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Legal and Constitutional Affairs Legislation Committee
10/11/2014

REILLY, Associate Professor Alexander, Director, Public Law and Policy Research Unit, University of Adelaide

Evidence was taken via teleconference—

Committee met at 09:58.

CHAIR ( Senator Ian Macdonald ): Welcome. I declare open this public hearing of the Senate Legal and Constitutional Affairs Legislation Committee for its inquiry into the Australian Citizenship and Other Legislation Amendment Bill 2014. The committee's proceedings today will follow the program circulated. These are public proceedings being broadcast live via the web. The committee may agree for any request to be heard in camera. If you want to do that, Professor, let us know. In giving evidence, witnesses should be aware they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and any such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee. If you object to answering a question, you should state the ground upon which the objection is taken and the committee will determine what to do with that. If the committee insists on an answer, the witness may request that the answer be given in camera.

Professor Reilly, thank you very much for joining us. We have the written submission from your unit, which we have numbered as submission 6. If you wish to make any amendments or alterations to your submission, now is the time to do it. Otherwise, I invite you to make a brief opening statement and then we will ask you some questions.

Prof. Reilly : I work in the law school at the University of Adelaide and am the director of the Public Law and Policy Research Unit. I represent the research unit in this submission. I am the sole author of the written submission and the remarks I make are my own views; however, other members of the research unit have discussed these issues and have read and endorsed the submission.

I would like to start with a few general observations about citizenship. We submit that citizenship is not just a privilege, as is suggested in the submission of the Department of Immigration and Border Protection. The preamble to the Australian Citizenship Act states:

… Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

So we submit that we should, as a rule, be encouraging Australian residents to become citizens. The primary right of citizenship is that a citizen can reside in Australia as a member of the Australian community until their death and have complete security of residence. It is important that the security of citizenship is equal for all Australians whether they are automatic citizens or citizens by application and conferral. We only want one citizenship in Australia. Finally, there is an important distinction, we submit, to be maintained between migration control and citizenship. Migration is the point at which people with no necessary connection to Australia are granted permission to enter and reside in Australia as visitors, workers or family members, and people are rigorously checked upon entry. But, by the time a person is applying for citizenship, they have a strong connection to Australia and citizenship cements this connection.

With those general points in mind, I will speak very briefly to the points in our written submission. Point 2a in the unit's written submission discusses issues of character. There are many provisions in the bill which relate to character and these are used to either deny citizenship or delay citizenship applications in circumstances that do not currently arise under the act. In our submission, the new character provisions are unnecessarily broad. In the written submission, we discuss concerns about extending them to minors, but, more generally, there are many offences against Australian law which do not reflect on character necessarily or, if they do reflect on character, there are good reasons to encourage permanent residents to take up citizenship despite minor concerns over their character, even if those issues of character would have prevented the same person migrating in the first place.

In point 2b in our written submission, we discuss the exceptions to automatic citizenship. As the committee will be aware, section 12(1) of the Australian Citizenship Act currently states:

A person born in Australia is an Australian citizen if and only if:

…   …   …

(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

The proposed new sections add various exceptions to this general rule. It is important to put in context how important birth has been to citizenship in Australia in the past. Until 1986, birth was sufficient for automatic citizenship. The new changes affect, it seems, two groups of people. It affects children of asylum seekers who are found to be refugees. These would be refugee children born when their parents had not yet secured a substantive visa and were designated as unlawful citizens at that point. It also affects children born to persons who are here illegally and have kept out of sight of the authorities. This was the rationale for introducing the exception in proposed section 12(4).

There is no question that lying underground and staying in the country illegally is fraudulent and that that is a practice that should be prevented as much as possible, but we submit that there are ways of dealing with the issue of illegal immigration other than by affecting a core principle of citizenship. For us, the question is: should the immigration status of parents affect the citizenship rights of innocent children? This is a philosophical question. What are the fundamentals of membership in Australia? In our written submission, we submit that a child born in Australia and spending their formative years here is irrevocably Australian.

There is also a constitutional question: when is someone a nonalien under the Constitution? This determines the extent of parliament's law-making power under section 51(xix), regarding naturalisation and aliens. In the Singh v Commonwealth, two High Court judges said that birth was enough for non-alien status. The majority of five judges said it is not enough, but they still stated that there must be some limit to the circumstances in which parliament can exclude someone from citizenship. I will briefly quote from Chief Justice Gleeson:

… Parliament cannot, simply by giving its own definition of "alien", expand the power under s.51(xix) to include persons who could not possibly answer the description of "aliens" in the Constitution.

We would submit that, having been born in Australia and being resident here for 10 years, there is a good chance that constitutionally that is enough for someone to be a nonalien and a status that parliament cannot take away.

Point 2c in our written submission relates to revocation. We submit that, in relation to revocation, the bar should be set high for what fraud is sufficient as it must be weighed against the fundamental value of the security of citizenship. Once you start broadening the net so that it covers not only fraud in the citizenship application and that the fraud need not be serious or personal to the applicant, it begins to have serious implications for the security of citizenship. We submit that there is quite a big change being made here from the current provisions on what constitutes fraud for citizenship purposes.

Point 3 in the written submission relates to ministerial decisions and merits review in the Administrative Appeals Tribunal. In relation to this, the act does two things. First, it makes some decisions relying on the public interest discretion not subject to merits review. We make two points on that. One is that citizenship decisions are the types of decisions that should involve merits review. They do not fit the description of decisions made in a high political context. The kinds of decisions where we exclude merits review are things like when there are threats to Australia's defence and security and decisions need to be made in a hurry—so really it is inappropriate to have a long, drawn-out decision-making process involving merits review. But that does not apply to citizenship decisions. There is no hurry in these decisions. We can take our time to get them right. The second point is that decisions are put into the minister's domain if they relate to public interest. The public interest standard is extraordinarily vague. It is not clear why it is a standard that should be determined purely by the minister. In other circumstances, the Administrative Appeals Tribunal is required to apply that standard. In fact, it is a standard that requires much better articulation to avoid arbitrary decision making.

The second thing that happens in relation to review is that it confers a power on the minister to overturn decisions of the Administrative Appeals Tribunal when decisions on character or identity grounds are made in the public interest. In our submission, this undermines the whole point of merits review. If the AAT makes a decision that can simply be overturned by the minister, you have to start questioning why we have a merits review process at all. The justification is that decisions that the minister has not agreed with and cannot appeal have occurred in the past. We submit that the answer to that is not to take away merits review but to give direction to the Administrative of Appeals Tribunal on the appropriate way to apply the public interest test.

CHAIR: Professor, thank you very much for your submission and for your very lucid and concise précis. I would like to discuss a couple of things with you but before I passed to the deputy chair, I saw in the submission somewhere, perhaps from the department, where a number of AAT decisions are listed which certainly do not pass the pub test. I think what the act is trying to say is that where these decisions are clearly contrary to public expectations something has to be done. Can you elaborate for us: is it possible to give directions and how specific can they be? The second question is: if the bill is passed and the minister makes decisions, is there any way those decisions could be appealed by reference to the courts on some of the prerogative writs or otherwise?

Prof. Reilly : In relation to the first question, it is quite common for the Merits Review Tribunal to make decisions the ministers do not like. One response to that is commonly that ministers will say, 'You have misinterpreted what we mean by certain terms in regulations.' The executive can then make directions saying, 'These are the criteria or these are the things to be taken into account in determining what is the public interest.' Over time, what happens is that merits review decisions are made. If they are contrary to the way the minister understands the criteria to be applied, there is a conversation effectively between ministers and tribunals where the minister gives directions. The only limit to the giving of directions is that they must be consistent with the interpretation of the act which gives power to make those directions. If, for example, the minister were to give an interpretation of the term 'public interest' and directions to the tribunal that were contrary to the meaning of 'public interest', that can be challenged going forward to the courts because that would be a misinterpretation of the act.

If you cut out merits review and so you just have a decision of the minister, there is still the possibility for judicial review of those decisions. However, judicial review is a very different process and the only grounds for judicial review are if there is actually an error of law. So it is not whether the decision was the right decision; it is just that the decision was legally made and the kind of grounds for illegality are things like it was so unreasonable that no decision maker could have made it, so it is a very high threshold, or there has been some error in the procedures so procedural fairness was not given, those kinds of grounds.

Senator JACINTA COLLINS: Most of my questions will probably ultimately go to the department but thank you for your very concise submission, Professor. One issue on which I wonder whether you know more information is the period involved for the children of those designated unlawful non-citizens before they would normally attract a protection visa. What sort of period are we looking at?

Prof. Reilly : Are you talking about when someone arrives in Australia seeking asylum and they make an application for a protection visa?

Senator JACINTA COLLINS: I am looking at the 10-year residence requirement and what period we are looking out for the children of such people.

Prof. Reilly : I did try to trace through a few scenarios in relation to this. I think the most common scenario is going to be that someone has come to Australia seeking asylum and that, while they are in the process of making an application for a protection visa, a child is born in Australia. Time frames for how long it takes to get a protection visa change decade by decade. Certainly over the past three or four years the time period has been extremely long and in fact nearly no-one is getting a permanent protection visa now. As you will know, there is legislation before the parliament looking to bring in temporary protection visas. There are a lot of people in the community who have been waiting for many, many years to get a substantive visa, be it a permanent protection visa or a temporary protection visa. These children then will be unlawful noncitizens all through that period, and it is only when a substantive visa is granted that they would then be no longer the children of unlawful noncitizens. My reading of the provision is that it does not matter whether it is a long time or even just a few days; as soon as there has been a period where you are the child of a person who is an unlawful non-citizen, that 10-year period does not apply anymore, so you cannot get automatic citizenship. It does not matter if it is nine years and six months and then you go another six months after that to be 10 years as the child of someone who is not an unlawful noncitizen; it just cuts you out from the automatic citizenship on the basis of a period of the parents being unlawful.

Senator JACINTA COLLINS: So that I have this clear in my own mind, we are looking at a scenario here where the protection visa is granted and then the 10-year period would start accruing. It does not completely rule people out, does it?

Prof. Reilly : My reading of the act is that it is not that the 10-year period starts when you become lawful; it is just that there is a 10-year period from the time of birth until you are 10 years old. But if you have been unlawful at any time in that period, then you are excluded from automatic citizenship. So, in the scenario of someone for whom a protection visa was granted when the child was four years old, it is not that when they turn 14 they can then apply for automatic citizenship; they would have to be applying for other types of citizenship—citizenship through conferral. They just are not eligible for automatic citizenship at all.

Senator JACINTA COLLINS: All right. That is clear in my mind now.

Prof. Reilly : That is my reading of the bill.

Senator JACINTA COLLINS: I will ask the department later in the day. That is the only question I had, thank you.

CHAIR: Going back to the issue of the AAT, the explanatory memorandum indicates three significant decisions outside community standards where the AAT found that people were of good character despite having been convicted of child sexual offences, of manslaughter and of people smuggling. Is the minister able to give directions? Obviously they are the extreme cases, but none of us as Australians would want to accept as fellow Australians people who had committed those sorts of offences if we did not have to. Is the minister able to give directions that would cover those sorts of things?

Prof. Reilly : Absolutely. The minister could make directions saying that, when interpreting good character, the issue of sexual offences must be taken very seriously and it would be only in exceptional circumstances, or never, that a person who had committed a sexual offence could be considered a good character for the purposes of the act. The minister can make directions like that. A tribunal is required to take those directions into account in making future decisions. But, in the sense of a decision that has been made, it is usually, 'Oh well, a bad decision has been made,' and that does happen. The minister can of course seek judicial review if he considered the decision to be unlawful. But certainly when a decision is one that the minister does not like, in this are you you will in a those circumstances, the minister came make directions to remedy that for the future.

CHAIR: It is a difficult philosophical problem. We as politicians always get people asking us, 'How come the court let that person off with a slap on the wrist for what seemed to be a major offence?' I used to be a lawyer many years ago, so I understand that it is different when you are in court and hear the full circumstances, but we live in a democracy. I see the explanatory memorandum is saying that as a politician the minister is attuned to what the majority of Australians are saying even if the courts are not. I am not quite sure that is right! But there is a challenge around what are accepted community standards and what courts, including AAT, sometimes do. Do you have any comments on that?

Prof. Reilly : Certainly. The whole point of the administrative review we brought in in the 1970s was that it is a principle of democratic accountability that ministers put the decisions they are making through parliament. They usually affect Australians in all sorts of areas of life. The idea was that there needs to be a check on that executive decision making. But, as you say, there is a delicate balance to be held here. The minister is also a parliamentarian and an elected member. I would strongly object to the idea that because the minister is elected and therefore closer to the people the minister can therefore make better decisions. I think the whole point of administrative review is that that is not necessarily the case; sometimes ministers make bad decisions and we need a review process.

But that review process, as you said, can go wrong as well. It is not that administrative review tribunals get it right all the time. However, we have a lot of safeguards in place to make sure that merits review is done in a way that is appropriate. One of those is the minister being able to give directions to tribunals. The other is that tribunals are independent and usually trained in this decision-making process. They are able to make fresh decisions. They follow good decision-making protocols as a rule. That is why we allow merits reviews.

CHAIR: You quite rightly say that tribunals are independent. But is the minister giving directions or having a chat to them thought to be interfering with their independence?

Prof. Reilly : That is where the delicate balance comes in. The minister can give tribunals assistance through directions and how they should be interpreting the law. But, when it comes to the facts of the decision, tribunals are completely independent. The minister cannot say, 'I thought this person was very unreliable and untrustworthy, so you should find that as well.' No, the tribunal is making a fresh decision based on the applicant. But on issues of how you interpret the concept of 'good character' is where the minister can assist the tribunal by giving directions.

Senator O'SULLIVAN: Professor Reilly, if some of my questions seem a little repetitious, please forgive me, as I was out of the room when the Chair canvassed some of this. I just want to make sure I have this right in my head. As I understand it, a decision is taken, then the Administrative Appeals Tribunal can consider that decision and make a decision and then the minister has a right of veto on the Administrative Appeals Tribunal decision, which can then be reviewed. There is jurisdiction for the courts to review the minister's vetoing of the decision. Is that an accurate assessment?

Prof. Reilly : Yes. That is pretty accurate. The only thing I would say is that, when it comes to the court reviewing the veto, that is then just on technical legal issues and whether there was an error of law made. What effectively happens is that you have a decision in the first instance and then a fresh decision by the tribunal, looking at the evidence again and maybe even having fresh evidence when making that decision. The minister has decided, 'I don't like that,' so vetoes that decision. There might be limited grounds on which you could apply for judicial review. Going to the courts is on much narrower grounds. It is no longer looking at what was the right decision; it is just looking at whether it was a legal decision.

Senator O'SULLIVAN: It more or less looks at process, to a certain extent.

Prof. Reilly : Exactly—usually it is issues of process. It is not issues of the merits of the decision. There is one ground where merits and legality blur—that is, if the decision was just so unreasonable and no-one could possibly have made it, then that can go to the legality. But I cannot see how that is going to arise—

Senator O'SULLIVAN: Isn't that a fairly standard scope of the courts to look at process rather than the merits to rehear the case.

Prof. Reilly : That is right.

Senator O'SULLIVAN: Would you agree that we would have to look at the decisions very thoroughly for people who have been convicted of child sex offences, manslaughter, people smuggling and domestic violence before citizenship is extended to an adult individual who has been convicted of such an offence?

Prof. Reilly : Absolutely, we should look at them thoroughly. I could not express an opinion on what was the right decision in those cases. I have not looked at those and obviously have not been privy to the particular cases that have been mentioned in the explanatory memorandum. Yes, of course, they are decisions we would want to look at very closely. If there was a sense that they were not in line with community standards, that is a reason to clarify what criteria the tribunal should be giving emphasis to.

Senator O'SULLIVAN: Would you also agree that it would be almost impossible to provide the tribunal with generic scope in these areas?

Prof. Reilly : You can certainly give directions around sexual offences, for example, to say in this kind of circumstance there would have to be absolutely compelling evidence for why that did not exclude someone. And if that was not the way the tribunal was approaching it, in the future they would have to approach it in that way.

Senator O'SULLIVAN: But would you agree that for somebody to produce an exhaustive guide to any tribunal, judicial or otherwise, to say follow this course in these circumstances—isn't that what we already do with the primary legislation that establishes those offences in the first place?

Prof. Reilly : No. There is scope for clarifying and giving more detailed directions because often the legislation is fairly general in its terms. So we can be more specific. But having said that, I agree that ultimately you have to have faith in the merits review process. You cannot get to the stage where you are virtually, through making directions, taking away the power of the merits review tribunal to make a fresh decision. But there are—

Senator O'SULLIVAN: In the normal course of events, we often have four or five tiers of appeal process with respect to decisions taken by tribunals and quasi-judicial bodies. In this instance, are you advocating that if the Administrative Appeals Tribunal makes a decision then that is the end of the road?

Prof. Reilly : Yes, that is how it works in almost all areas of decision making. We have three tiers of decision making. We have the initial decision, we then have merits review before a tribunal and, in some circumstances, we might be able to seek judicial review of that decision, but that would only be on legal grounds. There are only ever three tiers. What is happening here is we are potentially reducing it to two tiers, in some circumstances, where we are cutting out the AAT. So it is just the minister's decision, and then you could possibly seek judicial review of that. I would argue that in other circumstances we only ever cut out merits review if there is a real time concern—if decisions have to be made in a great hurry—or if they are about defence, national security and those types of really high-level decisions where maybe a tribunal process is not appropriate. I would argue that for a citizenship decision, which is a very important decision for those involved, obviously, we should have the best decision-making process that we have in other areas apply.

Senator O'SULLIVAN: I accept that, but you would accept also that it is a very important decision for the 25 million other Australians who are watching from the sidelines as we endorse someone to become a citizen of this country.

Prof. Reilly : Yes, but that is the reason why you would want to have a merits review process, to make sure that that decision is right. Sometimes that means that a decision might be made that the minister and some of those 25 million people do not like, but it is a question of what we think is the most effective and the fairest decision-making process. Since the 1970s we have sought administrative review of executive decisions as the way to go, and I agree with that.

Senator O'SULLIVAN: What would be your attitude if the process was as recommended with this bill—that is, the minister vetoes the decision of the administrative tribunal—but then allow the parameters of the minister's decision to be examined by judicial review, not just the process but to be able to appeal, and have the minister have to step up and put forward the grounds of his or her decision?

Prof. Reilly : That is putting in another tier of decision making, in a way. Going through the courts is a lot more expensive. There are all these processes that you have to follow. You get lawyers involved. I suppose the point of putting merits review in the tribunal was to avoid doing that in the courts. I agree that if you put that in then it is going to lead to an even stronger overall decision-making process, but you have to look at the costs of that. There is a reason we do not give the courts that responsibility, which is that it is going over the top.

Senator O'SULLIVAN: You and I could probably debate this for a bit longer, but we won't. Let me take you to page 2 of your submission—it is in section 1 'General Principles of Citizenship'. You state:

It is also important to acknowledge that most permanent residents applying citizenship have already been through—

this is the bit that is of interest to me—

a rigorous investigation of their identity and character.

Could you elaborate on what you understand to be the due process involved with this rigourous investigation of their identity and character?

Prof. Reilly : It is a very general statement and it does depend on the type of visas that people are applying for, but in every visa you obtain to come to Australia you have to declare that you are a person of good character. The decision making is through an officer in the Department of Immigration and Border Protection who looks at the application and determines whether someone gets a visa or not. For example, for a skilled migration visa a person has to have the skills they say they have, and for a temporary, say a 457, visa they have to be able to make it clear that they do not intend to stay long term. There is a process of application in which they have to fully account for their identity, who they are, and what they are doing in Australia. That is really what I meant.

Senator O'SULLIVAN: Let me raise a point with you. It is a matter, unrelated to these hearings, that I investigated last week. I had someone from the minister's department tell me that, notwithstanding the hundreds of thousands of people who fill out the form where they are asked to declare whether they are person of good character, almost nobody has ever answered, 'No.' So would you still continue to regard that as a rigorous investigation of their identity and character, when there is a self-assessment as to whether they are a person of good character or not?

Prof. Reilly : I am willing to concede that 'rigorous' is possibly putting it too strongly.

Senator O'SULLIVAN: This is where I personally see a flaw with respect to relying upon the due process prior to the citizenship. On the question of commission of offences by minors, we are talking about your definition of a minor as a person of 17 years or younger?

Prof. Reilly : Yes.

Senator O'SULLIVAN: Can you think of any circumstance where a person 17 years or younger might commit any type of offence that you, in your own mind, would then not want that person to be a citizen of our country, if we had an opportunity to make a decision on it?

Prof. Reilly : Do you mean: are there any offences that would not go to their character? Is that what you are asking?

Senator O'SULLIVAN: No. I can give specific examples, but I do not think it is needed. I am saying to you: can you think of no circumstance where an individual 17 years or younger could commit an offence and be convicted of that offence that would not persuade you to not want that person to be a citizen of our country?

Prof. Reilly : No. I think that there are offences that are very serious offences and certainly go to someone's character, but I do not think that is the only question here. We have to look at how long the person has been in the country, the extent to which Australia is responsible for creating a person and their bad character, their relationship with their family and what rights they have to go elsewhere in the world. We have to take that into account as well. But, sure, there are lots of offences that—

Senator O'SULLIVAN: Let me be blunt. Say you have a 16-year-old in our current circumstances who gets caught up in the ISIL arrangement and involves themselves in a kidnapping event where they behead an Australian citizen. You are okay for them to roll out on probation and go and get their citizenship confirmed? That is a really extreme example but it is—

Prof. Reilly : If we are talking about hypotheticals, I think we probably have to spend a lot more time just getting all the facts down. Are you talking about someone who was born here and has lived their whole first 16 years in Australia and then they go and do that? If that is the case, I would say we probably do have to take full responsibility for that person and we might want them in Australia so they are not beheading other Australians—put them in prison here.

Senator O'SULLIVAN: To me it is a moot point to define whether they were born here or whether they have just arrived a week ago. They are not citizens. This provision would prevent them, in certain circumstances, from becoming citizens. I am a retired detective, and nothing ever seemed black or white to me. To say, 'We won't have it,' versus 'We will have it,' I think, is a stark recommendation. But my point is made. Thank you for your contribution. In the first part of your paper, in your first paragraph, on the general principles of citizenship, you point out the significant importance and the implications of someone becoming a citizen of our country. With your permission, I will use that in a speech in the near future.

Prof. Reilly : That is fine.

Senator O'SULLIVAN: I will quote you.

CHAIR: Professor Reilly, thank you very much for your help today. We do appreciate it.

Prof. Reilly : You are welcome.