Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016 - 2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AUSTRALIAN CITIZENSHIP LEGISLATION AMENDMENT
(STRENGTHENING THE REQUIREMENTS FOR AUSTRALIAN CITIZENSHIP AND
OTHER MEASURES) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Immigration
and Border Protection, the Hon. Peter Dutton MP)
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Australian Citizenship Legislation Amendment (Strengthening the Requirements for
Australian Citizenship and Other Measures) Bill 2017
OUTLINE
The Australian Citizenship Legislation Amendment (Strengthening the Requirements for
Australian Citizenship and Other Measures) Bill 2017 (the Bill) amends the
Australian Citizenship Act 2007 (the Act) and the Migration Act 1958 (the Migration Act) to
strengthen the requirements to become an Australian citizen and other key provisions.
The amendments to the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 (the Bill) amend the
Bill to:
require an applicant for citizenship by conferral to have 'modest English', replacing
the proposed requirement for an applicant to have 'competent English';
commence on 1 July 2018 with the measures announced on 20 April 2017 applying
from 1 July 2018, replacing the proposal that those measures apply in relation to
applications made on or after 20 April 2017.
FINANCIAL IMPACT STATEMENT
The financial impact of these amendments is nil.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A statement of compatibility with human rights has been prepared for these amendments in
accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at
Attachment A.
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AMENDMENTS TO THE AUSTRALIAN CITIZENSHIP LEGISLATION
AMENDMENT (STRENGTHENING THE REQUIREMENTS FOR AUSTRALIAN
CITIZENSHIP AND OTHER MEASURES) BILL 2017
NOTES ON AMENDMENTS
Amendment 1 Clause 2, page 2 (table item 1)
1. This amendment provides that the whole of the Act commences on 1 July 2018. The
effect of the amendment is that the Bill is no longer proposed to commence on a date to
be fixed by proclamation.
Amendment 2 Schedule 1, item 8, page 4 (lines 22 to 25)
2. This amendment opposes the proposed insertion of the definition of 'competent
English'. This is a consequence of these Government amendments which replace the
concept of 'competent English' with 'modest English'.
Amendment 3 Schedule 1, page 5 (after line 7), after item 10
3. This amendment inserts in section 3 of the Act a definition for 'modest English'. The
definition provides that a person has modest English if the person at least meets the
requirements determined under paragraph 21(9)(a) (see Amendment 7).
Amendment 4 Schedule 1, item 41, page 16 (line 19)
4. This amendment amends the proposed English language requirement. The amendment
requires applicants seeking to satisfy the general eligibility criteria for citizenship by
conferral to have modest English. This replaces the previously proposed level of
'competent English'. A definition of 'modest English' is provided by Amendment 3 of
these amendments.
Amendment 5 Schedule 1, item 46, page 17 (line 9)
5. This amendment relates to the English language requirement. The effect of the
amendment is that a person is capable of satisfying paragraph 21(3)(d) (which relates
to whether a person has a permanent or enduring physical or mental incapacity) where
the incapacity means that the person is not capable of having modest English at the
time the person made the application for citizenship by conferral. This replaces the
previously proposed level of 'competent English'. A definition of 'modest English' is
provided by Amendment 3 of these amendments.
Amendment 6 Schedule 1, item 51, page 18 (line 6)
6. This amendment amends the proposed English language requirement. The effect of the
amendment is that a person aged 16 or over at the time the person makes an application
that is seeking to satisfy the subsection 21(5) criteria for citizenship by conferral
(which relates to a person aged under 18) must have modest English. This replaces the
previously proposed level of 'competent English'. A definition of 'modest English' is
provided by Amendment 3 of these amendments.
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Amendment 7 Schedule 1, item 53, page 18 (line 16)
7. This power relates to the definition of 'modest English' as inserted by Amendment 3 of
these amendments. The amendment empowers the Minister to determine by legislative
instrument requirements for the purposes of the definition of 'modest English'.
Amendment 8 Schedule 1, item 53, page 18 (lines 19 and 20)
8. This amendment relates to the English language requirement. The effect of the
amendment is that the determination to be made under subsection 21(9) is capable of
determining information or a document relating to a person having modest English that
must accompany an application or kind of application.
Amendment 9 Schedule 1, item 136, page 48 (lines 5 to 7)
9. A number of measures relating to the requirements of Australian citizenship were
proposed to apply to applications made on and after the date the measures were
announced by the Prime Minister and the Minister, 20 April 2017. Amendments 9 to
15 amend these application provisions.
10. This amendment provides that the amendments set out in subitem 136(1) apply in
relation to pledges of allegiance made on or after the commencement of the item,
1 July 2018.
Amendment 10 Schedule 1, item 136, page 48 (lines 8 and 9)
11. This amendment removes sections 15B, 19BA and 28B (relating to requirements for
becoming a citizen) and subsections 17A(3), 19DA(3) and 30A(3) (relating to the
cancellation of an approval to become a citizen for failure to make the pledge of
allegiance) from the operation of subitem 136(1). This amendment is a consequence of
amendment 11.
Amendment 11 Schedule 1, item 136, page 48 (lines 14 to 17)
12. This amendment provides that sections 15B, 19BA and 28B (relating to requirements
for becoming a citizen), sections 17A, 19DA and 30A (relating to the cancellation of an
approval to become a citizen) and section 32AB (relating to the pledge of allegiance)
apply in relation to applications for the acquisition of citizenship made on or after
commencement, 1 July 2018.
Amendment 12 Schedule 1, item 137, page 49 (line 31)
13. This amendment provides that the following apply in relation to applications made
under section 21 of the Act on or after commencement of the item, 1 July 2018:
the amendments of section 21 (but not including paragraphs 21(5)(b) and (c)
and subsection 21(6)), section 22 (but not including subsections 22(3) and
22(4)) and section 23A made by the Bill;
the amendments of subsections 22A(1A) and 22B(1A) and 24(5) made by the
Bill.
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Amendment 13 Schedule 1, item 137, page 50 (line 9)
14. This amendment amends the note in item 137 of the Bill to provide that section 22 of
the Act, as in force immediately before the commencement of Part 1 of the Schedule to
the Bill, applies in relation to applications made by certain New Zealand citizens on or
after the commencement of item 137, 1 July 2018. The note refers readers to new
subsection 22(11).
Amendment 14 Schedule 1, item 137, page 50 (lines 11 to 18)
15. This amendment provides that the amendments to sections 25 (which relates to the
Minster's power to cancel an approval for citizenship by conferral) and 52 (which
relates to review of decisions by the Administrative Appeals Tribunal) apply in relation
to approvals to become a citizen given before, on or after the commencement of item
137, 1 July 2018. This amendment also removes from item 137 application provisions
for subsections 17A(1) and (2), 19DA(1) and (2) and 30A(1) and (2) (relating to the
cancellation of approval to become a citizen) as the application of these provisions is
now dealt with in item 136 (see Amendment 11).
Amendment 15 Schedule 1, item 139, page 50 (line 31)
16. This amendments provides that section 46 (which deals with application requirements,
including when an application is invalid) as amended by the Bill applies in relation to
applications made on or after the commencement of item 139, 1 July 2018.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017
These amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Overview of the amendments to the Bill
This Statement of Compatibility with Human Rights relates to the Government amendments
to the Australian Citizenship Legislation Amendment (Strengthening the Requirements for
Australian Citizenship and Other Measures) Bill 2017 (the Bill) and should be read together
with the Statement of Compatibility with Human Rights prepared for the Bill.
The amendments to the Bill will:
Change the required level of English language from 'competent' to 'modest';
Provide that all the provisions in the Bill will commence from 1 July 2018.
The following amendment engages human rights under one or more of the seven core
international human rights treaties to which Australia is a party:
requiring conferral applicants to demonstrate modest English language skills prior
to applying for citizenship.
Currently, a conferral applicant seeking to satisfy the general eligibility criteria must
possess a basic knowledge of the English language. This criterion is satisfied where the
applicant passes the citizenship test. The proposed amendments will require conferral
applicants aged 16 years and over to demonstrate modest English language. The purpose
of this amendment is to allow the Minister to prescribe (in an instrument in writing) types
of evidence that an applicant may present to the Department to establish that they have a
modest level of English. It is intended that the instrument will be similar, where relevant,
to the Language Tests, Score and Passports 2015 (IMMI 15/005) prescribed in the
Migration Regulations 1994. The instrument will specify the English language test
providers, scores, and exemptions to meet the English language requirement prior to
applying for citizenship by conferral. It will also determine the situations where people
are not required to undertake English language testing, for example, if they are a passport
holder of the United Kingdom, the Republic of Ireland, Canada, the United States of
America or New Zealand or have undertaken specified English language studies at a
recognised Australian education provider.
The proposed amendments recognise the importance of having a modest level of English
language and ensure that aspiring citizens can integrate into and contribute to the
Australian community, including by obtaining employment.
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The exemptions to the English language requirement will be for applicants who:
o have permanent or enduring physical or mental incapacity; or
o are aged 60 or over or have hearing, speech or sight impairment; or
o are under 16 years of age; or
o were born to former Australian citizen; or
o were born in Papua; or
o are stateless.
Human rights implications
Requiring conferral applicants to demonstrate a modest level of English language skills
prior to applying for citizenship
This amendment engages Article 3(1) of the Convention on the Rights of the Child (CRC),
which provides that:
[i]n all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.
Under Article 3(1) member states are required to treat the best interests of the child as a
primary consideration in all actions that concern a child. The best interests of the child may
be outweighed by other competing interests.
The requirement for 16 and 17 year olds to demonstrate modest English is not inconsistent
with Article 3(1) of the CRC as speaking English to a modest standard in an English speaking
country supports the best interests of the child by placing the child in the best possible
situation to obtain employment and thrive socially. Further, a majority of 16 and 17 year olds
affected by this requirement will be studying at an Australian education institution and will
be exempt from this requirement under the proposed legislative instrument. To the extent that
this prevents children from obtaining citizenship, it does not preclude them from applying
again once they meet the English language requirements. In similar jurisdictions such as
Canada applicants for citizenship under 18 are required to demonstrate an adequate
knowledge of the official language of the country.
This measure also engages Articles 2(1) and 26 of the ICCPR.
Article 2(1) provides that:
Each State Party to the [ICCPR] undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the [ICCPR], without
distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
Article 26 provides that:
All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any ground
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such as race, colour, sex, language, political or other opinion, national or social origin,
property, birth or other status.
These Articles are engaged on the basis that the measure may be seen to discriminate on the
basis of national origin by treating those applicants with lower levels of English language
proficiency differently to applicants who are more proficient in the English language.
However, this is not dissimilar to the current legislation, which requires applicants to possess
a basic knowledge of the English language; this is presently assessed through the existing
citizenship test. Further, this measure emphasises the importance of having a modest level of
English language and ensures that aspiring citizens can integrate into and contribute to the
Australian community, including by obtaining employment, and/or undertaking vocational/
tertiary education. Insofar as the measure may limit this right, any such limitation is thus a
reasonable and proportionate response to the objective of promoting social participation and
encouraging new citizens to fully participate in Australian life.
The proposed amendments increase the level of English language required to be held by
applicants for citizenship by conferral. This requirement ties in with the new four-year
residence requirement to provide aspiring citizens sufficient time to reach a modest level of
English. This is important because English language proficiency is essential for economic
participation, social cohesion and integration into the Australian community. Those who are
currently entitled to the Adult Migrant English Program will still be able to access this
program to improve their English language skills.
Therefore, this amendment is not inconsistent with Articles 2(1) or 26 of the ICCPR.
Conclusion
The above amendment to the Australian Citizenship Legislation Amendment (Strengthening
the Requirements for Australian Citizenship and Other Measures) Bill 2017 is compatible
with human rights.
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