Supplementary Explanatory Memorandum
(Circulated by authority of the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs, The Honourable Andrew Robb AO MP)SUPPLEMENTARY AMENDMENTS TO THE Australian citizenship (transitionals and consequentials) BILL 2005
OUTLINE
The purpose of these amendments to the Australian Citizenship (Transitionals and Consequentials) Bill 2005 (the Bill) is give effect to a recommendation of the Senate Legal and Constitutional Committee (the Senate Committee) following its inquiry into the Bill and the Australian Citizenship Bill 2005 (the principal Bill), and to make a number of consequential and technical changes to the Bill.
In particular, the amendments will:
- provide that the new residence requirements in the principal Bill apply only to persons granted permanent residence on or after the date of commencement of the Bill (recommendation 6 of the Senate Committee's report);
- provide that new Subdivision AA of Division 2 of Part 2 of the Bill (to be inserted by amendments to the principal Bill), allowing for registration of people adopted by an Australian citizen in accordance with the Hague Convention, applies to people adopted before or after the commencement of the principal Bill; and
- remove the requirement that the Minister must re-register all citizens who, at the time of commencement of the Bill, are citizens by descent.
FINANCIAL IMPACT STATEMENT
The proposed amendments will have no financial impact.
NOTES ON AMENDMENTS
(Government)
Amendment (1) - Consequential Amendment
This amendment omits the words "sections 3" and substitutes the words "sections 2A" in clause 2, table item 2, of the Bill.
This change is consequential to an amendment to be made to the principal Bill, inserting a new clause 2A into that Bill.
Amendment (2) - Consequential Amendment
This amendment makes a minor technical amendment to Schedule 3, item 1 by omitting "3" and substituting "2A".
This change is consequential to an amendment to be made to the principal Bill, inserting a new clause 2A into that Bill.
Amendment (3) - Current Australian citizens remain Australian citizens
This amendment omits item 2 of Schedule 3 and substitutes new item 2 entitled, "Rules applicable to Australian citizens under the old Act".
The amendment removes the provision at subitem 2(1) of the Bill, as this provision is redundant following an amendment to be made to the principal Bill (amendment (16) to the principal Bill).
Subitem 2(1) of the Bill provides that the definition of Australian citizen in section 4 of the principal Bill includes a person who was an Australian citizen under the Australian Citizenship Act 1948 immediately before commencement of the principal Bill. Clause 4 of the principal Bill is to be amended to expressly provide that the term Australian citizen includes persons who were Australian citizens immediately before commencement.
New subitem 2(1) (inserted by this amendment) provides that item 2 applies to a person who was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day. It includes a note stating that the person becomes an Australian citizen under the principal Bill, and refers the reader to subsection 4(1) of the principal Bill.
New subitem 2(2) maintains the operation of subitem 2(2) of the Bill.
Subitem 2(3) of the Bill is removed. That subitem required the Minister to re-register, after commencement of the principal Bill, all persons who are Australian citizens by descent immediately before commencement. This did not reflect the policy intention, which is that citizens by descent under the Australian Citizenship Act 1948 do not need to be re-registered under the principal Bill. It is noted that such persons will become Australian citizens under the principal Bill on commencement (subclause 4(1) of the principal Bill as amended).
New subitem 2(3) maintains the operation of subitem 2(4) of the Bill.
Amendment (4) - Consequential Amendment
This is a consequential amendment to subitem 3(1) of Schedule 3 to the Bill, omitting the words "and paragraphs 22(6)(a) and (7)(b)", and substituting the words, "subsection 19C(3) and paragraphs 22(1)(b) and (6)(a)".
The amendment is made as a consequence of an amendment to the principal Bill, to insert new Subdivision AA of Division 2 of Part 2, dealing with citizenship for people adopted in accordance with the Hague Convention on Intercountry Adoption. It ensures that the expanded meaning of presence in Australia as an unlawful non citizen set out in subitem 3(1) applies also to people making applications under new clause 19C of the principal Bill (as amended).
Amendment (5) - Citizenship for persons adopted in accordance with the Hague Convention
This amendment inserts new item 5A entitled - "Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption".
This amendment is consequential to an amendment to the principal Bill, to insert new Subdivision AA of Division 2 of Part 2, dealing with citizenship for people adopted in accordance with the Hague Convention on Intercountry Adoption. New item 5A provides for the application of new Subdivision AA to transitional cases.
Subitem 5A(1) provides that new clause 19C of the principal Bill will apply to adoptions that occur before, on or after the commencement day of the principal Bill. This means that a person adopted by an Australian citizen in accordance with the Hague Convention on Intercountry Adoption before the commencement of the principal Bill, may apply for citizenship on the basis of that adoption after the commencement.
Subitem 5A(2) provides that paragraphs 19C(2)(e) and (f) of the principal Bill apply as if a reference to Subdivision A included a reference to section 10B, 10C or 11 of the old Act (about citizenship by descent). This is to ensure that the rule in subclause 19C(3) of the principal Bill applies to people seeking citizenship through adoption where the parent/s themselves became an Australian citizen by descent under the descent provisions contained in the Australian Citizenship Act 1948( i.e. under sections 10B,10C or 11). Subclause 19C(3) requires that the parent (who themselves became a citizen by descent or by adoption) has spent at least two years in Australia before the child of that person makes their application for citizenship on the basis of their adoption.
Amendment (6) - Residence requirement - permanent residents at commencement
This amendment inserts a new item 5B entitled - "Citizenship by conferral - persons who are permanent residents at commencement".
New item 5B provides for transitional arrangements for people who are permanent residents (worked out under the Australian Citizenship Act 1948) immediately before the commencement day of the principal Bill.
It is intended that such persons need to only meet the residence requirements within the Australian Citizenship Act 1948 provided the person applies for citizenship under subclause 21(1) of the principal Bill within the 3 years of the date of commencement of the principal Bill.
In particular, item 5B provides that subclauses 22(1) to (2), (4A) and (5A) of the principal Bill do not apply, and, instead, certain other provisions of clause 22 will apply to such a person.
The provisions to apply to such a person require that the person has been present in Australia as a permanent resident for:
- a total period of at least 1 year in the period of 2 years before the day the person made the application; and
- a total period of at least 2 years in the period of 5 years before that day.
However, the requirement in paragraph (b) is not to apply if the person was born in Australia; or was an Australian citizen at any time before the person made the application.
Further, the provisions provide that the Minister must not take into account any period during which the person has been:
- 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 in relation to the person.
These requirements mirror provisions within the Australian Citizenship Act 1948.
The intention is also to allow a period of 3 years in which to make an application under these criteria. This period is regarded as a reasonable time for current permanent residents to make an application for Australian citizenship. After this 3 year period expires, people who were permanent residents on commencement of the principal Bill will be subject to the residence requirements as specified in the principal Bill.
Amendment (7) - Residence requirement - new applications
This amendment omits subitem 7(8) and substitutes new subitem 7(8) in the Bill. The provision sets out the residence requirements for persons who apply for citizenship under section 13 or 23D of the Australian Citizenship Act 1948, but whose applications remain undecided on commencement of the principal Bill.
Subitem 7(2) provides that such applications are taken, on commencement, to be applications made under clause 21 of the principal Bill.
New subitem 7(8) provides that in applying clause 22 of the principal Bill to such an application, subclauses 22(1) to (2), (4A) and (5A) of the principal Bill do not apply, and instead certain other provisions of clause 22 are to apply.
The provisions to apply to such a person require that the person has been present in Australia as a permanent resident for:
- a total period of at least 1 year in the period of 2 years before the day the person made the application; and
- a total period of at least 2 years in the period of 5 years before that day.
However, the requirement in paragraph (b) is not to apply if the person was born in Australia; or was an Australian citizen at any time before the person made the application.
Further, the provisions provide that the Minister must not take into account any period during which the person has been:
- 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 in relation to the person.
The provision allows the Minister to treat a period as one in which the person was present in Australia as a permanent resident if:
- the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and
- the person was not present in Australia during that period but was a permanent resident during that period.
It is intended that people who have made an application, which is undecided, need only meet the residence requirements contained within the Australian Citizenship Act 1948.
Amendment (8) - Consequential Amendment
This amendment omits "3" and substitutes "2A" in the definition of "commencement day" in item 14 of Schedule 3 to the Bill. The amendment is consequential an amendment inserting new clause 2A into the principal Bill.