this bill allow the minister to revoke citizenship on the grounds of an individual's engagement in fraud or misrepresentation in the migration or citizenship process—there would barely be a member in here who could argue against such a thing. This provision is without the requirement, of course, for a prior conviction of relevant criminal offences. In the past, a relevant criminal offence had to be proven, but a fraud or misrepresentation in this process can now be used by the minister to revoke citizenship on these grounds. That would be a big strengthening of the program's integrity. It is a good measure. There are not going to be mass revocations of citizenship on these grounds, but it is going to give that extra flexibility to the minister when there has been proven fraud or misrepresentation by a person of poor character to revoke citizenship. That is a good thing.
There is the provision to extend the good character requirement to include applicants under 18 years of age. This takes note of the fact that people under 18 can also be of bad character or do the wrong thing. This provision gives the minister some flexibility to deal with situations whereas at the moment that does not apply. There is the provision to include the bar on approval for criminal offences in all citizenship streams—that is self-explanatory—and to include references to contemporary sentencing practices in the bar on approval for criminal offences. Importantly, this area of amendment enables the minister to cancel approval of citizenship by conferral prior to commitment if the applicant is no longer eligible. It is a small thing but, once again, enables the minister to use that discretion and judgement in a situation that cannot be defined, or a multiplicity of situations that cannot be defined, in every single statute or piece of legislation.
The legislation will also allow the minister to defer the applicant taking the pledge of commitment for up to two years and align the grounds for deferral with the grounds for cancellation of approval. It also requires those who automatically acquire citizenship on adoption in Australia to have commenced the adoption process before turning 18 years of age—something which I think would have widespread community support. It is a reasonable standard—a standard that we can all support and something that I think the opposition could also see their way to supporting. Importantly, strengthening program integrity will bring consistency to the resumption of citizenship by requiring a standardised 12-month waiting period—again, bringing standards and consistency to this important area of law.
The second area I mentioned was underlining the importance of connection to Australia. This bill will clarify the residence requirements by specifying when the four-year lawful period commences and that the 12-month permanent residency must be continuous. Making this continuous and dealing with these loophole situations where the 12 months required for permanent residence could be dealt with in another country or a person who was not actually a permanent resident in practice is very, very important.
The bill also clarifies who is covered by the partner discretion in the residence requirement and inserts a minimal physical presence requirement for those claiming the partner discretion for absences from Australia. In my view, tightening these areas is particularly important. As local members, one of the most tricky areas in citizenship and permanent residence is where people who have been of bad character have entered a relationship deliberately just to obtain permanent residency or citizenship. In situations where we see people taking advantage of loopholes in our law to obtain permanent residency—those who come here and then turn out to be of bad character or badly treat an Australian citizen—we really do need to be more realistic about the complexity of relationships and the complexity of human nature. That is why I support these provisions, which remove some of these loopholes, and, particularly, clarify who is covered by the partner discretion in the residency requirement.
This bill will also provide the power to make a legislative instrument setting out when a period of unlawful presence may be treated as lawful presence. That gives the minister the power to make a legislative instrument and gives the minister more discretion, which I support. It does not really matter which immigration minister you look at over the years—ministers for immigration in the Keating era, in the Howard era and right through to today—I think you would find that they would argue in favour of these sorts of abilities for the minister to deal with very complex and difficult situations. For the minister to have the ability to outline when a period of unlawful presence could be treated as lawful is just dealing with the realities of a modern immigration system where people can end up being unlawful here for any range of reasons but may be required to have a lawful presence to obtain permanent residency or citizenship.
The bill also puts beyond doubt that children born in Australia to parents with diplomatic privileges and immunities are not eligible for Australian citizenship. I think it is important that we clarify these things. It is an improvement to our Australian Citizenship Act. There is no automatic right for the children of people with diplomatic privileges and immunities who are not eligible for Australian citizenship to be eligible. That clarification is common sense.
You will also see in this bill improved decision-making—that is, making holders of prescribed visas eligible for citizenship by conferral before entering Australia and enabling the use an disclosure of personal information about a client under the Migration Act 1956 to be used for the purposes of the Citizenship Act and vice versa. When you look through the provisions in this area of improved decision-making, you see that the personal decisions made by the minister in the public interest are not subject to the Merits Review Tribunal. We have seen some cases in this regard where the minister does need power to set aside decisions—whether they be from the Merits Review Tribunal or the Administrative Appeals Tribunal—concerning character and identity if it is in the public interest. Again, giving more ministerial discretion, subject to parliamentary and public scrutiny, is going to benefit our ministers, our democracy and the administration of this act. I think if any shadow minister here thought about this and thought about the powers they would need in administering this area as a minister, they would see that this is the kind of flexibility and improved arrangements that any minister for immigration needs to ensure that they are dealing with the complex human situations that arise in immigration. I strongly support these improved decision-making powers.
The changes to the act proposed in this bill are necessary to uphold the value of Australian citizenship and preserve the integrity of the citizenship program. It is the government's view that the amendments to this act will improve the delivery of the program. The bill will clarify the residence requirement and the partner discretion for absences from Australia. It will also allow concerns about whether an applicant is truly eligible for citizenship to be fully investigated prior to taking the pledge. There are cases which do need to be fully investigated before any Australian would like potential citizens to be taking the pledge. The bill will bring consistency to the character and criminal offence provisions across all application streams. Having consistent character requirements across all immigration streams will be very important in improving integrity. The bill also allows for consideration of all circumstances when deciding whether a citizen by descent should not have been registered and should be able to remain an Australian citizen.
There have been some queries about what new powers the bill proposes. This is something that I addressed earlier, but I will again spell out a couple of things, because I think they are important. The power to revoke citizenship for misrepresentation or fraud without prior conviction is something that I regard as extremely important because there is not always a prior conviction yet there has been misrepresentation and fraud. Again, I would stress to every member of this House and to people in the Senate—who may not be so engaged with constituents as members of this House—that there is not a member in this House who deals on a day-to-day basis with an immigration caseload through their office who would not be aware of a case of citizenship where there has been misrepresentation or fraud. There would not be one member of this chamber who could come forward and say, 'I'm unaware of a case of this nature.'
Given that we are all aware of them and given that anyone who deals with the immigration program on a day-to-day basis at any length is aware of many of these cases, often in very sad or tragic situations, this new power for a minister—any minister; not only a minister currently in government but also ministers into the future—to revoke citizenship for those misrepresentations and frauds on people is, again, a very defensible and common-sense implementation of a very big improvement to the integrity of the immigration system. It allows the minister to take the action when the minister is satisfied that fraud has occurred, even if there has been no criminal prosecution. We know that there are often difficulties in obtaining criminal prosecutions in different legal regimes and jurisdictions. Here in Australia there may not be enough evidence to prosecute, and yet we are certain that a misrepresentation or fraud has occurred.
So, I strongly support these provisions that enhance program integrity. These amendments are the next common-sense evolution of the Australian Citizenship Act 2007. They ought to be supported by members opposite, and I note that the member for Greenway was saying that there was no real position in this chamber but that it would be reflected in the Senate. I urge members of the opposition simply to look at this through the eyes of a competent immigration minister seeking to have maximum flexibility to make the right decisions in the interests of all Australians and in the interests of a strong immigration program.
I rise to speak today on the Australian Citizenship and Other Legislation Amendment Bill 2014. I will begin by acknowledging that this year is the 65th anniversary of Australian citizenship. The bill is an omnibus bill, but I want to focus, in my contribution, on one part of the bill and also make some general remarks about the work of the minister in this crucial area.
The bill has a range of amendments grouped broadly into three themes: firstly, strengthening program integrity; secondly, underlying the importance of connection to Australia; and, thirdly, improving decision making. I cannot stress strongly enough the degree to which I agree with the minister's remarks that Australian citizenship is something to be treasured. It is the common bond that unites all of us, whether we are born here or have chosen to make this our home.
Australian citizenship involves a commitment to this country and to its people. It is a privilege; it is not a right. We should only bestow it on those people who honour and accept the values of our society and meet our community expectations. Currently, under the citizenship act, revocation may be considered in cases where a person has acquired Australian citizenship by application and has been convicted of making a false representation in relation to a migration and citizenship application that resulted in them becoming an Australian citizen; or, alternatively, has committed a serious criminal offence prior to becoming an Australian citizen and failed to disclose that in respect to the application; or is convicted of an offence after making an application to become an Australian citizen.
A serious offence is one where a person was sentenced to a term exceeding 12 months. This provision applies to serious criminal offences committed in Australia or overseas, or alternatively where an individual has acquired citizenship since 1 July 2007 as a result of a third-party fraud where the third party who committed the offence has been convicted of the offence.
After one or more of these criteria have been met, the minister must then be satisfied that it would be contrary to the public interest for the person to remain as an Australian citizen. The minister can revoke Australian citizenship where a person acquires it 'by application'. This means through conferral, descent, or adoption in accordance with the Hague Convention on Intercountry Adoption. The bill expands the minister's power to revoke citizenship when the minister is satisfied that the person became a citizen as a result of fraud or misrepresentation by allowing revocation without a prior criminal conviction or fraud.
Law enforcement agencies and courts have limited capacity to prosecute all cases of fraud, or any other type of criminal behaviour, thereby reducing the ability of government to ensure that high community behavioural expectations are maintained with respect to those that have obtained Australian citizenship. In line with other revocation provisions, it is intended that the minister must be satisfied that it would be contrary to the public interest for a person to remain a citizen.
The citizenship act has two mechanisms for assessing the character of an applicant. There is the good character requirement, which extends to everyone aged 18 and over who applies to become a citizen. The bill amends these provisions to require applicants aged under 18 also to be of good character. I can cite a number of recent examples for the House's benefit, where people who are under the age of 18 would not meet the good character test. They are of poor character—from a national security perspective or another perspective—are living in our community and have undertaken acts of violence.
I had the privilege of having had a professional life before coming to this place. As many have heard, it was a professional life that involved representing individuals who found themselves in criminal strife. I am probably best positioned to make the assertion that I have come across very many people who are under the age of 18 and have committed offences which would make them not of good character. I am pleased to see that this act strengthens the powers of the minister to deal with individuals in that circumstance.
Secondly, the act currently prevents a minister from approving a person becoming a citizen by conferral in circumstances related to criminal offences. In addition, the bill amends the offence provisions to reflect modern sentencing practices—including where a person is subject to a court order or a home detention, or where they have not been sentenced to prison but nonetheless are under an obligation to the court. Sentencing flexibility, I am sure that the Minister for Justice would agree with me, has seen a blossoming of alternative sentencing options for judges and magistrates. The traditional sentencing matrix of a term of imprisonment or no term of imprisonment, no longer applies. We now have in almost every jurisdiction in this country situations where you can have what I have come to term 'fused penalties'—a combination of terms of imprisonment and non-custodial sentences. These changes effectively acknowledge that change and provide the minister with some flexibility around various sentencing regimes so that the minister is no longer stuck in the situation where, if an individual is not sentenced to a term of imprisonment, he cannot activate the relevant arm of the test.
The bill further provides that the minister may cancel approval if satisfied that the person no longer meets other eligibility requirements. The bill extends the maximum period of time when the minister can delay an applicant making the pledge of commitment from 12 months to two years, recognising, most importantly, that investigations of this nature are sometimes complex and require longer than 12 months to be undertaken. The bill introduces safeguards to the provision giving automatic citizenship to those whose adoptions are finalised in Australia, by requiring such adoptions to be commenced before the applicant turns 18. This amendment is concerned with preventing individuals seeking adoption as adults to avoid being removed from Australia after their visas are cancelled under the Migration Act because they are no longer of good character.
These amendments in just one section of the large bill are common-sense and are consistent with the government's strong stand to protect our communities from the introduced threat from foreign lands of criminal acts and terror related activities. I make the observation that this is very much a measure aimed at further enhancing our sovereign right to control our borders. I commend the minister for his leadership in recent months in this space.
The various sections of the community who are opposed to the government's position are amongst some of the most persistent in our national discourse. This is truly an area where often difficult and unpalatable decisions are required in order to protect not only our lives but also our way of life. The minister has been stoic in his defence of these policies and, I must say, vindicated by events. I imagine it would not be easy to make these tough decisions and I do not envy the minister for the abuse that is often directed at him or at his department. It is important that we have a minister who has the intestinal fortitude to make these often unpalatable and difficult decisions.
If Australia were to lose control of its borders, it would become a magnet for a number of undesirables across the world who would seek to either gain entry into our country for nefarious purposes themselves or exploit those same weaknesses for personal profit and, in the process, lead hundreds to their deaths. Some on the left—and we heard some across the chamber this morning—would suggest that this approach is inhumane or indeed barbaric, but the simple fact is that, when we strengthen our moral resolve and remove the incentives from the hands of those who seek to threaten our society, we also reduce their power over their victims.
There is nothing humane about empowering criminals. It is an insidious trade and there is absolutely nothing powerful about empowering those who seek to profit from that. You have heard in this place, Mr Deputy Speaker, as I have, many times about those who are encouraged to make the dangerous journey by the very criminals I have mentioned. You have heard, as I have, sadly and tragically of the estimated 1,200 people who we expect lost their lives in the course of making that treacherous and dangerous journey. There is absolutely nothing humane about a regime that encourages that outcome. I am sure this is certainly not anyone's aim in this place but, if you establish an architecture and a regime and allow a matrix of events to present themselves so as to weaken our resolve, you effectively create an asset for those who seek to profit from this insidious trade. Importantly, we need to ensure that in the matrix we do not create a situation where we are in some way encouraging that insidious trade.
I began by noting the importance of citizenship. It is ultimately the grand prize that this nation offers and we need at every opportunity to ensure that the structures around its grant are of the highest quality and ensure that the grant is not made in circumstances where misinformation was provided to those making the decision. To the extent that this bill strengthens that framework, I commend it to the House. It is critical to not just securing our borders but the order and good governance of our nation. We need the best-quality citizens and they should only be entitled to the grand prize that we offer—citizenship—in the most appropriate of circumstances.
My parents have lived this journey. I am grateful for the opportunities that this nation has given them and thereby given me. It is a mutual obligation, if you like. We need to make sure that those who do not want to buy into that mutual obligation are not entitled to the grand prize of citizenship. I commend the bill to the House. I am conscious that we have not heard the position that those opposite will take in the other place. I encourage them to think seriously about how important and integral they are to the ongoing good governance of this country.