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AUSTRALIAN CITIZENSHIP BILL 2006 Explanatory Memorandum

AUSTRALIAN CITIZENSHIP BILL 2006

                         2004-2005-2006



 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA



                            SENATE




           AUSTRALIAN CITIZENSHIP BILL 2005



         REVISED EXPLANATORY MEMORANDUM




THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
            THE HOUSE OF REPRESENTATIVES
              TO THE BILL AS INTRODUCED




                    (Circulated by authority of the
          Minister for Immigration and Multicultural Affairs,
             Senator the Honourable Amanda Vanstone)


2 AUSTRALIAN CITIZENSHIP BILL 2005 OUTLINE The Australian Citizenship Bill 2005 ("the Bill") is intended to replace the Australian Citizenship Act 1948 ("the Act"). The Act was originally passed in 1948 and has been amended on a number of occasions since that time. In February 2000, the Australian Citizenship Council (`the ACC') presented its report entitled Australian Citizenship for a New Century. The ACC made 64 recommendations to the Australian Government relating to law, policy and promotion of citizenship in Australia. Most of the recommended legislative changes were made by the Australian Citizenship Legislation Amendment Act 2002 (`the 2002 Act'). The only outstanding legislative recommendation adopted by the government is to improve presentation of the Act so that it is `logically organised, numbered, consistent and with related matters dealt with together, and ensuring that the balance of matters dealt with between the Act and the Australian Citizenship Regulations conforms to modern standards.' On 7 July 2004, the Government announced a number of changes, which complemented the policy rationale behind the 2002 legislative changes and also sought to improve the consistency and integrity of the Act. These changes include: - providing former citizens who renounced their Australian citizenship to acquire or retain another citizenship, or to avoid significant hardship or detriment, the opportunity to resume their Australian citizenship, if they are of good character; - giving children of former Australian citizens who lost their citizenship under the former Section 17 of the Act the opportunity to apply for grant of Australian citizenship; - ensuring consistency and simplicity in the provisions relating to citizenship by descent; - raising the age for an exemption from the requirement to have a basic knowledge of the English language from 50 to 60; - requiring a spouse of an Australian citizen to meet the same requirements for grant as most adult applicants, although allowing wider discretion in relation to residence, where the spouse has a close association with Australia; - allowing de facto spouses to benefit from this wider discretion in some circumstances; and - amending the residence discretions to ensure integrity, equity and consistency in the citizenship process.


3 The Office of Parliamentary Counsel advised that replacement of the 1948 Act was highly desirable in view of the extent of the proposed changes to the Act, in particular the restructuring required to ensure that the legislation is accessible, easy to understand, logically organised and numbered, and conforms to modern standards in respect of the balance of matters dealt with between the Act and the associated regulations. The Bill replaces the Australian Citizenship Act 1948. There are three major changes proposed, as follows: I. Structure and location of the provisions The purpose is to ensure consistency throughout the Act. This includes changes in terminology, so that the provisions are consistent and easier to understand and apply. As an example: - most of the definitions are now in proposed Section 3 - the automatic citizenship provisions have been restructured into one Subdivision; - acquisition of Australian citizenship in Part 2 of the Act has been restructured and is given new terminology; ie Automatic Citizenship, Acquisition of Citizenship by Application, and Cessation of Citizenship; - Acquisition of citizenship by application has been further re-structured to include citizenship by descent, citizenship by conferral and resumption of citizenship; - the requirements for Acquisition of Citizenship have been ordered more clearly regarding citizenship by conferral; - the statelessness provisions have been restructured so that they are located with the related provisions; - evidence of Australian citizenship provisions have been combined into the one Division; - applications provisions have been combined into the one Section; and - notification of decision provisions have been combined into the one Section. II. Content The objective is to reflect changes in government policy. These are addressed in the following provisions: - Section 12 (citizenship by birth) 2. Subdivision A (citizenship by descent); 3. Section 21(4) (person aged over 60); 4. Section 21(6) (person born to former Australian citizen);


4 5. Section 21(7) (person born in Papua); 6. Section 22 (residence requirement) 7. Section 22(6) (Ministerial discretion - person in Australia would suffer significant hardship or disadvantage 8. Section 22(9) (Ministerial discretion - spouse, widow or widower of Australian citizen); 9. Section 26(2) (making the pledge of commitment after approval) 10. Subdivision C (resumption of citizenship); 11. Sections 34(1) and (2) (revocation and third party fraud); 12. Section 36 (children of responsible parents who cease to be citizens); 13. Sections 17, 24, 30 (minister's discretion: identity and security); and 14. Division 5 (personal identifiers) I. Repeal Certain provisions are no longer required and should be repealed. They include: (1) various definitions from Section 5, including "Australian consulate, Secretary, electronic communication, prescribed date, return endorsement" (2) Sections 13(9B) and 13(9E) (children applying on a parents application); (3) Sections 14 and 14A (deferral of consideration); (4) Section 32 (citizenship in doubt); and (5) Sections, 42, 43, 44, 44A, 46, 46A, 47 and 47A (about certificates - these Sections have been combined into Division 4 - Evidence of Australian citizenship). Following introduction of the Australian Citizenship Bill 2005 into the House of Representatives,, the Senate Legal and Constitutional Legislation Committee (the Senate Committee) made a number of recommendations in respect of the Bill in its report tabled on 27 February 2006. As a result, government sponsored amendments were made to the Bill in the House.. In particular, the amendments: - include a substantive provision which provides that a person who is a citizen under the Australian Citizenship Act 1948 is a citizen for the purposes of the new Act; - include simplified outlines explaining the operation of various parts of the Bill; - limit exclusion from citizenship on national security grounds, in respect of stateless people, to applicants who have been convicted of a national security offence in accordance with the Convention on the Reduction of Statelessness; - clarify when a child may make an application in his or her own right and when an application may be considered as part of the application of a responsible parent


5 - maintain all existing review rights under the Australian Citizenship Act 1948 by allowing people who apply for citizenship by conferral on the grounds of statelessness to have a right of review of a decision on that application; - amend the Preamble to recognise that Australian citizenship represents "full and" formal membership of the community of the Commonwealth of Australia; and - make a number of changes to the personal identifier provisions, resulting from a review of the provisions in the Bill and consultations with the Office of the Privacy Commissioner. The government sponsored amendments also implemented the Government's response to a recommendation made by the House of Representatives Standing Committee on Family and Human Services in its inquiry into the adoption of children from overseas. The Bill will allow for children adopted overseas by Australian citizens, under full and permanent Hague Convention arrangements, to be registered as Australian citizens. Amendments were also made to the original bill to give effect to the following policy changes: - changes to the residence requirements to require applicants to have been in Australia during the four years before making their application otherwise than as an unlawful non-citizen, with the last 12 months before the application being spent as a permanent resident (subject to certain exceptions); - include a discretion, similar to that available for spouses and de facto spouses of Australian citizens, for people granted permanent residence as the interdependent partner of an Australian citizen to count certain time spent overseas as a permanent resident as time spent in Australia.. In addition, there were amendments to achieve the following : - remove the specification that a written notice must be given to people requesting evidence of their Australian citizenship; - explicitly state that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to be so approved; - make subclause 19(2) a stand alone provision (subclause 19(2) makes it absolutely clear that a person born overseas is never taken to be a citizen unless they had an Australian citizen parent at the time of their birth); and - make minor technical amendments. FINANCIAL IMPACT STATEMENT These amendments will have minimal financial impact.


6 AUSTRALIAN CITIZENSHIP BILL 2005 NOTES ON INDIVIDUAL CLAUSES The preamble to the Act has been amended to ensure consistency with the change in terminology from `citizenship by grant' to `citizenship by conferral' (refer to Subdivision B of Division 2 of Part 2 of this Act). The Preamble also includes the words "full and" before "formal" in response to the Senate Committee's recommendation that the Preamble recognise that Australian citizenship represents "full and formal" membership of the community of the Commonwealth of Australia. Part 1 - Preliminary Clause 1 Short Title The short title by which this Act may be cited is the Australian Citizenship Act 2005. This Act replaces the Australian Citizenship Act 1948 and in doing so makes clearer, better structured and easier to understand law relating to citizenship in Australia. Clause 2 Commencement Clause 2(1) provides that clauses 1 and 2 and anything in this Act not elsewhere covered by the table commence on the day on which the Act receives the Royal Assent. It also provides that clauses 2A to 54 commence on a day to be fixed by Proclamation, however it also makes clear that if any of these provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. A note is provided at the end of the table to indicate that it only relates to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. Subclause 2(2) provides that column 3 of the table contains additional information that is not part of this Act. It explains that this information may be added to or edited in any published version of this Act.


7 Clause 2A Simplified Outline A simplified outline of the Bill is inserted in accordance with the recommendations of the Senate Committee's report on the Bill as introduced into the House of Representatives (the original Bill). The outline covers becoming an Australian citizen; ceasing to be an Australian citizen; and evidence of Australian citizenship. Becoming an Australian citizen The outline states that that there is a range of ways to become an Australian citizen. It briefly describes how a person may become a citizen by acquiring citizenship automatically through birth; or by application by being a citizen by descent, by adoption (in accordance with the Hague Convention), or by conferral. The outline also notes that a person may resume their Australian citizenship. In addition, the outline states that if a person was a citizen under the Australian Citizenship Act 1948, immediately before commencement of the new legislation, they will continue to be a citizen. The outline notes that the Minister must be satisfied of an applicant's identity and that the Minister may be required to refuse an application on national security grounds. Ceasing to be an Australian citizen The outline specifies that there are a number of ways to cease to be an Australian citizen: by renunciation; by revocation by the Minister in certain circumstances where the person did not automatically become an Australian citizen; and in some other less common ways. Evidence that a person is an Australian citizen The outline also specifies that an application can be made to the Minister for evidence of Australian citizenship. It directs the reader to Division 4 of Part 2. Clause 3 Definitions This clause defines certain terms used in the Bill. It draws most of the definitions from the old Act into the one provision, for example, section 34 (of the old Act) which relates to posthumous children. adverse security assessment has the meaning given by section 35 of the Australian Security Intelligence Organisation Act 1979.


8 artificial conception procedure includes: (a) artificial insemination; and (b) the implantation of an embryo in the body of a woman. Australia, when used in a geographical sense, includes the external territories. Australian citizen has the meaning given by section 4. Australian law means a law of the Commonwealth, a State or a Territory. child includes an adopted child, a step-child and an ex-nuptial child. commencement day means the day on which sections 2A to 54 commence. disclose, in relation to identifying information that is a personal identifier under Division 5 of Part 2, includes providing unauthorised access to the personal identifier". The intention is to make clear that providing an authorised access to a personal identifier (under clause 42) is not a `disclosure' within the meaning in clause 43 of the Bill (which makes it an offence to disclose identifying information where the disclosure is not a permitted disclosure). However, the provision of an unauthorised access to a personal identifier (i.e. an access not authorised by clause 42) is a disclosure, and may be an offence under clause 43 if the disclosure is not a permitted disclosure. A note is also provided at the end of this definition to refer the reader to section 42 which deals with authorised access to identifying information. "entrusted person" means: (a) the Secretary of the Department; or (b) an APS employee in the Department; or (c) a person engaged under section 74 of the Public Service Act 1999 by the Secretary of the Department; or (d) a person engaged by the Commonwealth, the Minister, the Secretary of the Department, or by an APS employee in the Department, to do work for the purposes of this Act or the regulations or of the Migration Act 1958 or the regulations made under that Act. This term is used to provide exceptions to the offences in clause 43 (disclosing identifying information) and clause 44 (unauthorised modification or impairment of


9 identifying information). Generally speaking, the exceptions apply where an entrusted person lawfully discloses identifying information to a person who is not an entrusted person. No offence is committed if the information is further disclosed, or impaired or modified, by a person who is not an entrusted person. In many cases, the actions of such a person will be governed by the Privacy Act 1988 (the Privacy Act). For example, once the Department of Immigration and Multicultural Affairs has lawfully disclosed a photograph of a citizenship applicant to the Australian Federal Police (AFP), the way in which the AFP then deals with that photograph may be governed by the Privacy Act, rather than by the offence provision in clause 43. Any disclosure of identifying information by an entrusted person will be an offence under clause 43 and not lawful if it is not a permitted disclosure, as will a disclosure (other than a permitted disclosure) by an AFP officer where that information was not lawfully disclosed to the AFP. foreign law means a law of a foreign country. identifying information means the following: (a) any personal identifier provided under Division 5 of Part 2; (b) any meaningful identifier derived from any such personal identifier; (c) any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier; (d) any other information derived from: (i) any such personal identifier; or (ii) any meaningful identifier derived from any such personal identifier; or (iii) any record of a kind referred to in paragraph (c); that could be used to discover a particular person's identity or to get information about a particular person. The definition of "identifying information" applies only to personal identifiers which have been provided under Division 5 of Part 2 of the Act, and not to any personal identifier (i.e. any photograph or signature). The definition also only covers meaningful identifiers, records of results and analysis, or any other information derived from a personal identifier provided under that Division. The offences in clauses 42, 43 and 44 apply only where the identifying information in question is a personal identifier provided under Division 5 of Part 2 of the Bill (in particular, clause 40), or is a meaningful identifier, a record or analysis of results or any other information derived from such a personal identifier. national security offence means: (a) an offence against Part II or VII of the Crimes Act 1914; or


1 0 (b) an offence against Division 72 of the Criminal Code; or (c) an offence against Part 5.1, 5.2 or 5.3 of the Criminal Code; or (d) an offence against the Australian Security Intelligence Organisation Act 1979; or (e) an offence against the Intelligence Services Act 2001; or (f) an offence covered by a determination in force under section 6A. This provides a definition for the term "national security offence". The term is used at clauses 6A, 17, 19D, 24 and 30 of the bill. New Guinea: (a) has the same meaning as the Territory of New Guinea had in the Papua New Guinea Act 1949 immediately before 16 September 1975; and (b) in relation to any time before 4 June 1969--includes a reference to the Island of Nauru. old Act means the Australian Citizenship Act 1948 as in force at any time before the commencement of this Act. ordinarily resident: a person is taken to be ordinarily resident in a country if and only if: (a) he or she has his or her home in that country; or (b) that country is the country of his or her permanent abode even if he or she is temporarily absent from that country. However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only. Papua has the same meaning as the Territory of Papua had in the Papua New Guinea Act 1949 immediately before 16 September 1975. permanent resident has the meaning given by section 5. permanent visa has the same meaning as in the Migration Act 1958. personal identifier has the meaning given by section 10. prison includes any custodial institution at which a person convicted of an offence may be required to serve the whole or a part of any sentence imposed upon the person because of that conviction.


1 1 psychiatric institution includes a psychiatric section of a hospital. qualified security assessment has the meaning given by section 35 of the Australian Security Intelligence Organisation Act 1979. responsible parent has the meaning given by section 6. serious prison sentence means a sentence of imprisonment for a period of at least 12 months. serious repeat offender: a person is a serious repeat offender in relation to a serious prison sentence if the sentence was imposed on the person for an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of another serious prison sentence. special category visa has the same meaning as in the Migration Act 1958. special purpose visa has the same meaning as in the Migration Act 1958. unlawful non-citizen has the same meaning as in the Migration Act 1958. visa has the same meaning as in the Migration Act 1958. Clause 4 Australian Citizen This clause defines the term `Australian Citizen'. It specifies that for the purposes of this Act, `Australian citizen' means a person who is: · an Australian citizen under Division 1 or 2 of Part 2; or · satisfies both of the following: o the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day; o the person has not ceased to be an Australian citizen under this Act. The purpose of this clause is to clearly set out who is an "Australian citizen" for the purposes of the Act. This includes a specific reference to people who are Australian citizens at the time of commencement of the legislation. It provides that such a person is an "Australian citizen" for the purposes of the Act. This specific reference is in accordance with the Senate Committee recommendation that that the Bill include a substantive provision to provide that a person who is a citizen under the Australian Citizenship Act 1948 is a citizen for the purpose of the new legislation.


1 2 The continuing status of people who are Australian citizens before commencement is also provided for in Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Bill 2005. Clause 5 Permanent resident Clause 5 clarifies `permanent resident' for the purposes of this Act. (1) It specifies that a person is a permanent resident at a particular time if and only if: (a) the person is present in Australia at that time and holds a permanent visa at that time; or (b) both: (i) the person is not present in Australia at that time and holds a permanent visa at that time; and (ii) the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or (c) the person is covered by a determination in force under subsection (2) at that time. (2) The Minister may, by legislative instrument, determine that: (a) persons who hold a special category visa or a special purpose visa; or (b) persons who have held a special category visa; or (c) persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands; and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies. Permanent resident under the old Act (3) If, under this Act, it is necessary to work out if a person was a permanent resident at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time. The purpose of the new provision is to replace the complicated definition of `permanent resident' in section 5A of the old Act, with a simplified definition. Subclause 5(1) covers the situation set out in paragraph 5A(1)(bb) of the old Act. Subclause 5(2), by Ministerial determination, covers paragraphs 5A(1)(c) and (d) and subsection (2). subclause 5(3) covers the historical situations set out in paragraphs 5A(1)(a), (b) and (ba) of the old Act and any time prior to commencement of the new Act, in relation to which it is necessary to determine whether someone was a permanent resident. Clause 6 Responsible parent


1 3 This clause defines the term `responsible parent' for the purposes of the Act. This definition of responsible parent is equivalent to subsection 5(2) of the old Act. Subclause 6(1) specifies that a person is a responsible parent in relation to a child if and only if: (a) the person is a parent of the child except where, because of orders made under the Family Law Act 1975, the person no longer has any parental responsibility for the child; or (b) the person (whether or not a parent of the child) has a residence order in relation to the child; or (c) the person (whether or not a parent of the child) has a specific issues order in relation to the child under which the person is responsible for the child's long-term or day-to-day care, welfare and development; or (d) the person (whether or not a parent of the child) has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise. Subclause 6(2) provides that the expressions used in paragraphs (1)(a), (b) and (c) are to have the same meaning as in the Family Law Act 1975. Clause 6A - National Security Offences This provision addresses national security offences. It provides in subclause 6A(1) that the Attorney-General may, by legislative instrument, determine that: · an offence against a specified provision of a specified Australian law or a specified foreign law; or · an offence against an Australian law or a foreign law involving specified conduct; is a national security offence for the purposes of paragraph (f) of the definition of national security offence in section 3. It also provides at subclause (2) that a determination made under subsection (1) applies in relation to: · applications made under this Act after the determination takes effect; and · applications made under this Act before the determination takes effect that have not been decided before the determination takes effect. All people who apply for citizenship (whether by descent, by adoption or by conferral), or who seek to resume citizenship, must meet requirements relating to national security.


1 4 The definition of "national security offence" expressly states that certain offences against Australian laws are "national security offences", but allows further offences to be included by a determination. This determination power will provide for further offences against Australian law and offences against overseas laws to also be taken into account. The making of such determinations would involve consideration of the circumstances of the person's conduct; the nature of the offence; and if it is a foreign offence, whether the conduct constituting the offence would constitute a national security offence under Australian law if it were to occur in Australia. Subclause 6A(2) makes clear that a determination under subclause 6A(1) (that an offence is a national security offence) applies not just to people who apply for citizenship after the determination takes effect, but also to people who apply before the determination takes effect, where their applications are decided after that date. The reason for this is that it would be very difficult to foresee all offences, particularly overseas offences, which should be specified as national security offences. When a stateless person applies for citizenship, and that person has been convicted overseas of an offence relevant to national security, the Attorney-General may make a determination that the offence for which the person was convicted is a national security offence for the purposes of the definition in clause 3. Clause 7 Children born on ships or aircraft or after death of parent Clause 7 introduces a new provision in relation to children born on ships or aircraft or after death of parent. This is the equivalent of paragraph 5(3)(a) of the old Act and section 34 of the old Act. Paragraph (1)(a) provides that a person born on a ship or aircraft registered in Australia or a foreign country is taken to have been born at the place at which the ship or aircraft is registered. Paragraph (1)(b) provides that a person born on a ship or aircraft not registered in Australia or a foreign country and belonging to the government of a country is taken to have been born in that country. Subclause (2) addresses the case of a person born after death of parent. The status of a parent at the time of the person's birth, is taken to be the status of the parent at the time of their death. Clause 8 Children born as a result of artificial conception procedures


1 5 Clause 8 clarifies the status of children born as a result of artificial conception procedures. This new provision is the equivalent of subsections 5(6) (7) and (8) of the old Act. Subclause 8(1) specifies that the child is taken to be a child of a man (and of no other) if the child is born to a woman through artificial conception while married to that man provided the procedure was carried out with his consent, even though the child is not his biological child. Subclause 8(2) applies in relation to a purported marriage that is void as if it were a marriage and the party's husband and wife, unless at the time of the artificial conception procedure, unless neither party to the purported marriage believed on reasonable grounds that the purported marriage was valid. Clause 9 Confinement in prison or psychiatric institution Clause 9 addresses the meaning of confinement in prison or psychiatric institution in the Act. Subclause 9(1) is the equivalent of paragraph 5(5)(a) of the old Act. Subclause 9(2) is the equivalent of subsection 13(16) of the old Act. Subclause 9(3) is the equivalent of paragraph 5(5)(b) of the old Act. Subclause (1) provides that the period of prison confinement includes a period during which the person is an escapee from the prison; or is undergoing a sentence of periodic detention in the prison. Subclause (2) provides that this period of prison confinement does not include a period where a conviction is later quashed. Subclause (3) provides that a period of confinement by a person in a psychiatric institution by order of a court includes a period where that person has escaped from the institution. Clause 10 Personal identifiers Clause 10 inserts a specific definition provision for the meaning of personal identifier in the Act. It provides an exhaustive list of what constitutes a "personal identifier". Some personal identifiers, such as photographs are already collected in the citizenship process. For example, they are required when applying for citizenship by application and when applying for evidence of Australian citizenship.


1 6 However, the old Act does not define a personal identifier, or the circumstances in which a personal identifier may be required, or how the personal identifier is to be provided. This Act amends the old Act by inserting provisions to provide a legislative framework for the collection, use and storage of personal identifiers, such as photographs and signatures, from non-citizens and from Australian citizens. "Personal identifier" means any of the following, including any of the following in digital form: (a) fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies); (b) a measurement of a person's height and weight; (c) a photograph or other image of a person's face and shoulders; (d) an iris scan; (e) a person's signature; (f) any other identifier prescribed by the regulations (except an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914). Subclause 10(2) specifies the necessary steps to consider before the making of regulations prescribing a personal identifier under new paragraph 10(1)(f). It provides that before the Governor-General makes regulations, the Minister must be satisfied that: (a) obtaining the identifier would not involve carrying out an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and (b) the identifier is an image of, or a measurement or recording of, an external part of the body; and (c) obtaining the identifier is necessary for either or both of the following purposes: (i) assisting in the identification of, and to authenticate the identity of, a person making an application under Part 2; (ii) combating document and identity fraud in citizenship matters. In practice, the Minister will also consult with the Attorney-General before the Governor- General makes regulations for the purpose of prescribing a new personal identifier under new paragraph 10(1)(f). To make it clear, a personal identifier that requires an intimate forensic procedure, as defined in section 23WA of the Crimes Act 1914, cannot be prescribed in any regulations made under new paragraph 50(1)(f). Such a personal identifier can only be required if


1 7 the Act itself is amended to include it. For example, the taking of a sample of blood could not be prescribed as a personal identifier under new paragraph 10(1)(f). Division 5 of Part 2 of this Bill sets out the identity provisions. Paragraph 10(2)(c) provides that the Minister must be satisfied of certain matters before the Governor-General may make regulations prescribing an identifier as a "personal identifier" for the purposes of the Bill. The wording of this provision results from consultations on the personal identifier provisions of the original Bill with the Office of the Privacy Commissioner, following a recommendation by the Senate Committee in its report on the Bill that the personal identifier provisions be reviewed. Clause 11 Operation of Act Clause 11 provides clarification on the scope of operation of this Act. Subclauses 11(1) and (2) are the equivalent of sections 6 and 52 of the old Act. Subclause 11(3) clarifies that the Act will apply to the exclusion of a law of a State or Territory that provides for Australian citizenship. Subclause 11(1) indicates that it applies to the external Territories Subclause 11(2) addresses its operation outside Australia. It extends, unless the contrary intention appears, to acts, omissions, matters and things outside Australia and also to all persons, irrespective of their nationality or citizenship. Subclause 11(3) explains the intention of the Parliament in relation to State and Territory laws. It is made clear that this Act will apply to the exclusion of any provisions of a law of a State or Territory that provide for Australian citizenship (whether the law was made before or after the commencement of this Act).


1 8 Part 2--Australian citizenship Part 2 principally reworks Divisions 1, 2 and 4 of Part III of the old Act. Division 1 deals with automatic acquisition of Australian citizenship, Division 2 deals with Australian citizenship where an application is required (descent, conferral and resumption). Division 3 deals with cessation of Australian citizenship. This Part also incorporates provisions of Part V of the old Act concerning evidence of Australian citizenship and includes a new Division concerning personal identifiers. Division 1--Automatic acquisition of Australian citizenship Division 1 of the new Act outlines those circumstances where a person will automatically acquire Australian citizenship by operation of law. This Division brings provisions from the old Act into the one place and clearly outlines that a person can become an Australian citizen (without the need to make an application) following the commencement of the Act, by birth, adoption, abandonment or on acquisition of a territory. Clause 11A Simplified Outline Clause 11A provides a simplified outline for this Division which deals with automatic acquisition of Australian citizenship. The outline indicates that the most common way that a person may become an Australian citizen is by birth. The outline makes clear that citizenship by birth occurs where a person is born in Australia and has a parent who is an Australian citizen or a permanent resident at the time of the birth. The outline also mentions the less common ways of becoming an Australian citizen under Division 1, with reference to the relevant provisions, that is: · by being born in Australia and by being ordinarily resident in Australia for the next 10 years (section 12); · by adoption (section 13); · by being an abandoned child (section 14); and · by incorporation of territory (section 15). Clause 12 Citizenship by birth Clause 12 addresses the automatic acquisition of Australian citizenship by birth. Following the commencement of the Australian Citizenship Amendment Act 1986, it was made clear that a person would not automatically acquire Australian citizenship by reason alone of their birth in Australia. Certain additional conditions apply


1 9 This new provision is the equivalent of section 10 of the old Act with the exception of former section 10(6) as discussed below. Subclause 12(1) addresses these matters which apply to persons 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 1(b) provides that a person born in Australia is an Australian citizen if and only if the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born. Subclause 12(2) provides for the situation where a person is born in Australia in a time of enemy occupation. The intention is to make clear that a person is not an Australian citizen under this section if, at the time of birth, the parent is an enemy alien (previously defined); and the place of the birth is under occupation by the enemy. An exception is to be made in cases where the other parent is an Australian citizen or a permanent resident and is not an enemy alien. Subsection 10(6) of the old Act has not been incorporated into this new provision as it is no longer relevant (the concept of exempt non citizen was removed from the Migration Act 1958 in 1994). Clause 13 Citizenship by adoption Clause 13 is the equivalent of section 10A of the old Act. It provides for citizenship by adoption. In these circumstances, a person becomes an Australian citizen if certain requirements are met. The person must be: · adopted under a law in force in a State or Territory; · adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly, where at least one is an Australian citizen at that time; and · present in Australia as a permanent resident at that time. Clause 14 Citizenship for abandoned children Clause 14 is the equivalent of paragraph 5(3)(b) of the old Act. It provides for citizenship for abandoned children. In these cases, a person will be deemed to be an Australian citizen if that person was found abandoned in Australia as a child. A proviso exists specifying that this is the case unless and until the contrary is proved.


2 0 Clause 15 Citizenship by incorporation of Territory Clause 15 is the equivalent of section 33 of the old Act. It provides for Australian citizenship in circumstances where a Territory is incorporated. Subclause 15(1) specifies that a person is an Australian citizen if any territory becomes a part of Australia and the person is included in a class of persons specified in a determination which is made under this Section. Subclause 15(2) provides for the making of such determination. This may be effected by the Minister by legislative instrument. The Minister is empowered to determine that specified classes of persons are Australian citizens from a specified day because of their connection with that territory. Subclause 15(3) provides the day of commencement. Citizenship begins on the day that the determination is made. Although the determination may be registered after the specified day, the policy is that persons become Australian citizens on the specified day. Subclause 15(4) provides that despite subsection 12(2) of the Legislative Instruments Act 2003, the instrument may be expressed to take effect before the date it is registered under that Act. Division 2--Acquisition of Australian citizenship by application Division 2 of the new Act outlines those circumstances where a person will acquire Australian citizenship by application. It restructures provisions within the old Act to bring together in the one place the circumstances whereby a person is required to apply to become an Australian citizen. These are citizenship by descent (Subdivision A formerly Sections 10B, 10C and 11 of Division 1, Part 3 of the old Act), citizenship by conferral (Subdivision B formerly Division 2, Part 3 of the old Act) and citizenship by resumption (Subdivision C formerly sections 23AA, 23AB, 23A and 23B of Division 4, Part 3 of the old Act). Subdivision A--Citizenship by descent Subdivision A deals with citizenship by descent. This subdivision mirrors the provisions of the old Act as set out more specifically below and also incorporates policy changes removing the age limit for registration of citizenship by descent. Since the commencement of the Act in 1949, there has been provision for registration of children as citizens by descent in one form or another. For many years the law required that the child be registered within one year of the birth. This was later changed to


2 1 registration within 18 years of the birth and provision was made for the registration of citizenship by descent of people who were already over the age of 18 years. In 2002, in response to a recommendation by the Australian Citizenship Council, the age limit for registration was increased to 25 years. However, some Australians were not aware of the time limits for registration of a child as a citizen by descent and the result is that in some families there are children are eligible for registration as citizen by descent and others are not because they were not over 18 years in 1984 and are now over 25 years of age. Clause 15A Simplified Outline This clause provides a simplified outline for Subdivision A of Division 2. Subdivision A deals with citizenship by descent. The outline describes the various ways a person may be eligible to become an Australian citizen by descent. It specifies that a person may be eligible to become an Australian citizen under Subdivision A in two situations: · by birth outside Australia on or after 26 January 1949 where the person had a parent who was an Australian citizen at the time of that person's birth (the reader is referred to subsection 16(2)); or · by birth outside Australia or New Guinea before 26 January 1949 where the person had a parent who was an Australian citizen on 26 January 1949 (the reader is referred to subsection 16(3)). The outline advises that an application must be made to become an Australian citizen, and notes that the Minister must approve or refuse the application. Readers are further advised that people must be eligible to be an Australian citizen to be so approved, and that the Minster may be required to refuse an application on grounds relating to: · non-satisfaction of identity - subsection 17(3); or · national security - subsections 17(4) to (4B); or · cessation of citizenship - subsection 17(5). The outline specifies that registration will take place if the Minister approves the application for citizenship. It also states that a person will not become an Australian citizen even if the Minister approves the application unless a parent of that person was an Australian citizen at a particular time and refers readers to section 19A.


2 2 Clause 16 Application and eligibility for citizenship Clause 16 outlines the circumstances of application and eligibility for citizenship by descent. Subclause 16(1) addresses the requirements concerning application. It provides that a person may make an application to the Minister to become an Australian citizen. The application requirements are provided for in the note attached at the end of the clause which refers to section 46. That section sets out further specifics in relation to application requirements (which may include the payment of a fee). Persons born outside Australia on or after 26 January 1949 Subclause 16(2) refers to persons, who were born outside Australia on or after 26 January 1949, ie: the date of the commencement of the old Act. It provides for the circumstances where a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen. In those circumstances, eligibility exists if: (a) a parent of the person was an Australian citizen at the time of the birth; and (b) if the parent acquired Australian citizenship by descent or by adoption in accordance with the Hague Convention on Intercountry Adoption i. the parent was lawfully present in Australia for a total period of at least 2 years at any time before the person made the application; or ii. the person was not or ever a national or a citizen of any country at the time of application; and (c) if the person was 18 years or over at the time of application--the Minister was satisfied they were of good character at the time of the Minister's decision. This subsection combines the descent sections 10B and 10C of the old Act. Both section 10B and 10C provided that a person may be eligible if they had a parent who was an Australian citizen at the time of their birth. Section 10B also provided that if that parent was a citizen by descent, then the parent was required to have spent a total of two years in Australia at any time before the person applied for citizenship by descent. Subsection 23D(3) of the old Act did not require this two year period to be met if the person was not ever a national or citizen of any other country at the time of application. Both sections 10B and 10C required that if the person was over the age of 18 then the Minister must be satisfied that they were of good character. The subclause imposes the same requirements for a person seeking citizenship by descent where their Australian citizen parent obtained their citizenship as a result of the operation


2 3 of new Subdivision AA, which refers to persons adopted in accordance with the Hague Convention on Intercountry Adoption. The following requirements in sections 10B and 10C have not been included in new subclause (2): · the age limitations - this provision was removed because it created clear inconsistencies in eligibility, even within the same family. An extreme example of this, is a family of three children, one born in 1980 and eligible under 10B, the other born in 1973 eligible under 73 and another child born in 1977 who is not eligible under either provision; and · the requirement that a parent of the person must be an Australian citizen at the time of application or dead (subsection10B(2) and paragraph 10C(4)(b)). The requirement in section 10C that the person provide an acceptable reason for failing to register under section 10B has also not been included in the subclause (2). Many people were unaware of these limitations and as a consequence have been unable to access their entitlement to citizenship by descent. These amendments will allow them to do so. Persons born outside Australia or New Guinea before 26 January 1949 Subclause 16(3) refers to persons who are born outside Australia or New Guinea before 26 January 1949, ie: prior to the commencement of the old Citizenship Act. It provides that a person born outside Australia or New Guinea before 26 January 1949 is eligible to become an Australian citizen if: (a) a parent of the person became an Australian citizen on 26 January 1949; and (b) the parent was born in Australia or New Guinea or was naturalised in Australia before the person's birth; and (c) the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application. This provision is the equivalent of section 11 of the old Act. Section 11 complemented former subsection 25(3) which provided a person became a citizen by operation of law to a person born outside Australia before 26 January 1949 whose father became a citizen on that date, by providing for persons born outside Australia before 26 January 1949 whose mother became citizens on that date. Both section 11 and subsection 25(3) required that a person enter Australia prior to 1 May 1987. Section 11 was only in effect from 1991 to 1996. Many people were unaware of these limitations and as a consequence have been unable to access their entitlement to citizenship by descent.


2 4 Section 11 required that the Minister must be satisfied that the person is of good character. Clause 17 Minister's decision Clause 17 deals with the Minister's decision in relation to the making of an application for citizenship by descent. Subclause 17(1) provides that if a person makes an application under this section, the Minister must approve or refuse the application. Notice of the decision must be given in writing. Subclause 17(1A) puts beyond doubt that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subclause 16(2) or (3). Subclause 17(2) specifies that the Minister must, subject to this Section, approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen. This provides a clear link in the decision power (clause 17) to the provisions under which the person may be eligible to become a citizen by descent (subclauses 16(2) or (3)). Sections 10B, 10C and 11 of the old Act required the Minister to register a person as an Australian citizen if the person met the eligibility criteria. Identity Subclause 17(3) provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. At the end of this provision a note is made which directs the reader to Division 5 which contains the identity provisions. National Security These amendments relate to the national security requirements for approval of a person becoming an Australian citizen by descent. Subclause 17(4) applies only if the person is not covered by subsection 4(B). The purpose is to provide specific requirements regarding national security for stateless people (i.e. people covered by new subclause (4B)), and exclude such people from having to meet the standard national security requirement in subclause 17(4).


2 5 Subclause 17(4) provides that the Minister must not approve a person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act). "Adverse security assessment" and "Qualified security assessment" are defined in clause 3. The provision will prohibit the approval of a citizenship applicant who is assessed by the Australian Security Intelligence Organisation as a risk to the security of Australia. A "security assessment" is reviewable under Part IV of the ASIO Act. The review would be undertaken by the Security Appeals Division of the Administrative Appeals Tribunal. Subclause (4A) sets out the national security requirement for stateless people (i.e. people covered by subclause (4B). It provides that if a person is covered by subclause (4B), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence. The term "national security offence" is defined at clause 3 of the Bill. The definition includes several listed offences, and other offences which may be determined by the Attorney-General under clause 6A. Clause 6A makes it clear that offences determined by the Attorney-General before an application is made or after an application for citizenship is made, but before it is decided, will apply to that application. Subclause 17(4B) sets out the people to whom subclause (4A) will apply. It will apply to a person who, at time of the citizenship application under clause 16, is not a national or citizen of any country, and who, at the time of person's birth had a parent who was an Australian citizen. This reflects the recommendations of the Senate Committee that clause 17 limit the exclusion from citizenship on national security grounds in the case of a stateless person to applicants who have been convicted of a security related offence in accordance with the Convention on the Reduction of Statelessness (as opposed to merely being subject to an adverse or a qualified security assessment). Cessation of citizenship Subclause 17(5) provides for the situation where a person ceased to be an Australian citizen and subsequently applies for citizenship. In that event, the Minister must not approve the person becoming an Australian citizen for a 12 month period which commences from the day of cessation of their Australian citizenship.


2 6 This subclause is the equivalent of the 12 month period of limitation of acquisition of citizenship by conferral as provided at paragraph 13(11)(g) in the old Act. Clause 18 Registration Clause 18 requires the Minister to register the person becoming an Australian citizen if their application for citizenship is approved. This must be done in the manner prescribed by the regulations. Sections 10B, 10C and 11 of the old Act required the Minister to register a person as an Australian citizen if they were eligible and approved as a citizen by descent. Clause 19 Day citizenship begins Clause 19 details on which day citizenship begins under this Subdivision. It provides that a person becomes an Australian citizen on the day that the Minister approves the person becoming a citizen.. The current provisions (paragraph 10B(1)(a) and subsections 10C(1) and 11(3)) provide that a person becomes a citizen at the point of registration. In practice the recording of the approval may occur at a later date than the approval. The change ensures that once the application has been approved, the person becomes an Australian citizen by descent. Clause 19A When a person does not become a citizen despite the Minister's approval Clause 19A makes clear that a person does not become a citizen by descent if the person did not have a parent who was a citizen at the time of their birth (or a parent who became a citizen on 26 January 1949, for those applicants born before 29 January 1949). The intention is to put beyond doubt that this is the case even where the Minister has approved the person becoming an Australian citizen. For example, a person is approved as an Australia pursuant to clause 17, and registered as such, but it is later discovered that the person actually did not have a parent who was an Australian citizen at the time of their birth outside Australia. Such a person will not be, and never will have been, an Australian citizen.


2 7 Subdivision AA - Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption The purpose of this new Subdivision is to allow children adopted overseas by Australian citizens to become Australian citizens, in a similar way in which children born to Australian citizens overseas can become Australian citizens. The new provisions implement the Government's response to a recommendation made by the House of Representatives Standing Committee on Family and Human Services in its inquiry into the adoption of children from overseas. Clause 19(B) Simplified Outline Clause 19B is a simplified outline of new Subdivision AA. It outlines the eligibility requirements, specifying that a person may be eligible to become an Australian citizen if they are adopted outside Australia in accordance with the Hague Convention on Intercountry Adoption by at least one Australian citizen. The outline states that a person must make an application to become an Australian citizen and that the Minister must approve or refuse the person becoming an Australian citizen. A person must be eligible to be an Australian citizen to be approved and may be refused citizenship even if they are eligible. A person will be registered if the Minister approves the application to become an Australian citizen. The outline also provides that the Minister may be required to refuse the application on grounds relating to non-satisfaction of identity, national security, or cessation of citizenship, and refers the reader to the relevant provisions (subclauses 19D(4), (5) to (7) and (8) respectively). Clause 19C Application and eligibility for citizenship Clause 19C sets out how a person applies for citizenship by intercountry adoption and the eligibility criteria for such an applicant. Subclause (1) provides that a person may make an application to the Minister to become an Australian citizen. It includes an explanatory note referring the reader to section 46 which sets out application requirements noting that this may include the payment of a fee. The eligibility criteria are set out at subclause (2) in paragraphs (a) to (g). Paragraph 19C(2)(a) requires the person to have been adopted in a Convention country. Subclause 19C(4) defines a Convention country to have the same meaning as in the Family Law (Hague Convention on Intercountry Adoptions) Regulations 1998 (the


2 8 Intercountry Adoption regulations). The person must also have been adopted by at least one person who is an Australia citizen at the time of the adoption. Paragraph 19C(2)(b) makes it a requirement that an adoption compliance certificate issued in the overseas country is in force for the adoption. Subclause 19C(4) defines adoption compliance certificate to have the same meaning as in the Intercountry Adoption regulations. Paragraph 19C(2)(c) requires that the adoption is recognised and effective, under the Intercountry Adoption regulations, for the laws of the Commonwealth and each State and Territory. Paragraph 19C(2)(d) requires that the legal relationship between the applicant and the individuals who were, immediately before the adoption, the applicant's parents, has been terminated. Paragraphs 19C(2)(e) and (f) apply to situations where the adoptive parent or both adoptive parents are themselves citizens by descent or adoption. Paragraph (e) makes it a requirement that the adoptive parent must have spent at least two years in Australia (otherwise than as an unlawful non-citizen) prior to the application being made, if that parent acquired Australian citizenship by descent or by adoption. Paragraph (f) makes it clear that where both parents are citizens by descent or adoption, only one of those parents must satisfy this requirement. These provisions mirror a similar requirement for applicants for citizenship by descent - their parent or parents must have spent at least two years in Australia if they themselves are citizens by descent or by adoption. The purpose of this requirement is to ensure that successive generations cannot continue to become citizens by descent or by adoption without each generation maintaining a link with Australia. Paragraph 19C(2)(g) makes it a requirement that if the applicant is aged 18 or over at the time of application, the Minister is satisfied that the applicant is of good character at the time of the Minister's decision on the application. This reflects a similar requirement for all people applying for Australian citizenship. Subclause 19C(3) sets out the requirement for certain applicants that at least one of their parents must have been present in Australia for a total period of at least two years at any time before the application is made. This requirement applies where the parent or parents who are Australian citizens have themselves obtained citizenship by descent. In such a case, the parent or at least one of the parents must meet the 2 years presence in Australia requirement. The requirement mirrors a similar requirement for applicants for citizenship by descent. It is designed to


2 9 ensure that successive generations cannot continue to become citizens by descent or by adoption without each generation maintaining a link with Australia. Subclause 19C(4) contains definitions for the purposes of the clause, as follows: - adoption compliance certificate has the same meaning as in the Intercountry Adoption regulations; - Convention country has the same meaning as in the Intercountry Adoption regulations; and - Intercountry Adoption regulations means the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998. Clause 19D Minister's decision Clause 19D outlines the responsibilities of the Minister in making a decision under Subdivision AA. Subclause 19D(1) specifies that if a person makes an application under section 19C, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. The purpose of this subclause is to ensure that the Minister must act either way so that an outcome is achieved. Subclause 19D(2) states that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 19C(2). The purpose of this subclause is to put beyond doubt that where a person is not eligible to become a citizen under subclause 19C(2), the application cannot be approved and must be refused. Subclause 19D(3) states that the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 19C(2). The purpose of this subclause is to ensure that the Minister has the ability to refuse to approve a person becoming an Australian citizen despite the fact that the person is eligible. Identity Subclause 19D(4) states that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person. There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.


3 0 A note is included at the end of this subclause referring the reader to Division 5 which contains the identity provisions. National security Subclauses 19D(5), (6) and (7) address the issue of national security. Subclause (5) applies to all applicants other than those to whom subclause 19D(7) applies (i.e. applicants who are stateless). It provides that the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment or a qualified security assessment in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act). The terms "adverse security assessment" and "qualified security assessment" are defined in clause 3 of the Bill. The purpose of this subclause is to ensure that the Minister must not approve a person becoming an Australian citizen where the person is the subject of an adverse security assessment or a qualified security assessment as described above. A security assessment is reviewable under Part IV of the ASIO Act. The review would be undertaken by the Security Appeals Division of the Administrative Appeals Tribunal (AAT). Subclause 19D(6) sets out the national security requirement for stateless people (i.e. people covered by subclause (7)). It provides that if a person is covered by subparagraph (7)(b)(i) (i.e. stateless people born in Australia), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of either a national security offence, or an offence against an Australia law or a foreign law, for which the person was sentenced to at least 5 years imprisonment. Subclause (6) further provides that if subparagraph (7)(b)(ii) applies to the applicant (i.e. stateless people born outside Australia who, at the time of their birth, had a parent who was an Australian citizen), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence. The term "national security offence" is defined at clause 3 of the Bill. The definition includes several listed offences, and other offences determined by the Attorney-General under clause 6A. Clause 6A makes it clear that offences determined by the Attorney- General either before or after an application for citizenship is made, but before it is decided, will apply to that application. New subclause 19D(7) sets out the people to whom subclause (6) will apply. It applies to people who are not a national or citizen of any country and who either were born in


3 1 Australia (subparagraph (7)(b)(i)), or were born outside Australia and, at the time of their birth, had a parent who was an Australian citizen (subparagraph (7)(b)(ii)). These amendments flow from a recommendation made by the Senate Committee in its inquiry into the original Bill. The Committee recommended that various provisions of the original Bill be amended so as to limit the exclusion from citizenship on national security grounds in the case of a stateless person to applicants who have been convicted of a security related offence in accordance with the Convention on the Reduction of Statelessness, rather than exclusion on the basis of an adverse or qualified security assessment as provided for persons who are not stateless. The amendments reflect the fact that the Convention requires this limitation where the applicant for citizenship had, at the time of their birth outside Australia, a parent who was an Australian citizen (Article 4); or where the person was born in Australia (Article 1). Consistent with the Convention, stateless people born in Australia should only be excluded from citizenship if convicted of a national security offence or convicted of an offence against an Australian law or foreign law and for which the person was sentenced to at least 5 years imprisonment. Persons born outside Australia, who at the time of their birth, had a parent who was an Australian citizen, should only be excluded from citizenship if convicted of a national security offence. Cessation of citizenship Subclause 19D(8) states that if the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen. This subclause makes clear that people who cease to be Australian citizens are not eligible to resume citizenship for a period of 12 months from the day of cessation. It is important that the privilege of Australian citizenship is not able to be resumed without due consideration by those who have renounced their citizenship or have ceased to be citizens for some reason. Clause 19E Registration Clause 19E specifies that the Minister must register a person in the manner prescribed by the regulations if the Minister approves the person becoming an Australian citizen. Clause 19F Day citizenship begins Clause 19F provides that a person becomes an Australian citizen on the day on which the Minister approves the person becoming an Australian citizen.


3 2 Subdivision B--Citizenship by conferral Subdivision B deals with citizenship by conferral. It is the equivalent of citizenship by grant as outlined at Division 2, Part 3 of the old Act. However, the old Act provided that the Minister could `grant a certificate of Australian citizenship' to a person provided certain requirements under that Act were met. In practice the `grant of a certificate' is the approval of an applicant for Australian citizenship. A successful applicant becomes an Australian citizen only once they have made the pledge of commitment before the Minister of delegate. This Subdivision clarifies this process. Evidence of Australian citizenship may be applied for and provided in the form of a written notice (see Division 4 `Evidence of Australian citizenship'). Clause 19G Simplified outline Clause 19G contains a simplified outline of Subdivision B - Citizenship by conferral. The outline sets out the eligibility requirements for Australian citizenship under this Subdivision B and refers readers to the relevant provisions for each situation, as follows: · the applicant satisfies the general eligibility criteria - subsection 21(2); · the applicant has a permanent physical or mental incapacity - subsection 21(3); · the applicant is aged 60 or over or has a hearing, speech or sight impairment - subsection 21(4); · the applicant is aged under 18 - subsection 21(5); · the applicant was born to a former Australian citizen - subsection 21(6); · the applicant was born in Papua - subsection 21(7); or · the applicant is stateless - subsection 21(8). It advises that a person must make an application to become an Australian citizen and that the Minister must approve or refuse the applicant becoming an Australian citizen. It also advises that a person must be eligible to be an Australian citizen to be approved and notwithstanding eligibility may still be refused citizenship. The outline sets out the grounds upon which the Minister may be required to refuse the application, and the relevant provisions, as follows: · non-satisfaction of identity - subsection 24(3); · national security - subsections 24(4) to (4B); · non-presence in Australia - subsection 24(5); · offences - subsection 24(6); or · cessation of citizenship - subsection 24(7).


3 3 It also advises that the person may need to make the Pledge of Commitment to become an Australian citizen. Clause 20 Requirements for becoming a citizen Clause 20 sets out the requirements for becoming a citizen by conferral. This Section specifies that a person becomes an Australian citizen if: · the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and · if the person is required to make a pledge of commitment to become an Australian citizen--the person makes that pledge. A note is added at the end of this Section cross referencing the reader to sections 21 to 25.. These sections deal with the Minister approving the person becoming an Australian citizen under subclause 24(1). In addition, reference is made to sections 26 and 27 which deal with the making of a pledge of commitment. Clause 21 Application and eligibility for citizenship Clause 21 sets out the application and eligibility requirements for citizenship by conferral. Application requirements Subclause 21(1) provides that a person may make an application to the Minister to become an Australian citizen. Note 1 is provided at the end of this subsection directing the reader to subsections (2) to (8) which deal with eligibility for conferral. The application requirements are provided for in note 2 which refers to section 46. That section sets out further matters in relation to application requirements (which may include the payment of a fee). General eligibility Subclause 21(2) outlines the general eligibility provisions for citizenship.


3 4 It provides that a person is eligible to become an Australian citizen where the Minister is satisfied that the person: · is aged 18 or over at the time the person made the application; and · is a permanent resident at that time; and · understands the nature of the application at that time; and · satisfies the residence requirement (referred to in section 22), or has completed relevant defence service (referred to in section 23), at that time; and · possesses a basic knowledge of the English language at the time of decision; and · has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision; and · is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and · is of good character at the time of the Minister's decision on the application. The eligibility criteria within this subsection are the equivalent of section 13 of the old Act (with the exception of the extension of the residence requirements to four years immediately before the time of application) and the express statement of the times at which the eligibility conditions are assessed. Section 13 of the old Act specified the time of assessment only for permanent residence and the residence requirements. This amendment has been made for the purposes of clarity. Permanent physical or mental incapacity Subclause 21(3) outlines the eligibility provisions for citizenship where a person has a permanent physical or mental incapacity. It provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person: · is aged 18 or over at the time the person made the application; and · is a permanent resident at that time; and · satisfies the residence requirement (referred to in Section 22), or has completed relevant defence service (referred to in Section 23), at that time; and · has a permanent physical or mental incapacity at that time that means the person is not capable of understanding the nature of the application at that time; and · is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and · is of good character at the time of the Minister's decision on the application. This new subsection is the equivalent of section 13(2) of the old Act with the exception of the extension of the residence requirements to four years immediately before the time of application.


3 5 Person aged 60 or over or has hearing, speech or sight impairment Subclause 21(4) outlines the eligibility provisions for citizenship where a person is aged 60 or over or has hearing, speech or sight impairment. It provides that a person is eligible to become an Australian citizen, if the Minister is satisfied that the person: · is either: - aged 60 or over at the time the person made the application; or - aged 18 or over at that time and suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; and · is a permanent resident at that time; and · understands the nature of the application at that time. In addition, the person must · satisfy the residence requirement (referred to in section 22), or has completed relevant defence service (referred to in section 23), at that time; and · be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and · be of good character at the time of the Minister's decision on the application. This new subsection is the equivalent of subsections 13(6) and 13(8) of the old Act. Subsection 13(7) of the old Act provides that people over the age of 50 years do not need to possess a basic knowledge of English. This has been raised to 60 years, consistent with the 1994 recommendation of the Joint Standing Committee on Migration that that age limit be raised to 60 years. It is also consistent with the exemption for persons aged 60 to have an adequate knowledge of the responsibilities and privileges of citizenship. Person aged under 18 Subclause 21(5) outlines the eligibility provisions for citizenship where a person is aged under 18 years. It specifies that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 at the time the person made the application. This new subsection is the equivalent of section 13(9)(a) of the old Act. As a matter of policy, applications considered under this subclause would usually be approved if the applicant meets the criteria in subclause (2). That is, the applicant is a permanent resident, satisfies the residence requirements, has a basic knowledge of


3 6 English, the privileges and responsibilities of citizenship, the nature of the application and is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved, and is of good character. In addition, applications under this subsection would not usually be approved unless the applicant has a responsible parent (as defined by section 6 of this Act) who is an Australian citizen. Person born to former Australian citizen Subclause 21(6) outlines the eligibility provisions for citizenship where a person was born to a former Australian citizen. Under this subclause a person is eligible to become an Australian citizen if the Minister is satisfied that: · a person was born outside Australia; and · a parent of the person was not an Australian citizen at the time of the person's birth; and · the parent had ceased to be an Australian citizen under section 17 of the old Act before that time; and · the person is of good character at the time of the Minister's decision on the application. This new subsection relates to the repeal on 4 April 2002 of section 17. Prior to its repeal, section 17 of the 1948 Act provided that, by operation of law, an Australian citizen aged 18 or over ceased to be an Australian citizen if they "did any act or thing the sole or dominant purpose of which and the effect of which was to acquire the citizenship of another country". Many people were not aware of section 17 and that they were no longer Australian citizens, until they attempted to register a child as a citizen by descent or sought to renew their Australian passport. In October 2003, a policy change enabled the provision of citizenship to children aged under 18, who were born overseas after their parent lost Australian citizenship under the former section 17. This was managed by way of Ministerial discretion. Subclause (6) reflects this policy change and enables those aged over 18 to access their Australian heritage. This new subclause was announced on 7 July 2004 and is consistent with Recommendation 6 of the Senate Committee Report "They still call Australia home: Inquiry into Australian expatriates". Person born in Papua Subclause 21(7) outlines the eligibility provisions for citizenship where a person was born in Papua to a parent who was born in Australia as now defined.


3 7 In these circumstances, a person (the applicant) is eligible to become an Australian citizen if the Minister is satisfied that: · the applicant was born in Papua before 16 September 1975; and · a parent of the applicant was born in Australia (within the meaning of this Act at the time the applicant made the application); and · the parent was an Australian citizen at the time of the applicant's birth; and · the applicant is of good character at the time of the Minister's decision on the application. The policy intention is to make clear that the meaning of `Australia' in this subsection refers to the definition of Australia at the time that the applicant makes the application for citizenship and at no other time. This new subsection provides for acquisition of Australian citizenship for people born in Papua prior to Papua New Guinea (PNG) Independence in 1975 to one or more parents who were born in an Australian State or internal Territory. These people were (prior to PNG Independence) Australian citizens by virtue of their birth in Papua and not eligible for registration as citizens by descent. These provisions remedy the anomalous situation under the old Act of a unique class of persons who were born in an Australian territory and are the children of a mainland Australian citizen parent who was born in an Australian State or internal Territory, yet have been denied Australian citizenship. Statelessness Subclause(8) outlines the eligibility provisions for citizenship where a person would otherwise be stateless. It provides that a person is eligible to become an Australian citizen if the Minister is satisfied that: (a) the person was born in Australia; and (b) at the time the person made the application, the person: (i) is not a national of any country; and (ii) is not a citizen of any country; and (c) the person has: (i) never been a national of any country; and (ii) never been a citizen of any country; and (d) at the time the person made the application, the person: (i) does not have reasonable prospects of acquiring the nationality of a foreign country; and


3 8 (ii) does not have reasonable prospects of acquiring the citizenship of a foreign country; and (e) the person has: (i) never had reasonable prospects of acquiring the nationality of a foreign country; and (ii) never had reasonable prospects of acquiring the citizenship of a foreign country. The provision ensures that Australia adheres to its obligations under the Convention on the Reduction of Statelessness that no-one born in Australia remain stateless. This subclause is the equivalent of subsections 23D(1) and (1A) of the old Act. Clause 22 Residence requirement Residence requirement Clause 22 outlines the residence requirement referred to in this Subdivision.. The change in residence requirements from those previously outlined in the Australian Citizenship Act 1948 recognise the changes in the migration programme over the years which have resulted in an increasing number of people spending significant periods of time in Australia as temporary residents prior to becoming permanent residents. In addition, it is important to note that Australian citizenship is a privilege not a right. The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens. People who are permanent residents at the time of commencement of the legislation will not be subject to these new residence requirements provided they make their application within three years of commencement. Instead, they will be subject to the residence requirement as provided for in the Australian Citizenship Act 1948, namely a minimum of two years permanent residence in Australia in the five years prior to application, including at least 12 months in the ltwo years prior to application. This is provided for in an amendment to the Australian Citizenship (Transitionals and Consequentials) Bill 2005. Proposed subclause (1) specifies that, subject to this section, for the purposes of section 21, a person satisfies the residence requirement if:


3 9 (a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and (b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and (c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application. These provisions require the person to have been physically present in Australia for the entire period of 4 years immediately before the application is made. Subclause 22(1) is however subject to the rest of proposed clause 22. Overseas absences Subclauses 22(1A) and (1B) allow applicants to spend time outside Australia during the 4 year period immediately before making the application. Proposed subclause (1A) provides that if. (a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and (b) the total period of the absence or absences was not more than 12 months; then, for the purposes of paragraph 22(1)(a), the person is taken to have been present in Australia during each period of absence. Subclause (1A) allows applicants to spend up to a total of 12 months outside Australia (either as one period of 12 months, or several periods totalling 12 months) during the 4 years immediately before making their application. The person will be taken to have been present in Australia for that time. The person may have been lawfully present in Australia as the holder of any kind of visa during this 4 year period, but cannot have been an unlawful non-citizen for any of this time. Subclause 22(1B) states that if: (a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and (b) the total period of the absence or absences was not more than 3 months; and (c) the person was a permanent resident during each period of absence; then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.


4 0 The purpose of proposed subclause 22(1B) is to allow the person to have spent up to 3 months outside Australia during the 12 month period immediately before the person made the application, provided the person was a permanent resident while overseas. Subclause (1B) allows applicants to spend up to 3 months outside Australia (either as one period of 3 months, or several periods totalling 3 months) during the 12 months immediately before making their application provided they are permanent residents at the time. The person must have held a permanent visa during that time overseas. Subclause (1B) provides that the person is taken to have been present in Australia as a permanent resident for each period of absence. If a person has been an unlawful non-citizen at any time, that person will need to spend 4 years in Australia since last ceasing to be an unlawful non-citizen before meeting the residence requirement for citizenship. Subclauses (1A) and (1B) reduce the complexity of the residential discretions in the Australian Citizenship Act 1948, in which certain periods of time can be treated as periods of permanent residence in Australia. Confinement in prison or psychiatric institution Subclause (1C) provides for the case where a person is confined to a prison or psychiatric institution. Subject to subclause (5A), the person is taken not to satisfy paragraph 22(1)(a) if, at any time during the 4 year period mentioned in that paragraph, the person was: (a) confined in a prison; or (b) 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. Subclause 22(1C) provides that, subject to subsection (5A), the person does not satisfy paragraph 22(1)(a) if, at any time in the 4 years immediately before making the application, the person was confined in a prison, or confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law. Subclause 22(5A) gives the Minister a discretion to decide that subclause (1C) does not apply to a person if, taking into account the circumstances that resulted in the person's confinement, the Minister is satisfied it would be unreasonable for that provision to apply to the person.


4 1 The effect of subclause (1C) is that if a person has been confined as described in subclause (1C) at any time, that person will need to spend 4 years in Australia since last being released from that confinement before being eligible for citizenship unless the Minister exercises the discretion in subclause (5A). Partial exemption--person born in Australia or former Australian citizen Subclause (2) provides for partial exemption from the residence requirements. Paragraphs (1)(a) and (1)(b) do not apply if the person was born in Australia; or was an Australian citizen at any time before the person made the application. This new subsection is the equivalent of paragraphs 13(5) of the old Act. Ministerial discretion--administrative error Subclause (4A) provides further elaboration on the application of subparagraph 21(1)(b)(i). It enables the Minister to treat a period as one in which the person was present in Australia otherwise, than as an unlawful non-citizen, where the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period. Subclause (5) provides that for the purposes of paragraph (1)(c) the Minister may treat as a period of permanent residence the period where the person was present in Australia, if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period. This subclause is the equivalent of paragraphs 13(4)(b)(v) of the old Act. Ministerial discretion--confinement in prison or psychiatric institution Subclause (5A) gives the Minister a discretion to decide that subclause 21(1C) does not apply in relation to a person if, taking into account the circumstances that resulted in the person's confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person. Subclause (1C) provides that subject to subclause (5A), the person does not satisfy paragraph (1)(a) if, at any time in the 4 years immediately before making the application, the person was confined in prison, or confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law. Subclause (5A) recognises that there may be cases in which a person is confined to prison or to a psychiatric institution where the circumstances resulting in that confinement are such that it would be appropriate for the Minister to have the discretion in subclause (5A)


4 2 that the person would not be required to restart the 4 year period to meet the residence requirement for citizenship. Ministerial discretion--person in Australia would suffer significant hardship or disadvantage Subclause (6) empowers the Minister, for the purposes of paragraph (1)(c), to treat a period as one in which the person was present in Australia as a permanent resident if, the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident. Ministerial discretion--spouse, widow or widower of Australian citizen Subclause (9) provides for Ministerial discretion in the case of a spouse, widow or widower of an Australian citizen. If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the person: (a) the person was a spouse of that Australian citizen during that period; and (b) the person was not present in Australia during that period; and (c) the person was a permanent resident during that period; and (d) the Minister is satisfied that the person had a close and continuing association with Australia during that period. This provision allows the Minister to treat periods spent overseas by an applicant as periods during which the person was present as a permanent resident in Australia. The person must have been a permanent resident and the spouse of an Australian citizen during the period overseas and satisfy the Minister that they had a close and continuing relationship with Australia during the period spent overseas. This makes clear that periods spent overseas by a spouse that may be counted towards time spent in Australia for the purposes of the residence requirement, must be as a permanent resident of Australia. Subclause 22(10) provides that for the purposes of subclause (9) "spouse" includes de facto spouse. This provision ensures that the same requirements apply to spouses and de facto spouses before the discretion in subclause 22(9) can be exercised. In particular, it ensures that de


4 3 facto spouses must continue to be in the de facto spouse relationship with the Australian citizen both during the period spent overseas, and at time of making their citizenship application. Ministerial discretion - person in an interdependent relationship New subclause 22(11) creates a similar discretion in relation to a person in an interdependent relationship with an Australian citizen. Such people may count time spent overseas as time spent in Australia as a permanent resident, provided certain requirements are met. For a person in an interdependent relationship, the requirements are that the person holds a permanent visa granted on the basis of the person's interdependent relationship with an Australian citizen, both at time of application and during the time spent overseas; and that the person was in that interdependent relationship both during the period spent overseas and at the time of application. To exercise this discretion, the Minister must also be satisfied that the person had a close and continuing relationship with Australia during the period spent overseas. Clause 23 Defence service requirement Clause 23 provides for `relevant defence service' as referred to in this subdivision. It specifies that for the purposes of `Section 21, a person has completed relevant defence service if the person: (a) has completed: (i) at least 3 months service in the permanent forces of the Commonwealth; or (ii) at least 6 months service in the Naval Reserve, the Army Reserve or Air Force Reserve; or (b) was discharged from that service as medically unfit for that service and who became so unfit because of that service. This provision is the equivalent of subsections 13(3) and (3A) of the old Act. Clause 24 Minister's decision Clause 24 provides further guidance in relation to the Minister's decision made under this Subdivision.


4 4 Subclause (1) specifies that if a person makes an application under new section 21, the Minister must approve or refuse the application. Notice of the decision must be given in writing. A note is added at the end of this subclause specifying that the Minister may cancel an approval. Reference is made in the note to section 25 which addresses this matter in detail. Subclause (1A) provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8). The purpose of this subclause is to put it beyond doubt that the Minister cannot approve an applicant if the applicant does not meet the eligibility requirements in clause 21. Subclause (2) provides that the Minister may refuse to approve the person becoming an Australian citizen, despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8). This provides a clear link to the provisions under which the person may be eligible to become a citizen and provides that despite being eligible, the Minister may nevertheless refuse to approve the person becoming an Australian citizen. The purpose of this subclause is to retain the existing discretion (under section 13 of the old Act) of the Minister not to approve an application in certain cases. This discretion has been in existence since the inception of the Act in 1949. It has been a uniform feature of naturalisation legislation (ie. citizenship by conferral) throughout the Commonwealth for over a century to give the Executive a wide discretion regarding the approval or refusal of citizenship. This is because Australian citizenship by conferral is a privilege and not a right. The new Act will continue to promote this understanding. Persons who satisfy the eligibility criteria are generally approved to become citizens. However, it is conceivable that a person could meet the criteria but nevertheless it may not be in the public interest for that person to become an Australian citizen. An example may include a person whom the Australian community would consider as a person who incites hatred or religious intolerance. That person may not necessarily have been convicted of specific offences and may not necessarily fall strictly into the category of refusal on the basis of the good character requirement, but could be within this discretion. Identity


4 5 Subclause (3) deals with the issue of identity. It makes clear that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. At the end of this provision a note is made which directs the reader to Division 5. That Division contains the identity provisions. National security Subclauses 24(4), (4A) and (4B) relate to the national security requirements for a person to be approved to become an Australian citizen by conferral. Subclause (4) provides that the provision applies only if the person is not covered by subsection (4B). The purpose is to provide specific requirements regarding national security for stateless people (i.e. people covered by new subclause (4B)), and exclude such people from having to meet the standard national security requirement in subclause 24(4). Subclause 24 (4) provides that the Minister must not approve a person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act). The terms "adverse security assessment" and "qualified security assessment" are defined in clause 3 of the Bill. The purpose of this subclause is to ensure that the Minister must not approve a person becoming an Australian citizen where the person is the subject of an adverse security assessment or a qualified security assessment as described above. A "security assessment" is reviewable under Part IV of the ASIO Act. The review would be undertaken by the Security Appeals Division of the Administrative Appeals Tribunal. Subclause 24(4A) sets out the national security requirement for stateless people (i.e. people covered by subclause (4B)). It provides that if a person is covered by subparagraph (4B)(b)(i) (i.e. stateless people born in Australia), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of either a national security offence, or an offence against an Australia law or a foreign law, for which the person was sentenced to at least 5 years imprisonment. Subclause (4A) further provides that if subparagraph (4B)(b)(ii) applies to the applicant (i.e. stateless people born outside Australia who, at the time of their birth, had a parent who was an Australian citizen), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.


4 6 The term "national security offence" is defined at clause 3 of the Bill. The definition includes several listed offences, and other offences determined by the Attorney-General under clause 6A. Clause 6A makes it clear that offences determined by the Attorney- General either before or after an application for citizenship is made, but before it is decided, will apply to that application. Subclause 24(4B) sets out the people to whom subclause (4A) will apply. It will apply to a person who, at time of the citizenship application, is not a national or citizen or any country, and who was either born in Australia, or was born outside Australia and at the time of person's birth, had a parent who was an Australian citizen. These provisions address a recommendation made by the Senate Committee in its inquiry into the original Bill, so as to limit the exclusion from citizenship on national security grounds in the case of a stateless person to applicants who have been convicted of a security related offence in accordance with the Convention on the Reduction of Statelessness. The Convention provides for this limitation where the applicant for citizenship had, at the time of their birth outside Australia, a parent who was an Australian citizen (Article 4); or where the person was born in Australia (Article 1). Person not present in Australia Subclause (5) prevents approval of an application for citizenship where a person is not present in Australia if: (a) the person is covered by subsection 21(2) (general eligibility), (3) (persons who have a permanent physical or mental incapacity at the time of application which means that the person is not capable of understanding the application or (4) (persons who are aged 60 or over or to persons who have a hearing, speech or sight impairment at the time of application); and (b) the Minister did not apply subsection 22(9) in relation to the person. (which provides for a discretion for a permanent resident spouse, widow, or widower of an Australian citizen outside Australia that can satisfy the Minister that had a close and continuing association with Australia); and (c) the Minister did not apply subsection 22(11) in relation to the person. Paragraph (5)(a) is consistent with subsection 13(1A) of the current Act. Paragraph (5)(b) enables spouses who may be overseas with their Australian citizen spouse to be approved to become an Australian citizen while outside Australia. The exception is consistent with the introduction of the residence discretion for the spouse of an Australian citizen.


4 7 Paragraph (5)(c) provides that the Minister did not apply subsection 22(11) in relation to the person. Subclause 22(11) extends the residence discretion to people in an interdependent relationship with an Australian citizen, allowing the Minister to treat periods spent overseas as periods spent in Australia as a permanent resident in certain circumstances. This means that where the Minister has exercised the discretion in subclause 22(9) or 22(11) in relation to a person covered by subclause 21(2), (3) or (4) the Minister can approve the person becoming an Australian citizen even if they not present in Australia. Offences Subclause (6) prevents the Minister from approving the application for citizenship of a person who is subject to the following offence related provisions: a) 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 b) when the person is confined to a prison in Australia; or c) 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 sentence; or d) if the person is a serious repeat offender 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 e) 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 sentence; or f) if the person: (i) has been released by a court from serving the whole or a part of a sentence of imprisonment; and (ii) has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with 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 a condition of that security; or g) 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. Subclause (6) is the equivalent of paragraphs 13 (11) (a), (b), (c), (ca), (d) (e) (f) of the old Act.


4 8 Cessation of citizenship Subclause (7) provides that if the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen. Subclause (7) is the equivalent of paragraph 13(11)(g) of the old Act. Statelessness Subclause (8) provides an exception to subclauses (6) and (7), clearly specifying that they do not apply to a person who is stateless (as provided by subclause 21(8)). This new subsection is the equivalent of subsection 23D(3A) of the old Act. Clause 25 Minister may cancel approval Clause 25 provides for certain situations where the Minister may cancel the approval of an application under the proposed new Section 24. Terminology has been amended from revocation of approval in the old Act to cancellation of approval under this Act. Subclause (1) specifies that the approval given to a person under section 24 may be cancelled by the Minister if the person has not become an Australian citizen under section 28; and either of the following situations apply: · the eligibility criteria has not been met; or · the person has failed to make pledge of commitment Eligibility criteria not met Subclause (2) provides clarification in relation to the first situation. This situation arises where certain eligibility criteria can no longer be met. It specifies that this arises if: (a) the person is covered by subsection 21(2), (3) or (4) (ie: the general eligibility, permanent physical or mental incapacity or a person aged 60 or over); and (b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:


4 9 (i) not a permanent resident; or (ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or (iii) not of good character. The criterion under which the Minister may consider cancelling a person's approval for citizenship under section 14B of the current Act covers all of the eligibility criteria (under section 13 of the old Act). This new subsection only lists those criteria under which, in practice, the Minister would consider the cancellation of a person's approval for citizenship by conferral. Failure to make pledge of commitment Subclause (3) clarifies the second situation. It applies if: (a) the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and (b) the person's reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection. This new subsection is the equivalent of paragraphs 14B(1)(c) and 14B(4) of the old Act Cancellation of child's approval Subclause (4) provides for the situation where a child's approval is cancelled. It specifies that if: · a child aged under 16 makes an application under section 21 at a particular time; and · one or more responsible parents of the child make applications under section 21 at that time; and · the Minister decides under section 24 to approve the child and one or more of the responsible parents becoming Australian citizens; and · the Minister cancels the approval given to each responsible parent; the Minister must, by writing, cancel the approval given to the child. It is current policy that a child, who has applied at the same time as a responsible parent, does not become an Australian citizen in circumstances where both parent's applications are not approved. To do so would leave the possibility open for the child being prevented obtaining the citizenship of their parent's birth country because they are an Australian citizen.


5 0 Effect of cancellation Subclause (5) addresses the effect of cancellation. In circumstances where the Minister cancels an approval given to a person, the approval is taken never to have been given. This provision is the equivalent of subsection 14B(6) of the old Act. A note is attached at the end of this subclause, which states that a person cannot become an Australian citizen under this Subdivision unless the Minister approves the person becoming an Australian citizen. The intention is to make it clear that this subsection has the effect that the person will need to make another application if they want to become an Australian citizen. Clause 26 Pledge of commitment must be made Clause 26 outlines a pledge of commitment must be made. Subclause (1) outlines the requirement that a person must make a pledge of commitment to become an Australian citizen unless the person: (a) is aged under 16 at the time the person made the application to become an Australian citizen; or (b) has a permanent physical or mental incapacity at the time the person made the application to become an Australian citizen that means the person is not capable of understanding the nature of the application at that time; or (c) is covered by subsection 21(6), (7) or (8). A note is provided at the end of this subclause to specify that section 27 provides further information on how the pledge is to be made. Paragraphs 1(a) and (b) are the equivalent of paragraph 15(b) of the old Act. Subclause 1(c) does not require persons who meet the stateless provision to make a pledge. Those covered by subclauses 21(6) and (7) are also not required to make a pledge (consistent with the citizens by descent). Subclause (2) provides that a person must not make a pledge of commitment before the Minister approves the person's application to become an Australian citizen. If a pledge of commitment is made by the person before that time, it will not have any effect. Subclause (2) has been incorporated into the new Act for the purposes of clarity. Delayed making of pledge


5 1 Subclause (3) addresses the occasion where the Minister may defer the making of a pledge. This situation will arise if the Minister is satisfied that: · a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been notified at this point); or · the person has been or may be charged with an offence under an Australian law. Under these circumstances, where the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period Subclause (4) limits this deferral time and states that the Minister must not specify a period that exceeds, or periods that in total exceed, 12 months. Subclauses (3) and (4) are the equivalent of subsections 14C(1) and (2) of the old Act. Consistent with the old Act, the decision to defer the making of the pledge is not reviewable under this Act. This is because this is not a decision to cancel an approval. If a decision to cancel an approval is made at some time before the making of the pledge that decision is reviewable (section 52(1)(c)). Subclause (5) provides that the Minister may revoke the determination. This must be done in writing. Subclause (6) provides that if such a determination is in force, the person must not make a pledge of commitment before the end of the specified period. This is the equivalent of subsection 14C(4) of the old Act. For the purposes of clarity, this subsection also provides that if a pledge is made before the end of that time it is of no effect. Clause 27 How pledge of commitment is to be made Clause 27 addresses how the pledge of commitment is to be made. This is the equivalent of section 15 of the old Act with the exception of the removal of specified persons as persons before whom the citizenship pledge can be made. Form of pledge Subclause (1) provides that a pledge of commitment must be made in accordance with forms which are set out in Schedule 1 of the Act. This is the equivalent of subparagraph 15(1)(a)(i) of the old Act. Prescribed arrangements


5 2 Subclause (2) states that a pledge of commitment must be made according to arrangements which are prescribed by the regulations. Matters that may be prescribed the regulations include that the pledge is to be made in public (provided for by section 41 of the old Act) and that the validity of the pledge is not affected by reason only that a pledge of commitment was not made before an Australian citizen (provided for in subsection 15(3) of the old Act). Persons who may receive pledge Subclause (3) specifies that the pledge of commitment must be made before: (b) the Minister; (c) or a person authorised under subsection (4); or (d) a person who is included in a class of persons authorised under subsection (5). Subclause (4) enables the Minister to authorise a person for the purposes of paragraph (3)(b). The authorisation must be given in writing. Subclause (5) states that the Minister may, by writing, authorise a class of persons for the purposes of paragraph (3)(c). Clause 28 Day citizenship begins etc. Clause 28 addresses the day on which citizenship begins under this subdivision. Subclause (1) addresses the situation where a person is required to make pledge of commitment. In that case, the person becomes an Australian citizen on the day they make the pledge. Subclause (2) provides for the case where a person is not required to make pledge of commitment. In that situation, (but subject to subclause (3)), a person not required to make a pledge of commitment becomes an Australian citizen on the day the Minister approves the person becoming an Australian citizen. Subclause (3) provides for applications made at the same time by a child and one or more responsible parents of the child. In that case, subclause (2) does not apply to a child aged under 16 at the time the child made the application to become an Australian citizen if: (a) one or more responsible parents of the child made applications under Section 21 at that time; and (b) the Minister decided under Section 24 to approve the child and one or more of the responsible parents becoming Australian citizens.


5 3 While the child is not required to take the pledge, it does not fall within subclause (2) as the child's application is considered and dependent upon the parent's application. Subclause (4) states that if one or more of the responsible parents become Australian citizens under this Section, the child becomes an Australian citizen on the first day on which a responsible parent becomes an Australian citizen. The effect of these provisions is to clarify that, if the Minister approves the responsible parents application, whether the child subsequently becomes a citizen will depend upon whether that parent makes a pledge of commitment if required to do so in order to become an Australian citizen. Subdivision C--Resuming citizenship This subdivision addresses resumption of citizenship, restructuring provisions within the old Act (sections 23AA, 23AB, 23A and 23B, Division 4, Part 3). It has also amended provisions from the old Act by removing restrictions and introducing provisions to ensure that former citizens can apply to resume their citizenship regardless of whether they lost or renounced their citizenship in order to acquire or retain another citizenship or to avoid significant hardship or detriment. Further details are outlined below. This subdivision has been incorporated within this Division, consistent with the aim of bringing together in the one place in the Act, the circumstances which require the making of an application to become an Australian citizen. Clause 28A Simplified outline Clause 28A provides a simplified outline of Subdivision C, which deals with resuming citizenship. The outline explains that a person may be eligible to become an Australian citizen under Subdivision C if the person ceased to be an Australian citizen under the Bill or under the old Australian Citizenship Act 1948. It specifies that the person must make an application for resumption of Australian citizenship and must be eligible to be an Australian citizen again to be approved. It also makes clear that a person may be refused citizenship even if the person is eligible to resume citizenship. The outline further states the Minister must approve or refuse an applicant becoming an Australian citizen again. It states that the Minister may be required to refuse the application for resumption of citizenship on various grounds and refers readers to the relevant provisions, as follows:


5 4 · non-satisfaction of identity - subsection 30(3); · national security - subsections 30(4) to (6). The outlines states that if the application is approved by the Minister, the person will be registered as an Australian citizen again. Clause 29 Application and eligibility for resuming citizenship Clause 29 deals with the issue of application and eligibility for resuming citizenship. Subclause (1) provides that a person may make an application to the Minister to become an Australian citizen again. Two notes are attached at the end of this subclause. · Note 1 directs the reader to section 46 which sets out application requirements (which may include the payment of a fee). · Note 2 states that the person may also apply to become an Australian citizen again under Subdivision A, AA or B. The resumption provisions within the old Act (sections 23AA, 23AB, 23A, 23B) have been combined into subclauses (2) and (3). The eligibility criteria under these subsections has been expanded from the old Act to provide for those who renounced their Australian citizenship for reasons of hardship or detriment (for example, in order to obtain a security clearance to secure employment in the country of their other residence) to resume their Australian citizenship. Cessation under this Act Subclause (2) outlines that a person may be eligible to become an Australian citizen again under this Subdivision if the person ceases to be a citizen under the Act. Eligibility criteria are that the person ceased to be an Australian citizen under the renunciation provisions (clause 33) in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or the person is the child of a responsible parent who renounces citizenship (clause 36). In addition, a further requirement is that, if the person is aged 18 or over at the time the person made the application, the Minister is satisfied that they are of good character. The assessment of their good character is to be that which exists at the time of the Minister's decision on the application.


5 5 Two explanatory notes are provided at the end of this subclause:. · Note 1 makes reference also to section 32. This addresses the provisions concerning resumption of their former citizenship status. · Note 2 clarifies that a person who ceases to be an Australian citizen under section 35 or 34 may apply to become an Australian citizen again under Subdivision A, AA or B, which may be a different status. Cessation under old Act Subclause (3) outlines that a person may be eligible to become an Australian citizen again under this subdivision where a person ceased to be an Australian citizen under the old Act. A person is eligible to become an Australian citizen again under this Subdivision if: a) the person ceased to be an Australian citizen under: i. Section 17 (about dual citizenship) of the old Act; or ii. Section 18 (about renunciation) of the old Act in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or iii. Section 20 (about residence outside Australia) of the old Act; or iv. Section 23 (about children) of the old Act; and a) if the person is aged 18 or over at the time the person made the application--the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application. Clause 30 Minister's decision Clause 30 provides further direction in relation to the Minister's decision under this Subdivision. Subclause (1) specifies that if a person makes an application under section 29, the Minister must approve or refuse to approve the person becoming an Australian citizen again. Notice of the decision must be in writing. Subclause (1A) states that the Minister must not approve the person becoming an Australian citizen again unless the person is eligible to become an Australian citizen again under subclause 29(2) or (3). This provision makes a clear link between the eligibility requirements in subclauses 29(2) or (3) and the Minister's power in subclause 30(1).


5 6 Subclause 30(2) provides that the Minister may refuse to approve the person becoming an Australian citizen again despite the person being eligible to "become an Australian citizen again under subsection 29(2) or (3)". This provides a clear link to the provisions under which the person may be eligible to become a citizen again and provides that despite being eligible, the Minister may nevertheless refuse the person's application. The purpose of this subclause is to retain the existing discretion in the old Act for the Minister not to approve an application in certain cases. This discretion has been in existence since the inception of the Act in 1948. It has been a uniform feature of naturalisation legislation (ie citizenship by conferral) throughout the Commonwealth for over a century to give the Executive a wide discretion regarding the approval or refusal of citizenship applications . This is because Australian citizenship by conferral is a privilege and not a right. The new Act should continue to promote this understanding. Persons who satisfy the eligibility criteria are generally approved to become citizens. However, it is conceivable that a person could meet the criteria but nevertheless it may not be in the public interest for that person to become an Australian citizen. An example may include a person whom the Australian community would consider as a person who incites hatred or religious intolerance. That person may not necessarily have been convicted of specific offences and may not necessarily fall strictly into the category of refusal on the basis of the good character requirement, but could be within this discretion Identity Subclause (3) provides that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. At the end of this provision a note is made which directs the reader to Division 5 which contains the identity provisions. National security Subclauses (4), (5) and (6) relate to the national security requirements for approval of applications for resumption of citizenship. These provisions provide specific requirements regarding national security for stateless people (i.e. people covered by new subclause (6)), and exclude such people from having to meet the standard national security requirement in subclause 30(4). Subclause (4) provides the security requirements in cases where the person is not covered by subclause (6). In that situation, the Minister must not approve the person becoming an


5 7 Australian citizen again at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) hat the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act). The terms "adverse security assessment" and "qualified security assessment" are defined in clause 3 of the Bill. The purpose of this subclause is to ensure that the Minister must not approve a person becoming an Australian citizen again where the person is the subject of an adverse security assessment or a qualified security assessment as described above. A security assessment is reviewable under Part IV of the ASIO Act. The review would be undertaken by the Security Appeals Division of the Administrative Appeals Tribunal. Subclause (5) sets out the national security requirement for stateless people (i.e. people covered by subclause (6)). It provides that if a person is covered by subparagraph (6)(b)(i) (i.e. stateless people born in Australia), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of either a national security offence, or an offence against an Australia law or a foreign law, for which the person was sentenced to at least 5 years imprisonment. Subclause (5) further provides that if subparagraph (6)(b)(ii) applies to the applicant (i.e. stateless people born outside Australia who, at the time of their birth, had a parent who was an Australian citizen), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence. The term "national security offence" is defined at clause 3 of the Bill. The definition includes several listed offences, and other offences determined by the Attorney-General under clause 6A. Clause 6A makes it clear that offences determined by the Attorney- General before or after an application for citizenship is made, but before it is decided, will apply to that application. Subclause 30(6) sets out the people to whom subclause (5) will apply. It will apply to a person who, at time of the citizenship application, is not a national or citizen or any country; and who was either born in Australia, or was born outside Australia and at the time of person's birth, had a parent who was an Australian citizen. These provisions address a recommendation made by the Senate Committee in its inquiry into the original Bill, so as to limit the exclusion from citizenship on national security grounds in the case of a stateless person has been limited to applicants who have been


5 8 convicted of a security related offence in accordance with the Convention on the Reduction of Statelessness. The provision reflects the fact that the Convention provides for this limitation where the applicant for citizenship had, at the time of their birth outside Australia, a parent who was an Australian citizen (Article 4); or where the person was born in Australia (Article 1). Clause 31 Registration Clause 31 sets out the requirements for registration of the approval for resumption of citizenship. It states that if the Minister approves the person becoming an Australian citizen again, the Minister must register the person in the manner prescribed by the regulations. Clause 32 Day citizenship begins again etc. Clause 32 addresses the day on which citizenship begins under this subdivision.. Subclause (1) provides that a person becomes an Australian citizen again on the day on which the Minister approves the person becoming an Australian citizen again. Same kind of citizenship--former citizen under this Act Subclause (2) makes it clear that the type of citizenship previously held under this Act will be the same kind of citizenship which is taken up again by the person. In other words, if the person was previously an Australian citizen under Subdivision A, AA or B, the person becomes an Australian citizen again under that same Subdivision, it is the clear policy intention of the legislation that a person cannot resume a different citizenship to that previously held. It should be noted that this is in contrast to the person's ability to separately apply for a new type of citizenship. A note is added to the end of subclause (2) which outlines that one of the effects of this subsection is that the Minister is able to revoke the person's (resumed) citizenship and refers the reader to section 34. Same kind of citizenship--former citizen under old Act Subclause (3) deals with a similar issue to subclause (2) only applying this to the situation under the old Act. This again seeks to make the policy intention clear that a person cannot take up a `kind' of citizenship that was not held previously.


5 9 As a consequence, it provides that if the person, before ceasing to be an Australian citizen, was an Australian citizen under the provision set out in column 2 of the following table, the person becomes an Australian citizen again under the provision set out in column 3 of the table. Note, this is in contrast to the person's ability to separately apply for a new type of citizenship. An explanatory table as outlined below is provided for further clarification. Same kind of citizenship Column Column 2 Column 3 1 Provision under which person Provision under which Item was a citizen person becomes a citizen again 1 Section 10B, 10C or 11 of the Subdivision A of this old Act Division 2 Division 2 of Part III of the Subdivision B of this old Act Division A note is added at the end of this subsection making it clear that one of the effects of this subsection is that the Minister is able to revoke the person's (resumed) citizenship and refers the reader to section 34. Division 3--Cessation of Australian citizenship Division 3 of the new Act outlines the circumstances where a person ceases to be an Australian citizen. This is a renaming of the former "Loss of Citizenship" division (Division 4, Part 3) of the old Act. Clause 32A Simplified outline Clause 32A provides a simplified outline of Division 3 - Cessation of Australian citizenship. The outline sets out the four ways in which a person can cease to be an Australian citizen and refers readers to the relevant provisions as follows: · the person may renounce their Australian citizenship - section 33; · if the person did not automatically become an Australian citizen, the Minister can revoke their citizenship - section 34; · if a person serves in the armed forces of a country at war with Australia - section 35;


6 0 · if the person is a child of a responsible parent who ceases to be an Australian citizen, the Minister can revoke the child's citizenship in certain situations section 36. Clause 33 Renunciation Clause 33 provides for the renunciation of a person's Australian citizenship. Subclause (1) enables a person to renounce their Australian citizenship. This must be done by application to the Minister. The application requirements are provided for in the note attached at the end of subclause (1) which refers to section 46. Section 46 further sets out the application requirements (which may include the payment of a fee). This new provision is the equivalent of section 18 of the old Act. Minister's decision Subclause (2) provides that the Minister must by writing either approve or refuse to approve the person renouncing his or her Australian citizenship. Subclause (3) provides that subject to this section, the Minister must approve the person renouncing his or her Australian citizenship if the Minister is satisfied that: · the person is aged 18 or over, and is a national or citizen of a foreign country, at the time the person made the application; or · the person was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country because the person is an Australian citizen. The purpose of this provision is to ensure that the person will not become stateless on surrendering their Australian citizenship. Subclause (4) provides that the Minister must not approve the person renouncing his or her Australian citizenship unless the Minister is satisfied of the identity of the person. The intention here is to ensure that another person, through failure to appropriately identify an applicant, will lose their Australian citizenship. At the end of this subclause a note is made which directs the reader to Division 5 which contains the identity provisions.


6 1 Subclause (5) provides that the Minister may refuse to approve the person renouncing his or her Australian citizenship if the person: · is a national or citizen of a foreign country at the time the person made the application; and · made the application during a war in which Australia is engaged. The intention is to ensure that a person is not able to absolve themselves from their responsibilities as an Australian citizen in time of war, by renouncing citizenship. An example of this may include conscription into the armed services. Subclause (6) provides that the Minister must not approve the person renouncing his or her Australian citizenship if the Minister considers that it would not be in the interests of Australia to do so. Subclause (7) outlines the circumstances which prevent the Minister from approving a person renouncing their citizenship. The Minister must not approve the person's application to renounce citizenship unless the Minister is satisfied that the person: · is a national or citizen of a foreign country immediately before the Minister's decision on the application; or · will become a national or citizen of a foreign country immediately after the approval, if the Minister approves the application. The purpose of this subclause is to provide a person with the opportunity to renounce their Australian citizenship. A person's application to renounce will only ever be approved if the Minister is satisfied that at the exact time of renunciation the person will become a national or citizen of another country. This is to ensure the person does not become stateless. Time citizenship ceases Subclause (8) clarifies the time at which Australian citizenship ceases, following the approval by the Minister of an application to renounce that citizenship. If the Minister approves a person renouncing his or her Australian citizenship, the person ceases to be an Australian citizen at the time of the approval. A note is provided at the end of this subclause which states that a child of the person may also cease to be an Australian citizen and reference is made to Section 36 (which deals with the circumstances under which a child ceases to be an Australian citizen). Clause 34 Revocation by Minister


6 2 Clause 34 sets out the circumstances in which the Minister may revoke a person's citizenship. The terminology has been amended from deprivation in the old Act to revocation under this Act to reflect current usage. Citizenship by descent or for persons adopted in accordance with the Hague Convention on Intercountry Adoption Subclause (1) addresses the issue of revocation where a person has acquired citizenship by descent under Subdivision A or by adoption in accordance with the Hague Convention on Intercountry Adoption under Subdivision AA. It provides that the Minister, by written notice, may revoke a person's Australian citizenship if: (a) the person is an Australian citizen under the descent provisions (ie: Subdivision A of Division 2 - including because they resumed citizenship under Section 32) or is an Australian citizen by adoption (i.e. Subdivision AA of Division 2 - including because they resumed citizenship under Section 32); and (b) either of the following apply: (i) the person has been convicted of an offence against Section 50 of this Act or against Section 137.1 or 137.2 of the Criminal Code in relation to the person's application to become an Australian citizen; (ii) the person obtained the Minister's approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and (c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. Paragraph (1)(a) is similar to regulation 7C of the Australian Citizenship Regulations 1960 enabling the Minister to cancel the registration of a person's name if satisfied the registration has been made on the basis of false information. However, this subsection has been amended to require that a person be convicted of an offence against section 50 of this Act (the equivalent of section 50 of the old Act) or the related sections of the Criminal Code. Paragraph (1)(b) is consistent with new paragraph (2)(b)(iv) which introduces a new power to revoke Australian citizenship if the person obtained approval to become an Australian citizen as result of third-party fraud, that is, the fraud was perpetrated by a


6 3 person other than the person registered as a citizen by descent or approved on the basis of their adoption. Paragraph (1)(c) provides that the Minister must also be satisfied that the person's continued citizenship is contrary to the public interest. Citizenship by conferral Subclause (2) addresses the issue of revocation, where a person has acquired citizenship by conferral. It provides that the Minister, by written notice, may revoke a person's Australian citizenship if: (a) the person is an Australian citizen under conferral provisions (ie: Subdivision B of Division 2 (including relevant resumption under Section 32); and (b) any of the following apply: (i) the person has been convicted of an offence against Section 50 of this Act or against 137.1 or 137.2 of the Criminal Code in relation to the person's application to become an Australian citizen; (ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5); (iii) the person obtained the Minister's approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6); (iv) the person obtained the Minister's approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and (c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. Subclause (3) provides that the Minister must not decide under subsection (2) to revoke a person's Australian citizenship if: (a) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5); and (b) the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country.


6 4 Subclauses (2) and (3) are consistent with section 21 of the old Act. Amendments include the incorporation of relevant Criminal Code provisions into subparagraph 2(b)(i) and subparagraph 2(b)(iv) to revoke a person's approval to become a citizen as result of third party fraud. The third party provision is consistent with the other provisions in that the person who committed the fraud must be first convicted of an offence (that led directly to the approval of citizenship) before revocation can be considered. Also consistent with the other revocation provisions it can only proceed if it would be contrary to the public interest for the person to remain an Australian citizen. The power to revoke a person's Australian citizenship has not been delegated by the Minister and as a matter of practice is carried out in accordance with the principles of natural justice. Time citizenship ceases Subclause (4) deals with the time that citizenship ceases under these provisions. It provides that if the Minister revokes a person's Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation. A note is provided at the end of this subclause which states that a child of the person may also cease to be an Australian citizen and reference is made to section 36 (which deals with the circumstances under which a child ceases to be an Australian citizen). Serious offence Subclause (5) defines "convicted of a serious offence" for the purpose of this clause. It clarifies that a person has been convicted of a serious offence if: · they have been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and · they have committed the offence at any time before the person became an Australian citizen. This is similar to the `offences' within subparagraph 21(1)(ii) of the old Act. However, the offence provision has been extended from the time of the approval of the application up until the time the person becomes an Australian citizen. It is possible that it could be up to 12 months between the person being approved and the time of the pledge. This provides for revocation in circumstances where an offence has been committed at any time up until the person actually becomes a citizen by making the pledge of commitment. Migration-related fraud Subclause (6) addresses the issue of revocation due to migration related fraud.


6 5 For the purposes of this clause, it clarifies the concept of migration related fraud. It states that a person obtained the Minister's approval to become an Australian citizen as a result of migration-related fraud if and only if: a) at any time, the person was convicted of an offence committed at any time before the Minister gave the approval against: · Section 234, 236, 243 or 244 of the Migration Act 1958; or · Section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code. b) the act or omission that constituted the offence was connected with the person's entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia. Subclause (7) provides additional clarification stating that subclause (6) does not apply to a person in respect of an offence if the Minister is satisfied that the act or omission that constituted that offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident. This is the equivalent of subsections 21(1A) and (1B) of the old Act. Third-party fraud Subclause (8) is new. Subclause (8) addresses the issue of revocation due to third party fraud. It states that, for the purposes of this clause, a person (the applicant) obtained the Minister's approval to become an Australian citizen as a result of third-party fraud if and only if: · at any time, another person was convicted of an offence against Section 134.1, 135.2, 135.4, 136.1, 137.1, 137.2, 139.1, 141.1, 142.1, 142.2, 144.1, 145.1, 145.2, 145.4, 145.5 or 149.1 of the Criminal Code that the other person committed at any time before the Minister gave the approval; and · the act or omission that constituted the offence was connected with the Minister approving the applicant becoming an Australian citizen. Charge proved but no conviction Subclause (9) defines "conviction of an offence" for the purpose of this clause to be: · in relation to a law of the Commonwealth--includes a reference to the making of an order under Section 19B of the Crimes Act 1914 in relation to the offence; and


6 6 · in relation to a law of a State or Territory or a foreign country--includes a reference to the making of an order under the corresponding provision of a law of the State or Territory or foreign country in relation to the offence. This is the equivalent of subsections 21(2) and (3) of the old Act. Clause 35 Service in armed forces of enemy country Clause 35 provides for automatic cessation of Australian citizenship as a result of a person's service in the armed forces of another country. This is the equivalent of section 19 of the old Act. Subclause (1) provides that a person ceases to be an Australian citizen if the person: · is a national or citizen of a foreign country; and · serves in the armed forces of a country at war with Australia. Subclause (2) provides that the person ceases to be an Australian citizen at the time the person commences to serve in that enemy country. A note is provided at the end of this clause which states that a child of the person may also cease to be an Australian citizen and reference is made to section 36 (which deals with the circumstances under which a child ceases to be an Australian citizen). Clause 36 Children of responsible parents who cease to be citizens Clause 36 provides for the children of responsible parents who cease to be citizens. Subclause (1) provides for the situation where a person ceases to be an Australian citizen at a particular time, (termed the cessation time) and the consequent effects upon their children. Where cessation of Australian citizenship occurs under clause 33 (renunciation), 34 (revocation) or 35 (service in armed forces of enemy country) and the person is a responsible parent of a child aged under 18, the Minister may revoke the child's Australian citizenship. If the Minister does so, the child ceases to be an Australian citizen at the cessation time of the revocation of the parent. This revocation must be by written notice.


6 7 This subclause introduces a discretion regarding the child's Australian citizenship should a responsible parent cease to be an Australian citizen under sections 33 and 35 of the Act. In the old Act cessation was by operation of law. Exception--another responsible parent Subclause (2) provides for an exception to subclause (1). This will operate where, at the relevant time of revocation (the cessation time), there is a responsible parent who is an Australian citizen; and if there ceases to be such a responsible parent because of the death of a responsible parent--at any time after that death. This subsection is the equivalent of subsection 23(3) of the old Act. Exception--statelessness Subclause (3) provides an exception to revocation in order to prevent statelessness of the child. The Minister must not revoke a child's Australian citizenship under subclause (1) if the Minister is satisfied that the child would then become a person who is not a national or citizen of any country. This subclause is the equivalent of the statelessness exception in subsections 23(2) and (3) of the old Act. The power to revoke a person's Australian citizenship has not been delegated by the Minister and as a matter of practice is carried out in accordance with the principles of natural justice. Division 4--Evidence of Australian citizenship Division 4 of the new Act outlines evidence of Australian citizenship. Consistent with the approach to make clearer, better structured and easier to understand citizenship law, this Division simplifies numerous provisions under the old Act which deal with the process of obtaining evidence of Australian citizenship. As a consequence, sections 36, 42, 43, 44, 44A, 45, 46, 46A, 47, 47A, 48 and 49 of Part V of the old Act have now been streamlined. Clause 37 Evidence of Australian citizenship Clause 37 outlines provisions addressing evidence of Australian citizenship. Subclause (1) provides that a person may make an application to the Minister for evidence of the person's Australian citizenship.


6 8 The application requirements are provided for in the note attached at the end of the subclause which refers to section 46. That section sets out further application requirements (which may include the payment of a fee). Notice Subclause (2) indicates that the Minister may give the person a notice, stating that the person is an Australian citizen at a particular time. This is a discretionary power. The language used here regarding the form of evidentiary `notice' has been left intentionally wide. In particular, it may be noted that there is no mention of `written' notice. This is intentional as the purpose is to be able to respond to future whole of government proof of identity initiatives in relation to the issue of evidence of a particular status. Subclause (3) provides that the notice must contain any other matter prescribed by the regulations. Identity Subclause (4) prevents the Minister from giving the person such a notice unless the Minister is satisfied of the identity of the person. At the end of this subclause a note is made which directs the reader to Division 5 which contains the identity provisions. Evidentiary status Subclause (5) clarifies the status of such notice providing that it is prima facie evidence of the matters in the notice. Cancellation Subclause (6) provides that the Minister may cancel a notice given to a person under this clause. The notice of cancellation is to be given in writing. There is no merits review in relation to the cancellation of such notice as cancellation of such notice has no effect on a person's citizenship status. Clause 52 provides for the review of decisions affecting a person's status as an Australian citizen under the Act. Clause 38 Surrender of evidentiary notice Clause 38 provides for the surrender of evidentiary notice.


6 9 Request for surrender Subclause (1) addresses the situation where a request is made for the surrender of an evidentiary notice. If the Minister makes a decision to revoke a person's Australian citizenship (under clause 34) and the person holds a notice under clause 37, (ie: giving evidence of their Australian citizenship) the Minister may request the person to surrender the notice. This is equivalent to paragraph 48(1)(a) of the old Act. New subclause (2) states that if the Minister makes a decision to cancel such notice, a request may be made to the person to surrender the notice. The request is to be made by the Minister and the notice must be surrendered to the Minister. The purpose is to ensure that the person is no longer able to use this as evidence of Australian citizenship when this is no longer the case. Form of request Subclause (3) specifies the form that the request must take. It provides that a request given to a person under subclause (1) or (2) must: · be made in writing; and · specify the day on or before which the person must surrender the notice (at least 28 days after the day of the request); and · specify how the person is to surrender the notice to the Minister; and · contain a statement that a failure to comply with the request is an offence. Offence Subclause (4) makes clear the nature of the above offence. A person commits an offence if: · the person is given a request that is in accordance with this section; and · the person fails to comply with the request. Penalty for contravention of this subclause is 10 penalty units. Subsection 48(3) of the old Act provided for offences for contravention of paragraph 48 (1)(a) of the old Act equivalent to subsection (1). Clause 39 Altering evidentiary notice Clause 39 provides that an offence has been committed if a person alters a notice submitted under clause 37. This is the consistent with section 49 of the old Act. A technical amendment has been made to express the monetary penalties in penalty units rather than dollar amounts.


7 0 Division 5--Personal identifiers Division 5 of the new Act provides for personal identifiers. This Division enhances the Government's ability to accurately identify, or authenticate the identity of, persons seeking to become Australian citizens by application and persons seeking evidence of their Australian citizenship. It is consistent with the current requirements for proof of identity within the citizenship process. At the same time, it provides protection for persons who are required to provide their personal identifiers. For example, it specifically prohibits a type of personal identifier that involves the use of an intimate forensic procedure. Under this Act, personal identifiers are not required in order to make a valid application but are tied to the criteria to be satisfied before an application under the Act is approved. Similar to the Australian Passports Act 2005, this Act provides that before an application for Australian citizenship is approved (descent, conferral or resumption) and before an application for evidence of citizenship is approved, the Minister must be satisfied of the person's identity. These circumstances will be outlined in the regulations. The personal identifiers will be required to be provided by the person in order for the Minister to be satisfied. The types of personal identifiers required from citizens and non- citizens will be the same. These are outlined in Section 50. This Division contains detailed provisions regulating the access, disclosure and destruction of identifying information. This Act protects the privacy of non-citizens and citizens by placing limits on the access and disclosure of identifying information provided under its provisions. For example, identifying information will not be disclosed to a foreign country. The proposed measures in this Act will contribute towards the whole-of-government approach, and international strategies, to combat identity fraud and misrepresentation by uniquely verifying identities of non-citizens applying for citizenship and ensuring those persons seeking evidence of their Australian citizenship are Australian citizens. Identity and document fraud facilitates the international movement of terrorists and other persons of concern. Enhanced border security through strengthened proof of identity requirements is therefore essential to ensure the integrity of Australia's citizenship procedures and to enhance national security. The drafting of the provisions, including the offence provisions, within this Division are consistent with provisions introduced into the Migration Act 1958 by the Migration Legislation Amendment (Identification and Authentication) Act 2004. Subdivision A--Obtaining personal identifiers Subdivision A is about obtaining personal identifiers.


7 1 Clause 40 Request for personal identifiers Request for personal identifiers Clause 40 specifies that a request may be made of personal identifiers. Subclause (1) provides that in order to enable the Minster to be satisfied of the identity of a person in relation to an application concerning Australian citizenship, a request may be made of a person to provide one or more personal identifiers. The request may be for one or more specified personal identifiers. The request must be in writing. The persons who may request the applicant to provide personal identifiers are identified as follows: · the Minister; · a person authorised under subsection (3); or · a person who is included in a class of persons authorised under subsection (4). Form of request Subclause (2) provides that such request must inform the person of the matters prescribed by the regulations. The information that may be prescribed in the regulations may include such matters as: · the purpose and reasons for provision of the identifier; · the way in which the identifier may be provided; · the ways in which the information that is collected can be used; · the circumstances in which the information obtained may be disclosed to third parties; and · the right to make a complaint to the Privacy Commissioner, or to make an application under the Freedom of Information Act 1982 and how he or she may do so. Authorisations Subclause (3) provides that the Minister may authorise a person, for the purposes of paragraph (1)(b), who may issue the request for a personal identifier. This authorisation must be in writing. It is intended that the Legislative Instruments regulations cover this authorisation.


7 2 Subclause (4) provides that the Minister may authorise a class of persons, for the purposes of paragraph (1)(c), who may issue the request for a personal identifier. This authorisation must be in writing. The proposed effect is to authorise an individual to request identifiers. It is intended that the Legislative Instruments regulations cover this authorisation. Subclauses (3) and (4) allow the Minister to authorise officers to request one or more types of personal identifiers under the Act. For example, one class of officers may be authorised to request personal identifiers in relation to measurements, photographs and signatures only, whereas another class of officers may be authorised to request personal identifiers in relation to fingerprints. Clause 41 Provision of personal identifiers Clause 41 addresses the issue of providing personal identifiers. Regulations Subclause (1) gives a regulation making power. It specifies that the regulations may prescribe the procedures and requirements that apply to the provision of a personal identifier by a person under this Division. Regulations prescribing situations in which persons may provide personal identifiers and the types of personal identifiers required will largely mirror the current situations in which proof of identity to determine status is required in the citizenship context. For example, photographs and signatures are required in relation to applications from non citizens for citizenship by conferral and applications from citizens for evidence of Australian citizenship. Applicants are asked to provide these personal identifiers to an officer of the Department by attaching their photo (verified by an acceptable third party) signing the application and sending it to the Department. This clause also provides a framework for changes to implement future proof of identity decisions eg. the use of iris scans.


7 3 Subdivision B--Obligations relating to identifying information This subdivision outlines the obligations in relation to treatment of identifying information and consequent offence and penalty provisions where a breach arises. Clause 42 Accessing identifying information Clause 42 deals with the responsibilities in relation to accessing identifying information and offences for non authorised access. Subclause (1) states that a person commits an offence if: · the person accesses identifying information; and · the person is not authorised to access the identifying information for the purpose for which they accessed it. A penalty of imprisonment for 2 years, or 120 penalty units, or both is prescribed. Subclause 42(1) creates an offence related to unauthorised access of identifying information. The term "identifying information" is defined in clause 3 of the Bill. New subclause 42(1A) provides that the offence outlined in 42(1) does not apply if the person believes on reasonable grounds that the access is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person. This exception to the offence mirrors the Information Privacy Principle 10.1(b) of the Privacy Act 1988, which allows for the use of personal information in these circumstances. Information Privacy Principle 11.1(c) also allows for disclosure of personal information in these circumstances. A note is added at the end of this subclause which specifies that the defendant bears an evidential burden in relation to the matter in subclause (1A), and referring the reader to subsection 13.3(3) of the Criminal Code. Subclause 42(2) of the Bill provides exceptions to the offence in subclause 42(1) relating to unauthorised access of identifying information. The term "identifying information" is defined in clause 3 of the Bill. Paragraph 42(2)(a) provides that section 42 does not apply if the access is through a disclosure that is a permitted disclosure within the meaning of section 43. Paragraph 42 (2)(b) provides that section 42 does not apply to a disclosure to which section 43 does not apply because of the operation of subsection 43(1A).


7 4 Subclause 43(1A) provides that where a permitted disclosure of identifying information is made to a person who is not an entrusted person, section 43 does not apply to any further disclosure of that identifying information by a person who is not an entrusted person. The term "entrusted person" is defined in clause 3 of the Bill. Generally speaking, a person who works for the Department of Immigration and Multicultural Affairs (the Department) is an entrusted person. The purpose of subclause 43(1A) is to allow other agencies, which have lawfully received identifying information from the Department, to disclose that information without committing an offence under section 43. However, their disclosure of that information may be governed by the Privacy Act 1988. The purpose of paragraph 42(2)(b) is to ensure that a person who accesses information, via a `secondary disclosure' to which subclause 43(1A) applies, does not commit an offence under section 42 for unauthorised accessing of identifying information. This is consistent with subclause 42(2), which provides that a person who access information, via a permitted disclosure, does not commit an offence under section 42. A note is included at the end of subclause 42(2). The note specifies that the defendant bears an evidential burden in relation to the matter in subsection (2), and refers the reader to subsection 13.3(3) of the Criminal Code. Authorisation Subclause (3) addresses the issue of authorisation. It empowers the Minister to authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation. The authorisation must be in writing. Subclause (4) gives further information in relation to the authorisation. It indicates that the Minister must specify the purpose or purposes for which access is authorised. One or more of the following purposes must be identified: · either or both of the purposes set out in paragraph 10(2)(c); · disclosing identifying information in accordance with this Division; · administering or managing the storage of identifying information; · making identifying information available to the person to whom it relates; · modifying identifying information to enable it to be matched with other identifying information; · modifying identifying information in order to correct errors or ensure compliance with appropriate standards;


7 5 · the purposes of this Act or the regulations or of the Migration Act 1958 or the regulations made under that Act; · complying with Australian laws. In particular in relation to paragraph 42(4)(g) it should be noted that the disclosure does not have to be for the purposes of making a decision under the specified legislation - it can be for any purpose under that legislation. Clause 43 Disclosing identifying information Clause 43 addresses the issue of disclosing identifying information. Subclause (1) provides that a person commits an offence if: · the person's conduct causes disclosure of identifying information; and · the disclosure is not a permitted disclosure. The penalty for committing this offence is imprisonment for 2 years, or 120 penalty units, or both. Subclause 43(1A) provides that where a permitted disclosure of identifying information is made to a person who is not an entrusted person, section 43 does not apply to any further disclosure of that identifying information by a person who is not an entrusted person. The term "entrusted person" is defined at clause 3 of the Bill. Generally speaking, a person who works for the Department of Immigration and Multicultural Affairs (the Department) is an entrusted person. The purpose of new subclause 43(1A) is to allow other agencies, which have lawfully received identifying information from the Department, to disclose that information without committing an offence under section 43. However, their disclosure of that information may be governed by the Privacy Act 1988. Note 1 at the end of new subclause 43(1A) states that the defendant bears an evidential burden in relation to the matter in subsection (1A). The reader is directed to subsection 13.3(3) of the Criminal Code. Note 2 at the end of the new subclause advises the reader that paragraph 3 of Information Privacy Principle 11 in section 14 of the Privacy Act may apply to further disclosures of identifying information by a person who is not an entrusted person. Subclause 43(1B) provides that section 43 does not apply if the person making the disclosure believes on reasonable grounds that the disclosure is necessary to prevent or


7 6 lessen a serious and imminent threat to the life or health of the person or of any other person. This exception to the offence mirrors the Information Privacy Principle 11.1(c) of the Privacy Act 1988 which allows for the use of personal information in these circumstances. It also mirrors new subclause 42(1A) relating to accessing identifying information. A note is also included at the end of new subclause 43(1B) stating that the defendant bears an evidential burden in relation to the matter in subsection (1B). The reader is directed to subsection 13.3(3) of the Criminal Code. Subclause (2) defines a ` permitted disclosure' as a disclosure that: · is for the purposes of this Act or the regulations or of the Migration Act 1958 or the regulations made under that Act; or · is for the purpose of administering or managing the storage of identifying information; or · is for the purpose of making the identifying information in question available to the person to whom it relates; or · is to an agency of the Commonwealth, a State or a Territory in order to verify that a person is an Australian citizen; or · takes 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; or · is reasonably necessary for the enforcement of the criminal law of the Commonwealth, a State or a Territory; or · is required by an Australian law; or · is for the purpose of a proceeding, before a court or tribunal, relating to the person to whom the identifying information in question relates; or · is for the purpose of an investigation by the Privacy Commissioner or the Ombudsman relating to action taken by the Department; or · takes place with the written consent of the person to whom the identifying information in question relates. In relation to dot point one above, disclosure of identifying information is permitted for the purposes of not just the Act and regulations made under the Act, but also the Migration Act 1958 and regulations made under that Act. This will allow the Department to disclose identifying information provided under the Act in the citizenship context, for a purpose related to the Migration Act or regulations made under that Act. It also permits the disclosure of identifying information to an agency of the Commonwealth, a State or Territory in order to verify that a person is an Australian citizen (dot point 4 above). For example, this will allow the Department of Immigration


7 7 and Multicultural Affairs to provide a photograph or signature provided by a person at the time they applied for citizenship or evidence of their citizenship, to another agency in order to verify, for that other agency, that the person to whom the identifying information relates is an Australian citizen. In addition, it permits disclosure of identifying information where this is reasonably necessary for the enforcement of the criminal law of the Commonwealth, a State or a Territory (dot point 6 above). This mirrors a similar provision which permits the disclosure of personal information under the Privacy Act 1988 (paragraph (1)(e) of Information Privacy Principle 11 contained in section 14). This will allow the Department of Immigration and Multicultural Affairs to disclose a photograph or signature provided by a citizenship applicant to the Australia Federal Police (AFP), or Commonwealth Department of Public Prosecutions, to assist in their investigation of a suspected offence. It complements paragraph 43(2)(f) of the Bill, which allows identifying information to be disclosed for the purpose of court or tribunal proceedings. Disclosure of identifying information is also permitted where the disclosure is required by law (dot point 7 above). This is consistent with paragraph 42(4)(h) of the Bill, which allows access to identifying information to be authorised for the purpose of "complying with Australian laws". Disclosure of identifying information for the purpose of investigations by the Privacy Commissioner or the Commonwealth Ombudsman, relating to a request for the provision of a personal identifier has also been included (dot point 9 above). This is because it may be necessary or desirable for the Department to disclose identifying information to either of these agencies to assist the agency with an investigation into action taken by the Department. Clause 44 Unauthorised modification or impairment of identifying information Clause 44 makes it an offence for a person to modify or impair identifying information where the person is not entitled to cause that modification or impairment. Unauthorised modification Subclause (1) creates an offence provision in relation to unauthorised modification. In these circumstances, a person commits an offence if: · the person causes any unauthorised modification of identifying information; and · the person intends to cause the modification; and · the person knows that the modification is unauthorised. The penalty under this provision is imprisonment for 2 years, or 120 penalty units, or both.


7 8 Unauthorised impairment Subclause (2) creates an offence provision in relation to unauthorised impairment. In these circumstances, a person commits an offence if: · the person causes any unauthorised impairment of: - the reliability of identifying information; or - the security of the storage of identifying information; or - the operation of a system by which identifying information is stored; and · the person intends to cause the impairment; and · the person knows that the impairment is unauthorised. The penalty under this provision is imprisonment for 2 years, or 120 penalty units, or both. Exception Subclause 44(2A) provides that clause 44 does not apply where identifying information is lawfully disclosed under clause 43 by an entrusted person, to any modification or impairment of the information by a person who is not an entrusted person. The term "entrusted person" is defined in clause 3 of the Bill. Generally speaking, a person who works for the Department of Immigration and Multicultural Affairs (the Department) is an entrusted person. The purpose of subclause 44(2A) is to allow other agencies, which have lawfully received identifying information from the Department, to modify or impair that information without committing an offence under section 43. A note is also included at the end of new subclause 44(2A) stating that the defendant bears an evidential burden in relation to the matter in subsection (2A). The reader is directed to subsection 13.3(3) of the Criminal Code. Interpretation Subclause (3) clarifies what is regarded as unauthorised modification or impairment of identifying information. This arises where the person is not entitled to cause that modification or impairment. It specifies that · modification of identifying information; or · impairment of the reliability of identifying information; or · impairment of the security of the storage of identifying information; or · impairment of the operation of a system by which identifying information is stored;


7 9 by a person is unauthorised, if the person is not entitled to cause that modification or impairment. Subclause (4) provides further interpretation on what is regarded as being `unauthorised' modification or impairment. Any such act caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it. The issue is essentially one of fact i.e.: whether an appropriate authorisation is held by the person to do the act, rather than their purpose for so doing. To make it clear, it is the form of the personal information and not the content of the information that may be necessary to modify for the purpose of being able to use the information (i.e. compare it with information already held by the department) or in the context of being able to store the information. Subclause (5) provides further interpretation on `causing' unauthorised modification or impairment. It makes clear that a person causes any such unauthorised modification or impairment if the person's conduct substantially contributes to it. Subclause (6) provides a further exception in relation to modification or impairment of identifying information. If a person causes any modification or impairment of a kind mentioned in subclause (3) and they do so under a warrant issued under an Australian law, they are entitled to cause that modification or impairment. Clause 45 Destroying identifying information Clause 45 addresses offences related to the failure to destroy identifying information. New subclause (1) provides that a person commits an offence if: · they are the responsible person for identifying information; and · they fail to destroy it as soon as practicable after they are no longer required to keep it. The penalty under this provision is imprisonment for 2 years, or 120 penalty units, or both. A note is provided at the end of this subclause referring the reader to section 24 of the Archives Act 1983 on the obligation to keep the identifying information. Subclause (2) provides that this Section does not apply if the identifying information is: · a personal identifier that is any of the following: - a measurement of a person's height and weight; - a photograph or other image of a person's face and shoulders; - a person's signature; or


8 0 · identifying information derived from or relating to such a personal identifier. A note is provided at the end of this subclause stating that a defendant bears an evidential burden in relation to the matters in subsection (2) and directs the reader to subsection 13.3(3) of the Criminal Code. Definitions Subclause (3) defines the responsible person for identifying information. This is the person who has day-to-day control of the data base (in cases where the identifying information is stored on a database). In other cases, it is the person who has day-to-day responsibility for the system under which the identifying information is stored. Subclause (4) gives clarification to the term `destroyed' for the purposes of this Section. In this case, identifying information is destroyed if: · in the case of identifying information that is a personal identifier--it is physically destroyed; and · in any other case--any means of identifying it with the person to whom it relates is destroyed. Subclause (5) defines `database' for the purposes of this clause. This is seen as a discrete body of information stored by electronic means, containing indexes of persons who have provided personal identifiers in accordance with a request under this Division; and their identifying information.


8 1 Part 3--Other matters Part 3 of the Act addresses other matters. It brings together remaining provisions that relate to the general administration of the Act, consistent with provisions in Part V of the old Act. These include application requirements, notification of decisions made under the Act, computerised decisions, the review of decisions, delegations and making of regulations. Clause 46 Application requirements Clause 46 outlines the requirements for an application under the Act. Subclause (1) provides that an application under a provision of this Act must: a) be on the relevant form approved by the Minister for the purposes of that provision; and b) contain the information required by the form; and c) be accompanied by any other information or documents prescribed by the regulations; and d) be accompanied by the fee (if any) prescribed by the regulations. Approval of forms Subclause (2) specifies that the Minister may approve one or more forms for the purposes of a provision of this Act relating to the making of an application. The approval by the Minister should be in writing, A note is added to the end of this subclause to serve as an example. This indicates that there are two ways to become an Australian citizen by descent under section 16. It also specifies that the Minister may approve one form for the purposes of that Section or may approve two different forms. Children aged under 16 Subclause 46(2A) relates to applications by children under 16 years of age. It provides that such applications must be set out either on a form that contains no other applications, or on a form that also contains an application by one responsible parent of the child. The purpose of this provision is to clarify how applications for children are to be made. This follows a recommendation by the Senate Committee in its report on the original Bill, that the Bill should clarify when a child may make an application in their own right and when an application may be considered as part of the application of a responsible parent of the child.


8 2 Subclause 46(2A) makes clear that children under 16 may apply either individually or as part of an application made by a responsible parent of the child. People over 16 must apply on their own form. Remission, refund or waiver of fees Subclause (3) states that the regulations may make provision for and in relation to the remission, refund or waiver of any fees of a kind referred to in paragraph (1)(d). Clause 47 Notification of decisions Clause 47 provides for the notification of decisions under this Act. Subclause (1) provides that if the Minister makes a decision in relation to a person, the Minister must give the person notice of the decision. Subclause (2) provides for notification in the case of an application by a child. In this case, the Minister satisfies the requirement of notification in subclause (1) if the Minister gives a parent of the child notice of the decision. Reasons for adverse decision Subclause (3) outlines the requirement to include reasons for that decision in the case where the decision is an adverse decision. Form of notice Subclause (4) specifies the form of notice. It requires the Minister to give the notice in the manner prescribed by the regulations. This may include electronic form. Procedural defect does affect validity of decision Subclause (5) provides for the case of procedural defect, making clear that a failure to comply with subclause (3) or (4) does not affect the validity of the decision. Clause 48 Computerised decision-making Clause 48 addresses the subject of computerised decision-making. This is the equivalent of sections 36A and 36B of the old Act. Computer-based decisions


8 3 Proposed subclause (1) provides for computer-based decisions. It specifies that the Minister may, arrange for the use of computer programs for any purposes for which the Minister may, or must carry out the following powers, under this Act or the regulations: · make a decision; or · exercise any power or comply with any obligation; or · do anything else related to making a decision or exercising a power or complying with an obligation. The computer based programs should be under the Minister's control. In addition, any such arrangements made must be made in writing. Subclause (2) provides that the Minister is taken to have: · made a decision; or · exercised a power or complied with an obligation; or · done something else related to the making of a decision or the exercise of a power or the compliance with an obligation; that was made, exercised, complied with, or done by the operation of a computer program under such an arrangement. Minister may substitute his or her own decision Subclause (3) provides that the Minister may substitute his or her own decision (the substituted decision) for a decision (the initial decision) made by the operation of a computer program under such an arrangement. This is permitted if: · a notice under section 49 relates to the computer program and to the initial decision; and · the notice states that the computer program was not functioning correctly; and · the substituted decision could have been made under the same provision of this Act or the regulations as the initial decision; and · the substituted decision is more favourable to the applicant. Subclause (4) provides that the Minister does not have a duty to consider whether to exercise the power under subclause (3) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances. The purpose of this provision is to put beyond doubt that this is a discretionary provision which may be exercised by the Minister. The Minister cannot be required to exercise such power, irrespective of who makes such request.


8 4 Subclause (5) provides for the operation of a substituted decision of the Minister (in accordance with subclause (3). It states that a substituted decision has effect despite any law of the Commonwealth, or any rule of common law, to the contrary effect. Clause 49 Evidence of whether computer program is functioning correctly Issue of notices Clause 49 outlines details on the issue of notices. This is the equivalent of Section 46B of the old Act. Subclause (1) provides that in citizenship proceedings, a notice signed by an authorised person stating whether or not a specified computer program was functioning correctly: - at a specified time or during a specified period; and - in relation to specified outcomes from the operation of that program under an arrangement made under subsection 48(1); is prima facie evidence of the matters stated in the notice. Ministerial authorisations Subclause (2) enables the Minister to authorise a person to issue notices under this Section. This must be done in writing. Subclause (3) provides that the Minister may authorise a class of persons to issue notices under this clause. This must be in writing. Definitions Subclause (4) provides further definitions for the purposes of this clause as follows: Authorised person means: · an APS employee in the Department; or · a person authorised under subsection (2) to issue notices under this Section; or · any person who is included in a class of persons authorised under subsection (3) to issue notices under this Section. citizenship proceedings means: · proceedings in a court (including criminal proceedings) that relate to this Act (including an offence against this Act); or · proceedings that relate to an application for review under Section 52.


8 5 functioning correctly means: a computer program is functioning correctly if: (a) outcomes from its operation comply with this Act and the regulations; and (b) those outcomes would be valid if they were made by the Minister otherwise than by the operation of the computer program. Clause 50 False statements or representations Clause 50 addresses offences related to the provision of false statements or representations. This is the equivalent of section 50 of the old Act. A technical amendment has been made to express the monetary penalties in penalty units rather than dollar amounts. Subclause (1) provides that a person commits an offence if: a) they make, or cause or permit to be made, a representation or statement; and b) they do so knowing that the representation or statement is false or misleading in a material particular; and c) they do so for a purpose of or in relation to this Act. The penalty under this subsection is imprisonment for 12 months. Subclause (2) provides that a person commits an offence if: a) they conceal, or cause or permit to be concealed, a material circumstance; and b) they do so for a purpose of or in relation to this Act. The penalty under this subsection is imprisonment for 12 months. This is the equivalent of section 50 of the old Act. A technical amendment has been made to express the monetary penalties in penalty units rather than dollar amounts. Clause 51 Geographical jurisdiction for offences Clause 51 states that Section 15.4 of the Criminal Code (extended geographical jurisdiction - category D) applies to all offences against this Act. Section 15.4 of the Criminal Code refers to Category D jurisdiction as follows: Extended geographical jurisdiction--category D


8 6 If a law of the Commonwealth provides that this Section applies to a particular offence, the offence applies: (a) whether or not the conduct constituting the alleged offence occurs in Australia; and (b) whether or not a result of the conduct constituting the alleged offence occurs in Australia. This is the widest form of geographic application. It is anticipated that offences within this Act may include situations where the result of the conduct may not occur in Australia. These would not be captured by the standard jurisdictional provisions. As it is express policy intention to cover these offences in this Act, Category D, extended jurisdiction provisions has been applied to ensure that all situations are covered. The offences in the Act include the following. · Subclause 38(4) makes it an offence for a person to fail to comply with a request by the Minister and surrender evidence of their Australian citizenship issued under clause 37. · Subclause 39 makes it an offence for a person to alter or cause or permit to be altered to a notice given to a person under clause 37. · Subclause 50 makes it an offence for a person to knowingly make, cause or permit to be made a representation or statement that is false or misleading in a particular mater for the purposes of or in relation to this Act. · Division 5 offences (clauses 42, 43, 44 and 45) all relate to the access, disclosure or other misuse of personal identifiers. The protection of personal information is of paramount importance and this information must be protected. Its misuse must be prevented. Clause 52 Review of decisions Clause 52 provides for the review of decisions. It is the equivalent of section 52 of the old Act. All decisions which were reviewable under the old Act are reviewable under the new Act (with the exception of section 47 (about amending certificates) in the old Act, however, there is no equivalent provision in this new Act). Subclause 52(1) sets out which decisions, made under the Bill, may be reviewed by the Administrative Appeals Tribunal (the AAT).


8 7 These are as follows: · a decision under section 17 to refuse to approve a person becoming an Australian citizen; · a decision under section 19D to refuse to approve a person becoming an Australian citizen; · a decision under section 24 to refuse to approve a person becoming an Australian citizen; · a decision under section 25 to cancel an approval given to a person under Section 24; · a decision under section 30 to refuse to approve a person becoming an Australian citizen again; · a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5) (about war); · a decision under section 34 or subsection 36(1) to revoke a person's Australian citizenship. Citizenship by conferral decision Subclause 52(2) provides that in relation to review of a decision made under section 24 (refusing to approve the person becoimg an Australian citizen) the applicant must be a permanent resident unless · they were under 18 at the time of the application; or · the Ministers reasons for the decision referred to the eligibility ground in subsections 21 (8) (about statelessness). This ensures that the requirement to be a permanent resident does not apply where the applicant was applying on the grounds of statelessness. It does so by imposing the requirement only where the Minister's reasons for the decision under clause 24 did not refer to the eligibility ground in subclause 21(8) (about statelessness). There are two situations in which the exemption from the permanent resident requirement will apply to people seeking citizenship on grounds of statelessness. First, the person may apply for citizenship on the grounds of statelessness, and be refused on the basis that the person does not meet the eligibility requirements in clause 21, in particular, the person does not meet subclause 21(8) (dealing with statelessness). The application must be refused under clause 24, and the Minister's reasons for decision will refer to subclause 21(8). The second case in which this may occur is where the Minister finds that the applicant meets subclause 21(8) (and so is eligible on the grounds of statelessness), but nevertheless refuses the application under clause 24 (for example, because the applicant


8 8 fails the national security requirement). Again, the reasons for refusal will refer to the eligibility ground met by the applicant, that is, subclause 21(8). In both these cases, there is to be no requirement that the person seeking AAT review is a permanent resident. The requirement to be a permanent resident does not apply to people aged under 18 at time of their citizenship application. Clause 53 Delegation Clause 53 provides for the making of delegations. It specifies that the Minister may, by writing, delegate to any person all or any of the Minister's functions or powers under this Act or the regulations. This provision is the equivalent of section 37 of the old Act. All delegations under the old Act will operate in the same way under the new Act. For example: under the old Act the Minister did not delegate the power to revoke a person of their Australian citizenship and will not do so under this Act. Clause 54 Regulations Clause 54 provides for the making of regulations under this Act. It is the equivalent of section 53 of the old Act. It provides that that Governor-General may make regulations prescribing matters: · required or permitted by this Act to be prescribed; or · necessary or convenient to be prescribed for carrying out or giving effect to this Act. Schedule 1--Pledge of commitment as a citizen of the Commonwealth of Australia Schedule 1 provides for a pledge of commitment as a citizen of the Commonwealth of Australia. There are two forms as follows: 1 Form of pledge no. 1 From this time forward, under God, I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey. 2 Form of pledge no. 2 From this time forward,


8 9 I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey. Notice under this schedule refers readers to clause 27 (about making of the pledges). This schedule is the equivalent of schedule 2 of the old Act