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The Committee on
the Elimination of Racial Discrimination, established under article 8 of the
International Convention on the Elimination of All Forms of Racial
Discrimination,
Meeting on 22 February 2008,
Having concluded its consideration of communication No. 39/2006, submitted
to the Committee on the Elimination of Racial Discrimination by D.F.under
article 14 of the International Convention on the Elimination of All Forms
of Racial Discrimination.
Having taken into account all information made available to it by the
petitioner of the communication, his counsel and the State party,
Adopts the following:
Opinion 1. The petitioner is D.F., a New Zealand citizen now residing in
Australia. He claims to be a victim of violations by Australia of article 2,
paragraph 1(a), and article 5(e) (iv), of the International Convention on
the Elimination of All Forms of Racial Discrimination. He is not
represented.
The Facts as Presented by the Petitioner
2.1 On 30 June 1970, at the age of 6, the petitioner and his family
immigrated to Australia. As a New Zealand citizen, he was automatically
deemed to be a permanent resident upon arrival and exempted from any visa
requirements. In 1973, his status was that of an "exempt non-citizen" under
the bilateral Trans-Tasman Travel Arrangement between Australia and New
Zealand, which allows citizens of both countries to live in either country
indefinitely. In 1994, the petitioner was automatically granted a Special
Category Visa (SCV), which allowed him to remain indefinitely in Australia,
as long as he remained a New Zealand citizen. In 1998, he was temporarily
seconded overseas by his employer. He had then resided in Australia for 28
continuous years and had married an Australian. He regularly returned to
Australia during his temporary absence and identifies himself as an
Australian. He does not specify when he returned to Australia.
2.2 On 26 February 2001, the enactment of a bilateral social security
agreement between Australia and New Zealand was announced. On the same day,
the State party introduced national measures regarding social security
benefits, amending the Social Security Act (1991) (SSA), and restricting
access to the full range of social security payments to New Zealand
citizens, unless they held permanent visas. This new act, known as the
Family and Community Services Legislation Amendment (New Zealand Citizens)
Act 2001, entered into force on 30 March 2001. According to the petitioner,
this revised act was adopted unilaterally by the State party and not for the
legitimate purpose of implementing the bilateral agreement.
2.3 The main amendment to the 1991 Act related to the meaning of the term
"Australian resident", which defines eligibility for most social security
benefits under the SSA. Prior to the amendment, the definition of
"Australian resident" included Australian citizens, New Zealand citizens (SCV
holders) and permanent visa holders. The amendment introduced a new class of
non-citizen under social security law: the "protected" SCV holders, who
retained their rights to social security, while all other SCV holders lost
certain rights in this area. Those New Zealanders who were in Australia on
26 February 2001, and those absent from Australia on that day but who had
been in Australia for a period totalling 12 months in the two years prior to
that date and who subsequently returned to Australia, continued to be
treated as Australian residents for the purposes of the Act, as they were
now considered "protected" SCV holders. Other New Zealand citizens had to
meet normal migration criteria to become an "Australian resident" for the
purposes of the Act. The petitioner was not in Australia on the pertinent
date and did not fulfil the transitional arrangements, as he was absent from
the State party for more than 12 months in the 2 years immediately prior to
and including 26 February 2001. He thus lost his status as an "Australian
resident" for the purposes of the revised Act. In addition, and in
conjunction with the revised Act, ministerial powers afforded under
Subsection 5A(2) of the Citizenship Act 1948 were used to remove citizenship
eligibility from New Zealand citizens who are not "protected" SCV holders
and who do not have permanent resident status. According to the petitioner,
the aim was to ensure that he was unable to regain his status as an
"Australian resident" for the purpose of eligibility for social security by
becoming an Australian citizen under Section 5A(2) of the Citizenship Act
1948 [FN1], which now deprives him of eligibility for Australian
citizenship.
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[FN1] Australian Citizenship Permanent Resident Status (New Zealand
Citizens) Declaration 2001- See Attachment 2
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2.4 Since the petitioner lost his status as an "Australian resident" for the
purposes of social security benefits and citizenship, he is now required to
apply for and obtain a permanent residence visa if he wishes to regain his
previous rights. He would then be required to wait two additional years
(waiting period for new arrivals regarding eligibility for social security),
even though he has already resided in Australia for over thirty years. The
petitioner has not yet attempted to apply for such a visa. He argues that
the new legislation places him in a precarious situation, should he become
sick, injured or unemployed. Although he admits that, prior to the passage
of the bill, New Zealand citizens were given preferential treatment to
citizens from other countries, he argues that the withdrawal of "the
positive discrimination" towards New Zealand citizens for the purposes of
creating equality between them and other non-citizens was never announced as
an objective of the Act in question and did not in fact achieve that aim.
2.5 In May 2006, the petitioner lodged a complaint with the Human Rights and
Equal Opportunities Commission (HREOC), regarding the withdrawal of benefits
and rights to social security and citizenship under the revised legislation.
On 21 June 2006, his complaint was rejected, on the grounds that: it could
not proceed with any complaint under the ICERD; discrimination on the ground
of a person's citizenship or visa status was not a ground covered under the
Racial Discrimination Act (1975), and the HREOC Act does not cover
complaints where the events complained of are the result of the direct
operation of legislation.
The Complaint
3. The petitioner claims that he has exhausted domestic remedies by virtue
of his complaint to the HREOC. He claims that the Family and Community
Services Legislation Amendment (New Zealand Citizens) Act 2001, which
amended the Social Security Act (1991) (SSA), discriminated against him on
the basis of his New Zealand nationality, by withdrawing entitlements to
social security and citizenship, in violation of article 5 (e)(iv) of the
Convention. By so doing, the State party also committed an act of racial
discrimination against a group of persons, of which he is a member, in
violation of article 2(1)(a), of the Convention.
The State Party's Submission on Admissibility and Merits
4.1 On 1 May 2007, the State party submits that the communication is
inadmissible, as the petitioner is unable to demonstrate that he is a victim
of a violation of either article 2, paragraph 1 (a), or article 5 (e)(iv),
of the Convention. It denies that the Family and Community Services
Legislation Amendment (New Zealand Citizens) Act 2001, discriminates against
New Zealand citizens living in Australia on the basis of their national
origin. It submits that the Act amends legislation which previously allowed
New Zealand citizens living in Australia as holders of "Special Category
Visas" to receive certain social security payments without having to apply
for permanent residence in Australia or Australian citizenship. Subject to
transitional arrangements, New Zealand citizens arriving in the State party
must now meet the definition of "Australian resident" that applies to all
entrants to Australia before being eligible for certain Australian
Government funded social security payments. These changes do not affect the
ability of New Zealand nationals residing in Australia to have automatic
access to other benefits such as employment services, health care, public
housing and primary and secondary education.
4.2 According to the State party, under the terms of the new legislative
amendments, no distinction is applied with respect to access to social
security between New Zealand citizens and people of other nationalities who
live in Australia. The limitation on the petitioner's ability to access
certain social security benefits is not based on his national origin but on
the fact that he is neither a permanent resident nor an Australian citizen.
Previously New Zealand citizens received preferential treatment; the
subsequent withdrawal of such advantages does not constitute discrimination,
as it merely places New Zealand citizens on an equal footing with people of
other nationalities who are neither permanent residents nor Australian
citizens. It is open to the petitioner, as with all migrants to Australia,
to apply for a permanent residence visa. Persons who have held a permanent
residence visa for two years are eligible to receive certain social security
payments, such as unemployment benefits.
4.3 The State party dismisses as misleading the allegation that New Zealand
citizens who had been residing in the State party but were temporarily
absent at the time the amendments came into force, i.e. 26 February 2001,
"lost their rights", unlike New Zealand citizens who were present in the
State party at that time and could avail themselves of the transitional
arrangements in the legislative amendments. It submits that extensive
transitional arrangements were put in place for New Zealand citizens
temporarily absent from Australia on 26 February 2001. These arrangements
provided a regime for many New Zealand citizens to continue to receive the
benefits available under the pre-February 2001 arrangements. In particular,
the changes did not apply to New Zealand citizens who were temporarily
absent from the State party if they had been in Australia for a period, or
periods, of 12 months in the previous 2 years immediately before 26 February
2001. For those New Zealand citizens who were intending to reside in
Australia at the time of the changes, a 3-month period of grace applied from
26 February 2001 (i.e. 3 months to commence or recommence residing in
Australia). A 6-month period of grace applied to those New Zealand citizens
temporarily absent from Australia on 26 February 2001, and who were in
receipt of social security payments. A 12-month period of grace applied to
those New Zealand citizens, resident in Australia but temporarily absent,
who were unable to return to Australia in the 3 month period and were not in
receipt of a social security payment.
4.4 On the merits, the State party submits that the petitioner has failed to
substantiate his claims of racial discrimination and that the communication
is thus without merit. It notes that the legislative amendments do not
affect the petitioner's access to employment services, health care, public
housing and primary and secondary education or family tax benefits nor do
they affect the petitioner's right to obtain gainful employment in
Australia. New Zealand citizens are still permitted to travel, live and work
indefinitely under the terms of the Trans- Tasman Travel Arrangement. In
this respect, they continue to access a significant relative advantage over
citizens of other countries under the Trans-Tasman Travel arrangements.
Petitioner's Comments on State Party Submission
5.1 The petitioner notes that the State party does not contest the
admissibility of the complaint as far as it concerns exhaustion of domestic
remedies. He argues that although the State party admits that, as a New
Zealand citizen he can remain "indefinitely" within the State party, he is
not a "permanent resident" for the purposes of the amended legislation. In
his view, any distinction based on whether a person holds a SCV (as in his
case) or a permanent residence visa is a distinction based upon "legal
formalism" - as it ignores the fact that both visas afford
indefinite/permanent residence. He argues that rather than comparing his
situation to that of a minority group of non-citizens (those who do not have
permission to indefinitely reside in Australia and thus never had the same
rights to social security as the petitioner), his situation should be
compared to that of the majority who are also indefinitely residing in
Australia, i.e. Australian citizens.
5.2 In the petitioner's view, the argument of "equality through deprivation"
is illogical, as it can be used to claim that any group is "advantaged" over
a more deprived group. He notes that the State party has used this argument
on several recent occasions years to justify the progressive limitation of
the right to social security for non-citizens, including, the extension of a
two-year waiting period to New Zealand citizens before they became eligible
to receive most social security benefits, to ensure that they too are now
"equal" to permanent visa holders. As to the suggestion that he may apply
for a "permanent visa", he argues that the possibility of changing his
immigration status to one that is less discriminatory does not address the
claim that he is discriminated against because of his current status as the
holder of a Special Category Visa - particularly given that his current visa
pertains directly to his nationality. In addition, there is no guarantee
that he will be granted one [FN2].
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[FN2] He refers to the Committee's concluding observations on Australia
(Sixty-sixth session, 21 February-11 March 2005), in which it raised a
concern with respect to the limited public services offered to refugees and
stated that "differential treatment based on citizenship or immigration
status would 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 that aim. He also refers to General
comment no.3 on article 9 of the Covenant on Economic, Social and Cultural
Rights ('ICESCR'), which states that "......any deliberately retrogressive
measures [...] would require the most careful consideration and would need
to be fully justified by reference to the totality of the rights provided
for in the Covenant and in the context of the full use of the maximum
available resources."
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5.3 The petitioner affirms that New Zealand citizens retain other advantages
under the terms of the Trans-Tasman Travel Arrangement, but, in his view,
this does not absolve the State party from discriminating against New
Zealand citizens under the new amended legislation. As to the arguments on
the transitional arrangements, he submits that the fact that he was
potentially eligible for a limited period to apply to regain his rights does
not negate the fact that he lost them in the first place. In any event, he
argues that the deadline to regain his rights was inadequate, as was the
method of informing those who were absent from the State party at the date
of the legislative amendments. He notes that the State party failed to offer
any observations pertaining to the deprivation of his eligibility for
Australian citizenship based upon his nationality.
Issues and Proceedings Before the Committee
6.1 Before considering any claim contained in a communication, the Committee
on the Elimination of all Forms of Racial Discrimination must decide,
pursuant to article 14, paragraph 7(a), of the Convention, whether or not
the current communication is admissible.
6.2 The Committee notes that the State party has not disputed the
petitioner's argument that he has exhausted domestic remedies and thus
considers that he has done so, for purposes of admissibility.
6.3 The Committee notes the State party's argument that the petitioner has
not demonstrated that he is a "victim" within the meaning of the Convention,
as his lack of entitlement to social security benefits was not based on his
national origin but rather on the fact that he is neither a permanent
visa-holder nor an Australia citizen. The Committee notes, however, that the
petitioner was affected by the amendments to the Act in question and thus
could be considered a "victim" within the meaning of article 14, paragraph
1, of the Convention. The question of whether the petitioner was
discriminated against on the basis of his national origin and the State
party's arguments in that regard relate to the substance of the petition
and, for this reason, should be considered on the merits. The Committee
finds no other reason to consider the petition inadmissible and therefore
moves to its consideration on the merits.
7.1 The Committee notes that the State party contests the petitioner's claim
that he is discriminated against on the basis of his national origin with
respect to the distribution of social security benefits. It observes that
prior to the entry into force of the Family and Community Services
Legislation Amendment (New Zealand Citizens) Act of 2001, New Zealand
citizens residing in Australia had the same rights to social security
benefits as Australian citizens. These benefits were granted to New Zealand
citizens on the basis of their nationality. Pursuant to the Act of 2001,
these benefits were withdrawn from the petitioner and all other New Zealand
citizens who were not entitled to, or in possession of, "protected" Special
Category Visas or permanent resident visas. Thus, the distinction which had
been made in favour of New Zealand citizens no longer applied. The
provisions of the Act of 2001 did not result in the operation of a
distinction, but rather in the removal of such a distinction, which had
placed the petitioner and all New Zealand citizens in a more favourable
position compared to other non-citizens.
7.2 The provisions of the 2001 Act put New Zealand citizens on a more equal
footing with other non-citizens, and they can apply on the same terms for a
permanent resident's visa or Australian citizenship, the receipt of either
of which would bring them within the definition of "Australian resident" for
the purposes of receiving the benefits in question. In this context, the
Committee notes that the petitioner has neither argued nor demonstrated that
the implementation of the Act of 2001 itself results in distinctions based
on national origin. He has failed to show that his national origin would be
an impediment to receiving a permanent resident's visa or Australian
citizenship, that the majority of visa holders are non-citizens of national
origins different to himself, or indeed that he has been refused such a visa
on the grounds of his national origin. For these reasons, the Committee
concludes that the Act in question does not make any distinctions based on
national origin and thus finds no violation of either article 5 (e)(iv) or
2(1)(a) of the Convention.
8. The Committee on the Elimination of Racial Discrimination, acting under
article 14, paragraph 7 (a), of the International Convention on the
Elimination of All Forms of Racial Discrimination, is of the opinion that
the facts as submitted do not disclose a violation of any of the provisions
of the Convention.
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