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

I would like to continue, briefly, my comments from last night. I was talking about the various concerns that we have about the government’s proposed amendments in the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009. The Australian Greens position is that we do believe that this bill will offer some improvements on the current citizenship test. I put firmly on the record once again that the citizenship test is something that the Greens have always opposed. We do not believe that the most appropriate way of testing or ascertaining somebody’s allegiance to Australia is by doing a written test. However, we understand that that is the current situation and that this bill does build on the current legislation and improve it somewhat.

We also would like to highlight, briefly, that there were a number of recommendations made by the Australian Citizenship Test Review Committee—on which the amendment that has been put forward by the Greens and circulated in the chamber is based—that have been adopted by the government. But there were a number of other recommendations which the review committee put in their report which have not been adopted by the government. I encourage them to do so. One of the main issues was to ensure that we maintain transparency and appropriate levels of scrutiny over the make-up of the citizenship test. I strongly urge the government to reconsider the recommendation made by the Citizenship Test Review Committee to ensure that all questions are made publicly available, to allow the appropriate scrutiny and discussion around what are appropriate questions to be included in the test.

In summary, our major concerns are with the current wording of the definition of torture and trauma. We understand that the government’s approach is to try to be more inclusive of vulnerable people who are disadvantaged by the way that the test is currently carried out. We understand that, but we believe that the terminology put forward by the government in this amendment bill is not quite clear enough and does not necessarily deal with all of the concerns. We are also concerned that, for people who are listed as sufferers of torture or trauma, and who therefore have an inability to complete the test, that suffering of torture or trauma has to have happened offshore. The legislation does not recognise that there are people who come to Australia on various types of visas. They may be trafficked to Australia as part of the sex trade and they obviously suffer torture and trauma while here in Australia. We would like to ensure that those people are looked after as well.

We are concerned also about the amendment that has been circulated by the government in relation to changes to do with the length of time that somebody needs to be a permanent resident before applying for citizenship—in particular, elite sportspeople. I will take some time during the committee process to question the minister about that. The Greens are not necessarily opposed to the idea, but we would like to see what the evidence is behind needing those amendments, seeing as they were put forward after the committee process. It would have been helpful to have been able to deal with that issue during the committee inquiry. I know that that is the opposition’s view as well. It would have been good to have been able to do that. We were not able to, so I guess in the committee stage we can try and get some more clarity on that issue.

I also stressed last night the issue in relation to minors and removing the ability for somebody under 18 to apply for citizenship without being a permanent resident. I am concerned that that amendment will mean that decisions are not always going to be made in the best interests of the child. That is obviously a concern. We are signatories to the Convention on the Rights of the Child, and we need to ensure that decisions are made in the best interests of the child. Many of the migration decisions and visa options put forward for children are not put forward by them, so the ability for the minister to uphold their rights and to act in the best interests of the child I think is an important element we need to maintain. Therefore, the Greens do not support that particular part of this amendment bill. Thank you.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand to speak on the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009. I would draw the Senate’s attention to the Senate Legal and Constitutional Affairs Legislation Committee report just tabled, in September 2009, and in particular the Liberal senators’ comments in that report. I note that the bill was referred to the Senate committee on 25 June, to deliver a report by 7 September.

The bill seeks to amend the Australian Citizenship Act 2007, and we know that it makes changes to the citizenship program which you might consider technical and administrative but are actually very important. The funding for the citizenship program is $123.6 million, provided over five years in the 2007-08 budget, to establish and implement the test. The need for the test has certainly received strong community support. There has been a review of the citizenship test. The Hon. Dick Woolcott headed the Australian Citizenship Test Review Committee, undertaking that review with others and delivered a report, which of course took many months.

I give that as the background, because, just days before the report was tabled by the Senate Legal and Constitutional Affairs Legislation Committee on September 7, the government introduced amendments to their own amendments. And then, subsequent to that, they introduced further amendments to those amendments. What we have here is a problem for the government in terms of process—in terms of getting their act together to ensure that the parliament, the public and certainly the people in this chamber have a proper opportunity for full and frank discussion to take place with respect to the merits or otherwise of these amendments. Senator Hanson-Young has quite rightly noted on behalf of the Greens the concerns that she has in this respect. She needs time to review those amendments and consider them. Of course she does; all senators should have adequate time to consider and review them. So there is a real problem there.

The government have had time. They had so many months during the Woolcott review, the Australian Citizenship Test Review Committee. The review committee went all around Australia, took submissions, listened to members of the public and delivered their report. The government acted on that report, but subsequent to that they had a knee-jerk reaction and introduced further amendments. I will come to those shortly, but, clearly, the cart has been put before the horse.

The substantive bill, prior to those recent amendments, provides:

… that certain applicants may be eligible for citizenship without sitting the citizenship test if, at the time of application, they have a physical or mental incapacity that is as a result of suffering torture or trauma outside Australia …

Senator Hanson-Young referred to this provision, and the committee report made it very clear that there were concerns, certainly from the Liberal senators’ perspective, about the focus on the torture or trauma being ‘outside Australia’. I will come to that in a minute. The bill also provides:

… that the citizenship test must be successfully completed within a period specified … and

• provides that to be eligible for citizenship by conferral, applicants who are under 18 years of age must be permanent residents at both the time of application and the time of decision.

The bill also streamlines the application process so that citizenship testing and citizenship application can take place in one visit to an Immigration office.

The Senate committee had 21 submissions, with a public hearing in Melbourne on 27 August. At this point in time I would like to register my thanks to the committee secretariat for their great support and assistance: Peter Hallahan in particular, Tim Watling, Cassimah Mackay and others in that team. We had some very capable, competent witnesses, including Professor Kim Rubenstein, who sat on the Citizenship Test Review Committee; she provided invaluable advice. We thank her and the other witnesses for their submissions.

Concerns expressed about the bill in the opposition senators’ dissenting report made it very clear that the effort to remove the requirement for a ‘permanent’ physical or mental incapacity was not on. We did not support it, we still do not support it and we note that the government has now amended the bill to substantially accommodate at least the coalition senators’ views, and, I believe, other people’s views, to ensure that that is taken into account.

Concerns were raised at the hearing about the extension of the exemption to one category of people, namely those who had suffered torture and trauma outside Australia, to the exclusion of others—for example, women who have suffered torture and trauma in Australia as a consequence of trafficking. That is a very important issue. In fact, I know that you, Mr Acting Deputy President Bernardi, view that with abhorrence. Why should they be excluded because it happened in Australia? The government have tied themselves up in knots by identifying one group only, to the exclusion of others. Even this week we have heard from the Voices for Justice people, who support the Make Poverty History campaign and the Millennium Development Goals, and we know their views with respect to people-trafficking, whether it is in Australia or in another country. They certainly oppose it, as do I, and I know others in this chamber do also.

The methodology suggested by the Citizenship Test Review Committee is simpler and non-discriminatory, and coalition senators suggested in their dissenting report that the review committee’s proposed amendment be adopted, with the addition of the word ‘permanent’. We have an amendment circulating in the chamber, and I know Senator Fierravanti-Wells, during the committee stage of the bill, will prosecute the case to ensure that we get a balanced, fair approach rather than a discriminatory approach, as was listed in the primary amending bill.

What we do support is providing as much assistance as possible to people who perhaps for physical or mental incapacity or whatever other reason are prevented from sitting the standard test. That is set out in our report. For example, the administrator may read aloud the questions and multiple-choice answers, ask the person which answer they think is correct and select on the computer the answer that the person indicates, and an applicant would have 90 minutes to complete the test, double the time allotted for others. So we support extending the assistance available to people to help them pass the test rather than opening up the category to a wider group of people and hence to potential exploitation.

I note the fact that the Hon. Chris Evans, the Minister for Immigration and Citizenship, provided the amendments to our Senate committee in a letter dated 31 August. As I indicated earlier, we had to deliver our report on 7 September, so there was an entirely insignificant and inadequate amount of time to consider those amendments. There were some four pages of amendments and some seven pages of notes, which obviously had to be considered on their merits. I also note that the government has now amended those amendments, which puts everybody under pressure and makes it challenging and difficult at the very least. So the onus is on the government to outline the urgency of waiving the residency requirements for athletes and other categories. In the ordinary course, the proposed amendments ought to have been open to proper examination and scrutiny by the committee and by groups and organisations wishing to make submissions on them. That will now have to take place in an ad hoc and challenging way.

I will speak very broadly to those amendments. There appear to be two significant additional amendments. One relates to elite athletes. That has been rushed into the bill. The other relates to discounting the residency requirements for citizenship for professionals whose work takes them regularly offshore. With respect to elite athletes and, indeed, non-citizen tennis players currently unable to satisfy residency requirements for citizenship in time for international competitions where they would like to represent Australia, I have to say, frankly, that I am a very keen tennis player, as many senators and members know—I play tennis on a Thursday morning with colleagues to ensure a healthy, active lifestyle in and around Parliament House—and I strongly support Tennis Australia and the work that they do. However, with respect to determining the appropriateness or otherwise of certain tennis players for citizenship purposes, I am at a loss to understand why the government would want to go down the track of picking out Tennis Australia and certain elite athletes and passing an amendment specifically for them.

What is wrong with the ministerial discretion approach, where the minister can take into account the public interest and the circumstances of the person concerned and pass that person in terms of their citizenship test? Why not go down that track and ensure that the minister has that discretion? I think that is a far better and safer way to go. Perhaps there is a workload issue there for the minister, but that is what ministers are for. Particular with respect to immigration, they are to provide the check and balance in the public interest, to determine what is right and wrong, to look at the merits of the case and to make that decision. We can still accommodate the needs of any particular stakeholders or people concerned, so long as that is in the public interest and so long as they meet the relevant requirements of the citizenship test.

We look forward with interest to the committee stage of this bill and to the government fleshing out in further detail the reasons they have introduced not only the initial amendments but the amendments to the amendments. We want to get a good grip on the government’s objectives and to express the coalition’s views in response to them. Again I commend Senator Fierravanti-Wells for her work and effort in prosecuting the case to ensure that we get a balanced approach.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Before addressing the specifics of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009, I wish to make a few comments about the history of the citizenship test. The stated rationale for the introduction of the test was to make sure that new citizens had a good comprehension of the rights and requirements of citizenship, that they had a sound understanding of the application process and that they had a basic knowledge of English. That first test commenced, as I understand it, back in October 2007.

The original testing process was to answer a series of multiple-choice questions which were selected randomly and answered via a computer. This immediately raised issues of fairness around the level of computer literacy of those undertaking the test—in other words, a person may have had a basic ability in English but they may not have had any experience with computers. This is a challenge that is not unique to people new to Australia. Computers can be daunting for many people who are already Australian citizens—such as me!

Other questions were raised about the confidentiality and content of the questions that were included in the test. And, given that the questions were selected randomly, some asked why it was a requirement for the questions to be confidential: surely if this information is so important for all Australians to know, it can hardly be a secret? There was also some public concern that historical and sporting figures and facts were included amongst the list of possible questions. Most notably, the media coverage was quite extensive about questions on Don Bradman’s performance in test cricket. It was in the information booklet, and perhaps the minister can correct me if I am wrong, but I do not think it was actually in the test itself. It may have been alluded to obliquely in one of the test questions, but it did become a focus of public and media concerns.

Due to these concerns the government announced an independent review into the citizenship test and its report was released in August last year. This bill seeks to implement the findings of that review. However, there is much more to the story of this bill than this brief history of it. There has been a debate about the nature of the test and what is the fairest and best process for becoming an Australian citizen. One of the key findings of the review was that there was a need for a greater emphasis on education and the civic responsibilities required of Australian citizens. I welcome the change stipulated in this bill to put the emphasis of testing on the pledge of commitment, while information about the history and lifestyle of Australians has become an important but untested resource provided to test applicants. I also note that the review was critical that there was not enough allowance for those who understood the requirements of citizenship but struggled to retain the English language due to mental incapacity, traumatic experiences or other incapacities. I welcome the spirit of these changes made in this bill, although I am aware of the coalition’s concerns in relation to aspects of these changes.

In relation to these specific changes, the bill firstly seeks to make it easier for certain people who have a mental incapacity due to torture or trauma suffered outside Australia to be eligible to apply for citizenship by not sitting the citizenship test. Secondly, it allows prospective applicants for citizenship by conferral to sit the test at the same time as making the application. Thirdly, it makes arrangements for applicants under 18 years of age who apply for citizenship to be permanent residents both at the time of application and time of decision.

On the whole I think it is fair to say that the main thrust of the bill was supported by all parties. That said, I note the Greens have raised concerns about the definition of torture and trauma used for exemption from the test, the need to include trauma caused within Australia as a criterion and the importance of matching the international standards of the rights of the child when considering conferral. I discussed these with Senator Hanson-Young last night and I am quite persuaded by the arguments she has put forward. I can indicate that I am supportive of the amendments to be moved by the Greens.

The government has also foreshadowed amendments to the bill. These amendments have been the subject of a more concerted interest in the last few days. My office has had consultation with the offices of the Minister for Immigration and Citizenship and also Senator Fierravanti-Wells over the past few days in relation to these amendments. I would like to thank both the minister’s and Senator Fierravanti-Wells’s offices for their assistance.

The purpose of the government’s most recent amendment is to provide for a reduced period of residence for persons in special circumstances who wish to become Australian citizens. My understanding is that originally these persons included athletes for whom the full residence period would prevent them from qualifying for international sporting events and offshore workers whose work, by its nature, requires them to be away from Australia regularly, such as offshore oil workers or airline staff. The government has argued that without these changes their professional opportunities would be inhibited, making it impossible for those who must travel overseas for work to ever become Australian citizens.

I am aware that the coalition has expressed its concern that these amendments need to be more overtly in the public interest and more transparent. Further, in relation to the access for athletes to shorter qualification periods, I understand the coalition is concerned about any move that may represent ‘medals for citizenship’. In information received by my office this morning, the minister’s office has flagged further amendments to expand the definition from ‘athletes’ to ‘a specialised activity’ and I think that is much better approach. This would broaden the category to other important groups, such as scientists or musicians, who contribute to the public interest in a sense. They have valuable skills that this country would benefit from. I am looking forward to the committee stage in relation to these changes, but I can indicate that I think that broadening the category is a much better approach. I am also looking forward to the committee stage debate on a number of these matters. In relation to the other coalition concerns about the definitions of torture and trauma, as well as the whole issue of permanent or long-term incapacity, I understand that these will be supported and I think that Senator Hanson-Young has a number of amendments in relation to these issues.

I think the public interest test and greater ministerial discretion over decisions will be the main battleground of this bill. My understanding is that the government is concerned that a public interest test would open a floodgate of applications. I note that the minister has shown a disinclination towards greater ministerial discretion on a number of issues. He has set that out clearly in the past and I am sure we will hear more about that in the committee stage. I would like to hear the debate on the issue of the public interest test, along with greater transparency of decision-making processes. In relation to the issue of immigration, citizenship and Australian identity, I think in the past there has been a bit of ideology used, but I think that what the government is seeking to do is, on balance, a good thing and that broadening the categories is the right thing to do. I look forward to having an improved citizenship test process because Australia is one of the countries that has been built by immigration, particularly in the post-war period. Australia really has a proud record of multiculturalism and being welcoming to citizens from all around the world.

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

I wish to thank all the senators for their largely positive contributions to the debate on the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009. I table a replacement memorandum relating to the bill. The government is very committed to a pathway to Australian citizenship that is robust, involves active learning about citizenship and empowers our new citizens with knowledge of this country, our people, our traditions and our laws. We believe it can play an important role in a migrant’s journey to Australian citizenship.

We also believe that there ought to be pathways for all who seek to join our society and who meet our basic requirements. We do not believe we should place artificial barriers that are unreasonable or unfair in the way of potential citizens. A lot of what this bill is about is making sure that, having seen the experience of the citizenship test, we ensure that there are no false or unfair barriers. I think the Citizenship Test Review Committee did a fantastic job in speaking with the community, analysing their concerns and coming back with recommendations which the government, in large part, have adopted. I think their move to put the pledge of commitment as the centrepiece of our citizenship test provides an intellectual framework that was missing from the previous test. It is a great initiative and that is why the government endorsed it.

We are very keen to get through this bill before question time today, so I will be brief. In this bill we have attempted to respond to the concerns of the committee regarding torture and trauma victims. During the review by the Senate Standing Committee on Legal and Constitutional Affairs, their attention was drawn to the fact that the bill, as it is currently worded in relation to this provision, may have been inadvertently focused too heavily on incapacities arising from traumatic events only when they have occurred outside Australia. Obviously there are instances of people who have been trafficked et cetera who may require a broader definition.

I hasten to stress that these provisions are designed for a small group of people who might be incapable of meeting the other requirements. It is not envisaged that they will be used for a large group. They are to deal with a specific group that the committee found to be disadvantaged and perhaps incapable of becoming citizens as a result of those requirements. Senator Hanson-Young indicated she would move amendments that I think will address concerns about incapacity arising from traumatic events, where they have may have occurred inside Australia. I think those amendments are worthy, and the government is inclined to support them. As I say, all the measures in the bill and the measures we are taking in relation to the test are designed to ensure that everyone has a pathway to citizenship, that we meet their needs and that they have a knowledge and understanding of the step they are taking.

I want to focus on why the government will today move further amendments to those we moved on 7 September. Effectively, we will do so in response to the debate we have had not in the chamber but around the parliament. I appreciate that Senator Fierravanti-Wells and others have engaged with us on how we might address genuine concerns with how we originally framed those amendments. I understand they may well move further amendments, but I want to stress that this is our response to the concerns they have raised. We think these amendments adequately address those and are in the best format to address them. I am grateful that people have attempted to deal with these issues in a constructive way, and we think the response is constructive in meeting those concerns. We think the bill will be better for the amendments I will move today. Those amendments have come out of suggestions and concerns raised with us as part of the discussions.

On 7 September in response to a number of organisations and individuals the government circulated a draft amendment to this bill. I know there has been some concern about process, but these issues arose more recently and this is a good opportunity to include them in this bill now rather than wait until we get through the whole legislative process again. The amendments seek to introduce a special resident requirement for a small group of people who did not have a pathway to citizenship due to work related travel requirements. While such people remain in those occupations, they will never be able to meet the current residence requirement for Australian citizenship. This issue has been raised with me by a number of members of parliament, including Liberal members of parliament, who have had constituents come to them. I think Ms Julie Bishop raised the issue with me regarding a scientist in the Antarctic. We were able to resolve it. This is an issue where people basically cannot, as a result of their occupation and being out of the country for long periods, get access to citizenship. They are Australian permanent residents—that is, people who have made their lives here. As we know, we live in a global economy now and people work in quite unusual arrangements.

In order to meet the current resident requirement, people who became permanent residents of Australia on or after 1 July 2007 must have been present lawfully in Australia for four years immediately before applying, including for 12 months as a permanent resident immediately before applying. In this period of four years, a person may have had absences from Australia of no more than 12 months, including no more than 90 days in the 12 months immediately before applying. I remind the Senate that these changes were made in July 2007 by the previous government. The changes increased the residency requirement from two years to four years. If you like, what we are dealing with now are some unintended consequences—that is, issues that were not addressed then—and the impact of moving to the higher residency requirement. I do not think any of the changes run counter to the intent of the legislation of 2007, but with the experience of the new act we have come across a range of problems with pathways for people. These amendments seek to address those.

Elite athletes, tennis players and professionals such as international airline pilots and offshore oil rig workers often do not meet the residency requirements for Australian citizenship because they travel extensively outside Australia as part of their employment. Some would say I do not meet the residency requirement to be classed as a West Aussie these days, given the amount of time I spend here. But luckily that is not a formal requirement. I keep my biases, which is the main qualification! Many people in this category have partners who are Australian citizens and children who are Australian citizens and attend Australian schools and it is simply because of their professional travel commitments that they have not become Australian citizens. Their partner and their kids may be Australian citizens, but they are prevented from qualifying. This effectively excludes a cohort of permanent residents who are 100 per cent committed to Australia. We do not believe that the general residency requirement as applied to this group is fair. We think it is an artificial barrier that ought to be fixed.

There are some activities, such as those conducted by elite athletes, which further require them to have Australian citizenship to participate in their chosen activity. There is a lack of a variable pathway to citizenship for people who require citizenship and travel for work related activities. They are particularly disadvantaged by the current residency requirements. People in the special circumstances outlined above will under the proposed amendments: need to have been a permanent resident for two years before their application, with at least six months physically in Australia; require citizenship for a specified activity; and have to have their application supported by a recognised national peak body. Specialist professionals such as oil rig workers and airline pilots will need to: have been lawfully resident in Australia for the four years immediately before applying for Australian citizenship, with at least 16 months physically in Australia; travel extensively in the course of their work; and have their citizenship application supported by their current employer. One person in this category I was approached by was an Emirates pilot. He was unable to qualify because of the nature of his shifts.

All applicants will need to be able to show that, despite spending periods of time overseas, their home is in Australia. They will also need to meet all other legal requirements for citizenship, including sitting and passing the citizenship test. We believe the revamped requirements will create a fairer system for people who, due to circumstances related to their work, are currently ineligible for citizenship.

Since moving those amendments, the Liberal opposition and others have raised with me issues that effectively say the amendments, as currently worded, are defined too narrowly. The effect of this is that the amendments may have excluded some people who require citizenship to engage in particular activities which are of benefit to Australia. Therefore, the government is proposing to introduce the revised provisions, which I have circulated, which seek to provide, in schedule 2 of the bill, for a special residence requirement for (1) people seeking to engage in activities that are of benefit to Australia and (2) certain people engaged in particular kinds of work requiring regular travel outside Australia. This takes away what was an unnecessary focus for the requirement of a person to represent Australia at events, which is one of the concerns the opposition raised, and refocus it on the nature of a person’s activity and the requirement for citizenship to engage in that activity. These amendments, while minor, will give the flexibility to include people, as Senator Xenophon mentioned, who are engaged in activities which are of benefit to Australia, activities which require them to be citizens and to travel extensively outside Australia.

I understand the opposition will be proposing an amendment to give more discretion to the minister in relation to these measures. Effectively, I think that puts us in the same policy space and direction but also in an argument about the best way of doing this. If that is the case, and it seems to be, I would argue that the way we have constructed these amendments in response to those concerns expressed by the opposition is a better legislative solution. Perhaps I will be clear on that during the committee stage when Senator Fierravanti-Wells speaks to the amendments.

We reiterate that the bill is an important advancement on the citizenship provisions. It takes advantage of the experience and the work of the Citizenship Test Review Committee. The amendments which I have moved today seek to address a number of problems which have been raised by sporting organisations—such as the Australian Olympic Committee and Tennis Australia—and by individuals and members of parliament on behalf of those individuals who have been frustrated by the lack of a pathway to citizenship. The fundamental approach and principles behind this bill are to ensure there are pathways for genuine applicants for Australian citizenship, that all those who make a genuine commitment to Australia and are of good character can find a pathway to citizenship and can fully participate in our society. It is not in the nation’s interests to exclude people who would otherwise be good citizens. This amendment bill seeks to address some of those issues and continues to build on what is probably one of the world’s leading pieces of citizenship legislation. Australia has been at the forefront of development of citizenship concepts and legislation and I think this will further enhance that position.

Bill read a second time.