Bills Digest no. 4 2013–14

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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.

Moira Coombs
Law and Bills Digest Section 
6 August 2013

Note: This Digest is an historical Digest, published after the Bill was passed by Parliament and became an Act.

Contents

Purpose of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Financial implications
Key issues and provisions
Concluding comments

 

Date introduced: 30 May 2013

House: House of Representatives

Portfolio: Immigration and Citizenship

Commencement: The Bill has been passed by Parliament and is now an Act. The Australian Citizenship Amendment (Special Residence Requirements) Act 2013 commenced on the day after it received Royal Assent. The Act received Royal Assent on 21 June 2013 and commenced on 22 June 2013.[1] However, this Digest is written on the basis that the Bill is prospective.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Australian Citizenship Amendment (Special Residence Requirements) Bill 2013 (the Bill) is to amend the Australian Citizenship Act 2007[2] (the Act) to insert a ministerial discretion to apply ‘alternative residence requirements’ in place of ‘special residence requirements’ to certain persons who have applied for Australian citizenship. The persons being contemplated are those who undertake activities or work of benefit to Australia and who either need to be an Australian citizen to participate in those activities, or whose home base is in Australia but whose work frequently takes them outside of the country.

Background

The Act provides for the conferral of Australian citizenship.[3] A person becomes an Australian citizen if the Minister so decides.[4]

A person may apply to become an Australian citizen.[5] The Act provides for people to become Australian citizens under seven categories:

1. general eligibility[6]
2. persons with permanent or enduring physical or mental incapacity[7]
3. persons who are aged over 60 or have a hearing, speech or sight impairment[8]
4. persons aged under 18[9]
5. persons born to former Australian citizens[10]
6. persons born in Papua[11] and
7. stateless persons.[12]

Residence requirements

Applicants within categories (i), (ii) and (iii) noted immediately above must satisfy either:

(a)          the general residence requirement

(b)          the special residence requirement or

(c)          the defence service requirement

at the time of application.[13]

Section 22 of the Act provides for the general residence requirement. With minor exceptions noted below, to satisfy the general residence requirement an applicant needs to have been in Australia for four years prior to the application date,[14] and not to have been an unlawful non‑citizen in this period.[15] He or she must also have been a permanent resident for twelve months prior to the application date.[16]

Some overseas absences are allowed – up to twelve months in the previous four years,[17] and up to 90 days in the previous twelve months.[18]

A person does not satisfy the ‘four year requirement’ noted above if during that time he or she was in prison or confined to a psychiatric institution under a court order made in connection with an offence against Australian law.[19]

A number of Ministerial discretions already exist in section 22 of the Act in relation to satisfying the general residence requirement.[20]

If certain applicants cannot satisfy the general residence requirement, the question then arises as to whether they might satisfy the special residence requirement or the defence service requirement.

The defence service requirement is set out in section 23 of the Act and allows certain persons who have completed relevant defence service to satisfy residency requirements in circumstances where they might not otherwise have done so. This eligibility can extend to members of their family unit.

There are two types of special residence requirement which can assist persons who do not satisfy the general residence requirement obtain Australian citizenship. Section 22A of the Act concerns persons engaging in activities that are of benefit to Australia, where Australian citizenship is required in order for the person to engage in the activities. Section 22B concerns persons engaged in particular kinds of work requiring regular travel outside Australia

The new discretionary powers to be inserted by the Bill

The Bill seeks to provide the Minister with a personal, non-compellable discretionary power to substitute less onerous residence requirements in sections 22A and 22B to provide a pathway to citizenship for people who are engaged in activities or work of benefit to Australia and who either need to be an Australian citizen to participate in those activities, or whose home base is in Australia but whose work frequently takes them outside of the country. As the Minister emphasised in his second reading speech:

In order to reinforce the importance of presence in Australia as a way of understanding the Australian way of life and the commitment made through the citizenship pledge, the applicant must give the Minister an undertaking in writing that, if they acquire citizenship through the exercise of the special power:

• they will be ordinarily resident in Australia throughout the two years following acquisition of citizenship
• they will be physically present in Australia for at least 180 days during that two year period; and
• they understand that their citizenship can be revoked by the Minister if they do not comply with this undertaking.

The ‘ordinarily resident’ criterion ensures that those who obtain citizenship in these special circumstances genuinely have their home or permanent abode in Australia, and that absences from Australia are only temporary in nature. For example, a defence scientist who spends extended periods of time outside Australia for the purpose of their work, but who spends at least 180 days in the two year period after acquiring citizenship in Australia and whose home base is here, will generally be assessed as ordinarily resident in Australia. However, a defence scientist whose home base is in a foreign country, and who is in Australia for less than 180 days, would not be fulfilling their commitment to Australia and would not be considered ordinarily resident in Australia.[21]

Press reports have referred to the ‘Ahmed Bill’ introduced into Parliament on 30 May 2013. One report noted:

Without mentioning Fawad Ahmed by name, the Immigration Minister, Brendan O’Connor has introduced to federal parliament a Bill that paves the way for the Pakistan-born leg-spinner to become an Australian citizen before the Ashes.[22]

This may be borne out by the Minister’s second reading speech where he notes that:

The new Instrument[23] will include international cricket competition as a specified activity and adds Cricket Australia to the list of organisations who may support an application.[24]

In early July, Fawad Ahmed was granted Australian citizenship. He has been chosen to play in the Australia A squad for the 2013 Tour of Africa which commenced on 18 July 2013 in Harare, Zimbabwe. He commented:

To play for Victoria or Australia was far away from the dream. I just came here to just live as a normal human being, as a safe human being.[25]

However, the new instrument is not restricted to sports people alone. The new instrument extends the categories of people whose work requires them to travel outside Australia. The amendments include the following categories of people covered under section 22B:

• scientists employed by an Australian university, CSIRO or a medical research institute
• medical specialists, internationally renowned in their field, who are fellows of an Australian Medical College
• writers or persons engaged in the visual or performing arts who are holders of, or have held, a Distinguished Talent Visa and
• Chief Executive Officers or Executive Managers of an S&P/AX All Australian 200 listed company.[26]

Committee consideration

Senate Selection of Bills Committee

The Committee resolved at its meeting on 17 June 2013 that the Bill not be referred to a Committee.[27]

Senate Standing Committee for the Scrutiny of Bills

The Committee raised concerns with the broad discretionary powers of the Minister under new subsections 22A(1A) and 22B(1A) of the Bill and the importance of adequate review rights for persons affected by the exercise of the Minister’s powers.[28] The Committee noted:

However, given that the power is intrinsic to the policy of the bill the committee leaves the question of whether the power and the absence of merits review are appropriate to the consideration of the Senate as a whole.

The Committee draws Senators’ attention to the bill, as it may be considered to make rights, liberties or obligations unduly dependent upon non-reviewable decisions, in breach of principle 1(a)(iii) of the Committee’s terms of reference and to delegate legislative powers inappropriately, in breach of principle 1(a)(iv) of the Committee’s terms of reference.[29]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee was concerned about the rights engaged by the Ministerial discretion to revoke a person’s citizenship. The relevant rights are the right to freedom of movement, the right to a fair hearing and children’s rights.

The committee intends to write to the Minister for Immigration and Citizenship to ask whether the Ministerial discretion to revoke a person’s citizenship is consistent with the right to a fair hearing in article 14(1) of the ICCPR and, in relation to children, to the right of a child to a nationality and the requirement to act in the child’s best interests.[30]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible with human rights because to the extent that it may engage human rights, those limitations are reasonable, necessary and proportionate.[31]

Policy position of non-government parties/independents

The Coalition members in the House of Representatives and the Senate were pleased to support the Bill, with Scott Morrison, Shadow Minister for Immigration and Citizenship noting:

The Coalition recognises that a range of circumstances can emerge where the additional flexibility set out in the Bill clearly will be in the national interest. Individuals engaged in specialist work or sporting activities which involve extensive overseas travel and activity based outside Australia can find it difficult to meet citizenship requirements. Representation in Australian sporting teams can be limited if citizenship requirements are not met before selection processes occur.[32]

In the Senate, Senator Michaelia Cash noted:

[The Bill] is intended to apply to exceptional circumstances where it is in Australia’s national interest for greater flexibility and discretion to be available in the qualifying period applying for citizenship. Currently the Minster for Immigration and Citizenship has no discretion in these cases. If the special residence criteria currently specified in the Act are not met, then citizenship cannot be conferred. This can result in outcomes inconsistent with Australia’s national interest.[33]

Financial implications

The Explanatory Memorandum states that ‘the financial impact of these amendments is low. The estimated costs associated with the implementation of the proposed amendments will be met from within the Department’s existing funding’.[34]

Key issues and provisions

Special residence requirements—activities requiring Australian citizenship

The purpose of proposed subsection 22A(1A) of the Act is to include a ministerial discretion in relation to alternative residence requirements relating to citizenship. Existing section 22A deals with the special residence requirements of persons engaged in activities that are of benefit to Australia and who need to be an Australian citizen to participate in those activities. Currently an applicant satisfies the special residence requirements under subsection 22A(1) if:

• the applicant seeks to engage in an activity specified in subsection 22C(1)[35] (subparagraph 22A(1)(a)(i))
• the activity would benefit Australia (subparagraph 22A(1)(a)(ii))
• the applicant is required to be an Australian citizen to engage in the activity (subparagraph 22A(1)(a)(iii))
• there is insufficient time to satisfy the general residence requirement (subparagraph 22A(1)(a)(iv)) and
• the head of, or a senior person within, a specified organisation notifies the Minister that the person has a reasonable prospect of being engaged in that activity (paragraph 22A(1)(b))
• the applicant was present in Australia for 180 days in a two year period immediately before the application was made (paragraph 22A(1)(c))
• the applicant was in Australia for 90 days in the 12 months prior to the application (paragraph 22A(1)(d))
• the applicant was ordinarily resident in Australia for the two years prior to application (paragraph 22A(1)(e))
• the applicant was a permanent resident for the prior two years (paragraph 22A(1)(f)) and
• the applicant was not an unlawful non-citizen in the previous two years (paragraph 22A(1)(g)).

 Proposed subsection 22A(1A), inserted by item 1 of the Bill, provides that the Minister may determine in writing that paragraphs 22A(1)(d) to (g) (the last four bullet points set out immediately above) do not apply to the applicant if the Minister is satisfied that:

• paragraphs 22A(1)(a), (b) and (c) apply (see above) (paragraph 22A(1A)(a))
• the applicant satisfies the relevant existing criteria in subsections 21(2), 21(3) or 21(4), which set out the requirements that apply to those seeking Australian citizenship: under general eligibility provisions; on the basis that they have a permanent or enduring physical or mental incapacity; or on the basis that they are at least 60 years old or have a hearing, speech or sight impairment (these requirements are explored below) (paragraph 22A(1A)(b))
• the applicant was a permanent resident for 90 days immediately before the application was made (paragraph 22A(1A)(c))
• the applicant was not an unlawful citizen at any time during the 180 days immediately before the application was made (paragraph 22A(1A)(d))
• the applicant gives an undertaking to the Minister on the approved form under subsection 22A(8) that if the applicant becomes a citizen under subsection 22A(1A), the applicant will be ordinarily resident in Australia for a two year period after he or she becomes a citizen and will be present in Australia for at least 180 days during that two year period (paragraph 22A(1A)(e)) and
• in that undertaking, the applicant confirms that he or she understands the effect of proposed section 34A (set out below) (paragraph 22A(1A)(f)).

Proposed subsection 22A(1B) provides that if the Minister exercises the power under subsection 22A(1A) then, for the purposes of section 21, the applicant is taken to have satisfied the special residence requirement.

Rules regarding the exercise of the Minister’s power under subsection 22A(1A)

Item 4 inserts proposed subsections 22A(6)—(11). These subsections relate to the rules that apply to the exercise of the power by the Minister under subsection 22A(1A).

Proposed subsection 22A(6) provides that only the Minister may exercise the power under subsection 22A(1A). The Minister is under no duty to consider the exercise of the power, whether requested to do so by the applicant or any other person or in any other circumstances—proposed subsection 22A(7).

Under proposed subsection 22A(8) the Minister may approve a form to be used when giving an undertaking to the Minister for the purposes of paragraph 22A(1A)(e).

Proposed subsection 22A(9) provides that the Minister must table a statement in each House of Parliament within 15 sitting days after the applicant becomes an Australian citizen. The statement must set out that the Minister has exercised the power under subsection 22A(1A); the nature of the relevant activity that the person is engaged in; and the reasons why the Minister exercised the power under subsection 22A(1A), including why the Minister considers the relevant activity of benefit to Australia. The statement is not to include the name of the applicant—proposed subsection 22A(10).

Special residence requirements—work requiring absence from Australia

Item 5 inserts proposed subsection 22B(1A). Existing section 22B deals with the special residence requirements of persons who are engaged in particular kinds of work requiring regular travel outside Australia.

Currently an applicant satisfies the special residence requirements under subsection 22B(1) if:

• the applicant engages in work of a kind that is specified in a legislative instrument made under section 22C[36] and is required to regularly travel outside Australia because of that work (paragraph 22B(1)(a))
• the applicant was engaged in that work for at least two years in the four years preceding the application, and during that period regularly travelled outside Australia for that work (paragraph 22B(1)(b))
• the applicant was present in Australia for 480 days in the four years preceding the application (paragraph 22B(1)(c))
• the applicant was in Australia for 120 days in the 12 months prior to the application (paragraph 22B(1)(d))
• the applicant was ordinarily resident in Australia for the four years prior to application (paragraph 22B(1)(e))
• the applicant was a permanent resident for the prior 12 months (paragraph 22B(1)(f)) and
• the applicant was not an unlawful non-citizen in the previous four years (paragraph 22B(1)(g)).

Proposed subsection 22B(1A) provides that the Minister may determine in writing that paragraphs 22B(1)(c) to (g) (the last five bullet points set out immediately above) do not apply to the applicant if the Minister is satisfied that:

• paragraphs 22B(1)(a) and (b) (set out above) apply in relation to the person (paragraph 22B(1A)(a))
• the work in which the person engages is of benefit to Australia (paragraph 22B(1A)(b))
• the applicant satisfies the relevant existing criteria in subsections 21(2), 21(3) or 21(4), which set out the requirements that apply to those seeking Australian citizenship: under general eligibility provisions; on the basis that they have a permanent or enduring physical or mental incapacity; or on the basis that they are at least 60 years old or have a hearing, speech or sight impairment (these requirements are explored below) (paragraph 22B(1A)(c))
• the applicant was present in Australia for at least 180 days during the two year period immediately before the application was made (paragraph 22B(1A)(d))
• the applicant was a permanent resident for 90 days prior to the application (paragraph 22B(1A)(e))
• the person was not an unlawful citizen for 180 days immediately before the application (paragraph 22B(1A)(f))
• the person has given the Minister an undertaking on an approved form under subsection 22B(8) that if they become a citizen under subsection 22B(1A), they will be ordinarily resident in Australia for a two year period and will actually be present in Australia for at least 180 days during that two year period (paragraph 22B(1A)(g))
• in that undertaking, the person confirms that they understand the effect of proposed section 34A (set out below) (paragraph 22B(1A)(h)).

Item 9 inserts proposed subsections 22B(6) to (11), which set out the rules that apply to the exercise of power under subsection 22B(1A). These rules reflect the rules set out in item 4 for proposed subsection 22A(1A), discussed above.

Satisfying the criteria in subsections 21(2), 21(3) or 21(4)

To satisfy the relevant general eligibility criteria at subsection 21(2) of the Act, a person must:

• be at least 18 years old (paragraph 21(2)(a))
• be a permanent resident at the time of application and when the Minister decides the application (paragraph 21(2)(b))
• understand the nature of the application (paragraph 21(2)(d))
• possess a basic knowledge of English (paragraph 21(2)(e))
• have adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship (paragraph 21(2)(f))
• be likely to reside in or maintain close and continuing association with Australia if the application were to be approved (paragraph 21(2)(g))
• be of good character at the time of the Minister’s decision on the application (paragraph 21(2)(h)).

To be eligible for Australian citizenship on the basis of permanent or enduring physical or mental incapacity, as provided for at subsection 21(3) of the Act, a person must:

• be at least 18 years old (paragraph 21(3)(a))
• be a permanent resident (paragraph 21(3)(b))
• have a permanent or enduring physical or mental incapacity such that they are not capable:

–                      of understanding the nature of the application for citizenship

–                      of demonstrating a basic knowledge of English or

–                      of demonstrating an adequate knowledge of Australia and the responsibilities and privileges of citizenship (paragraph 21(3)(d))

• be likely to reside in Australia or maintain or maintain a close and continuing association with Australia (paragraph 21(3)(e))
• be of good character (paragraph 21(3)(f)).

To be eligible for Australian citizenship on the basis of being over 60 or having a hearing, speech or sight impediment, as provided for at subsection 21(4) of the Act, a person must:

• be aged 60 or over or aged 18 or over and suffering from a permanent loss or substantial impairment of hearing, speech or sight (paragraph 21(4)(a))
• be a permanent resident (paragraph 21(4)(b))
• understand the nature of the application (paragraph 21(4)(c))
• be likely to reside in Australia or maintain a close association with Australia (paragraph 21(4)(e))
• be of good character (paragraph 21(4)(f)).

Revocation of Citizenship

Existing section 34 of the Act concerns revocation of citizenship by the Minister. Item 15 inserts proposed section 34A which deals with revocation of citizenship in relation to special residence requirements. Proposed subsection 34A(1) provides that the Minister may revoke a person’s citizenship if:

• the person is an Australian citizen under Subdivision B of Division 2[37]and
• the person became a citizen because the Minister exercised power under subsection 22A(1A) or 22B(1A) and
• the Minister is satisfied that the person will not comply with the terms of their undertaking under paragraph 22A(1A)(e) or 22B(1A)(g) – that is, the person will not be ordinarily resident in Australia during the two year period after they became an Australian citizen or will not be present in Australia for a total of at least 180 days during that two year period.

Proposed subsection 34A(2) provides that the Minister must not revoke a person’s citizenship under subsection 34A(1) if it means that the person would not be a national or citizen of any country. This limitation also applies also under existing section 34. Proposed subsection 34A(3) provides that the power to revoke a person’s citizenship may only be exercised by the Minister personally.

Proposed subsection 34A(4) provides that the person ceases to be an Australian citizen at the time of revocation. Existing section 36 provides that if the person is a responsible parent of a child under 18, the child’s citizenship may also be revoked. However, the child’s citizenship must not be revoked if there is another responsible parent who is an Australian citizen or if revocation would cause the child to become stateless.

Existing section 52 relates to the review of decisions by the Administrative Appeals Tribunal (AAT). Proposed subsection 52(3), inserted by item 18 of the Bill, provides that for the purposes of the AAT reviewing a decision under section 24 of the Act to refuse to approve a person becoming an Australian citizen, the AAT must not exercise the power under subsection 22A(1A) or 22B(1A) and must not review any exercise of the power or failure to exercise the power. As a result, the decision of the Minister under these provisions is not subject to merits review.

Concluding comments

The Bill will provide flexibility in the legislation to enable the Minister to exercise a discretion to grant citizenship to people who find it difficult to meet the residence criteria as they currently stand.

As the Minister commented in his second reading speech:

The proposed amendments would give the Minister a discretion to provide a pathway to citizenship to a very small number of people in very exceptional circumstances, where their becoming a citizen would be of benefit to Australia. Australia should be proud to call these people their own.[38]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

 

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