Australian nationality law

Australian Citizenship Act 2007
Parliament of Australia
Date of Royal Assent 15 March 2007
Date commenced 1 July 2007
Status: Current legislation

Australian nationality law determines who is and who is not an Australian citizen. The status of Australian nationality or Australian citizenship was created by the Nationality and Citizenship Act 1948 (in 1973 renamed the Australian Citizenship Act 1948) which came into force on 26 January 1949. The 1948 Act was amended many times, notably in 1973, 1984, 1986 and 2002. The Australian Citizenship Act 2007 replaced the 1948 Act, commencing 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.

Australian citizenship law is administered by the Department of Immigration and Border Protection 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 Department of Foreign Affairs and Trade.

In Australia, the terms "nationality" and "citizenship" can be used interchangeably, but the term "citizenship" (or citizen) is more commonly used, while "nationality" is more commonly used on official documents and forms. A person may acquire citizenship automatically, "by operation of law", or by application after a period of residence in Australia. The process of acquiring citizenship by application is referred to as "naturalisation".

History of Australian citizenship

Australia N series ePassport information page

Until the passing in Australia of the Nationality Act 1920, Australia's nationality law, like that of other Commonwealth countries, was governed by the English common law concept of a British subject. (See also British nationality law.) The idea that there was such a thing as an Australian nationality as distinct from a British one was considered by the High Court of Australia in 1906 to be a "novel idea" to which it was "not disposed to give any countenance".[1] The British Nationality and Status of Aliens Act 1914 codified the common law rules. Australia followed with the passing of the Nationality Act 1920, which codified the concept of a British subject in Australia, effective from 1 January 1921. In general, the principles of the 1920 Act and subsequent amendments followed United Kingdom legislation, although there were some differences that could lead to a person being a British subject solely under Australian law.

The 1948 Commonwealth Heads of Government Meeting decided to make major changes in nationality laws throughout the Commonwealth, following Canada's decision to enact its Canadian citizenship law, effective January 1, 1947. Until then all Commonwealth countries, with the exception of the Irish Free State, had a single nationality status of British subject. It was decided at that conference that the United Kingdom and the self-governing dominions would each adopt a separate national citizenship, while retaining the common status of British subject. The Nationality and Citizenship Act 1948, which came into force on 26 January 1949, gave effect to that arrangement and created the concept of Australian nationality while continuing to be British subjects. However, the status of other (non-Australian) British subjects in Australia differed from the status of those who were not British subjects. Aborigines became Australian citizens under the 1948 Act in the same way as other Australians (though Aborigines were not counted in the Australian population until after a 1967 referendum). The same applied to Torres Strait Islanders and the indigenous population of the Territory of Papua (then a part of Australia).

The relationship between Australian citizenship and a citizen 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.[2]

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.

Nationality law changes

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

Rights and duties

Rights

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

Duties

The following duties are expected of Australian citizens:[6]

Acquisition of Australian citizenship - 26 January 1949

A distinct Australian nationality or citizenship was created on 26 January 1949. Persons who had been British subjects on that date could apply to acquire the new Australian citizenship if they were:

Australian citizens continued to be British subjects. A person could acquire Australian citizenship under the law even if he or she also held or obtained the nationality of another Commonwealth country, or if they also held foreign citizenship.

The Australian Citizenship (Amendment) Act 1984 removed the status of "British subject" from Australian citizenship law, with effect from 22 November 1984.

Citizenship by birth

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 that the children of foreign ambassadors, who were immune from local jurisdiction and from duties of allegiance, who took the nationality of their fathers.) Such persons need to apply for Australian citizenship, otherwise since 20 August 1986 they have the status of permanent resident. A person born in Australia between 26 January 1949 and 19 August 1986, automatically acquired Australian citizenship. 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.[7] 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.[8]

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.

Children born in Australia whose parents are stateless and not entitled to any other country's citizenship may in some circumstances be granted Australian citizenship.

Citizenship by descent

Persons born overseas to an Australian citizen parent have been able to acquire Australian citizenship in the following ways:

Australian citizenship by descent is not conferred at birth, and a child born outside Australia to an Australian parent must apply for citizenship.[9] If aged 18 or over, an applicant for Australian citizenship by descent must be of good character.

Children of former Australian citizens

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.

There is no age limit and those over 18 are eligible to apply.

Citizenship by naturalisation

"Naturalisation is the process by which one undertakes allegiance to a new sovereign and, often enough, sheds allegiance to another sovereign."[10] 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. 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.

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 can apply for citizenship in their own right. The common residence requirement of three years was reduced to two years from 22 November 1984. From that date, the status of British subject was removed from Australian citizenship law; the status having 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 naturalization. The "lawfully resident" test could be satisfied by a student visa or tourist visa or 457 visa, but the applicant must:

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:

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 naturalisation made before 1 July 2010 — they must:

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

From 1 October 2007, most applicants for naturalisation 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 citizenship

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 this date onwards, the scope to lose Australian citizenship is more limited.

Adult Australian citizens acquiring another citizenship

Between 26 January 1949 and 3 April 2002, an adult Australian generally lost Australian citizenship automatically (section 17 of the Australian Citizenship Act 1948) upon acquisition of another citizenship by a 'voluntary and formal act', with the following rules:

Section 17 of the 1948 Act was repealed with effect from 4 April 2002.[12] 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 - children

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

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 citizens

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 Burma

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

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 Australian Parliament passed the Nationality and Citizenship (Burmese) Act 1950 which removed the discrepancy between Australian and British law on the status of persons connected with Burma.

As a result of the Act, 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 were given 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 country

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. Since 1 July 2007 it has been re-enacted as section 35 of the 2007 Act.

Deprivation of Australian citizenship

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

Ex-citizen visa

A person who ceases to be an Australian citizen while physically inside the migration zone of Australia automatically receives an ex-citizen visa under section 35 of the Migration Act 1958

Resumption of Australian citizenship

Since 1 July 2007, a former Australian citizens can resume Australian citizenship[13] if:

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 adoption

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

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 requirements

Visa requirements for Australian citizens

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 2014 Visa Restrictions Index, Australian passport holders can visit 174 countries [14]

Dual citizenship

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

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

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. 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.[15][16] However, Australian citizens have never been prosecuted simply for travelling on the "wrong" passport, provided all other immigration requirements are satisfied.

New Zealand citizens

New Zealanders were included in the definition of British subject in the 1948 Act and hence many New Zealanders resident in Australia acquired Australian citizenship in 1949 when this was introduced. There was no bar on New Zealanders automatically acquiring Australian citizenship as well as New Zealand citizenship under the equivalent New Zealand legislation (The British Nationality and New Zealand Citizenship Act 1948 (NZ)).

The facilities to become an Australian citizen by registration or naturalisation have been open to New Zealanders in Australia since 1949. However, most New Zealand citizens arriving since February 2001 are required to apply for and obtain Australian permanent resident status before becoming eligible for Australian citizenship.

Children born to New Zealanders in Australia have generally been Australian citizens by birth. The exceptions are:

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

Papua New Guinea

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:

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 Papua

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).

Pledge of commitment

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 citizenship

The following documents normally constitute evidence of Australian citizenship:

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 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.

Australians and British nationality

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:

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:

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 citizenship

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

Similar rights accrue in other Commonwealth jurisdictions.

New Zealand residency

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

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

Citizenship, visas and travel

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 visas to enter Australia, and holders of New Zealand passports and citizenships, who may apply for Special Category Visas on arrival according to the Trans-Tasman Travel Arrangement.[17]

Definitions

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 also

References

  1. ↑ "Attorney-General(Cth) v Ah Sheung (1906) 4 CLR 949". Austlii.edu.au. 29 June 1906. Retrieved 2010-08-13.
  2. ↑ "Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178". Austlii.edu.au. Retrieved 2010-08-13.
  3. ↑ "Nationality and Citizenship Act.". Advocate (Melbourne, Vic. : 1868 - 1954) (Melbourne, Vic.: National Library of Australia). 15 September 1949. p. 10. Retrieved 12 April 2015.
  4. ↑ Australian Citizenship – Australian Citizenship pledge
  5. ↑ "Recruitment Centre". Defence Jobs. Archived from the original on 3 August 2010. Retrieved 2010-08-13.
  6. ↑ "Australian Citizenship – Why should I become a citizen?". Citizenship.gov.au. 29 July 2010. Archived from the original on 11 August 2010. Retrieved 2010-08-13.
  7. ↑ Australian Citizenship (Amendment) Act 1986.
  8. ↑ H v Minister for Immigration and Citizenship [2010] FCAFC 119 (15 September 2010)
  9. ↑ Registration as an Australian citizen by descent (pdf format)
  10. ↑ "Singh v Commonwealth [2004] HCA 43". AustLII. Retrieved 2015-08-05. External link in |publisher= (help)
  11. ↑ "Changes in the Australian Citizenship Act 2007". Retrieved 2013-10-16.
  12. ↑ http://www.comlaw.gov.au/Details/C2004A00942
  13. ↑ Resumption of Australian citizenship (pdf format)
  14. ↑ "International Visa Restrictions" (PDF). Henley and partners. August 2013. Retrieved August 2013.
  15. ↑ http://www.citizenship.gov.au/current/travel/
  16. ↑ http://www.smartraveller.gov.au/tips/dual-nationals.html
  17. ↑ "Australia's Visitor and Temporary Entry Provisions" (PDF). Joint Standing Committee on Migration, Parliament of Australia. 27 September 1999. Archived (PDF) from the original on 29 June 2011. Retrieved 20 July 2011.
  18. ↑

External links

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