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Thursday, 30 May 2013
Page: 4522


Mr BRENDAN O'CONNOR (GortonMinister for Immigration and Citizenship) (09:27): I move:

That this bill be now read a second time.

The Australian Citizenship Amendment (Special Residence Requirements) Bill 2013 provides the Minister of Immigration and Citizenship with a power to apply alternative residence requirements to certain applicants for citizenship by conferral. It acknowledges the benefits that these people bring to Australia and provides them with a pathway to citizenship.

In 2009, the government recognised the special needs of two sets of people who were unable to meet the general residence requirement of 'four years lawful stay' in Australia, including the final 12 months before application for citizenship as a permanent resident. These two groups of people were those who need to be an Australian citizen to engage in specified activities of benefit to Australia (pursuant to section 22A of the Australian Citizenship Act 2007 (the act)), and those whose work requires them to travel frequently outside of Australia (section 22B of the act).

As of March 2013, section 22A had been used 14 times and section 22B had been used 84 times since September 2009. It has become apparent, however, that they do not adequately cover the field. The bill addresses this gap.

Alternative residence requirement

The bill proposes to give the minister a personal, non-compellable discretionary power to substitute an alternative residence requirement in both sections 22A and 22B.

In relation to section 22A, the applicant must continue to meet the initial requirements of the section, which are that:

they seek to engage in an activity specified in a legislative instrument;

their engagement in that activity would be of benefit to Australia;

they need to be an Australian citizen in order to engage in that activity;

there is insufficient time for them to satisfy the general residence requirement; and

the head of a specified organisation or a person holding a senior position in that organisation, has given the minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity.

In relation to section 22B, the applicant must meet the following initial requirements:

they are engaging in a kind of work, specified in the legislative instrument, which requires them to regularly travel outside of Australia;

they have engaged in that work for at least two of the four years immediately prior to application;

they regularly travelled outside of Australia for the whole or part of that four-year period prior to application; and

to be eligible for the discretion, the applicant must be engaged in a kind of work of benefit to Australia.

The new discretion provides that the minister could, in writing, determine that the following alternative requirements apply instead of the usual special residence requirements:

the applicant was present in Australia for at least 180 days during the two years prior to application;

the applicant was a permanent resident throughout the 90 days immediately prior to application; and

the applicant was not present in Australia as an unlawful citizen at any time during 180 days immediately prior to application.

In common with all of the other residence requirements in the Citizenship Act, the bill provides that a person cannot satisfy the alternative residence requirement if, at any time during the two years prior to application, the person was imprisoned or confined to a psychiatric institution by order of a court in connection with proceedings for an offence against Australian law. The bill, however, maintains the minister's discretion to decide that this restriction does not apply if it would be unreasonable in the circumstances of the applicant.

In order to reinforce the importance of presence in Australia as a way of understanding the Australian way of life and the commitment made through the citizenship pledge, the applicant must give the minister an undertaking in writing that, if they acquire citizenship through the exercise of the special power:

they will be ordinarily resident in Australia throughout the two years following acquisition of citizenship;

they will be physically present in Australia for at least 180 days during that two year period; and

they understand that their citizenship can be revoked by the minister if they do not comply with this undertaking.

The 'ordinarily resident' criteria ensure that those who obtain citizenship in these special circumstances genuinely have their home or permanent abode in Australia, and that absences from Australia are only temporary in nature. For example, a defence scientist who spends extended periods of time outside Australia for the purpose of their work, but who spends at least 180 days in the two year period after acquiring citizenship in Australia and whose home base is here, will generally be assessed as ordinarily resident in Australia. However, a defence scientist whose home base is in a foreign country, and who is in Australia for less than 180 days, would not be fulfilling their commitment to Australia and would not be considered to be ordinarily resident in Australia.

This commitment is not unduly restrictive; it requires the new citizen to spend approximately one-quarter of their time physically present in Australia. This allows sufficient flexibility for new citizens, such as elite athletes and professionals, to spend time abroad and still maintain their citizenship.

Procedural requirements

To reinforce what a great privilege is being extended to an applicant through the alternative residence requirements, the minister's power cannot be delegated nor can the minister be compelled to use this power, whether or not somebody has requested it.

To ensure transparency, the bill provides that if the minister exercises the power to apply the alternative residence requirements in favour of an applicant, and the applicant becomes an Australian citizen as a result, the minister must table in each house of parliament a statement that the minister has exercised the power and sets out the reasons for so doing, including why the minister considers that the engagement in that activity or kind of work by the person would be of benefit to Australia. To protect the privacy of the applicant, that statement is not to include the name of the applicant.

Revocation

Australian citizenship is not to be taken lightly. If, therefore, a person acquires citizenship through the minister's use of the new discretion, they must comply with their undertaking to be resident in Australia for the specified period of time after acquiring citizenship. If they do not honour this commitment, the bill provides that the minister can personally revoke their citizenship. The minister can also require the person to surrender any certificate of Australian citizenship which they have in their possession.

If the person is a responsible parent of a child aged under 18 at the time, the bill also provides that the minister can revoke the child's citizenship. However, this cannot be done if the child has another responsible parent who is an Australian citizen or that responsible parent who was an Australian citizen has died.

In order to honour Australia's commitments under the 1954 and 1961 United Nations Conventions on Statelessness, the bill provides that the minister must not revoke the citizenship of either the main applicant or their child if such revocation would render the person stateless.

Other eligibility requirements for citizenship

The minister must be satisfied that the applicant meets the other requirements in subsections 21(2), (3) or (4) of the act. Those subsections cover such matters as their age and the requirement that the applicant be of good character. Applicants meeting the alternative residence requirement must also pass the citizenship test.

Review of decisions

The bill provides that the Administrative Appeals Tribunal cannot review a personal decision of the minister in relation to whether the alternative residence requirements apply, nor can it make such a decision on its own account. Such powers would be inappropriate because the minister alone can exercise the discretion as to whether those alternative residence requirements have been met, as well as the other relevant requirements including those relating to the character and identity of the applicant.

These decisions will be subject to judicial review, and to parliamentary scrutiny due to the tabling requirements where the power has been exercised.

Legislative instrument

A legislative instrument under section 22C of the act specifies the activities which are of benefit to Australia covered by section 22A, and the kinds of work covered by section 22B. I have signed a new legislative instrument which extends the coverage of these provisions. The new instrument will come into effect the day after it is registered.

Because the provisions in section 22A are limited to those who need Australian citizenship to carry out their activities, the relevant list is limited to those who require a high-level security clearance to work with the Commonwealth and elite athletes in a range of sporting competitions. The new instrument will include international cricket competition as a specified activity and adds Cricket Australia to the list of organisations who may support an application.

The Gillard government recognises that certain other people make a great contribution to Australia, even if they do not require citizenship to do so. We wish to assist them with the difficulties they face in becoming eligible for citizenship due to their work-related travel. Therefore, the new instrument extends the category of people covered by section 22B, to include:

Scientists employed by an Australian university and undertaking research and development of benefit to Australia, or employed by CSIRO or a medical research institute;

Medical specialists, internationally renowned in their field, who are fellows of a listed Australian medical college;

Writers or persons engaged in the visual or performing arts who are holders of, or have held, a distinguished talent visa; and

Chief executive officers and executive managers of an S&P/ASX All Australian 200 listed company.

The decision to include a category of persons within the legislative instrument is an important one and should not be taken lightly but the government should be open to broadening its scope if there is a legitimate reason to do so.

Conclusion

In conclusion, the proposed amendments would give the minister a discretion to provide a pathway to citizenship to a very small number of people in very exceptional circumstances, where their becoming a citizen would be of benefit to Australia. Australia should be proud to call these people their own

I commend this bill to the chamber.

Debate adjourned.