Australian Citizenship Bill - Update September 2017
By Mark Webster
Monday, 18 September 2017
Motion to Discharge Citizenship Bill from Senate Notice PaperOn 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 BillThe 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 RequirementThe 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 LegislationWhen 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 RequirementThe 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 TestDissenting 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 AustraliaChildren 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 pledgeThe 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