Australian Citizenship Act 2007

The Act defines key concepts in section 3. An Australian citizen is a person who is an Australian citizen under Division 1 or 2 of Part 2 or who was an Australian citizen under the old Act immediately before the commencement day and has not ceased under this Act, with pre commencement status determined under the old Act as then in force under section 4(2). Permanent resident means a person present in Australia holding a permanent visa, or absent but who held a permanent visa immediately before last departure, or covered by ministerial legislative instrument determination for special category or special purpose visa holders or residents of Norfolk Island or Cocos (Keeling) Islands satisfying requirements, with pre commencement status under the old Act under section 5(3). Responsible parent means a parent unless Family Law Act 1975 orders remove parental responsibility, a person with whom the child lives or who has long term or day to day parental responsibility under a parenting order, or a guardian or custodian under Australian or foreign law, with parental responsibility defined by reference to Family Law Act 1975 Part VII under section 6(1A) and expressions in section 6(1)(b) to (c) interpreted per that Act under section 6(2). National security offence includes offences under Criminal Code Division 72, Part 5.1 excluding section 83.4, Division 91, Parts 5.3, 5.3A and 5.3B, ASIO Act, Intelligence Services Act or section 6A determinations, with the Minister able to determine by legislative instrument that specified provisions or conduct under Australian or foreign law constitute such an offence for undecided or future applications. Serious prison sentence means a sentence of imprisonment for 12 months or more. Serious repeat offender is defined in section 36C(3) in connection with cessation orders. Identifying information includes any personal identifier provided under Division 5, any meaningful identifier derived from it, any record of a result of analysing it or a derived identifier, or any other information derived from it or such a record that could be used to discover a particular person's identity or obtain information about them. Personal identifier includes fingerprints or handprints including digital, height and weight measurement, photograph or other image of a person's face including neck and shoulders under section 10A, iris scan, signature or other prescribed identifier excluding intimate forensic procedures under Crimes Act 1914 section 23WA, with the Minister required to be satisfied before regulations prescribe further identifiers that they do not involve intimate procedures, relate to external body parts and are necessary for identity authentication or combating document or identity fraud. Other concepts include adverse security assessment and qualified security assessment under ASIO Act 1979 section 35, artificial conception procedure, Australia including external Territories, Australian law as Commonwealth, State or Territory law, bogus document under Migration Act 1958 section 5(1), child including adopted, step, exnuptial or Family Law Act 1975 child, citizenship law as the Act, regulations or legislative instruments, commencement day, de facto partner under Acts Interpretation Act 1901, disclose as unauthorised access to personal identifier, entrusted person as Secretary, APS employees or contractors, Foreign Affairs Minister under Diplomatic Privileges and Immunities Act 1967, foreign law, ordinarily resident as home or permanent abode not for special or temporary purpose, permanent visa, special category visa, special purpose visa, unlawful non citizen and visa under Migration Act 1958, prison and psychiatric institution, Stateless Persons Convention as the 1954 Convention, and stepchild. Children born on ships or aircraft are taken to be born at the place of registration if registered in Australia or a foreign country or in the country of the government owned unregistered ship or aircraft under section 7(1), with deceased parent's status at death applying under section 7(2). Artificial conception and surrogacy rules under section 8 treat a child as the child of a person and their spouse or de facto partner under Family Law Act 1975 sections 60H or 60HB, not anyone else. Confinement in prison includes escape or periodic detention but excludes confinement solely for a later quashed conviction under section 9(1) and (2), with psychiatric institution confinement including escape under section 9(3). Derived face images are taken to be provided when an original image is supplied to the Minister or authorised person under section 10B.

The Act affects all persons seeking to acquire, prove or retain Australian citizenship, including those born in Australia, born outside Australia to citizen parents, adopted children, stateless persons, former citizens seeking resumption, and children of responsible parents. Section 11(1) extends the Act to every external Territory. Section 11(2) applies the Act to acts, omissions, matters and things outside Australia and to all persons irrespective of nationality or citizenship unless a contrary intention appears. Section 11(3) states the Parliament's intention that the Act applies to the exclusion of any State or Territory law providing for Australian citizenship, consistent with section 52 of the Australian Citizenship Act 1948 which provides that the provisions of that Act apply to the exclusion of any provisions providing for Australian citizenship of any law of a State whether passed or made before or after the commencement of that section. The related retrieval context from the Judiciary Act 1903 section 47 indicates similar application to all natural persons whether resident in Australia or not and whether Australian citizens or not, and all bodies corporate whether incorporated in Australia or not, extending to acts done or omitted outside Australia, though the Citizenship Act contains its own application provision in section 11. Automatic acquisition under Division 1 affects children born in Australia where a parent is a citizen or permanent resident at birth or where 10 year ordinary residence is satisfied, adopted children under State or Territory law, abandoned children found in Australia, and persons in classes specified by legislative instrument on territory incorporation. Application based acquisition under Division 2 affects persons born outside Australia seeking descent citizenship under section 16, persons adopted under Hague Convention or bilateral arrangements under section 19C, persons meeting general, incapacity, age, under 18, former citizen parent, Papua birth or statelessness eligibility under section 21, persons seeking resumption after prior cessation under section 29, and responsible parents applying simultaneously with children under section 28(4). Cessation provisions under Division 3 affect citizens who renounce under section 33, those subject to revocation for offences, fraud or special residence non compliance under sections 34 and 34A, children of responsible parents who cease under section 36, and persons convicted of serious offences subject to court orders under section 36C. Evidence provisions under Division 4 affect any person applying for a notice under section 37 or required to surrender a physical notice under section 38. Personal identifier provisions under Division 5 affect applicants for citizenship or citizenship tests who may be requested to provide fingerprints, handprints, height and weight, face images, iris scans, signatures or prescribed identifiers under section 40, and entrusted persons handling identifying information under sections 42 to 45. Part 3 provisions affect applicants required to use approved forms and provide information, documents and fees under section 46, persons making false statements or giving bogus documents under sections 50 and 45A, and those subject to computerised decisions under section 48. Organisations providing notices for special residence requirements under sections 22A and 22B are affected, as are defence personnel and their family unit members under section 23. The Minister, delegates, authorised persons, the Administrative Review Tribunal, courts making cessation orders, and agencies receiving permitted disclosures of identifying information under section 43(2) are also affected. The Act applies to natural persons and, through corporate provisions in related context, to bodies corporate in connection with applications or compliance.

The Act confers rights to apply for citizenship where eligibility criteria are met under sections 16(1), 19C(1), 21(1) and 29(1), to have applications decided by the Minister under sections 17(1), 19D(1), 24(1) and 30(1), to registration if approved under sections 18, 19E and 31, to evidence of citizenship by notice under section 37(1) where identity is satisfied under section 37(4), and to review of specified decisions by the Administrative Review Tribunal under section 52(1). Rights include commencement of citizenship on the day of approval or pledge under section 28, resumption on the day of approval under section 32(1), and restoration of citizenship if a court cessation order is overturned or quashed under section 36B(2) and (3). The Act also confers rights to permitted disclosures of identifying information under section 43(2) and to make representations in proceedings for recovery of seized bogus documents under section 45C. Duties include satisfying identity requirements before approval or evidence issuance in sections 17(3), 19D(4), 24(3), 30(3) and 37(4). Applicants aged 18 or over must demonstrate good character in descent, adoption, conferral general, former citizen parent, Papua birth, resumption and other streams under sections 16(2) and (3), 19C(2), 21(2) to (7) and 29(2) and (3). Residence duties include satisfying 4 years presence and 12 months permanent residence under section 22(1), or special residence presence and ordinary residence requirements under sections 22A(1) and 22B(1), with court ordered confinement during relevant periods requiring ministerial unreasonableness determination to avoid disqualification under sections 22(1C), 22A(2) and 22B(2). Applicants must not have ceased citizenship within the prior 12 months under sections 17(5), 19D(8), 24(7) and 30. National security duties include absence of adverse or qualified security assessments indicating risk to security under sections 17(4), 19D(5), 24(4) and 30(4), with additional conviction bars for stateless applicants under sections 17(4A), 19D(6) and (7), 24(4A) to (4D) and 30(5) to (7), subject to ministerial discretion for certain 5 year sentences where unreasonable. Offence related duties include absence of pending proceedings, prison confinement, recent serious prison sentences, serious repeat offender status, parole or licence periods, security or recognizance periods and psychiatric confinement under section 24(6), though these do not apply to statelessness applicants under section 24(8). Pledge duties require making the commitment in Schedule 1 form and prescribed arrangements before the Minister or authorised person under section 27 if not exempt under section 26(1) for those under 16, with permanent or enduring incapacity or covered by sections 21(6) to (8). Applicants must provide personal identifiers when requested under section 40 for identity verification in applications or tests, with procedures prescribed under section 41. Responsible parents have duties in relation to child applications under section 46(2A) and child revocation under section 36. Persons must not give bogus documents under section 45A, must surrender physical evidence notices on request under section 38, and must not alter notices under section 39.

Sections 42 to 45 create offences for unauthorised access, disclosure, modification or impairment of identifying information with exceptions for permitted disclosures under section 43(2) including Act or Migration Act purposes, storage management, verification to agencies, law enforcement, court proceedings, Ombudsman or Information Commissioner investigations and consent, and for reasonable belief of serious imminent threat to life or health. Section 39 creates an offence for altering a notice. Section 50 creates offences for false or misleading representations or statements or concealment of material circumstances for purposes of or in relation to the Act. Section 51 applies extended geographical jurisdiction category D under Criminal Code section 15.4 to all offences. Section 45A prohibits giving a bogus document as defined in Migration Act 1958 section 5(1) to the Minister, delegates, authorised persons, tribunals or others performing functions under the Act, with such documents forfeited to the Commonwealth. Sections 45B to 45D provide for seizure on reasonable suspicion, notice with a 90 day period for proceedings, condemnation as forfeited if no proceedings are instituted, and disposal under ministerial direction. The Minister may seek court citizenship cessation orders under sections 36A to 36D and 36L for persons convicted of serious offences listed in section 36C(3) where the court is satisfied the conduct repudiates allegiance to Australia. Revocation of citizenship is available for offences or fraud under section 34, special residence non compliance under section 34A and for children under section 36. Section 51B requires annual parliamentary reports on section 36D applications relating to convicted persons, subject to exclusions for operationally sensitive information or prejudice to security, defence or international relations.

The Act references and interacts with the Migration Act 1958 for definitions of bogus document, permanent visa, special category visa, special purpose visa, unlawful non citizen and visa, and for purposes of permitted disclosures. The Criminal Code is referenced for specific offences in sections 137.1 and 137.2, serious offences in section 36C(3), and extended geographical jurisdiction category D under section 15.4. The Family Law Act 1975 defines responsible parent, parental responsibility and governs artificial conception procedures and surrogacy under sections 60H and 60HB. The ASIO Act 1979 provides definitions for adverse security assessment and qualified security assessment under section 35, and national security offences include various parts of the Criminal Code, the ASIO Act and the Intelligence Services Act. The Archives Act 1983 section 24 requires destruction of identifying information when no longer required. The Crimes Act 1914 section 23WA excludes intimate forensic procedures from personal identifiers, and Division 2 of Part 1AA allows use of seized things for citizenship decisions under section 51A. The Acts Interpretation Act 1901 defines de facto partner. The Diplomatic Privileges and Immunities Act 1967 defines the Foreign Affairs Minister. The Judiciary Act 1903 section 47 indicates application to natural persons and bodies corporate. The Act applies to the exclusion of State or Territory laws providing for Australian citizenship under section 11(3). Regulations under the Intercountry Adoption and Bilateral Arrangements are referenced for adoption recognition. The 1954 Stateless Persons Convention is referenced in the definitions.

The draft does not detail any specific recent changes or the reasons for them in the Australian Citizenship Act 2007.

The Act provides for review of certain decisions by the Administrative Review Tribunal under section 52, including refusals of approval, cancellations, revocations and evidence refusals, with permanent residence required for review of some conferral refusals unless statelessness grounds were relied on, and the Tribunal unable to exercise or review special residence powers. Court citizenship cessation orders may be made under sections 36A to 36D, with citizenship restored if the order is overturned or quashed. No specific court challenges or controversies are described in the draft.

The Act distinguishes automatic acquisition without application from application based routes requiring approval, registration and in some cases a pledge. It imposes identity satisfaction as a threshold in sections 17(3), 19D(4), 24(3), 30(3) and 37(4). National security bars apply through adverse or qualified security assessments indicating direct or indirect risk to security under section 4 of the ASIO Act, with additional conviction bars for stateless applicants and ministerial discretion to disregard certain 5 year imprisonment convictions where unreasonable. Offence bars in section 24(6) prohibit approval during pending proceedings, prison confinement, 2 years after a serious prison sentence, 10 years for serious repeat offenders, parole or licence periods, security or recognizance periods and psychiatric confinement, though these do not apply to statelessness applicants under section 24(8). A 12 month post cessation bar applies in sections 17(5), 19D(8), 24(7) and 30. Good character is required for applicants aged 18 or over in descent, adoption, conferral general, former citizen parent, Papua birth, resumption and some other streams. Residence requirements include 4 years presence immediately before application not as an unlawful non citizen and 12 months as permanent resident under section 22(1), with absences up to 12 months in the 4 year period and 90 days in the 12 month period disregarded if permanent resident during absence under sections 22(1A) and (1B), and court ordered prison or psychiatric confinement during the 4 year period disqualifying unless the Minister decides it is unreasonable under sections 22(1C) and (5A). Special residence for beneficial activities requires 180 days presence in the prior 2 years and 90 days in the prior 12 months, ordinary residence and permanent residence throughout the 2 years, no unlawful non citizen presence, organisational notice of reasonable prospect and specified activity engagement, with alternative requirements determinable personally by the Minister under section 22A(1A) subject to undertaking, tabling and no duty to consider under sections 22A(6) and (7). Special residence for regular travel work requires 480 days presence in the prior 4 years and 120 days in the prior 12 months, ordinary residence and permanent residence throughout, 2 years engagement with regular travel, with similar personal alternative determination under section 22B(1A). Defence service requires 90 days in Permanent Forces or paid Reserves or medical discharge due to service, with family unit members of visa holding defence personnel also qualifying under section 23. The citizenship test under section 23A is approved by written determination not a legislative instrument, specifying successful completion, eligibility criteria including permanent residence and identity, start and completion periods and other matters, satisfying paragraphs 21(2)(d) to (f) under section 21(2A). Pledge of commitment follows Schedule 1 forms and prescribed arrangements before the Minister or authorised person or class under section 27, cannot precede approval under section 26(2), and may be delayed up to 12 months total for visa cancellation risk or charge possibility under sections 26(3) and (4). Citizenship begins on the day of approval for those not required to pledge or on the day of the pledge otherwise under section 28(1) and (2), with special rules for simultaneous child and responsible parent applications under section 28(4). Revocation for special residence non compliance under section 34A applies where ordinary residence or presence undertakings are not met in the 2 years after citizenship. Court cessation orders form part of the sentence under section 36C, with concurrent sentences aggregated in full and suspended periods excluded under sections 36C(8) and (9), and no resumption possible under Divisions 1 or 2 after such orders under section 36L. Evidence notices are prima facie evidence under section 37(5) and may be cancelled under section 37(6). Identifying information must be destroyed when no longer required under the Archives Act 1983 except for specified identifiers under section 45(2).

Applications must use approved forms with required information, prescribed documents and fees under section 46(1), with children under 16 limited to forms containing only their application or that of one responsible parent under section 46(2A). Decisions must be notified with reasons for adverse decisions under section 47. Computerised decisions are authorised under section 48 with substitution power for more favourable outcomes where a program malfunctioned under section 49, and prima facie evidence of program functioning. False statements or concealment of material circumstances for Act purposes are offences under section 50. Extended geographical jurisdiction category D applies under section 51. Things seized under Crimes Act warrants may be used for citizenship decisions under section 51A. Annual reports on section 36D applications are required under section 51B subject to sensitivity exclusions. Reviewable decisions include refusals of approval, cancellations, revocations and evidence refusals under section 52(1), with permanent residence required for review of some conferral refusals unless statelessness grounds were relied on under section 52(2), and the Tribunal unable to exercise special residence powers or review their exercise under section 52(3). Delegation is permitted except for citizenship test approval and section 36D applications under section 53. Regulations may prescribe required or convenient matters under section 54.