The proposed changes
As noted in the previous chapter, Mr Fletcher's second reading
speech described the proposed amendments as falling into 'three broad themes'.
This chapter examines each theme—and the associated amendments—in turn.
'Strengthening program integrity'
The first 'theme' of amendments is 'strengthening program integrity'.
This theme includes measures to:
extend character requirements to minors;
provide that only minors may become citizens by adoption;
extend the bar on citizenship for offence-related reasons to all
methods of obtaining citizenship by application;
extend the power to cancel an approval to become a citizen; and
extend the power to revoke citizenship in two circumstances,
where a person is incorrectly registered as a citizen by descent;
where the minister is satisfied that some fraud or
misrepresentation has occurred.
Extending character requirements to
At present, subsection 16(2) of the Australian Citizenship Act sets
out the criteria for a grant of citizenship to persons who were born outside
Australia but who have at least one Australian parent. Subsection 16(2)(c)
provides that the minister must be satisfied of such a person's good character:
if the person has ever been a national or citizen of any country
or if there are serious reasons for considering that the person has committed a
serious crime; and
if the person was aged 18 or over at the time that they applied
Similarly, if a person applies for citizenship as a person born to a
former Australian citizen or following adoption in accordance with the Hague
Convention on Intercountry Adoption or if a person seeks to resume Australian
citizenship, the minister must be satisfied that the person is of good
character if the person was aged 18 or over at the time that they applied for
The Act does not define the phrase 'good character'.
Items 17, 21, 26, 58 and 60 would remove the age limitations in
these provisions, thereby requiring the minister to be satisfied that child
applicants are also of good character. Likewise, Item 25 would insert a
good character requirement into the criteria for minors holding permanent visas
to become Australian citizens under subsection 21(5) of the Act.
The EM states that:
The amendment recognises the fact that people under the age
of 18 sometimes have significant character concerns and/or have committed
particularly serious crimes, and that the Minister should therefore have the
discretion to refuse to approve such a person becoming an Australian citizen
under section 17 of the Act. In practice, the effect of the amendment is that
the Minister would now seek criminal history records for 16-17 year-olds.
However, if the Minister becomes aware of an applicant who has character issues
and is aged younger than 16, it would be possible to assess that applicant
against the character requirement.
Limiting citizenship by adoption to
Item 13 would restrict the automatic conferral of citizenship by
adoption to circumstances where the adoption process began when the adopted
person was under the age of 18. The EM explains that:
This amendment seeks to prevent people from becoming
Australian citizens under section 13 of the Act by being adopted in Australia
as adults. The amendment is particularly concerned with the potential for
adults to seek to be adopted in Australia in order to circumvent the provisions
of the Migration Act (for example, to avoid being removed from Australia after
their visa has been cancelled).
Extending the bar on citizenship
for offence-related reasons
At present, the Australian Citizenship Act sets out the
circumstances in which the minister must not approve a person's application to
become an Australian citizen:
- by descent;
following adoption in accordance with the Hague Convention on
At present, these include (for all four types of application) the
minister not being satisfied of the person's identity, and the person being a
specified threat to national security.
For citizenship by conferral only, the minister is also required not to
approve the application for citizenship for a number of offence-related
Items 44 and 45 would amend the offence-related reasons applicable to
citizenship by conferral and Items 18, 22, and 61 would insert
offence-related reasons for the other three types of application such that all
four types of application would have identical offence-related reasons for not
approving an application for citizenship, namely:
The Minister must not approve the person becoming an
Australian citizen at a time:
- when proceedings for an
offence against an Australian law (including proceedings by way of appeal or
review) are pending in relation to the person; or
- when the person is confined to
a prison in Australia; or
- during the period of 2 years
after the end of any period during which the person has been confined to a
prison in Australia because of the imposition on the person of a serious prison
- if the person is a serious
in relation to a serious prison sentence—during the period of 10 years after
the end of any period during which the person has been confined to a prison in
Australia because of the imposition of that sentence; or
- if the person has been
released from serving the whole or a part of a sentence of imprisonment on
parole or licence—during any period during which action can be taken under an
Australian law to require the person to serve the whole or a part of that
- if the person:
- has been released by a court
from serving the whole or a part of a sentence of imprisonment; and
- has been so released subject
to conditions relating to the person’s behaviour;
during any period during which
action can be taken against the person under an Australian law because of a
breach of any of those conditions;
- if, in respect of proceedings
for an offence against an Australian law in relation to the person, a court
releases the person subject to conditions relating to the person’s
behaviour—during any period during which action can be taken against the person
under an Australian law because of a breach of any of those conditions;
- during any period during which
the person is confined in a psychiatric institution by order of a court made in
connection with proceedings for an offence against an Australian law in
relation to the person; or
- when the person is subject to
an order of a court for home detention, where the order was made in connection
with proceedings for an offence against an Australian law in relation to the
- when the person is subject to
an order of a court requiring the person to participate in:
where the order was made in
connection with proceedings for an offence against an Australian law in
relation to the person.
- a residential drug
rehabilitation scheme; or
- a residential program for
the mentally ill; or
- any other residential
scheme or program;
The EM explains that these amendments aim 'to bring consistency to the
citizenship programme by applying the bar on approval for criminal offences to
all application streams'.
Extending the power to cancel an
approval to become a citizen
Subdivision B of Division 2 of Part 2 of the Australian
Citizenship Act is entitled 'Citizenship by conferral'. As explained in the
simplified outline of the subdivision, there are seven ways in which a person
can become an Australian citizen by conferral, the criteria for which are set
out in section 21 as follows:
You may be eligible to become an Australian citizen under
this Subdivision in 7 situations:
you satisfy the general eligibility criteria and have successfully
completed a citizenship test: see subsections 21(2) and (2A); or
you have a permanent or enduring physical or mental incapacity: see
subsection 21(3); or
you are aged 60 or over or have a hearing, speech or sight impairment:
see subsection 21(4); or
you are aged under 18: see subsection 21(5); or
you were born to a former Australian citizen: see subsection 21(6);
you were born in Papua: see subsection 21(7); or
you are a stateless person: see subsection 21(8).
Section 25 of the Act concerns the circumstances in which the
minister may cancel an approval for a person to become an Australian citizen by
conferral (if their Australian citizenship has not yet commenced because, for
example, they have not yet made a pledge of commitment). The two key
circumstances in which this can occur are (a) where the minister becomes
satisfied that certain applicants do not meet certain key criteria for the
grant of citizenship, or (b) where the person fails to make a pledge of
commitment within 12 months of receiving notice of the approval. The approval
for children must also be cancelled in certain circumstances where their
parents' approval is cancelled.
Item 49 would amend the first of these two circumstances by:
applying it to different categories of citizenship by conferral
(persons under 18 would be liable to cancellation, whereas persons with
enduring physical or mental incapacity would not); and
expanding the citizenship criteria to which it applies.
Item 47 would insert a new mandatory cancellation power, which
would require the minister to cancel an approval if:
the person had not yet become an Australia citizen;
the approval was given on the basis that the person:
satisfied the general eligibility criteria and successfully
completed a citizenship test (as detailed in subsection 21(2));
was aged 60 or over or had a hearing, speech or sight impairment
(as detailed in subsection 21(4)); or
was under the age of 18 (as detailed in subsection 21(5));
the minister is no longer satisfied of the person's identity or
the person has been assessed as posing certain security-related risks to
If the minister is considering cancelling an approval under any of these
powers, Item 55 would, if passed, allow the minister to prevent the person
from making a pledge of commitment (and thereby becoming an Australian citizen)
for a specified period. The EM explains that 'if the Minister requires
additional time to investigate matters to determine whether to cancel the
approval of a person as an Australian citizen under section 25 of the Act, it
is intended that the Minister can defer the person making the pledge of commitment
to prevent a person becoming an Australian citizen during this period'.
Item 56 would extend the maximum period for which the minister
could delay a person's pledge of commitment (on the grounds discussed above and
on the grounds that the person's visa is liable to be cancelled or that the
person has been or may be charged with an offence) from one year to two.
Extending the power to revoke
There are, broadly speaking, three ways in which a person can cease to
be an Australian citizen: by renunciation, by revocation, and by service in the
armed forces of a country at war with Australia. At present, the minister may
revoke a person's citizenship:
in certain circumstances of criminality or fraud if the minister
is satisfied that 'it would be contrary to the public interest for the person
to remain an Australian citizen';
if the person fails to comply with special residence
if the person is a child and their responsible parent ceases to
be an Australian citizen.
The first two circumstances do not apply where the person automatically
became an Australian citizen.
The Bill would make two key amendments to these provisions.
Persons incorrectly registered as
citizens by descent
First, Item 64 would add a new circumstance in which citizenship
may be revoked, namely where the minister has approved a person being
registered as a citizen by descent and the minister is subsequently satisfied
that the approval should not have been given. It would not allow the minister
to revoke the person's citizenship if to do so would render the person
At present, section 19A provides that a person does not become a
citizen by descent (even if the minister approves the person's application for
citizenship) unless they meet the descent requirement (that is, because a
parent of theirs was an Australian citizen at birth or became an Australian
citizen on 26 January 1949). Item 19 would, if passed, repeal
There are two key differences between current section 19A and the
proposed new revocation power. First, the current section operates as a matter
of law, whereas the proposed provision would give the minister a discretion.
The EM explains that:
...there have been a number of cases where a person was
registered as an Australian citizen by descent and has been found not to have
been eligible to be approved as an Australian citizen by descent (and
consequently, to have never been a citizen). The fact that section 19A of the
Act is an operation of law provision means that the Minister has no discretion
to allow these people to retain their Australian citizenship. Once it is
determined that a person was never entitled to be registered as an Australian
citizen by descent, then a finding of fact is made that the person is not and
never was a citizen, regardless of matters such as the age of the person,
whether the person was an innocent party to the incorrect registration and the
extent to which the person has integrated into the Australian community.
Giving the minister the discretion to revoke citizenship in such
circumstances is intended to avoid these undesirable consequences.
Secondly, whereas the current section only applies to persons who do not
qualify for citizenship by descent because they do not meet the descent
criterion, the new provision would apply to any criterion for receiving
Australian citizenship by descent. This would mean, for example, that the
minister could revoke a person's citizenship if he or she were to become
satisfied that the person was not of good character at the time that they were
registered as a citizen by descent.
Revocation for fraud or
misrepresentation without conviction
The second amendment, made by Item 66, would expand the minister's
power to revoke a person's Australian citizenship when satisfied that the
person became a citizen as a result of fraud or misrepresentation by allowing
revocation without a prior criminal conviction. At present, section 34
allows the minister to revoke a person's citizenship if the person became a
citizen by descent, by conferral or following adoption in accordance with the
Hague Convention on Intercountry Adoption, if the person (or another person)
has been convicted of certain offences connected with the minister's approval,
and if the minister is satisfied that 'it would be contrary to the public
interest for the person to remain an Australian citizen'. In the case of a
person granted citizenship by conferral, further offences are specified that
need not be connected with the approval.
The new provision—section 34AA—would allow the minister to revoke a
person's citizenship if:
the person became a citizen by descent, by conferral or following
adoption in accordance with the Hague Convention on Intercountry Adoption; and
the minister is satisfied that the minister's approval for the
person to become a citizen was obtained as a result of certain types of fraud
or misrepresentation; and
the minister is satisfied that revoking the person's citizenship
is in the national interest.
The fraud may have been committed by any person and need not have
constituted an offence, or part of an offence, but the revocation must occur
within ten years of the fraud or misrepresentation.
Mr Fletcher's second reading speech explained the necessity of
enabling the minister to revoke citizenship for fraud or misrepresentation in
the absence of a conviction on the basis that '[l]aw enforcement agencies and
courts have limited capacity to prosecute all cases of fraud, or any other type
of criminal behaviour, thereby reducing the ability of the government to ensure
that high community expectations of behaviour are maintained in respect of
those who obtain Australian citizenship'.
'Underlining the importance of connection to Australia'
The second 'theme' of amendments nominated by Mr Fletcher in his second
reading speech was 'underlining the importance of connection to Australia'.
The amendments under this theme seek to:
restrict the operation of the 'ten year rule';
amend the definition of 'de facto partner' and insert a
definition of 'spouse';
clarify the general residence requirement;
clarify the position of abandoned children; and
extend citizenship to certain children outside Australia.
Restricting the operation of the
'ten year rule'
Section 12 of the Australian Citizenship Act provides for two
routes by which a person can acquire Australian citizenship by birth. The first
is where they were born in Australia and where one of their parents was an
Australian citizen or a permanent resident at the time of their birth. The
second route—which is referred to as the 'ten year rule'—is where the person
was born in Australia and they are 'ordinarily resident in Australia' for the
first ten years of their life.
There is an exception to both routes for the children of enemy aliens born in
territory occupied by the enemy.
Item 12 would—if passed—restrict the operation of the ten year rule
in four ways. First, the ten year rule would not be available to any child who
was present in Australia as an unlawful non-citizen during that ten-year
The EM does not provide a policy justification for this amendment, but the
Department wrote to the committee explaining that:
The purpose of this proposed amendment is to ensure that
citizenship by operation of law is only accorded to those persons who have maintained
a lawful right to remain in Australia during the ten years from their birth.
Second, the ten year rule would not be available to any child who,
during that ten-year period, was outside Australia and, whilst outside
Australia, did not hold a visa permitting them to 'travel to, enter and remain
This exception does not apply to children who were citizens of New Zealand
throughout their absence from Australia.
The EM does not provide a policy justification for this amendment, but it would
appear to be covered by the justification set out in the previous paragraph.
Third, the ten year rule would not be available to any child with a
did not hold a 'substantive visa' at the time of the child's
entered Australia on one or more occasions before the child's
at any time between the parent's last entry into Australia and
the date of the child's birth, the parent was in Australia as an unlawful
The EM does not provide a policy justification for this amendment. This
amendment would not appear to be covered by the justification quoted in
paragraph 2.33 above because it would prevent children who have 'maintained
a lawful right to remain in Australia during the ten years from their birth'
from becoming a citizen.
Finally, the ten year rule would not be available to the children of any
person who, during those ten years, was entitled to any privileges or
immunities under the Diplomatic Privileges and Immunities Act 1967, the Consular
Privileges and Immunities Act 1972, the International Organisations
(Privileges and Immunities) Act 1963 or the Overseas Missions
(Privileges and Immunities) Act 1995.
The EM states that this amendment 'reflects the policy position' that the
children of foreign diplomats should not, without more, be entitled to
This final exception would have no impact on the citizenship rights of
children born to a parent who is an Australian citizen or permanent resident
where that parent or the other parent were entitled to any privileges or
immunities under any of the above legislation.
De facto partners and spouses
At present, 'de facto partner' is defined in section 3 of the Australian
Citizenship Act to have the same meaning as in the Acts Interpretation
Act 1901. 'Spouse' is not defined in the Australian Citizenship Act.
Items 4 and 6 would—if passed—result in both phrases having the same
meaning as in the Migration Act 1958.
The Migration Act provides that two people are spouses if they:
are in a valid marriage with one another; and
'have a mutual commitment to a shared life as husband and wife to
the exclusion of all others'; and
have a 'genuine and continuing relationship'; and
live together or 'do not live separately and apart on a permanent
The Migration Act provides that two people are de facto partners
if they are not spouses but meet the other criteria outlined above and are not
related by family.
The EM explains that:
The definition in the Migration Act makes more explicit
reference to the need for a de facto couple to be in a relationship "to
the exclusion of all others", for their relationship to be "genuine
and continuing" and for them not to be living "permanently
apart". These considerations are also relevant to the Government's policy
intent in relation to the Act.
Regulations made under the Migration Act may provide for the
manner in which the criteria for spouses and de facto partners are determined
The present regulations made for this purpose only apply, at present, to visa
Clarifying the general residence
A person applying for citizenship by certain types of conferral is only
eligible if he or she 'satisfies the general residence requirement (see
section 22) or the special residence requirement (see section 22A or
22B), or satisfies the defence service requirement (see section 23), at
the time the person made the application'.
The 'general residence requirement' is met if a person was in Australia
for the four years before they made the application for citizenship, if they
were not an unlawful non-citizen at any time during that four-year period and
if they were present in Australia as a permanent resident for the year before
they made the application.
(This rule is not as strict as it seems, as there are certain circumstances in
which people will be deemed to have been—or not to have been—in Australia in
the lead-up to their application for citizenship.)
Item 27 would amend this rule, in the words of the EM, 'to clarify
exactly when the 4 year period of a person's residence in Australia commences
for the purposes of paragraph 22(1)(a) of the Act'.
(In fact, paragraph 22(1)(a)—both before and after the proposed
amendments—concerns the person's presence, not residence, in
If the amendment were to pass, the new general residence requirements
would be that the person applying for citizenship:
be in Australia (except as an unlawful non-citizen) 'on the first
day (the start day) of the 4-year period ending on the day before
the day the person made the application'; or
on the start day, be outside Australia and be the holder
of a visa entitling them to travel to, enter and remain in Australia so long
as the visa was granted when the person was in Australia; or
on the start day, be outside Australia and be the holder
of a visa entitling them to travel to, enter and remain in Australia even if
the visa was granted outside Australia so long as the person had
previously entered Australia as the holder of that visa; and
must be in Australia 'throughout the period (the relevant
period) beginning on the day after the start day and ending on the day
before the day the person made the application'; and
must not be in Australia as a non-citizen at any time during the
relevant period; and
must be in Australia as a permanent resident for the year before
they made the application.
The EM states that '[t]his amendment is a response to an interpretation
that has been taken regarding current paragraph 22(1)(a) that there is no clear
requirement that a person must be in Australia on the exact date 4 years before
making their application for Australian citizenship in order to meet the
general residence requirement'.
This appears to be referring (although this is nowhere made clear) to the possibility
that, because of the subsequent provisions of section 22 that deem people
to be in Australia when they are not, they need not physically be in Australia
at the commencement of the four-year period.
The EM also explains that this change 'reflects the policy position that
there are specific circumstances where a person will meet the residence
requirement even if they were not physically present in Australia on the start
Item 33 would allow the minister to prescribe by legislative
instrument the circumstances in which the minister may treat a period as a
period in which an applicant was not in Australia as an unlawful
non-citizen. The EM explains that the circumstances prescribed could include,
but are not limited to, 'situations where a person has unintentionally become
an unlawful non-citizen for a brief period'.
Similar powers are provided in respect of the special residence requirements.
Item 35 would amend one of the exceptions to the general residence
requirement, namely the minister's discretion to treat the spouse, de facto
partner or surviving spouse or de facto partner as having been in Australia
(including as a permanent resident) when they were not, provided that certain
conditions are met. The amendment clarifies that the person must have been in
Australia for at least 365 days of the four years prior to the making of the
application. Mr Fletcher's second reading speech explained that this
minimum period was required because '[i]t is important that applicants spend a
sufficient amount of time here to understand what being Australian means'.
This 365-day requirement would not apply, however, if the person was working
outside Australia as a Commonwealth officer or a state or territory officer
throughout the period, in which circumstance that person would be treated as
having been in Australia. Item 36 provides the definitions of
'Commonwealth officer', 'State or Territory officer' and 'surviving spouse or
de facto partner'.
Clarifying the position of
At present, section 14 of the Australian Citizenship Act provides
that '[a] person is an Australian citizen if the person is found abandoned in
Australia as a child, unless and until the contrary is proved'.
Item 14 would repeal section 14. Item 12 would replace it
with new subsections 12(8) and 12(9). Proposed subsection 12(8) would
provide that a child found abandoned in Australia would be presumed to have
been born in Australia to a parent who was an Australian citizen or permanent
resident at the time of their birth (and would, therefore, be an Australian
citizen under subsection 12(1)(a)). Proposed subsection 12(9) would
provide that this presumption would apply 'unless and until it is proved' that
(a) the child was outside Australia at any time before they were found
abandoned, or (b) the child does not have a parent who was an Australian
citizen or permanent resident at the time of their birth.
The EM explains these amendments as follows:
80. Since the introduction of the Act in 2007, section 14 has
not accurately reflected the historical basis for the introduction of the
provision on abandoned children. Current section 14 is the successor to a
provision introduced into the Australian Citizenship Act 1948 (the 1948
Act) to meet Australia's obligations under Article 2 of the Convention on the
Reduction of Statelessness (CRS). Articles 2 [sic] of the CRS provides that a
foundling found in the territory of a Contracting State shall, in the absence
of proof to the contrary, be considered to have been born within that territory
of parents possessing the nationality of that State.
81. Article 2 of the CRS generally requires that a child
found abandoned be dealt with as a citizen by birth unless and until it is
determined they are not a citizen by birth. Originally the 1948 Act reflected
82. The amendment in new subsection 12(8) of the Act
clarifies the intention of the abandoned child provision and ensures the
language more closely reflects the original intent. The amendments provide that
a child found abandoned in Australia is presumed to be a citizen by birth as
provided in current paragraph 12(1)(a) of the Act. That is, the child is
presumed to be born in Australia with a parent who is an Australian citizen, or
a permanent resident at the time the child is born.
83. New subsection 12(9) of the Act provides for the
exceptions to the presumption in new subsection 12(8). New paragraph 12(9)(a)
provides that the presumption of citizenship by birth, in new subsection 12(8),
does not apply if the child is known to be physically outside Australia at any
time before the child was found abandoned in Australia. If the child is known
to have been outside Australia, then the child has either arrived in Australia
lawfully and its identity and nationality will be known, or it will have
arrived as an unlawful non-citizen. New paragraph 12(9)(b) provides that the
presumption of citizenship by birth does not apply if the child does not meet
the requirements of citizenship by birth in paragraph 12(1)(a) of the Act. That
is, if it has become clear that the child was not born in Australia, or if the
child was born in Australia a parent of the child was not an Australian citizen
or a permanent resident at the time of the child's birth.
Extending citizenship to certain
children outside Australia
At present, subsection 21(5) provides that a person is eligible to
become an Australian citizen if they are under the age of 18 at the time of
their application and if they are a permanent resident at the time of the
application and at the time of the minister's decision on the
application. The EM explains that:
Subsection 21(5) of the Act as currently drafted has the
effect of preventing a person aged under 18 who is outside Australia, has never
been in Australia and is the holder of a permanent visa (for example, an
Adoption (subclass 102) visa) from becoming an Australian citizen without first
entering Australia. This is not consistent with the policy intent.
Item 25 would amend these criteria to allow persons who hold a
prescribed type of permanent visa, who have not entered Australia as the holder
of that visa and who have an Australian parent also to be eligible for
Australian citizenship by conferral. Mr Fletcher's second reading speech
explained that this change 'improves access to citizenship by conferral for
children who are granted an adoption visa overseas and whose adoption is
finalised overseas, allowing them to enter Australia as citizens', '[i]n line
with the Prime Minister's commitment to facilitate adoptions'.
The third 'theme' of amendments nominated by Mr Fletcher in his second
reading speech was 'improving decision-making'.
The amendments under this theme would—if passed—restrict the review of decisions
made under the Act by the Administrative Appeals Tribunal (AAT) and enable
information gathered for the purposes of the Australian Citizenship Act to
be used for the purposes of the Migration Act, and vice versa.
Restricting review of decisions by
the Administrative Appeals Tribunal
The Bill seeks to restrict the review of decisions by the AAT in two
ways: by prohibiting review of certain decisions made by the minister, and by
allowing the minister to set aside decisions of the AAT.
Excluding review of the minister's
At present, subsection 52(1) lists seven types of decision made
under the Australian Citizenship Act that can be reviewed by the AAT.
They all relate to refusals to approve a person becoming an Australian citizen,
cancellation of such a person's approval, refusals to approve a person
renouncing their Australian citizenship and decisions to revoke a person's
Item 72 would—if passed—prevent any of these decisions from being
reviewed by the AAT if the minister made the decision personally and included a
statement that he or she was satisfied that the decision was made in the public
interest in his or her notice to the person.
Mr Fletcher's second reading speech explained that 'it is not
appropriate for merits review to be available in respect of decisions that have
been made by the minister personally'.
The EM notes that judicial review of these decisions would still be available
and explains as follows:
As an elected Member of Parliament, the Minister represents
the Australian community and has a particular insight into Australian community
standards and values and what is in Australia's public interest. As such, it is
not appropriate for an unelected administrative tribunal to review such a
personal decision of a Minister on the basis of merit, when that decision is
made in the public interest. As a matter of practice it is expected that only
appropriate cases will be brought to the Minister's personal attention, so that
merits review is not excluded as a matter of course.
The Department of Immigration and Border Protection explained that
successive governments have only allowed the minister to make revocation
decisions, so it would appear that these decisions would not be subject to
It should be noted that this provision would exclude all review
by the AAT of such decisions and would not merely exclude review of the
minister's determination that the decision was in the public interest.
Allowing the minister to set aside
decisions of the Administrative Appeals Tribunal
Item 73 would—if passed—insert sections 52A and 52B. Proposed
section 52A would provide that, if a delegate of the minister refuses to
approve a person becoming an Australian citizen or cancels such a person's
approval on character grounds and the AAT sets aside the decision, the minister
may set aside the decision of the AAT and make a decision to refuse or cancel
the approval, if satisfied that to do so is in the public interest. This
decision (by the minister) would not be subject to merits review.
The EM explains the amendment as follows:
451. In the last few years, the AAT has made three
significant decisions outside community standards, finding that people were of
good character despite having been convicted of child sexual offences,
manslaughter or people smuggling. Three other recent decisions of the AAT have
found people to have been of good character despite having committed domestic
452. In addition to the above specific instances, there is
the potential for some decisions made by the AAT on identity grounds to pose a
risk to the integrity of the citizenship programme. That is, a decision to
refuse to approve a person becoming an Australian citizen, or to cancel such
approval, where identity is the basis for that decision is critical to ensuring
that the value of Australian citizenship is not diminished. In addition, the
provision of a false identity is intrinsically related to the question of
whether the person is of good character.
453. Therefore, this amendment gives the Minister the power
to make a decision setting aside the Tribunal's decision and make a new
decision if the Minister is satisfied that it is in the public interest to do
so. This power of the Minister is restricted to decisions where the initial
decision of the delegate included the fact that the delegate was not satisfied
that the person was of good character at the time of the decision or was not
satisfied of the identity of the person. However, this does not need to be the
sole reason for the initial decision of the delegate.
Mr Fletcher's second reading speech explained that the amendments
that 'protect the minister's personal decisions from merits review and to allow
the minister to set aside decisions of the AAT in certain circumstances will
bring the minister's powers under the Citizenship Act in line with similar
powers under the Migration Act'.
Proposed section 52B would require the minister to table in
Parliament a statement of reasons each time he or she makes a decision
(a) that is not reviewable by the AAT because of the amendment brought
about by Item 72, or (b) to set aside a decision of the AAT under
proposed section 52A.
Use and disclosure of personal
Items 74 and 77 would insert a new section 53A into the Australian
Citizenship Act and a new section 488B into the Migration Act.
These would allow for the minister or specified public servants to disclose and
use information obtained under one of these Acts (or its regulations) for the
purposes of the other (and its regulations). Mr Fletcher's second reading
speech explained the desirability of this as follows:
Most applicants for citizenship have come to Australia as
migrants and the Department of Immigration and Border Protection has collected
personal information about them under the Migration Act. This personal
information is relevant when the person applies for citizenship. Likewise,
personal information collected about a person under the Citizenship Act can be
relevant if the department is considering whether to cancel the person's visa
after a citizenship application has been refused. To ensure that the use and
disclosure of personal information within the department complies with the
requirements of the Privacy Act 1988, the bill provides that personal
information collected under one act and associated regulations may be used and
disclosed for the purposes of the other act and associated regulations.
The EM explains that the Privacy Act 1988 applies to such
disclosure and use.
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