Minister to get unprecedented power if Australia’s new citizenship bill is passed



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It’s not clear how proposed extensive powers for the immigration minister strengthen the integrity of Australian citizenship.
AAP/Lukas Coch

Sangeetha Pillai, UNSW

The government has introduced legislation to reform Australia’s citizenship regime, under the guise of strengthening the integrity of citizenship. The bill, if passed in its current form, confers sweeping new powers on the immigration minister.

Access to Australian citizenship has always involved some executive discretion. But if the bill is passed, the minister will gain unprecedented control over the criteria governing citizenship acquisition, the time it takes for a person to gain citizenship after their application has been approved, and even the circumstances in which citizenship can be revoked.

The minister will also be able to override certain citizenship decisions made by the Administrative Appeals Tribunal (AAT).

Powers to control citizenship acquisition

The bill gives the minister a range of new powers that relate to various aspects of the citizenship acquisition process.

As the government’s discussion paper on the proposed changes indicated, the bill creates several new requirements for citizenship applicants. Aspiring citizens will be required to demonstrate “competent English”, and show they have “integrated into the Australian community”.

The bill gives the minister the power to create regulations determining what these requirements mean. It also allows the minister to determine an Australian Values Statement, which applicants will be required to sign and lodge with their citizenship application.

Where a person’s application for citizenship has been approved, the bill gives the minister a new power to cancel this approval, if he or she determines it should no longer be granted – for any reason.

While determining whether to exercise this cancellation power, the minister may block a person from acquiring citizenship for up to two years by barring them from making the mandatory citizenship pledge.

Power to override AAT decisions

As foreshadowed, the bill also seeks to give the minister the power to override certain citizenship decisions made by the AAT.

The AAT is an independent administrative tribunal that reviews executive decisions on their merits. A person whose application for citizenship is rejected may apply to the AAT to have this decision reviewed.

The bill enables the minister to personally override AAT decisions in particular circumstances. This power applies where it has reviewed a departmental decision to refuse citizenship, provided a ground for refusal was that the applicant was not of good character, or that their identity could not be determined. The minister must also be satisfied that overriding the AAT is in the public interest.

Additionally, the bill removes the right for an applicant to appeal to the AAT where the minister decides to refuse them citizenship, and states that this is in the public interest.

The bill’s explanatory memorandum stresses that ministerial decisions to override the AAT can be reviewed by the courts. However, this is likely to be of limited utility. This is because courts typically regard the “public interest” as a matter for ministerial determination.

Immigration Minister Peter Dutton has said the proposed power to override AAT decisions merely aligns the minister’s citizenship powers with powers that exist in relation to visa cancellations.

Current law allows the minister to override certain AAT visa decisions where this is in the national interest, and where the character of the visa holder is at issue. However, these existing override powers weaken – rather than strengthen – the case for the new powers the bill proposes.

To apply for citizenship, a person must have held a visa for several years. Throughout this time, the minister has extensive power to revoke that visa and remove the holder from Australia if they fail to meet character requirements.

Given this, the need for sweeping new powers is unclear.

Power to revoke citizenship

One of the bill’s most insidious features is a proposal to allow the minister to revoke a person’s citizenship, provided they are satisfied the person obtained ministerial approval for citizenship as a result of fraud or misrepresentation. The minister must also be satisfied it would be contrary to the public interest for the person to remain an Australian citizen.

Current citizenship laws allow the minister to revoke citizenship where it is acquired by fraud. However, before this can be done, the person or a third party must be convicted by a court of migration fraud.

If the bill is passed, such a conviction will no longer be necessary. The minister will have the power to determine when fraud or misrepresentation has occurred.

The bill does not spell out the criteria that will be used to make such decisions. But, it does specify that misrepresentation includes “concealing material circumstances”. This absence of criteria creates uncertainty about how the minister will make decisions. It also decreases the prospect of meaningful judicial review.

In particular, it is not clear how the expanded revocation powers interact with the bill’s other provisions.

For example, take a situation where the minister believes a person who has been granted citizenship is not demonstrating the values or integration they were assessed for during the application process. Could the minister revoke citizenship on the basis that the person, when applying for citizenship, misrepresented their values or commitment to integration?

If so, this would create a dangerous back-door route to citizenship revocation for people whose conduct falls far short of the current thresholds that parliament has set.

What’s next?

It is not clear how these extensive ministerial powers strengthen the integrity of Australian citizenship.

The ConversationQuite the contrary, creating broad executive powers with minimal review undermines the rule of law. This, ironically, is said to be one of the fundamental values underpinning Australian citizenship.

Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW

This article was originally published on The Conversation. Read the original article.

The new data retention law seriously invades our privacy – and it’s time we took action



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Then government’s new law enabling the collection of metadata raises serious privacy concerns.
shutterstock

Uri Gal, University of Sydney

Over the past few months, Australians’ civil rights have come under attack.

In April, the government’s data retention law came into effect. The law requires telecommunications companies to store customer metadata for at least two years. Metadata from our phone calls, text messages, emails, and internet activity is now tracked by the government and accessible by intelligence and law enforcement agencies.

Ironically, the law came into effect only a few weeks before Australia marked Privacy Awareness Week. Alarmingly, it is part of a broad trend of eroding civil rights in Western democracies, most noticeably evident by the passage of the Investigatory Powers Act in the UK, and the decision to repeal the Internet Privacy Law in the US.

Why does it matter?

Australia’s data retention law is one of the most comprehensive and intrusive data collection schemes in the western world. There are several reasons why Australians should challenge this law.

First, it undermines the democratic principles on which Australia was founded. It gravely harms individuals’ right to privacy, anonymity, and protection from having their personal information collected.

The Australian Privacy Principles define limited conditions under which the collection of personal information is permissible. It says personal information must be collected by “fair” means.

Despite a recent ruling by the Federal Court, which determined that our metadata does not constitute “personal information”, we should consider whether sweeping collection of all of Australian citizenry’s metadata is consistent with our right to privacy.

Second, metadata – data about data – can be highly revealing and provide a comprehensive depiction of our daily activities, communications and movements.

As detailed here, metadata is broad in scope and can tell more about us than the actual content of our communications. Therefore, claims that the data retention law does not seriously compromise our privacy should be considered as naïve, ill-informed, or dishonest.

Third, the law is justified by the need to protect Australians from terrorist acts. However, despite the government’s warnings, the risk of getting hurt in a terrorist attack in Australia has been historically, and is today, extremely low.

To date, the government has not presented any concrete empirical evidence to indicate that this risk has substantially changed. Democracies such as France, Germany and Israel – which face more severe terrorist threats than Australia – have not legalised mass data collection and instead rely on more targeted means to combat terrorism that do not jeopardise their democratic foundations.

Fourth, the data retention law is unlikely to achieve its stated objective and thwart serious terrorist activities. There are a range of widely-accessible technologies that can be used to circumvent the government’s surveillance regime. Some of them have previously been outlined by the now-prime minister, Malcolm Turnbull.

Therefore, in addition to damaging our civil rights, the law’s second lasting legacy is likely to be its contribution to increasing the budgetary debt by approximately A$740 million over the next ten years.

How can the law be challenged?

There are several things we can do to challenge the law. For example, there are technologies that we can start using today to increase our online privacy.

A full review of all available options is beyond the scope of this article, but here are three effective ones.

  1. Virtual private networks (VPNs) can hide browsing information from internet service providers. Aptly, April 13, the day the data retention law came into effect, has been declared the Australian “get a VPN day”.

  2. Tor – The Onion Router is free software that can help protect the anonymity of its users and conceal their internet activity from surveillance and analysis.

  3. Encrypted messaging applications – unprotected applications can be easily tracked. Consequently, applications such as Signal and Telegram that offer data encryption solutions have been growing in popularity.

Australian citizens have the privilege of electing their representatives. An effective way to oppose continuing state surveillance is to vote for candidates whose views truly reflect the democratic principles that underpin modern Australian society.

The Australian public needs to have an honest, critical and open debate about the law and its social and ethical ramifications. The absence of such a debate is dangerous. The institutional accumulation of power is a slippery slope – once gained, power is not easily given up by institutions.

And the political climate in Australia is ripe for further deterioration of civil rights, as evident in the government’s continued efforts to increase its regulation of the internet. Therefore, it is important to sound a clear and public voice that opposes such steps.

Finally, we need to call out our elected representatives when they make logically muddled claims. In a speech to parliament this week Tuesday, Turnbull said:

The rights and protections of the vast overwhelming majority of Australians must outweigh the rights of those who will do them harm.

The ConversationThe data retention law is a distortion of the logic embedded in this statement because it indiscriminately targets all Australians. We must not allow the pernicious intent of a handful of terrorists to be used as an excuse to harm the rights of all Australians and change the fabric of our society.

Uri Gal, Associate Professor in Business Information Systems, University of Sydney

This article was originally published on The Conversation. Read the original article.

Turnbull announces schools funding and a new Gonski review


Michelle Grattan, University of Canberra

The Turnbull government is seeking to seize the political initiative on schools, with a substantial funding injection and the appointment of David Gonski – who delivered the 2011 landmark schools report – to chair a “Gonski 2.0” review on how to improve the results of Australian students. The Conversation

A day after announcing university students will pay more for their education, Turnbull unveiled an extra A$18.6 billion in funding to Australian schools over the next decade, including more than $2.2 billion in this budget for the first four years.

Turnbull said that, under the government’s plan, “every school will receive Commonwealth funding on a genuine needs basis”.

At a joint news conference with Turnbull and Education Minister Simon Birmingham, Gonski – who is a personal friend of Turnbull’s – said he was very pleased the government accepted the fundamental recommendations of the 2011 report, particularly the needs basis. The proposed injection of money was “substantial”, he said.

Turnbull and Birmingham said the plan would ensure all schools and states moved to an equal Commonwealth share of the Gonski-recommended Schooling Resource Standard in a decade. The federal government would meet a 20% share of the standard for government schools, up from 17% this year, and 80% for non-government schools (currently 77%).

Birmingham said 24 non-government schools stood to lose money (there would be some transition money for a couple of these schools with a large number of students with special needs). They are among some 353 presently over-funded schools which will be worse-off under the plan than they would otherwise have been. Australia has more than 9,000 schools in total across the government, Catholic and independent sectors.

Pete Goss, the school education program director at the Grattan Institute, said: “We still need to understand all the details but the overall shape of the package is very encouraging.

“The minister has set a clear 10-year goal of getting every school funded consistently by the Commonwealth. The additional funding will help ease that transition.

“Some schools that have been on a great wicket for a long time will lose out – and so they should. This is a gutsy call and it is the right call.”

Goss said he understood there had been “an internal debate” in the government to arrive at this plan.

The announcement is a substantial turnaround for the government, which had previously planned more modest funding, and refused to embrace the final two years of Gonski.

But Turnbull was in full Gonski mode on Tuesday: “This reform will finally deliver on David Gonski’s vision, six years ago, after his landmark review of Australian school education,” he said.

Turnbull is trying to take some of the shine off Labor’s political advantage on education which, with health, was at the heart of its 2016 election campaign. Next week’s budget will attempt to neutralise some of the Coalition’s problems on health, which saw Labor run its “Mediscare” at the election.

Birmingham said that over the next four years there would be growth in Commonwealth funding of some 4.2% per student across Australia – “importantly, most of it geared into the government sector where need is greater and the gap to close in terms of Commonwealth share is larger”.

He said the government would legislate the decade-long program, and impose conditions to ensure states did not lower their funding. “We will be expecting states to at least maintain their real funding,” he said. “This is about real extra money to help Australian schools and students.”

What Turnbull dubbed the “Gonski 2.0” review will recommend on “the most effective teaching and learning strategies to reverse declining results, and seek to raise the performance of schools and students”.

It will advise on how the extra Commonwealth funding “should be used by Australian schools to improve student achievement and school performance”, Turnbull and Birmingham said in a statement.

Another member of the original Gonski panel, Ken Boston, will also be on the review, which will report to Turnbull in December.

The government says its new arrangements will replace the patchwork of agreements left by Labor.

But Labor’s education spokeswoman Tanya Plibersek said this was “a smoke and mirrors, pea and thimble effort to hide the fact that instead of cutting $30 billion from schools over the decade, this government will cut $22 billion from schools over the decade”.

“The big picture here is that in the 2014 budget, Tony Abbott promised a $30 billion cut to our schools and in the 2017 budget, Malcolm Turnbull wants a big pat on the back for changing that cut to a $22 billion cut,” she said.

“A week out from the federal budget this is taking out the trash,” she said. “They want clear air on budget night.”

https://www.podbean.com/media/player/yzp4x-6a4d89?from=yiiadmin

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Bernardi says his new party will offer a ‘principled’ alternative for disillusioned conservative voters


Michelle Grattan, University of Canberra

Cory Bernardi, who formally defected from the Liberal Party on Tuesday, says he aims to provide the many disillusioned conservative voters with “a principled, credible and stable alternative in which they can vest their vote”.

As some ministers lashed out bitterly at him, accusing him of betraying those who had voted for him, Bernardi said the July election had seen one million votes leave the Liberal Party for alternatives.

“My ambition was always to bring those people back into the tent. I regret over the last seven months or so we see more of them leaving the tent. That says to me there is a serious problem,” he told a news conference.

Earlier, in a speech lasting less than five minutes, he told the Senate: “The body politic is failing the people of Australia”.

“When as a younger man I joined the ship of state, I was in awe of its traditions and the great captains that it guided us on our way. But now, as the seas through which we sail become ever more challenging, the respect for the values and principles that have served us well seem to have been set aside for expedient, self-serving, short-term ends. That approach has not served our nation well.

“The level of public disenchantment with the major parties, the lack of confidence in our political process and the concern about the direction of our nation is very, very strong. This is a direct product of us, the political class, being out of touch with the hopes and aspirations of the Australian people.”

Before his announcement, Bernardi rang Prime Minister Malcolm Turnbull, but he did not attend the Coalition parties meeting to inform it of his decision. He justified this later by saying he had already resigned from the party and so was not eligible to attend.

Turnbull told Coalition MPs the honourable course would be for Bernardi, having been elected as a Liberal, to resign from the Senate – a line reflected in sometimes bitter comments from other Liberals, including South Australian Liberal cabinet minister Christopher Pyne, who tweeted that Bernardi should quit and recontest as an independent.

Tony Abbott, in a post on Facebook which appeared to indirectly criticise Turnbull, said he was “disappointed that more effort has not been made to keep our party united”.

“No government entirely satisfies all of its supporters. This is not an argument to leave; it’s a reason to stay in and fight more effectively for the things we believe in,” Abbott said.

Although critics such as Immigration Minister Peter Dutton said the defection “dilutes our efforts to defeat the Labor Party”, Bernardi claimed it could “strengthen the ideological grounding of a centre-right government and that is my wish”.

His Australian Conservatives party will run Senate candidates, he said.

Asked whether as a crossbencher he would still vote for Coalition policies, Bernardi said: “My heart, my ethos is steeped in the Liberal Party. … If they put forward good policy, I will support them. If they err, I will tell them and try to amend it.”

On whether billionaire Gina Rinehart, an admirer and friend of Bernardi, would be a big funder of the Australian Conservatives, he said: “I have no idea. That conversation has not taken place.”

Bernardi rejected allegations that he had betrayed the South Australians who had supported him as a Liberal at the election.

“Every single Liberal Party voter and those party members knew exactly what they were supporting. My principles have not changed. My advocacy has not changed. I am seeking to do it in the most effective way.”

He said that going into the last election he had not intended to break away. He had said the election result was not good but “none of the people who said the base doesn’t matter, the conservatives have got nowhere to go, have been held to account for that result”.

He couldn’t say there was one straw that broke the camel’s back for him but “an amalgam of circumstances”.

He did highlight one policy matter for particular criticism. Late last year cabinet had authorised the investigation of what was in effect an emissions trading scheme, he said. “We fought that battle in 2009. It came at a huge personal cost. … I thought, why do I need to continually fight within my own party? I can’t struggle within the tent all by myself.”

The government’s leader in the Senate, George Brandis, said Bernardi had done the “wrong thing”.

“Seven months ago senator Bernardi was happy to stand before the people of South Australia to say he sought their endorsement to serve for a six-year term as a Liberal senator.

“In the seven months since the federal election, nothing has changed. There is no policy for which the Liberal Party and the government stands today, which is not the same as the platform on which senator Bernardi sought election.”

Brandis said the government would deal with Bernardi “as we deal with all members of the crossbench, in a professionally courteous and respectful way”.

“But we do not condone what he has done. Might I say, that if one seeks to restore confidence in the political class, it is a poor way to begin by breaking the promise one makes to one’s electors to serve for the political party on whose platform and whose ticket one stood.

“What senator Bernardi has done today is not a conservative thing to do, because breaking faith with the electorate, breaking faith with the people who voted for you, breaking faith with the people who have supported you through thick and thin for years and, indeed, decades is not a conservative thing to do.”

Former minister and a strong conservative Eric Abetz took a softer line than many of his colleagues: “There is no doubt that he is sincerely motivated. For the Senate, one it assumes it won’t make much difference in relation to the votes.”

Labor’s Senate leader Penny Wong said: “We know senator Bernardi’s view is far from an isolated one in this government. Because we know that amongst those opposite he is one of many, one of many, who believe that this government stands for nothing.”

The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

The Peripatetic Ponderings of a Passing Person | Transient Moments from my Life – That Which I See, Often Hear and How I Live


I have started a new Blog over the last couple of days – I haven’t forgotten about any of my other Blogs though. I’m looking forward to tomorrow, when I will be able (hopefully) to access the Internet at a reasonable speed again. One of the posts in the new Blog addresses this situation, or at least comments on it.

Visit the new Blog at:
http://peripateticponderings.wordpress.com/

Australian Politics: 29 September 2013 – The Slow Death of the Greens?


The federal election is over and the Coalition is now in government. Already there is a growing dissatisfaction with the new Abbott-led government over a wide-ranging series of issues including nepotism, asylum seeker policy, the environment, a lack of governance, etc. There is also continuing debate within the various opposition parties concerning their future direction, policies, etc. Yet for the Greens, the future is questionable, with some believing the party to be in serious decline – even among those within the party.

The link below is to an article reporting on the turmoil within the Greens party.

For more visit:
http://www.smh.com.au/federal-politics/political-news/milnes-greens-marching-to-slow-death-20130928-2ulgp.html