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Legal and Constitutional Affairs Legislation Committee
10/11/2014

FINNEY, Ms Frances, Assistant Secretary, Citizenship Branch, Migration and Citizenship Division, Department of Immigration and Border Protection

FLEMING, Mr Gary, First Assistant Secretary, Migration and Citizenship Policy Group, Department of Immigration and Border Protection

SEKHON, Ms Shireen, Principal Legal Officer, Legislation and Framework Branch, Legal Division, Department of Immigration and Border Protection

[12:19]

CHAIR: I welcome the final witnesses from the Department of Immigration and Border Protection led by Ms Fairleigh, the assistant secretary. Ms Finney, can I start by asking if there is any reason why we are doing this by teleconference? I am one of these old-fashioned people that find teleconferences not terribly satisfactory. Is there a problem getting departmental people to give us evidence face-to-face?

Ms Finney : Our apologies for not being able to be there in person in Sydney today. It certainly was not something intentional. It was more to do with just the timing of the hearing and also the availability of some of our people to be able to be in Sydney at the time.

CHAIR: Do you discuss these issues with committee staff? I accept teleconferencing and videoconferencing is useful where citizens are involved and they do not really have the resources to travel long distances or they have other work commitments, and I realise how busy you people are, but it is a bit difficult. Anyhow, I guess we can only make the most of it. But I would just hope that this is not going to be the rule rather than the exception.

Mr Fleming : I just want to add that we received notice of the hearing on Thursday, which was a contributing factor to other commitments and personal commitments. It is our normal practice to appear in person before committees.

CHAIR: That is the principal issue, I guess, that it is the normal practice.

Mr Fleming : I can give you an assurance that I have had the pleasure of appearing before the Senate legislation and other committees for many years and I think this is the first teleconference I have done. I can just assure you that it is our usual practice to appear in person.

CHAIR: That is fine. Thank you for coming along and thank you for your submission. I will not go through the rules—I think you are all probably experienced at these sorts of hearings and do not need me to go through them. You are aware that we do not ask for opinions from officers and, if there are things that you want to consult with the minister or others about, you should indicate that. Will ask you to make an opening statement before we ask questions, if you would like to. Before I do that, can you tell us the timing of this bill? Has the government indicated the urgency for this piece of legislation? It doesn't seem to be terribly urgent from what I have read of it. Was there any reason or, as one of my colleagues unfairly and capriciously said, 'The government had run out of legislation in the House of Representatives.' But I am sure that is not the reason.

Mr Fleming : I had not heard of that as a reason. From our perspective there are whole-of-government processes that set the relative categorisation, urgency and order in which bills are presented. We have no special insight on this one.

CHAIR: Okay, there was a suggestion from the Human Rights Commission—which, if you were watching this, and hopefully someone in your office has been watching the proceedings—that it might have been a guard against perhaps a rogue court decision. How can any court decision be rogue? But anticipating an outcome of a court action and making sure things were in place. If that is the reason, whether you agree with it or not, I would accept that. Can anyone comment on that?

Mr Fleming : Firstly, to assure you, we have had the hearing on in the background. I would say that the process for this legislation was in train well before the case raised by the commission.

Senator JACINTA COLLINS: I have had people attempting to monitor the hearing today and they have been telling me that the live streaming is not working, so I am not sure the department necessarily has heard the evidence we heard earlier today.

Mr Fleming : It has been playing on a television in my office throughout.

Unidentified speaker : Visually or audio?

Mr Fleming : Audio. We have not had visuals.

CHAIR: We will send Senator Collins' staff around to get some—

Senator JACINTA COLLINS: It may be that they are in a parliamentary network rather than in an office in another city.

CHAIR: Did you want to make an opening statement or any amendment to your written submission?

Ms Finney : Yes, I will make an opening statement. The department appreciates the opportunity to provide further information or clarification on aspects of this bill. We also welcome and acknowledge the insights of the other contributors to this consideration. We note that the department has already provided a submission to provide some further explanation of the bill, but we just wanted to make a couple of opening points.

The first is that, as I think we all agree from the hearing this morning, citizenship is the most valuable status that this department administers and that the Australian community can give. One of the things we wanted to do was clarify some of the questions or concerns that have emerged in some of the submissions and discussions so far. These are obviously not all of them; they are just some of the ones we wanted to cover initially. We will keep our statement brief so that we can allow time for questions from the committee.

We just wanted to remind everyone that the Citizenship Act and the Migration Act assessments and decisions are two different processes. For example, a decision to refuse or cancel an approval does not necessarily mean a person would be detained or removed from Australia. In cancelling or refusing citizenship, it does not necessarily follow that someone would automatically be removed from Australia or detained. Those decisions are taken under the Migration Act, not the Citizenship Act. If a person is refused their application for citizenship, they would usually continue to remain in Australia as a permanent resident on the visa that they already hold. If a person's Australian citizenship, on the other hand, is revoked while they are in Australia, they would automatically revert to an ex-citizen visa, which allows them to remain in Australia indefinitely, just not as an Australian citizen. Under the Migration Act, any visa may be considered for visa cancellation. So if an individual's visa is not cancelled and should they wish to travel on an ex-citizen visa they would need to apply for a visa with a travel facility, such as a resident return visa. Importantly, people can always reapply for citizenship at a later date.

The other aspect we wanted to clarify up-front is that there is a difference in the act between 'character' and 'offences'. Some of the information put to the committee may bring both of those together, whereas they are quite different. Offences are obligations to an Australian court where prohibitions on approval currently apply in the act, whereas character considerations are broader and take in a number of factors.

The third area to clarify is just that there are no changes in the existing statelessness provisions in the act. The bill proposes no changes. So a child born in Australia who is assessed as being stateless remains eligible for Australian citizenship under the eligibility requirements of the existing act, and that is unchanged in the bill. Finally, if a person's citizenship application or status has been refused, cancelled or revoked, there are no bars preventing applicants from seeking to reapply for Australian citizenship at a later date when their circumstances may have changed. We thought that some of these overarching comments may assist the discussion. Thank you.

CHAIR: They certainly do. Thank you for those clarifications. As a matter of course, do you consult widely on these amendments to citizenship and migration issues? In particular, the Human Rights Commission have indicated that they often are consulted but were not in this case. I accept that not everyone always agrees with everything the Human Rights Commission say, but it would seem a saving of time if bodies like that were consulted up-front then they may not need to be called as witnesses to our inquiries. What is the consultation process with this bill?

Ms Finney : The department undertook the standard legislation consultation process. That involves consultation widely within government and with other government agencies also identifying if other non-government agencies need to be included in the consultation process. They would assist us in identifying whether that was considered necessary. In this case, it was not indicated to us that that was necessary.

CHAIR: You have seen the Human Rights Commission's submission, which they concede is not as fulsome as they would have liked because of the time constraints of this committee. I repeat and acknowledge that not everyone always agrees with the Human Rights Commission, and I am not suggesting that the department should agree with them, but it would be sometimes useful if they were consulted in matters where human rights are likely to be an issue. That is gratuitous comment on the side.

Mr Fleming : If I could add one thing to that. As part of the standard process of developing and consulting on policy and associated legislative changes, compatibility with human rights instruments is an explicit role undertaken via the Attorney-General's portfolio. Even though it is not the Australian Human Rights Commission, compatibility with human right instruments is considered as part of developing legislation, even if it is not part of a broader consultation. As you have pointed out, sometimes legislation is developed in that way, particularly if, for example, it is rewriting an entire act and you might do an actual public exposure draft of the legislation. That is usually for far more fundamental and far-reaching changes than we are dealing with in this amending bill.

Senator JACINTA COLLINS: The government has presented this to the House of Representatives as an update to the Citizenship Act rather than simply an amending bill. So I would like a little more detail from the department about what consultation has occurred. You mentioned the standard process. What did that involve?

Ms Finney : It involved the identification, firstly, within the department through our legislative change process and change management process of the various areas impacted or affected by the bill. And then, beyond that, as I mentioned before, there is the broader consultation across government, where, if we need to go further and seek specific input from other agencies or non-government organisations, that would be identified. So, in the case of this bill, it was those two processes, and there were no further agencies or organisations identified in that consultation.

Senator JACINTA COLLINS: What is not clear to me, for the second time around, is: within that standard process, where was the need for further consultation with, for example, the Human Rights Commission, not identified?

Ms Finney : In the broader government consultation process, as Mr Fleming has explained.

Mr Fleming : Yes. The standard process for developing legislation engages departments of state. Whether there is going to be broader consultation with other agencies or broader public consultation is a matter for government process and/or cabinet decision.

Senator JACINTA COLLINS: Then, Mr Fleming, what policy measure was it proposed required only limited consultation?

Mr Fleming : We went through the standard process, and if in that standard process—

Senator JACINTA COLLINS: Which departments were involved in the standard process? Perhaps you can help me with that much information.

Mr Fleming : For example, drafts of cabinet submissions go to all departments of state.

Senator JACINTA COLLINS: Okay. So, with your earlier comment about Attorney-General's, for instance, perhaps Attorney-General's should have highlighted that it would be useful to have input from the Human Rights Commission. Is that your suggestion?

Mr Fleming : No. No, I am not suggesting that at all. I was merely commenting on the fact that the standard process does include looking at proposed policy and legislative changes for compatibility with human rights instruments.

CHAIR: You are saying the Attorney-General's Department looks at whether legislation accounts for Australia's human rights obligations?

Mr Fleming : That is correct.

CHAIR: Okay. That is helpful.

Senator O'SULLIVAN: Can I just ask a clarifying question, Senator Collins?

Senator JACINTA COLLINS: Sure.

Senator O'SULLIVAN: On that point, if you take yourself to page 7 of the Australian Human Rights Commission's submission, it says, it seems to me—from my reading of it, at least—that the potential for leaving a child stateless would be in contravention of article 8 of the CRC. Are you saying that the Attorney's office has looked at that and disagrees with that opinion as expressed by the Human Rights Commission in their submission?

Mr Fleming : I would not be able to go to the content of the advice given to government, but I would refer to Ms Finney's comments in the opening statement that this bill does not amend the statelessness provisions in the Citizenship Act. So our position would be that the specific provision with respect to acquiring citizenship, if a child born in Australia would otherwise be stateless—I cannot remember the section number of the act at the moment; it is section 21(8)—

Senator O'SULLIVAN: While you are doing that, I direct your attention to the submission—and their words are quite explicit. Let me quote them:

On the contrary, it is clear from proposed s 34AA(2) that a child could have his or her citizenship revoked, and become stateless …

Now, that is in no way ambiguous. If it were not in a submission from the Australian Human Rights Commission, I might accept it could be otherwise. Does that mean, prima facie—the fact that it remains in the bill—that the Attorney's office has looked at it and would disagree absolutely with that unambiguous statement of the commission? I do not need a long answer. That is a bit of a yes or no question.

Mr Fleming : Except that I cannot go to the content of the policy or legal advice given to government.

Senator O'SULLIVAN: But you would never accept the proposition, would you, that the Attorney's office would allow draft legislation to go through that would give effect to a child being stateless? In other words, does that default to the alternative proposition? They have looked at it. They do not have a problem. Human rights have looked at it. They have a problem, so we have this sort of Mexican stand-off on the issue.

Ms Sekhon : I understand the question relates to the new revocation of citizenship powers in the bill. Essentially the position is that the provisions are consistent with the reduction of statelessness convention, so essentially if there is a situation where there is fraud or misrepresentation presented in relation to a child citizenship application, then the minister would have the discretion—and could I emphasise it is a discretion—that could only be exercised in the public interest to revoke that citizenship.

Senator O'SULLIVAN: Sorry to interrupt you, but my question is quite specific: do you agree, first of all, that the Australian Human Rights Commission disagrees with that element of the bill or with the statement that a child cannot become stateless under this bill's amendments? They have stated so. Let me read it to you again. This is their words:

On the contrary, it is clear from proposed s 34AA(2) that a child could have his or her citizenship revoked, and become stateless …

I am not here to debate whether you agree with that statement or not, but would you agree with this: that statement is very clear that at least the Human Rights Commission believes it is possible?

Ms Sekhon : Yes.

Mr Fleming : We would agree with that.

Senator O'SULLIVAN: If the bill has been scrutinised by the Attorney-General's office and allowed to go forward, with the provision in it that the Human Rights Commission are concerned about, it would follow that we can assume, prima facie, that the Attorney-General's office does not agree with that reading of the legislation. Is that fair?

Mr Fleming : I cannot go to the reading of the Attorney-General's Department. What I would say is that not even the Human Rights Commission is saying that there is anything in the bill that would require a child to be rendered stateless. There is nothing in the bill that requires it. It could only follow the exercise of a discretion and a determination in the public interest.

Senator O'SULLIVAN: So if the minister exercised his or her discretion, you are agreeing with the Human Rights Commission that—if they decided—they could make a child stateless.

Mr Fleming : That would seem possible, yes.

Senator O'SULLIVAN: What happens to a stateless child?—sorry, Senator Collins, do you mind if I follow?

Senator JACINTA COLLINS: Yes. I think the committee needs to discuss, given the limited time we have, where we go from here because I do still have a number of questions in more specific areas. I am happy for you to continue, just on this point.

Senator O'SULLIVAN: What happens to a child, in this unlikely event? Let us not debate the likelihood or not.

Ms Sekhon : If this particular event occurred, the child would default to an ex-citizen visa. Then again, as Frances explained in her overarching comment, there would be subsequent processes that could be followed, which could result—there would be further options that would be explored at that time.

Senator O'SULLIVAN: I invite you to finish your question, where you used the word 'result'. Could it result in a stateless child being put on the Queen Mary, for example, never to come back or—

Ms Sekhon : They would default to the position of holding an ex-citizen visa—

Senator O'SULLIVAN: I understand that.

Ms Sekhon : lawfully in the community and then, whatever the issues were that went to the consideration of the revocation decision in the first place—the fraud and misrepresentation issues—they would be considered in the context of trying to find—

Senator O'SULLIVAN: I am only going to have one more attempt at this and then yield, as I should, to Senator Collins. This seems to be a very untidy provision. Is it possible for a citizen who has a non-citizen visa to be lawfully and forcefully removed from the country to some other place on earth other than Australia?

Ms Sekhon : Not while they are the holder of a visa.

Senator O'SULLIVAN: That is not my question, ma'am. That is not my question, in fairness. Just go to the nub of my question. Is it possible for someone who holds a non-citizenship visa to eventually become an alien to Australia?

Ms Sekhon : Yes, it is possible that the circumstances relevant to the fraud and misrepresentation, which resulted in the citizenship-revocation status, could be considered in the visa-cancellation space.

Senator O'SULLIVAN: Just on that point, and I will close, we have a stateless citizen now who is here up until 8 am tomorrow morning on a non-citizen visa. It is revoked, because we know this is all possible. What happens to that child at nine o'clock tomorrow morning?

Mr Fleming : If their citizen visa is cancelled—

Senator O'SULLIVAN: Yes, and they are stateless.

Mr Fleming : Again, that would depend on factors such as if they were eligible for a bridging visa or any other visa.

Ms Sekhon : Also, the best interests of the child would be considered in any cancellation of a visa.

Senator O'SULLIVAN: Guys, listen; please. We could go on forever here.

CHAIR: No, you could not.

Senator O'SULLIVAN: The question is clear, Chair.

CHAIR: It is, Senator Sullivan. I have just been having a conversation with the deputy chair, who reminds me that we have other committee hearing, on a different bill, starting in 20 minutes time. We might have to stop there, but Senator O'Sullivan do not be dismayed. Senator Collins and I both have some substantive questions and we really have not got onto those. We might have to try to have a hearing next week some time, during the sitting of the Senate, which would probably have to be Wednesday.

I do appreciate the department's help. There are a number of questions we really did want to put to you. I accept that if you only got advice last Thursday it would have been difficult for you to get here on Monday, because you had other things, and I accept that. Part of the problem is this committee has so many inquiries going that we have trouble getting a date. Having said that, I think we will adjourn the proceedings now. Members of the department, the secretariat will be in touch with you after the committee identifies a time when you could meet with us in Parliament House so that we can put to you some of the issues that have been raised with us and other questions. Would that be okay?

Mr Fleming : That would be fine, Chair. You are talking about not this Wednesday but the following Wednesday?

CHAIR: That is correct.

Mr Fleming : That would be fine. It probably also gives us enough time to respond, if you want the secretariat to pass particular questions to us. We could, I am sure, in quick order give a full or partial response, depending on the questions, which might free up some of your time when it comes to the hearing.

CHAIR: That is a good suggestion. Could I suggest that you have a look at Hansard, if the Hansard is out in the next couple of days, and review the evidence given by some of the previous witnesses today and some of the questions that members of the committee raised. If there are comments that you want to make in either answer to the committee's questions or perhaps in contradiction of some of the evidence given to us, it might be a useful start. That is a good suggestion. Thank you very much.

Committee adjourned at 12 : 51