Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP TEST REVIEW AND OTHER
MEASURES) BILL 2009
REVISED SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Immigration and Citizenship,
Senator the Hon. Chris Evans)
AMENDMENTS TO THE AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP TEST REVIEW
AND OTHER MEASURES) BILL 2009
OUTLINE
The amendments to the Australian Citizenship Amendment (Citizenship Test
Review and Other Measures) Bill 2009 (the Bill) are to provide for a
reduced period of residence for certain persons in special circumstances to
allow such persons to be eligible to become an Australian citizen.
The amendments to the Bill amend the Australian Citizenship Act 2007 (the
Act) to:
- provide in a new Schedule 2 to the Bill for a special residence
requirement for:
o persons seeking to engage in activities that are of benefit
to Australia ; and
o certain persons engaged in particular kinds of work requiring
regular travel outside Australia;
- provide for the current "residence requirement" in section 22 of
the Act to be defined as the "general residence requirement" to
distinguish between the "special residence requirement" and the
"general residence requirement";
- provide for certain ministerial discretions in relation to
administrative error and confinement in prison or psychiatric
institutions to apply in relation to the special residence
requirement; and
- provide that the Minister may approve a person becoming an
Australian citizen when the person is not present in Australia if
the person satisfies the special residence requirement.
The amendments to the Bill also make a consequential amendment to the
Australian Citizenship (Transitionals and Consequentials) Act 2007 (the
Transitionals and Consequentials Act) to omit "residence requirement" and
substitute "general residence requirement" in Item 5B of Schedule 3 to the
Transitionals and Consequentials Act.
FINANCIAL IMPACT STATEMENT
The financial impact of these amendments is low. Any consequential costs
will be met from within existing resources.
AMENDMENTS TO THE AUSTRALIAN CITIZENSHIP AMENDMENT (CITIZENSHIP TEST REVIEW
AND OTHER MEASURES) BILL 2009
NOTES ON AMENDMENTS
Amendment (1) - Clause 2, page 2 (at the end of the table), add: [special
residence requirement]
1. This amendment adds item 3 in Column 1 of the table in subclause 2(1) of
the Bill that sets out the commencement provisions of the Bill.
2. New item 3 provides that Schedule 2 to the Bill commences on the day
this Act receives the Royal Assent.
Amendment (2) - Schedule 1, heading, page 3 (line 1) [consequential
amendment]
3. This amendment adds "relating to citizenship test review etc." at the
end of the heading to Schedule 1 of the Bill.
4. This amendment is consequential to the amendments below to insert a new
Schedule 2 to the Bill.
Amendment (3) - Page 5 (after line 27), at the end of the Bill, add:
[special residence requirement]
5. This amendment adds Schedule 2 - Amendments relating to special
residence requirement at the end of the Bill.
6. This amendment is to amend the Bill to provide for a new special
residence requirement for certain persons.
SCHEDULE 2 - Amendments relating to special residence requirement
Australian Citizenship Act 2007
Item 1 - Paragraph 21(2)(c)
7. This item omits "residence requirement (see section 22)" from paragraph
21(2)(c) of Subdivision B of Division 2 of Part 2 of the Act and
substitutes "general residence requirement (see section 22) or the
special residence requirement (see section 22A or 22B)".
8. Paragraph 21(2)(c) provides that a person is eligible to become an
Australian citizen if the Minister is satisfied that the person satisfies
the residence requirement (see section 22), or has completed relevant
defence service (see section 23), at the time the person made the
application.
9. The purpose of this amendment is to include the special residence
requirement to ensure applicants who meet the special residence
requirement are eligible for Australian citizenship under section 21 of
the Act.
Item 2 - Paragraph 21(3)(c)
10. This item omits "residence requirement (see section 22)" from paragraph
21(3)(c) of Subdivision B of Division 2 of Part 2 of the Act and
substitutes "general residence requirement (see section 22) or the
special residence requirement (see section 22A or 22B)".
11. Paragraph 21(3)(c) provides that a person is eligible to become an
Australian citizen if the Minister is satisfied that the person satisfies
the residence requirement (see section 22), or has completed relevant
defence service (see section 23), at the time the person made the
application.
12. The purpose of this amendment is to include the special residence
requirement to ensure applicants who meet the special residence
requirement are eligible for Australian citizenship under section 21 of
the Act.
Item 3 - Paragraph 21(4)(d)
13. This item omits "residence requirement (see section 22)" from paragraph
21(4)(d) of Subdivision B of Division 2 of Part 2 of the Act and
substitutes "general residence requirement (see section 22) or the
special residence requirement (see section 22A or 22B)".
14. Paragraph 21(4)(d) provides that a person is eligible to become an
Australian citizen if the Minister is satisfied that the person satisfies
the residence requirement (see section 22), or has completed relevant
defence service (see section 23), at the time the person made the
application.
15. The purpose of this amendment is to include the special residence
requirement to ensure applicants who meet the special residence
requirement are eligible for Australian citizenship under section 21 of
the Act.
Item 4 - Subsection 22(1)
16. This item omits "residence requirement" from subsection 22(1) of
Subdivision B of Division 2 of Part 2 of the Act and substitutes "general
residence requirement".
17. This item contains a note which provides that the heading to section 22
is replaced by the heading "General residence requirement".
18. Subsection 22(1) of the Act provides that subject to this section, for
the purposes of section 21 a person satisfies the residence requirement
if:
. the person was present in Australia for the period of 4 years
immediately before the day the person made the application; and
. the person was not present in Australia as an unlawful non-citizen at
any time during that 4 year period; and
. the person was present in Australia as a permanent resident for the
period of 12 months immediately before the day the person made the
application.
19. This amendment is consequential to the amendments made by item 5. The
purpose of this amendment is to change the reference in subsection 22(1)
of the Act from "residence requirement" to "general residence
requirement" to ensure that "special residence requirement" provided for
in item 5 below is a distinct term.
Item 5 - After section 22
20. This item inserts new section 22A (Special residence requirement-
persons engaging in activities that are of benefit to Australia) after
section 22 of Subdivision B of Division 2 of Part 2 of the Act.
21. The purpose of new section 22A is to provide that an applicant
satisfies the special residence requirement if the applicant is seeking
to engage in an activity specified in a legislative instrument; the
applicant's engagement in that activity would be of benefit to Australia;
the applicant needs to be an Australian citizen in order to engage in
that activity; and in order for the applicant to engage in that activity,
there is insufficient time for the applicant to satisfy the general
residence requirement in section 22 of the Act.
22. New subsection 22A(1) provides that subject to this section, for the
purposes of section 21 a person (the applicant) satisfies the special
residence requirement if:
. the applicant is seeking to engage in an activity under new
subsection 22C(1); the applicant's engagement in that activity would
be of benefit to Australia; the applicant needs to be an Australian
citizen in order to engage in that activity; and in order for the
applicant to engage in that activity, there is insufficient time for
the applicant to satisfy the general residence requirement (see
section 22); and
. the head of an organisation specified under new subsection 22C(2),
or a person whom the Minister is satisfied holds a senior position
in that organisation, has given the Minister a notice in writing
stating that the applicant has a reasonable prospect of being
engaged in that activity; and
. the applicant was present in Australia for a total of at least 180
days during the period of 2 years immediately before the day the
applicant made the application; and
. the applicant was present in Australia for a total of at least 90
days during the period of 12 months immediately before the day the
applicant made the application; and
. the applicant was ordinarily resident in Australia throughout the
period of 2 years immediately before the day the applicant made the
application; and
. the applicant was a permanent resident for the period of 2 years
immediately before the day the applicant made the application; and
. the applicant was not present in Australia as an unlawful non-
citizen at any time during the period of 2 years immediately before
the day the applicant made the application.
23. This item also inserts a heading after new subsection 22A(1)
Confinement in prison or psychiatric institution.
24. New subsection 22A(2) provides that subject to new subsection 22A(3),
the applicant is taken not to satisfy new paragraph 22A(1)(c) if, at any
time during the 2 year period immediately before the day the applicant
made the application, as mentioned in that paragraph, the applicant was
confined in a prison; or confined in a psychiatric institution by order
of a court made in connection with proceedings for an offence against an
Australian law in relation to the applicant.
25. New subsection 22A(3) provides that the Minister may decide that new
subsection 22A(2) does not apply in relation to the applicant if, taking
into account the circumstances that resulted in the applicant's
confinement, the Minister is satisfied that it would be unreasonable for
that subsection to apply in relation to the applicant.
26. Additionally, this item inserts a heading after new subsection 22A(3)
Ministerial discretion - administrative error.
27. New subsection 22A(4) provides that for the purposes of new paragraph
22A(1)(f), the Minister may treat a period as one in which the applicant
was a permanent resident if the Minister considers that, because of an
administrative error, the applicant was not a permanent resident during
that period. New paragraph 22A(1)(f) requires the applicant to be a
permanent resident for the period of 2 years immediately before the day
the applicant made the application.
28. New subsection 22A(5) provides that for the purposes of new
paragraph 22A(1)(g), the Minister may treat a period as one in which the
applicant was not present in Australia as an unlawful non-citizen if the
Minister considers the applicant was present in Australia during that
period but, because of an administrative error, was an unlawful non-
citizen during that period. New paragraph 22A(1)(g) requires that the
applicant was not present in Australia as an unlawful non-citizen at any
time during the period of 2 years immediately before the day the
applicant made the application.
29. This item also inserts new section 22B (Special residence requirement-
persons engaged in particular kinds of work requiring regular travel
outside Australia) after new section 22A of Subdivision B of Division 2
of Part 2 of the Act.
30. The purpose of new section 22B is to provide that persons engaged in
particular kinds of work requiring regular travel outside Australia may
be eligible to satisfy the special residence requirement in this new
section of the Act. This provision enables persons who would not
otherwise meet the general residence requirement in section 22 of the Act
because of their work to be eligible for Australian citizenship.
31. New subsection 22B(1) provides that subject to this section, for the
purposes of section 21 a person satisfies the special residence
requirement if:
. at the time the person made the application, the person is
engaged in work of a kind specified under new subsection 22C(3)
that requires the person to regularly travel outside Australia;
and
. the person was engaged in that kind of work for a total of at
least 2 years during the period of 4 years immediately before
the day the person made the application; and
. for the whole or part of that 4 year period when the person was
engaged in that kind of work, the person regularly travelled
outside Australia because of that work; and
. the person was present in Australia for a total of at least 480
days during the period of 4 years immediately before the day
the person made the application; and
. the person was present in Australia for a total of at least 120
days during the period of 12 months immediately before the day
the person made the application; and
. the person was ordinarily resident in Australia throughout the
period of 4 years immediately before the day the person made
the application; and
. the person was a permanent resident for the period of 12 months
immediately before the day the person made the application; and
. the person was not present in Australia as an unlawful non-
citizen at any time during the period of 4 years immediately
before the day the person made the application.
32. This item also inserts a heading after new subsection 22B(1)
Confinement in prison or psychiatric institution.
33. New subsection 22B(2) provides that subject to new subsection 22B(3),
the person is taken not to satisfy new paragraph 22B(1)(c) if, at any
time during the 4 year period immediately before the day the applicant
made the application, as mentioned in that paragraph, the person was
confined in a prison; or confined in a psychiatric institution by order
of a court made in connection with proceedings for an offence against an
Australian law in relation to the person.
34. New subsection 22B(3) provides that the Minister may decide that new
subsection 22B(2) does not apply in relation to the person if, taking
into account the circumstances that resulted in the person's confinement,
the Minister is satisfied that it would be unreasonable for that
subsection to apply in relation to the person.
35. Additionally, this item inserts a heading after new subsection 22B(3)
Ministerial discretion - administrative error.
36. New subsection 22B(4) provides that for the purposes of new paragraph
22B(1)(f), the Minister may treat a period as one in which the person was
a permanent resident if the Minister considers that, because of an
administrative error, the person was not a permanent resident during that
period. New paragraph 22B(1)(f) requires the person to be a permanent
resident for the period of 12 months immediately before the day that the
person made the application.
37. New subsection 22B(5) provides that for the purposes of new paragraph
22B(1)(g), 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 the person was present in Australia during that period but,
because of an administrative error, was an unlawful non-citizen during
that period. New paragraph 22B(1)(g) requires that the person was not
present in Australia as an unlawful non-citizen at any time during the
period of 4 years immediately before the day the person made the
application.
38. This item inserts new section 22C (Special residence requirement-
legislative instruments) after new section 22B of Subdivision B of
Division 2 of Part 2 of the Act.
39. New section 22C provides for the Minister to make legislative
instruments for the purposes of new sections 22A and 22B.
40. New subsection 22C(1) provides that the Minister may, by legislative
instrument, specify activities for the purposes of new subparagraph
22A(1)(a)(i).
41. The purpose of this amendment is to enable the Minister to specify in a
legislative instrument the activities that an applicant may be seeking to
engage in to satisfy the special residence requirement in new section 22A
of the Act.
42. New subsection 22C(2) provides that the Minister may, by legislative
instrument, specify organisations for the purposes of new paragraph
22A(1)(b).
43. The purpose of this amendment is to enable the Minister to specify in a
legislative instrument the organisation(s) that can provide a notice in
writing that the applicant has a reasonable prospect of being engaged in
that activity in new subsection 22C(1) in order to satisfy the special
residence requirement in new section 22A of the Act.
44. New subsection 22C(3) provides that the Minister may, by legislative
instrument, specify kinds of work for the purposes of new paragraph
22B(1)(a).
45. The purpose of this amendment is to enable the Minister to specify in a
legislative instrument the kinds of work that a person must be engaged in
that require the person to regularly travel outside Australia because of
that work in order to satisfy the special residence requirement in new
section 22B of the Act.
Item 6 - After paragraph 24(5)(a)
46. This item inserts new paragraph 24(5)(aa) after paragraph 24(5)(a) of
Subdivision B of Division 2 of Part 2 of the Act.
47. New paragraph 24(5)(aa) provides that the Minister is satisfied that
the person did not satisfy the special residence requirement referred to
in new section 22A or 22B.
48. The purpose of this amendment is to provide that the Minister may
approve a person becoming an Australian citizenship when the person is
not present in Australia if the person satisfies the special residence
requirement as provided in new section 22A or 22B.
Australian Citizenship (Transitionals and Consequentials) Act 2007
Item 7 - Item 5B of Schedule 3
49. This item provides for an amendment to Item 5B of Schedule 3 to the
Transitionals and Consequentials Act. This amendment omits "residence
requirement" and substitutes "general residence requirement".
50. Item 5B provides transitional arrangements for applicants who are
permanent residents on commencement of the Act and are seeking to apply
for Australian citizenship by conferral.
51. This amendment is consequential to the amendments made to the Act by
Item 5 above.
Item 8 - Application
52. This item provides for the application of amendments made by this
Schedule.
53. The amendments made by Schedule 2 apply in relation to applications for
Australian citizenship made on or after the commencement of Schedule 2.
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