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

I seek to table a supplementary explanatory memorandum and a revised explanatory memorandum relating to government amendments to be moved to this bill, as circulated in the chamber.

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

Can I make a couple of comments in relation to what the minister has just said, particularly in terms of process. The matter was referred by the Senate to the Legal and Constitutional Affairs Committee. The committee had the benefit of a day of inquiry, which was very useful, and I think we can say it has collectively led to reconsideration of concerns that we, from a coalition perspective, put in our dissenting report, and I think the Greens have raised, not only in relation to the matters we raised in our dissenting report but also in other provisions, which are going to be the subject of certain amendments they are going to put concerning torture and trauma.

It was disappointing that when the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 and amendments were put before the Senate we did not have the opportunity to consider these matters in the appropriate committee forum. The committee became aware of these changes by correspondence to our chair after we had concluded our deliberations at the hearing. These are not insignificant amendments. In particular they affect residency requirements regrettably and I will come in a moment to the way this matter was reported in the press. Given the nature and scope of the proposed amendments that initially referred to athletes and subsequently have become a broader category of people, and also in relation to people who have spent periods overseas, offshore workers, I think they and interested organisations should have been afforded some opportunity to come before the Senate committee to express their opinion. There could have been a proper examination and scrutiny and the committee may have heard evidence from them. Perhaps it would have been the appropriate time to have done that. Regrettably those of us on the committee read about it in the press with headlines such as, ‘Athletes get easier run to citizenship,’ and ‘Minister melts to give skater citizenship.’ I had this view of the minister potentially putting on a pair of skates in a press announcement!

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

Senator Chris Evans interjecting—

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

I did think about that, Minister, and I wondered whether as part of the photo shoot you were going to don a pair of skates and pirouette on the ice—

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

Senator Chris Evans interjecting—

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

Perhaps that would not have been a pleasant view, Minister. To some extent this has resulted in concerns and criticisms, certainly when you look at some of the letters to the editor and at some of the reactions that have had occasion to categorising this as ‘citizenship for medals’ and a push to fast-track athletes simply so that they can go and compete in events overseas. Indeed, Minister, when we do go to the committee stage with those amendments, it will still be of concern, because, even though the amendments that have been circulated refer to activities of people, nevertheless the schedules have a very sporting focus. As I understand it, the schedules will basically have two sporting committees. In effect, we have had some changes but those changes have been couched in more neutral language. The real effect of the amendments that the government is proposing will be to fast-track athletes so that they can compete in events and ultimately go on to win medals. That, unfortunately, has coloured to the debate somewhat.

In general terms, and I will discuss this in more detail in the committee, I say that we are pleased that the government did take into account the concerns that were raised by coalition senators in our dissenting report—in particular about the removal of the requirement for ‘permanent’ physical or mental incapacity and the removal of the word ‘permanent’ and the potential effect this could have. At the hearing, the evidence that was given was very helpful because it helped identify, certainly for coalition senators and other senators who sat at the hearing, some of the unintended consequences of simply confining the exception to a particular class and category of people who had suffered torture and trauma. Confining that category had consequential effects on other people. Senator Hanson-Young gave the example of women who get trafficked and then, as a consequence, suffer trauma. It is important that we look at this in the broader category of incapacity, so that that broader category of incapacity, albeit defined and restricted to permanency, whether it be long-term or enduring as the Greens have suggested. Nevertheless, permanency is still the important parameter, so that we do not have unintended circumstances where we open this up to a broad range of people.

We will be circulating an amendment which picks up our concerns in relation to permanent and long-term physical and mental incapacity and the consequential amendments. As we note, the amendments that we and the Greens are proposing look at exemptions for sitting the citizenship test. Consequential on that, the Citizenship Act also contains an exemption for permanent and physical incapacity in relation to the pledge. So, as a consequence of one change, there is also the other change that will need to be looked at in terms of the pledge and the consequential amendments to that.

In the minutes remaining to me, I want to put on record and reiterate the comments we made in the dissenting report. We believe that the citizenship test has been a very successful test. In fact, one only has to look at the pass rates and at the Australian citizenship test snapshot report of July 2009 to see just how successful it has been. We have had pass rates of about 97 per cent overall. Even if you break that down, in other streams such as the family stream, the pass rate is about 95 per cent. Even in the humanitarian stream, pass rates are approximately 84 per cent.

In this bill we are really only looking at two of the recommendations of the Citizenship Test Review Committee required legislative changes. But, from the coalition’s perspective, I put on the record our concerns that there is a whole raft of other changes that the government is making to citizenship which do not require legislative changes. They do nevertheless, and this is our concern, change the nature of the citizenship test requirement. We are pleased that the government is retaining the test in the English language and that there will not be any changes to that.

Citizenship is important and we do encourage citizenship. The test was set up not only to encourage citizenship but to promote citizenship as the single most unifying force in our community. Therefore, it is very important that the changes do not lose the focus of the core values and beliefs that underpin our Australian way of life. Our history and our culture are important components of new citizens understanding the Australian way of life. From the coalition’s perspective, we have always seen the citizenship test as an important values document and we believe that new Australians should fully understand and embrace not only the rights but also the responsibilities that being an Australian citizen brings. Therefore, we are particularly concerned that there will be a removal of mandatory questioning. Whilst this is not part of the bill, I do want to take the opportunity to say that we have expressed our concerns about the government’s plan to abolish mandatory questioning which covers the rights and responsibilities of Australian citizens. Again, I put on the record our concern that, instead of questioning as to a range of matters including obligations, responsibilities, history, values and the Australian way of life, the government is replacing the highly successful system with a limited test focused only on the pledge of commitment, which is of course very much confined to five lines pledging loyalty, sharing democratic beliefs, respecting rights and liberties, and upholding the law and obeying the law. You can choose to do this whether you use the words ‘under God’ or not. Our concern is that the test has been watered down. There are no mandatory questions which will require applicants to understand rights and responsibilities and we are very much concerned that this has simply been the result of an ideological attack.

We do know, and we recognise, that on the other side there are people who do not believe that we should have a citizenship test. In fact, if I recall correctly, in 2007 the member for Banks, Daryl Melham, described the test as a disgrace. Indeed in Senate estimates on 28 May another Labor senator actually questioned the need for the test. Therefore, it is our concern—and in this debate I want to put on record this concern—that we are currently seeing what is potentially a watering down. We are seeing these changes to the citizenship test, which do not require legislative provisions to give force to them, as being in effect a watering down of the citizenship test. I think it is appropriate at this point to put these matters on the record before we embark on a discussion on amendments.

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

Could I check, and perhaps Senator Fierravanti-Wells could confirm this for me for the purposes of clarity, that the opposition will only be moving that one amendment relating to the physical and mental incapacity exemption?

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

Minister, we will be suggesting alternative sections 22A, 22B and 22C. I will be putting that regime of 22A, 22B and 22C, and those amendments are currently being prepared and, hopefully, will be shortly distributed in the chamber. Minister, might I suggest, so that we can move this along: what if we deal with the amendments that look at the humanitarian and the refugee exception? I think they are the Greens amendments. I would be happy to look at those Greens amendments and deal with those upfront. If that would be acceptable, Minister, I think we should do that subject to what Senator Hanson-Young may wish to proceed with.

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

Based on the running sheet, I think the two amendments that the opposition senator referred to actually have been noted ‘not to be moved’ so it is the other two amendments that I would like to move on behalf of the Greens. They relate to our amendment, which I believe was circulated last night, in relation to permanent or enduring physical and mental incapacity and then also our concerns around the eligibility for minors.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Hanson-Young, are you formally moving the amendments?

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

by leave—yes, I formally move the amendments in relation to schedule 1, items 1, 3, 4, 7 and 9. So I move Australian Greens amendments (1) to (4) on sheet 5927:

(1)    Schedule 1, item 1, page 3 (lines 4 and 5), omit the item, substitute:

1  Section 19G

Omit “permanent”, substitute “permanent or enduring”.

(2)    Schedule 1, items 3 and 4, page 3 (line 21) to page 4 (line 11), omit the items, substitute:

3  Paragraph 21(3)(d)

Repeal the paragraph, substitute:

             (d)    has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

                   (i)    is not capable of understanding the nature of the application at that time; or

                  (ii)    is not capable of demonstrating a basic knowledge of the English language at that time; or

                 (iii)    is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and

Note:                The heading to subsection 21(3) is altered by omitting “Permanent” and substituting “Permanent or enduring” [physical and mental incapacity].

(3)    Schedule 1, item 7, page 4 (line 28) to page 5 (line 8), omit the item, substitute:

7  Paragraph 26(1)(b)

Repeal the paragraph, substitute:

             (b)    has a permanent or enduring physical or mental incapacity, at the time the person made the application to become an Australian citizen, that means the person:

                   (i)    is not capable of understanding the nature of the application at that time; or

                  (ii)    is not capable of demonstrating a basic knowledge of the English language at that time; or

                 (iii)    is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; or

(4)    Schedule 1, item 9, page 5 (line 17), omit “4,”.

As have already outlined in additional comments to the committee looking into this bill and in what I have said today, while the Greens believe that the torture and trauma exemption is a good idea and admirable, we agree with evidence that was presented to the committee that, while trying to be inclusive, it actually ends up being too exclusive of people who need that exemption. The way in which we could best achieve getting around this particular problem is by adopting the recommendation, put forward by the Australian Citizenship Test Review Committee, for the suggested words to remain broad but also not be too prescriptive and to ensure that it does capture those people who have suffered torture and trauma whether that has been inside Australia or outside Australia, which, as I mentioned numerous times in the second reading debate, was a particular concern. The fact is a number of people who come in under the humanitarian program have not necessarily suffered torture and trauma in the legal sense of the words, but they have suffered from some disability or incapacity. Under the current draft of the legislation, they would not be included under these exemptions. This is why we have come up with this amendment. It is the amendment that was recommended by the Australian Citizenship Test Review Committee and it has now been referenced by both the government and the opposition.

I would also like to clarify the point in the amendment around permanent incapacity. The Greens agree with the way this term is currently used within the Australian Citizenship Act. We understand that it is too prescriptive for some applicants who have suffered some sort of incapacity but may not be permanent in the forever sense of the word. While the amendment would retain the term ‘permanent’, we would be including the term ‘enduring’ as the alternative criteria for the applicant to meet. The reason we have chosen enduring rather than long term is simply based on advice that this is the more appropriate wording in this case. That is what we would like to see the committee adopt. My understanding is that Senator Xenophon is supporting that amendment, and I guess we will hear from the government about it. I would like to see the opposition support it. I understand they have circulated an amendment that is almost word for word, except for the term ‘long term’. As I said, the term ‘enduring’ was given to us on the basis that in dealing with medical issues, this is the more legalistic term that is appropriate.

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

I just want to follow on from what Senator Hanson-Young said. Listed in the circulated amendments is an amendment from the opposition, which, as Senator Hanson-Young correctly points out, is almost word for word the same as the Greens’ amendment. The difference between the two amendments is that our suggested amendment picked up on the suggestion of the Australian Citizenship Test Review Committee, and perhaps at this point I might take the opportunity to put this into context.

The Australian Citizenship Test Review Committee suggested a much simpler amendment. In fact, in their chapter 8 they actually discussed this question in relation to torture and trauma in detail. Their suggested amendment was that section 21(d) be amended to read that the person has a:

… physical or mental incapacity at that time means the person is not capable due to the permanent physical or mental incapacity of:

Understanding the nature of the application at that time; or

Demonstrating a basic knowledge of the English language at that time; or

Demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

These are the three criteria attached to the citizenship test.

According to the committee, section 23A sets out the process for a citizenship test. It stated in the note, as I have said:

… the test must be related to the eligibility criteria referred to in paragraphs 21(2)(d) understanding of the nature of the application, (e) a basic knowledge of the English language and (f) an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

The committee:

… argued that ‘mental incapacity’ ought not to be confined to just understanding the nature of the application at that time, but ought to refer to all three criteria, all of which are relevant to citizenship testing.

Of course one could think of circumstances where clearly if one does not understand the nature of the application, it is not unreasonable to think that one does not have a basic knowledge of the English language at that time and may not necessarily demonstrate an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship at that time.

The methodology suggested by the review committee was simpler and non-discriminatory. Coalition senators in the dissenting report suggested:

… the Review Committee’s proposed amendment be adopted with the addition of the word ‘permanent’.

Accordingly we suggested that the proposed provisions in the bill, which are set out at sections 21(3A) and 21(3B) of the bill, be removed and substituted with a much simpler—basically section 21(d). This removes—and this is the point that Senator Hanson-Young was making—the proposed amendments of the government (3A) and (3B), which went to saying that a person had a physical or mental incapacity at the time the person made the application as a result of that person having suffered torture or trauma outside Australia. Of course, that consequently means that that person is not capable of understanding the nature of the application, not capable of demonstrating a basic knowledge of English and not capable of demonstrating an adequate knowledge of Australia and responsibilities and privileges of citizenship.

There was also a concern that the removal of ‘permanent’ from the definition would lead to confusion about eligibility and definitions about permanent and temporary incapacity. At that stage we did not have numbers in relation to how many people would be in this category, and regrettably the department was unable to assist us with that information at the time. They subsequently did provide us with that information, and I will come to that in a moment.

The concern was that if the criterion of temporary incapacity was left in there, it could potentially open up to a much broader category of people. Concerns were expressed at the hearing that this exemption could be used by some to bypass the requirement to have adequate English and knowledge of Australian values, and in particular limit the opportunity for women to learn English. This was a point that was canvassed by quite a number of witnesses at the hearing, in particular in relation to women with backgrounds that are much more closed and that perhaps the facility to learn English and the fact that they have to sit a citizenship test may be, for some, the opportunity—and a limited opportunity—for them to go out and learn English. We did look at the potential need to get assistance in relation to the test as well, and perhaps we might look at that a little bit later.

As a consequence, the opposition has circulated this amendment. From our perspective, our concern primarily is the retention of the word ‘permanent’. The importance becomes apparent when you look at the figures in relation to conferral of citizenship in this area. The department advised us that, for the period 1 October 2007 to 30 June 2009, 366 people applied under the permanent physical or mental capacity provisions of section 21(3). Of these, 189 had citizenship conferred. When you look at that in the broader picture, it is a limited number.

The object of retaining permanency was simply for it to be just that—that there be a permanent physical or mental incapacity. So, for us, the important criterion was the retention of permanency and the government’s temporary criteria did cause us concern. I take the point that, whether it is ‘long term’ or ‘enduring’, neither of those two descriptors are temporary in nature and they certainly do achieve the objective of demonstrating a longer term period. On that basis, we will be happy to support the amendment of the Greens and not pursue our amendment, which is in the same terms but which, rather than ‘permanent or enduring,’ refers to ‘permanent or long-term physical or mental incapacity’ at the time that the person makes the application, leaving them incapable due to that permanent or enduring physical or mental capacity of understanding. Senator Hanson-Young, perhaps you can clarify whether your amendment refers to permanent or enduring in both parts of part D.

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

Yes, it does.

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

Could I just say at the outset that, if the opposition are not ready to go with their amendments, we might just adjourn rather than force Senator Fierravanti-Wells to speak at great length when we are in thunderous agreement. I think I have indicated that we are supporting the amendment, and the opposition have indicated they are supporting the amendment, for the reasons outlined by Senator Hanson-Young in moving it. I think the opposition had already adopted that position with their proposed amendment. As I say: if the opposition need time to finalise their amendments, I would rather we adjourn than see Senator Fierravanti-Wells have to talk under water while we wait for it. While her contributions are valuable, I suspect we would be better off moving on. I think there is agreement across the chamber to support the Greens’ amendment.

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

I thank the minister. The prospect of me talking under water is just as daunting as him skating on ice.

Question agreed to.

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

We oppose schedule 1, item 5 in the following terms:

(3)    Schedule 1, item 5, page 4 (lines 12 to 21), item to be opposed.

I also move Australian Greens amendment (5) on sheet 5911:

(5)    Schedule 1, page 4 (after line 27), after item 6, insert:

6C  After subsection 24(2)

Insert:

Minors

      2A)    In making a decision under subsection (1) in relation to a person who is eligible to become an Australian citizen under subsection 21(5) (the child), the Minister must give primary consideration to the best interests of the child.

I understand that we will have to vote on them separately, but I will speak to them collectively. The amendment goes to concerns that I raised in the second reading amendment in relation to the exemption item on minors under the arrangements currently in place. Amendment (5) builds on this notion. As I mentioned during my contribution and to the department when my office received a briefing, we are concerned over removing the ministerial discretion clause. As it currently stands, the legislation allows the minister to grant citizenship to a child or a young person who is not a resident. I have already spoken at length about our concerns with decisions that may, if this is removed, not be made in the best interests of the child as per our obligations under the United Nations Convention on the Rights of the Child.

Amendment (5) builds on what the Greens were trying to achieve with my previous amendment, and this is to insert a new requirement into section 2A that the minister would have to give primary consideration to the best interests of the child. It is understood that this affects only a small number of people. I am completely aware of that and recognise that. I guess, in the same tone, I therefore think that, if it is only a small number of people, the last thing we want to see, even if it were only for one child, is a decision not made in their best interests. Often they do not have a say over their applications for various visas and different types of immigration status. If it were in the best interests of the child to apply for citizenship and there was no ability to do that because we had removed the ability to apply without being a permanent resident, I am just concerned that down the track there may be a child or children subject to decisions not made in the best interests of their welfare.

That is the crux of the argument. I am concerned about it and I have raised it. I understand that the coalition and the government have a different point of view. There was also a concern that those issues need to be managed through the migration process and the Migration Act as opposed to the Citizenship Act. I accept that, but until I see where we might move to address those concerns I would not want us to leave a child in a situation where a decision is being made that is not in their best interests.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to 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.

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

I will also make some comments. I accept the sentiment with which this amendment has been put and this item opposed, but we support the government on this issue. As the minister said, over the years—and it is certainly my experience of immigration cases—regrettably in some circumstances people often do use their children, and they use them mercilessly, as a backdoor way of exploiting the immigration system. As the minister correctly pointed out, if there is a slight gap in the door they will go right ahead and use it.

Indeed, this issue took up quite a proportion of the hearing of the Legal and Constitutional Affairs Legislation Committee into this bill. I would like to refer to the department’s submission. It states:

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

I appreciate the issues around removal—and certainly Professor Rubenstein and others made comments in relation to this—but it was not the intention of the Australian Citizenship Act, in particular section 21(5), that unauthorised arrivals in Australia who are under 18 years of age at the time of their arrival would have the right to Australian citizenship on their arrival. So the requirements that all applicants be under the age of 18, be permanent residents at the time and be eligible for citizenship to be conferred are supported.

At the hearing, evidence was given by people who work in this area and, of course, are very familiar with the few cases that deal with this particular issue. But there are a very small group of people and when we pressed them we saw how small that group really is. I think the opportunity should not be there any longer for potential exploitation. It is anticipated that, with exceptional circumstances, these people can be appropriately accommodated, as the minister said, under the Migration Act provisions and if necessary, as the department pointed out at the hearing and in its submission, by way of ministerial intervention powers available under the act. Of course, once granted a permanent resident visa under the Migration Act, there would be a pathway there for citizenship.

On that basis we will not be supporting the Greens amendment (3) or opposition of item 5 in relation to eligibility for minors.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Greens amendment (5) on sheet 5911 be agreed to.

Question negatived.

The Temporary Chairman:

The question now is that item 5 of schedule 1 stand as printed.

Question agreed to.

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

I now have to do a Senator Fierravanti-Wells impersonation and talk under wet cement to take us out to two o’clock! As I understand it, the opposition will be seeking to move amendments to the suggested approach that the government has put forward to deal with those persons who have a special requirement to qualify for citizenship but would otherwise be precluded by looking to expand ministerial powers. The Labor Party and the Rudd Labor government prefer the approach we have adopted, which is to specify the circumstances upon which those persons qualify and to lay that out in the act and in the regulations. We think that just expanding ministerial powers without proper reference in the legislation and without proper guidance for decision makers encourages the sort of behaviour we have seen in ministerial intervention in protection and other visa cases, whereby there has been an enormous growth in applications from a couple of hundred when the changes were made to, now, more than 5,000 per year.

I fundamentally believe that a decision about a person’s right to citizenship ought to be determined by this parliament. It ought to be laid down in the act and in the regulations, and it should not be a question of the personal fiat of the then minister to determine who should be a citizen or not of this country. I much prefer that and I think it is a much sounder approach for us to set out the guidance and the legal requirements in the act and have the department apply those against the applications made by those seeking citizenship. I think that allows the parliament to properly express its view.

Progress reported.