Circular No 2004/2: Citizenship provisions relating to employment in the Australian Public Service

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Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

It has been replaced by the documents referred to in Circular 2004/9

The purpose of this Circular is

firstly, to clarify some issues raised in the context of the requirement in section 22 (8) of the Public Service Act 1999 (the Act) that an Agency Head must not engage, as an APS employee, a person who is not an Australian citizen, unless the Agency Head considers it appropriate to do so, and
secondly, to draw the attention of Agencies to the fact that, in many cases, an Australian birth certificate is no longer, of itself, evidence of Australian Citizenship.

It also advises of the revocation of Circular 1999/12.

2. The circular arises from a number of calls to the Commission's Helpline and recent changes to Australian citizenship requirements.

Citizenship as a Condition of Engagement

3. The provisions of section 22(8) reflect the Government's intention that the majority of employees in the Australian Public Service should be Australian citizens. It should be noted that the Act refers to citizens and does not refer to people, such as those with permanent residency status, who may be eligible to become citizens.

4. Whilst it is open to an Agency Head to engage an employee who is not an Australian citizen, where the Agency Head considers it appropriate to do so, such an action must be able to be justified by the specific circumstances of the engagement. As these circumstances reflect the operational requirements of individual agencies, the Australian Public Service Commission is not in a position to issue definitive instructions on when it might be appropriate for Agency Heads to waive the requirement for employees to be Australian citizens. However, an example of an appropriate circumstance might be a case in which citizens with the particular skills required to perform certain duties are not readily available.

5. Where an Agency Head decides to engage an employee who is not a citizen, the Agency Head must still be satisfied that the individual is legally able to work in Australia for the full period of employment proposed. It is essential for an employee who is not a citizen to maintain appropriate work rights in respect of any form of employment in Australia. This is a requirement that is independent of the PS Act and applies continually, whether or not a condition relating to Australian citizenship is imposed and regardless of whether the employee is notified of such a requirement at the time of engagement.

Requirements of the Public Service Act 1999

6. The repealed Public Service Act 1922 applied the citizenship requirement only to persons appointed under that Act. It also allowed a person to be appointed on probation for up to two years pending the grant of Australian citizenship.

7. Under the 1999 Act, the citizenship requirement applies to both non-ongoing and ongoing employees, and an Agency Head therefore needs to ensure that a prospective employee can demonstrate Australian citizenship, unless the Agency Head considers it appropriate to engage the employee without citizenship.

8. Where a prospective employee cannot demonstrate citizenship and an Agency Head considers it appropriate, the Agency Head may engage the employee subject to a condition under section 22(6) of the Act. The condition would normally require that the employee obtain and produce evidence of citizenship within a specified period. The condition:

is not linked to the probation process; and
requires the Agency Head to make a positive decision that it is appropriate to engage a non-citizen.

Evidence of Citizenship

9. Agencies should be aware that possession of an Australian birth certificate is not, of itself, evidence of Australian citizenship. Further information on how Australian citizenship can be demonstrated is available from the Department of Immigration and Multicultural and Indigenous Affairs-see especially www.citizenship.gov.au.

10. It should be noted that, in some instances, it is easier for immigrants from New Zealand to establish Australian citizenship - see Attachment A.

11. In many cases Australian citizenship will be held as "dual citizenship", together with citizenship of another country. If a person can demonstrate evidence of Australian citizenship, they meet the requirements of s 22(8) regardless of what other citizenship they may hold at the same time.

12. Dual citizenship may, however, cause other employment-related issues to arise. It may, for example, be a complication if the person is required to obtain a security clearance or to work in an area where that status could be seen as giving rise to a conflict of interest. Agency Heads will need, therefore, to be aware of, and manage effectively, recruitment to sensitive positions. In situations where specific qualifications, such as a security clearance, are required of the occupant of a position it would be desirable to ensure that the person has the qualification before they are formally offered the position.

New Zealand Citizens and Permanent Residence Status

13. There are no special provisions that apply to the employment of New Zealand citizens in the APS.

14. Circular 1999/12 is now revoked and replaced by the advice in Attachment A. Agencies should note there have been changes that affect the permanent resident status of New Zealand citizens, and will therefore impact on the time it takes before such a person is eligible to seek Australian citizenship.

15. Agencies unsure of the residential status of any New Zealand citizen should contact the Department of Immigration and Multicultural and Indigenous Affairs.

Further advice

16. For further information on matters concerning the requirements imposed by the Public Service Act 1999 you may contact the Commission's Helpline by phone - on (02) 6202 3859, or email - employmentadvice@apsc.gov.au. It may be appropriate for more complex or sensitive queries to be dealt with by email. Information in respect of citizenship (and whether a particular individual is a citizen) should be sought from the Department of Immigration and Multicultural and Indigenous Affairs.

Kathy MacDermott
Group Manager
Policy and Employment Group

May 2004

Attachment A

Permanent residence status and New Zealand citizenship

Under the Trans-Tasman Travel Arrangement, most New Zealand citizens are automatically granted a Special Category Visa (SCV) on arrival in Australia, which enables them to live and work indefinitely in Australia.

Prior to 26 February 2001, a person holding an SCV was considered to be a permanent resident for the purposes of the Australian Citizenship Act 1948.

New bilateral social security arrangements between Australia and New Zealand were introduced on 26 February 2001. Under these arrangements, New Zealand citizens are still granted an SCV on arrival in Australia and can continue to live and work indefinitely in Australia. However, most New Zealand citizens are now required to obtain Australian permanent residence before they are able to access certain social security payments and acquire Australian citizenship.

A limited number of New Zealand citizens will continue to be treated as permanent residents for the purposes of the Citizenship Act (and therefore do not need to apply for a permanent residence visa in order to acquire Australian citizenship). They are New Zealand citizens who:

were in Australia on 26 February 2001 as an SCV holder
were outside Australia on 26 February 2001, but were in Australia as an SCV holder for at least one year in the two years prior to that date, and have subsequently returned to Australia
have a certificate, issued under the Social Security Act 1991, stating that they were residing in Australia on a particular date.

A New Zealand citizen who arrives in Australia on or after 27 February 2001 and does not fall within one of the three categories above is required to apply for and acquire a permanent residence visa if they wish to acquire Australian citizenship.

For the purposes of selection and engagement in the APS, a New Zealand citizen who arrives in Australia on or after 27 February 2001 with an SCV but who does not fall within one of the three categories outlined above is not to be considered as a permanent residence visa holder.