Australian Citizenship (Transitionals and Consequentials) Act 2007

(21 of 2007)

An Act to provide for transitional and consequential matters relating to the enactment of the Australian Citizenship Act 2007, and for other purposes

[Assented to 15 March 2007]

The Parliament of Australia enacts:

[Minister's second reading speech made in - House of Representatives on 9 November 2005, Senate on 30 November 2006]

1 Short title

This Act may be cited as theAustralian Citizenship (Transitionals and Consequentials) Act 2007.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.
2. Schedules 1 to 3	At the same time as sections 2A to 54 of theAustralian Citizenship Act 2007commence.

Note: This table relates only 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.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 Consequential amendments

Part 1 Amendments

Administrative Appeals Tribunal Act 1975

1 Paragraph 21AA(5)(c)

Omit "Australian Citizenship Act 1948", substitute "Australian Citizenship Act 2007".

Age Discrimination Act 2004

2 Paragraph 43(2)(a)

Repeal the paragraph, substitute:

(a) the Australian Citizenship Act 2007; or

Air Navigation Act 1920

3 Subsection 11A(4) (definition of Australian citizen )

Repeal the definition, substitute:

Australian citizen has the same meaning as in the Australian Citizenship Act 2007.

Australian Passports Act 2005

4 Paragraph 53(3)(b)

Repeal the paragraph, substitute:

(b) the name on a notice given to the person under section 37 of the Australian Citizenship Act 2007; or

Australian Security Intelligence Organisation Act 1979

5 Subsection 35(1) (paragraph (c) of the definition of prescribed administrative action )

Omit "Australian Citizenship Act 1948", substitute "Australian Citizenship Act 2007".

Circuit Layouts Act 1989

6 Section 5 (definition of Australian protected person )

Repeal the definition.

7 Section 5 (paragraph (a) of the definition of eligible person )

Omit "citizen, an Australian protected person", substitute "citizen".

Civil Aviation (Carriers' Liability) Act 1959

8 Section 5 (definition of Australian citizen )

Repeal the definition, substitute:

Australian citizen has the same meaning as in the Australian Citizenship Act 2007.

Commonwealth Electoral Act 1918

9 Paragraph 99A(1)(a)

Repeal the paragraph, substitute:

(a) makes an application to become an Australian citizen under section 21 of the Australian Citizenship Act 2007; and

10 Subparagraph 99A(4)(d)(i)

Omit "for a certificate of Australian citizenship", substitute "to become an Australian citizen".

11 Paragraph 99A(6)(b)

Repeal the paragraph, substitute:

(b) if the person becomes an Australian citizen as a result of the person's application to become an Australian citizen - inform the Electoral Commissioner, as soon as practicable, that the person has become an Australian citizen.

12 Subsection 99A(7)

Omit "is granted a certificate of Australian citizenship", substitute "becomes an Australian citizen".

13 Subsection 99A(7)

Omit "is granted the certificate of citizenship", substitute "becomes an Australian citizen".

14 Subsection 99A(8)

Omit "a certificate of Australian citizenship", substitute "approval to become an Australian citizen".

15 Paragraph 170(1)(c)

Omit ", having been granted a certificate of Australian citizenship".

16 Subparagraph 170(1)(c)(ii)

Repeal the subparagraph.

Commonwealth Serum Laboratories Act 1961

17 Subsection 19B(1) (definition of Australian citizen )

Repeal the definition, substitute:

Australian citizen has the same meaning as in the Australian Citizenship Act 2007.

Consular Privileges and Immunities Act 1972

18 Subsection 3(1) (definition of Australian citizen )

Repeal the definition.

Copyright Act 1968

19 Subsection 10(1) (definition of Australian protected person )

Repeal the definition.

20 Subsection 32(4) (definition of qualified person )

Omit ", an Australian protected person".

21 Section 84 (paragraph (a) of the definition of qualified person )

Omit ", an Australian protected person".

22 Subsection 248A(1) (definition of qualified person )

Omit ", an Australian protected person".

Crimes Act 1914

23 Paragraph 85ZZH(d)

Omit "Australian Citizenship Act 1948", substitute "Australian Citizenship Act 2007".

Criminal Code Act 1995

24 Subsection 72.8(2) of the Criminal Code

Omit "Australian Citizenship Act 1948", substitute "Australian Citizenship Act 2007".

25 Paragraph 115.7(1)(a) of the Criminal Code

Repeal the paragraph, substitute:

(a) the Australian Citizenship Act 2007;

Diplomatic Privileges and Immunities Act 1967

26 Subsection 4(1) (definition of Australian citizen )

Repeal the definition.

Electronic Transactions Act 1999

27 Clause 2 of Schedule 1

Repeal the clause, substitute:

2 Exempt citizenship documents

(1) Section 11 does not apply to a document required or permitted to be produced in connection with:

(a) ascertaining whether a person is, or remains, an Australian citizen; or

(b) the operation of a provision of a citizenship law that relates to:

(i) registration; or

(ii) an application for, or the giving of, an approval to become an Australian citizen; or

(iii) an application for, or the giving of, a notice about evidence of Australian citizenship; or

(iv) the cancellation or surrender of a notice about evidence of Australian citizenship; or

(v) the renunciation of Australian citizenship; or

(vi) the revocation of Australian citizenship; or

(i) the keeping of a register; or

(ii) the correction of an entry in a register; or

(iii) the cancellation of an entry in a register.

(2) In this clause:

citizenship law means:

(a) the Australian Citizenship Act 2007; or

(b) regulations under that Act.

Financial Transaction Reports Act 1988

28 Subsection 3(1) (definition of citizenship certificate )

After "declaration", insert ", notice".

29 Subsection 3(1) (before paragraph (a) of the definition of citizenship certificate )

Insert:

(aa) the Australian Citizenship Act 2007; or

30 Subsection 3(1) (paragraphs (b) and (c) of the definition of citizenship certificate )

Repeal the paragraphs.

31 Subsection 3(1) (definition of citizenship certificate )

Omit "under any", substitute "under either".

Higher Education Funding Act 1988

32 Section 3 (definition of permanent resident )

Repeal the definition, substitute:

permanent resident has the same meaning as in the Australian Citizenship Act 2007.

33 Section 3 (definition of permanent visa )

Repeal the definition, substitute:

permanent visa has the same meaning as in the Migration Act 1958.

34 Subsection 41(3)

Omit "a certificate of Australian citizenship under section 13 of the Australian Citizenship Act 1948 and who has yet to make the pledge referred to in section 15", substitute "an approval to become an Australian citizen under section 24 of the Australian Citizenship Act 2007 and who has yet to make the pledge referred to in section 26".

35 Paragraph 98B(1)(b)

36 Paragraph 98V(b)

37 Subparagraph 101(1)(d)(ii)

Legislative Instruments Act 2003

38 Subsection 44(2) (table item 1)

Repeal the item, substitute:

1	Determinations under subsection 5(2) of the Australian Citizenship Act 2007

Migration Act 1958

39 Paragraph 336D(2)(g)

Omit "Australian Citizenship Act 1948", substitute "Australian Citizenship Act 2007".

Qantas Sale Act 1992

40 Subsection 7(7) (definition of Australian citizen )

Repeal the definition, substitute:

Australian citizen has the same meaning as in the Australian Citizenship Act 2007.

Veterans' Entitlements Act 1986

41 Subsection 5G(1AA) (note 2)

Omit "Australian Citizenship Act 1948", substitute "Australian Citizenship Act 2007".

Part 2 Repeal

Australian Citizenship Act 1948

42 The whole of the Act

Repeal the Act.

Schedule 2 Other amendments

Immigration (Education) Act 1971

1 Paragraphs 4D(1)(c) and (d)

Repeal the paragraphs, substitute:

(c) if the person fails to commence an approved English course within the period of 12 months starting on the visa commencement date.

Schedule 3 Application and transitional provisions

Part 1 Provisions relating to the enactment of the Australian Citizenship Act 2007

1 Definitions

In this Part:

commencement day means the day on which sections 2A to 54 of the Australian Citizenship Act 2007 commence.

new Act means the Australian Citizenship Act 2007.

old Act means the Australian Citizenship Act 1948 as in force at any time before the commencement day.

2 Rules applicable to Australian citizens under the old Act

(1) This item applies to a person who was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day.

Note: The person becomes an Australian citizen under the new Act: see subsection 4(1) of the new Act.

Same kind of citizenship

(2) If the person, immediately before the commencement day, was an Australian citizen under the provision set out in column 2 of the following table, the person is taken, on and from that day, to be an Australian citizen under the provision set out in column 3 of the table:

Same kind of citizenship
Column 1 Item	Column 2 Provision under which person was a citizen	Column 3 Provision under which person is taken to be a citizen
1	Section 10B, 10C or 11 of the old Act	Subdivision A of Division 2 of Part 2 of the new Act
2	Division 2 of Part III of the old Act	Subdivision B of Division 2 of Part 2 of the new Act

Person may cease to be a citizen under new Act

(3) This item does not prevent the person from ceasing to be an Australian citizen under the new Act.

Note: For example, section 34 of the new Act allows the Minister to revoke a person's citizenship.

3 Expanded meaning of some expressions in the new Act

Unlawful non-citizen

(1) For the purposes of subparagraph 16(2)(b)(i), subsection 19C(3) and paragraphs 22(1)(b) and (6)(a) of the new Act, a person is taken to also have been present in Australia as an unlawful non-citizen at a particular time if the person:

(a) in relation to the period beginning on 19 December 1989 and ending on 31 August 1994 - was an illegal entrant at that time within the meaning of the Migration Act 1958 as in force at that time; and

(b) in relation to the period beginning on 2 April 1984 and ending on 18 December 1989 - was a prohibited non-citizen at that time within the meaning of that Act as in force at that time; and

(c) in relation to the period before 2 April 1984 - was a prohibited immigrant at that time within the meaning of that Act as in force at that time; and

(d) for any time - was in Australia at that time in contravention of a law of Norfolk Island or the Territory of Cocos (Keeling) Islands.

Permanent visa

(2) For the purposes of the new Act, the definition of permanent visa in section 3 of the new Act includes a valid permanent entry permit within the meaning of the Migration Act 1958 as in force immediately before 1 September 1994.

Visa

(3) For the purposes of the new Act, the definition of visa in section 3 of the new Act includes:

(a) a valid entry permit within the meaning of the Migration Act 1958 as in force immediately before 1 September 1994; and

(b) a valid visa within the meaning of that Act as in force immediately before 1 September 1994.

Defence service

(4) For the purposes of section 23 of the new Act:

(a) service in the permanent forces of the Commonwealth includes service because of a notice under section 26 of the National Service Act 1951 as in force at any time before 26 November 1964; and

(b) service in the Naval Reserve, the Army Reserve or Air Force Reserve includes service in any reserve force that is a predecessor (whether immediate or otherwise) of the Naval Reserve, the Army Reserve or Air Force Reserve.

4 Citizenship by birth under the new Act

(1) Paragraph 12(1)(a) of the new Act applies to a person born on or after the commencement day.

(2) Paragraph 12(1)(b) of the new Act applies to:

(a) a person born on or after the commencement day; and

(b) a person born before the commencement day who, immediately before that day, has not been ordinarily resident in Australia throughout the period of 10 years beginning on the day the person was born.

Note: The effect of paragraph (b) of subitem (2) is that the period for which the person has been ordinarily resident in Australia before the commencement day will be counted under the new Act.

5 Citizenship by descent and conferral under the new Act

Subsections 17(5) and 24(7) of the new Act apply as if a reference to a person ceasing to be an Australian citizen included a reference to a person ceasing to be an Australian citizen under the old Act.

Note: The effect of this item is that if a person ceases to be an Australian citizen under the old Act, the person cannot become an Australian citizen under Subdivision A or B of Division 2 of Part 2 of the new Act for at least 12 months.

5A Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption

(1) Section 19C of the new Act applies in relation to adoptions that occur before, on or after the commencement day.

(2) Paragraphs 19C(2)(e) and (f) of the new Act 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).

5B Citizenship by conferral - persons who are permanent residents at commencement

If:

(a) a person is a permanent resident (worked out under the old Act) immediately before the commencement day; and

(b) the person makes an application under subsection 21(1) of the new Act within the period of 3 years beginning on the commencement day;

then, for the purposes of that application, subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

(1) For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:

(a) a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b) a total period of at least 2 years in the period of 5 years before that day.

(2) Paragraph (1)(b) does not apply if the person:

(a) was born in Australia; or

(b) was an Australian citizen at any time before the person made the application.

(3) For the purposes of subsection (1), the Minister must not take into account any period during which the person has been:

(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.

6 Revocation of citizenship by conferral under the new Act

(1) This item applies to a person who, under subitem 2(2) of this Part, is taken, on and from the commencement day, to be an Australian citizen under Subdivision B of Division 2 of Part 2 of the new Act.

False or misleading statement in application

(2) Subparagraph 34(2)(b)(i) of the new Act applies as if it also referred to the person's conviction, at any time, of an offence against section 50 of the old Act in relation to the person's application for the certificate of Australian citizenship made under the old Act.

Conviction of serious offence

(3) Subparagraph 34(2)(b)(ii) of the new Act applies as if it also referred to the person's conviction, at any time after the person made the application for the certificate of Australian citizenship under the old Act, of an offence referred to in subparagraph 21(1)(a)(ii) of the old Act that the person committed at any time before the grant of the certificate.

Migration-related fraud

(4) Subparagraph 34(2)(b)(iii) of the new Act applies as if it also referred to the person obtaining the certificate of Australian citizenship under the old Act as a result of migration-related fraud within the meaning of subsections 21(1A) and (1B) of the old Act.

7 Applications under the old Act

Old descent applications

(1) If a person's application (the old application ) made under section 10B, 10C or 11 of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application ) to become an Australian citizen made under section 16 of the new Act.

Note: The new application will be assessed under Subdivision A of Division 2 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.

Old certificate by grant and stateless applications

(2) If a person's application (the old application ) made under section 13 or 23D of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application ) to become an Australian citizen made under section 21 of the new Act.

Note: The new application will be assessed under Subdivision B of Division 2 of Part 2 of the new Act. Subitems (7) and (8) are also relevant to this assessment.

Old renunciation applications

(3) If:

(a) a person had made a declaration (the old declaration ) renouncing the person's Australian citizenship under section 18 of the old Act before the commencement day; and

(b) the Minister had not registered the old declaration or refused to register the old declaration immediately before that day;

the old declaration is, on and from the commencement day, taken to be an application (a new application ) to renounce the person's Australian citizenship made under section 33 of the new Act.

Note: The new application will be assessed under Division 3 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.

Old resumption applications

(4) If:

(a) a person had given the Minister a statement and declaration (the old declaration ) under subsection 23AA(1) or 23AB(1) of the old Act before the commencement day; and

(b) the Minister had not registered the old declaration or refused to register the old declaration immediately before that day;

the old declaration is, on and from the commencement day, taken to be an application (a new application ) to become an Australian citizen again made under section 29 of the new Act.

Note: The new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.

(5) If:

(a) an application (the old application ) had been made under subsection 23AA(2) or 23AB(3) of the old Act before the commencement day in relation to a child; and

(b) the child satisfied paragraphs 23AA(2)(a), (b) and (c) or 23AB(3)(a), (b) and (c), as the case requires, at the time that application was made; and

the old application is, on and from the commencement day, taken to be an application (a new application ) to become an Australian citizen again made under section 29 of the new Act.

Note: The new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.

(6) If:

(a) a person had given the Minister a declaration (the old declaration ) under section 23B of the old Act before the commencement day; and

(b) the Minister had not registered the old declaration or refused to register the old declaration immediately before that day;

the old declaration is, on and from the commencement day, taken to be an application (a new application ) to become an Australian citizen again made under section 29 of the new Act.

Note: The new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.

Assessing new applications under the new Act

(7) In assessing a new application under the new Act, a reference in the new Act to the time the person made the application is taken to be a reference to the time the old application or the old declaration, as the case requires, was made under the old Act.

Note: The new application will be assessed under the provisions of the new Act. The effect of this subitem is that some of those provisions will be applied at the time the old application or the old declaration, as the case requires, was made under the old Act.

(8) In applying section 22 of the new Act to a new application covered by subitem (2), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

(1) For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:

(a) a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b) a total period of at least 2 years in the period of 5 years before that day.

(2) Paragraph (1)(b) does not apply if the person:

(a) was born in Australia; or

(b) was an Australian citizen at any time before the person made the application.

(3) For the purposes of subsection (1), the Minister must not take into account any period during which the person has been:

(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.

(4) The Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a) the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and

(b) the person was not present in Australia during that period but was a permanent resident during that period.

8 Person granted certificate of citizenship under the old Act but not an Australian citizen under the old Act

(1) If:

(a) a person has been granted a certificate of Australian citizenship under section 13 of the old Act before the commencement day; and

(b) the certificate is in force immediately before that day; and

the certificate is, on and from the commencement day, taken to be an approval given to the person under section 24 of the new Act.

Cancellation of approval under the new Act

(2) For the purposes of applying section 25 of the new Act to such an approval:

(a) if the person was granted the certificate of Australian citizenship under subsection 13(1) of the old Act - paragraph 25(2)(a) of the new Act is taken to apply to the person; and

(b) the reference in paragraph 25(3)(a) of the new Act to the day on which the person received notice of the approval is taken to be a reference to the day on which the person was notified of the Minister's decision under section 13 of the old Act to grant the certificate.

Deferral of pledge of commitment under old Act

(3) If a decision is in force under subsection 14C(1) of the old Act immediately before the commencement day, the decision is, on and from the commencement day, taken to be a determination made under subsection 26(3) of the new Act.

9 Children of persons who lost or were deprived of citizenship under the old Act

(1) If, immediately before the commencement day, paragraph 23(3)(c) of the old Act has prevented the application of subsection 23(1) or (2) of the old Act in relation to a child, then, on and from the commencement day, section 36 of the new Act is taken to apply in relation to the child.

(2) For this purpose, the reference to the cessation time in subsection 36(2) of the new Act is taken to be a reference to the commencement day and there is taken to be a responsible parent of the child who is an Australian citizen on that day.

10 Review of decisions made under the old Act

Despite the repeal of the old Act made by item 42 of Schedule 1, section 52A of the old Act continues to apply in relation to a decision made under that Act, as if that repeal had not been made.

11 Continuation of criminal proceedings under the old Act

Despite the repeal of the old Act made by item 42 of Schedule 1, the old Act continues to apply on and after the commencement day, in relation to criminal proceedings that began before that day under the old Act, as if that repeal had not been made.

12 Section 8 of the Acts Interpretation Act 1901

This Part does not limit the operation of section 8 of the Acts Interpretation Act 1901 in relation to the repeal of the old Act.

13 Transitional regulations

The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

(a) the amendments or repeals made by this Act; or

(b) the enactment of this Act or the new Act.

Part 2 Provisions relating to the amendments made by Schedules 1 and 2 to this Act

14 Definition

In this Part:

commencement day means the day on which sections 2A to 54 of the Australian Citizenship Act 2007 commence.

15 Transitional - Administrative Appeals Tribunal Act 1975

If, on or after the commencement day, there are proceedings of the Administrative Appeals Tribunal to which paragraph 21AA(5)(c) of the Administrative Appeals Tribunal Act 1975 applies and which relate to the old Act, the amendment made by item 1 of Schedule 1 is, for the purposes of those proceedings, taken not to have been made.

16 Application - Age Discrimination Act 2004

The amendment made by item 2 of Schedule 1 applies in relation to things done by a person on or after the commencement day.

17 Application - Australian Passports Act 2005

The amendment made by item 4 of Schedule 1 applies in relation to Australian travel documents issued on or after the commencement day.

18 Application - Commonwealth Electoral Act 1918

The amendments made by items 15 and 16 of Schedule 1 apply in relation to nominations made on or after the commencement day.

19 Transitional - Criminal Code Act 1995

(1) A certificate in force under subsection 72.8(2) of the Criminal Code immediately before the commencement day has effect on and after that day as if it were a certificate issued under that subsection on that day.

(2) A certificate in force under subsection 115.7(1) of the Criminal Code (in relation to paragraph 115.7(1)(a) of the Criminal Code) immediately before the commencement day has effect on and after that day as if it were a certificate issued under that subsection on that day.

20 Application - Electronic Transactions Act 1999

The amendment made by item 27 of Schedule 1 applies in relation to documents required or permitted to be produced on or after the commencement day.

21 Application - Immigration (Education) Act 1971

The amendment made by item 1 of Schedule 2 applies in relation to:

(a) a person in respect of which an obligation under section 4C of the Immigration (Education) Act 1971 begins on or after the commencement day; or

(b) a person in respect of which an obligation under that section began before the commencement day, but only if that obligation has not ceased before the commencement day.

22 Transitional - Migration Act 1958

(1) This item applies to an authorisation that:

(a) is in force under section 336D of the Migration Act 1958 immediately before the commencement day; and

(b) specifies the purpose of making decisions under the Australian Citizenship Act 1948 or the regulations made under that Act.

(2) The authorisation has effect on and after that day as if it were an authorisation in force under that section that specified the purpose of making decisions under the Australian Citizenship Act 2007 or the regulations made under that Act.