Bills Digest no. 73 2005–06
Australian Citizenship (Transitionals and
Consequentials) Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Australian Citizenship
(Transitionals and Consequentials) Bill 2005
Date Introduced: 9 November 2005
House: House of
Representatives
Portfolio: Citizenship and Multicultural Affairs
Commencement:
Sections 1 and 2 of the Australian Citizenship Act 2005 commence
on the day the Act receives Royal Assent. Sections 3 54 and
Schedule 1 commence on a day to be fixed by Proclamation.
Schedules 1 3 of the Australian Citizenship (Transitionals and
Consequentials) Act 2005 commence on the same day as sections 3 54
of the Australian Citizenship Act 2005.
The Australian Citizen Bill 2005 (the Citizenship Bill) replaces
the Australian Citizenship Act 1948 (the 1948 Act). The
Australian Citizenship (Transitionals and Consequentials) Bill 2005
(the Transitionals Bill) puts in place the necessary transitional
and consequential amendments necessary for the introduction of the
Citizenship Bill.
The 1948 Act, the Australian Citizenship Act 1948
originally titled the Nationality and Citizenship Act 1948
was proclaimed to commence operation from 26 January 1949. The
introduction of the 1948 Act took place in the context of
establishing Australian citizenship for the first time, while
maintaining the status of British subject for Australians:
The bill is not designed to make an Australian any
less a British subject, but to help him express his pride in
citizenship of this great country. To say that one is an Australian
is, of course, to indicate beyond all doubt that one is British;
but to claim to be of the British race does not make it clear that
one is an Australian. The time has come for Australia and the other
dominions to recognize officially and legally their maturity as
members of the British Commonwealth by the passage of separate
citizenship laws. Therefore, it gives me great pleasure to
introduce this bill that will enable Australia to proclaim its own
national citizenship and establish the duties and responsibilities
as well as the rights and privileges that are inherent in
it.(1)
Before 1948, naturalisation had been regulated successively by
the Naturalization Act 1903 1920 and the Nationality
Act 1920.
The concepts of Australian nationality and citizenship have
greatly evolved over the last 57 years, and the 1948 Act has been
amended 36 times. Some of the major changes have been:
1955: procedures were streamlined (for example, no
more advertising in newspapers of intention to apply for
naturalisation), and the Act was amended to refer to husbands of
Australian citizens as well as wives
1969: the residence requirement for aliens who
could read and write English was reduced from five to three years,
and the Act was retitled the Citizenship Act 1948
1973: the residency requirement was set at two
years for both aliens and British subjects; British subjects were
required to attend citizenship ceremonies; the Act was retitled the
Australian Citizenship Act 1948; a reference to the Queen
of Australia was added to the oath and affirmation
1984: all forms of discrimination on the basis of
sex and marital status were removed; the residence requirement was
reduced from three to two years; Australians became Australian
citizens only, and ceased to be British subjects; the term spouse
replaced husband/wife; the registration of Australian citizenship
by descent was limited to persons under 18 as from 22 November
1986
1986: the requirement to renounce other allegiance
was removed
1993: a preamble was added to the Act, reference
to the monarch in the oath and affirmation of allegiance was
deleted, and a new oath/affirmation pledging my loyalty to
Australia and its people was added
2002: Australians were permitted to obtain foreign
citizenship without losing Australian citizenship; the age limit
for persons born overseas to Australian parents to register as
Australian citizens was raised from 18 to 25.(2)
On 7 July 2004, the Hon. Gary Hardgrave, MP, then Minister for
Citizenship and Multicultural Affairs, gave a speech to the Sydney
Institute in which he outlined in detail changes that the
government would be introducing to the 1948 Act.(3)
The Prime Minister, Mr Howard, announcing stronger terrorism
laws on 8 September 2005, stated that the waiting period for
citizenship would be extended from two to three
years.(4)
The forthcoming new Act was announced in a speech to the
National Press Club on 14 September 2005.(5)
There is long-running, bi-partisan support for making the 1948
Act more accessible and easily understood by those who are already
Australian citizens and those who aspire to be citizens.
In 1993 and 1994, the Joint Standing Committee on Migration,
under the chairmanship of Senator Jim McKiernan, conducted an
inquiry into the 1948 Act.(6) The Committee looked at
many issues addressed by this legislation, including the
appropriateness of the discretionary provisions for the granting of
Australian citizenship, dual citizenship, the acquisition of
citizenship by overseas-born children of Australian citizens, and
the appropriateness of the provisions of the 1948 Act in relation
to deferral and deprivation of citizenship. The Committee reported
that many people making submissions said that, in their view, the
1948 Act was cumbersome and dated.(7) Among the
Committee s recommendations was that the 1948 Act be redrafted
using simple language and be recast in a modern drafting
style.(8)
The Government response to the Committee s report supported the
redrafting of the 1948 Act, and stated that the government had
committed funds in the 1995 96 Budget for the Department of
Immigration and Ethnic Affairs to oversee the review and redrafting
of the citizenship legislation over a four-year period, so that
fully redrafted legislation could be in place for the
50th Anniversary of Australian citizenship in
1999.(9) This timetable was not met, following the
change of government on 2 March 1996.
In August 1998, the Coalition government established the
Australian Citizenship Council as an independent body to advise the
Minister for Immigration and Multicultural Affairs on Australian
citizenship matters that were referred to it by the government. The
Minister asked the Australian Citizenship Council to prepare a
report on contemporary issues in Australian citizenship policy and
law, and this was presented to the government in February
2000.(10) Chapter 6 of the report discussed ways of
refining the structure of the 1948 Act. The Council considered how
the Act could be tidied up to make it more readily understandable,
and whether there were ways to make it more
accessible.(11) The Council recommended retaining
unchanged the current preamble to the Citizenship
Act,(12) and this recommendation has been followed in
this rewrite of the legislation.
The proposed redrafting of the 1948 Act also retains the
principles underlying the original legislation. Since the Bill was
introduced into Parliament on 9 November 2005, the main discussion
in the media has concerned the role of ASIO in assessing whether or
not a person applying for Australian citizenship is a direct or
indirect risk to our security. Greens Senator Kerry Nettle is
reported as saying that this provision effectively gives ASIO the
power to decide who can and can t become a citizen .(13)
The president of the NSW Council of Civil Liberties, Cameron
Murphy, is also reported as saying that ASIO assessments were
virtually impossible to challenge because of the lack of
information made available to the subject and their legal team
.(14)
There a number of ways Australian citizens can lose their
citizenship under the 1948 Act. The most common ways are
renunciation (section 18), and before 2002, the dual citizen
provision (former section 17).(15) Provided certain
conditions are met, the 1948 Act also currently provides for the
resumption of citizenship lost under these provisions. Notably,
these conditions include certain residency requirements, and in the
case of resumption of citizenship lost via renunciation, the
persons must be under 25 years of age. Much of the background to
these provisions is covered in Chapter 5 of the Senate Legal and
Constitutional Committee s report
They still call Australia home: Inquiry into Australian
expatriates.(16)
The Citizenship Bill makes it considerably easier to resume
Australian citizenship, by amending or deleting many of the
relatively restrictive conditions in the 1948 Act. The specifics
are covered in the main provisions section of this Digest, but the
main requirement for most persons seeking to resume citizenship
lost under section 18 or former section 17 is that the responsible
Minister is satisfied that they are of good character.
Numerous arguments for the easing of the conditions regarding
resumption were contained in evidence given to the Senate Committee
s Inquiry into Australian expatriates mentioned above. In
particular, a large number of submissions concerned the now adult
children born in Australia to parents who emigrated from Malta,
mainly during the post-1945 period, but accompanied their parents
when the latter returned back to Malta. As they were born in
Australia, under the Australian citizenship laws, these children
became Australian citizens. As children of Maltese-born parents,
they also were automatically deemed to be Maltese citizens. Some of
the parents decide to return to Malta, taking their children with
them. Before 2000, Maltese law required such persons to renounce
any foreign citizenship by the time they were 19 if they were to
retain their Maltese citizenship. Maltese citizenship was virtually
essential for the educational, social welfare and other economic
benefits it offered, and so most of these now young adults did
renounce their Australian citizenship. Evidence of the experience
of these persons, and the difficulties facing those who attempted
to resume their Australian citizenship, was included in the Senate
report:
one example is the submission from Ms Ann Marie
Galea, who stated that:
I was born in Wentworthville in Australia on the
24th July 1971. My father and mother migrated to
Australia from Malta in 1964. When I was only 5 years ... in 1976
my family moved back to Malta. Under Maltese citizenship law I was
required to decide between Maltese and Australian citizenship
between my 18th and 19th birthdays ... In the
circumstances, opting for the Maltese citizenship was essential to
continue with my studies free of charge, and allowing me to
purchase my property. I was extremely unhappy forfeiting my
Australian citizenship as I was born in Australia and I consider
myself as an Australian . I still maintain close ties with
Australia.
5.50 In 2000, the Maltese Government accepted the
concept of dual citizenship and no longer requires the renunciation
of Australian citizenship before the age of 19 years in order to
keep the Maltese citizenship . However, the Committee heard that
many Maltese people who renounced their Australian citizenship have
faced considerable barriers to regaining Australian citizenship
under the current provisions of the Citizenship Act.
5.51 Submissions observed that these Maltese
citizens had been unable to resume citizenship under section 23AA
of the Citizenship Act. This was because they were deemed to have
retained their right to Maltese citizenship rather than
having acquired a foreign citizenship. Several submissions
suggested that this was discriminatory when compared with people
who had lost their citizenship under section 17. For example, the
Malta Cross Group pointed out that:
91% of Australian-born citizens who acquired
foreign citizenship have been successful in resuming their
Australian Citizenship under Section 23AA, yet not one Maltese (who
renounced), having applied under the same Section, has ever been
accepted to resume their Australian birth-right, despite having the
same compelling reasons required under this section
5.52 The Malta Cross Group continued:
So here you have the anomalous situation whereby
the rights of Australian-born citizens are split into two
categories, one group whose application to resume is accepted and
the other group whose application is rejected. It is indeed even
more anomalous when you think that those Australian-born Citizens,
undoubtedly of a more mature age, who freely chose to acquire the
citizenship of another country can apply to resume their
birth-right under Section 23AA but those Maltese who had no choice,
cannot!
5.53 Several submissions highlighted that many of
these Australian-born Maltese are also unable to resume Australian
citizenship under section 23AB of the Citizenship Act, because that
section contains an age limit of 25 years. These submissions
pointed out that many affected Maltese are now older than 25 years,
and have therefore exceeded this limit. As the Malta Cross Group
remarked:
From within a single family you now find siblings
who are both under and over the imposed age limit. This means that
some are eligible to return to Australia while others are not. This
discriminatory amendment gives rise to family isolation, discord
and splits family unity.
5.54 Submissions also noted that the requirement
to state an intention to return to Australia to live within three
years is a further barrier to resuming citizenship renounced under
section 18.
5.55 However, the proposed changes to the
Citizenship Act, announced during the Committee s inquiry, would
amend the resumption provisions for citizenship renounced under
section 18.(17)
These changes mean that, in the case of the children of the
Maltese immigrants who returned to Malta with their parents and
subsequently renounced their Australian citizenship when they
turned 19, they will be able to apply to resume their Australian
citizenship even if they are 25 years or over and are of good
character.
Evidence given to the Senate Inquiry into Australian Expatriates
also raised the issue of the children born after their parents
renounced their Australian citizenship:
there were concerns that the proposed changes
would not include the children born to individuals after they
renounced their Australian citizenship under section 18 of the
Citizenship Act. For example, Ms Anne MacGregor from the [Southern
Cross Group] argued:
the Minister s proposed changes do not currently
include the children born to individuals after they were forced to
renounce their Australian citizenship using section 18 of the
Australian Citizenship Act ... This group, of course, encompasses
the children of all those Australian born individuals, almost 2,000
people, who had to renounce their citizenship in Malta as
teenagers
5.57 Ms MacGregor continued:
We submit that the situation of those children is
no different, practically speaking, from the children born to
section 17 victims after their loss of citizenship. We see it as
being very important that this inquiry recommend that the announced
changes be extended to include the children of section 18 victims
born after their parents loss of citizenship.
5.58 The Committee queried whether there was any
plan for such children to be covered by the proposed amendments.
Representatives from DIMIA responded that it is an issue that will
be considered and that there may well be further changes down the
track, but that is the minister s prerogative .(18)
However, the Bill does not contain any special provision for the
situation outlined in Ms MacGregor s evidence quoted above. In the
second reading speech for the Bill, the Minister for Citizenship
and Multicultural Affairs, Hon. John Cobb MP, stated that:
No provision has been made for children born to a
former Australian citizen after that parent renounced their
citizenship. Unlike those who lost their citizenship under section
17, people who renounced their citizenship were well aware that
they had ceased to be Australian citizens. They could have had no
reasonable expectation of access to Australian citizenship for any
children born after renunciation.(19)
Apart from restructuring the 1948 Act to make it more
accessible, the Citizenship Bill proposes a number of main
changes.(20)
The Citizenship Bill introduces a framework for
the collection, use and storage of personal identifiers, to
increase the government s ability to accurately identify people
seeking to become citizens. In addition, the Citizenship Bill
explicitly provides that the Minister must be satisfied of an
applicant s identity before an application for citizenship can be
approved.
There is a new prohibition on the Minister
approving applications from those assessed by the Australian
Security Intelligence Organisation (ASIO) to be direct or indirect
risks to Australia s security. This prohibition will apply to all
applications whether they are for citizenship by descent, by
conferral or by resumption.
Spouses of Australian citizens will need to meet
the same eligibility criteria as other applicants, that is, the
applicant must have a basic knowledge of the English language, an
adequate knowledge of the responsibilities and privileges of
citizenship, must be likely to reside in or maintain a close
relationship with Australia, and must be of good character.
The Citizenship Bill increases the residential
qualifying period not less than two years in Australia in the
previous five years to three years. There will be no change to the
requirement to have spent one year in Australia in the two years
immediately prior to making the application.
There is a strengthening of existing residence
exemptions:
- for the purpose of the residential qualifying period, up to two
years spent outside Australia as a permanent resident or in
Australia as a temporary resident may be treated as time spent in
Australia as a permanent resident, provided the person has been
involved in activities beneficial to Australia. These applicants
will therefore need to have spent a minimum of 12 months in
Australia as a permanent resident.
- there will be only two circumstances in which a person will be
exempt from the requirement to spend at least 12 months as a
permanent resident.
The 1948 Act provides that where a child s
Australian citizen parent or parents renounce their citizenship,
their children automatically cease to be citizens, unless they do
not have the citizenship of another country. The Citizenship Bill
replaces this with a discretionary power, so that the circumstances
of each case can be considered and a decision can be made whether
or not it is appropriate for the child s citizenship to cease.
The Citizenship Bill removes the age limit for
registration of citizenship by descent.
There is provision under the Citizenship Bill for
children of people who lost their citizenship under the old section
17 (stripping Australians of citizenship if they became foreign
nationals) to apply for citizenship by conferral.
There is provision under the Citizenship Bill for
people born in the former Australian territory of Papua before it
became part of the new independent state of Papua New Guinea in
1975, to apply for citizenship by conferral if one or both parents
were born in Australia as it is now known.(21)
The Citizenship Bill removes the age limit on
resumption of Australian citizenship for those people who renounce
it to retain or acquire another nationality. The only requirements
for resumption will be that the person be of good character and not
a security risk.
The Citizenship Bill introduces provisions to
revoke citizenship acquired as a result of third-party fraud, and
strengthens the revocation provisions relating to serious criminal
offences.
Subclause 4(1) sets out the definition of
Australian citizen as being a person who is an
Australian citizen as provided under Division 1 (Automatic
acquisition of Australian citizenship) and Division 2 (Acquisition
of Australian citizenship by application) of Part 2 of the
Citizenship Bill.
If a determination is required as to whether a person is an
Australian citizen at a point in time before the
commencement of the Australian Citizenship Act 2005, then that
determination is done using the 1948 Act in force at the particular
time (subclause 4(2)).
Clause 5 defines permanent
resident for the purposes of the Citizenship Bill. A
permanent resident either (subclause 5(1)):
- is present in Australia and holds a permanent visa, or
- is not present in Australia and holds a permanent visa, and has
previously been in Australia and held a permanent visa immediately
before last leaving Australia.
The Minister has the discretion under
subclause 5(2) to determine that people:
- who hold, or have held, certain visas, or
- who are present in certain external territories of
Australia
may also be permanent residents. The Minister s determination is
made by legislative instrument under the Legislative
Instruments Act 2003.
Clause 7 deals with children
born either on a ship or an aircraft, or born after the death of a
parent. Where a child is born on a ship or an aircraft, that child
will be taken to have been born at the place where the ship or
aircraft is registered (subclause 7(1)). Where a
child is born on a ship or aircraft that is not registered, but is
owned by a government of a country, the child will be taken to have
been born in the country whose government owns the ship
(subclause 7(2)).
For the purpose of working out the citizenship
status of a child born after the death of a parent, the deceased
parent s citizenship status is taken to be the deceased parent s
status at the time of death.
Clause 8 deals with children
born as a result of artificial conception procedures. Specifically,
clause 8 expressly provides that if a child is conceived through
artificial conception to a married woman, where the woman s husband
has consented to the procedure, but is not the biological father of
the child, the woman s husband is taken to be the father of the
child.
Clause 10 defines
personal identifiers as any of the following:
- fingerprints and handprints
- height and weight
- a head and shoulders photograph
- an iris scan
- a signature
- any other identifier prescribed by regulations.
The definition in clause 10 includes a digital
form of the identifier.
Clause 12 provides that a child
born in Australia will be an Australian citizen only in the
following situations:
- where a parent of the child is either an Australian citizen or
permanent resident, or
- the child is ordinarily resident in Australia for ten years
from the day they are born.
Subclause 12(2) creates an
exemption to subclause (1), to the effect that a person is not an
Australian citizen where at the time of their birth:
- one of the person s parents is an enemy alien, and
- the place where the person is born is under occupation by the
enemy.
However, subclause 12(2) does not apply where the
person s other parent is an Australian citizen who is not an enemy
alien.
Clause 13 provides that a child (or children)
adopted under state or territory laws by an Australian citizen(s)
who permanently resides in Australia at the time of the adoption,
will be an Australian citizen.
Clause 14 provides for abandoned children found
in Australia to be Australian citizens, unless and until evidence
of a contrary status is presented.
Clause 15 deals with the situation of a
territory being incorporated into Australia. In those
circumstances, the Minister has the discretion to determine that
specified classes of people are, from a specified day, Australian
citizens by reason of their connection with the territory. The
Minister s determination takes the form of a legislative
instrument.
Subclause 16(2) sets out eligibility for
Australian citizenship for people born outside
Australia on or after 26 January 1949
(when the 1948 Act came into force). The primary requirement is
that at the time of the applicant s birth, one of their parents was
an Australian citizen.
If, at the time of the applicant s birth, the parent of
the applicant was an Australian citizen by virtue of the provisions
in Subdivision A of the Citizenship Bill or the descent provisions
in the 1948 Act (specifically sections 10B, 10C or 11 of the 1948
Act), then either of the following requirements applies:
- the parent must have been present in Australia for a
total period of at least two years at any time before the applicant
makes an application for citizenship, or
- the applicant is not a national or citizen of any country at
the time of the application for Australian citizenship, and the
person has never been a national or citizen of any country.
For applicants over the age of 18, the Minister
must also be satisfied that the applicant is a person of good
character at the time the Minister makes a decision about the
application.
Subclause 16(3) sets out the
eligibility for Australian citizenship for people born
outside Australia or New Guinea
before 26 January 1949. A person is eligible for
Australian citizenship where:
- one of the applicant s parents became an Australian citizen on
26 January 1949, and
- that parent was born in Australia or New Guinea or was
naturalised in Australia prior to the applicant s birth, and
- the Minister is satisfied that the applicant is of good
character at the time the Minister makes a decision about the
application.
Clause 17 deals with the
Minister s decision-making powers in respect of applications made
under clause 16. The Minister must, in writing, approve or refuse
the person becoming a citizen under clause 16 (subclause
17(1)). However, where an applicant satisfies the
eligibility requirements, the Minister must approve the applicant
becoming an Australian citizen (subclause
17(2)).
The Minister must not approve a person to become
an Australian citizen unless the Minister is satisfied of the
applicant s identity (subclause 17(3)).
Where there is an adverse security assessment or
a qualified security assessment in force under the Australian
Security Intelligence Organisation Act 1979 (ASIO Act) in
relation to an applicant, the Minister must not approve the
applicant becoming an Australian citizen (subclause
17(4)).
Where a person has ceased to be an Australian
citizen, there is a minimum twelve-month period from the cessation
of citizenship, when the Minister must not approve that person to
become an Australian citizen again (subclause
17(5)).
A person s Australian citizenship under
Subdivision A commences on the day the Minister approves the person
becoming an Australian citizen (subclause
19(1)).
Subclause 19(2) re-emphasises
that a person cannot become an Australian citizen by virtue of
Subdivision A, unless:
- for applicants born on or after 26 January 1949: one of their
parents was an Australian citizen at the time of the applicant s
birth, or
- for applicants born before 26 January 1949: one of their
parents became an Australian citizen on 26 January 1949.
A person becomes a citizen under Subdivision B
when (clause 20):
- the Minister approves the person becoming a citizen (see
clause 24), and
- if required, the person makes a pledge of commitment to become
an Australian citizen (see clauses 26 and
27).
Clause 21 sets out the
eligibility requirements for a person to become an Australian
citizen under Subdivision B. The general eligibility requirements
are set out in subclause 21(2), and require that
the Minister be satisfied that the applicant:
- is aged over 18 at the time of the application
- is a permanent resident at the time of the application
- understands the nature of the application
- satisfies the residence requirement (see clause
22 for more details), or has completed
relevant defence service (see clause 23 for more
details)
- possesses a basic knowledge of English
- has an adequate knowledge of the responsibilities and
privileges of Australian citizenship
- is likely to reside, or to continue residing, in Australia, or
otherwise maintain a close and continuing association with
Australia, and
- is of good character at the time of the Minister s decision on
the application.
Specific eligibility requirements are set out in
relation to:
- persons with permanent physical or mental incapacity
(subclause 21(3))
- persons aged 60 or over or with a hearing, speech or sight
impairment (subclause 21(4))
- persons aged under 18 (subclause 21(5))
- persons born to a former Australian citizen (subclause
21(6))
- persons born in Papua (subclause 21(7)),
and
- stateless persons (subclause 21(8)).
In order for a person to be eligible for
citizenship under subclauses 21(2), (3) and (4), the person must
satisfy the residency requirement in clause 22.
That requirement is that the person has been in Australia as a
permanent resident for a total of (subclause
22(1)):
- one of the two years prior to making the application for
citizenship, and
- three of the five years prior to making the application for
citizenship.
Exemptions and limitations to this residency period are set out
in subclauses 22(2) (9), and include:
- that the three years in the past five years requirement does
not apply where a person was born in Australia or was previously an
Australian citizen (subclause 22(2))
- a Ministerial discretion to treat a period as time in Australia
as a permanent resident where the person:
- was present in Australia, and
- will suffer significant hardship or disadvantage if the period
is not treated as a period in Australia as a permanent resident
(subclause 22(6))
- a Ministerial discretion to treat a period of not more than 12
months as time in Australia as a permanent resident where the
person:
- was present in Australia, and
- was engaged in activities during that period which were
beneficial to Australia (subclause 22(7)).
Clause 23 sets out the
relevant defence service requirements, being that the person
has:
- completed either three months in the permanent forces of the
Commonwealth, or six months as a reserve, or
- has been discharged as medically unfit for the service.
Where a person satisfies the relevant defence
requirements in clause 23, there is no need to meet the residency
requirements in clause 22, for the purposes of eligibility under
subclause 21(2).
Clause 24 sets out the framework
for the Minister s decision when considering whether a person
should become a citizen under the provisions in Subdivision B.
Subclause 24(2) gives the
Minister discretion to refuse a person becoming an Australian
citizen, even when the eligibility requirements in Subdivision B
are met. This is in contrast to subclause 17(2), where the Minister
must approve the application for citizenship where the person meets
the eligibility criteria.
Subclauses 24(3),
(4) and (7) put the same
limitations on the Minister s decision as subclauses 17(3), (4) and
(5) respectively.
Subclause 24(6) prevents the Minister from
approving a person becoming an Australian citizen where the person
is:
- the subject of proceedings for an offence under Australian law,
or
- serving time in prison, or
- confined to a psychiatric institution under court order in
connection with proceedings for an offence.
Subclause 24(6) also sets out
certain circumstances in which the Minister must not approve a
person becoming an Australian citizen when the person has
previously served time in prison.
Subclause 24(8) exempts persons
covered by subclause 21(8) (stateless persons) from having
subclauses 24(6) (Offences) and 24(7) (Cessation of citizenship)
applied to their application.
Clause 25 allows for the
Minister to cancel approvals made under clause 24 where the person
s Australian citizenship is yet to commence under the provisions in
clause 28, and either:
- for persons covered by subclause 21(2), (3) or (4), the
Minister is satisfied the person is not a permanent resident;
or is not likely to reside or continue residing in
Australia or maintain a close relationship with Australia;
or the person is not of good character (see
subclause 25(2)); or
- the person has not made a pledge of commitment within 12 months
of receiving approval to become a citizen from the Minister, and
the failure to make the pledge is not one prescribed by regulations
(subclause 25(3)).
The Minister can also cancel approval under
clause 24 for a child under 16 to become an Australian citizen,
where the Minister has cancelled the child s parent s approval
under clause 24 (see subclause 25(4)). It seems
that if both of the child s parents were
approved by the Minister, in order for the Minister to cancel the
child s approval, both of the parents
would have to have their approval cancelled (see specifically
subclause 25(4)(d)).
Clause 26 provides that a pledge
of commitment must be made to become an Australian citizen unless
the person:
- is aged under 16 at the time of the application, or
- has a permanent physical or mental incapacity at the time the
application was made and cannot understand the nature of the
application, or
- applied to become a citizen by virtue of subclause 21(6)
(Person born to a former Australian citizen), 21(7) ( Person born
in Papua), or 21(8) (Stateless person).
Clause 27 makes provision for
the form of the pledge and the persons who may receive the
pledge.
Clause 28 provides that a person
applying under Subdivision B becomes a citizen:
- if the person is required to make a pledge of commitment, on
the day they make the pledge (subclause 28(1)),
or
- if the person is not required to make a pledge of commitment,
on the day the Minister gives approval for the person to become a
citizen (subclause 28(2)).
Subclause 29(1) makes provision
for a person to apply to the Minister to resume Australian
citizenship.
Subclause 29(2) deals with the
eligibility of a person who ceased being a citizen under
clause 33 (renunciation) or clause
36 (regarding children) of the Citizenship Bill to resume
citizenship.
Subclause 29(3) deals with the
eligibility of a person to resume citizenship, who had ceased to
become a citizen under the following provisions of the 1948
Act:
- section 17 (dual citizenship)
- section 18 (renunciation)
- section 20 (residence outside Australia), or
- section 23 (about children).
Clause 30 sets out the
provisions in relation to a Minister s decision in relation to an
application to resume citizenship.
Subclause 30(2) gives the
Minister the discretion, similar to the provision in
subclause 24(2), to refuse to approve a person to
become an Australian, even the eligibility requirements in
subclause 29(2) or (3) are met.
Subclauses 30(3) and
(4) put the same limitations on the Minister s
decision as subclauses 17(3) and (4) respectively.
Clause 32 provides that a person
resumes Australian citizenship on the day on which the Minister
approves their becoming a citizen. Clause 32 also deals with the
kind of citizenship which the person resumes, that is, citizenship
under Subdivision A or B.
Clause 33 provides that a person can apply to
the Minister to renounce Australian citizenship.
The Minister must approve an application to renounce citizenship
where the Minister is satisfied the person (subclause
33(3)):
- is aged 18 or over and, at the time of making the application
to renounce citizenship, is a national or citizen of a foreign
country, or
- was born, or is ordinarily resident, in a foreign country, and
is not entitled to acquire nationality or citizenship in that
country because the person is an Australian citizen.
The Minister must not approve a renunciation of
Australian citizenship unless the Minister is satisfied of the
person s identity (subclause 33(4)).
Subclauses 33(5) (7) set out
specific instances when the Minister may, or must, not approve a
person s renunciation of Australian citizenship.
Subclause 33(5) provides the
Minister with the discretion to refuse to approve a renunciation of
Australian citizenship when, at the time the application was made,
the person is a national or citizen of a country, and Australia is
engaged in a war. According to the Explanatory Memorandum, this is
to ensure that a person does not absolve themselves of their
responsibilities as an Australian citizen during a time of
war.(22)
The Minister must not approve a renunciation of
Australian citizenship when the Minister considers that the
renunciation would not be in Australia s interest
(subclause 33(6)).
Subclause 33(7) provides that
the Minister must not approve a renunciation of Australian
citizenship unless the person is, or immediately on renunciation of
Australian citizenship will become, a national or citizen of a
foreign country. This provision is intended to avoid the situation
of a person becoming stateless on renunciation of Australian
citizenship.(23)
A person s Australian citizenship ceases at the
time the Minister approves the renunciation (subclause
33(8)).
Clause 34 makes provision for
the Minister to revoke a person s Australian citizenship.
Subclause 34(1) provides that
where a person has obtained citizenship under the provisions of
Subdivision A of Division 2 (Citizenship by descent), the Minister
may revoke the person s citizenship for any of the following
reasons:
- the person is convicted of an offence of making a false
statement or representation under clause 50,
or
- the person is convicted of an offence of making a false or
misleading statement or providing false or misleading documents
under sections 137.1 or 137.2 of the Criminal Code,
or
- the person obtained the Minister s approval to become a citizen
as a result of third-party fraud (see subclause
34(8)), or
- the Minister is satisfied that it would be contrary to the
public interest for the person to remain an Australian
citizen.
Subclause 34(2) provides that
where a person has obtained citizenship under the provisions of
Subdivision B of Division 2 (Citizenship by conferral), the
Minister may revoke the person s citizenship if the Minister is
satisfied that it is contrary to Australia s interest for the
person to remain an Australian citizen,
and any of the following apply:
the person is convicted of an offence of making a
false statement or representation under clause 50,
or
the person is convicted of an offence of making a
false or misleading statement or providing false or misleading
documents under sections 137.1 or 137.2 of the Criminal
Code, or
- the person has been convicted of a serious offence (see
subclause 34(5)), or
- the person obtained the Minister s approval to become a citizen
as a result of migration-related fraud (see subclause
34(6)), or
- the person obtained the Minister s approval to become a citizen
as a result of third-party fraud (see subclause
34(8)).
Subclause 34(3) prohibits the
Minister from revoking a person s Australian citizenship because
they have been convicted of a serious offence, if that revocation
would result in the person becoming stateless.
Clause 35 provides that a person
ceases to be an Australian citizen if he or she is a national or
citizen of a foreign country, and the person serves in a country s
armed forces in a war against Australia.
Subclause 36(1) provides for the
revocation of Australian citizenship of a child under 18 where the
responsible parent (see clause 6) of the child
ceased to be an Australian citizen under clauses 33, 34 or 35.
However, the child s Australian citizenship cannot be revoked where
another responsible parent of the child is an Australian citizen
(subclause 36(2)).
Clause 37 provides for a person to apply to the
Minister to be provided with a notice evidencing the person s
Australian citizenship.
Clause 38 provides for the surrender of the
evidentiary notice where a person s Australian citizenship is
revoked under clause 34 or the Minister cancels the notice (see
subclause 37(6)).
Clause 39 creates an offence of altering a
notice of Australian citizenship.
Clauses 40 and 41 make
provision for obtaining personal identifiers from people in order
for the Minister to meet her/his obligations under Part 2 of the
Citizenship Bill to be satisfied of a person s identity before
making certain decisions.
Subclause 42(1) creates an offence of accessing
identifying information without authorisation. Authorised access to
identifying information is provided for in clauses 42(3)
(5).
Subclause 43(1) creates an offence of
disclosing identifying information without permission. Permitted
disclosures are set out at subclause 43(2).
Subclause 44(1) creates an offence of
unauthorised modification of identifying information.
Subclause 44(2) creates an offence of unauthorised
impairment of identifying information.
Subclause 45(1) creates an offence of
destroying identifying information.
The maximum penalty for the offences in clauses 42 45 is two
years imprisonment or $13 200, or both.
Clauses 46 and 47 make
provision for the administrative details of making applications to
the Minister and notification by the Minister of decisions.
Subclause 48(1) provides that the Minister may
arrange for computerised decision-making for the purposes of making
any decision or complying with obligations under the Citizenship
Bill or subordinate regulations. The Minister may substitute
her/his own decision for a computer-made decision
(subclause 48(3)).
Clause 49 provides that a notice by an
authorised person that a computer program was or was not
functioning correctly at a particular time and in relation to a
particular decision is prima facie evidence of the matters set out
in the notice.
Subclause 50(1) creates an offence of making
false or misleading statements. Subclause 50(2)
creates an offence of concealing a material circumstance. The
maximum penalty in relation to the offences in clause 50 is 12
months imprisonment.
Clause 51 provides that the extended
geographical jurisdiction Category D, in section 15.4 of the
Criminal Code, applies to all the offences in the
Citizenship Bill.
Clause 52 provides for applications to be made
to the Administrative Appeals Tribunal in relation to certain
decisions made under the Citizenship Bill.
Clause 53 inserts a regulation-making power for
the purposes of the Citizenship Bill.
Schedule 1 sets out two alternative pledges which may be used by
those making a pledge for the purposes of clauses 26 and 27. These
are unchanged from those in the 1948 Act, which was last amended in
1993.
The
Transitionals Bill
Schedule 1 of the Transitionals Bill makes
amendments to a number of Acts as a consequence of the commencement
of the provisions in clauses 3 54 of the Citizenship Bill. These
amendments mainly change references to the 1948 Act to refer to the
Citizenship Bill.
Schedule 2 makes a single amendment to the provisions of the
Immigration (Education) Act 1971 to repeal a provision
regarding when the Commonwealth s obligation to provide English
tuition to a person ceases.
Part 1 of Schedule 3 sets out the provisions
for transitioning people covered by the 1948 Bill to being covered
by the Citizenship Bill.
Part 2 of Schedule 3 sets out the transitional
provisions in relation to the amendments made by Schedule 1 of the
Transitionals Bill.
The Citizenship Bill makes a sensible re-structuring of the 1948
Act in line with recommendations of both the Joint Standing
Committee on Migration in 1994 and the Australian Citizenship
Council in 2000.
There are a number of issues in the Bill on which Parliament may
wish to request further advice.
As noted above, under proposed
subclause 17(4), the Minister must not approve a
citizenship application where there is an adverse security
assessment or a qualified security assessment in force under the
ASIO Act which indicates that the applicant is directly or
indirectly a risk to security . Under section 54 of the ASIO Act, a
person can apply to the Administrative Appeals Tribunal for a
review of an adverse security assessment. As noted above, however,
there are claims that such assessments are virtually impossible to
challenge because of the lack of information made available to the
subject and their legal team .(24) Under subsection
38(2) of the ASIO Act, for example, the Attorney-General for
security reasons can certify that a person is either not to be
notified of an adverse security assessment or not to be informed of
the grounds for such an assessment. Parliament may wish to request
advice as to whether, as claimed by Senator Nettle, proposed
subclause 17(4) effectively gives ASIO the power to decide who can
and can t become a citizen .(25)
Another issue is the situation of children born after their
parents renounced Australian citizenship, as in the case of
children of Maltese immigrants who were required to give up
Australian citizenship to obtain work and other rights when they
returned to Malta. As discussed above, in contrast to children of
people stripped of citizenship under the old section 17
(prohibition on dual nationality), the Bill does not address the
situation of children whose parents renounced Australian
citizenship. The policy behind this distinction appears to be that
there should be no special treatment for families who make their
own decision to renounce Australian citizenship, for whatever
reason. Under the Bill, however, parents who renounced their
Australian citizenship will be able, under proposed clause 29, to
apply to resume their citizenship, but any children born after they
renounced citizenship will have no access to Australian
nationality. Parliament might consider obtaining further advice on
the extent to which this may create an anomalous situation
within families with a connection to Australia.
Finally, the Bill does not address some important nationality
issues which have arisen in recent High Court cases and which could
affect a significant number of inhabitants of Australia.
One such nationality issue is the situation of people born
overseas who have grown up in Australia, but have not formally
become Australian citizens. These people are legally regarded as
aliens under the Australian Constitution. They can have their
permanent residency removed and be deported from this country if,
for example, they fail the character test under the Migration
Act.(26) In Shaw (2003) the High Court said
that this even applied to long-term British settlers who have lived
in Australia for decades and have been treated as full members of
the Australian community with the same voting and other rights in
this country as Australian citizens.(27)
A further issue is the constitutional position of dual nationals
in Australia. In Singh (2004) and Ame s Case
(2005), the High Court said that an alien under the Australian
Constitution is simply a person who owes obligations (allegiance)
to a sovereign power other than Australia .(28) If this
is the extent of the definition, then any dual national in
Australia is an alien and can be subject to the full extent of the
Commonwealth s power over aliens under the Constitution. Given not
least the statement in the Preamble both of the 1948 Act and the
current Bill that citizenship represents formal membership of the
Australian community, it would seem logical that an Australian
citizen, even if also a national of another country, cannot be an
alien . However, the High Court has taken a different view in its
handling of the definition of alien in recent cases.(29)
Parliament might consider whether the Bill could usefully address
this issue.
- Hon. A. Calwell (Minister for Immigration), Second reading
speech: Nationality and Citizenship Bill 1948 , House of
Representatives, Debates, 30 September 1948, p. 1060. For
more background on the 1948 Act, see the
Explanatory Memorandum, Nationality and Citizenship Bill 1948.
For general information on citizenship law, see the Parliamentary
Library s Internet guide to Administrative Law,
http://www.aph.gov.au/library/intguide/law/adminlaw.htm#immigration.
- For further details, see Australian Citizenship Council, Key
legislative amendments 1955 1997 , Australian
Citizenship for a New Century, Canberra, 2000, pp. 34 36;
I. Ireland, Australian Citizenship Legislation Amendment Bill 2002
, Bills
Digest, no. 78, Department of the Parliamentary Library,
2001 02.
- Hon. G. Hardgrave (Minister for Citizenship and Multicultural
Affairs),
Australian citizenship: then and now, speech to the Sydney
Institute, Sydney, 7 July 2004.
- Hon. J. Howard (Prime Minister),
Counter-terrorism laws strengthened, media release,
Canberra, 8 September 2005.
- Hon. J. Cobb (Minister for Citizenship and Multiculturalism),
Australian Citizenship in the Global Age: Reforms to Australian
Citizenship Act, speech to the National Press Club,
Canberra, 14 September 2005.
- Joint Standing Committee on Migration, Australians all:
enhancing Australian citizenship, Australian Government
Publishing Service, Canberra, September 1994.
- ibid., p. xxii.
- ibid., p. xxiv.
- The ties that bind, Government
response to the report by the Joint Standing Committee on
Migration: Australians all: enhancing Australian citizenship , 18
September 1995, p. 12.
- Australian Citizenship Council, op. cit.
- ibid., Recommendation 62, p. 91.
- ibid., Recommendation 64, p. 91.
- Joseph Kerr, Convicted terrorists will keep citizenship ,
Sydney Morning Herald, 10 November 2005, p. 4.
- ibid.
- Former section 17 was repealed by the Australian
Citizenship Legislation Amendment Act 2002. That section
provided that, except in relation to an act of marriage , a person
who does any act or thing: (a) the sole or dominant purpose of
which; and (b) the effect of which; is to acquire the nationality
or citizenship of a foreign country, shall, upon that acquisition,
cease to be an Australian citizen . Thus, if an Australian citizen
applies to become a citizen of another country, the act of making
that application will, once approved, lead to the loss of
Australian citizenship. The background to the repeal of former
section 17 is covered in the relevant Bills
Digest.
- Senate Legal and Constitutional Committee,
They still call Australia home: Inquiry into Australian
expatriates, Canberra, March 2005.
- ibid., pp. 49 51.
- ibid., p. 51.
- Hon. J. Cobb, Second reading speech: Australian Citizenship
Bill 2005 , House of Representatives, Debates,
9 November 2005, p. 13.
- ibid.
- See also Peter Prince, Mate!
Citizens, aliens and real Australians the High Court and the case
of Amos Ame , Research Brief, no. 4, Parliamentary
Library, Canberra, 2005 06.
- Explanatory Memorandum, p. 43.
- ibid., p. 44.
- Kerr, op. cit., p. 4
- ibid.
- See, for example, the case of Robert Jovicic, born in France to
Yugoslav parents, who had lived in Australia since the age of two
but had not formally become a citizen, and who was deported to
Serbia after committing drug-related crimes.
Out of touch deportation rules need a review , The
Age, 28 November 2005.
- There are some 355 000 British-born migrants in this
country who have not become citizens. See Peter Prince, Deporting
British Settlers , Research Note, no. 33,
Parliamentary Library, Canberra, 2003 04.
- See Peter Prince, Mate!
Citizens, aliens and real Australians the High Court and the case
of Amos Ame , op. cit., p. 22.
- See Singh
and Ame s
Case.
Ann Palmer, Rosemary Bell, Angus Martyn, Patrick
O'Neill and Peter Prince
7 December 2005
Bills Digest Service
Information and Research Services
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Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
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ISSN 1328-8091
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