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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 (in general, birth in Australia automatically conferred British subject status)
- 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.
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)
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.
People who became permanent residents on or after 1 July 2007 must have been lawfully resident in Australia for 4 years immediately before applying for naturalisation. In addition, they must:
- have been in Australia for 12 months as a permanent resident
- have had absences from Australia of no more than 12 months, including no more than three months in the 12 months before applying [1]
- have not been unlawfully in Australia at any time in the 4 years preceding application
- understand the responsibilities and privileges of Australian citizenship (except for applicants aged 60 or over)
- be able to speak and understand basic English (except for applicants aged 60 or over)
- understand the nature of the application
- intend to reside in Australia or to maintain a close and continuing association with Australia.
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.
There are some exceptions to the standard requirements, including:
- children of former Australian citizens
- Australian Defence Forces veterans
- former Australian citizens and those born in Australia
- children adopted by Australian citizens
- spouses and interdependent partners of Australian citizens
- persons born in Papua before Independence in 1975
- persons born in Australia who are stateless
Those who were present in Australia as permanent residents before 1 July 2007 remain subject to the previous residence requirement (in force since 1984) on any application for citizenship made before 1 July 2010 — they must:
- have been present in Australia as a permanent resident for a total of 2 years in the 5 years before application
- have been present in Australia for a total total of 12 months in the 2 years before application.
In general, 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. The exceptions are:
- children of former Australian citizens granted citizenship under section 21(6) of the Act
- persons born in Papua before Independence granted citizenship under s21(7) of the Act
How to Apply for Grant of Australian Citizenship (pdf format)
Becoming a Citizen - What You Should Know (pdf format)
As of 1 October 2007, legislation came into effect requiring most applicants (aged between 18 and 60) for Australian citizenship by naturalisation to pass an Australian citizenship test which focuses on Australia’s values, history, traditional and national symbols. Information people need to know to answer the test questions are included in a resource book developed to help people prepare for citizenship.
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)
- A person born outside Australia on or after 26 January 1949 may be registered as an Australian citizens by descent provided
- they had an Australian citizen 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;
- A person born outside Australia and New Guinea before 26 January 1949 may be registered as an Australian citizen provided:
- that person has a parent born or naturalised in Australia or New Guinea; and
- the parent became an Australian citizen on 26 January 1949
If aged 18 or over, an applicant for Australian citizenship by descent must be 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)
Children of former Australian citizens
Where an Australian parent 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 person'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.
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 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 not relevant 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 are generally able to apply for resumption of Australian citizenship with effect from 1 July 2007.
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.
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 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.
Since 1 July 2007, such former citizens may 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:
- 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.
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:
- 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.
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.
Resumption of Australian Citizenship
Since 1 July 2007, the criteria for former Australian citizens to resume Australian citizenship have been substantially simplified:
- a former citizen who lost Australian citizenship automatically under section 17, 20 or 23 of the 1948 Act may resume Australian citizenship subject only to being of "good character".
- a former citizen who renounced Australian citizenship is subject to an additional requirement that the renunciation must have been to acquire or retain another nationality, or to avoid hardship or disadvantage.
Children born to former Australian citizens (only those who lost Australian citizenship by virtue of section 17 of the Act) after loss of the parent's citizenship, and before the parent resumed citizenship, may be considered for a grant of Australian citizenship (whether aged under or over 18). There is no requirement for the parent to resume citizenship. This policy was put in place by Ministerial policy on 13 October 2003 for children under 18 and extended to those ahed 18 or over in the 2007 Act. 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.
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.
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 Convention.
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.
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.
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.
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, who 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 or without the words 'under God'.
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)
- a certificate of evidence of Australian citizenship
- 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)
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.
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 program
- for those with a UK-born grandparent, access to the UK Ancestry Entry Clearance
- for those born before 1983 who have a UK-born mother or are women who were married before 1 January 1983 to a man with the right of abode in the UK, the right of abode (those born before 1983, whether Commonwealth citizens or not, with a UK-born father are generally British citizens by descent)
- for those living the UK, the right to vote and stand for public office there
Australian citizens also have the freedom to live and work in New Zealand under the Trans-Tasman Travel Arrangement.
The Queen of Australia
In 1995 the Commonwealth Parliamentary Library researched [2] 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 in right of Australia. 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, 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, an Australian citizen, 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. [3]
When other members of the Royal Family enter Australia they are automatically granted special purpose visas by section 33 of the Migration Act 1958.
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.
References
See also
- Immigration to Australia
- White Australia policy
- History of British nationality law
- Special Category Visa
- E-3 visa
- UK Ancestry Entry Clearance
External links
- Australian Citizenship
- Australian Citizenship Act 2007 (current version)
- Australian Citizenship Act 1948 (last consolidation before repeal)
- Australian Citizenship Act 1948 (consolidated version as of 19 December 1973)
- Australian Immigration Fact Sheet - Australian Citizenship
- Southern Cross Group (lobby group for Australians overseas)
