Australian Citizenship Act 2007

15A Simplified outline

The following is a simplified outline of this Subdivision:

You may be eligible to become an Australian citizen under this Subdivision in 2 situations:

• you were born outside Australia on or after 26 January 1949 and a parent of yours was an Australian citizen at the time of your birth: see subsection 16(2); or

• you were born outside Australia or New Guinea before 26 January 1949 and a parent of yours was an Australian citizen on 26 January 1949: see subsection 16(3).

You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.

You must be eligible to be an Australian citizen to be approved.

The Minister may be required to refuse your application on grounds relating to:

• non-satisfaction of identity: see subsection 17(3); or

• national security: see subsections 17(4) to (4B); or

• cessation of citizenship: see subsection 17(5).

You will be registered if the Minister approves you becoming an Australian citizen.

You do not become an Australian citizen, even if the Minister approves you becoming an Australian citizen, unless a parent of yours was an Australian citizen at a particular time: see section 19A.

16 Application and eligibility for citizenship

A person may make an application to the Minister to become an Australian citizen.

Note: Section 46 sets out application requirements (which may include the payment of a fee).

Persons born outside Australia on or after 26 January 1949

A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

a parent of the person was an Australian citizen at the time of the birth; and

if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

Persons born outside Australia or New Guinea before 26 January 1949

A person born outside Australia or New Guinea before 26 January 1949 is eligible to become an Australian citizen if:

a parent of the person became an Australian citizen on 26 January 1949; and

the parent was born in Australia or New Guinea or was naturalised in Australia before the person’s birth; and

if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

17 Minister’s decision

If a person makes an application under the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.section 16,

The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).

Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).

Identity

The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

Note: Division 5 contains the identity provisions.

National security

(4) If the person is not covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

If the person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.

A person is covered by this subsection if:

at the time the person made the application under section 16, the person:

is not a national of any country; and

is not a citizen of any country; and

at the time of the person’s birth, the person had a parent who was an Australian citizen.

Cessation of citizenship

If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

18 Registration

If the Minister approves the person becoming an Australian citizen, the Minister must register the person in the manner prescribed by the regulations.

19 Day citizenship begins

A person becomes an Australian citizen under this Subdivision on the day on which the Minister approves the person becoming an Australian citizen.

19A When a person does not become a citizen despite the Minister’s approval

Despite the Minister approves the person becoming an Australian citizen, unless:section 19, a person does not become an Australian citizen under this Subdivision, even if

if the person was born on or after 26 January 1949—a parent of the person was an Australian citizen at the time of the person’s birth; or

if the person was born before 26 January 1949—a parent of the person became an Australian citizen on 26 January 1949.

Subdivision AA—Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement

19B Simplified outline

The following is a simplified outline of this Subdivision:

You may be eligible to become an Australian citizen under this Subdivision if you are adopted outside Australia by at least one Australian citizen in accordance with:

the Hague Convention on Intercountry Adoption; or

a bilateral arrangement.

You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.

You must be eligible to be an Australian citizen to be approved. You may be refused citizenship even if you are eligible.

The Minister may be required to refuse your application on grounds relating to:

• non-satisfaction of identity: see subsection 19D(4); or

• national security: see subsections 19D(5) to (7A); or

• cessation of citizenship: see subsection 19D(8).

You will be registered if the Minister approves you becoming an Australian citizen.

19C Application and eligibility for citizenship

A person may make an application to the Minister to become an Australian citizen.

Note: Section 46 sets out application requirements (which may include the payment of a fee).

Eligibility

(2) A person (the applicant) is eligible to become an Australian citizen if:

the applicant is adopted in a Convention country or a prescribed overseas jurisdiction by:

(i) a person (the adopter) who is an Australian citizen at time of the adoption; or

(ii) 2 persons jointly, only one of whom (the adopter) is an Australian citizen at the time of the adoption; or

(iii) 2 persons jointly, both of whom (the adopters) are Australian citizens at the time of the adoption; and

an adoption compliance certificate issued in that country is in force for the adoption; and

under the Intercountry Adoption regulations or the Bilateral Arrangements regulations, as applicable, the adoption is recognised and effective for the laws of the Commonwealth and each State and Territory; and

the legal relationship between the applicant and the individuals who were, immediately before the adoption, the applicant’s parents has been terminated; and

if subparagraph (a)(i) or (ii) applies and the adopter is an Australian citizen under Subdivision A or this Subdivision at the time of the adoption—the adopter satisfies subsection (3); and

if subparagraph (a)(iii) applies and each adopter is an Australian citizen under Subdivision A or this Subdivision at the time of the adoption—either or both of the adopters satisfy subsection (3); and

if the applicant is aged 18 or over at the time the applicant made the application—the Minister is satisfied that the applicant is of good character at the time of the Minister’s decision on the application.

An adopter satisfies this subsection if the adopter has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the applicant made the application.

Definitions

In this section:

adoption compliance certificate:

for an adoption in accordance with the Hague Convention on Intercountry Adoption—has the same meaning as in the Intercountry Adoption regulations; and

for an adoption in accordance with a bilateral arrangement—has the same meaning as in the Bilateral Arrangements regulations.

Bilateral Arrangements regulations means prescribed regulations made under the Family Law Act 1975.

Convention country has the same meaning as in the Intercountry Adoption regulations.

Intercountry Adoption regulations means prescribed regulations made under the Family Law Act 1975.

prescribed overseas jurisdiction has the same meaning as in the Bilateral Arrangements regulations.

19D Minister’s decision

If a person makes an application under the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.section 19C,

The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 19C(2).

The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 19C(2).

Identity

The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

Note: Division 5 contains the identity provisions.

National security

(5) If the person is not covered by subsection (7), the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

If the person is covered by subsection (7), the Minister must not approve the person becoming an Australian citizen if the person:

if subparagraph (7)(b)(i) applies to the person:

has been convicted of a national security offence; or

subject to subsection (7A), has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to a period of imprisonment of at least 5 years; or

if subparagraph (7)(b)(ii) applies to the person—has been convicted of a national security offence.

A person is covered by this subsection if:

at the time the person made the application under section 19C, the person:

is not a national of any country; and

is not a citizen of any country; and

either:

the person was born in Australia; or

the person was born outside Australia and, at the time of the person’s birth, the person had a parent who was an Australian citizen.

The Minister may decide that subparagraph (6)(a)(ii) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s conviction, the Minister is satisfied that it would be unreasonable for that subparagraph to apply in relation to the person.

Cessation of citizenship

If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

19E Registration

If the Minister approves the person becoming an Australian citizen, the Minister must register the person in the manner prescribed by the regulations.

19F Day citizenship begins

A person becomes an Australian citizen under this Subdivision on the day on which the Minister approves the person becoming an Australian citizen.

19G Simplified outline

The following is a simplified outline of this Subdivision:

You may be eligible to become an Australian citizen under this Subdivision in 7 situations:

• you satisfy the general eligibility criteria and have successfully completed a citizenship test: see subsections 21(2) and (2A); or

• you have a permanent or enduring physical or mental incapacity: see subsection 21(3); or

• you are aged 60 or over or have a hearing, speech or sight impairment: see subsection 21(4); or

• you are aged under 18: see subsection 21(5); or

• you were born to a former Australian citizen: see subsection 21(6); or

• you were born in Papua: see subsection 21(7); or

• you are a stateless person: see subsection 21(8).

You must make an application to become an Australian citizen. The Minister must approve or refuse you becoming an Australian citizen.

You must be eligible to be an Australian citizen to be approved. You may be refused citizenship even if you are eligible.

The Minister may be required to refuse your application on grounds relating to:

• non-satisfaction of identity: see subsection 24(3); or

• national security: see subsections 24(4) to (4C); or

• non-presence in Australia: see subsection 24(5); or

• offences: see subsection 24(6); or

• cessation of citizenship: see subsection 24(7).

You may need to make a pledge of commitment to become an Australian citizen.

20 Requirements for becoming a citizen

A person becomes an Australian citizen under this Subdivision if:

the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and

if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.

Note: Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen. Sections 26 and 27 deal with the making of a pledge of commitment.

21 Application and eligibility for citizenship

A person may make an application to the Minister to become an Australian citizen.

Note 1: Subsections (2) to (8) deal with eligibility.

Note 2: Section 46 sets out application requirements (which may include the payment of a fee).

General eligibility

A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

is aged 18 or over at the time the person made the application; and

is a permanent resident:

at the time the person made the application; and

at the time of the Minister’s decision on the application; and

satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

understands the nature of an application under subsection (1); and

possesses a basic knowledge of the English language; and

has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

is of good character at the time of the Minister’s decision on the application.

Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:

the person has sat a test approved in a determination under section 23A;

the person was eligible to sit that test (worked out in accordance with that determination);

(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;

the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.

Permanent or enduring physical or mental incapacity

A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

is aged 18 or over at the time the person made the application; and

is a permanent resident:

at the time the person made the application; and

at the time of the Minister’s decision on the application; and

satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

is not capable of understanding the nature of the application at that time; or

is not capable of demonstrating a basic knowledge of the English language at that time; or

is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and

is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

is of good character at the time of the Minister’s decision on the application.

Person aged 60 or over or has hearing, speech or sight impairment

A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

is:

aged 60 or over at the time the person made the application; or

aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; and

is a permanent resident:

at the time the person made the application; and

at the time of the Minister’s decision on the application; and

understands the nature of the application at the time the person made the application; and

satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

is of good character at the time of the Minister’s decision on the application.

Person aged under 18

A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

is aged under 18 at the time the person made the application; and

is a permanent resident:

at the time the person made the application; and

at the time of the Minister’s decision on the application.

Person born to former Australian citizen

A person is eligible to become an Australian citizen if the Minister is satisfied that:

the person was born outside Australia; and

a parent of the person was not an Australian citizen at the time of the person’s birth; and

the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and

if the person is aged 18 or over at the time the person made the application—the person is of good character at the time of the Minister’s decision on the application.

Person born in Papua

A person is eligible to become an Australian citizen if the Minister is satisfied that:

the person was born in Papua before 16 September 1975; and

a parent of the person was born in Australia (within the meaning of this Act at the time the person made the application); and

the parent was an Australian citizen at the time of the person’s birth; and

the person is of good character at the time of the Minister’s decision on the application.

Statelessness

A person is eligible to become an Australian citizen if the Minister is satisfied that:

the person was born in Australia; and

the person:

is not a national of any country; and

is not a citizen of any country; and

the person has:

never been a national of any country; and

never been a citizen of any country; and

the person:

is not entitled to acquire the nationality of a foreign country; and

is not entitled to acquire the citizenship of a foreign country.

22 General residence requirement

(1) Subject to this section, for the purposes of general residence requirement if:section 21 a person satisfies the

the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

Overseas absences

If:

the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

the total period of the absence or absences was not more than 12 months;

then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

If:

the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

the total period of the absence or absences was not more than 90 days; and

the person was a permanent resident during each period of absence;

then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

Confinement in prison or psychiatric institution

Subject to subsection (5A), the person is taken not to satisfy paragraph (1)(a) if, at any time during the 4 year period mentioned in that paragraph, the person was:

confined in a prison; or

confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

Partial exemption—person born in Australia or former Australian citizen

Paragraphs (1)(a) and (b) do not apply if the person:

was born in Australia; or

was an Australian citizen at any time before the person made the application.

Ministerial discretion—administrative error

For the purposes of paragraph (1)(b), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.

Ministerial discretion—confinement in prison or psychiatric institution

The Minister may decide that subsection (1C) does not apply in relation to the person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.

Ministerial discretion—person in Australia would suffer significant hardship or disadvantage

For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and

the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

Ministerial discretion—spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

the person was a spouse or de facto partner of that Australian citizen during that period; and

the person was not present in Australia during that period; and

the person was a permanent resident during that period; and

the Minister is satisfied that the person had a close and continuing association with Australia during that period.

In subsection (9):

surviving spouse or de facto partner of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.

Ministerial discretion—person in an interdependent relationship

If, at the time the person made the application, the person:

holds a permanent visa granted to the person because the person was in an interdependent relationship with an Australian citizen; and

is in that interdependent relationship;

then, for the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

the person held that visa during that period and the person was in that interdependent relationship during that period; and

the person was not present in Australia during that period; and

the person was a permanent resident during that period; and

the Minister is satisfied that the person had a close and continuing association with Australia during that period.

22A Special residence requirement—persons engaging in activities that are of benefit to Australia

(1) Subject to this section, for the purposes of applicant) satisfies the special residence requirement if:section 21 a person (the

the following apply:

the applicant is seeking to engage in an activity specified under subsection 22C(1);

the applicant’s engagement in that activity would be of benefit to Australia;

the applicant needs to be an Australian citizen in order to engage in that activity;

in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and

(b) the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity; and

the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and

the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and

the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and

the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and

the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.

Ministerial discretion—alternative residence requirements

The Minister may, by writing, determine that paragraphs (1)(c) to (g) do not apply in relation to the applicant if:

the Minister is satisfied that paragraphs (1)(a) and (b) apply in relation to the applicant; and

the Minister is satisfied that the applicant satisfies:

paragraphs 21(2)(a), (b), (d), (e), (f), (g) and (h); or

paragraphs 21(3)(a), (b), (d), (e) and (f); or

paragraphs 21(4)(a), (b), (c), (e) and (f); and

the applicant was a permanent resident throughout the period of 90 days immediately before the day the applicant made the application; and

the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 180 days immediately before the day the applicant made the application; and

the applicant has given the Minister an undertaking in a form approved by the Minister under subsection (8); and

the applicant has declared, in the undertaking, that:

if the applicant becomes an Australian citizen in circumstances where the Minister exercises the power under this subsection, the applicant will be ordinarily resident in Australia throughout the period of 2 years beginning on the day the applicant becomes an Australian citizen; and

the applicant understands the effect of section 34A.

Note: See also subsections (6) to (11).

(1B) If the Minister exercises the power under subsection (1A) in relation to the applicant, then, for the purposes of special residence requirement.section 21, the applicant is taken to satisfy the

Confinement in prison or psychiatric institution

Subject to subsection (3), the applicant is taken not to satisfy paragraph (1)(c) if, at any time during the 2 year period mentioned in that paragraph, the applicant was:

confined in a prison; or

confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the applicant.

The Minister may decide that subsection (2) does not apply in relation to the applicant if, taking into account the circumstances that resulted in the applicant’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the applicant.

Ministerial discretion—administrative error

For the purposes of paragraph (1)(f) or (1A)(c), the Minister may treat a period as one in which the applicant was a permanent resident if the Minister considers that, because of an administrative error, the applicant was not a permanent resident during that period.

For the purposes of paragraph (1)(g) or (1A)(d), the Minister may treat a period as one in which the applicant was not present in Australia as an unlawful non-citizen if the Minister considers the applicant was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

Rules relating to power under subsection (1A)

The power under subsection (1A) may only be exercised by the Minister personally.

The Minister does not have a duty to consider whether to exercise the power under subsection (1A), whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

The Minister may, by writing, approve a form for the purposes of paragraph (1A)(e).

If the applicant becomes an Australian citizen in circumstances where the Minister exercised the power under subsection (1A), the Minister must cause to be tabled in each House of the Parliament, within 15 sitting days of that House after the day the applicant becomes an Australian citizen, a statement that:

states that the Minister has exercised the power under subsection (1A); and

states the activity covered by paragraph (1)(a); and

sets out the reasons for the Minister’s exercise of that power, including why the Minister considers that engagement in that activity would be of benefit to Australia.

However, a statement under subsection (9) is not to include the name of the applicant.

A determination under subsection (1A) is not a legislative instrument.

22B Special residence requirement—persons engaged in particular kinds of work requiring regular travel outside Australia

(1) Subject to this section, for the purposes of special residence requirement if:section 21 a person satisfies the

at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and

the following apply:

the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;

for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and

the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and

the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and

the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and

the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and

the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application.

Ministerial discretion—alternative residence requirements

The Minister may, by writing, determine that paragraphs (1)(c) to (g) do not apply in relation to the person if:

the Minister is satisfied that paragraphs (1)(a) and (b) apply in relation to the person; and

the Minister is satisfied that the person’s engagement in the kind of work concerned is of benefit to Australia; and

the Minister is satisfied that the person satisfies:

paragraphs 21(2)(a), (b), (d), (e), (f), (g) and (h); or

paragraphs 21(3)(a), (b), (d), (e) and (f); or

paragraphs 21(4)(a), (b), (c), (e) and (f); and

the person was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the person made the application; and

the person was a permanent resident throughout the period of 90 days immediately before the day the person made the application; and

the person was not present in Australia as an unlawful non-citizen at any time during the period of 180 days immediately before the day the person made the application; and

the person has given the Minister an undertaking, in a form approved by the Minister under subsection (8), that, if the person becomes an Australian citizen in circumstances where the Minister exercises the power under this subsection:

the person will be ordinarily resident in Australia throughout the period of 2 years beginning on the day the person becomes an Australian citizen; and

the person will be present in Australia for a total of at least 180 days during that 2-year period; and

the person has declared, in the undertaking, that the person understands the effect of section 34A.

Note: See also subsections (6) to (11).

(1B) If the Minister exercises the power under subsection (1A) in relation to the person, then, for the purposes of special residence requirement.section 21, the person is taken to satisfy the

Confinement in prison or psychiatric institution

Subject to subsection (3), the person is taken not to satisfy:

paragraph (1)(c) if, at any time during the 4-year period mentioned in that paragraph; or

paragraph (1A)(d) if, at any time during the 2-year period mentioned in that paragraph;

the person was:

confined in a prison; or

confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

The Minister may decide that subsection (2) does not apply in relation to the person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.

Ministerial discretion—administrative error

For the purposes of paragraph (1)(f) or (1A)(e), the Minister may treat a period as one in which the person was a permanent resident if the Minister considers that, because of an administrative error, the person was not a permanent resident during that period.

For the purposes of paragraph (1)(g) or (1A)(f), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

Rules relating to power under subsection (1A)

The power under subsection (1A) may only be exercised by the Minister personally.

The Minister does not have a duty to consider whether to exercise the power under subsection (1A), whether he or she is requested to do so by the person or by any other person, or in any other circumstances.

The Minister may, by writing, approve a form for the purposes of paragraph (1A)(g).

If the person becomes an Australian citizen in circumstances where the Minister exercised the power under subsection (1A), the Minister must cause to be tabled in each House of the Parliament, within 15 sitting days of that House after the day the person becomes an Australian citizen, a statement that:

states that the Minister has exercised the power under subsection (1A); and

states the kind of work covered by paragraph (1)(a); and

sets out the reasons for the Minister’s exercise of that power, including why the Minister considers that engagement in that kind of work is of benefit to Australia.

However, a statement under subsection (9) is not to include the name of the person.

A determination under subsection (1A) is not a legislative instrument.

22C Special residence requirement—legislative instruments

The Minister may, by legislative instrument, specify activities for the purposes of subparagraph 22A(1)(a)(i).

The Minister may, by legislative instrument, specify organisations for the purposes of paragraph 22A(1)(b).

The Minister may, by legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a).

23 Defence service requirement

Person who has completed relevant defence service

(1) For the purposes of defence service requirement if the person has completed relevant defence service.section 21, a person satisfies the

Member of family unit of person who has completed relevant defence service etc.

If:

(a) a person (the defence person) was granted, on or after 1 July 2007, a visa prescribed by the regulations; and

the defence person has completed relevant defence service; and

(c) another person (the relative) was a member of the family unit of the defence person when the defence person was granted the visa; and

the relative holds a visa of that kind because the relative is a member of the family unit of the defence person;

the relative satisfies the defence service requirement for the purposes of section 21.

If:

(a) a person (the defence person) was granted, on or after 1 July 2007, a visa prescribed by the regulations; and

the defence person dies while undertaking service in the Permanent Forces or the Reserves; and

(c) another person (the relative) was a member of the family unit of the defence person when the defence person was granted the visa; and

immediately before the death of the defence person, the relative held a visa of that kind because the relative was a member of the family unit of the defence person;

the relative satisfies the defence service requirement for the purposes of section 21.

Definitions

In this section:

member of the family unit of a person has the same meaning as in the Migration Act 1958.

Permanent Forces means the Permanent Navy, the Regular Army or the Permanent Air Force.

relevant defence service: a person has completed relevant defence service if:

the person has undertaken a total of at least 90 days service in one or more of the Permanent Forces (whether or not that service was continuous); or

(b) the person has undertaken a total of at least 90 days service on which he or she was required for, and attended and was entitled to be paid for, duty in one or more of the Reserves (whether or not that service was continuous); or

the person:

was discharged from service undertaken in one of the Permanent Forces or the Reserves as medically unfit for that service; and

became so unfit because of service undertaken in any of the Permanent Forces or the Reserves.

Reserves means the Naval Reserve, the Army Reserve or the Air Force Reserve.

service: a person undertakes service in the Permanent Forces or the Reserves only if the person is appointed, enlisted or transferred into any of the Permanent Forces or the Reserves.

Note: For appointment, enlistment or transfer into any of the Permanent Forces or the Reserves, see the Defence Act 1903.

23A Citizenship test

The Minister must, by written determination, approve a test for the purposes of subsection 21(2A) (about general eligibility for citizenship).

Note: The test must be related to the eligibility criteria referred to in paragraphs 21(2)(d), (e) and (f).

Successful completion of the test

A determination under subsection (1) must specify what amounts to successful completion of the test.

Eligibility criteria for sitting the test

A determination under subsection (1) may set out the eligibility criteria a person must satisfy to be able to sit the test.

Note: The eligibility criteria for sitting the test cannot be inconsistent with this Act and in particular subsection 21(2) (about the general eligibility criteria for becoming an Australian citizen).

For the purposes of subsection (3), the determination may provide that a person is not eligible to sit the test unless the person is a permanent resident and the Minister is satisfied of the identity of the person.

Subsection (4) does not limit subsection (3).

Period for sitting and completing the test

A determination under subsection (1) may provide for the period within which a person must start the test and for the period within which a person must complete the test.

Other matters

(6) A determination under subsection (1) may cover any other matter related to the test the Minister thinks appropriate.

Determination not a legislative instrument

A determination made under subsection (1) is not a legislative instrument.

24 Minister’s decision

If a person makes an application under the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.section 21,

Note: The Minister may cancel an approval: see section 25.

The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).

If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.

Identity

The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

Note: Division 5 contains the identity provisions.

National security

(4) If the person is not covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

If the person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person:

if subparagraph (4B)(b)(i) applies to the person:

has been convicted of a national security offence; or

subject to subsection (4C), has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to a period of imprisonment of at least 5 years; or

if subparagraph (4B)(b)(ii) applies to the person—has been convicted of a national security offence.

A person is covered by this subsection if:

at the time the person made the application under section 21, the person:

is not a national of any country; and

is not a citizen of any country; and

either:

the person was born in Australia; or

the person was born outside Australia and, at the time of the person’s birth, the person had a parent who was an Australian citizen.

The Minister may decide that subparagraph (4A)(a)(ii) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s conviction, the Minister is satisfied that it would be unreasonable for that subparagraph to apply in relation to the person.

To avoid doubt, subsection (4A) applies to a person who is eligible to become an Australian citizen under subsection 21(8).

Person not present in Australia

If:

the person is covered by subsection 21(2), (3) or (4); and

the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and

the Minister did not apply subsection 22(9) in relation to the person; and

the Minister did not apply subsection 22(11) in relation to the person;

the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.

Offences

The Minister must not approve the person becoming an Australian citizen at a time:

when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or

when the person is confined to a prison in Australia; or

during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence; or

if the person is a serious repeat offender in relation to a serious prison sentence—during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or

if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence—during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or

if the person:

has been released by a court from serving the whole or a part of a sentence of imprisonment; and

has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

if, in respect of proceedings for an offence against an Australian law in relation to the person:

a court does not impose a sentence of imprisonment on the person; and

the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or

during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.

Cessation of citizenship

If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

Statelessness

However, subsections (6) and (7) do not apply to a person covered by subsection 21(8) (about statelessness).

25 Minister may cancel approval

The Minister may, by writing, cancel an approval given to a person under section 24 if:

the person has not become an Australian citizen under section 28; and

either of the following 2 situations apply.

Eligibility criteria not met

The first situation applies if:

the person is covered by subsection 21(2), (3) or (4); and

the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

not a permanent resident; or

not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

not of good character.

Failure to make pledge of commitment

The second situation applies if:

the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

Cancellation of child’s approval

If:

a child aged under 16 makes an application under section 21 at a particular time; and

1 or more responsible parents of the child make applications under section 21 at that time; and

the Minister decides under section 24 to approve the child and 1 or more of the responsible parents becoming Australian citizens; and

the Minister cancels the approval given to each responsible parent;

the Minister must, by writing, cancel the approval given to the child.

Effect of cancellation

If the Minister cancels an approval given to a person, the approval is taken never to have been given.

Note: A person cannot become an Australian citizen under this Subdivision unless the Minister approves the person becoming an Australian citizen. This subsection has the effect that the person will need to make another application if the person wants to become an Australian citizen.

26 Pledge of commitment must be made

A person must make a pledge of commitment to become an Australian citizen unless the person:

is aged under 16 at the time the person made the application to become an Australian citizen; or

has a permanent or enduring physical or mental incapacity, at the time the person made the application to become an Australian citizen, that means the person:

is not capable of understanding the nature of the application at that time; or

is not capable of demonstrating a basic knowledge of the English language at that time; or

is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; or

is covered by subsection 21(6), (7) or (8).

Note: See section 27 for how the pledge is to be made.

A person must not make a pledge of commitment before the Minister approves the person’s application to become an Australian citizen. A pledge of commitment made by the person before that time is of no effect.

Delayed making of pledge

If the person is required to make a pledge of commitment and has not done so, the Minister may determine, in writing, that the person cannot make the pledge until the end of a specified period if the Minister is satisfied that:

(a) a visa held by the person may be cancelled under the Migration Act 1958 (whether or not the person has been given any notice to that effect); or

the person has been or may be charged with an offence under an Australian law.

The Minister must not specify a period that exceeds, or periods that in total exceed, 12 months.

The Minister may, by writing, revoke a determination.

If a determination is in force in relation to a person, the person must not make a pledge of commitment before the end of the period specified in the determination. A pledge of commitment made by the person before that time is of no effect.

27 How pledge of commitment is to be made

Form of pledge

A pledge of commitment must be made in accordance with either of the forms set out in Schedule 1.

Prescribed arrangements

A pledge of commitment must be made in accordance with the arrangements prescribed by the regulations.

Note: The regulations may provide for a pledge of commitment to be made in public.

Persons who may receive pledge

A pledge of commitment must be made before:

the Minister; or

a person authorised under subsection (4); or

a person who is included in a class of persons authorised under subsection (5).

The Minister may, by writing, authorise a person for the purposes of paragraph (3)(b).

The Minister may, by legislative instrument, authorise a class of persons for the purposes of paragraph (3)(c).

28 Day citizenship begins etc.

Persons required to make pledge of commitment

A person required to make a pledge of commitment becomes an Australian citizen under this Subdivision on the day on which the person makes the pledge.

Persons not required to make pledge of commitment

Subject to subsection (3), a person not required to make a pledge of commitment becomes an Australian citizen under this Subdivision on the day on which the Minister approves the person becoming an Australian citizen.

Applications made at the same time by child and responsible parents

Subsection (2) does not apply to a child aged under 16 at the time the child made the application to become an Australian citizen if:

1 or more responsible parents of the child made applications under section 21 at that time; and

the Minister decided under section 24 to approve the child and 1 or more of the responsible parents becoming Australian citizens.

If 1 or more of the responsible parents become Australian citizens under this section, the child becomes an Australian citizen on the first day on which a responsible parent becomes an Australian citizen.

28A Simplified outline

The following is a simplified outline of this Subdivision:

You may be eligible to become an Australian citizen under this Subdivision if you ceased to be an Australian citizen under this Act or the old Act.

You must make an application to become an Australian citizen again. The Minister must approve or refuse you becoming an Australian citizen again.

You must be eligible to be an Australian citizen again to be approved. You may be refused citizenship again even if you are eligible.

The Minister may be required to refuse your application on grounds relating to:

• non-satisfaction of identity: see subsection 30(3); or

• national security: see subsections 30(4) to (7).

You will be registered if the Minister approves you becoming an Australian citizen again.

29 Application and eligibility for resuming citizenship

A person may make an application to the Minister to become an Australian citizen again.

Note 1: Section 46 sets out application requirements (which may include the payment of a fee).

Note 2: The person may also apply to become an Australian citizen again under Subdivision A, AA or B.

Cessation under this Act

A person is eligible to become an Australian citizen again under this Subdivision if:

the person ceased to be an Australian citizen under:

section 33 (about renunciation) in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

section 36 (about children); and

if the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

Note 1: See also section 32 (which is about persons resuming their former citizenship status).

Note 2: A person who ceases to be an Australian citizen under section 34 or 34A may apply to become an Australian citizen again under Subdivision A, AA or B.

Cessation under old Act

A person is eligible to become an Australian citizen again under this Subdivision if:

the person ceased to be an Australian citizen under:

section 17 (about dual citizenship) of the old Act; or

section 18 (about renunciation) of the old Act in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

section 20 (about residence outside Australia) of the old Act; or

section 23 (about children) of the old Act; and

if the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

30 Minister’s decision

If a person makes an application under the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen again.section 29,

The Minister must not approve the person becoming an Australian citizen again unless the person is eligible to become an Australian citizen again under subsection 29(2) or (3).

The Minister may refuse to approve the person becoming an Australian citizen again despite the person being eligible to become an Australian citizen again under subsection 29(2) or (3).

Identity

The Minister must not approve the person becoming an Australian citizen again unless the Minister is satisfied of the identity of the person.

Note: Division 5 contains the identity provisions.

National security

(4) If the person is not covered by subsection (6), the Minister must not approve the person becoming an Australian citizen again at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

If the person is covered by subsection (6), the Minister must not approve the person becoming an Australian citizen again if the person:

if subparagraph (6)(b)(i) applies to the person:

has been convicted of a national security offence; or

subject to subsection (7), has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to a period of imprisonment of at least 5 years; or

if subparagraph (6)(b)(ii) applies to the person—has been convicted of a national security offence.

A person is covered by this subsection if:

at the time the person made the application under section 29, the person:

is not a national of any country; and

is not a citizen of any country; and

either:

the person was born in Australia; or

the person was born outside Australia and, at the time of the person’s birth, the person had a parent who was an Australian citizen.

The Minister may decide that subparagraph (5)(a)(ii) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s conviction, the Minister is satisfied that it would be unreasonable for that subparagraph to apply in relation to the person.

31 Registration

If the Minister approves the person becoming an Australian citizen again, the Minister must register the person in the manner prescribed by the regulations.

32 Day citizenship begins again etc.

A person becomes an Australian citizen again on the day on which the Minister approves the person becoming an Australian citizen again.

Same kind of citizenship—former citizen under this Act

If the person, before ceasing to be an Australian citizen, was an Australian citizen under Subdivision A, AA or B, the person becomes an Australian citizen again under that Subdivision.

Note: One of the effects of this subsection is that the Minister is able to revoke the person’s citizenship: see section 34.

Same kind of citizenship—former citizen under old Act

If the person, before ceasing to be an Australian citizen, was an Australian citizen under the provision set out in column 2 of the following table, the person becomes an Australian citizen again under the provision set out in column 3 of the table.

Note: One of the effects of this subsection is that the Minister is able to revoke the person’s citizenship: see section 34.

40 Request for personal identifiers

For the purposes of the Minister being satisfied of the identity of:

a person in relation to an application under this Part; or

a person who has sought to sit a test approved in a determination under section 23A;

the following persons may request the person, in writing, to provide one or more specified personal identifiers:

the Minister;

a person authorised under subsection (3);

a person who is included in a class of persons authorised under subsection (4).

Form of request

A request must inform the person of the matters prescribed by the regulations.

Authorisations

The Minister may, by writing, authorise a person for the purposes of paragraph (1)(d).

The Minister may, by legislative instrument, authorise a class of persons for the purposes of paragraph (1)(e).

41 Provision of personal identifiers

The regulations may prescribe the procedures and requirements that apply to the provision of a personal identifier by a person under this Division.

42 Accessing identifying information

A person commits an offence if:

the person accesses identifying information; and

the person is not authorised under this section to access the identifying information for the purpose for which the person accessed it.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

This section does not apply if the person believes on reasonable grounds that the access is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

This section does not apply if the access is through:

a disclosure that is a permitted disclosure within the meaning of section 43; or

a disclosure to which section 43 does not apply because of the operation of subsection 43(1A).

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Authorisation

The Minister may, in writing, authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation.

The Minister must specify in an authorisation under subsection (3), as the purpose or purposes for which access is authorised, one or more of the following purposes:

either or both of the purposes set out in paragraph 10(2)(c);

disclosing identifying information in accordance with this Division;

administering or managing the storage of identifying information;

making identifying information available to the person to whom it relates;

modifying identifying information to enable it to be matched with other identifying information;

modifying identifying information in order to correct errors or ensure compliance with appropriate standards;

(g) the purposes of this Act or the regulations or of the Migration Act 1958 or the regulations made under that Act;

complying with Australian laws.

43 Disclosing identifying information

A person commits an offence if:

the person’s conduct causes disclosure of identifying information; and

the disclosure is not a permitted disclosure.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

If:

a disclosure of identifying information is made to a person who is not an entrusted person; and

the disclosure is a permitted disclosure;

this section does not apply in relation to any further disclosure of that identifying information by a person who is not an entrusted person.

Note 1: A defendant, except for an IGIS official, bears an evidential burden in relation to a matter in this subsection (see subsection 13.3(3) of the Criminal Code). For IGIS officials, see section 34C of the Inspector-General of Intelligence and Security Act 1986.

Note 2: Australian Privacy Principle 6 may apply to further disclosures of that identifying information by a person who is not an entrusted person.

This section does not apply if the person believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code).

(2) A permitted disclosure is a disclosure that:

(b) is for the purposes of this Act or the regulations or of the Migration Act 1958 or the regulations made under that Act; or

is for the purpose of administering or managing the storage of identifying information; or

is for the purpose of making the identifying information in question available to the person to whom it relates; or

is to an agency of the Commonwealth, a State or a Territory in order to verify that a person is an Australian citizen; or

takes place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory, for the exchange of identifying information; or

is reasonably necessary for the enforcement of the criminal law of the Commonwealth, a State or a Territory; or

is required by an Australian law; or

is for the purpose of a proceeding, before a court or tribunal, relating to the person to whom the identifying information in question relates; or

is for the purpose of an investigation by the Information Commissioner or the Ombudsman relating to action taken by the Department; or

is for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official; or

takes place with the written consent of the person to whom the identifying information in question relates.

44 Unauthorised modification or impairment of identifying information

Unauthorised modification

A person commits an offence if:

the person causes any unauthorised modification of identifying information; and

the person intends to cause the modification; and

the person knows that the modification is unauthorised.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

Unauthorised impairment

A person commits an offence if:

the person causes any unauthorised impairment of:

the reliability of identifying information; or

the security of the storage of identifying information; or

the operation of a system by which identifying information is stored; and

the person intends to cause the impairment; and

the person knows that the impairment is unauthorised.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

Exception

If:

a disclosure of identifying information is made to a person who is not an entrusted person; and

the disclosure is a permitted disclosure within the meaning of section 43;

this section does not apply in relation to any modification or impairment of that identifying information by a person who is not an entrusted person.

Interpretation

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

In this section:

modification of identifying information; or

impairment of the reliability of identifying information; or

impairment of the security of the storage of identifying information; or

impairment of the operation of a system by which identifying information is stored;

by a person is unauthorised if the person is not entitled to cause that modification or impairment.

Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.

For the purposes of this section, a person causes any such unauthorised modification or impairment if the person’s conduct substantially contributes to it.

For the purposes of subsection (3), if:

a person causes any modification or impairment of a kind mentioned in that subsection; and

the person does so under a warrant issued under an Australian law;

the person is entitled to cause that modification or impairment.

45 Destroying identifying information

A person commits an offence if:

the person is the responsible person for identifying information; and

(b) the person fails to destroy the identifying information as soon as practicable after the person is no longer required under the Archives Act 1983 to keep the identifying information.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

Note: See Archives Act 1983 on the obligation to keep the identifying information.section 24 of the

This section does not apply if the identifying information is:

a personal identifier that is any of the following:

a measurement of a person’s height and weight;

a photograph or other image of a person’s face;

a person’s signature; or

identifying information derived from or relating to such a personal identifier.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Definitions

(3) For the purposes of this section, the responsible person for identifying information is:

if the identifying information is stored on a database—the person who has day-to-day control of the database; or

otherwise—the person who has day-to-day responsibility for the system under which the identifying information is stored.

(4) For the purposes of this section, identifying information is destroyed if:

in the case of identifying information that is a personal identifier—it is physically destroyed; and

in any other case—any means of identifying it with the person to whom it relates is destroyed.

(5) For the purposes of this section, a database is a discrete body of information stored by electronic means, containing:

indexes of persons who have provided personal identifiers in accordance with a request under this Division; and

their identifying information.