2013 - 2014

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

AUSTRALIAN CITIZENSHIP AND OTHER LEGISLATION AMENDMENT BILL 2014

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon. Scott Morrison MP)

 

 

 

Australian Citizenship and Other Legislation Amendment Bill 2014

 

OUTLINE

 

The Australian Citizenship and Other Legislation Amendment Bill 2014 (the Bill) amends the Australian Citizenship Act 2007 (the Act) to insert, clarify and strengthen key provisions of the Act relating to:

• extending good character requirements;
• clarifying residency requirements and related matters;
• circumstances in which a person’s approval as an Australian citizen may or must be cancelled;
• circumstances in which the Minister may defer a person making the pledge of commitment to become an Australian citizen;
• circumstances in which a person’s Australian citizenship may be revoked;
• the power of the Minister to specify certain matters in a legislative instrument;
• the use of personal information obtained under the Migration Act 1958 (the Migration Act) or the Migration Regulations 1994 (the Migration Regulations) for the purposes of the Act and the Australian Citizenship Regulations 2007 (Citizenship Regulations);
• the disclosure of personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act or the Migration Regulations; and
• minor technical amendments.

The Bill also amends the Migration Act to enable the use of personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act and the Migration Regulations, and to enable the disclosure of personal information obtained under the Migration Act or the Migration Regulations for the purposes of the Act and the Citizenship Regulations.

 

In particular, the Bill amends the Act to:

• insert a definition of “spouse” and a definition of “de facto partner” to mirror the definitions of those terms in the Migration Act;
• clarify that for the purposes of citizenship by adoption (where a person is adopted under a law of an Australian State or Territory), the adoption process must have commenced before the person turned 18;
• clarify that for the purposes of the automatic acquisition of Australian citizenship, a person is not taken to be ordinarily resident in Australia throughout the period of 10 years beginning on the day the person was born if they were born to a parent who had privileges or immunities under the Diplomatic Privileges and Immunities Act 1967, the Consular Privileges and Immunities Act 1972 , the International Organisations (Privileges and Immunities) Act 1963 and the Overseas Missions (Privileges and Immunities) Act 1995 (this will not affect the position of children born in Australia to a foreign diplomat if their other parent is an Australian citizen or permanent resident);
• allow an applicant for citizenship by conferral who is aged under 18 and who holds a permanent visa of a kind prescribed in a legislative instrument and who is of good character to be eligible for citizenship without first entering Australia;
• provide that an applicant who is aged under 18 and who made an application for citizenship by conferral that was not approved cannot apply for merits review of that decision unless they are a permanent resident, or hold a permanent visa of a kind prescribed in an instrument;
• enable the Minister to make a legislative instrument which sets out the kind of permanent visa that can be held by a person who is aged under 18 in order to be eligible to be approved as an Australian citizen by conferral without having to have entered Australia on that visa, and in order to be eligible to seek merits review of a decision to refuse to approve them becoming an Australian citizen;
• amend key provisions concerning the general and special residence requirements for Australian citizenship, including clarifying when the four year period of a person’s residence in Australia commences for the purposes of the general residence requirement in the context of Australian citizenship by conferral;
• enable the Minister to make a legislative instrument which sets out the circumstances in which the Minister may treat a period as one in which a person was not present in Australia as an unlawful non-citizen for the purposes of meeting the general residence and special residence requirements for citizenship;
• clarify the scope of the Minister’s discretion for residence requirements for spouses and de facto partners of Australian citizens, and spouses or de facto partners of deceased Australian citizens;
• require all citizenship applicants to be of good character in order to be eligible for Australian citizenship, including applicants under 18 years of age;
• extend the bar on approval as an Australian citizen related to criminal offences to all applicants for citizenship;
• extend the offence provisions in the Act to capture more modern sentencing practices, including circumstances where a person is subject to an order of a court for home detention, an order of a court requiring the person to participate in a residential scheme or program, or circumstances in which the person has not been sentenced to a term of imprisonment but is nevertheless under an obligation to a court;
• provide for the mandatory cancellation of approval of Australian citizenship where the applicant is required to make the pledge of commitment before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would be subject to prohibitions on approval related to identity, national security or criminal offences;
• provide for the discretionary cancellation of approval of Australian citizenship where the applicant is required to make the pledge of commitment before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements in section 21 of the Act for being approved as an Australian citizen;
• provide the Minister with the discretion to defer a person making the pledge of commitment to become an Australian citizen if the Minister is considering cancelling the person’s approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because of identity, having been assessed as a risk to security or being subject to the bar on approval related to criminal offences;
• provide the Minister with the discretion to defer a person making the pledge of commitment to become an Australian citizen if the Minister is considering cancelling the person’s approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements in section 21 of the Act for being approved as an Australian citizen;
• increase the maximum period of deferral for making the pledge of commitment to become an Australian citizen from 12 months to 2 years;
• replace the current automatic provision in the Act which deems a citizen by descent never to have been a citizen, in spite of being approved by the Minister, if they did not have an Australian citizen parent at time of birth (section 19A), with a discretion for the Minister to revoke a person’s Australian citizenship if the person has been approved as an Australian citizen by descent and the Minister is satisfied that the approval should not have been given (except in circumstances where the revocation decision would result in the person becoming stateless);
• provide the Minister with the discretion to revoke a person’s Australian citizenship where acquired by descent, conferral or under intercountry adoption arrangements if the Minister is satisfied that the person obtained Australian citizenship as a result of fraud or misrepresentation in certain circumstances regardless of whether the person was convicted of an offence in relation to the fraud or misrepresentation (and regardless of whether the fraud or misrepresentation was perpetrated by the Australian citizen themselves, or some other person);
• provide that the Citizenship Regulations may confer on the Minister the power to make legislative instruments;
• clarify that the Minister, the Secretary or an APS employee in the Department may use personal information obtained under the Migration Act or the Migration Regulations for the purposes of the Act or the Citizenship Regulations;
• clarify that the Minister, the Secretary or an APS employee in the Department of Immigration and Border Protection (the Department) may disclose personal information obtained under the Act or the Citizenship Regulations to the Minister, the Secretary or an officer (within the meaning of the Migration Act) for the purposes of the Migration Act or the Migration Regulations; and
• make certain consequential amendments.

 

The Bill also amends the Migration Act to:

• allow the Minister, the Secretary or an officer to use personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act or the Migration Regulations; and
• allow the Minister, the Secretary or an officer to disclose personal information obtained under the Migration Act or the Migration Regulations to the Minister, the Secretary or an APS employee in the Department for the purposes of the Act and the Citizenship Regulations, subject to a specified exception.

FINANCIAL IMPACT STATEMENT

 

The financial impact of these amendments is low.  The estimated costs associated with the implementation of the proposed amendments will be met from within the Department’s existing funding.

 

 

AUSTRALIAN CITIZENSHIP AND OTHER LEGISLATION AMENDMENT BILL 2014

 

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 and Other Legislation Amendment Act 2014 .

Clause 2                      Commencement

2.               Clause 2 of the Bill sets out the times at which the various provisions of the Act commence.

3.               Subclause 2(1) of the Bill 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.  Any other statement in column 2 has effect according to its terms.

4.              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 this Act receives the Royal Assent.

5.              Table item 2 provides that Schedule 1 will commence on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

6.              The note in subclause 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted.  The table will not be amended to deal with any later amendments to this Act.

7.               Subclause 2(2) of the Bill provides that any information in column 3 of the table is not part of this Act.  Information may be inserted in this column, or information in it may be edited, in any published version of the Act.  There is currently no information in column 3 of the table.

Clause 3                      Schedule s

8.               Clause 3 of the Bill provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

9.               The purpose of this clause is to clarify that Schedule 1 to the Bill sets out the amendments to the Act, and that the particular provisions mentioned in that Schedule are amended in accordance with the particular items in that Schedule.

Schedule 1-Amendments

 

Part 1-Amendments

 

Australian Citizenship Act 2007

 

Item 1             Section 2A

10.           This item repeals the third paragraph under the heading “Ceasing to be an Australian citizen” of the current simplified outline of the Act in section 2A, and substitutes a new paragraph.

11.           The third paragraph of the current simplified outline of the Act concerning the circumstances in which a person can cease to be an Australian citizen provides:

If you did not automatically become an Australian citizen, the Minister can revoke your citizenship in certain circumstances.

12.           The new third paragraph of the simplified outline of the Act concerning the circumstances in which a person can cease to be an Australian citizen provides:

If you did not automatically become an Australian citizen, the Minister can revoke your citizenship in certain circumstances (for example, where there has been fraud or misrepresentation).

13.           This is a consequential amendment to item 66 below which provides the Minister with the discretion to revoke a person’s Australian citizenship, where acquired by descent, conferral or under intercountry adoption arrangements, where he or she is satisfied that the person obtained the Minister’s approval to become an Australian citizen as a result of fraud or misrepresentation, whether that fraud or misrepresentation was committed by the Australian citizen themselves or by some other person, and whether or not the fraud or misrepresentation constituted an offence or part of an offence by any person.

Item 2             Section 3

14.           This item inserts “(1)” before the words “In this Act” in section 3 of the Act.

15.           This is a consequential amendment to item 8 below which inserts subsection 3(2) in the Act (which enables the Minister to prescribe a certain kind of permanent visa for the purposes of provisions of the Act concerning citizenship by conferral for persons aged under 18).

Item 3             Section 3 (definition of artificial conception procedure )

16.   This item repeals the definition of “artificial conception procedure” in section 3 of the Act.

17.   “Artificial conception procedure” is currently defined as follows :

Artificial conception procedure: includes:

·          artificial insemination; and

·          the implantation of an embryo in the body of a woman.

18.   As the term “artificial conception procedure” no longer appears in any operative provisions in the Act, the definition is redundant. The purpose of this amendment is therefore to remove a redundant definition. 

Item 4             Section 3 (definition of de facto partner )

19.           This item omits “meaning given by the Acts Interpretation Act 1901 ” from the definition of “de facto partner” in section 3 of the Act, and substitutes it with “same meaning as in the Migration Act 1958 ”.

20.           The current definition of “de facto partner” in section 3 of the Act provides that

de facto partner has the meaning given by the Acts Interpretation Act 1901 .

21.           Section 2D of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act) provides that for the purposes of a provision of an Act that is a provision in which

de facto partner has the meaning given by this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if:

• the person is in a registered relationship with the other person under section 2E; or
• the person is in a de facto relationship with the other person under section 2F.

22.           Section 2F of the Acts Interpretation Act deals with de facto relationships.  Subsection 2F(1) provides that for the purposes of paragraph 2D(b), a person is in a de facto relationship with another person if the persons:

• are not legally married to each other; and
• are not related by family (see subsection (6)); and
• have a relationship as a couple living together on a genuine domestic basis.

23.           Subsection 2F(2) of the Acts Interpretation Act provides that in determining for the purposes of paragraph (1)(c) whether 2 persons have a relationship as a couple, all the circumstances of their relationship are to be taken into account, including any or all of the following circumstances:

• the duration of the relationship;
• the nature and extent of their common residence;
• whether a sexual relationship exists;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• the ownership, use and acquisition of their property;
• the degree of mutual commitment to a shared life;
• the care and support of children;
• the reputation and public aspects of the relationship.

24.           Subsection 2F(5) of the Acts Interpretation Act provides that for the purposes of subsection (1), a de facto relationship can exist even if one of the persons is legally married to someone else or is in a registered relationship (within the meaning of section 2E) with someone else or is in another de facto relationship.

25.           The new definition of “de facto partner” provides that de facto partner has the same meaning as in the Migration Act 1958 .

26.           “De facto partner” is defined in section 5CB of the Migration Act.  Subsection 5CB(1) of the Migration Act provides that for the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

27.           Subsection 5CB(2) of the Migration Act provides that for the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

• they have a mutual commitment to a shared life to the exclusion of all others; and
• the relationship between them is genuine and continuing; and
• they live together, or do not live separately and apart on a permanent basis; and
• they are not related by family (see subsection (4)).

28.           Subsection 5CB(3) of the Migration Act provides that the Migration Regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist.  The Migration Regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

29.           The purpose of the proposed new definition is to align the definition of “de facto partner” with the definition of “spouse”, in the sense that both expressions are to have the same meaning as in the Migration Act.  This promotes clarity such that it is not necessary for two different Acts to be consulted regarding the meaning of the two expressions.

30.           The definition in the Migration Act makes more explicit reference to the need for a de facto couple to be in a relationship “to the exclusion of all others”, for their relationship to be “genuine and continuing” and for them not to be living “permanently apart”.  These considerations are also relevant to the Government’s policy intent in relation to the Act.

31.           The purpose of this amendment is to ensure that “de facto partner” in the Act has the meaning given by the Migration Act, rather than the meaning given by the Acts Interpretation Act 1901 . This amendment ensures consistency with the definition of “spouse” inserted by item 6 below, which provides that spouse has the same meaning as in the Migration Act.

Item 5             Section 3 (at the end of the definition of permanent visa )

32.           This item inserts a note in section 3 of the Act at the end of the definition of permanent visa .

33.           Permanent visa is defined in section 3 of the Act as follows:

Permanent visa has the same meaning as in the Migration Act 1958 .

34.           The new note to this definition provides:

Note:   See also subsection (2).

35.           This is a consequential amendment to item 8 below which inserts new subsection 3(2) in the Act.

Item 6             Section 3

36.           This item inserts a new definition of “spouse” in section 3 of the Act.

37.           The new definition of “spouse” in section 3 of the Act provides:

spouse has the same meaning as in the Migration Act 1958 .

38.           “Spouse” is defined in section 5F of the Migration Act.  Subsection 5F(1) of the Migration Act provides that for the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

39.           Subsection 5F(2) of the Migration Act provides that for the purposes of subsection (1), persons are in a married relationship if:

• they are married to each other under a marriage that is valid for the purposes of this Act; and
• they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
• the relationship between them is genuine and continuing; and
• they live together, or do not live separately and apart on a permanent basis.

40.           The purpose of this amendment is to clarify that “spouse” has the same meaning as in the Migration Act.

41.           The new definition of “spouse” in section 3 of the Act is relevant to the discretion in subsection 22(9) of the Act.

42.           Subsection 22(9) of the Act sets out the circumstances in which the Minister may treat a period as one in which a person who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen as one in which the person was present in Australia for the purposes of paragraph 22(1)(b) or paragraph 22(1)(c) of the Act.

43.           Section 22 sets out the general residence requirement for Australian citizenship by conferral. New paragraph 22(1)(b) (inserted by item 27 below) provides that subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if the person was present in Australia throughout the period (the relevant period ) beginning on the day after the start day and ending on the day before the day the person made the application.  Amended paragraph 22(1)(c) (see item 28) requires the person to have been present in Australia as a permanent resident throughout the period of 12 months immediately before the day the person made the application.

44.           The new definition of “spouse” reflects the policy position that in order to be eligible for the exercise of the discretion in subsection 22(9) of the Act, the relationship between the applicant and their Australian citizen spouse must be genuine and continuing (among other requirements).

Item 7             Section 3

45.           This item inserts a new definition of “substantive visa” into section 3 of the Act.

46.           The new definition of “substantive visa” is the same as the definition in the Migration Act.  This definition is found in section 5 of the Migration Act:

"substantive visa" means a visa other than:

• a bridging visa ; or
• a criminal justice visa ; or
• an enforcement visa .

47.           This amendment is consequential to the insertion into the Act of new paragraph 12(7)(a), in item 12, below.  New subsection 12(7) contains an exception to the “ten year rule” in paragraph 12(1)(b) of the Act.  Paragraph 12(1)(b) of the Act provides for the automatic acquisition of Australian citizenship where a child was born in Australia and was ordinarily resident in Australia up until their 10 ^th  birthday.

Item 8             At the end of section 3

48.           This item inserts new subsection 3(2) in the Act.

49.           New subsection 3(2) of the Act provides that the Minister may, by legislative instrument, prescribe a kind of permanent visa for the purposes of subparagraph 21(5)(b)(ii) and new paragraph 52(2A)(b).

50.           This is a consequential amendment to items 25 and 71 below, which are concerned with the circumstances in which a person under the age of 18 will be eligible to be approved as an Australian citizen, and the circumstances in which such a person will be eligible to seek review of the Minister’s decision not to approve them becoming an Australian citizen under section 24.

 

Item 9             Subsection 6A(1)

51.           This item omits “section 3” from subsection 6A(1) of the Act, and substitutes “subsection 3(1)”.

52.           This is a consequential amendment to item 8 above which inserts subsection 3(2) into the Act.

Item 10           Section 11A

53.           This item omits “citizenship for abandoned children: see section 14; and” from the simplified outline in current section 11A. 

54.           This is a consequential amendment to item 14 below which repeals current section 14.

Item 11           Subsection 12(2) (heading)

55.           This item repeals the current heading to subsection 12(2) of the Act, and substitutes a new heading.

56.           The current heading to subsection 12(2) of the Act provides:

Enemy occupation

57.           The new heading to subsection 12(2) of the Act provides:

Exception - enemy occupation

58.           Subsection 12(2) of the Act sets out an exception to when a person becomes an Australian citizen by birth under subsection 12(1).  Subsection 12(2) provides that however, a person is not an Australian citizen under this section if, at the time the person is born:

• a parent of the person is an enemy alien; and
• the place of birth is under occupation by the enemy;

unless, at that time, the other parent of the person:

§   is an Australian citizen or a permanent resident; and

§   is not an enemy alien.

59.           The purpose of this amendment is to clarify in the heading to subsection 12(2) of the Act that a person will not become an Australian citizen under subsection 12(1) of the Act if subsection 12(2) applies to them.

Item 12           At the end of section 12

60.           This item adds new subsections (3) to (9) at the end of section 12 of the Act.

Exception-parent entitled to privileges or immunities

61.           New subsection 12(3) of the Act provides that paragraph 12(1)(b) does not apply to a person born in Australia if, at any time during the 10-year period referred to in that paragraph, a parent of the person was entitled to any privileges or immunities under any of the following Acts:

• the Diplomatic Privileges and Immunities Act 1967 ;
• the Consular Privileges and Immunities Act 1972 ;
• the International Organisations (Privileges and Immunities) Act 1963 ; and
• the Overseas Missions (Privileges and Immunities) Act 1995 . 

62.           Paragraph 12(1)(b) of the Act currently provides that a person born in Australia is an Australian citizen if and only if the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

63.           “Ordinarily resident” is defined in section 3 of the Act as follows:

Ordinarily resident : a person is taken to be ordinarily resident in a country if and only if:

• he or she has his or her home in that country; or
• that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.

However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.

64.           The purpose of this amendment is to clarify that children born in Australia to a parent who had diplomatic privileges and immunities under the Diplomatic Privileges and Immunities Act 1967 , the Consular Privileges and Immunities Act 1972 , the International Organisations (Privileges and Immunities) Act 1963   or the Overseas Missions (Privileges and Immunities) Act 1995 at any time during the 10 year period do not acquire Australian citizenship on their tenth birthday (assuming a parent of the person is not an Australian citizen or a permanent resident within the meaning of paragraph 12(1)(a)).

65.           This amendment reflects the policy position that a child of a diplomat is not considered to be “ordinarily resident” in Australia for the purposes of paragraph 12(1)(b) of the Act, but rather, is considered to be in Australia for a special or temporary purpose only.

66.           To avoid doubt, this provision will not affect the position of children born in Australia where one parent is an Australian citizen or permanent resident and the other parent is a foreign diplomat.  Any child born in Australia to an Australian citizen or permanent resident parent automatically acquires Australian citizenship under paragraph 12(1)(a)).

 

Exception-unlawful non-citizen

67.           New subsection 12(4) provides that paragraph 12(1)(b) of the Act does not apply to a person born in Australia if, at any time during the 10-year period referred to in paragraph 12(1)(b), the person was present in Australia as an unlawful non-citizen.

68.           Paragraph 12(1)(b) of the Act currently provides that a person born in Australia is an Australian citizen if and only if the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.  The definition in section 3 of the Act generally provides that a person is ordinarily resident in Australia if he or she has his or her home or permanent abode in Australia and is not in Australia for a special or temporary purpose. 

69.           The purpose of new subsection 12(4) is to provide that a child born in Australia does not acquire Australian citizenship on their tenth birthday if at any time during the 10-year period referred to in paragraph 12(1)(b) the person was present in Australia as an unlawful non-citizen. 

Exception-no visa

70.           New subsection 12(5) provides that paragraph 12(1)(b) does not apply to a person born in Australia if, at any time during the 10-year period referred to in paragraph 12(1)(b) the person was outside Australia and, at that time, the person did not hold a visa permitting the person to travel to, enter and remain in Australia.

71.           Paragraph 12(1)(b) of the Act currently provides that a person born in Australia is an Australian citizen if and only if the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.  The definition in section 3 of the Act generally provides that a person is ordinarily resident in Australia if he or she has his or her home or permanent abode in Australia and is not in Australia for a special or temporary purpose. 

72.           The purpose of new subsection 12(5) is to provide that a child born in Australia does not acquire Australian citizenship on their tenth birthday if at any time during the 10-year period referred to in paragraph 12(1)(b) the person was outside Australia and, at that time, the person did not hold a visa permitting the person to travel to, enter and remain in Australia. 

73.           New subsection 12(6) provides that new subsection 12(5) does not apply in relation to a person if the person was a New Zealand citizen when the person left Australia and the person was a New Zealand citizen throughout the period of the person’s absence from Australia.  This reflects the treatment given to New Zealand citizens under the Trans-Tasman Travel Agreement, which includes access to a special category visa, the subclass 444 visa.  This visa is granted on arrival in Australia and ceases on departure from Australia.  There is no facility to retain a subclass 444 visa for the duration of any absence from Australia.

Exception-status of parent

74.           New subsection 12(7) provides that paragraph 12(1)(b) does not apply to a person born in Australia if:

• a parent of the person did not hold a substantive visa at the time of the person’s birth; and
• that parent has entered Australia on one or more occasions before the person’s birth; and
• at any time during the period beginning on the day the parent last entered Australia and ending on the day of the person’s birth, that parent was present in Australia as an unlawful non-citizen.

75.           The purpose of new subsection 12(7) is to provide that a child born in Australia does not acquire Australian citizenship on their tenth birthday if a parent of the child did not hold a substantive visa at the time of the child’s birth, that parent has entered Australia on one or more occasions before the person’s birth and at any time during the period beginning on the day the parent last entered Australia and ending on the day of the person’s birth, that parent was present in Australia as an unlawful non-citizen.

Abandoned children

76.           New subsection 12(8) provides that a person found abandoned in Australia as a child:

• is taken to have been born in Australia; and
• is taken to be a person in relation to whom paragraph 12(1)(a) applies.  

77.           New subsection 12(9) provides that new subsection 12(8) applies unless and until it is proved:

• the person was outside Australia at any time before the person was found abandoned in Australia as a child; or
• the person is not a person in relation to whom paragraph 12(1)(a) applies.

78.           The purpose of new subsections 12(8) and 12(9) is to clarify the status of a child found abandoned in Australia.

79.           Citizenship for abandoned children is provided for in current section 14 of the Act.  Section 14 currently provides that, a person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved.

80.           Since the introduction of the Act in 2007, section 14 has not accurately reflected the historical basis for the introduction of the provision on abandoned children.  Current section 14 is the successor to a provision introduced into the Australian Citizenship Act 1948 (the 1948 Act) to meet Australia’s obligations under Article 2 of the Convention on the Reduction of Statelessness (CRS).  Articles 2 of the CRS provides that a foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State .

81.           Article 2 of the CRS generally requires that a child found abandoned be dealt with as a citizen by birth unless and until it is determined they are not a citizen by birth.  Originally the 1948 Act reflected this intention.   

82.           The amendment in new subsection 12(8) of the Act clarifies the intention of the abandoned child provision and ensures the language more closely reflects the original intent.  The amendments provide that a child found abandoned in Australia is presumed to be a citizen by birth as provided in current paragraph 12(1)(a) of the Act.  That is, the child is presumed to be born in Australia with a parent who is an Australian citizen, or a permanent resident at the time the child is born. 

83.           New subsection 12(9) of the Act provides for the exceptions to the presumption in new subsection 12(8).  New paragraph 12(9)(a) provides that the presumption of citizenship by birth, in new subsection 12(8), does not apply if the child is known to be physically outside Australia at any time before the child was found abandoned in Australia.  If the child is known to have been outside Australia, then the child has either arrived in Australia lawfully and its identity and nationality will be known, or it will have arrived as an unlawful non-citizen.  New paragraph 12(9)(b) provides that the presumption of citizenship by birth does not apply if the child does not meet the requirements of citizenship by birth in paragraph 12(1)(a) of the Act.  That is, if it has become clear that the child was not born in Australia, or if the child was born in Australia a parent of the child was not an Australian citizen or a permanent resident at the time of the child’s birth.

Item 13           Paragraph 13(a)

84.           This item inserts “where the adoption process began when the person was aged under 18” after “Territory” in paragraph 13(a) of the Act.

85.           Section 13 of the Act is concerned with automatic citizenship by adoption.  Section 13 currently provides that a person is an Australian citizen if the person is:

• adopted under a law in force in a State or Territory; and
• adopted by a person who is an Australian citizen at the time of the adoption, or by 2 persons jointly at least one of whom is an Australian citizen at that time; and
• present in Australia as a permanent resident at that time.

86.           The purpose of this amendment is to clarify that, in order to be an Australian citizen under section 13 of the Act, the adoption process referred to in paragraph 13(a) must have commenced before the person turned 18.

87.           This amendment seeks to prevent people from becoming Australian citizens under section 13 of the Act by being adopted in Australia as adults.  The amendment is particularly concerned with the potential for adults to seek to be adopted in Australia in order to circumvent the provisions of the Migration Act (for example, to avoid being removed from Australia after their visa has been cancelled) .

Item 14           Section 14

88.           This item repeals section 14 of the Act.  This amendment is consequential to the insertion of new subsections 12(8) and 12(9) by item 12, above.

89.           Item 14 repeals current section 14 of the Act.  Current section 14 of the Act provides for citizenship for abandoned children.  New subsections 12(8) and 12(9) inserted by item 12 provides for citizenship for abandoned children.  As such, current section 14 is redundant and can be repealed.

Item 15           Section 15A

90.           This item inserts a new dot point in the fourth paragraph of the simplified outline to Subdivision A of Division 2 of Part 2 of the Act in section 15A.

91.           The fourth paragraph of the simplified outline to Subdivision A of Division 2 of Part 2 of the Act in section 15A currently provides:

The Minister may be required to refuse your application on grounds relating to:

• non-satisfaction of identity: see subsection 17(3); or
• national security: see subsections 17(4) to (4B); or
• cessation of citizenship: see subsection 17(5).

92.           The new third dot point of the fourth paragraph of the simplified outline to Subdivision A of Division 2 of Part 2 of the Act in section 15A provides:

• offences: see subsection 17(4C); or

93.           This is a consequential amendment to item 18 below which inserts new subsection 17(4C) into the Act.

Item 16           Section 15A

94.           This item omits the sixth paragraph of the simplified outline to Subdivision A of Division 2 of Part 2 of the Act in section 15A.

95.           The sixth paragraph of the simplified outline to Subdivision A of Division 2 of Part 2 of the Act in section 15A currently provides:

You do not become an Australian citizen, even if the Minister approves you becoming an Australian citizen, unless a parent of yours was an Australian citizen at a particular time: see section 19A.

96.           This is a consequential amendment to item 19 below which repeals section 19A of the Act.

Item 17           Paragraph 16(2)(c)

97.           This item omits “, and the person is aged 18 or over at the time the person made the application” from paragraph 16(2)(c) of the Act.

98.           Paragraph 16(2)(c) of the Act currently provides that a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

• the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application - the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

99.           This amendment reflects the policy position that the Minister must be satisfied that an applicant for Australian citizenship under section 16 of the Act must be of good character at the time of the Minister’s decision on the application in order to be eligible to become an Australian citizen, regardless of the applicant’s age at the time the application was made.

100.       The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen under section 17 of the Act.  In practice, the effect of the amendment is that the Minister would now seek criminal history records for 16-17 year-olds.  However, if the Minister becomes aware of an applicant who has character issues and is aged younger than 16, it would be possible to assess that applicant against the character requirement.

Item 18           After subsection 17(4B)

101.       This item inserts new subsection 17(4C) after subsection 17(4B) in the Act.

102.       Section 17 of the Act is concerned with the Minister’s decision on an application to become an Australian citizen under section 16 (citizenship by descent). Subsection 17(1) provides that if a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

103.       Subsection 17(2) of the Act provides that subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or 16(3).

104.       Subsections 17(3), 17(4) and 17(4A) of the Act set out the circumstances in which the Minister must not approve the person becoming an Australian citizen.

105.       Item 18 inserts new subsection 17(4C) after subsection 17(4B) in the Act.  New subsection 17(4C) prevents the Minister from approving a person becoming an Australian citizen under section 17 if the person has committed an offence in certain circumstances.  New subsection 17(4C) replicates paragraphs 24(6)(a)-24(6)(h) of the current Act (reflecting amendments to current paragraphs 24(6)(f) and 24(6)(g)    in item 44 below) and inserts some additional provisions. 

106.       The purpose of this amendment, along with amendments in items 22 and 61, is to bring consistency to the citizenship programme by applying the bar on approval for criminal offences to all application streams.

107.       Under new subsection 17(4C) of the Act the Minister must not approve the person becoming an Australian citizen at a time when any of paragraphs 17(4C)(a) - 17(4C)(j) apply to the person.

108.       New paragraph 17(4C)(a) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person.

109.       The purpose of this amendment is to prevent the Minister from approving a person becoming an Australian citizen under section 17 of the Act at a time when the person is before the court in relation to an alleged commission of an offence, and those proceedings have not yet been finalised.  This amendment mirrors paragraph 24(6)(a) of the current Act.

110.       New paragraph 17(4C)(b) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when the person is confined to a prison in Australia.

111.       The purpose of this amendment is to prevent the Minister from approving a person becoming an Australian citizen under section 17 of the Act while the person is in prison.  This amendment mirrors paragraph 24(6)(b) of the current Act.

112.       New paragraph 17(4C)(c) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence.

113.       “Serious prison sentence” is defined in section 3 of the Act to mean a sentence of imprisonment for a period of at least 12 months.

114.       The purpose of this amendment is to prevent the Minister from approving a person becoming an Australian citizen under section 17 of the Act for 2 years after the end of the time the person has been in prison because they have been given a sentence of imprisonment of at least 12 months. This amendment mirrors paragraph 24(6)(c) of the current Act.

115.       New paragraph 17(4C)(d) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time if the person is a serious repeat offender in relation to a serious prison sentence - during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence.

116.       “Serious repeat offender” is defined in section 3 of the Act as follows:

serious repeat offender: a person is a serious repeat offender in relation to a serious prison sentence if the sentence was imposed on the person for an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of another serious prison sentence.

117.       The purpose of this amendment is to prevent a person who has a serious prison sentence, was released from prison and was then returned to prison because they were given another serious prison sentence from being approved as an Australian citizen under section 17 of the Act for a period of 10 years after serving that second serious prison sentence.  This amendment mirrors paragraph 24(6)(d) of the current Act.

118.       New paragraph 17(4C)(e) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence - during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence.

119.       The purpose of this amendment is to prevent a person who has been released by a court from serving some or all of a sentence of imprisonment on parole or licence from being approved as an Australian citizen under section 17 of the Act at a time when the person could still be ordered to serve some or all of that term of imprisonment.  This would include a situation in which the person breached their parole conditions and was ordered to serve the remainder of their prison sentence.  This amendment mirrors paragraph 24(6)(e) of the current Act.

120.       New paragraph 17(4C)(f) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time if the person:

• has been released by a court from serving the whole or a part of a sentence of imprisonment; and
• has been so released subject to conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of any of those conditions.

121.       The purpose of this amendment is to prevent a person who has been released from prison on conditions relating to their behaviour from being approved as an Australian citizen under section 17 of the Act at a time when action could be taken for a breach of those conditions.  New paragraph 17(4C)(f) differs from current paragraph 24(6)(f) in that current paragraph 24(6)(f) refers to a person who was released from prison because they gave a security for compliance with conditions relating to their behaviour.  It is not necessary for the person to have given a security in order for new paragraph 17(4C)(f) to apply.  This amendment reflects amendments to paragraph 24(6)(f) in item 44 below.

122.       New paragraph 17(4C)(g) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time if, in respect of proceedings for an offence against an Australian law in relation to the person, a court releases the person subject to conditions relating to the person’s behaviour - during any period during which action can be taken against the person under an Australian law because of a breach of any of those conditions.

123.       The purpose of this amendment is to prevent a person who has been released by a court subject to conditions relating to the person’s behaviour in respect of proceedings for an offence against an Australian law from being approved as an Australian citizen under section 17 of the Act while action could be taken against them for breaching any of those conditions. This amendment reflects amendments to paragraph 24(6)(g) in item 44 below.

124.       New paragraph 17(4C)(h) of the Act provides that the Minister must not approve the person becoming an Australian citizen during any period during which the person is 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.

125.       The purpose of this amendment is to prevent a person who has committed an offence against an Australian law and who has been ordered by a court to be confined in a psychiatric institution in connection with that offence from being approved as an Australian citizen under section 17 of the Act while they remain in that psychiatric institution.  This amendment mirrors paragraph 24(6)(h) of the current Act.

126.       New paragraph 17(4C)(i) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when the person is subject to an order of a court for home detention, where the order was made in connection with proceedings for an offence against an Australian law in relation to the person.

127.       There is no equivalent provision to paragraph 17(4C)(i) in the current Act.  This is a new provision which recognises modern sentencing practices.  That is, it is increasingly common for courts to impose orders for home detention against offenders as opposed to sentences of imprisonment.  The amendment reflects the policy position that a person not be approved as an Australian citizen under section 17 of the Act if they have been convicted of an offence against an Australian law and while they are subject to an order for home detention in connection with proceedings for that offence.  This amendment reflects amendments to subsection 24(6) in item 45 below.

128.       New paragraph 17(4C)(j) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when the person is subject to an order of a court requiring the person to participate in:

• a residential drug rehabilitation scheme; or
• a residential program for the mentally ill; or
• any other residential scheme or program;

where the order was made in connection with proceedings for an offence against an Australian law in relation to the person.

129.       New paragraph 17(4C)(j) of the Act reflects the policy position that a person not be approved as an Australian citizen under section 17 of the Act at a time when they have been ordered by a court to participate in a residential scheme or program in connection with the commission of a criminal offence, whether it be a drug rehabilitation program or a residential program for the mentally ill.

130.       The provision also applies to people who have been ordered to participate in “any other residential scheme or program” in connection with the commission of an offence, in recognition of the variety of residential schemes a court could order a person to participate in.

131.       There is no equivalent provision to paragraph 17(4C)(j) in the current Act.  This is a new provision which recognises modern sentencing practices.  That is, it is increasingly common for courts to impose orders on offenders that require them to participate in residential programs instead of imposing sentences of imprisonment.  The amendment reflects the policy position that a person not be approved as an Australian citizen under section 17 of the Act if they have been convicted of an offence against an Australian law and they are subject to a residential scheme or program in connection with proceedings for that offence.  This amendment reflects amendments to subsection 24(6) in item 45 below.

Item 19           Section 19A

132.       This item repeals section 19A of the Act.

133.       Section 19A of the Act is concerned with when a person who has applied to become an Australian citizen under section 16 does not become an Australian citizen under section 19 despite the Minister’s approval.

134.       Section 19A of the Act provides that despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless:

• if the person was born on or after 26 January 1949 - a parent of the person was an Australian citizen at the time of the person’s birth; or
• if the person was born before 26 January 1949 - a parent of the person became an Australian citizen on 26 January 1949.

135.       This is a consequential amendment to item 64 below which inserts a new power allowing the Minister to revoke a person’s Australian citizenship in circumstances where the person is approved as an Australian citizen by descent and the Minister is satisfied that the approval should not have been given.

Item 20           Section 19B

136.       This item inserts a new dot point into the fourth paragraph of the simplified outline of Subdivision AA of Division 2 of Part 2 of the Act in section 19B.

137.       The fourth paragraph of the simplified outline of Subdivision AA of Division 2 of Part 2 of the Act in section 19B provides:

The Minister may be required to refuse your application on grounds relating to:

• non-satisfaction of identity: see subsection 19D(4); or
• national security: see subsections 19D(5) to 19D(7A); or
• cessation of citizenship: see subsection 19D(8).

138.       The new third dot point of the fourth paragraph of the simplified outline of Subdivision AA of Division 2 of Part 2 of the Act in section 19B provides:

• Offences: see subsection 19D(7B); or

139.       This is a consequential amendment to item 22 below which inserts new subsection 19D(7B) in the Act.

Item 21           Paragraph 19C(2)(g)

140.       This item omits “if the applicant is aged 18 or over at the time the person made the application -” from paragraph 19C(2)(g) of the Act.

141.       Section 19C of the Act is concerned with the application and eligibility for citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption.

142.       Paragraph 19C(2)(g) of the Act currently provides that a person (the applicant ) is eligible to become an Australian citizen if:

• the applicant is aged 18 or over at the time the applicant made the application - the Minister is satisfied that the applicant is of good character at the time of the Minister’s decision on the application.

143.       This amendment reflects the policy position that the Minister must be satisfied that an applicant for Australian citizenship under section 19C of the Act must be of good character at the time of the Minister’s decision on the application, regardless of their age at the time the application was made.

144.       The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen under section 19D of the Act.  In practice, the effect of the amendment is that the Minister would now seek criminal history records for 16-17 year-olds.  However, if the Minister becomes aware of an applicant who has character issues and is aged younger than 16, it would be possible to assess that applicant against the character requirement.

Item 22           After subsection 19D(7A)

145.       This item inserts new subsection 19D(7B) in the Act.  New subsection 19D(7B) prevents the Minister from approving a person becoming an Australian citizen under section 19D if the person has committed an offence in certain circumstances.  New subsection 19D(7B) essentially replicates paragraphs 24(6)(a) - 24(6)(h) of the current Act (reflecting amendments to current paragraphs 24(6)(f) and 24(6)(g) in item 44 below) and inserts some additional provisions.

146.       The purpose of this amendment, along with items 18 and 61 is to bring consistency to the citizenship programme by applying the bar on approval for criminal offences to all application streams.

147.       Under new subsection 19D(7B) of the Act the Minister must not approve the person becoming an Australian citizen at a time when any of paragraphs 19D(7B)(a) - 19D(7B)(j) apply to the person.

148.       New paragraph 19D(7B)(a) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person.

149.       The purpose of this amendment is to prevent the Minister from approving a person becoming an Australian citizen under section 19D of the Act at a time when the person is before the court in relation to an alleged commission of an offence, and those proceedings have not yet been finalised.  This amendment mirrors paragraph 24(6)(a) of the current Act.

150.       New paragraph 19D(7B)(b) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when the person is confined to a prison in Australia.

151.       The purpose of this amendment is to prevent the Minister from approving a person becoming an Australian citizen under section 19D of the Act while the person is in prison.  This amendment mirrors current paragraph 24(6)(b) of the Act.

152.       New paragraph 19D(7B)(c) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence.

153.       “Serious prison sentence” is defined in section 3 of the Act to mean a sentence of imprisonment for a period of at least 12 months.

154.       The purpose of this amendment is to prevent the Minister from approving a person becoming an Australian citizen under section 19D of the Act for 2 years after the end of the time the person has been in prison because they have been given a sentence of imprisonment of at least 12 months.  This amendment mirrors paragraph 24(6)(c) of the current Act.

155.       New paragraph 19D(7B)(d) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time if the person is a serious repeat offender in relation to a serious prison sentence - during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence.

156.       “Serious repeat offender” is defined in section 3 of the Act as follows:

serious repeat offender: a person is a serious repeat offender in relation to a serious prison sentence if the sentence was imposed on the person for an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of another serious prison sentence.

157.       The purpose of this amendment is to prevent a person who has a serious prison sentence, was released from prison and was then returned to prison because they were given another serious prison sentence from being approved as an Australian citizen under section 19D of the Act for a period of 10 years after serving that second serious prison sentence.  This amendment mirrors paragraph 24(6)(d) of the current Act.

158.       New paragraph 19D(7B)(e) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence - during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence.

159.       The purpose of this amendment is to prevent a person who has been released by a court from serving some or all of a sentence of imprisonment on parole or licence from being approved as an Australian citizen under section 19D of the Act at a time when the person could still be ordered to serve some or all of that term of imprisonment.  This would include a situation in which the person breached their parole conditions and was ordered to serve the remainder of their prison sentence.  This amendment mirrors paragraph 24(6)(e) of the current Act.

160.       New paragraph 19D(7B)(f) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time if the person:

• has been released by a court from serving the whole or a part of a sentence of imprisonment; and
• has been so released subject to conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of any of those conditions.

161.       The purpose of this amendment is to prevent a person who has been released from prison on conditions relating to their behaviour from being approved as an Australian citizen under section 19D of the Act at a time when action could be taken for a breach of those conditions.  New paragraph 19D(7B)(f) differs from current paragraph 24(6)(f) in that paragraph 24(6)(f) refers to a person who was released from prison because they have given a security.  It is not necessary for the person to have given a security in order for new paragraph 19D(7B)(f) to apply.  This amendment reflects amendments to paragraph 24(6)(f) in item 44 below.

162.       New paragraph 19D(7B)(g) of the Act provides that the Minister must not approve a person becoming an Australian citizen at a time if, in respect of proceedings for an offence against an Australian law in relation to the person, a court releases the person subject to conditions relating to the person’s behaviour - during any period during which action can be taken against the person under an Australian law because of a breach of any of those conditions.

163.       The purpose of this amendment is to prevent a person who has been released by a court subject to conditions relating to the person’s behaviour in respect of proceedings for an offence against an Australian law from being approved as an Australian citizen under section 19D of the Act while action could be taken against them for breaching any of those conditions.  

164.       New paragraph 19D(7B)(h) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time during any period during which the person is 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.

165.       The purpose of this amendment is to prevent a person who has committed an offence against an Australian law and who has been ordered by a court to be confined in a psychiatric institution in connection with that offence from being approved as an Australian citizen under section 19D of the Act while they remain in that psychiatric institution.  This amendment mirrors paragraph 24(6)(h) of the current Act.

166.       New paragraph 19D(7B)(i) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when the person is subject to an order of a court for home detention, where the order was made in connection with proceedings for an offence against an Australian law in relation to the person.

167.       There is no equivalent to current paragraph 19D(7B)(i) in the Act.  This is a new provision which recognises modern sentencing practices.  That is, it is increasingly common for courts to impose orders for home detention against offenders as opposed to sentences of imprisonment.  The amendment reflects the policy position that a person not be approved as an Australian citizen under section 19D of the Act if they have been convicted of an offence against an Australian law and while they are subject to an order for home detention in connection with proceedings for that offence.  This amendment reflects amendments to subsection 24(6) in item 45 below.

168.       New paragraph 19D(7B)(j) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when the person is subject to an order of a court requiring the person to participate in:

• a residential drug rehabilitation scheme; or
• a residential program for the mentally ill; or
• any other residential scheme or program;

where the order was made in connection with proceedings for an offence against an Australian law in relation to the person.

169.       New paragraph 19D(7B)(j) of the Act reflects the policy position that a person not be approved as an Australian citizen under section 19D of the Act at a time when they have been ordered by a court to participate in a residential scheme or program in connection with the commission of a criminal offence, whether it be a drug rehabilitation program or a residential program for the mentally ill.

170.       The provision also applies to people who have been ordered to participate in “any other residential scheme or program” in connection with the commission of an offence, in recognition of the variety of residential schemes a court could order a person to participate in.

171.       There is no equivalent provision to paragraph 19D(7B)(j) in the current Act.  This is a new provision which recognises modern sentencing practices.  That is, it is increasingly common for courts to impose orders on offenders that require them to participate in residential programs instead of imposing sentences of imprisonment.  The amendment reflects the policy position that a person not be approved as an Australian citizen under section 19D of the Act if they have been convicted of an offence against an Australian law and they are subject to a residential scheme or program in connection with proceedings for that offence.  This amendment reflects amendments to subsection 24(6) in item 45 below.

Item 23           Subsection 21(5)

172.       This item omits “satisfied that the person”, from subsection 21(5) of the Act, and substitutes “satisfied that”.

173.       This is a consequential amendment to item 25 below which repeals paragraph 21(5)(b) of the Act and inserts new paragraphs 21(5)(b) and 21(5)(c).

Item 24           Paragraph 21(5)(a)

174.       This item inserts “the person” before “is” in paragraph 21(5)(a) of the Act.

175.       This is a consequential amendment to item 25 below which repeals paragraph 21(5)(b) of the Act and inserts new paragraphs 21(5)(b) and 21(5)(c).

Item 25           Paragraph 21(5)(b)

176.       This item repeals current paragraph 21(5)(b) of the Act and substitutes new paragraphs 21(5)(b) and 21(5)(c).

177.       Subsection 21(5) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:

• is aged under 18 at the time the person made the application; and
• is a permanent resident:

§   at the time the person made the application; and

§   at the time of the Minister’s decision on the application.

178.       Section 3 of the Act relevantly provides that permanent resident has the meaning given by section 5.  Subsection 5(1) relevantly provides that for the purposes of this Act, a person is a permanent resident at a particular time if and only if:

• the person is present in Australia at that time and holds a permanent visa at that time; or
• both the person is not present in Australia at that time and holds a permanent visa at that time, and the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia.

179.       Subsection 21(5) of the Act as currently drafted has the effect of preventing a person aged under 18 who is outside Australia, has never been in Australia and is the holder of a permanent visa (for example, an Adoption (subclass 102) visa) from becoming an Australian citizen without first entering Australia.  This is not consistent with the policy intent.

180.       New subsection 21(5) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that:

• the person is aged under 18 at the time the person made the application; and
• at the time the person made the application and at the time of the Minister’s decision on the application:

§   the person is a permanent resident; or

§   the person holds a permanent visa of a kind prescribed in an instrument under subsection 3(2), the person has not entered Australia as the holder of that visa and a parent of the person is an Australian citizen; and

• the person is of good character at the time of the Minister’s decision on the application.

181.       New subsection 21(5) of the Act provides for the Minister to prescribe a kind of permanent visa which would enable a person to be eligible to become an Australian citizen under that provision if they have never entered Australia as the holder of a permanent visa.  The person will be eligible to be approved as an Australian citizen under that provision if they hold a permanent visa of a kind prescribed in an instrument and the parent of the person is an Australian citizen, regardless of whether or not they have travelled to Australia as the holder of that visa.

182.       New subsection 21(5) of the Act also reflects the policy intention that an applicant must be of good character at the time of the Minister’s decision on the application in order to be eligible to be approved as an Australian citizen under section 24 in accordance with that provision.  The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen.  In practice, the effect of the amendment is that the Minister would now seek criminal history records for 16-17 year-olds.  However, if the Minister becomes aware of an applicant who has character issues and is aged younger than 16, it would be possible to assess that applicant against the character requirement.

Item 26           Paragraph 21(6)(d)

183.       This item omits “if the person is aged 18 or over at the time the person made the application -” from paragraph 21(6)(d) of the Act.

184.       Subsection 21(6) of the Act is concerned with Australian citizenship by conferral for a person born to a former Australian citizen.  Subsection 21(6) of the Act currently provides that a person is eligible to become an Australian citizen if the Minister is satisfied that:

• the person was born outside Australia; and
• a parent of the person was not an Australian citizen at the time of the person’s birth; and
• the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and
• if the person is aged 18 or over at the time the person made the application - the person is of good character at the time of the Minister’s decision on the application.

185.       The purpose of this amendment is to require all persons who make an application to become an Australian citizen by conferral on the basis of subsection 21(6) of the Act to be of good character at the time of the Minister’s decision on the application.  This represents a change from current paragraph 21(6)(d) which only requires persons who are aged 18 years or over at the time the application was made to be of good character at the time of the Minister’s decision on the application.  The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen.  In practice, the effect of the amendment is that the Minister would now seek criminal history records for 16-17 year-olds.  However, if the Minister becomes aware of an applicant who has character issues and is aged younger than 16, it would be possible to assess that applicant against the character requirement.

Item 27           Paragraphs 22(1)(a) and (b)

186.       This item repeals current paragraphs 22(1)(a) and 22(1)(b) of the Act and substitutes new paragraphs 22(1)(a), 22(1)(b) and 22(1)(ba).

187.       Current paragraphs 22(1)(a) and 22(1)(b) of the Act provide that subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if the person was present in Australia for a 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.

188.       New paragraph 22(1)(a) provides that subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if one of the following subparagraphs applies:

• on the first day (the start day ) of the 4-year period ending on the day before the day the person made the application the person was present in Australia (except as an unlawful non-citizen);
• on the start day the person was outside Australia and the person was the holder of a visa that permitted the person to travel to, enter and remain in Australia, and the visa was granted when the person was in Australia;
• on the start day the person was outside Australia and the person was the holder of a visa that permitted the person to travel to, enter and remain in Australia, and the visa was granted when the person was outside Australia, and the person had previously entered Australia as the holder of that visa.

189.       The purpose of this amendment is to clarify exactly when the 4 year period of a person’s residence in Australia commences for the purposes of paragraph 22(1)(a) of the Act. 

190.       For the purposes of new subparagraph 22(1)(a)(i) of the Act, on the day (the start day) 4 years immediately before the day the person made the application for Australian citizenship, the person must have been physically present in Australia as a lawful non-citizen on that day.  This amendment is a response to an interpretation that has been taken regarding current paragraph 22(1)(a) that there is no clear requirement that a person must be in Australia on the exact date 4 years before making their application for Australian citizenship in order to meet the general residence requirement.

191.       This amendment also reflects the policy position that there are specific circumstances where a person will meet the residence requirement even if they were not physically present in Australia on the start day.  For the purposes of new subparagraph 22(1)(a)(ii) of the Act, a person will satisfy the residence requirement if on the start day they were outside Australia and the holder of a visa that permitted the person to travel to, enter and remain in Australia, provided the visa was granted to the person when they were in Australia.

192.       For the purposes of new subparagraph 22(1)(a)(iii) of the Act, a person will satisfy the residence requirement if on the start day they were outside Australia, provided they were the holder of a visa that permitted them to travel to, enter and remain in Australia that was granted outside Australia, and the person had previously entered Australia as the holder of that visa.  This amendment makes it clear that a person cannot commence their relevant period of residence if their visa was granted when they were offshore and the person had not entered Australia on that visa.

193.       New paragraph 22(1)(b) of the Act provides that, in addition to meeting either subparagraph 22(1)(a)(i), 22(1)(a)(ii) or 22(1)(b)(iii), the person must have been present in Australia throughout the period (the relevant period ) beginning on the day after the start day and ending on the day before the day the person made the application.

194.       The purpose of this amendment is to preserve the policy position in the current Act that the person must have been physically present in Australia throughout the period of 4 years immediately before the day the person made the application. 

195.       New paragraph 22(1)(ba) of the Act provides that, in addition to meeting either subparagraph 22(1)(a)(i), 22(1)(a)(ii) or 22(1)(a)(iii) and paragraph 22(1)(b), the person was not present in Australia as an unlawful non-citizen at any time during the relevant period.

196.       New paragraph 22(1)(ba) of the Act preserves the current policy position that a person cannot have been present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day they made their application for Australian citizenship.

Item 28           Paragraph 22(1)(c)

197.       This item omits the word “for”, and substitutes the word “throughout” in paragraph 22(1)(c) of the Act.

198.       Current paragraph 22(1)(c) of the Act provides that subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if 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.

199.       The purpose of this amendment is to put beyond doubt that the 12 month period of the person’s presence in Australia must be continuous.

Item 29           Paragraph 22(1A)(a)

200.       This item omits the words “period of 4 years immediately before the day the person made the application” from paragraph 22(1A)(a) of the Act, and substitutes the words “relevant period”.

201.       This is a consequential amendment to new paragraph 22(1)(b) (inserted by item 27 above) which clarifies that “relevant period” is the period beginning on the day after the start day and ending on the day before the day the person made their application for Australian citizenship.

Item 30           Subsection 22(1A)

202.       This item omits the words “paragraph (1)(a)” from subsection 22(1A) of the Act and substitutes the words “paragraph (1)(b)” in that subsection.

203.       This is a consequential amendment to item 27 above which repeals current paragraphs 22(1)(a) and 22(1)(b) and inserts new paragraphs 22(1)(a), 22(1)(b) and 22(1)(ba) into the Act.

Item 31           Subsection 22(1C)

204.       This item omits the words “paragraph (1)(a) if, at any time during the 4 year period mentioned in that paragraph” from subsection 22(1C) of the Act and substitutes the words “paragraphs (1)(a) and (b) if, at any time during the 4-year period mentioned in subparagraph (1)(a)(i)”.

205.       Subsection 22(1C) of the Act currently provides that subject to subsection 22(5A), the person is taken not to satisfy paragraph 22(1)(a) if, at any time during the 4 year period 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.

206.       This is a consequential amendment to item 27 above which inserts new paragraphs 22(1)(a), 22(1)(b) and 22(1)(ba) in the Act.

Item 32           Subsection 22(2)

207.       This item omits “and (b)” from subsection 22(2) of the Act and substitutes “,(b) and (ba)”.

208.       Subsection 22(2) of the Act provides a partial exemption from the residence requirements in paragraphs 22(1)(a) and 22(1)(b) for a person born in Australia or a former Australian citizen.

209.       Subsection 22(2) of the Act currently provides that paragraphs 22(1)(a) and 22(1)(b) do not apply if the person:

• was born in Australia; or
• was an Australian citizen at any time before the person made the application.

210.       This is a consequential amendment to item 27 above which inserts new paragraphs 22(1)(a), 22(1)(b) and 22(1)(ba) in the Act.

Item 33           After subsection 22(2)

211.       This item inserts new subsections 22(3) and 22(4) after subsection 22(2) in the Act.

212.       New subsection 22(3) of the Act provides that for the purposes of paragraph 22(1)(ba), 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 is satisfied that the circumstances prescribed in an instrument under subsection 22(4) exist in relation to the person.

213.       New subsection 22(4) of the Act provides that the Minster may, by legislative instrument, prescribe circumstances for the purposes of subsection 22(3).

214.       The purpose of these amendments is to provide the Minister with flexibility to prescribe, by way of legislative instrument, a range of circumstances in which the Minister or delegate may treat a period as one in which a person was not present in Australia as an unlawful non-citizen for the purposes of paragraph 22(1)(ba) of the Act.

215.       Current subsection 22(4A) of the Act provides that for the purposes of paragraph 22(1)(b), 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 that the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.  However, in most cases it is not appropriate to apply this ministerial discretion to allow a person to meet the residence requirement where a person has become an unlawful non-citizen as a result of the legally correct application or operation of migration law.

216.       Circumstances that may be prescribed for the purposes of new subsection 22(4) of the Act include, but will not be limited to, situations where a person has unintentionally become an unlawful non-citizen for a brief period.  For example, if a person made a valid application for a visa while still holding a visa (that is, while they were still lawfully present in Australia) but was not granted a bridging visa prior to their substantive visa ceasing, they will have been an unlawful non-citizen for a period of time until a further bridging visa or a further substantive visa was granted.

Item 34           Subsection 22(4A)

217.       This item omits “paragraph (1)(b)” from subsection 22(4A) of the Act and substitutes “paragraph (1)(ba)”.

218.       This is a consequential amendment to item 27 above which inserts new paragraphs 22(1)(a), 22(1)(b) and 22(1)(ba) into the Act.

Item 35           Subsections 22(9) and (10)

219.       This item repeals current subsections 22(9) and 22(10) of the Act and substitutes new subsections 22(9) and 22(10).

220.       Subsection 22(9) of the Act contains the Ministerial discretion for the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen.

221.       Subsection 22(9) of the Act currently provides that if the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

• a person was a spouse or de facto partner of that Australian citizen during that period; and
• the person was not present in Australia during that period; and
• the person was a permanent resident during that period; and
• the Minister is satisfied that the person had a close and continuing association with Australia during that period.

222.       New subsection 22(9) of the Act provides that if the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application:

• for the purposes of paragraph 22(1)(b), the Minister may treat a period as one in which the person was present in Australia; or
• for the purposes of paragraph 22(1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident;

if:

• the person was the spouse or de facto partner of that Australian citizen throughout that period; and
• the person was not present in Australia throughout that period; and
• the person was a permanent resident throughout that period; and
• the Minister is satisfied that the person had a close and continuing association with Australia throughout that period; and
• for the purposes of paragraph 22(1)(b) - the person was present in Australia for a total period of at least 365 days during the relevant period (see paragraph 22(1)(b)).

223.       “Spouse” is defined in section 3 of the Act (inserted by item 6 above).  The new definition of “spouse” provides that spouse has the same meaning as in the Migration Act 1958 .

224.        “De facto partner” is defined in section 3 of the Act (inserted by item 4 above).  The new definition of “de facto partner” provides that de facto partner has the same meaning as in the Migration Act 1958 .

225.       Current subsection 22(9) of the Act does not require the relationship between the applicant for citizenship and the Australian citizen spouse to be genuine and continuing.  Accordingly, a person who is separated, but not divorced from, an Australian citizen may still be eligible to be granted Australian citizenship under current subsection 22(9).

226.       Current subsection 22(9) of the Act also does not reflect the policy position that the discretion should only be considered if the applicant has spent 365 days or more in Australia in the four years immediately before making their application for citizenship.  The policy position is that people should spend at least a minimum amount of time in Australia before applying for citizenship to understand the responsibilities and privileges of Australian citizenship.  However, this policy is not reflected in the language of subsection 22(9) of the Act itself.  As a consequence, applicants continue to seek to be approved as Australian citizens under subsection 22(9) even in circumstances where they have spent a negligible amount of time in Australia immediately before the application was made (in some cases less than a month).

227.       The purpose of new paragraphs 22(9)(a) and 22(9)(b) of the Act and the new definition of “spouse” in section 3 is to clarify that, in order to be eligible for the discretion in subsection 22(9), the person must (among other things) be in a genuine and continuing relationship with their Australian citizen spouse or de facto partner.

228.       The purpose of new paragraph 22(9)(g) of the Act is to clarify that, for the purposes of the requirement in paragraph 22(1)(b), the person must (among other things) have been present in Australia for a total of at least 365 days during the relevant period (being the period beginning on the day after the start day and ending on the day before the day the person made the application).

229.       This item also inserts a note after new subsection 22(9) of the Act.

230.       The note provides that for surviving spouse or de facto partner see subsection (12).

231.       Subsection 22(10) of the Act currently provides that in subsection 22(9), surviving spouse or de facto partner of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.

232.       New subsection 22(10) of the Act provides that paragraph 22(9)(g) does not apply to the person if, throughout the period referred to in paragraph 22(9)(c), the Australian citizen referred to in paragraph 22(9)(c) was working outside Australia as a Commonwealth officer or a State or Territory officer.

233.       The purpose of new subsection 22(10) of the Act is to clarify that the requirement that the person be present in Australia for a total period of at least 365 days during the relevant period will not apply to a person whose Australian citizen spouse or de facto partner was working outside Australia as a Commonwealth officer or State or Territory officer.  However, this discretion does not extend to a person whose Australian citizen spouse or de facto partner was working outside Australia as a locally engaged employee.  The definitions of “Commonwealth officer” and “State or Territory officer” are inserted by item 36 below.

234.       This is also a consequential amendment to item 36 below, which inserts the definition of surviving spouse or de facto partner into new subsection 22(12) of the Act.

Item 36           At the end of section 22

235.       This item inserts new subsection 22(12) at the end of section 22 in the Act.

236.       New subsection 22(12) of the Act provides that in section 22:

Commonwealth officer means:

• a person who is in the employment of the Commonwealth, other than a person who is engaged outside Australia to perform duties outside Australia as an employee; or
• a person who holds or performs the duties of any office or position established by or under a law of the Commonwealth; or
• a member of the Australian Defence Force; or
• the Commissioner of the Australian Federal Police (AFP), a Deputy Commissioner of the AFP, an AFP employee, a special member or a special protective service officer (all within the meaning of the Australian Federal Police Act 1979 ).

 

State or Territory officer means:

• a person who is in the employment of a State or Territory, other than a person who is engaged outside Australia to perform duties outside Australia as an employee; or
• a person who holds or performs the duties of any office or position established by or under a law of a State or Territory; or
• a member of the police force or police service of a State or Territory.

237.       The purpose of this amendment is to provide definitions for the purposes of the discretion in subsection 22(9) of the Act.

238.       The new definitions reflect the policy position that a person who is the spouse or de facto partner of an Australian citizen on an overseas posting (whether they are engaged by the Commonwealth or a State or Territory) does not have to be present in Australia for a total of at least 365 days during the relevant period in order to be eligible for the discretion in subsection 22(9) of the Act.

239.       However, the effect of paragraph (a) of the definition of “Commonwealth officer” and paragraph (a) of the definition of “State or Territory officer” is that the discretion in subsection 22(9) does not extend to a person who is the spouse or de facto partner of an Australian citizen who is a locally engaged employee.

240.       The effect of paragraph (c) of the definition of “Commonwealth officer” in new subsection 22(12) of the Act is that the discretion in subsection 22(9) extends to a person who is the spouse or de facto partner of a member of the Australian Defence Force.

241.       The effect of paragraph (d) of the definition of “Commonwealth officer” in new subsection 22(12) of the Act is that the discretion in subsection 22(9) of the Act extends to a person who is the spouse or de facto partner of the Commissioner of the AFP, a Deputy Commissioner of the AFP, an AFP employee, a special member or a special protective service officer (all within the meaning of the Australian Federal Police Act 1979 ).

242.       The effect of paragraph (b) of the definition of “State or Territory officer” in new subsection 22(12) of the Act is that the discretion in subsection 22(9) extends to a person who is the spouse or de facto partner of a person who holds or performs the duties of any office or position established by or under a law of a State or Territory.

243.       The effect of paragraph (c) of the definition of “State or Territory officer” in new subsection 22(12) of the Act is that the discretion in subsection 22(9) extends to a person who is the spouse or de facto partner of a member of the police force or police service of a State or Territory.

244.       New subsection 22(12) of the Act also inserts the definition of surviving spouse or de facto partner into the Act.  New subsection 22(12) provides that in this section, surviving spouse or de facto partner of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.

245.       The purpose of this definition is to prevent a person who was the spouse or de facto partner of an Australian citizen from benefitting from the discretion in subsection 22(9) of the Act in circumstances where they have re-married or entered into a de facto relationship with another person.

246.       The intention is that the discretion operates to allow a person who is a surviving spouse at the time of application to ask the Minister to treat a period when they were outside Australia with their spouse, while that spouse was alive, as if it was a period when the person was in Australia.  The discretion does not allow time spent outside Australia after the spouse has died to be counted as if it was time in Australia.

Item 37           Paragraph 22A(1)(f)

247.       This item omits “for” and substitutes “throughout” in paragraph 22A(1)(f) of the Act.  Subsection 22A sets out the special residence requirements for persons engaging in activities that are of benefit to Australia.  Subsection 22A(1) essentially provides that subject to this section, for the purposes of section 21 a person (the applicant ) satisfies the special residence requirement if paragraphs 22A(1)(a) - 22A(1)(g) are met.

248.       Paragraph 22A(1)(f) of the Act currently provides that the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application.

249.       The purpose of this amendment is to put beyond doubt that, for the purposes of the special residence requirement in section 22A of the Act, the two year period of the person’s presence in Australia immediately before the day they made the application must have been continuous.  This is to ensure consistency with paragraph 22A(1)(e), which requires the applicant to have been ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application.

Item 38           After subsection 22A(5)

250.       This item inserts new subsection 22A(5A) in the Act.

251.       New subsection 22A(5A) of the Act provides that for the purposes of paragraph 22A(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 is satisfied that the circumstances prescribed in an instrument under subsection 22C(2A) exist in relation to the person.

252.       Paragraph 22A(1)(g) of the Act provides 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.

253.       The purpose of this amendment is to provide the Minister with flexibility to prescribe, by way of legislative instrument under new subsection 22C(2A) of the Act (inserted by item 41 below) a range of circumstances in which the Minister or delegate may treat a period as one in which a person was not present in Australia as an unlawful non-citizen for the purposes of paragraph 22A(1)(g).

254.       Circumstances that may be prescribed by way of legislative instrument for the purposes of new subsection 22A(5A) of the Act include, but will not be limited to, situations where a person has unintentionally become an unlawful non-citizen as a result of the legally correct application or operation of migration law.  For example, if a person made a valid application for a visa while still holding a visa (that is, while they were still lawfully present in Australia) but was not granted a bridging visa prior to their substantive visa ceasing, they will have been an unlawful non-citizen for a period of time until a further bridging visa or a further substantive visa was granted.

Item 39           Paragraph 22B(1)(f)

255.       This item omits the word “for” from paragraph 22B(1)(f) of the Act, and substitutes the word “throughout”.

256.       Section 22B of the Act provides a special residence requirement for persons engaged in particular kinds of work requiring regular travel outside Australia.  Subsection 22B(1) essentially provides that subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if paragraphs 22B(1)(a) - 22B(1)(g) are met.

257.       Paragraph 22B(1)(f) of the Act currently provides that the person was a permanent resident for the period of 12 months immediately before the day the person made the application.

258.       The purpose of this amendment is to put it beyond doubt that, for the purposes of the special residence requirement in section 22B of the Act, the 12 month period of the person’s presence in Australia immediately before the day the person made the application must have been continuous.  This will ensure consistency with paragraph 22B(1)(e), which provides that the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application.

Item 40           After subsection 22B(5)

259.       This item inserts new subsection 22B(5A) in the Act.

260.       New subsection 22B(5A) of the Act provides that for the purposes of 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 is satisfied that the circumstances prescribed in an instrument under subsection 22C(4) exist in relation to the person.

261.       Paragraph 22B(1)(g) of the Act provides that subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if 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.

262.       The purpose of this amendment is to provide the Minister with flexibility to prescribe, by way of legislative instrument under new subsection 22C(4) of the Act (inserted by item 42 below) a range of circumstances in which the Minister or delegate may treat a period as one in which a person was not present in Australia as an unlawful non-citizen for the purposes of paragraph 22B(1)(g).

263.       Circumstances that may be prescribed by way of legislative instrument for the purposes of new subsection 22B(5A) of the Act will include, but will not be limited to, situations where the person has unintentionally become an unlawful non-citizen as a result of the legally correct application or operation of migration law.  For example, if a person made a valid application for a visa while still holding a visa (that is, while they were still lawfully present in Australia) but was not granted a bridging visa prior to their substantive visa ceasing, they will have been an unlawful non-citizen for a period of time until a further bridging visa or a further substantive visa was granted.

Item 41           After subsection 22C(2)

264.       This item inserts new subsection 22C(2A) in the Act.

265.       New subsection 22C(2A) of the Act provides that the Minister may, by legislative instrument, prescribe circumstances for the purposes of subsection 22A(5A).

266.       The purpose of this amendment is to give the Minister the power to prescribe, by legislative instrument, circumstances in which the Minister or delegate may treat a period as one in which the person was not present in Australia as an unlawful non-citizen for the purposes of paragraph 22A(1)(g) of the Act.

Item 42           At the end of section 22C

267.       This item inserts new subsection 22C(4) in the Act.

268.       New subsection 22C(4) of the Act provides that the Minister may, by legislative instrument, prescribe circumstances for the purposes of subsection 22B(5A).

269.       The purpose of this amendment is to give the Minister the power to prescribe, by legislative instrument, circumstances in which the Minister or delegate may treat a period as one in which the person was not present in Australia as an unlawful non-citizen for the purposes of paragraph 22B(1)(g) of the Act.

Item 43           Subsection 24(1) (note)

270.       This item repeals the note to subsection 24(1) of the Act and substitutes a new note.

271.       The current note to subsection 24(1) of the Act provides:

Note:     The Minister may cancel an approval: see section 25.

272.       The new note to subsection 24(1) provides:

Note:     For cancellation of an approval by the Minister, see section 25.

273.       This is a consequential amendment to items 47, 48 and 49 below which set out the circumstances in which the Minister must cancel an approval of a person as an Australian citizen given to a person under section 24, and the circumstances in which the Minister may cancel such an approval.

 

Item 44           Paragraphs 24(6)(f) and (g)

274.       This item repeals paragraphs 24(6)(f) and 24(6)(g) of the Act and substitutes new paragraphs 24(6)(f) and 24(6)(g).

275.       Paragraph 24(6)(f) of the Act currently provides that the Minister must not approve the person becoming an Australian citizen at a time if the person:

• has been released by a court from serving the whole or a part of a sentence of imprisonment; and
• has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security.

276.       New paragraph 24(6)(f) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time if the person:

• has been released by a court from serving the whole or a part of a sentence of imprisonment; and
• has been so released subject to conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of any of those conditions.

277.       The purpose of this amendment is to simplify the Act and to clarify that the Minister must not approve the person becoming an Australian citizen at a time when the person has been released from serving the whole or part of a sentence of imprisonment subject to conditions relating to the person’s behaviour, during any period during which action can be taken against the person for a breach of any of those conditions. New paragraph 24(6)(f) recognises that a court can release a person from serving the whole or part of a sentence of imprisonment in circumstances where the person does not provide a security for compliance with conditions relating to their behaviour.

278.       Paragraph 24(6)(g) of the Act currently provides that the Minister must not approve the person becoming an Australian citizen at a time if, in respect of proceedings for an offence against an Australian law in relation to the person:

• a court does not impose a sentence of imprisonment on the person; and
• the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security.

279.       New paragraph 24(6)(g) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time if, in respect of proceedings for an offence against an Australian law in relation to the person, a court releases the person subject to conditions relating to the person’s behaviour - during any period during which action can be taken against the person under an Australian law because of a breach of any of those conditions.

280.       The purpose of this amendment is to prevent a person who has been released by a court subject to conditions relating to the person’s behaviour in respect of proceedings for an offence against an Australian law from being approved as an Australian citizen under section 24 of the Act while action could be taken against them for breaching any of those conditions.    

Item 45           At the end of subsection 24(6)

281.       This item inserts new paragraphs 24(6)(i) and 24(6)(j) in the Act.

282.       Current subsection 24(6) of the Act prevents the Minister from approving a person becoming an Australian citizen at a time when any of paragraphs 24(6)(a) - 24(6)(h) applies to the person.

283.       New paragraph 24(6)(i) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when the person is subject to an order of a court for home detention, where the order was made in connection with proceedings for an offence against an Australian law in relation to the person.

284.       New paragraph 24(6)(i) of the Act recognises modern sentencing practices. That is, it is increasingly common for courts to impose orders for home detention against offenders as opposed to sentences of imprisonment. The amendment reflects the policy position that a person not be approved as an Australian citizen under section 24 if they have been charged with an offence against an Australian law and while they are subject to an order for home detention in connection with proceedings for that offence.

285.       New paragraph 24(6)(j) of the Act provides that the Minister must not approve the person becoming an Australian citizen at a time when the person is subject to an order of a court requiring the person to participate in:

• a residential drug rehabilitation scheme; or
• a residential program for the mentally ill; or
• any other residential scheme or program;

where the order was made in connection with proceedings for an offence against an Australian law in relation to the person.

286.       New paragraph 24(6)(j) of the Act reflects the policy position that a person not be approved as an Australian citizen under section 24 of the Act at a time when they have been ordered by a court to participate in a residential scheme or program in connection with the commission of a criminal offence, whether it be a drug rehabilitation scheme or a residential program for the mentally ill.

287.       The provision also applies to people who have been ordered to participate in “any other residential scheme or program” in connection with the commission of an offence, in recognition of the variety of residential schemes a court could order a person to participate in.

288.       New paragraph 24(6)(j) of the Act recognises modern sentencing practices.  That is, it is increasingly common for courts to impose orders on offenders that require them to participate in residential programs instead of imposing sentences of imprisonment.  The amendment reflects the policy position that a person not be approved as an Australian citizen under section 24 of the Act if they have been charged with an offence against an Australian law and they are subject to a residential scheme or program in connection with proceedings for that offence.

Item 46           Section 25 (heading)

289.       This item repeals the heading to section 25 of the Act and substitutes a new heading.

290.       The current heading to section 25 of the Act provides:

25        Minister may cancel approval

291.       The new heading to section 25 of the Act provides:

25        Cancellation of approval by Minister

292.       This is a consequential amendment to items 47, 48 and 49 below which set out the circumstances in which the Minister must cancel an approval of a person as an Australian citizen given to a person under section 24, and the circumstances in which the Minister may cancel such an approval.

Item 47           Before subsection 25(1)

293.       This item inserts new subsection 25(1A) in the Act before subsection 25(1).

294.       New subsection 25(1A) of the Act provides that the Minister must, by writing, cancel an approval given to a person under section 24 if:

• the person has not become an Australian citizen under section 28; and
• the approval was given on the basis of subsection 21(2), 21(4) or 21(5) applying to the person; and
• assuming that the Minister were considering the person’s application to become an Australian citizen at the time of the proposed cancellation, the Minister is satisfied that the person would not be given an approval under section 24 because of subsection 24(3), 24(4) or 24(4A).

295.       This amendment requires the Minister to cancel a person’s approval to become an Australian citizen if the person was approved as an Australian citizen on the basis of meeting subsection 21(2), 21(4) or 21(5) of the Act, and assuming the Minister were considering the person’s application to become an Australian citizen at the time of the proposed cancellation, the Minister is satisfied that the person would not be given approval under section 24 on the basis that the Minister would not have been satisfied of the person’s identity, or would not have approved the person as an Australian citizen on national security grounds.

296.       The purpose of this amendment is to deal with situations where the Minister was satisfied that, at the time of the approval, the person had no identity or national security concerns but before the person makes the pledge of commitment to become an Australian citizen, concerns emerge which mean that the Minister is no longer satisfied as to the identity of the person, or the Minister is concerned that the person poses a risk to national security.

297.       The mandatory nature of this new power reflects the mandatory bar on approval in subsection 24(3), 24(4) or 24(4A), such that a person whose identity is in doubt, or who is of national security concern, is not entitled to become an Australian citizen.

Item 48           Paragraph 25(1)(b)

298.       This item repeals current paragraph 25(1)(b) of the Act and substitutes new paragraph 25(1)(b).

299.       Subsection 25(1) of the Act currently provides that the Minister may, by writing, cancel an approval given to a person under section 24 if:

• the person has not become an Australian citizen under section 28; and
• either of the following 2 situations apply.

300.       New subsection 25(1) of the Act provides that the Minister may, by writing, cancel an approval given to a person under section 24 if:

·      the person has not become an Australian citizen under section 28; and

·      subsection (2) or (3) applies.

301.       The purpose of this amendment is to clarify that the Minister has the discretion to cancel an approval given to a person to become an Australian citizen under section 24 of the Act if subsections 25(2) or 25(3) apply to the person. 

302.       This amendment is also a consequential amendment to the amendments made by items 49 and 51 below, which omit “the first situation” and “the second situation” from subsections 25(2) and 25(3) of the Act respectively, and substitute the words “this subsection”.

Item 49           Subsection 25(2)

303.       This item repeals current subsection 25(2) of the Act and substitutes new subsection 25(2).

304.       Subsection 25(2) of the Act currently provides that the first situation applies if:

•  the person is covered by subsection 21(2), 21(3) or 21(4); and
• the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

§   not a permanent resident; or

§   not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

§   not of good character.

305.       New subsection 25(2) of the Act provides that this subsection applies if:

• the approval was given on the basis of subsection 21(2), 21(4) or 21(5) applying to the person; and
• assuming that the Minister were considering the person’s application to become an Australian citizen at the time of the proposed cancellation, the Minister is satisfied that the person would not be given an approval under section 24 (other than because of subsection 24(3), 24(4), 24(4A) or 24(5)).

306.       Under new subsection 25(2) of the Act the Minister has the discretion to cancel the approval of a person as an Australian citizen if the person was approved as becoming an Australian citizen on the basis of meeting subsection 21(2), 21(4) or 21(5), and assuming the Minister were considering the person’s application to become an Australian citizen at the time of the proposed cancellation, the Minister is satisfied that the person would not be given an approval under section 24 (other than because of reasons concerning the person’s identity or concerns that they pose a threat to national security).

307.       The purpose of this amendment is to deal with situations where the Minister believed, at the time the approval was given, that the person met all the relevant requirements for being approved as an Australian citizen in section 21 of the Act, but before the person makes the pledge of commitment to become an Australian citizen, the Minister is no longer satisfied that those requirements have been met.

308.       This amendment includes the current grounds for the Minister to cancel approval in current subsection 25(2) of the Act (concerning the person’s status as a permanent resident, the likelihood of the person residing, or continuing to reside, in Australia or to maintain a close and continuing association with Australia and the requirement to be of good character). 

309.       The new subsection 25(2) of the Act also gives the Minister the discretion to cancel a person’s approval if other eligibility requirements are not met, for example if the person had been approved as meeting a residence requirement but in fact they did not meet any of the residence requirements.  In addition, the Minister could cancel approval if he or she had not been aware that one of the grounds for the bar on approval concerning criminal offences in subsection 24(6) applied, such as the person was subject to pending proceedings for an offence against Australian law or was subject to a good behaviour bond.

310.       This amendment further clarifies that, unlike current subsection 25(2) of the Act, new subsection 25(2) does not apply to a person who is covered by subsection 21(3) (that is, a person with a permanent or enduring physical or mental incapacity) because they are not required to make the pledge of commitment and become a citizen immediately upon approval.  Therefore, there is no time period in which cancellation of approval could be considered. 

Item 50           Subsection 25(3) (heading)

311.       This item repeals the heading to subsection 25(3) of the Act.

312.       The current heading to subsection 25(3) of the Act reads:

Failure to make pledge of commitment

313.       This is a consequential amendment to the amendments made by item 49 above and item 51 below, which omit “the first situation” and “the second situation” from subsections 25(2) and 25(3) of the Act respectively, and substitute the words “this subsection”.

Item 51           Subsection 25(3)

314.       This item omits “The second situation” from subsection 25(3) of the Act, and substitutes “This subsection”.

315.       Subsection 25(3) of the Act currently provides that the second situation applies if:

• the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and
• the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

316.       This is a consequential amendment to item 48 above which repeals current paragraph 25(1)(b) of the Act and substitutes new paragraph 25(1)(b). 

Item 52           Subsection 26(3)

317.       This item omits “the Minister is satisfied that” from subsection 26(3) of the Act.

318.       This is a consequential amendment to item 55 below which inserts new paragraph 26(3)(c) in the Act.

Item 53           Paragraph 26(3)(a)

319.       This item inserts “the Minister is satisfied that” before “a visa” in paragraph 26(3)(a) of the Act.

320.       This is a consequential amendment to item 55 below which inserts new paragraph 26(3)(c) in the Act.

 

Item 54           Paragraph 26(3)(b)

321.       This item inserts “the Minister is satisfied that” before “the person” in paragraph 26(3)(b) in the Act.

322.       This is a consequential amendment to item 55 below which inserts new paragraph 26(3)(c).

Item 55           At the end of subsection 26(3)

323.       This item adds new paragraph (c) at the end of subsection 26(3) in the Act.

324.       Subsection 26(3) of the Act currently provides that if the person is required to make the pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:

• a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or
• the person has been or may be charged with an offence under an Australian law.

325.       New paragraph 26(3)(c) of the Act provides that if the person is required to make the pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:

• the Minister is considering cancelling the approval given to the person under section 24 and the Minister is considering doing so:

§   under subsection 25(1A); or

§   under subsection 25(1) because of the application of subsection 25(2).

326.       The purpose of this amendment is to enable the Minister to defer a person making the pledge of commitment to become an Australian citizen if it appears that the approval of citizenship for the person may be cancelled under new subsection 25(1A) (inserted by item 47 above) or under subsection 25(1) because of the application of new subsection 25(2) (inserted by item 49 above).

327.       The amendment reflects the policy intention that the Minister may defer the person making the pledge of commitment if the Minister is considering cancelling their approval as an Australian citizen under section 25 of the Act, as section 28 of the Act provides that a person becomes an Australian citizen under this Subdivision (that is, Subdivision B of Division 2 of Part 2 of the Act) on the day the person makes the pledge.  Therefore, if the Minister requires additional time to investigate matters to determine whether to cancel the approval of a person as an Australian citizen under section 25 of the Act, it is intended that the Minister can defer the person making the pledge of commitment to prevent a person becoming an Australian citizen during this period.

 

Item 56           Subsection 26(4)

328.       This item omits “12 months” from subsection 26(4) of the Act and substitutes “2 years”.

329.       Section 26 of the Act deals with making the pledge of commitment to become an Australian citizen.  Subsection 26(1) essentially provides that a person must make a pledge of commitment to become an Australian citizen, subject to certain specified restrictions.

330.       Subsection 26(3) of the Act deals with delaying the making of the pledge of commitment to become an Australian citizen in certain circumstances.  Subsection 26(3) currently provides that if the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:

·      a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or

·      the person has been or may be charged with an offence under an Australian law.

331.       Subsection 24(4) of the Act currently provides that the Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.

332.       The purpose of this amendment is to lengthen the period of time for which the Minister may determine that a person is to be delayed in making their pledge of commitment to become an Australian citizen from a maximum period of 12 months to a maximum period of 2 years (or to periods that in total are no more than 2 years).  This amendment recognises the fact that investigation into some matters that may lead to the cancellation of approval, including criminal offences such as fraud, can take longer than 12 months, and that a period of 12 months’ delay in making the pledge of commitment is not sufficient to allow the Minister to determine whether or not approval should be cancelled.

Item 57           Section 28A

333.       This item omits the second dot point of the fourth paragraph of the simplified outline to Subdivision C of Division 2 of Part 2 of the Act, and re-inserts the second dot point and inserts new third and fourth dot points in section 28A.

334.       The fourth paragraph of the outline to Subdivision C in section 28A of the Act currently provides:

The Minister may be required to refuse your application on grounds relating to:

• non-satisfaction of identity: see subsection 30(3); or
• national security: see subsections 30(4) to 30(7).

335.       The new fourth paragraph in section 28A of the Act provides:

The Minister may be required to refuse your application on grounds relating to:

• non-satisfaction of identity: see subsection 30(3); or
• national security: see subsections 30(4) to 30(7); or
• offences: see subsection 30(8); or
• the timing of cessation of citizenship: see subsection 30(9).

336.       This is a consequential amendment to item 61 below which inserts subsections 30(8) (offences) and subsection 30(9) (Cessation of citizenship) in the Act.

Item 58           Paragraph 29(2)(b)

337.       This item omits “if the person is aged 18 or over at the time the person made the application--” from paragraph 29(2)(b) of the Act.

338.       Subsection 29(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen again.

339.       Subsection 29(2) of the Act currently provides that a person is eligible to become an Australian citizen again under this Subdivision if:

• the person ceased to be an Australian citizen under:

§   section 33 (about renunciation) in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

§   section 36 (about children); and

• if the person is aged 18 or over at the time the person made the application - the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

340.       The purpose of this amendment is to require all persons who make an application to resume their Australian citizenship under section 29 of the Act to be of good character at the time of the Minister’s decision on the application.  This represents a change from current paragraph 29(2)(b) which only requires persons who are aged 18 years or over at the time the application was made to be of good character at the time of the Minister’s decision on the application.  The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen again.  In practice, the effect of the amendment is that the Minister would now seek criminal history records for 16-17 year-olds.  However, if the Minister becomes aware of an applicant who has character issues and is aged younger than 16, it would be possible to assess that applicant against the character requirement.

 

Item 59           Subsection 29(2) (note 2)

341.       This item omits “section 34, 34A or 35” from note 2 to subsection 29(2) of the Act, and substitutes “section 33A, 34, 34AA, 34A or 35”.

342.       Note 2 to subsection 29(2) of the Act currently provides:

Note 2:                        A person who ceases to be an Australian citizen under section 34 or 35 may apply to become an Australian citizen again under Subdivision A, AA or B.

343.       This is a consequential amendment to item 64 below which inserts new section 33A in the Act, and to item 66 below which inserts new section 34AA in the Act.

Item 60           Paragraph 29(3)(b)

344.       This item omits “if the person is aged 18 or over at the time the person made the application” from paragraph 29(3)(b) of the Act.

345.       Subsection 29(3) of the Act is concerned with people who ceased to be Australian citizens under the old Act.  Subsection 29(3) currently provides that a person is eligible to become an Australian citizen again under this Subdivision if:

• the person ceased to be an Australian citizen under:

§   section 17 (about dual citizenship) of the old Act; or

§   section 18 (about renunciation) of the old Act in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

§   section 20 (about residence outside Australia) of the old Act; or

§   section 23 (about children) of the old Act; and

• if the person is aged 18 or over at the time the person made the application - the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

346.       The purpose of this amendment is to require all persons who make an application to resume their Australian citizenship under section 29 of the Act to be of good character at the time of the Minister’s decision on the application. This represents a change from current paragraph 29(3)(b) which only requires persons who are aged 18 years or over at the time the application was made to be of good character at the time of the Minister’s decision on the application.  The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen again.  In practice, the effect of the amendment is that the Minister would now seek criminal history records for 16-17 year-olds.  However, if the Department becomes aware of an applicant who has character issues and is aged younger than 16, it would be possible to assess that applicant against the character requirement.

Item 61           At the end of section 30

347.       This item adds new subsection 30(8) at the end of section 30 of the Act.

348.       Section 30 of the Act is concerned with the Minister’s decision on an application to become an Australian citizen again under section 29 (resumption of citizenship).  Subsection 30(1) provides that if a person makes an application under section 29, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen again.

349.       Subsection 30(1A) of the Act provides that the Minister must not approve the person becoming an Australian citizen again unless the person is eligible to become an Australian citizen again under subsections 29(2) or 29(3).

350.       Subsection 30(2) of the Act provides that the Minister may refuse to approve the person becoming an Australian citizen again despite the person being eligible to become an Australian citizen again under subsections 29(2) or 29(3)

351.       Subsections 30(3), 30(4) and 30(5) of the Act provide for the circumstances in which the Minister must not approve the person becoming an Australian citizen again.

352.       The purpose of this amendment, along with items 18 and 22, is to bring consistency to the citizenship programme by applying the bar on approval for criminal offences to all application streams.  Specifically, this amendment will ensure that the Minister cannot approve a person becoming an Australian citizen again at a time when any of the circumstances mentioned in paragraphs 30(8)(a)-30(8)(j) (concerning offences) apply in relation to the person.  This amendment recognises that a person who makes an application to become an Australian citizen again under section 29 of the Act could have committed certain offences or be under an obligation to a court and that the Minister must not approve the person becoming an Australian citizen again while those issues remain outstanding.

353.       New paragraph 30(8)(a) of the Act provides that the Minister must not approve the person becoming an Australian citizen again at a time when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person.

354.       The purpose of this amendment is to prevent the Minister from approving a person becoming an Australian citizen again under section 30 at a time when the person is before the court in relation to an alleged commission of an offence, and those proceedings have not yet been finalised.  This amendment mirrors current paragraph 24(6)(a) of the Act.

355.       New paragraph 30(8)(b) of the Act provides that the Minister must not approve the person becoming an Australian citizen again at a time when the person is confined to a prison in Australia.

356.       The purpose of this amendment is to prevent the Minister from approving a person becoming an Australian citizen again under section 30 of the Act while the person is in prison.  This amendment mirrors current paragraph 24(6)(b) of the Act.

357.       New paragraph 30(8)(c) of the Act provides that the Minister must not approve the person becoming an Australian citizen again at a time during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence.

358.       “Serious prison sentence” is defined in section 3 of the Act to mean a sentence of imprisonment for a period of at least 12 months.

359.       The purpose of this amendment is to prevent the Minister from approving a person becoming an Australian citizen again under section 30 of the Act for 2 years after the end of the time the person has been in prison because they have been given a sentence of imprisonment of at least 12 months.  This amendment mirrors current paragraph 24(6)(c) of the Act.

360.       New paragraph 30(8)(d) of the Act provides that the Minister must not approve the person becoming an Australian citizen again if the person is a serious repeat offender in relation to a serious prison sentence - during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence.

361.       “Serious repeat offender” is defined in section 3 of the Act as follows:

serious repeat offender : a person is a serious repeat offender in relation to a serious prison sentence if the sentence was imposed on the person for an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of another serious prison sentence.

362.       The purpose of this amendment is to prevent a person who has a serious prison sentence, was released from prison and was then returned to prison because they were given another serious prison sentence from being approved as an Australian citizen again under section 30 of the Act for a period of 10 years after serving that second serious prison sentence.  This amendment mirrors current paragraph 24(6)(d) of the Act.

363.       New paragraph 30(8)(e) of the Act provides that the Minister must not approve the person becoming an Australian citizen again if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence - during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence.

364.       The purpose of this amendment is to prevent a person who has been released by a court from serving some or all of a sentence of imprisonment on parole or licence from being approved as an Australian citizen again under section 30 of the Act at a time when the person could still be ordered to serve some or all of that term of imprisonment.  This would include a situation in which the person breached their parole conditions and was ordered to serve the remainder of their prison sentence.  This amendment mirrors current paragraph 24(6)(e) of the Act.

365.       New paragraph 30(8)(f) of the Act provides that the Minister must not approve the person becoming an Australian citizen again if the person:

• has been released by a court from serving the whole or a part of a sentence of imprisonment; and
• has been so released subject to conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of any of those conditions.

366.       The purpose of this amendment is to prevent a person who has been released from prison on conditions relating to their behaviour from being approved as an Australian citizen again under section 30 of the Act at a time when action could be taken for a breach of those conditions.  New paragraph 30(8)(f) differs from current paragraph 24(6)(f) in that current paragraph 24(6)(f) refers to a person who was released from prison because they gave a security for compliance with conditions relating to their behaviour.  It is not necessary for the person to have given a security in order for new paragraph 30(8)(f) to apply.  This amendment reflects amendments to paragraph 24(6)(f) in item 44 above.

367.       New paragraph 30(8)(g) of the Act provides that the Minister must not approve the person becoming an Australian citizen again if, in respect of proceedings for an offence against an Australian law in relation to the person, a court releases the person subject to conditions relating to the person’s behaviour - during any period during which action can be taken against the person under an Australian law because of a breach of any of those conditions.

368.       The purpose of this amendment is to prevent a person who has been released by a court subject to conditions relating to the person’s behaviour in respect of proceedings for an offence against an Australian law from being approved as an Australian citizen again under section 30 of the Act while action could be taken against them for breaching any of those conditions. This amendment reflects amendments to paragraph 24(6)(g) in item 44 above.

369.       New paragraph 30(8)(h) of the Act provides that the Minister must not approve the person becoming an Australian citizen again during any period during which the person is 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.

370.       The purpose of this amendment is to prevent a person who has committed an offence against an Australian law and who has been ordered by a court to be confined in a psychiatric institution in connection with that offence from being approved as an Australian citizen again under section 30 of the Act while they remain in that psychiatric institution.  This amendment mirrors current paragraph 24(6)(h) of the Act.

371.       New paragraph 30(8)(i) of the Act provides that the Minister must not approve the person becoming an Australian citizen again at a time when the person is subject to an order of a court for home detention, where the order was made in connection with proceedings for an offence against an Australian law in relation to the person.

372.       There is no equivalent provision to paragraph 30(8)(i) in the current Act.  This is a new provision which recognises modern sentencing practices.  That is, it is increasingly common for courts to impose orders for home detention against offenders as opposed to sentences of imprisonment.  The amendment reflects the policy position that a person not be approved as an Australian citizen again under section 30 of the Act if they have been convicted of an offence against an Australian law and while they are subject to an order for home detention in connection with proceedings for that offence.  This amendment reflects amendments to subsection 24(6) in item 45 above.

373.       New paragraph 30(8)(j) of the Act provides that the Minister must not approve the person becoming an Australian citizen again at a time when the person is subject to an order of a court requiring the person to participate in:

• a residential drug rehabilitation scheme; or
• a residential program for the mentally ill; or
• any other residential scheme or program;

where the order was made in connection with proceedings for an offence against an Australian law in relation to the person.

374.       New paragraph 30(8)(j) of the Act reflects the policy position that a person should not be approved as an Australian citizen again under section 30 of the Act at a time when they have been ordered by a court to participate in a residential scheme or program in connection with the commission of a criminal offence, whether it be a drug rehabilitation program or a residential program for the mentally ill.

375.       The provision also applies to people who have been ordered to participate in “any other residential scheme or program” in connection with the commission of an offence, in recognition of the variety of residential schemes a court could order a person to participate in.

376.       There is no equivalent provision to paragraph 30(8)(j) in the current Act.  This is a new provision which recognises modern sentencing practices.  That is, it is increasingly common for courts to impose orders on offenders that require them to participate in residential programs instead of imposing sentences of imprisonment.  The amendment reflects the policy position that a person not be approved as an Australian citizen again under section 30 of the Act if they have been convicted of an offence against an Australian law and they are subject to a residential scheme or program in connection with proceedings for that offence.  This amendment reflects amendments to subsection 24(6) in item 45 above.

Cessation of citizenship

377.       This item also adds new subsection 30(9) to the Act.

378.       New subsection 30(9) of the Act provides that the Minister must not approve the person becoming an Australian citizen again during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

379.       Subsections 17(5) (citizenship by descent), 19D(8) (citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption) and 24(7) (Citizenship by conferral) of the Act provide that if an applicant 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.

380.       There is currently no equivalent provision for those applicants who seek to resume Australian citizenship under section 29 of the Act.

381.       The purpose of this amendment is to ensure that, regardless of the provision of the Act under which a person applies to become an Australian citizen again, the Minister cannot approve the person resuming their citizenship for a 12 month period from the day on which the person ceased, or last ceased, to be an Australian citizen.

Item 62           Section 32A

382.       This item omits “5 ways” from the simplified outline to Division 3 of Part 2 of the Act in section 32A, and substitutes “4 ways”.

383.       This is a consequential amendment to item 63 below.

Item 63           Section 32A

384.       This item omits the second and the third dot points of the simplified outline to Division 3 of Part 2 of the Act in section 32A, and substitutes another dot point.

385.       The second and third dot points of the simplified outline to Division 3 of Part 2 of the Act in section 32A currently provide:

• if you did not automatically become an Australian citizen, the Minister can revoke your citizenship in circumstances involving offences or fraud: see section 34; or
• if you did not automatically become an Australian citizen and the Minister exercised the power under subsection 22A(1A) or 22B(1A), the Minister can revoke your citizenship in circumstances involving failure to comply with special residence requirements: see section 34A; or

386.       The new second dot point of the simplified outline to Division 3 of Part 2 of the Act in section 32A provides:

• if you did not automatically become an Australian citizen, the Minister can revoke your citizenship in certain circumstances (for example, where there has been fraud or misrepresentation): see sections 33A to 34A; or

387.       This is a consequential amendment to items 64 and 66 below which insert new sections 33A and 34AA in the Act.

Item 64           After section 33

388.       This item inserts new section 33A into the Act.

389.       New subsection 33A(1) of the Act provides that the Minister may, by writing, revoke a person’s Australian citizenship if:

• the person is an Australian citizen under Subdivision A of Division 2 because of an approval under section 17 (concerning citizenship by descent); and
• the Minister is satisfied that the approval should not have been given.

390.       New subsection 33A(2) of the Act provides that however, the Minister must not decide under subsection (1) to revoke a person’s Australian citizenship if the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.

391.       New subsection 33A(3) of the Act provides that if the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.  The note to new subsection 33A(3) provides that a child of the person may also cease to be an Australian citizen: see section 36.

392.       The purpose of this amendment is to allow the circumstances of a particular case to be taken into account in deciding whether a person’s Australian citizenship should be revoked in circumstances where the person did not meet the registration requirements for being approved as an Australian citizen by descent.

393.       Subsection 16(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen (under the citizenship by descent stream).

394.       Subsection 16(2) of the Act currently provides that a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

·      a parent of the person was an Australian citizen at the time of the birth; and

• if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent) at the time of the birth:

§   the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

§   the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

• if the person is or has ever been a national or a citizen of any country, or if article 1(2)((iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application - the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

395.       Items 17 and 18 above amend the requirements for citizenship by descent by applying the good character requirement to those aged under 18 and including a bar on approval related to criminal offences.  

396.       Section 18 of the Act provides that if the Minister approves the person becoming an Australian citizen, the Minister must register the person in the manner prescribed by the Regulations.

397.       Section 19 of the Act provides that a person becomes an Australian citizen under this Subdivision on the day on which the Minister approves the person becoming an Australian citizen.

398.       Section 19A of the Act (which is repealed by item 19 above) currently provides that despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless:

• if the person was born on or after 26 January 1949 - a parent of the person was an Australian citizen at the time of the person’s birth; or
• if the person was born before 26 January 1949 - a parent of the person became an Australian citizen on 26 January 1949.

399.       Section 19A of the Act does not apply to cases where a person was approved as an Australian citizen by descent but their Australian citizen parent did not satisfy the requirement in subparagraph 16(2)(b)(i) of the Act that the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application.  The person remains an Australian citizen even though they did not satisfy all the requirements for being approved as an Australian citizen by descent.

400.       Further, there have been a number of cases where a person was registered as an Australian citizen by descent and has been found not to have been eligible to be approved as an Australian citizen by descent (and consequently, to have never been a citizen).  The fact that section 19A of the Act is an operation of law provision means that the Minister has no discretion to allow these people to retain their Australian citizenship.  Once it is determined that a person was never entitled to be registered as an Australian citizen by descent, then a finding of fact is made that the person is not and never was a citizen, regardless of matters such as the age of the person, whether the person was an innocent party to the incorrect registration and the extent to which the person has integrated into the Australian community.

401.       New section 33A of the Act gives the Minister the discretion to revoke the Australian citizenship of a person who was registered as an Australian citizen by descent in circumstances where the Minister is satisfied that the person should not have been approved as an Australian citizen by descent because the person did not meet the requirements in section 16 of the Act.  That is, the Minister will have the discretion to revoke a person’s Australian citizenship under new section 33A where he or she is satisfied that the person should not have been approved as an Australian citizen by descent because:

• in the case of a person born outside Australia on or after 26 January 1949 - the requirement in paragraph 16(2)(a) of the Act was not met.  That is, a parent of the person was not, in fact, an Australian citizen at the time of the person’s birth;
• in the case of a person born outside Australia on or after 26 January 1949 - the requirement in paragraph 16(2)(b) of the Act was not met.  That is, at the time of the person’s birth the parent of the person was not, in fact, present in Australia as a lawful non-citizen for a total period of at least 2 years at any time before the person made the application, or the person was not stateless at the time the application was made;
• in the case of a person born outside Australia or New Guinea before 26 January 1949 - the requirement in paragraph 16(3)(a) of the Act was not met.  That is, a parent of the person did not, in fact, become an Australian citizen on 26 January 1949;
• in the case of a person born outside Australia or New Guinea before 26 January 1949 - the requirement in paragraph 16(3)(b) of the Act was not met.  That is, the parent of the person was not born in Australia or New Guinea or was not naturalised in Australia before the person’s birth;
• in the case of a person who was assessed as being of good character at the time they were approved for registration as a citizen by descent - the requirement in paragraph 16(2)(c) of the Act was not met.  That is, the Minister becomes satisfied that the person in fact was not of good character at the time they were registered as a citizen by descent.  Matters which go to the applicant’s character which occur after the decision to register them would not bring the person within the scope of this provision.  The provision is similar to paragraph 25(2)(b) which allows approval of citizenship by conferral to be cancelled if the Minister is satisfied that the person is not of good character before they take the pledge.  As a citizen by descent acquires citizenship immediately upon registration, there is no time period whereby the Minister can consider whether to cancel this approval;
• approval of their application for citizenship by descent should have been barred by the new offences provision in subsection 17(4C) of the Act (inserted by item 18 above).  That is, the Minister was not aware that one of the relevant conditions applied at the time of granting approval, for example the person was subject to pending proceedings for an offence against an Australian law or was subject to a good behaviour bond.  This is equivalent to the power to cancel approval of citizenship by conferral in paragraph 25(2)(b), as amended by item 49 above.

402.       Further, the repeal of section 19A of the Act by item 19 above will mean that a person who did not, in fact, meet the requirements for being approved as an Australian citizen by descent in section 16 will remain an Australian citizen unless and until the Minister makes a decision to revoke the person’s Australian citizenship under new section 33A.

Item 65           Section 34 (heading)

403.       This item repeals the current heading to section 34 of the Act and substitutes a new heading.

404.       The current heading to section 34 of the Act provides:

34        Revocation by Minister - offences or fraud

405.       The new heading to section 34 of the Act provides:

34        Revocation by Minister - convictions for fraud or misrepresentation etc.

406.       This is a consequential amendment to item 66 below which inserts new section 34AA into the Act.

Item 66           After section 34

407.       This item inserts new section 34AA in the Act.

408.       New subsection 34AA(1) of the Act provides that the Minister may, by writing, revoke a person’s Australian citizenship if:

• the person is an Australian citizen under Subdivisions A, AA or B of Division 2 (including because of the operation of section 32); and
• the Minister is satisfied that the person obtained the Minister’s approval to become an Australian citizen as a result of fraud, or misrepresentation, connected with:

§   the Minister approving the person becoming an Australian citizen; or

§   the person’s entry into Australia before the Minister gave the approval; or

§   the grant to the person, before the Minister gave the approval, of a visa or of a permission to enter and remain in Australia; and

• the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

409.       The purpose of this amendment is to provide the Minister with the discretion to revoke a person’s Australian citizenship in circumstances where the Minister is satisfied that the person became an Australian citizen as a result of fraud or misrepresentation associated with the person’s entry to Australia, the grant of a visa to the person (or other permission to enter and remain in Australia) or the person being approved as an Australian citizen. 

410.       Unlike section 34 of the Act, it is not necessary for the person to have been convicted of an offence against a provision of the Act or the Criminal Code (or any other provision in any other Act) in order for the Minister to be able to revoke their Australian citizenship under new section 34AA.  However, as is the case with section 34, the Minister must be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen in order to be able to revoke the person’s Australian citizenship under new section 34AA.

411.       New subsection 34AA(2) of the Act provides that the fraud or misrepresentation:

·      may have been committed by any person; and

·      need not have constituted an offence, or part of an offence, by any person.

412.       The purpose of this amendment is to clarify that a person may potentially have their Australian citizenship revoked under new section 34AA regardless of whether the fraud or misrepresentation was perpetrated by the Australian citizen himself or herself, or by a third party (for example, an agent of the Australian citizen).  As the power to revoke a person’s Australian citizenship under new section 34AA is discretionary, it will be open to the Minister to consider arguments that the person was unaware of the fraud or misrepresentation in deciding whether to revoke their Australian citizenship.

413.       New subsection 34AA(3) of the Act provides that however, the fraud or misrepresentation must have occurred during the period of 10 years before the day of the revocation.

414.       The purpose of this amendment is to clarify that new section 34AA of the Act applies to fraud or misrepresentation which must have occurred during the period of 10 years before the day the person’s Australian citizenship is revoked under new section 34AA. 

415.       New subsection 34AA(4) of the Act provides that without limiting subsection (1), the concealment of material circumstances constitutes a misrepresentation for the purposes of that subsection.

416.       The purpose of this amendment is to clarify that concealment of a material circumstance is taken to be a misrepresentation for the purposes of new section 34AA of the Act.  For example, if a person concealed information that, if it were known to the Minister, would have meant that the Minister would have refused to approve the person becoming an Australian citizen, this will be a misrepresentation for the purposes of new subsection 34AA(1).  However, new subsection 34AA(4) also makes it clear that there are other circumstances which may potentially constitute a misrepresentation for the purposes of new subsection 34AA(1).

417.       New subsection 34AA(5) of the Act provides that if the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.

418.       The purpose of this amendment is to clarify the time the person ceases to be an Australian citizen in circumstances where the Minister makes a decision to revoke their Australian citizenship under new section 34AA of the Act.

419.       The note to new subsection 34AA(5) of the Act provides that a child of the person may also cease to be an Australian citizen: see section 36.

Item 67           Paragraph 36(1)(a)

420.       This item omits “section 33, 34, 34A or 35”, from paragraph 36(1)(a) of the Act, and substitutes “section 33, 33A, 34, 34AA, 34A or 35”.

421.       This is a consequential amendment to items 64 and 66 above which insert new sections 33A and 34AA in the Act.

Item 68           Paragraph 38(1)(a)

422.       This item omits “section 34 or 34A” from paragraph 38(1)(a) of the Act, and substitutes “section 33A, 34, 34AA or 34A”.

423.       Subsection 38(1) of the Act provides that if:

• the Minister makes a decision under section 34 to revoke a person’s Australian citizenship; and
• at the time of the revocation, there is in force a notice under section 37 in relation to the person;

the Minister may request the person to surrender the notice to the Minister.

424.       This is a consequential amendment to items 64 and 66 above which insert new sections 33A and 34AA in the Act.

 

Item 69           After subsection 47(3)

425.       This item inserts a new subsection 47(3A) after subsection 47(3) of the Act.

426.       Subsection 47(1) of the Act currently provides that if the Minister makes a decision under the Act in relation to a person, the Minister must give the person notice of the decision.

427.       Subsection 47(3) of the Act currently provides that if the decision is an adverse decision, the notice must include the reasons for the decision.

428.       New subsection 47(3A) of the Act provides if the decision is made by the Minister personally, the notice may include a statement that the Minister is satisfied that the decision was made in the public interest.

429.       This amendment is linked to item 72 below.  In general terms, new subsection 52(4) of the Act (inserted by item 72 below) provides that if a decision is made by the Minister personally (rather than a delegate) the decision is not subject to review by the Administrative Appeals Tribunal if the notice under section 47 includes a statement that the Minister is satisfied that the decision was made in the public interest.

Item 70           Paragraph 52(1)(f)

430.       This item omits “section 34” from paragraph 52(1)(f) of the Act, and substitutes “section 33A, 34 or 34AA”.

431.       Paragraph 52(1)(f) of the Act provides that an application may be made to the Administrative Appeals Tribunal for review of a decision under section 34 or subsection 36(1) to revoke a person’s Australian citizenship.

432.       This is a consequential amendment to items 64 and 66 above which insert new sections 33A and 34AA in the Act.

Item 71           After subsection 52(2)

433.       This item inserts new subsection 52(2A) after subsection 52(2) in the Act.

434.       Section 52 of the Act sets out the various decisions under the Act in respect of which an application for review can be made to the Administrative Appeals Tribunal (AAT).

435.       Paragraph 52(1)(b) of the Act provides that an application may be made to the AAT for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

436.       Subsection 21(5) of the Act currently provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:

• is aged under 18 at the time the person made the application; and
• is a permanent resident:

§   at the time the person made the application; and

§   at the time of the Minister’s decision on the application.

437.       New subsection 52(2A) of the Act provides that if the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen under subsection 21(5), the person cannot apply for review of that decision unless:

• the person is a permanent resident; or
• the person holds a permanent visa of a kind prescribed in an instrument made under subsection 3(2).

438.       This is a consequential amendment to item 25 above which repeals current paragraph 21(5)(b) of the Act and inserts new paragraph 21(5)(b).

Item 72           At the end of section 52

439.       This item adds new subsection (4) at the end of section 52 of the Act. 

440.       New subsection 52(4) of the Act provides that subsection 52(1) does not apply to a decision made by the Minister personally, where the notice under section 47 included a statement that the Minister is satisfied that the decision was made in the public interest.

441.       This item also inserts a note after new subsection 52(4) of the Act.

442.       The note provides that for decisions that are not reviewable see also new section 52B (about tabling a statement in Parliament).

443.       Subsection 52(1) of the Act as amended by item 70 above provides that an application may be made to the Administrative Appeals Tribunal for review of the following decisions:

• a decision under section 17 to refuse to approve a person becoming an Australian citizen;
• a decision under section 19D to refuse to approve a person becoming an Australian citizen;
• a decision under section 24 to refuse to approve a person becoming an Australian citizen;
• a decision under section 25 to cancel an approval given to a person under section 24;
• a decision under section 30 to refuse to approve a person becoming an Australian citizen again;
• a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5)(about war);
• a decision under sections 33A,  34 or 34AA or subsection 36(1) to revoke a person’s Australian citizenship.

444.       The purpose of new subsection 52(4) of the Act is to ensure that decisions personally made by the Minister under sections 17, 19D, 24, 25, 30, 33, 33A, 34 and subsection 36(1), where the notice under section 47 stated that the Minister is satisfied that the decision was made in the public interest, cannot be the subject of an application to the Administrative Appeals Tribunal for review. The person is able to seek judicial review of any of these decisions.

445.       As an elected Member of Parliament, the Minister represents the Australian community and has a particular insight into Australian community standards and values and what is in Australia’s public interest.  As such, it is not appropriate for an unelected administrative tribunal to review such a personal decision of a Minister on the basis of merit, when that decision is made in the public interest.  As a matter of practice it is expected that only appropriate cases will be brought to the Minister’s personal attention, so that merits review is not excluded as a matter of course.

446.       New subsection 52B(1) of the Act, inserted by item 73 below, provides transparency and accountability measures concerning personal decisions of the Minister which are not reviewable by the Administrative Appeals Tribunal, by requiring a statement to be tabled in Parliament when such a decision is made. 

Item 73           After section 52

447.       This item inserts new sections 52A and 52B into the Act.

448.       New section 52A of the Act provides that the Minister may in the public interest set aside certain decisions of the AAT.

449.       New subsection 52A(1) of the Act provides that if:

• a delegate of the Minister makes one of the following decisions:

§   a decision under section 17, 19D or 24 to refuse to approve a person becoming an Australian citizen;

§   a decision under section 25 to cancel an approval given to a person under section 24;

§   a decision under section 30 to refuse to approve a person becoming an Australian citizen again; and

• the delegate made the decision because the delegate was not satisfied that the person was of good character at the time of the decision or was not satisfied of the identity of the person; and
• the person applied to the Administrative Appeals Tribunal for review of the decision; and
• on that review the Tribunal made a decision of the kind referred to in paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (about setting aside the decision under review); and
• the person has not become an Australian citizen;

then, if the Minister is satisfied that it is in the public interest to do so, the Minister may make a decision setting aside the Tribunal’s decision and make a substituted decision under sections 17, 19D, 24, 25 or 30 as relevant. The note to new subsection 52A(1) provides to see also section 52B (about tabling a statement in Parliament).

450.       This provision applies in relation to decisions of delegates because personal decisions of the Minister, made in the public interest, will be protected from merits review in the first place as provided in the amendments at item 72.

451.       In the last few years, the AAT has made three significant decisions outside community standards, finding that people were of good character despite having been convicted of child sexual offences, manslaughter or people smuggling.  Three other recent decisions of the AAT have found people to have been of good character despite having committed domestic violence offences.

452.       In addition to the above specific instances, there is the potential for some decisions made by the AAT on identity grounds to pose a risk to the integrity of the citizenship programme.  That is, a decision to refuse to approve a person becoming an Australian citizen, or to cancel such approval, where identity is the basis for that decision is critical to ensuring that the value of Australian citizenship is not diminished.  In addition, the provision of a false identity is intrinsically related to the question of whether the person is of good character.

453.       Therefore, this amendment gives the Minister the power to make a decision setting aside the Tribunal’s decision and make a new decision if the Minister is satisfied that it is in the public interest to do so.  This power of the Minister is restricted to decisions where the initial decision of the delegate included the fact that the delegate was not satisfied that the person was of good character at the time of the decision or was not satisfied of the identity of the person.  However, this does not need to be the sole reason for the initial decision of the delegate. 

454.       This power of the Minister is restricted to decisions where the person has not already become an Australian citizen, for example, if the person has already made the pledge or is not required to make the pledge.  This power does not extend to revoking citizenship. 

455.       New subsection 52A(2) of the Act provides that the power under new subsection 52A(1) may be exercised by the Minister personally.

456.       Subsection 52B(3) of the Act, inserted by this item, ensures the transparency and accountability of decisions of the Minister to set aside decisions of the AAT, by requiring a statement to be tabled in Parliament when such a decision is set aside and a new decision made by the Minister. 

Tabling statement in Parliament

457.       New section 52B of the Act provides for when the Minister must table a statement in the Parliament where he or she has set aside a decision of the AAT under new section 52A.

458.       New subsection 52B(1) of the Act provides that if the Minister makes a decision that is not reviewable by the AAT because of subsection 52(4), the Minister must cause to be tabled in each House of the Parliament, within 15 sitting days of that House after the day the Minister makes the decision, a statement that:

·          sets out the Minister’s decision; and

·          sets out the reasons for the Minister’s decision.

459.       New subsection 52B(2) of the Act provides that however, a statement under subsection (1) is not to include the name of the person affected by the decision.

460.       New subsection 52B(3) of the Act provides that if the Minister makes a decision under subsection 52A(1) to set aside a decision of the AAT, the Minister must cause to be tabled in each House of the Parliament, within 15 sitting days of that House after the day the Minister makes the decision, a statement that:

·          sets out the Tribunal’s decision; and

·          states the Minister has set aside the Tribunal’s decision; and

·          sets out the decision made by the Minister in connection with the decision to set aside the Tribunal’s decision; and

·          sets out the reasons for the Minister’s decision to set aside the Tribunal’s decision.

461.       New subsection 52B(4) of the Act provides that however, a statement under subsection 52B(3) is not to include the name of the person affected by the Minister’s decision.

462.       The purpose of new section 52B of the Act is to ensure that while specified decisions made by the Minister personally, at first instance or after setting aside a decision of the AAT, may not be subject to merits review by the applicant, such decisions remain transparent, accountable and open to public comment due to the tabling requirement in this new section.

Item 74           After section 53

463.       This item inserts new section 53A in the Act.

464.       New section 53A of the Act is concerned with the use and disclosure of personal information obtained under the Migration Act or the Regulations made under that Act.

465.       New subsections 53A(1) and (2) of the Act provide:

Use

• The Minister, the Secretary or an APS employee in the Department may use personal information obtained under the Migration Act, or the regulations under that Act, for the purposes of this Act or the regulations under this Act.
• A person to whom personal information is disclosed under subsection 488C(3) of the Migration Act 1958 may use that information for the purposes of this Act or the regulations under this Act.

466.       The purpose of this amendment is to clarify that the Minister, the Secretary or an APS employee in the Department may use personal information obtained under the Migration Act or the regulations under that Act or personal information disclosed under subsection 488C(3) of the Migration Act (inserted by item 77 below) for the purposes of the Act or the regulations under the Act.  

467.       Such personal information would include, but would not be limited to:

• information provided by the person themselves or a third party to the Department concerning an application for a visa made by the person;
• information provided by the person themselves or a third party to the Department concerning the cancellation, or possible cancellation, of a visa held by the person under the Migration Act.

468.       The uses for which the personal information will be put include, but would not be limited to, making a decision whether to approve or refuse to approve the person becoming an Australian citizen under the Act.

469.      This provision will not affect the operation of section 503A of the Migration Act, concerning protection of information supplied to the Department by law enforcement agencies or intelligence agencies.  That is, any information provided under section 503A would not be available for use for citizenship purposes unless express permission is received. 

470.       New subsection 53A(3) of the Act provides:

Disclosure

• The Minister, the Secretary or an APS employee in the Department may disclose personal information obtained under this Act, or the regulations under this Act, to the Minister, the Secretary or an officer (within the meaning of the Migration Act 1958 ) for the purposes of that Act or the regulations under that Act.

471.       The purpose of this amendment is to clarify that personal information obtained under the Act or the Citizenship Regulations may be disclosed to the Minister, the Secretary or an officer (within the meaning of the Migration Act) for the purposes of the Migration Act and the regulations of that Act.

472.       Such personal information would include, but would not be limited to, personal information provided by the person themselves or a third party to the Department concerning an application to become an Australian citizen made by the person.

473.       The exchange of personal information between officers within one Department is regarded as a use, rather than a disclosure, of that personal information for the purposes of the Privacy Act 1988 (the Privacy Act).  As migration and citizenship matters are currently contained within the same portfolio (administered by the Department) the exchange of personal information between officers dealing with migration matters and officers who deal with citizenship matters constitutes a use, rather than a disclosure, of that personal information.

474.       However, it is possible that migration and citizenship matters could be split between different portfolios in future.  On this basis, a provision that permits the disclosure of personal information obtained under the Act or the Citizenship Regulations to the Secretary or to an officer (within the meaning of the Migration Act) for the purposes of the Migration Act and the regulations of that Act is inserted.

475.      This provision will not affect the operation of section 503A of the Migration Act, concerning protection of information supplied to the Department by law enforcement agencies or intelligence agencies.  That is, any information provided under section 503A would not be available for disclosure for citizenship purposes unless express permission is received. 

476.       New subsection 53A(4) of the Act provides:

Definitions

• In this section:

personal information has the same meaning as in the Privacy Act 1988 .

Secretary means the Secretary of the Department.

477.       “Personal information” is defined in section 6 of the Privacy Act to mean information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

478.       The purpose of this amendment is to insert new definitions for the purposes of new section 53A of the Act.

479.       The Privacy Act applies to the use and disclosure of personal information by Australian Privacy Principle (APP) entities.  The Department is an APP entity for the purposes of the Privacy Act.

480.       As an APP entity the Department must use and disclose personal information in accordance with the Australian Privacy Principles (APPs) prescribed in Schedule 1 to the Privacy Act.  Australian Privacy Principle 6 prescribes when the Department may use or disclosure personal information.  Australian Privacy Principle 6 generally provides that the Department can only use or disclose personal information for a purpose for which it was collected (the primary purpose) or for a secondary purpose if an exception applies.  An exception prescribed in APP 6.2(b) of the Privacy Act provides that personal information may be used or disclosed if it is required or authorised by or under an Australian law.

481.       For the avoidance of doubt, the use of personal information in accordance with new subsections 53A(1) and 53A(2) is a use that is authorised by an Australian law for the purposes of the Privacy Act.  The disclosure of personal information in accordance with new subsection 53A(3) is a disclosure of personal information that is authorised by an Australian law for the purposes of the Privacy Act.

Item 75           Section 54

482.       This item inserts “(1)” before “The” in section 54 of the Act.

483.       Section 54 of the Act provides that the Governor-General may make regulations prescribing matters:

• required or permitted by this Act to be prescribed; or
• necessary or convenient to be prescribed for carrying out or giving effect to this Act.

484.       This is a consequential amendment to item 76 below which inserts subsection 54(2) in the Act.

Item 76           At the end of section 54

485.       This item inserts new subsection 54(2) in the Act.

486.       New subsection 54(2) of the Act provides that without limiting subsection 54(1), the Citizenship Regulations may confer on the Minister the power to make legislative instruments.

487.       The purpose of this amendment is to enable the Minister to specify instruments in writing under the Citizenship Regulations.  This will enable the Minister to make legislative instruments under the Citizenship Regulations that include (but will not be limited to) the payment of citizenship application fees in foreign currencies and foreign countries.

 

Migration Act 1958

Item 77           After section 488B

488.       This item inserts new section 488C in the Migration Act.

489.       New section 488C of the Migration Act is concerned with the use and disclosure of personal information obtained under the Act and the regulations.

490.       New subsections 488C(1) and 488C(2) of the Migration Act provide:

Use

• The Minister, the Secretary or an officer may use personal information obtained under the Act, or the regulations under that Act, for the purposes of this Act or the regulations under this Act.
• A person to whom personal information is disclosed under subsection 53A(3) of the Act may use that information for the purposes of this Act or the regulations made under this Act.

491.       The purpose of this amendment is to clarify that the Minister, the Secretary or an officer may use personal information obtained under the Act or the regulations under the Act for the purposes of the Migration Act or the regulations of that Act.

492.       Such personal information would include, but would not be limited to, information provided by the person themselves or a third party to the Department concerning an application by the person to become an Australian citizen.

493.       The uses for which the personal information will be put include, but will not be limited to, making a decision under the Migration Act about whether to cancel a visa that has been granted to the person under that Act.

494.       New subsection 488C(3) of the Migration Act provides:

Disclosure

• The Minister, the Secretary or an officer may disclose personal information obtained under this Act, or the regulations under this Act, to the Minister, the Secretary or an APS employee in the Department for the purposes of the Act or the regulations under that Act.

495.       The purpose of this amendment is to clarify that the Minister, the Secretary or an officer may disclose personal information obtained under the Migration Act or the regulations of that Act to the Minister, the Secretary or an APS employee in the Department for the purposes of the Act or the Citizenship Regulations.

496.       Such personal information would include, but would not be limited to:

• personal information provided by the person themselves or a third party to the Department concerning an application for a visa, or applications for visas, made by that person;
• personal information provided by the person themselves or a third party to the Department concerning the cancellation, or possible cancellation, of a visa held by the person under the Migration Act.

497.       The exchange of personal information between officers within one Department is regarded as a use, rather than a disclosure, of that personal information for the purpose of the Privacy Act. As migration and citizenship matters are currently contained in the same portfolio (administered by the Department) the exchange of personal information between officers dealing with migration matters and officers who deal with citizenship matters constitutes a use, rather than a disclosure, of that personal information.

498.       However, it is possible that migration and citizenship matters could be split between different portfolios in future. On this basis, a provision that permits the disclosure of personal information obtained under the Migration Act or the regulations of that Act to the Minister, the Secretary or an APS employee within the Department for the purposes of the Act and the Citizenship Regulations is inserted.

499.       New subsection 488C(4) of the Migration Act provides that however, subsection 488C(3) does not override section 488.  The note to new subsection 488C(4) provides that section 488 prohibits the disclosure etc. of movement records except in limited circumstances.

500.       Section 488 of the Migration Act is concerned with the use and disclosure of movement records (among other things).

501.       Subsection 488(1) of the Migration Act provides that a person must not:

• read; or
• examine; or
• reproduce by any means; or
• use; or
• disclose by any means;

any part of the movement records, otherwise than in accordance with an authority given under subsection 488(2) of the Migration Act.

502.       Subsection 488(2) of the Migration Act sets out the circumstances in which a person can be authorised to take any of the actions mentioned in subsection 488(1).

503.       Subsection 488(3) of the Migration Act provides that authority under subsection 488(2) to disclose any part of the movement records may be limited to authority to so disclose to a specified person, a person in a specified class, or a specified organisation, only.

504.       Subsection 488(4) of the Migration Act provides that a person (other than an authorised officer carrying out duties or performing functions under or for the purposes of this Act) shall not:

• delete, alter or add to any part of the movement records;
• alter any computer program connected with making, transferring or keeping movement records; or
• in any other way tamper with a notified data base.

505.       “Movement records” is defined in section 5 of the Migration Act to mean information stored in a notified data base.  “Notified data base” is also defined in section 5 of the Migration Act to mean a data base declared to be a notified data base under section 489 of the Migration Act. 

506.       Section 489 of the Migration Act provides that the Minister may, by notice in the Gazette, declare a data base containing information kept for the purposes of this Act in relation to the entry of persons into, and departure of persons from, Australia to be a notified data base for the purposes of this section.

507.       The effect of new subsection 488C(4) of the Migration Act is that personal information that forms part of the notified data base within the meaning of section 489 of that Act cannot be disclosed to the Minister, the Secretary or an APS employee in the Department for the purposes of the Act or the Citizenship Regulations, unless that disclosure is in accordance with an authority given under subsection 488(2) of the Migration Act.

508.       The Privacy Act applies to the use and disclosure of personal information by APP entities.  The Department is an APP entity for the purposes of the Privacy Act.

509.       As an APP entity the Department must use and disclose personal information in accordance with the Australian Privacy Principles (APP) prescribed in Schedule 1 to the Privacy Act.  Australian Privacy Principle 6 prescribes when the Department may use or disclosure personal information.  Australian Privacy Principle 6 generally provides that the Department can only use or disclose personal information for a purpose for which it was collected (the primary purpose) or for a secondary purpose if an exception applies.  An exception prescribed in APP 6.2(b) of the Privacy Act provides that personal information may be used or disclosed if it is required or authorised by or under an Australian law.

510.       For the avoidance of doubt, the use of personal information in accordance with new subsections 488C(1) and 488C(2) of the Migration Act is a use that is authorised by an Australian law for the purposes of the Privacy Act.  The disclosure of personal information in accordance with new subsection 488C(3) is a disclosure of personal information that is authorised by an Australian law for the purposes of the Privacy Act.

Part 2 - Application and transitional provisions

Item 78           Application and transitional provisions

511.       Part 2 of Schedule 1 to the Bill sets out the application provisions for the various items in the Bill.

512.       Subitem 78(1) of the Australian Citizenship Act 2007 provides that in respect of amendments made by items 4 and 6, section 22 of the Act applies on and after the commencement of those items in relation to applications made under section 21 of that Act on or after that commencement.

513.       The purpose of this provision is to clarify that the new definitions of “de facto partner” and “spouse” inserted by items 4 and 6 of the Bill respectively, apply to applications for Australian citizenship by conferral under section 21 of the Act that are made on or after the commencement of those definitions.

514.       Subitem 78(2) of the Bill provides that new subsection 12(3) of the Australian Citizenship Act 2007, as inserted by this Act, applies in relation to births that occur on or after the commencement of item 78.

515.       Paragraph 12(1)(b) of the Act currently provides that a person born in Australia is an Australian citizen if and only if the person is “ordinarily resident” in Australia throughout the period of 10 years beginning on the day the person is born.  The definition in section 3 of the Act generally provides that a person is ordinarily resident in Australia if he or she has his or her home or permanent abode in Australia and is not in Australia for a special or temporary purpose.  New subsection 12(3) provides that a child born in Australia to a parent who had diplomatic privileges and immunities under the Diplomatic Privileges and Immunities Act 1967 , the Consular Privileges and Immunities Act 1972 , the International Organisations (Privileges and Immunities) Act 1963 and the Overseas Missions (Privileges and Immunities) Act 1995 does not acquire Australian citizenship on their tenth birthday (assuming a parent of the person is not an Australian citizen or permanent resident at the time the person is born). 

516.       The purpose of this provision is to clarify that new subsection 12(3) inserted by item 12 applies to people born on or after the commencement of item 78.

517.       Subitem 78(3) of the Bill provides that new subsections 12(4), 12(5) and 12(6) of the Australian Citizenship Act 2007, as inserted by this Act, apply in relation to a 10-year period referred to in paragraph 12(1)(b) of the Act that ends on or after the commencement of this item (whether the birth occurred before, on or after that commencement).

518.       New subsection 12(4) of the Act provides that a child born in Australia does not acquire Australian citizenship on their tenth birthday if at any time during the 10-year period referred to in paragraph 12(1)(b) the person was present in Australia as an unlawful non-citizen. 

519.       New subsection 12(5) of the Act provides that a child born in Australia does not acquire Australian citizenship on their tenth birthday if at any time during the 10-year period referred to in paragraph 12(1)(b) the person was outside Australia and, at that time, the person did not hold a visa permitting the person to travel to, enter and remain in Australia. 

520.       New subsection 12(6) of the Act provides that new subsection 12(5) of the Act does not apply if the person was a New Zealand citizen when the person left Australia and the person was a New Zealand citizen throughout the period of the person’s absence from Australia.

521.       The purpose of this provision is to clarify that new subsections 12(4), 12(5) and 12(6) apply to the 10-year period referred to in current paragraph 12(1)(b) of the Act that ends on or after the commencement of item 78.  This is the case whether the birth of the person occurred before, on or after the commencement of item 78. 

522.       Subitem 78(4) of the Bill provides that to avoid doubt, for the purposes of subitem 78(3), in relation to a birth that occurs before the commencement of item 78, new subsections 12(4), 12(5) and 12(6) of the Australian Citizenship Act 2007, as inserted by item 12, apply in relation to any part of the 10-year period (whether that part occurs before, on or after that commencement.

523.       The purpose of this provision is to clarify that for the purposes of subitem 78(3) if the person was born before the commencement of item 78, new subsections 12(4), 12(5) and 12(6) apply to any part of the 10-year period that occurs before, on or after the commencement of item 78.  If the provisions only applied prospectively, it would enable a person to acquire citizenship automatically if they turned 10 years of age after commencement of the provision even if, for example, they had extended periods as an unlawful non-citizen prior to commencement of the provision.  This would be contrary to the purpose of the amendments.

524.       Subitem 78(5) of the Bill provides that subsection 12(7) of the Australian Citizenship Act 2007 , as inserted by this Act, applies in relation to births, and entries to Australia, that occur on or after the commencement of item 78.

525.       New subsection 12(7) of the Act provides that a child born in Australia does not acquire Australian citizenship on their tenth birthday if a parent of the child did not hold a substantive visa at the time of the child’s birth, that parent has entered Australia on one or more occasions before the person’s birth and at any time during the period beginning on the day the person last entered Australia and ending on the day of the person’s birth, that parent was present in Australia as an unlawful non-citizen. 

526.       The purpose of subitem 78(5) is to provide that new subsection 12(7) of the Act applies to births, and entries to Australia by the parent that occur on or after the commencement of item 78.

527.       Subitem 78(6) of the Bill provides that new subsections 12(8) and 12(9) of the Australian Citizenship Act 2007, as inserted by this Act, apply in relation to persons found abandoned in Australia as a child on or after the commencement of this item.

528.       New subsection 12(8) of the Act provides that a person found abandoned in Australia as a child:

• is taken to have been born in Australia; and
• is taken to have a parent who is an Australian citizen, or a permanent resident, at the time the person is born. 

529.       New subsection 12(9) provides that new subsection 12(8) applies unless and until it is proved:

• the person was outside Australia at any time before the person was found abandoned in Australia as a child; or
• the person’s parent is not an Australia citizen, or a permanent resident, at the time the person is born.

530.       The purpose of this provision is to clarify that new subsections 12(8) and 12(9) of the Act apply to a person found abandoned in Australia on or after the commencement of item 78. 

531.       Subitem 78(7) of the Bill provides that the amendment made by item 13 applies in relation to adoption processes beginning on or after the commencement of that item.

532.       The purpose of this provision is to clarify that the requirement in paragraph 13(a) of the Act (inserted by item 13) that the person be adopted under a law in force in a State or Territory and the adoption process must have begun when the person was aged under 18 applies to adoption processes beginning on or after the commencement of that item.

533.       Subitem 78(8) of the Bill provides that the amendments made by item 14 apply in relation to persons found abandoned in Australia on or after the commencement of that item.

534.       Item 14 repeals current section 14 of the Act.  Current section 14 of the Act provides for citizenship for abandoned children.  New subsections 12(8) and 12(9) of the Act inserted by item 12 will now provide for citizen ship for abandoned children. 

535.       Subitem 78(9) of the Bill provides that the amendments made by items 17 and 18 apply in relation to applications made under section 16 of the Australian Citizenship Act 2007 on or after the commencement of those items.

536.       The purpose of this provision is to clarify that the amendments made by items 17 and 18 of the Bill (which amend key provisions in Subdivision A of Division 2 of Part 2 of the Act (Citizenship by descent)) apply to applications for Australian citizenship by descent under section 16 of the Act on or after the commencement of those items.

537.       Subitem 78(10) provides that the amendments made by items 19 and 64 apply in relation to approvals given under section 17 of the Australian Citizenship Act 2007 on or after the commencement of those items.

538.       The purpose of this provision is to clarify that the amendments made by items 19 and 64 of the Bill ( which repeal section 19A of the Act and insert a new power allowing the Minister to revoke a person’s Australian citizenship in circumstances where the person is approved as an Australian citizen by descent and the Minister is satisfied that the approval should not have been given) apply to approvals given under section 17 of the Act on or after the commencement of those items.

539.       Subitem 78(11) of the Bill provides that the amendments made by items 21 and 22 apply in relation to applications made under section 19C of the Act on or after the commencement of those items.

540.       The purpose of this provision is to clarify that the amendments made by items 21 and 22 of the Bill (which amend key provisions in Subdivision AA of Division 2 of Part 2 of the Act (Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption)) apply to applications for Australian citizenship under section 19C of the Act on or after the commencement of those items.

541.       Subitem 78(12) of the Bill provides that the amendments made by items 23 to 32, 34 to 37, 39, 44 and 45 apply in relation to applications made under section 21 of the Act on or after the commencement of those items.

542.       The purpose of this provision is to clarify that the amendments made by items 23 to 32, 34 to 37, 39 , 44 and 45 (which concern key provisions in Subdivision B of Division 2 of Part 2 (Citizenship by conferral)) apply to applications for Australian citizenship under section 21 of the Act on or after the commencement of those items.

543.       Subitem 78(13) of the Bill provides that the amendments made by items 33, 38 and 40 apply in relation to:

• applications made under section 21 of the Act on or after the commencement of those items; and
• applications made under that section before that commencement and not decided by the Minister before that commencement.

 

544.       The purpose of this provision is to clarify that the amendments made by items 33, 38 and 40 (which relate to the circumstances where the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen) apply to applications for Australian citizenship made under section 21 of the Act made on or after the commencement of those items, as well as applications for Australian citizenship made under section 21 that were made before commencement of those items and not decided by the Minister before commencement of those items

545.       Subitem 78(14) of the Bill provides that the amendments made by items 46 to 56 apply in relation to approvals given under section 24 of the Act before, on or after the commencement of those items.

546.       The purpose of this provision is to clarify that the amendments made by items 46 to 56 apply in relation to approvals for citizenship given by the Minister under section 24 of the Act before, on or after the commencement of those items.

547.       Subitem 78(15) of the Bill provides that the amendments made by items 58, 60 and 61 apply in relation to applications made under section 29 of the Act on or after the commencement of those items.

548.       The purpose of this provision is to clarify that the amendments made by items 58, 60 and 61 apply in relation to applications to resume citizenship made under section 29 of the Act on or after the commencement of those items.

549.       Subitem 78(16) of the Bill provides that the amendment made by item 66 applies in relation to approvals to become an Australian citizen that are given on or after the commencement of that item, whether the fraud or misrepresentation occurred before, on or after that commencement.

550.       The purpose of this provision is to clarify that the amendment made by item 66 applies in relation to approvals to become an Australian citizen that are given on or after the commencement of that item, whether the fraud or misrepresentation occurred before, on or after the commencement of that item.

551.       Subitem 78(17) of the Bill provides that the amendment made by items 69, 71 and 72 apply in relation to decisions made on or after the commencement of those items.

552.       The purpose of this provision is to clarify that the amendment made by items 69, 71 and 72 apply in relation to decisions made by the Minister on or after commencement of that item.

553.       Subitem 78(18) of the Bill provides that new section 52A as inserted by item 73, applies in relation to decision made by the Administrative Appeals Tribunal on or after the commencement of item 78 (whether the decisions by the delegate of the Minister were made before, on or after that commencement).

554.       The purpose of this provision is to clarify that the amendments made by item 73 apply in relation to decisions made by the Administrative Appeals Tribunal on or after the commencement of item 78.  This is irrespective of when the decision was made by the delegate.  For example, if a delegate made a relevant decision on 1 January 2014, item 78 commences on 1 January 2015 and the Administrative Appeals Tribunal made a decision on 2 January 2015, the Minister can make a decision setting aside the Tribunal’s decision and making a new decision, if the Minister is satisfied that it is in the public interest to do so.

555.       Subitem 78(19) of the Bill provides that subsections 53A(1) and (3), as inserted by this Act, apply in relation to personal information obtained before, on or after the commencement of this item.

556.       The purpose of this provision is to clarify that subsections 53A(1) and (3), as inserted by this Act, apply in relation to the use and disclosure of personal information obtained before, on or after the commencement of this item.

557.       Subitem 78(20) provides that regulations in force under section 54 of the Act immediately before the commencement of item 78, continue in force on and after the commencement as if they were regulations in force under new subsection 54(1).

558.       The purpose of subitem 78(20) is to clarify that regulations made under section 54 that were already in force on commencement of item 78, remain in force on and after the amendments to section 54 made by items 75 and 76.

559.       Subitem 78(21) of the Bill provides that subsections 488C(1) and (3) of the Migration Act, as inserted by this Act, apply in relation to personal information obtained before, on or after the commencement of this item.

560.       The purpose of this provision is to clarify that subsections 488C(1) and (3) of the Migration Act, as inserted by this Act, apply in relation to the use and disclosure of personal information obtained before, on or after the commencement of this item.

Attachment A

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Australian Citizenship and Other Legislation Amendment Bill 2014

 

This Bill is compatible with the human rights and freedoms recognised or

declared in the international instruments listed in s 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The Bill amends the Australian Citizenship Act 2007 (the Act) to insert, clarify or strengthen key provisions of the Act.  The following amendments have been assessed as engaging human rights under one or more of the seven core international human rights treaties to which Australia is a party:

·          providing a discretion to revoke a person’s Australian citizenship in circumstances where the Minister is satisfied that the person became an Australian citizen as a result of fraud or misrepresentation, perpetrated by the Australian citizen themselves or by a third party;

·          extending the good character requirement to include applicants under 18 years of age;

·          including the bar on approval for criminal offences in all citizenship streams and including reference to contemporary sentencing practices in the bar on approval for criminal offences;

·          enabling the Minister to cancel approval of citizenship by conferral prior to the Pledge of Commitment if the applicant is no longer eligible;

·          providing a discretion to revoke citizenship by descent in place of the current operation of law provision;

·          limiting automatic acquisition of citizenship at ten years of age to those persons who have maintained lawful residence in Australia throughout the ten years;

·          clarifying the provision giving citizenship to a child found abandoned in Australia;

·          enabling use and disclosure of personal information collected about a client under the Migration Act 1958 to be used for the purposes of the Australian Citizenship Act 2007 and vice versa.

·          providing that personal decisions made by the Minister in the public interest are not subject to merits review;

·          providing the Minister with power to set aside decisions of the Administrative Appeals Tribunal concerning character and identity if it would be in the public interest to do so;

·          aligning access to merits review for conferral applicants under 18 years of age with citizenship eligibility requirements.

 

Providing a discretion to revoke a person’s Australian citizenship in circumstances where the Minister is satisfied that the person became an Australian citizen as a result of fraud or misrepresentation, perpetrated by the Australian citizen themselves or by a third party

 

The Bill proposes to amend the Act to provide that the Minister may revoke citizenship if the Minister is satisfied that the person obtained citizenship as a result of fraud or misrepresentation, whether that fraud or misrepresentation was committed by the person or a third party, for example the person’s migration agent.  This would prevent the defence that an agent or other third party was responsible for the fraud.  As the power to revoke is discretionary, it would be open to the Minister to consider arguments that a client was unaware of the fraud when deciding whether to revoke. 

 

For the purpose of these amendments, it is not intended that a conviction is required.

The amendment has the objective of strengthening the integrity of the Australian citizenship programme by preventing its abuse through misrepresentation and fraud, and seeks to provide stronger disincentives for people to provide false and misleading information in citizenship applications.  It provides mechanisms to revoke citizenship after the fact when that citizenship was obtained through misrepresentation and fraud, particularly given the fact that there are often limited resources to prosecute all but the most serious fraud cases in light of competing prosecutorial priorities.

 

Human rights implications

 

Convention on the Rights of the Child (CRC)

 

Article 3 of the CRC provides that ‘[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. 

 

Article 8 of the CRC provides that: States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

 

As stated above, the provision has the objective of preventing abuse of the citizenship programme.  It has a rational connection to this objective because it prevents applicants from accessing citizenship through fraud or misrepresentation, and provides a disincentive for people to provide fraudulent or misleading information on application.

 

The proposed provision allows for a child’s citizenship to be revoked due to the child’s own act or acts of fraud or misrepresentation even if would make that child stateless.  This is a proportionate and reasonable measure because the child will only have obtained citizenship as a result of fraud or misrepresentation and will have had no other entitlement to that citizenship.  As a result of this revocation, the child would hold an ex-citizens visa, which is a permanent visa by operation of law.  It is noted that while an ex-citizen visa is a visa to remain in Australia and ceases on a person’s departure from Australia, a holder of an ex-citizen visa can apply for another type of visa with a travel facility and will be granted such a visa if they meet the criteria. 

 

The proposed amendment will not permit a child to become stateless due to their parent’s act or acts of fraud or misrepresentation. Section 36 of the Act provides that if:

·          a child’s responsible parent’s citizenship is revoked under this proposed provision and

·          the child’s citizenship is not subject to revocation under the same provision and

·          revocation of the child’s citizenship is considered under s 36 of the Act,

the Minister must not revoke the child’s Australian citizenship if the Minister is satisfied that the child would then become a person who is not a national or citizen of any country. 

Article 12 of the CRC provides ‘(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.  (2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law’.

 

The proposed amendments would give the Minister the discretion to revoke the citizenship of a person, including a child, if the Minister is satisfied that the person was approved for citizenship as a result of fraud or misrepresentation.  Prior to reaching a decision on whether to revoke a child’s citizenship the Minister would afford the person natural justice, which would require giving the child, the child’s parent or the child’s representative the opportunity to be heard, thereby satisfying Article 12.  In exercising the discretion the Minister would give effect to Article 3 by considering the best interests of the child as a primary consideration, noting that these can be weighed against any other primary considerations.  If a child’s citizenship is revoked as a result of a decision made under this provision, by operation of law that child will then hold an ex-citizen visa, ensuring that they maintain lawful status.

 

Extending the good character requirement to include applicants under 18 years of age

 

The current good character requirements in the Act apply only to applicants aged 18 and over.  The department is aware, however, of a number of citizenship applicants who were minors (under 18 years of age) at the time of decision but had significant criminal histories.

 

The proposed amendment provides that all applicants will need to be of good character.  It is proposed that in practice the character requirement be applied to applicants aged 16 and over, for whom it is possible to obtain police records.  However, if the department becomes aware of an applicant who has character issues and is younger than 16, it would be possible to assess that applicant against the character requirement.  In practice, the department would seek criminal history records only for those aged 16 years and over, and this would be done with the client’s consent.  The department would only seek information on the character of applicants under 16 years of age if serious concerns come to attention.  The department would not seek criminal history records of children under the age of ten, being below the age of criminal intent in Australia.

 

The proposed change is similar to provisions which currently exist in the Migration Act, which does not have an age limit for “good character”.  In order to preserve the integrity of the citizenship programme, being the final stage of assessment of a person’s rights to reside in Australia and to access rights and privileges, it is appropriate that the assessment of the character of applicants for citizenship is at least as thorough as the assessment of character in the migration context.  The amendment is therefore aimed at the legitimate objective of upholding the value of citizenship and ensuring uniformity and integrity across the citizenship programme.

 

Human rights implications

 

Convention on the Rights of the Child

 

The good character amendment engages rights set out in the CRC.

 

As noted above, Article 3 sets out that the best interests of the child shall be a primary consideration in all actions concerning children.

 

The Australian Citizenship Instructions (ACIs) set out the policy considerations to be taken into account by decision makers when assessing whether an applicant meets the good character requirements.  The ACIs will set out instructions to ensure that decision makers consider the best interests of the child in making a character assessment for applicants aged under 18.  The proposed measure is therefore consistent with Article 3 inasmuch as the decision needs to take the best interests of the child into account.

 

International Covenant on Civil and Political Rights

 

The amendment may engage Article 26 of the ICCPR.  This is a stand-alone right which will be breached if a person does not enjoy equality before the law or equal protection of the law with others, on the basis of discrimination on a prohibited ground.  The good character amendment provides for differential treatment on the basis of a criminal record and therefore engages the rights to equality and non-discrimination.  This difference in treatment is permissible as it has an objective and reasonable justification, which is ensuring that the privileges of Australian citizenship are only given to those applicants, both adults and children, who are of good character and have not committed certain criminal offences.  The provision is clearly articulated and proportionate to meet this legitimate policy objective.

 

Including the bar on approval for criminal offences in all citizenship streams and including reference to contemporary sentencing practices in the bar on approval for criminal offences

 

Subsection 24(6) of the Act currently requires that a person not be approved for citizenship by conferral when a prescribed period of time has not passed since the person was confined in prison for certain categories of offences or the person is subject to proceedings in relation to a range of offences.  The Bill amends this provision to reflect current sentencing practices.  It also inserts an equivalent provision in all citizenship by application streams.

 

The proposed amendments will extend the bar on approval when a person has been sentenced to a term of imprisonment to include contemporary sentencing practices, including home detention and when a person is not free of obligations to the court following a criminal offence.  This is aimed at the policy objective of ensuring that citizenship is only available to those people who can demonstrate that they respect the laws of Australia even when they are not subject to an obligation to the court.

 

Currently there is an inconsistent approach across citizenship streams with regard to the impact of criminal history on citizenship eligibility.  For example, applications for citizenship by descent do not have the same bar on approval as applications for citizenship by conferral, yet the applicants may be in similar circumstances, that is, subject to actions, penalties or obligations arising from proceedings of an Australian court.

 

The proposed amendments will insert the equivalent of subsection 24(6) Offences into the descent, adoption and resumption provisions so that the same bar applies to all citizenship streams.  This will ensure that applicants in all citizenship streams must meet the same requirements in relation to criminal history.  This upholds the intent of the Act, as expressed through the Preamble, where the full and formal membership of the Australian community is available to people who will accept to undertake obligations of citizenship, including respecting the rights and liberties of others and upholding and obeying the laws of Australia.

 

Human rights implications

 

International Covenant on Civil and Political Rights (ICCPR)

 

The proposed offences provisions may engage Article 26 of the ICCPR.  Article 26 of the ICCPR is a stand-alone right which will be breached if a person does not enjoy equality before the law or equal protection of the law with others, on the basis of discrimination on a prohibited ground.  The right to ‘equality before the law’ is not a right to substantive equality.  Rather, it provides for formal equality in the form of equal application of the law.  It is not directed at legislation but rather exclusively at its enforcement.  It prohibits arbitrary enforcement of laws.  Laws, policies and programs should not discriminate on the basis of grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or ‘other status’.  The United Nations Human Rights Committee has not attempted to define ‘other status’, but has decided it on a case-by-case basis.  Decisions by the Committee suggest that a clearly definable group of people linked by their common status is likely to fall under the definition of 'other status'.  Among others, the following statuses have been held to qualify as prohibited grounds - age, nationality, marital status, disability, place of residence within a country and sexual orientation.

 

The amendments provide for differential treatment on the basis of a criminal record.  This difference in treatment is permissible as it has an objective and reasonable justification, which is ensuring that the privileges of Australian citizenship are only given to those who are of good character and have not committed certain criminal offences.  The provisions are clearly articulated to meet this policy objective and are proportionate to achieving the legitimate aim of strengthening and achieving greater consistency across the citizenship programme. 

 

 

Convention on the Rights of Persons with Disabilities (CRPD)

 

The proposed amendments engage paragraphs 1 and 2 of Article 5 of the CRPD, which states:

1.       States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

2.       States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

3.       In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

4.       Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

 

As stated above, these amendments are aimed at ensuring that citizenship is only available to those people who are not subject to an obligation to the court.  This extends to people who have a mental illness and who have been subject to an order of the court requiring them to participate in a residential program for the mentally ill in connection with proceedings for an offence against Australian law.  On its face, these amendments discriminate against persons with a mental illness.

 

However, this measure has a rational connection to the legitimate objective outlined above.  Being of good character is a fundamental tenet of the citizenship programme.  In the same way, it is legitimate for the government to specify that a person cannot be approved for citizenship if they are currently before the courts or under an obligation to the courts following proceedings for a criminal offence.  Contemporary obligations to the court extend beyond traditional sentencing to include residential programs for those with drug addictions or the mentally ill.  It is necessary for the citizenship programme to take into account these updated sentencing practices in order that the programme’s bar on approvals are reflective of current practice.

 

The amendments are proportionate to achieving this objective in that they reflect the criminal law, which imposes consequences for committing a criminal offence on all persons, including those with a mental illness.  The amendments therefore do not impose an arbitrary or unreasonable limitation on the rights of persons with a mental illness to enjoy non-discriminatory treatment under the law.  They merely reflect the criminal law’s inclusion of sentencing practices relating to persons with a mental illness.  The criminal courts will have weighed up issues concerning a defendant’s mental illness before imposing any sentence, including a residential program.  The Act merely deals with the consequences of such a finding by the criminal courts and ensures that the citizenship programme can be more accurate and up-to-date in its ability to determine whether a person should be given the privileges of citizenship.

 

In addition, the provision does not have the effect of preventing a person from ever obtaining citizenship.  Rather, it is a bar on approval while the person is subject to an order of a court requiring participation in a residential program in connection with a criminal offence.  Once that residential program has been completed, the person is able to apply for citizenship.  While the offence would be taken into account under the good character requirement, decision makers can consider extenuating circumstances and this could include evidence concerning any mental illness.

 

Enabling the Minister to cancel approval of citizenship by conferral prior to the Pledge of Commitment if the applicant is no longer eligible

 

Section 25 of the Act sets out the grounds for when the Minister may cancel an approval of citizenship by conferral.  This includes when the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person:

·          is not a permanent resident,

·          is not likely to reside, or continue to reside, in Australia or maintain a close and continuing association with Australia, or

·          is not of good character.

 

The bill proposes to amend the Act to set out the circumstances in which the Minister must cancel an approval of a person as an Australian citizen given to a person under s 24, and the circumstances in which the Minister may cancel such an approval.

 

The prohibitions in section 24 of the Act provide that the Minister must not approve a person’s application for citizenship if the Minister is not satisfied of the person’s identity (section 24(3)), if an adverse or qualified security assessment in respect of the person is in force (section 24(4)), or if the person has been convicted of a national security offence (section 24(4A)).

 

The amendment in this bill provides that the Minister must cancel approval of a person’s citizenship by conferral if the Minister is satisfied that the person would no longer be approved under section 24 because of the above prohibitions.  As such, the amendment is aimed at aligning cancellation of approval with the prohibitions on approval, and has the legitimate objective of ensuring that citizenship is only conferred on those applicants whose identities are assured and who do not pose a risk to Australia’s security.  It does this by ensuring that identity and national security remain mandatory factors of assessment at every stage of the approval process, particularly where a person’s application would not have been approved in the first place had the information leading to a section 25 cancellation come to light at the time of application.  This provides consistency across citizenship approvals and upholds the integrity of the citizenship programme.

 

Human rights implications

 

International Covenant on Civil and Political Rights (ICCPR)

 

One of the proposed circumstances in which the Minister must cancel the approval of citizenship of a person is when the person has been convicted of a national security offence.  As noted above, Article 26 of the ICCPR is a stand-alone right which will be breached if a person does not enjoy equality before the law or equal protection of the law with others, on the basis of discrimination on a prohibited ground.  The proposed amendments concerning cancellation of approval provide for differential treatment on the basis of a criminal record and therefore engage the rights to equality and non-discrimination.  This difference in treatment is permissible as it has an objective and reasonable justification, which is ensuring that the privileges of Australian citizenship are only given to those who are of good character and have not committed certain criminal offences.  The provisions are clearly articulated to meet this policy objective and are proportionate to achieving this legitimate aim.

 

Providing a discretion to revoke citizenship by descent in place of the current operation of law provision

 

A child born overseas may be eligible for citizenship by descent under section 16 of the Act:

·          if at least one of the child’s parents is an Australian citizen at the time of the child’s birth; and

·          if the parent is a citizen by descent, the parent has  spent an accumulated period of two years in Australia prior to application. 

 

Currently s 19A provides that where a person was approved for Australian citizenship by descent but did not have an Australian citizen parent at the time of birth, then that person is taken to have never become an Australian citizen.  The same provision was contained in the regulations under the Australian Citizenship Act 1948 . 

 

The 1948 Act also provided that where a parent who was a citizen by descent was later found not to have spent the required period in Australia before their child was approved as a citizen, the child never was a citizen.  Section 19A does not currently apply to cases where a person was approved for citizenship by descent but their parent did not satisfy the parental residence requirement.  The person remains an Australian citizen even though they did not satisfy all the legal requirements.  The original policy intention of s 19A was to include such cases - that is a person is not an Australian citizen by descent unless the legal criteria were met at time of application.

 

Over time the department has encountered a number of cases where a person who was registered as an Australian citizen by descent has been found not to have been eligible and consequently to have never been a citizen.  The operation of law aspect of s 19A has meant the department has had no discretion in relation to these cases.  Once it has been determined that the person was never entitled to citizenship by descent then a finding of fact is made that the person is not and never was a citizen, regardless of matters such as the age of the person, whether they were an innocent party to the incorrect registration and their integration into the community.

 

The proposed amendments repeal s 19A and insert a discretionary power to revoke citizenship by descent when the person was registered despite not meeting the requirements for registration.  This would allow the circumstances of a particular case to be taken into account when deciding if citizenship by descent should be revoked.  The proposed amendments also attach merits review rights to a decision to revoke citizenship by descent of a person who was registered despite not meeting the requirements for registration.  Access to judicial review of such decisions, as required under s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 , is also available.

 

Human rights implications

 

Convention on the Rights of the Child

 

Article 3 of the CRC provides that ‘[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.  However the best interests of the child may be outweighed by countervailing considerations. 

 

Article 12 of the CRC provides ‘(1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.  (2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law’.

 

The proposed amendments would provide certainty as to the citizenship status of a person who is incorrectly approved for citizenship by descent.  Such a person will be a citizen unless the Minister exercises the discretion to revoke the person’s citizenship.  As noted above, the proposed discretionary revocation power would allow the circumstances of a particular case to be taken into account when deciding if citizenship by descent should be revoked.  This would include the best interests of the child and the views of the child and/or the child’s representative.  Consequently, the repeal of s 19A and introduction of the discretionary revocation power is reasonable, proportionate, and in fact promotes the rights in the CRC by providing scope for discretion in decision-making.

 

Limiting automatic acquisition of citizenship at ten years of age to those persons who have maintained lawful residence in Australia throughout the ten years

 

Section 12 of the Act provides, among other matters, that a person born in Australia who is not otherwise an Australian citizen becomes a citizen on their tenth birthday if they were ‘ordinarily resident’ in Australia for the first ten years of their life.  This is known as the ‘ten year rule’. 

 

Section 3 of the Act provides that a person is taken to be ‘ordinarily resident’ in a country if they have their home in that country or it is the country of their permanent abode.  There is no requirement that the person’s residence in Australia was lawful, but they cannot have been present in Australia for a temporary or special purpose.  The person may have been temporarily absent from Australia during the ten years provided they maintained their permanent abode in Australia throughout the ten year period. 

 

In effect, the ten year rule provides Australian citizenship to children who were born in Australia, have spent their formative years here and have their established home here, regardless of their visa status.

 

In its February 2000 report, Australian Citizenship for a New Century, the Australian Citizenship Council recommended that the provisions relating to the acquisition of Australian citizenship by birth remain unchanged, but that the Government monitor the use of paragraph 10(2)(b) [the then equivalent of current paragraph 12(1)(b)] and take appropriate action to tighten the provision if evidence of abuse emerges.  Concerns have since been raised that the ten year rule has the effect of encouraging some temporary residents and unlawful non-citizens to have children in Australia and to keep their child onshore until at least their tenth birthday, whether lawfully or unlawfully, in the expectation that the child will obtain citizenship and provide an anchor for family migration and/or justification for a ministerial intervention request under the Migration Act 1958.  There is a correlation between the foreign citizenships, or eligibility for foreign citizenships, of applicants for evidence of citizenship under the ten year rule and the citizenships of parents who request ministerial intervention, usually after having been long-term unlawful non-citizens. 

 

The proposed amendments will exclude from the operation of the ten year rule any person:

·          who was an unlawful non-citizen at any time during the ten years from their birth in Australia, or

·          who was outside Australia without a visa to return at any time during the ten years from their birth, or

·          whose parent was an unlawful non-citizen at any time between that parent’s last entry to Australia prior to the person’s birth and the person’s birth.

 

These exclusions will not apply in certain circumstances, such as where the person travelled outside Australia as a New Zealand citizen or where the person’s parent had been an unlawful non-citizen but regularised their status prior to the person’s birth.

 

Human rights implications

 

Convention on the Rights of the Child (CRC)

 

Article 3 states that the best interests of the child shall be a primary consideration in all actions concerning children.  To that end, a legislative body is required to consider the best interests of the child as a primary consideration.  The Australian Government is also required to determine whether these interests are outweighed by other primary considerations, such as the integrity of the citizenship programme.

 

As stated above, this amendment is aimed at encouraging lawful pathways to migration and citizenship, and discouraging abuse of the ten year rule by unlawful non-citizens. In introducing a provision that encourages lawful residence, whereby a child will have greater access to education, health and social welfare, the department is taking into account the best interests of the child as a primary consideration.

 

Article 7 of the CRC provides:

“1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”

 

It is noted that “in international law, the terms ‘nationality’ and ‘citizenship’ are used interchangeably” and the right to a nationality “does not necessarily require countries to give their nationality to every child born in their territory” (Human Rights Guidance Papers, Right to a name and acquire a nationality ).  It remains a matter for States to determine under their own laws who can be regarded as their citizens.

 

The proposed amendment does not derogate from the child’s right to nationality.  Where a child already has a nationality, their right to a nationality is unaffected by the proposed amendment.  Children who are born onshore, who have no nationality and who cannot become citizens through the ten year rule because of the proposed amendment will nonetheless have access to Australian citizenship through the statelessness provision in s 21(8) of the Act. 

 

As such, the right to nationality is engaged by the proposed amendment but is able to be addressed by other provisions of the Act.  The amendment is therefore reasonable and proportionate.

 

Overall, the proposed amendments are consistent with the obligations under the CRC.

 

International Covenant on Civil and Political Rights (ICCPR)

 

The proposed amendments engage the rights under Article 24.3 (“Every child has the right to acquire a nationality”).  It is noted that this was dealt with in the discussion of CRC arrangements above.  For those reasons, this measure is similarly consistent with that obligation.

 

The amendments also engage Article 26 of the ICCPR, which states:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

 

The amendments treat New Zealand citizens differently to citizens of other countries, and therefore engages Article 26 on non-discrimination on the basis of national origin.  New subs 12(6) provides that new subs 12(5) does not apply in relation to a person if the person was a New Zealand citizen when the person left Australia and the person was a New Zealand citizen throughout the period of the person’s absence from Australia.  This reflects the treatment given to New Zealand citizens under the Trans-Tasman Travel Agreement, which includes access to a special category visa, the subclass 444 visa.  This visa is granted on arrival in Australia and ceases on departure from Australia.  There is no facility to retain a subclass 444 visa for the duration of any absence from Australia and New Zealand citizens are not expected to obtain another type of visa while absent from Australia.  Consequently, the discrimination in favour of New Zealand citizens in proposed subs 12(6) supports the operation of the Trans-Tasman Travel Agreement.

 

In summary, the amendment is not inconsistent with human rights.

 

Clarifying the provision giving citizenship to a child found abandoned in Australia

 

Section 14 of the Act currently provides:

“A person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved.”

 

The proposed amendment has the legitimate objective of clarifying the meaning of the abandoned child provision.  The proposed amendment makes it clear that the presumption applies unless and until it is proven that the person does not meet the requirements of the citizenship by birth provisions in s 12 of the Act or that the person was outside Australia at any time before the person was found abandoned in Australia as a child.  In linking the abandoned child provision to the requirements for citizenship by birth, the amendments repeal s 14 of the Act and add the new provision to s 12.

 

The proposed amendment is consistent with the Convention on the Reduction of Statelessness 1961 as it returns the provision to the intention of Article 2 of that Convention, which effectively requires that a foundling be dealt with as a citizen by birth unless and until it is determined that they are not a citizen by birth:

“A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State.”

 

Human rights implications

 

Convention on the Rights of the Child (CRC)

 

Article 3 sets out that the best interests of the child shall be a primary consideration in all actions concerning children.  To that end, a legislative body is required to consider the best interests of the child as a primary consideration, and to determine whether these interests are outweighed by other primary considerations, such as the integrity of the citizenship programme.

 

As outlined above, Article 7 of the CRC enshrines the right of every child to acquire a nationality.  It remains a matter for States to determine under their own laws who can be regarded as their citizens.  There is no international obligation that States must give citizenship to all abandoned children found in their territory.

 

The right to nationality is engaged by the proposed amendment and is only impacted insofar as it reflects our obligations under international law.  As a result, this is consistent with the right to nationality under the CRC.

 

International Covenant on Civil and Political Rights (ICCPR)

 

The proposed amendments engage the rights under Article 24.3 (“Every child has the right to acquire a nationality”).  It is noted that this was dealt with in the discussion of CRC arrangements above.  For those reasons, this measure is similarly consistent with that obligation.

 

In summary, the amendment is not inconsistent with human rights.  Australian citizenship may be acquired automatically or by application.  The proposed amendment is to directly link the presumption of citizenship for abandoned children to the citizenship by birth provisions. 

 

Enabling use and disclosure of personal information collected about a client under the Migration Act 1958 to be used for the purposes of the Australian Citizenship Act 2007 and vice versa

 

The Bill amends the Act and the Migration Act to allow personal information collected for the purposes of one Act to be used for the purposes of the other Act.  This means the Minister (or delegate) can rely on Australian Privacy Principle 6.2(b) as lawfully permitting the use of that personal information.  The amendment is aimed at the legitimate objective of facilitating the efficient use of information held by the department as a whole to ensure that it can carry out its functions under the two Acts that it administers with accuracy and effectiveness.

There are often instances in which the personal information provided by a person to the Department under the Migration Act or the Migration Regulations is required to make a decision in relation to the person under the Act or the Citizenship Regulations.  Such information is often essential in verifying the information the person provided in relation to their application for Australian citizenship.  Allowing a delegate to have regard to this information would enhance the Department’s ability to detect fraud in individual cases, improve client service and improve decision-making on citizenship applications overall.

 

Human rights implications

 

International Covenant on Civil and Political Rights (ICCPR)

 

The proposed amendments concerning the use and disclosure of personal information may have impact on the privacy of individuals.  Privacy is a right protected under Article 17 .  Article 17 provides that ‘No one shall be subjected to arbitrary or unlawful interference with his privacy…’. 

 

For the purposes of this assessment it is accepted that persons affected by these amendments generally would be within Australia’s jurisdiction.  The issue for consideration is therefore whether the measure constitutes an arbitrary or unlawful interference with privacy.  This does not constitute ‘interference’ as the measure envisages positive steps which must be taken by an applicant to apply for a visa or citizenship (rather than something that would be done without the applicant’s consent) and where information is being provided willingly for the purpose of the application.  It also impliedly requires the production of evidence to establish a fact. 

 

Although the Human Rights Committee has not defined privacy, it should be understood to comprise of freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.  This measure does not fall within this definition as properly understood, as generally the department will obtain a person’s informed consent to use their personal information for purposes other than their application and, further, the information is being lawfully collected and used under the Act.  The sharing of information obtained under two acts administered by the same department, where a decision under one Act could have consequences for the other and for the integrity of the whole department’s functions is therefore not an ‘unwarranted or unreasonable’ intrusion within the sphere of individual autonomy.

 

In the alternative, if this measure was seen to engage the ‘privacy’ element, the measure is neither ‘arbitrary’ (in as much as it is unreasonable or capricious) or ‘unlawful’.  In the first instance, the measure cannot be characterised as arbitrary because it will:

·          not be unlimited in nature and would have a high degree of certainty as to who is affected and in what circumstances;

·          be effective in ensuring that decision-makers are legitimately able to use information held by the Department;

·          apply equally to all people who engage with the Department for purposes of migration and citizenship; and

·          not be unreasonable given that:

o    for the majority of citizenship clients the migration and citizenship processes form a continuum, managed by a single agency; and

o    it is in the public interest that information held by the Department and other agencies be effectively utilised to arrive at lawful and merit-based decisions.

 

The collection of information (as discussed above) is lawful, as it fits within the Privacy Principles. 

 

Consequently, any ‘interference’ with privacy is neither arbitrary nor unlawful so is not inconsistent with Article 17.

 

Providing that personal decisions made by the Minister in the public interest are not subject to merits review

 

The Act currently provides for merits review for all decisions made under the Act except where the Minister has personally decided to exercise, or refrain from exercising, the discretion to apply the alternative residence requirements. 

 

The proposed amendment would remove merits review from personal decisions of the Minister which are taken in the public interest.

 

The Australian Administrative Law Policy Guide states “As a matter of policy, an administrative decision that will, or is likely to, adversely affect the interests of a person should be reviewed on the merits, unless there are factors justifying the exclusion of merits review.” The Administrative Law Council has stated that “policy decisions of a high political content”, particularly those made personally by the Minister, may be justifiably excluded from merits review (1999 paper on What Decisions should be Subject to Merits Review ?).

 

The amendment is aimed at the policy objective of protecting personal decisions of the Minister, an elected public official, made in the public interest from review by an unelected administrative tribunal.  It seeks to uphold the Minister’s role in representing the Australian community, having gained a particular insight into community standards and values.

 

Human rights implications

 

Convention on the Rights of the Child

 

As noted above, Article 3 sets out that the best interests of the child shall be a primary consideration in all actions concerning children.

 

All decisions personally made by the Minister currently take into account and will continue to take into account the best interests of the child. The proposed measure is therefore consistent with the Article 3.

 

Providing the Minister with power to set aside decisions of the AAT concerning character and identity if it would be in the public interest to do so

 

The proposed amendments provide the Minister with a power to set aside decisions of the Administrative Appeals Tribunal (AAT) concerning character or identity if it would be in the public interest to do so.

 

The proposed provision is similar to the power under s 501A of the Migration Act.

 

The amendment is aimed at the legitimate objective of ensuring that the public interest is taken into consideration when assessing issues of character and identity, particularly where the AAT presently has no obligation to do so.  It seeks to uphold the Minister’s role in representing the Australian community and protecting its interests.

 

It is recognised that such a power to set aside AAT decisions is a serious one, and it would be used sparingly in cases where a decision of the AAT about the character and identity of a citizenship applicant is outside community standards and expectations.  Transparency and accountability would be provided by a statement tabled in Parliament within 15 sitting days of the decision being made.

 

Human rights implications

 

International Covenant on Civil and Political Rights

 

As outlined above, Article 14 of the ICCPR states: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

 

The Minister’s power to set aside AAT decisions concerning character or identity engages the right of an individual to have a fair and public hearing.  However, the provision does not impact the enjoyment of this right for two reasons:

 

1.       Applicants for citizenship who have been affected by the Minister’s decision to set aside AAT decisions will still be entitled to seek judicial review of the Minister’s decision under s 75(v) the Constitution and s 39B of the Judiciary Act 1903 at the Federal and High Courts.

 

2.       The AAT has stated that the Minister’s power to set aside AAT decisions does not compromise its independence as a tribunal.  In addition, the president of the AAT in Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 emphasised the role of the AAT as part of the executive government of the Commonwealth, noting that the AAT does not exercise judicial power.

 

Convention on the Rights of the Child

 

As noted above, Article 3 sets out that the best interests of the child shall be a primary consideration in all actions concerning children.

 

To the extent that any decision of the Minister to set aside an AAT decision would affect a child, that decision of the Minister would take the best interests of the child into consideration, as is practice in all decisions made by the Minister and the Minister’s delegates.  Therefore, the human right enshrined in Article 3 is engaged and not impacted negatively.

 

Aligning access to merits review for conferral applicants under 18 years of age with citizenship eligibility requirements

 

Persons aged under 18 who apply under subs 21(5) to become an Australian citizen currently have a right of merits review even when that right to merit review is futile because do not meet the objective legislative requirement that  must be a permanent resident to be eligible for citizenship. 

 

The proposed amendments provide that persons under the age of 18 who are permanent residents or hold a permanent resident visa prescribed for the purposes of subs 21(5) are eligible to apply for merit review of an adverse decision made under subs 21(5).  This means that persons under the age of 18 who are applicants for conferral of citizenship under subs 21(5) and who are unable to meet the objective criteria of being a permanent resident or holding a prescribed visa will no longer have a futile right to review.

 

The Australian Administrative Law Policy Guide states ‘As a matter of policy, an administrative decision that will, or is likely to, adversely affect the interests of a person should be reviewed on the merits, unless there are factors justifying the exclusion of merits review’.  The factors justifying the exclusion from merits review for those applicants who do not meet the fundamental and non-discretionary requirement of permanent residence are:

·          the review body is not burdened by a caseload that has no prospect of success at review;

·          the availability of informal internal review where it is claimed that the finding that the person was not a permanent resident at the time of application was an error of fact that led to a jurisdictional error;

·          the availability of judicial review.

 

 

Human rights implications

 

Convention on the Rights of the Child

 

As noted above, Article 3 sets out that the best interests of the child shall be a primary consideration in all actions concerning children.

 

As stated above, the acquisition of citizenship is not a right and countervailing considerations may be considered in relation to the best interests of the child.  The proposed measure is therefore consistent with Article 3 in as much as the decision needs to take the best interests of the child into account.

 

Conclusion

 

The Bill is compatible with human rights as stated above because, to the extent that it may limit human rights , those limitations are reasonable, necessary and proportionate.