A new Bill to ‘Strengthen the Character Test’

The Morrison Government has proposed additional changes to the character test in the Migration Act. This Bill was tabled in Parliament in July and is due to be debated in the Senate in the week commencing 16 September or from October. The Parliamentary Library analysis of the Bill is here.

I have drafted a short submission for the Senate Committee inquiry, due on 7 August. You can view the submission here. If you would like to add your name to the submission, please let me know by email and I’ll do so [henry.sherrell@gmail.com]. You can do so in a personal or professional capacity. If you have minor suggestions or feedback on the submission, please let me know, noting I will not be adding more general discussion of the Bill to maintain brevity. Please feel free to forward this blog post or the document itself onto any others you feel may lend their name to the submission. 

I believe the Bill will have significant negative effects for the administration of the Migration Act, and generate considerable difficulty for recent (and not so recent) migrants to Australia. 

The Bill was first introduced in 2018 and attracted 17 submissions, many making a strong case against the Bill. The Bill lapsed given the election. With this in mind, my submission is not long nor does it cover all of the issues raised by the Bill, as these are mostly discussed in the Committee’s previous report. I have tried to complement previous submissions. 

Labor have hinted in the media they are considering their position on the Bill. For the Senate to defeat the Bill, each of Labor, the Greens, Centre Alliance and Jacqui Lambie will be required to vote against it.

A short explanation on my position. In societies where the politics of law and order has become so dominant, it is difficult to argue for a set of principles that will provide any benefit whatsoever for people convicted of crimes. Combine this with the general topic of immigration, and it becomes almost impossible. Yet these recent legislative developments point towards a sharp deterioration in how we treat people who, in many cases, have made their life in Australia. This is occurring largely out of sight, given the people affected do not have the ability to participate in Australian democracy.

An Australian citizenship crisis?

I was leafing through a 2011 report, Citizenship in Australia, published by the then Department of Immigration and Citizenship, and saw the “citizenship rate” for people born overseas in the 2006 Census was 68 per cent [This rate excludes tourists and business visitors but includes people on longer-term temporary and permanent visas]. I haven’t seen any analysis on the most recent Census so decided to have a quick look.

Perhaps unsurprisingly, there was a six percentage point drop in the citizenship rate for people born overseas in the 2016 Census, down to 62 per cent. Six per cent does not sound like a large figure but it translates into about an extra 230,000 people.

This is unsurprising for a number of reasons. The growth in temporary and permanent migration from 2006-2016 was pronounced and citizenship take-up doesn’t happen immediately. This means there were more recently arrived migrants in Australia for the decade to 2016 compared to 2006. But we also know there are growing rates of people who are hold temporary visas for long periods of time, intending to become permanent residents and citizens but frustrated by the visa system. In November 2016, there was a three-fold increase to 46,000 in the number of people who held a temporary visa [excluding New Zealand citizens] who had been in Australia for 7-8 years, compared to just three years before in November 2013. Further, changes in citizenship policy (including the introduction of the citizenship test in 2007) may have had a negative effect on take-up rates.

But regardless of whether this is expected or not, the decline in citizenship rate for people born overseas is disturbing. Australian democratic norms demand an inclusive franchise and the current trajectory mean we are seeing the opposite emerge over time. This is an issue in need of attention from political actors and civil society. An expansive population of non-citizens has broad implications for our society.

It is worthwhile dwelling on how and why this trend has emerged. There is no citizenship safety net for people migrants to Australia who have lived here for a long time. It is a formal process, with eligibility criteria, and relies on a sequence of residency decisions. Temporary visa holders cannot become citizens without first gaining a permanent visa.

There are two groups who stand out. In 2016, there were around 86,500 people born in Australia who are not citizens. It’s difficult to even call these people migrants given they are born here. Just over 70,000 of these people were children. This figure has more than doubled since 2006, when it was 39,600, with 27,500 being children. These numbers are staggering in their size and trend.

Sometimes it surprises people when they find out children born in Australia are not automatically Australian citizens. This was the case until the Hawke Government changed the law in the mid-1980s. Now, a child becomes a citizen only if at least one of their parents is a permanent resident or citizen. A child born to two people who hold temporary visas is granted the same visa as their parents. There is a safety net for children born in Australia, the ’10 year rule’, where if a child born in Australia remains in Australia for 10 years, they automatically become a citizen. By the look of the Census trends, this rule is more relevant today than ever before.

The second group is people born in New Zealand, one of our largest migrant origin countries, dropped from a 37 per cent citizenship rate in 2006 to 31 per cent in 2016. There are structural visa policy barriers to citizenship for New Zealanders in Australia. These barriers are unlikely to be removed by either side of politics given they exist to prevent fiscal welfare expenditure.

The rise of non-citizen children born in Australia and New Zealand citizens living in Australia restricted from citizenship raise important case studies for how our society is shaped and who is allowed full membership. The introduction of the citizenship test in 2007 was the first instance since the 1980s where gaining citizenship was made more difficult. In the years since, the prevalent rhetoric from political leaders is how citizenship is a privilege, one which is earned.

But this is only half the compact, the responsibilities of the potential citizen to the State they wish to join. The other half, equally important, is how the State sets the rules and rights of access. While our visa rules have changed, Australia has failed to also adjust citizenship rules. We have moved too far away from a set of conditions that welcome a critical mass of people living in our society to be full members, to be citizens. In an age where security and fiscal austerity drives citizenship policy, the rules affecting the vast majority of people who do the right thing are now an unfair burden, including on children who have no agency to change their lived experience.

Recent publications: visa trends, population, and the Australia-New Zealand relationship

I’ve had a couple publications released in the last day.

In each new Parliament, the Parliamentary Library collates a series of articles outlining key themes for the Parliament. The ‘Briefing Book’ is a good starting point for a short background of policy areas and what is in store for the 46th Parliament. I had two articles published in the collection, one on permanent and temporary visa trends and one on population. Here is the key issue from each piece:

“Recent changes to permanent and temporary visa policy is changing the nature of Australian immigration. Historically, the Australian Government has had tight control over the number and type of migrants arriving. However over the past two decades, the importance of other actors has become clear, including employers, higher education providers and migrants themselves.”


Australia’s population, compared to other nations, is: mid-sized; briskly growing; ethnically diverse; middle-aged; sparsely settled yet highly urbanised; and characterised by high life expectancy and a middling birth rate. The changing nature of the population raises policy challenges across a number of areas, including immigration, infrastructure and the labour market.

And this morning, the Lowy Interpreter published my analysis on the Australia-New Zealand relationship, through the prism of the Character Test. Over the past five years, over 1,600 Kiwis have been deported from Australia due to the introduction of new mandatory visa cancellations powers. The Morrison Government is now proposing further visa cancellation levers for the Minister of the day. Prime Minister Ardern has called this ‘corrosive’ to the relationship between the two countries.

Australia’s English Problem: a new report on AMEP

James Button has written a new narrative, a proposal to renew the Adult Migrant English Program (AMEP), for the Scanlon Institute [disclosure: I am affiliated with the Scanlon Institute’s Research Committee].

Titled “Australia’s English Problem: How to renew our once celebrated Adult Migrant English Program“, the report details the deterioration of the AMEP over time and the consequences this has for new migrants today. Recently the number of participants has dropped and teachers are leaving without being replaced, however Button rightly notes the demise began decades ago.

Many migrants in the program are unable to attain the recommended baseline of English proficiency in the number of hours allowed. In addition, inflexible service delivery means the twin pillars of migrant settlement – language and employment – are too often in direct tension with each other at the very time when migrants need the most support to begin their lives in Australia.

Below are the key messages and a set of recommendations from the report.

Key messages

  • English language learning is central to Australian nation building, and should be central to immigration and settlement policy.
  • The Australian Government has a long and proud record of helping migrants to learn English. That record is threatened today.
  • The groups most at risk of not speaking English well are sections of the Chinese community, refugees, and some women.
  • Five large-scale shifts in the economy, the source countries of Australia’s migrants, diaspora communities, and the practice and philosophy of government have created significant difficulties for the 71-year old AMEP program.
  • The program, which has been a world leader in language learning, suffers from a lack of clarity in balancing its settlement and employment objectives.

Considerations for how to improve the AMEP

  • Extend the time in which migrants can enrol in and complete the AMEP, while
    continuing to encourage migrants to start the program as soon as possible after arrival.
  • Uncap the AMEP Extend sub-program, so that all students can study at least 1000 hours.
  • Maintain and extend the AMEP sub-program, the Settlement Language Pathways into Education and Training (SLPET).
  • Restore government funding for independent research on the AMEP.
  • Promote a diversity of ways to deliver the AMEP, notably in online and distance learning.
  • Restate the settlement focus of the AMEP as part of developing more sophisticated and realistic outcome measures for the program.
  • Incorporate English language learning into more personalised approaches to settlement services.

Contribution to CEDA report: the Effects of Temporary Migration

I was pleased to be able to contribute the opening chapter to this new CEDA report, titled the Effects of Temporary Migration: Shaping Australia’s society and economy.

My chapter focuses on the rise of temporary migration policy, a brief overview of the numbers involved, and the relationship between temporary and permanent visas, including the effects on population trends.

I agree with the recommendations contained in the report (with a caveat there other things that need to occur, particularly around better enforcing protections against exploitation). The Australian business community need to do much more in relation to actually showing how and why these policy matters are important. With a few exceptions, it is very difficult to understand what role a new worker plays within a large organisation because basically no ASX200 members say anything with any depth about migration. I applaud CEDA (and Gaby d’Souza in particular) for their attempt to move things along.

Re-reading what it means to be Australian

I was recently re-reading this excellent ANUPoll by Jill Shepard, ‘Australian attitudes towards national identity: citizenship, immigration and tradition‘, published in April 2015. The first question in the poll is the most interesting, asking what does it mean to be Australian?

Before I saw this poll, I’d always assumed being born in Australia would be considered the a critical factor when it comes to understanding what makes someone Australian. Turns out that’s not the case. Language skills and holding citizenship are clear markers over birthplace.

There are other interesting bits here as well. Respect for political institutions and laws is almost universal in terms of what it means to be an Australian. Yet in the same year, the Scanlon Foundation social cohesion survey found just 16 per cent of respondents consider the system of government ‘works find as it is’. Trust in politics, the media, and a raft of other institutions is stuck compared to where it was a generation ago. Clearly trust and respect as not mutually exclusive but the sheer size of the disparity feels important.

We’re four years removed from these results and a fair bit has happened in that period in relation to public debate on migration and citizenship. I imagine there has been some movement on the margins but I’d be surprised if there was wholesale change in the general shape of opinion, given the way these attitudes tend to form and hold over time.

In the last Parliament, the Turnbull Government’s proposed citizenship changes were defeated, primarily due to opposition to a higher English language test and the restrictiveness this would engender. The public debate was a rarity. Not since the introduction of the citizenship test by the Howard Government had the relationship between citizenship and recent migrants made such a splash in politics.

But the debate remained straightforward: imbuing value by generating a more exclusive citizenship, and opposition to this. We never moved past the legislative proposals and into a more substantive discussion. No-one was challenged if they said ‘citizenship is a privilege’. Personally, it strikes me as only half the equation. If we accept we live in a liberal democratic state, we should not ignore the responsibilities of the state to maintain a threshold number of citizens.

Re-reading the results above prompted me to think about what I’d like to see more when it comes to thinking about the settlement journey of recent migrants. A bigger conversation about how governments of all jurisdictions can make learning English easier. A more critical examination of how recent migrants access citizenship and what it means to them. And while I recognise these are not questions that fit neatly into a news cycle, they remain prescient for proactively shaping the society we want to live in instead of simply responding to a more negative alternative.

A jurisdictional debacle: New migrants and the NSW Government foreign resident surcharge

The main gripe from state governments concerning migration is a lack of agency. Before the 2019 state election, Premier Gladys Berejiklian called for a halving of net migration to NSW. Unhelpfully for the NSW Government, Section 51 of the Australian Constitution means the Premier is unable to do much about this except jawbone. The jurisdictional intersection between state and federal government is basically a one way street. This has real and abiding consequences, particularly for the process of how migrants settle into Australia.

Federal Governments of both persuasions have transformed Australia’s migration policy framework in recent decades without any material input from their state counterparts. While there are visa categories allowing state governments some oversight, in reality, what state governments are able to do is mostly tinkering at the margins.

Recently, it feels like there is an increasing awareness about how migration policy has changed. You can see this in more substantial public debates about how many migrants come to Australia and when various policy debates around temporary visas make a splash, such the English proficiency of international students in higher education.

However this general awareness has yet to seep into a generally agreed set of social norms in relation to how migrants should be treated by the State (governments of all jurisdictions). Perhaps it is simply too contemporary to grasp. But in the meantime, big decisions are being made, that have a myriad of effects, not least the signal we send to new migrants in terms of how they settle into our shared society.

A prominent example is taxation. Migrants pay income tax and GST like everyone else. But increasingly, some migrants are paying more tax than others because of the visa they hold. In the 2016-17 Budget, the same NSW State Government now calling for a large reduction in migration, introduced two revenue measures to be paid by ‘foreign residents’. These measures were:

  • a four per cent ‘surcharge purchase duty’, for residential real estate, to be paid in addition to stamp duty, and,
  • a 0.75 per cent ‘surcharge’ residential land tax.

The following Budget in 2017-18 increased the surcharge purchase duty to eight per cent and the residential land tax to two per cent. To give some idea of what this is worth, a quick google uncovered this two bedroom apartment near Blacktown station in Sydney going for $499,950. To purchase this apartment, a “foreign” buyer would need an additional $39,996 for the surcharge purchase duty and then an ongoing two per cent payment on whatever land entitlement is attached to the apartment.

Who pays these surcharges? The definition of ‘foreign resident’ becomes central and as stamp duty is a state government tax, state governments decide. In the past, before Australia’s migration framework was upended from the mid-1990s onwards, this was a relatively straight forward process. Anyone in Australia who was not a citizen or permanent resident was generally classified as a ‘foreign resident’.

Today, this definition largely remains in NSW, with a couple of exceptions for partner visas and New Zealand citizens. But as at 31 March 2019, there were about 1.6 million people who hold a temporary visa in Australia excluding the Kiwis. A strong majority do not intend to settle in Australia long-term. This figure includes tourists, students, backpackers and others. But a minority do intend to settle in Australia and transition to a permanent visa in due course. We can see evidence for this as about one in two people who gain a permanent visa are already in Australia.

Take someone who is sponsored by their employer as a skilled migrant. When my family migrated to Australia in 1989, we gained permanent visas on entry courtesy of an employer sponsorship. Today, we would have almost certainly been offered a temporary visa, the Temporary Skill Shortage visa (formerly the 457 visa). Historically, about 50 per cent of people who gain a temporary skilled work visa have transitioned to some form of permanent residency in the future [recent policy change is likely reducing this proportion].

These people are not ‘foreign residents’ in the traditional sense. All are meant to have permanent, skilled employment with a salary above $53,900 [noting there are clear issues in certain industries for this visa category]. They are not here on tourist visas surveying the investment property landscape. Yet according to the NSW State Government, people who hold temporary skilled visas are ‘foreign residents’ because their visa has a end date.

I assume the introduction of these fees will dissuade people living in Australia as ‘foreign residents’ but who intend to gain a permanent visa in the future from purchasing a house. And while not purchasing a house will not raise any revenue for the NSW Government, there will be effects. There are currently about 70,000 people who hold some form of temporary skilled work visa in NSW at the moment, all of whom are liable for these new surcharges. My family bought a house almost immediately, a decision allowing us to settle in a part of Melbourne which linked me to a school and a broader community. Placing severe financial barriers in place upends this process.

To go along with a more precarious employment situation (being tied to a single employer, with limited ability to move), new migrants who intend to settle in Australia but hold a temporary visa in Australia’s ‘global city’ are now second-class non-citizens in relation to housing.

[A couple of caveats here. (1) I don’t have anything against taxes and levies on housing investment for genuine foreign residents. My personal belief is housing should be for people to live in, not an investment vehicle for speculators to make money from. But the current situation in NSW points towards a jurisdictional intersection that is broken when it comes to new migrants and how they settle into Australia. And (2), this intersection of policy should not tied up with general support or opposition for these types of visa categories. Those decisions need to be focused on employers given they are the source of labour demand generating the visa in the first instance.]

A number of recent policy decisions will exacerbate these types of challenges. The Morrison Government’s introduction of two new regional visas from November 2019 is the most obvious example. Both of these visas, an employer-sponsored and independent skilled, will be provisional. A provisional visa is not a permanent visa but puts the person who holds it on a defined track towards a permanent visa. People who hold these visas will, under the current regulations, be required to pay the eight per cent stamp duty surcharge, despite not being able to settle in Sydney. I imagine it will be difficult for regional NSW towns to hold onto new arrivals if they are precluded from purchasing a house because of their visa status. In addition to additional waiting periods for welfare support and citizenship, a provision visa in NSW will mean an additional waiting period to buy a house.

To me, this relatively small policy issue sums up a central theme emerging across Australian migration policy: migration has changed but everything else hasn’t, driven mostly by self-interest from a range of actors that is harming the social bonds which hold together our community.

I hope to write more about these types of policy quirks in the future, about how migration rules and regulations are not the only, or even the primary, factors influencing how migrants settle and live in Australia today. If you have a suggestion for a topic, please let me know either by email (henry.sherrell[at]gmail.com) or tweet me @henrysherrell.