Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Hansard source

I understand the sentiments expressed by Senator Hanson-Young and share some of the concerns in the sense that I think the Migration Act does not currently deal adequately with the needs and rights of children. It is antiquated in that respect. I have commissioned the department to do a complete review of how we interact with children and how the act affects children to try and ensure that the provisions are brought up to 21st century standards and that we place the best interests of the child at the forefront of every decision that we take.

On taking up my role as Minister for Immigration and Citizenship I was shocked to find out that I am guardian of children who I am also legally detaining. It seems to me there is a bit of conflict of interest there. If I am the guardian and—I should not use the word ‘jailer’—the person who detains them, perhaps I would have difficulty in resolving those conflicts. We certainly would not do it in that way in any other setting. Again, that is not because these provisions were borne out of a bad motive; it is just that the minister was appointed as guardian of people who arrive unlawfully. Clearly there are instances like that and clearly there has been a lot of concern about children whose parents are detained and how we treat them. There are questions about how children are removed et cetera when they and their family are found to be unlawful.

We will be doing a lot of work in this space. I intend to bring that before the parliament at some stage as well as dealing with the procedural issues. We have done some work already. We need to understand that, effectively, the Australian Citizenship Act has begun to be used as a means by which people can circumvent the Migration Act and the rules that apply. Effectively, we have the situation where people who have no right to be resident in Australia apply for citizenship as a way of delaying their departure and the departure of their families, often in the hope of having children reach an age where they can qualify for citizenship, and pursue all means at their disposal to overcome migration decisions. I know some of the cases that have been pursued on this ground were pursued for the right reasons. Professor Kim Rubenstein and others have done a range of work in this area, very much with the best interests of children at heart. I acknowledge that and her concerns about this measure. I respect her opinion. I take on board the concerns she has raised.

If you look at what is occurring, we have seen a dramatic increase in the number of applications for citizenship from persons who do not have a right to stay in Australia. In the past 13 months we have seen 49 litigants at the AAT, 50 per cent of whom had previously been unsuccessful at seeking a protection visa or ministerial intervention. These people have failed to win their argument for being allowed to stay in the country and then use an application through the Australian Citizenship Act to try and prevent their departure from Australia. In the last 11 months we have seen a growing number of applications. I think we are up to over 100 now. The number of people who have been previously unsuccessful in protection or ministerial intervention requests is growing as a proportion as well.

Senator Fierravanti-Wells will know about this: unfortunately in migration law, when a crack opens trucks usually start pouring through. While I understand the sentiments of some of those who seek to access the Australian Citizenship Act in this way, what we have seen is the start of a move to try and use a citizenship application to circumvent migration law. Fundamentally, the principle we seek to enshrine here is that only people who have a right to be in Australia ought to be able to apply for citizenship—people who have a right to residency. You have to satisfy the residency requirement first—the right to be in Australia—before you can qualify to become an Australian citizen. Unless we close this loophole, you can be someone who has never lived in Australia and has no right to be in Australia, but you can pursue citizenship. It is a nonsense. I think we deal adequately with some of the special cases that occur, but this is not the way to resolve some of the special cases.

As I said, we have serious concern about the way these provisions are now being used. To be very frank, we are seeking to close off what we think is a loophole which is beginning to be utilised, if not exploited, and which has the potential to become a very serious impediment to the proper operation of the Migration Act and regulations. People who have no right to reside in Australia or stay in Australia are able to access these provisions in applying for citizenship to frustrate their departure from Australia. People who have had access to the department’s decision making, access to the Migration Review Tribunal or the Refugee Review Tribunal, access to ministerial interventions and have had three goes at having their case reviewed, and have failed at each level, then seek to use an alternative path through the Australian Citizenship Act.

Quite frankly, it would not be good public policy to leave that ajar and, as I say, the number of cases and the history of the clients convince us that there is a developing problem and an attempt to exploit those provisions. We think we can adequately deal with other concerns in other ways, but we need to close off this loophole. It is the case that I am very sensitive to the concerns with the way the Migration Act deals with children and deals with putting their interests first. I do not think we do that adequately now and I am concerned about it. I am concerned about my responsibilities in that regard and I have been pushing the department to do the work necessary to try to resolve those issues. That may require legislation; it may require regulations; it certainly requires a change of policy. But a suite of issues need to be addressed and I think addressing them in the migration context is the way to do it, not using the Australian Citizenship Act to remedy concerns about what might be in the Migration Act or the way that operates.