EXPLANATORY STATEMENT
Issued by authority of the Minister for Home Affairs and Minister for Immigration and Citizenship
Australian Citizenship Act 2007
Australian Citizenship (special residence requirement) Amendment (Measures No. 1) Instrument 2026
The instrument Australian Citizenship (special residence requirement) Amendment (Measures No. 1) Instrument 2026 (departmental reference LIN 26/024) (the Instrument) is made under section 22C of the Australian Citizenship Act 2007 (the Citizenship Act).
The Instrument amends the Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021 (LIN 21/069). Subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act) relevantly 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.
The Instrument commences on the day after it is registered on the Federal Register of Legislation. It is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).
The purpose of the Instrument is to expand the kinds of work that are specified for the purposes of paragraph 22B(1)(a) of the Citizenship Act. It also makes other minor technical and drafting updates to the Principal Instrument, including to update a reference to one of the activities specified for the purposes of subparagraph 22A(1)(a)(i) of the Citizenship Act.
A person who applies for Australian citizenship by conferral must satisfy the criteria under section 21 of the Citizenship Act. Paragraph 21(2)(c) requires that an applicant must satisfy criteria related to residence in Australia. Most applicants will seek to satisfy the general residence criteria in section 22 of the Citizenship Act.
General residence criteria include, amongst other requirements, consideration of the applicant’s prior residence in Australia, as well as the likelihood that they will reside or continue to reside in Australia or otherwise maintain a close and ongoing connection to Australia after being conferred Australian citizenship. Broadly, a person will satisfy the general residence criteria related to prior residence where they have been absent from Australia for less than 12 months (cumulatively) in the period of four years before making an application for citizenship, and less than 90 days (cumulatively) in the 12 months prior to making an application.
As an alternative to the general residence criteria, an applicant for citizenship by conferral may demonstrate that they meet the special residence requirements under sections 22A and 22B of the Citizenship Act. Special residence is intended to apply in limited and exceptional circumstances, where an applicant cannot otherwise satisfy the general residence criteria due to regular or prolonged periods of absence from Australia in connection with a specified activity for a specified organisation, or otherwise in connection with a specified kind of work. Relevant activities, organisations and kinds of work are specified in the Principal Instrument LIN 21/069.
The Instrument amends the Principal Instrument LIN 21/069 to:
- amend one of the current kinds of work specified in the Principal Instrument, in relation to research and development;
- insert an additional kind of work, relating to the work of a minister of religion in a senior leadership position in a religious organisation;
for the purposes of the special residence requirements under section 22B of the Citizenship Act.
The first kind of work specified under the Instrument is research and development by academics who hold a Doctor of Philosophy, who are an employee of an Australian university, and where the work is research and development of benefit to Australia. This kind of work mirrors the existing arrangements for the kind of work done by scientists who hold a Doctor Philosophy. The amendment of paragraph 6(2)(d) of the Principal Instrument provides that work that is research and development of benefit to Australia is work done by either a scientist or an academic (where before the amendment by this Instrument, paragraph 6(2)(d) of the Principal Instrument only specified research and development work by a scientist). The amendment recognises the need for frequent travel overseas in connection with that work, whether the person engaging in the work is a scientist or an academic – such as attending or presenting at international conferences, undertaking collaborative research or presenting research outcomes.
The second kind of work specified in the Principal Instrument as a result of the amendments in this instrument is the work of a minister of religion in a senior leadership position in a religious organisation. The amendment is intended to ensure that senior religious leaders are not disadvantaged in meeting residence requirements for Australian citizenship by virtue of frequent overseas travel required in connection with that kind of work. The amendment makes clear that it is work done as a minister of religion specifically in a senior leadership position in a religious organisation that is covered, where a senior leader may be called on to travel regularly outside Australia as part of their work, including senior religious leadership and pastoral duties, and executive governance or administration functions of the organisation. The specified kind of work recognises the responsibilities of senior religious leaders in a religious organisation whose duties and work extend across multiple countries and who contribute to the Australian community through organisational leadership, community service, and support for culturally and linguistically diverse communities.
The Instrument also makes a number of minor technical amendments to the Principal Instrument to align with Office of Parliamentary Counsel drafting practice. A reference to “Fed Cup” is replaced with a reference to the “Billie Jean King Cup”, reflecting the current name of this tennis event.
The Department of Home Affairs consulted with the Attorney-General’s Department in relation to matters concerning the approach to developing the Instrument. The amendments of the Principal Instrument in relation to research and development work by academics were informed by previous engagement between the Department and a number of universities. The Department did not undertake any other consultation with stakeholders in relation to the Instrument, noting that the amendments are intended to have a beneficial effect and recognise additional kinds of work for the purposes of the special residence requirements in section 22B of the Act.
A Statement of Compatibility with Human Rights has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Instrument is compatible with human rights. A copy of the Statement is at Attachment A.
Further details of the Instrument are set out in Attachment B.
The Instrument is made under the Citizenship Act. It is a disallowable legislative instrument for the purposes of section 42 of the Legislation Act.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Citizenship (special residence requirement) Amendment (Measures No. 1) Instrument 2026
Overview of the Disallowable Legislative Instrument
The Instrument Australian Citizenship (special residence requirement) Amendment (Measures No. 1) Instrument 2026 (departmental reference LIN 26/024) (the Instrument) is made under section 22C of the Australian Citizenship Act 2007 (Citizenship Act).
The Instrument amends the Australian Citizenship (special residence requirement) Instrument (LIN 21/069) 2021 (LIN 21/069). Subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act) relevantly 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.
The Instrument commences on the day after it is registered on the Federal Register of Legislation. It is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).
The purpose of the Instrument is to expand the kinds of work that are specified for the purposes of paragraph 22B(1)(a) of the Citizenship Act. It also makes a minor technical amendment to one of the activities specified for the purposes of subparagraph 22A(1)(a)(i) of the Citizenship Act, and other minor and technical drafting updates to the Principal Instrument (LIN 21/069).
A person who applies for Australian citizenship by conferral must satisfy the criteria under section 21 of the Citizenship Act. Paragraph 21(2)(c) requires that an applicant must satisfy criteria related to residence in Australia. Most applicants will seek to satisfy the general residence criteria in section 22 of the Citizenship Act.
General residence criteria include, amongst other requirements, consideration of the applicant’s prior residence in Australia, as well as the likelihood that they will reside or continue to reside in Australia or otherwise maintain a close and ongoing connection to Australia after being conferred Australian citizenship. Broadly, a person will satisfy the general residence criteria related to prior residence where they have been absent from Australia for less than 12 months (cumulatively) in the period of four years before making an application for citizenship, and less than 90 days (cumulatively) in the 12 months prior to making an application.
As an alternative to the general residence criteria, an applicant for citizenship by conferral may demonstrate that they meet the special residence requirements under sections 22A and 22B of the Citizenship Act. Special residence is intended to apply in limited and exceptional circumstances, where an applicant cannot otherwise satisfy the general residence criteria due to regular or prolonged periods of absence from Australia in connection with a specified activity for a specified organisation, or otherwise in connection with a specified kind of work. Relevant activities, organisations and kinds of work are specified in the Principal Instrument LIN 21/069.
The Instrument amends the Principal Instrument LIN 21/069 to:
- amend one of the current kinds of work specified in the Principal Instrument, in relation to research and development;
- insert an additional kind of work, relating to the work of a minister of religion in a senior leadership position in a religious organisation;
for the purposes of the special residence requirements under section 22B of the Citizenship Act.
The first kind of work specified under the Instrument is research and development by academics who hold a Doctor of Philosophy, who are an employee of an Australian university, and where the work is research and development of benefit to Australia. This kind of work mirrors the existing arrangements for the kind of work done by scientists who hold a Doctor Philosophy. The amendment of paragraph 6(2)(d) of the Principal Instrument provides that work that is research and development of benefit to Australia is work done by either a scientist or an academic (where before the amendment by this Instrument, paragraph 6(2)(d) of the Principal Instrument only specified research and development work by a scientist). The amendment recognises the need for frequent travel overseas in connection with that work, whether the person engaging in the work is a scientist or an academic – such as attending or presenting at international conferences, undertaking collaborative research or presenting research outcomes.
The second kind of work specified in the Principal Instrument as a result of the amendments in this instrument is the work of a minister of religion in a senior leadership position in a religious organisation. The amendment is intended to ensure that senior religious leaders are not disadvantaged in meeting residence requirements for Australian citizenship by virtue of frequent overseas travel required in connection with that kind of work. The amendment makes clear that it is work done as a minister of religion specifically in a senior leadership position in a religious organisation that is covered, where a senior leader may be called on to travel regularly outside Australia as part of their work, including senior religious leadership and pastoral duties, and executive governance or administration functions of the organisation. The specified kind of work recognises the responsibilities of senior religious leaders in a religious organisation whose duties and work extend across multiple countries and who contribute to the Australian community through organisational leadership, community service, and support for culturally and linguistically diverse communities.
The Instrument also makes a number of minor technical amendments to the Principal Instrument to align with Office of Parliamentary Counsel drafting practice. A reference to “Fed Cup” is replaced with a reference to the “Billie Jean King Cup”, reflecting the current name of this tennis event.
Human rights implications
This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms.
The Instrument has the effect of broadening the category of people who are eligible for consideration under the special residence requirements as specified in sections 22A and 22B of the Citizenship Act.
The amendments recognise the unique work, and associated travel demands, of people who are engaged in work that is undertaken by senior religious leaders whose work extends to other countries, as well as PhD academics employed by an Australian university undertaking research and development in their field of speciality. The Instrument also reflects the renaming of the “Fed Cup” to the “Billie Jean King Cup”, which is a specified activity for section 22A of the Citizenship Act.
The changes do not limit or remove any other rights or entitlements provided under the Citizenship Act.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon Tony Burke MP
Minister for Home Affairs
Minister for Immigration and Citizenship
ATTACHMENT B
Details of the Australian Citizenship (special residence requirement) Amendment (Measures No. 1) Instrument 2026
Section 1 – Name
This section provides that the title of the Instrument is the Australian Citizenship (special residence requirement) Amendment (Measures No. 1) Instrument 2026.
Section 2 – Commencement
This section provides that the Instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the Instrument is made under section 22C of the Australian Citizenship Act 2007.
Section 4 – 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.
Schedule 1 – Amendments
Australian Citizenship (special residence requirement) Amendment (Measures No. 1) Instrument 2026
Item 1 – After section 2
This item inserts new section 2A in the Principal Instrument, to set out that section 22C of the Citizenship Act is the applicable authorising provision for the Principal Instrument (LIN 21/069). Before the Amending Instrument commenced, the authority was set out in the ‘making words’ at the beginning of the instrument as originally made on 11 October 2021. As a result, without new section 2A, the reference to section 22C of the Act would not appear in the compiled version of the instrument following amendment, due to the operation of paragraph 15V(5)(d) of the Legislation Act 2003.
Item 2 – Section 3
This item amends section 3 to insert the term Act, to mean the Australian Citizenship Act 2007. This is necessary due to the operation of paragraph 15V(5)(d) of the Legislation Act 2003, which would otherwise result in the defined term “Act” being removed from the Principal Instrument, as it appeared only in the ‘making words’ of the Instrument as made.
This item also amends section 3 to define LIN 26/024 to mean a reference to the Amending Instrument. This is necessary to support the operation of new section 8 of the Principal Instrument (as inserted by item 6), to provide for the application of the amendments of the Principal Instrument by the Amending Instrument (LIN 26/024).
Item 3 – After section 4
This item inserts a new heading Part 2—Specified activities, organisations and kinds of work. The effect of this amendment is to separate the machinery provisions in Part 1 of the Principal Instrument (such as authority and definitions) from the substantive provisions of the Instrument.
Item 4 – Section 5 (table item 4, column headed “Activity”)
This item replaces a reference to “Fed Cup” with a reference to the “Billie Jean King Cup”, reflecting the current name of this annual tennis event.
Item 5 – Paragraph 6(2)(d)
This item repeals and substitutes paragraph 6(2)(d) of the Principal Instrument. The amendment retains the effect of repealed paragraph 6(2)(d) in relation the research and development work of certain scientists, but also extends the scope of the paragraph to include the research and development work of certain academics. This paragraph operates for the purposes of paragraph 22B(1)(a) of the Citizenship Act.
As with the existing specific of work that is research and development engaged in by a scientist, the work is research and development of benefit to Australia by an academic who:
- holds a Doctor of Philosophy in their field of specialty; and
- is employed by an Australian university.
The effect of this item is that an applicant for Australian citizenship by conferral may rely on work undertaken as an academic (provided the work is of the kind specified in new paragraph 6(2)(d)) in seeking to satisfy special residence requirements under section 22B of the Act.
Item 6 – At the end of the instrument
This item inserts new section 7 to specify an additional kind of work for the purposes of paragraph 22B(1)(a) of the Citizenship Act. Specifically, section 7 operates to specify the “work of a minister of religion in a senior leadership position in a religious organisation” as work for the purposes of the special residence requirements in section 22B of the Act.
The expression “minister of religion in a senior leadership position in a religious organisation” in new subsection 7(1) is not defined in the Principal Instrument, acknowledging the various titles and positions that may be held by a person engaging in work of this kind. This term should be given its ordinary meaning, with reference to the activities set out in at paragraphs 7(2)(a)-(c) for the purposes of determining whether the person is engaging, or has engaged in, work of the specified kind. The activities in subsection 7(2) are intended to cover work that is undertaken by a person who holds a senior leadership position in a religious organisation specifically as a minister of religion.
New subsection 7(2) provides that the work of a minister of religion in a senior leadership position includes activities undertaken in the course of performing:
- senior religious leadership and pastoral duties;
- executive governance or administrative functions of the religious organisation; and
- ceremonial, representative or community engagement duties carried out in the person’s capacity as a minister of religion in a senior leadership position.
This is an inclusive, non-exhaustive list of the activities that constitute “work of a minister of religion in a senior leadership position in a religious organisation” in subsection 7(1). In considering whether a person has engaged in work of this kind, the Minister would have regard to documents and information that set out the nature and breadth of the person’s duties as a minister of religion, as well as their seniority and position in the organisation’s leadership structure. The expression ‘religious organisation’ is not defined in the Principal Instrument as amended, and would be intended to have its ordinary meaning, across denominations and faiths. To avoid doubt, it is not intended that the person be the most senior leader of a religious organisation, noting the various leadership structures across organisations and faiths, and where the person may be a member of a broader leadership structure in the organisation.
This item also adds new Part 3—Application and transitional provisions and new section 8. New section 8 provides that the amendments of the Principal Instrument apply in relation to applications for citizenship made on or after the day the Amending Instrument (LIN 26/024) commences.