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Wednesday, 7 December 1983
Page: 3382

Mr WEST (Minister for Immigration and Ethnic Affairs)(3.20) —I now turn to the principal clauses of the Bill. Clause 2 provides that the amending Act shall come into operation on the twenty-eighth day after the date of royal assent, except certain specified clauses relating to the status of British subject in Australia which will come into force on a date to be proclaimed. This second commencement day is necessary to allow time for consequential amendments to be made to other legislation where the status of British subject is employed.

Clause 4 amends section 5 to effect, amongst other things, the removal of all discriminations and to insert some new interpretation provisions. Honourable members will notice that, unlike the existing definition of 'responsible parent' , which is discriminatory on the basis of sex, this phrase will mean a person who is a natural parent of a child, or who, by reason of adoption, operation of law or a court order, has guardianship or custody of the child whether jointly or otherwise. In line with recent advances in the medical field, new sections 5 (6), 5 (7) and 5 (8) are inserted to deem a child born to a woman as a result of artificial insemination or the implantation of an embryo in her body to be the child of her and her husband where the medical procedure was carried out with the husband's consent.

The existing definition of 'alien', which is discriminatory on the grounds of nationality and country of birth, is also being repealed. Consequential amendments are made throughout the Act as a result of the removal of these discriminations. Clause 5 inserts new section 5A to give effect to government policy under which generally only permanent and lawful residents are eligible to apply for citizenship. A permanent resident for the purposes of citizenship is defined to mean a person whose continued presence in Australia is not subject to any limitation as to the time imposed by law, who is not a prohibited immigrant before the commencement of the Migration Amendment Act 1983, or is not a prohibited non-citizen after the commencement of that Act, and is not a person included in a class of persons exempt from the requirement of entry permit under section 8 of the Migration Act 1958, such as foreign diplomats and consular officials.

Permanent residents who are temporarily absent from Australia are not going to lose their status if they are holders of a return endorsement which remains in force. Under the Migration Act, there is provision to exempt certain categories of people from the requirement of an entry permit upon entry to Australia, including citizens of New Zealand. The proposed amendments to the Australian Citizenship Act will exclude all these exempt categories from being eligible for citizenship in terms of residential requirements. Such an exclusion would be anomalous and the Bill therefore under new section 5A (2) will empower the Minister to declare certain categories of lawful residents to be permanent residents for the purposes of citizenship. The major group to be covered by this provision would be citizens of New Zealand. When the Act is amended, a person may acquire Australian citizenship by birth, by adoption, by descent or by grant .

Clause 9 amends existing section 10 relating to citizenship by birth in Australia. At present, section 10 provides that persons born in Australia are Australian citizens by birth, unless at the time of birth the father was a diplomat, a consular official or a foreign country or an enemy alien. This provision does not apply when the mother was in one of those categories. The amendments will remove this discrimination and provide that, where a parent of the person was a diplomat, consular officer or enemy alien at the time of that person's birth, the person will nevertheless be an Australian citizen by birth if the other parent was an Australian citizen, a permanent resident, or a permanent resident who was not himself or herself an enemy alien.

Clause 10 repeals section 11 on citizenship by descent, and substitutes new section 10A on citizenship by adoption and new section 10B on citizenship by descent. New section 10A will provide that a person who is present in Australia as a permanent resident and is adopted in Australia by an Australian citizen is an Australian citizen by adoption. At present, a person in this situation may acquire Australian citizenship only by grant.

The current Act provides for a child born overseas to an Australian citizen to acquire an Australian citizenship only if registered at an Australian consulate within five years of birth, or within some further period that the Minister might allow. Under new section 10B, persons born to Australian citizens overseas may acquire Australian citizenship by descent, if their names are registered at an Australian consulate within 18 years after birth, and, where the person's Australian parent had himself or herself acquired Australian citizenship by descent, there will be an additional requirement that the parent was lawfully present in Australia for at least two years at any time before the registration. This additional requirement serves to emphasise the association with Australia. Of course, where the failure of meeting one or both requirements of new section 10B would render the person stateless, the person will be registered as an Australian citizen by descent, because of Australia's international obligations to prevent statelessness. I refer honourable members to clause 20. The Bill also contains in clause 41 (5) a transitional provision under which within two years after the commencement of this amending legislation registration of citizenship by descent may be affected according to the old provisions.

Clause 11 repeals existing section 13 on declaration of intention to apply for citizenship. This section neither assisted applicants nor contributed to the efficiency of administering the Act. Clause 11 also repeals section 14 on grant of Australian citizenship, and substitutes new sections 13 and 14. I have already highlighted the most important changes which are made to the requirement for citizenship by grant. The full conditions set out in new section 13 (1) are that the Minister must be satisfied that an applicant:

Is a permanent resident;

has attained the age of 18 years; understands the nature of the application;

has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of two years immediately preceding the date of the furnishing of the application ;

has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than two years during the period of five years immediately preceding the date of the furnishing of the application;

is of good character;

possesses a basic knowledge of the English language;

has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

if granted a certificate of Australian citizenship, the applicant is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.

There are of course provisions under section 13 to ease some of the requirements for special cases such as people with physical or mental incapacities, and older people who have difficulties in learning English. For the purpose of computing the aggregate period of an applicant's presence in Australia, the Minister under new section 13 (4):

(A) must exclude the applicant's periods of confinement in a prison, except where his conviction was subsequently quashed, or in a psychiatric institution by order of a court;

(B) may, at his discretion, treat as a period during which the applicant was present in Australia:

A period during which the applicant was a permanent resident but absent overseas while engaging in activities beneficial to Australia;

a period prior to the five years during which the applicant was present in Australia, or ordinarily resident in Papua or New Guinea before their independence or in the independent state of Papua New Guinea between 16 September 1975 and 16 September 1978;

in case of hardship or disadvantage to an applicant if his application is rejected, the period of his lawful residence in Australia including Norfolk Island and Cocos (Keeling) Islands, for example as a temporary resident.

Existing ministerial discretion to grant citizenship notwithstanding the requirements of section 13 (1) is retained in section 13 (9). The most important of these are powers to grant citizenship to a spouse, widow or widower of an Australian citizen, and to persons under the age of 18 years. New section 13 (11 ) sets out specified situations where during a specified period of time, powers to grant a certificate of citizenship under section 13 are excluded. Clause 11 also inserts new section 14 to enable the Minister to defer consideration of an application for a maximum period of 12 months, where an applicant would be likely to satisfy the requirements of section 13 at a later time.

Clause 12 amends section 15 to substitute two new pledges of Australian citizenship for the existing oath or affirmation of allegiance to enable the pledge to be taken either before or after a certificate of citizenship is issued and to require that those who are empowered to administer the pledge are themselves Australian citizens. As I have already stated, applicants can choose a secular-based or a religious-based pledge as set out in Schedule 1.

Clause 13 repeals existing section 17 and substitutes new provisions to the effect that a person, being an Australian citizens of 18 years of age, will cease to be an Australian citizen where an act is committed-whether inside or outside Australia, but other than marriage-specifically for the purpose of acquiring a foreign nationality or citizenship. But where that Act was done under duress or unwittingly, clause 17 provides that the person may, at the discretion of the Minister, resume Australian citizenship lost under the new section.

Clause 15 amends section 21 on deprivation of citizenship. Under section 21, as to be amended, the Minister will have power to deprive a person of Australian citizenship on the basis of not only conviction under section 50 of the Act, but also of conviction of an offence committed before the grant of a certificate of citizenship for which a sentence carries at least 12 months' imprisonment. The Minister may exercise this power only where he considers that it would be contrary to the public interest for that person to retain Australian citizenship . Clause 15 also inserts an interpretative provision to take into account sub- section 19B (1) of the Crimes Act 1914 on conditional release of offenders without proceeding to conviction. The powers of deprivation of citizenship are made subject to Australia's international obligations to prevent statelessness, to which clause 20 of the Bill gives effect.

Clause 16 amends section 23 dealing with children of persons who lose or are deprived of citizenship. Paragraphs 16 (a) to 16 (f) amend sub-sections 23 (1) and (2) of the Act to effect formal amendments and to remove discriminatory references. Paragraph 16 (g) inserts a new sub-section to ensure that a child would not lose Australian citizenship under sub-sections 23 (1) or 23 (2) where another responsible parent of the child is and continues to be an Australian citizen, or, if that other responsible parent dies while an Australian citizen, at any time after the death of that other responsibile parent. The remaining clauses, with the exemption of clause 36, are of a technical nature or consequential upon other amendments.

Clause 36 inserts new section 52A into the Act to confer determinative jurisdiction to the Administrative Appeals Tribunal to review certain categories of decisions on merits under the Act. At present, there is no such right of review. The new approach is consistent with this Government's commitment to protect individuals' right to fair and equitable treatment by government agencies. The AAT review will, in my view, not only enhance the quality of citizenship decisions but also ensure that justice is done and is seen to be done in individual cases.

Under new section 52A, the AAT will not only review on merit, but will also have power to substitute its own decision for the decision complained of. The following decisions are subject to this review:

Decisions refusing the grant of citizenship under section 13;

Decisions under sub-section 23D (1), refusing registration for citizenship purposes, in favour of a person who was born in Australia and who is not and has never been a citizen of any country;

Decisions under section 18, refusing renunciation of Australian citizenship, except decisions relating to sub-section 18 (5) which deals with the refusal in time of war;

Decisions under sub-section 21 (1) depriving a person of his Australian citizenship, or under sub-section 23 (2) relating to children of persons who are deprived of citizenship;

Decisions under section 47 relating to amendments of a certificate of Australian citizenship;

Decision under section 23A and 23B relating to resumption of citizenship by children of persons who ceased to be Australian citizens under the repealed Nationality and Citizenship Act 1948-1955; and

Decisions under sub-section 23AA (2) refusing resumption of Australian citizenship by persons who lost their Australian citizenship under section 17, which I have referred to above.

As only permanent residents are eligible to apply for citizenship under sub- section 13 (1), rights to AAT review of decisions under the sub-section are confined to them. However, any person who is affected by any other decision under the above-mentioned sections is entitled to review by the AAT. New section 52B imposes a duty on the decision-maker to advise the person who is affected by such a decision of that person's right to review by the AAT. Indeed, honourable members will notice that where appropriate throughout the Bill, new provisions are inserted to require decision-makers to notify affected persons of their decision. These include the following new sub-sections: 13 (12) and 14 (3) in clause 11; 21 (3) in clause 15; 23 (4) in clause 16; and 23D (2) in clause 20. Honourable members will also notice that penalties for offences under the Act and regulations, that is to say, section 48, 49, 50 and 53 (J), have been revised to be consistent with the levels of penalty for comparable offences in other legislation of the Commonwealth.

We recognise that many of the proposed changes have profound significance for the Australian community and for the States. I therefore propose that this Bill will now be introduced to await debate in the autumn sittings. This will give time for the States and migrant organisations to express their latest views to the Government on the proposed changes. The proposed changes affect almost every aspect of the Act in some way. The requirements to be met for acquiring Australian citizenship both in Australia and overseas will be significantly changed. It is important that these changes be publicised to ensure that they are known to as many people as possible and that people are not adversely affected by not being aware of the new requirement. Sixty thousand dollars has been allocated to produce information brochures and other material setting out the changes.

I impress upon honourable members that citizenship plays a key part in the personal and public lives of all Australians. Citizenship brings with it a commitment to Australia on the part of the citizen. It also gives the citizen an entitlement to a range of rights and privileges. Over recent years honourable members on both sides of the House have shown a strong wish to reform the Citizenship Act to overcome anomalies and to remove unreasonable impediments to acquiring Australian citizenship. Both sides of the House have acknowledged that in this way many of those permanent residents of Australia who have not secured Australian citizenship are likely to be encouraged to do so. In the past there has been a high level of bi-partisanship over both the need for reform and the direction which such reforms should take. I appeal to all honourable members to recognise the importance of these measures to Australians and would-be Australians and to consider the amendments to the legislation in a constructive and far-sighted way.

We are a most fortunate nation, the only single nationality on earth to possess a complete continent. We have developed a multicultural society to share that continent. But while we encourage individuals within that multicultural society to retain various cultural and social links with countries of origin, we believe that multiculturalism must offer equal oportunity to all within that society. We wish no-one to be disadvantaged or to suffer discrimination as a result of multiculturalism. These long overdue improvements to Australian citizenship legislation which offer encouragement and incentive to those eligible to attain and enjoy the benefits of Australian citizenship are completely commensurate with this philosophy. I commend the Bill to the House.

Debate (on motion by Mr Hodgman) adjourned.