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2004-2005-2006

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

AUSTRALIAN CITIZENSHIP BILL 2005

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs,

The Honourable Andrew Robb AO MP)

 

AMENDMENTS TO THE AUSTRALIAN CITIZENSHIP BILL 2005

 

 

OUTLINE

 

The purpose of these amendments to the Australian Citizenship Bill 2005 (“the Bill”) is to respond to Parliamentary Committee reports, implement policy changes, and rectify or clarify the drafting of certain provisions.

 

In its report tabled on 27 February 2006, the Senate Legal and Constitutional Legislation Committee (the Senate Committee) made a number of recommendations in respect of the Bill.   These amendments seek to address certain of the Committee’s concerns. In particular, the amendments will:

 

·          include a substantive provision which provides that a person who is a citizen under the Australian Citizenship Act 1948 is a citizen for the purposes of the new Act;

·          include simplified outlines explaining the operation of various parts of the Bill;

·          limit exclusion from citizenship on national security grounds, in respect of stateless people, to applicants who have been convicted of a national security offence in accordance with the Convention on the Reduction of Statelessness ;

·          clarify when a child may make an application in his or her own right and when an application may be considered as part of the application of a responsible parent

  • maintain all existing review rights under the Australian Citizenship Act 1948 by allowing people who apply for citizenship by conferral on the grounds of statelessness to have a right of review of a decision on that application;

·          amend the Preamble to recognize that Australian citizenship represents “full and” formal membership of the community of the Commonwealth of Australia; and

·          make a number of changes to the personal identifier provisions, resulting from a review of the provisions in the Bill and consultations with the Office of the Privacy Commissioner.

 

The amendments also implement the Government’s response to a recommendation made by the House of Representatives Standing Committee on Family and Human Services in its inquiry into the adoption of children from overseas. The Bill will allow for children adopted overseas by Australian citizens, under full and permanent Hague Convention arrangements to be registered as Australian citizens.

 

Amendments will also give effect to the following policy changes:

 

·          changes to the residence requirements to require applicants to have been in Australia during the four years before making their application otherwise than as an unlawful non-citizen, with the last 12 months before the application being spent as a permanent resident (subject to certain exceptions);

·          include a discretion, similar to that available for spouses and de facto spouses of Australian citizens, for people granted permanent residence as the interdependent partner of an Australian citizen to count certain time spent overseas as a permanent resident as time spent in Australia..

 

In addition, amendments will:

 

  • remove the specification that a written notice must be given to people requesting evidence of their Australian citizenship;
  • explicitly state that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to be so approved;
  • make subclause 19(2) a stand alone provision (subclause 19(2) makes it absolutely clear that a person born overseas is never taken to be a citizen unless they had an Australian citizen parent at the time of their birth); and
  • make minor technical amendments.

 

 

FINANCIAL IMPACT STATEMENT

 

The proposed amendments will not have a financial impact.

 



AMENDMENTS TO AUSTRALIAN CITIZENSHIP BILL 2005

 

 

NOTES ON AMENDMENTS

 

Amendment (1) - Preamble

 

This amendment provides a minor amendment to the Preamble to include the words “full and” before “formal”.  This is in response to the Senate Committee’s recommendation that the Preamble recognise that Australian citizenship represents “full and formal” membership of the community of the Commonwealth of Australia.

 

Amendment (2) - Simplified Outline

 

This is a technical amendment at Clause 2, page 2 (table item 2), omitting “3”, and substituting “2A”.   It follows as a consequence of further amendments to include a simplified outline at clause 2A of the Bill.

 

Amendment (3) - Simplified Outline

 

This amendment provides a simplified outline of the Bill.   This is inserted in accordance with the recommendations of the Senate Committee’s report on the Bill.  

 

The outline covers becoming an Australian citizen; ceasing to be an Australian citizen; and evidence of Australian citizenship.

 

Becoming an Australian citizen

 

The outline states that that there is a range of ways to become an Australian citizen. It briefly describes how a person may become a citizen by acquiring citizenship automatically through birth; or by being a citizen by descent, by adoption (in accordance with the Hague Convention), or by conferral.  The outline also notes that a person may resume their Australian citizenship.

 

In addition, the outline states that if a person was a citizen under the Australian Citizenship Act 1948  immediately before commencement of the new legislation, they will continue to be a citizen.

 

The outline notes that the Minister must be satisfied of an applicant’s identity and that the Minister may be required to refuse an application on national security grounds .

 

Ceasing to be an Australian citizen

 

The outline specifies that there are a number of ways to cease to be an Australian citizen: by renunciation; by revocation by the Minister in certain circumstances where the person did not automatically become an Australian citizen; and in other less common ways. 

 

 

 

Evidence that a person is an Australian citizen

 

The outline also specifies that an application can be made to the Minister for evidence of Australian citizenship.  It directs the reader to Division 4 of Part 2.

 

Amendment (4) - Simplified Outline

 

This is a technical amendment at Clause 3, page 3, omitting “3”, and substituting “2A”.   It follows as a consequence of further amendments to include a simplified outline.

 

Amendment (5) - Personal Identifiers

 

This is a technical clarifying amendment which inserts the words “provided under Division 5 of Part 2” after the words “is a personal identifier” in the definition of ‘disclose’ in clause 3.

 

Amendment (6) - Personal Identifiers

 

This amendment inserts the word “unauthorised” after the word “provide” in the definition of “disclose” in clause 3 of the Bill. The amendment makes clear the intention that providing an authorised access to a personal identifier (under clause 42) is not a ‘disclosure’ within the meaning in clause 43 of the Bill (which makes it an offence to disclose identifying information where the disclosure is not a permitted disclosure).  However, the provision of an unauthorised access to a personal identifier (i.e. an access not authorised by clause 42) is a disclosure, and may be an offence under clause 43 if the disclosure is not a permitted disclosure. 

 

Amendment (7) - Personal Identifiers

 

This is a technical amendment at Clause 3 by adding a note at the end of the definition of disclose. 

 

The note advises the reader that section 42 deals with the subject of authorised access to identifying information.

 

Amendment (8) - Personal Identifiers

 

This amendment inserts a definition of entrusted person” into clause 3, to mean:

                     (a)  the Secretary of the Department; or

                     (b)  an APS employee in the Department; or

                     (c)  a person engaged under section 74 of the Public Service Act 1999 by the Secretary of the Department; or

                     (d)  a person engaged by the Commonwealth, the Minister, the Secretary of the Department, or by an APS employee in the Department, to do work for the purposes of this Act or the regulations or of the Migration Act 1958 or the regulations made under that Act.

 

The reason for amendment is to provide a definition of the term ‘entrusted person’. This term is used in the amendments made by amendments (66) and (73). Those amendments provide exceptions to the offences in clause 43 (disclosing identifying information) and 44 (unauthorised modification or impairment of identifying information). Generally speaking, the exceptions apply where an entrusted person lawfully discloses identifying information to a person who is not an entrusted person. No offence is committed if the information is further disclosed, or impaired or modified, by a person who is not an entrusted person. In many cases, the actions of such a person will be governed by the Privacy Act 1988 (the Privacy Act). For example, once the Department of Immigration and Multicultural Affairs has lawfully disclosed a photograph of a citizenship applicant to the Australian Federal Police (AFP), the way in which the AFP then deals with that photograph may be governed by the Privacy Act, rather than by the offence provision in clause 43. Any disclosure of identifying information by an entrusted person will be an offence under clause 43 and not lawful if it is not a permitted disclosure, as will a disclosure (other than a permitted disclosure) by an AFP officer where that information was not lawfully disclosed to the AFP.

 

Amendment (9) - Personal Identifiers

 

This amendment inserts the words “provided under Division 5 of Part 2” after “identifier” in paragraph (a) of the definition of “identifying information” in clause 3 of the Bill.

 

The amendment clarifies that the definition of “identifying information” applies only to personal identifiers which have been provided under Division 5 of Part 2 of the Act, and not to any personal identifier (i.e. any photograph or signature). The purpose of this amendment is to put it beyond doubt that the offences in clauses 42, 43 and 44 apply only where the identifying information in question is a personal identifier provided under Division 5 of Part 2 of the Bill (in particular, clause 40), or is information derived from such a personal identifier.

 

Amendment (10) - Personal Identifiers

 

This amendment inserts the word “such” after “from any” in paragraph (b) of the definition of “identifying information” in clause 3 of the Bill.

 

The amendment clarifies that the definition of “identifying information” applies only to any meaningful identifier derived from a personal identifier provided under Division 5 of Part 2 of the Act, and not from any personal identifier (i.e. any photograph or signature). The purpose of this amendment is to put it beyond doubt that the offences in clauses 42, 43 and 44 apply only where the identifying information in question is a personal identifier provided under Division 5 of Part 2 of the Bill (in particular, clause 40), or is information derived from such a personal identifier.

 

Amendment (11) - Personal Identifiers

 

This amendment inserts the word “such” after “analysing any” in paragraph (c) of the definition of “identifying information” in clause 3 of the Bill.

 

The amendment clarifies that the definition of “identifying information” applies only to any record of a result of analysing a personal identifier provided under Division 5 of Part 2 of the Act, and not any personal identifier (i.e. any photograph or signature). The purpose of this amendment is to put it beyond doubt that the offences in clauses 42, 43 and 44 apply only where the identifying information in question is a personal identifier provided under Division 5 of Part 2 of the Bill (in particular, clause 40), or is any record of a result of analysing such a personal identifier.

 

Amendment (12) - Personal Identifiers

 

This amendment inserts the word “such” after “from any” in paragraph (c) of the definition of “identifying information” in clause 3 of the Bill.

 

The amendment clarifies that the definition of “identifying information” applies only to any record of a result of analysing any meaningful identifier derived from a personal identifier provided under Division 5 of Part 2 of the Act, and not from any personal identifier (i.e. any photograph or signature). The purpose of this amendment is to put it beyond doubt that the offences in clauses 42, 43 and 44 apply only where the identifying information in question is a personal identifier provided under Division 5 of Part 2 of the Bill (in particular, clause 40), or is any record of a result of analysing any meaningful identifier derived from such a personal identifier.

 

Amendment (13) - Personal Identifiers

 

This amendment inserts the word “such” after “any” in subparagraph (d)(i) of the definition of “identifying information” in clause 3 of the Bill.

 

The amendment clarifies that the definition of “identifying information” applies only to any other information derived from a personal identifier provided under Division 5 of Part 2 of the Act, and not from any personal identifier (i.e. any photograph or signature). The purpose of this amendment is to put it beyond doubt that the offences in clauses 42, 43 and 44 apply only where the identifying information in question is a personal identifier provided under Division 5 of Part 2 of the Bill (in particular, clause 40), or is information derived from such a personal identifier.

 

Amendment (14) - Personal Identifiers

 

This amendment inserts the word “such” after “from any” in subparagraph (d)(ii) of the definition of “identifying information” in clause 3 of the Bill.

 

The amendment clarifies that the definition of “identifying information” applies only to any other information derived from any meaningful identifier derived from a personal identifier provided under Division 5 of Part 2 of the Act, and not from any personal identifier (i.e. any photograph or signature). The purpose of this amendment is to put it beyond doubt that the offences in clauses 42, 43 and 44 apply only where the identifying information in question is a personal identifier provided under Division 5 of Part 2 of the Bill (in particular, clause 40), or is information derived from any meaningful identifier derived from such a personal identifier.

 

 

Amendment (15) - Stateless persons

 

This amendment inserts a definition of “ national security offence” into clause 3 of the Bill, to mean:

                     (a)  an offence against Part II or VII of the Crimes Act 1914 ; or

                     (b)  an offence against Division 72 of the Criminal Code ; or

                     (c)  an offence against Part 5.1, 5.2 or 5.3 of the Criminal Code ; or

                     (d)  an offence against the Australian Security Intelligence Organisation Act 1979 ; or

                     (e)  an offence against the Intelligence Services Act 2001 ; or

                      (f)  an offence covered by a determination in force under section 6A.

 

The purpose of this amendment is to provide a definition for the term “national security offence”. Amendments (26), (47) and (55) make amendments to clauses 12, 24 and 30 of the bill respectively, which use the term. Amendments (17)( (inserting new clause 6A into the bill) and (30) (inserting new clause 19D into the Bill) also use the term.

 

Amendment (16) - Current Citizens remain Australian Citizens

 

Clause 4 of the Bill sets out who is an “Australian citizen” for the purposes of the Bill. This amendment includes a specific reference to people who are Australian citizens at the time of commencement of the legislation. As amended, clause 4 will provide that such a person is an “Australian citizen” for the purposes of the Bill.

 

The amendment addresses a recommendation of the Senate Committee in its report on the Bill. The Senate Committee recommended that the Bill include a substantive provision to provide that a person who is a citizen under the Australian Citizenship Act 1948 is a citizen for the purpose of the new legislation.  The continuing status of people who are Australian citizens before commencement is also provided for in Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Bill 2005 .

 

Amendment (17) - Stateless persons

 

This amendment inserts new clause 6A after clause 6 in the Bill. New clause 6A relates to national security offences. 

 

Subclause 6A(1) provides that the Attorney-General may, by legislative instrument, determine that:

 

(a)     an offence against a specified provision of a specified Australian law or a specified foreign law; or

 

(b)    an offence against an Australian law or a foreign law involving specified conduct;

 

is a national security offence for the purposes of paragraph (f) of the definition of

national security offence in section 3.

It also provides at subclause (2) that a determination made under subsection (1)

applies in relation to:

 

(a)     applications made under this Act after the determination takes effect; and

 

(b)    applications made under this Act before the determination takes effect that have not been decided before the determination takes effect.

 

Amendments (26), (47) and (55) make amendments to clauses 12, 24 and 30 of the bill respectively, which use the “national security offence”. Amendments (17) (inserting new clause 6A into the bill) and (30) (inserting new clause 19D into the Bill) also use the term. All people who apply for citizenship (whether by descent, by adoption or by conferral), or who seek to resume citizenship, must meet requirements relating to national security.

 

The definition of “national security offence” in clause 3 (as amended by amendment (15)) expressly states that certain offences against Australian laws are “national security offences”, but allows further offences to be included by a determination under clause 6A (inserted by this amendment). This determination power will provide for further offences against Australian law and offences against overseas laws to also be taken into account.

 

The making of such determinations would involve consideration of the circumstances of the person’s conduct; the nature of the offence; and if it is a foreign offence, whether the conduct constituting the offence would constitute a national security offence under Australian law if it were to occur in Australia.

 

New subclause 6A(2) makes clear that a determination under subclause 6A(1) (that an offence is a national security offence) applies not just to people who apply for citizenship after the determination takes effect, but also to people who apply before the determination takes effect, where their applications are decided after that date. The reason for this is that it would be very difficult to foresee all offences, particularly overseas offences, which should be specified as national security offences. When a stateless person applies for citizenship, and that person has been convicted overseas of an offence relevant to national security, the Attorney-General may make a determination that the offence for which the person was convicted is a national security offence for the purposes of the definition in clause 3.  

 

Amendment (18) - Personal Identifiers

 

This amendment makes a minor wording change to paragraph (c) of subclause 10(2) of the Bill, to omit the words “will promote one or more” and substitute the words “is necessary for either or both”. Paragraph (c) provides that the Minister must be satisfied of certain matters before the Governor-General may make regulations prescribing an identifier as a “personal identifier” for the purposes of the Bill.

 

The wording change results from consultations on the personal identifier provisions of the Bill with the Office of the Privacy Commissioner, following a recommendation by the Senate Committee in its report on the Bill that the personal identifier provisions be reviewed.

Amendment (19) - Personal Identifiers

 

This amendment omits subparagraph (2)(c)(iii) from clause 10 to the Bill.

 

Subclause 10(2) of the Bill provides that the Minister must be satisfied of certain matters before the Governor-General may make regulations prescribing an identifier as a “personal identifier” for the purposes of the Bill. Subparagraph (c)(iii) provided that the Minister must be satisfied that the obtaining the identifier would promote the purpose of “complementing anti-people smuggling measures”.

 

The removal of subparagraph (iii) results from consultations on the personal identifier provisions of the Bill with the Office of the Privacy Commissioner, following a recommendation by the Senate Committee in its report on the Bill that the personal identifier provisions be reviewed.

 

Amendment (20) - Simplified Outline

This amendment inserts a new clause 11 A before clause 12.   It provides a simplified outline for Subdivision 1. Subdivision 1 deals with automatic acquisition of Australian citizenship.  

The outline indicates that the most common way that a person may become an Australian citizen is by birth. The outline makes clear that citizenship by birth occurs where a person is born in Australia and has a parent who is an Australian citizen or a permanent resident at the time of the birth.

 

The outline also mentions the less common ways of becoming an Australian citizen under Division 1, with reference to the relevant provisions, that is:

 

•           by being born in Australia and by being ordinarily resident in Australia for the next 10 years (section 12);

•           by adoption (section 13);

•           by being an abandoned child (section 14); and

•           by incorporation of territory (section 15).

 

Amendment (21) - Adoption

This is a technical amendment to clause 13 to omit “of”, and substitute “in force in”. Clause 13 deals with citizenship by adoption. Paragraph (a) provides that a person is an Australian citizen if the person is adopted under a law of a State or Territory. This amendment will restore the wording to “adopted under a law in force in” a State or Territory which is the wording used in the Australian Citizenship Act 1948 .

 

Amendment (22) - Simplified Outline

This amendment inserts a new clause 15A before clause 16.   It provides a simplified outline for Subdivision A of Division 2. Subdivision A deals with citizenship by descent.  

The outline describes the various ways a person may be eligible to become an Australian citizen by descent.  It specifies that a person may be eligible to become an Australian citizen under Subdivision A in two situations:

 

•           by birth outside Australia on or after 26 January 1949 where the person had a parent who was an Australian citizen at the time of that person’s birth (the reader is referred to subsection 16(2)); or

 

•           by birth outside Australia or New Guinea before 26 January 1949 where the person had a parent who was an Australian citizen on 26 January 1949 (the reader is referred to subsection 16(3)).

 

The outline advises that an application must be made to become an Australian citizen, and notes that the Minister must approve or refuse the application.

 

Readers are further advised that people must be eligible to be an Australian citizen to be so approved, and that the Minster may be required to refuse an application on grounds relating to:

 

•           non-satisfaction of identity - subsection 17(3); or

•           national security - subsections 17(4) to (4B); or

•           cessation of citizenship - subsection 17(5).

 

The outline specifies that registration will take place if the Minister approves the application for citizenship.  

 

It also states that a person will not become an Australian citizen even if the Minister approves the application unless a parent of that person was an Australian citizen at a particular time and refers readers to section 19A. 

 

Amendment (23) -     Citizenship for persons adopted in accordance with the                                       Hague Convention

 

This amendment inserts “or Subdivision AA” after “Subdivision” in paragraph(b) of subclause 16(2) of the Bill. 

 

New Subdivision AA outlines the requirements for citizenship for people adopted in accordance with the Hague Convention on Intercountry Adoption.

 

Clause 16 of the Bill deals with citizenship by descent. The amendment ensures that the restrictions on citizenship by descent for children born to people who acquired citizenship under Subdivision AA are to be the same as those applying to children born to people who acquired citizenship by descent under Subdivision A (or the equivalent provisions in the Australian Citizenship Act 1948 ).  Those restrictions are that the parent spent at least two years in Australia (except as an unlawful non-citizen), unless the applicant is not a national or citizen of any country at the time of application and has never been such a national or citizen.

 

Amendment (24) - Citizenship approval decisions

 

This amendment adds new subclause (1A) to clause 17. Subclause 17(1) requires the Minister to approve or refuse an application for citizenship by descent.

 

The purpose of this new subclause is to put it beyond doubt that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subclause 16(2) or (3).  

 

Amendment (25) - Citizenship approval decisions

 

This is a technical amendment to subclause 17(2), omitting the words “be so approved”, and substituting “become an Australian citizen” under subsection 16(2) or (3)”.  

 

The amendment provides a clear link in the decision power (clause 17) to the provisions under which the person may be eligible to become a citizen by descent (subclauses 16(2) or (3)). .  

 

Amendment (26) - Stateless persons

 

This amendment omits subclause 17(4) and inserts new subclauses 17(4), (4A) and (4B). The amendments relate to the national security requirements for approval of a person becoming an Australian citizen by descent.

 

New subclause (4) mirrors subclause 17(4) in the Bill, but provides that the provision applies only if the person is not covered by subsection 4(B). The purpose of this amendment is to provide specific requirements regarding national security for stateless people (i.e. people covered by new subclause (4B)), and exclude such people from having to meet the standard national security requirement in subclause 17(4).

 

New subclause (4A) sets out the national security requirement for stateless people (i.e. people covered by subclause (4B). It provides that if a person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence. The term “national security offence” is defined at clause 3 of the Bill, as amended by amendment (15). The definition includes several listed offences, and other offences which may be determined by the Attorney-General under new clause 6A (inserted by amendment (17)). New clause 6A makes it clear that offences determined by the Attorney-General before an application is made or after an application for citizenship is made, but before it is decided, will apply to that application.

 

New subclause 17(4B) sets out the people to whom subclause (4A) will apply. It will apply to a person who, at time of the citizenship application under clause 16, is not a national or citizen of any country, and who, at the time of person’s birth outside of Australia, had a parent who was an Australian citizen.

 

The purpose of these amendments is to address a recommendation made by the Senate Committee in its inquiry into the Bill. The Senate Committee recommended that clause 17 be amended so as to limit the exclusion from citizenship on national security grounds in the case of a stateless person to applicants who have been convicted of a security related offence in accordance with the Convention on the Reduction of Statelessness (as opposed to merely being subject to an adverse or a qualified security assessment). 

 

Amendment (27) - When a person does not become a citizen by descent

 

This is a technical amendment to clause 19 omitting “(1)”. The amendment is consequential to amendment (28) which omits subclause 19(2) from the Bill.

 

Amendment (28) - When a person does not become a citizen by descent

 

This is a technical amendment omitting subclause 19(2). The content of this subclause is being inserted as a new stand-alone clause - clause 19A, by amendment (29), to highlight the importance of this provision.

 

Amendment (29) - When a person does not become a citizen despite the Minister’s approval

 

This amendment inserts a new clause 19A, after clause 19.

 

The effect of new clause 19A is the same as for subclause 19(2) of the Bill (omitted by amendment (28)). The purpose of putting the content into a stand-alone clause, rather than as a subclause to clause 19, is to highlight the importance of the provision.

 

New clause 19A (formerly subclause 19(2)) makes clear that a person does not become a citizen by descent if the person did not have a parent who was a citizen at the time of their birth (or a parent who became a citizen on 26 January 1949, for those applicants born before 29 January 1949).

 

Additional words have been inserted in new clause 19A to put it beyond doubt that this is case even where the Minister has approved the person becoming an Australian citizen.

 

For example, a person is approved as an Australia pursuant to clause 17, and registered as such, but it is later discovered that the person actually did not have a parent who was an Australian citizen at the time of their birth outside Australia. Such a person will not be, and never will have been, an Australian citizen.  

                       

This is an important provision and it should be able to be easily identified by readers.

 

Amendment (30) - Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption

 

This amendment inserts a new Subdivision AA—‘Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption’.

 

The purpose of this new Subdivision is to allow children adopted overseas by Australian citizens to become Australian citizens, in a similar way in which children born to Australian citizens overseas can become Australian citizens. The new provisions implement the Government’s response to a recommendation made by the House of Representatives Standing Committee of Family and Human Services in its inquiry into the adoption of children from overseas.

 

Clause 19(B) - Simplified Outline

 

New clause 19B is a simplified outline of new Subdivision AA. It outlines the eligibility requirements, specifying that a person may be eligible to become an Australian citizen if they are adopted outside Australia in accordance with the Hague Convention on Intercountry Adoption by at least one Australian citizen.

 

The outline states that a person must make an application to become an Australian citizen and that the Minister must approve or refuse the person becoming an Australian citizen.  A person must be eligible to be an Australian citizen to be approved and may be refused citizenship even if they are eligible. A person will be registered if the Minister approves the application to become an Australian citizen.

 

The outline also provides that the Minister may be required to refuse the application on grounds relating to non-satisfaction of identity, national security, or cessation of citizenship, and refers the reader to the relevant provisions (subclauses 19D(4), (5) and (8) respectively).

 

Clause 19C - Application and eligibility for citizenship

 

Clause 19C sets out how a person applies for citizenship by adoption and the eligibility criteria for such an applicant.

 

Subclause (1) provides that a person may make an application to the Minister to become an Australian citizen.

 

It includes an explanatory note referring the reader to section 46 which sets out application requirements noting that this may include the payment of a fee.

 

The eligibility criteria are set out at subclause (2) in paragraphs (a) to (g). 

 

Paragraph 19C(2)(a) requires the person to have been adopted in a Convention country. Subclause 19C(4) defines a Convention country to have the same meaning as in the Family Law (Hague Convention on Intercountry Adoptions) Regulations 1998 (the Intercountry Adoption regulations). The person must also have been adopted by at least one person who is an Australia citizen at the time of the adoption.

 

Paragraph 19C(2)(b) makes it a requirement that an adoption compliance certificate issued in the overseas country is in force for the adoption. Subclause 19C(4) defines adoption compliance certificate to have the same meaning as in the Intercountry Adoption regulations.

 

Paragraph 19C(2)(c) requires that the adoption is recognised and effective, under the Intercountry Adoption regulations, for the laws of the Commonwealth and each State and Territory.

 

Paragraph 19C(2)(d) requires that the legal relationship between the applicant and the individuals who were, immediately before the adoption, the applicant’s parents has been terminated.

 

Paragraphs 19C(2)(e) and (f) apply to situations where the adoptive parent or both adoptive parents are themselves citizens by descent or adoption. Paragraph (e) makes it a requirement that the adoptive parent must have spent at least two years in Australia (otherwise than as an unlawful non-citizen) prior to the application being made, if that parent acquired Australian citizenship by descent or by adoption. Paragraph (f) makes it clear that where both parents are citizens by descent or adoption, only one of those parents must satisfy this requirement.

 

These provisions mirror a similar requirement for applicants for citizenship by descent - their parent or parents must have spent at least two years in Australia if they themselves are citizens by descent or by adoption. The purpose of this requirement is to ensure that successive generations cannot continue to become citizens by descent or by adoption without each generation maintaining a link with Australia. 

 

Paragraph 19C(2)(g) makes it a requirement that if the applicant is aged 18 or over at the time of application, the Minister is satisfied that the applicant is of good character at the time of the Minister’s decision on the application. This reflects a similar requirement for all people applying for Australian citizenship.

 

Subclause 19C(3) sets out the requirement for certain applicants that at least one of their parents must have been present in Australia for a total period of at least two years at any time before the application is made. This requirement applies where the parent or parents who are Australian citizens have themselves obtained citizenship by descent. In such a case, the parent or at least one of the parents must meet the 2 years presence in Australia requirement. The requirement mirrors a similar requirement for applicants for citizenship by descent. It is designed to ensure that successive generations cannot continue to become citizens by descent or by adoption without each generation maintaining a link with Australia. 

 

Subclause 19C(4) contains definitions for the purposes of the clause, as follows:

 

-         adoption compliance certificate has the same meaning as in the Intercountry Adoption regulations;

 

-         Convention country has the same meaning as in the Intercountry Adoption regulations; and

 

-         Intercountry Adoption regulations means the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.

 

Clause 19D - Minister’s decision

 

Clause 19D outlines the responsibilities of the Minister in making a decision under Subdivision AA.

 

Subclause 19D(1) specifies that if a person makes an application under section 19C, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. The purpose of this subclause is to ensure that the Minister must act either way so that an outcome is achieved.

 

Subclause 19D(2) states that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 19C(2). The purpose of this subclause is to put beyond doubt that where a person is not eligible to become a citizen under subclause 19C(2), the application cannot be approved and must be refused.

 

Subclause 19D(3) states that the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 19C(2). The purpose of this subclause is to ensure that the Minister has the ability to refuse to approve a person becoming an Australian citizen despite the fact that the person is eligible.

 

Identity

 

Subclause 19D(4) states that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person.   There may be cases where identity is unclear or cannot be satisfactorily ascertained.  In these circumstances the Minister cannot approve the person becoming an Australian citizen.

 

A note is included at the end of this subclause referring the reader to Division 5 which contains the identity provisions.

 

National security

 

Subclauses 19D(5), (6) and (7) address the issue of national security. 

 

Subclause (5) applies to all applicants other than those to whom subclause 19D(7) applies (i.e. applicants who are stateless). It provides that the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment or a qualified security assessment in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 (ASIO Act)  that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

 

The terms “adverse security assessment” and “qualified security assessment” are defined in clause 3 of the Bill.

 

The purpose of this subclause is to ensure that the Minister must not approve a person becoming an Australian citizen where the person is the subject of an adverse security assessment or a qualified security assessment as described above.

 

A security assessment is reviewable under Part IV of the ASIO Act.  The review would be undertaken by the Security Appeals Division of the Administrative Appeals Tribunal (AAT).

 

Subclause 19D(6) sets out the national security requirement for stateless people (i.e. people covered by subclause (7)). It provides that if a person is covered by subparagraph (7)(b)(i) (i.e. stateless people born in Australia), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of either a national security offence, or an offence against an Australia law or a foreign law, for which the person was sentenced to at least 5 years imprisonment.

 

Subclause (6) further provides that if subparagraph (7)(b)(ii) applies to the applicant (i.e. stateless people born outside Australia who, at the time of their birth, had a parent who was an Australian citizen), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.

 

The term “national security offence” is defined at clause 3 of the Bill, as amended by amendment (15). The definition includes several listed offences, and other offences determined by the Attorney-General under new clause 6A (inserted by amendment (17)). New clause 6A makes it clear that offences determined by the Attorney-General either before or after an application for citizenship is made, but before it is decided, will apply to that application.

 

New subclause 19D(7) sets out the people to whom subclause (6) will apply. It applies to people who are not a national or citizen of any country and who either were born in Australia (subparagraph (7)(b)(i)), or were born outside Australia and, at the time of their birth, had a parent who was an Australian citizen (subparagraph (7)(b)(ii)).

 

These amendments flow from a recommendation made by the Senate Committee in its inquiry into the Bill. The Committee recommended that various provisions of the Bill be amended so as to limit the exclusion from citizenship on national security grounds in the case of a stateless person to applicants who have been convicted of a security related offence in accordance with the Convention on the Reduction of Statelessness, rather than exclusion on the basis of an adverse or qualified security assessment as provided for persons who are not stateless.  The amendments reflect the fact that the Convention requires this limitation where the applicant for citizenship had, at the time of their birth outside Australia, a parent who was an Australian citizen (Article 4); or where the person was born in Australia (Article 1). Consistent with the Convention, stateless people born in Australia should only be excluded from citizenship if convicted of a national security offence or convicted of an offence against an Australian law or foreign law and for which the person was sentenced to at least 5 years imprisonment. Persons born outside Australia, who at the time of their birth, had a parent who was an Australian citizen, should only be excluded from citizenship if convicted of a national security offence.

 

Cessation of citizenship

 

Subclause 19D(8) states that if the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

 

This subclause makes clear that people who cease to be Australian citizens are not eligible to resume citizenship for a period of 12 months from the day of cessation.   It is important that the privilege of Australian citizenship is not able to be resumed without due consideration by those who have renounced their citizenship or have ceased to citizens for some reason.

 

19E Registration

 

Subclause 19E specifies that the Minister must register a person in the manner prescribed by the regulations if the Minister approves the person becoming an Australian citizen.

 

19F Day citizenship begins

 

Subclause 19F provides that a person becomes an Australian citizen on the day on which the Minister approves the person becoming an Australian citizen.

 

Amendment (31) - Simplified outline

 

This amendment inserts a new clause 19G which contains a simplified outline of Subdivision B - Citizenship by conferral.

 

The outline sets out the eligibility requirements for Australian citizenship under this Subdivision B and refers readers to the relevant provisions for each situation, as follows:

 

•           the applicant satisfies the general eligibility criteria - subsection 21(2);

•           the applicant has a permanent physical or mental incapacity - subsection 21(3);

•           the applicant is aged 60 or over or has a hearing, speech or sight impairment - subsection 21(4);

•           the applicant is aged under 18 - subsection 21(5);

•           the applicant was born to a former Australian citizen - subsection 21(6);

•           the applicant was born in Papua - subsection 21(7); or

•           the applicant is stateless - subsection 21(8).

 

It advises that a person must make an application to become an Australian citizen and that the Minister must approve or refuse the applicant becoming an Australian citizen.

 

It also advises that a person must be eligible to be an Australian citizen to be approved and notwithstanding eligibility may still be refused citizenship.  The outline sets out the grounds upon which the Minister may be required to refuse the application, and the relevant provisions, as follows:

 

•           non-satisfaction of identity - subsection 24(3);

•           national security - subsections 24(4) to (4B);

•           non-presence in Australia - subsection 24(5);

•           offences - subsection 24(6); or

•           cessation of citizenship - subsection 24(7).

 

It also advises that the person may need to make the Pledge of Commitment to become an Australian citizen.

 

Amendment (32) - Citizenship approval decisions

 

This amendment omits the word “approves” in paragraph (a) of clause 20 of the Bill, and substitutes “decides under subsection 24(1) to approve”. This is a technical amendment making it clear that the power to approve a person becoming an Australian citizen is contained in subclause 24(1).

 

Amendment (33) - Stateless persons

 

This amendment omits subclause 21(8) and substitutes a new subclause 21(8) to the Bill. Subclause 21(8) applies to applicants who are stateless The amendment is technical in nature, ensuring the structure and language of the provision is consistent with that used elsewhere in the Bill as amended by these amendments. The amendment does not make any changes of substance to the subclause as originally drafted in the Bill

 

Amendment (34) - Residence requirement

 

This is an amendment to clause 22 in relation to the general residence requirement. 

 

It omits the present subclause 22(1) and substitutes new subclauses (1), (1A), (1B) and (1C).

 

New subclause 22(1) provides that, subject to the rest of the clause, a person satisfies the residence requirement (for the purposes of proposed section 21) if:

 

(a)     the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b)    the person was not present in Australia as an unlawful non citizen at any time during that 4 year period; and

(c)     the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

 

These provisions require the person to have been physically present in Australia for the entire period of 4 years immediately before the application is made. However subclause 21(1A) allows the person to have spent up to 12 months outside Australia during this 4 year period. The person may have been lawfully present in Australia as the holder of any kind of visa during this 4 year period, but cannot have been an unlawful non-citizen for any of this time.

 

In addition, the person must have been physically present in Australia as a permanent resident (defined in clause 5 of the Bill) for the entire 12 month period immediately before making the application. However subclause 21(1B) allows the person to have spent up to 3 months outside Australia during this period, provided the person was a permanent resident while overseas.

 

If a person has been an unlawful non-citizen at any time, that person will need to spend 4 years in Australia since last ceasing to be an unlawful non-citizen before meeting the residence requirement for citizenship.

 

These amendments reflect that Australian citizenship is a privilege not a right.

 

The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens.

 

The new requirements also recognise the changes in the migration programme over the years which have resulted in an increasing number of people spending significant periods of time in Australia as temporary residents prior to becoming permanent residents.



People who are permanent residents at the time of commencement of the legislation will be not be subject to these new residence requirements. Instead, they will be subject to the residence requirement as provided for in the Australian Citizenship Act 1948 , namely a minimum of two years permanent residence in Australia in the last five years, including at least 12 months in the last two years. This is provided for in an amendment to the Australian Citizenship (Transitionals and Consequentials) Bill 2005.



Overseas absences

 

Amendment (34) also inserts new subclauses 22(1A) and (1B) which allow applicants to spend some time overseas during the 4 year period immediately before making the application.

 

Subclause (1A) allows applicants to spend up to a total of 12 months outside Australia (either as one period of 12 months, or several periods totalling 12 months) during the 4 years immediately before making their application. The person will be taken to have been present in Australia for that time.

 

Subclause (1B) allows applicants to spend up to 3 months outside Australia (either as one period of 3 months, or several periods totalling 3 months) during the 12 months immediately before making their application provided they are permanent residents at the time. The person must have held a permanent visa during that time overseas. Subclause (1B) provides that the person is taken to have been present in Australia as a permanent resident for each period of absence.

 

Subclauses (1A) and (1B) reduce the complexity of the residential discretions in the Australian Citizenship Act 1948 , in which certain periods of time can be treated as periods of permanent residence in Australia.

 

Confinement in prison or psychiatric institution

 

Subclause 22(1C) provides that, subject to subsection (5A) (to be inserted by amendment (40)), the person does not satisfy paragraph 22(1)(a) if, at any time in the 4 years immediately before making the application, the person was confined in a prison, or confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law. 

 

Subclause 22(5A) (amendment (40)) gives the Minister a discretion to decide that subclause (1C) does not apply to a person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied it would be unreasonable for that provision to apply to the person.

 

The effect of subclause (1C) is that if a person has been confined as described in subclause (1C) at any time, that person will need to spend 4 years in Australia since last being released from that confinement before being eligible for citizenship unless the Minister exercises the discretion in subclause (5A).

 

Amendment (35) - Residence requirement

 

This is a technical amendment to omit the words “Paragraph (1)(b) does” and substitute “Paragraphs (1)(a) and (b) do” in subclause 22(2).

 

Subclause 22(2) provides an exemption from certain parts of the residence requirement for people born in Australia  or who were Australian citizens at any time before making their application.

 

The amendment to subclause 22(2) provides that the requirement in paragraphs 22(1)(a) and (b), to have been present in Australia (otherwise than as an unlawful non-citizen) during the 4 years immediately before making the application, does not apply to such a person.

 

However, people to whom subclause 22(2) apply will still need to meet the requirement in paragraph 22(1)(c) that they have been present in Australia as a permanent resident for the 12 months immediately before making the application (subject to the concession in subclause 22(1B)).

 

Amendment (36) - Residence requirement

 

This amendment omits subclause 22(3) from the Bill.  Subclause 22(3) provides that the Minister must not take into account, as periods towards satisfying the residential requirement, any confinement in prison, or in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law.

 

Subclause (3) is omitted as it is replaced by new subclause 22(1C).   

 

Amendment (37) - Residence requirement

 

This amendment omits subclause 22(4) from the Bill. Subclause 22(4) gives the Minister a discretion to count a period longer than the period of 5 years referred to in paragraph 21(1)(b) of the Bill. Subclause 22(1) of the Bill is omitted by amendment (34), and the omission of subclause 22(4) is consequential to that amendment.

 

 

Amendment (38) - Residence requirement

 

This amendment inserts new subclause (4A) before subclause (5) in clause 22 of the Bill. 

 

Subclause (4A) provides further elaboration on the application of subparagraph 21(1)(b)(i) (as inserted by amendment (34)).  It enables the Minister to treat a period as one in which the person was present in Australia otherwise, than as an unlawful non-citizen, where the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

 

Amendment (39) - Residence requirement

 

This is a technical amendment to subclause 22(5) which omits “The” and substitutes “For the purposes of paragraph (1)(c), the”.  The amendment clarifies that the discretion in subclause 22(5) applies for the purposes of paragraph 22(1)(c) (inserted by amendment (34)). Subclause 22(5) allows the Minister to treat, as periods of permanent residence, periods spent in Australia during which the Minister considers that, because of an administrative error, the person was not a permanent resident.

 

Amendment (40) - Residence requirement

 

This amendment inserts new subclause 22(5A). 

 

Subclause (5A) gives the Minister a discretion to decide that subclause 21(1C) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.  

 

Subclause 22(1C) provides that subject to subsection (5A), the person does not satisfy paragraph 22(1)(a) if, at any time in the 4 years immediately before making the application, the person was confined in prison, or confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law. 

 

Subclause 22(5A) recognises that there may be cases in which a person is confined to prison or to a psychiatric institution where the circumstances resulting in that confinement are such that it would be appropriate for the Minister to have the discretion in subclause 22(5A) that the person would not be required to restart the 4 year period to meet the residence requirement for citizenship.

 

Amendment (41) - Residence requirement

 

This is a technical amendment to clause 22 by omitting “The” and substituting “For the purposes of paragraph (1)(c), the”.  It clarifies that the discretion in subclause 22(6) applies to the requirement in paragraph 22(1)(c) (inserted by amendment (34)) and is consequential to the amendments made by amendment (34).

 

 

Amendment (42) - Residence requirement

 

This amendment omits subclause 22(7).  Subclause 22(7) allows the Minister to treat periods spent in Australia (otherwise than as a permanent resident or unlawful non-citizen) where the person was engaged in activities beneficial to Australia, as periods present in Australia as a permanent resident. Amendment (42) omits this discretion.

 

The new residence requirements (amendments (34) to (44)) will allow up to three years of temporary residence to count toward the four year residential qualifying period.

 

Amendment (43) - Residence requirement

 

This amendment omits subclause 22(8).  Subclause 22(8) allows the Minister to treat periods spent outside Australia (as a permanent resident) engaged in activities beneficial to Australia, as periods present in Australia as a permanent resident. Amendment (43) omits this discretion.

 

The requirement to spend time in Australia as a permanent resident is reduced by new paragraph 22(1)(c) (inserted by amendment (34)) to the 12 month period immediately before making the application. In addition, people may spend up to 3 months of this 12 months period outside Australia and still meet the residence requirement (subclause 22(1B) inserted by amendment (34)).

 

Amendment (44) - Residence requirement

 

This amendment to clause 22 omits subclause (10), and substitutes new subclauses (10) and (11). 

 

Subclause 22(9) of the Bill allows the Minister to treat periods spent overseas by an applicant as periods during which the person was present as a permanent resident in Australia. The person must have been a permanent resident and the spouse of an Australian citizen during the time overseas and satisfy the Minister that they had a close and continuing relationship with Australia during the time overseas.  

 

Subclause 22(10) of the Bill provides that a ‘spouse, of an Australian citizen’ includes a person granted a permanent visa as a de facto spouse of that Australian citizen. New subclause 22(10) (as substituted by this amendment) provides that for the purposes of subclause 22(9) ‘spouse’ includes de facto spouse.

 

The purpose of this amendment is to ensure that the same requirements apply to spouses and de facto spouses before the discretion in subclause 22(9) can be exercised. In particular, it ensures that de facto spouses must continue to be in the de facto spouse relationship with the Australian citizen both during the time spent overseas, and at time of making their citizenship application.

 

New subclause 22(11) creates a similar discretion in relation to a person in an interdependent relationship with an Australian citizen. Such people may count time spent overseas as time spent in Australia as a permanent resident, provided certain requirements are met. For a person in an interdependent relationship, the requirements are that the person holds a permanent visa granted on the basis of the person’s interdependent relationship with an Australian citizen, both at time of application and during the time spent overseas; and that the person was in that interdependent relationship both during the time spent overseas and at the time of application. To exercise this discretion, the Minister must also be satisfied that the person had a close and continuing relationship with Australia during the period spent overseas.

 

Amendment (45) - Citizenship approval decisions

 

This is an amendment to clause 24 in relation to citizenship approval decisions.

New subclause (1A) provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).  

 

The purpose of this subclause is to put it beyond doubt that the Minister cannot approve an applicant if the applicant does not meet the eligibility requirements in clause 21.

 

Amendment (46) - Citizenship approval decisions

 

This amendment is a technical amendment to subclause 24(2) omitting the words “be so approved”, and substituting “become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8)”.

 

The amendment provides a clear link to the provisions under which the person may be eligible to become a citizen. Subclause 24(2) provides that despite being eligible, the Minister may nevertheless refuse to approve the person becoming an Australian citizen.  

 

Amendment (47) - Stateless persons

 

This amendment omits subclause 24(4) and inserts new subclauses 24(4), (4A) and (4B). The amendments relate to the national security requirements for approval of applications for citizenship by conferral.

 

New subclause (4) mirrors subclause 24(4) in the Bill, but provides that the provision applies only if the person is not covered by subsection (4B). The purpose of this amendment is to provide specific requirements regarding national security for stateless people (i.e. people covered by new subclause (4B)), and exclude such people from having to meet the standard national security requirement in subclause 24(4).

 

New subclause (4A) sets out the national security requirement for stateless people (i.e. people covered by subclause (4B)). It provides that if a person is covered by subparagraph (4B)(b)(i) (i.e. stateless people born in Australia), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of either a national security offence, or an offence against an Australia law or a foreign law, for which the person was sentenced to at least 5 years imprisonment. Subclause (4A) further provides that if subparagraph (4B)(b)(ii) applies to the applicant (i.e. stateless people born outside Australia who, at the time of their birth, had a parent who was an Australian citizen), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.

 

The term “national security offence” is to be defined at clause 3 of the Bill, as amended by amendment (15). The definition includes several listed offences, and other offences determined by the Attorney-General under new clause 6A (inserted by amendment (17)). New clause 6A makes it clear that offences determined by the Attorney-General either before or after an application for citizenship is made, but before it is decided, will apply to that application.

 

New subclause 24(4B) sets out the people to whom subclause (4A) will apply. It will apply to a person who, at time of the citizenship application, is not a national or citizen or any country, and who was either born in Australia, or was born outside Australia and at the time of person’s birth, had a parent who was an Australian citizen.

 

The purpose of these amendments is to address a recommendation made by the Senate Committee in its inquiry into the Bill. The Senate Committee recommended that clause 24 be amended so as to limit the exclusion from citizenship on national security grounds in the case of a stateless person to applicants who have been convicted of a security related offence in accordance with the Convention on the Reduction of Statelessness .  The amendments reflect the fact that the Convention provides for this limitation where the applicant for citizenship had, at the time of their birth outside Australia, a parent who was an Australian citizen (Article 4); or where the person was born in Australia (Article 1).

 

Amendment (48) - Residence requirement

 

This amendment inserts new paragraph (c) to subclause 24(5) of the Bill.

 

New paragraph (c) provides that the Minister did not apply subsection 22(11) in relation to the person.

 

This amendment is consequential to the amendment made by amendment (44), inserting subclause 22(11) into clause 22. New subclause 22(11) extends the residence discretion in subclause 22(9) (applying in relation to spouses) to people in an interdependent relationship with an Australian citizen. Both provisions allow the Minister to treat periods spent overseas as periods spent in Australia as a permanent resident.

 

The insertion of new paragraph (c)  means that where the Minister has exercised the discretion in subclause 22(9) or 22(11) in relation to a person covered by subclause 21(2), (3) or (4) the Minister can approve the person becoming an Australian citizen even if they not present in Australia.

 

Amendment (49) - Residence requirement

 

This amendment omits the proviso in subclause 24(5) that the general rule (that the applicant must be in Australia at time of approval) does not apply if the Minister considers the person is engaging in activities at that time that are beneficial to the interests of Australia. This change is consistent with the residence discretions in clause 22 which do not contain any discretion in relation to time spent overseas engaging in activities beneficial to the interests of Australia.

 

Amendment (50) - Simplified outline

          This amendment inserts clause 28A which is a simplified outline of Subdivision C, which deals with resuming citizenship.

 

The outline explains that a person may be eligible to become an Australian citizen under Subdivision C if the person ceased to be an Australian citizen under the Bill or under the old Australian Citizenship Act 1948 .

 

It specifies that the person must make an application for resumption of Australian citizenship and must be eligible to be an Australian citizen again to be approved.   It also makes clear that a person may be refused citizenship even if the person is eligible to resume citizenship.

 

The outline further states the Minister must approve or refuse an applicant becoming an Australian citizen again.  It states that the Minister may be required to refuse the application for resumption of citizenship on various grounds and refers readers to the relevant provisions, as follows:

 

•           non-satisfaction of identity -  subsection 30(3);

•           national security - subsections 30(4) to (6).

 

The outlines states that if the application is approved by the Minister, the person will be registered as an Australian citizen again.

 

Amendment (51) - Citizenship for persons adopted in accordance with the Hague Convention

          This is a technical amendment to the second note following subclause 29(1), which omits “Subdivision A or B” and substitutes “Subdivision A, AA or B”.

 

The purpose of this amendment is to include a reference in the note to new Subdivision AA, relating to people adopted in accordance with the Hague Convention on Intercountry Adoption, inserted by amendment (30).

 

Amendment (52) - Citizenship for people adopted in accordance with the Hague Convention

 

This is a technical amendment to the note at subclause 29(2), omitting “Subdivision A or B” and substituting “Subdivision A, AA or B”.

 

The purpose of this amendment is to include a reference in the note to new Subdivision AA, relating to people adopted in accordance with the Hague Convention on Intercountry Adoption, inserted by amendment (30).

 

Amendment (53) - Citizenship approval decisions

 

This amendment inserts new subclause (1A) into clause 30 of the Bill.   New subclause (1A) provides that in relation to a person who has applied to become an Australian citizen again, the Minister must not approve the person becoming an Australian citizen again unless the person is eligible to become an Australian citizen again under subsection 29(2) or (3).

 

The purpose of this amendment is to put it beyond doubt that the Minister cannot approve a person becoming an Australian citizen again if the person is not eligible to become an Australian citizen again under subclause 29(2) or (3).    

 

Amendment (54) - Citizenship approval decisions

 

This amendment to subclause 30(2) by omitting the words “be so approved”, and substituting the words “become an Australian citizen again under subsection 29(2) or (3)”.  The amendment provides a clear link to the provisions under which the person may be eligible to become a citizen and provides that despite being eligible, the Minister may nevertheless refuse the person’s application.

 

Amendment (55) - Stateless persons

 

This amendment omits subclause 30(4) and inserts new subclauses 30(4), (5) and (6). The amendments relate to the national security requirements for approval of applications for resumption of citizenship.

 

New subclause (4) mirrors subclause 30(4) in the Bill, but provides that the provision applies only if the person is not covered by subsection (6). The purpose of this amendment is to provide specific requirements regarding national security for stateless people (i.e. people covered by new subclause (6)), and exclude such people from having to meet the standard national security requirement in subclause 30(4).

 

New subclause (5) sets out the national security requirement for stateless people (i.e. people covered by subclause (6)). It provides that if a person is covered by subparagraph (6)(b)(i) (i.e. stateless people born in Australia), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of either a national security offence, or an offence against an Australia law or a foreign law, for which the person was sentenced to at least 5 years imprisonment. Subclause (5) further provides that if subparagraph (6)(b)(ii) applies to the applicant (i.e. stateless people born outside Australia who, at the time of their birth, had a parent who was an Australian citizen), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.

 

The term “national security offence” is to be defined at clause 3 of the Bill, as amended by amendment (15). The definition includes several listed offences, and other offences determined by the Attorney-General under new clause 6A (inserted by amendment (17)). New clause 6A makes it clear that offences determined by the Attorney-General before or after an application for citizenship is made, but before it is decided, will apply to that application.

 

New subclause 30(6) sets out the people to whom subclause (5) will apply. It will apply to a person who, at time of the citizenship application, is not a national or citizen or any country; and who was either born in Australia, or was born outside Australia and at the time of person’s birth, had a parent who was an Australian citizen.

 

The purpose of these amendments is to address a recommendation made by the Senate Committee in its inquiry into the Bill. The Senate Committee recommended that clause 30 be amended so as to limit the exclusion from citizenship on national security grounds in the case of a stateless person to applicants who have been convicted of a security related offence in accordance with the Convention on the Reduction of Statelessness .  The amendments reflect the fact that the Convention provides for this limitation where the applicant for citizenship had, at the time of their birth outside Australia, a parent who was an Australian citizen (Article 4); or where the person was born in Australia (Article 1).

 

Amendment (56) - Citizenship for people adopted in accordance with the Hague Convention

          This is a technical amendment to subclause 32(2), omitting “Subdivision A or B” and substituting “Subdivision A, AA or B”.

 

The purpose of this amendment is to include a reference in subclause 32(2) to new Subdivision AA which relates to citizenship for people adopted in accordance with the Hague Convention.

 

Amendment (57) - Simplified outline

          This amendment inserts clause 32A which includes a simplified outline of Division 3 - Cessation of Australian citizenship.

 

The outline sets out the four ways in which a person can cease to be an Australian citizen and refers readers to the relevant provisions as follows:

 

•           the person may renounce their Australian citizenship - section 33;

•           if the person did not automatically become an Australian citizen, the Minister can revoke their citizenship -  section 34;

•           if a person serves in the armed forces of a country at war with Australia - section 35;

•           if the person is a child of a responsible parent who ceases to be an Australian citizen, the Minister can revoke the child’s citizenship in certain situations section 36.

 

Amendment (58) - Citizenship for persons adopted in accordance with the Hague Convention

 

This amendment to the heading to clause 34 adds the words, “or for persons adopted in accordance with the Hague Convention on Intercountry Adoption” after the word “descent”.

 

Clause 34 sets out the circumstances in which the Minister may revoke a person’s citizenship. Subclause 34(1) relates to citizenship by descent. Amendment (59) inserts a reference to Subdivision AA into subclause 34(2). Subdivision AA, inserted by amendment (30) allows children adopted in accordance with the Hague Convention on Intercountry Adoption to become citizens in certain circumstances. 

 

This amendment therefore amends the heading to subclause 43(1) to reflect its new content.

 

Amendment (59) - Citizenship for people adopted in accordance with the Hague Convention

 

This amendment inserts the words “or AA” after Subdivision A” in subclause 34(2) of the Bill.

 

Clause 34 sets out the circumstances in which the Minister may revoke a person’s citizenship. Subdivision AA, inserted by amendment (30) allows children adopted in accordance with the Hague Convention on Intercountry Adoption to become citizens in certain circumstances.  The amendment provides that the Minister may revoke citizenship of a person who is a citizen under Subdivision AA in addition to people who are citizens by descent under Subdivision A.

 

Amendment (60) - Notice of Australian Citizenship

 

This amendment to subclause 37(2) removes the word “written”. Clause 37 allows people to apply for evidence of their citizenship. Subclause 37(2) of the Bill allows the Minister to give written notice to the person stating that the person is an Australian citizen at a particular time.    

 

The amendment removes the requirement that the evidence must be given in written form. The purpose is to be able to respond to future whole of government proof of identity initiatives in relation to the issue of evidence of a particular status.

 

Amendment (61) - Personal Identifiers

 

This amendment adds new subclause 42(1A) after subclause 42(1) and adds a new note following subclause 42(1A).

 

Subclause 42(1) creates an offence related to unauthorised access of identifying information.  The term “identifying information” is defined in clause 3 of the Bill, as amended by amendments (9) to (14).

 

New subclause 42(1A) provides that the offence outlined in 42(1) does not apply if the person believes on reasonable grounds that the access is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.

 

This exception to the offence mirrors the Information Privacy Principle 10.1(b) of the Privacy Act 1988, which allows for the use of personal information in these circumstances. Information Privacy Principle 11.1(c) also allows for disclosure of personal information in these circumstances.

 

A note is added at the end of this subclause which specifies that the defendant bears an evidential burden in relation to the matter in subclause (1A), and referring the reader to subsection 13.3(3) of the Criminal Code.

 

Amendment (62) - Personal Identifiers

 

This amendment omits and substitutes a new subclause (2) to clause 42 of the Bill and repeats the note following subclause 42(2) in the Bill. .  

 

Subclause 42(2) of the Bill provides an exception to the offence in subclause 42(1) relating to unauthorised access of identifying information. It provides that section 42 does not apply if the access is through a disclosure that is a permitted disclosure within the meaning of section 43. The term “identifying information” is defined in clause 3 of the Bill, as amended by amendments (9) to (14).

 

The amendment to subclause 42(2) maintains the current operation of the subclause at paragraph (2)(a), and adds further exception to the offence at paragraph (2)(b).

 

New paragraph (2)(b) provides that section 42 does not apply to a disclosure to which section 43 does not apply because of the operation of subsection 43(1A).

 

Subclause 43(1A) is added to clause 43 by amendment (66). It provides that where a permitted disclosure of identifying information is made to a person who is not an entrusted person, section 43 does not apply to any further disclosure of that identifying information by a person who is not an entrusted person.

 

The term “entrusted person” is inserted into clause 3 of the Bill by amendment (8). Generally speaking, a person who works for the Department of Immigration and Multicultural Affairs (the Department) is an entrusted person.

 

The purpose of new subclause 43(1A) is to allow other agencies, which have lawfully received identifying information from the Department, to disclose that information without committing an offence under section 43. However, their disclosure of that information may be governed by the Privacy Act 1988.

 

The purpose of new paragraph 42(2)(b) (inserted by this amendment) is to ensure that a person who accesses information, via a ‘secondary disclosure’ to which subclause 43(1A) applies, does not commit an offence under section 42 for unauthorised accessing of identifying information. This is consistent with subclause 42(2) currently in the Bill, which provides that a person who access information, via a permitted disclosure, does not commit an offence under section 42.

 

A note is added at the end of subclause 42(2), containing the same information as in the note currently in the Bill after subclause 42(2). The note specifies that the defendant bears an evidential burden in relation to the matter in subsection (2), and refers the reader to subsection 13.3(3) of the Criminal Code .

 

Amendment (63) - Personal Identifiers

 

This amendment makes a minor technical adjustment to the language of subclause 42 (4) by omitting the words “one or more”, and substituting the words “either or both” in paragraph (a). The amendment is consequential to the amendment made to paragraph 10(2)(c) by amendment (19), which omits subparagraph 10(2)(c)(iii).

 

Amendment (64) - Personal Identifiers

 

This amendment omits paragraph 42 (4)(g) and substitutes a new paragraph (g). The current paragraph in the Bill permits disclosures of identifying information for the purpose of making decisions under the Bill or the regulations, or under the Migration Act 1958 or the regulations made under that Act.

 

The amended paragraph (g) widens this purpose slightly by permitting disclosures “for the purposes of” the pieces of legislation referred to in paragraph (g). In other words, the disclosure does not have to be for the purposes of making a decision under such legislation - it can be for any purpose under that legislation.

 

Amendment (65) - Personal Identifiers

 

This amendment omits subclause 42(5) from the Bill.

 

Subclause 42(5) provides that access to identifying information cannot be authorised for a purpose that will involve or include the purpose of investigating an offence against an Australian law, or prosecuting a person for such an offence, if the information relates to a personal identifier of a type prescribed by the regulations for the purposes of clause 42.

 

This provision was included in the Bill to mirror the same provision in the access offence provision of the Migration Act 1958 . That provision was inserted into the Migration Act in 2004. To date, no regulations have been made prescribing any personal identifiers for the purposes of that provision. This means that the provision has remained inoperative since its inclusion into the Migration Act (as without regulations being made under it, the provision has no operation).

 

It is not intended that any regulations be made under new subclause 42(5) of the Bill. It is considered that the limited grounds for which access can be authorised, set out in subclause 42(4), provide sufficient safeguards against improper or inappropriate access of identifying information; and subclause 42(5) is redundant and should therefore be removed.

 

 

Amendment (66) - Personal Identifiers

 

This amendment inserts new subclauses 43(1A) and (1B) into the Bill and adds three new notes.    

 

Subclause 43(1A) provides that where a permitted disclosure of identifying information is made to a person who is not an entrusted person, section 43 does not apply to any further disclosure of that identifying information by a person who is not an entrusted person.

 

The term “entrusted person” is inserted into clause 3 of the Bill by amendment (8). Generally speaking, a person who works for the Department of Immigration and Multicultural Affairs (the Department) is an entrusted person.

 

The purpose of new subclause 43(1A) is to allow other agencies, which have lawfully received identifying information from the Department, to disclose that information without committing an offence under section 43. However, their disclosure of that information may be governed by the Privacy Act 1988.

 

Note 1 at the end of new subclause 43(1A) states that the defendant bears an evidential burden in relation to the matter in subsection (1A).  The reader is directed to subsection 13.3(3) of the Criminal Code.

 

Note 2 at the end of the new subclause advises the reader that paragraph 3 of Information Privacy Principle 11 in section 14 of the Privacy Act may apply to further disclosures of identifying information by a person who is not an entrusted person.

 

Subclause (1B) provides that section 43 does not apply if the person making the disclosure believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.

 

This exception to the offence mirrors the Information Privacy Principle 11.1(c) of the Privacy Act 1988 which allows for the use of personal information in these circumstances. It also mirrors new subclause 42(1A) (inserted by amendment (61) relating to accessing identifying information. 

 

A note is also added at the end of new subclause 43(1B) stating that the defendant bears an evidential burden in relation to the matter in subsection (1B).  The reader is directed to subsection 13.3(3) of the Criminal Code.

 

Amendment (67) - Personal Identifiers

 

This amendment omits paragraph (2) (a) from clause 43 of the Bill.

 

Paragraph (2)(a) of the Bill permits disclosure of identifying information for the purpose of data-matching in order to identify, or authenticate the identity of, a person for the purposes of the Bill.

 

It is omitted following a review of the personal identifier provisions of the Bill in consultation with the Office of the Privacy Commissioner (as recommended by the Committee). The paragraph is unnecessary as it is intended that any large-scale data matching of identifying information will take place under agreements between the Department of Immigration and Multicultural Affairs (the Department) and other Commonwealth, State or Territory agencies. This is permitted by paragraph 43(2)(e) of the Bill. It is also intended that the Department will disclose identifying information to other Commonwealth, State and Territory agencies on a person by person basis (i.e. not large scale data-matching) for the purposes of verifying whether a person is an Australian citizen. This will be permitted by new paragraph 43(2)(da) (inserted by amendment (69)).

 

Amendment (68) - Personal Identifiers

 

This amendment omits the current paragraph (b) at subclause 43(2) and substitutes a new paragraph (b). 

 

New paragraph (b) has a wider application, as it permits disclosure of identifying information for the purposes of not just the Bill and regulations made under the Bill (as in current paragraph 43(2)(b) in the Bill), but also the Migration Act 1958 and regulations made under that Act.

 

This will allow the Department to disclose identifying information provided under the Bill in the citizenship context, for a purpose related to the Migration Act or regulations made under that Act. 

 

Amendment (69) - Personal Identifiers

 

This amendment inserts new paragraph (da) into subclause 43(2).  

 

New paragraph (da) permits the disclosure of identifying information to an agency of the Commonwealth, a State or Territory in order to verify that a person is an Australian citizen.

 

For example, this will allow the Department of Immigration and Multicultural Affairs to provide a photograph or signature provided by a person at the time they applied for  citizenship or evidence of their citizenship, to another agency in order to verify, for that other agency, that the person to whom the identifying information relates is an Australian citizen.

 

Amendment (70) - Personal Identifiers

 

This amendment inserts new paragraphs (ea) and (eb) to subclause 43(2) of the Bill.

 

New paragraph (ea) permits disclosure of identifying information where this is reasonably necessary for the enforcement of the criminal law of the Commonwealth, a State or a Territory. This mirrors a similar provision which permits the disclosure of personal information under the Privacy Act 1988 (paragraph (1)(e) of Information Privacy Principle 11 contained in section 14). For example, the amendment will allow the Department of Immigration and Multicultural Affairs to disclose a photograph or signature provided by a citizenship applicant to the Australia Federal Police (AFP), or Commonwealth Department of Public Prosecutions, to assist in their investigation of a suspected offence. It complements paragraph 43(2)(f) of the Bill, which allows identifying information to be disclosed for the purpose of court or tribunal proceedings.

 

New paragraph (eb) permits disclosure of identifying information where the disclosure is required by law. This is consistent with paragraph 42(4)(h) of the Bill, which allows access to identifying information to be authorised for the purpose of “complying with Australian laws”.

 

Amendment (71) - Personal Identifiers

 

This amendment omits the words “a request for the provision of a personal identifier” and substitutes “action taken by the Department” at paragraph 43(2)(g).

 

Paragraph (g) of the Bill permits the disclosure of identifying information for the purpose of investigations by the Privacy Commissioner or the Commonwealth Ombudsman, relating to a request for the provision of a personal identifier. The amendment to paragraph (g) widens the scope of the purpose to any investigation by the Privacy Commissioner or Commonwealth Ombudsman into action taken by the Department of Immigration and Multicultural Affairs (the Department). This is because it may be necessary or desirable for the Department to disclose identifying information to either of these agencies to assist the agency with an investigation into action taken by the Department.

 

Amendment (72) - Personal Identifiers

 

This amendment omits subclause 43(3) from the Bill.

 

Subclause 43(3) provides that disclosure of identifying information is not permitted if it is for the purpose of investigating an offence against an Australian law, or prosecuting a person for such an offence, if the information relates to a personal identifier of a type prescribed by the regulations for the purposes of clause 43.

 

This provision was included in the Bill to mirror the same provision in the disclosure offence provision of the Migration Act 1958 . That provision was inserted into the Migration Act in 2004.  To date, no regulations have been made prescribing any personal identifiers for the purposes of that provision. This means that the provision has remained inoperative since its inclusion into the Migration Act (as without regulations being made under it, the provision has no operation).

 

It is not intended that any regulations be made under new subclause 43(3) of the Bill. It is considered that the limited grounds for which disclosure can be authorised, set out in subclause 43(2), provide sufficient safeguards against improper or inappropriate access of identifying information; and subclause 43(3) is redundant and should therefore be removed.

 

Amendment (73) - Personal Identifiers

 

The amendment inserts new subclause 44(2A) to the Bill and a new note.

 

Clause 44 makes it an offence for a person to modify or impair identifying information where the person is not entitled to cause that modification or impairment.

 

New subclause 44(2A) provides that clause 44 does not apply where identifying information is lawfully disclosed under clause 43 by an entrusted person, to any modification or impairment of the information by a person who is not an entrusted person.

 

The term “entrusted person” is inserted into clause 3 of the Bill by amendment (8). Generally speaking, a person who works for the Department of Immigration and Multicultural Affairs (the Department) is an entrusted person.

 

The purpose of new subclause 44(2A) is to allow other agencies, which have lawfully received identifying information from the Department, to modify or impair that information without committing an offence under section 43.

 

A note is also added at the end of new subclause 44(2A) stating that the defendant bears an evidential burden in relation to the matter in subsection (2A).  The reader is directed to subsection 13.3(3) of the Criminal Code.

 

Amendment (74) - Applications by Children aged under 16

 

This amendment inserts a new subclause 46(2A) in the Bill.

 

Clause 46 sets out how applications must be made under the Bill. New subclause 46(2A) relates to applications by children under 16 years of age. It provides that such applications must be set out either on a form that contains no other applications, or on a form that also contains an application by one responsible parent of the child.

 

The purpose of this amendment is to clarify how applications for children are to be made. This follows a recommendation by the Senate Committee in its report on the Bill, that the Bill should clarify when a child may make an application in their own right and when an application may be considered as part of the application of a responsible parent of the child.  

 

The amendment makes clear that children under 16 may apply either individually or as part of an application made by a responsible parent of the child. People over 16 must apply on their own form.

 

Amendment (75) - Citizenship for people adopted in accordance with the Hague Convention

 

This amendment adds new paragraph (aa) to subclause 52(1) of the Bill.

 

Subclause 52(1) sets out which decisions, made under the Bill, may be reviewed by the Administrative Appeals Tribunal (the AAT).

 

New paragraph (aa) provides that an application can be made to the AAT for review of a decision under section 19D to refuse to approve a person becoming an Australian citizen.

 

This amendment is consequential to the insertion into the Bill of Subdivision AA of Division 2 of Part 2, by amendment (30). Subdivision AA provides for citizenship for people adopted in accordance with the Hague Convention on Intercountry Adoption.

 

This amendment ensures that an applicant under Subdivision AA can seek review of a decision of the Minister under new clause 19D refusing citizenship.

 

Amendment (76) -Applications for review by stateless people

 

This amendment omits subclauses (2) and (3) to clause 52 of the Bill, and substitutes a new subclause (2).

 

Subclause 52(2) of the Bill provides that a person (the applicant) cannot apply for review by the AAT of a decision under section 24 to refuse to approve the person becoming a citizen, unless the applicant is a permanent resident.

 

This provision has the unintentional effect of requiring people seeking citizenship on the grounds of statelessness to be an Australian permanent resident at time of application to the AAT. This is not a requirement for stateless people under the Australian Citizenship Act 1948 (the Act), and the intention is that review rights in the Bill should mirror those in that Act.

 

New subclause 52(2) therefore ensures that the requirement to be a permanent resident does not apply where the applicant was applying on the grounds of statelessness. It does so by imposing the requirement only where the Minister’s reasons for the decision under section 24 did not refer to the eligibility ground in subclause 21(8) (about statelessness).

 

There are two situations in which the exemption from the permanent resident requirement will apply to people seeking citizenship on grounds of statelessness. First, the person may apply for citizenship on the grounds of statelessness, and be refused on the basis that the person does not meet the eligibility requirements in clause 21, in particular, the person does not meet subclause 21(8) (dealing with statelessness). The application must be refused under section 24 (see amendment (45)), and the Minister’s reasons for decision will refer to subclause 21(8).

 

The second case in which this may occur is where the Minister finds that the applicant meets subclause 21(8) (and so is eligible on the grounds of statelessness), but nevertheless refuses the application under clause 24 (for example, because the applicant fails the national security requirement). Again, the reasons for refusal will refer to the eligibility ground met by the applicant, that is, subclause 21(8).

 

In both these cases, there is to be no requirement that the person seeking AAT review is a permanent resident.

 

Subclause 52(3) of the Bill provided that the requirement to be a permanent resident does not apply to people aged under 18 at time of their citizenship application. The effect of this provision is maintained by paragraph 52(2)(c) of the amendment.