Australian Citizenship Bill - Update September 2017

By Mark Webster
Monday, 18 September 2017

Australiancitizenship-update-harbour-bridge-night A Senate Committee has produced a report on the Australian Citizenship Bill which was introduced in June 2017. The Committee found issues with the proposed legislation and recommended that changes be made before it is passed.

A motion has been passed by the Senate that if the Bill has not passed by 18 October 2017, it will be struck off the list of legislation being considered and will need to be re-introduced to Parliament for it to pass.

This article gives a summary of the Senate Committee Report and details of the motion to discharge the Bill.

Motion to Discharge Citizenship Bill from Senate Notice Paper

On 13 September, the Australian Senate has passed a motion to have the Citizenship Bill discharged from the Notice Paper of legislation under consideration.

As a result, if the Bill is not passed by 18 October 2017, it will no longer be under consideration for passage by the Senate and would need to be re-introduced into Parliament.

As there are only 4 sitting days of the Senate before this date, it is looking likely that the Bill will be discharged.

Community Feedback on the Bill

The Senate Inquiry received 13,500 submissions on the Citizenship Bill. The overwhelming majority raised serious concerns, and only 0.01% of the submissions were in favour (one of which was from the Australian Government).

English Language Requirement

The Bill requires most applicants for citizenship to show "Competent English", but did not specify the level required and this can be set by legislative instrument. This is defined elsewhere in the Migration Regulations as 6 in each band of IELTS or equivalent score in one of the other English tests, but the Bill did not link to this definition. Currently, no formal English test is required and this is assessed by the applicant completing the Citizenship test, which is estimated to require English at approximately the IELTS 4 level.

The majority report recommended that the requirements the proposed "Competent English" requirement be "clarified". It recommended against "adopting a standard that may current citizens could not reach" - this would imply that a standard lower than Competent should be applied.

Dissenting reports expressed concern that the proposed level of English was inappropriate, and in particular:

It would lead to large segments of the Australian community unable to attain citizenship
Refugees and migrant spouses would be disproportionally affected
The proposed level of English is very high - the Australian Council of TESOL Associations estimates that approximately 7 million Australians were below IELTS 6 level in 2012-13.

Retrospective Application of Legislation

When the proposed changes to citizenship requirements were announced on 20 April 2017, the intention was that these would apply to any applications lodged on or after this date. This is of concern to many permanent residents because there was no advanced notice of the change.

The Committee received many letters from permanent residents who were already eligible for Australian citizenship prior to the announcement of the changes.

47,328 people had lodged applications for citizenship between 20 April and 16 July 2017. The Department of Immigration estimates that 25,788 of these people would not meet the new residence requirement. These applications are not being processed pending gaining certainty around passage of the Bill, and so it is very important for these people to know whether the changes will be retrospective.

The main report recommended that the Government consider introducing transitional provisions so that people who held permanent residence prior to 20 April 2017 would not be affected by the changes.

Dissenting reports recommended that the legislation not be retrospective in effect in any way.

Residence Requirement

The Bill proposes that the current 1 year minimum period of holding permanent residence be increased to 4 years for most applicants. Currently, time spent lawfully in Australia on temporary and bridging visas can count towards the 4-year residence requirement.

The main report did not recommend changing the proposed residence requirement, but did acknowledge the significant impact on permanent residents who had made future plans based on eligibility for Australian citizenship. As a result, the committee recommended that transitional provisions apply to people who held Australian permanent residence as of 20 April 2017.

Dissenting reports were scathing on the proposed residence requirement and in particular:

Residence in Australia on a temporary visa does indicate a commitment to Australia
Not being able to obtain citizenship can reduce people's contribution to Australia
Quoted many instances of people who had been in Australia for long periods of time and contributed to the economy
Labor cited a lack of evidence that longer residence would actually result in better integration and social outcomes

Integration Test

Dissenting reports held that the proposed changes will negatively impact the cohesion of Australian society and would actually increase the risk of security issues. For instance:

Labour suggested that programs supporting integration into the Australian community be boosted - for instance the Adult Migrant English Program, the National Community Hubs Program, the Translating and Interpreting Service and various State and Territory services
The Federation of Ethnic Communities' Councils of Australia (FECCA) believes that the bill will "create a permanent underclass of Australian residents who will be denied the rights and opportunities of ... being Australian citizens"

Children Born in Australia

Children born in Australia currently become Australian citizens by operation of law on their 10th birthday - even if they spend time in Australia without a visa. The proposed legislation would eliminate this pathway.

The main report echoed concerns expressed by the Australian Human Rights Commission, Public Law and Policy Research Unit, Law Council and the Kaldor and Gilbert + Tobin Centres on the impact of the proposed changes, especially for children of asylum seekers and children of parents who had overstayed their visas. However, it made no recommendation to change this aspect of the Bill.

The Greens expressed serious concerns about the impact of the changes on children, particular if they became stateless or were punished for transgressions of their parents. The Greens cited submissions from UNICEF and the Australian Lawyers Alliance. The Nick Xenophon Team report also expressed concerns.

Increase in Ministerial Discretion

Ministerial Discretion to cancel, revoke or delay taking of pledge

The Bill introduced new powers for the Minister to:

Cancel approval for citizenship
Revoke citizenship
Delay an applicant taking the pledge of allegiance for up to 2 years

The main report expressed some concern about the expansion of ministerial discretion but stated that the power to revoke was justified on national security grounds.

Merits Review and Ministerial Discretion

Some Ministerial decisions would be excluded from merits review at the Administrative Appeals Tribunal (AAT). The Minister would also have the power under the proposed legislation to set aside decisions at the AAT, if refusing or revoking citizenship is in the public interest.

On this ground, the main report indicated that the Minister's power was justified on the basis that they were accountable to the Australian people, whereas the AAT is "accountable to no one".

The Greens were highly concerned about the Minister's power to revoke citizenship and override AAT decisions.

Broad Instrument Making Power

Concerns were expressed about the broad instrument making power of the Minister in submissions to the Senate Committee. Instead of having requirements set out in the Citizenship Act, many key requirements would be set out by Legislative Instruments which are not "disallowable" and hence excluded from Parliamentary oversight. An example of this would be the statement of Australian values, but the Bill gives the Minister seemingly unfettered power to make instruments. The explanatory statement indicates that the intention of these is to be able to specify matters such as the method of payment of fees, but there is no explicit restriction to this effect.

The main report echoed concerns which had been expressed by the Scrutiny of Bills Committee but did not make a recommendation to change the Bill in this aspect.

The Nick Xenophon Team report expressed concern about the Minister's broad instrument making power, particularly in relation to the Australian Values and integration assessment components.

Repeat Sittings of the Citizenship Test

The Bill allowed the Minister to set a maximum number of times an applicant can sit the Citizenship test - the Department of Immigration indicated it would set a limit of 3 times.

The main report suggested that repeat sittings be allowed, but taking the test after 3 times would require the applicant to pay for the cost of the test.

The Nick Xenophon Team report suggested that there be no limit to the number of times a person can sit the test.

Conclusion

Passage of the Citizenship Bill is far from assured. The majority Senate Report expressed concerns about the retrospective impact of the Bill and the English language requirement, and dissenting reports expressed concerns with most aspects of the Bill, including the proposed residence requirement, the impact on children born in Australia and the increased powers of the Immigration Minister.

If the Bill is not passed by 18 October 2017, there is a strong chance that the Bill will not pass at all, or at least not without substantial revision.

We will update readers as soon as we have further news on the Citizenship Bill - in the mean time, if you would like advice on qualifying for Australian citizenship, please book a consultation with one of our advisors.