Legislation (Deferral of Sunsetting—Australian Citizenship Regulation) Certificate 2026
EXPLANATORY STATEMENT
Issued by the Attorney-General in compliance with
section 15G of the Legislation Act 2003
INTRODUCTION
The Legislation (Deferral of Sunsetting—Australian Citizenship Regulation) Certificate 2026 (the Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003 (the Legislation Act). It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. The Certificate will be subjected to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the Certificate is after the first anniversary of the originally scheduled sunsetting day, which means that subsection 51(4) of that Act (which provides an exemption from disallowance for deferrals of 12 months or less) does not apply.
OUTLINE
Sunsetting is the automatic repeal of legislative instruments after a fixed period. The Australian Government’s sunsetting framework is established under Part 4 of Chapter 3 of the Legislation Act. The purpose of the sunsetting framework is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.
Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration. Under paragraph 51(1)(c) of the Legislation Act the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either 6, 12, 18 or 24 months.
The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day. This allows instruments to continue to be in force for a further but limited period of time after the date on which they would otherwise sunset. This removes the administrative burden of remaking instruments which would have a limited duration prior to their repeal and potential replacement, or where circumstances prevent the making of replacement instruments prior to the sunsetting day.
The Certificate defers the sunsetting date of the Australian Citizenship Regulation 2016 (the Citizenship Regulation) by 24 months from 1 April 2027 to 1 April 2029.
The ability to defer sunsetting dates is an integral part of the sunsetting framework. It provides the necessary flexibility to ensure the standard 10-year sunsetting period does not result in unintended consequences or impose an unreasonable administrative burden on Commonwealth agencies or the Parliament. In this case, the Citizenship Regulation is expected to be remade within 24 months of the sunsetting date as a result of a comprehensive review of the instrument and broader Australian citizenship policy settings. If the Certificate were to be disallowed, there would not be enough time to review and remake the Citizenship Regulation prior to the sunsetting day.
PROCESS BEFORE CERTIFICATE WAS MADE
Regulatory impact analysis
Certificates of deferral of sunsetting are machinery of government instruments, and are therefore not subject to the regulatory impact assessment requirements set out by the Office of Impact Analysis (OIA). The OIA reference for this standing exemption is ID19633.
Consultation before making
Before the Certificate was issued, the Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act.
The Citizenship Regulation is made under the Australian Citizenship Act 2007 (the Act). The Act provides for the process of becoming an Australian citizen, the circumstances in which citizenship may cease, and other related matters. The Department of Home Affairs intends to conduct a comprehensive review of the Australian citizenship framework, including the instrument. The Department of Home Affairs anticipates that this review will be completed and the instrument remade within 24 months after 1 April 2027.
Certificates of deferral are machinery in nature, and enable legislative instruments that would otherwise sunset to remain in force for a further, but strictly limited, period of time. This will minimise the administrative burden on stakeholders associated with consultation on the remaking of an instrument that will only have effect for a limited amount of time. Any replacement instrument will be subject to further consultation and parliamentary oversight, including oversight of whether adequate consultation occurred with persons likely to be affected by the replacement instruments.
A 24-month deferral will allow time for Department of Home Affairs to conduct the comprehensive review of the Citizenship Regulation, and will avoid the need to remake the instrument in its current form for the short period of time before it is repealed and a replacement instrument is made that draws on the outcome of that review. As such, given that deferral of the sunsetting date of the Citizenship Regulation is consistent with the policy intent of the sunsetting regime and does not significantly alter existing arrangements, appropriate consultation has occurred for the purposes of section 17 of the Legislation Act.
Statutory preconditions relevant to the Certificate
If the statutory conditions in section 51 of the Legislation Act are met, an instrument’s sunsetting day can be deferred for 6, 12, 18 or 24 months by means of a certificate made under that section. In terms of process, the Legislation Act requires:
- the responsible rule-maker to apply to the Attorney-General in writing, and
- the Attorney-General to be satisfied that:
- the instrument would (apart from the operation of the sunsetting provisions) be likely to cease to be in force within 24 months after its sunsetting day
- the proposed replacement instrument will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen and avoided
- the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed, or
- the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to that instrument, and
- the Attorney-General to issue a certificate. The explanatory statement for the certificate must include a statement of reasons for the issue of the certificate.
The rule-maker for the Citizenship Regulation, the Hon Tony Burke MP, Minister for Home Affairs and Minister for Immigration and Citizenship, provided a written application to the Attorney‑General seeking a certificate of deferral of sunsetting for the Citizenship Regulation. On the basis of the information contained in the statement of reasons below, the Attorney‑General is satisfied that the Citizenship Regulation would, apart from the operation of Part 4 of Chapter 3 of the Legislation Act, be likely to cease to be in force within 24 months after its sunsetting day. As such, the criterion in subparagraph 51(1)(b)(i) of the Legislation Act is met.
Statement of Reasons for issuing of the Certificate
For the purposes of subsection 51(5) of the Legislation Act this section sets out the statement of reasons for issuing the Certificate.
The Citizenship Regulation is made under the Act. The Act provides for the eligibility and process of becoming an Australian citizen, the circumstances in which citizenship may cease, and other related matters.
The Certificate defers the sunsetting date of the Citizenship Regulation by 24 months to 1 April 2029 to enable the Department of Home Affairs to consider recent amendments to Australian citizenship legislation and conduct a comprehensive review of the instrument. consider recent amendments to Australian citizenship legislation and conduct a comprehensive review of the instrument. The outcome of this work will inform the remake of the instrument.
In late 2025, two Acts which contain measures relating to Australian citizenship were passed by Parliament, the Home Affairs Legislation Amendment (2025 Measures No. 2) Act 2025 and the Regulatory Reform Omnibus Act 2025. While it was not intended that these Acts would require consequential amendments to the instrument, it is possible that the need for such amendments may come to light after commencement.
Moreover, the Australian Citizenship Amendment (Notices of Citizenship) Regulations 2025 (the Amendment Regulations) commenced on 17 December 2025. During drafting of the Amendment Regulations, parts of the Citizenship Regulation were identified as potentially benefitting from further clarification; these potential changes will be considered in the upcoming review of the instrument. The Department of Home Affairs anticipates that this review will be completed, and the Citizenship Regulation remade, within 24 months after 1 April 2027.
Accordingly, the Citizenship Regulation will likely cease to be in force in its current form within 24 months of its original sunsetting date.
More information
Further details on the provisions of the Certificate are provided in Attachment A.
The Citizenship Regulation which is subject to the Certificate, and which will now sunset at a later day as specified in the Certificate, is available on the Federal Register of Legislation.
Further information may be requested from the Attorney‑General’s Department about the operation of the Certificate, and from the Department of Home Affairs about the instrument to which the Certificate applies.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Legislation (Deferral of Sunsetting—Australian Citizenship Regulation) Certificate 2026 (the Certificate) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Human Rights Act).
Overview of the Certificate
The Certificate is made under paragraph 51(1)(c) of the Legislation Act 2003. Under that paragraph the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either 6, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the Certificate instead of the originally scheduled sunsetting day. The instrument specified in the Certificate is the Citizenship Regulation.
The Citizenship Regulation is expected to be repealed and replaced within 24 months of its scheduled sunsetting day due to review of the existing instrument and legislative framework, and anticipated reforms.
The Certificate allows the Citizenship Regulation to continue to be in force for a further, but limited, period of time than when it would otherwise sunset. This removes the administrative burden of remaking the instrument which would have a limited duration prior to its expected repeal and replacement.
Human Rights Implications
A certificate of deferral of sunsetting extends the operation of the instrument but does not change or affect the rights engaged under the original instrument.
The Citizenship Regulation engages certain rights and freedoms declared by the international instruments set out in section 3 of the Human Rights Act.
The Citizenship Regulation engages the right to privacy in Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR). Various provisions of the Citizenship Regulation require individuals to provide signed statements, allow the Minister to make a record of the fact that an individual is an Australian citizen, allow data to be stored by the Department of Home Affairs, and provide what personal information may be included in a notice of evidence of Australian citizenship. Various provisions of the Citizenship Regulation require individuals to provide signed statements, allow the Minister to make a record of the fact that an individual is an Australian citizen, allow data to be stored by the Department of Home Affairs, and specify the personal information to be included in a notice of evidence of Australian citizenship. To the extent that these provisions may limit a person’s right to privacy, any limitation is not arbitrary or unlawful, being authorised by relevant legislation. It is also reasonable, necessary and proportionate to the legitimate policy objectives of mitigating fraud in the citizenship acquisition process, accurately recording Australian citizenship, and maintaining the integrity of Australia’s identity framework. Furthermore, the Department of Home Affairs adheres to the Privacy Act 1988, which operates to regulate how personal information is handled and managed.
The Citizenship Regulation engages the right to equality and non-discrimination in Article 26 of the ICCPR. The Citizenship Regulation provides for concessional citizenship application fees for certain classes of applicants, such as applicants who hold a pensioner concession card or applicant children who are dependents on a pensioner concession card. To the extent that the Citizenship Regulation may limit a person’s right to equality and non-discrimination by enabling differential treatment based on other status, any limitation is reasonable, necessary and proportionate to the legitimate policy objective of reducing the financial barrier to acquiring citizenship that may be experienced by applicants and their dependent children who experience permanent or long-term financial disadvantage, where that disadvantage is evidenced by the holding of a pensioner concession card.
The Citizenship Regulation engages the right to acquire or change a nationality under Article 24(3) of the ICCPR, Article 5(d)(iii) of the Convention on the Elimination of all Forms of Racial Discrimination (CERD), Article 18 of the Convention on the Rights of Persons with Disabilities (CRPD), Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and Article 7 of the Convention on the Rights of the Child (CRC). The Citizenship Regulation engages the right to acquire or change a nationality as far as it provides for:
- the payment of fees for citizenship applications under sub-regulation 16;
- prescribed visas for those who satisfy the defence service requirement, under sub‑regulation 8; and
- prescribed reasons for failing to make a pledge of commitment under sub-regulation 9.
The Department of Home Affairs considers that as far as the Citizenship Regulation limits the right to acquire or change a nationality under sub-regulation 16, any limitation is reasonable, necessary and proportionate to the legitimate policy objective of varying fees in consideration of factors such as pensioner status or statelessness.
The Department of Home Affairs considers that sub-regulation 8 positively engages the right to acquire or change nationality. Sub-regulation 8 provides a pathway for family members of lateral transfer members of the Australian Defence Force to satisfy residence requirements in order to be eligible for Australian citizenship at the same time as the defence member. This is an alternate pathway to citizenship than that of the general or special residence requirement.
The Department of Home Affairs considers that sub-regulation 9 positively engages the right to acquire or change nationality by prescribing reasons for failing to make a pledge of commitment which give concession on compassionate and administrative grounds. This ensures that persons are not unfairly prevented from acquiring citizenship due to circumstances beyond their control.
Therefore, overall, the Citizenship Regulation is compatible with human rights because it promotes the protection of human rights. To the extent that they may limit human rights, those limitations are not arbitrary or unlawful, and are reasonable, necessary and proportionate.
Before issuing the Certificate, the Attorney-General was satisfied that the Citizenship Regulation would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months of their sunsetting date. Issuing a certificate of deferral therefore avoids the need to replace the instrument in its current form for a short period of time before it is expected to be repealed and replaced.
Instruments that are replaced will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the remade Citizenship Regulation will be assessed at the time it is made, including through the requirement to prepare a Statement of Compatibility with Human Rights.
Conclusion
This Certificate is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act as it promotes the protection of human rights. To the extent that the Certificate may limit human rights, those limitations are not arbitrary or unlawful, and are reasonable, necessary and proportionate. Any proposal to make a replacement instrument will be subject to parliamentary oversight and scrutiny.
ATTACHMENT A
NOTES ON THE CERTIFICATE
Section 1 Name
This section provides that the Certificate is named the Legislation (Deferral of Sunsetting— Australian Citizenship Regulation) Certificate 2026. The Certificate may be cited by this name.
Section 2 Commencement
This section provides for the Certificate to commence on the day after it is registered.
Section 3 Authority
This section provides that the Certificate is made under paragraph 51(1)(c) of the Legislation Act 2003.
Section 4 Deferral of sunsetting
This section provides that the Australian Citizenship Regulation 2016, for which the sunsetting day is 1 April 2027, is repealed by section 51 of the Legislation Act 2003 on 1 April 2029.
Section 5 Repeal of the instrument
This section provides that the Certificate is repealed at the start of 2 April 2029. This ensures that the declaration is not in force any longer than is necessary.