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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
17/07/2007
Australian Citizenship Amendment (Citizenship Testing) Bill 2007

CHAIR —Welcome. The New South Wales Council for Civil Liberties has lodged submission No. 32 with the committee. Do you have any amendments or alterations to make to that submission?

Dr Bibby —No.

CHAIR —Thank you. I now invite you to make a short opening statement, at the conclusion of which I will invite members of the committee to ask questions.

Dr Bibby —I would like to address four matters: values, facts, having a test at all and the manner of formulation of the test. I will begin with values. When I came to Australia in 1970, people were still taking Aboriginal children away from their parents. The double standard in sexual morality was widespread. There was a belief that what was called ‘miscegenation’ was disgusting and wrong. There was the idea that protesting against injustice was whingeing and accordingly somehow wrong or disgusting. And there was the idea that immigrants, who were called ‘new Australians’, should be seen and not heard and above all should not seek to make change. These were amongst the Australian values of the time. It was not only my right to reject them and to campaign against them; I deemed that it was incumbent upon me to do so and have accordingly attempted to do so in the years since.

What do we make of the belief that immigrants ought to adopt Australian values? It is impossible to find a coherent argument for such a view, and there is philosophical literature on the issue of values relativity and how you would argue for any sort obligation in relation to that. To argue for the idea that you ought to adopt Australian values you have to step outside Australian values—you have to appeal to universal values. And as soon as you do that you have the basis for criticism of Australian values.

What kind of universal principle would you appeal to? That people ought to adopt the values of any society in which they choose to live? That is plainly false. Think of Rwanda: you might choose to live in Rwanda for, say, the sake of your medical expertise, but you would not expect to adopt the values of the Hutu, or certainly not those of a few years ago. You might have chosen to stay in Nazi Germany. You might live at present in Zimbabwe. The notion that people ought to adopt the values of the society that they are in is plain nonsense. What alternative kind of argument could you produce—without ending up in incoherence—that would say that you ought to adopt the values of the society that you happen to live in?

There is a thing in ethics that is called the most stupid position, which is the notion that values are relative to a society and that something follows from this about how you ought to behave or what values you ought to adopt in a society. You cannot hold both of them together because you are applying a universal principle to support the notion of what you ought to do. It is actually an incoherent view. So the notion that has been put abroad, that people ought to adopt Australian values if they live in Australia, is simply nonsense.

A more sensible idea is that people who seek to become citizens of a democracy ought to adopt the values that a democracy relies upon, so those values are justified. But all values are controversial, even the most basic—perhaps especially the most basic. So we might say that you should accept the fundamental principle of respect for persons and hence accept that people are entitled to a say in issues that affect them and so one ought to accept democracy on those grounds—a standard deontological argument. Or, you might say, you should hold that democracy is better than other forms of government because it produces better outcomes than, say, a benevolent dictatorship because democracy fosters widespread disputation and widespread disputation, leads to the production of more facts and more information and better arguments, and in the long run leads to better decisions. But if you are a Catholic theologian, you would reject both of those approaches on the grounds that morality is not founded in fundamental respect for persons at all, the fact that that deontological approach to moral reasoning is mistaken and the appeal to consequences is inherently immoral.

The fundamental values that underlie our democracy are themselves controversial, not only in that sort of sense but because people want to nuance their values. What does respect for persons actually mean? Does it mean people ought to be respected equally? What does relationship to equal rights under the law, for instance, mean? If we respect people because they are rational beings who are entitled therefore to determine their own course of events as long as they do not harm others—or something along that line—then what do we make of the fact that people differ in their rationality? There are matters of controversy here about those values.

There is a considerable literature on just about any principle you can pull up as to what it means and how it is to be applied. Hence to set a test of values would mean that people would be required to say no when you would prefer them to say yes and when they would want to nuance their replies. Then you would have problems about marking it. I have spent 30 years teaching ethics. I know you cannot test people on what their values are. You can look at their arguments but not at their values. The point is that, although there are values that are readily appealed to in support of democracy, all those values are disputed.

Let me now turn to the facts. There is no good reason for requiring applicants for citizenship to have a knowledge of Australia—its history, customs and whatever—beyond what is already required under section 21, which is to say that you have got to know what the responsibilities and privileges of Australian citizenship are and you have got to understand the nature of the application that you are making and, presumably, the affirmation or oath that you are required to take. There is no obligation to know whether Perth is north of Sydney, who Australia’s second Prime Minister was or, for that matter, what the rivers that flow through Sydney are.

If we talk of democracy, we could argue that it is more important to know about Runnymede, the English Civil War, the French Revolution and the Third Reich. It is more important that people should understand the high cost of getting democracy and of defending democracy and the ease with which it is lost than the role of Sir Henry Parkes in the formation of the Australian Federation. There is absolutely no reason—to use one notion that was put—to know the laws of cricket or, for that matter, why a citizen should be obliged to support the Australian Cricket Team.

I turn now to process. Giving the minister absolute discretion as to what goes into a test is a recipe for arbitrary choices and for exclusion on the basis of prejudice and political expediency. If such exclusion occurred, it would create a large and dissident minority of people who would rightly feel themselves unfairly excluded. It is not a safe society when people are excluded in this fashion. The less open the process is and the less open the test is, the more it will be felt to be arbitrary and unfair.

There was comment earlier about trusting ministers. Can’t we rely on public opinion to ensure that a minister does not produce an unfair test? I am a bit surprised, I must say. If there is prejudice or if a group can be sufficiently demonised then a minister can act with impunity. I invite you to consider the role of the language test that was applied in the United States and that was used for decades to prevent African Americans from voting. Was there public outcry? Some. Did it stop people from being elected to the legislature of the southern states? No, it did not. Let us consider the White Australia policy and the use of language tests there—sometimes outrageous use. It took an awfully long time before that policy was removed. More recently, it took five years to persuade the public at large that the proposed trial of David Hicks was going to be unjust. It took even longer to persuade people that keeping children in immigration detention was harmful and dangerous and that it should be stopped. It takes an enormous effort, a huge amount of time and lots of people being involved to bring public opinion to recognise things, even those that are pretty obvious.

If a process is going to exist then it should be open and it should be a better procedure than simply saying, ‘The minister will decide; that discretion will not be a legislative instrument and so it is not changeable by parliament.’ You have already heard some arguments about this, and I know there are many submissions on it, so I will not recount them. However, we suggest that, if it is going to exist, there ought to be a committee set up which will at least advise the minister and which will have a determination as to what will be put forward. We invite you to look at the model of the New South Wales Board of Studies. The New South Wales Board of Studies has a composition determined by act of parliament. Various organisations are required to nominate people to become members of the Board of Studies.

CHAIR —Dr Bibby, if I could interrupt you for a moment. I just want to alert you to the fact that this is a short opening statement. We would like the opportunity to ask questions. If you could wrap up your short opening statement that would be helpful, and then we can ask some questions.

Dr Bibby —I appreciate your indulgence so far. I have about three lines to go. The proposal is that that body should itself provide the tests and that the tests should go to parliament and be able to be overruled. As an open process, it will be better than what is being proposed. Thank you.

Senator HURLEY —In evidence yesterday, the Secretary of the Department of Immigration and Citizenship said that ministerial discretion about questions would not allow any prejudice in the question against one group or against many groups because the general legislation surrounding it prohibited any kind of discrimination and that there were safeguards within that legislation and others. Do you have any response to that?

Dr Bibby —I need to take that question on notice. It is obviously a matter of detail of the legislation.

Senator HURLEY —You have also said that the bill should provide alternatives to the citizenship test, such as attending an approved course of study. Could you go into more detail about that?

Dr Bibby —Remind me of where that was.

Senator HURLEY —That is at 8.6 of your submission, under the heading ‘Summary of specific recommended amendments’.

Dr Bibby —If we are going ahead with this, instead of having a citizenship test, it would be appropriate to have people attend a course of study in which they would be taught about the responsibilities and the rights and privileges of Australian citizenship. A person having attended a course, one could take it that they knew the relevant material towards becoming an Australian citizen. The principal concern is that, while it is appropriate that people know about what it is to be an Australian citizen, it is not appropriate to go beyond that to other material.

Senator HURLEY —There is currently a course within the Adult Migrant English Program which teaches migrants about the Australian way of life. Would you consider it to be the kind of course that you are talking about?

Dr Bibby —Again, without looking at the program itself, I would not like to comment in detail, but it would be an appropriate location for such a program.

Senator HURLEY —With regard to your discussion about a review after, say, three years of operation—a sunset clause—the department of immigration intends to monitor the progress of the testing and the results of that testing. One might say that, their being on the ground and able to see the testing as it happens, they would be in the best position to do that. That would then be fed back to the minister to enable some finetuning or alteration of the process. Do you accept that that might be better than a formal review of the operation?

Dr Bibby —No, not at all. A public review referred to a parliamentary committee and so on is a much better process, partly because it is public. Also, one can hardly say that, after the department of immigration’s recent performance, we should have any confidence whatsoever that it would do a good job. To the extent that it does, it can obviously make a submission to such a review.

Senator KIRK —On page 3 of your submission, you say at paragraph 3.7:

The Bill should at the very least require that the test questions should be published for public comment prior to finalisation to insure objectivity and value-neutrality.

I suppose you are saying that, in the event that the test does go ahead, if and when the minister determines the questions, he ought to arrange for them to be made publicly available. Could you elaborate on how you see that process working?

Dr Bibby —I missed a little bit of what you said. I am just a wee bit deaf.

Senator KIRK —I was referring to point 3.7 of your submission. You are suggesting there that, when the questions are finalised, they should be released for public comment. I wonder whether you could elaborate on how you see that process working.

Dr Bibby —You mean the process by which they would then be revised?

Senator KIRK —You say that they should go out for public consideration. What sort of time frame would that involve and to whom would they be distributed for comment? What do you have in mind there?

Dr Bibby —I would imagine that the committee which produced the test in the first place would put forward the set of questions, that they would be presented to the parliament and made available for public perusal. What is an appropriate period of time? It depends partly on when parliament is sitting, I suppose. There would need to be adequate time for people to write in responses and time then for the committee to reconsider its proposals before they were sent to the minister and the parliament.

Senator KIRK —Whereas that seems to be not a bad idea, it is going to become quite cumbersome I would have thought, if and when the questions are to be revised down the track. If, at each stage, you are going to have to release them for public comment in that manner then—

Dr Bibby —Whether something is too cumbersome depends upon how important it is and this is no trivial matter.

Senator KIRK —I agree. Also you make mention here of what happens in the United Kingdom. I was interested to read at paragraph 3.9 whereby you say they have a website providing sample questions and test preparation. I am not familiar with that. Could you expand upon that and point out how you think that a similar system, I suppose that you are suggesting, may be introduced here in Australia?

Dr Bibby —I am afraid I had to step in at fairly short notice to replace my two colleagues, who had unfortunately other matters to attend to, so I would have to take that on notice too.

Senator KIRK —That is fine.

Senator PARRY —Dr Bibby, I have to challenge you on some of your comments in your opening statement. You mentioned that you would not necessarily adopt the values of the country that you were in but you did mention some dictatorships. We are a far different democracy than some of the countries that you mentioned. The people of this country decide on how our values end up through the democratic process so, without inviting you to debate the point, I do not know whether you have any comment.

Dr Bibby —I do think it is incumbent upon someone who comes to the country to use appropriate processes if they wish to change the values which are here. The acceptance of the peaceful ways of resolving disputes and that those are the sorts of ways that one should proceed seems to me to be really basic and important. But there is no obligation on me to accept that miscegenation is abhorrent.

Senator PARRY —No, but no-one is forcing you to accept that. We could debate it, but we would get away from the true matter that we are here to discuss.

Dr Bibby —Perhaps I could make a point. To put up a universal claim of a kind that says you ought to accept Australian values and not one that says you ought to accept the values that are inherent in a democracy is a universal claim that can be challenged by providing exceptions to it.

Senator TROOD —Are they mutually exclusive propositions though?

Senator PARRY —No.

Dr Bibby —That there should be exceptions?

Senator TROOD —No, the idea that Australian values are necessarily different to democratic values.

Dr Bibby —If what you mean by Australian values is the democratic values then that is what should be stated.

Senator TROOD —What I am saying is why could they not include democratic values?

Dr Bibby —They might. It is what they might also include that we would object to most strongly.

Senator TROOD —They might at the core include Australian democratic values.

Dr Bibby —I am sorry, I do not quite get the point that you are making. The minister would be able to specify a set of questions which test values. If there is no limit on those, anything that counts as an Australian value might be included.

Senator TROOD —And it might include values which relate to democracy.

Dr Bibby —It might. It is a question as to whether the power of the minister should be limited.

Senator TROOD —I am sorry I am interfering with Senator Parry’s questions.

CHAIR —Some valuable points have been made across the table, we will go back to Senator Parry.

Senator PARRY —Thanks, Chair, and thanks, Senator Trood. We are on the same track. Coming back to your opening statement, the values we have in this country have evolved through a democratic process, not a dictatorial process. You tried to align us with or make a comparison between us and countries that have absolutely no similarity with our democratic structure. That was a point that I particularly wanted to get on the record. Secondly, and this is not necessarily your fault because this has been in the media, it is not accurate that people will have to name cricketers within the test. That is a flippant remark, but it is nice to put on the record that that is not proposed in any way, shape or form to be part of the test. The test as we understand it is still to be worked out. Whatever shape or form it will take will take into account the findings of this committee. Thirdly, and moving now away from your opening statement and following on slightly from Senator Kirk, do you accept the proposition that a minister would be subject at all times to peer review from within cabinet and also be subject to the views and opinions of colleagues within the parliament and also be very cognisant of public opinion as well as departmental opinion, and so therefore would be in a good position to design a test, the nitty-gritty details of which would be problematic if left to the floor of any chamber? What are your comments?

Dr Bibby —I have already commented in part. Would the minister be subject to criticism and input from his or her colleagues? No doubt. Would the minister be subject to criticism from public opinion? No doubt as well. Would that ensure that the minister would act well? No, it would not. We have had sufficient examples to see that. That was my point when I was talking about the White Australia policy and the values of Australia of the past. It takes a very long time for public opinion to be changed. It is quite possible for a government to create a new prejudice. We have seen that happen in recent times. When a prejudice is created, it is much easier for discriminatory action to be taken. We need sufficient protection of what may be a demonised minority, and public opinion in that case will not ensure that the minister will stay on the right path.

Senator PARRY —On a day-to-day basis, ministers must make decisions that cannot tie down the legislative process by having every minute detail decided by a legislative instrument or public scrutiny by way of a committee or whichever way that process is deemed to take place. This is another one of those issues. I could give you many examples of ministerial responsibility which governs the country on a day-to-day basis without any scrutiny whatsoever apart from the methods that I mentioned earlier. I would suggest that a questionnaire may be one of those detailed issues that should be subject to the minister having that final discretion.

Dr Bibby —I have two comments. Whether it is a small decision which one might reasonably leave to a minister or whether it is an important one that should be put before the parliament depends upon how significant the consequences are and how major the impact is. The question of who becomes an Australian citizen and the question of who is excluded from becoming an Australian citizen is not a trivial matter at all. We are talking about whether people will be granted very important rights. The notion that this is simply a matter of ordinary discretion that should not be subject to closer scrutiny seems to me to undervalue the significance of being excluded from Australian citizenship. There was a second point, but I am having a ‘senior moment’.

Senator PARRY —That is fine. Feel free to come back to it.

CHAIR —Dr Bibby, feel free to come back to that or respond on notice. There is no problem with that.

Senator NETTLE —In your submission, Dr Bibby, you say on the first page:

... in addition to the existing requirement “an adequate knowledge of the responsibilities and privileges of Australian citizenship”. This additional requirement is so broad and open to interpretation as to be dangerous.

Would you expand on the danger that you see?

Dr Bibby —I think the danger is that the power of the minister would be used in a discriminatory fashion. The consequences of that would be quite serious for the security of the country.

Senator NETTLE —Thank you.

CHAIR —Dr Bibby, the Australian Citizenship Act 2007, not the bill before us but the current act, requires that an applicant have a basic knowledge of English and also an adequate knowledge of the responsibilities and privileges of Australian citizenship. Do you support the current act?

Dr Bibby —In terms of my organisation I think I had better take that question on notice.

CHAIR —Thank you. Finally, you indicated in your opening statement, and I want to concur with some of the questions asked by Senator Parry and Senator Trood, that you had been teaching ethics for 30 years and that you could not assess someone’s values but that you could assess their arguments. Could you explain how you come to that conclusion?

Dr Bibby —There is a sense in which I could tell you what one of my student’s values are; that is simply straightforward. But to set that against a scale or to set it against a set of values that they are required to accept is always problematic because of the desire of people to nuance their values. You ask them a question that you expect to be answered one way, and they answer it from a totally different perspective. Or you ask a question that relates to a specific value, and they do not want to answer that in any sort of straightforward fashion for what can be quite good reasons. So it is not that you cannot actually find out in the course of a discussion what a person’s values are, of course you can. But to set a test of people’s values which is going to be applied across the board and then hope to find a nice, say, computer marked answer, or something you can run through in a hurry and say, ‘yes, yes, yes,’ is just not going to work.

CHAIR —Can I use an example and draw your attention to the minister’s second reading speech in which he said specifically:

For generations, Australia has successfully combined people into one community based on a common set of values.

These values include our respect for the freedom and the dignity of the individual, support for democracy, our commitment to the rule of law, the equality of men and women, respect for all races and cultures, the spirit of a ‘fair go’, mutual respect, compassion for those in need, and promoting the interests of the community as a whole.

Would you support that statement, or would you disagree?

Dr Bibby —With those values?

CHAIR —No, with his statement that they are a common set of values held by Australians for generations.

Dr Bibby —They are held in nuanced fashion by different people. Let me pick on equality of men and women, for instance; it is probably the easiest example. What that means in the context of, say, the Catholic Church is rather different from what it is taken to mean within, say, the Uniting Church. Just what is this equality? These are not straightforward.

CHAIR —So you disagree, or are you simply saying that these values mean different things to different people?

Dr Bibby —Yes, that they mean slightly different things to different people.

CHAIR —But would you concur with the thrust of the statement that there is a common set of values that has been held broadly by Australians over various generations?

Dr Bibby —They are not important because they have been held by Australians over various generations. That falls into a trap that I was trying to outline at the start. The fact that they are Australian is not relevant here. They are certainly values which have been held up as fundamental and important and to which in general terms, and perhaps more tightly than that, I adhere to. They are important values. They are not important because they are Australian values, and the fact that they have been held over generations in Australia is not significant on matters of values themselves, what you can argue in support of them and what you do with them when you have got them.

CHAIR —Thank you for your evidence today, Dr Bibby. We appreciate your input.

[11.06 am]