Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 [2017] AUSStaCSBSD 213 (21 June 2017)

1.1 The committee seeks a response or further information from the relevant minister or sponsor of the bill with respect to the following bills.

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Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017

Purpose	This bill seeks to amend the Australian Citizenship Act 2007 (the Citizenship Act) and the Migration Act 1958 (the Migration Act) to: • increase the general residence requirement for conferral applicants to four years of residence in Australia as permanent residents before being eligible for citizenship; • require conferral applicants to provide evidence of competent level of English language skills prior to applying for citizenship; • modify provisions relating to the automatic acquisition of Australian citizenship under certain circumstances; • require applicants to sign an Australian Values Statement in order to make a valid application for citizenship; • allow for the Australian Citizenship Regulations 2016 or an instrument made under the Citizenship Act to determine the information or documents that must be provided with an application in order for it to be a valid application; • extend the bar on approval to all applicants for citizenship where there are related criminal offences; • extend the good character requirement to include applicants under 18 years of age; • allow for the regulations or an instrument made under the Citizenship Act to introduce a two year bar on a person making an application for citizenship where the Minister has refused to approve the person becoming an Australian citizen on grounds other than failure to meet the residence requirement; • amend key provisions concerning the residence requirements for Australian citizenship, to clarify when it commences; • provide the Minister with the discretion to revoke a person's Australian citizenship under certain circumstances; • enable the Minister to make a legislative instrument under certain circumstances in relation to acquiring Australian citizenship; • modify provisions relating to the scope of the Minister's discretion for residence requirements for spouses and de facto partners of Australian citizens, and spouses or de facto partners of deceased Australian citizens; • provide for the discretionary cancellation of approval of Australian citizenship under certain circumstances • provide the Minister with the power to set aside decisions of the Administrative Appeals Tribunal concerning character and identity; • modify provisions relating to access to merits review for conferral applicants under 18 years of age; • provide that certain personal decisions made by the Minister are not subject to merits review; • allow the Minister, the Secretary or an officer to use and disclose personal information obtained under the Citizenship Act; and • make certain consequential amendments
Portfolio	Immigration and Border Protection
Introduced	House of Representatives on 15 June 2017
Scrutiny principles	Standing Order 24(1)(a)(i), (ii), (iii) and (iv)

1.2 The committee commented on a number of the measures in this bill when it considered the Australian Citizenship and Other Legislation Amendment Bill 2014 (the 2014 bill) in the previous Parliament.^[1] The committee takes the opportunity to reiterate the relevant comments below and make some additional comments.

Broad discretionary power and broad delegation of legislative power^[2]

1.3 Proposed paragraph 21(2)(fa) adds a criterion to the general eligibility criteria for Australian citizenship by conferral. The new criterion is that the Minister must be satisfied that the person 'has integrated into the Australian community'. Item 53 would introduce a power for the Minister to determine, by legislative instrument, the matters to which the Minister may or must have regard to when determining whether a person has integrated into the Australian community.^[3]

1.4 The explanatory memorandum provides examples of the type of matters the Minister may determine that regard may be had to, including:

1.5 The question of whether a person has integrated into the Australian community is a matter about which there may reasonable disagreement. The concept of integration in this context is imprecise and matters relevant to understanding integration (even if these are agreed) will inevitably raise questions of degree. The combined effect of these provisions is to delegate to the Minister a large discretionary power to determine whether or not the proposed new criterion has been met by an applicant.

1.6 The committee also notes that there is no requirement that a legislative instrument must be made to guide the exercise of the Minister's judgment in reaching a conclusion about whether an applicant has sufficiently integrated into the Australian community.

1.7 From a scrutiny perspective, the committee considers that the matters relevant to determining whether a person has integrated into the Australian community is a substantive policy question and not technical detail, and as such, are not appropriate for broad delegation to the executive branch of government. The committee therefore suggests that, if the addition of this new eligibility criterion is deemed necessary, it may be appropriate for the bill to be amended to provide guidance in the primary legislation as to what is meant by the phrase 'has integrated into the Australian community' and how this criterion should be applied. At a minimum, it is suggested that it may be appropriate that there be a requirement in the bill that the Minister must make a disallowable legislative instrument to guide the exercise of this power prior to it being exercised. The committee requests the Minister's response in relation to these matters.

Broad delegation of legislative power^[5]

1.8 Item 41 seeks to amend the Australian Citizenship Act 2007 (Citizenship Act) so that instead of the Minister being satisfied that an applicant for citizenship 'possesses a basic knowledge of the English language' it would require that the Minister be satisfied that the person 'has competent English'. Item 53, proposed paragraph 21(9)(a), provides that the Minister may make a legislative instrument that determines the circumstances in which a person has 'competent English'.

1.9 While the question of whether a person possesses 'competent English' may appear to be a matter of technical detail, from a scrutiny perspective, the committee considers it is difficult to separate the technical issues from broader policy questions that should more appropriately be determined by Parliament than by ministerial determination. Competence in a particular skill is a question that can only be judged by reference to the purpose for which the skill is required. Whereas determination of English language competency, for example, for university studies may be based on evidence and clear requirements intrinsic to particular studies, the same cannot be said in relation to citizenship. Put differently, the level of English language ability a new member of the Australian community who wishes to become an Australian citizen should possess, is affected by subjective values rather than an assessment of technical requirements.

1.10 The explanatory memorandum does not provide any detail as to the level of English that will be considered to constitute 'competent' English. It states that the determination will enable the Minister to determine, for example, 'that a person has competent English where the person has sat an examination administered by a particular entity and the person achieved at least a particular score'.^[6] It also states that this amendment:

1.11 Noting that regulation making powers can be used to fine tune and supplement legislatively set schemes, the committee requests the Minister's detailed justification as to why the primary legislation should not contain more detail about what constitutes 'competent English', and requests the Minister's advice as to the level of English it is anticipated an applicant will be required to demonstrate that their English is 'competent'.

Restriction on judicial review^[8]

1.12 Proposed section 22AA seeks to confer a new personal, non-compellable power on the Minister to waive the general residence requirement where the Minister is satisfied either that:

1.13 However, proposed subsection 22AA(4) makes it clear that the Minister has no duty to even consider whether or not to exercise this power, in any circumstance.

1.14 'No-duty-to-consider clauses' do not by their terms oust the High Court or Federal Court's judicial review jurisdiction. However, they do significantly diminish the efficacy of judicial review in circumstances where no decision to consider the exercise of a power has been made. Even where a decision has been made to consider the exercise of the power, some judicial review remedies will not be available.^[9]

1.15 The explanatory memorandum does not explain why subsection 22AA(4) has been included, other than to say that it makes it clear that subsection 22AA(1) does not impose a duty on the Minister and the power is purely discretionary.

1.16 The committee considers that provisions that provide that a Minister has no duty to exercise a statutory power should be thoroughly justified. Noting that the appropriateness of this clause may differ depending on the purpose for which the power may be exercised (that is, administrative error or the public interest), the committee requests the Minister's explanation as to why proposed subsection 22AA(4) is considered necessary and appropriate.

Broad discretionary power—citizenship revoked if requirements of Act not met^[10]

1.17 Proposed section 33A gives the Minister the discretion to revoke the citizenship of a person who had been registered as an Australian citizen by descent. The Minister is required to be satisfied that the approval should not have been given to register that person's citizenship on the basis that the requirements of the Citizenship Act had not been met. The requirements for citizenship by descent include the requirement in paragraph 16(2)(c) of the Citizenship Act that a person is of good character at the time they are approved for registration. This proposed amendment enables the Minister to revoke citizenship if the Minister later becomes satisfied that the person was in fact not of good character at the time they were registered as a citizen by descent. Proposed subsection 33A(3) provides that a person who has their citizenship revoked under section 33A ceases to be an Australian citizen at the time of revocation.

1.18 The explanatory memorandum justifies the discretionary nature of the Minister's power under the proposed section on the basis that it enables the Minister to take into account the particular circumstances of a person's case, such as the length of time that the person has been a citizen and the seriousness of any character concerns.^[11]

1.19 However, the committee notes that there is no time limit placed on the use of the Minister's discretionary power to revoke the citizenship of a citizen by descent. Further, if the decision was made personally by the Minister, merits review of the decision would not be available.^[12]

1.20 When the committee considered an identical provision to this in the 2014 bill, the committee sought the then Minister's advice as to whether consideration had been given to placing a time limit on the exercise of the power. The response previously provided to the committee stated, among other things:

1.21 However, the committee notes that while it is possible that the length of time that a person has been a citizen may be taken into account by the Minister when considering revoking citizenship, there is no requirement that the Minister take this into account.

1.22 The committee has scrutiny concerns about conferring a non-time limited broad discretionary power on the Minister to cancel a person's citizenship on the basis that when citizenship was granted the person was not of good character (proposed section 33A). The committee's scrutiny concerns are heightened by the fact that merits review is not available in relation to decisions made personally by the Minister.

1.23 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of this broad discretionary power.

Broad discretionary power—citizenship revoked for fraud or misrepresentation^[14]

1.24 Proposed section 34AA gives the Minister the discretion to revoke a person's citizenship in circumstances where the Minister is satisfied that the person became an Australian citizen as a result of fraud or misrepresentation. The fraud or misrepresentation may be associated with a person's entry to Australia, the grant of a visa or the approval of citizenship. Paragraph 34AA(1)(c) provides that the Minister must also be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

1.25 The committee notes that proposed subsection 34AA(2) provides that the fraud or misrepresentation need not have constituted an offence by any person and may have been committed by any person (i.e. it need not have been committed by the person whose citizenship may be revoked). The revocation power can be exercised if the fraud or misrepresentation occurred during the period of 10 years before the day of revocation.

1.26 Under the proposed amendments, the fraud or misrepresentation need not be established by a court and, in some instances, is not subject to merits review. The question of whether fraud or misrepresentation has been established is left entirely to the Minister or his or her delegate's 'satisfaction'. In relation to decisions made personally by the Minister (which are not subject to merits review)^[15] this means factual errors about the existence of fraud or misrepresentation could only be challenged by way of judicial review. However, as an error of fact (even a serious error) is not, in and of itself, an error of law, the availability of judicial review would not address this concern.

1.27 In addition, the power may be exercised even if the person whose citizenship is revoked is not responsible for the fraud or misrepresentation. The explanatory memorandum suggests that as 'the power to revoke...is discretionary, it will be open to the Minister to consider arguments that the person was unaware of the fraud or misrepresentation in deciding whether to revoke their Australian citizenship'.^[16] However, the committee notes that the power is framed as a broad discretion and there are no express constraints in the legislation which would prevent the revocation of citizenship in these circumstances. These scrutiny concerns are heightened by the fact that the power may be exercised for up to 10 years after the wrongdoing occurred (even if the citizen was not responsible for that wrongdoing).

1.28 When the committee considered an identical provision to this in the 2014 bill the committee previously requested the then Minister's advice as to the appropriateness of the 10 year period, and why it was not possible for merits review to, at a minimum, be available in relation to findings that a person became an Australian citizen as a result of fraud or misrepresentation.

1.29 The response previously provided to the committee advised that the discretionary power to revoke a person's citizenship due to fraud or misrepresentation aligns with community expectations about the government's role in upholding the integrity of the Australian citizenship programme. The response further stated:

1.30 The committee notes that the above justification has been incorporated in the explanatory memorandum.^[18]

1.31 Regarding the appropriateness of the 10 year period, the response previously provided to the committee noted that this period was 'considered to be an appropriate safeguard when moving from revocation based on criminal conviction to revocation based on Ministerial satisfaction'. In relation to concerns raised by the committee regarding the absence of merits review for persons affected by the proposed section, the response noted that any decision made personally by the Minister to revoke a person's citizenship would be subject to judicial review.

1.32 The committee notes that access to judicial review does not alleviate the committee's scrutiny concerns as the extent of review available under judicial review is not the same as that available under merits review; including that judicial review does not allow the courts to review for all errors of fact or allow the courts to consider whether a persuasive case has been made for the making of the decision under review.

1.33 The committee retains scrutiny concerns over the broad discretionary power granted to the Minister in proposed section 34AA to cancel a person's citizenship on the basis of fraud or misrepresentation, particularly in light of:

1.34 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of this broad discretionary power.

Exemption from disallowance—Australian Values Statement^[19]

1.35 Proposed subsections 46(5) and 46(6) provides that the Minister may determine an Australian Values Statement and any requirements relating to that statement, but that such a determination is not subject to disallowance under the Legislation Act 2003. The committee has consistently taken the view that removing parliamentary oversight is a serious matter and any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum.

1.37 The committee also notes that item 42 seeks to amend section 21 of the Citizenship Act to make it an eligibility requirement that the applicant has 'adequate knowledge of Australia's values'. It is unclear whether the Australian Values Statement, to be determined by a non-disallowable legislative instrument, will be considered as part of the determination as to what constitutes 'Australia's values'.

1.38 The committee notes that the explanatory memorandum states that Australian values are matters that go 'directly to the substance of citizenship policy'. The committee considers that matters that go directly to the substance of a policy would appear to be matters that are appropriate for parliamentary oversight.

1.39 The committee also notes that the explanatory memorandum states that putting the determination of the Australian Values Statement under Executive control provides certainty to applicants. The committee notes that certainty could be provided as to what constitutes Australian values by increasing parliamentary oversight of this matter, rather than including this in a legislative instrument and exempting it from disallowance altogether. The committee observes that it would be possible to provide for such increased scrutiny in ways that would ensure the definition was not subject to unexpected change, for example by:

1.40 Noting the importance of appropriate parliamentary scrutiny, the committee requests the Minister's further justification for exempting from disallowance a determination setting out an Australian Values Statement, and the Minister's response to the committee's suggestions set out above at paragraph [1.39].

Exclusion of merits review—personal decision of Minister^[24]

1.41 Item 126 proposes to introduce a new subsection 52(4) to provide that citizenship decisions which are generally reviewable by the Administrative Appeals Tribunal (AAT) will not be reviewable where the decision is made by the Minister personally and the Minister has issued a notice under section 47 that includes a statement that the Minister is satisfied that the decision was made in the public interest.

1.42 In justifying the exclusion of decisions made by the Minister personally in these circumstances, the explanatory memorandum states:

1.43 Further, the explanatory memorandum states that the person is still able to seek judicial review of these decisions and the proposal would bring the exclusion of personal decisions of the Minister from merits review more in line with similar provisions under the Migration Act 1958.

1.44 The committee reiterates its view set out above at paragraph [1.32] that it does not consider the availability of judicial review to be a factor that justifies the exclusion of merits review.

1.45 The committee notes that although there are general policy questions that may arise in relation to making a decision on citizenship, for example in applying 'good character' requirements, any explicit government policy developed to guide decision-making in these areas would be considered by the AAT in making its decision.^[26] As such, the Minister's role in 'representing the Australian community' could be pursued through the development of applicable policy to guide the exercise of these powers.

1.46 The committee notes that errors may occur in some decisions as to a question of fact or law, and review of these sorts of questions (e.g. whether there was a misrepresentation) would not require the AAT to second-guess judgments about what the public interest requires. The committee notes that this raises a more general question as to why all aspects of decisions made personally by the Minister should be excluded from review. For example, it would be possible to give the AAT the power to review whether there are grounds to be satisfied that fraud or misrepresentation resulted in a person becoming an Australian citizen, but not to determine whether it would be 'contrary to the public interest for the person to remain an Australian citizen'.^[27]

1.47 As such, when the committee previously considered an identical provision to this in the 2014 bill, it sought the then Minister's justification as to why exclusion of merits review was appropriate. The response previously provided to the committee explained that the exclusion of decisions personally made by the Minister aligns with 'similar provisions involving personal decisions of the Minister under the Migration Act', and that 'the Citizenship Act itself has a precedent for non-reviewable personal decisions of the Minister, being paragraph 52(3)(b)'.^[28]

1.48 The committee remains of the view that the existence of similar legislative provisions is not, of itself, a sufficient precedent that justifies the proposed amendment.

1.49 The committee considers that discretionary powers which have a direct and immediate effect on personal rights and interests should, in principle, be subject to merits review. The committee does not consider that a conclusion that a decision has been made in the public interest is, in itself, sufficient to exclude merits review, where decisions have the capacity to directly impact on significant individual interests.

1.50 In this respect the committee reiterates that the Administrative Appeals Tribunal would routinely apply government policy on public interest considerations. For these reasons the committee retains its scrutiny concerns that personal powers exercised to determine individual cases on the basis of unspecified references to the 'public interest' may have the effect of undermining administrative justice unless accompanied by merits review.

1.51 Finally, as previously noted, if merits review is to be excluded, the committee is of the view that a justification for excluding merits review should be made in relation to each separate decision-making power and the particular elements of those powers.

1.52 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of excluding merits review in these circumstances.

Merits review—power to set aside Tribunal decisions^[29]

1.53 Proposed section 52A provides the Minister with a power to set aside certain decisions of the AAT if the Minister is satisfied that it would be in the public interest to do so. The power applies in relation to decisions to refuse to approve, or to cancel an approval for citizenship, where the original decision-maker was not satisfied that the person was of good character or was not satisfied of the identity of the person, and the AAT set the decision aside on review. It does not apply to decisions made to revoke citizenship. Subsection 52A(2) provides that the power may only be exercised by the Minister personally.

1.54 In justifying this provision the explanatory memorandum points to three significant decisions by the AAT which it is suggested are 'outside community standards' and three others in which people have been found to be of 'good character despite having committed domestic violence offences'.^[30] The explanatory memorandum also notes that there 'is the potential for some decisions made by the AAT on identity grounds to pose a risk to the integrity of the citizenship programme'.^[31]

1.55 The explanatory memorandum also states that while guidance will continue to be provided and updated as appropriate to reflect government policy in relation to community standards and other matters, the potential remains for AAT decisions to be made which are inconsistent with such policies.^[32] Although it may be accepted that the government has a legitimate interest in aligning citizenship decisions with community standards, the committee considers this must be balanced with community expectations relating to the integrity of the system of independent merits review. The availability of merits review in relation to decisions which may adversely affect important individual interests can be thought of as an essential part of the Australian administrative justice system. As such, aligning decisions with the Minister’s view of community standards in individual cases is not the only consideration relevant to assessing the justification of the proposed power to override AAT determinations.

1.56 Any system of independent merits review runs the risk that a tribunal may reverse a decision preferred by the original decision-maker or the Minister. However, overriding a decision by an independent decision-maker poses a risk to community perceptions about the availability of independent merits review and the risk that individual cases may be unduly influenced by political considerations. The AAT has long accepted that it will not depart from government policy unless there are ‘cogent reasons’ against its application in the individual circumstances of a case, especially in cases where the policy has been exposed to parliamentary scrutiny.^[33] While this does not guarantee in rare instances clear government policy will not be applied, it does suggest that such cases will, in relative terms, be few.

1.57 The committee previously considered a substantially similar provision to this in the 2014 bill and sought and considered a short advice provided to it.^[34]

1.58 The committee retains scrutiny concerns about the appropriateness of enabling the Minister to set aside a decision of the Administrative Appeals Tribunal in individual cases. The committee considers such a power may undermine the integrity of the system of independent merits review. The committee therefore considers it may be more appropriate to clarify government policy on the matters referred to in proposed section 52A, to which the Tribunal would need to have regard to, rather than overriding outcomes in individual cases.

1.59 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of enabling the Minister to set aside decisions made by an independent Tribunal.

Broad instrument-making power^[35]

1.60 Proposed subsection 54(2), provides that the regulations (not the primary Act) may confer on the Minister the power to make a legislative instrument. In effect, this gives the Minister the power to specify instruments in writing under the Australian Citizenship Regulations 2016 (the Regulations). The explanatory memorandum states that the purpose of the amendment is to enable the Minister to make legislative instruments that include, but will not be limited to, the payment of citizenship application fees in foreign currencies and foreign countries.^[36]

1.61 In effect this confers a broad power for further delegated legislation to be made under the Regulations. The explanatory memorandum justifies this as follows:

1.62 The committee notes that while the use of delegated legislation in technical and established circumstances (such as the payment of fees) is not controversial, it is unusual for primary legislation to provide for the making of a regulation which, in turn, provides a Minister with a wide power to make further delegated legislation for unspecified purposes.

1.63 The committee previously considered an identical provision to this in the 2014 bill and sought the Minister's advice as to why an appropriately described power to make delegated legislation could not be included in the primary Act. The response previously provided to the committee stated that while it would be possible to limit the Minister's power to make further delegated legislation to specified matters in the Citizenship Act, it was not necessary to do so as the (now) Legislation Act 2003 provides that any instrument made under the Regulations would be read so as not to exceed the authorising powers in the Act and the Regulations.^[38]

1.64 The committee does not consider that the broad power in proposed subsection 54(2) to make further delegated legislation is necessary. The committee considers it would be more appropriate to constrain the power to make further delegated legislation to the purposes for which it is directly intended, rather than leaving it to be assessed against the broader scope of the bill.

1.65 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of giving the Minister the power to make further delegated legislation for unspecified purposes.

Retrospective application—citizenship by birth^[39]

1.66 Paragraph 12(1)(b) of the Citizenship Act currently provides that a person born in Australia is an Australian citizen if the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born. In effect this means that a child born in Australia will automatically become an Australian citizen once they turn 10 (if they lived in Australia their whole life), even if their parents are not Australian citizens.

1.67 Proposed subsections 12(4) and 12(5) provide that a person born in Australia can no longer acquire citizenship by birth automatically on the basis of being ordinarily resident throughout the 10 year period, if at any time during that period (a) they were an unlawful non-citizen or (b) the person was outside Australia and, at that time, the person did not hold a visa permitting the person to travel to, enter and remain in Australia.

1.68 Subitem 135(2) provides that these amendments apply in relation to a 10 year period that ends on or after the commencement, whether the birth occurred before that commencement. Subitem 135(3) provides that to avoid doubt, in relation to a birth that occurs before commencement the amendments apply in relation to any part of the 10 year period, whether that part occurs before, on or after commencement.

1.69 The practical effect of these subitems is that a child who may be expecting to acquire citizenship on the basis of the existing provisions will not be able to do so, even in circumstances where they are due to acquire citizenship very soon after the commencement of the provisions.

1.70 The committee previously raised concerns about the fairness of the intended purpose of the amendments when it considered an identical provision in the 2014 bill. The committee previously noted that the question of fairness arises because a person who, in some cases, may have spent a lengthy period in Australia (up to 10 years) and who reasonably expects, on the basis of the current provisions, to soon acquire citizenship, will no longer acquire citizenship if these amendments are made into law. In these circumstances the committee noted there is a risk that a person may have reasonably relied on the existing provisions on the assumption that any changes would not apply to persons born before commencement. As such, the committee sought the then Minister's advice as to why it is considered fair to apply the provisions retrospectively in relation to subsections 12(4) and (5).

1.71 Much of the response previously provided to the committee has now been included in the explanatory memorandum. The explanatory memorandum states:

1.72 The committee considers that under the law as it currently stands a person has a right to acquire citizenship by birth in the circumstances set out in section 12 of the Citizenship Act. A person may have spent a lengthy period in Australia (up to 10 years) and may have reasonably relied on the existing provisions on the assumption that any changes would not apply to persons born before commencement. As such, the committee considers that the application of any amendments to these provisions to births that occurred before commencement raises questions of fairness similar to those which may arise when laws retrospectively alter rights and obligations.

1.73 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of applying changes to acquiring citizenship by birth to people born before commencement of these amendments.

Retrospective application—applications made on or after 20 April 2017^[41]

1.74 Items 136, 137 and 139 provide that various provisions of the Citizenship Act, as amended by this bill, are to apply to applications made on or after 20 April 2017. This includes amendments made to introduce requirements for taking a pledge of allegiance, integrating into the Australian community, having competent (rather than basic) levels of English and changes to application requirements (particularly around the Australian Values Statement). This has the effect of applying these amendments retrospectively.

1.75 The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively,^[42] as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.76 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

1.77 In this case, the explanatory memorandum provides no detail as to why elements of items 136 and 137 are to apply retrospectively. In relation to item 139 the explanatory memorandum states:

1.78 Thus, the only justification given is that announcements were made on 20 April 2017 by the Executive that it was intended that legislation would be introduced into Parliament to seek to amend the citizenship laws. No detail is provided as to the number of persons likely to be adversely affected and the extent to which their interests are likely to be affected.

1.79 The committee requests the Minister's detailed advice as to the number of persons likely to be affected by the proposals in items 136, 137 and 139 to apply certain amendments made by the bill retrospectively, and whether it is likely that applications may have been made on or after 20 April 2017, but before any passage of the bill, that would not meet the criteria for eligibility for citizenship as a result of the retrospective application of these amendments.

[1] See the committee's Seventeenth Report of 2014, pp 1029-1055 and the Fifth Report of 2015, pp 311-313.

[2] Schedule 1, items 43 and 53. The committee draws Senators' attention to these provisions pursuant to principles 1(a)(ii) and (iv) of the committee's terms of reference.

[5] Schedule 1, items 41 and 53 (proposed paragraph 21(9)(a)). The committee draws Senators' attention to these provisions pursuant to principles 1(a)(iv) of the committee's terms of reference

[8] Schedule 1, item 68, proposed subsection 22AA(4). The committee draws Senators' attention to this provision pursuant to principle 1(a)(iii) of the committee's terms of reference.

[9] For example, certiorari will be futile given that mandamus could not issue to compel the re-exercise of the power, even if it had been unlawfully exercised.

[10] Schedule 1, item 111, proposed section 33A. The committee draws Senators' attention to this provision pursuant to principle 1(a)(ii) of the committee's terms of reference.

[13] Senate Standing Committee for the Scrutiny of Bills, Seventeenth Report of 2014, at pp 1031-1032.

[14] Schedule 1, item 113, proposed section 34AA. The committee draws Senators' attention to this provision pursuant to principle 1(a)(ii) of the committee's terms of reference.

[17] Senate Standing Committee for the Scrutiny of Bills, Seventeenth Report of 2014, at pp 1034-1035.

[19] Schedule 1, item 119, proposed subsections 46(5) and 46(6). The committee draws Senators' attention to this provision pursuant to principle 1(a)(iii) of the committee's terms of reference.

[24] Schedule 1, item 126, proposed subsection 52(4). The committee draws Senators' attention to this provision pursuant to principle 1(a)(iii) of the committee's terms of reference.

[26] To avoid any doubt about this it would be possible for the legislation to be amended to require the AAT to apply any relevant general policy positions on issues relevant to the application of requirements that have a public interest dimension.

[28] Senate Standing Committee for the Scrutiny of Bills, Seventeenth Report of 2014, at p. 1041.

[29] Schedule 1, item 127, proposed section 52A. The committee draws Senators' attention to this provision pursuant to principle 1(a)(iii) of the committee's terms of reference.

[33] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

[34] Senate Standing Committee for the Scrutiny of Bills, Seventeenth Report of 2014, at pp 1043-1044.

[35] Schedule 1, item 130, proposed subsection 54(2). The committee draws Senators' attention to this provision pursuant to principle 1(a)(iv) of the committee's terms of reference.

[38] Senate Standing Committee for the Scrutiny of Bills, Fifth Report of 2015, at pp 311-313.

[39] Schedule 1, subitems 135(2) and 135(3). The committee draws Senators' attention to this provision pursuant to principle 1(a)(i) of the committee's terms of reference

[41] Schedule 1, subitems 136(1), 136(2), 137(6) and item 139. The committee draws Senators' attention to these provisions pursuant to principle 1(a)(i) of the committee's terms of reference.

[42] Including provisions that back-date commencement to the date of the announcement of the bill or measure (i.e. 'legislation by press release').

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests