Amendments to Citizenship Eligibility As with the current Citizenship Act, the Australian Citizenship Act 1948 (Cth) (the Old Citizenship Act) afforded the Minister discretion to determine whether SCV holders and non-citizens on Norfolk and Cocos Islands are considered permanent residents for the purpose of citizenship eligibility. On the 16th of February 2001, the Minister, Philip Ruddock, exercised this discretion via a declaration under subsection 5A(2) of the Australian Citizenship Act 1948. The new legislative instrument (the Instrument) was entitled the Australian Citizenship (Permanent Resident Status – New Zealand Citizens) Declaration 2001. The Instrument came into effect on the 26th of February 2001. In essence, the Instrument removed eligibility to apply for Australian citizenship from New Zealand nationals who are deemed ineligible for social security payments as a result of the associated Bill - despite the continued right of such persons to remain indefinitely in Australia. The Instrument achieved this by excluding such people from the definition of ‘permanent resident’ in the Citizenship Act. The current citizenship legislative instrument issued under the Australian Citizenship Act 2007 contains the same exclusions. Similar changes were made to exclude affected New Zealanders from the family-sponsorship provisions of the Migration Regulations. An additional consequence of the Instrument is that children born in Australia to affected New Zealand citizens do not automatically acquire Australian citizenship by birth. This is particularly problematic for the children of those who hold New Zealand citizenship by descent, as these children are not also entitled to acquire New Zealand citizenship by descent. Such children are placed in an even more precarious situation than those who hold New Zealand citizenship; as, for example, they are not recognized as residents under the Health Insurance Act 1973 (Cth), and are not entitled to re-enter the country they were born in. It appears obvious that the intent of the Instrument was to ensure that New Zealand nationals who do not meet the amended definition of ‘Australian resident’ in the Social Security Act cannot bypass this exclusion via the acquisition of Australian citizenship. However, the then Minister for Immigration, Phillip Ruddock, later purported to Parliament that the intent of the 2001 changes to citizenship law was to implement the 2002 Treaty: “The new Instrument issued under the [Citizenship] Act, which gave effect to the requirement that New Zealand citizens entering Australia under those new arrangements are not treated as permanent residents for citizenship purposes, was required to support the new bilateral social security arrangements.” However, earlier that year the then Parliamentary Secretary to the Minister for Immigration, Andrew Robb, had clarified to the Hon. John Murphy MP that the Instrument was not required in order to implement the 2002 Treaty: “It is correct that on 26 February 2001 the social security arrangement announced jointly by the Governments of Australia and New Zealand did not contain any provision relating to New Zealand citizens’ eligibility for Australian citizenship.” Ruddock went on to inform the Parliament that the 2001 changes were not discriminatory, as they merely removed positive discrimination which had previously favoured New Zealand nationals over other migrants: “The changes do not constitute racial discrimination against New Zealanders, because there is now no distinction applied in relation to social security access between New Zealanders and other nationalities that arrive in Australia as migrants. Previously New Zealanders received preferential treatment, and any withdrawing of that treatment is not discrimination, but merely places New Zealanders on an equal footing with people of other nationalities” The former Immigration Minister, and then current Attorney-General, also affirmed that residents who are SCV holders are not subject to any limitation as to time: “New Zealand citizens are still permitted to travel to, live and work indefinitely in Australia under terms of the Trans-Tasman Travel Arrangements while the holders of Special Category visas.” Notably, the Instrument left the rights of non-citizen migrants in the Australian territories of Norfolk Island and Cocos Islands intact. Such non-citizens are still regarded as permanent residents for the purpose of citizenship eligibility if they are: “not subject to any limitation as to time imposed by law” New Zealand citizens residing within the Migration Zone are also not subject to any limitation as to time by law, but are now excluded from the definition of ‘permanent resident’ in the Citizenship Act nonetheless. - This is an extract from David Faulkners The Unequal Treatment of New Zealanders in Australia.
Posted on: Fri, 22 Nov 2013 23:00:00 +0000
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