Citizenship Policy Department of Immigration and Border Protection PO Box 25 Belconnen, ACT 2616 MIA Submission to the National Consultation on Citizenship The MIA as the peak professional association for Registered Migration Agents is grateful for the opportunity to provide input into the National Consultation on Citizenship. The MIA s submission addresses both the questions posed by the National Consultation survey and concerns on issues surrounding the implementation of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. If we can be of further assistance, please contact our Chief Operating Officer, Mr Kevin Lane, (02) 9249 9000 Yours faithfully, Angela Chan FMIA NATIONAL PRESIDENT 30 June 2015
SUBMISSION National Consultation on Citizenship P a g e 2
The Migration Institute of Australia (MIA), as the professional association of Registered Migration Agents, holds interests in all areas of migration legislation and policy development and appreciates the opportunity to provide comment to the National Consultation on Citizenship, particularly on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. The MIA has some concern over a number of issues related particularly to the new Amendment to the Citizenship Act, including the maintenance of the rule of law, the transparency of processes used to revoke the citizenship of dual nationals and the moves to possibly make the provisions of the Act retrospective. P a g e 3
Recommendations The MIA makes the following recommendations in relation to this national consultative process: The MIA recommends that the National Consultation process recognises that while Australian Citizenship is highly valued, some permanent residents are unable to afford themselves of that opportunity due to restrictions imposed by the citizenship of their country of origin. The MIA recommends that online technologies and social media be used to further the citizenship message to the broader community. The MIA recommends that the eligibility period for attaining Australian citizenship not be increased. The MIA recommends that the rights of children be considered be considered of utmost importance before their citizenship is revoked. The MIA recommends that any changes to the framework for the citizenship test do not disadvantage those with lower levels of education or English language ability. The MIA recommends that the number of times a person can sit the citizenship test not be limited. The MIA recommends that a standardised level of English language ability not be introduced as a requirement for Australian citizenship. The MIA recommends that further resources be devoted for citizenship ceremonies to be conducted in a manner that reflects the gravity of attaining this status in Australia. The MIA recommends that further resources be devoted to decreasing the current waiting times for citizenship conferral ceremonies. The MIA recommends that any processes introduced to revoke the citizenship of Australian citizens be transparent and adhere to the rule of law. The MIA recommends that the rights of children be considered be considered of utmost importance before their citizenship is revoked. The MIA recommends that the provisions of the Australian Citizenship (Allegiance to Australia) Bill 2015 not be made retrospective. P a g e 4
For many people, Australian citizenship is often the final step in an individual s long journey to Australia. With this privilege also comes an ongoing commitment to this country and its people, and the acceptance of the obligations, rights and responsibilities of citizenship. Value of Australian citizenship The Migration Institute of Australia as the professional association for registered migration agents understands, through its members and their migrant clients, the value placed on Australian citizenship. This step is not taken lightly by those who apply for Australian citizenship and in many cases involves the revocation of their original citizenship and even the entitlements of their birth countries. There are still countries that do not support dual citizenship 1 including India and China, two of the largest sources of migrants to Australia. For Chinese applicants taking Australian citizenship means giving up their Chinese citizenship, which then also results in them losing their rights to property ownership in China. This is also a barrier to Chinese applicants taking Australian citizenship, especially those business investors for the Significant and Premium Investor visa classes, who have significant business and other financial interests in their country of origin. This leaves a significant number of permanent residents that may desire citizenship, but are prevented from taking the step for structural reasons. However, this is not a problem the Australian Government is likely to be able to resolve. The MIA recommends that the National Consultation recognises that while Australian Citizenship is highly valued, some permanent residents are unable to afford themselves of that opportunity due to restrictions imposed by the citizenship of their country of origin. The MIA supports the Government s endeavours to ensure Australian citizenship is understood and respected through programs such as the civics curriculum. This program is an important vehicle to bringing this knowledge to school children in an effort to instil this respect and the understanding of the obligations of Australia citizenship from the earliest of ages. However, it must be recognised that these same children may have parents or other adults who influence their thinking. At its most innocuous this is the pride of coming from a different country of origin and bringing the best of their customs to enrich the Australian way of life. At its worst, we now observe the radicalisation of youths who were born in this country and who automatically became Australian citizens at birth. Now that online technology and media have become so entrenched in our lives, using arenas such as libraries and community groups to further the citizenship message may be somewhat outmoded. It would seem logical that online and social media campaigns be engaged to spread this message. 1 Andorra, Austria, Azerbaijan,Burma, Bahrain, Botswana, Japan, China,Czech Republic, Denmark, Fiji,India,Indonesia, Ecuador, Estonia, Iran, Poland, Papua New Guinea, Brunei, Japan, Peru, Kuwait, Kenya, Kazakhstan, Chile, Kiribati, Poland, Korea, Kuwait, Denmark, Latvia, Singapore, Slovakia, Ecuador, Lithuania, Solomon Islands,Fiji,Malaysia, Mauritius, Netherlands, United Arab Emirates (UAE), Thailand, Mexico, Nepal, Venezuela, Norway, Zimbabwe, Mauritius, Myanmar, Nepal P a g e 5
The MIA recommends that online technologies and social media be used to further the citizenship message to the broader community. Citizenship eligibility, test and pledge A person must be in Australia lawfully for four years, the last twelve months as a permanent resident and with minimum residency requirements during this time to attain citizenship. For the any migrants who now arrive via the pathways of the Temporary Work (Subclass 457) and as students initially studying and then moving to employment in this country, four years is a long period of time to wait. This eligibility period should not be increased. It may be that these ultimate Australian citizens do not fully consider the obligations that Australian citizenship confers on them in the early days of their residency in Australia. The Government might consider more overt methods of increasing this awareness earlier in these migrants stay, not just from when they gain permanent residency, such as providing information with visa grants, much like it does with worker protection information for 457 visa holders. The MIA recommends that information be given to potential permanent residents and citizens when they arrive in Australia initially, not when they attain permanent residency and may be considering citizenship. The stronger framework proposed for the citizenship test and the Pledge of Commitment would generally seem in keeping with the values of the Australian way of life. However, these would need to be considered carefully to ensure, good and loyal applicants for Australian citizenship are not disadvantaged in the citizenship test because they have low levels of education or English and cannot fully comprehend issues such as the rule of law, a rule that many Australian born citizens would not be able to successfully explain. The MIA recommends that any changes to the framework for the citizenship test do not disadvantage those with lower levels of education or English language ability. The notion of limiting the number of times a person could sit the citizenship would seem counter intuitive. If a person is so committed to gaining citizenship that they need to sit the test multiple times until they have passed it, how does preventing this support that commitment? The MIA recommends that the number of times a person can sit the citizenship test not be limited. Standardisation of English language levels for Australian citizenship requirements risks the appearance of a return to the White Australia policy. Many loyal Australian citizens with limited English who have managed to build successful businesses in this there adopted country, to limit the opportunity for talent such as this to become Australian citizens goes against the Australian concept of egalitarianism and a fair go for all. P a g e 6
The MIA recommends that a standardised level of English language ability not be introduced as a requirement for Australian citizenship. There is also a worrying trend that citizenship ceremonies are not given the emphasis that they once were. Anecdotally it has been reported that the Department of Immigration and Border Protection (DIBP) now informs applicants that local Councils, a tradition authority for conducting citizenship ceremonies, are too busy to now do this. Metropolitan applicants are whisked in large groups into DIBP offices, take the pledge as a group, given a certificate and quickly ushered out again. Reducing the citizenship ceremony to a quick business transaction does not send the message to new citizens, of the gravity of the decision,that this Consultation appears to desire. The MIA recommends that further resources be provided for citizenship ceremonies to be conducted in a manner that reflects the gravity of attaining this status in Australia. However, the MIA does not wish to recommend a process that will increase the already long waiting period applicants must endure before they can take the Pledge and have citizenship conferred. Applicants for citizenship report waits of 4-6 months for appointments for a citizenship ceremony. The MIA recommends that the eligibility period for attaining Australian citizenship not be increased. The MIA recommends that further resources be devoted to decreasing the current waiting times for citizenship conferral ceremonies. Citizenship in an age of home grown terrorism The MIA commends the Government s efforts in protecting Australia and its people from both overseas and home grown terrorist threats. While the MIA accepts the amendments contained within the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Bill) are aimed at protecting our citizens, the way in which some of the provisions may be implemented is of some concern. The main issues of contention are the maintenance of the rule of law, the transparency of processes used to revoke the citizenship of dual nationals, the deterrent of revoking citizenship and making the amendment retrospective. It appears only right and just that an individual who perpetrates an act of terrorism against Australia, however defined, should be punished. The revocation of Australian citizenship seems a relevant sanction in these circumstances, when and if evidence of such an action is obtained. However, when Government officials make statements such as we all know there are evidentiary issues with prosecutions of people for offences abroad... and the accused may be let off as the justification for implementing policies, 2 alarm bells must ring throughout our society. The Minister is also excused from applying the rules of natural justice or notifying a person for the reasons for the cessation of their citizenship under the new powers of s33aa. The amendment enables the Minister to act on the basis of 2 Sydney Morning Herald Courts might let suspected terrorists off, says Tony Abbott, 19 June 2015, Latika Bourke P a g e 7
information from the Australian Security Intelligence Organisation (ASIO) that is not a security assessment and is therefore not subject to rights of notice and merits review. It is a tenet of the Australian legal system that an individual is presumed innocent until proven guilty. A finding beyond reasonable doubt is required to secure a conviction and our legal system is built on the principle that the accused will be afforded the opportunity to be informed of the charge against them, to be able to secure legal counsel and to be tried and defend themselves, to call witnesses and examine the witnesses against them 3 These new powers do not necessarily appear to adhere to this principle. Information not deemed in the public interest or to be highly sensitive to Australia s defence can be protected from disclosure. While such a stance is understandable, the extent to which this power is implemented and the process by which such decisions are taken must be transparent. The notion of the public interest is a fluid concept that may be dependent on the ideological beliefs and attitudes of the Government of the day. The Explanatory Memorandum for the earlier changes to the Citizenship Act stated that an elected Member of Parliament and Minister of the Crown, the Minister has the privilege of representing the Australian community and has gained a particular insight into community standards and values. 4 The Explanatory Memorandum for the current Bill, similarly argues that the Minister is well placed to make a assessment of the public interest as elected Member of Parliament represents the Australian Community and has a particular insights into Australian community standards and values. 5 There are notable historical precedents to warn of the effect the perceptions of those making such decisions can have on the operation of such a system. The Minister still retains strong powers to give practical effect to the revocation and may act unilaterally, without regard to evidence. The very nature of the prosecution process creates safeguards through the rule of law and separation of powers and must be preserved throughout this process to ensure the transparency of the process and the right to natural justice of the accused. Indeed the Statement of Compatibility with Human Rights prepared as part of the process of drafting the Bill states that under Article 14: Equality before courts and tribunals, of the International Convention on Civil and Political Rights, the provisions of the Bill offer only a level of ensured transparency and accountability. 6 The Government and law makers must ensure that any evidence used to revoke or cease an individual s citizenship meets the evidentiary requirements of Australia s rule of law. Citizens may inadvertently, unintentionally or against their will come in to contact with terrorist or organisations. The children of terrorists provide a good example. They are not a threat or have done no harm, but may be caught by these provisions and lose their Australian citizenship. 3 Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, Explanatory Memorandum 4 Department of Immigration and Border Protection, Australian Citizenship and Other Legislation Amendment Bill 2014; Explanatory Memorandum, para 144 5 Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, Explanatory Memorandum, para 113 6 Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, Explanatory Memorandum, p 31. P a g e 8
The MIA recommends that any processes introduced to revoke the citizenship of Australian citizens be transparent and adhere to the rule of law. The Government states that only dual citizens will be stripped of their Australian citizenship under this operation of law and no individual will be rendered stateless. The new subsection 33AA(1) applies to all Australian citizens regardless of how they became attained their citizenship, including by birth. This begs the question of the dual national who has never formally invoked their citizenship in the other country to which they may have the right. How will the case of the Australian born terror suspect be treated if they are eligible for citizenship of another country, but that country does not want to accept responsibility for them either? How will such situations be resolved? Which country will take precedent? How will the citizenship of the children of these former citizens be addressed. Section 36 of the Citizenship Act provides for the cessation of the citizenship of a child when their parents citizenship ceases. This would appear harsh in circumstances where the child is not of an age to determine their own path independently of that parent and is adversely affected by their actions. Children may also have their citizenship revoked under the Bill on the basis of their own actions. The Australian Criminal Code recognises that children have a lesser capability to discern lawful behaviour and addresses this with differing standards of culpability and punishment, yet this new Bill appears to be less lenient than that code. Care will need to be taken when citizenship of a child is to be revoked and the long term consequences for affected children recognised. Children unable to return to Australia because they have lost their citizenship due to the revocation of their parents citizenship may be forced to live in countries with very low standards of living, education and health care. This would not be in the best interests of the child and against Australia s obligations under the provisions of the Convention on the Right of the Child. The MIA recommends that the rights of children be considered be considered of utmost importance before their citizenship is revoked. Finally, the MIA is concerned about the moves to make the provisions of the Citizenship Amendment retrospective. It is highly unusual for Australian legislation to be made retrospective. An individual who has been tried, sentenced and punished on the basis of a crime within the context of the legislation at that time. To make the Bill retrospective then adds another layer of punishment that was not conceived of at the time they were tried. Will this set a precedent for making other legal amendments retrospective across the criminal legal system? The MIA recommends that the provisions of the Australian Citizenship (Allegiance to Australia) Bill 2015 not be made retrospective. The MIA requests that the National Consultation on Citizenship be cognisant of the far reaching effects changes wrought under the banner of ensuring public security in an age of home grown terrorism may have. Citizenship lost on the basis of information not subject to P a g e 9
the rules of natural justice, or because of the actions of one s parents, or on the basis of prior convictions, does not appear a sound basis for the implementation of this severe form of dispossession. P a g e 10