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

2016 - 2017

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

AUSTRALIAN CITIZENSHIP LEGISLATION AMENDMENT (STRENGTHENING THE REQUIREMENTS FOR AUSTRALIAN CITIZENSHIP AND OTHER MEASURES) BILL 2017

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Immigration

and Border Protection, the Hon. Peter Dutton MP)



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

OUTLINE

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:

§ the person’s parent had privileges or immunities under relevant legislation;

§ the person was present in Australia as an unlawful non-citizen; and

§ 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.



FINANCIAL IMPACT STATEMENT

The financial impact of these amendments is low.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A .



AUSTRALIAN CITIZENSHIP LEGISLATION AMENDMENT (STRENGTHENING THE REQUIREMENTS FOR AUSTRALIAN CITIZENSHIP AND OTHER MEASURES) BILL 2017

NOTES ON INDIVIDUAL CLAUSES

Clause 1 Short title

1. Clause 1 provides that the short title by which the Act may be cited is the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Act 2017 .

Clause 2 Commencement

2. Clause 2 of the Bill sets out the times at which the various provisions of the Act commence.

3. Subclause 2(1) of the Bill provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

4. Table item 1 provides that sections 1 to 3 of the Act and anything in the Act not elsewhere covered by the table will commence on the day on which this Act receives the Royal Assent.

5. Table item 2 provides that Schedule 1 will commence on 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.

6. The note in subclause 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments to this Act.

7. Subclause 2(2) of the Bill provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of the Act. There is currently no information in column 3 of the table.

Clause 3 Schedule s

8. Clause 3 of the Bill provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

9. The purpose of this clause is to clarify that Schedule 1 to the Bill sets out the amendments to the Act, and that the particular provisions mentioned in that Schedule are amended in accordance with the particular items in that Schedule.





Schedule 1-Amendments

Part 1-Amendments

Australian Citizenship Act 2007

Item 1 Paragraph (a) of the Preamble

10. This item removes the word “loyalty” and replaces it with “allegiance” in paragraph (a) of the Preamble. The Preamble describes the reciprocal rights and obligations that Australian citizenship bestows upon citizens, with those obligations listed in paragraphs (a) to (d). Paragraph (a) is amended to make it clear that part of the common bond of Australian citizenship is allegiance to Australia and its people.

Item 2 Paragraph (b) of the Preamble

11. This item inserts a reference to “values” in paragraph (b), making it clear that one of the obligations incumbent upon persons who are conferred Australian citizenship is to share the values and democratic beliefs of the Australian people.

Item 3 Section 2A

12. This item amends the simplified outline of the Act to highlight the pledge of allegiance. The Bill extends the requirement to make the pledge of allegiance to persons seeking to acquire citizenship by application aged 16 or over. Accordingly, the reference to making the pledge of allegiance in the simplified outline of the Act is now placed under the heading ‘Acquiring citizenship by application’ to explain the role of the pledge of allegiance in all citizenship application types.

13. The item also changes the reference to the ‘pledge of commitment’ to its new name, the ‘pledge of allegiance’. For this amendment, see item 76B.

Item 4 Section 2A

14. This item amends the simplified outline of the Act to remove the reference to making a pledge of allegiance in relation to the third way a person can apply to the Minister to become an Australian citizen. This amendment is consequential to the amendment in item 3.

Item 5 Section 2A

15. This item amends the simplified outline to add examples of circumstances that enliven the Minister’s power to revoke citizenship where the citizenship was acquired by application. The examples are circumstances of fraud or misrepresentation or where certain offences have been committed. This amendment provides further utility to the simplified outline by alerting the reader to revocation provisions contained elsewhere in the Act.

Item 6 Section 3

16. This item places the current section 3 into new subsection 3(1). This allows for the insertion of new subsection 3(2), described in item 14.

Item 7 Section 3 (definition of artificial conception procedure )

17. This item repeals the definition of “artificial conception procedure” in current section 3 of the Act. The term “artificial conception procedure” no longer appears in any operative provisions in the Act. Therefore, the definition is redundant.

Item 8 Section 3

18. This item inserts a definition of “competent English” into amended subsection 3(1) of the Act. A person has competent English in the circumstances determined under new paragraph 21(9)(a), which is inserted by item 53.

Item 9 Section 3 (definition of de facto partner )

19. This item omits “meaning given by the Acts Interpretation Act 1901 ” from the definition of “de facto partner” in section 3 of the Act, and substitutes it with “same meaning as in the Migration Act 1958 ”.

20. The purpose of this amendment is to ensure that “de facto partner” in the Act has the meaning given by the Migration Act, rather than the meaning given by the Acts Interpretation Act 1901 . This amendment ensures consistency with the definition of “spouse” inserted by item 13, which provides that “spouse” has the same meaning as in the Migration Act.

21. The definition in the Migration Act makes explicit reference, amongst other things, to the need for a de facto couple to be in a relationship “to the exclusion of all others”, for their relationship to be “genuine and continuing” and for them to be living together or not living separately and apart on a permanent basis.

22. The definition of “de facto partner” is relevant to the discretion in subsection 22(9) of the Act.

23. Section 22 sets out the general residence requirement for Australian citizenship by conferral. Subsection 22(9) of the Act sets out the circumstances in which the Minister may treat a period as one in which a person who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen as one in which the person was present in Australia as a permanent resident.

Item 10 Section 3

24. This item inserts a definition of “mental health care facility” to include a mental health care section of a hospital. This item is a consequence of item 12 which repeals the definition of “psychiatric institution”. The term “mental health care facility” replaces the term “psychiatric institution” throughout the Act to reflect contemporary language. See also items 16 and 17.

Item 11 Section 3 (at the end of the definition of permanent visa )

25. This item inserts a note to the definition of “permanent visa” which prompts the reader to refer to subsection 3(2). Subsection 3(2) is inserted by item 14.

Item 12 Section 3 (definition of psychiatric institution )

26. This item repeals the definition of “psychiatric institution”. To reflect contemporary language, the Bill, replaces the term “psychiatric institution” with “mental health care facility” throughout the Act. See items 10, 16 and 17.

Item 13 Section 3

27. This item inserts the new defined terms “residency period”, “spouse” and “substantive visa” in subsection 3(1) of the Act.

Residency period

28. This defined term provides that residency period has the meaning given by subsection 22(1A).

Spouse

29. The purpose of the insertion of this definition is to clarify that “spouse” has the same meaning as in the Migration Act. As with the definition of “de facto partner” described in item 9, the definition of “spouse” is relevant to the discretion in subsection 22(9) of the Act.

30. The new definition of “spouse” reflects the policy position that in order to be eligible for the exercise of the discretion in subsection 22(9) of the Act, the relationship between the applicant and their Australian citizen spouse must be, amongst other requirements of the definition of “spouse” in the Migration Act, to the exclusion of all others, genuine and continuing and for the persons to be living together or not living separately and apart on a permanent basis.

Substantive visa

31. The purpose of the insertion of this definition is to provide that “substantive visa” has the same meaning as in the Migration Act. The term has a precise meaning in the Migration Act and there is therefore practical utility in referring to the definition in that Act.

32. This amendment is consequential to the insertion into the Act of new paragraph 12(7)(a), by item 20.

Item 14 At the end of section 3

33. This item inserts new subsection 3(2) into the Act.

34. This amendment is consequential to items 51 and 123, which are about the circumstances in which a person under the age of 18 will be eligible to be approved as an Australian citizen, and the circumstances in which such a person will be eligible to seek review of the Minister’s decision not to approve them becoming an Australian citizen under section 24.

Item 15 Subsection 6A(1)

35. This item makes a technical amendment, consequential to items 6 and 14.

Item 16 Section 9 (heading)

36. This item amends the heading of section 9 to refer to a “mental health care facility” rather than a “psychiatric institution”. This amendment is intended to reflect more contemporary language relating to mental health matters. See also items 10, 12, 16 and 17.

Item 17 Subsection 9(3)

37. This item amends current subsection 9(3) to refer to a “mental health care facility” rather than a “psychiatric institution”. This amendment is intended to reflect more contemporary language relating to mental health matters. See also items 10, 12, 16 and 17.

Item 18 Section 11A

38. This item omits the reference to citizenship for abandoned children from the simplified outline to Division 1 of Part 2 of the Act. This amendment is consequential to item 22, which repeals section 14, and to item 20, which makes amendments in relation to citizenship for abandoned children.

Item 19 Subsection 12(2) (heading)

39. This item repeals the current heading to subsection 12(2) of the Act, and substitutes a new heading.

40. The new heading clarifies that a person will not become an Australian citizen under subsection 12(1) of the Act if subsection 12(2) applies to them.

Item 20 At the end of section 12

41. This item adds new subsections (3) to (9) at the end of section 12 of the Act.

Exception-parent entitled to privileges or immunities

42. The purpose of new subsection 12(3) is to clarify that a child born in Australia to a parent who had diplomatic privileges and immunities under the Diplomatic Privileges and Immunities Act 1967 , the Consular Privileges and Immunities Act 1972 , the International Organisations (Privileges and Immunities) Act 1963 or the Overseas Missions (Privileges and Immunities) Act 1995 at any time during the 10 year period referred to in paragraph 12(1)(b) does not acquire Australian citizenship on their tenth birthday (assuming a parent of the person is not an Australian citizen or a permanent resident within the meaning of paragraph 12(1)(a)).

43. This amendment reflects the policy position that a child of a diplomat is not considered to be “ordinarily resident” in Australia for the purposes of paragraph 12(1)(b) of the Act, but rather, is considered to be in Australia for a special or temporary purpose only.

44. Further, new subsection 12(3) promotes consistency and transparency in decision making by codifying in legislation policy factors that are currently taken into account by departmental decision makers when making a finding of fact as to whether a person has been ordinarily resident in Australia throughout the first 10 years of their life.

45. To avoid doubt, this provision will not affect the position of children born in Australia where one parent is an Australian citizen or permanent resident and the other parent is a foreign diplomat. Any child born in Australia to an Australian citizen or permanent resident parent automatically acquires Australian citizenship under paragraph 12(1)(a).

Exception-unlawful non-citizen

46. The purpose of new subsection 12(4) is to provide that a child born in Australia does not acquire Australian citizenship on their tenth birthday if at any time during the 10-year period referred to in paragraph 12(1)(b) the person was present in Australia as an unlawful non-citizen.

Exception-no visa

47. The purpose of new subsection 12(5) is to provide that a child born in Australia does not acquire Australian citizenship on their tenth birthday if at any time during the 10-year period referred to in paragraph 12(1)(b) 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.

48. New subsection 12(6) provides that new subsection 12(5) does not apply in relation to a person if the person was a New Zealand citizen when the person left Australia and the person was a New Zealand citizen throughout the period of the person’s absence from Australia. This reflects the treatment given to New Zealand citizens under the Trans - Tasman Travel Arrangement, which includes access to a special category visa, the subclass 444 visa. This visa is granted on arrival in Australia and ceases on departure from Australia. There is no facility to retain a subclass 444 visa for the duration of any absence from Australia.

Exception-status of parent

49. The purpose of new subsection 12(7) is to provide that a child born in Australia does not acquire Australian citizenship on their tenth birthday if a parent of the child did not hold a substantive visa at the time of the child’s birth, the parent entered Australia on one or more occasions before the person’s birth and, at any time during the period beginning on the day the parent last entered Australia and ending on the day of the person’s birth, that parent was present in Australia as an unlawful non-citizen.

50. Collectively, the amendments made by this item seek to encourage the use of lawful pathways to migration and citizenship by making citizenship under the ‘10 year rule’ available only to those who had a right to lawfully enter, re-enter and reside in Australia throughout the 10 years. People who do not meet the proposed requirements will no longer have an incentive to delay their departure from Australia until a child born to them in Australia has turned 10 years of age, in the expectation that the child will obtain citizenship and provide an anchor for family migration or justification for a ministerial intervention request under the Migration Act.

51. The proposed amendments are reasonable and proportionate within the context of Australia’s border security, visa and citizenship framework, which:

· requires that non-citizens hold a visa to enter and remain in Australia;

· provides citizenship by birth in Australia to children of Australian citizens and permanent residents; and

· with the exception of stateless applicants, requires that an applicant for citizenship by conferral not be an unlawful non-citizen.

Abandoned children

52. The purpose of new subsections 12(8) and 12(9) is to clarify the status of a child found abandoned in Australia.

53. Citizenship for abandoned children is currently provided for in section 14 of the Act, which provides that a person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved.

54. Since the introduction of the Act in 2007, section 14 has not accurately reflected the historical policy intention behind the introduction of the provision on abandoned children. Current section 14 is the successor to a provision introduced into the Australian Citizenship Act 1948 (the 1948 Act) to meet Australia’s obligations under Article 2 of the Convention on the Reduction of Statelessness (CRS). Articles 2 of the CRS provides that a foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State .

55. Article 2 of the CRS generally requires that a child found abandoned be dealt with as a citizen by birth unless and until it is determined they are not a citizen by birth. Originally the 1948 Act reflected this intention.

56. New subsection 12(8) of the Act clarifies the intention of the abandoned child provision and ensures the language more closely reflects the original intention. New subsection 12(8) provides that a child found abandoned in Australia is presumed to be a citizen by birth as provided in current paragraph 12(1)(a) of the Act. That is, the child is presumed to be born in Australia with a parent who is an Australian citizen, or a permanent resident at the time the child is born.

57. New subsection 12(9) of the Act sets out the exceptions to the presumption in new subsection 12(8). New paragraph 12(9)(a) provides that the presumption of citizenship by birth, in new subsection 12(8), does not apply if the child is known to be physically outside Australia at any time before the child was found abandoned in Australia. If the child is known to have been outside Australia, then the child has either arrived in Australia lawfully and its identity and nationality will be known, or it will have arrived as an unlawful non-citizen. New paragraph 12(9)(b) provides that the presumption of citizenship by birth does not apply if the child does not meet the requirements of citizenship by birth in paragraph 12(1)(a) of the Act - that is, if it has become clear that the child was not born in Australia, or if the child was born in Australia a parent of the child was not an Australian citizen or a permanent resident at the time of the child’s birth.

Item 21 Paragraph 13(a)

58. The purpose of this amendment is to clarify that, in order to be an Australian citizen under section 13 of the Act, the adoption process referred to in paragraph 13(a) must have commenced before the person turned 18.

59. This amendment seeks to prevent people from becoming Australian citizens under section 13 of the Act by being adopted in Australia as adults. The amendment is particularly concerned with the potential for adults to seek to be adopted in Australia in order to circumvent the provisions of the Migration Act (for example, to avoid being removed from Australia after their visa has been cancelled).

Item 22 Section 14

60. This item repeals section 14 of the Act. This amendment is consequential to the insertion of new subsections 12(8) and 12(9) by item 20.

61. Current section 14 of the Act provides for citizenship for abandoned children. New subsections 12(8) and 12(9) inserted by item 20 provides for citizenship for abandoned children. As such, current section 14 is redundant and can be repealed.

Item 23 Section 15A

62. This item is a consequential amendment to item 27 which inserts new subsection 17(4C) into the Act.

Item 24 Section 15A

63. This item omits the last two paragraphs in the simplified outline to Subdivision A of Division 2 of Part 2 of the Act in section 15A. The paragraphs are replaced with a sentence providing that a person may be required to make a pledge of allegiance before they become an Australian citizen. This reflects the extension of the pledge of allegiance to applicants for citizenship by descent and the repeal of sections 18, 19 and 19A.

64. The item also changes the reference to the ‘pledge of commitment’ to its new name, the ‘pledge of allegiance’. For this change, see item 76B.

Item 25 After section 15A

65. This item inserts new section 15B. New section 15B sets out the requirements for a person to become an Australian citizen under Subdivision A of Division 2 of Part 2 of the Act, and establishes that a person becomes an Australian citizen by descent where the Minister approves the person’s application and, if the person is required to make the pledge of allegiance, the person makes that pledge. This reflects the amendments made by the Bill that bring applications for citizenship by descent into the operation of new Subdivision D of Division 2 of Part 2 of the Act, thereby requiring approved applicants for citizenship by descent to make the pledge of allegiance in order to acquire citizenship.

Item 26 Paragraph 16(2)(c)

66. This amendment reflects the policy position that the Minister must be satisfied that an applicant for Australian citizenship under section 16 of the Act (relating to citizenship by descent) must be of good character at the time of the Minister’s decision on the application in order to be eligible to become an Australian citizen, regardless of the applicant’s age at the time the application was made.

67. The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen under section 17 of the Act.

68. The Department is aware of children aged under 18 with serious character concerns. The amendment would not have a significant impact on children overall, but will capture those young people who are of character concern and that the Australian community reasonably expects should not be extended the privilege of Australian citizenship at that time.

Item 27 After subsection 17(4B)

69. This item inserts new subsection 17(4C) after subsection 17(4B) in the Act.

70. Section 17 of the Act is concerned with the Minister’s decision on an application to become an Australian citizen under section 16 (citizenship by descent). New subsection 17(4C) provides that the Minister must not approve a person becoming an Australian citizen under section 17 if the person has committed an offence in certain circumstances. New subsection 17(4C) replicates paragraphs 24(6)(a) to 24(6)(h) of the current Act (as amended by item 86) and inserts some additional provisions.

71. The purpose of this amendment, along with amendments in items 35 and 103, is to bring consistency to the citizenship programme by applying the bar on approval for criminal offences to all application streams. The amendments relating to the offences provisions encompass more modern sentencing options that are not currently provided for in the Act.

72. Under new subsection 17(4C) of the Act the Minister must not approve the person becoming an Australian citizen at a time when any of paragraphs 17(4C)(a) to 17(4C)(j) apply to the person.

73. The purpose of new paragraph 17(4C)(a) is to prevent the Minister from approving a person becoming an Australian citizen under section 17 of the Act at a time when the person is before the court in relation to proceedings for an offence, and those proceedings have not yet been finalised. This amendment mirrors paragraph 24(6)(a) of the current Act.

74. The purpose of new paragraph 17(4C)(b) is to prevent the Minister from approving a person becoming an Australian citizen under section 17 of the Act while the person is in prison. This amendment mirrors paragraph 24(6)(b) of the current Act.

75. The purpose of new paragraph 17(4C)(c) is to prevent the Minister from approving a person becoming an Australian citizen under section 17 of the Act for 2 years after the end of the time the person has been in prison because they have been given a sentence of imprisonment of at least 12 months. The term “serious prison sentence” is a defined in section 3. This amendment mirrors paragraph 24(6)(c) of the current Act.

76. The purpose of new paragraph 17(4C)(d) is to prevent a person who has a serious prison sentence, was released from prison and was then returned to prison because they were given another serious prison sentence from being approved as an Australian citizen under section 17 of the Act for a period of 10 years after serving that second serious prison sentence. This paragraph deals with persons who are a “serious repeat offender” which is a defined in section 3. This amendment mirrors paragraph 24(6)(d) of the current Act.

77. The purpose of new paragraph 17(4C)(e) is to prevent a person who has been released by a court from serving some or all of a sentence of imprisonment on parole or licence from being approved as an Australian citizen under section 17 of the Act at a time when the person could still be ordered to serve some or all of that term of imprisonment. This would include a situation in which the person breached their parole conditions and was ordered to serve the remainder of their prison sentence. This amendment mirrors paragraph 24(6)(e) of the current Act.

78. The purpose of new paragraph 17(4C)(f) is to prevent a person who has been released from prison on conditions relating to their behaviour from being approved as an Australian citizen under section 17 of the Act at a time when action could be taken for a breach of those conditions. New paragraph 17(4C)(f) differs from current paragraph 24(6)(f) in that current paragraph 24(6)(f) refers to a person who was released from prison because they gave a security for compliance with conditions relating to their behaviour. It is not necessary for the person to have given a security in order for new paragraph 17(4C)(f) to apply. This amendment reflects amendments to paragraph 24(6)(f) in item 86.

79. The purpose of new paragraph 17(4C)(g) is to prevent a person who has been released by a court subject to conditions relating to the person’s behaviour in respect of proceedings for an offence against an Australian law from being approved as an Australian citizen under section 17 of the Act while action could be taken against them for breaching any of those conditions. This amendment reflects amendments to paragraph 24(6)(g) in item 44.

80. The purpose of new paragraph 17(4C)(h) is to prevent a person who has been ordered by a court to be confined in a mental health care facility in connection with proceedings for an offence from being approved as an Australian citizen under section 17 of the Act while they remain in that facility. This amendment mirrors paragraph 24(6)(h) of the current Act.

81. There is no equivalent provision to paragraph 17(4C)(i) in the current Act. This is a new provision which recognises modern sentencing practices. That is, it is increasingly common for courts to impose orders for home detention against offenders as opposed to sentences of imprisonment. The amendment reflects the policy position that a person must not be approved to become an Australian citizen under section 17 of the Act if they have been convicted of an offence against an Australian law and while they are subject to an order for home detention in connection with proceedings for that offence. This amendment reflects amendments to subsection 24(6) in item 88.

82. New paragraph 17(4C)(j) of the Act reflects the policy position that a person must not be approved to become an Australian citizen under section 17 of the Act at a time when they have been ordered by a court to participate in a residential scheme or program in connection with the commission of a criminal offence, whether it be a drug rehabilitation program or a residential program for a person with a mental illness. The provision also applies to people who have been ordered to participate in “any other residential scheme or program” in connection with the commission of an offence, in recognition of the variety of residential schemes a court could order a person to participate in.

83. There is no equivalent provision to paragraph 17(4C)(j) in the current Act. This is a new provision which recognises modern sentencing practices. That is, it is increasingly common for courts to impose orders on offenders that require them to participate in residential programs instead of imposing sentences of imprisonment. The amendment reflects the policy position that a person must not be approved to become an Australian citizen under section 17 of the Act if they have been convicted of an offence against an Australian law and they are subject to a residential scheme or program in connection with proceedings for that offence. This amendment reflects amendments to subsection 24(6) in item 88.

Item 28 After section 17

84. This item inserts new section 17A to provide for the cancellation of a person’s approval under section 17 to become a citizen by descent.

85. New subsection 17A(1) provides that the Minister must, by writing, cancel an approval where, assuming that a decision on the application had not yet been made, the Minister is satisfied that the person would not be approved under section 17 because the Minister is not satisfied of the person’s identity (subsection 17(3)), because the person is a risk to national security (subsection 17(4)), or because the person has been convicted of a national security offence (subsection 17(4A)).

86. In effect, subsection 17A(1) requires the Minister to cancel an approval where no longer satisfied that the person meets the requirements of those provisions. This may occur where, for example, there is a change in the person’s circumstances or where new information about the person comes to light. The mandatory nature of this new power reflects the mandatory bar on approval in subsections 17(3), 17(4) and 17(4A), such that a person whose identity is in doubt, or who is of national security concern, is not entitled to become an Australian citizen. This mandatory cancellation power only exists if the person has not yet become a citizen under new section 32AD.

87. New subsection 17A(2) provides the Minister with a discretionary power to cancel an approval given to a person under section 17 where, assuming that a decision on the application had not yet been made, the Minister is satisfied that the person would not be given an approval under section 17 (for reasons other than the identity and national security reasons covered by new subsection 17A(1)). The Minister may choose to exercise this power where, for example, new information about the person comes to light and causes the Minister to be no longer satisfied that the person meets the eligibility criteria in subsections 16(2) or (3). This discretionary cancellation power only exists if the person has not yet become a citizen under new section 32AD.

88. New subsection 17A(3) provides the Minister with a discretionary power to cancel an approval given to a person under section 17 where the person has been approved to become an Australian citizen but, within 12 months after the day on which the person received the notice of the approval, the person has failed to make a pledge of allegiance and the person’s reason for the failure is not one that is prescribed by the Regulation. This reflects the policy position that, for persons required to make the pledge of allegiance in order to become an Australian citizen, the pledge should be made within a reasonable time after being approved to become a citizen. This discretionary cancellation power only exists if the person has not yet become a citizen under new section 32AD.

Item 29 Sections 18 and 19

89. This item repeals sections 18 and 19. This reflects the amendments made by the Bill that bring applications for citizenship by descent into the operation of new Subdivision D of Division 2 of Part 2 of the Act, thereby requiring approved applicants for citizenship by descent to make the pledge of allegiance before acquiring citizenship.

Item 30 Section 19A

90. This is a consequential amendment to item 111 which inserts a new power allowing the Minister to revoke a person’s Australian citizenship in circumstances where the person is approved as an Australian citizen by descent and the Minister is satisfied that the approval should not have been given.

Item 31 Section 19B

91. This item contains an amendment to the simplified outline in section 19B (dealing with citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral agreement) so that it now refers to the offences provisions in new subsection 19DA(7B) inserted by item 35.

Item 32 Section 19B

92. This item contains an amendment to the simplified outline in section 19B (dealing with citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral agreement) so that it now refers to the pledge of allegiance. This amendment is consequential to the insertion of Subdivision D at the end of Division 2 of Part 2 of the Act by item 108.

93. The item also changes the reference to the ‘pledge of commitment’ to its new name, the ‘pledge of allegiance’. For this change, see item 133.

Item 33 After section 19B

94. This item inserts new section 19BA. New section 19BA sets out the requirements for a person to become an Australian citizen under Subdivision A of Division 2 of Part 2 of the Act, and establishes that a person becomes an Australian citizen in accordance with the Hague Convention on Intercountry Adoption or a bilateral agreement where the Minister approves the person’s application and, if the person is required to make the pledge of allegiance, the person makes that pledge. This reflects the amendments made by the Bill that bring applications for citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral agreement into the operation of new Subdivision D of Division 2 of Part 2 of the Act, thereby requiring approved applicants to make the pledge of allegiance before acquiring citizenship.

Item 34 Paragraph 19C(2)(g)

95. This item omits the reference to an applicant being aged 18 or over for the purposes of the good character requirement in paragraph 19C(2)(g). The consequence of this amendment is that the Minister must be satisfied that an applicant for Australian citizenship under section 19C of the Act must be of good character at the time of the decision on the application, regardless of their age at the time the application was made.

96. The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen under section 19D of the Act.

97. The Department is aware of children aged under 18 with serious character concerns. The amendment would not have a significant impact on children overall, but will capture those young people who are of character concern and that the Australian community reasonably expects should not be extended the privilege of Australian citizenship at that time.

Item 35 After subsection 19D(7A)

98. This item inserts new subsection 19D(7B) in the Act. New subsection 19D(7B) prevents the Minister from approving a person becoming an Australian citizen under section 19D if the person has committed an offence in certain circumstances. New subsection 19D(7B) essentially replicates paragraphs 24(6)(a) to 24(6)(h) of the current Act (reflecting amendments to current paragraphs 24(6)(f) and 24(6)(g) in item 86) and inserts some additional provisions.

99. The purpose of this amendment, along with items 27 and 103, is to bring consistency to the citizenship programme by applying the bar on approval for criminal offences to all application streams. The amendments relating to the offences provisions encompass more modern sentencing options that are not currently provided for in the Act.

100. Under new subsection 19D(7B) of the Act the Minister must not approve the person becoming an Australian citizen at a time when any of paragraphs 19D(7B)(a) to 19D(7B)(j) apply to the person.

101. The purpose of new paragraph 19D(7B)(a) is to prevent the Minister from approving a person becoming an Australian citizen under section 19D of the Act at a time when the person is before the court in relation to proceedings for an offence, and those proceedings have not yet been finalised. This amendment mirrors paragraph 24(6)(a) of the current Act.

102. The purpose of new paragraph 19D(7B)(b) is to prevent the Minister from approving a person becoming an Australian citizen under section 19D of the Act while the person is in prison. This amendment mirrors paragraph 24(6)(b) of the current Act.

103. The purpose of new paragraph 19D(7B)(c) is to prevent the Minister from approving a person becoming an Australian citizen under section 19D of the Act for 2 years after the end of the time the person has been in prison because they have been given a sentence of imprisonment of at least 12 months. The term “serious prison sentence” is a defined in section 3. This amendment mirrors paragraph 24(6)(c) of the current Act.

104. The purpose of new paragraph 19D(7B)(d) is to prevent a person who has a serious prison sentence, was released from prison and was then returned to prison because they were given another serious prison sentence from being approved as an Australian citizen under section 19D of the Act for a period of 10 years after serving that second serious prison sentence. This paragraph deals with persons who are a “serious repeat offender” which is a defined in section 3. This amendment mirrors paragraph 24(6)(d) of the current Act.

105. The purpose of new paragraph 19D(7B)(e) is to prevent a person who has been released by a court from serving some or all of a sentence of imprisonment on parole or licence from being approved as an Australian citizen under section 19D of the Act at a time when the person could still be ordered to serve some or all of that term of imprisonment. This would include a situation in which the person breached their parole conditions and was ordered to serve the remainder of their prison sentence. This amendment mirrors paragraph 24(6)(e) of the current Act.

106. The purpose of new paragraph 19D(7B)(f) is to prevent a person who has been released from prison on conditions relating to their behaviour from being approved as an Australian citizen under section 19D of the Act at a time when action could be taken for a breach of those conditions. New paragraph 19D(7B)(f) differs from current paragraph 24(6)(f) in that current paragraph 24(6)(f) refers to a person who was released from prison because they gave a security for compliance with conditions relating to their behaviour. It is not necessary for the person to have given a security in order for new paragraph 19D(7B)(f) to apply. This amendment reflects amendments to paragraph 24(6)(f) in item 86.

107. The purpose of new paragraph 19D(7B)(g) is to prevent a person who has been released by a court subject to conditions relating to the person’s behaviour in respect of proceedings for an offence against an Australian law from being approved as an Australian citizen under section 19D of the Act while action could be taken against them for breaching any of those conditions. This amendment reflects amendments to paragraph 24(6)(g) in item 86.

108. The purpose of new paragraph 19D(7B)(h) is to prevent a person who has been ordered by a court to be confined in a mental health care facility in connection with proceedings for an offence from being approved as an Australian citizen under section 19D of the Act while they remain in that facility. This amendment mirrors paragraph 24(6)(h) of the current Act.

109. There is no equivalent provision to paragraph 19D(7B)(i) in the current Act. This is a new provision which recognises modern sentencing practices. That is, it is increasingly common for courts to impose orders for home detention against offenders as opposed to sentences of imprisonment. The amendment reflects the policy position that a person must not be approved to become an Australian citizen under section 19D of the Act if they have been convicted of an offence against an Australian law and while they are subject to an order for home detention in connection with proceedings for that offence. This amendment reflects amendments to subsection 24(6) in item 45.

110. New paragraph 19D(7B)(j) of the Act reflects the policy position that a person must not be approved to become an Australian citizen under section 19D of the Act at a time when they have been ordered by a court to participate in a residential scheme or program in connection with the commission of a criminal offence, whether it be a drug rehabilitation program or a residential program for a person with a mental illness. The provision also applies to people who have been ordered to participate in “any other residential scheme or program” in connection with the commission of an offence, in recognition of the variety of residential schemes in which a court could order a person to participate.

Item 36 After section 19D

111. This item inserts new section 19DA, which provides the Minister with the power to cancel a person’s approval under section 19D to become a citizen in accordance with the Hague Convention on Intercountry adoption or a bilateral agreement. This item mirrors cancellation provisions also inserted by the Bill for persons approved to become citizens by descent (see item 28) and by resumption (see item 104).

112. New subsection 19DA(1) provides that the Minister must, by writing, cancel an approval where, assuming that a decision on the application had not yet been made, the Minister is satisfied that the person would not be approved under section 19D because the Minister is not satisfied of the person’s identity (subsection 19D(4)), because the person is a risk to national security (subsection 19D(5)), or because the person has been convicted of a national security offence (subsection 19D(6)). In effect, subsection 19DA(1) requires the Minister to cancel an approval where no longer satisfied that the person meets the requirements of those provisions. This may occur where, for example, where there is a change in the person’s circumstances or where new information about the person comes to light. The mandatory nature of this new power reflects the mandatory bar on approval in subsections 19D(4), 19D(5) and 19D(6), such that a person whose identity is in doubt, or who is of national security concern, is not entitled to become an Australian citizen. This mandatory cancellation power only exists if the person has not yet become a citizen under new section 32AD.

113. New subsection 19DA(2) provides the Minister with a discretionary power to cancel an approval given to a person under section 19D where, assuming that a decision on the application had not yet been made, the Minister is satisfied that the person would not be given an approval under section 19D (for reasons other than the identity and national security reasons covered by new subsection 19DA(1)). The Minister may choose to exercise this power where, for example, new information about the person comes to light and causes the Minister to be no longer satisfied that the person meets the eligibility criteria in subsection 19C(2). This discretionary cancellation power only exists if the person has not yet become a citizen under new section 32AD.

114. New subsection 19DA(3) provides the Minister with a discretionary power to cancel an approval given to a person under section 19D where the person has been approved to become an Australian citizen but, within 12 months after the day on which the person received the notice of the approval, the person has failed to make a pledge of allegiance and the person’s reason for the failure is not one that is prescribed by the Regulation. This reflects the policy position that, for persons required to make the pledge of allegiance in order to become an Australian citizen, the pledge should be made within a reasonable time after being approved to become a citizen. This discretionary cancellation power only exists if the person has not yet become a citizen under new section 32AD.

Item 37 Sections 19E and 19F

115. This item repeals sections 19E and 19F. This reflects the amendments made by the Bill that bring applications for citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral agreement into the operation of new Subdivision D of Division 2 of Part 2 of the Act, thereby requiring approved applicants to make the pledge of allegiance before acquiring citizenship.

Item 38 Section 19G

116. The item changes the reference to the ‘pledge of commitment’ in the simplified outline in section 19G to its new name, the ‘pledge of allegiance’. For this change, see item 133.

Item 39 Paragraph 20(b)

117. The item changes the reference to the ‘pledge of commitment’ in paragraph 20(b) to its new name, the ‘pledge of allegiance’. For this change, see item 133.

Item 40 Section 20 (note)

118. Section 20 deals with the requirements for becoming a citizen by conferral. This item repeals the note at the end of section 20 and substitutes a new note. The new note is consequential to the insertion of Subdivision D at the end of Division 2 of Part 2 of the Act by item 108 of the Bill.

Item 41 Paragraph 21(2)(e)

119. This item repeals and substitutes paragraph 21(2)(e) of the Act. New paragraph 21(2)(e) requires applicants seeking to satisfy the general eligibility criteria for citizenship by conferral to have competent English. This amendment reflects the Government’s position that English language proficiency is essential for economic participation and promotes integration into the Australian community. It is an important creator of social cohesion and is essential to experiencing economic and social success in Australia.

120. A definition of “competent English” is provided by item 8 of the Bill. The definition provides that the circumstances in which a person has competent English are to be determined by the Minister by legislative instrument. The power to make this instrument is provided in new paragraph 21(9)(a) (see item 53).

Item 42 Paragraph 21(2)(f)

121. This item amends paragraph 21(2)(f) to insert a reference to “Australian values”. In accordance with subsection 21(2A), paragraph 21(2)(f) is taken to be satisfied by an applicant only where the applicant successfully completes the citizenship test determined by the Minister under subsection 23A(1). As a result, the inclusion of “Australian values” in paragraph 21(2)(f) clarifies that Australian values (which include the shared values of respect, equality and freedom) is a subject area that must be tested in the citizenship test and only successful completion of the citizenship test enables the Minister to be satisfied that a person has an adequate knowledge of Australia, Australian values and of the responsibilities and privileges of Australian citizenship for the purposes of paragraph 21(2)(f).

Item 43 After paragraph 21(2)(f)

122. This item inserts new paragraph (fa) into subsection 21(2) of the Act, which sets out the general eligibility criteria for Australian citizenship by conferral. New paragraph 21(2)(fa) sets out an additional eligibility criterion, requiring the Minister to be satisfied that the person has integrated into the Australian community. In determining whether a person has integrated into the Australian community, a legislative instrument made under new subsection 21(9) will specify the matters to which the Minister may or must have regard (see item 53).

Item 44 At the end of subsection 21(2)

123. This item inserts a note to subsection 21(2), which states that a person may be taken to satisfy the general residence requirement under section 22AA. Section 22AA is inserted by item 68 of this Bill, and broadly provides that the Minister may waive the general residence requirements where an administrative error has caused an applicant to believe that he or she was an Australian citizen and the error contributed to the applicant not being able to satisfy the general residence requirement.

Item 45 Subsection 21(2A)

124. This item omits the reference to paragraph 21(2)(e) from subsection 21(2A). The effect of this amendment is that a person’s English proficiency will no longer be tested through the citizenship test determined under subsection 23A(1). Instead, the Minister is empowered to determine, in a legislative instrument made under new subsection 21(9), the circumstances in which a person has competent English and the information or documentation relating to a person having competent English. The intention is that, pursuant to new paragraphs 21(9)(b), (c) and (d), the provision of information or documentation relating to a person having competent English must accompany an application at the time the application is made. The Minister’s power to determine these matters is inserted by item 53.

Item 46 Subparagraph 21(3)(d)(ii)

125. This item amends subparagraph 21(3)(d)(ii) to refer to a person having competent English instead of demonstrating a basic knowledge of the English language. This item is consequential to the amendment made by item 41. The effect of the amendment is that a person is capable of satisfying paragraph 21(3)(d) (which relates to whether a person has a permanent or enduring physical or mental incapacity) where the incapacity means that the person is not capable of having competent English at the time the person made the application for citizenship by conferral.

Item 47 Subparagraph 21(3)(d)(iii)

126. This item amends subparagraph 21(3)(d)(iii) so that it now also refers to a person having an adequate knowledge of Australian values. This item is consequential to the amendment made by item 42. The effect of the amendment is that a person is capable of satisfying paragraph 21(3)(d) (which relates to whether a person has a permanent or enduring physical or mental incapacity) where the incapacity means that the person is not capable of demonstrating an adequate knowledge of Australia, Australian values and of the responsibilities and privileges of Australian citizenship.

Item 48 At the end of subsections 21(3) and (4)

127. This item inserts a note to subsections 21(3) and (4), which states that a person may be taken to satisfy the general residence requirement under section 22AA. Section 22AA is inserted by item 68 of this Bill, and broadly provides that the Minister may waive the general residence requirements where an administrative error has caused an applicant to believe that he or she was an Australian citizen and the error contributed to the applicant not being able to satisfy the general residence requirement or it is in the public interest to waive the requirement.

Item 49 Subsection 21(5)

128. This is a technical amendment, see item 51.

Item 50 Paragraph 21(5)(a)

129. This is a technical amendment, see item 51.

Item 51 Paragraph 21(5)(b)

130. This item repeals current paragraph 21(5)(b) of the Act and substitutes new paragraphs 21(5)(b),21(5)(c) and 21(5)(d).

131. Amended subsection 21(5) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that:

· the person is aged under 18 at the time the person made the application; and

· at the time the person made the application and at the time of the Minister’s decision on the application:

§ the person is a permanent resident; or

§ the person holds a permanent visa of a kind determined in an instrument under subsection 3(2), the person has not entered Australia as the holder of that visa and a parent of the person is an Australian citizen;

· the person is of good character at the time of the Minister’s decision on the application; and

· if the person is aged 16 or over at the time of application, the person has competent English.

132. For the purposes of new paragraph 21(5)(b)(ii), the visa to be determined in the instrument is the Adoption (subclass 102) visa. This amendment will enable children adopted overseas, who sometimes have difficulty obtaining a travel document, ease of travel to Australia.

133. Amended subsection 21(5) of the Act reflects the policy intention that an applicant must be of good character at the time of the Minister’s decision on the application in order to be eligible to be approved as an Australian citizen under section 24 in accordance with that provision. The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen.

134. The Department is aware of children aged under 18 with serious character concerns. The amendment would not have a significant impact on children overall, but will capture those young people who are of character concern and that the Australian community reasonably expects should not be extended the privilege of Australian citizenship at that time.

Item 52 Paragraph 21(6)(d)

135. The purpose of this amendment is to require all persons who make an application to become an Australian citizen by conferral on the basis of subsection 21(6) of the Act to be of good character at the time of the Minister’s decision on the application. This represents a change from current paragraph 21(6)(d) which only requires persons who are aged 18 years or over at the time the application was made to be of good character at the time of the Minister’s decision on the application. The amendment recognises the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes, and that the Minister should therefore have the discretion to refuse to approve such a person becoming an Australian citizen.

136. The Department is aware of children aged under 18 with serious character concerns. The amendment would not have a significant impact on children overall, but will capture those young people who are of character concern and that the Australian community reasonably expects should not be extended the privilege of Australian citizenship at that time.

Item 53 At the end of section 21

137. This item inserts new subsection 21(9) into the Act. New subsection 21(9) provides for the Minister to determine matters relating to whether a person has competent English.

138. Under new paragraph 21(9)(a), the Minister is empowered to determine the circumstances in which a person has competent English. This determination will enable the Minister to determine, for example, that a person has competent English where the person has sat an examination administered by a particular entity and the person achieved at least a particular score. The Minister could determine that the person must have completed this examination within, for example, three years ending on the day the person made an application for citizenship. The determination could specify other circumstances in which a person has competent English, for example, if they are a passport holder of the United Kingdom, the Republic of Ireland, Canada, the United States of America or New Zealand or through specified English language studies at a recognised Australian education provider.

139. New paragraphs (21)(9)(b) and (c) deal with information and/or documents that must be provided by an applicant, relating to the applicant having competent English, that must accompany an application or kind of application. For example, new paragraphs (21)(9)(b) and (c) enable the Minister to determine that a certificate or letter that shows that the applicant has successfully completed a test of competent English, in accordance with the circumstances to be determined under new paragraph 21(9)(a) as described above, must be provided with the person’s application for citizenship. New paragraphs (21)(9)(b) and (c) also enable the Minister to determine, for example, that a person who holds Canadian citizenship must provide a certified copy of their Canadian passport and that this document must be provided with the person’s application for citizenship.

140. New paragraph 21(9)(d) empowers the Minister to determine that, where information or a document is determined in a legislative instrument pursuant to new paragraphs 21(9)(a), (b) and (c) as described above, and that information or document is not provided with a person’s application, then the person’s application is invalid under new subsection 46(1B).

141. The effect of new paragraphs 21(9)(a), (b), (c) and (d) is that the Minister can determine what a person needs to provide with their application in order to show that they have competent English. Where the person fails to provide that information with their application, the person’s application is invalid under new subsection 46(1B). This amendment reflects the Government’s position that English language proficiency is essential for economic participation and promotes integration into the Australian community. It is an important creator of social cohesion and is essential to experiencing economic and social success in Australia.

142. New paragraph 21(9)(e) empowers the Minister to determine matters that the Minister may or must have regard to when determining whether a person has integrated into the Australian community. This relates to the new integration criterion described above in relation to item 43. Under new paragraph 21(9)(e) and for the purposes of new paragraph 21(2)(fa), the Minister may determine that regard may be had to, for example, a person’s employment status, study being undertaken by the person, the person’s involvement with community groups, the school participation of the person’s children, or, adversely, the person’s criminality or conduct that is inconsistent with the Australian values to which they committed throughout their application process. Only those applicants applying under the general eligibility requirements will be subject to new paragraph 21(2)(fa).

Item 54 Paragraphs 22(1)(a) to (c)

143. A person seeking to become a citizen by conferral by satisfying the general eligibility criteria (in subsection 21(2)), the criteria for a person with a permanent or enduing physical or mental incapacity (21(3)), or the criteria for a person aged over 60 or has a hearing, speech or sight impairment (21(4)) must satisfy the general residence requirement (section 22) or the special residence requirement (section 22A or 22B) or the defence service requirement (section 23) at the time the person made the application.

General residence requirement

144. A residence requirement is an objective measure of an aspiring citizen’s association with Australia. This period allows a person the opportunity to gain an understanding of shared Australian values, and the commitment they must make to become an Australian citizen. It also allows them time to integrate into the Australian community and acquire English language skills required for life in Australia as a successful citizen. Extending the general residency period strengthens the integrity of the citizenship programme by providing more time to examine a person’s character as a permanent resident in Australia. For these reasons the National Consultation Report on citizenship recommended increasing the permanent residency period to 4 years for the general residence requirement.

145. Item 54 repeals paragraphs 22(1)(a), (b) and (c) and substitutes those paragraphs with new paragraphs 22(1)(a) and (b). Current subsection 22(1) sets out the general residence requirement to require a person to be present in Australia for 4 years, with only the last 12 months (before applying for citizenship) spent as a permanent resident. At no time in the 4 year period can a person be an unlawful non-citizen.

146. New paragraphs 22(1)(a) and (b) provide that a person satisfies the general residence requirement for the purposes of section 21 if the person was present in Australia as a permanent resident throughout the person’s residency period immediately before the day the person makes the application and the person was not present in Australia as an unlawful non-citizen at any time during that period. A person’s residency period is determined by new subsections 22(1A) and (1B), which are inserted by items 56 and 57.

Item 55 At the end of subsection 22(1)

147. This item inserts a note to subsection 22(1), which states that a different version of section 22 applies in relation to certain New Zealand citizens. The note refers readers to subsection 22(11), which is repealed and substituted by item 67 of this Bill.

Item 56 After subsection 22(1)

148. This item inserts new subsection 22(1A) which defines “residency period”. New subsection 22(1A) provides that a person’s residency period (for the purposes of new paragraph 22(1)(a)) is a period of 4 years.

Item 57 Subsections 22(1A) and (1B)

149. This item repeals the overseas absence provisions set out in subsections 22(1A) and (1B) of the Act and substitutes new subsection 22(1B). New subsection 22(1B) reflects the changes made by items 54 and 56 in relation to the residency period. The opportunity is also taken to structure subsection 22(1B) slightly differently to current subsections 22(1A) and (1B) to aid readability.

150. Under current subsections 22(1A) and (1B), a person is taken to be present in Australia (and thereby continues to satisfy the general residence requirement) where they are absent from Australia for no more than 12 months in the required 4 year period, of which the person may not be absent from Australia for more than 90 days in the 12 month period of permanent residence immediately prior to making the application for citizenship.

151. New subsection 22(1B) makes provision for no more than 365 days of overseas absence in the 4 year period of permanent residence. As such, the permitted period of overseas absence is effectively the same across the 4 years. Referring to 365 days rather than 12 months is to allow for easier and more precise calculations.

Item 58 Subsection 22(1C) (heading)

152. This item amends the heading of subsection 22(1C) to refer to a ‘mental health care facility’ rather than a ‘psychiatric institution’. This amendment is intended to reflect more contemporary language relating to mental health matters. See also items 10, 12, 16 and 17.

Item 59 Subsection 22(1C)

153. This item contains a technical amendment that is consequential to the insertion of the new defined term ‘residency period’ by items 13 and 56 of this Bill.

Item 60 Paragraph 22(1C)(b)

154. This item amends the paragraph 22(1C)(b) to refer to a ‘mental health care facility’ rather than a ‘psychiatric institution’. This amendment is intended to reflect more contemporary language relating to mental health matters. See also items 10, 12, 16 and 17.

Item 61 Subsection 22(2)

155. This item repeals subsection 22(2), which contains a partial exemption to the general residence requirement in relation to a person born in Australia or a former Australian citizen. For these people, and where it is in the public interest to do so, the Minister may choose to exercise the discretion in new subsection 22AA to waive the general residence requirement, see item 68.

Item 62 After subsection 22(2)

156. This item inserts new subsections 22(3) and (4). The purpose of these amendments is to provide the Minister with the flexibility to prescribe, by way of legislative instrument, a range of circumstances in which, where those circumstances are satisfied by a person, the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen for the purposes of paragraph 22(1)(b) of the Act.

157. Current subsection 22(4A) of the Act provides that for the purposes of paragraph 22(1)(b), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers that the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

158. Circumstances that may be prescribed for the purposes of new subsection 22(3) of the Act include, but will not be limited to, situations where a person has unintentionally become an unlawful non-citizen for a brief period. For example, if a person made a valid application for a visa while still holding a visa (that is, while they were still lawfully present in Australia) but was not granted a bridging visa prior to their substantive visa ceasing, they will have been an unlawful non-citizen for a period of time until a further bridging visa or a further substantive visa was granted.

Item 63 Before subsection 22(4A)

159. This item inserts new subsection 22(4AA). The new provision allows the Minister to treat a period (mentioned in paragraph 22(1)(a)) as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but because of an administrative error was not a permanent resident during that period.

160. This power is necessary to overcome administrative errors that, without the exercise of the Minister’s discretion, would have an adverse impact on a person’s ability to meet the general residence requirement.

Item 64 Subsection 22(5)

161. This item repeals subsection 22(5) and is a technical amendment, consequential to the amendment made by item 63.

Item 65 Subsection 22(5A) (heading)

162. This item amends the heading of subsection 22(5A) to refer to a ‘mental health care facility’ rather than a ‘psychiatric institution’. This amendment is intended to reflect more contemporary language relating to mental health matters. See also items 10, 12, 16 and 17.

Item 66 Subsection 22(6)

163. This item is a technical amendment, consequential to the amendment made by item 54.

Item 67 Subsections 22(9) to (11)

164. This item repeals current subsections 22(9) to 22(11) of the Act and substitutes new subsections 22(9) to 22(13).

165. Current subsection 22(9) of the Act contains a Ministerial discretion (in relation to where the Minister may treat a period as one in which the person was present in Australia as a permanent resident) in respect of the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen. New subsection 22(9) provides that the discretion should only be considered if the applicant has spent 365 days or more in Australia in the 4 years immediately before making their application for citizenship. This reflects the policy position that this period of time is the minimum period of time that would sufficiently allow a spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen to understand the responsibilities and privileges of Australian citizenship.

166. This item also inserts a note after new subsection 22(9) of the Act. The note reflects that the meaning of “surviving spouse or de facto partner” for the purpose of section 22 is set out in new subsection 22(13), as inserted by this item. A definition of “spouse” is also inserted by item 7 of the Bill.

167. Under new subsection 22(10), the minimum periods of presence in Australia in new paragraph 22(9)(e) do not apply to a spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen where the Australian citizen was, throughout the period referred to in new paragraph 22(9)(a), working outside Australia as a Commonwealth officer or a State or Territory officer.

168. New subsection 22(11) saves the operation of current section 22 in relation to New Zealand citizens in a class determined under new subsection 22(12). It also saves the operation of current subsection 24(5), which provides that the Minister must not approve a person becoming an Australian citizen if the various matters set out under that subsection occur.

169. New subsection 22(12) empowers the Minister to make a legislative instrument to determine one or more classes of New Zealand citizens for the purposes of new subsection 22(11).

170. This arrangement for New Zealand citizens is a reflection of the agreement made by the Prime Ministers of Australia and New Zealand in 2016 to enable New Zealanders living in Australia to progress to permanent residence and, should they meet the requirements, citizenship.

171. The new visa pathway that resulted from this agreement, the New Zealand stream of the Subclass 189 Skilled-Independent visa, commences on 1 July 2017 and is open to New Zealand citizens who have shown a commitment and continuous contribution to Australia. The instrument made under new subsection 22(12) will specify one or more classes of New Zealand citizens who hold this visa as people to whom the old rules apply.

172. Item 67 also inserts new subsection 22(13). New subsection 22(13) contains definitions, for the purposes of new subsections 22(9) and (10), of “Commonwealth officer”, “State or Territory officer” and “surviving spouse or de facto partner”.

173. The new definitions of “Commonwealth officer” and “State or Territory officer” reflect the policy position that a person who is the spouse or de facto partner of an Australian citizen on an overseas posting (whether they are engaged by the Commonwealth or a State or Territory) does not have to be present in Australia for a particular period in order to be eligible for the discretion in subsection 22(9) of the Act.

174. The effect of paragraphs (a) and (b) of the definition of “Commonwealth officer” and paragraphs (a) and (b) of the definition of “State or Territory officer” is that the discretion in subsection 22(9) may be available where the Australian citizen for the purposes of that subsection is in the employment of the Commonwealth or a State or Territory and holds or performs the duties of any office or position established by or under a law of the Commonwealth, or a State or Territory. However, paragraph (a) of the definitions provides that a locally engaged employee is not a Commonwealth officer or a State or Territory officer for the purposes of new subsection 22(10).

175. Paragraphs (c) and (d) of the definition of “Commonwealth officer” extend the definition to members and other officers of the Australian Federal Police.

176. Paragraph (c) of the definition of “State or Territory officer” extends the definition to members of the police force or police service of a State or Territory.

177. New subsection 22(13) inserts the definition of “surviving spouse or de facto partner” into the Act. New subsection 22(13) provides that in section 22, “surviving spouse or de facto partner” of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person. The purpose of this definition is to prevent a person who was the spouse or de facto partner of an Australian citizen from benefitting from the discretion in new subsection 22(9) of the Act in circumstances where they have re-married or entered into a de facto relationship with another person.

178. The intention is that the discretion operates to allow a person who is a surviving spouse or de facto partner at the time of application to ask the Minister to treat a period when they were outside Australia with their Australian citizen spouse or de facto partner, while that spouse or de facto partner was alive, as if it was a period when the person was in Australia. The discretion does not allow time spent outside Australia after the Australian citizen spouse or de facto partner has died to be counted as if it was time in Australia.

Item 68 After section 22

179. This item inserts new section 22AA, which provides the Minister with the

personal, non-compellable power to waive the general residence requirement where the Minister is satisfied that either: (a) an administrative error made by or on behalf of the Commonwealth causes an applicant to believe that he or she was an Australian citizen, and the error contributed to the applicant not being able to satisfy the general residence requirement; or (b) it is in the public interest to do so

180. The discretionary powers under current subsections 22(4A) and (5) do not assist in this situation. These provisions empower the Minister to treat a period as one in which the person was present in Australia but for an administrative error. New section 22AA, by contrast, is intended to cover situations including where the person has spent some time outside of Australia under the belief that they were an Australian citizen and for that reason does not meet the general residence requirement.

181. New subsection 22AA(1) allows the Minister to determine, by writing, that paragraph 21(2)(c), (3)(c) or (4)(d) does not apply in relation to such a person. New subsection 22AA(2) provides that if the Minister exercises the power under subsection 22AA(1), the applicant is taken to satisfy the general residence requirement for the purposes of section 21.

182. New subsections 22AA(3) to (7) set out the rules relating to the exercise of a power under subsection 22AA(1).

183. New subsection 22AA(3) provides that the power may only be exercised by the Minister personally.

184. New subsection 22AA(4) makes it clear that subsection 22AA(1) does not impose a duty on the Minister. Rather, the power under subsection 22AA(1) is purely discretionary, even in circumstances where an applicant or another person requests the Minister to exercise that power.

185. New subsection 22AA(5) provides that the Minister must cause a statement to be tabled in each House of Parliament within 15 days of a person becoming an Australian citizen following an exercise of power under subsection 22AA(1). The statement must state that the Minister has exercised that power and set out the reasons for the exercise of the power. This is consistent with new section 52B, inserted by item 127, which requires a statement to be tabled when the Minister sets aside a decision of the Administrative Appeals Tribunal in the public interest. This ensures that the Minister is accountable to the Parliament in exercising his or her discretion under subsection 22AA(1).

186. New subsection 22AA(6) provides that a statement made under subsection 22AA(5) is not to include the name of the applicant. This protects the privacy of the applicant.

187. New subsection 22AA(7) clarifies that a determination made under subsection 22AA(1) is not a legislative instrument. This means that the laws around legislative instruments, particularly those in the Legislation Act 2003 , do not apply, such as the requirement that the determination be registered on the Federal Register of Legislation.

Item 69 Subparagraph 22A(1A)(b)(i)

188. This amendment is consequential to the insertion of new paragraph 21(2)(fa) by item 43. The effect of this amendment is that when considering the exercise of the discretion for special residence requirements (in section 22A(1A), the Minister must be satisfied that the applicant satisfies the new criterion inserted in item 43 - that is, that the person has integrated into the Australian community.

Item 70 Paragraph 22A(1)(f)

189. Section 22A sets out the special residence requirements for persons engaging in activities that are of benefit to Australia. The purpose of the amendment made by this item is to put beyond doubt that, for the purposes of the special residence requirement, the 2 year period of the person’s presence in Australia immediately before the day they made the application must have been continuous. This is to ensure consistency with paragraph 22A(1)(e), which requires the applicant to have been ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application.

Item 71 Subsection 22A(2) (heading)

190. This item amends the heading of subsection 22A(2) to refer to a ‘mental health care facility’ rather than a ‘psychiatric institution’. This amendment is intended to reflect more contemporary language relating to mental health matters. See also items 10, 12, 16 and 17.

Item 72 Paragraph 22A(2)(b)

191. This item amends paragraph 22A(2)(b) to refer to a ‘mental health care facility’ rather than a ‘psychiatric institution’. This amendment is intended to reflect more contemporary language relating to mental health matters. See also items 10, 12, 16 and 17.

Item 73 After subsection 22A(5)

192. The purpose of this amendment is to provide the Minister with flexibility to prescribe, by way of legislative instrument under new subsection 22C(2A) of the Act (inserted by item 79) a range of 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 paragraph 22A(1)(g).

193. Circumstances that may be prescribed by way of legislative instrument for the purposes of new subsection 22A(5A) of the Act include, but will not be limited to, situations where a person has unintentionally become an unlawful non-citizen as a result of the legally correct application or operation of migration law. For example, if a person made a valid application for a visa while still holding a visa (that is, while they were still lawfully present in Australia) but was not granted a bridging visa prior to their substantive visa ceasing, they will have been an unlawful non-citizen for a period of time until a further bridging visa or a further substantive visa was granted.

Item 74 Paragraph 22B(1)(f)

194. Section 22B of the Act provides a special residence requirement for persons engaged in particular kinds of work requiring regular travel outside Australia. The purpose of this amendment is to put it beyond doubt that, for the purposes of the special residence requirement in section 22B of the Act, the 12 month period of the person’s presence in Australia immediately before the day the person made the application must have been continuous. This will ensure consistency with paragraph 22B(1)(e), which provides that the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application.

Item 75 Subparagraph 22B(1A)(c)(i)

195. This amendment is consequential to the insertion of new paragraph 21(2)(fa) by item 43. The effect of this amendment is that when considering the exercise of the discretion for special residence requirements (in section 22A(1A), the Minister must be satisfied that the applicant satisfies the new criterion inserted in item 43 - that is, that the person has integrated into the Australian community.

Item 76 Subsection 22B(2) (heading)

196. This item amends the heading of subsection 22B(2) to refer to a ‘mental health care facility’ rather than a ‘psychiatric institution’. This amendment is intended to reflect more contemporary language relating to mental health matters. See also items 10, 12, 16 and 17.

Item 77 Paragraph 22A(2)(d)

197. This item amends paragraph 22A(2)(d) to refer to a ‘mental health care facility’ rather than a ‘psychiatric institution’. This amendment is intended to reflect more contemporary language relating to mental health matters. See also items 10, 12, 16 and 17.

Item 78 After subsection 22B(5)

198. This item inserts new subsection 22B(5A) into the Act. The purpose of this amendment is to provide the Minister with flexibility to prescribe, by way of legislative instrument under new subsection 22C(4) of the Act (inserted by item 80) a range of circumstances in which the Minister or delegate may treat a period as one in which a person was not present in Australia as an unlawful non-citizen for the purposes of paragraph 22B(1)(g).

199. Circumstances that may be prescribed by way of legislative instrument for the purposes of new subsection 22B(5A) will include, but will not be limited to, situations where the person has unintentionally become an unlawful non-citizen as a result of the legally correct application or operation of migration law. For example, if a person made a valid application for a visa while still holding a visa (that is, while they were still lawfully present in Australia) but was not granted a bridging visa prior to their substantive visa ceasing, they will have been an unlawful non-citizen for a period of time until a further bridging visa or a further substantive visa was granted.

Item 79 After subsection 22C(2)

200. This item inserts new subsection 22C(2A) which empowers the Minister to make a legislative instrument for the purposes of new subsection 22A(5A) and described in relation to item 73.

Item 80 At the end of section 22C

201. This item inserts new subsection 22C(4) which empowers the Minister to make a legislative instrument for the purposes of new subsection 22B(5A) and described in relation to item 78.

Item 81 Subsection 23A(1) (note)

202. This item is consequential to the changes regarding a person’s English language proficiency . Applicants required to have competent English must provide information or documentation that accompanies their application that shows that they have competent English. This is discussed in relation to item 53. Consequently, English language proficiency is no longer tested in the citizenship test. This is discussed in relation to item 45.

Item 82 After subsection 23A(3)

203. This item inserts new subsection 23A(3A) into the Act and, along with subsections 23A(3), (4) and (5), deals with a person’s eligibility to sit the citizenship test. Subsection 23A(1) requires the Minister, by written determination, to approve a test for the purposes of subsection 21(2A) (relating to general eligibility criteria for citizenship, and the citizenship test). Subsection 23A(2) requires the determination to specify what amounts to successful completion of the test, while subsection 23A(3) specifies that the determination may set out the eligibility criteria a person must satisfy to be able to sit the test.

204. Without limiting the scope of the eligibility criteria that may be determined under subsection 23A(3), new subsection 23A(3A) provides examples of what the determination may cover. New subsection 23A(3A) strengthens the integrity of the citizenship testing arrangements and makes clear that the Minister may determine that a person is not eligible to sit the citizenship test if the person has previously failed the citizenship test, if the person did not comply with one or more rules of conduct relating to the test, or if the person was found to have cheated during the test.

205. At present applicants are able to sit the citizenship test an unlimited number of times. Not only does this reduce the integrity of the testing arrangements but is also administratively and financially burdensome for the Government. A person who repeatedly fails the test does not meet the eligibility requirements and should have their application refused. This amendment will better support decision makers. Limiting the number of times a person can take a test and imposing penalties for cheating on the test was a recommendation from the National Consultation on Citizenship and had strong community support. New subsection 23A(3A) makes clear that the Minister may determine, for example, that a person who fails the citizenship test three times is not eligible to re-sit the citizenship test. Another example would be where a person is found to have cheated during the test. In this circumstance, the Minister is empowered to determine that the person is not eligible to re-sit the test. In both examples, the result would be that the person has not successfully completed the test and therefore cannot satisfy the criteria in paragraphs 21(2)(d) and (f).

Item 83 Subsection 24(1) (note)

206. This is a consequential amendment to items 90, 92 and 93.

Item 84 Subsection 24(2A)

207. This item amends subsection 24(2A) so that where the Minister exercises the discretion in new subsection 22AA(1) to determine that paragraph 21(2)(c), 21(3)(c) or 21(4)(d) (relating to the general residence requirement) does not apply in relation to a person, then the decision to approve or refuse the person’s application under subsection 24(1) must be made personally by the Minister. This is consistent with what occurs where the Minister exercises the alternative residence requirement discretion in subsection 22A(1A) or 22B(1A).

Item 85 Paragraph 24(5)(c)

208. This item repeals paragraph 24(5)(c) as it refers to current subsection 22(11). Current subsection 22(11) empowers the Minister to treat a period as a period in which a person was present in Australia as a permanent resident if they meet certain requirements in relation to being in an interdependent relationship. Current subsection 22(11) is repealed by item 67 and its substance has not been replicated elsewhere. Therefore, paragraph 24(5)(c) is no longer necessary and must be repealed.

209. This item also substitutes the repealed paragraph 24(5)(c) to provide that the Minister’s exercise of the power under new subsection 22AA(1) (relating to the Minister waiving general residence requirement) will cause the rule in subsection 24(5) (relating to where a person is not present in Australia) to not apply. The effect of the amendment is that where the Minister waives the general residence requirement in relation to a person under new section 22AA, the Minister is not precluded by subsection 24(5) from approving a person becoming an Australian at a time when the person is not present in Australia.

Item 86 Paragraphs 24(6)(f) and (g)

210. The purpose of new paragraph 24(6)(f) is to simplify the Act and to clarify that the Minister must not approve the person becoming an Australian citizen at a time when the person has been released from serving the whole or part of a sentence of imprisonment subject to conditions relating to the person’s behaviour, during any period during which action can be taken against the person for a breach of any of those conditions. New paragraph 24(6)(f) recognises that a court can release a person from serving the whole or part of a sentence of imprisonment in circumstances where the person does not provide a security for compliance with conditions relating to their behaviour.

211. The purpose of new paragraph 24(6)(g) is to prevent a person who has been released by a court subject to conditions relating to the person’s behaviour in respect of proceedings for an offence against an Australian law from being approved as an Australian citizen under section 24 of the Act while action could be taken against them for