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2004-2005 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES AUSTRALIAN CITIZENSHIP (TRANSITIONALS AND CONSEQUENTIALS) BILL 2005 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Citizenship and Multicultural Affairs, the Honourable John Cobb MP)Index] [Search] [Download] [Bill] [Help]2 AUSTRALIAN CITIZENSHIP (TRANSITIONALS AND CONSEQUENTIALS) BILL 2005 OUTLINE 1. The Australian Citizenship (Transitionals and Consequentials) Bill 2005 (`the Bill') makes transitional arrangements and consequential amendments to various Acts which are necessary for the implementation of the Australian Citizenship Bill 2005 (`the new Act'). 2. The Australian Citizenship Act 1948 (`the old Act') is repealed by the Bill. 3. The Bill and explanatory memorandum should be considered in conjunction with the new Act and the explanatory memorandum. 4. Schedule 1 to the Bill makes consequential amendments to various Acts, including: · substituting references to the old Act with new references to the short title of the new Act, that is `the Australian Citizenship Act 2005'; · removing references to `Australian protected persons', an expression which is not used in the new Act or any other Act or delegated legislation; · amending the Commonwealth Electoral Act 1918 and Higher Education Funding Act 1988 to update references to the manner in which citizenship acquisition is amended by the new Act; · amending the Electronic Transactions Act 1999 in relation to exempt citizenship documents. 5. Schedule 2 to the Bill amends the Immigration (Education) Act 1971 to remove one of the ways the cessation date is calculated, when there is an obligation by the Australian Government to provide English language tuition to certain visa holders. 6. Schedule 3 to the Bill provides various application and transitional provisions relating to the new Act including: · deeming that persons who were Australian citizens under the old Act are Australian citizens under the new Act; · expanding the meaning of certain terms used in the new Act; · making clear the application of the new Act to the acquisition of citizenship by birth, descent or conferral, and the revocation of citizenship by conferral; · deeming old applications and declarations made under the old Act and which are undecided immediately before the commencement of the new Bill be applications under the new Act;
3 · arrangements for persons who were granted a certificate of citizenship under the old Act, yet have not become Australian citizens immediately before the commencement of the new Act; and · transitional and application provisions relating to the amendments made by Schedule 1 to the Bill. FINANCIAL IMPACT STATEMENT 7. The amendments contained in the Bill have no financial impact. AUSTRALIAN CITIZENSHIP (TRANSITIONALS AND CONSEQUENTIALS) ACT 2005 NOTES ON CLAUSES Clause 1 Short Title 8. The short title by which this Act may be cited is the Australian Citizenship (Transitionals and Consequentials) Act 2005. Clause 2 Commencement 9. This sets out the commencement arrangements for provisions of the Act. Each provision of the Act specified in column 1 of the table in subclause 2(1) commences, or is taken to have commenced, in accordance with column 2. The commencement of provisions specified in column 1 is also affected by any other corresponding statement in column 2. 10. Item 1 of the table provides that sections 1, 2 and 3 of the Act commence on the day on which the Act receives Royal Assent. 11. Schedule 1 and 2 to the Act commence at the same time as sections 3 to 54 of the Australian Citizenship Act 2005 (`the new Act'). 12. Subclause 2(2) provides that column 3 of the table in subclause 2(1) is for additional commencement information that is not part of the Act, and which may be added to or edited in any published version of the Act. Clause 3 Schedule(s) 13. This clause provides that each Act specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned. In addition, any other item in a Schedule to the Act has effect according to its terms.
4 SCHEDULE 1 - Consequential amendments PART 1 - Amendments Administrative Appeals Tribunal Act 1975 Item 1 Paragraph 21AA(5)(c) 14. This item omits the reference to the old Act in paragraph 21AA(5)(c) of the Administrative Appeals Tribunal Act 1975 and substitutes a reference to the new Act. The only effect of this amendment is to change this reference. Age Discrimination Act 2004 Item 2 Paragraph 43(2)(a) 15. This item repeals paragraph 43(2)(a) of the Age Discrimination Act 2004, which refers to the old Act, and substitutes a new paragraph which refers to the new Act. The only effect of this amendment is to change this reference. Air Navigation Act 1920 Item 3 Subsection 11A(4) (definition of Australian citizen) 16. This item repeals the definition of Australian citizen in subsection 11A(4) of the Air Navigation Act 1920, which contains a reference to the old Act, and substitutes a new definition which refers to the new Act. The only effect of this amendment is to change this reference. Australian Passports Act 2005 Item 4 Paragraph 53(3)(b) 17. This item repeals paragraph 53(3)(b) of the Australian Passports Act 2005, which contains a reference to the old Act, and substitutes new paragraph (b) which refers to the new Act. The only effect of this amendment is to change this reference. Australian Security Intelligence Organisation Act 1979 Item 5 Section 35 (paragraph (c) of the definition of prescribed administrative action) 18. This item omits the reference to the old Act in paragraph (c) of the definition of `prescribed administrative action' in section 35 of the Australian Security Intelligence Organisation Act 1979 and substitutes a reference to the new Act. The only effect of this amendment is to change this reference.
5 Circuit Layout Act 1989 Item 6 Section 5 (definition of Australian protected person) This item repeals the definition of `Australian protected person' in section 5 of the Circuit Layout Act 1989. This expression was defined as having the same meaning as in regulation 5 of the Australian Citizenship Regulations 1960. The expression `Australian protected person' is redundant having been removed from the Australian Citizenship Regulations 1960 by Statutory Rules 1987 No. 87 and is not otherwise used in citizenship legislation. Item 7 Section 5 (paragraph (a) of the definition of eligible person) 19. This item omits the words `citizen, an Australian protection' and substitutes the word `citizen' in paragraph (a) of the definition of `eligible person' in section 5 of the Circuit Layout Act 1989. The expression `Australian protected person' is redundant having been removed from the Australian Citizenship Regulations 1960 by Statutory Rules 1987 No. 87 and is not otherwise used in citizenship legislation. Civil Aviation (Carriers' Liability) Act 1959 Item 8 Section 5 (definition of Australian citizen) 20. This item repeals the definition of `Australian citizen' in section 5 of the Civil Aviation (Carriers' Liability) Act 1959, which contains a reference to the old Act, and substitutes a new definition which refers to the new Act. The only effect of this amendment is to change this reference. Commonwealth Electoral Act 1918 Item 9 Paragraph 99A(1)(a) 21. This item repeals paragraph 99(1)(a) of the Commonwealth Electoral Act 1918, which contains a reference to the old Act, and substitutes new paragraph (a) which refers to the new Act. The only effect of this amendment is to change this reference. Item 10 Subparagraph 99A(4)(d)(i) 22. This item omits the words `for a certificate of Australian citizenship' in subparagraph 99A(4)(d)(i) of the Commonwealth Electoral Act 1918 with the words `to become an Australian citizen'. 23. This amendment reflects the clarification of the process by which Australian citizenship by conferral is acquired and is evidenced in the new Act. 24. The Australian Citizenship Act 2005 clarifies this process (see Subdivision B, Division 2 of Part 2 `Acquisition of Australian citizenship by application'). Under the old Act the Minister could grant a certificate of Australian citizenship to a person provided certain requirements under that Act were met. In practice the `grant of a certificate' was the approval of an application to become an Australian citizen. Once approval had been given to their application, a person became an Australian citizen on the making of the pledge of commitment before the Minister or delegate.
6 25. Evidence of Australian citizenship may be applied for and provided in the form of a written notice (see Division 4 of Part 2 `Evidence of Australian citizenship'). The concept of certificates of Australian citizenship is not provided for in the new Act making references in other legislation redundant. Item 11 Paragraph 99A(6)(b) 26. This item repeals paragraph 99A(6)(b) of the Commonwealth Electoral Act 1918 and substitutes a new paragraph. It removes the words `certificate of Australian citizenship' and refers to the person's application to become an Australian citizen. Item 12 Subsection 99A(7) 27. This item omits the words `a certificate of Australian citizenship' in subsection 99A(7) of the Commonwealth Electoral Act 1918 with the words `approval to become an Australian citizen'. 28. This amendment reflects the clarification of the process by which Australian citizenship by conferral is acquired by a person and is evidenced in the new Act 29. The Australian Citizenship Act 2005 clarifies this process (see Subdivision B, Division 2 of Part 2 `Acquisition of Australian citizenship by application'). Evidence of Australian citizenship may be applied for and provided in the form of a written notice (see Division 4 of Part 2 `Evidence of Australian citizenship'). The concept of certificates of Australian citizenship is not provided for in the new Act making references in other legislation redundant. Item 13 Subsection 99A(7) 30. This item omits the words `the certificate of Australian citizenship' in subsection 99A(7) of the Commonwealth Electoral Act 1918 with the words `the approval'. 31. This amendment reflects the clarification of the process by which Australian citizenship by conferral is acquired by a person and is evidenced in the new Act. 32. The Australian Citizenship Act 2005 clarifies this process (see Subdivision B, Division 2 of Part 2`Acquisition of Australian citizenship by application'). Evidence of Australian citizenship may be applied for and provided in the form of a written notice (see Division 4 of Part 2 `Evidence of Australian citizenship'). The concept of certificates of Australian citizenship is not provided for in the new Act making references in other legislation redundant. Item 14 Subsection 99A(8) 33. This item omits the words `certificate of Australian citizenship' in subsection 99A(8) of the Commonwealth Electoral Act 1918 with the words `approval to become an Australian citizen'. 34. This amendment reflects the clarification of the process by which Australian citizenship by conferral is acquired by a person and is evidenced in the new Act.
7 35. The Australian Citizenship Act 2005 clarifies this process (see Subdivision B, Division 2 of Part 2 `Acquisition of Australian citizenship by application'). Evidence of Australian citizenship may be applied for and provided in the form of a written notice (see Division 4 of Part 3 `Evidence of Australian citizenship'). The concept of certificates of Australian citizenship is not provided for in the new Act making references in other legislation redundant. Item 15 Paragraph 170(1)(c) 36. This item omits the words `having been granted a certificate of Australian citizenship' from paragraph 170(1)(c) of the Commonwealth Electoral Act 1918. 37. This amendment reflects the clarification of the process by which Australian citizenship by conferral is acquired by a person and is evidenced in the new Act 38. The Australian Citizenship Act 2005 clarifies this process (see Subdivision B, Division 2 of Part 2 `Acquisition of Australian citizenship by application'). Evidence of Australian citizenship may be applied for and provided in the form of a written notice (see Division 4 of Part 2`Evidence of Australian citizenship'). The concept of certificates of Australian citizenship is not provided for in the new Act making references in other legislation redundant. Item 16 Subparagraph 170(1)(c)(ii) 39. This item repeals subparagraph 170(1)(c)(ii) of the Commonwealth Electoral Act 1918. 40. This amendment reflects changes to the process by which Australian citizenship is acquired by a person and is evidenced in the new Act. 41. The Australian Citizenship Act 2005 clarifies this process (see Subdivision B, Division 2 of Part 2 `Acquisition of Australian citizenship by application'). Evidence of Australian citizenship may be applied for and provided in the form of a written notice (see Division 4 of Part 2 `Evidence of Australian citizenship'). The concept of certificates of Australian citizenship is not provided for in the new Act making references in other legislation redundant. Commonwealth Serum Laboratories Act 1961 Item 17 Subsection 19B(1) (definition of Australian citizen) 42. This item repeals the definition of Australian citizen in subsection 19B(1) of the Commonwealth Serum Laboratories Act 1961, which contains a reference to the old Act, and substitutes a new definition which refers to the new Act. The only effect of this amendment is to change this reference. Consular Privileges and Immunities Act 1972 Item 18 Subsection 3(1) (definition of Australian citizen) 43. This item repeals the definition of Australian citizen in subsection 3(1) of the Consular Privileges and Immunities Act 1972. The definition includes a person who, by virtue of regulations in force under the Nationality and Citizenship Act 1948-1967, is, for the purposes
8 of that Act, under the protection of the Australian Government. The expression `Australian protected person' is redundant having been removed from the Australian Citizenship Regulations 1960 by Statutory Rules 1987 No. 87 and is not otherwise currently used in citizenship legislation. Copyright Act 1968 Item 19 Subsection 10(1) (definition of Australian protected person) 44. This item repeals the definition of Australian protected person in subsection 10(1) of the Copyright Act 1968. This expression involves a person who, by virtue of regulations in force under the Nationality and Citizenship Act 1948-1967, is, for the purposes of that Act, under the protection of the Australian Government. The expression `Australian protected person' is redundant having been removed from the Australian Citizenship Regulations 1960 by Statutory Rules 1987, No. 87, and is not otherwise currently used in citizenship legislation. Item 20 Subsection 32(4) (definition of qualified person) Item 21 Section 84 (paragraph (a) of the definition of qualified person) Item 22 Section 248A(1) (definition of qualified person) 45. These items omit the reference to Australian protected person' in subsection 32(4), section 84 (paragraph (a) of the definition of qualified person) and section 248A(1). The expression is referred to as part of the meaning of qualified person. This expression involves a person who, by virtue of regulations in force under the Nationality and Citizenship Act 1948-1967, is, for the purposes of that Act, under the protection of the Australian Government. The expression `Australian protected person' is redundant having been removed from the Australian Citizenship Regulations 1960 by Statutory Rules 1987 No. 87 and is not otherwise currently used in citizenship legislation. Crimes Act 1914 Item 23 Paragraph 85ZZH(d) 46. This item omits the reference to the old Act in paragraph 85ZZH(d) of the Crimes Act 1914 and substitutes a reference to the new Act. The only effect of this amendment is to change this reference. Criminal Code Act 1995 Item 24 Subsection 72.8(2) of the Criminal Code 47. This item omits the reference to the old Act in paragraph subsection 72.8(2) of the Criminal Code and substitutes a reference to the new Act. The only effect of this amendment is to change this reference.
9 Item 25 Paragraph 115.7 of the Criminal Code 48. This item repeals paragraph 115.7 of the Criminal Code, which contains a reference to the old Act, and substitutes new paragraph (a) which refers to the new Act. The only effect of this amendment is to change this reference. Diplomatic Privileges and Immunities Act 1967 Item 26 Subsection 4(1) (definition of Australian citizen) 49. This item repeals the definition of Australian citizen in subsection 4(1) of the Consular Privileges and Immunities Act 1972. The definition includes a person who, by virtue of regulations in force under the Nationality and Citizenship Act 1948-1967, is, for the purposes of that Act, under the protection of the Australian Government. The expression `Australian protected person' is redundant having been removed from the Australian Citizenship Regulations 1960 by Statutory Rules 1987 No. 87 and is not otherwise currently used in citizenship legislation. Electronic Transactions Act 1999 Item 27 Clause 2 of Schedule 1 50. This item repeals clause 2 of Schedule 1 to the Electronic Transactions Act 1999 and substitutes a new clause 2. 51. Schedule 1 lists migration and citizenship documents which are exempt from being subject to section 11 of the Electronic Transactions Act 1999 (see subsection 11(5)). Section 11 generally provides that a person may satisfy a requirement or permission to produce a document that is in the form of paper by using an electronic communication that complies with a number of requirements specified in this section. The exemption of the specified migration and citizenship documents makes it a requirement that only paper versions will be accepted. This is particularly relevant to citizenship in determining whether a person is an Australian citizen, the operation of citizenship law relating to applying for citizenship or evidence of citizenship, the cancellation, renunciation or revocation of citizenship, or the keeping of a register of citizenship. 52. The effect of new clause 2 is limited to amendments reflecting the clarification of the process when Australian citizenship by conferral is acquired by a person and is evidenced in the new Act. The Australian Citizenship Act 2005 clarifies this process (see Subdivision B, Division 2 of Part 2 `Acquisition of Australian citizenship by application'). Evidence of Australian citizenship may be applied for and provided in the form of a written notice (see Division 4 of Part 2 `Evidence of Australian citizenship'). The concept of certificates of Australian citizenship is not provided for in the new Act making references in other legislation redundant. Financial Transaction Reports Act 1988 Item 28 Subsection 3(1) (definition of citizenship certificate) 53. This item inserts the word "notice" after the word "declaration".
1 0 Item 29 Subsection 3(1) (before paragraph (a) of the definition of citizenship certificate) 54. This item inserts new paragraph (aa) which refers to the new Act in the definition of citizenship certificate in subsection 3(1) of the Financial Transaction Reports Act 1988 (`FTRA'). 55. The defined expression `citizenship certificate' in the FTRA has a broader meaning than the defined expression `certificate of Australian citizenship' in the old Act which is limited to the grant of such a certificate under that Act. The expression `citizenship certificate' is defined in the FTRA to mean a certificate, declaration or other instrument in respect of the person's status as an Australian citizen or British subject, or otherwise in respect of the person's nationality, issued under the new Act or the Australian Citizenship Act 1948. Item 30 Subsection 3(1) paragraphs (b) and (c) of the definition of citizenship certificate) 56. This item repeals the above mentioned paragraphs. Item 31 Subsection 3(1) (definition of citizenship certificate) 57. This item omits the words "under any" and substitutes the words "under either". Higher Education Funding Act 1988 Item 32 Section 3 (definition of permanent resident) 58. This item repeals the definition of `permanent resident' in section 3 of the Higher Education Funding Act 1988 (`HEFA'), which contains a reference to the old Act, and substitutes a new definition which refers to the new Act. The only effect of this amendment is to change this reference. Item 33 Section 3 (definition of permanent visa) 59. This item repeals the definition of `permanent visa' in section 3 of the HEFA, which contains a reference to the old Act, and substitutes a new definition which refers to the Migration Act 1958. The only effect of this amendment is to change this reference. Item 34 Subsection 41(3) Item 35 Paragraph 98B(1)(b) Item 36 Paragraph 98V(b) Item 37 Subparagraph 101(1)(d)(ii)
1 1 60. These items make identical amendments to subsection 41(3), paragraphs 98B(1)(b) and 98V(b), and subparagraph 101(1)(d)(ii) of the HEFA. The effect of these amendments is to substitute old references to the old Act, the process under that Act of applying for a certificate of Australian citizenship and making the pledge of commitment as a citizen of the Commonwealth of Australia, with new references to the new Act and the process by which a person applies for Australian citizenship and makes the required pledge. These amendments have no substantive effect. Legislative Instruments Act 2003 Item 38 Subsection 44(2) (table item 1) 61. This item repeals item 1 of the table in subsection 44(2) of the Legislative Instruments Act 2003 (`LIA') which refers to certain declarations under the old Act and substitutes a new item which refers to the new Act. The only effect of this amendment is to change this reference. Migration Act 1958 Item 39 Paragraph 336D(2)(g) 62. This item omits the reference to the old Act in paragraph 336D(2)(g) of the Migration Act 1958 and substitutes a reference to the new Act. The only effect of this amendment is to change this reference. Qantas Sale Act 1992 Item 40 Subsection 7(7) (definition of Australian citizen) 63. This item repeals the definition of Australian citizen in subsection 7(7) of the Qantas Sale Act 1992, which contains a reference to the old Act, and substitutes a new definition which refers to the new Act. The only effect of this amendment is to change this reference. Veterans' Entitlements Act 1986 Item 41 Subsection 5G(1AA) (note 2) 64. This item omits the reference to the old Act in note 2 in subsection 5G(1AA) of the Veterans' Entitlements Act 1986 and substitutes a reference to the new Act. The only effect of this amendment is to change this reference. Part 2--Repeal Australian Citizenship Act 1948 Item 42 The whole of the Act 65. Repeal the Act.
1 2 SCHEDULE 2 - Other amendments Immigration (Education) Act 1971 Item 1 Paragraph 4D(1)(c) and (d) 66. This item repeals paragraph 4D(1)(c) and (d). Paragraph 4D(1)(c) is effectively substituted with the same provision which states "if the person fails to commence an approved English course within the period of 12 months starting on the visa commencement date". 67. This item also repeals paragraph 4D(1)(d) of the Immigration (Education) Act 1971. Section 4D of this Act specifies different ways to calculate the date when the Australian Government's obligation to provide, or arrange the provision of English language tuition to certain permanent visa holders ceases. Following the amendment made by this item, the Australian Government's obligation to provide this tuition only ceases when one of the following occurs: · it has been determined that the person has functional English language skills; or · the person fails to register in an approved English course within three months of the commencement of their visa; or · the person fails to commence an approved English course within 12 months of the commencement of their visa. 68. Repealed paragraph 4D(1)(d) gave an additional option that a period of 36 months had expired. 69. The abolition of the 36 month limit on the completion of English language tuition was announced in the 2004 Budget and has been effected through policy pending repeal of paragraph 4D(1)(c) and (d).
1 3 SCHEDULE 3 - Application and transitional provisions PART 1 - Provisions relating to the enactment of the Australian Citizenship Act 2005 Item 1 Definitions 70. This item provides terms which are defined for Part 1 of Schedule 3 to this Act. The expression `commencement day' is defined as meaning the day on which sections 3 to 54 of the new Act commence. The terms `new Act' and `old Act' are defined as meaning respectively the Australian Citizenship Act 2005 and the Australian Citizenship Act 1948 respectively. Item 2 Australian citizens under the old Act are taken to be Australian citizens under the new Act 71. This item provides that persons who were Australian citizens under the old Act immediately before the commencement of the new Act are Australian citizens under the new Act. 72. Subitem (2) contains a table which provides that persons who were Australian citizens as described above under provisions of the old Act in column 2 of the table are now taken to be Australian citizens under the provisions of the new Act specified in column 3. Item 1 of the table relates to the acquisition of citizenship by descent. Item 2 of the table relates to the acquisition of citizenship by conferral. This provision ensures that persons to whom it applies continue to hold a specific citizenship status under the new Act in the event that they become subject to its provisions. 73. Subitem (3) makes it a requirement that the Minister must, as soon as practicable after the `commencement day', arrange for the registration of persons who, immediately before the commencement date, were Australian citizens by descent. 74. Subitem (4) clarifies that subitems (1) and (2) do not prevent a person from ceasing to be an Australian citizen under the new Act by way of renunciation by the person, revocation by the Minister or by service in the armed forces of an enemy country. Item 3 Expanded meaning of some expressions in the new Act 75. This item provides expanded meaning of the expressions `unlawful non-citizen', `permanent visa', `visa' and `defence service' as used in the new Act. The purpose of this item is to ensure that these expressions apply in the manner and extent specified. Generally, the expanded meanings in this item incorporate other expressions previously defined in the Migration Act 1958 with similar meanings, or specify forms of defence service, which are relevant to the provisions of the new Act specified in each subitem. 76. Subitem 1 provides for the purposes of subparagraphs 16(2)(b)(i) and paragraphs 22(6)(a) and (7)(b) of the new Act, a person is taken to also have been present in Australia as an unlawful non-citizen at a particular time if the person:
1 4 (a) in relation to the period beginning on 19 December 1989 and ending on 31 August 1994--was an illegal entrant at that time within the meaning of the Migration Act 1958 as in force at that time; and (b) in relation to the period beginning on 2 April 1984 and ending on 18 December 1989--was a prohibited non-citizen at that time within the meaning of that Act as in force at that time; and (c) in relation to the period before 2 April 1984--was a prohibited immigrant at that time within the meaning of that Act as in force at that time; and (d) for any time--was in Australia at that time in contravention of a law of Norfolk Island or the Territory of Cocos (Keeling) Islands. 77. Subitem (2) provides that the definition of `permanent visa' in section 3 of the new Act includes a `valid permanent entry permit' as formerly defined in the Migration Act 1958 prior to 1 September 1994. Section 3 of the new Act defines the expression `permanent visa' as having the same meaning as in the Migration Act 1958. 78. Subitem (3) provides that the definition of `visa' in section 3 of the new Act includes a `valid entry permit' and a `valid visa' as formerly defined in the Migration Act 1958 prior to 1 September 2004. 79. Subitem (4) expands the meaning of the expression `defence service' to provide that: · service in the permanent forces of the Commonwealth includes service under the National Service Act 1951 as in force prior to 26 November 1964; and · service in the Naval Reserve, Army Reserve or Air Force Reserve includes service in any predecessor of these organisations. Item 4 Citizenship by birth under the Act 80. This item provides transitional arrangements which relate to the acquisition of citizenship by birth under section 12 of the new Act. This item provides that this section applies to persons born on or after the commencement day. 81. Paragraph 12(1)(a) of the new Act applies to a person born on or after the commencement day. 82. Paragraph 12(1)(b) of the new Act applies to: (a) a person born on or after the commencement day; and (b) a person born before the commencement day if: (i) the person who, immediately before that day, has not been ordinarily resident in Australia throughout the period of 10 years beginning on the day the person was born and ending on the day before the commencement day; and (ii) that period is less than 10 years. 83. It provides a note at the end of this section which explains the effect of paragraph (b). The effect of paragraph (b) of this item is that the period for which the person has been
1 5 ordinarily resident in Australia before the commencement day will be counted under the new Act. Item 5 Citizenship by descent and conferral under the new Act 84. This item provides that a reference to a person ceasing to be an Australian citizen in subsections 17(5) and 24(7) of the new Act includes a reference to a person ceasing to be an Australian citizen under the old Act. 85. Subsections 17(5) and 24(7) provide that if a person has ceased to be an Australian citizen at any time, the Minister must not approve the person becoming an Australian citizen by way of descent or conferral during the 12 months since the person ceased to be a citizen. 86. This item also contains a note which explains that the effect of this item is that if a person ceases to be an Australian citizen under the old Act, the person cannot become an Australian citizen by way of descent or conferral under the new Act for at least 12 months from the date they ceased to be an Australian citizen. Item 6 Revocation of citizenship by conferral under the new Act 87. This item relates to the revocation of a person's Australian citizenship, held under the old Act, for making a false or misleading statement in his or her application, being convicted of a serious offence, or committing migration-related fraud. 88. Subitem (1) provides that this item applies to a person who is taken under subitem 2(2) of Part 1 of Schedule 3 to this Act to be an Australian citizen by way of conferral under the new Act. 89. Subitem (2) provides that subparagraph 34(2)(b)(i) of the new Act applies as if it also referred to the person's conviction of an offence against section 50 of the old Act in relation to a person's application for a certificate of Australian citizenship made under the old Act. Section 50 of the old Act made it an offence punishable by imprisonment for a person to make representations or statements that are false or misleading in a material particular or conceal a material circumstance. Subparagraph 34(2)(b)(i) provides that the Minister may revoke a person's Australian citizenship where acquired by application if, among other things, the person has been convicted of an offence against section 50 of the new Act or sections 137.1 or 137.2 of the Criminal Code in relation to the person's application to become an Australian citizen. Section 50 of the new Act relates to offences relating to false statements or representations. Sections 137.1 and 137.2 are offences relating to the provision of false or misleading information or documents. 90. Subitem (3) provides that subparagraph 34(2)(b)(ii) of the new Act applies as if it also referred to the person's conviction of an offence at any time after the person made the application for a certificate of Australian citizenship under the old Act. Subparagraph 34(2)(b)(i) provides that the Minister may revoke a person's Australian citizenship where the person has been convicted of a serious offence. The expression, `convicted of a serious offence' is defined in subsection 34(5) of the new Act as being convicted of an offence for which the person has been either sentenced to death or a serious prison sentence, and the offence was committed at anytime before the person became an Australian citizen. A serious prior sentence is defined in Section 10 of the new Act as a sentence of imprisonment for a period of at least 12 months.
1 6 91. Subitem (4) provides that subparagraph 34(2)(b)(iii) of the new Act applies as if it also referred to the person obtaining a certificate of Australian citizenship under the old Act as a result of migration-related fraud within the meanings of subsections 21(1A) and (1B) of the old Act. Item 7 Applications under the old Act 92. This item provides transitional arrangements for citizenship applications which have not been decided immediately before the commencement day, as taken to have been made under corresponding application provisions in the new Act. 93. Subitem (1) provides that an `old application' for citizenship on the basis of descent not decided immediately before the commencement day is taken to be a `new application' to become an Australian citizen under section 16 of the new Act. 94. A note is provided at the end of this subitem to indicate that the new application will be assessed under Subdivision A of Division 2 of Part 2 of the new Act. It also specifies that subitem (7) is also relevant to this assessment. 95. Subitem (2) provides that an `old application' for the grant of Australian citizenship, or an application by a stateless person born in Australia, not decided immediately before the commencement day is taken to be a `new application' to become an Australian citizen under section 21 of the new Act. 96. A note is provided at the end of this subitem to indicate the new application will be assessed under Subdivision B of Division 2 of Part 2 of the new Act. It also specifies that subitems (7) and (8) are also relevant to this assessment. 97. Subitem (3) provides that if a person has made an `old declaration' renouncing their Australian citizenship, and the Minister has not made a decision to either register or not register the old declaration immediately before the commencement day, the old application is taken to be a `new application' to renounce the person's citizenship under section 33 of the new Act. 98. A note is provided at the end of this subitem to indicate the new application will be assessed under Division 3 of Part 2 of the new Act. It also specifies that subitem (7) is also relevant to this assessment. 99. Subitem (4) provides that if a person has given the Minister a statement or declaration, an `old declaration', seeking to resume their Australian citizenship under either subsection 23AA(1) or 23AB(1) of the old Act before the commencement day, and the Minister has not registered the `old declaration', then the old declaration is taken to be an `new application' to resume Australian citizenship under section 29 of the new Act. 100. A note is provided at the end of this subitem to indicate the new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act. It also specifies that subitem (7) is also relevant to this assessment. 101. Subitem (5) similarly applies to an application to resume Australian citizenship by a child (the `old application') under subsection 23AA(2) or 23AB(3) before the commencement day.
1 7 102. Where the child is: · under the age of 18 years when the old application is made; · a declaration is made by a responsible parent of the child; and · the child ceased to be an Australian citizen by reason of the responsible parent ceasing to be an Australian citizen; if the Minister has not decided the old application immediately before the commencement day, the old application is taken to be a `new application' to resume Australian citizenship under section 29 of the new Act. 103. A note is provided at the end of this subitem to indicate the new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act. It also specifies that subitem (7) is also relevant to this assessment. 104. Subitem (6) provides that where a person who lost their citizenship under section 23 of the old Act, which relates to children of persons who lose or are deprived of citizenship, makes an `old declaration' under section 23B of the old Act before the commencement day, and the Minister has not registered or refused to register the old declaration immediately before the commencement day, the old declaration is taken to be a `new application' to become an Australian citizen again under section 29 of the new Act. 105. A note is provided at the end of this subitem to indicate the new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act. It also specifies that subitem (7) is also relevant to this assessment. 106. Subitem (7) provides for the assessment of new applications under the new Act. It makes clear that in assessing a new application under the new Act, a reference in the new Act to the time the person made the application, is taken to have been a reference to the time the old application or the old declaration was made under the old Act. 107. A note is provided at the end of this subitem to indicate the new application will be assessed under the provisions of the new Act. It specifies the effect of this subitem - that some of those provisions will be applied at the time that the old application or the old declaration was made under the old Act. 108. Subitem (8) makes it clear that in applying section 22 of the new Act (ie: the residence requirement) to a new application covered by subitem (2), paragraph 22(1)(b) of the new Act applies as if the reference to 3 years were a reference to 2 years. The effect is to ensure that citizenship eligibility criteria for periods of permanent residence in Australia are assessed at the time the old application was made under the old Act not when the application was deemed to be a new application. Item 8 Person granted certificate of citizenship under the old Act but not an Australian citizen under the old Act
1 8 109. This item provides transitional arrangements for circumstances where a person has been granted a certificate of Australian citizenship before the commencement of the new Act, but hasn't at that time made a pledge of commitment as a citizen of the Commonwealth of Australia under section 15 of the old Act. 110. This item also makes transitional arrangements for the cancellation of an approval in this circumstance and the deferral of the making of a pledge. 111. Subitem (1) provides that where such a person has been granted a certificate of Australian citizenship before the commencement of the new Act, the certificate is in force immediately before that day, and the person has not become an Australian citizen under section 15 of the old Act, then from commencement day, the certificate is taken to be an approval for the person to become an Australian citizen under section 24 of the new Act. 112. Subitem (2) makes transitional arrangements for section 25 of the new Act which provides circumstances where the Minister may cancel an approval for a person to become an Australian citizen. · Paragraph (2)(a) applies new paragraph 25(2)(a) of the new Act to a person who was granted a certificate of Australian citizenship under the old Act. Subsection 25(2) allows the Minister to cancel an approval if a person is not, at the time of cancellation, a permanent resident, or not likely to reside or continue to reside in Australia or maintain a close and continuing association with Australia, or not of good character. · Paragraph (2)(b) provides that a reference in paragraph 25(3)(a) of the new Act to the day when a person receives notice of an approval is taken to be a reference to the day on which the person was notified by the Minister of the grant of a certificate of Australian citizenship. Subsection 25(3) provides for the cancellation of approval where a person has failed to make a pledge of commitment within 12 months after the date of approval. 113. Subitem (3) provides transitional arrangements for decisions made by the Minister under subsection 14C(1) of the old Act to defer the conferral of Australian citizenship on a person where it appears that a visa held by the person may be cancelled under a provision of the Migration Act 1958 or the person has been charged (or may be charged) with an offence under a law of the Commonwealth, a State or Territory. Such decisions are taken under subitem (3) to be a determination under subsection 26(3) of the new Act. Item 9 Children of persons who lost or were deprived of citizenship under the old Act 114. Subitem (1) of this item provides that where subsection 23(3) of the old Act (which prevents the loss of Australian citizenship of a child who has a parent who has lost or been deprived of Australian citizenship) applies to a child immediately before the commencement of the new Act, then on and from commencement day, section 36 of the new Act applies to the child. Subsection 23(3) of the old Act operates to prevent the loss of citizenship where the child has another responsible parent who is an Australian citizen. Section 36(2) is the new Act equivalent to section 23(3) of the old Act.
1 9 115. Subitem (2) provides that in such a circumstance, the reference to `cessation date' in subsection 36(2) of the new Act is taken to be a reference to the commencement day of the new Act, and it is further taken to be a responsible parent of the child who is an Australian citizen on this day. Item 10 Review of decisions made under the old Act 116. This item provides that despite the repeal of the old Act, section 52A of the old Act (which provides for applications for review by the Administrative Appeals Tribunal of various decisions made under the old Act) continues to apply to a decision made under the old Act. Item 11 Continuation of criminal proceedings under the old Act 117. This item provides that despite the repeal of the old Act, the old Act continues to apply, on and after the commencement day, to criminal proceedings that began before that day under the old Act. Item 12 Section 8 of the Acts Interpretation Act 1901 118. This item provides that the effect of Part 1 of Schedule 3 to this Act does not limit the operation of section 8 of the Acts Interpretation Act 1901 (concerning the effect of repealed Acts) in relation to the repeal of the old Act. Item 13 Transitional regulations 119. This item authorises the Governor-General to make regulations prescribing matters of a transitional nature relating to either the amendments or repeals made by this Act, or the enactment of this Act or the new Act.
2 0 PART 2 - Provisions relating to the amendments made by Schedules 1 and 2 to this Act Item 14 Definition 120. This item provides that the expression `commencement day' is defined as meaning the day on which sections 3 to 54 of the new Act commence. Item 15 Transitional - Administrative Appeals Tribunal Act 1975 121. This item provides transitional arrangements for where there are proceedings before the Administrative Appeals Act which relate to the old Act. In this circumstance, the amendment made by item 1 of Schedule 1 this Act is, for the purpose of the proceedings, taken not to have been made. Item 16 Application - Age Discrimination Act 2004 122. This item provides that the amendment made by item 2 of Schedule 1 to this Act applies in relation to things done by a person on or after the commencement day. Item 17 Application - Australian Passports Act 2005 123. This item provides that the amendment made by item 4 of Schedule 1 to this Act applies to Australian travel documents issued on or after the commencement day. Item 18 Application - Commonwealth Electoral Act 1918 124. This item provides that the amendments made by items 15 and 16 of Schedule 1 to this Act apply in relation to nominations made on or after the commencement day. Item 19 Transitional - Criminal Code Act 1995 125. This item provides transitional arrangements for certificates in force under subsections 72.8(2) and 115.7(1) of the Criminal Code. Subsection 72.8(2), following the amendment made by item 24 of this Act, provides that the Minister administering the new Act may issue a certificate stating that a person was an Australian citizen or a stateless person, whose habitual residence is or was in Australia, at a particular time. Subsection 115.7(1), following the amendment made by item 25 of this Act, provides that the Minister who administers the new Act, the Migration Act 1958 or the Australian Passports Act 2005 may issue a certificate stating that a person is or was an Australian citizen or a resident of Australia at a particular time. 126. This item provides that such certificates in force immediately before the commencement day have effect on and after that day as if it were a certificate issued under either subsection after the commencement day. Item 20 Application - Electronic Transactions Act 1999 127. This item provides that the amendments made by item 27 of Schedule 1 to this Act applies in relation to documents required or permitted to be produced under section 11 of the Electronic Transactions Act 1999 on or after the commencement day.
2 1 Item 21 Application - Immigration (Education) Act 1971 128. This item provides that the amendment made by item 1 of Schedule 2 to this Act applies to: · a person to whom an obligation to provide tuition in an approved English course under section 4C of the Immigration (Education) Act 1971 on or after the commencement day; or · a person for whom an obligation to provide tuition in an approved English course began before the commencement day, but only where the obligation has not ceased before the commencement day. Item 22 Transitional - Migration Act 1958 129. This item applies to an authorisation, in force immediately before the commencement day, to access identifying information under section 336D of the Migration Act, and the purpose of the authorisation relates to making decisions under the old Act or regulations made under the old Act. This item provides that such authorisations have effect on and after the commencement day as if it applied to the new Act or to regulations made under the new Act.