EXPLANATORY STATEMENT
Issued by authority of the Assistant Minister for Citizenship, Customs and Multicultural Affairs
Australian Citizenship Act 2007
Australian Citizenship (Authorisation) Instrument 2025
The instrument, departmental reference LIN 25/088, is made under subsections 40(3), 40(4), 42(3) and 42(4) of the Australian Citizenship Act 2007 (Citizenship Act).
The instrument repeals Australian Citizenship Act 2007 – Instrument of Authorisation (Subsections 40(3), 40(4), 42(3) and 42(4)) 2015 – IMMI 15/063 (IMMI 15/063) in accordance with subsection 33(3) of the Acts Interpretation Act 1901. That subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument. IMMI 15/063 would otherwise be repealed by sunsetting on 1 October 2025 by operation of section 50 of the Legislation Act 2003 (Legislation Act).
Subsection 40(1) of the Citizenship Act provides that, for the purposes of the Minister being satisfied of the identity of a person in relation to an application under Part 2 of the Citizenship Act or a person who has sought to sit a test approved in a determination under section 23A, the Minister, a person authorised under subsection 40(3), or a person who is included in a class of persons authorised under subsection 40(4), may request, in writing, that a person provide one or more specified identifiers.
Subsection 42(3) of the Citizenship Act provides that the Minister may, in writing, authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation. The Minister must specify in an authorisation under this subsection, one or more of the purposes set out in subsection 42(4) as the purpose or purposes for which access is authorised.
The purpose of this instrument is to provide for the persons and classes of persons that are authorised to:
- request, in writing, personal identifiers from a person making an application under Part 2 of the Citizenship Act, or a person who has sought to sit a test approved in a determination under section 23A, for the purposes of the Minister being satisfied of their identity; and
- access identifying information for any one or more of the purposes currently mentioned under subsection 42(4) of the Citizenship Act.
The instrument also operates to repeal IMMI 15/063 (which otherwise would have sunset on 1 October 2025). The main change of this instrument is to simplify the Department’s authorisations framework in relation to subsections 40(2), 40(3), 42(3), and 42(4) in the Citizenship Act by determining the scope of the authorised persons and classes of persons with reference to the definition of entrusted person in the Citizenship Act.
Section 3 of the Citizenship Act defines entrusted person as:
- the Secretary of the Department; or
- an APS employee of the Department; or
- a person engaged under section 74 of the Public Service Act 1999 by the Secretary of the Department; or
- a person engaged by the Commonwealth, the Minister, the Secretary of the Department, or by an APS employee in the Department, to do work for the purposes of this Act or the regulations or of the Migration Act 1958 or the regulations made under that Act
Drawing on the category of entrusted person reduces complexity in drafting and ensures that this instrument is aligned with the language used in the Citizenship Act. The intention is to streamline the instrument of authorisation and to deliver clearer laws. All persons who will be undertaking work for the Department to administer the Citizenship test are required to undertake relevant and appropriate training to ensure the integrity of the citizenship program and safety of the community. Accessing and requesting personal identifiers and identifying information is safeguarded by the obligations set out in Subdivision B of Division 5 of Part 2 to the Citizenship Act.
The instrument enables the Department to continue its current operations in administering the Citizenship Test, assessing the identity of a person making a citizenship application, and combating document and identity fraud in citizenship matters. Without this instrument, entrusted persons would not be able to request and access personal identifiers or identifying information for the purposes of assessing a person’s identity for a citizenship application and administering a citizenship test under the Citizenship Act.
The overall assessment is that this instrument is compatible with human rights. A copy of the Statement is at Attachment A.
The instrument commences on the day after registration. Further details of the instrument are set out in Attachment B.
No external consultation was undertaken or considered necessary and appropriate to undertake in relation to this instrument. This is because the instrument concerns the Department’s authorisations framework in relation to provisions of the Citizenship Act that deal with administrative powers. The instrument is necessary to maintain and support existing and ongoing administration of these provisions. The Citizenship Act specifies no conditions that need to be satisfied before the power to make the instrument may be exercised.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Citizenship (Authorisation) Instrument 2025
This Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Instrument
This Instrument repeals and remakes the Australian Citizenship Act 2007 – Instrument of Authorisation (Subsections 40(3), 40(4), 42(3) and 42(4)) 2015 – IMMI 15/063 (IMMI 15/063), which authorised persons and classes of persons under certain provisions of the Australian Citizenship Act 2007 (the Act) to exercise powers of the Minister concerning the collection of and access to identifying information. IMMI 15/063, would otherwise be repealed by sunsetting on 1 October 2025 by operation of section 50 of the Legislation Act 2003.
The Instrument authorises, for the purposes of subsections 40(3), 40(4), 42(3) and 42(4) of the Act, an entrusted person to:
- request one or more specified personal identifiers from a person making a citizenship application under Part 2 of the Act, or a person who has sought to sit a citizenship test; and
- access identifying information necessary for any of the purposes mentioned in subsection 42(4) of the Act.
The entrusted person authorised to request personal identifiers and access identifying information in the Instrument includes officers from the Department of Home Affairs and Services Australia, as well as others who fall within the scope of entrusted person as defined in section 3 of the Act. The main difference between the repealed instrument IMMI 15/063 and the current Instrument is that this Instrument has been remade to simplify the Department’s authorisations framework in relation to subsections 40(2), 40(3), 42(3), and 42(4) of the Act by:
- aligning terminology used in the Instrument with the Act;
- removing outdated and redundant lists of authorised officers in the current Schedules;
- reflecting current departmental structure and practices; and
- future proofing to ensure its continued currency.
Human rights implications
This Instrument may engage with the prohibition on interference with privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR)
Right to privacy
Article 17(1) of the ICCPR states:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Interferences with privacy may be permissible, where they are authorised by law and not arbitrary. In its General Comment 16, the United Nations Human Rights Committee (UNHRC) argued that the introduction of the concept of arbitrariness in Article 17 “is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be in any event, reasonable in the particular circumstances.” The UNHCR has interpreted ‘reasonableness’ in this context to mean that “any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case”. The term unlawful means that no interference can take place except as authorised under domestic law.
The Instrument engages the right to privacy in Article 17 of the ICCPR by authorising an entrusted person to request and access identifying information for the following purposes specified in subsection 42(4) of the Act:
(a) where obtaining the identifier is necessary for either or both of the following purposes;
(i) assisting in the identification of, and to authenticate the identity of, a person making an application under Part 2 of the Act or seeking to sit a test approved in a determination under section 23A of the Act; or
(ii) combating document and identity fraud in citizenship matters;
(b) disclosing identifying information in accordance with Division 5 in Part 2 of the Act;
(c) administering or managing the storage of identifying information;
(d) making identifying information available to the person to whom it relates;
(e) modifying identifying information to enable it to be matched with other identifying information;
(f) modifying identifying information in order to correct errors or ensure compliance with appropriate standards;
(g) the purposes of the Act or of the Migration Act 1958 or the regulations made under those Acts;
(h) complying with Australian laws.
Authorising an entrusted person to request and access identifying information enables applications for citizenship to be progressed, maintains integrity in the citizenship application process and combats document and identity fraud.
It is reasonable and necessary that an entrusted person is authorised by this Instrument to have access to applicants’ identifying information in assessing the identity of a person making a citizenship application or seeking to sit a citizenship test.
This Instrument operates to ensure that any disclosure of personal information will be required to comply with, and safeguarded by, requirements under the Privacy Act 1988, including the Australian Privacy Principles.
To the extent that this Instrument interferes with the right to privacy it is permissible because it is lawful, not arbitrary, and is reasonable, necessary and proportionate to the legitimate objective of assessing the identity of an applicant for Australian citizenship, administering citizenship tests and combatting document and identity fraud in citizenship matters.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights because to the extent it may limit human rights, those limitations are reasonable, necessary and proportionate to achieving a legitimate objective.
The Hon. Julian Hill MP
Assistant Minister for Citizenship, Customs and Multicultural Affairs
ATTACHMENT B
Details of the Australian Citizenship (Authorisation) Instrument 2025
Section 1 – Name of Instrument
This section sets out the name of the instrument, which is the Australian Citizenship (Authorisation) Instrument 2025.
Section 2 – Commencement
This section provides that the instrument commences on the day after registration.
Section 3 – Authority
This section provides that this instrument is made under subsections 40(2), 40(3), 42(3), and 42(4) of the Australian Citizenship Act 2007 (Citizenship Act).
Section 4 – Definitions
This section provides definitions for expressions used in the instrument.
The expression entrusted person is defined to have the same meaning as in section 3 of the Citizenship Act. This means that an entrusted person is:
- the Secretary of the Department; or
- an APS employee of the Department; or
- a person engaged under section 74 of the Public Service Act 1999 by the Secretary of the Department; or
- a person engaged by the Commonwealth, the Minister, the Secretary of the Department, or by an APS employee in the Department, to do work for the purposes of this Act or the regulations or of the Migration Act 1958 or the regulations made under that Act
Section 5 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Section 6 – Authorisation—requesting personal identifiers
Subsection 40(1) of the Citizenship Act provides that the following persons may request a person, in writing, to provide one or more specified personal identifiers for the purposes of the Minister being satisfied of the identity of a person in relation to an application under Part 2 of the Citizenship Act, or a person who has sought to sit a test approved in a determination under section 23A:
- the Minister (paragraph 40(1)(c));
- a person authorised under subsection 40(3) (paragraph 40(1)(d));
- a person who is included in a class of persons authorised under subsection 40(4) (paragraph 40(1)(e))
Subsection 40(3) – authorised person
Subsection 40(3) of the Citizenship Act provides that the Minister may, by writing, authorise a person for the purposes of paragraph 40(1)(d).
Subsection 6(1) of the instrument authorises, for the purposes of paragraph 40(1)(d) of the Citizenship Act, a person who is an entrusted person to request, in writing, that a person mentioned in subsection 40(1)(a) or (b) of the Citizenship Act, provide one or more personal identifiers.
Subsection 40(4) – authorised class of persons
Subsection 40(4) of the Citizenship Act provides that the Minister may, by legislative instrument, authorise a class of persons for the purposes of paragraph 40(1)(e).
Subsection 6(2) of the instrument, for the purposes of paragraph 40(1)(e) of the Citizenship Act, provides that an entrusted person is a class of persons authorised to request, in writing, that a person mentioned in subsection 40(1)(a) or (b) of the Citizenship Act, provide one or more personal identifiers. The intention is that the scope of this class of persons is determined with reference to the expression entrusted person, as defined under section 3 of the Citizenship Act.
Section 7 – Authorisation—accessing identifying information
Subsection 42(3) of the Citizenship Act provides that the Minister may, in writing, authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation. Under subsection 42(4), the Minister must specify one or more of the purposes mentioned under that subsection as the purpose or purposes for which access is authorised.
Subsection 7(1) of the instrument authorises a person who is an entrusted person to access any kind of identifying information for any one or more of the purposes specified in subsection 7(2). Identifying information is defined in section 3 of the Citizenship Act.
Subsection 7(2) of the instrument sets out the purposes that are specified for the purposes of subsection 42(4) of the Citizenship Act. The intention is that all of the purposes that are mentioned under subsection 42(4) of the Citizenship Act are specified as a purpose for which an entrusted person is authorised to access any kind of identifying information:
- where obtaining the identifier is necessary for either or both of the following purposes:
- assisting in the identification of, and to authenticate the identity of, a person making an application under Part 2 of the Act or seeking to sit a test approved in a determination under section 23A of the Act; or
- combating document and identity fraud in citizenship matters;
- disclosing identifying information in accordance with Division 5 in Part 2 of the Act;
- administering or managing the storage of identifying information;
- making identifying information available to the person to whom it relates;
- modifying identifying information to enable it to be matched with other identifying information;
- modifying identifying information in order to correct errors or ensure compliance with appropriate standards;
- the purposes of the Act or of the Migration Act 1958 or the regulations made under those Acts;
- complying with Australian laws.
Schedule 1 – Repeals
Item [1] – The whole of the instrument
Item 1 of Schedule 1 to the instrument operates to repeal the whole of Australian Citizenship Act 2007 – Instrument of Authorisation (Subsections 40(3), 40(4), 42(3) and 42(4)) 2015 – IMMI 15/063. That instrument would otherwise sunset on 1 October 2025 by operation of section 50 of the Legislation Act 2003.