Consideration
50 The substance of the submissions made by counsel for the appellant was that upon its proper construction, s 21(5) excluded the need to satisfy the general residence requirement stated in s 22 and that it was therefore not open to the Tribunal to have regard to the residence requirement stated in the Policy Guidelines while exercising the discretion contained in s 24.
51 It is true that the residence requirement is not one of the conditions of eligibility stated in s 21(5) for applicants aged under 18 years. However, eligibility for citizenship is only one of the steps prescribed for conferral of citizenship under the scheme contained in Part 2, Division 2, Subdivision B of the Act.
52 In my view, the approach to construction proposed by the appellant would be contrary to the terms of the scheme contained in the Act considered as a whole. This is clear in my opinion from the express terms of the Act considered in it full context.
53 As counsel for the Minister submitted, the scheme appears in the provisions of the Act to which I have referred, and the context includes the legislative history gleaned from the 1948 Act and the Explanatory Memorandum to the Bill.
54 The critical provision in Subdivision B is s 24(1). It confers a discretion on the Minister to "approve" or to "refuse to approve" an application by a person to become an Australian citizen.
55 There are a number of express restrictions on the exercise of the power by the Minister. But apart from those restrictions, the exercise of the discretion is unconfined, except insofar as there may be found in the subject matter, scope and purpose of the Act some implied limitation on the factors to which the decision-maker may legitimately have regard: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J)
56 The scope and purpose of the Act may be seen in particular from the provisions of Part 2 which deal with citizenship and the ways in which it may be acquired or lost. What can be seen from this is that the essential requirements for acquisition of citizenship include a communal relationship with Australia. This can be seen in each of the ways in which a person acquires Australian citizenship, whether automatically, by birth or by conferral under Subdivision B.
57 The communal relationship is recognised in the Preamble to the Act which refers to full and formal membership of the community. Where citizenship is conferred, the preamble states that persons upon whom citizenship is conferred enjoy their rights and undertake to accept their obligations by, inter alia, pledging loyalty to Australia and its people. The pledge is the fourth and final step in the acquisition of citizenship by conferral under subdivision B.
58 The first step is for a person to make an application to become a citizen: s 21(1).
59 The second step is for the Minister to be satisfied that the relevant conditions of eligibility stated in the various categories prescribed in s 21(2), (3), (4), (5), (6), (7) or (8) is satisfied.
60 The third step is for the Minister to exercise the discretion contained in s 24(1) to approve or to refuse to approve the person becoming an Australian citizen.
61 The fourth step is for the person to make a pledge of commitment: see s 26. It is clear from s 20 and s 26(2) of the Act that a person does not become an Australian citizen until he or she makes the pledge.
62 It is plain from this elaboration of the scheme that the eligibility conditions stated in s 21 do not confine the exercise of the discretion to approve or to refuse to approve under s 24(1). So much is stated in explicit terms in s 24(2). Also, the four step nature of the scheme shows that the discretion to approve or not to approve takes into account the nature of citizenship which is embraced in the entirety of the process of acquiring by way of conferral, the status of Australian citizenship.
63 That status is only conferred when an applicant has taken the pledge of commitment after the Minister's favourable exercise of the discretion to approve the application.
64 The pledge incorporates the concept of a communal relationship with Australia. That relationship is bound up with a pledge of loyalty and a statement of shared beliefs and respect for Australia's rights and liberties. The scope and purpose of the scheme is wide. There is nothing in it which suggests that the discretion is confined by a mere consideration of the conditions for eligibility.
65 Indeed, it extends to a consideration of all the factors which bear upon the willingness and ability of a person to become an Australian citizen. One of those factors is the question of whether the person has been a resident of Australia for a specified period.
66 This approach to construction is reinforced by a consideration of the 1948 Act. It is part of the context in which the Act is to be construed.
67 The 1948 Act rolled up in ss 13 and 15 the same four stages of the process of the grant of Australian citizenship as are now found in the provisions of Subdivision B of Division 2 in Part 2 of the Act.
68 Section 13 required an application, the satisfaction of the stated condition and the exercise of the Minister's discretion. The pledge was required by s 15 of the 1948 Act. Section 15 of the 1948 Act made it plain that the status of Australian citizenship was conferred only when the person made a pledge.
69 Thus, the exercise of the discretion by the Minister under the 1948 Act was, as in the case of the Act, not confined by a mere consideration of whether the conditions of eligibility were satisfied.
70 The position is even clearer under the Act than it was under the 1948 Act. This is because s 24(2) of the Act makes it plain that the discretion is not so confined.
71 The terms of s 24(2) of the Act and the separation of the categories of eligibility into separate sections, rather than by way of a rolled up statement of the first three steps in the scheme as they appeared in the 1948 Act make it clear that in exercising the discretion, the Minister is not to look at the discretion in a narrow way. As I have said, it is a broad one which encompasses all of the scope and purpose of the Act as found in the expression of the statutory scheme.
72 Moreover, the Explanatory Memorandum to the Bill is part of the context in which the Act is to be construed. It is part of the modern approach to statutory construction to have regard to this form of extrinsic material: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
73 The Explanatory Memorandum, as revised in the Revised Explanatory Memorandum to the Bill, states that s 21(5) is the equivalent of s 13(9)(a) of the 1948 Act. It goes on to state:
As a matter of policy, applications considered under this subclause would usually be approved if the applicant meets the criteria in subclause (2). That is, the applicant is a permanent resident, satisfies the residence requirements, has a basic knowledge of English, the privileges and responsibilities of citizenship, the nature of the application and 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 is of good character. In addition, applications under this subsection would not usually be approved unless the applicant has a responsible parent (as defined by section 6 of this Act) who is an Australian citizen
74 Marshall J in Singh recognised the role of s 24(2) of the Act in the proper construction of the scope of the discretion conferred on the Minister to approve or to refuse to approve an application.
75 Section 21(5) as it stood when Singh was before Marshall J did not include as a condition of eligibility that the person be a permanent resident. The sub-section stated that a person was eligible to become an Australian citizen if the Minister was satisfied that the person was aged under 18 at the time the person made the application.
76 Nothing turns on this difference because the issue which Marshall J addressed was whether the Minister was entitled to take into account, in the exercise of the discretion, the fact that the applicant did not have permanent resident status. His Honour held that the Minister was entitled to take it into account, notwithstanding that permanent resident status was not a condition of eligibility.
77 The issue in Singh was therefore parallel to the issue which arises in the present matter. That is to say, is the Minister permitted to consider in the exercise of the discretion a matter which is not a condition of eligibility but which is referred to in the ACI Policy Guidelines as a factor to be taken into account in the decision whether or not to approve an application.
78 Marshall J considered that the Policy Guidelines in the ACI were policy considerations which the Explanatory Memorandum suggested were appropriate matters to take into account in the exercise of the discretion. They do not control the way in which the discretion is to be exercised but provide guidance. He held that they are not ultra vires : see Singh at [12].
79 In coming to that conclusion, Marshall J had regard to the Explanatory Memorandum as part of the context in which ss 21(5) and 24(1) are to be considered. There is nothing impermissible in this approach. The construction arrived at by his Honour was not wrong, let alone plainly wrong as contended by counsel for the appellant in the present case.
80 Indeed, in my respectful view, the proper construction of s 21(5) and s 24(1) in their full statutory context, as I have endeavoured to approach the matter, shows that the construction adopted by Marshall J was correct.