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

by leave—I move government amendments (1) to (9) together:

(1)    Clause 19B, page 21 (line 18), omit “(7)”, substitute “(7A)”.

(2)    Clause 19D, page 24 (line 5), before “has been”, insert “subject to subsection (7A),”.

(3)    Clause 19D, page 24 (after line 20), after subclause (7), insert:

     (7A)    The Minister may decide that subparagraph (6)(a)(ii) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s conviction, the Minister is satisfied that it would be unreasonable for that subparagraph to apply in relation to the person.

(4)    Clause 19G, page 26 (line 4), omit “(4B)”, substitute “(4C)”.

(5)    Clause 24, page 34 (line 17), before “has been”, insert “subject to subsection (4C),”.

(6)    Clause 24, page 34 (after line 32), after subclause (4B), insert:

      (4C)    The Minister may decide that subparagraph (4A)(a)(ii) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s conviction, the Minister is satisfied that it would be unreasonable for that subparagraph to apply in relation to the person.

(7)    Clause 28A, page 41 (line 10), omit “(6)”, substitute “(7)”.

(8)    Clause 30, page 43 (line 19), before “has been”, insert “subject to subsection (7),”.

(9)    Clause 30, page 43 (after line 34), at the end of the clause, add:

        (7)    The Minister may decide that subparagraph (5)(a)(ii) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s conviction, the Minister is satisfied that it would be unreasonable for that subparagraph to apply in relation to the person.

There are some tabling notes on the amendments to the bill, which I now table and which summarise the amendments. This might benefit Democrat and Green senators, who also have some amendments to move. The amendments effectively change the wording of the current bill, which would require the minister to refuse a citizenship application from a stateless person born in Australia who has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least five years. The gist of the amendments is that they will now provide for a discretion to refuse—putting a discretion in the hands of the minister, as opposed to a mandated requirement that the minister shall refuse. The amendments recognise that there may be cases where the operation of a mandatory refusal provision would not be reasonable because of the particular circumstances resulting in a person’s conviction. So they create a bit of leeway for the minister to look at the circumstances and some flexibility to take those into account.

I table a supplementary explanatory memorandum and a replacement explanatory memorandum which relate to the government amendments moved to this bill. They go into more detail than I have done.

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

I apologise for not being here at the start of the committee stage. Given how much the government has talked about the crucial importance of citizenship and its central and pivotal nature to the strength of our future nation, I thought the minister might have at least summed up the debate on the second reading stage, so the committee stage started rather earlier than I anticipated. However, the amendment that the minister has spoken about is a sensible one. I appreciate he is here in a representative capacity rather than being the actual minister responsible for citizenship.

It is important to address the matter that the minister raised. My understanding is that this is one of a number of proposals or issues that were identified during the Senate committee inquiry into this legislation. It is a little bit hard to remember, because the Senate committee inquiry was 12 months ago. Despite the ‘pivotal and crucial importance’ of citizenship to the Australian government, it has taken them 12 months to actually bring on the legislation for debate. But as I said in the second reading stage, there are a number of positive measures that were in the original piece of legislation. They were supported by me and, I think, all parties in the Senate committee report 12 months ago, and we were keen to get on with them. There were constructive recommendations in that report about additional measures. This extra bit of flexibility that the minister has indicated is certainly one of those, and it merits support.

Question agreed to.

I move Democrat amendment (1) on sheet 4868:

(1)    Clause 3, page 6 (after line 8), after the definition of foreign law, insert:

good character is a discretionary test which a person does not pass if:

             (a)    the person has a substantial criminal record; or

             (b)    the person has or has had an association with another person, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

             (c)    having regard to either of the following:

                   (i)    the person’s past and present criminal conduct; or

                  (ii)    the person’s past and present general conduct;

                      the person is not of good character; or

             (d)    in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

                   (i)    engage in criminal conduct in Australia; or

                  (ii)    harass, molest, intimidate or stalk another person in Australia; or

                 (iii)    vilify a segment of the Australian community; or

                 (iv)    incite discord in the Australian community or in a segment of that community; or

                  (v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Note:   Substantial criminal record is defined in subsection 501(7) of the Migration Act 1958.

This amendment deals with the definition of good character. The amendment is there before the chamber, so senators can read it. It deals with ‘good character’ being a discretionary test. This area is one of those that I think merit close scrutiny. It is an appropriate one to consider when we are having genuine debates about what citizenship is about rather than some of the populist frippery that occasionally passes for it: what are the circumstances under which somebody will be deemed to be not of good character?

This is an important area, and I am not just referring to the specifics of what is in the amendment before us. We hear from time to time media commentators and talkback radio shock jocks talking about throwing somebody out of the country whenever something unpopular is done. Unfortunately we also hear it from time to time from senior government ministers. Indeed, since we last debated this legislation a couple of weeks ago, in the intervening period between then and now, we had such commentary from as esteemed a figure as the Treasurer, Mr Costello, the Deputy Leader of the Liberal Party and someone who sees himself as a Prime Minister in waiting. He made comments, I think it was on Melbourne radio, saying that even for people with dual citizenship—that is, people who have already had citizenship granted to them—if they acted in a way that he said would be seen as divisive in Australia, there should be the potential to cancel Australian citizenship. If they have another citizenship—by no coincidence at all he used the example of somebody with Egyptian citizenship—we could cancel their Australian citizenship and send them back.

This issue of how tightly we define character is a very important one. It is, I should hasten to add, not a facet of the legislation currently before us—at least, I hope it is not; I do not think it is—that a person, once they have been granted Australian citizenship, can have it cancelled on the grounds of matters such as character or subsequent criminal behaviour. There are very limited grounds under which somebody’s citizenship can be cancelled once it has been granted. But it is important at this stage of the debate around a topic like this that we get it clearly on the record from the government representatives in the chamber that such ideas as those put forward by Mr Costello are not government policy and are not going to become government policy.

If we are genuinely going to have an approach of encouraging this pathway from migration to residency to citizenship—and that is one I strongly support—then people need to know if they take up Australian citizenship whilst remaining a dual citizen of another nation that they are not going to have that Australian citizenship cancelled capriciously for political reasons or because a government decides that they are being divisive. We all know that one of those core Australian values that is about citizenship is the right to freedom of speech, and that includes of course the right to freedom of speech about matters that we might find we disagree very strongly with. I am sure the Egyptian-Australian dual citizen that Mr Costello had in mind is one such person.

It is very important that people who come here and become migrants and citizens know that that is a secure choice, because many of them come from precisely those countries where voicing an unpopular opinion—being accused of being divisive—is enough to get them offside with the government of the time. That is why it is important to have clear definitions. I am going a bit wider than what my amendment specifically relates to because, I might say, since we last debated this legislation Mr Costello has made those comments. He is not just a maverick backbencher. He is a very senior member of this government putting forward a clear-cut proposal that people who become Australian citizens should be able to subsequently have their citizenship cancelled if they are seen to behave in a sufficiently divisive way. That, I suggest, is a very destructive notion to put forward. It would be very constructive for it to be made clear in this debate that it is not government policy and it is not going to become government policy.

It has been, as I understand it, a bipartisan or a multipartisan view in this parliament for some time that dual citizenship is a good thing. Previous amendments to the Citizenship Act prior to this one have specifically encouraged people to retain other citizenships and become Australian as well. Indeed, some of the core amendments contained within the primary legislation before us go further in that regard, to further expand it and to enable people to become Australian citizens without suffering the penalty of losing citizenship of another country.

Those are developments I welcome. I welcome the fact they are being advanced further by the government’s constructive components of this legislation, but we also have this parallel message being put out by the Treasurer, a senior government minister, suggesting that dual citizenship is a risky business because it might mean that, down the track, we have got an out to get rid of you and somewhere else to send you. That is a very destructive notion that runs counter to what I would have thought was government policy. It reinforces why it is important to have clear definitions of character.

Character in this case goes more to granting in the first place, not the cancelling down the track, but it has similar sorts of issues. You cannot have a minister deciding that a person of bad character is someone who says things that we find offensive or that we deem to be against undefined notions, like Australian values. That is why we need to have it more clearly detailed, and that is the intent of this amendment.

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

I want to indicate Labor’s support for the position put by the Democrats. I will not go into great detail; Senator Bartlett has summed up the debate rather well as to why he is arguing for a definition of good character. The definition of good character that is included in Senator Bartlett’s amendment does seem to accord with that which you would think would be included in a statute such as this. Therefore, on that basis, we do think it is a good idea and deserves support.

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

The government read the Senate committee report. It is recommendation 8 that Senator Bartlett’s amendment has picked up. The government believes that the term is sufficiently broad to include any and all of the circumstances which can be taken in isolation or together that need to be considered in assessing whether or not a person is of good character for the purposes of Australian citizenship. It needs to be pointed out that applicants refused on the basis of not being of good character have the right to a merits review of the decision by the AAT.

Question negatived.

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

I move Australian Democrat amendment (2) on sheet 4868:

(2)    Page 12 (after line 31), after clause 10, insert:

10A  Best interests of a child

        (1)    Whenever a decision is taken under this Act in relation to a child, the best interests of the child must be the paramount consideration.

        (2)    For the purposes of this section, best interests of the child include:

             (a)    a child’s right to stability, security and adequate and responsible care; and

             (b)    a child’s own social networks and his or her ongoing ability to maintain such networks; and

             (c)    a child’s school, sporting and other leisure activities; and

             (d)    any other special needs of the child.

This amendment details, as its heading suggests, an insertion to be added to the legislation to detail the best interests of the child and to specifically state that, when a decision is taken under the Citizenship Act in relation to a child, the best interests of the child must be the paramount consideration. That does not mean the only, sole, single consideration; it means the paramount consideration. The best interests of the child include their right to stability, security, adequate and responsible care, a child’s own social networks and his or her ongoing ability to maintain such networks, their school, and sporting or other leisure activities.

I am on record in this chamber, from the many times when I have spoken on immigration issues and citizenship issues, acknowledging that these are difficult areas of law, that you do, from time to time, come up against specific circumstances that present very difficult decisions because they are decisions that affect people’s lives. A decision about whether or not someone has citizenship obviously can relate—and when it is being contended it often does relate—to whether or not they are able to remain in the country, whether or not they have the security of being able to stay in that country.

Obviously a decision around that, in many circumstances, can be a hugely significant decision about the path that person’s life goes down. Often some of the more difficult ones are the ones where children are involved. They are not particularly common, but they do happen. There have certainly been cases in the past where decisions have been made that I believe would be immensely harmful to the child’s long-term interests. As the amendment suggests, some of this can go to stability, security and adequate and responsible care, particularly whether or not they would be in a position to be able to receive the best care. Often it can relate to whether or not they would be torn away from a very secure environment—one where they have lots of networks of support, adequate educational assistance and other sorts of things that are crucial for their development—and moved to somewhere where those things are either absent or far weaker.

I believe that it is of merit to specifically detail that when those sorts of factors come into play the best interests of the child are made paramount. As I said, that does not mean overriding absolutely everything else completely so that nothing else gets taken into account, but it does indicate that the interests of the child do not get pushed below other matters. Too often that happens, particularly when, in some cases, these decisions do have a political atmosphere about them, regardless of which party is in government. In those circumstances it is often quite easy to let the politics of the day dictate something and use that to cull the various factors that are taken into account rather than take into account the things that I believe should be given primacy. The best interests of the child or children is one of those factors. It does not negate other things completely, but it does mean that it should be given the primacy that it deserves.

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

In this instance the matter was not central to the committee recommendations, although it was briefly discussed. The arguments that Senator Bartlett has put forward, although persuasive, are not persuasive enough for us to find favour with them. The Labor Party is not minded to support the amendment that the Australian Democrats propose in the form that they propose it.

I do understand the point that Senator Bartlett has made. I think that decision makers do have to reflect on all the criteria, but in this instance—applying for Australian citizenship—when children are applying in their own right, or when they are included in their parents’ citizenship application, under the existing law they are not required to be a permanent resident or satisfy the usual residency requirements. So there are considerations already taken into account when children apply for Australian citizenship. Of course, in some cases, to meet the residency requirements it is possible to include periods spent outside Australia while the person is on a permanent visa. There are matters that I think have to be further considered when looking at the amendment that you have proposed to see how it also interacts with other rights. In short, without going into great detail, before that matter would find favour we would want more information and perhaps a further look at it through a committee process. But, in the first instance, without having had the opportunity the Labor Party cannot support it.

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

The government will not be supporting the amendment. I think Senator Bartlett’s instincts are absolutely noble, but his recommendations and indeed this amendment are even broader than, for example, the Convention on the Rights of the Child, which requires that, in all actions concerning children, the best interest of the child is a primary consideration. This amendment talks about a ‘paramount’ consideration. It is not an amendment that adds to this act. Its intentions are noble, but I think it is a potentially dangerous change in the context of this act.

Question negatived.

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

by leave—I move Australian Greens amendments (1), (6) and (7) together:

(1)    Clause 17, page 19 (line 21) to page 20 (line 7), omit subclause (4).

(6)    Clause 24, page 34 (lines 5 to 32), omit subclause (4).

(7)    Clause 30, page 43 (lines 6 to 34), omit subclause (4).

I have spoken to these amendments in my second reading speech, which was some time ago now. This legislation gives ASIO the power to veto any citizenship application. These amendments seek to remove the power given to ASIO by this piece of legislation to veto any citizenship application. As I explained in my second reading speech, it is the view of the Greens that the decision about who is granted citizenship should be made by the government of the day. We accept that there is a role for ASIO in this process. We believe that ASIO should continue to do what they do now—that is, they should be able to provide advice to the government in relation to citizenship applications; they should have the capacity to vet applications and make recommendations. But the decision maker should be the government and the minister.

This piece of legislation allows ASIO to tell the government who should become a citizen, but it is the view of the Greens that the government of the day should make the decision on who can or cannot become an Australian citizen. It is perfectly acceptable for ASIO, like any other department, to make recommendations to the government—to say yes in this case or no in that case. That is ASIO’s job, but we do not think it is the role of ASIO, our secret police force, to make the decision on who is granted citizenship. The Greens believe that is a decision the elected government should make. This amendment seeks to return us to the situation that we have today, which is that ASIO can say they think a person should or should not be granted citizenship. That is entirely appropriate. But it is the view of the Greens that the government should be the decision maker.

In my second reading speech I spoke about a number of issues and community groups such as the New South Wales Council for Civil Liberties, which raised this issue in its submission to the inquiry into this bill. They called the bill:

... an unwelcome intrusion of faceless secret agents into the process of defining who is a citizen in our free and democratic society.

They went on to say:

The proposal violates the Statelessness Convention because the Minister will not be able to prevent a person from becoming stateless.

The clause that the Greens are seeking to have removed says that, if ASIO says, ‘Don’t give this person citizenship,’ the minister has no power to say that he will or will not take ASIO’s advice. Under what is proposed in this legislation, if a stateless person is applying for Australian citizenship the minister is required to deny them citizenship because ASIO has told the minister to do so. Whether they have told them the reasons or not, certainly nobody else knows; whether the minister knows or not is unclear to me. The minister has to take ASIO’s recommendation and say, ‘You cannot become a citizen.’ They make people stateless by having to refuse them citizenship. If a stateless person applies to become a citizen of Australia, and the minister is required under the legislation to take ASIO’s recommendation that they not become a citizen, then the minister is making somebody stateless.

This is why the New South Wales Council for Civil Liberties, in its submission to the inquiry into this bill, criticised the legislation for violating the statelessness convention, to which Australia is a signatory. The legislation does that because it does not allow the minister to prevent someone from becoming stateless. The Greens want to give the power to determine who gets citizenship or not to the government of the day, rather than to ASIO, as this piece of legislation seeks to do. The New South Wales Council for Civil Liberties was:

... concerned that, in the current political climate, this proposal will disproportionately impact upon the Muslim community. This could undermine the desirability of Australian citizenship in the eyes of some, rather than fostering a strong multicultural community of citizens—our strongest defence against terrorism.

This is something that I have spoken of many times before, including in relation to this bill. We as a nation should be extremely proud of the fact that people from all around the world want to come and live in Australia. Indeed, many of them take out Australian citizenship. That is a great thing and something that we can all be proud of. The concern that I have raised on behalf of the Greens in relation to this legislation is that it puts more barriers in front of people in doing that, as does the government’s proposal around citizenship tests and English language tests.

Just yesterday I spent time with a number of people who work with newly arrived migrants—many of them are young Sudanese men, some from Darfur, and there was a young Burmese woman. There was a range of people that they work with. They teach an intensive English course supported by the federal government. They try to help them to understand how to engage in the Australian community. When you have a young man in your class and he thinks, ‘It’s hot—I’ll take my clothes off,’ that is something you have to struggle with. They have to say: ‘We don’t do that in Australia. If it is hot, you don’t just take all of your clothes off in the middle of a classroom.’ The young Burmese girl is so bruised from the beatings that she has received but, extraordinarily, she managed to have a child as a result of rape that she experienced in Burma and she is here in Australia trying to learn and understand English. What this piece of legislation and the government’s proposals around citizenship and English language tests do is make it even harder.

You have this young Sudanese boy who may be very comfortable and competent sitting on a hill looking after a herd of goats in Darfur, but he does not know how to cross the road or use a traffic light or what to do in the Australian community. He needs an intensive amount of assistance for that. That needs to be supported. It cannot be provided at the level that is required right now. The government’s proposals are that he also needs to learn English to a point where he is able to do a multiple choice test on a computer. This is a guy who has never learnt a language. He has never been to a school. I am sure he is extraordinarily competent at many things. He is probably a great athlete as well. He has arrived in Australia and this is his new home. He wants to become a citizen. We should be supporting him in that process, not putting steps and barriers in place.

Those are the concerns that the Greens have about not just this bill but also other proposals that the government is putting forward to make it harder for new migrants to be able to become citizens. We do not think that everyone should be given citizenship—by no stretch of the imagination. But we think that the process that exists in Australia allows us to do that. I will get onto that issue later when we talk about how long people should wait before they can make an application for citizenship. The justifications we have heard from the government on this issue are questionable. Given that the government’s argument has been that we need to protect people from terrorism so we need to extend the citizenship waiting period from two years to four years, what are they saying about the system that exists now? I will be interested to hear from the minister on that point.

What the amendments that we are currently dealing with are saying and what the Greens believe is that the government of the day should determine who can become an Australian citizen. That is the system we have now. We think that ASIO has an important role to play in providing advice to the government. But we think that the government, not the secret police force, should determine who is able to be a citizen in Australia. I commend these amendments to the Senate.

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

The government will oppose these amendments. We believe that the ASIO Act needs to be complied with before someone seeking to become a citizen can avail themselves of the provisions of the citizenship laws of this country, including what we hope will be a new law as a product of this debate today. The system as it has been described to me is that, if a person wanting to become a citizen has an adverse assessment by ASIO, they will obviously need to have that dealt with before they can seek to become a citizen. It is effectively saying that the ASIO Act, which is put in place to protect this country, needs to be complied with. Until that is complied with, no application can be considered under this act.

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

Senator Nettle, we do see the principles that you enunciate clearly in terms of the way this has proceeded. It is wrapped up in a broader issue. In part you are arguing, if I understand correctly, that the minister should have a separate decision-making process apart from ASIO. In other words, ASIO would make a decision and the minister would then be able to agree or disagree with that.

That always creates an interesting position. Based on which criteria is the minister exercising a power? ASIO would make an assessment based on the intelligence assessment that is available to them. It might include confidential information. It could include a range of information from various sources that has been drawn together by ASIO and related agencies. ASIO, as our national intelligence organisation, would then make that assessment. The minister would then, in the normal course of events, rely on that assessment in making the determination. That is the way that I would see it operating.

It has operated in the past in that same way for a range of decisions by ministers. Decisions are based on assessments by, in this instance, ASIO. Departing from that I think would be fraught with some concern. What you then have to do is step the minister into the position of ASIO. You then have to say that the minister should assess the primary documents, the primary sources and all of the other evidence that might be garnered by ASIO in order to be in a position to make a determination—that is, if I understand the question correctly from the way that you have framed your amendment.

On that basis I could not see why we would support such a position. Effectively, you then would not be exercising a ministerial decision based on an ASIO report; you would have to make the primary decision yourself, as the minister. Why then would you have ASIO make the security assessment in the first place? I guess you would then have to have the minister or his delegates go and search out all of the relevant information to make a decision.

The usual course of events is that the minister does have to rely on security assessments. There is nothing to suggest that ASIO would not be making the appropriate security assessment in any event. Even in matters where ASIO do make security assessments, they are challengeable. If I remember correctly, that was challenged in the Scott Parkin matter and there was a judicial determination in that area. I know it is separate from it, but the primary area is that we are not minded to support the proposed amendment. We do see the points that you raise. We have read the committee report about this issue as well. It seems to suggest that there are differing legal views about this area as well and the matter remains unsettled. Although the proposed amendment does raise a matter regarding stateless people, we are not able to support it in total because of the way it is drafted.

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

I thought it was worth making clear what the proposed amendment actually does. Whilst I am very happy for Senator Ludwig to make comments on my discussion here in the chamber, the amendment proposes to omit the clauses that the government is proposing to put into this legislation that give ASIO the power to veto somebody’s citizenship. So rather than our setting up a new system, which is perhaps what Senator Ludwig thought that I was proposing, the amendment actually removes the government’s proposal in this legislation to give ASIO the veto power. What we are proposing is that we operate under the system by which decisions are currently made, with advice from ASIO, but we are not supportive of giving ASIO the power to veto every individual citizenship application.

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

Senator Ludwig interjecting—

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

It does.

Question negatived.

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

by leave—I move Australian Democrat amendments (3), (8) and (9) on sheet 4868:

(3)    Clause 17, page 19 (after line 28), after subclause (4), insert:

  (4AA)    Subsection (4) does not operate so as to refuse the application of a stateless person unless the person has been convicted of a national security offence.

(8)    Clause 24, page 34 (after line 12), after subclause (4), insert:

  (4AA)    Subsection (4) does not operate so as to refuse the application of a stateless person unless the person has been convicted of a national security offence.

(9)    Clause 30, page 43 (after line 13), after subclause (4), insert:

     (4A)    Subsection (4) does not operate so as to refuse the application of a stateless person unless the person has been convicted of a national security offence.

These proposed amendments relate to the treatment of a stateless person and basically go to trying to increase the protection of such people from being put in a circumstance where they are at risk of being removed from Australia and in a position of statelessness globally. It was an area that was examined during the Senate committee inquiry and it is one where I believe there are not adequate protections.

The first amendment goes to adverse security assessments. We have just been talking about that to some extent—where a person cannot be approved to become a citizen at a time when an adverse security assessment is in place. I should point out that adverse security assessments do not automatically mean a person is a sure-fire terrorist or something like that. The relevant provision in the bill before us says at clause 17(4) that that adverse security assessment relates to whether somebody is directly or indirectly a risk to security. An indirect risk to security can be a lot wider and a lot looser than people may suggest.

The current wording in the legislation at clause 17(4) says that ‘the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment ... is in force’. The Democrat amendment suggests that that should not operate so as to refuse the application of a stateless person unless they have been convicted of a national security offence. It is basically an exemption if it is applying to a stateless person. Again, at least as I would read it, it does not mean that the minister would be forced to give that person citizenship but it does mean that it would give them some leeway rather than as currently applies under subclause (4), where the minister simply cannot approve that person becoming an Australian citizen if they are subject to an adverse security assessment.

It should also be emphasised that my understanding of things currently under the Migration Act is that if people are subject to an adverse security assessment and they are outside the country, they cannot get in in the first place. So this would be an assessment that would apply to people who are already resident in Australia and do not have citizenship of any other country. That would apply to a fairly small number of people. But, as I said earlier, there are those rare occasions that throw up fairly difficult decisions. In the case of stateless people, there are people that, by definition, at least in some respects, are in quite a vulnerable circumstance. We believe that the stronger test of refusing an application if they are convicted of a national security offence is a better one for stateless people in those rare circumstances than the current one where an adverse security assessment is in place.

It does, to some extent, touch on the previous amendment moved by Senator Nettle. For the record, I should note that the Democrats were supportive of that amendment. We saw this not in relation to a citizenship matter but in relation to a migration matter—not just with the Scott Parkin circumstance but also and perhaps even more unforgivably in regard to the two Iraqi refugees who were marooned on Nauru for years as a consequence of an adverse security assessment. Because they were outside the country, they were in an even worse circumstance where they were not able to have any sort of judicial review.

As Senator Ludwig rightly said, in circumstances where people are in the country there is a limited scope of judicial review, although I should note with the Scott Parkin case there has been fairly strong resistance by ASIO and by the federal government themselves about the scope and nature of what is being able to be reviewed. I understand that matter is still being determined and assessed by the courts so I will not go into it further, but it is not a particularly comprehensive and thorough form of review that is available to people, or at least may well turn out to be the case.

I think the very small number of vulnerable people who are in a stateless circumstance should not have the security of a citizenship application refused automatically just because of the adverse security assessment. As I said, that does not mean in itself that they are a serious risk to the community. An indirect risk to security can mean a lot of things, as we saw of course with one of those two refugees who were stuck on Nauru. A couple of years later that person, after having been brought to Australia because of serious health concerns, then had another ASIO review and, for reasons that I suspect nobody will ever know, was suddenly found not to present an adverse security risk to Australia. Quite what could have changed for that person when all they did in the intervening year or two was to stay stuck on Nauru, how they could over that period of time have ceased to be a security risk, we will probably never know. Attempts to try and question ASIO about this in Senate committee hearings met with the not unexpected stonewall that they were not able to comment on national security matters. It is all well and good for us to note this circular catch-22 situation of being unable to get information about security matters because it is a security matter. But when you are the person stuck with that adverse assessment, and the consequence is a lifetime of insecurity and uncertainty and of being in limbo, then it is not just a curious logical conundrum, it is a very serious circumstance. That is why we believe these amendments are desirable.

It should be re-emphasised that what we are putting in place here is a whole new citizenship act. The bill before us updates, modernises and improves, by and large, the existing Citizenship Act and replaces it—and if there is ever a time to make sure we get it right it is at the beginning, when we are putting it in place. I believe this is one area where, whilst it will only affect a small number of people, an improvement can be made. It is an important improvement for ensuring better rights for people who are vulnerable, for stateless people who may otherwise be left in limbo due to what is, in effect, a completely unchallengeable and unknowable security risk assessment from ASIO.

Annette Hurley (SA, Australian Labor Party) Share this | Link to this | Hansard source

As Senator Bartlett quite rightly just pointed out, the bulk of the bill we are considering is very good and puts our Australian Citizenship Act on a very good footing; it is just that there are some lingering concerns about particular aspects of it. Indeed, during the committee hearings the Human Rights and Equal Opportunity Commission made the point that they had not been consulted, I believe, prior to the bill being drafted. That surprised me a great deal. They were particularly concerned about the issue of statelessness. Senator Bartlett has quite rightly pointed out some of the difficulties that may arise under this bill.

I would like to hark back to other difficulties that I pointed out during my speech in the second reading debate in relation to people who, through renunciation, lost their citizenship under section 18 of the old bill. While I am on my feet I might also go through a few questions that I have about how the bill, when it is enacted and becomes law, will be dealt with. During the additional estimates we heard stories of a Maltese person who lost their Australian citizenship not under section 18, as most Maltese people do, but under section 17. This is quite a complicated bill and that particular section makes it very complicated, as do issues like statelessness and so on. I am wondering whether increased resources will be made available to the department, particularly in those key overseas locations where a lot of people will apply for or inquire about resumption of citizenship—Malta being one and the United States and Papua New Guinea being others—and what protocols will be in place. For example, will elderly people such as the United States war brides, who are in their 80s or even 90s, be treated as a priority and assisted through the process?

I think it may also assist the process of people assessing whether they themselves or members of their family are eligible under the new citizenship rules if the Australian citizenship instructions, which I understand are currently only available to migration agents, are made more widely available. I understand, of course, that they have to be rewritten to take into account the new rules, but I think it would assist the process greatly if they could be more generally available to the public. There is also the question for people who are already here in Australia under working visas or other arrangements of what arrangements will be made for them to be advised of whether they might be able to take up Australian citizenship or resume their Australian citizenship if they are eligible and how that will come about. I raise these issues at this point hoping that the minister might have some response to them later in the piece.

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

If the minister believes we need increased resources at those posts, I am sure that he will seek them through the normal budget process. It is what we would expect him to do, if that is the case.

In response to the amendment moved by Senator Bartlett, I just make the point that the government accepted the Senate committee amendment that he refers to—committee recommendation No. 10—and it included in the bill, by way of an amendment in the House of Representatives on November 28 last year, to install a new section 4A. That says:

If the person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.

Effectively, this achieves the aim sought by Senator Bartlett’s amendment—and I will not quote that because it is in front of all senators. But, in longhand, I am saying that the policy intent sought by Senator Bartlett has been achieved by the government amendment and, therefore, the bill before us requires no further amendment; otherwise, effectively, you would have a clause 4A, which would say exactly the same as Senator Bartlett’s new clause 4AA.

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

That, in fact, was one of the questions I was going to ask of Senator Bartlett: in terms of the current position that the government seems to have moved to, does your amendment go to that or to some additional required matter that you have seized on, which is within the committee recommendations? The committee made a range of recommendations, but particularly in respect of stateless persons—and invariably I am looking at the report of the Legal and Constitutional Legislation Committee at 3.50, which deals with stateless people. The committee’s view was highlighted at 3.58, which states:

The Committee notes that the proposed Bill does change the law in two important ways. Further, while the Committee appreciates that legal opinion may differ, there is a legitimate question as to whether proposed paragraph 21(8)(c)—

and I will not go into the detail there—

is sufficient to meet the objectives of the Convention. Australia may have adopted an unduly restrictive interpretation of its obligations in this regard.

But recommendations 10 and 11 go to those issues, in addition to recommendations having been made more generally. I do not know whether that, in fact, answers the amendment that you suggest. On the basis that, as I understand it, we have come to the position where the government has now conceded there were issues surrounding the original drafting of the bill dealing with this matter, Labor is not in a position to support your amendment without more being put. We do see that the government has moved to address the issue to ensure that, as far as was raised by the Legal and Constitutional Legislation Committee, it is remedied. If that is not the case, Senator Bartlett, I would like to hear more.

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

My understanding is that the amendment further reinforced the principle in place. It may be, as the minister says, that it is unnecessary because of the amendments made in the House of Representatives. It should be noted that the bill before the chambers is not the same bill that was before the Senate committee, because it was subsequently amended many months later by the House of Representatives, which included changes being made in response to the Senate committee report and one key change in particular regarding the period of residency requirement, which was not flagged at all when the Senate committee considered the legislation a year ago. However, in any case, my understanding is that the Democrat amendments here just reinforce the principle sought to be applied from the issues that were brought up in the Senate committee hearings.

From time to time I hear government ministers say, ‘All these amendments aren’t necessary because they are already covered,’ which in my view usually means that it does not hurt if they are passed. But I am quite happy to accept the minister’s assurance regarding the effect of the amendments that have already been made in the House of Representatives.

Question negatived.

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

We have already dealt with the government amendments, by leave, in total. I now seek leave to move amendments (1) to (8) and (11) on sheet 5172 together.

Leave granted.

I move:

(1)    Clause 19D, page 24 (line 6), omit “or a foreign law,”.

(2)    Clause 19D, page 24 (after line 10), after subclause (6), insert:

     (6A)    If the person is covered by subparagraph (7)(b)(i), and the person has been convicted of an offence against a foreign law for which the person has been sentenced to a period of imprisonment of at least 5 years, the Minister may grant the person citizenship.

      (6B)    If the Minister makes a decision under subsection (6A), the Minister must cause notice of the making of the decision and the reasons for the decision to be laid before each House of Parliament within 15 sitting days after the day on which the decision was made.

(3)    Clause 21, page 28 (line 32), after “17”, insert “or 18”.

(4)    Clause 22, page 30 (line 4), omit “4”, substitute “3”.

(5)    Clause 22, page 30 (line 8), omit “4”, substitute “3”.

(6)    Clause 22, page 30 (line 15), omit “4”, substitute “3”.

(7)    Clause 22, page 31 (line 3), omit “4”, substitute “3”.

(8)    Clause 24, page 34 (line 18), omit “or a foreign law,”.

(11)  Clause 30, page 43 (after line 24), after subclause (5), insert:

     (5A)    If the person is covered by subparagraph (6)(b)(i), and the person has been convicted of an offence against a foreign law for which the person has been sentenced to a period of imprisonment of at least 5 years, the Minister may grant the person citizenship.

  (5AB)    If the Minister makes a decision under subsection (5A), the Minister must cause notice of the making of the decision and the reasons for the decision to be laid before each House of Parliament within 15 sitting days after the day on which the decision was made.

These amendments are relatively self-explanatory, unless there is a great need to go into the detail of any one specifically. Half the difficulty here, of course, is that this is truncated from the original second reading debate we had. However, at that time I did foreshadow the amendments that Labor would be moving. They relate to the policies that this bill was to introduce. One was to render certain types of stateless persons ineligible for citizenship if they were convicted of an offence under a foreign law for which the sentence is five years imprisonment or more; the minister in such a case had to refuse citizenship.

There is in that instance a problem in the government allowing another country to determine our citizenship—it is a matter I raised during the second reading debate where I gave a range of examples. I will not go to those again but it would seem clear that in circumstances where other countries are used to determine the decision of the minister it is appalling and should not be countenanced in any way. It could get to a situation where countries that do not have our view of the world would be determining outcomes. It would be improper and wrong, under the government’s proposal, that somebody of the stature of a person such as Mahatma Gandhi would be refused citizenship to Australia if this were applicable. Yes, a conviction under a foreign law should definitely raise alarm bells. There is no argument about that. It should be a matter that the government should consider, but it should not determine our citizenship. That is where we fall out with the government’s view.

I take up what Senator Hurley said earlier—that this bill introduces many good measures. While the committee stage will focus on amendments to the bill, it is not the central thrust of the bill. The central thrust is to rewrite the citizenship legislation in such a way that it provides a significant improvement and that it has by and large cross-party and minor party support.

This is the time for debate on the particulars. We are seeking to ensure in this particular instance that other countries do not determine our citizenship laws. That would be wrong. The government should not outsource our citizenship to other regimes which do not have views similar to ours. The government did introduce an amendment to add a test of reasonableness, which Labor had been calling for. We are glad that the government paid attention to Labor’s concerns, but it was only after much argument. In this instance, we think our amendments should be supported and we commend them to the Senate.

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

I thank Senator Ludwig for picking up the fact that the government has indeed amended the bill in a way we believe makes this new amendment unnecessary. It is an example of the government engaging in a constructive legislative process. The government amendment does not differentiate between Australian and foreign law and is consistent with our obligations under the Convention on the Reduction of Statelessness. The mandatory provision to refuse an application need not apply ‘if taking into account the circumstances that result in the person’s conviction the minister is satisfied that it would be unreasonable for that provision to apply in relation to that person’—the reasonableness test to which the senator was referring. That is an amendment which the government has made. We believe it addresses the concerns of Senator Ludwig and the opposition, therefore rendering this amendment unnecessary. It is also important to note that there is a right of review of any of the decisions to refuse to exercise the discretion included in the government’s amendment. It instils an amount of fairness, which the opposition is seeking. We believe the amendment moved is no longer necessary.

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

After hearing that, I acknowledge that you have moved some way, and I think I said that, but not far enough. Although you might consider you have met the obligation in meeting our concerns, we think it goes to a further point that you have not picked up. On that basis we still prefer our amendment over yours, particularly in relation to the notice of and the reasons for decision to be laid before each house of parliament within 15 sitting days. Matters such as that are not unusual for this government to deal with. On that basis, it is worth acknowledging that the government has moved. I would not want to omit that from my contribution today, but it certainly has not moved far enough. We still prefer our amendment.

Question negatived.

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

Democrat amendment (4) goes to paragraphs (e) and (f) of the general eligibility for applying for citizenship. Before formally moving it, I might ask a couple of questions in regard to this. Basically we put it down as a protective amendment prior to Senate estimates—uncertain of how the government’s new citizenship test announced at the end of last year under the former parliamentary secretary, Mr Robb, would be implemented. It was made clear at Senate estimates that to implement this new test will require legislative change which, from the timetable put forward in estimates by the government or by the department, was to be put before the parliament this year some time prior to the election. I want to clarify in that case how, in the interim, the government or the department will be planning to assess these parts of the general eligibility requirements under the new Australian Citizenship Act, which is before us today. The parts that my foreshadowed amendment go to detail an eligibility requirement for a person to become an Australian citizen if the minister is satisfied that the person:

(e) possesses a basic knowledge of the English language at the time of the Minister’s decision on the application; and (f) has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of the Minister’s decision on the application.

I know we already have in place the basic English language test and that this could be seen as just a continuation of that but, given the change in the government’s policy to implement a specific test regarding knowledge of Australia, Australian society and perhaps the ubiquitous Australian values, I wanted to get an indication of whether there will be any change in the way these parts of the eligibility requirements will be assessed between now and when the legislative changes that have been foreshadowed in Senate estimates come into being.

I understand, again from what was said at Senate estimates, that there will not be a separate English language test under the new regime the government is proposing—that the test of someone’s basic knowledge will be part and parcel of the computer based multiple choice test of knowledge of Australia that is still being developed. As I understand it—and I am happy to be corrected on any of the things I am saying here when the minister responds—that is different from how things are now, which is that the level of basic knowledge is assessed via the general standard interview that is done with the department and delegate of the minister.

I really want to ascertain whether these provisions in the new bill, parts (e) and (f), will be implemented differently in any way from what has applied to date, or whether it will just be business as usual up until any further legislative changes are brought in to implement a change in policy in regard to eligibility testing for acquiring Australian citizenship.

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

The last comment that Senator Bartlett made was correct; it will be business as usual until there is an announcement or until the new legislation comes in.

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

I have a question at this stage of Senator Bartlett: does the amendment that you are moving take out the current citizenship test that we have? It seems to suggest that. If it does, then what does it replace it with? I understand that there are some concerns about what the government might be intending to do; however, that is currently not before us. The current test requires that a person:

(e) possesses a basic knowledge of the English language at the time of the Minister’s decision on the application; and

(f) has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of the Minister’s decision on the application.

And it goes on. If Senator Bartlett is seeking to take out that current test then Labor would have some concerns and, as a consequence, would not support the amendment. How we deal with what the government does in the future is a matter for when we see the legislation, and the shadow minister responsible will obviously have something to say at that point. Already, I think the relevant shadow minister has spoken about this particular area but I do not want to get that confused with this debate. The debate we are having now is about Senator Bartlett’s amendment vis-a-vis the current test in the legislation. I was wondering if Senator Bartlett could clarify that position and let me know whether I am right about that.

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

As I said in my comments, I foreshadowed the amendment rather than formally moved it because I wanted to clarify the situation with the minister, which I was able to do to some extent in the estimates committee process. That was before this committee stage of the debate. I had a concern that the changes that the government announced on their new tests would be done administratively under this component of the bill here, but it has been made clear that that is not going to happen and that there will be a new legislative framework put forward for this new test. That being the case, I will not proceed with that foreshadowed amendment. I will let that one sit and we can look at the actual legislation dealing with citizenship when it does come in at some stage down the track. I will take the opportunity before we hit the suspension at two o’clock for question time to get one final response from the minister as to whether there is any rough timetable he can give for when the legislation dealing with the new test might be introduced or when we could see an exposure draft.

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

As I said, that will be a matter for announcement by the minister responsible. As I recall from the estimates committee process, the senator was given very thorough answers to questions about what the government has in mind and where we are at with the process. Apart from that, we are opposed to the amendment because it quite clearly on the face of it removes the provision in the bill that refers to a knowledge of the English language. That is something that has been part of the citizenship process in Australia for some time and I think it would be very silly—and I think most Australians would regard it as silly—to remove it from the law.

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

Senator Bartlett, have you formally moved the amendment?

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

No.

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

I understand that he has not, so I will not talk to it any further. I understand the point that he makes and I understand what he would like to get the government to do. We would all like to get the government to do that but, unfortunately, I suspect that that is not a matter for the minister before us; it is a matter for the minister dealing with citizenship to bring that forward. It would be helpful if they could comply; however, that is a matter for the minister of the day to determine.

On the broader issue, I have noted Senator Bartlett’s position of being able to pursue both in Senate estimates and here an issue that you seek greater information on and I concur with that. It would be helpful if the minister did make it plain what the current position is. In any event, without the amendment having been moved, I indicate that Labor does not support the amendment that Senator Bartlett foreshadowed and, until he does move it, we will not need to formalise our position on it.

Progress reported.