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
This paper has been prepared to support the work of the 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 contents
with Senators and Members and their staff but not with members of the
public.
ISSN 1328-8091
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