Australian nationality law
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Australian citizenship was created on 26 January 1949 by the Nationality and Citizenship Act 1948 (later renamed the Australian Citizenship Act 1948). Prior to this date Australians were British subjects and Australia shared a common nationality code with the United Kingdom and the other Commonwealth countries at the time (see also British nationality law).
The 1948 legislation has been amended many times, notably in 1973, 1984, 1986 and 2002.
[edit] Rights and Responsibilities of Australian Citizens
Australian citizens enjoy the following rights (subject to certain exceptions):
- entitlement to an Australian passport and to Australian consular protection overseas
- immunity from deportation
- entitlement to vote and stand for public office (dual citizens cannot stand for office in the Federal Parliament unless they have taken all reasonable steps to renounce their foreign citizenship. Most states do allow dual citizens to stand for State Parliaments)
- entitlement to leave Australia and return at any time without requiring a resident return visa
- entitlement to register overseas born children as Australian citizens by descent (subject to some additional criteria)
- entitlement to seek employment for the Federal (Commonwealth) Government, where citizenship is normally required
The following responsibilities are expected of Australian citizens:
- obey the law
- enroll to vote, and vote at all elections (without a reasonable excuse such as a religious objection or illness on polling day)
- serve on a jury, if called upon
- defend Australia, should the need arise
[edit] Acquisition of Australian Citizenship - 26 January 1949
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Ireland Act 1949 |
Australian citizenship was acquired on this date by British subjects falling into the following categories:
- those born or naturalised in Australia
- those born in New Guinea
- those born overseas to an Australian father provided they had entered Australia with permanent entry permits on or before 26 January 1949
- those 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
It was possible to acquire Australian citizenship under these provisions even if one also obtained the nationality of another Commonwealth country created at the same time, or if one also had a foreign citizenship.
[edit] Acquisition of Australian Citizenship - Birth in Australia
Between 26 January 1949 and 19 August 1986 any person born in Australia acquired Australian citizenship by birth automatically. The only exceptions concerned children born to diplomats.
From 20 August 1986 a person born in Australia only acquired Australian citizenship by birth if at least one parent was an Australian citizen or permanent resident.
A child born in Australia (and who is not otherwise an Australian citizen) who lives in Australia until age 10 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 who are stateless and not entitled to any other country's citizenship may in some circumstances be registered as Australian citizens.
Citizenship by Birth in Australia (pdf format)
[edit] Registration and Naturalisation as an Australian Citizen
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 naturalisation which had stricter requirements.
From 1 December 1973 the preferential treatment for British subjects was ended by the Australian Citizenship Act 1973. After that date, all migrants had to meet the same criteria for naturalisation as an Australian citizen (grant of citizenship). A common residence requirement of 3 years was set. This was reduced to 2 years on 22 November 1984.
As of July 2005, the requirements for grant of Australian citizenship (in force since 1984) are that the applicant:
- holds permanent resident status
- has been present in Australia as a permanent resident for a total of 2 years in the 5 years before application, including a total of 12 months in the 2 years before application
- understands of the responsibilities and privileges of Australian citizenship (except for applicants aged 60 or over)
- is able to speak and understand basic English (except for applicants aged 50 or over)
- understands the nature of the application
- intends to reside in Australia, or maintain a close and continuing association with Australia
There are some exceptions to the standard requirements, including:
- children aged under 18 of former Australian citizens
- Australian Defence Forces veterans
- former Australian citizens and those born in Australia
- children adopted by Australian citizens
Children aged under 16 can be included in the application of a responsible parent. The standard residence requirements do not apply to such children. Children aged 16 and 17 may apply on the same basis as adults but normally require the consent of a parent.
All applicants aged 16 or over must attend a citizenship ceremony and make a Pledge of Commitment as a citizen of Australia before they can become Australian citizens.
How to Apply for Grant of Australian Citizenship (pdf format)
Becoming a Citizen - What You Should Know (pdf format)
[edit] Australian Citizenship by Descent
Persons born overseas to an Australian citizen parent have been able to 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)
- Those born between 26 January 1949 and 15 January 1974 may be registered as Australian citizens by descent provided their Australian parent retained Australian citizenship up to the point of the application (or was an Australian citizen at death)
- Any person aged under 25 may be registered as an Australian citizen by descent provided they had an Australian parent at the time of birth; and
- if the Australian parent is also an Australian citizen by descent, that parent had lived legally in Australia for a total of 2 years, or the person has no other nationality; and
- if aged 18 or over, the person is of good character
Australian citizenship by descent is never conferred at birth. While it will be granted upon application if the requirements are met, no child born outside Australia to an Australian parent acquires citizenship until this step is taken.
Registration as an Australian citizen by descent (pdf format)
[edit] 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.
[edit] Adult Australian Citizens Acquiring Another Citizenship
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'.
- 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 (for example, Canada, New Zealand or the United Kingdom).
- it was irrelevant whether the acquisition of another citizenship was reported to the Australian authorities.
The legislation which stripped adult Australians of citizenship upon naturalisation in another country (section 17 of the Australian Citizenship Act) was repealed with effect from 4 April 2002. Although it was not retroactive, former Australian citizens may be able to apply for resumption of Australian citizenship.
[edit] Loss of Australian 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:
- 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.
[edit] Naturalised Australian Citizens
Between 26 January 1949 and 8 October 1958 (when the provision was repealed) naturalised Australian citizens lost Australian citizenship if resident outside Australia and New Guinea for a continuous period of 7 years without registering annually a declaration of intent to retain Australian citizenship. This occurred under the now-repealed section 20 of the Australian Citizenship Act. Naturalised citizens who left Australia after 8 October 1951 are not affected by these provisions.
It is possible under some circumstances for such former citizens to resume Australian citizenship.
Australian Citizens who Acquire Another Citizenship (pdf format)
[edit] 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:
- 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 only lost British subject status under Australian law 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.
[edit] Service in the Armed Forces of an Enemy Country
Section 19 of the 1948 Act states: "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.
[edit] Deprivation of Australian Citizenship
A naturalised Australian citizen may be deprived of Australian citizenship under section 21 of the 1948 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.
[edit] 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
- This visa ceases to have effect as soon as the person leaves Australia. Should the former citizen wish to return as a resident, a Resident Return Visa (pdf file) or other permanent visa is required.
- An ex-citizen visa may be cancelled on character grounds and the former citizen removed from Australia. This is likely where citizenship has been revoked under section 21 of the Act.
[edit] Resumption of Australian Citizenship
Former Australian citizens may be able to resume Australian citizenship if they fulfil certain criteria. Those who lost Australian citizenship upon naturalisation in another country (by virtue of section 17 of the 1948 Act) may be able to resume citizenship if the person:
- has lived in Australia legally for a total of 2 years; and
- is either living in Australia and plans to remain, or intends to return within 3 years; and
- has maintained a 'close and continuing' association with Australia; and
- did not know they would lose Australian citizenship by acquiring another; or
- would have suffered 'significant hardship or detriment' by not acquiring the other country's citizenship
These provisions, contained in section 23AA of the Australian Citizenship Act 1948 also apply to those former Australian citizens who renounced Australian citizenship in order to acquire (but not retain) that citizenship.
- Children who lost Australian citizenship at the same time as the parent may be included in a section 23AA resumption application if they are still aged under 18. Otherwise they must apply to resume citizenship under section 23B of the Act.
- Former Australian citizens who renounced Australian citizenship to retain another country's citizenship may apply for resumption of Australian citizenship if aged under 25 and meeting similar criteria to the above. This facility (section 23AB of the Act) has been in place since 1 July 2002.
- Those who lost Australian citizenship as children may resume Australian citizenship by declaration lodged before age 19, or later if the Minister accepts 'special circumstances' under section 23B of the Act. In practise this is interpreted quite narrowly and it is difficult for former Australian citizens who lost citizenship as children to recover it if aged 19 or over.
- Similar provisions to section 23B of the Act are in place for former (naturalised) Australian citizens who lost their citizenship under section 20 of the Act (residence outside Australia) before 1958.
- 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 if still aged under 18. There is no requirement for the parent to resume citizenship. This policy has been in place since 13 October 2003. Details
Resumption of Australian citizenship (pdf format)
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 grant of Australian citizenship.
[edit] Australian Citizenship by Adoption
Australian citizenship is acquired automatically on adoption in the following circumstances:
- the adoption takes place in Australia on or after 22 November 1984; and
- 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 virtue of adoption to hold an adoption visa, or other permanent visa. Details. However it does not appear that there is any requirement for the child to be physically resident in Australia.
[edit] 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:
- 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 (eg the U.S. or Canada) as well as Australian citizenship by descent
Holding a foreign passport did not in itself cause loss of Australian citizenship.
[edit] 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 facilities to become an Australian citizen by registration or naturalisation have been open to New Zealanders in Australia since 1949. However, some 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 born between 20 August 1986 and 31 August 1994. This is due to a technicality in the 1986 legislation which limited the acquisition of Australian citizenship to children of Australian citizens and permanent residents, which was not corrected until 1994.
- those born on or after 27 February 2001 where neither parent is an 'eligible New Zealand citizen'
- neither of the above restrictions affect children where one parent was an Australian citizen or permanent resident at the time of birth
- special rules apply to cases where the New Zealand parent is a diplomat, official guest, visiting forces personnel, or has entered Australia on the passport of another country.
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.
Changes to immigration and social security requirements for New Zealand citizens from 26 February 2001
[edit] 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:
- 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.
[edit] 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 legislation in the Administrative Appeals Tribunal and the Federal Court of Australia, who have ruled that the definition of Australia includes the former Territory of Papua prior to independence. However, the Australian Government has announced provisions in the Australian Citizenship Bill 2005 which will allow such persons to apply for Australian citizenship by descent if otherwise eligible.
[edit] Oath of Allegiance
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 or without the words 'under God'.
[edit] Evidence of Australian Citizenship
The following documents normally constitute evidence of Australian citizenship:
- a valid Australian passport
- an Australian birth certificate (only for those born before 20 August 1986)
- an Australian naturalisation certificate
- a certificate of Australian citizenship by descent
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.
Application for a Certificate of Evidence of Australian citizenship (pdf format)
[edit] Proposed Amendments
On 9 November 2005, the Minister for Citizenship and Multicultural Affairs, John Cobb, introduced new legislation to Parliament to update the Australian Citizenship Act 1948. Specific amendments include:
- removing the restrictive criteria on resumption of Australian citizenship and Australian citizenship by descent; and
- allowing grant of citizenship to adult children of former Australian citizens (only where the parent lost Australian citizenship under section 17 of the 1948 Act prior to 2002); and
- allowing grant of Australian citizenship to people born overseas before 26 January 1949 with an Australian parent;
- streamlining the criteria for temporary residence in Australia to be allowed as a credit against the residence requirement for grant of Australian citizenship
- increasing the residence requirement for grant of Australian citizenship from two years to three.
Introduction of Australian Citizenship Bills to Parliament
This is further to an announcement made on 7 July 2004 by the then Minister for Citizenship and Multicultural Affairs, Gary Hardgrave Details. The proposal to increase the residence requirement for citizenship to 3 years was announced on 8 September 2005 Details.
This will come into force as soon as legislation is passed by the Australian Parliament and a commencement order made. The Government has stated the legislation is unlikely to take effect before 1 July 2006.
[edit] 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
- 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.
[edit] Commonwealth Citizenship
Under United Kingdom law, Australians are Commonwealth citizens and hence are entitled to certain rights in the UK:
- access to the UK Working Holiday visa scheme
- for those with a UK born grandparent, access to the UK Ancestry Entry Clearance
- for those born before 1983 who meet the requirements, Right of Abode in the UK
- the right to vote and stand for public office in the UK
Australian citizens also have the freedom to live and work in New Zealand under the Trans-Tasman Travel Arrangement.
[edit] The Queen of Australia
In 1995 the Library of the Commonwealth Parliament has researched[1] the status of the Queen with regard to Australian citizenship.
They concluded that:
- The Queen does not fall within the categories of citizenship by birth, adoption, descent, or grant listed in the Australian Citizenship Act 1948
- All Australian citizens are subjects of the Queen. The Queen cannot be her own subject, as one only exists in relation to the other, and the two cannot as such be combined.
It appears that the Queen is not therefore an Australian citizen. The Queen, however, is Queen of Australia, and Head of State of Australia.
The Queen, by virtue of her status, does not require a visa to enter Australia. The Queen does not hold an Australian or any other passport. Australian passports are issued in the name of the Queen, asking foreign governments to grant the passport holders free passage, assistance, and protection. The first page of an Australian passport carries the following message:
- The Governor-General of the Commonwealth of Australia, being the representative in Australia of Her Majesty Queen Elizabeth the Second, requests all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need.
Since the Queen can personally ask foreign governments for free passage, assistance and protection, she does not carry any passport.[2]
When other members of the Royal Family enter Australian they are automatically granted special purpose visas by section 33 of the Migration Act 1958.
[edit] Definitions
Australia means Australia together with its Territories
- Norfolk Island is included, despite having its own immigration laws
- Christmas Island is included from 1 October 1958 and the Cocos (Keeling) Islands from 23 November 1955. These are former United Kingdom territories transferred to Australia.
- Papua ceased to be an Australian territory on 16 September 1975.
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.
[edit] See also
- Immigration to Australia
- White Australia policy
- History of British nationality law
- Special Category Visa
- E-3 visa
- UK Ancestry Entry Clearance
