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Australian Citizenship Amendment (Intercountry Adoption) Bill 2014

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2013-2014

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

AUSTRALIAN CITIZENSHIP  AMENDMENT (INTERCOUNTRY ADOPTION) BILL 2014

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

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

the Hon. Scott Morrison MP)

 

 



 

Australian Citizenship Amendment (Intercountry Adoption) Bill 2014

 

OUTLINE

                

The Australian Citizenship Amendment (Intercountry Adoption) Bill 2014 (the Bill) amends the Australian Citizenship Act 2007 (the Act) to allow for acquisition of Australian citizenship by a person adopted outside Australia by an Australian citizen in accordance with a bilateral arrangement between Australia and another country.

 

In particular, the Bill amends the Act to create an entitlement to citizenship, for persons adopted in accordance with a bilateral arrangement, which is the same as the entitlement currently provided to persons adopted in accordance with the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption . The statutory regime, set out in Subdivision AA of Division 2 of Part 2 of the Act, allows for the immediate grant of Australian citizenship following the completion of the adoption. This allows the adopted child to travel to Australia as an Australian citizen, and thereby removes the need for the child to obtain a passport of the home country and an adoption visa under the Migration Regulations 1994.

 

The bilateral arrangements to which the amendments will apply are identified in the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998 . The regulations currently apply to adoptions under bilateral arrangements with Ethiopia, Korea, and Taiwan.

 

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.

 

REGULATION IMPACT STATEMENT

 

The Office of Best Practice Regulation has advised that a regulation impact statement is not required (Advice Reference Number: 17010).

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations.  A copy of the Statement of Compatibility with Human Rights is at Attachment A .



AUSTRALIAN CITIZENSHIP AMENDMENT (INTERCOUNTRY ADOPTION) BILL 2014

 

NOTES ON INDIVIDUAL CLAUSES

 

Item 1             Short title

 

1.               This item inserts the short title by which the Act may be cited.

2.               Item 1 of the Bill provides that this Act may be cited as the Australian Citizenship Amendment (Intercountry Adoption) Act 2014 .

Item 2             Commencement

 

3.              Item 2 of the Bill provides that this Act will commence on the day on which this Act receives the Royal Assent.

Item 3             Schedule(s)

 

4.               Item 3 of the Bill provides that each Act 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.

5.               The purpose of this item 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

 

Australian Citizenship Act 2007

 

Item 1             Section 2A

 

6.               This item repeals the third paragraph of the topic Acquiring citizenship by application in the current simplified outline in section 2A of Part 1 of the Act, and substitutes a new paragraph. The new paragraph refers to applications for persons adopted in accordance with the Hague Convention on Intercountry Adoption or in accordance with a bilateral arrangement. This reflects the changes to Subdivision AA of Division 2 of Part 2 of the Act, made by items 2 to 7 below, which extend eligibility for citizenship to children adopted overseas in accordance with bilateral arrangements.

Item 2             Subdivision AA of Division 2 of Part 2 (heading)

 

7.               This item repeals the heading of Subdivision AA of Division 2 of Part 2 of the Act, and substitutes a new heading which provides:

Subdivision AA - Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement

8.               The new heading reflects the expanded scope of Subdivision AA which, as amended by items 3 to 7 below, extends eligibility for citizenship under that Subdivision to children adopted overseas in accordance with bilateral arrangements.

Item 3             Section 19B

 

9.               This item repeals the first paragraph of the current simplified outline of Subdivision AA of Division 2 of Part 2 of the Act, and substitutes a new paragraph.

10.           The first paragraph of the current simplified outline provides:

You may be eligible to become an Australian citizen under this Subdivision if you are adopted outside Australia in accordance with the Hague Convention on Intercountry Adoption by at least 1 Australian citizen.

11.           The new first paragraph of the simplified outline provides:

You may be eligible to become an Australian citizen under this Subdivision if you are adopted outside Australia by at least 1 Australian citizen in accordance with:

(a)     the Hague Convention on Intercountry Adoption; or

(b)    a bilateral arrangement

Item 4             Paragraph 19C(2)(a)

 

12.           This item inserts the words “or a prescribed overseas jurisdiction” after the words “Convention country” in paragraph 19C(2)(a) of Subdivision AA of Division 2 of Part 2 of the Act.

13.           Section 19C of the Act currently sets out the criteria for eligibility for citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption. The purpose of the amendment to paragraph 19C(2)(a) is to extend eligibility to persons adopted in accordance with bilateral arrangements. The term “prescribed overseas jurisdiction” is used because this is the terminology used in the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998 (the Bilateral Arrangements regulations) to identify the countries which are party to bilateral arrangements with Australia. The prescribed overseas jurisdictions currently listed in Schedule 1 of the Bilateral Arrangements regulations are the Federal Democratic Republic of Ethiopia, the Republic of Korea, and Taiwan. The amendment made by item 7 below makes it clear that “prescribed overseas jurisdiction” has the same meaning in the Act as it does in the Bilateral Arrangements regulations. This means that the eligibility for citizenship will apply to persons adopted under current bilateral arrangements and to persons adopted under bilateral arrangements entered into by Australia in the future. Eligibility will arise, subject to other statutory requirements being met, as soon as the relevant country is listed in the Bilateral Arrangements regulations as a prescribed overseas jurisdiction.

 

Item 5             Paragraph 19(2)(c)

 

14.           This item inserts the words “or the Bilateral Arrangements regulations, as applicable” after the words “Intercountry Adoption regulations” in paragraph 19C(2)(c) of Subdivision AA of Division 2 of Part 2 of the Act.

15.           Paragraph 19(2)(c) currently requires, as a condition of eligibility for citizenship under Subdivision AA of Division 2 of Part 2 of the Act, that the adoption is recognised and effective for the laws of the Commonwealth and each State and Territory, in accordance with the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (the Intercountry Adoption regulations). The amendment creates an equivalent criterion for persons adopted under a bilateral arrangement. The adoption must be recognised and effective for the laws of the Commonwealth and each State and Territory, in accordance with the Bilateral Arrangements regulations. Under regulation 5 of the Bilateral Arrangements regulations, an adoption is recognised and effective, for the laws of the Commonwealth and each State and Territory, on and after the date that the adoption takes effect in the prescribed overseas jurisdiction, provided that:

·          the adoption is of a child habitually resident in the prescribed overseas jurisdiction;

 

·          the adoption is by a person habitually resident in a State or Territory of Australia;

 

·          the competent authority of that State or Territory has agreed that the adoption may proceed;

 

·          an adoption compliance certificate is in force in relation to the adoption that is issued by a competent authority of the prescribed overseas jurisdiction and states that the adoption was carried out in accordance with the laws of the prescribed overseas jurisdiction; and

 

·          the adoption has the effect of ending the legal relationship between the child and each person who was, immediately before the adoption, the child’s parent.

Item 6             Subsection 19C(4) (definition of adoption compliance certificate )

 

16.           This item repeals the definition of “adoption compliance certificate” in subsection 19C(4) of Subdivision AA of Division 2 of Part 2 of the Act, and substitutes a new definition.

17.           “adoption compliance certificate” is currently defined in subsection 19C(4) of the Act as follows:

adoption compliance certificate has the same meaning as in the Intercountry Adoption regulations.

18.           The new definition provides that:

adoption compliance certificate :

(a)     for an adoption in accordance with the Hague Convention on Intercountry Adoption - has the same meaning as in the Intercountry Adoption regulations; and

(b)    for an adoption in accordance with a bilateral arrangement - has the same meaning as in the Bilateral Arrangements regulations.

19.           This item is necessary to include adoptions under bilateral arrangements within the scope of Subdivision AA of Division 2 of Part 2 of the Act because, although an adoption compliance certificate is in substance the same document for the Hague Convention and bilateral arrangements, there are technical differences in the definitions. Under regulation 3 of the Intercountry Adoption regulations, “adoption compliance certificate” means “a certificate issued in accordance with article 23 of the Convention”. Under paragraph 5(1)(d) of the Bilateral Arrangements regulations, “adoption compliance certificate” means a certificate that “is issued by a competent authority of the prescribed overseas jurisdiction and states that the adoption was carried out in accordance with the laws of the prescribed overseas jurisdiction”.

Item 7           Subsection 19C(4)

20.           This item inserts two new definitions in subsection 19C(4) of Subdivision AA of Division 2 of Part 2 of the Act to facilitate the application of Subdivision AA to adoptions under bilateral arrangements:

·            Bilateral Arrangements regulations is defined as meaning the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998 ; and

 

·            prescribed overseas jurisdiction is defined as having the same meaning as in the Bilateral Arrangements regulations.  



 

Item 8             Subsection 34(1) (heading)

 

21.           This item repeals the heading to subsection 34(1) of Division 3 of Part 2 of the Act, and substitutes a new heading. The new heading states: Citizenship by descent or for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement .

22.           Subsection 34(1) of the Act provides a power to the Minister to revoke citizenship obtained by descent or under Subdivision AA of Division 2 of Part 2 in cases where the citizenship was obtained by fraud and the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. Apart from the amendment to the heading, subsection 34(1) does not require amendment. The amendment of the heading is consequential to items 1 - 7 of this Schedule which extend Subdivision AA to include adoptions under bilateral arrangements.

Item 9             Application

 

23.           This item sets out the application provision for the Bill. It puts beyond any doubt that a person adopted in accordance with a bilateral arrangement may apply for citizenship under section 19C of the Act on or after the day the amendments commence, regardless of whether the adoption was finalised before or after the commencement of the amendments.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                  



ATTACHMENT A

 

 

Statement of Compatibility with Human Rights

 

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

 

Australian Citizenship Amendment (Intercountry Adoption) Bill 2014

 

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

declared in the international instruments listed in section 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 provisions in the Act to streamline access to citizenship for children adopted by Australian citizens through bilateral arrangements made by Australia with specific countries who are not parties to the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (Hague Convention). The bilateral arrangements to which the proposed amendments are directed are prescribed in the Family Law (Bilateral Arrangements - Intercountry Adoption) Regulations 1998 .  The proposed amendments will mean that the adopted children discussed above will no longer require a visa to enter Australia as they will instead be immediately eligible to apply for, and be granted, Australian citizenship once the adoption is finalised overseas.

 

The purpose of the amendments is to place those children in the same position as children adopted overseas by Australian citizens in accordance with the Hague Convention and represents a significant administrative benefit to adopted children and their families.

 

Human rights implications

 

The Department of Immigration and Border Protection has considered the amendments against the seven key international treaties. 

                                                                                       

The  amendments do not engage human rights as Australia does not generally owe obligations to persons outside its territory and/or jurisdiction. As the children to whom these amendments are relevant are located outside Australia’s territory and/or jurisdiction, Australia’s obligations under the seven core human rights treaties are not engaged. However, once these children come within Australia’s territory and/or jurisdiction it is acknowledged that some rights and freedoms articulated under the seven core international human rights treaties will be engaged.

 

Conclusion

 

The Bill is compatible with human rights as it does not raise any human rights issues.

 

The Hon. Scott Morrison, Minister for Immigration and Border Protection