An Act to provide for transitional and consequential matters relating to the enactment of the Australian Citizenship Act 2007, and for other purposes
Note: An electronic version of this Act is available in ComLaw (http://www.comlaw.gov.au/)
1 Short title...........................................................................................1 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................2
Schedule 1—Consequential amendments 3 Part 1—Amendments 3 Administrative Appeals Tribunal Act 1975 3 Age Discrimination Act 2004 3 Air Navigation Act 1920 3 Australian Passports Act 2005 3 Australian Security Intelligence Organisation Act 1979 3 Circuit Layouts Act 1989 4 Civil Aviation (Carriers’ Liability) Act 1959 4 Commonwealth Electoral Act 1918 4 Commonwealth Serum Laboratories Act 1961 5 Consular Privileges and Immunities Act 1972 5 Copyright Act 1968 5 Crimes Act 1914 6 Criminal Code Act 1995 6 Diplomatic Privileges and Immunities Act 1967 6 Electronic Transactions Act 1999 6 Financial Transaction Reports Act 1988 7 Higher Education Funding Act 1988 7 Legislative Instruments Act 2003 9 Migration Act 1958 9 Qantas Sale Act 1992 9 Veterans’ Entitlements Act 1986 9 Part 2—Repeal 10 Australian Citizenship Act 1948 10 Schedule 2—Other amendments 11 Immigration (Education) Act 1971 11
Part 1—Provisions relating to the enactment of the Australian Citizenship Act 2007 12
Part 2—Provisions relating to the amendments made by Schedules 1 and 2 to this Act 21
An Act to provide for transitional and consequential matters relating to the enactment of the Australian Citizenship Act 2007, and for other purposes
[Assented to 15 March 2007]
This Act may be cited as the Australian Citizenship (Transitionals and Consequentials) Act 2007.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provision(s) | Commencement | Date/Details |
---|---|---|
1. Sections 1 to 3 and anything in this Act not | The day on which this Act receives the Royal Assent. | 15 March 2007 |
elsewhere covered | ||
by this table | ||
2. Schedules 1 to 3 | At the same time as sections 2A to 54 of the Australian Citizenship Act 2007 commence. | 1 July 2007 (see |
F2007L01653)
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1 Paragraph 21AA(5)(c)
Omit “Australian Citizenship Act 1948”, substitute “Australian Citizenship Act 2007”.
2 Paragraph 43(2)(a)
Repeal the paragraph, substitute:
(a) the Australian Citizenship Act 2007; or
3 Subsection 11A(4) (definition of Australian citizen)
Repeal the definition, substitute:
Australian citizen has the same meaning as in the Australian Citizenship Act 2007.
4 Paragraph 53(3)(b)
Repeal the paragraph, substitute:
(b) the name on a notice given to the person under section 37 of the Australian Citizenship Act 2007; or
5 Subsection 35(1) (paragraph (c) of the definition of prescribed administrative action)
Omit “Australian Citizenship Act 1948”, substitute “Australian Citizenship Act 2007”.
6 Section 5 (definition of Australian protected person)
Repeal the definition.
7 Section 5 (paragraph (a) of the definition of eligible person)
Omit “citizen, an Australian protected person”, substitute “citizen”.
8 Section 5 (definition of Australian citizen)
Repeal the definition, substitute:
Australian citizen has the same meaning as in the Australian
Citizenship Act 2007.
9 Paragraph 99A(1)(a)
Repeal the paragraph, substitute:
(a) makes an application to become an Australian citizen under section 21 of the Australian Citizenship Act 2007; and
10 Subparagraph 99A(4)(d)(i)
Omit “for a certificate of Australian citizenship”, substitute “to become an Australian citizen”.
11 Paragraph 99A(6)(b)
Repeal the paragraph, substitute:
(b) if the person becomes an Australian citizen as a result of the person’s application to become an Australian citizen—inform the Electoral Commissioner, as soon as practicable, that the person has become an Australian citizen.
12 Subsection 99A(7)
Omit “is granted a certificate of Australian citizenship”, substitute “becomes an Australian citizen”.
13 Subsection 99A(7)
Omit “is granted the certificate of citizenship”, substitute “becomes an Australian citizen”.
14 Subsection 99A(8)
Omit “a certificate of Australian citizenship”, substitute “approval to become an Australian citizen”.
15 Paragraph 170(1)(c)
Omit “, having been granted a certificate of Australian citizenship”.
16 Subparagraph 170(1)(c)(ii)
Repeal the subparagraph.
17 Subsection 19B(1) (definition of Australian citizen)
Repeal the definition, substitute:
Australian citizen has the same meaning as in the Australian Citizenship Act 2007.
18 Subsection 3(1) (definition of Australian citizen)
Repeal the definition.
19 Subsection 10(1) (definition of Australian protected person)
Repeal the definition.
20 Subsection 32(4) (definition of qualified person)
Omit “, an Australian protected person”.
21 Section 84 (paragraph (a) of the definition of qualified person)
Omit “, an Australian protected person”.
22 Subsection 248A(1) (definition of qualified person)
Omit “, an Australian protected person”.
23 Paragraph 85ZZH(d)
Omit “Australian Citizenship Act 1948”, substitute “Australian Citizenship Act 2007”.
24 Subsection 72.8(2) of the Criminal Code
Omit “Australian Citizenship Act 1948”, substitute “Australian Citizenship Act 2007”.
25 Paragraph 115.7(1)(a) of the Criminal Code
Repeal the paragraph, substitute:
(a) the Australian Citizenship Act 2007;
26 Subsection 4(1) (definition of Australian citizen)
Repeal the definition.
27 Clause 2 of Schedule 1
Repeal the clause, substitute:
28 Subsection 3(1) (definition of citizenship certificate)
After “declaration”, insert “, notice”.
29 Subsection 3(1) (before paragraph (a) of the definition of citizenship certificate)
Insert: (aa) the Australian Citizenship Act 2007; or
30 Subsection 3(1) (paragraphs (b) and (c) of the definition of citizenship certificate)
Repeal the paragraphs.
31 Subsection 3(1) (definition of citizenship certificate)
Omit “under any”, substitute “under either”.
32 Section 3 (definition of permanent resident)
Repeal the definition, substitute:
permanent resident has the same meaning as in the Australian
Citizenship Act 2007.
33 Section 3 (definition of permanent visa)
Repeal the definition, substitute:
permanent visa has the same meaning as in the Migration Act
1958.
34 Subsection 41(3)
Omit “a certificate of Australian citizenship under section 13 of the Australian Citizenship Act 1948 and who has yet to make the pledge referred to in section 15”, substitute “an approval to become an Australian citizen under section 24 of the Australian Citizenship Act 2007 and who has yet to make the pledge referred to in section 26”.
35 Paragraph 98B(1)(b)
Omit “a certificate of Australian citizenship under section 13 of the Australian Citizenship Act 1948 and who has yet to make the pledge referred to in section 15”, substitute “an approval to become an Australian citizen under section 24 of the Australian Citizenship Act 2007 and who has yet to make the pledge referred to in section 26”.
36 Paragraph 98V(b)
Omit “a certificate of Australian citizenship under section 13 of the Australian Citizenship Act 1948 and who has yet to make the pledge referred to in section 15”, substitute “an approval to become an Australian citizen under section 24 of the Australian Citizenship Act 2007 and who has yet to make the pledge referred to in section 26”.
37 Subparagraph 101(1)(d)(ii)
Omit “a certificate of Australian citizenship under section 13 of the Australian Citizenship Act 1948 and who has yet to make the pledge referred to in section 15”, substitute “an approval to become an Australian citizen under section 24 of the Australian Citizenship Act 2007 and who has yet to make the pledge referred to in section 26”.
38 Subsection 44(2) (table item 1)
Repeal the item, substitute:
Determinations under subsection 5(2) of the Australian Citizenship Act 2007
39 Paragraph 336D(2)(g)
Omit “Australian Citizenship Act 1948”, substitute “Australian Citizenship Act 2007”.
40 Subsection 7(7) (definition of Australian citizen)
Repeal the definition, substitute:
Australian citizen has the same meaning as in the Australian Citizenship Act 2007.
41 Subsection 5G(1AA) (note 2)
Omit “Australian Citizenship Act 1948”, substitute “Australian Citizenship Act 2007”.
Part 2—Repeal
42 The whole of the Act
Repeal the Act.
1 Paragraphs 4D(1)(c) and (d)
Repeal the paragraphs, substitute:
(c) if the person fails to commence an approved English course within the period of 12 months starting on the visa commencement date.
1 Definitions
In this Part:
commencement day means the day on which sections 2A to 54 of the Australian Citizenship Act 2007 commence.
new Act means the Australian Citizenship Act 2007.
old Act means the Australian Citizenship Act 1948 as in force at any time before the commencement day.
2 Rules applicable to Australian citizens under the old Act
(1) This item applies to a person who was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day.
Note: The person becomes an Australian citizen under the new Act: see subsection 4(1) of the new Act.
Same kind of citizenship
(2) If the person, immediately before the commencement day, was an Australian citizen under the provision set out in column 2 of the following table, the person is taken, on and from that day, to be an Australian citizen under the provision set out in column 3 of the table:
Same kind of citizenship | ||
---|---|---|
Column 1 Item | Column 2 Provision under which person was a citizen | Column 3 Provision under which person is taken to be a citizen |
1 | Section 10B, 10C or 11 of the old Act | Subdivision A of Division 2 of Part 2 of the new Act |
2 | Division 2 of Part III of the old Act | Subdivision B of Division 2 of Part 2 of the new Act |
Person may cease to be a citizen under new Act
(3) This item does not prevent the person from ceasing to be an Australian citizen under the new Act.
Note: For example, section 34 of the new Act allows the Minister to revoke a person’s citizenship.
3 Expanded meaning of some expressions in the new Act
Unlawful non-citizen
(1) For the purposes of subparagraph 16(2)(b)(i), subsection 19C(3) and paragraphs 22(1)(b) and (6)(a) of the new Act, a person is taken to also have been present in Australia as an unlawful non-citizen at a particular time if the person:
Permanent visa
(2) For the purposes of the new Act, the definition of permanent visa in section 3 of the new Act includes a valid permanent entry permit within the meaning of the Migration Act 1958 as in force immediately before 1 September 1994.
Visa
(3) For the purposes of the new Act, the definition of visa in section 3 of the new Act includes:
Defence service
(4) For the purposes of section 23 of the new Act:
4 Citizenship by birth under the new Act
Note: The effect of paragraph (b) of subitem (2) is that the period for which the person has been ordinarily resident in Australia before the commencement day will be counted under the new Act.
5 Citizenship by descent and conferral under the new Act
Subsections 17(5) and 24(7) of the new Act apply as if a reference to a person ceasing to be an Australian citizen included a reference to a person ceasing to be an Australian citizen under the old Act.
Note: The effect of this item is that if a person ceases to be an Australian citizen under the old Act, the person cannot become an Australian citizen under Subdivision A or B of Division 2 of Part 2 of the new Act for at least 12 months.
5A Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption
5B Citizenship by conferral—persons who are permanent residents at commencement
If:
then, for the purposes of that application, subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:
6 Revocation of citizenship by conferral under the new Act
(1) This item applies to a person who, under subitem 2(2) of this Part, is taken, on and from the commencement day, to be an Australian citizen under Subdivision B of Division 2 of Part 2 of the new Act.
False or misleading statement in application
(2) Subparagraph 34(2)(b)(i) of the new Act applies as if it also referred to the person’s conviction, at any time, of an offence against section 50 of the old Act in relation to the person’s application for the certificate of Australian citizenship made under the old Act.
Conviction of serious offence
(3) Subparagraph 34(2)(b)(ii) of the new Act applies as if it also referred to the person’s conviction, at any time after the person made the application for the certificate of Australian citizenship under the old Act, of an offence referred to in subparagraph 21(1)(a)(ii) of the old Act that the person committed at any time before the grant of the certificate.
Migration-related fraud
(4) Subparagraph 34(2)(b)(iii) of the new Act applies as if it also referred to the person obtaining the certificate of Australian citizenship under the old Act as a result of migration-related fraud within the meaning of subsections 21(1A) and (1B) of the old Act.
7 Applications under the old Act
Old descent applications
(1) If a person’s application (the old application) made under section 10B, 10C or 11 of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen made under section 16 of the new Act.
Note: The new application will be assessed under Subdivision A of Division 2 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.
Old certificate by grant and stateless applications
(2) If a person’s application (the old application) made under section 13 or 23D of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen made under section 21 of the new Act.
Note: The new application will be assessed under Subdivision B of Division 2 of Part 2 of the new Act. Subitems (7) and (8) are also relevant to this assessment.
Old renunciation applications
(3) If:
the old declaration is, on and from the commencement day, taken to be an application (a new application) to renounce the person’s Australian citizenship made under section 33 of the new Act.
Note: The new application will be assessed under Division 3 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.
Old resumption applications
(4) If:
the old declaration is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen again made under section 29 of the new Act.
Note: The new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.
(5) If:
the old application is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen again made under section 29 of the new Act.
Note: The new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.
(6) If:
the old declaration is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen again made under section 29 of the new Act.
Note: The new application will be assessed under Subdivision C of Division 2 of Part 2 of the new Act. Subitem (7) is also relevant to this assessment.
Assessing new applications under the new Act
(7) In assessing a new application under the new Act, a reference in the new Act to the time the person made the application is taken to be a reference to the time the old application or the old declaration, as the case requires, was made under the old Act.
Note: The new application will be assessed under the provisions of the new Act. The effect of this subitem is that some of those provisions will be applied at the time the old application or the old declaration, as the case requires, was made under the old Act.
(8) In applying section 22 of the new Act to a new application covered by subitem (2), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:
8 Person granted certificate of citizenship under the old Act but not an Australian citizen under the old Act
(1) If:
the certificate is, on and from the commencement day, taken to be an approval given to the person under section 24 of the new Act.
Cancellation of approval under the new Act
(2) For the purposes of applying section 25 of the new Act to such an approval:
Deferral of pledge of commitment under old Act
(3) If a decision is in force under subsection 14C(1) of the old Act immediately before the commencement day, the decision is, on and from the commencement day, taken to be a determination made under subsection 26(3) of the new Act.
9 Children of persons who lost or were deprived of citizenship under the old Act
10 Review of decisions made under the old Act
Despite the repeal of the old Act made by item 42 of Schedule 1, section 52A of the old Act continues to apply in relation to a decision made under that Act, as if that repeal had not been made.
11 Continuation of criminal proceedings under the old Act
Despite the repeal of the old Act made by item 42 of Schedule 1, the old Act continues to apply on and after the commencement day, in relation to criminal proceedings that began before that day under the old Act, as if that repeal had not been made.
This Part does not limit the operation of section 8 of the Acts
Interpretation Act 1901 in relation to the repeal of the old Act.
13 Transitional regulations
The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:
14 Definition
In this Part:
commencement day means the day on which sections 2A to 54 of the
Australian Citizenship Act 2007 commence.
If, on or after the commencement day, there are proceedings of the Administrative Appeals Tribunal to which paragraph 21AA(5)(c) of the Administrative Appeals Tribunal Act 1975 applies and which relate to the old Act, the amendment made by item 1 of Schedule 1 is, for the purposes of those proceedings, taken not to have been made.
The amendment made by item 2 of Schedule 1 applies in relation to things done by a person on or after the commencement day.
The amendment made by item 4 of Schedule 1 applies in relation to Australian travel documents issued on or after the commencement day.
The amendments made by items 15 and 16 of Schedule 1 apply in relation to nominations made on or after the commencement day.
The amendment made by item 27 of Schedule 1 applies in relation to documents required or permitted to be produced on or after the commencement day.
The amendment made by item 1 of Schedule 2 applies in relation to:
22 Transitional—Migration Act 1958
[Minister’s second reading speech made in— House of Representatives on 9 November 2005 Senate on 30 November 2006]
(181/05)