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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 23, 2017-18 1 SEPTEMBER 2017

Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 Claire Petrie Law and Bills Digest Section

Henry Sherrell Social Policy Section

Contents

The Bills Digest at a glance ................................................... 3

Purpose of the Bill ............................................................... 4

History of the Bill ................................................................. 4

Background ......................................................................... 5

Committee consideration .................................................... 8

Legal and Constitutional Affairs Legislation Committee ......... 8

Senate Standing Committee for the Scrutiny of Bills .............. 8

Policy position of non-government parties/independents ..... 8

Position of major interest groups ......................................... 9

Financial implications ........................................................ 10

Statement of Compatibility with Human Rights .................. 10

Parliamentary Joint Committee on Human Rights ................ 10

Key issues and provisions................................................... 11

Automatic acquisition of citizenship by birth—new exceptions ............................................................................. 11

Quick guide .......................................................................... 11

Box 1: impact of proposed changes to the 10 year rule: three examples .................................................................... 14

Conferral—new requirements .............................................. 15

Quick guide .......................................................................... 15

General residence requirements ......................................... 15

Date introduced: 15 June 2017

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: On Proclamation or six months after Royal Assent, whichever occurs first.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

September 2017.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 2

Exemptions to general residence requirement— expanded Ministerial discretions ........................................ 18

Special residence requirement—expanded Ministerial discretions ........................................................................... 19

English language .................................................................. 20

Integration ........................................................................... 25

Citizenship test .................................................................... 26

Minors ................................................................................... 29

Citizenship by conferral ....................................................... 29

Good character requirement .............................................. 30

Australian Values Statement ................................................. 31

Pledge of allegiance ............................................................... 33

Who must make the pledge ................................................ 33

Delayed making of pledge ................................................... 33

Form of pledge .................................................................... 34

Retrospective application ...................................................... 34

Refusals and cancellations of approval ................................. 36

Expanded grounds to refuse citizenship approval .............. 36

New mandatory cancellation of approval ........................... 37

Revocation of citizenship ....................................................... 38

Revocation for fraud or misrepresentation without conviction ............................................................................ 39

Revocation of citizenship by descent—new Ministerial discretion ............................................................................. 42

Merits review of decisions ..................................................... 43

Excluding decisions from AAT review .................................. 43

Ministerial power to overrule AAT decisions ...................... 45

Disclosure of personal information ....................................... 47

Other provisions ................................................................ 48

Clarification of status of abandoned children ....................... 48

Adoption ................................................................................ 49

Power to make legislative instruments ................................. 49

Concluding comments ....................................................... 50

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The Bills Digest at a glance The Bill implements the Government’s announcement on 20 April 2017 regarding a series of changes to citizenship policy with the intention to ‘strengthen citizenship’.

In 2015, the Government announced Concetta Fierravanti-Wells and Phillip Ruddock would undertake community consultations on citizenship policy. The Government has relied heavily on this consultation process to inform the Bill. Following this process, the Government announced on 20 April 2017 an intention to change a number of citizenship policies, including a longer permanent residence requirement and a heightened English language requirement.

From the post-war ‘populate or perish’ period until the mid-2000s, Australian governments often revised citizenship policy in an attempt to expand the eligibility of migrants for citizenship. For example, over time, the period of permanent residence required before applying for citizenship fell from five years to two, and the English language requirement was reduced from adequate to basic.

The introduction of the citizenship test and lengthening of the residence period in 2007 marked a change in approach. The changes proposed by this Bill represent the continuation of a more restrictive approach to Australian citizenship policy, with the introduction of additional eligibility requirements and new Ministerial powers. The Prime Minister said he believes the changes will be ‘empowering for applicants’ and that ‘Australian citizenship is the foundation of our democracy’.1

The Bill introduces a formal English language test, with the requirement aspiring citizens must show competent English. In addition, four years of permanent residency will be required for aspiring citizens as well as an ability to demonstrate their integration into Australian society. However, what constitutes a successful demonstration of integration is unknown as the proposed delegated legislation regulating this new provision does not exist at this time. These changes, and a number of other significant policy changes, are profiled in this Bills Digest.

The effects of the Bill are difficult to forecast. The combined measures will likely reduce the number of future citizens compared to a continuation of the status quo. A number of organisations have argued instead of promoting social cohesion, the measures will undermine how aspiring citizens integrate into Australian society.

In addition, there is a clear shift away from setting out detailed eligibility criteria in the Act, with greater discretion given to the Minister to determine the details of eligibility through legislative instrument. This is combined with an increase in the number of ‘public interest’ discretions for the Minister, with the Bill creating new Ministerial powers to exclude personal decisions from merits review and override decisions of the Administrative Appeals Tribunal. The Minister is also given expanded powers to cancel citizenship approvals and to revoke citizenship. The expansion of discretion and greater use of delegated legislation promotes a degree of uncertainty and potential arbitrariness regarding the application and revocation of citizenship.

The changes to citizenship eligibility will apply to all applications lodged from 20 April 2017. A number of organisations noted this in their submissions, raising concerns about uncertainty for current applicants and suggesting it may undermine Parliamentary processes.

1. M Turnbull (Prime Minister) and P Dutton (Minister for Immigration and Border Protection), Joint press conference: strengthening the integrity of Australian citizenship, transcript, 20 April 2017.

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Purpose of the Bill The purpose of the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (the Bill) is to amend the Australian Citizenship Act 2007 (the Act) to change a number of requirements relating to eligibility for citizenship.

The Bill contains a number of new amendments regarding citizenship policy. For applicants seeking Australian citizenship by conferral, the Bill proposes:

• an increase in the English language requirement from basic to competent

• the extension of the general residency requirement to four years of permanent residence

• the requirement to demonstrate integration into the Australian community

• the replacement of the pledge of commitment with a proposed pledge of allegiance and

• changes to the eligibility provisions of the citizenship test.

The Government could use existing provisions to implement the last proposal. However, provisions in this Bill make this ability more explicit.

The Bill also contains amendments previously proposed by the Government in the Australian Citizenship and Other Legislation Amendment Bill 2014 which lapsed in 2016:

• the extension of good character requirements to minors

• the expansion of exceptions to automatic acquisition of citizenship by birth

• the expansion of mandatory circumstances in which citizenship approval must be refused, to capture modern forms of sentencing including home detention and residential programs

• an extension of the citizenship pledge requirement to most applicants for citizenship by descent, intercountry adoption and for resumption of citizenship (in addition to the existing requirement for citizenship by conferral)

• the creation of additional mandatory and discretionary Ministerial powers to cancel a citizenship approval prior to the pledge being made

• the expansion of the Minister’s power to revoke citizenship for fraud or misrepresentation, without the need for conviction

• the introduction of a broad Ministerial power to revoke citizenship granted on the basis of descent, in place of an existing operation of law provision

• the creation of Ministerial power to set aside certain Administrative Appeals Tribunal (AAT) decisions and

• the exclusion of personal decisions of the Minister from review by the AAT, when certified to have been made in the public interest.

There are a number of other minor definitional and consequential amendments.

History of the Bill The Australian Citizenship and Other Legislation Amendment Bill 2014 (2014 Bill) was introduced in late 2014. It passed through the House of Representatives but was not debated in the Senate, and lapsed at the prorogation of the 44th Parliament.2 As noted above, the 2014 Bill contained a number of provisions which are substantially replicated in the present Bill.

The 2014 Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee.3 The majority report of the Committee recommended that the Bill be passed, subject to recommendations for clarity

2. Parliament of Australia, ‘Australian Citizenship and Other Legislation Amendment Bill 2014 homepage’, Australian Parliament website; E Karlsen, Australian Citizenship and Other Legislation Amendment Bill 2014, Bills digest, 51, 2014-15, Parliamentary Library, Canberra, 2014. 3. Senate Standing Committee on Legal and Constitutional Affairs, ‘Australian Citizenship and Other Legislation Amendment Bill 2014’, Inquiry homepage.

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surrounding the proposed power to revoke citizenship for fraud or misrepresentation without conviction.4 Separate dissenting reports were issued by ALP Senators and the Australian Greens which both recommended that the Bill not be passed.5

Background The preamble to the Australian Citizenship Act 2007 says ‘Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity’.6

Australian citizenship confers a set of rights and obligations. An Australian citizen does not require a visa to live in Australia, is entitled and expected to vote in public elections, and can access a number of government support programs unavailable to permanent residents such as various Higher Education Loan Programs. Prime Minister Turnbull has suggested the foundation of our multicultural society is Australian citizenship.7

Australian citizenship in a global context

Australia has a relatively accessible citizenship framework compared with most Organisation for Economic Co-operation and Development (OECD) countries. The current residence period is generally shorter and the language requirement is weaker than comparable countries like Canada8 and the United Kingdom.9 As identified in a previous Parliamentary Library publication, Australia’s citizenship framework was changed many times from the end of World War II until the early 2000s to ‘make citizenship easier to acquire, reflecting the goal of successive governments to encourage settlers to take out citizenship more quickly’.10 However, the direction of recent legislation has been to restrict rather than expand access to Australian citizenship.

Beginning in 2007, when the residency requirement was increased from two to four years and with the introduction of a formal citizenship test, and continuing with this Bill, the past ten-year period represents a trend towards restriction.11 Some of this restriction is closely linked to national security concerns. This Bill has a broader focus relating to cultural and economic priorities.

The trend towards more restrictive citizenship policy frameworks is not unique to Australia. A number of other OECD countries have recently introduced or modified their tests and other requirements.12 Some point towards increased immigration flows through the 1990s and 2000s as the impetus for this policy shift.13 This may also be relevant in Australia, given higher rates of net migration in recent years. Various residency pathways of aspiring citizens today look very different compared to a generation ago as about half of all permanent residents are already in Australia on some type of temporary visa when their permanent residency visa is granted.14 In addition, the origin countries of Australia’s settler migrants today have shifted markedly in that same time period, with China and India now the two leading countries compared to more traditional origin countries like the United Kingdom and South Africa in years past.15 These changing migration trends mean the adjustment to policy proposed in this Bill will have an effect on more aspiring citizens than it may have had in the past, particularly in relation to extending the permanent residence period and increasing English proficiency.

4. Senate Legal and Constitutional Affairs Legislation Committee, Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], The Senate, Canberra, 1 December 2014. 5. Australian Labor Senators, ‘Dissenting report by Australian Labor Senators’, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], op. cit., pp. 43-45; Australian Greens,

‘Dissenting report of the Australian Greens’, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], op. cit., pp. 47-48. 6. Australian Citizenship Act 2007, preamble. 7. Turnbull and Dutton, Joint press conference, op. cit. 8. Government of Canada, ‘Find out if you’re eligible: citizenship’, Immigration and Citizenship, accessed 1 September 2017. 9. Government of the United Kingdom, ‘Prove your knowledge of English for citizenship and settling’, Gov.UK, accessed 1 September, 2017. 10. M Klapdor, M Coombs and C Bohm, Australian citizenship: a chronology of major developments in policy and law, Research paper series, 2009-10, Parliamentary Library, Canberra, 2009. 11. Australian Citizenship Act 2007, as enacted. 12. R Bauböck and C Joppke, eds, ‘How liberal are citizenship tests?’, EUI Working Papers, RSCAS 2010/41, May 2010, p. 1. 13. N Banulescu-Bogdan, ‘Shaping citizenship policies to strengthen immigrant integration’, Migration Policy Institute, Washington, D.C., 2 August 2012. 14. P Mares, Temporary migration and its implications for Australia, Papers on parliament series, 57, Australian Senate, Canberra, February 2012. 15. J Phillips and J Simon-Davies, Migration to Australia: a quick guide to the statistics, Research paper series, 2016-17, Parliamentary Library, Canberra, 2017.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 6

Policy development and consultation

This Bill has been introduced following a period of heightened activity for citizenship legislation.

In conjunction with the introduction of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 to Parliament, the Commonwealth Government conducted national consultation to ‘improve understanding of the privileges and responsibilities of Australian citizenship’.16 This consultation was led by the then Parliamentary Secretary for Social Services, Concetta Fierravanti-Wells, and Phillip Ruddock, in his role as Special Envoy for Citizenship and Community Engagement. The then Prime Minister, Tony Abbott, said at the time:

… we want to have a national conversation about the responsibilities, as well as the rights, of citizenship. About the duties as well as the privileges of citizenship. As you all know, every new citizen takes the citizenship pledge, increasingly at citizenship ceremonies all of us are invited to take the citizenship pledge. We pledge our commitment to Australia and its people, whose democratic beliefs we share, whose rights and liberties we expect [sic], whose laws we will uphold and obey—and these words must mean something. That's the point. The words of the citizenship pledge must mean something.

17

The consultation report, Australian Citizenship: your right, your responsibility, made 15 recommendations centred on the role of citizenship in promoting social integration, a distinct departure from the citizenship debates in the 44th Parliament focusing on security.18

On 20 April 2017, Prime Minister Turnbull and Immigration Minister Dutton announced their intention to introduce legislative changes to citizenship informed by the consultation report’s recommendations, as well as a number of amendments from the lapsed 2014 Bill.19 In a press conference, Peter Dutton outlined the Government’s rationale when he said:

You decide in your application, when you want to become an Australian citizen, that you will adopt Australian values. And we are very clear about saying that today in the announcement, because we are making no apologies for the fact that we do want people to be able to integrate. We want people to be able to send their kids to school, to take advantage of a great education system. We want people to be able to work if they're of working age and to make sure that if they have a capacity to work, they're contributing and not leading a life on welfare.

20

A discussion paper, Strengthening the Test for Australian Citizenship, was released with submissions due by 1 June 2017.21 Submissions made to this discussion paper have not been released publicly by the Department of Immigration and Border Protection (DIBP).22

This Bill is a combination of more recent policy proposals and a number of proposals from the lapsed 2014 Bill. This Bill will shape the ability of current and future permanent migrants to become Australian citizens, as well as embedding a significant increase in the scope of ministerial discretion within the Australian Citizenship Act. A number of key provisions introducing new requirements for the conferral of citizenship make it more difficult to become an Australian citizen. These include a longer residence period, a higher English proficiency requirement and an integration assessment.

Citizenship and national security

The nature of the Bill is somewhat contested in relation to whether and how national security is relevant to the proposed legislative changes. In his second reading speech, Minister Dutton said, ‘[T]his Bill reinforces the integrity of our citizenship programme. This will help maintain strong public support for migration and the value

16. P Ruddock and C Fierravanti-Wells (Parliamentary Secretary to the Minister for Social Services), Australian citizenship: your right, your responsibility: the national consultation on citizenship: final report, report prepared for the Australian Government, 2015, p. 6. 17. T Abbott (Prime Minister), P Dutton (Minister for Immigration and Border Protection), C Fierravanti-Wells (Parliamentary Secretary to the Minister for Social Services) and P Ruddock, Joint press conference: new measures to strengthen Australian citizenship, transcript,

26 May 2015. 18. P Ruddock and C Fierravanti-Wells, op. cit. (Parliamentary Secretary to the Minister for Social Services), Australian citizenship: your right, your responsibility: the national consultation on citizenship: final report, report prepared for the Australian Government, 2015. 19. Turnbull and P Dutton, Strengthening the integrity of Australian citizenship, media release, 20 April 2017. 20. Turnbull and Dutton, Joint press conference, op. cit. 21. Department of Immigration and Border Protection (DIBP), Strengthening the test for Australian citizenship, Discussion paper, Canberra,

April 2017.

22. The Refugee Council of Australia has collated submissions to this discussion paper on this web portal.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 7

of Australian citizenship in what is an increasingly challenging national security and complex global security situation’.23

In its submission to the Senate Inquiry, the Department of Immigration and Border Protection writes under the sub-heading ‘Addressing the national security concern-Australia’s response’, ‘the measures outlined in the Bill build on these earlier developments and reinforce the integrity of Australia’s citizenship programme’.24 By earlier developments, the Department is referring to the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The Department references the January 2015 joint Commonwealth-New South Wales review of the Martin Place siege, which recommended ‘Immigration should better assess the possible risks posed by individuals at the pre-visa, post-visa and pre-citizenship stages’.25

The Shadow Minister for Citizenship and Multicultural Australia, Tony Burke, refuted this characterisation in a media conference on 20 June 2017:

It only applies to people who are already permanent residents. By definition everybody who was affected by this is a person who Australia has already said should live here and live here permanently and if there is a national security problem for those people then why on earth does the government have them already living here permanently? 26

Peter Mares, an author about contemporary Australian migration policy, wrote about the proposed Bill:

Making Australia safe is a worthy aim, but seems to have little connection to the issue of citizenship. If recent migrants pose a security threat to Australia, they do so regardless of whether or not they obtain the status of citizen, since they are already resident in Australia. Delaying or denying migrants a pathway to citizenship cannot appreciably improve national security or in any way reduce terrorism. It may, however, have the opposite effect if it leads some migrants to feel that they are excluded, marginalised and unwanted.

27

Absent from much of the debate and commentary around the changes proposed by this Bill is an explicit principled articulation of the distinction, and rationale for the distinction, between permanent residency and citizenship. Professor Kim Rubenstein from the Australian National University said ‘the proposed changes … place too much weight on migration policy over broader questions about membership of a democratic nation-state’.28

Historical approaches to citizenship policy

Different rationales have been put forward in previous eras for changes in citizenship policy. For example, the then Minister for Immigration and Ethnic Affairs in the Fraser Government, Ian Macphee, said in 1982:

From the current review there has emerged general agreement on the following five matters: Firstly, it is desirable for the entire community to be aware of the benefits and the obligations attaching to citizenship; secondly, the meaning and value of citizenship should be enhanced; thirdly, there should be no discrimination within eligibility criteria for citizenship; fourthly, the provisions of the Citizenship Act should be as objective as possible and subjectivity should be minimised; and, fifthly, the administrative simplicity of the current Act should be preserved.

23. P Dutton (Minister for Immigration and Border Protection), ‘Second reading speech: Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017’, House of Representatives, Debates, 15 June 2017, p. 6613.

24. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017 [submission no. 453], p. 17.

25. Ibid., p. 18. 26. T Burke (Shadow Minister for Citizenship and Multicultural Australia), Labor’s opposition to the Government’s changes to citizenship legislation, transcript, 20 June 2017, p. 1. 27. P Mares, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017 [submission no. 239], pp. 7-8. 28. K Rubenstein, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], 23 July 2017, [submission

no. 404], p. 2.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 8

The amendments to the Act which I am suggesting for consideration are directed broadly at four goals: firstly, to remove all discriminatory aspects which give preferential treatment on the basis of national origin, sex or marital status; secondly, to eliminate anomalies and reduce subjectivity in criteria for citizenship; thirdly, to clarify and simplify administrative requirements in the application of the Act and remove provisions which are no longer relevant; and, fourthly, to provide for independent review of decisions to deny persons citizenship.

29

Committee consideration Legal and Constitutional Affairs Legislation Committee The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 4 September 2017. Details of the inquiry are at: Australian Citizenship Legislation Amendment) Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017.

Senate Standing Committee for the Scrutiny of Bills The Scrutiny of Bills Committee reported on the Bill in its Scrutiny Digest 7 of 2017.30 It identified concerns with a number of the Bill’s proposed measures, in particular:

• the conferral of broad discretionary powers on the Minister, including in relation to determining whether a person has integrated into the Australian community and revoking a person’s citizenship

• the broad delegation of legislative power, including providing the Minister with power to determine English language requirements via legislative instrument

• restrictions on merits review through excluding personal decisions of the Minister31 from AAT review and providing the Minister with the power to set aside AAT decisions

• restrictions on judicial review through the inclusion of a ‘no-duty-to-consider’ clause in relation to the Minister’s power to waive the general residence requirement

• the exemption of the Australian Values Statement from parliamentary disallowance

• the conferral of broad, general powers on the Minister to make legislative instruments and

• the retrospective application of a number of the amendments.32

Concerns raised in regards to specific provisions are discussed in further detail in the ‘key issues and provisions’ section below.

The Minister has responded to the concerns raised by the Committee.33 In particular, he has stated that the Government considers it appropriate that matters such as integration factors and English language requirements be set out in legislative instruments, and that these instruments will be subject to scrutiny and disallowance in Parliament.34

Policy position of non-government parties/independents The Australian Labor Party has signalled that it will oppose the Bill. In a press conference on 20 June 2017, the Shadow Minister for Citizenship and Multicultural Australia, Tony Burke, said ‘Labor caucus today made a unanimous decision to oppose the Governments changes to Australian citizenship’.35 The rationale stated was opposition to extending the period a person must be a permanent resident prior to becoming a citizen, and the

29. I MacPhee (Minister for Immigration and Ethnic Affairs), ‘Ministerial statements: Australian citizenship’, House of Representatives, Debates, 6 May 1982, p. 2356. 30. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 7, 2017, The Senate, 21 June 2017, p. 1. 31. A personal decision is one made by the Minister personally rather than by a delegate. 32. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit. 33. Senate Standing Committee for the Scrutiny of Bills, ‘Ministerial responses’, Scrutiny digest, 8, 2017, The Senate, 9 August 2017, pp. 1-6.

Minister for Immigration and Border Protection, Response to Scrutiny Digest No. 7 of 2017 from the Senate Scrutiny of Bills Committee: Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, 21 July 2017. 34. Ibid., pp. 1-2. 35. T Burke (Shadow Minister for Citizenship), Labor’s opposition to the Government’s changes to citizenship legislation, op. cit.

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proficiency level of the proposed English language test. Mr Burke also dismissed the argument the Bill was aimed at responding to national security concerns.

The Greens have also signalled opposition to the Bill, with their Immigration spokesperson, Nick McKim, describing the proposed changes as ‘anti-immigration’ and ‘destabilising’.36

On 22 June 2017, NXT spokesperson for Immigration and Citizenship, Stirling Griff, publicly raised concerns about the English proficiency requirement and new powers outlined in the Bill for the Minister.37 This followed reports of Nick Xenophon describing parts of the Bill as ‘unnecessarily harsh and unreasonable’.38

Prior to the introduction of the Bill in the House of Representatives, Pauline Hanson tweeted on 20 April 2017, ‘Good to see the PM is finally acting on the suggestions I made to him about the citizenship test. #auspol’ and included a link to a January 2017 clip advocating for a ‘tougher citizenship test’.39 The One Nation website outlines the party’s immigration policy, which is comparable to a number of key provisions of this Bill:

Australian “citizenship” is a valued privilege. One Nation would support a 5 year wait for new migrants to become Australian citizens. If they commit a criminal offence that carries with it a jail term of 1 year, they would automatically be denied citizenship and deported. To qualify they would have to have an understanding of the Australian Constitution and laws, pass a test in English and swear allegiance to the Commonwealth of Australia under our flag.

40

The Liberal Democratic Party’s policy on citizenship notes and is consistent with a number of key provisions:

Applicants for citizenship should have resided in Australia for at least 10 years, passed a basic citizenship test (in English, of standard high school quality), provide evidence of likely continued employment (or means to support themselves), links to the Australian community and no criminal record. 41

On 13 June 2017, Jacqui Lambie called the proposed citizenship changes a ‘good start’, however, this was before the Bill was tabled in the House of Representatives.42

It is not currently known whether Senators Hinch, Gichuhi or Bernardi support the intention or specific proposals within the Bill.

Position of major interest groups In addition to submissions provided to the Senate Legal and Constitutional Affairs Legislation Committee’s inquiry, a number of submissions to the Australian Government’s discussion paper are available, including from major interest groups. These submissions provide commentary on the policy proposed within the discussion paper, much of which mirrors the Bill. A detailed discussion of these policy positions can be found in this digest under the heading ‘key issues and provisions’.

The Australian Multicultural Council, a ministerially-appointed body providing advice to the Australian Government on multicultural affairs recommended the ‘Government demonstrates how the changes will advance faster integration of migrants into Australian society. At this point in time, Council feels this is not being sufficiently demonstrated’.43

36. N McKim (Greens Immigration spokesperson), Peter Dutton’s anti-immigration measures, media release, 15 June 2015. 37. S Griff (NXT Immigration spokesperson), quoted in G Hutchens, ‘Nick Xenophon Team says it’s “deeply worried” about Coalition’s citizenship bill’, The Guardian, (online edition), 22 June 2017. 38. N Xenophon (NXT Leader), quoted in J Kelly, ‘Xenophon wants Dutton to deal on “harsh” citizenship package’, The Australian, 21 June 2017. 39. P Hanson, ‘Good to see the PM is finally acting on the suggestions I made to him about the citizenship test. #auspol’, tweet, 20 April 2017,

https://twitter.com/paulinehansonoz/status/854821243429584896. 40. Pauline Hanson’s One Nation, ‘One Nation policies: immigration’, Pauline Hanson’s One Nation website, 2017. 41. Liberal Democrats, ‘Immigration policy’, Liberal Democrats website, 2017. 42. P Karvelas, ‘Interview with Jacqui Lambie’, RN Drive, Australian Broadcasting Corporation (ABC), 13 June 2017. 43. Australian Multicultural Council, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian

Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission no. 334], p. 1.

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The Law Council of Australia called the expansion of ministerial power to overrule citizenship decisions made by the Administrative Appeals Tribunal ‘a disproportionate response that weakens crucial checks and balances’.44

The Australian Human Rights Commission (AHRC) said ‘the amendments would increase individual Ministerial discretion and reduce independent merits review of administrative decision-making’, arguing this is ‘contrary to a primary focus of administrative law over the last 40 years’. The Commission also said the amendments ‘would make it more difficult’ for a number of groups to become Australian citizens and recommended the Bill not be passed in its current form.45

The Andrew and Renata Kaldor Centre for International Refugee Law and the Gilbert + Tobin Centre of Public Law at the University of New South Wales (the Kaldor Centre) raised ‘serious concerns’ about the Bill and called for the ‘government to justify why these changes put forward are necessary’. The Kaldor Centre’s submission to the Senate Inquiry noted the Bill ‘makes citizenship more difficult to obtain for some people’ and ‘significantly expands the discretionary powers of the Minister for Immigration and Border Protection and reduces their accountability’.46

Anthony Bergin, a senior analyst at the Australian Strategic Policy Institute and the Australian National University’s National Security College, wrote that ‘the government’s citizenship announcements are a positive step in a longer-term strategy to promote national values’.47 Mr Bergin links the citizenship changes with a more ‘muscular values-based approach to countering extremism’.48

The Refugee Council of Australia (RCOA) said the Bill would ‘disproportionately affect refugees, and it would fundamentally alter the nature of Australian citizenship. The proposals in the Bill would effectively convert citizenship policy from being a tool of inclusion to a tool of exclusion.’49

In relation to elements of the Bill previously proposed in 2014, a number of organisations provided detailed comment at the time. This is discussed under the heading ‘key issues and provisions’, however, it is important to note the positions of interest groups may have changed over the last three years.

Financial implications The Explanatory Memorandum notes that ‘the financial impact of these amendments is low’.50

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.51

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights reported on the Bill on 15 August 2017.52 It raised concerns with a number of the proposed measures, in particular:

• the changes to English language proficiency requirements

44. Law Council of Australia, Proposed new powers over AAT on citizenship decisions risks undermining vital checks and balances, media release, 15 June 2017. 45. Australian Human Rights Commission (AHRC), Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017

[Provisions], July 2017, [submission No. 447], p. 4. 46. The Andrew and Renata Kaldor Centre for International Refugee Law and the Gilbert + Tobin Centre of Public Law at the University of New South Wales (Kaldor Centre), Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian

Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission No. 378], pp. 1-2. 47. A Bergin, ‘We need a muscular defence of liberal values’, The Australian Financial Review, 26 April 2017. 48. Ibid.

49. Refugee Council of Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission No. 449], p. 1.

50. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, p. 7. 51. The Statement of Compatibility with Human Rights can be found at pages 70-88 of the Explanatory Memorandum. 52. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 8, 2017, Canberra, 15 August 2017, pp. 2-31.

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• the requirement for an applicant for citizenship by conferral to have ‘integrated into the Australian community’

• the power of the Minister to revoke citizenship due to fraud or misrepresentation without a conviction

• the extension of the good character requirement to include applicants under 18

• changes to provisions relating to the citizenship of a child found abandoned in Australia

• the proposed exemptions to automatic acquisition of citizenship for children born in Australia and ordinarily resident in the country for their first ten years of life

• the removal of merits review for personal decisions of the Minister made in the public interest and the power for the Minister to set aside decisions of the AAT and

• the extension of the bars to citizenship approval to people who are subject to a court order.

Further comments of the Committee are discussed in the key issues and provisions section below.

Key issues and provisions Automatic acquisition of citizenship by birth—new exceptions

Quick guide

The Bill makes a number of changes to automatic acquisition of Australian citizenship by inserting four additional exceptions to automatic acquisition of citizenship and removing automatic citizenship for a child born in Australia who has been ordinarily resident for ten years from birth:

• whose parent was entitled to diplomatic or consular privileges or immunities

• who was unlawfully in Australia at any stage

• who was outside Australia at any stage and did not hold a visa allowing them to enter or remain in Australia

• who was born to a parent who did not hold a substantive visa at the time of the child’s birth and was unlawful at any point in Australia before the birth of that child.

The latter two amendments will apply retrospectively to children who have not yet turned ten.

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What are the changes?

The Government is proposing new exceptions for children acquiring automatic citizenship by birth after ten years in Australia. These exceptions will remove automatic citizenship for children who were ever unlawful, left Australia without the right to return, or were in Australia for a temporary purpose only. The government is also proposing an exception based on the status of a child’s parents.

Section 12 of the Act currently provides for the automatic acquisition of citizenship where a person is born in Australia and:

• has a parent who is an Australian citizen, or permanent resident, at the time of the person’s birth or

• is ordinarily resident in Australia throughout the ten-year period following the person’s birth (known as the ‘10 year rule’).53

The only existing exception is for a person born to a parent who is an enemy alien, where the place of birth is under enemy occupation.54 Item 20 adds four further exceptions to the rule of automatic acquisition by birth, by specifying that the ten-year period of ordinary residence does not apply where, at any time during this period:

• a parent of the person was entitled to diplomatic or consular privileges or immunities (proposed subsection 12(3))

• the person was present in Australia as an unlawful non-citizen (proposed subsection 12(4))

• the person was outside Australia and at that time did not hold a visa permitting them to travel to, enter and remain in Australia (proposed subsection 12(5)) with an exception for children of New Zealand citizens or

• a parent of the person did not hold a substantive visa at the time of the person’s birth; had entered Australia on one or more occasions before the person’s birth; and at any time from the date of the parent’s last entry to Australia up until the date of birth, was present in Australia as an unlawful non-citizen (proposed subsection 12(7)).

The exceptions inserted by proposed subsections 12(3) (in relation to parents entitled to privileges and immunities) and 12(7) (in relation to parent’s status) are to apply to births that occur on or after commencement of the Bill.55

The exceptions inserted by proposed subsections 12(4) (in relation to unlawful non-citizens) and 12(5) (in relation to a period spent outside Australia without a visa) apply to children who turn ten years of age on or after the item’s commencement.56 This means they will cover children who have already been born, if the ten-year period has not yet concluded.

Rationale

The Government’s rationale concerns compliance with migration law. The Explanatory Memorandum outlines how the changes are seeking to prevent ‘anchor’ children from accessing future permanent residence by ‘encouraging the use of lawful pathways to migration and citizenship’.57 The Statement of Compatibility with Human Rights for this Bill states:

In effect, the ten year rule provides Australian citizenship to children who were born in Australia, have spent their formative years here and have their established home here, regardless of their visa status.

The ten-year rule has the practical effect of encouraging some temporary residents and unlawful non-citizens to have children in Australia and to keep their child onshore until at least their tenth birthday, whether lawfully or

53. Australian Citizenship Act 2007, subsection 12(1). 54. Ibid., subsection 12(2). 55. Item 135(1) and (4). 56. Item 135(2). 57. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and

Other Measures) Bill 2017, op. cit., p. 13.

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unlawfully. These parents would then expect that their children would obtain Australian citizenship and provide an anchor for family migration and/or justification for a ministerial intervention request under the Migration Act. 58

The Government’s rationale seeks to overturn part of the original intention of paragraph 12(1)(b). In their submission, Estrin Saul Lawyers notes that during the Parliamentary debate on the Australian Citizenship Amendment Bill 1986 that introduced this provision, Senator Coates specifically referenced the 10 year rule, saying:

… or if the child's parents are visitors or illegally in Australia but that child has been here for 10 years, it would acquire Australian citizenship automatically. So if it has grown up for that period in Australia it will be treated as an Australian. 59

In 2014, DIBP provided evidence that an average of 400 children per year apply for citizenship under the ‘10 year rule’.60 The Department did not put forward what proportion of these applicants would have failed under the new provisions. These amendments were previously proposed in the Australian Citizenship and Other Legislation Amendment Bill 2014. This Bill lapsed at the prorogation of the 44th Parliament.61

Possible implications

The transformation of Australia’s migration framework from one based on permanent residency to one where temporary migration plays a much larger role has ongoing implications for the 10 year rule. For example in the 2016 Census, there were 86,887 people who were born in Australia and not Australian citizens. This was an increase of 119 per cent compared to the 2006 Census. Seventy per cent of these people in 2016 were aged under 10 years old.62

As children of temporary migrants are not entitled to citizenship, and with a growing population of temporary migrants in Australia, it is likely these provisions in the Act will be used more frequently in the future than they are today. This can be seen in the growing number of Australian-born non-citizens. A larger, growing population of long-term temporary migrants will likely also lead to a larger population of non-citizen Australian born children who at some stage were present in Australia as an unlawful non-citizen, either intentionally or unintentionally. The proposed amendments will prevent these children from obtaining citizenship by automatic acquisition. Unlike other parts of the Bill, for example under the proposed general residence requirements (see proposed subsection 22(4AA) of the Act at item 63 of the Bill), there is no ministerial discretion to allow citizenship in cases of administrative error, for example where a bridging visa was not granted.

In addition to unlawful non-citizen children of temporary migrants, as a result of proposed subsection 12(7), children born to irregular maritime arrivals in Australia will become ineligible for citizenship via the ten year rule if they were born when their parents were waiting for a decision on their asylum application and were at any time considered an ‘unlawful non-citizen’. This will apply even if a protection visa is successfully granted. This amendment will make an applicant’s citizenship eligibility contingent on the status of their parent(s) at the time of the applicant’s birth, rather than at the time of the citizenship application.

58. Ibid., p. 75. 59. J Coates (Senator for Tasmania), quoted in Estrin and Saul Lawyers, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission No. 456], p. 3.

60. DIBP, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], 6 November 2014, [submission no. 3], p. 13. 61. Parliament of Australia, ‘Australian Citizenship and Other Legislation Amendment Bill 2014 homepage’, op. cit.; E Karlsen, Australian Citizenship and Other Legislation Amendment Bill 2014, op. cit. 62. Australian Bureau of Statistics, Census 2016, TableBuilder, accessed 1 September 2017.

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Box 1: impact of proposed changes to the 10 year rule: three examples A child is born after the commencement of the Bill to a parent who holds a temporary protection visa at the time of the birth. She remains in Australia for 10 years as an ordinary resident without her parent becoming a permanent resident. This child is entitled to automatic acquisition of Australian citizenship under the proposed amendments, as she satisfies paragraph 12(1)(b) and is not subject to any of the proposed exceptions.

A child is born after the commencement of the Bill to a parent who holds a bridging visa E, having arrived in Australia as an unlawful non-citizen. At the time of her birth, her parent was waiting for a decision on a temporary protection visa application. After the birth, the application is successful. The child remains in Australia for 10 years as an ordinary resident without her parent becoming a permanent resident. This child is not entitled to automatic acquisition of Australian citizenship due to proposed paragraph 12(7)(a), as her parent did not hold a substantive visa at the time of her birth.

A child was born in 2009 to a parent who held a Temporary Skilled (Work) (subclass 457) visa. Due to an administrative error, the child becomes an unlawful non-citizen in Australia for a period of seven days during his parent’s visa renewal process. The error is corrected and the visa application is successful. The child remains in Australia for 10 years as an ordinary resident on a series of subclass 457 visas (or equivalent). This child is not entitled to automatic acquisition of Australian citizenship due to proposed subsection 12(4), as he was an unlawful non-citizen at any time during the 10-year period.

These changes were included in the 2014 Bill in the same form.

A number of submissions to the Senate Inquiry to the 2014 Bill expressed concern about the adverse effect these amendments may have on children who had spent their formative years in Australia. Professor Kim Rubenstein, from the Australian National University College of Law, wrote:

I am concerned that all these exceptions undermine the purpose of s 12(1)(b). The policy underpinning s 12(1)(b) is to include as automatic citizens children born in Australia who do not satisfy 12(1)(a) but who are identified as citizens due to developing a significant connection to Australia through residence in the first 10 years of their life. Before 1986 all children born in Australia were Australian citizens by birth… Those first ten formative years are crucial and the amendment proposed undermines the significance of those significant years as an expression and acceptance of membership through residence, regardless of one’s formal visa status.

63

The Australian Human Rights Commission submitted the 2014 Bill would ‘discriminate’ based ‘solely on the initial immigration status of their parents’.64 Associate Professor Alexander Reilly (Adelaide University, Public Law and Policy Research Unit) said of the 2014 Bill ‘[children’s] immigration status, or that of their parents, is irrelevant to the depth of their connection to Australia’.65 In relation to the current Bill, Professor Rubenstein told Fairfax media, ‘It's a very, very spurious type of motivation in my view. It smacks of developing citizenship policy purely as migration policy’.66

UNICEF Australia argues ‘the proposed changes to the ‘ten-year rule’ will disproportionately affect the children of asylum seekers who arrived in Australia irregularly. The proposed amendments will deprive citizenship solely on the basis of parent’s immigration status which is potentially inconsistent with Article 2 of the CRC [Convention of the Rights of the Child]’.67

63. K Rubenstein (Australian National University), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], 6 November 2014, [submission no. 2], p. 2. 64. AHRC, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], 6 November 2014, [submission no. 4], p. 13. 65. A Reilly (University of Adelaide), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian

Citizenship and Other Legislation Amendment Bill 2014 [Provisions], [submission no. 6], p. 3. 66. K Rubenstein, quoted in M Koziol, ‘Dumped Abbott-era changes resurface in Turnbull government’s citizenship bill’, The Sydney Morning Herald, June 18 2017. 67. UNICEF Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship

Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission No. 455], p. 4. Article 2(2) of the CRC provides that ‘States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's

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Estrin Saul Lawyers contend ‘the intended purpose of the rule has always been to ensure that all ten-year-old Australian-born children are afforded the full and unqualified protection of Australia’s citizenship laws— irrespective of their or their parents’ immigration status’.68 They argue ‘unlawful Australian-born children needed the protection of the “ten year rule” more than any others, not just because of their unique vulnerability as unlawful children, but because the Australian Government has long recognised that a ten-year-old child should not be penalised for the immigration choices of their parents’.69

The Australian Human Rights Commission raised the prospect of retrospective effects for proposed subsection 12(4), as it ‘applies to children who have already been born in Australia, but who have not yet turned 10 years old, if they were unlawful non-citizens for any period of time, however brief’.70 The Scrutiny of Bills Committee has also raised concerns about the retrospectivity:

The practical effect of these subitems is that a child who may be expecting to acquire citizenship on the basis of the existing provisions will not be able to do so, even in circumstances where they are due to acquire citizenship very soon after the commencement of the provisions. 71

Conferral—new requirements

Quick guide

The Bill makes significant changes to the general eligibility requirements for citizenship by conferral. It:

• amends the general residence requirement to extend the time a person must have been present in Australia as a permanent resident from 12 months to four years

• changes the English language requirement to require a person have ‘competent’ English, as defined by the Minister under legislative instrument

• inserts a requirement that an applicant has integrated into the Australian community

• inserts a requirement that an applicant has adequate knowledge of Australia’s values.

The Bill also expands the Minister’s discretion in relation to the circumstances in which the general residence or special residence requirements may be waived.

General residence requirements What are the changes?

The Government is proposing to extend the time an aspiring citizen must hold a permanent visa from 12 months to four years. Any time spent by aspiring citizens on temporary visas, for example work or study related, will no longer satisfy the general residence requirement. For aspiring citizens who arrive in Australia on a permanent visa, this will have no effect.

To be eligible for citizenship by conferral, a person must generally satisfy the general residence requirements, or if special circumstances apply, satisfy the special residence or defence service requirement at the time of making the application.72 The general residence requirement is set out under section 22, and currently requires a person to have been:

• lawfully present in Australia for four years immediately prior to the application date and

parents, legal guardians, or family members’. [emphasis added] Article 7(1) of the CRC may also be relevant in the context of these changes as it provides that that a child shall have the right to acquire a nationality. See: Convention on the Rights of the Child, done in New York 20 November 1989, [1991] ATS 4 (entered into force for Australia 16 January 1991). 68. Estrin Saul Lawyers, op. cit., p. 3. 69. Ibid.

70. AHRC, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 23. 71. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., pp. 16-17. 72. Australian Citizenship Act, paragraph 21(2)(c).

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• a permanent resident for 12 months immediately preceding the application date.73

The Bill amends this requirement so that a person must be present in Australia as a permanent resident for four years (referred to as their residency period) immediately prior to the application date.74 The person must not have been present as an unlawful non-citizen at any time during this period.75

Item 57 inserts a new, simplified approach to dealing with overseas absences, which provides that where a person’s absence from Australia during the residency period totals no more than 365 days, and the person was a permanent resident during each period of absence, the person will be taken to have been present in Australia as a permanent resident during these absences.76 The Bill removes existing provisions which impose additional requirements for a person to have been absent for no more than 90 days in the twelve months immediately prior to the application date.77

Item 61 repeals an existing exemption to the general residence requirement which applies where a person was born in Australia or has previously been an Australian citizen.78

Rationale

In his second reading speech, Minister Dutton said ‘strengthening the residency requirement is intended to support integration and facilitate a more thorough evaluation of a person’s commitment to Australia, our values and adherence to our laws. It also brings Australia more in line with the general requirements of other nations’.79

Lengthening the residency requirement was a prominent theme in the 2015 consultation process. The rationale for extending the residency requirement in the consultation report was ‘that the person will use this time to become acquainted and comfortable with Australian society and its values and to appreciate the commitment they must make to become an Australian citizen’.80 How becoming ‘acquainted and comfortable with Australian society’ differs for prospective citizens depending on their residency status (a temporary or permanent residency) was not explained in the consultation report.

The Explanatory Memorandum states ‘extending the general residency period strengthens the integrity of the citizenship programme by providing more time to examine a person’s character as a permanent resident in Australia’.81

DIBP, under the subheading ‘the case for reform’, states that ‘[m]any temporary residents choose to become permanent residents to access Australian citizenship, however, temporary visa holders do not arrive in Australia with the stated intent to settle in Australia permanently. Those visa holders are temporary residents. There is no automatic pathway from a temporary visa to Australian citizenship’.82

Possible implications

As previously mentioned, the period of permanent residence required prior to making an application for citizenship has changed over time. Historically, it has generally been the case that the residence requirement for citizenship reflected the view ‘that the applicant should have spent sufficient time in Australia to develop an understanding of its institutions, parliamentary and legal systems, language, culture and traditions so that he or she can demonstrate a commitment to, and an association with, the nation’.83

73. Ibid., subsection 22(1). 74. Item 54, proposed paragraph 22(1)(a); item 56, proposed subsection 22(1A). 75. Item 54, proposed paragraph 22(1)(b). 76. Proposed subsection 22(1B). 77. Item 57 repeals existing subsections 22(1A) and (1B). 78. Australian Citizenship Act, subsection 22(2). 79. Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship

and Other Measures) Bill 2017’, op. cit., p. 6610. 80. Fierravanti-Wells and Ruddock, Australian citizenship: your right, your responsibility, op. cit., p. 19. 81. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and

Other Measures) Bill 2017, op. cit., p. 28. 82. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 41. 83. MacPhee (Minister for Immigration and Ethnic Affairs) ‘Australian citizenship’, op. cit., p. 2360.

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Shifting the residency period from four years as a lawful resident to four years of permanent residency will affect migrants who arrive in Australia on temporary visas and seek to apply for Australian citizenship after becoming a permanent resident. The Productivity Commission’s (PC) 2016 report, Australia’s Migrant Intake, found ‘around 100,000 people made the transition from a temporary to a permanent visa’ in the 2013-14 financial year. The most common pathway is moving from a 457 visa to an employer-sponsored permanent visa.84 From 1991- 2014, the average duration from this temporary visa to the permanent visa was 2.7 years. Looking at all multiple temporary visa pathways to permanent residency, the PC found an average duration of 6.4 years spent on temporary visas before being granted a permanent visa.85 Under the proposed amendments, any time spent on a temporary visa will not be considered in the residency period.

Tony Burke referenced the change to the residence requirement as a reason Labor opposes the Bill. He said:

At the moment you already have to wait four years before you're able to take on Australian citizenship. The four year wait is already there but many people start on temporary visas, sometimes on a series of temporary visas it can take much more than four years and the requirement is that at least one of those years has to be a year of permanent residence. At the end of that time Australia has had a good chance to have a look at the contribution that somebody is already making. How can it be good for Australia to be further delaying whether or not someone takes allegiance to this country?

86

A number of stakeholders have expressed concern with the change to the general residence requirement.

Peter Mares argues the change in the residence period would affect a large number of people, as ‘last year around 50,000 skilled migrants made the transition from a 457 visa to permanent residence’.87 He provided the example of a person on a 457 visa:

In the past, an employer could sponsor a 457 visa-holder for permanent residency after two years, enabling the migrant to potentially gain citizenship after a total of four years living and working in Australia. The government’s recent changes to temporary skilled migration, however, increase the threshold for acquiring permanent residency via employer sponsorship to three years - and so, in future, a temporary migrant will generally have to live and work in Australia for at least seven years before applying to become a citizen.

88

The Australian Human Rights Commission argues ‘the differential treatment based on visa class does not advance the Government’s stated objective of integrating aspiring citizens into the Australian community’.89

In its submission to the Senate Inquiry, the Federation of Ethnic Communities’ Councils Australia (FECCA) said the change will ‘have a detrimental effect on community harmony, social cohesion and weaken the capacity of migrants to be employed and integrated into Australia society’.90 FECCA noted the potential for this change to impact the ability of the Commonwealth Government to recruit from diverse backgrounds.

A large number of individuals submitted to the Senate Inquiry arguing how the proposed changes would negatively affect their personal attempt to gain Australian citizenship. Many claimed this was unfair and retrospective.91

A number of individual submissions proposed the concept of a transition period for people who already held a permanent visa.92 A transition period occurred in 2007, when the Australian Government extended the

84. Productivity Commission (PC), Migrant intake into Australia, Inquiry report, 77, PC, Canberra, 13 April 2016, p. 416. 85. Ibid., p. 418. 86. Burke, Labor’s opposition to the Government’s changes to citizenship legislation, op. cit. 87. P Mares, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 4. 88. Ibid.

89. AHRC, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 6. 90. Federation of Ethnic Communities’ Council Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill

2017 [Provisions], July 2017, [submission No. 410], p. 3. 91. See Submissions 77 and 253, Submissions to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions],

July 2017.

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residence period from two years to four years. The Australian Citizenship (Transitionals and Consequentials) Act 2007 allowed permanent residents at the time of commencement to apply for citizenship by conferral under previous residence criteria.93

Box 2: impact of proposed changes to residence period: three examples

A person is granted a permanent residency visa and arrives in Australia on 15 April 2013. He met the general residency requirement on 15 April 2017. He did not submit an application for citizenship prior to 20 April 2017. He will still be entitled to citizenship by conferral, as he meets the requirements under the amended section 22.

A person is granted a permanent residency visa on 15 April 2016. She previously held an international student visa from February 2013. This person met the general residence requirement on 15 April 2017 and had she submitted an application prior to 20 April 2017, she would have met the general residence requirement. However, she did not submit an application. She is not entitled to citizenship by conferral due to proposed paragraph 22(1)(a), as she has not held a permanent residency visa for four years.

A person is granted a permanent residency visa on 30 April 2016, after having lived in Australia for three years. He did not meet the general residence requirement at any stage before 20 April 2017 and was planning to submit an application for citizenship on 1 May 2017, after meeting the general residency requirement. He is not entitled to citizenship by conferral due to proposed paragraph 22(1)(a), as he has not held permanent residency visa for four years.

Exemptions to general residence requirement—expanded Ministerial discretions The Act presently provides the Minister with discretion to disregard periods in which a person did not fulfil particular aspects of the general residence requirements in the case of an administrative error;94 in certain circumstances in which a person is confined in a prison or psychiatric institution;95 where the Minister is satisfied that the person will otherwise suffer significant hardship or disadvantage;96 in the case of a spouse or de facto partner (or surviving spouse or de facto partner) of an Australian citizen;97 or where a person is in an interdependent relationship with an Australian citizen.98

With one exception the Bill preserves these grounds of Ministerial discretion. However, it also expands the scope of this discretion in three ways. Firstly, item 62 inserts proposed subsections 22(3) and (4), which give the Minister the power to make a legislative instrument determining circumstances in which a person is to be treated as not present in Australia as an unlawful non-citizen for the purposes of the general residence requirement.

Secondly, the Bill provides the Minister with discretion to exempt certain classes of New Zealand citizens from the new residence requirements under section 22. Item 67 inserts proposed subsections 22(11) and (12) which preserve the existing general residence requirements under section 22 for New Zealand citizens who fall within a class determined by the Minister by legislative instrument. The effect of this would be to allow certain New Zealand citizens to qualify for citizenship by meeting the current requirement of one year of permanent residency (and four years of total residence), even if they apply after the Bill’s proposed changes have taken effect. The Explanatory Memorandum provides:

… this arrangement for New Zealand citizens is a reflection of the agreement made by the Prime Ministers of Australia and New Zealand in 2016 to enable New Zealanders living in Australia to progress to permanent residence and, should they meet the requirements, citizenship.

92. See Submission 33, Submission 79, Submission 88, Submissions to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017.

93. Australian Citizenship (Transitionals and Consequentials) Act 2007, Schedule 3, subclause 5B(1). 94. Australian Citizenship Act, subsections 22(4A) and (5). 95. Ibid., subsections 22(1C) and (5A). 96. Ibid., subsection 22(6). 97. Ibid., subsections 22(9) and (10). 98. Ibid., subsection 22(11).

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The new visa pathway that resulted from this agreement, the New Zealand stream of the Subclass 189 Skilled- Independent visa, commences on 1 July 2017 and is open to New Zealand citizens who have shown a commitment and continuous contribution to Australia. The instrument made under new subsection 22(12) will specify one or more classes of New Zealand citizens who hold this visa as people to whom the old rules apply.

99

Thirdly, item 68 inserts proposed section 22AA which confers a broad discretion on the Minister to make a written determination waiving the general residence requirement completely in relation to a person, if satisfied that either:

• an administrative error on or on behalf of the Commonwealth caused the person to believe themselves to be an Australian citizen, and contributed to the person not being able to satisfy the general residence requirement or

• it is in the public interest for the Minister to do so.

This is a personal, non-compellable and non-delegable power of the Minister and the determination is not a legislative instrument—this means that it cannot be disallowed by Parliament.100 Proposed subsection 22AA(5) provides that if a person becomes an Australian citizen in circumstances where the Minister exercised this discretionary power, the Minister must table in each House of Parliament a statement of this, providing reasons for exercising the power. The statement must not include the applicant’s name.101

Removal of discretionary exemption—person in an interdependent relationship

The Bill removes the discretionary power which currently exists in relation to a permanent visa holder who is outside Australia, and in an interdependent relationship with an Australian citizen.102 Although the Explanatory Memorandum states that the substance of this provision is ‘replicated elsewhere’, there is no express reference to interdependent relationships elsewhere in the Bill, and no reason is provided for the repeal.103 The Minister’s public interest discretion under proposed subsection 22AA may, in some cases, be sufficiently broad to capture such a situation. However, an applicant would need to satisfy the Minister that it is in the public interest to waive the general residence requirement.

Amendment of discretionary exemption—spouse or de facto partner

Item 67 makes a small change to the grounds on which Ministerial discretion may be exercised in relation to a spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen. Presently, the discretion may be exercised to effectively waive the residence requirements for such a person who was a permanent resident but not present in Australia during the relevant period, but whom the Minister is satisfied had a close and continuing association with Australia throughout the period.104 Proposed paragraph 22(9)(e) provides an additional requirement that during the person’s four-year residency period, they must have been present in Australia for at least 365 days.

Special residence requirement—expanded Ministerial discretions A person may satisfy the less onerous special residence requirement in place of the general requirement under section 22, in circumstances where:

• the person needs to be an Australian citizen to engage in activities of benefit to Australia, and is supported by an organisation specified under legislative instrument (currently, any Commonwealth department or agency, the Australian Olympic Committee, Australian Paralympic Committee, Tennis Australia and Cricket Australia)105 or

99. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 31. 100. Item 68, proposed subsections 22AA(3), (7). 101. Item 68, proposed subsection 22AA(6). 102. Item 67 repeals subsection 22(11) which currently contains this ground of exemption. 103. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and

Other Measures) Bill 2017, op. cit., pp. 36-37. 104. Australian Citizenship Act, subsection 22(9). 105. Ibid., section 22A; ‘IMMI 13/056—Specification under section 22C—Special Residence Requirement: June 2013’.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 20

• the person is engaged in work of kind specified by legislative instrument, which requires them to regularly travel outside of Australia.106

The Bill does not significantly alter the existing provisions in relation to the special residence requirement. However, it expands the Minister’s discretionary power to treat a certain period as one in which a person’s presence in Australia was not unlawful.107 Items 79 and 80 insert proposed subsections 22C(2A) and 22C(4), respectively, which provide that the Minister may make a legislative instrument determining the circumstances in which this discretion may be exercised.

English language What are the changes?

The Government is proposing the introduction of a formal English language test, together with an increased proficiency threshold, for aspiring citizens. This is a major change to the conferral of citizenship as currently there is no specific language test. Instead, applicants are required to show basic understanding of English by passing the citizenship test.

To meet the general eligibility requirements for citizenship by conferral, an applicant must currently possess a basic knowledge of the English language.108 Subsection 21(2A) provides that this requirement will be taken to be satisfied by successful completion of the citizenship test. Proving a basic knowledge of English does not require a formal language proficiency assessment, such as a language test or exam.

Item 41 amends this requirement to provide that a person must have competent English. The Minister may make a legislative instrument determining both the circumstances in which a person has competent English, and the means by which this may be established.109 This reverses an earlier easing of English language proficiency in 1984, when the requirement was reduced from adequate to basic.110

While competent English is not defined in the Bill, Minister Dutton has made several references to what he considers competent English. In his press conference announcing the changes on 20 April 2017, he said:

There's a significant change in relation to the English language requirement which at the moment is basic. We increase that to IELTS Level 6 equivalent, so that is at a competent English language proficiency level and I think there would be wide support for that as well. 111

‘IELTS Level 6’ is a reference to a well-known language testing system called the ‘International English Language Testing System’. Level 6 is in reference to a specific band score, defined by the IELTS organisation as:

The test taker has an effective command of the language despite some inaccuracies, inappropriate usage and misunderstandings. They can use and understand fairly complex language, particularly in familiar situations. 112

The increase from basic to competent English is not made along a consistent scale. As above, basic English is satisfied by successfully completing the citizenship test. Competent English will be satisfied by completing a formal English language test to a specified level. These are distinct measures of language proficiency. Minister Dutton indicated in his second reading speech that each of listening, speaking, reading and writing will be tested to determine competent English.113 Currently, there is no written, listening or spoken component to determine basic English.

106. Ibid., section 22B. 107. Items 73 and 78 insert proposed subsections 22A(5) (in relation to the ‘engaging in activities of benefit to Australia’ ground) and 22B(5) (in relation to the ‘overseas work’ ground) respectively, to provide for this discretion. 108. Australian Citizenship Act, paragraph 21(2)(e). 109. Proposed paragraphs 21(9)(a), (b) and (c), inserted by item 53. A definition of competent English is inserted into section 3 by item 8, but this

refers to the circumstances determined by a legislative instrument under proposed paragraph 21(9)(a). 110. Klapdor, et al, Australian citizenship: a chronology of major developments in policy and law, op. cit., p. 11. 111. Turnbull and Dutton, Joint press conference, op. cit. 112. International English Language Testing System (IELTS), ‘How IELTS is scored’, IELTS website, 2017. 113. Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship

and Other Measures) Bill 2017’, op. cit., p. 6610.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 21

Rationale

In his press conference to announce the proposed citizenship changes, the Prime Minister commented specifically on the changes to English knowledge:

It is the single best thing any person coming to this country can do is learn English and that's why Peter's department put such a big effort into it. Well, that is going to be a requirement. You know what that will do? That will ensure that many people who had not learned English or had not been encouraged to learn English will do so. And so you know what we're doing? We're doing them a big favour.

114

Minister Dutton extended this argument in his second reading speech:

English language is essential for economic participation and social cohesion. The Productivity Commission in 2016 highlighted the importance of English language proficiency for integration and settlement outcomes. There is also strong public support to ensure that aspiring citizens are fully able to participate in Australian life, by speaking English, our national language.

115

The consultation process led by Senator Fierravanti-Wells and former Immigration Minister Ruddock found, ‘a strong theme of the consultation was the importance of English language to being a citizen and full integration in Australian society. There was support for raising the minimum standard of English required to sit the Citizenship Test from ‘basic’ to ‘adequate’’.116 In its submission to the Senate Inquiry, DIBP outlines a deterioration in self-reported English proficiency from the 2016 Census as part of the ‘case for reform’. DIBP also notes:

The current citizenship test was designed primarily to assess whether an applicant has an adequate knowledge of Australia and the responsibilities of Australian citizenship. By passing the test it is accepted that the applicant has at least a basic knowledge of English. However, it is not a formal assessment of the individual’s level of English ability, and it only tests reading comprehension—it does not test listening, speaking or writing skills.

117

Possible implications

There is general consensus among political parties that English language is important for aspiring citizens. The then Prime Minister, Julia Gillard said in 2012, ‘It is the meeting of those rights with the responsibilities that come from making your way in a new nation, including responsibilities to find work, to learn English , to uphold our rule of law, to be a full participant in our democracy and to recognise women as equals in our society’.118

Therefore, the contentious part of the Bill is the proposed proficiency required. The Opposition has argued as a consequence of this requirement, ‘[a] very large number of people who are born here will never reach the level of English in this test’.119 This concern was also raised by a number of researchers and stakeholders.

The ministerially-appointed Australian Multicultural Council wrote:

While recognising that the ability to communicate in English is clearly important to achieving integration, the Council is concerned that the language test being considered by Government will adopt a standard that is too high and above that needed to achieve the aim of integration. 120

This sentiment is supported by a number of other submissions. The University of Adelaide Public Law and Policy Research Unit (University of Adelaide) writes:

114. M Turnbull and P Dutton, Joint press conference, op. cit. 115. P Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017’, op. cit., p. 6611. 116. C Fierravanti-Wells and P Ruddock, Australian Citizenship: Your right, your responsibility, op. cit., p. 18. 117. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 58. 118. J Gillard (Prime Minister), ‘Answer to Question without notice: Multiculturalism’, [Questioner: E Husic], House of Representatives, Debates, 20 September 2012. 119. T Burke, Labor’s opposition to the Government’s changes to citizenship legislation, op. cit. 120. Australian Multicultural Council, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian

Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 2.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 22

We support the introduction of an English language test, but only if the test is used as a means to encourage and support migrants to learn English. The level of English language proficiency expected should be commensurate with the opportunities applicants have had to achieve that level of proficiency. 121

The University of Melbourne’s Language Testing Research Centre stated IELTS is unsuitable for ‘establishing readiness for citizenship’ while the proposed level required is ‘unreasonably high’. The Centre’s submission states the proposed level ‘may be beyond the reach of many Australian born citizens with low literacy backgrounds’. The Centre notes the limited research on native speaker performance on language tests shows ‘significant variability … with educational level being a predictor of success’.122

The Monash University’s School of Languages, Literatures, Cultures and Linguistics submitted that it was ‘deeply concerned’ at the proposed change to English proficiency. The School argues that there is a lack of clear evidence that language proficiency tests ‘build social cohesion in the ways the government seem to be hoping for’.123

In its submission, the Australian Human Rights Commission argues ‘many Australia-born citizens would not possess a written or spoken command of English equivalent to [the IELTS Level 6] standard’.124

Box 3: is IELTS 6 ‘university English’?

IELTS Level 6 has been referred to as ‘university level’ English by the Opposition. This reflects the fact that some Australian universities require international students to obtain an IELTS Level 6 in order to gain entrance to study.125 Some universities require a higher level, such as Sydney University, which requires an average of 6.5 with no part below 6.0.126 It is common for specific courses within universities to require higher levels, such as Law and Journalism degrees.

Minister Dutton has said ‘university English’ is a ‘red herring’ as there are two IELTS streams, an academic test and a general test. His media release on 21 June 2017 stated ‘contrary to Labor’s false claims, the IELTS Academic test is not required for migration or citizenship purposes’.127 As competent English is not defined in the Bill and will be prescribed by a legislative instrument authored by the Minister, this remains subject to further regulation.

The academic and general tests are the same test for listening and speaking with differing assessments for reading and writing. Discussing the difference between the general and academic tests, Associate Professor Catherine Elder, the president of the International Language Testing Association, described the two standards as ‘more or less the same’.128 Professor McNamara, a linguistics expert at Melbourne University, said ‘the tasks are different but the standard required is the same’.129

It is difficult to forecast how many aspiring Australian citizens will be ineligible due to the proposed English language requirements. The IELTS organisation provides a breakdown of average scores according to most

121. University of Adelaide’s Public Law and Policy Research Unit, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission No. 398], p. 7.

122. University of Melbourne Language Testing Research Centre, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission No. 312], pp. 3-6.

123. Monash University School of Languages, Literatures, Cultures and Linguistics, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission No. 29], p. 1.

124. AHRC, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 8. 125. For example, see La Trobe University, ‘English language requirements’, La Trobe University website, 2017 and Deakin University, ‘English language requirements’, Deakin University website, 2017. 126. Sydney University, ‘English language requirements’, Sydney University website, 2017. 127. P Dutton (Minister for Immigration and Border Protection), Labor’s citizenship smokescreen, media release, 21 June 2017. 128. C Elder, quoted in F Hunter, ‘It’s a different world now’, The Sunday Age, 25 June 2017, p. 5. 129. T McNamara, quoted in ABC Fact Check, ‘Fact check: Will the Government’s new citizenship test demand a university-level standard of

English?’, ABC News Online, 28 June 2017.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 23

common first language across their global testing locations.130 The table below shows the mean (average) IELTS score for people from a number of different language backgrounds.131

Language Listening Reading Writing Speaking Overall

English 7.1 6.7 6.7 7.4 7.0

Chinese* 6.2 6.1 5.7 5.8 6.0

Italian 6.1 6.0 5.7 6.3 6.1

Arabic 5.8 5.3 5.4 6.1 5.7

Vietnamese 6.1 5.9 5.8 5.9 6.0

*The IELTS website only provides information for ‘Chinese’ and does not break this down into other languages, such as Mandarin and Cantonese.

These scores do not show Australian test results and it is important to note that approximately 80 per cent of IELTS tests relate to education admission. However, the results imply a requirement of Level 6 and will likely have a considerable effect on aspiring citizens from non-English speaking countries. In particular, the scores for the written component demonstrate this could be a barrier to citizenship conferral.

The Government’s key argument is a higher English requirement will incentivise prospective citizens to improve their English. The Government has not provided evidence to support this. However, increasing the English requirement signals the importance the government places on English language acquisition by new migrants.

There are already a number of strong incentives for prospective citizens to learn English outside of citizenship requirements. In seminal research on the Australian labour market in relation to language proficiency and earnings, Professor Barry Chiswick and Professor Paul Miller show the economic incentives to improve English language include higher wages and employment outcomes.132

There may also be factors that preclude some migrants from ever reaching competent English. Writing in 2006, Chiswick and Miller found ‘it has been shown in numerous studies that proficiency is enhanced by a higher level of education and by migration while young’.133 Analysing longitudinal migration data from the late 1990s, they find education is a particularly strong variable, where ‘each additional year of education is the equivalent in impact on English skills to 10 fewer years of age at migration’.134

Given these findings, a higher language proficiency requirement will affect aspiring citizens differently. Migrants to Australia via the family and humanitarian visa categories will be disproportionally affected as they generally have lower existing English proficiency and fewer years of higher education, on average, compared to migrants arriving via the skilled categories.135

Previous legislative debates about citizenship have addressed English language proficiency. In 1982, then Immigration and Ethnic Affairs Minister, Ian Macphee, articulated why adequate proficiency was required:

The requirement that an applicant possess an adequate knowledge of English is a controversial issue but should not be so. The Government believes that a basic proficiency in English is necessary to fulfil the rights and responsibilities of citizenship. Included in these rights and responsibilities are jury service, the right to stand for elective office and the right to vote. It is surely incontestable that these rights can only be exercised and the responsibilities discharged when an effective knowledge of English is possessed.

It is evident that there are strong views in the community supporting the retention of English language as a requirement of citizenship. English is Australia's national language and therefore the essential language of

130. IELTS, ‘Test taker performance’, IELTS website, 2017. 131. Ibid. Note: the table above is extracted from a larger dataset to highlight languages commonly spoken in Australia. 132. B Chiswick and P Miller, ‘The Endogeneity between Language and Earnings: International Analyses’, Journal of Labor Economics, 13(2), April 1995, pp. 246-288, JSTOR database.

133. B Chiswick and P Miller, ‘Language Skills and immigrant adjustment’, in D Cobb-Clarke and S Khoo, eds, Public policy and immigrant settlement, Edward Elgar Publishing, Cheltenham, 2006, pp. 130-31. 134. Ibid. 135. ABS, Characteristics of recent migrants, op. cit.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 24

communication in our multicultural society. It is the language of our parliamentary and judicial institutions. To eliminate the English language as a requirement would result in significant numbers of non-English speaking citizens who would not be able to understand the proceedings of parliament or consider the diverse arguments which often occur regarding national and political issues presented via the English language media. Were this otherwise it could foster the growth of a 'second class citizenship' whose members remained isolated from the general Australian community. If it is accepted that the English language must be maintained as a requirement for citizenship, the issue then becomes the level of proficiency required.

136

Mr Macphee thus articulated how on this view, the language requirement was inextricably bound up in a sense of belonging. Notwithstanding the importance he placed on language proficiency, Mr Macphee did recognise ‘that beyond a certain age many persons find it difficult if not impossible to learn a new language’.137 At the time there was an exemption from the language requirement to persons 60 years of age and over.138 Mr Macphee thought the age of exemption should be lowered to 55 years and in cases of hardship, for persons who had ‘resided in Australia for 20 years or more and who, through time, have thus acquired a reasonable understanding of Australia and its institutions despite their lack of English, a further option would be to lower the minimum age for exemption to 50 years’.139

Two years later, under the Hawke Government, the language proficiency requirement was changed from adequate to basic.140

In his second reading speech introducing the citizenship test in 2007, the then Minister for Immigration and Citizenship, Kevin Andrews, said in relation to sitting the citizenship test, ‘the government recognises that there will be some people who do not and may never have the literacy skills required’.141

Box 3: international comparisons of language requirements to gain citizenship

A number of countries require aspiring citizens to pass a language assessment. These tests differ in their method and proficiency level required.

Canada’s citizenship language test requires applicants to pass a listening and speaking test, excluding reading and writing. The equivalent IELTS score is approximately 4.142

The United Kingdom143 and Germany144 use the same methodology, the Common European Framework for Reference, and require the same score of level B1. This is roughly equivalent to an IELTS score between 4 and 5. The Netherlands145 and Spain146 also use this methodology, with both countries requiring an A2, equivalent to an IELTS score of approximately 3.

In New Zealand, applicants must be able to ‘hold a basic conversation in English’, assessed by a New Zealand Immigration official.147

In the United States, applicants must read and write a sentence correctly. The ability to speak is determined by an officer of the U.S. Citizenship and Immigration Services.148

Professor Tim McNamara of Melbourne University told the ABC, ‘It is very likely that Australia has the most

136. MacPhee, ‘Australian citizenship’, op. cit. 137. Ibid. 138. Ibid. 139. Ibid. 140. Klapdor, et al, Australian citizenship: a chronology of major developments in policy and law, op. cit., p. 11. 141. K Andrews (Minister for Immigration and Citizenship), ‘Second reading speech: Australian Citizenship Amendment (Citizenship Testing) Bill

2007’, House of Representatives, Debates, 30 May 2007, p. 4. 142. Citizenship and Immigration Canada, ‘Language requirements when applying for citizenship’, Government of Canada, Citizenship website, 2 December 2016. 143. Gov.UK, ‘Prove your knowledge of English for citizenship and settling’, British Government, British Citizenship website, 2017. 144. Federal Office for Migration and Refugees, ‘The integration course certificate’, Germany Government integration website, 2 May 2013. 145. Immigration and Naturalisation Service, ‘Integration in the Netherlands’, Netherlands Government Integration website, 2017. 146. Citizens Advice Bureau Spain, ‘How to apply for Spanish nationality?’, Citizens Advice Bureau ACT, 2017. [Note the English language version of

the Ministry of Justice website for the Spanish Government does not have the relevant details for the citizenship language test.] 147. New Zealand Government, ‘Apply for NZ citizenship: language requirements’, New Zealand Government website, 5 April 2017. 148. United States Citizenship and Immigration Service, ‘Study material for the English test’, Department of Homeland Security, United States

Government website, 2017.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 25

stringent language testing for citizenship anywhere in the world’.149

Monash University’s School of Languages, Literature, Cultures and Linguistics submits the proposed level of IELTS 6 is ‘very much out of step with other language tests for citizenship internationally’.150

Integration What are the changes?

The Government is introducing an integration test, where aspiring citizens ‘will be required to demonstrate their integration into the Australian community in accordance with Australian values’.151 There is little additional information about what the integration test will consist of, or how it will be assessed.

Item 43 inserts a new requirement that applicants for citizenship by conferral have ‘integrated into the Australian community’.152 This is not defined within the Bill. The Minister may make a legislative instrument determining the matters to which the Minister may or must have regard in determining whether a person has integrated into the Australian community.153

The Explanatory Memorandum provides a number of examples as to what may constitute integration:

… the Minister may determine that regard may be had to, for example, a person’s employment status, study being undertaken by the person, the person’s involvement with community groups, the school participation of the person’s children, or, adversely, the person’s criminality or conduct that is inconsistent with the Australian values to which they committed throughout their application process.

154

This provision is a significant extension of ministerial discretion with regard to citizenship eligibility. As the examples outlined in the Explanatory Memorandum above demonstrate, the Minister may select any number of activities or tests applicants would be required to meet relating to any aspect of economic, social or civic life.

Rationale

The Prime Minister noted in his press conference announcing the changes:

… we need to ensure that our citizenship test enables applicants to demonstrate how they have integrated into and engaged with our Australian community, so that they're part of the community. They've lived here as a permanent resident for four years, they speak English, share our values, be integrated. Those are critically important elements.

155

In its submission to the Senate Inquiry, DIBP stated:

While Australia compares well against other countries on aggregated key integration measures (in particular, labour market participation, educational levels and proficiency in the host language) it does not currently test individual immigrants for integration. 156

No other information or evidence was provided under ‘the case for reform’ in relation to the proposed integration measures.

149. ABC Fact Check, ‘Fact check: will the Government’s new citizenship test demand a university-level standard of English?’, op. cit. 150. Monash University, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 2. 151. P Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship

and Other Measures) Bill 2017’, op. cit. 152. Proposed paragraph 21(2)(fa). 153. Proposed paragraph 21(9)(e) at item 53. 154. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and

Other Measures) Bill 2017, op. cit., p. 27. 155. M Turnbull and P Dutton, Joint press conference, op. cit. 156. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 72.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 26

Possible implications

It is difficult to describe possible implications when the content and requirements of the integration test are currently unknown.

The Australian Multicultural Council supports ‘the new requirement that an applicant must demonstrate their integration into the community, provided sensible guidelines and supports are developed to ensure the new requirements are not onerous to the point of becoming a deterrent’.157

The University of Adelaide contended the Minister should not be afforded ‘broad discretion to determine Australian values and to determine if a person has integrated into the Australian community’.158 The Jesuit Refugee Service argued this was a ‘subjective assessment of values and integration’ with the potential to exclude people from Australian citizenship.159

The Australian Human Rights Commission expressed in-principle support for the Government’s interest in ‘strengthening citizenship and promoting a more cohesive society. Australia’s multicultural society is only successful because immigrants and their descendants, over time, become full members of Australian society’.160 However, the Commission notes ‘it would be anomalous to hold naturalised citizens to a standard that is significantly more stringent than the standard expected of Australian born citizens (who are not tested on their civic knowledge or participation in society)’.161

The Commission also expressed concern about the lack of certainty on the integration proposals given they are retrospective and apply to any aspiring citizen from 20 April 2017.162

The Parliamentary Joint Committee on Human Rights queried whether the measure is compatible with the right to equality and non-discrimination, and sought the advice of the Minister as to whether the basis on which a person will be considered to have integrated into the Australian community could be made clear and defined in the legislation.163 It argued:

… without safeguards, it is possible that the minister could exercise this power in such a way as to have a disproportionate effect on people on the basis of disability, nationality, race or sex. There is nothing on the face of the legislation which appears to limit his or her discretion. 164

Citizenship test What are the changes?

The Government is proposing a number of changes to the citizenship test itself and increasing the emphasis on ‘Australian values’ within the test. An applicant for citizenship by conferral must currently demonstrate ‘an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’.165

Item 42 extends this requirement to include adequate knowledge of ‘Australia’s values’. This will be taken to be satisfied through the successful completion of the citizenship test.166 As with the integration requirement, the Bill does not define or provide examples of what is meant by Australian values.

157. Australian Multicultural Commission, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 3.

158. University of Adelaide, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 8. 159. Jesuit Refugee Social Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July

2017, [submission No. 387], p. 2. 160. AHRC, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 9. 161. Ibid. 162. Ibid. 163. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, op. cit., pp. 10-11. 164. Ibid., p. 11. 165. Australian Citizenship Act, paragraph 21(2)(f). 166. Ibid., subsection 21(2A).

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 27

The content of, and rules surrounding the citizenship test are contained in a written determination made by the Minister under section 23A of the Act. This is not a legislative instrument, and therefore cannot be disallowed by Parliament.167 The current determination was made on 24 March 2012 and sets out the eligibility criteria and rules for three forms of the test—a Standard Test; Assisted Test for those with low literacy skills or a physical or cognitive impairment; and a Course-Based Test for those who have failed the standard or assisted test (or combination of both) three or more times or have been assessed after one or two test failures as suitable for participation in the Course-Based test.168 There is currently no limit to the number of times a person may sit the Standard and Assisted Tests, provided that they have not commenced a Course-Based Test.169 A person may only undertake the Course-Based Test once for each application for citizenship, except in exceptional circumstances.170

The Course-Based Test is being removed. DIBP states:

The Government will remove the existing course-based test for applicants who have failed the standard test or assisted test three or more times. The purpose of the course-based test was to assist applicants with below ‘basic’ English, to understand the citizenship test. With the introduction of a new English language test, the course based test is no longer necessary.

171

Item 82 inserts proposed subsection 23A(3A) to provide that eligibility criteria for the citizenship test may relate (but is not limited) to the fact that a person has previously failed the test, not complied with the rules of conduct relating to the test, or was found to have cheated during the test. This amendment provides some clarity regarding the types of eligibility issues which may be dealt with under a section 23A determination, but it is not legally necessary—existing subsection 23A(3) provides the Minister with a broad discretion to set out the eligibility criteria for the test, except where it is inconsistent with the Act. The Minister already has the power, for example, to place limits on the number of times a person may take the citizenship test, or exclude a person from taking the test where they are found to have cheated on a previous attempt.

As the Minister for Immigration already has the power to change the questions in the citizenship test, as well as the eligibility criteria to sit the test, these provisions are not creating new executive powers.

Rationale

When announcing his intention to change citizenship policy, the Prime Minister said:

Why should the test simply be a checklist of civic questions, all very important, about the parliament and how many senators there are from each state. These are all important things to know, no doubt but fundamentally the values which bind us together are those ones of respect, the rule of law, commitment to freedom, democracy, these are the key elements in our Australian identity and our citizenship should reflect this.

172

The citizenship consultation report focused on the ‘credibility and validity’ of the test:

The credibility and validity of the Citizenship Test was raised during the course of the consultations. There is support for maintaining a test, but most viewed that a limit should be placed on how many times an individual can sit the test before their application is refused. Many suggested that a person should have to resubmit an application for citizenship following a series of failed attempts at the Test.

173

167. Ibid., subsection 23A(7). 168. ‘IMMI 11/088—Determination for the approval of a citizenship test’. Note that Attachment 2 (which sets out the questions and answers to the Standard and Assisted Tests) and Attachment 3 (which sets out the Course-Based Test assessment tasks and correct answers) are not publicly available.

169. Ibid., Part A, clauses 17 and 18; Part B, clauses 33 and 34. 170. Ibid., Part C, clause 48. A person who has commenced a Course-Based Test may not be able to sit a Standard or Assisted Test, suggesting that there may be circumstances in which a person who has failed the Course-Based Test cannot undertake another test for their current citizenship application.

171. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 69. 172. Turnbull and Dutton, Joint press conference, op. cit. 173. Fierravanti-Wells and Ruddock, Australian citizenship: your right, your responsibility, op. cit., p. 4.

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DIBP considers ‘the Government’s position is that the current citizenship test is out-of-date and only tests applicants’ basic understanding of Australian Government and society’.174

Possible implications

As the proposed subsections relate to future delegated legislation, the implications are unclear.

It is unclear how the nature of the proposed changes will differ from the status quo in practical effect. For example, content in the practice questions for the citizenship test already contains multiple references to concepts such as democracy and individual freedoms, as well as more functional aspects of Australia’s parliamentary system of government:

Which of these statements about government in Australia is correct?

a. The government does not allow some religions

b. Government in Australia is secular

c. Religious laws are passed by parliament

Which of these is an example of equality in Australia?

a. Everyone follows the same religion

b. Men and women have the same rights

c. Everyone belongs to the same political party. 175

These types of questions and content for the citizenship test, as well as what the Prime Minister referenced in his media conference, fall into the category of civic or institutional citizenship. Discourse on Australian citizenship has typically reflected civic institutionalism, for example with the Australian Citizenship Council’s report, ‘Australian Citizenship for a New Century’, which called for an ‘Australian Compact’ in 2001 built on seven civic values.176 Existing test preparatory materials also demonstrate this perspective. In this sense, the content of the Australian citizenship test reflects similar content in other Western liberal democracies. For example, Ines Michalowski found almost all countries correspond to the institutional perspective as opposed to approaches based on cultural or national identity.177

On citizenship eligibility, the Minister and the Explanatory Memorandum indicate a new policy will be introduced, preventing applicants from sitting the citizenship test an unlimited number of times. As above, this change could be introduced without the proposed changes to subsection 23A(3A). The Explanatory Memorandum argues the ability to sit the test an unlimited number of times, ‘reduce(s) the integrity of the testing arrangements’.178 In their media release on 20 April 2017, the Prime Minister and the Minister for Immigration state reforms will include, ‘limiting the number of times an applicant can fail the citizenship test to three’.179 The Brotherhood of St Laurence and Whittlesea Community Connections raised concerns in relation to the proposed policy of limiting access to the citizenship test after multiple failures. They note ‘this is inconsistent

174. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], p. 68. 175. DIBP, ‘Australian citizenship practice test’, Australian Government, 2017; DIBP, ‘Practice test questions’, p. 1. 176. Australian Citizenship Council, Australian citizenship for a new century, Australian Government, February 2000. 177. I Michalowski, ‘Required to assimilate? the content of citizenship tests in five countries’, Citizenship Studies, Taylor and Francis Online, 15(6-

7), 2011, pp. 749-768. 178. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 36. 179. M Turnbull and P Dutton, Strengthening the integrity of Australian citizenship, op. cit.

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with other licensing and testing across a variety of fields nationally’ and ‘represent[s] a potentially punitive approach that risks increasing barriers to integration and participation in mainstream communities’.180

The ‘Australian Citizenship Test Snapshot Report’ for 2014-15 shows the average number of tests per client was 1.1 for skilled migrants, 1.4 for family migrants and 2.4 for humanitarian migrants.181 Associated Professor Alexander Reilly has said ‘the three strikes provision will have a disproportionate effect on refugees applying for citizenship’.182

The Australian Human Rights Commission argued ‘merely failing the test due to factors such as low English literacy or schooling does not threaten the integrity of testing measures’.183

Minors

Quick guide

The Bill makes two key changes to citizenship eligibility for those aged under 18. Firstly, it amends the requirements for citizenship by conferral by:

• requiring applicants aged 16 and over and to have Competent English and

• making minor amendments to the residence requirement, which gives the Minister scope to permit holders of a prescribed visa who are outside Australia and have an Australian citizen parent, to satisfy the requirement.

Secondly, the Bill removes age limits on the good character requirement so that it applies to all applicants for non-automatic citizenship acquisition, regardless of age.

Citizenship by conferral Children applying for citizenship by conferral are currently subject to different requirements than adults. Subsection 21(5) of the Act provides a person is eligible to become a citizen if they are aged under 18 at the time of making the application, and are a permanent resident both at the time of application and the time of the Minister’s decision. There are no existing requirements for applicants to demonstrate a particular level of English or satisfy residency or character requirements.

Item 51 inserts proposed paragraphs 21(5)(b), (c) and (d) which contain new requirements for minors. Proposed paragraph 21(5)(b) provides that at the time of the application, and at the time of the Minister’s decision, the person must either:

• be a permanent resident or

• hold a permanent visa of a kind determined in a legislative instrument made under proposed subsection 3(2),184 have not entered Australia on the visa, and have a parent who is an Australian citizen. The Explanatory Memorandum states that the visa intended to be determined for the purposes of this provision will be the Adoption (subclass 102) visa.185

Proposed paragraph 21(5)(c) states that the applicant must be of good character at the time of the Minister’s decision on the application. Proposed paragraph 21(5)(d) requires an applicant aged 16 years or over at the time of the application to have competent English—the same level required for adults applying for citizenship by conferral.

180. Brotherhood of St Laurence and Whittlesea Community Connections, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission No. 323], p. 11.

181. DIBP, ‘Citizenship snapshot report’, Australian Government, 2014-15. 182. A Reilly, ‘Explainer: the proposed changes to Australian citizenship’, The Conversation, 20 April 2017. 183. AHRC, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 12.

184. Proposed subsection 3(2) is inserted by item 14, and states that the Minister may, by legislative instrument, determine a kind of permanent visa for the purposes of subparagraph 21(5)(b)(ii) and paragraph 52(2A)(b). 185. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 26.

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Neither the Minister nor the Explanatory Memorandum provide a rationale for why applicants aged between 16 and 18 would now be required to meet an English requirement, regardless of what the specific level is. This proposal will require an applicant who is 16 or 17 to have competent English, however, they will not be required to sit the citizenship test.

UNICEF Australia argues testing 16- and 17-year-olds for their language proficiency ‘is not reasonable or necessary and will disproportionately impact on children who have arrived in Australia as refugees or humanitarian entrants’.186

Good character requirement What are the changes?

Although all adult applicants for non-automatic citizenship must satisfy the Minister that they are of good character, with an exception only for stateless persons,187 there is no similar requirement for minors. The Bill changes this so the good character requirement applies to applicants regardless of age.188

This measure was proposed in the 2014 Bill.

Rationale

In his second reading speech, Peter Dutton referenced reducing the age for meeting the ‘good character’ requirement as an additional measure to ‘improve the integrity of the citizenship programme’.189 DIBP expand on this argument in the Explanatory Memorandum:

The Department is aware of children aged under 18 with serious character concerns. The amendment would not have a significant impact on children overall, but will capture those young people who are of character concern and that the Australia community reasonably expects should not be extended the privilege of Australian citizenship at that time.

190

Possible implications

When first proposed in 2014, these provisions attracted significant concern. Professor Kim Rubenstein said ‘it is difficult to see how character and the supposed interest of the State won’t take precedence in a way that prejudices the best interests of the child’. She noted how this represented a ‘significant departure from citizenship policy that broadly recognises a connection to a State through a parent, regardless of the character of the child’.191

In relation to this Bill, UNICEF Australia argues ‘the scope of these provisions could have devastating impacts in depriving young people who have committed offences at a young age from attaining Australian citizenship’.192

The University of Adelaide’s Public Law and Policy Research Unit notes ‘good character’ is not defined in the Act, ‘leaving the Minister with a broad discretion in determining whether the criteria have been met’.193 Given this, the authors propose limitations to ‘particularly serious crimes’ defined in legislation, only applicable to those aged 16 and over.

186. UNICEF Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 5. 187. Australian Citizenship Act, subsection 21(8). 188. Items 26, 34, 52, 100 and 102 omit phrases from the relevant application provisions that limit the good character requirements to those

‘aged 18 or over’. 189. P Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017’, op. cit., p. 6612. 190. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and

Other Measures) Bill 2017, op. cit., p. 26. 191. K Rubenstein (Australian National University), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], op. cit., p. 3. 192. UNICEF Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship

Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 4. 193. University of Adelaide, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., pp. 4-

5.

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The Kaldor Centre argues the ‘proposed amendments are likely to be ineffective in addressing the purported issue’.194 They note ‘it may be difficult, if not impossible, to accurately judge whether a minor, particularly one who is younger, demonstrates [good] characteristics’.195

Australian Values Statement

Quick Guide

The Bill introduces a requirement for all applicants to sign an Australian Values Statement in order to make a valid citizenship application. The content of the Statement and any requirements relating to it will be determined by the Minister in a non-disallowable legislative instrument.

What are the changes?

The government is proposing a formal Australia Values Statement for aspiring citizens. This already exists for those applying for permanent residency.

Section 46 of the Act sets out citizenship application requirements, and specifies that an application must be on the relevant form approved by the Minister, contain the information required by the form and be accompanied by any fee or other information or documents prescribed by the Regulations.196 Although there is no express reference to the Australian Values Statement (AVS), a statement of Australian values is currently part of the text of the declaration on the citizenship application form which applicants are required to sign.197 This is in very similar, but not identical, terms to the AVS which must be signed by applicants for provisional, permanent and some temporary visas.198 The Explanatory Memorandum states that an application is deemed invalid when an applicant does not sign the declaration.199 However, the Australian Citizenship Instructions suggest that this is not the case, stating:

It is preferable that application forms are signed at time of lodgement, however if a form has not been signed at time of lodgement the application should not be made invalid. 200

The changes proposed by the Bill remove this ambiguity by providing that where an AVS is required to accompany a citizenship application, failure to provide the AVS will result in the application being invalid. Item 119 inserts proposed subsection 46(5) and (6) which gives the Minister the power to make a non-disallowable legislative instrument determining an AVS and any requirements relating to it. Proposed subsection 46(1B) provides clarification as to the circumstances in which a citizenship application will be invalid. Relevantly, this includes where an AVS does not accompany the application in accordance with a determination made under proposed subsection 46(5).201

Rationale

DIBP submitted to the Senate Inquiry that ‘the Australian values statement will be strengthened to include a reference to allegiance to Australia and will require applicants to make an undertaking to integrate into and contribute to the Australian community’.202

194. Kaldor Centre, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 8. 195. Ibid., p. 9. 196. Australian Citizenship Act, subsection 46(1); Australian Citizenship Regulation 2016 (Cth), Part 3. 197. See, for example; ‘Form 1300t—application for Australian citizenship (general eligibility)’, p. 28; ‘Form 118—application for Australian

citizenship by descent’, p. 16. 198. DIBP, ‘Australian values statement’, DIBP website. 199. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and

Other Measures) Bill 2017, op. cit., p. 52. The invalidity is the result of the application, in the absence of the signed declaration, not meeting the application requirements under subsection 46(1). 200. Australian Citizenship Instructions, (ACI) ‘16.2.3: who may sign a citizenship application form’, LEGENDcom database; ACI, ’16.1 Application requirements under s46 of the Act—overview’, LEGENDcom database. However, as noted by these Instructions, an application will need to be

signed before it can be finalised—the applicant should be given a reasonable opportunity to complete their application. 201. Proposed paragraph 46(1B)(b), inserted by item 118. 202. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 31.

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The Explanatory Memorandum notes that the policy intention of the AVS is to underscore the importance of Australian citizenship and require applicants to acknowledge their understanding of the rights and privileges of citizenship and Australian values.203 It explains that the instrument determining the AVS will be exempt from disallowance because it concerns matters under Executive control:

Australian citizenship is core Government policy and aligns with national identity and as such matters going directly to the substance of citizenship policy such as Australian Values should be under Executive control, to provide certainty for applicants and to ensure that the Government’s intended policy is upheld in its application. 204

The existing Australian Values Statement which permanent visa holders must sign currently references various individual and religious freedoms, as well as the ‘commitment to the rule of law’ and ‘parliamentary democracy’.205

Possible implications

In relation to ‘Australian values’, it is unclear how the nature of the proposed changes will differ from the status quo in any practical effect. For example, the Prime Minister mentioned the ‘rule of law’. The current citizenship booklet includes the following section on the rule of law:

The rule of law: Australia’s laws are important for all people living in Australia. Australians recognise the value of laws in maintaining a peaceful and orderly society. All Australians have the right to be protected by Australia’s laws. Everyone must obey Australia’s laws. If they don’t obey the law, they may be arrested by the police and have to go to court. All Australians are equal under the law and no person or group is above the law. This is called the ‘rule of law’. People who hold positions of power in the Australian community must obey Australia’s laws. This includes government, community and religious leaders, as well as businesspeople and the police.

206

Professor Kim Rubenstein has questioned the need for this amendment, noting that the AVS already needs to be signed for a person to become a permanent resident.207 She argues:

The main drivers of an assessment of a person’s capacity to become a full member of the Australian community should be clear and unambiguous, rather than an unclear and ambiguous concept of “Australian values.” 208

Particular concerns have been raised about the fact that the instrument setting out the AVS (and associated requirements) is non-disallowable. The Scrutiny of Bills Committee states that matters that go directly to the substance of the Government’s citizenship policy are matters appropriate for parliamentary oversight. It suggests that increased scrutiny could be provided for by a range of means which nonetheless ensure certainty for applicants, such as by including core ‘Australian values’ in the primary legislation or requiring the approval of both Houses of Parliament before the instrument comes into effect.209

The Kaldor Centre has also expressed concern about the broad discretion given to the Minister to determine what constitutes Australian values, particularly where this is not subject to parliamentary scrutiny.210 In particular, it raises concerns about the requirement to sign an AVS combined with the proposed power to revoke citizenship for fraud or misrepresentation without a conviction.211 This is discussed further under the ‘Revocation of citizenship’ heading below.

203. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 53. 204. Ibid. 205. Migration Regulations 1994 (Cth), ‘Approval of Australian Values Statement for Public Criterion 4019-2016/113—IMMI 16/133’. 206. DIBP, ‘Australian citizenship: our common bond’, DIBP, Canberra, 2014, p. 17. 207. K Rubenstein, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], 23 July 2017, [submission no. 404], pp. 3-4. 208. Ibid. 209. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., pp. 10-11. 210. Kaldor Centre, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 15. 211. Ibid.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 33

Pledge of allegiance

Quick guide

The Bill extends the pledge requirement which currently applies for citizenship by conferral, so that it will apply to all applicants for non-automatic acquisition of citizenship unless the applicant:

 is aged under 16 at the time of making the application or

 is incapable of making the pledge due to a permanent or enduring physical or mental incapacity.

The Bill replaces references to a ‘pledge of commitment’ with the term ‘pledge of allegiance’, and amends the wording of the pledge to include reference to Australian values. It extends the period for which the Minister can delay a person from taking the pledge (where the Minister is considering cancelling approval) from 12 months to two years.

Who must make the pledge Currently, a person must make a ‘pledge of commitment’ if they are applying for citizenship by conferral, unless an exception applies.212 Exceptions include where the person is under 16 years of age; has a permanent or enduring physical or mental incapacity; or is granted citizenship on the basis of being born to a former Australian citizen, having been born in Papua to an Australian parent prior to Papuan Independence, or being stateless.213 Two forms of the pledge—an oath and a non-religious affirmation—are set out in Schedule 1 of the Act.

The Bill expands the circumstances in which a person must take a pledge before becoming an Australian citizen. The DIBP argues, ‘[t]he citizenship reforms will contribute to achieving Australia’s national security objectives by ensuring that all aspiring citizens make a commitment of allegiance to Australia and demonstrate an understanding of and commitment to Australian values’.214

Item 97 repeals sections 26 to 28, which set out the existing requirements for the pledge of commitment in relation to citizenship by conferral. Item 108 inserts proposed Subdivision D of Division 2 of Part 2 of the Act, which applies to all forms of non-automatic citizenship acquisition under the Act. Proposed section 32AB provides that all persons must make a ‘pledge of allegiance’ to become an Australian citizen unless they:

• are aged under 16 at the time of the application or

• have a permanent or enduring physical or mental incapacity that means they are not capable of making the pledge.

Unless a person falls into one of these two exceptions, they will be required to make the pledge. The change means that applicants for citizenship by descent or on the basis of intercountry adoption, as well as applicants for conferral who were previously exempt (such as those granted citizenship under the statelessness provisions), will now be required to make the pledge before becoming citizens.

Delayed making of pledge The Bill also extends the circumstances in which the Minister can delay a person making the pledge. Currently, the Minister can issue a written determination that a person cannot make a pledge until the end of a specified period where the Minister is satisfied that the person’s visa may be cancelled under the Migration Act 1958, or that the person has been or may be charged with an offence under an Australian law.215 Proposed subsection 32AB(3) preserves these grounds for delaying the pledge, and inserts an additional ground, providing that the Minister may also prevent a person from making the pledge where the Minister is considering cancelling approval of a citizenship application.216

212. Australian Citizenship Act, subsection 26(1). 213. Ibid., subsections 21(6), (7) and (8) and 26(1). 214. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 79.

215. Ibid., subsection 26(3). 216. Proposed paragraph 32AB(3)(c). More information about the circumstances in which the Minister may cancel an approval is provided under the ‘Refusals and cancellations of approval’ section of the Digest.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 34

Under the existing law, a person can be prevented from making the pledge for a maximum period of 12 months.217 Proposed subsection 32AB(4) extends this to a maximum of two years.

In its submission to the Senate inquiry into the Bill, the DIBP stated that increasing the time period ‘enables the Department more time to investigate cases that are complex in nature and may take more than 12 months to investigate’.218

The Kaldor Centre has expressed concerns about extending the length of time in this way. While acknowledging ‘there may be circumstances in which a delay of 12 months is insufficient to allow investigations to be completed’, it has also pointed to the potential for citizenship delays to cause high levels of stress and anxiety for applicants, particularly for refugees or humanitarian entrants.219 It has recommended that stronger justification be provided for the need to increase the maximum length of delays, and that the Bill should:

… enumerate and limit the circumstances in which delay of more than 12 months will be permitted under the Act, and require that any delay imposed is proportionate to the circumstances that trigger it. 220

Form of pledge The Bill replaces all references in the Act to the pledge of commitment with the term ‘pledge of allegiance’. Item 133 amends the wording of the pledge in Schedule 1 to require the person to:

• pledge their allegiance, rather than ‘loyalty’, to Australia and its people and

• state that they share the Australian people’s ‘values’ alongside the existing reference to shared ‘democratic beliefs’.

The Explanatory Memorandum describes the change in wording as ‘symbolic’, and further provides:

The act of a person making the pledge and using the word ‘allegiance’ does not in itself renounce a person’s other citizenship. The Government recognises and accepts dual citizenship is a means to support and build a strong and diverse multicultural community by encouraging those who wish to become citizens, and who meet the legal requirements for citizenship, to participate fully in the Australian democratic processes and community.

221

Retrospective application Application provisions in Part 2 of Schedule 1 provide that the key changes to citizenship eligibility proposed by the Bill are to apply to all citizenship applications made on or after 20 April 2017, the date of the Government’s announcement of the proposed reforms.222 This is in line with the statement in the Government’s Strengthening the test for Australian citizenship paper, that the reforms would apply to applications received on or after the date of the Government’s announcement.223

The following measures proposed by the Bill are to apply in relation to applications made on or after 20 April 2017:

• amendments to the pledge of commitment, including proposed changes to the content of the pledge and who is required to take it224

• amendments to the eligibility requirements for citizenship by conferral under section 21, except in relation to the proposed residency and good character requirements for persons under 18225

217. Australian Citizenship Act, subsection 26(4). 218. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 83. 219. Kaldor Centre, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., pp. 18-19. 220. Ibid., p. 19. 221. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and

Other Measures) Bill 2017, op. cit., p. 60. 222. M Turnbull and P Dutton, Joint press conference, op. cit. 223. Australian Government, Strengthening the test for Australian citizenship, op. cit., p. 19. 224. Item 136. Note that the Minister’s power to delay a person from making the pledge when considering cancelling the citizenship approval, as

set out in proposed paragraph 32AB(3)(c), is to apply in relation to all approvals given before, on or after 20 April 2017.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 35

• amendments to the residency requirements for citizenship by conferral, and to the citizenship test provisions226 and

• amendments to the application validity requirements under section 46.227

The DIBP submission to the Senate Inquiry states that this retrospective application:

… was informed by experiences of previous Australian governments announcing reforms to programmes in the portfolio including the citizenship programme. When new policy is announced this can result in significant increases in the number of applications, and consequential delays in the processing of these applications. 228

Legislation with retrospective application is not inherently unlawful. Though there is a presumption underpinning statutory interpretation that an Act will be assumed not to have retrospective operation, this is displaced where there is a clear statement to the contrary.229 Nonetheless, stakeholders have expressed concerns about the uncertainty created for citizenship applicants by the retrospective implementation of the changes. Legal Aid NSW has submitted that retrospective laws are not consistent with the rule of law principle that the law should be public, prospective and capable of being known by those who are subject to it.230 It argues that retrospectivity should be ‘rare and accompanied by proper justification’, and notes that the Explanatory Memorandum does not provide a justification for the proposed retrospective application.231 The Refugee Council of Australia has raised similar concerns, stating: ‘it is extremely troubling that the Australian Government thinks that, by merely announcing a prospective Bill, it can thereby suspend the existing rights of people in this country’.232

The Settlement Council of Australia has raised concerns about the impact on applicants, noting:

It is highly irregular for applicants, eligible now under the 2007 Act, to be told that their applications will be on hold pending new legislation. This is particularly the case given that many applicants who are eligible at present could, if the changes proceed, become ineligible at some point in the future.

This approach to such a crucial element in the settlement process results in high levels of insecurity and confusion among migrants. 233

The Scrutiny of Bills Committee has requested advice from the Minister as to the number of people likely to be affected by the retrospective application of these provisions.234

It is unclear how the Australian Government will proceed with citizenship applications made after 20 April 2017 if the Bill is unsuccessful in the Parliament. This may have an impact on citizenship trends. In a research report from 2011, ‘Citizenship in Australia’, the authors from the Department of Immigration and Citizenship found ‘[h]istorically, citizenship application rates tend to drop following changes to the Citizenship Act, possibly due to uncertainty about eligibility in migrant communities’.235

225. Item 137(6)—the proposed residency and good character requirements for persons under 18 are to apply to applications lodged after commencement of the relevant provisions (subitem 137(4)). 226. Item 137(6). 227. Item 139. 228. DIBP, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 32. 229. D Pearce and R Geddes, Statutory Interpretation in Australia , 8th edition, LexisNexis Butterworths, Australia, 2014, p. 397. 230. Legal Aid NSW, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship

Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission no. 385], pp. 9-10. 231. Ibid. 232. Refugee Council of Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 15. 233. Settlement Council of Australia, Submission to DIBP, Consultation on strengthening the test for Australian citizenship, 1 June 2017, p. 9. 234. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., p. 19. 235. D Smith, J Wykes, S Jayarajah and T Fabijanic, ‘Citizenship in Australia’, Department of Immigration and Citizenship, 2011, p. 14.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 36

Refusals and cancellations of approval Quick guide

The Bill expands the circumstances in which the Minister can refuse to approve an application for citizenship by:

• introducing new grounds for mandatory refusal to reflect modern sentencing practices—these include where a person is in court-ordered home detention or is participating in a court-ordered residential drug rehabilitation scheme or other residential scheme or program and

• aligning the grounds on which the Minister may or must refuse approval of an application for citizenship by descent, intercountry adoption or for the resumption of citizenship, with those which apply for citizenship by conferral.

The Bill also expands circumstances in which an approval, once granted, can be cancelled:

• an approval must be cancelled where the applicant has not yet taken the pledge and the Minister is satisfied they would not meet the requirements for approval on either identity or national security grounds

• whereas currently the Minister can only cancel approvals of applications for citizenship by conferral, the Bill inserts proposed subsections 17A, 19DA and 30A to align the grounds for mandatory and discretionary cancellation for all forms of non-automatic citizenship acquisition.

As the Bill proposes extending the length of time for which the Minister can delay a person making the pledge from 12 months to two years, the period of time in which the Minister may cancel a citizenship approval is similarly extended.

Expanded grounds to refuse citizenship approval What are the changes?

Section 24 lists circumstances in which the Minister may or must refuse to approve an application for citizenship by conferral. Subsection 24(6) compels the Minister to refuse approval when a person is in prison in Australia, within two years following their release after serving a ‘serious prison sentence’ or within 10 years in the case of a serious repeat offender, during any parole or licence period, or while a person has been released subject to conditions, or when proceedings for an offence against Australian law are pending.

The Bill expands the grounds for mandatory refusal under this subsection. Amendments inserted by item 88 require the Minister to refuse approval where a person is in court-ordered home detention (proposed paragraph 24(6)(i)), or participating in a court-ordered residential drug rehabilitation scheme or other residential scheme or program (proposed paragraph 24(6)(j)), where this is in connection with an offence against an Australian law.

The grounds for refusal at subsection 24(6) apply only in relation to citizenship by conferral. In relation to other forms of non-automatic citizenship acquisition, the only existing mandatory grounds for refusal are where the person does not meet the eligibility criteria, the Minister is not satisfied of the person’s identity, or where the person is considered a risk to national security. The Bill extends the grounds for refusal of applications for citizenship by descent, citizenship for adopted persons and resumption of citizenship, to capture all the grounds covered by subsection 24(6) (incorporating the additional grounds as proposed by item 88).236

Rationale

The Statement of Compatibility provides that the amendments recognise modern sentencing practices, in particular the increasing judicial use of home detention orders and rehabilitation programs in place of imprisonment:

… it is legitimate for the government to specify that a person cannot be approved for citizenship if they are currently before the courts or under an obligation to the courts following proceedings for a criminal offence … Contemporary obligations to the court extend beyond traditional sentencing to include residential programs for those with drug addictions or the mentally ill. It is necessary for the citizenship programme to take into account these updated

236. Item 27 inserts proposed subsection 17(4C) (in relation to citizenship by descent); item 36 inserts proposed subsection 19D(7B) (in relation to citizenship for adopted persons); item 103 inserts proposed subsection 30(8) (in relation to resuming citizenship). Each of these provisions is identical.

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sentencing practices in order that the programme’s bar on approvals are reflective of current practice and consistently applied to all applicants for Australian citizenship. 237

Possible implications

The substance of the proposed amendments was replicated in the 2014 Bill.238 At the time, stakeholders raised concerns that the changes could result in approval being refused in circumstances where there had been no criminal conviction. For example, the Migration Institute of Australia queried the inclusion of good behaviour bonds, arguing that these bonds are commonly used instead of fines and may be imposed without conviction, particularly for young offenders.239 Accordingly, it suggested that the amendments could capture people with issues relating to mental or addictive illnesses, ‘rather than any criminal intent or record’.240

The AHRC expressed concern about the impact of the changes on persons with an intellectual disability or cognitive impairment, noting that the proposed prohibitions may apply where a person is charged but not convicted of any criminal offence.241 This may include where the court has determined the person was unable to plead to any criminal charges, or where a person was found not guilty of an offence by reason of mental impairment.242

UNHCR has queried the extension of these provisions to applications for citizenship by descent, arguing that they go beyond the limits provided for under the 1961 Convention on the Reduction of Statelessness (Statelessness Convention), which allows states to impose a condition on applicants for citizenship by descent that they have not been convicted of a national security offence.243 UNHCR has recommended that an express exception for stateless persons be inserted into section 17, similar to that which currently exists in relation to citizenship by conferral under subsection 24(8).244

New mandatory cancellation of approval What are the changes?

Section 25 currently provides the Minister with discretion to cancel the approval of an application for citizenship by conferral if the person has not yet become an Australian citizen, and the Minister is satisfied the person is either not a permanent resident, not likely to reside in Australia or maintain a close and continuing association with Australia or not of good character. Approval may also be cancelled if a person fails to make a pledge of commitment within 12 months after receiving notice of the approval, where the reason for the failure is not one prescribed in the Regulations.245

The Bill amends section 25 to introduce grounds for mandatory cancellation of a citizenship approval. Item 90 inserts proposed subsection 25(1A) providing that the Minister must cancel certain approvals of citizenship by conferral if:

• the person has not yet become an Australian citizen (usually by taking the pledge of allegiance)246

237. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 82. 238. The only difference between the provisions in the present Bill and the 2014 Bill is some minor wording changes: the present Bill replaces references to ‘psychiatric institution’ with ‘mental health care facility’ and references to a ‘residential program for the mentally ill’ with

‘residential program for persons with a mental illness’. 239. Migration Institute of Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], [submission no. 14], p. 4. 240. Ibid. 241. AHRC, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other

Legislation Amendment Bill 2014 [Provisions], op. cit., pp. 17-18. 242. Ibid., p. 18. 243. UNHCR, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], 21 July 2017, [submission no. 438], p. 10. See also: Convention on the Reduction of Statelessness, done in New York on 30 August 1961, [1975] ATS 46 (entered into force for Australia and generally 13 December 1975). 244. Ibid. 245. The prescribed reasons for failing to make the pledge of commitment are contained in Australian Citizenship Regulation 2016, section 9. 246. Under proposed section 32AD at item 108, a person becomes an Australian citizen on the day they make the pledge of allegiance, if this is required. If a person is not required to take the pledge, they generally become a citizen on the day the Minister approves citizenship.

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• approval was given on the basis of the person meeting the criteria for citizenship by conferral under provisions for either: general eligibility; minors; or persons aged 60 or over or with a hearing, speech or sight impediment247 and

• at the time of the proposed cancellation the Minister is satisfied the person would not meet the requirements for approval under section 24 on either identity or national security grounds.248 If the person has not yet made the pledge, and there are other reasons the Minister is satisfied the person no longer meets the requirements for approval under section 24 (with the exception of the applicant not being present in Australia), then cancellation is discretionary.249

This approach is replicated for other types of non-automatic citizenship acquisition, for which there is currently no capacity under the Act for the Minister to cancel an approval once granted. The same grounds for cancellation will therefore apply to applications for citizenship by descent,250 on the basis of intercountry adoption,251 and applications to resume citizenship.252

Rationale

Under the current law, only (certain) applicants for citizenship by conferral are required to take the pledge of commitment, and do not automatically become citizens upon receiving approval. Applicants for other forms of citizenship become citizens on the day their application is approved.253 There is therefore no period of time after approval and before the applicant becomes a citizen, in which the Minister may consider cancellation for these types of citizenship applications.

However, as explained above, the Bill significantly expands the number of citizenship applicants who must take the pledge. For these applicants there will now be a period of time after they receive approval but before they take the pledge. By extending the cancellation provisions to all types of non-automatic citizenship acquisition, the amendments appear to be aimed at allowing the Minister to respond when, during this period, an applicant may no longer meet the approval requirements.

Possible implications

The impact of the proposed amendments should be considered in connection with other changes proposed by the Bill; particularly, the expanded circumstances in which a citizenship applicant must take the pledge, and amendments made to the Minister’s powers to delay a person from taking the pledge (discussed under ‘Pledge of allegiance’ above). As more citizenship applicants will be required to take the pledge, and the Minister will be able to delay this for a longer period when contemplating cancelling approval, there is likely to be more scope for the Minister to exercise these cancellation powers. The amendments are not restricted by age, so the Minister has the power to cancel approval granted to a minor.

Revocation of citizenship Quick guide

The Bill expands the circumstances in which the Minister can revoke citizenship, to include the following:

• a person who the Minister is satisfied has obtained approval to become a citizen as a result of fraud or misrepresentation, whether through their own actions or those of a third party, without the requirement for a conviction (proposed section 34AA)

• a person who has acquired citizenship by descent, where the Minister is satisfied that approval should not have been given (proposed section 33A)—this replaces a narrower operation of law provision

• a child of a person whose citizenship is revoked by the Minister under one of the above provisions, where the

247. Australian Citizenship Act, subsections 21(2), (4) and (5) respectively. 248. This provision is to apply where approval has been given to a person under either subsection 21(2) (general eligibility), 21(4) (person aged 60 or over or has hearing, speech or sight impairment) or 21(5) (person aged under 18). 249. Item 93, proposed subsection 25(2). 250. Item 28 inserts proposed section 17A. 251. Item 36 inserts proposed section 19DA. 252. Item 104 inserts proposed section 30A. 253. Australian Citizenship Act, sections 19, 19F and 28.

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child does not have another responsible parent who is Australian citizen (section 36, as amended by item 114).

Revocation for fraud or misrepresentation without conviction What are the changes?

The Minister may currently revoke citizenship of an Australian citizen where the Minister believes it is contrary for the person to remain a citizen and either:

• the person has been convicted of an offence relating to fraud or misrepresentation in relation to their citizenship application or

• the person received the Minister’s approval to become an Australian citizen as a result of third-party fraud, for which a person has been convicted.254

Item 113 inserts proposed section 34AA which provides for additional Ministerial powers of revocation in cases of fraud or misrepresentation. In contrast to the existing provision, proposed section 34AA does not require there to have been a conviction. It allows the Minister to revoke citizenship if satisfied that the person obtained the Minister’s approval to become a citizen as a result of fraud or misrepresentation, in connection with either:

• the Minister’s approval of the person’s citizenship

• the person’s entry into Australia prior to the Minister’s approval or

• the grant of a visa, or permission to enter and remain in Australia, prior to the Minister’s approval.255

The Minister must be satisfied it would be contrary to the public interest for the person to remain an Australian citizen.256 Unlike section 34, under proposed section 34AA the fraud or misrepresentation does not have to constitute an offence, or part of an offence. Proposed subsection 34AA(4) states that the concealment of material circumstances constitutes misrepresentation for the purposes of this section. The fraud or misrepresentation must have occurred within ten years before the date of revocation, and may have been committed by any person—not necessarily the person whose citizenship is revoked.257

Rationale

The provision was included in the same form in the 2014 Bill, and was the key point of concern raised by the Senate Legal and Constitutional Affairs Committee in its inquiry into that Bill.258 In its submission to the inquiry, the Department explained the expanded revocation powers on the basis that ‘there are often limited resources to prosecute all but the most serious cases relating to migration and citizenship fraud’.259 Consequently, and in light of the time it may take to secure a conviction, the Department stated that the power to revoke citizenship on the basis of a fraud conviction has been rarely used, ‘even where the evidence of fraud is strong’.260 It pointed out that citizenship laws of Canada, New Zealand and the United Kingdom already contain these Ministerial powers.261 However, June 2017 amendments to Canada’s Citizenship Act have amended the

254. Australian Citizenship Act, section 34. The Minister also has the power to revoke a person’s citizenship granted by conferral, where the person has been convicted of a serious offence after lodging their citizenship application (as defined under subsection 34(5)). 255. Proposed subsection 34AA(1). 256. Proposed paragraph 34AA(1)(c). The Minister’s power to revoke citizenship under this provision appears to be delegable, though in practice

the Minister has not yet delegated his powers under section 34. 257. Proposed subsection 34AA(2) and (3). 258. Australian Citizenship and Other Legislation Amendment Bill 2014, op. cit., item 66; Senate Legal and Constitutional Affairs Legislation

Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014, The Senate, Canberra, December 2014, pp. 27- 32, 40-42. 259. DIBP, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], op. cit., p. 5. 260. Ibid. 261. DIBP, Answers to questions taken on notice at a public hearing on 19 November 2014, Senate Legal and Constitutional Affairs Legislation

Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014, p. 2. Also see: Citizenship Act 1977 (NZ), section 17; British Nationality Act 1981 (UK), section 40; Citizenship Act (R.S.C., 1985 C-29) (Can), section 10.

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procedure for revocation of citizenship on the basis of fraud, introducing a new requirement that such revocation can only take place by way of Federal Court order.262

Possible implications

A number of stakeholders have raised concerns with this provision. The Australian Human Rights Commission (AHRC) has pointed to the ‘grave consequences’ involved for an individual whose citizenship is revoked, arguing:

… any allegations of fraud or misrepresentation used as the basis for revoking citizenship should be established as a result of a fair and public hearing by a competent, independent and impartial tribunal established by law.

The proposal to remove this important safeguard and allow citizenship to be taken away simply by an administrative action by government is contrary to these principles of due process. 263

The Law Council of Australia, in its submission to the Senate Inquiry for the 2014 Bill, similarly claimed that the proposed changes appeared to undermine the rule of law principle of the presumption of innocence, and entitlement to a fair and public trial. It suggested that concerns regarding the capacity of law enforcement agencies to prosecute such matters would be more appropriately addressed by dealing with the resourcing issues, rather than lowering the applicable standard.264 Similar points were also put forward in relation to the 2014 Bill by Associate Professor Alexander Reilly, who noted that if the grounds for revocation of citizenship are too broad, the security of citizenship is compromised. Associate Professor Reilly stated that although the Department should rightfully make ‘rigorous and proper inquiries into a person’s character and the integrity of their application’ before granting citizenship, once a person holds citizenship the Department should bear the onus of providing ‘clear evidence of fraud’.265

Additionally, the Refugee Council of Australia has argued the proposal has the potential to disproportionately impact on refugees who come by boat, who may misremember details of their past, mistrust government authorities and will commonly need to obtain false documents or use the services of smugglers in trying to find safety.266 The Refugee Council states that the process of obtaining visas, compounded by factors including mental health consequences arising from persecution and the need to rely on translators to communicate information, makes it ‘all too easy for discrepancies, inconsistencies and misunderstandings to arise’ which may be perceived as ‘misrepresentation’.267

The Kaldor Centre has argued that the discretion conferred by proposed section 34AA is extremely broad, particularly as it may interact with other broad discretions created under the Bill.268 It states, for example, that it is not clear whether the provision would allow the Minister to decide a person has acted fraudulently in signing the Australian Values Statement, if the person subsequently engages in conduct the Minister considers to be inconsistent with the values contained in the Statement.269 Similarly, the Kaldor Centre suggests that conduct engaged in after a person acquires citizenship which demonstrates a lack of ‘integration’ into the Australian community, could potentially be used by the Minister to conclude that representations made to demonstrate integration at the time of the citizenship application were ‘misrepresentations’.270

262. Parliament of Canada, Bill C-6 (Royal Assent), assented to 19 June 2017, item 4; T Thanh Ha, ‘Federal Court voids Canadian citizenship revocation for 312 people’, The Globe and Mail, 12 July 2017. 263. AHRC, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., pp. 19-20. 264. Law Council of Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship

and Other Legislation Amendment Bill 2014 [Provisions], [submission no. 12], p. 2. 265. A Reilly, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], op. cit., pp. 4-5. 266. Refugee Council of Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian

Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 13. 267. Ibid. 268. Kaldor Centre, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., pp. 22-24. 269. Ibid., pp. 23-24. 270. Ibid.

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Draft policy guidance provided by the Department to the 2014 Senate inquiry set out a proposed (incomplete) framework for making a decision under proposed section 34AA.271 This states that Ministerial ‘satisfaction’ would require the Minister to be ‘actually persuaded’ of the occurrence of fraud or misrepresentation, based on findings or inferences of fact ‘that are supported by probative material or logical grounds’.272

The majority report of the 2014 inquiry stated that it appreciated the need for the proposed power to revoke citizenship for fraud or misrepresentation without conviction. However, the Committee expressed concern that the standard of proof required had been ‘reduced too far; that is, from ‘beyond a reasonable doubt’ to the satisfaction of the minister’.273 Although noting the assurances provided by the Department’s proposed policy materials regarding the requisite level of satisfaction, the majority report asked the Minister to confirm the ‘basis and material upon which his decisions under proposed s 34AA would be exercised’.274

Statelessness

As with the existing grounds for revocation in the case of fraud, proposed section 34AA is not expressly limited to dual nationals.275 This means that a person whose Australian citizenship is revoked under this proposed provision, who does not hold and is not entitled to hold citizenship of another country, may be rendered stateless. The Department has previously noted that this is consistent with Australia’s obligations under the 1961 Convention on the Reduction of Statelessness (Statelessness Convention), which allows for a person to be deprived of their citizenship where it has been obtained by misrepresentation or fraud.276

Particular concerns have been raised about this in regards to children. There are two ways in which a child may have their citizenship revoked as a result of proposed section 34AA. The first is indirectly under section 36, which provides that where a person’s citizenship is revoked, the Minister may also revoke the citizenship of the person’s child, providing that the child does not have another responsible parent who is an Australian citizen.277 Item 114 amends section 36 so that it applies to circumstances in which the Minister revokes citizenship under proposed section 34AA. However, subsection 36(3) prevents the Minister from revoking a child’s citizenship under this provision where they would become stateless as a result. This is consistent with Australia’s obligations under the Statelessness Convention, which states that where the law provides for loss of nationality by a person’s children as a consequence of that person losing or being deprived of their nationality, this must be conditional on the child’s possession or acquisition of another nationality.278

However, in addition to this provision, proposed section 34AA is sufficiently broad to allow the Minister to revoke a child’s Australian citizenship where the Minister is satisfied this was obtained as a result of fraud or misrepresentation. Unlike section 36, proposed section 34AA contains no provision limiting the Minister’s power to revoke citizenship where the child would become stateless.

The Parliamentary Joint Committee on Human Rights raised concerns about the compatibility of the measure with a child’s right to nationality under the Convention on the Rights of the Child and the International Convention on Civil and Political Rights.279 It stated:

271. DIBP, Answers to questions taken on notice at a public hearing on 19 November 2014, Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014, ‘Attachment A: Draft outline of policy guidance on power to revoke citizenship for fraud or misrepresentation without prior conviction’.

272. Ibid., Attachment A, p. 8. 273. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014, The Senate, Canberra, December 2014, p. 40. 274. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill

2014, op. cit., pp. 41-2 (recommendation 1). 275. In relation to section 34, subsection 34(3) states that the Minister must not revoke a person’s citizenship if it will cause the person to become stateless, but only where the revocation is on the basis that the person has committed a ‘serious offence’ after lodging their citizenship

application (subparagraph 34(2)(b)(ii)). There is no similar limitation on the Minister’s power to revoke citizenship in cases of fraud, where a person will be stateless as a result. 276. Convention on the Reduction of Statelessness, done in New York on 30 August 1961, [1975] ATS 46 (entered into force for Australia 13 December 1975), article 8(2); DIBP, Additional information provided to the Senate Standing Committee on Legal and Constitutional Affairs

Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014, 19 November 2014, p. 4. 277. Australian Citizenship Act, subsection 36(1). 278. Convention on the Reduction of Statelessness, op. cit., article 6. 279. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, op. cit., pp. 16-17. See also: International Covenant on Civil

and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13 November

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Under international human rights law ministerial discretion, in and of itself, does not constitute a sufficient safeguard against the risk that the power may be exercised in a manner which would not be proportionate to the stated objective of the measure. The same is true in relation to a requirement that a power be exercised in the public interest.

280

Application provisions

The revocation powers under proposed section 34AA will apply to all approvals to become an Australian citizen given on or after commencement of the provision, regardless of when the fraud or misrepresentation occurred.281

Revocation of citizenship by descent—new Ministerial discretion What are the changes?

Existing section 19A provides that a person does not become a citizen on the basis of descent unless they had an Australian-citizen parent at the time of their birth (if born on or after 26 January 1949) or had a parent who became an Australian citizen on 26 January 1949 (if the person was born before this date). This means that by operation of the law, a person who acquires Ministerial approval for citizenship by descent but does not in fact meet these requirements, will not actually be a citizen. Under the current provision, no Ministerial act is required to remove the person’s citizenship.

The Bill replaces this operation of law provision with a Ministerial discretion. Item 30 repeals section 19A. Item 111 inserts proposed section 33A, which provides that the Minister may revoke citizenship where it was granted on the basis of descent, and the Minister is satisfied that the approval should not have been given.282 The Minister must not revoke citizenship where doing so would mean the person was not a national or citizen of any country.283 A note at the end of proposed section 33A indicates that by operation of existing section 36, a child of a person whose citizenship is revoked under this proposed section may also cease to be an Australian citizen. Item 114 inserts a reference to proposed section 33A into paragraph 36(1)(a).

Rationale The Explanatory Memorandum states that the amendments will allow the circumstances of a particular case to be taken into account in deciding whether a person’s citizenship should be revoked:

The discretionary nature of the decision under new section 33A means that issues such as the length of time that the person has been a citizen, and the seriousness of any character concerns, can be taken into account. 284

Possible implications

Although introducing a Ministerial discretion in place on an operation of law provision would theoretically appear to be a beneficial amendment which enables consideration of the circumstances of a person’s case before citizenship is revoked, the scope of the discretion under proposed section 33A is very broad. Under existing section 19A, a person who becomes a citizen by descent is only not entitled to this citizenship if they do not in fact have a parent who was an Australian citizen at the time of the person’s birth (or who became an Australian citizen on 26 January 1949). In contrast, proposed section 33A appears to allow the Minister to revoke citizenship where a person does not satisfy good character requirements under section 16, or meet the broader requirements for citizenship approval under section 17—including on identity or national security grounds, or where they fall within the offence provisions under proposed subsection 17(4C) (inserted by item 28 of the Bill).

1980; Art. 41 came into force for Australia on 28 January 1994); Convention on the Rights of the Child, done in New York on 20 November 1989, [1991] ATS 4 (entered into force for Australia on 16 January 1991). 280. Ibid. 281. Item 138. 282. Proposed subsection 33A(1). 283. Proposed subsection 33A(2). 284. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 49.

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The proposed amendment would give the Minister the power to revoke citizenship acquired by descent on grounds which are not available for other types of citizenship acquisition, such as citizenship by conferral. The Scrutiny of Bills Committee has raised concerns about the power being exercised to cancel citizenship on character grounds, noting in particular that there is no time limit imposed on the exercise of the power and that merits review may not be available where the decision is made personally by the Minister.285

Merits review of decisions Quick Guide

The Bill makes significant changes to the AAT’s role in providing merits review of citizenship decisions, by:

• providing that personal decisions of the Minister, when made in the public interest, cannot be reviewed by the AAT (proposed subsection 52(4))

• preventing a person under 18 from applying for AAT review of a decision relating to citizenship by conferral if they do not meet the residency requirements, in line with a restriction which already applies to those over 18 (proposed subsection 52(2A))

• giving the Minister the power to override certain AAT citizenship decisions made on the basis of character or evidence of identity, where it is in the public interest to do so (proposed section 52A).

Excluding decisions from AAT review What are the changes?

Section 52 currently sets out decisions made under the Act which can be reviewed by the AAT, and covers decisions to refuse or cancel approval of a citizenship application, or a decision to revoke citizenship. The Bill amends this section to insert references to the expanded Ministerial powers to cancel approval and revoke citizenship, as proposed by the Bill.286

Under existing section 52, there are only limited exclusions to the right to merits review in the AAT.287 Subsection 52(2) prevents a person aged over 18 from applying for review of a decision to refuse a citizenship application by conferral, unless they are a permanent resident (or the application was on statelessness grounds). Proposed subsection 52(2A), inserted by item 123, extends this restriction to persons who have applied for citizenship by conferral on the basis of being a person under 18, unless the applicant meets the residency requirements under subsection 21(5).288 The Statement of Compatibility states that this amendment will remove what is currently a ‘futile right to review’, where a person does not meet the objective legislative requirements for citizenship.289

The Bill also introduces a broader exclusion in relation to personal decisions of the Minister. Proposed subsection 47(3A), inserted by item 120, provides that if a decision is made by the Minister personally, the notice of the decision may include a statement that the Minister is satisfied the decision was made in the public interest. Where a notice includes this statement, proposed subsection 52(4) states that it cannot be reviewed by the AAT.290

This amendment gives the Minister a broad power to exclude from merits review, decisions that the Minister has made personally. This may include, for example, decisions to revoke a person’s citizenship. The Bill does not contain guidelines regarding public interest considerations which may guide the issuing of a public interest notice, and a person cannot appeal such a notice. Some level of parliamentary scrutiny is provided for under

285. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., pp. 6-7. 286. Items 121, 122, 125. 287. While not an excluded decision, subsection 52(3) prevents the AAT from exercising a discretion conferred on the Minister under subsections 22A(1A) (determining that a person satisfies the special residence requirements) or 22B(1A) (determining that a person satisfies

the alternative residence requirements). Item 125 extends this to include a Ministerial discretion exercised under proposed subsection 22AA(1) (in relation to waiving the general residence requirement). 288. That is, the applicant is either a permanent resident, or holds a permanent visa of a kind determined in a legislative instrument under subsection 3(2). 289. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and

Other Measures) Bill 2017, op. cit., p. 76. 290. Item 126.

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proposed section 52B, which provides that where the Minister makes a decision which is not reviewable because of proposed subsection 52(4), within 15 sitting days the Minister must table in both Houses of Parliament a statement setting out the decision and its reasons.291

Rationale

The Explanatory Memorandum states:

As an elected Member of Parliament, the Minister represents the Australian community and has a particular insight into Australian community standards and values and what is in Australia’s public interest. As such, it is not appropriate for an unelected administrative tribunal to review such a personal decision of a Minister on the basis of merit, when that decision is made in the public interest.

292

It additionally provides that ‘it is expected that only appropriate cases will be brought to the Minister’s personal attention, so that merits review is not excluded as a matter of course’, though does not give examples of what may be considered an appropriate case.293

Possible implications

Stakeholders have raised concerns about the removal of this level of independent scrutiny of the Minister’s powers. The Australian Human Rights Commission has noted that the overall objective of the merits review system is to ensure that administrative decisions of government are correct and preferable, and that merits review provides an opportunity to correct any factual errors made by the primary decision maker.294 It points to Article 14 of the International Covenant on Civil and Political Rights (ICCPR) which provides that all persons shall be entitled to a ‘fair and public hearing by a competent, independent and impartial tribunal established by law’.295 The Public Law and Policy Research Unit at the University of Adelaide has questioned the justification provided in the Explanatory Memorandum, submitting:

… it is erroneous to contend that being a representative of the community gives a minister a ‘particular insight into community standards’ … We contend that it is precisely because the Minister is politically accountable and making a ‘personal decision’ that merits review in the AAT is necessary. Ultimately, what is required of the executive process of determining a citizenship application is a decision based on merit and not a decision based on political or personal considerations.

296

The Scrutiny of Bills Committee noted that the AAT will routinely apply government policy and guidance in making decisions, and suggested that the Minister’s role in ‘representing the Australian community’ may be pursued through the development of applicable policy to guide the exercise of these powers.297 The Committee stated that discretionary powers which have a direct and immediate effect on personal rights and interests should, in principle, be subject to merits review, and that a decision having been made in the public interest is not in itself a sufficient reason to justify departure from this principle.298

Decisions excluded from merits review under the Act will still be subject to judicial review by the courts. The Refugee Council argued that this is not an adequate substitute for merits review:

291. Item 127. Proposed subsection 52B(2) provides that such a statement is not to include the name of the person affected by the decision. 292. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 55. 293. Ibid. 294. AHRC, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 13. 295. Ibid., p. 14. See also: International Covenant on Civil and Political Rights, op. cit. 296. University of Adelaide, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship

Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 12. 297. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., p. 12. 298. Ibid., p. 13.

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The role of judicial review is to assess whether a legal error was made in the handling of a particular case, not whether the case itself has merit. As such judicial review must be seen as a complement to (not a substitute for) merits review, as its purpose is fundamentally different. 299

The Kaldor Centre has also pointed to ‘numerous barriers to accessibility of judicial review’, including costs, time delays and the complexity of challenges.300 It further argues that Australian courts have been historically reluctant to review the exercise of public interest discretions, with the High Court previously stating that a public interest test in legislation will reflect the Parliament’s intention that ‘political assessment of the public interest is to be preferred to judicial assessment’.301

Ministerial power to overrule AAT decisions What are the changes?

Proposed section 52A gives the Minister the power to set aside decisions of the AAT if satisfied it is in the public interest to do so. This is a personal power which cannot be delegated.302 The discretionary power will apply to decisions which meet all the following criteria:

• the decision by the original decision-maker was in regards to the refusal of an approval of citizenship, or the cancellation of an approval given under the Act

• the original decision-maker made the decision because they were not satisfied the person was of good character at the time of the decision or was not satisfied of the identity of the person

• the AAT, on review, set aside the decision under section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) and

• the person has not yet become an Australian citizen.303

Where a decision is made under this provision, within 15 sitting days of the decision the Minister must table in each House of Parliament a statement setting out the Tribunal’s decision, the decision made by the Minister in setting that decision aside, and the reasons for doing so.304 As with the powers to exclude decisions of the Minister from merits review by the AAT, ‘public interest’ is not defined.

Rationale In his second reading speech, Peter Dutton stated:

We have seen in recent times a number of Administrative Appeals Tribunal (AAT) migration decisions that are outside community standards. This has also occurred in relation to citizenship decisions. Specifically, the AAT has found that people were of good character despite having been convicted of child sexual offences, manslaughter, people smuggling or domestic violence.

305

The Minister has a similar power under the Migration Act to set aside a decision of the AAT not to refuse to grant a visa, or not to cancel a visa, where the Minister reasonably suspects that the person does not satisfy the character test, and is satisfied that the refusal or cancellation is in the national interest.306

The AAT has been the subject of recent media scrutiny, and has received criticism from Mr Dutton regarding a number of Tribunal decisions which have set aside decisions by the Department in relation to visa

299. Refugee Council of Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 15.

300. Kaldor Centre, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 33. 301. Ibid., pp. 25-26. 302. Proposed subsection 52A(2), inserted by item 127. 303. Proposed subsection 52A(1). 304. Proposed subsection 52B(3). A statement under this subsection is not to include the name of the person affected by the Minister’s decisions:

proposed subsection 52B(4). 305. P Dutton, ‘Second reading speech: Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017’, op. cit., p. 6613. 306. Migration Act 1958 (Cth), section 501A.

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cancellations.307 A number of the decisions subject to particular scrutiny are not publicly available, due to restrictions on the types of refugee decisions which may be published.308 Despite the criticism, the number of Department appeals of AAT decisions to the courts is not high, and this is particularly the case in regards to citizenship matters. In the 2015-16 financial year the AAT has reported that all appeals lodged in the courts against Tribunal decisions were lodged by applicants.309 Between 1 July 2016 and 23 May 2017 the Department sought judicial review of five AAT decisions, all of which related to applications for a Protection Visa.310 Furthermore, only a small number of citizenship matters are the subject of appeals to the AAT in the first place: of over 19,000 applications for review of a decision of the Department lodged in the AAT in 2015-16, only 275 related to citizenship.311 However, the low rate of Departmental appeals should be considered in light of the limitations of judicial review, in which the court is confined to considering whether decisions have been made according to law, and cannot consider the merits of the decision.

Possible implications

The proposed ‘set aside’ power has attracted similar concerns from stakeholders to those in relation to the proposed power to exclude decisions from AAT review. The Law Council of Australia has raised strong concerns about the proposed reform, arguing that the AAT:

… exists to provide an important check and balance on Ministerial power. This will be substantially watered-down through this legislation.

Without checks on Ministerial power, scrutiny of Government decision making is severely curtailed. Such scrutiny is important because mistakes are made and due process not always observed.

The Administrative Appeals Tribunal was established nearly half a century ago, because the Australian Government recognised that Ministers and their Departments could make incorrect decisions on the basis of incomplete or erroneous information. 312

The Scrutiny of Bills Committee has similarly suggested that the power to override a decision by an independent decision-maker ‘poses a risk to community perceptions about the availability of independent merits review and the risk that individual cases may be unduly influenced by political considerations’.313 In its consideration of the Bill it states:

Although it may be accepted that the government has a legitimate interest in aligning citizenship decisions with community standards, the committee considers this must be balanced with community expectations relating to the integrity of the system of independent merits review. The availability of merits review in relation to decisions which may adversely affect important individual interests can be thought of as an essential part of the Australian administrative justice system. As such, aligning decisions with the Minister’s view of community standards in individual cases is not the only consideration relevant to assessing the justification of the proposed power to override AAT determinations.

314

The Kaldor Centre has suggested that the proposal will create ongoing uncertainty for applicants who may have been successful before the AAT, and raise concerns about ‘real or perceived executive influence’ over the AAT, with the changes potentially undermining public confidence in the AAT’s ability to provide an independent

307. For example, see: P Dutton, Interview with Luke Darcy and Eddie McGuire: Triple M 'The Hot Breakfast' Melbourne: 22 May 2017: Administrative Appeals Tribunal; deadline for IMAs to lodge protection claims, transcript, 22 May 2017; B Doherty, ‘Judge defends independence of courts in wake of Dutton comments’, The Guardian, (online edition), 19 June 2017.

308. S Leathem (Registrar of the AAT), Opening statement to the Legal and Constitutional Affairs Committee, Budget Estimates 2017-18, Attorney-General’s Portfolio, 25 May 2017, 309. Ibid., p. 3. 310. DIBP, ‘Response to question on notice: AAT decisions for judicial review’, BE17/003, Budget Estimates 2017-18, Immigration and Border

Protection Portfolio. 311. Administrative Appeals Tribunal (AAT), Annual report 2015-16: appendix 4, p. 129. 312. Law Council of Australia, Proposed new powers over AAT on citizenship decisions risks undermining vital checks and balances, media release,

15 June 2017. 313. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., p. 14. 314. Ibid.

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review of government decisions.315 It further argues that the mechanism of parliamentary oversight included in proposed section 52B provides insufficient accountability, with limited consequences likely to flow from the tabling of a statement in Parliament, and a lack of specificity in regards to the information that must be provided in such a statement.316

The meaning of good character

Good character is not defined under the Act. Instead, the Australian Citizenship Instructions set out a framework to guide decision-makers—including the AAT—when making assessments regarding a person’s ‘good character’.317 This includes a non-exhaustive list of factors which should be considered, including offences committed and the nature and circumstances of the offence; particular associations which may mean an applicant is not of good character; and other conduct issues, such as fraudulent interactions with government agencies, or conduct which has potentially placed children in danger or which would reason ably cause another person to be seriously apprehensive or fearful. The decision-maker must also consider whether there are mitigating factors—such as the length of time between the offence or conviction and the citizenship application, or steps taken by the applicant to rehabilitate—which mean that the applicant is of good character anyway.318

The Instructions further provide:

In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

- would a person of good character have behaved the way the applicant did

- what is there to demonstrate that the applicant has upheld and obeyed the law

- has the applicant behaved in accordance with Australia's community standards

- does the applicant share Australia’s democratic beliefs and respect its rights and liberties. 319

Proposed section 52A was also included in the 2014 Bill in a substantially similar form, with the only difference being that the proposed provision in the current Bill will also capture decisions to cancel a citizenship approval under proposed sections 17A, 19DA and 30A. The Bills digest for the earlier Bill provides a detailed analysis of the proposal and concerns raised in relation to it.320 It states:

… it is not clear why this Bill does not propose to insert a statutory definition of ‘good character’ into the Citizenship Act (to be approved by Parliament), or at a minimum and on a policy level, update the Citizenship Instructions to more accurately reflect the Government’s particular concerns with respect to persons who have been convicted of serious offences. Such mechanisms would arguably facilitate greater transparency and accountability in an area of administrative decision-making which is particularly fraught with the making of subjective value judgements.

321

Disclosure of personal information The Bill makes amendments to the Australian Citizenship Act and the Migration Act to allow for the use and disclosure of personal information for the purposes of the two Acts. Item 128 inserts proposed section 53A into the Australian Citizenship Act to provide that the Minister, Secretary or an APS employee in the Department may:

• use personal information obtained under the Migration Act or Regulations, for the purposes of the Australian Citizenship Act and

315. Kaldor Centre, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 33. 316. Ibid., pp. 34-35. 317. Australian Citizenship Instructions, chapter 9, LEGENDcom database. 318. Ibid. 319. Ibid., 9.5.4.5.4. 320. E Karlsen, Australian Citizenship and Other Legislation Amendment Bill 2014, op. cit., pp. 13-17. 321. Ibid., p. 15.

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• disclose personal information obtained under the Australian Citizenship Act or Regulations to the Minister, Secretary or an officer within the meaning of the Migration Act, for the purposes of that Act or Regulations.322

Item 134 inserts proposed section 488C into the Migration Act which is in reciprocal terms to the provision above.

The Explanatory Memorandum explains the difference between the terms ‘use’ and ‘disclosure’ within these provisions:

The exchange of personal information between officers within one Department is regarded as a use, rather than a disclosure, of that personal information for the purposes of the Privacy Act 1988 …

However, it is possible that migration and citizenship matters could be split between different portfolios in future. On this basis, a provision that permits the disclosure of personal information obtained under the Citizenship Act or the Citizenship Regulation to the Secretary or to an officer (within the meaning of the Migration Act) for the purposes of the Migration Act or the Migration Regulations is inserted.

323

These provisions were similarly proposed in the 2014 Bill. At that time, the Australian Privacy Commissioner questioned whether it was necessary for the provisions to be drafted so broadly, noting that there were already exceptions under the Australian Privacy Principles (APP) that may allow for the exchange of certain information under the two Acts. 324 The Privacy Commission also queried whether a Privacy Impact Assessment (PIA) had been undertaken during the development of the legislation.325 The Explanatory Memorandum for the current Bill is silent as to whether a PIA has been carried out.

Other provisions Clarification of status of abandoned children Section 14 of the Act provides that where a person is found abandoned in Australia as a child, they are presumed to be an Australian citizen unless or until the contrary is proved. Item 22 repeals this section, and the status of abandoned children is instead dealt with under proposed subsections 12(8) and (9).326 These provisions have the effect of clarifying the operation of the presumption applying to abandoned children. Proposed subsection 12(8) provides that a person found abandoned in Australia as a child is taken to:

• have been born in Australia and

• have a parent who was an Australian citizen or permanent resident at the time of the child’s birth, therefore satisfying the requirement for automatic acquisition of citizenship by birth under paragraph 12(1)(a).

This presumption applies unless and until it is proved that the person was outside Australia at any time before they were found abandoned (proposed paragraph 12(9)(a)), or that a parent of the person did not satisfy the requirements under paragraph 12(1)(a) (proposed paragraph 12(9)(b)).

UNHCR has questioned the inclusion of proposed paragraph 12(9)(a), in light of Australia’s obligations under the 1961 Statelessness Convention, arguing that evidence of a child being physically in another country before it is found abandoned in Australia is not in itself evidence that the child was born outside Australia.327

322. Officer is defined under section 5 of the Migration Act to include, unless specified by the Minister, an officer of the Department, an officer for the purposes of the Customs Act 1901, a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, a member of the Australian Federal Police or of a state or territory police force (including a police force of an external Territory), a person authorised by the Minister to be an officer for the purposes of the Act, or a person included in a class of persons authorised by the Minister to be officers for the purposes of the Act.

323. Explanatory Memorandum, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017, op. cit., p. 58. 324. Office of the Australian Information Commissioner, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014 [Provisions], op. cit., [submission no. 7]. 325. Ibid., p. 2. 326. Inserted by item 20. 327. UNHCR, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation

Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 9.

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Adoption Item 21 amends the requirements for automatic acquisition of citizenship by adoption, under section 13, by inserting a new requirement that the adoption process must have commenced when the person was aged under 18.

Power to make legislative instruments Section 54 currently provides that the Governor-General may make Regulations prescribing matters as required or permitted by the Act, or which are necessary or convenient to carry out or give effect to the Act. Item 130 inserts proposed subsection 54(2) which states that the Regulations may confer on the Minister the power to make legislative instruments. This provision was contained in the 2014 Bill in the same form, with the Department explaining:

Such instruments would be used to specify matters that require regular updating, such as the places, currencies and exchange rates for payment of application fees. Currently these matters are specifies every six months in an instrument under the Migration Act; each time that instrument is issued it is necessary to update a reference to the instrument number in the Citizenship Regulations.

328

The Scrutiny of Bills Committee has questioned the necessity of this broad power, stating:

… while the use of delegated legislation in technical and established circumstances (such as the payment of fees) is not controversial, it is unusual for primary legislation to provide for the making of a regulation which, in turn, provides a Minister with a wide power to make further delegated legislation for unspecified purposes. 329

328. DIBP, Submission to the Senate Legal and Constitutional Affairs Constitutional Affairs Committee, Inquiry into the Australian Citizenship and other Legislation Amendment Bill 2014, op. cit., p. 20. 329. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., p. 15.

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Concluding comments This Bill proposes to make various changes to Australian citizenship, including the introduction of a more restrictive set of eligibility criteria for automatic and conferred citizenship. The measures contained in the Bill are designed to ‘strengthen Australian citizenship’.

However, the Bill raises a number of matters worthy of further discussion.

It has been a bipartisan objective for a number of decades to promote Australian citizenship to migrants living in Australia as settlers. The 2015 consultation report that the Government has promoted as a catalyst for the Bill clearly links high citizenship take-up rates with successful Australian citizenship policy. For example, Senator Fierravanti-Wells and former Immigration Minister Ruddock write, ‘four in five migrants who settle in Australia take out Australian citizenship-a measure of its success and importance’.330

Yet as a number of submissions note, the measures in this Bill will restrict citizenship.331 No evidence has been provided by the Government in relation to assessing how many people may be affected by these changes, either in the short-term or into the future. How many people will the Bill prevent from becoming Australian citizens? Is it acceptable for an aspiring citizen to live indefinitely as a permanent resident because their English does not meet ‘competent’ level?

In addition, a key concern raised by stakeholders is that the Bill simultaneously expands Ministerial discretion in relation to the granting and revoking of citizenship, while placing greater restrictions on the merits review role of the AAT. The changes proposed by the Bill will also result in key aspects of citizenship eligibility being set out in delegated legislation rather than the Act itself. Details of the new English language and ‘integration’ requirements, as well as the content of the Australian Values Statement, will be determined by the Minister via legislative instrument. This means that there remains uncertainty about the exact eligibility requirements which applicants for citizenship will be required to meet. The Minister will also have greater discretion to exempt applicants from residence requirements, refuse applications of a minor on character grounds, as well as to cancel approvals before an applicant takes a pledge.

The Bill further confers on the Minister a number of discretions to be exercised ‘in the public interest’, including the power to revoke citizenship in cases of fraud or misrepresentation, exclude decisions from merits review and set aside certain decisions of the AAT. Stakeholders have raised concerns that, in the absence of statutory criteria or definition regarding the meaning of ‘public interest’, these broad powers both increase the possibility of arbitrariness in the granting and revoking of citizenship, and threaten the transparency and accountability of executive decisions.332

330. C Fierravanti-Wells and P Ruddock, Australian citizenship: your right, your responsibility, op. cit., p. 19. 331. For example, see: AHRC, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., p. 4; Mares, op. cit., p. 1.

332. For example, see: Castan Centre for Human Rights Law, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], July 2017, [submission no. 437], pp. 4-5; Kaldor Centre, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [Provisions], op. cit., pp. 25-26.

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