Australian nationality law

Australian nationality law determines who is and who is not an Australian citizen.

Australian Citizenship Act 2007
Coat of Arms of Australia.svg
Parliament of Australia
  • An Act relating to Australian citizenship
CitationNo. 20 of 2007
Territorial extentAustralia
Enacted byHouse of Representatives
Enacted1 March 2007 (with amendments from the Senate)
Enacted bySenate
Enacted26 February 2007
Royal assent15 March 2007
Commenced1 July 2007
Legislative history
Bill introduced in the House of RepresentativesAustralian Citizenship Bill 2005
Introduced byJohn Cobb
First reading9 November 2005
Second reading31 October–28 November 2006
Third reading28 November 2006
Bill introduced in the SenateAustralian Citizenship Bill 2006
Introduced byIan Campbell
First reading30 November 2006
Second reading7–26 February 2007
Third reading26 February 2007[1]
Repeals
Australian Citizenship Act 1948
Status: Amended

The legal status of Australian nationality or Australian citizenship was created by the Nationality and Citizenship Act 1948[2] (in 1973 renamed the Australian Citizenship Act 1948), which came into force on 26 January 1949.[3] Australian nationality and citizenship existed prior to this date but were not legal concepts: Australian nationality or citizenship meant identification with the Australian community and participation in its politics.[4][5][6][7] The 1948 Act was amended many times, notably in 1973, 1984, 1986 and 2002. It was replaced by the Australian Citizenship Act 2007,[8] which commenced on 1 July 2007.

On 13 December 1973, Australia acceded to the 1961 Convention on the Reduction of Statelessness and to the Convention relating to the Status of Refugees.[citation needed]

Australian citizenship law is administered by the Department of Home Affairs which can issue certificates of citizenship on naturalisation or on request provide other proof or evidence of Australian citizenship. Australian passports are issued to Australian citizens by the Australian Passport Office of the Department of Foreign Affairs and Trade.[citation needed]

Nationality establishes one's legal international identity as a member of a sovereign nation.[9] Though it is not synonymous with citizenship, for rights and obligations granted under domestic law for domestic purposes, the United Kingdom, and thus the Commonwealth Nations, have traditionally used the words interchangeably.[10] In general, a person may acquire nationality automatically through birth in Australia or through Australian descent, or by application after a period of residence in Australia. The process of acquiring nationality by application is referred to as "naturalisation".[11]

History of Australian citizenshipEdit

Though the date when Australia was first encountered by Europeans remains obscure, Dutch, Portuguese and Spanish explorers reported sighting the territory from the 1540s.[12] Through the seventeenth century, European exploration of the continent continued, but no permanent European settlement was made.[13][14] A Swiss former wine merchant and plantation administrator in Batavia, Jean-Pierre Purry, first proposed colonisation of Australia in a letter in 1717 to the Governor General of the Dutch East India Company. Failing to secure Dutch interest, he approached the French East India Company and pitched his colonisation scheme to the British ambassador in Paris, Horace Walpole[15] Walpole sent the plan to London, where it was published in 1724.[16] In 1770, explorer James Cook claimed New South Wales for Britain and upon his return the following year, began urging colonisation.[17][18] After the British lost their American colonies in the Revolutionary War, a British loyalist, James Matra, who had sailed with Cook and settled in the United States wrote a letter urging settlement of Australia in 1783. Because prisons in England were overflowing and colonisation might open the possibility of tea trade in the Pacific and China, his proposal prompted government inquiries and a decision to colonise.[19] The first ship to arrive in Australia landed and founded the settlement of Sydney in 1788.[17] The second group of settlers arrived in Port Phillip Bay (now in the state of Victoria) in 1803, and that same year, Britain formally acquired Van Diemen's Land (now the state of Tasmania).[19][20] Colonisation spread to Western Australia in 1829, South Australia in 1836, and Queensland in 1842.[21] In 1850, the Australian Constitutions Act was passed by the British parliament enabling each colony to establish individual constitutional frameworks.[22]

In Britain, allegiance, in which subjects pledged to support a monarch, was the precursor to the modern legal concept of nationality.[23] The crown recognized from 1350 that all persons born within the territories of the British Empire were subjects.[24] Those born outside the realm — except children of those serving in an official post abroad, children of the monarch, and children born on a British sailing vessel — were considered by common law to be foreigners.[25] Marriage did not affect the status of a subject of the realm,[26] but under common law, single women, including divorcées, were not allowed to be parents thus their children could not derive nationality maternally and were stateless unless legitimated by their father.[27][26] Married women were subjugated to the authority of their husbands under coverture. Law was structured to maintain social hierarchies by regulating familial matters such as who could marry, legitimacy, and inheritance.[28][29] Nationality laws passed by the British Parliament were extended only to the Kingdom of Great Britain, and later the United Kingdom of Great Britain and Ireland.[24][30] Other than common law, there was no standard statutory law which applied for subjects throughout the realm, meaning different jurisdictions created their own legislation for local conditions, which often conflicted with the laws in other jurisdictions in the empire.[31] For example, the first Australian nationality law was passed in New South Wales in 1828. It was amended in 1848 to provide that upon marriage, foreign wives automatically derived the nationality of their husband upon marriage to a British subject.[32] Similarly from 1865 in Victoria and 1871 in Western Australia, foreign wives lost their nationality upon marriage, gaining the nationality of the husband.[33][34] In Queensland, from 1867, a foreign husband of African or Asian descent could acquire naturalisation through his resident wife.[33] In 1875, New South Wales followed the British Naturalisation Act 1870, by denaturalising British women who married aliens. Though similar legislation was not passed in the other Australian colonies, it became standard practice for women to lose their nationality upon marriage according to naturalisation records of widows seeking repatriation.[32] Each colony defined who was considered to be a British subject in their jurisdiction, but naturalisation in one colony was not necessarily recognized in other colonies.[35] In other words, though persons in each British colony were subjects, the rights to which British subjects were entitled differed depending on where they lived.[36]

As early as 1845, there was a movement in Britain to create a federal structure for the Australian colonies, but there was reluctance on the part of the colonies because of policy issues and rivalries between them.[37] By the early 1880s, the colonies began to recognize the indifference of British foreign policy to expanding European interest in the Pacific and that such a union might serve to protect the interests of all of the colonies. In 1883, leaders called a conference, which resulting in submitting a proposal and gaining authority to convene the Federal Council of Australasia in 1885. The proposed body included each Australian colony, as well as the colonies of Fiji and New Zealand. By the time the approval was given by Britain, New South Wales, New Zealand and South Australia had opted out of the federation. South Australia did later join the Federal Council in 1889, but withdrew in 1891.[38] The Federal Council was granted authority to act on issues affecting inter-island affairs, such as copyrights, defence, family law, trade, and naturalisation, and for legislation passed by it to take priority over any conflicting colonial statutes.[39][40] After a series of public consultations, in 1900, the Federal Council was abolished, though its legislation was preserved.[22][41] It was replaced by the Commonwealth of Australia, whose constitution created uniform policy for the six federated colonies from the effective date of 1 January 1901.[42] Though the concept of Australian nationality was debated, during the constitutional deliberations, the "supranational concept of British nationality" prevailed and the constitution was silent on the issue.[43] New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia became states under a federal structure which governed domestic matters and was part of the British system for governance of foreign relations.[44]

After having invited foreign workers from the 1840s to Australia to work, by the 1880s the colonies began to draft regulations to restrict Asian workers.[45] After federation, one of the first acts passed was the Immigration Restriction Act 1901, which formed the basis of the White Australia policy which imposed racial restrictions on immigration until 1973.[22][46] While the policy prohibited males of various ethnicities who could not pass a literacy test, it allowed wives and children regardless of their ethnicity, even if they were illiterate, as long as the husband was an eligible immigrant.[47] The Australian Naturalisation Act 1903 expressly prohibited native persons of Africa, Asia, or the Pacific Islands, except New Zealand, from being naturalised.[48] In 1911, at the Imperial Conference a decision was made to draft a common nationality code for use across the empire.[49] The British Nationality and Status of Aliens Act 1914 allowed local jurisdictions in the self-governing colonies to continue regulating nationality in their territories, but also established an imperial nationality scheme throughout the realm.[50] The uniform law, which went into effect on 1 January 1915, was interpreted to mean that changes to an individual country's laws were only allowed if all of the other British countries unanimously concurred.[51][52] It required a married woman to derive her nationality from her spouse, meaning if he was British, she was also, and if he was foreign, so was she.[51][53] It stipulated that upon loss of nationality of a husband, a wife could declare that she wished to remain British and provided that if a marriage had terminated, through death or divorce, a British-born national who had lost her status through marriage could re-acquire British nationality through naturalisation without meeting a residency requirement.[54] The statute reiterated common law provisions for natural-born persons born within the realm on or after the effective date. By using the word person, the statute nullified legitimacy requirements for jus soli nationals.[55] For those born abroad on or after the effective date, legitimacy was still required, and could only be derived by a child from a British father (one generation), who was natural-born or naturalised.[56] Naturalisations required five years' residence or service to the crown.[57] The common code was adopted in Australia in 1920.[44]

Amendments to the British Nationality Act were enacted in 1918, 1922, 1933 and 1943 changing derivative nationality by descent and modifying slightly provisions for women to lose their nationality upon marriage.[58] The 1926 Imperial Conference, formally granted dominion status to Australia, Canada, the Irish Free State, Newfoundland, New Zealand, and South Africa, establishing the associated autonomous communities of equal status within the British Empire, which shared a common allegiance to the Crown.[59] In 1931, the Statute of Westminster confirmed full legislative independence for the Dominions, creating the possibility for separate nationality in member states of the empire.[35] After the World Conference on the Codification of International Law held in The Hague in 1930, discussion commenced throughout the empire as to whether laws should be modified to conform with the provisions to prevent statelessness in the Convention on Certain Questions Relating to the Conflict of Nationality Laws.[60][61] Britain modified its laws to prevent women from becoming stateless in 1933, by allowing a married woman to retain her nationality if her husband's native country did not automatically give her his nationality.[62] In 1935, Ireland drafted a statute, the Irish Nationality and Citizenship Act, which created a distinct nationality for Irish persons. In 1935 in New Zealand and in 1936 in Australia, legislation was passed to allow married women who might become aliens by marriage to retain their British nationality while residing in either country.[63][64] The 1943 revision to the British Nationality Act allowed a child born abroad at any time to be a British national by descent if the Secretary of State agreed to register the birth.[62]

In 1946, Canada passed a nationality law that would serve as a catalyst for change throughout Britain. The law redefined the order of nationality, stipulating that Canadians were nationals of Canada first, and only secondarily nationals of Britain, and eliminating derivative nationality for Canadian wives.[65][66][67] Almost immediately New Zealand and Australia followed with amendments to their nationality statutes, granting women individual nationality.[68] The Australian Nationality Act of 1946 allowed women to remain British subjects in Australia unless they expressly stated they wished to take their husband's nationality.[69] Under the terms of the British Nationality Act 1948 British nationals in Australia were reclassified at that time as "Citizens of the UK and Colonies" (CUKC).[70] The basic British nationality scheme did not change overmuch, and typically those who were previously defined as British remained the same. Changes included that wives and children no longer automatically acquired the status of the husband or father, children who acquired nationality by descent no longer were required to make a retention declaration, and registrations for children born abroad were extended.[71] Australia enacted its own Nationality and Citizenship Act that same year, which went into effect on 26 January 1949. Under its terms, a British subject who was born, or whose father was born or naturalised in Australia or the Territory of Papua automatically became Australian nationals.[72] Aboriginal Australians, and Torres Strait Islanders were granted nationality under the Act, though their rights of citizenship remained curtailed until 1967.[73] It granted nationality to married women who were British subjects on the date of commencement of the Act, or to a woman who was the widow of someone who but for death would have become a national on that date.[74] It also conferred nationality on British subjects who had been an ordinary resident of Australia for at least five years.[70]

The 1948 Act was amended many times, notably in 1958, 1973, 1984, 1986 and 2002. In 1973 the 1948 Act was renamed the Australian Citizenship Act 1948. On 15 March 2007, the Australian Citizenship Act 2007 received Royal Assent and replaced the 1948 Act, commencing on 1 July 2007.[8] Between 1948 and 1984 Australians were Australian nationals and British subjects. In the latter year, constitutional reform established only Australian nationality, eliminating British subject and the remaining provisions containing gender and marital discrimination in the nationality laws.[69][75] The relationship between Australian citizenship and the shared citizenship of the British Empire or Commonwealth continued to evolve. In 1986, the Australia Act 1986 severed almost all of the last remaining constitutional links between the United Kingdom and Australia. Subsequently, in 1988, for the first time, the High Court ruled that anyone who was not an Australian citizen, whether or not a subject of the Monarch of the United Kingdom, was an alien.[76]

Nationality law changesEdit

The principal milestones in the development of Australian nationality law have been:

  • 1920: The Nationality Act 1920 codified the concept of a British subject, as defined under Australian law, effective 1 January 1921.[77][78]
  • 1948: The Nationality and Citizenship Act 1948 created the concept of Australian citizenship, and came into force on 26 January 1949. Australian citizens continued to also be British subjects.[2]
  • 1958: On 8 October 1958, provisions which caused some naturalised Australians resident outside Australia and New Guinea for 7 years to lose Australian citizenship (section 20 of the 1948 Act) were repealed.
  • 1973: Significant changes to the law implemented by the Whitlam Labor government, mostly effective on 1 December 1973.
    • Distinction between migrants from Commonwealth and other countries (in terms of ability to become Australian citizens) abolished. The previous residence requirements of 1 year (Commonwealth) and 5 years (non-Commonwealth) to become Australian citizens replaced by a common residence period of 3 years, but with a six-month transition period.
    • Age of majority for citizenship purposes reduced from 21 to 18.
    • The 1948 Act was renamed the Australian Citizenship Act 1948.
  • 1975: The Papua New Guinea (Australian Citizenship) Regulations 1975 provided that any Australian citizen becoming a citizen of Papua New Guinea at Independence on 16 September 1975 should lose Australian citizenship.
  • 1984: The Australian Citizenship (Amendment) Act 1984 became effective on 22 November 1984 and made significant changes, including that Australian law would no longer regard Australians as "British subjects". British subjects in Australia who were not Australian citizens became permanent residents.[79] These former British subjects retained the vote, but Australian passports were only to be issued to Australian citizens. At the same time, the residence period for naturalisation was reduced from 3 to 2 years.
  • 1986: The Australian Citizenship (Amendment) Act 1986 restricted the previous right of jus soli, and provided that children born in Australia on or after 20 August 1986 would only be Australian citizens if at least one parent is an Australian citizen or permanent resident.[80][81]
  • 1994: From 31 January 1994, new citizens have been required to take a pledge of commitment[82] to Australia, instead of an oath to the Queen of Australia.
  • 2002: From 4 April 2002, Australians becoming citizens of other countries by a voluntary act no longer lose Australian citizenship.
  • 2007: On 1 July 2007, the Australian Citizenship Act 2007 replaced the 1948 Act. Many Australians who had lost citizenship under the 1948 Act, and their children, are given access to Australian citizenship. The residence period for naturalisation was increased from 2 to 4 years,[83] with a 3-year transition period for existing permanent residents, and a citizenship test was introduced.

Rights and dutiesEdit

RightsEdit

Australian citizens enjoy the following rights (subject to certain exceptions):

  • entitlement to an Australian passport and to Australian consulate assistance overseas
  • entitlement to re-enter Australia at any time without any immigration restrictions
  • immunity from deportation
  • entitlement to register overseas-born children as Australian citizens by descent (subject to some additional criteria)
  • entitlement to seek employment by the Federal (Commonwealth) Government, or in the Australian Defence Force (where citizenship is normally required)[84]
  • entitlement to vote, with age and sometimes other conditions
  • entitlement to stand for public office (but dual citizens cannot stand for the Federal Parliament unless they have taken all reasonable steps to renounce their foreign citizenship, although they are allowed to stand for State parliaments)
  • the right to permanently reside in Australia, i.e. to live and work in Australia ("right of abode"), and entitlements to public services such as subsidised education, health services and social security.

DutiesEdit

The following duties are expected of Australian citizens:[85]

  • obey the law
  • pay tax
  • defend Australia should the need arise
  • enrol to vote if above 18 years of age, and vote at all elections and referenda (unless there is a reasonable excuse such as a religious objection, being overseas or illness on polling day)
  • serve on a jury, if called upon (unless there is a valid reason or exemption)

Acquisition of Australian citizenship on 26 January 1949Edit

A distinct Australian nationality or citizenship was created on 26 January 1949. Persons who were British subjects on that date would continue to have that status but could in addition apply to acquire the new Australian citizenship if they were:

  • born or naturalised in Australia (in general, birth in Australia automatically conferred British subject status)
  • born in New Guinea
  • born overseas to an Australian father provided they had entered Australia with permanent entry permits on or before 26 January 1949
  • ordinarily resident in Australia for the 5 years preceding 26 January 1949
  • women who were married to Australian men and had entered Australia with permanent entry permits before 26 January 1949.

A person could now acquire Australian citizenship even if they also held or obtained the nationality of another Commonwealth country, or if they also held foreign citizenship.

Status of British subjectsEdit

The term British subject had a particular meaning in Australian nationality law. The term encompassed all citizens of countries included in the list contained in the Nationality and Citizenship Act 1948. The list of countries was based on, but was not identical with, those countries (and their colonies) which were members of the Commonwealth. The list was amended from time to time as various former colonies became independent countries, but the list in the Act was not necessarily up-to-date as far as to constitute exactly a list of countries in the Commonwealth at any given time. This definition of "British subject" meant that, for the purposes of Australian nationality law, citizens of countries which had become republics, such as India, were classified as "British subjects".[citation needed]

The Australian Citizenship (Amendment) Act 1984 removed the status of "British subject" from Australian citizenship law, with effect from 22 November 1984,[86] and British subjects who had not acquired Australian citizenship came to be treated as non-citizen permanent residents. They were not entitled to an Australian passport, although existing passports held by non-citizens continued to be valid until each expired. They continued, and still continue, to have voting rights if they were on the electoral roll immediately before 26 January 1984.[87]

The status of British subject ceased to apply to a person otherwise entitled but who acquires citizenship of Australia or another Commonwealth country.[citation needed]

Citizenship by birthEdit

A person born in Australia before 25 January 1949 was automatically a British subject, based on the jus soli principle, regardless of the status of their parents: children born to visitors or foreigners also acquired citizenship by birth. (The only exception was children of foreign ambassadors, who were immune from local jurisdiction and local duties of allegiance; the children's nationality would be determined by the foreign country's law.) Such persons need to apply for Australian citizenship, otherwise since 20 August 1986 they have the status of permanent resident.[citation needed]

A person born in Australia between 26 January 1949 and 19 August 1986, automatically acquired Australian citizenship.[88] Until 21 November 1984, such a person had the status of Australian citizen and British subject, but after that date the status of "British subject" ceased to exist in Australia.

The jus soli principle was abolished from 20 August 1986, with persons born after that date acquiring Australian citizenship by birth only if a descendant of at least one parent who was an Australian citizen or permanent resident at the time of birth.[80] The definition of parenthood was tested in H v Minister for Immigration and Citizenship (2010), where it was held that parenthood does not necessarily require it to be of a biological nature.[89]

A child born in Australia (and who is not otherwise an Australian citizen) and who lives in Australia automatically acquires Australian citizenship on his or her 10th birthday, if the child has not been granted or otherwise acquired Australian citizenship in the meantime. This occurs automatically (by operation of law), and applies irrespective of the immigration status of the child or his/her parents.[90]

Children born in Australia whose parents are stateless and not entitled to any other country's citizenship may in some circumstances apply for and be granted Australian citizenship. 'Baby Ferouz' was born to Rohingya Muslim parents who had fled from Myanmar which did not recognise them as citizens. His parents and siblings were being held at the Nauru Detention Centre, however the family was flown to Brisbane due to complications in pregnancy, with the result that while baby Ferouz was born in Australia, he was deemed to be an unauthorised maritime arrival and could not be given a protection visa.[91] In December 2014, he and his family were given a temporary protection visa which allowed them to be released from immigration detention.[92]

Citizenship by descentEdit

A person born outside Australia to an Australian citizen parent can acquire Australian citizenship in the following ways:

  • British subjects born outside Australia before 26 January 1949 with an Australian father became Australian citizens automatically upon entering Australia with a permanent visa (up to 30 April 1987).
  • A person born outside Australia or New Guinea before 26 January 1949 may be registered as an Australian citizen provided –
    • that person has a parent born or naturalised in Australia or New Guinea, and
    • the parent became an Australian citizen on 26 January 1949.
  • A person born outside Australia on or after 26 January 1949 may be registered as an Australian citizen by descent provided –
    • they had an Australian citizen parent at the time of birth and
    • If the Australian parent acquired Australian citizenship by descent, that parent must have been lawfully present in Australia for a period or periods totalling at least 2 years at some time in their life.

Australian citizenship by descent is not conferred at birth, and a child born outside Australia to an Australian parent must apply for citizenship.[93] If aged 18 or over, an applicant for Australian citizenship by descent must be of good character.

Children of former Australian citizensEdit

Where an Australian parent has lost Australian citizenship before the birth of a child, the child is not eligible for Australian citizenship by descent. However, such a child is eligible for a special conferral of Australian citizenship (naturalisation) under section 21(6) of the 2007 Act if the Australian citizen parent lost Australian citizenship under section 17 of the 1948 Act prior to the child's birth. Section 17 concerned automatic loss of Australian citizenship upon naturalisation in another country as an adult before 4 April 2002. Children of former Australian citizens who lost their Australian citizenship under section 18 (renunciation), section 20 (loss by naturalised citizens who left Australia before 1951) or section 23 (automatic loss as a minor) do not benefit from this concession.[citation needed]

There is no age limit and those over 18 are eligible to apply.[citation needed]

Citizenship by conferral (formerly known as naturalisation)Edit

 
Citizenship ceremony on beach near Cooktown, Queensland. 2012
 
Citizenship ceremony in Calamvale, Queensland. 2017.

"Naturalisation is the process by which one undertakes allegiance to a new sovereign and, often enough, sheds allegiance to another sovereign."[94] Between 26 January 1949 and 30 November 1973, British subjects were able to apply for registration as an Australian citizen after one year's residence in Australia as an immigrant, and there was no requirement to attend a citizenship ceremony. Non-British subjects were required to apply for naturalization, which had stricter requirements, including a five-year residency. They were required to attend a citizenship ceremony and swear an oath of allegiance to the Crown. From 1966 they were also obliged to renounce "all other allegiance".[citation needed]

The Australian Citizenship Act 1973 ended the preferential treatment for British subjects from 1 December 1973. From that date, the same criteria for naturalisation applied to all applicants for citizenship by naturalisation, though the special status of British subject was retained. Also from that date the age of majority for citizenship matters was reduced to eighteen years, so that they could apply for citizenship in their own right. The common residence requirement of three years was reduced to two years from 22 November 1984. The status of British subject was removed from Australian citizenship law, with effect on 1 May 1987.[95] (That status had been discontinued in British law on 1 January 1983.)

People who became permanent residents from 1 July 2007 must have been lawfully resident in Australia for four years before applying for citizenship by conferral.[96] The "lawfully resident" test could be satisfied by any period of lawful stay in Australia including a stay on a temporary or bridging visa, but the applicant must:

  • have been in Australia for 12 months as a permanent resident,
  • have had absences from Australia of no more than twelve months (total) in the previous four years, including no more than three months (total) in the 12 months before applying,[97]
  • have not been in Australia at any time without a valid visa in the four years preceding application,
  • understand the responsibilities and privileges of Australian citizenship (except for applicants aged 60 or over),
  • be able to speak and understand basic English (except for applicants aged 60 or over),
  • understand the nature of the application, and
  • intend to reside in Australia or to maintain a close and continuing association with Australia.

Children aged under 18 can be included in the application of a responsible parent. The standard residence requirements do not apply to such children. There are some exceptions to the standard requirements, including:

  • children of former Australian citizens,
  • Australian Defence Force veterans,
  • former Australian citizens and those born in Australia,
  • children adopted by Australian citizens,
  • spouses and interdependent partners of Australian citizens,
  • persons born in Papua before Independence in 1975, or
  • persons born in Australia who are stateless.

Those who were present in Australia as permanent residents before 1 July 2007 remain subject to the previous residence requirement (in force since 1984, e.g. resident for 2 years) on any application for conferral made before 1 July 2010 – they must:

  • have been present in Australia as a permanent resident for a total of two years in the five years before application,
  • have been present in Australia for a total of 12 months in the two years before application.

In general, applicants aged 16 or over must attend a citizenship ceremony and make a pledge of commitment, except for:

  • children of former Australian citizens granted citizenship under section 21(6) of the Act,
  • persons born in Papua before independence granted citizenship under section 21(7) of the Act,
  • stateless persons born in Australia and granted citizenship under section 21(8) of the Act, or
  • persons with a permanent or enduring physical or mental incapacity that means the person is not capable of understanding the nature of the application, or demonstrating a basic knowledge of English, or demonstrating an adequate knowledge of the responsibilities and privileges of Australian citizenship.

From 1 October 2007, most applicants for Australian citizenship by conferral aged between 18 and 60 must pass the Australian citizenship test, which focuses on Australia's values, history, and traditional and national symbols.

Loss of Australian citizenshipEdit

Prior to 4 April 2002, many Australian citizens lost Australian citizenship through acquiring another citizenship, or being the child of a parent who did so. From that date, the scope to lose Australian citizenship is more limited. In any case the person must have another citizenship to revert to, to avoid creating a stateless person.

Adult Australian citizens acquiring another citizenshipEdit

Between 26 January 1949 and 3 April 2002, an adult Australian generally lost Australian citizenship automatically upon acquisition of another citizenship by a 'voluntary and formal act',[98] with the following rules:

  • the age of majority in this respect was 21 until 30 November 1973, and 18 thereafter,
  • before 22 November 1984, Australian citizenship was not lost if the acquisition of another citizenship took place while the person was inside Australia,
  • from 22 November 1984, the incidental acquisition of another citizenship as the result of another activity (such as an application for a foreign passport, or foreign residence) did not cause loss of Australian citizenship,
  • loss of Australian citizenship still occurred even if no oath of allegiance was taken to the other country,
  • loss of Australian citizenship occurred even if the Queen was also Head of State of the other country (i.e. a Commonwealth realm such as Canada, New Zealand or the United Kingdom),
  • it was not relevant whether the acquisition of another citizenship was reported to the Australian authorities.

Section 17 of the 1948 Citizenship Act was repealed with effect from 4 April 2002.[99] Although the repeal was not retroactive, since 1 July 2007 former Australian citizens who lost citizenship because of the section are generally able to apply for resumption of Australian citizenship.

Loss of citizenship of childrenEdit

Children did not lose Australian citizenship by virtue of their own actions, but could lose Australian citizenship if a parent lost Australian citizenship:

  • if the child did not have any other citizenship, it did not lose Australian citizenship.
  • before 22 November 1984 there was only one 'parent' for citizenship purposes, usually the father. Loss of Australian citizenship by the other parent did not affect the child's status.
  • from 22 November 1984 loss of Australian citizenship by either parent could affect the child's citizenship. However, a child would not lose Australian citizenship in this circumstance if one parent remained an Australian citizen (or was an Australian citizen at death).

Loss of Australian citizenship occurred under section 23 of the 1948 Act. Even after the repeal of section 17 of the Act in 2002, section 23 was left in place. It remains possible for an Australian child to lose Australian citizenship this way. However, since the repeal of section 17, this is much less common and in general only applies where a parent is deprived of Australian citizenship, or renounces Australian citizenship under section 18 of the Act.

Under the Australian Citizenship Act 2007, in force from 1 July 2007, an Australian child no longer automatically loses Australian citizenship based on a parent's actions. However, the Minister for Immigration and Citizenship has the right to deprive a child of Australian citizenship in these circumstances on a discretionary basis.

Naturalised Australian citizensEdit

Between 26 January 1956 and 7 October 1958, a naturalised Australian citizen lost Australian citizenship if resident outside Australia or New Guinea for a continuous period of 7 years without registering annually a declaration of intent to retain Australian citizenship. This occurred by virtue of section 20 of the Nationality and Citizenship Act 1948 which was repealed on 8 October 1958. The provision had the potential to create stateless persons.

Since 1 July 2007, persons who lost Australian citizenship because of the provision may apply to resume Australian citizenship, subject only to being of good character.

Australian citizens connected with BurmaEdit

Burma became independent outside the Crown's dominions on 4 January 1948. In the Burma Independence Act 1947 the United Kingdom legislated to remove British subject status on that date from:

  • any person born in Burma whose father or paternal grandfather was born in Burma, and neither father nor paternal grandfather born in a British territory or British protectorate; and
  • women married to men who lost British subject status by virtue of the above provision.

Such persons who were domiciled in the United Kingdom or "His Majesty's dependencies" were given two years to elect to remain British.

Australian legislation was not updated at the time and hence the common law applied. British subjects connected with Burma lost British subject status under Australian law only if resident in Burma. As a result, some British subjects connected with Burma acquired Australian citizenship on 26 January 1949 if resident in Australia for 5 years at that point.

On 29 July 1950, the Nationality and Citizenship (Burmese) Act 1950 removed the discrepancy between Australian and British law on the status of persons connected with Burma. As a result, Australian citizenship was lost on 29 July 1950 by persons who had had British nationality removed from them under the UK legislation in 1948, and persons descended from or married to such persons. Such persons had until 29 July 1952 (two years from the date of commencement of the Act) to register a declaration of intention to remain a British subject. If such a declaration was registered, the person was deemed never to have lost Australian citizenship.

Service in the armed forces of an enemy countryEdit

Section 19 of the 1948 Act stated: "An Australian citizen who, under the law of a foreign country, is a national or citizen of that country and serves in the armed forces of a country at war with Australia shall, upon commencing so to serve, cease to be an Australian citizen."

Despite being involved in a number of armed conflicts since 1949, Australia has not declared a formal state of war on another sovereign nation in that period, and hence section 19 has not operated up to now. It has been re-enacted as section 35 of the 2007 Act.

Deprivation of Australian citizenshipEdit

A naturalised Australian citizen may be deprived of Australian citizenship under section 34 of the 2007 Act in the following circumstances:

  • conviction for certain offences against the Australian Citizenship Act 1948 or the Migration Act 1958. These mainly involve fraud in the person's citizenship or migration application.
  • where the person receives a prison sentence of 12 months or more (in any country) for an offence committed before the person's application for Australian citizenship was approved. Deprivation of citizenship cannot occur for this reason if the person has no other citizenship.

Any Australian citizen may also be deprived of Australian citizenship by virtue of the same section in these circumstances:

  • In December 2015, the 2007 Act was amended by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) which introduced three mechanisms by which citizenship may be forfeited: renunciation by conduct (s 33A); An expanded s 35 to cover service in a declared terrorist organisation; and a new power for the Minister to cancel citizenship after a person is convicted of one of a range of offences, most of which are connected to terrorism or treason, and the Minister is satisfied of certain public interest criteria (s 35A).[100][101]
  • The explanatory memorandum makes it clear that engaging in the specified 'terrorism' conduct is what shows that the person has acted inconsistently with their allegiance to Australia. The loss of citizenship is said to occur by operation of law.[102] The idea that something can be surrendered by operation of law is well established in Australian case law – see for example Bagnall v White[103] – however the recent decision of the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection has indicated that it may be difficult for courts to avoid a conclusion that an administrative decision must be made by someone at some point, and that a Minister must hold ultimate responsibility for his or her department's decisions.[104][105]
  • The first person to be deprived of Australian citizenship for terrorism offences was Islamic State fighter Khaled Sharrouf in February 2017 and he was thus left with his Lebanese citizenship.[106]

Ex-citizen visaEdit

An Australian citizen whose citizenship ceases while they are in the Australian migration zone is taken to have been immediately granted an ex-citizen visa; this is a permanent visa to remain in, but not re-enter, Australia: Migration Act 1958, s 35.[107][108] They need not be told that they have lost Australian citizenship, nor that they now hold this visa. If they leave Australia and wish to re-enter, they will need a Resident Return Visa or other permanent visa.[108] Since 2013, when the Australian mainland was excised from the migration zone, the migration zone has effectively ceased to exist, so that the automatic granting of the ex-citizen visa no longer applies.

In any event, an ex-citizen visa may be cancelled on character grounds and the person then removed from Australia; this is likely where citizenship has ceased because it has been revoked under section 21 of the Act.

Resumption of Australian citizenshipEdit

Since 1 July 2007, a former Australian citizen can resume Australian citizenship[109] if:

  • the former citizen lost Australian citizenship automatically under section 17, 20 or 23 of the 1948 Act, subject only to being of "good character".
  • the former citizen renounced Australian citizenship, subject to an additional requirement that the renunciation must have been to acquire or retain another nationality, or to avoid hardship or disadvantage.

Children born to former Australian citizens (only those who lost Australian citizenship by virtue of section 17 of the Act) after loss of the parent's citizenship, and before the parent resumed citizenship, may be considered for a grant of Australian citizenship (whether aged under or over 18). There is no requirement for the parent to resume citizenship. This policy was put in place by Ministerial policy on 13 October 2003 for children under 18 and extended in the 2007 Act to those aged 18 or over.

Some former Australian citizens may qualify for a Resident Return Visa to return to Australia as permanent residents. After 12 months as a permanent resident in Australia, it is normally possible for a former Australian citizen to apply for Australian citizenship.

Citizenship by adoptionEdit

Australian citizenship is acquired automatically on adoption in the following circumstances:

  • the adoption takes place in Australia on or after 22 November 1984,
  • the child is a permanent resident, and
  • at least one adoptive parent is an Australian citizen.

In all other circumstances an application for grant of Australian citizenship must be made for the child.

On 8 May 2005, the Minister for Citizenship announced a policy change to require all child applicants for grant of Australian citizenship by adoption to hold an adoption visa, or other permanent visa. However, it does not appear that there is any requirement for the child to be physically resident in Australia.

The Australian Citizenship Act 2007 additionally allows for simplified registration of a person as an Australian citizen where that person was adopted overseas in accordance with the Hague Adoption Convention.

Visa requirementsEdit

An Australian passport does not, in itself, entitle the holder to enter another country. To enter another country, the traveller must comply with the visa and entry requirements of the other countries to be visited, which vary from country to country and may apply specifically to a particular passport type, the traveller's nationality, criminal history or many other factors.

According to the 2019 Henley Passport Index, Australian passport holders can visit 181 countries without a visa or by being issued a visa on arrival.[110]

Multiple citizenshipEdit

With effect from 4 April 2002, there are no restrictions (under Australian law) on Australians holding the citizenship of other countries.

Prior to 4 April 2002, it was still possible for Australians in some circumstances to hold dual citizenship, including:

  • those born in Australia who automatically acquired another citizenship at birth;
  • migrants naturalising in Australia, provided their former country did not revoke their citizenship;
  • children born overseas to Australian parents who automatically acquired the citizenship of their country of birth (e.g. the U.S. or Canada) as well as Australian citizenship by descent.

Holding a foreign passport does not in itself cause loss of Australian citizenship.

However, all Australian citizens are required to use an Australian passport when entering and leaving Australia[citation needed]. This provision is intended to prevent immigration-related delays while a traveller's status is confirmed, as an Australian citizen cannot be granted a visa to enter Australia.[111][112] However, Australian citizens have never been prosecuted simply for travelling on the "wrong" passport, provided all other immigration requirements are satisfied. Australians with compelling reasons can apply for an Australian Declaratory Visa for their foreign passport, allowing them to use it for travel to and from Australia.[113]

Holding dual nationality continues to be a bar to being elected to the Australian Parliament.[114] In the 2017 Australian parliamentary eligibility crisis, several members of Parliament were found to have been ineligible for election owing to their being dual citizens, and others are possibly ineligible.

New Zealand citizensEdit

New Zealanders were included in the definition of British subject in the 1948 Act and hence many New Zealanders resident in Australia on 26 January 1949 became entitled to acquire Australian citizenship. There was no bar to New Zealanders acquiring Australian citizenship as well as New Zealand citizenship under the equivalent New Zealand legislation, British Nationality and New Zealand Citizenship Act 1948 (NZ). Persons classified as British subjects were entitled to the same rights as Australian citizens, but were not classified as permanent residents. New Zealanders could become Australian citizens by registration or naturalisation, without a requirement to achieve permanent resident status, until February 2001. Effective 22 November 1984, the status of "British subject" was removed from Australian citizenship law,[115] and British subjects who had not acquired Australian citizenship were classified as "non-citizen permanent residents". New Zealand citizens arriving after February 2001 have been required to apply for and obtain Australian permanent resident status before becoming eligible for Australian citizenship.

Children born in Australia before 27 February 2001 to New Zealand parents have generally been Australian citizens by birth. However, those born between 20 August 1986 and 31 August 1994 did not acquire Australian citizenship by birth, which is due to a technicality in the 1986 legislation which limited the acquisition of Australian citizenship to children of Australian citizens and permanent residents,[80] which was not corrected until 1994. These restrictions do not apply to children of a person who was an Australian citizen or permanent resident at the time of birth. In addition, a child born in Australia to two parents who are New Zealand citizens by descent is entitled to Australian citizenship. This is because under New Zealand nationality law, New Zealand citizens by descent cannot pass on New Zealand citizenship by descent, therefore rendering the child otherwise stateless. Special rules apply to cases in which the New Zealand parent is a diplomat, official guest, a visiting member of the armed forces, or has entered Australia on the passport of another country.

Children born in Australia to New Zealand parents automatically acquire Australian citizenship on their 10th birthday, if ordinarily resident in Australia until age 10, if they had not already acquired Australian citizenship by birth or naturalisation.

Amendments to the Migration Act 1958 in 2014 by then-Immigration Minister Peter Dutton allowed for more aggressive deportation policies, causing large numbers of New Zealand-born Australians to be deported to their country of birth despite living in Australia for most of their lives, and a point of contention between Australia and New Zealand.[116][117]

Papua New GuineaEdit

Prior to 1975, what is now Papua New Guinea was divided into two legal entities under common Australian administration. The Territory of Papua was an external territory of Australia itself, while the Territory of New Guinea was never an Australian territory in a legal sense, but rather a Trust Territory under Australian administration.

As a result, those born or naturalised in Territory of Papua acquired Australian citizenship on the same basis as any other part of Australia. However, those of indigenous descent were not automatically entitled to reside in the rest of Australia, despite holding Australian citizenship. It was possible in some circumstances for such persons to apply for and be granted a right of residence in mainland Australia.

Persons connected with Territory of New Guinea were Australian protected persons rather than Australian citizens and for nationality purposes the territory was considered not to be part of Australia.

Papua New Guinea became independent on 16 September 1975. Australian citizens connected with the Territory of Papua lost Australian citizenship on that date if they became citizens of Papua New Guinea (PNG). PNG citizenship was generally conferred only on those born in PNG who had at least two grandparents of indigenous descent, and:

  • in the case of Papua, had not acquired a right of permanent residence in mainland Australia or the citizenship of any other country;
  • in the case of New Guinea, had not acquired Australian or any other citizenship.

Persons of non-indigenous descent who acquired Australian citizenship by connection with PNG before independence generally still retain it.

Australian citizenship by descent for persons born in PapuaEdit

Under the Australian Citizenship Act, only a person born outside Australia is eligible to apply for Australian citizenship by descent. This has caused an anomaly in that former Australian citizens born in the former Territory of Papua (not New Guinea) before independence, and who lost Australian citizenship on independence in 1975, are unable to recover it through this route even if they have a parent born in mainland Australia.

This has been the subject of litigation in the Administrative Appeals Tribunal and the Federal Court of Australia, which have ruled that the definition of Australia includes the former Territory of Papua prior to independence. This rules out the possibility of Australian citizenship by descent for a person born in Papua.

However, section 21(7) of the Australian Citizenship Act 2007 allows certain persons born before independence in Papua to be granted Australian citizenship, where such a person has a parent born in Australia (as currently defined).[118]

Pledge of commitmentEdit

The wording of the Oath of Allegiance taken by newly naturalising Australian citizens has changed over time. In 1973 the Oath's wording was:

I, A. B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfil my duties as an Australian citizen.

Australia, however, never required new citizens to formally renounce their former citizenship under the law of that country. An equivalent wording was available in the form of a non-religious Affirmation for those who preferred.

In 1986 the wording was changed to:

I swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfil my duties as an Australian citizen.

In 1994 the Oath was replaced with a Pledge of Commitment to Australia:

From this time forward, under God,
I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect, and
whose laws I will uphold and obey.

All new citizens have the choice of making the pledge with (Pledge 1) or without (Pledge 2) the words 'under God'.

Evidence of Australian citizenshipEdit

There are cases where citizens need to show documentary evidence of their citizenship.

Applying for a job in AustraliaEdit

Employers are required to check working rights when providing a job, so an Australian citizen needs to show evidence of their citizenship. According to the Department of Immigration and Border Protection this is either a valid Australian passport or simply a birth certificate.[119] Photo identity is also required.

Some employers, especially the government (e.g. NSW Police Force,[120] and Human Services Victoria[121]) have adopted more stringent requirements similar to the Passport requirement below.

Applying for social security benefitsEdit

Centrelink or Medicare may require proof of citizenship when applying for benefits under their programs especially the first time. Generally an Australian passport or a birth certificate along with photo identity will suffice,[122] or for newborns, a "Newborn Child Declaration" issued by the hospital.[123]

Applying for a passportEdit

According to the Australian Passport Office, the following documents normally constitute evidence of Australian citizenship:[124]

  • a valid Australian passport
  • an Australian passport that expired less than 3 years ago, was issued when over 16, and shows the correct current name, sex, date of birth and place of birth
  • an Australian passport issued on or after 1 January 2000, if born in Australia on or after 20 August 1986
  • a birth certificate issued by or on behalf of an Australian state or territory (only for those born before 20 August 1986),
  • a birth certificate issued by or on behalf of an Australian state or territory with evidence of a parent being an Australian citizen or permanent resident at the time of birth (only for those born on or after 20 August 1986) being:
    • one parent's full birth certificate, showing the parent was born in Australia before 20 August 1986, or
    • one parent's Australian passport issued on or after 20 August 1986 that was valid for at least two years at the time of birth, or
    • one parent's Australian citizenship certificate detailing their acquisition of citizenship before birth, or
    • according to other sources, one parent's full birth certificate, showing the parent was born in Australia on or after 20 August 1986, and one of their parent's full birth certificate, showing the applicant's grandparent was born in Australia before 20 August 1986 (etc.)[120]
  • a Certificate of Australian Citizenship (see below),
  • a Certificate of Australian Citizenship of an Adoption in accordance with the Hague Convention on Intercountry Adoption or bilateral arrangement
  • a Certificate of Evidence of Australian Citizenship,
  • an Australian naturalisation certificate (no longer issued),
  • extract of register of Australian Births Abroad (no longer maintained),
  • a certificate of Australian citizenship by descent extract document.

Photo identity is generally required when applying for a passport.

Certificate of Australian CitizenshipEdit

A Certificate of Australian Citizenship is recognised as an identity document and can be used as proof of citizenship. It is generally issued once only to naturalised citizens at a citizenship ceremony (unless adopted by a citizen). It is A4 in size, has the full name, and date of birth of the holder, has a number on the front and back, and is signed by the Minister for Immigration and Border Protection or responsible minister at the time of issuance, and is dated the date of the ceremony.

Certificate of Evidence of Australian CitizenshipEdit

Australian citizens who do not have a citizenship certificate, have lost their original certificate, or wish to have a single document proving their citizenship, may apply for a "Certificate of Evidence of Australian Citizenship". Children born overseas, with one parent born overseas, may apply for an "Australian citizenship by descent extract document".[125]

Children naturalised as part of a parent's application for Australian citizenship before 1 July 2002 did not receive individual citizenship certificates. Instead, their details were included on the reverse of their parent's certificate. Such children can be issued with individual Certificates of Evidence of Australian Citizenship.

Photo identityEdit

As citizenship documentation does not generally have a photo, in many cases separate photo identity is required to associate the citizenship documentation to the individual presenting. For this reason the Australian Passport provides a convenient document for proving both citizenship and photo identity in one document.

Australians and British nationalityEdit

When Australia created Australian citizenship on 26 January 1949, not all British subjects connected with Australia became Australian citizens on that date. The most notable exceptions were:

  • children born outside Australia to Australian fathers; and
  • women married to Australian men;

where the child or woman had not entered Australia with a permanent entry permit before 26 January 1949.

Under the terms of section 12(4) of the British Nationality Act 1948:

  • such persons acquired citizenship of the UK & Colonies (CUKC) on 26 January 1949 on the basis of being British subjects connected with Australia, if they did not have citizenship of, or connections with, another Commonwealth country or Ireland
  • where a person had connections with another Commonwealth country that had not introduced a citizenship law as of 26 January 1949, they acquired citizenship of the UK and Colonies on the date the other country introduced a citizenship law if they did not become a citizen of that country at the time, if they had not acquired Australian citizenship by that point.
  • A complication arises if the person had a connection with India or Pakistan and such a person may have remained a British subject without citizenship if he did not acquire Indian or Pakistani citizenship, or the citizenship of any other Commonwealth country or Ireland.

Persons acquiring CUKC would have retained it upon a later acquisition of Australian citizenship. However they would only be British citizens today if they had obtained a 'right of abode' in the UK under the terms of the Immigration Act 1971, such as by having a UK-born grandparent. Otherwise they would be British Overseas citizens.

British subjects without citizenship would have retained that status only if they did not acquire a Commonwealth nationality (or Irish citizenship) before 1983, or any citizenship from 1983 or later.

British Overseas citizens and British subjects may register as British citizens if they have no other nationality (and have not lost another nationality since 4 July 2002), but otherwise do not have an automatic right to live in the United Kingdom.

Commonwealth citizenshipEdit

Under United Kingdom law, Australians are Commonwealth citizens and entitled to certain rights in the UK:

  • access to the UK youth mobility visa (working holiday visa) if between 18 and 30. (These are only available to citizens of Australia, Canada and New Zealand.)
  • for those with a UK-born grandparent, access to UK Ancestry Entry Clearance
  • for those born before 1983 who have a UK-born mother or are women who were married before 1 January 1983 to a man with the right of abode in the UK, the right of abode (those born before 1983, whether Commonwealth citizens or not, with a UK-born father are generally British citizens by descent)
  • for those living in the UK, the right to vote and stand for public office there.

Similar rights accrue in some other Commonwealth jurisdictions.

New Zealand residencyEdit

Under the Trans-Tasman Travel Arrangement, Australian citizens and permanent residents are automatically granted a New Zealand residence class visa on arrival in New Zealand,[126] provided they:

  • Present a valid Australian passport, or a foreign passport with an Australian citizen declaratory visa.
  • Correctly complete a New Zealand Passenger Arrival Card.
  • Are of good character. Australian citizens who have ever been imprisoned for five years or more, been imprisoned in the past 10 years for one year or more, or have been deported or removed from any country, are not permitted to enter New Zealand.

The visa entitles Australian citizens and permanent residents to live, work and study in New Zealand indefinitely, and expires once the Australian citizen or permanent resident leaves New Zealand.

Citizenship, visas and travelEdit

Most non-citizens travelling to Australia must obtain a visa prior to travel. The only exceptions to this rule are members of the British royal family, who do not require a visa, and holders of both New Zealand citizenship and a New Zealand passport, who may apply for a Special Category Visa on arrival according to the Trans-Tasman Travel Arrangement.[127]

DefinitionsEdit

Australia means Australia together with its Territories

British subject means a person connected with a Commonwealth country (not just the United Kingdom). The phrase was used in Australian law until 30 April 1987. See British subject for a more general description of the use of the term.

See alsoEdit

ReferencesEdit

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BibliographyEdit

External linksEdit