Senate

Revised Explanatory Memorandum

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

Schedule 3 - Application and transitional provisions

PART 1 - Provisions relating to the enactment of the Australian Citizenship Act 2005

Item 1 Definitions

72. This item provides terms which are defined for Part 1 of Schedule 3 to this Act. The expression ' commencement day' is defined as meaning the day on which sections 2A to 54 of the new Act commence.  The terms ' new Act' and ' old Act' are defined as meaning respectively the Australian Citizenship Act 2005 and the Australian Citizenship Act 1948 ..

Item 2 Rules applicable to Australian citizens under the old Act

73. Subitem 2(1)  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 new Act and refers readers to subsection 4(1) of the new Act...

74. Subitem 2(2) contains a table which provides that persons who were Australian citizens as described above under provisions of the old Act in column 2 of the table are now taken to be Australian citizens under the provisions of the new Act specified in column 3.

-

Item 1 of the table relates to the acquisition of citizenship by descent.

-

Item 2 of the table relates to the acquisition of citizenship by conferral. This provision ensures that persons to whom it applies continue to hold a specific citizenship status under the new Act in the event that they become subject to its provisions.

75. Subitem (3) clarifies that this item does not prevent a person from ceasing to be an Australian citizen under the new Act by way of renunciation by the person, revocation by the Minister or by service in the armed forces of an enemy country.

76. A note included after subitem (3) refers the reader to section 34 of the new Act noting that it allows the Minister to revoke a person's citizenship.

Item 3 Expanded meaning of some expressions in the new Act

77. This item provides expanded meaning of the expressions ' unlawful non-citizen' , ' permanent visa' , ' visa' and ' defence service' as used in the new Act. The purpose of this item is to ensure that these expressions apply in the manner and extent specified. Generally, the expanded meanings in this item incorporate other expressions previously defined in the Migration Act 1958 with similar meanings, or specify forms of defence service, which are relevant to the provisions of the new Act specified in each subitem.

78. Subitem 1 provides for the purposes of subparagraphs 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.

79. Subitem (2) provides that the definition of 'permanent visa' in section 3 of the new Act includes a 'valid permanent entry permit' as formerly defined in the Migration Act 1958 prior to 1 September 1994. Section 3 of the new Act defines the expression 'permanent visa' as having the same meaning as in the Migration Act 1958 .

80. Subitem (3) provides that the definition of 'visa' in section 3 of the new Act includes a 'valid entry permit' and a 'valid visa' as formerly defined in the Migration Act 1958 prior to 1 September 2004.

81. Subitem (4) expands the meaning of the expression 'defence service' to provide that:

•

service in the permanent forces of the Commonwealth includes service under the National Service Act 1951 as in force prior to 26 November 1964; and 

•

service in the Naval Reserve, Army Reserve or Air Force Reserve includes service in any predecessor of these organisations.

Item 4 Citizenship by birth under the Act

82. This item provides transitional arrangements which relate to the acquisition of citizenship by birth under section 12 of the new Act. This item provides that this section applies to persons born on or after the commencement day.

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

84. 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 if:

(i)

 the person 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 and ending on the day before the commencement day; and

(ii)

 that period is less than 10 years.

85. It provides a note at the end of this section which explains the effect of paragraph (b).  The effect of paragraph (b) of this item 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.

Item 5 Citizenship by descent and conferral under the new Act

86. This item provides that a reference to a person ceasing to be an Australian citizen in subsections 17(5) and 24(7) of the new Act includes a reference to a person ceasing to be an Australian citizen under the old Act.

87. Subsections 17(5) and 24(7) provide that if a person has ceased to be an Australian citizen at any time, the Minister must not approve the person becoming an Australian citizen by way of descent or conferral during the 12 months since the person ceased to be a citizen.

88. This item also contains a note which explains that 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 by way of descent or conferral under the new Act for at least 12 months from the date they ceased to be an Australian citizen.

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

89. Item 5A refers to Subdivision AA of Division 2 of Part 2 of the new Act , dealing with citizenship for people adopted in accordance with the Hague Convention on Intercountry Adoption. It provides for the application of new Subdivision AA to transitional cases.

90. Subitem 5A(1) provides that clause 19C of the new Act will apply to adoptions that occur before, on or after the commencement day of the new Act. This means that a person adopted by an Australian citizen in accordance with the Hague Convention on Intercountry Adoption before the commencement of the new Act, may apply for citizenship on the basis of that adoption after the commencement. 

91. Subitem 5A(2)  provides that 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). This is to ensure that the rule in subclause 19C(3) of the new Act 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.

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

92. 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 new Act.  

93. 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 new Act.

94. In particular, item 5B provides that subclauses 22(1) to (2), (4A) and (5A) of the new Act do not apply, and, instead, certain other provisions of clause 22 will apply to such a person.

95. The provisions to apply to such a person require that 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.

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.

96. Further, the provisions provide that 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.

These requirements mirror provisions within the Australian Citizenship Act 1948 .

97. 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 new Act will be subject to the residence requirements as specified in the new Act..

Item 6 Revocation of citizenship by conferral under the new Act

98. This item relates to the revocation of a person's Australian citizenship, held under the old Act, for making a false or misleading statement in his or her application, being convicted of a serious offence, or committing migration-related fraud.

99. Subitem (1) provides that this item applies to a person who is taken under subitem 2(2) of Part 1 of Schedule 3 to this Act to be an Australian citizen by way of conferral under the new Act.

100. Subitem (2) provides that subparagraph 34(2)(b)(i) of the new Act applies as if it also referred to the person's conviction of an offence against section 50 of the old Act in relation to a person's application for a certificate of Australian citizenship made under the old Act. Section 50 of the old Act made it an offence punishable by imprisonment for a person to make representations or statements that are false or misleading in a material particular or conceal a material circumstance. Subparagraph 34(2)(b)(i) provides that the Minister may revoke a person's Australian citizenship where acquired by application if, among other things, the person has been convicted of an offence against section 50 of the new Act or sections 137.1 or 137.2 of the Criminal Code in relation to the person's application to become an Australian citizen. Section 50 of the new Act relates to offences relating to false statements or representations. Sections 137.1 and 137.2 are offences relating to the provision of false or misleading information or documents.

101. Subitem (3) provides that subparagraph 34(2)(b)(ii) of the new Act applies as if it also referred to the person's conviction of an offence at any time after the person made the application for a certificate of Australian citizenship under the old Act. Subparagraph 34(2)(b)(i) provides that the Minister may revoke a person's Australian citizenship where the person has been convicted of a serious offence.  The expression, ' convicted of a serious offence' is defined in subsection 34(5) of the new Act as being convicted of an offence for which the person has been either sentenced to death or a serious prison sentence, and the offence was committed at anytime before the person became an Australian citizen. A serious prior sentence is defined in Section 10 of the new Act as a sentence of imprisonment for a period of at least 12 months.

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

Item 7 Applications under the old Act

103. This item provides transitional arrangements for citizenship applications which have not been decided immediately before the commencement day, as taken to have been made under corresponding application provisions in the new Act.

104. Subitem (1) provides that an 'old application' for citizenship on the basis of descent not decided immediately before the commencement day is taken to be a 'new application' to become an Australian citizen under section 16 of the new Act.

105. A note is provided at the end of this subitem to indicate that the new application will be assessed under Subdivision A of Division 2 of Part 2 of the new Act.  It also specifies that subitem (7) is also relevant to this assessment.

106. Subitem (2) provides that an 'old application' for the grant of Australian citizenship, or an application by a stateless person born in Australia, not decided immediately before the commencement day is taken to be a 'new application' to become an Australian citizen under section 21 of the new Act.

107. A note is provided at the end of this subitem to indicate the new application will be assessed under Subdivision B of Division 2 of Part 2 of the new Act.  It also specifies that subitems (7) and (8) are also relevant to this assessment.

108. Subitem (3) provides that if a person has made an 'old declaration' renouncing their Australian citizenship, and the Minister has not made a decision to either register or not register the old declaration immediately before the commencement day, the old application is taken to be a 'new application' to renounce the person's citizenship under section 33 of the new Act.

109. A note is provided at the end of this subitem to indicate the new application will be assessed under Division 3 of Part 2 of the new Act. It also specifies that subitem (7) is also relevant to this assessment.

110. Subitem (4) provides that if a person has given the Minister a statement or declaration, an 'old declaration', seeking to resume their Australian citizenship under either subsection 23AA(1) or 23AB(1) of the old Act before the commencement day, and the Minister has not registered the 'old declaration', then the old declaration is taken to be an 'new application' to resume Australian citizenship under section 29 of the new Act.

111. A note is provided at the end of this subitem to indicate the new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act.  It also specifies that subitem (7) is also relevant to this assessment.

112. Subitem (5) similarly applies to an application to resume Australian citizenship by a child (the 'old application') under subsection 23AA(2) or 23AB(3) before the commencement day.

113. Where the child is:

•

under the age of 18 years when the old application is made;

•

a declaration is made by a responsible parent of the child; and

•

the child ceased to be an Australian citizen by reason of the responsible parent ceasing to be an Australian citizen;

if the Minister has not decided the old application immediately before the commencement day, the old application is taken to be a 'new application' to resume Australian citizenship under section 29 of the new Act.

114. A note is provided at the end of this subitem to indicate the new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act.  It also specifies that subitem (7) is also relevant to this assessment.

115. Subitem (6) provides that where a person who lost their citizenship under section 23 of the old Act, which relates to children of persons who lose or are deprived of citizenship, makes an 'old declaration' under section 23B of the old Act before the commencement day, and the Minister has not registered or refused to register the old declaration immediately before the commencement day, the old declaration is taken to be a 'new application' to become an Australian citizen again under section 29 of the new Act.

116. A note is provided at the end of this subitem to indicate the new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act.  It also specifies that subitem (7) is also relevant to this assessment.

117. Subitem (7) provides for the assessment of new applications under the new Act.  It makes clear that 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 have been a reference to the time the old application or the old declaration was made under the old Act.

118. A note is provided at the end of this subitem to indicate the new application will be assessed under the provisions of the new Act.  It specifies the effect of this subitem - that some of those provisions will be applied at the time that the old application or the old declaration was made under the old Act.

119. Subitem (8) sets out the residence requirements for persons who apply for citizenship under section 13 or 23D of the old Act, but whose applications remain undecided on commencement of the new Act.

120. Subitem 7(2) provides that such applications are taken, on commencement to be applications made under section 21 of the new Act.

121. Subitem (8) makes it clear that in applying section 22 of the new Act (ie: the residence requirement) to such an  application , subsections 22(1) to (2) (4A) and (5A) of the new Act do not apply and instead other provisions of clause 22 are to apply.

122. The provisions to apply to such a person require that 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.

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.

123. Further, the provisions provide that 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.

124.  The provision allows the Minister to 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.

125. 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 .

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

126. This item provides transitional arrangements for circumstances where a person has been granted a certificate of Australian citizenship before the commencement of the new Act, but hasn't at that time made a pledge of commitment as a citizen of the Commonwealth of Australia under section 15 of the old Act.

127. This item also makes transitional arrangements for the cancellation of an approval in this circumstance and the deferral of the making of a pledge.

128. Subitem (1) provides that where such a person has been granted a certificate of Australian citizenship before the commencement of the new Act, the certificate is in force immediately before that day, and the person has not become an Australian citizen under section 15 of the old Act, then from commencement day, the certificate is taken to be an approval for the person to become an Australian citizen under section 24 of the new Act.

129. Subitem (2) makes transitional arrangements for section 25 of the new Act which provides circumstances where the Minister may cancel an approval for a person to become an Australian citizen.

•

Paragraph (2)(a) applies new paragraph 25(2)(a) of the new Act to a person who was granted a certificate of Australian citizenship under the old Act. Subsection 25(2) allows the Minister to cancel an approval if a person is not, at the time of cancellation, a permanent resident, or not likely to reside or continue to reside in Australia or maintain a close and continuing association with Australia, or not of good character.

•

Paragraph (2)(b) provides that a reference in paragraph 25(3)(a) of the new Act to the day when a person receives notice of an approval is taken to be a reference to the day on which the person was notified by the Minister of the grant of a certificate of Australian citizenship. Subsection 25(3) provides for the cancellation of approval where a person has failed to make a pledge of commitment within 12 months after the date of approval.

130. Subitem (3) provides transitional arrangements for decisions made by the Minister under subsection 14C(1) of the old Act to defer the conferral of Australian citizenship on a person where it appears that a visa held by the person may be cancelled under a provision of the Migration Act 1958 or the person has been charged (or may be charged) with an offence under a law of the Commonwealth, a State or Territory. Such decisions are taken under subitem (3) to be a determination under subsection 26(3) of the new Act.

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

131. Subitem (1) of this item provides that where subsection 23(3) of the old Act (which prevents the loss of Australian citizenship of a child who has a parent who has lost or been deprived of Australian citizenship) applies to a child immediately before the commencement of the new Act, then on and from commencement day, section 36 of the new Act applies to the child. Subsection 23(3) of the old Act operates to prevent the loss of citizenship where the child has another responsible parent who is an Australian citizen. Section 36(2) is the new Act equivalent to section 23(3) of the old Act.

132. Subitem (2) provides that in such a circumstance, the reference to 'cessation date' in subsection 36(2) of the new Act is taken to be a reference to the commencement day of the new Act, and it is further taken to be a responsible parent of the child who is an Australian citizen on this day.

Item 10 Review of decisions made under the old Act

133. This item provides that despite the repeal of the old Act, section 52A of the old Act (which provides for applications for review by the Administrative Appeals Tribunal of various decisions made under the old Act) continues to apply to a decision made under the old Act.

Item 11 Continuation of criminal proceedings under the old Act

134. This item provides that despite the repeal of the old Act, the old Act continues to apply, on and after the commencement day, to criminal proceedings that began before that day under the old Act.

Item 12 Section 8 of the Acts Interpretation Act 1901

135. This item provides that the effect of Part 1 of Schedule 3 to this Act does not limit the operation of section 8 of the Acts Interpretation Act 1901 (concerning the effect of repealed Acts) in relation to the repeal of the old Act.

Item 13 Transitional regulations

136. This item authorises the Governor-General to make regulations prescribing matters of a transitional nature relating to either the amendments or repeals made by this Act, or 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

Item 14 Definition

137. This item provides that the expression ' commencement day' is defined as meaning the day on which sections 2A to 54 of the new Act commence.

Item 15 Transitional - Administrative Appeals Tribunal Act 1975

138. This item provides transitional arrangements for where there are proceedings before the Administrative Appeals Act which relate to the old Act. In this circumstance, the amendment made by item 1 of Schedule 1 this Act is, for the purpose of the proceedings, taken not to have been made.

Item 16 Application - Age Discrimination Act 2004

139. This item provides that the amendment made by item 2 of Schedule 1 to this Act applies in relation to things done by a person on or after the commencement day.

Item 17 Application - Australian Passports Act 2005

140. This item provides that the amendment made by item 4 of Schedule 1 to this Act applies to Australian travel documents issued on or after the commencement day.

Item 18 Application - Commonwealth Electoral Act 1918

141. This item provides that the amendments made by items 15 and 16 of Schedule 1 to this Act apply in relation to nominations made on or after the commencement day.

Item 19 Transitional - Criminal Code Act 1995

142. This item provides transitional arrangements for certificates in force under subsections 72.8(2) and 115.7(1) of the Criminal Code . Subsection 72.8(2), following the amendment made by item 24 of this Act, provides that the Minister administering the new Act may issue a certificate stating that a person was an Australian citizen or a stateless person, whose habitual residence is or was in Australia, at a particular time. Subsection 115.7(1), following the amendment made by item 25 of this Act, provides that the Minister who administers the new Act, the Migration Act 1958 or the Australian Passports Act 2005 may issue a certificate stating that a person is or was an Australian citizen or a resident of Australia at a particular time.

143. This item provides that such certificates in force immediately before the commencement day have effect on and after that day as if it were a certificate issued under either subsection after the commencement day.

Item 20 Application - Electronic Transactions Act 1999

144. This item provides that the amendments made by item 27 of Schedule 1 to this Act applies in relation to documents required or permitted to be produced under section 11 of the Electronic Transactions Act 1999 on or after the commencement day.

Item 21 Application - Immigration (Education) Act 1971

145. This item provides that the amendment made by item 1 of Schedule 2 to this Act applies to:

•

a person to whom an obligation to provide tuition in an approved English course under section 4C of the Immigration (Education) Act 1971 on or after the commencement day; or

•

a person for whom an obligation to provide tuition in an approved English course began before the commencement day, but only where the obligation has not ceased before the commencement day.

Item 22 Transitional - Migration Act 1958

146. This item applies to an authorisation, in force immediately before the commencement day, to access identifying information under section 336D of the Migration Act, and the purpose of the authorisation relates to making decisions under the old Act or regulations made under the old Act. This item provides that such authorisations have effect on and after the commencement day as if it applied to the new Act or to regulations made under the new Act.