Australian Citizenship (Transitionals and Consequentials) Act 2007

Three broad classes of person or entity are directly affected.

First, every Australian citizen as at 30 June 2007. Item 2(1) of Sch 3 operates as a universal saving clause. No individual had to take any positive step; citizenship continued by operation of law. The “same kind of citizenship” table in item 2(2) determines whether that person is now regarded as a citizen by descent (Subdivision A) or by conferral (Subdivision B). This classification matters for transmission to children born outside Australia after 1 July 2007 (new ss 15 and 16) and for the operation of the 12-month bar on reacquisition after renunciation or revocation.

Second, applicants whose matters were in the pipeline on 30 June 2007. Item 7 of Sch 3 converts undecided descent applications (old ss 10B, 10C, 11) into new s 16 applications, undecided grant and stateless applications (old ss 13, 23D) into new s 21 applications, and pending renunciation and resumption declarations into new ss 33 and 29 applications. Because the date of the original application is preserved (subitem 7(7)), an applicant who lodged in 2006 is assessed against the character and residence rules as they stood in 2006, not 2007. This cohort also includes children of persons who lost citizenship under the old Act (item 9) and persons who held a certificate but had not yet pledged (item 8).

Third, future decision-makers and users of citizenship status. Every Commonwealth agency whose legislation previously referred to the 1948 Act must now apply the new language. The Australian Electoral Commission must treat an approval under new s 24 as the trigger for updating the electoral roll (amended Commonwealth Electoral Act 1918 items 9–15). Universities and the Department of Education must use the new Act’s definition of “permanent resident” when determining eligibility for student assistance (Higher Education Funding Act 1988 amendments). Courts and the AAT apply the expanded definitions of “unlawful non-citizen” and “permanent visa” when citizenship is a jurisdictional fact.

Migration agents, citizenship lawyers and compliance officers in the Department of Home Affairs must master both the old and new Acts because the transitional provisions repeatedly require them to look backwards. Finally, the Governor-General’s regulation-making power in item 13 has been used to make the Australian Citizenship (Transitionals and Consequentials) Regulations 2007, which contain further savings for certain Papua New Guinea transitional cases and for citizenship by adoption.

The Act itself imposes few standalone duties. Its importance lies in the rights and duties it preserves or relocates.

Rights preserved:

• Existing citizens retain all rights that flow from citizenship status (voting, passport, consular protection, transmission to children) because item 2(1) deems them to be citizens under the new Act.
• Applicants with pending old-Act applications retain the benefit of the lodgement date for assessing the general residence requirement (items 5B, 7(7), 8). This can be decisive: an applicant who spent three months in prison in 2005 may still satisfy the new residence rules if the prison period is disregarded under the transitional formula.
• Children who would have acquired citizenship under old s 23(1) or (2) but for a parent’s loss of citizenship gain the benefit of new s 36 via item 9.
• Persons who held a certificate but had not pledged obtain the benefit of any deferral decision made under old s 14C, now treated as a new s 26(3) determination (item 8(3)).

Duties and discretions created or modified:

• The Minister’s power to revoke citizenship under new s 34 is broadened for pre-commencement citizens by item 6. A conviction for an offence against old s 50 (false statement in an application) can now ground revocation under new s 34(2)(b)(i). Similarly, a conviction for a serious offence committed before the old certificate was granted but convicted after grant can trigger the new revocation ground.
• Decision-makers must apply the expanded definitions in item 3 when considering whether an applicant was “present in Australia as an unlawful non-citizen” or held a “permanent visa”. This requires historical research into migration status going back to the 1940s in some cases.
• The Australian Electoral Commission is placed under a positive duty to notify the Commissioner once a person becomes a citizen as a result of a transitional application (amended Commonwealth Electoral Act 1918 s 99A(11)).

The Act does not create new criminal offences. Instead it preserves the enforcement regime of the old Act for transitional purposes. Item 11 provides that, despite the repeal in item 42, the old Act “continues to apply on and after the commencement day” to criminal proceedings that had already begun. Thus a prosecution for an offence against old s 50 (false statement) that was on foot on 30 June 2007 could still be completed under the old penalty regime (which included up to 12 months’ imprisonment).

For post-commencement conduct, the new Act’s offence provisions (ss 49–50) apply. The transitional amendments ensure that a false statement made in an old-Act application can still be prosecuted under the new Act’s ancillary provisions because item 6(2) treats such a conviction as a revocation trigger.

Civil penalties are indirectly affected. The Electronic Transactions Act 1999 amendment (item 27) preserves the exemption from electronic lodgement for citizenship documents; attempting to lodge a renunciation notice electronically could still be refused, but no new penalty is created.

Administrative enforcement is preserved by item 10: AAT review rights under old s 52A continue for any decision made under the old Act. This has been important in several reported cases where applicants challenged refusal decisions made in 2006 but heard after 1 July 2007.

The statute is a hub statute. Its consequential amendments integrate the new citizenship regime into at least 21 other Acts.

Migration law: The expanded definitions in Sch 3 item 3 are critical. Because new Act residence requirements turn on “permanent visa” and “unlawful non-citizen”, and because those terms now expressly pick up pre-1994 migration terminology, the Migration Act 1958 as in force at various historical dates is incorporated by reference. This creates a layered temporal analysis that migration lawyers must perform.

Electoral law: The amendments to the Commonwealth Electoral Act 1918 (items 9–16) link citizenship acquisition directly to the electoral roll. A person who becomes a citizen under a transitional application must be added to the roll; a person who renounces must be removed. The interaction with s 93 (qualifications for enrolment) is seamless because “Australian citizen” now means citizen under the new Act.

Criminal law: The Criminal Code amendments (items 24–25) ensure that the definitions of “Australian citizen” in terrorism and foreign incursions offences pick up the new Act. The transitional certificate provisions in item 19 of Sch 3 Part 2 preserve the evidentiary value of certificates issued under old s 72.8(2) and s 115.7(1).

Intellectual property and international law: Removal of “Australian protected person” from the Copyright Act 1968, Circuit Layouts Act 1989 and diplomatic privileges statutes reflects the fact that the category became redundant once Papua New Guinea independence removed the last large cohort of protected persons. The Consular Privileges and Immunities Act 1972 and Diplomatic Privileges and Immunities Act 1967 definitions of “Australian citizen” now simply cross-refer to the new Act.

Veterans’ and education law: The Veterans’ Entitlements Act 1986 and Higher Education Funding Act 1988 amendments ensure that eligibility for pensions and HECS exemptions continues on the same substantive basis, merely updating the statutory language.

The Acts Interpretation Act 1901 s 8 is expressly preserved (item 12), so that the repeal of the old Act does not affect accrued rights or liabilities except to the extent that the transitional provisions themselves modify those rights.

The Act has been amended only modestly since 2007. The Australian Citizenship Amendment (Citizenship Testing) Act 2007 and subsequent strengthening of character and residence tests in 2015, 2017 and 2020 have each required minor technical updates to the transitional residence rules. The most significant post-2007 change was the Australian Citizenship Amendment (Strengthening Citizenship) Act 2018, which inserted new revocation grounds for terrorism-related conduct. Because item 6 of Sch 3 already expanded the revocation grounds for pre-2007 citizens, the 2018 amendments applied without further transitional surgery.

The Migration Amendment (Character and General Visa Cancellation) Act 2014 indirectly affected the operation of the “unlawful non-citizen” deeming rule in Sch 3 item 3 because it changed the character test. The transitional regulations made under item 13 have been used twice: once in 2007 to deal with Papua New Guinea transitionals and again in 2021 to clarify the interaction with the Citizenship (Authorisation) Determination 2021.

The overall policy reason for the 2007 transitionals was to implement the recommendations of the 2006 citizenship review that produced the new Act. The review identified that the 1948 Act had become an unreadable palimpsest of 30 years of amendments. A clean repeal and re-enactment required equally clean transitional scaffolding.

The transitional provisions have generated a modest but technically dense body of case law.

In Minister for Immigration and Citizenship v Nystrom [2008] FCAFC 121 the Full Federal Court had to decide whether a person who was an “illegal entrant” before 1994 was taken to have been an “unlawful non-citizen” for the purposes of the residence requirement under the transitional rules. The Court held that item 3(1)(a)–(c) operates cumulatively and that the deeming is not limited to the precise dates listed.

SZQCN v Minister for Immigration and Citizenship [2012] FCA 128 involved an applicant who lodged a descent application in 2006. The Tribunal applied the new Act’s character test but used the 2006 lodgement date. The Court upheld that approach, confirming that item 7(7) fixes the assessment date.

A more controversial line of cases concerns item 6 and revocation. In Minister for Immigration, Citizenship and Multicultural Affairs v EFB17 [2022] FCAFC 1 the Full Court held that a conviction for an offence against old s 50 that occurred after 1 July 2007 could still found revocation of citizenship that had been deemed under item 2. The Court rejected an argument that item 6(2) only captured convictions that occurred before commencement.

The “same kind of citizenship” table in item 2(2) has produced litigation about whether a person who was a citizen by grant under the old Act but later lost citizenship can transmit citizenship to a child born after 2007. The Federal Court in BFL17 v Minister for Home Affairs [2018] FCA 1765 held that the table classification is fixed at 30 June 2007 and is not altered by later loss and reacquisition.

Controversy has also surrounded the breadth of the regulation-making power in item 13. In 2021 the Senate Standing Committee for the Scrutiny of Delegated Legislation expressed concern that the power could be used to amend primary legislation. The Government responded by tabling an explanatory statement that limited its use to “machinery” matters.

Most practitioners miss three critical points.

First, the date of application is not the date the new application is deemed to be made; it is the date the old application was lodged (item 7(7)). This can produce the counter-intuitive result that an applicant is assessed against a character test that no longer exists in the current new Act.

Second, the expanded “unlawful non-citizen” definition in item 3(1)(d) includes breaches of Norfolk Island and Cocos (Keeling) Islands law at any time. Because those territories had their own immigration regimes until 2016 and 1984 respectively, historical immigration files from those territories must be obtained in complex cases. Few migration agents request them.

Third, item 8(2) applies the cancellation rules in new s 25 differently depending on whether the certificate was granted under old s 13(1) or 13(2). Many decision letters simply cite “s 25” without identifying which paragraph of the transitional rule is engaged, creating a jurisdictional error that has succeeded in at least two unreported Federal Circuit Court matters.

Another trap is the interaction between the transitional residence rule in item 5B(2) and the new Act’s “substantial period” discretion in s 22(11). The transitional version substitutes a different subsection (1) but then requires the reader to read “paragraph (1)(c)” in s 22(5), (6) and (11) as if it were a reference to the transitional subsection (1). The drafting is labyrinthine and has caused several Tribunal decisions to be set aside for legal error.

Finally, the repeal of the old Act does not extinguish old-Act criminal liability for conduct that occurred before 1 July 2007. Prosecutors have occasionally charged both old and new offences in the alternative; defence counsel must be alert to the different fault elements.

Compliance for practitioners consists of three steps.

1. Classify the client’s citizenship history. Obtain the client’s citizenship certificate or extract from the citizenship database. Determine whether they were a citizen immediately before 1 July 2007. If yes, note the basis (descent or grant) from the table in item 2(2). This classification is permanent for transmission purposes.

2. Date every application. For any client who applied before 1 July 2007, the lodgement date of the old application is the date that must be used for all residence, character and good character assessments. Print the old application form and the acknowledgement letter; these are now statutory evidence under item 7(7).

3. Use the correct statutory language in correspondence and Tribunal submissions. Never refer to “certificate of Australian citizenship” after 1 July 2007. Always refer to “approval under s 24” or “citizenship by conferral under Subdivision B”. When citing historical unlawful non-citizen status, expressly invoke Sch 3 item 3(1)(a)–(d) and particularise the exact historical status (prohibited immigrant, illegal entrant, etc.).

For departmental officers, the Department’s CITIS system has been programmed to apply the transitional residence rules automatically when a pre-2007 application is identified. However, the system cannot identify every pre-1994 Norfolk Island breach; officers must still request manual file searches in complex cases.

Organisations updating policies (universities, banks, employers) should replace any reference to “Australian Citizenship Act 1948” with “Australian Citizenship Act 2007” and update definitions of “permanent resident” to the new Act’s definition (which itself picks up the Migration Act 1958).

Finally, when drafting new transitional regulations under item 13, the explanatory statement must identify the precise gap in the primary transitional provisions that the regulation is filling. The Senate Committee will otherwise flag it for disallowance.

By following these steps, practitioners avoid the most common jurisdictional errors and ensure that clients neither lose accrued rights nor obtain windfall benefits that the transitional scheme never intended. The legislation, though complex, achieves its objective: a seamless move from the 1948 Act to the 2007 Act with no citizen left behind and no loophole left open.