Additional comments from the Australian Democrats
1.1
I am largely
supportive of the Committee's report and recommendations. In most respects, the Bill is a positive step
and the committee's recommendations should improve it further. However, I believe there are a few extra
areas where further change to the legislation is desirable.
Refugees on Temporary Protection Visas
1.2
I strongly agree
with Recommendation 6 which provides that the new residential qualifying period
of 3 years only apply after the commencement of subdivision (B) to ensure that
current permanent residents are not affected by retrospective law.
1.3
However, while
the committee has recognised that certain groups like refugees who are here on
Temporary Protection Visas may be vulnerable, it falls short of making specific
recommendations to protect this group. As has been noted, most of these
people who have or will end up on permanent visas have already spent well over
three years in Australia.
1.4
I believe it
would be appropriate to specifically ensure that this period is taken into
account in determining eligibility for citizenship. This ensures that those refugees who have
already resided here for many years and wish to take up citizenship of
Australia to be able to do so more quickly. The evidence of history shows
this would be beneficial to Australia as well as to the individuals involved.
1.5
I note that
Committee recommendation 7 recommends broadening the concept of 'significant
hardship or disadvantage' to encompass this group, but I am of the opinion that
a stronger proposal should be put forward.
Recommendation 1
1.6
For the purposes
of determining eligibility for citizenship, refugees who have been on Temporary
Protection Visas should have the time they have resided in Australia treated as
if they had been permanent residents during that period.
Same sex partners
1.7
It is pleasing to
note the committee's recognition that the definition of spouse (which has now
been updated to encompass de facto spouses) does not extend to same sex
partners, and also their comment that consideration should be given to
including same sex partners within the definition of spouse. However, the Committee fell short of
specifically recommendation that this should be so.
Recommendation 2
1.8
A specific
amendment should be made to the legislation extending the definition of spouse
to include same sex couples.
Ministerial Discretion
1.9
I remain
concerned about whether the merits review that will be available in the AAT is
an adequate protection against the unreasonable or unfair use of ministerial
discretion to deny citizenship to someone who otherwise meets all the
elegibility criteria under the law.
1.10
Whilst I accept
that this discretion exists under the current Citizenship Act 1948, I believe
there is now enough evidence of how the use of such discretion can be overly
politicised to warrant restricting such power.
1.11
The proper area
for dealing with people who present an unacceptable risk to the community is
the Migration Act, not the Citizenship Act.
If someone is so unacceptable that they should be denied citizenship,
despite meeting all criteria under law, it is hard to see how the question
would not also arise as to whether or not that person's residency visa should
be cancelled. If a person is of good
enough character and acceptable to remain as a long-term permanent resident of
Australia, they should be of good enough character to take up citizenship,
should they meet all the criteria.
Security assessments
1.12
The same point
that I made above applies with people whose applications may be rejected on the
grounds of national security. If someone
poses a threat to national security, it is hard to see a situation where they
should still be able to remain eligible for permanent residency, while being
refused eligibility for citizenship.
1.13
The explanatory
memorandum to the legislation mentions that there are some review rights
available under Part IV of the ASIO Act which would be undertaken by the
Security Appeals Division of the AAT. However, review of this kind can be
very difficult to challenge due to the lack of information which is made
available to the complainant in some circumstances.
1.14
There are already
enough impairments to fair and due process for people subjected to security
assessment.
1.15
I support the
recommendation of HREOC that the National Security Information (Criminal
and Civil Proceedings) Act 2004 be amended so that it applies to the
Security Appeals Division of the AAT.
This at least ensures a right to review and is in line with the right to
a fair hearing.
Stateless Persons
1.16
I support the
Committee's recommendation 10 and 11, but I believe it should go further. I believe Paragraph 21(8)(c) as it stands can
clearly be interpreted in a way which is outside our obligations under the Convention on Statelessness.
Recommendation 3
1.17
That the words
"that the person has never had such reasonable prospects" be deleted
from Paragraph 21 (8) (c).
Personal identifiers and Privacy issues
1.18
I am concerned
that recommendation 12 does not go far enough in ensuring adequate protection
of individual privacy. I believe this area needs further examination before
the legislation is passed, and I reserve my position on possibly moving
amendments to the legislation addressing these issues.
Dual citizenship
1.19
Finally, I
believe it is becoming more and more urgent that an effort is made to make the
necessary change to our Constitution that prohibits dual citizens from running
for Parliament. Dual citizenship is
part and parcel of modern society and certainly of Australian society. A
significant proportion of Australians hold dual citizenship
and that this number is growing, not least because of the recent changes made
to the Citizenship Act.
1.20
These people are
disenfranchised in the sense that they are not able to run for election to the
federal parliament without relinquishing their dual citizenship. There may be valid arguments to require sole
citizenship as part of eligibility to be a Minister or Prime Minister, where
perhaps dual citizenship may not be appropriate. However, I believe we
are short changing ourselves as a nation if we prevent dual citizens from
becoming a Member of Parliament.
Recommendation 4
1.21
That all parties
in the Parliament support as a matter of urgency, legislation to initiate a
referendum to remove the prohibition on dual citizens being able to run for
federal Parliament.
Senator Andrew Bartlett
Australian Democrats
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