EXPLANATORY STATEMENT
Statutory Rules No. 351
Australian Citizenship Regulations (Amendment)
(Issued by the authority of the Minister for Immigration and Ethnic Affairs)
Section 53 of the Australian Citizenship Act 1948 (the Act), empowers the Governor-General to make regulations not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed for carrying out or giving effect to the Act.
The Act has recently been amended by the Australian Citizenship Amendment Act 1984 (the amending Act), (Act No. 129) which received Royal Assent on 25 October 1984.
Section 2 of the amending Act provides:
“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, 34 and 35, sub-section 37(2) and section 39 shall come into operation on a day to be fixed by Proclamation.”
Amendments were required to the Australian Citizenship Regulations (the Principal Regulations) consequential to that part of the amending Act which came into operation pursuant to sub-section 2(1) of the amending Act. The date of operation of that part of the amending Act was 22 November 1984.
Details of the amending regulations are as follows:
Regulation 1 identifies the Australian Citizenship Regulations as the “Principal Regulations”.
Regulation 2 amends regulation 3 of the Principal Regulations -
(a) by inserting the definition of “register” after the definition of “Papua”. “Register” means the Register of Births Abroad referred to in sub-regulation 7(1) of the Principal Regulations before the commencement of the amending regulations or to the Register of Citizenship by Descent referred to in sub-regulation 7(1) of the Principal Regulations as in force after the commencement of the amending regulations or to both such registers as the circumstances require; and
(b) by the omission of sub-regulation 3(2) which describes when a person shall be deemed to act as a citizenship agent.
Regulation 3 repeals regulations 7, 7A, 7B, 7C, 7D, 7E and 7F of the Principal Regulations and substitutes new regulations 7, 7A, 7B, 7C and 7D. The Principal Regulations gave effect to section 11 of the Act which was repealed by the amending Act and substituted with new section 10B which provides for the circumstances in which a person born outside Australia is an Australian citizen by descent. New regulations 7, 7A, 7B, 7C and 7D give effect to the provisions of section 10B as follows:
Regulation 7
This provides for each Australian consulate to keep a bound volume of forms. The forms are to be in accordance with Form 2 contained in the Second Schedule to the Principal Regulations as amended by the regulations. The bound volume of forms is to be known as the Register of Citizenship by Descent.
Regulation 7A
Sub-regulation 7A(1) provides that an application to register the name of a person for the purposes of Section 10B will not be made unless the application contains the following particulars -
(a) the full name of the person to be registered;
(b) the date and place of birth of the person;
(c) the usual residential and postal addresses of the person;
(d) the full names of the natural parents of the person;
(e) the date and place of birth of each of those parents;
(f) particulars of -
(i) the citizenship and nationality of each of those parents at the time of the birth of the person; and
(ii) in the case of any parent who is an Australian citizen, the manner of acquisition of citizenship and, where citizenship was acquired by descent, any period of residence of the parent in Australia.
Sub-regulation 7A(2) provides that the validity of the registration of the name of a person for the purposes of
section 10B will not be affected by a failure to comply with sub-regulation 7A(1) in relation to the application to which that regulation relates.
Regulation 7B
This regulation provides for an authorised officer to correct an error or omission in the register and to sign and date the correction in the margin of the register alongside the correction.
Regulation 7C
Sub-regulation 7C(1) provides that where the Minister or a person authorised by the Minister for the purpose of approving cancellations, has, by instrument in writing, approved the cancellation of an entry in the register, then an authorised officer will be able to cancel the entry accordingly.
Sub-regulation 7C(2) provides that the circumstances which may lead to cancellation of an entry are confined to -
(a) cases in which the Minister or person authorized is satisfied on reasonable grounds that the entry has been made on the basis of false information;
(b) cases in which a person’s name has been or is to be re-registered elsewhere in the register, in accordance with regulation 13.
Sub-regulation 7C(3) provides for an authorized officer who cancels an entry, to endorse in the margin that the entry has been cancelled pursuant to regulation 7C and, he will sign and date the endorsement.
Sub-regulation 7C(4) provides that a cancellation may not be effected unless the person considers that the purposes of cancellation would not be achieved by a correction of that entry.
Regulation 7D
This regulation entitles a person, upon application in writing to an authorised officer, to be furnished with an extract from any part of the register as specified in the application.
Regulation 4 amends regulation 8 of the Principal Regulations -
(a) by omitting sub-regulation (2) and (2A). Sub-regulation 8(2) presently provides for the application for a declaratory certificate of citizenship which is to bear a photograph of the applicant to be accompanied by a duly certified
photograph of certain dimensions of the applicant. Certification that the photograph is a photograph of the applicant is presently carried out by any of the class of persons prescribed under sub-regulation 8(2A).
(b) by omitting paragraph (3)(g) which makes reference to the word “father” and substituting a new paragraph (3)(g) which will provide for an Australian born person who applies for a declaratory certificate of citizenship to declare whether, at the time of the applicant’s birth -
(i) where that time is before the commencement of the amending Act, the father of the applicant; or
(ii) where that time is after the commencement of the amending Act, a parent of the applicant,
was a diplomatic officer, or consular representative, in Australia of a foreign country.
(c) by inserting after paragraph (4) (c) new paragraph (4)(ca) which will provide for a non-Australian born person, who applies for a declaratory certificate of citizenship to supply, as an additional particular, the details of registration pursuant to section 10B of the Act, if such registration took place;
(d) by omitting from sub-paragraph (5) (a)(i) of the Principal Regulations the word “or” where it occurs for the second time;
(e) by omitting sub-paragraph (5)(a)(ii) and substituting new sub-paragraphs (5) (a)(ii) and (5) (a) (iii).
New sub-paragraph (5)(a)(ii) makes reference to sub-section 14(9) of the Act as in force before the commencement of the amending Act while sub-paragraph (5) (a) (iii) refers to sub-section 13(10) as in force after the commencement of the amending Act. Sub-section 13(10), which is in substantially similar terms to the repealed sub-section 14(9) provides the Minister with a discretion to include in a certificate of Australian citizenship either at the time of granting the certificate or by later amendment, the name of a child who has not attained the age of 16 years and of whom the grantee is a responsible parent.
(f) by omitting from sub-regulation (5) the reference to “guardian” by deleting the words “or guardian” wherever they occur.
Regulation 5 amends regulation 11 of the Principal Regulations by omitting paragraph (lb) and substituting new paragraphs (1b), (1c) and (1d):
Regulation 11 of the Principal Regulations prescribes matters for the purposes of section 36 of the Act, paragraph (1)(c) of which provides for a person who applies for a certificate of Australian citizenship (the applicant) to furnish in support of the application “such other matters as are prescribed”.
Paragraph 11(1b) of the regulations requires the applicant to supply particulars of confinement where the applicant has been confined, in Australia, in a prison or psychiatric institution by order of a court made in relation to criminal proceedings against that applicant;
Paragraph 11(1c) requires the applicant to supply particulars of release where the applicant has been released from imprisonment on parole or upon licence, or upon giving security;
Paragraph 11(1d) requires an applicant to supply particulars of proceedings where the applicant is aware of any proceedings pending against the applicant for an offence against a law of the Commonwealth, a State or Territory.
Regulation 6 amends regulation 13 of the Principal Regulations by omitting “section 18” and substituting the words “sub-section 18(1)”:
Section 18 of the Act has been amended by the omission of sub-section (1), (1A), (2), (3) and (3A) which have been substituted with sub-section (1).
Regulation 7 provides for the insertion of regulation 13A after regulation 13 of the Principal Regulations:
Sub-regulation 13A(1) requires that, for the purposes of section 23AA of the Act, a person wishing to resume Australian citizenship shall furnish to the Minister a statement to that effect and a declaration in accordance with new Form 9A which is set out in the Second Schedule to the Principal Regulations as amended;
Sub-regulation 13A(2) requires Form 9A to be completed in duplicate;
Sub-regulation 13A(3) requires that, for the purposes of sub-section 23AA(2) of the Act, the original declaration made in accordance with sub-regulation 13A(1) is to be filed in the Department of Immigration and Ethnic Affairs and that the copy, certified by an authorised officer, is to be sent to the person by whom the declaration has been made.
(Section 23AA of the Act provides for persons to resume Australian citizenship previously lost under section 17 of the Act).
Regulation 8 amends sub-regulation 17(1) of the Principal Regulations to allow declarations made pursuant to sections 23A and 23B of the Act to be forwarded, for the purposes of registration to the Secretary or to a person authorised by the Secretary by instrument in writing.
Regulation 9 introduces regulations 21 and 21A to be inserted after regulation 20 of the Principal Regulations:
Regulation 21 provides that a re-entry permit issued and in force under the Immigration Ordinance of the Territory of Cocos (Keeling) Islands is to be treated as a return endorsement for the purposes of the Migration Act 1958.
Sub-regulation 21A(1) declares that, for the purposes of sub-paragraph 5A(1)(d)(ii), persons who have, or have had an association with a prescribed Territory, who are not the holders of, or deemed to be included in, a document or endorsement referred to in sub-paragraph 5A(1)(d)(i) of the Act, are to be permanent residents for the purposes of the Act.
Sub-regulation 21A(2) provides that, in relation to persons included in a class of persons declared to be permanent residents under sub-regulation 21A(1), the specified period of association with a prescribed Territory referred to in sub-paragraph 5A(1)(d)(ii) of the Act will be a period when the person was not present in a prescribed Territory or Australia.
Regulation 10 repeals regulations 22, 23, 24, 25, 26 and 27 of the Principal Regulations and substitutes a new regulation 22:
Regulation 22 of the Principal Regulations provided for persons who intended to act as citizenship agents to advise, in writing, the Secretary or an authorized officer of the Department of Immigration and Ethnic Affairs to await the receipt of a written acknowledgement of receipt of the notice;
Regulation 23 gave the Minister for Immigration and Ethnic Affairs a discretion to direct a person not to act as a citizenship agent where satisfied that the person was not a fit and proper person to act as a citizenship agent;
Regulation 24 provided that the terms “registered” or “approved” could not be used by a person who acted as a citizenship agent.
Regulation 25 prescribed the maximum fee ($2.10) which was able to be charged by a citizenship agent who rendered a service in connexion with or relating to an application for citizenship.
Regulation 26 provided for the Minister for Immigration and Ethnic Affairs to fix a maximum fee for services that were rendered by a citizenship agent who provided such service where the maximum charge for the service had not been or was not at the time the service was rendered fixed by or under the Principal Regulations or the Citizenship Regulations which were in force at the time the service had been rendered. Under the Principal Regulations the Minister was unable to fix a fee for a service later than one year after the service was rendered.
Regulation 27 provided for a person to furnish in writing to an authorised officer particulars of any fee, commission or other reward charged or proposed to be charged by him or of any agreement entered into or proposed to be entered into by him in respect of an application under the Australian Citizenship Act 1948.
New sub-regulation 22(1) requires that where -
(a) the Minister makes a decision refusing to cause an applicant referred to in sub-regulation 5(4) to be registered as an Australian protected person; or
(b) the Minister or a person authorized by the Minister under sub-regulation 7C(1) makes a decision approving the cancellation of an entry in the register referred to in paragraph 7C(2)(a)
the Minister or person authorized, as the case requires, shall advise by notice in writing given not later than 30 days after the date of the decision, the person or persons whose interests are affected by the decision of the making of the decision and of the grounds for the decision.
New sub-regulation 22(2) provides that an application may be made to the Administrative Appeals Tribunal for a review of a decision referred to in new sub-regulation 22(1).
New sub-regulation 22(3) requires that when a person is advised of a decision in accordance with new sub-regulation 22(1) there is to be provided, in addition, a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.
New sub-regulation 22(4) provides that a failure to comply with new sub-regulation 22(3) in relation to a decision shall not be taken to affect the validity of the decision.
Regulation 11 provides for the Register of Births Abroad referred to in sub-regulation 7(1) of the Principal Regulations, as in force before the commencement of the amending regulations, to continue to be kept at each Australian consulate in accordance with that sub-regulation and, unless a contrary intention appears, the provisions of the Principal Regulations as amended will apply to that register accordingly.
Sub-regulation 12(1) enables a person who had been registered pursuant to regulation 7 of the Principal Regulations, as in force before the commencement of the amending regulations and who would have, been entitled to re-registration pursuant to regulation 7a of the Principal Regulations as in force before the commencement of the amending regulations, to register the name of a person pursuant to regulation 7A of the Principal Regulations as amended by the amending regulations.
Sub-regulation 12(2) provides that where re-registration has occurred in accordance with sub-regulation 12(1), the authorised officer effecting the re-registration shall write or cause to be written on the page in the Register of Births Abroad a notation which indicates that the name of the person has been registered pursuant to section 10B of the Act (that is to say, registration in the Register of Citizenship by Descent) and by inserting the identifying number of that registration. The notation will be in the following form -
“The name of (insert full name), being the person whose birth is registered under this entry, is registered under (insert designated number of the relevant form) pursuant to section 10B of the Australian Citizenship Act 1948.”
Regulation 13 amends the second schedule to the Principal Regulations -
(a) by omitting existing Form 2 and substituting a new Form 2 which will be the form to be used in the Register of Citizenship by Descent;
(b) by omitting from existing form 9 “( ) of section 18” and substituting “18(1)”; and
(c) by inserting after existing Form 9, new Form 9A which will be the form of declaration made by a person under the provisions of regulation 13A who wishes to resume Australian citizenship for the purpose of section 23AA of the Act