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Chapter 2 - Overview of the Bill
2.1
This chapter briefly outlines the key provisions of the
Bill. The provisions of the Australian
Citizenship (Transitionals and Consequentials) Bill 2005 are technical in
nature and are not discussed in detail in this report.
Key provisions
2.2
The main proposals in the Bill
aim to:
-
restructure citizenship law to make it more
coherent, accessible and easier to use;
-
increase access to citizenship by simplifying provisions
and changing the rules relating to:
-
citizenship by descent;
-
resumption of renounced citizenship;
-
strengthen protection of national security by:
-
extending residence requirements by 12 months to
three years;
-
requiring that the Minister be satisfied of an
applicant's identity;
-
regulating the collection, use and storage of
personal identifiers;
-
prohibiting a grant of citizenship where the
person is assessed as a security risk;
-
strengthening Ministerial discretion to revoke
citizenship where a serious criminal offence has been committed.
Preamble
2.3
The Preamble to the Bill
remains largely the same as that contained in the 1948 Act. The Preamble
expresses Parliament's recognition that Australian citizenship represents
membership of the community of the Commonwealth; and that Australian
citizenship is a common bond that unites all Australians in a reciprocal
relationship of rights and obligations, while respecting their diversity. A
citizen is entitled to enjoy these rights and undertakes to accept the
obligation to pledge loyalty to Australia
and its people; share their democratic beliefs; respect their rights and
liberties; and uphold and obey the laws of Australia.
Part 1 – Preliminary Matters
2.4
Part 1 of the Bill deals
with definitions and a number other preliminary matters, including important
concepts used in Part 2 of the Bill. Section 4
defines 'Australian citizen' to mean a person who is an Australian citizen
under Division 1 or 2 of Part 2. A note to section 4 indicates that a person
who is an Australian citizen under the 1948 Act immediately before the
commencement day is taken to be an Australian citizen under the 2005 Act.[5]
2.5
Subsection 10(1) provides that a personal identifier is
any of the following:
-
fingerprints or handprints of a person
(including those taken using paper and ink or digital live-scanning
technologies):
-
a measurement of a person's height and weight;
-
a photograph or other image of a person's face
and shoulders;
-
an iris scan;
-
a person's signature;
-
any other identifier prescribed by the
regulations (except an intimate forensic procedure within the meaning of s.23WA
of the Crimes Act 1914).
2.6
Subsection 10(2) establishes the regulation making
power in respect of personal identifiers and qualifies that power by requiring
that the Minister must be satisfied that:
-
obtaining the identifier would not involve
carrying out an intimate forensic procedure;
-
the identifier is an image of, or a measurement
or recording of, an external part of the body; and
-
obtaining the identifier will promote one or
more of the following purposes:
-
assist in the identification of, and to authenticate
the identity of, a person making an application under Part 2;
-
combating document and identity fraud in
citizenship matters;
-
complementing anti-people smuggling measures.
Part 2 - Australian Citizenship
Division 1 – Automatic acquisition of Australian citizenship
2.7
Part 2 of the Bill
contains the substantive provisions which regulate the acquisition, resumption
and cessation of Australian citizenship.
2.8
Division 1 outlines
those circumstances where a person will automatically acquire Australian citizenship
by operation of law. Proposed
section 12 clarifies that Australian citizenship is not automatic by reason of a
person being born in Australia.
Paragraph 12(1) (a) provides that a person born in Australia
is an Australian citizen if and only if they have a parent who is either an
Australian citizen, or a permanent resident, at the time of their birth.
Paragraph 12(1) (b) provides that a person born in Australia
is an Australian citizen if and only if the person is ordinarily resident in
Australian throughout the period of 10 years beginning on the day of the
person's birth.[6]
2.9
Proposed sections 13, 14 and 15 deal with automatic acquisition
of citizenship of people who are adopted, abandoned or by incorporation of
territory.
Division 2 – Subdivision A – Acquisition of Australian citizenship by
descent
2.10
Division 2 regulates
the acquisition of citizenship by application. Subdivision A deals with citizenship by descent. The previous requirement that children
born overseas must be registered for citizenship by descent within 25 years has
been removed.
2.11
Proposed subsection
16(1) provides that a person may make an application to the Minister to become
an Australian citizen. Subsection 16(2) provides that a person born overseas on
or after 26 January 1949
may apply for citizenship by descent and sets out the criteria, which include a
requirement that the person:
-
must have had a parent who was an Australian
citizen at the time of their birth; and
-
if the applicant is over 18 he or she must be of
good character.
2.12
Additional eligibility requirements need to be met by
persons whose parent(s) gained Australian citizenship by descent, namely:
-
the parent has been present in Australia for at
least 2 years at any time before the person makes the application; or
-
the applicant is stateless at the time of the
application.
2.13
Proposed section 17 requires that where the person
satisfies the eligibility criteria the Minister must approve an application for
citizenship by descent subject to the following qualifications:
-
the Minister must be satisfied of the identity
of the person;[7]
-
the Minister must not approve citizenship where
an adverse security assessment or a qualified security assessment is in force
under the Australian Security
Intelligence Organisation Act 1979 (ASIO Act) that the person is directly
or indirectly a risk to security within the meaning of section 4 of that Act;[8]
-
if the person has previously ceased to be a
citizen, that more than 12 months has lapsed since day the person ceased to be
a citizen.[9]
Division 2 – Subdivision B – Acquisition of Australian citizenship by
conferral
2.14
Subdivision B provides for citizenship by conferral.
2.15
Proposed section 21 sets out the eligibility criteria. Proposed
section 22 increases the residential qualifying period from the existing requirement
(that a person must be present in Australia as a permanent resident for not
less than two years in the previous five year period) to not less than three
years in the previous five years period. The requirement that an applicant must
be resident in Australia
for twelve months in the two years immediately preceding the application
remains unchanged from former section 13 of the 1948 Act.
2.16
The Minister has a discretion to waive the permanent residency
requirements in certain circumstances where:
-
a temporary entrant resident in Australia would
suffer significant hardship or disadvantage if a period of that residency was
not counted as a period of permanent residency;[10]
-
a temporary entrant resident in Australia who has
been engaged in activities beneficial to Australia may have twelve months of
that residency counted as permanent residency;[11]
or
-
a person who has resided as a permanent resident
for at least one year in Australia and has been engaged in activity 'beneficial
to Australia' while outside the country, and would suffer hardship if the
period of absence from Australia (as a permanent resident) is not taken into
account.[12]
2.17
The spouse of an Australian citizen must meet the same
eligibility criteria as other adult applicants. However, the Minister has the discretion
to waive residency requirements for a spouse, widow or widower.[13] Spouse includes de-facto spouse but
does not include same sex partners.[14]
2.18
Proposed section 24 is equivalent to existing section
17, in that it:
-
precludes the Minister from approving an
application for citizenship unless satisfied of the person's identity;[15] and
-
provides that the Minister must not approve
citizenship where an adverse security assessment or a qualified security
assessment is in force under the ASIO Act
that the person is directly or indirectly a risk to security within the
meaning of section 4 of that Act.[16]
2.19
In addition, proposed section 24 provides that the
Minister must not approve citizenship if, at the time of the application:
-
proceedings for an offence against Australian
law are pending (including appeal or review);
-
the person is confined to a prison in Australia;
-
for a period of two years after the expiration
of a 'serious prison sentence';[17] or
-
if the person is a 'serious repeat offender' –
for a period of ten years after the expiration of a serious prison sentence;[18]
-
during a period of parole or licence;
-
during a period when the person has been
released from imprisonment by a court on conditions relating to the person's
behaviour;
-
during a period that a court does not impose a
sentence of imprisonment but releases the person subject to conditions;
-
during a period that a person is confined in a
psychiatric institution under a court order arising from proceedings for an
offence against an Australian law.
2.20
The Minister also has a residual discretion to refuse
to approve a person's application for citizenship despite fulfilling the
eligibility criteria.[19] There are no
statutory criteria for the exercise of that discretion.
2.21
Proposed section 26 requires a person to make a pledge
of commitment unless the person is under 16 years or has a permanent physical
or mental incapacity at the time of making the application. Section 27 provides
for how the pledge is to be made.
Division 2 – Subdivision C – Resuming citizenship
2.22
Proposed section
29 simplifies the resumption provisions of the 1948 Act and expands those
provisions to make resumption of citizenship dependent principally on the
requirement that the person be of good character.
2.23
Subsection 29(2) provides that a person may be eligible
to apply for resumption of citizenship who previously renounced citizenship in
order to:
-
acquire or retain the nationality or citizenship
of a foreign country to avoid suffering significant hardship or detriment; or
-
where the person is a child of a responsible
parent who renounced citizenship.
2.24
Subsection 29(3) enables people who lost citizenship
under certain provisions of the 1948 Act to apply for citizenship provided the
Minister is satisfied they are of good character. This provision removes the
pre-existing barrier to resumption that a child who lost citizenship must apply
for resumption of citizenship before the age of 25 (section 23AB (1)(b) of the
1948 Act).
2.25
Proposed section 30 provides that the Minister:
-
has a residual discretion to refuse an
application to resume Australian citizenship despite the person being eligible
to do so;[20]
-
must be satisfied of the person's identity;[21]
2.26
However, the Minister must not approve citizenship
where an adverse security assessment or a qualified security assessment is in
force under the ASIO Act that the
person is directly or indirectly a risk to security within the meaning of
section 4 of that Act.[22]
Division 3 – Cessation of Australian
citizenship
2.27
Proposed section 33 provides for the renunciation of
citizenship. Renunciation must be done by application to the Minister. The
Minister must approve the person renouncing their citizenship if the Minister
is satisfied that the person is 18 years of age and is a national of another
country at the time; or the person was born or is ordinarily resident in a
foreign country and, because of the laws of that country, is prevented from acquiring
citizenship because of their Australian citizenship.[23]
2.28
There are a number of additional limitations on the
Minister's power to approve renunciation. The Minister must not approve
renunciation:
-
unless the Minister is satisfied of the identity
of the person;[24]
-
where it would not be in the interests of
Australia to do so;[25]
-
where the person would become stateless.[26]
2.29
Proposed section 34 empowers the Minister to deprive a
person of Australian citizenship acquired by descent or conferral where the
person obtained their citizenship by migration fraud or third party migration
fraud.[27] The Minister must also be
satisfied that it would be contrary to the public interest for the person to
remain an Australian citizen.[28]
2.30
A person who acquires citizenship by conferral may be
deprived of citizenship if, after making their application, he or she is
convicted of a 'serious criminal offence' committed any time before becoming a
citizen.[29] The provision applies to
offences committed against an Australian or a foreign law before the person
became an Australian citizen and for which the person has been sentenced to
death or to 'a serious prison sentence'.[30]
Subsection 34(3) qualifies the Minister's discretion and is intended to prevent
revocation of Australian citizenship where such a person would become
stateless.[31]
2.31
A decision to revoke citizenship under section 34 is
subject to merit review.[32]
2.32
Under proposed section 35, a person ceases to be an
Australian citizen if he or she is a citizen of another country and serves in
the armed forces of a foreign country at war with Australia.
Citizenship ceases at the time the person commenced their service.
2.33
Proposed subsection 36(1) confers on the Minister a
discretion to revoke the citizenship of a child where the citizenship of the child's
'responsible parent' ceases under sections 33, 34 or 35 and the child is under
18 years of age at that time.[33] The
discretion does not apply where there is another responsible parent who is an
Australian citizen or the Minister is satisfied the child would become
stateless.[34]
Division 5 – Personal Identifiers
2.34
As noted above, the Bill
introduces a new requirement that the Minister must not approve the person
becoming an Australian citizen unless satisfied of the person's identity.[35] Proposed section 10 sets out the type
of 'personal identifiers' for the purposes of the Bill
(see paragraph 2.5 above). Proposed paragraph 10(1)(f) provides that regulations
may prescribe other identifiers, provided that the collection of further
identifiers will promote additional
purposes outlined in subparagraphs 10(2)(c)(i), (ii) and (iii) (see paragraph
2.6 above).
2.35
Division 5 sets out the legislative scheme for collection,
disclosure and storage of personal identifiers. Proposed section 40 provides
for Ministerial delegation of the authority to request one or more personal
identifiers. Proposed section 41 enables the procedures and requirements that
apply to the provision of personal identifiers to be prescribed by regulation.
2.36
Under proposed subsection 42(3) and (4) the Minister
may authorise access to identifying information to identify the person for the
purposes of the Bill and other purposes,
including:
-
the making of a decision under the Migration Act 1958 or its regulations;
and
-
complying with Australian laws.[36]
2.37
Proposed section 43 regulates the scope of 'permitted
disclosures'. Permitted disclosures include disclosure:
-
for the purpose of data matching in order to
identify, or authenticate the identity of, a person for the purposes of this
Act;[37] and
-
for the purpose of making identifying
information available to the person to whom it relates.[38]
2.38
Permitted disclosures also include disclosures that:
-
take place under an arrangement entered into
with an agency of the Commonwealth, or with a State or Territory or an agency
of a State or Territory, for the exchange of identifying information;[39]
-
is for the purpose of a proceeding, before a
court or tribunal, relating to the person to whom the identifying information
in question relates.[40]
2.39
Paragraphs 43(3)(a) and (b) purport to prevent the
disclosure of personal identifying information for the purpose of the
investigation or prosecution of a offence against Australian law.
2.40
Proposed subsection 42 (1) makes it an offence to have
unauthorised access to personal identifying information, unless the access was
through a permitted disclosure. The defendant bears an evidential burden in
respect of this offence.[41] Proposed
subsection 43(1) makes it an offence to cause disclosure of identifying
information that is not a permitted disclosure under the Bill.
Both offences carry a penalty of up 2 years imprisonment or 120 penalty units
or both.
Review rights
2.41
Proposed section 52 provides for the right of merits
review in the Administrative Appeals Tribunal (AAT) for review of decisions of
the Minister to refuse to approve a person becoming an Australia
citizen; refusing approval to resume Australian citizenship; and refusing
approval for a person to renounce Australian citizenship and a decision to
revoke a person's citizenship. Subsection 52(2) restricts the right to have
reviewed a decision not to confer citizenship under section 24 to permanent
residents, except where the decision relates to an applicant who is under the
age of 18 years.
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