| |
Bills Digest no. 188 2006–07
Australian Citizenship Amendment (Citizenship Testing) Bill 2007
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
-
requires certain applicants for Australian citizenship
by conferral to have successfully completed a citizenship test prior
to making an application
-
outlines the general eligibility criteria for Australian
citizenship, and
-
provides that the fee prescribed for an application
to become an Australian citizen may include a component that relates
to the test or tests sat by the applicant.
On 11 December 2006, the Australian Government announced
the introduction of a test for certain applicants for Australian citizenship.(2)
The policy detail had been set out in the September
2006 Discussion Paper, Australian
citizenship: much more than a ceremony; ‘Considerations of the merits
of introducing a formal citizenship test’ and confidential submissions
were invited.
In all 1 644 submissions were
received, 1 486 from individuals and 158 from organisations. Individual
submissions were not made public but DIAC has provided a summary
of their positions. Submissions from 116 organisations were made publicly
available.(3) The submissions are analysed in an article
by Katharine Betts and Bob Birrell, ‘Making
Australian citizenship mean more’, People and Place, v. 15(1),
2007, pp. 45-61.
The concept of a citizenship test to aid integration
is a policy measure increasingly employed in Europe, as discussed below.
The debate there is clearly framed around the integration of large Muslim
communities in European nations, and the notion of ‘home-grown terrorism’
in post-11 September Western societies.(4)
The test itself is not yet public. When introducing
the bill to the Parliament, Minister Kevin Andrews stated:
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)
Media reports have stated that the development of the
booklet has delayed the introduction of the Bill until now.(6)
The Minister also explained the operational aspects of the test:
The test is expected to be computer based and consist
of 20 multiple-choice questions drawn randomly from a large pool of
confidential questions. Each test is expected to include three questions
on the responsibilities and privileges of Australian citizenship. The
pass mark is expected to be 60 per cent including answering the three
mandatory questions correctly. A person will be able to take the test
as many times as required in order to pass.(7)
On 13 June 2007, the Senate referred the provisions
of the Bill to the Legal and Constitutional Affairs Committee for inquiry
and report by 31 July 2007. Submissions will be available after 6 July.
The Senate Committee for Scrutiny of Bills in the Alert
Digest No. 6 of 2007 criticise the commencement provisions of the
Bill and stated that it also contains insufficient scrutiny of instruments
and excludes proper merits review. These criticisms are dealt with
in full under the ‘Main Provisions’ section below under discussion of
subclause 2(1) and item 5 of Schedule 1.
An extensive discussion of citizenship issues and the
policy background to Australian Citizenship Act 2007 can be found
in Bills
Digest no. 72 2005–06.
For an analysis of some the historical and legal aspects
of citizenship see also Peter Prince, ‘Mate! Citizens,
aliens and ‘real Australians’—the High Court and the case of Amos Ame’,
Research Brief, no. 4, Parliamentary Library, Canberra, 2005–06.
Section
21(2) of the Australian Citizenship Act 2007 already
contains a range of eligibility requirements for citizenship such the
person must be
-
aged 18 or over
-
a permanent resident
-
mental capacity (understands the nature of the application
at that time)
-
satisfies the residence requirement (now 4 years under
section 22)
-
possesses a basic knowledge of the English language
-
has an adequate knowledge of the responsibilities
and privileges of Australian citizenship
-
likely to reside, or to continue to reside, in Australia,
and
-
is of good character.
The official Australian citizenship website maintained by the Department
of Immigration and Citizenship outlines the ‘privileges and responsibilities’
accorded to Australian citizenship and states that citizenship ‘formalises
your membership of the Australian community’:
Privileges of Australian Citizens
It entitles you to privileges of Australian citizenship giving you the
right to:
-
live in Australia
-
apply for an Australian passport and to leave and
re-enter Australia without applying for a resident return visa
-
seek assistance from Australian diplomatic representatives
while overseas
-
vote to help elect Australia's governments
-
stand for Parliament
-
work in the public service
-
serve in the armed forces
-
register as Australian citizens by descent any of
your children born overseas after you become an Australian citizen.
Responsibilities of Australian Citizens
Citizenship also brings with it responsibilities. For example,
citizens are required to:
-
-
enrol on Federal and state/territory electoral
registers
-
-
defend Australia should the need arise
-
serve on a jury if called to do so.(8)
In fact, all categories of
migrant and visa holders have to obey Australian laws when present in
the territory (noting those on diplomatic visas may be immune from prosecution).
What the website does not emphasise is that there may
be more pragmatic reasons for making citizenship process more of a hurdle
than currently exists. Once people take out citizenship they cannot
be removed through use of the criminal deportation power. This has
been contentious in the context of Ministerial comments about the citizenship
history of Sheik Hilali.(9)
This concern is also reflected in the introduction
of character tests for permanent residents and resumption of citizenship
contained in the Citizenship Act.
Canada
The residency requirement is three years lived in Canada
as a permanent resident out of the four years before applying. Applicants
must be able to communicate in English or French, must ‘know about Canada’,
and must ‘know about the rights and responsibilities of citizenship’.
Applying for Citizenship
has information about the application, residency requirements, citizenship test
(a list of questions based on the booklet A Look at Canada) and
citizenship ceremony.
Further information
is available at http://www.cic.gc.ca/english/citizen/menu-howto.html
United Kingdom
Residency requirements are: presence in the UK for
five years prior to application and no absence from the UK of more than
450 days over the five-year period; 270 days over the 3-year period;
and 90 days in the year prior to application.
With effect from 1 November 2005, all new applicants
are required to demonstrate knowledge of English and also have to pass
a ‘Life in the UK’ test. Those who have inadequate English (below ESOL
level 3) are required to undertake language courses which incorporate
information about ‘Life in the UK’. See here for detailed information
regarding British
Citizenship eligibility.
For further information on the Life in the UK test,
visit the Life in the UK
test website.
The UK measures have been controversial. Supporters
of the test make the following contentions:
-
it is important that people should have an understanding
of the democratic society they are entering(10)
-
an ‘understanding of the British language and our
way of life is vital. We must maintain and further develop a society
in which new citizens feel welcome and where there is a clear understanding
of the expectations of all residents—new and old’(11)
-
the test was not about assimilation but integration
of minority communities, some of whose lack of English, particularly
among women, meant they were living isolated lives.(12)
Those against the test in the UK hold that:
-
a ‘rounded knowledge of history’ and of Britain’s
institutions, rather than ‘hot air about supposed British values’
would better equip young adults to play a full role in society(13)
(the test has been much criticised for its neglect of history)
-
the test gives no insight into how to mix socially
or in the workplace, focusing instead on ‘ivory tower’ issues such
as the courts, the church and the queen(14)
-
it will be seen as a way of excluding people from
British citizenship.(15)
The initial proposal in 2002 was welcomed by the Conservatives,
the Liberal Democrats, the Commission for Racial Equality and the Refugee
Council, but some raised fears that the new requirement could amount
to an attempt to impose cultural and religious values on new migrants.(16)
In the first nine months of its operation in the UK
(November 2005–July 2006), 68.7 per cent of candidates passed the test.(17)
Readers should note however, that unlike Australia,
the UK has a Human Rights Act, and is a signatory to the European Convention
on Human Rights which allows appeals to the Strasbourg court on issues
of discrimination and asylum from UK courts.
United States of America
Residency requirements are: presence in the US continuously
for five years as a lawful permanent resident with no single absence
from the US of more than one year; physical presence in the US for at
least 30 months out of the previous five years; and has resided within
a state or district for at least three months.
Applicants must show that they are a person ‘of good
moral character’ for the five year period; that they can read, write,
speak and understand words in ordinary usage in the English language,
and must demonstrate a knowledge and understanding of the fundamentals
of the history and of the principles and form of government of the US
(exceptions apply).
Further information is at http://uscis.gov/graphics/services/natz/index.htm
which includes:
-
A
Guide to Naturalization: A comprehensive booklet which provides
information on the benefits and responsibilities of citizenship, an
overview of the naturalization process and eligibility requirements.
-
Eligibility
Requirements and Testing: This page details general and special
requirements for becoming a naturalized US citizen, and includes an
interactive eligibility worksheet. Additionally, the page provides
links to study guides and an interactive self test for U.S. history
and government.
Reactions to the test have been polarised, as was reported
by the London newspaper The Guardian in late 2006 when
a revision of the test was piloted for the first time since 1986:
“Our main concern is that the test does not become even
more daunting an obstacle to citizenship than it is right now,"
said Fred Tsao, of the Illinois Coalition for Immigrant and Refugee
Rights.
Mr Tsao pointed out that in addition to the stress of having to pass
the exam, there is the financial hurdle: naturalisation currently costs
$400 (pounds 203) to complete, and may rise to $800 under current proposals.
His group and other immigration organisations like it have taken to
calling the citizenship test "the second wall". The first
wall is the physical structure being erected along 700 miles of Mexican
border, to keep out illegal immigrants. This second wall, the groups
contend, is a barrier to full participation by legal immigrants who
have lived and worked in America for at least five years.
But the phrase is disputed by the US citizenship and immigration service.
"I absolutely hate that term," said Chris Ratigan, an official
within the service. "We are trying to build a wider bridge to
citizenship. When someone decides to become an American citizen -
and what a wonderful decision that is - we want them to feel that
after they raise their hand and take the oath to America they are
fully ready to participate in this country."(18)
The Netherlands
The Netherlands has required since 2003 that candidate
citizens undertake a four-hour test on the Dutch language and national
knowledge. The naturalisation test is designed to assess whether
someone has integrated sufficiently into Dutch society.
The test consists of two parts. The first part of the
test focuses on the individual’s knowledge of Dutch society. The candidate
is given 45 minutes to answer 40 multiple choice questions on subjects
such as form of government, work, money, housing, healthcare, traffic
and transport. The second part focuses entirely on four language components:
listening, speaking, reading and writing. The level of the test is equal
to KSE2-NT2 (Dutch as a second language). This entails that an individual
must be able to make him or herself understood in Dutch and be able
to write at a level that makes him understandable for others.
The Netherlands is considered a European leader in
this area. The recent rise in perceptions of insecurity and deep social
divides between immigrant and existing populations are prompting immigrant
integration reform in most European states. Germany, the Netherlands,
Norway, Austria, Denmark, Switzerland and parts of Belgium now all mandate
integration. While tailored to the individual state, these programs
generally require the immigrant to be able to speak a basic level of
the host-country language and to learn the country’s culture and customs.
Such programs are enforced by a range of measures, from fines (Austria,
Netherlands) to the suspension of social benefits (Belgium, Denmark)
to the removal of residency rights (Germany), to expulsion (Austria).
In March 2006, the then French Interior Minister, now
President, Nicolas Sarkozy proposed at a G-6 meeting that the adoption
of an integration contract should be considered. This contract would
require immigrants to learn the language of their adopted country and
accept relevant social norms or risk expulsion.(19)
New Zealand
Residency requirement is three years permanent residence.
Applicants must be able to understand and speak English, be of ‘good
character’, and understand the ‘responsibilities and privileges of NZ
citizens’. These terms and conditions are expanded on and explained
in more detail here.
Public opinion is generally supportive of the citizenship
test, as shown by this Newspoll.(20)
Katharine Betts has therefore identified a schism between the general
public and those she terms ‘left-wing elites' who dismiss it.(21)
Several media outlets have released ‘leaked’ questions
which the Minister derided as made up.(22) The ‘test’ was
taken by various politicians and there was a strong debate about the
correct answers to some of them, for example who exactly is Australia’s
head of state,(23) is the Judeo-Christian tradition still
the basis for the nation's values system,(24) and even, is
ping pong really Australia’s favourite sport?(25)
The idea of a test has also lent itself to humour such
as questions like the following (a favourite of the author):(26)
More serious community reaction came in relation to
the release of the Budget 2007 figures. Federation of Ethnic Communities'
Councils chairwoman Voula Messimeri said the $123.6 million funding
for the citizenship test was a large investment in a potentially divisive
policy:
Too much emphasis has been placed on citizenship rather
than support services and community initiatives that are critical to
building an inclusive society.(27)
Media
A sample of recent media reaction follows:
Coalition backbencher Petro Georgiou MP has been vocal
in opposition to the test. He sees the measures contained in the bill
as a threat to inclusiveness:
What is involved – even if it is not intended – is a
fundamental political and social regression that will erect unreasonable
and unnecessary barriers to citizenship that are unprecedented in this
country.(28)
In a recent speech, he analyses six reasons put forward
in support of the test:
-
Reason #1: Increased immigration of people from cultures
vastly different from our own
-
Reason #2: The present test is too easy, resulting
in citizenship not being valued
-
Reason #3: A real incentive to learn English
-
Reason #4: We should follow other countries
-
Reason #5: There is overwhelming public support for
the proposed test
-
Reason #6: It will reassure the Australian people
Georgiou goes on to refute the empirical basis and
premise of each of these reasons and concludes:
the fact that Australia’s citizenship laws have been
made progressively more inclusive has provided a basis of trust, confidence
and achievement. The fact that we accepted people with modest English
as citizens has broken down barriers, not maintained them. The establishment
of a new test that would exclude people who are committed to Australia
and could pass the present test will create barriers, restrict opportunities,
and impede participation. It would not be apparent immediately but it
would happen, and it would diminish Australia.(29)
However, media reports state that Georgiou has not
received widespread support from other backbenchers, in contrast to
the position on the Migration Amendment
(Designated Unauthorised Arrivals) Bill 2006 in May 2006.(30)
The ALP has focused on lack of access to the questions
in the test. As Tony Burke stated in March 2007:
On the day John Howard and Andrew Robb held their press
conference back in December announcing that they had a 30 question test
drawn randomly from 200 listed questions, Kevin Rudd asked me to write
to Andrew Robb to get a copy of the 200 questions.
We got a letter back some days later saying that they hadn’t designed
a 30 question test yet. Not a single one of the 200 questions had been
written. Nor had they even concluded the source document on which that
test would be based. There already is a citizenship test. Exactly how
different the new test is to the current one is something we don’t know
the answer to until we actually see it. The concept of a test is something
we already have. Labor has no problems with that. Whether the new test
will be reasonable or unreasonable depends on what’s in it and so far
even the government doesn’t seem to know.
…We want to see just how different the new test is. The current test
has a high degree of flexibility. It’s conducted over the counter. There
may be ways that you could formalise it and make it run slightly more
smoothly. Until we actually see the test though, it’s difficult to give
any conclusion to those questions.(31)
Democrats’ Deputy Leader, Senator Andrew Bartlett,
says the government’s new citizenship test is a ‘waste of money that
does little more than inflict double-standards on migrants’.
The Budget revealed that one hundred and twenty-three
million dollars is being spent on this citizenship test, including ten
million dollars for ‘Australian values statements’ and over six million
for an ‘Australian way of life booklet… If the government was genuine
about encouraging migrants to integrate and participate fully in Australian
society, it would be spending this money on widening settlement assistance
and support for migrants, rather than wasting it on jingoistic propaganda.(32)
In December 2006, Greens Senator Kerry Nettle criticised
the new citizenship testing regime announced by the Prime Minister as
'nothing more than cynical wedge politics':
If the Australian value of celebrating multiculturalism
were part of this new test I think John Howard would fail it…These tests
will prove nothing, and achieve nothing beyond wedging the Labor Party
in a cynical use of race politics.(33)
The Explanatory Memorandum puts the estimated costs
associated with this Bill at $123.6 million over 5 years from 2006-07,
of which $107.4 million is the estimated cost for the citizenship test.
This amount has been included in the 2006-07 Additional Estimates and
2007-08 Budget and forward year estimates.(34)
For further information see: Budget 2007 media release
$123.6
million for Australia’s New Citizenship Test and Fact
Sheet: Citizenship Test.
Item 2 in the table
of proposed subclause 2(1) of the Bill provides that the
amendments proposed in Schedule 1 will commence on Proclamation, with
no time being specified within which the amendments must commence in
any event. The Scrutiny of Bills Committee makes adverse comment on
this item:
The Committee takes the view that Parliament is responsible
for determining when laws are to come into force. The Committee will
generally not comment where the period of delayed commencement is six
months or less. Where the delay is longer the Committee expects that
the explanatory memorandum to the bill will provide an explanation,
in accordance with Paragraph 19 of Drafting Direction No. 1.3.
In this instance the explanatory memorandum indicates that the Minister
needs to have this broad discretion to determine the date of commencement
of the amendments proposed by the bill on the basis that ‘an unspecified
period of time is required prior to commencement to implement arrangements
for the test and any computer systems required to conduct the test and
to ensure that applicants for Australian citizenship who will be required
to complete the test have reasonable access to necessary information
and testing facilities.’ The Committee seeks the Minister’s advice whether
it would be possible to make the necessary arrangements within a fixed
period after Assent and thereby limit the currently unfettered discretion
granted to the Minister.
Pending the Minister’s advice, the Committee draws Senators’ attention
to the provision, as it may be considered to delegate legislative powers
inappropriately, in breach of principle 1(a)(iv) of the Committee’s
terms of reference.(35)
Proposed subparagraph 10(2)(c)(i) provides that
obtaining the personal identifier is necessary for assisting in the
identification of, and to authenticate the identity of, a person in
relation to an citizenship application or seeking to sit a citizenship
test.
The term ‘personal identifier’ is currently defined
in section 10 of the Act to include:
-
fingerprints or handprints of a person
-
a measurement of a person’s height and weight
-
a photograph or other image of a person’s face and
shoulders
-
an iris scan
-
a person’s signature, or
-
any other personal identifier prescribed by the regulations
(in accordance with subsection 10(2) of the Act).
Item 4 repeals existing subsection 21(2) and
substitutes it with proposed subsection 21(2) and proposed
subsection 21(2A).
Proposed subsection 21(2) provides that a person
applying to become an Australian citizen by conferral may be eligible
if he or she satisfies the general eligibility provisions in paragraphs
21(2)(a) to (h).
The main change is to proposed paragraph 21(2)(f)
– it will now include the requirement that an applicant has an adequate
knowledge of Australia, in addition to the requirement that an applicant
has an adequate knowledge of the ‘responsibilities and privileges’ of
Australian citizenship.
Proposed subsection 21(2A) provides that paragraphs
21(2)(d), (e) and (f) are taken to be satisfied only if the Minister
is satisfied that the person has, before making the application, sat
a test approved by the Minister under proposed section 23A and has successfully
completed that test.
The Explanatory Memorandum underlines the mandatory
nature of the test as drafted:
There is no other way for these criteria to be satisfied,
other than by successfully completing a test. A person applying under
subsection 21(2) will not be eligible to become an Australian citizen
unless he or she has successfully completed a test prior to applying
for citizenship.(36)
This amendment should be read in conjunction with item
11, which inserts proposed subsection 53(2), which requires
the Minister to personally approve a test by a determination in writing
under proposed subsection 23A(1).
Item 5 inserts proposed section 23A.
Proposed subsection 23A(1) provides that the
Minister must approve, by written determination, one or more tests for
the purposes of proposed subsection 21(2A).
The Explanatory Memorandum states that the requirement
for multiple tests:
…allows for the possibility that the Minister may consider
that some people, for example those with low levels of literacy, may
need to be given the opportunity to demonstrate that they meet the criteria
in paragraphs 21(2)(d), (e) and (f) in a different way to the majority
of prospective citizenship applicants.(37)
Proposed subsection 23A(2) provides that the
written determination must also specify what amounts to the successful
completion of the test.
The Explanatory Memorandum states:
What constitutes successful completion of the test may
be more than correctly answering 50% of the questions asked. For example,
in the United Kingdom, applicants must correctly answer 75% of questions
asked. In Canada, applicants must correctly answer 60% of random questions
asked, and a further three mandatory questions on the responsibilities
and privileges of citizenship must all be answered correctly.(38)
Further, the Minister may decide that certain mandatory
questions must be answered correctly, such as questions relating to
the responsibilities and privileges of Australian citizenship.
Proposed subsections 23A(3), (4) and (5) relate
to eligibility criteria for sitting a citizenship test which must include
permanent residency and satisfactory identification, but may include
other issues to be decided by the Minister.
Proposed subsection 23A(6) allows the determination
to cover any other matter related to the test that the Minister considers
appropriate. The Explanatory Memorandum states:
The determination could include provision for special
arrangements for people with special needs, such as those whose literacy
skills make it difficult for them to undertake a test without assistance.
The determination could also specify that a test would be conducted
using a computer program under the control of the Minister which randomly
selects a number of questions from a larger collection of approved questions.
This method is currently used in a number of countries. For example,
the United Kingdom uses a computer program which randomly selects 24
multiple choice questions from a collection of 200 questions.(39)
In other words, the written determination may contain
essential information for the operation of the test and is very widely
drafted. Finally proposed subsection 23A(7) provides that a written
determination made under new subsection 23A(1) is not a legislative
instrument within the meaning of section 5 of the Legislative Instrument
Act 2003. The Explanatory Memorandum states that ‘[t]his provision
is declaratory of the law, and is only included to assist readers’.(40)
This aspect of the Bill attracted the attention of
the Senate Scrutiny of Bills Committee who set out section 5 of the
Legislative Instruments Act 2003:
If the determination of a proposed citizenship test is
not of a legislative character, then it may be considered not to apply
generally to a group of people, but is more of an administrative decision,
tailored to a particular applicant for Australian citizenship. This
view may be supported by the provision in new subsection 23A(6), that
a determination may cover ‘any … matter related to the test that the
Minister thinks appropriate.’ If the determination is taken to be an
administrative decision to approve a test for a particular applicant,
then there does not appear to be any provision in the bill for the determination
to be subject to any form of merits review under the Administrative
Appeals Tribunal Act 1975. The Committee consistently draws attention
to provisions that exclude review by relevant appeal bodies or otherwise
fail to provide for administrative review.
The Committee seeks the Minister’s advice as to the reasons for deciding
that a determination under new subsection 23A(1) is not a legislative
instrument and, if the determination is administrative in nature, whether
the exercise of the power granted by proposed new subsection 23A(1)
should be subject to review.
Pending the Minister’s advice, the Committee draws Senators’ attention
to these provisions, as they may be considered to insufficiently subject
the exercise of legislative power to parliamentary scrutiny, in breach
of principle 1(a)(v) of the Committee’s terms of reference, and to make
rights, liberties or obligations unduly dependent upon non-reviewable
decisions, in breach of principle 1(a)(iii) of the Committee’s terms
of reference.(41)
The right in question is presumably the eligibility
for citizenship, which in turn contains a bundle of rights such as the
right to vote. This might also be an issue that should be properly
considered by the Senate Regulations and Ordinances Committee under
their guiding principles if a written determination is voluntarily tabled.
Item 9 inserts proposed subsection 46(1A)
to provide that the fee prescribed by the regulations for applications
made under section 21 of the Act, may include a component that relates
to the sitting of a test or tests under new section 23A.
Items 12 and 13 deal with application and transitional
arrangements raised by the Bill, which are made complex by the lack
of a commencement date, as discussed under subclause 2(1).
The Minister states in the second reading speech that
people under the age of 18 or over the age of 60, and those with a permanent
physical or mental incapacity which prevents them from understanding
the nature of the application, will not be required to sit the test.
However, these exemptions are not set out in the current Bill. Presumably
they would be included in the written determination.
The exemptions could mirror the old Act’s exemptions
in section 13(1) of the Australian Citizenship Act 1948 (Cth).
There is no provision discussed for exemptions for
refugees as a category. Refugees who arrive under the offshore humanitarian
program do receive language training. However, onshore asylum seekers
who have been given Temporary Protection Visas have not received the
same assistance and have also already had to wait at least 3 years,
(usually many more) to be granted permanent residency. They will now
have to wait 4 more years to apply for citizenship and will have to
pass this test. Permanence about their situation can be a significant
factor for the successful integration of refugees, especially those
with torture/trauma issues. Some of the general integration concerns
about migrants are often particularly directed at newly arrived refugee
communities, especially those from Africa or the Middle East.
Concluding comments
The Bill raises legal, operational and moral issues,
which will be considered in turn.
The legal issue deals with whether the use of a Ministerial
written determination is appropriate in terms of transparency and ability
to be subject to judicial review.(42) The exact nature of
the questions of the test has been a significant area of public and
political interest. In such a case, Parliament may wish to consider
whether at least draft questions should be tabled in order to aid debate.
The practice of introducing Bills where the substantive content of the
policy is yet to be decided, as was also the case with the Access Card,(43)
is less than ideal Parliamentary practice and increases the likelihood
of Bills requiring subsequent amendment.
The operational question is whether the test will have
the effect of diverting resources that should instead be used to fulfil
other important needs within the portfolio. However, the resource issue
has to be considered along with DIAC outlay on Palmer reforms, the Pacific
solution, Christmas Island, Indonesian cooperation, settlement services,
ethnic community grants and so forth.
The issue of citizenship is an increasingly contested
moral concept globally. In their 2000 report, Australian
Citizenship for a New Century the Australian Citizenship
Council, headed by Sir Ninian Stephen, asked: ‘How can concepts of citizenship
best serve Australia and Australians?’(44)
Examining the Bill in the light of that question, a
valid question raised in debates around this Bill is whether we are
expecting higher standards of migrants to Australian than those born
here.(45) Is successful integration into the Australian
community best achieved by a mandatory test with the risk of not achieving
citizenship status attached?
Moreover, does formal testing really assist in ensuring
a commitment to Australia’s way of life and values? As Professor Kim
Rubenstein has written:
Knowledge of Australia is a valuable aspect of Australian
citizenship, but it is not the only or paramount way of evidencing a
commitment to Australia. It is also important and valuable for Australian
born citizens. Knowledge of civics is not strong in many Australians
by birth, raising questions about the fairness involved in distinguishing
citizens by grant with citizens by birth, given citizens are obliged
to vote.(46)
Perhaps a useful analogy is that of a driving test.
Passing the multiple choice test for a learners permit driving licence
does not make a person a good driver. However, it does highlight awareness
of the road rules.
The test might also suffer from historical perceptions
of previous practice in immigration during the ‘White Australia’ era.
The general test requirements, especially the language requirement could
be said to resonate with earlier times in Australian history, with government
bureaucrats backed by official prejudice deciding which aspiring immigrants
had sufficient potential to become Australian/British to be allowed
to stay in the country and be naturalised.(47)
On the other hand, the current test will not be hard
to pass, with the given concessions for age and disability, the study
booklets, and AMEP and other assistance, sample questions on the internet,
plus unlimited attempts. Concerns could be alleviated by the application
of exemptions in practice.
If Governments wish to maintain a large and non-discriminatory
immigration program, it has to maintain the support of the general public.
The citizenship test in this sense can be seen as having a significant
symbolic role in reassuring the public. It is arguably then a pro-immigration
gesture, and Betts and Birrell posit.(48)
The final questions therefore are whether the test
will promote inclusive debate and a feeling of belonging or exclusive,
intimidating rhetoric about race/religion/ethnicity issues especially
pertaining to Australian Muslims (although one person’s ‘rhetoric’ is
perhaps another person’s ‘debate’); and whether it will encourage or
discourage people to become Australian citizens.
The test may have the benefit of increasing debate
around Australian values and identity, in the same manner as debates
around the republic issue or a Bill of Rights. The Minister’s second
reading speech is redolent in language about Australian values. National
identity issues and 'multiculturalism' are being rethought and revisited
in a serious manner, both here and overseas.(49)
These are important questions for the Australian Parliament
to consider and warrant extensive and measured examination.
-
The author wishes to acknowledge the assistance of Janet Phillips, Patrick O’Neill
and Adrienne Millbank in the preparation of this Digest.
-
Andrew Robb MP, ‘Australia to introduce citizenship test’, press release,
11 December 2006.
-
-
Peter Wilson, ‘ British
tactic to sideline radicals’, The Australian, 13 October
2006, p. 13.
-
Kevin Andrews MP, Minister for Immigration and Citizenship, ‘Second Reading
Speech’ Debates, House of Representatives, 30 May 2007, p.
3.
-
Cath Hart, ‘Booklet delays citizenship test’, Weekend Australian, 31
March 2007, p.10.
-
Kevin Andrews, op cit.
-
Some of these points are contested, see further the Submission
by Professor Kim Rubenstein, Director, Centre for International and
Public Law, ANU College of Law, ANU to Australian Citizenship: Discussion
Paper on the merits of introducing a formal citizenship test, 19 November
2006.
-
‘ Ministers
say sheik has to go’, Courier Mail, 10 April 2007
-
Philip Johnston, ‘Test foreigners face to become British Exam criticised for
leaving out history but including regional accents’, Daily Telegraph,
1 November 2005, p. 4
-
Hon. Tony McNulty, quoted in Alan Travis, ‘Testing passport to UK citizenship:
Migrants face 24 questions about life in Britain. Teachers who will
prepare them say quiz is too hard, The Guardian, 1 November
2005, p. 3.
-
Hon. David Blunkett, quoted in Alan Travis, ‘Migrants will face exams in quest
to become British. Success in tests will lead to passport’, The
Guardian, 4 September 2003, p. 9.
-
Editorial, ‘Citizenship, schools and the imposition of national values’, The
Independent, 26 January 2007, p. 36.
-
Sadi Mehmood, Letter to the editor: ‘Britishness test asks the wrong questions’,
The Independent, 4 November 2005, p. 50.
-
César G. Soriano, ‘New citizenship test ignites UK culture war’, USA Today,
2 November 2005.
-
Alan Travis, ‘Migrants will face exams in quest to become British. Success in
tests will lead to passport’, op. cit.
-
Melissa Kite, ‘Citizenship test stumps one in three migrants’, Sunday Telegraph.
15 October 2006, p. 10.
-
Ed Pilkington ‘What are 'inalienable rights'? If you don't know, you don't get
them: Tougher US citizenship questions unveiled: Test is an unfair
barrier for immigrants, say critics’ The Guardian, 1 December
2006, p. 27.
-
The Hill, ‘Opinion: Assimilation
policies carry risks’, 17 May 2006.
-
Cath Hart, ‘85pc support English test [and] Newspoll. The Australian,
1 January 2007, p. 1.
-
Katharine Betts and Bob Birrell, ‘ Making
Australian citizenship mean more’, People and Place, v.
15(1), 2007, pp. 45-61.
-
Kevin Andrews MP, Interview with Geoff Hutchison, 18 May 2007.
-
Senator Nick Minchin, ‘ Letter:
Head of state 'not official title', Sunday Mail (Adelaide),
3 June 2007, p. 84.
-
Julia Gillard, Transcript: Interview Today (Nine TV), 18 May 2007.
-
Peter Mares, ‘ National
Interest’, ABC Radio National, 20 May 2007
-
On file with author. No attribution on document.
-
Cath Hart, ‘Citizens test wrong priority’, The Australian, 11 May 2007,
p.6.
-
Petro Georgiou, MP, ‘Australian citizenship in the 21st century’: speech to
the CO.AS.IT. Italian Assistance Association, Carlton, 14 March 2007.
-
op cit.
-
Sophie Morris, ‘ Citizenship
bill to put party room to the test’, Australian Financial Review,
30 May 2007, p. 13.
-
Tony Burke MP, ‘Transcript of doorstop: Sydney Airport: 15 March 2007: Sri Lankan
asylum seekers; citizenship test’. Press Release (Shadow Minister
for Immigration, Integration and Citizenship), 15 March 2007.
-
Senator Andrew Bartlett, ‘Citizenship test: a waste of money on double standards’,
Press release, 18 May 2007.
-
Senator Kerry Nettle, “Citizenship test nothing more than cynical wedge politics’,
Press release, 11 December 2006.
-
Explanatory Memorandum, p. 1. See Additional Estimates Hearing: 12 February
2007.
-
Senate Committee for Scrutiny of Bills, Alert
Digest No. 6 of 2007, p. 18.
-
Explanatory Memorandum, p. 3.
-
Explanatory Memorandum, p. 4.
-
Explanatory Memorandum, p. 4.
-
Explanatory Memorandum, p. 5.
-
Explanatory Memorandum, p. 5.
-
Senate Committee for Scrutiny of Bills, Alert
Digest No. 6 of 2007, pp. 18 to 19.
-
-
See further Bills Digest 114, 2006-07 by Mary Anne Neilsen ‘Human Services (Enhanced
Service Delivery) Bill 2007’ [ HTML] [ PDF 284KB]
14 March 2007.
-
At p. 4.
-
George Williams, ‘Opinion: If you sat a citizenship test, would you pass?’ Adelaide
Advertiser, 15 December 2006, p. 22.
-
Submission
by Professor Kim Rubenstein, Director, Centre for International and
Public Law, ANU College of Law, ANU to Australian Citizenship: Discussion
Paper on the merits of introducing a formal citizenship test, 19 November
2006.
-
Peter Prince, ‘Mate! Citizens,
aliens and ‘real Australians’—the High Court and the case of Amos
Ame’, Research Brief, no. 4, Parliamentary Library, Canberra,
2005–06, pp 4-5.
-
Betts and Birrell, op cit.
-
See for example, Janet Albrechtson, ‘ Opinion:
Value in values talk is getting grievances into the open’, The
Australian, 23 May 2007, p. 14.
Sue Harris Rimmer
19 June 2007
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted by the
Copyright Act 1968, no person may reproduce or transmit any part of this
work by any process without the prior written consent of the Parliamentary
Librarian. This requirement does not apply to members of the Parliament
of Australia acting in the course of their official duties.
This work has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Parliamentary Library, nor
do they constitute professional legal opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au.
Any concerns or complaints should be directed to the Parliamentary Librarian.
Parliamentary Library staff are available to discuss the contents of publications
with Senators and Members and their staff. To access this service, clients
may contact the author or the Library’s Central Entry Point for
referral.
|
 |
