|Australian Citizenship Act 2007|
|Parliament of Australia|
|Citation||No. 20 of 2007|
|Enacted by||House of Representatives|
|Enacted||1 March 2007 (with amendments from the Senate)|
|Enacted||26 February 2007|
|Royal assent||15 March 2007|
|Commenced||1 July 2007|
|Bill introduced in the House of Representatives||Australian Citizenship Bill 2005|
|Introduced by||John Cobb|
|First reading||9 November 2005|
|Second reading||31 October-28 November 2006|
|Third reading||28 November 2006|
|Bill introduced in the Senate||Australian Citizenship Bill 2006|
|Introduced by||Ian Campbell|
|First reading||30 November 2006|
|Second reading||7-26 February 2007|
|Third reading||26 February 2007|
|Australian Citizenship Act 1948|
Australian nationality law determines who is and who is not an Australian citizen.
The legal 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. 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. The 1948 Act was amended many times, notably in 1973, 1984, 1986 and 2002. It was replaced by the Australian Citizenship Act 2007, which commenced on 1 July 2007.
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.
In Australia, the terms "nationality" and "citizenship" can be used interchangeably, but the term "citizenship" (or "citizen") is more commonly used, while "nationality" is most often used in official documents and forms. In general, a person may acquire citizenship automatically ("by operation of law") through birth in Australia or through Australian descent, or by application after a period of residence in Australia. The process of acquiring citizenship by application is referred to as "naturalisation".
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 legal 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". That was as a matter of law, but in 1913 and 1930 Australian journalists considered that there were such things as Australian nationality and citizenship.
The British Nationality and Status of Aliens Act 1914, an act of the Westminster parliament, codified the common law rules. Australia followed this with the enacting of the Nationality Act 1920, which came into effect on 1 January 1921 and codified the concept of a British subject in Australia. 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 from 1 January 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 Australian Nationality and Citizenship Act 1948, which came into effect on 26 January 1949, gave effect to that arrangement and created the concept of Australian nationality, while those holding it continued 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 (although 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 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.
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.
The principal milestones in the development of Australian nationality law have been:
Australian citizens enjoy the following rights (subject to certain exceptions):
The following duties are expected of Australian citizens:
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:
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.
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".
The Australian Citizenship (Amendment) Act 1984 removed the status of "British subject" from Australian citizenship law, with effect from 22 November 1984, 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.
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.
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. 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.
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 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. In December 2014, he and his family were given a temporary protection visa which allowed them to be released from immigration detention.
A person born outside Australia to an Australian citizen parent can 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. If aged 18 or over, an applicant for Australian citizenship by descent must be of good character.
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.
"Naturalisation is the process by which one undertakes allegiance to a new sovereign and, often enough, sheds allegiance to another sovereign." 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".
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. (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. 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:
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 conferral 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 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.
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.
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', with the following rules:
Section 17 of the 1948 Citizenship Act was repealed with effect from 4 April 2002. 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.
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.
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.
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 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.
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.
A naturalised Australian citizen may be deprived of Australian citizenship under section 34 of the 2007 Act in the following circumstances:
Any Australian citizen may also be deprived of Australian citizenship by virtue of the same section in these circumstances:
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. 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. 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.
Since 1 July 2007, a former Australian citizen can resume Australian citizenship 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.
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.
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.
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:
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. 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.
Holding dual nationality continues to be a bar to being elected to the Australian Parliament. 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 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, 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, 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.
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.
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).
The wording of the Oath of Allegiance taken by newly naturalising Australian citizens has changed over time. In 1973 the Oath's wording was:
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:
In 1994 the Oath was replaced with a Pledge of Commitment to Australia:
All new citizens have the choice of making the pledge with (Pledge 1) or without (Pledge 2) the words 'under God'.
There are cases where citizens need to show documentary evidence of their citizenship.
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.Photo identity is also required.
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, or for newborns, a "Newborn Child Declaration" issued by the hospital.
Photo identity is generally required when applying for a passport.
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.
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".
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.
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.
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.
Similar rights accrue in some other Commonwealth jurisdictions.
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.
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.
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.
Residence requirement: We consider the amount of time you have lived in Australia in the last 4 years.