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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP TEST REVIEW AND OTHER
MEASURES) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
Senator the Hon. Chris Evans)
AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP TEST REVIEW AND OTHER
MEASURES) BILL 2009
OUTLINE
The Australian Citizenship Amendment (Citizenship Test Review and Other
Measures) Bill 2009 ('the Bill') amends the Australian Citizenship Act 2007
('the Act') to implement the recommendations of the Australian Citizenship
Test Review Committee ('the Committee') agreed to by Government and to
strengthen the eligibility requirements for citizenship by conferral for
applicants under 18.
In particular, the Bill:
. provides that certain applicants may be eligible for citizenship
without sitting the citizenship test if, at the time of application,
they have a physical or mental incapacity that is as a result of
suffering torture or trauma outside Australia;
. provides that the citizenship test must be successfully completed
within a period specified by the Minister in a written determination;
and
. provides that to be eligible for citizenship by conferral, applicants
who are under 18 years of age must be permanent residents at both the
time of application and the time of decision.
The amendments relating to the citizenship test are the result of the
recommendations of the Committee in its report entitled Moving forward...
Improving Pathways to Citizenship ('the Report').
In particular, the Government agreed to amend paragraph 21(3)(d) of the Act
to ensure that a small group of individuals who suffer from psychological
disorders as a direct result of having experienced torture and trauma, do
not need to sit the citizenship test.
The government also agreed that the citizenship testing processes should be
streamlined and realigned to combine citizenship testing with the
citizenship application.
The amendments relating to the eligibility requirements for citizenship by
conferral for applicants under 18 seek to ensure that applicants who are
under 18 years of age must be permanent residents to be eligible for
citizenship by conferral. The amendments will ensure the integrity of the
department's citizenship and migration programs.
financial impact statement
The financial impact of these amendments will be minimal as funds will be
allocated from existing resources.
AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP TEST REVIEW AND OTHER
MEASURES) BILL 2009
notes on individual clauses
Clause 1 Short title
Clause 1 provides that the short title by which the Act may be cited is the
Australian Citizenship Amendment (Citizenship Test Review and Other
Measures) Act 2009.
Clause 2 Commencement
Subclause 2(1) provides that each provision of the Act specified in column
1 of the table commences, or is taken to have commenced, in accordance with
column 2 of the table. Subclause 2(1) also provides that any other
statement in column 2 has effect according to its terms.
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
the Act receives the Royal Assent.
Table Item 2 provides that Schedule 1 to the Act commences on a single day
to be fixed by Proclamation. However, it also provides that if any
provision(s) do not commence within the period of 6 months beginning on the
day on which the Act receives the Royal Assent, they commence on the first
day after the end of that period.
Subclause 2(2) explains that column 3 of the table contains additional
information that is not part of this Act. It specifies that information in
this column may be added to or edited in any published version of this Act.
An explanatory note is provided at the end of this table to assist the
reader. It specifies that the table relates only to the provisions of this
Act as originally passed by both Houses of Parliament and assented to. It
states that the table will not be expanded to deal with provisions inserted
in this Act after the Royal Assent.
Clause 3 Schedule(s)
This clause provides that each Act specified in a Schedule to the
Australian Citizenship Amendment (Citizenship Test Review and Other
Measures) Act 2009 is amended or repealed as set out in the applicable
items in the Schedule concerned. In addition, any other item in a Schedule
to the Australian Citizenship Amendment (Citizenship Test Review and Other
Measures) Act 2009 has effect according to its terms.
SCHEDULE 1 - Amendments
Australian Citizenship Act 2007
Item 15 Section 19G
This item omits "permanent" from section 19G of Subdivision B of Division
2 of Part 2 of the Act. Section 19G is a simplified outline of Subdivision
B and contains information about eligibility for citizenship by conferral.
Section 19G as amended explains that a person may be eligible to become an
Australian citizen under Subdivision B of the Act if he or she has a
physical or mental incapacity (rather than a "permanent" physical or mental
incapacity).
This amendment is consequential to the amendments made by items 25 and 27,
which provide that certain people who have suffered torture or trauma
outside Australia and who have a physical or mental incapacity (which need
not be permanent) may meet the requirements for citizenship by conferral.
The word "permanent" is removed from the simplified outline in section 19G
to ensure that the explanation is consistent with the amendments made by
items 25 and 27.
Item 20 Subsection 21(2A)
This item repeals the current subsection 21(2A) in Subdivision B of
Division 2 of Part 2 of the Act and substitutes a new subsection 21(2A).
Currently subsection 21(2A) provides that paragraphs 21(2)(d), (e) and (f)
of the Act are taken to be satisfied only if the Minister is satisfied that
the person has, before making the application under Part 2 of the Act, sat
and successfully completed a test approved in a determination under section
23A.
Paragraphs 21(2)(d), (e) and (f) provide that, in order for a person to be
eligible to become a citizen, the Minister must be satisfied that the
person:
. understands the nature of the application under subsection 21(1) to
become an Australian citizen;
. possesses a basic knowledge of the English language; and
. has an adequate knowledge of Australia and of the responsibilities and
privileges of Australian citizenship.
New subsection 21(2A) provides that paragraphs 21(2)(d), (e) and (f) are
taken to be satisfied only if the Minister is satisfied that:
. the person has sat a test approved in a determination under section
23A;
. the person was eligible to sit that test (worked out in accordance
with that determination);
. the person started that test within the period worked out in
accordance with that determination and completed that test within the
period (the "relevant test period") worked out in accordance with that
determination; and
. the person successfully completed that test (worked out in accordance
with that determination) within the relevant test period.
The purpose of this item is to remove the requirement that a person must
sit and successfully complete a citizenship test before making an
application under Part 2 of the Act and replace this with a requirement
that the applicant must sit and successfully complete a test within a
certain period of time.
This amendment is in line with the amendment made by item 32 of this
Schedule, which provides that the Minister may determine the period within
which a person must start the test and for the period within which a person
must complete the test.
This tranche of amendments is consistent with the Australian Citizenship
Test Review Committee's recommendation that the process of applying for
citizenship and sitting the test be streamlined. By removing the
requirement that an applicant must sit and successfully complete the test
before applying for citizenship, the amendments will allow eligible
applicants in many circumstances to meet all the requirements for
citizenship on the same day, including successfully completing the test.
However, to ensure that a person will not be eligible for citizenship if
they are unable to successfully complete the test within a reasonable
period of time, the amendments allow the Minister to specify a period of
time within which a person must start the test and complete the test.
Item 25 Paragraph 21(3)(d)
This item repeals the current paragraph 21(3)(d) in Subdivision B of
Division 2 of Part 2 of the Act and substitutes a new paragraph. It also
inserts a note which provides that the heading to subsection 21(3) is
altered by omitting "Permanent physical" and substituting "Physical".
Current subsection 21(3) provides that a person is eligible to become an
Australian citizen if the Minister is satisfied that the person meets the
requirements of paragraphs 21(3)(a) - (f). In particular, current
paragraph 21(3)(d) contains the requirement that the person has a permanent
physical or mental incapacity, at the time the person made the application
under Part 2 of the Act, that means the person is not capable of
understanding the nature of the application at that time.
New paragraph 21(3)(d) contains the requirement that the person satisfies
new subsection 21(3A) or (3B), as inserted by item 27 of this Schedule.
Item 27 After subsection 21(3)
This item inserts new subsections 21(3A) and (3B) in Subdivision B of
Division 2 of Part 2 of the Act.
New subsection 21(3A) contains the same words as current paragraph 21(3)(d)
and is intended to have the same legal effect.
New subsection 21(3B) provides that a person satisfies the subsection if
the person has a physical or mental incapacity, at the time the person made
the application, that is a result of the person having suffered torture or
trauma outside Australia and that means the person meets the requirements
of new paragraph 21(3B)(a), (b) or (c).
New paragraph 21(3B)(a) contains the requirement that the person is not
capable of understanding the nature of the application at the time the
person made the application. New paragraph 21(3B)(b) contains the
requirement that the person is not capable of demonstrating a basic
knowledge of the English language at that time. New paragraph 21(3B)(c)
contains the requirement that the person is not capable of demonstrating an
adequate knowledge of Australia and of the responsibilities and privileges
of Australian citizenship at that time.
Relevantly, a person need only satisfy the requirements of paragraph
21(3B)(a), (b) or (c) in order to satisfy subsection 21(3B).
New subsection 21(3B) has been inserted in response to a recommendation of
the Australian Citizenship Test Review Committee. The Committee considered
that the current exemption criteria do not take into consideration the
effect of severe and chronic symptoms resulting from the experience of
torture and trauma. The purpose of new subsection 21(3B) is to ensure that
certain people who have a physical or mental incapacity as a result of
having suffered torture or trauma outside Australia, are exempted from the
requirement to sit a citizenship test.
Item 30 Subsection 21(5)
This item repeals the current subsection 21(5) and substitutes a new
subsection.
The current subsection 21(5) provides that a person is eligible to become
an Australian citizen if the Minister is satisfied that the person is under
18 years of age at the time the person made the application. The current
subsection does not require a person to be a permanent resident.
New subsection 21(5) provides that a person is eligible to become an
Australian citizen if the Minister is satisfied that the person is under 18
years of age at the time of application and is a permanent resident at the
time of application and at the time of the Minister's decision.
"Permanent resident" is defined in section 5 of the Act to mean, among
other things, that a person is in Australia and holds a permanent visa.
The purpose of new subsection 21(5) is to ensure the integrity of the
citizenship and migration programs by preventing an applicant for
citizenship by conferral who is under 18 from being eligible for
citizenship if they are not eligible for a permanent visa under the
Migration Act 1958 and Migration Regulations 1994. This is consistent with
subclauses 21(2) (relating to general eligibility), 21(3) (relating to
applicants with a physical or mental incapacity) and 21(4) (relating to
applicants aged 60 or over or with a hearing, speech or sight impairment),
all of which require the applicant to be a permanent resident at the time
of application and at the time of decision to be eligible for citizenship.
Item 32 After subsection 23A(5)
This item inserts new subsection 23A(5A) after current subsection 23A(5)
in Subdivision B of Division 2 of Part 2 of the Act. New subsection 23A(5A)
provides that a determination under subsection 23A(1) may provide for the
period within which a person must start the test and for the period within
which a person must complete the test.
Subsection 23A(1) provides that the Minister must, by written
determination, approve a test for the purposes of subsection 21(2A) of the
Act, as amended by item 20 of this Schedule.
The purpose of new subsection 23A(5A) is to allow the Minister to specify a
period of time within which an applicant for citizenship by conferral must
start the test and for the period within which a person must complete the
test. This amendment is consistent with the Australian Citizenship Test
Review Committee's recommendation that the process of applying for
citizenship and sitting the test be streamlined.
The combined effect of new subsections 23A(5A) and 21(2A) is that an
applicant for citizenship by conferral must sit and successfully complete a
citizenship test within a period of time specified by the Minister.
Item 40 After paragraph 26(1)(b)
This item inserts new paragraph 26(1)(ba) after current paragraph 26(1)(b)
in Subdivision B of Division 2 of Part 2 of the Act. Subsection 26(1)
provides that a person must make a pledge of commitment to become an
Australian citizen unless the person meets the requirements of paragraph
26(1)(a), (b) or (c). In particular, paragraph 26(1)(b) provides that a
person must make the pledge of commitment to become an Australian citizen
unless the person has a permanent physical or mental incapacity at the time
the person made the application which means the person is not capable of
understanding the nature of the application at that time.
New paragraph 26(1)(ba) provides that the pledge of commitment must be made
unless the person has a mental or physical incapacity, at the time the
person made the application to become an Australian citizen, that is the
result of the person having suffered torture or trauma outside Australia
and that means the person meets the requirements in subparagraph
26(1)(ba)(i), (ii) or (iii).
Subparagraph 26(1)(ba)(i) contains the requirement that the person is not
capable of understanding the nature of the application at the time the
person made the application. Subparagraph 26(1)(ba)(ii) contains the
requirement that the person is not capable of demonstrating a basic
knowledge of the English language at that time. Subparagraph
26(1)(ba)(iii) contains the requirement that the person is not capable of
demonstrating an adequate knowledge of Australia and of the
responsibilities and privileges of Australian citizenship at that time.
The purpose of this item is to exempt from the requirement to make a pledge
of commitment, certain persons who suffer severe or chronic symptoms
resulting from the experience of torture or trauma. The wording in new
paragraph 26(1)(ba) mirrors the wording in new subsection 21(3B), as
inserted by item 27 of this Schedule, to ensure that certain people who, as
a result of suffering torture or trauma outside Australia are exempted from
the requirement to sit a citizenship test, are also exempted from the
requirement to make a pledge of commitment to become an Australian citizen.
Item 44 Subsection 46(1A)
This item repeals the current subsection 46(1A) and substitutes a new
subsection in Part 3 of the Act.
The purpose of this item is to ensure that the application fee prescribed
in the regulations may continue to include a component that relates to the
cost of administering the citizenship test.
Section 46 deals with application requirements under the Act. Currently
subsection 46(1A) provides that the fee prescribed by the regulations for
applications made under section 21 of the Act, in relation to persons who
have sat a citizenship test or tests approved in a determination under
section 23A of the Act, may include a component that relates to the sitting
of that test or those tests. Subsection 46(1A) therefore reflects the
current requirement that a person must sit the citizenship test before
making an application for citizenship under section 21 of the Act.
New subsection 21(2A), as amended by item 20 of this Schedule, removes the
requirement that a person must successfully complete a citizenship test
before making an application for citizenship under section 21 of the Act.
To ensure consistency in the Act, subsection 46(1A) must be amended in line
with the amendments to subsection 21(2A).
New subsection 46(1A) provides that for applications made under section 21
by persons who in order to be eligible for Australian citizenship under
subsection 21(2) (relating to general eligibility for citizenship) must sit
a citizenship test approved in a determination under section 23A, the fee
prescribed by the regulations may include a component that relates to the
sitting of that test. Subsection 46(1A) applies in relation to persons who
must sit a citizenship test in order to be eligible to become an Australian
citizen under subsection 21(2) of the Act.
Item 50 Application
This item deals with the application of some of the amendments to the Act
contained in this Schedule.
Subitem 50(1) provides that the amendments made by items 20, 25, 27, 30, 40
and 44 apply in relation to applications made on or after the commencement
of those items. The commencement of those items is provided for by
subclause 2(1) of this Act. The purpose of subitem 50(1) is to ensure that
applicants who make applications before the commencement of the above items
are subject to the current provisions in the Act.
Subitem 50(2) limits the scope of subitem 50(1) in relation item 20 of this
Schedule. Subitem 50(2) provides that the amendment made by item 20 does
not apply in relation to a person if the person makes an application on or
after the commencement of the item, and the Minister is satisfied that the
person had, before that commencement, sat and successfully completed a
citizenship test approved in a determination under section 23A.
Subitem 50(2) ensures that a person who has sat and successfully completed
a citizenship test (worked out in accordance with a determination under
section 23A of the Act) before commencement, but makes an application for
citizenship on or after commencement, will not be required to sit and
successfully complete another citizenship test in accordance with a new
determination made by the Minister under section 23A, in order to be
eligible to become an Australian citizen under subsection 21(2).