EXPLANATORY STATEMENT
Australian Citizenship Act 2007
Australian Citizenship (Class of Persons Who May Receive a Pledge of Commitment) Authorisation (LIN 23/043) 2023
(subsection 27(5))
- The instrument, Departmental reference LIN 23/043, is made under subsection 27(5) of the Australian Citizenship Act 2007 (the Act).
- The instrument commences retrospectively on, and is limited in effect to, 20 March 2022 and is a legislative instrument for the Legislation Act 2003 (Legislation Act).
Purpose
3. Subsection 26(1) of the Act requires a person to make a pledge of commitment to become an Australian citizen, unless they are a person to whom paragraphs 26(1)(a), (b) or (c) of the Act apply. Section 27 of the Act sets out how the pledge of commitment is to be made, and subsection 27(3) provides that the pledge of commitment must be made before a person mentioned in that provision. Paragraph 27(3)(c) provides that a pledge of commitment may be made before a person who is included in a class of persons authorised under subsection 27(5) of the Act. Subsection 27(5) of the Act provides that the Minister may, by legislative instrument, authorise a class of persons for the purposes of paragraph 27(3)(c).
4. The Australian Citizenship (LIN 22/074: Classes of Persons Who May Receive a Pledge of Commitment) Authorisation 2022 (LIN 22/074) authorises the classes of persons who may receive a pledge of commitment. However, LIN 22/074 does not authorise members of the NSW Legislative Assembly to receive a pledge of commitment.
5. The purpose of the instrument is to retrospectively authorise a class of persons to receive a pledge of commitment for 20 March 2022, namely members of the NSW Legislative Assembly.
6. As a result of a last minute change to a presiding officer by organisers, 32 conferees who attended a citizenship ceremony on 20 March 2022 made the pledge of commitment before a member of the NSW Legislative Assembly. Such persons are not listed as a class of persons who may receive a pledge of commitment in LIN 22/074.
7. Retrospectively authorising members of the NSW Legislative Assembly to receive a pledge of commitment will ensure that those conferees who made the pledge on 22 March 2022 will be taken to have become citizens on that day, and will remove the burden on affected conferees, councils and the Department of Home Affairs to arrange for the citizenship pledge to be remade.
8. In accordance with subsection 12(1A) of the Legislation Act, section 2 of the instrument provides that the instrument is taken to have commenced on 20 March 2022 and is taken to have been repealed on 21 March 2022. The effect of this provision is that a pledge of commitment which was made before a person who is a member of a class of persons mentioned in section 3 on 20 March 2022 meets the requirements set out by subsection 27(3) of the Act.
9. The purpose of retrospective commencement of the instrument is to ensure that the affected pledges given on 20 March 2022 are valid, by ensuring that persons who gave a pledge to a member of the NSW Legislative Assembly validly became Australian citizens pursuant to section 20 of the Act.
10. For subsection 12(2) of the Legislation Act, the instrument does not affect the rights of any person so as to disadvantage the person, and does not impose a liability on any person in respect of anything done or omitted to be done before the instrument is registered.
Consultation
11. For paragraph 15J(2)(e) of the Legislation Act, consultation was not considered necessary as LIN 23/043 positively affects 32 conferees only.
12. The Office of Best Practice Regulation (OBPR) advised for LIN22/074 that a Regulatory Impact Statement was not required (OBPR Reference 22-03597).
Details of the instrument
13. Section 1 sets out the name of the instrument.
14. Section 2 provides for the limited duration of the instrument, being for the day of 20 March 2022. The instrument is taken to have been repealed on 21 March 2022.
15. Section 3 of the instrument provides that a member of the NSW Legislative Assembly is a person in a class of persons authorised to receive a pledge of commitment to become an Australian citizen.
16. Section 4 of the instrument provides that it does not repeal any instrument, expressly or implicitly.
Parliamentary scrutiny
17. The instrument is subject to disallowance under section 42 of the Legislation Act. A Statement of Compatibility with Human Rights has been prepared in relation to the instrument, and provides that there is no impact on human rights. The Statement is included in Attachment A to this explanatory statement.
18. The instrument was made by the Minister for Immigration, Citizenship and Multicultural Affairs in accordance with subsection 27(5) of the Act.
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) Authorisation (LIN 23/043) 2023
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 Disallowable Legislative Instrument operates to authorise classes of persons who are able to receive the pledge of commitment for Australian citizenship. 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. Persons who may receive the pledge are specified under section 27 of the Act.
The Disallowable Legislative Instrument will, pursuant to subsection 27(5) of the Act, retrospectively authorise Dr Marjorie O’Neill MP, a member of the Legislative Assembly of NSW, as a person who may receive the citizenship pledge of commitment for a citizenship ceremony on 20 March 2022, to ensure that pledges received by her on that day are valid. The Disallowable Legislative Instrument provides for a class of persons who are authorised to receive a pledge of commitment to become an Australian citizen.
The Disallowable Legislative Instrument has no effect other than in relation to the pledges received by Dr Marjorie O’Neill on 20 March 2022.
The Disallowable Legislative Instrument will apply retrospectively commencing on 20 March 2022. This will ensure that applicants who made a pledge before Dr Marjorie O’Neill on that day will not be required to remake the pledge in order to have lawfully and validly acquired citizenship.
Human rights implications
This Disallowable Legislative Instrument 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.