An Act relating to Australian citizenship
Preamble
The Parliament
recognises that Australian citizenship represents full and 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 1—Preliminary
1 Short title
This Act may be cited
as the Australian Citizenship Act 2007.
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.
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Commencement
information
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Column
1
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Column
2
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Column
3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and anything in
this Act not elsewhere covered by this table
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The day on which this Act receives the
Royal Assent.
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15 March 2007
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2. Sections 2A to 54
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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.
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1 July 2007
(see F2007L01653)
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3. Schedule 1
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At the same time as the provisions
covered by table item 2.
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1 July 2007
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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.
2A Simplified outline
The following is a
simplified outline of this Act:
What this Act covers
This Act sets out how you become an Australian citizen, the
circumstances in which you may cease to be a citizen and some other matters
related to citizenship.
Becoming an Australian citizen
There are a range of ways you can become an
Australian citizen.
Acquiring citizenship automatically
Generally, you become an Australian citizen automatically if you are
born in Australia and one or both of your parents are Australian citizens or
permanent residents when you are born.
There are some other, less common, ways of automatically becoming a
citizen.
Division 1 of Part 2 has details about acquiring
citizenship automatically.
Also, if you were a citizen under the old Act immediately before the
day that this section commences, you will continue to be a citizen: see
subsection 4(1).
Acquiring citizenship by application
The other way to become an Australian citizen is to apply to the
Minister. This is covered by Division 2 of Part 2. There are 4 situations
in which you can apply for citizenship.
The first is citizenship by descent. Generally, you would apply for
this if you were born outside Australia and one or both of your parents were
Australian citizens when you were born. Citizenship by descent is covered by Subdivision A.
The second is citizenship for persons adopted in accordance with the
Hague Convention on Intercountry Adoption or a bilateral arrangement: see
Subdivision AA.
The third is citizenship by conferral. Generally,
you would need to be a permanent resident and willing to make a pledge of
commitment to apply for citizenship by conferral. You may need to successfully
complete a citizenship test. There are some less common circumstances in which
you can apply for citizenship by conferral. Citizenship by conferral is covered
by Subdivision B.
The fourth is resuming citizenship. In certain
cases where you previously ceased to be an Australian citizen, you can apply
for your citizenship to resume. Resuming citizenship is covered by Subdivision C.
The Minister must be satisfied of your identity for you to acquire
citizenship by application. Rules about identification are in Division 5
of Part 2.
The Minister may be required to refuse your application on national
security grounds.
Ceasing to be an Australian citizen
There are a number of ways that you can cease to be an Australian
citizen.
You can renounce your citizenship.
If you did not automatically become an Australian citizen, the
Minister can revoke your citizenship in certain circumstances.
There are some other, less common, ways of ceasing to be a citizen.
Division 3 of Part 2 has details about ceasing to be a
citizen.
Evidence that a person is an Australian citizen
You can apply to the Minister for evidence of your Australian
citizenship. This is covered by Division 4 of Part 2.
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.
bogus document has the same meaning as in subsection 5(1) of the Migration
Act 1958.
child: without limiting who is a child of a person for the purposes of
this Act, each of the following is the child of a person:
(a) an adopted child,
stepchild or exnuptial child of the person;
(b) someone who is a
child of the person within the meaning of the Family Law Act 1975.
commencement day means the day on which sections 2A to 54 (as originally
enacted) commence.
de facto partner has the meaning given by the Acts Interpretation Act 1901.
disclose, in relation to identifying information that is a personal
identifier provided under Division 5 of Part 2, includes provide
unauthorised access to the personal identifier.
Note: Section 42 deals with
authorised access to identifying information.
entrusted
person means:
(a) the Secretary of
the Department; or
(b) an APS employee
in the Department; or
(c) a person engaged
under section 74 of the Public Service Act 1999 by the
Secretary of the Department; or
(d) a person engaged
by the Commonwealth, the Minister, the Secretary of the Department, or by an
APS employee in the Department, to do work for the purposes of this Act or the
regulations or of the Migration Act 1958 or the regulations made under
that Act.
foreign law means a law of a foreign country.
identifying information means the following:
(a) any personal
identifier provided under Division 5 of Part 2;
(b) any meaningful
identifier derived from any such personal identifier;
(c) any record of a
result of analysing any such personal identifier or any meaningful identifier
derived from any such personal identifier;
(d) any
other information derived from:
(i) any
such personal identifier; or
(ii) any
meaningful identifier derived from any such 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.
national security offence means:
(a) an offence
against Part II or VII of the Crimes Act 1914; or
(b) an offence
against Division 72 of the Criminal Code; or
(c) an offence
against Part 5.1, 5.2 or 5.3 of the Criminal Code; or
(d) an offence
against the Australian Security Intelligence Organisation Act 1979; or
(e) an offence
against the Intelligence Services Act 2001; or
(f) an offence
covered by a determination in force under section 6A.
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.
Stateless Persons Convention means the Convention Relating to the Status of Stateless Persons,
done at New York on 28 September 1954 [1974] ATS 20.
Note: The text of the Convention is
set out in Australian Treaty Series 1974 No. 20. In 2008, the text of a
Convention in the Australian Treaty Series was accessible through the
Australian Treaties Library on the AustLII website (www.austlii.edu.au).
stepchild: without limiting who is a stepchild of a person for the purposes
of this Act, someone is the stepchild of a person if he or she
would be the person’s stepchild except that the person is not legally married
to the person’s de facto partner.
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:
(a) is
an Australian citizen under Division 1 or 2 of Part 2; or
(b) satisfies
both of the following:
(i) the
person was an Australian citizen under the Australian Citizenship Act 1948
immediately before the commencement day;
(ii) the
person has not ceased to be an Australian citizen under this Act.
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) under a parenting
order the child is to live with the person (whether or not the person is a
parent of the child); or
(c) under a parenting
order the person has parental responsibility for the child’s long‑term or day‑to‑day
care, welfare and development (whether or not the person is a parent of the
child); 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.
(1A) In paragraph (1)(a):
parental responsibility has the same meaning as in Part VII of the Family Law Act
1975.
(2) Expressions used in paragraphs (1)(b)
and (c) have the same meaning as in the Family Law Act 1975.
6A National security offences
(1) The Attorney‑General
may, by legislative instrument, determine that:
(a) an offence
against a specified provision of a specified Australian law or a specified
foreign law; or
(b) an offence
against an Australian law or a foreign law involving specified conduct;
is a national security offence for the
purposes of paragraph (f) of the definition of national security
offence in section 3.
(2) A determination under subsection (1)
applies in relation to:
(a) applications made
under this Act after the determination takes effect; and
(b) applications made
under this Act before the determination takes effect that have not been decided
before the determination takes effect.
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 or surrogacy arrangements
(1) This
section applies if a child is:
(a) a
child of a person under section 60H or 60HB of the Family Law Act 1975;
and
(b) either:
(i) a
child of the person’s spouse or de facto partner under that
section; or
(ii) a
biological child of the person’s spouse or de facto partner.
(2) The child is taken for
the purposes of this Act:
(a) to be the child
of the person and the spouse or de facto partner; and
(b) not to be the
child of anyone else.
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 is necessary for either or both of the following purposes:
(i) assisting
in the identification of, and to authenticate the identity of, a person making
an application under Part 2 or seeking to sit a test approved in a
determination under section 23A;
(ii) combating
document and identity fraud in citizenship matters;
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 2—Australian citizenship
Division 1—Automatic acquisition of Australian citizenship
11A Simplified outline
The following is a
simplified outline of this Division:
The most common way
you become an Australian citizen under this Division is by being born in Australia
and by having a parent who is an Australian citizen or a permanent resident at
the time of your birth.
There are some other,
less common, ways of becoming an Australian citizen under this Division. These
cover:
• citizenship
by being born in Australia and by being ordinarily resident in Australia for
the next 10 years: see section 12; and
• citizenship
by adoption: see section 13; and
• citizenship
for abandoned children: see section 14; and
• citizenship
by incorporation of territory: see section 15.
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 in force in 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 2—Acquisition of Australian citizenship by
application
Subdivision A—Citizenship by descent
15A Simplified outline
The following is a
simplified outline of this Subdivision:
You may be eligible
to become an Australian citizen under this Subdivision in 2 situations:
• you were
born outside Australia on or after 26 January 1949 and a parent of yours
was an Australian citizen at the time of your birth: see subsection 16(2);
or
• you were
born outside Australia or New Guinea before 26 January 1949 and a parent
of yours was an Australian citizen on 26 January 1949: see subsection 16(3).
You must make an
application to become an Australian citizen. The Minister must approve or
refuse you becoming an Australian citizen.
You must be eligible
to be an Australian citizen to be approved.
The Minister may be
required to refuse your application on grounds relating to:
• non‑satisfaction
of identity: see subsection 17(3); or
• national
security: see subsections 17(4) to (4B); or
• cessation
of citizenship: see subsection 17(5).
You will be
registered if the Minister approves you becoming an Australian citizen.
You do not become an Australian citizen, even if the Minister
approves you becoming an Australian citizen, unless a parent of yours was an
Australian citizen at a particular time: see section 19A.
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 Subdivision AA, 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
or has ever been a national or a citizen of any country, or if article
1(2)(iii) of the Stateless Persons Convention applies to the person, and 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) if the person is
or has ever been a national or a citizen of any country, or if article
1(2)(iii) of the Stateless Persons Convention applies to the person—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.
(1A) The Minister must not
approve the person becoming an Australian citizen unless the person is eligible
to become an Australian citizen under subsection 16(2) or (3).
(2) Subject to this section,
the Minister must approve the person becoming an Australian citizen if the
person is eligible to become an Australian citizen under subsection 16(2)
or (3).
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.
National security
(4) If the person is not
covered by subsection (4B), 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).
(4A) If the person is covered
by subsection (4B), the Minister must not approve the person becoming an
Australian citizen if the person has been convicted of a national security
offence.
(4B) A person is covered by
this subsection if:
(a) at the time the
person made the application under section 16, the person:
(i) is
not a national of any country; and
(ii) is
not a citizen of any country; and
(b) at the time of
the person’s birth, the person had a parent who was an Australian citizen.
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
A person becomes an
Australian citizen under this Subdivision on the day on which the Minister
approves the person becoming an Australian citizen.
19A When a person does not become a
citizen despite the Minister’s approval
Despite section 19,
a person does not become an Australian citizen under this Subdivision, even if
the Minister approves the person becoming an Australian citizen, 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 AA—Citizenship for persons adopted in accordance with the Hague
Convention on Intercountry Adoption or a bilateral arrangement
19B Simplified outline
The following is a
simplified outline of this Subdivision:
You may be eligible to
become an Australian citizen under this Subdivision if you are adopted outside
Australia by at least one Australian citizen in accordance with:
(a) the
Hague Convention on Intercountry Adoption; or
(b) a
bilateral arrangement.
You must make an
application to become an Australian citizen. The Minister must approve or
refuse you becoming an Australian citizen.
You must be eligible
to be an Australian citizen to be approved. You may be refused citizenship even
if you are eligible.
The Minister may be
required to refuse your application on grounds relating to:
• non‑satisfaction
of identity: see subsection 19D(4); or
• national
security: see subsections 19D(5) to (7A); or
• cessation
of citizenship: see subsection 19D(8).
You will be registered
if the Minister approves you becoming an Australian citizen.
19C 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).
Eligibility
(2) A person (the applicant)
is eligible to become an Australian citizen if:
(a) the applicant is
adopted in a Convention country or a prescribed overseas jurisdiction by:
(i) a
person (the adopter) who is an Australian citizen at time of the
adoption; or
(ii) 2
persons jointly, only one of whom (the adopter) is an Australian
citizen at the time of the adoption; or
(iii) 2
persons jointly, both of whom (the adopters) are Australian
citizens at the time of the adoption; and
(b) an adoption
compliance certificate issued in that country is in force for the adoption; and
(c) under the
Intercountry Adoption regulations or the Bilateral Arrangements regulations, as
applicable, the adoption is recognised and effective for the laws of the
Commonwealth and each State and Territory; and
(d) the legal
relationship between the applicant and the individuals who were, immediately
before the adoption, the applicant’s parents has been terminated; and
(e) if subparagraph (a)(i)
or (ii) applies and the adopter is an Australian citizen under Subdivision A
or this Subdivision at the time of the adoption—the adopter satisfies subsection (3);
and
(f) if subparagraph (a)(iii)
applies and each adopter is an Australian citizen under Subdivision A or
this Subdivision at the time of the adoption—either or both of the
adopters satisfy subsection (3); and
(g) if the applicant
is aged 18 or over at the time the applicant made the application—the Minister
is satisfied that the applicant is of good character at the time of the
Minister’s decision on the application.
(3) An adopter satisfies
this subsection if the adopter 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 applicant made the application.
Definitions
(4) In
this section:
adoption compliance certificate:
(a) for an adoption
in accordance with the Hague Convention on Intercountry Adoption—has the same
meaning as in the Intercountry Adoption regulations; and
(b) for an adoption
in accordance with a bilateral arrangement—has the same meaning as in the
Bilateral Arrangements regulations.
Bilateral Arrangements regulations means the Family Law (Bilateral Arrangements—Intercountry
Adoption) Regulations 1998.
Convention country has the same meaning as in the Intercountry Adoption regulations.
Intercountry Adoption regulations means the Family Law (Hague Convention on Intercountry Adoption)
Regulations 1998.
prescribed overseas jurisdiction has the same meaning as in the Bilateral Arrangements regulations.
19D Minister’s decision
(1) If a person makes an
application under section 19C, the Minister must, by writing, approve or
refuse to approve the person becoming an Australian citizen.
(2) The Minister must not
approve the person becoming an Australian citizen unless the person is eligible
to become an Australian citizen under subsection 19C(2).
(3) The Minister may refuse
to approve the person becoming an Australian citizen despite the person being
eligible to become an Australian citizen under subsection 19C(2).
Identity
(4) 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.
National security
(5) If the person is not
covered by subsection (7), 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).
(6) If the person is covered
by subsection (7), the Minister must not approve the person becoming an
Australian citizen if the person:
(a) if subparagraph (7)(b)(i)
applies to the person:
(i) has
been convicted of a national security offence; or
(ii) subject
to subsection (7A), has been convicted of an offence against an Australian
law or a foreign law, for which the person has been sentenced to a period of
imprisonment of at least 5 years; or
(b) if subparagraph (7)(b)(ii)
applies to the person—has been convicted of a national security offence.
(7) A person is covered by
this subsection if:
(a) at the time the
person made the application under section 19C, the person:
(i) is
not a national of any country; and
(ii) is
not a citizen of any country; and
(b) either:
(i) the
person was born in Australia; or
(ii) the
person was born outside Australia and, at the time of the person’s birth, the
person had a parent who was an Australian citizen.
(7A) The Minister may decide
that subparagraph (6)(a)(ii) does not apply in relation to a person if,
taking into account the circumstances that resulted in the person’s conviction,
the Minister is satisfied that it would be unreasonable for that subparagraph
to apply in relation to the person.
Cessation of citizenship
(8) 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.
19E Registration
If the Minister
approves the person becoming an Australian citizen, the Minister must register
the person in the manner prescribed by the regulations.
19F Day citizenship begins
A person becomes an
Australian citizen under this Subdivision on the day on which the Minister
approves the person becoming an Australian citizen.
Subdivision B—Citizenship by conferral
19G Simplified outline
The following is a
simplified outline of this Subdivision:
You may be eligible
to become an Australian citizen under this Subdivision in 7 situations:
• you
satisfy the general eligibility criteria and have successfully completed a
citizenship test: see subsections 21(2) and (2A); or
• you have a
permanent or enduring physical or mental incapacity: see subsection 21(3);
or
• you are
aged 60 or over or have a hearing, speech or sight impairment: see subsection 21(4);
or
• you are
aged under 18: see subsection 21(5); or
• you were
born to a former Australian citizen: see subsection 21(6); or
• you were
born in Papua: see subsection 21(7); or
• you are a
stateless person: see subsection 21(8).
You must make an
application to become an Australian citizen. The Minister must approve or
refuse you becoming an Australian citizen.
You must be eligible
to be an Australian citizen to be approved. You may be refused citizenship even
if you are eligible.
The Minister may be
required to refuse your application on grounds relating to:
• non‑satisfaction
of identity: see subsection 24(3); or
• national
security: see subsections 24(4) to (4C); or
• non‑presence
in Australia: see subsection 24(5); or
• offences:
see subsection 24(6); or
• cessation
of citizenship: see subsection 24(7).
You may need to make
a pledge of commitment to become an Australian citizen.
20 Requirements for becoming a
citizen
A person becomes an
Australian citizen under this Subdivision if:
(a) the Minister
decides under subsection 24(1) to approve 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:
(i) at
the time the person made the application; and
(ii) at
the time of the Minister’s decision on the application; and
(c) satisfies the general
residence requirement (see section 22) or the special residence
requirement (see section 22A or 22B), or satisfies the defence service
requirement (see section 23), at the time the person made the application;
and
(d) understands the
nature of an application under subsection (1); and
(e) possesses a basic
knowledge of the English language; and
(f) has an adequate
knowledge of Australia and of the responsibilities and privileges of Australian
citizenship; 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.
(2A) Paragraphs (2)(d),
(e) and (f) are taken to be satisfied if and only if the Minister is satisfied
that the following apply:
(a) the person has
sat a test approved in a determination under section 23A;
(b) the person was
eligible to sit that test (worked out in accordance with that determination);
(c) the person
started that test within the period worked out in accordance with that
determination and completed that test within the period (the relevant
test period) worked out in accordance with that determination;
(d) the person
successfully completed that test (worked out in accordance with that
determination) within the relevant test period.
Permanent or enduring 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:
(i) at
the time the person made the application; and
(ii) at
the time of the Minister’s decision on the application; and
(c) satisfies the general
residence requirement (see section 22) or the special residence
requirement (see section 22A or 22B), or satisfies the defence service
requirement (see section 23), at the time the person made the application;
and
(d) has a permanent
or enduring physical or mental incapacity, at the time the person made the
application, that means the person:
(i) is
not capable of understanding the nature of the application at that time; or
(ii) is
not capable of demonstrating a basic knowledge of the English language at that
time; or
(iii) is
not capable of demonstrating an adequate knowledge of Australia and of the
responsibilities and privileges of Australian citizenship 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:
(i) at
the time the person made the application; and
(ii) at
the time of the Minister’s decision on the application; and
(c) understands the
nature of the application at the time the person made the application; and
(d) satisfies the general
residence requirement (see section 22) or the special residence
requirement (see section 22A or 22B), or satisfies the defence service
requirement (see section 23), at the time the person made the application;
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:
(a) is aged under 18
at the time the person made the application; and
(b) is a permanent
resident:
(i) at
the time the person made the application; and
(ii) at
the time of the Minister’s decision on 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) if the person is
aged 18 or over at the time the person made the application—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:
(a) the person was
born in Australia; and
(b) the person:
(i) is
not a national of any country; and
(ii) is
not a citizen of any country; and
(c) the person has:
(i) never
been a national of any country; and
(ii) never
been a citizen of any country; and
(d) the person:
(i) is
not entitled to acquire the nationality of a foreign country; and
(ii) is
not entitled to acquire the citizenship of a foreign country.
22 General residence requirement
(1) Subject to this section,
for the purposes of section 21 a person satisfies the general
residence requirement if:
(a) the person was
present in Australia for the period of 4 years immediately before the day the
person made the application; and
(b) the person was
not present in Australia as an unlawful non‑citizen at any time during that 4
year period; and
(c) the person was
present in Australia as a permanent resident for the period of 12 months
immediately before the day the person made the application.
Overseas absences
(1A) If:
(a) the person was
absent from Australia for a part of the period of 4 years immediately before
the day the person made the application; and
(b) the total period
of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a),
the person is taken to have been present in Australia during each period of
absence.
(1B) If:
(a) the person was
absent from Australia for a part of the period of 12 months immediately before
the day the person made the application; and
(b) the total period
of the absence or absences was not more than 90 days; and
(c) the person was a
permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c),
the person is taken to have been present in Australia as a permanent resident
during each period of absence.
Confinement in prison or psychiatric
institution
(1C) Subject to subsection (5A),
the person is taken not to satisfy paragraph (1)(a) if, at any time during
the 4 year period mentioned in that paragraph, the person was:
(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.
Partial exemption—person born in
Australia or former Australian citizen
(2) Paragraphs (1)(a)
and (b) do 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.
Ministerial discretion—administrative
error
(4A) For the purposes of paragraph (1)(b),
the Minister may treat a period as one in which the person was not present in
Australia as an unlawful non‑citizen if the Minister considers the person was
present in Australia during that period but, because of an administrative
error, was an unlawful non‑citizen during that period.
(5) For the purposes of paragraph (1)(c),
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—confinement in
prison or psychiatric institution
(5A) The Minister may decide
that subsection (1C) does not apply in relation to the person if, taking
into account the circumstances that resulted in the person’s confinement, the
Minister is satisfied that it would be unreasonable for that subsection to
apply in relation to the person.
Ministerial discretion—person in
Australia would suffer significant hardship or disadvantage
(6) For the purposes of paragraph (1)(c),
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—spouse, de facto partner
or surviving spouse or de facto partner of Australian citizen
(9) If the person is the
spouse, de facto partner or surviving spouse or de facto partner
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 or de facto partner 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) In subsection (9):
surviving spouse or de facto partner
of a person who has died means a person who was
the person’s spouse or de facto partner immediately before the
person died and who has not later become the spouse or de facto partner
of another person.
Ministerial discretion—person in an
interdependent relationship
(11) If, at the time the person
made the application, the person:
(a) holds a permanent
visa granted to the person because the person was in an interdependent
relationship with an Australian citizen; and
(b) is in that
interdependent relationship;
then, for the purposes of paragraph (1)(c),
the Minister may treat a period as one in which the person was present in
Australia as a permanent resident if:
(c) the person held
that visa during that period and the person was in that interdependent
relationship during that period; and
(d) the person was
not present in Australia during that period; and
(e) the person was a
permanent resident during that period; and
(f) the Minister is
satisfied that the person had a close and continuing association with Australia
during that period.
22A Special residence
requirement—persons engaging in activities that are of benefit to Australia
(1) Subject to this section,
for the purposes of section 21 a person (the applicant)
satisfies the special residence requirement if:
(a) the following
apply:
(i) the
applicant is seeking to engage in an activity specified under subsection 22C(1);
(ii) the
applicant’s engagement in that activity would be of benefit to Australia;
(iii) the
applicant needs to be an Australian citizen in order to engage in that activity;
(iv) in
order for the applicant to engage in that activity, there is insufficient time
for the applicant to satisfy the general residence requirement (see section 22);
and
(b) the head of an
organisation specified under subsection 22C(2), or a person whom the
Minister is satisfied holds a senior position in that organisation, has
given the Minister a notice in writing stating that the applicant has a
reasonable prospect of being engaged in that activity; and
(c) the applicant was
present in Australia for a total of at least 180 days during the period of 2
years immediately before the day the applicant made the application; and
(d) the applicant was
present in Australia for a total of at least 90 days during the period of 12
months immediately before the day the applicant made the application; and
(e) the applicant was
ordinarily resident in Australia throughout the period of 2 years immediately
before the day the applicant made the application; and
(f) the applicant
was a permanent resident for the period of 2 years immediately before the
day the applicant made the application; and
(g) the applicant was
not present in Australia as an unlawful non‑citizen at any time during the
period of 2 years immediately before the day the applicant made the application.
Ministerial discretion—alternative
residence requirements
(1A) The Minister may, by
writing, determine that paragraphs (1)(d) to (g) do not apply in relation
to the applicant if:
(a) the Minister is
satisfied that paragraphs (1)(a), (b) and (c) apply in relation to the
applicant; and
(b) the Minister is
satisfied that the applicant satisfies:
(i) paragraphs
21(2)(a), (b), (d), (e), (f), (g) and (h); or
(ii) paragraphs
21(3)(a), (b), (d), (e) and (f); or
(iii) paragraphs
21(4)(a), (b), (c), (e) and (f); and
(c) the applicant was
a permanent resident throughout the period of 90 days immediately before the
day the applicant made the application; and
(d) the applicant was
not present in Australia as an unlawful non‑citizen at any time during the
period of 180 days immediately before the day the applicant made the
application; and
(e) the applicant has
given the Minister an undertaking, in a form approved by the Minister under subsection (8),
that, if the applicant becomes an Australian citizen in circumstances where the
Minister exercises the power under this subsection:
(i) the
applicant will be ordinarily resident in Australia throughout the period of 2
years beginning on the day the applicant becomes an Australian citizen; and
(ii) the applicant
will be present in Australia for a total of at least 180 days during that 2‑year
period; and
(f) the applicant
has declared, in the undertaking, that the applicant understands the effect of
section 34A.
Note: See also subsections (6)
to (11).
(1B) If the Minister exercises
the power under subsection (1A) in relation to the applicant, then, for
the purposes of section 21, the applicant is taken to satisfy the special
residence requirement.
Confinement in prison or psychiatric
institution
(2) Subject to subsection (3),
the applicant is taken not to satisfy paragraph (1)(c) if, at any time
during the 2 year period mentioned in that paragraph, the applicant was:
(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 applicant.
(3) The Minister may decide
that subsection (2) does not apply in relation to the applicant if, taking
into account the circumstances that resulted in the applicant’s confinement,
the Minister is satisfied that it would be unreasonable for that subsection to
apply in relation to the applicant.
Ministerial discretion—administrative
error
(4) For the purposes of paragraph (1)(f)
or (1A)(c), the Minister may treat a period as one in which the applicant was a
permanent resident if the Minister considers that, because of an administrative
error, the applicant was not a permanent resident during that period.
(5) For the purposes of paragraph (1)(g)
or (1A)(d), the Minister may treat a period as one in which the applicant was
not present in Australia as an unlawful non‑citizen if the Minister considers
the applicant was present in Australia during that period but, because of an
administrative error, was an unlawful non‑citizen during that period.
Rules relating to power under subsection (1A)
(6) The power under subsection (1A)
may only be exercised by the Minister personally.
(7) The Minister does not
have a duty to consider whether to exercise the power under subsection (1A),
whether he or she is requested to do so by the applicant or by any other
person, or in any other circumstances.
(8) The Minister may, by
writing, approve a form for the purposes of paragraph (1A)(e).
(9) If the applicant becomes
an Australian citizen in circumstances where the Minister exercised the power
under subsection (1A), the Minister must cause to be tabled in each House
of the Parliament, within 15 sitting days of that House after the day the
applicant becomes an Australian citizen, a statement that:
(a) states that the
Minister has exercised the power under subsection (1A); and
(b) states the
activity covered by paragraph (1)(a); and
(c) sets out the
reasons for the Minister’s exercise of that power, including why the Minister
considers that engagement in that activity would be of benefit to Australia.
(10) However, a statement
under subsection (9) is not to include the name of the applicant.
(11) A determination under subsection (1A)
is not a legislative instrument.
22B Special residence
requirement—persons engaged in particular kinds of work requiring regular
travel outside Australia
(1) Subject to this section,
for the purposes of section 21 a person satisfies the special
residence requirement if:
(a) at the time the
person made the application, the person is engaged in work of a kind specified
under subsection 22C(3) and the person is required to regularly travel
outside Australia because of that work; and
(b) the following
apply:
(i) the
person was engaged in that kind of work for a total of at least 2 years during
the period of 4 years immediately before the day the person made the
application;
(ii) for
the whole or part of that 4 year period when the person was engaged in that
kind of work, the person regularly travelled outside Australia because of that
work; and
(c) the person was
present in Australia for a total of at least 480 days during the period of
4 years immediately before the day the person made the application; and
(d) the person was
present in Australia for a total of at least 120 days during the period of
12 months immediately before the day the person made the application; and
(e) the person was
ordinarily resident in Australia throughout the period of 4 years immediately
before the day the person made the application; and
(f) the person was a
permanent resident for the period of 12 months immediately before the day
the person made the application; and
(g) the person was
not present in Australia as an unlawful non‑citizen at any time during the
period of 4 years immediately before the day the person made the application.
Ministerial discretion—alternative
residence requirements
(1A) The Minister may, by
writing, determine that paragraphs (1)(c) to (g) do not apply in relation
to the person if:
(a) the Minister is
satisfied that paragraphs (1)(a) and (b) apply in relation to the person;
and
(b) the Minister is
satisfied that the person’s engagement in the kind of work concerned is of
benefit to Australia; and
(c) the Minister is
satisfied that the person satisfies:
(i) paragraphs
21(2)(a), (b), (d), (e), (f), (g) and (h); or
(ii) paragraphs
21(3)(a), (b), (d), (e) and (f); or
(iii) paragraphs
21(4)(a), (b), (c), (e) and (f); and
(d) the person was
present in Australia for a total of at least 180 days during the period of 2
years immediately before the day the person made the application; and
(e) the person was a
permanent resident throughout the period of 90 days immediately before the day
the person made the application; and
(f) the person was
not present in Australia as an unlawful non‑citizen at any time during the
period of 180 days immediately before the day the person made the application;
and
(g) the person has
given the Minister an undertaking, in a form approved by the Minister under subsection (8),
that, if the person becomes an Australian citizen in circumstances where the
Minister exercises the power under this subsection:
(i) the
person will be ordinarily resident in Australia throughout the period of 2
years beginning on the day the person becomes an Australian citizen; and
(ii) the
person will be present in Australia for a total of at least 180 days during
that 2‑year period; and
(h) the person has
declared, in the undertaking, that the person understands the effect of section 34A.
Note: See also subsections (6)
to (11).
(1B) If the Minister exercises
the power under subsection (1A) in relation to the person, then, for the
purposes of section 21, the person is taken to satisfy the special
residence requirement.
Confinement in prison or psychiatric
institution
(2) Subject to subsection (3),
the person is taken not to satisfy:
(a) paragraph (1)(c)
if, at any time during the 4‑year period mentioned in that paragraph; or
(b) paragraph (1A)(d)
if, at any time during the 2‑year period mentioned in that paragraph;
the person was:
(c) confined in a
prison; or
(d) 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.
(3) The Minister may decide
that subsection (2) does not apply in relation to the person if, taking
into account the circumstances that resulted in the person’s confinement, the
Minister is satisfied that it would be unreasonable for that subsection to
apply in relation to the person.
Ministerial discretion—administrative
error
(4) For the purposes of paragraph (1)(f)
or (1A)(e), the Minister may treat a period as one in which the person was a
permanent resident if the Minister considers that, because of an administrative
error, the person was not a permanent resident during that period.
(5) For the purposes of paragraph (1)(g)
or (1A)(f), the Minister may treat a period as one in which the person was not
present in Australia as an unlawful non‑citizen if the Minister considers the
person was present in Australia during that period but, because of an
administrative error, was an unlawful non‑citizen during that period.
Rules relating to power under subsection (1A)
(6) The power under subsection (1A)
may only be exercised by the Minister personally.
(7) The Minister does not
have a duty to consider whether to exercise the power under subsection (1A),
whether he or she is requested to do so by the person or by any other person,
or in any other circumstances.
(8) The Minister may, by
writing, approve a form for the purposes of paragraph (1A)(g).
(9) If the person becomes an
Australian citizen in circumstances where the Minister exercised the power
under subsection (1A), the Minister must cause to be tabled in each House
of the Parliament, within 15 sitting days of that House after the day the
person becomes an Australian citizen, a statement that:
(a) states that the
Minister has exercised the power under subsection (1A); and
(b) states the kind
of work covered by paragraph (1)(a); and
(c) sets out the
reasons for the Minister’s exercise of that power, including why the Minister
considers that engagement in that kind of work is of benefit to Australia.
(10) However, a statement
under subsection (9) is not to include the name of the person.
(11) A determination under subsection (1A)
is not a legislative instrument.
22C Special residence
requirement—legislative instruments
(1) The
Minister may, by legislative instrument, specify activities for the purposes of
subparagraph 22A(1)(a)(i).
(2) The
Minister may, by legislative instrument, specify organisations for the purposes
of paragraph 22A(1)(b).
(3) The Minister may, by
legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a).
23 Defence service requirement
Person who has completed relevant
defence service
(1) For the purposes of
section 21, a person satisfies the defence service requirement
if the person has completed relevant defence service.
Member of family unit of person who
has completed relevant defence service etc.
(2) If:
(a) a person (the defence
person) was granted, on or after 1 July 2007, a visa prescribed by
the regulations; and
(b) the defence
person has completed relevant defence service; and
(c) another person
(the relative) was a member of the family unit of the defence
person when the defence person was granted the visa; and
(d) the relative
holds a visa of that kind because the relative is a member of the family unit
of the defence person;
the relative satisfies the defence
service requirement for the purposes of section 21.
(3) If:
(a) a person (the defence
person) was granted, on or after 1 July 2007, a visa prescribed by
the regulations; and
(b) the defence
person dies while undertaking service in the Permanent Forces or the Reserves;
and
(c) another person
(the relative) was a member of the family unit of the defence
person when the defence person was granted the visa; and
(d) immediately
before the death of the defence person, the relative held a visa of that kind
because the relative was a member of the family unit of the defence person;
the relative satisfies the defence
service requirement for the purposes of section 21.
Definitions
(4) In this section:
member of the family unit of a person has the same meaning as in the Migration Act 1958.
Permanent Forces means the Permanent Navy, the Regular Army or the Permanent Air
Force.
relevant defence service: a person has completed relevant defence service if:
(a) the person has
undertaken a total of at least 90 days service in one or more of the Permanent
Forces (whether or not that service was continuous); or
(b) the person has
undertaken a total of at least 90 days service on which he or she was
required for, and attended and was entitled to be paid for, duty in one or more
of the Reserves (whether or not that service was continuous); or
(c) the person:
(i) was
discharged from service undertaken in one of the Permanent Forces or the
Reserves as medically unfit for that service; and
(ii) became
so unfit because of service undertaken in any of the Permanent Forces or the
Reserves.
Reserves means the Naval Reserve, the Army Reserve or the Air Force Reserve.
service: a person undertakes service in the Permanent Forces
or the Reserves only if the person is appointed, enlisted or transferred into
any of the Permanent Forces or the Reserves.
Note: For appointment, enlistment
or transfer into any of the Permanent Forces or the Reserves, see the Naval
Defence Act 1910, the Defence Act 1903 and the Air Force Act 1923.
23A Citizenship test
(1) The Minister must, by
written determination, approve a test for the purposes of subsection 21(2A)
(about general eligibility for citizenship).
Note: The test must be related to
the eligibility criteria referred to in paragraphs 21(2)(d), (e) and (f).
Successful completion of the test
(2) A determination under subsection (1)
must specify what amounts to successful completion of the test.
Eligibility criteria for sitting the
test
(3) A determination under subsection (1)
may set out the eligibility criteria a person must satisfy to be able to sit
the test.
Note: The eligibility criteria for
sitting the test cannot be inconsistent with this Act and in particular subsection 21(2)
(about the general eligibility criteria for becoming an Australian citizen).
(4) For the purposes of subsection (3),
the determination may provide that a person is not eligible to sit the test
unless the person is a permanent resident and the Minister is satisfied of the
identity of the person.
(5) Subsection (4) does
not limit subsection (3).
Period for sitting and completing the
test
(5A) A determination under subsection (1)
may provide for the period within which a person must start the test and for
the period within which a person must complete the test.
Other matters
(6) A determination under subsection (1)
may cover any other matter related to the test the Minister thinks
appropriate.
Determination not a legislative
instrument
(7) A determination made
under subsection (1) is not a legislative instrument.
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.
(1A) The Minister must not
approve the person becoming an Australian citizen unless the person is eligible
to become an Australian citizen under subsection 21(2), (3), (4), (5),
(6), (7) or (8).
(2) The Minister may refuse
to approve the person becoming an Australian citizen despite the person being
eligible to become an Australian citizen under subsection 21(2), (3), (4),
(5), (6) or (7).
(2A) If the Minister exercised
the power under subsection 22A(1A) or 22B(1A) in relation to the person,
the decision under subsection (1) of this section must be made by the
Minister personally.
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.
National security
(4) If the person is not
covered by subsection (4B), 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).
(4A) If the person is covered
by subsection (4B), the Minister must not approve the person becoming an
Australian citizen if the person:
(a) if subparagraph (4B)(b)(i)
applies to the person:
(i) has
been convicted of a national security offence; or
(ii) subject
to subsection (4C), has been convicted of an offence against an Australian
law or a foreign law, for which the person has been sentenced to a period of
imprisonment of at least 5 years; or
(b) if subparagraph (4B)(b)(ii)
applies to the person—has been convicted of a national security offence.
(4B) A person is covered by
this subsection if:
(a) at the time the
person made the application under section 21, the person:
(i) is
not a national of any country; and
(ii) is
not a citizen of any country; and
(b) either:
(i) the
person was born in Australia; or
(ii) the
person was born outside Australia and, at the time of the person’s birth, the
person had a parent who was an Australian citizen.
(4C) The Minister may decide
that subparagraph (4A)(a)(ii) does not apply in relation to a person if,
taking into account the circumstances that resulted in the person’s conviction,
the Minister is satisfied that it would be unreasonable for that subparagraph
to apply in relation to the person.
(4D) To avoid doubt, subsection (4A)
applies to a person who is eligible to become an Australian citizen under
subsection 21(8).
Person not present in Australia
(5) If:
(a) the person is
covered by subsection 21(2), (3) or (4); and
(aa) the Minister is
satisfied that the person did not satisfy the special residence requirement
referred to in section 22A or 22B; and
(b) the Minister did
not apply subsection 22(9) in relation to the person; and
(c) the Minister did
not apply subsection 22(11) 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.
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
or enduring physical or mental incapacity, at the time the person made the
application to become an Australian citizen, that means the person:
(i) is
not capable of understanding the nature of the application at that time; or
(ii) is
not capable of demonstrating a basic knowledge of the English language at that time;
or
(iii) is
not capable of demonstrating an adequate knowledge of Australia and of the
responsibilities and privileges of Australian citizenship 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 C—Resuming citizenship
28A Simplified outline
The following is a
simplified outline of this Subdivision:
You may be eligible
to become an Australian citizen under this Subdivision if you ceased to be
an Australian citizen under this Act or the old Act.
You must make an
application to become an Australian citizen again. The Minister must approve or
refuse you becoming an Australian citizen again.
You must be eligible
to be an Australian citizen again to be approved. You may be refused
citizenship again even if you are eligible.
The Minister may be required to refuse your application on grounds
relating to:
• non‑satisfaction of identity: see subsection 30(3); or
• national
security: see subsections 30(4) to (7).
You will be
registered if the Minister approves you becoming an Australian citizen again.
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, AA 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, 34A or 35 may apply to become an
Australian citizen again under Subdivision A, AA 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.
(1A) The Minister must not
approve the person becoming an Australian citizen again unless the person is
eligible to become an Australian citizen again under subsection 29(2) or
(3).
(2) The Minister may refuse
to approve the person becoming an Australian citizen again despite the person
being eligible to become an Australian citizen again under subsection 29(2)
or (3).
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.
National security
(4) If the person is not
covered by subsection (6), 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).
(5) If the person is covered
by subsection (6), the Minister must not approve the person becoming an
Australian citizen again if the person:
(a) if subparagraph (6)(b)(i)
applies to the person:
(i) has
been convicted of a national security offence; or
(ii) subject
to subsection (7), has been convicted of an offence against an Australian
law or a foreign law, for which the person has been sentenced to a period of
imprisonment of at least 5 years; or
(b) if subparagraph (6)(b)(ii)
applies to the person—has been convicted of a national security offence.
(6) A person is covered by
this subsection if:
(a) at the time the
person made the application under section 29, the person:
(i) is
not a national of any country; and
(ii) is
not a citizen of any country; and
(b) either:
(i) the
person was born in Australia; or
(ii) the
person was born outside Australia and, at the time of the person’s birth, the
person had a parent who was an Australian citizen.
(7) The Minister may decide
that subparagraph (5)(a)(ii) does not apply in relation to a person if,
taking into account the circumstances that resulted in the person’s conviction,
the Minister is satisfied that it would be unreasonable for that subparagraph
to apply in relation to the person.
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,
AA 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 3—Cessation of Australian citizenship
32A Simplified outline
The following is a
simplified outline of this Division:
There are 5 ways in
which you can cease to be an Australian citizen:
• you may
renounce your Australian citizenship: see section 33; or
• if you did
not automatically become an Australian citizen, the Minister can revoke your
citizenship in circumstances involving offences or fraud: see section 34;
or
• if you did
not automatically become an Australian citizen and the Minister exercised the
power under subsection 22A(1A) or 22B(1A), the Minister can revoke your
citizenship in circumstances involving a failure to comply with special
residence requirements: see section 34A; or
• you serve
in the armed forces of a country at war with Australia: see section 35; or
• if you are
the child of a responsible parent who ceases to be an Australian citizen, the
Minister can revoke your citizenship in some situations: see section 36.
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—offences
or fraud
Citizenship by descent or for persons
adopted in accordance with the Hague Convention on Intercountry Adoption or a
bilateral arrangement
(1) The Minister may, by
writing, revoke a person’s Australian citizenship if:
(a) the person is an
Australian citizen under Subdivision A or AA 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 Minister may
revoke the person’s Australian citizenship under that subsection only because
of the application of subparagraph (2)(b)(ii); 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 or 243, or former section 244 (as in force before its repeal by the Same‑Sex
Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act
2008), 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.
34A Revocation by Minister—special
residence requirements
(1) 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; and
(b) the person became
an Australian citizen in circumstances where the Minister exercised the power
under subsection 22A(1A) or 22B(1A); and
(c) the Minister is
satisfied that:
(i) the person
will not be, or was not, ordinarily resident in Australia throughout the period
of 2 years beginning on the day the person became an Australian citizen; or
(ii) the
person will not be, or was not, present in Australia for a total of at least
180 days during that 2‑year period.
(2) However, the Minister
must not decide under subsection (1) to revoke a person’s Australian
citizenship if 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.
(3) The power under subsection (1)
may only be exercised by the Minister personally.
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.
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, 34A 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 4—Evidence 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 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 or 34A 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 5—Personal identifiers
Subdivision A—Obtaining personal identifiers
40 Request for personal identifiers
(1) For the purposes of the
Minister being satisfied of the identity of:
(a) a person in
relation to an application under this Part; or
(b) a person who has sought
to sit a test approved in a determination under section 23A;
the following persons may request the
person, in writing, to provide one or more specified personal identifiers:
(c) the Minister;
(d) a person
authorised under subsection (3);
(e) 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)(d).
(4) The Minister may, by
legislative instrument, authorise a class of persons for the purposes of paragraph (1)(e).
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 B—Obligations 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.
(1A) This section does not
apply if the person believes on reasonable grounds that the access is necessary
to prevent or lessen a serious and imminent threat to the life or health of the
person or of any other person.
Note: A defendant bears an
evidential burden in relation to the matter in subsection (1A) (see
subsection 13.3(3) of the Criminal Code).
(2) This section does not
apply if the access is through:
(a) a disclosure that
is a permitted disclosure within the meaning of section 43; or
(b) a disclosure to
which section 43 does not apply because of the operation of subsection 43(1A).
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) either or both 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) the purposes of
this Act or the regulations or of the Migration Act 1958 or the
regulations made under that Act;
(h) complying with
Australian laws.
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.
(1A) If:
(a) a disclosure of
identifying information is made to a person who is not an entrusted person; and
(b) the disclosure is
a permitted disclosure;
this section does not apply in relation
to any further disclosure of that identifying information by a person who is
not an entrusted person.
Note 1: A defendant bears an
evidential burden in relation to the matter in subsection (1A) (see
subsection 13.3(3) of the Criminal Code).
Note 2: Australian Privacy Principle 6
may apply to further disclosures of that identifying information by a
person who is not an entrusted person.
(1B) This
section does not apply if the person believes on reasonable grounds that the
disclosure is necessary to prevent or lessen a serious and imminent threat to
the life or health of the person or of any other person.
Note: A defendant bears an
evidential burden in relation to the matter in subsection (1B) (see
subsection 13.3(3) of the Criminal Code).
(2) A
permitted disclosure is a disclosure that:
(b) is for the
purposes of this Act or the regulations or of the Migration Act 1958 or
the regulations made under that 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
(da) is to an agency of
the Commonwealth, a State or a Territory in order to verify that a person is an
Australian citizen; 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
(ea) is reasonably
necessary for the enforcement of the criminal law of the Commonwealth, a State
or a Territory; or
(eb) is required by an
Australian law; 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 Information Commissioner or the Ombudsman
relating to action taken by the Department; or
(h) takes place with
the written consent of the person to whom the identifying information in
question relates.
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.
Exception
(2A) If:
(a) a disclosure of
identifying information is made to a person who is not an entrusted person; and
(b) the disclosure is
a permitted disclosure within the meaning of section 43;
this section does not apply in relation
to any modification or impairment of that identifying information by a person
who is not an entrusted person.
Note: A defendant bears an
evidential burden in relation to the matter in subsection (2A) (see
subsection 13.3(3) of the Criminal Code).
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 3—Other matters
Division 1—Bogus documents
45A Prohibition on, and forfeiture
of, bogus documents
(1) A person (whether a
citizen or non‑citizen) must not give a bogus document to the Minister, a
person acting under a delegation or authorisation of the Minister, a tribunal
or any other person or body performing a function or purpose under, or in
relation to, this Act (the official), or cause such a document to
be so given.
(2) A bogus document given
in contravention of subsection (1) is forfeited to the Commonwealth.
45B Seizure of bogus documents
(1) If the Minister
reasonably suspects that a document is forfeited under subsection 45A(2),
then the Minister may seize the document.
(2) As soon as practicable
after seizing the document, the Minister must give written notice of the
seizure to the person who gave the document to the official under subsection 45A(1).
(3) The
notice must:
(a) identify the
document; and
(b) state that the
document has been seized; and
(c) specify the
reason for the seizure; and
(d) state that the
document will be condemned as forfeited unless the person institutes
proceedings against the Commonwealth before the end of the period specified in
the notice:
(i) to
recover the document; or
(ii) for a
declaration that the document is not forfeited.
(4) For the purposes of paragraph (3)(d),
the period must:
(a) start on the date
of the notice; and
(b) end 90 days after
that date.
45C Document condemned as forfeited
(1) If a document is seized
under subsection 45B(1), then:
(a) the person who
gave the document to the official under subsection 45A(1); and
(b) if that person is
not the owner of the document—the owner;
may, subject to paragraph (2)(b),
institute proceedings in a court of competent jurisdiction:
(c) to recover the
document; or
(d) for a declaration
that the document is not forfeited.
(2) The proceedings:
(a) may be instituted
even if the seizure notice required to be given under subsection 45B(2) in
relation to the document has not yet been given; and
(b) may only be
instituted before the end of the period specified in the seizure notice.
(3) If, before the end of
the period specified in the seizure notice, the person or owner does not
institute the proceedings, the document is condemned as forfeited to the
Commonwealth immediately after the end of that period.
(4) If, before the end of
the period specified in the seizure notice, the person or owner does institute
the proceedings, the document is condemned as forfeited to the Commonwealth at
the end of the proceedings unless there is:
(a) an order for the
person or owner to recover the document; or
(b) a declaration
that the document is not forfeited.
(5) For the purposes of subsection (4),
if the proceedings go to judgment, they end:
(a) if no appeal
against the judgment is lodged within the period for lodging such an appeal—at
the end of that period; or
(b) if an appeal
against the judgment is lodged within that period—when the appeal lapses or is
finally determined.
45D Dealing with a document after it
is condemned as forfeited
(1) If, under section 45C,
a document is condemned as forfeited to the Commonwealth, it must be dealt with
or disposed of (including by being given to another person) in accordance with
any direction given by the Minister.
(2) If the Minister considers
that the document may be relevant to proceedings in a court or tribunal, then
the Minister:
(a) must give a
direction for the safe keeping of the document; and
(b) must authorise
access to the document for the purposes of those proceedings.
(3) A direction given under
this section is not a legislative instrument.
Division 2—Other
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.
(1A) For applications made under
section 21 by persons who, in order to be eligible to become an Australian
citizen under subsection 21(2), must have sat a test approved in a
determination under section 23A, the fee prescribed by the regulations may
include a component that relates to the sitting of that test.
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.
Children aged under 16
(2A) An application under a
provision of this Act by a child aged under 16 must be set out:
(a) on a form that
contains no other application; or
(b) on a form that
also contains an application by 1 responsible parent of the child.
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.
51A Things seized under Crimes Act
search warrant and information about such things
(1) This section applies to
the following:
(a) a thing seized (warrant
material) under a search warrant issued under Division 2 of Part 1AA
of the Crimes Act 1914;
(b) information (warrant
information) that is about, or obtained from, warrant material.
(2) A constable or
Commonwealth officer who, under subsection 3ZQU(1) of the Crimes Act
1914, may use or make available warrant material, is authorised to make
available warrant material or warrant information:
(a) to a person
covered by subsection (4); and
(b) for a purpose
mentioned in subsection (3).
(3) A person covered by subsection (4)
is authorised to receive and use warrant material and warrant information, or
make it available to another person covered by subsection (4), for the
following purposes:
(a) making a
decision, or assisting in making a decision, to approve or refuse to approve a
person becoming an Australian citizen;
(b) making a
decision, or assisting in making a decision, to revoke a person’s Australian
citizenship;
(c) making a
decision, or assisting in making a decision, to cancel an approval given to a
person under section 24.
Note: Subsection 3ZQU(4) of
the Crimes Act 1914 contemplates that another law of the Commonwealth
may require or authorise the use or making available of a document or other
thing to persons, or for purposes, in addition to those listed in subsection 3ZQU(1)
of that Act.
(4) The following persons
are covered by this subsection:
(a) the Minister;
(b) the Secretary;
(c) an APS employee
in the Department whose duties include making decisions, or assisting in making
decisions, in relation to Australian citizenship.
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;
(aa) a decision under
section 19D 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, if:
(a) the Minister
makes a decision under section 24 to refuse to approve a person becoming
an Australian citizen; and
(b) the Minister’s
reasons for the decision did not refer to the eligibility ground in subsection 21(8)
(about statelessness); and
(c) the person was
aged 18 or over at the time the person made the application to become an
Australian citizen;
a person (the applicant)
cannot apply for review of that decision unless the applicant is a permanent
resident.
(3) For the purposes of the
Administrative Appeals Tribunal reviewing a decision of a kind referred to in paragraph (1)(b):
(a) the Tribunal must
not exercise the power under subsection 22A(1A) or 22B(1A); and
(b) the Tribunal must
not review any exercise of the power or any failure to exercise the power.
53 Delegation
(1) 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.
(2) However, subsection (1)
does not apply in relation to the function under subsection 23A(1) (about
approval of citizenship test).
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.