Citizenship

Based on the contribution of Michael Clothier for The Law Handbook 2016 published by Fitzroy Legal Service, as amended by KevinKardigimar and current to 1 May 2016

The Australian Citizenship Act 1948 (Cth) was replaced on 1 July 2007 by the Australian Citizenship Act 2007 (Cth) ('ACA'). The new Act and Migration Regulations provide that Australian citizenship is acquired:

1. by reason of birth in Australia;
2. by descent where children are born outside Australia of Australian parents; or
3. by grant.

Separate Australian citizenship dates only came into effect of the previous Australian Citizenship Act 1948 (Cth) on 26 January 1949. Before that date the nationality of Australians was simply described as 'British subject'. If non-British subjects wanted the right to vote, they had to become 'naturalised' and this turned them into British subjects.

Since 1973 and until 1984, a citizen of a Commonwealth country (including Australia) had the status of a British subject. This status was removed by the Australian Citizenship (Amendment) Act 1984 (Cth).

Generally, enrolment on the Commonwealth electoral roll and voting at elections and referendums is compulsory for Australian citizens over the age of 18 years. This compulsory enrolment and voting provision also applies to persons over 18 years of age who have lived in Australia for at least six months and are citizens of the Commonwealth countries listed in section 7 of the ACA.

Citizenship by birth

Section 12 of the ACA states that every person born in Australia is an Australian citizen with the exception of:

1. Persons born on or after 20 August 1986 where both parents of the person were not Australian citizens or permanent residents of Australia at the time of the person's birth.

This requirement largely prevents the children of illegal entrants from becoming Australian citizens by the mere fact of their birth in this country. However, one exception is where a person born to illegal immigrants has actually lived (been ordinarily resident) in Australia for a period of 10 years from the date of their birth. On their tenth birthday, they automatically become an Australian citizen. The children of illegal entrants will usually have the same citizenship as one or both of their parents. If they cannot acquire a citizenship through their parents, or through 10 years of residence, the minister will still grant Australian citizenship but only if such a grant would be needed to prevent them from being stateless (s 21(8) ACA).

2. Equally, a person is an Australian citizen if the person is found abandoned in Australia as a child, unless the contrary is proved (s 14 ACA).

Children born to parents or a parent holding a temporary entry permit to legally reside in Australia for a limited period of time are deemed to be included in the parents' temporary entry permit. If one parent holds a longer temporary entry permit than the other parent, their child is deemed to be included in the longer permit.

Citizenship by adoption

A person who is legally adopted in Australia under a law in force in a state or territory of Australia by an Australian citizen, or by two persons at least one of whom is an Australian citizen, shall automatically become an Australian citizen if, at the time of their adoption, the adopted person is present in Australia as a permanent resident (s 13 ACA).

Citizenship by incorporation of territory

A person will be an Australian citizen if any territory becomes a part of Australia and the person is included in a class of persons specified in a determination made by the minister (s 15 ACA).

Citizenship by descent

In certain circumstances a person born outside Australia may become an Australian citizen through their parents' status as Australian citizens. At the time of the birth at least one of the parents must be an Australian citizen. It is, in effect, citizenship through inheritance. Such citizenship is not automatic, like birth in Australia.

A person born outside Australia after 26 January 1949 is eligible for citizenship by descent if, at the time of their birth, at least one parent was an Australian citizen. If the Australian citizen was themselves an Australian citizen by descent, the parent must have been lawfully present in Australia for a total of at least two years before the application is made (s 15A ACA).

Citizenship by grant

Non-citizen children born outside Australia and adopted outside Australia by one or more Australian citizen parent may apply for a grant in accordance with the Hague Convention on Intercountry Adoption (s 19B ACA).

Citizens of other countries who are settled permanently in Australia may apply for and receive Australian citizenship by the process of grant.

To be granted citizenship, an applicant has to satisfy a number of statutory requirements. They should:

1. be a permanent resident who was granted permanent residence after 1 July 2007;
2. be 18 years or over;
3. understand the nature of the application;
4. have been lawfully present in Australia for at least four years including at least 12 months as a permanent resident. Absences of up to 12 months are allowed during the four years, including no more than three months absence during the 12 months immediately before applying. However, if a person was born in Australia or is a former Australian citizen, they need only be present in Australia as a permanent resident for 12 months;
5. be of good character;
6. possess a basic knowledge of the English language;
7. have an adequate knowledge of the responsibilities and privileges of Australian citizenship (and in some circumstances, pass a test (see below); and
8. if granted Australian citizenship, be likely to live or continue to live in Australia or to maintain a close and continuing association with Australia.

NOTE

Section 5B of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) states that applicants who were granted permanent residence before 1 July 2007 and who apply before 1 July 2010, are subject to the old residence rules, requiring a total of two years lawful presence in Australia as a permanent resident out of the five years immediately before application, and at least one year in the previous two years immediately before application.

Citizenship test

Under the Australian Citizenship Amendment (Citizenship Testing) Act 2007 (Cth), the government put in place a citizenship test for most applicants (from 1 October 2007). To get an overview of the test and a free copy of the test resource book (called Australian Citizenship: Our Common Bond), go to www.citizenship.gov.au.

People under the age of 18 years or over the age of 60 years are exempt from taking the test, as are those with a permanent physical or mental incapacity that means they are not capable of understanding the nature of their application. The test:

• is in English;
• is computer based;
• consists of 20 multiple-choice questions (these include three mandatory questions) that are based on the responsibilities and privileges of Australian citizenship;
• has a pass mark of 60%, including correctly answering all three mandatory questions.

There is not a separate English language test. Your English language skills will be measured by your ability to pass the test, which is available in English only. The information about Australia on which the questions are based is widely available in hardcopy, electronic and audiovisual format. Practice tests are available to help people prepare.

Exemptions to part or all of the residence requirements

The above requirements have to be met by most applicants. However, in certain circumstances specific requirements do not have to be satisfied, and the minister can waive certain requirements. Permanent physical or mental incapacity, the age of the applicant, service in the armed forces of Australia and hardship caused by a refusal to grant citizenship are factors that may result in some requirements being waived.

Spouses or widow/widowers or interdependent (same-sex) partners of Australian citizens who are permanent residents, can have periods of time spent overseas as a permanent resident counted towards the required periods of lawful residence in Australia, if the minister is satisfied that the person had a close and continuing association with Australia during those periods (s 22(11) ACA).

Time spent in prison or confinement in a psychiatric institution affects the length of residence requirements (s 22(1C), (5A)).

An applicant who cannot meet all requirements should enquire at DIBP regarding exemptions, see How to apply for citizenship.

Citizenship pledge

A pledge of commitment as a citizen of the Commonwealth of Australia must be made by virtually all applicants over 16 years. It must be made to the minister or a person authorised by the minister (s 27 ACA; sch 1). The pledge reads:

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 law I will uphold and obey.

* Note: The words 'under God' are optional.

Rights

People acquiring Australian citizenship are entitled to the same rights as those born in Australia. These include:

1. the right to apply for appointment to any public office or to stand for election as a member of parliament (although holding joint nationality can create serious predicament in the federal parliament);
2. the right to vote at state and Commonwealth elections; and
3. the right to apply for an Australian passport and to leave and re-enter Australia without needing an authority to return.

Renunciation of citizenship

Renunciation of Australian citizenship is possible in limited circumstances. An Australian citizen who is 18 years or older and is a national or citizen of a foreign country may lodge with the minister a declaration on a prescribed form renouncing Australian citizenship. At the time the application is 'approved' by the minister, the person ceases to be an Australian citizen (s 33(1), (8) ACA).

If the person would become stateless upon renunciation, or if the person is a citizen of a country with whom Australia is at war, the minister must not grant approval (s 33(4), (5), (6), (7)).

An Australian citizen who was born or is ordinarily resident in a foreign country, and cannot become a national or citizen of that country while remaining an Australian citizen, may also renounce citizenship. The minister has a general discretion not to register a declaration renouncing citizenship if it is considered not to be in the interests of Australia (s 33(3)).

Loss of citizenship by revocation

The minister has power to revoke the Australian citizenship of any person who received such citizenship by application and conferral and who, under section 34 of the ACA, has:

• been convicted of having made a false statement or concealed a material circumstance in connection with their application for citizenship; or
• obtained the approval to become an Australian citizen as a result of migration-related fraud; or
• whose approval was connected with the migration-related fraud of a third party,
• and the minister is satisfied that it is against the public interest for that person to continue to be an Australian citizen.

The minister may also exercise this power of deprivation against a person convicted of any offence and sentenced to at least 12 months imprisonment, provided the offence was committed before the grant of Australian citizenship. If the person is present in Australia a copy of the minister's order must be served on that person (s 34 ACA).

The ACA also provides that where the responsible parents or guardians of a child (i.e. someone aged under 18 years) cease to be Australian citizens, other than by their death, and the child has another citizenship, then the child ceases to be an Australian citizen (s 34).

Automatic cessation of citizenship

Australian citizens can now swear allegiance to another country and thereby acquire another citizenship by doing a 'formal act or thing' and not lose their Australian citizenship. However, an Australian 'dual national' who serves in the armed forces of a country at war with Australia ceases thereby to be an Australian citizen (s 36 ACA).

Resumption of citizenship

In some circumstances, a former citizen may resume citizenship that has been lost.

Citizenship appeal rights

An applicant has a right (under s 52 ACA) to have the Commonwealth Administrative Appeals Tribunal (AAT) review the minister's decision in a range of citizenship decisions, including where the minister:

1. refuses an application for citizenship;
2. refuses to approve the renunciation of Australian citizenship;
3. cancels an approval prior to the applicant taking the pledge; or
4. revokes a previous grant of citizenship.

How to apply for citizenship

The ACA makes no provision for immigrants, regardless of their nationality or length of residence in Australia, to acquire citizenship automatically. Accordingly an application must always be made.

Application forms may be obtained from DIBP. When the form has been completed and returned to DIBP the applicant is asked to attend an interview with a member of the staff.

Any documents showing present nationality and date and place of birth should be brought to the interview, together with the applicant's marriage certificate if married to an Australian citizen, birth certificate of spouse (if born here) or citizenship certificate (if naturalised).

Following approval of the application (which usually takes between three and six months from the date of the interview) the applicant will receive an invitation to attend a citizenship ceremony. The ceremonies are usually held in local town halls or other civic buildings. Once the applicant has taken a pledge of commitment, a certificate of citizenship will be presented.