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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
16/07/2007
Australian Citizenship Amendment (Citizenship Testing) Bill 2007

CHAIR —Thank you for the submission you lodged with the committee. Do you wish to make any amendments or alterations to that submission?

Prof. Rubenstein —No.

CHAIR —Would you like to make an opening statement?

Prof. Rubenstein —Thank you for the opportunity to appear here today to present to my written submission. I have prefaced the written submission with several comments that I will now confirm for the record. Between November 2004 and 30 June 2007 I was a consultant to the Commonwealth of Australia represented by the Department of Immigration and Multicultural and Indigenous Affairs—later renamed as the Department of Immigration and Citizenship—in relation to its review and restructure of the Australian Citizenship Act 1948, which resulted in the Australian Citizenship Act 2007. This act came into force on 1 July this year. I want to stress that I have not been involved in any way in the amendment bill to that act. I am commenting completely on my own initiative on the questions that the committee may be considering in relation to that bill.

In my written submission I set out several aspects in my comments which relate to the different ways in which the Senate committee should review this bill. One is the basic policy aspects to this bill, because this clearly is an amendment to the existing act—an amendment to the way citizenship has been conferred since it was introduced on 26 January 1949. So it is a fundamental policy issue that is at stake in terms of the question of citizenship testing and of the nature of citizenship testing. I am not in favour of this form of testing as a way of determining conferral of citizenship—that is, citizenship for those who are not automatically citizens by virtue of birth or descent or by the other forms of automatic citizenship in Australia. In my written submission I have set out reasons that deal with the purposes that are outlined in the government’s policy behind the bill, such as improving individuals’ understanding of aspects of Australian life, issues to do with Australian citizenship and educational levels in relation to language. My personal view is that this testing is not the best way in which to improve those aspects of citizenship. However, if something like this were to be introduced, I believe that the issues at stake are not only issues for citizens who have been conferred with citizenship but are also fundamental questions about the identity and the membership of the entire Australian community. If something like this is to be introduced, there should be a more fulsome review throughout Australia involving all Australian citizens. It should include their knowledge of Australian issues as well as Australian citizenship issues, which, for the most part, I think most Australian citizens are not very familiar with. An example that I have given in my paper is that, if it is seen as so fundamental to Australian citizenship, perhaps it is something that everyone should be doing before they place their names on the electoral roll.

I also made some comments about the issues paper that was the basis of this new policy development. I raised some problematic issues in relation to an approach to Australian citizenship that includes a statement that Australian citizenship is a privilege, not a right. I explained that it is not such a clear issue that it can be stated in such black-and-white terms. I also tried to highlight that the legal consequences of citizenship, which people will be required to answer questions about, are similarly not easy and straightforward. So there are some fundamental questions about how one goes about testing those aspects.

Finally, there is the legal structure, which is the most significant legal aspect that I will speak on this morning. As senators can see, this is shell legislation which specifically enables the minister to set up a framework for testing. When it was originally proposed I made some public comments about the fact that the existing act, as it is currently, has a similar requirement and that in order to be conferred Australian citizenship the law says that you need an adequate knowledge of the rights and responsibilities of Australian citizenship and a basic knowledge of the English language. There is already a requirement for those basic notions. The testing framework has been specifically introduced into this legislation in order to strengthen the legal framework for having a testing regime such as this policy change implements. But I am not entirely sure that this shell framework would be sufficient to support a test which went, perhaps, into areas that some would contest as to whether they are fundamental in terms of knowledge of Australia and the rights and privileges of Australian citizenship. For instance, there is nothing in the legislation which sets out the sorts of questions that would be relevant, because that would be difficult in the main structure of the act. But that leaves open to challenge, depending on the nature of the questions—and I do not have them before me—whether those questions fit within the formal structure of the act. Those are open questions, ultimately, until we are given the range of questions that will be involved in that framework.

CHAIR —Thank you.

Senator KIRK —Thank you for your submission. I want to ask questions on the point you were just talking about. I am assuming that you were talking about section 13 of the act and the provision that talks about the criteria, which includes understanding the nature of the application. Is it that section?

Prof. Rubenstein —That is right. That is the former act now, because the new act came into force on 1 July. But the equivalent of section 13 is section 21 of the new act, so application and eligibility for citizenship, which was in section 13, is now in section 21.

Senator KIRK —And it reads the same?

Prof. Rubenstein —It mirrors it exactly. It reads:

2(f) has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of the Minister’s decision on the application;

and:

2 (e) possesses a basic knowledge of the English language ...

Senator KIRK —So the point that you are making there is that, depending on the nature of the questions, the questions may not come within the scope of that provision.

Prof. Rubenstein —That is right. There are still administrative law questions that would need to be considered in terms of whether the questions fit within the scope of that provision.

Senator KIRK —And you cannot make any sort of assessment of that until you see the questions.

Prof. Rubenstein —That is right. There might be a question as to whether it is appropriate to ask a question about Australian cricket, for instance, and whether that is properly within the purview of an adequate knowledge of Australia. It raises uncertainly about the legal validity of the testing. This new amendment act will strengthen the legal validity of testing by making a specific provision in relation to the minister having the capacity to issue tests according to the act, but the content of the tests would still be open to legal scrutiny as to whether they properly fulfil the sections that set out the criteria for Australian citizenship.

Senator KIRK —So there is no proposal to amend the new section 21.

Prof. Rubenstein —This act that we are currently looking at is an amendment act to section 21.

Senator KIRK —Yes, but it just adds in provisions rather than changing the existing text.

Prof. Rubenstein —It adds in provision 21(2)A, which says that those provisions that I just read out to you are taken to be satisfied if, and only if, the minister is satisfied that the person has before making the application sat a test approved in a determination under section 23(A) and successfully completed that test worked out in accordance with that determination. So it is giving the minister the power to make a determination about the tests. In the same way, the minister determines when one has successfully completed the test. Then there is an extra provision, 23(A), which says that the minister must by written determination approve a test for the purposes of section 12(2)A. It is providing extra legal certainty for the act to make provision for a test.

There was some uncertainty, which I have raised before, as to whether sections 21(2)(e) and (f) were sufficient in and of themselves to allow the government to introduce testing. Theoretically they could have, as an administrative measure, to determine whether section 21(2)(e) and (f) had been satisfied. This government has decided it does not want to determine the satisfaction of those two provisions by an administrative process; this is now making it a legislative process. There is still a question about the strength of that legislative framework if the subject matter of the test is such that it goes beyond the power. Ultimately, the power is contained by the framework of the act, which is to provide for the conferral of Australian citizenship. If one of the test questions is ‘How many square metres is Australia?’—or something one would question as being relevant to and appropriate for the purposes of determining Australian citizenship—then there is a question as to whether it would be beyond the power.

Senator KIRK —I am also interested in your views about the scope for review of decisions. On page 5 of your submission it says that section 52A allows for reviews. I am assuming 52A might now be a different section—

Prof. Rubenstein —Yes, that is right. Thank you.

Senator KIRK —and the AAT review of the act is maintained in its current framework. Could you elaborate on that?

Prof. Rubenstein —Yes. It is still section 52 of the new act, which is ‘Review of decisions’. The provision now is that you can apply to the Administrative Appeals Tribunal for review of decisions. It refers to a decision under section 24 to refuse a person becoming an Australian citizen. Section 24 is, in effect, the decision in relation to the conferral of citizenship under section 21(2), so there is a provision still for review of those decisions. So if an individual is denied citizenship there is the AAT review. Arguably, if the AAT stands in the shoes of the decision-maker, it can make that decision. However, if the threshold for being able to become a citizen is the successful passing of a test and that person clearly has not passed the test, then there would not be much review for the tribunal, perhaps beyond making a statement as to whether those questions, in their view, satisfy basic understandings of Australian citizenship. But beyond that, the tribunal would be somewhat restricted in its review.

Senator KIRK —Would it be at that point that the AAT might make a decision as to whether the questions come within the scope of the act or if that might be a matter for judicial consideration?

Prof. Rubenstein —It would ultimately be a matter of judicial consideration. The act sets out that paragraphs (2)(d), (e) and (f) are taken to be satisfied ‘if, and only if, the minister is satisfied that the person has sat an approved test and has successfully completed that test’. So it is restrictive in relation to the minister having to be satisfied that an approved test has been passed. It would need to be a more fundamental challenge to the legal validity of the test in light of the framework of the act. I think the tribunal would be rather constrained in relation to that.

Senator HURLEY —Would you be happier if the test were made a legislative instrument so that it would be disallowable by the parliament?

Prof. Rubenstein —That would certainly provide for greater scrutiny of the testing in relation to the breadth of questions and whether they necessarily reflect the general community’s belief in the matters that are relevant to Australian citizenship. If the testing framework were open and if there was consultation and general community acceptance of the range of tests—accepting that a test is necessary, which I would question in the first place—and certainly if the framework enabled greater scrutiny—that would be a positive statement.

Senator HURLEY —In relation to the more general question of whether there should or should not be a test, one of the justifications for introducing the test has been that many other countries have had the test in for a while or have recently introduced it. What is your response to the way they have operated?

Prof. Rubenstein —I do not have detailed knowledge of how successful those tests have been, but I think they would be a reflection of a global trend post September 11 in relation to concerns about legislative responses to terrorism. The fact that other countries have introduced this form of testing does not necessarily mean it is the best way forward. It is certainly important for Australia always to take note of what other countries are doing. You would find in the public records in those countries similar concerns about the effectiveness of the frameworks for encouraging a response to a greater sense of the values of the nation-state that an individual is seeking to become a part of. Citizenship testing is a very superficial way in which to exhibit some form of statement about wanting to make a difference in encouraging greater unity and commitment to the country in which a person is becoming a citizen. Passing the test does not necessarily evidence a sense of cohesion. It is just a matter of learning the questions and being familiar enough to be able to answer them, and it does not necessarily represent a greater commitment to the nation-state that an individual is becoming a part of.

Senator HURLEY —You do not think that having formal testing and procedures elevate citizenship to a greater status?

Prof. Rubenstein —It is certainly a very interesting question and one that I deal with a little in my book on Australian citizenship law. There are different views about what we call ‘value-adding citizenship’. If you make something more exclusive it is arguably meant to be of greater value, but in some ways there is the argument to the contrary: by making it more exclusive you discourage a sense of desire to become a citizen in certain circumstances, and if your aim is to be inclusive and encourage a commitment to the greater community sometimes there are less overt ways in which to do that—for instance, encouraging knowledge of Australian values is fundamental. I am questioning the framework that signifies an acceptance of those things and I do not know that it necessarily adds value to citizenship in the sense that you describe. There are fundamental policy questions of how you make citizenship valuable, but exclusivity is not necessarily the only way: there are other ways of enhancing the value of something without making it exclusive.

Senator HURLEY —In the minister’s second reading speech he said:

Each test is expected to include three questions on the responsibilities and privileges of Australian citizenship.

The rest would be drawn at random. Again, we are handicapped by not knowing what kinds of questions they might be. How might you determine which of the three questions would best outline the responsibilities and privileges?

Prof. Rubenstein —In my written submission I have tried to also raise that the rights and responsibilities of citizenship are not always entirely clear or distinguished from the rights and responsibilities of presence in Australia. Anyone who is present in Australia is subject to the laws of Australia. The Defence Act is a good example. One of the current statements on the Australian citizenship website is that one of the consequences of citizenship is you may be called upon to defend the country in time of war, but the reality of our legislation at the moment is that anyone who resides here for a minimum of six months is liable under legislation to be called up to serve in the defence of Australia. Citizenship is not the basis on which that becomes a liability in Australia. Those distinctions are examples. Currently, the responsibility and the right to vote are consequences of Australian citizenship. The bottom line is that nothing is constitutionally entrenched in Australian citizenship, so any of the rights and responsibilities that we talk about of Australian citizenship are purely legislative rights that can be amended at any time.

Knowledge of the current legislation is useful, but it is not necessarily always straightforward. Under Australia’s Commonwealth Electoral Act there are members of the community who are not Australian citizens who have a responsibility to vote: the British subjects who were on the electoral roll before the changes to the Electoral Act which took off British-subject status. So there are non-citizens in Australia who currently have a responsibility to vote if they are still on the electoral roll.

There are Australian citizens who have been disenfranchised by the changes to the Electoral Act at the end of last year—for instance, those who are prisoners at the time an election is called or Australians living overseas who, by virtue of going overseas, lose their place on the electoral roll and, if they have not followed the procedure set out in the Electoral Act, also lose their right to citizenship. So the legislation is not always entirely clear about what the rights and responsibilities of citizenship are. Again, that is an example of where the answers to the questions could be theoretically challenged. If one of the questions was whether you had a responsibility to defend Australia, there would be complications in relation to that as there are in relation to voting. But in the basic terms of the current framework, voting is one of those rights that we, on the whole, distinguish as a right of citizenship, save for those exceptions. The right to travel in and out of Australia under the Migration Act is currently regulated around the status of citizenship. They are two examples, but I think it would be hard to go for more than two in relation to those particular questions.

Senator CROSSIN —Do you have any evidence that suggests that this might discourage people from taking citizenship?

Prof. Rubenstein —That is a very important question, because the Department of Immigration and Citizenship in its various forms over the years has put a lot of effort and attention into encouraging people to become Australian citizens. Public exposure to advertising that encourages people to become citizens has been very strong and I think very effective. You could ask the department about the actual statistics, and I think it would be important to ask the department that question because they would have the knowledge. My understanding is that the largest group is British citizens who have not taken up Australian citizenship in the past. I certainly think—and this is really more my understanding of human nature—that a testing regime is something most people feel uncomfortable about in any context. Even as a professor, when I walk into the examination halls of my students I still get the feelings that I used to get as a student walking into those halls. I think any framework for testing is one that causes anxiety. I think many people around the country who are Australians by birth would say that they are not entirely clear as to whether they would pass these tests, so surely anyone who is not yet an Australian citizen would have some anxiety. If there were any equivocation as to whether they wanted to become a citizen, I think this is something that would add to their questioning of their desire to become an Australian citizen. My personal sense is that this would be more discouraging than encouraging. I anticipate a drop in the number of applications for citizenship once the test is introduced.

Senator CROSSIN —I put it to you that that might be the case if you were a non-English speaker. I imagine the test would be significantly easier if you were emigrating from the UK, Ireland or America. Do you believe it will encourage more English-speaking migrants to become citizens?

Prof. Rubenstein —I think the discouragement would be across-the-board. I do not think language would be the issue in the anxiety about being able to answer questions correctly. There are many individuals of high academic performance who have questioned whether they would be able to answer the questions successfully because of the range of questions that have been mooted in the press. Again, we really need to see the questions to have a stronger sense of the answers to these things, but my basic, threshold answer is that all people will be less likely to want to take up citizenship by virtue of having a test than they would if there were no test. I think the language issue is relevant to that answer but not entirely conclusive.

Senator CROSSIN —So you do not believe that people wanting to emigrate from the UK, if they got a booklet and had to study it, like you do for your drivers licence, would find it a whole heap easier than would someone who might be coming, for example, from Iran?

Prof. Rubenstein —I am not entirely sure what the provisions are in relation to translations of the questions and whether the questions will be made available in languages other than English for preparation and study. Perhaps they are issues that might be relevant to your questions.

Senator PARRY —I can relate to you returning to school and shuddering. I walked past the disciplinarian’s office of my school a week or two ago and I still shuddered. If the mix is right between the methodologies of the questions, how they are put to potential applicants for the test and the style of questions, do you feel as though the test will then be a worthwhile and valid thing to do?

Prof. Rubenstein —My comments are in relation to whatever style of testing there is. Any form of formal testing has the problem of anxiety no matter how accessible or easy that framework is because people have a sense of anxiety over any formal form of testing. Every effort to make that as palatable as possible for people who have that anxiety is better than not having it at all. The formal framework for testing raises those issues.

Senator PARRY —You could probably argue though that the mere fact of applying for citizenship has its own level of anxiety, with or without a test.

Prof. Rubenstein —Perhaps, but the legislation is clear about the criteria and there is a framework in place for the learning of English that has been important for the interview process for citizenship. That is a fair comment. Any framework where you have to meet someone for an assessment in order to be successful has a level of anxiety, but you certainly up that anxiety if there is a formal test involved, as opposed to a range of questions. But that does not take away from encouraging people to have knowledge of these areas. In the process of applying people can be given information about citizenship for the purpose of the interview, which is the current framework for satisfying the criteria under the current act. There could certainly be extra effort to ensure that as much information is given to an individual in the process of applying for citizenship, but the question of testing is separate to that.

Senator PARRY —You would not regard it as a right of passage. It has some form of degree of difficulty, however minimal that degree of difficulty may be.

Prof. Rubenstein —The current framework satisfies that element—it has those basic criteria so there is currently a right of passage in a way. It is a question of whether you up that right of passage to one of formal testing.

Senator NETTLE —Thank you for your submission, it raises lots of important issues and views. In your submission you talked about the objectives that the government is seeking to achieve and what you think might be some of the best strategies for achieving them. Can you expand on what you think would be effective strategies for trying to achieve the government’s objectives of people having a clear understanding of what citizenship means?

Prof. Rubenstein —I think the distinction between automatic citizenship and conferred citizenship should be lessened. The emphasis is entirely on those who are conferred citizenship but the overall objectives should be for all Australians. The evidence around the world about home-grown terrorists is a good example of that. As a country we want to encourage all Australians, no matter how they become citizens, to have a greater understanding of the values and frameworks for decision making and participation in our Western, broadly democratic framework. These are things that should be part of schooling for everyone going to school in Australia. That would be one way of achieving the objective, and it would be a much more holistic way than one that targets those who are becoming Australia citizens. For those who are being conferred citizenship, providing a range of mechanisms for people to learn this material would be useful. Just as there are English courses available for individuals, courses about these values could be made available for people who are becoming citizens without there necessarily being a formal framework for it at the end, so that individuals are put in the educational framework that we want for automatic citizens to be enabled to know this sort of information. Those would be broader strategies that would achieve the government’s objectives without singling out those who are seeking to become Australia citizens, without making it more exclusive and therefore without discouraging people to become Australia citizens and to be included in the Australia community.

CHAIR —In terms of the legality and the constitutionality of the legislation—and you have referred to that in your submission—it is section 51(xix) and section 51(xxvii) under the Constitution where the Australian government has power over the naturalisation of aliens, immigration and emigration. So there is no doubt in your mind that that is the head of power under which the bill is put forward. But your concern relates to section 21(2), and I want to go through that with you and the reasons why. You have outlined that in answer to Senator Kirk at least in part. I want to drill down a little further there. Do you accept that the minister has the discretion and has to be satisfied that the person has met those tests?

Prof. Rubenstein —This act provides for the minister to have that power, and I agree with you that the minister is empowered under the constitutional framework in relation to aliens and naturalisation. Arguably, there would also be the implied nationhood power, which would give cause for this type of legislation. I think it is more of an administrative law question that I am raising than a constitutional question in terms of the range of issues that would be validly within the minister’s discretion for making a decision under this act. If the minister decided that in order to pass the test you needed to have blue eyes, then we would see that as clearly unlawful because there is nothing within our understanding of membership of the community where a person’s racial or physical attributes are relevant to membership of the community. So that would be an example. If the test included that one of the issues to do with whether you have successfully completed that test was that you had blue eyes, then there would clearly be a legal challenge to the legal validity of that.

CHAIR —But that would be outside the scope of the act. Your concern relates to the adequate knowledge of Australia, and so you are suggesting that it is possible that one of the questions put forward is outside of the scope of the adequate knowledge of Australia. Is that your contention?

Prof. Rubenstein —Yes, that is right; that there are still legal questions about what would properly fall within that terminology.

CHAIR —That is what I am trying to get clarity on.

Prof. Rubenstein —Yes.

CHAIR —If you had the resource book with you today and you looked through all those questions, you would say that there would be no legal problem whatsoever if those questions met your view of what is adequate.

Prof. Rubenstein —Yes or, ultimately, it has to be a judge of a court if there were any questions. But, in terms of my own expertise and understanding, it would be easier to say the test is one that fulfils that part of the act.

CHAIR —Thank you for that. In terms of the legislative instrument argument that has been referred to in your submission, do you accept the fact that the government’s intention and objective is not to require rote learning but rather an adequate knowledge of Australia, a basic knowledge of English language and so forth? As a result, my understanding is that they want to rotate some of those questions from time to time. So if you made it clear that it has to be a legislative instrument, the onus is on the government to regularly change the questions—every couple of months or whenever; we do not know exactly how often they want to do it. They would have to introduce a legislative instrument which could be disallowed. So that is your suggested approach. I am just getting clarity on that.

Prof. Rubenstein —That would be preferable. There would be nothing to stop the government introducing 500 questions from which 20 would be chosen. That would be a much greater range of knowledge that a person would have to study up on in anticipation of a test. Whether that just encourages rote learning of 500 questions as opposed to 20 is another issue, but I think any form of testing has to have an element of rote learning. It comes back to the policy objectives of whether testing is the best way of encouraging a greater understanding of—

CHAIR —Sure, but in terms of rotating the questions, would it be legally and legislatively burdensome and onerous to keep bringing in new legislative instruments every once in a while to ensure that that becomes a legal document?

Prof. Rubenstein —If we look at the other ranges of legislation with their regulations, which have reasonably regular changes that require parliamentary scrutiny, I do not think this would be too dissimilar to that.

CHAIR —Okay. I want to ask you about the overseas experience. With your history and background, which is substantial in this area—which we acknowledge and I want to thank you for that—you indicated that some of the countries have introduced testing since September 11. Can you advise us which countries they were? I am aware that some countries have had it for decades, but others are more recent. Can you give us some updated briefing on those countries that have introduced it since 9-11?

Prof. Rubenstein —I am afraid my expertise is not as broad as knowing all of the different citizenship testing regimes in existence since that time. The comments I have made are in relation to the responses to some of the legislative amendments in countries like Australia, such as in Canada and the US, which have been critical of those legislative changes. It is not necessarily in relation to citizenship testing; it is the whole breadth of security changes. I am afraid my expertise does not include a detailed knowledge of all of those and I cannot answer that question.

CHAIR —Has any country introduced citizenship testing since 9-11 as a result of 9-11?

Prof. Rubenstein —We are certainly an example of that, but beyond Australia I could not pinpoint any specifically. But I could get back to the committee on that.

CHAIR —If you had further advice on that, we would happy for you to take that on notice.

Prof. Rubenstein —Certainly.

CHAIR —Can you share any experiences you had in those other countries—US, UK, Canada, Korea—where they do have testing, your views as to the pros and cons of how it works?

Prof. Rubenstein —Similarly, it is not an area I had much interest in before the introduction of this amendment bill. I cannot assist you on that, I am afraid.

CHAIR —That is fine. Finally, do you acknowledge that there has been or there is community support for a citizenship test? There was a wide range of consultation—over 1,600 submissions last year—after the September release of the government discussion paper. Do you acknowledge there is majority support for it or you do not acknowledge that?

Prof. Rubenstein —I am not in a position to acknowledge it because I have not looked at all of those responses. I did see that there was a government response to those responses, and I think there was some question as to whether that sufficiently represented the entire views or whether the community organisations were grouped with individuals. I remember hearing some question marks about those, but again I have not looked at those in great detail.

CHAIR —No problem. Thank you very much for your evidence today.

Prof. Rubenstein —Thank you.

[11.08 am]