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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

 

 

 

HOUSE

 

 

 

 

 

 

 

 

 

 

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

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS INTRODUCED

 

 

 

 

 

(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 Review Committee’) agreed to by Government and to strengthen the eligibility requirements for citizenship by conferral for applicants under 18 years of age. 

 

The Bill also amends the Act and the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitionals and Consequential Act) 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.

 

In particular, the Bill provides:

 

·          that certain applicants may be eligible for citizenship by conferral without a requirement to have sat and successfully completed a citizenship test if among other things, the Minister is satisfied that the person has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person is not capable of:

o    understanding the nature of the application at that time; or

o    demonstrating a basic knowledge of the English language at that time; or

o    demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time;

 

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

 

·          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;

 

·          for a special residence requirement for persons seeking to engage in specified activities that are of benefit to Australia and persons engaged in particular kinds of work requiring regular travel outside Australia;

 

·          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”;

 

·          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

 

·          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 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.

 

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

 

The amendments relating to the eligibility requirements for citizenship by conferral for applicants under 18 years of age seek to ensure that applicants who are under 18 must be permanent residents at the time of application and at the time of decision 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 this 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 this Act and anything in this Act not elsewhere covered by the table will commence on the day on which this Act receives the Royal Assent.

 

4.       Table Item 2 provides that Schedule 1 to this 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 this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

5.       Table Item 3 provides that Schedule 2 to this Act commences on the day this Act receives the Royal Assent.

 

6.       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.

 

7.       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)

 

8.       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 relating to citizenship test review etc.

 

Australian Citizenship Act 2007

 

Item 1             Section 19G

 

9.        This item omits “permanent” and substitutes “permanent or enduring” in 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.

 

10.   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 permanent or enduring physical or mental incapacity (rather than a “permanent” physical or mental incapacity).

 

11.   This amendment is consequential to the amendment made by item 3, which provides that certain applicants may be eligible for citizenship by conferral without a requirement to have sat and successfully completed a citizenship test if among other things, the Minister is satisfied that the person has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person is not capable of: understanding the nature of the application at that time; or demonstrating a basic knowledge of the English language at that time; or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

 

12.   The word “permanent” is substituted with “permanent or enduring” from the simplified outline in section 19G to ensure that the explanation is consistent with the amendment made by item 3.

 

Item 2              Subsection 21(2A)

 

13.    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).

 

14.    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.

 

15.   Paragraphs 21(2)(d), (e) and (f) provide that, in order for a person to be eligible to become an Australian 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.

 

16.   New subsection 21(2A) provides that paragraphs 21(2)(d), (e) and (f) are taken to be satisfied if and 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.

 

17.   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. 

 

18.   This amendment is in line with the amendment made by item 6 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.

 

19.   This tranche of amendments is consistent with the 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 3              Paragraph 21(3)(d)

 

20.    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 contains a note which alters the heading to subsection 21(3) by omitting “Permanent” and substituting “Permanent or enduring”.

 

21.    Current paragraph 21(3)(d) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person has a permanent physical or mental incapacity at the time of application that means the person is not capable of understanding the nature of the application at that time. 

 

22.   New paragraph 21(3)(d) provides that a person “has a permanent or enduring physical or mental incapacity at the time the person made the application, that means the person: (i) is not capable of understanding the nature of the application at that time; or (ii) is not capable of demonstrating a basic knowledge of the English language at that time; or (iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and”.

 

23.   The purpose of this amendment is to implement a recommendation of the Review Committee.  The Review Committee recommended that amendments be made to include an inability to demonstrate a basic knowledge of English and an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship due to mental incapacity, resulting in those individuals not being required to sit a test. 

 

24.   The amendment to paragraph 21(3)(d) includes persons who have a permanent or enduring physical or mental incapacity at the time the person made the application to ensure these persons who are not capable of understanding or demonstrating the criteria provided for in subsection 21(2) are not required by subsection 21(3) to have sat and successfully completed a citizenship test under subsection 21(2A) to be eligible to become an Australian citizen..

                                                                                       

Item 5             Subsection 21(5)

 

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

 

26.   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.

 

27.   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 on the application.

 

28.   “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.

 

29.   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 the holder of a permanent visa under the Migration Act 1958 and Migration Regulations 1994 .  This is consistent with subsection 21(2) (relating to general eligibility), 21(3) (relating to applicants with a permanent 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 6             After subsection 23A(5)

 

30.    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.

 

31.   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 2 of this Schedule.

 

32.   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 Review Committee’s recommendation that the process of applying for citizenship and sitting the test be streamlined.

 

33.   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 7             Paragraph 26(1)(b)

 

34.   This item repeals and substitutes 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.

 

35.   Substituted paragraph 26(1)(b) provides that the pledge of commitment must be made unless the person “has a permanent or enduring physical or mental incapacity, at the time the person made the application to become an Australian citizen, that means the person: (i) is not capable of understanding the nature of the application at that time; or (ii) is not capable of demonstrating a basic knowledge of the English language at that time; or (iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; or”.

 

36.   The purpose of this item is to exempt from the requirement to make a pledge of commitment, persons who have a permanent or enduring physical or mental incapacity at the time the person made the application to become an Australian citizen as provided in item 3 above.

 

 

 

 

Item 8             Subsection 46(1A)

 

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

 

38.   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.

 

39.   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.

 

40.    New subsection 21(2A), as amended by item 2 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).

 

41.   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 have sat 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 have sat a citizenship test in order to be eligible to become an Australian citizen under subsection 21(2) of the Act.

 

Item 9             Application

 

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

 

43.   Subitem 9(1) provides that the amendments made by items 2, 3, 5, 7 and 8 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 9(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.

 

44.   Subitem 9(2) limits the scope of subitem 9(1) in relation to item 2 of this Schedule.  Subitem 9(2) provides that the amendment made by item 2 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.

 

45.   Subitem 9(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).

 

SCHEDULE 2 - Amendments relating to special residence requirement

 

Australian Citizenship Act 2007

Item 1 - Paragraph 21(2)(c)

 

46.   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)”.

 

47.   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.

 

48.   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)

 

49.   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)”.\

 

50.   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.

 

51.   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)

 

52.   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)”.

 

53.   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.

 

54.   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)

 

55.   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”.

 

56.   This item contains a note which provides that the heading to section 22 is replaced by the heading “General residence requirement”.

 

57.   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.

 

58.   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

 

59.   This item inserts new section 22A (Special residence requirement—persons engaging in activities that are of benefit to Australia) after section 22 of Subdivision B of Division 2 of Part 2 of the Act.

 

60.   The purpose of new section 22A is to provide that an applicant satisfies the special residence requirement if the applicant is seeking to engage in an activity specified in a legislative instrument; the applicant’s engagement in that activity would be of benefit to Australia; the applicant needs to be an Australian citizen in order to engage in that activity; and in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement in section 22 of the Act.

 

61.   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 engage in an activity under new subsection 22C(1); the applicant’s engagement in that activity would be of benefit to Australia; the applicant needs to be an Australian citizen in order to engage in that activity; and in order for the applicant to engage in that activity, 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 holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity; 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.

 

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

 

63.   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.

 

64.   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.

 

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

 

66.   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.

 

67.   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.

 

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

 

69.   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.

 

70.   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

·          for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; 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.

 

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

 

72.   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.

 

73.   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.

 

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

 

75.   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.

 

76.   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.

 

77.   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. 

 

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

 

79.   New subsection 22C(1) provides that the Minister may, by legislative instrument, specify activities for the purposes of new subparagraph 22A(1)(a)(i).

 

80.   The purpose of this amendment is to enable the Minister to specify in a legislative instrument the activities that an applicant may be seeking to engage in to satisfy the special residence requirement in new section 22A of the Act.

 

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

 

82.   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 engaged in that activity in new subsection 22C(1) in order to satisfy the special residence requirement in new section 22A of the Act.

 

83.   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).

 

84.   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)

 

85.   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.

 

86.   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.

 

87.   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

 

88.   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”.

 

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

 

90.   This amendment is consequential to the amendments made to the Act by item 5 above.

Item 8 - Application

 

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

 

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