Citizenship

The Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) - shortly off to the Senate - is described as amending the Australian Citizenship Act 2007 (Cth) to

insert, clarify and strengthen key provisions of the Act relating to:

• extending good character requirements; 

• clarifying residency requirements and related matters; 

• circumstances in which a persons approval as an Australian citizen may or must be cancelled; circumstances in which the Minister may defer a person making the pledge of commitment to become an Australian citizen; 

• circumstances in which a persons Australian citizenship may be revoked; the power of the Minister to specify certain matters in a legislative instrument; 

• the use of personal information obtained under the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth) for the purposes of the Act and the Australian Citizenship Regulations 2007 (Cth); 

• the disclosure of personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act or the Migration Regulations; and minor technical amendments.

The Bill also amends the Migration Act to enable the use of personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act and the Migration Regulations, and to enable the disclosure of personal information obtained under the Migration Act or the Migration Regulations for the purposes of the Act and the Citizenship Regulations.

The proposed new regime will

• require all citizenship applicants to be of good character in order to be eligible for Australian citizenship, including applicants under 18 years of age; 

• extend the bar on approval as an Australian citizen related to criminal offences to all applicants for citizenship; 

• extend the offence provisions in the Act to capture more modern sentencing practices, including circumstances where a person is subject to an order of a court for home detention, an order of a court requiring the person to participate in a residential scheme or program, or circumstances in which the person has not been sentenced to a term of imprisonment but is nevertheless under an obligation to a court; 

• provide for the mandatory cancellation of approval of Australian citizenship where the applicant is required to make the pledge of commitment before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would be subject to prohibitions on approval related to identity, national security or criminal offences; 

• provide for the discretionary cancellation of approval of Australian citizenship where the applicant is required to make the pledge of commitment before becoming a citizen and the Minister is satisfied that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements in section 21 of the Act for being approved as an Australian citizen; 

• provide the Minister with the discretion to defer a person making the pledge of commitment to become an Australian citizen if the Minister is considering cancelling the persons approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because of identity, having been assessed as a risk to security or being subject to the bar on approval related to criminal offences; 

• provide the Minister with the discretion to defer a person making the pledge of commitment to become an Australian citizen if the Minister is considering cancelling the persons approval as an Australian citizen on the basis that the person would not now be approved as an Australian citizen because they would not meet the relevant requirements in section 21 of the Act for being approved as an Australian citizen; increase the maximum period of deferral for making the pledge of commitment to become an Australian citizen from 12 months to 2 years; 

• replace the current automatic provision in the Act which deems a citizen by descent never to have been a citizen, in spite of being approved by the Minister, if they did not have an Australian citizen parent at time of birth (section 19A), with a discretion for the Minister to revoke a persons Australian citizenship if the person has been approved as an Australian citizen by descent and the Minister is satisfied that the approval should not have been given (except in circumstances where the revocation decision would result in the person becoming stateless); 

• provide the Minister with the discretion to revoke a person's Australian citizenship where acquired by descent, conferral or under intercountry adoption arrangements if the Minister is satisfied that the person obtained Australian citizenship as a result of fraud or misrepresentation in certain circumstances regardless of whether the person was convicted of an offence in relation to the fraud or misrepresentation (and regardless of whether the fraud or misrepresentation was perpetrated by the Australian citizen themselves, or some other person); 

• provide that the Citizenship Regulations may confer on the Minister the power to make legislative instruments; clarify that the Minister, the Secretary or an APS employee in the Department may use personal information obtained under the Migration Act or the Migration Regulations for the purposes of the Act or the Citizenship Regulations; 

• clarify that the Minister, the Secretary or an APS employee in the Department of Immigration and Border Protection (the Department) may disclose personal information obtained under the Act or the Citizenship Regulations to the Minister, the Secretary or an officer (within the meaning of the Migration Act) for the purposes of the Migration Act or the Migration Regulations; and make certain consequential amendments.

The Bill  amends the Migration Act to -

allow the Minister, the Secretary or an officer to use personal information obtained under the Act or the Citizenship Regulations for the purposes of the Migration Act or the Migration Regulations; and

allow the Minister, the Secretary or an officer to disclose personal information obtained under the Migration Act or the Migration Regulations to the Minister, the Secretary or an APS employee in the Department for the purposes of the Act and the Citizenship Regulations, subject to a specified exception.

In relation to privacy the Explanatory Memorandum states -

The purpose of this amendment is to clarify that the Minister, the Secretary or an APS employee in the Department may use personal information obtained under the Migration Act or the regulations under that Act or personal information disclosed under subsection 488C(3) of the Migration Act (inserted by item 77 below) for the purposes of the Act or the regulations under the Act.

Such personal information would include, but would not be limited to: information provided by the person themselves or a third party to the Department concerning an application for a visa made by the person; information provided by the person themselves or a third party to the Department concerning the cancellation, or possible cancellation, of a visa held by the person under the Migration Act.

The uses for which the personal information will be put include, but would not be limited to, making a decision whether to approve or refuse to approve the person becoming an Australian citizen under the Act.

This provision will not affect the operation of section 503A of the Migration Act, concerning protection of information supplied to the Department by law enforcement agencies or intelligence agencies. That is, any information provided under section 503A would not be available for use for citizenship purposes unless express permission is received.

New subsection 53A(3) of the Act provides:

Disclosure

The Minister, the Secretary or an APS employee in the Department may disclose personal information obtained under this Act, or the regulations under this Act, to the Minister, the Secretary or an officer (within the meaning of the Migration Act 1958) for the purposes of that Act or the regulations under that Act.

The purpose of this amendment is to clarify that personal information obtained under the Act or the Citizenship Regulations may be disclosed to the Minister, the Secretary or an officer (within the meaning of the Migration Act) for the purposes of the Migration Act and the regulations of that Act.

Such personal information would include, but would not be limited to, personal information provided by the person themselves or a third party to the Department concerning an application to become an Australian citizen made by the person.

The exchange of personal information between officers within one Department is regarded as a use, rather than a disclosure, of that personal information for the purposes of the Privacy Act 1988 (Cth). As migration and citizenship matters are currently contained within the same portfolio (administered by the Department) the exchange of personal information between officers dealing with migration matters and officers who deal with citizenship matters constitutes a use, rather than a disclosure, of that personal information.

However, it is possible that migration and citizenship matters could be split between different portfolios in future. On this basis, a provision that permits the disclosure of  personal information obtained under the Act or the Citizenship Regulations to the Secretary or to an officer (within the meaning of the Migration Act) for the purposes of the Migration Act and the regulations of that Act is inserted.

This provision will not affect the operation of section 503A of the Migration Act, concerning protection of information supplied to the Department by law enforcement agencies or intelligence agencies. That is, any information provided under section 503A would not be available for disclosure for citizenship purposes unless express permission is received.

New subsection 53A(4) of the Act provides:

Definitions

In this section: personal information has the same meaning as in the Privacy Act 1988. Secretary means the Secretary of the Department.

"Personal information" is defined in section 6 of the Privacy Act to mean information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

The purpose of this amendment is to insert new definitions for the purposes of new section 53A of the Act.

The Privacy Act applies to the use and disclosure of personal information by Australian Privacy Principle (APP) entities. The Department is an APP entity for the purposes of the Privacy Act.

As an APP entity the Department must use and disclose personal information in accordance with the Australian Privacy Principles (APPs) prescribed in Schedule 1 to the Privacy Act. Australian Privacy Principle 6 prescribes when the Department may use or disclosure personal information. Australian Privacy Principle 6 generally provides that the Department can only use or disclose personal information for a purpose for which it was collected (the primary purpose) or for a secondary purpose if an exception applies. An exception prescribed in APP 6.2(b) of the Privacy Act provides that personal information may be used or disclosed if it is required or authorised by or under an Australian law.

For the avoidance of doubt, the use of personal information in accordance with new subsections 53A(1) and 53A(2) is a use that is authorised by an Australian law for the purposes of the Privacy Act. The disclosure of personal information in accordance with new subsection 53A(3) is a disclosure of personal information that is authorised by an Australian law for the purposes of the Privacy Act.