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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Australian Citizenship and Other
Legislation Amendment Bill 2014
No. , 2014
(Immigration and Border Protection)
A Bill for an Act to amend the Australian
Citizenship Act 2007 and other legislation, and for
related purposes
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Amendments
3
Australian Citizenship Act 2007
3
Migration Act 1958
26
Part 2--Application and transitional provisions
27
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
1
A Bill for an Act to amend the Australian
1
Citizenship Act 2007 and other legislation, and for
2
related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Australian Citizenship and Other
6
Legislation Amendment Act 2014.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
3
Schedule 1
--Amendments
1
Part 1
--Amendments
2
Australian Citizenship Act 2007
3
1 Section 2A
4
Omit:
5
If you did not automatically become an Australian citizen, the
6
Minister can revoke your citizenship in certain circumstances.
7
substitute:
8
If you did not automatically become an Australian citizen, the
9
Minister can revoke your citizenship in certain circumstances (for
10
example, where there has been fraud or misrepresentation).
11
2 Section 3
12
Before "In this Act", insert "(1)".
13
3 Section 3 (definition of artificial conception procedure)
14
Repeal the definition.
15
4 Section 3 (definition of de facto partner)
16
Omit "meaning given by the Acts Interpretation Act 1901", substitute
17
"same meaning as in the Migration Act 1958".
18
5 Section 3 (at the end of the definition of permanent visa)
19
Add:
20
Note:
See also subsection (2).
21
6 Section 3
22
Insert:
23
spouse has the same meaning as in the Migration Act 1958.
24
Schedule 1 Amendments
Part 1 Amendments
4
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
7 Section 3
1
Insert:
2
substantive visa has the same meaning as in the Migration Act
3
1958.
4
8 At the end of section 3
5
Add:
6
(2) The Minister may, by legislative instrument, prescribe a kind of
7
permanent visa for the purposes of subparagraph 21(5)(b)(ii) and
8
paragraph 52(2A)(b).
9
9 Subsection 6A(1)
10
Omit "section 3", substitute "subsection 3(1)".
11
10 Section 11A
12
Omit:
13
•
citizenship for abandoned children: see section 14; and
14
11 Subsection 12(2) (heading)
15
Repeal the heading, substitute:
16
Exception--enemy occupation
17
12 At the end of section 12
18
Add:
19
Exception--parent entitled to privileges or immunities
20
(3) Paragraph (1)(b) does not apply to a person born in Australia if, at
21
any time during the 10-year period referred to in that paragraph, a
22
parent of the person was entitled to any privileges or immunities
23
under any of the following Acts:
24
(a) the Diplomatic Privileges and Immunities Act 1967;
25
(b) the Consular Privileges and Immunities Act 1972;
26
(c) the International Organisations (Privileges and Immunities)
27
Act 1963;
28
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
5
(d) the Overseas Missions (Privileges and Immunities) Act 1995.
1
Exception--unlawful non-citizen
2
(4) Paragraph (1)(b) does not apply to a person born in Australia if, at
3
any time during the 10-year period referred to in that paragraph,
4
the person was present in Australia as an unlawful non-citizen.
5
Exception--no visa
6
(5) Paragraph (1)(b) does not apply to a person born in Australia if, at
7
any time during the 10-year period referred to in that paragraph,
8
the person was outside Australia and, at that time, the person did
9
not hold a visa permitting the person to travel to, enter and remain
10
in Australia.
11
(6) Subsection (5) does not apply in relation to a person if the person
12
was a New Zealand citizen when the person left Australia and the
13
person was a New Zealand citizen throughout the period of the
14
person's absence from Australia.
15
Exception--status of parent
16
(7) Paragraph (1)(b) does not apply to a person born in Australia if:
17
(a) a parent of the person did not hold a substantive visa at the
18
time of the person's birth; and
19
(b) that parent has entered Australia on one or more occasions
20
before the person's birth; and
21
(c) at any time during the period beginning on the day that parent
22
last entered Australia and ending on the day of the person's
23
birth, that parent was present in Australia as an unlawful
24
non-citizen.
25
Abandoned children
26
(8) A person found abandoned in Australia as a child:
27
(a) is taken to have been born in Australia; and
28
(b) is taken to be a person in relation to whom paragraph (1)(a)
29
applies.
30
(9) Subsection (8) applies unless and until it is proved:
31
(a) the person was outside Australia at any time before the
32
person was found abandoned in Australia as a child; or
33
Schedule 1 Amendments
Part 1 Amendments
6
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
(b) the person is not a person in relation to whom
1
paragraph (1)(a) applies.
2
13 Paragraph 13(a)
3
After "Territory", insert ", where the adoption process began when the
4
person was aged under 18".
5
14 Section 14
6
Repeal the section.
7
15 Section 15A
8
After:
9
•
national security: see subsections 17(4) to (4B); or
10
insert:
11
•
offences: see subsection 17(4C); or
12
16 Section 15A
13
Omit:
14
You do not become an Australian citizen, even if the Minister
15
approves you becoming an Australian citizen, unless a parent of
16
yours was an Australian citizen at a particular time: see
17
section 19A.
18
17 Paragraph 16(2)(c)
19
Omit ", and the person is aged 18 or over at the time the person made
20
the application".
21
18 After subsection 17(4B)
22
Insert:
23
Offences
24
(4C) The Minister must not approve the person becoming an Australian
25
citizen at a time:
26
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
7
(a) when proceedings for an offence against an Australian law
1
(including proceedings by way of appeal or review) are
2
pending in relation to the person; or
3
(b) when the person is confined to a prison in Australia; or
4
(c) during the period of 2 years after the end of any period
5
during which the person has been confined to a prison in
6
Australia because of the imposition on the person of a serious
7
prison sentence; or
8
(d) if the person is a serious repeat offender in relation to a
9
serious prison sentence--during the period of 10 years after
10
the end of any period during which the person has been
11
confined to a prison in Australia because of the imposition of
12
that sentence; or
13
(e) if the person has been released from serving the whole or a
14
part of a sentence of imprisonment on parole or licence--
15
during any period during which action can be taken under an
16
Australian law to require the person to serve the whole or a
17
part of that sentence; or
18
(f) if the person:
19
(i) has been released by a court from serving the whole or a
20
part of a sentence of imprisonment; and
21
(ii) has been so released subject to conditions relating to the
22
person's behaviour;
23
during any period during which action can be taken against
24
the person under an Australian law because of a breach of
25
any of those conditions; or
26
(g) if, in respect of proceedings for an offence against an
27
Australian law in relation to the person, a court releases the
28
person subject to conditions relating to the person's
29
behaviour--during any period during which action can be
30
taken against the person under an Australian law because of a
31
breach of any of those conditions; or
32
(h) during any period during which the person is confined in a
33
psychiatric institution by order of a court made in connection
34
with proceedings for an offence against an Australian law in
35
relation to the person; or
36
(i) when the person is subject to an order of a court for home
37
detention, where the order was made in connection with
38
proceedings for an offence against an Australian law in
39
relation to the person; or
40
Schedule 1 Amendments
Part 1 Amendments
8
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
(j) when the person is subject to an order of a court requiring the
1
person to participate in:
2
(i) a residential drug rehabilitation scheme; or
3
(ii) a residential program for the mentally ill; or
4
(iii) any other residential scheme or program;
5
where the order was made in connection with proceedings for
6
an offence against an Australian law in relation to the person.
7
19 Section 19A
8
Repeal the section.
9
20 Section 19B
10
After:
11
•
national security: see subsections 19D(5) to (7A); or
12
insert:
13
•
offences: see subsection 19D(7B); or
14
21 Paragraph 19C(2)(g)
15
Omit "if the applicant is aged 18 or over at the time the applicant made
16
the application--".
17
22 After subsection 19D(7A)
18
Insert:
19
Offences
20
(7B) The Minister must not approve the person becoming an Australian
21
citizen at a time:
22
(a) when proceedings for an offence against an Australian law
23
(including proceedings by way of appeal or review) are
24
pending in relation to the person; or
25
(b) when the person is confined to a prison in Australia; or
26
(c) during the period of 2 years after the end of any period
27
during which the person has been confined to a prison in
28
Australia because of the imposition on the person of a serious
29
prison sentence; or
30
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
9
(d) if the person is a serious repeat offender in relation to a
1
serious prison sentence--during the period of 10 years after
2
the end of any period during which the person has been
3
confined to a prison in Australia because of the imposition of
4
that sentence; or
5
(e) if the person has been released from serving the whole or a
6
part of a sentence of imprisonment on parole or licence--
7
during any period during which action can be taken under an
8
Australian law to require the person to serve the whole or a
9
part of that sentence; or
10
(f) if the person:
11
(i) has been released by a court from serving the whole or a
12
part of a sentence of imprisonment; and
13
(ii) has been so released subject to conditions relating to the
14
person's behaviour;
15
during any period during which action can be taken against
16
the person under an Australian law because of a breach of
17
any of those conditions; or
18
(g) if, in respect of proceedings for an offence against an
19
Australian law in relation to the person, a court releases the
20
person subject to conditions relating to the person's
21
behaviour--during any period during which action can be
22
taken against the person under an Australian law because of a
23
breach of any of those conditions; or
24
(h) during any period during which the person is confined in a
25
psychiatric institution by order of a court made in connection
26
with proceedings for an offence against an Australian law in
27
relation to the person; or
28
(i) when the person is subject to an order of a court for home
29
detention, where the order was made in connection with
30
proceedings for an offence against an Australian law in
31
relation to the person; or
32
(j) when the person is subject to an order of a court requiring the
33
person to participate in:
34
(i) a residential drug rehabilitation scheme; or
35
(ii) a residential program for the mentally ill; or
36
(iii) any other residential scheme or program;
37
where the order was made in connection with proceedings for
38
an offence against an Australian law in relation to the person.
39
Schedule 1 Amendments
Part 1 Amendments
10
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
23 Subsection 21(5)
1
Omit "satisfied that the person", substitute "satisfied that".
2
24 Paragraph 21(5)(a)
3
Before "is", insert "the person".
4
25 Paragraph 21(5)(b)
5
Repeal the paragraph, substitute:
6
(b) at the time the person made the application and at the time of
7
the Minister's decision on the application:
8
(i) the person is a permanent resident; or
9
(ii) the person holds a permanent visa of a kind prescribed
10
in an instrument under subsection 3(2), the person has
11
not entered Australia as the holder of that visa and a
12
parent of the person is an Australian citizen; and
13
(c) the person is of good character at the time of the Minister's
14
decision on the application.
15
26 Paragraph 21(6)(d)
16
Omit "if the person is aged 18 or over at the time the person made the
17
application--".
18
27 Paragraphs 22(1)(a) and (b)
19
Repeal the paragraphs, substitute:
20
(a) one of the following subparagraphs applies:
21
(i) on the first day (the start day) of the 4-year period
22
ending on the day before the day the person made the
23
application the person was present in Australia (except
24
as an unlawful non-citizen);
25
(ii) on the start day the person was outside Australia and the
26
person was the holder of a visa that permitted the person
27
to travel to, enter and remain in Australia, and the visa
28
was granted when the person was in Australia;
29
(iii) on the start day the person was outside Australia and the
30
person was the holder of a visa that permitted the person
31
to travel to, enter and remain in Australia, the visa was
32
granted when the person was outside Australia and the
33
person had previously entered Australia as the holder of
34
that visa; and
35
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
11
(b) the person was present in Australia throughout the period (the
1
relevant period) beginning on the day after the start day and
2
ending on the day before the day the person made the
3
application; and
4
(ba) the person was not present in Australia as an unlawful
5
non-citizen at any time during the relevant period; and
6
28 Paragraph 22(1)(c)
7
Omit "for", substitute "throughout".
8
29 Paragraph 22(1A)(a)
9
Omit "period of 4 years immediately before the day the person made the
10
application", substitute "relevant period".
11
30 Subsection 22(1A)
12
Omit "paragraph (1)(a)", substitute "paragraph (1)(b)".
13
31 Subsection 22(1C)
14
Omit "paragraph (1)(a) if, at any time during the 4 year period
15
mentioned in that paragraph", substitute "paragraphs (1)(a) and (b) if, at
16
any time during the 4-year period mentioned in subparagraph (1)(a)(i)".
17
32 Subsection 22(2)
18
Omit "and (b)", substitute ", (b) and (ba)".
19
33 After subsection 22(2)
20
Insert:
21
Ministerial discretion--legislative instrument
22
(3) For the purposes of paragraph (1)(ba), the Minister may treat a
23
period as one in which the person was not present in Australia as
24
an unlawful non-citizen if the Minister is satisfied that the
25
circumstances prescribed in an instrument under subsection (4)
26
exist in relation to the person.
27
(4) The Minister may, by legislative instrument, prescribe
28
circumstances for the purposes of subsection (3).
29
Schedule 1 Amendments
Part 1 Amendments
12
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
34 Subsection 22(4A)
1
Omit "paragraph (1)(b)", substitute "paragraph (1)(ba)".
2
35 Subsections 22(9) and (10)
3
Repeal the subsections, substitute:
4
Ministerial discretion--spouse, de facto partner or surviving
5
spouse or de facto partner of Australian citizen
6
(9) If the person is the spouse, de facto partner or surviving spouse
7
or de facto partner of an Australian citizen at the time the person
8
made the application:
9
(a) for the purposes of paragraph (1)(b), the Minister may treat a
10
period as one in which the person was present in Australia; or
11
(b) for the purposes of paragraph (1)(c), the Minister may treat a
12
period as one in which the person was present in Australia as
13
a permanent resident;
14
if:
15
(c) the person was a spouse or de facto partner of that Australian
16
citizen throughout that period; and
17
(d) the person was not present in Australia throughout that
18
period; and
19
(e) the person was a permanent resident throughout that period;
20
and
21
(f) the Minister is satisfied that the person had a close and
22
continuing association with Australia throughout that period;
23
and
24
(g) for the purposes of paragraph (1)(b)--the person was present
25
in Australia for a total of at least 365 days during the relevant
26
period (see paragraph (1)(b)).
27
Note:
For surviving spouse or de facto partner see subsection (12).
28
(10) Paragraph (9)(g) does not apply to the person if, throughout the
29
period referred to in paragraph (9)(c), the Australian citizen
30
referred to in paragraph (9)(c) was working outside Australia as a
31
Commonwealth officer or a State or Territory officer.
32
Note:
For Commonwealth officer and State or Territory officer see
33
subsection (12).
34
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
13
36 At the end of section 22
1
Add:
2
Definitions
3
(12) In this section:
4
Commonwealth officer means:
5
(a) a person who is in the employment of the Commonwealth,
6
other than a person who is engaged outside Australia to
7
perform duties outside Australia as an employee; or
8
(b) a person who holds or performs the duties of any office or
9
position established by or under a law of the Commonwealth;
10
or
11
(c) a member of the Australian Defence Force; or
12
(d) the Commissioner of the Australian Federal Police, a Deputy
13
Commissioner of the Australian Federal Police, an AFP
14
employee, a special member or a special protective service
15
officer (all within the meaning of the Australian Federal
16
Police Act 1979).
17
State or Territory officer means:
18
(a) a person who is in the employment of a State or Territory,
19
other than a person who is engaged outside Australia to
20
perform duties outside Australia as an employee; or
21
(b) a person who holds or performs the duties of any office or
22
position established by or under a law of a State or Territory;
23
or
24
(c) a member of the police force or police service of a State or
25
Territory.
26
surviving spouse or de facto partner of a person who has died
27
means a person who was the person's spouse or de facto partner
28
immediately before the person died and who has not later become
29
the spouse or de facto partner of another person.
30
37 Paragraph 22A(1)(f)
31
Omit "for", substitute "throughout".
32
38 After subsection 22A(5)
33
Insert:
34
Schedule 1 Amendments
Part 1 Amendments
14
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
Ministerial discretion--legislative instrument
1
(5A) For the purposes of paragraph (1)(g), the Minister may treat a
2
period as one in which the person was not present in Australia as
3
an unlawful non-citizen if the Minister is satisfied that the
4
circumstances prescribed in an instrument under
5
subsection 22C(2A) exist in relation to the person.
6
39 Paragraph 22B(1)(f)
7
Omit "for", substitute "throughout".
8
40 After subsection 22B(5)
9
Insert:
10
Ministerial discretion--legislative instrument
11
(5A) For the purposes of paragraph (1)(g), the Minister may treat a
12
period as one in which the person was not present in Australia as
13
an unlawful non-citizen if the Minister is satisfied that the
14
circumstances prescribed in an instrument under subsection 22C(4)
15
exist in relation to the person.
16
41 After subsection 22C(2)
17
Insert:
18
(2A) The Minister may, by legislative instrument, prescribe
19
circumstances for the purposes of subsection 22A(5A).
20
42 At the end of section 22C
21
Add:
22
(4) The Minister may, by legislative instrument, prescribe
23
circumstances for the purposes of subsection 22B(5A).
24
43 Subsection 24(1) (note)
25
Repeal the note, substitute:
26
Note:
For cancellation of an approval by the Minister, see section 25.
27
44 Paragraphs 24(6)(f) and (g)
28
Repeal the paragraphs, substitute:
29
(f) if the person:
30
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
15
(i) has been released by a court from serving the whole or a
1
part of a sentence of imprisonment; and
2
(ii) has been so released subject to conditions relating to the
3
person's behaviour;
4
during any period during which action can be taken against
5
the person under an Australian law because of a breach of
6
any of those conditions; or
7
(g) if, in respect of proceedings for an offence against an
8
Australian law in relation to the person, a court releases the
9
person subject to conditions relating to the person's
10
behaviour--during any period during which action can be
11
taken against the person under an Australian law because of a
12
breach of any of those conditions; or
13
45 At the end of subsection 24(6)
14
Add:
15
; or (i) when the person is subject to an order of a court for home
16
detention, where the order was made in connection with
17
proceedings for an offence against an Australian law in
18
relation to the person; or
19
(j) when the person is subject to an order of a court requiring the
20
person to participate in:
21
(i) a residential drug rehabilitation scheme; or
22
(ii) a residential program for the mentally ill; or
23
(iii) any other residential scheme or program;
24
where the order was made in connection with proceedings for
25
an offence against an Australian law in relation to the person.
26
46 Section 25 (heading)
27
Repeal the heading, substitute:
28
25 Cancellation of approval by Minister
29
47 Before subsection 25(1)
30
Insert:
31
Schedule 1 Amendments
Part 1 Amendments
16
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
Mandatory cancellation
1
(1A) The Minister must, by writing, cancel an approval given to a
2
person under section 24 if:
3
(a) the person has not become an Australian citizen under
4
section 28; and
5
(b) the approval was given on the basis of subsection 21(2), (4)
6
or (5) applying to the person; and
7
(c) assuming that the Minister were considering the person's
8
application to become an Australian citizen at the time of the
9
proposed cancellation, the Minister is satisfied that the person
10
would not be given an approval under section 24 because of
11
subsection 24(3), (4) or (4A).
12
Discretionary cancellation
13
48 Paragraph 25(1)(b)
14
Repeal the paragraph, substitute:
15
(b) subsection (2) or (3) applies.
16
49 Subsection 25(2)
17
Repeal the subsection, substitute:
18
(2) This subsection applies if:
19
(a) the approval was given on the basis of subsection 21(2), (4)
20
or (5) applying to the person; and
21
(b) assuming that the Minister were considering the person's
22
application to become an Australian citizen at the time of the
23
proposed cancellation, the Minister is satisfied that the person
24
would not be given an approval under section 24 (other than
25
because of subsection 24(3), (4), (4A) or (5)).
26
50 Subsection 25(3) (heading)
27
Repeal the heading.
28
51 Subsection 25(3)
29
Omit "The second situation", substitute "This subsection".
30
52 Subsection 26(3)
31
Omit "the Minister is satisfied that".
32
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
17
53 Paragraph 26(3)(a)
1
Before "a visa", insert "the Minister is satisfied that".
2
54 Paragraph 26(3)(b)
3
Before "the person", insert "the Minister is satisfied that".
4
55 At the end of subsection 26(3)
5
Add:
6
; or (c) the Minister is considering cancelling the approval given to
7
the person under section 24 and the Minister is considering
8
doing so:
9
(i) under subsection 25(1A); or
10
(ii) under subsection 25(1) because of the application of
11
subsection 25(2).
12
56 Subsection 26(4)
13
Omit "12 months", substitute "2 years".
14
57 Section 28A
15
Omit:
16
•
national security: see subsections 30(4) to (7).
17
substitute:
18
•
national security: see subsections 30(4) to (7); or
19
•
offences: see subsection 30(8); or
20
•
the timing of cessation of citizenship: see subsection 30(9).
21
58 Paragraph 29(2)(b)
22
Omit "if the person is aged 18 or over at the time the person made the
23
application--".
24
59 Subsection 29(2) (note 2)
25
Omit "section 34, 34A or 35", substitute "section 33A, 34, 34AA, 34A
26
or 35".
27
Schedule 1 Amendments
Part 1 Amendments
18
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
60 Paragraph 29(3)(b)
1
Omit "if the person is aged 18 or over at the time the person made the
2
application--".
3
61 At the end of section 30
4
Add:
5
Offences
6
(8) The Minister must not approve the person becoming an Australian
7
citizen again at a time:
8
(a) when proceedings for an offence against an Australian law
9
(including proceedings by way of appeal or review) are
10
pending in relation to the person; or
11
(b) when the person is confined to a prison in Australia; or
12
(c) during the period of 2 years after the end of any period
13
during which the person has been confined to a prison in
14
Australia because of the imposition on the person of a serious
15
prison sentence; or
16
(d) if the person is a serious repeat offender in relation to a
17
serious prison sentence--during the period of 10 years after
18
the end of any period during which the person has been
19
confined to a prison in Australia because of the imposition of
20
that sentence; or
21
(e) if the person has been released from serving the whole or a
22
part of a sentence of imprisonment on parole or licence--
23
during any period during which action can be taken under an
24
Australian law to require the person to serve the whole or a
25
part of that sentence; or
26
(f) if the person:
27
(i) has been released by a court from serving the whole or a
28
part of a sentence of imprisonment; and
29
(ii) has been so released subject to conditions relating to the
30
person's behaviour;
31
during any period during which action can be taken against
32
the person under an Australian law because of a breach of
33
any of those conditions; or
34
(g) if, in respect of proceedings for an offence against an
35
Australian law in relation to the person, a court releases the
36
person subject to conditions relating to the person's
37
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
19
behaviour--during any period during which action can be
1
taken against the person under an Australian law because of a
2
breach of any of those conditions; or
3
(h) during any period during which the person is confined in a
4
psychiatric institution by order of a court made in connection
5
with proceedings for an offence against an Australian law in
6
relation to the person; or
7
(i) when the person is subject to an order of a court for home
8
detention, where the order was made in connection with
9
proceedings for an offence against an Australian law in
10
relation to the person; or
11
(j) when the person is subject to an order of a court requiring the
12
person to participate in:
13
(i) a residential drug rehabilitation scheme; or
14
(ii) a residential program for the mentally ill; or
15
(iii) any other residential scheme or program;
16
where the order was made in connection with proceedings for
17
an offence against an Australian law in relation to the person.
18
Cessation of citizenship
19
(9) The Minister must not approve the person becoming an Australian
20
citizen again during the period of 12 months starting on the day on
21
which the person ceased, or last ceased, to be an Australian citizen.
22
62 Section 32A
23
Omit "5 ways", substitute "4 ways".
24
63 Section 32A
25
Omit:
26
•
if you did not automatically become an Australian citizen, the
27
Minister can revoke your citizenship in circumstances
28
involving offences or fraud: see section 34; or
29
•
if you did not automatically become an Australian citizen and
30
the Minister exercised the power under subsection 22A(1A) or
31
22B(1A), the Minister can revoke your citizenship in
32
Schedule 1 Amendments
Part 1 Amendments
20
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
circumstances involving a failure to comply with special
1
residence requirements: see section 34A; or
2
substitute:
3
•
if you did not automatically become an Australian citizen, the
4
Minister can revoke your citizenship in certain circumstances
5
(for example, where there has been fraud or
6
misrepresentation): see sections 33A to 34A; or
7
64 After section 33
8
Insert:
9
33A Revocation by Minister--citizenship by descent approval
10
should not have been given
11
(1) The Minister may, by writing, revoke a person's Australian
12
citizenship if:
13
(a) the person is an Australian citizen under Subdivision A of
14
Division 2 because of an approval under section 17; and
15
(b) the Minister is satisfied that the approval should not have
16
been given.
17
(2) However, the Minister must not decide under subsection (1) to
18
revoke a person's Australian citizenship if the Minister is satisfied
19
that the person would, if the Minister were to revoke the person's
20
Australian citizenship, become a person who is not a national or
21
citizen of any country.
22
Time citizenship ceases
23
(3) If the Minister revokes a person's Australian citizenship, the
24
person ceases to be an Australian citizen at the time of the
25
revocation.
26
Note:
A child of the person may also cease to be an Australian citizen: see
27
section 36.
28
65 Section 34 (heading)
29
Repeal the heading, substitute:
30
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
21
34 Revocation by Minister--convictions for fraud or
1
misrepresentation etc.
2
66 After section 34
3
Insert:
4
34AA Revocation by Minister--other cases of fraud or
5
misrepresentation
6
(1) The Minister may, by writing, revoke a person's Australian
7
citizenship if:
8
(a) the person is an Australian citizen under Subdivision A, AA
9
or B of Division 2 (including because of the operation of
10
section 32); and
11
(b) the Minister is satisfied that the person obtained the
12
Minister's approval to become an Australian citizen as a
13
result of fraud, or misrepresentation, connected with:
14
(i) the Minister approving the person becoming an
15
Australian citizen; or
16
(ii) the person's entry into Australia before the Minister
17
gave the approval; or
18
(iii) the grant to the person, before the Minister gave the
19
approval, of a visa or of a permission to enter and
20
remain in Australia; and
21
(c) the Minister is satisfied that it would be contrary to the public
22
interest for the person to remain an Australian citizen.
23
(2) The fraud or misrepresentation:
24
(a) may have been committed by any person; and
25
(b) need not have constituted an offence, or part of an offence,
26
by any person.
27
(3) However, the fraud or misrepresentation must have occurred
28
during the period of 10 years before the day of the revocation.
29
(4) Without limiting subsection (1), the concealment of material
30
circumstances constitutes a misrepresentation for the purposes of
31
that subsection.
32
Schedule 1 Amendments
Part 1 Amendments
22
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
Time citizenship ceases
1
(5) If the Minister revokes a person's Australian citizenship, the
2
person ceases to be an Australian citizen at the time of the
3
revocation.
4
Note:
A child of the person may also cease to be an Australian citizen: see
5
section 36.
6
67 Paragraph 36(1)(a)
7
Omit "section 33, 34, 34A or 35", substitute "section 33, 33A, 34,
8
34AA, 34A or 35".
9
68 Paragraph 38(1)(a)
10
Omit "section 34 or 34A", substitute "section 33A, 34, 34AA or 34A".
11
69 After subsection 47(3)
12
Insert:
13
Decisions made by the Minister personally
14
(3A) If the decision is made by the Minister personally, the notice may
15
include a statement that the Minister is satisfied that the decision
16
was made in the public interest.
17
70 Paragraph 52(1)(f)
18
Omit "section 34", substitute "section 33A, 34 or 34AA".
19
71 After subsection 52(2)
20
Insert:
21
(2A) If the Minister makes a decision under section 24 to refuse to
22
approve a person becoming an Australian citizen under
23
subsection 21(5), the person cannot apply for review of that
24
decision unless:
25
(a) the person is a permanent resident; or
26
(b) the person holds a permanent visa of a kind prescribed in an
27
instrument under subsection 3(2).
28
72 At the end of section 52
29
Add:
30
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
23
Decisions not reviewable
1
(4) Subsection (1) does not apply to a decision made by the Minister
2
personally, where the notice under section 47 included a statement
3
that the Minister is satisfied that the decision was made in the
4
public interest.
5
Note:
See also section 52B (about tabling a statement in Parliament).
6
73 After section 52
7
Insert:
8
52A Minister may in the public interest set aside certain decisions of
9
the Administrative Appeals Tribunal
10
(1) If:
11
(a) a delegate of the Minister makes one of the following
12
decisions:
13
(i) a decision under section 17, 19D or 24 to refuse to
14
approve a person becoming an Australian citizen;
15
(ii) a decision under section 25 to cancel an approval given
16
to a person under section 24;
17
(iii) a decision under section 30 to refuse to approve a
18
person becoming an Australian citizen again; and
19
(b) the delegate made the decision because the delegate was not
20
satisfied that the person was of good character at the time of
21
the decision or was not satisfied of the identity of the person;
22
and
23
(c) the person applied to the Administrative Appeals Tribunal for
24
review of the decision; and
25
(d) on that review the Tribunal made a decision of the kind
26
referred to in paragraph 43(1)(c) of the Administrative
27
Appeals Tribunal Act 1975 (about setting aside the decision
28
under review); and
29
(e) the person has not become an Australian citizen;
30
then, if the Minister is satisfied that it is in the public interest to do
31
so, the Minister may make a decision setting aside the Tribunal's
32
decision and make a decision of the kind referred to in
33
paragraph (a).
34
Note:
See also section 52B (about tabling a statement in Parliament).
35
Schedule 1 Amendments
Part 1 Amendments
24
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
(2) The power under subsection (1) may only be exercised by the
1
Minister personally.
2
52B Tabling statement in Parliament
3
Decisions not reviewable by Administrative Appeals Tribunal
4
(1) If the Minister makes a decision that is not reviewable by the
5
Administrative Appeals Tribunal because of subsection 52(4), the
6
Minister must cause to be tabled in each House of the Parliament,
7
within 15 sitting days of that House after the day the Minister
8
makes the decision, a statement that:
9
(a) sets out the Minister's decision; and
10
(b) sets out the reasons for the Minister's decision.
11
(2) However, a statement under subsection (1) is not to include the
12
name of the person affected by the decision.
13
Decisions setting aside Administrative Appeals Tribunal decisions
14
(3) If the Minister makes a decision under subsection 52A(1) to set
15
aside a decision of the Administrative Appeals Tribunal, the
16
Minister must cause to be tabled in each House of the Parliament,
17
within 15 sitting days of that House after the day the Minister
18
makes the decision, a statement that:
19
(a) sets out the Tribunal's decision; and
20
(b) states the Minister has set aside the Tribunal's decision; and
21
(c) sets out the decision made by the Minister in connection with
22
the decision to set aside the Tribunal's decision; and
23
(d) sets out the reasons for the Minister's decision to set aside the
24
Tribunal's decision.
25
(4) However, a statement under subsection (3) is not to include the
26
name of the person affected by the Minister's decisions.
27
74 After section 53
28
Insert:
29
Amendments Schedule 1
Amendments Part 1
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
25
53A Use and disclosure of personal information
1
Use
2
(1) The Minister, the Secretary or an APS employee in the Department
3
may use personal information obtained under the Migration Act
4
1958, or the regulations under that Act, for the purposes of this Act
5
or the regulations under this Act.
6
(2) A person to whom personal information is disclosed under
7
subsection 488C(3) of the Migration Act 1958 may use that
8
information for the purposes of this Act or the regulations under
9
this Act.
10
Disclosure
11
(3) The Minister, the Secretary or an APS employee in the Department
12
may disclose personal information obtained under this Act, or the
13
regulations under this Act, to the Minister, the Secretary or an
14
officer (within the meaning of the Migration Act 1958) for the
15
purposes of that Act or the regulations under that Act.
16
Definitions
17
(4) In this section:
18
personal information has the same meaning as in the Privacy Act
19
1988.
20
Secretary means the Secretary of the Department.
21
75 Section 54
22
Before "The", insert "(1)".
23
76 At the end of section 54
24
Add:
25
(2) Without limiting subsection (1), the regulations may confer on the
26
Minister the power to make legislative instruments.
27
Schedule 1 Amendments
Part 1 Amendments
26
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
Migration Act 1958
1
77 After section 488B
2
Insert:
3
488C Use and disclosure of citizenship information
4
Use
5
(1) The Minister, the Secretary or an officer may use personal
6
information obtained under the Australian Citizenship Act 2007, or
7
the regulations under that Act, for the purposes of this Act or the
8
regulations under this Act.
9
(2) A person to whom personal information is disclosed under
10
subsection 53A(3) of the Australian Citizenship Act 2007 may use
11
that information for the purposes of this Act or the regulations
12
under this Act.
13
Disclosure
14
(3) The Minister, the Secretary or an officer may disclose personal
15
information obtained under this Act, or the regulations under this
16
Act, to the Minister, the Secretary or an APS employee in the
17
Department for the purposes of the Australian Citizenship Act 2007
18
or the regulations under that Act.
19
(4) However, subsection (3) does not override section 488.
20
Note:
Section 488 prohibits the disclosure etc. of movement records except
21
in limited circumstances.
22
Amendments Schedule 1
Application and transitional provisions Part 2
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
27
Part 2
--Application and transitional provisions
1
78 Application and transitional provisions
2
(1)
In respect of the amendments made by items 4 and 6, section 22 of the
3
Australian Citizenship Act 2007 applies on and after the commencement
4
of those items in relation to applications made under section 21 of that
5
Act on or after that commencement.
6
(2)
Subsection 12(3) of the Australian Citizenship Act 2007, as inserted by
7
this Act, applies in relation to births that occur on or after the
8
commencement of this item.
9
(3)
Subsections 12(4), (5) and (6) of the Australian Citizenship Act 2007, as
10
inserted by this Act, apply in relation to a 10-year period referred to in
11
paragraph 12(1)(b) of that Act that ends on or after the commencement
12
of this item (whether the birth occurred before, on or after that
13
commencement).
14
(4)
To avoid doubt, for the purposes of subitem (3), in relation to a birth
15
that occurs before the commencement of this item, subsections 12(4),
16
(5) and (6) of the Australian Citizenship Act 2007, as inserted by this
17
Act, apply in relation to any part of the 10-year period (whether that
18
part occurs before, on or after that commencement).
19
(5)
Subsection 12(7) of the Australian Citizenship Act 2007, as inserted by
20
this Act, applies in relation to births, and entries to Australia, that occur
21
on or after the commencement of this item.
22
(6)
Subsections 12(8) and (9) of the Australian Citizenship Act 2007, as
23
inserted by this Act, apply in relation to persons found abandoned in
24
Australia as a child on or after the commencement of this item.
25
(7)
The amendment made by item 13 applies in relation to adoption
26
processes beginning on or after the commencement of that item.
27
(8)
The amendment made by item 14 applies in relation to persons found
28
abandoned in Australia as a child on or after the commencement of that
29
item.
30
(9)
The amendments made by items 17 and 18 apply in relation to
31
applications made under section 16 of the Australian Citizenship Act
32
2007 on or after the commencement of those items.
33
Schedule 1 Amendments
Part 2 Application and transitional provisions
28
Australian Citizenship and Other Legislation Amendment Bill 2014
No. , 2014
(10)
The amendments made by items 19 and 64 apply in relation to
1
approvals given under section 17 of the Australian Citizenship Act 2007
2
on or after the commencement of those items.
3
(11)
The amendments made by items 21 and 22 apply in relation to
4
applications made under section 19C of the Australian Citizenship Act
5
2007 on or after the commencement of those items.
6
(12)
The amendments made by items 23 to 32, 34 to 37, 39, 44 and 45 apply
7
in relation to applications made under section 21 of the Australian
8
Citizenship Act 2007 on or after the commencement of those items.
9
(13)
The amendments made by items 33, 38 and 40 apply in relation to:
10
(a) applications made under section 21 of the Australian
11
Citizenship Act 2007 on or after the commencement of those
12
items; and
13
(b) applications made under that section before that
14
commencement and not decided by the Minister before that
15
commencement.
16
(14)
The amendments made by items 46 to 56 apply in relation to approvals
17
given under section 24 of the Australian Citizenship Act 2007 before, on
18
or after the commencement of those items.
19
(15)
The amendments made by items 58, 60 and 61 apply in relation to
20
applications made under section 29 of the Australian Citizenship Act
21
2007 on or after the commencement of those items.
22
(16)
The amendment made by item 66 applies in relation to approvals to
23
become an Australian citizen that are given on or after the
24
commencement of that item, whether the fraud or misrepresentation
25
occurred before, on or after that commencement.
26
(17)
The amendments made by items 69, 71 and 72 apply in relation to
27
decisions made on or after the commencement of those items.
28
(18)
Section 52A of the Australian Citizenship Act 2007, as inserted by this
29
Act, applies in relation to decisions made by the Administrative
30
Appeals Tribunal on or after the commencement of this item (whether
31
the decisions of the delegate of the Minister were made before, on or
32
after that commencement).
33
Amendments Schedule 1
Application and transitional provisions Part 2
No. , 2014
Australian Citizenship and Other Legislation Amendment Bill 2014
29
(19)
Subsections 53A(1) and (3) of the Australian Citizenship Act 2007, as
1
inserted by this Act, apply in relation to personal information obtained
2
before, on or after the commencement of this item.
3
(20)
Regulations in force under section 54 of the Australian Citizenship Act
4
2007 immediately before the commencement of this item continue in
5
force on and after that commencement as if they were regulations in
6
force under subsection 54(1) of that Act.
7
(21)
Subsections 488C(1) and (3) of the Migration Act 1958, as inserted by
8
this Act, apply in relation to personal information obtained before, on or
9
after the commencement of this item.
10