Australian Citizenship Amendment Act 1984 (Cth)

Australian Citizenship Amendment Act 1984 No. 129 of 1984 table of provisions Section 1. Short title, &c. 2. Commencement 3. Title 4. Interpretation 5. Insertion of new section after section 5— 5a. Certain non-citizens to be permanent residents for the purposes of Act 6. Application of this Act to certain citizens of Pakistan and Republic of South Africa 7. Repeal of Part II 8. Heading to Division 1 of Part III 9. Citizenship by birth 10. Repeal of section 11 and substitution of new sections— 10a. Citizenship by adoption 10b. Citizenship by descent 11. Repeal of sections 13 and 14 and substitution of new sections— 13. Grant of certificate of Australian citizenship 14. Deferral of consideration of application under section 13 12. Effect of grant of certificate of Australian citizenship 13. Repeal of section 17 and substitution of new section— 17. Loss of citizenship on acquisition of another nationality 14. Renunciation of citizenship 15. Deprivation of citizenship 16. Children of persons who lose or are deprived of citizenship 17. Insertion of new section after section 23— 23aa. Persons may resume citizenship lost under section 17 in certain circumstances 18. Persons may resume citizenship lost under section 20 19. Persons may resume citizenship lost under section 23 20. Special provisions to prevent persons being stateless 21. Transitional provisions TABLE OF PROVISIONS—continued Section 22. Repeal of Part IV 23. Certificate of registration or naturalization in case of doubt 24. Repeal of sections 34 and 35 and substitution of new section— 34. Posthumous children 25. Statement in support of application for certificate of Australian citizenship 26. Repeal of sections 37 to 40a (inclusive) and substitution of new section— 37. Delegation 27. Cancellation of certificates, returns of certificates, &c. 28. Definition of certificate of naturalization for certain purposes 29. Issue and proof of certificates of Australian citizenship 30. Evidentiary certificates 31. Repeal of sections 48, 48a and 49 and substitution of new sections— 47a. Replacement certificates 48. Surrender of certificates 49. Offence to alter certificates 32. False representations, &c. 33. References in Commonwealth and Territory laws to British subjects 34. Provisions of this Act to be exclusive of State laws 35. Insertion of new sections— 52a. Review of decisions 52b. Statement to accompany notification of decisions 36. Regulations 37. Schedule 3 38. Formal amendments 39. Application THE SCHEDULE Formal amendments Australian Citizenship Amendment Act 1984 No. 129 of 1984 An Act to amend the Australian Citizenship Act 1948, and for related purposes [Assented to 25 October 1984] BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: Short title, &c. 1. (1) This Act may be cited as the Australian Citizenship Amendment Act 1984. (2) The Australian Citizenship Act 19481 is in this Act referred to as the Principal Act. Commencement 2. (1) Subject to sub-section (2), this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent. (2) Section 3, sub-section 4 (2), sections 7, 22, 33 and 34 and section 37 shall come into operation on a day to be fixed by Proclamation. Title 3. The title of the Principal Act is amended by omitting all the words after "Citizenship". Interpretation 4. (1) Section 5 of the Principal Act is amended— (a) by omitting from sub-section (1) the definition of "Australia" and substituting the following definitions: "'approved form' means a form approved by the Minister by instrument in writing; "'Australia', when used in a geographical sense, includes the external Territories;"; (b) by omitting from paragraph (a) of the definition of "Australian consulate" in sub-section (1) "at which a register of births is kept"; (c) by omitting from paragraph (b) of the definition of "Australian consulate" in sub-section (1) "in New Guinea or"; (d) by omitting from sub-section (1) the definitions of "New Guinea", "responsible parent", "service under an Australian government", "the approved form", "the permanent forces of the Commonwealth" and "the Secretary" and substituting the following definitions: "'entry permit' means an entry permit within the meaning of the Migration Act 1958; "'New Guinea' has the same meaning as 'the Territory of New Guinea' had in the Papua New Guinea Act 1949 immediately before 16 September 1975; "'Papua' has the same meaning as 'the Territory of Papua' had in the Papua New Guinea Act 1949 immediately before 16 September 1975; "'prescribed date' means the day on which the Migration Amendment Act 1983 comes into operation; "'prescribed Territory' means Norfolk Island or the Territory of Cocos (Keeling) Islands; "'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 him by reason of that conviction; "'prohibited immigrant' means a prohibited immigrant within the meaning of the Migration Act 1958 as in force from time to time before the prescribed date; "'prohibited non-citizen' means a prohibited non-citizen within the meaning of the Migration Act 1958 as in force from time to time on or after the prescribed date; "'psychiatric institution' includes a psychiatric section of a hospital; "'relevant defence service' means— (a) service in the permanent forces of the Commonwealth; or (b) service by virtue of a notice under section 26 of the National Service Act 1951 as in force at any time before 26 November 1964; "'responsible parent', in relation to a child, means a person, whether or not a parent of the child, who, under a law in force in a foreign country or a law of the Commonwealth, a State or a Territory, whether by reason of adoption, operation of law, an order of a court or otherwise, has guardianship or custody of the child whether jointly or otherwise; "'return endorsement' means a return endorsement within the meaning of the Migration Act 1958 and includes a document or notation referred to in sub-section 9 (3) of the Migration Amendment Act 1979; "'Secretary' means the Secretary to the Department.". (e) by omitting paragraph (3) (b); and (f) by adding at the end thereof the following sub-sections: "(5) For the purposes of this Act— (a) a reference to a period during which a person is or has been confined in a prison includes a reference to a period— (i) during which the person is or has been an escapee from a prison; or (ii) during which the person is or has been undergoing a sentence of periodic detention in a prison; and (b) a reference to a period during which a person is or has been confined in a psychiatric institution by order of a court includes a reference to a period during which the person is or has been an escapee from the institution. "(6) A child born to a woman as a result of the carrying out, during the period in which the woman was married to a man, of a medical procedure in relation to that woman, being a child who is not biologically the child of that man, shall, for the purposes of this Act, be deemed to be a child of that man and of no other man if the medical procedure was carried out with the consent of that man. "(7) Sub-section (6) applies in relation to a purported marriage that is void as if the purported marriage were a marriage and as if the parties to the purported marriage were husband and wife unless, at the time of the carrying out of the medical procedure referred to in sub-section (6), neither party to the purported marriage believed on reasonable grounds that the purported marriage was valid. "(8) In sub-section (6), 'medical procedure' means artificial insemination or the implantation of an embryo in the body of a woman.". (2) Section 5 of the Principal Act is amended— (a) by omitting from sub-section (1) the definitions of "alien" and "the United Kingdom and Colonies"; (b) by omitting sub-section (2); (c) by adding at the end of paragraph (3) (c) "and"; (d) by omitting paragraph (3) (d); (e) by omitting sub-section (3a); and (f) by omitting from sub-section (4) ", and sub-sections 25 (1) and (3)". 5. After section 5 of the Principal Act the following section is inserted: Certain non-citizens to be permanent residents for the purposes of Act "5a. (1) A person who is not an Australian citizen shall be taken to be, or to have been, a permanent resident for the purposes of this Act— (a) in relation to a period before the prescribed date during which the person was present in Australia (other than a prescribed Territory), if— (i) his continued presence in Australia (other than a prescribed Territory) was not, during that period, subject to any limitation as to time imposed by law; (ii) he was not, during that period, a prohibited immigrant; and (iii) he was not, during that period, a person who, if an event of the kind referred to in paragraph 8 (3) (a), (b), (c) or (d) of the Migration Act 1958 as in force from time to time during that period had occurred, would have become a prohibited immigrant by virtue of sub-section 8 (3) of that Act as so in force, or, in a case where he was such a person, he was, during that period, a person to whom a declaration in force under sub-section (2) applies; (b) in relation to a period on or after the prescribed date during which the person was present in Australia (other than a prescribed Territory), if— (i) his continued presence in Australia (other than a prescribed Territory) was not, during that period, subject to any limitation as to time imposed by law; (ii) he was not, during that period, a prohibited non-citizen; and (iii) he was not, during that period, a person who, if an event of the kind referred to in paragraph 8 (3) (a), (b), (c) or (d) of the Migration Act 1958 as in force from time to time during that period had occurred, would have become a prohibited non-citizen by virtue of sub-section 8 (3) of that Act as so in force or, in a case where he was such a person, he was, during that period, a person to whom a declaration in force under sub-section (2) applies; (c) in relation to a period during which the person was present in a prescribed Territory, if— (i) his continued presence in that Territory was not, during that period, subject to any limitation as to time imposed by law, or, in a case where his continued presence in that Territory was subject to such a limitation, he would have been a permanent resident for the purposes of this Act if he had been present in Australia (other than a prescribed Territory), or if he had been present in the other prescribed Territory, during that period; and (ii) his presence in that Territory during that period was not in contravention of a law of that Territory; or (d) in relation to a period during which the person was not present in Australia, if he was, during that period— (i) the holder of, or deemed to be included in— (a) a return endorsement that was in force; or (b) a document or endorsement in force under a law of a prescribed Territory, being a document or endorsement that, under the regulations, is to be treated as, or having been during a specified period, the equivalent of a return endorsement during that period; or (ii) a person included in a class of persons declared by the regulations to be, or to have been during a specified period, permanent residents for the purposes of this Act, being persons who have, or have had, an association with a prescribed Territory. "(2) The Minister may, by instrument in writing, declare that persons included in a specified class of persons, being persons (other than Australian citizens) who— (a) if an event of the kind referred to in paragraph 8 (3) (d) of the Migration Act 1958, as in force from time to time before the prescribed date, had occurred, would have become prohibited immigrants by virtue of sub-section 8 (3) of that Act as so in force; or (b) if an event of the kind referred to in paragraph 8 (3) (d) of the Migration Act 1958, as in force from time to time on or after the prescribed date, had occurred, would have become prohibited non-citizens by virtue of sub-section 8 (3) of that Act as so in force, shall be taken to be, or to have been during a specified period, persons to whom this sub-section applies. "(3) Regulations made by virtue of sub-section (1) or a declaration under sub-section (2) may be expressed to relate to a period commencing on a date earlier than the date on which those regulations were made or that declaration was made. "(4) A copy of an instrument under sub-section (2) shall be published in the Gazette". Application of this Act to certain citizens of Pakistan and Republic of South Africa 6. Section 8a of the Principal Act is repealed. Repeal of Part II 7. Part II of the Principal Act is repealed. Heading to Division 1 of Part III 8. The heading to Division 1 of Part III of the Principal Act is amended by inserting ", Adoption" after "Birth". Citizenship by birth 9. Section 10 of the Principal Act is amended— (a) by omitting from sub-section (1) "by birth"; (b) by omitting from sub-section (2) "A person shall" and substituting "Subject to sub-section (4), a person shall"; (c) by omitting from sub-sections (2) and (3) "his father" and substituting "a parent of the person"; (d) by omitting from paragraph (2) (b) "ordinarily resident in Australia" and substituting "a permanent resident"; (e) by omitting from sub-section (3) "A person shall" and substituting "Subject to sub-section (5), a person shall"; and (f) by adding at the end thereof the following sub-sections: "(4) Sub-section (2) does not apply in relation to a person if, at the time of his birth, a parent of the person was an Australian citizen or a permanent resident. "(5) Sub-section (3) does not apply in relation to a person if, at the time of his birth, a parent of the person— (a) was an Australian citizen or a permanent resident; and (b) was not an enemy alien.". 10. Section 11 of the Principal Act is repealed and the following sections are substituted: Citizenship by adoption "10a. A person, not being an Australian citizen, who— (a) under a law in force in a State or Territory, is adopted by an Australian citizen or jointly by 2 persons at least one of whom is an Australian citizen; and (b) at the time of his adoption is present in Australia as a permanent resident, shall be an Australian citizen. Citizenship by descent "10b. (1) A person born outside Australia (in this sub-section referred to as the 'relevant person') is an Australian citizen if— (a) the name of the relevant person is registered for the purposes of this section at an Australian consulate within 18 years after his birth; and (b) a person, being a parent of the relevant person at the time of the birth of the relevant person— (i) was at that time an Australian citizen who had acquired Australian citizenship otherwise than in the manner referred to in sub-sub-paragraph (ii) (a); or (ii) was— (a) at that time an Australian citizen who had acquired Australian citizenship under this section, or under section 11 of this Act as in force at any time before the commencement of this section; and (b) at any time before the registration of the name of the relevant person (including a time before the birth of the relevant person), present in Australia, otherwise than as a prohibited immigrant, as a prohibited non-citizen, or in contravention of a law of a prescribed Territory, for a period of, or for periods amounting in the aggregate to, not less than 2 years. "(2) Where, at the time of the birth of a child (in this sub-section referred to as the 'relevant child'), one of the parents of the relevant child was not an Australian citizen, the name of the relevant child shall not be registered for the purposes of this section at an Australian consulate unless the person applying to register the name declares in writing to the person to whom the application is made, or otherwise satisfies that person, that— (a) at least one person who is, at the time of the application, a responsible parent of the relevant child, was, at the time of the birth of the relevant child— (i) a parent of the relevant child; and (ii) an Australian citizen; or (b) a person who was, at the time of the birth of the relevant child— (i) a parent of the relevant child; and (ii) an Australian citizen, is dead. "(3) The validity of the registration at an Australian consulate of the name of a person is not affected by a failure to comply with sub-section (2) in relation to that registration.". 11. Sections 13 and 14 of the Principal Act are repealed and the following sections are substituted: Grant of certificate of Australian citizenship "13. (1) Subject to this section, the Minister may, in his discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that— (a) he is a permanent resident; (b) he has attained the age of 18 years; (c) he understands the nature of the application; (d) he has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application; (e) he has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application; (f) he is of good character; (g) he possesses a basic knowledge of the English language; (h) he has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and (j) if granted a certificate of Australian citizenship, he is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia. "(2) Where, by reason of a physical or mental incapacity, not being a temporary incapacity, an applicant under sub-section (1) is not capable of understanding the nature of that application, paragraphs (1) (c), (g) and (h) do not apply in relation to that person. "(3) Paragraphs (1) (d) and (e) do not apply in relation to— (a) a person who has completed not less than 3 months' relevant defence service; or (b) a person who has been discharged from relevant defence service, before completing 3 months of that service, as medically unfit for service or further service and who became medically unfit by reason of his relevant defence service. "(4) For the purposes of the application of sub-section (1) in relation to an applicant for the grant of a certificate of Australian citizenship— (a) the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person; and (b) subject to paragraph (a), the Minister may, in his discretion— (i) treat a period during which the applicant— (a) was a permanent resident; (b) was not present in Australia; and (c) was engaged in activities that the Minister considers beneficial to the interests of Australia, as a period during which the applicant was present in Australia as a permanent resident; (ii) treat a period ending before the period of 5 years referred to in paragraph (1) (e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years; (iii) if the applicant was, immediately before 16 September 1975, the holder of, or deemed to be included in, an entry permit (not being a temporary entry permit) and has continued to be the holder of, or to be deemed to be included in, such an entry permit, treat— (a) a period ending before 16 September 1975 during which the applicant was ordinarily resident in Papua or New Guinea; or (b) a period commencing on or after 16 September 1975 and ending before 16 September 1978 during which the applicant was ordinarily resident in the Independent State of Papua New Guinea, as a period— (c) within the period of 5 years referred to in paragraph (1) (e); and (d) during which the applicant was present in Australia as a permanent resident; or (iv) if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant—treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident. "(5) Paragraph (1) (e) does not apply in relation to a person who was formerly an Australian citizen or who was born in Australia. "(6) Paragraphs (1) (g) and (h) do not apply in relation to a person who satisfies the Minister that he is suffering (otherwise than temporarily) from a loss, or from a substantial impairment, of hearing, speech or sight. "(7) Paragraph (1) (g) does not apply to a person who has attained the age of 50 years. "(8) Paragraph (1) (h) does not apply to a person who has attained the age of 60 years. "(9) Subject to sub-section (11), the Minister may, in his discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person— (a) who has not attained the age of 18 years; (b) who— (i) has attained the age of 18 years; and (ii) has made the application before attaining that age; (c) who is the spouse, widow or widower of an Australian citizen; or (d) who— (i) has attained the age of 16 years; and (ii) is the spouse of a person who has been granted a certificate of Australian citizenship but has not yet acquired Australian citizenship by virtue of the operation of section 15. "(10) Subject to sub-section (11), the Minister may, in his discretion, upon application in accordance with the approved form, include in a certificate of Australian citizenship, either at the time of granting the certificate or by later amending the certificate under this section, the name of a child who has not attained the age of 16 years and of whom the grantee is a responsible parent. "(11) The Minister shall not grant a certificate of Australian citizenship to a person under sub-section (1) or (9) or include the name of a person in a certificate of Australian citizenship under sub-section (10)— (a) during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person; (b) during any period during which the person is confined to a prison in Australia; (c) during the period of 2 years after the expiration of any period during which the person has been confined in a prison in Australia by reason of the imposition on him of— (i) a sentence of death that has been commuted to a sentence of imprisonment; or (ii) a sentence of imprisonment for life or for a period of not less than 12 months; (d) if the person has been released from serving a part of a sentence of imprisonment on parole or upon licence to be at large—during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole or a part of the remainder of that sentence; (e) if the person has been released by a court from serving a part of a sentence of imprisonment upon his giving a relevant security—during any period during which action can be taken in respect of the person under a law of the Commonwealth, a State or a Territory by reason of a breach of a condition of that security; (f) during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings of the kind referred to in paragraph (a) in relation to the person; or (g) if the person ceased to be an Australian citizen by virtue of the registration of a declaration under section 18—during the period of 12 months after the date of registration of the declaration. "(12) Where the Minister makes a decision under this section refusing an application and the applicant is present in Australia, the Minister shall cause to be served on the applicant, either personally or by post, a notice in writing setting out that decision. "(13) Nothing in paragraph (4) (a) or sub-section (11) shall be taken, by implication, to limit the generality of paragraph (1) (f). "(14) Nothing in sub-section (10) shall be taken, by implication, to limit the generality of sub-section 47 (1). "(15) A certificate that has been amended in pursuance of this section has effect as so amended. "(16) A reference in paragraph (4) (a) or (11) (c) to a period during which a person has been confined in a prison does not include a reference to a period during which the person has been so confined by reason only of his serving a sentence relating to a conviction that has subsequently been quashed. "(17) In paragraph (11) (3) (e),'relevant security' means a security given by a person, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to his behaviour. Deferral of consideration of application under section 13 "14. (1) Subject to sub-section (2), where— (a) an application is made to the Minister under section 13; and (b) it appears to the Minister at a particular time that— (i) if he were to complete consideration of the application at that time, he would be likely to refuse the application; and (ii) having regard to the effluxion of time, or to the likelihood of a change in circumstances, he would be likely to grant the application if consideration of the application were deferred for such period as he determines, the Minister may, in his discretion, defer consideration of the application until the expiration of that period. "(2) The Minister shall not defer consideration of an application made under section 13 for a period that exceeds, or for periods that, in the aggregate, exceed, 12 months. "(3) Where, in accordance with sub-section (1), the Minister decides to defer consideration of an application until the expiration of a period— (a) if the applicant is present in Australia, the Minister shall cause to be served on the applicant, either personally or by post, a notice in writing setting out that decision; and (b) section 13 and sub-section (1) of this section apply in relation to the application as if it had been furnished immediately before the expiration of that period. "(4) Nothing in this section prevents— (a) an applicant under section 13 from withdrawing his application; or (b) a person whose application under section 13 has been refused from making a further application or applications under that section.". Effect of grant of certificate of Australian citizenship 12. Section 15 of the Principal Act is amended— (a) by omitting from paragraph (1) (b) "sub-section (2) of section 14" and substituting "sub-section 13 (2)"; (b) by omitting from sub-section (3) "sub-section (8) of section 14" and substituting "sub-section 13 (9)"; (c) by omitting from sub-section (3) "paragraph (d) of that sub-section" and substituting "sub-paragraph 13 (9) (d) (ii)"; and (d) by omitting from sub-section (4) "sub-section (9) of section 14" and substituting "sub-section 13 (10)". 13. Section 17 of the Principal Act is repealed and the following section is substituted: Loss of citizenship on acquisition of another nationality "17. (1) A person, being an Australian citizen who has attained the age of 18 years, who does any act or thing— (a) the sole or dominant purpose of which; and (b) the effect of which, is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen. "(2) Sub-section (1) does not apply in relation to an act of marriage.". Renunciation of citizenship 14. Section 18 of the Principal Act is amended— (a) by omitting sub-sections (1), (1a), (2), (3) and (3a) and substituting the following sub-section: "(1) Where a person is an Australian citizen and— (a) has attained the age of 18 years and is a national or citizen of a foreign country; or (b) 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 by reason that the person is an Australian citizen, the person may lodge with the Minister a declaration in the prescribed form renouncing his Australian citizenship."; (b) by omitting from sub-section (4) "the next two succeeding sub-sections" and substituting "sub-sections (5), (5a) and (6)"; (c) by inserting after sub-section (5) the following sub-section: "(5a) The Minister shall not register a declaration made under this section if he considers that it would not be in the interests of Australia to do so."; and (d) by omitting from sub-section (6) "sub-section (2)" and substituting "this section". Deprivation of citizenship 15. Section 21 of the Principal Act is amended— (a) by omitting paragraph (a) and substituting the following paragraph: "(a) a person who is an Australian citizen by virtue of a certificate of Australian citizenship— (i) has been convicted of an offence against section 50 in relation to the application for his certificate of Australian citizenship; or (ii) has, at any time after furnishing the application for his certificate of Australian citizenship (including a time after the grant of the certificate), been convicted of an offence against a law in force in a foreign country or against a law of the Commonwealth, a State or Territory for which he has been sentenced to death or to imprisonment for life or for a period of not less than 12 months, being an offence committed at any time before the grant of the certificate (including a time before the furnishing of the application); and"; (b) by inserting "in his discretion," after "the Minister may,"; and (c) by adding at the end thereof the following sub-sections: "(2) A reference in sub-section (1) to a conviction of an offence includes a reference to the making of an order under sub-section 19b (1) of the Crimes Act 1914 or the corresponding provision of a law in force in a foreign country or of a law of a State or Territory in relation to the offence. "(3) Where the Minister makes an order under sub-section (1) depriving a person of his Australian citizenship, the Minister shall, if the person is present in Australia, cause to be served on the person, either personally or by post, a copy of that order.". Children of persons who lose or are deprived of citizenship 16. Section 23 of the Principal Act is amended— (a) by omitting from sub-section (1) "Where" and substituting "Subject to sub-section (3), where"; (b) by omitting from paragraph (1) (a) "the responsible parent or the guardian" and substituting "a responsible parent"; (c) by omitting from paragraph (1) (b) "his responsible parent or his guardian" and substituting "that re