Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Thursday, 6 May 1982
Page: 2356

Mr MACPHEE (Minister for Immigration and Ethnic Affairs) —by leave- Since the Citizenship Act came into force in 1949 there have been significant changes in the way Australian society perceives itself. In a number of ways the Act no longer adequately reflects the current values and attitudes of the Australian community. It is timely, therefore, that significant changes be now contemplated. A review of the Australian Citizenship Act has been underway for some time. In this process, the Australian Council for Population and Ethnic Affairs has considered the current legislation and assisted in the formulation of proposals for change. The issues have also been raised with State Ministers responsible for immigration and ethnic affairs and they have indicated various areas where changes are desirable. A number of amendments are now proposed and it is timely that the Parliament and the general community should now have the opportunity to consider the proposals and contribute to the review. Once this process of consultation has been completed, a Bill to amend the Act will be drafted and introduced.

The most important feature of citizenship is that it makes an individual an institutional member of the nation. This brings certain rights and responsibilities to participate in the nation's affairs, including government, through the right to vote and the right to stand for election. Citizenship also means that the State will afford the citizen the maximum possible protection when outside the country of citizenship. Citizenship also carries a clear sense of belonging to, and identification with, the nation, its people, its values and its institutions. This is very much a personal thing. Naturally, the intensity of identification or commitment varies from individual to individual. To some people citizenship means little more than the convenience of an Australian passport and the right to return without formality after an overseas visit. For many new settlers it is a solemn undertaking involving a major change in their obligations and sense of identity.

Acquiring Australian citizenship should not require suppression of one's cultural heritage or identity. Rather, the act of becoming a citizen is- symbolically and actually-a process of bringing one's own gift of language, culture and traditions to enrich the already diverse fabric of Australian society. Our vision of our multicultural society shares, with our concept of citizenship, a strong emphasis on building a cohesive and harmonious society which is all the more tolerant and outward-looking because of the diversity of its origins. To debate whether citizenship is a right or a privilege can be futile. It should be a right providing a person meets whatever requirements are specified. In another sense it is a privilege bestowed by the Australian community. Citizenship should be seen as a mutual arrangement between the individual and the nation. Each makes a commitment to the other and derives benefits from so doing. Whatever the perspective, the same requirements should apply to all potential citizens without favour or discrimination.

From the current review there has emerged general agreement on the following five matters: Firstly, it is desirable for the entire community to be aware of the benefits and the obligations attaching to citizenship; secondly, the meaning and value of citizenship should be enhanced; thirdly, there should be no discrimination within eligibility criteria for citizenship; fourthly, the provisions of the Citizenship Act should be as objective as possible and subjectivity should be minimised; and, fifthly, the administrative simplicity of the current Act should be preserved. In recent years citizenship has been the subject of considerable discussion within the community and the major parties have devoted time, thought and effort in developing policies on citizenship. The Government is committed to a policy of enhancing the status of citizenship and encouraging those who are qualified for citizenship, but have not yet applied, to become Australian citizens. There are an estimated 1.2 million such persons in Australia. Citizenship is the symbol of a common national identity and commitment to the nation. A common national identity should be the tie that binds a multicultural Australia together.

We sometimes think of citizenship solely as a status granted by the Commonwealth Government to residents who are non-citizens. Such a perspective is misleadingly narrow. Australian citizenship belongs to all Australians. It is-or should be-important to all levels of government and all of the institutions of our society. Representatives from all tiers of government-local, State and Federal-are welcomed at citizenship ceremonies. The role of local government in conducting these ceremonies is particularly important as it brings the local community tangibly into the citizenship process. It also brings the new citizen into close contact with one of the principal building blocks of Australian society, our system of local government.

The amendments to the Act which I am suggesting for consideration are directed broadly at four goals: firstly, to remove all discriminatory aspects which give preferential treatment on the basis of national origin, sex or marital status; secondly, to eliminate anomalies and reduce subjectivity in criteria for citizenship; thirdly, to clarify and simplify administrative requirements in the application of the Act and remove provisions which are no longer relevant; and, fourthly, to provide for independent review of decisions to deny persons citizenship. At the same time there are a number of technical and other minor amendments which ought to be made in order to update the Act. In the course of community consideration and discussion of the issues, I hope there will be also close examination of the consequential amendments which will be required in the Citizenship Act or in other legislation if the proposals for change are adopted.

In the review of the Act, our first priority was to look at the fundamental concepts underlying citizenship. There is considerable variation in the citizenship laws and policies of other countries. In general, however, they tend to be based on one or other of two concepts: Citizenship by the soil, that is, birth in the country concerned-or citizenship by blood, that is, transmitted by descent. In many cases where citizenship is based primarily upon one of these concepts, there are some concessions also to the other. Australia's approach to citizenship has been a mixture of both principles. As a result, virtually all children born in Australia automatically acquire citizenship. Also, virtually all children, wherever they are born, may acquire Australian citizenship upon registration if they have a parent who is an Australian citizen, regardless of whether those children or their parents ever intend to live in Australia or to maintain a connection with this country.

Both of these principles are desirable. In general, the children born in Australia to people who have made their home here ought to be Australian citizens automatically by virtue of their birth here. Equally, Australians who have children while abroad should be able to pass on Australian citizenship and its benefits to those children. And, of course, in a country of immigration such as Australia it is most important that we have a mechanism through which those who were neither born here nor born overseas to Australian parents may obtain Australian citizenship after settling in Australia, getting to know their new country and committing themselves to it.

While supporting all three approaches to the acquisition of citizenship, I recognise that all three are open to abuse and exploitation under certain circumstances. If we value citizenship we should ensure that the laws and procedures which govern it strike a fair and sensible balance between the rights and the freedoms of individuals and the importance of ensuring that the status of being an Australian citizen is not open to abuse. In the present Act the only persons born in Australia who do not automatically acquire Australian citizenship are the children born to foreign diplomats and those born to enemy aliens occupying Australian territory in time of war. This means that a child born to a tourist who is making a visit of a few days to Australia is automatically an Australian citizen for life even though that child may leave Australia immediately and have no further contact with this country. Equally, illegal immigrants who bear children while in Australia automatically acquire Australian citizenship for those children. There have been tragic cases over recent years where such children have been exploited by their parents to circumvent the normal provisions of Australia's immigration legislation and policy. In other cases the acquisition of Australian citizenship by children in this way is sometimes an inconvenience or embarrassment when they return to another country. But whether such citizenship is wanted or not, its acquisition should not be the result of an accident of timing or the consequence of a contrivance to circumvent Australia's immigration arrangements. Rather, it should reflect a personal commitment or a significant attachment to Australia consistent with Australia's interests and laws.

In view of these considerations it would be logical to confine the acquisition of citizenship by birth to children who are born in Australia to Australian citizens or legal permanent residents. A child born in Australia with neither parent in one or other of these categories would thus not have Australian citizenship. That approach, however logical, contains both humanitarian and administrative difficulties. It would mean that some children could be rendered stateless. Australia, both as a humane society and as a party to the International Convention on the Reduction of Statelessness, could not condone any approach that would lead to such an outcome. Also the practical administrative difficulties of such an approach would be that evidence of birth in Australia would no longer be satisfactory proof of one's being an Australian citizen. Further documentation showing the citizenship or resident status of one 's parents would be necessary and this would impose an unreasonable burden on those Australians who for a variety of reasons are called upon from time to time to provide evidence of their citizenship.

There is a compromise which would eliminate most of the anomalies while avoiding inconvenience to the Australian population at large. This would be to require that where a child was born in Australia to parents, neither of whom was an Australian citizen or legal permanent resident, Australian citizenship would be lost if the child left Australia within five years of birth and did not return to Australia for a total of 12 months in the five-year period following that departure. In this way children who are born in Australia to parents who subsequently secure permanent resident status and remain in this country, would be deemed to have been citizens from birth. At the same time, we would avoid automatically bestowing Australian citizenship on the significant number of children whose families have no plan to continue residence in this country and, in many cases, no wish to see Australian citizenship thrust onto their children simply because of an accident of birth.

A similar issue arises in regard to the acquisition of citizenship through descent. With increasing international travel, more and more Australians are spending periods overseas. It is therefore not surprising that substantial numbers of Australian citizens have children while abroad. Quite properly, most of these parents wish to see their children acquire citizenship of Australia and the consequent right to come back here and to exercise the rights and obligations of citizenship.

In a small minority of cases, citizenship is being passed down through generations by families who have severed their historical ties with Australia and have no intention of returning. If, as it should, citizenship implies a clear mutual commitment between Australia and its citizens, this situation is anomalous. One approach to eliminating this anomaly would be to confine to one generation the passing on of citizenship by descent to the overseas born children of Australian citizens. This would mean that an Australian who had left Australia and settled permanently overseas could pass on his citizenship without further ado to his overseas born children. But those children could not pass it on further to their offspring. While such a principle appears reasonable, it would produce some unfair consequences in some cases unless there are saving provisions governing it.

Such cases would include those families where several generations had travelled overseas and lived abroad in the service of their country so that despite each generation spending a substantial proportion of its time in Australia, several generations of children had actually been born abroad. We could overcome such anomalies by limiting transmission of citizenship by descent to just the first overseas born generation, except where an overseas born Australian parent had spent a period of his life back in Australia-say, three years or more-prior to applying to register his overseas born child as an Australian citizen.

I now wish to turn to an issue which I believe has been troubling many settlers in Australia and which may be contributing to lower numbers of applications for citizenship than might be expected. I referred earlier to 1,200,000 people being in that category. I refer to the oath and affirmation of Australian citizenship. The difficulties which many people have with the oath and affirmation stem from what appears to be a misunderstanding of the concept of Australian sovereignty. People who have grown up in Australia are usually quite familiar with the concept that Her Majesty the Queen while Head of State of the United Kingdom is- quite separately-the Australian Head of State. Some people, particularly new settlers, find the concept quite confusing. Citizens of the United Kingdom often question the need to swear allegiance to the Queen again on becoming an Australian citizen in view of the fact that they already owe their allegiance to Her Majesty albeit as the Head of State of the United Kingdom. Other settlers find difficulty in swearing their new allegiance to a figure whom they identify as being the Queen of the United Kingdom and contend that their allegiance should be to Australia. Of course, in contending that, they overlook the clear constitutional fact that Her Majesty is quite separately Queen of Australia. Additionally, the current wording of the renunciation has aroused criticism because of a misunderstanding over its meaning. The references it contains to renouncing all other allegiances is often regarded as meaning abandoning one's own cultural heritage when, in fact, this is not the case.

Any change of wording to the oath and affirmation is likely to lead to debate. One option would be a rephrasing giving primary emphasis to the responsibilities of the new citizenship to Australia while clarifying that allegiance to a foreign state or sovereign is only being renounced and not allegiance to cultural heritage. Australia is now the only country in the world to continue to use the concept of British subject status in preference to its own nationality. The United Kingdom itself has moved away from the use of the term 'British subject'. The British Nationality Act of 1981 no longer retains the imperial notion of a British subject. The term will be used to denote principally those people who remain British subjects only because they have no other citizenship. If Australia were to retain its present law, we would be bestowing British subject status on people who would not be considered British subjects even under the law of the United Kingdom. I am sure that no thoughtful Australian would advocate that.

Honourable members will recall that, in the previous parliamentary session, legislation was enacted which provides that, in future, the right to enrol as a Commonwealth elector and to nominate for election to the Commonwealth Parliament , will be restricted to Australian citizens; and that the requirement that British subjects be required to enrol and vote after six months residence in Australia be discontinued. Persons on the electoral rolls at the time the legislation is proclaimed will continue to be entitled to vote. The legislation will be proclaimed as soon as State governments pass similar legislation to enable a uniform, Australia-wide commencement date. As has been agreed before in this Parliament, Australian citizenship should be the basic qualification for voting and parliamentary office. In the light of the recent developments both in Australia and Britain, it is anomalous that the Australian Citizenship Act provides for a status of British subject for Australian purposes, including for the purpose of a range of Commonwealth and State Acts. While we all understand and respect the reasons for the origin and continuation of the term 'British subject', I am sure that the Parliament would agree that there is a strong case for removal of the term from Australian citizenship legislation. However, because of the widespread use of the term in other legislation, both Commonwealth and State, which depends on the Citizenship Act definition, removal of the concept from the Citizenship Act should be timed to ensure that no undue adverse implications arise for the operation of affected legislation.

The current Citizenship Act also contains a number of provisions which enabled British subjects to acquire also automatically, Australian citizenship in the past. These provisions were necessary in 1949 when the Citizenship Act came into force, creating the new status of Australian citizenship. They were always intended to be transitional provisions to enable automatic acquisition of Australian citizenship by British subjects who had a connection with Australia at the time when the Act came into force. They also deal with the question of loss and resumption of British subject status in the context of the transitional provisions. These provisions are now 33 years old. They are no longer required and their retention in the Act can no longer be justified. In removing them, however, provision should, of course, be made to protect the existing rights of citizenship and ensure that all persons who became or were deemed to be citizens under the provisions of previous Acts will continue to be citizens. I emphasise that with such changes there would be no adverse effect on British subjects now in Australia.

A final point in respect of the British subject provisions is that the existing Act provides that female British subjects ordinarily resident in Australia who give birth to a child out of wedlock outside Australia may register that child as an Australian citizen. The Act makes no such provision for non-British women, nor for men, who father a child out of wedlock when abroad. Accordingly, it discriminates against all migrant women who are not British and against all migrant men. I am advised that there have been only two such registrations since 1949 when the Act came into force. I believe that this archaic provision should be repealed.

It is also important to recognise that these proposals do not prejudice the interests of British settlers in Australia. On the contrary, they consolidate, on an equal basis, the rights of all groups, mindful of developments overseas and the significant changes in Australian society since the Citizenship Act was first introduced in 1949.

The principal requirements which applicants for citizenship must satisfy are the requirement to be of good character, adequate knowledge of English, residential requirements and a knowledge of the responsibilities and privileges of citizenship. Certain categories of applicants, such as the spouses of Australian citizens and the aged, are exempted or given concession in regard to some of these requirements. Good character is currently assessed on the basis of a clear criminal record and favourable security assessment although there is no specification of this in the existing Act. I believe that the Act should be amended to reflect the nature of the good character requirement. Additionally, there is a good case for arguing that persons who have been convicted of serious crimes-for instance, sentenced to a term of imprisonment of 12 months or more- should be ineligible for the grant of citizenship for a specified period, following release from prison while they prove that they have been successfully rehabilitated. This provision, including the relevant period could usefully be written into the Act.

The requirement that an applicant possess an adequate knowledge of English is a controversial issue but should not be so. The Government believes that a basic proficiency in English is necessary to fulfil the rights and responsibilities of citizenship. Included in these rights and responsibilities are jury service, the right to stand for elective office and the right to vote. It is surely incontestable that these rights can only be exercised and the responsibilities discharged when an effective knowledge of English is possessed.

It is evident that there are strong views in the community supporting the retention of English language as a requirement of citizenship. English is Australia's national language and therefore the essential language of communication in our multicultural society. It is the language of our parliamentary and judicial institutions. To eliminate the English language as a requirement would result in significant numbers of non-English speaking citizens who would not be able to understand the proceedings of parliament or consider the diverse arguments which often occur regarding national and political issues presented via the English language media. Were this otherwise it could foster the growth of a 'second class citizenship' whose members remained isolated from the general Australian community. If it is accepted that the English language must be maintained as a requirement for citizenship, the issue then becomes the level of proficiency required.

In the early stages of the review, consideration was given to using an independent assessment procedure, possibly administered through schools, whereby applicants would submit a statutory declaration endorsed by appropriate authorities to the effect that a requisite standard of English had been reached. To require such additional documentation would be an onerous burden on applicants. What is required is a minimum established standard, easily measured and tested, whereby those whose ability to speak English is in doubt, can be assessed in a simple way.

The Australian second language proficiency rating scale developed for the Adult Migrant Education Program offers a simple method of conducting such assessments. It would be a relatively simple matter to specify that a particular speaking and listening level will be a minimum requirement to be achieved. This level could well be the minimum proficiency level at which a person may operate as an individual, without day to day language support, in an English speaking community. By using the ASLPR, we would help to ensure a uniform minimum standard for all applicants.

Notwithstanding the importance of a knowledge of English, I do recognise that beyond a certain age many persons find it difficult if not impossible to learn a new language. An exemption from the language requirement is currently offered to persons 60 years of age and over. I believe that there should be provision for lowering the age of exemption to 55 years. In cases of hardship, for persons who have resided in Australia for 20 years or more and who, through time, have thus acquired a reasonable understanding of Australia and its institutions despite their lack of English, a further option would be to lower the minimum age for exemption to 50 years.

The residence requirement for citizenship reflects the view that the applicant should have spent sufficient time in Australia to develop an understanding of its institutions, parliamentary and legal systems, language, culture and traditions so that he or she can demonstrate a commitment to, and an association with, the nation. A period of three years has been considered as the minimum requirement for these purposes. That was an enactment of the previous Government and is one which the present Government supports. No country has a shorter residential requirement. Australia's requirement of three years' residence is quite generous in comparison with other countries. For example, the United Kingdom, the United States of America and Italy require applicants to have residence totalling at least five years prior to application and in Greece the period is eight years. The previous Government reduced the period from five years to three years in Australia and I would suggest that the three-year residence requirement be retained.

Related to the period of residence is the question of the nature of that residence. There are strong grounds for requiring that residence for citizenship eligibility purposes should be legal, permanent residence. At present any type of residence, even as a prohibited immigrant, can count towards citizenship under the Act. There is a need to revise our definition of residence in order to relate it more clearly to that period which Australian citizens themselves would believe to be necessary to qualify for citizenship. Further, the residential requirements under the current Act are ambiguous. The ambiguity centres on the interpretation of the legislation in regard to the 12-month period of continuous residence which is required prior to the grant of citizenship. The words ' continuous residence' have allowed subjectivity to enter into the interpretation of whether or not the requirement has been met. For example, it can be reasonably argued that it is not necessary for a person to have been continuously present in Australia in order to be considered to have continuously resided in Australia. There are strong reasons for that definition to be tightened up. I would favour that the term 'physically present' be written into the Act.

I appreciate that in these days of high mobility, especially where the applicant's occupation calls for frequent travel abroad, it would be unrealistic for legislation to stipulate that the whole 12 months previous to the grant of citizenship be physically spent in Australia. A possibility is for the legislation to specify that an aggregate period of three years would need to have been spent in Australia over a period of, say, five years, but including a period of 12 months in the two years preceding the grant of citizenship. This would provide both a degree of flexibility and an unambiguous statement of requirements.

Some people do not quite meet one or more of the requirements for citizenship although it is apparent that they will do so within a reasonable time. It has been of concern to me for some time that under the present Act the Minister is unable to defer decisions in such cases. Under the Act, as it is at present, I am required to reject applicants in this situation thereby requiring them to reapply and go through the normal procedure once again. It would be more reasonable from the applicant's viewpoint, and certainly more sensible administratively, to permit deferral of a decision when it is clear that outstanding requirements could be met with the passage of time.

Since 1930 Australia has continuously maintained the view that dual nationality should be kept to a minimum. There are international obligations on the Government to maintain this policy. Section 17 of the present Act provides that Australian citizenship is lost if a person, while outside Australia, acquires by some voluntary and formal act other than marriage, the nationality of another country. No substantial case exists for continuing to maintain a difference in whether or not citizenship may be lost for persons who acquire citizenship of another country either outside or inside Australia. Accordingly, a more consistent approach would be for legislation to provide that Australian citizenship is lost if another citizenship is acquired by some voluntary and formal act anywhere in the world, including within Australia. Such loss of citizenship, as at present, should be automatic. However, to cover those cases where citizenship of another country may have been acquired under duress or unwittingly, it is desirable to have a provision in the Act giving discretion to approve the resumption of Australian citizenship to former Australian citizens, in circumstances where they obtained their non-Australian citizenship under duress or unwittingly. The Government will be particularly interested in community views on these issues.

In recent months there has been some debate about the notion that Australian citizenship might be lost if persons are convicted of various offences committed after the grant of citizenship. Such proposals have been criticised as introducing a second class citizenship. It has been argued that, once having accepted someone for citizenship, Australia should not withdraw it unless there were some irregularity in the application, or in the evidence submitted in support of the application, prior to the grant of citizenship. Provisions such as exist in the United Kingdom legislation providing for deprivation of citizenship in the event of conviction within a period of five years from the grant of citizenship of an offence punishable by a term of imprisonment of not less than 12 months, appear to me to be alien to the philosophy of Australian citizenship. There is a case, however, for depriving a person of citizenship if he or she has committed a serious offence before the grant of citizenship even though the conviction occurs after the grant.

Deprivation of Australian citizenship under such a proposed amendment would not constitute an additional penalty to that imposed by a court on the conviction of the person concerned. The deprivation powers should be invoked only if an applicant has obtained citizenship by false pretences; in other words, where he has obtained something he was not entitled to. Deprivation is not automatic under any circumstances. The Minister must consider the full facts of the case and be satisfied that it would be in the public interest to deprive a person of citizenship before he orders deprivation.

The Government recognises the need for avenues of review for people who are affected by decisions of a final and binding nature which affect them. Accordingly, it is proposed that the Act, when amended, will confer jurisdiction on the Administrative Appeals Tribunal to review, on application, decisions to refuse the grant of citizenship, other than on security grounds for which separate review arrangements already exist, and decisions to deprive a person of citizenship. This would be an important new area of jurisdiction for the Administrative Appeals Tribunal. At this stage it is proposed that the powers of the Administrative Appeals Tribunal should be recommendatory, consistent with its existing powers in deportation matters. This would strike an appropriate balance between, on the one hand, the need for review of the exercise of ministerial discretion on individual cases and, on the other hand, the desirability of retaining effective ministerial control over this sensitive area . However, the majority of adverse decisions under the Citizenship Act are not of a permanent nature and in future can be expected to lead to deferral rather than rejection of applications.

Where conditions for the grant of citizenship cannot be met at a particular time, they can often be met subsequently. For example, the failure of an applicant to satisfy the requirement that he has an adequate knowledge of the English language, or that he has an adequate knowledge of the responsibilities and privileges of Australian citizenship, is often followed by a reassessment of his ability to meet those requirements at a subsequent interview. In the case of an inability to meet the residential requirements, a period of further residence will satisfy those requirements. It is not proposed that there be formal review by the Administrative Appeals Tribunal of deferred decisions. I would propose that decisions to defer applications under the Act will be subject to review, on application, by the Immigration Review Panel which I established earlier this year to provide for the review of a wide range of decisions within the Immigration and Ethnic Affairs portfolio. There will be further Government consideration of these matters following the current examination by the Administrative Review Council of the need for external review under the Migration Act and other legislation administered by the Minister for Immigration and Ethnic Affairs.

Another aspect of the Act requiring revision is the definition of 'responsible parent'. The Act currently provides that:

In this Act, unless the contrary appears-

''responsible parent'' in relation to a child, means the father of that child or where the father is dead or the mother has been given the custody of the child by order of a court or the child was born out of wedlock and resides with the mother, means the mother of that child.

This is clearly discriminatory and I suggest needs to be removed from the Act. I know that many members of this House share that view. Many women would be alarmed to know that the Act does not allow them as mothers the same rights as fathers in respect of their children's citizenship. I expect that the amended Act will have the term 'responsible parent' replaced simply by the term 'parent' thus placing the mother on an equal footing with the father. Another rigidity in the Act relates to amendment of citizenship certification. Once a citizenship certificate has been granted to an applicant no further certificates may be granted despite clerical errors or errors of fact that may be contained in the original certificate. This has caused embarrassment to a number of our new citizens but, despite this, endorsement of the correct details on the original certificate is the only course open at present. Obviously there is a clear need to rectify this in amending the Act.

Mr Deputy Speaker, I have addressed the main issues which need to be faced in the amendment of citizenship legislation and the context in which proposals have been developed. There are, in addition, a number of technical and other amendments which should be included in any Bill to amend this legislation. I seek leave to have a document incorporated in Hansard which itemises all of the suggested amendments for the information of the Parliament and of the public.

Leave granted.

The document read as follows-



1.-Citizenship by Birth

(a) The child of a temporary resident or prohibited immigrant should automatically lose citizenship if that child departs Australia before 5 years of age and does not resume residence (defined as an aggregate of 12 months physical presence) in Australia in the five years immediately following departure, provided that the parent has not become an Australian citizen or a permanent resident in the meantime, with the proviso that no child should lose citizenship if this would render that child a stateless person.

(b) A child born in Australia to a mother who is an Australian citizen or a permanent resident of Australia and a father who is entitled to diplomatic status in Australia is not an Australian by birth. Such a child should acquire citizenship at birth. This and other discrimination on grounds of sex and marital status should be removed from the Act.

2.-Citizenship by Descent-

Children born overseas should acquire Australian citizenship by descent by registration.

(a) if they are born to a parent who acquired Australian citizenship otherwise than by descent; or

(b) if the parent acquired Australian citizenship by descent, provided the parent has resided in Australia for a total of at least 3 years prior to lodging the application for registration.

(c) Registration of citizenship by descent to be effected within eighteen years of the child's birth. Otherwise, such children may only acquire citizenship by grant after meeting the residence and other requirements of the Act.

3.-Registration of Citizenship

(a) Section 11 should specify that citizenship by descent is acquired by registration of citizenship, not birth, at an Australian Consulate within a specified period of time. Registration of birth should be seen as separate from the acquisition of citizenship.

(b) A period of 2 years should be set as a transitional period in which those currently eligible over 18 years may be registered as citizens.

4.-Citizenship by Grant-Residence

(a) 3 years should be the residence eligibility period for citizenship.

(b) The Act should be changed to specify that the applicant must have been physically present in Australia for 12 months out of the 2 years immediately preceding the grant of citizenship and 3 years physical presence out of the 5 years immediately preceding the grant of citizenship.

(c) The Minister should have discretion to count towards residence eligibility for citizenship periods spent overseas or periods of residence in another country in the course of service of benefits to or furthering the interests of Australia.

(d) The Minister should have discretion to allow periods of residence before the 5 years period to be reckoned for the purposes of this section.

Type of Residence

(a) The current wording of section 38 should be amended by replacing the term ' hospital for the insane' by any period spent confined in an institution whilst declared criminally insane. Additionally, it should be specified that any periods as an escapee from such an institution shall not count towards residence eligibility for citizenship.

(b) Section 38 should be incorporated into section 14, which should also specify that the applicant must be a person whose continued presence in Australia is not subject to any limitation as to time imposed by law and that residence for the purpose of section 14 of the Act should commence from the time of issue of an entry permit, unrestricted as to time.

(c) In exceptional cases, including significant hardship and disadvantage, the Minister should have discretion to accept periods of legal residence on other than a permanent basis as counting towards residence eligibility for citizenship purposes.

Future Residence

Paragraph 14 (1) (h) should be amended to provide for the intention to reside or continue to reside or otherwise maintain a close and continuing association with Australia.


(a) The current provision that the applicant be of good character should remain , but a clause should be included in the legislation to the effect that anyone who has been convicted of an offence for which the sentence was 12 months or more imprisonment may not be considered for citizenship until the applicant has spent 3 years outside gaol not as an escapee or on a bond or parole.

(b) A new section should be included in the legislation to specify that the grant of citizenship will be deferred or rejected:

(i) where a person is under a probation order, on parole, under periodic detention, released on licence;

(ii) while a person is in prison, reform institution or in an institution while declared criminally insane OR while he is an escapee from any of these institutions;

(iii) while a person is on trial for, subject to or party to an appeal relating to a criminal offence, except where the sentence has been served.

(c) A new section should be added specifying that 'A person shall not be granted citizenship if, in the opinion of the Minister, to do so would be prejudicial to the security of Australia or contrary to public order in Australia'.

6.-Language Requirements-English is Australia's national language and should be retained as a citizenship requirement. Citizenship Regulations under the Act should include a definition of the English language level required to meet the ' adequate English standard'. This should be judged according to standards set by the Australian Second Language Proficiency Ratings. Level 1+ is considered the minimum desirable level for these purposes, i.e. able to satisfy all survival needs and limited social demands. Details of the standard are attached.


(a) Former Australians-Former citizens should be required to meet all statutory requirements other than the length of residence requirement. Rather than a total of 3 years, legislation should provide such persons must have 12 months' physical presence in Australia out of the 2 years immediately preceding grant of citizenship.

(b) Minors-Sub-section 14 (8) should be changed to include only people under the age of 18 years, as 18 years is now the age of majority under Australian law .

(c) Aged Persons

(i) the age limit should be reduced to 55 years and people 55 years and over should be exempted only from the English language requirement; and

(ii) in cases of hardship the Minister should be given discretion to waive the English language requirement for persons 50 or more if they have 20 years residence in Australia

(d) Mentally Handicapped-Sub-section 14 (2) should be amended to restrict its applicability only to those for whom it was originally intended, i.e. mentally handicapped persons.

8.-Oath of Allegiance

(a) The oath/affirmation should be re-worded.

(b) The Minister should be given the appropriate authority to administer the oath or affirmation of allegiance. Only people who are Australian citizens should have the authority to administer the oath/affirmation of allegiance.

9.-Loss and Reacquisition of Citizenship-under the loss of citizenship provisions:

(a) the words ''whilst outside Australia'' should be deleted from section 17; and

(b) the Minister should be given discretion to approve resumption of citizenship to former Australian citizens, notwithstanding their inability to meet requirements for grant of citizenship, in circumstances where they satisfy the Minister they obtained their non-Australian citizenship under duress or unwittingly.


(a) Legislation should provide for deprivation of citizenship if the applicant commits an offence before the grant of citizenship for which a conviction occurs after the grant of citizenship and the conviction results in a sentence of imprisonment of 12 months or more, with the proviso that no person should lose citizenship if this would render that person stateless.

(b) Existing deprivation provisions should remain, and

(c) Sub-section 50 (1) should stipulate that the concealment of a conviction which occurred at any time and in any country is an offence.

11.-Adoption-section 10 of the Citizenship Act should be amended to allow a child resident in and adopted in Australia by an Australian citizen to acquire Australian citizenship automatically upon granting of the adoption order by a court.

12.-Renunciation-Any Australian citizen of full age who wishes to renounce Australian citizenship should be permitted to do so, provided that person has a foreign citizenship or nationality at the time of registration of the renunciation and provided it is not in the national interest to refuse such a renunciation.

13.-Responsible Parent

(a) The definition of 'responsible parent' should be removed from the Act and where this term occurs in the Act it be replaced by the term parent.

(b) Section 23 should be amended to ensure that a child is not deprived of Australian citizenship if that child has one parent who remains an Australian citizen.

14.-Section 40-Section 40 which allows the Minister to grant or refuse an application for citizenship without assigning any reason should be repealed. Section 4 of the Administrative Decisions (Judicial Review) Act overrides all other legislation, this rendering Section 40 redundant.

15.-Section 39-Section 39 which allows the Minister to determine finally whether a person was ordinarily resident in Australia should be repealed. This Section is also overridden by Section 4 of the A.D. (J.R.) Act.

16.-Deferral of Decisions-A provision should be included in Section 14 to allow the Minister to defer a decision on an application for any period considered necessary for the applicant to be able to meet the necessary requirements.

17.-Renunciation-Sections 23A and 23B require the Secretary to register all declarations of resumption personally. Where these two section reads 'the Secretary shall' they should read an officer authorised by the Secretary shall.

18.-Gazettal-Sub-section 42 (e) of the Act which requires the publication of the names and addresses of persons who have been granted citizenship, or who have been deprived of citizenship, should be repealed. (Publication in the Commonwealth Gazette can be replaced by a computer printout or microfiche).

19.-Section 41-Section 41 should be corrected-where it refers to Section 16 it should refer to Section 15.

20.-Representations by Statutory Declaration-Sub-section 37 (1) should be repealed. This sub-section allows a person to make representations to the Minister in respect of a person who has applied for a certificate of Australian citizenship. The representations are to be supported by a statutory declaration. This provision is superfluous and is not currently used.

21.-Declaration of Intention to Apply-Sub-section 13 (1) should be repealed. This sub-section allows a person to make a declaration of intention to apply for the grant of Australian citizenship. Such declarations impose no obligation on the declarant to apply for Australian citizenship and are now obsolete.

22.-Certificates (a) The legislation and regulations should be amended to enable the Minister to issue a new correct certificate, including retrospectively.

(b) Section 15 should be amended to provide for the certificate to be issued either before or after the oath is taken.

23.-Name of the Department-Reference to the Department of Immigration should be amended to read Department of Immigration and Ethnic Affairs whenever the name appears in the Act.

24.-Sub-section 14 (3)-Sub-section 14 (3) should be re-drafted to exempt the category of people who have completed a period of National Service, at present unable to take advantage of this sub-section, from the requirements of paragraphs (c) and (d) of Sub-section 14 (1).

25.-Power of the Minister under the Act-A provision should be included in the Act to the effect that the Minister may exercise any of the powers or undertake any of the functions included in the Australian Citizenship Act.

26.-Registration of Deaths Overseas-Sub-section 53 (e) should be replaced to allow regulations to be made to cover the proposed new registration of citizenship procedures.

27.-Penalties-The penalties under the Act and the penalties imposed by Regulation, should be revised in line with penalties imposed in comparable legislation.

(To be determined at the time legislation is drafted).

28.-Definition of British subject (a) A decision be made ''in principle'' to repeal Section 7 which defines the status of all Commonwealth citizens as British subjects. No other country (including Britain) retains, or intends to retain, such a definition of British Subjects or to define its own citizens as British Subjects.

(b) Sections 8 and 9, which allow certain Irish citizens to claim British subject status, (but not Australian citizenship) should be repealed when Section 7 is repealed.

(c) Section 24, which extends the meaning of British subject to include people who, before 1949, had the rights of British Subjects in Australia but were not British Subjects, should be repealed when Section 7 is repealed.

29.-Expired provisions (a) Section 8A, which was automatically repealed on 1 December 1975, provided for citizens of Pakistan and of the Republic of South Africa to obtain British subject status. Because this section has no applicability now it is no longer necessary to retain it in the Act.

(b) Sub-sections 14 (5) and (6), are expired transitional provisions which permitted British subjects to be granted Australian citizenship without meeting the normal residential requirements of the Act. They ceased to be in operation on 1 June 1976 and should be repealed.

30.-Transitional provisions (a) Section 25, which specified transitional provisions for British subjects to automatically acquire Australian citizenship at the time the Act commenced in 1949, should be repealed and a new clause inserted protecting the rights to Australian citizenship of all persons who became or were deemed citizens under the provisions of this section. This will not affect the status of any person in Australia.

(b) Section 26, which specified transitional provisions for British subjects without any citizenship, was relevant in 1949 but as all Commonwealth countries now have their own citizenship provisions Section 26 is anachronistic and should be repealed.

(c) Sections 27 and 28 which deal with the loss of British subject status, and the consequential status of such persons in 1949 for the purposes of the Act should be repealed or changed when Section 25 is repealed or changed.

(d) Sections 29 and 30 which deal with the loss and resumption of British subject status before the commencement of the Act in 1949 should be repealed and a new clause inserted protecting the existing rights of citizenship in that all persons who became or were deemed citizens under these provisions shall continue to be citizens.

31.-Discriminatory provision-Paragraph 11 (1) (b) (ii) provides for a woman who is a British subject ordinarily resident in Australia, who has a child out of wedlock overseas, to register that child as an Australian citizen even though she (the mother) is not herself an Australian citizen. This provision which discriminates against residents of Australia who are not female British subjects should be repealed.



The ASLPR specifications relating to the abovementioned are set out below:

Speaking and Listening (Level 1+)

That level is selected because:

it represents the minimum proficiency level at which a person may operate as an individual without day to day language support in an English-speaking community;

it represents the first level (particularly in the case of speaking and listening) at which a person may exercise limited autonomy and flexibility in the use of English;

it is the first level at which persons may use English as a lingua franca with any real change of communicating;

it is the first level of language use beyond those which can only be used with hesitancy and error in simple, familiar, predictable, routine and commonplace circumstances and situations.

Below the 1+ level recommended for speaking and listening there is no autonomy of expression. While the subject can respond, for example, to simple and frequently used instructions in the work situation at level 1, he cannot cope with verbal number operations and has great difficulty in using a telephone or understanding radio or television.

Above level 1+ the social use of listening and speaking skills develop and inter alia persons are able to express feelings, ideas, relationships, etc. with growing precision.

Some key factors that illustrate level 1+ are listed below:


Can cope with less routine situations in shops, post office, bank (e.g. asking for a larger size, returning an unsatisfactory purchase).

Can explain some symptoms to a doctor but with limited precision.

Can initiate an enquiry and can ask for directions or advice.

In the work situation can communicate most routine needs not requiring special technical language and can communicate basic details on an unpredictable occurrence such as an accident.


Can understand in all situations relevant to survival needs but comprehension is still significantly assisted by face-to-face contact, careful articulation and slow rate of utterance. Misinterpretations are frequent and in less familiar situations may require repetition, paraphrase or explanation.

Can comprehend only isolated words or phrases in a conversation between native speakers and will fail to understand the subsumed cultural knowledge.

Mr MACPHEE —I thank the House. I hope that there will be an enlightened debate on these proposals in the community and that the debate will serve to focus attention anew on the very nature and meaning of Australian citizenship. I hope that people will forward their views to me so that they may be taken into account. The present review is a substantive attempt to affirm once more the importance of citizenship. Once we have reached general agreement on the question of citizenship, we have progressed significantly in achieving a better understanding of ourselves and of our multicultural society. Mr Deputy Speaker, thank you for the courtesies of the House and for leave to incorporate in Hansard that important summary of proposals.

Sitting suspended from 12.55 to 2 p.m.