Australian Citizenship Bill Released

webster By Mark Webster
Monday, 19 June 2017

Family with dog

Changes to the requirements for Australian citizenship were announced on 20 April 2017. The draft legislation to enact these changes has now been released

Whilst the legislation must still pass Parliament, we can see more clearly how the new rules are likely to be implemented.

This article explains how the new rules will work based on the draft legislation.

Timing of Changes

Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 has bene introduced to Parliament, but has not yet passed and may be subject to further amendments before it comes into effect.

The Bill indicates following changes will be effective for any applications for citizenship lodged on or after 20 April 2017:

  • New General Residence Requirement
  • Competent English Requirement
  • Pledge of Allegiance Requirements
This means that applications lodged from this date will need to meet the new requirements, even though they were lodged prior to the legislation being passed by Parliament.

The balance of changes listed below would come into effect once the legislation is passed.

General Residence Requirement

The new general residence requirement for citizenship by conferral has been set out in the Bill and is as follows:
  • You must in general have been present in Australia for a period of 4 years as a permanent resident (this is referred to as the "Residency Period")
  • You must not have been unlawful at any stage during the 4 years
  • If you depart Australia during the 4 years, the total period spent outside Australia must be less than 365 days, and you must maintain your permanent residence during this time

This is in line with expectations based on the announcement of 20 April and effectively means that you must hold your permanent visa for 4 years, rather than 12 months which was previously the case.

New Zealand Citizens and the Residency Requirement

New Zealand Citizens meeting certain criteria will not need to meet the new general residence requirement, but instead can apply under the previous arrangements where up to 3 years of time spent in Australia on a temporary visa can count towards the residence requirement.

The explanatory statement indicates that NZ citizens applying under the new NZ 189 stream will be able to apply under the old general residence rules.

English Requirement

The Bill indicates that you will need to demonstrate Competent English - this would require at least 6 in each band of IELTS or equivalent. Evidence of Competent English would need to be provided at lodgement for all applicants aged 16 years or over. Failure to provide this would result in the application being considered invalid. The Explanatory Statement indicates that test results up to 3 years old can be used.

The Bill mentions that exemptions may be set out in a legislative instrument - we do not yet have the draft instrument, but the Explanatory Statement mentions the following possibilities:

  • Passport holders of the UK, Ireland, Canada, USA or NZ
  • Specified English language studies at a recognised Australian education provider
  • Applicants with a permanent or enduring physical or mental incapacity
  • Applicants aged 60 or over
  • Applicants with hearing, speech or sight impairment

Pledge of Allegiance

The previous Pledge of Commitment will be renamed as the Pledge of Allegiance. To become a citizen, the Pledge of Allegiance is required for citizenship by conferral for all applicants aged 16 or over.

This will also apply to the following ways of acquiring citizenship which currently do not require a Pledge of Commitment:

  • Citizenship by Descent - children born overseas to Australian citizen parents
  • Adopted children (Hague Convention or bilateral agreement)
  • People resuming Australian Citizenship
  • Children born to a former Australian citizen
  • People obtaining citizenship due to being stateless or born in Papua during certain periods of time

Automatic Acquisition of Citizenship by Children Born in Australia on 10th Birthday

Currently, children born in Australia and who are usually resident in Australia acquire Australian citizenship by operation of law on their 10th birthday.

The Bill introduces significant limitations on this, and the child will be ineligible for citizenship in the following circumstances:

  • Children who are unlawful at any stage
  • Children who depart Australia and do not have a visa to return to Australia
  • If the child's parent becomes unlawful prior to the birth of the child
  • If the child's parent has diplomatic status in Australia

Strengthened Character Requirements

The Bill gives the Minister more power to do the following where there are character concerns:
  1. Refuse Citizenship applications
  2. Delay processing of citizenship applications by deferring the date for the Pledge of Allegiance - this delay could be up to 2 years
  3. Cancelling approval of citizenship prior to the Pledge of Allegiance being taken
  4. Cancelling approval after the Pledge of Allegiance

Children under 18 will now need to meet the character requirement. Children 16 years or over will need to undergo police checks. Where there are known issues, Immigration may look into character for applicants aged under 16 years as well.

A citizenship application cannot be approved where a person is:

  • Subject to pending proceedings for an offence
  • Serving a term in prison
  • On parole
  • Confined in a mental health facility by court order
  • Subject to home detention or residential program for mental health or drug rehabilitation

A 2-year bar eligibility bar for Australian citizenship applies after serving a serious prison term or 10 years for repeat offenders.

The Minister has the power to personally make a decision on character grounds which is non-reviewable, and the substitute a decision in favour of applicants at the AAT on character grounds.

2-Year Bar where Citizenship Refused

A 2-year bar can apply where a citizenship application is refused on grounds other than meeting the residence requirement. If your applications is refused for instance on character grounds, you will not be able to apply again for a period of 2 years.

Revocation of Australian Citizenship for Fraud or Misrepresentation

Where incorrect information is provided, this can result revocation of Australian citizenship. This can relate to:
  • The application for Australian citizenship
  • Entry to Australia - presumably this might include information on incoming passenger cards
  • Previous visa applications

The fraud or misrepresentation may have been done by a third party, and includes concealing relevant information. Any fraud or misrepresentation which has occurred up to 10 years prior to the revocation can be considered.

Conclusion

Whilst the Citizenship legislation still needs to pass Parliament to come into effect, the release of the Bill makes the Government's intentions much clearer.

We will continue to publish updates as the Bill progresses through Parliament - it is possible that we may see some changes made to the proposed legislation before it finally passes.

If you would like advice on your likely eligibility for Australian citizenship, please book a consultation with one of our advisors.

References

Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017

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