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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

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

Senator the Hon. Chris Evans)

 



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

 

OUTLINE

 

The Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 (‘the Bill’) amends the Australian Citizenship Act 2007 (‘the Act’) to implement the recommendations of the Australian Citizenship Test Review Committee (‘the Committee’) agreed to by Government and to strengthen the eligibility requirements for citizenship by conferral for applicants under 18.

 

In particular, the Bill:

 

·          provides that certain applicants may be eligible for citizenship without sitting the citizenship test if, at the time of application, they have a physical or mental incapacity that is as a result of suffering torture or trauma outside Australia;

·          provides that the citizenship test must be successfully completed within a period specified by the Minister in a written determination; and

·          provides that to be eligible for citizenship by conferral, applicants who are under 18 years of age must be permanent residents at both the time of application and the time of decision.

 

The amendments relating to the citizenship test are the result of the recommendations of the Committee in its report entitled Moving forward… Improving Pathways to Citizenship (‘the Report’). 

 

In particular, the Government agreed to amend paragraph 21(3)(d) of the Act to ensure that a small group of individuals who suffer from psychological disorders as a direct result of having experienced torture and trauma, do not need to sit the citizenship test.

 

The government also agreed that the citizenship testing processes should be streamlined and realigned to combine citizenship testing with the citizenship application.

 

The amendments relating to the eligibility requirements for citizenship by conferral for applicants under 18 seek to ensure that applicants who are under 18 years of age must be permanent residents to be eligible for citizenship by conferral. The amendments will ensure the integrity of the department’s citizenship and migration programs.

 

financial impact statement

 

The financial impact of these amendments will be minimal as funds will be allocated from existing resources.



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

 

notes on individual clauses

 

Clause 1          Short title

 

1.       Clause 1 provides that the short title by which the Act may be cited is the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 .

 

Clause 2          Commencement

 

2.        Subclause 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Subclause 2(1) also provides that any other statement in column 2 has effect according to its terms.

 

3.       Table Item 1 provides that sections 1 to 3 of the Act and anything in the Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent.

 

4.       Table Item 2 provides that Schedule 1 to the Act commences on a single day to be fixed by Proclamation.  However, it also provides that if any provision(s) do not commence within the period of 6 months beginning on the day on which the Act receives the Royal Assent, they commence on the first day after the end of that period.

 

5.       Subclause 2(2) explains that column 3 of the table contains additional information that is not part of this Act.  It specifies that information in this column may be added to or edited in any published version of this Act.

 

6.       An explanatory note is provided at the end of this table to assist the reader.  It specifies that the table relates only to the provisions of this Act as originally passed by both Houses of Parliament and assented to.  It states that the table will not be expanded to deal with provisions inserted in this Act after the Royal Assent.

 

Clause 3          Schedule(s)

 

7.       This clause provides that each Act specified in a Schedule to the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 has effect according to its terms.



 

SCHEDULE 1 - Amendments

 

Australian Citizenship Act 2007

 

Item 15           Section 19G

 

8.        This item omits “permanent” from section 19G of Subdivision B of Division 2 of Part 2 of the Act.  Section 19G is a simplified outline of Subdivision B and contains information about eligibility for citizenship by conferral.

 

9.       Section 19G as amended explains that a person may be eligible to become an Australian citizen under Subdivision B of the Act if he or she has a physical or mental incapacity (rather than a “permanent” physical or mental incapacity).

 

10.   This amendment is consequential to the amendments made by items 25 and 27, which provide that certain people who have suffered torture or trauma outside Australia and who have a physical or mental incapacity (which need not be permanent) may meet the requirements for citizenship by conferral.  The word “permanent” is removed from the simplified outline in section 19G to ensure that the explanation is consistent with the amendments made by items 25 and 27.

 

Item 20           Subsection 21(2A)

 

11.    This item repeals the current subsection 21(2A) in Subdivision B of Division 2 of Part 2 of the Act and substitutes a new subsection 21(2A).

 

12.    Currently subsection 21(2A) provides that paragraphs 21(2)(d), (e) and (f) of the Act are taken to be satisfied only if the Minister is satisfied that the person has, before making the application under Part 2 of the Act, sat and successfully completed a test approved in a determination under section 23A.

 

13.   Paragraphs 21(2)(d), (e) and (f) provide that, in order for a person to be eligible to become a citizen, the Minister must be satisfied that the person:

·          understands the nature of the application under subsection 21(1) to become an Australian citizen;

·          possesses a basic knowledge of the English language; and

·          has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.

 

14.   New subsection 21(2A) provides that paragraphs 21(2)(d), (e) and (f) are taken to be satisfied only if the Minister is satisfied that:

·          the person has sat a test approved in a determination under section 23A;

·          the person was eligible to sit that test (worked out in accordance with that determination);

·          the person started that test within the period worked out in accordance with that determination and completed that test within the period (the “relevant test period”) worked out in accordance with that determination; and

·          the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.

 

15.   The purpose of this item is to remove the requirement that a person must sit and successfully complete a citizenship test before making an application under Part 2 of the Act and replace this with a requirement that the applicant must sit and successfully complete a test within a certain period of time. 

 

16.   This amendment is in line with the amendment made by item 32 of this Schedule, which provides that the Minister may determine the period within which a person must start the test and for the period within which a person must complete the test.

 

17.   This tranche of amendments is consistent with the Australian Citizenship Test Review Committee’s recommendation that the process of applying for citizenship and sitting the test be streamlined.  By removing the requirement that an applicant must sit and successfully complete the test before applying for citizenship, the amendments will allow eligible applicants in many circumstances to meet all the requirements for citizenship on the same day, including successfully completing the test.  However, to ensure that a person will not be eligible for citizenship if they are unable to successfully complete the test within a reasonable period of time, the amendments allow the Minister to specify a period of time within which a person must start the test and complete the test.

 

Item 25           Paragraph 21(3)(d)

 

18.    This item repeals the current paragraph 21(3)(d) in Subdivision B of Division 2 of Part 2 of the Act and substitutes a new paragraph.  It also inserts a note which provides that the heading to subsection 21(3) is altered by omitting “Permanent physical” and substituting “Physical”.

 

19.    Current subsection 21(3) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person meets the requirements of paragraphs 21(3)(a) - (f).  In particular, current paragraph 21(3)(d) contains the requirement that the person has a permanent physical or mental incapacity, at the time the person made the application under Part 2 of the Act, that means the person is not capable of understanding the nature of the application at that time. 

 

20.   New paragraph 21(3)(d) contains the requirement that the person satisfies new subsection 21(3A) or (3B), as inserted by item 27 of this Schedule.

 

Item 27           After subsection  21(3)

 

21.    This item inserts new subsections 21(3A) and (3B) in Subdivision B of Division 2 of Part 2 of the Act.

 

22.   New subsection 21(3A) contains the same words as current paragraph 21(3)(d) and is intended to have the same legal effect.

 

23.   New subsection 21(3B) provides that a person satisfies the subsection if the person has a physical or mental incapacity, at the time the person made the application, that is a result of the person having suffered torture or trauma outside Australia and that means the person meets the requirements of new paragraph 21(3B)(a), (b) or (c).

 

24.   New paragraph 21(3B)(a) contains the requirement that the person is not capable of understanding the nature of the application at the time the person made the application.  New paragraph 21(3B)(b) contains the requirement that the person is not capable of demonstrating a basic knowledge of the English language at that time.  New paragraph 21(3B)(c) contains the requirement that the person is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

 

25.   Relevantly, a person need only satisfy the requirements of paragraph 21(3B)(a), (b) or (c) in order to satisfy subsection 21(3B).

 

26.   New subsection 21(3B) has been inserted in response to a recommendation of the Australian Citizenship Test Review Committee.  The Committee considered that the current exemption criteria do not take into consideration the effect of severe and chronic symptoms resulting from the experience of torture and trauma.  The purpose of new subsection 21(3B) is to ensure that certain people who have a physical or mental incapacity as a result of having suffered torture or trauma outside Australia, are exempted from the requirement to sit a citizenship test.

                                                                                       

Item 30           Subsection 21(5)

 

27.    This item repeals the current subsection 21(5) and substitutes a new subsection.

 

28.   The current subsection 21(5) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is under 18 years of age at the time the person made the application.  The current subsection does not require a person to be a permanent resident.

 

29.   New subsection 21(5) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is under 18 years of age at the time of application and is a permanent resident at the time of application and at the time of the Minister’s decision.

 

30.   “Permanent resident” is defined in section 5 of the Act to mean, among other things, that a person is in Australia and holds a permanent visa.

 

31.   The purpose of new subsection 21(5) is to ensure the integrity of the citizenship and migration programs by preventing an applicant for citizenship by conferral who is under 18 from being eligible for citizenship if they are not eligible for a permanent visa under the Migration Act 1958 and Migration Regulations 1994 .  This is consistent with subclauses 21(2) (relating to general eligibility), 21(3) (relating to applicants with a physical or mental incapacity) and 21(4) (relating to applicants aged 60 or over or with a hearing, speech or sight impairment), all of which require the applicant to be a permanent resident at the time of application and at the time of decision to be eligible for citizenship.

 



Item 32           After subsection 23A(5)

 

32.    This item inserts new subsection 23A(5A) after current subsection 23A(5) in Subdivision B of Division 2 of Part 2 of the Act. New subsection 23A(5A) provides that a determination under subsection 23A(1) may provide for the period within which a person must start the test and for the period within which a person must complete the test.

 

33.   Subsection 23A(1) provides that the Minister must, by written determination, approve a test for the purposes of subsection 21(2A) of the Act, as amended by item 20 of this Schedule.

 

34.   The purpose of new subsection 23A(5A) is to allow the Minister to specify a period of time within which an applicant for citizenship by conferral must start the test and for the period within which a person must complete the test.  This amendment is consistent with the Australian Citizenship Test Review Committee’s recommendation that the process of applying for citizenship and sitting the test be streamlined.

 

35.   The combined effect of new subsections 23A(5A) and 21(2A) is that an applicant for citizenship by conferral must sit and successfully complete a citizenship test within a period of time specified by the Minister.

 

Item 40           After paragraph 26(1)(b)

 

36.   This item inserts new paragraph 26(1)(ba) after current paragraph 26(1)(b) in Subdivision B of Division 2 of Part 2 of the Act.  Subsection 26(1) provides that a person must make a pledge of commitment to become an Australian citizen unless the person meets the requirements of paragraph 26(1)(a), (b) or (c). In particular, paragraph 26(1)(b) provides that a person must make the pledge of commitment to become an Australian citizen unless the person has a permanent physical or mental incapacity at the time the person made the application which means the person is not capable of understanding the nature of the application at that time.

 

37.   New paragraph 26(1)(ba) provides that the pledge of commitment must be made unless the person has a mental or physical incapacity, at the time the person made the application to become an Australian citizen, that is the result of the person having suffered torture or trauma outside Australia and that means the person meets the requirements in subparagraph 26(1)(ba)(i), (ii) or (iii). 

 

38.   Subparagraph 26(1)(ba)(i) contains the requirement that the person is not capable of understanding the nature of the application at the time the person made the application.  Subparagraph 26(1)(ba)(ii) contains the requirement that the person is not capable of demonstrating a basic knowledge of the English language at that time.  Subparagraph 26(1)(ba)(iii) contains the requirement that the person is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

 

39.   The purpose of this item is to exempt from the requirement to make a pledge of commitment, certain persons who suffer severe or chronic symptoms resulting from the experience of torture or trauma. The wording in new paragraph 26(1)(ba) mirrors the wording in new subsection 21(3B), as inserted by item 27 of this Schedule, to ensure that certain people who, as a result of suffering torture or trauma outside Australia are exempted from the requirement to sit a citizenship test, are also exempted from the requirement to make a pledge of commitment to become an Australian citizen. 

 

Item 44           Subsection 46(1A)

 

40.   This item repeals the current subsection 46(1A) and substitutes a new subsection in Part 3 of the Act.

 

41.   The purpose of this item is to ensure that the application fee prescribed in the regulations may continue to include a component that relates to the cost of administering the citizenship test.

 

42.   Section 46 deals with application requirements under the Act.  Currently subsection 46(1A) provides that the fee prescribed by the regulations for applications made under section 21 of the Act, in relation to persons who have sat a citizenship test or tests approved in a determination under section 23A of the Act, may include a component that relates to the sitting of that test or those tests. Subsection 46(1A) therefore reflects the current requirement that a person must sit the citizenship test before making an application for citizenship under section 21 of the Act.

 

43.    New subsection 21(2A), as amended by item 20 of this Schedule, removes the requirement that a person must successfully complete a citizenship test before making an application for citizenship under section 21 of the Act.  To ensure consistency in the Act, subsection 46(1A) must be amended in line with the amendments to subsection 21(2A).

 

44.   New subsection 46(1A) provides that for applications made under section 21 by persons who in order to be eligible for Australian citizenship under subsection 21(2) (relating to general eligibility for citizenship) must sit a citizenship test approved in a determination under section 23A, the fee prescribed by the regulations may include a component that relates to the sitting of that test. Subsection 46(1A) applies in relation to persons who must sit a citizenship test in order to be eligible to become an Australian citizen under subsection 21(2) of the Act.

 

Item 50           Application

 

45.   This item deals with the application of some of the amendments to the Act contained in this Schedule.

 

46.   Subitem 50(1) provides that the amendments made by items 20, 25, 27, 30, 40 and 44 apply in relation to applications made on or after the commencement of those items. The commencement of those items is provided for by subclause 2(1) of this Act.  The purpose of subitem 50(1) is to ensure that applicants who make applications before the commencement of the above items are subject to the current provisions in the Act.

 

47.   Subitem 50(2) limits the scope of subitem 50(1) in relation item 20 of this Schedule.  Subitem 50(2) provides that the amendment made by item 20 does not apply in relation to a person if the person makes an application on or after the commencement of the item, and the Minister is satisfied that the person had, before that commencement, sat and successfully completed a citizenship test approved in a determination under section 23A.

 

48.   Subitem 50(2) ensures that a person who has sat and successfully completed a citizenship test (worked out in accordance with a determination under section 23A of the Act) before commencement, but makes an application for citizenship on or after commencement, will not be required to sit and successfully complete another citizenship test in accordance with a new determination made by the Minister under section 23A, in order to be eligible to become an Australian citizen under subsection 21(2).