Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 252 (9 August 2017)

• Chapter 2
• Commentary on ministerial responses
• Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017
• Broad discretionary power and broad delegation of legislative power2
• Broad delegation of legislative power5
• Restriction on judicial review8
• Exemption from disallowance—Australian Values Statement10
• Retrospective application—applications made on or after 20 April 201715

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

2.2 Correspondence relating to these matters is included at Appendix 2.

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
Bill status	Before House of Representatives
Scrutiny principles	Standing Order 24(1)(a)(i), (ii), (iii) and (iv)

2.3 The committee dealt with this bill in Scrutiny Digest No. 7 of 2017. The Minister responded to the committee's comments in a letter dated 21 July 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[1]

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

Initial scrutiny – extract

2.4 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]

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

a person's employment status, study being undertaken by the person, the person's involvement with community groups, the school participation of the person's children, or, adversely, the person's criminality or conduct that is inconsistent with the Australian values to which they committed throughout their application process.^[4]

2.6 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.

2.7 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.

2.8 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.

Minister's response

2.9 The Minister advised:

The Committee suggested the Bill may require amendment to detail how an applicant for Australian citizenship demonstrates they have integrated into the Australian community, and how this criterion should be applied.
The Government considers it appropriate to set out integration factors in a legislative instrument. The instrument will provide opportunities to address particular details of how an applicant may meet the integration requirement. This instrument is disallowable. The Parliament can scrutinise and disallow the instrument when it is tabled in Parliament.
Examples of an applicant's demonstrated integration have been detailed in the Government's announcements as well as in the Explanatory Memorandum. These include evidence of maintaining competent English, sending children to school, seeking employment rather than relying on welfare, earning income and paying tax, and contributing to the Australian community.
The Department of Immigration and Border Protection (the Department) will also assess applicants' criminal records, adherence to social security laws, conduct inconsistent with Australian values such as domestic or family violence, involvement in gangs and organised crime.
The Department is currently preparing the legislative instrument which will outline these relevant factors to consider in assessing an applicant's integration.

Committee comment

2.10 The committee thanks the Minister for this response. The committee notes the Minister's advice that the government considers it is appropriate to set out integration factors in a legislative instrument as the Parliament can scrutinise and disallow the instrument when it is tabled in Parliament. The committee notes the examples provided of the types of matters it is intended will be assessed in determining whether an applicant has integrated into the Australian community.

2.11 The committee's scrutiny view is that significant matters should generally be included in primary legislation to ensure it is subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill (noting that legislative instruments are not subject to amendment). The committee reiterates that it considers that 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.

2.12 From a scrutiny perspective, the committee considers that it would 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, the committee considers it would 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.

2.13 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

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

Broad delegation of legislative power^[5]

Initial scrutiny – extract

2.15 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'.

2.16 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.

2.17 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:

reflects the Government's position that English language proficiency is essential for economic participation and promotes integration into the Australian community. It is an important creator of social cohesion and is essential to experiencing economic and social success in Australia.^[7]

2.18 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'.

Minister's response

2.19 The Minister advised:

The Committee requested the Minister clarify why 'competent English' is not defined in the Bill, and requested more information as to what level of English language an applicant needs to meet this requirement.
The Government announced that applicants must provide results of an approved English language test at competent level in listening, speaking, reading, and writing skills. This is comparable to an International English Language Testing System score of 6 or the equivalent score from a test accepted by the Department. This is consistent with the current 'competent English' test score requirement in the Migration Regulations 1994 (the Migration Regulations).
The Government considers it appropriate to set out the technical details of the level of English language required in a legislative instrument. This gives the Minister the opportunity to determine particular circumstances such as the approved test providers and test scores. It also provides the Minister flexibility to update the instrument in instances where, for example, there is a change in the approved test providers, without going through the legislative amendment process.
This instrument that will be made to set out the detail of the English language requirement will be subject to scrutiny and disallowance when it is tabled in the Parliament. This approach mirrors the definition of 'competent English' in regulation 1.15C and the 'Language Tests, Score and Passports 2015' instrument in the Migration Regulations.
The Bill provides certain applicants exemptions from the English language requirement for example, due to their age, impairment, or incapacity.
Limited exemptions will be available to holders of valid passports of the United Kingdom, the Republic of Ireland, Canada, the United States of America or New Zealand. This is consistent with the 'competent English' requirement for skilled migrants under the Migration Regulations. There will also be exemptions available to applicants who have undertaken specified English language studies at a recognised Australian education provider. All of these exemptions will be detailed in the instrument.

Committee comment

2.20 The committee thanks the Minister for this response. The committee notes the Minister's advice that it is the intention that competent level English will be comparable to an International English Language Testing System score of six or an equivalent score accepted by the Department. The committee also notes the Minister's advice that setting out the technical details of the level of English in a legislative instrument gives the Minister the opportunity to determine particular circumstances such as the approved test providers and test scores and to update the instrument where, for example, there is a change in the approved test providers. The committee also notes that the bill provides certain applicants exemptions from the testing requirement, with further exemptions to be detailed in the instrument, and that the instrument will be subject to disallowance.

2.21 Although the committee accepts that some of the details about the process for testing competency may be appropriate for a legislative instrument, from a scrutiny perspective, it remains concerned that the primary legislation contains no guidance about how the 'competent English' requirement will be understood or applied. As the committee previously noted, significant policy questions are raised by how such a requirement is understood and applied.

2.22 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.23 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

2.24 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of leaving the circumstances in which a person will be deemed to have 'competent English' to delegated (rather than primary) legislation.

Restriction on judicial review^[8]

Initial scrutiny – extract

2.25 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:

(a) an administrative error made by or on behalf of the Commonwealth causes an applicant to believe that he or she was an Australian citizen, and the error contributed to the applicant not being able to satisfy the residence requirement; or

(b) that it is in the public interest to do so.

2.26 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.

2.27 '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]

2.28 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.

2.29 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.

Minister's response

2.30 The Minister advised:

The Committee requested an explanation as to why the Minister does not have a duty to consider exercising the new personal, non-compellable power to waive the general residence requirement.
The Minister may exercise this power where he is satisfied that either:

• an administrative error made by or on behalf of the Commonwealth causes an applicant to believe that he or she was an Australian citizen, and the error contributed to the applicant not being able to satisfy the general residence requirement; or

• it is in the public interest to do so.

Further, the Minister has no duty to consider whether or not to exercise this power, which is consistent with the Ministerial intervention power in the Migration Act 1958.
The Government considers this provision appropriate because the power is discretionary in nature. It would place an undue burden for the Minister to consider exercising this power in every circumstance, particularly where applicants may seek to abuse this provision with frivolous claims.
It is anticipated that there will be minimal cases that will be referred to the Minister to consider exercising this power, and that the power will not be exercised regularly.
Under the current special residence requirements in subsections 22A(1A) and 22B(1A) of the Australian Citizenship Act 2007 the Minister does not have a duty to consider exercising these personal powers. Therefore, the proposed measure is consistent with the current personal and non-compellable powers.
Further, where the Minister exercises this power to waive an applicant's general residence requirement, he must table it in each House of Parliament. This means that the Parliament can supervise the Minister's exercise of this power adequately.

Committee comment

2.31 The committee thanks the Minister for this response. The committee notes the Minister's advice that the power is considered appropriate because the power is discretionary and it would place an undue burden for the Minister to consider exercising this power in every circumstance, particularly where applicants may seek to abuse this provision with frivolous claims.

2.32 The committee accepts the Minister's advice that Parliament can supervise the Minister's exercise of this power, but notes also that no mechanism is provided to supervise any failure to exercise the power in appropriate circumstances.

2.33 The committee appreciates the burden that may be placed on the Minister to consider exercising this power in all instances, however, considers there may be circumstances where the Minister is made aware of facts that indicate a relevant administrative error has been made or there are circumstances that would justify the exercise of this power. The risk of frivolous claims needs to be balanced against legitimate claims being properly assessed where applicants can point to evidence or arguments on which this power may be exercised.

2.34 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of providing that the Minister has no obligation to consider the exercise of this power even in circumstances where the Minister is made aware of facts relevant to its exercise.

Exemption from disallowance—Australian Values Statement^[10]

Initial scrutiny – extract

2.35 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.

2.36 In this instance, the explanatory memorandum states:

Like the Australian Values Statement made for the Migration Regulations, the instrument made under new subsection 46(5) to determine the Australian Values Statement is exempt from disallowance because it concerns matters which should be under Executive control. The instrument provides the wording of the Australian Values Statement that an applicant must sign to make a valid application for citizenship. This aligns with the process for a visa application under the Migration Act which many applicants will have already signed as part of their visa application process. Australian citizenship is core Government policy and aligns with national identity and as such matters going directly to the substance of citizenship policy such as Australian Values should be under Executive control, to provide certainty for applicants and to ensure that the Government's intended policy is upheld in its application.^[11]

2.37 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'.

2.38 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.

2.39 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:

• including at least core 'Australian values' in the primary legislation;

• requiring the positive approval of each House of the Parliament before the instrument comes into effect;^[12]

• providing that the instrument does not come into effect until the relevant disallowance period has expired;^[13] or

• a combination of these processes.^[14]

2.40 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 [2.37].

Minister's response

2.41 The Minister advised:

The Committee asked for further justification for exempting a determination setting out an Australian values statement from disallowance.
The determination will be a registered legislative instrument, which will be publicly available on the Federal Register of Legislation. There will also be an explanatory statement accompanying the determination to demonstrate the purpose and necessity of the Australian Values Statement as well as to justify the inclusion of values considered as Australian values. Therefore the determination will be subject to Parliamentary and public scrutiny. The Parliament can scrutinise the Minister's determination and provide comment on this instrument through other mechanisms. The Committee made the suggestions below to ensure that the Australian Values Statement is not subject to unexpected change:

• including at least core 'Australian values' in the primary legislation;

• requiring the positive approval of each House of the Parliament before the instrument comes into effect;

• providing that the instrument does not come into effect until the relevant disallowance period has expired; or

• a combination of these processes.

The Government notes the suggestions. Currently, provisional, permanent and a small number of temporary visa applicants are already required to sign the Australian values statement as stated in clause 4019 of Schedule 4 to the Migration Regulations. The 'Australian values statement for Public Criterion 4019 - 2016/113' instrument, which is not disallowable, outlines two different Australian Values Statements in visa application forms. These applicants are also asked to understand what may be required of them if they later apply for Australian citizenship.
Aspiring citizens are currently required to sign the long form of the Australian values statement in the declaration in their citizenship application forms. The new Australian values statement will be incorporated into the citizenship application forms.
This provision is consistent with the requirement to sign the Australian values statement in the Migration Regulations.
Applicants can access the Life in Australia book to understand more about life in Australia, including values that are important to Australian society. Further, the public has been made aware of Australia values through the discussion paper - Strengthening the test for Australian Citizenship as well as public announcements made by the Government. In brief, Australian values include, but are not limited to, democratic beliefs, freedom of speech, freedom of expression, and equality of women and men. Conduct that is inconsistent with Australian values includes criminality and domestic and family violence.

Committee comment

2.42 The committee thanks the Minister for this response. The committee notes the Minister's advice that the determination will be publicly available and will be accompanied by an explanatory statement, and as such, will be subject to parliamentary and public scrutiny. The committee notes the Minister's statement that the Parliament can scrutinise the determination and provide comment on the instrument 'through other mechanisms'. The committee also notes the Minister's advice that applicants can access a book to understand more about life in Australia and that the public has been made aware of what 'Australian values' are through a discussion paper.

2.43 The committee reiterates that it has consistently taken the view that removing or limiting parliamentary oversight is a significant matter and any exemption of delegated legislation from the usual disallowance process should be fully justified. In relation to other mechanisms available to the Parliament to properly scrutinise non-disallowable instruments, the committee notes that the Regulations and Ordinances Committee does not examine non-disallowable instruments and the nature of non-disallowance means that the Senate would have no power to set aside any ministerial determination that it considers to be inappropriate. The committee also notes that matters set out in a book or a discussion paper is not analogous to setting matters out in legislation over which the Parliament retains some control.

2.44 From a scrutiny perspective, the committee considers it would be appropriate for the bill to be amended to include at least core 'Australian values' in the primary legislation and if matters are to be included in delegated legislation, that such an instrument be subject to disallowance.

2.45 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of exempting from disallowance a determination setting out an Australian Values Statement.

Retrospective application—applications made on or after 20 April 2017^[15]

2.46 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.

2.47 The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively,^[16] 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.

2.48 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.

2.49 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:

The effect of this application provision is that applications made on or after 20 April 2017 which may have been made in reliance on the requirements of section 46 as it was before being amended by the Bill will not meet the application requirements set out in section 46 as amended by the Bill on and after the commencement of this item. This application provision reflects the changes to citizenship requirements that were announced by the Prime Minister and the Minister on 20 April 2017.^[17]

2.50 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.

2.51 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.

Minister's response

2.52 The Minister advised:

The Committee asked for detailed advice as to the number of persons likely to be affected by the retrospective application of the following amendments:

• requirement to make a pledge of allegiance ( extended to applicants over 16 years of age in all streams of citizenship by application);

• requirement to demonstrate integration;

• requirement to demonstrate competent level of English language;

• new general residence requirement; and

• new requirements for a valid application.

As of 16 July 2017, the Department has received 39,081 applications for citizenship by conferral (for 47,328 primary and dependent applicants) which had been lodged on or after 20 April 2017.
Of these applications, the Department provides the following estimates:

• General residence requirement:

- 21,540 (46%) will meet;

- 25,788 (54%) will not meet;

- The Department notes that there are other residence requirements and Ministerial discretions that these applicants may be eligible for to meet this requirement. These enable reduced residency periods under the 4 years.

• Competent English:

- a number of these applicants will be exempt from the English language requirement on the grounds of:

• age (under 16 or 60 or over); or

• incapacity; or

• speech, hearing or sight impairment; or

• applied under born to a former citizen, born in Papua or stateless provisions; or

• valid passport holder of United Kingdom, Canada, United States, New Zealand or Republic of Ireland

- The potential failure rate for an upfront English language test cannot be determined as the Department does not hold information on citizenship applicants' English language proficiency.

• Integration requirement:

- a number of these applicants will be exempt from the integration requirement including on the grounds of:

• age (under 16 or 60 or over); or

• incapacity; or

• having applied under born to a former citizen, born in Papua or stateless provisions.

- This is a new requirement. The potential failure rate for a new integration test thus cannot be determined as the Department does not hold information that supports this requirement.

Requirement to make the pledge
An additional 429 applicants^[18] who have applied for citizenship by application (conferral, descent, adoption and resumption) on or after 20 April 2017 over 16 years of age will be required to make the pledge of allegiance who would not have been required to under the previous arrangements.
Whilst the additional requirement may increase the time it takes these applicants to acquire citizenship it is not known how many of these applicants would fail to make the pledge and therefore not meet the eligibility requirements to become a citizen.

Committee comment

2.53 The committee thanks the Minister for this response. The committee notes the Minister's advice that as at 16 July 2017 there are 47,328 people who would be affected by the proposed changes to the citizenship laws, and in relation to residence requirements over half of the applicants would not meet the new requirements as set out in this bill. The committee also notes that in relation to the new requirements for possessing 'competent English', the integration requirement and the requirement to take a pledge of allegiance, the Minister is not able to determine the number of people who would be affected by this change.

2.54 The committee reiterates its long-standing scrutiny concern about provisions that have the effect of applying retrospectively,^[19] 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.

2.55 The committee notes that if the changes proposed to be made in this bill were to apply retrospectively to 20 April 2017, over 25,000 people (and possibly many more) would be adversely affected. As such, there would be thousands of people who made their applications for citizenship on the basis of the law as it currently stands who would be refused citizenship despite meeting the criteria that applied at the date that they made their application. The committee considers that the retrospective application of these provisions would have a detrimental effect on a large number of individuals which has not been adequately justified.

2.56 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of the retrospective application of these amendments.

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[1] See correspondence relating to Scrutiny Digest No. 8 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest.

[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.

[3] See item 53, proposed paragraph 21(9)(e).

[4] Explanatory memorandum, p. 27.

[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

[6] Explanatory memorandum, p. 26.

[7] Explanatory memorandum, p. 27.

[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 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.

[11] Explanatory memorandum, p. 53.

[12] See, for example, section 10B of the Health Insurance Act 1973.

[13] See, for example, section 79 of the Public Governance, Performance and Accountability Act 2013.

[14] See, for example, section 198AB of the Migration Act 1958 and sections 45-20 and 50-20 of the Australian Charities and Not-for-profits Commission Act 2012. However, the committee considers that any modified disallowance procedures should still retain the usual disallowance procedures in subsection 42(2) of the Legislation Act 2003—that is, that instruments are taken to be disallowed if a disallowance motion remains unresolved at the end of the disallowance period.

[15] 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.

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

[17] Explanatory memorandum, p. 68.

[18] As at 25 June 2017. This includes number of people aged 16 years and over at time of lodgement with citizenship applications lodged from 20 April 2017, which were still on-hand at 25 June 2017. This includes the Citizenship by Conferral (born in Papua. born to a former Australian citizen. statelessness streams), Descent and Resumption caseloads. Data was not available for the on-hand adoption cases. Note: the figures in this statement are based on finalisation data and are indicative only. Unable to determine exact figures due to insufficient information stored in data.

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