Australian Citizenship Bill 2005
By Mark Webster, Acacia Immigration Australia Pty Ltd, 31 May 2006
The Hon John Cobb, the then Minister for Citizenship and Multicultural Affairs introduced the Australian Citizenship Bill 2005 ('Bill') into Parliament on 9 November 2005. The Bill, intended to replace the Australian Citizenship Act 1948 ('Act'), makes significant changes to the acquisition and possible revocation of Australian citizenship.
The Bill has not yet been passed. If it is passed it is unlikely that the changes will take effect before the 1st of July 2006. Below is an outline of some of the proposed changes:
Residence Requirement for Conferral of Citizenship
One criterion for citizenship is that the applicant satisfies the residence requirement. The current requirement that the applicant for citizenship live in Australia as a permanent resident for at least 2 of the last 5 years will be increased to 3 of the last 5 years. In addition, the applicant will still be required to prove 12 months residence in Australia out of the 24 months prior to the lodgment of the application.The reasons given in the Minister's 2nd Reading Speech for the increase to 3 years residence are as follows:
"The increase in the residential qualifying period will allow more time for new arrivals to become familiar with the Australian way of life and the values to which they will need to commit as citizens. It will also strengthen the integrity of the citizenship process by giving more time for the identification of people who may represent a risk to Australian security."
The term "conferral" will replace the current use of "grant" of citizenship.
Exemptions for Residence Requirements
The Bill sets out a number of exemptions for the residence requirement which are to be applied at the Minister's discretion. Most of these are more restrictive versions of exemptions which already exist under the Act:- Spouses or defacto partners of Australian Citizens: under the Act, the Minister has a discretion to grant citizenship to a spouse of an Australian citizen, regardless of residency in Australia. Current policy is to use this discretion very sparingly. The Bill will require spouses of Australian citizens to meet the same residency requirements as other applicants, but introduces a more transparent exemption for such people. Time spent overseas after grant of permanent residence can be counted toward the residence requirement if the applicant was the spouse of an Australian citizen and maintained a close and continuing association with Australia during this time. The discretion applies to widows, spouses and defacto partners, but not to interdependent partners.
- Activities Beneficial to Australia: the Bill allows the Minister to count time spent overseas by a permanent resident engaging in activities of benefit to Australia toward the residence requirement for citizenship. In general, the Bill allows up to 12 months of residence overseas to be counted. If significant hardship or disadvantage would result, more than 12 months can be counted.. The "benefit to Australia" exemption exists under the current Act, but there is no requirement to show hardship to count more than 12 months.
- Temporary Residents: under the current Act, time spent in Australia as a temporary resident can be counted toward the residence requirement if not to count it would result in significant hardship or disadvantage. .The Bill retains this concession, but in addition allows a period of up to 12 months spent in Australia as a temporary resident to be counted towards the residence requirement if the person engaged in activities beneficial to Australia - without any requirement to show significant hardship or disadvantage. This is a potentially significant new concession, and might well apply to many temporary partner visa holders.
- Former citizens or persons born in Australia - only need to establish 1 of the last 2 years of residence in Australia
- Residence prior to the last 5 years
- Service in the Australian Defence Force
- Administrative error in calculation of residence
English Language Requirement
Under the proposed legislation, in general, an applicant who is under 60 years of age must have a basic knowledge of English. Currently this requirement applies to applicants aged under 50.Citizenship by Descent
Currently, a child of an Australian citizen born overseas must be registered as an Australian citizen prior to turning 25. The Bill proposes to abolish this age limit.Another significant change relates to children of parents who lost their Australian citizenship by operation of section 17 of the Act (acquiring citizenship of another country). Section 17 of the Act was repealed effective 4 April 2002, meaning that dual citizenship is possible. Under the Act, if the child was born after the parent lost their Australian citizenship due to operation of Section 17, the child could not be registered as an Australian citizen because the parent was not an Australian citizen at the date of birth, even if the parent later resumed their Australian citizenship. Under the Bill, children in these circumstances will be able to apply for conferral of Australian citizenship.
Risk to Security
Under the Bill, where ASIO has assessed the applicant as a risk to National Security (meaning either an adverse or qualified assessment), an application for citizenship cannot be approved by the Minister. This applies to both conferral, citizenship by descent and resumption of citizenship. Worrying aspects of this change are that the Minister has no discretion to grant where there is an unfavourable ASIO assessment and that the Minister has no obligation to notify the applicant of the adverse information as is the case under the Migration Act 1958.Personal Identifiers
The Bill includes new provisions on personal identifiers. An application for citizenship cannot be approved unless the Minister is satisfied of the identity of the applicant - this applies to all applications for citizenship and resumption of citizenship. However, it does not apply to automatic acquisition of citizenship (e.g. citizenship by birth in Australia).Personal identifiers include:
- Fingerprints
- Height & weight data
- Photographs
- Iris Scans
- Signatures
- Anything else specified by the regulations
"the new provisions provide a legislative framework for the collection and use of personal identifiers which may be used in the future, for example iris scans" .
The website also explains what can happen if the person refuses to provide such identifiers:
"If a person does not want to provide personal identifiers and as a consequence the Minister is not satisfied of the person's identity, the Minister cannot approve the application."
Revocation of Australian Citizenship
The Bill proposes to change the terminology from 'deprivation' of citizenship to 'revocation' of citizenship.Currently, a person can be deprived of Australian citizenship if false or misleading information was provided in the application by the applicant. This ground will be extended to third party fraud, such as where incorrect information is knowingly provided by a migration agent. This includes both the application for citizenship itself and the grant of any prior visa.
The Act allows for deprivation of citizenship if a serious crime is committed between lodgment and grant of citizenship. The new act will allow for revocation for any serious offence (i.e. sentenced to death or prison sentence of 12 months or more) committed after application for Australian citizenship but prior to conferral of citizenship. However, this revocation cannot be made if it would result in the person becoming stateless.
The current provision for the loss of citizenship for persons serving in the armed forces of an enemy nation will remain.
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