Significant changes to Australia’s citizenship test, altering the way permanent residents can become Australian citizens, come into effect in just over two weeks. Mooted laws tightening access to citizenship and loosening the conditions for its loss have been on the Government’s to-do list for over three years. But while the Government is claiming its single-minded focus on the pandemic is preventing it from doing other things, citizenship-law changes are another matter. Despite earlier unsuccessful attempts to steer these laws through Parliament, COVID-19 has given the Morrison Government cover enough to quietly operationalise the changes.
While eerily reminiscent of the White Australia policy and the immigration dictation tests of earlier times, sitting a formal test to become a citizen is a recent development. Until 1 October 2007 no one sat a formal test to become an Australian citizen. Beforehand, a government officer determined, after an in-person interview, whether the applicant ‘had a basic knowledge of English’, and ‘an adequate knowledge of the responsibilities and privileges of Australian citizenship’.
Eerily reminiscent of the White Australia policy and the immigration dictation tests of earlier times, sitting a formal test to become a citizen is a recent development.
But this was replaced by a multiple choice formal test for ascertaining the prospective citizens had the required adequate knowledge of Australia. Critiqued as a smorgasbord of Australian trivia, including a practice question about Don Bradman’s batting average, in 2008 the Australian Citizenship Test Review Committee, chaired by Richard Woolcott, made largely successful recommendations to change the test. Its focus thus settled on a putative citizen’s understanding of the citizenship pledge. Once the pledge is declared a person becomes an Australian citizen.The official Government book Australian Citizenship, Our Common Bond includes a lot of general information about Australia but only the clearly identified sections of it about the content and meaning of the pledge are actually tested.
These testable sections currently include Australia and its people; Australia’s democratic beliefs, rights and liberties; and government and the law in Australia. But the depth-charge bobbing up after the 15 November 2020 date is a new testable section on Australian values.
What are Australian values? The booklet lists commitment to the rule of law, parliamentary democracy, freedom of speech, freedom of association, freedom of religion, equality of all people before the law, equality of opportunity and a fair go, and mutual respect and tolerance for others. A new set of five questions based on these sections of the booklet must all be correctly answered in order to pass the test, as well as getting 75% or over correct for the other three parts.
Would this government be able to pass its own test, in understanding and implementing and affirming these Australian values?
Are these specifically Australian values, or western liberal values that are affirmed in Australia? And are they indeed consistently affirmed in Australia? It is ironic that part of the test’s explosive impact might well be on the government itself for would this government be able to pass its own test, in understanding and implementing and affirming these Australian values?
Let’s begin with the first one – commitment to the rule of law. The ongoing closed court case against Bernard Colliery – the former ACT attorney-general and lawyer for Witness K, a former ASIS officer turned whistleblower – raises questions about the government’s commitment to this particular Australian value.
The Australian Law Council, for one, in its 16 October 2020 press release identifies the lurking danger. The legislation requires this case, for the most part, to be conducted behind closed doors. The ALC is concerned, as well it should be, that these legislative provisions offend the principles of open justice, because proceedings other than in an open court “contradicts a fundamental attribute of a fair trial”.
Moreover, it is a basic rule of the common law which underpins the rule of law, that the administration of justice should not take place behind closed doors but must take place in an open court. The ALC pressed its concerns to the National Security Information (Criminal and Civil Proceedings) Act 2004 calling for a recalibration of “the balance between the requirements of open justice and protecting the community against the disclosure of information that may genuinely prejudice national security”. So far, as the errant student of its own laws, the government is lagging on this first listed Australian value.
Let’s turn to parliamentary democracy. The government’s sly changes do not sit well with parliamentary democracy. Indeed, the return of the valuees tests instils a deep sense of foreboding. In 2017, the Senate Legal and Constitutional and Legal Affairs Committee noted that “legislation by media release” has become a fact of life. Moreover, the Committee found that the proposed Bill to change the test did not define the meaning of “competent English” (a change to the current basic English requirement). Moreover, the Minister was cloaked with far reaching discretion to make a determination on whether a person has integrated into the Australian community. The Minister could wake to making a new determination on the content of an Australian values statement and the requirement’s to meet it.
Like a thief in the COVID night, without public scrutiny and despite the earlier Bill lapsing, the government has stealthily returned Australian values testing.
Like a thief in the COVID night, without public scrutiny and despite the earlier Bill lapsing, the government has stealthily returned Australian values testing. In the process of doing so, it has marked itself as a fail on another Australian value, a commitment to accountability as a central pillar of parliamentary democracy.
How about a pass on equality of opportunity and a fair go? If one focuses on gender equality, a core aspect of my work in the 50/50 by 2030 Foundation, serious doubts trouble the government’s commitment to this Australian value. One doubt centres on the narrow band of opinion allowed a voice when the government deliberates on law and policy. Hunting with this doubt is the extent government is both interested and attuned to differential impact of its decisions and the uneven benefits and costs uncovered by individual cases and circumstances. A listening and caring ear to these differentials is a key component to achieving true equality of opportunity. The COVID pandemic has brought in its wake many structural and institutional barriers that are undermining of the government’s commitment to this Australian value.
Earlier commentary on the government’s recent budget, identified how under current frameworks, those developing policy do not systematically contemplate different policy impacts by gender. Assessing the scale of the crisis for women, is the 0.036% of the total budget spend to flow specifically to women really telling Australian women that proclaimed “we’re all in this together”. Gender, combined with race, class and migrant background all play into how well Australia is really doing when it comes to equality of opportunity and a fair go.
Returning to Australian citizenship itself – the test is about admission to the Australian nation. Yet the flip side is how well that statue is protected or, put another way, how easily can one’s citizenship be taken away? In 2015, Parliament passed the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 which created three ways to automatically strip dual citizens of their Australian citizenship if they engage in terrorist-related activity. In 2018 and 2019, the government introduced further citizenship-stripping Bills that were fiercely contested to ensure they have adequate rights of merits review and judicial review.
The 2018 Bill lapsed but the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 was passed earlier this month giving the Minister further considerable discretionary power to strip a dual citizen of his or her citizenship and giving the affected person limited rights of review. This takes us back finally, to the equality of all people before the law. In this very Act, which determines who can become a citizen, the government has stated that two Australians can and will be treated differently for the very same actions undertaken on the basis of one being a dual citizen and the other not. While this affirms on the one hand Australia’s commitment to preventing people becoming stateless, it does not affirm the equality of all people before the law.
In short, these are testing times and the government is failing them. It is the government and Australia’s solemn responsibility to begin ticking the testable boxes of its own citizenship test. It should start by living up to the new part of the test – Australian values – and it should do so by first repealing it. These values are best inculcated by the example of a government with a true, demonstrable commitment to the rule of law, parliamentary democracy, freedom of speech, freedom of association, freedom of religion, equality of all people before the law, and equality of opportunity and a fair go.’
This article first appeared in The Canberra Times.
Kim Rubenstein is a Professor in the Faculty of Business Government and Law at the University of Canberra, which has supported the production of the new podcast series It’s not just the vibe, It’s the Constitution. She is a Fellow of the Australian Academy of Law and the Academy of Social Sciences in Australia.