Australian Citizenship Amendment (Special Residence Requirements) Act 2013

Administered by Department of Home Affairs

Legislation au C2013A00057 In force Act

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No. 57, 2013

An Act to amend the Australian Citizenship Act 2007, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendments

Australian Citizenship Act 2007

Australian Citizenship Amendment (Special Residence Requirements) Act 2013

No. 57, 2013

An Act to amend the Australian Citizenship Act 2007, and for related purposes

[Assented to 21 June 2013]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Australian Citizenship Amendment (Special Residence Requirements) Act 2013.

2 Commencement

This Act commences on the day after this Act receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Australian Citizenship Act 2007

1 After subsection 22A(1)

Insert:

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.

2 Subsection 22A(4)

After “paragraph (1)(f)”, insert “or (1A)(c)”.

3 Subsection 22A(5)

After “paragraph (1)(g)”, insert “or (1A)(d)”.

4 At the end of section 22A

Add:

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.

5 After subsection 22B(1)

Insert:

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

(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.

6 Subsection 22B(2)

Repeal the subsection, substitute:

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:

(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.

7 Subsection 22B(4)

After “paragraph (1)(f)”, insert “or (1A)(e)”.

8 Subsection 22B(5)

After “paragraph (1)(g)”, insert “or (1A)(f)”.

9 At the end of section 22B

Add:

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.

10 After subsection 24(2)

Insert:

(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.

11 Subsection 29(2) (note 2)

After “34”, insert “, 34A”.

12 Section 32A

Omit “4 ways”, substitute “5 ways”.

13 Section 32A

Omit:

• if you did not automatically become an Australian citizen, the Minister can revoke your citizenship: see section 34; or

substitute:

• 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

14 Section 34 (heading)

Repeal the heading, substitute:

34 Revocation by Minister—offences or fraud

15 After section 34

Insert:

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

(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.

16 Paragraph 36(1)(a)

After “34”, insert “, 34A”.

17 Paragraph 38(1)(a)

After “34”, insert “or 34A”.

18 At the end of section 52

Add:

(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.

19 Application provision

The amendments made by items 1 to 10 apply in relation to:

(a) applications made under section 21 of the Australian Citizenship Act 2007 on or after the commencement of those items; and

(b) applications made under that section before that commencement and not decided by the Minister before that commencement.

[Minister’s second reading speech made in—

House of Representatives on 30 May 2013

Senate on 17 June 2013]

(131/13)

Overview

The Australian Citizenship Amendment (Special Residence Requirements) Act 2013 was enacted by the Parliament of Australia to amend the Australian Citizenship Act 2007, primarily addressing the issue of ensuring that individuals who are granted Australian citizenship meet certain residency requirements. The Act provides the Minister with discretionary powers to waive specific residential criteria for citizenship applicants under certain conditions, such as when the applicant has engaged in activities deemed beneficial to Australia. The policy objective behind this legislation is to ensure that individuals who become Australian citizens have a sufficient connection to Australia, as demonstrated through their residential status and presence in the country. The Act also allows the Minister to revoke citizenship if the special residence requirements are not met after citizenship has been granted, reinforcing the importance of maintaining these residency standards for all Australian citizens. The Act introduces amendments to the Australian Citizenship Act 2007 by providing the Minister with the discretion to determine that certain residency requirements do not apply to applicants who meet specific conditions, including their engagement in beneficial activities and their residential status in Australia. This discretionary power is designed to cater to exceptional cases where applicants have made significant contributions to Australia but may not fully meet the standard residency requirements. Additionally, the Act mandates that the Minister must table a statement in Parliament if they exercise this discretionary power, providing transparency and accountability regarding the decisions made. The Act's provisions are intended to balance the need for stringent residency requirements with the recognition of individual contributions to Australia, thereby maintaining the integrity of the citizenship process.

Scope and Application

The Australian Citizenship Amendment (Special Residence Requirements) Act 2013 is an Act of the Commonwealth of Australia that amends the Australian Citizenship Act 2007 to provide the Minister for Immigration and Border Protection with discretion to determine alternative residence requirements for certain applicants for Australian citizenship. The Act applies to applicants for Australian citizenship who meet specified criteria, including being a permanent resident and not being present in Australia as an unlawful non-citizen for certain periods before making the application. The Act also provides the Minister with the power to revoke Australian citizenship if the person fails to comply with special residence requirements. The Act applies on a national level, throughout Australia, and its provisions extend to all applicants for Australian citizenship who meet the specified criteria, regardless of their location or circumstances. The Act does not provide for any exclusions or exemptions from its application, and it does not extend or restrict application through subordinate instruments. The Act applies to all applications for Australian citizenship made on or after its commencement, as well as to applications made before its commencement but not decided by the Minister before its commencement.

Key Provisions

The Australian Citizenship Amendment (Special Residence Requirements) Act 2013 amends the Australian Citizenship Act 2007 to introduce new provisions for the Minister of Home Affairs to determine alternative residence requirements for applicants seeking Australian citizenship. Under section 22A(1A) of the Act, the Minister may determine that certain residence requirements do not apply to an applicant if they are satisfied that the applicant meets specific criteria, including being a permanent resident for 90 days before applying, not being present in Australia as an unlawful non-citizen for 180 days prior to applying, and providing an undertaking to be ordinarily resident in Australia for two years post-citizenship with at least 180 days of physical presence in Australia during that period. Additionally, the Minister may also determine alternative residence requirements for applicants under section 22B(1A), provided the applicant’s engagement in certain work is of benefit to Australia, and they meet the specified criteria. The Act imposes specific obligations on applicants seeking Australian citizenship. They must satisfy the Minister that they meet the criteria for the exercise of discretion under sections 22A(1A) and 22B(1A), including providing an undertaking regarding their future residence in Australia and acknowledging the effect of section 34A. The Minister has the sole discretion to determine whether to exercise the powers under these sections and does not have a duty to consider exercising these powers, even if requested by the applicant or any other party. The Act includes provisions for potential offences and penalties related to breaches of the new requirements. Under section 34A, the Minister may revoke an Australian citizen’s citizenship if the person became a citizen under the discretionary provisions and fails to comply with the special residence requirements. The Minister must not revoke citizenship if doing so would render the person stateless. The revocation of citizenship takes effect at the time of the Minister’s decision, and a child of the person may also cease to be an Australian citizen. The Act also stipulates that the Administrative Appeals Tribunal cannot exercise the discretionary powers or review any exercise or non-exercise of these powers.

Area of Law: Immigration & Refugee Law
Instrument: Act
Concepts: Commencement Provisions; Reporting & Disclosure Obligations; Administrative Discretion; Regulatory Standards; Prohibited Conduct; Repeal & Amendment

Interactions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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