The Australian Government this week introduced a new Bill into parliament to amend the Citizenship Act 2007. The move comes just two weeks after submissions to its discussion paper had closed – those submissions have not been made public.
In short, the proposed changes will require prospective citizens to apply and be approved for Australian citizenship. Applicants must then make a pledge of allegiance to Australia before they can become an Australian citizen.
As foreshadowed in the discussion paper, the proposed changes include a tightening of residency requirements (from one year of permanent residency to four), a requirement for an applicant to provide evidence of ‘competent English’, and a requirement for applicants to demonstrate their integration into the Australian community and adherence to Australian values. My colleague Dr Sangeetha Pillai and I have outlined our concerns about these proposed measures in our submission to the discussion paper.
The Bill also proposes to give the Minister an array of discretionary powers to refuse an application for citizenship by conferral, descent and adoption, or to revoke citizenship. These proposed powers were not in the government’s discussion paper, or elsewhere in the public discourse. The proposed powers include:
- A mandatory cancellation of approval in circumstances where the applicant is required to make a pledge of allegiance to Australia and the Minister is satisfied that they would not now be approved due to identity, national security or criminal offences.
- A discretionary cancellation of approval in circumstances where the applicant is required to make a pledge of allegiance to Australia and the Minister is no longer satisfied that the applicant meets any of the eligibility criteria (for example, that the applicant displays behaviour consistent with Australian values).
- A discretionary power to delay a person from making a pledge of allegiance to become an Australian citizen if the Minister is considering visa cancellation or cancellation of citizenship approval.
- A discretionary power to cancel approval if a person has not made a pledge of allegiance within 12 months of receiving a notice of approval.
- A discretionary power to revoke a person’s citizenship in circumstances where the Minister is satisfied that it was acquired through fraud or misrepresentation (regardless of whether the fraud was perpetrated by the Australian citizen or some other person).
- The power to determine the circumstances under which a person is not eligible to sit the citizenship test (for example, because they have previously failed the test).
- The power to determine that certain decisions relating to citizenship applications made personally by the Minister in the ‘public interest’ cannot be the subject of a review application to the Administrative Appeals Tribunal (AAT).
- The personal power to set aside decisions made by the AAT on character issues where the Minister considers it is in the ‘public interest’.
These new powers would give the Minister for Immigration unchecked and almost unrestrained powers to act as a gatekeeper to formal membership of the Australian community. One can already foresee problems that may arise if the bill is passed into legislation.
For example, it is difficult to see how there would be consistent decision-making around whether someone has properly ‘integrated’ into Australian society, or the type and level of behaviour that would be deemed ‘inconsistent’ with Australian values. To the extent that these are value judgements that must be made across thousands of applications, it is likely to result in inconsistent decision-making, leading to judicial review. Precedents can already be seen in 'good character' cases appealed to the AAT, as there is no definition in the Citizenship Act as to what that is.
More fundamentally, the proposed powers to deny a person access to the AAT, and to overrule AAT decisions relating to character in the ‘public interest’ undermines the rule of law. The Explanatory Memorandum justifies these powers on the basis that the Minister ‘has particular insights into Australian community standards and values and what is in Australia’s public interest’. As such, 'It is not appropriate for an unelected administrative tribunal to review such a personal decision of the Minister on the basis of merit, when that decision is made in the public interest.'
The Explanatory Memorandum also contends that a person is able to seek judicial review of any such Ministerial decisions. However, courts have held that the term ‘public interest’ is a political decision for the Minister of the day to determine. Because courts cannot engage in merits review, any challenge on the grounds that the Minister did not act in the ‘public interest’ is likely to fail.
Citizenship plays an important role in promoting social cohesion, national identity and personal belonging. The discussion paper remarked that Australian values include ‘democracy, freedom, the rule of law, equality of opportunity – a “fair go” for all’.
It is difficult to see how the Bill is consistent with those values. Abandoning the rule of law in favour of a suite of unchecked executive powers will not result in ‘fair go’ for all. If it is to embrace ‘equality of opportunity’ and a ‘fair go’, citizenship law and policies should be framed as a pathway to inclusion into our society, rather than as a tool for exclusion.