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2002
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSTRALIAN CITIZENSHIP
LEGISLATION AMENDMENT BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the
Minister for Citizenship and Multicultural Affairs,
The
Hon. Gary Hardgrave MP)
AUSTRALIAN CITIZENSHIP LEGISLATION AMENDMENT BILL
2002
OUTLINE
1. The Australian Citizenship Legislation
Amendment Bill 2002 (“the Bill”) makes a number of amendments to the
Australian Citizenship Act 1948 (“the Citizenship Act”) as
part of the Government’s response to the Australian Citizenship
Council’s report “Australian Citizenship for a New
Century”.
2. The Australian Citizenship Council reported in
February 2000. The Government’s response, “Australian
Citizenship...a Common Bond”, was released in May 2001.
3. The
Government’s response is designed to encourage all Australians to value
their citizenship and to update and strengthen aspects of Australian citizenship
law. No changes are being made to the basic criteria for the grant of
Australian citizenship.
4. The key amendments in the Bill
will:
• repeal section 17 of the Citizenship Act so that adult
Australian citizens in future do not lose their Australian citizenship on
acquisition of another citizenship;
• extend the descent and resumption
provisions to give young people more opportunities to acquire Australian
citizenship;
• provide for children who acquire Australian citizenship
with their responsible parent, or at a later date, to be given their own
citizenship certificates; and
• strengthen aspects of the integrity of
the Australian citizenship process.
5. The
other amendments in the Bill include the insertion of a specific reference to
“people smuggling” offences in the existing provision in the
Citizenship Act which provides for the deprivation of Australian citizenship in
certain circumstances.
6. This amendment does not change the existing
policy settings for the deprivation of Australian citizenship under the
Citizenship Act. Rather it merely highlights that a person who has committed a
“people smuggling” offence before the grant of a certificate and has
been sentenced to imprisonment for at least 12 months may be deprived of
Australian citizenship.
FINANCIAL IMPACT
STATEMENT
7. These amendments will have minimal financial impact.
AUSTRALIAN CITIZENSHIP LEGISLATION AMENDMENT BILL
2002
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short
Title
1. The short title by which this Act may be cited is the
Australian Citizenship Legislation Amendment Act 2002.
Clause
2 Commencement
2. Subclause 2(1) contains a table setting out the
commencement information for the Act. The subclause also provides that each
provision of the Act specified in column 1 of the table commences, or is taken
to have commenced, on the day or at the time specified in column 2 of the table.
3. The effect of items 1 and 2 of the table is that the following
provisions commence on the day on which the Act receives the Royal
Assent:
• Sections 1, 2 and 3 of the Act; and
• Schedule
1 of the Act – which contains amendments relating to the repeal of section
17 of the Citizenship Act.
4. The effect of item 3 of the table is that
Schedule 2 to the Act commences on a single day to be fixed by Proclamation.
5. The note in subclause 2(1) makes it clear that the table only relates
to the provisions of the Act as originally passed by the Parliament and assented
to. The table will not be expanded to deal with provisions inserted into the
Act after it receives the Royal Assent.
6. Subclause 2(2) provides that
column 3 of the table in subclause 2(1) is for additional information that may
be included in any published version of the Act but which is not part of the
Act.
7. Subclause 2(3) provides that if a provision covered by item 3 of
the table does not commence within 6 months of this Act receiving the Royal
Assent, then it will commence on the first day after the end of that
period.
Clause 3 Schedule(s)
8. This clause
provides that each Act specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned. In
addition, any other item in a Schedule to this Act has effect according to its
terms.
Item 1 Section 17
9. This item repeals section 17 of the
Citizenship Act. The effect of that section has been that an Australian citizen
aged 18 years or over who does “any act or thing” in order to
acquire the nationality or citizenship of another country, ceases to be an
Australian citizen when that other citizenship is acquired.
10. The
repeal of section 17 ensures that Australian citizens aged 18 years or over will
no longer lose their Australian citizenship if they acquire the nationality or
citizenship of another country and as a consequence nor will their children lose
Australian citizenship under section 23.
Item 2 Paragraph
23(1)(a)
11. This item is a technical amendment consequential to the
repeal of section 17 by item 1 of this Schedule.
12. Section 23 deals
with the citizenship status of a child under the age of 18 years where his or
her responsible parent has lost (under sections 17 or 19) or renounced (under
section 18) Australian citizenship. This item omits a reference to section 17
contained in paragraph 23(1)(a) which is redundant given the repeal of that
section by item 1 of this Schedule.
Item 3 After subsection
23B(1)
13. This item inserts new subsection 23B(1A) into the
Citizenship Act as a consequence of the repeal of section 17 by item 1 of this
Schedule.
14. In certain circumstances, section 23B allows a person who
ceased to be an Australian citizen under section 23 to resume Australian
citizenship. A person (in particular, a child under the age of 18 years) ceases
to be an Australian citizen under section 23 if his or her responsible parent
lost (under sections 17 or 19), renounced (under section 18) or is deprived
(under section 21) of Australian citizenship and, if applicable, his or her
other parent is not an Australian citizen.
15. New subsection
23B(1A) clarifies that a person who meets the requirements of subsection 23B(1)
may still resume Australian citizenship where he or she lost that citizenship
because his or her responsible parent lost Australian citizenship under section
17. This will be the case despite the repeal of section 17 by item 1 of this
Schedule.
Item 4 Application of amendment - section 17 of the
Australian Citizenship Act 1948
16. This item ensures that the
repeal of section 17 of the Citizenship Act will benefit adult Australian
citizens who acquire the nationality or citizenship of another country after
this Act receives the Royal Assent irrespective of the timing of the “act
or thing” which led to that acquisition.
17. However, it will not
benefit those adult Australian citizens who lost their Australian citizenship
under section 17 by acquiring another nationality or citizenship before this Act
receives the Royal Assent.
SCHEDULE 2 – Other
amendments
18. This Schedule makes the following amendments to the Citizenship
Act:
• Extending the age limit from 18 years to 25 years for a
person, born outside Australia and whose parent was an Australian citizen at the
time of their birth, to register as an “Australian citizen by
descent” – items 2, 29, 31 and 36.
• Providing young
ex-Australian citizens with an adequate period after reaching their majority to
resume their Australian citizenship where it was renounced in order to retain
the nationality or citizenship of another country – items 27 and
35.
• Providing for children under 16 years who acquire Australian
citizenship with their responsible parent (or at a later date) to be given their
own citizenship certificates – items 6, 7, 8, 9, 18, 21, 22, 23, 38 and
39.
• Strengthening aspects of the integrity of the Australian
citizenship process by:
- requiring the Minister to be satisfied that
certain persons are of good character – items 3, 26, 28, 42 and 43;
- imposing a 10 year ban on the grant of a certificate of Australian
citizenship to a person who is a “serious repeat offender” in
relation to a sentence of imprisonment – items 11, 17 and
40;
- introducing a new power for the Minister to revoke, in certain
specified circumstances, the grant of a certificate of Australian citizenship
before conferral of citizenship – item 20 - and providing review
provisions – item 32;
- introducing a new power for the Minister to
defer conferral of Australian citizenship in certain circumstances – item
20; and
- clarifying that the prohibition on the grant of a certificate of
Australian citizenship in paragraphs 13(11)(d) and 13(11)(e) applies to a person
who has in certain specified circumstances been released from serving the
whole of a sentence of imprisonment – items 12, 13, 15 and
41.
• Exempting a person who has completed at least 6 months
full-time service as a member of an Australian reserve force from the residence
requirements in paragraphs 13(1)(d) and 13(1)(e) for grant of Australian
citizenship – items 1, 4 and 37.
• Inserting a note that
highlights that a person who has committed a “people smuggling”
offence before the grant of a certificate of Australian citizenship may, in
certain circumstances, be subject to the deprivation of Australian citizenship
under subsection 21(1) of the Citizenship Act – item 24.
• Omitting a transitional provision that is no longer used,
correcting drafting errors, providing transitional arrangements for regulations
made for the purposes of the Citizenship Act and amending the section heading
for section 10C – items 5, 10, 14, 16, 19, 25, 30, 33, 34 and 44 and the
note at the end of item 3.
Item 1 Subsection 5(1)
19. This item inserts a definition
of “Australian reserve force” into subsection 5(1) of the
Citizenship Act. The definition is based on the definition of the same term in
section 4 of the Defence Act 1903. The term is used in new subsection
13(3A) which is inserted into the Citizenship Act by item 4 of this
Schedule.
Item 2 Paragraph 10B(1)(a)
20. This item amends
paragraph 10B(1)(a) to extend the age limit from 18 years to 25 years for a
person, born outside Australia and whose parent was an Australian citizen at the
time of their birth, to register as an “Australian citizen by
descent”.
21. The amendment will ensure that young people have an
adequate period of time to decide for themselves whether or not they wish to
register for Australian citizenship by descent.
Item 3 After
subsection 10B(1)
22. This item inserts new subsection 10B(1A) into
the Citizenship Act.
23. Section 10B sets out the requirements for
obtaining Australian citizenship by descent. New subsection 10B(1A) provides
that a person aged 18 years or over, who seeks to be registered as an Australian
citizen by descent under section 10B, must also satisfy the Minister that he or
she is of good character.
24. The insertion of new subsection 10B(1A)
brings section 10B in line with section 10C for people aged 18 years or over.
Section 10C currently allows a limited group of persons aged 18 years or over to
register as Australian citizens by descent and requires that they be of good
character.
25. The note at the end of this item amends the heading
of section 10C of the Citizenship Act as a consequence of the amendment made to
section 10B by item 2 of this Schedule. The new heading for section 10C makes
it clear that the provision provides for citizenship by descent for a person
aged 18 years or over on 15 January 1992.
Item 4 After subsection
13(3)
26. This item inserts new subsection 13(3A) into the
Citizenship Act.
27. Subsection 13(1) sets out the requirements that
must be met by a person before the Minister may grant a certificate of the
Australian citizenship to the person. Paragraphs 13(1)(d) and 13(1)(e) contain
the residence requirements that an applicant for Australian citizenship needs to
satisfy.
28. New subsection 13(3A) provides an exemption from the
residence requirements in paragraphs 13(1)(d) and 13(1)(e) for a full-time
member of an Australian reserve force. It applies to a person who has completed
at least 6 months full-time service as a member of an Australian reserve force.
This exemption is in addition to the existing residence concession in subsection
13(3) for persons serving in the permanent forces of the Commonwealth.
29. Although Australian citizenship is now a requirement for service in
the reserve forces, this has not always been the case. There may be some people
who have spent substantial periods of time in the reserve forces who have not
yet acquired Australian citizenship and such people will benefit from new
subsection 13(3A).
Item 5 Subparagraph
13(4)(b)(iii)
30. This item repeals subparagraph 13(4)(b)(iii) of the
Citizenship Act as it is a transitional provision that is no longer used.
Item 6 After subsection 13(9A)
31. This item inserts new
subsections 13(9B) to 13(9E) into the Citizenship Act.
32. Currently,
under subsection 13(10) of the Citizenship Act, the Minister may include the
name of a child in a certificate of Australian citizenship, if at the time of
their responsible parent’s citizenship application the child was under 16
years. A child under 16 years may also be included in the responsible
parent’s certificate at a later date.
33. However, it is preferable
that in future children under 16 years be given their own individual certificate
of Australian citizenship.
34. Subsection 13(10) (repealed by item 7 of
this Schedule) is replaced with new subsections 13(9B) to 13(9E). The objective
of these new provisions is to ensure that children under the age of 16 years who
acquire Australian citizenship with their responsible parent (or at a later
date) can be provided with individual certificates of Australian Citizenship.
35. New subsection 13(9B) applies where an application for an individual
certificate of Australian citizenship by a child under 16 years is made at the
same time as his or her responsible parent’s application for citizenship.
It allows the Minister to provide an individual certificate of Australian
Citizenship to a child if:
• the child was under 16 years at the
time his or her responsible parent applied for Australian citizenship under
section 13; and
• the application for an individual certificate is set
out in the same document as his or her responsible parent’s citizenship
application.
36. New subsections 13(9C) and 13(9D) make it clear that
the same form may be approved, and used by applicants, for the purposes of an
application under both subsections 13(1) and 13(9B).
37. New subsection
13(9E) applies where an application for an individual certificate of Australian
citizenship for a child under 16 years is made by his or her responsible parent
after the responsible parent has lodged their application for citizenship. It
allows the Minister to provide an individual certificate of Australian
Citizenship to a child if:
• the child was under 16 years at the
time his or her responsible parent applied to include them in their certificate
of Australian citizenship; and
• his or her responsible parent is an
Australian citizen because of section 15.
Item 7 Subsection 13(10)
38. This item repeals subsection 13(10) of the Citizenship Act as a
consequence of the insertion of new subsections 13(9B) to 13(9E) into the Act by
item 6 of this Schedule.
Item 8 Subsection 13(11)
Item
9 Subsection 13(11)
39. These items make technical amendments to
subsection 13(11) of the Citizenship Act as a consequence of the repeal of
subsection 13(10) by item 7 and the insertion of new subsections 13(9B) and
13(9E) by item 6 of this Schedule.
Item 10 At the end of
paragraphs 13(11)(a), (b) and (c)
40. This item makes a technical
amendment to correct a drafting error in subsection 13(11) of the Citizenship
Act.
Item 11 After paragraph 13(11)(c)
41. This item
inserts new paragraph 13(11)(ca) into the Citizenship Act.
42. Subsection 13(11) prohibits the Minister from granting a certificate
of Australian citizenship to a person where certain circumstances exist. Most
of the prohibitions relate to the character of the citizenship
applicant.
43. New paragraph 13(11)(ca) provides a new prohibition on the
grant of a certificate of Australian citizenship where the relevant person has
been confined in an Australian prison. It imposes a 10 year ban on the grant of
a certificate of Australian citizenship to a person who is a “serious
repeat offender” in relation to a sentence of imprisonment.
44. A
definition of “serious repeat offender” for the purposes of new
paragraph 13(11)(ca) is inserted into the Citizenship Act by item 17 of this
Schedule.
45. The 10 year ban on citizenship runs from the end of any
period during which the “serious repeat offender” has been confined
in an Australian prison because of the imposition of a sentence of
imprisonment.
46. The rationale for new paragraph 13(11)(ca) is that
those who continue to offend, after having served a sentence of imprisonment of
at least 12 months, should be barred from Australian citizenship for a much
longer period than that provided for by existing paragraph
13(11)(c).
47. Under existing paragraph 13(11)(c) of the Citizenship Act,
a person sentenced to imprisonment for at least 12 months is subject to a 2 year
ban on the grant of a certificate of Australian citizenship after release from
prison subject to paragraph 13(11)(d).
48. However, if the person is
sentenced to another term of imprisonment of at least 12 months at some time
after ceasing to be confined in prison for a preceding sentence of imprisonment
of at least 12 months then new paragraph 13(11)(ca) will apply. As a result,
this “serious repeat offender” will be subject to a 10 year ban on
the grant of a certificate of Australian citizenship after release from prison
subject to paragraph 13(11)(d).
Item 12 Paragraph
13(11)(d)
Item 13 Paragraph 13(11)(d)
49. These items amend
paragraph 13(11)(d) of the Citizenship Act in order to correct an anomaly.
50. Currently, paragraph 13(11)(d) prohibits the grant of a certificate
of Australian citizenship for a certain specified period to a person who has
been released from serving a part of a sentence of imprisonment on parole
or upon licence to be at large. The prohibition does not apply to a person who
has been released on parole or upon licence to be at large from serving the
whole of a sentence of imprisonment.
51. The amendments make it
clear that the prohibition in paragraph 13(11)(d) applies to a person who has
been released from serving a part, or the whole, of a sentence of
imprisonment on parole or upon licence to be at large.
Item 14 At the
end of paragraph 13(11)(d)
52. This item makes a technical amendment
to correct a drafting error in subsection 13(11) of the Citizenship Act.
Item 15 Paragraph 13(11)(e)
53. This item amends paragraph
13(11)(e) of the Citizenship Act in order to correct an anomaly.
54. Currently, paragraph 13(11)(e) prohibits the grant of a certificate
of Australian citizenship for a certain specified period to a person who has
been released by a court from serving a part of a sentence of
imprisonment. The prohibition does not apply to a person who has been released
by a court from serving the whole of a sentence of imprisonment.
55. The amendments make it clear that the prohibition in paragraph
13(11)(e) applies to a person who is released by a court from serving a
part, or the whole, of a sentence of imprisonment.
Item
16 At the end of paragraph 13(11)(e)
56. This item makes a technical
amendment to correct a drafting error in subsection 13(11) of the Citizenship
Act.
Item 17 After subsection 13(11)
57. This item inserts
new subsection 13(11A) into the Citizenship Act.
58. New subsection
13(11A) provides a definition of “serious repeat offender” for the
purposes of new paragraph 13(11)(ca) which is inserted into the Citizenship Act
by item 11 of this Schedule.
59. New paragraph 13(11)(ca) provides a new
prohibition on the grant of a certificate of Australian citizenship where the
relevant person has been confined in an Australian prison. It imposes a 10 year
ban on the grant of a certificate of Australian citizenship to a person who is
“serious repeat offender” in relation to a sentence of
imprisonment.
60. Under new subsection 13(11A), a person is a
“serious repeat offender” in relation to a sentence of imprisonment
if:
• the person was confined in an Australian prison because of
the imposition of a “serious prison sentence” on the person;
and
• another “serious prison sentence” was imposed on the
person for an offence committed by the person at a time after he or she ceased
to be confined in prison for the imposition of the sentence referred to above.
61. “Serious prison sentence” is also defined in new
subsection 13(11A). It is a sentence of imprisonment for life or a sentence of
imprisonment for a period of not less than 12 months.
Item
18 Subsections 13(14) and (15)
62. This item repeals subsections
13(14) and 13(15) of the Citizenship Act as a consequence of the repeal of
subsection 13(10) by item 7 and the insertion of new subsections 13(9B) and
13(9E) by item 6 of this Schedule.
Item 19 Subsection
14A(2)
63. This item makes a technical amendment to subsection 14A(2)
of the Citizenship Act to correct a drafting error.
Item 20 After
section 14A
64. This item inserts new sections 14B and 14C into the
Citizenship Act.
65. The acquisition of Australian citizenship is a
two-stage process. The first stage is approval for the grant of a certificate
of Australian citizenship and the second stage is conferral of Australian
citizenship at a ceremony. At the second stage, applicants are required by
section 15 of the Citizenship Act to make a pledge of commitment and, upon
making the pledge, they become an Australian citizen.
66. Currently, the
Citizenship Act does not impose a time limit within which a person who has been
approved for the grant of a certificate of Australian citizenship must make the
pledge of commitment.
67. Sometimes there can be a considerable gap
between the time the person is approved for the grant of a certificate of
Australian citizenship and the time of actual conferral. During this period it
might be discovered that the person had never actually met, or no longer meets,
the requirements for the grant of a certificate of Australian citizenship and
therefore should not be entitled to proceed to conferral.
68. In other
cases, the person may not choose to make the pledge for a very long period after
approval for the grant of a certificate of Australian citizenship, or even not
to proceed to make the pledge at all, leaving an undesirable “open
ended” long term right to Australian citizenship.
69. New sections
14B and 14C provide the Minister with two new discretionary powers to address
these situations.
Section 14B Revocation of grant of certificate of
Australian citizenship before conferral of citizenship
70. New
section 14B provides the Minister with a discretionary power to revoke the grant
of a certificate of Australian citizenship where:
• that
certificate has been granted to a person after the commencement of new section
14B; and
• the person has not become an Australian citizen under
section 15.
71. There are two broad circumstances in which the grant of a
certificate of Australian citizenship may be revoked by the Minister. These are
set out in new subparagraphs 14B(1)(c)(i) and 14B(1)(c)(ii).
72. The new
power in subparagraph 14B(1)(c)(i) deals with the circumstances described in
paragraph 63 above. It requires an assumption to be made that the certificate
had not been granted and that the person has made a fresh application for the
certificate. If in relation to this fresh application the Minister would be
required to make a decision under section 13 of the Citizenship Act refusing the
application then the Minister may revoke the certificate that has been granted
to the person.
73. New subsection 14B(2) sets out two requirements for
the purposes of the application of subparagraph 14B(1)(c)(i) to a person to whom
a certificate of Australian citizenship has been granted as a result of an
application under subsection 13(1) of the Citizenship Act.
74. New
paragraph 14B(2)(a) provides that the residence requirements and concessions in
paragraphs 13(1)(d) and 13(1)(e) and subsection 13(4) of the Citizenship Act
apply as if the fresh citizenship application were made on the same date as the
original application. This ensures that the residence requirements are
correctly applied by the Minister when deciding whether or not to revoke the
grant of a certificate of Australian citizenship.
75. Under new
paragraph 14B(2)(b), the remaining provisions for the grant of Australian
citizenship under section 13 of the Citizenship Act apply as if the fresh
application had been made on the day before the day on which the Minister makes
a decision under subsection 14B(1) whether to revoke the grant of the
certificate. This ensures that the current circumstances of the citizenship
applicant are considered in deciding whether the person meets the requirements
for the grant of a certificate of Australian citizenship under section 13.
76. New subsection 14B(3) sets out two requirements for the purposes of
the application of subparagraph 14B(1)(c)(i) to a person to whom a certificate
of Australian citizenship has been granted as a result of an application under
subsection 13(9) of the Citizenship Act.
77. New paragraph 14B(3)(a)
provides that paragraph 13(9)(b) applies as if the fresh citizenship application
where made on the same date as the original application. This recognises that
paragraph 13(9)(b) currently applies to a citizenship applicant who applied for
Australian citizenship before attaining the age of 18 years.
78. Under
new paragraph 14B(3)(b), the remaining provisions for the grant of Australian
citizenship under section 13 of the Citizenship Act apply as if the fresh
application had been made on the day before the day on which the Minister makes
a decision under subsection 14B(1) whether to revoke the grant of the
certificate. This ensures that the current circumstances of the citizenship
applicant are considered in deciding whether the person meets the requirements
for the grant of a certificate of Australian citizenship under section 13.
79. The new power in subparagraph 14B(1)(c)(ii) deals with the
circumstances described in paragraph 64 above. The Minister may revoke the
grant of a certificate of Australian citizenship under subparagraph
14B(1)(c)(ii) if the person:
• has failed to make a pledge of
commitment within 12 months after being notified of the Minister’s
decision under section 13 of the Citizenship Act to grant the certificate;
and
• does not have an acceptable reason for this failure.
80. Under subsection 14B(4), a reason is an acceptable reason if,
and only if, the reason is declared by the Australian Citizenship
Regulations to be an acceptable reason for the purposes of subparagraph
14B(1)(c)(ii). For example, an acceptable reason may include the situation
where a person must travel overseas for an extended period to care for a
critically ill immediate relative.
81. Under new subsection 14B(5), if
the Minister decides to revoke the grant of a certificate of Australian
citizenship, he or she must give the person a written notice of that revocation.
This notice may be served personally, by post or by an electronic communication.
82. New subsection 14B(6) provides that if the Minister revokes the
grant of a certificate of Australian citizenship, the person concerned is taken
not to be a person to whom a certificate has been granted under Division 2 of
Part 3 of the Citizenship Act. This is the case whether or not a written notice
of the revocation has been given to the person under new subsection 14B(5).
83. New section 14C provides the Minister with a discretionary power to
defer the conferral of Australian citizenship on a person for a certain
specified period where:
• a certificate of Australian citizenship
has been granted to a person after the commencement of new section 14C;
and
• the person has not become an Australian citizen under
section 15.
84. This new provision is modelled, so far as is relevant, on
existing section 14A which allows for the deferral of the consideration of an
application for Australian citizenship made under section 13 of the Citizenship
Act before it has been approved.
85. There are two circumstances in
which the conferral of Australian citizenship may be deferred by the Minister.
These are set out in new subparagraphs 14C(1)(c)(i) and
14C(1)(c)(ii).
86. Under subparagraph 14C(1)(c)(i), the conferral of
Australian citizenship may be deferred if it appears to the Minister that a visa
held by the person may be cancelled under a provision of the Migration Act
1958. This applies whether or not the person has been given any notice to
that effect.
87. Under new subparagraph 14C(1)(c)(ii), the conferral of
Australian citizenship may be deferred if it appears to the Minister that the
person has been charged, or may be charged, with an offence under a law of the
Commonwealth, a State or a Territory.
88. The period for which
the conferral of Australian citizenship may be deferred by the Minister is set
by new subsection 14C(2). This provision provides that conferral must not be
deferred for a period that exceeds, or for periods that in total exceed, 12
months.
89. Under new subsection 14C(3), if the Minister decides to
defer the conferral of Australian citizenship and that person is in Australia,
the Minister must give that person a written notice setting out the decision.
This notice may be served personally, by post or by an electronic communication.
90. New subsection 14C(4) provides that if the Minister decides to defer
the conferral of Australian citizenship on a person for a particular period then
that person must not make a pledge of commitment under section 15 of the
Citizenship Act before the end of that period. This means that if a person
purported to make the pledge, such making of the pledge would be invalid and
would not result in the person becoming an Australian citizen.
Item
21 Subsection 15(1)
91. This item makes a technical amendment to
subsection 15(1) of the Citizenship Act as a consequence of the insertion of new
subsections 13(9B) and (9E) into the Act by item 6 of this Schedule.
Item 22 Subsection 15(4)
92. This item repeals subsection
15(4) as a consequence of the repeal of subsection 13(10) by item 7 and the
insertion of new subsections 13(9B) and (9E) by item 6 of this Schedule.
93. New subsections 15(6) and 15(7), which are inserted into the Act by
item 23 of this Schedule, replace subsection 15(4).
Item 23 At the
end of section 15
94. This item inserts new subsections 15(6) and
15(7) into the Citizenship Act to replace subsection 15(4) which is repealed by
item 22 of this Schedule.
95. The new subsections clarify when a person
to whom a certificate of Australian citizenship has been granted under new
subsection 13(9B) or 13(9E), becomes an Australian citizen.
96. New subsection 15(6) applies to a person to whom a
certificate has been granted under new subsection 13(9B) which is inserted into
the Citizenship Act by item 6 of this Schedule. This person becomes an
Australian citizen on and after:
• the day on which his or her
responsible parent, who is mentioned in new subsection 13(9B), becomes an
Australian citizen under section 15 of the Citizenship Act; or
• if the
certificate is granted after his or her responsible parent becomes an Australian
citizen under section 15 – the day on which the certificate is granted.
97. This ensures that a person granted a certificate under new
subsection 13(9B) does not become an Australian citizen prior to his or her
responsible parent.
98. New subsection 15(7) applies to a person to whom
a certificate has been granted under new subsection 13(9E) which is inserted
into the Citizenship Act by item 6 of this Schedule. This person becomes an
Australian citizen on and after the day on which the certificate is granted.
Item 24 At the end of subsection 21(1)
99. This item
inserts a note after subsection 21(1) of the Citizenship Act.
100. The
note highlights that a person who is convicted of a “people
smuggling” offence against section 232A, 233 or 233A of the Migration
Act 1958 and sentenced to imprisonment for at least 12 months may be
deprived of Australian citizenship under section 21 of the Citizenship Act where
the other requirements of subparagraph 21(1)(a)(ii) are met.
101. This
amendment does not change or in any way affect the existing power for the
deprivation of Australian citizenship under section 21 of the Citizenship Act.
Item 25 At the end paragraph 23AA(1)(e)
102. This item
makes a technical amendment to subsection 23AA of the Citizenship Act which is
consequential to the amendment made to the same provision by item 26 of this
Schedule.
Item 26 After paragraph 23AA(1)(e)
103. This
item inserts new paragraph 23AA(1)(f) into the Citizenship
Act.
104. Section 23AA allows a person to resume Australian citizenship
that was lost in certain circumstances. Currently, a person seeking to resume
Australian citizenship pursuant to this provision is not required to
satisfy any requirements as to his or her good character.
105. In order
to maintain the integrity of the Australian citizenship process, new paragraph
23AA(1)(f) will require a person seeking to resume Australian citizenship under
section 23AA to satisfy the Minister that he or she is a person of good
character.
Item 27 After section 23AA
106. This item
inserts new section 23AB into the Citizenship Act.
107. Under section 18
of the Citizenship Act, a person may renounce his or her Australian citizenship
subject to certain requirements.
108. There are circumstances where
young Australians choose to renounce Australian citizenship to retain another
nationality or citizenship without fully appreciating the long-term implications
for their contact with Australia.
109. Currently, the Act does not allow
such persons to resume Australian citizenship. However, the insertion of new
subsection 23AB into the Citizenship Act will change this. It will provide
young ex-Australian citizens with an adequate period after reaching their
majority to resume their Australian citizenship where it was renounced in order
to retain the nationality or citizenship of another country.
110. New
subsection 23AB(1) applies where:
• a person under the age of 25
years has ceased to be an Australian citizen under section 18 of the Act;
and
• he or she gives the Minister a written statement that complies
with new subsection 23AB(2) and a declaration in the prescribed form that the
person wishes to resume Australian citizenship.
111. The Minister may
register the declaration in the prescribed manner if satisfied
that:
• the matters contained in the statement are true;
• where the person has claimed that he or she would have suffered
hardship or detriment of an economic nature if he or she had not renounced
Australian citizenship – that the person’s circumstances were such
as to compel him or her to renounce their Australian citizenship; and
• that the person is of good character.
112. If the Minister
registers the declaration then the person making the declaration will again
become an Australian citizen on registration.
113. New subsection 23AB(2)
sets out the information that a written statement provided to the Minister under
new paragraph 23AB(1)(c) must contain. The required information mirrors (as far
as relevant) that which is currently required by section 23AA of the Citizenship
Act which allows a person to resume Australian citizenship lost under section
17.
114. The written statement must contain the following
information:
• the person renounced his or her Australian
citizenship in order to retain the citizenship of another country and that if he
or she did not do this then the person would have suffered significant hardship
or detriment;
• the person has been lawfully in Australia for a period
of, or for periods amounting to, at least 2 years;
• a statement
that:
- if the person is already residing in Australia – that the
person intends to continue to reside in Australia after he or she again becomes
an Australian citizen; or
- if the person is not residing in Australia
– that the person intends to begin to reside in Australia after again
becoming an Australia citizen and within 3 years of making the statement;
and
• the person has maintained a close and continuing association with
Australia.
115. New subsection 23AB(3) ensures that a child who is under
18 years of age and who ceased to be an Australian citizen because his or her
responsible parent renounced their Australian citizenship under section 18 can
also resume Australian citizenship where that parent has made a declaration
under new paragraph 23AB(1)(d).
116. The Minister is provided with a
discretion to include the name of such a child in a declaration registered under
new subsection 23AB(1). This may done either at the time of registering the
declaration or by later amending the declaration. The child again becomes an
Australian citizen on the inclusion of his or her name in the declaration.
Item 28 Subsection 23B(2)
117. This item repeals and
substitutes subsection 23B(2) of the Citizenship Act.
118. Section 23B
allows a person to resume Australian citizenship lost under section 23 of the
Citizenship Act. Currently, a person seeking to resume Australian citizenship
pursuant to this provision is not required to satisfy any requirements as
to his or her good character.
119. In order to maintain the integrity of
the Australian citizenship process, new paragraph 23B(2)(b) will require a
person seeking to resume Australian citizenship under section 23B to satisfy the
Minister that he or she is a person of good character.
Item
29 Subparagraph 23D(3)(a)(i)
120. This item makes an amendment to
subparagraph 23D(3)(a)(i) of the Citizenship Act as a consequence of the
amendment made to paragraph 10B(1)(a) by item 2 of this Schedule.
Item
30 Subsection 52A(1)
121. This item makes a technical amendment to
subsection 52A(1) of the Citizenship Act.
Item 31 Before paragraph
52A(1)(aaa)
122. This item inserts new paragraph 52A(1)(aaaa) into
the Citizenship Act.
123. This new paragraph provides that a decision
of the Minister under new subsection 10B(1A) that he or she is not satisfied
that the person is of good character is reviewable by the Administrative Appeals
Tribunal (“the AAT”).
124. New subsection 10B(1A) is
inserted into the Citizenship Act by item 3 of this Schedule.
Item
32 After paragraph 52A(1)(a)
125. This item inserts new paragraph
52A(1)(ab) into the Citizenship Act.
126. This new paragraph provides
that a decision of the Minister under new section 14B revoking the grant of a
certificate of Australian citizenship is reviewable by the AAT. New subsection
14B is inserted into the Citizenship Act by item 20 of this
Schedule.
127. Decisions made under new section 14C, which is also
inserted into the Act by item 20 of this Schedule, are not reviewable by the
AAT. New subsection 14C allows the Minister to defer the conferral of
Australian citizenship in certain circumstances.
128. The absence of
review rights for decisions made under new section 14C is consistent with the
existing provision in relation to decisions made under section 14A to defer the
consideration of an application for Australian citizenship.
Item
33 Paragraph 52A(1)(e)
Item 34 Paragraph
52A(1)(e)
129. These items make technical amendments to correct
drafting errors in paragraph 52A(1)(e) of the Citizenship Act.
Item
35 After paragraph 52A(1)(e)
130. This item inserts new paragraph
52A(1)(ea) into the Citizenship Act.
131. This new paragraph provides
that the following decisions of the Minister are reviewable by the
AAT:
• a decision under new subsection 23AB(1) refusing to register
a declaration; and
• a decision under new subsection 23AB(3) refusing
to include the name of a child in a declaration.
132. New subsection
23AB is inserted into the Citizenship Act by item 27 of this
Schedule.
Part 2 – Application of amendments etc.
Item 36 Application of amendments – sections 10B and 23D of the
Australian Citizenship Act 1948
133. This item deals with the
application of the amendments made by items 2, 3 and 29 of this Schedule to
sections 10B and 23D of the Citizenship Act.
134. The amendments to
section 10B relate to the requirements for Australian citizenship by descent.
The amendments to section 23D are technical and consequential to the amendments
made to section 10B.
135. These amendments apply to an application for
the registration of the name of a person under section 10B that was made after
the commencement of this item.
Item 37 Application of amendment
– subsection 13(3A) of the Australian Citizenship Act
1948
136. This item deals with the application of new subsection
13(3A), which is inserted into the Citizenship Act by item 4 of this
Schedule.
137. New subsection 13(3A) provides an exemption from the
residence requirements in paragraphs 13(1)(d) and 13(1)(e) for a person who has
completed full-time service as a member of an Australian reserve force for a
period totalling 6 months.
138. It applies in relation to an application
for the grant of a certificate of Australian citizenship that was made after the
commencement of this item.
Item 38 Application of amendments –
inclusion of name of child in a certificate of Australian
citizenship
139. This item deals with the application of the
amendments made by items 7, 9, 18 and 22 of this Schedule. These amendments are
consequential to the repeal of subsection 13(10) by item 7 and the insertion of
new subsections 13(9B) and 13(9E) into the Citizenship Act by item 6 of this
Schedule.
140. Subitem 38(1) applies to a decision that has been made
before the commencement of the amendments in this Schedule to include the
name of a child in a certificate of Australian citizenship under subsection
13(10) of the Citizenship Act.
141. This is the case where the child
was included in their responsible parent’s application for Australian
citizenship or where their responsible parent has already been granted a
certificate of Australian citizenship and later applies to include their child.
142. Subitem 38(2) provides that despite the amendments made by items 7,
9, 18 and 22, the Citizenship Act continues to apply, in relation to the
inclusion of the name of the child in a certificate, as if those amendments had
not been made.
143. For decisions made before the commencement of
this item, a child under 16 years will be included in the responsible
parent’s certificate of Australian citizenship as provided for by
subsection 13(10) prior to its repeal by item 7 of this Schedule.
Item 39 Transitional – inclusion of name of child in a
certificate of Australian citizenship
144. This item allows for
certain children to be given their own individual certificate of Australian
citizenship, notwithstanding that their responsible parent had originally
applied for the inclusion of the child’s name in their certificate under
subsection 13(10) of the Citizenship Act before the commencement of this
item.
145. This is achieved by defining certain applications under
subsection 13(10) as “pending applications” and providing for such
applications to be treated as if they were applications under new subsection
13(9B) or 13(9E) after the commencement of this item.
146. Subitem 39(1)
defines a “pending application” as:
• an application
made under subsection 13(10), and not withdrawn, before the commencement of this
item; and
• an application which has not been decided before the
commencement of this item.
147. Subitem 39(2) applies to a
“pending application” if a certificate of Australian citizenship has
not been granted and a child is included in their responsible
parent’s application for Australian citizenship.
148. In this
circumstance, the child will be granted his or her own individual certificate as
if the “pending application” were an application under new
subsection 13(9B), which is inserted into the Citizenship Act by item 6 of this
Schedule.
149. Subitem 39(3) applies to a “pending
application” if a certificate of Australian citizenship has already been
granted to the responsible parent before the commencement of the amendments in
this Schedule and an application is lodged before the commencement of this item
to include the child in the responsible parent’s certificate of Australian
citizenship.
150. In this circumstance, the child will be granted his
or her own individual certificate as if the “pending application”
were an application under new subsection 13(9E), which is also inserted into the
Citizenship Act by item 6 of this Schedule.
Item 40 Application of
amendment – paragraph 13(11)(ca) of the Australian Citizenship Act
1948
151. This item deals with the application of new paragraph
13(11)(ca) which is inserted into the Citizenship Act by item 11 of this
Schedule.
152. This new provision imposes a 10 year ban on the grant of
a certificate of Australian citizenship to a person who is a “serious
repeat offender” (as defined by new subsection 13(11A)) in relation to a
sentence of imprisonment.
153. New paragraph 13(11)(ca) applies to an
application for the grant of a certificate of Australian citizenship that was
made after the commencement of this item.
Item 41 Application of
amendments – paragraphs 13(11)(d) and (e) of the Australian Citizenship
Act 1948
154. This item deals with the application of the
amendments made by items 12, 13, 14, 15 and 16 of this Schedule to paragraphs
13(11)(d) and 13(11)(e) of the Citizenship Act.
155. The amendments make
it clear that the prohibition in paragraphs 13(11)(d) and 13(11)(e) applies to a
person who has in certain specified circumstances been released from serving a
part, or the whole, of a sentence of imprisonment. They also make
technical amendments to correct drafting errors in subsection 13(11).
156. These amendments to paragraphs 13(11)(d) and 13(11)(e) apply to an
application for the grant of a certificate of Australian citizenship that was
made after the commencement of this item.
Item 42 Application of
amendments – section 23AA of the Australian Citizenship Act
1948
157. This item deals with the application of the amendments
made by items 25 and 26 of this Schedule to section 23AA of the Citizenship Act.
158. The amendments insert new paragraph 23AA(1)(f) into the Citizenship
Act which requires a person seeking to resume Australian citizenship under
section 23AA to satisfy the Minister that he or she is a person of good
character. They also make a consequential amendment to section 23AA.
159. These amendments to section 23AA apply to the registration of a
declaration given to the Minister under paragraph 23AA(1)(c) after the
commencement of this item.
Item 43 Application of amendment –
section 23B of the Australian Citizenship Act 1948
160. This
item deals with the application of the amendment made by item 28 of this
Schedule to section 23B of the Citizenship Act.
161. The amendment
inserts new paragraph 23B(2)(b) into the Citizenship Act which requires a person
seeking to resume Australian citizenship under section 23B to satisfy the
Minister that he or she is a person of good character.
162. This
amendment to section 23B applies to the registration of a declaration given
under subsection 23B(1) to the Secretary, or to a person authorised by the
Secretary, after the commencement of this item.
Item 44 Transitional
– subsection 23B(2) of the Australian Citizenship Act
1948
163. This item applies to regulations made for the purposes
of subsection 23B(2) of the Citizenship Act that were in force immediately
before the commencement of this item.
164. Subitem 44(2) sets out
the transitional arrangements for these regulations after the commencement of
this item. It ensures that the regulations have effect as if they had been made
for the purposes of subsection 23B(2) of the Citizenship Act as amended by item
28 of this Schedule.
165. The effect of subitem 44(2) is that the
regulations that currently exist for the purposes of subsection 23B(2) do not
have to be re-made as a consequence of the amendment made by item 28 of this
Schedule.