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Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009

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2008 - 2009

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

 

 

 

 

AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP TEST REVIEW AND OTHER MEASURES) BILL 2009

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Citizenship,

Senator the Hon. Chris Evans)



AMENDMENTS TO THE AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP TEST REVIEW AND OTHER MEASURES) BILL 2009

 

OUTLINE

 

The amendments to the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 (the Bill) are to provide for a reduced period of residence for certain persons in special circumstances to allow such persons to be eligible to become an Australian citizen.

The amendments to the Bill amend the Australian Citizenship Act 2007 (the Act) to:

-                 provide in a new Schedule 2 to the Bill for a special residence requirement for:

o    certain persons seeking to represent Australia at an international event; and

o    certain persons engaged in particular kinds of work requiring regular travel outside Australia;

-                 provide for the current “residence requirement” in section 22 of the Act to be defined as the “general residence requirement” to distinguish between the “special residence requirement” and the “general residence requirement”;

-                 provide for certain ministerial discretions in relation to administrative error and confinement in prison or psychiatric institutions to apply in relation to the special residence requirement; and

-                 provide that the Minister may approve a person becoming an Australian citizen when the person is not present in Australia if the person satisfies the special residence requirement.

The amendments to the Bill also make a consequential amendment to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitionals and Consequentials Act) to omit “residence requirement” and substitute “general residence requirement” in Item 5B of Schedule 3 to the Transitionals and Consequentials Act.

 

FINANCIAL IMPACT STATEMENT

 

The financial impact of these amendments is low.  Any consequential costs will be met from within existing resources.



AMENDMENTS TO THE AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP TEST REVIEW AND OTHER MEASURES) BILL 2009

 

NOTES ON AMENDMENTS

 

Amendment (1) - Clause 2, page 2 (at the end of the table), add:

 

1.       This amendment adds item 3 in Column 1 of the table in subclause 2(1) of the Bill that sets out the commencement provisions of the Bill.

 

2.       New item 3 provides that Schedule 2 to the Bill commences on the day this Act receives the Royal Assent.

 

Amendment (2) - Schedule 1, heading, page 3 (line 1)

 

3.       This amendment adds “relating to citizenship test review etc.” at the end of the heading to Schedule 1 of the Bill.

 

4.       This amendment is consequential to the amendments below to insert a new Schedule 2 to the Bill.

 

Amendment (3) - Page 5 (after line 27), at the end of the Bill, add:

 

5.       This amendment adds Schedule 2 - Amendments relating to special residence requirement at the end of the Bill.

 

6.       This amendment is to amend the Bill to provide for a new special residence requirement for certain persons.

 

SCHEDULE 2 - Amendments relating to special residence requirement

 

Australian Citizenship Act 2007

Item 1 - Paragraph 21(2)(c)

 

7.       This item omits “residence requirement (see section 22)” from paragraph 21(2)(c) of Subdivision B of Division 2 of Part 2 of the Act and substitutes “general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B)”.

 

8.       Paragraph 21(2)(c) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application.

 

9.       The purpose of this amendment is to include the special residence requirement to ensure applicants who meet the special residence requirement are eligible for Australian citizenship under section 21 of the Act.

 

Item 2 - Paragraph 21(3)(c)

 

10.   This item omits “residence requirement (see section 22)” from paragraph 21(3)(c) of Subdivision B of Division 2 of Part 2 of the Act and substitutes “general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B)”.

 

11.   Paragraph 21(3)(c) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application.

 

12.   The purpose of this amendment is to include the special residence requirement to ensure applicants who meet the special residence requirement are eligible for Australian citizenship under section 21 of the Act.

 

Item 3 - Paragraph 21(4)(d)

 

13.   This item omits “residence requirement (see section 22)” from paragraph 21(4)(d) of Subdivision B of Division 2 of Part 2 of the Act and substitutes “general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B)”.

 

14.   Paragraph 21(4)(d) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application.

 

15.   The purpose of this amendment is to include the special residence requirement to ensure applicants who meet the special residence requirement are eligible for Australian citizenship under section 21 of the Act.

 

Item 4 - Subsection 22(1)

 

16.   This item omits “residence requirement” from subsection 22(1) of Subdivision B of Division 2 of Part 2 of the Act and substitutes “general residence requirement”.

 

17.   This item inserts a note at the end of subsection 22(1).  This note provides that the heading to section 22 is replaced by the heading “General residence requirement”.

 

18.   Subsection 22(1) of the Act provides that subject to this section, for the purposes of section 21 a person satisfies the residence requirement if:

 

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

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

·          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.

 

19.   This amendment is consequential to the amendments made by item 5.  The purpose of this amendment is to change the reference in subsection 22(1) of the Act from “residence requirement” to “general residence requirement” to ensure that “special residence requirement” provided for in item 5 below is a distinct term.

Item 5 - After section 22

 

20.   This item inserts new section 22A (Special residence requirement—persons representing Australia at international events) after section 22 of Subdivision B of Division 2 of Part 2 of the Act.

 

21.   The purpose of new section 22A is to provide that an applicant satisfies the special residence requirement if the applicant is seeking to represent Australia at an event and taking into account the selection process for that event there is insufficient time for the applicant to satisfy the general residence requirement in section 22 of the Act.

 

22.   New subsection 22A(1) provides that subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:

 

·                the applicant is seeking to represent Australia at an event specified under new subsection 22C(1), the applicant needs to be an Australian citizen in order to represent Australia at that event and, taking into account the selection processes for that event, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and

·                the head of an organisation specified under new subsection 22C(2), or a person whom the Minister is satisfied is a senior person in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being selected to represent Australia at that event; and

·                the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and

·                the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and

·                the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and

·                the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and

·                the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.

 

23.   This item also inserts a heading after new subsection 22A(1) Confinement in prison or psychiatric institution.

 

24.   New subsection 22A(2) provides that subject to new subsection 22A(3), the applicant is taken not to satisfy new paragraph 22A(1)(c) if, at any time during the 2 year period immediately before the day the applicant made the application, as mentioned in that paragraph, the applicant 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 in relation to the applicant.

 

25.   New subsection 22A(3) provides that the Minister may decide that new subsection 22A(2) does not apply in relation to the applicant if, taking into account the circumstances that resulted in the applicant’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the applicant.

 

26.   Additionally, this item inserts a heading after new subsection 22A(3) Ministerial discretion - administrative error.

 

27.   New subsection 22A(4) provides that for the purposes of new paragraph 22A(1)(f), the Minister may treat a period as one in which the applicant was a permanent resident if the Minister considers that, because of an administrative error, the applicant was not a permanent resident during that period.  New paragraph 22A(1)(f) requires the applicant to be a permanent resident for the period of 2 years immediately before the day the applicant made the application.

 

28.   New subsection 22A(5) provides that for the purposes of new paragraph 22A(1)(g), the Minister may treat a period as one in which the applicant was not present in Australia as an unlawful non-citizen if the Minister considers the applicant was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period. New paragraph 22A(1)(g) requires that the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.

 

29.   This item also inserts new section 22B (Special residence requirement—persons engaged in particular kinds of work involving regular travel outside Australia) after new section 22A of Subdivision B of Division 2 of Part 2 of the Act.

 

30.   The purpose of new section 22B is to provide that persons engaged in particular kinds of work requiring regular travel outside Australia may be eligible to satisfy the special residence requirement in this new section of the Act.  This provision enables persons who would not otherwise meet the general residence requirement in section 22 of the Act because of their work to be eligible for Australian citizenship.

 

31.   New subsection 22B(1) provides that subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:

·          at the time the person made the application, the person is engaged in work of a kind specified under new subsection 22C(3) that requires the person to regularly travel outside Australia; and

·          the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application; and

·          the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and

·          the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and

·          the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and

·          the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and

·          the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application.

 

32.   This item also inserts a heading after new subsection 22B(1) Confinement in prison or psychiatric institution.

 

33.   New subsection 22B(2) provides that subject to new subsection 22B(3), the person is taken not to satisfy new paragraph 22B(1)(c) if, at any time during the 4 year period immediately before the day the applicant made the application, as mentioned in that paragraph, 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 in relation to the person.

 

34.   New subsection 22B(3) provides that the Minister may decide that new subsection 22B(2) does not apply in relation to the 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.

 

35.   Additionally, this item inserts a heading after new subsection 22B(3) Ministerial discretion - administrative error.

 

36.   New subsection 22B(4) provides that for the purposes of new paragraph 22B(1)(f), the Minister may treat a period as one in which the person was a permanent resident if the Minister considers that, because of an administrative error, the person was not a permanent resident during that period. New paragraph 22B(1)(f) requires the person to be a permanent resident for the period of 12 months immediately before the day that the person made the application.

 

37.   New subsection 22B(5) provides that for the purposes of new paragraph 22B(1)(g), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if 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. New paragraph 22B(1)(g) requires that the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application.

 

38.   This item inserts new section 22C (Special residence requirement—legislative instruments) after new section 22B of Subdivision B of Division 2 of Part 2 of the Act. 

 

39.   New section 22C provides for the Minister to make legislative instruments for the purposes of new sections 22A and 22B.

 

40.   New subsection 22C(1) provides that the Minister may, by legislative instrument, specify events for the purposes of new paragraph 22A(1)(a). The Minister may specify an event only if the Minister is satisfied that the event is an international one.

 

41.   The purpose of this amendment is to enable the Minister to specify in a legislative instrument the international event(s) that the applicant must be seeking to represent Australia at in order to satisfy the special residence requirement in new section 22A of the Act.

 

42.   New subsection 22C(2) provides that the Minister may, by legislative instrument, specify organisations for the purposes of new paragraph 22A(1)(b).

 

43.   The purpose of this amendment is to enable the Minister to specify in a legislative instrument the organisation(s) that can provide a notice in writing that the applicant has a reasonable prospect of being selected to represent Australia at the relevant event specified in new subsection 22C(1) in order to satisfy the special residence requirement in new section 22A of the Act.

 

44.   New subsection 22C(3) provides that the Minister may, by legislative instrument, specify kinds of work for the purposes of new paragraph 22B(1)(a).

 

45.   The purpose of this amendment is to enable the Minister to specify in a legislative instrument the kinds of work that a person must be engaged in that require the person to regularly travel outside Australia because of that work in order to satisfy the special residence requirement in new section 22B of the Act.

 

Item 6 - After paragraph 24(5)(a)

 

46.   This item inserts new paragraph 24(5)(aa) after paragraph 24(5)(a) of Subdivision B of Division 2 of Part 2 of the Act.

 

47.   New paragraph 24(5)(aa) provides that the Minister is satisfied that the person did not satisfy the special residence requirement referred to in new section 22A or 22B.

 

48.   The purpose of this amendment is to provide that the Minister may approve a person becoming an Australian citizenship when the person is not present in Australia if the person satisfies the special residence requirement as provided in new section 22A or 22B.

 

Australian Citizenship (Transitionals and Consequentials) Act 2007

 

Item 7 - Item 5B of Schedule 3

 

49.   This item provides for an amendment to Item 5B of Schedule 3 to the Transitionals and Consequentials Act.  This amendment omits “residence requirement” and substitutes “general residence requirement”.

 

50.   Item 5B provides transitional arrangements for applicants who are permanent residents of commencement of the Act and are seeking to apply for Australian citizenship by conferral.

 

51.   This amendment is consequential to the amendments made to the Act by Item 5 above.

 

Item 8 - Application

 

52.   This item provides for the application of amendments made by this Schedule.

 

53.   The amendments made by Schedule 2 apply in relation to applications for Australian citizenship made on or after the commencement of Schedule 2.