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Monday, 14 September 2009
Page: 6475

Senator HANSON-YOUNG (9:34 PM) —I rise tonight to add the Greens contribution to the second reading debate on the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009. I indicate that, while we will be moving amendments that attempt to strengthen and remedy some of our concerns around the proposed changes, we will be supporting the improvements that we believe this bill makes to the overall citizenship test.

Essentially, this bill seeks to amend the Citizenship Act to exempt applicants who cannot complete the test because of mental or physical incapacity occasioned by torture or trauma. In an unrelated matter, it also seeks to tighten the eligibility criteria for persons under 18 by requiring them to be permanent residents before citizenship is granted. As Senator Fierravanti-Wells indicated, there are also amendments that have been circulated by the government relating to a reduced period of residency for persons in special circumstances, such as elite sportspeople, for eligibility to become Australian citizens—and I will have some questions for the minister about that particular amendment during the committee stage.

To begin with, I would like to put on the record that, while the Greens do not support the premise of the citizenship test—we did not support it when it was introduced in 2006 and we do not support the principle of it today—we do acknowledge that this particular bill moves us towards improvements that we think are admirable. We continue to hold concerns about the overall legislation, but we do recognise that it contains recommendations that have come from the Australian Citizenship Test Review Committee that have been implemented, and there are others we would like to see implemented if the minister were to take those on board. They have been recognised by key advocacy groups as positive steps in the right direction.

During the course of the inquiry we heard evidence from key advocacy and legal groups about their concerns with the limitations around the definition of torture and trauma and the removal of the ministerial discretion for minors under 18. In my additional comments to the committee’s report on this bill I outlined that some of the refugee and humanitarian entrants that may have suffered persecution within their countries of origin may fall short of the legal definition of torture.

I was also quite concerned when questioning the department over their definition of torture and trauma that it seems to be simply taken from the Macquarie Dictionary as opposed to being taken from the international law definition as laid out in the international convention against torture. I thought it would be very difficult to apply the Macquarie Dictionary definition in a practical sense as it does not seem to necessarily deal with all of those concerns of people who have suffered torture or trauma. There was very strong criticism in the committee process that this definition, while trying to be inclusive, was actually exclusive. We want to make sure that those people who are most vulnerable are not left out in the cold simply because we have chosen a definition without putting it into the context that it needs to be in order to help them rather than making the situation even harder for them.

The Greens are concerned that relying on such a specific definition as outlined may prevent the practical application of subsection 21(3) from being effective and, as such, we would be seeking to broaden this section. I have circulated some amendments in the chamber earlier today which relate to the types of movement we would like to see in this bill. After listening to Senator Fierravanti-Wells, I hope that she has a good look at our amendments as well and considers them, seeing that they have come directly from the recommendations made by the review committee. They said that the definition of torture and trauma, while admirable, is too exclusive and will not deal with all of their concerns in terms of wanting to ensure that we help make citizenship accessible for people currently unable to sit the citizenship test.

Similarly, we hold concerns that mental or physical incapacity as a result of suffering from torture or trauma outside Australia is too prescriptive, particularly when we look at the issues facing people such as young women who have been trafficked to Australia. Of course, if you are somebody who has been brought to Australia as part of the sex trade then you are not necessarily just relating to the torture and trauma you have had in your homeland but also the torture and trauma that you have suffered here in Australia. So we wanted to make sure that we are not being too exclusive in saying that it is only those people who suffered torture and trauma overseas, and as a result have a mental incapacity to sit the test, who could be considered. It seems to make sense that if we believe that somebody is not able to participate and sit the test because they have an incapacity or an inability to sit the test, it should not matter whether that torture and trauma was carried out in Australia or whether it was carried out overseas. We should accept that it creates an inability to sit the test per se.

The example of the trafficked women, I thought, was a good one in identifying that. But of course there are also people who had been detained for long periods of time in Australian detention centres who could rightly argue that they too have suffered various types of torture and trauma based on their experience, or at least they re-experienced those feelings of torture and trauma because of their long-term detention in Australian immigration detention centres. So I think that we can all acknowledge that if we believe that somebody needs to be given assistance and needs to be given some alternative pathway to sitting the test in order to apply for citizenship, then it should not matter whether their incapacity was created by torture and trauma experienced in Australia or experienced offshore.

While the department has assured my office that such persons are provided with all assistance throughout the test process, surely consideration must be given to expanding the definition to include these various groups of people. I think the simplest way of doing that would be to remove that ‘outside Australia’ category. If we take the view that the actual definition of torture and trauma, as I said, was put forward, admirably, by the government to help this group of vulnerable people, perhaps it has been too exclusive. Let us delete the reference to ‘outside Australia’ and come up with something that is a bit more inclusive and a bit more real in terms of the effects that we are talking about.

It is not appropriate to limit the definition of torture and trauma to those who have only suffered the psychological damage outside Australia. If we are going to apply the definition of torture and trauma that exists in the Macquarie Dictionary—and the reason I reference that is because that was the exact example that was given to me from the department representatives—I do not believe it is an appropriate definition to use when talking about identifying people’s ability or inability to sit the citizenship test. If we want to reference the effects and understand torture and trauma, we should be going with the definition in international law, and that would be in the international convention against torture. As I said, I will be moving amendments to remedy this situation and I do look forward to getting support both from the government and from the opposition to do that. It is not that we do not support the principle. It is about trying to get the right outcome.

Another area of concern that I wish to highlight in my contribution to this bill is about the removal of the ministerial discretion clause which, as it currently stands, effectively allows the minister to grant citizenship to a child or a young person under 18 who is not a resident. However under the pro-posed subsection 21(5) the government is proposing that a person under 18 years of age would now be required to be a permanent resident at the time of application for citizen-ship. This begs the question as to whether these decisions are being made necessarily in the best interest of the child or whether the best interest of the child is being taken into account when that decision is being made.

While I appreciate that ministerial discretion still exists under the Migration Act and that the proposed changes may affect only a small number of individuals, the Greens remain concerned that the given visa status of minors is often a result of factors beyond their control. This proposed change could potentially disadvantage a minor’s prospect of being an eligible Australian citizen or applying successfully for Australian citizenship, based on the fact that decisions have been made on their behalf which have not necessarily been made in their best interests. While I understand that this would relate only to a small number of people, the reason that we support the continuation of that ministerial discretion is that we believe the minister in those cases should make a decision based on what is best for that child and not necessarily have them caught out because of exclusive decisions that have been made by other people that may not necessarily have been in their best interests. During evidence presented to this inquiry on this bill, the Refugee and Immigration Legal Centre stated:

Australia’s obligations under the CRC to act in the best interests of the child must be the guiding and determining factor in deciding whether a child can be conferred Australian citizenship. Of particular relevance is the degree of the child’s connection to Australia, to the extent that it may amount to a form of citizenship, rather than their formal visa status.

I understand their concerns around the usage of that current allowance of ministerial discretion but, as I said, for the small amount of people that this does affect I would like the minister to have the ability to remedy a solution for these young people which is in their best interests and not something that is simply put in the too-hard basket.

I also acknowledge that perhaps there is a need to change the Migration Act to deal with some of these concerns. If it is not a citizenship issue, then perhaps it is a migration issue about their filing an application for permanent residency. I would like to see that tackled by the minister and the department before we start taking away the ability of young people to be able to access this particular pathway to citizenship.

While I have no doubt that the current Minister for Immigration and Citizenship does take the best interests of the child into account when dealing with visa resolutions, the Greens’ primary concern is that by removing the ministerial discretion clause we are removing any link to the Convention on the Rights of the Child, which could be misused in the future when dealing with these particular cases. It is for this reason that I foreshadow that the Greens will be moving to omit proposed section 21(5) and replace it with a clause that explicitly enshrines within the Citizenship Act that the primary consideration for the minister, on any decision made on the eligibility for Australian citizenship, should be the best interests of the child as per article 3 of the United Nations convention. I have listened to Senator Fierravanti-Wells speaking, and it sounds as though the opposition would not support this particular amendment, but I would still like to put it clearly to the chamber that we need to be ensuring that our ministers and our representatives of government have the ability to make decisions that are in the best interests of children and not simply put in the too-hard basket because those decisions may not suit everybody.

Concern surrounding the lack of alternative pathways to citizenship is also one of the Greens’ concerns. We were presented with these concerns during the committee process. Many of the witnesses suggested that this bill was an appropriate avenue for the government to implement these alternative pathways. There is already reference to assistance to undertake the citizenship test through the act, but there is no clear definition of what that assistance should be or how that pathway should look. Although I understand that the government is working on that, I believe that this would have been a good opportunity for the government to implement some of these alternative pathways while we are discussing the importance of ensuring there is a smooth transition from permanent residency to citizenship. If there are groups of people who need alternative pathways, let us talk about that. This would have been the appropriate place to do it. I am disappointed that we do not see the government’s plans which have been foreshadowed in various forums but which are not in this legislation. I look forward to the minister bringing them forward sooner rather than later.

Ideally, as I outlined in the Greens’ additional comments to this bill in the committee report, we would like to see some sort of review mechanism become part of the Commonwealth Ombudsman’s role so no applicant is unfairly disadvantaged for reasons beyond their control.

Debate interrupted.