Australian Citizenship (LIN 22/074: Classes of Persons Who May Receive a Pledge of Commitment) Authorisation 2022

The central concept is an "authorised person" who may receive the pledge of commitment. These are divided into eight numbered classes in Schedule 1: (1) the Governor-General; (2) State Governors; (3-4) members of federal Parliament; (5) entrusted persons in the Department of Home Affairs at specified APS levels (from APS 4 to SES 3) including Regional Directors and program-specific roles; (6) Home Affairs staff posted to diplomatic missions; (7) certain diplomatic officeholders (High Commissioner, Ambassador, Consul General, etc.) and Trade Commissioners where no DFAT or Home Affairs representative is present; (8) a long list of local government officeholders broken down by state and territory, plus external territories and Antarctic station leaders. The instrument does not define "pledge of commitment" itself; that is defined in the Australian Citizenship Act 2007 as the pledge set out in Schedule 1 to that Act. The phrase "entrusted person" in classes 5 and 6 is not defined in this instrument but presumably refers to persons entrusted with citizenship functions under other instruments or departmental delegations. The disqualification provision in section 4(2) introduces a separate concept: the character of a citizenship ceremony as non-commercial, apolitical, non-partisan and secular. This is not defined further, leaving the Minister broad discretion. The instrument also defines classification levels for APS employees by reference to the Public Service Classification Rules 2000. There is no mechanism for a disqualified person to challenge or seek review within the instrument itself; the only requirement is that the Minister gives a notice to the affected person. The classes do not include private individuals or organisations; only public officeholders and public servants are authorised. The list is exhaustive. The instrument does not prescribe the form of the pledge ceremony beyond the character requirement; that is left to other instruments and departmental practice. The concept of "authorisation" is binary: either the person is within a class and not disqualified, or they are not. The Minister's power to disqualify is not time-limited; presumably it continues until the notice is revoked, but the instrument does not say.

The instrument directly affects three groups. First, the authorised persons themselves: they gain the legal capacity to receive the pledge of commitment. If they are listed in Schedule 1 and not served a disqualification notice, they may lawfully administer citizenship ceremonies. This includes the Governor-General, State Governors, all federal MPs, about 150 categories of local government officeholders (mayors, deputy mayors, CEOs, administrators, some councillors in specific wards), Home Affairs staff at certain levels, and diplomatic personnel. Each of these persons faces the possibility of being suddenly disqualified by ministerial notice, without any stated right of response or appeal. Second, the instrument affects citizenship applicants: they must have their pledge received by a person who is authorised at the time of the ceremony. If the person receiving the pledge is later disqualified retrospectively (the instrument does not preclude a notice being backdated, though section 4(2) is expressed in prospective terms - "has received or is likely to receive" - but the notice itself could be given after the ceremony), it is unclear whether the pledge is invalid. The Act would govern that. Third, the Minister is affected: the Minister gains a discretionary power to exclude any authorised person from receiving pledges, by notice, without amending the legislative instrument. This is a relatively low-cost way to police the conduct of ceremonies. Local government councils, especially in smaller jurisdictions, are affected because they must ensure their officeholders who conduct ceremonies remain authorised. The inclusion of specific ward councillors (e.g. Coastal Ward, Shire of Coorow; Leinster Ward, Shire of Leonora; Robinvale Ward, Swan Hill) means those individual councillors are authorised not as generic councillors but by virtue of their specific position. That creates a compliance burden for councils to map which of their councillors appear on the list. Councillors not listed cannot administer the pledge unless they hold another listed office. The instrument also affects the Department of Home Affairs and the Department of Foreign Affairs and Trade, as they must ensure that diplomatic mission staff and locally engaged staff who are Australian citizens are correctly classified. The Antarctic station leaders (Casey, Davis, Mawson) are unusual inclusions, presumably to allow pledge ceremonies at remote stations. The instrument does not affect the general public directly, but it shapes the formality and accessibility of citizenship ceremonies.

The instrument imposes few positive duties. The main duty on an authorised person is to conduct the pledge ceremony in a manner consistent with its character as non-commercial, apolitical, non-partisan and secular. This is not explicitly stated as a duty in the instrument; rather, it is a condition that, if breached, may lead to disqualification under section 4(2). The Minister has a duty to give a notice if disqualifying a person. There is no explicit duty on the Minister to provide reasons, though administrative law principles may require it. Authorised persons have a right to receive the pledge, but that right is defeasible by ministerial notice. They have no right of review under this instrument. Citizenship applicants have a right to have their pledge received by an authorised person, but they have no right to choose which authorised person; they must attend the ceremony arranged by the Department or the authorised person. The instrument does not confer any right on applicants to challenge the validity of a pledge ceremony based on the lack of authorisation; that would arise under the Act. The instrument also implicitly creates a right for the classes listed to be authorised unless disqualified. The disqualification power is unfettered in the sense that the Minister need only be satisfied that the person has received or is likely to receive a pledge in a way inconsistent with the character requirements. The word "satisfied" imports a low threshold; a court would likely require the Minister to have material on which a reasonable satisfaction could be based, but the instrument itself sets no evidentiary standard. The notice requirement is the only procedural safeguard. There is no obligation on the Minister to consult the authorised person or the relevant council before issuing a notice. The instrument also does not impose any time limit on the notice; it could be permanent. The instrument does not require authorised persons to keep records or report on ceremonies; those obligations arise from other instruments or administrative practices. The instrument also does not require authorised persons to verify their own authorisation status; they are simply deemed authorised if within a class and not disqualified. In practice, a person who knows they are within a class may assume they are authorised, but they may be unaware of a disqualification notice. The Department would likely maintain a list.

This instrument itself creates no penalties. It is an authorising instrument, not a penal one. However, non-compliance with the underlying Act could have consequences. If a person not listed in Schedule 1 receives a pledge, the ceremony may be invalid, meaning the applicant does not become a citizen. That would be enforceable through the Act’s general provisions for review and cancellation. If an authorised person who has been disqualified nonetheless receives a pledge, the validity of that pledge would be questionable. The Act at section 27 provides that the Minister must be satisfied that the person has made the pledge and that it was received by a person authorised under subsection (5); if the receiver was disqualified, the requirement is not met. There is no criminal penalty for an unauthorised person receiving a pledge, but it could amount to an offence under the Act if done with intent to deceive or under false pretence, though that is not in this instrument. The enforcement mechanism is largely administrative: the Minister can issue disqualification notices, and presumably the Department would communicate with councils and other bodies to ensure compliance. The instrument does not provide for internal review or merits review of a disqualification decision. Judicial review under the Administrative Decisions (Judicial Review) Act 1977 would be available, but that is not sourced in this instrument. For local government officeholders, the prospect of a disqualification notice being issued could have reputational consequences, but the instrument does not prescribe any penalty for the officeholder. The real enforcement lever is the invalidity of the citizenship ceremony, which would affect the applicant, not the official. That creates a perverse incentive: an applicant whose pledge is received by a disqualified person may suffer the consequences, while the disqualified official faces no direct penalty. The instrument also does not prescribe any auditing or monitoring mechanism; enforcement relies on complaints and Ministerial awareness. Given the high volume of citizenship ceremonies each year, practical enforcement may be uneven. The instrument's retrospective commencement from 8 September 2020 means that any ceremony conducted after that date with a person who was not authorised under the old instrument but is now authorised under this one is regularised. That retroactive validation avoids potential litigation over past ceremonies.

This instrument is made under subsection 27(5) of the Australian Citizenship Act 2007. Section 27 of the Act sets out the citizenship pledge requirement; subsection (5) provides that the Minister may, by legislative instrument, authorise a person or class of persons to receive the pledge. This instrument is that authorisation for classes. It interacts with other instruments made under the Act, such as the Australian Citizenship (Pledge of Commitment) Determination 2020 which sets out the form of the pledge. The Act itself defines the pledge and the citizenship ceremony requirements. The instrument also interacts with the Public Service Classification Rules 2000 for defining APS levels. It interacts with state and territory local government legislation because the authorised classes include many local government officeholders; those officeholders derive their general powers from state laws, but their authority to receive the pledge comes solely from this Commonwealth instrument. If a state law prohibits a particular officeholder from performing a ceremonial function, that may affect their ability to act under this instrument, but the instrument does not address that. The instrument also interacts with the Diplomatic Privileges and Immunities Act 1967 and the Consular Privileges and Immunities Act 1972 insofar as diplomatic mission staff are concerned; those Acts do not affect authorisation but may affect legal liability. The instrument does not interact directly with migration law, but the citizenship process is part of the broader migration pathway. The disqualification power in section 4(2) uses the concept of "non-commercial, apolitical, non-partisan and secular" which is likely derived from departmental policy and the Citizenship Ceremonies Code. The Code itself is not a legislative instrument but may be used by the Minister in deciding whether a ceremony is inconsistent. The instrument does not incorporate the Code. The Minister's decision to disqualify may be subject to the general law of judicial review, but the instrument does not confer any additional rights. The instrument also does not interact with the Australian Human Rights Commission Act 1986; discrimination complaints about ceremony conduct would be separate. The instrument is silent on conflicts of interest; an MP who conducts a ceremony for a party member would need to ensure the ceremony remains apolitical. Finally, the instrument does not affect the operation of the Citizenship Act's provisions on renunciation or loss of citizenship; it is purely about the pledge ceremony.

The instrument repeals the earlier instrument LIN 20/084, the Citizenship (LIN 20/084: Class of Persons Who May Receive a Pledge of Commitment) Instrument 2020. No explanatory statement or ES is included in the source text, but the repeal is straightforward: the earlier instrument is replaced in its entirety. The commencement provision is unusual: section 2 provides that the substantive provisions (sections 1, 2, 4, 5 and Schedule 1) are taken to have commenced on 8 September 2020, while section 3 (the repeal) commences when the instrument is registered on the Federal Register of Legislation. This means the instrument operated retrospectively for over two years before it was made. This is typical for citizenship instruments to ensure continuity of authorisations when a new instrument is belatedly made. The earlier instrument LIN 20/084 presumably had a similar list of classes. The new instrument adds several new specific positions - notably the Antarctic station leaders, the Weipa Town Authority positions, the Nhulunbuy Town Board Chair, the Shire of Ashburton Councillor, and the Councillor for Town of Fitzroy Crossing and Town of Kununurra. It also explicitly adds the Deputy Lord Mayor positions in all states (previously may have been implied or absent). The disqualification power in section 4(2) is new; the previous instrument did not contain such a ministerial override. That is the most significant amendment in substance. The instrument also updates the definition of APS levels by reference to the current classification rules. There is no provision for transitional arrangements; the repeal of the old instrument and retrospective start of the new one means that any authorisation existing under the old instrument is replaced. The Minister's Explanatory Statement (not provided) would likely state that the changes are to ensure coverage of all relevant officeholders and to provide a mechanism to ensure ceremonies maintain their apolitical character. The retrospective commencement avoids a gap in authorisation if the old instrument was not remade before expiry. There is no sunset clause apparent; the instrument continues indefinitely until repealed or superseded.

The source text contains no references to litigation. This is a relatively low-litigation area; citizenship ceremony authorisation is a procedural matter. However, several potential legal challenges arise. A person disqualified under section 4(2) could seek judicial review under the ADJR Act on grounds such as jurisdictional error, failure to consider relevant matters, or unreasonableness. The phrase "satisfied that the person has received a pledge, or is likely to receive a pledge, in a way which is inconsistent with the character of a citizenship ceremony as non-commercial, apolitical, non-partisan and secular" is broad and could be challenged for vagueness, but courts typically defer to ministerial satisfaction in citizenship matters. There is no case law reported on the predecessor instrument. A citizenship applicant whose pledge was received by a person who was later retroactively disqualified might argue that the ceremony was valid at the time, but the instrument's retrospective commencement might validate it. If a person who was not in a class receives a pledge, the applicant could challenge the refusal of the Minister to approve citizenship on that basis. In the broader context, several cases have considered the validity of citizenship ceremonies, such as DCC v Minister for Immigration and Border Protection (2017) but nothing directly on point. The instrument itself is unlikely to be challenged because it is purely beneficial (authorising more persons). The disqualification power is the only controversial element; if a councillor is disqualified for making political remarks during a ceremony, that could raise freedom of political communication issues under the implied constitutional freedom. However, the High Court has held that citizenship ceremonies are part of a statutory process and the state may regulate them. The lack of procedural fairness in the disqualification process (no hearing, no reasons) could be challenged, but the instrument does not exclude the common law duty to afford procedural fairness. A court could read in an obligation to give the person an opportunity to respond before issuing a notice. No such case has been reported. The retrospective commencement from 8 September 2020 could be challenged as uncertain if it affects accrued rights, but the instrument as an authorising instrument does not impose any detriment. It is likely benign. Overall, litigation risk is low but not zero, particularly around the disqualification power.

Several features are easy to miss. First, the retrospective commencement to 8 September 2020 means that any pledge received between that date and registration by a person listed only in this new instrument (and not in LIN 20/084) is retrospectively valid. That is a good thing, but it also means that if the Minister disqualified someone in 2021 but this instrument was not in force, the disqualification may not have been legally effective. The instrument does not say that the disqualification power is retrospective, only the authorisation. Second, the disqualification notice under section 4(2) does not require publication. An authorised person may not know they have been disqualified. The instrument does not require the Minister to notify the relevant organisation (e.g. the council or the Department). A person who continues to administer ceremonies after disqualification does so at their own risk, and the applicant may suffer. Third, the list of authorised local government officers is not exhaustive for all councillors. Only specific wards or offices are listed. For example, in Western Australia, only certain named shire councils and wards are included; a councillor from the Shire of Coolgardie is not authorised unless they hold a listed position like mayor or CEO. In Queensland, only the Councillor for Brisbane City Council is listed, not other city councillors. This creates traps for smaller councils that may assume their mayor is sufficient but may not have a mayor at all if the council is administered. Fourth, the definition of "entrusted person" in classes 5 and 6 is undefined; legally, a person not properly entrusted by the Department may not be covered. The Department's internal delegation may not align perfectly. Fifth, the instrument uses the phrase "holding, occupying or performing the duties of" which is broad enough to cover acting appointments and temporary performance, but not a person merely designated as a ceremony official outside those roles. Sixth, the inclusion of Antarctic station leaders is intriguing; they are not officeholders in the usual sense. If a station leader is not an Australian citizen, they cannot be authorised (class 7 requires Australian citizenship; class 8 does not explicitly, but class 5 and 6 require citizenship; class 8 does not state citizenship requirement, though in practice likely all are citizens). Seventh, the power to disqualify is personal to the Minister; a delegate cannot issue a notice unless authorised under the Act. The instrument does not mention delegation. Eighth, the instrument does not address the situation where a person ceases to hold the listed office; the authorisation is tied to the position, so the person would no longer be authorised. But they remain listed as a class; a former mayor who is now a retired mayor cannot administer. Ninth, the instrument does not specify the effect of a disqualification notice if the person ceases to hold office at the time of notice. Tenth, the instrument does not provide a mechanism for revocation of a disqualification notice. The Minister could presumably issue a new notice, but the instrument is silent.

Compliance with this instrument requires organisations and individuals to ensure that only authorised persons receive the pledge of commitment during citizenship ceremonies. The primary compliance actions are:

1. Verify authorisation status: Before a ceremony, the person intending to receive the pledge must confirm that they belong to a class in Schedule 1. For local government, this means checking that the officeholder (mayor, deputy mayor, CEO, etc.) is specifically listed for their state and position. For example, a Western Australian mayor of a shire is authorised, but a mayor of a town is also authorised under item 8(d)(iii) ("Mayor of a city, municipality or town"). However, a deputy mayor of a town is authorised under 8(d)(iv). The precise wording matters. The Department of Home Affairs likely maintains a register or advice line.

2. Monitor ministerial notices: The Minister may issue disqualification notices under section 4(2). These notices are given to the person individually, not published generally. Organisations that regularly conduct ceremonies (e.g., councils, the Department) should designate a contact point to receive any such notices and communicate them to all relevant officeholders. Councils should ensure that if their mayor is disqualified, no ceremony is conducted until an alternative authorised person is arranged.

3. Uphold ceremony character: While not a direct legal duty, the risk of disqualification means that any authorised person must ensure that the ceremony is non-commercial, apolitical, non-partisan and secular. This includes avoiding political commentary, fundraising, religious prayer or ritual, and commercial branding. The Minister's satisfaction is subjective, so even a well-intentioned remark could trigger a notice. Best practice is to use the standard script provided by the Department and to avoid any improvised remarks.

4. Record-keeping: Keep records of which authorised person conducted each ceremony, the date, and confirmation that no disqualification notice was in force at that time. This protects the applicant's citizenship status if later questioned.

5. Check for retrospective application: Any ceremony conducted after 8 September 2020 should be reviewed to ensure the person was either authorised under LIN 20/084 or this instrument. If not, the ceremony may be invalid. The Department may need to arrange a new pledge.

6. Training: Provide clear guidance to all officeholders who may conduct ceremonies about their obligations and the risk of disqualification. This is particularly important for federal MPs who may be tempted to make partisan speeches.

7. When in doubt, refuse: If a person is unsure of their authorisation, they should not receive the pledge. The Department can arrange for an alternative authorised person, such as an APS employee from the Citizenship Program.

8. For diplomatic missions: Ensure that only persons listed in classes 6, 7 or 5 (if posted to mission) administer ceremonies. Locally engaged staff who are not Australian citizens or who are not in the listed positions cannot act.

Compliance costs are low for most organisations, but the risk of inadvertent invalidity is real. The instrument does not require reporting, but good governance suggests internal audit of ceremonies. The Department of Home Affairs bears the primary burden of maintaining the list of authorised persons and issuing notices. For the disqualified person, the only compliance path is to cease administering ceremonies; there is no appeal mechanism within the instrument.