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A Bill for an Act relating to Australian citizenship
Administered by: DIMIA
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Registered 10 Nov 2005
Introduced HR 09 Nov 2005

2004-2005

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Australian Citizenship Bill 2005

 

No.      , 2005

 

(Citizenship and Multicultural Affairs)

 

 

 

A Bill for an Act relating to Australian citizenship

  

  

  


Contents

Part 1—Preliminary                                                                                                               3

1............ Short title............................................................................................ 3

2............ Commencement.................................................................................. 3

3............ Definitions.......................................................................................... 4

4............ Australian citizen................................................................................ 6

5............ Permanent resident............................................................................. 7

6............ Responsible parent............................................................................. 7

7............ Children born on ships or aircraft or after death of parent................. 8

8............ Children born as a result of artificial conception procedures............. 8

9............ Confinement in prison or psychiatric institution............................... 9

10.......... Personal identifiers............................................................................. 9

11.......... Operation of Act.............................................................................. 10

Part 2—Australian citizenship                                                                                        12

Division 1—Automatic acquisition of Australian citizenship                 12

12.......... Citizenship by birth......................................................................... 12

13.......... Citizenship by adoption................................................................... 12

14.......... Citizenship for abandoned children.................................................. 12

15.......... Citizenship by incorporation of Territory....................................... 13

Division 2—Acquisition of Australian citizenship by application        14

Subdivision A—Citizenship by descent                                                                 14

16.......... Application and eligibility for citizenship........................................ 14

17.......... Minister’s decision........................................................................... 15

18.......... Registration....................................................................................... 16

19.......... Day citizenship begins..................................................................... 16

Subdivision B—Citizenship by conferral                                                             16

20.......... Requirements for becoming a citizen................................................ 16

21.......... Application and eligibility for citizenship........................................ 16

22.......... Residence requirement...................................................................... 19

23.......... Relevant defence service................................................................... 22

24.......... Minister’s decision........................................................................... 22

25.......... Minister may cancel approval.......................................................... 25

26.......... Pledge of commitment must be made............................................... 26

27.......... How pledge of commitment is to be made....................................... 27

28.......... Day citizenship begins etc................................................................ 28

Subdivision C—Resuming citizenship                                                                  29

29.......... Application and eligibility for resuming citizenship........................ 29

30.......... Minister’s decision........................................................................... 30

31.......... Registration....................................................................................... 31

32.......... Day citizenship begins again etc....................................................... 31

Division 3—Cessation of Australian citizenship                                          32

33.......... Renunciation..................................................................................... 32

34.......... Revocation by Minister.................................................................... 33

35.......... Service in armed forces of enemy country........................................ 36

36.......... Children of responsible parents who cease to be citizens................ 36

Division 4—Evidence of Australian citizenship                                            38

37.......... Evidence of Australian citizenship................................................... 38

38.......... Surrender of evidentiary notice......................................................... 38

39.......... Altering evidentiary notice............................................................... 39

Division 5—Personal identifiers                                                                           40

Subdivision A—Obtaining personal identifiers                                                  40

40.......... Request for personal identifiers........................................................ 40

41.......... Provision of personal identifiers....................................................... 40

Subdivision B—Obligations relating to identifying information                     40

42.......... Accessing identifying information.................................................... 40

43.......... Disclosing identifying information................................................... 42

44.......... Unauthorised modification or impairment of identifying information 43

45.......... Destroying identifying information.................................................. 44

Part 3—Other matters                                                                                                        46

46.......... Application requirements................................................................. 46

47.......... Notification of decisions................................................................... 46

48.......... Computerised decision-making......................................................... 47

49.......... Evidence of whether computer program is functioning correctly..... 48

50.......... False statements or representations................................................. 49

51.......... Geographical jurisdiction for offences.............................................. 50

52.......... Review of decisions.......................................................................... 50

53.......... Delegation......................................................................................... 50

54.......... Regulations....................................................................................... 51

Schedule 1—Pledge of commitment as a citizen of the Commonwealth of Australia  52

1............ Form of pledge no. 1......................................................................... 52

2............ Form of pledge no. 2......................................................................... 52

 


A Bill for an Act relating to Australian citizenship

Preamble

                   The Parliament recognises that Australian citizenship represents formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

                   The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

                     (a)  by pledging loyalty to Australia and its people; and

                     (b)  by sharing their democratic beliefs; and

                     (c)  by respecting their rights and liberties; and

                     (d)  by upholding and obeying the laws of Australia.

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Australian Citizenship Act 2005.

2  Commencement

             (1)  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.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Sections 3 to 54

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

3.  Schedule 1

At the same time as the provisions covered by table item 2.

 

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Definitions

                   In this Act:

adverse security assessment has the meaning given by section 35 of the Australian Security Intelligence Organisation Act 1979.

artificial conception procedure includes:

                     (a)  artificial insemination; and

                     (b)  the implantation of an embryo in the body of a woman.

Australia, when used in a geographical sense, includes the external territories.

Australian citizen has the meaning given by section 4.

Australian law means a law of the Commonwealth, a State or a Territory.

child includes an adopted child, a step-child and an ex-nuptial child.

commencement day means the day on which sections 3 to 54 commence.

disclose, in relation to identifying information that is a personal identifier, includes provide access to the personal identifier.

foreign law means a law of a foreign country.

identifying information means the following:

                     (a)  any personal identifier;

                     (b)  any meaningful identifier derived from any personal identifier;

                     (c)  any record of a result of analysing any personal identifier or any meaningful identifier derived from any personal identifier;

                     (d)  any other information derived from:

                              (i)  any personal identifier; or

                             (ii)  any meaningful identifier derived from any personal identifier; or

                            (iii)  any record of a kind referred to in paragraph (c);

                            that could be used to discover a particular person’s identity or to get information about a particular person.

New Guinea:

                     (a)  has the same meaning as the Territory of New Guinea had in the Papua New Guinea Act 1949 immediately before 16 September 1975; and

                     (b)  in relation to any time before 4 June 1969—includes a reference to the Island of Nauru.

old Act means the Australian Citizenship Act 1948 as in force at any time before the commencement day.

ordinarily resident: a person is taken to be ordinarily resident in a country if and only if:

                     (a)  he or she has his or her home in that country; or

                     (b)  that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.

However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.

Papua has the same meaning as the Territory of Papua had in the Papua New Guinea Act 1949 immediately before 16 September 1975.

permanent resident has the meaning given by section 5.

permanent visa has the same meaning as in the Migration Act 1958.

personal identifier has the meaning given by section 10.

prison includes any custodial institution at which a person convicted of an offence may be required to serve the whole or a part of any sentence imposed upon the person because of that conviction.

psychiatric institution includes a psychiatric section of a hospital.

qualified security assessment has the meaning given by section 35 of the Australian Security Intelligence Organisation Act 1979.

responsible parent has the meaning given by section 6.

serious prison sentence means a sentence of imprisonment for a period of at least 12 months.

serious repeat offender: a person is a serious repeat offender in relation to a serious prison sentence if the sentence was imposed on the person for an offence committed by the person at a time after the person ceased to be confined in prison because of the imposition of another serious prison sentence.

special category visa has the same meaning as in the Migration Act 1958.

special purpose visa has the same meaning as in the Migration Act 1958.

unlawful non-citizen has the same meaning as in the Migration Act 1958.

visa has the same meaning as in the Migration Act 1958.

4  Australian citizen

             (1)  For the purposes of this Act, Australian citizen means a person who is an Australian citizen under Division 1 or 2 of Part 2.

Note:          A person who is an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day is taken to be an Australian citizen under this Act: see item 2 of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2005.

Citizenship under the old Act

             (2)  If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.

5  Permanent resident

             (1)  For the purposes of this Act, a person is a permanent resident at a particular time if and only if:

                     (a)  the person is present in Australia at that time and holds a permanent visa at that time; or

                     (b)  both:

                              (i)  the person is not present in Australia at that time and holds a permanent visa at that time; and

                             (ii)  the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or

                     (c)  the person is covered by a determination in force under subsection (2) at that time.

             (2)  The Minister may, by legislative instrument, determine that:

                     (a)  persons who hold a special category visa or a special purpose visa; or

                     (b)  persons who have held a special category visa; or

                     (c)  persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands;

and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.

Permanent resident under the old Act

             (3)  If, under this Act, it is necessary to work out if a person was a permanent resident at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.

6  Responsible parent

             (1)  For the purposes of this Act, a person is a responsible parent in relation to a child if and only if:

                     (a)  the person is a parent of the child except where, because of orders made under the Family Law Act 1975, the person no longer has any parental responsibility for the child; or

                     (b)  the person (whether or not a parent of the child) has a residence order in relation to the child; or

                     (c)  the person (whether or not a parent of the child) has a specific issues order in relation to the child under which the person is responsible for the child’s long-term or day-to-day care, welfare and development; or

                     (d)  the person (whether or not a parent of the child) has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise.

             (2)  Expressions used in paragraphs (1)(a), (b) and (c) have the same meaning as in the Family Law Act 1975.

7  Children born on ships or aircraft or after death of parent

Persons born on ships or aircraft

             (1)  For the purposes of this Act:

                     (a)  a person born on a ship or aircraft registered in Australia or a foreign country is taken to have been born at the place at which the ship or aircraft is registered; and

                     (b)  a person born on a ship or aircraft not registered in Australia or a foreign country and belonging to the government of a country is taken to have been born in that country.

Persons born after death of parent

             (2)  For the purposes of this Act, the status of a parent of a person at the time of the person’s birth is, for a parent who died before the birth, taken to be the status of the parent when the parent died.

8  Children born as a result of artificial conception procedures

             (1)  If:

                     (a)  a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and

                     (b)  the procedure was carried out with the man’s consent; and

                     (c)  the child is not biologically the child of the man;

then, for the purposes of this Act, the child is taken to be a child of the man and of no other man.

             (2)  Subsection (1) applies in relation to a purported marriage that is void as if:

                     (a)  the purported marriage were a marriage; and

                     (b)  the parties to the purported marriage were husband and wife;

unless, at the time of the carrying out of the artificial conception procedure, neither party to the purported marriage believed on reasonable grounds that the purported marriage was valid.

9  Confinement in prison or psychiatric institution

Confinement in prison

             (1)  For the purposes of this Act, the period during which a person is confined to a prison includes a period:

                     (a)  during which the person is an escapee from the prison; or

                     (b)  during which the person is undergoing a sentence of periodic detention in the prison.

             (2)  For the purposes of this Act, the period during which a person is confined to a prison does not include a period during which the person has been so confined by reason only of the person serving a sentence relating to a conviction that is later quashed.

Confinement in psychiatric institution

             (3)  For the purposes of this Act, the period during which a person is confined in a psychiatric institution by order of a court includes a period during which the person is an escapee from the institution.

10  Personal identifiers

             (1)  For the purposes of this Act, a personal identifier is any of the following (including any of the following in digital form):

                     (a)  fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);

                     (b)  a measurement of a person’s height and weight;

                     (c)  a photograph or other image of a person’s face and shoulders;

                     (d)  an iris scan;

                     (e)  a person’s signature;

                      (f)  any other identifier prescribed by the regulations (except an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914).

             (2)  Before the Governor-General makes regulations for the purposes of paragraph (1)(f) prescribing an identifier, the Minister must be satisfied that:

                     (a)  obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and

                     (b)  the identifier is an image of, or a measurement or recording of, an external part of the body; and

                     (c)  obtaining the identifier will promote one or more of the following purposes:

                              (i)  assisting in the identification of, and to authenticate the identity of, a person making an application under Part 2;

                             (ii)  combating document and identity fraud in citizenship matters;

                            (iii)  complementing anti-people smuggling measures.

11  Operation of Act

External Territories

             (1)  This Act extends to the external Territories.

Application outside Australia

             (2)  This Act extends unless the contrary intention appears:

                     (a)  to acts, omissions, matters and things outside Australia; and

                     (b)  to all persons, irrespective of their nationality or citizenship.

State and Territory laws

             (3)  It is the intention of the Parliament that this Act apply to the exclusion of any provisions of a law of a State or Territory that provide for Australian citizenship (whether the law was made before or after the commencement day).


 

Part 2Australian citizenship

Division 1Automatic acquisition of Australian citizenship

12  Citizenship by birth

             (1)  A person born in Australia is an Australian citizen if and only if:

                     (a)  a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

                     (b)  the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

Enemy occupation

             (2)  However, a person is not an Australian citizen under this section if, at the time the person is born:

                     (a)  a parent of the person is an enemy alien; and

                     (b)  the place of the birth is under occupation by the enemy;

unless, at that time, the other parent of the person:

                     (c)  is an Australian citizen or a permanent resident; and

                     (d)  is not an enemy alien.

13  Citizenship by adoption

                   A person is an Australian citizen if the person is:

                     (a)  adopted under a law of a State or Territory; and

                     (b)  adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and

                     (c)  present in Australia as a permanent resident at that time.

14  Citizenship for abandoned children

                   A person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved.

15  Citizenship by incorporation of Territory

             (1)  A person is an Australian citizen if:

                     (a)  any territory becomes a part of Australia; and

                     (b)  the person is included in a class of persons specified in a determination under this section.

Determination

             (2)  The Minister may, by legislative instrument, determine that specified classes of persons are Australian citizens from a specified day because of their connection with that territory.

Day citizenship begins

             (3)  The person becomes an Australian citizen on that day.

When instrument takes effect

             (4)  Despite subsection 12(2) of the Legislative Instruments Act 2003, the instrument may be expressed to take effect before the date it is registered under that Act.


 

Division 2Acquisition of Australian citizenship by application

Subdivision ACitizenship by descent

16  Application and eligibility for citizenship

             (1)  A person may make an application to the Minister to become an Australian citizen.

Note:          Section 46 sets out application requirements (which may include the payment of a fee).

Persons born outside Australia on or after 26 January 1949

             (2)  A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

                     (a)  a parent of the person was an Australian citizen at the time of the birth; and

                     (b)  if the parent was an Australian citizen under this Subdivision, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

                              (i)  the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

                             (ii)  the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

                     (c)  if the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

Persons born outside Australia or New Guinea before 26 January 1949

             (3)  A person born outside Australia or New Guinea before 26 January 1949 is eligible to become an Australian citizen if:

                     (a)  a parent of the person became an Australian citizen on 26 January 1949; and

                     (b)  the parent was born in Australia or New Guinea or was naturalised in Australia before the person’s birth; and

                     (c)  the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

17  Minister’s decision

             (1)  If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

             (2)  Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to be so approved.

Identity

             (3)  The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

Note:          Division 5 contains the identity provisions.

Risk to security

             (4)  The Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment or a qualified security assessment in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

Cessation of citizenship

             (5)  If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

18  Registration

                   If the Minister approves the person becoming an Australian citizen, the Minister must register the person in the manner prescribed by the regulations.

19  Day citizenship begins

             (1)  A person becomes an Australian citizen under this Subdivision on the day on which the Minister approves the person becoming an Australian citizen.

             (2)  However, a person does not become an Australian citizen under this Subdivision unless:

                     (a)  if the person was born on or after 26 January 1949—a parent of the person was an Australian citizen at the time of the person’s birth; or

                     (b)  if the person was born before 26 January 1949—a parent of the person became an Australian citizen on 26 January 1949.

Subdivision BCitizenship by conferral

20  Requirements for becoming a citizen

                   A person becomes an Australian citizen under this Subdivision if:

                     (a)  the Minister approves the person becoming an Australian citizen; and

                     (b)  if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.

Note:          Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen. Sections 26 and 27 deal with the making of a pledge of commitment.

21  Application and eligibility for citizenship

             (1)  A person may make an application to the Minister to become an Australian citizen.

Note 1:       Subsections (2) to (8) deal with eligibility.

Note 2:       Section 46 sets out application requirements (which may include the payment of a fee).

General eligibility

             (2)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

                     (a)  is aged 18 or over at the time the person made the application; and

                     (b)  is a permanent resident at that time; and

                     (c)  understands the nature of the application at that time; and

                     (d)  satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at that time; and

                     (e)  possesses a basic knowledge of the English language at the time of the Minister’s decision on the application; and

                      (f)  has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of the Minister’s decision on the application; and

                     (g)  is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

                     (h)  is of good character at the time of the Minister’s decision on the application.

Permanent physical or mental incapacity

             (3)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

                     (a)  is aged 18 or over at the time the person made the application; and

                     (b)  is a permanent resident at that time; and

                     (c)  satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at that time; and

                     (d)  has a permanent physical or mental incapacity at that time that means the person is not capable of understanding the nature of the application at that time; and

                     (e)  is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

                      (f)  is of good character at the time of the Minister’s decision on the application.

Person aged 60 or over or has hearing, speech or sight impairment

             (4)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

                     (a)  is:

                              (i)  aged 60 or over at the time the person made the application; or

                             (ii)  aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; and

                     (b)  is a permanent resident at that time; and

                     (c)  understands the nature of the application at that time; and

                     (d)  satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at that time; and

                     (e)  is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

                      (f)  is of good character at the time of the Minister’s decision on the application.

Person aged under 18

             (5)  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.

Person born to former Australian citizen

             (6)  A person is eligible to become an Australian citizen if the Minister is satisfied that:

                     (a)  the person was born outside Australia; and

                     (b)  a parent of the person was not an Australian citizen at the time of the person’s birth; and

                     (c)  the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and

                     (d)  the person is of good character at the time of the Minister’s decision on the application.

Person born in Papua

             (7)  A person is eligible to become an Australian citizen if the Minister is satisfied that:

                     (a)  the person was born in Papua before 16 September 1975; and

                     (b)  a parent of the person was born in Australia (within the meaning of this Act at the time the person made the application); and

                     (c)  the parent was an Australian citizen at the time of the person’s birth; and

                     (d)  the person is of good character at the time of the Minister’s decision on the application.

Statelessness

             (8)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

                     (a)  was born in Australia; and

                     (b)  is not, at the time the person made the application, a national or citizen of any country and has never been such a national or citizen; and

                     (c)  does not, at the time the person made the application, have reasonable prospects of acquiring the nationality or citizenship of a foreign country and has never had such reasonable prospects.

22  Residence requirement

             (1)  For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:

                     (a)  a total period of at least 1 year in the period of 2 years before the day the person made the application; and

                     (b)  a total period of at least 3 years in the period of 5 years before that day.

Partial exemption—person born in Australia or former Australian citizen

             (2)  Paragraph (1)(b) does not apply if the person:

                     (a)  was born in Australia; or

                     (b)  was an Australian citizen at any time before the person made the application.

Confinement in prison or psychiatric institution

             (3)  The Minister must not take into account any period during which the person has been:

                     (a)  confined in a prison; or

                     (b)  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.

Ministerial discretion—longer period than 5 year period

             (4)  The Minister may take into account a longer period than the period of 5 years mentioned in paragraph (1)(b).

Ministerial discretion—administrative error

             (5)  The Minister may treat a period 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.

Ministerial discretion—person in Australia would suffer significant hardship or disadvantage

             (6)  The Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

                     (a)  the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and

                     (b)  the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

Ministerial discretion—person in Australia engaged in activities beneficial to Australia

             (7)  The Minister may treat a period not exceeding 12 months as one in which the person was present in Australia as a permanent resident if:

                     (a)  the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and

                     (b)  the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen).

Ministerial discretion—person outside Australia engaged in activities beneficial to Australia

             (8)  The Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

                     (a)  the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and

                     (b)  the person was not present in Australia during that period but was a permanent resident during that period; and

                     (c)  either:

                              (i)  the person has already been present in Australia as a permanent resident for a total period of at least 1 year; or

                             (ii)  the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

Ministerial discretion—spouse, widow or widower of Australian citizen

             (9)  If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

                     (a)  the person was a spouse of that Australian citizen during that period; and

                     (b)  the person was not present in Australia during that period; and

                     (c)  the person was a permanent resident during that period; and

                     (d)  the Minister is satisfied that the person had a close and continuing association with Australia during that period.

           (10)  For the purposes of subsection (9), spouse, of an Australian citizen, includes a person granted a permanent visa as a de facto spouse of that citizen.

23  Relevant defence service

                   For the purposes of section 21, a person has completed relevant defence service if the person:

                     (a)  has completed:

                              (i)  at least 3 months service in the permanent forces of the Commonwealth; or

                             (ii)  at least 6 months service in the Naval Reserve, the Army Reserve or Air Force Reserve; or

                     (b)  was discharged from that service as medically unfit for that service and who became so unfit because of that service.

24  Minister’s decision

             (1)  If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

Note:          The Minister may cancel an approval: see section 25.

             (2)  The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to be so approved.

Identity

             (3)  The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

Note:          Division 5 contains the identity provisions.

Risk to security

             (4)  The Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment or a qualified security assessment in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

Person not present in Australia

             (5)  If:

                     (a)  the person is covered by subsection 21(2), (3) or (4); and

                     (b)  the Minister did not apply subsection 22(9) in relation to the person;

the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia unless the Minister considers the person is engaging in activities at that time that are beneficial to Australia.

Offences

             (6)  The Minister must not approve the person becoming an Australian citizen at a time:

                     (a)  when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or

                     (b)  when the person is confined to a prison in Australia; or

                     (c)  during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence; or

                     (d)  if the person is a serious repeat offender in relation to a serious prison sentence—during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or

                     (e)  if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence—during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or

                      (f)  if the person:

                              (i)  has been released by a court from serving the whole or a part of a sentence of imprisonment; and

                             (ii)  has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

                            during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

                     (g)  if, in respect of proceedings for an offence against an Australian law in relation to the person:

                              (i)  a court does not impose a sentence of imprisonment on the person; and

                             (ii)  the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

                            during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

                     (h)  during any period during which the person is 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.

Cessation of citizenship

             (7)  If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

Statelessness

             (8)  However, subsections (6) and (7) do not apply to a person covered by subsection 21(8) (about statelessness).

25  Minister may cancel approval

             (1)  The Minister may, by writing, cancel an approval given to a person under section 24 if:

                     (a)  the person has not become an Australian citizen under section 28; and

                     (b)  either of the following 2 situations apply.

Eligibility criteria not met

             (2)  The first situation applies if:

                     (a)  the person is covered by subsection 21(2), (3) or (4); and

                     (b)  the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

                              (i)  not a permanent resident; or

                             (ii)  not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

                            (iii)  not of good character.

Failure to make pledge of commitment

             (3)  The second situation applies if:

                     (a)  the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

                     (b)  the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

Cancellation of child’s approval

             (4)  If:

                     (a)  a child aged under 16 makes an application under section 21 at a particular time; and

                     (b)  1 or more responsible parents of the child make applications under section 21 at that time; and

                     (c)  the Minister decides under section 24 to approve the child and 1 or more of the responsible parents becoming Australian citizens; and

                     (d)  the Minister cancels the approval given to each responsible parent;

the Minister must, by writing, cancel the approval given to the child.

Effect of cancellation

             (5)  If the Minister cancels an approval given to a person, the approval is taken never to have been given.

Note:          A person cannot become an Australian citizen under this Subdivision unless the Minister approves the person becoming an Australian citizen. This subsection has the effect that the person will need to make another application if the person wants to become an Australian citizen.

26  Pledge of commitment must be made

             (1)  A person must make a pledge of commitment to become an Australian citizen unless the person:

                     (a)  is aged under 16 at the time the person made the application to become an Australian citizen; or

                     (b)  has a permanent physical or mental incapacity at the time the person made the application to become an Australian citizen that means the person is not capable of understanding the nature of the application at that time; or

                     (c)  is covered by subsection 21(6), (7) or (8).

Note:          See section 27 for how the pledge is to be made.

             (2)  A person must not make a pledge of commitment before the Minister approves the person’s application to become an Australian citizen. A pledge of commitment made by the person before that time is of no effect.

Delayed making of pledge

             (3)  If the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:

                     (a)  a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or

                     (b)  the person has been or may be charged with an offence under an Australian law.

             (4)  The Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.

             (5)  The Minister may, by writing, revoke a determination.

             (6)  If a determination is in force in relation to a person, the person must not make a pledge of commitment before the end of the period specified in the determination. A pledge of commitment made by the person before that time is of no effect.

27  How pledge of commitment is to be made

Form of pledge

             (1)  A pledge of commitment must be made in accordance with either of the forms set out in Schedule 1.

Prescribed arrangements

             (2)  A pledge of commitment must be made in accordance with the arrangements prescribed by the regulations.

Note:          The regulations may provide for a pledge of commitment to be made in public.

Persons who may receive pledge

             (3)  A pledge of commitment must be made before:

                     (a)  the Minister; or

                     (b)  a person authorised under subsection (4); or

                     (c)  a person who is included in a class of persons authorised under subsection (5).

             (4)  The Minister may, by writing, authorise a person for the purposes of paragraph (3)(b).

             (5)  The Minister may, by legislative instrument, authorise a class of persons for the purposes of paragraph (3)(c).

28  Day citizenship begins etc.

Persons required to make pledge of commitment

             (1)  A person required to make a pledge of commitment becomes an Australian citizen under this Subdivision on the day on which the person makes the pledge.

Persons not required to make pledge of commitment

             (2)  Subject to subsection (3), a person not required to make a pledge of commitment becomes an Australian citizen under this Subdivision on the day on which the Minister approves the person becoming an Australian citizen.

Applications made at the same time by child and responsible parents

             (3)  Subsection (2) does not apply to a child aged under 16 at the time the child made the application to become an Australian citizen if:

                     (a)  1 or more responsible parents of the child made applications under section 21 at that time; and

                     (b)  the Minister decided under section 24 to approve the child and 1 or more of the responsible parents becoming Australian citizens.

             (4)  If 1 or more of the responsible parents become Australian citizens under this section, the child becomes an Australian citizen on the first day on which a responsible parent becomes an Australian citizen.

Subdivision CResuming citizenship

29  Application and eligibility for resuming citizenship

             (1)  A person may make an application to the Minister to become an Australian citizen again.

Note 1:       Section 46 sets out application requirements (which may include the payment of a fee).

Note 2:       The person may also apply to become an Australian citizen again under Subdivision A or B.

Cessation under this Act

             (2)  A person is eligible to become an Australian citizen again under this Subdivision if:

                     (a)  the person ceased to be an Australian citizen under:

                              (i)  section 33 (about renunciation) in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

                             (ii)  section 36 (about children); and

                     (b)  if the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

Note 1:       See also section 32 (which is about persons resuming their former citizenship status).

Note 2:       A person who ceases to be an Australian citizen under section 34 or 35 may apply to become an Australian citizen again under Subdivision A or B.

Cessation under old Act

             (3)  A person is eligible to become an Australian citizen again under this Subdivision if:

                     (a)  the person ceased to be an Australian citizen under:

                              (i)  section 17 (about dual citizenship) of the old Act; or

                             (ii)  section 18 (about renunciation) of the old Act in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

                            (iii)  section 20 (about residence outside Australia) of the old Act; or

                            (iv)  section 23 (about children) of the old Act; and

                     (b)  if the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

30  Minister’s decision

             (1)  If a person makes an application under section 29, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen again.

             (2)  The Minister may refuse to approve the person becoming an Australian citizen again despite the person being eligible to be so approved.

Identity

             (3)  The Minister must not approve the person becoming an Australian citizen again unless the Minister is satisfied of the identity of the person.

Note:          Division 5 contains the identity provisions.

Risk to security

             (4)  The Minister must not approve the person becoming an Australian citizen again at a time when an adverse security assessment or a qualified security assessment in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

31  Registration

                   If the Minister approves the person becoming an Australian citizen again, the Minister must register the person in the manner prescribed by the regulations.

32  Day citizenship begins again etc.

             (1)  A person becomes an Australian citizen again on the day on which the Minister approves the person becoming an Australian citizen again.

Same kind of citizenship—former citizen under this Act

             (2)  If the person, before ceasing to be an Australian citizen, was an Australian citizen under Subdivision A or B, the person becomes an Australian citizen again under that Subdivision.

Note:          One of the effects of this subsection is that the Minister is able to revoke the person’s citizenship: see section 34.

Same kind of citizenship—former citizen under old Act

             (3)  If the person, before ceasing to be an Australian citizen, was an Australian citizen under the provision set out in column 2 of the following table, the person becomes an Australian citizen again under the provision set out in column 3 of the table.

 

Same kind of citizenship

Column 1
Item

Column 2
Provision under which person was a citizen

Column 3
Provision under which person becomes a citizen again

1

Section 10B, 10C or 11 of the old Act

Subdivision A of this Division

2

Division 2 of Part III of the old Act

Subdivision B of this Division

Note:          One of the effects of this subsection is that the Minister is able to revoke the person’s citizenship: see section 34.


 

Division 3Cessation of Australian citizenship

33  Renunciation

             (1)  A person may make an application to the Minister to renounce the person’s Australian citizenship.

Note:          Section 46 sets out application requirements (which may include the payment of a fee).

Minister’s decision

             (2)  The Minister must, by writing, approve or refuse to approve the person renouncing his or her Australian citizenship.

             (3)  Subject to this section, the Minister must approve the person renouncing his or her Australian citizenship if the Minister is satisfied that:

                     (a)  the person is aged 18 or over, and is a national or citizen of a foreign country, at the time the person made the application; or

                     (b)  the person was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country because the person is an Australian citizen.

             (4)  The Minister must not approve the person renouncing his or her Australian citizenship unless the Minister is satisfied of the identity of the person.

Note:          Division 5 contains the identity provisions.

             (5)  The Minister may refuse to approve the person renouncing his or her Australian citizenship if the person:

                     (a)  is a national or citizen of a foreign country at the time the person made the application; and

                     (b)  made the application during a war in which Australia is engaged.

             (6)  The Minister must not approve the person renouncing his or her Australian citizenship if the Minister considers that it would not be in the interests of Australia to do so.

             (7)  The Minister must not approve the person renouncing his or her Australian citizenship unless the Minister is satisfied that the person:

                     (a)  is a national or citizen of a foreign country immediately before the Minister’s decision on the application; or

                     (b)  will, if the Minister approves the application, become a national or citizen of a foreign country immediately after the approval.

Time citizenship ceases

             (8)  If the Minister approves a person renouncing his or her Australian citizenship, the person ceases to be an Australian citizen at the time of the approval.

Note:          A child of the person may also cease to be an Australian citizen: see section 36.

34  Revocation by Minister

Citizenship by descent

             (1)  The Minister may, by writing, revoke a person’s Australian citizenship if:

                     (a)  the person is an Australian citizen under Subdivision A of Division 2 (including because of the operation of section 32); and

                     (b)  either of the following apply:

                              (i)  the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;

                             (ii)  the person obtained the Minister’s approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and

                     (c)  the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

Citizenship by conferral

             (2)  The Minister may, by writing, revoke a person’s Australian citizenship if:

                     (a)  the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and

                     (b)  any of the following apply:

                              (i)  the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;

                             (ii)  the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);

                            (iii)  the person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);

                            (iv)  the person obtained the Minister’s approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and

                     (c)  the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

             (3)  However, the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:

                     (a)  the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5); and

                     (b)  the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.

Time citizenship ceases

             (4)  If the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.

Note:          A child of the person may also cease to be an Australian citizen: see section 36.

Serious offence

             (5)  For the purposes of this section, a person has been convicted of a serious offence if:

                     (a)  the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and

                     (b)  the person committed the offence at any time before the person became an Australian citizen.

Migration-related fraud

             (6)  For the purposes of this section, a person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud if and only if:

                     (a)  at any time, the person was convicted of an offence against:

                              (i)  section 234, 236, 243 or 244 of the Migration Act 1958; or

                             (ii)  section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code;

                            that the person committed at any time before the Minister gave the approval; and

                     (b)  the act or omission that constituted the offence was connected with the person’s entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.

             (7)  Subsection (6) does not apply to a person in respect of an offence if the Minister is satisfied that the act or omission that constituted that offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident.

Third-party fraud

             (8)  For the purposes of this section, a person (the applicant) obtained the Minister’s approval to become an Australian citizen as a result of third-party fraud if and only if:

                     (a)  at any time, another person was convicted of an offence against section 50 of this Act, or section 134.1, 135.2, 135.4, 136.1, 137.1, 137.2, 139.1, 141.1, 142.1, 142.2, 144.1, 145.1, 145.2, 145.4, 145.5 or 149.1 of the Criminal Code, that the other person committed at any time before the Minister gave the approval; and

                     (b)  the act or omission that constituted the offence was connected with the Minister approving the applicant becoming an Australian citizen.

Charge proved but no conviction

             (9)  A reference in this section to a conviction of an offence:

                     (a)  in relation to a law of the Commonwealth—includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the offence; and

                     (b)  in relation to a law of a State or Territory or a foreign country—includes a reference to the making of an order under the corresponding provision of a law of the State or Territory or foreign country in relation to the offence.

35  Service in armed forces of enemy country

             (1)  A person ceases to be an Australian citizen if the person:

                     (a)  is a national or citizen of a foreign country; and

                     (b)  serves in the armed forces of a country at war with Australia.

             (2)  The person ceases to be an Australian citizen at the time the person commences to so serve.

Note:          A child of the person may also cease to be an Australian citizen: see section 36.

36  Children of responsible parents who cease to be citizens

             (1)  If:

                     (a)  a person ceases to be an Australian citizen at a particular time (the cessation time) under section 33, 34 or 35; and

                     (b)  at the cessation time, the person is a responsible parent of a child aged under 18;

then:

                     (c)  the Minister may, by writing, revoke the child’s Australian citizenship; and

                     (d)  if the Minister does so—the child ceases to be an Australian citizen at the time of the revocation.

Exception—another responsible parent

             (2)  If, at the cessation time, another responsible parent of the child is an Australian citizen, subsection (1) does not apply to the child:

                     (a)  while there is a responsible parent who is an Australian citizen; and

                     (b)  if there ceases to be such a responsible parent because of the death of a responsible parent—at any time after that death.

Exception—statelessness

             (3)  The Minister must not revoke a child’s Australian citizenship under subsection (1) if the Minister is satisfied that the child would then become a person who is not a national or citizen of any country.


 

Division 4Evidence of Australian citizenship

37  Evidence of Australian citizenship

             (1)  A person may make an application to the Minister for evidence of the person’s Australian citizenship.

Note:          Section 46 sets out application requirements (which may include the payment of a fee).

Notice

             (2)  The Minister may give the person a written notice stating that the person is an Australian citizen at a particular time.

             (3)  The notice must:

                     (a)  be in a form prescribed by the regulations; and

                     (b)  contain any other matter prescribed by the regulations.

Identity

             (4)  The Minister must not give the person such a notice unless the Minister is satisfied of the identity of the person.

Note:          Division 5 contains the identity provisions.

Evidentiary status

             (5)  A notice is prima facie evidence of the matters in the notice.

Cancellation

             (6)  The Minister may, by writing, cancel a notice given to a person under this section.

38  Surrender of evidentiary notice

Request for surrender

             (1)  If:

                     (a)  the Minister makes a decision under section 34 to revoke a person’s Australian citizenship; and

                     (b)  at the time of the revocation, there is in force a notice under section 37 in relation to the person;

the Minister may request the person to surrender the notice to the Minister.

             (2)  If the Minister makes a decision under subsection 37(6) to cancel a notice given to a person under section 37, the Minister may request the person to surrender the notice to the Minister.

Form of request

             (3)  A request given to a person under subsection (1) or (2) must:

                     (a)  be made in writing; and

                     (b)  specify the day on or before which the person must surrender the notice (which must be a day at least 28 days after the day on which the Minister makes the request); and

                     (c)  specify how the person is to surrender the notice to the Minister; and

                     (d)  contain a statement to the effect that a failure to comply with the request is an offence.

Offence

             (4)  A person commits an offence if:

                     (a)  the person is given a request that is in accordance with this section; and

                     (b)  the person fails to comply with the request.

Penalty for contravention of this subsection: 10 penalty units.

39  Altering evidentiary notice

                   A person commits an offence if:

                     (a)  the person alters, or causes or permits to be altered, a notice; and

                     (b)  the notice was given to a person under section 37.

Penalty:  Imprisonment for 12 months.


 

Division 5Personal identifiers

Subdivision AObtaining personal identifiers

40  Request for personal identifiers

             (1)  For the purposes of the Minister being satisfied of the identity of a person in relation to an application under this Part, the following persons may request the applicant, in writing, to provide one or more specified personal identifiers in relation to the application:

                     (a)  the Minister;

                     (b)  a person authorised under subsection (3);

                     (c)  a person who is included in a class of persons authorised under subsection (4).

Form of request

             (2)  A request must inform the person of the matters prescribed by the regulations.

Authorisations

             (3)  The Minister may, by writing, authorise a person for the purposes of paragraph (1)(b).

             (4)  The Minister may, by legislative instrument, authorise a class of persons for the purposes of paragraph (1)(c).

41  Provision of personal identifiers

                   The regulations may prescribe the procedures and requirements that apply to the provision of a personal identifier by a person under this Division.

Subdivision BObligations relating to identifying information

42  Accessing identifying information

             (1)  A person commits an offence if:

                     (a)  the person accesses identifying information; and

                     (b)  the person is not authorised under this section to access the identifying information for the purpose for which the person accessed it.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

             (2)  This section does not apply if the access is through a disclosure that is a permitted disclosure within the meaning of section 43.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Authorisation

             (3)  The Minister may, in writing, authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation.

             (4)  The Minister must specify in an authorisation under subsection (3), as the purpose or purposes for which access is authorised, one or more of the following purposes:

                     (a)  one or more of the purposes set out in paragraph 10(2)(c);

                     (b)  disclosing identifying information in accordance with this Division;

                     (c)  administering or managing the storage of identifying information;

                     (d)  making identifying information available to the person to whom it relates;

                     (e)  modifying identifying information to enable it to be matched with other identifying information;

                      (f)  modifying identifying information in order to correct errors or ensure compliance with appropriate standards;

                     (g)  making decisions under this Act or the regulations, or under the Migration Act 1958 or the regulations made under that Act;

                     (h)  complying with Australian laws.

             (5)  However, the Minister must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:

                     (a)  investigating an offence against an Australian law; or

                     (b)  prosecuting a person for such an offence;

if the identifying information in question relates to a personal identifier of a type prescribed by the regulations for the purposes of this section.

43  Disclosing identifying information

             (1)  A person commits an offence if:

                     (a)  the person’s conduct causes disclosure of identifying information; and

                     (b)  the disclosure is not a permitted disclosure.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

             (2)  A permitted disclosure is a disclosure that:

                     (a)  is for the purpose of data-matching in order to identify, or authenticate the identity of, a person for the purposes of this Act; or

                     (b)  is for the purposes of this Act; or

                     (c)  is for the purpose of administering or managing the storage of identifying information; or

                     (d)  is for the purpose of making the identifying information in question available to the person to whom it relates; or

                     (e)  takes place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory, for the exchange of identifying information; or

                      (f)  is for the purpose of a proceeding, before a court or tribunal, relating to the person to whom the identifying information in question relates; or

                     (g)  is for the purpose of an investigation by the Privacy Commissioner or the Ombudsman relating to a request for the provision of a personal identifier; or

                     (h)  takes place with the written consent of the person to whom the identifying information in question relates.

             (3)  However, a disclosure is not a permitted disclosure if:

                     (a)  it is a disclosure of identifying information relating to a personal identifier of a type prescribed by the regulations for the purposes of this section; and

                     (b)  it is for the purpose of:

                              (i)  investigating an offence against an Australian law; or

                             (ii)  prosecuting a person for such an offence.

44  Unauthorised modification or impairment of identifying information

Unauthorised modification

             (1)  A person commits an offence if:

                     (a)  the person causes any unauthorised modification of identifying information; and

                     (b)  the person intends to cause the modification; and

                     (c)  the person knows that the modification is unauthorised.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

Unauthorised impairment

             (2)  A person commits an offence if:

                     (a)  the person causes any unauthorised impairment of:

                              (i)  the reliability of identifying information; or

                             (ii)  the security of the storage of identifying information; or

                            (iii)  the operation of a system by which identifying information is stored; and

                     (b)  the person intends to cause the impairment; and

                     (c)  the person knows that the impairment is unauthorised.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

Interpretation

             (3)  In this section:

                     (a)  modification of identifying information; or

                     (b)  impairment of the reliability of identifying information; or

                     (c)  impairment of the security of the storage of identifying information; or

                     (d)  impairment of the operation of a system by which identifying information is stored;

by a person is unauthorised if the person is not entitled to cause that modification or impairment.

             (4)  Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.

             (5)  For the purposes of this section, a person causes any such unauthorised modification or impairment if the person’s conduct substantially contributes to it.

             (6)  For the purposes of subsection (3), if:

                     (a)  a person causes any modification or impairment of a kind mentioned in that subsection; and

                     (b)  the person does so under a warrant issued under an Australian law;

the person is entitled to cause that modification or impairment.

45  Destroying identifying information

             (1)  A person commits an offence if:

                     (a)  the person is the responsible person for identifying information; and

                     (b)  the person fails to destroy the identifying information as soon as practicable after the person is no longer required under the Archives Act 1983 to keep the identifying information.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

Note:          See section 24 of the Archives Act 1983 on the obligation to keep the identifying information.

             (2)  This section does not apply if the identifying information is:

                     (a)  a personal identifier that is any of the following:

                              (i)  a measurement of a person’s height and weight;

                             (ii)  a photograph or other image of a person’s face and shoulders;

                            (iii)  a person’s signature; or

                     (b)  identifying information derived from or relating to such a personal identifier.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Definitions

             (3)  For the purposes of this section, the responsible person for identifying information is:

                     (a)  if the identifying information is stored on a database—the person who has day-to-day control of the database; or

                     (b)  otherwise—the person who has day-to-day responsibility for the system under which the identifying information is stored.

             (4)  For the purposes of this section, identifying information is destroyed if:

                     (a)  in the case of identifying information that is a personal identifier—it is physically destroyed; and

                     (b)  in any other case—any means of identifying it with the person to whom it relates is destroyed.

             (5)  For the purposes of this section, a database is a discrete body of information stored by electronic means, containing:

                     (a)  indexes of persons who have provided personal identifiers in accordance with a request under this Division; and

                     (b)  their identifying information.


 

Part 3Other matters

  

46  Application requirements

             (1)  An application under a provision of this Act must:

                     (a)  be on the relevant form approved by the Minister for the purposes of that provision; and

                     (b)  contain the information required by the form; and

                     (c)  be accompanied by any other information or documents prescribed by the regulations; and

                     (d)  be accompanied by the fee (if any) prescribed by the regulations.

Approval of forms

             (2)  The Minister may, by writing, approve one or more forms for the purposes of a provision of this Act under which an application may be made.

Note:          For example, there are 2 ways to become an Australian citizen by descent under section 16. The Minister may approve 1 form for the purposes of that section or may approve 2 different forms.

Remission, refund or waiver of fees

             (3)  The regulations may make provision for and in relation to the remission, refund or waiver of any fees of a kind referred to in paragraph (1)(d).

47  Notification of decisions

             (1)  If the Minister makes a decision under this Act in relation to a person, the Minister must give the person notice of the decision.

Child

             (2)  If the person is a child, the Minister satisfies the requirement in subsection (1) if the Minister gives a parent of the child notice of the decision.

Reasons for adverse decision

             (3)  If the decision is an adverse decision, the notice must include the reasons for the decision.

Form of notice

             (4)  The Minister must give the notice in the manner prescribed by the regulations (which includes electronic form).

Procedural defect does not affect validity of decision

             (5)  A failure to comply with subsection (3) or (4) does not affect the validity of the decision.

48  Computerised decision-making

Computer-based decisions

             (1)  The Minister may, by writing, arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under this Act or the regulations:

                     (a)  make a decision; or

                     (b)  exercise any power or comply with any obligation; or

                     (c)  do anything else related to making a decision or exercising a power or complying with an obligation.

             (2)  The Minister is taken to have:

                     (a)  made a decision; or

                     (b)  exercised a power or complied with an obligation; or

                     (c)  done something else related to the making of a decision or the exercise of a power or the compliance with an obligation;

that was made, exercised, complied with or done by the operation of a computer program under such an arrangement.

Minister may substitute his or her own decision

             (3)  The Minister may substitute a decision (the substituted decision) for a decision (the initial decision) made by the operation of a computer program under such an arrangement if:

                     (a)  a notice under section 49 relates to the computer program and to the initial decision; and

                     (b)  the notice states that the computer program was not functioning correctly; and

                     (c)  the substituted decision could have been made under the same provision of this Act or the regulations as the initial decision; and

                     (d)  the substituted decision is more favourable to the applicant.

             (4)  The Minister does not have a duty to consider whether to exercise the power under subsection (3) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

             (5)  Subsection (3) has effect despite any law of the Commonwealth, or any rule of common law, to the contrary effect.

Arrangement not a legislative instrument

             (6)  An arrangement under subsection (1) is not a legislative instrument.

49  Evidence of whether computer program is functioning correctly

Issue of notices

             (1)  In citizenship proceedings, a notice signed by an authorised person stating whether or not a specified computer program was functioning correctly:

                     (a)  at a specified time or during a specified period; and

                     (b)  in relation to specified outcomes from the operation of that program under an arrangement made under subsection 48(1);

is prima facie evidence of the matters stated in the notice.

Ministerial authorisations

             (2)  The Minister may, by writing, authorise a person to issue notices under this section.

             (3)  The Minister may, by legislative instrument, authorise a class of persons to issue notices under this section.

Definitions

             (4)  In this section:

authorised person means:

                     (a)  an APS employee in the Department; or

                     (b)  a person authorised under subsection (2) to issue notices under this section; or

                     (c)  any person who is included in a class of persons authorised under subsection (3) to issue notices under this section.

citizenship proceedings means:

                     (a)  proceedings in a court (including criminal proceedings) that relate to this Act (including an offence against this Act); or

                     (b)  proceedings that relate to an application for review under section 52.

functioning correctly: a computer program is functioning correctly if:

                     (a)  outcomes from its operation comply with this Act and the regulations; and

                     (b)  those outcomes would be valid if they were made by the Minister otherwise than by the operation of the computer program.

50  False statements or representations

             (1)  A person commits an offence if:

                     (a)  the person makes, or causes or permits to be made, a representation or statement; and

                     (b)  the person does so knowing that the representation or statement is false or misleading in a material particular; and

                     (c)  the person does so for a purpose of or in relation to this Act.

Penalty:  Imprisonment for 12 months.

             (2)  A person commits an offence if:

                     (a)  the person conceals, or causes or permits to be concealed, a material circumstance; and

                     (b)  the person does so for a purpose of or in relation to this Act.

Penalty:  Imprisonment for 12 months.

51  Geographical jurisdiction for offences

                   Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Act.

52  Review of decisions

             (1)  An application may be made to the Administrative Appeals Tribunal for review of the following decisions:

                     (a)  a decision under section 17 to refuse to approve a person becoming an Australian citizen;

                     (b)  a decision under section 24 to refuse to approve a person becoming an Australian citizen;

                     (c)  a decision under section 25 to cancel an approval given to a person under section 24;

                     (d)  a decision under section 30 to refuse to approve a person becoming an Australian citizen again;

                     (e)  a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5) (about war);

                      (f)  a decision under section 34 or subsection 36(1) to revoke a person’s Australian citizenship.

Citizenship by conferral decision

             (2)  However, a person (the applicant) cannot apply for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen unless the applicant is a permanent resident.

             (3)  Subsection (2) does not apply if the decision was made in relation to a person aged under 18 at the time the person made the application to become an Australian citizen.

53  Delegation

                   The Minister may, by writing, delegate to any person all or any of the Minister’s functions or powers under this Act or the regulations.

54  Regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Schedule 1Pledge of commitment as a citizen of the Commonwealth of Australia

Note:       See section 27.

  

  

1  Form of pledge no. 1

From this time forward, under God,

I pledge my loyalty to Australia and its people,

whose democratic beliefs I share,

whose rights and liberties I respect, and

whose laws I will uphold and obey.

2  Form of pledge no. 2

From this time forward,

I pledge my loyalty to Australia and its people,

whose democratic beliefs I share,

whose rights and liberties I respect, and

whose laws I will uphold and obey.