ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS
Introduction
1.2
The Australian Citizenship Amendment (Citizenship Test Review and Other
Measures) Bill 2009 essentially seeks to amend the Citizenship Act to exempt
applicants who cannot complete the test because of mental or physical
incapacity occasioned by torture or trauma; and tighten the eligibility
criteria for persons under 18 by requiring they be permanent residents before
granting citizenship.
1.3
While the Greens do not support the premise of the Citizenship Test, and
continue to hold concerns over aspects of this legislation, we recognise that
the Minister has sought to improve the way in which the test is applied in
response to some of the recommendations made in the report of the Australian
Citizenship Test Review Committee.
Subsection 21(3) exceptions from
the citizenship test
1.4
The majority of submissions and evidence received by the Committee argue
that while an exemption from the requirements to sit the citizenship test is
provided for sufferers of past torture and trauma experienced, the exemption
identified in Subsection 21(3) of the Bill is too narrow.
1.5
Many refugee and humanitarian entrants, for example, that may have
suffered persecution within their countries of origin, would fall short of the
legal definition of torture. Similarly, the requirement that mental or
physical incapacity is as a result of suffering torture or trauma outside of
Australia, is too prescriptive, particularly when discussing trafficked
persons, or those held in detention whilst their visa application is being
determined.
1.6
It is not appropriate to limit the definition of torture or trauma to
those that have suffered psychological damage outside of Australia. In their
submission, Castan Centre for Human Rights Law argues that:
Many refugees have been re-traumatised by their treatment in
Australia, and have suffered trauma from prolonged detention...whilst under Australia’s
care and jurisdiction.[1]
1.7
At a minimum, consideration must be given to expanding the definition to
include persons traumatised by their experience in an Australian detention
facility, and trafficked persons who have suffered trauma and persecution in
Australia at the hands of persons here.
1.8
There was also confusion around how a person’s level of
incapacity will be measured, and by whom. The Refugee Advice and Casework
Service argued in their evidence to the committee that:
individuals falling within the exception would still be
forced to submit to the potentially humiliating process of having themselves
declared mentally incapable. In addition, a significant strain may well be
placed upon the already overburdened mental health services.[2]
Recommendation 1
1.9
The Greens submit that the exemption within 21(3) is too narrow, and
must be expanded to include all refugee and humanitarian visa holders from the
requirement to sit the test.
Recommendation 2
1.10
If the exemption proposal is not broadened, we recommend that the
amendment be broadened to include people who have suffered significant trauma
while in Australia.
1.11
Proposed subsection 21(3B) and paragraph 26(1)(ba) be amended by
omitting the words “outside Australia”
Subsection 21(5) removal of
exemption for minors
1.12
The Committee heard evidence throughout the Inquiry regarding concerns
over the removal of the Ministerial discretion clause, effectively allowing the
Minister to grant citizenship to a child or young person who is not a
resident. Of particular concern was that by requiring a person under 18 years
of age to be a permanent resident at time of the application and decision for
citizenship, the best interests of the child are not being taken into account.
1.13
Children are a particularly vulnerable group of, and their visa status
if often as a result of factors beyond their control. According to the Refugee
and Immigration Legal Centre’s submission into the Inquiry
Australia’s obligations under the Convention on the Rights of
the Child to act in the best interests of the child must be the guiding and
determining factor in deciding whether a child can be conferred Australia citizenship.
Of particular relevance is the degree of the child’s connection to Australia,
to the extent that it may amount to a form of citizenship, rather than their
formal visa status.[3]
Recommendation 3
1.14
Given Australia’s commitment to the Convention on the Rights of the
Child, the Greens recommend that Subsection 21(5) be omitted, and replaced with
a clause that requires the Minister to take into account, when deciding whether
an applicant under the age of 18 years of age is eligible for conferral of citizenship,
the best interest principle from Article 3 of the Convention of the Rights of
the Child.
Alternative pathways to citizenship
1.15
While a number of the proposed amendments contained in this legislation
will make it easier to obtain citizenship, the Greens remain concerned at the
lack of legislative implementation for alternative pathways to citizenship.
1.16
It is largely the most vulnerable applicants, such as refugee or
humanitarian entrants, who have experienced most difficulties with the passing
the test. Given the Australian Citizenship Test Review Committee recommended
a range of other alternative pathways, including Citizenship Education Programs
in English and in languages other than English, the Government must develop its
alternative pathway to citizenship plan as a priority.
Recommendation 4
1.17
The Greens support the recommendation put forward by the Refugee and
Immigration Legal Centre that “any alternative pathway proposed by the
Government for refugee and humanitarian entrants, must not involve the
completion of any form of computer‐based,
multiple choice test and the training element of this pathway must be available
in languages other than English.”[4]
Recommendation 5
1.18
The Greens further recommend that if refugee and humanitarian applicants
are not exempt from the test, a review mechanism be implemented, under the
current powers of the Commonwealth Ombudsman, for refugee and humanitarian
applicants to challenge their ability to access support, in order to undertake
the test.
Public scrutiny
1.19
Given Recommendation No.18 of the Australian Citizenship Test Review
Committee recommended that:
all citizenship test questions, regardless of the pathway, be
made publicly available and education experts be consulted on the number of
questions to be in the bank.[5]
1.20
It is disappointing that the Government does not see the merit in
ensuring there is appropriate public scrutiny of the citizenship test.
1.21
Appropriate levels of public scrutiny would ensure and promote public
discussion around what are appropriate questions to include in the test.
Recommendation 6
1.22
Considering the Department for Immigration and Citizenship recently
published the “Australian Citizenship Test Snapshot Report”, the Greens
recommend that this information, and the questions included within the test, be
released, on an annual basis, to encourage public engagement and scrutiny in
the process.
Conclusion
1.23
The Greens continue to hold concerns around the narrow exemption clauses
for minors and past sufferers of trauma and torture, as well as the failure to
include alternative pathways for citizenship, or appropriate levels of public
scrutiny of the citizenship test.
1.24
Although we have been strong advocates for the abolition of the
citizenship test, we recognise that the amendments posed within this Bill seek
to improve the current testing regime, and we will seek to address the
recommendations outlined above, when the Bill is debated in the Senate.
1.25
As such, the Greens reserve our final position on the Bill.
Sarah
Hanson-Young
Australian Greens’ Spokesperson
for Immigration
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