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Submission on the discussion paper 'Australian citizenship: much more than just a ceremony'

Submission on the discussion paper 'Australian citizenship:
much more than just a ceremony'


September 2006


Submission of: The Human Rights and Equal Opportunity Commission

To: The Citizenship Taskforce,
Department of Immigration and Multicultural Affairs

On the
Discussion Paper 'Australian citizenship:
much more than just a ceremony'

 

Human Rights and Equal Opportunity Commission

Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW 2001

A:
INTRODUCTION

The Human Rights and Equal Opportunity Commission
(‘the Commission’) provides this submission to the Department of
Immigration and Multicultural Affairs (DIMA) in response to the discussion paper Australian Citizenship: Much more than just a
ceremony, September 2006 (‘the Discussion
Paper’).

B: SUMMARY

The Human Rights and Equal Opportunity Commission submission
to the Discussion Paper is divided into Part 1 and Part
2.



Part 1 – Should Australia
introduce a formal citizenship test?




The Commission considers
that, in order to comply with its obligations under international law, the
government must ensure that the proposed citizenship test is

  • pursuant
    to a legitimate aim;
  • proportionate
    to achieving its aims; and
  • based
    on reasonable and objective criteria.



Although the Discussion Paper proposes some
legitimate aims for the introduction of a formal citizenship test, the
Commission considers that it does not provide adequate justification for the
introduction of the proposed test to meet these aims.



The Discussion
Paper does not provide convincing evidence of problems with or inadequacy within
the current system, and does not explain how the proposed changes would better
achieve its aims.



It also fails to consider the negative impact of
the proposed changes and whether other approaches would alleviate these risks
whilst achieving the same
goals.

Part 2 – Safeguards
should a formal citizenship test be introduced

Should a
formal test be introduced, the Commission submits that the government would need
to seriously consider the format, content and implementation of such a test to
ensure that it did not have a discriminatory impact on certain communities
within Australia.



The government should ensure that

  • the
    content and format of the proposed test does not have a discriminatory impact on
    certain groups and individuals wishing to apply for
    citizenship;
  • alternatives
    to a formal test are
    provided;
  • appropriate
    services and assistance are provided to citizenship
    applicants;
  • certain
    categories of people are specifically exempted from the proposed
    test;
  • there
    are appropriate safeguards in place for those who fail the proposed test;
    and
  • it
    introduces programs and education campaigns which promote human rights and
    responsibilities and the need to respect diverse cultures, as part of the
    government’s obligations to assist people from other countries to
    successfully integrate into the
    community.

In addition,
the Commission submits that there is no demonstrated need to introduce a similar
test for permanent residents across the board, as visas need to be tailored to
meet specific needs. This is currently provided for through the existing
Australian Migration Program.

C: RESPONSE TO THE
DISCUSSION
PAPER

PART
1- Should Australia introduce a formal citizenship
test?

Overview
of Part 1

  1. The government’s Discussion Paper considers the merits of introducing a formal citizenship test that consists of the following elements:


    • English test which will test English to the level that allows the applicant to participate in education and employment (para 26).


    • Test of the applicants knowledge of the Australian way of life and values (para 28). The values aspect of the test will ensure the applicant understands common values such as:
      • our respect for the freedom and dignity of the individual;
      • our commitment to the rule of law;
      • the equality of men and women;
      • the spirit of the fair go; and
      • mutual respect and compassion for those in need (para 26).
      The test will also ensure that prospective citizens understand the Citizenship Pledge, their responsibilities, privileges, what they are committing themselves to and a greater understanding and ability to take up the opportunities which Australian citizenship provides (para 37).
  1. The Commission considers that the proposed citizenship test involves an implicit differentiation between citizen and non-citizen. There is also a real prospect of the proposed citizenship test having a discriminatory impact on the ground of language, national or social origin and/or birth. That is, the Commission is concerned that a person from a non-English-speaking background is likely to be at a disadvantage in passing an English test compared with a person from an English-speaking background. Likewise, the Commission is concerned that a person from a developed country is likely to have a greater level of education and therefore at an advantage in passing a formal test compared with a person from a less developed country.


  2. Accordingly, for the reasons set out below, the Commission considers that the government must, in order to comply with its obligations under international law, ensure that the proposed test is: pursuant to a legitimate aim;


      • proportionate to achieving its aims, and


      • based on reasonable and objective criteria.


      • The Commission considers that the Discussion Paper does not provide an adequate justification in these respects for the reasons set out below.

Discrimination
under international
law

ICERD

  1. The International Convention on the Elimination of
    all forms of Racial Discrimination (ICERD) prohibits discrimination on
    the basis of race. Pursuant to Article 1(2), ICERD expressly excludes from its
    scope:
  2. distinctions,
    exclusions, restrictions or preferences made by a State Party to this Convention between citizens and
    non-citizens.

  3. However,
    the Committee on the Elimination of Racial Discrimination (CERD), the body
    responsible for administering ICERD, has confirmed that Article 1(2) must be
    construed to avoid undermining the basic prohibition against discrimination
    under international law.[1] It therefore
    concluded:

    Under
    the Convention (ICERD), differential treatment based on citizenship or
    immigration status will constitute discrimination if the criteria for such
    differentiation, judged in the light of the objectives and purposes of the
    Convention, are not applied pursuant to a legitimate
    aim, and are not proportional to the achievement of this aim. (emphasis
    added)



ICCPR

  1. Article
    26 of the International Covenant on Civil and
    Political Rights (ICCPR),
    states:

    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 such as race, colour, sex, language,
    religion, political or other opinion, national or social origin, property, birth
    or other status.

  2. The
    Human Rights Committee (HRC), the body responsible for administering the ICCPR,
    has confirmed that Article 26 does not merely duplicate the guarantee of freedom
    from discrimination contained in Article 2 of the ICCPR. Article 26 also
    requires State parties to ensure that its legislation is not discriminatory on
    the grounds of race, colour, sex, language, religion, political or other
    opinion, national or social origin, property, birth or other
    status.[2]


  3. However,
    the HRC went on to qualify the scope of Article 26, concluding
    that:

    not
    every differentiation of treatment will constitute discrimination, if the
    criteria for such differentiation are reasonable and
    objective and if the aim is to achieve a purpose which is
    legitimate under the
    Covenant.[3]

These qualifications are also reflected in the
jurisprudence of the HRC.[4]



Conclusions on the
application of ICERD and Article 26 of the ICCPR to the proposed citizenship
test

  1. The
    Commission considers that the proposed citizenship test involves an implicit
    differentiation between citizen and non-citizen. There is also a real prospect
    of the proposed citizenship test having a discriminatory impact on the ground
    of, most relevantly, language, national or social origin and/or birth.
  1. Accordingly,
    in line with the comments of ICERD and the HRC referred to above, the Commission
    considers that the government must, in order to comply with its obligations
    under ICERD and Article 26 of the ICCPR, ensure that the proposed test
    is:


      • pursuant to a legitimate aim;


      • proportionate to achieving its aims; and


      • based on reasonable and objective criteria.

Does
the proposed Citizenship Test have a legitimate aim?

  1. The
    Discussion Paper suggests that the aims of the proposed citizenship test are
    to:


      • Promote participation: the test will assist people to fully participate in the Australian community, by providing a real incentive to learn English and understand the Australian way of life (para 24).


      • Build social cohesion and integration: the test will assist social cohesion and successful integration into the community (para 27).


      • Maximise economic benefits for individual and society: the test will provide a formal mechanism through which Australian can be assured that new citizens have sufficient English and knowledge of Australia to maximise the employment and other economic benefits which benefit the individual and Australia (para 33).


      • Promote understanding of the meaning and opportunities of citizenship (para 38).


  2. In
    the Commission’s view these are, on their face, legitimate aims and are
    not contrary to ICCPR and ICERD. Nevertheless, the Commission considers that in
    order to demonstrate that it is pursuing a legitimate aim, the government should
    provide a cogent and convincing justification for the proposed amendment to the
    current citizenship laws. This should
    include:


      • evidence of problems with or inadequacy within the current system and an explanation of how the proposed changes would better achieve the government’s aims;


      • a proper consideration of the negative impact of the proposed changes; and


      • a proper consideration of whether other approaches would alleviate these risks whilst achieving the same goals.
  1. These
    issues are discussed
    below.

Evidence of
problems with or inadequacy within the current system and an explanation of how
the proposed changes would better achieve its aims

  1. The
    Commission considers that the Discussion Paper does not provide adequate
    evidence of problems with or inadequacy within the current system or an
    explanation of how the proposed changes would better achieve its aims. The paper
    does not provide a proper evaluation of the capacity of the current system to
    achieve the stated goals nor an analysis of how the proposed changes would
    overcome any perceived inadequacies in the current system.


  2. In
    relation to the current system, data appearing on the Department of Immigration
    and Multicultural Affairs (DIMA) website and the Australian Bureau of Statistics
    (ABS) website indicates that a high proportion of people born overseas wish
    to become Australian citizens, in
    that:


      • 95%
        of the Australian population are citizens; [5] and
      • 74%
        of people born overseas who had been resident in Australia for two years or more
        are Australian citizens. [6]


  3. In
    addition, under the current system there are already mechanisms to ensure that
    many migrants entering Australia are proficient in English. For instance, to
    obtain a visa through the General Skilled Migration Program, the majority of
    applicants need to pass an English test to ensure they have the requisite level
    of English to aid employment opportunities upon arrival in Australia. The
    2005-2006 Migration Program accepted between 130,000 and 140,000 migrants to
    Australia. Of these places, 97,500 were migrants coming through the Skill
    Stream.[7] Hence English language testing is an
    unnecessary imposition for a number of people.


  4. Further,
    the majority of people in Australia that are eligible for citizenship are from
    Mainly-English-Speaking Background (MESB) countries, therefore rendering English
    testing superfluous. It is interesting to note that people from the U.K and New
    Zealand were the two largest groups to take up citizenship in the last three
    years. However, when considered in the standardised citizenship rate, they have
    a much lower take-up of citizenship than their Non-English-Speaking Background
    (NESB) counterparts.[8] This infers that barriers
    to citizenship take-up and benefits that this brings to the individual and the
    Australian society are not necessarily related to a lack of English language
    skills.

Consideration
of the negative impact of the proposed changes

  1. There
    are a number of significant public policy and human rights concerns in relation
    to any test that has the potential to increase the grounds for withholding
    citizenship from non-citizens residing within Australia. These concerns arise
    from the increased vulnerability of non-citizens politically, socially and
    economically.


  2. The
    vulnerability of non-citizens is highlighted in the Discussion Paper at
    paragraphs 7 and 8, which outlines the value and benefits of citizenship as;


      • the right to apply for an Australian passport;


      • the right to register children born overseas as Australian citizens by descent;


      • the capacity to seek election to parliament where eligible;


      • the right to vote in federal and state and territory elections, subject to eligibility criteria;


      • access to a full range of financial assistance from the government for higher education under the Higher Education Loan Programme (HELP);


      • access to a full range of employment opportunities, including employment in the Australian Public Service and the Australian Defence Forces; and


      • Australian citizens also have access to full consular assistance when travelling overseas.
  3. The
    Commission also considers that there is a further important benefit of
    citizenship that has not been referred to in the Discussion Paper – the
    freedom from deportation enjoyed by citizens.[9] The Commission refers in particular to the broad discretion of the Minister
    under s 501 of the Migration Act 1958 (Cth) to remove non-citizens from Australia by cancelling their visa on
    ‘character
    grounds’.[10]


  4. The
    significance of these concerns is borne out by a consideration of the relatively
    recent history of citizenship policy in Australia which includes the de facto
    withholding of citizenship from Aboriginal people up until 1967 and the
    introduction of the ‘White Australia Policy’ from the 1850’s
    through to 1973. The broad heading ‘White Australia Policy’ refers
    to a number of policies introduced to restrict non-European immigration to
    Australia and promote white, European immigration to Australia.


  5. In
    view of this history and these concerns it is important to ensure that adequate
    consideration is given to the risks of introducing a formal citizenship test and
    to weigh this against the aims that the proposed test is seeking to achieve. In
    particular the Commission is concerned that there is a risk that the proposed
    changes will increase social disharmony and divisiveness.


  6. As
    a result of the national consultations that the Commission conducted with Arab
    and Muslim Australians through the Isma project in 2003-2004 and through further
    consultations with African communities and Middle Eastern communities in 2006,
    the Commission is of the view that there currently exists in Australia an
    increased level of fear and discrimination directed towards particular sections
    of Australia’s ethnic communities. In this climate there is a risk that
    the introduction of a formal test on English language and
    ‘Australian’ values will have the effect of further marginalising
    these groups rather than encouraging social cohesion. For instance, it may send
    a message to the broader Australian community that certain migrant groups and
    refugees do not value the Australian way of life or understand its values and
    hold values that are different to the rest of Australian society. These messages
    can only exacerbate the current climate of fear and discrimination and reinforce
    the negative stereotypes on which this fear and discrimination is based. The
    potential risk of increasing social disharmony and divisiveness is directly
    contrary to the stated aims of introducing the citizenship test.


  7. The
    Commission also submits that the concept of testing Australian values is
    ill-defined and divisive rather than inclusive. While the Commission
    acknowledges that there is merit in educating prospective citizens about
    Australian law and government, the testing of values raises a number of
    difficulties, not least of which are defining what the values are, determining
    which ones are core values and how they can be tested. Further, citizenship does
    not guarantee the practice of “Australian values” and it is an
    un-evidenced assumption that Australian values are commonly shared. The
    Commission questions the ability to test whether applicants know these values
    and more importantly, whether passing such a test would indicate or lead to a
    greater acceptance and adoption of these
    values.


  8. The
    values deemed important by many Australians and considered to be fundamental to
    an Australian way of life may include tolerance, fairness, compassion and
    respect for difference. These are not unique to Australia but are values held by
    many peoples across the world. Testing these values is inherently difficult and
    the failure to pass this test should not be interpreted as the inability of the
    applicant to fit into Australian society or respect its values.

Whether
other approaches would alleviate these risks whilst achieving the same
goals

  1. In
    view of the potential risk to social cohesion through the introduction of a
    formal citizenship test it is necessary to consider other approaches for
    achieving the stated goals of the proposal which do not incur the risks
    associated with the proposal.


  2. The
    Commission submits that a commitment to Australian values and way of life
    develops through positive interaction within the community, through school
    education, community activities and employment. Such endeavours are viewed by
    the Commission as a more positive and successful approach to integration than
    the study and completion of a formal citizenship test.


  3. One
    approach to consider would be to augment the current incentives available and
    create a course of study directed to participation and inclusion through
    citizenship, which could be compulsory for applicants for citizenship. A course
    of similar nature to the Adult Migrant English Program (AMEP) course Let’s participate: A course in
    Australian Citizenship, is considered a better approach to achieving the
    goals of the changes proposed in the Discussion Paper. Participation in a course
    would be a more inclusive and constructive way of ensuring that people wishing
    to become citizens have adequate English and the knowledge of Australia to fully
    participate in Australian society. However, the granting of citizenship should
    not be contingent on passing a test at the end of the course. As mentioned in
    Part 2, paragraph 39 of the submission, such a course would need flexibility and
    appropriate services to cater for the various needs of participants.

Conclusions
for Part 1

  1. The
    Commission does not suggest that the government is pursuing an illegitimate aim
    in seeking to introduce a formal citizenship test. Nevertheless, the Commission
    considers that, to date, the government has failed to adequately articulate its
    aims in introducing the proposed changes.


  2. For
    the reasons discussed above, the Commission submits that the Discussion Paper
    fails to demonstrate
    that:


      • the current system is in need of change;


      • if change is required, that the government’s proposed formal citizenship test is the most effective means of improving the current system; or that


      • any potential benefits of the proposed changes will outweigh the likely negative impact of the changes.
  1. The
    Commission considers that, as the Discussion Paper fails to make a case for the
    proposed test, the government should not introduce a formal citizenship test.

PART
2 – Safeguards should a formal citizenship test be
introduced

Overview
of Part 2

  1. As
    noted above in Part 1, the Commission is yet to be convinced that there is a
    need to introduce a formal citizenship test as proposed in the Discussion Paper.
    Indeed, at this stage the Commission considers that any potential benefits are
    likely to be outweighed by the negative impact the changes will have on social
    cohesion within our community.


  2. Notwithstanding
    the above, this Part of the Commission’s submission sets out the
    Commission’s views should such a formal test for citizenship be
    introduced.


  3. The
    Commission considers that the comments below are important for ensuring that any
    differentiation on the ground of language, national or social origin, birth or
    citizenship arising from a formal citizenship test
    is:


      • proportionate to the achievement of a legitimate aim, thereby consistent with the prohibition against discrimination on the basis of race in ICERD; and


      • based on reasonable and objective criteria, thereby consistent with the requirement for equality before the law in Article 26 of the ICCPR.

Content
and format of test

  1. In
    Part 1 the Commission has outlined its concerns with the testing of values. In
    light of these concerns, the Commission submits that the testing of values not
    be undertaken as part of the Citizenship Test.


  2. Even
    if the Test includes the testing of knowledge of Australian way of life and
    Australian law, the government should carefully consider what type of material
    should be included as an adequate reflection of the stated aims of the proposed
    test. The Discussion Paper included sample questions from various international
    citizenship tests, covering history and way of life, such
    as:


    • Which
      of these statements is correct – a television licence is required for each
      television in a home or a single television licence covers all televisions in
      the
      home?[11]
    • Which
      President was the first commander in chief of the US
      military?[12]

The Commission queries whether the
ability to answer questions of this type is either indicative of a person being
a good citizen, or necessary for citizenship. Indeed it is questionable whether
a test of this type would be passed by all current Australian-born citizens.

  1. The
    format of the proposed test should also be considered carefully. Certain types
    of tests could disadvantage some groups. For example, the introduction of
    on-line testing (para 70) could create
    difficulties for applicants without the necessary computer skills, for example,
    the elderly and those from developing countries. Many applicants from developed
    countries will have greater proficiency than their counterparts from developing
    nations. While the Life in the U.K. test [13] website offers instruction in Mouse training and Keyboard training, a certain
    amount of computer proficiency is needed to access this training. In order to
    minimise the risk of the proposed test having a discriminatory impact on persons
    who, because of their birth or previous nationality, have not developed computer
    literacy skills, the Commission considers that the government would need to
    ensure that all applicants for citizenship had access to personal help in the
    most basic of computer skills. Alternatively, the format of the proposed
    testing should not be exclusively on-line, but could include more traditional
    types of testing, such as in paper
    form.

Alternatives
to formal testing

  1. Even
    if a formal test were to be introduced, there should be alternatives and
    flexibility to testing for those who wish to become citizens. As discussed in
    Part 1, the Commission suggests that a course-based approach could meet some of
    the aims of the Discussion Paper. The government could provide a course as an
    alternative to certain groups unable to sit the test for various reasons.


  2. If
    the government were to implement such a course, consideration would be needed to
    ensure that non-citizens are provided with appropriate services and assistance
    to attend the course. The Commission submits that the following arrangements
    should be implemented to assist attendance at English/citizenship
    classes:


      • Flexible hours. Many new arrivals enter full-time work when they reach Australia and cannot attend English classes that conflict with their working hours.


      • Child care service. Many new arrivals, particularly women, struggle to attend English classes because of family commitments. This is exacerbated by having no network of other family and friends to assist with child care duties.


      • Numeracy and literacy basics. Many new arrivals to Australia have come as refugees from conflict zones where access to schooling may be limited or non-existent.


      • Consideration of trauma. Many new arrivals who have come as refugees are suffering from a high level of trauma as a result of conflict in their home countries. Programs to assist these people in recovering from their trauma should take preference over English classes. It is essential that traumatised people have the chance to recover before considering an undertaking of language or work commitments.
  1. Another
    possible alternative is to offer applicants for citizenship the chance to gain
    citizenship through an interview process. This would ensure that those unable to
    pass a formal test would be given an alternative method to demonstrate their
    eligibility for citizenship. Within an interview, an applicant could be tested
    for English proficiency and given the opportunity to provide supporting evidence
    of participation and integration in the community, for
    example;


      • employment records;


      • certificates for completed courses;


      • evidence of involvement in community activities, associations and projects;


      • volunteer work; and


      • referees.

Provision of
appropriate services and assistance to citizenship applicants.

  1. The
    Commission considers that, in order to advance its stated aims of enhancing
    skills, employment and participation of new citizens, the government must ensure
    that citizenship applicants are provided with appropriate services and
    assistance to assist them to pass the proposed test.


  2. In
    relation to the provision of such programs the Commission notes with concern the
    recent statements made by Ms Anna Burke in Australian Parliament recently, to
    the effect that the government has cut funding to the AMEP. As stated in
    Hansard:

    But,
    if we are to encourage people to ensure that they have English when they take up
    their citizenship, surely we must be putting in the resources so they can
    actually do it. The government has in fact slashed money from English classes by
    $11 [$10.8] million. It has under funded programs. It does not ensure that there
    are sufficient hours. It does not ensure that the classes are at flexible times
    and it does not provide child
    care.[14]

  3. Cutting
    of funding to migrant English programs and Migrant Resource Centres, another
    invaluable tool in helping new arrivals in Australia to integrate, is
    counter-productive to the government’s desire for new citizens to be
    highly proficient in English, in order to fully participate in Australian
    society.

Exemptions
from the test for certain individuals and groups

  1. If
    the proposed test were to be introduced the government would need to implement
    appropriate safeguards, in the form of exemptions, to ensure that the government
    meets its international obligations. The Commission submits that the following
    groups should be exempt from the
    testing:


      • children;


      • refugees;


      • people on family re-unification visas (if the family is still in Australia);


      • people who marry in Australia; and


      • people whose children, or grandchildren are born in Australia.
  1. The
    Commission is particularly concerned about the possible outcome of formal
    citizenship testing rendering a child stateless. The Convention on the Rights of the Child (CRC) seeks to ensure that a child is protected from discrimination regardless
    of the status of his or her parents, guardians or family
    members.[15] The CRC also sets out the right of
    every child to acquire a nationality (Article 7) and the right of every child to
    preserve his or her identity (Article 8). Article 24 of the ICCPR also protects
    a child’s right to a nationality. The government should make certain that
    a child would not be denied any of the rights in the CRC because his or her
    parents cannot obtain citizenship.


  2. Refugees,
    by their very definition, do not have effective protection of their original
    nationality and it is therefore imperative that they have access to a new
    nationality. Article 34 of the Refugee
    Convention requires Australia to tale steps, ‘as far as possible,
    to facilitate the assimilation and naturalisation of
    refugees’.[16] A citizenship test should
    not be a bar to this right.


  3. The
    Commission submits that steps should be taken to protect the family unit if
    formal citizenship testing were to be introduced, in accordance with Article 23
    (family life) of the ICCPR.[17] In addition,
    Article 10 of the CRC emphasises the importance of family reunification. All
    family members should be entitled to citizenship without all having to pass the
    proposed test.


  4. The
    government should ensure that the failing of a citizenship test would not lead
    to statelessness, in accordance with the Convention relating to the Status of Stateless
    Persons. [18]


  5. The
    Commission submits that exemptions should also be granted to older applicants,
    incapacitated persons, persons with a mental, learning or other relevant
    disability and long term
    residents.

Safeguards
for those who fail the test

  1. As
    noted above, the Commission is concerned that the proposed citizenship test may
    have a discriminatory impact on certain groups of persons, particularly on the
    grounds of language, national or social origin and/or birth. In light of these
    concerns, the Commission considers that it is appropriate that the proposed
    citizenship test is accompanied by a clear and effective right of appeal,
    including the possibility of full merits review. This is important for ensuring
    that persons whose rights and freedoms are violated by the test or its
    application have access to an effective remedy, as required under Article 3 of
    the ICCPR. It would also ensure that any areas of discretion within the test,
    or aspects of the testing open to subjective interpretation, can be reviewed
    with ‘fresh
    eyes’.


  2. The
    Commission also submits that there should be no limit on the amount of times an
    applicant is permitted to re-sit the proposed citizenship test and no waiting
    period in between failure to pass the proposed test and the opportunity to
    re-sit. Many people who repeatedly failed the proposed test would continue to go
    on living in Australia as permanent residents. The danger of this situation is
    that these people will be labelled as ‘outsiders’, unable to
    integrate fully into Australian society through citizenship.

Human
rights programs and education campaigns

  1. One
    of the stated aims of the proposed citizenship test is to build social cohesion
    and assist people from other countries to successfully integrate into the
    community. As indicated above, the Commission considers this a legitimate aim
    consistent with human rights principles. One aspect of integration is ensuring
    participation in the broader society through employment and other activities.
    The Commission acknowledges the importance of knowledge of English and an
    understanding of the underlying legal and governing institutions in achieving
    these goals. Another aspect of integration, not referred to in the Discussion
    Paper are the rights enjoyed by citizens and non-citizens alike to practice and
    enjoy their culture and religion and to be protected from discrimination when
    they seek to do this.


  2. The
    Commission submits that if the government is to implement the proposed test for
    prospective citizens it should also, as part of the same process, embark on an
    education program for the broader society about human rights and
    responsibilities. Such a program would further advance the aim of promoting
    mutual respect between diverse cultures, whilst acknowledging the contribution
    that migrants and refugees make to Australia.


  3. To
    develop this, funding for specific programs to change community attitude, combat
    prejudice and discrimination against all Australians would improve opportunities
    for new Australians to gain meaningful employment.

Permanent
Residents

  1. Australia’s
    Migration Programme currently provides a range of permanent residency
    visas tailored to meet both Australia's needs and the needs
    of refugees and migrants.  The Commission recognises that English
    language proficiency may be essential for certain occupations;
    however English language is already recognised as criteria in a number
    of visa categories. There is no evidence provided in the Discussion Paper
    to indicate that the current criteria for visa categories for permanent
    residency and long term temporary residency is unsuccessful and should be
    replaced by a formal test. Further, introducing such a test would run the
    risk of creating a shortage of workers for certain trades and
    occupations where high level English is not
    necessary. 


  2. The
    Commission also finds that the Discussion Paper provides no convincing evidence
    of a need for testing permanent visa applicants for their knowledge of
    Australian values, for the same reasons identified in Part 1 of this
    submission.  The majority of migrants entering Australia under the Skill
    Stream have high rates of participation in the labour
    market.[19] As a consequence these same people
    are, on the whole, integrating into the wider Australian community through their
    participation in
    work.  


  3. For non-work
    related permanent visa applicants, English language and values tests may
    be highly inappropriate. Humanitarian applicants should not have to
    demonstrate English language competency, or an understanding of values, in order
    to find permanent refuge and settlement in Australia. It would also be
    inappropriate to require family reunion applicants, such as applicants for aged
    parent or spouse visas, to pass a test of English or Australian values. Such
    testing may also be counterproductive to encouraging skilled migrants to choose
    Australia as a place of permanent settlement, as they, quite reasonably, wish to
    have their families join them.

Final
Conclusions for Part 1 and Part 2

  1. The
    Commission does not suggest that the government is pursuing an illegitimate aim
    in seeking to introduce a formal citizenship test. Nevertheless, the Commission
    considers that, to date, the government has failed to adequately articulate its
    aims in introducing the proposed changes.


  2. The
    Commission therefore considers that, as the Discussion Paper fails to make a
    case for the proposed test, the government should not introduce a formal citizenship test.


  3. However,
    should a formal citizenship test be introduced, the government would need to
    seriously consider the content, format and implementation of the proposed test
    to ensure that it did not have a discriminatory impact on certain communities
    within Australia. There would also need to be various safeguards and exemptions
    in place to ensure that a formal citizenship test is a transparent and fair
    process.

[1] Committee on the Elimination of Racial Discrimination (CERD), General
Recommendation 30 (Discrimination against non-citizens), paras 2 – 3.

[2] Human Rights Committee (HRC), General Recommendation 18 (Non-discrimination),
para 12.

[3] Human Rights Committee (HRC), General Recommendation 18 (Non-discrimination),
para 12.

[4] See, eg, Broeks v. The Netherlands (172/1984), ICCPR, A/42/40 (9 April 1987) 139 at para. 13; Borzov v Estonia (1136/2002), ICCPR
C/81/D/1136/2002 (2 November 2001) at paras 7.3 – 7.4.

[5] Department of Immigration and Multicultural Affairs (DIMA). Available at
http://www.citizenship.gov.au/resources/facts-and-stats/stats.htm

[6] Australian Bureau of Statistics (ABS). Year
Book Australia, 2006. Available at
http://www.abs.gov.au/ausstats/abs@.nsf/bb8db737e2af84b8ca25717

80015701e/01408D0F3CFFA83ECA2570DE0006E28E?opendocument

[7] Bob Birrell, Lesleyanne Hawthorne and Sue Richardson (2006), Evaluation on the General Skilled Migration
Categories, Commonwealth of Australia, 2006, p
10



[8] ABS, Year Book Australia, 2006.
Available at
http://www.abs.gov.au/ausstats/abs@.nsf/bb8db737e2af84b8ca25717

80015701e/01408D0F3CFFA83ECA2570DE0006E28E?opendocument

[9] The Minister’s power to deport persons under the Migration Act 1958 (Cth) is limited to
non-citizens: see Part 2, Division 9. Similarly, unlike the case with
non-citizens, a citizen can not be removed from Australia on the basis of being
an unlawful non-citizen: see s 14 of the Migration
Act.



[10] The breadth of the Minister’s discretion under s 501 was recently
confirmed by the High Court in Minister for
Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA
50.

[11] DIMA, Australian Citizenship: Much more than
just a ceremony, Life in the UK Test , p 21

[12] DIMA, Australian Citizenship: Much more than
just a ceremony, United States – Citizenship Test, p 27

[13] Available at http://www.lifeintheuktest.gov.uk/htmlsite/mouse_10.html.
Available at http://www.lifeintheuktest.gov.uk/htmlsite/keyboard_10.html

[14] Ms Anna Burke, House of Representatives
Hansard, Wednesday 1st November 2006, pp 108-109

[15] Article 2: ‘State parties shall take all appropriate measures to ensure
that the child is protected against all forms of discrimination or punishment on
the basis of the status, activities, expressed opinions, or beliefs of the
child’s parents, legal guardians, or family
members.’



[16] Article 34: ‘The Contracting States shall as far as possible facilitate
the assimilation and naturalization of refugees. They shall in particular make
every effort to expedite naturalization proceedings and to reduce as far as
possible the charges and costs of such
proceedings.’



[17] Article 23: ‘The family is the natural and fundamental group unit of
society and is entitled to protection by society and the
State.’



[18] Article 32: ‘The Contracting States shall as far as possible facilitate
the assimilation and naturalization of stateless persons. They shall in
particular make every effort to expedite naturalization proceedings and to
reduce as far as possible the charges and costs of such proceedings.’

[19] Productivity Commission , Economic Impacts of
Migration and Population Growth, , 24 April 2006, pp 59-60

 

Last
updated 12 August 2003.