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Australian Citizenship Amendment (Citizenship Testing) Bill 2007 [2007] AUSStaCSBRp 50 (8 August 2007)

Australian Citizenship Amendment (Citizenship Testing) Bill 2007

Introduction

The Committee dealt with this bill in Alert Digest No. 6 of 2007. The Minister for Immigration and Citizenship responded to the Committee’s comments in a letter dated 11 July 2007. A copy of the letter is attached to this report.

Extract from Alert Digest No. 6 of 2007

Introduced into the House of Representatives on 30 May 2007

Portfolio: Immigration and Citizenship

Background

This bill amends the Australian Citizenship Act 2007 to provide for the testing of prospective applicants for Australian citizenship by conferral. The bill:

• requires certain applicants for Australian citizenship by conferral to have successfully completed a citizenship test prior to making an application;

• outlines the general eligibility criteria for Australian citizenship; and

• provides that the fee prescribed for an application to become an Australian citizen may include a component that relates to the test or tests sat by the applicant.

Commencement on Proclamation
Schedule 1

Item 2 in the table to subclause 2(1) of this bill provides that the amendments proposed in Schedule 1 will commence on Proclamation, with no time being specified within which the amendments must commence in any event.

The Committee takes the view that Parliament is responsible for determining when laws are to come into force. The Committee will generally not comment where the period of delayed commencement is six months or less. Where the delay is longer the Committee expects that the explanatory memorandum to the bill will provide an explanation, in accordance with Paragraph 19 of Drafting Direction No. 1.3.

In this instance the explanatory memorandum indicates that the Minister needs to have this broad discretion to determine the date of commencement of the amendments proposed by the bill on the basis that ‘an unspecified period of time is required prior to commencement to implement arrangements for the test and any computer systems required to conduct the test and to ensure that applicants for Australian citizenship who will be required to complete the test have reasonable access to necessary information and testing facilities.’ The Committee seeks the Minister’s advice whether it would be possible to make the necessary arrangements within a fixed period after Assent and thereby limit the currently unfettered discretion granted to the Minister.

Pending the Minister’s advice, the Committee draws Senators’ attention to the provision, as it may be considered to delegate legislative powers inappropriately, in breach of principle 1(a)(iv) of the Committee’s terms of reference.

Relevant extract from the response from the Minister

Commencement on Proclamation

Although I agree that in general it is preferable for proposed legislation to be more specific about when it will commence, in this case I do not believe that it is practical or appropriate to do so. As the Explanatory Memorandum indicates, an unspecified period for commencing the legislation is needed to ensure that when the new testing requirement comes into force all the necessary systems are in place and that potential applicants have proper access to the information and testing facilities they need to sit the test. If the legislation were to commence prematurely (by default) it would not only be counter productive, it would be unfair.

As you will be aware I have indicated that at this stage I am hopeful that the new testing regime will to (sic) come into force by 17 September 2007 and I am confident that my department is working hard to achieve that date. However, given the size of the undertaking and the practical complexities involved it would not be responsible of me to give any guarantees to that effect or to be more specific about when the legislation will commence. To give the Committee a sense of what is involved I note that before the legislation can commence, testing centres will need to be organised, fitted out and established in all 13 Departmental offices and in another 34 regional centres across the country. Amendments will need to be made to the Australian Citizenship Regulations 2007 and associated changes to the Australian Citizenship Instructions and all relevant forms and business process maps. New and complex IT systems are currently being developed but will need to be finalised, tested and put in place. Similarly, resource materials supporting the citizenship test are also being prepared but need to be finalised and a full public information campaign needs to be launched so that potential applicants are fully aware of the new requirements and are given a proper opportunity to meet the new requirements.

In the circumstances I don’t believe that it would be prudent to be more specific about when the legislation will commence.

The Committee thanks the Minister for this comprehensive response and notes the Minister’s hope that the legislation will come into force by 17 September 2007.

Insufficient scrutiny of instrument and excluding merits review
Schedule 1, item 5

Proposed new subsection 23A(7) of the Australian Citizenship Act 2007, to be inserted by item 5 of Schedule 1, states that a determination under new subsection 23A(1) is not a legislative instrument. The explanatory memorandum asserts that the reason for the inclusion of new subsection 23A(7) is that the Ministerial determination under new subsection 23A(1) ‘is not of a legislative character.’ The determination thus referred to is one under which the Minister is to approve a test, to be administered to applicants for Australian citizenship in order to determine whether they satisfy the eligibility criteria for citizenship, in proposed new paragraphs 21(2)(d), (e) and (f). The effect of this new subsection 23A(7) is that the test will not be subject to disallowance or sunsetting under the Legislative Instruments Act 2003.

Section 5 of the Legislative Instruments Act 2003 defines a legislative instrument as follows:

‘(1) Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing:

a) that is of a legislative character; and

b) that is or was made in the exercise of a power delegated by the Parliament.

(2) Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:

a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and

b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right or varying or removing an obligation or right.’

If the determination of a proposed citizenship test is not of a legislative character, then it may be considered not to apply generally to a group of people, but is more of an administrative decision, tailored to a particular applicant for Australian citizenship. This view may be supported by the provision in new subsection 23A(6), that a determination may cover ‘any ... matter related to the test that the Minister thinks appropriate.’ If the determination is taken to be an administrative decision to approve a test for a particular applicant, then there does not appear to be any provision in the bill for the determination to be subject to any form of merits review under the Administrative Appeals Tribunal Act 1975. The Committee consistently draws attention to provisions that exclude review by relevant appeal bodies or otherwise fail to provide for administrative review.

The Committee seeks the Minister’s advice as to the reasons for deciding that a determination under new subsection 23A(1) is not a legislative instrument and, if the determination is administrative in nature, whether the exercise of the power granted by proposed new subsection 23A(1) should be subject to review.

Pending the Minister’s advice, the Committee draws Senators’ attention to these provisions, as they may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny, in breach of principle 1(a)(v) of the Committee’s terms of reference, and to make rights, liberties or obligations unduly dependent upon non-reviewable decisions, in breach of principle 1(a)(iii) of the Committee’s terms of reference.

Relevant extract from the response from the Minister

Section 23A determination, not a legislative instrument

As I understand it, the Committee maintains that if, as was stated in the Explanatory

Memorandum for the Bill, the Minister’s determination under proposed section 23A is not of a legislative character “. . . it may be considered not to apply generally to a group of people, but is more of an administrative decision, tailored to a particular applicant for Australian citizenship” (underlining mine). This view seems to be based on the Committee’s reading of paragraph 5(2)(a) of the Legislative Instruments Act 2003 (LI Act), which provides that an instrument is taken to be of a legislative character if, among other things, “it determines the law or alters the content of the law, rather than applying the law in a particular case”.

It does not follow, however, that if an instrument does not determine the law or alter the content of the law it must be an instrument that applies the law in a particular case. An instrument that does not determine the law or alter the content of the law may nevertheless be an instrument that applies the law (or makes provision for its application) to a group of people. In my view it is clear that the power in section 23A (1) is a power to make a determination that applies generally and not in relation to a particular case or cases and therefore merits review is not appropriate.

Whatever the precise ‘character’ of a determination under proposed section 23A(l ), the Government does not believe that such a determination, which will approve the content of the new citizenship test, should be subject to the disallowance provisions of the LI Act. In the Government’s view this is likely to be a source of uncertainty and confusion, especially where potential applicants have sat and passed a test which is then disallowed. There may then be a question about whether such persons would need to resit the test in order to satisfy the general eligibility criteria.

The Committee thanks the Minister for this response and notes the Minister’s assertion that a determination under proposed new section 23A, regardless of its character, should not be subject to the disallowance provisions of the Legislative Instruments Act 2003 as this may be a ‘source of uncertainty and confusion, especially where potential applicants have sat and passed a test which is then disallowed.’

The Committee notes, however, that if a determination were disallowed,  subsection 45(1)  of the Legislative Instruments Act 2003 provides that the determination would be treated as if it had been repealed on the date that the disallowance motion takes effect, and section 15 ensures that anything done in pursuance of the determination would continue to be in force and effect up until the disallowance. In addition, the Committee considers that this perceived difficulty could be avoided completely by not allowing any applicant to sit the test determined under proposed new section 23A until such time as the period for disallowance has passed.

As such, the committee continues to draw Senators’ attention to these provisions, as they may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny, in breach of principle 1(a)(v) of the Committee’s terms of reference.