Australian Citizenship Amendment (Citizenship Testing Bill) 2007

Submission of the Human Rights and Equal Opportunity Commission to the

Legal And Constitutional Affairs Committee

on the

Australian Citizenship Amendment (Citizenship Testing Bill) 2007

6 July 2007

Human Rights and Equal
Opportunity Commission

Level 8, 133
Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600

www.humanrights.gov.au

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A. INTRODUCTION

1. The Human Rights and Equal Opportunity Commission (HREOC) makes this
   submission to the Legal and Constitutional Affairs Committee in its Inquiry into
   the Australian Citizenship Amendment (Citizenship Testing) Bill 2007 (the
   Bill).
   
   
   
2. HREOC previously provided a submission to the Citizenship Taskforce of the
   Department of Immigration and Citizenship in response to the Discussion Paper on
   Citizenship Testing, indicating that it did not support the introduction of a
   citizenship test by the government. HREOC’s submission in relation to the
   Discussion Paper is available on its
   website.^[1]

B. SUMMARY

3. HREOC submits that the Minister is given considerable discretion in
   determining the nature and form of the citizenship test, while on the other hand
   is given insufficient discretion to provide alternatives to the test where
   applicants, because of their particular circumstances, are disadvantaged by
   having to sit the test. HREOC submits there should be a better balance in the
   allocation and oversight of Ministerial discretion in these two areas of the
   Bill.
   
   
   
4. More particularly, HREOC has the following concerns in relation to the
   Bill:
   
   
   
   • The Bill does not provide clear guidance on how the Minister should exercise
     his discretion in determining the nature or form of the citizenship test. The
     Minister’s discretion is also not subject to appropriate parliamentary
     oversight. This leaves open the possibility that a citizenship test could be
     implemented that disadvantages certain groups of people.
     
     
     
   • The Bill does not allow for alternatives to the citizenship test for
     applicants who are unfairly disadvantaged by the requirement to sit a test. For
     instance, the Bill fails to make special provisions for persons who might make
     worthy Australian citizens yet are unable to pass a formal citizenship test due
     to past experiences of trauma or persecution or due to limited education.
     
     
     
   • The Bill gives the Minister unlimited discretion to determine the
     eligibility criteria that a person must satisfy in order to sit the test. HREOC
     submits that, in view of the eligibility criteria in s 21(2) for applicants,
     there is no need to provide for further criteria that must be satisfied in order
     to sit the test.
     
     
     
5. In order to address these concerns HREOC recommends the following:
   
   
   
   • The wide discretion currently conferred on the Minister in determining the
     nature and form of the citizenship test should be more clearly confined to the
     eligibility requirements under s 21(2)(d), (e) and (f).
     
     
     
   • The instrument creating the test should be made a legislative instrument in
     order to allow parliamentary scrutiny of the Minister’s determination in
     relation to the nature and form of the test (although it may be appropriate that
     the actual questions are not part of that legislative instrument).
     
     
     
   • The Bill should provide a mechanism which provides for exemptions or an
     alternative process for applicants who are unfairly disadvantaged by having to
     sit a test.
     
     
     
   • Section 23A(3) of the Bill should be removed to ensure that any person who
     is eligible to become an Australian citizen is also eligible to sit the test.
     There should be no discretion in the Minister to impose further eligibility
     criteria for persons wishing to sit the test.

C. NATURE AND FORM OF THE CITIZENSHIP TEST

Clarifying
ambiguity

6. Under s 21(2A) of the Bill, the Minister can only be satisfied that an
   applicant has met the eligibility criteria set out in s 21(2)(d), (e) and (f) if
   the applicant has sat and successfully completed a test. However, s 23A does not
   explicitly require that the test be related to the eligibility criteria in s
   21(2)(d), (e) and (f).
   
   
   
7. To avoid any potential ambiguity, HREOC recommends that the wording of s 23A
   should be amended to make clear that the content of any test is directly
   referable to the criteria in s 21(2)(d), (e) and (f). For example, the current
   wording of s 23A(1) could be amended to read:

   The Minister must, by
   written determination, approve a test for the purposes of subsection 21(2A)
   which examines whether the applicant has satisfied the general eligibility
   requirements set out in sections 21(2)(d), (e) and (f).

Wide Ministerial discretion in devising the test

8. Other than its reference to the eligibility criteria (d), (e) and (f) in s
   21(2A), the Bill provides no limit to the Minister’s discretion in
   formulating a test or multiple tests. Indeed, pursuant to s 23A(6), the
   Minister’s determination may ‘cover any other matter related to the
   test the Minister thinks appropriate.’ While HREOC agrees that some
   flexibility is both necessary and desirable, HREOC believes that these
   provisions cast the Minister’s discretion in excessively wide terms
   without providing appropriate safeguards.
   
   
   
9. For instance, there is scope within the Bill to allow the Minister to
   formulate different tests for different
   applicants.^[2] HREOC agrees that it
   may be appropriate in some circumstances to have more than one form of test,
   such as to make provision for applicants with special needs. However, HREOC is
   concerned that there is no adequate safeguard in the Bill to ensure that the
   creation of different tests does not operate unfairly against particular
   categories of applicants.
   
   
   
10. In order to address these concerns, HREOC recommends that:
    
    1. The Minister’s determination in devising the test should be made a
       legislative instrument; and
    2. The Bill should be amended to allow for appropriate exemptions and
       alternatives.
       
       
       
11. These issues are discussed further below.

D. LEGISLATIVE INSTRUMENT

Determination should be a
legislative instrument

12. HREOC recommends that the Minister’s determination of the proposed
    citizenship test under s 23A be made a legislative instrument.
    
    
    
13. The importance of citizenship to Australia’s future and its
    implications for compliance with international human rights
    standards^[3] warrants parliamentary
    scrutiny of any instrument creating a new citizenship test. This oversight will
    enhance the credibility of the test process before it is applied to prospective
    Australian citizens. Additional Parliamentary scrutiny will also ensure that any
    provisions beyond the scope of the test initially foreseen by Parliament when
    drafting the empowering act, can be
    addressed.^[4]
    
    
    
14. Making the determination a legislative instrument could be achieved by
    amending the proposed s 23A(7) in the Bill to read:

    A determination
    made under subsection (1) is a legislative instrument.

15. The effect of this change will be to make the instrument which creates the
    test subject to disallowance under s 42 of the Legislative Instruments
    Act 2003 (Cth), thus preserving legislative oversight before the test
    comes into force. HREOC acknowledges the difficulty in providing satisfactory
    guidelines in the Bill on how the Minister should exercise his or her discretion
    in formulating the proposed test. HREOC therefore considers that making the
    determination a legislative instrument would provide an essential safeguard, by
    making the final determination setting out the test subject to Parliamentary
    scrutiny.

Disclosure of test questions

16. In making the Minister’s determination a legislative instrument, HREOC
    acknowledges that this raises a potential issue as to disclosure of the test
    questions.
    
    
    
17. One approach to this issue might be for the Minister’s determination
    to contain the full list of potential questions and state that the test shall
    comprise 20 questions drawn at random from that list. In this way, there is a
    mechanism for ensuring scrutiny over the appropriateness of the questions.
    Furthermore, even though the test questions are potentially disclosed, an
    applicant would effectively need to learn the answer to all of those
    questions in preparing for the test.
    
18. Alternatively, Parliament may prefer to delineate in the Bill
    between:
    1. the Minister’s determination on the nature, form, source material and
       essential features of the test; and
    2. the Minister’s determination on the actual questions comprising the
       test.
       
       
       
19. Using this approach, the former determination would be a legislative
    instrument whereas the latter need not. However, under this approach HREOC
    considers it important that the Minister’s determination in the former
    category should specify the source material forming the subject of the test
    questions. In this regard, HREOC notes the following statement by the Minister
    in his second reading speech for the Bill:

    The material which will
    form the basis of the citizenship test will highlight the common values we
    share, as well as something of our history and our background. It is currently
    being drafted and will be released once completed.

    The booklet will give migrants to Australia the information they need to
    better understand what it means to be an Australian, what Australia will do for
    them, and what they are expected to do in return, for this country. It will give
    a brief summary of our history, our heritage, our symbols, our institutions and
    our laws, as well as what migrants need to do to apply for
    citizenship.^[5]

20. HREOC considers that it is appropriate that the content of this booklet
    should form part of the relevant legislative instrument. This will provide
    Parliamentary scrutiny over the material forming the subject of the test to
    ensure that it is appropriate. Indeed, given that the booklet will seek to
    summarise ‘what it means to be an Australian’, as well as ‘our
    history, our heritage, our symbols, our institutions and our laws’, the
    content of this booklet may well raise issues that would be appropriate for
    Parliamentary debate. In addition, the actual content of the final questions
    (which under this approach would not be subject to scrutiny) would be clearly
    limited by reference to this booklet.

E. ALTERNATIVES AND
EXEMPTIONS

Citizenship test will not apply to all applicants

21. HREOC notes that the Australian Citizenship Act 2007 (Cth) currently
    provides separate eligibility criteria for certain categories of applicants. For
    example, there are separate eligibility criteria for applicants who, at the time
    of making an application:
    
    
    
    1. have a permanent physical or mental incapacity at that time that means the
       person is not capable of understanding the nature of the application at that
       time (s 21(3));
    2. are suffering from a permanent loss or substantial impairment of hearing,
       speech or sight (s 21(4));
    3. are aged over 60 (s 21(4));
    4. are aged under 18 (s 21(5)); or
    5. are stateless and do not have reasonable prospects of acquiring the
       citizenship or nationality of another country (s 21(8)).
       
22. While the Bill does not seek to amend these
    provisions^[6], HREOC is of the view
    that s 21(4) is unnecessarily wide and based on the outdated assumption that
    people with physical, vision or hearing disabilities would necessarily be unable
    to undergo similar procedures to other applicants. A preferable approach is to
    ensure that such people applying for citizenship are subject to the same
    requirements as other applicants but that there is additional provision made to
    ensure that adequate facilities are available for such people to sit the test.
    
    
    
23. On this basis I recommend that the Australian Citizenship Act 2007 be
    amended to remove the special provision for people with hearing, speech or sight
    impediment or loss and to make additional provision to ensure such people are
    not disadvantaged by the citizenship procedures.

Flexibility to
cater for persons unfairly disadvantaged by the test

24. HREOC is concerned that the Bill does not give the Minister discretion under
    s 21(2A) to consider whether individuals or categories of applicants, other than
    those outlined in ss21(3) – (8), might be disadvantaged by having to sit
    the test. In this regard, HREOC notes that the wording of s 21(2A) is strict,
    requiring that the Minister is taken to be satisfied of the matters in
    paragraphs (d), (e) and (f) ‘if and only if’ the applicant has
    passed the relevant test.
    
    
    
25. HREOC considers that the Bill should make provision for an applicant, in
    appropriate cases, to:
    • undergo an alternative procedure for satisfying the eligibility conditions
      under s 23(2)(d), (e) and (f); or
    • be exempted from satisfying the eligibility conditions under s 23(2)(d), (e)
      and (f).
      
      
      
26. By way of illustration, applicants who have experienced trauma due to
    witnessing or experiencing serious bodily injury, rape, torture, murder or armed
    conflict, or applicants who have very limited education, may be at a serious
    disadvantage in having to pass the test. To avoid such persons being unfairly
    prevented from obtaining Australian citizenship, HREOC considers that it would
    be appropriate to provide a mechanism which enables applicants to apply to the
    Minister for an alternative procedure that does not disadvantage
    them.^[7]
    
    
    
27. HREOC submits that a suitable alternative procedure would be to enable an
    applicant to undergo an interview with an officer of the Department of
    Immigration and Citizenship to assess the requirements of s 23(2)(d), (e) and
    (f), along similar lines to the procedure that exists currently. This
    alternative procedure could be conditional upon the applicant sitting and
    failing the written test (either once or on a number of occasions) or could
    simply be triggered by an application to the Minister. In exceptional cases, it
    might also be appropriate for the Minister to waive the testing requirement
    altogether for a particular applicant.

Comparison with other
jurisdictions

28. HREOC’s recommendations to include a discretion to provide an
    alternative procedure or to waive the relevant eligibility requirements in
    exceptional cases follows the practice in other jurisdictions.
    
    
    
29. For example, in Canada, the Citizenship Act 1985 requires a
    prospective citizen to demonstrate that he or she:
    1. has an adequate knowledge of one of the official languages of Canada;
       and
    2. has an adequate knowledge of Canada and of the responsibilities and
       privileges of
       citizenship.^[8]
       
       
       
30. However, the applicable test procedure makes allowance for a person to
    demonstrate compliance with the above eligibility criteria by undergoing an
    interview with a citizenship judge as an alternative to formal
    testing.^[9]
    
    
    
31. The Canadian legislation also provides the Minister with a discretion to
    waive either of the above eligibility criteria on ‘compassionate
    grounds’.^[10] A further
    discretion is granted to the Governor in Council to direct a grant of
    citizenship where there exist circumstances of ‘special and unusual
    hardship’ or to ‘reward services of an exceptional value to
    Canada’.^[11] The Canadian
    legislation also provides that before a citizenship judge rejects an application
    for citizenship, the citizenship judge must consider whether or not to recommend
    an exercise of discretion on these grounds, namely compassionate grounds,
    special and unusual hardship or exceptional value to
    Canada.^[12]
    
    
    
32. Similarly, in New Zealand, the Citizenship Act 1977 allows the
    Minister to grant citizenship to the applicant if the Minister is satisfied that
    granting citizenship ‘would be in the public interest because of
    exceptional circumstances of a humanitarian or other nature relating to the
    applicant’^[13].
    
    
    
33. HREOC considers that the above approaches provide an important safeguard, by
    providing an element of flexibility to accommodate the individual circumstances
    of particular applicants who might be unfairly prejudiced in having to pass a
    formal citizenship test, but who would nevertheless make worthy Australian
    citizens.

Proposed amendments to the Bill to address these
concerns

34. Whilst there would be more than one approach in amending the Bill to address
    the concerns outlined above, HREOC suggests that s 23(2A) of the Bill could be
    amended to read:

    Paragraphs 2(d), (e) and (f) are taken to be
    satisfied if the Minister is satisfied that:

    (a) the person has, before making the application, sat a test approved in a
    determination under section 23A and successfully completed that test; or

    (b) the person has, before making the application, undergone an interview
    with a delegate of the Minister and satisfied that delegate that the applicant
    meets the eligibility requirements under paragraphs (d), (e) and (f); or

    (c) there exists exceptional circumstances that satisfy the Minister that it
    would be appropriate to waive the requirements of paragraphs (d), (e) and (f) on
    compassionate grounds.

35. In addition, a new s 23(2B) could be inserted in the Bill to
    read:

    (1) For the purposes of section 23(2A)(b), before undergoing
    an interview an applicant must first satisfy the Minister that there exists
    special circumstances to show that it would be more appropriate for that person
    to undergo an interview than a test.

    (2) In deciding whether to grant an applicant’s request under paragraph
    (1), the Minister shall have regard to the following factors:

    (a) the level of education and/or literacy of the applicant;

    (b) whether the applicant has experienced trauma or persecution which might
    materially impact upon his or her ability to prepare for and pass a test;
    and

    (c) whether there are other compassionate grounds indicating that an
    interview would provide a more appropriate method for assessing the
    applicant’s eligibility under sections 21(2)(d), (e) and (f).

F. ELIGIBILITY FOR SITTING THE TEST

36. Section 23A(3) of the Bill provides that the Minister’s determination
    to approve the citizenship test can also include eligibility criteria as to who
    may sit the test. This section applies in addition to the criteria in s
    21(2) which specify the basis on which a person is eligible to become a
    citizen.
    
    
    
37. HREOC submits that, in view of the eligibility criteria in s 21(2), there is
    no need to provide further criteria that must be satisfied in order to sit the
    test.
    
    
    
38. The inclusion of additional eligibility criteria in s 23A(3) might lead to
    a situation where the Minister has a discretion to block a person from sitting
    the test who would otherwise meet the eligibility criteria in s
    21(2).
    
    
    
39. HREOC’s proposal in this regard is similar to the approach adopted
    in Canada, where there are no additional eligibility criteria for sitting the
    test in addition to the eligibility requirements for citizenship
    itself.^[14]

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^[1] http://www.humanrights.gov.au/racial_discrimination/report/citizenship_paper_2006.html

^[2] See, eg, the discussion in the Explanatory Memorandum for the Bill at
[22].

^[3] See HREOC submission to
the Citizenship Taskforce, Department of Immigration and Multicultural Affairs
on the Discussion Paper Australian Citizenship: Much More Than Just a Ceremony,
September 2006, http://www.humanrights.gov.au/racial_discrimination/report/citizenship_paper_2006.html

^[4] HREOC is not alone in raising this issue. See Commonwealth, Parliamentary
Debates, House of Representatives, 21 June 2007, p 32 (Tony Burke,
Honourable Member for Watson)

^[5] Commonwealth, Parliamentary Debates, House of Representatives, 30 May
2007, p 6 (Kevin Andrews, Minister for Immigration and
Citizenship).

^[6] See the
Minister’s second reading speech for the Bill: Commonwealth, Parliamentary Debates, House of Representatives, 30 May 2007, p 6 (Kevin
Andrews, Minister for Immigration and
Citizenship).

^[7] See Submission
of the Human Rights and Equal Opportunity Commission to the Citizenship
Taskforce on the Australian Citizenship Discussion Paper, [44]-[49],
available at: http://www.humanrights.gov.au/racial_discrimination/report/citizenship_paper_2006.html

^[8] Citizenship Act R.S., 1985, c. C-29, ss 5(1)(d) and
(e).

^[9] See description of test
procedures at: http://www.cic.gc.ca/english/citizenship/cit-test.asp 

^[10] Citizenship Act R.S., 1985, c. C-29, s
5(3).

^[11] Citizenship Act R.S.,
1985, c. C-29, s 5(4).

^[12] Citizenship Act R.S., 1985, c. C-29, s
15.

^[13] Citizenship Act 1977 (New Zealand), s 9(1)(c).

[14] For
a discussion of who can apply for Canadian citizenship, see: http://www.cic.gc.ca/english/citizenship/retain-eligibility.asp