Saturday, 1st JulOutline Australian Citizenship Legislation Amendment Bill 2017

Australian Citizenship Legislation Amendment Bill 2017

(Strengthening the Requirements for Australian Citizenship and Other Measures)

OUTLINE - EXPLANATORY MEMORANDUM

The Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (the Bill) amends the Australian Citizenship Act 2007 (the Act) and the Migration Act 1958 (the Migration Act) to strengthen the requirements to become an Australian citizen and other key provisions.

To strengthen the requirements to become an Australian citizen, the Bill amends the Act to:

• Increase the general residence requirement to require citizenship by conferral applicants to have been a permanent resident for at least four years before they are eligible to apply for citizenship;
• Require most applicants to provide evidence of competent English language proficiency before they can make a valid application for citizenship;
• Require applicants to sign an Australian Values Statement in order to make a valid application for citizenship;
• Require applicants to demonstrate their integration into the Australian community, including by behaving in a manner consistent with the Australian values that applicants commit to when they sign the Australian Values Statement;
• Amend the Preamble to recognise that people who are conferred Australian citizenship undertake to accept the obligation to pledge their allegiance to Australia and its people, and to share Australian values;
• Allow for the Australian Citizenship Regulation 2016 (the Regulation) or an instrument made under the Act to determine the information or documents that must be provided with an application in order for it to be a valid application;
• Allow for the Minister to determine eligibility criteria for sitting the citizenship test that may relate to the fact that a person has previously failed the test, did not comply with one or more rules of conduct relating to the test, or was found to have cheated during the test;
• Rename the ‘pledge of commitment’ the ‘pledge of allegiance’ and amend the pledge to require a person to pledge their allegiance to Australia and its people;
• Extend the requirement to make the pledge of allegiance to all persons aged 16 and over intending to acquire citizenship by descent, persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral agreement, persons intending to acquire citizenship by resumption, and persons intending to acquire citizenship by conferral who have satisfied the criteria for a person born to a former Australian citizen, a person born in Papua or a person who has satisfied the criteria relating to statelessness; and
• Allow for the Regulation or an instrument made under the Act to introduce a two year bar on a person making an application for citizenship where the Minister has refused to approve the person becoming an Australian citizen on grounds other than failure to meet the residence requirement.

To strengthen other key provisions of the Act, the Bill amends the Act to:

• Insert a definition of “spouse” and amend the definition of “de facto partner” to mirror the definitions of those terms in the Migration Act;
• Clarify that for the purposes of citizenship by adoption (where a person is adopted under a law of an Australian State or Territory), the adoption process must have commenced before the person turned 18;
• Clarify that for the purposes of automatic acquisition of Australian citizenship, a person is not taken to be ordinarily resident in Australia throughout the period of 10 years beginning on the day the person was born if at any time during the 10-year period:

        1. The person’s parent had privileges or immunities under relevant legislation;

        2. The person was present in Australia as an unlawful non-citizen; and

        3. Unless the person was a New Zealand citizen, the person was outside Australia and, at that time, the person did not hold a visa permitting the                 person to travel to, enter and remain in Australia;

• Clarify that for the purposes of automatic acquisition of Australian citizenship, a person is not taken to be ordinarily resident in Australia if a parent of the person did not hold a substantive visa at the time of the person’s birth, and that parent entered Australia before the person’s birth, and at any time during the period beginning on the parent’s last entry into Australia and ending on the day of the person’s birth, the parent was present in Australia as an unlawful non-citizen;
• Clarify, for the purposes of automatic acquisition of Australian citizenship, the circumstances in which a person is found abandoned as a child in Australia;
• Allow an applicant for citizenship by conferral who is aged under 18, who holds a permanent visa of a kind prescribed in a legislative instrument and who is of good character to be eligible for citizenship without first entering Australia;
• Provide that an applicant who is aged under 18 and who made an application for citizenship by conferral that was not approved cannot apply for merits review of that decision unless they are a permanent resident, or hold a permanent visa of a kind prescribed in an instrument;
• Enable the Minister to make a legislative instrument which sets out the kind of permanent visa that can be held by a person who is aged under 18 in order to be eligible to be approved as an Australian citizen by conferral without having to have entered Australia on that visa, and in order to be eligible to seek merits review of a decision to refuse to approve them becoming an Australian citizen;
• amend key provisions concerning the residence requirements for Australian citizenship, to clarify when it commences;
• Allow for the Minister to waive the general residence requirement where, due to an administrative error by or on behalf of the Commonwealth, the applicant believed they were an Australian citizen, or where it is in the public interest to do so;
• Enable the Minister to make a legislative instrument which sets out the circumstances in which the Minister may treat a period as one in which a person was not present in Australia as an unlawful non-citizen for the purposes of meeting the residence requirements for citizenship;
• Clarify the scope of the Minister’s discretion for residence requirements for spouses and de facto partners of Australian citizens, and spouses or de facto partners of deceased Australian citizens;
• Require all citizenship applicants to be of good character in order to be eligible for Australian citizenship, including applicants under 18 years of age;
• Extend the bar on approval to all applicants for citizenship where there are related criminal offences;
• Extend the offence provisions in the Act to capture more modern sentencing practices, including circumstances where a person is subject to an order of a court for home detention, an order of a court requiring the person to participate in a residential scheme or program, or circumstances in which the person has not been sentenced to a term of imprisonment but is nevertheless under an obligation to a court;
• Provide for the mandatory cancellation of approval of Australian citizenship where the applicant is required to make the pledge of allegiance before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would be subject to prohibitions on approval related to identity, national security or criminal offences;
• Provide for the discretionary cancellation of approval of Australian citizenship where the applicant is required to make the pledge of allegiance before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements for being approved as an Australian citizen.  For conferral applicants required to demonstrate integration, this includes where the Minister is no longer satisfied that the applicant has displayed behaviour consistent with Australian values.  Where they have not yet made the pledge of allegiance to become a citizen, the Minister may cancel the approval to become a citizen;
• Provide for the discretionary cancellation of approval of Australian citizenship where the applicant is required to make the pledge of allegiance before becoming a citizen and the applicant fails to make the pledge within 12 months after being approved to become an Australian citizen and the reason for the failure is not one prescribed by the Regulation;
• Provide the Minister with the discretion to delay a person making the pledge of allegiance to become an Australian citizen if the Minister is considering cancelling the person’s approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because of identity, having been assessed as a risk to security or being subject to the bar on approval related to criminal offences;
• Provide the Minister with the discretion to delay a person making the pledge of allegiance to become an Australian citizen if the Minister is considering cancelling the person’s approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements for being approved as an Australian citizen;
• Increase the maximum period of deferral for making the pledge of allegiance to become an Australian citizen from 12 months to 2 years;
• Replace the current automatic provision in the Act which deems a citizen by descent never to have been a citizen, in spite of being approved by the Minister, if they did not have an Australian citizen parent at time of birth (section 19A), with a discretion for the Minister to revoke a person’s Australian citizenship if the person has been approved as an Australian citizen by descent and the Minister is satisfied that the approval should not have been given (except in circumstances where the revocation decision would result in the person becoming stateless);
• Provide the Minister with the discretion to revoke a person’s Australian citizenship where acquired by descent, conferral or under intercountry adoption arrangements if the Minister is satisfied that the person obtained Australian citizenship as a result of fraud or misrepresentation in certain circumstances regardless of whether the person was convicted of an offence in relation to the fraud or misrepresentation (and regardless of whether the fraud or misrepresentation was perpetrated by the Australian citizen themselves, or some other person);
• Provide that the Regulation may confer on the Minister the power to make legislative instruments;
• Clarify that the Minister, the Secretary or an APS employee in the Department of Immigration and Border Protection (the Department) may use personal information obtained under the Migration Act or the Migration Regulations 1994 (the Migration Regulations) for the purposes of the Act or the Regulation;
• Clarify that the Minister, the Secretary or an APS employee in the Department may disclose personal information obtained under the Act or the Regulation to the Minister, the Secretary or an officer (within the meaning of the Migration Act) for the purposes of the Migration Act or the Migration Regulations; and
• Make certain consequential amendments.

The Bill also amends the Migration Act to:

• Allow the Minister, the Secretary or an officer to use personal information obtained under the Act or the Regulation for the purposes of the Migration Act or the Migration Regulations; and
• Allow the Minister, the Secretary or an officer to disclose personal information obtained under the Migration Act or the Migration Regulations to the Minister, the Secretary or an APS employee in the Department for the purposes of the Act and the Citizenship Regulation, subject to a specified exception.