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Wednesday, 9 May 1984
Page: 1842


Senator ZAKHAROV(4.25) —I draw attention to three main areas in the Australian Citizenship Amendment Bill-those which remove discrimination embedded in the present Act, those which reduce the range of subjective judgment, which is often in itself discriminatory, and those which remove anomalies. Many provisions of the Citizenship Act have become anachronistic, either because of a change in conditions in the source countries-what might be called the supply side-or in social attitudes in Australia. For example, Australians, hopefully, are more tolerant than they were 20 years ago about people who have difficulties with English. All of us in this chamber are migrants or descendants of migrants and we ought not to forget that. Most of us acquired citizenship by birth and tend to take it for granted, forgetting how much it may mean in emotional and/or practical terms to those seeking to become Australian citizens. These amendments will smooth the way for many of those applicants. On the other hand, we need to consider why an estimated 1.2 million eligible residents have not applied to become citizens. These amendments will remove some of the factors which have deterred those people from applying.

I would like to deal first with a clause of the Bill which will remove present discrimination. The existing legislation discriminates against those who do not have 'British citizen' status in that those who have that status may automatically gain the benefits of citizenship such as voting or eligibility for Public Service employment. This was intended as a transitional arrangement when we ceased to be labelled British subjects as well as Australians. All other Commonwealth countries, including the United Kingdom itself, have now dropped this concept. It is time Australia fully recognised its own identity. In line with this recognition that Australia has reached full adulthood, the Bill specifies a new pledge of Australian citizenship to be sworn or affirmed in future by those becoming Australian citizens. The previous form of words was ambiguous, I believe, in that it did not make clear that new citizens were renouncing allegiance to the country of origin but not renouncing their cultural heritage, language, and customs. They were not cutting themselves off from their roots in another country or another culture unless they so wished. The new pledge reads:

I . . . renounce any current citizenship and all allegiance to any State other than Australia. I pledge-

or, in the alternative form, I swear by Almighty God-

that I will faithfully uphold the Constitution, obey the laws of Australia and fulfil my duties as an Australian citizen.

There has been criticism in some quarters about the lack of mention of the Queen in this pledge and we have heard some more today. Those who wish to retain allegiance to the Queen in the wording of the pledge are ignoring the rights of those who find it confusing, or even hypocritical, to swear allegiance to a sovereign who lives in another country. I know migrants from countries which are members of the Commonwealth who have refrained from becoming citizens because they believed it would be hypocritical to make a pledge of loyalty to the Crown. Migrants from countries with no historical links with the United Kingdom must find it even more difficult to pledge allegiance to a sovereign who lives elsewhere. During the national consultations held in 1982 this view was widely expressed by a variety of people, including holders of Imperial awards. Far from being divisive, it is surely a unifying move that all new citizens should simply pledge allegiance to their country of adoption in language which is readily understood by all Australians.

Clause 4 of the Bill removes another discriminatory provision of the existing Act in that it gives equal importance to the father and mother of a child and equal rights to extra-marital children. Under the existing legislation the father is regarded in terms of citizenship as 'the responsible parent', the mother being responsible, by definition, only if the child's father is dead, she has sole custody of the child or the child is 'born out of wedlock'-another anachronism. This amendment removes any discrimination in granting citizenship on the basis of the sex or marital status of parents. 'Responsible parent' will now be defined in terms of the guardianship or custody of the child, as it is in other areas of Australian law.

The risk of discrimination cannot be completely removed while the Act retains room for considerable subjective judgment. This Bill reduces the areas where subjective judgment is applied when assessing applicants. Clause 11 gives fuller legislative definition of the requirement of good character by detailing the circumstances where an application will be refused for lack of it. It specifies the lower limits of good character while leaving some flexibility in that ministerial discretion is retained, for example, where it is difficult to compare sentences under differing overseas criminal codes. These amendments in the main give force to the practice which has been followed under the guidelines for some time but lessen the likelihood of an officials subjective judgments leading to anomalous decisions.

The language requirement-another area where subjective judgment plays a part- has, up to now, been discriminatory in that it demanded an 'adequate knowledge of English' when the ability to learn a language is dependent on many factors, only some of which are in the control of the learner. The degree of difficulty in learning a second language is related to such factors as the nature of the native language, the age of the learner and the educational level reached in the native language; thus it is easier for Germans or Italians to learn English, a language with common roots with their own, than it is, say, for Hungarians or Chinese, whose languages have little in common with English.

Teachers of language know that the ease of learning a language is, generally speaking, dependent on age. The younger one is, the easier it is to learn a second language. Those who have had minimal education in their own language, and thus whose language structure and vocabulary are simple, will find it difficult to become fluent in a second language. Add to this the difficulty of learning a new language when, for example, you work in a situation where little English is used, or perhaps little language is used, or you are housebound with young children and few contacts outside your own ethnic group. To meet this inbuilt discrimination the requirement of adequate English is replaced in this legislation by a basic knowledge of English, and this basic knowledge will be clearly defined.

Because it is recognised that it becomes harder to learn a language when a person is older, persons over 50 years of age are exempt from this provision, as are those with relevant physical or mental handicaps. It is very important that we encourage migrants to improve their English in order to make life easier and more pleasant for themselves, rather than rejecting applicants for citizenship because someone makes the relatively subjective judgment that their English is not adequate. The Bill allows, incidentally, for deferrals to allow applicants to obtain basic English skills. It should be remembered that the Human Rights Commission, in its 1982 report on the Australian Citizenship Act, queried the requirement of adequate English as possibly in contravention of the International Covenant on Civil and Political Rights, which prohibits discrimination on the basis of language. The Commission stated a belief that the requirement for a basic knowledge of English could be justified, however, under that Convention.

I mention particularly of two anomalies which are being removed by this Bill. Under the existing provisions for citizenship by descent it was possible to become an Australian citizen by descent even if one's legally Australian forebears had never set foot in Australia. For example, an Australian citizen who settled, say, in Europe could produce generations of descendants who could claim Australian citizenship without ever even visiting this country. Yet the Opposition, which did nothing to change this provision, is now objecting to the reduction of the qualifying period of residence for migrants from three years to two. This Bill adds the provision that, for a child born outside Australia to acquire Australian citizenship by descent, if the parent also acquired citizenship in that way, the parent must, in addition, have spent a total of at least two years in Australia. The previous situation would seem bizarre to most people. Indeed, a total two years stay seems little enough to justify handing on citizenship to one's children, but it is a step forward.

Proposed new section 10A provides for the acquisition of citizenship by adoption. This was previously a grey area, as the old legislation made no specific reference to adoption. From the time of the passage of this Bill any child adopted in this country by an Australian citizen or citizens will have Australian citizenship by right. It has been an interesting experience for me to have had for the last 30 years a surname which is obviously not Anglo-Saxon. I have noticed over those years a change in attitudes shown in behaviour towards me in places such as railway stations and hospital outpatients' clinics by people who know my name before they hear my voice. People generally are far less patronising and less overly suspicious in that situation than they were in the 1950s. I hope it does not take as long to overcome the prejudice we unhappily see directed at present towards migrants from Asian countries. I do not think it will. Not only are we now, I hope, a more open-minded society than we were in the 1940s and 1950s but we now have the advantage of multicultural television and the many programs which operate in schools throughout the community to bring about better communication and understanding among people of different cultural backgrounds. I believe that this Bill is an important part of that process and I commend it to the Senate.