EXPLANATORY STATEMENT
Australian Citizenship Act 2007
Australian Citizenship (Class of Persons Who May Receive a Pledge of Commitment) Amendment Instrument (LIN 20/247) 2020
(subsection 27(5))
- The instrument, LIN 20/247, is made under subsection 27(5) of the Australian Citizenship Act 2007 (the Act).
- In accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA), the instrument amends the Australian Citizenship (LIN 20/084: Persons Who May Receive a Pledge of Commitment) Instrument 2019 (F2020LO1139), made under subsection 27(5) of the Act. Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- The instrument operates to authorise a class of persons who are able to receive the Pledge of Commitment for Australian citizenship (the Pledge). Section 27(5) of the Act empowers the Minister to authorise a class of persons to receive the pledge. Schedule 1 of the Act establishes the form in which a pledge must be undertaken. Subsection 26(1) of the Act requires a person to make the Pledge before they become an Australian citizen, unless they meet the requirements set out in paragraphs 26(1)(a) to (c) of the Act.
- The purpose of the instrument is to amend LIN 20/084 to include Governors of a State in Australia in a class of persons, who are authorised to receive the Pledge. This category was omitted from LIN 20/084 because of a drafting error.
- Consultation was not required as this instrument rectifies a drafting error to include Governors of States of Australia as a class of persons that was omitted from LIN 20/084 when the instrument was made. The change is considered to be minor in nature. This is noted in accordance with paragraph 15J(2)(e) of the Legislation Act 2003.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 43113).
- Under section 42 of the Legislation Act 2003, the instrument is subject to disallowance and therefore a Statement of Compatibility with Human Rights has been provided in Attachment A.
- The instrument commences on the day after it is registered on the Federal Register of Legislation.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Citizenship (Class of Persons Who May Receive a Pledge of Commitment) Amendment Instrument (LIN 20/247) 2020
This Disallowable Legislative 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 Disallowable Legislative Instrument
The current instrument (LIN 20/084) operates to authorise the class of persons who are able to receive the pledge of commitment for Australian citizenship. Section 27(5) of the Act empowers the Minister to authorise a class of persons to receive the pledge. Subsection 26(1) of the Australian Citizenship Act 2007 (the Act) requires a person to make a pledge of commitment to Australia before they become an Australian citizen, unless they meet the requirements set out in paragraphs 26(1)(a) to (c) of the Act.
The purpose of the amendment instrument (LIN 20/247) is to update the class of persons as listed in Schedule 1 to the instrument who are authorised to receive a pledge of commitment to include a class of persons consisting of a person who is a Governor of a State of the Commonwealth of Australia.
This amendment is being initiated as the category of Governor of a State was omitted from the main Instrument (LIN 20/084) in an administrative error.
These changes may have no impact on those persons previously authorised under Schedule 1 to the Australian Citizenship (LIN 20/084: Class of Persons Who May Receive a Pledge of Commitment) Instrument 2020.
Human rights implications
This Disallowable Legislative Instrument is technical in nature and does not engage any of the applicable rights or freedoms.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon Minister Alan Tudge
Minister for Population, Cities and Urban Infrastructure
Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Overview
The Australian Citizenship (Class of Persons Who May Receive a Pledge of Commitment) Amendment Instrument (LIN 20/247) 2020 was enacted to amend the Australian Citizenship (LIN 20/084: Persons Who May Receive a Pledge of Commitment) Instrument 2019, thereby correcting an administrative oversight. The original instrument inadvertently omitted the category of Governors of a State of Australia from the class of persons who could receive the Pledge of Commitment, which is a necessary step for becoming an Australian citizen unless certain exemptions apply. The amendment instrument is a minor adjustment, designed to rectify this error without requiring additional consultation or assessment, as it is considered a minor amendment under the Legislation Act 2003. The instrument was made under the authority of the Australian Citizenship Act 2007 and is subject to disallowance, with a Statement of Compatibility with Human Rights provided to ensure it aligns with international human rights standards. This amendment instrument is intended to have no substantive impact on the existing authorised classes of persons but ensures the legislative framework accurately reflects the intended scope of who can receive the Pledge of Commitment.
Scope and Application
The Australian Citizenship (Class of Persons Who May Receive a Pledge of Commitment) Amendment Instrument (LIN 20/247) 2020 amends the Australian Citizenship (LIN 20/084: Class of Persons Who May Receive a Pledge of Commitment) Instrument 2019 to correct an omission in the original instrument. Specifically, the amendment rectifies a drafting error by including Governors of States in the class of persons who are authorised to receive the Pledge of Commitment for Australian citizenship. This legislative instrument is made under subsection 27(5) of the Australian Citizenship Act 2007, which empowers the Minister to determine which classes of persons can receive the Pledge. The amendment is considered minor and did not require consultation or a Regulatory Impact Statement, as confirmed by the Office of Best Practice Regulation. The instrument is subject to disallowance, and a Statement of Compatibility with Human Rights has been provided, indicating that the amendment does not engage any of the applicable rights or freedoms and is compatible with human rights. The instrument's commencement is scheduled for the day after it is registered on the Federal Register of Legislation.
Key Provisions
The Australian Citizenship (Class of Persons Who May Receive a Pledge of Commitment) Amendment Instrument (LIN 20/247) 2020 amends the Australian Citizenship (LIN 20/084: Persons Who May Receive a Pledge of Commitment) Instrument 2019 to correct an administrative omission. Section 27(5) of the Australian Citizenship Act 2007 empowers the Minister to authorise classes of persons who may receive the Pledge of Commitment for Australian citizenship. The primary objective of this instrument is to rectify an error by including Governors of a State in Australia within the class of persons who are authorised to receive the pledge. This change is considered minor and does not require consultation or a Regulatory Impact Statement as per the Legislation Act 2003. Schedule 1 of the Act lists the classes of persons authorised to receive the pledge, and the amendment adds Governors of States to this schedule.
The Australian Citizenship Act 2007 imposes obligations on applicants for Australian citizenship to make a Pledge of Commitment to Australia, as per section 26(1), unless they meet specific exceptions listed in paragraphs 26(1)(a) to (c). The Act mandates that the pledge must be in a form prescribed by Schedule 1, and section 27(5) allows the Minister to specify which classes of persons are authorised to receive this pledge. By including Governors of States in the authorised class, the Act ensures that these individuals can also participate in the pledge process before their citizenship is granted. This requirement underscores the importance of the pledge as a commitment to the values and responsibilities of Australian citizenship.
Under the Australian Citizenship Act 2007, failure to comply with the requirements to make the Pledge of Commitment could potentially lead to complications in the citizenship process. While the Act does not explicitly state specific penalties for non-compliance, the underlying principle is that the pledge is a necessary step in the pathway to citizenship. Any significant deviation from this requirement could result in the application being considered incomplete or ineligible, which might lead to administrative delays or denial of citizenship. Additionally, the instrument is subject to disallowance under section 42 of the Legislation Act 2003, and a Statement of Compatibility with Human Rights has been provided to ensure the changes do not infringe on any human rights.