Australia: Peter Dutton concedes he will need to rethink English test in citizenship overhaul| The Guardian

Proposed bill continues to be in trouble:

The immigration minister, Peter Dutton, has admitted he will need to overhaul the English-language test in the government’s citizenship package to have any hope of getting the legislation through the parliament.

But the critical parliamentary powerbroker on the controversial citizenship overhaul, the Nick Xenophon Team, is signalling the rework will need to be more broad-ranging than just the language test.

“There are so many components of this whole package that are a problem,” the NXT senator Stirling Griff told Guardian Australia on Tuesday. “Our position hasn’t changed at all.

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“Peter Dutton needs to go back to the drawing board.”

Last week, the Senate gave Dutton four sitting days to put his controversial citizenship bill up for debate, otherwise it would be struck from the notice paper.

The procedural pincer movement in the parliament came less than a week after the Nick Xenophon Team derailed Dutton’s attempt to enact the citizenship package, saying it could not support it in its current form.

The government does not currently have the numbers to get its citizenship overhaul – which has been badged politically as a national security measure – through the parliament.

It has been unclear how the government would respond to the current parliamentary deadlock – whether it would pull the whole package, or negotiate – but Dutton on Tuesday signalled for the first time he was prepared to negotiate.

Asked whether he was prepared to overhaul the English-language test, which currently requires a university standard of language fluency, Dutton told Sky News: “Of course we are flexible.”

The minister said he was talking with Nick Xenophon in an effort to reach a compromise. Dutton described the dialogue with the NXT as “constructive”.

The government needs the NXT bloc because both Labor and the Greens are opposed to the package.

Dutton said the government’s objective was to ensure would-be citizens had a functional level of English, and improved their language proficiency over time.

The citizenship changes in their current form would increase the waiting times for permanent residents before they could apply for citizenship (from one year to four years) and force new applicants to complete a tougher English-language test (and achieve a pass mark of 75%) equivalent to level 6 of the international English language testing system (IELTS).

The package also gives Dutton significant power to overrule decisions on citizenship applications by the Administrative Appeals Tribunal (AAT).

As well as raising broad-ranging concerns about the practical implications of the package, the NXT has expressed particular objection to the enhanced ministerial powers over tribunal decisions.

Griff said on Tuesday the government needed to go back to the drawing board and consult more widely about the implications of the changes.

Source: Peter Dutton concedes he will need to rethink English test in citizenship overhaul | Australia news | The Guardian

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The New Voice of Indigenous Australia: Malik – The New York Times

Interesting reflections on the Australian Indigenous peoples debate and parallels with the Canadian one (not explored by Malik):

The debate about Indigenous peoples seems — at least to me, an outsider — to take place on only two registers: on one hand, silence; on the other, a romanticization of Indigenous life.

It may seem odd to speak of silence in a nation where the issue of Indigenous rights is so prominent in public life. But silence can come in many forms. The affirmation of Indigenous ownership at public events has become little more than a ritual incantation that allows white Australians to assuage guilt without taking the action necessary to challenge racist marginalization.

Equally troubling is the romanticization. It has become the accepted truth that Indigenous peoples have a culture stretching back 65,000 years. Humans have been on the continent for that long, but no culture extends over such a time span. Today’s Indigenous Australians no more have the same relationship to the spiritual tradition of Dreamtime stories as did those first inhabitants than modern Greeks relate to “The Iliad” in the way their ancient forebears did.

The idea of an unbroken, unchanged culture has a flip side that has always animated racists. It was once used to portray Indigenous Australians, and other nonwhite races, as primitive and incapable of development. Likewise with another common claim: that Indigenous people have a special attachment to the land and a unique form of ecological wisdom. This, too, draws on an old racist trope, a reworking of the “noble savage” myth. The fact that in contemporary debates such ideas are deployed in support, rather than denial, of Indigenous rights does not make them more palatable.

When I raised these issues with Australian academics and activists, many suggested that as someone with a European perspective, I did not grasp the nuances of the Australian debate. That may be true. But many of the issues are global, not local. From America to South Africa, from India to France, questions about the legacies of colonialism, the authenticity of cultural traditions and the meaning of democracy in pluralist societies dominate public debate.

It was fascinating to read an essay by the Indigenous activist Noel Pearson, one of the guiding lights of the Uluru Statement, in which he references the work of Edmund Burke and Johann Herder to buttress his arguments: two 18th-century European philosophers, the first a founder of modern conservatism, the second of the Romantic view of culture. Both are figures whose ideas are central to European debates about multiculturalism, tradition and recognition — common threads that run through the discussions in different continents.

I was struck, also, by the fact that the Uluru delegates had not been elected by their communities but invited by the organizers. In Europe, the demand for recognition for minority communities has often helped empower community leaders at the expense of the communities themselves. It would be a tragedy if this were to happen in Australia, too.

A Test of Australian Identity: Waleed Aly – The New York Times

The best piece I have seen to date on the Australian political “crisis” over dual citizenship and the obsolescent and overly broad nature of the prohibition:

It will be a fascinating legal test, boiling down to whether the Constitution is meant to cover cases in which people say they had no idea they were citizens of another country. On that point, the wording isn’t encouraging. The Constitution expressly prohibits anyone from Parliament who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power.”

But legal intricacies aside, it’s the talk of “subjects” that is most telling. As it stands, Section 44 of the Constitution is beginning to look like something of a relic, a monument to the 19th century that created it, and a pointer to just how profoundly Australia has changed.

Its animating idea is one of loyalty: that Australian parliamentarians must be shorn of any “allegiance, obedience or adherence to a foreign power.” But this was written at a time when Australian citizenship didn’t properly exist.

Australians were subjects of the British Empire, and the thought of simultaneously being subjects of another country would have been seen as a conflict. But the British Empire is no more, and since the end of World War II, this particular British outpost has become a thoroughly immigrant nation. That’s a rapid transition for a nation that had a “White Australia” policy until the early 1970s.

Today, nearly half of Australians were either born overseas or have at least one parent who was. In this context, dual citizenship is part of the grammar of Australian society. That’s why even the most avowedly nationalistic parties, like One Nation, have been caught up in this mess. It doesn’t matter how exclusively Australian you say you are, chances are you’ve come from somewhere else not very long ago.

That’s more than a mere demographic change. It’s a change in the notion of Australian identity.

We could say there are two ideal (and simplified) kinds of nationhood: one anchored firmly in ethnicity and culture and another built on a civil creed. Germany is frequently cited as an example of the former (it shed its citizenship laws requiring a blood connection to the country only in 2000). America, with its civil religion of individual liberty, is the classic example of the latter. Australia’s story is of a gradual, if incomplete, transition from the European to the American model.

It began as a self-consciously derivative nation, drawing its sense of self overwhelmingly from the Empire, and became a cosmopolitan New World society. Any attempt to maintain an exclusive ethnic sense of Australianness would inevitably fall apart under those conditions. There is nationalist resistance to this, but Australian identity has now become something that exists in combination with any number of other cultural identities.

This leaves Australia in a conundrum. To exclude dual citizens from Australian politics is to exclude contemporary Australia itself, and yet this is what Australia’s Constitution demands.

In the foreseeable future, this probably means a wave of political candidates renouncing their foreign citizenship. But at no stage are anyone’s loyalties likely to be altered.

Modern Australia has multiple, simultaneous identities, whether expressed in government documents or not. We will remain a nation of people with emotional attachments to foreign lands of which we’re not citizens, and of citizenships of lands to which we feel no attachment. In this instance, it’s not our dual citizens but our Constitution that’s un-Australian. Funny, that.

Australian security agencies may not have approved tighter citizenship laws | The Guardian

Not going well (with good reason):

Immigration officials have been unable to say whether they gained security agency backing for tighter citizenship laws before Peter Dutton announced the controversial overhaul.

The officials told a Senate inquiry in Brisbane they could not confirm whether the Australian Security Intelligence Organisation (Asio) or the Australian federal police raised a need for the proposed changes, or were consulted specifically about them before they were unveiled in April.

The Labor senator Murray Watt seized on the testimony on Thursday as “evidence that shows very clearly there is no national security case for a tightening of the citizenship laws”.

Watt told the Guardian: “Peter Dutton’s own department was unable to produce any evidence that any national security agency had asked for these changes.”

The department also confirmed it knew before the announcement that people who completed the government-funded Adult Migrant English Program (Amep) would still fall short of the university-level English required under the new legislation.

“I think it’s bizarre that we have a government-funded program to help train people in English that will not even be able to provide the level required from the government’s own citizenship test,” Watt said.

David Wilden, a first assistant secretary at the Department of Immigration and Border Protection, told the inquiry he could not “give a definitive answer” to whether Asio gave any advice that tougher citizenship rules were needed to protect national security.

“I’d have to check, I don’t think we went to a specific piece of advice on this bill,” he said, adding the department had ongoing dialogues with the intelligence agency.

Linda Geddes, an acting secretary of the department, said it was the same case with the AFP.

When Watts asked whether the department had consulted either agency specifically on the bill, Wilden said he was unsure and would try to find an answer before the deadline for committee submissions on Friday.

The final day of hearings by the Senate legal and constitutional affairs legislation committee came after the inquiry having received more than 10,000 submissions against Dutton’s proposal.

Only two were in favour: from Dutton’s own department, and the Australian Monarchist League. The committee is due to report next Tuesday.

The immigration officials at the inquiry said the department had considered the fact that most people completing Amep would be at level 4 or 4.5 under the international English-language testing system (Ielts), short of the level 6 required for citizenship.

Wilden said these people would need to show “self-agency” and further their own English study to meet the new mark.

The Labor frontbencher Tony Burke told the Guardian he was “now confident the bill won’t be passed in its current form but I’m not yet confident” it would be rejected in the Senate, as Labor hoped.

When Watt read out a section of the Ielts test relating to Herodotus’ 480BC account of calisthenics at the battle of Thermopylae, “the whole room fell about laughing at just how ridiculous the level of language required was”, Burke said.

“People laughed, and then they reflected on it, and then the frustration started to take over the room when people realised exactly what that would mean in their own instances,” he said. “There was a despondency of people saying, if that’s the new rule, I’ll never become a citizen.”

Source: Australian security agencies may not have approved tighter citizenship laws | Australia news | The Guardian

Australia: Coalition warned it has ‘uphill battle’ in high court over citizenship and postal vote | The Guardian

As noted, only reasonable solution in an immigration-based country is to repeal section 44 and allow dual citizenship:

The government faces an “uphill battle” in major high court cases dealing with the same-sex marriage postal survey and the eligibility of seven parliamentarians on the current reading of the law, George Williams has warned.

In a speech to the National Press Club on Wednesday, the constitutional law expert and University of NSW professor accused the government of “a surprising constitutional adventurism” in testing the limits of its power and relying on a “creative, quite liberal and generous reading of those powers” by the court.

In October the high court will hear the cases challenging the eligibility of the deputy prime minister, Barnaby Joyce, the Nationals senator Matt Canavan, the resigned Greens senators Scott Ludlam and Larissa Waters, and the One Nation senator Malcolm Roberts. Nick Xenophon and Fiona Nash will also be referred.

Williams said that “on the current law it is difficult to see … that any of the seven parliamentarians who will face the high court are likely to survive that challenge”.

“It is hard to see any of them have taken the reasonable steps that the high court requires to divest themselves of foreign citizenship.”

Williams suggested Labor’s Katy Gallagher could also be in difficulty, depending on the high court ruling, and likened citizenship by descent to a “Pandora’s box” that could claim up to “20 or more parliamentarians”.

Section 44 of the constitution disqualifies anyone who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” from sitting in parliament.

The Turnbull government insists it has strong legal advice from the solicitor general that the better view of the law is that some element of intention or acquiescence to foreign citizenship is required.

Williams warned that view was based on William Dean’s dissent in the case of Sykes v Cleary and it was “exceedingly rare” for a later court to adopt a dissenting view.

Another possible reading – to exclude only those members who have foreign citizenship by birth – had no support in the constitution, he said.

Williams said Joyce’s and the Greens’ eligibility problems “speak less of a constitutional problem … and more of complacency and poor vetting” by political parties. He cited a simple check he had performed online to confirm a person in Joyce’s situation was a New Zealand citizen by descent.

“In this case it is hard to see why the high court would fashion an exemption when candidates have been warned of this problem and when the information is very easy to obtain through a simple check on the internet.”

Williams described Malcolm Turnbull’s confidence that the high court will find Joyce eligible as “misplaced”.

Williams said section 44 was out of date, arguing it was “hardly consistent with our sovereignty, our stability as a democracy” to allow eligibility for parliament to be determined by other countries’ laws.

Source: Coalition warned it has ‘uphill battle’ in high court over citizenship and postal vote | Australia news | The Guardian

Citizenship changes are risky, says Australian Human Rights Commission | The Guardian

Valid reservations, with clear impact on some groups:

The Australian Human Rights Commission has warned the Turnbull government to tread carefully with its citizenship changes, saying the Coalition needs to be mindful of a perception Australia is departing from a non-discriminatory immigration policy.

Members of the commission, including the new president, Rosalind Croucher, appeared before a Senate committee on Wednesday to outline concerns they had about the controversial citizenship overhaul being proposed by the immigration minister, Peter Dutton.

The race discrimination commissioner, Tim Soutphommasane, told the committee Australia was a remarkable international success story when it came to the integration of immigrants, and he said if changes were contemplated to the citizenship regime, the case needed to be “compelling”.

He said there was a danger of the government sending a negative signal with onerous new requirements, including an English test requiring university-level language proficiency, which could deter people from taking out Australian citizenship.

“Care must be taken to ensure the wrong signal isn’t sent,” Soutphommasane told the committee.

The race discrimination commissioner also argued the task of managing civic integration was not one that should be confined to aspiring Australian citizens. He suggested there was also scope for improving the civic literacy of Australian-born citizens.

The Turnbull government proposal, which has been badged a national security measure, makes a number of changes to the current citizenship regime.

The legislation extends permanent residency requirements from one year to “at least four years” before someone can apply for citizenship and requires most applicants to provide evidence of “competent” English-language proficiency before they can become a citizen.

It would also give the immigration minister power to overrule decisions on citizenship applications by the administrative appeals tribunal if the minister didn’t think the decisions were in the national interest, and also give the minister power to decide whether or not the applicant had integrated into the Australian community.

A written submission from the AHRC to the Senate committee examining the legislation recommends that the government’s proposal not be passed in its current form.

It says the government proposal will make it harder for a number of vulnerable groups to become Australian citizens, including children born in Australia to asylum seeker or refugee parents, even after those children have been lawfully in Australia for up to a decade.

“These proposed sections would deny citizenship by birth to certain children born in Australia solely based on the immigration status of the child’s parents,” the submission says.

“The child may have held valid visas and been lawfully present in Australia for his or her entire life, but will be denied citizenship under the 10-year rule because his or her parents arrived in Australia without a valid visa”.

As well as raising concerns about the impact of the citizenship overhaul on children, and people with disabilities, the submission also says the harder English language test will have a “considerable” impact.

The submission notes many Australia-born citizens “would not possess a written or spoken command of English equivalent to this standard”.

It is unclear whether the government’s overhaul will pass the parliament. Labor has raised substantial objections, and the Nick Xenophon Team has also raised concerns about the impact of particular measures.

Source: Citizenship changes are risky, says Australian Human Rights Commission | Australia news | The Guardian

Australian deputy prime minister under citizenship cloud – ABC News

A more sensible approach would be to revise the law given the number of representatives from all parties that have been found in violation despite having lived in Australia for all their lives or close to it and not having meaningful connections to other countries:

Australia’s deputy prime minister on Monday became the latest lawmaker to reveal he might have breached a constitutional prohibition on dual citizens becoming lawmakers, after the New Zealand government declared he was a kiwi.

Barnaby Joyce told Parliament he would become the fifth lawmaker to be referred to the High Court since last month for scrutiny over whether he was entitled to remain in Parliament.

Joyce, who leads the conservative Nationals minor coalition party, said he had legal advice that he would be cleared by the court and would not stand down from Cabinet.

The 116-year-old section of the constitution that bans dual nationals is taking an extraordinary toll on the finely balanced Parliament elected in July last year. Before the careers of five came under a cloud since July, only two elected lawmakers were caught. Both were elected in the late 1990s and were quickly disqualified by the High Court, the first over New Zealand citizenship and the second for being British.

Critics of the constitutional rule argue it no longer suits the modern multicultural Australia in which almost half the population was born overseas or has at least one overseas-born parent.

If Joyce was disqualified, Prime Minister Malcolm Turnbull’s center-right government could lose its single-seat majority in the House of Representatives where parties need a majority to govern. The other four lawmakers are senators who if disqualified would be replaced by members of their own parties.

Joyce said he was notified by the New Zealand High Commission on Thursday that the New Zealand government had discovered “I may be a citizen by descent of New Zealand.”

“Needless to say, I was shocked to receive this information,” said Joyce, whose father migrated from New Zealand in 1947. Joyce was born in Australia in 1967.

New Zealand Prime Minister Bill English said he was told last week that Joyce was a New Zealand citizen.

“Unwittingly or not, he’s (Joyce) a New Zealand citizen and then it’s a matter for the Australian system to decide how Australian law applies in his case and how they deal with the issue,” English said.

The Australian opposition demanded that the government refuse to accept Joyce’s vote in Parliament and dump him from Cabinet until the court resolved his status. But Turnbull said he was confident that Joyce was eligible to sit in Parliament.

“We did not refer this matter to the court because of any doubt about the Member for New England’s (Joyce’s) position, but because of the need, plainly in the public interest, to give the court the opportunity to clarify the operation of the section (of the constitution) so important to the operation of our Parliament,” Turnbull told Parliament.

Source: Australian deputy prime minister under citizenship cloud – ABC News

Australia – Citizenship crisis: MP Julia Banks denies being a Greek citizen amid speculation over her heritage

Given the numbers involved, appears that a review of the current policy may be warranted:

The fallout over MPs’ citizenship rights in foreign countries has widened to engulf more than 20 federal politicians, placing Prime Minister Malcolm Turnbull’s majority government under threat.

Investigations are today underway to determine whether Victorian Liberal MP Julia Banks holds Greek citizenship [later confirmed that she is not – see Banks isn’t Greek, Liberals avoid crisis).

The liberal backbencher was born in Melbourne to parents of Greek heritage.

But she said she has never taken up Greek citizenship, as speculation swirls around her heritage status.

Ms Banks is added to a list of twenty-one other members of the House of Representatives who have spoken of their migrant bloodlines – many during their maiden speeches – The Australian reported.

They include frontbenchers from both the Coalition and Labor such as Deputy Prime Minister Barnaby Joyce, Trade Minister Steven Ciobo, Liberal MP Julia Banks, deputy Labor leader Tanya Pilbersek and Labor MP Steve Georganas.

The resignation from the cabinet of Nationals senator Matt Canavan, after it was revealed he had gained Italian citizenship without being born in, or visiting the country, has shown how vulnerable MPs who could be entitled to foreign citizenship are.

Now MPs such as Joyce, whose father was born in New Zealand and Ms Banks, whose father was born in Greece, face scrutiny over their family heritage.

With speculation over Ms Banks’ Greek heritage, the federal government is bracing for wider political ramifications.

The Coalition holds a one-seat majority in the House of Representatives which bans anyone who is a “citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”.

The High Court could be asked to determine if Ms Banks’ entitlement to Greek citizenship makes her ineligible, and to rule on whether she should have renounced any citizenship entitlements before nominating.

A disqualification of a member in the lower house would likely lead to a by-election and put a big cloud over the future of the government.

Last night, One Nation Senator Malcolm Roberts became the latest federal politician to become embroiled in the citizenship furore.

He said he did not receive confirmation he had renounced British citizenship until months after the federal election, but is confident of surviving any challenge to his eligibility.

Senator Roberts said he wrote to British officials on May 1 last year asking if he was a UK citizen, given he was born to a Welsh father in India.

He had no reason to believe he was British, but thought it best to double-check while filling out a nomination form for the Senate.

Five weeks later he hadn’t received a response, so wrote again on June 6 – three days before nominations closed – saying that if he had British citizenship, he fully renounced it.

“I’ve taken all steps that I reasonably believe necessary,” Senator Roberts told Sky News.

Source: Citizenship crisis: MP Julia Banks denies being a Greek citizen amid speculation over her heritage

Australia: Immigration as a Security Threat – The New York Times

Waleed Ali on the increasing shift in Australia:

But the idea of a home affairs minister focused on national security makes sense only if we assume immigration is entirely a security problem. This points to the true ideological import of this newly formed department.

Australia began this century with a Department for Immigration and Multicultural Affairs. Back then, the department’s slogan was “Enriching Australia through Migration.” Just over a decade ago it dropped the multiculturalism portfolio entirely, creating instead a Department of Immigration and Citizenship. Now it’s to be rolled into a national security department. Thus, we can chart Australia’s public conception of migration from being a celebrated aspect of its multicultural character to a civic idea whose highest ultimate expression is citizenship to a threat to be managed.

That certainly chimes with Australia’s established rhetoric on asylum seekers, which has dominated public expression of our immigration program. And it might suit the increasingly nationalist belligerence of our age. But it does not suit Mr. Turnbull, a man who until recently was fond of celebrating Australia as “the most successful multicultural society in the world”; a man who only a few weeks ago was declaring that his party was established to be liberal, in contradistinction to conservative.

When the story of the Turnbull government is written, he will have been the prime minister who finally debased immigration in the Australian political imagination. The image last week of the prime minister draped awkwardly in military power will surely accompany that chapter. And those gas masks won’t look much like liberalism. Most likely they won’t look much like success either.

Australia: Matt Canavan quits cabinet over Italian dual citizenship | The Guardian

Yet another dual citizen discovered in Australia. Like the other cases, the member in question wasn’t aware of his other nationality.

It is another example of the problem with C-24’s revocation provision for dual nationals convicted of terrorism (repealed under C-6), as it would have also applied to those with no knowledge of their dual citizenship or their potential to acquire:

The resources minister Matt Canavan has quit the cabinet because he is is a dual citizen of Italy.

Canavan’s resignation on Tuesday night follows the recent resignation of two Greens senators, Larissa Waters and Scott Ludlam, because of dual citizenships – a controversy that has triggered questions about the eligibility of many other Australian parliamentarians.

Canavan told reporters on Tuesday night his mother had applied for Italian citizenship on his behalf without his knowledge or consent when he was 25 years old, in January 2007.

He said he had “no suspicion” he was in possession of a dual citizenship until last week, when his mother “raised the possibility”. The Italian embassy subsequently confirmed he was a citizen of the country.

“I was not born in Italy, I have never been to Italy and to my knoweldge I have never set foot inside the Italian consulate or embassy,” Canavan said.

“I knew my mother had become an Australian citizen, but I had no knowledge that I myself had become an Italian citizen, nor did I request to become an Italian citizen”.

The attorney general, George Brandis, said preliminary legal advice to the commonwealth suggested there had been no breach of section 44 of the constitution in Canavan’s case.

Brandis told reporters given Canavan had no knowledge about his status as a dual citizen, and the “legal uncertainty” surrounding the issue, the government would refer the issue to the high court for deliberation.

Australia’s constitution bars dual citizens from eligibility for elected office, unless they can show they have taken reasonable steps to sever foreign ties.

Canavan said he was seeking advice about whether the registration of his Italian citizenship by his mother was valid under Italian law.

He said on the basis of the government’s legal advice, he would not quit politics or the parliament before the high court’s deliberations.

Source: Matt Canavan quits cabinet over Italian dual citizenship | Australia news | The Guardian