Balneus

Australian Lefty on Politics, Governance, Science and Info Management

Citizenship Testing: Committee gives minister slap on wrist

Posted by Dave Bath on 2007-07-31


With the Haneef bungles in mind, comments critical of extensive Ministerial "discretion" in the the report and submissions on the Citizenship Testing Bill can sound sarcastic in the mind’s ear.

Dr Ben Saul, Director, Sydney Uni Centre for International and Global Law would not have meant his submission to have such a tone, but what do you hear after the Haneef affair and the Minister’s appearance of playing politics?

While I do not doubt the good intentions and integrity of the Minister for Immigration and Citizenship, public confidence in the impartiality and appropriateness of the test cannot be assured if it is left to one politician to determine its content.

Delegation of Power and Lack of Parliamentary Scrutiny over Politicised Issues section

Even the committee majority report raised concerns about this, but only made "wrist-slapping" recommendations.

What else was worrying was the lack of an ALP dissenting opinion.  I’ll come to that later.

I’ll review the report, including submissions after the closing date (there were many), and the dissenting reports.  Thank goodness so many groups made submissions, because at least we were able to force a couple of minor concessions in the majority recommendations of the committee.

Most of the submissions went along the same lines as those reviewed in a previous post, and indeed the later submissions published after closing were if anything more worried about the bill and had greater weight (including submissions on behalf of the Chief Minister of the ACT and Premiers of Tas, Vic and WA).

The critique by Andrew Bartlett’s dissenting report is a good one, and well worth reading as it touches on a broad range of issues about the nature of our society, and whether legislation must have a purpose rather than merely create an issue for electioneering.  The Green’s dissent was fine, but not in Bartlett’s league.

One key issue was that no need for the legislation had been demonstrated.  The possible unfairness of the test outlined by many received only a "review results after 3 years" recommendation from the majority report, and the many serious objections to the unlimited discretion of the minister to set the tests, and hold the questions secret, got merely a recommendation from the committee to table the questions in parliament and add a requirement that the test reflect the purpose described elsewhere in the bill.

But the Minister retains enormous power, skirting parliamentary oversight of the way decisions are made.  The processes are at the Minister’s discretion, to be varied at whim, rather than laid down for all to see and administered by tribunals or sanctioned by the parliament.  This is happening all too often, in too many areas.  The executive arrogates powers normally considered the role of parliament, and scope for abuses and politicization multiply like rabbits with viagra.

This issue, the arrogation of executive power, is much wider than the already-wide issues about the nature of Australian citizenship.

I’m quite pleased that most of a single paragraph of my submission was included in the report which addresses this issue:

4.12  Another submission argued that:
There seems to be no restriction on the minister making determinations on the content, passing grades, means of administration or eligibility to set the test on an individual-by-individual basis, opening up the possibility for abuse similar to that a few decades ago when a test “in a language of the British Isles” was given to a continental European in Gaelic …

I must wonder which of Bartlett’s telling points the ALP committee members disagreed with, and therefore why they gave no dissenting report themselves.  If they were adhering to their principles, those ALP principles are heartless.  If the ALP members didn’t dissent to avoid an (easily deflected) accusation of "unAustralian" for reasons of convenience, they’ve lost their moral authority.

If there had been fewer people willing to put their views to the committee, I wonder if even the wrist-slaps would have made it into the final report.  But there is hope, at least we were able to get some concessions, but it took approximately a 30:1 ratio of naysayers to supporters to get that far.  How many people were against this bill in the press, or in blogs? If only a small fraction of these people had written in, I think there may have been a chance to achieve more.


Notes:

  • Take my poll on whether or not you’ve made a submission to a senate inquiry (or equivalent if you’re not in Oz), and if you haven’t, what is the reason?
  • The "Gaelic" test I wrote about has just got a write-up by Glenn Nicholls at Australia Policy On-Line (2007-07-26), specifically pointing out the parallels between Mohamed Haneef and Egon Kisch (I’d forgotten the name when writing my submission, and I thought it was Menzies as PM in the 1950s rather than as AG in the 1930s).

    The decision by the immigration minister, Kevin Andrews, to cancel Dr Mohamed Haneef’s visa has potentially condemned him to years in immigration detention followed by deportation – even if he is acquitted of the charges against him.  But there are telling precedents in Australian history for questioning the wisdom of Andrews’ decision.

    In 1934 Robert Menzies, then attorney-general, tried to deport the Czech communist writer Egon Kisch.  Menzies had tried to keep Kisch out of the country after he received secret intelligence from British agents that Kisch had been denied entry to Britain.  Kisch dramatically made landfall in Australia by leaping from his ship onto the Melbourne docks, breaking his leg, and his supporters managed to get his case before the local courts.

    Menzies told parliament that the cause Kisch championed involved “force and bloodshed” but in court the Commonwealth failed to adduce any evidence about Kisch’s alleged subversive activities.  Instead it turned to an inscrutable instrument in the Immigration Act to declare Kisch a prohibited immigrant, the dictation test.  Officials made sure that Kisch failed the test by dictating a passage in Scottish Gaelic.

  • Hat-tip to Kieran at the DeadRoo for noting the only Liberal too take a principled stand on this in the house was Petro Georgiou, and that the ALP shamefully supported the bill.  Kieran (who is a Green campaigner) urges good Australians to write and thank Georgiou, and I second that.
  • The full text of Andrew Bartlett’s dissenting opinion and appendix is worth reading, but I’ve got to include the main part of it here, but bolding is mine, not the Senators:

    Dissenting report by Senator Andrew Bartlett

    The submissions and evidence presented to this inquiry demonstrate that the federal government’s proposed new citizenship test is little more than a poorly thought through, pre-election stunt.  It is probable that over time it will end up being a relatively harmless, albeit unnecessarily expensive and bureaucratic stunt.  However, there is a risk that it will degrade the credibility of the citizenship compact. The concept of Australian citizenship is too important to risk harming it with divisive or trivializing measures.

    The ‘consultation’ process used prior to the government adopting its proposal for a new citizenship test was a farce, the ‘discussion paper’ produced as part of that process was ill-thought out, and the many concerns expressed by migrant groups in Australia were all but ignored.  The Australian Democrats response to that discussion paper is included as an appendix to this dissenting report.  To repeat one statement from that response, “focusing on whether or not there should be a test, and what should be in it, is premature without wider debate, understanding and agreement about the nature of citizenship and what it entails for our nation, for the individuals who hold it, for the society they are part of and for the governments that serve them.”  That is where the political and public debate should be directed if we want to strengthen the effectiveness and meaning of the citizenship compact, and public understanding and support for it.

    There was no evidence put forward at any stage of this Inquiry to indicate how this citizenship test process will improve the integration of people into the Australian community.  Everyone who takes the test is already a permanent resident in Australia, and everyone who fails it will remain a permanent resident.

    The time to address integration issues is when people first arrive in Australia, not when they are already permanent residents who have lived here for at least four years.  Given that tests by their nature are designed to exclude some people, this process may increase segregation and division, rather than decrease it.

    There has been no evidence put forward to indicate that there are any problems with the current arrangements in qualifying for citizenship, let alone how this test will improve them.  Despite witnesses pointing to the use of a citizenship test in a few other countries, there was no evidence provided to show that these tests had produced any substantive benefits or improvements in those countries, or indeed to assuage any fears that they may have had a negative impact on more vulnerable minority groups.

    The group in our community who are most likely to have difficulty with formal tests are people from refugee backgrounds, yet this group have been the ones who have been quickest to take up citizenship after their arrival in Australia. In that sense, they have been the most successful at integration.

    By contrast, the group who have been the least willing to fully integrate, using the criteria of being willing to and interested in taking up citizenship, have been permanent residents who are originally from the United Kingdom or New Zealand.  According to figures published by the Department of Immigration and Citizenship, there are currently over 900 000 permanent non-citizen residents who are eligible to become Australian citizens – that is people who live permanently in Australia but who have not yet got around to taking up citizenship, or simply do not want to – and more than half of them are from these two countries.  By contrast, people from non-English speaking countries, and particularly those who come here as refugees, have been the quickest to take up their right to citizenship and become a full member of their new nation and its society.

    If there are over 450 000 people from the UK and New Zealand residing permanently in Australia who haven’t become citizens under previous requirements, they will be even less likely to do so now if there is an extra hurdle of having to undertake a test.  This is not a commentary on whether this is positive or negative action, it simply demonstrates that suggestions that a citizenship test will of itself encourage better integration or commitment to Australia have no sound basis.

    In my view, there have been insufficient arguments put forward to justify proceeding with the legislation.  However, in the event that the legislation is proceeded with, there are a number of improvements which should be made.

    It is crucial that there be a specific amendment made to the legislation to ensure that refugee and humanitarian entrants from non-English speaking backgrounds with low-level English proficiency may be exempted from the test if they fulfil an alternative requirement such as attending a citizenship course.

    I also support the few recommendations which the Committee has put forward, particularly the requirement that the citizenship test questions be made public.  There has been understandable disquiet amongst many sections of the Australian community that the questions developed by the government, or a future government, may be politically or culturally biased and even be designed with an eye to excluding particular groups within the community.  This of course has been done before in Australia, where tests have been designed and applied with a deliberate aim of keeping potential migrants from certain countries or regions out of Australia.  Given that one of the supposed aims of the new citizenship test is to encourage a better understanding of Australia’s history, it would be ironic for the Senate to ignore history and refuse to acknowledge the danger of history repeating itself.

    Despite the misleading mantra by the government that ‘citizenship is a responsibility, not a right’, the fact is that citizenship is a right for many millions of people who are born in Australia to Australian parents.  Those people (of which I am one) should not be in a position where they have greater rights than other Australians.  There is a real risk that migrants applying for citizenship will be required to demonstrate a greater knowledge of Australia than that which many Australian born citizens have.

    It is important for public confidence, and particularly the confidence of Australians and residents from migrant backgrounds, that the questions be made public.  They must also be open to disallowance by the Senate.

    Recommendation 1
    No case has been made that there is any problem with the existing system, or that the proposed new citizenship test will improve things.  On the contrary, the evidence suggests it will be an expensive, potentially divisive or at best benign process which will do little to enhance integration or strengthen the citizenship compact between Australians and their governments.  I recommend that the legislation not be proceeded with.

    In the event the legislation is proceeded with, I make the following further recommendations.

    Recommendation 2
    The test must be tested.  No set of citizenship test questions should be adopted for use until they have been tested on a cross-section of Australian-born citizens.  If more than a minimal percentage of people fail the test, the questions should not be used.

    Recommendation 3
    Determinations made by the Minister regarding the citizenship test, and the test questions themselves, must be subject to disallowance by the Senate.

    Recommendation 4
    That a specific amendment is made to the legislation to ensure that refugee and humanitarian entrants from non-English speaking backgrounds with low-level English proficiency may be exempted from the test if they fulfil an alternative requirement such as attending a citizenship course.

    Senator Andrew Bartlett
    Democrat Senator for Queensland

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One Response to “Citizenship Testing: Committee gives minister slap on wrist”

  1. […] piece in The Age (2007-08-15), "This is no test of good citizens" mirror my own: see "Citizenship testing committee gives minister slap on wrist") (2007-07-31), and "Review of Citizenship Testing Bill submissions" […]

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