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Thursday, 23 October 2014
Page: 11744


Mr FLETCHER (BradfieldParliamentary Secretary to the Minister for Communications) (09:04): I move:

That this bill be now read a second time.

Australian citizenship is something to be treasured. It is a common bond which unites us all, whether we were born here or chose to make Australia our home. Australian citizenship involves a commitment to this country and its people. It is a privilege which should not be taken lightly.

This year, we celebrate the 65th anniversary of Australian citizenship. It is therefore appropriate to review the Australian Citizenship Act 2007 to ensure that it upholds the value of our citizenship. This bill, the Australian Citizenship and Other Legislation Amendment Bill 2014, supports the integrity and effectiveness of the citizenship program, providing a clear legislative framework to underpin the government's policy.

The bill has a range of amendments grouped into three broad themes:

strengthening program integrity;

underlining the importance of connection to Australia; and

improving decision-making.

The first theme is strengthening program integrity.

Currently under the Citizenship Act revocation may be considered in cases where a person has acquired Australian citizenship 'by application' and:

has been convicted of making a false statement or misrepresentation in relation to a migration or citizenship application that resulted in them becoming an Australian citizen; or

has committed a serious criminal offence prior to becoming an Australian citizen, failed to disclose it on application, and is convicted of the offence after making an application to become an Australian citizen. A serious offence is one where a person was sentenced to death or a prison sentence of 12 months or more. This provision applies to serious criminal offences committed in Australia or overseas; or

has acquired citizenship since 1 July 2007 as a result of third-party fraud where the third party who committed the offence has been convicted of the offence.

After one or more of these criteria have been met, the minister then must be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

The minister can revoke Australian citizenship where a person acquires it 'by application'. This means through conferral, descent, or adoption in accordance with the Hague Convention on Intercountry Adoption.

The bill expands the minister's power to revoke citizenship when satisfied that the person became a citizen as a result of fraud or misrepresentation, by allowing revocation without a prior criminal conviction for fraud. Law enforcement agencies and courts have limited capacity to prosecute all cases of fraud, or any other type of criminal behaviour, thereby reducing the ability of the government to ensure that high community expectations of behaviour are maintained in respect of those who obtain Australian citizenship. In line with other revocation provisions, the government intends that the minister must be satisfied that it would be contrary to the public interest for the person to remain a citizen.

The Citizenship Act has two mechanisms for assessing the character of an applicant.

The 'good character requirement' extends to everyone who applies to become a citizen aged 18 years and over. The bill amends these provisions to require applicants aged under 18 to also be of good character. Character concerns are not limited to adults and indeed the Department of Immigration and Border Protection has had serious concerns about the character of certain applicants aged under 18. In practice, the change will mean that the department may now seek to obtain police clearances for 16-17 year olds. It would also be able to assess the character of youths younger than 16 if the department becomes aware of particularly relevant character issues.

Secondly, the act currently prevents the minister from approving a person becoming a citizen by conferral in circumstances related to criminal offences. The bill promotes consistency by providing that this bar on approval will also apply to applicants for citizenship by descent, adoption under Hague Convention on Intercountry Adoption and resumption.

In addition, the bill amends the offence provisions to reflect modern sentencing practices, including where a person is subject to a court order for home detention or when they have not been sentenced to prison but are nonetheless under obligations to a court.

The act currently provides that approval of citizenship by conferral for adult applicants may be cancelled, prior to the pledge of commitment being taken, in certain limited circumstances. The bill amends this provision to meet current challenges to program integrity and extends the cancellation powers to cover applicants aged under 18.

The bill provides that approval must be cancelled if the minister is no longer satisfied of the applicant's identity or if they have become a risk to national security. The bill further provides that the minister may cancel approval if satisfied that the person no longer meets other eligibility requirements.

The bill extends the maximum period of time where the minister can delay an applicant making the pledge of commitment from 12 months to two years, recognising that investigations into whether there are grounds for cancellation can take longer than 12 months.

The bill introduces safeguards to the provision giving automatic citizenship to those whose adoptions are finalised in Australia, by requiring such adoptions to be commenced before the applicant turned 18. This amendment is particularly concerned with preventing clients seeking adoption as adults to avoid being removed from Australia after their visas were cancelled under the Migration Act because they were no longer of good character.

The second theme in the measures in this bill is underlining the importance of connection to Australia.

Most applicants for citizenship by conferral must have been present in Australia for four years prior to making a citizenship application. However, there has been some confusion about when this four-year period commences, leading to different interpretations by the Administrative Appeals Tribunal—the AAT. Therefore, the bill clarifies the start date for this period.

The bill also clarifies the scope of the ministerial discretion to allow overseas absences to count towards the residence requirement for spouses and de facto partners of Australian citizens. It was a guiding principle in the new Citizenship Act in 2007 that partners should qualify for citizenship in their own right, not just as the partner of a citizen. The bill therefore entrenches the policy position that the discretion should only be considered if the applicant has spent at least 365 days in Australia in the four years immediately before application. It is important that applicants spend a sufficient amount of time here to understand what being Australian means. Indeed, they must have a connection to Australia, not just to an Australian. The bill also inserts definitions of spouse and de facto partner, aligning them with the definitions in the Migration Act.

People are eligible to acquire citizenship automatically if they are born in Australia to an Australian citizen or permanent resident parent, or if they are ordinarily resident in Australia until their 10th birthday. The bill limits automatic acquisition of citizenship on the 10th birthday to those persons who have maintained lawful residence in Australia throughout the 10 years, including maintaining a right to return if they travel outside Australia during those years. These amendments will not affect access to citizenship by children born in Australia to New Zealand citizens or children who are stateless.

In addition, the bill clarifies that a child born to a parent who was in Australia with diplomatic or consular privileges and immunities cannot automatically acquire citizenship if they are still living here on their 10th birthday. This amendment reflects the policy position that such children are not considered to be 'ordinarily resident' in Australia but are here for a special or temporary purpose only. It would not apply if the child's other parent is an Australian citizen or permanent resident.

The bill also amends the provision giving citizenship to children found abandoned in Australia so it is consistent with the original policy intent, which is to reflect Australia's international obligations under the 1961 Convention on the Reduction of Statelessness.

The bill improves the legal position of citizens by descent who are registered as Australian citizens but are later found not to have been eligible to be so registered. Under the current law, these people are automatically taken never to have been a citizen. The bill repeals this provision and replaces it with a discretion for the minister to revoke citizenship where a person was registered despite not meeting the requirements for registration. This would allow the circumstances of the particular case to be taken into account when deciding if citizenship of such a person should be revoked.

The third theme is improved decision-making.

In line with the Prime Minister's commitment to facilitate adoptions, the bill improves access to citizenship by conferral for children who are granted an adoption visa overseas and whose adoption is finalised overseas, allowing them to enter Australia as citizens. Adopted children can encounter difficulties acquiring a document to travel to Australia if not an Australian citizen.

Most applicants for citizenship have come to Australia as migrants and the Department of Immigration and Border Protection has collected personal information about them under the Migration Act. This personal information is relevant when the person applies for citizenship. Likewise, personal information collected about a person under the Citizenship Act can be relevant if the department is considering whether to cancel the person's visa after a citizenship application has been refused. To ensure that the use and disclosure of personal information within the department complies with the requirements of the Privacy Act 1988, the bill provides that personal information collected under one act and associated regulations may be used and disclosed for the purposes of the other act and associated regulations.

The bill aligns the merits review requirements for conferral applicants aged under 18 with the relevant requirements for citizenship by conferral to prevent unfounded review applications tying up the resources of the AAT.

On occasion, the minister makes personal decisions under the act. The bill makes it clear that the minister can specify that such a decision is made in the public interest. As it is not appropriate for merits review to be available in respect of decisions that have been made by the minister personally the bill protects them from merits review. Judicial review will remain available.

The bill also provides the minister with a power to personally set aside certain decisions of the AAT if it is in the public interest to do so. The Minister for Immigration and Border Protection is concerned that some decisions made by the AAT have led to outcomes that are outside the community standards that citizenship policy is intended to meet, including recent occasions where the AAT found that people were of good character despite having been convicted of child sexual offences, manslaughter, people smuggling or domestic violence.

These amendments to protect the minister's personal decisions from merits review and to allow the minister to set aside decisions of the AAT in certain circumstances will bring the minister's powers under the Citizenship Act in line with similar powers under the Migration Act.

The bill also provides the minister with a power to make legislative instruments. Such instruments may cover issues such as the currencies and exchange rates for fee payment, eliminating the need to amend the Citizenship Regulations every six months.

Conclusion

In conclusion, this bill will result in more consistent decisions on applications for citizenship, bringing fairness and clarity to clients. The amendments uphold the value of Australian citizenship by preserving the integrity of the program. The amendments will also ensure the connection between the applicant and Australia, helping them to understand the heritage that we share as citizens, an inheritance that is ours to steward, protect and enjoy.

I commend this bill to the chamber.

Debate adjourned.