Australian Citizenship Law [2 ed.]

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Australian Citizenship Law

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Australian Citizenship Law

KIM RUBENSTEIN BA LLB (Hons) (Melb), LLM (Harv)

Professor, ANU College of Law Australian National University

with

JACQUELINE FIELD BSc LLB (Hons) (ANU)

SECOND EDITION

LAWBOOK CO. 2017

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW The Cataloguing-in-Publication entry is available upon request at the National Library of Australia

© 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Copyright of Cth legislative material: All Commonwealth legislative material is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. For reproduction or publication beyond that permitted by the Copyright Act 1968 (Cth), permission should be sought in writing from the current Commonwealth Government agency with the relevant policy responsibility Managing Editor: Lara Weeks Editor: Merilyn Shields Product Developer: Lucas Frederick Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://www.pefc.org

Preface Geopolitical changes triggering massive population flows, with heightened border protection and security concerns, have made citizenship questions far more pressing in the 15 years since the publication of the first edition of this book. Through my continuing mix of research and public policy work in Australian citizenship law, I have watched these developments from up close, doing what I can to shape outcomes and restrain excesses. My experiences inform the second edition. I acted as a consultant to the then Department of Immigration and Multicultural and Indigenous Affairs on the review and restructure of the Australian Citizenship Act 1948 (Cth), enacted in 2007 as the new Australian Citizenship Act 2007 (Cth). I have acted as lead counsel in two High Court matters; on the special leave application to the Court from Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694 and in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439. I was junior counsel to the solicitor general in Singh v Commonwealth (2004) 222 CLR 322 and I have acted in other Federal Court and Adminstrative Appeals Tribunal cases on citizenship law. Internationally, I participated in legal and and policy work on statelessness and on citizenship by descent policy and have been involved in two amici submissions before the United States Supreme Court. My most recent public policy activities, largely through Opinion pieces in the media and a submission to the Parliament were around the late 2015 changes on loss of citizenship in the Australian Citizenship Act 2007. The publication of the second edition was timed so as to include these developments. The most significant departure from the first edition in this second edition is the re-writing of Chapter 4 to reflect the repeal of the 1948 Act and the introduction of the 2007 Act. It benefits from the support of the Australian Research Council (ARC) Discovery Project Small mercies, big futures: enhancing law, policy and practice in the selection, protection and settlement of refugee children and youth LP100200596 led by Professor Mary Crock, with whom I was a chief investigator. From the ARC came research funds enabling Jacqueline Field to work with me on this second edition. Jacqui worked specifically on children and Australian citizenship law and readers familiar with the first edition will see this new material throughout the second. In addition, Jacqui reviewed all chapters in light of the changes to the 1948 and 2007 Act and I am grateful for Jacqui’s work with me on the entire book. This second edition recognises those contributions on the title page and Jacqui’s name in the list of contents as co-author for Chapter 4 highlights her original contributions to the drafting of that significant chapter in the book. When considering the second edition I paid particular attention to Chapter 5, around the legislative aspects of the status of citizenship. One published review of the first edition identified the most interesting part of that chapter in the

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Preface

analysis in the grouping of distinctions between citizens and non-citizens, rather than the listing of Acts. While the lists have remained they have been updated to a limited extent, and the introductory analysis has been updated. I thank Natalie Blok, from the Victorian Bar, who assisted Jacqui and me in reviewing the legislation to ensure that important practical aspects of Chapter 5 included the most relevant pieces of current legislation up to and including Act No 74 of 2014. As I state in the first edition, this book is not only the product of professional ties and associations of which I am very grateful. This is true also for the second edition. I would like to thank Jacqui’s partner Jy Millis for encouraging Jacqui to contact me many years ago about honours supervision, which has led to our later research and writing together in this area. Jy has continued to support Jacqui as she has balanced this work on citizenship together with her other work and personal commitments! My parents, Sue and Leigh Rubenstein and my sister Elana provided me with a strong family foundation, necessary to all that I have been privileged to undertake in my professional life. My husband Garry Sturgess is my greatest champion and is forever ready and able to edit my work and always there to provide encouragement and support in everything I do. He is a true partner in every sense of the word and our children, Cohava and Eliezer, have benefitted from the equal involvement we have had in their parenting. When the first edition of the book was published they were 3 and 1 and they are now 18 and 16; about to move into navigating their own adult lives as Australian citizens. They have absorbed Garry and my belief in the importance of active citizenship – both in our immediate local and national community and they have a sense of it also in an international context. I am very proud of them as individuals and all that they have already achieved in their lives. We live in challenging times, particularly regarding questions around membership in national communities. I hope this second edition continues to help navigate some of those vital questions. Kim Rubenstein November, 2016

Preface to the First Edition While largely written during 2001, this book is, in fact, the culmination of many years’ work. My research in Australian citizenship began in 1994 with a trip to Berlin. The University of Melbourne was invited to send an academic to contribute to an Australia Day Symposium on Immigration and Integration and Professor Cheryl Saunders suggested I attend. For that, and all her support of my work, I feel exceedingly lucky and grateful. My paper included a section on the Constitution and citizenship, and from that point forward, my interest in citizenship developed. Since then I have been fortunate in receiving two Australian Research Council grants for my work and a University of Melbourne research grant. This has meant I have had a continual source of research assistance — former students, now friends and colleagues, who have worked with me on this project include Kylie Evans, Jennifer Patterson, Mark Grasso, Evelyn Ng, Larissa Halonkin, Frances Keogh, and Kate O’Brien. In particular, Larissa Halonkin spent 2001 working for me both part-time and full-time. In addition to many and varied tasks, she joined me in reading and synthesising every Administrative Appeals Tribunal decision referred to in this book — a huge effort and one for which I am truly grateful. In the last few years, in my position at the University of Melbourne, my work has greatly benefited from one study-leave and two research-leave periods. In particular, the Law School has fully supported my research endeavours and helped me balance my full-time workload with my role as a mother of young children. In particular, I would like to thank Professor Michael Bryan as Deputy Dean and Director of Academic Staff and the Dean, Professor Michael Crommelin, for supporting me in undertaking the research necessary for this book. Thanks also are due to the administrative support staff at the Law School, in particular Janet McPherson. This book aggregates and extends previous work. It consists of revised versions of work that has appeared earlier in different forms. Chapter 1 includes parts of “Citizenship in Australia: Unscrambling its Meaning” (1995) 20 Melbourne University Law Review 503 and “Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia” (2000) 24 Melbourne University Law Review 576. Chapter 2 is an updated “Citizenship and the Constitutional Convention Debates: A Mere Legal Inference?” (1997) 25 Federal Law Review 295. Chapters 3 and 6 also benefit from parts of “Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia” (2000) 24 Melbourne University Law Review 576. A chapter I contributed to Anghie and Sturgess (eds), Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (Kluwer Law International, 1998), “Citizenship in a Borderless World”, is the foundation for Chapter 7, which also draws from a piece I wrote with Daniel Adler, “International Citizenship: The Future of Nationality in a Globalised World” (2000) 7 Indiana Journal of Global Legal Studies 519.

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Most crucially this book has new work. Chapter 4, the subject of which is The Australian Citizenship Act 1948 (Cth), is intended to provide the most up-to-date analysis on this piece of legislation. While mostly new research, of course it benefits from earlier work in the area. In aggregate, my proofreaders have politely complained it could be a book in itself! Michael Pryles’ Australian Citizenship Law (Law Book Company Ltd, 1981) was an invaluable starting point for the development of this chapter, as it was for chapter 3, as can be seen in various footnotes. This chapter also benefited from the assistance of members of the citizenship policy section of the Department of Immigration and Multicultural Affairs. Lyn Barbaro, Anne Harkness and Lisa Finch provided me with copies of the “Coopers” Consolidation of the Act in its most updated form, the Australian Citizenship Instructions, and a table of cases that had been before the Administrative Appeals Tribunal between 1993 and 2000. I am also grateful to Lyn Barbaro and Lisa Finch for reviewing a draft of Chapter 4. The work and any errors are, of course, my own. Two further notes on Chapter 4: I have quoted from the Australian Citizenship Instructions where appropriate. Copyright in the Instructions lies with the Commonwealth of Australia and they are reproduced with permission. Many of the unreported Administrative Appeals Tribunal decisions are available on the Austlii website: http://www.austlii.edu.au. However, I am also grateful to Lechelle Wunsch, Melbourne Registry Librarian of the Commonwealth Administrative Appeals Tribunal, who followed up unreported citizenship decisions of the AAT that I was unable to obtain. My collection of AAT decisions has been further supplemented by Ron Huttner, who regularly updates his website on Australian Citizenship law and keeps me informed of the newest citizenship decisions. As a result of this assistance, I believe I have in my possession the most up-to-date collection of AAT citizenship decisions! Chapter 5, which is on the legislative consequences of citizenship, is also a new, substantial chapter. It contains material, the copyright of which rests with the Commonwealth of Australia and which is reproduced with permission. This chapter contributes to our understanding of citizenship as it is the first comprehensive listing of all Commonwealth legislation that discriminates on the basis of citizenship and residence, and I hope it will assist in thinking about citizenship and its legal meaning. However, this book, as its title suggests, is intended to place the legal meaning of citizenship in a broader context. In that sense, I would also like to thank friends and colleagues in law and other disciplines, in Australia and overseas, who have assisted me in my thinking about citizenship. These include David Abraham, Daniel Adler, Alex Aleinikoff, Tony Anghie, Matthew Beckmann, Adelle Blackett, Tony Blackshield, Linda Bosniak, Joseph Carens, Deborah Cass, Stephen Castles, John Chesterman, Hilary Charlesworth, Mary Crock, Mary Crooks, Sean Cooney, Kate Darian-Smith, Catherine Dauvergne, David Dutton, Simon Evans, Donald Galloway, Brian Galligan, Harry Glasbeek, Helen Irving, Laki Jayasuria, Ann-Mari Jordens, James Jupp, Susan Kneebone, Karen Knop, Will Kymlicka, Marilyn Lake, Stephen Legomsky, David Martin, Pene Mathew, Stuart Macintyre, Anne Mullins, Di Otto, Glenn Patmore, Colin Rubenstein, Cheryl Saunders, Marian

Preface to the First Edition ix

Sawer, Peter Spiro, Peter Schuck, Maila Stivens, Margaret Thornton, Gillian Triggs, Kris Walker, George Williams and Anna Yeatman. I would also like to thank Mary Elizabeth Calwell, the daughter of the late Arthur Calwell, for sending to me copies of her father’s Second Reading speeches in Parliament, referred to, in particular, in the material in Chapter 3. My appreciation also goes to the editorial team at Lawbook Co. for their work in this book’s production, in particular Merilyn Shields for the patient way in which she dealt with last minute revisions as a result of the most recent amendments to the Australian Citizenship Act 1948 (Cth). Thus, I am delighted to say that this is the most up-to-date and comprehensive book on Australian citizenship law. This book is not only the product of professional ties and associations — it stems, too, from an interior and personal world. My parents, Sue and Leigh Rubenstein, and my sister Elana, have, together, always provided me with the foundation necessary to undertake all that I have been privileged to do. My husband, Garry Sturgess, is my greatest champion and is forever ready and able to edit my work and always there to provide encouragement and support in everything — a true partner in every sense of the word. Our two children have been born during the course of this book’s production — Cohava and Eliezer Rubenstein Sturgess are two Australian citizens we have nurtured through the cultivation and evolution of this book, and to whom this book is dedicated. Kim Rubenstein Melbourne, April 2002

Table of Contents Preface .................................................................................................................................................... v Preface to the First Edition ................................................................................................................. vii Table of Cases ..................................................................................................................................... xiii Table of Statutes .................................................................................................................................. xxi Chapter 1: Citizenship in Australia: An Overview .......................................................................... 1 Chapter 2: Australian Citizenship in the 1890s and the Australasian Federal Convention Debates: Lessons for the 21st century ................................................................................... 35 Chapter 3: Australian Subjecthood Before Australian Citizenship: 1901–1948 ........................ 63 Chapter 4: Australian Citizenship Act 2007 (Cth) Kim Rubenstein and Jacqueline Field ................................................................................... 91 Chapter 5: Legislative Consequences of Citizenship ................................................................... 291 Chapter 6: The High Court, Citizenship and Membership ........................................................ 353 Chapter 7: Future of Australian Citizenship ................................................................................ 389 Appendix ..................................................................... ..................................................................... 423 Bibliography ........................................................................................................................................ 435

Index .................................................................................................................................................... 449

Table of Cases A A v Hayden (1984) 156 CLR 532 .................................................................................................. 6.250 AP and Minister for Immigration and Border Protection [2014] AATA 706 ............................... 4.750 Abraham and Department of Immigration and Multicultural Affairs [1997] AATA 446 ............. 4.850 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 ..... 1.110, 4.70, 5.120, 6.250, 7.30 Adediran and Minister for Immigration and Citizenship [2013] AATA 482 ................................ 4.790 Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116 ................... 6.220 Ah Yin v Christie (1907) 4 CLR 1428 ............................................................................... 1.110, 3.100 Air Caledonie International v Commonwealth (1988) 165 CLR 462 .................... 1.110, 5.190, 6.150 Al-Kateb v Godwin (2004) 219 CLR 562 .............................................. 2.160, 4.40, 4.70, 6.60, 6.230 Al Hashimi and Minister for Immigration and Citizenship (2012) 130 ALD 640 .................... 4.1090 Alexios Delis v Department of Immigration and Multicultural Affairs (unreported, AAT, Decision No Q96/206, 3 February 1997) ................................................................................. 4.620 Allan and Department of Foreign Affairs, Re (1986) 5 AAR 432; 11 ALD 28 ......................... 4.1310 Alu-Numa and Minister for Immigration and Citizenship [2008] AATA 993 .............................. 4.990 Attorney-General (Cth) v Ah Sheung (1907) 4 CLR 949 .................................................. 1.110, 3.100 Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 .................................................. 2.170 Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436 ....................................... 4.30 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 .... 6.130, 6.250, 6.260 Australian Communist Party v Commonwealth (1951) 83 CLR 1 ................................................. 4.70

B Bachmann and Minister for Immigration and Multicultural Affairs [1999] AATA 465 ............. 4.1170 Barton v Commonwealth (1974) 131 CLR 477 ............................................................................ 6.230 Beersten and Minister for Immigration and Multicultural Affairs [1997] AATA 78 .................. 4.1050 Bilouni and Minister for Immigration and Multicultural Affairs [2001] AATA 233 .................. 4.1100 Bolton, Re; Ex parte Beane (1987) 162 CLR 514 .................. 1.110, 5.120, 5.210, 6.130, 6.250, 7.50 Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321 .................................................. 5.190 Boskovic and Minister for Immigration and Multicultural Affairs [2000] AATA 251 ............... 4.1100 Brambles Holdings v Federal Commissioner of Taxation (1977) 138 CLR 467 ......................... 6.240 Brian and Minister for Immigration and Citizenship (2008) 105 ALD 213 ................................ 4.990 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) Aust Torts Reports 81-607 .......................................................................................................................... 6.250 Brown v The Queen (1986) 160 CLR 171 .................................................................................... 6.210 Brownlee v The Queen (2001) 75 ALJR 1180; [2001] HCA 36 .................................................. 6.210 Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933 ............................ 4.950 Bunning v Cross (1978) 141 CLR 54 ............................................................................................ 6.250 Bustamante de Brady and Department of Immigration, Local Government and Ethnic Affairs, Re (1992) 28 ALD 130 .................................................................................... 4.800

C C1 and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 519 .... 4.1090 Carter v Managing Partner, Northmore Hale Davey & Leake (1995) 183 CLR 121 .................. 6.250 Catanzaro and Department of Immigration, Local Government and Ethnic Affairs, Re (1994) 34 ALD 791 .................................................................................. 4.1050 Chai and Minister for Immigration and Ethnic Affairs (1994) 36 ALD 751 ............................... 4.850

xiv Table of Cases Chan (Cheuk Yeun Raphael) and Department of Immigration and Ethnic Affairs [1995] AATA 210 .............................................................................................. 4.850 Chaudhary and Minister for Immigration and Citizenship (2010) 53 AAR 561; [2010] AATA 1006 .................................................................................................................... 4.790 Cheatle v The Queen (1993) 177 CLR 541 ................................................................................... 6.210 Chen and Minister for Immigration and Citizenship (2012) 128 ALD 682 ............................... 4.1090 Cheng v The Queen (2000) 203 CLR 248 ......................................................................... 2.170, 6.210 Chia Gee v Martin (1906) 3 CLR 649 ............................................................................... 1.110, 3.100 Cho and Department of Immigration and Multicultural Affairs [1997] AATA 971 ..................... 4.850 Choi and Minister for Immigration and Citizenship (2008) 104 ALD 117; [2008] AATA 726 ............................................................................................................. 4.230, 7.90 Christie v Ah Sheung (1906) 3 CLR 998 ........................................................................... 1.110, 3.100 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 ...................... 1.90, 2.40, 3.100, 5.120, 5.190, 6.20, 6.230, 7.30 Chung Teong Toy v Musgrove (1888) 14 VLR 349 ....................................................................... 2.40 Cleland v The Queen (1982) 151 CLR 1 ...................................................................................... 6.250 Clough v Leahy (1904) 2 CLR 13 ................................................................................................. 6.250 Cole v Whitfield (1988) 165 CLR 360 ............................................................................................ 2.20 Cross and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 97 .................. 4.410 Cunliffe v Commonwealth (1994) 182 CLR 272 ........... 1.110, 4.40, 4.60, 4.70, 5.210, 6.130, 6.210, 6.250, 7.30, 7.50

D DJL v Central Authority (2000) 201 CLR 226 .................................. 5.190, 5.300, 6.20, 6.150, 6.230 DPP v Smith [1991] 1 VR 63 ...................................................................................................... 4.1200 Dainty and Minister for Immigration and Ethnic Affairs, Re (1987) 6 AAR 259 ....................... 4.220 Davies and Minister for Immigration and Multicultural Affairs [2000] AATA 509 ................... 4.1100 Davis v Commonwealth (1988) 166 CLR 79 ......................................................................... 4.70, 7.30 Dawson v Commonwealth (1946) 73 CLR 157 .............................................................................. 4.90 Dick Avi and Minister for Immigration and Citizenship [2008] AATA 992 ................................ 4.990 Donohoe v Wong Sau (1925) 36 CLR 404 ................................................................................... 3.100 Dose and Minister for Immigration and Multicultural Affairs [2001] AATA 311 ...................... 4.1050 Dr Mohammed Amanullah Khan v Minister for Immigration and Multicultural Affairs (unreported, AAT, Decision No N96/1198, 30 October 1997) ................................................ 4.850 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 ............................... 4.1470 Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634 ............ 4.220 Dvorani v Minister for Immigration and Multicultural Affairs (2000) 31 AAR 536 ..... 4.410, 4.1160, 4.1220, 4.1340

E Eddison and Minister for Immigration and Multicultural Affairs [2001] AATA 533 ................. 4.1310 English and Minister for Immigration and Citizenship [2010] AATA 107 ................................. 4.1360 Esmond Motors v Commonwealth (1970) 120 CLR 463 ............................................................. 6.250

F Farey v Burvett (1916) 21 CLR 433 ............................................................................................ 4.1260 Federal Republic of Germany and Rauca, Re (1983) 41 OR (2d) 225 ........................................ 5.190 Finn and Minister for Immigration and Multicultural Affairs [2000] AATA 823 ...................... 4.1050 Foster v Minister for Customs and Justice (2000) 200 CLR 442 ................................................. 5.190 Fraser and Minister of State for Immigration, Local Government and Ethnic Affairs, Re (unreported, AAT, Decision No S91/205, 15 October 1991) .................................................. 4.850 Fryar v Systems Services Pty Ltd (1994) 125 ALR 592 .............................................................. 4.750

Table of Cases xv

G Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 ............................... 5.10 Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1981) 150 CLR 225 ................. 6.250 Ginate and Minister for Immigration and Citizenship [2008] AATA 1002 .................................. 4.990 Girgis and Minister for Immigration and Citizenship [2013] AATA 481 ..................................... 4.790 Goodman and Minister for Immigration and Multicultural Affairs [2002] AATA 40 .................. 4.850 Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 ................... 4.940, 4.950

H H v Minister for Immigration and Citizenship (2010) 272 ALR 605 ...................... 4.270, 4.430, 7.80 Hamilton v Oades (1989) 166 CLR 486 ........................................................................................ 6.250 Hamilton v University of California 293 US 245 (1934) ............................................................. 6.220 Headford and Department of Immigration and Ethnic Affairs [1993] AATA 259 ..................... 4.1050 Heald and Minister for Immigration and Multicultural Affairs [2001] AATA 455 ...................... 4.410 Heiner v Minister for Immigration and Citizenship (2013) 213 FCR 280; [2013] FCA 617 ... 4.1310 Henry Guan Lim Tan and Minister for Immigration and Multicultural Affairs [1998] AATA 811 ...................................................................................................................... 4.850 Hileli and Department of Immigration and Ethnic Affairs [1995] AATA 419 ........................... 4.1470 Ho, Re (1975) 10 SASR 250 .......................................................................................................... 4.160 Ho v Minister for Immigration and Ethnic Affairs, Re (1994) 34 ALD 664; [1994] AATA 516 ........................................................................................................... 4.620, 4.850 Home Affairs (Cth), Minister for v Zentai (2012) 246 CLR 213 ...................................... 5.190, 6.230 Hudson v Minister for Immigration and Citizenship (2012) 126 ALD 40; [2011] FCA 1134 .... 4.430 Hwang v Commonwealth (2005) 222 ALR 83 ............................................................. 1.30, 4.70, 7.30

I Iga and Minister for Immigration and Citizenship [2008] AATA 996 .......................................... 4.990 Immigration, Local Government and Ethnic Affairs, Minister for v Dela Cruz (1992) 34 FCR 348 ................................................................................................................. 4.1380 Immigration, Local Government and Ethnic Affairs, Minister for v Gugerli (1992) 15 AAR 483 ................................................................................................................ 4.1310 Immigration, Local Government and Ethnic Affairs, Minister for v Roberts (1993) 41 FCR 82 . 1.10, 4.220, 4.590, 4.850, 5.310 Immigration and Ethnic Affairs, Minister for v Pochi (1982) 149 CLR 139 ............................... 5.190 Immigration and Ethnic Affairs, Minister for v Teoh (1995) 183 CLR 273 . 1.60, 1.90, 1.110, 6.150, 7.90 Immigration and Multicultural and Indigenous Affairs, Minister for v Walsh (2002) 189 ALR 694 ................................................................................. 4.40, 4.170, 4.250, 4.740 Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 ......................................................................................... 4.410, 4.1070, 4.1100 Ishri and Minister for Immigration and Ethnic Affairs [1994] AATA 279 ................................... 4.800 Islam v Minister for Immigration and Citizenship (2012) 125 ALD 476 .................................... 4.800

J Jack Grossberg v Department of Immigration and Ethnic Affairs (unreported, AAT, Decision No V94/565, 23 October 1995) ....................................................................... 4.410 Jackson and Minister for Immigration and Citizenship (2011) 54 AAR 149; [2011] AATA 60 . 4.610 Jafar and Minister for Immigration and Citizenship [2012] AATA 577 ....................................... 4.820 Ji-Eun Lee and Minister for Immigration and Citizenship, Re [2010] AATA 906 ...................... 1.130 Jimmy Tinamisan v Minister for Immigration and Multicultural Affairs (unreported, AAT, Decision No N95/1766, 30 January 1997) ..................................................................... 4.850 Judd v McKeown (1926) 38 CLR 380 .......................................................................................... 6.170

xvi Table of Cases

K KKRG and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 635 ... 4.750 Kalejs v Republic of Latvia [2001] FCA 676 ................................................................................ 5.190 Kamore and Minister for Immigration and Citizenship (2011) 124 ALD 107; [2011] AATA 765 ...................................................................................................................... 4.870 Kao (Ming Nan) and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916 ............ 4.850 Keenan and Minister for Immigration and Citizenship, Re (2008) 104 ALD 453 ...................... 4.900 Kenny v Minister for Immigration and Ethnic Affairs (1993) 42 FCR 330 ... 4.20, 4.30, 4.60, 4.160, 4.170, 4.190, 4.1170 Khan v Minister for Immigration and Citizenship [2011] FCA 75 ............................................ 4.1380 Khoi Tri Tang (also known as Chi Tzo Tseng) and Candice Hui Nui Cho and the Honourable Christopher John Hurford, Minister of State for Immigration and Ethnic Affairs, Re [1986] FCA 214 .......................................................................................................................... 7.90 Kilpi and Minister for Immigration and Citizenship (2012) 135 ALD 649; [2012] AATA 605 . 4.220, 4.800 Kim and Minister for Immigration and Ethnic Affairs [2002] AATA 102 ................................... 4.850 Kioa v West (1985) 159 CLR 550 ........................................................................... 1.60, 4.260, 4.1080 Koe v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 353 ...................... 4.1330 Kolotex Hosiery v Federal Commissioner of Taxation (1975) 132 CLR 535 ............................. 6.240 Koon Wing Lau v Calwell (1949) 80 CLR 533 ................................................................... 3.100, 6.60 Koroitamana v Commonwealth (2006) 227 CLR 31 .................... 1.30, 4.40, 4.50, 4.120, 6.100, 7.30 Kruger v Commonwealth (1997) 190 CLR 1 ....................................................................... 6.20, 6.130

L Lai and Minister for Immigration and Multicultural Affairs [2001] AATA 458 .......................... 4.850 Lan and Minister for Immigration and Multicultural Affairs [2001] AATA 362 ......................... 4.850 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ..................... 1.110, 6.130, 6.250 Lappas and Department of Immigration and Multicultural Affairs, Re [1999] AATA 380 . 3.10, 3.50, 4.410 Lata and Minister for Immigration and Multicultural Affairs [2001] AATA 128 ....................... 4.1100 Latiff and Minister for Immigration and Multicultural Affairs [2000] AATA 1158 ..................... 4.850 Lavalu and Minister for Immigration and Citizenship [2010] AATA 229 ........................ 4.480, 4.710 Lavelua and Minister for Immigration and Citizenship [2010] AATA 314 ....................... 4.480, 4.710 Lavoie v A-G of Canada and the Public Service Commission of Canada [1995] FC 623 .. 5.40, 5.50 Lavoie v Canada [2000] 1 CF 3 ........................................................................................... 5.40, 6.200 Lavoie v Canada [2002] SCC 23 ................................................................................. 5.40, 6.200, 7.50 Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336; [2011] FCA 1458 ........ 4.270, 4.1360 Lee and Department of Immigration and Multicultural Affairs [1998] AATA 799 ...................... 4.850 Leeth v Commonwealth (1992) 174 CLR 455 ................................................................... 2.220, 6.260 Lester and Minister for Immigration and Citizenship, Re (2010) 114 ALD 688 ........................... 3.50 Leung v Minister for Immigration and Multicultural Affairs (1997) 26 AAR 192 .......... 4.550, 4.580 Li Wan Quai v Christie (1906) 3 CLR 1125 ...................................................................... 1.110, 3.100 Li and Department of Immigration and Multicultural Affairs [1999] AATA 897 ........................ 4.850 Liechtenstein v Guatamala (Nottebohm Case) Second Phase 1955 ICJ 4 (Judgment 6 April) p 23 ............................................................................................................ 4.100 Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 ..... 1.110, 4.70, 5.190, 6.60, 6.140 Liu and Minister for Immigration and Multicultural Affairs [1999] AATA 251 .......................... 4.610 Lo (Man Bun) and Department of Immigration and Ethnic Affairs (1993) 32 ALD 235 ........... 4.850 Lo and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 579 ......... 4.780 Lohia and Minister for Immigration and Citizenship [2008] AATA 998 ..................................... 4.990

Table of Cases xvii

M MIMIA, Re; Ex parte Ame [2005] HCATrans 66 ......................................................................... 6.110 Mabo v Queensland [No 2] (1992) 175 CLR 1 ............................................................................ 6.260 Martin and Minister for Immigration and Citizenship (2011) 123 ALD 628 ............................... 4.990 McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447 ........................................................................................... 4.850 McCarthy and Minister for Immigration and Citizenship [2009] AATA 887 ............................... 4.990 McGinty v Western Australia (1926) 38 CLR 380 ........................................................................ 6.190 Melloway and Department of Immigration and Ethnic Affairs (1993) 32 ALD 360 ................... 4.850 Meyer v Poynton (1920) 27 CLR 436 .................................................................................... 4.70, 7.30 Michael Movsas v Department of Immigration and Ethnic Affairs [1996] AATA 52 ................. 4.850 Michalowski v Minister for Immigration, Local Government and Ethnic Affairs (1992) 35 FCR 265 ......................................................................................... 4.1380 Mills and Minister for Immigration and Citizenship [2012] AATA 753 .................................... 4.1090 Minister for Immigration and Multicultural Affairs, Re; Ex parte Meng Kok Te (2002) 212 CLR 162 ....................................................................................... 4.40, 4.60, 4.70, 6.70 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Ame (2005) 222 CLR 439 ............................................................. 2.160, 4.40, 4.70, 4.170, 4.740, 5.10, 6.110, 7.30 Mocatta and Department of Immigration and Ethnic Affairs, Re (1995) 38 ALD 665 ............... 4.410 Moefaauo and Minister for Immigration and Multicultural Affairs [2001] AATA 289 .............. 4.1100 Molisi v Minister for Immigration and Multicultural Affairs (2001) 108 FCR 516; [2001] FCA 420 ........................................................................................................................ 4.260 Moore v Minister for Immigration and Multicultural Affairs (unreported, AAT, Decision No 96/342, 28 October 1997) ........................................................................ 4.1100 Mortimer v Brown (1970) 122 CLR 493 ....................................................................................... 6.250 Muramats v Commonwealth Electoral Office (1923) 32 CLR 500 ................................................ 3.40 Musgrove v Chun Teeong Toy [1891] AC 272 ............................................................................... 2.40

N NWH and Minister for Immigration and Citizenship (2011) 121 ALD 224 ................................ 4.430 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 .................................................................. 6.130 Nensey and Minister for Immigration and Multicultural Affairs [2001] AATA 723 .................... 4.850 Neoh Weng Fei and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 624 ...................................................................................................................... 4.780 Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 ............................................... 6.240 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 .. 1.90, 3.20, 3.120, 4.10, 4.30, 4.40, 4.60, 4.100, 4.140, 4.190, 5.190, 6.70, 6.80 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 ............................ 6.250

O Okeke and Minister for Immigration and Citizenship [2012] AATA 882 ....................... 4.230, 4.1090 Osorio and Minister for Immigration and Citizenship (2007) 94 ALD 525; [2007] AATA 59 ........................................................................................... 4.1200, 4.1210, 4.1230 Ousley v The Queen (1997) 192 CLR 69 ...................................................................................... 6.250

P PE v Department of Immigration and Ethnic Affairs (unreported, AAT, Decision No Q94/30, 8 March 1995) ..................................................................................... 4.1100 Page and Department of Immigration and Ethnic Affairs [1995] AATA 20 ................................. 4.850 Pai and Minister for Immigration and Ethnic Affairs, Re (1994) 35 ALD 762 ........................... 4.850 Paras and Minister for Immigration and Citizenship [2012] AATA 915 ...................................... 4.990

xviii Table of Cases Pathmini Ravichandran and Minister for Immigration and Citizenship, Re (2010) 52 AAR 23; [2010] AATA 463 ...................................................................................................................... 4.660 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391 ......... 2.160, 3.20, 3.120, 4.20, 4.40, 4.60, 4.70, 4.120, 4.130, 4.190, 4.1320, 5.190, 6.20, 6.40, 6.50, 6.120, 6.150, 6.170, 7.30 Paul and Minister for Immigration and Citizenship, Re [2009] AATA 97 .......................... 4.230, 7.90 Paul and Minister for Immigration and Citizenship, Re (2010) 116 ALD 321; [2010] AATA 411 ...................................................................................................................... 1.130 Paulding and Australian Electoral Commission [2000] AATA 202 .............................................. 5.140 Peate v Federal Commissioner of Taxation (1964) 111 CLR 443 ................................................ 6.240 Petrovski v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 531 ............................ 4.250 Pillinger and Minister for Immigration and Multicultural Affairs [2000] AATA 462 .................. 4.410 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 ....... 4.70 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 ........................................................ 5.190 Plange and Minister for Immigration and Border Protection [2013] AATA 837 ......................... 4.800 Pochi v Macphee (1982) 151 CLR 101 ............ 1.90, 4.30, 4.40, 4.70, 4.80, 4.160, 4.190, 6.70, 7.30 Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 ................................ 4.1210 Polites v Commonwealth (1945) 70 CLR 60 ..................................................................... 1.100, 6.220 Potter v Minahan (1908) 7 CLR 277 ............................................................... 1.90, 1.110, 3.100, 4.30 Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 ................................................. 4.1200, 4.1210, 4.1220, 4.1230 Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 .............................. 4.1080 Preston v Donohoe (1906) 3 CLR 1089 ............................................................................. 1.110, 3.100 Public Service Board of NSW v Osmond (1986) 159 CLR 656 ................................................ 4.1460 Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 ...................... 6.250

R R R R R

v v v v

Director-General of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369 .................. 4.60 Glennon (1992) 173 CLR 592 ................................................................................................ 6.210 Lindbergh; Ex parte Jong Hing (1906) 3 CLR 93 ...................................................... 1.110, 3.100 Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation (1981) 147 CLR 471 .............................................................................................. 6.250 R v McFarlane: Ex parte O’Flannagan and O’Kelly (1923) 32 CLR 518 ..................................... 4.60 R (Montana) v Secretary of State for the Home Department [2001] 1 FLR 449 ............ 1.130, 6.150 RPS v The Queen (2000) 199 CLR 620 ........................................................................................ 6.250 Raisini and Minister for Immigration and Citizenship, Re [2008] AATA 640 ................... 4.230, 7.90 Ramage and Department of Immigration and Ethnic Affairs [1995] AATA 511 ......................... 4.850 Rani v Minister for Immigration and Multicultural Affairs (unreported, Fed Ct of Aust, Decision No NG 394/97, Sackville J, 19 December 1997) .................................................... 4.260 Re Khoi Tri Tang (also known as Chi Tzo Tseng) and Candice Hui Nhi Cho v Hon Christopher John Hurford, Minister of State for Immigration and Ethnic Affairs [1986] FCA 214 .......................................................................................................................... 5.10 Refugee Review Tribunal, Re; Ex parte AALA (2000) 204 CLR 82 ............................... 6.140, 6.250 Roach v Electoral Commissioner (2007) 233 CLR 162 .................................................... 6.180, 6.190 Robtelmes v Brenan (1906) 4 CLR 395 .................................................................... 3.100, 5.190, 6.50 Rogers and Minister for Immigration and Citizenship [2011] AATA 592 .................................... 4.790 Rosemary Avi and Minister for Immigration and Citizenship [2008] AATA 991 ........................ 4.990 Rowe v Electoral Commissioner (2010) 243 CLR 1 ......................................................... 6.180, 6.190 Ruddock v Vadarlis (2001) 183 ALR 1; [2001] FCA 1329 ..................................... 5.190, 6.60, 7.120

S SNMX and Minister for Immigration and Citizenship, Re (2009) 110 ALD 645; [2009] AATA 539 ........................................................................... 1.130, 4.220, 4.230, 4.710, 7.90 Sanctuary Lakes Pty Ltd and Commissioner of Taxation (2012) 129 ALD 126 ....................... 4.1380 Sapak and Minister for Immigration and Citizenship [2012] AATA 137 ................................... 4.1360 Sariman and Minister for Immigration and Citizenship [2012] AATA 387 ................................. 4.990

Table of Cases xix Saunders and Minister for Immigration and Citizenship [2012] AATA 666 ................................ 4.900 Sebecke and Minister for Immigration and Citizenship [2011] AATA 731 .................................. 4.800 Shaddock & Associates v Parramatta City Council [No 1] (1981) 150 CLR 225 ....................... 6.250 Shams v Minister for Immigration and Citizenship (2011) 199 FCR 423; [2011] FCA 1505 .... 4.220 Shan and Minister for Immigration and Citizenship [2010] AATA 923 ....................................... 4.800 Shao and Minister for Immigration and Citizenship [2012] AATA 709 ....................................... 4.670 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 .... 3.20, 3.120, 4.40, 4.60, 4.140, 4.190, 5.190, 6.40, 6.70, 6.80 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 ........................................ 4.1470 Singh v Commonwealth (2004) 222 CLR 322 . 1.30, 1.90, 4.30, 4.40, 4.50, 4.70, 4.120, 6.100, 7.30 Singh v Minister for Immigration and Citizenship [2011] FCA 685 ............................................ 4.220 Singh v Minister for Immigration and Citizenship (2012) 125 ALD 149 .................................... 4.220 Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329 ...................... 4.850 Smout and Minister for Immigration and Multicultural Affairs [2000] AATA 370 ................... 4.1050 Solis v Canada (Minister for Citizenship and Immigration) (2000) 186 DLR (4th) 512 ..... 4.30, 6.20 Steele and Minister for Immigration and Multicultural Affairs [1997] AATA 405 .................... 4.1100 Steven Solien and Department of Immigration and Citizenship [2008] AATA 1000 .................. 4.990 Street v Queensland Bar Association (1989) 168 CLR 461 ............................................................ 6.40 Sue v Hill (1999) 199 CLR 462 ......................................................... 2.180, 2.190, 3.20, 4.1260, 6.30 Suleyman and Department of Immigration and Multicultural Affairs [2000] AATA 1100 ........ 4.1100 Sykes v Cleary (No 2) (1992) 176 CLR 77 ........................................................ 2.190, 4.1300, 4.1330

T Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425 ............. 4.850 Tan and Department of Immigration and Multicultural Affairs [1999] AATA 222 ...................... 4.850 Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 ..................................................................................................... 4.1210, 4.1230 Taxation, Deputy Commissioner of v Richard Walter Pty Ltd (1995) 183 CLR 168 ................. 6.140 Taxation, Federal Commissioner of v Westraders Pty Ltd (1980) 144 CLR 55 .......................... 6.240 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 ......................................................................... 6.250 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 ............................................. 6.260 Trajkoski and Department of Immigration and Multicultural Affairs [1998] AATA 522 ........... 4.1100 Tse and Minister for Immigration, Local Government and Ethnic Affairs, Re [1992] AATA 353 ...................................................................................................................... 4.850 Tuan Anh Nguyen v Immigration and Naturalization Service 533 US 53 (2001) ......................... 7.50 Turner and Minister for Immigration and Multicultural Affairs [1999] AATA 904 ...... 4.1310, 4.1470

U Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 ............................... 4.220

V Vadarlis v Minister for Immigration and Multicultural Affairs (M93, 27 November 2001) ......... 6.60 Vasconcelos and Minister for Immigration and Citizenship [2011] AATA 534 ........................... 4.220 Vasiljkovic v Commonwealth (2006) 227 CLR 614 ..................................................................... 6.230 Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 ................................................................................................ 6.250 Victoria v Commonwealth (1975) 134 CLR 338 ................................................................... 4.70, 7.30 Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 182 ALR 617; [2001] FCA 1297 ................................................ 5.190, 6.60, 7.120 Viskauskas v Niland (1983) 153 CLR 280 ...................................................................................... 4.20

xx Table of Cases

W WBU and Minister for Immigration and Citizenship (2007) 45 AAR 225; [2007] AATA 1143 ........................................................................................ 4.1200, 4.1210, 4.1230 Wade v NSW Rutile Mining Company (1970) 121 CLR 177 ...................................................... 6.250 Wang and Department of Immigration and Multicultural Affairs [1998] AATA 206 .................. 4.850 Whicker v Hume (1858) 7 HL Cas 124; 11 ER 50 ............................................................... 1.70, 5.60 Wiggan and Minister for Immigration and Ethnic Affairs, Re (unreported, Fed Ct of Aust, Forster J, No WAG 102 of 1987, 24 March 1988) ....................................... 4.160 Willie Solien and Department of Immigration and Citizenship [2008] AATA 1001 ................... 4.990 Wolstenholme and Minister for Immigration and Citizenship (2010) 115 ALD 219; [2010] AATA 315 ...................................................................................................................... 4.220 Wong Man On v Commonwealth (1952) 86 CLR 125 ................................................................. 4.180 Woodcock and Woodcock, Re [1957] NZLR 960 ......................................................................... 4.750 Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 246 .......................... 1.110, 6.250

Y Yamuna and Minister For Immigration and Citizenship [2012] AATA 383 ................................. 4.990 Yang and Minister for Immigration and Multicultural Affairs [2001] AATA 176 ....................... 4.850 Yao v Minister for Immigration and Citizenship (No 2) [2013] FCA 873 ................................. 4.1170 Yates, Re; Ex parte Walsh (1925) 37 CLR 36 ................................................... 3.100, 4.60, 4.70, 7.30 Yu Feng Chen and Li-Li Chou Chen v Department of Immigration and Ethnic Affairs [1994] AATA 47 ................................................................................................ 4.850

Z Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372; [2011] AATA 304 .................................................................................................................... 4.1070 Zlatanovski and Minister for Immigration and Citizenship, Re (2010) 114 ALD 452 .... 4.220, 4.710

Table of Statutes Commonwealth Constitution: 1.10, 1.30, 1.110, 1.130, 2.10, 2.20, 2.30, 2.60, 2.70, 2.90, 2.110, 2.140, 2.150, 2.170, 2.190, 2.220, 2.230, 2.240, 3.10, 3.40, 3.100, 3.110, 4.10, 4.20, 4.40, 4.70, 4.80, 4.190, 4.1350, 4.1460, 5.40, 5.100, 5.180, 5.190, 5.210, 6.20, 6.40, 6.50, 6.130, 6.140, 6.170, 6.200, 6.210, 6.250, 7.10, 7.20, 7.30, 7.40, 7.50, 7.150 Ch III: 4.1350, 6.140 s 7: 1.30, 6.180 s 9: 6.170 s 12: 6.100 s 17: 1.30 s 24: 1.30, 2.30, 6.180 s 25: 2.30 s 34: 1.30, 5.180 s 41: 3.40, 5.210, 6.130, 6.170, 6.180 s 44: 1.80, 2.100, 6.20, 6.30, 7.40 s 44(i): 1.30, 1.80, 2.180, 2.190, 3.20, 4.80, 4.1170, 4.1300, 4.1330, 5.180, 6.200, 7.20, 7.30, 7.40 s 51: 1.30, 2.10, 2.90, 2.110, 4.20, 4.80, 7.20, 7.30 s 51(vi): 4.10 s 51(xix): 1.30, 1.110, 2.110, 2.230, 3.20, 3.40, 3.100, 4.20, 4.30, 4.40, 4.60, 4.70, 4.120, 5.190, 6.20, 6.30, 6.40, 6.50, 6.80, 6.100, 6.110, 6.120, 7.30 s 51(xxi): 7.30 s 51(xxvii): 4.10, 4.40, 4.60, 4.70, 6.50 s 51(xxix): 4.10, 5.100 s 51(xxxi): 5.210, 6.130 s 61: 4.1260, 6.60 s 75: 6.140 s 75(v): 4.1460, 5.190, 6.140 s 80: 2.170, 5.210, 6.130, 6.210, 7.50 s 92: 5.210, 6.130, 7.50 s 109: 2.110, 4.20 s 116: 5.210, 6.130, 7.50 s 117: 1.30, 2.10, 2.130, 2.200, 2.220, 4.40, 4.80, 5.210, 6.20, 6.40, 6.130, 7.30 s 122: 4.40, 6.130 s 128: 3.10, 4.80, 7.30

A New Tax System (Family Assistance) Act 1999: 5.70 s (2): 5.70 s 3: 5.70

s s s s s s s s s s s s s s

8: 5.70 21: 1.100 21(1): 5.70 22: 1.100, 5.70 34: 1.100 34(1): 5.70 42: 1.100 42(1): 5.70 44: 1.100 44(1): 5.70 45: 1.100 45(1): 5.70 57G: 1.100 57G(1): 5.70

A New Tax System (Family Assistance) (Administration) Act 1999: 5.260 Pt 6, Div 1: 5.260 Pt 6, Div 3: 5.260 ss 71 to 75: 5.260 s 81: 5.260 s 153: 5.260 s 171: 5.260 s 219TJ: 5.260 s 219TK: 5.260

A New Tax System (Family Assistance and Related Measures) Act 2000: 5.70 Sch 6, cl 7: 5.70

A New Tax System (Goods and Services Tax) Act 1999: 5.90, 5.150, 5.200 Div 57: 5.90, 5.150 Div 83: 5.90 s 9-69: 5.90, 5.150 s 9-99: 5.90 s 13-99: 5.150 s 15-99: 5.150 s 17-99: 5.90, 5.150 s 23-99: 5.90, 5.150 s 25-49: 5.90 s 25-99: 5.150 s 27-99: 5.150 s 29-99: 5.90 s 31-99: 5.150 s 38-188: 5.90 s 38-190: 5.90 s 38-355: 5.90 s 38-570: 5.90 s 48-5: 5.200

xxii Table of Statutes

A New Tax System (Medicare Levy Surcharge – Fringe Benefits) Act 1999: 5.140 s 10: 5.140

ACIS Administration Act 1999: 5.200 s 21: 5.200

Antarctic Treaty Act 1960: 5.100 s 4: 5.100

Antarctic Treaty (Environment Protection) Act 1980: 5.100, 5.140 s 3: 5.100, 5.140 s 4: 5.100 s 19B: 5.140

Administrative Appeals Tribunal Act 1975 s 44: 4.1460

Administrative Decisions (Judicial Review) Act 1977: 4.1460, 4.1470, 5.190, 5.210, 5.220, 5.250, 5.270, 5.280,

Anti-Money Laundering and Counter-Terrorism Financing Act 2006: 5.140 s 6(6): 5.140 s 102: 5.140

6.140 Sch 2, s 13(d)(iii): 5.250 s 3: 4.1460 s 3(4): 4.1460

Anti-Personnel Mines Convention Act 1998: 5.100 s 7: 5.100

s 5: 4.1460, 5.270 s 6: 4.1460, 5.270

Archives Act 1983: 4.1400

s 13: 4.1460, 5.250 s 13A: 4.1460

Australia Act 1986: 4.40

s 14: 4.1460

Australia Council Act 2013: 5.80 Admiralty Act 1988: 5.260 s 5: 5.260

Age Discrimination Act 2004: 5.270 s 3: 5.270

Agricultural and Veterinary Chemicals (Administration) Act 1992: 5.150 s 69B: 5.150

Agricultural and Veterinary Chemicals Code: 5.150, 5.200 Agricultural and Veterinary Chemicals Code Act 1994 Pt 1, Div 4: 5.200 Sch 1: 5.150, 5.200

s 4: 5.80 s 9(1): 5.80

Australia (Request and Consent) Act 1985: 4.40

Australian Broadcasting Corporation Act 1983: 5.70 s 6: 5.70

Australian Capital Territory Representation (House of Representatives) Act 1973: 5.140, 5.220 Australian Capital Territory (Self-Government) Act 1988: 5.180 s 67: 5.180

s 152: 5.150

Air Navigation Act 1920: 5.100, 5.180 s 11A: 5.180 s 27: 5.100

Airports Act 1996: 5.180 s 59: 5.180

Aliens Act 1947: 5.10 Antarctic Marine Living Resources Conservation Act 1981: 5.100 s 3: 5.100 s 5: 5.100

Australian Centre for International Agricultural Research Act 1982: 5.180 s 19: 5.180

Australian Charities and Not-for-profits Commission Act 2012: 5.180 s 140-5(2): 5.180

Australian Citizenship Act 1948: 1.10, 1.40, 1.50, 1.60, 1.110, 2.150, 2.240, 3.10, 3.120, 4.20, 4.40, 4.60, 4.70, 4.90, 4.130, 4.180, 4.190, 4.250, 4.1300, 5.10, 5.60, 5.140, 5.220, 6.40, 6.110, 7.60 Div 2: 4.540

Table of Statutes xxiii Australian Citizenship Act 1948 — cont Pt II: 4.190 Pt III, Div 2: 4.540, 4.1220 Pt III, Div 3: 4.540 Pt III, Div 4: 4.1160 Sch 2: 4.30, 4.410, 4.1300 Sch 2, item 2: 4.410 Sch 2, item 3: 4.410 Sch 2, item 29: 4.410 Sch 2, item 31: 4.410 Sch 2, item 36: 4.410 s 5: 4.150, 4.160, 4.170, 4.260, 4.410 s 5(2): 4.410 s 5(3)(a): 4.260 s 5(3)(b): 4.340, 4.350, 4.730, 4.1310 s 5(3)(e): 4.260, 4.590 s 5(3A): 4.160 s 5(3)(aa): 4.330, 4.550 s 5A: 4.260, 4.600 s 6: 4.170 s 7: 4.160, 4.170, 4.180, 4.190, 4.390, 4.550,

4.560 s s s s s s s s s s s s s s s s s s s s s s

8: 4.160, 4.170, 4.190, 4.680 8(1)(a): 4.170 8(1)(b): 4.170 8(1)(c): 4.170 8(2): 4.170 8(3): 4.170 9: 4.160, 4.190 10: 4.40, 4.250, 4.260, 4.270 10(1): 4.740 10(2): 4.260 10(2)(a): 4.250 10(2)(c): 4.250 10(3): 4.260 10(5): 4.260 10(6): 4.260 10A: 4.300, 4.310, 4.480 10B: 4.410, 4.420, 4.490 10B(1)(b)(ii)(B): 4.410 10B(2): 4.410, 4.420 10B(4): 4.410 10B(5): 4.410 10C: 3.10, 4.410, 4.420, 4.740, 4.1310,

4.1340 s 10(C): 4.390 s 10C(4)(b): 4.410, 4.420, 4.1310 s 10C(4)(d): 4.410 s 10C(5): 4.410 s 10C(5)(d): 4.410 s 11: 4.390, 4.410, 4.420 s 11(1)(a): 4.400 s 11(1)(b): 4.400 s 11(3): 4.410 s 11A: 4.560 ss 11A to 11C: 4.540 s 11B: 4.560 s 11C: 4.560

s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

12: 4.160, 4.190, 4.550, 4.570 12(1)(a): 4.550 12(1)(b): 4.550 12(1)(c): 4.550 12(1)(d): 4.550 12(1)(e): 4.550 12(1)(f): 4.550 12(1A)(a): 4.550 12(1)(aa): 4.550 12(2): 4.550 12(3): 4.550 12(d): 4.550 12(e): 4.550 13: 4.290, 4.530, 4.580, 4.590, 4.770, 4.1220, 4.1470 13(1): 4.550, 4.570 13(1)(c): 4.610 13(1)(d): 4.590, 4.850, 4.940 13(1)(e): 4.780, 4.850, 4.940 13(1)(f): 4.1100 13(1)(g): 4.610 13(1)(h): 4.610 13(1)(j): 4.620 13(3): 4.900 13(3A): 4.900 13(4): 4.780, 4.850 13(4)(a): 4.780 13(4)(b): 4.820, 4.850 13(4)(b)(i): 4.620, 4.850, 4.870, 4.880 13(4)(b)(iv): 4.800 13(5): 4.780, 4.790 13(6): 4.680 13(7): 4.680 13(9): 4.700, 4.730, 4.800 13(9)(a): 4.480 13(9)(c): 4.800 13(11)(g): 4.1140 13(16): 4.780 14: 4.550, 4.580, 4.610, 4.940 14(1): 4.570 14(2): 4.570 14(3): 4.550, 4.570 14(4): 4.570 14(5): 4.570 14(6): 4.570 14(7): 4.570 14(8): 4.570 14(9): 4.570 14A: 4.940 14B: 4.950 14C(1): 4.940 14C(2): 4.940 15: 4.550, 4.580 15(1): 4.950 15(1)(b): 4.550 15(1)(c): 4.550 15(2): 4.550

xxiv Table of Statutes Australian Citizenship Act 1948 — cont s 17: 1.10, 1.30, 3.40, 4.120, 4.200, 4.730, 4.1010, 4.1040, 4.1050, 4.1160, 4.1170, 4.1280, 4.1300, 4.1310, 4.1320, 4.1330, 4.1350, 4.1480, 6.190, 7.60, 7.120, 7.130 s 17(1): 4.1310 s 18: 4.730, 4.1020, 4.1040, 4.1050, 4.1160,

4.1170 18(5): 4.1170 19: 4.980, 4.1040, 4.1050, 20: 4.410, 4.1030, 4.1050, 21: 4.980, 4.1040, 4.1050, 4.1210, 4.1220 s 21(1): 4.1210, 4.1220 s 21(1)(a)(i): 4.1220 s 21(2)(d): 4.610 s 21(2)(e): 4.610 s 21(2)(f): 4.610 s 22(1A): 4.780 s 22A(1A)(f): 4.1240 s 22B(1A)(h): 4.1240 s 23: 4.730, 4.1040, 4.1050, s 23(1): 4.1280 s 23(2): 4.1280 s 23(3): 4.1280 s 23A: 4.1050 s 23A(1): 4.1050 s 23B: 4.1050 s 23D: 4.260, 4.750 s 23D(1A): 4.750 s 23D(1): 4.750 s 23AA: 4.1050 s 23AA(1)(b): 4.1050 s 23AA(1)(b)(ii): 4.1050 s 23AA(1)(b)(iv)(B): 4.1050 s 23AA(1)(b)(v): 4.1050 s 23AA(1)(e): 4.980 s 23AA(2): 4.1050 ss 23AA to 23B: 4.1050 s 23AB: 4.1050 s 25: 4.550 s 25(3): 4.420 s 26: 4.180 s 26(3): 4.180 s 26(4): 4.180 s 26(5): 4.180 s 26(6): 4.180 s 26A: 4.180 s 26A(3): 4.180 s 26A(4): 4.180 s 27: 3.80 s 30(1): 4.180 s 30(2): 4.180 s 31: 4.580 s 33: 4.360 s 34: 4.410 s 37: 4.260 s s s s

4.1160, 4.1260 4.1160, 4.1340 4.1160, 4.1200,

s s s s s s s s s s s s s s s s s s

50: 4.1230, 4.1380 50(1): 4.1200, 4.1230 51: 4.140 51(1): 4.1230 52: 4.20 52A: 4.1310, 4.1470 52A(2): 4.1470 52A(a): 4.1470 52A(b): 4.1470 52A(c): 4.1470 52A(d): 4.1470 52A(e): 4.1470 52A(f): 4.1470 52A(aa): 4.1470 52A(ab): 4.1470 52A(ea): 4.1470 52A(aaa): 4.1470 52A(aaaa): 4.1470

Australian Citizenship Act 1948-1973 s 5(1): 4.160

4.1160, 4.1280

Australian Citizenship Act 1973: 2.150, 4.750 s 29: 4.160

Australian Citizenship Act 1984: 5.140 s 93: 5.140

Australian Citizenship Act 2007: 1.10, 1.20, 1.60, 1.100, 1.110, 1.120, 1.130, 2.150, 2.160, 2.220, 2.240, 3.10, 3.40, 3.50, 3.110, 3.120, 4.10, 4.30, 4.50, 4.70, 4.80, 4.90, 4.1480, 5.10, 5.60, 6.20, 6.80, 6.90, 6.100, 7.10, 7.30, 7.60, 7.80, 7.90, 7.100, 7.120, 7.150 Div 2, subdiv A: 4.1190 Div 2, subdiv AA: 4.1190 Div 3: 4.1160 Pt 2: 4.1120 Pt 2, Div 1: 4.120, 4.200, 4.240 Pt 2, Div 2: 4.200, 4.240 Pt 2, Div 2, subdiv B: 4.1190 Pt 2, Div 5: 4.1120 Pt 2, subdiv A: 4.980 Pt 2, subdiv B: 4.980 Pt 2, subdiv AA: 4.980 Pt III, Div 2: 4.1190 Sch 1: 4.120, 4.410, 4.930, 4.1330, 4.1460 Sch 2: 4.1360 Sch 3: 4.1300 s 2: 4.1180 s 3: 4.270, 4.600, 4.1130 s 4: 4.200 s 5(1): 4.600 s 5(2): 4.600 s 30(5)(a)(ii): 4.1130

Table of Statutes xxv Australian Citizenship Act 2007 — cont s 6A: 4.1130 s 7: 4.270 s 8: 4.430 s 8(2): 4.430 s 10: 1.60, 4.1120 s 10B: 4.1190, 4.1470 s 10C: 4.1190 s 11: 4.1190 s 11(3): 4.20 s 11A: 4.240 s 12: 1.60, 4.240, 4.270, 6.100 s 12(1): 4.50 s 12(1)(a): 4.270, 4.350, 7.80 s 12(1)(b): 4.270, 7.80 s 13: 1.60, 4.240, 4.310, 4.470, 4.480 s 13(1): 7.80 s 13(4)(a): 4.780 s 14: 1.60, 4.240, 4.350, 7.80 s 15: 1.60, 4.240, 4.360 s 16: 1.60, 4.420, 4.440, 4.450, 4.1110, 4.1130, 4.1310, 4.1340, 7.60, 7.80 s 16(2): 4.270, 4.420, 4.450, 4.1060 s 16(2)(a): 4.430 s 16(2)(b)(i): 4.420 s 16(3): 3.50, 4.420, 4.450, 4.1060 s 16(3)(c): 4.420 s 17: 4.450, 4.460, 4.1040, 4.1280, 4.1310, 4.1320, 4.1330, 4.1430, 4.1470 s 17(1): 4.450, 4.1310 s 17(2): 4.450 s 17(3): 4.450, 4.1120 s 17(4): 4.1130 s 17(4A): 4.1130 s 17(4B): 4.1130 s 17(4C): 4.1110 s 17(4) to (4B): 4.450, 4.1130, 4.1140 s 17(5): 4.450, 4.1140 s 19: 4.120 s 19A: 4.460 s 19B: 4.500 s 19C: 1.60, 4.310, 4.470, 4.500, 4.510, 4.520, 4.710, 4.1110, 7.60, 7.80 s 19C(2): 4.520, 4.1060 s 19C(2)(a): 4.500 s 19C(2)(b): 4.500 s 19C(2)(c): 4.500 s 19C(2)(d): 4.500 s 19C(2)(e): 4.500 s 19C(2)(f): 4.500 s 19C(3): 4.500 s 19D: 4.520, 4.1430, 4.1470 s 19D(7A): 4.230, 4.1110, 4.1130 s 19D(1): 4.520 s 19D(2): 4.520 s 19D(3): 4.230, 4.450, 4.520 s 19D(4): 4.520, 4.1120 s 19D(5): 4.1130

ss 19D(5) to (7A): 4.520, 4.1130, 4.1140 s 19D(6)(a)(i): 4.1130 s 19D(6)(a)(ii): 4.1130 s 19D(6)(b): 4.1130 s 19D(7): 4.1130 s 19D(8): 4.520, 4.1140 s 19F: 4.120 s 20: 4.1030, 4.1340 s 21: 1.10, 1.60, 4.290, 4.530, 4.610, 4.700, 4.720, 4.770, 4.800, 4.900, 4.910, 4.920, 4.930, 4.1110, 4.1150, 4.1220, 4.1470, 7.80 s 21(1): 4.530 s 21(1A): 4.1220 s 21(2): 1.10, 4.530, 4.590, 4.610, 4.620, 4.630, 4.640, 4.650, 4.680, 4.700, 4.760, 4.810, 4.860, 4.910, 4.950, 4.1060, 4.1150 s 21(2)(a): 1.60, 4.600, 4.830, 4.880 s 21(2)(b): 1.60, 4.600, 4.830, 4.880 s 21(2)(c): 1.60, 4.620, 4.760, 4.900 s 21(2)(d): 1.60, 4.610, 4.640, 4.650, 4.830,

4.880 ss 21(2)(d) to (f): 4.610 s 21(2)(e): 1.60, 4.610, 4.640, 4.650, 4.830,

4.880 s 21(2)(f): 1.60, 4.610, 4.640, 4.650, 4.830,

4.880 s 21(2)(g): 1.60, 4.620, 4.830, 4.880 s 21(2)(h): 1.60, 4.830, 4.880 s 21(2A): 1.60, 4.530, 4.590, 4.610 ss 21(2) to (4): 4.700 s 21(3): 4.530, 4.640, 4.650, 4.660, 4.670, 4.680, 4.700, 4.760, 4.810, 4.860, 4.910, 4.950, 4.1060, 4.1150 s 21(3)(a): 4.830, 4.880 s 21(3)(b): 4.830, 4.880 s 21(3)(c): 4.760, 4.900 s 21(3)(d): 4.640, 4.650, 4.830, 4.880 s 21(3)(e): 4.830, 4.880 s 21(3)(f): 4.830, 4.880 ss 21(3) to (8): 4.530 s 21(4): 4.530, 4.680, 4.700, 4.760, 4.810, 4.860, 4.910, 4.950, 4.1060, 4.1150 s 21(4)(a): 4.680, 4.830, 4.880 s 21(4)(b): 4.830, 4.880 s 21(4)(c): 4.830, 4.880 s 21(4)(d): 4.760, 4.900 s 21(4)(e): 4.830, 4.880 s 21(4)(f): 4.830, 4.880 s 21(5): 1.10, 1.130, 3.90, 4.200, 4.220, 4.230, 4.270, 4.470, 4.480, 4.530, 4.690, 4.700, 4.710, 4.720, 4.730, 4.800, 4.910, 4.950, 4.1470, 4.1480, 7.30, 7.60, 7.80, 7.90, 7.100 s 21(5)(b): 4.690

xxvi Table of Statutes Australian Citizenship Act 2007 — cont s 21(6): 1.10, 4.200, 4.530, 4.700, 4.730, 4.910, 4.930, 4.1040, 4.1060, 4.1310,

7.60 s 21(7): 1.10, 4.200, 4.530, 4.700, 4.740, 4.910, 4.930, 4.1060, 6.110, 7.60 s 21(8): 4.450, 4.530, 4.750, 4.910, 4.930, 4.1130, 4.1470, 7.80 s 21(8)(d): 4.750 s 21(8)(e): 4.750 s 22: 4.590, 4.620, 4.770, 4.790, 4.810,

4.860 s 22(1): 4.770 s 22(1)(a): 4.760, 4.780, 4.800 s 22(1)(b): 4.760, 4.790, 4.800 s 22(1)(c): 4.800 s 22(1A): 4.780 ss 22(1A) to (11): 4.770 s 22(1B): 4.800 s 22(1C): 4.780 s 22(2)(a): 4.780, 4.790 s 22(2)(b): 4.780, 4.790 ss 22(3) to (4): 4.790 s 22(4A): 4.230, 4.790 s 22(5): 4.230, 4.800 s 22(5A): 4.230, 4.780 s 22(6): 4.230, 4.800 s 22(9): 4.220, 4.230, 4.800, 4.910, 4.1150 s 22(9)(d): 4.800 ss 22(9) to (10): 4.800 s 22(10): 4.800 s 22(11): 4.230, 4.800, 4.910, 4.1150 s 22(12): 4.800 s 22A: 4.590, 4.620, 4.760, 4.810, 4.820, 4.840, 4.860, 4.870, 4.880, 4.890, 4.910, 4.1150 s 22A(1A): 4.830, 4.910, 4.1240, 4.1470 s 22A(1A)(a): 4.830 s 22A(1A)(b): 4.830 s 22A(1A)(c): 4.830, 4.840 s 22A(1A)(d): 4.830, 4.840 s 22A(1A)(e): 4.830 s 22A(1A)(e)(i): 4.830 s 22A(1A)(e)(ii): 4.830 s 22A(1A)(f): 4.830 s 22A(5A): 4.840 s 22A(1): 4.810, 4.830 s 22A(1)(a)(i): 4.820 s 22A(1)(a)(ii): 4.820, 4.850 s 22A(1)(b): 4.820 s 22A(1)(c): 4.840 s 22A(1)(d): 4.830 s 22A(1)(e): 4.830 s 22A(1)(f): 4.830, 4.840 s 22A(1)(g): 4.830, 4.840 s 22A(2): 4.840 s 22A(3): 4.230, 4.840 s 22A(4): 4.230, 4.840

s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

22A(5): 4.230, 4.840 22A(6): 4.830 22A(8): 4.830 22A(9): 4.830 22B: 4.590, 4.620, 4.760, 4.860, 4.870, 4.880, 4.890, 4.910, 4.1150 22B(1A): 4.880, 4.910, 4.1240, 4.1470 22B(1A)(a): 4.880 22B(1A)(b): 4.870, 4.880 22B(1A)(c): 4.880 22B(1A)(d): 4.880, 4.890 22B(1A)(e): 4.880, 4.890 22B(1A)(f): 4.880, 4.890 22B(1A)(g): 4.880 22B(1A)(g)(i): 4.880 22B(1A)(g)(ii): 4.880 22B(1A)(h): 4.880 22B(5A): 4.890, 4.940 22B(1): 4.860, 4.880 22B(1)(a): 4.870 22B(1)(b)(i): 4.870 22B(1)(b)(ii): 4.870 22B(1)(c): 4.880, 4.890 22B(1)(d): 4.880 22B(1)(e): 4.880 22B(1)(f): 4.880, 4.890 22B(1)(g): 4.880, 4.890 22B(2): 4.890 22B(3): 4.230, 4.890 22B(4): 4.230, 4.890 22B(5): 4.230, 4.890 22B(6): 4.880 22B(8): 4.880 22B(9): 4.880 22C: 4.820, 4.870 23: 4.590, 4.620, 4.760, 4.900 23(1): 4.900 23(2): 4.900 23(2)(a): 4.900 23(3): 4.900 23(3)(a): 4.900 23(4): 4.900 23A: 1.60, 4.610 23A(1): 4.1430 23D(3A): 4.1220 23AA(1)(b)(iv)(B): 4.1050 24: 4.910, 4.950, 4.1430, 4.1470, 5.70 24(1): 4.910 24(1A): 1.130, 4.910 24(2): 1.130, 4.220, 4.230, 4.450, 4.700,

s s s s s s

24(2A): 4.910 24(3): 4.910, 4.950, 4.1120 24(4): 4.950, 4.1130 24(4A): 4.950, 4.1130 24(4A)(a)(i): 4.1130 24(4A)(a)(ii): 4.1130

s s s s s

4.750

Table of Statutes xxvii Australian Citizenship Act 2007 — cont s 24(4A)(b): 4.1130 s 24(4B): 4.1130 s 24(4C): 4.230, 4.750, 4.1130 s 24(4D): 4.1130 ss 24(4) to (4C): 4.1130, 4.1140 ss 24(4) to (4D): 4.910 s 24(5): 4.620, 4.640, 4.680, 4.910, 4.1150 s 24(6): 4.910 s 24(6)(a): 4.910, 4.1150 ss 24(6)(b) to (d): 4.910, 4.1150 ss 24(6)(e) to (g): 4.910, 4.1150 s 24(6)(f): 4.910 ss 24(6)(f) to (j): 4.1110 s 24(6)(g): 4.910 s 24(6)(h): 4.910, 4.1150 s 24(7): 4.910, 4.1140 s 24(i): 4.910 s 24(j): 4.910 s 25: 4.230, 4.720, 4.950, 4.1090, 4.1470 s 25(1): 4.1090 s 25(1A): 4.950 s 25(2): 4.950 s 25(4): 4.720, 4.950, 7.80 s 25(5): 4.950 s 26: 4.100, 4.920 s 26(1): 4.120, 4.930 s 26(2): 4.120 s 26(3): 4.230, 4.940, 4.950 s 26(3)(c): 4.940 s 26(4): 4.940 s 26(5): 4.230, 4.940 s 27: 4.120, 4.920 ss 27(3) to (5): 4.930 s 28: 4.120, 4.920, 4.950 s 28(1): 4.920 s 28(2): 4.120, 4.920 s 28(3): 4.920 ss 28(3) to (4): 4.120 ss 28A to 32: 4.730, 4.960 s 29: 1.60, 4.970, 4.980, 4.990, 4.1050, 4.1110, 4.1170, 4.1330 s 29(2): 4.1060 s 29(2)(a): 4.990 s 29(2)(a)(i): 4.990 s 29(2)(a)(ii): 4.1000 s 29(2)(b): 4.980 s 29(3): 4.990, 4.1060, 4.1310 s 29(3)(a)(i): 4.1010 s 29(3)(a)(ii): 4.1020 s 29(3)(b): 4.980, 4.990 s 29(3)(iv): 4.1040 s 29(3)(iii): 4.1030 s 30: 4.970, 4.1430, 4.1470 s 30(1A): 4.970 s 30(2): 4.230, 4.450, 4.970 s 30(3): 4.970, 4.1120 s 30(4): 4.1130

ss 30(4) to (7): 4.970, 4.1130 s 30(5)(a)(i): 4.1130 s 30(5)(b): 4.1130 s 30(6): 4.1130 s 30(7): 4.230, 4.1130 s 30(8): 4.1110 ss 30(8) to (9): 4.970 s 31: 4.970 s 32: 4.120, 4.1190, 4.1360 s 32(1): 4.970 s 32(2): 4.970 s 32(3): 4.970 s 33: 4.990, 4.1000, 4.1160, 4.1170, 4.1280,

7.80 s 33(3): 4.1170 s 33(3)(a): 4.1170 s 33(3)(b): 4.1170 s 33(4): 4.1120, 4.1170 s 33(5): 4.230 s 33(6): 4.1170 s 33(8): 4.1170 s 33A: 4.460, 4.980, 4.1190, 4.1280 s 33AA: 4.1160, 4.1180, 4.1280 s 33AA(2): 4.1180 s 33AA(3): 4.1180 s 33AA(4): 4.1180 s 33AA(7): 4.1180 s 33AA(9): 4.1180 ss 33AA(10) to (12): 4.1180 ss 33AA(13) to (19): 4.1180 s 33AA(14): 4.980, 4.1180 s 33AA(15): 4.1180 s 33AA(22): 4.1180 s 33AA(24): 4.980, 4.1180 s 34: 4.230, 4.980, 4.1000, 4.1160, 4.1190, 4.1200, 4.1210, 4.1220, 4.1280, 4.1360, 7.80 s 34(1): 4.1200 s 34(1)(b)(i): 4.1190, 4.1220 s 34(1)(b)(ii): 4.1190 s 34(1)(c): 4.1190 s 34(2): 4.1200 s 34(2)(b)(i): 4.1190, 4.1220 s 34(2)(b)(ii): 4.1190 s 34(2)(b)(iii): 4.1190 s 34(2)(b)(iv): 4.1190 s 34(2)(c): 4.1190 s 34(3): 4.1190 s 34(4): 4.1190 s 34(5): 4.1190, 4.1220 s 34(6): 4.1190, 4.1220 s 34(7): 4.1190 s 34(8): 4.1190, 4.1220 s 34A: 4.830, 4.880, 4.980, 4.1000, 4.1160, 4.1240, 4.1280, 4.1360, 7.80 s 34A(1)(c)(i): 4.1240 s 34A(1)(c)(ii): 4.1240

xxviii

Table of Statutes

Australian Citizenship Act 2007 — cont s 34A(2): 4.1240 s 34A(3): 4.1240 s 34A(4): 4.1240 s 34AA: 4.1190, 4.1280 s 35: 4.980, 4.1160, 4.1250, 4.1260, 7.80 s 35(1)(a): 4.1250, 7.80 s 35(1)(b): 4.1250, 7.80 s 35(1)(c): 4.1250, 7.80 ss 35(5) to (7): 4.1250, 7.80 ss 35(8) to (14): 4.1250, 7.80 s 35(9): 4.980, 4.1250, 7.80 s 35(10): 4.1250, 7.80 s 35(17): 4.1250, 7.80 s 35(19): 4.980, 4.1250, 7.80 s 35A: 4.980, 4.1160, 4.1270, 4.1280 s 35A(1): 4.1270 s 35A(1)(e): 4.1270 s 35A(2): 4.1270 s 35A(3): 4.1270 ss 35A(5) to (7): 4.1270 s 35A(8): 4.980, 4.1270 s 35A(9): 4.980, 4.1270 s 35A(11): 4.1270 s 35B: 4.1180, 4.1250, 7.80 s 35B(2): 4.1270 s 35AA: 4.1160, 4.1260 s 35AB: 4.1180, 4.1250, 7.80 s 36: 4.230, 4.730, 4.1000, 4.1160, 4.1170, 4.1190, 4.1240, 4.1280, 4.1360, 7.80 s 36(1)(a): 4.1280 s 36(1)(b): 4.1280 s 36(1)(d): 4.1280 s 36(2): 4.1280 s 36(3): 4.1280 s 36A: 4.980, 4.1180, 4.1250, 4.1270, 7.80 s 37: 4.230, 4.270, 4.1360, 4.1390 s 37(2): 4.1360 s 37(4): 4.1120, 4.1360 s 37(5): 4.1360 s 37(6): 4.1360 s 38: 4.230, 4.1390 s 38(1): 4.1360 s 38(2): 4.1360 s 38(3): 4.1360 s 38(4): 4.1360, 4.1370, 4.1390 s 39: 4.1360, 4.1370, 4.1390 s 40: 4.230, 4.1120 s 40(2): 4.1120 s 42: 4.1360, 4.1370, 4.1400 ss 42 to 45: 4.1120 s 43: 4.1360, 4.1370, 4.1400 s 44: 4.1360, 4.1370, 4.1400 s 44(1): 4.1400 s 44(2): 4.1400 s 44A: 4.1360 s 45: 4.1360, 4.1370, 4.1400 ss 45A to 45D: 4.1410

s s s s s s s s

46: 4.610, 4.1360, 4.1420 46(1): 4.1420 46(2A): 4.720 46A: 4.1360 47: 4.1360, 4.1430 47(5): 4.1430 48: 4.1430 50: 4.1100, 4.1190, 4.1200, 4.1220, 4.1370,

s s s s s s s s s s s s s s s s s s s s s s s

50(1): 4.1230 52: 4.1360, 4.1470 52(1)(c): 4.940 52(2): 4.1470 52(3): 4.1470 52(4): 4.1470 52A: 4.760, 4.1470 52A(a): 4.1470 52A(b): 4.1470 52A(c): 4.1470 52A(d): 4.1470 52A(e): 4.1470 52A(f): 4.1470 52A(aa): 4.1470 53: 4.1430 53(1): 4.1430 53A: 4.1430 54: 4.1440 93(8AA): 4.780 234: 4.1190 236: 4.1190 243: 4.1190 244: 4.1190

4.1380

Australian Citizenship Amendment Act 1984: 1.50, 2.150, 2.180, 4.140, 4.150, 4.190, 5.60 s 10C: 4.410 s 10C(4)(c)(ii): 4.410 s 11: 4.580

Australian Citizenship Amendment Act 1986 s 4: 4.40, 4.50 s 11: 4.30

Australian Citizenship Amendment Act 1990: 4.410 Australian Citizenship Amendment Act 1993 s 3: 1.60

Australian Citizenship Amendment (Allegiance to Australia) Act 2015: 1.10, 1.60, 4.70, 4.980, 4.1160, 4.1180, 4.1260, 4.1270, 4.1280, 4.1320, 4.1480, 4.1330, 6.120, 7.30, 7.60, 7.120

Table of Statutes Australian Citizenship Amendment (Allegiance to Australia) Act 2015 — cont Sch 1: 4.1160, 4.1280 s 4: 7.60

Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009: 4.810, 4.860

xxix

Australian Citizenship Regulations 2007: 4.160, 4.210, 4.1120, 4.1360, 4.1420, 4.1430, 4.1440 Sch 3: 4.1360, 4.1420 reg 6A: 4.900 reg 7: 4.950 reg 8: 4.120, 4.930

Sch 1: 4.610, 4.700

reg 9: 4.970

Sch 1, s 3: 4.650

reg 11: 4.1120 regs 11(a) to (e): 4.1120

Australian Citizenship Amendment (Citizenship Testing) Act 2007: 4.610

reg 11(f): 4.1120 reg 11(g): 4.1120 reg 12: 4.400

Australian Citizenship Amendment (Defence Families) Act 2012 Sch 1: 4.900

Australian Citizenship Amendment (Intercountry Adoption) Act 2015: 4.500

Australian Citizenship Amendment (Special Residence Requirements) Act 2013: 4.830, 4.880, 4.1240

reg 14: 4.1430

Australian Citizenship (Transitionals and Consequentials) Act 2007: 1.10 Australian Civilian Corps Act 2011: 5.180 s 19(4)(b): 5.180

Australian Federal Police Act 1979: 5.180 s 24(2): 5.180 s 24(4): 5.180 s 24(5): 5.180

Australian Citizenship Legislation Amendment Act 2002: 4.410, 4.1320, 4.1330 Sch 1: 4.1160

Australian Hearing Services Act 1991: 5.70 s 8: 5.70

Sch 2, item 1: 4.900 Sch 2, item 4: 4.900 Sch 2, item 26: 4.980 Sch 2, item 27: 4.1050 Sch 2, item 35: 4.1050 Sch 2, item 37: 4.900 Sch 2, item 42: 4.980

Australian Citizenship Regulations 1960: 4.410 Sch 2: 4.410 reg 3: 4.410 reg 5: 4.600 reg 7: 4.410 reg 7H: 3.50 regs 7A to 7H: 4.410 reg 8: 4.1360 reg 8A: 4.410 reg 8B: 4.410

Australian Human Rights and Equal Opportunity Commission Act 1986: 5.270 s 11: 5.270

Australian Institute of Marine Science Act 1972: 4.20 Australian Law Reform Commission Act 1996: 5.250 s 24: 5.250

Australian National Preventive Health Agency Act 2010: 5.180 s 31: 5.180

Australian Participants in British Nuclear Tests (Treatment) Act 2006: 5.70 s 7: 5.70

reg 8C: 4.410 reg 9: 4.580 reg 18: 4.1360

Australian Passports Act 2005: 5.100, 5.210, 5.220, 5.260, 5.310, 7.90

reg 19: 4.1360

s 5: 5.100

reg 21A: 4.600

s 7: 5.220

reg 23(3): 4.1360

s 18: 5.260

xxx Table of Statutes

Australian Securities and Investments Commission Act 2001: 5.100 s 12AC: 5.100

Australian Security Intelligence Organisation Act 1979: 4.1130, 5.220, 5.250 s 4: 4.1130 s 27A: 5.220 s 35: 4.1130 s 36: 5.250

Australian Sports Anti-Doping Authority 2006: 5.180 s 27: 5.180 s 33: 5.180

Chemical Weapons (Prohibition) Act 1994: 5.100 s 5: 5.100

Child Support (Assessment) Act 1989: 5.70 s s s s s s s

12: 5.70 24: 5.70 25: 5.70 25A: 5.70 29A: 5.70 29B: 5.70 83: 5.70

Child Support (Registration and Collection) Act 1988: 5.70 s 25C: 5.70

Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Act 2006: 5.80 s 6: 5.80

Australian Sports Commission Act 1989: 5.80 s 6: 5.80 s 7: 5.80

Aviation Transport Security Act 2004: 5.100 s 9: 5.100

Banking Act 1959: 5.100 s 39(2): 5.100

Bankruptcy Act 1966: 5.120, 5.220, 5.260 s s s s s s s s

7: 5.260 43: 5.120 55(2A): 5.120 56A: 5.220 57(2A): 5.120 188: 5.220 244(6): 5.120 247(2): 5.120

Border Protection Act 2001: 7.120 Border Protection (Validation and Enforcement Powers) Act 2001: 7.120 Broadcasting Services Act 1992: 5.80,

Christmas Island Act 1958: 4.250 Christmas Island Amendment Act 1980 s 15A: 4.250

Circuit Layouts Act 1989: 5.220 s 5: 5.220

Citizenship Act 1969: 1.50, 4.160 Citizenship Regulations reg 5(2)(b): 4.160

Civil Aviation Act 1988: 5.140 s 22: 5.140

Civil Aviation (Carriers’ Liability) Act 1959: 5.220 s 12(6): 5.220 s 35(6): 5.220

Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012: 5.180 s 10: 5.180 s 15: 5.180

Cocos (Keeling) Islands Act 1955: 4.250 Cocos (Keeling) Islands Amendment Act 1979: 4.250

5.220 Div 2A: 5.80 Sch 5: 5.220 Sch 7: 5.220 s 25: 5.220 s 41: 5.220 s 103B: 5.80

Commonwealth Electoral Act 1918: 1.20, 1.80, 2.210, 2.220, 3.120, 4.780, 5.140, 5.180, 5.210, 5.220, 5.310, 6.170, 6.180, 6.190, 7.90, 7.130 s 84: 1.80 s 93: 1.80, 5.140, 5.180, 5.220, 7.90

Table of Statutes xxxi Commonwealth Electoral Act 1918 — cont s 93(1): 4.140 s 93(1)(b): 5.140 s 93(1)(b)(ii): 6.170

Consular Privileges and Immunities Act 1972: 5.90 s 7: 5.90 s 10: 5.90

s 93(8): 4.120, 6.190 s 93(8AA): 4.120, 6.180, 6.190 s 93(b): 1.80 ss 93 to 97: 4.190 s 94: 1.80, 5.180, 6.190, 7.120, 7.130 s 94A: 1.80, 5.180, 6.190, 7.120, 7.130 s 95: 1.80, 5.180 s 96: 6.190 s 99A: 5.180 s 99B: 5.180 s 101: 5.140 s 163: 1.80, 5.180 s 193: 1.80, 5.180 s 208(2)(c): 6.180

Commonwealth Electoral Act 1924: 6.170

Copyright Act 1968: 5.220 s s s s s s

32: 5.220 84: 5.220 184: 5.220 211: 5.60, 5.220 220: 5.60, 5.220 248U: 5.220

Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004: 5.180 s 324BB(5): 5.180

Corporations (Aboriginal and Torres Strait Islander) Act 2006: 5.180 s 399-75(1): 5.180

s 128A(1): 6.170

Commonwealth Electoral (War-time) Act 1917: 6.190 Commonwealth Franchise Act 1902 s 4: 3.40

Commonwealth Serum Laboratories Act 1961: 5.180 s 19C: 5.180

Companies Act 1981: 5.180 s 18(4): 5.180 s 20(5): 5.180 s 30D: 5.180 s 219: 5.180 s 236: 5.180

Companies (Foreign Takeovers) Act 1972: 5.170

Compensation (Japanese Internment) Act 2001: 5.70 s 4: 5.70

Competition and Consumer Act 2010: 5.100, 5.220 s 5: 5.100 s 10.02: 5.220

Corporations Act 2001: 5.140, 5.180, 5.220, 5.260 s 5: 5.260 s 9A: 5.220 s 201A: 5.180 s 204A: 5.180 s 324BB(5): 5.180 s 342AB(1): 5.260 s 601CE: 5.180 s 601CG: 5.180 s s s s s s s s

601CM(2) to (5): 5.140 661CV: 5.140 1042B: 5.260 1200J: 5.140 1215: 5.180 1280: 5.180 1282: 5.180 1292: 5.180

Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014: 4.1410 Crimes Act 1914: 4.1220, 5.230 s 4C: 4.1220 s 23P: 5.230 s 24AA: 4.1270 s 24AB: 4.1270 s 29B: 4.1230 Pt II: 4.1130 Pt VII: 4.1130

Pt X: 5.220

Crimes (Aviation) Act 1991: 5.100, 5.140, Comprehensive Nuclear Test-Ban Treaty Act 1998: 5.100 s 9: 5.100

5.260 s 12: 5.100, 5.260 s 13: 5.140

xxxii

Table of Statutes

Crimes (Aviation) Act 1991 — cont s 14: 5.140 s 25: 5.140 s 26: 5.140

Crimes (Biological Weapons) Act 1976: 5.100 s 5: 5.100

Crimes (Currency) Act 1981: 5.140, 5.260 s 5: 5.260 s 23: 5.140

Crimes (Foreign Incursions and Recruitment) Act 1978: 5.140 s 6: 4.1270, 5.140 s 7: 4.1270, 5.140

Crimes (Hostages) Act 1989: 5.100, 5.140, 5.250, 5.260 s 5: 5.100, 5.260 s 8: 5.140 s 15: 5.250

Crimes (Internationally Protected Persons) Act 1976: 5.250, 5.260 s 5: 5.260 s 11: 5.250

Crimes (Overseas) Act 1964: 5.100 s 3: 5.100 s 3A: 5.100 s 3B: 5.100

Crimes (Ships and Fixed Platforms) Act 1992: 5.260 s 5: 5.260

Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990: 5.160 s 12: 5.160

Crimes at Sea Act 1979: 5.140 s 8: 5.140 s 11: 5.140

Crimes at Sea Act 2000: 5.140 s 6: 5.140

Criminal Code: 4.780, 4.1180, 4.1260 s 15.2: 5.100 s 80.1: 4.1270 s 80.1AA: 4.1270 s 91.1: 4.1270 s 102.8: 4.1270 s 105: 4.1270

s 134.1: 4.1190, 4.1220 s 134.2: 4.1190, 4.1220 s 135.1: 4.1190, 4.1220 s 135.2: 4.1190, 4.1220 s 135.4: 4.1190, 4.1220 s 136.1: 4.1190, 4.1220 s 137.1: 4.1190, 4.1220 s 137.2: 4.1190, 4.1220 s 139.1: 4.1190 s 141.1: 4.1190 s 142.1: 4.1190 s 142.2: 4.1190 s 144.1: 4.1190 s 145.1: 4.1190 s 145.2: 4.1190 s 145.4: 4.1190 s 145.5: 4.1190 s 149.1: 4.1190 Pt 5.1: 4.1130 Pt 5.2: 4.1130 Pt 5.3: 4.1130, 4.1270 Pt 5.5: 4.1270 Div 72: 4.1130 Div 72, subdiv A: 4.1270 Div 104: 4.1270

Criminal Code Act 1995: 4.1220, 5.120, 5.140, 5.260 Sch: 5.120 Sch, Div 15: 5.120, 5.140 Sch, Div 16: 5.120, 5.140 s 70.5: 5.140 s 71.16: 5.120 s 71.21: 5.120 s 80.1A: 5.260 s 272.6: 5.140 s 273.2: 5.140

Customs Act 1901: 5.140, 5.200 s 4: 5.140 s 175(3A): 5.140 s 205B: 5.200

Customs Tariff Act 1995: 5.90 Sch 4, item 24: 5.90

Defence Act 1903: 1.100, 2.210, 5.140, 5.220, 5.230 s s s s s s s

34: 1.100 59: 1.100, 5.140 61A: 1.100 61A(1): 1.100 61C: 1.100 116F: 5.220 123H: 5.230

Defence Service Homes Act 1918: 5.70

Table of Statutes xxxiii Defence Service Homes Act 1918 — cont s 4: 5.70

Defence Trade Controls Act 2012: 5.180 s 27: 5.180

Defence (Visiting Forces) Act 1963: 5.220 s 8(2): 5.220

Development Allowance Authority Act 1992: 5.70 s 93I(4A): 5.70 s 93I(4B): 5.70 s 93ZAA: 5.70

Diplomatic Privileges and Immunities Act 1967: 5.90, 5.220 s 9: 5.90 s 11: 5.90, 5.220

Disability Discrimination Act 1992: 5.270 s 3: 5.270

Disability Services Act 1986: 5.70 s 21: 5.70

Education Services for Overseas Students Act 2000: 5.180, 5.230 s 9AB: 5.180 s 16: 5.180 s 101: 5.230

Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004: 6.180 Electoral and Referendum (Electoral Integrity and Other Measures) Act 2006: 6.180 Environment Protection and Biodiversity Conservation Act 1999: 5.90, 5.100, 5.140, 5.220 s 5: 5.100, 5.220 s 224: 5.100, 5.220 s 354A: 5.140 s 475: 5.220 s 487: 5.220 Sch 1: 5.90

Environment and Heritage Legislation Amendment Act (No 1) 2006: 5.160 s 8: 5.160 s 13: 5.160

Export Market Development Grants Act 1997: 5.70

s s s s s s s s

6: 5.70 7(1): 5.70 25: 5.70 37(d): 5.70 37(da): 5.70 42: 5.70 85: 5.70 89: 5.70

Extradition Act 1988: 5.190, 5.270, 6.150 s s s s

3: 5.270 3(a): 5.190 6: 5.270 21(1)(a): 5.190

Fair Entitlements Guarantee Act 2012: 5.70 s 10: 5.70

Families, Community Services and Indigenous Affairs and Other Legislation (2006 Budget and Other Measures) Act 2006: 5.70 s 1061K: 5.70

Family Law Act 1975: 4.430, 5.120, 5.190, 5.240, 5.270, 5.300, 6.150, 6.230 s s s s s s s s s s

39: 5.120, 7.30 39A: 5.120 60H: 4.430 60CC(3)(a): 7.90 60HB: 4.430 69E: 5.120 104(3): 5.240 111C: 5.120 111CK: 5.120 111CW: 5.120

Family Law (Bilateral Arrangements – Intercountry Adoption) Regulations 1998: 4.500 Family Law (Child Abduction Convention) Regulations 1986: 5.270, 5.300

Family Law (Hague Convention on Intercountry Adoption) Regulations 1998: 4.500 reg 16: 4.500 reg 17: 4.500

Farm Household Support Act 2014: 5.70, 5.140 s 8: 5.70 s 9: 5.70 s 42: 5.140

xxxiv

Table of Statutes

Farm Household Support Act 2014 — cont s 43: 5.140

Federal Court of Australia Act 1976 s 41: 2.170

Fisheries Act 1952: 5.230 s 12S: 5.230 s 16A: 5.230

Fisheries Management Act 1991: 5.100, 5.250 Sch 1A, item 1: 5.250 Sch 1A, item 8: 5.250 Sch 1A, item 13: 5.250 s 8: 5.100 s 13: 5.100 s 102(3)(b): 5.250

Fishing Legislation Amendment Act 1984: 5.230

Foreign Acquisitions and Takeovers Act 1975: 5.170, 5.260 s 17: 5.260 ss 19 to 21: 5.170

Health Insurance Act 1973: 5.70, 5.180 s s s s s s s s

3(1): 5.70 3D: 5.180 3E: 5.180 3DB: 5.180 3DC: 5.180 10: 5.70 19AA: 5.70 19AB: 5.70

Health Insurance Regulations 1975 Sch 4, Pt 1: 4.870

Hearing Services Administration Act 1997: 5.70 s 5: 5.70

Higher Education Funding Act 1988: 5.70 s s s s s s

41(3): 5.70 98B: 5.70 98D: 5.70 98V: 5.70 98X(3): 5.70 101: 5.70

Higher Education Support Act 2003: 5.70, 7.90

Foreign Proceedings (Excess of Jurisdiction) Act 1984: 5.140 s 7: 5.140 s 10: 5.140 s 11: 5.140 s 13: 5.140

Foreign States Immunities Act 1985: 5.90 s 12: 5.90

Freedom of Information Act 1982: 4.1120, 4.1450, 5.210, 5.270 s 3: 5.270

Fringe Benefits Tax Assessment Act 1986:

s 43: 5.70 s 44: 5.70 s 90-1: 5.70 s 90-5: 5.70 s 90.5: 7.90 s 104-1: 5.70 s 104-5: 5.70 s 104.5: 7.90 s 118-1: 5.70 s 118-5: 5.70 s 118.5: 7.90 s 126-1: 5.70 s 126-5: 5.70 s 126.5: 7.90 Sch 1A, s 44: 7.90

5.150 s 100: 5.150

Human Rights Commission Act 1981: 5.270

Fuel Quality Standards Act 2000: 5.220 s 65: 5.220 s 70: 5.220

Human Rights (Sexual Conduct) Act 1994: 5.270 s 4: 5.270

Great Barrier Reef Marine Park Act 1975: 5.70, 5.260 s 5: 5.260 s 38HC: 5.70

Hazardous Waste (Regulation of Exports and Imports) Act 1989: 5.220 s 58A: 5.220

Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986: 5.270 Immigration (Education) Act 1971: 5.250 s 4A: 5.250

Table of Statutes xxxv

Immigration (Education) Charge Act 1992: 5.160 s 5: 5.160 s 7: 5.160

Immigration (Guardianship of Children) Act 1946: 5.250 s 4AAA: 5.250

s 6: 5.140

International Shipping (Australian-Resident Seafarers) Grant Act 1995: 5.70 s 10: 5.70

International Tax Agreements Act 1953: 5.250

Immigration Restriction Act 1901: 3.100, 4.20

Income Tax Assessment Act 1936: 5.110, 6.240 s 6: 5.110

International Transfer of Prisoners Act 1997: 5.250 s 13: 5.250

Judiciary Act 1903: 5.250, 5.260 s 29: 5.250

Income Tax Assessment Act 1997: 5.110 s 4-1: 5.110

Income Tax Rates Act 1986: 5.110

s 39B: 4.1460 s 47: 5.260 s 68: 2.170 s 77D: 2.170

Independent National Security Legislation Monitor Act 2010: 1.10

Jury Exemption Act 1965

Inspector of Transport Security Act 2006:

Law Reform Commission Act 1973: 5.250

5.120 s 23: 5.120

Inspector-General of Intelligence and Security Act 1986: 5.220 s 8(2): 5.220 s 8(4): 5.220 s 8(c): 5.220

Insurance Act 1973: 5.180, 5.200 s s s s s s

49G: 5.180 52(5): 5.180 62A: 5.180 79(5): 5.180 95: 5.200 118: 5.180, 5.200

Intelligence Services Act 2001: 4.1130, 5.120 s 9: 5.120 s 13B: 5.120

Interactive Gambling Act 2001: 5.220 s 19: 5.220

International Arbitration Act 1974: 5.250 s 7(1)(b): 5.250 s 7(2): 5.250 s 8: 5.250

s 4: 2.170

Life Insurance Act 1995: 5.250 s 18: 5.250

Loans Securities Act 1919: 5.90 s 6B: 5.90

Loans (Taxation Exemption) Act 1978: 5.90 s 4(2): 5.90

Maritime Powers Act 2013: 5.120 s 8: 5.120

Marriage Act 1961: 5.180, 5.250 s 10(2): 5.250 s 11: 5.250 s 12: 5.250 s 29: 5.180 s 76: 5.250 s 77: 5.250 s 78: 5.250 s 84: 5.250 s 85: 5.250 s 88D: 5.250 s 88D(2)(b): 5.250 s 88D(3): 5.250 s 88E: 5.250 s 88E(2): 5.250

International Organisations (Privileges and Immunities) Act 1963: 5.140

s 89(3): 5.250 s 91: 5.250

xxxvi

Table of Statutes

Marriage Amendment Act 1985 s 23: 5.250

Medibank Private Sale Act 2006: 5.180 s 47: 5.180

Migration Act 1958: 1.20, 1.30, 1.90, 1.110, 2.210, 2.230, 3.20, 4.30, 4.40, 4.100, 4.260, 4.270, 4.600, 4.710, 4.770, 4.900, 4.940, 4.1070, 4.1190, 4.1330, 4.1380, 4.1410, 4.1430, 5.60, 5.70, 5.180, 5.190, 5.210, 5.220, 5.230, 5.250, 5.310, 6.30, 6.50, 6.60, 6.80, 6.100, 6.110, 6.130, 6.140, 6.240, 7.30, 7.90, 7.120 Pt 2, Div 3, subdiv D: 5.190 Pt 2, Div 3, subdiv E: 5.190 Pt 2, Div 7: 1.90 Pt 2, Div 8: 1.90 Pt 2, Div 9: 1.90 s 4: 1.90 s 4(1): 2.230, 5.190 s 5(1): 5.250 s 6: 5.190 s 12: 4.10 s 13: 4.560 s 20: 4.1380 s 27(1)(c): 4.1230 s 32: 4.600 s 33: 4.600 s 35(3): 4.1190 s 41: 5.180 s 42: 2.230, 5.190, 7.90 s 48: 4.260 s 54L: 5.190, 6.60 s 54N: 5.190, 6.60 s 84: 5.190, 5.220 s 87: 5.190, 5.220 s 114B: 5.210, 6.130 s 166: 5.190, 5.220 s 166(1)(a)(i): 5.190 s 166(4): 5.190 s 172: 5.220 s 189: 5.190 s 198: 4.40, 6.100 s 198AB: 4.70 s 198AD: 4.70 ss 200 to 206: 5.190 s 234: 4.1220 s 234(1)(a): 4.1230 s 234(1)(b): 4.1230 s 234(1)(c): 4.1230 s 236: 4.1220 s 243: 4.1220 s 244: 4.1220 s 276: 5.210, 6.130 s 277: 5.210, 6.130 s 280: 5.210, 6.130

s 282: 5.210, 6.130 s 294: 5.180, 5.190 s 474: 5.190 s 501: 4.1070 s 501(2): 4.1190

Migration Amendment Act (No 3) 1992: 5.210, 6.130 Migration Amendment (Excision from Migration Zone) Act 2001: 7.120 Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001: 7.120 Migration Legislation Amendment Act (No 1) 2008 Sch 5: 4.420, 4.750

Migration Legislation Amendment (Judicial Review) Act 2001: 5.190 Migration Reform Act 1992: 5.190 Migration Regulations 1994: 4.800, 5.190, 6.240

Military Rehabilitation and Compensation Act 2004: 5.70 s 221: 5.70

National Consumer Credit Protection Act 2009: 5.260 s 21(6): 5.260

National Disability Insurance Scheme Act 2013: 5.70 ss 18 to 21: 5.70 s 23: 5.70

National Health Act 1953: 5.70 s 84: 5.70 Pt VII: 5.70

National Health Security Act 2007: 5.260 s 8: 5.260

National Security Act 1939: 1.100, 6.220 s 13A: 1.100, 6.220

National Security (Aliens Service) Regulations 1942 s 13A: 1.100

Table of Statutes xxxvii

Nationality Act 1920: 1.40, 3.10, 3.40, 3.50, 3.90 s 5: 3.50 s 6: 3.50 s 6(1): 3.90 s 6(1)(a): 3.50 s 6(1)(b): 3.50, 3.90 s 6(1)(c): 3.90 s 7: 3.50 s 7(2): 3.50 s 10: 3.50 s 10(1): 3.40, 3.90 s 10(2): 3.90 s 10(3): 3.50, 3.90 s 12: 3.80, 3.90 s 13: 3.70 s 13(1): 3.90 s 14: 3.40 s 15: 3.40 s 18: 3.80 s 18(1): 3.70 s 18(5): 3.70, 3.80 s 19: 3.70 s 20(1): 4.180 s 20(2): 3.90 s 21: 3.80, 4.1300 s 22: 3.80

s 11: 4.30, 4.1300 s 12: 4.1300

Nationality and Citizenship Act 1967: 4.1300

Nationality and Citizenship Bill 1948: 3.20, 3.120 Nationality and Citizenship (Burmese) Act 1950: 4.170 Naturalization Act 1903: 1.40, 3.40, 3.50, 3.90, 4.20 s 3: 2.150, 3.40 s 4: 3.40 s 5: 3.40 s 8: 2.150, 3.40 s 9: 3.70 s 10: 3.90 s 10(a): 3.40 s 10(b): 3.40 s 11: 3.40, 3.80 s 11(2): 3.40 s 13: 3.40, 4.20

Navigation Act 1912: 5.60 s 128: 5.60

Nationality Act 1922: 3.50 Navigation Act 2012: 5.60, 5.220 Nationality Act 1925: 3.50, 3.90 Nationality Act 1930: 3.50 Nationality Act 1936: 3.50, 3.80 s 6: 3.80

Nationality Act 1946: 3.50, 3.80 s 18B: 3.80

Nationality and Citizenship Act 1920: 4.180 s 6: 4.180

Nationality and Citizenship Act 1948: 1.10, 1.40, 1.50, 2.150, 3.10, 3.20, 3.50, 3.70, 3.90, 3.110, 4.40, 4.130, 4.140, 4.740, 4.1300 s 10C: 3.50 s 10C(5): 3.50 s 10C(5)(d): 3.50 s 25: 3.50

Nationality and Citizenship Act 1958

s 29(2): 5.220 s 64(2): 5.220

Navigation (Consequential Amendments) Act 2012: 5.60 Norfolk Island Act 1979: 5.180 s 38: 5.180

Northern Territory National Emergency Response Act 2007: 2.220 Northern Territory Representation Act 1922: 5.140, 5.220 Northern Territory (Self-Government) Act 1978: 5.180 s 20: 5.180 s 21: 5.180

Nuclear Non-Proliferation (Safeguards) Act 1987: 5.100, 5.250 s 38: 5.100

s 6: 4.1160

Offshore Minerals Act 1994: 5.260 Nationality and Citizenship Act 1966

s 37: 5.260

xxxviii

Table of Statutes

Offshore Petroleum and Greenhouse Gas Storage Act 2006: 5.260 s 35: 5.260

Ombudsman Act 1976: 4.1450, 5.210, 5.270 Paid Parental Leave Act 2010: 5.70

Protection of Cultural Objects on Loan Act 2013: 5.90 s 5: 5.90

Protection of Movable Cultural Heritage Act 1986: 5.180 s 22: 5.180

Pt 2-3, Div 5: 5.70

Papua New Guinea Independence Act 1975: 6.110 Papua New Guinea Independence (Australian Citizenship) Regulations 1975

Protection of the Sea (Prevention of Pollution from Ships) Act 1983: 5.70 s 14: 5.70

Public Lending Right Act 1985: 5.220 s 3: 5.220 s 5: 5.220

reg 4: 4.40, 4.740

Parliamentary Service Act 1999: 5.180 s 22: 5.180

Passports Act 1938: 1.90, 2.210 s 7(1): 4.250

Public Order (Protection of Persons and Property) Act 1971: 5.180 s 4: 5.180

Public Service Act 1999: 5.180, 5.310 s 22(6): 5.180 s 22(8): 5.180

Patents Act 1990: 5.180, 5.250, 5.260 s 15: 5.260 s 198: 5.180 s 219: 5.250

Public Service Reform Act 1984 Sch 6: 4.190

Public Services Act 1999: 2.210 Pay-roll Tax Assessment Act 1941: 5.150 s 67: 5.150

Personally Controlled Electronic Health Records Act 2012: 5.260 s 105: 5.260

Qantas Sale Act 1992: 5.180 s 7(i): 5.180 s 7(j): 5.180

Quarantine Act 1908: 5.160 s 35AA: 5.160

Petroleum Resource Rent Tax Assessment Act 1987: 5.150 s 92: 5.150

Racial Discrimination Act 1975: 2.220, 5.270 s 9: 5.270

Petroleum (Timor Sea Treaty) Act 2003: 5.140 Sch 1, Annex B: 5.140

Plant Breeder’s Rights Act 1994: 5.260

Radiocommunications Act 1992: 5.100, 5.180 s 16: 5.100 s 69A: 5.180

s 24: 5.260

Privacy Act 1988: 4.1120, 5.100, 5.270 s 5B: 5.100 s 80J: 5.270 s 80K: 5.270

Referendum (Machinery Provisions) Act 1984: 5.180 s 3: 5.180 s 38: 5.180

Registration of Deaths Abroad Act 1984: Private Health Insurance Act 2007: 5.70 s 34-25: 5.70 s 37-5: 5.70

5.250 s 8: 5.250

Renewable Energy (Electricity) Act 2000: Proceeds of Crime Act 2002: 5.260 s 13: 5.260

5.150 s 85: 5.150

Table of Statutes xxxix

Resale Royalty Right for Visual Artists Act 2009: 5.220 s 12: 5.220 s 14: 5.220

Reserve Bank Act 1959: 5.310 s 68: 5.310

Royal Style and Titles Act 1973: 4.40, 6.40 Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008: 4.1190

s 1230B: 5.260

Social Security (Administration) Act 1999: 5.70, 5.260 ss 29 to 32: 5.70 s 73: 5.260 s 123L: 5.260 s 191: 5.260 s 240B: 5.70

Social Security (International Agreements) Act 1999: 5.70 s 12A: 5.70 s 13: 5.70

Schools Assistance Act 2008: 5.220 s 92: 5.220

Schools Assistance (Learning Together – Achievement Through Choice and Opportunity) Act 2004: 5.220 s 4: 5.220

ss 15 to 22: 5.70 s 23: 5.70 s 24: 5.70

Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997: 1.100

Sea Installations Act 1987: 5.260 s 11: 5.260

Seafarers Rehabilitation and Compensation Act 1992: 5.70 s 9: 5.70

Service and Execution of Process Act 1992: 5.120 s 9(2): 5.120 s 9(7): 5.120

Sex Discrimination Act 1984: 5.270 s 3: 5.270

Shipping Grants Legislation Act 1996: 5.70

Shipping Registration Act 1981: 5.140, 5.250 s 12: 5.140 s 12(2): 5.250

Small Superannuation Accounts Act 1995: 5.240 s 67: 5.240 s 67A: 5.240

Space Activities Act 1998: 5.140 s 8: 5.140 s 12: 5.140 s 66: 5.140 s 70: 5.140

Statute Law (Miscellaneous Provisions) Acts (Nos 1 and 2) 1985: 4.190, 5.60 Student Assistance Act 1973: 5.250, 5.260 Pt 10, Div 2: 5.260 s 44A: 5.250 s 342: 5.260

Superannuation (Government Co-contribution for Low Income Earners) Act 2003: 5.70 s 6: 5.70

Superannuation Guarantee (Administration) Act 1992: 5.70 s 8: 5.70

Superannuation Industry (Supervision) Act 1993: 5.180 s 128A: 5.180

Social Security Act 1991: 1.100, 5.70, 5.170, 5.260 Sch 1A, para 133: 5.70 s 5A: 5.170 s 7: 5.70 s 729(2)(f)(v): 5.70 s 796: 5.70

Superannuation (Unclaimed Money and Lost Members) Act 1999: 5.70 s 20H: 5.70

Taxation Administration Act 1953: 5.250 s 14S: 5.250

xl

Table of Statutes

Telecommunications (Interception and Access) Act 1979: 5.220 s s s s

11A: 5.220 11B: 5.220 11C: 5.220 11D: 5.220

Telecommunications Universal Service Management Agency Act 2012: 5.260 s 11: 5.260

s s s s s s s s s s s

58M: 5.70 58N: 5.70 63N: 5.70 79G: 5.70 93M: 5.70 93T: 5.70 118Q: 5.70 118V: 5.70 118ZC: 5.70 118ZI: 5.260 118ZJ: 5.260

Telstra Corporation Act 1991: 5.180 Pt 2A: 5.180

Tertiary Education Quality and Standards Agency Act 2011: 5.140

War Crimes Act 1945: 5.140, 5.260 s 5: 5.260 s 6: 5.260 s 11: 5.140

s 5: 5.140

Timor Gap Treaty (Transitional Arrangements Act) 2000: 5.140 s 6A: 5.140

Tobacco Advertising Prohibition Act 1992: 5.140

Wartime Refugees Removal Act 1949: 4.180, 6.60 Weapons of Mass Destruction (Prevention of Proliferation) Act 1995: 5.100, 5.120 s 6: 5.100 s 6(3): 5.120

s 15A: 5.140

Witness Protection Act 1994: 5.70 Torres Strait Fisheries Act 1984: 5.100, 5.140, 5.160, 5.220, 5.250 Sch 2, item 1: 5.250 Sch 2, item 8: 5.250 Sch 2, item 13: 5.250 s 3: 5.140, 5.220 s 13: 5.140 s 14: 5.160 s 16: 5.140 s 19: 5.100 s 54: 5.100

Trade Marks Act 1995: 5.170 s 222: 5.170

Venture Capital Act 2002: 5.180 s 9-5: 5.180

Veterans’ Entitlements Act 1986: 1.100, 5.70, 5.180, 5.260 s s s s s s s s s s s

5G: 5.70 13(5): 5.70 36(2): 5.70 36H: 1.100, 5.70 37(3): 5.70 37H: 1.100, 5.70 38(4): 5.70 38H: 1.100, 5.70 45M: 1.100, 5.70 45TB: 5.70 52ZZZWD: 5.180

s 10A: 5.70

Youth Allowance Consolidation Act 2000: 5.260 s 1061ZZBX: 5.260 s 1061ZZCE: 5.260 Div 12, subdiv B: 5.260 Div 12, subdiv C: 5.260

Australian Capital Territory Age of Majority Act 1974: 3.90 Children and Young People Act 2008 s 7(e)(ii): 7.90

Electoral Act 1992: 5.180 s 72: 1.80 s 128: 1.80

Human Rights Act 2004: 2.220 Juries Act 1967 s 9: 2.170, 2.210 s 10: 2.170 s 11: 2.170

New South Wales Australia Acts (Request) Act 1985: 4.40

Table of Statutes xli

Children and Young Persons (Care and Protection) Act 1998 s 9(2)(a): 7.90

Australia Acts (Request) Act 1985: 4.40 Children’s Protection Act 1993 s 4(4)(d): 7.90

Jury Act 1977 s 5: 2.170, 2.210 s 6: 2.170 Sch 3, s 7: 2.170

Jury Amendment Act 2010 Sch 1, para 23: 2.170

Minors (Property and Contracts) Act 1970:

Electoral Act 1985 s 29: 1.80 s 69: 1.80

Juries Act 1927 s 11: 2.170, 2.210 s 12: 2.170 Sch 3, s 13: 2.170

3.90

Parliamentary Electorates and Elections Act 1912

Supreme Court Admission Rules 1955-1975: 4.160

Tasmania

s 22: 1.80 s 23: 1.80

Northern Territory

Age of Majority Act 1973: 3.90 Australia Acts (Request) Act 1985: 4.40

Age of Majority Act: 3.90 Children, Young Persons and the Families Act 1997

Electoral Act s 21: 1.80 s 48: 1.80

s 8(3): 7.90

Electoral Act 2004 Juries Act s 9: 2.170, 2.210 s 10: 2.170 Sch 7, s 11: 2.170

Queensland

s 31: 1.80 s 107: 1.80

Juries Act 2003 s 6: 2.170, 2.210 Sch 1, s 6: 2.170 Sch 2, s 6: 2.170

Age of Majority Act 1974: 3.90

Victoria Australia Acts (Request) Act 1985: 4.40 Age of Majority Act 1977: 3.90 Commission for Children and Young People Act 2000

Australia Acts (Request) Act 1985: 4.40

s 6(2)(b): 7.90

Electoral Act 1992 s 64: 1.80 s 106: 1.80

Jury Act 1929

Charter of Human Rights and Responsibilities Act 2006: 2.220 Children, Youth and Families Act 2005 s 11(f): 7.90 s 11(g): 7.90

s 6: 2.210

Chinese Act 1881, The: 2.40 Jury Act 1995

s 3: 2.40

s 4: 2.170

South Australia

Chinese Immigrants Statute 1865: 2.40 Chinese Regulation Act 1857: 2.40

Age of Majority (Reduction) Act 1970–71: 3.90

Electoral Act 2002

xlii Table of Statutes Electoral Act 2002 — cont s 22: 1.80 s 87: 1.80

s 74(b): 6.200, 7.130

Immigration Act 1987: 6.200 s 7: 6.200

Juries Act 1967 s 4: 2.210

Papua New Guinea Juries Act 2000 s 5: 2.170 s 8(3): 2.170 Sch 2, s 5(3): 2.170

Constitution of the Independent State of Papua New Guinea: 4.40 s 64: 4.740 s 64(1): 4.40

Western Australia

s 64(2): 4.40 s 64(4): 4.40

Age of Majority Act 1972: 3.90 Australia Acts (Request) Act 1985: 4.40

People’s Republic of China

Children and Community Services Act 2004

Nationality Law of the People’s Republic of China: 4.1170

s 8(1)(f): 7.90 s 10: 7.90

Switzerland

Electoral Act 1907 s 17: 1.80

Juries Act 1957

Swiss Nationality Act 1994: 4.1310

United Kingdom and Imperial

s 4: 2.170, 2.210 s 5: 2.170

Australia Act 1986: 4.40

Sch 2, s 5(c): 2.170

Natives (Citizenship Rights) Act 1944: 3.10

Australian Naturalization Act 1897: 3.30 British Nationality Act 1981 s 11(1): 4.190

Canada Constitution: 6.200 Canadian Charter of Rights and Freedoms s 1: 5.190

British Nationality and Status of Aliens Act 1914: 1.40, 3.20, 3.50, 3.80, 4.180 British Nationality and Status of Aliens Act 1922: 3.50

s 6(1): 5.190

British North America Act 1867 Citizenship Act RSC 1985: 4.30, 6.20

Ireland Irish Nationality and Citizenship Act 1956: 4.1310 s 7(2): 4.1310 s 27: 4.1310

s 91(25): 4.20

Burma Independence Act 1947: 4.170 Federal Council of Australasia Act 1855: 4.20

Naturalisation Act 1870: 4.30 Princess Sophia Naturalisation Act 1705:

New Zealand Electoral Act 1993: 6.200 s 74: 1.80, 6.200, 7.130

4.30

Representation of the People Act 2000 s 1: 6.200

Table of Statutes

xliii

United States General Agreement on Trade and Tariffs: Constitution

7.110

Art IV: 4.20

Treaties and Conventions Convention Relating to the Status of Refugees (1951 Refugee Convention): 4.1330

Convention Relating to the Status of Stateless Persons Art 1(2)(iii): 4.420, 4.440

Convention on the Elimination of All Forms of Discrimination Against Women: 5.270 Convention on the Recognition and Enforcement of Foreign Arbitral Awards: 5.250

Geneva Declaration on the Rights of the Child 1924: 3.90 Hague Convention on Celebration and Recognition of the Validity of Marriages: 5.250 Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention): 5.190, 5.270, 5.300, 6.150, 6.230 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption: 1.60, 4.120, 4.200, 4.280, 4.310, 4.420, 4.470, 4.500, 4.530, 4.710, 4.980, 4.1060, 4.1110, 4.1130, 4.1140, 4.1430, 7.80, 7.90

Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality: 4.1170

International Convention Against the Taking of Hostages

Convention on the Reduction of Statelessness (Statelessness Convention): 4.750, 4.1130, 4.1170

International Convention on the Elimination of all Forms of Racial Discrimination: 5.20, 5.270, 7.50

Art 1: 4.1130 Art 4: 4.1130

Convention on the Rights of the Child (UNCRC): 4.230, 7.70 Art 2: 7.70 Art 7: 4.50, 7.70 Art 8: 4.50, 7.70, 7.100

Art 6: 5.250

International Covenant on Civil and Political Rights: 5.20, 6.190, 7.50 Art Art Art Art Art Art

1: 5.20 7: 5.20 9: 5.20 12: 5.20 17: 5.270 25: 5.20, 6.190, 7.50

Art 12: 7.70 Art 13: 7.70 Art 14: 7.70 Art 15: 7.70

Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they Live: 5.20, 7.50 Art 2(1): 5.20

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 8: 1.130, 6.150

International Covenant on Economic, Social and Cultural Rights (ICESCR): 5.20, 7.50 Art Art Art Art Art Art

1: 7.50 7: 5.20, 7.50 8: 5.20, 7.50 9: 5.20, 7.50 12: 5.20, 7.50 13: 5.20, 7.50

xliv

Table of Statutes

North American Free Trade Agreement: 7.110

Protocol Relating to the Status of Refugees Art 1A(2): 4.1330

Universal Declaration of Human Rights: 4.50 Art 15: 4.50

Chapter 1

Citizenship in Australia: An Overview [1.10] CITIZENSHIP IN AUSTRALIA: LAW AND CONTEXT ................................................ 1 [1.20] CITIZENSHIP THEORY: DIFFERENT MEANINGS OF CITIZENSHIP ...................... 5 [1.30] AUSTRALIAN CONSTITUTION AND THE ORIGINS OF CITIZENSHIP .............. 12 [1.40] FIRST 48 YEARS OF CITIZENSHIP: SOLE STATUS AS BRITISH SUBJECTS .............................................................................................................. 15 [1.50] AUSTRALIAN CITIZENSHIP ACT 1948 (CTH) ............................................................ 16 [1.60] AUSTRALIAN CITIZENSHIP ACT 2007 (CTH) ............................................................ 17 [1.70] LEGISLATIVE EXPRESSIONS OF MEMBERSHIP ......................................................... 22 [1.80] Political membership ............................................................................................................ 23 [1.90] Migration Act 1958 (Cth) ..................................................................................................... 24 [1.100] Acts that confer benefits .................................................................................................... 25 [1.110] JUDICIAL EXPRESSIONS OF CITIZENSHIP ................................................................ 28 [1.120] EXECUTIVE EXPRESSIONS OF CITIZENSHIP: THE SPECIAL CASE OF HONORARY AUSTRALIAN CITIZENSHIP ................................................................. 31 [1.130] FUTURE OF CITIZENSHIP IN AUSTRALIA ............................................................... 31

CITIZENSHIP IN AUSTRALIA: LAW AND CONTEXT [1.10] The first edition of this book was published in 2002, when the move to a new century and millennium sparked renewed interest in Australia’s national identity. The centenary of Federation and its commemoration triggered reflections on issues of fundamental national importance: the relationship between the individual and the state, between Australia and the United Kingdom, between Indigenous and non-Indigenous Australians, and between individuals in a multicultural society. In all of these contexts, sharp questions about Australian citizenship were raised. A key outcome of this renewed focus was the replacement of Australia’s citizenship legislation in 2007. Following a recommendation of the Australian Citizenship Council in its 2000 report, Australian Citizenship for a New Century,1 the Australian Citizenship Act 1948 (Cth) was ultimately repealed.2 The re-organised Australian Citizenship Act 2007 (Cth) came into effect on 1 July 2007. Though the 2007 Act was a complete restructure of the 1948 Act, limited substantive changes were made at the time of its 1 Australian Citizenship Council, Report, Australian Citizenship for a New Century (2000). 2 Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth).

2

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[1.10]

introduction.3 The inclusion of a “citizenship test”4 later in 2007, however, represented a fundamental change to Australian citizenship policy, and generated widespread and passionate debate.5 Further broad public engagement with citizenship issues resumed just before the publication of this second edition of the book. In 2014 the Annual Report of the Independent National Security Legislation Monitor (INSLM),6 which had examined passport cancellation powers, had raised “a broader and deeper concern with dual citizenship”.7 This broader concern was identified by the Abbott-led Liberal Government with the introduction in December 2015 of the Australian Citizenship Amendment (Allegiance to Australia) Act, which enables dual citizens to have their Australian citizenship stripped in new circumstances.8 Despite these two incidents of engaged public discourse, discussion about Australian citizenship has mainly lacked focus. The introduction of the 2007 Act and the citizenship test, while clarifying the legal framework around who may become an Australian citizen, did not settle the meaning and consequences of Australian citizenship. The deprivation of citizenship provisions has focused thinking about questions of allegiance, but the nature of Australian citizenship more broadly remains unclear, and often 3 Notable changes to the last version of the 1948 Act include the introduction of a framework for the collection, storage and use of personal information, heightened security measures, changes to residency requirements, the removal of age limits for applications of citizenship by descent, the creation of an avenue for people adopted overseas to become Australian citizens, the addition of s 21(6), allowing children of parents who lost their citizenship under the former s 17 of the 1948 Act to apply for citizenship, and s 21(7), allowing citizenship by conferral for some individuals born in Papua. A number of further amendments to the 2007 Act have been made since 2007. For example, the 2009 addition of a permanent residency requirement into s 21(5). These aspects of the 2007 Act are discussed in Chapter 4. 4 All applicants who are eligible to apply for a conferral of Australian citizenship under s 21(2) of the 2007 Act must (if eligible to sit the test) successfully complete the citizenship test. Applicants for a conferral of citizenship who have a permanent or enduring physical or mental incapacity, are aged over 60 or have a hearing, speech or sight impediment, are aged under 18, have a parent who is a former Australian citizen, were born in Papua or are stateless, are not required to complete the test. See s 21 of the 2007 Act and further discussion in Chapter 4. 5 See, eg, Georgiou, “The New Australian Citizenship Test – A Template for National Identity” (Speech, Manning Clark House Weekend of Ideas, “Australian Citizenship – Is it Really Worth Having” (29 March 2008): and Chisari, “History and Governmentality in the Australian Citizenship Test” 2012 (26) Continuum 157-168. The citizenship test is discussed further in Chapter 4. 6 The INSLM is independent of Government and its functions and powers are set out in the Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act). The INSLM Act, most recently amended in December 2014, can be downloaded at the Federal Register of Legislation. The 2014 report was published in March 2014: see http:// www.dpmc-prod-s3.s3-ap-southeast-2.amazonaws.com/inslm/s3fs-public/publications/ inslm-annual-report-2014.pdf. 7 Independent National Security Legislation Monitor (INSLM), Annual Report (28 March 2015) p 2 at [1.2]. 8 See further discussion in Chapter 4.

[1.10]

CH 1: Citizenship in Australia: An Overview

3

entirely different concepts of citizenship are discussed. For some, the discussion is about citizenship as a legal status: who is recognised as a citizen by the state and entitled to certain rights and entitlements as a consequence? Others view the notion of citizenship as participation and membership within a democratic community. This view may be broader than citizenship as a legal status. Citizenship is also viewed by some as a “desirable-activity”,9 that is, what communities want citizens to be like – the “civic virtues” concept of citizenship. This is a view that now may impact on a person’s capacity to continue to hold Australian citizenship.10 The different concepts of Australian citizenship are most clearly articulated in the Australian Citizenship Council’s report, which states: We must recognise the difference between citizenship in the legal sense and citizenship in the broader sense. That is why throughout this report, when the terms “citizen” and “citizenship” are used with a small “c” they describe citizenship in the broader sense of civic value of our society, relevant to all the people who live here, not simply those who, under the Australian Citizenship Act 1948 (Cth), have the legal status of Citizens.11

In essence, this book fleshes out the differences between citizenship in the legal sense and citizenship in the broader sense. It highlights the anomaly raised by Einfeld J in Minister for Immigration v Roberts (1993) 41 FCR 82 at 86 (emphasis added): [I]t is quite anomalous … that a person who has lived legally in Australia for more than 20 years and is to all intents and purposes an Australian has to pass arbitrary tests for citizenship. It seems at least odd for example that an Australian in all but law who leaves the country for temporary work … loses the benefit of his loyalty and connection to Australia over a lifetime in counting towards citizenship.

The concept of an Australian in “all but law” highlights the different understandings of membership in the Australian community.12 By examining legal citizenship in light of broader notions of citizenship, this 9 Kymlicka and Norman, “Return of the Citizen: A Survey of Recent Work on Citizenship Theory” (1994) 104 Ethics 352 at 353. 10 Alejandro, Hermeneutics, Citizenship and the Public Sphere (1993) also refers to other models, such as “[c]itizenship as amelioration of class conflicts” (p 26), “[c]itizenship as self sufficiency” (p 28), and finally, his thesis of “[c]itizenship as a hermeneutic endeavour” (p 33ff). See further discussion about theories of citizenship below at [1.20]. 11 Australian Citizenship Council, Report, Australian Citizenship for a New Century (2000) p 7. 12 Another example that expressed the same sentiment from a different perspective was the selection of athletes for the Australian team for the 2000 Olympics. Melbourne-born, Silvana Trampuz was selected even though, it was reported, she had lived in Italy since she was three and had never trained or competed in Australia. It was also reported that at least 16 successful athletes from other countries were attempting to compete for Australia: see McGarry and Bita, “A True Blue between Marathon Stars”, The Australian (21 December 1999) p 1. In this situation, those claiming Australian citizenship could be described as “only being Australian by law”.

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[1.10]

book poses the question: is the legal notion of citizenship appropriate?13 How should Australian citizenship figure in the future? This chapter outlines the framework and content of the book and the themes developed within. It begins by highlighting the differences between citizenship as a legal concept, and citizenship in the broader sense, as membership of the Australian community. This is an important theme for it underpins each of the chapters in identifying inclusive and exclusive notions of membership of the community. In this chapter, also, the framework for the rest of the book is outlined through an analysis of citizenship in the Australian legal system. This analysis begins by explaining the absence of citizenship in the Constitution and its place in the Constitutional Convention debates in the 1890s.14 The chapter devoted to this highlights the continuing impact of the absence of citizenship in the foundation legal document — a point extended throughout the book in looking at the often confused understanding of legal citizenship. This introductory chapter then explains the legal position before citizenship status was established in Australia with the introduction of the Nationality and Citizenship Act 1948 (Cth), later to be renamed the Australian Citizenship Act 1948 (Cth), and then replaced by the Australian Citizenship Act 2007 (Cth).15 It then extends the legal framework and understanding of citizenship by concentrating on the Australian Citizenship Act 2007 (Cth).16 However, expressions of citizenship in law extend well beyond the Act itself; they can be seen in other pieces of legislation17 and through High Court decisions that have examined citizenship.18 Ultimately, the chapter draws each of these frameworks together in looking forward to the future of Australian citizenship law.19 Attention to the legal notion of citizenship can be criticised as a formal and narrow approach to the question of membership:

13 For an examination of Legomsky’s question, “Why Citizenship?” (1994) 35 Virginia Journal of International Law 279, where he asks what is accomplished by having legal citizenship at all, see Chapter 5 at [5.30]. See also Shachar, The Birthright Lottery: Citizenship and Global Inequality (2009). 14 For more detailed discussion, see Chapter 2. 15 For more detailed discussion, see Chapter 3. 16 For more detailed discussion, see Chapter 4. 17 For more detailed discussion, see Chapter 5. See also Pillai, “The Rights and Responsibilities of Australian Citizenship: A Legislative Analysis” (2014) 37(3) Melbourne University Law Review 736. 18 For more detailed discussion, see Chapter 6. See also Pillai, “Non-immigrants, Non-aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited” (2013) 39(2) Monash University Law Review 568. 19 For more detailed discussion, see Chapter 7.

[1.20]

CH 1: Citizenship in Australia: An Overview

5

One might reasonably object that administrative interpretations and practices may differ from and be more important than the rules and also that social and economic arrangements are more central in immigrants’ lives than legal rules of any sort.20

While this may be the case in some instances, the legal framework and meaning of citizenship does impact upon the lives of citizens and non-citizens.21 The legal status, for instance, will be highlighted if a dual Australian citizen loses their Australian citizenship under the most recent amendments to the Act. However, for many people who do take their citizenship for granted, the question of the value of the legal status of a citizen is far removed from the practical aspects of those people’s experiences of citizenship and membership.22

CITIZENSHIP THEORY: DIFFERENT MEANINGS OF “CITIZENSHIP” [1.20] An explosive growth of literature in Australia and internationally on citizenship issues marked the latter part of the 20th century and continues to this day. The analysis spans many disciplines, including history, politics, law, education, feminism and sociology. As a result, a wealth of debate on the subject has been placed on the public record. Different discussions occur when citizenship is conceived as a legal formal notion,23 as opposed to citizenship as a normative concept.24 Sometimes this is conceived as a difference between citizenship’s 20 Carens, “Citizenship and Civil Society: What Rights for Residents?” in Hanson and Weil (eds), Dual Nationality, Social Rights and Federal Citizenship in the US and Europe (2002). I am grateful for Carens’ paper in encouraging me to highlight this point in my work. 21 As seen in Chapter 5 where this point is repeated and discussed. See also Pillai, “The Rights and Responsibilities of Australian Citizenship: A Legislative Analysis” (2014) 37(3) Melbourne University Law Review 736. 22 See also the discussion below about gender and citizenship at [1.20]. An interesting example of this gap is the case of “citizenship by investment”. Although not an avenue to citizenship in Australia, an increasing number of jurisdictions confer the legal status of citizenship on the basis of significant investment ini the country’s economy. Laura Johnston argues that such avenues to citizenship amount to institutional corruption, as they threaten to destroy the value of national citizenship and erode public trust in citizenship in a way that naturalisation on other bases does not: see Johnston, “A Passport at Any Price? Citizenship by Investment Through the Prism of Institutional Corruption” (2013) Edmond J Safra Working Papers, No 22. 23 Another legal term used for citizenship is “nationality”. Nationality is often referred to when discussing legal formal membership in the international context, whereas citizenship is the term used for legal formal membership in the national, domestic context. For further discussions about the distinction, see Rubenstein and Adler, “International Citizenship: The Future of Nationality in a Globalized World” (2000) 7 Indiana Journal of Global Legal Studies 519 at 521; see also Rubenstein, “Globalization and Citizenship and Nationality” in Dauvergne (ed), Jurisprudence for an Interconnected Globe (2003). Interestingly, where international law and most Western European states use the term “nationality”, most Eastern European states use the term “citizenship”: Council of

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[1.20]

technical meaning and its jurisprudential meaning.25 In Citizenship Denationalized,26 Linda Bosniak describes citizenship as four separate concepts: “citizenship as a legal status”, “citizenship as a system of rights”, “citizenship as a form of political activity” and “citizenship as a form of identity and solidarity”. The legal formal notion is primarily concerned with the legal status of individuals within a community.27 For instance, in Australia citizens are contrasted with permanent residents, temporary residents and unlawful non-citizens.28 Legal issues associated with a person’s formal status include the acquisition and loss of citizenship, the criteria for citizenship by grant, dual or multiple citizenship, and discrimination based upon citizenship status. In fact, tensions also exist within the law, with inconsistent legislation

Europe, European Convention on Nationality and Explanatory Report (1997), as cited in Committee on Feminism and International Law, Final Report on Women’s Equality and Nationality in International Law (Sixty-Ninth Conference of the International Law Association, 2000) p 259. 24 This divide was highlighted in Bosniak, “Universal Citizenship and the Problem of Alienage” (2000) 94 Northwestern University Law Review 963; Slawner, “Uncivil Society: Liberalism, Hermeneutics, and “Good Citizenship”” in Slawner and Denham (eds), Citizenship after Liberalism (1998) p 81. One article that Bosniak highlights in particular is Kymlicka and Norman, “Return of the Citizen: A Survey of Recent Work on Citizenship Theory” (1994) 104 Ethics 352 at 353, in which the value of citizenship as a normative project, concentrating particularly on citizenship as “desirable activity” and citizenship as “identity”, is discussed. 25 Allars, “The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law” (2000) 28 Federal Law Review 187 in her first footnote states: “[t]he term ‘citizen’ is employed in this essay, not with the technical meaning found in migration and citizenship laws, but rather in the wider and jurisprudential sense of a person in a reciprocal relationship with government defined by political and civil rights and duties.” This is the same sense in which citizenship is discussed by Mason in his chapter, “Citizenship” in Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) p 5. 26 Bosniak, “Citizenship Denationalized” (2000) Indiana Journal of Global Legal Studies 447. 27 See Berns, “Law, Citizenship and the Politics of Identity: Sketching the Limits of Citizenship” (1998) 7 Griffith Law Review 1 and her critique of the use of legal citizenship in excluding “the other” in Australian political discourse. Berns states (at 6): “We understand who is a citizen not by positive indicia, but by the mechanisms of exclusion to which those who do not qualify are subjected. They represent the public, official processes of delineating ‘otherness’ by executive power”. See also Davies, “Exclusion and the Constitution” (2000) 25 Australian Journal of Legal Philosophy 297 where she asks (at 298), amongst other things: “in what sense is the identity of a constituted legal order based upon exclusion?” 28 This legal distinction is determined by the Australian Citizenship Act 2007 (Cth) and the Migration Act 1958 (Cth), in which each status is defined. The consequences of each status are set out more clearly in Chapter 5.

[1.20]

CH 1: Citizenship in Australia: An Overview

7

discriminating between citizens and non-citizens,29 and in the inconsistent manner in which the High Court has developed the common law of citizenship.30 In discussing citizenship as a normative notion, this book looks at citizenship as the collection of rights, duties31 and opportunities for participation which define the extent of socio-political membership32 within a community. In this description, Bosniak’s three definitions are bundled into one. Thus, this book takes the theoretical liberty of synthesising two strains of citizenship: the liberal conception based on rights33 and the republican conception based on participation and political activity.34 This is broader than legal status because it looks beyond it to the material circumstances of life within the polity, notably questions of social membership and substantive equality.35 The word “citizen”, in contrast to the word “subject”, says something about citizenship: “To be a subject is to be subjected to authority — subjected to particular rules, laws and obligations imposed by the state.”36 In contrast, there is a more democratic foundation to the concept

29 As developed in Chapter 5. See also Pillai, “The Rights and Responsibilities of Australian Citizenship: A Legislative Analysis” (2014) 37(3) Melbourne University Law Review 736. 30 As developed in Chapter 6. See also Pillai, “Non-immigrants, Non-aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited” (2013) 39(2) Monash University Law Review 568. 31 For a discussion of the conceptualisation of duties as the essence of citizenship, see Kochenov, “EU Citizenship without Duties” (2014) 20 European Law Journal 482. 32 Alejandro refers to this as “citizenship of communality and participation”: Alejandro, Hermeneutics, Citizenship and the Public Sphere (1993) p 21. 33 There has been much discussion about the approach of liberalism on questions of immigration and citizenship, in particular in relation to how to treat non-citizens. This is developed further in Chapter 5 at [5.50]. See also Dauvergne, “Amorality and Humanitarianism in Immigration Law” (1999) 37 Osgoode Hall Law Journal 597; Carens, “Aliens and Citizens: The Case for Open Borders” (1987) 49 The Review of Politics 251; Galloway, “Liberalism, Globalism and Immigration” (1993) 18 Queens Law Journal 266. 34 I thank Daniel Adler for the articulation of this divide, which we wrote about in Rubenstein and Adler, “International Citizenship: The Future of Nationality in a Globalized World” (2000) 7 Indiana Journal of Global Legal Studies 519. 35 This broader, normative view underpins Einfeld J’s quote above (at [1.10]). A third view of citizenship which will not be of direct concern in this book is citizenship as “desirable – activity”. That is, looking at the “civic virtues” concept of citizenship: see Kymlicka and Norman, “Return of the Citizen: A Survey of Recent Work on Citizenship Theory” (1994) 104 Ethics 352 at 353; Alejandro also refers to other models, such as citizenship as amelioration of class conflicts (p 26), citizenship as self sufficiency (p 28) and finally, his thesis of citizenship as a hermeneutic endeavour (p 33ff): see Alejandro, Hermeneutics, Citizenship and the Public Sphere (1993). 36 Jayasuriya, “Citizens” in Nile (ed), Australian Civilisation (1994) pp 93–94; see also discussions of difference by Craig, “Public Law, Sovereignty and Citizenship” in Blackburn (ed), Rights of Citizenship (1993) p 307; Wishart, “Allegiance and Citizenship as Concepts in Constitutional Law” (1986) 15 Melbourne University Law Review 662.

8

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of citizenship — the individual no longer has to be subject to the state; sovereignty lies with the people.37 Notions of equality and ideas of participation infuse this difference.38 Citizenship is a political concept as much as it is legal, for it is about the interaction and relationship between individuals, and between the state and individuals.39 Indeed, history is strewn with instances where citizenship and membership of the community are integrally linked. For instance, 5th century Athens is a starting point where Pericles’ Citizenship Law of 451-50 BC required both parents to be citizens and to have a “share in the city”.40 Previously, Athenian citizenship could be obtained for sons provided that the father had been a citizen.41 Thereafter, though, citizens were described by Aristotle as “all who share in the civic life of ruling and being ruled in turn”.42 Montesquieu viewed the citizen as a legal construction aimed at order; Kant saw citizens as those who obeyed the law, and Rousseau was concerned with active participation.43 Paul Craig has discussed the modern theorists concerned with citizenship: Rawls, Dworkin and Sandel with their differing views of community and the relationship between the individual and the state.44 Each of their discussions was concerned with public participation as a representation of citizenship. The normative notion of citizenship is not concerned with legal questions; rather, it sees membership as becoming “increasingly universalistic and open-ended”.45 TH Marshall, a noted citizenship theorist, defined “citizenship” as a status bestowed on those who are full members of a community. In doing so, he expanded citizenship to include social rights, 37 See also Weil, “The Sovereign Citizen: Denaturalization and the Origins of the American Republic” (2013). 38 See Thomas, “Citizenship and Historical Sensibility” (1993) 25 Australian Historical Studies 383; Phillips, “Citizenship Theory and Feminist Theory” in Andrews (ed), Citizenship (1991) p 76. See also Young, “Fairness as Social Justice: The Gendered Lens of Citizenship” in Sarra (ed), An Exploration of Fairness: Interdisciplinary Inquiries in Law, Science and the Humanities (2013) p 361. The author referred to this distinction in commentary around the 2015 amendments to the Australian Citizenship Act 2007 (Cth) enabling dual citizens to be deprived of their Australian citizenship in certain contexts: Rubenstein, “Abbott’s Dual Citizenship Plan is Bad Policy Even in Fight Against Terror”, The Australian (29 May 2015). 39 For a discussion of issues surrounding the definition, recognition and regulation of membership, connection and participation both within and beyond nation-states, see Jenkins, Nolan and Rubenstein (eds), Allegiance and Identity in a Globalised World (2015). 40 Patterson, Pericles’ Citizenship Law of 451-50 BC (1981) p 1. 41 Patterson, Pericles’ Citizenship Law of 451-50 BC (1981) p 8. 42 Barker (ed), The Politics of Aristotle (1946) p 134, cited in Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) at [2.5]. 43 For discussion, see Alejandro, Hermeneutics, Citizenship and the Public Sphere (1993) p 13. 44 See Craig, “Public Law, Sovereignty and Citizenship” in Blackburn (ed), Rights of Citizenship (1993) p 307. 45 Turner, Citizenship and Capitalism: The Debate over Reformism (1986) p 135.

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as well as political and civil rights.46 According to Marshall, social citizenship covers basic living standards, including health care and education.47 Thus, the normative notion is a progressive project,48 not only concerned with legal citizens, but with people and the way people should act and be treated as members of a community.49 In fact, there is a disjuncture between the legal notion, which is an exclusive one, and the normative notion, which seeks to be inclusive and universal.50 To that end, the term “exclusive” will be used to refer to the legal notion of citizenship, and “inclusive” and “universal citizenship” will be used to distinguish the normative concepts of citizenship, thereby highlighting the tensions that exist. Finally, in thinking about legal51 and normative notions of citizenship, and the tensions and ambiguities of citizenship, it is important to highlight that citizenship is essentially a male construct.52 While the language of citizenship is often gender-neutral, it often “perpetuat[es] the 46 See Marshall, Citizenship and Social Class (1950) and discussions about Marshall’s work in Vogel and Moran (eds), The Frontiers of Citizenship (1991). 47 See also Marshall, Sociology at the Crossroads and Other Essays (1963). 48 Note, however, that citizenship can be used in ways that are not necessarily progressive: see Patten, “Citizenship, the New Right and Social Justice” (1999) 57–58 Socialist Studies Bulletin 25 in which he explains how the Reform Party in Canada used citizenship as a means of retreating from social justice. 49 For this reason citizenship is often the language used for other progressive projects. For instance, another area of citizenship that is not often included in normative discussions is that of industrial rights: see, eg, Gersuny, “Industrial Rights: A Neglected Facet of Citizenship Theory” (1994) 15 Economic and Industrial Democracy 211; McCallum, “Collective Labour Law, Citizenship and the Future” (1998) 22 Melbourne University Law Review 42; and McElligott, “The Shifting Boundaries of Industrial Citizenship” (1999) 57–58 Socialist Studies Bulletin 5. Similarly, “citizenship” is used in discussing the treatment of those who are disabled in society: see Carney, “Protection, Populism and Citizenship” (2000) 17 Law in Context 54. 50 Peter Spiro categorises the tensions between citizenship as “exclusion” and citizenship as “inclusion” as the “citizenship dilemma”: see Spiro, “The Citizenship Dilemma” (1999) 51 Stanford Law Review 597. Stephen Castles and Alastair Davidson discuss this as the “ambiguities of citizenship” in Castles and Davidson, Citizenship and Migration: Globalization and the Politics of Belonging (2000) pp 10–15. 51 Citizenship laws have also favoured men over women. This is highlighted in particular in Chapter 3. See also Committee on Feminism and International Law, Final Report on Women’s Equality and Nationality in International Law (Sixty-Ninth Conference of the International Law Association, 2000) p 248; and Knop, “Relational Nationality: On Gender and Nationality in International Law” in Aleinikoff and Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (2001) pp 89–126. In the United States context, see Bredbenner, A Nationality of Her Own: Women, Marriage and the Law of Citizenship (1998); Augustine-Adams, “Gendered States: A Comparative Construction of Citizenship and Nation” (2000) 41 Virginia Journal of International Law 93; see also Collins, “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation” (2014) 123 Yale Law Journal 2134. 52 For an overview of issues associated with feminism and citizenship, see Irving, “Citizenship” in Caine (ed), Australian Feminism: A Companion (1998) p 25.

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invisibility of women” as citizens.53 Margaret Thornton looks at the civil status of women as citizens in the early years of the 20th century to “illustrate the peripheral civil status of women as citizens” and, therefore, questions the full membership consequences of citizenship.54 The impact of gender on citizenship in Australia was identified in the parliamentary report, National Well-Being.55 Marilyn Lake argued that “active citizenship and a full engagement in civic and public life have traditionally rested on a sexual division of labour, which allocated responsibility for domestic work and the care of dependants to women”.56 This has also been explained by Bettina Cass in her research on women, citizenship and welfare in Australia.57 Drawing upon the work of Carole Pateman,58 who argues that liberal citizenship is essentially patriarchal, revolving around a social contract giving rights to men, Cass draws upon the “Mary Wollstonecraft dilemma”59 in which women are conflicted in their desire for two different citizenship aspirations. The first is a citizenship that ought to be accorded to fulfilling the responsibilities of motherhood, and the second is the citizenship women want as independent income-earning individuals. In Pateman’s view, “these two avenues to full citizenship are incompatible because patriarchal welfare states currently accord more value to men’s than to women’s work and spheres of participation”.60 Cass’s response to this dilemma is to argue: [A] democratic conception of citizenship would value and provide the resources for women’s economic and political participation, as well as women’s contributions to caring and welfare. But it would also be based

53 Ackers, “Women, Citizenship and European Community Law: The Gender Implications of the Free Movement Provisions” (1994) 4 Journal of Social Welfare and Family Law 391 at 392. See also Rubenstein, “Epilogue: Reflections on Women and Leadership through the Prism of Citizenship” in Damousi, Rubenstein and Tomsic (eds) Diversity in Leadership: Australian Women, Past and Present (2014) pp 335–339. 54 Thornton, “Embodying the Citizen” in Thornton (ed), Public and Private: Feminist Legal Debates (1995) p 198; “Historicising Citizenship: Remembering Broken Promises” (1996) 20 Melbourne University Law Review 1072; and “The Judicial Gendering of Citizenship: A Look at Property Interests During Marriage” (1997) 24 Journal of Law and Society 486. 55 See Australia, Parliament, Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (Parliament of Australia, April 1996). 56 Australia, Parliament, Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (April 1996). 57 See Cass, “Citizenship, Work, and Welfare: The Dilemma for Australian Women” (1994) Social Politics 106, which also draws upon Pateman’s work. For a comparative United States discussion, see Schultz, “Life’s Work” (2000) 100 Columbia Law Review 1881. 58 See generally, Pateman, The Disorder of Women: Democracy, Feminism and Political Theory (1989); Pateman, The Sexual Contract (1991). 59 Cass, “Citizenship, Work, and Welfare: The Dilemma for Australian Women” (1994) Social Politics 106 at 113–115. 60 Cass, “Citizenship, Work, and Welfare: The Dilemma for Australian Women” (1994) Social Politics 106 at 114.

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unequivocally on the understanding that men cannot be accorded full citizenship if they do not fulfil their responsibilities for care-giving work.61

Therefore, Marshall’s view of membership of the community, which includes social rights, has not been gender-neutral: as illustrated above, the right to employment, one of those social rights, has traditionally been seen as the domain of men as breadwinners.62 Today, in thinking about social citizenship, there are even broader forums of social and civil participation “within which a much wider range of the people may play significant and active roles”.63 These include schools, community organisations, and social and service clubs, for instance.64 In discussing normative citizenship as inclusive, therefore, it is necessary to be mindful of who, in practice, is included and in what contexts. This is not only highlighted through gender but also through age and race.65 For example, although they hold the legal status of citizens, children under the age of 18 are not afforded rights commonly associated with citizenship, such as the right to vote in elections.66 The treatment of Indigenous Australians and their experience of citizenship is another reminder that formal citizenship does not necessarily accord substantive citizenship.67

61 Cass, “Citizenship, Work, and Welfare: The Dilemma for Australian Women” (1994) Social Politics 106 at 114–115; see also Nedelsky, “Rethinking Constitutionalism through the Lens of the Gendered Division of Household Labour” in Baines, Barak-Erez and Kahana (eds), Feminist Constitutionalism: Global Perspectives (2012); Nedelsky and Malleson, A Care Manifesto: Part time for All (forthcoming, 2017). 62 See also Phillips, “Citizenship Theory and Feminist Theory” in Andrews (ed), Citizenship (1991) p 78. 63 Crawford and Maddern, submission to Parliament of Australia, Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (April 1996) p 52. 64 As suggested by Crawford and Maddern, submission to Parliament of Australia, Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (April 1996) p 52. 65 See Young, Justice and the Politics of Difference (1990) and her proposal that “a democratic public should provide mechanisms for the effective recognition and representation of the distinct voices and perspectives of those of its constituent groups that are oppressed or disadvantaged” (p 184). This would be a practical way of ensuring a more progressive, inclusive citizenship as a normative notion. 66 Commonwealth Electoral Act 1918 (Cth). 67 See further discussion in Chapter 3 at [3.40] and Chapter 4 at [4.30]; Chesterman and Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997); see also Lui and Blanchard, “Citizenship and Social Justice: Learning from Aboriginal Night Patrol in NSW” (2001) 5(5) Indigenous Law Bulletin 16 for a discussion about the relationship between formal citizenship and active citizenship. An interesting comparison in the United States is the place of Asian Americans and their citizenship status: see Volpp, ““Obnoxious to their Very Nature”: Asian Americans and Constitutional Citizenship” (2001) 5 Citizenship Studies 57.

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AUSTRALIAN CONSTITUTION AND THE ORIGINS OF CITIZENSHIP [1.30] The Australian Constitution, as the foundation of the entire legal and governmental system, provides a logical starting point for the inquiry into citizenship as a legal concept.68 Curiously, citizenship of Australia is not mentioned in the Australian Constitution, although citizenship of a foreign power is mentioned in s 44(i) as a disqualification for membership of the Australian Parliament. However, a concept of membership can be seen in various sections. Section 7 refers to the “people of the State” and s 24 refers to the “people of the Commonwealth”69 in discussing those people responsible for choosing senators and members respectively. Section 34 further raises a concept of membership of the community in prescribing that the qualification for being a member of the House of Representatives is that the person is “a subject of the Queen”. Section 117 is the other section that raises the concept of membership in prescribing that: [a] Subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

The status of people in Australia centred around their being “British subjects” or “[s]ubjects of the Queen”. Those who were not British subjects were aliens. At Federation, Australia was still not independent of the United Kingdom. Even so, Australian citizenship was discussed during the drafting of the Constitution. John Quick, a member of the Convention who, with Robert Garran, later published the first commentary on the Constitution,70 had sought the insertion in the Constitution of a power over Commonwealth citizenship. When this was not successful, he suggested that a new clause be inserted to confer citizenship on all people resident within the Commonwealth, being natural-born or naturalised subjects of the Queen, and not under any disability by the Parliament. Quick wanted to create a national citizenship above State citizenship, and he was also concerned with the treatment of residents of one State in relation to another State

68 For a comparative analysis of constitutional conceptions of citizenship, see Rubenstein and Lenagh-Maguire, “Citizenship and the Boundaries of the Constitution” in Dixon and Ginsburg (eds), The Research Handbook in Comparative Constitutional Law (2011). 69 The concept of the “people of the Commonwealth” was relied upon extensively in a memorandum of advice prepared by A R Castan QC, dated 27 June 1995, which was incorporated into Hansard in 2002 and which discussed the constitutional validity of s 17 of the Australian Citizenship Act 1948 (Cth): see Australia, Senate, Parliamentary Debates (14 March 2002) p 787. Section 17 of the 1948 Act is discussed at [4.1320]–[4.1350] and [4.70]. 70 Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901).

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and the wording of s 17 of the Constitution.71 The proposed conferral of citizenship was similarly rejected.72 The omission of citizenship was based on many contentious grounds, each of which is outlined and discussed in Chapter 2. That chapter also highlights how the reasons underlying its rejection in the 1890s involved issues which are current in public policy today, such as dual citizenship and the regulation of immigration. Thus, citizenship in Australia is not a constitutional concept. Furthermore, in failing to create or discuss Australian citizenship, the Commonwealth’s power to legislate and define citizenship is uncertain. It is generally accepted that the Commonwealth has the power to naturalise aliens under s 51(xix). The High Court has held that: Within the limits of the concept of “alien” in s 51(xix), it is for Parliament to decide who will be treated as having the status of alienage, who will be treated as citizens, and what the status of alienage, or non-citizenship, will entail.73

However, the “limits of the concept” within which this power must be exercised are not clear. The High Court has considered the definition of “aliens” in s 51(xix) in several cases concerning non-citizens who were about to be deported under the Migration Act 1958 (Cth). However, these cases have been brought in a number of different contexts, and the court’s interpretation of the concept has been inconsistent.74 McHugh J, sitting as a single judge in his final judgment on the High Court, did state categorically in Hwang v Commonwealth (2005) 222 ALR 83 at [9]: It is hardly to be supposed that the national government of an independent sovereign state such as Australia does not have the power to declare to the world who are the citizens of Australia. This is not a matter that concerns the States. They do not speak on behalf of Australia. If the Parliament of the Commonwealth does not have the power to declare who are the citizens of Australia, no Australian polity has the power. Subject to any constitutional prohibitions, every sovereign country has the undoubted right to determine who shall enter the country and who shall constitute the political membership of the community of that country. That is to say, within the limits of its constitutional powers, every sovereign country has the right to determine who are its citizens and to declare by legislation what are the rights, privileges, immunities and duties of members of that community. It is the Commonwealth that speaks to the world on behalf of the Australian community, and it is the

71 See Official Record of the Debates of the Australasian Federal Convention (Sydney, 1891) Vol I pp 93, 546–547; (Sydney, 1897) Vol II p 101; (Melbourne, 1898) Vol IV pp 664–691; (Melbourne, 1898) Vol V pp 1750–1768, 1780–1782, 2397–2398; Saunders, “Citizenship under the Commonwealth Constitution” (1994) 3(3) Constitutional Centenary Foundation Newsletter 6. 72 See Chapter 2 for a detailed examination of this debate. 73 Koroitamana v Commonwealth (2006) 227 CLR 31 at 38, citing Singh v Commonwealth (2004) 222 CLR 322 at 329. 74 See further discussion in Chapter 4.

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Parliament of the Commonwealth that, subject to any express or implied constitutional prohibitions, has the power to determine who are its citizens.75

When the Constitutional Commission examined the question of citizenship in 1988, it recommended that s 51 of the Constitution be altered to give the Federal Parliament an express power to make laws with respect to nationality and citizenship.76 It suggested s 51(xix) be altered to encompass nationality, citizenship, naturalisation, and aliens. This change was proposed so that the assumed validity of the Federal Government’s power in the area would be made certain. However, this proposal did not go to referendum. The Rights Committee of the Constitutional Commission proposed the amendment of the Constitution to include a definition of “citizenship”. The Committee suggested a section that would state: All persons who are (i) born in Australia; (ii) natural-born or adopted children of an Australian citizen; (iii) naturalised as Australians are citizens of Australia and shall not be deprived of citizenship except in accordance with a procedure prescribed by law which complies with the principles of fairness and natural justice.77

But the section and the sentiment behind it were not endorsed by the Commission in its final report. There were too many difficulties associated with placing this definition of “citizenship” in the Constitution itself, the Commission concluded.78 The House of Representatives Legal and Constitutional Affairs Committee organised a round-table on constitutional reform in 2008 and one of the sessions was devoted to questions of citizenship and examined many of the questions discussed above.79 No specific recommendations followed other than recognition of the importance of engaging the greater community in the issues raised by the absence of citizenship in Australia’s Constitution.

75 Hwang v Commonwealth (2005) 222 ALR 83 at [9]. See also Pillai, “Non-immigrants, Non-aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited” (2013) 39(2) Monash University Law Review 568. 76 Australia, Parliament, Constitutional Commission, Final Report (1988) Vol 1 at [4.177]–[4.198]. 77 Australia, Parliament, Constitutional Commission, Final Report (1988) Vol 1 at [4.191]. 78 Australia, Parliament, Constitutional Commission, Final Report (1988) Vol 1 at [4.195]. For instance, the proposal would have effected changes in Australian citizenship law without a case being made to show why those changes should be made; and the changes would have increased the number of people with dual citizenship, which was seen as problematic. Overall, the Commission felt that the “short constitutional provision” was not suitable. 79 Parliament of Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Report, Inquiry into Constitutional Reform (23 June 2008): extract from Ch 6, “Citizenship and the Protection of Rights in Australia”: http:// www.aph.gov.au/Parliamentary_Business/Committees/House_of_representatives_ Committees?url=laca/constitutionalreform/report.htm.

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In the legal sense, therefore, citizenship in Australia is a statutory, rather than a constitutional, concept. It is argued in Chapter 2 at [2.240] that the constitutional place of citizenship must be reviewed as a matter of legal and social importance.

FIRST 48 YEARS OF CITIZENSHIP: SOLE STATUS AS BRITISH SUBJECTS [1.40] In the first part of the 20th century,80 there was active discussion about Australian citizenship, even though it was not yet a formal legal term.81 In 1912, Walter Murdoch, Professor of English literature at the University of Western Australia, wrote The Australian Citizen: An Elementary Account of Civic Rights and Duties,82 primarily for use in schools. It included chapters on government, the work of government, organs of government and citizenship. Murdoch did not discuss “citizenship” as a formal legal term as it was not in existence. He was essentially discussing active participatory citizenship — that is, what it means to be a good person in a democratic society.83 As Helen Irving argues, citizenship was a term of popular usage “in speeches, in the press, in the rules and charters of organisations, and in debates about political entitlements”.84 This discussion of citizenship “entailed commitment, belonging, and contribution”85 and reflected the normative, universal notion of citizenship then in use. However, in law the major distinction of membership in Australia for the first 48 years of the Commonwealth was between British subjects and aliens. At common law, a person’s formal legal status was determined by their allegiance to the monarch, whether by birth or through naturalisation.86 Even so, David Dutton has explained that: [a] de facto administrative Australian citizenship operated during the period which arose from the necessity of distinguishing between those British subjects 80 The material contained in the section below is repeated in a different context in Chapter 3 which specifically covers the first 48 years legal regulation of nationality in Australia. 81 Australian “citizenship” was first legally defined by the Nationality and Citizenship Act 1948 (Cth), which came into effect on 26 January 1949. The Act later became the Australian Citizenship Act 1948 (Cth), as discussed in more detail below at [1.50] and in Chapter 4 at [4.130]. 82 Published by Whitcome and Tomgs Ltd, 1912. 83 The chapters under citizenship include “Liberty”, “Law”, “Equality”, “Our Debt to Society” and “Our Duty to Society”. 84 Irving, “Citizenship before 1949” in Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000) p 10. 85 Irving, “Citizenship before 1949” in Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000) p 12. 86 See Pryles, Australian Citizenship Law (1981) pp 14–16. In particular, Australia was influenced by the common code of the British Nationality and Status of Aliens Act 1914 (UK) 4 & 5 Geo 5, c 17, which was intended to form the basis of a common, uniform law of nationality throughout the Empire. This period before the introduction of the 1948 Act is discussed in greater detail in Chapter 3.

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who were permanent residents and belonged to the Commonwealth (in the sense that they could not be deported), and those British subjects who were merely visitors or who were yet to reside in Australia long enough to be regarded as belonging.87

Thus, there were three forms of membership — those who were British subjects permanently residing in Australia, those who were British subjects and temporarily in Australia, and those who were not British subjects and were aliens. This broader distinction between aliens and British subjects, which framed Australian citizenship in the first 48 years of the nation’s existence, has continued to this day with the current distinction between citizen and non-citizen. The preference for British subjects has disappeared relatively recently. The confusion about membership in Australia has been further complicated by British subject status — a factor that continued until the 1980s.88 The two major pieces of legislation relevant to formal legal status in the first 48 years were the Naturalization Act 1903 (Cth), as amended, and the Nationality Act 1920 (Cth), as amended. Both Acts were primarily concerned with naturalisation as British subjects and were reflective of Australia as part of the Commonwealth system. As such, they largely mirrored the United Kingdom legislation on naturalisation. It was Canada rather than Australia that prompted moves in the Commonwealth towards an independent citizenship and Australia was slow to follow.

AUSTRALIAN CITIZENSHIP ACT 1948 (CTH) [1.50] Australian citizenship “initially crept into our lives quietly, almost unnoticed”,89 with the introduction of the Nationality and Citizenship Act 1948 (Cth) in 1949.90 As the then Minister for Immigration, Arthur Calwell, put it, the time had come for Australia to legally and officially recognise its maturity as a member of the British Commonwealth.91 For the next 20 years, Australians remained British subjects, but were also citizens of Australia. In Calwell’s words: The [Act was] not designed to make an Australian any less a British subject, but to help him express his pride in citizenship of this great country. To say

87 Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 13. See also Dutton, Strangers and Citizens: The Boundaries of Australian Citizenship (1998, PhD thesis, University of Melbourne) and Dutton, One of Us? A Century of Australian Citizenship (2002). 88 See further discussion about British subject status in Chapter 4 at [4.170]. 89 Sir Ninian Stephen, “Australian Citizenship: Past, Present and Future” (2000) 26 Monash University Law Review 333. 90 This material is all developed in greater detail in Chapter 3. 91 Australia, House of Representatives, Parliamentary Debates (30 September 1948) p 1060 (Arthur Calwell).

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that one is an Australian is, of course, to indicate beyond all doubt that one is British; but to claim to be of the British race does not make it clear that one is an Australian.92

However, in 1969, the status of an Australian citizen changed from that of being a British subject to that of an Australian citizen “having the status of a British subject”.93 The Citizenship Act 1969 (Cth) gave primacy to the term “Australian citizen” and enabled people with permanent residence who were citizens of other Commonwealth countries and who had lived in Australia for five years to have a simplified means of acquiring Australian citizenship. The Act was renamed the Australian Citizenship Act 1948 (Cth) in 1973, but everyone remained a British subject. Finally, in 1984, the definition of the status of British subject was repealed to accord with the Government’s aim that the Act reflect the national identity of all Australians.94 Since 1987, Australians have been citizens of Australia and nothing more.95

AUSTRALIAN CITIZENSHIP ACT 2007 (CTH) [1.60] The Australian Citizenship Act 1948 (Cth) was repealed in 2007, and replaced by the Australian Citizenship Act 2007 (Cth) with the intention of delivering a “better structured, clearer and more accessible law, drafted in twenty-first century language”.96 It would be easy to assume that over the years of legislative iterations since Parliament first defined Australian “citizenship” in the 1949 framework, a clear meaning of the term would evolve. However, this has not been the case. The Australian Citizenship Act 2007 (Cth), like its 1948 predecessor, offers a definition of “citizenship” stripped bare. While the Act identifies who is a citizen and who can lose their citizenship, it does not explain the legal consequences of citizenship.97 Yet the definition of “citizenship” in itself, and some of the matters dealt with in the Act, reflect some more fundamental aspects of membership of the community. 92 Australia, House of Representatives, Parliamentary Debates (30 September 1948) p 1060 (Arthur Calwell). 93 By operation of the Citizenship Act 1969 (Cth). 94 Australian Citizenship Amendment Act 1984 (Cth), which came into effect in 1987. For detail regarding the evolution of Australian citizenship law, see Klapdor, Coombs and Bohm, “Australian Citizenship: A Chronology of Major Developments in Policy and Law” (Background Note, Parliamentary Library, 2009). See also Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000). 95 See further discussion about the evolution of the status of Australian citizenship in Chapter 4, at [4.140]. 96 Klapdor, Coombs and Bohm, “Australian Citizenship: A Chronology of Major Developments in Policy and Law” (Background Note, Parliamentary Library, 2009) p 27. 97 The legal consequences are the subject of Chapter 5. See also Pillai “The Rights and Responsibilities of Australian Citizenship: A Legislative Analysis” (2014) 37(3) Melbourne University Law Review 736.

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As Karen Slawner reminds us, the “[l]egal definitions of citizenship always incorporate what is considered to be desirable activity”.98 Although the definition of an Australian “citizen” has changed since the inception of the Act in 1948,99 the present formulation is reasonably clear. A person can become an Australian citizen automatically: • by birth in Australia, if at the time of the person’s birth at least one parent is an Australian citizen or permanent resident or, if the parents do not satisfy that requirement, by being ordinarily resident in Australia for the next 10 years;100 • by adoption, if adopted under Australian law by an Australian citizen;101 • if abandoned in Australia;102 or • by incorporation of an Australian Territory.103 Alternatively, a person can apply to become an Australian citizen: • by descent, if a parent is an Australian citizen;104 • by adoption, if adopted in accordance with the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption105 by an Australian citizen;106 • by conferral of citizenship (for most applicants, this requires successful completion of the citizenship test);107 or • by resuming citizenship that ceased under certain provisions of the 1948 Act or the 2007 Act.108 Three notable issues of exclusion arise from the framework as it presently stands. First, the previous citizenship by birth rule was changed on 98 Slawner, “Uncivil Society: Liberalism, Hermeneutics, and “Good Citizenship”” in Slawner and Denham (eds), Citizenship after Liberalism (1998) p 83. See also Shachar, The Birthright Lottery: Citizenship and Global Inequality (2009), which unpacks some of the broader political and philosophical questions around citizenship. 99 See further, Chapter 4 which charts these changes. See also Sir Ninian Stephen, “Issues in Citizenship” (Paper presented at the Deakin Lecture at the University of Melbourne, Melbourne, 26 August 1993) and, more recently, Sir Ninian Stephen, “Australian Citizenship: Past, Present and Future” (2000) 26 Monash University Law Review 333. 100 Australian Citizenship Act 2007 (Cth) s 12. 101 Australian Citizenship Act 2007 (Cth) s 13. Note the distinction between citizenship by birth and citizenship by adoption under Australian law. See further, Chapter 4. 102 Australian Citizenship Act 2007 (Cth) s 14. 103 Australian Citizenship Act 2007 (Cth) s 15. 104 Australian Citizenship Act 2007 (Cth) s 16. 105 Opened for signature 29 May 1993, Hague Conference on Private International Law Convention 33 (entered into force 1 May 1995). 106 Australian Citizenship Act 2007 (Cth) s 19C. Note the distinction of being adopted other than by Australian law and specifically in accordance with the Hague Convention. See further, Chapter 4. 107 Australian Citizenship Act 2007 (Cth) ss 21, 23A. 108 Australian Citizenship Act 2007 (Cth) s 29.

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20 August 1986. The nationality by birthplace, or jus soli, principle was abandoned for a specific reason. The new rule limited citizenship to those born in Australia to a parent who was an Australian citizen or permanent resident, or those who were born in Australia (without parents satisfying this requirement) and lived in Australia for their first 10 years. The immediate catalyst was Kioa v West (1985) 159 CLR 550, where it was argued that the child of parents who were temporary entrants and subject to a deportation order, was an Australian citizen and, therefore, entitled to natural justice.109 While this view was not adopted by the court,110 it was enough to encourage a change in the legislation.111 The government was keen to prevent the abuse of citizenship to obtain an immigration advantage.112 This concept was further supported in the Australian Citizenship Council report, which stated: [I]n an international environment where population movements are increasing exponentially, and where Australia is seen by many as a desirable destination, it would be inappropriate to allow migration laws to be circumvented through the acquisition of Australian Citizenship status by children born in Australia to temporary or illegal entrants. Such an approach would compromise Australia’s migration program as well as being inequitable to the many thousands of people who apply to migrate to Australia every year through proper channels.113

This is a transparent use of citizenship as a device of exclusion. It is not about including everyone born in Australia as a member of the community, but rather determining first and foremost who is to be included as part of the Australian community.114 The second area of the Act asserting who will be excluded from membership of the Australian community is the section relating to the 109 Kioa v West (1985) 159 CLR 550 at 559 per Gibbs CJ; at 588 per Mason J; at 603 per Wilson J; at 629 per Brennan J; at 634 per Deane J. 110 Kioa v West (1985) 159 CLR 550 at 570 per Gibbs CJ; at 588 per Mason J; at 603–604 per Wilson J; at 629–630 per Brennan J; at 634 per Deane J. 111 See Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) pp 100–101. The Joint Standing Committee on Migration proposed that s 10 remain unchanged, as did the Australian Citizenship Council: see Australian Citizenship Council, Report, Australian Citizenship for a New Century (2000) p 41. The decision of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 reflects the importance of citizenship in arguing for a legitimate expectation as a basis for natural justice. See further discussion of this in Chapter 4 at [4.260] and Chapter 6 at [6.150]. 112 See Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) pp xxvi, 100–101. 113 See Australian Citizenship Council, Report, Australian Citizenship for a New Century (2000) p 40. 114 See Dauvergne, “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23 and “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280 in which Dauvergne argues that migration law is more important than citizenship law in regard to the question of who can become an Australian citizen.

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conferral of Australian citizenship.115 The Act confers the discretion on the Minister to confer Australian citizenship, based on a variety of factors that the Minister must take into account. These matters incorporate “desirable activity” into the definition of “citizenship”.116 For instance, adult applicants117 must be permanent residents who have lived in Australia for a period of four years immediately before their application is made, including the last 12 months as permanent residents.118 This emphasises the value of residence in a community as an expression of membership. Also, the person has to able to understand the nature of the application, have a basic knowledge of English and have an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.119 Since 2007, these requirements will be satisfied only if the applicant is eligible to take, and successfully completes, a citizenship test designed to test these requirements.120 These requirements reflect the importance of a person’s conscious acceptance or consent to becoming a member of the community121 and of the characteristics of those included as fellow members — that is, people who are trusted and respected, and people who can communicate and be understood by their fellow members. Moreover, the applicant must be of good character and be likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia.122 Each of these factors says something about citizenship as a legal status representing a form of membership of the community.123 While the necessity for adequate knowledge of the responsibilities and privileges of Australian citizenship and the citizenship test requirement 115 Australian Citizenship Act 2007 (Cth) s 21. 116 Slawner, “Uncivil Society: Liberalism, Hermeneutics, and “Good Citizenship”” in Slawner and Denham (eds), Citizenship after Liberalism (1998) p 83. 117 See Chapter 4 at [4.590] for a discussion of the operation of s 21. General eligibility provisions apply to adult applicants, but special eligibility provisions are set out for applicants with a permanent or enduring physical or mental incapacity, those aged over 60 or with a hearing, speech or sight impediment, children, applicants born to former Australian citizens, applicants born in Papua, and stateless applicants. 118 Australian Citizenship Act 2007 (Cth) s 21(2)(a), (b) and (c). The Act provides a lesser period of residence for applicants engaging in activities that are of benefit to Australia (which means employment by the Commonwealth in certain positions, or membership of specified Australian representative sporting teams), who are engaged in particular kinds of work requiring regular travel outside Australia, or who have completed 90 days of defence service. See further, Chapter 4. 119 Australian Citizenship Act 2007 (Cth) s 21(2)(d), (e), (f). 120 Australian Citizenship Act 2007 (Cth) s 21(2A). See further discussion at [4.610]. 121 For some interesting literature on the notion of consent and citizenship, see Klusmeyer, Between Consent and Descent: Conceptions of Democratic Citizenship (1996); Schuck and Smith, Citizenship without Consent (1985). 122 Australian Ctiizenship Act 2007 (Cth) s 21(2)(h), (g). 123 See Dauvergne, “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280 at 286 for an analysis of these sections regarding women and citizenship.

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indicate that there are, in fact, legal consequences of citizenship, the precise responsibilities and privileges are not explained by the Act. In 1993, however, the Preamble to the Act, which also provides a sense of what citizenship means, was changed. The Preamble states: The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations: (a) (b) (c) (d)

by pledging loyalty to Australia and its people; and by sharing their democratic beliefs; and by respecting their rights and liberties; and by upholding and obeying the laws of Australia.124

This Preamble speaks of “citizenship” primarily as a concept of inclusion. Inclusive terminology is used by referring to a “common bond”, while “respecting … diversity”. While it assists, no doubt, in determining in principle some of the consequences of citizenship, there is no further explanation within the Australian Citizenship Act 2007 (Cth). The Preamble has little legal consequence. In essence, preambles are only of legal value when the words in a statute are unclear, as applied to the subject matter of an Act, or capable of more than one meaning.125 In those cases, the preamble may assist in the interpretation of the statute. Moreover, the recital of facts in a preamble does not mean that the recitals are conclusive evidence of those facts — they are prima facie evidence only.126 The third area of the Act identifying exclusion is in the area of loss of citizenship, most strongly articulated in the 2015 amendments to the Act, although pre-existing mechanisms existed to exclude a person and strip their existing citizenship. The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) sets out as its purpose: This Act is enacted because the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.127 124 Australian Citizenship Act 2007 (Cth) Preamble. The Preamble was inserted into the Australian Citizenship Act 1948 (Cth) by the Australian Citizenship Amendment Act 1993 (Cth) s 3. 125 See Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014). 126 Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014). See also Winckel, “The Contextual Role of a Preamble in Statutory Interpretation” (1999) 23 Melbourne University Law Review 184; and Winckel, The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution, Past, Present and Future (LLM thesis, University of Melbourne, 2000) Ch 2. 127 Australian Citizenship Amendment (Allegiance to Australia) Act 2015, Act No 166 of 2015. For further explanation of the cessation provisions, see Chapter 4 at [4.1140]ff. For discussion about the principles around stripping individuals of their citizenship, see

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Beyond these messages of exclusion, the philosophical messages in the Australian Citizenship Act 2007 (Cth) connected with the legal meaning of “citizenship” are not entirely clear. While there are strong signals that citizenship is a tool for immigration control and exclusion and revolves around allegiance, when looking at citizenship in the way it practically affects the lives of the citizenry in their everyday lives within Australia, the Australian Citizenship Act 2007 (Cth) lacks any further guidance to its meaning in more substantive terms. One is forced to look at other pieces of legislation to discover the more practical legal consequences of the status of citizenship and what they, in turn, reflect about the meaning of “citizenship” in Australia.

LEGISLATIVE EXPRESSIONS OF MEMBERSHIP [1.70] This book contains a catalogue of federal legislation that discriminates between citizens and non-citizens. It was a comprehensive list up until its first publication, but this second edition has only updated aspects of this chapter.128 The main theme that remains constant is that the Commonwealth Acts that discriminate do so without consistency — some distinguish between residents and non-residents; others on the basis of Australian citizenship; and a small number use other words, such as “domicile”.129 These differences reflect various approaches to citizenship — some as exclusion and some as inclusion. Therefore, in law there are expressions of membership both as a legal status as well as through residence. While the list of Acts discriminating upon the basis of citizenship or a particular type of membership of the community is rather erratic, the Acts can broadly be divided according to subject, including: • • • •

Acts Acts Acts Acts

that encourage Australian investment; that confer benefits; that grant immunity; concerned with extraterritoriality;

Macklin, “The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?”, the first of a set of articles at http://www.eudo-citizenship.eu/ commentaries/citizenship-forum/1268-the-return-of-banishment-do-the-newdenationalisation-policies-weaken-citizenship. 128 The author thanks Natalie Blok for her work assisting in the update of Chapter 5. The research assistants who helped compile the material in the first edition of this book are listed in the first edition, and are thanked in the Preface to the First Edition at p vii. 129 In private international law, “domicile” is defined as the headquarters or home each person is required to have in order to attract legal rights and duties: Whicker v Hume [1858] 7 HL Cas 124; 11 ER 50. A person’s domicile is generally the country in which he or she resides with an intention to remain for an indefinite period. Domicile is of three types — of origin, of choice, and of dependency: Sykes and Pryles, Australian Private International Law (3rd ed, 1991) pp 352, 354, 366. The concept of domicile is not uniform throughout the world. To a civil lawyer, it means habitual residence, but at common law it is regarded as the equivalent of a person’s permanent home: North and Fawcett, Cheshire and North’s Private International Law (1992) p 139.

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• the Income Tax Acts; • Acts relating to jurisdiction; • Acts that impose liabilities or obligations or prohibitions; • Acts that impose membership qualifications; • the Migration Act; • Acts that require residents to register in order to participate; • Acts that confer rights; • other Acts that explicitly do not discriminate; and, finally, • Acts that do not discriminate explicitly but impact upon membership and rights. Some of the more recognised Acts that distinguish upon the basis of citizenship are outlined below, yet they also reflect mixed messages about citizenship as inclusion and exclusion.

Political membership [1.80] The central piece of legislation reflecting political membership in Australia is the Commonwealth Electoral Act 1918 (Cth). Citizenship is the necessary qualification for voting in Commonwealth elections.130 Australia’s links to Britain can still be seen in the Act, as British subjects who were enrolled immediately before 26 January 1984 are entitled to remain on the electoral roll.131 To this extent, Australian political membership extends beyond legal citizenship as it includes certain people who are permanent residents. These qualifications are mirrored within the State systems as State Electoral Acts are linked to the Commonwealth Act.132 However, within local government, voting rights are not dependent upon citizenship, but rather upon property ownership.133 By contrast, in New Zealand voting rights are linked to residence rather than citizenship,134 and in the Republic of Ireland, as in Australia, non-citizens are 130 See Commonwealth Electoral Act 1918 (Cth), ss 93, 94, 94A, 95, 163, 193. Note that s 163 requires that members of Parliament must be citizens. There is also the requirement in s 44 of the Constitution that members of Parliament not be citizens of another country. See also Rubenstein, “Can the Right to Vote be Taken Away? The Constitution, Citizenship and Voting Rights in 1902–2002” in Chesterman and Philips (eds), Selective Democracy: Race, Gender and the Australian Vote (2003). 131 Commonwealth Electoral Act 1918 (Cth) s 93(b). 132 See Commonwealth Electoral Act 1918 (Cth) s 84 (arrangements with States, and the qualifications for electors and voting in each of the State and Territory Electoral Acts): Electoral Act 1992 (ACT), ss 72, 128; Parliamentary Electorates and Elections Act 1912 (NSW), ss 22, 23; Electoral Act 2004 (NT), ss 21, 48; Electoral Act 1992 (Qld), ss 64, 106; Electoral Act 1985 (SA), ss 29, 69; Electoral Act 2004 (Tas), ss 31, 107; Electoral Act 2002 (Vic), ss 22, 87; Electoral Act 1907 (WA), s 17. 133 See further, Chapter 6 at [6.170]. See also Pillai, “The Rights and Responsibilities of Australian Citizenship: A Legislative Analysis” (2014) 37(3) Melbourne University Law Review 736. 134 See Electoral Act 1993 (NZ) s 74.

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entitled to vote in local government elections.135 Such examples raise the question whether citizenship is the appropriate determining factor for formal political membership.136 Arguably, a requirement of residence over citizenship for political membership is a more inclusive approach to citizenship.137

Migration Act 1958 (Cth) [1.90] Another key piece of legislation is the Migration Act 1958 (Cth). The ability to move freely in and out of the country is another mechanism by which membership of the community is politically determined. Similarly, the Passports Act 1938 (Cth), in only allowing citizens to be issued passports, is a practical expression of membership. The decision as to who is let into the country also has an impact upon who is later eligible to become a citizen and a full political member.138 The Migration Act 1958 (Cth) also poignantly highlights notions of exclusion through its objects,139 through its removal and deportation sections,140 and in its detention provisions.141 Moreover, as discussed in Chapter 6 at [6.60] the

135 In respect to local government elections in Australia, see further, Chapter 6 at [6.170]. 136 Note also the constitutional discussions on this topic pursuant to s 44(i) of the Constitution, in relation to singular citizenship as a necessary precondition to election to Parliament, in Chapter 4 at [4.1300]. 137 Note, however, the 2000 proposal explained in Chapter 7 at [7.120] for “virtual voting” in South Australia, which would have enabled expatriate citizens to continue to vote in State elections. See also the discussion in Chapter 5 at [5.140] about ss 94 and 94A of the Commonwealth Electoral Act 1918 (Cth) regarding enrolment for Australians residing overseas. 138 See Dauvergne, “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23 and “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280. 139 Migration Act 1958 (Cth), s 4 states: Object of Act (1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. (2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain. (3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering. (4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act. (5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country. 140 Migration Act 1958 (Cth) Pt 2 Divs 8, 9. 141 Migration Act 1958 (Cth) Pt 2 Div 7.

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High Court has reaffirmed the view that the executive has immense power in determining membership of the Australian community.142

Acts that confer benefits [1.100] There are many Acts that confer benefits upon people in the community, regardless of whether they are formal citizens, permanent residents or temporary residents. This reflects a wider notion of social membership and speaks to the normative value of citizenship as expressed within the Australian community, although it too is often subject to change.143 For instance, in the new tax system legislation, the family assistance provisions are linked to residence rather than citizenship,144 as are most benefits in the Social Security Act 1991 (Cth)145 and certain provisions in the Veterans’ Entitlements Act 1986 (Cth).146 These are all discussed in greater detail in Chapter 5. Such a broad approach to membership, based on residence rather than formal legal citizenship, is consistent with a more inclusive notion of citizenship. It is reflective of an argument proposed by constitutional scholar, Ruth Rubio-Marin, that liberal norms of democracy require a time threshold after which immigrants (legal or illegal) should either be granted equal rights with citizens, or be awarded nationality automatically without any conditions or tests.147 The differences and inconsistencies between citizenship and residence in Australia show that the ideal of universal citizenship is sometimes incorporated through the legal system, but not consistently. The universal notion often jars with other formal exclusive representations of legal citizenship. As Bosniak argues, “[t]he challenge to universal citizenship 142 See cases referred to in Chapter 3 which look at the first 50 years of citizenship, including Potter v Minahan (1908) 7 CLR 277, and cases in the last 60 years in Chapters 4 and 6 such as Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; Pochi v Macphee (1982) 151 CLR 101; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Singh v Commonwealth (2004) 222 CLR 322. See also Pillai, “Non-immigrants, Non-aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited” (2013) 39(2) Monash University Law Review 568. 143 The Social Security Legislation Amendment (Newly Arrived Resident’s Waiting Periods and Other Measures) Act 1997 (Cth) amended the Social Security Act 1991 (Cth) to impose a 104-week waiting period for certain social security benefits. It applies to migrants who arrived on or after 1 December 1997, or who were granted permanent residence on or after 1 December 1996. See further explanation in Chapter 5 at [5.170]. Note also the gendered implications of some of these laws, in particular social welfare. See further, Cass, “Citizenship, Work, and Welfare: The Dilemma for Australian Women” (1994) Social Politics 106. 144 A New Tax System (Family Assistance) Act 1999 (Cth), ss 21, 22, 34, 42, 44, 45, 57G. 145 Note, however, the restrictions in certain provisions regarding the waiting period for recent permanent residents. 146 Veterans’ Entitlements Act 1986 (Cth) ss 36H, 37H, 38H and 45M. 147 Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000).

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becomes especially clear if we focus on the condition of noncitizens, or aliens, who reside within the liberal democratic community”,148 for, in reality, non-citizens, whether they be permanent residents or temporary residents, are participants in the community: As workers, taxpayers, consumers, neighbors, they are persons who constitute part of the life of the (nationally bounded) political community — the very community that citizenship in its internal mode considers its proper domain of concern.149

This tension between citizenship as exclusion and inclusion is not unique to Australia. Peter Spiro, a United States academic reviewing Rogers Smith’s book,150 describes the tensions as giving rise to the “citizenship dilemma”: “[o]n the one hand, exclusionary approaches have been morally and legally discredited. On the other hand, inclusion waters down the strength of national identity.”151 A final example sharply displaying the different standards of membership within Australia and the inherent tensions between inclusion and exclusion, is the Defence Act 1903 (Cth). The Act does not exclude non-citizens from voluntarily joining the forces,152 nor is there a distinction for the purpose of compulsory conscription. Section 59 outlines who is presently liable to serve in the defence force in time of war, and all persons (except those who are exempt from the section or to whom it does not apply)153 who have resided in Australia for not less than six months and who are over 18 and under 60, are liable. The Australian Government has called upon non-citizens to form part of the defence force.154 The High Court was asked to consider the validity of this in Polites v Commonwealth (1945) 70 CLR 60. The National Security Act 1939-1943 (Cth) gave the Governor-General the power to make regulations requiring “persons to place themselves, their services and their property at 148 Bosniak, “Universal Citizenship and the Problem of Alienage” (2000) 94 Northwestern University Law Review 963 at 966 (emphasis in original). 149 Bosniak, “Universal Citizenship and the Problem of Alienage” (2000) 94 Northwestern University Law Review 963 at 973–974. 150 Smith, Civic Ideals: Conflicting Visions of Citizenship in US History (1997). 151 Peter Spiro categorises the tensions between citizenship as “exclusion” and citizenship as “inclusion” as the “citizenship dilemma”: see Spiro, “The Citizenship Dilemma” (1999) 51 Stanford Law Review 597 at 599. For more detailed discussion about the concepts of Australian citizenship and national identity, see Rubenstein and Nolan, “Citizenship and Identity in Diverse Societies” (2009) 15(1) Humanities Research Journal 29. 152 Defence Act 1903 (Cth) s 34. 153 Defence Act 1903 (Cth) ss 61A, 61C. Exemptions are granted on the basis of mental or physical disability, religious duties or parliamentary or judicial office: s 61A(1). It does not apply to persons whose presence in Australia is solely related to employment in the service of a foreign government, or to a prescribed official of an international organisation, or to a member of the defence force: s 61C. 154 For a more detailed discussion of the historical developments, see Jordens, Redefining Australians: Immigration, Citizenship and National Identity (1995) Ch 8.

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the disposal of the Commonwealth”.155 Polites, a Greek national, challenged the validity of the regulations requiring service of resident aliens.156 The court held that Parliament had been clear in its intention to include aliens and, according to the principles of national sovereignty, had the constitutional power to impose this requirement. There was little, if any, comment on what the requirement meant for the status of the Greek national, Polites, as a resident in Australia. Latham CJ, however, stated (at 73): It is for the Government of the Commonwealth to consider its political significance, taking into account the obvious risk of the Commonwealth having no ground of objection if Australians who happen to be in foreign countries are conscripted for military service there.

This is also interesting in light of the 2015 changes to the Australian Citizenship Act around questions of allegiance, and the issues associated with service for another country in conflicts overseas or for terrorist organisations giving rise to the loss of Australian citizenship.157 In contrast, defending the Australian nation has not been the exclusive duty of Australian citizens and, even now, the government can call upon non-citizens who reside temporarily in Australia to serve in the defence force. In looking at citizenship as the broader concept of membership of the community, the requirement to serve one’s community as a soldier may be one factor identifying those who are members. In the example of service as a soldier, many non-citizens were brought within this concept of citizenship as membership, and have the potential to be so included within current legislation. This is arguably a more “inclusive” notion of citizenship in its inclusion of residents. However, it raises issues of exclusivity based on gender since male non-citizens who are members of the defence force are given more practical citizenship status than women citizens who are not part of the defence of the nation.158 Moreover, it concentrates the focus on inconsistencies between the exclusive and the inclusive meanings of citizenship in political terms as non-citizens forced to fight for Australia are not entitled to vote in Commonwealth elections. Further, while on active service abroad, non-citizens do not have an absolute right of re-entry into Australia. This highlights the inconsistent approach to citizenship in Australian legislation.

155 National Security Act 1939 (Cth) s 13A (emphasis added). 156 National Security (Aliens Service) Regulations 1942 (Cth) reg 13A. 157 See further discussion in Chapter 4 at [4.1160] and [4.1350]. 158 Here it could be argued that women’s “service to the nation” in mothering future citizens must be taken into account as a valuable criterion in the measurement of active citizenship.

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JUDICIAL EXPRESSIONS OF CITIZENSHIP [1.110] In thinking about citizenship law and normative notions of citizenship, it is not enough to look at the evolution of the Australian Citizenship Act 2007 (Cth), its predecessor the Australian Citizenship Act 1948 (Cth) and the myriad pieces of legislation that discriminate upon the basis of some form of membership. It is also necessary to include the common law developments that impact upon membership of the community. This book examines citizenship through the eyes of the High Court of Australia and its use of the term.159 While it is a limited view, as the High Court judgments are restricted to cases brought before it, the cases reflect upon the common law view of membership of the Australian community. Some of the court’s contributions to an understanding of membership of the Australian community are examined in Chapter 3 which discusses the development of concepts of membership before citizenship was recognised as a separate formal legal status in Australia. Those cases primarily concern the regulation of aliens. Aliens are subject to Commonwealth control by virtue of s 51(xix) of the Constitution, which refers to “naturalization and aliens”. This head of power has been used by the government throughout the 20th century, and has been interpreted by the High Court, to give the Commonwealth almost complete control160 over laws relating to aliens and, now, “non-citizens”.161 This has been an essential device of exclusion, which existed well before the legal term “citizenship” came about. In fact, the difficulties in the distinction between membership and exclusion were reflected by the High Court’s treatment of the area before “citizenship” evolved as a legal term. The first legal expressions of citizenship as exclusion are found in a range of important and early High Court decisions.162

159 As discussed in greater detail in Chapter 6. See also Pillai, “Non-immigrants, Non-aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited” (2013) 39(2) Monash University Law Review 568. 160 While this is a plenary power, the Commonwealth Government is still restricted by other notions protected by the Constitution, such as separation of powers and responsible government. The High Court case of Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 reflects this restriction, but see also Crock, “Climbing Jacob’s Ladder: The High Court and the Administrative Detention of Asylum Seekers in Australia” (1993) 15 Sydney Law Review 338. For an excellent analysis of the historical treatment of the term “alien”, see Prince, “Aliens in their Own Land: “Alien” and the Rule of Law in Colonial and Post-federation Australia” (PhD thesis, ANU, 2015): https://openresearch-repository.anu.edu.au/handle/1885/101778. 161 See discussion in Chapter 6 on the High Court and citizenship. See also Rubenstein and Field, “Who We Are Not Is Not Who We Are: Australia’s Exclusionary Approach to Citizenship” in Douglas and Wodak (eds), Refugees and Asylum Seekers: Finding a Better Way (2013) p 88. 162 These include R v Lindbergh; Ex parte Jong Hing (1906) 3 CLR 93; Chia Gee v Martin (1906) 3 CLR 649; Christie v Ah Sheung (1906) 3 CLR 998; Preston v Donohoe (1906) 3 CLR 1089;

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The latter half of the century has its own cases dealing with the areas of membership and exclusion. But this has not been the only context in which the word “citizen” appears in the judgments of the court. In the High Court, the word “citizen” can have different meanings.163 There is the use of “citizen” as legal citizen in cases involving the Migration Act 1958 (Cth) where deportation of a non-citizen was often disputed. Legal citizens have also been identified in respect to certain rights, such as the right to enter the country,164 and the rights of children who are citizens.165 However, in many judgments where the word “citizen” appears, the High Court uses the word interchangeably with the word “person”. As in the rest of the Australian community, the High Court often uses the word “citizen” when it is really talking about individuals bearing rights — who could very well be non-citizen permanent residents, or temporary residents. This has added to the confused understanding of “citizenship” in Australia. In this context, the court uses “citizenship” as a concept linking rights to personhood — a universal concept concerning human beings living in a political community. This reflects the lack of clarity in law on the subject and the varying uses of the expression of “citizenship” as an inclusive concept and as an exclusive legal status. Often these references by the court are in the context of a common law of citizenship.166 The common law has been the source of much litigation concerning rights, yet these are not only reserved for Australian citizens. In Re Bolton; Ex parte Beane (1987) 162 CLR 514, Bolton was an American citizen who had deserted the United States army, which then sought his return. He was detained by the Australian army and petitioned the High Court for writs of habeas corpus for his release. Brennan J declared: “[t]he laws of this country secure the freedom of every lawful resident, whether citizen or alien, from arrest and surrender into the custody of foreign authorities on a mere executive warrant.”167

Li Wan Quai v Christie (1906) 3 CLR 1125; Attorney-General (Cth) v Ah Sheung (1907) 4 CLR 949; Ah Yin v Christie (1907) 4 CLR 1428; Potter v Minahan (1908) 7 CLR 277. See also Crock and Berg, Immigration Refugees and Forced Law (2011). 163 In the first edition of this book, the research involved identifying High Court cases where the word “citizen” appeared in the reported judgment. Approximately 300 cases were identified (31 July 2001). This second edition has just identified the central High Court decisions rather than mirroring that research beyond 31 July 2001. 164 Air Caledonie International v Commonwealth (1988) 165 CLR 462. 165 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 303–305 per Gaudron J. For further discussion about Gaudron J’s approach to citizenship, see Rubenstein, “Meanings of Membership: Mary Gaudron’s Contributions to Australian Citizenship” (2004) 15 Public Law Review 305. 166 See also Mason, “Citizenship” in Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) p 35. 167 Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 521.

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His point was general: the laws of the country apply to citizens and non-citizens. As Gibbs CJ states in Actors and Announcers Equity Association v Fontana Films (1982) 150 CLR 169: It is unlikely, for example, that it was intended that the Parliament might provide that the rights and duties of aliens should be determined by a special law, different from that which applies to Australian citizens, in relation to such matters as contracts, torts, succession and criminal responsibility.168

Thus, in Chapter 6, many of the torts, contracts and criminal law cases are highlighted where “citizen” has been used in discussing people’s rights. It is unclear whether these common law “citizenship” rights will ever be implied by the High Court as constitutional rights that Parliament cannot override.169 What is clear, though, is that the court, in dealing with legal issues associated with citizenship, has not confined its discussion on the rights and responsibilities of common law citizenship to legal citizens. Underlying this is a conception of the state enforcing the rule of law and protecting human rights. This incorporates broader aspects of citizenship. It reflects a desire to incorporate the normative notions of citizenship within the legal framework. It shows the court using the term “citizen” to represent a person beyond the legal citizen; it is rather the “good citizen”, the participating, civic-minded member of the community to whom the court is referring. Juridically included by the term is the person deserving of the protection of the state and of equality of treatment, regardless of whether the person is a citizen, permanent resident or temporary resident.170 Even if these rights are some day deemed constitutionally protected, it is also not clear whether these rights will be extended to non-citizens. While it appears that the court has included those very non-citizens as deserving of protection through the common law, it is questionable whether they would be included in a framework of a constitutionally entrenched bill of rights. In fact, in the one High Court case to deal with implied constitutional rights and their extension to non-citizens, the court was not clear about the breadth of the protection.171 In any future discussions about a bill of rights, the Constitution and citizenship, these distinctions will need to be transparent and resolved through extensive public debate.

168 Actors and Announcers Equity Association v Fontana Films (1982) 150 CLR 169 at 181–182. 169 However, the more recent pronouncements of the court regarding implied rights, as expressed in cases such as Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567, would suggest that such an implication is unlikely. 170 Note, however, that the Federal Court has not guaranteed the same protection of natural justice, for instance, to unlawful non-citizens. See Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 246 at 294, where Nicholson J (Jenkinson J concurring at 247) explained that the Migration Act 1958 (Cth) denied the application of natural justice to detained persons. Carr J dissented on this point at 271. 171 See the discussion on Cunliffe v Commonwealth (1994) 182 CLR 272 in Chapter 6 at [6.130] and [6.210].

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EXECUTIVE EXPRESSIONS OF CITIZENSHIP: THE SPECIAL CASE OF “HONORARY AUSTRALIAN CITIZENSHIP” [1.120] On 6 May 2013, Australia’s first honorary citizenship was awarded to Raoul Wallenberg, the Swedish diplomat who put his own life at risk to issue “protective passports” and provide shelter for as many as 100,000 Jews in Budapest during World War II. Wallenberg disappeared in 1945. Wallenberg had never been to Australia; his connection to the country was through the lives of those he saved who eventually settled in Australia. Speaking at the honorary citizenship ceremony, Prime Minister Julia Gillard commented: Wallenberg never saw our lovely land in his 34 years on earth. And yet today we join his name with that of our nation as its first honorary citizen. I believe this is entirely fitting: as a tribute to this man of “moral courage and heroic example”. As a statement of the values Australians hold close to our hearts. As an expression of our deep gratitude for all that our nation gained when so many saved by Wallenberg came to these shores.172

Honorary Australian citizenship is not made under the Australian Citizenship Act 2007 (Cth) and is not a legal status. Rather, it was a “symbolic recognition of Mr Wallenberg’s tireless devotion to human life during the Holocaust”173 made by executive act of the Governor-General and published in the Gazette.174 It is not clear whether any further conferrals of honorary Australian citizenship will be made but it broadens our sense of the meaning and value of citizenship in Australia.175

FUTURE OF CITIZENSHIP IN AUSTRALIA [1.130] There are many areas raised in this chapter and throughout this book calling into question some fundamental issues about citizenship. These issues remain just as relevant today as they were in 2002, when the first edition of this book was published. First, there is the question of its omission from the Australian Constitution. This is an essential area in need 172 Gillard, “Remarks at Honorary Citizenship Ceremony for Raoul Wallenberg” (Speech delivered at the Honorary Citizenship Ceremony for Raoul Wallenberg, Canberra, 6 May 2013). 173 Gillard, “Honorary Australian Citizenship to be Awarded to Raoul Wallenberg”, Media Release (15 April 2013). 174 Commonwealth of Australia, Gazette, “Recognition of Raoul Wallenberg as an Honorary Australian Citizen”, No S 53 of 2013 (6 May 2013). 175 Honorary Australian citizenship must be distinguished from honorary citizenship of particular cities or places in Australia. For example, tennis greats Evonne Goolagong Cawley, Roy Emerson and Ken Rosewall, Italian conductor Riccardo Muti, and performer Lady Gaga have all been made honorary citizens of Sydney.

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of review. As Chapter 2 highlights, the issues that concerned delegates in the constitutional debates are still relevant to contemporary citizenship debates. Any future constitutional reform should include discussion on the place of citizenship and who should be included in the Constitution’s protection. Any discourse on the place of rights in the Australian Constitution should also include whether the rights are for all persons, or only formal citizens. This will involve similar questions to those raised in Chapter 5 when looking at the legislation that discriminates upon the basis of some form of membership in Australia. There has never been a comprehensive public debate about those pieces of legislation and their impact upon people’s experience of membership. A more inclusive Australia would see less emphasis on one’s formal status when dealing with the range of areas discussed in Chapter 5. The future of the Australian Citizenship Act 2007 (Cth) is also considered in greater detail in Chapter 7. There are many aspects of the Act that reflect upon a philosophical approach to Australian citizenship. One example, explained in Chapter 4 at [4.690] is the interpretation of certain discretions of the Minister under the Act, such as s 21(5). Section 21(5) provides an avenue for children to obtain Australian citizenship, independently of their parents, before they turn 18. Section 24(2) confers a discretion on the Minister to refuse to approve an application under s 21(5) despite the child being eligible for citizenship under that section. Since 2009, a child must also be a permanent resident in order to be eligible to apply for a conferral of Australian citizenship under s 21(5). Before the amendment, the Minister had the power to refuse an application where a child eligible under s 21(5) was not a permanent resident. However, the exercise of this discretion was guided by the best interests of the child176 and the application of policy. Permanent residence was a policy requirement, but under that policy, the Minister was required to consider the full circumstances of the case, including the best interest of the child, to determine whether the application nevertheless warranted approval because of the unusual nature of those circumstances.177 Cases often turned on this, with citizenship being granted due to consideration of the child’s safety, standard of living,178 housing, health care, relationships, communication, education and identity.179 While the substance of the best interests and unusual circumstances inquiries remains unchanged in the current policy for applicants under 176 Australian Citizenship Instructions (Cth) (21 September 2009–8 November 2009) Ch 5. 177 Australian Citizenship Instructions (Cth) (21 September 2009–8 November 2009) Ch 5. 178 See, eg, Re Paul and Minister for Immigration and Citizenship (2010) 116 ALD 321; [2010] AATA 411. 179 See, eg, Re SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645; [2009] AATA 539.

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the age of 16,180 the 2009 amendment to s 21(5) has reduced the scope of their application. The legislative requirement of permanent residency means that children who are not permanent residents are no longer eligible to apply for Australian citizenship under s 21(5). Thus, there is no scope for the exercise of Ministerial discretion under s 24(2) and no application of policy considerations.181 Even before the amendment, while the best interests of the child were a primary consideration, they were not paramount and could be outweighed by other considerations, with the tribunal emphasising that it “is clear from the language of the Act, citizenship is not conferred lightly and is a ‘privilege not a right’”.182 This example is interesting on two levels. First, it highlights a policy of refusal in the Australian citizenship framework; in the above example that policy led to the recent legislative amendment to preclude children who are not permanent residents from eligibility for Australian citizenship. Second, it emphasises citizenship as a privilege not to be granted lightly. Both emphasise citizenship as an exclusive notion as opposed to an inclusive expression of membership.183 Citizenship as a privilege, and questions considered throughout the book on the appropriate approach to citizenship, must be considered in light of the changed nature of the global framework within which domestic citizenship operates. Globalisation and its impact upon the sovereignty of states will continue to affect the way citizenship bears on individuals, both domestically and internationally. Globalisation is examined in greater detail in Chapter 7 and is highlighted in several contexts: in its immediate impact upon the Australian Citizenship Act 2007 (Cth) and the 2015 Amendments around terrorist activity beyond and within Australia, in its impact upon questions of governance and the citizen’s power over government and, finally, in terms of the impact of globalisation on the rights of non-citizens in Australia. Ultimately, the question for policy-makers, legislators and public commentators is whether citizenship should be maintained as an exclusive notion, or whether a more inclusive approach to membership is more appropriate as we move further into the 21st century.

180 See Citizenship Policy (Cth) Ch 7 p 76: https://www.border.gov.au/Citizenship/ Documents/acis-june-2016.pdf. 181 Since 1 July 2013, a best interests inquiry must be made in the exercise of any discretion under the Citizenship Act 2007 (Cth), including s 24(2): Citizenship Policy (Cth) Ch 20. However, no discretion can be exercised under s 24(2) in relation to a child who is no longer eligible to apply under s 21(5): Citizenship Act 2007 (Cth) s 24(1A). 182 Re Ji-Eun Lee and Minister for Immigration and Citizenship [2010] AATA 906 at [32]. 183 The United Kingdom case of R (Montana) v Secretary of State for the Home Department [2001] 1 FLR 449 rejected the argument that a “common citizenship” is a necessary component of family life for the purpose of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Chapter 2

Australian Citizenship in the 1890s and the Australasian Federal Convention Debates: Lessons for the 21st century [2.10] INTRODUCTION ................................................................................................................. 35 [2.20] Themes from the Federal Convention Debates ............................................................... 37 [2.30] HISTORICAL CONTEXT .................................................................................................... 38 [2.40] Exclusion as a prelude to Convention Debates .............................................................. 39 [2.50] CITIZENSHIP IN CONSTITUTIONAL CONVENTION DEBATES ............................ 41 [2.60] Difficulties in definition ....................................................................................................... 42 [2.100] Concerns about double citizenship ................................................................................. 45 [2.130] Rights and responsibilities ................................................................................................ 49 [2.140] Exclusion/inclusion ............................................................................................................ 50 [2.150] CITIZENSHIP AND THE CURRENT FRAMEWORK ................................................. 53 [2.160] Difficulties of definition ..................................................................................................... 53 [2.170] Double citizenship – the case of jury service ................................................................ 54 [2.200] Citizenship and membership – rights and responsibilities ......................................... 57 [2.230] Exclusion .............................................................................................................................. 60 [2.240] CONCLUSION .................................................................................................................... 62

INTRODUCTION1 [2.10] Again, I ask are we to have a Commonwealth citizenship? If we are, why is it not to be implanted in the Constitution? Why is it to be merely a legal inference? 1 This chapter is based on my article, “Citizenship and the Constitutional Convention Debates: A Mere Legal Inference?” (1997) 25 Federal Law Review 295 and some further work I have done on the place of race in the 1890s, parts of which also appear in “Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia” (2000) 24 Melbourne University Law Review 576. Minor changes were made to this chapter in the second edition of this book.

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These exasperated words were uttered by John Quick on Wednesday, 2 March 18982 in the concluding stages of the Australasian Federal Convention Debates that led to the formation of the Australian Constitution.3 Quick wanted a definition of “citizenship” in the Constitution. The Commonwealth, he argued, should have power to deal with Commonwealth citizenship4 and membership of the Commonwealth.5 He advocated a “common citizenship for the whole of the Australian Commonwealth”.6 His proposals were rejected. Despite the rejection, “citizenship” was nonetheless discussed by the Convention delegates. The topic of Australian “citizenship” was first raised in the 1891 Convention7 when the delegate from New South Wales, Edmund Barton, with his “judicial dignity of speech”,8 discussed the nature of representation, and referred to the Australian people as citizens of both a federal entity and a State entity.9 However, citizenship was mainly discussed later in the Melbourne Convention of 1898 in the context of cl 110, which covered the treatment of people from one State who were present in another State (this later became s 117 of the Australian Constitution)10 and within cl 52, which became s 51, outlining the areas upon which the Commonwealth could legislate. The antecedents of the 1898 discussions on cl 110 were in the 1891 Sydney Convention with the attempted insertion by the “republican” Andrew Inglis Clark of a section based on the United States Constitution 14th Amendment.11 2 Official Record of the Debates of the Australasian Federal Convention (Melbourne 1898) (Legal Books, 1986), Vol V, 1767 (hereinafter referred to as Record of the Debates of the Convention). 3 The Melbourne session of the Convention ran from 20 January 1898 to 17 March 1898: see Quick and Garran, The Annotated Constitution of the Australian Commonwealth 1901 (1995) p 194. 4 Quick moved that a new subsection be introduced to cl 52 (Powers of the Parliament) (XXIA Commonwealth Citizenship): Record of the Debates of the Convention (Melbourne 1898) Vol V p 1749. 5 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1753. 6 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1751. 7 The first National Australasian Convention “empowered to consider and report upon an adequate scheme for a Federal Constitution”, was duly convened in Sydney on 2 March 1891. 8 Deakin, “The Federal Story” in Macintyre (ed), “And be one People”: Alfred Deakin’s Federal Story (1995) p 34. 9 Record of the Debates of the Convention (Sydney 1891) Vol 1 pp 93–95. 10 “A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen in such other State.” 11 Inglis Clark was influential on the question of equal protection of citizens, although he does not figure prominently in this chapter because he was not present at the 1898 Convention upon which most of the discussion is based. For an analysis of Clark’s involvement, see Williams, “Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the 14th Amendment” (1996) 42 Australian Journal of Politics and History 10 and Williams, “With our Eyes Open: Andrew Inglis Clark and Our Republican Tradition” (1995) 23 Federal Law Review 149.

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Clark’s motivations were rights-based, and were quite different from Quick’s desire for a common citizenship. This was highlighted in 1898 when Quick voted against the inclusion of cl 110, which sought to provide equal protection for the very citizens he was seeking to define.12 These different understandings of the meaning and value of citizenship were essential ingredients in the failure to insert the term into the Constitution.

Themes from the Federal Convention Debates [2.20] In fact, four main themes arise from the Convention discussions on “citizenship”: the difficulty in defining the term, the consequences of double (federal/State) citizenship, the rights of citizens and, finally and most importantly, the desire to determine who should be excluded and who should be included in the new Australian nation. Of course, in many instances the themes overlapped and intertwined. Indeed, within the themes, the legal and normative notions of citizenship13 are highlighted. Those issues and themes are examined in this chapter, first in the historical context of the discussions and, second, as issues currently in the public domain in Australia, to illustrate their continuing importance to any constitutional review and to the future of Australian citizenship. The use of historical material in reviewing constitutional issues is controversial. The legal debate primarily revolves around constitutional interpretation: to what extent should the court refer to the intentions of the framers of the Constitution in applying the Constitution today?14 Yet that is not the primary reason for looking at the historical material in this chapter.15 Rather, it is a basis for reconsidering the place of citizenship in the Australian Constitution for the 21st century. The fact that the framers chose not to define “citizenship” has had an impact on the legal status of citizenship in Australia. This is because the Constitution provides a framework and structure within which legal principles develop.16 Without that framework, citizenship has had a slow, 12 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 685. I thank John Williams for highlighting this point for me. 13 As set out in Chapter 1 at [1.20]. 14 See Schoff, “The High Court and History: It Still Hasn’t Found(ed) What It’s Looking For” (1994) 5 Public Law Review 253, which analyses the rule in Cole v Whitfield (1988) 165 CLR 360 and its application in subsequent cases. See also Irving, “Constitutional Interpretation, the High Court, and the Discipline of History” (2013) 41 Federal Law Review 95 and the 2015 Sawer lecture at the Australian National University by Daphne Barak Erez, “History and Memory in Constitutional Adjudication” (2016) Federal Law Review (forthcoming). 15 Although, the absence of the term “citizen” in the Constitution has had significant legal consequences with which the High Court has been involved. See further discussion in Chapter 6 at [6.20]. 16 Note a contrasting argument presented in the US context where Bickel argues in “Citizenship in the American Constitution” (1973) 15 Arizona Law Review 369 that “[i]t is gratifying, therefore, that we live under a Constitution to which the concept of citizenship matters very little indeed” (p 387).

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staggered, and disconnected legal evolution.17 In looking at the 1890s Convention Debates and analysing the reasons why Australian citizenship is absent from the Constitution, an assessment of whether citizenship should continue as a mere legal inference in the foundational legal document is possible.

HISTORICAL CONTEXT [2.30] The federal movement in Australia and the drafting of the Constitution are well documented.18 Importantly, most of the participants mentioned in this chapter were legally knowledgeable and were politically involved in the debates about Federation.19 There were significant figures among them, no doubt, but no matter how illuminating their individual biographies, the story they tell is constrained and narrow. None of the participants were women, and although the status of women came up once in the citizenship discussion,20 the place of women in the context of citizenship was far from the delegates’ minds. There were no Indigenous Australians represented either and the place of the Aboriginal community and their citizenship was remote from the delegates’ deliberations. They did discuss voting rights when looking at citizenship but they did not directly refer to the rights of Aboriginal people to vote. Indirectly, Aboriginals’ voting rights were contemplated when calculating the numbers of people for the purpose of s 24. The South Australian delegate and young Premier, John Cockburn, thought those “natives who 17 As shown through Chapters 3, 4 and 6. 18 Deakin, “The Federal Story” in Macintyre (ed), “And be one People”: Alfred Deakin’s Federal Story (1995); Quick and Garran, The Annotated Constitution of the Australian Commonwealth 1901 (1995); La Nauze, The Making of the Australian Constitution (1972); Martin, Essays in Australian Federation (1969); Irving, To Constitute A Nation: A Cultural History of Australia’s Constitution (1997); Irving (ed), The Centenary Companion to Australian Federation (1999); Headon and Williams, Makers of Miracles: The Cast of the Federation Story (2000). See also Williams and Bannon (eds), The New Federalist: The Journal of Australian Federation History. 19 Most of the discussion emanates from the 1898 Convention in which the following delegates are important: Edmund Barton MLC QC (NSW); The Right Hon Charles Kingston, Premier (SA); Dr John Quick (Vic); Josiah Henry Symon QC (SA); The Hon James Henderson Howe (SA); The Hon Sir John Downer QC, KCMG, MHA (SA); The Rt Hon Sir John Forrest, Premier (WA); The Hon John Alexander Cockburn, Minister for Education (SA); The Hon Joseph Hector Carruthers, MLA, Secretary for Lands (NSW); The Hon Isaac Alfred Isaacs, MLA, Attorney-General (Vic); The Hon Richard Edward O’Connor MLC, QC (NSW); Bernhard Ringrose Wise (NSW); The Hon Adye Douglas, President, Legislative Council (Tas); Patrick McMahon Glynn BA, LLB (SA); The Hon John Hannah Gordon, MLC (SA); Henry Bourne Higgins, MLA (Vic); William Arthur Trenwith MLA (Vic); and The Hon Frederick William Holder, MHA, Treasurer (SA). All the titles are cited in Quick and Garran, The Annotated Constitution of the Australian Commonwealth 1901 (1995) pp 260–261. Andrew Inglis Clark was not present at the 1898 Convention. However, his original draft of the Constitution in 1891 was the basis for much discussion, as was his Tasmanian amendment to cl 110, which was central to the discussion. 20 See further below in “Citizenship/membership” at [2.90].

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are on the rolls” should not be debarred from the count.21 Indeed, the traditional records of the federal movement pay almost no attention to the place of women and the Aboriginal movement. This has only recently been addressed.22 The jointly authored commentary on the Constitution by Victorian delegate, John Quick, and legal adviser, Robert Garran, published in 1901, provides useful reflective material on the term “citizen”.23 However, it does not illustrate how extensive the discussion was, nor how varied the motivations for exclusion of the term.24

Exclusion as a prelude to Convention Debates [2.40] The historical and social evolution of membership of Australia from the late 1850s established the theme of this book – exclusion and inclusion – and is still relevant to notions of citizenship today. From the 1850s onwards, all the colonies agreed on restricting Asian, particularly Chinese, immigration. Anti-Chinese sentiment developed during the gold rush era, when many Chinese men arrived on contracts formed through agents in China to replace the labour lost to the goldfields. By 1859 there were 42,000 Chinese people in Victoria, which amounted to a ratio of about one in 12 to 14 Europeans.25 The Victorian Legislative Council appointed a Select Committee on Chinese Immigration in 1857 to frame legislation to control the flood of Chinese immigration, resulting in “An Act to Regulate the Residence of Chinese Population in Victoria”.26 Twenty-three years later these concerns sounded again at the Australasian Inter-Colonial Conference of December 1880 to January 1881. A report to the British Government at the conclusion of the conference stated: In all the six Colonies a strong feeling prevails in opposition to the unrestricted introduction of Chinese, this opposition arising principally from a desire to preserve and perpetuate the British type in the various populations.27 21 Record of the Debates of the Federal Convention (Adelaide 1897) Vol III p 1020. Note s 25, which allows the State to disqualify persons of any race from voting and, if so disqualified in the State, they are not to be counted. 22 Irving (ed), A Woman’s Constitution (1995) deals with women and their involvement with the Federation movement. The place of Aboriginal people in the Constitution has been one of the concerns of the Council for Reconciliation. See also Reynolds, Aboriginal Sovereignty (1996). 23 Quick and Garran, The Annotated Constitution of the Australian Commonwealth 1901 (1995). Commentary on citizenship can be found at pp 449, 491, 776 and 955. 24 For another critique of Quick and Garran’s account, see Williams, “Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the “14th Amendment”” (1996) 42 Australian Journal of Political History 10 at 16. 25 Rourke, “White Australia – Origins” (1957) 20 Current Affairs Bulletin 170, extracted in Yarwood, Attitudes to Non-European Immigration (1968) p 19. 26 Chinese Regulation Act 1857 (Vic). 27 Memorial from the Colonial Secretary’s Office to the Secretary of State for Colonies (25 January 1881), reproduced in Price, The Great White Walls Are Built: Restrictive Immigration to North America and Australasia 1836–1888 (1974) pp 168–169.

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By 1865, Victoria had legislated the Chinese Immigrants Statute 1865 (Vic) and, after the Inter-Colonial Conference of 1880–1881, The Chinese Act 1881 (Vic) was enacted. The Act imposed a £10 entry tax on every person arriving in Australia, and a restriction of one immigrant for every 100 tons of the vessel. In 1881, in New South Wales, Premier Sir Henry Parkes suggested even further restrictions be imposed on entry, for example, onerous quarantine provisions and restrictions on the ability of noncitizens to hold real property. Concerned about the nature of citizenship, Parkes claimed it was better to “prevent the arrival of the immigrants than to discourage or harass them after they are arrived”.28 Unless you: permit them to have the same rights and privileges as you possess to the full measure of citizenship, then … you are simply supporting them in coming here in order to establish a degraded class … an eternal curse to the country.29

By 1888 crisis enveloped the issue. In 1887 Chinese Commissioners appointed by the Emperor reported back on conditions among Chinese emigrants in various colonies, including Australia. They identified the entry tax as a discriminatory measure directed against Chinese only, and saw this as a clear breach of Anglo-Chinese treaties. This annoyed the Australians and embarrassed the British Government, leading the British to request full details of the law relating to Chinese immigrants.30 The public and political debate surrounding the issues was also extreme. On 27 April 1888, the “Afghan” arrived in Hobsons Bay, Victoria. The ship was refused entry because some people aboard allegedly had fraudulent papers. This was despite the offer by the ship’s master, George Roy, to pay the Collector of Customs £10 for every immigrant on board, as provided by s 3 of The Chinese Act 1881 (Vic). Moreover, those entitled to land were denied entry. The ship was then forced to sail to New South Wales.31 Parkes attempted to use this to his political advantage by seeking to set aside the existing law and introduce a new one indemnifying his government against legal proceedings (hauntingly mirrored in current Australian legislation),32 raising the tonnage restrictions from 100 to 300 28 New South Wales, Legislative Assembly, Parliamentary Debates (13 July 1881) p 97 (Henry Parkes). 29 New South Wales, Legislative Assembly, Parliamentary Debates (13 July 1881) pp 97, 100; and New South Wales, Legislative Assembly, Parliamentary Debates (2 August 1881) pp 414–417 (Henry Parkes). 30 Sir H T Holland, Letter from Sir H T Holland to the Governors of the Australasian Colonies and the Governor-General of Canada in United Kingdom, Correspondence Relating to Chinese Immigration into the Australian Colonies, with a Return of Acts Passed by the Legislatures of Those Colonies and of Canada and British Columbia on the Subject (C 5448, 1888) p 2; see also Price, The Great White Walls are Built. Restrictive Immigration to North America and Australia 1836–1888 (1974) p 186. 31 Chung Teong Toy v Musgrove (1888) 14 VLR 349 at 350–352 per Williams J. 32 As explained in Crock, Immigration and Refugee Law in Australia (1998) p 211, the impact of the findings in the High Court decision, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim), that the plaintiff’s detention may have been unlawful, meant that, “[w]ithin days of the judgment in Lim,

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tons and the entry tax from £10 to £100. However, due to time restraints, he was unable to pass the legislation through the Legislative Council. One of the people aboard the “Afghan”, Chung Teong Toy, disembarked in New South Wales and returned to Victoria to bring an action in the Victorian Supreme Court against the Collector of Customs for Victoria for preventing him from landing in Victoria. The case dealt with foundation legal concepts of “sovereignty” and “citizenship”. The majority of the Full Court of the Victorian Supreme Court found for the plaintiff, holding the prerogative excluded aliens and did not exist as part of responsible government in Victoria.33 Accordingly, the Victorian Government lacked power to preclude the entry of aliens into the colony. However, on appeal to the House of Lords, the Privy Council could not assent to the proposition that an alien refused permission to enter British territory could, in an action in a British court, compel the decision of such matters involving “delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament, and the relations of this country to her self-governing colonies”.34 One of the most important devices of citizenship, the right to exclude aliens, was set at this early stage.35 This background informs an understanding of the records of the Debates themselves, which are now analysed.36

CITIZENSHIP IN CONSTITUTIONAL CONVENTION DEBATES [2.50] Throughout the text below, “citizenship” is discussed as a singular concept, yet its varied meanings underlay the Convention delegates’ differing approaches. However, “citizenship” was not necessarily being discussed as a progressive project in Australia in the 1890s, indeed it was potentially a device of exclusion and a term for an enhanced national identity, with a particular sense of “self”, as explained below. applications were made to the High Court seeking damages for wrongful detention. The government’s response was to enact s 54RA, later s 184 of the Act, stipulating any damages payable for wrongful detention be limited to one dollar per day. This provision was repealed in 1995, and replaced by provisions which attempt to retrospectively remedy the illegality (if any) attaching to the detention of designated persons: see Migration Legislation Amendment Act (No 6) 1995 (Cth), s 9” (citation omitted). Since that period, there has been a series of legislative moves limiting the government’s liability, with the use of retrospective legislation. See further, Crock and Berg, Immigration Refugees and Forced Law (2011). 33 Chung Teong Toy v Musgrove (1888) 14 VLR 349 at 422–423 per Williams J, at 431–432 per Holroyd J, at 434 per A’Beckett J, at 443 per Wrenfordsley J. 34 Musgrove v Chun Teeong Toy [1891] AC 272 at 283. 35 For a further discussion, see Rubenstein, “The Influence of Chinese Immigration on Citizenship” in Couchman, Fitzgerald and Macgregor (eds), “After the Rush: Regulation, Participation and Chinese Communities in Australia 1860–1940” (2004) Otherland Literary Journal 21. See also Prince, “Aliens in their Own Land: “Alien” and the Rule of Law in Colonial and Post-federation Australia” (PhD thesis, ANU, 2015): https://openresearchrepository.anu.edu.au/handle/1885/101778. 36 Record of the Debates of the Convention (1986).

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Difficulties in definition [2.60] The exasperation of Quick in his attempts to place citizenship in the Constitution was matched by the “powerful voice”37 of South Australian delegate, Josiah Symon, who originally opposed defining the term: I do not think that it is necessary to frame a definition of “citizen”. A citizen is one who is entitled to the immunities of citizenship. In short a citizen is a citizen. I do not think you require a definition of citizen any more than you require a definition of “man” or “subject”.38

But what did “citizenship” mean in Australia in the 1890s? There was no existing definition of a “citizen” of a colony.39 What was the difference between the suggested legal definition and the rights flowing from the status? What was the distinction between citizens and members? Should a definition give rise merely to a description of an individual’s legal status, or should the definition also prescribe the substantive nature of citizenship? Throughout the various discussions the delegates were concerned to include in the Constitution only words that were absolutely necessary, in case the meaning intended should be misconstrued. Beneath this concern was a belief in representative democracy, which meant to the delegates that those who were elected to represent the people would act responsibly. Rather than leaving any ambiguities for a court to determine, there was great faith in the parliamentary system Australia was inheriting. The Victorian representative, William Trenwith, in his “sledgehammer style of oratory”,40 found it “utterly impossible to conceive that … Parliament will proceed to infringe any of the liberties of the citizens”41 and this was reflected in a reluctance to include rights in the constitutional text. In discussing cl 110, dealing with rights and citizenship, the New South Wales “little man with a great voice”,42 Joseph Carruthers, pointed out that “the Constitution should be so framed that he who runs may read, that there should be no pitfalls on account of ambiguous phraseology”.43 As it turned out, citizenship was the epitome of ambiguity. Victorian representative, Isaac Isaacs, “intellectual to the finger tips”,44 encapsulated 37 See Deakin’s description of Symon in Deakin, “The Federal Story” in Macintyre (ed), “And be one People”: Alfred Deakin’s Federal Story (1995) p 61. 38 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1782 (emphasis added). 39 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1781. 40 Deakin, “The Federal Story” in Macintyre (ed), “And be one People”: Alfred Deakin’s Federal Story (1995) p 71. 41 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1761. 42 Deakin, “The Federal Story” in Macintyre (ed), “And be one People”: Alfred Deakin’s Federal Story (1995) p 66. 43 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 667. 44 Deakin, “The Federal Story” in Macintyre (ed), “And be one People”: Alfred Deakin’s Federal Story (1995) p 70.

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the position, rejecting Quick’s proposals: “I fear that all the attempts to define citizenship will land us in innumerable difficulties”.45 Birthright/naturalisation? [2.70] Quick saw no such difficulty in defining “citizenship” and placing it in the Constitution. It would be a matter of “all persons resident in the Commonwealth, being natural born or naturalised subjects of the Queen, and not under any disability imposed by the Federal Parliament”.46 However, in Symon’s view, citizenship was a birthright that could not be, and should not be, handed over to any government, federal or otherwise. In placing the power over citizenship in Commonwealth hands, it could lead to the power to deprive a person of their citizenship, he reasoned.47 Symon was like-minded about the two ways of recognising citizens: by birth in a State (which he believed would then entitle the person to Commonwealth citizenship); or by naturalisation. His description of entitlement to naturalisation was loaded with meaning about the nature of citizenship: When you have immigration, and allow different people to come in who belong to nations not of the same blood as we are, they become naturalised, and are thereby entitled to the rights of citizenship.48

Birthrights linked with blood related to the notion of “citizenship” as an intrinsic reflection of membership of a particular racial group. The racial context of this discussion will be considered later but, for present purposes, Symon was identifying citizenship as an intrinsic status, which then entitled a person to rights. Others saw it in the reverse: rights giving rise to citizenship. Legal status through rights [2.80] Richard O’Connor, the New South Wales delegate, was content to define entitlement to the legal status in a circular fashion: Every person who has rights as a member of the Commonwealth must be a citizen either of some state or some territory. It is only by virtue of his citizenship of a state or of a territory that he has any political rights in the Commonwealth.49

In his view, there was no need to point out that every person is a citizen of the Commonwealth because “citizenship flows from the rights you give every person in every portion of the Commonwealth under the Constitution”.50 In this context, the franchise and the concept of political 45 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1797. 46 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1752. 47 This raised federal issues as well, discussed below in “Federal/State” at [2.110]. 48 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1763 (emphasis added). 49 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1754 (O’Connor). 50 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 672.

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liberty became an important reference point in defining “citizenship”.51 This caused problems of its own, as there were many people who did not have the vote, women for example, whom delegates regarded as citizens. This led the delegates to consider the difference between citizenship and membership of the general community. Citizenship/membership [2.90] The distinction between citizenship and membership was most vital for the discussions over cl 110, which in 1898 was drafted as: A state shall not make or enforce any law abridging any privilege or immunity of citizens of other states of the Commonwealth nor shall a state deny to any person within its jurisdiction the equal protection of the laws.52

And this was integrally linked to the power of the Commonwealth over citizenship. O’Connor raised an important consequence of placing the power over citizenship in s 51: I would point out to Dr Quick that he is proposing to give a power to regulate or describe rights of citizenship, when we really do not know … what is meant by a citizen … Does he mean only the political rights which you give to every inhabitant of a state who is qualified to vote, or does he go beyond that … and describe every person who is under the protection of your laws as a citizen? The citizens, the persons under the protection of your laws, are not the only persons who are entitled to take part in your elections in your government, but every person who resides in your community has a right to the protection of your laws and to the protection of the laws of all the states, and has the right of access to your courts.53

Symon also pointed out the differences between the legal status of citizen and the notion of citizenship as membership of the community. The latter was described as the broad sense of the term citizenship, or the general sense of the term. This was in contrast to the more particular sense, when it was not synonymous with “resident, inhabitant or person”.54 This was an important distinction for cl 110, which was seeking to protect people from one State being discriminated against in another State. Symon illustrated this difference in the following manner: [T]he expression “citizen” does not mean only persons exercising the franchise; it includes infants and lunatics, if you like. Every one who is recognised as an

51 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1765 (Barton). 52 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 664. 53 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1761. This mirrors the same discussion about rights in a constitution, and the extent to which legislation should extend to citizens and non-citizens, as discussed in Chapter 5. 54 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1796 (Isaacs and O’Connor).

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inhabitant, and is under the laws, is a citizen. Women in most of the colonies except South Australia do not exercise the franchise, but no-one can say they are not citizens.55

Cockburn asked: “If the word citizen simply means resident or inhabitant, why should we go to all this trouble about it?”56 Because of the difference between the broad and narrow view of citizenship, it was better not to use the term citizen, he argued, and O’Connor recommended the use of the formula “every subject of the Queen resident in a state”.57 In O’Connor’s view, the accurate description of a member of the Australian community was “a subject of the Queen resident in the Commonwealth”.58 In each of the different discussions involving the definition, the Convention delegates could not agree upon the way to describe Commonwealth citizenship. It was complicated by questions of birthright and naturalisation, by legal status compared to the substantive consequences of citizenship, and by the distinction between citizen and resident. Several phrases were used in the Constitution to describe members of the Australian community: “subjects of the Queen”, “people of the Commonwealth” and “people of the States”. The inconsistent use of these terms added to the ambiguity between “citizenship” and “membership” of the Australian nation. These are the very same ambiguities seen today in the difference between the legal and normative use of the word. However, the existence of the ambiguity was part of the reason for it becoming a mere legal inference.

Concerns about double citizenship [2.100] The term “double citizenship”, instead of “dual citizenship”, is used to refer to citizenship of both the Commonwealth and a State, because contemporary use of the term “dual citizenship” refers to citizenship of more than one country.59 Citizenship of another nation was discussed by the Convention delegates in the context of disqualification from representation in Parliament,60 but it was not referred to as dual citizenship, nor was it the subject of much debate. After all, “you cannot have two allegiances”.61 This suggests they excluded from Australian citizenship people who were citizens of other countries. The delegates 55 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1794 (emphasis added). The treatment of women in the constitutional debates is another interesting area in itself: see Cass and Rubenstein, “Representation/s of Women in the Australian Constitutional System” (1995) Adelaide Law Review 48; Irving, To Constitute A Nation: A Cultural History of Australia’s Constitution (1997). 56 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1795. 57 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1795. 58 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1796. 59 This is examined below at [2.190]. 60 Discussions about s 44 can be found in Record of the Debates of the Convention, “Guide to provisions”, Vol VI pp 405–411. 61 Record of the Debates of the Convention (Adelaide 1897) Vol III p 736.

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were therefore content to disqualify people whose allegiance was to a foreign power because “[p]ersons who have taken the oath of allegiance to a foreign power are not to be classed in the same category as citizens of the country for the purpose of joining in legislation”.62 This led to an interjection “[a]nd not to be trusted”!63 Federal/State [2.110] In resolutions recorded on 6 March 1891, Barton reminded the delegates: It must not be forgotten that there is to be a double citizenship conferred by this constitution upon every citizen of these states and of the great nation which we hope to found. If there is that double citizenship and there is not in all essentials a due representation of it even in questions of money, then the friction … in the relations between the senate and the house of representatives … would be merely a surface indication of deep-seated irritation.64

The relationship between the Commonwealth and the States was, of course, the essence of the Convention Debates; how to arrange the new Commonwealth at the same time as preserving and maintaining an appropriate role for the States? Victorian delegate Henry Bourne Higgins, with “his dogged courage and power of intellect”,65 used the terminology of citizenship at the 1897 Convention when discussing the appropriate balance of State representation, and cautioning against equal representation of the States: should not a citizen act directly on the Federation for the purposes of Federation, and why should not he act directly on the State for the purposes of the State.66

These discussions linked citizenship to its political core – the notion of democracy, and the nature of representation. In 1898 Barton continued with this line of argument, emphasising that the Constitution provided for the rights of citizenship, “so far as the choice of representatives is concerned”.67 At that time, New South Wales delegate Bernard Wise, supporting Quick’s proposals, suggested the delegates acknowledge a singular Australian citizenship over any State citizenship.68 Symon immediately refuted this because it expanded “the spirit of federation far beyond 62 Record of the Debates of the Convention (Sydney, 1897) Vol II, Barton, p 1013. 63 Record of the Debates of the Convention (Sydney, 1897) Vol II, Barton, p 1013. The significant debate, however, over the disqualification section was whether it should be constitutionally entrenched, or left to Federal Parliament to alter: Record of the Debates of the Convention (Sydney, 1897) Vol II, Glynn, p 1012. 64 Record of the Debates of the Convention (Sydney 1891) Vol 1 pp 94–95 (emphasis added). 65 Deakin, “The Federal Story” in Macintyre (ed), “And be one People”: Alfred Deakin’s Federal Story (1995) p70. 66 Record of the Debates of the Federal Convention (Adelaide 1897) Vol III p 101. 67 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1764. 68 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 675.

[2.110]

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anything any of us had hitherto contemplated”, reminding Wise that “the whole purpose of this Constitution is to secure a dual citizenship. That is the very essence of a federal system”.69 The distinction between a federation and a unified system was important for most of the delegates with lasting consequences for the term “citizen”. Clauses 110 and 52 were essential to the federal system, and the nature of citizenship became implicated and enmeshed in those contexts. Clause 52, (now s 51) is central to a federal system, in allocating the legislative power of the Commonwealth. The final version enumerated a list of 39 heads of power. These were not exclusive powers, the States still being entitled to legislate in these areas, subject to conflict with Commonwealth laws.70 Quick sought to insert subs “XXIA. Commonwealth citizenship” into cl 52.71 He recognised this as creating: two citizenships in this United Australia … citizenship of the state in which a person resides, the rights and duties of which will be determined by the state, and there will be the wider federal citizenship, the rights and duties the incidence of which will be defined by the Federal Parliament.72

This recognised two levels of rights and duties, with the potential of rights and responsibilities flowing from the States being different throughout the Commonwealth. The ambiguities inherent in this layered citizenship were foreseen by South Australian delegate, John Gordon, in his discussions about cl 110: Suppose in one state a whole class had an absolute exemption from service upon juries, would a member of such a class, if he went into another state, carry that immunity from service with him?73

The inconsistencies were too great for the delegates to resolve. However, the chief concern from the opponents of the cl 52 proposal was that the subsection proposed by Quick would be giving the Commonwealth too much power. Given the range of problems in defining “citizenship”, they felt it would result in the “handing over to the Federal Parliament something which is vague in the extreme, and which might be misused”.74 Symon forcibly cautioned: I do not want to place in the hands of the Commonwealth Parliament … the right of depriving me of citizenship.75

The delegates were, however, comfortable about depriving at least some people of their citizenship, namely, aliens. They were satisfied that this 69 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 675. 70 Section 109. 71 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1750. 72 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1751. 73 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 681. 74 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1761 (O’Connor). 75 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1764.

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was provided for anyway under the “naturalisation and aliens” power.76 In fact, Cockburn used the reference to aliens to support Quick’s proposal for a Commonwealth power over citizenship: If we place in the hands of the state the power of forcing on the Commonwealth an obnoxious citizenship, we shall be doing very great evil to the Commonwealth. This power should be in the hands of the Commonwealth, it should possess power to define the conditions on which the citizenship of the Commonwealth shall be given; and the citizenship of the Commonwealth should not necessarily follow upon the citizenship of any particular state.77

An “obnoxious citizenship”, in the context of their discussions, was likely to have been an Asian person or an Aboriginal person, as will be explained further in the discussion on exclusion.78 British subjects [2.120] The other context for considering double citizenship was a citizen’s identity as a British subject. Barton could not recollect the term “citizen” being used in any imperial enactments, and he did not think it had been used in the colonies either.79 Moreover, Isaacs contrasted Australia with other federal countries, such as Germany, whose Constitution was being used by delegates as an example of providing for a common citizenship.80 Unlike Germany, he reminded the delegates of their “citizenship of the British empire on the one hand, and the citizenship of the state on the other”.81 This issue, however, was not dwelt upon by the delegates. The amount of time spent discussing Australian citizenship emphasises that, even though the term “subject of the Queen” was used instead of “citizen”, there was a specific debate about the nature of Australia as a separate nation with its own membership and identity. Quick saw no problem with having Australian citizenship, for the “definition does not interfere with the term ‘subject’ in its wider relation as a member of the empire or subject of the Queen”;82 there was a clear sense of distinction between the two identities. The term “subject of the Queen” was used, however, because all attempts to define Australian “citizenship” landed them, in the words of Isaacs, in “innumerable difficulties”.83 76 Section 51(xix). See Record of the Debates of the Convention (Melbourne 1898) Vol V p 1764 and the further discussion about racism and exclusion. 77 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1764. 78 See below at [2.140]. 79 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1764. 80 Record of the Debates of the Convention (Melbourne 1898) Vol V pp 1758–1759. 81 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1759. He did support the inclusion of power over Commonwealth citizenship, for “[i]f that is to be found unnecessary, it will never be acted upon” (p 1760). 82 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1786. 83 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1797.

[2.130]

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The tensions inherent in double citizenship, in both the federal/State context and in the British Commonwealth context, were additional factors in “citizenship” becoming a mere legal inference.

Rights and responsibilities [2.130] The third theme, alluded to earlier, was the discussion about the rights and responsibilities flowing from citizenship. The context for this discussion was primarily cl 110 (later s 117), which in 1898 was drafted as: A state shall not make or enforce any law abridging any privilege or immunity of citizens of other states of the Commonwealth nor shall a state deny to any person within its jurisdiction the equal protection of the laws.84

The origin of the clause, although somewhat modified, was the 14th Amendment of the United States Constitution.85 The Tasmanian delegates proposed a version closer to the United States amendment by including a reference to the citizens of the States, who: shall be entitled to all the privileges and immunities of the Commonwealth in the several states … nor should a state deprive any person of life, liberty or property without due process of law.86

This led to a fuller discussion about the rights and responsibilities of citizenship with Isaacs explaining them by reference to the United States Constitution.87 In the United States, citizenship involved the right to: come to the seat of government to assert any claim he may have upon the government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions.88

O’Connor saw “political rights” as the only rights of citizenship. This was mirrored by Barton, who saw “the sum and substance of political liberty” being linked with the franchise.89 These rights and responsibilities in Barton’s view flowed from the English laws, which were within the power of the States. Trenwith was not concerned to define rights and responsibilities at all because the delegates had provided for the election to Parliament “on the broadest possible franchise”, so it was “utterly impossible to conceive that 84 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 664. 85 The amendment reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” 86 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 667. Andrew Inglis Clark was responsible for the drafting of this amendment: see Williams, “Race, Citizenship and the Formation of the Australian Constitution: Andrew Inglis Clark and the “14th Amendment”” (1996) 42 Australian Journal of Political History 10 at 14–16. 87 He referred to the Slaughterhouse cases 1872, 16 Wallace 36, cited in Record of the Debates of the Convention (Melbourne 1898) Vol IV p 668. 88 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 668. 89 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1765.

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such Parliament will proceed to infringe any of the liberties of the citizens”.90 The absence of women and minority delegates deprives us of their response and, furthermore, undermines the essence of what Trenwith purported to rely upon. A failure to define rights and responsibilities has had real consequences for women and minority groups to this very day.91 The other important corollary to rights and responsibilities (even if they could not be defined) was the desire for equality of rights between the States. This was also central to the final theme raised in the debates: who would be excluded and who would be included in the “equality” equation?

Exclusion/inclusion [2.140] The historical context discussed as the background to the Convention Debates92 adds another pervasive dimension to the debates. An underlying and explicit element of the debate was a fear of defining “citizens” as subjects of the Queen. That would mean Chinese people from Hong Kong would be treated differently from those from other parts of China, and those people from Hong Kong would also be able to claim citizenship of the Commonwealth.93 Cockburn emphasised: We desire always to deal with Asiatics on broad lines, whether they are subjects of the Queen or not; and in South Australia, and, I believe, other colonies, those lines of distinction are obliterated.94

The colonies had separate laws about aliens, yet their treatment, or more precisely their exclusion, had been a common cause and a motivating force behind Federation. As a prelude to the Constitutional Convention Debates of 1881, discussions about controlling Chinese immigration were included in the Australasian Inter-Colonial Conference of December 1880 to January 1881. A report to the British Government at Westminster at the conclusion of the conference stated: In all the six Colonies a strong feeling prevails in opposition to the unrestricted introduction of Chinese, this opposition arising principally from a desire to preserve and perpetuate the British type in the various populations.95 90 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1761. 91 See Cass and Rubenstein, “Representation/s of Women in the Australian Constitutional System” (1995) Adelaide Law Review 48. 92 See discussion above at [2.40]. 93 Record of the Debates of the Convention (Melbourne 1898) Vol V pp 1788–1797. 94 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1797. 95 (Emphasis added.) These words allude to the intrinsic nature of citizenship as related to blood, as discussed above at [2.70]: Memorial to Secretary of State for Colonies, Westminster, from the Colonial Secretary’s Office, Sydney (25 January 1881), quoted in Yarwood, Attitudes to Non-European Immigration (1968) p 19 and reprinted in Price, The Great White Walls are Built. Restrictive Immigration to North America and Australia 1836–1888 (1974) p 168.

[2.140]

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Quick was “anxious to equip the Commonwealth with every power necessary for dealing with the invasion of outside coloured races”96 as did Kingston in commending the White Australia Policy. Kingston, however, saw a distinction in approach, once they were in Australia: [I]f you admit them and do not want them to be a standing source of embarrassment in connexion with your general government, treat them fairly, and let them have all the rights and privileges of Australian citizenship.97

Earlier, he stated that by imposing special rules intended for their special injury would emphasise “what some may consider the degradation of their position”.98 Other delegates did not want to taint the subject of citizenship with the race issues that were, in their view, essential to the development of Australia. Higgins wanted to preserve “a discrimination based on colour” and thought it best to give “the Federal Parliament power to dictate its own terms as to citizenship” but this was “a distinct subject, and we should not mix up the subject of discrimination with citizenship of the Commonwealth”.99 The power to discriminate was supported by many, despite some delegates protesting against it. Symon adamantly stated: It is monstrous to put a brand on these people when you admit them. It is degrading to us and our citizenship to do such a thing.100

Another South Australian delegate, former policeman James Howe,101 responded indignantly, “our first duty is to consider the welfare of our own kindred”,102 and later reminded delegates: [T]he cry throughout Australia will be that our first duty is to ourselves, and that we should … make Australia a home for Australians and the British race alone.103

In supporting the exclusion of Chinese immigrants, the Convention delegates were also outlining whom they wanted as members of Australia. The “British type” was most valuable, and anything that would prevent British people from being Australian citizens was anathema to them. However, Symon pointed out, a British type was different from British: 96 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 246. This highlights the paradox of Quick’s position regarding citizenship. He was the proposer of a common citizenship, yet it was the concern about exclusion, with which he agreed, which led to the downfall of his proposal. 97 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 247. 98 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 247d. 99 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1801. 100 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 250. 101 See the description of Howe in Deakin, “The Federal Story” in Macintyre (ed), “And be one People”: Alfred Deakin’s Federal Story (1995) p 61. 102 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 250. 103 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 251.

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It would be simply monstrous that those who were born in England should in any way be subjected to the slightest disabilities. It is impossible to contemplate the exclusion of natural born subjects of this character; but on the other hand, we must not forget that there are other native-born British subjects whom we are far from desiring to see come here in any considerable numbers. For instance, I may refer to Hong Kong Chinamen.104

The decision not to define “citizenship” because of the problems arising from British aliens sat together with the decision to create a Commonwealth power to legislate for those aliens already in the country. This was definitely an “Australian” issue, of concern to the whole Commonwealth, not just the individual colonies. In fact, one of the pieces of legislation introduced into the first Commonwealth Parliament was the Immigration Restriction Bill 1901. The debate about the Bill mirrored debates over the question of citizenship and Asian immigrants in the Convention Debates. Alfred Deakin said the Bill touched “the profoundest instinct of individual or nation – the instinct of self-preservation for it is nothing less than manhood,105 the national character, and the national future that are at stake”.106 Moreover, he referred to the Constitution as “contain[ing] within itself the amplest powers to deal with this difficulty [immigration] in all its aspects”.107 This fear and antagonism towards Chinese aliens forged a particularly “Australian” sense of nationhood and was another significant reason for citizenship being a mere legal inference. In fact, the desire for exclusion, when added to other difficulties delegates had in defining and describing the term, was the conclusive blow to the term “citizen” being anything other than a mere legal inference. Each of the themes developed in the Convention Debates – the difficulty of definition, the federal nature of the system, the concern about rights, and the desire to exclude – illuminates contemporary discussions about citizenship in the legal system. They illustrate that the current debates are a continuation of unresolved matters, essential to the cohesion of any community.

104 Record of the Debates of the Convention (Melbourne 1898) Vol V p 1760. 105 (Emphasis added.) This statement is consistent with feminist critiques of citizenship as a male-dominated, gendered concept. 106 Commonwealth Parliament Debate 1901 (1st Parliament, 12 September 1901) p 4804. 107 Commonwealth Parliament Debate 1901 (1st Parliament, 12 September 1901) p 4805. Deakin also championed the power to deal with people of any and every race (except the Aboriginal inhabitants) and his comments about the Aboriginal people also reflect notions of white superiority.

[2.160]

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CITIZENSHIP AND THE CURRENT FRAMEWORK [2.150] With Australian citizenship being a legal inference, there was no such status at the time of Federation. Australians were subjects of the Queen according to the Constitution.108 In fact, it was not until 1948 that the term “Australian citizen” became a legally recognised concept and it was not until 1987 that the status of British subject was removed.109 While the Nationality and Citizenship Act 1948 (Cth), which later became the Australian Citizenship Act 1948 (Cth)110 and was superseded by the Australian Citizenship Act 2007 (Cth), set out who was entitled to Australian citizenship, and dealt with the legal definition of who was a citizen, it did not deal directly with the consequences of citizenship, nor the substantive nature of citizenship. Indeed, those areas are still unclear. The reasons for not defining the term in the 1890s still resonate within the current legal framework of Australian citizenship. This section mirrors the structure of the preceding part of the chapter,111 presenting each of the themes discussed at Federation in light of Australian citizenship today. The fact that they are still unresolved issues is partly due to the lack of any constitutional statement about citizenship.112 The current debates are not fully canvassed in this chapter,113 but are presented in order to highlight similarities with the Convention Debates, and to assess how they should be further debated in any future constitutional review and review of citizenship.114

Difficulties of definition [2.160] There is still no constitutional definition or protection of the status of citizenship. What if a government decided to change the meaning of “citizenship”? Parliament obviously has the power to alter the Australian Citizenship Act 2007 (Cth).115 Moreover, if it decided to use 108 Section 3 of the Naturalization Act 1903 (Cth), defined “British subject” as a natural-born British subject or a naturalised person. A naturalised person was someone naturalised under the Act. Section 8 provided that the status of naturalised persons was equal to that of British subjects. See further, Chapter 3 at [3.20]. 109 Australian Citizenship Amendment Act 1984 (Cth), which came into force in 1987. See further, Chapter 4 at [4.130]. 110 Australian Citizenship Act 1973 (Cth). 111 See [2.10]–[2.50]. 112 For a contrasting view in the US context of the value of referring to citizenship in constitutions, see Bickel, “Citizenship in the American Constitution” (1973) 15 Arizona Law Review 369 at 387: “It is gratifying, therefore, that we live under a Constitution to which the concept of citizenship matters very little indeed.” 113 They are developed in other parts of this book. 114 This is relevant in particular for Chapter 7 and the “Future of Australian Citizenship”. 115 See more detailed discussion of the Commonwealth power over citizenship in Chapter 4 at [4.10].

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discriminatory criteria in bestowing the legal status of citizenship (or indeed removing that status),116 would it be unconstitutional?117 A significant area of ambiguity in the definition of Australian “citizenship” today is in distinguishing the difference between legal citizenship and membership of the Australian community. Just as the delegates to the 1890s Conventions were confused by the distinction between “citizens” and “residents”, so too does public discussion about citizenship confuse these terms. How are permanent residents treated in contrast to legal citizens? Are these differences significant and should they be?118

Double citizenship – the case of jury service [2.170] In the debate about double (that is, federal/State) citizenship, one of the delegates to the 1898 Convention, Gordon, raised the concern about inconsistencies in the consequences of citizenship relating to jury service in the States.119 This concern is still current. The Constitution provides, in s 80: The Trial on indictment of any offence against any law of the Commonwealth shall be by jury.120

The federal system relies on State laws to determine the make-up of juries,121 although s 4 of the Jury Exemption Act 1965 (Cth) sets out who is not liable and shall not be summoned to serve as a juror in a Federal 116 As it has done in the 2015 amendments enabling dual citizens, not single citizens, to have their citizenship removed: see further, Chapter 4 at [4.1160]. 117 The High Court made it clear in Al-Kateb v Godwin (2004) 219 CLR 562 that as long as a law is for a purpose related to aliens (or immigration), it does not matter whether it is “unjust or contrary to basic human rights” or in contravention of international obligations. Note, however, the decision in Re Patterson: Ex parte Taylor (2001) 207 CLR 391, where a British subject non-alien had this status constitutionally protected. This may be contrasted with the case of Papuan Australian citizens, who were legally “Australians” until Papuan Independence but could be treated as “aliens”, including taking their Australian citizenship away: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439. See further discussion of the limits of the Commonwealth’s law-making power at [4.20]–[4.70] and [6.50]. 118 This is developed further in this chapter, and in greater detail in Chapter 5 which examines all the forms of distinction between citizenship and residency. 119 Record of the Debates of the Convention (Melbourne 1898) Vol IV p 681. 120 Cheng v The Queen (2000) 203 CLR 248 confirmed that Parliament may determine the elements of any particular offence: see Simpson and Wood, “A Puny Thing Indeed – Cheng v The Queen and The Constitutional Right to Trial by Jury” (2001) 29 Federal Law Review 95. 121 Section 68 of the Judiciary Act 1903 (Cth) provides for State laws to apply in the procedure for trials and conviction on indictment to persons charged with Commonwealth offences. Section 77D requires that for High Court matters the laws that apply for the purpose of the trial of civil proceedings in the Supreme Court of that State or Territory also apply in civil matters in which a trial is had with a jury in the High Court in that State or Territory. The same requirement applies in the federal context by operation of s 41 of the Federal Court of Australia Act 1976 (Cth).

[2.170]

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Court, a court of a State or a court of a Territory.122 Each State does, however, require people who are on the electoral roll to be available for jury service, and citizenship is necessary for being on the electoral roll. Thus, the legal consequences flowing from citizenship, which logically should be consistent, are not. Each State has its own laws determining who should serve on a jury. While the States determine liability for jury service primarily by electoral rolls,123 each has disqualification provisions,124 and all provide for exemption from jury service.125 These disqualifications and exemptions mean many citizens are not responsible for jury service. There are many differences in the Acts. One example of an inconsistency is within the category of persons “entitled as of right to be excused from serving as a juror”. In Victoria, a person is entitled to claim an exemption if they reside more than 50 km away from the place at which they are required to serve if that place is in Melbourne, or over 60 km if the place is outside Melbourne,126 whereas in New South Wales, there is no exemption available based on the distance they would be required to travel.127 Therefore, the Commonwealth (to whom citizens are bound), delegates to the States, in the case of jury service, the legal consequence of citizenship. The substantive effect of being a citizen therefore differs from State to State. There are other examples of inconsistencies because State legislation regulates service in State public services, which is another context where citizenship is often a prerequisite to membership of the public service.128 Equality between citizens amongst the States is significantly altered by a federal system.129 This is still a question that raises fundamental questions about the value and meaning of citizenship in a federal system.130 122 This includes, amongst others, the Governor-General, members of the Federal Executive Council and members of both Houses of Parliament. 123 Juries Act 1967 (ACT) s 9; Jury Act 1977 (NSW) s 5; Juries Act 1980 (NT) s 9; Jury Act 1995 (Qld) s 4; Juries Act 1927 (SA) s 11; Juries Act 2003 (Tas) s 6; Juries Act 2000 (Vic) s 5; Juries Act 1957 (WA) s 4. 124 Juries Act 1967 (ACT) s 10; Jury Act 1977 (NSW) s 6; Juries Act 1980 (NT) s 10; Jury Act 1995 (Qld) s 4; Juries Act 1927 (SA) s 12; Juries Act 2003 (Tas) Sch 1 s 6; Juries Act 2000 (Vic) s 5; Juries Act 1957 (WA) s 5. 125 Juries Act 1967 (ACT) s 11; Jury Act 1977 (NSW) Sch 3 s 7; Juries Act 1980 (NT) Sch 7 s 11; Jury Act 1995 (Qld) s 4; Juries Act 1927 (SA) Sch 3 s 13 (ineligibility); Juries Act 2003 (Tas) Sch 2 s 6; Juries Act 2000 (Vic) Sch 2 s 5(3); Juries Act 1957 (WA) Sch 2, s 5(c). 126 Juries Act 2000 (Vic) s 8(3). 127 The exemption, which was previously 56 km, was repealed in 2010 by Jury Amendment Act 2010 (NSW) Sch 1 para 23. Jurors are entitled to compensation for travel costs. 128 See further discussion in Chapter 5 at [5.180]. 129 The potential for different experiences of citizenship in a federal system was raised by Windeyer J in Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 at 582–583 where he stated: “I certainly think it unfortunate that an Australian citizen should be legitimate by the law of one State and illegitimate according to the law of another.” 130 See Schuck, “Citizenship in Federal Systems” in Rubenstein (ed), Individual, Community, Nation: 50 years of Australian Citizenship (2000) p 150, and a more detailed version of the

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Move from “British” to multiculturalism [2.180] Beyond the federal context, the delegates also discussed their British subject status. This, of course, has altered over the century, as Australians are no longer British subjects.131 Moreover, the Australian identity has altered since the introduction of more inclusive immigration programs and with the advent of multiculturalism. This changed Australian identity is one of the reasons for those supporting a proposal for Australia to become a republic. At the heart of any debate about a republic is an understanding of the relationship between the individuals and the state. Therefore, the broader questions about citizenship are a necessary part of the republic debate.132 Problem of dual citizenship [2.190] In addition, the Constitution disqualifies people who are “citizens of a foreign power”133 from becoming members of Federal Parliament. This means an Australian citizen with dual nationality cannot stand for Federal Parliament.134 As noted when discussing the Convention Debates135 it appeared beyond doubt that a person could not devote allegiance to more than one country. If delegates had heeded South Australian delegate, Patrick Glynn, who was keen to leave the whole area of disqualification to Parliament, a constitutional amendment to change this disqualification would not be necessary. Considerable debate continues around the philosophical question of allegiance and dual citizenship136 in the context of the constitutional exclusion of dual citizens from federal Parliament. These issues relate back to the fundamental nature of citizenship and the centrality of “allegiance” to citizenship.137 same piece in (2000) 48 American Journal of Comparative Law 195. See also Jackson, “Citizenship and Federalism” in Aleinikoff and Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (2001) p 127. 131 This terminology was changed with the introduction of the Australian Citizenship Amendment Act 1984 (Cth). Moreover, the High Court has confirmed that British subjects are now recognised as citizens of a foreign power for the purpose of s 44(i) of the Constitution. See Sue v Hill (1999) 199 CLR 462. 132 This has been discussed in Rubenstein, “Citizenship and the Republic Debate” in Patmore (ed), The Big Makeover: A New Australian Constitution, Labor Essays 2002 (2001). 133 Section 44(i). 134 Sykes v Cleary [No 2] (1992) 176 CLR 77; Sue v Hill (1999) 199 CLR 462. 135 See above at [2.100]. 136 See discussion in Chapter 4 regarding dual citizenship. See further, Rubenstein, ““From this Time Forward … I Pledge My Loyalty to Australia”: Loyalty, Citizenship and Constitutional Law in Australia” in Mason and Nile (eds), Symposia Series (2005). 137 For a fuller discussion about the centrality of allegiance to Australian Citizenship, see further, Chapter 4 at [4.1290]; see also: Dutton, “The “Call of the Blood” Allegiance, Nationality and Australian Citizenship 1901–1940” (Paper, “Australian Identities: History, Culture and Environment” conference (Dublin 1996) (in possession of author); Dutton, “Strangers and Citizens: The Boundaries of Australian Citizenship” (PhD thesis, University of Melbourne, 1998); Dutton, One of Us? A Century of Australian Citizenship (2002).

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This question of “allegiance” reared its head around the amendments to the Act at the end of 2015 which now enable dual citizens, not single Australian citizens, to have their citizenship stripped in certain circumstances.138 In other respects, dual citizens are treated equally with sole citizens.139 Given that the present make-up of Australia is essentially different from what it was in the 1890s, and Australia is part of a world where globalisation and internationalisation140 bear upon the meaning of loyalty to one country only, this is another area in need of review in light of 21st century realities.141

Citizenship and membership – rights and responsibilities [2.200] In the Convention Debates, the delegates’ discussions about citizenship and membership of the community in drafting s 117, which prohibits discrimination on the basis of residence in a State of Australia, led them to consider the rights of citizenship. It was difficult because the rights and responsibilities had not been articulated before, even though political rights were identified. This difficulty in determining the rights and responsibilities of citizenship remains a pressing issue today. Legislative distinctions [2.210] One way of determining the differences between citizens and non-citizens is by examining the legislative distinctions based on that status.142 The major pieces of Commonwealth legislation distinguishing citizens from non-citizens are the Commonwealth Electoral Act 1918 (Cth) and the Migration Act 1958 (Cth). In addition, each State’s legislation on 138 See further, Chapter 4 at [4.1350]. For a discussion of the vulnerabilities of dual citizenship in the international context, see Rubenstein and Lenagh-Maguire, “More or Less Secure? Nationality Questions, Deportation and Dual Nationality” in Edwards and van Waas (eds), Nationality and Statelessness under International Law (2014). The recent changes to the Act enabling dual citizens to be stripped of their Australian citizenship affirm this vulnerability. For an international discussion about the stripping of citizenship for dual citizens, see Macklin, “The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?”: http://www.eudo-citizenship.eu/ commentaries/citizenship-forum/1268-the-return-of-banishment-do-the-newdenationalisation-policies-weaken-citizenship. 139 Currently, individuals who were born and have citizenship in another country are entitled, according to Australian law, to maintain their former citizenship on taking up Australian citizenship. Their own country’s law may, however, preclude them from maintaining that citizenship. 140 There is extensive literature in political journals about the changed international environment for states. This includes the influence of the international economy, international law, and technological advances which have transcended the borders of nation-states. See further discussion in Chapter 7 at [7.10]. 141 See further, Rubenstein, “Loyalty and Membership: Globalization and its Impact on Citizenship, Multiculturalism, and the Australian Community” in Levey (ed), Political Theory and Australian Multiculturalism (2008). 142 This is the concern of Chapter 5 of this book. See also Pillai, “The Rights and Responsibilities of Australian Citizenship: A Legislative Analysis” (2014) 37(3) Melbourne University Law Review 736.

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electoral rolls affirms the requirement of citizenship, and each State’s legislation prescribing jury service relies on the electoral rolls, therefore linking it to citizenship.143 The Public Services Act 1999 (Cth) distinguishes citizens and non-citizens when it comes to employment, and only Australian citizens can obtain an Australian passport under the Passports Act 1938 (Cth). Each of these categories represents legal/political rights of citizenship. Interestingly, there is no distinction between citizen and non-citizen in the Defence Act 1903 (Cth). In fact, the area of defence is significant in highlighting one of the present ambiguities between the terms “citizen” and “resident”. As explained in Chapters 1 and 5, the inconsistencies of membership are highlighted in this example. Perhaps an underlying reason for not allowing permanent or temporary residents the right to vote or serve on a jury, is that they may be loyal to another country, and that loyalty precludes them from being a full member of the country in which they are residing. If this were so, one would think it would translate into the defence of the nation. If you cannot rely on people who owe allegiance to another country to vote or to form a jury, then logically they should not be entitled to serve in the defence of the nation. But the distinction of citizen is not legally present for the purpose of serving in the military defence of the country.144 Social membership [2.220] Other forms of membership exist beyond the traditional legal/political rights articulated above. These relate to social membership of the community. This concept was not entertained directly by delegates to the 1890s Conventions, although it is central to the principle of equality of treatment of residents of each of the Australian States that is enshrined in s 117 of the Constitution.145 The only rights of citizenship the delegates could articulate were political rights. Since that time, social and economic rights have also been recognised by some as fundamental elements of citizenship.146 Factors that may be considered as representing social membership of a community are working rights, social security rights and the duty to pay tax.147 Social membership is a necessary ingredient in exercising the political rights of voting and jury service. The exercise of these rights influences one’s identity as a citizen. This also works in the opposite way when 143 Juries Act 1967 (ACT) s 9; Jury Act 1977 (NSW) s 5; Juries Act 1980 (NT) s 9; Jury Act 1929 (Qld) s 6; Juries Act 1927 (SA) s 11; Juries Act 2003 (Tas) s 6; Juries Act 1967 (Vic) s 4; Juries Act 1957 (WA) s 4. 144 See further, discussion in Chapter 5 at [5.140]. 145 See Leeth v Commonwealth (1992) 174 CLR 455 at 480 per Deane and Toohey JJ, at 494 per Gaudron J. 146 For example, Marshall, Citizenship and Social Class (1950); see also Young, Constituting Social and Economic Rights (2012). 147 Note also, other aspects of life in the community represent membership, such as school communities, maternal health centres, service clubs and private associations.

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people who are formally citizens are not treated as full members of the community. In considering the position of Australia’s Indigenous population, formal political membership148 did not, and still does not, equate with full and equal membership of the community. Issues of land rights and access to social rights, such as health, education and employment, are still festering, demonstrating a political right to vote does not always mean one becomes a full member of the community. This also applies to other groups within the community who are socially and economically disadvantaged. Non-Aboriginal women have voted in Australia since 1902. However, this has not translated to equal representation in Parliament, a deficiency in the practice of representative democracy.149 Therefore, the political consequence of citizenship does not necessarily lead to full and equal membership in the community. The difference, then, between citizenship as a legal status and citizenship as a normative notion is embedded with tensions and ambiguities.150 In the late 1990s, the Australian Parliament’s Senate Legal and Constitutional References Committee inquiry into the possibility of a system of National Citizenship Indicators, to enable measurement of the condition of legal, social and cultural rights of citizenship, dealt with some of these issues.151 While these questions were not pursued in the 1990s, or addressed as pressing issues in the 1890s, they were, and continue to be, real issues for the disadvantaged communities and individuals.152 The omission of a definition of “citizenship” in the Constitution meant that social issues were not constitutional issues, nor basic, foundation issues for a sense of identity. Therefore, there are no basic constitutional values providing a foundation for legislative

148 In 1902, the Commonwealth Electoral Act 1918 (Cth) denied Aboriginal people the right to vote. Extraordinarily, and anomalously, the Aborigines who had been voting in their own States were stripped of that right. Aborigines waited 60 years for the passage of amending legislation, and in the federal election of 1963 they were entitled to vote. For further discussion on the voting rights of Aborigines, see Stretton and Finnimore, “Black Fellow Citizens: Aborigines and the Commonwealth Franchise” (1993) 25 “Australian Historical Studies” 521. See also Chesterman and Galligan, “Defining Australian Citizenship: Selected Documents” (1999); Peterson and Sanders (eds), “Citizenship and Indigenous Australians: Changing Conceptions and Possibilities” (1998). 149 See Cass and Rubenstein, “Representation/s of Women in the Australian Constitutional System” (1995) Adelaide Law Review 48. 150 See further, Rubenstein, “Can the Right to Vote be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002” in Chesterman and Philips (eds), Selective Deomocracy: Race, Gender and the Australian Vote (2003). 151 See Australia, Parliament, Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (1996). 152 The women who were politically active in the 1890s were concerned with these broader approaches to citizenship: see some of the newspaper articles of Louisa Lawson in “The Dawn 1888–1895” in Lawson (ed), The First Voice of Australian Feminism: Excerpts from Louisa Lawson’s The Dawn 1888–1895 (1990).

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programs. Parliament can override the Racial Discrimination Act 1975 (Cth) without any constitutional consequences.153 While as a mere inference, citizenship underlies the Constitution in a political sense, there is no similar inference for social and economic rights of citizenship. This then becomes part of a broader debate about the Constitution failing to deal adequately with the relationship between the individual and the state by not including a bill of rights.154 This debate links to citizenship when trying to determine consequent rights. Arguably, a stronger understanding of citizenship would develop if a charter of citizenship were introduced. This could be done, either in the Australian Citizenship Act 2007 (Cth), or as part of the Constitution.155 At the very least, there is a need to rethink and discuss these issues in any constitutional review, in order to reassess Australia’s needs as a society in the 21st century.156

Exclusion [2.230] A desire to exclude was a formidable reason for not referring to citizenship in the Constitution. This theme has been a constant one in Australian history and it has become another central issue at the turn of the century, predominantly in relation to immigration policy. In defining who can become a citizen, an inevitable and inherent decision on membership of the Australian community is made. By not allowing a person into the country in the first place, the constitutional framers’

153 An example of this was the enactment of the Northern Territory National Emergency Response Act 2007 (Cth), which explicitly discriminated against the Aboriginal people of the Northern Territory. An earlier example was the removal of Aboriginal children from their parents, and the detention of Aboriginal people from reserves on “welfare” grounds: see Castan, “Constitutional Deficiencies in the Protection of Indigenous Rights: Reforming the “Races Power”” (2011) 7(25) Indigenous Law Bulletin 12. 154 The introduction of legislative human rights protections in the Australian Capital Territory and Victoria, with the enactment of the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) respectively, enlarged discussion about the introduction of a statutory or constitutional bill of rights in Australia. The issue was considered by the House of Representatives Standing Committee on Legal and Constitutional Affairs: see Commonwealth, Reforming our Constitution: A Roundtable Discussion: House of Representatives Standing Committee on Legal and Constitutional Affairs (Canberra, 10 June 2008). 155 Several submissions to this effect were made to the inquiry of the Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) (Australians All) pp 89–95. Similarly, the Australian Law Reform Commission raised this issue before the National Citizenship Indicators inquiry: National Well-Being: A System of National Citizenship Indicators and Benchmarks (1996) (Submission No 43) p 4. See further, discussion in Chapter 4 at [4.80] regarding the insertion of citizenship into the Constitution. 156 Rubenstein, “Unequal Membership: The Constitution’s Score on Citizenship” in Jayasuriya, Walker and Gothard (eds), Legacies of White Australia: Race, Culture and Nation (2003).

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regulation of membership through immigration is continued.157 The regulation of mobility rights of non-citizens has been a continuing legal consequence of citizenship in Australia. The Migration Act 1958 (Cth) governs the “entry into and presence in Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons”.158 This Act is specifically directed to regulating non-citizens, as opposed to conferring rights or duties upon citizens. When the Act was reformed in 1994, an objects clause was included. Section 4(1) states that “the Act is to regulate, in the national interest, the coming into and presence in, Australia of non-citizens”.159 All non-citizens have to obtain a visa in order to travel to Australia.160 The entitlement to a visa is set out in the Act and Regulations. Therefore, whenever non-citizens, even permanent residents, leave the country, they do not have an absolute right of re-entry. Permanent residents need a Return (Residence) (Class BB) visa. Even with a Return (Residence) visa, there are grounds upon which the Minister can deny the re-entry of those persons.161 Australia’s record on discriminatory practices associated with exclusion has changed since the “White Australia” rhetoric of the framers of the Constitution and the first 50–70 years of nationhood. If the final blow to including citizenship in the foundation document was a racist one, should it remain unspoken? If citizenship is left as a mere legal inference, are discriminatory tendencies likely to perpetuate in Australian society? This has been a more pressing consideration with members of Parliament proposing a return to a White Australia Policy.162 Moreover, there have been changes to welfare and migration entitlements for those who are not

157 See, in particular: Dauvergne, “Amorality and Humanitarianism in Immigration Law” (1999) 37 Osgoode Hall Law Journal 597; “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23; and “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280 where she argues that migration law is more important than citizenship law for the question of deciding who can become an Australian citizen. 158 See the opening words of the Act. 159 The authority to regulate non-citizens comes from the Commonwealth’s power to legislate with respect to aliens and naturalisation in the Constitution, s 51(xix). See further discussion in Chapters 4, 5 and 6. 160 Section 42 of the Migration Act 1958 (Cth). 161 Migration Act 1958 (Cth) Div 3 (Visas for Non-citizens)subdiv D (Visas may be cancelled on certain grounds). Note, however, that there are certain procedures which must be followed, as set out in Migration Act 1958 (Cth) subdiv E (Procedure for cancelling visas under Subdivision D in or outside of Australia). 162 Pauline Hanson, Maiden Speech: Australia, House of Representatives, Parliamentary Debates, (10 September 1996) p 3860. Note Pauline Hanson’s first term in Parliament ended with her defeat at general elections in 1998. She was elected as a Queenland Senator in the 2016 general elections.

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citizens.163 If citizenship were raised for discussion now for definition and inclusion in the Constitution, would a desire to exclude become prominent once more?

CONCLUSION [2.240] This chapter has drawn out themes on the concept of citizenship from the Convention Debates in order to appreciate them in their own context, and to show the similarities with discussions about citizenship today. The fact that these same issues have still not been addressed or resolved reflects upon the weakness of the constitutional foundations on this issue. The definition of “citizenship”, the double federal/State citizenships that exist, the legal rights and responsibilities of citizenship, and the reality of citizenship as exclusion, are issues still gnawing at Australia’s national psyche. The major difference, however, is that Australia in the 21st century is vastly different from the Australia of the 1890s. And this is important precisely because citizenship is about the individuals who make up Australia and their relationship with the state itself. The Constitution needs to be reviewed in light of the values and principles regarded as essential by the community. In rethinking the entire constitutional system, citizenship is important on two levels. It is important, first, because citizenship is the essence of a representative democracy that is accountable to, and is responsive to, its people; and, second, because citizenship is a legal status which has had a slow, staggered and disconnected evolution that needs urgent review. The Australian Constitution still describes the people as “subjects of the Queen”. This is not solely because the framers identified themselves as British people. It was dictated more by the difficulties flowing from the federal compact – the lack of clarity in identifying the consequent rights and responsibilities of citizenship and, most importantly, the desire to exclude. In still grappling with many of these areas, there is a need to clarify the nature of citizenship in the Constitution. Through the Australian Citizenship Act 1948 (Cth) and its successor, the 2007 Act, legislation has pushed citizenship beyond mere legal inference, but it has stranded it shy of further articulation in its substantive rights and responsibilities. The time is ripe for clarification of citizenship in the founding document of nationhood, which has been left constitutionally adrift for over a century.

163 See the discussion in Chapter 5 at [5.70] regarding social security entitlements.

Chapter 3

Australian “Subjecthood” Before Australian Citizenship: 1901–1948 [3.10] INTRODUCTION ................................................................................................................. 63 [3.20] LEGISLATIVE FRAMEWORK ............................................................................................ 65 [3.30] Federal legislation until 1946 .............................................................................................. 67 [3.100] THE HIGH COURT AND THE FIRST 48 YEARS ........................................................ 81 [3.110] DIFFERENT LEVELS OF MEMBERSHIP IN THE FIRST 48 YEARS ........................ 84 [3.120] NATIONALITY AND CITIZENSHIP – THE BRITISH LEGACY AND IMPETUS FOR AUSTRALIAN CITIZENSHIP ................................................................................. 87

INTRODUCTION [3.10] The legal framework for membership of the Australian community is confused and unclear.1 The aim of this chapter is twofold. First, it seeks to make the law more accessible for the period covered. This has lasting relevance as current questions about citizenship by descent can involve law from this period.2 Second, the disjuncture between legal and normative notions of membership is revealed as operating from the origins of the Commonwealth. In the first part of the 20th century, active discussion about Australian citizenship occurred, even though it was not a formal legal term.3 In 1912, Walter Murdoch, Professor of English Literature at the University of Western Australia, wrote The Australian Citizen: An Elementary Account of Civic Rights and Duties4 primarily for use in schools. It included chapters 1 As argued in the previous two chapters. 2 For instance, see Re Lappas and Department of Immigration and Multicultural Affairs [1999] AATA 380 (3 June 1999): http://www.austlii.edu.au. The applicant was seeking citizenship by descent through s 10C of the Australian Citizenship Act 1948 (Cth) and his grandparent had been naturalised under the Nationality Act 1920 (Cth). See further discussion below at [3.50]. 3 Australian citizenship was first legally defined by the Nationality and Citizenship Act 1948 (Cth), which came into effect on 26 January 1949. The Act later became the Australian Citizenship Act 1948 (Cth) and was superseded by the Australian Citizenship Act 2007 (Cth) in 2007, as discussed in more detail in Chapter 4. Material contained in this section also appears in a different context in Chapter 1 at [1.40]. Minor changes were made to this chapter in the second edition of this book. 4 Published by Whitcome and Tomgs Ltd (1912).

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on government, the work of government, organs of government and citizenship. Murdoch did not discuss “citizenship” as a formal legal term because it was not in existence. He discussed active citizenship; what it meant to be a good person in a democratic society.5 As Helen Irving argues, “citizenship” was a term of popular usage “in speeches, in the press, in the rules and charters of organisations, and in debates about political entitlements”.6 This discussion of citizenship “entailed commitment, belonging, and contribution”7 and reflected the normative, universal notion of citizenship then in use. However, in law the major distinction of membership in Australia for the first 48 years of the Commonwealth was between British subjects and aliens. If born in Australia, or naturalised, one became a British subject. After 1949, confusion about membership in Australia endured, in part due to the continued existence of British subject status – a factor that continued until the 1980s.8 Once Australia federated, naturalisation was the responsibility of the Commonwealth Parliament9 and this chapter reviews the legislation, considering what it represents about membership of Australia during the period. While British subject status was the only formal status in Australia, David Dutton explains that a: de facto administrative Australian citizenship operated during the period which arose from the necessity of distinguishing between those British subjects who were permanent residents and belonged to the Commonwealth (in the sense that they could not be deported), and those British subjects who were merely visitors or who were yet to reside in Australia long enough to be regarded as belonging.10

These further gradations of membership within the status of British subject are explored in this chapter. The chapter begins by setting out the legislative framework for membership of the Australian community for the period up to 26 January 5 The chapters under citizenship include “Liberty”, “Law”, “Equality”, “Our Debt to Society” and “Our Duty to Society”. 6 Irving, “Citizenship before 1949” in Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000) p 10. 7 Irving, “Citizenship before 1949” in Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000) p 12. 8 See further, Chapter 4 at [4.140] and the discussion about British subject status. 9 Despite the explicit statements of the Commonwealth Parliament expressing its exclusive control over naturalisation, in 1944 Western Australia introduced the Natives (Citizenship Rights) Act 1944 (WA). While stating it was expressly subject to the Commonwealth Constitution, this Act placed restrictions on adult Aboriginals applying for certificates of citizenship. The legislation was not repealed until 1971 even though it was inconsistent with the Commonwealth legislation and, therefore, unconstitutional by virtue of s 128 of the Constitution. See further, Chesterman and Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997) pp 129–133 and “Aboriginal and Torres Strait Islanders” in Laws of Australia (1993) Ch 6, 1.1, “Constitutional Status” at [21]. 10 Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 13.

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1949 when the Nationality and Citizenship Act 1948 (Cth), later the Australian Citizenship Act 1948 (Cth) and then replaced by the Australian Citizenship Act 2007 (Cth), came into force. It looks at the High Court’s approach to membership of the community in the first 48 years of the century and, finally, addresses the different levels of membership existing in practice during the period. The word “nationality” is used rather than “citizenship” given there was no formal Australian citizenship. However, these words continue to be used interchangeably in discussions about citizenship, both domestically and internationally.11

LEGISLATIVE FRAMEWORK [3.20] The legal framework is made up of common law12 principles of nationality (as expressed by the courts) and legislation about naturalisation. At common law, a person’s formal legal status was determined by allegiance to the monarch, whether by birth or through naturalisation.13 People born within the monarch’s dominions were, by virtue of their birth, British subjects.14 Australian nationality legislation largely followed the common law rule that the place of birth (jus soli),

11 Often “nationality” is the word used when discussing issues of citizenship at an international level and “citizenship” is used when discussing membership domestically. See further, Rubenstein and Adler, “International Citizenship: The Future of Nationality in a Globalized World” (2000) 7 Indiana Journal of Global Legal Studies 511. See also Rubenstein, “Globalization and Citizenship and Nationality” in Dauvergne (ed), Jurisprudence for an Interconnected Globe (2003). Interestingly, where international law and most Western European states use the term “nationality”, most Eastern European states use the term “citizenship”: Council of Europe, European Convention on Nationality and Explanatory Report (1997), as cited in Committee on Feminism and International Law, Final Report on Women’s Equality and Nationality in International Law, Report of the Sixty-Ninth Conference of The International Law Association (2000) p 259. 12 For a more comprehensive analysis of the common law of nationality, see Parry, Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland (1957) and Pryles, Australian Citizenship Law (1981) Ch 2. See also Hansen, “From Subjects to Citizens: Immigration and Nationality Law in the UK” in Hansen and Weill, Towards a European Nationality: Citizenship, Immigration and Nationality Law in the EU (2001). 13 See also Pryles, Australian Citizenship Law (1981) pp14–16. In particular, Australia was also influenced by the common code of the British Nationality and Status of Aliens Act 1914 (UK) 4 & 5 Geo 5, c 17, which was intended to form the basis of a common, uniform law of nationality throughout the Empire. 14 Pryles, Australian Citizenship Law (1981) p 14.

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rather than the nationality of the parents (jus sanguinis),15 generally determined allegiance and, thus, British subject status.16 Several High Court cases concentrate upon the meaning of “British subject” and the evolution of its meaning in Australia. In Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178 (Nolan) as well as Sue v Hill (1999) 199 CLR 462, Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (Patterson) and Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (Shaw), the court needed to identify whether the applicants’ status as British subjects assisted them in their respective matters.17 In Sue v Hill, Gaudron J noted (at 527, n 228): At common law, and pursuant to s (1)(a) of the British Nationality and Status of Aliens Act 1914 (UK), any person born within the dominions (including Australia) of the Crown of the United Kingdom had the status of a “natural-born British subject”. Section 1 of the British Nationality Act 1948 (UK) created two categories of British subject: those who were “citizen[s] of the United Kingdom and Colonies” and those who were citizens of any country mentioned in s 1(3), including, relevantly, Australia. The status of British subject was, for the purposes of British law, withdrawn from Australian citizens by the British Nationality Act 1981 (UK), s 11(1) of [sic] which provided that only persons who were “citizen[s] of the United Kingdom and Colonies” with a right of abode in the United Kingdom would be granted the status of “British citizen”.

However, there has been disagreement in the High Court regarding the date on which British subject status ceased to be relevant for the purposes of membership of the Australian community. In Shaw, the High Court held 4:3 that all persons who entered Australia after the commencement 15 There were exceptions to this common law rule, as highlighted by Pryles, Australian Citizenship Law (1981) p 14: children of foreign ambassadors born within the monarch’s dominion were not British subjects, and children of British ambassadors born abroad were British subjects. These exceptions are not mentioned by the Department of Immigration and Border Protection, Australian Citizenship Instructions (1 January 2015): LEGENDcom, http://www.border.gov.au/Trav/Visa/LEGE. Note that from 1 June 2016, the Australian Citizenship Instructions detail the citizenship operational instructions, rather than the Department’s policy, which is contained in a new Citizenship policy that largely mirrors the former ACIs. 16 “For the purposes of the early common law of England alien status was identified as absence of allegiance to the Crown … Allegiance to the Crown became synonymous with being a British subject”: Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 189 per Gaudron J. The concept of allegiance was central to the development of citizenship and nationality and impacts upon other areas of citizenship, such as dual citizenship. See further discussion on dual citizenship in Chapter 4 at [4.1290]. For a fascinating discussion about how well the common law principles were actually applied, see Prince, “Aliens in their Own Land: “Alien” and the Rule of Law in Colonial and Post-Federation Australia” (PhD thesis, ANU, 2015): https:// wwwdigitalcollections.anu.edu.au/bitstream/1885/101778/1/ PRINCE%20Thesis%202015.pdf. 17 In Nolan, Patterson and Shaw, the applicants were seeking to resist deportation orders under the Migration Act 1958 (Cth) and in Sue v Hill, Mrs Hill was seeking to avoid the application of s 44(i) of the Constitution to her election as a Senator. See further, discussion of the meaning of “British subject” in Chapter 4 at [4.40].

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of the Nationality and Citizenship Act 1948 (Cth) on 26 January 1949 (and who were born out of Australia to non-citizen parents and who have not become naturalised citizens) can be considered aliens for the purposes of s 51(xix) of the Constitution.18 For the majority, the enactment of legislation to create the statutory concept of Australian citizenship meant that a non-citizen is an alien for the purposes of s 51(xix). Therefore, British subjects resident in Australia have not held any special constitutional status since 1949.19 Shaw represented a return to the High Court’s view in Nolan, where it had found that a British subject born in the United Kingdom who moved to Australia as a child could be deported from Australia as an alien.20 While British legislation began as an important base for Australia’s sense of membership, this is no longer the case. Australia’s 1948 citizenship law represented a significant step toward Australian independence. As Arthur Calwell, Minister for Information and Immigration, stated in his Second Reading speech on the Nationality and Citizenship Bill 1948 (Cth): The importance of the measure lies in the fact that it marks another step forward in the development of Australian nationhood. This step is a logical one, and is the inevitable consequence of the decisions of successive Imperial conferences.21

This section focuses on membership of the Australian community from Federation in 1901 until the implementation of Australian citizenship legislation in 1949.

Federal legislation until 194622 [3.30] Before Federation, the colonies of Australia were responsible for their own legislation, and laws providing for naturalisation dated back to the 1820s. Clive Parry provides a detailed account of the respective laws of the colonies and identifies the New South Wales statute of 1828, which enabled the Governor to grant letters of denisation23 under the seal of the 18 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. Section 51(xix) sets out the Commonwealth’s power to make laws with respect to “naturalization and aliens”, widely accepted to be the constitutional basis of much of Australia’s immigration and citizenship law. This is discussed in Chapter 4 at [4.10] 19 The meaning of “aliens” and the status of British subjects is discussed in detail in Chapter 4 at [4.40]. See also Prince, “Aliens in their Own Land: “Alien” and the Rule of Law in Colonial and Post-Federation Australia” (PhD thesis, ANU, 2015). 20 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178. See discussion in Chapter 4 at [4.10] and [4.30], see also Rubenstein and Lenagh-Maguire, “Citizenship Law” in Freckelton and Selby, Appealing to the Future: Michael Kirby and His Legacy (2009) Ch 3 where there is a discussion of these issues through the judgments of Michael Kirby. 21 Australia, House of Representatives, Parliamentary Debates (30 September 1948) p 1060 (Arthur Calwell). 22 See also Pryles, Australian Citizenship Law (1981) Ch 2. 23 “Denizen” is defined in The Shorter Oxford English Dictionary as “one who dwells within a country; not a native born citizen – an alien admitted to membership”.

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colony, as the first Act of Naturalisation.24 Michael Pryles’ detailed discussion of the extraterritorial effect of the respective colonial legislation25 concludes that: the fact remains that it was at the very least doubtful whether a person naturalized in one colony would have been accorded the status of a British subject in another colony. Indeed it is fair to say that the weight of opinion was against the extraterritorial recognition of colonial naturalizations.26

The first piece of “Federal legislation” was actually introduced before Federation. The Federal Council of Australasia enacted the Australian Naturalization Act 1897,27 providing for recognition throughout the Australasian colonies of a naturalisation effected in any colony, but the legislation was limited.28 It was not until Federation that any effective federal approach to naturalisation was introduced. 1903 to 1920: Naturalization Act 1903 (Cth) [3.40] The Naturalization Act 1903 (Cth) was enacted by the Commonwealth Parliament under its power in s 51(xix) of the Constitution29 and came into force on 1 January 1904.30 It explicitly stated it would exclusively issue certificates of naturalisation after the commencement of the Act so States no longer had any responsibility in this area.31 Those naturalised through the colonies before the commencement of the Act were deemed naturalised32 and “Australia wide recognition was given to State and colonial naturalizations effected prior to the passing of the Commonwealth Act”.33 There was no definition in the Act of a natural-born British subject, so the common law prevailed.34 24 Michael Pryles explains that naturalisation encompassed two distinct processes. One was “endenization” by letters patent under the Royal prerogative, and naturalisation was by an Act of Parliament: Pryles, Australian Citizenship Law (1981) p 14. 25 Pryles, Australian Citizenship Law (1981) pp 32–33. 26 Pryles, Australian Citizenship Law (1981) p 33. 27 60 Vict No1, cited in Pryles, Australian Citizenship Law (1981) p 34. 28 See Pryles, Australian Citizenship Law (1981) p 34, where Pryles notes the limitations, including that New South Wales never became a member of the Federal Council. 29 This refers to “naturalization and aliens” and is further discussed in Chapter 4 at [4.10] in explaining the constitutional basis for the current Act. 30 Non-attributed document, “Naturalization in Australia” held in Department of Immigration and Multicultural Affairs library (Call No P 323.623 0994 NAT c 1) p 1 and accessed when researching the first edition of this book. 31 Naturalization Act 1903 (Cth) s 13. Note, however, the material above in the fn to [3.10] about Western Australia and its 1944 Act. 32 See Naturalization Act 1903 (Cth) s 4. 33 Pryles, Australian Citizenship Law (1981) p 34. 34 Section 3 of the Naturalization Act 1903 (Cth) defined “British subject” to mean “a natural-born British subject or a naturalized person”. However, there is no further definition of a “natural-born British subject” within the Act.

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A person was deemed to have acquired British subject status by naturalisation if that person held, or was included in, a certificate of naturalisation granted by the government of an Australian State before 1 January 190435 and by the government of the Commonwealth between 1 January 1904 and 31 December 1920.36 A person was recognised as a naturalised British subject if he or she held a certificate issued by the United Kingdom Home Secretary after 1 January 1915, or by the governments of Canada (after 1 January 1915), Newfoundland (after 5 June 1915), South Africa (after 21 May 1926), and New Zealand (after 1 July 1929).37 Children of people granted certificates of naturalisation under various Commonwealth and State Acts in force before 1 January 1921 became naturalised in certain circumstances without having their names included in a parent’s certificate.38 The Nationality Act 1920 (Cth) provided for the Governor-General to include on a certificate of naturalisation the name of any child of the alien born before the date of the certificate.39 The antecedents of current provisions of the Australian Citizenship Act 2007 (Cth) can be seen in the 1920 Act. In their earlier form, the deprivation provisions of today allowed the Governor-General to revoke naturalisation, not only where obtained by false statement, but also where the officer might be satisfied that the revocation was “desirable for any reason”.40 This also applied to the wife of any person whose certificate was revoked, and also to any of his minor children acquiring nationality pursuant to the original Act.41 There were no other provisions, however, for loss of British subject status, such as the former s 17, regarding dual citizenship. In looking at the provisions of this first federal Act for naturalisation, a philosophy about membership of the Australian community was quite 35 Section 4 of the 1903 Act stated: “A person who has before the passing of this Act obtained in a State or in a colony which has become a State a certificate of naturalization or letters of naturalization shall be deemed to be naturalized.” 36 This was formerly included in the Department of Immigration and Border Protection, Australian Citizenship Instructions (1 November 2001) at [1.7.3]. The Citizenship Policy was published in 2016 to replace the policy guidance previously provided in the form of the Australian Citizenship Instructions. From 1 June 2016, the Australian Citizenship Instructions detail the citizenship operational instructions, rather than the Department’s policy http://www.border.gov.au/Trav/Visa/LEGE: s 14 of the Nationality Act 1920 (Cth) as amended. 37 Department of Immigration and Border Protection, Australian Citizenship Instructions (1 November 2001) LEGENDcom at [1.7.3]: s 15 of the Nationality Act 1920 (Cth) as amended provided for this reciprocal arrangement. 38 Department of Immigration and Border Protection, Australian Citizenship Instructions (1 November 2001) LEGENDcom at [1.7.4]: s 10(a) and (b) of the Naturalization Act 1903 (Cth). 39 See s 10(1) of the Nationality Act 1920 (Cth). 40 See s 11 of the Naturalization Act 1903 (Cth). 41 See s 11(2) of the Naturalization Act 1903 (Cth).

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explicit. Several Acts introduced in the first years of the Commonwealth reflected that an exclusionary sentiment had been brewing since the 1850s, infusing the discussions on citizenship during the Constitutional Conventions and the framers’ decision not to define “citizenship” in the Constitution.42 In fact, the Immigration Restriction Bill 1901 (Cth), introduced into the first Commonwealth Parliament, epitomised the period. The debate over the Bill resembles the debates over the question of citizenship in the Convention Debates. Alfred Deakin was at pains to point out that the Bill involved touching: the profoundest instinct of individual or nation – the instinct of selfpreservation – for it is nothing less than the national manhood, the national character, and the national future that are at stake.43

Moreover, he referred to the Constitution as “contain[ing] within itself the amplest powers to deal with this difficulty [immigration] in all its aspects”.44 This fear and antagonism towards aliens, such as Chinese immigrants, contributed to a particularly “Australian” sense of nationhood.45 These fears can also be seen in the first Naturalization Act 1903 (Cth). Indigenous populations of Asia, Africa and the Pacific Islands, excepting New Zealand, were excluded from naturalisation.46 John Chesterman and Brian Galligan point out that Australian Aborigines did not appear in the exclusion “since they were British subjects by birth and had nothing to gain from naturalization”.47 According to common law, Australian Aborigines were British subjects by birth, yet their experience of membership of the Australian community was not enhanced by this. Despite the above statement by Chesterman and Galligan, no explicit step was taken to deprive Australian Aborigines of their British subject status

42 As discussed in Chapter 2. 43 Australia, House of Representatives, Parliamentary Debates (12 September 1901) p 4804 (Alfred Deakin). 44 Australia, House of Representatives, Parliamentary Debates (12 September 1901) p 4804. Deakin also championed the power to deal with people of any and every race (except the Aboriginal inhabitants), and his comments about the Aboriginal people again reflect notions of white superiority (p 4805). 45 This fear and antagonism was also relevant to the application of the term “alien” during this period: see Prince, –“Aliens in their Own Land: “Alien” and the Rule of Law in Colonial and Post-Federation Australia” (PhD thesis, ANU, 2015). 46 Naturalization Act 1903 (Cth) s 5. See further, Pryles, Australian Citizenship Law (1981) p 35, and his reference to the cases of Muramats v Commonwealth Electoral Office (1923) 32 CLR 500, which defined “Aboriginal natives”. 47 Chesterman and Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997) p 85.

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acquired at birth, which the legislature had the capacity to do.48 By leaving Aborigines with the status of British subjects by birth, their experience highlights the disjuncture between membership as a formal status, and membership as a normative notion. Research by Chesterman and Galligan provides extensive examples of the exclusion of Aboriginal Australians from qualitative membership of the Australian community despite their formal status as British subjects.49 This expression of unequal membership is in contrast to the stated intentions of the Naturalization Act 1903 (Cth) which declared that “a person to whom a certificate of naturalisation was granted was entitled in the Commonwealth to all the rights and privileges as well as obligations of a natural-born British subject”.50 This statement implies there was an equality of rights amongst British subjects. However, the Aboriginal experience shows this was clearly not the case. In fact, the Naturalization Act 1903 (Cth) itself also made the proviso to s 8 with State laws discriminating between natural-born British subjects and naturalised British subjects.51 The Australian federal system has always complicated the experience of citizenship.52 1920 to 1949: Nationality Act 1920 (Cth) [3.50] In 1914, a British common code was introduced, intended for implementation throughout the dominions and mirroring the British Nationality and Status of Aliens Act 1914 (UK). Despite Australia’s involvement in its development,53 it was not implemented until 1920 by the repeal of the Naturalization Act 1903 (Cth) and the introduction of the

48 For instance, in the first Commonwealth Franchise Act 1902 (Cth), s 4 precluded Aboriginal natives of Australia, Asia, Africa or the Islands of the Pacific, except New Zealand, from being entitled to have their names on the electoral roll, unless so entitled under s 41 of the Constitution. See further, Chesterman and Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997) p 89. 49 Chesterman and Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997) Chs 4 and 5. This will be further developed below in the discussion on administrative citizenship at [3.110]. 50 Naturalization Act 1903 (Cth) s 8. 51 Section 8: “Provided that where by any provision of the Constitution or of any Act or State Constitution or Act a distinction is made between the rights powers or privileges of natural-born British subjects and those of persons naturalized in the Commonwealth or in a State, the rights powers and privileges conferred by this section shall for the purposes of that provision be only those (if any) to which persons so naturalized are therein expressed to be entitled.” 52 See reference to this in Chapter 1 at [1.30] and Chapter 2 at [2.110]. 53 See Parry, Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland (1957) p 531.

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Nationality Act 1920 (Cth). The latter Act was in force, with amendments,54 until the new Nationality and Citizenship Act 1948 (Cth) came into force.55 The structure of this 1920 Act and many of its provisions provided the basis of much of the 1948 Act. Although the 2007 Act was a significant restructure of the 1948 Act and much of its terminology was changed, a number of elements of the 1920 legislation have endured. For instance, the concepts of nationality by birth,56 by descent57 (at that stage to those persons whose father was a British subject) and, by naturalisation (now, by “conferral”),58 are retained in the current Act.59 The residence requirements for citizenship by naturalisation also began in the 1920 Act. Section 7 provided that the person: • reside in “His Majesty’s dominions for a period of not less than five years in the manner required by this section”,60 • or have been in the service of the Crown for not less than five years within the “last eight years before the application”; • and be of “good character”; and • have an “adequate knowledge of the English language” and intend to “reside in His Majesty’s dominions or to enter or continue in the service of the Crown”. The current discretionary provisions for citizenship by conferral have their roots in this provision.61 These Acts are discussed in this text not just for historical interest; their provisions remain relevant, particularly with respect to applications for Australian citizenship by descent. For example, the 1920 Act was relevant to an application before the Administrative Appeals Tribunal in 1999 54 Between 1920 and 1946 the Nationality Act 1920 (Cth) (No 48 of 1920) was amended by similarly titled Acts: Nationality Act 1922 (Cth) (No 24); Nationality Act 1925 (Cth) (No 10); Nationality Act 1930 (Cth) (No 9); Nationality Act 1936 (Cth) (No 62) and Nationality Act 1946 (Cth) (Nos 9 and 28), as cited in Parry, Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland (1957) p 533. 55 The Act came into force on 26 January 1949. 56 See Nationality Act 1920 (Cth) s 6(1)(a). 57 See Nationality Act 1920 (Cth) s 6(1)(b). In 1925 the Act of 1920 was amended in parallel with the amendments effected in the Imperial Act in 1922 so as to confer upon the foreign-born child of a natural-born subject, himself born abroad, the status of a subject upon the registration of the child’s birth at a consulate. See further, Parry, Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland (1957) p 532. 58 See Nationality Act 1920 (Cth) Pt III s 7. Citizenship by conferral is discussed in Chapter 4 at [4.370] and [4.530]ff. 59 See Chapter 4 at [4.370] and discussion of citizenship by birth, descent and conferral under the 2007 Act. 60 Section 7(2) of the Nationality Act 1920 (Cth) set out that this was made up of not less than one year immediately preceding the application and a further four years in the last eight years before the application. 61 See Chapter 4 and the discussion of citizenship by conferral (and the historical concepts of citizenship by naturalisation and by grant) at [4.530].

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where brothers were seeking registration of citizenship by descent under s 10C of the 1948 Act due to the fact that their grandfather was naturalised as an Australian citizen in 1929.62 Section 10C of the 1948 Act was inserted to allow for the registration of people who, as children of Australian citizens, had failed “for an acceptable reason”63 to become registered as Australian citizens.64 The facts involved three generations of a family – the applicants, their father and their grandfather. The grandfather had become a British subject by naturalisation in 1929. The applicants’ father sought a declaratory certificate of Australian citizenship in 1995 and had been granted one, although it was determined that the certificate had been given in error. Sections 5 and 10 of the Nationality Act 1920 (Cth) were relevant in determining whether the applicants’ father could be recognised as naturalised due to the grandfather’s naturalisation. Section 10 gave the Governor-General power to include in the naturalisation certificate names of children; s 5 prevented minors from being granted a certificate of naturalisation. The Department provided evidence that the policy at that time was to only include children under 21 who were resident in Australia at the time of the father’s naturalisation, and that only the children whose names were included on the certificate were naturalised. The applicants’ father did not fulfil those policy requirements. The actual type of naturalisation certificate issued in 1929 was different according to whether children were included. The applicants’ grandfather was issued a “BB” certificate for “married person’s without children affected by naturalization”. The applicants’ father had never lived in Australia and had never been endorsed on the father’s certificate, and so the tribunal held that the applicants’ father had not been naturalised as a British subject. When the Nationality and Citizenship Act 1948 (Cth) was introduced, the transitional provisions in s 25 conferred upon the applicants’ grandfather Australian citizenship status. The section also provided that a person born outside Australia whose father was covered by that section and who enters, or entered, Australia shall become an Australian citizen on the date upon which he or she enters Australia. But the applicants’ father never entered Australia and so could not benefit from that section. Provisions of the 1920 Act were also relevant in Re Lester and Minister for Immigration and Citizenship (2010) 114 ALD 688. Under s 16(3) of the 2007 Act, a person who was born outside Australia or New Guinea prior to 26 January 1949 to a parent who, on 26 January 1949, became an 62 See Re Lappas and Department of Immigration and Ethnic Affairs [1999] AATA 380: http://www.legislation.gov.au. 63 Defined in s 10C(5). Section 10C(5)(d) referred to the applicant having a reason that was declared by the regulations to be an acceptable reason for the purpose of the section. This was set out in reg 7H of the Australian Citizenship Regulations 1960 (Cth) (No 62), as amended. 64 The citizenship by descent provisions in the Australian Citizenship Act 2007 (Cth) differ slightly from those in the 1948 Act. See further discussion in Chapter 4 at [4.410] and [4.420].

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Australian citizen, is eligible to acquire Australian citizenship, provided certain other requirements are satisfied. The applicant was a Canadian citizen born on 19 June 1920. Her father, born on 13 January 1878 in New South Wales, was a British subject by birth, pursuant to s 6 of the 1920 Act. However, the applicant’s father died in Canada on 23 December 1931. The issue before the Administrative Appeals Tribunal was whether the applicant’s father became an Australian citizen when Australian citizenship was established as a legal concept on 26 January 1949. Although the applicant’s father was a natural-born British subject under the 1920 Act, he died before 26 January 1949.65 The applicant contended that a purposive construction should be adopted in interpreting s 16(3) of the 2007 Act, which would mean that individuals whose parents died prior to 26 January 1949 were not excluded from becoming Australian citizens under that provision.66 However, the tribunal did not agree, upholding the original decision to refuse the applicant’s citizenship application on the ground that her father had not become an Australian citizen on 26 January 1949.67 One other feature of the Nationality Act 1920 (Cth) is that the exclusionary provisions regarding Indigenous people in the Naturalization Act 1903 (Cth) were removed and the original limitation of Commonwealth naturalisation to people of European race was abandoned.68 However, different forms of exclusion began. Section 10 provided that “[e]xcept as provided by this Act, a certificate of naturalisation shall not be granted to any person under disability”.69 “Disability” was defined to mean “that status of being a married woman, a minor, lunatic or idiot”.70 Women and nationality [3.60] The topic of women and nationality is a subject in its own right beyond the scope of this section71 and books have been written on the 65 The transitional provisions in s 25 of the 1948 Act conferred citizenship on a person who was “a British subject immediately prior to the date of commencement of this Act” if “he was born in Australia and would have been an Australian citizen if section ten of this Act [concerning citizenship by birth] had been in force at the time of his birth”. 66 Re Lester and Minister for Immigration and Citizenship (2010) 114 ALD 688 at [15]. 67 Re Lester and Minister for Immigration and Citizenship (2010) 114 ALD 688 at [34]. 68 See Parry, Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland (1957) p 532. 69 See Nationality Act 1920 (Cth) s 10(3). 70 See Nationality Act 1920 (Cth) s 5. 71 David Dutton alerts researchers to the records in the National Archives of Australia dealing with nationality of women that would provide an interesting historical analysis of the area: see Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) pp 81–85. As Dutton also notes, the “gendered character of citizenship is evident not only in these records which deal specifically with aspects of women’s citizenship, but in the masculine construction of citizenship evident in records cited throughout this guide” (p 81). Dutton also refers to gender in his thesis: “Strangers and Citizens: The Boundaries of Australian Citizenship 1901–1973” (PhD thesis, University

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subject in various contexts and jurisdictions.72 As Jane Connors notes, the “quest for equality between women and men in regard to nationality has been an important focus of the international women’s movement for almost a century”.73 Moreover, as Kif Augustine-Adams writes, the “differential regulation of mothers and fathers in the transmission of citizenship to their children profoundly impacts who we are as citizens and as nations, both in the conceptual, imagined form of court opinions and in the practical, corporal form of population”.74 Australian legislation followed its own path compared to the British common code regarding married women. In Australia, the picture regarding women and British subject status involved three different aspects – rules that applied to Australian-born, non-married women, rules for Australian-born, married women and rules for foreign-born women. Foreign-born women [3.70] The status of foreign-born wives of people naturalised in Australia subsequent to the marriage evolved as follows: • If the husband was naturalised before 1 January 1921, the wife may or may not have acquired British subject status.75

of Melbourne, Department of History, 1998) pp 77–81. See also the discussion of gender in Chapter 5 at [5.10] and [5.70] regarding the legal and normative aspects of legislation discriminating upon the basis of citizenship and residence. 72 Irving, Citizenship, Alienage, and the Modern Constitutional State: A Gendered History (2016) and Bredbenner, A Nationality of Her Own: Women, Marriage and the Law of Citizenship (1998), which concentrates primarily on the US; Yuval-Davis, Gender and Nation (1997); Lister, Citizenship: Feminist Perspectives (1997); Damousi and Ellinghaus (eds), Citizenship, Women and Social Justice: International Historical Perspectives (1999). 73 Connors, “The United Nations and Citizenship” in Rubenstein (ed), Individual, Community, Nation: 50 years of Australian Citizenship (2000). See also Committee on Feminism and International Law, Final Report on Women’s Equality and Nationality in International Law, Report of the Sixty-Ninth Conference of the International Law Association (2000) p 248 and Knop, “Relational Nationality: On Gender and Nationality in International Law” in Aleinikoff and Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (2001) pp 89–126. 74 Augustine-Adams, “Gendered States: A Comparative Construction of Citizenship and Nation” (2000) 41 Virginia Journal of International Law 93 at 94. This concentrates more specifically on citizenship and descent. The practical consequences of the differential treatment of men and women regarding descent can be seen in the provisions in the current Act which seek to make amends for earlier inequalities. See further, Chapter 4. For a comparison in the US, see Collins, “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation” (2014) 123 Yale Law Journal 2134. 75 Section 9 of the Naturalization Act 1903 (Cth) stated: “A woman who, not being a British subject, marries a British subject, shall in the Commonwealth be deemed to be thereby naturalized, and have the same rights powers and privileges, and be subject to the same obligations as a person who has obtained a certificate of naturalization.” This seems to be directed to women who marry – not women who are already married.

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• If the husband was naturalised in Australia between 1 January 1921 and 31 March 1937, the wife automatically acquired British subject status without any action on her part.76 • If the husband was naturalised between 1 April 1937 and 25 January 1949, the wife did not acquire British subject status unless she made a Declaration of Acquisition of British subject status.77 For alien women who married British subject men, the marriage bestowed upon that woman British subject status, and dissolution of the marriage or the death of the husband did not affect that woman’s nationality.78 However, if the husband had become a British subject by the grant of a certificate of naturalisation and this was revoked, the Governor-General could order that his wife (and minor children) were no longer British subjects.79 Thus, the woman immediately became an “alien”. Australian-born women [3.80] Women who were British subjects independently, by virtue of birth or naturalisation, could lose their British subject status in any one of the following ways: • by naturalisation in a foreign state, if the person concerned was sane, of full age, and was not a married woman;80 • by declaration of alienage, which could be made only in specified cases which were very few in number;81 • in the case of persons who had obtained British subject status by naturalisation, by revocation on the order of the Minister responsible for nationality matters at the time;82 or • in the case of a British woman, by marriage to an alien in certain circumstances.83 The Acts with special amending provisions for women were Act No 62 of 1936 and Act No 9 of 1946. Section 6 of the 1936 Act paralleled the United 76 Section 18(1) of the Nationality Act 1920 (Cth). 77 Section 18(5) of the Nationality Act 1920 (Cth) as amended. They had within 12 months to do so or within such extended period as the Minister allowed. 78 Sections 18(1) and 19 of the Nationality Act 1920 (Cth). This was only the position until the introduction of the Nationality and Citizenship Act 1948 (Cth). See further discussion in Chapter 4 at [4.180] about the position after the commencement of that Act. 79 Nationality Act 1920 (Cth) s 13. The Governor-General was not able to revoke the British subject status of women who were British subjects by birth. 80 This applied to men and unmarried women alike: s 21 of the Nationality Act 1920 (Cth). 81 This applied to men and unmarried women alike: s 22 of the Nationality Act 1920 (Cth). 82 This applied to men and unmarried women alike: s 11 of the Naturalization Act 1903 (Cth) and s 12 of the Nationality Act 1920 (Cth). 83 Section 18 of the Nationality Act 1920 (Cth). Section 27 of the Australian Citizenship Act 1948 (Cth) provided for the restoration of British subject status to women who lost that status solely by reason of their marriage.

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Kingdom Act of 1914 as amended in 1933.84 That provision only entitled a woman to regain her British subject status, having lost it on marriage to an alien, if the husband naturalised and the woman then had the opportunity to make a declaration of naturalisation once the husband was naturalised.85 The more progressive change came with the 1946 Act insertion of s 18B. This reinstated British subject status to women who had lost it by virtue of their marriage to an alien before the commencement of the section.86 The Second Reading speech of Arthur Calwell, Minister for Immigration and Minister for Information, provides the historic context and explanation for the changes to the Act: In 1930 the Commonwealth of Australia was one of 45 nations represented at an international conference which met at the Hague under the auspices of the League of Nations, to consider certain questions relating to the conflict of nationality laws. As the result of its deliberations the conference agreed to an international convention to which the Commonwealth was a party … In most civilised countries during recent years the trend has been to adopt a more liberal attitude in regard to the national status of married women … The bill now before the House does not entirely fulfil the Government’s wishes, which are that a woman’s nationality should not be dependent on that of her husband but that, equally with a man, she should have the freedom of choice in so important a matter. Under the bill, a British woman who marries a foreigner will retain British nationality only in Australia and its territories. Outside the limits of the Commonwealth she may be regarded as an alien if under the law of her husband’s country she acquires his nationality. In explanation for this apparent weakness … the Imperial Conference … did not debar any member of the British Commonwealth who desired to do so from conferring local rights within its territory on women who have ceased to be British subjects by marriage with aliens. For the present therefore the best that can be done for women resident in Australia is to make provision that in Australia and its territories they will not lose their British nationality because of marriage with a foreigner. It is hoped that in the not far distant future … the Commonwealth Government will then do its utmost to have brought into being a uniform provision throughout the British Commonwealth whereby a woman shall be free to determine her own nationality on marriage.87

84 As cited in Parry, Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland (1957) p 545. 85 See s 18(5) of the Nationality Act 1920 (Cth) as amended. 86 Parry cites the commencement as 7 November 1946. 87 Australia, House of Representatives, Parliamentary Debates (14 March 1946) pp 314–316 (Arthur Calwell).

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Children and nationality [3.90] Children were also dealt with specifically by Australia’s early nationality laws. Although the terms “infant” and “minor” were not defined in the early Acts, the age of majority in Australia at the time was 21 years. Thus, when the law referred to a “minor”, it referred to a person under the age of 21.88 The Australian Citizenship Instructions89 set out the way in which British nationality was recognised before 1949 by birth: 2.7.6 [Birth in Australia] Before 26 January 1949 Prior to 26 January 1949 Australian citizenship did not exist and people born in Australia were British subjects. Australia shared a common nationality code with the United Kingdom and the other Commonwealth countries at the time. This nationality code had been established in Australian law by the Nationality Act 1920. Prior to 26 January 1949 birth in Australia or within any country of the Commonwealth conferred British subject status on the child, irrespective of the parent’s status.90

Therefore, all children born within the territory were British subjects by birth in Australia.91 This jus soli approach to nationality – citizenship on the basis of birth in Australia – was included in the 1948 Act and remained a feature of Australian citizenship law until 1986. After 1986, children born in Australia would only become citizens at birth if one of their parents was a citizen or permanent resident at the time.92

88 The age of majority was 21 years at common law. It was reduced to 18 years by State and Territory legislation enacted in the 1970s: see Age of Majority Act 1974 (ACT); Minors (Property and Contracts) Act 1970 (NSW); Age of Majority Act (NT); Age of Majority Act 1974 (Qld); Age of Majority (Reduction) Act 1970–71 (SA); Age of Majority Act 1973 (Tas); Age of Majority Act 1977 (Vic) and Age of Majority Act 1972 (WA). 89 Department of Immigration and Border Protection, Australian Citizenship Instructions (1 January 2015) LEGENDcom. The instructions are discussed in Chapter 4 at [4.210]. Note that from 1 June 2016, the Australian Citizenship Instructions detail the citizenship operational instructions, rather than the Department’s policy, which is contained in a new Citizenship policy that largely mirrors the former ACIs. Chapter 23 covers “British Subjects” and Chapter 24 covers “Historical Provisions” in this newer document: see https://www.border.gov.au/Citizenship/Documents/acis-june-2016.pdf. 90 Department of Immigration and Border Protection, Australian Citizenship Instructions (1 January 2015) LEGENDcom at [2.7.6]. 91 Nationality Act 1920 (Cth) s 6(1) stated that any pereson born within His Majesty’s dominions and allegiance was deemed to be a natural-born British subject. The child of a British subject was deemed to have been born within His Majesty’s allegiance if born in a place where by treaty, capitulation, grant, usage, sufferance or other lawful means, His Majesty exercised jurisdiction over British subjects. Children born on British ships were also British subjects: Nationality Act 1920 (Cth) s 6(1)(c). 92 Citizenship by birth under the 1948 Act and the 2007 Act is discussed in Chapter 4 at [4.250].

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If not born in Commonwealth territory, then a child’s status depended heavily on their father’s.93 A person born outside Great Britain’s dominions would be a British subject if their father was a British subject and: • their father was born on British soil;94 • their father prior to the birth had been granted a certificate of naturalisation, had become a British subject by annexation of territory, or was in the service of the Crown;95 or • their birth was registered at a British Consulate within a specified time limit.96 Otherwise, the person could only become a British subject by naturalisation. Under the Naturalization Act 1903 (Cth), a child’s naturalisation also depended heavily on their father. An infant was deemed to be naturalised if they resided at any time with their father in Australia and their father obtained a certificate of naturalisation. A child who resided in Australia with just their mother was deemed to be naturalised only if their mother was widowed or divorced and obtained a certificate of naturalisation, or if their mother was married to a “natural-born British subject or to a person who has obtained a certificate of naturalization”.97 The framework under the Nationality Act 1920 (Cth) was slightly more complex. Under that Act, children (like married women) were considered to be “under a disability”. Certificates of naturalisation could not be granted to any person under a disability except as provided by the Act.98 The Act provided that the Governer-General could include the name of any minor who was the child of a person to whom a certificate of naturalisation was issued prior to the child’s birth. Upon such inclusion, that child became a British subject, but could, “within one year after attaining his majority”, make a declaration of alienage and thereupon cease to be a British subject.99 In addition, the Governer-General could “in his absolute discretion in any special case in which he thinks fit”, grant a minor a certificate of naturalisation.100 93 See discussion of women’s citizenship in Chapter 3 at [3.60]. 94 Nationality Act 1920 (Cth) s 6(1)(b) as amended by Nationality Act 1925 (Cth). The Act uses the terminology “born within His Majesty’s allegiance”. 95 Nationality Act 1920 (Cth) s 6(1)(b). 96 Nationality Act 1920 (Cth) s 6(1)(b). 97 Naturalization Act 1903 (Cth) s 10. 98 Nationality Act 1920 (Cth) s 10(3). 99 Nationality Act 1920 (Cth) s 10(1). 100 Nationality Act 1920 (Cth) s 10(2). A general discretion to grant citizenship to children endured in the 1948 Act and the 2007 Act, but was significantly limited in 2009, to apply only to children who are permanent residents. For a discussion of the implications of this amendment, see Rubenstein and Field, “Citizens in their Own Right: Achieving Adequate Recognition of Children in Australia’s Immigration and

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Even once they had become a British subject, a child’s status still depended on that of their parents. If a parent’s certificate of naturalisation was revoked,101 the Governor-General could direct that his children and wife (unless she was herself a British subject at birth) ceased to be British subjects.102 In addition, if a person ceased to be a British subject, their minor children also ceased to be subjects (unless those children did not, by the law of any other country, become naturalised in that country). However, any child whose British subject status ceased in this way could declare within one year of attaining majority that they wished to resume their British nationality.103 The provisions governing children’s nationality in the first 48 years of the Australian Federation demsonstrate a conceptualisation of children as passive actors, only able to make decisions about their nationality once they reached a certain age. They also tend to treat children as objects, or the property, of their parents. At the time, this was generally consistent with broader social attitudes regarding the place of children in society. The words of the 1924 Geneva Declaration on the Rights of the Child demonstrate that children were seen as the objects, rather than the subjects, of rights, requiring welfare and protection rather than entitlement and agency.104 However, it has been argued that this conceptualisation

Citizenship Framework” in Crock (ed), Creating Futures: Settling Children and Youth from Refugee Backgrounds (forthcoming). See also the discussion of s 21(5) of the Australian Citizenship Act 2007 (Cth) in Chapter 4 at [4.690]. 101 The Governor-General could revoke a fraudulently or falsely obtained certificate of naturalisation. Certificates could also be revoked if continuance was not conducive to public good and if the holder assisted an enemy of His Majesty in a war, was sentenced to 12 months’ imprisonment or penal servitude, or to a fine of £100 or more within five years of the date the certificate was granted, was not of good character at the date of grant, had since the grant been ordinarily resident outside His Majesty’s dominions other than as a representative or in service to the Crown for seven years or more without maintaining substantial connexion, or was a citizen of a country at war with His Majesty. See Nationality Act 1920 (Cth) s 12. 102 Nationality Act 1920 (Cth) s 13(1). 103 Nationality Act 1920 (Cth) s 20(2). 104 See Geneva Declaration of the Rights of the Child, adopted 26 September 1924 (League of Nations Official Journal Spec Supp 21, 1924) p 43. The declaration states: 1. The child must be given the means requisite for its normal development, both materially and spiritually; 2. The child that is hungry must be fed; the child that is sick must be nursed; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succored; 3. The child must be the first to receive relief in times of distress; 4. The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation; 5. The child must be brought up in the consciousness that its talents must be devoted to the service of fellow men.

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has endured, perhaps even becoming more marked, in contemporary Australian citizenship and immigration law.105 This review of children’s and women’s citizenship highlights the differential treatment of some sectors of the community within the formal framework of citizenship. It reflects on two aspects of the changed meanings of membership in the legislation in the first 48 years of the century. The next two sections, however, highlight that the broader picture was far from complete regarding membership of the Australian community in the first 48 years from Federation.

THE HIGH COURT AND THE FIRST 48 YEARS [3.100] Aliens are subject to Commonwealth control by virtue of s 51(xix) of the Constitution, which refers to “naturalization and aliens”. This head of power has been used by the Parliament throughout the 20th century and interpreted by the High Court to give the Commonwealth almost complete control106 over laws relating to aliens and, now, “non-citizens”.107 This has been an essential device of exclusion, existing well before the legal term “citizenship” came about. In fact, the difficulties in the distinction between membership and exclusion were reflected in the High Court’s treatment of the area in the years before “citizenship” evolved as a legal term. In a range of important and early High Court decisions, the first legal expressions of citizenship as exclusion appeared.108 What was to be done with people who came to Australia temporarily and then settled permanently? Would they always be liable to deportation and subject to the Commonwealth’s power over immigration, or was there a period after which they were no longer subject to the Commonwealth’s immigration power? What of people born in Australia who left and 105 For example, with the 1986 removal of citizenship at birth in Australia in favour of citizenship at birth to an Australian citizen in Australia. This is discussed in Chapter 4 at [4.250]. See also Rubenstein and Field, “Citizens in their Own Right: Achieving Adequate Recognition of Children in Australia’s Immigration and Citizenship Framework” in Crock (ed), Creating Futures: Settling Children and Youth from Refugee Backgrounds (forthcoming). 106 While this is a plenary power, the Commonwealth Government is still restricted by other notions protected by the Constitution, such as separation of powers and responsible government. The High Court case of Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 reflects this restriction, but see also Crock, “Climbing Jacob’s Ladder: The High Court and the Administrative Detention of Asylum Seekers in Australia” (1993) Sydney Law Review 338. 107 See discussion in Chapter 6 at [6.50] on the High Court and citizenship. 108 These include R v Lindbergh; Ex parte Jong Hing (1906) 3 CLR 93; Chia Gee v Martin (1906) 3 CLR 649; Christie v Ah Sheung (1906) 3 CLR 998; Preston v Donohoe (1906) 3 CLR 1089; Li Wan Quai v Christie (1906) 3 CLR 1125; Robtelmes v Brenan (1906) 4 CLR 394; Attorney-General (Cth) v Ah Sheung (1907) 4 CLR 949; Ah Yin v Christie (1907) 4 CLR 1428; and Potter v Minahan (1908) 7 CLR 277. See also Crock, Immigration and Refugee Law (1998) pp 15–20.

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wanted to return? Several High Court cases are highlighted in this section to show the difficulties consistently experienced in determining where the boundaries of membership lay. Within the first ten years of the Commonwealth’s existence, the court dealt with some of these issues in Potter v Minahan (1908) 7 CLR 277. Minahan was born in Australia to a white mother and a Chinese father. He left Australia with his father at the age of five, and then returned when he was 31. He argued that he was not an immigrant and so was not subject to the Immigration Restriction Act 1901 (Cth). Minahan was successful and a statement by O’Connor J (at 305) reinforces early expressions of the rights of membership: A person born in Australia, and by reason of that fact a British subject owing allegiance to the Empire, becomes by reason of the same fact a member of the Australian community under obligation to obey its laws, and correlatively entitled to all the rights and benefits which membership of the community involves, amongst which is a right to depart from and re-enter Australia as he pleases without let or hindrance unless some law of the Australian community has in that respect decreed the contrary.

Yet Isaacs J, in dissent (at 308), did not accept birth in Australia as leading to the conclusion that one was a member of the community: The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people. Nationality and domicil are not the tests; they are evidentiary facts of more or less weight in the circumstances, but they are not the ultimate or decisive considerations.

Higgins J, also in dissent (at 320–321), displayed the difficulties in not having a notion of citizenship: It is urged that there is an Australian species of British nationality; that a man born in Australia is an “appendage to the soil”; that when a man goes back to the land of his birth he is not “immigrating” … Throughout the British Empire there is one King, one allegiance, one citizenship. I use this last word, not in the Roman or in the American sense, but only because there is no suitable abstract noun corresponding to the word “subject” … I know of no principle of British law to the effect that a man has some peculiar right to resort to one particular part of the Empire as distinguished from other parts.

The dissenting judgments of Isaacs and Higgins JJ were later upheld by a majority of the High Court in 1925 in Donohoe v Wong Sau (1925) 36 CLR 404, where Isaacs J (at 408) looked at Wong Sau’s language, upbringing, education and sentiment, and decided that none of them indicated she was part of the Australian community, despite her birth in Australia. The question of individuals who were not born in Australia, yet who sought protection from deportation due to their becoming part of the Australian community, was raised poignantly in the 1920s in Re Yates; Ex parte Walsh (1925) 37 CLR 36. There, Knox CJ relied on the decision in Potter v Minahan (1908) 7 CLR 277 in concluding (at 63) that the scope of

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the immigration power applied equally to questions of entry to, and deportation from, Australia. In his view (at 64): a person who has originally entered Australia as an immigrant may, in course of time and by force of circumstances, cease to be an immigrant and becomes a member of the Australian community.

Walsh had been born in Ireland and, 22 years later, migrated to Australia, where he remained for the next 32 years. In Knox CJ’s view (at 65), if he had sought to enter the Commonwealth on his return from an overseas visit, the immigration laws could no longer apply to him, and so the deportation order was similarly invalid. A contrasting exclusive notion of membership was most explicitly expressed by Isaacs J (at 82–84): Immigration … is not obliterated for ever by the mere passage across the frontier, nor by the momentary leap over a barrier which magically and instantaneously transforms a Hindoo or a Kanaka, for example, into an Australian. If such were its meaning, the cherished national policy of Australia would indeed be in peril … Until an immigrant, whenever he arrives in Australia, has settled down so as in fact to have his “home” in Australia as a home which he finally adopts without intention of ever leaving Australia, he is still an immigrant, whose “movement” of immigration is uncompleted.

Isaacs J then included a hypothetical scenario in his judgment, which also reflects his view on the place of citizenship and the Commonwealth’s power over non-citizens. He took as an example (at 85–86) an Italian man who arrives in Australia in 1925 and enters under the immigration power: He settles and perhaps marries, and so acts that he becomes domiciled within a year, and is so satisfied with his surroundings that he abandons all intention of leaving Australia. If of foreign nationality he becomes naturalized so as to enjoy certain advantages which an alien cannot have. Australia is his “home” as far as he can make it so. It is said he is incorporated into the Australian community. Then he begins activities designed to establish anarchical and terroristic or treasonable societies. Parliament retrospectively enacts that all persons immigrating as from 1924 shall be deportable as prohibited immigrants, if they are found engaging in such practices. Is it the law of the Constitution that he is immune?

In Isaacs J’s view (at 87), the answer was vehemently “‘no’ – ‘[o]nce an immigrant always an immigrant’.” In essence, this view clearly created different levels of membership – those born in Australia being the exclusive members (although Isaacs J did not even consider birth a conclusive basis for membership), and those who migrated to Australia, who could never be full members in his view. Later in his judgment (at 88ff), Isaacs J referred to those who become naturalised as “citizens” and so, too, did Starke J refer to those “whom I may call citizens of the Commonwealth or part of the community known as the Australian people” (at 138). Not only was the terminology difficult, so was the outcome. Knox CJ, Higgins and Starke JJ agreed that the immigration power did not authorise Parliament to legislate for people who have

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made Australia their permanent home,109 yet those judges themselves were not all part of the majority decision in the matter. The confused approach of the court to these issues was still evident over 20 years later in Koon Wing Lau v Calwell (1949) 80 CLR 533. This case involved 38 plaintiffs who sought release from custody pending deportation, and an injunction against the deportation itself. A clearer sense of the use of the aliens head of power110 can be seen in this case, yet without resolve on the issues of absorption into the Australian community and on the question as to who, in fact, can be regarded as part of the Australian community. In Latham CJ’s view (at 561), “[n]o person simply by his own act can make himself a member of the community if the community refuses to have him as a member”. Latham CJ then followed Isaacs J’s earlier opinion that the Commonwealth Parliament could validly deport at any time people who came into Australia as immigrants, based on whatever factors it liked: “age, sex, race, nationality, personal character, occupation, time of arrival” (at 561–562). Williams J disagreed on philosophical grounds about the meaning of “immigration” and “membership” (at 590): [A] law which allows a person to enter and stay in Australia indefinitely but prevents him from ever becoming a member of the Australian community is not a law with respect to immigration, because the essence of immigration is the entry by a person into a country in order to make that country his permanent home. A law with respect to immigration is therefore a law which regulates the right to immigrate, so that on compliance with its conditions the immigrant becomes a member of a new community and no longer an immigrant.

However, Williams J’s view is in essence one of the minority views expressed in the first 50 years of the century. The majority of views echoed the reasoning explained earlier for not defining “citizenship” in the Constitution. There were “innumerable difficulties” in dealing with issues of membership of the Australian community, as Isaacs originally argued in the Convention Debates111 and continued to express through the judgments mentioned above. These difficulties fundamentally reflected upon citizenship as exclusion in the first half of the 20th century and a desire to maintain a specific sense of the “proper” boundaries of the Australian community.

DIFFERENT LEVELS OF MEMBERSHIP IN THE FIRST 48 YEARS [3.110] The High Court judgments display an incoherent view about membership of the Australian community. In fact, the decisions contributed to an “administrative concept of citizenship” which appeared 109 Re Yates; Ex parte Walsh (1925) 37 CLR 36 at 63 per Knox CJ, at 110 per Higgins J, at 137 per Starke J. 110 Constitution, s 51(xix). 111 See Chapter 2 at [2.60]

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within policy discussions, identified through archival holdings, prior to the Nationality and Citizenship Act 1948 (Cth):112 There were three administrative civic categories of non-Aboriginal people in Australia before 1948: British subjects with permanent residence (including naturalized people), British subjects without permanent residence, and aliens. British subjects generally possessed full political rights, but only those with permanent residence were considered Australian citizens.113

The category of “non-Aboriginal people” reinforced British subject status but did not ensure equality of treatment. As the research of Chesterman and Galligan shows in clear terms,114 different rights were accorded to people regardless of their subject status.115 While it is clear that British subject status was the “highest” and fullest form of membership in formal terms, it did not ensure substantive membership in practical normative aspects.116 The lack of a substantive, meaningful definition of “citizenship” in the Constitution, and of British subject status in the nationality legislation, laid the ground for a continuing gap between citizenship and membership as a formal status and citizenship as an active, substantive representation of membership of the community. The High Court decisions reinforced this gap as litigation brought before it was mainly concerned with defining “membership” in order to control and determine who in fact constituted the community; who was entitled to travel to Australia, and who could be deported. To this day, there is no constitutional protection from deportation for Australian citizens.117 As well as immigration matters, there are many other areas of government control that reflect different categories of belonging – the right to undertake certain occupations, the right to particular licences, and the right to property, to name a few.118 112 See Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 14. 113 Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 14. 114 See Chesterman and Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997). 115 An interesting comparison in the US is the place of Asian Americans and their citizenship status: see Volpp, ““Obnoxious to their Very Nature”: Asian Americans and Constitutional Citizenship” (2001) 5 Citizenship Studies 57. 116 See, for instance, Gillgren, “Boundaries of Exclusion: A Study of Italian and Croation Immigrants in the Western Australian Timber Industry 1920-1940” (1997) 3 Limina 71 and, more generally, Jordens, Redefining Australians: Immigration, Citizenship and National Identity (1995) for examples of the differential treatment of migrants and inclusion in the Australian community. 117 Although there are international treaties that protect rights of citizens and persons, these are not entrenched in the domestic system. See further, discussion in Chapter 5 at [5.190] about rights of citizens and persons. 118 Dutton discusses these differences in particular under the category of “Aboriginal People and Non-Europeans”: see Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 73.

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David Dutton’s review of the different areas within which citizenship material can be found in the Australian Archives displays the range of administrative matters where levels of membership were important. His collection is an invaluable resource for further work on the development of policy and the historical aspects of membership in Australia.119 One area that he notes contributes to our understanding of membership most poignantly is that of “aliens”: Research into the Commonwealth’s treatment of aliens is essential for the study of citizenship in Australia, since the Commonwealth’s policies governing aliens are just as significant as its more positive civic policies. Moreover, these policies on aliens are revealing for what citizenship meant in Australia.120

Notions of allegiance were central in the first 48 years: The fundamental assumption shaping policies towards aliens during this period was that citizenship status provided an accurate guide to the political allegiance (and therefore political behaviour of all “civilized” people.121 Regulation of aliens ranged from a requirement to register to restrictions on movement, the holding of firearms and the maintenance throughout the 1920s and 1930s of supervision of aliens by the Investigations Branch through technical bureaucratic methods.122 The regulation of aliens beyond 1949 continues to speak to current notions of membership of the Australian community and, indeed, the most recent changes to the Australian Citizenship Act in December 2015 regarding the stripping of citizenship of dual citizens also revolve around this issue.123

119 In Chapter 5 of this book, a fuller analysis of the different rights and responsibilities of the different levels of legislative membership existing today will be covered, reflecting upon current notions of memberhsip. Ann-Mari Jordens has also undertaken substantial historical research on citizenship and membership: see further, Jordens, Redefining Australians: Immigration, Citizenship and National Identity (1995), and Alien to Citizen: Settling Migrants in Australia, 1945–1975 (1997). 120 See Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 59. See also Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) pp 81–85; Dutton, “Strangers and Citizens: The Boundaries of Australian Citizenship 1901–1973” (PhD thesis, University of Melbourne, Department of History, 1998) pp 77–81. 121 Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 59. 122 Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 59. See also the series produced by SBS Broadcasting in 2016 on this issue: http://www.sbs.com.au/news/feature/unwanted-australians. 123 See also Jordens, Alien to Citizen: Settling Migrants in Australia, 1945–1975 (1997) and Rubenstein, “From Supranational to Dual to Alien Citizen: Australia’s Ambivalent Journey” in Bronitt and Rubenstein (eds), Citizenship in a Post-National World: Australia and Europe Compared (2008) pp 38–53. See further the discussion about stripping of citizenship in Chapter 4 at [4.1160].

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NATIONALITY AND CITIZENSHIP – THE BRITISH LEGACY AND IMPETUS FOR AUSTRALIAN CITIZENSHIP [3.120] This concluding section emphasises how an independent Australian identity was resisted and how this influences an understanding of Australian citizenship today. The confusion about membership in Australia has been further complicated by British subject status and Australia’s links to Britain. In comparison to Australia, Canada was ahead in its steps toward independent citizenship. According to Donald Galloway, writing about the emergence and evolution of Canadian citizenship law, well before the enactment of the Canadian citizenship Act, Canada had “legalized the statuses of ‘Canadian Citizen’ … and ‘Canadian National’”.124 Indeed, as early as 1931, the Canadian Secretary of State proposed a Canadian Citizenship Bill that “bore close resemblance to the one introduced fifteen years later”,125 although it was withdrawn before its Third Reading. It is clear from Galloway’s research that Canada’s motivations were its standing in the international community as much as its concern to establish the rights and privileges of Canadian citizenship. The Australian archival records show that in September 1945 Arthur Calwell, Minister for Immigration, proposed to the Australian Cabinet that “Australian Nationality” be defined in law in order to facilitate immigration and deportation, the issue of passports and the representation of Australians abroad.126 At around the same time: advice was received that the Canadian Government proposed to introduce a Canadian citizenship Bill in the near future, and it was decided, in the circumstances to defer consideration of the question. … The passage of the Canadian act in 1946 was followed in February, 1947, by the Conference of Nationality Experts of the various countries of the British Commonwealth, convened at the invitation of the United Kingdom Parliament, to discuss a draft scheme prepared by the United Kingdom authorities.127

In introducing the Bill, Arthur Calwell desired that it be: 124 Galloway, “The Dilemmas of Canadian Citizenship Law” (1999) 13 Georgetown Immigration Law Journal 201 at 211. See also Mann, “The Evolution of Commonwealth Citizenship, 1945–1948 in Canada, Britain and Australia” (2012) 50(3) Commonwealth & Comparative Politics 293. 125 Galloway, “The Dilemmas of Canadian Citizenship Law” (1999) 13 Georgetown Immigration Law Journal 201 at 213. 126 See above, Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 14. See also the Second Reading speech of Arthur Calwell of the Nationality and Citizenship Bill 1948 (Cth), where he stated that “[i]n 1945, the Government considered the question of legislation to provide for a legal citizenship, combined with the maintenance of the common status of British subjects in Australia”: Australia, House of Representatives, Parliamentary Debates (30 September 1948) p 1062 (Arthur Calwell). 127 Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 14.

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clearly understood, and this is a point which I cannot too strongly emphasize, that creation of an Australian citizenship under this bill will in no way lessen the advantages and privileges which British subjects who may not be Australian citizens enjoy in Australia.128

Irving notes that “it still comes as a surprise to learn that the Nationality and Citizenship Bill was roundly attacked when it went before the parliament in 1948”.129 The Acting leader of the Opposition, Mr Harrison, proclaimed: We are essentially British. We take pride in the fact that 96 per cent of our people are of British stock. Why should we be forced, as an essentially British community to tail along with Canada? … The Government has not obtained a mandate to introduce this new concept of dominion citizenship, and sever the crimson thread of kinship which formerly bound Australia to other parts of the British Empire.130

Similar sentiments were expressed by Mr Bowden, member for Gippsland: This measure means the breaking up of the British Empire, step by step. I do not believe that Australians as a whole accept this legislation, or that honorable members should acquiesce meekly in it because the present British Government which is making Great Britain a home of socialism, has accepted it.131

But the Act did much to retain a sense of the “crimson thread of kinship”, as is further explained in the next chapter examining the Australian Citizenship Act 1948 (Cth) and its successor 2007 Act. British subject status, and Australia’s connections with Britain, complicated the development of an independent Australian citizenship. This is reflected today in various ways – through High Court cases where British subjects have successfully sought to defend deportation132 despite failing to do so in others,133 and in legislation like the Commonwealth Electoral Act 1918 (Cth), which enables British subjects on the electoral roll before 1984 to remain members of the political community.134 The transformation from subject to citizen was not a radical transformation of identity.135 This confused 128 Australia, House of Representatives, Parliamentary Debates (30 September 1948) pp 1062–1063. 129 See Irving, “Citizenship before 1949” in Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000) p 19. 130 Australia, House of Representatives, Parliamentary Debates (18 November 1948) p 3232 (Mr Harrison). 131 Australia, House of Representatives, Parliamentary Debates (25 November 1948) p 3569 (Mr Bowden). 132 See further, Chapter 6 at [6.80] and [6.40] in particular, Re Patterson; Ex parte Taylor (2001) 207 CLR 391. 133 For example, Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178 and Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. 134 See further, Chapter 5 at [5.30] and the discussion on voting rights and responsibilities in Chapter 6 at [6.170]. 135 Note, however, the conceptual difference between subject and citizen, as discussed in Chapter 1 at [1.20].

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legal status contributes to the greater tension between citizenship as exclusion and citizenship as inclusion.

Chapter 4

Australian Citizenship Act 2007 (Cth) Kim Rubenstein and Jacqueline Field

[4.10] CONSTITUTIONAL BASIS OF THE ACT ....................................................................... 92 [4.20] Naturalisation and aliens .................................................................................................... 94 [4.60] “Immigration and emigration” ........................................................................................ 104 [4.70] Limits of the power over citizenship .............................................................................. 106 [4.80] Future changes to the Constitution and citizenship ..................................................... 110 [4.90] THE PREAMBLE ................................................................................................................. 111 [4.100] “Citizenship represents full and formal membership of the community of the Commonwealth of Australia” ......................................................................................... 112 [4.110] “Citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, whilst respecting their diversity” ........................................ 113 [4.120] “Person granted … pledging loyalty to Australia and its people … sharing … democratic beliefs … upholding and obeying the laws of Australia” .................... 114 [4.130] EVOLUTION OF AUSTRALIAN CITIZENSHIP UNDER THE AUSTRALIAN CITIZENSHIP ACT ........................................................................................................... 117 [4.140] British subjects and the Australian Citizenship Act ................................................... 118 [4.200] Who is recognised as an Australian citizen? ............................................................... 127 [4.210] CITIZENSHIP POLICY .................................................................................................... 129 [4.220] Policy and decision-making ............................................................................................ 130 [4.230] Children and citizenship policy ..................................................................................... 132 [4.240] AUTOMATIC ACQUISITION OF AUSTRALIAN CITIZENSHIP ........................... 134 [4.250] Citizenship by birth .......................................................................................................... 135 [4.280] Citizenship by adoption .................................................................................................. 142 [4.320] Citizenship for children abandoned in Australia ....................................................... 143 [4.360] Citizenship by incorporation of territory ..................................................................... 144 [4.370] AUSTRALIAN CITIZENSHIP BY APPLICATION ..................................................... 144 [4.380] Citizenship by descent ..................................................................................................... 145 [4.470] Citizenship by adoption in accordance with Hague Convention on Intercountry Adoption ..................................................................................................... 155 [4.530] Citizenship by conferral .................................................................................................. 159 [4.960] Resumption of citizenship ............................................................................................... 223

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[4.1060] Good character ................................................................................................................ 230 [4.1110] Grounds for rejection of application ............................................................................ 236 [4.1160] CESSATION OF CITIZENSHIP .................................................................................... 241 [4.1170] Renunciation of citizenship ........................................................................................... 243 [4.1190] Revocation – offences or fraud ..................................................................................... 247 [4.1240] Revocation – breach of undertaking for special residence requirements ............. 257 [4.1250] Service in armed forces of enemy country or declared terrorist organisation .... 258 [4.1270] Conviction for terrorism offences and certain other offences ................................. 260 [4.1280] Children of responsible parents who cease to be citizens ...................................... 262 [4.1290] Historical provisions regarding loss of citizenship .................................................. 263 [4.1350] The Constitution and 2015 provisions relating to cessation of citizenship ......... 277 [4.1360] EVIDENCE OF AUSTRALIAN CITIZENSHIP ......................................................... 278 [4.1370] OFFENCES AGAINST THE ACT ................................................................................ 279 [4.1380] False statements or representations ............................................................................. 280 [4.1390] Offences related to evidentiary notices ....................................................................... 281 [4.1400] Offences related to identifying information ............................................................... 282 [4.1410] Bogus documents ............................................................................................................ 282 [4.1420] APPLICATION REQUIREMENTS, DECISIONS AND ADMINISTRATIVE MATTERS ......................................................................................................................... 283 [4.1420] Application requirements .............................................................................................. 283 [4.1430] Decision-making and delegation ................................................................................. 283 [4.1440] Administrative matters .................................................................................................. 284 [4.1450] REVIEW OF DECISIONS .............................................................................................. 284 [4.1460] Judicial review ................................................................................................................. 285 [4.1470] Merits review ................................................................................................................... 285 [4.1480] CONCLUSION ................................................................................................................ 289

CONSTITUTIONAL BASIS OF THE ACT [4.10] The Australian Constitution (Constitution) is the foundation of the Australian legal system.1 Thus, it is the logical starting point for any inquiry into the legal concept of citizenship,2 even though Australian citizenship is not mentioned in the Constitution itself.3 In reviewing the Australian Citizenship Act 2007 (Cth), the following constitutional questions arise: • How does the Commonwealth have the legislative power in this area? • Can the States still legislate on citizenship? 1 As explained in Chapter 1 at [1.30]. 2 This chapter deals predominantly with the legal concept of citizenship. The honorary status of citizenship established in 2013 is discussed at [1.20] in Chapter 1. 3 As discussed in Chapter 2 at [2.10].

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• Are there any limits to what the Commonwealth can do when it comes to citizenship? These questions will be canvassed in the first part of this chapter before proceeding to an analysis of the Act. The Commonwealth’s power over citizenship is not explicitly granted by the Constitution, but has been widely accepted. In Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 (Nolan), Gaurdon J stated (at 190): [T]here can be no doubt as to the power of the Parliament to enact laws prescribing the conditions currently prescribed by the Citizenship Act for the acquisition of citizenship.

This statement was excerpted in the 1994 report of the Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship.4 The Committee went on to comment that: although the constitutional validity of Australian citizenship legislation has not been considered directly by the High Court, the validity of Australian citizenship legislation has been supported in statements by that Court.5

However, Gaudron J’s statement in Nolan does not necessarily provide sufficient authority for the breadth of the current Act. In looking at her words in the context of the rest of her discussion in Nolan, it could be argued that her reference to “the acquisition of citizenship” only covers naturalisation, and not citizenship by birth, descent and adoption. This is because her discussion of the matter was in contrast to s 12 of the Migration Act 1958 (Cth) which concerns the deportation of non-citizens. Her reference to the “acquisition of citizenship” is about someone who needs to be naturalised to be an Australian citizen. Moreover, more restrictive comments about Parliament’s definitional powers over citizenship follow this statement and may also restrict the breadth of its application. Gaudron J went on to state (at 192): The power to legislate with respect to naturalization and aliens seems necessarily to carry with it a power to revoke the grant of naturalization and a power to define the circumstances in which a non-alien may become an alien. However, those powers are not at large.

Michael Pryles argues that Australian citizenship legislation is based in a number of (broad) heads of power. He suggests that while it is difficult to see how the “naturalisation” power is broad enough to cover legislation dealing with the citizenship of natural-born Australians, the “aliens” power could be broad enough because of Parliament’s power to define “aliens”.6 In his view, this could validate the whole Act.7 Other express 4 Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) p 83. 5 Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) p 83. 6 As discussed at [4.70]. 7 Pryles, Australian Citizenship Law (1981) p 11.

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powers of the Commonwealth Constitution that may support the Australian Citizenship Act 2007 (Cth) are the immigraton and emigration powers (s 51(xxvii)), the defence power (s 51(vi)) and the external affairs power: s 51(xxix).8 This section will focus on the “naturalisation and aliens” and the “immigration and emigration” powers.

“Naturalisation and aliens” [4.20] The Commonwealth Parliament has power to make laws with respect to “naturalization and aliens” through s 51(xix) of the Constitution. According to McHugh J, in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [99], “[t]he power is plenary”. It is not, however, an exclusive power of the Commonwealth. Theoretically, the States can continue to legislate under s 51 of the Constitution unless the Commonwealth chooses to “cover the field”.9 The Commonwealth has chosen to “cover the field” through s 11(3) of the Australian Citizenship Act 2007 (Cth), expressly stating that the Act shall apply “to the exclusion of any provisions of a law of a State or Territory that provide for Australian citizenship”.10 While citizenship was discussed at the Constitutional Conventions in the 1890s,11 s 51(xix) was adopted in the 1897–1898 Constitutional Convention without debate.12 The central regulation of aliens was fundamental to many framers’ desire to federate.13 8 Kathryn Cronin notes in her chapter on “Citizenship” in Halsbury’s Laws of Australia (1997) that “the provisions of the Act dealing with loss of Australian citizenship on acquisition of another citizenship (s 17) or renunciation [sic] of Australian citizenship by service in the armed forces of a country at war with Australia allow for removal of citizenship from Australians who acquired citizenship by birth in Australia. Although such persons are not and never were aliens, provisions for the removal of citizenship would appear to be supported by the external affairs and defence powers … or by an implied power which Parliament enjoys by reason of the existence of Australia as a nation-state”: at [77-1]. 9 Section 109 of the Constitution provides for the Commonwealth law to prevail in the event there is any inconsistency between Commonwealth or State legislation. Inconsistency has been interpreted by the court to include indirect inconsistency and this arises if the Commonwealth chooses to cover the field. See Viskauskas v Niland (1983) 153 CLR 280. 10 The desire to exclude the States existed from the beginning of federal control over the area. The Naturalization Act 1903 (Cth) excluded the States from issuing certificates of naturalisation through s 13. This was referred to in Kenny v Minister for Immigration and Ethnic Affairs (1993) 42 FCR 330 at 338. The Australian Citizenship Act 1948 (Cth) expressed an intention to “cover the field” in s 52. 11 As explained in Chapter 2 at [2.10]. 12 Pryles also points out similar provisions in the US Constitution, Art 1, s 8, cl 4 and the British North America Act 1867 (UK), s 91(25). Also, prior to the enactment of the Commonwealth Constitution, the colonies had the power to refer “Naturalization and Aliens” legislation to the Federal Council of Australasia under the Federal Council of Australasia Act 1855 (UK). 13 See Chapter 2 at [2.140]. The Immigration Restriction Act 1901 (Cth) (Act No 17 of 1901) was one of the first pieces of federal legislation passed in May 1901. See Crock, Immigration and Refugee Law in Australia (1998) p 13.

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But does the power over “naturalization and aliens” extend to other matters pertaining to citizenship?14 First, the meaning of “naturalisation” needs understanding. Meaning of “naturalisation” [4.30]

Quick and Garran defined “naturalisation” as:

the process, defined by law, by which an alien renounces his original allegiance and is converted into a subject or citizen, entitled to all the rights and privileges of natural-born subjects and citizens in the country in which he [is] domiciled.15

Not surprisingly, this definition is outdated, since renunciation of a former citizenship is no longer necessary for naturalisation in Australia.16 Additionally, the entitlement to all the rights and privileges of naturalborn subjects and citizens is misleading. For instance, an “equality of citizenship” has not been consistent in Australian history.17 Finally, the reference to domicile is inaccurate according to private international law.18 More recently, naturalisation has been defined in the High Court as “the process by which one undertakes allegiance to a new sovereign”.19 This reflects the definition of the word “naturalise” in the Oxford English Reference Dictionary as being to “admit (a foreigner) to the citizenship of a country”. In Pochi v Macphee (1982) 151 CLR 101 at 111 (Pochi),20 the High Court confirmed that common law naturalisation can only be achieved by an 14 This question was directly asked in a “Letter to the Editor” in the Australian Law Journal (1999) 73 ALJ 785) where David Ash asked about the validity of legislation that refers to Australian citizens, such as the Australian Institute of Marine Science Act 1972 (Cth). Legislation referring to citizenship is the subject of Chapter 5. 15 Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) (reprinted 1995) p 601. 16 Section 11 of the Australian Citizenship Amendment Act 1986 (Cth) removed the words “renouncing all other allegiance” from the oath and affirmation of allegiance found in Sch 2 of the Australian Citizenship Act 1948 (Cth). The words were originally added by s 11 of the Nationality and Citizenship Act 1966 (Cth). 17 Two contrasting examples illustrate this point. First, Indigenous Australians were legally citizens since the term began in 1949 yet were not entitled to the same rights as other non-Indigenous Australians. This is graphically illustrated in Chesterman and Galligan (eds), Citizens without Rights (1998). Michael Pryles also points out that early forms of British naturalisation did not confer upon the recipient all the rights of natural-born citizens. See Pryles, Australian Citizenship Law (1981) p 2. 18 See Pryles, Australian Citizenship Law (1981) p 2 and Sykes and Pryles, Australian Private International Law (3rd ed, 1991) p 359. 19 See Singh v Commonwealth (2004) 222 CLR 322 at 375 per McHugh J. 20 Pochi had argued that he had been “absorbed” into the Australian community and was beyond the deportation power within the Migration Act 1958 (Cth). See Crock, Immigration and Refugee Law in Australia (1998) pp 16, 20, 21, 192 and 232 where she discusses Isaac J’s judgment in Potter v Minahan (1908) 7 CLR 277 and a range of cases which sought to avoid deportation under this argument. Gaudron J, in dissent in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 194, also confirmed Isaac J’s authority for that proposition. See further discussion in Chapters 3 at [3.100]

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Act of Parliament. Even action by the Crown under prerogative cannot give an alien the status of British subject.21 In the later Federal Court case of Kenny v Minister for Immigration, Local Government and Ethnic Affairs (1993) 42 FCR 330 at 337 (Kenny), Gummow J referred to Pochi to emphasise this point, referring to a special class of foreign royalty naturalised at birth by force of the Princess Sophia Naturalisation Act 1705, 4 Anne c 4.22 Gummow J also noted (at 337) that the modern statutory form of naturalisation has its foundations in the United Kingdom’s Naturalisation Act 1870 (IMP). In a recent Canadian case, the Federal Court of Appeal confirmed that the concept of citizenship has no meaning apart from statute.23 Naturalisation is clearly within the Commonwealth’s power by virtue of s 51(xix) and Pochi confirms that the Australian Citizenship Act 2007 (Cth) validly provides for naturalisation. The later case of Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 also confirms this.24 Meaning of “aliens”25 [4.40] In Koroitamana v Commonwealth (2006) 227 CLR 31 at 38 (Koroitamana), Gleeson CJ and Heydon J stated: Within the limits of the concept of “alien” in s 51(xix), it is for Parliament to decide who will be treated as having the status of alienage, who will be treated as citizens, and what the status of alienage, or non-citizenship, will entail.26

While Parliament’s power to make laws with respect to aliens is generally accepted,27 the “limits of the concept” within which this power must be exercised are not clear. The High Court has considered the definition of “aliens” in s 51(xix) in several cases concerning non-citizens who were and 6 at [6.70]. For further discussion about Gaudron J’s approach to citizenship, see Rubenstein, “Meanings of Membership: Mary Gaudron’s Contributions to Australian Citizenship” (2004) 15 Public Law Review 305. 21 Per Gibbs CJ, citing Blackstone (Blackstone’s Commentaries, 8th ed, Vol 1), Chitty (Prerogatives of the Crown) and Holdsworth (History of English Law, Vol IX). 22 Gummow J also cites Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436. 23 Solis v Minister of Citizenship and Immigration (2000) 186 DLR (4th) 512. The applicant had argued that, notwithstanding he was not a citizen under the Citizenship Act RSC 1985, he had an independent Charter-based right to be considered a citizen largely because of his family ties and roots in Canada. An application for leave to appeal to the Supreme Court of Canada was filed on 29 May 2000 and dismissed by McLachlin CJ, Iacobucci and Major JJ on 23 November 2000 without reasons (Court File No 27947). See discussion also in Chapter 6 at [6.20]. 24 See discussion below at [4.80]. 25 For an excellent analysis of the historical treatment of the term alien, see Prince, “Aliens in their Own Land: “Alien” and the Rule of Law in Colonial and Post-federation Australia” (PhD thesis, Australian National University, 2015): https://openresearchrepository.anu.edu.au/handle/1885/101778. 26 Koroitamana v Commonwealth (2006) 227 CLR 31 at 38, citing Singh v Commonwealth (2004) 222 CLR 322 at 329. 27 Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Singh v Commonwealth (2004) 222 CLR 322; Koroitamana v Commonwealth (2006) 227 CLR 31.

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about to be deported under the Migration Act 1958 (Cth). However, these cases have been brought in a number of different contexts, and the court’s interpretation of the concept has been inconsistent, both between and within contextual circumstances. In the case of individuals with foreign citizenship who were born overseas, the High Court’s position is relatively clear. The majority of the court has adopted a “dichotomous approach to alienage and Australian citizenship”,28 in which a person who is not an Australian citizen by birth or naturalisation is an “alien” for the purposes of s 51(xix). The foundation of this approach is an obiter statement in Pochi v Macphee (1982) 151 CLR 101 at 109–110, where Gibbs J defined aliens as “person[s] born outside Australia whose parents were not Australian and who [have] not been naturalized as an Australian”. The majority in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183 added persons who have “ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage”. The court held in Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162 that an individual’s status as an “alien” could not be changed by absorption into the Australian community.29 As set out by Mason CJ in Cunliffe v Commonwealth (1994) 182 CLR 272 at 295, “an alien who has been absorbed into the Australian community ceases to be an immigrant, though remaining an alien”. However, the status of individuals who are British subjects30 has not been so clear, and the subject of much disagreement in the High Court. Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 involved an individual born in the United Kingdom, who came to Australia as a child, and was subject to deportation as an “alien” in his late twenties after committing a number of crimes in Australia. In deciding that Nolan was an alien (and could thus be deported), the majority affirmed the dichotomous conceptualisation of alienage set out in Pochi v Macphee (1982) 151 CLR 101. While it was acknowledged that the plaintiff, as a British subject, would not have been an alien when the Constitution was drafted, the change was held to be implicit in: the emergence of Australia as an independent nation, the acceptance of the divisibility of the Crown which was implicit in the development of the Commonwealth … and the creation of a distinct Australian citizenship.31 28 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at [69] per Kirby J (dissenting). 29 See particularly, Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162 at 188–189 per McHugh J. This case concerned people born in Cambodia and Vietnam who arrived in Australia as adolescents. They held permanent residence visas. 30 Material concerning British subjects is also covered in Chapter 6 in the discussion at [6.50]. 31 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 185–186.

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This approach was momentarily departed from in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (Patterson). The majority held that a British subject, in essentially the same position as Nolan,32 was not an alien for the purpose of the Constitution and so could not be deported. The majority, while accepting the changes in the relationship between England and Australia acknowledged in Nolan, found that people in Taylor’s situation were in a special category. This was based on a range of reasons. Gaudron J followed her approach in dissent in Nolan, stating (at [47]) that the only change that had occurred for Taylor was an “evolutionary change in constitutional and governmental thinking with the emergence of the notion of the divisibility of the Crown”. This was not enough to change the relationship between people in the position of Taylor and “the body politic constituting the Australian community”: at [48]. In McHugh J’s view, until the passing of the Royal Style and Titles Act 1973 (Cth), “a person, living in Australia, who owed allegiance to the Queen of the United Kingdom was not and is not an alien within the meaning of the Constitution”. McHugh J’s reasons (at [121]) were influenced by s 117 of the Constitution.33 Callinan J agreed with Kirby J’s view (at [302]): The introduction by statute, and then only in 1948, of the non-constitutional notion of citizenship scarcely justified the retrospective imposition, on a very large class of non-citizen British subjects in Australia, of the constitutional status of alien. Such imposition is especially untenable where members of that class have long since been absorbed amongst the people of the Commonwealth and accorded by them the full civil and political rights and duties of Australian nationality.

Gleeson CJ and Gummow and Hayne JJ were in the minority on this constitutional question. They upheld Nolan in finding (at [235]) that “supervening constitutional and political events not involving any positive act or assent on the part of the person concerned” can result in them acquiring alien status. Gummow and Hayne JJ (at [237]) relied upon the relationship between Australia and New Guinea as such an example where people who were Australian citizens immediately before Papua New Guinea’s Independence on 16 September 1975 simultaneously lost their Australian citizenship.34 The High Court’s decision in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 effectively created a new class of people in Australia – “non-citizen

32 Taylor arrived in Australia as a child in 1966 and had resided in Australia ever since. He had been on the electoral roll since turning 18; however, he never applied for Australian citizenship. 33 See discussion in Chapter 6 at [6.40]. 34 See discussion at [4.740] of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 and Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694 where the citizenship status of people born in Papua came under scrutiny.

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British subjects”,35 who could not be detained or deported as aliens.36 However, the existence of this status appears to have been temporary, as the court has more recently returned to its approach in Nolan. In Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (Shaw), the High Court held 4:3 that Shaw, who arrived in Australia in 1974 but never became an Australian citizen, was an alien subject to deportation under the Migration Act 1958 (Cth): [T]he applicant entered Australia as an alien in the constitutional sense. Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te establishes that, this being so, he did not lose that status by reason of his subsequent personal history in this country. Upon the cancellation of his visa, he became an “unlawful non-citizen” within the meaning of the Act.37

The majority set out that the case should be taken as determining that the aliens power extends to all persons who entered Australia after the commencement of the Nationality and Citizenship Act 1948 (Cth) on 26 January 1949, and who were born out of Australia to non-citizen parents and who have not become citizens: The scope of any earlier operation of the power does not fall for consideration. However, it may be observed that, like the other powers of the Parliament, s 51(xix) is not to be given any meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application in some future law.38

For the majority, the enactment of legislation to create the statutory concept of Australian citizenship meant that a non-citizen is an alien for the purposes of s 51(xix). In contrast, McHugh, Kirby and Callinan JJ, in separate dissents, concluded that the enactment of the Australia Act 1986 (UK) (and corresponding federal and State legislation39) was the point after which the special status of non-citizen British subjects became “anomalous and inappropriate, both as a matter of statute and constitutional law”.40 As set out by Kirby J (at 67): 35 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [261] per Kirby J. See further discussion at [4.130]. 36 Note, however, that Gaudron J explains that those people are still within the scope of the Migration Act 1958 (Cth) through the s 51(xxvii) “immigration and emigration” power of the Constitution. For further discussion about Gaudron J’s approach to citizenship, see Rubenstein, “Meanings of Membership: Mary Gaudron’s Contributions to Australian Citizenship” (2004) 15 Public Law Review 305. See further at [4.60]. See also the discussion in Chapter 3 at [3.100], in Chapter 5 at [5.190] and in Chapter 6 at [6.50]. 37 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43 per Gleeson CJ, Gummow and Hayne JJ. 38 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43 per Gleeson CJ, Gummow and Hayne JJ. 39 Australia Act 1986 (Cth); Australia (Request and Consent) Act 1985 (Cth); Australia Acts (Request) Act 1985 (NSW); Australia Acts (Request) Act 1985 (Vic); Australia Acts (Request) Act 1985 (SA); Australia Acts (Request) Act 1985 (Qld); Australia Acts (Request) Act 1985 (WA); Australia Acts (Request) Act 1985 (Tas). 40 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 67 per Kirby J. For further analysis of Michael Kirby’s approach to citizenship, see also

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The process that had begun in the change in Australian nationality at an unspecified time after federation should be taken to have concluded on 3 March 1986. Persons arriving as immigrants in Australia as “subjects of the Queen” on and before that date were not “aliens”. They cannot be deported as such under laws made pursuant to the “aliens” head of constitutional power.

Following this reasoning, because Shaw had arrived before 1986, he could not be considered an alien and deported. However, this was not the majority’s view. Thus, the High Court’s current position is that citizenship is the “obverse of the status of alienage”41 for non-citizens who arrived in Australia after their birth, and that British subjects who arrived after 26 January 1949 hold no special status. However, a notable exception to the position discussed above is the case of people born in Papua before its Independence on 16 September 1975. In this context, the High Court has held that legal citizenship and alienage are not mutually exclusive. The applicant in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 (Ame’s Case)42 was born an Australian citizen in the then Australian Territory of Papua, in 1967.43 Australian citizenship was removed from Papuan citizens at Independence.44 The Constitution of the Independent State of Papua New Guinea45 precluded individuals who had real foreign citizenship from gaining Papua New Guinean citizenship, unless that real foreign citizenship was renounced. An Australian citizen by birth in Papua who had never been granted a right to permanent residence in Australia had no real foreign citizenship.46 Ame argued that because he was a citizen of Australia at birth, he had a right to live anywhere in the country and could not be removed pursuant to the Migration Act 1958 (Cth) for overstaying his visa. He argued that he was therefore a “real Australian” and did not become a citizen of Papua Rubenstein and Lenagh-Maguire, “Citizenship Law” in Freckelton and Selby, Appealing to the Future: Michael Kirby and His Legacy (2009) Ch 3, where there is a discussion of these issues through the judgments of Michael Kirby. 41 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 35 per Gleeson CJ, Gummow and Hayne JJ. 42 For a comprehensive discussion of Ame’s Case and its implications, see Prince, Mate! Citizens, Aliens and “Real Australians” – The High Court and the Case of Amos Ame, Parliamentary Research Brief No 4 2005-06 (27 October 2005); see also Rubenstein, “The Lottery of Citizenship: The Changing Significance of Birthplace, Territory and Residence to the Australian Membership Prize” (2005) 22(2) Law in Context 45; Rubenstein and Field, “What is a Real Australian Citizen? Insights from Papua New Guinea and Mr Amos Ame” in Lawrence and Stephens (eds), Citizenship in Question: Evidentiary Birthright and Statelessness (forthcoming, 2017) Ch 3. 43 People born in Papua between the commencement of the Nationality and Citizenship Act 1948 (Cth) and Papuan Independence in 1975 were Australian citizens. 44 Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) reg 4 removed Australian citizenship from any person who became a Papuan citizen upon Independence. 45 See s 64(1), (2). 46 Constitution of the Independent State of Papua New Guinea s 64(4).

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in 1975. The High Court did not agree, pointing out that, while Mr Ame had been born in “Australia” for the purposes of the Nationality and Citizenship Act 1948 (Cth), the definition in the Migration Act 1958 (Cth) did not include external Territories such as Papua. The court held that “whilst Papuans in the Territory of Papua before Independence Day enjoyed, by Australian law, a form of Australian citizenship it was not, in fact or law, full or real citizenship”.47 The form of citizenship held by Papuans did not confer a right to permanent residence in the States and internal Territories of Australia. The removal of Ame’s citizenship in 1975 was authorised by s 51(xix) because, the court concluded, people such as Ame who were legally “Australians” but were about to become foreign nationals, could be treated as “aliens”, including taking their Australian citizenship away.48 The final context in which the High Court has considered the meaning of “aliens” in s 51(xix) of the Constitution is that of children born in Australia to non-citizen parents. It is in this context that the High Court’s approach has perhaps been clearest. In Singh v Commonwealth (2004) 222 CLR 322 (Singh), the applicant sought a declaration that s 10 of the Australian Citizenship Act 1948 (Cth) was beyond power to the extent that it purports to deny Australian citizenship to any person born in Australia by virtue of their not having attained the age of ten years. The plaintiff had argued that she was not an alien by virtue of the fact that she was born in Australia (albeit to non-citizen parents).49 She argued, therefore, that Parliament did not have the power to treat her as an alien and deport her pursuant to s 198 of the Migration Act 1958 (Cth). The court decided that the five-year-old applicant, born in Australia but accepted as a citizen of India by descent, was an alien within the meaning of s 51(xix) of the Constitution. Adopting a passage set out by the majority in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183, the joint judgment concluded that the term “alien” is a “descriptive word to describe a person’s lack of relationship with a country … [that] means, as a matter of ordinary language, nothing more than a citizen or subject of a foreign state.”50 Parliament was not bound to historical norms of citizenship by birth, because “questions of nationality, allegiance and alienage were matters on which there were changing and developing policies, and which were seen as appropriate for parliamentary 47 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at 471 per Kirby J. 48 The High Court also found that the removal of Papuans’ Australian citizenship was supported by the Commonwealth’s power over Territories in s 122 of the Constitution. The implications of this case for the limits of the power in s 51(xix) are discussed at [4.70] below. 49 The plaintiff was not eligible to apply for a conferral of Australian citizenship under the Australian Citizenship Act 1948 (Cth). The automatic acquisition of Australian citizenship by birth in Australia was abolished by legislative amendment in 1986. 50 Singh v Commonwealth (2004) 222 CLR 322 at [205].

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resolution”.51 Because the plaintiff was a citizen of a foreign state, she was therefore a person within the naturalisation and aliens power. Formal legal citizenship of a foreign state does not appear necessary to constitute alienage, however. In Al-Kateb v Godwin (2004) 219 CLR 562, the High Court held that a stateless person was an alien for the purposes of s 51(xix). A similar outcome was reached in Koroitamana v Commonwealth (2006) 227 CLR 31, which involved two children born in Australia to Fijian parents. The children had never left Australia and, though entitled to be registered as Fijian citizens, their parents had elected not to register them as such. The majority considered it “inherent in the outcome of Singh that the majority of this Court rejected a constitutional notion of Australian nationality defined by reference to a place of birth in Australia”.52 The court confirmed the view of the court in Nolan and Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 that a non-citizen is an alien. The High Court has not settled on a definition of the term “alien” in s 51(xix). The court’s judgments in this area have incorporated strong dissents, and two reversals in approach. Following Singh and Koroitamana, the court’s current view appears to be that the legal status of “citizen” signifies allegiance to Australia, and a lack thereof is sufficient to constitute alienage. This is so even in the absence of formal allegiance to a foreign sovereign.53 Children and alienage [4.50] The cases of Singh v Commonwealth (2004) 222 CLR 322 and Koroitamana v Commonwealth (2006) 227 CLR 31 were about Australian identity, and which children born in Australia should formally be regarded as “Australians”, rather than aliens.54 This was not an issue before 1986, when a legislative amendment removed the automatic acquisition of Australian citizenship by any child born in Australia.55 Australia was one of a few countries still to confer citizenship automatically upon birth in Australia, and the government was concerned

51 Singh v Commonwealth (2004) 222 CLR 322 at [30]. The automatic acquisition of Australian citizenship by birth in Australia was abolished in 1986 by the Australian Citizenship Amendment Act 1986 (Cth) s 4. 52 Koroitamana v Commonwealth (2006) 227 CLR 31 at 49 per Kirby J. 53 See Irving, “Still Call Australia Home: The Constitution and the Citizen’s Right of Abode” (2008) 30 Sydney Law Review 133, particularly 147–151. 54 For extensive discussion of this point, see Prince’s article, “We are Australian: The Constitution and Deportation of Australian-born Children” (Research Paper No 3, Parliamentary Library, Commonwealth, 2003). 55 The Australian Citizenship Amendment Act 1986 (Cth) s 4 amended the 1948 Act so that only children born in Australia to citizens or permanent residents would automatically acquire citizenship. This arrangement continues in the current Act.

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that “[t]his generosity in our law can be exploited by visitors and illegal immigrants who have children born here in order to seek to achieve residence in Australia.”56 Now, children born in Australia to unlawful non-citizen parents are taken to be unlawful non-citizens from birth.57 Singh was the High Court’s first opportunity to consider the constitutional status of Australian-born children. Its finding that a lack of Australian citizenship is synonymous with alienage, an approach followed in Koroitamana, dismissed the argument that children born in Australia (and who had grown up here) deserved a special constitutional status of “non-citizen non-aliens”. Under the Australian Citizenship Act 2007 (Cth), these children will only become citizens by virtue of their birth in Australia if they remain living in the country until they are ten years old.58 This has led to a growing number of long-term or “permanently temporary” migrants in Australia.59 These are children like Tania Singh and the applicants in Koroitamana who, despite being born in Australia and growing up in the country, forming a meaningful membership of the Australian community, remain excluded from the legal status of citizen and thus risk deportation prior to their tenth birthdays. This is significant, particularly in light of Australia’s international obligations. Article 7 of the United Nations’ Convention on the Rights of the Child60 relates to the protection of the child’s legal identity, which includes the right to a nationality. The child’s right to preserve his or her identity, including nationality, is set out in Art 8. The right to nationality has been described as the “most critical and controversial aspect of Article 7 in the context of the persistent and increasing phenomenon of stateless amongst adults and children alike”.61 However, the importance of this right is recognised outside the Convention. For example, the Universal Declaration of Human Rights states that “everyone has the right to a nationality”.62 Nationality has been defined as “the essential condition for securing to the individual the protection of his rights [under international law]”.63 56 Australia, House of Representatives, Parliamentary Debates (19 February 1986) p 868 (Chris Hurford). 57 Cronin, “Primary Consideration: Children in Australian Immigration Law” in Jones and Basser Marks (eds), Children on the Agenda (2001) pp 147, 161. 58 See s 12(1) of the 2007 Act. 59 Mares, “Temporary Migration and its Implications for Australia” (Speech, Senate Occasional Lecture Series, Parliament House, Canberra, 23 September 2011): http:// www.apo.org.au/files/Resource/3_mares_pop_57.pdf. 60 Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). 61 Hodgson, “The Child’s Right to a Legal Identity” (1993) 2 Australian Journal of Family Law 121 at 124. 62 Universal Declaration of Human Rights, UN Doc A/810 (10 December 1948) Art 15. 63 Oppenheim, International Law: A Treatise – Volume 1 (8th ed, 1955) p 669, quoted in Hodgson, “The Child’s Right to a Legal Identity” (1993) 2 Australian Journal of Family

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“Immigration and emigration” [4.60] Section 51(xxvii) of the Constitution is also relevant to the determination of citizenship. Regulating who enters the country impacts upon who can apply for citizenship.64 Gummow J, when a member of the Federal Court, emphasised that: the placing in the hands of the Parliament of the Commonwealth of a power with respect to immigration and emigration … was done with the avowed purpose of conferring a power of exclusion of British subjects not born or naturalized in Australia.65

The Parliament’s power under s 51(xxvii) is not as expansive as its power to make laws with respect to naturalisation and aliens under s 51(xix).66 As explained by McHugh J in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 46: [A] long line of authority establishes that the immigration power does not authorise the Parliament to make laws with respect to persons who have immigrated to Australia, made their permanent homes here and become members of the Australian community.67

This line of authority begins with the case of Re Yates; Ex parte Walsh (1925) 37 CLR 36 (Walsh),68 in which Knox CJ, considering the deportation of two British subjects who had immigrated to Australia in 1893 and 1910, concluded that the power over immigration “should not be construed as extending to persons who had made their homes in Australia and become part of its people”.69 According to the High Court, a point is reached at which:

Law 121 at 124. See also the discussion about international law in the context of loss of citizenship at [4.1160]; Tully, “Citizen Deleted” 33 Australian Yearbook of International law 131; and in international humanitarian law, in Rubenstein, “Shifting Membership: Rethinking Nationality in International Humanitarian Law” in Dolgopol and Gardam (eds), The Challenge of Conflict: International Law Responds (2006). 64 Catherine Dauvergne argues that migration law is more important than citizenship law in deciding who can become an Australian citizen: Dauvergne, “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23 and “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280. Moreover, the administration of the Australian Citizenship Act 1948 (Cth) currently falls within the Department of Immigration and Border Protection. The first Minister for Citizenship was appointed in 2001. Prior to this time, the Minister for Immigration was solely responsible for citizenship. 65 See Kenny v Minister for Immigration and Ethnic Affairs (1993) 42 FCR 330 at 338 where Gummow J cites R v McFarlane: Ex parte O’Flannagan and O’Kelly (1923) 32 CLR 518 at 557–565 per Isaacs J. See also discussion in Chapter 2 at [2.140]. 66 See comments to this effect by Mason CJ in Cunliffe v Commonwealth (1994) 182 CLR 272 at 295. 67 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. 68 See also discussion in Chapter 3 at [3.100]. 69 Re Yates; Ex parte Walsh (1925) 37 CLR 36 at 62.

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a person who has immigrated to Australia will pass beyond the range of the power when the act of immigration is at an end – that is when that person has become a full member of the Australian community.70

In Shaw, Kirby J (at 52) acknowledged that, while “this test of ‘absorption into the Australian community’ is concededly vague”, it is: so well established and so clearly grounded in the constitutional text that it is now beyond dispute … It is a view of the constitutional power over immigration appropriate to a country so dependent upon that process. It is supported by the terms in which the power is conferred by the Constitution, being by reference to a continuous activity (“immigration”) and not by reference to a status acquired by reason of participating in that activity (“immigrants”).71

This said, the High Court has in the past grappled with the boundaries of the consequences of such absorption. For example, in Re Patterson; Ex parte Taylor (2001) 207 CLR 391, Gaudron J (while in the majority in overturning Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 1 and finding that Taylor could not be deported or detained by virtue of not being an alien) states (at [54]) rather obtusely: Although the power to legislate with respect to immigration does not extend to laws for the detention and removal of persons who have been integrated into the Australian community, there is no reason, in my view, why that power does not enable the Parliament to legislate so as to provide for the conferral of visas on persons who have migrated to Australia. Nor in my view, is there any reason why, having legislated to confer visas on such persons, the Parliament cannot legislate to provide for their cancellation.

This statement appears to seek to overturn the otherwise accepted view that persons who have become absorbed into the Australian community are entirely beyond the reach of the immigration and emigration power. The other judges in the majority in Patterson, McHugh, Kirby and Callinan JJ, upheld the view expressed in Walsh that those British subjects are entirely beyond the scope of the immigration and emigration power and, therefore, they cannot have their visas cancelled. This approach was later followed in Shaw. It is important to note that this concept of absorption is relevant to the immigration power under s 51(xxvii), but not the aliens power under s 51(xix) of the Constitution. An individual will not cease to be an alien purely because they have been absorbed into the Australian community.72 70 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 52 per Kirby J, citing R v Director-General of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369 at 373 per Gibbs J. 71 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 69 per Kirby J. 72 See Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162, particularly at 188–189 per McHugh J. This is discussed in the context of the aliens power at [4.20].

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Limits of the power over citizenship [4.70] In 1988 the Constitutional Commission, a body of experts set up to review the Commonwealth Constitution, highlighted that the Constitution did not expressly grant the Federal Parliament power to make laws about nationality or citizenship.73 While Parliament’s power to do so may well be assumed through s 51(xix) or through an implied nationhood power,74 it was not clear from judicial authority that this was indeed the case. The Australian Citizenship Act 2007 (Cth) and its predecessor, the Australian Citizenship Act 1948 (Cth) do more than provide for naturalisation, which is now referred to as “citizenship by conferral”. Both Acts include citizenship by birth and adoption and provide for loss of citizenship.75 But does the Commonwealth Constitution provide the Commonwealth sufficient power to legislate beyond “naturalisation”? Since the Constitutional Commission’s report, the High Court appears to have accepted that the Commonwealth’s powers under s 51(xix) and (xxvii) are broad enough to support the creation of a statutory status of citizenship. As Gleeson CJ stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162 at 173: [U]nder paras (xix) and (xxvii) of s 51, subject to one qualification, parliament has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode.76

The one qualification is that set out by Gibbs J in Pochi v Macphee (1982) 151 CLR 101 at 109. He was certain that “Parliament cannot simply by giving its own definition of ‘alien’ expand the power to include persons 73 Constitutional Commission, Final Report (1988) Vol 1 p 160. 74 Through a series of cases, the High Court has developed an implied nationhood power that gives the Commonwealth Parliament power for matters inherently national: see Victoria v Commonwealth (1975) 134 CLR 338 (Australian Assistance Plan Case) and Davis v Commonwealth (1988) 166 CLR 79. See also a Memorandum of Advice by A R Castan QC, dated 27 June 1995 and incorporated into Hansard in 2002: Australia, Senate, Parliamentary Debates (14 March 2002), proof copy, pp 552–557, which relies upon the implied nationhood power to enable the Commonwealth Parliament to define those situations in which persons will be taken to form part of the “people of the Commonwealth”. 75 In Meyer v Poynton (1920) 27 CLR 436, the High Court held that the law dealing with the revocation of a certificate of naturalisation was within power. This view was expressly approved by Isaacs J in Re Yates; Ex parte Walsh (1925) 37 CLR 36 at 87–89. Gaudron J appeared to take a narrower view in Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 54. For further discussion about Gaudron J’s approach to citizenship, see Rubenstein, “Meanings of Membership: Mary Gaudron’s Contributions to Australian Citizenship” (2004) 15 Public Law Review 305. 76 Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162 at 173.

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who could not possibly answer the description of aliens in the ordinary understanding of the word”. It is for Parliament to determine to whom, within the class of people who answer that description, the power will be applied,77 but not to decide the meaning of the description. In Singh v Commonwealth (2004) 222 CLR 322 at 383, Gummow, Hayne and Heydon JJ emphasised the metaphor of constitutional interpretation that “a stream cannot rise above its source”.78 They stated that: a power to make laws with respect to aliens does not authorise the making of a law with respect to any person who, in the opinion of the Parliament, is an alien. That Parliament has made a law which a party or intervener asserts to be a law with respect to aliens presents the constitutional question for resolution; it does not provide an answer.79

The extent to which the Commonwealth’s power to pass laws with respect to aliens allows Parliament to define that status was a central question for the High Court in Singh. As discussed above (at [4.50]), three members of the majority ultimately identified foreign allegiance as being the “central characteristic” of alienage.80 The majority in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 (Ame’s Case) subsequently adopted allegiance to a foreign sovereign as the “defining characteristic” of the legal status of alienage.81 However, as Michele Foster points out, the challenge is then “to ascertain how that determining characteristic assists in delimiting the scope of Parliament’s power”.82 She questions what “foreign allegiance” means in respect to whether the Commonwealth can alter existing citizenship laws – for example, to restrict citizenship to persons born in Australia, or (as was troubling to a number of judges in Singh) to denationalise all Australian-born citizens with a foreign-born parent, grandparent or great-grandparent.83 Uncertainty also arises for dual nationals, who owe allegiance to another sovereign, and stateless persons, who lack formal

77 Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162 at 173. 78 Citing Fullagar J’s dicta in Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 258 that “[a] power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse”. 79 Singh v Commonwealth (2004) 222 CLR 322 at 383. 80 See Foster, “Membership in the Australian Community: Singh v The Commonwealth and its Consequences for Australian Citizenship Law” (2006) 34 Federal Law Review 161 at 176 for a discussion of the court’s reasoning. 81 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at 458 per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ. 82 Foster, “Membership in the Australian Community: Singh v The Commonwealth and its Consequences for Australian Citizenship Law” (2006) 34 Federal Law Review 161 at 177. 83 Foster, “Membership in the Australian Community: Singh v The Commonwealth and its Consequences for Australian Citizenship Law” (2006) 34 Federal Law Review 161 at 177.

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allegiance to Australia.84 These individuals may be “aliens” for the purposes of s 51(xix), but the extent of Parliament’s powers over them is not certain. The Parliament has sought to rely on this power over dual citizens with the introduction of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth), which enables dual citizens to be stripped of their Australian citizenship in certain circumstances.85 In practice, the power in s 51(xix) has been relied on to legislate for the naturalisation of British subjects and, since 1948, for a statutory construction of Australian citizenship, as well as to make laws regulating the terms on which “non-citizens” may enter, remain and be removed from Australia.86 As McHugh J explained in Re Patterson; Ex parte Taylor (2001) 207 CLR 391, “as long as a person falls within the description of ‘aliens’, the power of the parliament to make laws affecting that person is unlimited unless the Constitution otherwise prohibits the making of the law”.87 Thus, Parliament’s power to regulate migration under the aliens power is very broad. Reflecting on the High Court’s decision in Al-Kateb v Godwin (2004) 219 CLR 562, that an asylum-seeker can be held indefinitely in immigration detention, Peter Prince88 points out that as long as a law is for a purpose related to aliens (or immigration), it does not matter whether it is “unjust or contrary to basic human rights”89 or in contravention of international obligations.90 Indeed, the High Court recently upheld, pursuant to the aliens power, the removal of asylumseekers to Papua New Guinea. Sections 198AB and 198AD of the Migration Act 1958 (Cth) provide for the removal of certain non-citizens to a regional processing facility designated by the Minister.91 In the court’s view, as the sections themselves only provided for the removal of aliens,

84 For discussion, see Foster, “Membership in the Australian Community: Singh v The Commonwealth and its Consequences for Australian Citizenship Law” (2006) 34 Federal Law Review 161 at 178 and Prince, Mate! Citizens, Aliens and “Real Australians” – The High Court and the Case of Amos Ame, Parliamentary Research Brief No 4 2005-06 (27 October 2005). In an international context, see Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic (2013). 85 See further discussion of these amendments at [7.30] and [7.60] and [4.1350]. 86 See Rubenstein and Lenagh-Maguire, “Citizenship and the Boundaries of the Constitution” in Ginsburg and Dixon (eds), Comparative Constitutional Law (2011) p 144. 87 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [100]. 88 Prince, Mate! Citizens, Aliens and “Real Australians” – The High Court and the Case of Amos Ame, Parliamentary Research Brief No 4 2005-06 (27 October 2005). 89 Al-Kateb v Godwin (2004) 219 CLR 562 at 595 per McHugh J. See also Thwaites, The Liberty of Non-citizens: Indefinite Detention in Commonwealth Countries (2014). 90 Al-Kateb v Godwin (2004) 219 CLR 562 at 642 per Hayne J, at 661 per Callinan J. 91 See Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28.

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the question of what would happen to these people once they reached the regional processing facility was not relevant.92 The boundaries of the Parliament’s power under s 51(xix) to grant or remove citizenship are broad, but have not been clearly defined. Therefore, the recommendation of the Constitutional Commission to change the Constitution to include an express power over citizenship is still relevant. In addition, to allay uncertainty, it is desirable that the Federal Parliament’s power to make laws about nationality and citizenship be express and not implied. This concerns more than the Australian Citizenship Act 1948 (Cth) and the current Australian Citizenship Act 2007 (Cth). There are many Acts discriminating upon the basis of citizenship.93 Is the “aliens” head of power sufficient to create laws discriminating upon the basis of a person’s legal status? Actors and Announcers Equity v Fontana Films Pty Ltd (1982) 150 CLR 169 is authority for the view that where laws are directed to persons in their dealings with others who are the subject matter of a legislative power, such as aliens, then the law is operating directly upon the subject. Therefore, any law dealing with citizens and their relationship with non-citizens would come within the “aliens” head of power.94 Finally, McHugh J, sitting as a single judge in his final judgment on the High Court, did state categorically in Hwang v Commonwealth (2005) 222 ALR 83 at [9]: It is hardly to be supposed that the national government of an independent sovereign state such as Australia does not have the power to declare to the world who are the citizens of Australia. This is not a matter that concerns the States. They do not speak on behalf of Australia. If the Parliament of the Commonwealth does not have the power to declare who are the citizens of Australia, no Australian polity has the power. Subject to any constitutional prohibitions, every sovereign country has the undoubted right to determine who shall enter the country and who shall constitute the political membership of the community of that country. That is to say, within the limits of its constitutional powers, every sovereign country has the right to determine who are its citizens and to declare by legislation what are the rights, privileges, immunities and duties of members of that community. It is the Commonwealth that speaks to the world on behalf of the Australian community, and it is the Parliament of the Commonwealth that, subject to any express or implied constitutional prohibitions, has the power to determine who are its citizens.95 92 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at [32]. 93 See Chapter 5 covering all the different legislative forms of distinction between citizens and non-citizens. 94 This was particularly relevant in Cunliffe v Commonwealth (1994) 182 CLR 272 where the law dealt with citizens and their ability to give migration advice to non-citizens. 95 See also Pillai, “Non-immigrants, Non-aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited” (2013) 39(2) Monash University Law Review 568.

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Future changes to the Constitution and citizenship [4.80] The Commonwealth Government introduced the Constitution Alteration (Establishment of Republic) Bill into the Parliament in 1999, but the Bill did not obtain the necessary majorities96 to support the changes to the Constitution included in the 1999 Referendum. The Bill provided for the removal of the words “subject of the Queen” in s 117 of the Constitution and their replacement with the words “an Australian citizen”.97 In the list of definitions in the Bill, an “Australian citizen” was defined as a person “who is an Australian citizen according to the laws made by the Parliament”. Yet, there was no inclusion of an amendment to s 51 to include an express power over citizenship. It could be argued that the insertion of such a definition implicitly gives the Commonwealth Parliament power to make these laws. On the other hand, Parliament may be satisfied that it has an implied power over citizenship. If the proposal to alter s 117 had been introduced, would it have given the Commonwealth absolute power over the definition of an “Australian citizen”? The judgment of Gibbs J in Pochi v Macphee (1982) 151 CLR 101 is surely relevant here. By giving its own definition of “citizen”, Parliament could not simply expand its power to include people who could not possibly answer that description in the ordinary sense of the word. The February 2000 Report of the Australian Citizenship Council acknowledges the absence of the word “citizenship” and refers to the Commonwealth’s power to make laws with respect to “naturalisation and aliens”. It made no comment, however, about the issues discussed above, nor is there any recommendation to broaden the head of power to make certain the Commonwealth’s power in this area.98 The House of Representatives Legal and Constitutional Affairs Committee organised a round-table on constitutional reform in 2008. One of the sessions of the round-table was devoted to questions of citizenship and

96 Section 128 of the Constitution requires a majority of electors voting in a majority of States, together with a majority of all the electors voting. See also Rubenstein, “Citizenship and the Republic Debate” in Patmore (ed), The Big Makeover: A New Australian Constitution, Labor Essays 2002 (2002). 97 Section 117 of the Constitution is discussed further in Chapter 6 at [6.40]. 98 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 31. The Council did address the constitutional issue of s 44(i) of the Constitution regarding dual citizenship as a basis for disqualification from membership of the Australian Parliament, and supported the recommendation in the Report of the Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution, that further consideration be given by government to the issue of how to more appropriately measure “undivided loyalty to Australia” for intending candidates for Parliament and members of Parliament (pp 75–77). See further discussion at [4.1290].

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examined many of the questions discussed above.99 No specific recommendations followed other than the importance of engaging the greater community in the issues raised by the absence of citizenship in Australia’s Constitution. Any changes in the near future to the Constitution to expressly confirm the Commonwealth’s power over citizenship are thus unlikely and will remain so unless the validity of the Australian Citizenship Act 2007 (Cth) is challenged directly in litigation before the court.

THE PREAMBLE [4.90] A Preamble was added to the to the Australian Citizenship Act 1948 (Cth) in 1994. The Preamble serves an important symbolic purpose. It contains a description of the consequences of citizenship. However, it tells us nothing about the legal consequences of citizenship. This is determined through a myriad of further legislation.100 The current Preamble to the Australian Citizenship Act 2007 (Cth) states: The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations: (a) by pledging loyalty to Australia and its people; and (b) by sharing their democratic beliefs; and (c) by respecting their rights and liberties; and (d) by upholding and obeying the laws of Australia.

The Preamble is not a legal definition of “citizenship”. Certainly it assists in determining in principle some of the consequences of citizenship, but there is nothing else in the Act to explain or expand upon these concepts. Symbolism aside, the Preamble is only of legal value when the words of the statute are unclear, as applied to the subject matter of the Act, or when capable of more than one meaning. In those cases, the Preamble may assist in the interpretation of the statute.101 However, there is little in this Preamble to assist in the interpretation of the content of the Act. In any 99 Australia, House of Representatives, Standing Committee on Legal and Constitutional Affairs, Inquiry into Constitutional Reform, Report (2008). For an extract on “Citizenship and the Protection of Rights in Australia”, Ch 6, see: http://www.aph.gov.au/ parliamentary_business/committees/house_of_representatives_committees?url=/laca/ constitutionalreform/report.htm. 100 See further, Chapter 5 covering all the different legislative forms of distinction between citizens and non-citizens. 101 See also Winckel, “The Contextual Role of a Preamble in Statutory Interpretation” (1999) 23 Melbourne University Law Review 184; and Winckel, “The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution, Past, Present and Future” (LLM thesis, University of Melbourne, 2000) Ch 2.

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event, the High Court has never been called upon to interpret either the Preamble or any light or shadow it may cast on any of the Act’s provisions. The recital of facts in a preamble does not mean the recitals are conclusive evidence of those facts – they are prima facie evidence only.102 The facts stated in this Preamble are not altogether accurate, although there is no doubting their symbolic importance.

“Citizenship represents full and formal membership of the community of the Commonwealth of Australia” [4.100] The above statement is linked to s 26 of the Australian Citizenship Act 2007 (Cth) whereby an Australian citizen is required to state or declare his or her national status as an “Australian citizen”. Yet there is no other statement within the Act directly dealing with the consequences of being defined as an “Australian citizen”. In Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 190, Gaudron J pointed out the lack of such a statement within the Act, stating: Neither the Citizenship Act nor the Migration Act, in terms, make Australian citizenship the exclusive criterion for admission to membership of the community constituting the body politic of Australia. However, given no other criterion is supplied, either by the general law or by statute, and that (as from its amendment in 1984) s 12 of the Migration Act posits the deportation only of persons who are non-citizens, it must be accepted that the intendment of s 12 of the Migration Act, when viewed in the context of the amendments to the Citizenship Act, was that Australian citizenship should be (or perhaps, should become) the criterion for admission to membership of the community constituting the body politic of Australia.

The judgment of Gaudron J came before the Preamble was changed to make this statement. Whether the Preamble would add any strength to her view on this is questionable given the legal significance of preambles. International law recognises citizenship as the legal status of a person who is a formal member of the state103 and s 26 (referred to above) recognises this. “Citizenship” is the word used within domestic forums and international law recognises the right of a state to determine its citizens.104 “Nationality” is the other term used, and this is more common in the identification of citizens outside their state.105 102 Dawson v Commonwealth (1946) 73 CLR 157, cited in Pearce and Geddes, Statutory Interpretation in Australia (4th ed, 1996) at [4.33]. 103 Liechtenstein v Guatamala (Nottebohm Case) Second Phase 1955 ICJ 4 (Judgment 6 April) p 23. 104 Liechtenstein v Guatamala (Nottebohm Case) Second Phase 1955 ICJ 4 (Judgment 6 April) p 23. 105 Often “nationality” is the word used when discussing issues of citizenship at an international level and “citizenship” is used when discussing membership domestically: see further, Rubenstein and Adler, “International Citizenship: The Future of Nationality in a Globalized World” (2000) 7 Indiana Journal of Global Legal Studies 511 and

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The statement about formal membership in the Preamble also alludes to other non-formal levels of membership in the Commonwealth of Australia. These currently include permanent residents of Australia106 who are not formal members of the community, but who enjoy many rights and responsibilities stemming from residing in Australia.107

“Citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, whilst respecting their diversity” [4.110] The above is a statement of aspiration. Citizenship encourages a sense of unity and common links. In its submission to the Joint Standing Committee on Migration’s review of citizenship in 1994, the Department of Immigration and Ethnic Affairs stated that “[t]here are no racial or ethnic barriers or ‘grades’ of citizenship and citizenship is equally available regardless of gender.”108 This refers to citizenship as a formal status and to one’s ability to become a citizen. It does not, however, address the “experience” of citizenship – that is, how a person’s life experience is affected by citizenship.109 However, in practice, this may not necessarily be the case. One of the many themes of citizenship is the tension between citizenship as inclusion and citizenship as exclusion.110 This has also been seen in the discussion around the 2015 amendments to the Act concerning cessation of citizenship. Discussion about the Parliament’s power to introduce these amendments relates back to questions of allegiance, which are related to understandings of the “obligations” of citizenship.111

Rubenstein, “Globalization and Citizenship and Nationality” in Dauvergne (ed), Jurisprudence for an Interconnected Globe (2003). Interestingly, where international law and most Western European states use the term “nationality”, most Eastern European states use the term “citizenship”: see Council of Europe, European Convention on Nationality and Explanatory Report (1997) as cited in Committee on Feminism and International Law, Final Report on Women’s Equality and Nationality in International Law, Report of the Sixty-Ninth Conference of the International Law Association (2000) p 259. 106 Generally, a person will be a “permanent resident” if his or her presence in Australia is not subject to any time limitation under the Migration Act 1958 (Cth). 107 The legislative “rights” are set out in Chapter 5 at [5.210]. 108 Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) p 18 at [2.46]. 109 The Report by the Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (1996) highlighted this difference when it stated that the inquiry “is concerned with ‘citizenship as desirable activity’ where the quality of one’s ‘citizenship’ is a function of one’s interaction with the community and as a result the quality of one’s life experience”: at [2.2], citing Kymlick and Norman, “The Return of the Citizen: A Survey of Recent Work on Citizenship Theory” (1994) 104 Ethics 353. 110 See discussion in Chapter 1 at [1.60] and [1.70] and Chapter 5 at [5.20]. 111 See further discussion at [4.1160].

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“Person granted112 … pledging loyalty to Australia and its people … sharing … democratic beliefs … upholding and obeying the laws of Australia” [4.120] This statement is specific to those who are granted Australian citizenship by conferral.113 Section 28 of the Act says a person who is required to make a pledge of commitment becomes an Australian citizen once they have made that pledge.114 The pledge of commitment is also central to the purpose and content of the Australian citizenship test.115 A number of classes of people are exempt from making a pledge of commitment by virtue of the means by which they apply for citizenship. Individuals who acquire citizenship automatically,116 or who are granted citizenship by descent,117 by adoption in accordance with the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (INT) (Hague Convention) or a bilateral agreement,118 or by resuming Australian citizenship are not required to make the pledge.119 Certain individuals are also exempt. Children under the age of 16, those not able to understand the nature of the application, as well as applicants who were born to former Australian citizens, born in Papua before 16 September 1975, or those who are stateless, do not need to make the pledge.120 Individuals exempt from making the pledge become citizens on the day the Minister makes the decision to grant citizenship.121 The only exception is in the case of a child whose application is made at the same time as his or her parents’. In this case, the child becomes an Australian citizen on the first day on which their parent becomes and Australian citizen.122 Reflecting on the class of applicants required to make the pledge,123 there is a much greater onus on “new Australians” to show their allegiance to Australia. Birth or descent must be regarded as imbuing a person with an 112 Sections 17, 19D, 24 and 30 of the 2007 Act enable the Minister to grant Australian citizenship. 113 Under Div 2 subdiv B of the 2007 Act. 114 The formalities regarding a pledge of commitment are set out in s 27 and Sch 1 of the Act and reg 8 of the Australian Citizenship Regulations 2007 (Cth). The requirement to make the pledge is discussed at [4.920]. 115 The citizenship test is discussed at [4.610]. 116 Under Pt 2 Div 1 of the 2007 Act. 117 Under Pt 2 Div 2 subdiv A of the 2007 Act. 118 Under Pt 2 Div 2 subdiv AA of the 2007 Act. 119 Under Pt 2 Div 2 subdiv C of the 2007 Act. 120 2007 Act, s 26(1). 121 2007 Act, ss 19, 19F, 32 and 28(2). 122 2007 Act, s 28(3) – (4). 123 Which, as discussed, excludes those persons who automatically acquire citizenship, are granted citizenship by descent, intercountry adoption or resume their Australian citizenship.

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inherent loyalty or allegiance to the nation.124 Existing Australian citizens are able to make an affirmation to Australia and its people based on the words of the citizenship pledge, but the affirmation has no legal effect. Affirmation ceremonies were introduced in 1999, as part of the 50th anniversary year of Australian citizenship, to “increase awareness of Australian citizenship, promote community involvement and participation, and help people feel that they belong … [and] build pride in Australians about their citizenship”.125 The ceremony also encourages less of a distinction between “new” and “existing” Australian citizens regarding statements of loyalty and commitment. The pledge of commitment in Sch 1 of the Act includes a version with and without a reference to God. The pledge reflects the Preamble’s principles: From this time forward (under God) I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and responsibilities I respect, and whose laws I will uphold and obey.

While making a pledge is a condition to becoming a citizen by conferral under the Act,126 breach of its terms does not invalidate one’s citizenship. For instance, people found to have broken the law do not lose their citizenship.127 There are, however, limited circumstances in which a person may be deprived of his or her citizenship.128 124 The history of this distinction is discussed in Rubenstein, ““From this Time Forward … I Pledge my Loyalty to Australia”: Loyalty, Citizenship and Constitutional Law in Australia” (ANU College of Law Research Paper No 08-09, 2007). For a discussion of multiple loyalties, see Neoh, Rothwell and Rubenstein, “The Curious Case of Stern Hu” in Jenkins, Nolan and Rubenstein (eds), Allegiance and Identity in a Globalised World (2014). 125 See Department of Immigration and Citizenship, Australian Citizenship Ceremonies Code (2011) Ch 15. 126 Section 27 of the 2007 Act requires the pledge to be made in accordance with the arrangements prescribed by registration and before the Minister or an authorised person. The pledge must be made after the Minister’s decision to approve the citizenship application: s 26(2). 127 However, some of the rights of citizenship, such as voting, are affected if a person “is serving a sentence of 3 years or longer” or “has been convicted of treason or treachery and has not been pardoned”: see Commonwealth Electoral Act 1918 (Cth), s 93(8), (8AA). Note that the former applies to a person serving a sentence, not to all people found guilty. See also Morgan and Graycar, “Disabling Citizenship: Civil Death for Women in the 1990’s” (1995) 17 Adelaide Law Review 49. More broadly on citizenship and voting, see Rubenstein, “Can the Right to Vote be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002” in Chesterman and Philips (eds), Selective Democracy: Race, Gender and the Australian Vote (2003) and Rubenstein and LenaghMaguire, “Thick and Thin Citizenship as Measures of Australian Democracy” in Patmore and Rubenstein (eds), Law and Democracy: Contemporary Questions (2014) pp 27–43. 128 See below at [4.1160].

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The use of the term “loyalty” is interesting. The Preamble uses “loyalty to Australia” and this is used within the content of the Preamble. Yet the title of the pledge set out in Sch 1 to the Act is “Pledge of Commitment as a Citizen of the Commonwealth of Australia”. Is there a difference between the terms “loyalty” and “commitment”? “Loyalty” is defined in the Shorter Oxford English Dictionary as: 1. Faithful adherence to one’s promise, oath, word etc; conjugal fidelity. 2. Faithful adherence to the sovereign or lawful government. Also now enthusiastic devotion to the sovereign’s person and family. 3. Legality (of marriage).

The notion of being faithful to one’s country has connotations, particularly with its link to fidelity, of being loyal to one country only. The connotations naturally flow on to any discussion of dual citizenship, and can be seen in the 2015 amendments to the Act that include new cessation provisions for dual citizens, and not only dual citizens by grant, but also dual citizens who have been Australian citizens at birth.129 “Commitment” is defined in the Shorter Oxford English Dictionary as “[t]he action of entrusting, giving in charge, or commending.” To invest with trust is to create a relationship of responsibility. Committing oneself to Australia is putting oneself in a special relationship of acting in the best interests of the country. It has less of a sense of sole allegiance – one can be responsible to, or committed to, more than one country without undermining either responsibility or commitment. The omission of the word “allegiance” is significant. Gummow and Hayne JJ looked at the significance of “allegiance” in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 in assessing the value of British subject status. They highlight the fact that the notion of “allegiance to the Imperial Crown”130 disappeared with the 1948 Act and they cite Professor Clive Parry, who stated: The concept of allegiance, which had been the foundation of the status of a subject, was not imported into the rules governing local citizenship but was altogether swept away.131

However, it is questionable whether this is really the case. The former s 17 of the Australian Citizenship Act 1948 (Cth), demanding loss of Australian citizenship upon the acquisition of a new citizenship, was part of the Act from its inception. That section highlighted the importance of allegiance from the beginnings of Australian citizenship. Further, the High Court has found that allegiance to a foreign sovereign is the defining characteristic of 129 See the discussion on dual citizenship below at [4.1290]. 130 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [151]. 131 See Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland (1957) p 92 (footnotes omitted), cited by Gummow and Hayne JJ in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [151].

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alienage under s 51(xix) of the Constitution.132 In Singh v Commonwealth (2004) 222 CLR 322 at 395, Gummow, Hayne and Heydon JJ pointed out that, over time, “there was one feature about the use of the word [‘alien’] that was constant: it was that the alien ‘belonged to another’. Often that was expressed by reference to the concept of allegiance”. In its Report, the Australian Citizenship Council considered whether the current Preamble to the Act remains appropriate or whether it should be modified.133 The Council concluded that the Preamble conveys “clearly and with enviable simplicity of prose a wealth of information about Australian citizenship”.134 While some submissions called for the incorporation in the Preamble of statements on responsibilities and privileges attached to citizenship,135 the Council did not support this and recommended that the Preamble remain unchanged.136

EVOLUTION OF AUSTRALIAN CITIZENSHIP UNDER THE AUSTRALIAN CITIZENSHIP ACT [4.130] Australian citizenship became a legal status at the commencement of the Nationality and Citizenship Act 1948 (Cth)137 on 26 January 1949. Until then, the national status of members of the Australian community was “British subject”.138 This status was shared by members of various Commonwealth countries, and it is likened to a supra-national status.139 This section considers the status of British subjects under the Act, and the evolution of the statutory concept of Australian citizenship. The different ways of being recognised as an Australian citizen reflect our evolving 132 See Singh v Commonwealth (2004) 222 CLR 322 and Koroitamana v Commonwealth (2006) 227 CLR 31. 133 See Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 80. 134 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 80. 135 Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994). The Report recommended that the Preamble be revised and expanded to include the rights and obligations of citizenship: pp 98–99 at [4.61]. 136 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 81. This recommendation was accepted by the government in Australian Citizenship … A Common Bond, Government response to the Report of the Australian Citizenship Council (May 2001) p 28. 137 The Nationality and Citizenship Act 1948 (Cth) was renamed the Australian Citizenship Act 1948 (Cth) in 1973. 138 See previous discussion in Chapter 3 at [3.110]. 139 Kirby J refers to “this supranational concept of British nationality surviv[ing] well into the latter part of the twentieth century. It did so both in popular ideology and, more relevantly for present purposes, in the express status recognised by Australian law”: see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [268].

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understanding of the meaning of “citizenship” itself.140 Some of the historical material provided in these sections also illustrates the nature of citizenship– in particular, the preference given to British over non-British citizens in the acquisition of citizenship.141

British subjects and the Australian Citizenship Act [4.140] Until 26 January 1948, the status of “British subject” was the only national status in Australia. When the 1948 Act came into force, it remained a national status. From that time until 1 May 1987,142 Australians were both “Australian citizens” and “British subjects”. This was consistent with the scheme devised after the February 1947 meeting in London of “experts” from the British Commonwealth who agreed upon a system of nationality and citizenship. The report stated: The essential features of such a system are that each of the countries shall by its legislation determine who are its citizens, shall declare those citizens to be British subjects and shall recognise as British subjects the citizens of the other countries.143

This means that people in Australia who were British subjects by virtue of being members of other Commonwealth countries were also recognised as British subjects in Australia, even if they were not Australian citizens. Some British subjects, however, automatically became Australian citizens on 26 January 1949 by virtue of the Act.144 This meant that there were two national statuses in Australia until 1987 with both symbolic and practical consequences. David Dutton argues that “the nationalist expectation of the coincidence of citizenship and nationality – of membership and identity – was not fully realised in Australia”145 until we became solely Australian citizens. “[P]rior to that time citizenship and nationality were never singular notions in Australia: they were split between Australian and Britain”, he maintains.146 In practical terms, it meant that many British subjects resident in Australia shared the rights and responsibilities linked to citizenship. In fact, much 140 This has already been raised in Chapter 1 at [1.10]. 141 Jordens discusses this discrimination also in “The Legal and Non-legal Aspects of Immigration and Citizenship” in Rubenstein (ed), Individual, Community, Nation: 50 years of Australian Citizenship (2000) pp 85–87. See also Jordens, Alien to Citizen: Settling Migrants in Australia, 1945–1975 (1997). 142 The term was removed by the Australian Citizenship Amendment Act 1984 (Cth), which commenced on 1 May 1987. 143 Report of British Commonwealth Conference of Nationality and Citizenship (NAA: A467, 82/SF40/1, 26 February 1947), as cited in Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 14. 144 See below at [4.200]. 145 Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 17. 146 Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 17.

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of the legislation bestowing these rights and responsibilities did so for British subjects, as well as for Australian citizens.147 Section 51 of the Australian Citizenship Act 1948 (Cth), now repealed, specifically provided that a reference in any other Commonwealth law to a British subject was to be read as including a reference to an Australian citizen and to any other person who, under the Act, had the status of a British subject, or had the status of a British subject without citizenship.148 When British subject status was removed, however, those British subjects who did not become Australian citizens lost their “privileged” status.149 This privileged status was central to the case of Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. The High Court held that from the commencement of the Nationality and Citizenship Act 1948 (Cth), British subjects no longer had a special status. This meant that a long-term British migrant with full voting and other rights could validly be deported as an alien as a result of being convicted of criminal offences.150 The court (at [37]) quoted the reasoning of the majority in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 184, where it was said: The transition from Empire to Commonwealth and the emergence of Australia and other Dominions as independent sovereign nations within the Commonwealth inevitably changed the nature of the relationship between the United Kingdom and its former colonies and rendered obsolete notions of an indivisible Crown. A separate Australian citizenship was established by the Nationality and Citizenship Act 1948 (Cth), now known as the Australian Citizenship Act 1948. … The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject or a subject of the Queen by reason of his birth in another country could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an “alien”.

As discussed at [4.40] above, Shaw was the last in a line of cases concerning the constitutional status of British subjects that produced much disagreement among members of the High Court. Presumably, the maintenance of the status of British subject confused the meaning of the term “alien”. It is interesting to examine the differing and evolving levels of membership of the Australian community to understand the context of this disagreement, and the reasons for the High Court’s ultimate conclusion in Shaw. Various levels of formal membership of the Australian community came into effect with the enactment of the 1948 Act. They included Australian 147 See further discussion in Chapter 5 at [5.210] and [5.140]. 148 Section 51 had two forms: it appeared in its first guise in the 1948 Act and then it was repealed and replaced by Act No 22 of 1969. These changes are linked to the changes to the meaning of “British subject”, as explained further below at [4.140]. 149 Those British subjects who had registered on the electoral roll were entitled to maintain their registration: see Commonwealth Electoral Act 1918 (Cth) s 93(1). 150 See discussion above at [4.40].

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citizens, British subjects, British subjects without citizenship, non-aliens and aliens. This section explains the nature of British subjects, British subjects without citizenship, non-aliens and aliens. The next section will explain the definition of “Australian citizens”. Aliens [4.150] From 26 January 1949 until 20 February 1973, s 5 of the Australian Citizenship Act 1948 (Cth) defined an “alien” as a person who is not a British subject, an Irish citizen or a protected person. From 1973 until 1 May 1987, the wording was changed to reflect the changed attribution of British subject to “a person who does not have the status of a British subject and is not an Irish citizen or a protected person”. The term “British subject” was removed from the Act in 1987 and the definition of “alien” was also removed.151 These definitions have been particularly relevant to those British subjects who did not become Australian citizens and have been subject to deportation orders.152 Non-aliens and protected persons [4.160] Irish citizens153 and protected persons154 were neither Australian citizens nor British subjects, yet were non-aliens.155 A table setting out the definition of “protected persons”, as defined in the Australian Citizenship Regulations 2007 (Cth), can be found in the Appendix. 151 According to the Australian Citizenship Amendment Act 1984 (Cth) (Act No 129), which commenced on 1 May 1987. 152 See discussion above at [4.40] and below at [4.190]. 153 For an explanation of the special provisions that were made for Irish citizens, see below at [4.170]. See also Kenny v Minister for Immigration and Ethnic Affairs (1993) 42 FCR 330 at 339–344 where Gummow J goes into detail about the “Irish situation”. The applicant, an Irish citizen, had open to him the possibility of registering as an Australian citizen under s 12 of the 1948 Act or retaining his British subject status under s 8: at 342–344. A new s 8 was substituted by the Citizenship Act 1969 (Cth) and, after amendment by s 29 of the Australian Citizenship Act 1973 (Cth), s 8 of the 1948 Act read: “[A]n Irish citizen who immediately before 26 January 1949 was also a British subject has the status of British subject if he has … given a notice in accordance with s 8(1) of the Nationality and Citizenship Act … or gives notice to an authorised officer claiming to be entitled to the status of British subject on the ground he is or has been in the service of the Australian government; a holder of an Australia passport or has associations with Australia by way of descent or residence”. Furthermore, where s 7 applied (it applied to the UK), Irish citizens were enabled to have the status of British subjects. Part II of the 1948 Act (ie ss 7, 8 and 9) was repealed in 1984 with effect on 1 May 1987. Thus, there were no longer any provisions that would attribute the status of British subject to Irish citizens in the applicant’s position. The legal position was, therefore, that the applicant was an alien, subject only to the elective provisions in Australia which, if availed of, would have permitted the applicant to retain his former allegiance. Gummow J (at 344) stated that Pochi v Macphee (1982) 151 CLR 101 supported the position that an alien immigrant who has not been naturalised did not cease to be an alien by absorption into the Australian community. 154 From 26 January 1949 until 8 October 1958, protected persons were defined in s 5 as prescribed classes of persons under the protection of the government of any part of His Majesty’s dominions and, from 8 October 1958 until 1 May 1987, by s 5(3A) as persons

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The Supreme Court of South Australia considered the status of “protected persons” in Re Ho (1975) 10 SASR 250. Ho sought exemption from the requirement of the Supreme Court Admission Rules 1955-1975 (SA) that he be a British subject as a prerequisite for his admission. The court was empowered to exempt a person from compliance with any of the rules. Ho was born in Brunei, a British Protectorate. He was not a citizen of another country and had been issued with a passport by the British Commissioner for the State of Brunei, which recorded his status as “British Protected Person, State of Brunei”. The court looked at s 5(1) of the Australian Citizenship Act 1948-1973 (Cth) and noted that, unless the contrary intention appears, “alien” means a person who does not have the status of a British subject and is not an Irish citizen or protected person.156 Regulation 5(2)(b) of the Citizenship Regulations in force at the time of the case made a British protected person under the law of the United Kingdom a protected person within the meaning of s 5(3A), and not an alien. Brunei is a protected state mentioned in the Second Schedule to the British Protectorates, Protected States and Protected Persons Order in Council and so, by virtue of his protected status in the United Kingdom, he was a protected person under the Australian Act. But what did that status do in this situation? The court stated that the “probable result … is that he is neither a British subject nor, for many purposes anyhow, an alien. He is, as his Counsel … said, in a grey area”.157 The court decided to use its powers to dispense with the requirements in Ho’s favour, concentrating upon Ho owing allegiance to the Queen while present in Australia. It was therefore unnecessary to decide whether the “protected person” status equated with “British subject” status as the court could dispense with the “British subject” requirement. The case highlights the significance of a person’s status in

declared by the regulations to be, for the purposes of this Act, under the protection of either the Australian Government or of the government of a country, or part of a country, to which s 7 applies. Michael Pryles explains that generally these persons comprised inhabitants of Territories that were administered by a State but which did not become part of the domestic territory of the administering State: see Pryles, Australian Citizenship Law (1981) pp 58, 59–62. 155 By virtue of the definition of “alien” in s 5 which was in effect until 1 May 1987. 156 Section 5 was also raised in Re Wiggan and Minister for Immigration and Ethnic Affairs (unreported, Fed Ct of Aust, Forster J, No WAG 102 of 1987, 24 March 1988), where the court endorsed Pochi v Macphee (1982) 151 CLR 101 per Gibbs CJ, stating that an alien remains an alien until he becomes a citizen, and no amount of absorption into the Australian community will remove his alien status, whatever effect it may have on his status as an immigrant. Furthermore, Forster J commented (at [20]) that the definition in s 5 of the 1948 Act is irrelevant: “If an alien remains an alien until he becomes a citizen and if, as I think, his status as an immigrant whether absorbed or not is now irrelevant for the purposes of deportation, the only question remaining is whether or not the applicant was at relevant times and is an alien for the purposes of the Migration Act whatever his status may have been for the purposes of any other Act.” 157 Re Ho (1975) 10 SASR 250 at 254.

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other legislation. Chapter 5 of this book focuses on the different pieces of federal legislation that discriminate upon the grounds of one’s formal legal status. British subjects [4.170] There were various categories of people entitled to the status of British subject. Those persons born in Australia158 who became Australian citizens also became British subjects. Then there were those persons declared by s 7 to be citizens of other countries but recognised as British subjects.159 There was also provision in the Regulations from 1949-1987 for additional countries to be added to s 7. A table listing those countries added by the Regulations is in the Appendix. Provision was also made in s 8 for another category of British subject – Irish citizens who had given notice of a desire to retain their status as British subjects if they possessed such a status immediately prior to the operation of the Act.160 Where Irish 158 “Australia” included the Australian Territories. Persons born in the Territories of Norfolk Island and Papua were British subjects before the enactment of the 1948 Act. These people automatically became Australian citizens under the 1948 Act on 26 January 1949. However, the status of Papuan-born people evolved differently to other British subjects: see discussion at [4.740] of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 and Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694 where the citizenship status of people born in Papua came under scrutiny. 159 From 11 May 1955 until 20 February 1973 this included the United Kingdom and Colonies, Canada, New Zealand, the Union of South Africa, India, Pakistan, Ceylon, the Federation of Rhodesia and Nyasaland, Ghana, the Federation of Malaya, the State of Singapore and any other country declared by the Regulations to be a country within the Commonwealth of Nations to which s 7 applied. From 20 February 1973 until 1 June 1974, the following countries were added to s 7: Barbados, Republic of Botswana, Republic of Cyprus, The Gambia, Republic of Ghana, Guyana, Republic of India, Jamaica, Republic of Kenya, Kingdom of Lesotho, Republic of Malawi, Malta, Mauritius, Republic of Nauru, Federal Republic of Nigeria, Sierra Leone, Republic of Singapore, Republic of South Africa, United Republic of Tanzania, Trinidad and Tobago, Uganda and the Republic of Zambia. Then from 1 June 1974 until 1 May 1987, when British subject status was removed, the following countries were added to s 7: Commonwealth of the Bahamas, People’s Republic of Bangladesh, Fiji, Republic of Sri Lanka, Kingdom of Swaziland, and Independent State of Western Somoa. During that period Ceylon, Pakistan and the Republic of South Africa were removed from the definition. 160 Irish citizens remained British subjects in Australia if they had given notice prior to 20 February 1973 and the grounds upon which they did so were if they had been in service under an Australian government, or held an Australian passport issued by an Australian government or had associations by way of descent, residence or otherwise with Australia or New Guinea. From 1973 until 1987 they could only give notice if they fulfilled one or more of the conditions set out in s 8(1)(b) that the applicant has: (i) been in service under an Australian government; (ii) held an Australian passport; or (iii) had associations by descent, residence or otherwise with Australia, Papua or New Guinea or subsequently had such associations with Australia. See also Kenny v Minister for Immigration and Ethnic Affairs (1993) 42 FCR 330 at 342 where the applicant did not avail himself of the service to Australian governments (by his service in the RAN) or the residence in Australia provisions contained in s 8(1)(a) and (c) and he “lost” any claim to citizenship by the change in the Act in 1987 whereby he was recognised as an alien

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citizens had given notice in other Commonwealth countries under a provision similar to s 8, they could also be treated as British subjects.161 South Africa and Pakistan were on the s 7 list of Commonwealth countries until 1 December 1973.162 Until that date, citizens of those countries were recognised as British subjects. After that date they were removed from s 7.163 Special provision was also made for those citizens of Pakistan and the Republic of South Africa who were neither Australian citizens nor citizens of another Commonwealth country to which s 7 applied. If they were ordinarily resident in Australia on 1 December 1973, they and their children under the age of 16 were treated as British subjects for two years. Pryles comments that this provision presumably intended to afford these people a reasonable period of time in which to apply for Australian citizenship while remaining British subjects.164 In making the Second Reading speech on the Bill in Parliament, Mr Grassby explained: It is, however, recognised that citizens of these countries who have settled in Australia should be able to keep their present status under our law for a transitional period of 2 years during which they will be encouraged to become Australian citizens. Otherwise, for example, a person in the Public Service might suddenly find he can no longer lawfully retain his appointment because the Public Service Act allows permanent appointment only of people who have the status of British subjects.165

Another country with special provisions was Burma. Burma ceased to be a member of the British Commonwealth on 4 January 1948. At that time, British common law regarding British subject status applied in Australia because the Act had not yet begun to operate.166 Only those Burmese inhabitants who remained in Burma on and after 4 January 1948 ceased to be British subjects automatically by reason of Burma’s departure from the British Commonwealth. Thus, a person born in Burma, but resident in Australia, may have been regarded as a British subject on 26 January 1949 and would have acquired citizenship automatically under the transitional provisions.167 The United Kingdom Burma Independence Act 1947, however, took away British subject status for certain Burmese people. Australia and able to be deported from Australia. Interestingly, in his discussion of the “alien” status of Kenny, Gummow J did not refer to the “non-alien” status of Irish citizens by virtue of s 5 of the 1948 Act, which existed until its repeal in 1987: see above at [4.160]. 161 Section 8(3) from 1949–1973 and s 8(2) from 1973–1987. This was also referred to in Kenny v Minister for Immigration and Ethnic Affairs (1993) 43 FCR 330 at 342. 162 Citizenship Policy (Cth) Ch 23 p 232. 163 Through ss 5 and 6 of Act No 99 of 1973, proclaimed on 1 December 1973. 164 Pryles, Australian Citizenship Law (1981) p 49. 165 Australia, House of Representatives, Debates (11 April 1973) p 1314 (Al Grassby). 166 See discussion in Pryles, Australian Citizenship Law (1981) p 55, where he states: “At common law a person resident in territory that ceased to be part of the dominions of the Crown lost his status as a British subject.” Both Pryles, (pp 55–56) and Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland (1957) pp 555–557 look at the Nationality and Citizenship (Burmese) Act 1950 (Cth). 167 See below at [4.200].

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dealt with the difference in the laws with the introduction of the Nationality and Citizenship (Burmese) Act 1950 (Cth), which came into force on 29 July 1950.168 People who had ceased to be British subjects under United Kingdom law became aliens under Australian law (from 29 July 1950) unless they exercised the right of election to remain British subjects under either the United Kingdom or Australian Act, or were citizens of one of the other countries of the British Commonwealth. British subjects without citizenship [4.180] Curiously, s 26 of the 1948 Act also provided for the status of “British subject without citizenship”. These people are not aliens, yet they are not Australian citizens, nor are they simply British subjects. In essence, it provides for the status of British subject for those who were not so by virtue of Australian citizenship, nor through citizenship of another Commonwealth country, yet were British subjects immediately before 26 January 1949. Entitlement to this status depended on the definition of “British subject” under the previous Nationality and Citizenship Act 1920 (Cth).169 The status of British subject immediately before the commencement of the Act was considered by the High Court in Wong Man On v Commonwealth (1952) 86 CLR 125. The question arose in the application of the War Time Removals Act 1949 (Cth), which allowed for the deportation of people who entered Australia during hostitilies and who were aliens. While Wong Man On had entered Australia during the hostilities, he denied that he fell within the definition of “alien”. He had been born in New Guinea on 15 January 1916, at that time a German colony under occupation by Australian troops. As Pryles points out, the court actually misapplied s 6 of the Nationality and Citizenship Act 1920 (Cth) by failing to acknowledge that the Act only applied from the date of its operation, which was after the plaintiff’s birth. Theoretically, the common law should have applied, but the outcome would have been the same; he was not born in a Dominion owing allegiance to His Majesty and nothing happened to him later to enable him to claim that status.170 People who were British subjects without citizenship lost that status upon becoming either Australian citizens or citizens of a country under s 7 of the 1948 Act, or if they became Irish citizens or were aliens.171 Presumably, this status was intended to afford these people a reasonable period of time in which to apply for Australian citizenship while remaining British subjects. Another category of people entitled to British 168 It was later repealed in 1981. 169 See the discussion of this Act in Chapter 3 at [3.10] and [3.20] and [3.40] Pryles also discusses the application of the British Nationality and Status of Aliens Act 1914 (UK) and its possible application by paramount force to Australia. See Pryles, Australian Citizenship Law (1981) pp 50–52. 170 Pryles, Australian Citizenship Law (1981) pp 50–51. 171 1948 Act, s 26(6).

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subject status without citizenship were those who were born after 26 January 1948 and whose British subject status was granted by virtue of a law of another country.172 Finally, s 30(1) of the 1948 Act provided for children of persons who ceased to be British subjects under s 20(1) of the Nationality Act 1920 (Cth) and who consequently lost their British subject status. These people were entitled to apply for British subject status within a year of the commencement of the Act or by the time the person turned 18, or within such period of time allowed by the Minister.173 Special provisions for marriage also existed under s 26 of the 1948 Act and the “British subject without citizenship” category. Section 26(3) provided that when a British subject without citizenship married a woman who was not, or did not, possess the status of British subject, the woman would not become a British subject by reason of the marriage. Alternatively, s 26(4) provided that a woman who was a British subject without citizenship, and who married an alien or an Irish citizen, did not cease to be a British subject by virtue of the marriage. Alien wives of British subjects without citizenship were entitled under s 26A to apply to the Minister to be registered as British subjects, as long as they took out an oath of allegiance, or an affirmation of allegiance in accordance with the Act. Like other British subjects without citizenship, they lost that status on becoming an Australian citizen or a citizen of a country to which s 7 of the Act applied.174 Similarly, in this section, women who were recognised as British subjects in s 7 countries, but were not citizens of those countries, were entitled to be recognised as British subjects without citizenship.175 As stated above, the retention of the status of British subject was consistent with the principles agreed at the British Commonwealth Conference of Nationality and Citizenship176 for the adoption of the scheme of legislation combining citizenship of independent member countries of the Commonwealth with the maintenance of the common status of British subject throughout the Commonwealth. It was also consistent with the identity of Australians at that time. In fact, when the Act was introduced into Parliament, it was attacked by members of the Liberal and Country Party Opposition as a “socialist plot” designed to break Australia’s ties with Britain and to “liquidate the Empire”.177 There was a strong desire to maintain an identity as a member of the British Empire. 172 1948 Act, s 26(5). 173 1948 Act, s 30(2). 174 1948 Act, s 26A(3). 175 1948 Act, s 26A(4). 176 Report of British Commonwealth Conference of Nationality and Citizenship, (NAA: A467, 82/SF40/1, 26 February 1947). 177 See Irving, “Citizenship Before 1949” in Rubenstein (ed), Individual, Community, Nation: 50 years of Australian Citizenship (2000) and further discussion in Chapter 3 at [3.120].

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Removal of British subject status [4.190] The term “British subject” was removed from the 1948 Act in 1987178 and the definition of “alien” was also removed. The Ministerial Statement on Australian Citizenship stated that “Australia is now the only country in the world179 to continue to use the concept of British subject status in preference to its own nationality … [I]t is anomalous that the Australian Citizenship Act provides for a status of British subject for Australian purposes”.180 Moreover, in the debate within Hansard, there is much discussion about the need to eliminate discrimination in favour of a British background: Its purpose is simply to provide equality under the law to all migrants from any land. So it is not a matter of discriminating against the British; it is a matter of removing discrimination against migrants who are non-British.181

Interestingly, there was no single comprehensive amendment in the legislation of all references to “British subject” to “Australian citizen”. Instead, the amendments were implemented by various Acts passed in 1984–1985.182 It appears that a consequence of the removal of the term “British subject” from the 1948 Act is that all people without Australian citizenship status thus became aliens. Two early High Court cases dealing with the definition of “aliens”, Pochi v Macphee (1982) 151 CLR 101 and Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, found this to be the case. Mr Pochi was an Italian citizen and clearly defined by the Act as an “alien”. He tried to argue that the Act was invalid in the way it defined “aliens” by reference to the Constitution.183 Mr Nolan was a British subject who, for part of his life in Australia, had not been an alien but, by virtue of the amendment to the Act in 1984, taking effect in 1987, the court held that he had, as a consequence, become an alien. The court reversed its view in the case of Re Patterson; Ex parte Taylor (2001) 207 CLR 391, in which the majority of the court held that British subjects in 178 According to the Australian Citizenship Amendment Act 1984 (Cth) (Act No 129), which commenced on 1 May 1987. 179 The status of British subject was, for the purposes of British law, withdrawn from Australian citizens by the British Nationality Act 1981 (UK) cl 61 s 11(1). The section gave British subject status to citizens of the United Kingdom and Colonies with a right of abode in the United Kingdom. 180 Australia, House of Representatives, Debates (Ministerial Statement on Australian Citizenship, Minister for Immigration and Ethnic Affairs, 6 May 1982) p 2358. 181 Australia, House of Representatives, Debates (Minister for Immigration and Ethnic Affairs, 2 May 1984) p 1665. 182 For instance, the Public Service Reform Act 1984 (Cth) Sch 6 removed the “British subject” requirement from the Public Service Act and other public service Acts, and the Statute Law (Miscellaneous Provisions) Acts (Nos 1 and 2) 1985 (Cth) amended references to “British subject” in various Acts. Note, however, that British subjects who were on the electoral roll before 1984 were entitled to remain there by virtue of ss 93 – 97 of the Commonwealth Electoral Act 1918. See further discussion in Chapter 6 at [6.170]. 183 See above at [4.40].

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Australia who were non-aliens before 1987 were still non-aliens.184 However, Nolan was again upheld in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, where the High Court upheld the constitutional validity of legislation authorising the cancellation of Mr Shaw’s visa because, after being convicted of a number of criminal offences, he did not pass a character test. This was the case even though he was born in the United Kingdom in 1972 and had arrived in Australia in 1974 with a permanent entry permit. In Kenny v Minister for Immigration and Ethnic Affairs (1993) 42 FCR 330, the applicant had open to him the possibility of registering as an Australian citizen under s 12 of the 1948 Act or retaining his British subject status under s 8, but he did not take up that entitlement. Part II of the Australian Citizenship Act 1948 (Cth), containing ss 7, 8 and 9, was repealed in 1984 with effect on 1 May 1987. Thus, there ceased to be any provisions attributing to Irish citizens who were in the applicant’s position any of the characteristics of the status of British subject. From that time on the applicant was an alien, subject only to the elective provisions in Australia that, if availed of, would have permitted him to retain his former allegiance. Thus, the introduction of the Australian Citizenship Act 1948 (Cth) in 1949 did not provide for a uniform approach to membership of the Australian community.185 The legacy continues to this day.

Who is recognised as an Australian citizen? [4.200] The 1948 Act provided a definition of an “Australian citizen” but it only applied to people born after the commencement of the Act on 26 January 1949. People born before that date have to refer to the now-repealed transitional provisions to determine their status. Even for people born on or after 26 January 1949, the provisions of the current Act do not necessarily inform individuals of their status. The law that will apply to a person depends upon the law that was in force when that person automatically became a citizen or applied for Australian citizenship.186 This involves looking at amendments to the 1948 Act and the 2007 Act because the entitlements to citizenship have changed since the status was introduced in 1948. 184 See discussion above at [4.40]. 185 See earlier discussion in Chapters 1 and 3 regarding differing notions of membership. For research based on records in the Australian Archives regarding the treatment of aliens in that period, see also, Jordens, Alien to Citizen: Settling Migrants in Australia, 1945–1975 (1997). 186 The Department of Immigration and Border Protection keeps a master record of the acquisition of Australian citizenship. These records are held on the Integrated Client Services Environment (ICSE). Records of persons who acquired citizenship by birth in Australia are not normally included. However, records of conferrals of Australian citizenship are kept. The Australian Citizenship Instructions contain instructions for departmental officers regarding registration of details on ICSE.

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Under the current 2007 Act, there are two different ways of becoming an Australian citizen: automatically or by application.187 First, an individual automatically becomes an Australian citizen by birth, adoption or abandonment in Australia.188 Second, an individual may apply for Australian citizenship by descent, if adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral agreement, if eligible for a grant of citizenship by conferral, or when resuming his or her Australian citizenship.189 Note that individuals who were citizens under the 1948 Act immediately before the commencement of the 2007 Act, and who have not ceased to be citizens under the 2007 Act, are taken to be Australian citizens under the 2007 Act.190 The 2007 Act was a complete restructure of the 1948 Act, in line with the recommendations contained in the Australian Citizenship Council’s Report, Australian Citizenship for a New Century, to tidy up the 1948 Act “so it is logically organized, numbered and consistent, with relevant matters dealt with together, and ensuring the balance of matters dealt with between the Act and the Regulations conforms to modern standards”.191 The terminology of the Act was changed, moving away from concepts of “citizenship by birth, adoption or descent” to the “automatic acquisition of Australian citizenship” and from “citizenship by grant” to “acquisition of Australian citizenship by application”. Although citizenship by descent was in practice always by application, rather than being automatic, the 2007 Act now clearly delineates it as such by separating descent from the automatic categories of citizenship by birth or adoption. Despite the structural overhaul, few substantive changes were made at the time of the introduction of the 2007 Act.192 Importantly, the fundamental principle that an individual’s entitlement to Australian citizenship is governed by the Act that was in force at the time of that individual’s birth or application (as relevant) remains unchanged. For example, if an individual born in 2005, before the commencement of the current Act, was a citizen by birth, she or he would have fulfilled the requirements of the 1948 Act in force on the day she or he was born. However, if that individual did not automatically become a citizen at 187 Citizenship by application is discussed at [4.370]. 188 See 2007 Act, Pt 2 Div 1. 189 See 2007 Act, Pt 2 Div 2. 190 2007 Act, s 4. 191 Australian Citizenship Council, Australian Citizenship for a New Century (2000). 192 Notable changes to the last version of the 1948 Act include the introduction of a framework for the collection, storage and use of personal information, heightened security measures, changes to residency requirements, the removal of age limits for applications of citizenship by descent, the creation of an avenue for people adopted overseas to become Australian citizens, the addition of s 21(6) allowing children of parents who lost their citizenship under the former s 17 of the 1948 Act to apply for citizenship, and s 21(7) allowing citizenship by conferral for some individuals born in Papua.

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birth and was to apply for Australian citizenship today, she or he would apply under the provisions of the current Act governing citizenship by application. Sir Ninian Stephen commented in 1993 that the Act should “as a minimum, spell out our own understanding as citizens of our nation and tell us who are our fellow citizens”.193 The 2007 Act, like its predecessors, does not directly achieve this because it does not “contain a history of the ways Australian citizenship could be acquired in the past which would allow those whose citizenship originates in provisions not currently shown in the Act to be aware of those origins”.194 In line with a recommendation by the Australian Citizenship Council, a Reader’s Guide195 was produced to accompany the 2007 Act, with the aim of making the legislation more accessible. It contains a summary of the ways in which citizenship could be automatically acquired or lost from 26 January 1949 to 30 June 2007, before the commencement of the current Act. A number of amendments to the Act have been made since the restructure of the Act in 2007. For example, the introduction of the citizenship test in 2007, the 2009 addition of a permanent residency requirement into s 21(5) and changes to the intercountry adoption provisions and grounds for loss of citizenship in 2015. These changes are discussed in this chapter. A number of additional significant amendments to the 2007 Act were proposed in the Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth), but the Bill lapsed due to the 2016 federal election. Following the structure of the current Act, section [4.240] of this chapter will examine each of the circumstances in which citizenship is (and was historically) acquired automatically. Section [4.370] will then examine the acquisition of Australian citizenship by application, as well the historical predecessors of this concept. First, however, section [4.210] will outline the policy instruments that guide the application of the Act in practice.

CITIZENSHIP POLICY [4.210] The Department of Imigration and Border Protection’s Citizenship Policy document contains policy guidance in relation to the 2007 Act.196 The Citizenship Policy guides decision-makers in the 193 Sir Ninian Stephen, “Issues in Citizenship”, Deakin Lecture, University of Melbourne (26 August 1993). This was presented before he became Chair of the Australian Citizenship Council. On Sir Ninian’s own work in the area of citizenship, see Rubenstein, “Citizenship Council” in McCormack and Saunders (eds), Sir Ninian Stephen: A Tribute (2007). 194 Department of Immigration and Citizenship, Readers Guide – Australian Citizenship Act 2007 (2007) Ch 1: https://www.yumpu.com/en/document/view/26297513/readersguide-australian-citizenship-act-2007. 195 Department of Immigration and Citizenship, Readers Guide – Australian Citizenship Act 2007 (2007) Ch 1. 196 See: https://www.border.gov.au/Citizenship/Documents/acis-june-2016.pdf.

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interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (Cth). The Citizenship Policy was published in 2016 to replace the policy guidance previously provided in the form of the Australian Citizenship Instructions. From 1 June 2016, the Australian Citizenship Instructions detail the citizenship operational instructions, rather than the Department’s policy.197 References to the Citizenship Policy are made thoughout this chapter to assist with an explanation of the operation of the Act in practice. The Citizenship Policy provides guidance on most provisions in the Act. However, policy is updated on a regular basis, so it is important that readers (and citizenship applicants) refer to the most up-to-date version.

Policy and decision-making [4.220] As noted in the Citizenship Policy itself, policy cannot constrain the exercise of delegated powers under the Act or the Regulations.198 Thus, while the policy provides valuable pointers to intending applicants, policy documents should not be read by applicants as law. The Federal Court adopted the comments of the Administrative Appeals Tribunal (AAT) in Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 regarding the application of the Minister’s policy: I accept that, in the exercise of discretions under the Australian Citizenship Act, the Tribunal ought generally to accept guidelines in policies which have been established by the Minister of State for Immigration and Ethnic Affairs [as the Minister was then called]. Such policies can only be adopted by the Minister. He has the experience and advice and the power to formulate such policies and he is able to take responsibility in Parliament should the policies be found wanting. But to say that, is not to say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down.199

In Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 (Roberts), Einfeld J affirmed (at 86) that “all factors that are relevant should be taken into account and their consideration should not be denied because they fall outside guidelines which have been prepared”. In addition, policy cannot constrain the exercise of delegated powers under the Act.200 Policy that fetters the powers conferred by the Act may 197 The Australian Citizenship Instructions are available to subscribers of LEGENDcom, the Department’s online database of migration and citizenship legislation and policy documents. 198 Citizenship Policy (Cth) Introduction. 199 Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86, quoting Davies J in Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267. 200 Citizenship Policy (Cth) Introduction.

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be ultra vires and invalid. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J, discussing the role of policy, stated (at 640–641) that: a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created … That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact.

The legality of the Citizenship Policy’s predecessor, the Australian Citizenship Instructions, was challenged in a number of contexts. For example, in the context of the exercise of the discretion under s 22(9) to treat a period as one in which a person with an Australian spouse was present in Australia (for the purposes of that person satisfying the relevant residency requirements), the instructions were held to be valid to the extent that they prescribe factors to be taken into account in determining whether to exercise the discretion. In Re Kilpi and Minister for Immigration and Citizenship (2012) 135 ALD 549 at 557, Handley SM commented: I am satisfied that this instruction guides, but does not control the making of decisions under s 22(9) … The amount of weight and eventually the way in which the scales tip, when all other factors are considered is a matter for the decision-maker. I am not satisfied that the [Australian Citizenship Instructions] are unlawful and they do not place a fetter on the discretion in s 22(9) of the Act.

This said, the tribunal has also acknowledged that the proper approach to the application of policy regarding s 22(9) requires that the tribunal: while having regard to relevant policy and the desirability of consistency in administrative decision-making, must not abdicate its function of determining whether the decision under review was, on the material before it, the correct or preferable one having regard to the justice of the outcome in the individual case.201

A second context in which the validity of the instructions was challenged is in the context of refusals of citizenship applications under s 21(5). Before s 21(5) was amended to require all children applying for a conferral of Australian citizenship under that section to be permanent residents,202 a statement in the instructions that children’s applications “would usually be approved” if they held a permanent visa, satisfied a residency requirement and met other criteria, was upheld in a number of 201 Wolstenholme and Minister for Immigration and Citizenship (2010) 115 ALD 219; [2010] AATA 315 at [41]. This approach was recently adopted in Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [20]. 202 This 2009 amendment is discussed at [4.700].

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cases.203 The instructions indicated that a person who did not satisfy these criteria would only be granted citizenship in “exceptional” or “very unusual” circumstances. The Federal Court in Singh v Minister for Immigration and Citizenship (2012) 125 ALD 149 at 166 examined the purpose of s 21(5) as it was then drafted, and stated that: it would be consistent with the explanatory memorandum to read it as authorising a policy which recognised that the purpose of that subsection was primarily to facilitate the grant of citizenship to permanent residents under 18 years of age. Given that primary purpose, an application by a nonpermanent resident could properly be described as “exceptional” or “unusual” and treated accordingly.

The policy guidelines in the Australian Citizenship Instructions were policy considerations which the Explanatory Memorandum to the Act suggested were appropriate matters to take into account in the exercise of the discretion under s 24(2).204 They did not control the way in which the discretion is to be exercised, but provided guidance on its exercise. Thus, they were not ultra vires.205

Children and citizenship policy [4.230] A number of sections of the Citizenship Policy focus specifically on children.206 A notable inclusion is a chapter addressing the consideration of children’s best interests in the exercise of discretion under the Act. Chapter 22 of the Citizenship Policy was originally inserted into the Australian Citizenship Instructions with effect from 1 July 2013. It states that officers must consider a child’s best interests when exercising a discretionary power under the Act in relation to decisions relating to a child or to a family member, primary care-giver or other person who has claimed responsibility for the child. This is the case even if the decision does not directly relate to the child, because a 203 The argument was successful in the Administrative Appeals Tribunal (AAT) in Re SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645 and Re Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452, but unsuccessful in the Federal Court in Singh v Minister for Immigration and Citizenship [2011] FCA 685 (this approach was later upheld by the full Federal Court in Singh v Minister for Immigration and Citizenship (2012) 125 ALD 149). The tribunal has followed the Singh approach since: see, eg, Shams v Minister for Immigration and Citizenship (2011) 199 FCR 423; [2011] FCA 1505; Vasconcelos and Minister for Immigration and Citizenship [2011] AATA 534. 204 As explained in Shams v Minister for Immigration and Citizenship (2011) 199 FCR 423; [2011] FCA 1505 at [78]. 205 Note that further challenges on the validity of the permanent residency criterion in the policy are no longer possible due to the 2009 amendment of s 21(5). 206 Key parts include Chapter 4 (particularly in relation to adopted and abandoned children), Chapter 5 (particularly in relation to persons under 18 applying for citizenship under s 21(5) – and note here that children aged under 16 are distinguished from those aged between 16 and 18), Chapter 20 (which deals with determining whether a parent-child relationship exists), Chapter 21 (which addresses the concept of a “responsible parent”) and Chapter 22 (which deals with the consideration of children’s best interests).

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decision about a parent or primary care-giver may affect the child.207 The policy explains that the meaning of “best interests of the child” is not defined, but is informed, in part, by the principles in the Convention on the Rights of the Child.208 Factors that are described as most likely to be relevant to citizenship decisions are: • children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse; • families should be able to stay together, as far as possible; • the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child; • the child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law; • prevention of the illicit transfer and non-return of children abroad; • freedom of religion; • the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding; and • the degree of the child’s integration into the Australian community.209 These factors must be considered if raised by the applicant or a third party, or evident on the available material, but decision-makers are not required to request further material for consideration regarding the rights of a child.210 The inclusion of Ch 22 is an interesting expression of the Department’s approach to children’s best interests in citizenship policy. Children’s best interests have previously been considered by decision-makers,211 and mentioned in specific parts of the Citizenship Policy212 and the Australian Citizenship Instructions, but this is the first chapter dedicated specifically to children’s best interests. The guidance is generally consistent with the Committee on the Rights of the Child’s views about the implementation 207 In particular, the discretion under ss 19D(3) and (7A), 22(4A), (5), (5A), (6), (9) and (11), 22A(3), (4) and (5), 22B(3), (4) and (5), 24(2) and (4C), 25, 26(3) and (5), 30(2) and (7), 33(5), 34, 36, 37, 38 and 40: see Citizenship Policy (Cth) Ch 22 p 224. 208 Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990): see Citizenship Policy (Cth) Ch 22 p 225. 209 Citizenship Policy (Cth) Ch 22 p 225. 210 Citizenship Policy (Cth) Ch 22 p 225. 211 See, eg, Okeke and Minister for Immigration and Citizenship [2012] AATA 882; SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645; [2009] AATA 539; Paul and Minister for Immigration and Citizenship [2009] AATA 97; Raisini and Minister for Immigration and Citizenship [2008] AATA 640; Choi and Minister for Immigration and Citizenship (2008) 104 ALD 117; [2008] AATA 726. 212 The best interests of the child are a relevant consideration in the exercise of the discretion to refuse to approve an application for citizenship under s 21(5) by an applicant under the age of 18: see Citizenship Policy (Cth) Ch 7 p 75).

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of the child’s right to have their best interests considered.213 However, it will be interesting to observe how this guidance influences decisionmaking in practice, especially given that the policy specifically states that “[t]he power to approve or refuse citizenship in accordance with the Act is a fundamental exercise of Australian sovereignty.”214 In addition, the policy makes it clear that the Convention on the Rights of the Child does not require that the best interests of the child be the only primary consideration. The child’s best interests must be “weighed with or against any other primary considerations in the specific circumstances”, including the objectives of the relevant provision, community protection and community expectations.215

AUTOMATIC ACQUISITION OF AUSTRALIAN CITIZENSHIP [4.240] This chapter now turns to an examination of the circumstances in which individuals can acquire Australian citizenship. Australian citizenship may be acquired automatically or by application.216 This section examines each of the circumstances in which citizenship is (and was historically) acquired automatically. The acquisition of Australian citizenship by application is discussed at [4.370]. While Australian citizenship was in practice acquired automatically prior to 2007, for example by birth in Australia, terminology of the “automatic acquisition of Australian citizenship” was introduced with the commencement of the 2007 Act. The 2007 Act clarified the ways in which citizenship is acquired automatically, and distinguished these ways from the ways in which citizenship may be acquired by application.217 Section 11A of the 2007 Act sets out the most common way a person will automatically become an Australian citizen under the Act: by being born in Australia to a parent who is an Australian citizen or permanent resident at the time of the birth.218 The other, less common, ways a person automatically becomes an Australian citizen under the Act are: by being born in Australia and by being ordinarily resident in Australia for the next 10 years;219 by adoption in Australia;220 for children abandoned in 213 Committee on the Rights of the Child, General Comment No 14: On the right of the child to have his or her best interests taken as a primary consideration (Art 3, para 1) 62nd sess, UN Doc CRC/C/GC/14 (29 May 2013) p 4. 214 Citizenship Policy (Cth) Ch 22 p 223. 215 Citizenship Policy (Cth) Ch 22 p 225. 216 Interesting philosophical questions arise regarding access to citizenship: see Shachar, “The Worth of Citizenship in an Unequal World” (2007) 8 Theoretical Inquiries in Law 367 and her book, The Birthright Lottery: Citizenship and Global Inequality (2009), discussed also in Chapter 1 at [1.10] and [1.60]. 217 See 2007 Act, Pt 2 Divs 1, 2. 218 See 2007 Act, s 12. 219 See 2007 Act, s 12. 220 See 2007 Act, s 13.

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Australia;221 and by incorporation of territory into Australia.222 Each of these avenues will be considered in turn.

Citizenship by birth People born after 26 January 1949 and before 20 August 1986 [4.250] Section 10 of the 1948 Act provided that people born in Australia223 between 26 January 1949 and 20 August 1986 were Australian citizens provided their father (later “parent”) was not a diplomat.224 The Act also denied citizenship to an Australian-born person whose father was an enemy alien where the birth occurred in a place then under

221 See 2007 Act, s 14. 222 See 2007 Act, s 15. 223 Between 26 January 1949 and 8 January 1954, “Australia” was defined as including Norfolk Island and the Territory of Papua; from 8 January 1954 until 31 December 1973 the definition was “includes the Territories of the Commonwealth that are not trust territories”; and from 1 January1974 until 22 November 1984 it was “includes the Territories that are not trust territories”. Since 22 November 1984, when used in a geographical sense, “Australia” is defined as “includes the external territories”. Regarding birth in Papua, see the Full Federal Court’s decision of Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694. 224 See s 10(2)(a) of the 1948 Act. There are three distinct timeframes relevant to persons born to diplomats. The terminology from 26 January 1949 to 5 May 1966 was: “at the time of his birth his father was not an Australian citizen and possessed the immunity from suit and legal process which is accorded to any envoy of a foreign country accredited to His Majesty”. From 6 May 1966 until 21 November 1984, the terminology was changed by Act No 11 of 1986 to: “at the time of his birth his father was not an Australian citizen or was not ordinarily resident in Australia and was a person who was entitled in Australia to any immunity from suit or other legal process by virtue of any law relating to diplomatic privileges and immunities … or a consular officer of a foreign power”. From 22 November 1984 until 19 August 1986, the terminology changed to: “at the time of his birth, a parent of the person was not an Australian citizen or permanent resident and was a person who was entitled to any immunity from suit or other legal process by virtue of any law relating to diplomatic privileges and immunities … or a consular officer of a foreign power”. Michael Pryles points out that the definitions are quite narrow and could allow children of foreign diplomats to be entitled to Australian citizenship: see Pryles, Australian Citizenship Law (1981) pp 68–69. Note also that s 10(2)(c) was relevant in Petrovski v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 531 at 532–539 where the applicant was born in Sydney on 12 November 1969 when his father was Consul-General in Australia for the former republic of Yugoslavia. The applicant, aged 14 and in Yugoslavia, formed the intention to live in Australia, believing he was an Australian citizen. In July 1993, the Department informed the applicant that he was not, and had never been, an Australian citizen. The case was complicated by the fact that in Belgrade the applicant had, in error, been issued an Australian passport that should have been surrendered. The court held that s 7(1) of the Passports Act 1938 (Cth) empowered the relevant Minister to issue Australian passports to Australian citizens, but the grant of a passport did not in law confer citizenship upon the holder and was legally irrelevant to citizenship. See further discussion about passports in Chapter 5 at [5.190] and [5.210]

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occupation by the enemy. This covered the situation of Australia being occupied by an enemy and a birth occurring to an enemy alien.225 These initial provisions reflected a statutory adoption of the common law principle of “jus soli”, that is, citizenship by place of birth. At common law, birth within the sovereign’s dominion only conferred British nationality if the person owed allegiance to the monarch and it was recognised that certain people would not hold such an allegiance. The provisions essentially mirror those exceptions found in the statutory provisions relating to children of diplomats or enemy aliens. Special provision also existed between 1 December 1973 and 21 November 1984 for people born in Australia whose mothers were Australian citizens at the time of the birth, and who would otherwise be stateless, to become Australian citizens. This would have provided for those not entitled to citizenship by virtue of the exceptions (children of diplomat fathers and enemy alien fathers) who would not have obtained the citizenship status of the father. There were also special provisions for people ordinarily resident in the Cocos (Keeling) Islands before the land was transferred to Australia on 23 May 1955, and for people ordinarily resident on Christmas Island immediately before the transfer of the Island to Australia on 1 October 1958, to acquire Australian citizenship by registration of a declaration. This was not done within the Australian Citizenship Act 1948 (Cth) but through the Cocos (Keeling) Islands Act 1955 (Cth)226 and through the Christmas Island Act 1958 (Cth).227 People born on and after 20 August 1986 and before 1 July 2007 [4.260] A significant amendment to the 1948 Act was made in 1986. Section 10 of the 1948 Act was amended to provide that a person born in Australia228 on and from 20 August 1986 would be an Australian citizen only if one of the parents at the time of birth was an Australian citizen or permanent resident.229 However, s 10(6) excluded from the definition of “permanent resident” people who were “exempt non-citizens” under the 225 The definition of “enemy alien” has not been considered in this context in Australia but, in essence, it would cover a person who is a national of another country at war with Australia. See Pryles, Australian Citizenship Law (1981) p 70 and the support for such a definition in English case law. 226 Later amended by the Cocos (Keeling) Islands Amendment Act 1979 (Cth), and then repealed as from 7 July 1997. 227 Later amended by the Christmas Island Amendment Act 1980 (Cth) s 15A and then repealed as from 7 July 1997. 228 From 22 November 1984, “Australia” is defined, when used in a geographical sense, as “includes the external territories”. “Prescribed Territory” is defined in s 5 of the 1948 Act as “Norfolk Island or the Territory of Cocos (Keeling) Islands”. The Cocos (Keeling) Islands were transferred to Australia on 23 November 1955 and Christmas Island (in the Indian Ocean) became an Australian Territory on 1 October 1958. 229 “Permanent visa” was defined in s 5 to have the same meaning as in the Migration Act 1958 (Cth). Section 5A also defined “[c]ertain non-citizens to be permanent residents for

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Migration Act 1958 (Cth). This applied to people who were exempt from the requirement to hold an entry permit to enter and remain in Australia (primarily New Zealanders) before 1 September 1994. Section 10(2) also allowed people who were born in Australia and who did not gain citizenship automatically by virtue of a parent’s status, and who for ten years from that birth were “ordinarily resident”230 in Australia, to become Australian citizens. In that case, the child would become an Australian citizen on his or her tenth birthday.231 This provision operated as of law so there was no application requirement. But a person who believed the section applied to him or her could apply for a declaratory certificate of Australian citizenship.232 If such a declaratory certificate was denied, there were no merit review rights, so judicial review would have been the only way to challenge such a decision. Children born in Australia between 20 August 1986 and 31 August 1994 to New Zealand citizens who were exempt non-citizens,233 would have benefited from this section, together with children born to temporary residents who may have subsequently become permanent residents, and children born to persons unlawfully present in Australia who remained in Australia for ten years.234 the purposes of the Act.” This was a particularly complicated provision. There are distinct periods of relevance: before and after 2 April 1984, and before and after 1 September 1994. The key factor is that the person is not subject to any time limitation imposed by law on their presence in Australia and is not an illegal immigrant. See also Rani v Minister for Immigration and Multicultural Affairs (unreported, Fed Ct of Aust, Decision No NG 394/97, Sackville J, 19 December 1997) which involved a child and her acquisition of citizenship at birth. The treatment of New Zealand citizens is particularly complicated in this area. For further information on the departmental approach, see the Australian Citizenship Instructions or Citizenship Policy in force at the time of birth. 230 In s 5(3)(e), a person was said to be “ordinarily resident in a country” if it was the person’s home or the country of his or her permanent abode notwithstanding temporary absence. But a person would not be ordinarily resident if the person resided for a special or temporary purpose only. The Australian Citizenship Instructions provided for relevant considerations to include the length of physical residence in Australia, whether the person considered Australia to be his or her home, the nature and extent of any period of absence and the nature and extent of ties with Australia, such as the presence of family, attendance at school, club memberships, etc. 231 There are cases where such a child may have become an Australian citizen by descent within that first ten years. 232 A person may apply to the Minister for evidence of their Australian citizenship under the 2007 Act: see s 37. 233 On 1 September 1994, amendments to the Migration Act 1958 (Cth) required all non-citizens to hold visas. The Special Category Visa was introduced for New Zealand citizens. This was a permanent visa, so from 1 September 1994, children born in Australia to New Zealand citizens holding a Special Category Visa would automatically gain citizenship under s 10. For a historical summary of the status of New Zealand citizens in Australia, see Citizenship Policy (Cth) Ch 18. 234 An example of the latter can be seen in Molisi v Minister for Immigration and Multicultural Affairs (2001) 108 FCR 516; [2001] FCA 420. The applicant, an unlawful non-citizen who had been in Australia for more than ten years, sought to make applications on behalf of her two eldest children, who had obtained citizenship through

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Section 10 also provided for persons born in Australia to enemy aliens not to be recognised as Australian citizens where the birth occurred in a place then under occupation by the enemy, except if at the time of the birth a parent of the person was an Australian citizen or permanent resident and was not an enemy alien.235 The place of birth may be contentious in some circumstances. The 1948 Act provided in s 5(3)(a) that persons born on a registered ship or aircraft would be deemed to have been born at the place at which the ship or aircraft was registered, and a person born on an unregistered ship or aircraft belonging to the government of a country would be deemed to have been born in that country. This covered children whose parents were on their way to Australia and who may have wished to take advantage of s 10(2). The change to citizenship by birth in 1986 reflected a significant policy change. No longer reflecting purely the “jus soli” principle, the new section privileges the “jus sanguinis” concept of citizenship by descent. The determining factor is not the place of birth, but the citizenship of the parents. What led to such a change? The links between migration law and citizenship law can be highlighted here. The immediate catalyst was the case of Kioa v West (1985) 159 CLR 550 where it was argued that the child of the parents who were subject to a deportation order was an Australian citizen and was therefore entitled to natural justice. While not adopted by the court, the possibility that such an argument might one day be successful was enough to encourage precautionary legislative change.236 These provisions were reviewed in 1994 by the Joint Standing Committee on Migration in its Report, Australians All: Enhancing the Meaning of Australian Citizenship.237 The Report concluded that there was no substantive evidence for changing the existing rules and it was “strongly of the opinion that citizenship law should be drafted so that it is not able to be used by persons seeking to obtain an immigration advantage”.238 s 10(2), to judicially review decisions of the Minister pursuant to s 48 of the Migration Act 1958 (Cth) denying them the right to make application for further visas. The consequences of the Minister’s decision would be the removal of the parents and two younger children from Australia. While the court held that the consequences of the Migration Act 1958 “will have a serious detrimental impact on the welfare of two Australian citizen children” (at [20]), it did not have the power to issue an injunction otherwise. 235 See s 10(3) and (5). 236 Note also the reference to Molisi v Minister for Immigration and Multicultural Affairs (2001) 108 FCR 516; [2001] FCA 420, where the citizenship status of the children still did not assist the parents in their review of the Minister’s decision not to allow them to remain in Australia. 237 Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) pp 100–101 at [4.63]–[4.70]. 238 Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) pp 100–101 at [4.68].

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The Australian Citizenship Council’s Report, Australian Citizenship for a New Century, followed suit. It reviewed the provisions for acquisition of citizenship by birth and concluded that the current policy and law strikes the correct balance. The Report stated: In particular, in an international environment where population movements are increasing exponentially, and where Australia is seen by many as a desirable destination, it would be inappropriate to allow migration laws to be circumvented through the acquisition of Australian Citizenship status by children born in Australia to temporary or illegal entrants. Such an approach would compromise Australia’s migration program as well as being inequitable to the many thousands of people who apply to migrate to Australia every year through the proper channels.239

The Council was also comforted by the “safety net” provisions in s 23D preventing children from statelessness.240 In response, the government accepted the Council’s recommendation.241 People born on and after 1 July 2007 [4.270] The operation of s 12 of the 2007 Act mirrors that of s 10 of the 1948 Act. A person born in Australia on and from 1 July 2007 will automatically become an Australian citizen if one of their parents242 is an Australian citizen or a permanent resident (and is not an enemy alien) at the time the person is born.243 If a person is born in Australia to parents who are not citizens or permanent residents, that person will become a citizen on their tenth birthday, provided they are ordinarily resident in Australia throughout the period of 10 years beginning on the day they were born.244 A person is “ordinarily resident” in Australia if, and only if, that person has their home in Australia, or if Australia is the country of their permanent abode, even if they are temporarily absent from Australia.245 A person will not be taken to be “ordinarily resident” in Australia if he or she resides in Australia for a temporary or special purpose.246 The current 239 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 40. 240 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 40. 241 Australian Citizenship … A Common Bond, Government response to the Report of the Australian Citizenship Council (May 2001) p 16. 242 The definition of “parent” is examined in H v Minister for Immigration and Citizenship (2010) 272 ALR 605 where the question of law raised by the matter was whether the word “parent” in s 16(2) of the 2007 Act means only a biological parent. 243 2007 Act, s 12(1)(a). 244 2007 Act, s 12(1)(b). For a discussion of the practical implications and human rights issues associated with the operation of this provision, see Rubenstein and Field, “Conceptualising Australian Citizenship for Children: A Human Rights Perspective” (2013) 20 Australian International Law Journal 77. 245 2007 Act, s 3. 246 2007 Act, s 3.

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Citizenship Policy (consistent with the Australian Citizenship Instructions in operation in respect of the 1948 Act) provides that relevant considerations in assessing whether a person is ordinarily resident include the length of physical residence in Australia, whether the applicant considered that their home was in Australia for the first ten years of their life, the nature and extent of any periods of absence from Australia, and the nature and extent of ties with Australia such as presence of family, attendance at school, and club memberships.247 The Citizenship Policy also makes it clear that temporary absences from Australia do not necessarily mean that Australia has ceased to be the permanent place of residence; however, it is relevant to consider whether the person retained the right to return to Australia during the absences.248 A child who has been removed from Australia under the Migration Act (possibly with their family) prior to their tenth birthday, and who did not have the right to return to Australia, cannot be considered to have been ordinarily resident in Australia for ten years from birth.249 The meaning of “ordinarily resident” in the context of s 12 was considered by the Federal Court in Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336. The 11-year-old applicant was born in Australia in March 2000. In December 2010, he made an application to the Minister for Immigration and Citizenship under s 37 of the 2007 Act for a notice evidencing his Australian citizenship. The applicant argued that he became a citizen on his tenth birthday by operation of s 12. The Minister refused to provide the notice as the applicant had not been ordinarily resident in Australia for the period of ten years since his birth. The applicant’s appeal of this decision was rejected by the court. The court took into account the length of the applicant’s absences from Australia, finding that the applicant spent approximately four years and 55 days outside Australia during the relevant ten-year period. The applicant departed Australia on ten separate occasions, on one occasion spending more than two years and three months continuously outside the country. The court regarded efforts by the applicant’s parents to secure residence in Canada and New Zealand during the period as evidence of a lack of intention to reside in Australia. The court commented that: the requirement laid down in s 12(1)(b) … implies a strong element of continuity. The requirements of the section will not be satisfied merely by establishing that an applicant has spent the majority of the relevant 10 year period in Australia. What is required is that the necessary connection be in place throughout the relevant period.250

Interestingly, despite the fact that the definition of “ordinarily resident” turns on the person claiming citizenship having their home or permanent 247 Citizenship Policy (Cth) Ch 3 p 29. 248 Citizenship Policy (Cth) Ch 3 p 29. 249 Citizenship Policy (Cth) Ch 3 p 30. 250 Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336 at [166].

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abode in Australia, the applicant himself did not give evidence in this case. Instead, the court determined the question of whether he was ordinarily resident in Australia “by reference to whether his parents were ordinarily resident here”.251 This raises a number of questions about the application of s 12 to children in practice. Does a consideration of “whether the applicant considered that their home was in Australia for the first ten years of their life”, a relevant factor listed in the Citizenship Policy, require that the applicant’s views be heard? Or is ordinary residence an objective test? If the applicant’s views are relevant, what is the best way to determine them if the applicant is a child? And to what extent should parents’ views and actions influence a determination of whether Australia is the child’s home or permanent abode?252 It is worth noting that, as was the case under the 1948 Act, s 7 of the 2007 Act deems a person born on a ship or aircraft registered in Australia or a foreign country to have been born at the place at which the ship or aircraft is registered. If the ship or aircraft is not registered and belongs to the government of a country, a person born on that ship or aircraft is taken to have been born in that country. Michael Pryles points out that this may disadvantage Australian citizen parents who may per chance give birth on a foreign-registered ship docked in an Australian harbour. That child would need to be registered as an Australian citizen by descent.253 New exceptions to s 12 of the Act were proposed, but not enacted, in the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth). If they had been passed, the proposed amendments would have meant that a child who had lived in Australia for the first ten years of their life would not have been able to become a citizen under s 12 if: • at any time during the ten-year period, a parent was entitled to diplomatic previleges or immunities; • at any time during the ten-year period, the child was present in Australia as an unlawful non-citizen; • at any time during the ten-year period, the child was outside Australia without a right to return (except New Zealand citizens); or

251 Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336 at [166]. 252 For a discussion of these issues in the context of s 21(5) of the 2007 Act, see Rubenstein and Field, “Citizens in their Own Right: Achieving Adequate Recognition of Children in Australia’s Immigration and Citizenship Framework” in Crock (ed), Creating New Futures: Settling Children and Youth from Refugee Backgrounds (2015) Ch 14. 253 See Pryles, Australian Citizenship Law (1981) p 68.

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• if a parent had entered Australia on one or more occasion before the child’s birth, did not hold a substantive visa at the time of the birth, and was present in Australia as an unlawful non-citizen at any time between last entering Australia and the time of the child’s birth.254

Citizenship by adoption [4.280] Since 1984, Australia’s citizenship law has provided for permanent residents adopted under a law in force in an Australian State or Territory to automatically become Australian citizens. However, since 2007, the Act has contained an additional circumstance in which adopted persons may become citizens. It provides for individuals adopted overseas in certain circumstances to apply for Australian citizenship. Citizenship for persons adopted overseas is by application only and is discussed at [4.470].255 It remains the case that citizenship is only acquired automatically following domestic adoptions. Adoption in Australia before 22 November 1984 [4.290] Prior to 1984, no special provision existed under which adopted persons could become Australian citizens. People who were adopted by Australian citizens prior to 22 November 1984 are required to apply for a conferral of Australian citizenship under s 21 of the 2007 Act (and were previously required to wait to be naturalised under s 13 of the 1948 Act). Adoption in Australia on and from 22 November 1984 to 30 June 2007 [4.300] From 22 November 1984, non-citizens adopted in Australia automatically became Australian citizens under s 10A of the 1948 Act if they were in Australia as permanent residents and adopted under a law in force in a State or Territory by an Australian citizen (or jointly by two persons, one of whom was an Australian citizen). Adoption in Australia on and from 1 July 2007 [4.310] Section 13 of the 2007 Act replicates s 10A of the 1948 Act. Australian citizenship is automatically acquired under s 13 when a child is adopted in Australia under a State or Territory law (or an overseas adoption is finalised under Australian law), the child is present in Australia as a permanent resident, and at least one adoptive parent is an Australian citizen. Section 13 is an operation of law provision. However, it does not apply to persons adopted before 22 November 1984, children adopted overseas (unless they are also legally adopted in Australia or that adoption is finalised under Australian law). Children adopted overseas in accordance 254 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 12(3) – (7)). 255 Citizenship by application for individuals adopted in accordance with the Hague Convention is discussed at [4.470].

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with the Hague Convention or a bilateral agreement are entitled to apply for citizenship under s 19C of the 2007 Act.256 The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) contained a provision to clarify that s 13 only applies to individuals who were adopted while they were under the age of 18.257

Citizenship for children abandoned in Australia Child found abandoned before 4 June 1969 [4.320] Prior to 4 June 1969, no provision was made in the 1948 Act for abandoned children to claim Australian citizenship. Child found abandoned on or after 4 June 1969 and before 20 August 1986 [4.330] The legislation in force between 4 June 1969 and 19 August 1986 provided that a child found abandoned in Australia was, unless and until the contrary was proved, deemed to have been born in Australia.258 The child was then an Australian citizen by virtue of the “citizenship by birth” provisions of the Act in force at the time. Child found abandoned on or after 20 August 1986 and before 1 July 2007 [4.340] From 20 August 1986, the 1948 Act deemed children found abandoned in Australia, unless and until the contrary was proved, to have been born in Australia if they satisfied certain conditions, depending on their date of birth.259 If the child was born between 26 January 1949 and 5 May 1966, their father must not have been a foreign diplomat or, if the birth occurred in a place under enemy occupation, an enemy alien. If the child was born between 6 May 1966 and 19 August 1986, their father must not have been a foreign diplomat or consular officer, resident in Australia, or, if the birth occurred in a place under enemy occupation, an enemy alien. If the child was born on or after 20 August 1986 in a place under enemy occupation, their parent must hot have been an enemy alien unless a parent was an Australian citizen or permanent resident and not an enemy alien. Child found abandoned on or after 1 July 2007 [4.350] The 2007 Act simplified the 1948 provisions, moving away from deeming birth in Australia to automatically conferring citizenship. Now, a child who is found abandoned in Australia, unless and until the contrary 256 See [4.470]. 257 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (amended s 13(a)). 258 1948 Act, s 5(3)(aa), as inserted by Act No 22 of 1969. 259 1948 Act, s 5(3)(b), as inserted by Act No 70 of 1986.

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is proved, is deemed to be an Australian citizen.260 Section 14 is an operation of law provision, and it is a question of fact whether a child is abandoned in Australia. The Citizenship Policy requires documentary evidence to be provided to the decision-maker, such as reports from the police force that located the child, and any other authority involved in deciding that the child had been abandoned.261 Under the 1948 Act, the child was deemed to have been born in Australia, and thus would have been a citizen by birth under the Act.262 The approach in the 2007 Act is more direct, but the outcome is the same. The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed repealing s 14 and inserting a new s 12(8) to provide that any child found abandoned in Australia will be presumed to have been born in Australia and to an Australian citizen or permanent resident (and thus automatically a citizen under s 12(1)(a)). The proposed new s 12(9) would have provided exceptions to this presumption when the child was known to have been outside Australia at any time before the child was found abandoned, or when it is known that s 12(1)(a) does not apply.263 These provisions were not enacted.

Citizenship by incorporation of territory [4.360] If any territory becomes part of Australia, the Minister may determine that specified classes of persons are Australian citizens from a specified day because of their connection with that territory. From the day that the Minister specifies in the legislative instrument, a person included in a specified class will be an Australian citizen.264

AUSTRALIAN CITIZENSHIP BY APPLICATION [4.370] The terminology of acquiring Australian citizenship “by application” was introduced with the 2007 Act. “Citizenship by application” is a broad concept, encompassing citizenship by descent and the resumption of Australian citizenship, as well as citizenship by conferral. These categories for acquiring Australian citizenship were never automatic, but for the first time, the 2007 Act clearly delineates them as categories of “citizenship by application”. The terminology “citizenship by conferral” replaces the “citizenship by grant” framework in the 1948 Act. The 2007 Act also introduced a new category of citizenship by application, alongside the existing categories of citizenship by descent, 260 See s 14 of the 2007 Act. 261 Citizenship Policy (Cth) Ch 4 p 42, Ch 10 p 140. 262 See s 5(3)(b) of the 1948 Act. 263 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 12(8) – (9)). 264 See s 15 of the 2007 Act. An effectively equivalent provision was included at s 33 of the 1948 Act.

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conferral and resumption. Children adopted overseas to Australian citizens pursuant to specified arrangements may now be registered as Australian citizens.265 The historical material provided in this section is for reference only. It is important to note that the law that applies with respect to a person’s eligibility for citizenship by application is the law in force when their application is made. This is different to the historical provisions relating to the automatic acquisition of citizenship, which will apply to a person depending on when the event that triggered their automatic acquisition of citizenship occurred.

Citizenship by descent [4.380] The “jus sanguinis” principle, whereby citizenship is acquired by descent, has been mentioned above in discussing citizenship by birth, due to the requirement since 1986 that, in addition to birth in Australia, one of the parents must be an Australian permanent resident or citizen.266 A person does not, however, have to be born in Australia to be an Australian citizen. If a parent of the person was an Australian citizen, then, depending upon the timing of the application, that person may be eligible to apply for Australian citizenship. Citizenship by descent, 26 January 1949 to 30 April 1970267 [4.390] During this period, s 11 provided that a child was an Australian citizen if: (a) the father at the time of birth was an Australian citizen; or (b) the parents of the child were not married, the mother was an Australian citizen; or (c) the child was a British subject ordinarily resident in Australia or New Guinea; and (d) the birth was registered at an Australian consulate within one year of the birth.268 However, between 26 January 1949 and 30 October 1959 the section excluded a child who was born in a Commonwealth country269 and who became a citizen of that country by birth and the parent was not ordinarily resident in Australia or New Guinea. 265 See 2007 Act, Div 2 subdiv AA. 266 See above at [4.260]. 267 For citizenship by descent for persons born before 26 January 1948, see above at [4.200]. 268 Or such further period allowed by the Minister. The Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001 (at [8.2.2]) stated that, as a matter of policy, registrations were allowed outside the one-year period. 269 Section 7 of the 1948 Act defined those countries as the UK and Colonies, Canada, New Zealand, The Union of South Africa, India, Pakistan, Southern Rhodesia and Ceylon and, from 11 May 1955, also the Federation of Rhodesia and Nyasaland, Ghana, the Federation of Malaya and the State of Singapore and any other country declared by regulations to be a country within the Commonwealth of Nations to which the section applied.

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[4.400]

In 1970 these provisions were changed,270 and the new provision for the registration of persons born to Australian mothers when the parents were married at the time of birth, was made retrospective, allowing persons born to Australian mothers between 26 January 1949 and 30 April 1970 to be registered as Australian citizens.271 Citizenship by descent, 1 May 1970 to 21 November 1984 [4.400] During this period, if the child’s parents were married at the time of birth, then either parent had to be an Australian citizen.272 If the parents were not married, then the mother had to be an Australian citizen, or a British subject ordinarily resident in Australia or New Guinea.273 In addition to the parentage, the birth had to be registered at an Australian consulate within five years of the birth.274 For people born when their parents were not married, but the parents subsequently married, there was provision to reregister a child who would not otherwise have been registered. This was repealed on 30 November 1984. However, transitional provisions allowed for reregistration on the basis of the marriage of the parents.275 Citizenship by descent, 22 November 1984 to 30 June 2007 [4.410] Immediately prior to the commencement of the 2007 Act, there were three provisions in the 1948 Act governing citizenship by descent: ss 10B, 10C and 11. Section 10B was inserted into the 1948 Act in 1984. Under s 10B, a person born outside Australia was an Australian citizen if: • their birth was registered at an Australian consulate276 within 18 years of the birth;277 and 270 See below at [4.400]. 271 Those who were not able to register, despite this retrospective application, were people who had already turned 18. They were later able to register after turning 18 by virtue of s 10(C) of the 1948 Act. 272 1948 Act, s 11(1)(a) inserted by Act No 22 of 1969. 273 1948 Act, s 11(1)(b) inserted by Act No 22 of 1969. 274 Or such further period allowed by the Minister. The Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001, stated (at [8.2.4) that, as a matter of policy, registrations were allowed outside the five-year period. 275 See transitional reg 12 of SR 351 of 1984. 276 The Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001, set out the application requirements for registration under s 10B (at [8.3.5]). They included lodging the application at any Australian post overseas or at any office of the Department of Immigration and Multicultural Affairs, using the approved Form 118 (Application for registration of Australian citizenship by descent). It was not necessary for the applicant to be an Australian citizen or a parent of the child. The application must have been accompanied by the prescribed fee. 277 Section 10B(4) of the 1948 Act also provided that if the application was made before the 18th birthday, but the registration actually occurred after the 18th birthday, the person would be an Australian citizen.

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• one of the parents278 was an Australian citizen otherwise than by descent, or by descent,279 and the parent by descent was present in Australia at any time before the registration of the name of the child lawfully for a period of not less than two years.280 If one of the parents was not an Australian citizen, then the parent who was an Australian citizen must either have been a “responsible parent”281 or deceased in order for the child to be registered.282 The Australian Citizenship Regulations 1960 (Cth) provided for the keeping of a register of births abroad at each Australian consulate.283 The procedure for registering these applications was set out in the Australian Citizenship Instructions.284 From 18 June 1991, s 11 also provided specifically for citizenship by descent, through a mother, for people born outside Australia and New Guinea before 26 January 1949 whose mother was an Australian citizen on 26 January 1949, either by birth or naturalisation. The application must have been made before 17 June 1996.285 The applicant also had to be present in Australia for any time before 1 May 1987 and of good 278 Section 5 provided for children born through medical procedures (artificial insemination) where the child born to the woman was not biologically the child of the man. For the purposes of the Act, the child was taken to be a child of the man if the medical procedure was with the consent of that man. Section 34 provided for children born after a parent’s death to be regarded as children of the parent. 279 Defined in s 10B(5) of the 1948 Act as descent under s 10B, 10C or 11 before or after the commencement of s 10B. 280 1948 Act, s 10B(1)(b)(ii)(B). These two years can be made up of separate occasions. 281 “Responsible parent” was defined in s 5(2) and, in essence, was concerned with parental responsibility for the child, the person not having been denied this by a court order. 282 See 1948 Act, s 10B(2). A case regarding a deceased parent is Dvorani v Minister for Immigration and Multicultural Affairs (2000) 31 AAR 536 where the deprivation of the parent’s citizenship through s 20 was relied upon by the Minister to deny the grant of citizenship by descent: see further discussion at [4.1160]. 283 The Australian Citizenship Regulations 1960 (Cth) (SR No 62) as amended define “register” in reg 3 as: “(a) the Register of Citizenship of Births Abroad referred to in subregulation 7(1) of the Regulations as in force before the commencement of Statutory Rules 1984 No 351; and (b) the Register of Citizenship by Descent referred to in subregulation 7(1) of the Regulations as in force before the commencement of Statutory Rules 1984 No 351”. Regulation 7 provides for the Register of Citizenship by Descent to be kept at “each Australian Consulate, in a bound volume containing forms”. The forms to be kept in the Register are to be in accordance with Form 2 as set out in Sch 2 of the Regulations. See also regs 7A – 7H regarding the powers over the register and registration under ss 10B and 10C. 284 See Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001 at [8.3]ff. 285 See also regs 8A, 8B and 8C of the Australian Citizenship Regulations 1960 (Cth) (SR No 62) in force at the time. This provision was also explained in the Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001 at [8.2.7].

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character.286 The timing of this provision was anomalous as there was no entitlement to claim this descent until the Australian Citizenship Amendment Act 1990 (Cth) commenced on 18 June 1991. Therefore, only those people present in Australia before 1987 could benefit from this section after it was introduced. A person notified of the amendment on its commencement could not fulfil its conditions if they had not previously been in Australia before 1987. As the AAT pointed out: This is an instance where a legislative amendment to correct an anomaly, based on gender, has had the effect of creating … a “Catch 22”. People were not advised before 1 May 1987 of the need to enter Australia before that date, in order to claim citizenship by descent through a mother, because at that time, there was no right to claim citizenship in that way. When the right was given in 1991, it only benefited those who had entered Australia before 1 May 1987.287

From 15 January 1992, s 10C was inserted to allow for citizenship by descent for people aged 18 or over who were born on or after 26 January 1949 and who were 18 years or over at the time of the new provision. Thus, they must have been born on or after 26 January 1949 and before 15 January 1974. There was no discretion as to the timing set out in the provision. This was seen in Re Mocatta and Department of Immigration and Ethnic Affairs (1995) 38 ALD 665 at 667 where the applicant was 17 years and 4 months old on the commencement date and therefore unable to fulfil the requirement of s 10C(4)(c)(ii). The tribunal stated that “as comment only, it would be seen that this is an arbitrary result and might be thought to be an unfortunate outcome. The applicant has in effect fallen between two stools”.288 Another restriction in the section was that the applicant must have had a natural parent289 who was an Australian citizen at the time of the birth of the applicant, and at the time of the application.290 The Minister must also have been satisfied that the applicant was of “good character”.291 286 See 1948 Act, s 11(3). 287 See Jack Grossberg v Department of Immigration and Ethnic Affairs (unreported, AAT, Decision No V94/565, 23 October 1995) at [17]. The lack of discretion associated with this section was also discussed in Pillinger and Minister for Immigration and Multicultural Affairs [2000] AATA 462 where the applicant was not aware of the provision within the timeframe available to utilise it, even though he would have satisfied the provision if he had applied before 17 June 1996. 288 Another s 10C case involving historical material is Lappas and Department of Immigration and Multicultural Affairs [1999] AATA 380, discussed in Chapter 3 at [3.50]. 289 In Heald and Minister for Immigration and Multicultural Affairs [2001] AATA 455, the citizenship of the applicant’s birth parents was unknown and so the applicant could not satisfy this requirement. 290 The parent may also be dead but, at the time of death, was an Australian citizen: see 1948 Act, s 10C(4)(b). 291 See 1948 Act, s 10C(4)(d). See also Re Cross and Minister for Immigration and Multicultural Affairs [1999] AATA 97 where the tribunal referred to Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 424–425. See further, discussion about “good character” below at [4.1060].

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Section 10C was inserted to allow for the registration of a person who had failed “for an acceptable reason”292 to become registered as an Australian citizen. The Australian Citizenship Instructions explained that this was to meet the needs of those who were not able to register by descent because they were over 18.293 Many of those born to married parents of an Australian mother between 26 January 1949 and 30 April 1970 could not be registered during that period.294 Registration as a precondition for entitlement to citizenship by descent was discussed in detail in the Report by the Joint Standing Committee on Migration.295 In particular, the Report looked at whether: • children born overseas should acquire Australian citizenship automatically at birth; • persons who acquire Australian citizenship by descent should have the same rights when it came to passing on Australian citizenship to their children as persons who acquire Australian citizenship by birth; • improvements could be made to the registration system; and • the Minister’s discretion to register those failing to register before turning 18 years of age was adequate. The Report recommended that the process for registration by descent be retained in its current form and that the concession in s 10C(4)(c)(ii) should not be limited to persons who were 18 years old on 15 January 1992. In contrast, the Australian Citizenship Council, in referring to the above recommendation, said that it “was conscious that the removal of the time limitation would considerably widen the operation of this provision – in fact, make it open-ended”.296 The Council was concerned about the possibility that “several generations of Australian citizens could live overseas without any real or tangible connection or association with Australia, yet in turn claim Australian Citizenship by descent for their children”.297 However, the Council was also conscious of the “sound social and economic reasons to enable Australians to participate more widely in the international community often to Australia’s advantage”.298 292 Defined in 1948 Act, s 10C(5). Section 10C(5)(d) referred to the applicant having a reason declared by the regulations to be an acceptable reason for the purpose of the section. 293 See Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001 at [8.4.1]. 294 See discussion at [4.390]. 295 Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) pp 103–112 at [4.77]–[4.104]. 296 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 43. 297 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 43. 298 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 43.

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Weighing the two opposing considerations, the Council decided that “the core issue is to determine the amount of time that a person living overseas should have within which to register to become an Australian citizen”.299 Taking into account that “not all Australians living overseas are aware of the time limitations within which overseas-born children must be registered to obtain Australian citizenship by descent”,300 the Council favoured giving young people an adequate period after reaching their maturity to decide for themselves whether they wish to apply for Australian citizenship by descent. It recommended extending the age limit from 18 to 25 years, a position adopted by the government in its response. In addition, the government stated that it would introduce a character requirement for registration of Australian citizenship by descent for people aged 18 or over.301 The Australian Citizenship Legislation Amendment Act 2002 (Cth)302 extended the age limit from 18 to 25 years for a person born outside Australia whose parent was an Australian citizen at the time of his or her birth to register as an Australian citizen by descent.303 It also included new character requirements.304 Citizenship by descent from 1 July 2007 Current provisions [4.420] There are now no age or time limitations on a person’s eligibility to apply for citizenship by descent. The 2007 Act contains no requirement that a child’s birth be registered with an Australian embassy or consulate. The only requirements for a person born outside Australia305 to become an Australian citizen by descent are that at least one of their responsible

299 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 43. 300 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 43. 301 Australian Citizenship … A Common Bond, Government response to the Report of the Australian Citizenship Council (May 2001) p 17. 302 This Act was introduced into the House of Representatives on 13 February 2002 and was passed by the House of Representatives on 12 March 2002, and by the Senate on 14 March 2002. Schedule 1 of the Act commenced on 4 April 2002; Sch 2 commenced on 1 July 2002. The Act was in the same form as the Australian Citizenship Legislation Amendment Bill 2001 (Cth), which had been introduced into the House of Representatives on 23 August 2001. The scheduled Second Reading debate of the 2001 Bill in the House of Representatives on 27 September was deferred and did not reach the Senate. With the dissolution of the 39th Parliament, the 2001 Bill lapsed. 303 See Sch 2, Its 2, 29, 31 and 36 of the 1948 Act. 304 See Sch 2, It 3 of the 1948 Act. 305 Or New Guinea, if the person was born before 26 January 1949: see s 16.

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parents was an Australian citizen at the time of the person’s birth, and, if the person is aged 18 or over306 and is not stateless,307 that they are of good character.308 Before 2007, there had always been a registration requirement for citizenship by descent. As discussed above, initially children had to be registered with an Australian embassy or consulate within one year of birth, or such further period as the minister allowed. In 1970 the registration period was changed to five years or such further period as allowed; in 1984 the time limit was within 18 years of the birth. In 2002 this was changed to 25 years. Despite the Australian Citizenship Council’s concerns in 2000 that widening the operation of the provision may mean that people could become Australian citizens without having any “real or tangible connection or association with Australia”,309 Parliament decided to make the provision open-ended from 2007, noting that: some Australians were not aware of the time limits for registration of a child as a citizen by descent and the result is that in some families there are children [who] are eligible for registration as citizen[s] by descent and others [who] are not because they were not over 18 years in 1984 and are now over 25 years of age.310

The 2007 Act’s other departure from the 1948 provisions is that it contains no requirement that the applicant’s parent be an Australian citizen or deceased at the time of the application.311 The parent must have been an Australian citizen at the time of the person’s birth. Aside from these differences, s 16(2) of the 2007 Act reflects ss 10B and 10C of the 1948 Act. Section 16(2) applies to people born outside Australia on or after 26 January 1949. A person will be eligible for Australian 306 If it had been passed, the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) would have applied the character requirement to people under the age of 18: see [4.1060]. 307 The good character inquiry is currently made of persons aged 18 or over who are or ever have been a national or a citizen of any country, or if Art 1(2)(iii) of the Convention Relating to the Status of Stateless Persons, done at New York on 28 September 1954 [1974] ATS 20 applies to them: see s 16(2), (3). Article 1(2)(iii) applies to persons with respect to whom there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity, a serious non-political crime outside the country of their residence prior to admission to that country, or have been guilty of acts contrary to the purposes and principles of the United Nations. This qualification was inserted by the Migration Legislation Amendment Act (No 1) 2008 (Cth) Sch 5. 308 See 2007 Act, Div 2 subdiv A. If the applicant’s parent became an Australian citizen under s 10B, 10C or 11 of the 1948 Act and the applicant is, or has ever been, the national of another country, then the parent must have been present in Australia (except as an unlawful non-citizen) for a total period of at least two years at any time before the person made the application: see s 16(2)(b)(i). 309 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 43. 310 Australian Citizenship Bill 2006 (Cth), Explanatory Memorandum (Revised) p 21. 311 1948 Act ss 10B(2), 10C(4)(b).

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citizenship if they have a parent who was an Australian citizen at the time of their birth. If that parent was a citizen by descent or by adoption by an Australian citizen in accordance with the Hague Convention on Intercountry Adoption or a bilateral agreement, then unless the person was not ever a national or citizen of any other country, the parent must have spent a total of two years in Australia at any time before the person applied for citizenship by descent. Section 16(3), which relates to persons born outside Australia or New Guinea prior to 26 January 1949, is the equivalent of s 11 of the 1948 Act, with additional clarification added in 2008 that people who are stateless and to which this provision applies need not satisfy the good character requirement.312 Section 11 complemented former s 25(3) which provided a person became a citizen by operation of law to a person born outside Australia before 26 January 1949 whose father became a citizen on that date, by providing for persons born outside Australia before 26 January 1949 whose mother became a citizen on that date.313 The meaning of “parent” [4.430] In the full Federal Court’s decision in H v Minister for Immigration and Citizenship and Another (2010) 272 ALR 605, the word “parent” in s 16(2)(a) was held not to be restricted to a biological parent, but includes someone capable of being considered a parent for some other reason.314 In that case, the court commented (at [54]): Today, the fundamental consideration in acquiring citizenship is the strength of the connection between a person and Australia; it is this which provides the basis for the “common bond” mentioned in the preamble [of the 2007 Act]. Within this framework, there is, however, little contextual support for the proposition that the word “parent” has some restrictive meaning, signifying only a biological parent, as opposed to a parent, whoever that may be, within ordinary meaning of the word.

The court held that the better approach was to attribute to the word “parent” its ordinary contemporary English usage. That case involved two appeals. The first applicant was a two-year-old boy born in China. When remitted to the AAT, it was held that the Australian husband of the applicant’s Chinese mother was not his “parent”. The two married three 312 Section 16(3)(c) requires the Minister to be satisfied that the applicant is of good character at the time of the Minister’s decision on the application if the person is or has ever been a national or a citizen of any country, or if Art 1(2)(iii) of the Convention Relating to the Status of Stateless Persons applies to the person. Article 1(2)(iii) applies to persons with respect to whom there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity, a serious non-political crime outside the country of their residence prior to admission to that country, or have been guilty of acts contrary to the purposes and principles of the United Nations. This qualification was inserted by the Migration Legislation Amendment Act (No 1) 2008 (Cth) Sch 5. 313 See Australian Citizenship Bill 2006 (Cth), Explanatory Memorandum (Revised) p 23. 314 See Hudson v Minister for Immigration and Citizenship [2011] FCA 1134; Hudson v Minister for Immigration and Citizenship (2012) 126 ALD 40.

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months before the applicant’s birth, but because the husband had only spent one week with the child since his birth and had not provided any financial support or input into decisions concerning the child, no parent-child relationship existed.315 The second respondent was a 21-year-old woman born in Fiji. Until 2009, the respondent had believed an Australian citizen, Mr McMullen, to be her biological father. In fact, her biological father was a Mr Davidson, who was deceased but likely to have been an Australian citizen. Mr McMullen, his wife and his children had also accepted that he was the respondent’s father. He had provided financial and emotional support to the respondent and visited her often. They continued to have a close relationship even when it was revealed by the respondent’s mother that Mr McMullen was not her biological father. In dismissing the Minister’s appeal, the court confirmed the tribunal’s conclusion that the respondent’s relationship with Mr McMullen satisfied s 16(2)(a) of the 2007 Act, commenting that “being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological”.316 It is important to note that s 8 of the 2007 Act makes it clear that if a child is the child of a person as a result of artificial conception procedures or surrogacy arrangements under the Family Law Act 1975 (Cth),317 the child is taken to be the child of that person and that person’s spouse or de facto partner under the relevant provisions of the Family Law Act 1975 (Cth). For the purposes of the 2007 Act, the child is taken not to be the child of anyone else.318 In these circumstances, a biological connection alone is not sufficient to constitute “parentage”.319 The Citizenship Policy provides extensive guidance for decision-makers determining whether a parent-child relationship exists.320

315 NWH and Minister for Immigration and Citizenship (2011) 121 ALD 224. The tribunal’s decision was upheld by Edmonds J in the Federal Court in Hudson v Minister for Immigration and Citizenship [2011] FCA 1134, and subsequently by the full Federal Court in Hudson v Minister for Immigration and Citizenship (2012) 126 ALD 40. 316 H v Minister for Immigration and Citizenship (2010) 272 ALR 605 at [129]. 317 Section 8 applies to children of persons under ss 60H and 60HB of the Family Law Act 1975 (Cth), which relate to children born as a result of artificial conception procedures in Australia or overseas and children born under surrogacy arrangements in Australia. Section 8 does not apply to overseas surrogacy arrangements. 318 2007 Act, s 8(2). 319 This point was made in H v Minister for Immigration and (2010) 272 ALR 605 at [129]. 320 Citizenship Policy (Cth) Ch 20.

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Good character [4.440] To be eligible to apply for citizenship under s 16, persons aged 18 or over321 who are, or who have ever been, a national or a citizen of any country, or to which Art 1(2)(iii) of the Convention Relating to the Status of Stateless Persons applies, must be of good character. The term “good character” is discussed at [4.1060]. Grounds for refusal of application [4.450] If a person makes an application under s 16, the Minister must, by writing, approve, or refuse to approve, the person becoming an Australian citizen.322 Unlike the other categories of citizenship by application,323 no ministerial discretion exists to refuse an application for Australian citizenship under s 16 by an eligible person.324 The Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under s 16(2) or (3), and satisfies the requirements set out in s 17.325 That is, the Minister is satisfied of the identity of the person,326 the person is not a national security risk,327 and the person has not ceased to be an Australian citizen in the 12 months prior to approval of their application for citizenship.328 These requirements are discussed at [4.1110]. If the Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) had been passed, s 16 would have been amended to require the Minister to refuse an application for citizenship by descent in circumstances where the applicant had certain criminal convictions.329 The Bill lapsed due to the 2016 federal election. When a person does not become a citizen, despite Minister’s approval [4.460] Parliament was careful to make it clear that a person does not become a citizen by descent under the 2007 Act if the person did not have a parent who was a citizen at the time of their birth.330 The intention was 321 If it had been passed, the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) would have applied the character requirement to people under the age of 18: see [4.1060]. 322 2007 Act, s 17(1). 323 With the exception of an application for citizenship by conferral under s 21(8) in circumstances of statelessness. 324 2007 Act, s 17(2); cf 2007 Act ss 19D(3), 24(2) and 30(2). 325 2007 Act, s 17(2). 326 2007 Act, s 17(3). 327 2007 Act, s 17(4) – (4B). 328 2007 Act, s 17(5). 329 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 17(4C)). 330 2007 Act, s 19A. Or, if the applicant was born before 26 January 1949, if they did not have a parent who became an Australian citizen on 26 January 1949. The lapsed

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to “put beyond doubt that this is the case even where the Minister has approved the person becoming an Australian citizen”.331 Thus, even if a person is approved as an Australian citizen under s 17, and registered as such, but it is later discovered that the person actually did not have a parent who was an Australian citizen at the time of their birth outside Australia, the person will not be, and never will have been, an Australian citizen.332

Citizenship by adoption in accordance with Hague Convention on Intercountry Adoption [4.470] As outlined above at [4.280], the 2007 Act deals with overseas adoptions separately from domestic adoptions. Children who are adopted under Australian law will automatically become Australian citizens under s 13.333 Children adopted overseas in accordance with the Hague Convention or a bilateral agreement may apply for Australian citizenship under s 19C. Children who fall outside these categories may apply for a conferral of Australian citizenship under s 21(5). These are children adopted overseas whose adoptions are not recognised by Australian law. That is, they were adopted in a country that is not a Hague Convention country or one with which Australia has a bilateral agreement, or where a compliance certificate in respect of the adoption has not been issued under the Hague Convention.334 However, the child must be a permanent resident to be eligible to apply for a conferral of Australian citizenship under s 21(5).335 This section focuses on citizenship under s 19C of the 2007 Act. That is, citizenship by application for children adopted in accordance with the Hague Convention or a bilateral agreement.

Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed to repeal s 19A as a consequential amendment to the introduction of a new s 33A, which would have allowed the Minister to revoke a person’s citizenship in circumstances where the Minister was satisfied that an approval for citizenship by descent should not have been given. 331 Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 26. 332 Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 26. 333 This is also the case for children adopted overseas whose adoption is later finalised in Australia. Australian citizenship is automatically acquired under s 13 when the adoption is finalised under Australian law (usually after a period of supervision), if the child is present in Australia as a permanent resident (adopted children often enter on a subclass 102 Adoption visas, which are permanent visas) and at least one adoptive parent is an Australian citizen. For an overview of adoption provisions and citizenship, see Citizenship Policy (Cth) Ch 6. 334 Some Hague Convention countries do not have full Hague adoption arrangements – that is, they do not issue “adoption compliance certificates”. 335 The operation of s 21(5) is discussed at [4.690].

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Overseas adoption before 1 December 1998 [4.480] Children adopted overseas prior to 1 December 1998 have two possible avenues to Australian citizenship. First, if their adoption was finalised under Australian law on or after 22 November 1984, the child would automatically become an Australian citizen under s 10A of the 1948 Act (if the adoption was finalised before 1 July 2007) or s 13 of the 2007 Act (if the adoption was finalised on or after 1 July 2007). The child must have been present in Australia as a permanent resident and at least one of their adoptive parents must have been an Australian citizen.336 Second, children adopted overseas could apply for a grant of citizenship under s 13(9)(a) of the 1948 Act until 30 June 2007. From 1 July 2007, they could apply for a conferral of citizenship under s 21(5) of the 2007 Act. However, since 9 November 2009, the child must have been a permanent resident to be eligible to apply under s 21(5).337 Overseas adoption on and from 1 December 1998 Historical context [4.490] Before 2007, children adopted overseas by Australian citizens were not afforded the same rights as children adopted in Australia, or children born overseas to Australian citizens. In its Report in 2000, the Australian Citizenship Council highlighted that “Australia’s obligation under the Convention is to provide for recognition of an adoption which takes place under the Convention and to accord the same rights to the child as would be accorded to the child adopted in Australia”.338 In 2005, the House of Representatives Standing Committee on Family and Human Services in its inquiry into the adoption of children from overseas highlighted that s 10B of the 1948 Act discriminated against children who are adopted overseas to Australian citizens “because they do not have the same rights to citizenship by descent as children who are born overseas to Australian citizens”.339 However, as the Australian Citizenship Council noted, “automatic citizenship for a child adopted overseas may not always be appropriate as the child may lose citizenship of their country of birth and/or 336 See the discussion of citizenship by adoption in Australia at [4.280]. 337 The practical consequences of the introduction of a permanent residency requirement in s 21(5) are illustrated by two cases involving children adopted in Tonga before the amendment: Lavalu and Minister for Immigration and Citizenship [2010] AATA 229 and, after the amendment, Lavelua and Minister for Immigration and Citizenship [2010] AATA 314. These cases, and the amendment, are discussed at [4.690]. 338 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 42. 339 Australia, Parliament, House of Representatives, Standing Committee on Family and Human Services, Report on the inquiry into adoption of children from overseas, Overseas Adoption in Australia (Canberra, November 2005) at [4.68].

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residence”.340 Accordingly, in 2007, Parliament adopted the recommendation of the House of Representatives Standing Committee that equivalent rights should be introduced for children adopted overseas as for children born overseas.341 The 2007 Act included new provisions to allow children adopted overseas by Australian citizens to become citizens in a similar way to that in which children born to Australian citizens overseas can apply for Australian citizenship by descent.342 Current provisions [4.500] A child adopted outside Australia by at least one Australian citizen may be eligible for citizenship if they are adopted in accordance with either the Hague Convention or a bilateral arrangement.343 Since 1 July 2007, children adopted by Australian citizens344 in accordance with the Hague Convention have been eligible to apply for a conferral of Australian citizenship under s 19C of the 2007 Act. The Hague Convention commenced operation in Australia on 1 December 1998. Thus, citizenship under s 19C is only available for children adopted in accordance with the Hague Convention on or after 1 December 1998. Adoptions in accordance with the Hague Convention are adoptions in which all legal ties between the adopted child and their birth parents have been severed.345 Section 19C also requires the adoption to have occurred in a Hague Convention country,346 an adoption compliance certificate to have been issued,347 and the adoption recognised and effective under the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth).348 The issuing of an adoption compliance certificate in accordance with the Hague Convention by the adoption authorities of the other Convention country, usually the child’s birth country, is sufficient for the adoption to be recognised and effective under the regulations. Once the certificate has been issued, the adoption is 340 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 42. 341 Australia, Parliament, House of Representatives, Standing Committee on Family and Human Services, Report on the inquiry into adoption of children from overseas, Overseas Adoption in Australia (Canberra, November 2005) at [4.69]. 342 Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 27. 343 2007 Act, s 19B. 344 The adoption may be by one person who is an Australian citizen, or two persons jointly, at least one of whom is an Australian citizen. If the adoptive parent (or one of them if both are Australian citizens) is an Australian citizen by descent or intercountry adoption, that adoptive parent must have been present in Australia (except as an unlawful non-citizen) for a total period of at least two years at any time before the application was made: see 2007 Act, s 19C(2)(e) and (f), (3). 345 Citizenship Policy (Cth) Ch 6 p 58. See 2007 Act, s 19C(2)(d). 346 2007 Act, s 19C(2)(a). 347 2007 Act, s 19C(2)(b). 348 2007 Act, s 19C(2)(c).

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recognised.349 There is no need for the adoptive parents to seek further recognition of the adoption under Australian law. In addition, since early 2015, children adopted through a bilateral arrangement,350 where the adoption is finalised overseas, have also been eligible for citizenship under s 19C.351 At the time of writing, Australia had prescribed bilateral adoption arrangements with three countries – Taiwan, the Republic of Korea and the Federal Democratic Republic of Ethiopia – but only those with Taiwan and the Republic of Korea were operational. Children adopted through these programs are eligible to apply for Australian citizenship under these provisions after finalisation of the adoption in Taiwan or the Republic of Korea. The program with the Federal Democratic Republic of Ethiopia was closed in 2012. Children adopted under this program prior to its closure are also eligible to apply for Australian citizenship under s 19C.352 Good character [4.510] To be eligible to apply for citizenship under s 19C of the 2007 Act, persons aged 18 or over353 must be of good character. The term “good character” is discussed at [4.1060]. Grounds for refusal of application [4.520] If a person makes an application under s 19C of the 2007 Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.354 The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s 19C(2).355 However, the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under s 19C(2).356 Any exercise of this discretion must, as a matter of policy, involve a consideration of the best interests of any child (or family member or care-giver of any child) to which the decision relates.357 349 See Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) regs 16, 17. 350 As defined in the Family Law (Bilateral Arrangements – Intercountry Adoption) Regulations 1998 (Cth). 351 As amended by Australian Citizenship Amendment (Intercountry Adoption) Act 2015 (Cth). 352 Citizenship Policy (Cth) Ch 6 p 60. 353 If it had been passed, the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) would have applied the character requirement to people under the age of 18: see [4.1060]. 354 2007 Act, s 19D(1). 355 2007 Act, s 19D(2). 356 2007 Act, s 19D(3). 357 See Citizenship Policy (Cth) Ch 22.

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In addition, the Minister must not approve an application under s 19C unless the Minister is satisfied as to the identity of the applicant,358 the applicant is not a national security risk,359 and the applicant has not ceased to be an Australian citizen in the 12 months prior to approval of their application.360 These requirements are discussed at [4.1110]. The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) included an amendment to s 19D which would have required the Minister to refuse an application for citizenship by intercountry adoption in circumstances where the applicant had certain criminal convictions.361

Citizenship by conferral [4.530] The terminology regarding citizenship bestowed upon people who were not born in Australia has changed since the beginning of the Act. From 1949 until 1974, there was citizenship by registration, naturalisation and, from 1970, notification. From 1974 until 2007 there was one form of citizenship for such people – citizenship by grant. Since 2007, the concept of citizenship by conferral sits alongside citizenship by descent, inter-country adoption and resumption as a category of Australian citizenship acquired by application. The category of citizenship by conferral, as opposed to citizenship by grant, registration or naturalisation, was introduced in 2007. The change in terminology from “grant” to “conferral” in 2007 was largely for linguistic clarity. The 1948 Act provided that the Minister could “grant a certificate of Australian citizenship” to a person who met the requirements in s 13. The term “conferral” was introduced to reflect the fact that in practice the “grant of a certificate” is the approval of an Australian citizenship application. A successful applicant only becomes an Australian citizen (that is, citizenship is conferred) once they have made the pledge of commitment.362 However, the introduction of the concept of citizenship by grant in 1974 was much more symbolic than the change to terminology in 2007. In many ways, it represented a changed way of thinking about membership of the Australian community. Until 1974, the category of British subject, and a preference and discrimination in favour of British subjects and other members of Commonwealth countries, was explicit through the registration process. Naturalisation was for aliens. Mr Grassby, presenting the Bill in the Second Reading speech to Parliament, stated: The guiding principle for the Government in the vitally important matter of the grant of Australian citizenship is that there should be no discrimination 358 2007 Act, s 19D(4). 359 2007 Act, s 19D(5) – (7A). 360 2007 Act, s 19D(8). 361 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 19D(7B)). 362 See Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 32.

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between different groups of settlers seeking to join the family of the nation. Wherever they were born, whatever their nationality, whatever the colour of their complexion, they should all be able to become Australian citizens under just the same conditions.363

Citizenship by conferral is now a category of Australian citizenship by application.364 A person may make an application to the Minister to become an Australian citizen by conferral under s 21(1). The Act then sets out the eligibility requirements for certain categories of applicants. In substance, s 21 of the 2007 Act largely mirrors s 13 of the 1948 Act. However, the 2007 Act clarifies that a person may be eligible to become an Australian citizen by conferral in seven situations: • if the person satisfies the general eligibility criteria and successfully completes a citizenship test;365 • if the person has a permanent or enduring physical or mental incapacity;366 • if the person is aged 60 or over or has a hearing, speech or sight impairment;367 • if the person is aged under 18 and is a permanent resident;368 or • if the person was born to a former Australian citizen;369 • if the person was born in Papua;370 or • if the person is stateless.371 This section discusses the historical concepts of citizenship by registration, naturalisation and grant. It then outlines the general eligibility requirements for citizenship by conferral, before considering in turn each of the remaining six situations in which a person may be eligible for a conferral of Australian citizenship.372 Citizenship by conferral – historical concepts [4.540] This section is provided for historical value, to understand the changes that have occurred in the philosophy of the conferral of Australian citizenship since the Act’s inception. As with the other categories of citizenship by application, a person who realises they were 363 Australia, House of Representatives, Australian Citizenship Bill 1973 (Cth), Second Reading (11 April 1973) p 1312. 364 Citizenship by descent, citizenship by adoption in accordance with the Hague Convention, and resumption of citizenship are the other three categories of citizenship by application, as discussed at [4.370]. 365 2007 Act, s 21(2) and (2A). See [4.590]. 366 2007 Act, s 21(3). See [4.640]. 367 2007 Act, s 21(4). See [4.680]. 368 2007 Act, s 21(5). See [4.690]. 369 2007 Act, s 21(6). See [4.730]. 370 2007 Act, s 21(7). See [4.740]. 371 2007 Act, s 21(8). See [4.750]. 372 See 2007 Act, s 21(3) – (8).

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entitled to apply for citizenship by registration during the period from 1948 to 1974, but did not, cannot retrospectively apply under those sections. Any person seeking to apply for citizenship by application must look at the provisions at the time of the application. The term “naturalisation” is often used as a synonym for citizenship by grant or conferral and the word itself has strong implications regarding assimilation and multiculturalism. “Naturalisation” also means “to make natural or familiar”.373 From 26 January 1949 until 1 June 1974, Div 3 of Pt III of the Australian Citizenship Act 1948 (Cth) was titled “Citizenship by Naturalisation”. During that period, Div 2 of Pt III of the 1948 Act dealt with “Citizenship by Registration”. From 1 May 1970 to 1 December 1973, the concept of “Citizenship by Notification” existed in ss 11A to 11C of the 1948 Act. From 1 June 1974, the concepts of citizenship by registration and naturalisation were abandoned, and Div 2 of Pt III of the 1948 Act was called “Grants of Australian Citizenship” until 30 June 2007. Since 1 July 2007, the terminology has been that of citizenship by conferral, and subdiv B of Div 2 (“Acquisition of Australian Citizenship by Application”) of Pt 2 of the 2007 Act has been titled “Citizenship by Conferral”. Citizenship by registration or naturalisation, 26 January 1949 to 1 June 1974 [4.550] When the 1948 Act first came into operation in 1949, and until Act No 99 of 1973, which came into effect on 1 June 1974, the 1948 Act provided for citizenship by registration and citizenship by naturalisation. The process of citizenship by registration was only available to citizens of Commonwealth countries and Ireland. Aliens and protected persons could gain Australian citizenship through the process of citizenship by naturalisation. With respect to citizenship by registration, s 12 provided that the Minister may grant Australian citizenship to a citizen of a country to which s 7 of the 1948 Act applied,374 or an Irish citizen, if that person: (a) is of full age and of full capacity;375 (b) is capable of understanding the nature of the application;376 (c) has resided in Australia or New Guinea, or partly in Australia and partly in New Guinea, for not less that five years during the eight years immediately preceding the date of the application/377 the grant of the certificate378 or, in such specified cases as the Minister, upon application in the prescribed manner, approves, for such shorter period (not being less than twelve months) as the Minister allows; 373 See The Shorter Oxford English Dictionary (1984 edition) (first published 1933). 374 That is, those countries listed as Commonwealth countries as described at [4.170]. 375 The italicised text was removed by s 9 of Act No 22 of 1969, effective 4 June 1969. 376 The italicised text was inserted by s 9 of Act No 22 of 1969, effective 4 June 1969. 377 The italicised words were deleted by s 9 of Act No 1 of 1955, effective 1 May 1955. 378 The italicised words were added by s 9 of Act No 1 of 1955, effective 1 May 1955.

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(d) is of good character; (e) has an adequate knowledge of the English language, if he has not such a knowledge, that he has resided in Australia or New Guinea, for a continuous period of not less than twenty years; (f) has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and (g) intends, if registered, to reside or379 to continue to reside in Australia or New Guinea, or to enter or continue in the service under an Australian Government, in the service of an international organisation of which the Australian Government, is a member, or service in the employment of a person, society, company or body of persons resident or established in Australia or New Guinea.

Thus, this section privileged members of the Commonwealth countries and Ireland and made no provision for applications by aliens. Special provision was also made for the children of Australian citizens380 who had obviously not qualified for citizenship by descent to be exempt from s 12(1)(aa), (d) and (e) from 4 June 1969. From that date until 1 June 1974, people who were 60, or who satisfied the Minister that they were permanently suffering from a loss of hearing, speech or sight, did not have to satisfy the requirements of s 12(d) and (e). An exception to s 12(1)(b) also applied to persons who had completed not less than three months service in the permanent forces of the Commonwealth;381 or who had been discharged before completing three months service due to being medically unfit.382 From 26 January 1949 until 11 May 1955, the Minister also had discretion to grant a certificate of registration to: • a citizen of a s 7 country; or • an Irish citizen who was not of full age; or • a woman married to an Australian citizen residing with her husband in Australia or New Guinea as a permanent resident. In that same period, the Minister could also include in a certificate of registration granted under the Act the names of any children not of full age of whom the grantee was the responsible parent or guardian.383 From 1955, the Minister’s existing discretion to grant a certificate of Australian citizenship to a citizen of a s 7 country, or an Irish citizen who was not of full age384 was expanded to include: • a wife or widow, or husband or widower; or 379 The italicised text was inserted by s 3 of Act No 11 of 1967, effective 24 May 1967. 380 The parents may be alive or dead. 381 1948 Act, s 12(1A)(a), which operated from 24 May 1967 until 1 June 1974. 382 1948 Act, s 12(1)(b), which operated from 24 May 1967 until 1 June 1974. 383 1948 Act, s 12(3). 384 1948 Act, s 12(2) and (3).

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• an Australian citizen or a person who would, but for his or her death, have become an Australian citizen under s 25385 of the 1948 Act; or • a person who was formerly an Australian citizen or was born in Australia. The Minister could also include at the time of the granting of the certificate, or by later amendment, the name of a child who had not attained the age of 16 and of whom the grantee was the responsible parent or guardian.386 In contrast, aliens or protected persons had to seek citizenship by naturalisation under s 14 of the 1948 Act. They had to wait at least one year after entry into Australia or New Guinea and then they had to make a declaration of an intention to apply for the grant of a certificate of naturalisation as an Australian citizen.387 After that declaration, they then had to make an application for the grant of the certificate not earlier than two years and not later than seven years after the making of that declaration of intention.388 In s 15, the 1948 Act provided that the Minister could grant a certificate of Australian citizenship to an alien or protected person if that person had: • made the application in accordance with s 14; • complied with the corresponding paras of s 12,389 as set out above. In other words, that the person had: • resided continuously in Australia or New Guinea, or partly in Australia or partly in New Guinea, throughout the period of one year immediately preceding the application/grant of the certificate;390 • in addition to that residence, resided in Australia or New Guinea or partly in Australia and partly in New Guinea, or had served under an Australian Government or partly each of the above, for periods amounting in the aggregate to not less than four years in the eight years preceding that date.391 The Minister had some discretion to take into account residence in the period earlier than eight years preceding the date of the application.392 Michael Pryles argues that this distinction between aliens and British subjects was consistent with the intentions of the framers of the common 385 This was the transitional provision, discussed above at [4.400]. 386 1948 Act, s 12(2) and (3). 387 From 1 May 1955 the wording was changed to “the grant of a certificate of Australian citizenship”. 388 1948 Act, s 14(3) allowed the Minister to exempt an alien from these requirements in certain circumstances. 389 1948 Act, s 12(1)(a), (aa), (c), (d), (e) and (f). 390 The grant of the certificate replaced the application according to s 6 of Act No 1 of 1955, effective 11 May 1955. 391 1948 Act, s 15(1)(b) and (c). 392 1948 Act, s 15(2).

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Commonwealth scheme devised in 1947, which formed the basis for the Australian legislation. It was intended that citizens of a Commonwealth country should be able to acquire citizenship in another Commonwealth country on more favourable terms than would aliens. He also argues there may have been a reluctance to use the term “naturalisation” for those who were already British subjects.393 A person to whom a certificate of Australian citizenship had been granted was deemed to be an Australian citizen as from the date upon which the certificate was granted.394 Citizenship by notification, 1 May 1970 to 1 December 1973 [4.560] From 1 May 1970 until 1 December 1973, in addition to the processes of citizenship by registration and naturalisation, there was also a form of citizenship by notification.395 This provided a straightforward way for citizens of countries to which s 7 of the 1948 Act applied to become Australian citizens. These people, who: • were ordinarily resident in Australia or New Guinea (or partly in Australia and partly in New Guinea) for the five years preceding the giving of the notice under the section; and • had entered Australia or had last entered Australia before 1 June 1959; and • did not hold a temporary entry permit; and • were not deportees or prohibited immigrants; and • were not persons whose deportation may be ordered by the Minister due to conviction in Australia pursuant to s 13 of the Migration Act 1958 (Cth), could notify the Secretary of the Department that they fulfilled the requirements and that they desired to become Australian citizens. On being satisfied that a person fulfilled the criteria, the Secretary could issue an evidentiary certificate of the person as an Australian citizen. Essentially, this provided for automatic citizenship if the person satisfied the criteria above.

393 Pryles, Australian Citizenship Law (1981) pp 74–75. Jordens discusses this unequal access to citizenship in her chapter, “Legal and Non-legal Aspects of Immigration” in Rubenstein (ed), Individual, Community, Nation: 50 years of Australian Citizenship (2000) pp 85–88. 394 1948 Act, s 13(1). Note, however, the case of Leung v Minister for Immigration and Multicultural Affairs (1997) 26 AAR 192. 395 1948 Act, ss 11A, 11B and 11C.

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Citizenship by grant, 1 June 1974 to 21 November 1984 [4.570] After 1 June 1974, no distinction was made between aliens, protected persons and British subjects seeking to become Australian citizens. The division applied to everyone who was not an Australian citizen.396 A declaration of intention to apply for the grant of Australian citizenship could not be made earlier than one year after entry into Australia.397 Once the declaration of intention was made, the Minister had to be satisfied of the following elements outlined in s 14(1) of the 1948 Act: The Minister may grant a certificate of Australian citizenship to a person who has made an application in accordance with section 13 and satisfies the Minister – (a) that he is of full age; (b) that he is capable of understanding the nature of the application; (c) that he has resided continuously in Australia, or New Guinea, or partly in Australia or New Guinea, throughout the period of one year immediately preceding the date of the grant of his certificate; (d) that, in addition to the residence required under para (c), has resided in Australia or New Guinea, or partly in Australia and partly in New Guinea, or has had service under an Australian Government, or partly such residence and partly such service, for periods amounting in the aggregate to not less than two years during the eight years immediately preceding that date; (e) that he is of good character; (f) that he has an adequate knowledge of the English language; (g) that he has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and (h) that he intends, if granted a certificate of Australian citizenship, to reside or to continue to reside in Australia or New Guinea or to enter or continue service under an Australian Government, in the service of an international organisation of which the Australian Government is a member, or service under the employment of a person, society, company or body of persons resident or established in Australia or New Guinea.

Exceptions to paras (b), (f) and (g) applied to a person whose parent was an Australian citizen398 and to paras (c) and (d) to persons who had been in the permanent forces of the Commonwealth for more than three months or who had been discharged before that time due to being medically unfit.399 The Minister also had discretion to allow for periods of residence earlier than the eight years preceding the application for the purpose of 396 Section 12 was changed to read: “This Division does not apply to a person who is an Australian citizen.” 397 1948 Act, s 13(1). 398 1948 Act, s 14(2). 399 1948 Act, s 14(3).

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para (d).400 In particular, there remained for two years further discriminatory discretion towards Commonwealth country citizens, Irish citizens and persons with the status of British subject without citizenship in allowing the Minister to consider their applications for citizenship without fulfilling para (d).401 Exceptions to paras (f) and (g) also extended to people who were 60 and over or who satisfied the Minister that they permanently suffered from a substantial impairment of hearing, speech or sight.402 Furthermore, notwithstanding the provisions in s 14(1), the Minister was able to consider applications from people who had not turned 21 or who were the spouse of an Australian citizen or who were 16 and the spouse of a person granted citizenship, or who were formerly Australian citizens or born in Australia.403 The Minister was also able to include in such a certificate the name of a child who had not reached the age of 16 and of whom the grantee was the responsible parent or guardian.404 Citizenship by grant, 22 November 1984 to 30 June 2007 [4.580] Sections 13 and 14 of the 1948 Act405 were replaced in 1984.406 The eligibility provisions previously in s 14 were contained in the new s 13. The new s 14 allowed the Minister to defer consideration of applications under s 13 if it was more likely that citizenship would be granted following changed circumstances in the future. The new s 13 was more inclusive than the previous forms of the section discussed above.407 Immediately before the introduction of the 2007 Act, the s 13 stated: (1) Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form,408 grant a certificate of Australian citizenship409 to a person who satisfies the Minister that: 400 1948 Act, s 14(4). 401 1948 Act, s 14(5) and (6). 402 1948 Act, s 14(7). 403 1948 Act, s 14(8). 404 1948 Act, s 14(9). 405 From 1973 to 1984, s 13 provided for individuals to make a declaration in the approved form of their intention to apply for a grant of Australian citizenship, or to apply for a grant of citizenship (whether or not the declaration was previously made). 406 See Australian Citizenship Amendment Act 1984 (Cth) s 11. 407 Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) noted (p 25 at [2.66]) that there have been progressive changes over time based on the principle of encouraging persons to acquire citizenship. 408 Section 31 of the 1948 Act states that the Minister must not have considered, or otherwise dealt with, an application under the 1948 Act unless: (a) the application is on an approved form and in accordance with the Regulations; and (b) any fee payable in respect of the application is paid. See further reg 9 of the Australian Citizenship Regulations 1960 (Cth) (SR No 62) as amended. The Australian Encyclopedia of Forms and Precedents (3rd ed, 1998) Vol 24 includes Form 124B, “Application for grant of

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(a) the person is a permanent resident; (b) the person has attained the age of 18 years; (c) the person understands the nature of the application; (d) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application; (e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application; (f) the person is of good character; (g) the person possesses a basic knowledge of the English language;410 (h) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and (j) if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain close and continuing association with Australia.

This was, and continues in its 2007 iteration to be, a transparent area of the Act for it explicitly asserts who may apply to become a member of the Australian community. Some of the tribunal decisions analysing the application of this section are explained further below in [4.590], as discussion of the operation of s 13 is included for historical context in the examination of the current conferral framework in the following sections. Citizenship by conferral – general eligibility [4.590] The first situation in which a person may become an Australian citizen by conferral is if the person satisfies the general eligibility criteria and successfully completes a citizenship test. The general eligibility criteria are set out in s 21(2). Section 21(2) states: A person is eligible to become an Australian citizen if the Minister is satisfied that the person: Australian Citizenship” at [35.5]. The Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001, stated (at [3.2.1]): “Generally, the approved form for applications under s 13 is Form 124 ‘Application for grant of Australian citizenship’. The exception to this relates to an application for inclusion in the certificate of a responsible parent under s 13(10), where it is made after grant to the responsible parent. In this case, the approved form is Form 125, (‘Application to amend a certificate of Australian citizenship to include names of children under 16 years of age’).” 409 Section 15 stated that the grant of a certificate of Australian citizenship did not of itself make the person an Australian citizen; the person also needed to make a pledge of commitment as set out by the Act. See also Leung v Minister for Immigration and Multicultural Affairs (1997) 26 AAR 192 (decision of the Full Court of the Federal Court). 410 An average of some 470 applications are deferred each year to allow applicants to improve their proficiency in the English language: Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 50.

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(a) is aged 18 or over at the time the person made the application; and (b) is a permanent resident: (i) at the time the person made the application; and (ii) at the time of the Minister’s decision on the application; and (c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and (d) understands the nature of an application under subsection (1); and (e) possesses a basic knowledge of the English language; and (f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and (g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and (h) is of good character at the time of the Minister’s decision on the application.

The criteria in s 21(2), and its predecessor s 13 of the 1948 Act, reflect upon citizenship as a normative notion.411 As Karen Slawner explains, the “legal definitions of citizenship always incorporate what is considered to be desirable activity”.412 For instance, the requirements in paras (a), (b) and (d), that the applicant be over 18, a permanent resident, and able to understand the nature of the application, reflect the importance placed upon a conscious acceptance or consent to becoming a member of the community.413 In addition, the person must have lived in Australia for a period of four years preceding the application, and this must have included a period of 12 months as a permanent resident immediately preceding the application.414 This emphasises the value of residence in a community as an expression of membership. Further, the person has to be of good character, have a basic knowledge of English and an adequate knowledge of the responsibilities and privileges of Australian citizenship. Since 1 October 2007, a key determiner of this form of general eligibility has been successful completion of a citizenship test.415 Under the 2007 Act, paras (d), (e) and (f) are taken to be satisfied 411 See the discussion in Chapter 1 at [1.20]. 412 Slawner, “Uncivil Society: Liberalism, Hermeneutics, and “Good Citizenship”” in Slawner and Denham (eds), Citizenship after Liberalism (1998) p 83. 413 For some interesting literature on the notion of consent and citizenship, see Klusmeyer, Between Consent and Descent: Conceptions of Democratic Citizenship (1996); Schuck and Smith, Citizenship without Consent (1985). 414 The residence requirements are set out in ss 22, 22A, 22B and 23. These sections provide for periods of temporary absence from Australia, partial exemptions, ministerial discretion to allow a lesser period, and lesser periods for persons engaged in activities beneficial to Australia or in the Australian defence force. See further discussion at [4.760]. 415 Note that completion of the citizenship test is not required for the other categories of eligibility for citizenship by conferral.

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only if the applicant is eligible to take, and successfully completes, a citizenship test.416 The citizenship test is a multiple-choice test in English, designed to assess an applicant’s knowledge of Australia, the responsibilities and privileges of citizenship, and basic English.417 These requirements reflect further aspects of the people we want to include as fellow members – that is, people whom we trust and respect, people with whom we can communicate, and people who will understand what we expect of them as fellow members. Moreover, the applicant must be likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia.418 Each of these factors tells us something about citizenship as a legal status representing a form of membership of the community.419 The application of the above factors has sometimes produced anomalous results, thus highlighting the difference between the formal legal requirements and the broader notion of being a member of the Australian community. For instance, in the Federal Court case of Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 (Roberts), the applicant for citizenship had lived legally in Australia for more than 20 years but had not taken out formal citizenship. He had gone overseas for work and, at the time of making his application for citizenship, did not fulfil the residence requirements of 12 months within the previous two years and two years within the previous five years in s 13(1)(d) and (e) of the 1948 Act. Einfeld J stated (at 86): [I]it is quite anomalous, even a trifle absurd, that a person who has lived legally in Australia for more than 20 years and is to all intents and purposes an Australian has to pass arbitrary tests for citizenship. It seems at least odd for 416 Section 21(2A) of the 2007 Act. See further discussion at [4.610]. 417 Commonwealth of Australia, Department of Immigration and Citizenship, Australian Citizenship: Our Common Bond (2014) p 4: https://www.border.gov.au/Citizenship/ Documents/our-common-bond-2014.pdf. Discussed further at [4.610]. 418 See 2007 Act, s 21(2). 419 See Catherine Dauvergne’s analysis of these sections regarding women and citizenship in Dauvergne, “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280. Catherine Dauvergne also argues that migration law is more important than citizenship law for the question of who can become an Australian citizen since the detailed criteria regulating permanent residency of migration laws are the most significant barriers to full membership in the polity: see Dauvergne, “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23 and “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280. See also Rubenstein, “Epilogue: Reflections on Women and Leadership through the Prism of Citizenship” in Damousi, Rubenstein and Tomsic (eds), Diversity in Leadership: Australian Women, Past and Present (2014) pp 335–339. There is also scholarship on this area in the US: see Neuman, “Justifying US Naturalization Policies” (1994) 35 Virginia Journal of International Law 237; Spiro, “Questioning Barriers to Naturalization” (1999) 13 Georgetown Immigration Law Journal 479; and Kristin Collins, “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation” (2014) 123 Yale Law Journal 2134.

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example that an Australian in all but law who leaves the country for work here, loses the benefit of his loyalty and connection to Australia over a lifetime in counting towards citizenship.420

The Australian Citizenship Council reviewed these core criteria in its Report, Australian Citizenship for a New Century, and no major substantive changes were recommended.421 Accordingly, s 21(2) of the 2007 Act largely retained the criteria contained in s 13 of the 1948 Act, with the notable exceptions of changes to the residence requirements and the introduction of the citizenship test from 1 October 2007. These changes, and other relevant historical material, will be discussed in more detail below, as each of the paragraphs of s 21(2) are examined in turn. Person must be a permanent resident and 18 years of age: s 21(2)(a), (b) [4.600] The 2007 Act clarified that a person applying for a conferral of Australian citizenship must be 18 or over at time of application.422 It also clarified that the applicant must be a permanent resident both at the time of the application and at the time of the Minister’s decision.423 The term “permanent resident” is defined in s 5(1) of the Act. For the purposes of the Act, a person is a permanent resident at a particular time only if: (a) the person is present in Australia at that time and holds a permanent visa at that time; or (b) both: (i) the person is not present in Australia at that time and holds a permanent visa at that time; and (ii) the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or (c) the person is covered by a determination in force under subsection (2) at that time.

Under s 5(2), the Minister may determine by legislative instrument that the subsection applies to individuals who hold a special category visa424 420 See earlier discussion in Chapter 1 at [1.10] about the distinction between formal and normative notions of citizenship. 421 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) pp 43–59. This was accepted by the government in Australian Citizenship … A Common Bond, Government response to the Report of the Australian Citizenship Council (May 2001) p 17. 422 2007 Act, s 21(2)(a). 423 2007 Act, s 21(2)(b). 424 The term “special category visa” has the meaning given to it in s 32 of the Migration Act 1958 (Cth): 2007 Act, s 3. This is a temporary visa, generally granted to New Zealand citizens upon entry to Australia.

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or a special purpose visa,425 who have held a special category visa, or who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands. The Minister may specify additional requirements or the period for which the subsection applies. The Minister made such a determination on 27 June 2007, determining that certain New Zealand citizens holding special category visas, and certain persons present in Norfolk Island or the Territory of Cocos (Keeling) Islands, are permanent residents.426 The definition of “permanent resident” in s 5A of the 1948 Act was much more complicated. The section contained the definition for different periods of time and excluded persons on specific visas from fulfilling the definition. The complication of the provision related to the changes in the Migration Act 1958 (Cth) in the definition of “unlawful non-citizens” (also known as “prohibited immigrants”, then “prohibited non-citizens”, and “illegal entrants”).427 The section was also complicated for New Zealand citizens who live in Australia. The departmental guidelines set out the specific intricacies for New Zealanders. In essence, though, under both the 1948 Act and its 2007 successor, a permanent resident is someone who is not subject to any time limitation on their presence in Australia by virtue of the Migration Act 1958 (Cth). Person understands the nature of the application; and possesses a basic knowledge of English; and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship: s 21(2)(d), (e), (f) [4.610] The requirements of s 21(2)(d), (e) and (f) are grouped together for analysis because they are grouped together by s 21(2A) of the 2007 Act. Since 1 October 2007, s 21(2A) has provided that the only way the Minister can be satisfied that the applicant under the general eligibility provisions meets the requirements of s 21(2)(d), (e) and (f) is that the person has successfully completed a test approved in a determination (made by the Minister under s 23A).428 The citizenship test is only relevant to those applying for a conferral of Australian citizenship under

425 The term “special purpose visa” has the meaning given to it in s 33 of the Migration Act 1958 (Cth): 2007 Act, s 3. This is a temporary visa, generally granted to foreign military personnel entering Australia. 426 See Commonwealth of Australia, Australian Citizenship (Permanent Resident Status), Determination under Subsection 5(2) (Kevin Andrews, IMMI 07/037, 27 June 2007) p 5. 427 Section 5A of the 1948 Act was complemented by regs 5 and 21A of the Australian Citizenship Regulations 1960 (Cth) (SR No 62) as amended. 428 In Jackson and Minister for Immigration and Citizenship (2011) 54 AAR 149; [2011] AATA 60, the Minister had rejected the applicant’s citizenship application on the grounds that he could not be sure that the applicant satisfied s 21(2)(d) to (f) because he had not sat a citizenship test as prescribed by s 21(2A). The AAT remitted the application to the Minister and citizenship was granted after the applicant passed the test. On timing of the citizenship test, see below.

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the general eligibility provisions in s 21(2).429 The introduction of the citizenship test was a major change to the operation of s 21(2) since the introduction of the 1948 Act. In addition, at the time of the introduction of the citizenship test, a further requirement that the applicant have adequate knowledge of Australia, as well as of the rights and responsibilities of Australian citizenship, was inserted into para (f).430 An applicant under s 21(2) is eligible to take the citizenship test once they have submitted a valid application431 under s 21 of the Act.432 The test consists of 20 multiple choice questions, drawn from a larger pool of questions and based upon information contained in a resource booklet that covers Australia and its people, Australia’s democratic beliefs, rights and liberties, and government and the law in Australia.433 A person’s basic knowledge of English is assessed by their ability to pass the test in English. The aim of the test is to: encourage prospective citizens to obtain the knowledge they need to support successful integration into Australian society … By having the knowledge and more importantly an appreciation of the events that have shaped this country and the institutions that have been established as a result will help foster a nation of people with a common purpose.434

429 Individuals applying for a conferral of citizenship under the special eligibility provisions – that is, individuals with a permanent or enduring physical or mental incapacity, people aged 60 or over or with a hearing, speech or sight impairment, children aged under 18, individuals born to former Australian citizens, people born in Papua, and stateless persons, are not required to sit a citizenship test. 430 These changes were inserted by the Australian Citizenship Amendment (Citizenship Testing) Act 2007 (Cth) with effect from 1 October 2007. The Australian Citizenship Test Review Committee, in its report, Moving Forward … Improving Pathways to Citizenship (August 2008) p 25, recommended that “[t]he legislative requirement to have an ‘adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship’ be linked to concepts and information people need to understand in order to make the Pledge of Commitment.” The Australian Government accepted this recommendation. The pledge of commitment is discussed at [4.120]. 431 That complies with the requirements set out in s 46 of the 2007 Act. 432 To be eligible to sit the citizenship test, applicants must be permanent residents, have satisfied the Minister of their identity and provided the Minister with a photograph of their face: see Commonwealth of Australia, Approval of a Citizenship Test (Determination under Section 23A) (Chris Bowen, IMMI 11/088, 1 March 2012) p 5. In addition, since 9 November 2009, applicants must submit a valid application for a conferral of Australian citizenship before they are eligible to sit the citizenship test: 2007 Act, s 21(2A) as amended by the Australian Citizenship Amendment (Citizenship Test and Other Measures) Act 2009 (Cth) Sch 1. Before that date, the citizenship test must have been passed before an application under s 21(2) could be submitted. 433 For information on the citizenship test and practice tests, see the Department’s website: https://www.border.gov.au/Trav/Citi/pathways-processes/Citizenship-test/ Australian-citizenship-test-resource. 434 Australia, House of Representatives, Debates (30 May 2007) p 4 (Kevin Andrews).

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The government also considered that a new citizen’s ability to pass a formal citizenship test sends a clear signal to the broader community that they “know enough about our way of life and commit to it”.435 While the introduction of the citizenship test did not change the requirements in the Act, it changed the way they were assessed. The 2007 Act did not substantively alter the requirements contained in s 13(1)(c), (g) and (h) of the 1948 Act that had been contained in that Act since the introduction of the concept of “citizenship by grant” into s 14 in 1974, reflecting the enduring importance that is placed upon a conscious acceptance or consent to becoming a member of the community.436 Before 1 October 2007, s 21(2)(d), (e) and (f) (and their predecessors in s 13(1)(c), (g) and (h) of the 1948 Act) were assessed verbally at a citizenship interview. Applicants were asked to answer questions in simple English, such as their personal particulars and how long they had lived in Australia. To meet the requirements of knowledge of the responsibilities and privileges of Australian citizenship, applicants answered yes or no to factual questions on the subject.437 In April 2008, the Minister for Immigration and Citizenship appointed an independent committee to undertake a review of the citizenship test since its introduction in October 2007. The objective of the Australian Citizenship Test Review Committee was to identify any unintended consequences arising from the introduction of the citizenship test.438 The government adopted a number of the Committee’s recommendations, amending the test to focus on the pledge of commitment that new Australians are required to make when becoming citizens,439 rewriting the citizenship resource book in plain English, and clearly dividing it into testable and non-testable sections. 435 Australia, House of Representatives, Debates (30 May 2007) p 4 (Kevin Andrews). 436 The AAT considered s 13(1)(g) and (h) in Liu and Minister for Immigration and Multicultural Affairs [1999] AATA 251. The applicant used an interpreter for the purpose of the hearing; however, the tribunal held that he probably met the English language requirements. Despite being able to answer questions about the rights and responsibilities of citizenship, the tribunal found answers “parrot fashion to a series of questions and answers previously provided, and learned by rote, does not … constitute knowledge of the responsibilities and privileges of Australian citizenship”: at [12]. For some interesting literature on the notion of consent and citizenship, see Klusmeyer, Between Consent and Descent: Conceptions of Democratic Citizenship (1996); Schuck and Smith, Citizenship without Consent (1985). 437 For a discussion of the history of citizenship testing in Australia, see Australian Citizenship Test Review Committee, Moving Forward … Improving Pathways to Citizenship (August 2008) p 7. 438 The Australian Citizenship Test Review Committee’s report, Moving Forward … Improving Pathways to Citizenship, was published in August 2008. 439 The pledge of commitment is discussed at [4.120]. The Australian Citizenship Test Review Committee recommended linking the legislative requirement to have an “adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship” with the concepts and information that people need to understand in order to make the Pledge of Commitment. The government supported

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A citizenship course was also developed in response to the Committee’s recommendations. The course, based on the resource book, is designed to assist disadvantaged migrants and refugees who understand English but whose level of literacy may have prevented them from undertaking the computer-based test. Minister Chris Evans stated that “[t]he review clearly identified a need to remove unintended barriers to citizenship for vulnerable groups of people and the changes will ensure the test does not disadvantage these people who most need our support.”440 However, the government rejected the Committee’s recommendation for a citizenship education program in languages other than English, on the grounds that “[m]igrants with better English are more successful at settling and finding employment” in Australia.441 Accordingly, English language skills remain a central and essential aspect of obtaining a conferral of Australian citizenship. Residence and association with Australia: s 21(2)(c), (g) [4.620] Section 21(2)(c) requires that at the time of making an application under s 21(2), the applicant must satisfy either the general residence requirement in s 22 of the Act, the special residence requirement in s 22A or 22B, or the defence service requirement in s 23. The residence requirements are addressed at [4.760]. In addition to residing in Australia before the application, s 21(2)(g) requires the person to continue to reside in Australia, or maintain a close and continuing association with Australia, before the application will be approved. This provision replicates s 13(1)(j) of the 1948 Act.442 The Citizenship Policy sets out the factors that may contribute to a close and this recommendation, stating that it “strongly supports the Pledge being the centrepiece of Australian citizenship testing. The Pledge is about our democratic beliefs, our laws and the rights, responsibilities and privileges of Australian citizenship. Understanding civic responsibilities and the meaning of citizenship is of fundamental importance to all Australians and is a critical factor in nation-building in our culturally diverse society. It is crucial that prospective citizens understand these concepts. The new test will focus on these rather than being a general knowledge quiz about Australia”: see Department of Immigration and Citizenship, Australian Citizenship Test Review Committee, Recommendations and Government Responses (2008): https:// www.border.gov.au/Citizenship/Documents/recommendations-governmentresponse.pdf. 440 Senator Chris Evans, “New Citizenship Test to Focus on Responsibilities and Privileges”, Media Release (22 November 2008): http://pandora.nla.gov.au/pan/ 67564/20100913-1000/www.minister.immi.gov.au/media/media-releases/2008/ ce08110.html. 441 Senator Chris Evans, “New Citizenship Test to Focus on Responsibilities and Privileges”, Media Release (22 November 2008). 442 In Alexios Delis v Department of Immigration and Multicultural Affairs (unreported, AAT, Decision No Q96/206, 3 February 1997), the tribunal determined that an applicant did not satisfy s 13(1)(j) because he did not intend to take up residence in Australia in the immediate future and his continuing relationship with Australia was tenuous. The tribunal cited the earlier decision in Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516 where McMahon DP stated that the term “likely to reside in Australia” cannot mean “likely to take up residence in 18 months or 2 years” or “likely

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continuing association with Australia, which include the applicant having an Australian citizen spouse, de facto partner or children, having extended family in Australia, time spent in Australia, and evidence of employment, property ownership and income tax payments in Australia.443 The citizenship application form contains a declaration of intention to reside in Australia, or to maintain a close and continuing association with Australia. The Citizenship Policy states that this declaration “would generally be sufficient evidence of the applicant’s intentions unless there is information to the contrary”.444 Moreover, it is worth noting that s 24(5) prevents the Minister from approving a permanent resident’s application for Australian citizenship under s 21(2) if that person is not present in Australia unless the Minister is satisfied that the person satisfied a special residence requirement in s 22A or 22B, the person is a spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen, or the person is in an interdependent relationship.445 This again stresses the importance of a physical and continuing connection to Australia. Good character: s 21(2)(h) [4.630] To be eligible to apply for a conferral of Australian citizenship under s 21(2), a person must be of good character. The term “good character” is discussed at [4.1060]. Citizenship by conferral – permanent or enduring physical or mental incapacity [4.640] The second situation in which a person may become an Australian citizen by conferral is set out in s 21(3). This situation effectively operates as an exemption to the general eligibility requirements in s 21(2) and applies when the applicant has a permanent or enduring physical or mental incapacity. Section 21(3) states: A person is eligible to become an Australian citizen if the Minister is satisfied that the person: (a) is aged 18 or over at the time the person made the application;446 and (b) is a permanent resident: (i) at the time the person made the application; and to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found”. It must mean “likely to reside in Australian immediately or very soon after”. This requirement is also relevant to applicants who seek to rely upon s 13(4)(b)(i) and the Minister’s discretion in treating periods outside Australia as if they were in Australia – those applicants must also satisfy s 13(1)(j). 443 Citizenship Policy (Cth) Ch7 pp 69–71. 444 Citizenship Policy (Cth) Ch 7 p 70. 445 For a discussion of the substance of these requirements, see [4.760]. 446 The discussion of this requirement in the context of the general eligibility provision s 21(2) is applicable to s 21(3): see [4.600].

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(ii) at the time of the Minister’s decision on the application;447 and (c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application;448 and (d) has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person: (i) is not capable of understanding the nature of the application at that time; or (ii) is not capable of demonstrating a basic knowledge of the English language at that time; or (iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and (e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved;449 and (f) is of good character at the time of the Minister’s decision on the application.450

The eligibility requirements in s 21(3) largely mirror the general requirements in s 21(2), but differ in one important respect: the applicant is not required to satisfy the Minister that they understand the nature of the application, have a basic knowledge of English or an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship as required by s 21(2)(d), (e) and (f). This means that applicants under s 21(3) are not required to sit the citizenship test. Instead, applicants must satisfy the requirements of s 21(3)(d). Background and operation of current s 21(3)(d) [4.650] Applicants for a conferral of Australian citizenship under s 21(3) must satisfy the Minister that they have a permanent or enduring physical or mental incapacity at the time of making their application for Australian citizenship.451 This incapacity must mean that the applicant is not capable of understanding the nature of the application, or of demonstrating a basic knowledge of the English language and of the responsibilities and privileges of Australian citizenship at that time.452 This requirement was clarified by an amendment to s 21(3) made on 9 November 2009 following the Australian Citizenship Test Review 447 The discussion of this requirement in the context of the general eligibility provision s 21(2) is applicable to s 21(3): see [4.600]. 448 Residence requirements are discussed at [4.760]. 449 Note the impact of s 24(5), discussed at [4.620]. 450 Good character is discussed at [4.1060]. 451 2007 Act, s 21(3)(d). 452 2007 Act, s 21(3)(d).

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Committee’s recommendations.453 Prior to the amendment, s 21(3)(d) stated that a person was eligible for a conferral of Australian citizenship if the person had “a permanent physical or mental incapacity, at the time the person made the application, that means the person is not capable of understanding the nature of the application at that time”.454 The Committee was concerned that this provision may not be broad enough to cover applicants who had been traumatised and were not in a fit mental state to sit a citizenship exam, but who nevertheless understood the nature of their citizenship application. It received advice that: many survivors of torture and trauma suffer from disorders that impair their ability to learn and acquire new skills. Many display severe symptoms … [that] have a severe impact on their ability to retain and recall information.455

The Committee considered that “mental incapacity” operated as an exemption only in relation to the requirement to understand the nature of the application in s 21(2)(d), but did not encompass the other requirements relevant to citizenship testing in s 21(2)(e) and (f). In addition, the Committee thought that the use of “permanent” and “at that time” were contradictory when discussing mental incapacity, and took the view that physical and mental incapacity may not need to be permanent to satisfy the principle underpinning this exemption to the general eligibility requirements in s 21(2).456 Accordingly, the Committee recommended that s 21(3)(d): be amended in the spirit of the Act to include an inability to demonstrate a basic knowledge of English and an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship due to mental incapacity, resulting in those individuals not being required to sit a test.457

The government supported this recommendation, amending s 21(3)(d) to “ensure that the test does not disadvantage vulnerable people who most need our support”.458 Now, s 21(3)(d) directly corresponds with an individual’s inability to satisfy the general eligibility requirements in s 21(2)(d), (e) and (f). Further, the physical or mental incapacity need not be permanent; it can instead be enduring. 453 Australian Citizenship Test Review Committee, Moving Forward … Improving Pathways to Citizenship (August 2008) p 34. The changes were made by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth) Sch 1 para 3. 454 Emphasis added. 455 Australian Citizenship Test Review Committee, Moving Forward … Improving Pathways to Citizenship (August 2008) p 34. 456 Australian Citizenship Test Review Committee, Moving Forward … Improving Pathways to Citizenship (August 2008) p 35. 457 Australian Citizenship Test Review Committee, Moving Forward … Improving Pathways to Citizenship (August 2008) p 38. 458 Department of Immigration and Citizenship, Australian Citizenship Test Review Committee, Recommendations and Government Responses (2008): https:// www.border.gov.au/Citizenship/Documents/recommendations-governmentresponse.pdf.

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Permanent or enduring incapacity [4.660] An applicant’s incapacity must be permanent or enduring. The Citizenship Policy sets out that an enduring incapacity: is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship.459

Examples may include a person suffering from schizophrenia,460 longterm depression, post-traumatic stress disorder, or where a person has suffered a stroke.461 The Citizenship Policy states that a “temporary physical or mental condition does not meet the requirement”.462 Proof of incapacity [4.670] Applicants must provide evidence from a specialist, following referral from their General Practitioner, of their physical or mental incapacity. The Citizenship Policy anticipates that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.463 They also set out the qualifications required of specialists providing evidence of a mental or physical incapacity.464 Citizenship by conferral – person aged 60 or over or has a hearing, speech or sight impediment [4.680] The third situation in which a person may become an Australian citizen by conferral is set out in s 21(4). Like s 21(3), this situation effectively operates as an exemption to the general eligibility requirements in s 21(2) in that people who are eligible for citizenship under s 21(4) need not satisfy all of the requirements in s 21(2), including passing the citizenship test. Section 21(4) applies when the applicant is aged 60 or over, or is aged 18 or over and is suffering from a permanent loss or substantial impairment of hearing, speech or sight. Section 21(4) states: A person is eligible to become an Australian citizen if the Minister is satisfied that the person: 459 Citizenship Policy (Cth) Ch 7 p 72. 460 This was accepted as a permanent mental impairment in Re Pathmini Ravichandran and Minister for Immigration and Citizenship (2010) 52 AAR 23; [2010] AATA 463. However, the applicant’s application under s 21(3) was ultimately unsuccessful because she failed to demonstrate that she was incapable of understanding the nature of the application. 461 Citizenship Policy (Cth) Ch 7 p 72. 462 Citizenship Policy (Cth) Ch 7 p 72. 463 Citizenship Policy (Cth) Ch 7 p 73. Note that the applicant in Shao and Minister for Immigration and Citizenship [2012] AATA 709 was unsuccessful in showing an enduring incapacity. The applicant suffered from insomnia, which she claimed was exacerbated by the stress of learning English as required to sit the citizenship test. A psychiatrist she visited on one occasion diagnosed her with Major Depressive Disorder. However, this evidence was not sufficient to prove incapacity as required by s 21(3). 464 Citizenship Policy (Cth) Ch 7 pp 72–73.

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(a) is: (i) aged 60 or over at the time the person made the application; or (ii) aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; and (b) is a permanent resident: (i) at the time the person made the application; and (ii) at the time of the Minister’s decision on the application;465 and (c) understands the nature of the application at the time the person made the application; and (d) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application;466 and (e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved;467 and (f) is of good character at the time of the Minister’s decision on the application.468

Section 21(4) differs from the general eligibility requirements in s 21(2) in two key ways. First, it applies only to people who satisfy s 21(4)(a) – that is, those aged 60 or over or those who have a hearing, speech or sight impediment. Applicants aged 60 or over must provide official evidence of their age such as a birth certificate or current foreign passport.469 The hearing, speech or sight impediment must be permanent or substantial. The Citizenship Policy requires applicants to provide evidence of their impediment. This evidence may include, but is not limited to, evidence from a specialist, evidence that the applicant is registered with the Office of Hearing Services as having complex rehabilitation needs, or concession cards.470 Second, s 21(4) contains no requirement that the applicant have knowledge of English, of Australia, or of the responsibilities and privileges of Australian citizenship, as contained in the general eligibility provisions. People who apply for a conferral of Australian citizenship under s 21(4) are only required to satisfy the Minister that they understand the nature of their citizenship application. There is no requirement to sit the citizenship test. However, applicants aged 60 and 465 The discussion of this requirement in the context of the general eligibility provision s 21(2) is applicable to s 21(3): see [4.600]. 466 Residence requirements are discussed at [4.760]. 467 Note the impact of s 24(5), discussed at [4.620]. 468 Good character is discussed at [4.1060]. 469 Citizenship Policy (Cth) Ch 7 p 73. 470 Citizenship Policy (Cth) Ch 7 p 75.

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over may be required to attend an interview to confirm their identity and to demonstrate that they understand the nature of their application under s 21(4).471 Section 21(4) is the equivalent of s 13(6) and (8) of the 1948 Act. Section 13(7) provided that people over the age of 50 years did not need to possess a basic knowledge of English. The age was raised to 60 years in 2007, consistent with a recommendation of the Joint Standing Committee on Migration in 1994. This brought the exemption into line with the existing exemption for people aged 60 and over from needing to have an adequate knowledge of the responsibilities and privileges of citizenship.472 Citizenship by conferral – person aged under 18 [4.690] The fourth situation in which a person can become a citizen by conferral is in s 21(5). This section provides an avenue for children to apply for a conferral of Australian citizenship in their own right. Section 21(5) states: A person is eligible to become an Australian citizen if the Minister is satisfied that the person: (a) is aged under 18 at the time the person made the application; and (b) is a permanent resident: (i) at the time the person made the application; and (ii) at the time of the Minister’s decision on the application.

The Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed an amendment to s 21(5)(b) which would have introduced an alternative circumstance in which a person under the age of 18 would be eligible for citizenship by conferral. If it had been passed, the amendment would have enabled the Minister to prescribe a type of permanent visa under which the person would have been eligible to become an Australian citizen, provided one of their parents was an Australian citizen, even if they had not entered Australia as the holder of the permanent visa. The proposed amendment was intended to allow certain applicants under s 21(5) to be eligible for Australian citizenship without first entering Australia.473 The bill lapsed due to the 2016 federal election. Permanent residency requirement [4.700] A significant amendment to s 21(5) was made in 2009, with the addition of the legislative requirement that a child applying for citizenship by conferral under this provision be an Australian permanent 471 For detail of the circumstances in which an interview may be required, see Citizenship Policy (Cth) Ch 7 pp 73–74. 472 Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 35. 473 Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Explanatory Memorandum, p 2. If it had been passed, the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) would also have applied the character requirement to people under the age of 18: see [4.1060].

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resident. Prior to 9 November 2009, s 21(5) (and its predecessor in the 1948 Act, s 13(9)) provided that any person under the age of 18 was eligible to apply for a conferral of Australian citizenship. Now the applicant must be a permanent resident in order to be eligible to apply.474 The amendment was intended to “prevent children who are in Australia unlawfully, or who along with their families have exhausted all migration options, from applying for citizenship in an attempt to prevent their removal from Australia”.475 It was justified on the basis of “ensur[ing] the integrity and consistency of the citizenship and migration programs”476 and it brought s 21(5) into line with the eligibility provisions in s 21(2), (3) and (4), which contain a permanent residency requirement.477 Like the other eligibility provisions in s 21, s 21(5) merely sets out the requirements for eligibility to apply for a conferral of Australian citizenship. Section 24(2) of the Act gives the Minister discretion to refuse to approve a person’s application for Australian citizenship despite the person being eligible under s 21(5).478 The Citizenship Policy states that in making a decision whether to refuse or approve an application under s 21(5), “the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines”.479 Prior to the amendment, permanent residency was a requirement in the policy framework for all children applying for citizenship under s 21(5).480 However, this requirement was qualified by two important considerations. First, when the specific policy guidelines requiring residency, or the child’s parent to be an Australian citizen, were not met, a discretion remained available to the Minister to consider whether there were circumstances causing significant hardship or disadvantage to the applicant.481 “Significant” was defined in the Australian Citizenship Instructions as being “of consequence; important or momentous”; “hardship” as “conditions of life difficult to endure; something that causes suffering or privation”; and “disadvantage” as “an unfavourable circumstance, thing, person; injury, loss or detriment”.482 Thus, if an 474 2007 Act, s 21(5) as amended by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth) Sch 1. 475 Australia, Senate, Debates (25 June 2009) p 4264 (Penny Wong). 476 Australia, Senate, Debates (25 June 2009) p 4264 (Penny Wong). 477 2007 Act, s 21(2) – (4). 478 Section 24(2) operates in this way with respect to applications under s 21(2), (3), (4), (5), (6) and (7). Decision-making in respect of applications under s 21 is discussed at [4.910]. 479 Citizenship Policy (Cth) Ch 7 p 75. 480 Australian Citizenship Instructions (Cth) (21 September 2009–8 November 2009) Ch 5. 481 Australian Citizenship Instructions (Cth) (21 September 2009–8 November 2009) Ch 5. 482 Australian Citizenship Instructions (Cth) (21 September 2009–8 November 2009) Attachment B. Interestingly, these definitions have been amended slightly since. Under the Citizenship Policy, “significant” is defined as being “important; of consequence”,

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applicant’s case was to fail because he or she was not a permanent resident, the Minister retained a discretion to grant citizenship in particular circumstances. The second qualification to the permanent residency requirement was that, in the case of an applicant who did not meet the policy guidelines, decision-makers were required to “consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances”.483 While the Australian Citizenship Instructions stated that “[t]he circumstances would need to be very unusual to warrant approval of an application outside policy”,484 there was nevertheless scope for the important consideration of a child’s circumstances and best interests. The best interests inquiry applied to all applicants who were under 18 years of age and living in Australia at the time of the decision.485 While current policy does contain a requirement to consider children’s best interests in the exercise of any discretion affecting them,486 the amendment to s 21(5) has reduced the scope of its application. The legislative requirement of permanent residency means that children who are not permanent residents are no longer eligible to apply for Australian citizenship under s 21(5). Thus, there is no scope for the exercise of ministerial discretion under s 24(2) and no application of policy considerations. Accordingly, for children who are not permanent residents, no inquiry can be made as to their unusual circumstances, best interests or prospects of suffering hardship or disadvantage if they are denied Australian citizenship.487 Operation of s 21(5) in practice [4.710] A comparison of cases considering applications for Australian citizenship made under s 21(5) before the 2009 amendment with those made after the amendment highlights the effect of the amendment in practice. “hardship” as “a condition that bears hard upon one; severe toil, trial, oppression or need” and “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”: see Citizenship Policy (Cth) Ch 3 p 33. 483 Australian Citizenship Instructions (Cth) (21 September 2009–8 November 2009) Ch 5. 484 Australian Citizenship Instructions (Cth) (21 September 2009–8 November 2009) Ch 5. 485 Australian Citizenship Instructions (Cth) (21 September 2009–8 November 2009) Ch 5. 486 See Citizenship Policy (Cth) Ch 22. 487 The issues and implications of this amendment, particularly in light of Australia’s obligations under international law, are discussed in Stewart, “Citizenship Rights: Keep out of Reach of Children” (2010) 84(12) Law Institute Journal 50; Rubenstein and Field, “Conceptualising Australian Citizenship for Children: A Human Rights Perspective” (2013) 20 Australian International Law Journal 77; and Rubenstein and Field, “Citizens in their Own Right: Achieving Adequate Recognition of Children in Australia’s Immigration and Citizenship Framework” in Crock (ed), Creating New Futures: Settling Children and Youth from Refugee Backgrounds (2015) Ch 14.

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The five-year-old applicant in SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645; [2009] AATA 539 (SNMX) applied for citizenship under s 21(5) prior to the amendment. In overturning the Minister’s decision to reject the application, the AAT considered the applicant’s identification with the Australian community and his attachment to his family and community in Australia. The applicant’s parents had been denied protection visas and he was not eligible for a child visa because they were not Australian citizens or permanent residents. Handley SM took into account the applicant’s expected standard of living if he moved to Sri Lanka with his parents, the availability of education in Sri Lanka, the consequences of his being separated from his parents should they be required to return to Sri Lanka and the availability of care should he remain in Australia. The best interests of the child were a primary consideration488 and the application was one “involving circumstances which are unique”.489 Handley SM concluded that “[b]eing permitted to remain here, as a citizen ensures … continuity and stability of housing, health care, relationships, communication, education and identity”.490 Similarly, in Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452 at 462, the 17-year-old applicant’s circumstances “being out of the ordinary entitle[d] him to the benefits and membership of the Australian community as a citizen”. The applicant’s parents were entitled to remain in Australia lawfully but were not permanent residents, so the applicant was not eligible for a child visa. Neither was he eligible for a protection visa and his temporary business visa was due to expire. Having regard to the duration of the applicant’s 13-year residence in Australia, the lack of employment opportunities, accommodation and the economic insecurity that he would confront in Macedonia, Handley SM concluded that if the applicant was compelled to return to Macedonia he would suffer significant disadvantage or hardship.491 This would be fuelled by the absence of family and friends and the possibility of losing the relationship with his sister, an Australian citizen.492 The applicant’s circumstances were considered to be of an exceptional nature: “He is, virtually, an Australian, by his commitment and allegiance.”493 Finally, in Lavalu and Minister for Immigration and Citizenship [2010] AATA 229 (Lavalu), citizenship was granted to a child who was born, adopted and living in Tonga. The child, Lina, was adopted by an Australian citizen 488 SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645; [2009] AATA 539 at [128]. 489 SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645; [2009] AATA 539 at [155]. 490 SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645; [2009] AATA 539 at [154]. 491 Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452 at 462. 492 Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452 at 46. 493 Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452 at 46.

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and the child’s Tongan uncle who was an Australian permanent resident. The adoption was official under Tongan law and a new birth certificate was issued, listing the child’s new parents as her parents. However, Tonga is not a signatory to the Hague Convention, so Lina was not eligible to apply for citizenship in Australia under s 19C of the 2007 Act. Nonetheless, Lina’s application under s 21(5) was successful due to the unusual circumstances of the case. These circumstances included that Lina’s birth mother did not want any responsibility for her, that Lina and her adopted parents shared a close bond, and that Lina had been separated from her new parents and was living in Tonga in poor, crowded and unsanitary conditions. Tamberlin DP considered Lina’s circumstances and concluded that “[t]he best interests of Lina … are strongly in favour of the grant of citizenship.”494 These cases sit in stark contrast to those involving applications made after the amendment to s 21(5). For example, Lavelua and Minister for Immigration and Citizenship [2010] AATA 314, like Lavalu, concerned a child applicant who was adopted pursuant to an adoption order made by the Supreme Court of Tonga. However, in this case, the application for Australian citizenship under s 21(5) was made four days after the amendment came into effect. The new parents of the child were Australian citizens who brought their adopted child with them to Australia, but were unable to gain citizenship for him.495 Because the child was not eligible to apply for Australian citizenship under the Act, his best interests were never considered in the context of an application. Handley SM commented (at [13]) on the gap in Australia’s citizenship law in protecting the best interests of children such as the applicant in this case: For my part, I would recommend with respect, that an appropriate visa be issued to [the child] to allow him to remain in Australia … [He] was adopted with the consent of his biological mother. Denying him the right to remain in Australia with his adoptive parents would not be in his best interests. Being forced to return to Tonga would be unconscionable.

However, the child had no visa options under the Migration Act 1958 (Cth) and therefore could not be granted citizenship under the Act. Cancellation of approved citizenship application for children under 16 if parent’s approval is cancelled [4.720] It is important to note certain procedural requirements that apply specifically to applications made by children under the age of 16. Under the Act an application for Australian citizenship by a child under

494 Lavalu and Minister for Immigration and Citizenship [2010] AATA 229 at [46]. 495 It is unclear how this happened, given that there would have been no appropriate visa options for the child.

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16 may either be on a form that contains no other application, or on a form that also contains an application by one of the child’s responsible parents.496 However, if a child under 16 makes an application under s 21 at the same time as one or more of his or her responsible parents, and the Minister initially approves the child and the parents’ applications but subsequently cancels this approval given to each responsible parent, the Minister must cancel the child’s approval.497 There is no discretion available for the Minister to depart from this requirement to cancel the child’s approval. However, because the Citizenship Policy makes it clear that a child’s best interests must be considered in any decision to cancel a citizenship approval under s 25,498 the child’s interests would need to be taken into account by the Minister in making a decision to cancel the parent’s approval. Citizenship by conferral – person born to former Australian citizen [4.730] The fifth situation in which a person can become an Australian citizenship by conferral is in s 21(6) of the Act, which states: A person is eligible to become an Australian citizen if the Minister is satisfied that: (a) the person was born outside Australia; and (b) a parent of the person was not an Australian citizen at the time of the person’s birth; and (c) the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and (d) if the person is aged 18 or over at the time the person made the application499 – the person is of good character at the time of the Minister’s decision on the application.500

This provision applies to children of former Australian citizens who lost their citizenship under s 17 of the 1948 Act. From the inception of the 1948 Act until 4 April 2002, s 17 mandated the loss of Australian citizenship for a person who acquired a new citizenship. Section 17 of the Act in force from 22 November 1984 until 4 April 2002 (“Loss of citizenship on acquisition of another nationality”) stated: (1) A person, being an Australian citizen who has attained the age of 18 years, who does any act or thing: (a) the sole or dominant purpose of which; and 496 2007 Act, s 46(2A). 497 2007 Act, s 25(4). Note that this applies to any application made under s 21, not just those under s 21(5). Cancellation of approval is discussed at [4.950]. 498 Citizenship Policy (Cth) Ch 22 p 224. 499 If it had been passed, the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) would have applied the character requirement to people under the age of 18: see [4.1060]. 500 Good character is discussed at [4.1060].

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(b) the effect of which, is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen. (2) Subsection (1) does not apply in relation to an act of marriage.501

This section applied regardless of whether the person was inside or outside Australia at the time they did the act or thing, the sole or dominant purpose of which was to acquire the citizenship of another country. This was different to the wording in force before 22 November 1984. Prior to 1984, s 17 provided: An Australian citizen of full capacity,502 who whilst outside Australia and New Guinea, by some voluntary and formal act, other than marriage, acquires the nationality or citizenship of a country other than Australia, shall thereupon cease to be an Australian citizen.503

Children born overseas after their parent lost Australian citizenship under the former s 17 were able to apply for citizenship under the former s 13(9), but no such avenue was available for persons aged 18 or over. Section 21(6) was enacted to enable “those aged over 18 to access their Australian heritage”.504 Now, any person born outside Australia to parents who were not Australian citizens due to the operation of s 17 of the 1948 Act is eligible to apply for a conferral of Australian citizenship, regardless of that person’s age. The Citizenship Policy clarifies that the definition of “Australia” for the purposes of s 21(6) is the definition of Australia at the time of the person’s birth. The example is given of a person born in Papua prior to 16 September 1975. This person was not born outside Australia because Papua was part of Australia for the purposes of the old Act until Papua New Guinea gained Independence on 16 September 1975.505 It is also important to note that s 17 of the 1948 Act only applied to adults. Thus, if the parent of the applicant lost their Australian citizenship as a child (that 501 This section was inserted by Act No 129 of 1984, s 13 and commenced on 22 November 1984. 502 The definition of “full capacity” in s 5(3)(b) of the 1948 Act was amended in 1973 by Act No 99 to change the age from 21 to 18. This Act commenced on 1 June 1974. 503 This section was repealed by Act No 129 of 1984, s 13 which commenced on 22 November 1984. Senator Gietzelt (New South Wales Minister for Veterans’ Affairs) stated in Hansard: “Clause 13 repeals existing section 17 and substitutes new provisions to the effect a person, being an Australian citizen of 18 years of age, will cease to be an Australian citizen, where an act is committed – whether inside or outside Australia, but other than marriage – specifically for the purpose of acquiring a foreign nationality or citizenship. But where that act was done under duress or unwittingly, clause 17 provides the person may, at the discretion of the Minister, resume Australian citizenship lost under new section 17”: ee Australia, Senate, Debates (4 May 1984) Vol S103 p 1571. 504 Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 36. 505 Citizenship Policy (Cth) Ch 7 p 79.

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is, they were under the age of 21 prior to 1 December 1973 or under 18 since that date), the applicant would not be eligible for conferral under that provision.506 Another important aspect of s 21(6) is that it only relates to a parent’s loss of citizenship under s 17 of the 1948 Act, the dual citizenship provision. It does not apply to children of parents who renounced their Australian citizenship under s 18, or lost their citizenship under any other provision of the 1948 Act.507 Children whose parents lost their Australian citizenship under these other provisions must rely on the resumption provisions in ss 28A – 32 of the 2007 Act, which are discussed at [4.960]. However, a gap exists here: only children who were already Australian citizens and lost their citizenship by the operation of the Act when their parent ceased to be an Australian citizen508 are eligible to resume citizenship. Children of parents who lost their citizenship under a provision other than s 17 before the child’s birth have no avenue to resume Australian citizenship.509 Citizenship by conferral – person born in Papua [4.740] The sixth situation in which a person is eligible to apply for citizenship by conferral is if the person was born in Papua before 16 September 1975. Section 21(7) of the 2007 Act states: A person is eligible to become an Australian citizen if the Minister is satisfied that: (a) the person was born in Papua before 16 September 1975; and (b) a parent of the person was born in Australia (within the meaning of this Act at the time the person made the application); and (c) the parent was an Australian citizen at the time of the person’s birth; and (d) the person is of good character at the time of the Minister’s decision on the application.

Section 21(7) was inserted into the Act in 2007. It provides for people born in Papua prior to Papua New Guinea Independence (on 16 September 1975) to one or more parents who were born in mainland Australia.510 506 Citizenship Policy (Cth) Ch 7 p 79. 507 This issue has been widely discussed, particularly in the context of children whose parents were born in Australia, but renounced their Australian citizenship, as required by Maltese citizenship law prior to 10 February 2000, in order to preserve their Maltese citizenship: see The Southern Cross Group, Australian-born Maltese and their Children (15 September 2008): http://www.southern-cross-group.org/malta/overview.html. 508 That is, by operation of s 36 of the 2007 Act or s 23 of the 1948 Act. Cessation of citizenship under these provisions is discussed at [4.1280]. 509 However, these children may be eligible to apply for a conferral of Australian citizenship under other provisions, such as s 21(5), but will be subject to additional eligibility requirements in those provisions – for example, the requirement in s 21(5) that the applicant be under 18 and an Australian permanent resident. 510 “The policy intention is to make clear that the meaning of ‘Australia’ in this subsection refers to the definition of Australia at the time that the applicant makes the application

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Prior to Papua New Guinea Independence, these people were Australian citizens by virtue of their birth in Papua. The citizenship status of Papuans evolved differently from that of other British subjects and also differently from persons in New Guinea.511 Papuans were British subjects from 1906, when Australia was given control of Papua. The Nationality and Citizenship Act 1948 (Cth), which created the legal status of “citizen”, defined “Australia” to include the Territory of Papua. Under s 10(1) of the 1948 Act, people born in Papua before 1975 became citizens of Australia by birth. This was in contrast to people born in New Guinea, who became protected persons.512 After Papua’s Independence in 1975, reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) removed Australian citizenship from anyone who became a citizen of Papua under its new Constitution. The inclusion of s 21(7) was intended to: remedy the anomalous situation under the old Act of a unique class of persons who were born in an Australian territory and are the children of a mainland Australian citizen parent who was born in an Australian State or internal Territory, yet have been denied Australian citizenship.513

This anomalous situation was highlighted in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694514 where the citizenship status of people born in Papua to Australian parents came under scrutiny. Susan Walsh was born in Papua in 1970. Her father, an Australian citizen by birth in mainland Australia, had lived in Papua and married Susan’s Indigenous Papuan mother. Susan’s Australian citizenship by birth515 was removed upon Papuan Independence in 1975. In 2000, Susan applied for registration as an Australian citizen by descent under s 10C of the 1948 Act. However, her application was refused because she had not been “born outside Australia”. That decision was upheld on appeal by the full Federal Court. The court noted: for citizenship and at no other time”: Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 37. The 2007 Act states (at s 3) that “Australia, when used in a geographical sense, includes the external Territories.” 511 Chapter 19 of the Citizenship Policy (Cth) provides specific guidance on the assessment of citizenship applications made by people born in Papua New Guinea. 512 For a discussion, see Rubenstein and Field, “What is a Real Australian Citizen? Insights from Papua New Guinea and Mr Amos Ame” in Lawrence and Stephens (eds), Citizenship in Question: Evidentiary Birthright and Statelessness (forthcoming, 2017) Ch 3; Rubenstein, “The Lottery of Citizenship: The Changing Significance of Birthplace, Territory and Residence to the Australian Membership Prize” (2005) 22(2) Law in Context 45. 513 Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 37 514 This case is discussed in detail in Rubenstein, “Advancing Citizenship: The Legal Armory and its Limits” (2007) 8 Theoretical Inquiries in Law 509. 515 Acquired under s 10(1) of the 1948 Act at the time of her birth.

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Had Ms Walsh been born in New Guinea, rather than Papua, or for that matter had Ms Walsh been born anywhere else in the world except Australia, she could have become an Australian citizen by descent, initially under s 11, and later under ss 10B and 10C of the Act, if otherwise eligible … [T]he problem arises not because of the structure of the legislation, but because the government of the day by regulation … stripped persons in the position of Ms Walsh of their Australian citizenship by birth, without amending or modifying the Act so as to provide for the acquisition by such persons of Australian citizenship by descent if born of an Australian parent.516

However, the court considered the question of whether a child is born inside or outside Australia to be “a matter to be determined at the time of birth of the child, and … subsequent changes in the geographic boundaries of ‘Australia’ do not have a retrospective impact upon whether a child was born in or outside ‘Australia’”.517 Individuals born in Papua before 16 September 1975 to parents who were citizens of mainland Australia are still not eligible for Australian citizenship by descent, but would now be eligible to apply for a conferral of citizenship under s 21(7) of the 2007 Act. However, it is important to note that individuals who were born in Papua, and whose parents were also born in Papua, have no special status. This was made clear by the High Court in the case of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439. Rejecting the applicant’s argument that he had a vested right, as an Australian citizen by birth, to permanent residence in Australia (and thus remained an Australian citizen after Papuan Independence)518 Kirby J (at 468) refers to the intention of the lawmakers enacting the 1948 Act: The Minister responsible for the Citizenship Act was specifically asked in the Parliament whether a “native of Papua” was, under the legislation entitled to come to Australia and enjoy the right to vote in Australia. He replied, accurately (citations omitted): We do not even give them the right to come to Australia. An Englishman who came to this country and complied with our electoral laws could exercise restricted rights as a British subject, whereas a native of Papua would be an Australian citizen but would not be capable of exercising rights of citizenship. The Minister’s Statement to the federal Parliament, and the repeated references to ethnicity and race in the parliamentary debates, reflected a concern, very much alive at the time of the enactment of the Citizenship Act, to preserve to the Commonwealth the power to exclude from entry into the Australian 516 Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694 at 704–706. 517 Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694 at 704–705. 518 Under s 64 of the Constitution of Papua New Guinea, only those people born in Papua who were not “real foreign citizens” (including “real” Australian citizens – defined by reference to a right of permanent residence in Australia) would become Papuan citizens on Independence, thereby losing their automatically acquired Australian citizenship.

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mainland foreign nationals and even British subjects who were “ethnologically of Asiatic origin” or other “pigmentation or ethnic origin”.

Thus, people born in the Australian Territory of Papua between 1948 and 1975 were, until 1975, formally Australian citizens, but were afforded limited rights before 1975, and have no right to Australian citizenship under the current Act if they or their parents were born in Papua before 1975. This situation contrasts starkly with the constitutional status of non-citizen British subjects, and reflects the racial prejudices of the time.519 Citizenship by conferral – statelessness [4.750] The seventh situation in which a person is eligible to apply for a conferral of Australian citizenship is when the person was born in Australia and is not, and has never been, a citizen of any country and is not, and has never been, entitled to acquire the citizenship of a foreign country. Section 21(8) of the Act states: A person is eligible to become an Australian citizen if the Minister is satisfied that: (a) the person was born in Australia; and (b) the person: (i) is not a national of any country; and (ii) is not a citizen of any country; and (c) the person has: (i) never been a national of any country; and (ii) never been a citizen of any country; and (d) the person: (i) is not entitled to acquire the nationality of a foreign country; and (ii) is not entitled to acquire the citizenship of a foreign country.

The Minister must be “satisfied” that the applicant is not entitled to acquire the nationality or citizenship of a foreign country. The AAT has stated that the criterion of being satisfied about an entitlement to acquire something refers to a “subjective state of mind, and is conceptually different from the objective fact of the entitlement, or absence of entitlement”.520 It “requires no more than a state of mind ‘satisfied with the preponderance of probability arrived at by due caution in the light of the seriousness’ of the matter to be determined”.521 Taylor SM continued: 519 The High Court’s view on the constitutional status of British subjects is discussed at [4.40]. See also Rubenstein, “Unequal Membership: The Constitution’s Score on Citizenship” (Legal Studies Research Paper No 65, University of Melbourne Faculty of Law, 2004) and Rubenstein and Field, “What is a Real Australian Citizen? Insights from Papua New Guinea and Mr Amos Ame” in Lawrence and Stephens (eds), Citizenship in Question: Evidentiary Birthright and Statelessness (forthcoming, 2017). 520 AP and Minister for Immigration and Border Protection [2014] AATA 706 at [52]. 521 AP and Minister for Immigration and Border Protection [2014] AATA 706 at [52], citing Re Woodcock and Woodcock [1957] NZLR 960 at 963 and Fryar v Systems Services Pty Ltd (1994) 125 ALR 592 at 597.

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Even though I regard the primary connotation of entitlement as referring to underlying eligibility or qualification, I do not consider that it is correct in the application of s 21(8)(d) wholly to exclude consideration of the practicalities of any application process that may be required. If the circumstances affirmatively showed that an applicant had no prospect of satisfying the application requirements of the relevant foreign country, it is difficult to accept the proposition that a decision maker could honestly and reasonably fail to be satisfied that the person was “not entitled to acquire” citizenship of that country.522

The application requirements would “generally be straightforward and largely procedural, and not so onerous as to undermine or negate the ‘underlying eligibility or qualification’”.523 Section 21(8) of the Act was amended with effect from 7 October 2008524 to better reflect Australia’s obligations under the Convention on the Reduction of Statelessness.525 Prior to the 2008 amendment, for a person to satisfy the eligibility criteria in s 21(8)(d) and (e), they must have had no reasonable prospects of acquiring the nationality or citizenship of any country and never have had those prospects.526 The language of s 21(8) prior to the amendment reflected the operation of s 23D of the 1948 Act, which was inserted into the 1948 Act in 1974.527 Section 23D(1) referred to the applicant not being, and never having been, entitled to acquire the citizenship of a foreign country. Section 23D(1A) clarified that: Where the Minister is satisfied that a person has or had reasonable prospects, at a particular time, of acquiring the citizenship of a foreign country if the person were to apply, or to have applied, at that time for the grant of such citizenship, the person shall be taken, for the purposes of subsection (1), to be or to have been entitled to acquire the citizenship of that country at that time.528

The reasonable prospects test of statelessness was “too broad and [could] operate to deny citizenship to persons who are not in fact entitled to acquire citizenship or nationality of a foreign country”,529 and were thus contrary to the Convention on the Reduction of Statelessness.530 A person will now satisfy these eligibility criteria if they are not entitled to acquire the nationality or citizenship of a foreign country. The amendment also 522 AP and Minister for Immigration and Border Protection [2014] AATA 706 at [56]. 523 KKRG and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 635 at [27]. 524 See Migration Legislation Amendment Act (No 1) 2008 (Cth) Sch 5. 525 Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975). 526 See 2007 Act, s 21(8)(d), (e) as made. 527 See Australian Citizenship Act 1973 (Cth). 528 1948 Act, s 23D(1A). 529 Migration Legislation Amendment Bill (No 1) 2008 (Cth) Explanatory Memorandum at [63]. 530 Human Rights and Equal Opportunity Commission, Submission No 50, Senate Legal and Constitutional Legislation Committee, Provisions of Australian Citizenship Bill 2005

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removed the Minister’s discretion to refuse a stateless person who has nevertheless satisfied the s 21(8) criteria.531 It is important to note that, despite the fact that s 21(8) and subsequent amendments to it were intended to ensure that Australia “adheres to its obligations under the Convention on the Reduction of Statelessness that no-one born in Australia remain stateless”,532 a disconnect still exists between the wording of the Act and the words of that Convention. The Convention on the Reduction of Statelessness requires state parties to grant nationality to individuals born in that state who would “otherwise be stateless”.533 However, s 21(8) continues to focus on entitlement to, rather than an actual grant of, foreign citizenship.534 Residence requirements [4.760] Applicants for a conferral of Australian citizenship under s 21(2), (3) or (4) are required to satisfy either the general residence requirement, special residence requirement or the defence service requirement under the Act.535 The enactment of the 2007 Act brought significant change to the general residence requirements for a conferral of Australian citizenship, requiring the applicant to have been present in Australia for the entire period of four years immediately before their application is made, including the last 12 months as a permanent resident.536 The residence requirements in the 2007 Act were further amended with effect from 21 September 2009 to clarify the residence requirements that and Australian Citizenship (Transitionals and Consequentials) Bill 2005 (2006) p 5; Rubenstein, Submission No 65, Senate Legal and Constitutional Legislation Committee, Provisions of Australian Citizenship Bill 2005 and Australian Citizenship (Transitionals and Consequentials) Bill 2005, p 3. 531 2007 Act, s 24(2), (4C), but note that citizenship may still be refused on the basis that the applicant has been convicted of a national security offence or has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least five years. 532 Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 38. 533 Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975) Art 1. For a discussion of the interpretation of the Statelessness Convention, see Office of the United Nations High Commissioner for Refugees, Guidelines on Statelessness No 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1–4 of the 1961 Convention on the Reduction of Statelessness, UN Doc HCE/GS/12/04 (21 December 2012). 534 This raises issues where a child may legally be entitled to citizenship of a foreign country, but return to that country is impossible in practical terms due, for example, to their parents’ fear of persecution. These issues are discussed in Rubenstein and Field, “Conceptualising Australian Citizenship for Children: A Human Rights Perspective” (2013) 20 Australian International Law Journal 77. 535 See 2007 Act, s 21(2)(c), (3)(c), (4)(d). 536 The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 contained amendments to s 22(1)(a) and (b) to clarify the starting day of the four-year period.

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apply in circumstances in which the general residence requirement does not apply. Special residence requirements were introduced to cover applicants engaging in activities that are of benefit to Australia, or who are engaged in particular kinds of work requiring regular travel outside Australia.537 A defence service requirement applies to persons who have completed defence service.538 Each of these requirements will be addressed in turn. In addition, the Citizenship Policy is a necessary study for applicants considering proceedings under this section. These guidelines indicate the manner in which the Department is likely to consider applications. The guidelines, however, are not law and decisions pursuant to them are reviewable before the AAT on their merits,539 and can be challenged if unlawful in any way.540 General residence requirement: s 22 [4.770] Prior to 2007, an applicant under s 13 of the 1948 Act must have been in Australia as a permanent resident for periods amounting to at least one year during the two years preceding the application, and two years during the five years preceding the application. Under the 2007 Act, the general residence requirement is that the person must have been lawfully541 in Australia for four years immediately before making the application under s 21, and have been present in Australia as a permanent resident for the year before making the application.542 Section 22(1) states: Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if: (a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and (b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and (c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application. 537 See 2007 Act, ss 22A, 22B, respectively. 538 See 2007 Act, s 23. 539 See 2007 Act, s 52(A). See further, discussion on the role of the tribunal regarding departmental policy at [4.1450]. 540 Apart from a right of merits review before the AAT, where the tribunal can change the decision on the merits, there may also be a matter worthy of judicial review. For further elaboration upon the nature of judicial review, see Cane and McDonald, Principles of Administrative Law: Legal Regulation of Governance (2nd ed, 2012); Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009). 541 A person’s presence in Australia is considered to be lawful if they have permission to be in Australia either because they are an Australian citizen, or they hold a visa under the Migration Act 1958 (Cth): see Citizenship Policy (Cth) Ch 3 p 25. 542 See 2007 Act, s 22. The residence requirement under the 2007 Act is discussed in this section, and exceptions to it are addressed at [4.810].

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Between 1 July 2007 and 30 June 2010, transitional arrangements were in place to deal with the changed residence requirement in the 2007 Act. If an applicant became a permanent resident before 1 July 2007 and applied for a conferral of citizenship on or before 30 June 2010, the residence requirement was that under the 1948 Act. That is, the applicant must have been living in Australia for two years as a permanent resident in the five years immediately before applying, including one year in the two years immediately before applying. If an applicant became a permanent resident after 1 July 2007, the residence requirements in the 2007 Act apply. Section 22(1A) – (11) set out a number of exemptions and discretions that apply to each of the elements of s 22(1). In this regard, it is useful to examine each element of s 22(1) in turn. Present in Australia for four years: s 22(1)(a) [4.780] The Citizenship Policy makes it clear that the start date of the four-year residence period is usually the date four years immediately before the applicant lodges their application. However, if the person has not made their first entry into Australia, they need to wait at least four years after their first entry to meet this requirement. However, an applicant does not need to satisfy s 22(1)(a) if they were born in Australia543 or were an Australian citizen at any time before they made an application for Australian citizenship.544 The Act also provides for short periods of overseas absences. If a person was absent545 from Australia for a part of the period of four years 543 2007 Act, s 22(2)(a). 544 2007 Act, s 22(2)(b). This provision mirrors s 13(5) of the 1948 Act, which exempted former Australian citizens and people born in Australia from satisfying the requirement in s 13(1)(e) to have been present in Australia as a permanent resident for at least two of the five years immediately preceding the application for citizenship. 545 If the applicant has been in Australia before, but is outside of Australia on the day four years preceding the application, the policy states that the person needs to be on a valid visa. This policy was challenged as unlawful in the AAT in Neoh Weng Fei and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 624. This led to an examination of the meaning of “absence” in s 22(1A) and the tribunal member stated that “absence from Australia for the purposes of s 22(1A) has a temporary or periodic character”, citing also Lo and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 579. Moreover, the tribunal in Neoh Weng Fei set up a test for satisfying the section: Thus, for the purposes of s 22(1) and (1A), for a period in which a person is “absent from Australia” to be treated as one in which he or she is taken to be present in Australia, the absence or absences must: (a) be of less than 12 months’ duration (in total) within the 4-year period immediately before the person applied for conferral of Australian citizenship; and (b) follow a period in which the person was present in Australia; (c) have a temporary character during which the person intended to return to and maintained a continuing connection with Australia. See further at [54] and [56]. This definition has not been considered by the Federal Court.

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immediately before they made their application, but the total period of absence from Australia was not more than 12 months, then the person is taken to satisfy the requirement in s 22(1)(a).546 However, if a person was confined in a prison or a psychiatric institution by order of a court in connection with proceedings for an offence against Australian law, then the person is taken not to satisfy the requirement in s 22(1)(a).547 Section 22(1C) mirrors s 13(4) of the 1948 Act548 and further emphasises notions of membership and the type of people the community considers to be desirable. People who have broken the Criminal Code (Cth) are penalised beyond their imprisonment. Arguably, this is consistent with the penalty under the Commonwealth Electoral Act 1918 (Cth), which prevents certain prisoners from voting.549 The Minister has a discretion to decide that s 22(1C) does not apply if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for the provision to apply.550 As recognised in the Citizenship Policy, the circumstances that may be taken into account are not prescribed in the Act and therefore any information that an applicant puts forward must be considered. The Citizenship Policy envisages that this discretion may be exercised where a decision has been quashed, or where the applicant has been pardoned following a wrongful conviction.551 Not present as an unlawful non-citizen: s 22(1)(b) [4.790] An applicant does not need to satisfy s 22(1)(b) if they were born in Australia552 or were an Australian citizen at any time before they made an application for Australian citizenship.553 For the purposes of s 22(1)(b), the Minister has the discretion to treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was an unlawful non-citizen because of an administrative error.554 The onus is on the applicant to prove that an administrative error occurred. The Citizenship Policy makes it clear that the administrative error must have been the 546 2007 Act, s 22(1A). 547 2007 Act, s 22(1C). 548 1948 Act, s 13(4)(a). Note also that, consistent with the 2007 Act, s 13(16) stated that a reference in para (4)(a) to a period during which a person has been confined in a prison does not include a conviction that has subsequently been quashed. 549 See 2007 Act, s 93(8AA). 550 2007 Act, s 22(5A). 551 Citizenship Policy (Cth) Ch 7A pp 93–94. 552 2007 Act, s 22(2)(a). 553 2007 Act, s 22(2)(b). This provision mirrors s 13(5) of the 1948 Act. 554 2007 Act, s 22(4A).

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cause of the person lacking the necessary legal status.555 The term “administrative error” has been interpreted in the AAT according to its ordinary meaning, and: in the context of s 22 of the Act should be interpreted as a reference to a mistake or error made by the administrative or executive arm of government which, in this instance, affected the lawfulness of the person’s residence in Australia.556

Administrative errors may include an incorrect recording of the visa granted to the applicant on the Department’s system, the applicant being advised that they were a lawful non-citizen, when in fact they were unlawful, or an applicant entitled to a permanent visa applying for a temporary visa as a result of incorrect advice from an officer of the Department.557 In Rogers and Minister for Immigration and Citizenship [2011] AATA 592 at [39], Jarvis DP noted: It is incumbent on the Department to provide clear guidance to applicants, who in many cases will have language difficulties, and will generally be unaware of the complex requirements of the Migration Act and Regulations. If a Department’s communication is incomplete, internally inconsistent, inexact or inaccurate, this of itself might well constitute an administrative error within the meaning of s 22(4A).

Recently, an administrative error was found to have occurred where an individual received “incomplete and misleading advice” as to the procedure for lodgment of her employer’s nomination and her own application for a permanent visa.558 However, it was not an administrative error where a departmental officer informed the applicant that they did not know what the effect would be of the applicant lodging his application for visa renewal after his visa had expired, but within 28 days of its expiring.559 Processing delays and the overturning of an adverse decision after merits or administrative review are not administrative errors.560 The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed amendments to s 22. If they had been passed, the amendments would have entitled the Minister to make instruments prescribing circumstances in which a period is one in which the person was not present in Australia as an unlawful non-citizen, and would have

555 Citizenship Policy (Cth) Ch 7A p 94. 556 Chaudhary and Minister for Immigration and Citizenship (2010) 53 AAR 561; [2010] AATA 1006 at [32]. 557 Citizenship Policy (Cth) Ch 3 p 27. 558 See Adediran and Minister for Immigration and Citizenship [2013] AATA 482. 559 Girgis and Minister for Immigration and Citizenship [2013] AATA 481. 560 Citizenship Policy (Cth) Ch 3 p 27.

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conferred a discretion on the Minister to decide that the prescribed circumstances exist in relation to a person.561 Present as a permanent resident for 12 months immediately before making the application: s 22(1)(c) [4.800] The Act allows for permanent residents to have periods of absence from Australia. If the applicant was absent from Australia for a part of the requisite 12-month period, and if the total period of the absence or absences was not more than 90 days and the person was a permanent resident during each period of absence, then for the purposes of s 22(1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.562 For the purposes of s 22(1)(c), the Minister may exercise discretion in four situations. First, as with s 22(1)(b), if the Minister considers that a person was not present in Australia as a permanent resident during a period because of an administrative error, then the Minister may treat the period as one in which the person was present as a permanent resident.563 Second, the Minister may treat a period as one in which the applicant was present in Australia as a permanent resident if the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen) and the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present as a permanent resident.564 Note that s 22(6) only applies if the applicant was present in Australia. The Citizenship Policy provides guidance on the meaning of “significant hardship or disadvantage” and states that applicants would normally be required to demonstrate either an inability to gain employment in an area restricted to Australian citizens with no available alternative, difficulty of international travel due to inability to obtain or safely use a passport or travel document from their country of citizenship,565 or limited or 561 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 22(3) – (4)). 562 2007 Act, s 22(1B). 563 2007 Act, s 22(5). See discussion above at [4.800]. 564 2007 Act, s 22(6). This provision mirrors s 13(4)(b)(iv) of the 1948 Act. Note that in Islam v Minister for Immigration and Citizenship (2012) 125 ALD 476, Jagot J of the Federal Court confirmed that the discretion in s 22(6) applies only to the requirement in s 22(1)(c). It does not confer a discretion in respect of other provisions requiring permanent residency, including s 21(5) of the Act. The tribunal considered that the applicant’s inability to obtain a replacement passport from the Peoples’ Republic of China did not meet the standard required to demonstrate disadvantage because the applicant was entitled to visit China at any time up to 28 September 1999, when his passport expired, to see his aged parents and son. He chose not to do so and provided the tribunal with no reasons: at [31]. 565 In Shan and Minister for Immigration and Citizenship [2010] AATA 923, the tribunal held that the applicant’s inability to travel to China to visit his aging parents or adult son was not a significant hardship or disadvantage.

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restricted academic or sporting potential566 because opportunities to reach that potential are limited to Australian citizens.567 Third, if the applicant is the spouse, de facto partner or surviving spouse or de facto partner568 of an Australian citizen at the time of making their application, the Minister may treat a period in which the person was not present in Australia but had a close and continuing connection with Australia, was a permanent resident,569 and was the spouse or de facto partner of an Australian citizen during that period, as a period in which the person was present in Australia as a permanent resident.570 Applicants are required to provide evidence of their close and continuing association with Australia while overseas. Factors that may demonstrate this include the applicant having Australian citizen children, periods of residence or intention to reside in Australia, employment in Australia, ownership of property, evidence of income tax paid in Australia and evidence of active participation in Australian community-based activities or organisations.571 It is also policy that more weight should be given to these factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making their application (including at least 90 days as a permanent resident).572 566 Note that the tribunal does not consider ineligibility for government-subsidised tertiary education to constitute significant hardship or disadvantage. In Sebecke and Minister for Immigration and Citizenship [2011] AATA 731, McDermott SM stated (at [17]) that “the primary motivation for Ms Sebecke’s citizenship application is to gain access to HECS-HELP. In terms of the Australian Citizenship Instructions, this can be regarded as a personal want, which would not warrant a departure from the policy.” 567 Citizenship Policy (Cth) Ch 3 p 33. 568 “Surviving spouse or de facto partner” of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person: 2007 Act, s 22(10). 569 The requirement for permanent residence was only inserted into the 1948 Act in 1994, effective from 1 September 1994. Note also the decision of Ishri and Minister for Immigration and Ethnic Affairs [1994] AATA 279, where the applicant seeking to rely upon s 13(9) was an illegal entrant. The AAT confirmed that, despite the applicant’s exemplary life, his marriage to an Australian citizen and his community work, the person must be legally in Australia, and that failure of the Department to deport the applicant was irrelevant. 570 2007 Act, s 22(9). This section largely mirrors s 13(9)(c) of the 1948 Act, but note that s 22(10) of the 2007 Act specifically provides that “spouse” includes a de facto spouse. The meaning of the word “spouse” in the 1948 Act was considered in Re Bustamante de Brady and Department of Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 130. The tribunal held that the word does not include de facto spouse, as argued by the applicant. Consideration was given to the context of the Act and reference was made to the Hansard debates associated with the section. However, the tribunal pointed out that it was bound by the words of the legislation. 571 Citizenship Policy (Cth) Ch 7A p 96. 572 Citizenship Policy (Cth) Ch 7A p 96. The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed the introduction of a legislative

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Kilpi and Minister for Immigration and Citizenship (2012) 135 ALD 649; [2012] AATA 605 provides an interesting illustration of the AAT’s consideration of these factors. The applicant was a citizen of Finland and had studied and lived in Australia with his family. Mr Kilpi’s wife had renounced her Finnish citizenship to become an Australian citizen in 1995. Mr Kilpi had been present in Australia for an aggregate period of 47 days in the four years preceding his application for citizenship, and present for 28 days as a permanent resident in the 12 months preceding the application. Therefore, he did not satisfy s 22(1)(a) and (c), but because Mr Kilpi’s wife was an Australian citizen, he sought to rely on s 22(9) for a conferral of citizenship under s 21. However, Mr Kilpi’s application was rejected on the grounds that he did not satisfy s 22(9)(d), in that he did not have a close and continuing association with Australia. The tribunal affirmed this decision, noting that while Mr Kilpi did meet some of the factors listed in the Australian Citizenship Instructions in force at the time to demonstrate a close and continuing association,573 the factors that he did not satisfy outweighed these.574 Mr Kilpi gave evidence about his love and deep affection for Australia and his previous inability to relocate to Australia due to family and personal commitments in Finland. However, the tribunal found it “difficult to understand why he has not exploited opportunities to visit here and engage with the community he aspires to join”,575 given his flexible employment situation and economic means. While the tribunal acknowledged that it is “not inconceivable that a person who has spent little time here but has many other factors establishing a connection might aggregate sufficient weight to tip the scales in favour of a grant of citizenship”,576 it concluded that Mr Kilpi did not have a sufficiently close and continuing connection with Australia to warrant approval of his application. requirement for the applicant to have been present in Australia for at least 365 days during the four-year period (unless the Australian citizen spouse or de facto partner was working outside Australia as a Commonwealth officer or a State or Territory officer). See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (amended s 22(9) – (10), new s 22(12)). 573 In particular, the tribunal noted the length of Mr Kilpi’s relationship with his wife, who is an Australian citizen, the expression of his intention to reside in Australia and the fact that he held two Australian bank accounts. 574 The tribunal stated (at [67]): “[Mr Kilpi] does not have children who are Australian citizens nor does he have extended family here. He has visited Australia on four occasions, twice in the last four years but then for 47 days in total. He has not resided in Australia, as opposed to being present. He engaged in some work at Monash University between 1990 and 1995 but not subsequently. He has never owned real estate in Australia. He believed that he may have paid income tax from earnings from his employment at Monash University.” 575 Kilpi and Minister for Immigration and Citizenship (2012) 135 ALD 649; [2012] AATA 605 at [70]. 576 Kilpi and Minister for Immigration and Citizenship (2012) 135 ALD 649; [2012] AATA 605 at [51].

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In contrast, in the decision of Plange and Minister for Immigration and Border Protection [2013] AATA 837, the applicant was held to have a close and continuing connection with Australia. The applicant was a citizen of Ghana and Canada, and had been an Australian permanent resident since September 2005. In September 2011, the applicant lodged an application for a conferral of Australian citizenship. However, it was rejected on the grounds that the applicant did not meet the residency requirement and s 22(9) did not apply because the applicant did not have a close and continuing association with Australia. The applicant had been married to an Australian citizen for 14 years and had been working as an adviser to AusAID, based in Port Moresby, Papua New Guinea, since January 2009, providing guidance and technical assistance on the PNG-Australia HIV and AIDS Program and the Pacific HIV Response Fund. In the last four years, he had only been present in Australia for 131 days. However, the tribunal considered that: the combination of [the applicant’s] long marriage to an Australian citizen, his Australian born and citizen child, the peculiar demands of the work he undertakes on behalf of AusAID, the fact of his continuing to undertake work on behalf of an Australian international aid agency, the extraordinarily difficult conditions in the site of that work, his long established abode in Australia, his banking and financial investments in Australia, the frequency and regularity of his returns to Australia, his well thought out and ambitious plans for a future based in Australia and the magnitude of the contribution he hopes to make to Australian society, all point to a continuing association with Australia of considerable depth and purpose.

In this case, the tribunal decided that the applicant should be considered as having been present in Australia during the period of four years prior to his application for citizenship, in accordance with the discretion provided for in s 22(9) of the 2007 Act. Finally, similar to the discretion available for spouses or de facto partners of Australian citizens, if the applicant holds a permanent visa granted to them because they were in an interdependent relationship with an Australian citizen577 and is still in that interdependent relationship, then the Minister may treat periods spent overseas by the applicant as periods during which they were present as a permanent resident in Australia. Again, the person must have been a permanent resident, held the interdependency visa, been in the relationship, and have had a close and continuing association with Australia for the period they were overseas.578 Special residence requirement – persons engaging in activities that are of benefit to Australia: s 22A [4.810] Section 22A provides an alternative residence requirement for persons engaging in activities that are of benefit to Australia. Section 22A 577 The Migration Regulations 1994 (Cth) formerly provided for three subclasses of permanent Interdependency visas: subclass 110, subclass 814 and subclass 826. Subclass 310 was a provisional visa. 578 2007 Act, s 22(11).

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was inserted into the 2007 Act with effect from 21 September 2009.579 These changes were intended to “create a smoother path to citizenship for elite athletes and people in specialist professions and enable Australia to benefit from the talents and skills they bring to our country”.580 According to the Minister: The revamped requirements will create a fairer system for people who, due to circumstances beyond their control, are currently ineligible for citizenship. These changes will lead to more gold medals for Australia at sporting events, as well as providing a real win for the national workforce.581

If an applicant satisfies the special residence requirement in s 22A, then they need not satisfy the general residence requirement in s 22 in order to be eligible for a conferral of Australian citizenship under s 21(2), (3) or (4). Section 22A(1) states: Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if: (a) the following apply: (i) the applicant is seeking to engage in an activity specified under subsection 22C(1); (ii) the applicant’s engagement in that activity would be of benefit to Australia; (iii) the applicant needs to be an Australian citizen in order to engage in that activity; (iv) in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and (v) the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity; and (b) the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and (c) the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and (d) the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and (e) the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and 579 See Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth). 580 Parliamentary Library (Cth), Bills Digest, No 20 of 2009-10 (10 September 2009): http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0910/ 10bd020. 581 Senator Chris Evans, “Citizenship changes for elite athletes and frequent flyers”, Media Release (31 August 2009): http://www.pandora.nla.gov.au/pan/67564/20091217-0059/ www.minister.immi.gov.au/media/media-releases/2009/ce09078.html.

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(f) the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.

Rather than needing to satisfy the general residence requirement in s 22, an individual covered by s 22A must have been a permanent resident for the two years prior to making their citizenship application, ordinarily resident in Australia during that period, physically present for 180 days (six months) during that period (including 90 days in the 12 months immediately prior to the application), and require Australian citizenship to represent Australia in a specified activity. The application must be supported by a relevant peak body. Specified activities and organisations [4.820] The activities currently specified582 for the purposes of s 22A(1)(a)(i) are: • employment by the Commonwealth583 in a position that requires a Negative Vetting 2 or higher security clearance; or • participation in an Australian team in certain competitions.584 The organisations currently specified for the purposes of s 22A(1)(b) are a Department, an Executive Agency, or a Statutory Agency of the Commonwealth, the Australian Olympic Committee, the Australian Paralympic Committee, Tennis Australia, and Cricket Australia. It is important to note that the special residence requirement in s 22A is much narrower in its application than that in the 1948 Act, which allowed the Minister some flexibility in individual cases.585 Under s 13(4)(b) of the 1948 Act, decision-makers could treat a period during which a permanent resident was outside Australia as if the person was in Australia if the person was engaged in activities that the Minister considered beneficial to Australia. However, s 22A of the 2007 Act now only applies if the applicant is engaged in one of the activities specified for the purposes of s 22A(1)(a)(i). 582 Section 22C gives the Minister the power to specify activities for the purposes of s 22A(1)(a)(i) by legislative instrument. At the time of writing, the current instrument is IMMI 13/056 Special Residence Requirement (Section 22C) (29 May 2013 – Brendan O’Connor). 583 In a Department, Executive Agency, or Statutory Agency of the Commonwealth. 584 These competitions are the Olympic Winter Games, the Paralympic Winter Games, the Olympic Summer Games, the Paralympic Summer Games, the Davis Cup Competition, the Federation Cup Competition, and qualifying events for all of these competitions, as well as any men’s or women’s International Cricket Match, being any International Test Match, International One Day Match, Twenty20 International Match, any match played as part of an International Cricket Council (ICC) event or other matches organised or sanctioned by the ICC from time to time to which the ICC deems it appropriate that the ICC Regulations should apply. 585 See comments to this effect in Jafar and Minister for Immigration and Citizenship [2012] AATA 577, where the tribunal found that special residence concessions were available only to those people satisfying the conditions specified by legislative instrument pursuant to s 22C.

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There has not yet been a case in the AAT or the courts where the applicant has engaged in a specified activity, but failed to fulfil the requirement in s 22A(1)(a)(ii) that the applicant’s engagement in that activity would be of benefit to Australia. For historical purposes and to illuminate the meaning of “benefit to Australia”, a discussion of cases under the former s 13(4)(b), concerning this issue, is at [4.850]. Alternative residence requirements [4.830] In particular circumstances, even the special residence requirements may be departed from. Section 22A(1A) of the Act was inserted with effect from 21 June 2013586 whereby the Minister has a personal discretion587 in certain circumstances to determine that the special residence requirements in paragraphs (d) to (g) of s 22A(1)588 do not apply in relation to an applicant. The amendment was made for the purpose of providing “an alternative pathway to Australian citizenship for a small number of people in certain circumstances … where a person has spent some time in Australia and has demonstrated an ongoing commitment to Australia”.589 In particular, the government was interested in securing Australian citizenship for Fawad Ahmed, a Pakistan-born spin bowler, in time for the 2013 Ashes cricket series in England.590 The amendment Bill was introduced into the House of Representatives on 30 May 2013 and the Act received Royal Assent on 23 June 2013, illustrating how quickly the Act can be amended when the government is motivated to change it.

586 See the Australian Citizenship Amendment (Special Residence Requirements) Act 2013 (Cth). 587 Section 22A(6) states that the discretion may only be exercised by the Minister personally. This power cannot be delegated. 588 That is, the requirements that: • the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application: s 22A(1)(d); and • the applicant was ordinarily resident in Australia throughout the period of two years immediately before the day the applicant made the application: s 22A(1)(e); and • the applicant was a permanent resident for the period of two years immediately before the day the applicant made the application: s 22A(1)(f); and • the applicant was not present in Australia as an unlawful non-citizen at any time during the period of two years immediately before the day the applicant made the application: s 22A(1)(g). 589 Australian Citizenship Amendment (Special Residence Requirements) Bill 2013 (Cth) Explanatory Memorandum at [42]–[43]. 590 ABC AM, “Fawad Ahmed on Ashes fast-track alert as Parliament moves for citizenship law changes”, ABC News (online) (30 May 2013): http://www.abc.net.au/news/201305-30/fawad-ahmed-on-alert-as-parliament-moves-for-citizenship-law-ch/4722380.

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Although Mr Ahmed ultimately missed out on selection in Australia’s Ashes side,591 the amendment remains. Under s 22A(1A), the Minister may determine, in writing, that paragraphs (d) to (g) of s 22A(1) do not apply to an applicant if the Minister is satisfied that: (a) paragraphs (1)(a) to (c) of s 22A apply;592 (b) the applicant satisfies all other requirements in the relevant eligibility provision in s 21;593 (c) the applicant was a permanent resident for 90 days before making their application;594 and (d) the applicant was not an unlawful non-citizen at any time during the 180 days before making their application.595

In addition, if the applicant becomes an Australian citizen in circumstances where the Minister exercises the power under s 22A(1A), the applicant is required to undertake596 that: (a) the applicant will be ordinarily resident in Australia throughout the period of 2 years beginning on the day the applicant becomes an Australian citizen;597 and (b) the applicant will be present in Australia for a total of at least 180 days during that 2 year period;598 and (c) the applicant understands the effect of s 34A,599 which gives the Minister the power to revoke an individual’s citizenship if the above requirements are not fulfilled.

The Minister must table a statement stating that the he or she has exercised the power in s 22A(1A) in both Houses of Parliament within 15 sitting days of that House after the applicant becomes an Australian citizen.600 591 But note that he has since represented Australia in Twenty20 and One Day International matches. 592 That is, the applicant satisfies the requirement to be participating in a specified activity for the benefit of Australia; this is supported in writing by a specified organisation, and the applicant has been present in Australia for a total of at least 180 days during the period of two years immediately before the day the applicant made the application: see 2007 Act, s 22A(1A)(a). 593 That is, 2007 Act, s 21(2)(a), (b), (d), (e), (f), (g) and (h), or s 21(3)(a), (b), (d), (e) and (f), or s 21(4)(a), (b), (c), (e) and (f), as applicable to the applicant: see 2007 Act, s 22A(1A)(b). 594 2007 Act, s 22A(1A)(c). 595 2007 Act, s 22A(1A)(d). 596 Under the 2007 Act, s 22A(8), the Minister may approve a form for the purposes of the undertaking in s 22A(1A)(e). 597 2007 Act, s 22A(1A)(e)(i). 598 2007 Act, s 22A(1A)(e)(ii). 599 2007 Act, s 22A(1A)(f). Section 34A is discussed at [4.1240]. 600 2007 Act, s 22A(9).

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Other exceptions and discretions [4.840] As with the general residence requirement, certain qualifications apply to the special residence requirement in s 22A. Under s 22A(2), a person will not satisfy the requirement in s 22A(1)(c) that the applicant be present in Australia for 180 days in the two years before the application is made if the person was confined in a prison or a psychiatric institution by order of a court in connection with proceedings for an offence against Australian law in that period.601 The Minister has a discretion to decide that s 22A(2) does not apply if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for the provision to apply.602 In circumstances in which an administrative error has occurred to prevent the applicant from satisfying the relevant provision, the Minister may treat a period as one in which an applicant was a permanent resident for the purposes of paragraphs (1)(f) or (1A)(c)603 or was not an unlawful non-citizen for the purposes of paragraphs (1)(g) or (1A)(d).604 Historical consideration of activities beneficial to Australia [4.850] The special residence concession in the 1948 Act was more flexible than the special residence provisions of the 2007 Act. Section 13(4)(b)(i) of the 1948 Act allowed the Minister to treat a period during which the applicant was a permanent resident and not present in Australia, and was engaged in activities that the Minister considered beneficial to the interests of Australia, as satisfying the residence timing.605 The period must have been relevant to s 13(1)(d) and (e) in that the activities during that period assisted in fulfilling the residence requirements within the five years before furnishing the application.606 The most contested aspect of the provision was the definition of “activities beneficial to Australia”.607

601 2007 Act, s 22A(2). 602 2007 Act, s 22A(3). See discussion at [4.780]. 603 2007 Act, s 22A(4). 604 2007 Act, s 22A(5). The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed an amendment to the Act which would have enabled the Minister to prescribe circumstances in which he or she may treat a period as one in which the person was not present in Australia as an unlawful non-citizen: see Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 22A(5A)). 605 In Lee and Department of Immigration and Multicultural Affairs [1998] AATA 799 at [10], McMahon DP stated that s 13(4)(b) is an “ameliorative provision. It is not, and was never intended to be, the standard path to the achievement of Australian citizenship. It was intended to deal only with anomalies where the public interest would otherwise be denied if an applicant was refused a grant of citizenship.” 606 Future benefit may not be sufficient. There are contrasting decisions in the AAT regarding the interpretation of this section: see Melloway and Department of Immigration and Ethnic Affairs (1993) 32 ALD 360 (Melloway) where the tribunal held that the test is not whether the activities undertaken overseas might be expected to benefit Australia

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The Australian Citizenship Instructions in force at the time provided guidance on the issue, stating that s 13(4)(b)(i) required the applicant to have been “personally engaged” in the activities beneficial to Australia and not just for “the company or organization for which the applicant worked”; there must have been a series of activities and not “just a one-off transaction” and the activities must have been beneficial to Australia during the relevant period, “irrespective of whether benefits may accrue in the future”.608 Looking at the legislation, and s 13(4) in particular, in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86 (Roberts), Einfeld J confirmed that “beneficial to the interests of Australia” should be construed according to its ordinary meaning. In his view (at 87), the term: means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than private interests of the respondent. The section requires some objective benefit to Australia.609

at some time in the future; the test is whether the activities overseas were of benefit to the interests of Australia at the time those activities were undertaken. In contrast, in Wang and Department of Immigration and Multicultural Affairs [1998] AATA 206, Gerber DP rejected the view in Melloway and examined further the earlier Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82, and held that it did not suggest that “in exercising the discretion one must have regard only to fruit ready to be picked”. In Li and Department of Immigration and Multicultural Affairs [1999] AATA 897, the tribunal noted that an applicant director of an export company of Australian products into China was found to be engaged in activities beneficial to the interests of Australia. The tribunal noted that the discretion should not be construed narrowly simply because tangible results of export promotions may not be immediately apparent. The tribunal further found that this was not to engage in speculation but to realise that developing an export trade can take time to develop. In Latiff and Minister for Immigration and Multicultural Affairs [2000] AATA 1158, the applicant claimed that his employment as a pilot with Singapore Airlines allowed him to gain skills of future benefit to Australia. The tribunal found that the benefit to Australia was residual, remote, and indirect. 607 The Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001, set out examples of activities beneficial to the interests of Australia at [4.3.20]. However, see more detailed discussion of AAT decisions below. 608 Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001 at [4.3.15]. 609 In an earlier decision, Re Fraser and Minister of State for Immigration, Local Government and Ethnic Affairs (unreported, AAT, Decision No S91/205, 15 October 1991), the tribunal stated that the term “means something in the nature of activities which achieve recognition of Australia or of Australian achievements or commercial advantage for Australia, or increase the international respect and goodwill of Australia”. This case was referred to in the Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001 at [4.3.20]. The case of Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 also emphasised the public character of the benefit.

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Einfeld J also confirmed (at 87) that family ties and a close association with Australia are not factors relevant to the phrase “beneficial to Australia” in its application to the residence requirements in s 13(1)(d) and (e) of the 1948 Act. Reviewing the merits of the case in Roberts, the applicant was a permanent resident for over 20 years but had not taken out Australian citizenship. He had then gone overseas for periods, which meant that he did not fulfil the requirements of s 13(1)(d) and (e) at the time of his application for citizenship. While overseas he worked as an oil rigger in Great Britain and then for a British company in Brunei. For this activity to qualify as “beneficial to Australia”, Einfeld J sought evidence to demonstrate such benefits. His examples (at 87) indicated the meaning of the term and included the following requirements: • if the person concerned was studying or using new techniques or materials with a view to introducing them to Australian construction, or if he was taking Australian technology to these places; • if experiences overseas increased the person’s chances for remunerative work and advancement in the industry in Australia, a relevant advantage may be evidenced; and • even if the particular person paid Australian tax on the wages earned in such places, Australia might derive some benefit. Numerous AAT decisions provided further guidance to prospective applicants about this section.610 In Tan and Department of Immigration and Multicultural Affairs [1999] AATA 222, the tribunal stated that the test imposed by s 13(4)(b)(i) requires evidence identifying the benefits propounded. For example, the applicant may have been “assiduous in advancing Australian interests in his business negotiations”, but the actual benefits are ephemeral.611 Listed below are examples of AAT decisions made prior to 2002612 on the meaning of “beneficial to the interests of Australia”. While this list is interesting for historical purposes, the similarity of language between the 1948 Act and the 2007 Act means that it may also provide relevant guidance for applicants seeking to satisfy s 22A(1)(a)(ii) of the 2007 Act.613 The following AAT applications were not successful: • An applicant employed as the South Australian Government’s commercial representative in Hong Kong indicated her professionalism, yet it was not of benefit to the interests of Australia.614 610 In fact, the majority of AAT cases under the 1948 Act concern this section. 611 Tan and Department of Immigration and Multicultural Affairs [1999] AATA 222 at [13]. 612 That is, when the first edition of this book was published. 613 For full text decisions of the AAT since 1976 as selected by the tribunal, see: http://www.austlii.edu.au/au/cases/cth/aat. 614 See Re Tse and Minister for Immigration, Local Government and Ethnic Affairs [1992] AATA 353.

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• An applicant who had worked in Brunei for a subsidiary of an Australian company did not satisfy the requirements because any benefits the applicant had evidenced were when the applicant had resided in Australia, and while the employer had enhanced the reputation of its Australian parent company, this fell short of demonstrating that the applicant’s activities were beneficial to the interests of Australia.615 • The applicant’s role as an overseas sales manager for an Australian company operating retail supermarkets was insufficient to satisfy the discretion because the AAT held that it was unable to determine if the applicant’s overseas activities were beneficial to the balance of trade and so not recognisable as beneficial to Australia’s interests.616 • An applicant who owned properties and a business in Melbourne and claimed that profits from overseas investments were invested in Australia.617 • An applicant who worked overseas and spent 10% of his working time as a director of an Australian company employing two Australians with exports worth $1 million per year, was not deemed to hold a sufficient “public interest” character as it was directed more for the private interest of the applicant and therefore their application was unsuccessful.618 • An applicant who carried out duties as a director of the Australian subsidiary of a South African company was not engaged in activities beneficial to the interests of Australia.619 • An applicant managing the Australian/New Zealand department of a French bank based in Cambodia was engaged in predominantly the private interests of the applicant’s employer. The tribunal found that the nexus between Cambodia’s economic growth and an objective benefit to Australia was lacking.620 • An applicant employed by the United Nations in Nepal claimed he used maximum Australian resources and consultants in his employment. The tribunal rejected this argument stating the applicant was an international civil servant unable to favour the interests of one state over another, and that the applicant acted in his own interests and those of his employer. While Australia had an interest in furthering the goals of the United Nations and having an Australian permanent resident as a United Nations employee is of some indirect benefit to 615 See McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447. 616 See Lo (Man Bun) and Department of Immigration and Ethnic Affairs (1993) 32 ALD 235. 617 See Yu Feng Chen and Li-Li Chou Chen v Department of Immigration and Ethnic Affairs [1994] AATA 47, cited in Cronin, Glass, Goddard and Doust, Australian Immigration Law (2001) at [3610]. 618 See Chan (Cheuk Yeun Raphael) and Department of Immigration and Ethnic Affairs [1995] AATA 210, cited in Cronin, Glass, Goddard and Doust, Australian Immigration Law (2001) at [3581]. 619 See Michael Movsas v Department of Immigration and Ethnic Affairs [1996] AATA 52. 620 See Jimmy Tinamisan v Minister for Immigration and Multicultural Affairs (unreported, AAT, Decision No N95/1766, 30 January 1997).

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Australia, there was no clear nexus between the applicant’s activities and the claimed objective benefits to Australia.621 • An applicant residing in Hong Kong and working in the finance industry with a 60% Australian client base, promoting and using Australian finance products and claiming that investment in Australian financial products created jobs in Australia, was found not to be of “public interest” benefit to Australia. The overriding purpose of the investment was to return a profit to the proprietors.622 • An aspiring opera singer contended that, as an ultimate goal, she was equipped with the ability to do credit to Australia. The tribunal noted that while she was engaged in opera studies, the applicant pursued her own private interests and not those of the Australian public.623 • An applicant whose family business in Manila supported his newsagency in Perth. The tribunal found that paying taxes in Australia and providing employment opportunities in Australia was too small and insignificant to warrant definition as activities beneficial to the interests of Australia.624 • An Australian import business venture set up by an applicant in Hong Kong benefited shareholders who were not Australian and was thus of no benefit to Australia. Moreover, the business was not successful.625 • An applicant who completed undergraduate Veterinary Science studies in New Zealand claimed that the course of study would bring benefits to the Veterinary Science field in Australia. The tribunal held that the benefit was to the applicant personally, not to Australia.626 The following AAT applications were successful: • An applicant with Australian businesses that employed 20 people and promoted Australian business in Asia was found by the AAT to have benefited the Australian economy, through promotional activities, and in a manner satisfying the public interest requirement. Moreover, the Australian-based business stimulated the Australian economy and provided employment. While the applicant privately benefited, there was also a public interest benefit.627 • Activities may be considered to be beneficial to an individual as well as to Australia as a whole; they are not mutually exclusive. The applicant 621 See Dr Mohammed Amanullah Khan v Minister for Immigration and Multicultural Affairs (unreported, AAT, Decision No N96/1198, 30 October 1997). 622 See Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329. See also Cho and Department of Immigration and Multicultural Affairs [1997] AATA 971 where an applicant claimed that his property interests in Australia and his Australian representation of products in the Singapore market brought him within the discretion; however, the tribunal held that they were largely private interests and not in the public interest of Australia. 623 See Lee and Department of Immigration and Multicultural Affairs [1998] AATA 799. 624 See Henry Guan Lim Tan and Minister for Immigration and Multicultural Affairs [1998] AATA 811. 625 See Lai and Minister for Immigration and Multicultural Affairs [2001] AATA 458. 626 See Goodman and Minister for Immigration and Multicultural Affairs [2002] AATA 40. 627 See Kao (Ming Nan) and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916.

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had secure markets from overseas competitors, promoted Australian products and assisted trade delegations with contacts, or directly approached prospective purchasers.628 • An applicant who promoted and achieved exports of Australian technology and manufactured goods to South-East Asia and China deemed as “beneficial to Australia”.629 • An applicant who had lived in Sydney for ten years and then moved to Papua New Guinea (PNG) to work with an Australian company, showed that motivation for the move was a desire not to be a welfare burden on Australia and it was accepted that the applicant’s work to promote Australian technology in PNG was beneficial to the interests of Australia.630 • An applicant involved in the marketing and promotion of Australian services in the United States satisfied the tribunal that those services were “beneficial to the interests of Australia”.631 • An applicant who was involved in developing a market for Asian customers of Australian products, lodged tax returns in Australia and had investments and property in Australia was found to be acting beneficially “in the interests of Australia”.632 • A business established in India by an applicant resulted in an objective and direct flow-on economic benefit to the public interests of Australia. Accordingly, the applicant was engaged in activities beneficial to the interests of Australia.633 • An applicant and director of a company involved in assisting migration and study exchanges for Taiwanese students to Australia partook in the promotion and export of Australian education and, as such, benefited Australia.634 • An applicant who sold marine insurance in China on behalf of an Australian insurer, supported the employment of three Australian citizens and advised migrants intending to come to Australia about Australian investment opportunities was engaged in activities beneficial 628 See Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762. 629 See Chai and Minister for Immigration and Ethnic Affairs (1994) 36 ALD 751. 630 See Page and Department of Immigration and Ethnic Affairs [1995] AATA 20, cited in Cronin, Glass, Goddard and Doust, Australian Immigration Law (2001) at [3670]. See also Ramage and Department of Immigration and Ethnic Affairs [1995] AATA 511 where an applicant’s activities, which included establishing a business in Papua New Guinea, were found to be of benefit to Australia’s interest. The tribunal noted in Kao (Ming Nan) and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916 that the promotion and exportation of Australian commodities was beneficial to the Australian economy and, accordingly, beneficial to the public interests of Australia as a whole. The tribunal determined that the principle laid down in Re Kao regarding Australian commodities could be extended to the exportation of Australian technology and know-how, making the principle applicable in the present case. 631 See Abraham and Department of Immigration and Multicultural Affairs [1997] AATA 446. 632 See Wang and Department of Immigration and Multicultural Affairs [1998] AATA 206. 633 See Nensey and Minister for Immigration and Multicultural Affairs [2001] AATA 723. 634 See Yang and Minister for Immigration and Multicultural Affairs [2001] AATA 176.

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to Australia’s interests. Furthermore, the tribunal noted that when the applicant was not engaged directly in Australian work, he was networking, which directly benefited the promotion of Australian investment.635 • An applicant who was a substantial investor and property developer of Australian projects in Thailand and promoted Australian products and exports was engaged in activities beneficial to Australia. Furthermore, the tribunal considered the importance of the applicant’s good relations with neighbours from a trade and defence point of view.636 • An applicant who was involved in the export of Australian cheese to Korea was able to show a particular benefit to the dairy industry in Queensland and thus fell within the definition of activities which benefit Australia.637 Special residence requirement – persons engaged in particular kinds of work requiring regular travel outside Australia: s 22B [4.860] Operating in a similar fashion to s 22A, s 22B provides an alternative residence requirement for persons engaging in particular kinds of work requiring regular travel outside Australia. If an applicant satisfies the special residence requirement in s 22B, then they need not satisfy the general residence requirement in s 22 in order to be eligible for a conferral of Australian citizenship under s 21(2), (3) or (4). Section 22B(1) states: Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if: (a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and (b) the following apply: (i) the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application; (ii) for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and (iii) the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and (c) the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and (d) the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and 635 See Lan and Minister for Immigration and Multicultural Affairs [2001] AATA 362. 636 See Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425. This case also provides a useful overview of the decided cases on this section. 637 See Kim and Minister for Immigration and Ethnic Affairs [2002] AATA 102.

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(e) the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and (f) the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application.

Section 22B was inserted into the 2007 Act with effect from 21 September 2009.638 It was intended to address the issue of individuals who travel frequently for work failing to satisfy the general residence requirement in s 22: Due to their professional travel commitments, people who are ordinarily resident in Australia are unable to be present in the country for the required period of time and this effectively excludes them from becoming Australian citizens.639

Rather than needing to satisfy the general residence requirement in s 22, an individual covered by s 22B must have been a permanent resident for the 12 months prior to making their citizenship application, lawfully resident in Australia for four years prior to applying and ordinarily resident in Australia during that period, physically present for 480 days (16 months) during that period (including 120 days in the 12 months immediately prior to the application), and have been required to travel extensively outside Australia due to the nature of their specific profession. The applicant’s current employer must support the application. Engaged in specified work [4.870] Section 22B requires that the applicant have been engaged in a specified kind of work for a total of at least two years during the four years immediately before they made their application.640 During that period, the applicant’s regular travel outside Australia must have been because of that work.641 The kinds of work currently specified642 for the purposes of s 22B(1)(a) are those undertaken as part of their duties as: 638 See Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth). 639 Senator Chris Evans, “Citizenship changes for elite athletes and frequent flyers”, Media Release (31 August 2009): http://www.pandora.nla.gov.au/pan/67564/20091217-0059/ www.minister.immi.gov.au/media/media-releases/2009/ce09078.html. 640 2007 Act, s 22B(1)(b)(i). 641 2007 Act, s 22B(1)(b)(ii). The applicant in Kamore and Minister for Immigration and Citizenship (2011) 124 ALD 107; [2011] AATA 765 was a pilot, but he was working for a company in Africa. He had initially left Australia, after studying and working in Australia with a goal of becoming a Qantas pilot, because of unusual family circumstances. After the issues were resolved, the applicant could not afford to return to Australia immediately. Despite the fact that the applicant’s work was of a kind specified for the purposes of the section, he did not satisfy s 22B(1A)(b). 642 Section 22C gives the Minister the power to specify activities for the purposes of s 22B(1)(a) by legislative instrument. At the time of writing, the current instrument is IMMI 13/056 Special Residence Requirement (Section 22C) (29 May 2013 – Brendan O’Connor).

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• • • •

a member of the crew of a ship; or a member of the crew of an aircraft; or engaged in work on a resources installation or a sea installation; or a Chief Executive Officer of an S&P/ASX All Australian 200 listed company; or • an Executive Manager of an S&P/ASX All Australian 200 listed company; or • a scientist employed by an Australian university who has attained a PhD in their field of speciality and is undertaking research and development of benefit to Australia; or by the Commonwealth Scientific and Industrial Research Organisation; or by a medical research institute which is a member of the Association of Australian Medical Research Institutes (AAMRI); or • a medical specialist, internationally renowned in their field, who is a fellow of an organisation listed in Sch 4 Pt 1 of the Health Insurance Regulations 1975 (Cth) and holds a relevant qualification in relation to the organisation; • a person who is a writer or is engaged in the visual or performing arts and who is the holder of, or has held, a Distinguished Talent Visa. As with s 22A, the special residence concession in s 22B is only available to applicants who satisfy the specified conditions. The provision does not mirror the broader discretion formerly conferred on the Minister under s 13(4)(b)(i) of the 1948 Act.643 Alternative residence requirements [4.880] As with s 22A,644 the special residence requirement in 22B may be departed from in certain circumstances. Section 22B(1A) of the Act was inserted with effect from 21 June 2013.645 Under s 22B(1A), the Minister has a personal discretion646 to determine647 that the special residence requirements in paragraphs (c) to (g) of s 22B(1)648 do not apply in relation to an applicant, if the Minister is satisfied that: 643 Section 13(4)(b)(i) of the 1948 Act is discussed above at [4.850]. 644 See discussion at [4.830]. 645 See Australian Citizenship Amendment (Special Residence Requirements) Act 2013 (Cth). For a discussion of the context of the amendment, see [4.830]. 646 Section 22B(6) states that the discretion may only be exercised by the Minister personally. This power cannot be delegated. 647 The determination must be in writing. 648 That is, the requirements that: • the person was present in Australia for a total of at least 480 days during the period of four years immediately before the day the person made the application: s 22B(1)(c); and • the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application: s 22B(1)(d); and • the person was ordinarily resident in Australia throughout the period of four years immediately before the day the person made the application: s 22B(1)(e); and

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(a) paragraphs (1)(a) and (b) of s 22B apply;649 (b) the person’s engagement in the kind of work concerned is of benefit to Australia;650 (c) the applicant satisfies all other requirements in the relevant eligibility provision in s 21;651 (d) the applicant was present in Australia for 180 days of the 2 years prior to their application;652 (e) was a permanent resident for 90 days before making their application;653 and (f) was not an unlawful non-citizen at any time during the 180 days before making their application.654

In addition, the applicant is required to undertake655 that if he or she becomes an Australian citizen in circumstances where the Minister exercises the power under s 22B(1A): (a) the applicant will be ordinarily resident in Australia throughout the period of 2 years beginning on the day the applicant becomes an Australian citizen;656 and (b) the applicant will be present in Australia for a total of at least 180 days during that 2 year period;657 and (c) the applicant understands the effect of s 34A,658 which gives the Minister the power to revoke an individual’s citizenship if the above requirements are not fulfilled.

• the person was a permanent resident for the period of 12 months immediately before the day the person made the application: s 22B(1)(f); and • the person was not present in Australia as an unlawful non-citizen at any time during the period of four years immediately before the day the person made the application: s 22B(1)(g). 649 That is, the applicant was engaged in a specified kind of work for a total of at least two years during the four years immediately before they made their application and, during that period, the applicant’s regular travel outside Australia was because of that work: 2007 Act, s 22B(1A)(a). 650 2007 Act, s 22B(1A)(b). The meaning of the term “benefit to Australia” has not yet been tested in the context of s 22B(1A), but some guidance may be gleaned from consideration of a similar phrase in s 13(4)(b)(i) of the 1948 Act. See discussion at [4.850]. 651 That is, s 21(2)(a), (b), (d), (e), (f), (g) and (h), or s 21(3)(a), (b), (d), (e) and (f), or s 21(4)(a), (b), (c), (e) and (f), as applicable to the applicant. See 2007 Act, s 22B(1A)(c). 652 2007 Act, s 22B(1A)(d). 653 2007 Act, s 22B(1A)(e). 654 2007 Act, s 22B(1A)(f). 655 Under 2007 Act, s 22B(8), the Minister may approve a form for the purposes of the undertaking in s 22B(1A)(g). 656 2007 Act, s 22B(1A)(g)(i). 657 2007 Act, s 22B(1A)(g)(ii). 658 2007 Act, s 22B(1A)(h). Section 34A is discussed at [4.1240].

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The Minister is required to table a statement stating that he or she has exercised the power in s 22B(1A) in both Houses of Parliament within 15 sitting days of that House after the applicant becomes an Australian citizen.659 Other exceptions and discretions [4.890] As with the general residence requirement and special residence requirement in s 22A, certain qualifications apply to the special residence requirement in s 22B. Under s 22B(2), a person will not satisfy the requirements of presence in Australia in s 22B(1)(c) or (1A)(d) if the person was confined in a prison or a psychiatric institution by order of a court in connection with proceedings for an offence against Australian law in that period.660 The Minister has a discretion to decide that s 22B(2) does not apply if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for the provision to apply.661 In circumstances in which an administrative error has occurred to prevent the applicant from satisfying the relevant provision, the Minister may treat a period as one in which an applicant was a permanent resident for the purposes of paragraphs (1)(f) or (1A)(e)662 or was not an unlawful non-citizen for the purposes of paragraphs (1)(g) or (1A)(f).663 Defence service requirement: s 23 [4.900] The final alternative residence requirement applies to individuals or their family members who have completed defence service.664 Section 23(1) is the equivalent of s 13(3) and (3A) of the 1948 Act. It provides that a person who satisfies the defence service requirement for the purposes of s 21665 has completed relevant defence service. That is, if the applicant has undertaken at least 90 days’ service666 in the Permanent 659 2007 Act, s 22B(9). 660 2007 Act, s 22B(2). 661 2007 Act, s 22B(3). See discussion at [4.780]. 662 2007 Act, s 22B(4). 663 2007 Act, s 22B(5). The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed an amendment to the Act which would have enabled the Minister to prescribe circumstances in which the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen: see Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 22B(5A)). 664 This section indicates, as does other legislation, that citizenship is not a requirement for defence service. This is discussed in Chapter 1 at [1.100]. 665 See 2007 Act, s 21(2)(c), (3)(c), (4)(d). 666 The service need not be continuous: see definition of “relevant defence service” in s 23(4).

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Forces667 or the Reserves,668 or has been discharged from that service before completing the 90 days by virtue of becoming medically unfit for service due to that service. The meaning of “service” was considered by the AAT in Re Keenan and Minister for Immigration and Citizenship (2008) 104 ALD 453, where S A Forgie DP found (at [26]) that s 23 requires: an assessment of the time that a person served in either the permanent forces or the reserve. Therefore, it requires an assessment of the time that he or she carried out, or was available to carry out as required by the [Defence Act 1903 (Cth)] or [Defence (Personnel) Regulations 2002 (Cth)], the duties or performed the functions of the position to which he or she was appointed, if an officer, or in which he or she enlisted, if an enlisted member.

In that case, the applicant was found to have been a member of the army reserve for the requisite period, despite only having actively participated in activities for three-and-a half days during that period (two of which were compulsory training days). In response to this decision, the definition of “relevant defence service” in the Act was amended with effect from 1 January 2013.669 With respect to service in the Reserves, the person will have completed the requisite service only if he or she has “undertaken a total of at least 90 days service on which he or she was required for, and attended and was entitled to be paid for, duty in one or more of the Reserves (whether or not that service was continuous)”.670 Since 1 January 2013,671 the defence service requirement may also be satisfied by members of the family unit672 of people who have completed relevant defence service,673 or died while undertaking defence service674

667 That is, the Permanent Navy, the Regular Army or the Permanent Air Force: s 23(4). In Saunders and Minister for Immigration and Citizenship [2012] AATA 666, the AAT found that two years’ service with the Commonwealth Lighthouse Service did not constitute relevant defence service. 668 That is, the Naval Reserve, the Army Reserve or the Air Force Reserve: s 23(4). The Australian Citizenship Council in its report, Australian Citizenship for a New Century (February 2000) p 49, recommended that previous non-Australian citizen members of the reserve forces who were employed on a full-time basis and had completed not less than six months service be included in the residence exemption. The government accepted this recommendation and incorporated these changes: see Australian Citizenship Legislation Amendment Act 2002 (Cth) Sch 2 Items 1, 4 and 37. 669 See Australian Citizenship Amendment (Defence Families) Act 2012 (Cth) Sch 1. See Australian Citizenship Amendment (Defence Families) Bill 2012 (Cth) Explanatory Memorandum. 670 2007 Act, s 23(4). 671 See Australian Citizenship Amendment (Defence Families) Act 2012 (Cth) Sch 1. 672 As defined in the Migration Act 1958 (Cth). 673 2007 Act, s 23(2). 674 2007 Act, s 23(3).

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and who held a prescribed visa.675 The Citizenship Policy provides extensive guidance on the application of s 23.676 Citizenship by conferral – Minister’s decision [4.910] If a person makes an application for Australian citizenship under s 21, the Minister must approve or refuse the person’s application.677 The Minister may only approve an application under s 21 if the applicant is eligible for Australian citizenship under one of the eligibility categories in s 21.678 If an individual applies for a conferral of citizenship under a category in s 21 other than s 21(8),679 the Minister may refuse to approve the application despite the person being eligible under s 21.680 The question of what is a reasonable time to make a decision is currently being considered by the Federal Court of Australia in relation to an action being brought by the Refugee Council of Australia.681 Section 24 sets out five circumstances in which the Minister must not approve an application for citizenship by conferral under s 21. The Minister must not approve an application under s 21 unless he or she is satisfied as to the identity of the applicant,682 the applicant is not a national security risk,683 and the applicant has not ceased to be an Australian citizen in the 12 months prior to approval of their 675 Under reg 6A of the Australian Citizenship Regulations 2007 (Cth), the following visas are prescribed for s 23(2)(a) and (3)(a) of the 2007 Act: (a) (b) (c) (d)

Employer Nomination (Permanent) (Class EN); Labour Agreement (Migrant) (Class AU); Labour Agreement (Residence) (Class BV); Regional Employer Nomination (Permanent) (Class RN).

676 See Citizenship Policy (Cth) Ch 7A p 102. 677 2007 Act, s 24(1). If the Minister exercised the power under s 22A(1A) or 22B(1A) (relating to departures from the special residence requirements: see [4.830] and [4.880]), the decision must be made by the Minister personally: 2007 Act, s 24(2A). See also the report by the Refugee Council of Australia, Delays in Citizenship Applications for Permanent Refugee Visa Holders (October 2015): http://www.refugeecouncil.org.au/wpcontent/uploads/2015/10/1510-Citizenship-Delays-for-Permanent-Refugees.pdf; and their matter pending before the Federal Court of Australia: http:// www.refugeecouncil.org.au/ourwork/case-explainer-citizenship. 678 That is s 21(2), (3), (4), (5), (6), (7) or (8): 2007 Act, s 24(1A). 679 Confers eligibility on individuals born in Australia who would otherwise be stateless. 680 Under s 21(2), (3), (4), (5), (6) or (7): 2007 Act, s 21(2). 681 See also the report by the Refugee Council of Australia, Delays in Citizenship Applications for Permanent Refugee Visa Holders (October 2015): http://www.refugeecouncil.org.au/ wp-content/uploads/2015/10/1510-Citizenship-Delays-for-Permanent-Refugees.pdf. See further, the Refugee Council website which will post up-to-date information about the case: http://www.refugeecouncil.org.au/ourwork/case-explainer-citizenship. 682 2007 Act, s 24(3). 683 2007 Act, s 24(4) – (4D).

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application.684 These requirements also apply to other categories of citizenship and are discussed at [4.1110]. In addition, and specific to applications for citizenship under s 21, the Minister must only approve an application under s 21(2), (3) or (4) at a time when the applicant is present in Australia, unless the applicant satisfies the special residence requirements in either s 22A or 22B, or the Minister applies s 22(9)685 or (11)686 to the applicant.687 Further, the Minister must not approve an application under s 21 at a time when the applicant is implicated in an offence against Australian law. That is, when proceedings for an offence are pending,688 the applicant is in prison or recently released,689 the applicant is on parole or a behaviour bond,690 or the applicant is confined to a psychiatric institution by order of a court in connection with proceedings for an offence.691 The Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed amendments to s 24(6) of the Act which would have expanded the circumstances in which the Minister must not approve a person becoming an Australian citizen. If the amendments had been passed, the Minister would not have been able to approve a person to become an Australian citizen while the person was subject to an order for home detention, or when the person was subject to a court order for a residential scheme or program (such as for drug rehabilitation or mental illness).692 The Bill lapsed due to the 2016 federal election. Commencement of citizenship and pledge of commitment Day on which citizenship begins [4.920] The pledge of commitment is an important step in obtaining a conferral of Australian citizenship under the Act, and is “the centrepiece of citizenship testing”.693 Under s 28, an applicant for citizenship by 684 2007 Act, s 24(7). 685 Ministerial discretion relating to applicants with a spouse or de facto partner who is an Australian citizen. 686 Ministerial discretion relating to applicants who are in an interdependent relationship with an Australian citizen. 687 2007 Act, s 24(5). 688 2007 Act, s 24(6)(a). 689 The applicant must have been released for more than two years after the end of a serious prison sentence, and for 10 years after the end of a prison sentence in relation to which the applicant is a serious repeat offender: see 2007 Act, s 24(6)(b) – (d). 690 2007 Act, s 24(6)(e) – (g). 691 2007 Act, s 24(6)(h). 692 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (amended s 24(6)(f), (g); new s 24(i), (j)). 693 Department of Immigration and Citizenship, Australian Citizenship Test Review Committee, Recommendations and Government Responses (2008): https:// www.border.gov.au/Citizenship/Documents/recommendations-governmentresponse.pdf. The citizenship test is discussed at [4.610].

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conferral who is required to make a pledge of commitment only becomes an Australian citizen on the day on which they make a pledge of commitment.694 That is, there are two steps to such individuals obtaining Australian citizenship. First, their application must be approved. Second, they must make the pledge of commitment in accordance with the Act.695 If the person is not required to make a pledge of commitment, they become a citizen on the day the Minister approves their application.696 However, if the person is a child aged under 16 at the time they made their application, one or more of the child’s parents applied under s 21 at that time and the child’s and their parent’s application was approved, then the child becomes a citizen at the time their parent becomes an Australian citizen.697 Pledge of commitment [4.930] An applicant for Australian citizenship under s 21 is required to make the pledge of commitment unless the applicant: • was aged under 16 at the time the person made their application to become an Australian citizen; or • at the time of making their application has a permanent or enduring physical or mental incapacity that means they are not capable of understanding the nature of the application, demonstrating a basic knowledge of English or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; or • is covered by s 21(6), (7) or (8) of the Act, which relate respectively to eligibility for a conferral of citizenship based on birth to a former Australian citizen, birth in Papua, and statelessness.698 The words of the pledge, which are set out in Sch 1 of the Act and discussed at [4.120], must be made in public if reasonably practicable and read aloud699 before the Minister or a person authorised by the Minister to receive the pledge.700 694 2007 Act, s 28(1). See Citizenship Policy (Cth) Ch 7 p 65 for a summary of the dates on which applicants for citizenship under s 21 become citizens, depending on whether or not a pledge of commitment is required. 695 See 2007 Act, ss 26, 27. 696 2007 Act, s 28(2). 697 2007 Act, s 28(3). 698 2007 Act, s 26(1). 699 Australian Citizenship Regulations 2007 (Cth) reg 8. 700 2007 Act, s 27(3) – (5). The Minister may authorise a person to receive the pledge in writing or by legislative instrument. The current instrument authorises all Senators and Members of the House of Representatives, certain Department officials, certain diplomatic, consular and trade officials, and certain office-holders in the Australian States and Territories: see Commonwealth of Australia, Instrument of Authorisation, (Determination under subsection 27(5)) (Chris Bowen, IMMI 11/079, 12 December 2011).

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Delayed making of pledge [4.940] Under s 26(3) of the Act, if a person is required to make a pledge of commitment but has not done so, the Minister may determine in writing that the person cannot make the pledge until the end of a specified period, which must not exceed 12 months.701 The Minister may make such a determination if the Minister is satisfied either that the person’s visa may be cancelled under the Migration Act 1958 (Cth) (whether or not the person has been given any notice to that effect), or that the person has or may be charged with an offence under Australian law.702 The Minister may revoke a determination made under s 26(3).703 If the Minister does not follow the procedures set out under s 26(3) and practically delays a successful applicant taking the pledge, this may not have any impact on the lawfulness of any future cancellation of approval: see Grass v Minister for Immigration and Border Protection [2015] FCAFC 44.704 Mrs Grass had been prevented by the Department from making the citizenship pledge despite not having been issued with a notice by the Minister through s 26(3). The Full Court found “it is clear the appellant and her husband were misled over a sustained period of time”705 yet the Minister still retained the power to cancel the approval and prevent Mrs Grass from becoming a citizen.706 Section 26(3) and (4) are the equivalent of s 14C(1) and (2) of the 1948 Act. Consistent with the old Act, the decision to defer the making of the pledge is not reviewable under the 2007 Act, “because this is not a decision to cancel an approval. If a decision to cancel an approval is made at some time before the making of the pledge that decision is reviewable”.707 The 1948 Act contained additional delaying powers for the Minister, which were repealed in the 2007 Act. Under s 14, the Minister could delay considering a citizenship application for up to 12 months if it appeared that at a particular time the Minister would be likely to refuse the application, otherwise than by reason of the operation of s 13(1)(d) or 701 2007 Act, s 26(3), (4). If the Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) had been passed, this period would have been extended to two years. 702 2007 Act, s 26(3). The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 22B(5A)) included amendments that, if enacted, would have enabled the Minister to make such a determination if the Minister was considering cancelling the person’s citizenship approval in certain circumstances: see Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 26(3)(c)). 703 2007 Act, s 26(5). 704 Grass v Minister for Immigration and Border Protection [2015] FCAFC 44. 705 Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 at [25]. 706 See also at [4.950]. 707 Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised). Section 52(1)(c) of the 2007 Act states that the decision to cancel an approval is reviewable.

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(e)708 and, considering the timing, would be likely to grant the application if it was deferred for a period.709 Section 14A enabled the Minister to defer considering an application if it appeared that a visa held by the applicant may have been cancelled under a provision of the Migration Act 1958 (Cth), or the person had been charged, or may have been charged, with an offence.710 Cancellation of approval of citizenship prior to citizenship beginning [4.950] Under s 25 of the Act, if an applicant has not yet become a citizen under s 28,711 the Minister may cancel their citizenship approval in three circumstances. First, the Minister may cancel an approval if the person applied under s 21(2), (3) or (4) and the Minister is satisfied that at the time of the proposed cancellation, the person is not a permanent resident, not likely to reside or to continue to reside in Australia and to maintain a close and continuing association with Australia, or is not of good character.712 The second circumstance is if the person has failed to make a pledge of commitment within 12 months after the day on which he or she received notice of the approval for a reason other than prescribed by the regulations. The regulations prescribe reasons for delay by operation of s 26(3) of the Act, medical reasons and administrative error, and any claim that a reason is a prescribed reason must be supported by a signed statement and written evidence.713 The Citizenship Policy states that a notice of intention to cancel must be sent before an application for citizenship is cancelled because of a failure to make a pledge.714 The AAT upheld a decision to cancel a citizenship approval due to delay in making the pledge in Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933. The applicant had been informed of the approval of his application on 27 August 2007, but left Australia in April 2008 and did not return until June 2009, after his approval had been cancelled. In the period from April 2008 to August 2008, the Department sent the applicant five notices that his approval may be cancelled if he did 708 The italicised words were introduced into s 14 by Act No 70 of 1986, which commenced on 20 August 1986. 709 See 1948 Act, s 14. 710 See 1948 Act, s 14A. 711 That is, they made the pledge of commitment if they were required to do so, or they have otherwise become a citizen at the time set out in s 28. 712 If the proposed amendments to the 2007 Act in the Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) had been passed, this ground for cancelling an approval would have been expanded to include all requirements for approval under s 24 (other than the identity and national security requirements, in respect of which cancellation would have become mandatory): see Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (amended s 25(2)). 713 Australian Citizenship Regulations 2007 (Cth) reg 7. 714 Citizenship Policy (Cth) Ch 7 p 87.

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not make the pledge within 12 months of the approval. The applicant had left Australia for Nepal for the purposes of pursuing employment opportunities as a pilot, which had not materialised. The tribunal commented (at [26]): While the Act provides some flexibility for persons who are unable to make the pledge within time, the prescribed reasons are narrow in scope and do not extend to situations such as those that confronted Mr Budhathoki, where the inability to make a timely pledge is caused by the need to travel overseas for business or employment reasons.715

The tribunal noted that Mr Budhathoki conceded that he was aware of the consequences of not making the pledge when he left for Nepal and that any prejudice he might suffer was minimal. The cancellation was upheld. The third circumstance in which an approval of citizenship may be cancelled is if the approval was given to a child whose application was made at the same time as a responsible parent and the approval given to the responsible parent has been cancelled.716 Prior to 1 July 2002, there was no express power in the Act to revoke a certificate of citizenship once granted. Under the 1948 Act, a certificate of citizenship was granted once the application was approved, but citizenship did not commence for an applicant required to make the pledge of commitment until the pledge had been made.717 Section 14B of the 1948 Act, included by the Citizenship Legislation Amendment Act 2002 (Cth), provided for revocation before the grant of citizenship if the applicant no longer satisfied the eligibility criteria for a grant of citizenship, or had failed to make the pledge of commitment within 12 months of being notified of the Minister’s decision to grant a certificate of citizenship. An amendment to s 25 was proposed in the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth). If the Bill had been passed, an additional ground for the cancellation of citizenship would have been introduced in the form of a requirement for the Minister to cancel an individual’s approval for citizenship by conferral under s 21(2), (4) or (5)718 if the Minister is satisfied that if he or she were considering the person’s application at the time of the cancellation, the person’s citizenship application would not be approved on the basis of s 24(3), (4) or (4A) of the Act, relating to identity and national security.719 Unlike the cancellation of citizenship under the current s 25 (which is discretionary), 715 Budhathoki and Minister for Immigration and Citizenship [2009] AATA 933 at [26]. 716 2007 Act, s 25(4). This is discussed at [4.720]. 717 1948 Act, s 15(1). 718 Based on general eligibility, the applicant being aged over 60 or with hearing, speech or sight impediment, or the applicant being under 18, respectively. 719 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 25(1A)).

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cancellation of citizenship under the proposed new provision would have been mandatory. The Bill lapsed due to the 2016 federal election. The Federal Court has examined the links between the delay powers and the Minister’s power to cancel an approval. In Grass v Minister for Immigration and Border Protection [2015] FCAFC 44,720 Mrs Grass had been prevented by the Department from making the citizenship pledge despite not having been issued with a notice by the Minister through s 26(3). The Full Court found “it is clear the appellant and her husband were misled over a sustained period of time”721 yet the Minister still retained the power to cancel the approval and prevent Mrs Grass from becoming a citizen. Under the 2007 Act, if the Minister cancels an approval under s 25, the approval is taken never to have been given.722

Resumption of citizenship [4.960] Sections 28A to 32 of the Act set out the manner in which people can apply to resume their citizenship if they have lost it due to the operation of certain provisions of the 2007 Act or the 1948 Act. Cessation of citizenship under the 2007 Act and its predecessor is discussed at [4.1160]. Application and resumption of citizenship [4.970] An application to resume Australian citizenship will only be approved if the applicant is eligible to be an Australian citizen again under s 29 of the 2007 Act.723 The Minister may refuse to approve an individual’s application to resume citizenship, even if they are eligible under s 29.724 The Minister must be satisfied of the applicant’s identity725 and that the applicant is not a national security risk.726 An individual becomes an Australian citizen again on the day their application under s 29 is approved727 and must be registered as having resumed their citizenship with the Department.728 The person obtains the 720 Grass v Minister for Immigration and Border Protection [2015] FCAFC 44. 721 Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 at [25]. 722 2007 Act, s 25(5). 723 2007 Act, s 30(1A). 724 2007 Act, s 30(2). 725 2007 Act, s 30(3). 726 2007 Act, s 30(4) – (7). The Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed an amendment to s 30 that, if it had been passed, would have required the Minister to refuse an application for resumption of citizenship in circumstances where the applicant had certain criminal convictions: see Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 30(8) – (9)). 727 2007 Act, s 32(1). 728 2007 Act, s 31; Australian Citizenship Regulations 2007 (Cth) reg 9.

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same kind of citizenship they held before their citizenship ceased.729 For example, if the person was an Australian citizen by descent, the person again becomes a citizen by descent. If the person was an Australian citizen by grant under the 1948 Act, the person becomes a citizen by conferral under the 2007 Act.730 Eligibility for resuming citizenship [4.980] Section 29 of the 2007 Act sets out the eligibility requirements for a person applying to become an Australian citizen again. An individual’s eligibility to resume citizenship depends on the provision under which their citizenship originally ceased. Since the commencement of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) in December 2015, an individual who renounces their Australian citizenship under s 33A, or whose citizenship ceases under s 35 or 35A of the 2007 Act, is not eligible to resume their Australian citizenship.731 As pointed out in the note to s 36A of the 2007 Act, the effect of that section is that (subject to the operation of provisions deeming citizenship never to have ceased732 and conferring a discretion on the Minister to make a determination in favour of the person retaining their citizenship733) the person can never become an Australian citizen again. If an individual’s Australian citizenship ceased under any other provision of the 2007 Act or the 1948 Act that is not covered by s 29,734 that person will need to apply for citizenship again under subdivs A, AA or B of Part 2 of the 2007 Act.735 In addition, if the applicant is aged 18 or over736 at the time the person made the application, the Minister must be satisfied they are of good character at the time of the Minister’s decision on the application.737 Each of the cessation provisions covered by s 29 will be considered separately below. 729 2007 Act, s 32(2), (3). 730 2007 Act, s 32(3). 731 2007 Act, s 36A. 732 2007 Act, ss 33AA(24), 35(19) and 35A(9). 733 2007 Act, ss 33AA(14), 35(9) and 35A(8). 734 That is, under s 34, 34A or 35 of the 2007 Act or s 19 or 21 of the 1948 Act. 735 Respectively, citizenship by descent, citizenship for persons adopted in accordance with the Hague Convention or a bilateral arrangement, or citizenship by conferral. 736 If it had been passed, the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) would have applied the character requirement to people under the age of 18: see [4.1060]. 737 2007 Act, s 29(2)(b), (3)(b). Good character is discussed at [4.1060]. The good character requirement was inserted into s 23AA(1)(e) of the 1948 Act by the Australian Citizenship Legislation Amendment Act 2002 (Cth) Sch 2 Its 26 and 42 in response to a recommendation of the Australian Citizenship Council: see Australian Citizenship … A Common Bond, Government Response to the Report of the Australian Citizenship Council (May 2001) p 26.

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Cessation by renunciation under s 33 of 2007 Act [4.990] Under s 29(2)(a)(i), a person is eligible to apply to become a citizen again if the person renounced their citizenship under s 33 in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment.738 Individuals who renounce their citizenship for other reasons are not eligible to resume their citizenship.739 Renunciation of citizenship under the 2007 Act is discussed at [4.1170]. It has not yet been judicially determined, in the context of s 29, whether the reason for acquiring another nationality or avoiding significant hardship or detriment is required to have been the applicant’s sole or dominant purpose in renouncing their citizenship, or simply a purpose. In Paras and Minister for Immigration and Citizenship [2012] AATA 915, the AAT attempted to determine the applicant’s motivation for renouncing her Australian citizenship. The tribunal concluded that “it appears … her motivation was to be seen as Greek and not as an Australian due to her perceptions of her relatives’ disapproval of her Australian citizenship”.740 Despite the fact that the applicant gave evidence that she was seeking such approval in order to avoid persecution by her family and secure her inheritance, the applicant was not found to have renounced her Australian citizenship to avoid significant hardship or detriment. She did not meet the requirements of s 29.741 There is no definition of the term “significant hardship or detriment” in the Act, but the Citizenship Policy provides guidance on assessing its meaning in this context. The words are given their usual dictionary meanings. “Significant” is defined to mean “important; of consequence”, while “hardship” is “a condition that bears hard upon one; severe toil,

738 2007 Act, s 29(2)(a). 739 See Citizenship Policy (Cth) Ch 8 p 118. A series of cases in the AAT have made it clear that individuals who lost Australian citizenship at Papuan Independence on 16 September 1975, and who did not have Australian permanent residence, are not eligible to resume Australian citizenship under s 29 of the 2007 Act: see Brian and Minister for Immigration and Citizenship (2008) 105 ALD 213; Dick Avi and Minister for Immigration and Citizenship [2008] AATA 992; Iga and Minister for Immigration and Citizenship [2008] AATA 996; Rosemary Avi and Minister for Immigration and Citizenship [2008] AATA 991; Ginate and Minister for Immigration and Citizenship [2008] AATA 1002; Alu-Numa and Minister for Immigration and Citizenship [2008] AATA 993; Willie Solien and Department of Immigration and Citizenship [2008] AATA 1001; Steven Solien and Department of Immigration and Citizenship [2008] AATA 1000; Lohia and Minister for Immigration and Citizenship [2008] AATA 998; McCarthy and Minister for Immigration and Citizenship [2009] AATA 887; Martin and Minister for Immigration and Citizenship (2011) 123 ALD 628; Sariman and Minister for Immigration and Citizenship [2012] AATA 387; Yamuna and Minister For Immigration and Citizenship [2012] AATA 383. 740 Paras and Minister for Immigration and Citizenship [2012] AATA 915 at [23]. 741 The application was brought under s 29(3) of the 2007 Act but, as discussed below, the words of s 29(2)(a) and (3)(b) are the same.

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trial, oppression or need” and “detriment” is “loss, damage or injury”.742 Examples of hardship or detriment in the context of an application under s 29 include: • a requirement to pay higher taxes (for example, where higher taxes may prevent a person being able to afford fundamental assets such as a family home); • denial of the usual marital rights in relation to tax and inheritance laws on the death of a spouse or otherwise; • ineligibility to obtain a driver’s licence which may affect a person’s employment prospects; • denial of, or significant restrictions on access to social security benefits; • ineligibility to undertake formal courses of study and/or obtain certain education qualifications; • inability to access loans from financial institutions; • ineligibility to purchase or retain property; • loss of cultural or family heritage; • inability to allow the applicant’s children to participate fully in the social, political and cultural life of their other country of residence; • difficulties in obtaining visas, particularly when required to travel to several countries, frequently, in the course of employment; • inability for families to be treated as a unit when family members hold different passports; and • a requirement to apply regularly for residency and work permits.743 Cessation of child’s citizenship under s 36 of 2007 Act [4.1000] Under s 29(2)(a)(ii), a person is eligible to become an Australian citizen again if they ceased to be an Australian citizen under s 36 of the 2007 Act. Section 36 allows the Minister to revoke a child’s Australian citizenship if the child’s parent renounces their Australian citizenship,744 or has their citizenship revoked for offences or fraud,745 or a failure to meet the special residence requirements.746 This provision does not operate as an avenue to citizenship for children who were born after their parent ceased to be an Australian citizen under the 2007 Act; it only applies to children who lost their own Australian citizenship under s 36 as a result of their parent’s citizenship ceasing. Cessation of citizenship under s 36 is discussed at [4.1280]. Cessation for dual citizens under s 17 of 1948 Act [4.1010] Under s 29(3)(a)(i), a person is eligible to apply to resume their Australian citizenship if they ceased to be a citizen under s 17 of the 1948 Act. Since the inception of the 1948 Act, until 4 April 2002, s 17 mandated 742 Citizenship Policy (Cth) Ch 3 p 33. 743 See Citizenship Policy (Cth) Ch 3 p 34. 744 See 2007 Act, s 33. 745 See 2007 Act, s 34. 746 See 2007 Act, s 34A.

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the loss of Australian citizenship for a person who acquired a new citizenship. Cessation of citizenship under s 17 of the 1948 Act is discussed at [4.1310]. Cessation by renunciation under s 18 of 1948 Act [4.1020] Under s 29(3)(a)(ii), a person is eligible to apply to become an Australian citizen again if they ceased to be a citizen under s 18 of the 1948 Act, which dealt with renunciation of citizenship, in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment. Section 18 allowed individuals aged 18 or over to renounce their Australian citizenship in order to acquire the citizenship or nationality of another country. Renunciation under s 18 of the 1948 Act is discussed at [4.1170]. Cessation by residence outside Australia under s 20 of 1948 Act [4.1030] Under s 29(3)(iii), a person is eligible to apply to become an Australian citizen again if they ceased to be a citizen under s 20 of the 1948 Act. This subsection has limited operation. Section 20 of the 1948 Act only operated between 26 January 1949 and 8 October 1958. It provided that an Australian citizen who was naturalised, and who had “resided outside Australia and New Guinea for a continuous period of seven years shall cease to be an Australian citizen” unless certain conditions had been met.747 Section 20 of the 1948 Act is discussed at [4.1340]. Cessation of child’s citizenship under s 23 of 1948 Act [4.1040] Finally, under s 29(3)(iv), a person is eligible to apply to resume their Australian citizenship if they ceased to be a citizen under s 23 of the 1948 Act. Section 23 mandated the cessation of a child’s Australian citizenship where the child’s parents ceased to be citizens by renunciation under s 18 or service in enemy armed forced under s 19 of the 1948 Act. It only applied where the child had the citizenship or nationality of another country. This provision does not operate as an avenue to citizenship for children who were born after their parent ceased to be an Australian citizen under the 2007 Act; it only applies to children who lost their own Australian citizenship under s 23 as a result of their parent’s citizenship ceasing 747 Section 20 stated that unless: “(a) he has, at least once during the second and each subsequent year, or at such other times as the Minister, in special circumstances, allows, during that period, given the prescribed notice, at an Australian consulate, of his intention to retain his Australian citizenship; (b) he has so resided by reason of his service under an Australian government or his service with an international organization of which the Australian Government is a member of his service in the employment of a person, society, company or body of persons resident or established in Australia or New Guinea; (c) he has given the notice referred to in paragraph (a) of this section for portion of that period and has had such service for the remainder of that period; or (d) he is a person not of full age and resides with his responsible parent or his guardian who is an Australian citizen”.

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under s 18, 19 or 21 of the 1948 Act. It is important to note that children of parents who lost their citizenship under the former s 17 of the 1948 Act748 are treated differently. These children are eligible to apply for citizenship by conferral under s 21(6), regardless of whether they were born before or after their parent lost Australian citizenship under s 17 of the 1948 Act. Children’s cessation of citizenship under s 23 of the 1948 Act is discussed at [4.1280]. Historical provisions concerning resumption of Australian citizenship [4.1050] Section 29 of the 2007 Act is less complex and broader than its predecessors, ss 23AA to 23B of the 1948 Act, which contained certain time limits and residence requirements. The following material is provided for historical reference only; as discussed above, all applications for resumption of Australian citizenship will be made under the 2007 Act, regardless of whether the applicant’s citizenship ceased under that Act or the 1948 Act. Section 23AA of the 1948 Act was for people who lost their citizenship by taking up another citizenship, as set out in the former s 17.749 The applicant was required to submit a statement in writing to the Minister to the effect that either they did not know that their Australian citizenship would cease, or that they would have suffered significant hardship or detriment if they did not take up the other citizenship.750 The applicant was required to have been present in Australia for two years,751 intend to reside in Australia in the immediate future752 and have had a close and 748 Section 17, in force from 22 November 1984 to 4 April 2002, mandated the loss of Australian citizenship for a person who acquired citizenship of another country. 749 This applied to each form of s 17 as it appeared in the 1948 Act. 750 Section 23AA(1)(b). 751 Section 23AA(1)(b)(ii). The Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001, stated (at [9.2.6]) that this is “at any time in his or her life”. In Headford and Department of Immigration and Ethnic Affairs [1993] AATA 259 (cited in Cronin, Glass, Goddard and Doust, Australian Immigration Law (2001) at [3940]), the applicant had not satisfied this mandatory requirement of two years and, as such, was unsuccessful in her application under s 23AA. 752 Section 23AA(1)(b)(iv)(B). In Smout and Minister for Immigration and Multicultural Affairs [2000] AATA 370, the applicant had applied for British citizenship and ceased to be an Australian citizen under s 17. Upon application to resume citizenship, the applicant was not residing in Australia and had no intention of returning to Australia to live within three years. Therefore, he could not satisfy s 23AA(1)(b)(iv)(B), which the tribunal held was sufficient to dispose of the matter irrespective of whether the applicant had maintained a close and continuing relationship with Australia. In Finn and Minister for Immigration and Multicultural Affairs [2000] AATA 823, the tribunal held that an Australian citizen granted Irish citizenship for the purposes of pursuing surgical training automatically lost his Australian citizenship, even though he was unaware of this. On applying for resumption of Australian citizenship, the tribunal noted that it had received a number of conflicting statements from the applicant about

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continuing association with Australia.753 Children of people who resumed their citizenship under s 23AA could be included in a declaration of resumption of citizenship.754 Section 23AB allowed for the resumption of citizenship by individuals who had renounced their Australian citizenship, but the application for resumption could only be made before the applicant attained the age of 25. This section was inserted into the 1948 Act in 2002, in response to the Australian Citizenship Council’s view that individuals who renounced their Australian citizenship before the age of 25 may have been taking this action before “they [were] able to make an adult and informed decision”.755 The Council recommended that such people be allowed to make an application for resumption of Australian citizenship up until the age of 25,756 and the government agreed and amended the legislation accordingly.757 Section 23A provided for resumption from loss of citizenship under the repealed s 20 of the 1948 Act and the operation of s 23A(1) was restricted by time limitations. A person who ceased to be a citizen according to s 20 had to apply for resumption within one year of 8 October 1958, or within one year of turning 18 years of age, or such further period as the Minister allowed in “special circumstances”. Section 23B allowed children who had lost citizenship through s 23 (which deprived children of citizenship whose parents had renounced their Australian citizenship or lost it by service in enemy armed forces and included children who lost their citizenship by virtue of s 17, 18, 19 or

his intentions to return to Australia. Until the applicant took steps to obtain or secure work in Australia, the tribunal was not convinced of the applicant’s intention to reside in Australia within the three-year period, and therefore s 23AA(1)(b)(iv)(B) of the Act was not satisfied. 753 Section 23AA(1)(b)(v). The Australian Citizenship Instructions, ACI No 5, File No PCF2000/195, Date of Issue 1 November 2001, included the following examples (at [9.2.6]): having maintained contact with family/relatives living in Australia; or having maintained significant economic, financial or business interests within Australia; or having maintained friendships with residents in Australia and having visited them from time to time. 754 Section 23AA(2). 755 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 72. 756 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 72. 757 Australian Citizenship … A Common Bond, Government Response to the Report of the Australian Citizenship Council (May 2001) p 26. See also Sch 2, Items 27 and 35 of the Australian Citizenship Legislation Amendment Act 2002, which introduced a new s 23AB. Items 26 and 43 of the Act also added a requirement for people seeking to resume citizenship under s 23B to satisfy the Minister that they were of good character.

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21 of the 1948 Act) to apply to resume their citizenship within a year of turning 18, or within such further period as the Minister allowed.758

Good character [4.1060] The Act requires that people aged 18 years and over who are applying to become Australian citizens are of good character. Good character is currently also required of applicants for citizenship by descent,759 adoption under the Hague Convention or a bilateral agreement,760 conferral761 and resumption.762 If the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) had been passed, the good character requirement would have been extended to all applicants for citizenship by descent, overseas adoption, conferral and resumption. The proposed extension of the character requirements to children under the age of 18 was designed to recognise “the fact that people under the age of 18 sometimes have significant character concerns and/or have committed particularly serious crimes”.763 However, the amendment was not enacted as the Bill lapsed due to the calling of the 2016 federal election. Meaning of “good character” [4.1070] The term “good character” is not defined in the 2007 Act.764 Decision-makers must therefore be guided by the ordinary use of the words.765 The Federal Court has held that: the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion.766 758 Re Catanzaro and Department of Immigration, Local Government and Ethnic Affairs (1994) 34 ALD 791; Beersten and Minister for Immigration and Multicultural Affairs [1997] AATA 78; and Dose and Minister for Immigration and Multicultural Affairs [2001] AATA 311 concerned the factors that justified this extension of time. 759 See s 16(2), (3). 760 See s 19C(2). 761 See s 21(2), (3), (4), (6), (7). 762 See s 29(2), (3). 763 Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Explanatory Memorandum, pp 17, 22, 27, 47. 764 Note that the good character requirements for the purposes of the 2007 Act differ from those in the Migration Act 1958 (Cth). The Migration Act 1958 character test is set out in s 501 of that Act and is strictly defined. The matters taken into account in a s 501 assessment are not the same as those considered under the 2007 Act and the good character requirement for citizenship is broader than the Migration Act 1958 character test. For a discussion, see Citizenship Policy (Cth) Ch 11 p 148. 765 Citizenship Policy (Cth) Ch 11 p 145. 766 Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 per Lee J (emphasis added).

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The Citizenship Policy provides extensive guidance on the meaning of the term and how it should be assessed in the context of the 2007 Act.767 The policy states that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time, distinguishing right from wrong, and behaving in an ethical manner, conforming to the rules and values of Australian society. In Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372; [2011] AATA 304, Forgie DP found the Preamble to the 2007 Act, which sets out the meaning of Australian citizenship,768 could provide assistance in identifying what Australian society considers to be right and proper behaviour for the purposes of assessing good character. Forgie DP stated (at [120]): In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.

The Citizenship Policy provides that an applicant who is of good character is likely to uphold the pledge, should they be approved for citizenship.769 “The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.”770 Assessing “good character” [4.1080] The Citizenship Policy provides extensive guidance for decision-makers assessing an applicant’s character under the Act. It states that decision-makers need to look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis, that an applicant is, or is not, of good character.771 In Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, the AAT said that: a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.772

The Citizenship Policy states that a decision-maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period 767 See Citizenship Policy (Cth) Ch 11. 768 The Preamble is discussed at [4.90]. 769 Citizenship Policy (Cth) Ch 11 p 146. 770 Citizenship Policy (Cth) Ch 11 p 145. 771 Citizenship Policy (Cth) Ch 11 p 144. 772 Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].

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of time.773 The amount of time will depend on the merits of each case, but in most cases will go back prior to any visa application.774 If a person has committed a very significant offence (such as taking the life of another person, sexual assault, crimes against children, war crimes, crimes against humanity or genocide), the lasting/enduring period would be much longer, potentially over a period of many years.775 If the decision-maker intends to take into account adverse information, procedural fairness requires that these matters be put to the applicant and the applicant be invited to respond to, or comment on, the information.776 Decisions regarding character AAT decisions under the 2007 Act [4.1090] The question of an applicant’s good character is one that is often the subject of appeals to the AAT. An examination of some recent decisions sheds light on the tribunal’s understanding of “good character” in respect to applicants for the purposes of the 2007 Act.777 For example, Okeke and Minister for Immigration and Citizenship [2012] AATA 882 was an appeal from a decision by the Minister to exercise his discretion under s 25(1) of the Act and cancel Mr Okeke’s approval for Australian citizenship on the grounds that he was not of good character. Between his citizenship application being approved and Mr Okeke making the pledge of commitment, he had been convicted of five drug importation offences. Mr Okeke was sentenced to over 10 years’ imprisonment, with a non-parole period of six years. The tribunal considered that the offences committed by Mr Okeke were extremely serious. It noted that they were committed over a lengthy period, some after the application for citizenship was made, involving drugs of addiction and a scheme of some sophistication with a view to profiting from the harm caused to drug users. Accordingly, he was found not to be of good character. In C1 and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 519, the applicant’s application for citizenship by conferral was rejected on character grounds. The AAT upheld the decision. The applicant had been charged with assaulting his 12-year-old son, punching him repeatedly to “discipline” him. The tribunal considered that the applicant lacked remorse, had no insight into why other people may regard his discipline as brutal or a crime, and he was “unable or unwilling to alter his views … He acted and continues to act on his 773 Citizenship Policy (Cth) Ch 11 p 150. 774 Citizenship Policy (Cth) Ch 11 p 150. 775 Citizenship Policy (Cth) Ch 11 p 150. 776 Citizenship Policy (Cth) Ch 11 p 155. On procedural fairness, see Kioa v West (1985) 159 CLR 550. 777 For full text decisions of the AAT since 1976 as selected by the Tribunal, see: http://www.austlii.edu.au/au/cases/cth/aat.

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strongly held beliefs, many of which find little acceptance in this community.”778 The offence was found to be part of a pattern of behaviour suggesting the applicant was not of good character. Mills and Minister for Immigration and Citizenship [2012] AATA 753 also concerned the rejection of an application for citizenship by conferral on the grounds that the applicant was not of good character. The applicant had an extensive history of theft and driving offences, and had been convicted with manslaughter in 1999. The tribunal found that it could not conclude that the applicant was “unreservedly remorseful, and has accepted full responsibility, for his serious criminal offending, including the very serious offence of manslaughter of which he was convicted in March 1999”.779 The tribunal found that those considerations provided a more reliable indication of the applicant’s character than his good conduct during the 12 years since his release from prison and the opinions of his two character referees, and upheld the assessment that he was not of good character. The tribunal also commented that “the applicant’s assertions of bias on the part of former members of the judiciary, contained in one of his statements … reflect poorly on his character”.780 In contrast, in Al Hashimi and Minister for Immigration and Citizenship (2012) 130 ALD 640, the tribunal set aside a decision refusing a citizenship application on character grounds. The applicant was an Iraqi national who arrived in Australia by boat seeking refugee protection. He was convicted of an offence for coming to Australia as a non-citizen and served a term of imprisonment for that offence before returning to immigration detention. The applicant was convicted of common assault while in immigration detention. He was then granted a temporary protection visa and subsequently granted a permanent resolution of status visa. In the seven years since the assault offence, the applicant had been engaged in stable, gainful employment, maintained stable family life and developed extensive and supportive social networks in his local community. The tribunal found that the applicant had firmly established a pattern of good behaviour. Finally, in Chen and Minister for Immigration and Citizenship (2012) 128 ALD 682, the applicant’s citizenship approval had been cancelled by the Minister under s 25 of the Act. The applicant had been granted a spouse visa in 2007, but in family law proceedings in 2008 it came to light that the relationship had broken up after the visa application was made, but before it was granted. The applicant had failed to notify the Department of the change in his relationship status. However, the tribunal considered that he was still of good character: 778 C1 and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 519 at [42]. 779 Mills and Minister for Immigration and Citizenship [2012] AATA 753 at [38]. 780 Mills and Minister for Immigration and Citizenship [2012] AATA 753 at [38].

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There is no dispute that in the past Mr Chen has not been faultless. However, in weighing up the seriousness of his misconduct, the context in which he made the misstatement, the one-off nature of the misconduct and the length of time that has passed without evidence of further breach and evidence of his current good character, I am not satisfied that Mr Chen is “not of good character”.781

The tribunal considered that the applicant made a serious error of judgment at a time when he was young and under pressure, but that he was of good character. AAT decisions under 1948 Act [4.1100] The tribunal’s examination of the question of good character under the 1948 Act, particularly in the context of the requirement in s 13(1)(f) that an applicant must be of good character to be eligible for a grant of Australian citizenship under the 1948 Act, demonstrates that the consideration of good character has been relatively consistent. In Moore v Minister for Immigration and Multicultural Affairs (unreported, AAT, Decision No 96/342, 28 October 1997), the tribunal determined that an applicant convicted of prostitution, importing heroin and multiple offences of stealing failed to meet the good character requirement. According to the tribunal, the applicant’s offences fell in the serious category regardless of the less than two-year time lapse since his 13-year imprisonment expired. The applicant displayed “an utter contempt for the welfare of the people of Australia whom he now wishes to join as a Citizen with equal rights under Australian law”. Similarly, in Steele and Minister for Immigration and Multicultural Affairs [1997] AATA 405, the applicant’s criminal conduct included 90 convictions between 1994 and 1997 (the offences included road traffic, summary, serious property and personal offences). Despite the applicant’s traumatic childhood, which had resulted in a foster placement, and personality and emotional problems, the tribunal found that the applicant failed to meet the s 13(1)(f) provisions. In Trajkoski and Department of Immigration and Multicultural Affairs [1998] AATA 522, the tribunal found that an applicant convicted of drug-related offences who had been a model prisoner and had positively contributed to the community and his family since his release from prison ten years earlier, was a person of good character. It was further found that there is a fine balance between whether or not a person can be considered to have rehabilitated to the extent that the person’s “enduring moral qualities”782 could now be considered to be those of a person of good character. In Boskovic and Minister for Immigration and Multicultural Affairs [2000] AATA 251, an applicant who had been convicted of serious assault and 781 Chen and Minister for Immigration and Citizenship (2012) 128 ALD 682 at 689–690. 782 See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 per Lee J.

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murder 15 years previously failed to satisfy the good character requirement. The tribunal stated that the applicant was on the road to rehabilitation but was not yet there, noting that, in circumstances where very serious crimes have been committed, there must always be an element of risk in reaching a decision of good character. However, the tribunal could not provide clear guidelines as to when it would be appropriate for the applicant to reapply in terms of a lapse of time guaranteeing citizenship.783 In Davies and Minister for Immigration and Multicultural Affairs [2000] AATA 509, McMahon DP confirmed that “good character” refers to the “enduring moral qualities of a person”.784 McMahon DP determined that the applicant had failed to meet the good character requirements by virtue of his disingenuousness with authorities, thereby revealing a lack of respect for Australian laws. The applicant had entered Australia presenting a stolen passport for identification, had made false statements to police and had falsely denied prior convictions in his application for citizenship and in relation to carrying a United Nations Convention travel document.785 In Moefaauo and Minister for Immigration and Multicultural Affairs [2001] AATA 289, the applicant accidentally delivered a blow to his child, who fully recovered. He received a probation order and was required to attend anger management programs. The tribunal determined that it was not in the public good to refuse citizenship to the applicant. In Lata and Minister for Immigration and Multicultural Affairs [2001] AATA 128, the applicant was intending to sponsor her future spouse who was not an Australian citizen. The tribunal pointed out that the Act does not set out motives for applying for citizenship, but certain requirements that need to be met. It was of the view that applying for Australian citizenship because it would also assist a person to achieve another object “is not a reflection of character one way or the other”: at [104]. 783 See further, PE v Department of Immigration and Ethnic Affairs (unreported, AAT, Decision No Q94/30, 8 March 1995) where Breen DP noted that if the applicant, convicted of multiple accounts of indecently dealing with children, maintained an unblemished record for the following three years, he may be regarded as having fulfilled the “good character” requirements. In Bilouni and Minister for Immigration and Multicultural Affairs [2001] AATA 233, the applicant lied on her application for citizenship (but no charges were laid under s 50 of the Act). She had committed shoplifting offences, yet the tribunal determined that she satisfied the good character test. 784 See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 per Lee J. 785 Similarly, in Suleyman and Department of Immigration and Multicultural Affairs [2000] AATA 1100, the tribunal found that an applicant who had arrived in Australia on a passport procured by bribery and who had then used false information to obtain a protection visa, had consciously and deliberately intended to deceive the Australian Government and “showed a blatant disregard for the values and expectations of the Australian community”.

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Grounds for rejection of application [4.1110] The Act sets out certain requirements that must be fulfilled before the Minister may approve an application for Australian citizenship by descent,786 adoption under the Hague Convention or a bilateral agreement,787 conferral788 and resumption.789 These requirements relate to the applicant’s identity, national security, and, if relevant, how recently the applicant ceased to be an Australian citizen. Even if an applicant satisfies the eligibility requirements relevant to the category of citizenship for which they are applying, their application must be rejected if these requirements are not met. Additional requirements of presence in Australia and not being implicated in offences against Australian law currently apply specifically to approval of applications for citizenship by conferral under s 21. The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) contained provisions to expand these additional requirements to applicants for citizenship by descent, intercountry adoption and resumption. If the Bill had been passed, it would also have imposed new restrictions on the granting of citizenship to applicants who were subject to an order for home detention or residential drug or mental illness rehabilitation programs in connection with an offence against Australian law.790 Identity [4.1120] Sections 17(3), 19D(4), 24(3), 30(3) of the Act require that, before an application for Australian citizenship is approved, the Minister must be satisfied of the person’s identity. If a person’s identity cannot be verified, the application cannot be approved.791 In addition, the Minister must be satisfied of the person’s identity in order to approve an application to renounce Australian citizenship,792 to provide a notice evidencing an individual’s Australian citizenship,793 or for the person to be eligible to sit the citizenship test.794 786 See s 16. 787 See s 19C. 788 See s 21. 789 See s 29. 790 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new ss 17(4C), 19D(7A), 30(8) and 24(6)(f) – (j)). 791 The question of legal identity is vexed. See further, Wallace, “Legal Identity in Australia” (PhD thesis, University of Sydney, February 2016): https:// ses.library.usyd.edu.au/handle/2123/15528. 792 See s 33(4). 793 See s 37(4). 794 See Commonwealth of Australia, Approval of a Citizenship Test (Determination under s 23A) (Chris Bowen, IMMI 11/088, 1 March 2012) p 5.

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Division 5 of Pt 2 of the 2007 Act deals with the collection and use of personal identifiers. Under s 40 of the 2007 Act, the Minister or authorised delegates795 may request an applicant under Pt 2 of the Act,796 or a candidate for the citizenship test, to provide specified personal identifiers. The term “personal identifiers” is defined in s 10 of the Act to mean actual or digital: (a) fingerprints or handprints of a person (including those taken using paper and ink or digital live scanning technologies); (b) measurements of a person’s height and weight; (c) photograph or other image of a person’s face and shoulders; (d) iris scans; (e) signatures; and (f) any other identifier prescribed by the regulations (except an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914).797

The Australian Citizenship Regulations 2007 (Cth) prescribe798 that a request under s 40 must inform the applicant of why the personal identifier must be provided, how it may be collected, how it may be used, the circumstances in which it may be disclosed to a third party, and that it may be produced in evidence in a court or tribunal in relation to the applicant.799 The applicant must also be informed that the Privacy Act 1988 (Cth) applies to a personal identifier, and that the applicant has a right to make a complaint to the Australian Information Commissioner about the handling of personal information.800 In addition, the applicant must be made aware of their rights under the Freedom of Information Act 1982 (Cth) to seek access to certain information, and to seek amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.801 The 2007 Act establishes offences for the unauthorised accessing, disclosure, modification or impairment, or destruction of identifying information.802 In addition, the Citizenship Policy provides comprehensive 795 Certain Department officers and other governmental or consular officials have been authorised to request personal identifiers be provided: see Commonwealth of Australia, Instrument of Authorisation (Determination under subsections 40(3), 40(4), 42(3) and 42(4)) (Chris Bowen, IMMI 11/089, 1 March 2012). 796 Part 2 of the Act deals with the acquisition of Australian citizenship. 797 At the time of writing, no other identifiers were prescribed in the Australian Citizenship Regulations 2007 (Cth). 798 A request must inform the person of the matters prescribed by the regulations: 2007 Act, s 40(2); Citizenship Regulations 2007 (Cth) reg 11. 799 Australian Citizenship Regulations 2007 (Cth) reg 11(a) – (e). 800 Australian Citizenship Regulations 2007 (Cth) reg 11(f). 801 Australian Citizenship Regulations 2007 (Cth) reg 11(g). 802 See 2007 Act, ss 42 – 45.

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guidance on the requirement for, and collection, use, storage and destruction of, personal identifiers for the purposes of the Act.803 National security [4.1130] The national security provisions apply to applicants for Australian citizenship by descent,804 by adoption in accordance with the Hague Convention or a bilateral agreement,805 by conferral,806 and by resumption.807 The Minister must not approve a person becoming an Australian citizen in any of those categories at a time when an adverse security assessment,808 or a qualified assessment,809 is in force under the Australian Security Intelligence Organisation Act 1979 (Cth) stating that the applicant is a risk to security.810 However, this restriction does not apply to a person who, at the time of their application, is not a national or citizen of any country and was either born in Australia (except in the case of an applicant for citizenship by descent under s 16), or to an Australian citizen parent.811 Different, and less onerous, restrictions apply to these applicants. First, if the applicant

803 See Citizenship Policy (Cth) Ch 14. 804 2007 Act, s 17(4) – (4B). 805 2007 Act, s 19D(5) – (7A). 806 2007 Act, s 24(4) – (4C). 807 2007 Act, s 30(4) – (7). 808 “Adverse security assessment” is defined in s 35 of the Australian Security Intelligence Organisation Act 1979 (Cth) to mean a security assessment in respect of a person that contains: (a) any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and (b) a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person. 809 “Qualified security assessment” is defined in s 35 of the Australian Security Intelligence Organisation Act 1979 (Cth) to mean a security assessment in respect of a person that: (a) contains any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and (b) does not contain a recommendation of the kind referred to in paragraph (b) of the definition of adverse security assessment; whether or not the matters contained in the assessment would, by themselves, justify prescribed administrative action being taken or not being taken in respect of the person to the prejudice of the interests of the person. 810 The risk may be a direct or indirect risk to security, within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth): see 2007 Act, ss 17(4), 19D(5), 24(4), 30(4). 811 Under ss 17(4B), 19D(7), 24(4B) and 30(6) of the 2007 Act that means that the person is not a national or a citizen of any country.

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was not a national or citizen of any country and was born in Australia,812 the Minister must not approve the application if: • the applicant has been convicted of a national security offence;813 or • the applicant has been convicted of an offence (in Australia or overseas) and imprisoned for five years or more for that offence.814 However, the Minister has a discretion to decide that, taking into account the circumstances of the applicant’s conviction, it would be unreasonable to apply this provision.815 Second, if the applicant was not a national or citizen of any country and was born to an Australian citizen parent, the Minister must not approve the application if the applicant has been convicted of a national security offence.816 The introduction of less onerous national security provisions for certain applicants reflects a recommendation of the Senate Legal and Constitutional Legislation Committee that exclusion from citizenship on national security grounds be limited in the case of a stateless person to applicants who have been convicted of a security related offence (as opposed to merely being subject to an adverse or a qualified security assessment) in accordance with the Convention on the Reduction of Statelessness.817 812 Note that the provisions relating to applicants who are not nationals or citizens of any country but were born in Australia do not apply to applicants for citizenship by descent under s 16 of the 2007 Act. Only the provisions relating to such applicants who were born to Australian citizen parents apply. Also note that these provisions (specifically, s 24(4A)) apply to a person who is eligible to become an Australian citizen under s 21(8): see 2007 Act, s 24(4D). 813 See 2007 Act, ss 19D(6)(a)(i), 24(4A)(a)(i) and 30(5)(a)(i). “National security offence” is defined in s 3 of the 2007 Act to mean: (a) an offence against Pt II or VII of the Crimes Act 1914 (Cth); or (b) an offence against Div 72 of the Commonwealth Criminal Code; or (c) an offence against Pt 5.1, 5.2 or 5.3 of the Commonwealth Criminal Code; or (d) an offence against the Australian Security Intelligence Organisation Act 1979 (Cth); or (e) an offence against the Intelligence Services Act 2001 (Cth); or (f) an offence covered by a determination in force under s 6A of the 2007 Act. For the purposes of para (f), at the time of writing, no determinations had been made under s 6A of the 2007 Act. Note that determinations made under s 6A apply not only to applications made after the date of the determination, but also to applications that were made before the determination, but which will be decided after the date of the determination: see 2007 Act, s 6A. 814 See 2007 Act, ss 19D(6)(a)(ii), 24(4A)(a)(ii) and 30(5(a)(ii). 815 See 2007 (Cth) ss 19D(7A), 24(4C) and 30(7). 816 See 2007 (Cth) ss 17(4A), 19D(6)(b), 24(4A)(b) and 30((5)(b). The definition of “national security offence” is set out above n 821. 817 See Australia, Parliament, Senate Legal and Constitutional Legislation Committee, Report on Inquiry into the Australian Citizenship Bill 2005 (2006). See also Convention on the Reduction of Statelessness, Arts 1, 4. Note also how Australia’s commitment to the reduction of statelessness also motivated the cessation of citizenship amendments introduced in December 2015. See further discussion at [4.1160].

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Cessation of citizenship [4.1140] In respect of applications for citizenship by descent,818 by adoption in accordance with the Hague Convention or a bilateral agreement,819 or by conferral,820 the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.821 These provisions make it clear that people who cease to be Australian citizens are not eligible to obtain citizenship during the 12 months from the day of cessation. This restriction is the equivalent of s 13(11)(g) of the 1948 Act, which contained a 12-month period of limitation of acquisition of citizenship by grant, but the 2007 Act extended its scope to include applications for citizenship by descent and intercountry adoption. “It is important that the privilege of Australian citizenship is not able to be resumed without due consideration by those who have renounced their citizenship or have ceased to be citizens for some reason.”822 Additional grounds for rejection of applications made under s 21 [4.1150] As discussed at [4.910], specific to applications for citizenship under s 21, the Minister must only approve an application under s 21(2), (3) or (4) at a time when the applicant is present in Australia, unless the applicant satisfies the special residence requirements in either s 22A or 22B, or the Minister applies s 22(9)823 or (11)824 to the applicant.825 Further, the Minister must not approve an application under s 21 at a time when the applicant is implicated in an offence against Australian law – that is, when proceedings for an offence are pending,826 the applicant is in prison or recently released,827 the applicant is on parole or a good behaviour bond,828 or the applicant is confined to a psychiatric institution by order of a court in connection with proceedings for an offence.829 818 See 2007 Act, s 17(4) – (4B). 819 See 2007 Act, s 19D(5) – (7A). 820 See 2007 Act, s 24(4) – (4C). 821 See 2007 Act, ss 17(5), 19D(8), 24(7). 822 Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 31. 823 That is, the ministerial discretion relating to applicants with a spouse or de facto partner who is an Australian citizen. 824 That is, the ministerial discretion relating to applicants who are in an interdependent relationship with an Australian citizen. 825 2007 Act, s 24(5). 826 2007 Act, s 24(6)(a). 827 The applicant must have been released for more than two years after the end of a serious prison sentence, and for 10 years after the end of a prison sentence in relation to which the applicant is a serious repeat offender: see 2007 Act, s 24(6)(b) – (d). 828 See 2007 Act, s 24(6)(e) – (g). 829 See 2007 Act, s 24(6)(h).

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CESSATION OF CITIZENSHIP [4.1160] Division 3 of the 2007 Act is titled “Cessation of Citizenship”. There are five ways in which an individual can cease to be an Australian citizen under the 2007 Act. A person may renounce their citizenship,830 have their citizenship revoked by the Minister in circumstances involving offences,831 fraud832 or a failure to comply with special residence requirements,833 or cease to be a citizen due to engaging in various kinds of conduct inconsistent with allegiance to Australia. These include renunciation by conduct,834 service outside Australia in armed forces of an enemy country or a declared terrorist organisation,835 or conviction for terrorism offences and certain other offences.836 In addition, in some circumstances, the child of a parent who ceases to be an Australian citizen may have their citizenship revoked by the Minister.837 With the exception of revocation of citizenship due to fraud in s 36 and the recently inserted grounds for loss of citizenship introduced by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) through s 33AA, the amended ss 35 and 35A, the cessation provisions largely mirror those that were in force under the 1948 Act. Division 4 of Pt III of the 1948 Act provided for renunciation of citizenship,838 loss of citizenship due to service in the armed forces of an enemy of Australia,839 deprivation of citizenship,840 and the effect on children of loss of citizenship.841 However, the provisions of the 1948 Act had been the subject of significant amendments over the time the Act was in force. For example, prior to 2002, Australian citizens could lose their citizenship if they or their parents acquired the citizenship of another country,842 and at one point the 1948 Act provided for loss of citizenship by residence outside the country.843 With the commencement of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) in December 2015, the 2007 Act was 830 See 2007 Act, s 33. 831 See 2007 Act, s 34. 832 See 2007 Act, s 34. 833 See 2007 Act, s 34A. 834 See 2007 Act, s 33AA. 835 See 2007 Act, s 35. 836 See 2007 Act, s 35A. 837 See 2007 Act, s 36. 838 See 1948 Act, s 18. 839 See 1948 Act, s 19. 840 See 1948 Act, s 21. 841 See 1948 Act, s 23. 842 See the former s 17 of the 1948 Act, repealed by Australian Citizenship Legislation Amendment Act 2002 (Cth) Sch 1. 843 See the former s 20 of the 1948 Act, repealed by the Nationality and Citizenship Act 1958 (Cth) s 6.

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amended to include additional grounds for renunciation and revocation of citizenship, grouped as identifying a “loss of allegiance” to Australia, which both expanded the provision providing for cessation for service in enemy armed forces and included new provisions.844 Just as the sections on obtaining citizenship reflect upon citizenship as a normative notion,845 so, too, the sections on loss of citizenship and its resumption also tell us about the meaning of membership of the Australian community. In particular, these provisions have been identified as reflecting fundamentally on notions of allegience and loyalty and their centrality to the Act’s framing of legal citizenship in Australia. How well they sit with broader notions of membership of the Australian community is questionable846 but, as Karen Slawner argues, “legal definitions of citizenship always incorporate what is considered to be desirable activity”.847 The Federal Court commented on the grounds for loss of citizenship under the 1948 Act in Dvorani v Minister for Immigration and Multicultural Affairs (2000) 31 AAR 536. The court highlighted (at 541) that there was a common element of choice, voluntariness or intentional action in obtaining another citizenship, in renouncing one’s citizenship, or in serving in another country’s army. The court noted (at 542) that “the legislature was concerned with the nature of the relationship between the Australian community and the individual, which defines the ways in which citizenship may be lost or taken away”. A more recent example is the statement of purpose of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth): This Act is enacted because the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia.

The recent changes to this Part of the Act highlight the relevance of notions of loyalty and allegiance to contemporary concepts of citizenship.

844 See Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) Sch 1 (new ss 33AA, 35A, 35AA and amended s 35). 845 See discussion in Chapter 1 at [1.20] about the different meanings of “citizenship”. 846 See, in particular, Rubenstein, “Abbott’s dual citizenship plan is bad policy even in fight against terror”, The Australian (29 May 2015): http://www.theaustralian.com.au/ opinion/abbotts-dual-citizenship-plan-is-bad-policy-even-in-fight-against-terror/newsstory/abdd4e9ee414cc3f8d19cc9bf70dc68a; and Rubenstein, “Allegiance bill still flawed”, The Sydney Morning Herald (12 November 2015): http://www.smh.com.au/ comment/allegiance-bill-still-flawed-20151112-gkwyvp.html. 847 Slawner, “Uncivil Society: Liberalism, Hermeneutics, and “Good Citizenship”” in Slawner and Denham (eds), Citizenship after Liberalism (1998) p 83.

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Renunciation of citizenship Current provisions [4.1170] In Kenny v Minister for Immigration and Ethnic Affairs (1993) 42 FCR 330 at 339, Gummow J stated that “[t]he ’stern rule’ of the common law was that a natural born subject could not divest himself of that status by his own unilateral act.”848 However, the 2007 Act, like its 1948 predecessor,849 does enable citizens to renounce their Australian citizenship. Section 33 states that a person may make an application850 to renounce their Australian citizenship. Subject to certain exceptions, the Minister must approve the person’s application to renounce their Australian citizenship if the Minister is satisfied that: (a) the person is aged 18 or over, and is a national or citizen of a foreign country, at the time the person made the application;851 or (b) the person was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country because the person is an Australian citizen.852

This provision, therefore, deals with the consequence of dual citizenship. A person who has reached legal adulthood can renounce his or her Australian citizenship if that person is a citizen of another country.853 Children who have a connection to another country can also seek to divest themselves of their Australian citizenship if they are disadvantaged in obtaining the other citizenship on account of their Australian citizenship. Given that dual citizenship can disadvantage citizens,854 this is an important section in line with comity between nations and international law.855 However, it is important to distinguish s 33 from a 848 Citing Kent, Commentaries on American Law (1827) Vol II pp 35–43. 849 Section 18 of the 1948 Act allowed Australian citizens to renounce their citizenship. 850 This process differs from that under the 1948 Act, under which citizens could submit a declaration renouncing their Australian citizenship, which the Minister could refuse to register only in certain prescribed circumstances. In line with the 2007 Act, these circumstances were: if the declaration was made by a citizen of a foreign country while Australia was engaged in a war; if the Minister considered that it would not be in Australia’s interests to register the declaration; or if registering the declaration would render the applicant stateless. 851 2007 Act, s 33(3)(a). 852 2007 Act, s 33(3)(b). 853 The purpose of the requirement that the applicant be a citizen of another country is to ensure that the person will not become stateless on surrendering their Australian citizenship: see Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 60. 854 As the Australian Constitution does through s 44(i), which disqualifies dual citizens from membership of the Australian Parliament: see below at [4.1290]. 855 For instance, see the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality (ratified Strasbourg, 6 May 1963; came into force 28 March 1968): 222 United Nations Treaty Series 1968. See also discussion about the links between the Act and international law in Tully, “Citizen Deleted” 33 Australian Yearbook of International Law 131.

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former provision that mandated the loss of Australian citizenship if a person acquired another citizenship. This provision, s 17 of the 1948 Act, is discussed at [4.1290] below. Once the Minister approves a person’s application to renounce their citizenship, that person ceases to be an Australian citizen.856 The Minister has a discretion to refuse an application if, at the time the person made the application, Australia was engaged in a war and the person was a national or citizen of a foreign country. Section 33 mirrors s 18(5) of the 1948 Act and, like its predecessor, does not say that the person must be a citizen of the country with which Australia is at war. In addition to the Minister’s discretion to refuse an application, s 33 provides three circumstances in which the Minister must refuse an application to renounce Australian citizenship. A person’s renunciation application must not be approved if the Minister: • is not satisfied of the person’s identity;857 • considers that it would not be in the best interests of Australia to do so;858 and • is not satisfied that the person either is a national or citizen of a foreign country immediately before the Minister’s decision, or will become so immediately after approval of the application to renounce Australian citizenship. This final requirement is consistent with the principle against statelessness of individuals and seeks to prevent a person from becoming stateless.859 It also reflects the eligibility criteria for applying to renounce Australian citizenship in s 33(3). This principle was central to the AAT decision in Bachmann and Minister for Immigration and Multicultural Affairs [1999] AATA 465, where the applicant had gained Australian citizenship through s 13 [1989 Act] and had not realised that by doing so he would lose his German citizenship. He was seeking to renounce his Australian citizenship in order to regain his German citizenship. While the applicant had submitted that he understood he would be given German citizenship at an early stage, the tribunal held that if the application for renunciation were granted, given the state of German law, there would be a reasonable amount of time in which the applicant would be stateless. Thus, it was stated at [12] that: Even given the most beneficial interpretation of the word “immediately” in the relevant Section of the Act, there is no guarantee he would obtain citizenship of Germany within a reasonable amount of time.

It is departmental policy that evidence that the applicant is a citizen of another country should include a statement from a relevant government 856 See 2007 Act, s 33(8). 857 See 2007 Act, s 33(4). 858 See 2007 Act, s 33(6). 859 See Australian Citizenship Bill 2006 (Cth) Explanatory Memorandum (Revised) p 60. See also Convention on the Reduction of Statelessness, UN Doc A/Conf 9/15 (1961).

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representative that the person is a citizen of that country or will acquire the citizenship of that country on renunciation of Australian citizenship.860 In Yao v Minister for Immigration and Citizenship (No 2) [2013] FCA 873, Cowdroy J in the Federal Court affirmed an AAT decision to uphold a refusal of the applicant’s application to renounce his Australian citizenship. The applicant claimed he was a citizen of the People’s Republic of China, but failed to produce any evidence that he was, or could immediately obtain, Chinese citizenship. The Nationality Law of the People’s Republic of China provides that any Chinese national who voluntarily acquires the nationality of a foreign country automatically loses Chinese citizenship. Because the applicant had obtained Australian citizenship, the AAT was concerned that he had lost his Chinese citizenship. It was the applicant’s responsibility to provide the necessary evidence to the contrary, which he failed to do. Section 33 of the 2007 Act and its predecessor, s 18 of the 1948 Act, are relevant to applications for resumption of citizenship under s 29 of the 2007 Act. Resumption of citizenship is discussed at [4.960]. Note that children of a person who renounces their Australian citizenship may be affected by the renunciation, through the exercise of ministerial discretion under s 36.861 Renunciation by conduct [4.1180] The controversial Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) commenced operation on 12 December 2015.862 The Act introduced a new avenue for renunciation of citizenship. The new s 33AA provides that a person aged 14 or over who is a national or citizen of a country other than Australia renounces their Australian citizenship if the person acts inconsistently with their allegiance to Australia by engaging in specified conduct with a specified intention. The specified conduct comprises: • engaging in international terrorist activities using explosive or lethal devices; • engaging in a terrorist act; • providing or receiving training connected with preparation for, engagement in, or assistance in a terrorist act; • directing the activities of a terrorist organisation; • recruiting for a terrorist organisation; • financing terrorism; • financing a terrorist; or 860 Citizenship Policy (Cth) Ch 9 p 124. 861 Section 36 is discussed below at [4.1280]. 862 The Act received Royal Assent on 11 December 2015 and s 2 of the Act stated that the Amendment Act would commence on “The day after this Act receives the Royal Assent”.

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• engaging in foreign incursions and recruitment.863 The conduct must be engaged in with the intention of advancing a political, religious or ideological cause and with the intention of either intimidating the public (or a section of the public) or coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country.864 Section 33AA does not apply to conduct by a person unless the person was not in Australia when he or she engaged in the conduct, or the person left Australia after engaging in the conduct and, at the time that he or she left Australia, the person had not been tried for any offence related to the conduct.865 The 2007 Act also provides a specific exception for the conduct of Australian law enforcement or intelligence bodies or in the course of duties to the Commonwealth.866 Section 33AA applies to any Australian citizen aged 14 or over who is a citizen of a country other than Australia, regardless of how the person became an Australian citizen (including a person who became an Australian citizen at birth). The renunciation will take effect, and the Australian citizenship of the person cease, immediately upon the person engaging in the type of conduct set out in the section.867 If the Minister becomes aware of conduct that has caused a person to cease to be an Australian citizen, the Minister must give (or make reasonable attempts to give) written notice868 to that effect at such time and to such persons as the Minister considers appropriate, unless the Minister is satisfied that to do so could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations (a determination which must be reconsidered at least every six months for five years from the date on which it was made).869 The Minister may exempt individuals from the operation of s 33AA.870 However, the Minister does not have a duty to consider whether to exercise the power to exempt an individual from the operation of the provision.871 The rules of natural justice apply to a decision by the Minister to make, or not make, a determination to rescind a notice or exempt a person from the effect of s 33AA, but do not apply to any other 863 All as defined in the Criminal Code (Cth). See 2007 Act, s 33AA(2). 864 2007 Act, s 33AA(3). A person is taken to have engaged in conduct with the intention referred to in s 33AA(3) if at the time of the conduct, the person was a member of a declared terrorist organisation or acting on instruction of, or in cooperation with, a declared terrorist organisation: 2007 Act, s 33AA(4). 865 2007 Act, s 33AA(7). 866 2007 Act, s 35AB. 867 2007 Act, s 33AA(9). 868 Section 35B of the 2007 Act prescribes certain contents which the notice must contain. 869 2007 Act, s 33AA(10) – (12). 870 2007 Act, s 33AA(13) – (19). 871 2007 Act, s 33AA(15).

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decision, or the exercise of any other power, by the Minister under this section (including any decision whether to exercise the power in s 33AA(14) to make a determination).872 The introduction of the new s 33AA represents a significant change to the renunciation framework under the Act. Renunciation of citizenship no longer only occurs by a deliberate step taken by an individual. Renunciation of citizenship under s 33AA is automatic and it is possible for an individual to renounce their Australian citizenship without knowing they are doing so. A person who loses their citizenship under s 33AA is (subject to the operation of provisions deeming citizenship never to have ceased873 and conferring a discretion on the Minister to make a determination in favour of the person retaining their citizenship874) not eligible to resume their Australian citizenship.875 The constitutional ramifications of this section have not yet been considered by the High Court.876

Revocation – offences or fraud [4.1190] Only individuals who obtained their citizenship by application877 may have their citizenship revoked. Section 34 of the Act sets out the grounds upon which the Minister may revoke a person’s citizenship. Some of the grounds apply only to grants of citizenship by conferral. Currently, the Minister may revoke the citizenship of a person who became a citizen by descent, intercountry adoption, or conferral878 if either:

872 2007 Act, s 33AA(22). 873 2007 Act, s 33AA(24). 874 2007 Act, s 33AA(14). 875 2007 Act, s 36A. Resumption of citizenship is discussed at [4.960]. 876 It is anticipated that as soon as the first person is identified as coming within the framework of the new revocation provisions, a challenge is likely to be made around the constitutionality of the provisions: see further, [4.1350]. 877 That is, they obtained their citizenship by descent under subdiv A of Div 2, intercountry adoption under subdiv AA of Div 2, or conferral under subdiv B of Div 2 of Pt 2 of the 2007 Act, or resumed their Australian citizenship under those subdivs. Note that individuals who obtained citizenship by descent (under s 10B, 10C or 11) or grant (under Div 2 of Pt III) under the 1948 Act are taken to have become citizens under subdiv A of Div 2 and subdiv B of Div 2 of Pt 2 of the 2007 Act, respectively. 878 Including because of the operation of s 32, which deals with the resumption of citizenship.

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• the person has been convicted of an offence against s 50 of the 2007 Act, or s 137.1 or 137.2 of the Criminal Code (Cth),879 in relation to the person’s application to become an Australian citizen;880 or • the person obtained the Minister’s approval to become an Australian citizen as a result of third-party fraud,881 and the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.882 In addition, the Minister may revoke a conferral of Australian citizenship883 if: • the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence,884 unless such revocation would render the person stateless;885 or • the person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud,886 879 Relating to providing false or misleading information or documents. 880 2007 Act, s 34(1)(b)(i) (in respect of citizens by descent or intercountry adoption), s 34(2)(b)(i) (in respect of citizens by conferral). Section 50 of the 2007 Act, which deals with false statements or representations, is addressed at [4.1380]. 881 2007 Act, s 34(1)(b)(ii) (in respect of citizens by descent or intercountry adoption), s 34(2)(b)(iv) (in respect of citizens by conferral). “Third-party fraud” is defined in s 34(8) to have occurred if and only if: (a) at any time, another person was convicted of an offence against section 50 of this Act, or section 134.1, 135.2, 135.4, 136.1, 137.1, 137.2, 139.1, 141.1, 142.1, 142.2, 144.1, 145.1, 145.2, 145.4, 145.5 or 149.1 of the Criminal Code (Cth), that the other person committed at any time before the Minister gave the approval; and (b) the act or omission that constituted the offence was connected with the Minister approving the applicant becoming an Australian citizen. 882 2007 Act, s 34(1)(c) (in respect of citizens by descent or intercountry adoption), s 34(2)(c) (in respect of citizens by conferral). 883 Including because of the operation of s 32, which deals with resumption of citizenship. 884 2007 Act, s 34(2)(b)(ii). Pursuant to s 34(5), for the purposes of s 34, a person has been “convicted of a serious offence” if: (a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and (b) the person committed the offence at any time before the person became an Australian citizen. Note that s 34(5) provides for revocation in circumstances where an offence has been committed at any time up until the person actually becomes a citizen by making the pledge of commitment. 885 Under s 34(3), the Minister must not decide to revoke a person’s citizenship only due to the application of s 34(2)(b)(ii) if the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country. 886 2007 Act, s 34(2)(b)(iii). “Migration-related fraud” is defined in s 34(6) to have occurred if and only if: (a) at any time, the person was convicted of an offence against:

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and the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.887 The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) proposed the insertion of two additional bases for the Minister to revoke a person’s citizenship under the Act. If the Bill had been passed, a new s 33A would have allowed the Minister to revoke a person’s Australian citizenship by descent if satisfied that the approval of their citizenship application should never have been given, unless to do so would render the person stateless. Second, a new s 34AA would have allowed the Minister to revoke a person’s citizenship by descent, intercountry adoption, or conferral888 if satisfied that citizenship was obtained by fraud or misrepresentation by any person in the 10 years before the revocation. These amendments to the 2007 Act were not made, but they represented a significant expansion of the Minister’s revokation powers. Unlike the current provisions, the fraud or misrepresentation would not need to have constituted an offence to support a revocation under s 34AA.889 Since 1948, 14 people have had their Australian citizenship revoked.890 The power to revoke Australian citizenship has not been delegated, and must be exercised by the Minister personally. A person ceases to be an Australian citizen at the time of the revocation.891 A person who is in Australia when they cease to be an Australian citizen will automatically hold an ex-citizen visa.892 This is a permanent visa conferring a right to remain in Australia, but does not include permission to return to Australia893 and may be cancelled on character grounds.894 (i) section 234, 236 or 243, or former section 244 (as in force before its repeal by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008), of the Migration Act 1958 (Cth); or (ii) section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code (Cth); that the person committed at any time before the Minister gave the approval; and (b) the act or omission that constituted the offence was connected with the person’s entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia. Note that s 34(6) does not apply to a person in respect of an offence if the Minister is satisfied that the act or omission that constituted that offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident: s 34(7). 887 2007 Act, s 34(2)(c). 888 Including because of the operation of s 32, which deals with the resumption of citizenship. 889 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 34AA). 890 These cases are examined in more detail at [4.1230]. 891 2007 Act, s 34(4). 892 Migration Act 1958 (Cth) s 35(3). 893 A Resident Return Visa is required if the person seeks to leave Australia and return.

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Children of a person whose citizenship is revoked may also be affected by the revocation, by the exercise of ministerial discretion under s 36.895 “Contrary to the public interest” [4.1200] In addition to one of the grounds for revocation896 being satisfied, the Minister must be satisfied that it would be “contrary to the public interest for the person to remain an Australian citizen”.897 A number of appeals under the 1948 Act898 challenged decisions by the Minister that this requirement was satisfied and considered the meaning of the phrase. In Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 (Prasad), the applicant had been convicted of committing a breach of s 50(1) of the 1948 Act899 for lying about his criminal record and marital status on his application for citizenship. The Department decided to deprive the applicant of his citizenship. In considering the applicant’s appeal of this decision, the tribunal discussed the term “public interest”, referring to the Victorian Supreme Court decision of DPP v Smith [1991] 1 VR 63 at 75, where the court had defined it as: a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.900

The tribunal was of the view (at 301) that: Together the [Migration Act 1958 (Cth) and Australian Citizenship Act 1948 (Cth)] are designed to ensure, so far as is possible, that only persons of good character with an adequate knowledge of the responsibilities and privileges of Australian citizenship are granted citizenship. It is of paramount importance, therefore, that information relevant to the character of a person applying for citizenship which is provided to the respondent is true and given in a manner which is not likely to impede the proper assessment of that person’s character.

However, the tribunal also commented (at 301) that: [N]ot every representation or statement made for a purpose or in relation to the Act is of such paramount importance as information relevant to character. A person may, therefore, have been convicted of an offence against s 50 and so meet the criterion set by subpar (i) of s 21(1)(a) without that fact being of great 894 See Migration Act 1958 (Cth) s 501(2). 895 Section 36 is discussed below at [4.1280]. 896 These grounds, concerning the commission of offences or fraud, are defined in s 34 and listed above at [4.1190]. 897 2007 Act, s 34(1), (2). 898 Section 21 of the 1948 Act contained the same words. 899 Which is the equivalent of s 50 of the 2007 Act, and is discussed below at [4.1380]. The applicant was convicted in the Victorian Magistrates Court. 900 Cited in Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at 301.

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significance in relation to the criterion set by subpar (b) [that it would be contrary to the public interest for the person to continue to be an Australian citizen].

In this instance, though, it was the tribunal’s view that the applicant had deliberately set out to deceive the decision-maker so as to impede the assessment of his person’s character, thereby “subverting, or at least attempting to subvert the legislation”.901 Together with the applicant’s perceived lack of candour and honesty in the proceedings, the tribunal was satisfied that it would be contrary to the public interest for the applicant to continue to be an Australian citizen. The tribunal’s approach in Prasad has also been adopted in cases involving serious criminal offences, where the tribunal has commented that: in the Tribunal’s opinion, it would be contrary to the public interest … for a person, who has been granted Australian citizenship under s 13(1) of the [1948] Act, to continue to be an Australian citizen in circumstances where that person: • had, unbeknown to the respondent and to the Department, engaged in criminal conduct incompatible with good character prior to the grant of Australian citizenship; and • has not subsequently become a person of good character.902

In WBU and Minister for Immigration and Citizenship (2007) 45 AAR 225; [2007] AATA 1143, the tribunal found that it would be in the public interest for a person convicted of serious sexual offences against a child to be deprived of his Australian citizenship. The tribunal decided similarly in Osorio and Minister for Immigration and Citizenship (2007) 94 ALD 525; [2007] AATA 59. In both cases, the offence occurred before the application for Australian citizenship was made, but charges were not laid until after Australian citizenship was granted. A full list of the grounds upon which Australian citizenship has been revoked is included at [4.1230]. Exercise of discretion [4.1210] As pointed out by the tribunal in Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292, a finding that it would be contrary to the public interest for a person to continue to be an Australian citizen does not conclude the issue of revocation of citizenship. The Minister has the discretion to exercise the power and, in reaching a decision, could take into account other matters 901 Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at 301. 902 WBU and Minister for Immigration and Citizenship (2007) 45 AAR 225; [2007] AATA 1143 at [37]; Osorio and Minister for Immigration and Citizenship (2007) 94 ALD 525; [2007] AATA 59 at [35].

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that he considered relevant.903 The Minister’s discretion does not arise until the legislative criteria have been satisfied.904 According to the tribunal in Prasad (at 294), “the Minister may take into account any matter which is in fact relevant to the exercise of the discretion”. There is no specific policy regarding the exercise of this discretion, because the power to revoke a person’s citizenship under s 34 has not been delegated by the Minister.905 In considering the evidence before it in Prasad, the tribunal provided guidance to future tribunal decision-makers regarding the burden of proof in such cases. It held that the approach in a deportation hearing of Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 should also be applied to citizenship deprivation hearings. It was found (at 300) that “the burden of proof of facts justifying deportation should be borne by the Minister and the decision-maker must be reasonably satisfied of the occurrence or existence of those facts”. The tribunal was of the view that “any matter … of which there is mere suspicion and no finding of fact … must be put out of the decision-maker’s mind”: at 292. In determining whether it is appropriate to exercise the discretionary power conferred by the Act, the likely advantages to Australian society of depriving the individual of Australian citizenship must be weighed against the disadvantages or hardship to the individual and to other persons.906 In a number of cases, the advantages to the Australian community have been articulated as removing the citizenship status from someone whose character the Department was unable to assess properly before citizenship was granted and as acting as a likely deterrent to others who may be tempted to give false or misleading statements in their

903 Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at 302. The comment was made in the context of s 21 of the 1948 Act, but applies equally to s 34 of the 2007 Act. 904 In Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292, the tribunal looked at the wording of s 21(1) of the 1948 Act (the precursor to s 34 of the 2007 Act) and determined that the exercise of the Minister’s discretion does not arise until both criteria set by paras (a) and (b) are met. The tribunal stated (at 294): “At that stage the Minister, having reached a state of satisfaction that it would be contrary to the public interest for the person to continue to be an Australian citizen, still has a discretion whether or not to deprive him of his Australian citizenship.” 905 See Citizenship Policy (Cth) Ch 9 p 132. 906 Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at 302. This approach was followed by the tribunal in Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [21]; Osorio and Minister for Immigration and Citizenship (2007) 94 ALD 525; [2007] AATA 59 at [41]; WBU and Minister for Immigration and Citizenship (2007) 45 AAR 225; [2007] AATA 1143 at [44].

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applications for Australian citizenship.907 In Prasad, these advantages were held to outweigh the disadvantages and hardship to the applicant and his wife. Deprivation of citizenship under 1948 Act [4.1220] Section 34 of the current 2007 Act is based on s 21 of the 1948 Act, which conferred discretion on the Minister to revoke the citizenship of a person who was an Australian citizen by virtue of a certificate of Australian citizenship.908 In Dvorani v Minister for Immigration and Multicultural Affairs (2000) 31 AAR 536 at 541, the court characterised s 21 of the Act as one where: the Minister was empowered to deprive a person of citizenship in a number of circumstances including those in which there is a manifestation of disloyalty or disaffection to the Crown, unlawful trading or communicating with the enemy at war or where a person is registered by fraud.

That characterisation fits more with the wording of the section between 1949 and 1958 when words such as “act or speech … disloyal or disaffected towards his majesty” were part of the section.909 The wording and terminology of the section have changed since its inception, and the words of the 1948 Act, and indeed of the 2007 Act,910 now concentrate upon citizenship obtained by fraud.911 Prior to its repeal, s 21(1) of the 1948 Act stated: Where: (a) a person who is an Australian citizen by virtue of a certificate of Australian citizenship: (i) has been convicted of an offence against section 50 in relation to the application for the certificate of Australian citizenship;912 or (i) has, at any time after furnishing the application for the certificate of Australian citizenship (including a time after the grant of the certificate), been convicted of an offence against a law in force in a foreign country or against a law of the Commonwealth, a State or Territory for which the person has been sentenced to death or to imprisonment for life or 907 Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at 302; Osorio and Minister for Immigration and Citizenship (2007) 94 ALD 525; [2007] AATA 59 at [42]; WBU and Minister for Immigration and Citizenship (2007) 45 AAR 225; [2007] AATA 1143 at [45]. 908 That is, a person who was a citizen by grant under s 13 of the 1948 Act. 909 “Only during the two world wars were substantial numbers of people de-naturalised: nearly 150 naturalisation certificates were cancelled in 1918 and 1919 as a preface to the deportation of many people of enemy origin (most had been internees) and more were stripped of their naturalization during the second world war”: Dutton, Citizenship in Australia: A Guide to Commonwealth Government Records (1999) p 36. 910 See s 34 of the 2007 Act. 911 This change occurred in 1958 and the number of persons who have had their citizenship revoked is not large. 912 See discussion below at [4.1380].

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for a period of not less than 12 months, being an offence committed at any time before the grant of the certificate (including a time before the furnishing of the application);913 or (ii) in respect of a person who was granted the certificate of Australian citizenship as a result of an application for the certificate made after the commencement of this subparagraph – obtained the certificate as a result of migration-related fraud;914 and (b) the Minister is satisfied that it would be contrary to the public interest915 for the person to continue to be an Australian citizen, the Minister may, in the Minister’s discretion, by order, deprive the person of his or her Australian citizenship, and the person shall, upon the making of the order, cease to be an Australian citizen.

There are two major differences between the revocation provisions in the 2007 Act compared with those in the 1948 Act.916 The first is that s 34 of the 2007 Act confers a power on the Minister to revoke citizenship obtained by descent or intercountry adoption, as well as by conferral. Section 21 of the 1948 Act provided only for the deprivation of grants of citizenship under Div 2 of Pt III of that Act, which was the 1948 Act equivalent of citizenship by conferral. The second is the introduction of “third-party fraud” as a ground for revocation of citizenship – that is, fraud that was perpetrated by a person other than the applicant, and connected with the Minister approving the applicant’s application for Australian citizenship. Consistent with the 913 This provision is only available for persons who applied for citizenship after 22 November 1984 when this provision came into effect. It is also precluded from operating by s 23D(3A) if the person would become stateless. Section 23D(3A) states: “Where, but for this subsection, a person to whom subparagraph 21(1)(a)(ii) applies would, if the Minister were to make an order under subsection 21(1) in relation to that person, become a person who is not a citizen of any country, subsection 21(1) does not apply in relation to that person.” 914 This section was introduced in response to a recommendation of the Joint Standing Committee on Migration that s 21 be amended to ensure that statements made in applying for permanent residence should also be scrutinised for the purpose of citizenship applications: see Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994), Recommendation 35, p 137 at [4.189]. The provision is only available for persons who applied for citizenship on or after 10 April 1997 when this provision commenced. However, there is no time limitation on its application. Arguably, a person who became a citizen after 10 April 1997 and who has lived as a citizen for a substantial period of time, would still be subject to this section. Migration-related fraud is defined in s 21(1A). It concerns conviction against s 234, 236, 243 or 244 of the Migration Act 1958 (Cth) or s 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code (Cth). In addition, the act or omission that constituted the offence must have been directly or indirectly material to the person becoming a permanent resident. See also Crock, Immigration and Refugee Law in Australia (1998) p 184, where she states: “The government has signalled its determination to maintain an uncompromising approach to persons who seek to benefit from immigration fraud.” 915 “Public interest” is not defined in the Act, but is discussed in Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at [4.1230] below. 916 See 1948 Act, s 21.

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other provisions of s 34, the person who committed the fraud must be first convicted of an offence before revocation can be considered.917 The third-party fraud provisions apply only to persons who applied for Australian citizenship on or after 1 July 2007.918 An additional interesting amendment made by the 2007 Act relates to the revocation power and its link to s 50 of the Act is the Crimes Act 1924 (Cth) provision that a person cannot be punished twice.919 This effectively means that where a person has committed an offence and been convicted under one Australian statute, for example the Criminal Code Act 1995 (Cth), then that person cannot be tried again under another statute, for example s 50 of the 2007 Act. Section 21 of the 1948 Act required that a person must have been convicted of an offence against s 50 before the Minister could deprive that person of Australian citizenship under s 21(1)(a)(i). Therefore, the Minister was unable to revoke the citizenship of a person convicted under another statute for a misrepresentation involved in a citizenship application under this subsection. However, the 2007 Act has overcome this issue to a large extent by including conviction of offences under s 137.1 or 137.2 of the Criminal Code (Cth)920 as a ground for revocation of Australian citizenship under s 34. Revocations of Australian citizenship [4.1230] Information provided by the Department indicates that since 1948 and up until the end of May 2016 there had been 20 revocations for offences or fraud. These include revocations such as: • in May 1957 for an October 1956 conviction on one charge of procuring a female under the age of 21 for prostitution purposes; • on 14 August 1969 for making a false statement in regard to marital status to obtain Australian citizenship; • on 29 February 1971 for making a false statement in regard to marital status to obtain Australian citizenship; • on 21 August 1987 for a 15 July 1986 conviction on two counts of making a false statement contrary to s 27(1)(c) of the Migration Act 1958 (Cth), and two counts of making a false statement to obtain Australian citizenship contrary to s 50(1) of the 1948 Act; • on 20 January 1993 for a 21 May 1992 conviction for making a false statement contrary to s 50 of the 1948 Act. The individual had failed to disclose previous convictions on his application for Australian citizenship;921 917 In respect of third-party fraud, see 2007 Act, s 34(8). In respect of the other provisions, see s 34(1)(b)(i), (2)(b)(i), (5), (6). 918 Citizenship Policy (Cth) Ch 9 p 132. 919 See s 4C of the Crimes Act 1924 (Cth). 920 Which relate to the provision of false or misleading information and documents, respectively. 921 This decision was appealed and affirmed by the AAT in Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292.

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• on 8 February 2005 for 14 April 2003 conviction on one count of “False Representation” under s 29B of the Crimes Act 1914 (Cth) and one count of “False Papers Etc” under s 234(1)(b) of the Migration Act 1958 (Cth) for failing to disclose spouse and children on Preferential Family (AY-104) Visa application;922 • on 23 May 2006 for a 26 September 1996 conviction on eight counts of sex-related offences;923 • on 23 May 2006 for a 9 November 2000 conviction on one count of entering a dwelling intending to commit an indictable offence and rape; • on 23 May 2006 for a 14 October 2004 conviction on two counts of unlawful and indecent dealing with a child under 13 years, two counts of inciting a child to unlawfully and indecently deal with him, and one count of unlawful/indecent assault of a child under 16 years;924 • on 27 June 2007 for an 8 April 1993 conviction on two counts of sexual assault and attempted sexual assault; • on 14 August 2007 for a 5 September 2005 conviction for making a false statement contrary to s 50 of the 1948 Act failing to disclose previous convictions when applying for Australian citizenship; • on 14 August 2007 for a 7 May 2002 conviction of one offence against s 51(1) of the 1948 Act for not disclosing the applicant’s previous name on the citizenship application form. The individual was removed from Australia under their previous name. There was evidence that the individual’s marriage was solely for migration purposes; • on 13 September 2007 on the basis of convictions on 18 counts of sexual assault and abuse of minors, ranging from gross indecency to aggravated indecent assaults and aggravated sexual intercourse with minors. The individual was sentenced to 16 years’ imprisonment; and • on 19 September 2007 for a 22 April 1995 conviction on one count of presenting a false passport to a Commonwealth official to obtain entry to Australia, contrary to s 234(1)(a) of the Migration Act 1958 (Cth).925 On 1 December 2013, Immigration Minister Scott Morrison confirmed that his Department was considering revoking the Australian citizenship of a Victorian businessman, who had supplied false information in his visa and citizenship applications. The man was convicted on charges under

922 This decision was appealed and affirmed by the AAT in Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255. 923 This decision was appealed and affirmed by the AAT in Osorio and Minister for Immigration and Citizenship (2007) 94 ALD 525; [2007] AATA 59. 924 This decision was appealed and affirmed by the AAT in WBU and Minister for Immigration and Citizenship (2007) 45 AAR 225; [2007] AATA 1143. 925 Email correspondence from Department of Immigration and Citizenship to Kim Rubenstein (14 February 2014).

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s 234(1)(c) of the Migration Act 1958 (Cth) and s 50(1) of the 2007 Act. The Minister’s final decision on revocation had not been publicly released at the time of writing.926

Revocation – breach of undertaking for special residence requirements [4.1240] Under ss 22A(1A) and 22B(1A), the Minister has a discretion to determine that alternative residence requirements apply to certain applicants for Australian citizenship.927 The Minister may only make a determination under s 22A(1A) or 22B(1A) if, in addition to satisfying the other criteria in those sections, the applicant makes an undertaking that they understand the effect of s 34A.928 Section 34A was inserted into the 2007 Act along with ss 22A(1A) and 22B(1A)929 and allows the Minister, in writing, to revoke a person’s conferral of Australian citizenship if that person became a citizen by exercise of the Minister’s discretion under s 22A(1A) or 22B(1A). To revoke a person’s citizenship pursuant to s 34A, the Minister must be satisfied that: • the person will not be, or was not, ordinarily resident in Australia throughout the period of two years beginning on the day the person became an Australian citizen;930 or • the person will not be, or was not, present in Australia for a total of at least 180 days during that two-year period.931 However, the Minister may not decide to revoke a conferral of citizenship by exercising the discretion in s 34A if such revocation would mean that the person would become a person who is stateless – that is, a person who is not a national or citizen of any country.932 The Minister may only exercise the power under s 34A personally933 and the person ceases to be an Australian citizen at the time of the revocation.934

926 Minister for Immigration and Border Protection, “New Australian Citizen Convicted of Identity Fraud”, Media Release (1 December 2013). On inquiring in regard to this specific case, the Department responded: “Unfortunately the Department is unable, due to privacy restrictions, to release details of any individual cases” (communication on file with author). 927 See discussion of these requirements at [4.830] and [4.880]. 928 1948 Act, ss 22A(1A)(f), 22B(1A)(h). 929 See Australian Citizenship Amendment (Special Residence Requirements) Act 2013 (Cth), with effect from 21 June 2013. 930 2007 Act, s 34A(1)(c)(i). 931 2007 Act, s 34A(1)(c)(ii). 932 2007 Act, s 34A(2). 933 2007 Act, s 34A(3). 934 2007 Act, s 34A(4).

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Children of a person whose Australian citizenship is revoked under s 34A may be affected by the revocation through the exercise of ministerial discretion under s 36.935

Service in armed forces of enemy country or declared terrorist organisation Current provisions [4.1250] Under s 35 of the 2007 Act, a person aged 14 years or older will automatically cease to be an Australian citizen if they are a national or citizen of a foreign country and they either serve in the armed forces of a country that is at war with Australia or fight for, or are in the service of, a declared terrorist organisation.936 The service or fighting must occur outside Australia.937 The person’s citizenship ceases at the time the person commences to serve or fight.938 The provision operates automatically and does not require the Minister to make a decision. Section 35 applies to any Australian citizen aged 14 or over who is a citizen of a country other than Australia, regardless of how the person became an Australian citizen (including a person who became an Australian citizen at birth). The person need not hold nationality or citizenship of the country in whose armed forces they serve; any dual citizenship is sufficient to invoke the provision. The 2007 Act provides a specific exception for conduct of Australian law enforcement or intelligence bodies, or in the course of duties to the Commonwealth.939 If the Minister becomes aware of conduct because of which a person has ceased to be an Australian citizen, the Minister must give (or make reasonable attempts to give) written notice940 to that effect at such time and to such persons as he or she considers appropriate, unless the Minister is satisfied that to do so could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations (a determination which must be reconsidered at least every six months for five years from the date on which it was made).941 The Minister may exempt individuals from the operation of s 35.942 However, the Minister does not have a duty to consider whether to exercise the power to exempt an individual from the operation of the provision.943 The rules of natural justice apply to a decision by the Minister to make, or 935 Section 36 is discussed below at [4.1280]. 936 2007 Act, s 35(1)(a), (b). 937 2007 Act, s 35(1)(c). 938 2007 Act, s 35(1)(a), (b). 939 2007 Act, s 35AB. 940 Section 35B of the 2007 Act prescribes certain contents which the notice must contain. 941 2007 Act, s 35(5) – (7). 942 2007 Act, s 35(8) – (14). 943 2007 Act, s 35(10).

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not make, a determination to rescind a notice or exempt a person from the effect of s 35, but do not apply to any other decision, or the exercise of any other power, by the Minister under this section (including any decision whether to consider exercising the power in s 35(9) to make a determination).944 A person who loses their citizenship under s 35 is (subject to the operation of provisions deeming citizenship never to have ceased945 and conferring a discretion on the Minister to make a determination in favour of the person retaining their citizenship946) not eligible to resume their Australian citizenship.947 The 2015 amendment [4.1260] Until 12 December 2015, s 35 was a section of the 2007 Act that had remained, in effect, as it was in 1948.948 The Australian Citizenship Council had reviewed the 1948 equivalent of s 35 of the 2007 Act, s 19 of the 1948 Act, in its report in 2000.949 It was aware of a view in the community that this provision should have been tightened so that if an Australian citizen fought in the armed forces of any other country then, irrespective of whether that country was at war with Australia, they should be deprived of their Australian citizenship.950 This view reflected a concern for sole allegiance to one country, so that fighting for another country is a statement of allegiance to that other country. However, the Council felt that this was unduly harsh and it recommended that the section remain unchanged.951 At the time, the government confirmed that it would retain the existing arrangement.952 944 2007 Act, s 35(17). 945 2007 Act, s 35(19). 946 2007 Act, s 35(9). 947 2007 Act, s 36A. Resumption of citizenship is discussed at [4.960]. 948 “The section has its origin in the corresponding provision of the Canadian Act which was prompted by the conduct of British-born persons of Japanese origin in the Second World War”: Parry, Nationality and Citizenship Laws of the Commonwealth and of the Republic of Ireland (1957) p 576. Parry also observes that it applies to a person possessing any other nationality or citizenship serving in the enemy forces. 949 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) pp 66–67. 950 Inquiries to the Department in 2002 revealed that no-one had lost his or her citizenship under this section as Australia had not been at war with another country. This reflects upon Australia’s independence as a nation and the Executive’s capacity to enter war. Section 61 of the Constitution carries with it the Royal war prerogative: see Farey v Burvett (1916) 21 CLR 433 at 452. However, the Department’s response suggests that this power has not been used. For more about the evolution of Australian independence, see the High Court decision of Sue v Hill (1999) 199 CLR 462. 951 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 67. 952 Australian Citizenship … A Common Bond, Government Response to the Report of the Australian Citizenship Council (May 1997) p 24.

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However, in early 2014, the Independent National Security Legislation Monitor, Bret Walker SC, recommended consideration of the introduction of a new basis for revocation of citizenship where the Minister is satisfied that a person has engaged in acts prejudicial to Australia’s security and it is not in Australia’s interests for the person to remain in Australia.953 This was one of the catalysts for the introduction of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) in June 2015. The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) came into force on 12 December 2015, replacing the former s 35 and expanding its operation to provide for the cessation of citizenship of a person who fights for, or is in the service of, a declared terrorist organisation (as defined in the new s 35AA, by reference to the definition of “terrorist organisation” in the Criminal Code (Cth)). It is not yet clear what acts or involvement with a declared terrorist organisation the phrase “fights for, or is in the service of” will extend to.954

Conviction for terrorism offences and certain other offences [4.1270] The Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) introduced a new avenue by which an individual can cease to be an Australian citizen based on conviction for certain offences. Section 35A confers a discretion on the Minister to determine in writing that a person ceases to be an Australian citizen if they are convicted of one of the following offences, the person has in respect of the conviction (or convictions) been sentenced to a period of imprisonment of at least six years (or periods totalling at least six years), and the person is, at the time of the conviction, a national or citizen of a country other than Australia. The relevant offences are: • an offence against subdiv A of Div 72 of the Criminal Code (Cth) (dealing with international terrorist activities using explosive or lethal devices); • an offence against s 80.1, 80.1AA or 91.1 of the Criminal Code (Cth) (dealing with treason, materially assisting enemies or espionage); • an offence against Pt 5.3 of the Criminal Code (Cth) (dealing with terrorism offences) (except s 102.8 (associating with terrorist organisations) or Div 104 or 105 (dealing with control orders and preventative detention orders); • an offence against Pt 5.5 of the Criminal Code (Cth) (dealing with foreign incursions and recruitment); 953 Independent National Security Legislation Monitor, Annual Report (28 March 2014) p 57. See also Rubenstein and Field, “Australia’s dual citizenship laws should not be diluted in terror fight”, The Australian (5 September 2014): http:// www.theaustralian.com.au/opinion/australias-dual-citizenship-laws-should-not-bediluted-in-terror-fight/news-story/b575262e98455ebb95dc4a2214c08399. 954 For the Bill’s changes, see also, broadly, Irving and Thwaites, “Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth)” (2015) 26(3) Public Law Review 143.

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• an offence against s 24AA or 24AB of the Crimes Act 1914 (Cth) (dealing with treachery or sabotage); or • an offence against s 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (dealing with foreign incursions). The Minister must be satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia. The Minister must also be satisfied (having regard to the factors listed in s 35A(1)(e) that it is not in the public interest for the person to remain an Australian citizen. The person ceases to be a citizen at the time the Minister’s determination is made.955 Section 35A applies to any Australian citizen who is a citizen of a country other than Australia, regardless of how the person became an Australian citizen (including a person who became an Australian citizen at birth).956 If the Minister makes a determination under s 35A(1), he or she must give (or make reasonable attempts to give) written notice957 to that effect as soon as possible, unless the Minister is satisfied that to do so could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations (a determination which must be reconsidered at least every six months for five years from the date on which it was made).958 The Minister must revoke a determination made under s 35A(1) in relation to a person if the conviction is overturned or quashed and not overturned on appeal (or able to be appealed), in which case the person’s citizenship is taken never to have ceased.959 A person who loses their citizenship under s 35A is (subject to the Minister’s obligation to revoke a determination made under s 35A(1))960 not eligible to resume their Australian citizenship.961 Except for the powers of the Minister under s 35A(1), the rules of natural justice do not apply in relation to the powers of the Minister under s 35A.962 At the time of writing, none of the new provisions introduced on 12 December 2015 have been exercised by the Minister or identified as leading to an individual having lost their citizenship.963 955 2007 Act, s 35A(2). 956 2007 Act, s 35A(3). 957 Section 35B(2) of the 2007 Act prescribes certain contents which the notice must contain. 958 2007 Act, s 35A(5) – (7). 959 2007 Act, s 35A(8), (9). 960 Under 2007 Act, s 35A(8). 961 2007 Act, s 36A. Resumption of citizenship is discussed at [4.960]. 962 2007 Act, s 35A(11). 963 Imminent reliance on the powers was earlier reported but there has been no further reporting in this area: see Maley, “Citizenship Strike on 100 Jihadis”, The Australian

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Children of responsible parents who cease to be citizens [4.1280] Under s 36 of the 2007 Act, the Minister has the discretion to revoke a child’s964 Australian citizenship if that child’s parent ceased to be an Australian citizen by renunciation965 or revocation for offences or fraud,966 or in relation to the special residence requirements.967 However, the child’s citizenship cannot be revoked while they have another responsible parent who is an Australian citizen968 or if revocation would result in the child becoming stateless.969 Citizenship ceases at the time the Minister decides to revoke the child’s citizenship.970 The power to revoke citizenship has not been delegated, so must be exercised by the Minister personally. The 2007 Act introduced a discretion into this provision should the child’s parent cease to be a citizen by renunciation or service in enemy armed forces. Under s 23 of the 1948 Act, a child automatically ceased to be a citizen if their parent’s citizenship ceased in those circumstances.971 As in the 2007 Act, if the parent’s Australian citizenship was revoked, revocation of the child’s citizenship was discretionary.972 The 1948 Act included an exception for children with another responsible parent who was an Australian citizen,973 but did not contain the exception in the 2007 Act for children who would be rendered stateless by the operation of the provision. Children who lose their citizenship under s 36 are eligible to apply to resume their Australian citizenship.974 The lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) and an early draft of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) proposed extending the operation of s 36 to (8 April 2016): http://www.theaustralian.com.au/national-affairs/immigration/ citizenship-strike-on-100-jihadis-fighting-with-islamic-state/news-story/ 4771cdcdb940f250895565c07aa69757. 964 The child must be under 18 at the time the parent ceased to be a citizen: 2007 Act, s 36(1)(b). 965 Under 2007 Act, s 33. 966 Under 2007 Act, s 34. 967 Under 2007 Act, s 34A. 968 2007 Act, s 36(2). 969 2007 Act, s 36(3). 970 2007 Act, s 36(1)(d). 971 1948 Act, s 23(1). A child may also have ceased to be an Australian citizen under s 23 of the 1948 Act if a responsible parent ceased their Australian citizenship under s 17 of the 1948 Act between 26 November 1949 and 3 April 2002 (the date of repeal of s 17). Section 17 is discussed below at [4.1290]. 972 1948 Act, s 23(2). 973 1948 Act, s 23(3). 974 Resumption of citizenship is discussed at [4.960].

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the proposed new grounds for loss of citizenship (under new ss 33A, 33AA, 34AA and 35A).975 However, this proposal was not adopted in the final amendments to the 2007 Act.

Historical provisions regarding loss of citizenship Dual citizenship976 [4.1290] This section deals with the concept of dual citizenship, which was historically tied to loss of Australian citizenship but also operates beyond this context. Dual citizenship in Australia [4.1300] Dual citizenship involves two aspects. First, there are questions of dual citizenship for those persons seeking Australian citizenship by grant. What are the consequences for those persons for their existing citizenship? This is not necessarily a question of Australian law, but rather a question of law for the country of origin. There is nothing in the provisions of the Act for the grant of Australian citizenship requiring a person to renounce their former citizenship. Second, there is the issue of dual citizenship for existing Australian citizens who took up citizenship of another country in addition to their Australian citizenship. Up until 4 April 2002, Australian citizens lost their citizenship when taking up a new citizenship. In the first case, where citizens of another country become Australian citizens, the approach in practice, not law, has varied. The pledge taken upon becoming an Australian citizen has changed over the years. Between 1966 and 1986 the words included “renouncing all other allegiance”.977 However, this wording had no legal consequence for their status as citizens of the other country. The High Court of Australia confirmed this in Sykes v Cleary (No 2) (1992) 176 CLR 77 where two of the persons who ran for Parliament, and whose positions were challenged, were citizens of other countries.978 It was alleged that they were ineligible for election due to s 44(i) of the Constitution, which disqualifies people

975 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (amended s 36(1)(a)); Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) Sch 1 (amended s 36(1)(a)). 976 The term “dual citizenship” could also be “multiple citizenship” as there may be instances where a person holds more than two citizenships. 977 Introduced by Act No 11 of 1966, s 11 (commenced 6 May 1966) and repealed by Act No 70 of 1986, s 11 (commenced 28 August 1986). 978 As a matter of international law, it is for the country of citizenship to determine when a citizen loses his or her citizenship. In this case, neither Greece nor Switzerland mandated the loss of citizenship upon the adoption of a new citizenship.

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who owe an allegiance to another country.979 While both persons had taken an oath of allegiance to Australia with words indicating they were renouncing their former citizenship,980 it was not sufficient in law to shed them of their former citizenship. The court held that the foreign citizen must comply with the laws of the foreign country regarding renunciation of citizenship in order to be divested of that citizenship. Many countries allow their citizens to take up a new citizenship without losing their original or existing citizenship.981 979 Section 44(i) states: “Any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.” 980 The second respondent, Mr Delacretaz, was born in Switzerland and in 1960 was naturalised as an Australian citizen pursuant to the Nationality and Citizenship Act 1948 (Cth). The oath or affirmation of allegiance required by the 1948 Act, as it stood in 1960, did not involve the renunciation of prior allegiance. Despite this, Mr Delacretaz, in fact, formally renounced all other allegiance as a preliminary to taking the oath. It appears from the Second Reading speech for the Nationality and Citizenship Act 1967 (Cth) (which introduced the form of oath and affirmation involving renunciation of all other allegiance) that, for some time past, there had been a “practice of requiring applicants … to renounce allegiance to their former countries” in “a prominent and separate part of the naturalisation ceremony”. It was clear from Mr Delacretaz’ naturalisation certificate that that is what happened in his case: see Sykes v Cleary (No 2) (1992) 176 CLR 77 at 138–139 per Gaudron J. The third respondent, Mr Kardamitsis, was born in Greece and became an Australian citizen in 1975 pursuant to the Australian Citizenship Act 1948 (Cth) and, in so doing, renounced all other allegiance and swore the oath of allegiance in a form similar to, but not identical with, that sworn by the second respondent. The form of oath and affirmation required by the Citizenship Act 1948, as it stood in 1975, was introduced in 1966 when s 11 of the Nationality and Citizenship Act 1966 (Cth) amended Sch 2 to the 1948 Act “by inserting after the letters ‘AB’ … the words ‘renouncing all allegiance’”. At the same time, s 12 of the Nationality and Citizenship Act 1966 (Cth) introduced Sch 3, which contained the form of oath and affirmation required in the case of women wishing to be registered as British subjects without citizenship. This also involved the renunciation of all other allegiance: see Sykes v Cleary (No 2 (1992) 176 CLR 77 at 133 per Gaudron J. For further discussion about Gaudron J’s approach to citizenship, see Rubenstein, “Meanings of Membership: Mary Gaudron’s Contributions to Australian Citizenship” (2004) 15 Public Law Review 305. 981 See Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship. Table 6.1 lists countries that allowed dual citizenship at the time of taking evidence; see also pp 181–188 at [6.16]–[6.36], which explain overseas practice at the time of the report. See also Rubenstein, “From Supranational to Dual to Alien Citizen: Australia’s Ambivalent Journey” in Bronitt and Rubenstein (eds), Citizenship in a Post-National World Australia and Europe Compared (2008) p 1. The Australian Citizenship Council also includes the specific examples of other countries, including the UK, New Zealand, Canada, France and the US, which all allow for dual citizenship: see Australian Citizenship Council, Australian Citizenship for a New Century (February 2000). There has also been a lot of academic discussion about dual citizenship in a more international context: see, for instance, Spiro, “Dual Nationality and the Meaning of Citizenship” (1997) 46 Emory Law Journal 411, which supports the embracing of dual nationality; Alenikoff, Between Principles and Politics: The Direction of US Citizenship Policy (1998) Ch 3, which addresses dual citizenship; and a response by O’Brien, “US Dual Citizen Voting Rights: A Critical Examination of Alenikoff’s Solution” (1999) 13 Georgetown Immigration Law Journal 573. For a discussion about dual

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In the second case, since the inception of the 1948 Act until 4 April 2002, there had been a provision mandating loss of Australian citizenship for a person who acquired a new citizenship.982 Although the provision has been repealed, it has enduring relevance, due not only to the implications of dual citizenship for parliamentary membership under s 44(i) of the Constitution, but because some individuals who lost their Australian citizenship under this provision prior to 4 April 2002 may not yet be aware that this has occurred. This provision, s 17 of the 1948 Act, is discussed below. Operation and interpretation of s 17 of 1948 Act [4.1310] Section 17 of the 1948 Act mandated the loss of Australian citizenship upon acquisition of another citizenship. This provision is still relevant to individuals who may have lost their citizenship prior to 4 April 2002, and to their relatives.983 Before 22 November 1984, an

citizenship in Canada, see Galloway, “The Dilemmas of Canadian Citizenship Law” (1999) 13 Georgetown Immigration Law Journal 201. For a discussion of the issues in Russia and post-communist states, see Ginsburgs, “The Rights to a Nationality and the Regime of Loss of Russian Citizenship” (2000) 26 Review of Central and East European Law 1; and Liebich, “Plural Citizenship in Post-Communist States” (2000) 12 International Journal of Refugee Law 97. For a discussion about dual citizenship in the European Union, see Hansen and Weill (eds), Towards a European Nationality: Citizenship, Immigration and Nationality Law in the EU (2001) and Hansen and Weill (eds), Dual Nationality, Social Rights and Federal Citizenship in the US and Europe (forthcoming). For a discussion about international law and dual citizenship, see Aleinikoff and Klusmeyer (eds), From Migrations to Citizens: Membership in a Changing World (2000), in particular Part 3 and Ch 15; Rubenstein and Adler, “International Citizenship: The Future of Nationality in a Globalized World” (2000) 7 Indiana Journal of Global Legal Studies 511; Rubenstein, “Globalization and Citizenship and Nationality” in Dauvergne (ed), Jurisprudence for an Interconnected Globe (2003) and Martin, “New Rules on Dual Nationality for a Democratizing Globe: Between Rejection and Embrace” (1999) 14 Georgetown Immigration Law Journal 1. This last article neatly describes the arguments often canvassed on this issue and tries “to sketch out a middle position between endorsers and oppositionist, drawing as much as possible on the strongest of the insights tendered by each camp” (p 34). For discussion on dual nationality and women, see Committee on Feminism and International Law, Final Report on Women’s Equality and Nationality in International Law, Report of the Sixty-Ninth Conference of the International Law Association (2000) p 276ff. 982 In fact, the prevention of dual nationality began before the legal concept of Australian citizenship existed. Section 21 of the Nationality Act 1920 (Cth) provided that a person would lose their British nationality when, through a “voluntary and formal” Act, they became naturalised in a foreign state. 983 For example, the 2013 case of Heiner v Minister for Immigration and Citizenship (2013) 213 FCR 280; [2013] FCA 617 concerned an application for citizenship by descent under s 16 of the 2007 Act, which was denied because the applicant’s father had unknowingly lost his Australian citizenship in 1999 by operation of s 17 of the 1948 Act. This case is discussed further below.

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adult984 ceased to be an Australian citizen if they were outside Australia and acquired the citizenship of another country by some voluntary and formal act other than marriage.985 Between 22 November 1984 and 4 April 2002, if a person acquired the citizenship of another country they would cease to be an Australian citizen if the “sole or dominant purpose” of the person’s actions was to acquire the other citizenship.986 People often lost their Australian citizenship without knowing it. One context where this may have become apparent was when the person applied for an Australian passport.987 That was the situation in Re Allan and Department of Foreign Affairs (1986) 5 AAR 432; 11 ALD 28. The applicant was born in Melbourne in 1940 and orally requested the Irish Embassy in Germany to register him as an Irish citizen in December 1979 because such citizenship would entitle him to work in the European Community. He supplied the Embassy with birth certificates of his Irish-born grandmother and his Australian-born mother and himself, and was registered in December 1979 in the Foreign Births Entry Book with no ceremony relating to his assumption of Irish citizenship. It was not until he applied for an Australian passport that it came to his attention that he may no longer be regarded as an Australian citizen. In determining this question, the AAT looked at the Irish Nationality and Citizenship Act 1956 and determined that the applicant acquired his Irish

984 The definition of “full capacity” in s 5(3)(b) of the 1948 Act was amended in 1973 by Act No 99 to change the age from 21 to 18. This Act commenced on 1 June 1974. A person under the age of 18 who acquired another citizenship did not satisfy s 17. Therefore, children could not lose their Australian citizenship through their own actions by obtaining another citizenship. 985 This section was repealed by Act No 129 of 1984, s 13 which commenced on 22 November 1984. Senator Gietzelt (New South Wales Minister for Veterans’ Affairs) stated in Hansard: “Clause 13 repeals existing section 17 and substitutes new provisions to the effect a person, being an Australian citizen of 18 years of age, will cease to be an Australian citizen, where an act is committed – whether inside or outside Australia, but other than marriage – specifically for the purpose of acquiring a foreign nationality or citizenship. But where that act was done under duress or unwittingly, clause 17 provides the person may, at the discretion of the Minister, resume Australian citizenship lost under new section 17.” See Australia, Senate, Debates (4 May 1984) Vol S103 p 1571. 986 This section was inserted by Act No 129 of 1984, s 13 and commenced on 22 November 1984. 987 See Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 60, where it was reported that around 600 cases of loss of Australian citizenship come to the Department’s attention each year, often in the context of an individual applying for an Australian passport. The current application for a passport does not have a question about possible loss of Australian citizenship, but in the past the form did have such a question. Given there is no formal procedure of notification between Australia and other countries when a person applies for another citizenship, there is no method for the Department to determine that a person has lost their Australian citizenship unless the person informs the Department. See further, Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) pp 65–66.

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citizenship in 1979988 and, as such, had fulfilled the provisions of s 17989 in undertaking a “voluntary and formal” act of acquiring citizenship of another country. Even though the request was an oral request for registration, it was sufficient to be a “formal” act, and there was no dispute as to its voluntary nature. The Federal Court looked at the wording of s 17 in the case of Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 15 AAR 483 (Gugerli). In that case, Gugerli was born in Sydney in 1960. Her father was an Australian citizen and her mother was born in Switzerland and became a permanent resident of Australia. From birth, Gugerli was an Australian citizen by virtue of being born in Australia. In 1985 she applied for recognition of Swiss citizenship pursuant to an amendment of the Swiss Nationality Act 1994, which provided that persons born to Swiss nationals were entitled to apply for recognition as Swiss nationals. The form which Gugerli filled in as a consequence of this change was titled “Application of Recognition as a Swiss Citizen”. The court held that, had she been governed by the wording of s 17 prior to its change in 1984, she would have lost her Australian citizenship because, according to Swiss law, she only became a national by virtue of her application in 1985. However, the change in wording was significant in the court’s view for the outcome of this case. The words “sole or dominant purpose” imputed an intent on behalf of the applicant to acquire a citizenship of another country. However, it was stated in Gugerli (at 488) that: although “purpose” in the sense in which the word is used in s 17 looks to a state of mind, it is not to be equated in all respects with motive. If a person’s sole or dominant purpose in doing an act is to acquire the citizenship of another country it matters not why the person wishes to acquire the citizenship or what use he or she will make of it. The motive for acquiring the citizenship is irrelevant.

But in this case, the motive was different. In the court’s view (at 488), the crucial issue was whether Gugerli thought she was applying for recognition of an existing citizenship rather than gaining a new citizenship. If she thought she was an existing Swiss national, then she did not act with the purpose of acquiring Swiss citizenship. From the evidence before the court, it was held that Gugerli, whilst wrong in her understanding of the law, did hold the view (compounded by the title of the form she filled in with the Swiss authorities) that she was gaining recognition of an existing citizenship and, as such, did not fulfil the provisions of s 17 of the Act. The court commented (at 489) on the change

988 As opposed to already being an Irish citizen. Section 7(2) of the Irish Nationality and Citizenship Act 1956 allowed a person born outside Ireland, whose parent was also born outside Ireland, to be registered under s 27 of the Act as an Irish citizen, but, in essence, he was not an Irish citizen until his registration occurred. 989 As it was in 1979.

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of wording in 1984 and stated that “the terms of the Act were amended no doubt to overcome problems such as were considered in Re Allan”.990 The Australian Citizenship Instructions, and now the Citizenship Policy, take the comments of the Federal Court into account in explaining to decision-makers how to go about assessing s 17 cases. They identify the key question to be: “At the time they did the act or thing which resulted in the acquisition of the foreign citizenship, was [the applicant’s] sole or dominant purpose to acquire that citizenship?”991 Following the finding in Gugerli that purpose is not to be equated with motive. The Citizenship Policy explains that: [t]hose who voluntarily applied for, and subsequently acquired, the citizenship of another country will usually find it difficult to establish that the “sole or dominant purpose” of the act of applying was other than to acquire that citizenship. The fact that the reason behind the application was so that they would be eligible to obtain employment, hold a licence etc does not mean that the “sole or dominant purpose” was other than the acquisition of that citizenship.992

Some examples of situations in which obtaining the citizenship of another country did not fulfil s 17, include:993 • after 22 November 1984, the incidental acquisition of another citizenship or nationality as the result of doing an act or thing for another purpose – for example, to obtain resident status; • Italian-born Australians who return to Italy and automatically reacquire Italian citizenship after one year of continuous uninterrupted residence in Italy with resident status; • acquisition of Rhodesian citizenship during the period of the Unilateral Declaration of Independence (11 November 1965–18 April 1980; • acquisition of Singaporean citizenship during the period of internal self-government (1 November 1957–2 June 1959) provided that citizenship of the United Kingdom and Colonies was not acquired at the same time; • acquisition of another nationality or citizenship automatically solely because of marriage (not including acquisition through applying for the citizenship or nationality subsequent to marriage under provisions for spouses of the citizens or nationals of that country); and • exercise of an entitlement to a travel document, identity card, or other evidence of a citizenship of a country other than Australia by a person who is a dual national of both Australia and that country. Other decisions have required the tribunal to consider s 17 in instances where the children of former Australian citizens were seeking to rely 990 See also Senator Gietzelt’s statement: above, fn to [4.1310]. 991 Citizenship Policy (Cth) Ch 9 p 133. 992 Citizenship Policy (Cth) Ch 9 p 133. 993 As set out in the Department of Immigration and Citizenship (Cth), Australian Citizenship Instructions (25 February 2015) at [8.5.3]. These examples are not included in the Citizenship Policy.

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upon s 10C of the 1948 Act, and more recently upon s 16 of the 2007 Act, to be registered as Australian citizens by descent.994 For example, in Turner and Minister for Immigration and Multicultural Affairs [1999] AATA 904, the tribunal held that the applicant did not satisfy the s 10C requirements that the applicant’s parent be an Australian citizen at the time of application for Australian citizenship. The tribunal found that the applicant’s father ceased to be an Australian citizen under s 17 of the Act by virtue of becoming registered as a citizen of the United Kingdom. The applicant’s father entered into a formal and voluntary act by complying with the legislation in order to obtain British citizenship and his motive (of being unable to obtain an Australian passport in time for travels associated with his employment) was found to be irrelevant despite the unintended consequence of losing his Australian citizenship. In Eddison and Minister for Immigration and Multicultural Affairs [2001] AATA 533, the applicant sought registration of Australian citizenship under s 10C(4)(b) based on his mother’s birth in Australia. The applicant’s mother remarried an Italian citizen and resided in Italy. The tribunal determined that the action of the applicant’s mother constituted an “act or thing” to acquire Italian citizenship for the purposes of s 17(1), independent of the act of marriage itself. The tribunal held that s 17 does not seek to draw a distinction between administrative acts and other formal acts or things. By presenting herself and many documents to Italian authorities, the applicant’s mother clearly performed acts above and beyond the act of marriage for the purposes of attaining Italian citizenship. Accordingly, the applicant’s mother lost her Australian citizenship pursuant to s 17(1) and neither of the applicant’s parents were Australian citizens. While the tribunal noted that legislative change in the area may soon occur, until that time the tribunal could not assist the applicant. 994 See earlier discussion of citizenship by descent provisions at [4.380]. Note that the tribunal did not have specific power under s 52A of the 1948 Act to review decisions under s 17. However, in Turner and Minister for Immigration and Multicultural Affairs [1999] AATA 904 at [15] and [16], the tribunal stated: “While s 52A prescribes the decisions which fall within the jurisdiction of the Tribunal and a decision under s 17 is not one of these, its absence from s 52A seems paradoxical when the language of s 17 is picked up in paragraph (a) of s 23AA, a provision concerned with resumption of citizenship and for which decisions made thereunder are reviewable by the Tribunal. Section 17 sets out circumstances in which Australian citizenship is lost. In the context of the Citizenship Act a finding in relation to citizenship status is a conclusion as a step along the path to the ultimate or operative decision of the primary decision maker: see the discussion in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337–338. In reviewing a decision under s 10C, the issue of Australian citizenship of a parent necessarily arises in determining whether or not the applicant satisfies the requirements of s 10C. It would be a curious result indeed and cannot in my view be correct, that the inquiry is limited to the extent … that the Tribunal cannot consider the citizenship status of the applicant’s father when clearly the citizenship of a parent is a relevant issue in determining whether the qualifications for a s 10C application have been satisfied. A distinction has to be drawn between a declaration as to a person’s citizenship and a finding for the purposes of the decision under review.”

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In the Federal Court decision of Heiner v Minister for Immigration and Citizenship (2013) 213 FCR 280; [2013] FCA 617, the court upheld a decision by the AAT to refuse an application for citizenship by descent under s 16 of the 2007 Act on the grounds that the child did not have a parent who was an Australian citizen at the time of her birth.995 The child’s father, Mr Heiner, was not aware that his Australian citizenship had been lost; his Australian passport had been renewed earlier in 2011 with an expiry date of 2021. However, the court held that Mr Heiner had lost his Australian citizenship in 1999 by operation of s 17 of the 1948 Act. In 1999, four years after his marriage to his first wife, who was an Irish citizen, Mr Heiner had signed a “declaration of acceptance of Irish citizenship”. Mr Heiner submitted that he simply accepted post-nuptial Irish citizenship for the purposes of registering the marriage outside of Ireland, and that he did not make an application for Irish citizenship. However, the sole or dominant purpose of Mr Heiner making the declaration was found to be the acquisition of Irish citizenship.996 The tribunal described the making of the declaration as “an independent action unrelated to the act of marriage which took place nearly five years previously on 12 November 1994”.997 The Federal Court agreed.998 The applicant was not eligible for citizenship by descent.999 The Constitution and repeal of s 17 [4.1320] Section 17 operated in law, so that as soon as people satisfied s 17, they were no longer Australian citizens. Section 17 was repealed by the Australian Citizenship Legislation Amendment Act 2002 (Cth), which commenced on 4 April 2002. When the amendment legislation was debated in the Senate on 14 March 2002, Senator Bolkus tabled a memorandum of advice, dated 27 June 1995, prepared by the late A R 995 The applicant was born in Spain in 2011. Her mother was a citizen of the UK and her father was a citizen of Ireland and also claimed to be a citizen of Australia. One month after her birth, the applicant’s father had made an application on behalf of the applicant for Australian citizenship by descent under the 2007 Act. At the time of the application, the father held both Irish and Australian passports. 996 See Heiner and Minister for Immigration and Citizenship [2012] AATA 236. 997 Heiner and Minister for Immigration and Citizenship [2012] AATA 236 at [19]. 998 See Heiner v Minister for Immigration and Citizenship (2013) 213 FCR 280; [2013] FCA 617. 999 However, the court pointed out alternative grounds on which the applicant, and her father, may be eligible to obtain Australian citizenship. The applicant would be eligible for a conferral of citizenship under s 21(6) as a person born outside Australia whose parents were not Australian citizens at the time of her birth, but in respect of whom a parent had ceased to be an Australian citizen under s 17 of the 1948 Act. Mr Heiner would have been eligible to resume his Australian citizenship under s 29(3) of the 2007 Act subject to satisfying the Minister that he was of good character. “Counsel [for the applicant] informed the court that Mr Heiner was reluctant to avail himself of the provisions of s 29(3) on account of asserting to foreign authorities during his business travels since 1999 that he is an Australian citizen. In response, the court reminded counsel that the current proceeding is not about Mr Heiner but the applicant”: see Heiner v Minister for Immigration and Citizenship (2013) 213 FCR 280; [2013] FCA 617 at [46].

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Castan QC,1000 regarding the constitutional validity of s 17. In that advice it was argued that s 17 fell beyond the limit of constitutional power because it sought to exclude from “the people of the Commonwealth”, in its constitutional sense, persons who in truth have not ceased to be such people, but who nevertheless wish to take out dual citizenship. Some of Castan QC’s reasoning relied upon the constitutional concept of “equality” under the law. While this concept has not been well-developed by the High Court since the date of that advice, the decision of the High Court in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 lends support to some of the concepts raised by Castan QC in his memorandum.1001 For instance, Gaudron J states (at [51]) that the Parliament’s power to legislate regarding deprivation of membership of the Australian community “can only be exercised by reference to some change in the relationship between the individual and the community”. Whether taking up another citizenship would fall properly within that definition is questionable. Policy issues associated with dual citizenship [4.1330] One of the most contested and contentious areas of the 1948 Act was the former s 17 and the deterrence of dual citizenship. Dual citizenship was the subject of a 1976 review by the Joint Committee on Foreign Affairs and Defence1002 and it was also considered in the context of the national consultations on multiculturalism and citizenship conducted in 1982.1003 More recently, two further reviews considered the worthiness of s 17,1004 and a related parliamentary review of s 44(i) of the Constitution disqualifying dual citizens from becoming members of Parliament also considered related policy matters.1005 1000 See Australia, Senate, Debates (14 March 2002), proof version, pp 552–557. 1001 See discussion of this analysis in the context of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) at [4.1350]. 1002 Joint Committee on Foreign Affairs and Defence, Dual Nationality, Report (1976) p 8. The Committee supported the policy that every person should have one nationality only, but recognised that the holding of dual nationality by some Australian nationals was inevitable given the differences in domestic nationality laws. 1003 Department of Immigration and Ethnic Affairs, National Consultation on Multiculturalism and Citizenship, Report (1982). See in particular the discussion on dual citizenship (p 28). 1004 See Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) Ch 6, where it is stated that the issue of dual citizenship attracted most attention throughout the inquiry. See also Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) pp 60–66, where it is stated that nearly three-quarters of the submissions to the Council addressed the issue of loss of Australian citizenship upon the acquisition of another. The Council sets out in detail many personal comments received regarding the consequences of s 17 (pp 62–63). 1005 Australia, Parliament, Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (July 1997).

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At one level there was a basic inequality in the former system. Persons who are born with another citizenship and who also have, or later acquire, Australian citizenship, are entitled to dual citizenship.1006 However, once a person was an Australian citizen, he or she could not take up a new citizenship. Thus, some people were able to be dual citizens and others were not entitled to this privilege; it depended upon the order of obtaining the citizenship. More pertinent, perhaps, was the question of how appropriate it was to divest an Australian of citizenship if he or she became a citizen of another country. The arguments against repealing the section and maintaining the status quo revolved around issues of allegiance and loyalty. It was argued that one was necessarily disloyal to Australia in taking up another citizenship. However, both the Joint Standing Committee on Migration and the Australian Citizenship Council were swayed by arguments to the contrary, that s 17 should be repealed. The Joint Standing Committee on Migration stated: The overwhelming view in submissions was that Australia’s insistence on single citizenship for those born in Australia is outmoded and discriminatory. In a world of increasing mobility, it was considered anachronistic that one section of the Australian population should be disadvantaged by a prohibition on accessing more than one citizenship.1007

Considering matters such as globalisation, the Australian Citizenship Council stated that: as we move into the twenty-first century, the prevalence of dual citizenship internationally will rapidly increase. The law and practice of most countries with which Australia likes to compare itself permits citizens of those countries to obtain another citizenship without losing their original citizenship … These countries simply recognize that they have an internationally mobile population and that they can retain connection with this population even if another citizenship is acquired.1008

The issue of allegiance and commitment is at the heart of the dispute. The pledge of commitment, discussed earlier,1009 is set out in Sch 1 of the Act. The pledge states: From this time forward, under God, I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and responsibilities I respect, and whose laws I will uphold and obey. 1006 This is because, according to international law, it is up to each State to determine under its own law who are its nationals. 1007 Australia, Parliament, Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994) p 206 at [6.90]. 1008 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 65. 1009 See above at [4.120].

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The use of the term “loyalty” is interesting. The Preamble uses the term “loyalty to Australia” and this is used within the content of the Preamble. Yet the title of the pledge in Sch 1 to the Act is “Pledge of Commitment as a Citizen of the Commonwealth of Australia”. Is there a difference between the terms “loyalty” and “commitment”? “Loyalty” is defined in the Shorter Oxford English Dictionary as, inter alia: Faithful adherence to one’s promise, oath, word etc; conjugal fidelity Faithful adherence to the sovereign or lawful government. Also now enthusiastic devotion to the sovereign’s person and family Legality (of marriage).

The notion of being faithful to one’s country has connotations, particularly with its link to fidelity, of being loyal to one country only. In contrast, “commitment” is defined in the Shorter Oxford English Dictionary as: “The action of entrusting, giving in charge, or commending.” To invest with trust is to create a relationship of responsibility. Committing oneself to Australia is putting oneself in a special relationship of acting in the best interests of the country. It has less of a sense of sole allegiance – one can be responsible to, or committed to, more than one country. An associated issue, also discussed above at [4.1300] in the context of Sykes v Cleary (No 2) (1992) 176 CLR 77 is s 44(i) of the Constitution, which disqualifies from membership of the Australian Parliament people who owe an allegiance to another country.1010 The Australian Citizenship Council looked at this issue in its Report, Australian Citizenship for a New Century.1011 It referred to the report of the Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution,1012 which recommended that a referendum be held to delete s 44(i) of the Constitution and to insert a new provision requiring candidates and members of Parliament to be Australian citizens. It also sought to empower Parliament to enact legislation determining the grounds for disqualification of members of Parliament in relation to foreign allegiance. The government response to the report supported a repeal of s 44(i) but recommended a new provision establishing failure on the part of a parliamentarian or candidate to retain Australian citizenship as a ground for disqualification.1013 The Citizenship Council supported the recommendation of the Standing Committee on Legal and Constitutional Affairs that there be a requirement for intending 1010 Section 44(i) states: “Any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.” 1011 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) pp 75–77. 1012 Australia, Parliament, Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (July 1997). 1013 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 77.

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parliamentary candidates to be Australian citizens. It recommended that the government give further consideration to the issue of how to more appropriately measure “undivided loyalty to Australia” for intending candidates for Parliament and members of Parliament.1014 This issue of undivided loyalty is seen by some as different in regard to membership of the Australian Parliament, compared to the more general issue of membership of the Australian community. Others, however, see no difference at all. This writer is firmly of the view that dual citizenship is a positive development and that it should be accepted as a necessary part of contemporary societies, both in Parliament and in the community generally.1015 The government issued a discussion paper on dual citizenship in June 20011016 and called for further public comment. The discussion paper provided a comprehensive overview of the topic of dual citizenship, and included topics such as “How Current Citizenship Law Works”, “What Other Countries Do”, “Proposed Repeal of Section 17”, “Arguments for the Change” and “Arguments Against the Change”. Having received further submissions from the public,1017 the government announced its decision to repeal s 17. Thus, the Australian Citizenship Legislation Amendment Act 2002 (Cth) repeals s 17 through Sch 1 item 1. With the repeal of s 17, adult Australian citizens acquiring the nationality or citizenship of another country will not lose their Australian citizenship from 4 April 2002. However, this will not benefit those Australian citizens who lost their Australian citizenship before the amendment Act received Royal Assent.1018 The policy issues around allegiance and dual citizenship have been central to the most recent changes to the 2007 Act with the introduction of the Australian Citizenship Amendment (Allegiance to Australia) Act (Cth) on 1014 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 77. The government in its response to the report stated that it is “committed to seeking opportunities to progress review and public debate of issues related to s 44(i) of the Australian Constitution”: Australian Citizenship … A Common Bond, Government response to the Report of the Australian Citizenship Council (May 2001) p 27. 1015 Rubenstein, “Why We Are Not All Born Equal”, The Age (1 July 1999); Rubenstein, “Let’s Face It. Today We’re Citizens of the World”, Opinion piece, The Australian (22 May 2001); Rubenstein, “Loyalty and Membership: Globalization and its Impact on Citizenship, Multiculturalism, and the Australian Community” in Levey (ed), Political Theory and Australian Multiculturalism (2008) p 171. 1016 Department of Immigration and Multicultural Affairs, Loss of Australian Citizenship on the Acquisition of Another Citizenship, Discussion Paper on Section 17 of the Australian Citizenship Act 1948 (June 2001). 1017 The Discussion Paper led to a detailed response from the Southern Cross Group. The Group submitted to the Department a comprehensive document entitled, “Section 17 of the Australian Citizenship Act 1948; Grounds for Appeal and Associated Issues” (6 July 2001): http://www.southern-cross-group.org. See also Chapter 7 at [7.120]. 1018 To resume their citizenship, those people will still need to apply under, and fulfil the conditions in, s 29: see further, [4.960].

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the 12 December 2015. These new provisions only apply to those individuals who hold another citizenship (including Australian-born individuals) and in essence provide for a new “inequality” associated with dual citizenship. The consequence is that dual citizens are more vulnerable than sole citizens to losing their Australian citizenship.1019 It also means that two people can undertake exactly the same activity, and only the dual citizen will be liable to lose their Australian citizenship, leading to an inequality of citizenship in Australia. The other context in which dual citizenship has arisen in Australian courts has been where non-citizens have applied for refugee status in Australia. If a person seeks refugee status in Australia, one of the considerations of the decision-maker is whether the person has another citizenship (other than the citizenship from which the person is claiming refuge) and is, therefore, not a refugee.1020 This was directly considered in the Federal Court decision of Koe v Minister for Immigration and Multicultural Affairs (1997) 148 ALR 353. In this case it was alleged by the Minister that the applicant, who was seeking refugee status from East Timor, could be considered a citizen of Portugal and thus able to claim the protection of one of his citizenships. Therefore, the applicant was not a refugee.1021 This is an example of how matters of international law also become matters of domestic law. The Migration Act 1958 (Cth) describes the class of persons entitled to a protection visa by reference to Australia’s “protection obligations” under the Convention Relating to the Status of Refugees (Refugees Convention). This example is also relevant to the policy discussion on the value of dual citizenship as it displays that issues of dual citizenship have consequences in international law, and Australian dual citizens need to be conscious of this. This subject will be addressed further in Chapter 7 at [7.40] on the future of Australian citizenship law.1022 Loss of citizenship by residence outside Australia [4.1340] A former provision of the Act that is still relevant to the descendants of persons bound by that provision is s 20. This section operated between 26 January 1949 and 8 October 1958. It provided that an Australian citizen who was naturalised, and who had “resided outside 1019 See Rubenstein and Lenagh-Maguire, “More or Less Secure? Nationality Questions, Deportation and Dual Nationality” in Edwards and van Waas (eds), Nationality and Statelessness under International Law (2014) pp 264–291. 1020 The 1951 Convention Relating to the Status of Refugees, as amended by Art 1A(2) of the 1967 Protocol Relating to the Status of Refugees, refers to the case of a person who has more than one nationality and states that the person must be lacking protection in each country of nationality. 1021 The Federal Court decided the applicant did not have effective Portugese citizenship and, accordingly, directed the Refugee Review Tribunal to reconsider its decision. 1022 See Chapter 7 at [7.110].

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Australia and New Guinea for a continuous period of seven years shall cease to be an Australian citizen” unless certain conditions had been met.1023 The current relevance of s 20 is through s 16 of the 2007 Act, which allows people to apply for citizenship by descent if their parent was an Australian citizen at the time of their birth.1024 In Dvorani v Minister for Immigration and Multicultural Affairs (2000) 31 AAR 536 (Dvorani), which concerned the 1948 Act precursor to s 16, the question was whether the father of the applicant for citizenship by descent was an Australian citizen at the time of her birth in 1950 (and remained so at the time of his death in 1973 due to the legislative requirements in s 10C of the 1948 Act). At the time of the appellant father’s death he had been living outside Australia for a continuous period of seven years and the AAT determined that, according to s 20, he had ceased to be an Australian citizen and, therefore, the applicant could not obtain citizenship by descent. The Federal Court overturned this decision, and the basis upon which it did so is relevant for the meaning of “citizenship” in Australia and, in particular, for the deprivation provisions. In Dvorani, the court held that the term “resided outside Australia” should be determined in light of the legislative context within which it appeared. It was stated (at 541) that this context was one of: a common element of choice, voluntariness or intentional action. Indeed, s 20 itself includes a mechanism whereby a person may make an express declaration of intention at an Australian consulate. This is perhaps the clearest way of establishing a person’s subjective position to the Australian community, although it is not the only way.

The court (at 541) rejected the Minister’s submission that the words “resided outside Australia” were the equivalent to, and no more than, “being outside” or “remaining outside” Australia and, in its view (at 542), a person “is only taken to be residing outside Australia if they do so intentionally or voluntarily”. Moreover, the court clarified that in the event that it was wrong on the point, the expression was capable of more than one meaning and so resource to extrinsic materials was justified. In doing so, the court was of the view (at 543) that: 1023 Section 20 stated that unless: “(a) he has, at least once during the second and each subsequent year, or at such other times as the Minister, in special circumstances, allows, during that period, given the prescribed notice, at an Australian consulate, of his intention to retain his Australian citizenship; (b) he has so resided by reason of his service under an Australian government or his service with an international organization of which the Australian Government is a member of his service in the employment of a person, society, company or body of persons resident or established in Australia or New Guinea; (c) he has given the notice referred to in paragraph (a) of this section for portion of that period and has had such service for the remainder of that period; or (d) he is a person not of full age and resides with his responsible parent or his guardian who is an Australian citizen”. 1024 See above at [4.420].

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[t]he purpose of s 20 was clearly to prevent persons taking advantage of the privileges and rights attaching to Australian citizenship while having no intention of retaining any other connection with the Australian community.

In addition, given that the deprivation of citizenship involved loss of an important status and rights, the legislation needed to be clear and in express wording (at 543).

The Constitution and 2015 provisions relating to cessation of citizenship [4.1350] When the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth) was introduced into Parliament, it was referred to the Parliamentary Joint Committee on Intelligence and Security for public submissions and review.1025 The Committee received 43 submissions and 7 supplementary submissions from sources including government agencies, legal, community and civil liberties groups, academics and members of the public.1026 Chapter Three of the report is devoted to “Constitutional Validity”1027 with the discussion centring on two constitutional questions: 1. Does the Constitution grant the Commonwealth power to legislate with respect to citizenship and the conditions under which it is held? 2. Are there constitutional limitations that might apply, specifically arising from the separation of powers provisions in Ch IIIConstitution and the implied right to vote? One area not directly referred to in the report, but also open to further constitutional analysis if the matter arises before the High Court, is the meaning of “the people of the Commonwealth” and the extent to which the Executive has the power to remove any citizens from membership of “the people”: see the earlier discussion at [4.1320], and in particular the reference to the opinion provided by the late Ron Castan QC on the constitutional validity of the later repealed s 17 (immediate loss of citizenship for those who took up another citizenship) which involved analysis of this area.1028 1025 It was also referred to the Parliamentary Joint Committee on Human Rights, and its assessment is in the Twentieth Report of the 44th Parliament, Human Rights Scrutiny Report (18 March 2015). 1026 Australia, Parliament, Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (4 September 2015): http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/ Intelligence_and_Security/Citizenship_Bill/Report. A list of submissions received by the Committee is at Appendix A of the Report. 1027 See Australia, Parliament, Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (4 September 2015) Ch 3 pp 23–34. 1028 See Memorandum of Advice by A R Castan QC, dated 27 June 1995 and incorporated into Hansard in 2002 (Australia, Senate, Debates (14 March 2002), proof copy,

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Finally, there are international law matters that arise from the introduction of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Cth). While the Act was drafted so that sole citizens can not be deprived of their citizenship and made stateless, there are still arguments that the Act “is contrary to international attempts to reduce statelessness, not wholly compatible with human rights standards and overlooks emergent requirements on the treatment of aliens”.1029

EVIDENCE OF AUSTRALIAN CITIZENSHIP [4.1360] Section 37 of the 2007 Act provides that a person may apply to the Minister for evidence of the person’s Australian citizenship.1030 If the Minister is satisfied of the person’s identity,1031 the Minister may give the person a notice1032 stating that he or she is an Australian citizen at a particular time.1033 The operation of s 37 was considered by the Federal Court in Lee v Minister for Immigration and Citizenship (2011) 199 FCR 336; [2011] FCA 1458, where Foster J commented (at [63]–[64]): Apart from the requirement that the Minister be satisfied of the identity of the s 37 applicant, s 37 does not specify any other matters of which the Minister must be satisfied or which the Minister is bound to take into account before giving the notice contemplated by the section. However, given the form of the notice and the evidentiary significance of the notice, the Minister must be satisfied that the applicant is, in fact, an Australian citizen as at the date specified in the notice. If, as in the present case, the claim to be an Australian citizen is based upon the engagement of s 12(1)(b), then the Minister must be satisfied that the applicant has met the requirements of s 12(1)(b). … “May” in s 37(2) should be interpreted as “must”. There is no residual discretion to refuse to give the notice if the s 12(1)(b) and s 37(4) requirements have been met.

A finding of fact must be made that the person is an Australian citizen before they can be given a notice under s 37(2).1034 A notice is prima facie pp 552–557), which relies upon the implied nationhood power to enable the Commonwealth Parliament to define those situations in which persons will be taken to form part of the “people of the Commonwealth”. 1029 See further, Tully, “Citizen Deleted”, 33 Australian Yearbook of International Law 131. See also a set of pieces on the European Union Democracy Observatory on Citizenship website with a “kick–off” piece by Macklin, “The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship?”: http://www.eudo-citizenship.eu/ commentaries/citizenship-forum/1268-the-return-of-banishment-do-the-newdenationalisation-policies-weaken-citizenship. 1030 The application must be made in accordance with s 46, accompanied by the fee set out in the Australian Citizenship Regulations 2007 (Cth) Sch 3. 1031 2007 Act, s 37(4). 1032 Australian Citizenship Regulations 2007 (Cth) prescribe a form for the notice in Sch 2. 1033 2007 Act, s 37(2). 1034 Citizenship Policy (Cth) Ch 10 p 138. Note that a decision to refuse to issue a notice under s 37 is not reviewable by the AAT: see 2007 Act, s 52; Sapak and Minister for

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evidence of the matters in the notice.1035 However, the giving of a notice of evidence of Australian citizenship does not make a person an Australian citizen if the person was not already a citizen under the Act.1036 The Citizenship Policy states that “careful attention needs to be given to establishing the Australian citizenship status of the applicant”.1037 Many people acquire citizenship automatically, so the Department may not have a record of their citizenship and will have to make a finding about the person’s identity and citizenship status. Other people become citizens by conferral or resumption, in which case their citizenship will be recorded with the Department. A person’s cessation of citizenship may or may not be recorded in the Department’s database, depending on whether or not their citizenship ceased automatically. The Citizenship Policy sets out comprehensive guidance about establishing citizenship status and identity.1038 The Minister may, by writing, cancel a notice given to a person under s 37.1039 If the Minister cancels the notice, or if the Minister makes a decision to revoke a person’s Australian citizenship under s 34 or 34A, then the Minister may request the person to surrender a notice given under s 37.1040 It is an offence to fail to comply with such a request.1041 These 2007 Act provisions streamline the numerous 1948 Act provisions that dealt with the process of obtaining evidence of Australian citizenship.1042

OFFENCES AGAINST THE ACT [4.1370] The 2007 Act contains nine offences.1043 The most significant of these are contained in s 50 of the Act relating to false statements or representations, conviction for which can result in revocation of Australian Immigration and Citizenship [2012] AATA 137. However, the reasons for the underlying decision that a person is not an Australian citizen may be reviewable: see, eg, English and Minister for Immigration and Citizenship [2010] AATA 107. 1035 2007 Act, s 37(5). Under s 39, it is an offence to alter a notice given under s 37. Offences under the Act are dealt with in more detail at [4.1370]. 1036 Citizenship Policy (Cth) Ch 10 p 137. 1037 Citizenship Policy (Cth) Ch 10 p 139. 1038 See Citizenship Policy (Cth) Ch 10. 1039 2007 Act, s 37(6). 1040 2007 Act, s 38(1), (2). Section 38(3) specifies the form that a request under s 38(1) or (2) must take. 1041 2007 Act, s 38(4). Offences under the Act are dealt with in more detail at [4.1370]. 1042 These included ss 32, 36, 42, 43, 44, 44A, 45, 46, 46A and 47. The corresponding regulations were regs 8, 18, 19 and 23(3) of the Australian Citizenship Regulations 1960 (Cth) (SR No 62) as amended. 1043 2007 Act, ss 38(4), 39, 42, 43, 44, 45.

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citizenship.1044 The other offences relate to evidentiary notices and identifying information. Criminal penalties apply to the commission of any of the offences under the Act.

False statements or representations [4.1380] Section 50 of the 2007 Act is the equivalent of s 50 of the 1948 Act. The offences in s 50 carry particularly serious consequences. As discussed at [4.1190], the Minister may revoke a person’s Australian citizenship obtained by conferral, descent or intercountry adoption if the person is convicted of an offence under s 50. Terms of imprisonment may also be imposed. Section 50 states: (1) A person commits an offence if: (a) the person makes, or causes or permits to be made, a representation or statement; and (b) the person does so knowing that the representation or statement is false or misleading in a material particular; and (c) the person does so for a purpose of or in relation to this Act. Penalty: Imprisonment for 12 months. (2) A person commits an offence if: (a) the person conceals, or causes or permits to be concealed, a material circumstance; and (b) the person does so for a purpose of or in relation to this Act. Penalty: Imprisonment for 12 months.

The term “false or misleading in a material particular” has been considered by the Federal Court of Australia in the context of the Migration Act 1958 (Cth). The Full Court held that the term “material” “requires no more and no less than that, the false particular must be of moment or of significance, not merely trivial or inconsequential”.1045 In the context of s 20 of the Migration Act 1958 (Cth), the court stated: A statement will be relevant to that purpose if it may – not only if it must or if it will – be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made.1046

Therefore, the parallel for s 50 would be if the statement may be taken into account in making a decision under the 2007 Act. In another migration law case, Michalowski v Minister for Immigration, Local Government 1044 If citizenship was obtained by descent, intercountry adoption or conferral. Revocation of citizenship for offences is discussed at [4.1190]. 1045 See Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352 per Black CJ, Davies and Neaves JJ. 1046 Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352 per Black CJ, Davies and Neaves JJ. This approach has recently been applied in both the migration and taxation contexts: see Khan v Minister for Immigration and Citizenship [2011] FCA 75 and Sanctuary Lakes Pty Ltd and Commissioner of Taxation (2012) 129 ALD 126, respectively.

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and Ethnic Affairs (1992) 35 FCR 265 at 270, the court held that, in using the word “statement”, the subsection is not referring “to a failure to supply further information at a later time”. Section 20 of the Migration Act 1958 (Cth) did not include the words “permit to be made”, as in s 50 of the 1948 Act. Therefore, it could be argued that the latter words may cover a failure to supply further information, which may, in certain circumstances, “permit” a false or misleading representation to be made. Between 1958 and 1997 there was a restriction upon the use of s 50: “a prosecution for an offence against sub-section (1) may be commenced at any time within 10 years after the commission of the offence”. Therefore, anyone who obtained citizenship before 10 April 1997 could only be subject to this provision within ten years of having been granted citizenship. This section was repealed in 1997, so anyone who has obtained citizenship on or after 10 April 1997 can now be prosecuted under this section at any time. The earlier ten-year provision was an impediment, in particular, for persons seeking to pursue alleged Nazi war criminals by encouraging the government to deprive such persons of their Australian citizenship on the basis of their failure to disclose their criminal past in their citizenship applications. The ten-year limitation had expired on many of the persons alleged to have committed such crimes. The amendment to the Act in 1997 did not assist in the endeavours of those seeking to strip such persons of their Australian citizenship because it was not retrospective in operation. The change will be of use, however, for any future allegations of war crimes against persons coming into Australia on or after 10 April 1997 who ultimately obtain Australian citizenship and offend s 50.1047

Offences related to evidentiary notices [4.1390] A person commits an offence if they fail to surrender an evidentiary notice given under s 37 of the Act upon request in accordance with s 38.1048 It is an offence to alter, or cause or permit to be altered, an evidentiary notice given under s 37.1049

1047 Section 50 of course has a broader application than the pursuit of war criminals. 1048 2007 Act, s 38(4). The penalty is 10 penalty units. Evidentiary notices are discussed at [4.1360]. 1049 2007 Act, s 39. The penalty is imprisonment for 12 months.

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Offences related to identifying information [4.1400] Under the 2007 Act, it is an offence to access identifying information without authorisation1050 and to disclose identifying information where the disclosure is not permitted.1051 A person also commits an offence if the person intentionally and knowingly causes an unauthorised modification or impairment of identifying information.1052 Finally, if a person is responsible for identifying information, and fails to destroy the information as soon as practicable after the obligation to keep the information under the Archives Act 1983 (Cth) no longer applies, that person will commit an offence.1053

Bogus documents [4.1410] New provisions were inserted into the Act in 2015 by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth). The new ss 45A to 45D prohibit a person (whether a citizen or a non-citizen) from giving a bogus document to the Minister, a tribunal or any other official under the Act. The provisions give the Minister the power to seize and retain a bogus document by giving written notice to the person. Corresponding powers were introduced to the Migration Act 1958 (Cth) at the same time. Prior to the amendment, where a bogus document was detected, officers had to return the documents to the person. The Explanatory Memorandum explained: While [the Department] does take action so that the person does not obtain a benefit as a result of using a bogus document at the time (for example, [the Department] may refuse a visa application based on a bogus birth date) the document remains available to the person to continue to use it for potentially fraudulent purposes.1054

The new provisions were designed to address the Department’s inability to act in those circumstances.

1050 See 2007 Act, s 42, which provides exceptions and allows the Minister to authorise persons to access such information. The penalty is imprisonment for two years, or 120 penalty units, or both. Establishing identity is discussed at [4.1120]. 1051 See 2007 Act, s 43, which provides exceptions and a definition of permitted disclosures. The penalty is imprisonment for two years, or 120 penalty units, or both. 1052 See 2007 Act, s 44(1), (2). Section 44 sets out an exception and interpretation of s 44(1) and (2). The penalty for committing an offence under s 44(1) or (2) is imprisonment for two years, or 120 penalty units, or both. 1053 See 2007 Act, s 45, which provides exceptions and definitions. The penalty is imprisonment for two years, or 120 penalty units, or both. 1054 See Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth) Explanatory Memorandum, p 71.

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APPLICATION REQUIREMENTS, DECISIONS AND ADMINISTRATIVE MATTERS Application requirements [4.1420] All applications for Australian citizenship under the Act must comply with s 46. Section 46(1) states that applications must be on the relevant approved form, contain the information required by that form, be accompanied by any other information or document prescribed by the regulations1055 and be accompanied by the fee (if any) prescribed by the regulations.1056 The effect of the provision is that the Minister is unable to consider an application that has not fulfilled these requirements. The Citizenship Policy reiterates that an application will be invalid if it does not satisfy the requirements set out in s 46. However, the policy also distinguishes between invalid applications and incomplete applications, stating that an application that is valid (in that it complies with s 46) but incomplete should not be returned to the applicant. Instead, the applicant should be given a reasonable opportunity to provide the information required to complete the application.1057 The Citizenship Policy provides detailed guidance for decision-makers about the required form and contents of citizenship applications.1058

Decision-making and delegation [4.1430] Section 47 states that if the Minister makes a decision under the Act in relation to a person, the Minister must give the person notice of the decision. All notices must be in the form prescribed by the regulations,1059 and if the decision is an adverse decision, must include reasons for the decision.1060 However, the Minister is not required to personally make every decision, exercise every power or meet every obligation under the Act. There are two ways for the Minister to delegate these responsibilities. First, the Minister may arrange for the use of computer programs to carry out the Minister’s functions under the Act or the regulations.1061 Second, s 53 of the Act gives the Minister the power to delegate to any person all or any

1055 The Australian Citizenship Regulations 2007 (Cth) did not, at the time of writing, prescribe any other information or documents. 1056 The fees are prescribed in the Australian Citizenship Regulations 2007 (Cth) Sch 3. 1057 Citizenship Policy (Cth) Ch 16 p 176. 1058 See Citizenship Policy (Cth) Ch 16. 1059 See Australian Citizenship Regulations 2007 (Cth) reg 14. 1060 However, note that a failure to comply with the form and content requirements does not make the decision invalid: 2007 Act, s 47(5). 1061 See 2007 Act, s 48.

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of the Minister’s powers under the Act and regulations,1062 except the function under s 23A(1) to approve the citizenship test.1063 The Citizenship Policy provides guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (Cth).1064 They instruct decisionmakers to be mindful that policy cannot constrain the exercise of delegated powers under the Act.1065 The Citizenship Policy is discussed at [4.210]. The policy states that a good decision is lawful, impartial, fair and reasonable and it sets out general principles of decision-making for delegates of the Minister.1066

Administrative matters [4.1440] Section 54 of the Act gives the Governor-General the power to make regulations prescribing matters required or permitted by the Act to be prescribed, or prescribing matters necessary or convenient to be prescribed to give effect to the Act.1067

REVIEW OF DECISIONS [4.1450] Administrative law is essential in looking at the exercise of power by the Minister under the Act. Specific decisions within the Act are subject to judicial review, or to merits review before the AAT. These avenues are outlined below. 1062 See 2007 Act, s 53(1). The Minister’s decision to refuse or approve an application for Australian citizenship is discussed with respect to s 17 (descent) at [4.450]; s 19D (Hague Convention adoption) at [4.520]; s 24 (conferral) at [4.910]; and s 30 (resumption) at [4.970]. 1063 The instrument of delegation made under s 53, which provides the power to make decisions under the Act (IMMI10/083), relevantly delegates certain decision-making powers to a person who: • is performing duties under or for the purposes of the Act and • is for the time being the holder of, or is performing the duties of, a position in a State, Territory, Regional or Area Office of the Department being an office classified as a Senior Executive Service position, or at the level of Executive Level 2 or 1, or at the level of APS Level 6, 5, or 4. In addition, there are a number of officers in National Office who are delegated to make decisions under the Act. 1064 Citizenship Policy (Cth) Ch 17. 1065 Citizenship Policy (Cth) Introduction. 1066 Citizenship Policy (Cth) Ch 17 p 188. One of the amendments proposed by the Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) was to specify that the Minister, Secretary or an employee of the Department may use personal information obtained under the Migration Act 1958 (Cth) or the regulations under the 2007 Act for the purposes of the 2007 Act or regulations, and disclose personal information obtained under the 2007 Act or regulations to the Minister, Secretary or an officer under the Migration Act 1958 (Cth). However, the Bill was not passed: see Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1 (new s 53A). 1067 The current regulations are the Australian Citizenship Regulations 2007 (Cth).

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Other administrative law avenues useful to persons affected by decisions under the Act include seeking the assistance of the Commonwealth Ombudsman through the Ombudsman Act 1976 (Cth), and seeking access to government information through the Freedom of Information Act 1982 (Cth).1068

Judicial review [4.1460] The principles of judicial review apply to decisions under the Act, as the Minister is an “officer of the Commonwealth” under s 75(v) of the Constitution. The Minister could therefore be subject to the prerogative writs under the Constitution and the equitable remedies of injunction and declaration. The original jurisdiction of the High Court has also been conferred on the Federal Court1069 and this allows common law remedies to be sought in the Federal Court. It also allows the High Court to remit cases arising under its original jurisdiction. Another way of judicially reviewing the Minister’s decisions or conduct in the Federal Court is through the Administrative Decisions (Judicial Review) Act 1977 (Cth).1070 The jurisdiction of that Act extends to decisions of an administrative character made under an enactment, other than decisions in Sch 1 of the Act.1071 The grounds for review are codified common law grounds, including ultra vires and natural justice.1072 Applicants1073 also have a statutory right to reasons for decisions under this Act.1074

Merits review [4.1470] A person does not have an immediate right to a merits review of a decision under the Act by the AAT. The AAT’s role is to review whether the decision was the correct or preferable one on the material before it (rather than on the material before the original decisionmaker).1075 Kirby J affirmed that function and obligation in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37], stating that: 1068 None of these Acts are restricted to citizens. For further discussion, see Chapter 5 at [5.210]. 1069 See s 39B of the Judiciary Act 1903 (Cth). 1070 Interestingly, most of the Federal Court cases looking at the Act have involved appeals on law from the decisions of the AAT through s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). 1071 See Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3. 1072 See Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 6. For a more detailed examination of judicial review, see Aronson and Dyer, Judicial Review of Administrative Action (4th ed, 2009). 1073 An applicant does not have to be a citizen to have standing under this Act: see Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(4). 1074 See Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13, 13A and 14. This right does not exist in common law: see Public Service Board of NSW v Osmond (1986) 159 CLR 656. 1075 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.

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ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.

The right to this review of decisions under the Act comes from s 52 of the Act.1076 Section 52 provides for administrative review by the AAT of the following decisions: (a) a decision under section 17 to refuse to approve a person becoming an Australian citizen;1077 (aa) a decision under section 19D to refuse to approve a person becoming an Australian citizen;1078 (b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;1079 (c) a decision under section 25 to cancel an approval given to a person under section 24;1080 (d) a decision under section 30 to refuse to approve a person becoming an Australian citizen again;1081 (e) a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5) (about war);1082 and (f) a decision under section 34 or subsection 36(1) to revoke a person’s Australian citizenship.1083

Section 52 imposes some limits on the AAT’s power to review decisions under s 24 of the Act. A person who applied for a conferral of Australian citizenship under s 21 and who is aged 18 or over cannot apply for review of the decision to refuse their application unless they are a permanent resident, or the decision refers to the eligibility ground in s 21(8) about statelessness.1084 Further, if the AAT is reviewing a decision under s 24 to refuse an application for a conferral of Australian citizenship, the AAT is 1076 See, eg, Hileli and Department of Immigration and Ethnic Affairs [1995] AATA 419 concerning the 1948 Act, where the applicant was refused citizenship under s 10B of that Act as neither parent was an Australian citizen at the time of the application. The tribunal stated it did not have the power to review decisions relating to s 10B. The writer notes that if there had been some question of ultra vires or breach of natural justice in the making of the decision, then the Administrative Decisions (Judicial Review) Act 1977 (Cth) may have been an alternate avenue for review. 1077 2007 Act, s 52(a). 1078 2007 Act, s 52(aa). 1079 2007 Act, s 52(b). 1080 2007 Act, s 52(c). 1081 2007 Act, s 52(d). 1082 2007 Act, s 52(e). 1083 2007 Act, s 52(f). 1084 See 2007 Act, s 52(2).

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prohibited from exercising the Minister’s power under s 22A(1A) or 22B(1A), and from reviewing the exercise (or failure to exercise) of that power.1085 Amendments to the 2007 Act proposed by the Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) would have significantly restricted applicants’ access to review of citizenship decisions.1086 If the amendments had been passed, s 52 would have prohibited a person under the age of 18 from applying for review of a decision to refuse to approve their application for citizenship under s 21(5) unless that person was a permanent resident or the holder of a prescribed visa. In addition, under a new s 52(4), a decision under the Act that was made by the Minister personally would not have been reviewable if the notice of the decision included a statement that the Minister was satisfied that the decision was made in the public interest.1087 Further, it was proposed that a new s 52A allow the Minister to set aside decisions by the AAT and make his or her own decision, where the AAT set aside a delegate’s decision under s 17, 19D, 24,1088 251089 or 301090 which was made on the grounds of character or identity concerns.1091 However, the Bill lapsed due to the 2016 federal election. For decisions made under the 1948 Act before 1 July 2007, the provisions of the 1948 Act that dealt with merits review to the AAT continue to apply. At the time of its repeal, s 52A of the 1948 Act allowed for review of: (aaaa) decisions of the Minister under subsection 10B(1A) that the Minister is not satisfied that a person is of good character;1092 (aaa) decisions of the Minister under section 10C refusing an application for registration;1093 (aa) decisions of the Minister that the Minister is not satisfied as to the matters referred to in subsection 11(3);1094 1085 See 2007 Act, s 52(3). 1086 See Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1. 1087 However, the Minister will be required to table in each House of Parliament the reasons for the Minister’s decision within 15 days of the decision: see Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1. 1088 To refuse to approve a person’s application for Australian citizenship. 1089 To cancel an approval given to an applicant for citizenship by conferral. 1090 To refuse to approve a person becoming a citizen again. 1091 As with decisions under the new s 52(4), the Minister will be required to table in each House of Parliament the reasons for the Minister’s decision within 15 days of the decision: see Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Sch 1. 1092 1948 Act, s 52A(aaaa). 1093 1948 Act, s 52A(aaa). 1094 1948 Act, s 52A(aa).

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(a) decisions of the Minister under section 13 or subsection 23D(1) refusing an application;1095 (ab) decisions of the Minister under section 14B revoking the grant of a certificate;1096 (b) decisions of the Minister under section 18 other than decisions under subsection 18(5);1097 (c) decisions of the Minister under subsection 21(1) or 23(2) or section 47;1098 (d) decisions of the Minister, the Secretary, or a person authorized by the Secretary for the purposes of section 23A or 23B, under that section;1099 (e) decisions of the Minister under subsection 23AA(1) refusing to register a declaration or under subsection 23AA(2) refusing to include the name of a child in a declaration;1100 (ea) decisions of the Minister under subsection 23AB(1) refusing to register a declaration or under subsection 23AB(3) refusing to include the name of a child in a declaration;1101 and (f) decisions of the Minister that the Minister is satisfied as to the matters referred to in subsection 23D(1A).1102

Similar to the 2007 Act, a person is not entitled to make an application under s 52A for review of a decision to refuse a grant of citizenship under s 13 of the 1948 Act (other than paras 13(9)(a) or (b)) unless the person is a permanent resident.1103 Interestingly, the AAT did not have specific power to review decisions under the former s 17. However, in Turner and Minister for Immigration and Multicultural Affairs [1999] AATA 904 at [15]–[16], the tribunal stated: While s 52A prescribes the decisions which fall within the jurisdiction of the Tribunal and a decision under s 17 is not one of these, its absence from s 52A seems paradoxical when the language of s 17 is picked up in paragraph (a) of s 23AA, a provision concerned with resumption of citizenship and for which decisions made thereunder are reviewable by the Tribunal. Section 17 sets out circumstances in which Australian citizenship is lost. In the context of the Citizenship Act a finding in relation to citizenship status is a conclusion as a step along the path to the ultimate or operative decision of the primary decision maker: see the discussion in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337–338. In reviewing a decision under s 10C, the issue of Australian citizenship of a parent necessarily arises in determining whether or not the applicant satisfies the requirements of s 10C. It would be a curious result indeed and cannot in my view be correct, that the inquiry is limited to the extent … that the Tribunal cannot consider the citizenship status 1095 1948 Act, s 52A(a). 1096 1948 Act, s 52A(ab). 1097 1948 Act, s 52A(b). 1098 1948 Act, s 52A(c). 1099 1948 Act, s 52A(d). 1100 1948 Act, s 52A(e). 1101 1948 Act, s 52A(ea). 1102 1948 Act, s 52A(f). 1103 See 1948 Act, s 52A(2).

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of the applicant’s father when clearly the citizenship of a parent is a relevant issue in determining whether the qualifications for a s 10C application have been satisfied. A distinction has to be drawn between a declaration as to a person’s citizenship and a finding for the purposes of the decision under review.1104

CONCLUSION [4.1480] The philosophical messages in the Australian Citizenship Act 2007 (Cth) and its 1948 precursor that connect to the legal meaning of “citizenship” are not entirely clear. The repeal of s 17 of the 1948 Act prohibiting dual citizenship, the introduction of avenues to citizenship for persons adopted overseas, and recent amendments to allow special exceptions to residency requirements, are reflective of a broader approach to membership, recognising the international environment within which citizenship operates. However, there are strong signals that citizenship is a tool for immigration control and exclusion. Amendments such as the addition of a permanent residency requirement into s 21(5) in 2009, the 2007 introduction of the citizenship test framework and the more recent enactment of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) emphasise this. Further, although it lapsed due to the 2016 Federal election, the signficant changes to the citizenship framework proposed by the Australian Citizenship and Other Legislation Amendment Bill (Cth) 2014 were illustrative of the potential for Australia’s citizenship framework to be shifted further towards functioning as a real barrier to membership of the Australian community. It is not yet clear whether the proposed amendments will be re-introduced to the new Parliament. The Australian Citizenship Act 2007 (Cth) does not provide any further guidance as to the meaning of “citizenship” in more substantive terms than does an examination of the way it affects, in practical terms, the lives of the citizenry. Within the Act there is no statement regarding citizenship rights and responsibilities. One is forced to look at other pieces of legislation to discover the more practical legal consequences of the status of citizenship and what they, in turn, reflect about the meaning of “citizenship” in Australia. These considerations will be examined in the following chapters.

1104 For full-text copies of decisions of the AAT since 1976 as selected by the tribunal, see: http://www.austlii.edu.au/au/cases/cth/aat. See also the first edition of this book (at [4.1370]) for a list of AAT cases reviewed pursuant to s 52A of the 1948 Act prior to 2002. A similar list has not been included in this edition due to the availability of decisions online and the accessibility of online search engines, such as http:// www.austlii.edu.au and CaseBase (via subscription at http://www.lexisnexis.com.au).

Chapter 5

Legislative Consequences of Citizenship [5.10] INTRODUCTION: UNDERPINNING PHILOSOPHIES ............................................. 291 [5.20] Rights and duties of citizens and non-citizens ............................................................. 294 [5.30] Why discriminate on the basis of citizenship? .............................................................. 296 [5.40] Value-adding citizenship: exclusivity? ............................................................................ 297 [5.50] Rights of residency – normative inclusive views of membership ............................. 299 [5.60] CURRENT REALITIES ...................................................................................................... 300 [5.70] Acts that confer benefits .................................................................................................... 301 [5.80] Acts that encourage Australian investment ................................................................... 307 [5.90] Acts that grant an immunity ............................................................................................ 308 [5.100] Acts concerned with extraterritoriality ......................................................................... 310 [5.110] Income Tax Acts ................................................................................................................ 312 [5.120] Acts relating to jurisdiction ............................................................................................ 314 [5.130] Acts that impose liabilities or obligations or prohibition ......................................... 316 [5.180] Acts that impose membership qualifications .............................................................. 323 [5.190] Migration Act 1958 (Cth) ................................................................................................. 328 [5.200] Acts that require residents to register in order to participate .................................. 333 [5.210] Acts that confer rights ..................................................................................................... 334 [5.250] Other Acts that discriminate ........................................................................................... 340 [5.260] Acts that explicitly do not discriminate on the basis of citizenship ....................... 344 [5.270] Other Acts that impact upon membership and rights ............................................... 347 [5.310] CONCLUSION .................................................................................................................. 350

INTRODUCTION: UNDERPINNING PHILOSOPHIES [5.10] In an unreported 1986 judgment of the Full Federal Court of Australia, Re Khoi Tri Tang (also known as Chi Tzo Tseng) and Candice Hui Nhi Cho v Hon Christopher John Hurford, Minister of State for Immigration and Ethnic Affairs [1986] FCA 214, Pincus J discussed the value of Australian citizenship: An examination of recent statutes shows that the law currently attaches considerable weight to the concept of Australian citizenship. The Migration Act itself is an example. … Australian citizenship is constantly assuming greater legal importance. For example, under recent amendments to the Commonwealth Electoral Act 1918, Members of Parliament and voters must be Australian

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citizens; under the Public Service Reform Act of 1984, only Australian citizens may be appointed as public servants. … Taking a broader view, it is obviously right that holding citizenship in our nation should be regarded as a matter of importance, bringing with it special rights and obligations.1

This chapter examines these reflections. What weight does the law give to Australian citizenship? As this book explains,2 neither the Australian Citizenship Act 1948 (Cth) nor the more recent Australian Citizenship Act 2007 (Cth) sets out the special rights and obligations of citizenship; this is determined rather by the myriad pieces of federal legislation that discriminate on the basis of citizenship. This chapter shows that the distinction based on citizenship is broader than the Acts mentioned by Pincus J in 1986. However, does this necessarily mean that citizenship is constantly assuming greater legal importance? By looking at those areas in which citizenship is determinative of rights and responsibilities, this chapter assesses its value and importance in current practice. The chapter also addresses whether it is “obviously right that holding citizenship in our nation should be regarded as a matter of importance, bringing with it special rights and obligations”.3 The text at [5.60] addresses the first two questions – by looking at federal legislation4 discriminating upon the basis of citizenship and residence,5 it illustrates in a descriptive manner the current6 functional value of citizenship and answers whether it is constantly assuming greater legal 1 Re Khoi Tri Tang (also known as Chi Tzo Tseng) and Candice Hui Nhi Cho v Hon Christopher John Hurford, Minister of State for Immigration and Ethnic Affairs [1986] FCA 214 at [30] and [31]. 2 See, in particular, Chapters 1 and 4. 3 This issue is discussed by Sangeetha Pillai in her recent article, “The Rights and Responsibilities of Australian Citizenship: A Legislative Analysis” (2014) 37(3) Melbourne University Law Review 1. 4 This chapter looks at key relevant primary legislation. Whilst the first edition of this book provided a comprehensive listing of all relevant legislation, the research for the second edition has not comprehensively covered all legislation (instead focusing on the most relevant Acts). Neither edition examined all regulations, nor subordinate regulations, although some are referred to where relevant. 5 The meaning of “residence” is explained further below as there are different categories of residence. Note Gummow J’s comments in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512 at 521 that “citizenship and residence are distinct concepts although, of course, in common experience most people usually reside in a country of which they have citizenship”. 6 This chapter has been updated for the second edition of this book. Although the listing of relevant legislation is not comprehensive, the author has sought to include the most relevant pieces of current legislation up to and including Act No 74 of 2014, where the words “citizen”, “resident”, or “domicile” appear. This research was undertaken comprehensively for the first edition from 1997 to 2002 and involved considerable efforts by several research assistants, including Kylie Evans, Evelyn Ng, Mark Grasso, Frances Keogh, Larissa Halonkin and Kate O’Brien with support from the Australian Research Council. Research for the second edition was undertaken by Natalie Blok. The author thanks her for her contribution. As legislation is continually updated and amended, this list becomes dated as soon as new legislation is introduced or amended, but this book provides an adequate indication of the range of provisions, and the first edition was the

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significance.7 However, the last of Pincus J’s statements from the extract is dealt with first. It develops the more philosophical, theoretical questions associated with the “obvious notion” that citizenship should bring with it special rights and obligations. These philosophical, theoretical ideas are further developed when relevant to the specific issues raised in [5.60]. Analysis in this chapter focuses on legislation that discriminates upon the basis of citizenship or other forms of lesser membership. It also considers the legal differences between citizens and non-citizens. This attention to the legal difference can be criticised as a formal and narrow approach to the question of membership: One might reasonably object that administrative interpretations and practices may differ from and be more important than the rules and also that social and economic arrangements are more central in immigrants’ lives than legal rules of any sort.8

While this may be the case in some instances, and applies to all persons, not only immigrants, the legal framework and meaning of “citizenship” does impact upon the lives of citizens and non-citizens. Moreover, as Linda Bosniak argues: Questions concerning citizenship’s threshold and its substantive character are, in fact, deeply interwoven. In an era of widespread transnational migration, national political communities necessarily face questions of where to draw the boundary between insider and outsider. Significantly, however, these boundary questions are not confined to the territorial border; rather they reach deep into the heart of the national political community, and profoundly affect the nature of relations among those residing within.9

Another concern flowing from the criticism of narrow legalism is that all legal citizens do not experience formal citizenship equally. For instance, gender impacts upon practical experience of citizenship, further complicating an understanding of membership. So, too, does race, as the experience of Australian Aborigines10 and Papuan Australian citizens11 first comprehensive listing of its kind. An even more elaborate project would involve looking historically at all legislation that has ever discriminated on the basis of membership. For instance, the Aliens Act 1947 (Cth) was an important piece of legislation reflecting membership in Australia from its introduction until its repeal in 1984. For more historical analysis on some of the legislation, see Davidson, From Subject to Citizen: Australian Citizenship in the Twentieth Century (1997); Jordens, Alien to Citizen (1997) and Redefining Australians: Immigration, Citizenship and National Identity (1995), and Dutton, Strangers and Citizens: The Boundaries of Australian Citizenship (PhD thesis, University of Melbourne, 1998). See also Dutton, One of Us? A Century of Australian Citizenship (2002). 7 In a federal system like Australia, one could go even further and look at each State’s legislation to see more examples of legislation that discriminates upon the basis of citizenship. Jury service is one example discussed in Chapter 2 at [2.170]. 8 Carens, “Citizenship and Civil Society: What Rights for Residents?” in Hanson and Weil (eds), Dual Nationality, Social Rights and Federal Citizenship in the US and Europe (2002). 9 Bosniak, “Universal Citizenship and the Problem of Alienage” (2000) 94 Northwestern University Law Review 963 at 966. 10 See further discussion in Chapter 3 at [3.110] on Indigenous Australians’ experiences of citizenship and also in Chapter 6 at [6.170]. See generally, Chesterman and Galligan,

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testifies. The instances highlighting this problem are identified, such as service in the defence forces, social security and veterans’ entitlements. However, the emphasis of the chapter is upon the difference in the legislative treatment of citizens and non-citizens.

Rights and duties of citizens and non-citizens [5.20] International law is a framework within which an assessment can be made of legislation that discriminates upon the basis of citizenship and the “obvious notion” that citizenship should bring with it special rights and obligations.12 The International Convention for the Elimination of All Forms of Racial Discrimination13 and the Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they Live14 permit discrimination between nationals and non-nationals, but not in relation to fundamental human rights. The fundamental human rights contained in the International Covenant on Civil and Political Rights (ICCPR)15 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)16 are meant to apply to citizens and non-citizens equally. The ICESCR makes no reference at all to citizens so there is no distinction between the rights and privileges of “people” and “citizens”. Therefore, working

Citizenship without Rights: Aborigines and Australian Citizenship (1997) and, for a discussion about the relationship between formal citizenship and active citizenship, Lui and Blanchard, “Citizenship and Social Justice: Learning from Aboriginal Night Patrol in NSW” (2001) 5(5) Indigenous Law Bulletin 16. 11 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 the High Court of Australia was called upon to engage with the question of rights to citizenship as a result of changes in Australia’s territorial relationship with Papua New Guinea. Ultimately, the court upheld the removal of Australian citizenship from Papuans upon Papua New Guinea’s Independence in 1975. The case is discussed in Chapter 6 at [6.110]. 12 This was done in the North American context in Waite, “The United States Supreme Court’s Anomalous Approach to Discriminatory Alienage Classifications: International, Canadian and Domestic Law Compared” (1997) 11 Emory International Law Review 697. 13 International Convention for the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969). 14 GA Res, 144(XL), UN GAOR, 40th Sess, Supp 53 (1985) p 253 (adopted by general consensus). Article 2(1) states: “Nothing in this Declaration shall be interpreted as legitimizing the illegal entry into and presence in a State of any alien, nor shall any provision be interpreted as restricting the right of any State to promulgate laws and regulations concerning the entry of aliens and the terms and conditions of their stay or to establish differences between nationals and aliens. However, such laws and regulations shall not be incompatible with the international legal obligations of that State, including those in the field of human rights.” 15 International Covenant on Civil and Political Rights (ICCPR), opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976). 16 International Covenant on Economic, Social and Cultural Rights (ICESCR), opened for signature 16 December 1966, 999 UNTS 3.

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rights,17 social security rights,18 the right to enjoy the highest standard of physical and mental health19 and rights to education20 are some of the rights that extend to all people. Article 25 of the ICCPR is an exception to the general rule of equal application to all persons in that it applies to citizens only. It enshrines the right to take part in public affairs, the right to vote and the right of access to public service. Some of the other rights in the ICCPR that extend to citizens and non-citizens alike include: the right to self-determination,21 protection from torture or cruel, inhuman and degrading treatment or punishment,22 the right to liberty and security of person23 and liberty of movement and freedom to choose one’s own residence.24 Therefore, according to this framework, the only fundamental rights that should discriminate between citizens and non-citizens are the democratic rights, such as the right to vote, the right to stand for election to Parliament and the right to be employed in certain government positions.25 International law is also relevant to any future discussion about a bill of rights or a citizenship charter setting out a comprehensive statement of citizenship rights and responsibilities.26 However, international law is not binding upon individual sovereign states and often reflects a philosophy inconsistent with that of a state. As the Final Report on Women’s Equality and Nationality in International Law explains when setting out the concept of nationality: The treatment of aliens depends, among other things, on whether the state in question accepts that there is an “international minimum standard” of treatment which must be accorded to all aliens by the state, irrespective of how

17 ICESCR, Arts 7 and 8. 18 ICESCR, Art 9. 19 ICESCR, Art 12. 20 ICESCR, Art 13. 21 ICCPR, Art 1. 22 ICCPR, Art 7. 23 ICCPR, Art 9. 24 ICCPR, Art 12. 25 The question of discrimination upon the grounds of citizenship for public service appointment has been considered by the Canadian Courts: see the brief discussion in Chapter 1 at [1.100]. 26 See Australia, Parliament, Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks. The committee received a submission from the Australian Law Reform Commission (Submission No 43) which addressed these issues regarding the rights of citizens vis-à-vis non-citizens. The issue of a constitutional charter of rights is discussed in Chapter 7 at [7.50].

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it treats its own nationals, or takes the position that aliens may only insist on those rights which the state grants to its own nationals.27

Savitri Taylor writes about the “universalist morality” underpinning human rights law,28 treating all people as entitled to respect for their humanity and dignity. In Australia she argues that the morality underpinning human rights law is not implemented in dealing with asylum-seekers.29 In examining the philosophy or philosophies underpinning membership in Australia and the treatment of non-citizens, this chapter looks at various categories of membership.

Why discriminate on the basis of citizenship? [5.30] asks:

Professor Stephen Legomsky, in his essay “Why Citizenship?”,30

What is accomplished by having a citizenship concept at all? Why in other words, should the law affirmatively classify all earthlings as citizens or non-citizens and create rights, duties and disabilities that hinge on that distinction?31

In Legomsky’s view, “only after identifying the reasons for having a citizenship concept can one meaningfully consider who should receive it”.32 His question also underlies this chapter – why discriminate on the basis of citizenship? Legomsky assesses “reasons” to answer his question, including: political participation,33 immigration laws,34 other rights and disabilities,35 symbolism and community,36 allegiance,37 and the world order.38 Discussion on three of his reasons is of particular relevance to this chapter. In basing political participation on citizenship, government in essence determines an entitlement to full political participation. Thus, it regulates the formal, democratic framework for membership of the community. Political membership is relevant to many areas covered 27 Committee on Feminism and International Law, Final Report on Women’s Equality and Nationality in International Law, Report of the Sixty-Ninth Conference of the International Law Association (2000) p 260. 28 Taylor, “Do On-shore Asylum Seekers Have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy” (2000) 1 Melbourne Journal of International Law 71 at 84ff. 29 See Taylor, “Do On-shore Asylum Seekers Have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy” (2000) 1 Melbourne Journal of International Law 71. See further discussion below at [5.310]. 30 See Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279. 31 Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279 at 285. 32 Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279 at 285. 33 Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279 at 287. 34 Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279 at 288. 35 Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279 at 290. 36 Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279 at 291. 37 Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279 at 295. 38 Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279 at 297.

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below39 and the philosophy underpinning discrimination based on citizenship for voting is also discussed. So, too, immigration laws determine membership of the community in regulating persons’ travel in and out of the country and their rights to residence.40 Once again, this provides a practical mechanism for determining membership.41 The broader category of “other rights and disabilities” speaks to the broader nature of this chapter. As Legomsky notes, “citizenship is a useful way to draw what might otherwise be difficult lines”.42 In his view, however, it is too blunt an instrument as policy reasons for extending benefits to persons, for instance, may suggest permanent legal residence rather than citizenship, in some instances, and even to persons on a temporary residence basis in others. An examination of social security legislation in Australia, for instance, reveals these varied approaches in Australian law, supporting the analysis of citizenship as a blunt instrument in this area.

Value-adding citizenship: exclusivity? [5.40] Legislation that discriminates on the basis of citizenship supercharges the value of citizenship, particularly when exclusivity is so often associated with value. Citizenship as added value43 is an argument developed by Yale academic, Professor Peter Schuck.44 Called as an expert witness in the Canadian case of Lavoie v A-G of Canada and the Public Service Commission of Canada [1995] FC 623 (Lavoie),45 where discrimination on the basis of citizenship was examined,46 Schuck’s testimony addressed the value of citizenship to society. To some extent mirroring Legomsky, he 39 See the discussion on voting rights and responsibilities in Chapter 6 at [6.170]. 40 See below in this chapter the discussion on migration laws at [5.190]. 41 Dauvergne argues that migration law is more important than citizenship law for the question of who can become an Australian citizen, since the detailed criteria of migration laws which regulate permanent residency are the most significant barrier to full membership in the polity: see Dauvergne, “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23 at 40 n 59. 42 See Legomsky, “Why Citizenship?” (1994) 35 Virigina Journal of International Law 279 at 290. 43 Another way of describing this is to talk of the functionality of citizenship: see Schuck, “The Functionality of Citizenship” (1997) 110 Harvard Law Review 1814, which evaluates United States Citizenship according to issues of functionality – ie the value or function of citizenship as a legal status. 44 Schuck, Citizens, Strangers and In-betweens: Essays on Immigration and Citizenship (1998), in particular Chs 7 and 8: “The Devaluation of American Citizenship” and “The Re-evaluation of American Citizenship”. See also Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (1994). 45 In the Federal Court of Canada Trial Division (Court File Nos T-2479-90, T-1686-90). The trial went on appeal and the appeal decision is Lavoie v Canada [2000] 1 CF 3. That decision also went on appeal to the Supreme Court of Canada: see Lavoie v Canada [2002] SCC 23. 46 This case concerns the constitutionality of discrimination against non-citizens. As equality principles are safeguarded in the Canadian Constitution, the comparison has certain limitations with Australia due to the lack of such a principle being enshrined in the Australian Constitution. It is discussed further in Chapter 1 at [1.100].

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highlighted the political, emotional and motivational aspects of citizenship. Citizenship assists in defining the political community, the “citizenry” which have “undertaken mutual governance commitments to one another by virtue of their common national affiliation”.47 As Schuck elaborates elsewhere, political distinctions reflect certain assumptions that an: alien’s political socialization is too fragmentary and embryonic to be trusted in matters of public choice; that confining political participation of this kind to citizens carries an important symbolic message about the value and significance of full membership; and that exclusion of aliens from such participation encourages them to naturalize as soon as possible.48

This links with the two further aspects of citizenship: emotionally, citizenship can be a powerful tool – satisfying identification, community and altruism within the community.49 While citizenship should therefore be accessible to all, if it becomes too accessible, Schuck testified, it may cease “to denote any special relationship between one citizen and others” and so its capacity to bind citizens together “in a meaningful, emotionally satisfying community may diminish”.50 Finally, the motivational aspects are described as using the rights and duties “to acquire certain civic competences, virtues and behaviours that are functional, even essential in a free and democratic society”.51 Schuck identifies “four dangers lurking in a devalued citizenship”:52 one where there is little difference in rights between citizens and non-citizens – that is, a diminishing of the political process; a cultural devaluation where a “modest degree of assimilation into its culture”53 is necessary; and a “spiritual” devaluation where “if non-citizens can claim the same benefits that citizens enjoy without having to bear the obligations of full membership, they may acquire an ‘entitlement mentality’ that can erode

47 Schuck testimony (on file with author) at [9]. 48 Schuck, Citizens, Strangers and In-betweens: Essays on Immigration and Citizenship (1998) p 166. He follows this with the statement: “It is not obvious that these propositions are correct, nor does it follow that even if they were correct they would justify the kinds of restrictions being imposed. Modern tradition and political inertia, more than sound policy, account for their durability.” 49 In this Schuck notes the work of Schauer, “Community, Citizenship and the Search for National Identity” (1986) 84 Michigan Law Review 1504. 50 Schuck testimony (on file with author) at [13]. 51 Schuck testimony at [19]. 52 Schuck, Citizens, Strangers and In-betweens: Essays on Immigration and Citizenship (1998) p 171. 53 Schuck, Citizens, Strangers and In-betweens: Essays on Immigration and Citizenship (1998) p 171.

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those virtues”.54 The final danger, he points out, is the emotional devaluation of citizenship, an extension of the point made earlier in his expert evidence.55 In relation to the political concerns, Schuck acknowledges that: [i]t is not obvious that these propositions are correct, nor does it follow that even if they were correct they would justify the kinds of restrictions being imposed. Modern tradition and political inertia, more than sound policy, account for their durability.56

This framework is useful in assessing distinctions made between citizens and non-citizens in Australia. Does it help explain current distinctions, or does political inertia, more than sound policy, account for the current differentials that exist in legislation? This question is examined further as the legislation is described and analysed.

Rights of residency – normative inclusive views of membership [5.50] Toronto academic, Professor Joseph Carens, gave expert testimony in the Lavoie57 case to counter Schuck’s propositions. A long-time advocate of the rights of immigrants in liberal democratic societies,58 he views the move away from distinctions based upon citizenship in countries’ legislation as “an evolving understanding of the requirements of fundamental democratic ideals such as equality and due process”.59 Carens also challenges the assumptions underpinning Schuck’s arguments. Naturalisation does not necessarily ensure civic commitment or commitment to a country, for instance. Moreover, there are many reasons why people choose not to naturalise – such as the consequences upon their existing citizenship. In a multicultural society, these consequences must be ensured if respect for individual rights, needs and interests are taken into account. Carens also notes that in those countries where naturalisation is highest and encouraged most, differentials between citizens and non-citizens are less obvious. Arguably, therefore, “the more that immigrants, as permanent residents, feel themselves to be 54 Schuck, Citizens, Strangers and In-betweens: Essays on Immigration and Citizenship (1998) p 172. 55 Schuck, Citizens, Strangers and In-betweens: Essays on Immigration and Citizenship (1998) p 172. 56 Schuck, Citizens, Strangers and In-betweens: Essays on Immigration and Citizenship (1998) p 166. 57 Lavoie v A-G of Canada and the Public Service Commission of Canada [1995] FC 623. 58 See Carens, “Aliens and Citizens: The Case for Open Borders” (1987) 49 Review of Politics 251; “Migration and Morality: A Liberal Egalitarian Perspective” in Barry and Goodin (eds), Free Movement (1992) p 25; “Why Naturalization should be Easy: A Response to Noah Pickus” in Pinckus (ed), Immigration and Citizenship in the 21st Century (1998) p 141; and Carens’ book, Culture, Citizenship and Community: A Contextual Exploration of Justice as Evenhandedness (2000). 59 Carens’ testimony in Lavoie (on file with the author) at [15].

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part of the community, the more they feel welcomed, embraced and accepted, the more they want to join”.60 Philosophical objections to the distinctions between citizens and noncitizens have been further developed by Carens. He argues that: Liberal democratic justice, properly understood, greatly constrains the distinctions that can be made between citizens and non-citizen residents. The longer people stay in a society, the stronger their moral claims become, and, after a while they pass a threshold that entitles them to virtually the same legal status as citizens.61

In this argument, Carens is supported by constitutional scholar, Ruth Rubio-Marin, who argues that liberal norms of justice and democracy require a time threshold after which immigrants (legal or illegal) should either be granted equal rights with citizens, or awarded nationality automatically, without conditions or tests.62 These views are considered further when looking at current legislation, as set out below.

CURRENT REALITIES [5.60] The Commonwealth Acts that do discriminate in some way do not do so on a consistent basis.63 Some legislation still contains references to British subjects.64 This is because the formal status of an “Australian” until 1949 was “British subject” and Australians were both Australian citizens and British subjects up until 1987.65 When the term “British subject” was removed from the Australian Citizenship Act 1948 (Cth), there was no single, comprehensive amendment of all references to “British subject” to “Australian citizen” in other pieces of legislation. Instead, the

60 Carens’ testimony at [40]. See also Aleinikoff and Rumbaut, “Terms of Belonging: Are Models of Membership Self-fulfilling Prophecies?” (1998) 13 Georgetown Immigration Law Journal 1. 61 Carens, “Citizenship and Civil Society: What Rights for Residents?” in Hanson and Weil (eds), Reinventing Citizenship: Dual Citizenship, Social Rights and Federal Citizenship in Europe and the United States (forthcoming, draft on file with author). For a critique of liberalism, see also Dauvergne, “Amorality and Humanitarianism in Immigration Law” (1999) 37 Osgoode Hall Law Journal 597; Carens, “Aliens and Citizens: The Case for Open Borders” (1987) 49 The Review of Politics 251; and Galloway, “Liberalism, Globalism and Immigration” (1993) 18 Queens Law Journal 266. 62 Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000). 63 This is also the conclusion reached by Sangeetha Pillai in her recent article, “The Rights and Responsibilities of Australian Citizenship: A Legislative Analysis” (2014) 37(3) Melbourne University Law Review 1 at 5. 64 For instance, see ss 211 and 220 of the Copyright Act 1968 (Cth), listed below at [5.220]. 65 The term was removed by the Australian Citizenship Amendment Act 1984 (Cth), which came into effect on 1 May 1987.

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amendments were introduced by various amendment Acts.66 Some of the current Acts distinguish between residents and non-residents; others on the basis of Australian citizenship. A small number of Acts use other words, such as “domicile”.67 The variation in approach supports Legomsky’s description of citizenship as too blunt an instrument for drawing lines in the social sand. While the list of Acts is erratic, it can be broadly divided according to subject matter. They are as follows: • Acts that confer benefits; • Acts that encourage Australian investment; • Acts that grant immunity; • Acts concerned with extraterritoriality; • the Income Tax Acts; • Acts relating to jurisdiction; • Acts that impose liabilities or obligations or prohibition; • Acts that impose membership qualifications; • the Migration Act 1958 (Cth); • Acts that require residents to register in order to participate; • Acts that confer rights; • other Acts that explicitly do not discriminate; and, finally, • Acts that do not discriminate explicitly but impact upon membership and rights. These categories will be considered in turn.

Acts that confer benefits [5.70] A decision by the state to confer benefits may be based on a view of inclusion or membership. Citizenship status can be one way of determining who is worthy of sometimes-limited benefits. In a country where social security accounts for a substantial proportion of 66 For instance, the Statute Law (Miscellaneous Provisions) Act (Nos 1 and No 2) 1985 (Cth) amended references to “British subject” in various Acts. This process also continued after the enactment of the Australian Citizenship Act 2007 (Cth). See, for instance, the Navigation Act 2012 (Cth) and the Navigation (Consequential Amendments) Act 2012 (Cth), by which the Navigation Act 1912 (Cth) was repealed, thus removing the reference in that Act to “British subject” at s 128. 67 In private international law, “domicile” is defined as the headquarters or home each person is required to have in order to attract legal rights and duties: Whicker v Hume [1858] 11 ER 50. A person’s domicile is generally the country in which they reside with an intention to remain for an indefinite period. Domicile is of three types – of origin, of choice, and of dependency: see Sykes and Pryles, Australian Private International Law (3rd ed, 1991) pp 352, 354, 366. The concept of domicile is not uniform throughout the world. To a civil lawyer, it means habitual residence, but at common law it is regarded as the equivalent of a person’s permanent home: see North and Fawcett, Cheshire and North’s Private International Law (1992) p 139.

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Commonwealth Government outlays,68 inclusion in the welfare state is a useful means to understand notions of membership and citizenship.69 Access to welfare and related benefits is instructive because of the social values it represents generally, including the notion of social service and contribution by way of taxation before receiving benefits and, historically, the practical limitation of welfare access to Australian citizens.70 The relaxation of this requirement in some instances reflects a more inclusive approach to membership. The benefits conferred by the Acts discussed in this part are more diverse than social security. They include assistance to purchase a home, subsidisation of prescription medicines, and radio broadcasts to citizens overseas. They also include the States Grants Acts that specifically target newly-arrived residents to receive educational support in the primary and secondary educational system. Therefore, the term “benefits” is used broadly to speak of the value of citizenship in assistance or encouragement by government in an individual’s pursuits. So, for instance, the Australian Broadcasting Act 1983 (Cth) listed below seeks, through the national broadcaster, to transmit news and other material to countries outside Australia that will enable citizens living or travelling outside Australia to obtain information. Of course, this is an example where the legislation discriminates upon the basis of citizenship, but in practice, non-citizens too can benefit from the consequence of the legislation. The Acts identified in this category include the following: A New Tax System (Family Assistance) Act 1999 (Cth) • s 3: “resides in Australia” has the same meaning as in the Social Security Act 1991 (Cth); • s 8: extended meaning of “Australian resident” for the purposes of eligibility for child care benefit – hardship and special circumstances; • ss 21(1), 22: qualification for family tax benefit – resident (including special category visa holder); • s 34(1): qualification for family tax benefit – resident; 68 Commonwealth Government, Budget 2013-2014 cited it as almost 34%. 69 The origins of looking at matters such as welfare as a component of citizenship can be traced back to Marshall, who defined “citizenship” as a status bestowed on those who are full members of a community. In doing so, he expanded “citizenship” to include social rights, as well as political and civil rights: see Marshall, Citizenship and Social Class (1950), and discussions about citizenship as a normative notion above in Chapter 1 at [1.20]. Note also the discussion in Chapter 1 at [1.20] about the critique of this regarding gender. 70 Jordens argues that “[a] study of Australia’s social welfare legislation and its administration over time, reveals a great deal about the changes that have occurred in Australian culture and in conceptions of national identity and citizenship”: Jordens, “From Discrimination to Equality: Social Welfare Benefits and Non-British Migrants 1947–75” (Administration, Compliance and Governability Program, Working Paper No 14, 1993).

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• ss 42(1), 44(1), 45(1): qualification for child care benefit – resident (including special category visa-holder, or undertaking study with the financial assistance directly from the Commonwealth); • s 57G(1), (2): qualification for single income family supplement – resident (including special category visa-holder) or holder of visa determined by the Minister for the purpose of s 729(2)(f)(v) of the Social Security Act 1991 (Cth). A New Tax System (Family Assistance and Related Measures) Act 2000 (Cth) • Sch 6 cl 7: special rules relating to residence for childcare assistance scheme (transitional provisions). Australian Broadcasting Corporation Act 1983 (Cth) • s 6: purposes of ABC – to transmit news etc to countries outside Australia that will enable citizens living or travelling outside Australia to obtain information. Australian Hearing Services Act 1991 (Cth) • s 8: functions of Australian Hearing Services Authority include providing hearing services to “young Australians” – that is, citizens or residents under 21 years of age. Australian Participants in British Nuclear Tests (Treatment) Act 2006 (Cth) • s 7: nuclear test participants are eligible to be provided with treatment for malignant neoplasia if Australian residents. Child Support (Assessment) Act 1989 (Cth) • s 12: child support terminates if the child or parent ceases to be a citizen or resident, or resident of a reciprocating jurisdiction; • ss 24, 25, 25A: application for child support can only be made if child is a citizen or resident and the person from whom support is sought is a resident; • ss 29A and 29B: the person to whom child support is payable must be a resident, or a resident of a reciprocating jurisdiction; • s 83: a carer may only enter a child support agreement with a resident. Child Support (Registration and Collection) Act 1988 (Cth) • s 25C: payee must be a resident to be included in the child support register. Compensation (Japanese Internment) Act 2001 (Cth) • s 4: eligibility for compensation payment for a civilian claiming in their own right or for the partner of a deceased civilian if the person was domiciled in Australia immediately before the commencement of the internment. Defence Service Homes Act 1918 (Cth) • s 4: paras (e), (f), (g) of the definition of “eligible person” used the term “domiciled”.

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Development Allowance Authority Act 1992 (Cth) • ss 93I(4A), (4B), 93ZAA: for certain borrowings, borrower must be a resident and continue to be a resident. Disability Services Act 1986 (Cth) • s 21: restriction of rehabilitation programs to Australian citizens or residents whose continued presence is not subject to a time limitation. Export Market Development Grants Act 1997 (Cth) • ss 6, 7(1): eligibility for grants – includes residents; • s 25: eligible services – must be supplied to non-resident; • s 37(d), (da): an approved promotional purpose includes eligible services that are intended to be sold to non-residents and eligible tourism services that are sold or intended to be sold to residents but then sold to non-residents; • s 42: excluded expenses include expenses incurred when the applicant was not a resident of Australia; • s 85: grant no longer payable if recipient ceases to be a resident; • s 89: must be a resident to be specified as a nominated contact member. Fair Entitlements Guarantee Act 2012 (Cth) • s 10: eligibility for advance – citizen or permanent resident. Families, Community Services and Indigenous Affairs and Other Legislation (2006 Budget and Other Measures) Act 2006 (Cth) • s 1061K: qualification for Australian Government Disaster Recovery Payment – resident, prescribed visa-holder or non-resident citizen. Farm Household Support Act 2014 (Cth) • ss 8, 9: qualification for farm household allowance – residents (and presence in Australia). Great Barrier Reef Marine Park Act 1975 (Cth) • s 38HC: citizens and residents exempt from imprisonment for certain offences under the Act. Health Insurance Act 1973 (Cth) • s 3(1): definition of “eligible person” – must be a resident or an eligible overseas representative; the Act confers benefits on an eligible person (for example, s 10: Medicare) (note that “Australian resident” includes a person holding a temporary visa (in certain circumstances)); • ss 19AA, 19AB: Medicare not payable if doctor was not a citizen or resident by certain dates. Hearing Services Administration Act 1997 (Cth) • s 5: eligibility provisions – Australian citizen or permanent resident.

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Higher Education Funding Act 1988 (Cth) • s 41(3): exempt from full fees if resident. Note specific definition of “excepted student” in s 41(3) regarding New Zealand citizens and reference to the Australian Citizenship Act 2007 (Cth) s 24; • ss 98B, 98D: eligibility provisions – Australian citizen and resident (to apply for grant of higher education PELS loans); • ss 98V, 98X(3): eligibility provisions – Australian citizen and resident (to apply for bridging course loan); • s 101: citizen or resident may be “eligible client” of Open Learning Agency. Higher Education Support Act 2003 (Cth) • ss 90-1, 90-5: to be eligible for HECS-HELP assistance, must be a citizen or have a permanent humanitarian visa (and will be resident in Australia for the duration of the unit); • ss 104-1, 104-5: to be eligible for FEE-HELP assistance, must be a citizen or have a permanent humanitarian visa (and will be resident in Australia for the duration of the unit). Other permanent residents are eligible for FEE-HELP for bridging courses only; • ss 118-1, 118-5: to be eligible for OS-HELP assistance, must be a citizen or have a permanent humanitarian visa; • ss 126-1, 126-5: to be eligible for SA-HELP assistance, must be a citizen or be a resident permanent humanitarian visa-holder; • Sch 1A paras 43, 44: to be eligible for VET FEE-HELP assistance, must be a citizen or have a permanent humanitarian visa (and will be resident in Australia for the duration of the unit). International Shipping (Australian-Resident Seafarers) Grant Act 1995 (Cth) • s 10: only employers that are citizens may receive grant. [Note Act repealed by Shipping Grants Legislation Act 1996 (Cth) but still applies in certain circumstances.] Military Rehabilitation and Compensation Act 2004 (Cth) • s 221: eligibility for supplement depends on Australian residency. National Disability Insurance Scheme Act 2013 (Cth) • ss 18 – 21: a person must satisfy the “residence requirements” in order to participate in the scheme; • s 23: a person meets the residence requirements if they reside in Australia and they are an Australian citizen, the holder of a permanent visa or a special category visa-holder who is a protected special category visa-holder. Participants must also meet other residence requirements prescribed by the National Disability Insurance Scheme rules.

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[5.70]

National Health Act 1953 (Cth) • Pt VII (Pharmaceutical Benefits Scheme): PBS restricted to residents (see definitions of “dependant”, “concessional beneficiary”, “general patient” in s 84, which all refer to the definition of “Australian resident” in the Health Insurance Act 1973 (Cth). Paid Parental Leave Act 2010 (Cth) • Pt 2-3 Div 5: a person must be an Australian resident to claim the paid parental leave entitlement. Private Health Insurance Act 2007 (Cth) • ss 34-25, 37-5: a person’s “lifetime health cover base day” can depend on the date that they became a citizen. Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) • s 14: owner of a ship required to carry oil books can keep the books at their place of residence if they are an Australian resident. Seafarers Rehabilitation and Compensation Act 1992 (Cth) • s 9: eligibility for compensation etc for damage while travelling between place of residence and certain other places – place of residence must by definition be in Australia. Social Security Act 1991 (Cth) • ss 7, 796; Sch 1A para 133: definitions of “residence” and “resident” applicable under the Social Security Act 1991 (Cth) differ according to the payment in question and payment provisions; • what is consistent is that it is residence that entitles a person to payments under the Act; Australian citizenship is not a criterion for eligibility. Social Security (Administration) Act 1999 (Cth) • subdiv H, ss 29 – 32: residence requirements for claimants; • s 240B: restrictions on listing of dependants. Social Security (International Agreements) Act 1999 (Cth) • s 12A: particulars of United Kingdom agreement applying to Australian residents on or before 1 March 2000; • s 13: residence for overseas portability calculations; • Div 2 ss 15 – 22: Australian working life residence provisions; • Div 3 ss 23, 24: residence factor. Superannuation (Government Co-contribution for Low Income Earners) Act 2003 (Cth) • s 6: government co-contribution not payable to holders of temporary visas under Migration Act 1958 (Cth), unless New Zealand citizens.

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Superannuation Guarantee (Administration) Act 1992 (Cth) • s 8: income for work done outside Australia only included in individual superannuation guarantee calculation if employee is resident of Australia (unless employer non-resident, in which case excluded). Superannuation (Unclaimed Money and Lost Members) Act 1999 (Cth) • s 20H: only citizens and permanent residents can elect to have excess recovered superannuation paid into an Australian superannuation account. Veterans’ Entitlements Act 1986 (Cth) • s 5G: definition of “Australian Resident” – as Australian citizen; holder of permanent visa; holder of special category visa likely to permanently remain or holder of special purpose visa likely to permanently remain; certain Papua New Guineans resident in Papua New Guinea immediately before it became independent so long as they continue to reside in Papua New Guinea); • residence qualification for various payments: s 13(5) (pension); s 36(2) (age service pension); s 36H (be both Australian resident and in Australia); s 37(3) (invalidity service pension); s 37H (be both Australian resident and in Australia); s 38(4) (partner service pension); s 38H (be both Australian resident and in Australia); s 45M (income support supplement: be both Australian resident and in Australia); s 45TB (pension bonus: be both Australian resident and in Australia) s 58M (no portability if claim based on short-term residency); s 58N (transfer to a portable pension); s 63N (claim for essential medical equipment payment); s 79G (advance payment pension: be both Australian resident and in Australia); s 118Q (telephone allowance); ss 93M and 93T (pharmaceutical benefits card: Australian resident for a continuous period of at least 10 years); s 118V (seniors health card); s 118ZC (be both Australian resident and in Australia). Witness Protection Act 1994 (Cth) • s 10A: inclusion in witness protection program at request of International Criminal Court if the person is an Australian citizen or has been granted a visa for entry to Australia.

Acts that encourage Australian investment [5.80] This section identifies Acts using some form of membership to determine government support in the further development of an industry or profession. All of them rest on residence, not citizenship, once again according a more inclusive approach to membership. The Acts, however, do not necessarily define residence: Australia Council Act 2013 (Cth) • s 9(1): function of the Council is to support and foster excellence in “Australian arts practice” where this term is defined to mean the creation or performance, wholly or partly by “Australian artists” and

308

Australian Citizenship Law

[5.90]

the term “Australian Artist” means an artist who is an Australian citizen or an Australian resident (s 4). “Australian resident” is defined to mean a person who resides in Australia and holds a permanent visa (s 4). Australian Sports Anti-Doping Authority (Consequential and Transitional Provisions) Act 2006 (Cth) • s 6: objects of the Commission are to encourage participation by Australians in sport and improve sporting abilities of Australians. A reference to Australians in this section includes a reference to “persons who are ordinarily resident in Australia”. Australian Sports Commission Act 1989 (Cth) • ss 6 and 7: objects of Commission include to encourage residents to participate in sport. Broadcasting Services Act 1992 (Cth) • Div 2A: requires that subscription television broadcasting licensees ensure at least 10% of total program expenditure is spent on Australian (or New Zealand) programs; • s 103B: definition of “designated script development expenditure” means expenditure incurred in developing a screenplay or script for a program where the writer and producer are Australian (or New Zealand) citizens.

Acts that grant an immunity [5.90] This section actually identifies sections of Acts that exempt persons from their operation upon the basis of some form of membership or lack of membership. They either fall within the category of tax-related Acts (which speaks to notions of financial membership or responsibility) or they are related to foreign immunity issues. The latter show the relevance of international law upon the domestic system. These Acts include: A New Tax System (Goods and Services Tax) Act 1999 (Cth) • s 9-69 and Div 83: special rules relating to liability for GST on taxable supplies involving non-residents; • s 9-99 and Div 83: special rules relating to amounts for GST for supplies involving non-residents; • s 17-99 and Div 57: special rules relating to net amounts or adjustments involving non-residents; • s 23-99 and Div 57: special rules relating to who is required to be registered or who may be registered involving non-residents; • s 25-49 and Div 83: special rules relating to registration for supplies involving non-residents; • s 29-99 and Div 83: special rules relating to tax invoices and adjustment rates for supplies involving non-residents;

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• s 38-188: tooling used by non-residents to manufacture goods for export GST-free; • s 38-190 items 2, 4: supply of things other than goods or real property to non-residents who are outside Australia when supply occurs is GST-free; • s 38-355 item 3: domestic air travel by non-residents is GST-free; • s 38-570: telecommunication supplies by non-residents outside Australia and by Australian residents to non-residents outside Australia are GST free; • Div 83: provisions regarding non-residents making supplies connected with Australia. Consular Privileges and Immunities Act 1972 (Cth) • s 7: exemption from excise duty for consular employees who are non-residents and their families; • s 10: immunity from jurisdiction for consular employees who are Australian citizens or ordinarily resident in Australia. Customs Tariff Act 1995 (Cth) • Sch 4 item 24: concessional rate of customs duty on goods that are not to be sold or used for trade and where the collector is satisfied goods became the property of the importer under the will or intestacy of a deceased person when the importer was resident or established in Australia. Diplomatic Privileges and Immunities Act 1967 (Cth) • s 9: exemption from excise duty where purchaser is head of a mission or member of diplomatic staff and is not a citizen or resident; • s 11: immunity given to staff of missions who are citizens or residents. Environment Protection and Biodiversity Conservation Act 1999 (Cth) • Sch 1: provides for detention of suspected foreign offenders who are not Australian citizens or residents. Foreign States Immunities Act 1985 (Cth) • s 12: limitation of foreign state immunity in relation to proceedings concerning contracts of employment only extends to plaintiffs who are citizens or residents. Loans Securities Act 1919 (Cth) • s 6B: Commonwealth may exempt securities issued abroad from taxation, except where the security is the property of or the payment is being made to an Australian resident. Loans (Taxation Exemption) Act 1978 (Cth) • s 4(2): Commonwealth may exempt from taxation its repayment of loans issued abroad, except where the payment is being made to an Australian resident.

310

Australian Citizenship Law

[5.100]

Protection of Cultural Objects on Loan Act 2013 (Cth) • s 5: definition of “lender” includes that the person is not ordinarily resident in Australia. Lenders are exempt from certain restrictions imposed by the Act.

Acts concerned with extraterritoriality [5.100] The Acts listed below specifically discuss their extraterritorial operation. Extraterritoriality is the capacity of government to legislate beyond its borders. The external affairs power of the Constitution71 enables the government to make laws dealing with relations between Australia and other countries. These Acts emphasise a connection with Australia to show the necessary capacity of the government to legislate beyond its borders. That connection is through citizenship or residence. Some of the Acts only apply extraterritorially to Australian citizens and others include citizens and residents. There does not appear to be any clear reason why they differ. The Banking Act 1959 (Cth) is an example of how laws can apply to both residents and non-residents within the territory and beyond it. Regulations authorised under the Act have an interesting and confusing mix of resident/non-resident references. For instance, s 39(2) sets out that regulations can govern: the control or prohibition of the buying, borrowing, selling, lending or exchanging outside Australia of, or other dealing outside Australia with, Australian currency by or on behalf of any person, and of the buying, borrowing, selling, lending or exchanging in Australia, or other dealing in Australia with, Australian currency by or on behalf of a person who is not a resident.

The same power extends to acts done “by or on behalf of a person who is a resident”. In essence, the link with Australia is the Australian currency, and the scope of the legislation brings within its jurisdiction residents and non-residents alike. By implication or otherwise, all these Acts create jurisdiction within Australia to all persons unless otherwise distinguished (and identified elsewhere in this chapter), and so citizenship or membership extends to all persons physically within the country. They include: Air Navigation Act 1920 (Cth) • s 27: extraterritorial application to citizens and residents. Antarctic Marine Living Resources Conservation Act 1981 (Cth) • s 5: extraterritorial to citizens only (definition of “Australian national” in s 3). Antarctic Treaty Act 1960 (Cth) • s 4: extraterritorial to citizens. 71 Australian Constitution, s 51(xxix).

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Antarctic Treaty (Environment Protection) Act 1980 (Cth) • ss 3 and 4: extraterritorial to citizens, expeditions organised by citizens or residents, organisations either incorporated in Australia or unincorporated but with majority of Australian members, and members of crew on Australian property. Anti-Personnel Mines Convention Act 1998 (Cth) • s 7: extraterritorial to citizens and members of the defence forces. Australian Passports Act 2005 (Cth) • s 5: extraterritorial application of the Act applies regardless of citizenship. Australian Securities and Investments Commission Act 2001 (Cth) • s 12AC: extraterritorial to citizens and residents. Aviation Transport Security Act 2004 (Cth) • s 9: extraterritorial to Australian operator. Banking Act 1959 (Cth) • Banking Act 1959 (Cth)s 39(2): regulations can effect various restrictions on dealings in Australian and foreign currency, including extraterritorially – an interesting (and confusing) mix of resident/nonresident, etc. Chemical Weapons (Prohibition) Act 1994 (Cth) • s 5: extraterritorial to citizens. Competition and Consumer Act 2010 (Cth) • s 5: extraterritorial application of certain Parts of this Act to citizens, persons ordinarily resident in Australia and bodies incorporated or carrying on business in Australia. Comprehensive Nuclear Test-Ban Treaty Act 1998 (Cth) • s 9: extraterritorial to citizens by application of s 15.2 of the Criminal Code 1995 (Cth). Crimes (Biological Weapons) Act 1976 (Cth) • s 5: extraterritorial to citizens. Crimes (Aviation) Act 1991 (Cth) • s 12: Act applies outside Australia and irrespective of nationality or citizenship. Crimes (Hostages) Act 1989 (Cth) • s 5: Act applies outside Australia and irrespective of nationality or citizenship.

312

Australian Citizenship Law

[5.110]

Crimes (Overseas) Act 1964 (Cth) • s 3A: Act applies to Australian citizens or non-citizens who are permitted to travel to, enter and remain in Australia indefinitely in certain circumstances (definition of “Australian” in s 3); • s 3B: Governor-General to be satisfied before making regulations under the Act that it is appropriate to do so having regard to whether the Act applies to Australians. Environment Protection and Biodiversity Conservation Act 1999 (Cth) • ss 5 and 224: extraterritorial to citizens and permanent visa-holders “domiciled” in Australia. Fisheries Management Act 1991 (Cth) • ss 8 and 13: extraterritorial to citizens and people on boats whollyowned by a resident. Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) • s 38: extraterritorial to citizens. Privacy Act 1988 (Cth) • s 5B: extraterritorial application of the Act to practices of organisations where personal information about an Australian citizen or a person whose continued presence in Australia is not subject to a limitation as to time imposed by law, and the organisation is an Australian citizen or person whose continued presence in Australia is not subject to a limitation as to time imposed by law or a partnership, trust, body corporate or unincorporated association in Australia, or the organisation carries on business in Australia and the personal information was collected or held by the organisation in Australia. Radiocommunications Act 1992 (Cth) • s 16: extraterritorial only to “citizens ordinarily resident in Australia”. Torres Strait Fisheries Act 1984 (Cth) • s 54: extraterritorial to citizens and people on board a boat owned by a resident and foreign boats holding a licence under s 19 of the Act. Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth) • s 6: extraterritorial to citizens, residents and bodies incorporated in Australia.

Income Tax Acts [5.110] The Income Tax Assessment Act 1997 (Cth) contains provisions of the Income Tax Assessment Act 1936 (Cth) in a rewritten form. These Acts also cross-reference other Income Tax Acts, such as the Income Tax Rates Act 1986 (Cth). This section is not intended as a comprehensive review of

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those Acts.72 It is included as its own subsection because taxation is another expression of membership. The payment of tax sparks an immediate relationship between the individual and government, and a sense of entitlement to provisions and services provided by government with that money.73 The catchcry of the American Revolution of “no taxation without representation” is relevant to questions about the legitimacy of obliging non-citizens to pay tax.74 In Australia, the obligation to pay tax is not just placed upon citizens – the Act places the obligation on individuals and entities depending upon the amount of income an entity makes in a financial year.75 “Entities” are defined to include individuals, companies, mutual insurance associations, corporate limited partnerships and trustees of various entities. There is no specification on the basis of legal status, such as citizenship or permanent residence. In various provisions of the Act there are references to residents. The Income Tax Assessment Act 1936-1973 (Cth) defines “resident” or “resident of Australia” in s 6 as: (a) a person, other than a company, who resides in Australia and includes a person: (i) whose domicile is in Australia, unless the Commissioner is satisfied that his permanent place of abode is outside Australia; (ii) who has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied that the person’s usual place of abode is outside Australia and that the person does not intend to take up residence in Australia; or (iii) who is: (A) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or (B) an eligible employee for the purposes of the Superannuation Act 1976; or (C) the spouse, or a child under 16, of a person covered by sub-subparagraph (A) or (B); and (b) a company which is incorporated in Australia, or which, not being incorporated in Australia, carries on business in Australia, and has either its central management and control in Australia, or its voting power controlled by shareholders who are residents of Australia. 72 See Burgess, Cooper, Krever, Stewart and Vann, Income Taxation: Commentary & Materials (7th ed, 2012); Kobetsky, Brown, Fisher, Villios and Gillies, Income Tax: Text, Materials and Essential Cases (9th ed, 2015). 73 Note, however, that social security in Australia is not dependent upon a person’s contribution to the labour force. 74 Harper-Ho argues that “[s]ince the founding of the United States, opposition to taxation without representation has been a recurring theme in the battle for political rights”: “Noncitizen Voting Rights: The History, the Law and Current Prospects for Change” (2000) 28 Law and Inequality: A Journal of Theory and Practice 271 at 295. 75 Section 4-1 of the Income Tax Assessment Act 1997 (Cth).

314

Australian Citizenship Law

[5.120]

The Income Tax Acts contain a number of other definitions relevant to residency.76 However, the underlying principle across the Acts is consistent. It is that Australian residency determines an entity’s liability for tax purposes; tax payers are not distinguished on the basis of their citizenship.

Acts relating to jurisdiction [5.120] Australian law applies to citizens and non-citizens. The common law has been the source of much litigation concerning rights, and these are not only reserved for Australian citizens. In Re Bolton; Ex parte Beane (1987) 162 CLR 514, Bolton was an American citizen who had deserted the United States army, which then sought his return. He was detained by the Australian army and petitioned the High Court for writs of habeas corpus for his release. Brennan J declared: [T]he laws of this country secure the freedom of every lawful resident, whether citizen or alien, from arrest and surrender into the custody of foreign authorities on a mere executive warrant.77

Moreover, as Gibbs CJ explained in Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 181–182: It is unlikely, for example, that it was intended that the Parliament might provide that the rights and duties of aliens should be determined by a special law, different from that which applies to Australian citizens, in relation to such matters as contracts, torts, succession and criminal responsibility.

So the Criminal CodeSch, for instance, applies to citizens and non-citizens alike subject to specific statements to the contrary. The Acts listed below similarly have general application to both citizens and non-citizens, except in certain circumstances. This section identifies limitations on certain aspects of jurisdiction linked to some form of membership in the Australian community: Bankruptcy Act 1966 (Cth) • s 43: jurisdiction to make sequestration orders where a debtor has committed an act of bankruptcy; and if at the time when the act of bankruptcy was committed, the debtor: (i) was personally present or ordinarily resident in Australia; (ii) had a dwelling-house or place of business in Australia; (iii) was carrying on business in Australia, either personally or by means of an agent or manager; or 76 These definitions were listed in the first edition of this book but have not been comprehensively reviewed for the second edition. 77 Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 521. See further discussion below at [5.210]. Note also the reference to “lawful resident” as this is in contrast to the decision of the court in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 where the Executive was entitled to detain non-citizens. See also further discussion below at [5.190].

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(iv) was a member of a firm or partnership carrying on business in Australia by means of a partner or partners or of an agent or manager, the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor. • ss 55(2A) and 57(2A): Official Receiver must reject debtor’s petition unless points (i) to (iv) above are met; • ss 244(6) and 247(2): petition for administration of estate of deceased debtor can only be made where debtor was at the time of death – see points (i) to (iv) above. Criminal Code Act 1995 (Cth) • Sch Div 15 (Extended geographical jurisdiction): if an offence provides that this section applies, then the offence must involve an Australian citizen or a body corporate incorporated in Australia (theft, fraud, bribery and related offence); • Sch Div 16: Attorney General’s consent required for prosecution if alleged conduct occurs wholly in a foreign country and the person is not an Australian citizen or body corporate incorporated in Australia; • Sch s 71.16: Offences against United Nations and associated personnel only within jurisdiction if conduct occurred wholly or partly in Australia, or outside Australia and the person is an Australian citizen, or a stateless person resident in Australia, or the alleged offence is committed against an Australian citizen; • Sch s 71.21: Minister for Immigration may issue a certificate stating a person is or was an Australian citizen or a stateless resident at a particular time. Family Law Act 1975 (Cth) • s 39: jurisdiction in matrimonial causes established for citizen or persons “domiciled” in Australia or ordinarily resident in Australia and have been so resident for one year immediately preceding date of application for decree; • s 39A: jurisdiction in de facto financial causes established for citizen ordinarily resident or present in Australia when application made; • Pt VII s 69E: proceedings may be brought only if child is present in Australia on the relevant day, or if child is an Australian citizen or is ordinarily resident in Australia, or if child’s parent is an Australian citizen, or a party to the proceeding is an Australian citizen; • s 111C: Commonwealth personal protection measures jurisdiction applicable where child is present and habitually resident in Australia or, in certain circumstances, present in Australia; • s 111CK: Commonwealth property protection measures jurisdiction applicable where child is present and habitually resident in Australia or, in certain circumstances, present in Australia; • s 111CW: court proceedings dealing with who a child spends time with may hear from Australian resident parent.

316

Australian Citizenship Law

[5.130]

Inspector of Transport Security Act 2006 (Cth) • s 23: Inspector can be directed to inquire into a transport security matter only if action facilitating the occurrence of the matter was carried out by an Australian citizen, permanent resident, or a person who, at the time the direction is given, is in Australia. Intelligence Services Act 2001 (Cth) • ss 9, 13B: certain intelligence activities must be related to Australian citizens or permanent residents. Maritime Powers Act 2013 (Cth) • s 8: An Australian vessel is a vessel that is not registered under the law of a foreign country and is either wholly owned or solely operated by one or more residents of Australia, one or more Australian nationals, or one or more residents of Australia and one or more Australian nationals. The Act restricts the exercise of powers over foreign vessels. Service and Execution of Process Act 1992 (Cth) • s 9(2): service on a company may be effected by delivering personally to a resident director; • s 9(7): service on a registered body may be effected by delivering personally to two resident directors. Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth) • s 6(3): The Act applies to acts and omissions done outside Australia and the external Territories by Australian citizens, people ordinarily resident in Australia or an external Territory, or bodies incorporated in Australia or an external Territory.

Acts that impose liabilities or obligations or prohibition [5.130] This section identifies Acts that place some liability or obligation on persons specific to their membership status, or prohibit them from acting according to that status. It identifies those Acts according to citizenship and residence to determine the legal notion of membership and what it then reflects about the consequences for normative notions of membership of the Australian community. Upon citizens and residents [5.140] The list below identifies Acts that specifically place obligations upon citizens and residents. The Act of particular political consequence is the Commonwealth Electoral Act 1918 (Cth). It is the only Act below that places an obligation upon citizens and not on residents. The exception to this is s 93(1)(ii), which grants an entitlement to enrolment for voting to: persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984: (A) on the roll for a Division; or

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(B) on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 (Cth) or the Northern Territory Representation Act 1922 (Cth).78

This exception highlights the evolution of membership of the Australian community, given the changed importance of the status of British subject to Australian citizenship law.79 Other Acts of consequence in this subsection concern criminal responsibility. Many of the relevant provisions relate to crimes committed overseas. In the absence of a territorial link to the crime, the link to Australia is by virtue of citizenship or Australian residence. The Defence Act 1903 (Cth) also contains significant provisions. It places an obligation on individuals who have resided in Australia for more than six months to be conscripted if a government so chooses.80 The range of Acts identified for this subsection include: A New Tax System (Medicare Levy Surcharge – Fringe Benefits) Act 1999 (Cth) • s 10: Medicare levy surcharge imposed on residents (but not residents of Norfolk Island). Antarctic Treaty (Environment Protection) Act 1980 (Cth) • s 19B: prohibition against mining directed to citizens (definition of “Australian national” in s 3). Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) • ss 6(6), 102: certain prohibitions apply only to transactions in which one of the parties was an Australian resident. Civil Aviation Act 1988 (Cth) • s 22: pilots of aircraft owned by Australian residents must comply with foreign laws when flying overseas. Commonwealth Electoral Act 1918 (Cth) • s 101: compulsory enrolment and transfer for every person who is entitled to be enrolled for any subdivision; • s 93: entitlement to enrolment and to vote – Australian citizens and British subjects within the meaning of the Australian Citizenship Act 1948 (Cth) whose names were, immediately before 26 January 1984: (A) on the roll for a Division; or (B) on a roll kept for the purposes of the 78 Commonwealth Electoral Act 1918 (Cth) s 93. 79 See further discussion in Chapter 4 at [4.140] about the place of British subjects under the Australian Citizenship Act 1984 (Cth). See also Paulding and Australian Electoral Commission [2000] AATA 202 (http://www.austlii.edu.au) regarding the strict application of s 93 where the applicant was a British subject and had been enrolled as an elector prior to 1983, but was removed from the roll when she changed address. She was not enrolled as at 26 January 1984 and was therefore ineligible to vote. 80 See further discussion of this issue in Chapter 1 at [1.100].

318

Australian Citizenship Law

[5.140]

Australian Capital Territory Representation (House of Representatives) Act 1973 (Cth) or the Northern Territory Representation Act 1922 (Cth). Corporations Act 2001 (Cth) • s 601CM(2)(5): resident members of registered foreign companies must register the members’ shares if requested and must not discontinue the register without the members’ consent; • s 661CV: foreign companies must notify the Commission of any resident directors and their powers and changes must be reported; • s 1200J: the dispute resolution condition applies to a person who is or has been a recognised offeror if someone who holds securities the subject of the recognised shares resides in this jurisdiction. Crimes (Aviation) Act 1991 (Cth) • s 13: liability for hijacking in-flight aircraft outside Australia – citizens; • s 14: liability for other acts of violence – citizens; • s 25: liability for committing acts endangering safety unlawful outside Australia – person must be an Australian citizen; • s 26: liability for acts of violence in certain airports and for destruction of aircraft – if aircraft in Australia or act committed by an Australian citizen. Crimes (Currency) Act 1981 (Cth) • s 23: offence against Act only if committed in Australia or occurred on ship or aircraft owned by resident(s). Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) • ss 6 and 7: liability for incursions into foreign states for purpose of engaging in hostile activities – citizen, resident or present in Australia for a year prior to incursion for purpose connected to the Act. Crimes (Hostages) Act 1989 (Cth) • s 8: liability for act of hostage taking – citizen. Crimes at Sea Act 1979 (Cth) • s 8: State/Territory criminal laws applicable in relation to acts committed on or from foreign ship if person is Australian citizen and domiciled in Australia (applicable for acts and omissions that took place before the Act’s repeal by Crimes at Sea Act 2000 (Cth)); • s 11: criminal laws applicable in offshore areas in relation to Australian citizens or residents (applicable for acts and omissions that took place before the Act’s repeal by Crimes at Sea Act 2000 (Cth)). Crimes at Sea Act 2000 (Cth) • s 6: criminal law of the Jervis Bay Territory applies at sea to a criminal act of an Australian citizen.

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Criminal Code Act 1995 (Cth) • Sch Div 15: (Extended geographical jurisdiction) – if an offence provides that this section applies, then the offence must involve an Australian citizen or a body corporate incorporated in Australia (theft, fraud, bribery and related offence); • Sch Div 16: Attorney General’s consent required for prosecution if alleged conduct occurs wholly in a foreign country and the person is not an Australian citizen or body corporate incorporated in Australia; • Sch s 70.5 (bribery of foreign public officials): Attorney General’s consent required to prosecute someone who is a resident but not a citizen; • Sch ss 272.6, 273.2: A person can be charged with a child pornography or child sex offence that wholly occurred outside Australia if they are a citizen or resident of Australia or a body corporate incorporated, or carrying out activities principally in Australia. Customs Act 1901 (Cth) • s 175(3A): offence for owner or master of Australian ship or Australian aircraft to allow goods to be transferred between that ship or aircraft and a coastal ship or coastal aircraft (Australian ship and aircraft defined in s 4). Defence Act 1903 (Cth) • s 59: persons liable to be called upon to serve in time of war – residents (of at least six months). Environment Protection and Biodiversity Conservation Act 1999 (Cth) • s 354A: sentence of imprisonment not to be imposed for certain offences if not Australian citizen or holder of a permanent visa and domiciled in Australia. Farm Household Support Act 2014 (Cth) • ss 42, 43: newly arrived residents are subject to a waiting period before receiving allowance. Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) • s 7: Attorney General can prohibit citizen or resident from giving evidence in relation to a document that is in Australia in a foreign proceeding; • ss 10 and 11: Attorney General can order plaintiff in foreign anti-trust proceeding to repay damages award and costs to defendant where defendant is an Australian citizen not ordinarily resident overseas; • s 13: Attorney General can prohibit citizen or resident from giving effect to foreign court order. International Organisations (Privileges and Immunities) Act 1963 (Cth) • s 6: citizen who is, or has been, a representative or a member of staff of a representative of a country other than Australia, or an international or overseas organisation to which the Act applies is not entitled to any

320

Australian Citizenship Law

[5.140]

privileges or immunities under s 6, except in respect of acts and things done in his or her capacity as such a representative or member. Petroleum (Timor Sea Treaty) Act 2003 (Cth) • Sch 1 Annex B of Timor Sea Treaty incorporated by the Act: certain roles and appointments can only be undertaken or made by a person who is not a citizen of Australia or East Timor. Shipping Registration Act 1981 (Cth) • s 12: all ships majority-owned by Australian citizens must be registered. Space Activities Act 1998 (Cth) • s 8: definition of “responsible party” where space object launched overseas only covers citizens; • s 12: (offence provision) – citizen who carries on certain space activities outside Australia must be covered by an approval; • ss 66 and 70: liability for damage caused by return of space object only imposed on citizens and non-citizens differently. Tertiary Education Quality and Standards Agency Act 2011 (Cth) • s 5: Act imposes obligations in relation to Australian higher education awards. Definition of “Australian higher education award” – a higher education award offered or conferred (whether solely or jointly) by an Australian corporation, a corporation established by or under a law of the Commonwealth or a Territory, a person (other than an individual) established in Australia who conducts activities in a Territory, or an Australian resident who conducts activities in a Territory. Timor Gap Treaty (Transitional Arrangements Act) 2000 (Cth) • s 6A: criminal laws applicable in the particular area covered do not apply to an act done by a national of East Timor unless they are also a national of Australia or a permanent resident of East Timor. Tobacco Advertising Prohibition Act 1992 (Cth) • s 15A: tobacco advertisements not to be published electronically if Australian link – established by the individual who publishes the advertisement being an Australian citizen, an individual whose continued presence in Australia is not subject to a limitation as to time imposed by law, or a person physically present in Australia. Torres Strait Fisheries Act 1984 (Cth) • s 13: Minister may seek views of members of Joint Advisory Council who are traditional inhabitants and Australian citizens; • s 16: Minister may regulate fishing by boat owned by Australian resident (see definition of “Australian boat” in s 3).

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War Crimes Act 1945 (Cth) • s 11: only citizen or resident may be prosecuted. Upon residents on behalf of non-residents [5.150] This section identifies Acts that place a liability or obligation upon a resident on behalf of a non-resident. This represents a linkage between “members” and “non-members”. The bulk of these are taxrelated Acts. They include: A New Tax System (Goods and Services Tax) Act 1999 (Cth) • s 9-69 and Div 57: special rules relating to liability for GST on taxable supplies involving non-residents; • s 13-99 and Div 57: special rules relating to taxable importations involving non-residents; • s 15-99 and Div 57: special rules relating to creditable importations involving non-residents; • s 17-99 and Div 57: special rules relating to net amounts or adjustments involving non-residents; • s 23-99 and Div 57: special rules relating to who is required to be registered or who may be registered involving non-residents; • s 25-99 and Div 57: special rules relating to cancellation of registration involving non-residents; • s 27-99 and Div 57: special rules relating to tax periods involving non-residents; • s 31-99 and Div 57: special rules relating to GST returns involving non-residents; • Div 57: resident agents acting for non-residents responsible for the GST consequences of what the non-residents do through their resident agents. Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) • s 69B: offence to import chemicals on behalf of non-resident. Agricultural and Veterinary Chemicals Code [Sch 1 of the Agricultural and Veterinary Chemicals Code Act 1994 (Cth)] • s 152: resident agents liable for acts of non-resident principals. Fringe Benefits Tax Assessment Act 1986 (Cth) • s 100: resident who is authorised by non-resident to receive and control money on the non-resident’s behalf is liable to pay tax owed by non-resident. Pay-roll Tax Assessment Act 1941 (Cth) • s 67: resident who is authorised by non-resident to receive and control money on the non-resident’s behalf is liable to pay tax owed by non-resident.

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Petroleum Resource Rent Tax Assessment Act 1987 (Cth) • s 92: resident who is authorised by non-resident to receive and control money on the non-resident’s behalf is liable to pay tax owed by non-resident. Renewable Energy (Electricity) Act 2000 (Cth) • s 85: obligation of agent winding up business for non-resident principal. Upon non-citizens [5.160] The Acts identified in this subsection relate to liabilities or obligations placed specifically upon non-citizens. These Acts are in addition to other Acts which do not discriminate according to a membership status and which would apply to any individual within Australia by virtue of being present in the territory regardless of their citizenship status. They include: Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth) • s 12: dealing in drugs outside Australia – a person may be charged with an offence only if the person is present in Australia and if the person is not an Australian citizen, if no steps have been taken by the foreign country. Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth) • ss 8, 13: detention provisions for certain environmental offences apply only to non-citizens. Immigration (Education) Charge Act 1992 (Cth) • s 5: English Education Charge is imposed in respect of a visa application by a non-citizen (but permanent residents are exempt – s 7). Quarantine Act 1908 (Cth) • s 35AA: medical examination of non-citizens for possible pulmonary tuberculosis. Torres Strait Fisheries Act 1984 (Cth) • s 14: Minister may require non-citizen/non-traditional inhabitants to furnish information regarding catches. Upon non-residents [5.170] Finally, this subsection identifies Acts that impose some specific obligation upon non-residents. This then illustrates to a small degree the links between individuals beyond borders. For example, the Foreign Acquisitions and Takeovers Act 1975 (Cth) is a specific response to the international economy and the Trade Marks Act 1995 (Cth) shows the international market at work. Some of the issues this raises are discussed further in Chapter 7 at [7.110] which examines citizenship and globalisation. The Foreign Acquisitions and Takeovers Act 1975 (Cth) uses the terminology “ordinarily resident in Australia”. This phrase was also used

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in the predecessor to the latter Act, the Companies (Foreign Takeovers) Act 1972 (Cth). In both Acts it was originally left undefined. The following definition was inserted into the Foreign Acquisitions and Takeovers Act 1975 (Cth): 5A Ordinarily resident non-citizens (1) For the purposes of this Act, a natural person who is not an Australian citizen is ordinarily resident in Australia at a particular time if and only if: (a) the person has actually been in Australia during 200 or more days in the period of 12 months immediately preceding that time; and (b) at that time, either: (i) the person is in Australia and the person’s continued presence in Australia is not subject to any limitation as to time imposed by law; or (ii) the person is not in Australia but, immediately before the person’s most recent departure from Australia, the person’s continued presence in Australia was not subject to any limitation as to time imposed by law. (2) For the purposes of paragraph (1)(b), but without otherwise limiting the generality of that paragraph, a person’s continued presence in Australia is subject to a limitation as to time imposed by law if the person is an unlawful non-citizen within the meaning of the Migration Act 1958 (Cth).

There is nothing in any of the Hansards to explain the choice of the words “ordinarily resident”, nor the particulars of the subsequent definition in s 5A. This highlights the different legislative conceptions of when someone is to be considered an Australian. The Social Security Act 1991 (Cth), for example, has a newly-arrived residents’ waiting period of two years, the justification for this being that people should contribute to Australia (by paying tax) before they deserve its benefits. In the Foreign Acquisitions and Takeovers Act 1975 (Cth), however, a person is an Australian investor in less than one year. Foreign Acquisitions and Takeovers Act 1975 (Cth): The whole Act is directed at people not ordinarily resident in Australia. • ss 19 – 21: limited definitions of “foreign person”. Trade Marks Act 1995 (Cth) • s 222: non-resident may be ordered to provide security for costs.

Acts that impose membership qualifications [5.180] This subsection, like that on benefits, illustrates a conscious81 legislative decision to discriminate upon the basis of membership status for the purpose of qualifying to do something in Australia. The areas covered by the Acts range from political membership, such as entitlement 81 This term is used with some hesitation as often there is no direct reference in the Hansard discussion of the legislation on the matter of citizenship or membership. “Conscious” is used here to represent an explicit reference in the legislation to some membership requirement.

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to vote, membership of the Australian Parliament and entitlement to work in the public service, to being a member of a body set up under legislation. In economic, financial terms, there are further restrictions on working in certain fields upon the basis of membership status, or holding licences to run media businesses. Politically, the disqualification from membership of the Commonwealth Parliament of people who are dual citizens speaks to issues of citizenship and allegiance. In addition, the two Acts listed below specifically referring to non-residents are the Australian Centre for International Agricultural Research Act 1982 (Cth), which specifies that a “substantial” number of the members of the Policy Advisory Council must be residents of other countries, and the Protection of Movable Cultural Heritage Act 1986 (Cth), which states that the register of expert examiners may include non-residents. These sections may be there to benefit Australia in obtaining the expertise of those outside the country. However, all of the other Acts specify citizenship or resident status. The list below is quite extensive: Air Navigation Act 1920 (Cth) • s 11A: foreign shareholdings in Australian airlines to be capped at 49%. Airports Act 1996 (Cth) • s 59: majority of directors must be Australian citizens or residents. Australian Capital Territory (Self-Government) Act 1988 (Cth) • s 67: qualifications of members of Parliament – citizens (in combination with the Electoral Act 1992 (ACT)). Australian Centre for International Agricultural Research Act 1982 (Cth) • s 19: substantial number of the members of the Policy Advisory Council must be residents of other countries. Australian Charities and Not-for-profits Commission Act 2012 (Cth) • s 140-5(2): an individual is eligible to be appointed as a general member of the Advisory Board only if the person is ordinarily resident in Australia. Australian Civilian Corps Act 2011 (Cth) • s 19(4)(b): the engagement of an Australian Civilian Corps employee may be made subject to conditions including “citizenship”. Australian Federal Police Act 1979 (Cth) • s 24(2), (4), (5): engagement of AFP employees may be subject to conditions, including citizenship, and the Commissioner must not engage as an AFP employee a person who is not an Australian citizen unless the Commissioner considers it appropriate to do so, although this does not apply to engagement of persons overseas to perform duties.

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Australian National Preventive Health Agency Act 2010 (Cth) • s 31: a person is eligible to be appointed as a member of the Advisory Council only if the person is ordinarily resident in Australia. Australian Sports Anti-Doping Authority 2006 (Cth) • ss 27 and 33: members of Advisory Group and Anti-Doping Rule Violation Panel must be “ordinarily resident in Australia”. Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 (Cth) • ss 10, 15: eligibility for transitional general licence for vessel used to engage in coastal trading – seafarers must be (or will be) Australian citizens, hold permanent visa or other temporary visa that does not prohibit work on the vessel. Commonwealth Constitution 1901 • s 34: qualifications of members of Parliament – resident for at least three years; • s 44(i): citizens of foreign countries disqualified from membership of Parliament. Commonwealth Electoral Act 1918 (Cth) • s 93: only citizens and British subjects entitled to vote; • ss 94, 94A, 95: enrolled voters residing outside Australia; • s 99A: provisional claim for enrolment by Australian citizenship applicants; • s 99B: provisional enrolment by Australian citizenship applicants; • s 163: qualifications of members of Parliament – citizens; • s 193: people who can be authorised witnesses outside Australia include ministers of religion or medical practitioners resident in a State or Territory or a Commonwealth country. Commonwealth Serum Laboratories Act 1961 (Cth) • s 19C: The Articles of Association of the Commonwealth Serum Laboratories must include provisions that at least two-thirds of the directors are Australian citizens, that the presiding director is an Australian citizen, together with restrictions on foreign (that is, non-citizen/non-resident) ownership. Companies Act 1981 (Cth) • ss 18(4), 20(5), 30D: Commission may refuse to register as an auditor/liquidator a person who is not resident in Australia; • s 219: public companies – at least two directors must be residents; proprietary companies – at least one director must be resident; • s 236: company secretary must reside in the Territory.

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Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth) • s 324BB(5): one member of audit firm must be ordinarily resident in Australia. Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) • s 399-75(1): requires that audits be done by firm where one member is a registered company auditor who is ordinarily resident in Australia. Corporations Act 2001 (Cth) • s 201A: public companies – at least two directors must be residents; proprietary companies – at least one director must be resident; • s 204A: public company – at least one resident secretary; proprietary company – if secretary, must ordinarily reside in Australia; • ss 324BB(5), 1215: at least one member of a firm of auditors must be a resident; • s 601CE: foreign company application for registration must include directors who are resident in Australia; • s 601CG: foreign company’s resident agent is taken be a local agent; • ss 1280, 1282, 1292: ASIC may refuse to register as an auditor/ liquidator a person who is not resident in Australia or cancel registration if auditor/liquidator ceases to be a resident. Defence Trade Controls Act 2012 (Cth) • s 27: in deciding whether to approve a body corporate as a member of the Australian Community, the Minister must have regard to whether the Manager is an Australian citizen. Education Services for Overseas Students Act 2000 (Cth) • s 9AB: approved provider must be an Australian resident; • s 16: registered provider must be an Australian resident. Health Insurance Act 1973 (Cth) • ss 3D, 3DB, 3DC: recognition by medical practitioner as a specialist requires (unless the Minister determines otherwise under s 3E) that the practitioner be domiciled in Australia. Insurance Act 1973 (Cth) • s 49G: actuaries appointed must be residents; • ss 52(5), 62A and 79(5): APRA/Commissioner investigation of insurance business – inspector must be a resident; • s 118: body corporate carrying on insurance business under the Act must be represented by agent who is an Australian resident (or a company incorporated in Australia). Marriage Act 1961 (Cth) • s 29: qualifications for registration as minister of religion – resident.

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Medibank Private Sale Act 2006 (Cth) • Sch 1 para 47: Majority of directors of Medibank Private and holding companies must be Australian citizens. Migration Act 1958 (Cth) • s 41: regulations may provide that a visa, or visas of a specified class, are subject to a condition imposing restrictions about the work that may be done in Australia; • s 294: qualification to be migration agent – citizen or resident. Norfolk Island Act 1979 (Cth) • s 38: qualification for election to Legislative Assembly – citizen. Northern Territory (Self-Government) Act 1978 (Cth) • s 20: qualifications of members of Parliament – must be a citizen and have been resident in Australia for at least six months, and three months in the Northern Territory; • s 21: disqualification for membership of Legislative Assembly if member ceases to be an Australian citizen. Parliamentary Service Act 1999 (Cth) • s 22: The engagement of a Parliamentary Service employee may be made subject to conditions notified to the employee, including conditions dealing with citizenship. Patents Act 1990 (Cth) • s 198: qualifications of registered patent attorneys – resident. Protection of Movable Cultural Heritage Act 1986 (Cth) • s 22: register of expert examiners may include non-residents. Public Order (Protection of Persons and Property) Act 1971 (Cth) • s 4: protected person cannot be citizen or resident. Public Service Act 1999 (Cth) • s 22(6): engagement of an employee may be made subject to conditions including citizenship; • s 22(8): Agency Head must not employ a non-citizen (unless appropriate). Qantas Sale Act 1992 (Cth) • s 7(i) and (j): Qantas’ articles of association require that at least two-thirds of the directors are Australian citizens and the presiding director at meetings is an Australian citizen. Radiocommunications Act 1992 (Cth) • s 69A: spectrum licensee must be an Australian resident or the income, profits or gains are to be attributable to a permanent establishment in Australia through which the licensee carries on business.

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Referendum (Machinery Provisions) Act 1984 (Cth) • s 3: definition of “authorised witness” includes citizens; • s 38: Australian citizen applicants may apply for provisional enrolment. Superannuation Industry (Supervision) Act 1993 (Cth) • s 128A: must be an Australian resident to be registered as a self-managed superannuation fund auditor. Telstra Corporation Act 1991 (Cth) • Pt 2A: restriction on involvement in and ownership of Telstra by non-citizens and non-residents. Venture Capital Act 2002 (Cth) • s 9-5: Registration requirements of Australian Forces Overseas Fund (AFOF) include that all the general partners are Australian residents. Veterans’ Entitlements Act 1986 (Cth) • s 52ZZZWD: trustee of a trust must be an Australian resident.

Migration Act 1958 (Cth) [5.190] A critical legal consequence of citizenship, which currently distinguishes citizens from non-citizens, is the ability to enter and remain in Australia. The Migration Act 1958 (Cth) governs the “entry into and presence in Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons”.82 This Act is specifically directed to regulating non-citizens, as opposed to conferring rights or duties upon citizens. Catherine Dauvergne argues that migration law is more important than citizenship law in determining who can become an Australian citizen since the detailed criteria of migration laws which regulate permanent residency are the most significant barrier to full membership in the polity.83 When the Act was reformed in 1994, an objects clause was included. This clause states that the “Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”.84 All non-citizens have to obtain a visa in order to travel to Australia.85 The entitlement to a visa is contained in the Act and the Migration Regulations 1994 (Cth). Therefore, whenever non-citizens, even permanent residents, leave the country, they do not have an absolute right of re-entry. Permanent residents need a Return (Residence) (Class BB) visa if their visa does not 82 See the opening words of the Act. 83 Dauvergne, “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23 at 40 n 59. 84 Migration Act 1958 (Cth) s 4(1). The authority to regulate non-citizens comes from the Commonwealth’s power to legislate with respect to aliens and naturalisation in s 51(xix) of the Constitution. 85 Migration Act 1958 (Cth) s 42.

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entitle them to re-enter Australia after their departure. Even with that Return (Residence) visa, there are grounds upon which the Minister can deny re-entry to those persons.86 The entire Migration Act 1958 (Cth) revolves, therefore, around the distinction between citizens and non-citizens. The whole purpose of the Act is to determine membership of the community at any one time by regulating exactly who is physically present within the territory of Australia. Mobility in and out of Australia is determined by one’s membership status.87 But does this mean that a consequence of citizenship is that Australian citizens have an absolute right of re-entry? The High Court has stated that “[t]he right of an Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or ‘clearance’ from the Executive.”88 Does this necessarily mean that the Australian Government cannot introduce a law that would require an Australian citizen to gain some form of clearance in order to enter? Is it something constitutionally protected? It certainly is not explicitly protected in the Constitution. The Migration Reform Act 1992 (Cth) introduced into the Migration Act 1958 (Cth) the requirement for all persons to be “immigration cleared” in order to enter Australia. If a person is a citizen, he or she needs to show a clearance officer his or her Australian passport or prescribed other evidence of the person’s identity or Australian citizenship.89 This may imply that once a person’s citizenship is established, he or she has a right of entry under current law. At the other end of the mobility spectrum is the right to remain in Australia. The status of permanent residence entitles a person to remain permanently in Australia. But that right is subject to other provisions in the Migration Act 1958 (Cth). Most poignantly, the deportation provisions enable government to deport permanent residents in certain circumstances.90 This power has given rise to significant High Court cases

86 Migration Act 1958 (Cth) Pt 2 Div 3 (“Visas for Non-citizens”) subdiv D (“Visas may be cancelled on certain grounds”). Note, however, that there are certain procedures that must be followed, as set out in subdiv E (“Procedure for cancelling visas under Subdivision D in or outside of Australia”). 87 The power of the Executive to regulate membership of the community was recognised by the High Court in one its earliest decisions: Robtelmes v Brenan (1906) 4 CLR 395. See further, discussion in Chapter 6 at [6.50]. 88 Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 469. 89 Migration Act 1958 (Cth) s 166. The Regulations have not prescribed other evidence for Australian citizens to provide for s 166(1)(a)(i). 90 Migration Act 1958 (Cth) ss 200 – 206. Under s 166(4), a person is taken to have complied with the evidence of identity requirements of s 166 if an immigration officer knows or reasonably believes that the person is an Australian citizen. The Department of Immigration and Border Protection’s Procedures Advice Manual 3 – Migration Act on “Immigration clearance at airports and seaports” (p 21) states that “although the onus is

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centring on citizenship as people have defended deportation orders, trying to rely upon their British subject status.91 But do citizens have an absolute right to remain in Australia? The Extradition Act 1988 (Cth) enables proceedings to determine whether a person is to be extradited, without determining the guilt or innocence of that person.92 Section 6 defines an extraditable person as a person (in respect of which warrants of arrest are in force or a conviction has been made for certain offences). This clearly includes citizens of Australia, and is not limited to them.93 There are other ways citizens can be removed from Australia. In DJL v Central Authority (2000) 201 CLR 226, the applicant sought to rely on Air Caledonie International v Commonwealth (1988) 165 CLR 462 (Air Caledonie) to establish a right of citizenship, protecting her from the compulsory return overseas of her Australian citizen child under the Family Law Act 1975 (Cth). The Act gives effect to the Hague Convention on the Civil Aspects of International Child Abduction. In rejecting this argument, Kirby J stated: Citizenship involves duties and obligations lawfully imposed in addition to the ordinary entitlement to reside in, depart from and return to Australia. In Air Caledonie, the court made it clear that the right of a citizen to re-enter the country was one which was enjoyed “under the law”. At least where the law which provides for the removal of a citizen is of the kind found in the regulations, in turn giving effect to international law, no question of constitutional invalidity arises.94

Nevertheless, beyond these Acts which provide for the removal of citizens, does the Australian Government have the ability to deport citizens? Debate about the presence of alleged Nazi war criminals who settled in Australia in the aftermath of World War II, and allegedly concealed their true identities, highlights limitations on the deportation of on Australian citizens to show their Australian passport to comply with s 166, under s 166(4) a person may be taken to have complied with s 166 if an immigration officer to whom the person has been referred, knows or reasonably believes that the person is an Australian citizen”. 91 See, for instance, Minister for Immigration and Ethnic Affairs v Pochi (1982) 149 CLR 139; Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; Re Patterson; Ex Parte Taylor (2001) 207 CLR 391; and Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, discussed in Chapters 4 at [4.140] and 6 at [6.40]. 92 See Extradition Act 1988 (Cth) s 3(a). Extradition is discussed in Chapter 6 at [6.230]. 93 See Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 474 where Kirby J, in discussing the Extradition Act 1988 (Cth), stated: “the history of the Act, and the regulations made pursuant to the Act, suggests the persistence, within Australia, of a determination to preserve a broadly expressed exception to the extradition of Australian citizens (and others protected by Australian law) to other countries (including Commonwealth countries)”. In Canada, the case of Re Federal Republic of Germany and Rauca (1983) 41 OR (2d) 225 (CA) upheld the right to extradite a Canadian citizen, despite the Charter Right in s 6(1) of citizens to enter, remain and leave Canada. The court held that the Extradition Act was justified under s 1 of the Canadian Charter of Rights and Freedoms, which allows for “reasonable limits … in a free and democratic society”. 94 DJL v Central Authority (2000) 201 CLR 226 at [138] (citations omitted). On this point all justices agreed with Kirby J. This is also referred to in Chapter 6 at [6.150] and [6.230].

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Australian citizens. These people became Australian citizens. Under present laws, they cannot be deported, although they can be extradited, as the Victorian magistrate’s decision in 2001 involving the extradition of Konrad Kalejs highlighted.95 The changes to the Act around loss of citizenship for dual citizens96 also effectively mean that people who were Australian citizens can lose that status and then be removed or deported to their other country of citizenship. Another dramatic distinction between citizens and non-citizens is that non-citizens can be placed in administrative detention, as prescribed under the Migration Act 1958 (Cth).97 The government’s power to do this was confirmed by the High Court in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim). The court upheld the Executive’s power under the Migration Act 1958 (Cth)98 to detain an alien held in custody for the purposes of expulsion or deportation. This authority constituted an incident of Executive power.99 This was not entirely surprising since it had been long upheld by the Australian courts as a necessary consequence of the power to deport. However, it is a startling distinction given that citizens cannot be detained for administrative purposes, they can only be detained for criminal purposes: It would … be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody … The reason why that is so is that … the involuntary detention of a citizen in custody by the

95 Konrad Kalejs’ extradition hearing was before Magistrate Lisa Hannan and decided on 29 May 2001. He was released on bail by Kenny J in the Federal Court on 6 June 2001: Kalejs v Republic of Latvia [2001] FCA 676 pending a review of the order pursuant to s 21(1)(a) of the Extradition Act 1988 (Cth). The death of Kalejs in November 2001 meant that the case did not proceed. In Minister for Home Affairs (Cth) v Zentai (2012) 246 CLR 213, the majority of the High Court interpreted Australia’s extradition treaty with Hungary narrowly, concluding that Mr Zentai could not be extradited to Hungary because the war crimes offence for which he was wanted for questioning came into existence in 1945 and was thus not “an offence in the Requesting State at the time of the acts or omissions constituting the offence”, as required by the treaty. This was notwithstanding that the alleged conduct would have been undoubtedly criminal as murder. For a discussion, see Stubbs, “Case Note: Zentai and the Troubles of Extradition” (2013) 39(2) Monash University Law Review 894. 96 See section on Loss of Citizenship and Dual citizenship in Chapter 4 at [4.1290]. 97 Migration Act 1958 (Cth) s 189 states that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. 98 Migration Act 1958 (Cth) ss 54L and 54N as they then were. 99 Lim (1992) 176 CLR 1 at 10 per Mason CJ, at 32 per Brennan, Deane and Dawson JJ, at 47 per Toohey J, at 58 per Gaudron J and at 64 per McHugh J. Executive power was also the basis upon which the Federal Court ultimately found that the actions of the government in relation to the MV Tampa were lawful: see Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs (2001) 182 ALR 617; [2001] FCA 1297 and the Full Court Appeal, Ruddock v Vadarlis (2001) 183 ALR 1; [2001] FCA 1329. See further, the discussion in Chapter 7 at [7.120].

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State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.100

The judges did acknowledge (at 28–29) qualifications to the power to order citizens to involuntary confinement: The most important is … namely the arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts … Even where exercisable by the Executive, however, the power to detain a person in custody pending trial is ordinarily subject to the supervisory jurisdiction of the courts, including the “ancient common law” jurisdiction, “before and since the conquest”, to order that a person committed to prison while awaiting trial be admitted to bail. Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power. Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt and of military tribunals to punish for breach of military discipline, the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

There are further specific provisions in the Migration Act 1958 (Cth) distinguishing citizens and non-citizens. As mentioned, in order to be registered as a migration agent, a person must be a citizen or resident.101 The suspension of, and restrictions on, the number of visas in particular categories is not applicable to visa applications by spouses or dependent children of citizens, permanent visa-holders or residents.102 In order to sponsor people under the family migration program, the sponsor must be an Australian citizen, permanent resident or an eligible New Zealand citizen and, for some visas, must be either actually settled in Australia or ordinarily resident in Australia.103 One final aspect of the Migration Act 1958 (Cth) which, in practice, affects non-citizens more than citizens, is the altered right to judicial review of decisions under the Act. This is an example where there is no formal discrimination between citizens and non-citizens. In practice though, as most decisions under the Migration Act 1958 (Cth) impact upon non-citizens more than citizens, the Act discriminates in substance. Judicial review is a legal mechanism allowing courts to review the lawfulness of decisions made by the Executive. This mechanism is guaranteed by the Constitution in s 75(v)104 and has also been provided for through the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). Both s 75(v) of the Constitution and the ADJR Act 100 Lim (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ. 101 Migration Act 1958 (Cth) s 294. 102 Migration Act 1958 (Cth) ss 84, 87. 103 See Migration Regulations 1994 (Cth). 104 The Constitution, s 75(v) is discussed further in Chapter 6 at [6.140].

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apply to citizens and non-citizens alike.105 Until 1 September 1994, decisions under the Migration Act 1958 (Cth) were also reviewable under the ADJR Act. However, from that date, the Migration Reform Act 1992 (Cth) came into effect and was in effect until 2 October 2001. During that period an altered version of judicial review was available for decisions under the Migration Act 1958 (Cth).106 On 2 October 2001 a more radical amendment to the Migration Act 1958 (Cth)107 commenced, introducing a privative clause108 which was intended to further reduce the judicial review rights of people affected by the Migration Act 1958 (Cth). The High Court upheld the constitutional validity of these provisions in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, but made it clear that such privative clauses cannot protect decisions involving jurisdictional error from review by the High Court.109 In practical terms, this means that non-citizens must largely rely upon s 75(v) of the Constitution to judicially review decisions made under the Migration Act 1958 (Cth). In other words, non-citizens have less generous review rights of government decisions. The ADJR Act was introduced as a remedial statute in order to make review of government decisions more accessible and to overcome the many procedural difficulties involved with review under s 75(v) of the Constitution.110

Acts that require residents to register in order to participate [5.200] The following Acts mainly deal with some form of tax or licence and require residents to be identified in order to benefit from the scheme or system. Thus, for instance, to be treated as a “GST” group under the GST legislation, a group must nominate a resident entity, and a non-resident claiming return of seized goods under the customs legislation must nominate an agent in Australia. These Acts show the need for a residential link to be included in the benefit or opportunity afforded: A New Tax System (Goods and Services Tax) Act 1999 (Cth) • s 48-5: to be treated as a “GST group”, the group must nominate an entity which is a resident.

105 See below at [5.260] and Chapter 6 at [6.140]. 106 See further, Crock, Immigration and Refugee Law in Australia (1998). 107 Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 108 Section 474 of the Migration Act 1958 (Cth) provides: “(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.” 109 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 513 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Gleeson CJ and Callinan J wrote separate concurring judgments. 110 See Mason J in Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321 at 335–336 in his discussion of the remedial nature of the statute in interpreting the word “decision” under the ADJR Act.

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[5.210]

ACIS Administration Act 1999 (Cth) • s 21: a group of companies applying for participation as a single entity in the ACIS scheme must nominate a contact person who is a resident. Agricultural and Veterinary Chemicals Code [Schedule 1 of the Agricultural and Veterinary Chemicals Code Act 1994 (Cth)] • Pt 1 Div 4: condition of approval for holders of approval or registration to be resident and carry on business in Australia, and if not, the nominated agent must be. Customs Act 1901 (Cth) • s 205B: non-resident claiming return of seized goods must specify an agent residing in Australia. Insurance Act 1973 (Cth) • ss 95 and 118: Lloyd’s/foreign insurance business must be represented in Australia by a resident agent.

Acts that confer rights [5.210] Citizenship is often discussed in terms of rights and responsibilities. As the Constitution is without a bill of rights,111 there is no explicit list of constitutional rights that may be identified immediately as “citizenship rights”.112 The breadth of protection of rights under the Constitution was raised in obiter discussion in Cunliffe v Commonwealth (1994) 182 CLR 272 and provides further insight into the legal consequences flowing from citizenship. This question arose when the Migration Act 1958 (Cth) was amended113 to include a section imposing restrictions on the giving of “immigration assistance”.114 Only registered agents could legally provide immigration assistance,115 with harsh penalties applying for breach of that section.116 Cunliffe, a solicitor, 111 There are some constitutional rights articulated in the Constitution. For instance, s 41 (the right to vote) – although note the limited nature of the right; s 51(xxxi) (Commonwealth not to acquire property except on just terms); s 80 (trial by jury); s 92 (freedom of trade); s 116 (freedom of religion); s 117 (freedom from discrimination on the basis of state residence). See further, Williams, Human Rights in the Australian Constitution (1999) Ch 3. 112 See discussion in Chapter 7 at [7.50] regarding the possible inclusion of such a list in the future. 113 Migration Amendment Act (No 3) 1992 (Cth). 114 Migration Act 1958 (Cth) s 114B as numbered at that time (now s 276). 115 Barristers and solicitors are exempt under s 277 of the Migration Act 1958 (Cth) in relation to court proceedings only. 116 Monetary sum of $5,000: see Migration Act 1958 (Cth) s 280. Also note the risk of imprisonment of ten years for charging or receiving fees without being registered: see s 282.

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challenged the Act with the relevant challenge involving free speech.117 In the discussion about implied rights, some of the judges addressed the question of whether an implied freedom could be claimed by noncitizens. Mason CJ was the only judge to embrace the idea that non-citizens in Australia were entitled to the protection afforded by the Constitution and the laws of Australia.118 Relying on Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 521–522, he said that non-citizens within Australia were entitled to invoke the implied freedom of communication: particularly when they are exercising that freedom for the purpose, or in the course, of establishing their status as entrants and refugees or asserting a claim against government or seeking the protection of the government.119

This distinction means there are different legal consequences flowing from citizenship. Brennan J grounded the distinction in the notion of representative democracy (at 328): [Aliens] have no constitutional right to participate in or to be consulted on matters of government in this country

and the: Constitution contains no implications that the freedom is available to aliens who are applying for or who have applied for visas … Nor is there any basis for implying that aliens have a constitutional right.

More specifically, Brennan J stated that “if the Constitution implies a right of access to government or to the repositories of statutory power … it would be a citizen’s right”.120 The crucial point here is that the centrality of citizenship is the right to participate in, or to be consulted by, government. If a person does not have the right to vote, then that person does not have the right to rely on the constitutional protection of free speech in trying to invalidate a law. Deane J accepted part of Mason CJ’s argument, that non-citizens could rely on the ordinary law, and included in this some of the Constitution’s guarantees, directives and prohibitions,121 but declared that a non-citizen: stands outside the people of the Commonwealth whose freedom of political communication and discussion is a necessary incident of the Constitution’s doctrine of representative democracy. That being so the incident does not operate to directly confer rights or immunities upon an alien. Any benefit to an alien must be indirect in the sense that it flows from the freedom or immunity of those who are citizens.122 117 The other challenges were that there was no constitutional head of power for the Commonwealth to legislate and that it infringed s 92 of the Constitution because it impinged on freedom of intercourse between the States. 118 Cunliffe v Commonwealth (1994) 182 CLR 272 at 299. 119 Cunliffe v Commonwealth (1994) 182 CLR 272 at 299. 120 Cunliffe v Commonwealth (1994) 182 CLR 272 at 299. 121 See Constitution, ss 80, 92, 116. 122 Cunliffe v Commonwealth (1994) 182 CLR 272 at 336.

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Deane J noted that the effect of his distinction might be of no practical consequence. It is, however, significant in determining the rights that flow from citizenship. Therefore, as the Constitution is unclear about the protection of citizenship rights, the other avenue for the protection of rights is through legislation.123 The following Acts are identified for their protection of rights in that they refer specifically to citizens and residents. Other Acts protect the rights of individuals but do not refer to citizens and residents, and therefore do not specifically discriminate. These include many of the administrative law Acts, such as the Ombudsman Act 1976 (Cth), the Freedom of Information Act 1982 (Cth), and the Administrative Decisions (Judicial Review) Act 1977 (Cth).124 Very few of the Acts listed discriminate between citizens and permanent residents in the extension of rights. The three that do are the Commonwealth Electoral Act 1918 (Cth), by giving a “right to vote” only to citizens and British subjects on the electoral roll before 26 January 1984, the Migration Act 1958 (Cth) regarding the “right” to enter Australia without a visa, and the Australian Passports Act 2005 (Cth), which enables citizens to apply for a passport. These three Acts represent quite identifiable distinctions in political terms and social consequences for non-citizens. On citizens and residents [5.220]

The range of Acts identified for this subsection include:

Australian Security Intelligence Organisation Act 1979 (Cth) • s 27A: restriction on issue of warrant for purpose of collecting information concerning citizen or permanent resident. Bankruptcy Act 1966 (Cth) • s 56A: debtor’s petition against a partnership may be presented by all the partners, or a majority of the partners who are resident in Australia; • s 188: debtor who is a resident or has a dwelling, place of business, or is a member of a firm carrying on business in Australia, may authorise a registered trustee to become trustee in bankruptcy without a sequestration order. Broadcasting Services Act 1992 (Cth) • Sch 5 (online services) s 25: complainant (about online content) must be a resident; • Sch 7 (content services) s 41: complainant (about content) must be a resident. Circuit Layouts Act 1989 (Cth) • s 5: eligible person means an Australian citizen, an Australian protected person or a person resident in Australia. 123 These, however, are not entrenched; they could be repealed by any future Parliament. 124 These are discussed below at [5.260].

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Civil Aviation (Carriers’ Liability) Act 1959 (Cth) • ss 12(6) and 35(6): statutory action brought for the death of a passenger for the benefit of residents for whom the liability is enforceable, as well as non-residents who “express the desire to take the benefit of the action”. Commonwealth Electoral Act 1918 (Cth) • s 93: entitlement to enrolment and to vote – Australian citizen and British subjects within the meaning of the Australian Citizenship Act 1948 (Cth) whose names were, immediately before 26 January 1984: (A) on the roll for a Division; or (B) on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 (Cth) or the Northern Territory Representation Act 1922 (Cth). Competition and Consumer Act 2010 (Cth) • Pt X: directed at ensuring that citizens providing international shipping services are protected from anti-competitive practices of international shipping bodies (see definition of “Australian flag shipping operator” in s 10.02). Copyright Act 1968 (Cth) • ss 32, 84 and 211: copyright subsists only in original works created by an Australian protected person, citizen or resident; • ss 184 and 248U: application of Act to persons who are citizens or nationals, or residents of another country in like manner as the provisions apply to persons who are Australian citizens or residents; • ss 211 and 220: copyright may subsist in original created by a British subject or “a person domiciled in any part of the Queen’s dominion” if the work was created before the commencement of this Act. Corporations Act 2001 (Cth) • s 9A: a “rights issue” in respect of a body’s securities or an interest in a managed investment scheme may in some cases be made only to people with a registered address in Australia or New Zealand. Defence Act 1903 (Cth) • s 116F: apprehension of absentees from overseas forces not applicable where the absentee is an Australian citizen. Defence (Visiting Forces) Act 1963 (Cth) • s 8(2): citizens and residents not subject to service laws of foreign countries. Diplomatic Privileges and Immunities Act 1967 (Cth) • s 11: in the course of their duties, immunity given to staff of missions who are citizens or residents. Environment Protection and Biodiversity Conservation Act 1999 (Cth) • ss 5 and 224: extraterritorial only – citizens and permanent visa-holders “domiciled” in Australia;

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[5.220]

• s 475: only citizens and people ordinarily resident in Australia may apply for injunctions provided that either their interests have been affected or they have been engaged in activities or research for conservation; • s 487: only citizens and residents may apply for judicial review of decisions made under the Act. Fuel Quality Standards Act 2000 (Cth) • s 65: citizen and persons ordinarily resident in Australia taken to be aggrieved by conduct for the purpose of applying for an injunction under the Act if they have also engaged in activities in Australia for protection or conservation of, or research into, the environment; • s 70: same restrictions as in s 65 for review of decisions before the Administrative Appeals Tribunal. Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) • s 58A: extension of definition of “person aggrieved” for the purposes of Administrative Decisions (Judicial Review) Act 1977 (Cth) to citizens and residents in certain circumstances. Inspector-General of Intelligence and Security Act 1986 (Cth) • s 8(c): functions of the Inspector-General of Intelligence and Security include the protection of rights of Australian citizens and permanent residents where ASIO has furnished a report that is adverse to the interests of the person; • s 8(2): functions of Inspector-General of Intelligence and Security to include response to complaints from Australian citizens and permanent residents; • s 8(4): certain functions not to be exercised by Inspector-General unless Australian citizens or permanent residents are affected. Interactive Gambling Act 2001 (Cth) • s 19: only individuals who are Australian residents (or bodies corporate that carry on activities in Australia, or the Commonwealth, a State or a Territory) can make a complaint to the Australian Communications and Media Authority about prohibited internet gambling content. Migration Act 1958 (Cth) • ss 166 and 172: immigration clearance to persons holding Australian passports or Australian citizens; • ss 84 and 87: suspension of/restrictions on number of visas not applicable to visa applications by spouses or dependent children of citizens, permanent visa-holders or residents. Navigation Act 2012 (Cth) • Regulations may prescribe conditions as to nationality, citizenship or residence in relation to seafarer certificates (s 29(2)) and the licensing of pilots (s 64(2)).

[5.230]

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Australian Passports Act 2005 (Cth) • s 7: only citizens may be issued passports. Public Lending Right Act 1985 (Cth) • s 5: only citizens and residents eligible for payment for authoring books held in Australian libraries (definitions of “Australian author” and “Australian person” in s 3). Resale Royalty Right for Visual Artists Act 2009 (Cth) • ss 12, 14: royalty right held only by artists who satisfy the residency test by being Australian citizens, permanent residents, or nationals or citizens of a country prescribed as a reciprocating country. Schools Assistance Act 2008 (Cth) • s 92: “eligible new arrival” for English classes is a citizen, permanent visa-holder, a resident on Christmas Island or the Cocos (Keeling) Islands, or a person prescribed by regulation. Schools Assistance (Learning Together – Achievement Through Choice and Opportunity) Act 2004 (Cth) • s 4: “eligible new arrival” for English classes is a citizen, permanent visa-holder, a resident on Christmas Island or the Cocos (Keeling) Islands, or a person prescribed by regulation. Telecommunications (Interception and Access) Act 1979 (Cth) • Pt 2-2 s 11D: The Director-General must not request the issue of a warrant under s 11A, 11B or 11C for the purpose of collecting information concerning an Australian citizen or permanent resident. Torres Strait Fisheries Act 1984 (Cth) • s 3: definition of “community fishing” rights – commercial fishing carried on by a person or two or more persons each of whom is both a traditional inhabitant and Australian citizen. Upon non-citizens [5.230] Regarding rights, the following Acts specifically identify noncitizens in their application. The Crimes Act 1914 (Cth) and the Education Services for Overseas Students Act 2000 (Cth) both protect non-citizen rights; the Fisheries Act 1952 (Cth) denies them. The latter is interesting, as administrative rights are specifically not extended to non-citizens.125 125 This is an interesting exclusion not dissimilar to restrictions on judicial review under the Migration Act 1958 (Cth): see discussion at [5.190]. Sections 12S and 16A of the Fisheries Act 1952 (Cth) were inserted by the Fishing Legislation Amendment Act 1984 (Cth). There is nothing in Hansard directly explaining the limitation on the review. All that was said was that the Bill provides for “administrative review of decisions relating to licensing functions, other than decisions in respect of … persons who are not citizens or residents of Australia. These provisions reflect the Government’s commitment to the principle that discretionary powers should be reviewable”: Australia, House of Representatives, Debates (7 December 1983) p 3365 (Minister for Primary Industry).

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[5.240]

Other Acts that do not specifically discriminate may operate to cover non-citizens, as discussed further below at [5.260]: Crimes Act 1914 (Cth) • s 23P: right of non-citizen to communicate with consular office. Defence Act 1903 (Cth) • s 123H: Minister may make payments to non-citizens if they suffer loss, damage or injury in the course of a defence force activity outside Australia. Education Services for Overseas Students Act 2000 (Cth) • s 101: offences under Act for persons offering overseas students and any other prescribed non-citizen services while suspension certificate in effect for registered provider. Upon non-residents [5.240] Two further Acts identify non-residents in their application of rights. The Family Law Act 1975 (Cth) involves recognition of marriages overseas and the Small Superannuation Accounts Act 1995 (Cth) deals with the right of non-residents to access their money. Family Law Act 1975 (Cth) • s 104(3): dissolution of marriage under overseas law shall be recognised in Australia if applicant or respondent was a resident of, or “domiciled” in, that overseas country at that time. Small Superannuation Accounts Act 1995 (Cth) • s 67: non-resident over 55 may withdraw superannuation account balance; • s 67A: former temporary residents may withdraw superannuation account balance.

Other Acts that discriminate [5.250] This subsection includes a range of subjects not fitting neatly into the categories discussed above. The existence of this list displays the extent to which membership status figures in federal legislation. The breadth of subject matter also shows the depth of impact that membership status can have on people’s dealings with government. There are a few Acts worthy of highlighting to make several philosophical points. The Australian Law Reform Commission Act 1996 (Cth) refers to the “rights and liberties of citizens”. This is unlikely to be restricted to formal legal citizens. As discussed further in Chapter 6 at [6.10] often the word “citizen” is used when the legal word really should be “persons”.126 The Hansard explanation of the Bill concentrated upon the Act replacing the 126 See Chapter 6 at [6.250].

[5.250]

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Law Reform Commission Act 1973 (Cth)127 and made no mention of the use of the word “citizen”. In the Law Reform Commission Act 1973 (Cth), the term “citizen” had been inserted as an amendment to the Bill, but there was no discussion of the connotation of the word “citizen” in Hansard.128 The Administrative Decisions (Judicial Review) Act 1977 (Cth) is discussed in greater detail in the subsection looking at Acts which impact upon membership without any reference to membership status.129 Its inclusion in this subsection highlights again the discriminatory treatment of non-citizens in regard to certain aspects of judicial review.130 The Marriage Act 1961 (Cth) uses the language of domicile. This is because the sections relate to the rules of private international law. Sections 88D and 88E were inserted by the Marriage Amendment Act 1985 (Cth); s 23 to give effect to the Hague Convention on Celebration and Recognition of the Validity of Marriages, which was designed to overcome the limitations of private international law: The primary purpose of the Bill is to implement the Convention … The Convention is aimed at alleviating a growing international problem … that is the recognition by one country of marriages celebrated in another, or between parties domiciled in another country … The common law solution to this problem is uncertain.131

Many Acts respond to international law matters, be it in private or public international law, reflecting the varying influences on legislative membership in Australia. The list below includes: Administrative Decisions (Judicial Review) Act 1977 (Cth) • Sch 2 para (d)(iii): excluded from s 13 (right to reasons) are decisions as to whether a person is a person referred to in para (b) of the definition of “exempt non-citizen” in s 5(1) of the Migration Act 1958 (Cth). Australian Law Reform Commission Act 1996 (Cth) • s 24: the Commission’s functions include reviewing laws that might “make the rights and liberties of citizens dependent upon administrative rather than judicial decisions”. Australian Security Intelligence Organisation Act 1979 (Cth) • s 36: restrictions on issue of employment-related security assessments not applicable where non-citizen or non-resident. 127 Australia, House of Representatives, Debates (20 June 1996) pp 2451–2453 (Mr Williams). 128 Australia, Senate, Debates (6 December 1973) p 584. 129 See below at [5.260]. 130 As discussed above at [5.190] in relation to the extensive exclusion of the Administrative Decisions (Judicial Review) Act 1977 (Cth) from application to the Migration Act 1958 (Cth). 131 Australia, House of Representatives, Debates (20 March 1985) p 618 (Mr Brown).

342

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[5.250]

Crimes (Hostages) Act 1989 (Cth) • s 15: only non-citizens arrested for an offence against this Act are entitled to assistance under para 3, Art 6 of the Convention. Crimes (Internationally Protected Persons) Act 1976 (Cth) • s 11: only non-citizens arrested for an offence against this Act are entitled to assistance under para 3, Art 6 of the Convention. Fisheries Management Act 1991 (Cth) • s 102(3)(b): offence of captaining a foreign fishing boat into an Australian port – defence if on behalf of a resident; • Sch 1A, items 1, 8, 13: fisheries detention powers do not apply to Australian citizens and permanent residents. Immigration (Education) Act 1971 (Cth) • s 4A: eligibility for education and citizenship courses – citizens, permanent visa-holders and certain temporary visa-holders (or persons under 18 but with a parent in one of these categories). Immigration (Guardianship of Children) Act 1946 (Cth) • whole Act concerns guardianship of all children entering Australia as non-citizens and intending to become residents (definition of “noncitizen child” in s 4AAA). International Arbitration Act 1974 (Cth) • s 7(2): enforcement of foreign arbitration agreements – including where the agreement is governed by the law of a non-Convention country as long as one party was an Australian resident at the time the agreement was made (see s 7(1)(b)); • s 8: enforcement of arbitration awards made in a non-Convention country – only where person seeking enforcement is an Australian resident. International Tax Agreements Act 1953 (Cth) • Act gives force to agreements with other countries concerning taxation of income of residents of those countries. International Transfer of Prisoners Act 1997 (Cth) • s 13: eligibility for transfers to Australia of prisoners other than Tribunal prisoners – Australian citizen or, if prisoner, is permitted to travel to, enter and remain in Australia indefinitely if has community ties with a State or Territory. Judiciary Act 1903 (Cth) • s 29: in suit where High Court has original jurisdiction, the court may proceed against absent non-resident defendant after notification. Life Insurance Act 1995 (Cth) • s 18: Act does not apply to life insurance policies issued outside Australia to people who were non-residents at the time.

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Marriage Act 1961 (Cth) • ss 10(2), 76, 88D(2)(b) and (3), 88E(2): ss 11 and 12 (minimum age of marriage) apply to marriages of people “domiciled” in Australia wherever the marriage took place; additional consent required for marriage of minor domiciled outside of Australia; where neither party is domiciled in Australia at the time of the marriage, the marriage is not recognised as valid while either party remains less than 16 years of age; • ss 77 and 78: solemnisation of marriages where a party to the marriage is not an Australian citizen; • ss 84 and 85: registration and certification of overseas marriages where one party is Australian citizen; • ss 89(3) and 91: legitimation of certain births by virtue of one parent being “domiciled” in Australia. Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) • Div 2A: offences relating to nuclear terrorism if committed or done by or against Australian citizen. Patents Act 1990 (Cth) • s 219: non-resident may be ordered to provide security for costs. Registration of Deaths Abroad Act 1984 (Cth) • Long title: “an Act to provide for the registration of the deaths of Australian citizens who have died abroad and of certain other persons”; • s 8: registration of deaths of certain “prescribed persons” – includes citizens and residents who ordinarily reside in Australia or an external Territory or who are receiving certain Australian social security payments. Shipping Registration Act 1981 (Cth) • s 12(2): Australian-owned ships being operated by a non-resident under demise charter may be exempted from registration requirement. Student Assistance Act 1973 (Cth) • s 44A: requirement to provide Tax File Number to receive financial assistance not applicable to non-residents. Taxation Administration Act 1953 (Cth) • s 14S: copy of departure prohibition order made against citizen not to be given to Immigration Department unless desirable to do so. Torres Strait Fisheries Act 1984 (Cth) • Sch 2, items 1, 8, 13: fisheries detention powers do not apply to Australian citizens and permanent residents. This disparate list reinforces the scope of regulation generally in people’s lives, and this, then, impacts upon all individuals, regardless of their membership status. However, the fact that membership status is

344

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[5.260]

significant to some degree in those Acts has a substantive impact on people’s sense of membership within a community.

Acts that explicitly do not discriminate on the basis of citizenship [5.260] This subsection is interesting in that, unlike the subsection after it, legislators are explicit about the application of the Act to citizens and non-citizens alike: A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) • s 81: ss 71 – 75 (Recovery of debts, etc) – apply regardless of citizenship or nationality and extend beyond Australia; • s 153: Pt 6 Div 1 (Power to gather information) – applies regardless of citizenship or nationality and extends beyond Australia; • s 171: Pt 6 Div 3 (False statements) – applies regardless of nationality and extends beyond Australia; • s 219TJ: (Notification by nominee of matters affecting liability to act as nominee) – extends to all persons irrespective of their nationality or citizenship; • s 219TK: (Statement by payment nominee regarding disposal of money) – extends to all persons irrespective of their nationality or citizenship. Admiralty Act 1988 (Cth) • s 5: Act applies regardless of residence of shipowner. Australian Passports Act 2005 (Cth) • s 18: a request to refuse to issue an Australian passport or to cancel an Australian passport or travel document may be made irrespective of whether the person is an Australian citizen. Bankruptcy Act 1966 (Cth) • s 7: explicitly extends application of Act to non-citizens. Corporations Act 2001 (Cth) • s 5: Act applies to all, whether or not they are residents or citizens according to its tenor; • s 342AB(1): appointment of a firm as auditors of a company or registered scheme is taken to be an appointment of all persons who are members of the firm and registered company auditors, whether or not they are resident in Australia; • s 1042B: insider trading prohibitions apply regardless of where the issuer of the products resides. Crimes (Aviation) Act 1991 (Cth) • s 12: Act applies regardless of citizenship. Crimes (Currency) Act 1981 (Cth) • s 5: Act applies regardless of citizenship.

[5.260]

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Crimes (Hostages) Act 1989 (Cth) • s 5: Act applies regardless of citizenship. Crimes (Internationally Protected Persons) Act 1976 (Cth) • s 5: Act applies regardless of citizenship. Crimes (Ships and Fixed Platforms) Act 1992 (Cth) • s 5: Act applies regardless of citizenship. Criminal Code Act 1995 (Cth) • Sch s 80.1A: for treason and urging violence offences, “organization” means a body corporate or an unincorporated body, whether or not the body is based outside Australia, consists of persons who are not Australian citizens, or is part of a larger organisation. Foreign Acquisitions and Takeovers Act 1975 (Cth) • s 17: Act applies regardless of citizenship or residency. Great Barrier Reef Marine Park Act 1975 (Cth) • s 5: Act applies to all persons (including persons who are not Australian citizens). Judiciary Act 1903 (Cth) • s 47: Pt VIII (Enforcement of certain orders concerning court proceedings) applies regardless of citizenship. National Consumer Credit Protection Act 2009 (Cth) • s 21(6): Each provision of the Act applies, according to its tenor, to natural persons whether or not they are citizens or residents in Australia. National Health Security Act 2007 (Cth) • s 8: “permissible purpose” for the purposes of the Act includes identifying, treating and bringing to Australia an Australian or non-Australian who dies or is injured as the result of an “overseas mass casualty” (though not the treatment of a non-Australian outside Australia). Offshore Minerals Act 1994 (Cth) • s 37: Act applies regardless of citizenship and residency. Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) • s 35: Act applies to all individuals, whether or not Australian citizens, and whether or not resident in the Commonwealth or a Territory. Patents Act 1990 (Cth) • s 15: a patent may be granted regardless of whether applicant is an Australian citizen.

346

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[5.260]

Personally Controlled Electronic Health Records Act 2012 (Cth) • s 105: the Act also has the effect it would have if each reference to a consumer were expressly confined to a reference to a consumer who is an alien or a resident of a Territory. Plant Breeder’s Rights Act 1994 (Cth) • s 24: right to apply for a plant breeder’s right regardless of citizenship or residency. Proceeds of Crime Act 2002 (Cth) • s 13: Act applies to all persons, irrespective of their nationality or citizenship. Sea Installations Act 1987 (Cth) • s 11: Act applies regardless of citizenship and residency. Social Security Act 1991 (Cth) • s 1230B: certain sections (imposing liability for overpayment) apply to all persons, regardless of nationality or citizenship. Social Security (Administration Act) 1999 (Cth) • s 73: certain requirements to give information and notice to the Secretary about change in circumstances apply irrespective of citizenship; • s 123L: obligation to give the Department a statement about disposal of money applies irrespective of citizenship; • s 191: obligation to provide certain information to the Secretary applies irrespective of citizenship. Telecommunications Universal Service Management Agency Act 2012 (Cth) • s 11: policy objectives include that standard telephone services be reasonably accessible to all people in Australia on an equitable basis. Student Assistance Act 1973 (Cth) • s 342: Pt 10 Div 2 (Power to gather information) – applies regardless of “nationality”. Veterans’ Entitlements Act 1986 (Cth) • ss 118ZI and 118ZJ: obligation to notify secretary of change in circumstances applies regardless of citizenship. War Crimes Act 1945 (Cth) • Act applies to war crimes committed against people of any race (see definition of “person” in s 5 and definition of “serious crime” in s 6). Youth Allowance Consolidation Act 2000 (Cth) • ss 1061ZZBX, 1061ZZCE: Div 12 subdivs B and C (regarding disclosure of changes in circumstances, or matters relevant to payment of financial supplements) apply to all people irrespective of their nationality or citizenship.

[5.270]

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Other Acts that impact upon membership and rights [5.270] The Acts listed below have been identified because they affect the way individuals are treated by the State, and reflect citizenship in the normative sense. That is, they allow for greater participation in the legal and political arenas and, to some extent, attempt to deal with the private domains as well. These Acts are discussed further below: Administrative Decisions (Judicial Review) Act 1977 (Cth) • provides for the judicial review of administrative decisions (s 5) and conduct (s 6) made under certain enactments on grounds ranging from a denial for natural justice to the decision being beyond the power granted to the body under the enactment, and allowing for remedies, including the quashing of the decision, and a requirement that it be remade, together with a declaration of the parties’ rights. Age Discrimination Act 2004 (Cth) • aims to eliminate, as far as possible, discrimination against persons on the ground of age in the areas of work, education, access to premises, the provision of goods, services and facilities, accommodation, the disposal of land, the administration of Commonwealth laws and programs and requests for information. The Act also seeks to ensure that everyone has the same rights to equality before the law as the rest of the community regardless of age and to allow appropriate benefits and other assistance to be given to people of a certain age (particularly younger and older persons) in recognition of their particular circumstances (s 3). Australian Human Rights and Equal Opportunity Commission Act 1986 (Cth) • sets up a Commission whose function is to investigate and attempt to conciliate complaints of unlawful discrimination under the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth), the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth) or any other enactment, to examine enactments and proposed enactments to determine whether they may be inconsistent with, or contrary to, any human right, and to promote education in the area of human rights (s 11). Freedom of Information Act 1982 (Cth) • extends the right of the Australian community to access information in the possession of the Commonwealth Government by making available information about the operation of government departments, by creating general rights of access to information in the possession of the authorities (limited by exceptions for privacy), and by creating a right to correct records containing personal information (s 3). Ombudsman Act 1976 (Cth) • creates an Ombudsman to investigate administrative action either on his or her own motion or about which a complaint has been made, and provides for the creation of an Ombudsman scheme; but there are limits on the investigative powers of the Ombudsman, particularly with respect to judicial and legislative action.

348

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[5.270]

Disability Discrimination Act 1992 (Cth) • aims to eliminate discrimination on the ground of disability in the areas of work, accommodation, education, access to premises, clubs and sport, provision of goods, facilities, services and land, existing laws and the administration of Commonwealth laws and programs. The Act also aims to ensure that people with disabilities have the same rights to equality before the law as the rest of the community (s 3). Extradition Act 1988 (Cth) • Purpose is to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence (s 3) and an extraditable person is defined in s 6 without any reference to citizenship or membership. Family Law Act 1975 (Cth) • Family Law (Child Abduction Convention) Regulations 1986 (Cth) provide for compulsory removal of persons pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986 (Cth) • Repeals the Human Rights Commission Act 1981 and makes amendments to the Racial and Sex Discrimination Acts to make way for the introduction of the Human Rights and Equal Opportunities Commission. Human Rights (Sexual Conduct) Act 1994 (Cth) • Provides that sexual conduct between consenting adults in private is not to be subject by any law to interference with privacy in line with Art 17 of the ICCPR (s 4). Privacy Act 1988 (Cth) • ss 80J and 80K: the Prime Minister or Minister may make emergency declaration in respect of emergencies or disasters of national significance, or which occur outside Australia, and which affect Australian citizens or permanent residents (whether in or out of Australia). This declaration allows entities to use and disclose certain personal information related to individuals reasonably believed to have been involved in the emergency or disaster without breaching the Act. Racial Discrimination Act 1975 (Cth) • Ratifies the International Convention on the Elimination of all Forms of Racial Discrimination and makes it unlawful to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin (s 9).

[5.290]

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Sex Discrimination Act 1984 (Cth) • Gives effect to the Convention on the Elimination of All Forms of Discrimination Against Women, and aims to eliminate discrimination against persons on the grounds of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs, and to promote acceptance of the principle of equality between men and women (s 3). Administrative law and citizenship [5.280] Margaret Allars used the word “citizenship” in discussing the contribution of Sir Anthony Mason to administrative law.132 She explains: The term “citizen” is employed in this essay, not with the technical meaning found in migration and citizenship laws, but rather in the wider and jurisprudential sense of a person in a reciprocal relationship with government defined by political and civil rights and duties.133

As administrative law concerns the protection of individual rights in relation to the state, they are included in this subsection. The Administrative Decisions Judicial Review Act 1977 (Cth) (ADJR Act) was a remedial piece of legislation, making judicial review of government decisions more accessible to individuals. Part of the philosophy underpinning its introduction is a normative view of citizenship – empowering the rights of individuals in their relationship with the state. While this Act applies to citizens and non-citizens alike, the restriction of the use of the ADJR Act in the migration jurisdiction134 means that, in practice, non-citizens have fewer judicial review rights than citizens. The other administrative law mechanisms of freedom of information, access to the Ombudsman and merits review are available to both citizens and non-citizens. When non-citizens rely upon these legal avenues of protection, they are included in an understanding of citizenship as an expression of rights-bearing persons, entitled to certain protections from the state. Human rights legislation [5.290] The Human Rights Acts listed are included for the same reason as the administrative law Acts. Each is grounded in a belief in the rights of individuals against the state. Each is available to citizens and non-citizens alike. Indeed, each Act promotes a stronger and more 132 Allars, “The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law” (2000) 28 Federal Law Review 187. 133 Allars, “The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law” (2000) 28 Federal Law Review 187 at 187 n 1. 134 As discussed more fully at [5.190].

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accessible form of membership in the Australian community. These Acts reflect citizenship as an inclusive notion, protecting citizens, non-citizens and temporary residents. Formally, all individuals are entitled to the protection of the legislation. However, often those with more money and power are better able to utilise it.135 Family Law Act 1975 (Cth) [5.300] The Family Law Act 1975 (Cth) is included following the decision of the High Court in DJL v Central Authority.136 The applicant argued that her child’s Australian citizenship status protected her from removal under the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The Act provided for compulsory removal of people pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The court rejected her argument, confirming that Australian citizens are in the same position as other people regarding removal from Australia in certain circumstances. There is no greater protection accorded by virtue of one’s citizenship status.137

CONCLUSION [5.310] The differences and inconsistencies between citizenship and residence in Australia show that the ideal of universal citizenship is sometimes incorporated through the legal system, but not consistently. The universal notion often jars with other formal exclusive representations of legal citizenship. As Bosniak argues, “[t]he challenge to universal citizenship becomes especially clear if we focus on the condition of non-citizens, or aliens, who reside within the liberal democratic community”,138 for the reality is that non-citizens, whether they are permanent residents or temporary residents, are participants in the community: As workers, taxpayers, consumers, neighbors, they are persons who constitute part of the life of the (nationally bounded) political community – the very community that citizenship in its internal mode considers its proper domain of concern.139

This tension between citizenship as exclusion and inclusion is not unique to Australia. Peter Spiro, a United States academic reviewing Rogers 135 For critiques of anti-discrimination legislation and human rights legislation, see generally Gaze and Jones, Law, Liberty and Australian Democracy (1990); Thornton, The Liberal Promise: Anti-discrimination Legislation in Australia (1990); Hunter, “Equal Opportunity Law Reform” (1991) 4 Australian Journal of Labour Law 226; and Morgan, “Equality Rights in the Australian Context: A Feminist Assessment” in Alston (ed), Towards an Australian Bill of Rights (1994) p 123. 136 DJL v Central Authority (2000) 201 CLR 226. 137 See discussion above at [5.190] and also in Chapter 6 at [6.20] and [6.230]. 138 Bosniak, “Universal Citizenship and the Problem of Alienage” (2000) 94 Northwestern University Law Review 963 at 966. 139 Bosniak, “Universal Citizenship and the Problem of Alienage” (2000) 94 Northwestern University Law Review 963 at at 973–974.

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Smith’s book,140 describes the tensions as giving rise to the “citizenship dilemma”: “On the one hand, exclusionary approaches have been morally and legally discredited. On the other hand, inclusion waters down the strength of national identity.”141 Savitri Taylor has written about line-drawing in looking at the rights of particular non-citizens – in fact those on the “lowest” rung of membership – asylum-seekers in Australia.142 She argues that “in the end, how a liberal democratic state treats members comes down to a choice between two possible social moralities”.143 One is particularism – which she describes as a moral perspective “usually associated with the more extreme republican or communitarian models of democracy”.144 In this scenario, only members of the group are morally entitled to anything, and if someone is not invited and not a member of the group, they have no moral claim on the group. This is in stark contrast to a universalist morality, which she explains underpins human rights law,145 and which deals with all human beings as entitled to respect for their humanity and dignity. In relation to the uninvited, she persuasively shows Australia’s particularist approach and warns of its failure to stop with the distinction of citizenship – it also extends within the citizenry to those we deem worthy of social support and those who we deem unworthy.146 However, the bulk of the legislation listed and discussed shows that the distinction between citizenship and permanent residence is not significant. This shows that, on the whole, an inclusive approach to citizenship has been incorporated in that residents are often included as “Australians in all but law”.147 The significant Acts discriminating between citizens and non-citizens are the Commonwealth Electoral Act 1918 (Cth), the Migration Act 1958 (Cth), and the Australian Passports Act 2005 (Cth). In political terms, then, citizenship is of crucial significance. Many of the Acts 140 Smith, Civic Ideals: Conflicting Visions of Citizenship in US History (1997). 141 Spiro, “The Citizenship Dilemma” (1999) 51 Stanford Law Review 597 at 599. 142 Taylor, “Do On-shore Asylum Seekers have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy” (2000) 1 Melbourne Journal of International Law 71. 143 Taylor, “Do On-shore Asylum Seekers have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy” (2000) 1 Melbourne Journal of International Law 71 at 94. 144 Taylor, “Do On-shore Asylum Seekers have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy” (2000) 1 Melbourne Journal of International Law 71 at 94. 145 Taylor, “Do On-shore Asylum Seekers have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy” (2000) 1 Melbourne Journal of International Law 71 at 84ff. 146 Taylor, “Do On-shore Asylum Seekers have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy” (2000) 1 Melbourne Journal of International Law 71 at 96. 147 Einfeld J in Minister for Immigration v Roberts (1993) 41 FCR 82, cited in Chapter 1 at [1.10].

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regarding membership in different guises also distinguish on the basis of citizenship.148 Therefore, the philosophies of citizenship as exclusion and citizenship as inclusion have been adopted in different contexts in the legislative arena. Of course, other forms of social membership exist and are not necessarily caught by legislation. These include school communities and private community groups, such as service clubs, social clubs, book groups, and local gyms. They are all expressions of community and membership and contribute to a person’s sense of belonging. While reflecting on the limitations of law in determining membership, this does not undermine the value of analysing law; it just means it is not the only measure. This chapter has sought to “think about what citizenship can and should mean in an era of increasingly massive, and often uncontrolled, cross-national migrations”.149 Overall, the research undertaken reveals attention is not often given to legal status when Parliament legislates on matters affecting membership. Hansard reveals an absence of discussion around the choice of citizenship, permanent residence, or temporary residence. Perhaps this implies that an inclusive approach to membership underlies community values. For instance, until the introduction of the Financial Sector Legislation Amendment Bill (No 1) 2000 (Cth), the Reserve Bank Act 1959 (Cth) required employees to be citizens.150 Mr Hockey’s Second Reading speech of the Amendment Bill stated: The bill amends the Reserve Bank Act 1959 to simplify and modernise the Reserve Bank service. Service provisions cover the Reserve Bank’s ability to engage staff and formulate their conditions of employment. The replacement provisions are more appropriate to modern day management and are consistent with reforms in the Commonwealth public sector.151

This significant advance for the rights of non-citizens was not even mentioned, although perhaps “modern day management” is a euphemism for a desire to get the best people for the job, regardless of citizenship status. Moreover, it is not entirely clear how consistent this is with “reforms in the Commonwealth public sector” as the Public Service Act 1999 (Cth) still discriminates in favour of citizens. By comprehensively listing the range of legislation in this chapter, the inconsistencies are more apparent. Most importantly, this chapter has enumerated the many ways in which legislatures load and unload the language of inclusion and deal citizens and non-citizens in and out of the legislative pack and, more importantly, the national polity.

148 As set out at [5.180]. 149 Bosniak, “Universal Citizenship and the Problem of Alienage” (2000) 94 Northwestern University Law Review 963 at 980. 150 See Reserve Bank Act 1959 (Cth) s 68. 151 Australia, House of Representatives, Debates (13 April 2000) (Mr Hockey, North Sydney, Minister for Financial Services and Regulation) p 15889.

Chapter 6

The High Court, Citizenship and Membership [6.10] INTRODUCTION ............................................................................................................... 353 [6.20] CITIZENSHIP AS A CONSTITUTIONAL CONCEPT ................................................. 354 [6.30] Section 44 of the Constitution and citizenship .............................................................. 356 [6.40] Section 117 of the Constitution and citizenship ............................................................ 357 [6.50] Section 51(xix) and citizenship ......................................................................................... 359 [6.60] Section 51(xix) and control over non-citizens ................................................................ 360 [6.70] Meaning of “aliens” ........................................................................................................... 361 [6.130] Implied constitutional rights and citizenship .............................................................. 366 [6.140] Other constitutional protections through Chapter III and section 75(v) of the Constitution ....................................................................................................................... 369 [6.150] CITIZEN AS LEGAL CITIZEN ...................................................................................... 370 [6.150] Non-constitutional rights of legal citizens ................................................................... 370 [6.160] Legislative rights of legal citizens ................................................................................. 371 [6.170] Voting rights ...................................................................................................................... 371 [6.210] Jury service ........................................................................................................................ 379 [6.220] Military service .................................................................................................................. 380 [6.230] Extradition and removal from Australia ...................................................................... 380 [6.240] Taxation .............................................................................................................................. 382 [6.250] RIGHTS OF “CITIZEN-PERSONS” ............................................................................... 383 [6.260] CONCLUSION .................................................................................................................. 387

INTRODUCTION1 [6.10] This chapter examines citizenship law and the use of the word “citizen” through the eyes of the High Court of Australia. Material 1 Parts of this chapter appear, where relevant, in other parts of this book and have also appeared in earlier forms elsewhere in different guises. The original form of the work was presented as a paper, “The High Court and the Shaping of Australian Citizenship” at the conference Individual, Community, Nation: 50 years of Australian Citizenship and is available online through the National Library of Australia’s site, http://www.purl.nla.gov.au/nla/ pandora/citizen. An edited version of the conference paper appears as Rubenstein, “The High Court of Australia and the Legal Dimensions of Citizenship” in Rubenstein (ed), Individual, Community, Nation: 50 Years of Australian Citizenship (2000), p 21. Sections also appear in Rubenstein, “Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia” (2000) 24 Melbourne University Law Review 576 and in my chapter, “Citizenship”, in Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia (2001). This chapter was revised and updated for the second edition of this book.

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relevant to the High Court has already been raised when discussing the meaning of “citizenship” before the term was recognised as a formal legal status in Australia.2 This chapter focuses on cases beyond those years, and a range of cases where the word “citizen” has appeared in judgments even though they have not necessarily been cases about the legal status of citizenship.3 It is a limited view, necessarily, as the High Court’s judgments are restricted to cases brought before it where the court is called upon to resolve a legal dispute. But these cases reflect legal and normative notions of membership of the Australian community and assist in explaining the often-confused understanding of the term. Within court judgments sometimes superhuman feats of clarification are expected, where not only the nub of the dispute is stripped bare to its essence but so, too, is everything around it. More particularly, we expect words to be used like surgical instruments, to cut to the bone and render everything clear. This is not the case with citizenship. In many judgments where the word “citizen” appears, the High Court uses it interchangeably with the word “person”. Like the rest of the Australian community, the High Court also uses the word “citizen” when it is referring to individuals bearing rights – and they could very well be “non-citizens”.4 This has contributed to a misunderstanding of citizenship in Australia.

CITIZENSHIP AS A CONSTITUTIONAL CONCEPT [6.20] “Citizenship”, as Gaudron J states in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (Lim) (1992) 176 CLR 1 at 54, is not a constitutional term at all: Citizenship, so far as this country is concerned, is a concept which is entirely statutory, originating as recently as 1948 … It is a concept which is and can be pressed into service for a number of constitutional purposes … But it is not a 2 See Chapter 3 at [3.100]. 3 This chapter is based upon research looking at the use of the word “citizen” by the High Court of Australia. In the first edition, it involved identifying all the reported High Court cases until 2001 where the word “citizen” was used. Approximately 300 cases were found looking at reported cases up until July 2001. I thank in particular the research assistance over the years of Jennifer Patterson, Kylie Evans, Evelyn Ng, Mark Grasso and Larissa Halonkin, funded through two small Australian Research Council grants. For the second edition of this book, this chapter was updated to include key cases discussing the concept of citizenship from 2001 until June 2014. 4 Legal commentators also do this: see Mason, “Citizenship” in Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) p 35, where he discusses citizenship rights as identified by the High Court, yet only distinguishes this from “formal” citizenship at the very end of his chapter. See also Allars, “The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law” (2000) 28 Federal Law Review 187 where she states in her first footnote: “The term ‘citizen’ is employed in this essay, not with the technical meaning found in migration and citizenship laws, but rather in the wider and jurisprudential sense of a person in a reciprocal relationship with government defined by political and civil rights and duties.”

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concept which is constitutionally necessary, which is immutable or which has some immutable core element ensuring its lasting relevance for constitutional purposes.5

Indeed, the term was deliberately omitted from the Australian Constitution.6 While John Quick was keen to include a reference to national citizenship, Isaac Isaacs successfully pressed for its omission.7 Kirby J explains in DJL v Central Authority (2000) 201 CLR 226 at 277–278 (references omitted): The Australian Constitution does not refer to the status of “citizen” in relation to native born or naturalized people of the Commonwealth. The “people” are referred to in several places. Elsewhere the people who are entitled to vote are described as “electors”. In harmony with the notions of the time, the Constitution refers to the national status of Australians as that of “a subject of the Queen”. This has been construed, in contemporary circumstances, to be equivalent to a reference to Australian citizenship.

While some of these statements are arguable,8 there is no doubt that the absence of any explicit use of the term “citizen” has been a constraining factor in the High Court’s approach to Australian citizenship. Controversially, Kirby J argues in DJL v Central Authority (at 278) that “it … seems likely that further constitutional implications will be derived for the idea of citizenship to which the political institutions established by the Constitution give effect”.9 However, so far, the court has had no constitutional foundation for securing the concept of citizenship held out by liberalism, which treats political membership as the source of protection for rights.10 For instance, in the High Court human rights case, Kruger v Commonwealth (the Stolen Generations case) (1997) 190 CLR 1, the plaintiffs’ claims lacked any constitutional foundation in a concept of citizenship.11 Bereft of any 5 This is the same in Canada: see Solis v Canada (Minister for Citizenship and Immigration) (2000) 186 DLR (4th) 512 where the Federal Court of Appeal determined that the concept of citizenship has no meaning apart from statute. The applicant had argued that notwithstanding he was not a citizen under the Citizenship Act RSC 1985, he had an independent charter-based right to be considered a citizen largely because of his family ties and roots in Canada. An application for leave to appeal to the Supreme Court of Canada was dismissed on 23 November 2000 without reasons (Court File No 27947). 6 As discussed in greater detail as the subject matter of Chapter 2. 7 See Chapter 2 at [2.120]. 8 And, indeed, are addressed further at [6.40]. 9 See also Taylor, “Citizenship Rights and the Australian Constitution” (2001) 12 Public Law Review 205. Leslie Zines also discusses the constitutional implications on citizenship of the sovereignty of the people in Zines, “The Sovereignty of the People” in Coper and Williams (eds), Power, Parliament and the People (1997), p 100. 10 See discussions in Chapters 1 at [1.20] and 5 at [5.50], [5.130], [5.270]-[5.280] about the normative notion of citizenship. 11 Pillai discusses the possible bases of a form of “constitutional” Australian citizenship in her article “Non-Immigrants, Non-Aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited” (2013) 39(2) Monash University Law Review 568.

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aspirational statement about citizenship, and without a bill of rights, the Constitution gives no guidance as to which notions of citizenship apply, and when. This is not to deny the constitutional importance of a person’s “civil status”.12 In fact, Gaudron J was at pains to point out in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 that “there could hardly be an issue of more fundamental importance than that of a person’s constitutional status”.13 However, the constitutional status being discussed was of an “alien” rather than a “citizen.”14 Nevertheless, there have been constitutional questions that have prompted the court to discuss citizenship. This section focuses on these discussions. Section 44 of the Constitution provides the court with such a context since it contains the only reference to “citizen” in the Constitution – that is, the “citizen of a foreign power”. Section 117, with its prohibition on discrimination against “subject[s] of the Queen” on the basis of their State of residence, provides another. Notions of citizenship and membership have been crucial to interpreting the “aliens and naturalization” power in s 51(xix). This section will also examine implied constitutional rights and other protections.15

Section 44 of the Constitution and citizenship [6.30] Section 44 of the Constitution disqualifies a person who is “a citizen of a foreign power” from membership of the Federal Parliament. The leading case examining the section and the meaning of “citizenship”, Sue v Hill (1999) 199 CLR 462, disqualified Senator-elect Heather Hill from her parliamentary position. The High Court found that Hill was ineligible for election as she was a British citizen at the time of her nomination and Britain was a foreign power for the purpose of s 44. The new status of Australian citizen played a part in that development. In Sue v Hill, Gaudron J identified the change in the meaning of the status of “British subject” in the transformation of the relationship between the

12 This is the term used by Gummow and Hayne JJ in their joint judgment in Re Patterson; Ex parte Taylor (2000) 207 CLR 391 at 438, [141]. 13 Re Patterson; Ex parte Taylor (2000) 207 CLR 391 at 409, [40]. 14 For a brief discussion of the historical, constitutional and legal focus on “alienage” rather than “citizenship” in Australia, see Rubenstein and Field, “Who We Are Not Is Not Who We Are: Australia’s Exclusionary Approach to Citizenship” in Douglas and Wodak (eds), Refugees and Asylum Seekers: Finding a Better Way (2013) p 88. See also Rubenstein “Looking for the “Heart” of the National Political Community: Regulating Membership in Australia” (2007) 9 UTS Law Review 84. 15 It is anticipated that, when used, the 2015 amendments to the Australian Citizenship Act (2007) regarding loss of citizenship for dual citizens will likely lead to a constitutional challenge and another occasion for the court to examine constitutional questions around citizenship and alienage: see further at [6.120].

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United Kingdom and Australia.16 Gaudron J highlighted that British subjects became citizens of the independent nation-states into which the British Empire was transformed. Furthermore, the removal of the British subject status by amendment to the legislation in 1984, taking effect in 1987, meant that from that time on Australians were solely Australian citizens. As Gaudron J stated (at 528): That process, both in this country and the United Kingdom, renders the constitutional references to “a subject of the Queen” of little or no significance in determining whether the United Kingdom is now a foreign power.

Thus, the introduction of citizenship as a “legal status” is viewed by the court as a fundamental step in Australia’s independence as a nation, bestowing upon citizenship an important republican dimension.17

Section 117 of the Constitution and citizenship18 [6.40] The court’s closest attempt at discussing membership of the Australian community in a constitutional context has been in considering s 117, which demands: A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be applicable to him if he were a subject of the Queen resident in each other State.

In Street v Queensland Bar Association (1989) 168 CLR 461, the court broadened its interpretation of s 117 by dropping clues as to its view of citizenship as membership. Mason CJ saw s 117 as designed to enhance “national unity and a real sense of national identity” (at 485) while not directly discussing the meaning of “citizenship”. Brennan J deemed it unnecessary to determine whether the term is synonymous with “Australian citizen”, and referred to the Convention Debates where the term was consciously left open (at 505). However, Deane J made explicit use of the term “citizen”, stating (at 522) that the operation of s 117 is to “protect the citizen resident in one State from being subjected in another State to ‘disability or discrimination’”. More fundamentally, the section is, in his view, directed to the “promotion of national economic and social cohesion and the establishment of a national citizenship” (at 522). Thus, Deane J sought to 16 Sue v Hill (1999) 199 CLR 462 at 527, fn 228. See also discussion of this in Chapter 3 at [3.20]. 17 The court has also found the creation of the legal status of Australian citizenship to be significant in determining whether British subjects resident in Australia at the time of the legislative removal of the status were “aliens” for the purposes of s 51(xix) of the Constitution, in determining Parliament’s power to deport aliens under the Migration Act 1958 (Cth). This is discussed below at [6.50]. 18 For broader discussions about s 117, see Lee and Paterson, “Australian Nationhood in the Constitutional Interpretation of Section 117” (2000) 8 Asia Pacific Law Review 169; Mathieson, “Section 117 of the Constitution: The Unfinished Rehabilitation” (1999) 27 Federal Law Review 393; Ebbeck, “The Future for Section 117 as a Constitutional Guarantee” (1993) 4 Public Law Review 89 and “Section 117: The Obscure Provision” (1991) 13 Adelaide Law Review 23.

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use s 117 to influence the shape of Australian citizenship. The equation of citizenship and equality was also a theme of Dawson J, who (at 541) viewed s 117 as ensuring that persons from one State are treated in another “as citizens of the one nation, not as foreigners”. What was not resolved in this case is very important in determining the breadth of citizenship. “Whether a person living in Australia, but not a natural born or naturalized Australian citizen, is entitled to the protection accorded by s 117 is a matter to be considered when the occasion arises”, Toohey J stated (at 554). This was considered by McHugh J in Re Patterson; Ex parte Taylor (2001) 207 CLR 391,19 a case which revisited the meaning of “alien” in s 51(xix) of the Constitution.20 McHugh J was of the view that “subject of the Queen” in s 117 has evolved to mean “subject of the Queen of Australia” (at [131]),21 and that once it was accepted that a particular person was a “subject of the Queen of Australia”, they were deserving of s 117 protection. McHugh J stated (at [132]): It is not a question of Australian citizenship – a term that the Constitution does not use – but of the distinction that the Constitution draws between a subject of the Queen and one who is not, that is to say, an alien.

However, there has not been agreement in the High Court about who is to be accepted as a “subject of the Queen of Australia”, and who is an alien for the purposes of the Constitution. In Re Patterson; Ex parte Taylor (2001) 207 CLR 391, those British subjects who were born in the United Kingdom and living in Australia at the commencement of the Royal Style and Titles Act 1973 (Cth) became, in McHugh J’s view, subjects of the Queen of Australia as well as subjects of the Queen of the United Kingdom, and were therefore protected by s 117.22 However, the majority departed from this approach in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, where Gleeson CJ, Gummow, Hayne and Heydon JJ held that all persons, whether British subjects or not, who entered Australia after the commencement of the Citizenship Act 1948 (Cth) on 26 January 1949, were aliens for the purposes of s 51(xix) if they were born outside Australia to non-citizen parents and had not been naturalised.23 Thus, all non-citizens were aliens. In respect of s 117, the court commented: 19 Decision 6 September 2001. 20 See immediately below at [6.50]. 21 This view was also adopted by Gleeson CJ, Gummow and Hayne JJ in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, where they stated (at [20]): “‘subject of the Queen’, with its implicit reference to notions of sovereignty, must recognise that at least by 1948 the subjects of the Queen to which reference was made were subjects of the monarch in right of Australia, not subjects of the monarch in right of the UK”. 22 Indeed, they were not aliens for the purpose of the Constitution, as discussed below at [6.50]. 23 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43, [32].

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This [section] operates in favour of “[a] subject of the Queen, resident in any State”. The Citizenship Act no longer provides for any status of “British subject”. Nor has the law of the UK, since 1 January 1983, used the term as a status enjoyed in relation to citizenship. Does this mean that, like the expression in the Schedule to the Constitution, “the United Kingdom of Great Britain and Ireland”, s 117 is to be read as it would have been read in 1901? The answer must be “no”, lest the section be deprived of any useful operation. The reading of the text should accommodate the evident purpose of s 117 in present conditions. That purpose is the protection of citizens (but not aliens) resident in one state against the relevant disability or discrimination in another state. The conclusion reached is that the applicant entered Australia as an alien in the constitutional sense.24

Thus, in Shaw, the High Court equated citizenship with the status of subject of the Queen of Australia. According to the joint judgment, only Australian citizens are protected by s 117. However, the boundaries of s 117 have not been tested since.

Section 51(xix) and citizenship [6.50] The court has dealt with the consequences of citizenship most directly in immigration and deportation cases, similar to the cases in the first 50 years of the century.25 Aliens are subject to Commonwealth control by virtue of s 51(xix) of the Constitution, which refers to “naturalization and aliens”. This head of power has been used by the government, and has been interpreted by the High Court, to give the Commonwealth almost complete control26 over laws relating to aliens. The power is plenary.27 The regulation of immigration through this power28 is the clearest expression of membership of the community since it practically determines who in fact is present within the country29 and maintains control over those people who do not take up Australian citizenship.

24 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43, [30]–[31] (citations omitted). 25 As discussed in more detail in Chapter 3 at [3.100]. Since the Migration Act 1958 (Cth) was amended, restricting judicial review rights of non-citizens, there are more cases reviewing decisions under the Migration Act 1958 (Cth) where the High Court is exercising its original jurisdiction. This has increased the appearance of the word “citizen” in High Court judgments. 26 While this is a plenary power, the Commonwealth Government is still restricted by other notions protected by the Constitution, such as separation of powers and responsible government. 27 See McHugh J in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 424 [99]. 28 As opposed to s 51(xxvii), “immigration and emigration”. 29 The Executive’s power to control entry into the country was clearly established by the High Court in Robtelmes v Brenan (1906) 4 CLR 395. As Catherine Dauvergne argues, migration law is more important than citizenship law for the question of who can

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Section 51(xix) and control over non-citizens [6.60] One of the most dramatic cases to display the government’s power over non-citizens and the different legal rights of citizens and non-citizens is Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim). The court upheld the power of the executive under the Migration Act 1958 (Cth)30 to detain an alien held in custody for the purposes of expulsion or deportation. Such authority constituted an incident of executive power.31 This decision was not entirely surprising, as detention had long been upheld by the Australian courts as a necessary consequence of the power to deport. An earlier decision referred to in Lim was Koo Wing Lau v Calwell (1949) 80 CLR 533, which was a Wartime Refugees Removal Act 1949 (Cth) case dealing with the deportation of prescribed persons.32 However, in Al-Kateb v Godwin (2004) 219 CLR 562 this power was found to extend even further. In that case, the High Court upheld the indefinite detention of a stateless non-citizen, on the grounds that he was an alien. McHugh J commented: Under the aliens power, the Parliament is entitled to protect the nation against unwanted entrants by detaining them in custody. As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by Parliament is not examinable in this or any other domestic court. It is not for courts … to determine whether the course taken by Parliament is unjust or contrary to basic human rights.33

Importantly, the court has clearly acknowledged that administrative detention of citizens would be unconstitutional: It would … be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody … [T]he involuntary detention of a citizen in custody by the State is penal or punitive in

become an Australian citizen: Dauvergne, “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23 and “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280. 30 Migration Act 1958 (Cth) ss 54L and 54N as they then were. 31 Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 10 per Mason CJ, at 32 per Brennan, Deane and Dawson JJ, at 47 per Toohey J, at 58 per Gaudron J and at 64 per McHugh J. 32 See discussion of Brennan, Deane and Dawson JJ in Lim (1992) 176 CLR 1 at 31. For a critique of this approach, see Crock, “Climbing Jacob’s Ladder: The High Court and the Administrative Detention of Asylum Seekers in Australia” (1993) 15 Sydney Law Review 338 at 349. 33 Al-Kateb v Goodwin (2004) 219 CLR 562 at 595, [74].

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character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.34

This highlights a fundamental difference in the rights of citizens and non-citizens.35 The Parliament’s far-reaching powers to detain and deport “aliens” act as an extremely effective tool by which it can control membership of the Australian community. This has rendered the meaning of the term “aliens” very important in determining who is Australian, and this meaning has changed over time.

Meaning of “aliens”36 [6.70] In Pochi v Macphee (1982) 151 CLR 101, the High Court confirmed that the power to define the meaning of “aliens” is in Australian hands and denied that English law governed the question. As Gibbs CJ pointed out (at 109): If English law governed the question who are aliens within s 51(xix) almost all Australians born in Australia would in future be aliens within that provision. The absurdity of such a result would be manifest.37

In an obiter statement, Gibbs CJ also stated (at 109–110) that aliens were “person[s] born outside Australia whose parents were not Australian and who [have] not been naturalized as an Australian”. The majority in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 (Nolan) confirmed Gibbs CJ’s definition of an “alien” and added persons who have “ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage”.38 It appears that the High Court has now accepted the Nolan approach. In Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, the majority stated that:

34 Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ. Note there are some qualifications to this general proposition, such as the power to detain citizens for the purpose of arrest and warrant and in cases of mental illness or infectious disease: see Lim at 28–29 per Brennan, Deane and Dawson JJ. 35 The extent of the executive’s power over non-citizens has also been raised in a Federal Court matter. In Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 182 ALR 617; [2001] FCA 1297, North J held that asylum seekers aboard the MV Tampa were unlawfully detained by the Executive. In Ruddock v Vadarlis (2001) 183 ALR 1; [2001] FCA 1329, the Full Court by a 2:1 majority overturned North J’s decision and held that the Commonwealth was acting within its executive power under s 61 of the Constitution in the steps it took to prevent the landing of the asylum seekers. An application for special leave to appeal this decision was dismissed by the High Court of Australia: Vadarlis v Minister for Immigration and Multicultural Affairs (M93, 27 November 2001). 36 The meaning of “aliens” is discussed in detail in Chapter 4 at [4.40] and [4.130]. 37 This was affirmed in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178; see especially at 189 per Gaudron J. 38 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183.

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the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised.39

This definition includes non-citizens who are “British subjects”.40 It has subsequently also been found to extend to certain people who were born within Australia. These categories will be discussed below. It is also worth noting that a subsequent personal history in Australia does not extinguish a person’s status as an “alien” in this country.41 British subject “aliens” [6.80] The definition of “aliens” in s 51(xix) of the Constitution has also been considered by the High Court in the context of the changed relationship between Australia and England and the common heritage of being “British subjects”. In several cases, non-citizens who were about to be deported under the Migration Act 1958 (Cth) sought to prevent their deportation by arguing over the constitutional definition of “aliens” because of their British subject status.42 The relationship between England and Australia, and Australia’s steps towards independence as a sovereign nation, have complicated the meaning of the term “alien”. High Court authority has not always been consistent on this point. However, the current position appears to be that set out by the majority in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178: A separate Australian citizenship was established by the Nationality and Citizenship Act 1948 (Cth), now known as the Australian Citizenship Act 1948 … The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject or a subject of the Queen by reason of his birth in another country could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an “alien”.43

Thus, the High Court has refused to recognise a form of constitutional citizenship outside the Australian Citizenship Act 2007 (Cth) or its 1948 precursor. Children born in Australia, Papuans who were formerly Australian citizens, and British subjects have no special status. The High Court has recognised that it is the Parliament that has the power to decide 39 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43, [32]. 40 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. The status of British subjects is discussed at [6.80]. 41 See Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162. 42 These cases involved a range of arguments linked to British subject status. This material is also covered in Chapter 4 in the discussion on “British subject” at [4.40] and [4.130]. 43 Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 184, quoted with approval in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 45, [37].

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who is an alien for the purposes of s 51(xix) of the Constitution. In the absence of a specific head of power over citizenship, Parliament’s authority to determine who is a member of the Australian community stems directly from the breadth of its power over “aliens”. Australian-born “aliens” [6.90] In the last decade, a line of authority has established that “alien” status is not restricted to those born out of Australia. Children born in Australia to parents who are not citizens or permanent residents may also be aliens. In addition, the special case of Papuans losing their Australian citizenship upon Papuan Independence in 1975 highlights that even existing Australian citizens may become aliens if Parliament intends it. This will be relevant to any matter that may come before the High Court pursuant to the 2015 amendments to the Australian Citizenship Act 2007 (Cth) enabling Australian-born citizens to be stripped of their Australian citizenship if they are dual citizens, in certain circumstances.44 Children born in Australia to non-resident parents [6.100] In Singh v Commonwealth (2004) 222 CLR 322 (Singh), the High Court found a child born and raised in Australia was an alien due to her citizenship of and allegiance to a foreign state. The five-year-old applicant in Singh was born in Victoria to Indian parents, who did not hold Australian citizenship or permanent residency. The applicant had lived her whole life in Australia. However, she did not hold a permanent visa and she was going to be deported pursuant to the Migration Act 1958 (Cth).45 The High Court held 4:3 that she could validly be deported as an “unlawful non-citizen”. The joint judgment stated: [T]he meaning of “aliens” was conveniently described in the joint reasons of six members of the Court in Nolan v Minister for Immigration and Ethnic Affairs where it was said that “alien” “[u]sed as a descriptive word to describe a person’s lack of relationship with a country … means, as a matter of ordinary language, ‘nothing more than a citizen or subject of a foreign state’”. It was common ground that the plaintiff is a citizen of India. She is, therefore, a citizen of a foreign state. She is a person within the naturalization and aliens power.46

More recently, the High Court confirmed that even children who have not attained foreign citizenship may be aliens. Koroitamana v Commonwealth (2006) 227 CLR 31 (Koroitamana) involved two children born in Australia to Fijian parents. The children had never left Australia and, though entitled to be registered as citizens of Fiji, their parents had elected not to do so. They argued that they were not aliens and thus not liable to deportation. However, the High Court considered it “inherent in the 44 See further at [6.120] and the discussion in Chapter 4 at [4.1160] about these changes. 45 Migration Act 1958 (Cth) s 198. 46 Singh v Commonwealth (2004) 222 CLR 322 at 400 (citations omitted).

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outcome of Singh that the majority of this Court rejected a constitutional notion of Australian nationality defined by reference to a place of birth in Australia”.47 Indeed: [w]ithin the limits of the concept of “alien” in s 51(xix), it is for Parliament to decide who will be treated as having the status of alienage, who will be treated as citizens, and what the status of alienage, or non-citizenship, will entail.48

Birth in Australia does not exclude a person from being an “alien” for the purposes of s 51(xix). The cases of Singh and Koroitamana raised issues of Australian identity, and which children born in Australia should formally be regarded as Australians, rather than aliens.49 The court dismissed the argument that children born in Australia (and who had grown up here) deserved a special constitutional status. These children will only become citizens by virtue of their birth in Australia if they become eligible under the Australian Citizenship Act 2007 (Cth) – for example under s 12 – by living in Australia until their tenth birthdays.50 The special case of Papua [6.110] In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 (Ame’s Case), the High Court of Australia determined that Papuan Australians who formerly held the legal status of citizen under the Australian Citizenship Act 1948 (Cth) from 1949 until 1975, could have that status unilaterally stripped from them by Australian regulations.51 The applicant, Amos Bode Ame, was born in Papua on 20 May 1967.52 Papua gained Independence on 16 September 1975. Ame first entered Australia on 3 December 1999 and the case involved him challenging his deportation pursuant to the Migration Act 1958 (Cth) for overstaying his visa. Mr Ame argued that his Australian citizenship did not cease by 47 Koroitamana v Commonwealth (2006) 227 CLR 31 at 49. 48 Koroitamana v Commonwealth (2006) 227 CLR 31 at 38, citing Singh v Commonwealth (2004) 222 CLR 322 at 329. 49 See Prince, “We are Australian: The Constitution and Deportation of Australian-born Children”, Parliament of Australia, Research Paper No 3, 2003-04 (24 November 2003): this article, written before the Singh decision was handed down, contains an extensive discussion of this point. 50 The operation of s 12 of the Australian Citizenship Act 2007 (Cth) is discussed in Chapter 4 at [4.240]. 51 For a discussion of the case, see Rubenstein and Lenagh-Maguire, “Thick and Thin Citizenship as Measures of Australian Democracy” in Patmore and Rubenstein (eds) Law and Democracy: Contemporary Questions (2014). 52 At the time, Papua was administered by Australia as a Possession of the Crown and was part of “Australia” for the purposes of the Citizenship Act. Under the Citizenship Act, people born in Papua after its commencement on 26 January 1949, such as Mr Ame, acquired the status of Australian citizen by birth. Mr Ame was eight years old when Papua New Guinea gained Independence, on 16 September 1975, through Australian legislation titled the Papua New Guinea Independence Act 1975 (Cth).

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operation of Australian regulations in 1975. Mr Ame’s claim was that if citizenship was to have any legal significance or meaning (as it was a legal, statutory term) it could be argued he had a “right”, indeed a valid constitutional claim, to live in Australia back in the 1970s even if that had not been asserted at the time. Mr Ame argued that because he was a citizen of Australia at birth, he had a right to live anywhere in the country and could not be deported.53 The High Court did not agree, pointing out that, while Mr Ame had been born in “Australia” for the purposes of the Citizenship Act 1948 (Cth), the definition in the Migration Act 1958 (Cth) did not include external Territories such as Papua. The court held that “whilst Papuans in the Territory of Papua before Independence Day enjoyed, by Australian law, a form of Australian citizenship it was not, in fact or law, full or real citizenship”.54 The court concluded that the removal of Mr Ame’s citizenship in 1975 was authorised by s 51(xix) of the Australian Constitution because people such as Mr Ame who were legally “Australians” but were about to become foreign nationals could be treated as “aliens”, including taking their Australian citizenship away. Thus, people born in the Australian Territory of Papua between 1948 and 1975 were, until 1975, formally Australian citizens, but were afforded limited rights before 1975. After 16 September 1975, these former citizens became “aliens” by operation of Australian legislation and the Constitution of Papua New Guinea. Mr Ame had no right to enter or remain in Australia without a visa and could validly be deported.55 At least in the context of Papuan Australian citizens, Ame’s Case establishes that alienage is a status that can be bestowed upon individuals unilaterally by the Australian Government.56 Dual citizens as aliens? [6.120] Uncertainty also arises for dual nationals, who owe allegiance to another sovereign, and stateless persons, who lack formal allegiance to Australia.57 These individuals may be “aliens” for the purposes of s 51(xix), but the extent of Parliament’s powers over them is not certain. 53 See Re MIMIA; Ex parte Ame [2005] HCATrans 66 (3 March 2005). 54 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at 471. 55 This case is discussed in detail in Rubenstein, “Advancing Citizenship: The Legal Armory and its Limits” (2007) 8 Theoretical Inquiries in Law 509. See also Rubenstein and Lenagh-Maguire, “Thick and Thin Citizenship as Measures of Australian Democracy” in Patmore and Rubenstein (eds), Law and Democracy: Contemporary Questions (2014). 56 Note that s 21(7) of the Australian Citizenship Act 2007 (Cth) now provides for a conferral of Australian citizenship on a person born in Papua before 16 September 1975 who had an Australian citizenship parent. This provision is discussed in Chapter 4 at [4.740]. 57 For discussion, see Foster, “Membership in the Australian Community: Singh v The Commonwealth and its Consequences for Australian Citizenship Law” (2006) 34 Federal

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The Parliament has sought to rely on this power over dual citizens with the introduction of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) enabling dual citizens to be stripped of their Australian citizenship in certain circumstances.58 As McHugh J explained in Re Patterson; Ex parte Taylor (2001) 207 CLR 391, “as long as a person falls within the description of ‘aliens’, the power of the Parliament to make laws affecting that person is unlimited unless the Constitution otherwise prohibits the making of the law”.59 Would this sentiment also apply if the person who is an alien is also an Australia citizen – and an Australian citizen by birth? These are matters that are still to be tested before a future Bench of the High Court of Australia if the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) is used to strip such a person of Australian citizenship, and if the amendment Act is challenged as unconstitutional.60

Implied constitutional rights and citizenship61 [6.130] As the Constitution does not have a bill of rights,62 there is no explicit list of constitutional rights a person may identify immediately as “citizenship rights”.63 However, citizenship and political membership have been relevant to the court in its discussion of implied constitutional rights. Most significantly, the implied freedom of political communication has been linked to representative democracy, involving references to citizens’ rights under the Australian constitutional system.64 This highlights the political value of citizenship for the protection of implied constitutional rights. Law Review 161 at 178; and Prince, “Mate! Citizens, Aliens and “Real Australians” – The High Court and the Case of Amos Ame”, Department of Parliamentary Services, Parliamentary Research Brief No 4 2005-06 (27 October 2005). See also Rubenstein, “From Supranational to Dual to Alien Citizen: Australia’s Ambivalent Journey” in Bronitt and Rubenstein (eds), Citizenship in a Post-National World Australia and Europe Compared (2008) p 1. 58 For further discussion of these amendments, see Chapter 4 at [4.1350] and Chapter 7. 59 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [104]. 60 In relation to this new provision, see the discussion in Chapters 1 at [1.60] and 4 at [4.80]. 61 Parts of this section also appear in Chapter 5 at [5.210]. 62 There are some constitutional rights articulated in the Constitution. For instance, s 41 (the right to vote) – although note the discussion about this regarding the limited nature of the right, below at [6.180] (fn regarding s 41) – s 51(xxxi) (Commonwealth not to acquire property except on just terms); s 80 (Trial by jury); s 92 (Freedom of trade); s 116 (Freedom of religion); s 117 (Freedom from discrimination on the basis of State residence). See further, Williams and Hume, Human Rights under the Australian Constitution (2nd ed, 2013). 63 See discussion in Chapter 7 at [7.50] regarding the possible inclusion of such a list in the future. 64 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 72 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 139 per Mason CJ, at 174 per Deane and Toohey JJ, at 212 per Gaudron J, at 231 per McHugh J; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559–560.

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The breadth of this protection under the Constitution was raised in obiter discussion in Cunliffe v Commonwealth (1994) 182 CLR 272 (Cunliffe) and provides further insight into the legal consequences flowing from citizenship. This question arose in a migration law case involving the Migration Act 1958 (Cth), amended65 to include a section imposing restrictions on the giving of “immigration assistance”.66 Only registered agents could legally provide immigration assistance,67 with harsh penalties applying for breach of that section.68 Cunliffe, a solicitor, challenged the Act on the question of free speech.69 In the discussion about implied rights, some of the judges addressed the question of their extension to non-citizens. Mason CJ was the only judge to embrace the idea that non-citizens in Australia were entitled to the protection afforded by the Constitution and the laws of Australia.70 Relying on Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 521–522, he said (at 299) that non-citizens within Australia were entitled to invoke the implied freedom of communication: particularly when they are exercising that freedom for the purpose, or in the course, of establishing their status as entrants and refugees or asserting a claim against government or seeking the protection of the government.

This distinction means there are different legal consequences flowing from citizenship. Brennan J grounded this distinction in the notion of representative democracy, stating (at 328) that aliens “have no constitutional right to participate in or to be consulted on matters of government in this country” and that the “Constitution contains no implications that the freedom is available to aliens who are applying for or who have applied for visas … Nor is there any basis for implying that aliens have a constitutional right”. More specifically, he stated (at 328) that “if the Constitution implies a right of access to government or to the repositories of statutory power … it would be a citizen’s right”.71 Crucially, the right to participate in government, and to be consulted about and in its deliberations, is central to citizenship. If a person does not have the right to vote (although there is no exact correspondence between voting and citizenship) then he or she does not have the right to rely on the constitutional protection of free speech in trying to invalidate a law. 65 Migration Amendment Act (No 3) 1992 (Cth). 66 Section 114B of the Migration Act 1958 (Cth) as numbered at that time: now Migration Act 1958 (Cth) s 276. 67 Barristers and solicitors are exempt under s 277 in relation to court proceedings only. 68 Monetary sum of $5,000: see s 280. Also note the risk of imprisonment of ten years for charging or receiving fees without being registered: see s 282. 69 The other challenges were that there was no constitutional head of power for the Commonwealth to legislate and it infringed s 92 of the Constitution because it impinged freedom of intercourse between the States. 70 Cunliffe v Commonwealth (1994) 182 CLR 272 at 299. 71 Cunliffe v Commonwealth (1994) 182 CLR 272 at 299.

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Deane J accepted part of Mason CJ’s argument, that non-citizens could rely on the ordinary law, and included in this some of the Constitution’s guarantees, directives and prohibitions,72 but declared (at 336) that a non-citizen: stands outside the people of the Commonwealth whose freedom of political communication and discussion is a necessary incident of the Constitution’s doctrine of representative democracy. That being so the incident does not operate to directly confer rights or immunities upon an alien. Any benefit to an alien must be indirect in the sense that it flows from the freedom or immunity of those who are citizens.73

Deane J noted that the effect of this distinction might be of no practical consequence. However, the significance is extreme in determining rights flowing from citizenship. Another case reflecting the lack of constitutional protection of citizenship rights and the link between political rights and citizenship is Kruger v Commonwealth (1997) 190 CLR 1 (the Stolen Generations Case). A number of adult Aboriginals sued the Commonwealth for their removal from their families under Northern Territory legislation. Part of their claim was that the laws were invalid as they were contrary to various implied constitutional freedoms, including the freedom of movement and association. McHugh J argued (at 142) that the implication of freedom of political communication also implied that “the people” be free from laws preventing them from association with other persons, and from travelling inside and outside Australia for the purpose of voting and other matters relevant to freedom of communication. However, as the residents of the Northern Territory were not part of the “constitutionally prescribed system of government or in the procedure for amending the Constitution” and, as Aboriginal people did not have a right to vote in a federal election during the life of the legislation under challenge, freedom of association did not extend to residents of the Northern Territory (at 142–143). Therefore, only those who voted were entitled to a freedom of association linked to representative democracy. Conversely, Gaudron J argued that precisely because the residents of the Territory had a limited political membership, they were in need of greater constitutional protection than other Australians.74 In her view (at 106–107), s 122 of the Constitution75 “should be construed on the basis it was not intended to extend to laws authorising gross violations of human rights and dignity contrary to established principles of common law”. 72 Sections 80, 92, 116. 73 Cunliffe v Commonwealth (1994) 182 CLR 272 at 336. 74 I am grateful to Professor Tony Blackshield for highlighting this point for me in my preparation of “Citizenship” in Blackshield, Coper and Williams (eds), The Oxford Companion to the High Court of Australia (2001). 75 Section 122 gives the Commonwealth power to make laws for the Territories.

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From Gaudron J’s perspective, all those without voting rights, including non-citizens, would be deserving of such protection. What is also striking is that citizenship was not central to this case where human rights and citizenship are essential in normative terms. As Toohey J specifically stated (at 96), “there is nothing in the Constitution which excludes Aboriginals from citizenship. Their exclusion from citizenship rights, in particular voting rights, was the result of legislation”. The bigger picture, however, reveals no protection of any citizenship rights, whether for Aboriginal Australians or more broadly. The concept is without constitutional foundation and, as such, the High Court has been constrained from using it in a normative and progressive manner.76

Other constitutional protections through Chapter III and section 75(v) of the Constitution [6.140] Chapter III and s 75(v) of the Constitution are also important when discussing rights protection under the Constitution. The court has not denied these constitutional protections to non-citizens only – they are restraints upon government in the exercise of its power generally. So, in Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, the court found unconstitutional a section of the Migration Act 1958 (Cth) involving the power of the court to review the lawfulness of the detention of non-citizens.77 Further, in Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82, Gaudron and Gummow JJ, citing Deane and Gaudron JJ in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 204–205, state (at 56 (emphasis added)): [T]aken together, s 75(iii) and (v) had the effect of ensuring “that there is available to a relevantly affected citizen a Ch III court with jurisdiction to grant relief against an invalid purported exercise of Commonwealth legislative power or an unlawful exercise of, or refusal to exercise, Commonwealth executive authority”.

While the judges have used the word “citizen” here, they are not referring to legal citizens, as they are not the only people deserving or entitled to rely upon Ch III and s 75. Rather, they are using the word “citizen” as a person deserving of rights – whether he or she be a citizen, permanent resident or even unlawful non-citizen, as is the case with many refugee

76 For a Canadian analysis of the role of the Canadian Supreme Court and Aboriginal peoples, see Borrows, “Uncertain Citizens: Aboriginal Peoples and the Supreme Court” (2001) 80 Canadian Bar Review 15. 77 However, note Crock’s critique of the limited practical value of this decision: Crock, “Climbing Jacob’s Ladder: The High Court and the Administrative Detention of Asylum Seekers in Australia” (1993) 15 Sydney Law Review 338 at 349.

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applicants.78 There are many more instances in which “citizen person” is used over formal “legal citizen”, as explained further in this chapter at [6.250].

CITIZEN AS LEGAL CITIZEN Non-constitutional rights of legal citizens [6.150] In addition to the constitutional cases in which discussion of rights has occurred, there are several cases where the court has determined rights of citizenship without any clear sense of the source of these rights. For instance, in Air Caledonie International v Commonwealth (1988) 165 CLR 462 (Air Caledonie), the High Court affirmed that citizenship status provides a person with a right of entry to Australia. The decision struck down as unconstitutional a charge imposed on international airline passengers entering Australia. Relevant to the jurisprudence of citizenship is the court’s statement that “[t]he right of the Australian citizen to enter the country is not qualified by any law imposing a need to obtain a licence or ‘clearance’ from the Executive” (at 469). This “right” of re-entry by Australian citizens is not a specific constitutional right, and there is no reference in the case as to where this right originates, so it may be best characterised as a common law right of citizenship. A similar analysis applies to Gaudron J’s judgment in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 303–305 (Teoh), another migration law case involving deportation and questions of procedural fairness. Gaudron J concentrated on the citizenship status of the deportee’s children (at 304): Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings, which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society.

In Gaudron J’s view (at 304): [C]itizenship carries with it a common law right on the part of the children and their parents to have a child’s best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments … directly affect[ing] that child’s individual welfare. 78 Judicial review is another area in which non-citizens are practically denied equal access to justice through the provisions of the Migration Act 1958 (Cth) restricting rights of review. Statutory mechanisms of judicial review through the Administrative Decisions Judicial Review Act 1977 (Cth) have been denied in the migration jurisdiction. However, those persons affected by the Migration Act 1958 (Cth) are still entitled to the constitutional protection of s 75(v), discussed in this section.

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The opinion is confined to the legal notion of citizenship, which arose due to the Australian citizenship status of the children. It would not have been relevant if the children were not citizens. The view is unique as it identifies citizenship as a fundamental source of rights not otherwise articulated.79 However, in both Air Caledonie and Teoh the relevant right is reserved for legal citizens. In DJL v Central Authority (2000) 201 CLR 226, the applicant sought to rely on the above two cases to establish a right of citizenship, protecting her Australian citizen child from compulsory return overseas under the Family Law Act 1975 (Cth). The Act gives effect to the Hague Convention on the Civil Aspects of International Child Abduction. In rejecting this argument, Kirby J stated (at 279–280): Citizenship involves duties and obligations lawfully imposed in addition to the ordinary entitlement to reside in, depart from and return to Australia. In Air Caledonie, the Court made it clear that the right of a citizen to re-enter the country was one which was enjoyed “under the law”. At least where the law which provides for the removal of a citizen is of the kind found in the Regulations, in turn giving effect to international law, no question of constitutional invalidity arises.80

Thus, legal citizens do not have an absolute right to remain in the country; this right is qualified by other laws such as the Family Law Act 1975 (Cth) and the Extradition Act 1988 (Cth).81 However, as Kirby J notes in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 492, this can only be done after due process of law and, in the case of extradition, by a judicial order.

Legislative rights of legal citizens [6.160] As discussed in Chapter 5, several Acts discriminate in favour of citizens over non-citizens. The court has commented on some of those Acts in a variety of cases. Some of them are highlighted here to further develop the legislative consequences of citizenship.

Voting rights [6.170] Citizenship is the necessary qualification for voting under the Commonwealth Electoral Act 1918 (Cth), although Australia’s links to Britain are still seen in the Act as British subjects enrolled immediately before 26 January 1984 are entitled to remain on the electoral roll. To this 79 An interesting comparison of the use of citizenship as a source of rights can be seen in the international law framework: see further, Rubenstein and Adler, “International Citizenship: The Future of Nationality in a Globalized World” (2000) 7 Indiana Journal of Global Legal Studies 519. A recent United Kingdom case rejected the proposition a “common citizenship” is a necessary component of family life for the purpose of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. See R (Montana) v Secretary of State for the Home Department [2001] FLR 449. 80 References omitted. All the judges agreed with Kirby J on this point. 81 See discussion in Chapter 5 at [5.190], and below at [6.230].

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extent, political membership in Australia is greater than citizenship.82 This greater political membership was discussed in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 where Taylor had relied on his status as an “elector”83 to argue that he was not an alien for the purpose of the Constitution.84 The only judge to directly deal with this argument was Kirby J, who found that being an elector was not conclusive of the matter and stated (at [305]) that “[n]ationality is usually, but not always, a requirement for voting rights”.85 Voting is a “duty” in the Australian political system. Compulsory voting was introduced in the federal electoral system in Australia in 1924.86 In Judd v McKeown (1926) 38 CLR 380, Judd sought special leave to review the divisional returning officer’s determination that he had failed to provide a “sufficient reason” for not voting, on the ground that the right to vote implies a right not to vote, and that the Commonwealth Electoral Act 1918, which prescribed the compulsory voting, was not a valid exercise of power under s 9 of the Constitution. Knox CJ, Duffy and Starke JJ held that the only constitutional restriction within s 9 was that the method of choosing senators had to be uniform for all the States. The closest general statement about the democratic system was made by Isaacs J. He stated (at 385) that the franchise was to be regarded as a right and referred to s 41 speaking of the right to vote. This did not, however, extend to a right not to vote. No further elaboration of the principle of representative democracy was made. Parliament’s prescription validly included compulsory voting.87 The right to vote [6.180] Just as voting is a duty in Australia, so too is it a “right” of citizens. It is not, however, an express constitutional right. There is no express statement of the right to vote save for s 41 of the Constitution.88 82 See discussion in Chapter 5 at [5.180] and [5.220]. 83 Kirby J discusses the constitutional status of the term “elector” in Patterson (2001) 207 CLR 391 at 480. 84 See discussion above at [6.40]. 85 Note that the Commonwealth Electoral Act 1918 (Cth) s 93(1)(b)(ii) provides for enrolment and voting by British subjects who were enrolled immediately before 26 January 1984. 86 Commonwealth Electoral Act 1924 (Cth) (No 10 of 1924). This Act amended the Commonwealth Electoral Act 1918 (Cth) for the purpose of introducing compulsory voting. Section 128A(1) stated that “[i]t shall be the duty of every elector to record his vote at each election”. 87 For a further discussion of citizenship and voting rights in Australia, see Rubenstein “Can the Right to Vote be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002” in Chesterman and Philips (eds), Selective Democracy: Race, Gender and the Australian Vote (2003). 88 Section 41 states that “[n]o adult person who has or acquires a right to vote at elections … of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth”.

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The High Court has recognised a constitutional right to vote based on the requirement that members of Parliament be “directly chosen by the people”.89 Two recent High Court cases have clarified the nature and extent of the constitutional right to vote,90 with the High Court making it clear that there are limits to Parliament’s ability to disqualify citizens from voting. In Roach v Electoral Commissioner (2007) 233 CLR 162, the High Court struck down amendments to the Commonwealth Electoral Act 1918 (Cth) which disqualified as voters persons serving any prison sentence.91 The court held that legislative disqualification from voting had to be for a “substantial reason” – that is, the reason had to be reasonably appropriate and adapted for an end that was consistent with maintaining our constitutionally prescribed system of representative government. Gleeson CJ considered that the constitutional requirement that senators and members of the House of Representatives be chosen “by the people” “have come to be a constitutional protection of the right to vote”.92 He found that these amendments cast the “net of disqualification” too wide.93 Nevertheless, existing provisions which disenfranchised prisoners serving sentences of three years or more were held to be valid;94 they were seen to have proper regard to the seriousness of the offence and appropriately used length of sentence as a “criterion of culpability” founding disqualification. Rowe v Electoral Commissioner (2010) 243 CLR 1 concerned legislation passed prior to the 2010 election which reduced the amount of time within which eligible persons could enrol to vote after the election was called. The High Court struck down the legislation as being inconsistent with the constitutional mandate of choice by “the people”. French CJ stated (at [18]): The content of the constitutional concept of “chosen by the people” has evolved since 1901 and is now informed by the universal adult-citizen franchise which is prescribed by Commonwealth law … [It has acquired] a 89 See ss 7 and 24 of the Constitution. For a full discussion of s 41 and the constitutional right to vote, see Twomey, “The Federal Constitutional Right to Vote in Australia” (2000) 28 Federal Law Review 125, especially at 143-151. 90 See Arcioni, “Democracy and the Constitution: The People Deciding the Identity of “The People”” in Patmore and Rubenstein (eds), Law and Democracy: Contemporary Questions (2014). 91 The amending provisions were contained in the Electoral and Referendum (Electoral Integrity and Other Measures) Act 2006 (Cth) which, relevantly, repealed and replaced ss 93(8AA) and 208(2)(c) of the Commonwealth Electoral Act 1918 (Cth). 92 Roach v Electoral Commissioner (2007) 233 CLR 162 at [7]. 93 Roach v Electoral Commissioner (2007) 233 CLR 162 at 202 [95] per Gummow, Kirby and Crennan JJ. 94 These provisions were enacted by the Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Act 2004 (Cth) and had replaced an earlier disqualification period of five years’ imprisonment.

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more democratic content than existed at Federation. That content, being constitutional in character, although it may be subject to adjustment from time to time, cannot now be diminished.95

The joint judgment of Gummow and Bell JJ adopted the reasoning and conclusion of Gleeson CJ in Roach v Electoral Commissioner (2007) 233 CLR 162 with respect to the universal adult franchise being constitutionalised.96 Crennan J also referred to Gleeson CJ in Roach,97 and concluded that “a fully inclusive franchise ––that is a franchise free of arbitrary exclusions based on class, gender or race” is now constitutionalised.98 Restrictions on the right to vote [6.190] Despite the constitutional basis of universal adult sufferage in Australia, not all Australian citizens have the “right” to vote. Eligibility to vote is bestowed by the Commonwealth Electoral Act 1918 (Cth). Voting is limited to persons who are 18 and over and who are Australian citizens, or those British subjects enrolled on the electoral roll before 26 January 1984. Over the years, Parliament has also sought to exclude certain groups of people from voting. For example, during World War I, the Commonwealth Electoral (War-time) Act 1917 (Cth) excluded from voting naturalised British subjects born in enemy territory subject to certain restrictions.99 As discussed above in the context of the Rowe and Roach decisions,100 the High Court has played an important role in clarifying the extent to which Parliament can disenfranchise Australian citizens, and this has changed over time. As Brennan J stated in McGinty v Western Australia (1926) 38 CLR 380 at 166–167: [I]n view of the fact that the franchise has historically expanded in scope, it is at least arguable that the qualifications of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote.

It is unclear whether it would be regarded by the High Court as unconstitutional to deny dual citizens, for instance, the right to vote in any future war or, indeed, whether current sections of the Commonwealth Electoral Act 1918 (Cth) which restrict the voting rights of Australian citizens residing outside Australia could be challenged as

95 Rowe v Electoral Commissioner (2010) 243 CLR 1 at 18 [18]. 96 Rowe v Electoral Commissioner (2010) 243 CLR 1 at 48–49 [123]. 97 Rowe v Electoral Commissioner (2010) 243 CLR 1 at 107 [328]. 98 Rowe v Electoral Commissioner (2010) 243 CLR 1 at 117 [368]. 99 See Twomey, “The Federal Constitutional Right to Vote in Australia” (2000) 28 Federal Law Review 125 at 151. 100 Rowe v Electoral Commissioner (2010) 243 CLR 1; Roach v Electoral Commissioner (2007) 233 CLR 162.

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unconstitutional.101 Certainly, in the international law context, Art 25 of the International Covenant on Civil and Political Rights mandates that every citizen shall have the right to vote “without unreasonable restrictions”.102 Arguably, the current franchise in Australia is not broad enough. For instance, the age limitation of 18 disenfranchises children. Indeed, it has been argued that “each and every child should possess the right to have their interests heard in our political process directly” and that “children’s suffrage – in an appropriate form – is a way to help bring this about”.103 Another sector of society less able to voice its political will is the homeless population. While s 96 of the Commonwealth Electoral Act 1918 (Cth) enables “itinerant electors” to enrol, only a small percentage do.104 Moreover, ss 94 and 94A of the Commonwealth Electoral Act 1918 (Cth) impose restrictions on Australians residing overseas to remain on the electoral roll. This has also disenfranchised a significant number of Australian citizens.105 In addition, there are those excluded by virtue of unsound mind, or through criminal action.106 These groups are excluded from political membership, even though they are Australian citizens and formal members of society. Historically, the disjuncture between citizenship and rights has also been clearly expressed

101 See ss 94 and 94A of the Commonwealth Electoral Act 1918 (Cth). These sections have been criticised as unreasonable by the Southern Cross Group, which is an international non-profit organisation founded in Brussels, Belgium in January 2000, consisting primarily of Australians and New Zealanders. It formed in response to a growing realisation that a number of issues impact negatively on individuals seeking to live and/or work effectively outside their country of nationality. See further, Chapter 5 at [5.220]. 102 Article 25 provides that “every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country”: International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976). 103 Gaughwin, “Victims of Growing Neglect”, The Australian (18 April 2001) p 11. 104 See Castles, “No Home, No Vote: How is that Fair?”, The Age (5 June 2001) p 15. 105 This point has been highlighted by the Southern Cross Group in its submission to the Department of Immigration and Multicultural Affairs regarding s 17 of the Australian Citizenship Act 1948 (Cth): see http://www.southern-cross-group.org. 106 Section 93(8) and (8AA) of the Commonwealth Electoral Act 1918 (Cth) explain that a person who has been convicted of treason or treachery and has not been pardoned is not entitled to have his or her name placed or retained on the federal electoral role. Section 93(8AA) states that a person serving a prison sentence of three years or longer is not entitled to vote in federal elections.

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through the denial of voting rights to Aborigines.107 Thus, the formal status of citizenship has not necessarily guaranteed rights of citizenship.108 Non-citizen residents and the right to vote [6.200] Why are some residents excluded from voting? Peter Schuck, in his evidence in the Canadian case of Lavoie v A-G (Canada) and Public Service Commission (Canada) (Lavoie),109 where discrimination on the basis of citizenship was examined,110 argues that citizenship is used to define the political community as a group – that is, those who have “undertaken mutual governance commitments to one another by virtue of their common national affiliation”.111 Therefore, residents who have not made a commitment through naturalisation are not within the political community. How does this argument sit, however, with natural-born citizens who do not make a conscious commitment to the political community but have citizenship bestowed upon them? Schuck argues that the natural-born citizen’s consent is implicit insofar as the “citizen fails to renounce his or her citizenship in favour of another allegiance (where renunciation is permitted)”.112 Other arguments against providing voting rights to non-residents include the questionable loyalty of residents to the country.113 Residents may be influenced by their allegiance to their own country of citizenship in making decisions about the governance of the country in which they reside. Yet dual citizens are entitled to vote in Australia. Could not a similar accusation be levelled against them?114 Joseph Carens has also argued that, “given citizenship is defined in political terms, it makes sense that distinctions should be made between citizens and non-citizens based on political functions”.115 As voting is 107 See discussion in Chapters 1, 3 and 4. 108 See Chesterman and Galligan, Citizenship without Rights: Aborigines and Australian Citizenship (1997). 109 In the Federal Court of Canada Trial Division (Court File Nos T-2479-90, T-1686-90) reported at [1995] FC 623, discussed further in Chapter 5 at [5.180]. The trial went on appeal and the appeal decision is Lavoie v Canada [2000] 1 CF 3. That decision also went on appeal to the Supreme Court of Canada: see Lavoie v Canada [2002] SCC 23. 110 This case concerns the constitutionality of discrimination against non-citizens. As equality principles are safeguarded in the Canadian Constitution, the comparison has certain limitations with Australia due to the lack of such a principle being enshrined in the Australian Constitution. It is discussed in greater detail in Chapter 5 at [5.180]. 111 Schuck testimony in Lavoie (on file with author) at [9]. 112 Schuck testimony in Lavoie (on file with author) at [9]. 113 See Harper-Ho, “Noncitizen Voting Rights: The History, the Law and Current Prospects for Change” (2000) 28 Law and Inequality: A Journal of Theory and Practice 271 where she lists a range of arguments specific to the political system of the United States. 114 Note, however, that this philosophy underpins s 44(i) of the Constitution, disqualifying dual citizens from becoming members of Parliament. See discussion at [2.190], [4.1290]–[4.1320]. 115 Carens’ testimony in Lavoie (on file with author) at [34].

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“intimately connected to the idea of democratic citizenship”,116 it is morally permissible, if “residents have proper access to naturalisation”,117 to distinguish between citizens and residents in voting rights. However, Ruth Rubio Marin argues that: all those who live on a permanent basis in a liberal democratic state ought to be considered as members of that democracy and thus share in the sphere of civic equality with the equal recognition of rights and duties.118

Therefore, they should be entitled to vote. Given that membership is a social fact – we determine who are members of a community primarily through social factors “such as living, working or raising a family and participating in the social and cultural life of a community”119 – then, morally, social members must also be entitled to full political membership and inclusion, she argues. While Australia is not unique in restricting the vote to citizens, there are jurisdictions that do allow non-citizen residents to vote. Closest to home, the Electoral Act 1993 (NZ) entitles permanent residents of New Zealand to be registered as electors.120 A permanent resident is someone who resides in New Zealand.121 New Zealand citizens and permanent residents must reside continuously in New Zealand for a period of not less than one year in order to be registered.122 In their recent article examining the 1975 decision to grant national voting rights to permanent residents, Fiona Barker and Kate McMillan refer to the democratic dimension of the decision and note that in a representative democracy like New Zealand, the “act of choosing political representatives is perhaps the defining characteristic of full membership of the constitutional ‘public’”.123 They argue that the decision reveals an “inclusive egalitarianism” which, while at the time was intended less for ethnic 116 Carens, “Citizenship and Civil Society: What Rights for Residents?” in Hanson and Weil (eds), Dual Nationality, Social Rights and Federal Citizenship in the US and Europe (forthcoming, draft on file with author) p 14. 117 Carens, “Citizenship and Civil Society: What Rights for Residents?” in Hanson and Weil (eds), Dual Nationality, Social Rights and Federal Citizenship in the US and Europe (forthcoming, draft on file with author) p 14. 118 Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000) p 6. 119 Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000) p 21. 120 See Electoral Act 1993 (NZ) s 74. 121 However, a permanent resident in New Zealand is not someone to whom s 7 of the Immigration Act 1987 (NZ) applies, nor is it someone who is obliged to leave New Zealand pursuant to the Immigration Act 1987 (NZ). 122 Electoral Act 1993 (NZ) s 74(b). 123 Barker and McMillan, “Constituting the Democratic Public: New Zealand’s Extension of National Voting Rights to Non-Citizens” (2014) 12(1) New Zealand Journal of Public and International Law 1 at 10.

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minority non-citizens than for the kinship migrants from the United Kingdom, has had radical and far-reaching effects on the country’s “political culture and practice”.124 In the United Kingdom, Commonwealth citizens and citizens of the Republic of Ireland resident in the United Kingdom are entitled to vote,125 so Australian citizens resident in Britain are deemed political members if registered. This franchise acknowledges the historic links between countries of the Commonwealth.126 There are other local governments around the world that allow non-citizens to vote in local elections.127 Further, if one considers other expressions of political activity within a community, aside from voting, residents can often participate. As Carens points out: [T]he expression of political opinions, in personal conversations or in written forums or in public speeches and participation in public rallies are important kinds of political activity that non-citizens should be able to engage in. Most states also permit resident non-citizens to join political parties and to contribute time and money to political parties, presumably because they see such activities as intimately connected to basic civil liberties.128

Another argument in favour of extending voting rights to residents is that governments should derive their powers from the consent of the governed, and residents are governed to the same extent as citizens.129 Moreover, as residents often have similar obligations to citizens, such as

124 Barker and McMillan, “Constituting the Democratic Public: New Zealand’s Extension of National Voting Rights to Non-Citizens” (2014) 12(1) New Zealand Journal of Public and International Law 1 at 3. 125 Representation of the People Act 2000 (UK) s 1. 126 See Lardy, “Citizenship and the Right to Vote” (1997) 17 Oxford Journal of Legal Studies 75 at 77 where she refers to the 1982 Report of the Select Committee on Home Affairs on the Representation of People Act 1948 (UK). 127 In the United Kingdom, resident European citizens can vote along with citizens and resident Commonwealth citizens in local, but not parliamentary, elections. Lardy refers to Sweden, Denmark and Norway, and the United States county of Takoma Park in Maryland (at pp 98–99) as other examples of local constituencies that allow non-citizen residents to vote. See also Raskin, “Legal Aliens, Local Citizens: The Historical, Constitutional, and Theoretical Meanings of Alien Suffrage” (1993) 141 University of Pennsylvania Law Review 1391; Rosberg, “Aliens and Equal Protection: Why Not the Right to Vote?” (1977) 75 Michigan Law Review 1092; Neuman, “We are the People: Alien Suffrage in German and American Perspective” (1992) 13 Michigan Journal of International Law 259; Harper-Ho, “Noncitizen Voting Rights: The History, the Law and Current Prospects for Change” (2000) 28 Law and Inequality: A Journal of Theory and Practice 271. 128 Carens, “Citizenship and Civil Society: What Rights for Residents?” in Hanson and Weil (eds), Dual Nationality, Social Rights and Federal Citizenship in the US and Europe (forthcoming, draft on file with author) p 14. 129 See Harper-Ho, “Noncitizen Voting Rights: The History, the Law and Current Prospects for Change” (2000) 28 Law and Inequality: A Journal of Theory and Practice 271 at 294.

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taxation and, often, defence of the nation, they should also be included in the group choosing those making the very laws that govern them.130 As highlighted in Chapter 5 at [5.130] Australian residents are obliged to pay taxes and may be called upon to serve in the defence of the country. They have largely been included in the benefits extended to the community through government legislation. Is it acceptable to continue to exclude non-citizen residents from voting in Australia, and has the community ever really engaged with this question?

Jury service [6.210] The court has also discussed jury service in extending the meaning and consequence of citizenship.131 Brennan J in R v Glennon (1992) 173 CLR 592, quoting Street CJ, states (at 614) that “[e]very Australian worthy of citizenship can be relied upon to discharge properly and responsibly his (sic) duty as a juror”. This speaks to the notion of the “good citizen” and the concept of citizenship giving effect to the noblest of human capacities, in the civil sphere. It emphasises the corresponding responsibilities of citizenship that individuals owe to the state and fellow members of the community.132 This reciprocal right was also affirmed in Cheatle v The Queen (1993) 177 CLR 541. The Full Court approved a passage of Latham CJ (at 559) in an earlier case – “the right to a jury” is “one of the fundamental rights of citizenship and not a mere matter of procedure”. This reciprocal right is not just limited to citizens. The law has not distinguished, for instance, between permanent residents and citizens in providing juries in criminal matters. But would the Constitution do so? Consider, for example, a law depriving permanent residents of the right to juries for the purposes of s 80133 and one depriving legal citizens of that right. Deane J confirmed that non-citizens are protected by s 80 in Cunliffe v Commonwealth (1994) 182 CLR 272.134

130 Harper-Ho, “Noncitizen Voting Rights: The History, the Law and Current Prospects for Change” (2000) 28 Law and Inequality: A Journal of Theory and Practice 271 at 295. 131 Jury service is also discussed in Chapter 2 at [2.170] and [2.200]. 132 “Citizen” appears in the other High Court cases on s 80, such as Cheng v The Queen (2000) 175 CLR 338 and Brownlee v The Queen (2001) 75 ALJR 1180; [2001] HCA 36 per Kirby J where, at [140], he refers to Deane J’s definition of a jury panel of “ordinary and anonymous citizens” in Brown v The Queen (1986) 160 CLR 171 at 202 and, at [151] and [153] he discusses the make-up of jury panels. 133 Section 80 provides: “The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.” 134 See discussion above at [6.50].

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Military service [6.220] The High Court has discussed citizenship in the context of military service and duty. In Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116, Latham CJ cited and approved a United States case setting out a fundamental consequence of citizenship. It was said (at 133): Government, federal and state, each in its own sphere owes a duty to the people within its jurisdiction to preserve itself in adequate strength to maintain peace and order and to assure the just enforcement of law. And every citizen owes the reciprocal duty, according to its capacity, to support and defend government against all enemies.135

In the same case, Williams J confirmed (at 162) the “right of the Commonwealth Parliament to require Australian citizens to serve in the armed forces or engage in some form of work connected with the prosecution of the war” and, for the same reasons, the right to intern other citizens. Moreover, Williams J stated (at 163): For the purposes of defence the Commonwealth can in times of war pass legislation affecting the rights of the States and of their citizens and corporations under State laws to a greater extent than it can in times of peace.

But what is more profound is that the right of the Commonwealth in times of war is not only linked to citizens. As discussed in Chapter 1 at [1.100] non-citizens can also be conscripted to serve and defend the nation. In Polites v Commonwealth (1945) 70 CLR 60 the court upheld the validity of the National Security Act 1939 (Cth), which gave the Governor-General the power to make regulations requiring “persons to place themselves, their services and their property at the disposal of the Commonwealth”.136 The court held that Parliament had the constitutional power to impose this requirement on non-citizens. Even now, the government can call upon non-citizens who reside temporarily in Australia to serve in the defence force. This further complicates notions of membership in the community.

Extradition and removal from Australia [6.230] Citizenship does not protect a person from foreign prosecution or provide specific protection from extradition.137 Australia’s extradition law covers citizens and non-citizens. Importantly, in Barton v Commonwealth (1974) 131 CLR 477, Barwick CJ stressed that the lawfulness of extradition had nothing to do with citizenship, stating (at 482) that “[t]he plaintiff’s citizenship, is in my opinion irrelevant to the application in this case of the relevant principles”. Further, in Vasiljkovic v Commonwealth (2006) 227 CLR 614, the High Court found that the detention of an Australian citizen for the purposes of criminal extradition 135 Citing Hamilton v University of California 293 US 245 (1934) at 262–263. 136 National Security Act 1939 (Cth) s 13A (emphasis added). 137 See Chapter 5 at [5.130], [5.190] and [5.270].

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was constitutionally valid, even where the evidence supporting the extradition request had not been examined by an Australian court.138 Gleeson CJ stated (at [8]): There is nothing in the Act or Regulations that seeks to attach any legal significance to the fact that the plaintiff was at the relevant time a citizen of Australia as well as of Serbia and Montenegro. This represents a legislative choice in keeping with past Australian practice, and with the practice of many, but not all, other nations.

As Morrell points out,139 although the power to authorise involuntary detention was traditionally considered as belonging exclusively to the judiciary as part of “the essential judicial function of adjudging and punishing criminal guilt”,140 the High Court has recognised exceptions to this rule. These include detention for quarantine or mental health purposes, detention pending criminal trial and the detention of aliens for the purpose of exclusion or removal under the aliens power.141 The court’s decision in Vasiljkovic created another exception, and made it clear that legal citizens are not protected from extrajudicial detention or extradition. Legal citizens do not necessarily have any particular protection from other legislative forms of removal. Kirby J discussed this in DJL v Central Authority (2000) 201 CLR 226 where an Australian citizen child was subject to compulsory return overseas under the Family Law Act 1975 (Cth). The Act gives effect to the Hague Convention on the Civil Aspects of International Child Abduction. In that case Kirby J denied that the legal status of “citizen” protected an individual from removal from the country.142

138 For a critique of the court’s reasoning, see the casenote by Morrell, “Vasiljkovic v Commonwealth of Australia” 29 Sydney Law Review 321. The “no evidence” model of extradition is now the predominant approach in Australia, but does not always result in streamlined administration of extraditions, as illustrated by the filed extradition to Hungary of the alleged war criminal, Charles Zentai: see Minister for Home Affairs (Cth) v Zentai (2012) 246 CLR 213. 139 Morrell, “Vasiljkovic v Commonwealth of Australia” 29 Sydney Law Review 321 at 324. 140 Al-Kateb v Godwin (2006) 219 CLR 562 at 605. 141 Al-Kateb v Godwin (2006) 219 CLR 562 at 609–610 per Gummow J; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 33 per Brennan, Deane and Dawson JJ, and at 65–66 per McHugh J. 142 All the judges agreed with Kirby J on this point: see above at [6.150]. The High Court has affirmed this in subsequent cases: see, eg, Vasiljkovic v Commonwealth (2006) 227 CLR 614 at 634, [48], noting Kirby J was in dissent in Vasilijkovic stating “the plaintiff made good the last of these complaints”. Part II of the Extradition Act is invalid in so far as it provides for the deprivation of the plaintiff’s liberty otherwise than in the exercise of the judicial power of the Commonwealth, at 651, [124].

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Taxation [6.240] The High Court has made statements about citizenship in the context of taxation. As noted earlier,143 the payment of tax is often referred to as a social and political representation of a person’s obligation to the community, connoting some form of membership. When a person pays tax to a government there is an immediate relationship between the individual and government, and a sense of entitlement to provisions and services provided by the government from tax revenue.144 The American Revolution catchcry of “no taxation without representation” is relevant to the legitimacy of obliging non-citizens to pay tax.145 Barwick CJ was notable among High Court justices for his use of the word “citizen” in the context of taxation. In Kolotex Hosiery v Federal Commissioner of Taxation (1975) 132 CLR 535, he discussed (at 541) the rights of the taxpayer under various sections of the Income Tax Assessment Act 1936 (Cth): The Commissioner’s satisfaction or lack of it in relation to a situation of mixed fact and law is made a critical element in the process of assessment in connexion with the group of sections. Thus the citizen’s rights are made to depend upon subjective attitudes of the Commissioner.

And in Brambles Holdings v Federal Commissioner of Taxation (1977) 138 CLR 467, Barwick CJ set out his clear philosophy on tax (at 470): In the administration of taxation laws it is, in my opinion, fundamental that the citizen is entitled to take advantage of the provisions of the statute, even if the result is not something contemplated by the draftsman.

Further, in Federal Commissioner of Taxation v Westraders Pty Ltd (1980) 144 CLR 55, Barwick CJ stated (at 59) that it is for the Parliament to decide “the circumstances which will attract an obligation on the part of the citizen to pay tax”. He continued to say (at 61) that it is the right of citizens to essentially “mould” their transactions around the tax Act, with the ability to do what is “basic to the maintenance of a free society”. In each of these statements, by using the word “citizen” Barwick CJ sees taxpayers as full members of the community. However, as clearly demonstrated in Chapter 5 at [5.110], taxation is not the reserve of citizens – residents are also obliged to pay tax. Thus, in the legal sense, Barwick CJ’s use of the term is inaccurate. Finally, the court also uses the word “citizen” in the avoidance case of Peate v Federal Commissioner of Taxation (1964) 111 CLR 443. The case touches upon the philosophy underpinning taxation and, in particular, 143 See, in particular, Chapter 5 at [5.110]. 144 Note, however, social security support in Australia is not dependent upon a person’s contribution to the labour force. 145 Harper-Ho argues that “[s]ince the founding of the United States, opposition to taxation without representation has been a recurring theme in the battle for political rights”: “Noncitizen Voting Rights: The History, the Law and Current Prospects for Change” (2000) 28 Law and Inequality: A Journal of Theory and Practice 271 at 295.

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the freedom of people to choose their employer. Windeyer J referred to Lord Atkin’s statement that “ingrained in the personal status of a citizen under our laws was the right to choose for himself whom he would serve: and this right of choice constituted the main difference between a servant and a serf”.146 Windeyer J’s reference to the “personal status of a citizen” raises a sense of clear rights and responsibilities flowing from citizenship. This particular right or freedom of employees is perhaps better characterised today as a person’s right or a human right, rather than a citizen’s. While non-citizens’ working rights can be limited by the Migration Act 1958 (Cth),147 they still have the same choice as others regarding who employs them formally. And, of course, they are still subject to taxation if they do in fact earn money in Australia.148

RIGHTS OF “CITIZEN-PERSONS”149 [6.250] In many judgments, like the tax cases just mentioned and the earlier AALA case,150 the High Court uses the word “citizen” interchangeably with the word “person”. Like the rest of the Australian community,151 the High Court is really talking about individuals bearing rights – who could very well be non-citizen permanent residents, or temporary residents. This has contributed to a confused understanding of citizenship in Australia. In this context, the court uses citizenship as a concept linking rights to personhood – a universal concept concerning human beings living in a political community. This is an expression of citizenship as an inclusive term in contrast to an exclusive legal status. Often these references by the court are in the context of a common law of citizenship. One, for instance, is Barwick CJ’s reference in Wade v NSW 146 Citing Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 at 1026 in Peate v Federal Commissioner of Taxation (1964) 111 CLR 443 at 479. 147 Most temporary visas restrict a person’s working rights: see Migration Regulations 1994 (Cth) and the discussion in Chapter 5 regarding working rights at [5.180]. 148 Note, however, there are some bilateral agreements in taxation between countries regarding the payment of taxes in more than one country. 149 Bosniak discusses this as “citizenship of aliens” so as to make clear that “status and rights are to some degree independent, since many of what are commonly called the rights of citizenship are not confined to persons possessing the status of citizenship at all”: Bosniak, “Universal Citizenship and the Problem of Alienage” (2000) 94 Northwestern University Law Review 963 at 978. 150 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82: see above at [6.140]. 151 As do other legal scholars: see, for instance, Allars, “The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law” (2000) 28 Federal Law Review 187. Allars, however, does distinguish her use of the word “citizen” in her first footnote: “The term ‘citizen’ is employed in this essay, not with the technical meaning found in migration and citizenship laws, but rather in the wider and jurisprudential sense of a person in a reciprocal relationship with government defined by political and civil rights and duties.” This is the same sense in which “citizenship” is discussed by Mason, although he does not discuss the differences in the meaning of the term: see Mason, “Citizenship” in Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) p 35.

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Rutile Mining Company (1970) 121 CLR 177 at 181 to the “fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain”. Indeed, it has been argued that the belief by the framers in the common law rights of citizenship was one of the reasons for the absence of a bill of rights in the Constitution. In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, Mason CJ, in discussing the reluctance of the framers of the Constitution to incorporate a comprehensive guarantee of individual rights, stated (at 136) that the framers accepted, in accordance with the prevailing English thinking, that “the citizen’s rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy”. The common law has been the source of much litigation concerning rights, yet these are not only reserved for Australian citizens. In Re Bolton; Ex parte Beane (1987) 162 CLR 514, Bolton was an American citizen who had deserted the United States army, which then sought his return. He was detained by the Australian army and petitioned the High Court for writs of habeas corpus for his release. Brennan J declared (at 521) that “the laws of this country secure the freedom of every lawful resident, whether citizen or alien, from arrest and surrender into the custody of foreign authorities on a mere executive warrant”. His point was general: the laws of the country apply to citizens and non-citizens. As Gibbs CJ states in Actors and Announcers Equity Association v Fontana Films (1982) 150 CLR 169 at 181–182: It is unlikely, for example, that it was intended that the Parliament might provide that the rights and duties of aliens should be determined by a special law, different from that which applies to Australian citizens, in relation to such matters as contracts, torts, succession and criminal responsibility.

So, too, in many torts cases, for instance, the court refers to citizens when, presumably, it includes non-citizens. In the negligence case of Shaddock & Associates v Parramatta City Council [No 1] (1981) 150 CLR 225, Mason J speaks of negligent advice provided by life insurance companies compared to advice by government departments or statutory authorities. In his discussion he refers to the receiver of advice as the “citizen” (at 252): [T]here is no persuasive reason for saying that the citizen who sustains damage as a result of information negligently given by a government department or authority has no remedy, although the citizen who sustains similar damage as a result of information negligently given by an investment adviser has a remedy.

It is likely that Mason J uses the word “citizen” because the case deals with the relationship between government and the individual. But a non-citizen who relies on a public authority’s advice could equally claim liability against the government. In another negligence case involving liabilities of statutory authorities, McHugh J emphasised that “provisions taking away a right of action for damages of the citizen are construed

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‘strictly’, even jealously”.152 Kirby and Callinan JJ also discuss the responsibility of public bodies in an economic loss, negligence action, stating that “[c]itizens are entitled to hold expectations of such a body of honesty, accuracy and care in the provision of estimates of the type offered to the appellant for a serious business purpose”.153 Similarly, in a trespass case154, “citizen” was used in the context of exceptions to the general rule that a person is a trespasser unless that person enters premises with the consent of the occupier. Barwick CJ uses the terminology of “citizenship” when looking at a lessee’s rights under a city ordinance, when the lessee could well have been a non-citizen.155 His Honour also uses “citizenship” when discussing the effect of precedent upon individuals. In Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1981) 150 CLR 225, he states (at 516): The Court, in my opinion within limits … should be ready to depart from the reasoning of an earlier case where it is convinced that that reasoning is clearly wrong and that the rights of the citizens should not for the future be tied to conclusions founded upon it.

The terminology of “citizenship” is also used in criminal law cases involving common law principles. Barwick CJ uses “citizenship” when discussing a person’s right to refuse to answer incriminating questions156 and “citizenship” is the terminology used by Stephen and Aickin JJ in a case concerning illegally obtained evidence when discussing the “right to immunity from arbitrary and unlawful intrusion into the daily affairs” of a person.157 McHugh and Gummow JJ use “citizenship” in a listening device case bearing on the liberty and privacy of individuals.158 In contrast, Kirby J uses the term “individual”,159 referring to the same people. The term “citizen” is also used in a case considering the right of the state to call a Royal Commission,160 and in a native title application case regarding the questions of a Commissioner who, the court held, “had 152 Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 at [34]. See also Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) Aust Torts Reports 81-607 where “citizen” was used in the discussion of the nonfeasance rule and the responsibility of public authorities to the public. 153 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [162]. 154 Esmond Motors v Commonwealth (1970) 120 CLR 463. 155 Esmond Motors v Commonwealth (1970) 120 CLR 463 at 468. 156 Mortimer v Brown (1970) 122 CLR 493 at 495, cited with approval in Hamilton v Oades (1989) 166 CLR 486 at 514 per Toohey J. See also RPS v The Queen (2000) 199 CLR 620 at 643–644 where Callinan J refers to the privilege against self-incrimination as that of the citizen. 157 Bunning v Cross (1978) 141 CLR 54 at 75. See also reference to this passage by Dawson J in Cleland v The Queen (1982) 151 CLR 1 at 32. 158 Ousley v The Queen (1997) 192 CLR 69 at 105 per McHugh J, at 120 per Gummow J. 159 Ousley v The Queen (1997) 192 CLR 69 at 142. 160 Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 89.

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the common law right of every citizen to ask questions”.161 It is used, too, in another case about a person’s right to a hearing when, in fact, the right accords to persons generally.162 McHugh J refers to the common law protection of legal professional privilege as a “fundamental right of the citizen”,163 one that could only be made by the Parliament and not the judiciary as a matter of democratic principle. All of these cases, where “citizen” appears, should more accurately refer to “persons”. So, too, in A v Hayden (1984) 156 CLR 532, the court uses the word “citizen” in regard to the responsibility of “persons” to disclose a felony. Mason J looked at the philosophy underlying the issue and stated (at 555): [T]he effective enforcement of the criminal law and the administration of justice, which are central elements in a well ordered democratic society, depend for their efficacy on the unrestricted freedom of each and every citizen to assist and co-operate with the authorities in the investigation and prosecution of criminal offences.

Finally, one other area of the common law, largely codified in various statutory frameworks,164 is administrative law. Part of the philosophy underpinning administrative law is the protection of individuals in their dealings with government.165 The court often uses the word “citizen” when dealing with these protections.166 Most of the time these protections are extended to citizens and non-citizens. It is unclear whether the common law citizenship rights discussed in this section will ever be implied by the High Court as constitutional rights Parliament cannot override.167 What is clear, though, is that the court, in dealing with legal issues associated with citizenship, has not confined its discussion on the rights and responsibilities of common law citizenship to legal citizens. Underlying this is a conception of the state enforcing the rule of law and protecting human rights. This incorporates broader aspects of citizenship. It reflects a desire to incorporate the normative

161 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 635, citing Clough v Leahy (1904) 2 CLR 13 at 156–157 per Griffith CJ. 162 See R v Marks; Ex parte Australian Building Construction Employees Builders Labourers’ Federation (1981) 147 CLR 471 at 484. 163 Carter v Managing Partner, Northmore Hale Davey & Leake (1995) 183 CLR 121 at 162. 164 See discussion in Chapter 5 at [5.280]. 165 For a discussion about the various philosophies and theories underpinning administrative law, see Craig, Administrative Law (3rd ed, 1994) Ch 1. 166 See, for instance, Allars, “The Rights of Citizens and the Limits of Administrative Discretion: The Contribution of Sir Anthony Mason to Administrative Law” (2000) 28 Federal Law Review 187. 167 However, the more recent pronouncements of the court regarding implied rights, as expressed in cases such as Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567, would suggest such an implication is unlikely.

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notions of citizenship within the legal framework.168 It shows the court using the term “citizen” to represent a person broader than the legal citizen; it is rather the “good citizen”, the participating, civic-minded member of the community to whom the court is referring. Juridically included by the term is the person deserving of the protection of the state and of equality of treatment, regardless of whether the person is a citizen, permanent resident or temporary resident.169 Even if these rights are some day deemed constitutionally protected, it is also not clear whether these rights will be extended to non-citizens. While it appears that the court has included those very non-citizens as deserving of protection through the common law, it is questionable whether they would be included in a framework of a constitutionally entrenched bill of rights. In fact, in the one High Court case to deal with implied constitutional rights and their extension to non-citizens, the court was not clear about the breadth of the protection.170 In any future discussions about a bill of rights,171 the Constitution and citizenship, these distinctions will need to be transparent and resolved through extensive public debate.

CONCLUSION [6.260] In 1994, Michael Detmold, Professor of Law at Adelaide University, wrote an opinion piece in The Weekend Australian newspaper called “The New Citizen”. In it he argued that the range of new rights cases172 determined by the High Court of Australia heralded a new approach to constitutional law. He stated: An important part of our growing up as a community has been the High Court’s transformation of constitutional law in the past decade. If anything characterises that transformation, it is the importance attributed to citizenship. The old constitutional law was mainly a constitutional law of sovereignties … the new one is one of citizenship.173

This was also the theme underpinning Keith Mason’s review of the High Court during the period Sir Anthony Mason presided as Chief Justice.174 These commentators are referring to normative notions of citizenship, not 168 For a discussion of this broader notion of citizenship in the context of children’s citizenship, see Rubenstein and Field, “Conceptualising Australian Citizenship for Children: A Human Rights Perspective” (2013) 20 Australian International Law Journal 77. 169 Note, however, the reference above n 187, to Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 246 at 294. 170 See the discussion on Cunliffe v Commonwealth (1994) 182 CLR 272, above at [6.130]. 171 See discussion in Chapter 7 at [7.50]. 172 The cases referred to in the article included Australian Capital Television v Commonwealth (1992) 177 CLR 106; Mabo v Queensland [No 2] (1992) 175 CLR 1; Leeth v Commonwealth (1992) 174 CLR 455 and Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104. 173 Detmold, “The New Citizen”, The Weekend Australian (15–16 October 1994) p 25. 174 Mason, “Citizenship” in Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) p 35.

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the formal legal understanding of the term. In using the word “citizenship” in this way, they, like the court, have, in an unacknowledged manner, both developed an understanding of the normative notion of citizenship and also confused or conflated two distinct categories. This chapter has developed a common theme in this book – that there are tensions between the formal status of “citizen” and the normative understanding of “citizenship”. The High Court, in using the term interchangeably, has further illustrated that point. Moreover, without a constitutional understanding of the term, the High Court has been constrained in its development of its normative understanding of citizenship, despite the more positive pronouncements of Detmold and Mason. In looking at citizenship in the constitutional context and in the cases concerning legal rights of citizens, and in all the common law cases of citizenship which incorporate rights of non-citizens, this chapter illustrates there is a gap between the formal legal meaning and the greater normative, inclusive understanding of the term. A stronger constitutional statement could be utilised by courts, policy-makers and the public to more readily and easily understand and articulate “citizenship” and a sense of membership in Australia.

Chapter 7

Future of Australian Citizenship [7.10] INTRODUCTION ............................................................................................................... 389 [7.20] FUTURE OF CITIZENSHIP IN THE AUSTRALIAN CONSTITUTION .................. 390 [7.30] A legislative power over citizenship? ............................................................................. 390 [7.40] Dual citizenship and section 44(i) of the Constitution ................................................ 395 [7.50] A constitutional “statement” of citizenship rights and responsibilities ................... 396 [7.60] FUTURE OF THE AUSTRALIAN CITIZENSHIP ACT 2007 (CTH) ......................... 400 [7.70] FUTURE OF CITIZENSHIP FOR CHILDREN IN AUSTRALIA ................................ 402 [7.70] Children as citizens ............................................................................................................ 402 [7.80] Children’s citizenship under the Australian Citizenship Act 2007 (Cth) ................. 404 [7.90] Children’s citizenship beyond the 2007 Act .................................................................. 406 [7.100] Future of citizenship for children .................................................................................. 409 [7.110] FUTURE OF CITIZENSHIP AND NATIONALITY IN A GLOBALISED WORLD .................................................................................................... 410 [7.120] Globalisation’s impact on Australian citizenship ....................................................... 413 [7.130] Globalisation’s impact on democracy and governance ............................................. 417 [7.140] Globalisation and legislative expressions of membership ........................................ 420 [7.150] CONCLUSION .................................................................................................................. 421

INTRODUCTION [7.10] This chapter develops issues already raised about Australian citizenship law. For instance, matters of citizenship and the Constitution, discussed in Chapters 2, 4 and 6, are revisited in the first part of this chapter. Moreover, the various reviews of Australian citizenship initiated by the government and Parliament have been referred to throughout the book, most significantly in Chapter 4. These reviews culminated in the introduction of the new Australian Citizenship Act 2007 (Cth) in 2007. The current status of the Act and recent developments will also be revisited in this chapter. Finally, in considering the future of Australian citizenship law, context is all-important. That context not only includes the domestic issues pertaining to citizenship, but also the international aspects of citizenship. As noted throughout the book, citizenship has both domestic and international dimensions.1 Trends toward globalisation and, since the 1 That is why the terms “citizenship” and “nationality” are used in the final part of this section. These two terms are different in a technical legal sense. While essentially the

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first edition of this book, the spread of terrorism internationally, has expedited the international impact on domestic issues of citizenship. These will be raised to further contextualise the subject matter and conclude the book.

FUTURE OF CITIZENSHIP IN THE AUSTRALIAN CONSTITUTION [7.20] The failure to include citizenship in the Australian Constitution has led to many inconsistencies in the way citizenship is used as a concept in Australia.2 There is academic dispute over whether the inclusion of citizenship in a constitution assists in the progressive project of citizenship, enhancing a liberal view of citizenship rights and inclusion.3 This section canvasses three areas of constitutional change relevant to citizenship: • the insertion of a specific power over citizenship under s 51 of the Constitution; • the amendment of s 44(i) of the Constitution so that members of Parliament are not disqualified if they hold citizenship of another country; and • the insertion of a bill of rights dealing with citizenship issues.

A legislative power over citizenship? [7.30] In formal legal terms, the lack of a reference to citizenship in the Constitution is troubling. The 1988 Constitutional Commission, a body of experts set up to review the Commonwealth Constitution, was concerned that the Constitution did not expressly grant the Federal Parliament power to make laws about nationality or citizenship.4 While acknowledging that it is assumed Parliament has the power through s 51(xix) or through an implied nationhood power,5 it was not clear from the march of judicial authority that this was indeed the case. More than a quarter of a century later, it is still not clear. The Australian Citizenship Act 2007 (Cth) does more than provide for naturalisation. It allows the automatic acquisition of citizenship, for same concept, they reflect two different legal frameworks. Both terms identify the legal status of an individual in light of his or her state membership. But the term “citizenship” is confined mostly to domestic legal forums, and the term “nationality” to the international law forum. As Weis states, “[c]onceptually and linguistically, the terms … emphasize two different aspects of the same notion … ‘Nationality’ stresses the international, ‘citizenship’ the national, municipal aspect”: Weis, Nationality and Statelessness in International Law (1956) p 5. 2 See Chapters 2 and 4 of this book. 3 See Bickel, “Citizenship in the American Constitution” (1973) 15 Arizona Law Review 369. See further, the discussion in respect to a bill of rights at [7.50]. 4 Constitutional Commission, Final Report (1988) Vol 1 p 160. 5 Through a series of cases, the High Court has developed an implied nationhood power which gives the Commonwealth Parliament power for matters inherently national. See, Victoria v Commonwealth (1975) 134 CLR 338 and Davis v Commonwealth (1988) 166 CLR 79.

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example by birth and adoption, and it provides for loss of citizenship.6 The Constitution, however, does not specifically provide the Commonwealth sufficient power to legislate beyond naturalisation and aliens. Thus, the recommendation of the Constitutional Commission to change the Constitution to include an express power over citizenship is still germane. Moreover, to allay uncertainty, it is desirable that the Federal Parliament’s power to make laws with respect to nationality and citizenship be express and not implied. The principle has application well beyond the Australian Citizenship Act 2007 (Cth). Many Acts discriminate upon the basis of citizenship.7 For the “aliens” head of power to be the foundation of laws discriminating upon the basis of a person’s legal status is unsatisfactory for two key reasons. First, the “aliens” power in s 51(xix) of the Constitution clearly focuses on those who are outside the Australian community, rather than those who are within it. It is thus both symbolic and legally significant that this power underpins much of Australia’s current citizenship law. While the Constitution also gives the Commonwealth power to make laws with respect to “naturalisation”, “immigration and emigration”, these powers are potentially narrower. In contrast, the power to regulate aliens has been interpreted very broadly: as long as a person falls within the description of “aliens”, the power of the parliament to make laws affecting that person is unlimited unless the Constitution otherwise prohibits the making of the law.8

Indeed, Parliament can “decide who will be treated as having the status of alienage, who will be treated as citizens, and what the status of alienage, or non-citizenship, will entail”.9 In the years since Federation, the High Court has made it clear that “absorption” and normative notions of membership are not irrelevant to determining who is an Australian citizen; Parliament may deem a person to be an “alien”, even if they were born in Australia,10 have spent most of their life there, and have strong ties to the Australian community. 6 In Meyer v Poynton (1920) 27 CLR 436, the High Court held that the law dealing with the revocation of a certificate of naturalisation was within power. This view was expressly approved by Isaacs J in Re Yates; Ex parte Walsh (1925) 37 CLR 36 at 87–89. Gaudron J appeared to take a narrower view in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 54. 7 See Chapter 5 where the breadth and range of forms of discrimination is set out in detail. 8 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 424 per McHugh J. 9 Koroitamana v Commonwealth (2006) 227 CLR 31 at 38 per Gleeson CJ, Heydon J. 10 The High Court in Singh v Commonwealth (2004) 222 CLR 322 and Koroitamana v Commonwealth (2006) 227 CLR 31 confirmed that birth in Australia did not necessarily preclude a person from being an “alien”. Further, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439, the High Court upheld the validity of Australian regulations removing the citizenship of Papuan Australian citizens upon Papuan Independence in 1975.

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The distinction between citizens and aliens forms the foundation of Australian immigration law,11 as non-citizens can validly be deported under the Migration Act 1958 (Cth) as “aliens”. It has been argued that this has rendered Australian citizenship susceptible to politicisation, as governments have sought to extend the reach of the “aliens” power and narrow the avenues to Australian citizenship to prevent “exploitation”12 of the migration process.13 A significant example is the 2009 amendment to Australian Citizenship Act 2007 (Cth) provisions that previously allowed all children under the age of 18 to apply for Australian citizenship.14 Limiting citizenship to children who were already permanent residents was considered necessary to: prevent children who are in Australia unlawfully, or, who along with their families, have exhausted all migration options, from applying for citizenship in an attempt to prevent their removal from Australia.15

It has been argued that the “aliens” power thus renders Australian citizenship a tool of exclusion, rather than inclusion. It means that Parliament defines the Australian community by who it its members are not, rather than who they are.16 Another significant example of this use of the “aliens” power as a tool of exclusion can be seen with the introduction of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) enabling dual citizens to be stripped of their Australian citizenship in certain circumstances.17 Just as the sections on obtaining citizenship reflect upon citizenship as a normative notion,18 so, too, do the sections on loss of citizenship and its resumption reflect the meaning of membership of the Australian community. In particular, these provisions have been identified as reflecting fundamentally on notions of allegience and loyalty and their centrality to the Act’s framing of legal citizenship in Australia. How well 11 Conversely, as Catherine Dauvergne argues, migration law has become extremely important to the question of who can become an Australian citizen: see Dauvergne, “Confronting Chaos: Migration Law Responds to Images of Disorder” (1999) 5 Res Publica 23; and “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280. 12 Australia, Senate, Parliamentary Debates (25 June 2009) p 4264 (Penny Wong). 13 Rubenstein and Field, “Who We Are Not Is Not Who We Are: Australia’s Exclusionary Approach to Citizenship” in Douglas and Wodak (eds), Refugees and Asylum Seekers: Finding a Better Way (2013) p 88. 14 Australian Citizenship Act 2007 (Cth) s 21(5). This amendment is discussed in Chapter 4 at [4.690]. 15 Australia, Senate, Parliamentary Debates (25 June 2009) p 4264 (Penny Wong). 16 Rubenstein and Field, “Who We Are Not Is Not Who We Are: Australia’s Exclusionary Approach to Citizenship” in Douglas and Wodak (eds), Refugees and Asylum Seekers: Finding a Better Way (2013) p 88. See also Rubenstein, “From Supranational to Dual to Alien Citizen: Australia’s Ambivalent Journey” in Bronitt and Rubenstein (eds), Citizenship in a Post-National World Australia and Europe Compared (2008) p 1. 17 See further discussion of these amendments at [4.1350] and [7.120]. 18 See discussion in Chapter 1 at [1.20] about the different meanings of “citizenship”.

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they sit with broader notions of membership of the Australian community is questionable19 but, as Karen Slawner argues, “legal definitions of citizenship always incorporate what is considered to be desirable activity”.20 This further affirms that the fact that the aliens power underpins the constitutional power of the Act is both symbolic and legally significant. A second inadequacy in the “aliens” power stems from the High Court’s judgment in Actors and Announcers Equity v Fontana Films Pty Ltd (1982) 150 CLR 169. Following the authority in that case, where laws are directed to persons in their dealings with others who are the subjects of a legislative power, such as aliens, the law is operating directly upon those subjects. Therefore, any law dealing with citizens and their relationship with non-citizens comes within the “aliens” head of power. This was particularly relevant in Cunliffe v Commonwealth (1994) 182 CLR 272 where the law dealt with citizens and their ability to give migration advice to non-citizens. But is the “aliens” head of power sufficient to cover legislation providing consequences for Australian citizens without particular reference to non-citizens? For instance, the Family Court’s power to grant a divorce may be exercised if one or other of the parties is an Australian citizen or person “domiciled” in Australia or ordinarily resident in Australia.21 While this may gain its constitutional legitimacy through another head of power under s 51 of the Constitution,22 it could also gain legitimacy, if needed, if there was an express head of power over citizenship. However, an express head of power over citizenship is not a party political preoccupation in Australia. In 1999 the Constitution Alteration (Establishment of Republic) Bill 1999 (Cth) floundered without necessary majorities.23 The Bill provided for the removal of the words “subject of the Queen” in s 117 of the Constitution and their replacement with the words “an Australian citizen”.24 In the list of definitions in the Bill, an “Australian citizen” was defined as a person “who is an Australian citizen according to the laws made by the Parliament”. There was, however, no 19 See in particular Rubenstein, “Abbott’s Dual Citizenship Plan is Bad Policy Even in Fight against Terror”, The Australian (29 May 2015): http://www.theaustralian.com.au/ opinion/abbotts-dual-citizenship-plan-is-bad-policy-even-in-fight-against-terror/newsstory/abdd4e9ee414cc3f8d19cc9bf70dc68a; and Rubenstein, “Allegiance Bill Still Flawed”, The Sydney Morning Herald (12 November 2015): http://www.smh.com.au/ comment/allegiance-bill-still-flawed-20151112-gkwyvp.html. 20 Slawner, “Uncivil Society: Liberalism, Hermeneutics, and “Good Citizenship”” in Slawner and Denham (eds), Citizenship after Liberalism (1998) p 83. 21 See Family Law Act 1975 (Cth) s 39. 22 In this case, s 51(xxi) of the Constitution (“marriage”). 23 Section 128 of the Constitution requires a majority of electors voting in a majority of States, together with a majority of all the electors voting. See also, Rubenstein, “Citizenship and the Republic Debate” in Patmore (ed), The Big Makeover: A New Australian Constitution, Labor Essays 2002 (Pluto Press, 2002). 24 Section 117 of the Constitution is discussed further in Chapter 6 at [6.40].

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inclusion of an amendment to s 51 to include an express power over citizenship. Arguably, the insertion of such a definition includes, implicitly, the power for the Commonwealth Parliament to make such laws. In addition, the Parliament may well be satisfied that it has an implied power over citizenship. If the proposal to alter s 117 had been introduced, it is questionable whether the Commonwealth would have obtained absolute power over the definition of an “Australian citizen”. The words of Gibbs J in Pochi v Macphee (1982) 151 CLR 101 are relevant here. By giving its own definition of “citizen”, Parliament could not simply expand its power to include persons who could not possibly answer the description of “citizens” in the ordinary sense of the word. Moreover, the views of Gaudron and Kirby JJ in the majority in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 confirm this. The February 2000 report of the Australian Citizenship Council acknowledges that there is no constitutional mention of the word “citizenship” and refers to the Commonwealth’s power to make laws with respect to “naturalization and aliens”. It makes no comment, however, about the issues discussed above, nor is there any recommendation to broaden that head of power to make certain the Commonwealth’s power in this area.25 It is unlikely that there will be any changes to the Constitution in the near future to address this issue specifically before a full court; however, McHugh J, sitting as a single judge in his final judgment on the High Court, did state categorically in Hwang v Commonwealth (2005) 222 ALR 83 at 8 [9]: It is hardly to be supposed that the national government of an independent sovereign state such as Australia does not have the power to declare to the world who are the citizens of Australia. This is not a matter that concerns the States. They do not speak on behalf of Australia. If the Parliament of the Commonwealth does not have the power to declare who are the citizens of Australia, no Australian polity has the power. Subject to any constitutional prohibitions, every sovereign country has the undoubted right to determine who shall enter the country and who shall constitute the political membership of the community of that country. That is to say, within the limits of its constitutional powers, every sovereign country has the right to determine who are its citizens and to declare by legislation what are the rights, privileges, immunities and duties of members of that community. It is the Commonwealth that speaks to the world on behalf of the Australian community, and it is the 25 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 31. The Council did address the constitutional issue of s 44(i) of the Constitution regarding dual citizenship as a basis for disqualification from membership of the Australian Parliament, and supported the recommendation in the report of the Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (July 1997), that further consideration be given by government to the issue of how to more appropriately measure “undivided loyalty to Australia” for intending candidates for Parliament and members of Parliament (pp 75–77). See further, discussion in Chapter 4 at [4.380].

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Parliament of the Commonwealth that, subject to any express or implied constitutional prohibitions, has the power to determine who are its citizens.26

Dual citizenship and section 44(i) of the Constitution [7.40] In 1997, the House of Representatives Standing Committee on Legal and Constitutional Affairs considered dual citizenship when looking at aspects of s 44 of the Constitution.27 It concluded that s 44(i) should be deleted and attention be placed on Australian citizenship in the parliamentary system. It recommended that issues of divided loyalty and foreign influence over parliamentarians would be better placed in legislation and that the Constitution should be amended to give the Parliament power to enact legislation to that effect.28 The issue was raised again within the context of the Australian Citizenship Council’s deliberations because although it was not a matter directly pertaining to the Australian Citizenship Act, the provision could “restrict the full participation in the political process of Australian citizens who hold another citizenship”.29 The Council reviewed the House of Representatives’ conclusions and supported the recommendations above that a referendum be held to delete subs 44(i) of the Constitution and insert a new provision requiring candidates and members of the Australian Parliament to be Australian citizens. The Council, however, recommended further consideration be given to the issue of how to more appropriately measure “undivided loyalty to Australia” for intending candidates for Parliament.30 The government, in responding to the Council’s report, stated its commitment to “seeking opportunities to progress review and public debate of issues related to s 44(i) of the Australian Constitution”.31 However, this was not a commitment to change s 44(i). Section 44(i) was also a topic of discussion in the House of Representatives Legal and Constitutional Affairs Committee round-table on constitutional reform in 2008. One of the sessions of the round-table was devoted to questions of citizenship and examined many of the questions discussed above.32 No specific recommendations followed other 26 See also Pillai, “Non-immigrants, Non-aliens and People of the Commonwealth: Australian Constitutional Citizenship Revisited” (2013) 39(2) Monash University Law Review 568. 27 Australia, House of Representatives, Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (July 1997). 28 Australia, House of Representatives, Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (July 1997) p xii. 29 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 75. 30 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 77. 31 Australian Citizenship … A Common Bond, Government response to the Report of the Australian Citizenship Council (May 2001) p 27. 32 Australia, House of Representatives, Standing Committee on Legal and Constitutional Affairs, Inquiry into Constitutional Reform (2008). For extract from Chapter 6, “Citizenship

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than the importance of engaging the greater community in the issues raised by the absence of citizenship in Australia’s Constitution and no further action has been taken on s 44(i) since.33 In any event, the history of constitutional amendment in Australia does not inspire confidence that changes once put will be embraced by an electorate ever wary of referenda. Moreover, with the recent changes to enable dual citizens to have their Australian citizenship stripped from them in certain circumstances, it does not appear that the political mood represents support for advocacy for changing s 44(i) of the Constitution.34

A constitutional “statement” of citizenship rights and responsibilities [7.50] A glaring omission from Australian citizenship discourse is the lack of an accessible statement of citizenship rights and responsibilities.35 Instead, one is left to the myriad pieces of legislation discriminating upon the basis of citizenship to determine the rights and responsibilities flowing from the status.36 A bill of rights debate is beyond the scope of this book. It does, however, bear limited canvassing in this chapter, whether any future introduction of such a Bill be in a legislative or constitutional format.37 In the House of Representatives Legal and Constitutional Affairs Committee round-table on constitutional reform in 2008, one of the sessions was devoted to questions of citizenship and also questions about a constitutional bill of rights.38 No specific recommendations followed other than the importance of engaging the greater community in the issues raised by the round-table. The debate about rights and responsibilities of all individuals and the Protection of Rights in Australia”, see http://www.aph.gov.au/parliamentary_ business/committees/house_of_representatives_committees?url=/laca/ constitutionalreform/report.htm. 33 Australia, House of Representatives, Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (July 1997). 34 In the author’s view, dual citizenship is a positive development that should be accepted as a necessary incident of multiculturalism and globalisation, both by Parliament and the community generally: see Rubenstein, “Why We Are Not All Born Equal”, The Australian (Opinion piece, 1 July 1999); Rubenstein, “Let’s Face It. Today We’re Citizens of the World”, The Australian (Opinion piece, 22 May 2001); Rubenstein and Field, “Australia’s Dual Citizenship Laws Should Not be diluted in Terror Fight”, The Australian (online, 5 September 2014): http://www.theaustralian.com.au/opinion/ australias-dual-citizenship-laws-should-not-be-diluted-in-terror-fight/story-e6frg6zo1227048154768. 35 See discussion in Chapter 1 at [1.110] and Chapter 5 at [5.20]. 36 As discussed in Chapter 5 at [5.210]. 37 See Williams, A Bill of Rights for Australia (2000). 38 Australia, House of Representatives, Standing Committee on Legal and Constitutional Affairs, Inquiry into Constitutional Reform (2008). An extract from Chapter 6, “Citizenship and the Protection of Rights in Australia”, see http://www.aph.gov.au/parliamentary_ business/committees/house_of_representatives_committees?url=/laca/ constitutionalreform/report.htm.

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has been raised beyond the formal citizenship framework in the normative citizenship discussions regarding a bill of rights. What rights might be identified as citizenship rights? In Defining Australian Citizenship: Selected Documents,39 John Chesterman and Brian Galligan include the vote, free speech, freedom of religion, freedom of movement, equal protection of the law, free basic health care, a minimum wage, social security, education and Indigenous rights as examples of citizenship rights. These are a combination of political, economic and social rights. Would citizens be the only people entitled to these rights, or would these be the rights of all? International law provides a framework for assessing distinctions between the rights of citizens and non-citizens. The International Convention for the Elimination of All Forms of Racial Discrimination40 and the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which they Live41 permit discrimination between nationals and nonnationals, but not in relation to fundamental human rights. The fundamental human rights contained in the International Covenant on Civil and Political Rights (ICCPR)42 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)43 apply to citizens and non-citizens equally. The ICESCR makes no reference at all to citizens, so there is no distinction between the rights and privileges of “people” and “citizens”. Therefore, working rights,44 social security rights,45 the right to enjoy the highest standard of physical and mental health46 and rights to education47 are rights extending to all people. Article 25 of the ICCPR applies to citizens only and is an exception to the general rule of equal application to all persons. It enshrines the right to take part in public affairs, the right to vote and the right of access to public service. Other rights in the ICCPR extending to citizens and 39 Chesterman and Galligan, Defining Australian Citizenship: Selected Documents (2000). 40 Opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969). 41 GA Res, 144(XL), UN GAOR, 40th Sess, Supp 53 (1985) at 253 (adopted by general consensus). Article 2(1) states: “Nothing in this Declaration shall be interpreted as legitimizing the illegal entry into and presence in a State of any alien, nor shall any provision be interpreted as restricting the right of any State to promulgate laws and regulations concerning the entry of aliens and the terms and conditions of their stay or to establish differences between nationals and aliens. However, such laws and regulations shall not be incompatible with the international legal obligations of that State, including those in the field of human rights.” 42 ICCPR, opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976). 43 ICESCR, opened for signature 16 December 1966, 999 UNTS 3. 44 ICESCR, Arts 7 and 8. 45 ICESCR, Art 9. 46 ICESCR, Art 12. 47 ICESCR, Art 13.

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non-citizens alike include: the right to self-determination;48 protection from torture or cruel, inhuman and degrading treatment or punishment;49 the right to liberty and security of person;50 and liberty of movement and freedom to choose one’s own residence.51 Therefore, according to this framework, the only fundamental rights discriminating between citizens and non-citizens are the democratic rights – the right to vote, the right to stand for election to Parliament and the right to be employed in certain government positions.52 This approach is consistent with the High Court’s pronouncements on implied rights in the Constitution. Mason CJ was the only judge to embrace the idea that non-citizens in Australia were entitled to the protection afforded by the Constitution and the laws of Australia.53 Relying on Re Bolton; Ex parte Beane (1987) 162 CLR 514, he said (at 521–522) that non-citizens within Australia were entitled to invoke the implied freedom of communication: particularly when they are exercising that freedom for the purpose, or in the course, of establishing their status as entrants and refugees or asserting a claim against government or seeking the protection of the government.54

Brennan J grounded a distinction in the notion of representative democracy, stating that aliens “have no constitutional right to participate in or to be consulted on matters of government in this country” and that the: Constitution contains no implications that the freedom is available to aliens who are applying for or who have applied for visas … Nor is there any basis for implying that aliens have a constitutional right.55

More specifically, he stated that “if the Constitution implies a right of access to government or to the repositories of statutory power … it would be a citizen’s right”.56 Crucially, the right to participate in government, and to be consulted about and in its deliberations, is central to citizenship. If you do not have the right to vote (although there is no exact correspondence between voting and citizenship), then you do not have the right to rely on the constitutional protection of free speech in trying to invalidate a law. 48 ICESCR, Art 1. 49 ICESCR, Art 7. 50 ICESCR, Art 9. 51 ICESCR, Art 12. 52 The question of discrimination upon the grounds of citizenship for public service appointment has been considered by the Canadian Courts: see [5.40] and [5.50]. 53 Cunliffe v Commonwealth (1994) 182 CLR 272 at 299. 54 Cunliffe v Commonwealth (1994) 182 CLR 272 at 299. 55 Cunliffe v Commonwealth (1994) 182 CLR 272 at 328. 56 Cunliffe v Commonwealth (1994) 182 CLR 272 at 328.

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Deane J accepted part of Mason CJ’s argument, that non-citizens could rely on the ordinary law, and included in this some of the Constitution’s guarantees, directives and prohibitions,57 but declared that a non-citizen: stands outside the people of the Commonwealth whose freedom of political communication and discussion is a necessary incident of the Constitution’s doctrine of representative democracy. That being so the incident does not operate to directly confer rights or immunities upon an alien. Any benefit to an alien must be indirect in the sense that it flows from the freedom or immunity of those who are citizens.58

Deane J noted that the effect of his distinction might be of no practical consequence. However, the significance is extreme in determining rights flowing from citizenship. Nevertheless, would the placement of rights in the Constitution clarify citizenship matters or make the issue even more complex? There is valid argument about the dangers of placing citizenship rights into the Constitution. In the United States context, Alexander Bickel argues the less said about citizenship, the better. In his view it is: gratifying … that we live under a Constitution to which the concept of citizenship matters very little indeed. It prescribes decencies and wise modalities of government quite without regard to that concept. And it subsumes important obligations and functions of the individual, which have other, more complex sources and foundations, moral, political, and traditional, than the simple contractarian notion of citizenship.59

While the starting “decencies and wise modalities of government” are lacking in the Australian Constitution, Greg Taylor makes a similar point to that of Bickel: “it is extremely difficult to pin down precisely what implications might flow from such a vague and general concept as citizenship”.60 Using the United States experience of citizenship as an example, he argues that the inclusion of references to citizenship within the United States’ Constitution has not led to any clarity or usefulness in its application.61 A bill of rights and its impact upon citizenship is a necessary element of this chapter as its enactment has been part of the political platform of a number of Australian political parties, including the Australian Labor 57 See Constitution, ss 80, 92, 116. 58 Cunliffe v Commonwealth (1994) 182 CLR 272 at 336. 59 Bickel, “Citizenship in the American Constitution” (1973) 15 Arizona Law Review 369 at 387. 60 Taylor, “Citizenship Rights and the Australian Constitution” (2001) 12 Public Law Review 205. 61 A case not discussed by Taylor, but useful to an argument about the limitations of rights protection through bills of rights, is Tuan Anh Nguyen v Immigration and Naturalization Service 533 US 53 (2001). The case involved US citizenship law’s descent provisions discriminating upon the gender of the parent for children born outside the US and out of wedlock. The Supreme Court held that the gender-based classification withstood equal protection scrutiny as the distinction serves “important governmental objectives”.

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Party, the Greens and the Australian Democrats. The introduction of a charter of rights was part of the Australian Labor Party’s national platform from 1969, but numerous Labor governments failed to introduce the legislation to enact it. Interestingly, in December 2011, the ALP National Conference wound back the commitment, resolving only to: review [Labor’s] Human Rights Framework legislation in 2014 and … consider whether the Human Rights Framework could be enhanced through a statutory charter of human rights or other similar instrument.62

Whilst public and political debate on the introduction of a bill of rights may have momentarily subsided, the issue still remains. In any case, whether citizenship rights are considered in the context of the Australian Constitution or in legislative form, it is vital to ensure that the investment of citizenship with legal consequence does not disinvest non-citizens of the rights and status they are entitled to, not as Australian citizens, but as citizens in the common cause of humanity.63

FUTURE OF THE AUSTRALIAN CITIZENSHIP ACT 2007 (CTH) [7.60] Various parliamentary and government-motivated reviews of citizenship looked at the future of Australia’s first dedicated law on citizenship, the Australian Citizenship Act 1948 (Cth). In each, there were recommendations to change the Act – these have been noted where appropriate throughout Chapter 4. The Australian Citizenship Council’s report, Australian Citizenship for a New Century, received a government response and led to the enacment of the new Australian Citizenship Act 2007 (Cth) and the most recent significant changes to that new 2007 Act came about as a result of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth). The 2007 Act was a complete restructure of the 1948 Act, but limited substantive changes were made at the time of its introduction. Key changes included: • the removal of age limits for applications of citizenship by descent: s 16; • the creation of an avenue for people adopted overseas to become Australian citizens: s 19C; • the addition of s 21(6) allowing children of parents who lost their citizenship under the former s 17 of the 1948 Act to apply for citizenship; and

62 Australian Labor Party, 46th National Conference: National Platform (2011) p 154. 63 The Canadian case of Lavoie v Canada [2002] SCC 23 about equality of rights and discrimination upon the basis of citizenship, discussed at [5.40] and [5.50], is pertinent to any future debate in this area.

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• the addition of s 21(7), allowing citizenship by conferral for some individuals born in Papua.64 Although these changes were largely “inclusive”, expanding the pool of potential Australian citizens, key amendments made to the conferral provisions of the the 2007 Act since its introduction have significantly narrowed it. The 2007 introduction of a citizenship test that must be passed by all applicants under the general eligibility provisions, and the 2009 amendment that mandated permanent residency for applicants under the age of 18 who apply under s 21(5) of the Act,65 have made Australian citizenship more difficult to obtain. Moreover, the 2015 amendment to enable Australian citizens holding dual citizenship to have their citizenship stripped has made their citizenship more vulnerable. All of these amendments were made in a decade in which issues of irregular migration, multiculturalism and national security remained at the forefront of public political debate. The introduction of the citizenship test requirement was intended to “support successful integration into Australian society”66 and “help foster a nation of people with a common purpose”.67 The amendment to the children’s eligibility provision s 21(5) was justified on the basis of “ensur[ing] the integrity and consistency of the citizenship and migration programs”,68 and to ensure that children and their families could not use an application for Australian citizenship to “prevent their removal from Australia”.69 The changes to enable dual citizens to have their Australian citizenship stripped were supported due to a concern “that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia”.70 As these issues continued to dominate media and parliamentary discourse, there were also moves to further narrow the avenues to Australian citizenship in the 2007 Act. These were first introduced into the Parliament through the Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) in the House of Representatives in October 2014, prior to the introduction of the amendments in the Australian 64 Other changes to the last version of the 1948 Act include the introduction of a framework for the collection, storage and use of personal information, heightened security measures and changes to residency requirements. 65 These changes are discussed in detail in Chapter 4 at [4.690]. 66 Australia, House of Representatives, Parliamentary Debates (30 May 2007) p 4 (Kevin Andrews). 67 Australia, House of Representatives, Parliamentary Debates (30 May 2007) p 4 (Kevin Andrews). 68 Australia, Senate, Parliamentary Debates (25 June 2009) p 4264 (Penny Wong). 69 Australia, Senate, Parliamentary Debates (25 June 2009) p 4264 (Penny Wong). 70 Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) s 4, “Purpose of this Act”.

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Citizenship Amendment (Allegiance to Australia) Bill. While the latter became the Amendment Act of 2015, the earlier Bill lapsed with the calling of the 2016 federal election. The Explanatory Memorandum for the lapsed Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) stated that it would amend the 2007 Act to “insert, clarify and strengthen key provisions of the Act”.71 The changes are wide-reaching and the majority of them would operate to exclude more individuals from membership of the Australian community in the form of Australian citizenship. Although the Bill has lapsed for now, it is not clear whether it will be reintroduced in the future. The proposed changes included: • extending good character requirements to all citizenship applicants, including applicants under 18 years of age, and extending the bar on approval of a citizenship application for criminal offences to all applicants for citizenship; • preventing applicants aged under 18 from being able to seek merits review of decisions not to approve their application for citizenship by conferral, unless they are a permanent resident or hold a prescribed permanent visa; • introducing exceptions to the automatic acquisition of citizenship by children born in Australia and who live in Australia for the first 10 years of their life if during that 10-year period the child was outside Australia without a right to return, or if they, or their parents, have been unlawful non-citizens; • providing the Minister with broader discretions to cancel approvals, defer citizenship pledges and revoke citizenship, including to revoke a person’s Australian citizenship by descent, conferral or intercountry adoption if the Minister is satisfied that the person obtained citizenship as a result of fraud or misrepresentation in certain circumstances (regardless of whether the person has been convicted of an offence in relation to the fraud or misrepresentation, and regardless of whether the fraud was perpetrated by the citizen or another person); and • mandating cancellation of an approval of Australian citizenship where the applicant is required to make the pledge of commitment before becoming a citizen and the Minster is satisfied that the person would not now be approved as a citizen because they would be subject to prohibitions on approval related to identity, national security or criminal offences.

FUTURE OF CITIZENSHIP FOR CHILDREN IN AUSTRALIA Children as citizens [7.70] Global notions of children’s citizenship have evolved since the creation of the legal status of Australian citizenship in 1949. In 1950, the noted citizenship theorist, T H Marshall, wrote that children were only 71 Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth) Explanatory Memorandum, p 1.

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potential citizens;72 true citizenship was attained in adulthood. However, in the years since, there has been growing recognition in a number of contexts that children can be active rights holders, social actors and community members.73 A key milestone was the entry into force of the United Nations’ Convention on the Rights of the Child74 in 1990. This was the first international human rights instrument to explicitly recognise children’s civil rights75 and has been ratified by 193 countries.76 Its near universal acceptance makes the Convention an important document for ascertaining the substance of children’s rights77 and has a significant role in Australian law and policy.78 The Convention states that the rights set out within it apply to all children without discrimination.79 Most relevantly to citizenship,80 it recognises that all children have a right to express their views freely in all matters affecting them, with those views being given due weight.81 The Convention confers rights to freedom of expression,82 thought, conscience and religion,83 and association.84 States’ parties are also required to ensure their national law implements children’s rights to acquire a nationality85 and to preserve their identity without unlawful interference.86 As children’s rights gain greater acceptance and attention, both globally and in Australia,87 it is likely that the meaning of citizenship for children will come under scrutiny. This section examines children’s citizenship in 72 Marshall, Citizenship and Social Change (1950). 73 For a discussion, see James, “To Be (Come) or Not To Be (Come): Understanding Children’s Citizenship” (2011) 633(1) The Annals of the American Academy of Political and Social Science 167. 74 Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (Convention). 75 UNICEEF, “Children as Active Citizens” (2008) p ix. 76 Only Somalia and the United States have not yet ratified. 77 Tobin, “The Convention on the Rights of the Child: The Rights and Best Interests of Children Conceived Through Assisted Reproduction”, Legal Studies Research Paper No 541 (Melbourne Law School, 2004) p 2. 78 Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 94 (1997) at [3.14]. 79 Convention, Art 2. 80 See discussion in Rubenstein and Field, “Conceptualising Australian Citizenship for Children: A Human Rights Perspective” (2013) 20 Australian International Law Journal 77. 81 Convention, Art 12. 82 Convention, Art 13. 83 Convention, Art 14. 84 Convention, Art 15. 85 Convention, Art 7. 86 Convention, Art 8. 87 For example, with the appointment of a National Children’s Commissioner in 2013.

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Australia, both as a legal status under the 2007 Act and more broadly, drawing on normative conceptions of citizenship as rights, political participation and identity.88

Children’s citizenship under the Australian Citizenship Act 2007 (Cth) [7.80] The Australian Citizenship Act 2007 (Cth) sets out the ways in which children may obtain and lose the legal status of Australian citizenship. The Act impacts children in three key areas: automatic acquisition of citizenship, obtaining citizenship by application and the cessation of citizenship.89 A child may automatically acquire the legal status of an Australian citizen in one of three ways. If born in Australia, the child will automatically be an Australian citizen if one of the parents is a citizen or permanent resident90 or, if not, if the child ordinarily resides in Australia for the first 10 years of his or her life.91 A child adopted by an Australian citizen will also be a citizen if the child is a permanent resident and is adopted under a law in force in an Australian State or Territory.92 Further, a child found abandoned in Australia is an Australian citizen, unless and until the contrary is proved.93 The Act also identifies ways of applying for citizenship.94 A child may make an application for a grant of Australian citizenship by descent,95 by

88 These aspects of citizenship were identified in the context of adults’ citizenship by Linda Bosniak, who writes that contemporary understandings of citizenship are underpinned by four main themes: citizenship as identity and membership, citizenship as rights, citizenship as political participation and citizenship as a legal status: see Bosniak, “Citizenship Denationalized” (2000) 7 Indiana Journal of Global Legal Studies 447. 89 The history and operation of Australian citizenship legislation is discussed in detail in Chapter 4. 90 Australian Citizenship Act 2007 (Cth) s 12(1)(a). In H v Minister for Immigration and Citizenship (2010) 272 ALR 605, the Federal Court recognised that the meaning of “parent” is not limited to biological parents and encompasses the ordinary English meaning of the word. 91 Australian Citizenship Act 2007 (Cth) s 12(1)(b). 92 Australian Citizenship Act 2007 (Cth) s 13(1). 93 Australian Citizenship Act 2007 (Cth) s 14. 94 The terminology was originally that of “naturalisation”. 95 Australian Citizenship Act 2007 (Cth) s 16.

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conferral,96 in circumstances of statelessness97 or if adopted in accordance with the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption.98 Children’s citizenship may cease when their parent’s citizenship is lost due to renunciation99 or revocation.100 The Minister has a discretion also to revoke the child’s Australian citizenship.101 Finally, children are also affected in their own right by the 2015 Amendment Act which introduced further avenues for loss of citizenship, including reducing the age for these provisions to apply. Under s 35 of the 2007 Act, a child aged 14 years or older will automatically cease to be an Australian citizen if they are a national or citizen of a foreign country and they either serve in the armed forces of a country that is at war with Australia or fight for, or are in the service of, a declared terrorist organisation.102 The service or fighting must occur outside Australia.103 The person’s citizenship ceases at the time the person commences to so serve or fight.104 The provision operates automatically and does not require the Minister to make a decision. Section 35 applies to any Australian citizen child aged 14 or over who is a citizen of a country other than Australia, regardless of how the person became an Australian citizen (including a person who became an Australian citizen at birth). The person need not hold nationality or citizenship of the country in whose armed forces they serve; any dual citizenship is sufficient to invoke the provision. The 2007 Act provides a specific exception for conduct of Australian law enforcement or intelligence bodies or in the course of duties to the Commonwealth.105 If the Minister becomes aware of conduct that has caused a person to cease to be an Australian citizen, the Minister must give (or make reasonable attempts to give) written notice106 to that effect at such time 96 Australian Citizenship Act 2007 (Cth) s 21(5). Under s 25(4), where a child under the age of 16 makes an application for citizenship by conferral under s 21 at the same time as one or more of their parents, the approval of the child’s application is conditional on the approval of their parents’ application. 97 Australian Citizenship Act 2007 (Cth) s 21(8). 98 Opened for signature 29 May 1993, Hague Conference on Private International Law Convention 33 (entered into force 1 May 1995) (Hague Convention); Australian Citizenship Act 2007 (Cth) s 19C. 99 Under the Australian Citizenship Act 2007 (Cth) s 33. 100 Under the Australian Citizenship Act 2007 (Cth) ss 34 and 34A. 101 Australian Citizenship Act 2007 (Cth) s 36. 102 Australian Citizenship Act 2007 (Cth) s 35(1)(a), (b). 103 Australian Citizenship Act 2007 (Cth) s 35(1)(c). 104 Australian Citizenship Act 2007 (Cth) s 35(1)(a), (b). 105 Australian Citizenship Act 2007 (Cth) s 35AB. 106 Section 35B of the Australian Citizenship Act 2007 (Cth) prescribes certain contents the notice must contain.

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and to such persons as the Minister considers appropriate, unless the Minister is satisfied that to do so could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations (a determination which must be reconsidered at least every six months for five years from the date on which it was made).107 The Minister may exempt individuals from the operation of s 35.108 However, the Minister does not have a duty to consider whether to exercise the power to exempt an individual from the operation of the provision.109 The rules of natural justice apply to a decision by the Minister to make, or not make, a determination to rescind a notice or exempt a person from the effect of s 35, but do not apply to any other decision, or the exercise of any other power, by the Minister under this section (including any decision whether to consider exercising the power in s 35(9) to make a determination).110 A person who loses their citizenship under s 35 is (subject to the operation of provisions deeming citizenship never to have ceased111 and conferring a discretion on the Minister to make a determination in favour of the person retaining their citizenship112) not eligible to resume their Australian citizenship.113 These changes to the threshold age for loss of citizenship are significant as a matter of law and policy.

Children’s citizenship beyond the 2007 Act [7.90] The Australian Citizenship Act 2007 (Cth) governs children’s entitlement to citizenship as a legal status through the regulation of the acquisition, conferral and cessation of Australian citizenship. However, the significance of children’s citizenship (both in its acquisition and loss) resonates beyond this legal classification based on legislatively prescribed requirements.114 Australian citizenship entitles children to certain rights. As Linda Bosniak explains, “the enjoyment of rights is the defining feature of societal membership”.115 Indeed, Australian legislation “attaches considerable 107 Australian Citizenship Act 2007 (Cth) s 35(5) – (7). 108 Australian Citizenship Act 2007 (Cth) s 35(8) – (14). 109 Australian Citizenship Act 2007 (Cth) s 35(10). 110 Australian Citizenship Act 2007 (Cth) s 35(17). 111 Australian Citizenship Act 2007 (Cth) s 35(19). 112 Australian Citizenship Act 2007 (Cth) s 35(9). 113 Australian Citizenship Act 2007 (Cth) s 36A. Resumption of citizenship is discussed in Chapter 4 at [4.960]. 114 For a more detailed discussion, see Rubenstein and Field, “Conceptualising Australian Citizenship for Children: A Human Rights Perspective” (2013) 20 Australian International Law Journal 77. 115 Bosniak, “Citizenship Denationalized” (2000) 7 Indiana Journal of Global Legal Studies 447.

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weight to the concept of Australian citizenship … bringing with it special rights and obligations”.116 Although most Australian legislation does not discriminate between citizen and non-citizen Australian residents,117 certain rights are limited to citizens. Most significant for children are the distinctions made between citizens and non-citizens in the Migration Act 1958 (Cth),118 including citizens’ right of re-entry to Australia.119 The right of re-entry is perhaps the central element of the importance of citizenship to children’s human rights. A right of re-entry to Australia means a right to remain resident in Australia, thereby securing the protection of the spectrum of legislative rights that come with that residence. In addition, citizenship may also give rise to certain common law rights for children. In the High Court, Gaudron J has recognised that “[c]itizenship … involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability”.120 In the context of reviewing the decision to deport a non-citizen father who had children who were Australian citizens, Gaudron J set out one such obligation, in that: citizenship carries with it a common law right on the part of children and their parents to have a child’s best interests taken into account, at least as a primary consideration, in all discretionary decisions … which directly affect that child’s individual welfare.121

Considering citizenship in the context of possessing rights highlights the importance of citizenship for children, not only for securing children’s entitlement to certain statutory rights, but to fundamental common law rights that exist independently of legislation and international law to protect the most vulnerable children in our community. Another central aspect of children’s citizenship is political participation. Historially, assumptions regarding children’s competence and capacity have meant that childhood and citizenship in a political sense have been 116 Re Khoi Tri Tang (also known as Chi Tzo Tseng) and Candice Hui Nui Cho and the Honourable Christopher John Hurford, Minister of State for Immigration and Ethnic Affairs [1986] FCA 214 at [30]–[31]. 117 See discussion in Chapter 5 where all forms of discrimination are canvassed.. 118 Other significant statutes discriminating between citizens and non-citizens include the Commonwealth Electoral Act 1918 (Cth), the Australian Passports Act 2005 (Cth) and the Higher Education Support Act 2003 (Cth). The Commonwealth Electoral Act 1918 (Cth) and Australian Passports Act 2005 (Cth) respectively restrict the rights to enrol to vote in Australian elections and to hold an Australian passport to citizens. Access to Commonwealth government-supported higher education in Australia is limited to Australian citizens and permanent humanitarian visa-holders, with only limited exceptions: see Higher Education Support Act 2003 (Cth) ss 90.5, 104.5, 118.5, 126.5, Sch 1A para 44. For a discussion of federal Acts that discriminate on the basis of citizenship and residence, see Chapter 5 where all forms of discrimination are canvassed. 119 Migration Act 1958 (Cth) s 42. 120 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 304. 121 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 304.

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considered incompatible.122 In Australia, children’s political engagement is limited by statutory restrictions – for example, that an Australian citizen must be 18 years old to vote.123 However, there is a growing awareness in society of young people as individuals with legitimate views to be heard.124 Children in Australia are gradually being permitted to participate in society, and act as citizens by exercising the rights that citizenship confers.125 Children’s rights to participate have been recognised in Australian domestic legislation,126 focusing not only on the fulfilment of children’s basic needs, but on the recognition of their individuality and participation in society.127 Significantly, these opportunities for children’s political engagement are not limited to children who hold the legal status of citizen. Opportunities for children’s participation exist, and evidence a certain degree of political engagement by children in Australia, and not just those who are legally citizens. Beyond rights and political participation, citizenship can be essential to securing identity. “[M]embership of the community in the full sense includes social citizenship and this is not confined to legal citizens.”128 While identity may not be a clearly definable legal concept, it is a concept grounded in an individual’s significant relationships and social and geographic connections.129 These connections can be just as meaningful to children as they are to adults. In Australia, citizenship is the legal prerequisite for belonging to the national group. However, a child may identify as Australian without 122 Bessell, “Betrayal and Broken Ties: British Child Migrants to Australia, Citizenship and Identity” in Jenkins, Rubenstein and Nolan (eds), Allegiance and Identity in a Globalised World (2014). 123 Commonwealth Electoral Act 1918 (Cth) s 93. 124 New South Wales Law Reform Commission, Young People and Consent to Health Care, Report No 119 (2008) at [2.18]. 125 For example, under s 60CC(3)(a) of the Family Law Act 1975 (Cth), in determining what is in a child’s best interests, the court must consider “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”. 126 For example, Children and Young People Act 2008 (ACT) s 7(e)(ii); Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(2)(a); Commission for Children and Young People Act 2000 (Qld) s 6(2)(b); Children’s Protection Act 1993 (SA) s 4(4)(d); Children, Young Persons and the Families Act 1997 (Tas) s 8(3); Children, Youth and Families Act 2005 (Vic) s 11(f), (g); Children and Community Services Act 2004 (WA) ss 8(1)(f), 10. 127 New South Wales Law Reform Commission, Young People and Consent to Health Care, Report No 119 (2008) at [2.16]. 128 Rubenstein and Adler, “International Citizenship: The Future of Nationality in a Globalized World” (2000) 7 Indiana Journal of Global Legal Studies 519 at 527; Rubenstein, “Globalization and Citizenship and Nationality” in Dauvergne (ed), Jurisprudence for an Interconnected Globe (2003). 129 Rubenstein and Adler, “International Citizenship: The Future of Nationality in a Globalized World” (2000) 7 Indiana Journal of Global Legal Studies 519 at 527; Rubenstein, “Globalization and Citizenship and Nationality” in Dauvergne (ed), Jurisprudence for an Interconnected Globe (2003).

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being a citizen. Indeed, in a number of cases concerning applications for Australian citizenship by non-permanent residents under the former s 21(5) of the Act, the Administrative Appeals Tribunal drew on analysis of a child’s sense of identification with the Australian community as the basis of a decision to grant a child Australian citizenship.130 This evidences a recognition of the importance of Australian citizenship, not only in securing children’s rights, freedoms and political identity, but in recognising and formalising their identity. The issue in Australia is the extent to which current citizenship law and policy adequately achieve these outcomes. It has been argued that the 2009 amendment to s 21(5), in particular, significantly undermines citizenship decision-makers’ scope to recognise children’s citizenship in the non-legal sense – for example, by identification with the Australian community – with a formal conferral of Australian citizenship.131 Further, by requiring all applicants for a conferral of Australian citizenship to be permanent residents, the amendment makes eligibility for citizenship dependent on a child’s visa status which, more often than not, is tied to the status of their parents. Such amendments arguably undermine the realisation in Australia of the rights enshrined in the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption.

Future of citizenship for children [7.100] The concept of children’s citizenship is evolving in Australia and is not yet fully developed. Two of the key challenges involve tensions in the legal recognition of children’s citizenship under the Australian Citizenship Act 2007 (Cth), and in the barriers to facilitating children’s active participation as citizen members of the Australian community. First, in recent years, children’s legal avenues to citizenship have been examined through the lens of an immigration policy focused on exclusion, and a concern to prevent children and their families from using citizenship to obtain an immigration advantage. Australian citizenship law largely links children’s legal status with their parents’ citizenship or residency. The fact that children do not become citizens automatically unless their parents are permanent residents or citizens is the first expression of a child’s citizenship being linked to their parents’. In addition, the Committee on the Rights of the Child has repeatedly highlighted Australia’s failure to ensure that no child is deprived of 130 See, eg, Re SNMX and Minister for Immigration and Citizenship [2009] AATA 539; Re Paul and Minister for Immigration and Citizenship [2009] AATA 97; Re Raisini and Minister for Immigration and Citizenship [2008] AATA 640; Re Choi and Minister for Immigration and Citizenship [2008] AATA 726. 131 See Rubenstein and Field, “Citizens in Their Own Right: Achieving Adequate Recognition of Children in Australia’s Immigration and Citizenship Framework” in Crock (ed), Creating New Futures: Settling Children and Youth From Refugee Backgrounds (2015) Ch 14.

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“citizenship on any ground, regardless of the status of his/her parents”.132 The provisions of the 2007 Act concerning the cessation of a child’s citizenship when a parent loses their citizenship illustrate the Act’s failure to account for children as individual citizens in their own right, removed and separate from the potential immigration status of their parents. The amendment to s 21(5) in 2009 arguably eroded even further the recognition of children as citizens in their own right. Thus, there is a tension between the movement towards a more inclusive legal notion of citizenship that is capable of recognising children’s claims to Australian citizenship in their own right, and the more immigration-focused policies of successive Australian governments. Second, for children who are Australian citizens in the legal sense, there is still some way to go to properly define the meaning of this citizenship. As discussed above,133 children’s participation is facilitated in certain contexts. Poignantly, too, the threshold age for certain sections of the Act has been lowered to enable children to be stripped of their citizenship. In addition to this move of exclusion, barriers to children’s political participation persist, particularly in notions of children’s competence and their place in public affairs. As children’s rights and their role as active participants in society become more widely accepted, the concept and consequences of children’s citizenship in Australia may indeed expand too. There is every possibility that growing awareness of children’s citizenship in Australia may help to define the meaning of citizenship for Australians of all ages.

FUTURE OF CITIZENSHIP AND NATIONALITY IN A GLOBALISED WORLD [7.110] “Globalisation” is a term of multidimensional import.134 The term is used broadly in this context to “refer to those trends, processes and interactions which are making the world more interdependent in many complex ways, in respect of communications, cultures, language, and politics, not just the alleged development of a single world economy”.135 Thus, “globalisation” refers to the continued effect of the 132 Committee on the Rights of the Child, Consideration of reports submitted by States parties under article 44 of the Convention: Concluding observations: Australia, 60th sess, UN Doc CRC/C/AUS/CO/4 (28 August 2012) at [38]; Committee on the Rights of the Child, Concluding observations of the Committee on the Rights of the Child: Australia, 16th sess, UN Doc CRC/C/15/Add.79 (10 October 1997) at [30]. In 2012, the Committee also made specific mention in this context of the child’s right to preserve his or her national identity in Art 8 of the Convention. 133 See [7.90]. 134 In “Globalisation and its Ambiguities: Implications for Law School Curricula Reform” 37 (1998) Columbia Journal of Transnational Law 57 at 60, Blackett argues that the differences in the employment of the term may be as important as the similarities. 135 Twining, “The Province of Jurisprudence Re-examined: Problems of Generalization in a Global Context” in Dauvergne (ed), Jurisprudence for an Interconnected Globe (2002). See also Twining, Taking Globalization Seriously: Towards General Jurisprudence (2000).

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internationalisation of the world framework. This is not a discussion of a world without nation-states,136 but rather of nation-states fundamentally altered by the growth and interconnection of relationships between nation-states and individuals around the world. It is not to say that the nation-state is obsolete or that globalisation is an entirely new phenomenon. The rapidity of the assault upon the nation-state by the quickening turns of globalisation is new, however, and states have sought for a range of economic and social directions to steady their state craft. Not surprisingly, the policy choices made by modern states have shifted with the gale-force pressure of the international political economy. Sovereignty has necessarily been altered without being abolished. States hold their place as key planks in the world system (though they are no longer the only important actors),137 but globalisation has transformed and will continue to revise the extent to which the ship of state is sovereign. For example, regional economies and markets have altered the ideal of sovereignty by promoting the free movement of goods and labour across nation-state borders. The General Agreement on Trade and Tariffs (GATT), the North American Free Trade Agreement (NAFTA), the European Union and the Asia Pacific Economic Community (APEC) are examples of the trend. Isolationist views of single-states about any matter wilt under the pressure of the new frameworks. As Kennedy argues, “globalisation threatens to undermine the assumed integrity of the nation-state as the central organizing unit of domestic and external affairs”.138 Related to trade, yet also distinct, is the development of global institutions with authority beyond single governments. These include organisations established to manage the machinery of trans-national activities.139 Financial markets are one example where the massive ebb and flow of international capital is beyond the control of nation-states, however constituted. A contrasting example is the World Trade Organisation (WTO), again evidencing global institutional development. Furthermore, procedures to resolve disputes between countries, if we take WTO as a case in point, are more legalistic and, therefore, more binding over the

136 For a more radical proposal, see Pendleton, “Our Allegiance – Australians or Global Citizens?” (1999) 6 E Law – Murdoch University Electronic Journal of Law available: http://www.murdoch.edu.au/elaw/issues/v6n3/pendleton63.html. 137 In fact, Paul Kennedy argues that even if the autonomy and functions of the state have been eroded by transnational trends, no adequate substitute has emerged to replace it as the key unit in responding to global change: see Kennedy, Preparing for the 21st Century (1994) p 134; Hirst and Thompson, “Globalization and the Future of the Nation State” (1995) 24 Economy and Society 408. 138 Kennedy, Preparing for the 21st Century (1994) p 53. 139 Held discusses this as the disjuncture of international organisations: see “Democracy, the Nation-state and the Global System” (1991) 20 Economy and Society 138 at 152.

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participants, the nation-states.140 Thus, global regimes and institutions regulate matters beyond the control of any single government. Consequently, national sovereignty is inevitably undermined. Supranational institutions, such as the United Nations General Assembly and Security Council, the International Court of Justice and the European Court of Justice, to name but a few, are additions to this picture. These bodies are responsible to a world where borders and national laws are less relevant, and “universal principles”141 are called upon to determine disputes within the international community. The whole development of international law and, more particularly, of a human rights framework, provides for global accountability of a new order since the human rights framework deals with citizens within nation-states and undermines older notions of sovereignty articulated in international law whereby matters within a country were solely for its own determination. The human rights framework highlights the fact that a state can no longer be protected from scrutiny in the treatment of individuals within its territory.142 In addition to these developments, there is growing recognition that many issues of policy for individual states are not the sole concern of the nation-state but of the global order. This recognition dates back to the beginning of the nation-state: postal reciprocity, international travel and communication were, and will continue to be, affected by this reality. Environmental and nuclear problems represent pressing current concerns. Single nation-state action will not be sufficient to deal with global disorder. The “interconnectedness of global changes [is] now affecting our whole planet”.143 Many writers refer to this phenomenon as an expression of a global civil society.144 Adding to the picture is the work of 140 See Rubenstein and Schultz, “Bringing Law and Order to International Trade: Administrative Law Principles and the GATT/WTO” (1996) 12 St John’s Journal of Legal Commentary 271. 141 There is a valuable debate over the terminology of universal human rights: see Murumba, “Cross-Cultural Dimensions of Human Rights” in Anghie and Sturgess, Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (1998); Cerna, “Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts” (1994) 16 Human Rights Quarterly 740; An-Na’im, “What Do We Mean by Universal?” (1994) 4/5 Index on Censorship 120; and Kim, “Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism” (1993) 25 Columbia Human Rights Law Review 49. 142 See Hernandez-Truyol, “Reconciling Rights in Collision: An International Human Rights Strategy” in Perea, Immigrants Out (1997) and “Natives, Newcomers and Nativism: A Human Rights Model for the Twenty-first Century” (1996) 23 Fordham Urban Law Journal 1075, both of which argue that legislative proposals, such as the Californian Proposition 187, are contrary to the international human rights framework and as such could be fought against and potentially invalidated. 143 Kennedy, Preparing for the 21st Century (1994) p 114. 144 See Falk and Strauss, “Voting in Favour of Global Government”, Foreign Affairs, reprinted in the Australian Financial Review (12–16 April 2000) Review 6. There is also

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non-government and other non-state based organisations, which is an expression of politics beyond the nation-state.145 Finally, the continued growth and reliance on information technology has made knowledge accessible well beyond borders. Electronic mail, the internet, social media, corporate intranets and other forms of dataflow all promote discussion and knowledge. International collaboration on research and other projects is thereby facilitated. Libraries across the world can be accessed by individuals tapping away at their desks. Thus, the global framework has moved well beyond the dissemination of knowledge through television networks and wire services that already contribute to our knowledge of issues and events outside domestic borders. This dissemination of knowledge has meant that the concept of globalisation includes the “the compression of the world and … the intensification of the consciousness of the world as a whole”.146 People are certainly directly affected by these changes, but there is also a keen consciousness of other changes that will directly affect us, but which are yet to come. As Professor Jonathan Friedman argues, the essence of globalisation “resides in the consciousness of the global, that is consciousness by individuals of the global situation, specifically that the world is an arena in which we all participate”.147

Globalisation’s impact on Australian citizenship [7.120] In many ways, globalisation and the movement of citizens beyond nation-states have their own dynamic impact upon Australian domestic discussions about citizenship. This is clearly seen in the discussion about dual citizenship in Australia. The former s 17 of the Australian Citizenship Act 1948 (Cth) and its preclusion of adopting another citizenship without losing Australian citizenship, was an issue for many Australians due to the fact that they have opportunities to travel, work and reside in other countries and so take up other citizenships. The Australian Citizenship Council recognised this in its report: One area of change which has implications for Australian Citizenship has been the increasing mobility of the Australian population which is taking place in the context of greater movements of people around the world. The permanent much concern about the ramifications for democracy in such a context. For a discussion of some of those issues, see Cochran, “Democracy, Global Governance and Public Spheres in International Relations” (Paper presented for APSA Annual Meeting 1998, Boston, Mass) (on file with author). 145 See, for instance, Wapner, “Politics Beyond the State: Environmental Activism and World Civic Politics” (1995) 47 World Politics 311. 146 Robertson, Globalization: Social Theory and Global Culture (1992), quoted by Friedman, Cultural Identity and Global Process (1994) p 196. Note, however, the persuasive comments of Kennedy, that while the global economy is becoming more integrated and richer overall, the wealth is uneven: see Kennedy, Preparing for the 21st Century (1994) p 49. 147 Friedman, Cultural Identity and Global Process (1994) p 196.

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emigration figure is the highest in twenty-six years and reflects increasing internationalization of markets and greater overseas opportunities for Australians in fields of business and education. Internationally, these kinds of movements have led many comparable countries to change their laws no longer stripping citizenship from their internationally mobile citizens.148

The impact of technology has its own impetus on these changes. For instance, an expatriate Australian group called the “Southern Cross Group”149 utilises the world wide web, email networks and the internet in various guises. It describes itself as: an international non-profit advocacy organisation which speaks on behalf of the some 820,000 Australians who live overseas … It is the Southern Cross Group’s philosophy that the Australian expatriate community is an integral part of Australia in a globalising world, despite the fact that its members are geographically outside Australia’s territorial boundaries.150

This is another expression of the impact of globalisation upon governance and is relevant to the proposal in 2000 of the South Australian Government to enable expatriates to vote.151 While the South Australian proposal did not eventuate, these developments remind us of a new form of citizenship of virtual communities impacting upon voting rights and notions of governance. The effects of globalisation are also highlighted in the suggestion of a joint Australia-New Zealand citizenship by New Zealand’s Finance Minister, Dr Michael Cullen, in 2000.152 While the proposal was not taken seriously by the Australian Government at the time, it is a reminder of global moves toward regional citizenship, as mentioned above, as seen, for instance, in the European Union.153 The issues raised by Michael Cullin regarding reciprocal rights of citizenship display citizenship as a tool for more effective integration between the two countries’ economies. Cullen stated that the fact that the question of rights of citizenship in both countries has had a lower profile: 148 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 39. 149 Southern Cross Group: see www.southern-cross-group.org.

[email protected];

website:

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150 See website: http://www.southern-cross-group.org/general/whoarewe.html. 151 See below, discussion at [7.130]. Note that Australian citizens living outside Australia are entitled to remain on the electoral roll in certain circumstances: see ss 94 and 94A of the Commonwealth Electoral Act 1918 (Cth) and the discussion on this issue in Chapter 6 at [6.170]. This proposal is not unique to Australia. In 2014, the Expatriate Party of New Zealand, based in Perth, was established to represent in the upcoming general election in New Zealand the interests of New Zealand citizens living in Australia. 152 This was raised in a speech delivered on 9 August 2000 to Deloitte Touche Tohmatsu and the Council for Economic Development of Australia, Melbourne (copy on file with the author). The speech was reported in The Australian (10 August 2000): Haslem, “Kiwis Float Plan for Joint Citizenship”. 153 See further, Hansen and Weil, Towards a European Nationality: Citizenship, Immigration and Nationality Law in the EU (2001) and the Special Issue, “Union Citizenship” (2001) 20 Law and Philosophy 233 at 371.

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is surprising because we had an open border for people long before we had an open border for goods … [I]n fact so ingrained is the notion of freedom to move across the Tasman in our respective national psyches that very few of our respective nationals bother to change citizenship, even when in their own minds they have made a permanent shift in abode.

This freedom of movement was also the reason why the then Australian Immigration Minister, Phillip Ruddock, was reported as having attacked the New Zealand Government’s decision in September 2000 to grant illegal immigrants in New Zealand an amnesty to stay. Once these immigrants had residency permits in New Zealand, they would then have a right of free movement into Australia.154 Interestingly, however, and perhaps as part of the Australian resistance to such a plan, the Australian Government changed the legislation regarding the right of New Zealanders to take up Australian citizenship.155 This response reflects another consequence of globalisation, also noted in the Australian Citizenship Council’s report: Although the trend to greater global connections and the emergence of transnational entities, such as the European Union, raise new dimensions to citizenship issues, the breakdown of a number of larger nation-states, and the emergence of many new ones (with crucial citizenship consequences for the people affected) has reinforced the continuing importance of the legal status of citizenship and the need for good public policy in this area.156

In many ways, issues such as migration and social security welfare strike at the other end of globalisation’s impact. As Catherine Dauvergne writes: [M]igration law is an ideal arena for testing some of the central propositions of globalisation theory. In this arena the nation-state is retaining its relevance through the power to exclude; to divide even its resident population into “us” and “them” groupings.157

This is evident in the Australian policy regarding New Zealand. It is even more evident in the reactionary actions of the Australian Government in response to increasing numbers of unauthorised arrivals of refugees in Australia by boat. A defining incident occurred in 2001, when over 400 unauthorised refugee applicants were rescued from their sinking boat by the Norwegian ship, the MV Tampa. The Australian Government refused 154 Reported by Dore in “Canberra Rues NZ Amnesty”, The Australian (21 September 2000) p 25. 155 The Australian Citizenship Instructions were amended so that New Zealand citizens holding Special Category Visas no longer qualify as permanent residents for the purposes of acquiring a grant of Australian citizenship under the 1948 Act: see Australian Citizenship Instructions (Cth) (25 February 2015) at [1.4] and Ch 14. 156 Australian Citizenship Council, Australian Citizenship for a New Century (February 2000) p 38. 157 Dauvergne, “Introduction” in Dauvergne (ed), Jurisprudence for an Interconnected Globe (2002). Catherine Dauvergne has also written about the way migration law is used as a tool for determining membership in Dauvergne, “Citizenship, Migration Laws and Women: Gendering Permanent Residency Statistics” (2000) 24 Melbourne University Law Review 280.

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to admit the asylum seekers. An application to the Federal Court of Australia challenging the lawfulness of the government’s actions158 led to the hastily-adopted amendments to the Migration Act 1958 (Cth) in the final days of the 39th Parliament,159 including measures to counter unauthorised arrivals.160 A distinction between temporary and permanent visa status was a device introduced by the government to discourage unauthorised arrivals. Without permanent resident status, a person can never apply for Australian citizenship. In the years since, successive governments have adopted increasingly severe measures in efforts to exclude refugees from Australia, particularly those who come by boat and are now officially called “illegal maritime arrivals”.161 Despite globalisation’s inroads into freedom of movement, that freedom is only the preserve of certain people. The reliance on sovereignty is still a valuable tool of governments, and the Australian Government’s response to the unlawful arrival of refugee applicants is a reminder of the use of sovereignty as a tool of exclusion.162 This reminder has reared its head powerfully with the most recent changes to the Act. The statement of purpose of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) includes “that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia”. The rise of terrorism internationally has led to the government asserting its sovereignty in a way that uses citizenship as a tool of exclusion.163

158 See Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs (2001) 182 ALR 617; [2001] FCA 1297 and the Full Court Appeal, Ruddock v Vadarlis (2001) 183 ALR 1; [2001] FCA 1329. 159 On 26–27 September 2001, eight separate Acts were passed by Parliament making significant changes to the Migration Act 1958 (Cth). 160 The measures to counter unauthorised arrivals included the Border Protection Act 2001 (Cth), the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth), the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) and the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth). 161 These include offshore processing, the extension of the excision policy to the Australian mainland and the introduction of “Operation Sovereign Borners”, a military-led border security operation targetting boat arrivals. For a timeline of developments, see Refugee Council of Australia, Timeline of Major Events in the History of Australia’s Refugee and Humanitarian Program (2014): http://www.refugeecouncil.org.au/getfacts/timeline. 162 See Rubenstein, “Citizenship, Sovereignty and Migration: Australia’s Exclusive Approach to Membership of the Community” (2002) 13 Public Law Review 102-110; see also Rubenstein and Field, “Who We Are Not Is Not Who We Are: Australia’s Exclusionary Approach to Citizenship” in Douglas and Wodak (eds), Refugees and Asylum Seekers: Finding a Better Way (2013) p 88. 163 See further discussion of the concerns about this in Chapters 1 and 4 generally and in particular at [1.130] and [4.1270].

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Globalisation’s impact on democracy and governance [7.130] In 2000, a consultation paper by the South Australian Government proposed that two seats in the South Australian Parliament’s Upper House be reserved for “virtual voters”, thus giving expatriates a chance to participate in home politics. The objectives of the virtual electorate initiative were to: encourage expatriates to continue to contribute to their home State; bring global representation and perspectives into South Australia’s legislature for the benefit of all citizens; reaffirm South Australia’s position as a leader in democratic reform and an information-enabled community.164

While the proposed changes did not eventuate, they highlight the way in which the technological and global realities of the 21st century impact the right to vote, a fundamental expression of political citizenship, and raise new issues of inclusion and exclusion. This proposal was a more broad and inclusive approach than that of the current Commonwealth Electoral Act 1918 (Cth), which allows Australian citizens resident overseas to remain on the electoral roll, but only in certain circumstances.165 This proposal is a reflection of the changing notion of governance in light of the changing nature of the nation-state and the influence of globalisation.166 Voting and representation reflect political power and governance. Domestically, citizens have the right to, and, in most instances, are obliged,167 to vote for a person to represent them in the democratic system of government. Underlying this political right and responsibility is the belief that those elected persons will have control over the process of governing; they represent the will of the people, and make laws to govern society on the community’s behalf: “Sovereign nation states [have] claimed as their distinctive feature the right to determine how any activity within their territory [is] governed.”168 Citizenship, therefore, involves the ability to influence, and be part of, that governance; to 164 Government of South Australia, Consultation Paper, Our Plan: Virtual Electorate (31 December 2000): (copy on file with author); see also Mitchell and Henderson, “State Considers Virtual Electorates”, The Australian (22 August 2000) p 33. For further discussion of e voting see Holmes, e-voting: the promise and the practise (Parliament of Australia, Department of Parliamentary Services, October 2012) at http:// parlinfo.aph.gov.au/parlInfo/download/library/prspub/1979752/upload_binary/ 1979752.pdf;fileType=application%2Fpdf 165 See ss 94 and 94A of the Commonwealth Electoral Act 1918 (Cth). 166 In its submission to the Department of Immigration and Multicultural Affairs regarding the repeal of s 17 of the Australian Citizenship Act 1948 (Cth), the Southern Cross Group recommended amendment of the Commonwealth Electoral Act 1918 (Cth) to ensure Australian citizens overseas the right to vote without unnecessary restrictions. For the group’s submission, see: http://www.southern-cross-group.org. 167 Australia is one example of a country where voting in the Federal and State elections is mandatory; failure to do so is punishable by a monetary fine. 168 Hirst and Thompson, “Globalization and the Future of the Nation State” (1995) 24 Economy and Society 408 at 422.

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influence the political outcomes of the state. But the process of “governance” has changed substantially in light of globalisation. Governance now exists beyond the realm of the state, through a “wide variety of public and private, state and non-state, national and international, institutions and practices”.169 People who are not citizens of a particular territory can, nevertheless, influence its governance. These people include non-citizens in multinational companies who influence the economic decisions made by states170 and individuals participating in international non-government organisations who have lobbied successfully in many countries.171 The non-government organisations, such as Greenpeace, Amnesty International, the world’s religious bodies and other international organisations, have the capacity to lobby domestic governments when a policy issue interesting to them is on the agenda. These organisations have developed extensive networks shaping and influencing a significant amount of the United Nation’s work and creating a framework for an international civil society.172 The activity of the United Nations impacts on domestic governance, as do the regional arrangements between governments. Each of these examples illustrates the capacity of non-nation-state players to influence the governance of a range of nation-states. This may not be formal representation in the governmental system of the state, but it is a significant substantive governance. As a consequence, individual citizens within the state have less responsibility, power and political control in their own nation-state. The value of citizenship for political governance has reduced in the nation-state. There are many who are concerned about these changes, fearing individuals have less and less control over their own lives and that existing inequalities will be further entrenched.173 However, these changes have the potential to be used positively in the 21st century. Rather than being concerned that citizenship is less meaningful in the nation-state context, it can be refigured to entitle the same individuals to political participation both within the nation-state and beyond the nation-state. This could enhance an individual’s political power in a more 169 Hirst and Thompson, “Globalization and the Future of the Nation State” (1995) 24 Economy and Society 408 at 422. 170 An example in Australia is the car industry and its lobbying over tariff levels. 171 The growth of non-governmental organisations is terrific. Even in 1991, Kenneth Gergen referred to 20,000 transnational organisations which had emerged since 1950 devoted to social change: see Gergen, The Saturated Self: Dilemmas of Identity in Contemporary Life (1991) p 255. 172 See Otto, “Nongovernmental Organisations in the United Nations System: The Emerging Role of International Civil Society” (1996) Human Rights Quarterly 107; Posner and Whittome, “The Status of Human Rights NGOs” (1994) 25 Columbia Human Rights Law Review 269; Cohen, “The Role of NGOs in the Drafting of the Convention on the Rights of the Child” (1990) 12 Human Rights Quarterly 138; and Weiss and Gordenker (eds), NGOs, the UN and Global Governance (1996). 173 Otto, “Challenging the “New World Order”: International Law, Global Democracy and the Possibilities for Women” (1993) 3 Transnational Law and Contemporary Problems 371.

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global context.174 For instance, feminist groups around the world may be able to co-ordinate and deliberate on collective responses to global issues, as could other groups within various nation-states.175 To some extent, the concept of the citizen beyond one nation-state is already in existence within the European Union. This idea has been described as “transborder participatory democracy”,176 both at grassroots levels through the development of non-governmental organisations developing transnational links and coalitions, and through business and corporate frameworks. In this political context the state will have even less responsibility for governance, and the people themselves will have a more direct input into world politics.177 This idea is now developing well beyond the European Union. Richard Falk and Andrew Strauss have written about the creation of some type of popularly-elected global body not determined by nation-states, but rather by representatives of societies around the world.178 They argue that such a body could deal with the democratic deficit that is being highlighted by the anti-globalisation movements spreading the globe: “one crucial aspect of the rising disaffection with globalisation is the lack of citizen participation in the global institutions that shape people’s lives”.179 A popularly-elected body, as suggested by Falk and Strauss, may be an answer to the concerns that globalisation is lessening the value of democratic citizenship – that is, the direct involvement of citizens in their own domestic political context. Globalisation has been accused of widening the gap between power and people. In order to alleviate those concerns, there needs to be a conscious and active commitment to linking citizenship in the 21st century global context to the substantive political participation of all groups within society.180 This philosophy can be directed to the global context as much as to the domestic context. Indeed, 174 This also gives rise to consideration of granting voting rights to all residents in nation-states, rather than limiting those rights to citizens only. In New Zealand, s 74 of the Electoral Act 1993 (NZ) entitles permanent residents to be registered as electors. Both citizens and permanent residents must have resided in New Zealand continuously for six months: s 74(b). 175 See Otto, “Challenging the “New World Order”: International Law, Global Democracy and the Possibilities for Women” (1993) 3 Transnational Law and Contemporary Problems 371. 176 This is a term used by Ichiyo in “For an Alliance of Hope” in Brecher, Childs and (eds), Global Visions: Beyond the New World Order (1993) p 155. 177 Archibugi discusses this as cosmopolitan democracy, involving political representation for people beyond their borders and independently from their governments: see Archibugi, “From the United Nations to Cosmopolitan Democracy” in Archibugi and Held (eds), Cosmopolitan Democracy (1995) pp 134–135. 178 Falk and Strauss, “Voting in Favour of Global Government”, Foreign Affairs, reprinted in the Australian Financial Review (12–16 April 2000) Review 6. 179 Falk and Strauss, “Voting in Favour of Global Government”, Foreign Affairs, reprinted in the Australian Financial Review (12–16 April 2000) Review 6. 180 See Iris Marion Young’s views of radical democratic pluralism in Young, Justice and the Politics of Difference (1990) Ch 6.

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the fact that different groups have varying levels of power is often more transparent in the global context than in the domestic realm. In recognising that participation definitely will not be focused solely on the nation-state, attention can be directed to highlighting the power differentials in the global context. Once this is recognised, practical means of securing for different groups within the world community a place in world decision-making can be developed. This may mean advocating, for instance, that multinational corporations guarantee that there is representation within their decisionmaking structures for those affected by their decisions – that is, democratising the international business system as much as the political system. Similarly, it may mean advocating that non-governmental organisations be given voting rights in the United Nations or the development of a body such as that suggested by Falk and Strauss. These suggestions develop the radical democratic pluralism view of Iris Marion Young, which demands social equality (an aim of democratic governance) by acknowledging and affirming group difference and fostering participation for all groups within society. This must be extended into the global context and, if successful, it will make citizenship in the 21st century a more meaningful representation of political participation. It may mean that an Australian citizen from South Australia will eventually be able to vote in State elections, no matter where they reside, at the same time as voting for representatives in a global democratically-elected body committed to social justice on the world stage. Additionally, that person’s lobbying efforts regarding the regulation of workers in the motor industry may be directed at both forums. In this sense, citizenship in the future will be multifaceted and have varying significance – both in Australia and internationally.181

Globalisation and legislative expressions of membership [7.140] Finally, the broadest expression of citizenship in Australia is seen in the range of people included in social aspects of citizenship, in their entitlement to benefits and in their inclusion in a range of other expressions of membership. But this is certainly not absolute, as there is a significant range of categories of membership, working rights and mobility rights, and particularly political rights, which are exclusive. In all 181 Hungary provides yet another example of the varying consequences of membership. The Hungarian Parliament passed Act LXII of 2001, Hungarians Living in Neighbouring Countries, on 19 June 2001, entering into force on 1 January 2002. The Act applies to persons declaring themselves to be of Hungarian nationality who are not Hungarian citizens and who have their residence in the Republic of Croatia, the Federal Republic of Yugoslavia, Romania, the Republic of Slovenia, the Slovak Republic or the Ukraine, and who: (a) have lost their Hungarian citizenship for reasons other than voluntary renunciation; and (b) are not in possession of a permit for permanent stay in Hungary. Those individuals are not entitled to a range of rights ranging from education, social security, health services, travel benefits to employment. The Act is available in English, published by the American Society of International Law Stable URL: http:// www.jstor.org/stable/20694174.

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CH 7: Future of Australian Citizenship

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expressions of citizenship, legislation is easily changed by governments and governments are not necessarily motivated by moral or ethical considerations. One way forward in the future is to follow the proposal of Ruth Rubio-Marin, who argues that the most effective way of dealing with mass migration and the consequences of globalisation is to extend rights to all those persons within a territory. She argues that: all those who live on a permanent basis in a liberal democratic state ought to be considered as members of that democracy and thus share in the sphere of civic equality with the equal recognition of rights and duties.182

Therefore, they should be entitled to vote. Given that membership is a social fact – that is, we determine who are members of a community primarily through social factors, “such as living, working or raising a family and participating in the social and cultural life of a community”183 – then, morally, social members must also be entitled to full political membership and inclusion, Rubio-Marin argues. Throughout her book, she examines a range of arguments that are often used to deny non-citizens equality in the political community. For instance, she answers the argument that voting rights should only be extended to those who show their commitment to the polity through naturalisation by stating: “But isn’t choosing a country of destination and making it the centre of one’s personal and professional existence and/or family life a sufficient expression of one’s attachment to it?” Moreover, Rubio-Marin argues, “aliens could simply express this kind of commitment by actually exercising suffrage and engaging in the political debate”.184 It would be beneficial to discuss these arguments in the Australian context.

CONCLUSION [7.150] The future of citizenship in Australia is open. The government’s responses to “illegal maritime arrivals” and the spectre of international terrorist activities185 highlights the fact that questions of national sovereignty and citizenship will be of continuing relevance. A truly exclusive view of citizenship has continued to motivate the government response to the plight of asylum seekers. This response is similar in philosophy to the amendments to the Australian Citizenship Act 2007 (Cth) that are intended to strengthen the integrity of the citizenship process and which particularly affect children, and the 2015 amendments that enable dual citizens to be stripped of their Australian citizenship. 182 Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000) p 6. 183 Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000) p 21. 184 Rubio-Marin, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (2000) p 122. 185 Discussed above at [7.60].

422

Australian Citizenship Law

[7.150]

Questions of sovereignty will continue to frame future discussions about citizenship. However, this chapter has argued that despite this emphasis on domestic control, there are other global pressures that lessen the value of citizenship and nationality. Increasing global acceptance of children’s agency and individuality highlights the need to move towards a citizenship framework able to acknowledge children as citizens in their own right, rather than depending on the status of their parents. Moreover, a progressive, inclusive approach to citizenship is more deserving than an exclusive one. Amending the Australian Constitution is one context within which discussions about the future of Australian citizenship could occur. The central, core document delineating the framework of government and its constituent elements is the obvious place for distilling national and international argument about the place of citizenship in Australian society. Amendments to acknowledge and define the scope of citizenship would clarify its extent and operation amidst a confusing patchwork of legislation, and would crystallise the all-important questions of national identity. Within that core document could also be shaped the Australia we wish to present to the international community – an Australia that looks to exclude or include, dissuade or invite, close or open, not only the terms upon which citizenship is offered, but upon which citizenship is couched, considered and debated within Australian political discourse.

Appendix Definition of “protected person” under s 5 and additional countries under s 7 (persons having status of British subject) through Regulations: 1949-1987 The table below details regulatory changes affecting the definition of “protected person” as defined in s 5 of the Australian Citizenship Act, and persons having the status of British subject under s 7 of the Act in the Australian Citizenship Regulations. New countries added to the list in the right hand column have been italicised. See discussion in text at [4.160] and [4.170].

Reg

Effect of Reg

1949 1951

4 120

2

Regs first enacted Rule 4A inserted

1956

112

1959

23

1959 1960

78 62

1961

120

2 5

Repealed

2

Rule 5 repealed and substituted

2 5

1

Definition of “protected person”

Additional countries under s 7 through Regulations* (None) None • Australian protected persons (person born in New Guinea None or Nauru and is not a British subject) • British protected persons under the law of UK or NZ

• Australian protected person (person born in New Guinea None or Nauru and is not a British subject) • British protected persons under the law of UK or NZ

Rule 5A inserted Repealed

• Person born in New Guinea or Nauru and is not a British subject or registered under subreg (4) • Alien woman who has married an Australian protected person and whom Minister, in his discretion, has registered The State of Singapore • Person born in New Guinea or Nauru and is not a British None subject • Alien woman who has married an Australian protected person and whom Minister, in his discretion, has registered

Rule 5A inserted

• The Federation of Nigeria • The Republic of Cyprus • Sierra Leone

Australian Citizenship Law

SR

424

Year

Year

SR

Reg

Effect of Reg

1964

1

1

Rule 5A amended

Definition of “protected person”

Additional countries under s 7 through Regulations* • The Federation of Nigeria • The Republic of Cyprus • Sierra Leone • Tanganyika • Trinidad and Tobago • Uganda • Jamaica • Malaysia

1965

8

1

Rule 5A amended

• The Federation of Nigeria • The Republic of Cyprus • Sierra Leone • Trinidad and Tobago • Uganda • Jamaica • Malaysia • Kenya • Malawi

Appendix

• The State of Malta • The United Republic of Tanzania • Zambia

425

SR

Reg

Effect of Reg

1965

146

1

Rule 5A amended

Definition of “protected person”

Additional countries under s 7 through Regulations* • The Republic of Cyprus • Sierra Leone • Trinidad and Tobago • Uganda • Jamaica • Malaysia • Kenya • Malawi • Malta • The United Republic of Tanzania • The Republic of Zambia • The Gambia • Southern Rhodesia

Australian Citizenship Law

• The Federal Republic of Nigeria

426

Year

Year

SR

Reg

Effect of Reg

1967

149

1

Rule 5A amended

Definition of “protected person”

Additional countries under s 7 through Regulations* • The Federal Republic of Nigeria • The Republic of Cyprus • Sierra Leone • Trinidad and Tobago • Uganda • Jamaica • Malaysia • Kenya • Malawi • Malta • The United Republic of Tanzania • The Republic of Zambia • The Gambia • Southern Rhodesia • Singapore • Guyana • Botswana • Lesotho • Barbados Appendix

427

SR

Reg

Effect of Reg

1968

129

1

Rule 5A amended

Definition of “protected person”

Additional countries under s 7 through Regulations* • The Republic of Cyprus • Sierra Leone • Trinidad and Tobago • Uganda • Jamaica • Malaysia • Kenya • Malawi • Malta • Tanzania • The Republic of Zambia • The Gambia • Southern Rhodesia • Singapore • Guyana • Botswana • Lesotho • Barbados • Mauritius

Australian Citizenship Law

• The Federal Republic of Nigeria

428

Year

Year

SR

Reg

Effect of Reg

Definition of “protected person”

1970

9

2

Rule 5 amended

• Person born in New Guinea (whether before or after the commencement of these Regulations) and does not have the status of British subject • Alien woman who has married an Australian protected person and whom the Minister, in his discretion, has registered

3 1970

189

Rule 5A repealed Rule 5A inserted

Additional countries under s 7 through Regulations*

None • Barbados • Republic of Botswana • Republic of Cyprus • • • •

Fiji The Gambia Guyana Jamaica

• Republic of Kenya • Kingdom of Lesotho • Republic of Malawi • Malaysia • Malta • Mauritius Appendix

429

SR

1970

189

Reg

Effect of Reg

Definition of “protected person”

Rule 5A inserted (cont)

Additional countries under s 7 through Regulations* • • • •

Federal Republic of Nigeria Sierra Leone Republic of Singapore Southern Rhodesia

• United Republic of Tanzania • Kingdom of Tonga • Trinidad and Tobago • Uganda • Independent State of Western Samoa • Republic of Zambia 1973

29

2

Rule 5A repealed and substituted

• People’s Republic of Bangladesh • Fiji • Kingdom of Swaziland • Kingdom of Tonga • Independent State of Western Samoa

1973

196

4

Rule 5 amended

• Person born in New Guinea or Nauru and is not a British subject • Alien woman who has married an Australian protected person and whom Minister, in his discretion, has registered • Having been born outside New Guinea, child of person who was Australian protected person at time of child’s birth

Australian Citizenship Law

• Republic of Nauru

430

Year

Year

SR

Reg

Effect of Reg

1975

181

5 3

Rule 5A repealed Rule 5 amended

Definition of “protected person”

Additional countries under s 7 through Regulations* None

• Person who was Australian protected person before 16 September 1975 and has not acquired citizenship of any country (including Australia and Independent State of PNG) • Person who was born after 16 September 1975, has not acquired citizenship of any country (including Australia and Independent State of PNG), with a parent who was Australian protected person at time of child’s birth • Person who, on or after 16 September 1975, registered under subreg (4) as an Australian protected person and has not acquired citizenship of any country (including Australia and Independent State of PNG)

4

1976

269

Rule 5A inserted

• Grenada • Independent State of PNG

Rule 5A repealed and substituted

• Grenada • Independent State of PNG • Seychelles

Appendix

431

SR

1979

143

Reg

Effect of Reg

Additional countries under s 7 through Regulations* • Grenada • Independent State of PNG • Republic of Seychelles • Saint Lucia • Solomon Islands • The Cth of Dominica • Tuvalu

1980

339

1

Rule 5A repealed and substituted

• Grenada • Kiribati • Independent State of PNG • Republic of Seychelles • Saint Lucia • St. Vincent • Solomon Islands • The Cth of Dominica • Tuvalu • Zimbabwe

Australian Citizenship Law

Rule 5A repealed and substituted

Definition of “protected person”

432

Year

Year

SR

1981

112

Reg

Effect of Reg Rule 5A repealed and substituted

Definition of “protected person”

Additional countries under s 7 through Regulations* • Grenada • Kiribati • Independent State of PNG • Republic of Seychelles • Republic of Vanuatu • Saint Lucia • St Vincent • Solomon Islands • The Cth of Dominica • Tuvalu • Zimbabwe

1982

118

Rule 5A repealed and substituted

• Belize • Grenada • Kiribati • Independent State of PNG • Republic of Seychelles • Vanuatu • Saint Lucia • St Vincent • The Cth of Dominica • Tuvalu

Appendix

• Solomon Islands

• Zimbabwe

433

SR

1983

68

87

Effect of Reg

Definition of “protected person”

Rule 5A repealed and substituted

3

Rules 5 and 5A repealed

Additional countries under s 7 through Regulations* • Antigua and Barbuda • • • • • • • • • • • • •

None

Belize The Cth of Dominica Grenada Kiribati Independent State of PNG Republic of Maldives Republic of Seychelles Republic of Vanuatu Saint Lucia St Vincent Solomon Islands Tuvalu Zimbabwe

None

Australian Citizenship Law

1987

Reg

434

Year

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Index A Aboriginal Australians — see Indigenous Australians Acquisition of citizenship — see Application for citizenship — see Automatic acquisition of citizenship Administrative Appeals Tribunal (AAT) “good character”, decisions regarding, by, ...................................... [4.1090], [4.1100] Australian Citizenship Act 1948 (Cth), under, .......................................... [4.1100] Australian Citizenship Act 2007 (Cth), under, ......................................... [4.1090] merits review by, ..... [4.760], [4.1090], [4.1100], [4.1450], [4.1470] decisions made under Australian Citizenship Act 1948 (Cth), of, . [4.1100] decisions made under Australian Citizenship Act 2007 (Cth), of, ...................... [4.1090], [4.1450], [4.1470] decisions made under Citizenship Policy, of, .................................................. [4.760] Adoption application for citizenship by conferral, where overseas adoption not recognised by Australian law, ......... [4.470] — see also Application for citizenship application for citizenship by, where overseas adoption by Australian citizen in accordance with Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Int) or bilateral agreement, ... [1.10], [1.60], [4.120], [4.200], [4.280], [4.310], [4.370], [4.470]-[4.520], [4.1060]-[4.1100], [7.60], [7.80], [7.90] — see also Application for citizenship before 1 December 1998, .................. [4.480] current provisions, overview of, .... [4.500] exemption from pledge of commitment where, ........................................... [4.120] good character requirement, .......... [4.510], [4.1060]-[4.1100] grounds for refusal of application, ........................................................ [4.520] historical context, .............................. [4.490] on and from 1 December 1998, ........................................... [4.490]-[4.520] automatic acquisition of citizenship where adoption of permanent resident under Australian law by Australian citizen, ................. [1.60], [4.70], [4.200], [4.240], [4.280]-[4.310], [4.470], [7.80] — see also Automatic acquisition of citizenship

person adopted before 22 November 1984 excluded, ...................................... [4.290] person adopted on and from 22 November 1984 to 30 June 2007, ........................................................ [4.300] person adopted on and from 1 July 2007, ........................................................ [4.310] House of Representatives Standing Committee on Family and Human Services, Overseas Adoption in Australia (November 2005), ....................... [4.490] Age — see also Children automatic acquisition of citizenship by child on tenth birthday, where, .......... [1.60], [4.50], [4.240], [4.260], [4.270], [6.100], [7.80] — see also Automatic acquisition of citizenship impact on citizenship of, generally, ........ [1.20] renunciation of citizenship where service outside Australia in armed forces of enemy country or declared terrorist organisation, reduction of threshold age, ................. [7.80], [7.100] — see also Terrorism thresholds for eligibility to apply for citizenship — see Application for citizenship voting rights and, .......................... [1.20], [7.90] Aliens — see also Non-citizens administrative detention of, .................... [6.60] allegiance to foreign sovereign as defining characteristic, ....... [3.20], [4.40], [4.70], [4.120], [6.200] British subjects distinguished, .... [1.30], [1.40], [3.10], [3.20] Commonwealth power over, under Australian Constitution, ...... [1.30], [1.110], [2.230], [3.10], [3.20], [3.100], [3.110], [4.10]-[4.50], [4.70], [4.80], [4.120], [5.190], [6.20], [6.50]-[6.120], [7.30] — see also Australian Constitution exclusionary device, as, .... [1.110], [3.100], [6.50], [7.30] constitutional right to freedom from discrimination on basis of State residence, whether protects, ....... [6.40] defined by Australian Citizenship Act 1948 (Cth), ................. [4.150], [4.160], [4.190] removal of definition, ......... [4.150], [4.190] distinction between citizens and, as foundation of immigration law, .......................................................... [7.30] exclusion by colonies of, as common cause and motivating force behind Federation, ....................... [2.140], [4.20] importance of meaning of, ....................... [6.60]

450

Australian Citizenship Law

Aliens — cont lack of clarity as to who are, ...... [1.30], [4.50], [4.70], [6.40], [6.60]-[6.120] all non-citizens, whether, ....... [6.40], [6.70] British subjects, whether, ...... [4.40], [6.40], [6.70], [6.80] children, .................................... [4.40], [4.50] dual citizens, whether, ......... [4.70], [6.120] Papuans formerly Australian citizens, whether, ... [4.40], [6.80], [6.90], [6.110] people born in Australia, whether, . [6.70], [6.90], [6.100] stateless persons, whether, .. [4.40], [6.120] non-British subjects as, before and after Federation, ......................... [1.30], [1.40] “obnoxious citizenship” as likely reference in Australasian Federal Convention Debates (1890s) to exclusion of Asians and Indigenous Australians, .... [2.110] regulation of, ....... [1.110], [3.110], [4.20] — see also Australian Constitution central concern of Australasian Federal Convention Debates (1890s), ...... [4.20] first 48 years of Federation, in, ....... [3.110] judicial expresion of citizenship and, ........................................................ [1.110] restrictions on Asian (Chinese) immigrants from 1850s as background to Australasian Federal Convention Debates (1890s), .............. [2.40], [2.140] status under Australian Citizenship Act 1948 (Cth), ............................... [4.550], [4.570] White Australia Policy, ............ [2.140], [2.230], [3.40], [4.20] fear and antagonism towards aliens (especially Chinese) reflected in, .......................................................... [3.40] Allegiance central to citizenship / “membership of Australian community”, .......... [2.190], [3.110], [4.40], [5.30] determination of British subjecthood and, by place of birth (jus soli), ............... [3.20] dual citizenship and, .... [2.190], [3.20], [4.120], [4.1330], [7.120] express reference to, omitted from pledge of commitment, ............................... [4.120] foreign sovereign, to, as defining characteristic of alien, ... [3.20], [4.40], [4.70], [4.120], [6.200] globalisation, impact of, on, ... [2.190], [7.120], [7.130] importance of, highlighted by non-permittal of dual citizenship under Australian Citizenship Act 1948 (Cth), ........ [4.120] Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (4 September 2015), ...................................................... [4.1350] pledge of commitment as expression by “new Australians” of, .......................... [4.120]

renunciation of Australian citizenship by conduct by dual citizen inconsistent with, ..... [1.60], [1.100], [1.130], [2.160], [2.190], [3.110], [4.70], [4.110], [4.120], [4.200], [4.980], [4.1160], [4.1180], [4.1250]-[4.1270], [4.1330], [4.1350], [5.190], [6.20], [6.90], [6.110], [7.30], [7.40], [7.60], [7.80], [7.100], [7.150] — see also Cessation of citizenship — see also Terrorism Application for citizenship adoption overseas by Australian citizen in accordance with Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Int) or bilateral agreement, by, ........... [1.10], [1.60], [4.120], [4.200], [4.280], [4.310], [4.370], [4.470]-[4.520], [4.1060]-[4.1100], [7.60], [7.80], [7.90] before 1 December 1998, .................. [4.480] current provisions, overview of, .... [4.500] exemption from pledge of commitment where, ........................................... [4.120] good character requirement, .......... [4.510], [4.1060]-[4.1100] grounds for refusal of application, ........................................................ [4.520] historical context, .............................. [4.490] on and from 1 December 1998, ........................................... [4.490]-[4.520] application of law to person’s eligibility, time at which, .......... [4.200], [4.370], [4.540] citizenship test, .............. [1.10], [4.590], [4.610], [4.640], [4.680] — see also Citizenship test key determinant, where, .... [4.590], [4.610] not required, where, ........... [4.640], [4.680] conferral, by, ...... [1.10], [1.60], [1.130], [2.160], [3.50], [4.70], [4.120], [4.200], [4.220], [4.370], [4.470], [4.530]-[4.950], [4.1060]-[4.1100], [6.110], [7.30], [7.60], [7.80]-[7.100], [7.150] cancellation of approval of citizenship before commencement, where, ........................................................ [4.950] citizenship test not required, where, .......................................... [4.640], [4.680] commencement of citizenship after approval, ........................ [4.920], [4.950] exemption from pledge of commitment, where, ............................. [4.120], [4.930] general eligibility criteria, .. [1.60], [4.530], [4.590]-[4.630] good character requirement, .......... [4.590], [4.630], [4.640], [4.680], [4.730], [4.740], [4.1060]-[4.1100] historical background to, ... [4.530], [4.540] Minister’s decision, ........................... [4.910] overseas adopted children where adoption not recognised by Australian law, where, ........................................... [4.470] overview, ............................................ [4.530]

Index Application for citizenship — cont permanent resident aged 18 or over who satisfies general eligibility criteria and residence requirements and successfully completes citizenship test, where, . [4.530], [4.590]-[4.630], [4.760], [4.1060] permanent resident aged 18 or over with permanent or enduring physical or mental incapacity who satisfies residence requirements, where, .............. [4.530], [4.640]-[4.670], [4.760], [4.930], [4.1060] permanent resident aged 60 or over or aged 18 or over with hearing, speech or sight impairment who satisfies residence requirements, where, ............ [4.530], [4.680], [4.760], [4.1060] permanent resident aged under 18, where, . [1.10], [1.130], [4.200], [4.220], [4.530], [4.690]-[4.720], [7.30], [7.60], [7.80]-[7.100], [7.150] “permanent resident” defined, ....... [4.600] person born in Papua before 16 September 1975, where, ........ [1.10], [2.160], [4.530], [4.740], [4.930], [6.110], [7.60] person born ouside Australia to former Australian citizen, where, .......... [1.10], [4.530], [4.730], [7.60] pledge of commitment where, ...... [4.120], [4.530] — see also Pledge of commitment residence requirements, ...... [3.50], [4.470], [4.590], [4.620], [4.640], [4.680], [4.760]-[4.900] special eligibility provisions, ........... [1.60], [4.530], [4.640]-[4.750] stateless person born in Australia, where, ................ [4.530], [4.750], [4.930], [7.80] terminology, ........... [4.370], [4.530], [4.540] descent, by, if parent is Australian citizen, ..... [1.10], [1.60], [3.50], [4.120], [4.200], [4.370]-[4.460], [4.1060]-[4.1100], [4.1310], [4.1340], [7.60], [7.80] 26 January 1949 to 30 April 1970, .. [4.390] 1 May 1970 to 21 November 1984, ........................................................ [4.400] 22 November 1984 to 30 June 2007, ........................................................ [4.410] continuing relevance of Nationality Act 1920 (Cth), ..................................... [3.50] exemption from pledge of commitment where, ........................................... [4.120] from 1 July 2007, .................. [4.420]-[4.460] good character requirement, .......... [4.420], [4.440], [4.1060]-[4.1100] grounds for refusal of application, ........................................................ [4.450] jus sanguinis principle, .................... [4.380] overview of current provisions, ..... [4.420] “parent”, meaning of, ...................... [4.430] person does not become citizen despite ministerial approval, where, .... [4.460]

451

registration requirement before 2007, ........................................... [4.390]-[4.420] exemption from pledge of commitment, where, ............................. [4.120], [4.930] fee (if any) for, ........................................ [4.1420] form of, requirements for, .................... [4.1420] good character requirement, ... [4.420], [4.440], [4.510], [4.590], [4.630], [4.640], [4.680], [4.730], [4.740], [4.1060]-[4.1100] assessing “good character”, .......... [4.1080] conferral, where, .. [4.590], [4.630], [4.640], [4.680], [4.730], [4.740], [4.1060] decisions by AAT under Australian Citizenship Act 1948 (Cth) regarding, ...................................................... [4.1100] decisions by AAT under Australian Citizenship Act 2007 (Cth) regarding, ...................................................... [4.1090] descent, where, .... [4.420], [4.440], [4.1060] “good character”, meaning of, ..... [4.1070] overseas adoption, where, .............. [4.510], [4.1060] resumption, where, ......................... [4.1060] grounds for refusal of, ............. [4.450], [4.520], [4.1110]-[4.1150] date applicant ceased to be Australian citizen (if relevant), .. [4.1110], [4.1140] descent, where, .................................. [4.450] failure to meet residence requirements, ...................................................... [4.1150] identity, .............................. [4.1110], [4.1120] implication in offence against Australian law, .............................................. [4.1150] national security, .............. [4.1110], [4.1130] overseas adoption, where, ............... [4.520] historical background to, ........... [4.530]-[4.580] citizenship by conferral since 2007, .......................................... [4.530], [4.540] citizenship by grant from 1974 to 2007, .............. [4.530], [4.540], [4.570], [4.580] citizenship by naturalisation from 1949 to 1974, ................................. [4.530]-[4.550] citizenship by notification from 1970 to 1974, .................. [4.530], [4.540], [4.560] citizenship by registration from 1949 to 1974, ................................. [4.530]-[4.550] incomplete, procedure where, ............. [4.1420] invalid, where, ........................................ [4.1420] Readers Guide summarising means of acquisition of citizenship from 26 January 1949 to 30 June 2007, ........................................................ [4.200] resumption, by, .............. [1.60], [4.120], [4.200], [4.370], [4.730], [4.960]-[4.1100], [4.1170], [4.1280], [4.1300], [4.1310], [4.1330], [4.1340], [7.30] date of resumption of citizenship, . [4.970] eligibility, ............ [4.970]-[4.1040], [4.1170], [4.1280] exemption from pledge of commitment where, ........................................... [4.120] good character, ... [4.980], [4.1060]-[4.1100] historical provisions, ...................... [4.1050]

452

Australian Citizenship Law

Application for citizenship — cont provision under which citizenship originally ceased, relevance of, ........ [4.980]-[4.1040], [4.1170], [4.1280], [4.1300], [4.1310], [4.1330], [4.1340] reflection of citizenship as normative notion, ............................................ [7.30] terminology, .................. [4.370], [4.530], [4.540] Asylum-seekers — see also Refugees globalisation and, ...................... [7.120], [7.150] morality underpinning human rights law not implemented by Australia in treatment of, .................................. [5.20] Australasian Federal Convention debates (1890s) concern about consequences of double citizenship, ....................... [2.10], [2.20], [2.100]-[2.120], [2.140], [2.170], [2.180], [2.240] British subject identity, ....... [2.120], [2.180] implications for jury service, ......... [2.110], [2.170] implications for relationship between Commonwealth and States, .... [2.110], [2.120] implications for relationship between Senate and House of Representatives, ........................................................ [2.110] importance of distinction between federation and unified system, ........................................................ [2.110] meanings of “double citizenship”, .......................................... [2.100], [2.120] difficulties in defining “citizenship”, .... [2.10], [2.20], [2.60]-[2.90], [2.120], [2.140], [2.160], [2.240], [3.40], [6.20] birthright (“intrinsic status”) and naturalisation (rights giving rise to citizenship), ......... [2.70], [2.90], [2.140] citizens and members / residents, whether distinction between, .... [2.60], [2.80], [2.90], [2.160] “citizen of colony”, no existing definition of, .................................................... [2.60] definition to give rise merely to individual legal status or also prescribe substantive nature of citizenship, whether, . [2.60], [2.90], [2.120], [2.140] different understandings of meaning and value of citizenship at, ................ [2.10] inconsistent use of other terms, ....... [2.90] legal definition and rights flowing from status, whether distinction between, .............................................. [2.60], [2.80] legal status through rights, whether, .......................................................... [2.80] non-citizens, consequences for, ........ [2.90] “subject of the Queen” used as term for “citizenship” because of, ......... [2.120], [6.20] equality of rights between States, desire for, ........................................................ [2.130]

exclusion of citizens of foreign powers from Australian citizenship inferred from records of, ...................... [2.100], [2.190] failure to constitutionally define rights and responsibilities for minorities and, continuing consequences of, .... [2.130] Indigenous Australians, ............................ [2.30] nature of representation / representative democracy, ........... [2.10], [2.60], [2.110] participants in, ........................................... [2.30] place of citizenship in, ... [1.10], [1.30], [1.130], [2.10], [2.20], [2.30], [2.50], [2.100], [2.140], [2.150], [2.190], [2.230], [2.240], [3.40] continuing importance for future of Australian citizenship, . [2.20], [2.140], [2.150], [2.240] enhancement of national identity with particular sense of “self”, ........... [2.50] exclusionary device, as, ........ [2.20], [2.30], [2.50], [2.100], [2.190], [2.230], [3.40] legal and normative notions discussed, .......................................................... [2.20] main themes of discussions, ............. [2.20] power of Commonwealth over citizenship, ..... [2.10], [2.90], [2.110], [2.140], [4.20], [6.20] concern about deprivation of citizenship (other than of aliens) by Commonwealth, ......................... [2.110] concern about excessive, .................. [2.110] “naturalisation and aliens” constitutional head of power, .. [2.110], [2.140], [4.20] racial / colour discrimination, ....... [2.140] regulation of aliens as central concern, .......................................................... [4.20] rejection of proposed Commonwealth citizenship and membership constitutional head of power, ... [2.10], [2.90], [2.110], [6.20] rejection of constitutional definition of “citizenship”, ........ [2.10]-[2.30], [2.60], [6.20] relevance of intentions of participants to contemporary interpretation of Constitution, extent of, ................. [2.20] rights and responsibilities of citizens, .. [2.10], [2.20], [2.90], [2.130], [2.140], [2.200], [2.200], [2.220], [2.240], [6.250] common law as best means of protecting, whether, ....................................... [6.250] non-discriminatory treatment of resident of one State present in another State, whether, . [2.10], [2.90], [2.130], [2.200] “outside coloured races” in Austalia, ........................................................ [2.140] political rights / franchise as only rights, whether, ......................... [2.130], [2.220] voting rights / franchise, ............ [2.30], [2.80], [2.90], [2.130], [2.220] important reference point in defining “citizenship”, as, ............. [2.80], [2.90], [2.130] only rights, whether, .......... [2.130], [2.220]

Index Australasian Federal Convention debates (1890s) — cont women and, ............................. [2.80], [2.90] who should be included in / excluded from citizenship, .......... [2.20], [2.40], [2.110], [2.140], [2.230], [2.240], [4.20] British (other than Hong Kong Chinese) not to be excluded, .................... [2.140] “British type”, desire for perpetuation of, ............................................ [2.40], [2.140] discrimination based on colour, debate about, ............................................ [2.140] exclusion of aliens by colonies as common cause and motivating force behind Federation, ....................... [2.140], [4.20] “obnoxious citizenship” as likely reference to exclusion of Asians and Indigenous Australians, ................................. [2.110] restrictions on Asian (Chinese) immigrants from 1850s as background to discussion of, .................. [2.40], [2.140] White Australia Policy, ...... [2.140], [2.230] women, .................. [2.30], [2.80], [2.90], [2.130] non-involvement of, ............. [2.30], [2.130] place as citizens, ......... [2.30], [2.80], [2.90], [2.130] Australian Citizenship Act 1948 (Cth) — see also Citizenship — see also Nationality application of, ............................... [4.20], [4.200] “Australian citizen” defined, ................. [4.200] Australian citizenship, ... [1.50], [2.240], [3.10], [3.20], [4.70], [4.130]-[4.200], [4.370], [4.530], [4.550], [4.570], [5.60], [6.30], [6.80] adoption, by, ........................................ [4.70] bestowed on people not born in Australia, changes in terminology for, .... [4.370], [4.530] birth, by, ................................................ [4.70] co-existence with status of British subject until 1987, ............. [1.50], [3.10], [3.20], [4.130], [4.140], [4.190], [5.60], [6.30] evolution of, ............. [1.50], [4.130]-[4.200], [4.530], [4.550], [4.570], [5.60], [6.30], [6.80] — see also “evolution of Australian citizenship under” below legal status, as, ..... [4.130], [4.140], [4.200], [5.60], [6.80] pushed beyond mere legal inference, ........................................................ [2.240] cessation of citizenship under, ............... [4.70], [4.1010]-[4.1040], [4.1160], [4.1170], [4.1220], [4.1290]-[4.1340], [7.120] — see also Cessation of citizenship current relevance for resumption of citizenship, ................ [4.1010]-[4.1040], [4.1300], [4.1310], [4.1330], [4.1340] — see also Application for Citizenship dual citizenship (from 1948 to April 2002), for, .. [1.10], [4.1010], [4.1160], [4.1170], [4.1290]-[4.1330], [7.120] — see also Dual citizenship children, status under, .............................. [3.90]

453

Citizenship Act 1969 (Cth) renamed as, .. [1.50] constitutional basis / validity of, .......... [1.30], [4.30], [4.1320] — see also Australian Citizenship Act 2007 (Cth) cessation of citizenship for dual citizenship, ................................ [4.1320] dual citizenship not permitted under, .. [1.30], [1.110], [3.40], [4.120], [4.730] constitutional basis / validity of provision, ....................................... [1.30] importance of allegiance highlighted, ........................................................ [4.120] evolution of Australian citizenship under, .. [1.50], [2.150], [2.180], [3.100]-[3.120], [4.130]-[4.200], [4.530], [4.550], [4.570], [5.60], [6.30], [6.80] “administrative concept of citizenship” of non-Aboriginal people, ............. [3.110] aliens, ........ [4.140]-[4.160], [4.190], [4.550], [4.570], [6.30] Australian citizens, .. [4.140], [4.200] — see also Australian Citizenship Act 2007 (Cth) British subjects, ..................... [1.50], [3.120], [4.130]-[4.150], [4.170]-[4.190], [4.530], [4.550], [4.570], [5.60], [6.30] British subjects without citizenship, .......................................... [4.140], [4.180] co-existence of status of British subject and status of Australian citizen until 1987, ........ [4.130], [4.140], [5.60], [6.30] levels of formal membership of Australian community, ........ [1.50], [4.140]-[4.190], [4.530], [4.550], [4.570], [5.60], [6.30] non-aliens, ............................ [4.140], [4.160] protected persons, ............... [4.160], [4.570] removal in 1987 of status of British subject, .............. [1.50], [2.150], [2.180], [4.140], [4.150], [4.190], [5.60], [6.30] false statements or representations, ... [4.1380] framework for collection, storage and use of personal information, introduction of, .......................................................... [7.60] Nationality and Citizenship Act 1948 (Cth) renamed as, ........ [1.40], [2.150], [3.10], [4.130] — see also Citizenship — see also Nationality notable changes to last version of, ....... [4.200] Preamble to, ................................................ [4.90] repeal of, .......................................... [1.10], [1.60] replacement and restructure by Australian Citizenship Act 2007 (Cth) of, .... [1.10], [1.60], [2.150], [3.10], [4.200] — see also Australian Citizenship Act 2007 (Cth) retention or severance of ties to British Empire by, whether, ..... [3.120], [4.180] security measures, introduction of heightened, .......................................................... [7.60] Australian Citizenship Act 2007 (Cth) acquisition of citizenship — see Application for citizenship — see Automatic acquisition of citizenship

454

Australian Citizenship Law

Australian Citizenship Act 2007 (Cth) — cont amendments proposed by Australian Citizenship and Other Legislation Amendment Bill 2014 (Cth), ...... [4.200], [4.270], [4.310], [4.350], [4.420], [4.440]-[4.460], [4.510], [4.520], [4.690], [4.730], [4.760], [4.790], [4.800], [4.840], [4.890], [4.910], [4.940], [4.950], [4.970], [4.980], [4.1060], [4.1110], [4.1190], [4.1280], [4.1430], [4.1470], [7.60] lapse of, .... [4.200], [4.450], [4.690], [4.910], [4.1060], [7.60] potential effect of, ............................... [7.60] purpose and overview of, ................. [7.60] antecedent provisions in Nationality Act 1920 (Cth), ................................... [3.40], [3.50] application of, ........ [3.20], [3.40], [3.90], [4.20], [4.210]-[4.230] exclusion of State and Territory laws, .......................................................... [4.20] operational instructions for, . [3.20], [3.40], [3.90] policy instruments guiding, . [3.20], [3.90], [4.210]-[4.230] cessation of citizenship — see Cessation of citizenship charter of citizenship within, proposal for introduction of, ........................... [2.220] children, status of, under, ....................... [3.90], [7.80]-[7.100] — see also Children “citizenship”, ..... [1.60], [2.160], [2.240], [4.40], [4.1480], [7.100] — see also Citizenship ambiguity in definition of, ............. [2.160], [4.1480], [7.100] defined, ........ [1.60], [2.160], [2.240], [4.40], [4.1480], [7.100] pushed beyond mere legal inference, ........................................................ [2.240] citizenship test introduced by, ... [1.10], [1.60], [4.120], [4.200], [4.590], [4.610], [4.640], [4.680], [7.60] — see also Citizenship test constitutional basis / validity of, ...... [4.10]-[4.80], [4.1350], [6.110] — see also Australian Constitution amendments relating to cessation of citizenship by conduct inconsistent with allegiance to Australia, . [4.1350], [6.110] not directly considered by High Court, .......................................................... [4.10] other express powers possibly supporting, ................................... [4.10], [4.60]-[4.80] wide acceptance of, despite no express constitutional power, ................... [4.10] decision-making and delegation under, ...................................................... [4.1430] endurance of elements of Nationality Act 1920 (Cth) in, .............................. [3.40], [3.50] evidence of Australian citizenship, ..... [4.260], [4.1360], [4.1370], [4.1390] — see also Evidence of Australian citizenship framework for collection, storage and use of

personal information, introduction of, .......................................................... [1.10] functions of, ................................................ [7.30] future of, ........................................ [1.130], [7.60] globalisation and, .................. [1.130] — see also Globalisation introduction and commencement of, .... [1.10], [1.60], [7.10], [7.60] key changes made at time of, ........... [7.60] legal consequences (responsibilities and privileges) of citizenship not explained in, .................................................... [1.60] loss of citizenship — see Cessation of citizenship offences against, ...... [4.1120], [4.1360]-[4.1410] alteration of evidentiary notice of Australian citizenship, ............ [4.1390] bogus documents, ........................... [4.1410] criminal penalties, ............ [4.1370]-[4.1400] failure to destroy identifying information when required, ......................... [4.1400] failure to surrender evidentiary notice of Australian citizenship when requested, .. [4.1360], [4.1370], [4.1390] false statements or representations, ...................................... [4.1370], [4.1380] overview of, ..................................... [4.1370] unauthorised access, disclosure, modification or impairment, or destruction of identifying information, ...................... [4.1120], [4.1370], [4.1400] philosophical messages in, lack of clarity as to, .................................... [1.60], [4.1480] pledge of commitment, ............ [4.120], [4.610], [4.920]-[4.950], [4.1300], [4.1330] — see also Pledge of commitment Preamble to, ...... [1.60], [4.90]-[4.120], [4.1070], [4.1330] assistance in determination of meaning of “good character”, whether, .... [4.1070] assistance in determination of some non-legal consequences of citizenship, .......................................................... [4.90] assistance in interpretation of statute where unclear or ambiguous, whether, .......................................................... [4.90] inclusive terminology of, ................... [1.60] little legal consequence of, ... [1.60], [4.90], [4.100] not legal definition of “citizenship”, .......................................................... [4.90] statements in, .......................... [4.90]-[4.120] symbolic importance of, .................... [4.90] text of, ................................................... [4.90] purpose of, .................................................. [1.60] Readers Guide summarising means of acquisition and loss of citizenship from 26 January 1949 to 30 June 2007 produced to accompany, ........... [4.200] regulations under, power to make, .... [4.1440] restructure, repeal and replacement of Australian Citizenship Act 1948 (Cth) by, ............ [1.10], [2.150], [4.200], [7.60]

Index Australian Citizenship Act 2007 (Cth) — cont key changes made at time of introduction, .......................................................... [7.60] review of decisions made under, ....... [4.1090], [4.1450]-[4.1470] Commonwealth Ombudsman and, ...................................................... [4.1450] freedom of information and, ........ [4.1450] judicial review, ................ [4.1450], [4.1460] merits review by AAT, .. [4.1090], [4.1450], [4.1470] security measures, introduction of heightened, .......................................................... [1.10] Australian Citizenship Council Australian Citizenship for a New Century (2000), ..... [1.10], [1.60], [4.80], [4.120], [4.200], [4.260], [4.410], [4.420], [4.490], [4.590], [4.1050], [4.1260], [4.1300], [4.1310], [4.1330], [7.30], [7.40], [7.60], [7.120] absence of “citizenship” in Constitution, .............................................. [4.80], [7.30] acquisition of citizenship by birth, ........................................................ [4.260] avoidance of abuse of citizenship to obtain immigration advantage, . [1.60] citizenship by descent, ....... [4.410], [4.420] Commonwealth’s power to make laws with respect to “naturalisation and aliens”, ............................... [4.80], [7.30] core criteria for eligibility for citizenship by grant/ conferral, ................... [4.590] different concepts of Australian citizenship articulated in, ........... [1.10] dual citizenship and membership of Parliament, ............... [4.1300], [4.1310], [4.1330], [7.30], [7.40] government response to — see Department of Immigration and Citizenship impetus for enactment of Australian Citizenship Act 2007 (Cth), as, .... [7.60] overseas adoptions, .......................... [4.490] population mobility and globalisation, ........................................................ [7.120] recommendation about resumption of citizenship, ................................ [4.1050] recommendation for new legislation, ............................................ [1.10], [4.200] recommendation for Readers Guide to accompany new legislation, ..... [4.200] recommendation that Preamble to Australian Citizenship Act 1948 (Cth) remain unchanged, .................... [4.120] renunciation of citizenship by service by dual citizen in armed forces of enemy country or declared terrorist organisation, .............................. [4.1260] Australian Citizenship Instructions, ........ [1.130], [3.20], [3.40], [3.90], [4.200]-[4.230], [4.270], [4.400], [4.410], [4.700], [4.850], [4.1050], [4.1310], [7.120] best interests of child, ............................. [1.130]

455

citizenship by descent, .............. [4.400], [4.410] details of citizenship operational instructions contained in, ............................... [4.210] discretionary considerations for approval of application for conferral of citizenship by person aged under 18, ......... [4.700] dual citizenship, ..................................... [4.1310] legality of policy guidance within, challenges to, .................................................. [4.220] naturalisation under Naturalization Act 1903 (Cth), ............................................... [3.40] New Zealanders’ status as permanent residents, ...................................... [7.120] operational instructions provided by, ... [3.20], [3.40], [3.90] “ordinarily resident” in Australia, relevant considerations, ............................ [4.270] policy guidance now replaced by Citizenship Policy, ....... [3.20], [3.40], [3.90], [4.210] recognition of British nationality before 1949, .......................................................... [3.90] resumption of citizenship, .................... [4.1050] special residence requirement, .............. [4.850] Australian Citizenship Test Review Committee — see also Citizenship test citizenship course, development of, in response to recommendations of, ........................................................ [4.610] Moving Forward … Improving Pathways to Citizenship (August 2008), ........ [4.610], [4.650] objective of, ............................................... [4.610] Australian Constitution aliens head of power — see “naturalisation and aliens head of power” below bill of rights within, ..... [1.110], [1.30], [2.220], [5.20], [5.210], [6.20], [6.130], [6.250], [7.20], [7.50] absence of, . [2.220], [5.210], [6.20], [6.130], [6.250], [7.20], [7.50] clarification or complication of citizenship matters by potential, whether, ... [7.50] future insertion of, whether, . [7.20], [7.50] identification of citizenship rights by potential, ........................................ [7.50] international law as framework for assessing distinctions between rights of citizens and non-citizens in potential, ............................ [5.20], [7.50] protection of rights of non-citizens in potential, whether, ...... [1.110], [1.130], [6.250] charter of citizenship within, ..... [2.220], [5.20] international law, relevance for future, .......................................................... [5.20] proposal for introduction of, .......... [2.220] citizen of foreign power, ............. [1.30], [1.80], [2.180], [2.190], [4.1170], [4.1300], [4.1330], [5.180], [6.20], [6.30], [6.200], [7.20]-[7.40]

456

Australian Citizenship Law

Australian Constitution — cont Australian citizen with dual citizenship included as, .. [2.190], [4.1170], [5.180], [7.20]-[7.40] change in meaning of status of British subject, ............................. [2.180], [6.30] disqualification from membership of Federal Parliament if, ..... [1.30], [1.80], [2.190], [4.1170], [4.1300], [4.1330], [5.180], [6.30], [6.200], [7.20]-[7.40] sole reference to “citizen” in document, as, .................................................... [6.20] citizenship head of power, .......... [1.10], [1.30], [1.130], [2.10], [2.70], [2.90], [2.110], [4.10], [4.70], [4.80], [6.20], [7.20], [7.30], [7.150] absence of express, .. [1.10], [1.30], [1.130], [2.10], [4.10], [4.80], [6.20], [7.20], [7.30], [7.150] future insertion of express, whether, ................................ [7.20], [7.30], [7.150] recommendation by Constitutional Commission (1988) for express, .................................. [1.30], [4.70], [7.30] rejection of proposal at Australasian Federal Convention debates (1890s) for, .. [2.10], [2.90], [2.110], [6.20] — see also Australasian Federal Convention Debates (1890s) wide acceptance of citizenship power, despite absence of express, ........ [4.10] defence power, whether supports citizenship legislation, ..................................... [4.10] definition of “citizenship of Australia”, ........ [1.30], [2.10]-[2.30], [2.60], [2.140], [2.160], [2.220]-[2.240], [3.40], [3.110], [4.80], [6.20], [7.30], [7.150] absence of, ........ [1.30], [2.10]-[2.30], [2.60], [2.140], [2.160], [2.220]-[2.240], [3.40], [3.110], [6.20], [7.150] legal effect of potential future, ........ [4.80], [7.30] need for review of need for, ............ [1.30], [2.20], [2.220], [2.240], [7.150] proposal by Rights Committee of Constitutional Commission (1988) for, .......................................................... [1.30] reasons underlying absence of, ....... [1.30], [2.10], [2.230] rejection of, at Australasian Federal Convention debates (1890s), ....................... [2.10]-[2.30], [2.60], [6.20] social and economic consequences of absence of, ................................... [2.220] external affairs power, ................ [4.10], [5.100] supports citizenship legislation, whether, .......................................................... [4.10] formation and drafting of — see Australasian Federal Convention Debates (1890s) framework and structure for development of legal principles, as, ...................... [2.20] future of citizenship in, .... [4.80], [7.20]-[7.50], [7.150]

amendment of provision disqualifying dual citizens from membership of Parliament, whether, ........ [7.20], [7.40] insertion of bill of rights dealing with citizenship issues, whether, ....... [7.20], [7.50] insertion of specific head of power over citizenship, whether, ....... [7.20], [7.30], [7.150] House of Representatives Legal and Constitutional Affairs Committee, ........ [1.30], [2.220], [4.80], [7.40], [7.50] Inquiry into Constitutional Reform (23 June 2008), .......... [1.30], [4.80], [7.40], [7.50] Reforming our Constitution: A Roundtable Discussion (10 June 2008), ......... [2.220] House of Representatives Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (July 1997), ......... [4.1330], [7.30], [7.40] immigration / emigration power, ......... [4.10], [4.60], [4.70], [7.30] supports citizenship legislation, whether, .................................. [4.10], [4.60], [4.70] implied nationhood power, assumption of, ...................... [4.10], [4.70], [4.80], [7.30] supports citizenship legislation, whether, .................................. [4.10], [4.70], [4.80] implied rights under, ................ [6.130], [6.250] common law citizenship rights, whether, ........................................................ [6.250] extension to non-citizens, whether, .......................................... [6.130], [6.250] freedom of political communication, ........................................................ [6.130] inconsistency between Commonwealth and State legislation, ........................... [4.20] judicial review guaranteed by, .............. [5.190] “membership” concept in, ........ [1.30], [2.240], [6.20] “people of the Commonwealth”, ..... [1.30] “people of the State”, ......................... [1.30] “subject of the Queen” / “British subject”, ................................ [1.30], [2.240], [6.20] naturalisation and aliens head of power, . [1.30], [1.110], [2.110], [2.140], [2.230], [3.10], [3.20], [3.100], [3.110], [4.10]-[4.50], [4.70], [4.80], [4.120], [5.190], [6.20], [6.50]-[6.120], [6.200], [7.30] administrative detention of aliens, .. [6.60] “aliens”, meaning and limits of, ..... [4.40], [4.50], [4.70], [4.120], [6.70]-[6.120] — see also Aliens allegiance to foreign power as defining characteristic of alienage, .......... [3.20], [4.40], [4.70], [4.120], [6.200] Australasian Federal Convention debates (1890s) and, ....... [2.110], [2.140], [4.20] covers legislation dealing with citizenship of natural-born Australians, whether, .............................................. [4.10], [7.30]

Index Australian Constitution — cont covers revocation of grant of naturalisation, whether, .............. [4.10] exclusionary device, as, .... [1.110], [3.100], [6.50], [7.30] High Court’s inconsistent interpretations of, ....................... [3.100], [3.110], [4.70], [6.50]-[6.120], [7.30] indefinite detention of stateless non-citizen, .................................... [6.60] limits citizenship power to “acquisition of citizenship” only, whether, ........ [4.10], [4.70] naturalisation clearly within, ............ [4.30] plenary nature of, ............................... [4.20] reliance on for legislation for naturalisation of British subjects, .......................................................... [4.70] reliance on (since 1948) for statutory construction of Australian citizenship, .......................................................... [4.70] scope of, ....... [1.110], [3.100], [4.10], [4.20], [4.70], [6.50], [6.60], [6.80]-[6.120], [7.30] validity of legislation discriminating on basis of citizenship and residence under, ............................................. [4.70] need for review of, .................................. [2.240] proposal for replacement of “subject of the Queen” by “an Australian citizen” in, .............................................. [4.80], [7.30] absolute power over definition of “Australian citizen” if enacted, whether, ............................. [4.80], [7.30] never enacted, .......................... [4.80], [7.30] protection of Australian citizens from deportation absent from, .......... [3.110] protection of status of citizenship absent from, ............................ [2.160], [2.220], [6.130] relevance of intentions of framers to contemporary interpretation of, extent of, .................................................... [2.20] rights articulated by, ....... [210], [2.90], [2.130], [2.220], [5.210], [6.20], [6.40], [6.130], [6.170]-[6.190], [6.210] acquisition of property by Commonwealth on just terms, .............................. [6.130] freedom from discrimination on basis of State residence, ... [210], [2.90], [2.130], [2.220], [6.20], [6.40], [6.130] freedom of religion, .......................... [6.130] freedom of trade, .............................. [6.130] trial by jury, .......................... [6.130], [6.210] voting, ...................... [6.130], [6.170]-[6.190] validity of Australian Citizenship Act 2007 (Cth) under, ....... [4.10]-[4.80], [4.1350], [6.110] amendments relating to cessation of citizenship of dual citizen by conduct inconsistent with allegiance to Australia, ..................... [4.1350], [6.110] not directly considered by High Court, .......................................................... [4.10]

457

other express powers possibly supporting, ................................... [4.10], [4.60]-[4.80] wide acceptance of, despite no express constitutional power, ................... [4.10] Australian Parliament committees House of Representatives Legal and Constitutional Affairs Committee, ........ [1.30], [2.220], [4.80], [7.40], [7.50] Inquiry into Constitutional Reform (23 June 2008), .......... [1.30], [4.80], [7.40], [7.50] Reforming our Constitution: A Roundtable Discussion (10 June 2008), ......... [2.220] House of Representatives Standing Committee on Family and Human Services, Overseas Adoption in Australia (November 2005), ....................... [4.490] House of Representatives Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (July 1997), ......... [4.1330], [7.30], [7.40] review of dual citizenship and membership of Parliament, ... [4.1330], [7.30], [7.40] Joint Committee on Foreign Affairs and Defence, Dual Nationality (1976), ...................................................... [4.1330] Joint Committee on Human Rights, Human Rights Scrutiny Report (18 March 2015), ...................................................... [4.1350] Joint Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (4 September 2015), ...................................................... [4.1350] Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994), ............ [1.60], [4.10], [4.110], [4.120], [4.260], [4.410], [4.580], [4.1220], [4.1300], [4.1330] recommendation as to process for registration by descent, ............. [4.410] recommendation as to scrutiny of statements made in applying for citizenship, ................................ [4.1220] recommendation that Preamble to Australian Citizenship Act 1948 (Cth) be revised and expanded, .............. [4.120] review of acquisition of citizenship by birth, ............................................. [4.260] review of dual citizenship, ........... [4.1300], [4.1330] Senate Legal and Constitutional Legislation Committee, Report on Inquiry into the Australian Citizenship Bill 2005 (2006), ...................................................... [4.1130] Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (April 1996), ..... [1.20], [2.220], [4.110], [5.20]

458

Australian Citizenship Law

Automatic acquisition of citizenship abandonment of child in Australia, by, .. [1.60], [4.200], [4.240], [4.320]-[4.350], [7.80] child found abandoned before 4 June 1969 excluded, ...................................... [4.320] child found abandoned on or after 4 June 1969 and before 20 August 1986, ........................................................ [4.330] child found abandoned on or after 20 August 1986 and before 1 July 2007, .............................................. [4.340] child found abandoned on or after 1 July 2007, .............................................. [4.350] adoption of permanent resident under Australian law by Australian citizen, by, ........... [1.60], [4.70], [4.200], [4.240], [4.280]-[4.310], [4.470], [7.80] person adopted before 22 November 1984 excluded, ...................................... [4.290] person adopted on and from 22 November 1984 to 30 June 2007, ........................................................ [4.300] person adopted on and from 1 July 2007, ........................................................ [4.310] application of historical provisions to person’s eligibility, time at which, ......... [4.200], [4.370] birth in Australia, by, ....... [3.50], [4.50], [4.70], [4.200], [4.250], [7.80] jus soli principle, ............................... [4.250] birth in Australia where one parent is Australian citizen or permanent resident, by, ...... [1.60], [4.240], [4.260], [4.270], [4.380], [7.80], [7.120] exclusions from definition of “permanent resident” for purpose of, ......... [4.260], [7.120] jus sanguinis concept, ........ [4.260], [4.380] jus soli principle less influential, ... [4.260] birth in Australia, by, where ordinarily resident in Australia for next ten years, ..... [1.60], [4.50], [4.240], [4.260], [4.270], [6.100], [7.80] exemption from pledge of commitment where, ........................................... [4.120] incorporation of territory into Australia, by, .............................. [1.60], [4.240], [4.360] Readers Guide summarising means of acquisition of citizenship from 26 January 1949 to 30 June 2007, ........................................................ [4.200] terminology, .............................................. [4.240]

B British Commonwealth Conference of Nationality and Citizenship (1947) principles for system of common status of British subject and citizenship of independent member countries of Commonwealth agreed at, ...... [4.140], [4.180], [4.550]

Report (26 February 1947), ....... [4.140], [4.180] British subjects aliens distinguished, ......... [1.30], [1.40], [3.10], [3.20] aliens, whether, ...... [4.40], [6.40], [6.70], [6.80] British Commonwealth Conference of Nationality and Citizenship (1947), principles for system of common status of British subject and citizenship of independent member countries of Commonwealth agreed at, ............................ [4.140], [4.180], [4.550] defined by Naturalization Act 1903 (Cth), ........................................... [2.150], [3.40], entitlement to vote, whether, .... [1.80], [3.120], [5.140], [5.210], [5.220], [6.170], [6.190] meaning/ evolution of meaning of, in High Court cases, ................................... [3.20] naturalisation of, legislation for, . [1.40], [4.70] permanently residing in Australia, where, .................... [1.40], [1.80], [3.10], [3.110] British subjects as visitors distinguished, ............................................ [3.10], [3.110] sole status of Australians from Federation to 1949 as “subjects of the Queen” or, ...................... [1.30], [1.40], [3.10], [3.90] status of, .. [1.30]-[1.50], [1.80], [2.120], [2.150], [2.180], [2.240], [3.10], [3.20], [3.40], [3.90]-[3.120], [4.40], [4.130]-[4.150], [4.170]-[4.190], [4.190], [4.530], [4.550], [4.570], [5.60], [5.190], [6.20], [6.30] aliens distinguished, .. [1.30], [1.40], [3.10], [3.20] Australian citizens in practical normative sense from Federation to 1949, whether, ....................................... [3.110] cessation of relevance of, for purposes of membership of Australian community, disagreement in High Court as to date of, .................................................... [3.20] co-existing with status of Australian citizen from 1949 to 1987, .......... [1.50], [3.10], [3.20], [4.130], [4.140], [4.190], [5.60], [6.30] concern about “double citizenship” at Australasian Federal Convention debates (1890s), ............ [2.120], [2.180] determination of allegiance and, by place of birth (jus soli), .......................... [3.20] entitlement to, .................................... [4.170] Federation, at, ........................ [1.40], [2.150] links to Britain and, complicating concept of membership of Australian community in first 48 years of Federation, ................................... [3.120] proviso as to discrimination by State laws between “natural-born British subjects” and naturalised British subjects in Naturalization Act 1903 (Cth), ............................................... [3.40] removal in 1987 of, .............. [1.50], [2.150], [2.180], [4.140], [4.150], [4.190], [5.60], [6.30]

Index British subjects — cont supra-national, ................................... [4.130] transformation from, to independent Australian citizen, ...................... [3.120] unclear, under Migration Act 1958 (Cth), ................................ [4.40], [5.190], [6.30] withdrawn from Australian citizens for purposes of British law by British Nationality Act 1981 (UK), ........ [4.190] temporarily in Australia, ............. [1.40], [3.10], [3.110] British subjects as permanent residents distinguished, .................. [3.10], [3.110] without Australian citizenship, ............ [4.140], [4.180]

C Cessation of citizenship child, of, ...... [4.1000], [4.1160], [4.1280], [7.80], [7.100] eligibility to apply for resumption of citizenship after, ....................... [4.1280] historical provisions of Australian Citizenship Act 1948 (Cth), ................. [1.10], [1.60], [4.1010]-[4.1040], [4.1160], [4.1170], [4.1220], [4.1290]-[4.1340], [7.120] cessation by residence outside Australia, ...................... [4.1030], [4.1160], [4.1340] cessation for dual citizenship, ......... [1.10], [4.1010], [4.1160], [4.1170], [4.1290]-[4.1330], [7.120] — see also Dual citizenship cessation for service in enemy armed forces, ......................................... [4.1160] cessation of child’s citizenship, ... [4.1040], [4.1160] current relevance for resumption of citizenship, ................ [4.1010]-[4.1040], [4.1300], [4.1310], [4.1330], [4.1340] — see also Application for Citizenship deprivation of citizenship, ............ [4.1160], [4.1220] renunciation, ..... [4.1020], [4.1160], [4.1170] Readers Guide summarising means of loss of citizenship from 26 January 1949 to 30 June 2007, ............................... [4.200] reflection of citizenship as normative notion, .......................................... [4.1160], [7.30] renunciation, by, ........ [4.980], [4.990], [4.1160], [4.1170], [7.80], [7.100] application for, ................................. [4.1170] consequence of another country not allowing dual citizenship, ...... [4.1170] Ministerial discretion/ duty to refuse application for, where, ............. [4.1170] renunciation by conduct of dual citizen inconsistent with allegiance to Australia, by, .... [1.60], [1.100], [1.130], [2.160], [2.190], [3.110], [4.70], [4.110], [4.120], [4.200], [4.980], [4.1160], [4.1180], [4.1250]-[4.1270], [4.1330], [4.1350], [5.190], [6.20], [6.90], [6.110],

459

[7.30], [7.40], [7.60], [7.80], [7.100], [7.150] — see also Terrorism conviction for terrorism and certain other offences, ........ [4.980], [4.1160], [4.1270] intentional conduct relating to terrorism, ...................................... [4.1160], [4.1180] service outside Australia in armed forces of enemy country or declared terrorist organisation, ..... [1.60], [1.100], [1.130], [2.160], [2.190], [3.110], [4.70], [4.110], [4.120], [4.200], [4.980], [4.1160], [4.1250], [4.1260], [4.1330], [4.1350], [5.190], [6.20], [6.90], [6.110], [7.30], [7.40], [7.60], [7.80], [7.100], [7.150] resumption of citizenship after, ...................... [4.960]-[4.1040] — see also Application for citizenship revocation by Minister, ........................ [4.1160], [4.1190]-[4.1240], [4.1370], [4.1380], [7.80], [7.100] application of, .................. [4.1190], [4.1220] “contrary to public interest” as additional requirement, .............. [4.1190], [4.1200] deprivation of citizenship under Australian Citizenship Act 1948 (Cth) compared, .................................. [4.1220] failure to comply with special residence requirements, for, ..... [4.1160], [4.1240] fraud, for, ......... [4.1160], [4.1190], [4.1220], [4.1230] full list of grounds for, ................... [4.1230] Ministerial discretion to consider other relevant matters, ....................... [4.1210] non-delegable Ministerial power, ...................................... [4.1190], [4.1240] offences, for, ..... [4.1160], [4.1190], [4.1220], [4.1230], [4.1370], [4.1380] Children acquisition of citizenship by — see Adoption — see Application for citizenship — see Automatic acquisition of citizenship alienage and, ................................... [4.40], [4.50] Australian Citizenship Instructions of Department of Immigration and Border Protection, best interests of, ........................................................ [1.130] best interests of, .......... [1.130], [4.230], [4.520], [4.700], [4.720], [6.150] cessation of citizenship of — see Cessation of citizenship citizens, as, ........... [1.20], [3.90], [4.50], [4.230], [6.150], [6.190], [7.70]-[7.100], [7.150] common law, at, .................... [6.150], [7.90] conceptualisation as passive actors / property of parents, ..................... [3.90] Convention on the Rights of the Child (Int), ................................ [4.50], [4.230], [7.70] evolving global notions of, .............. [7.70], [7.100], [7.150] excluded from voting, ......... [1.20], [6.190], [7.90]

460

Australian Citizenship Law

Children — cont future for, in Australia, .................... [7.100] lack of clarity as to meaning of, .... [7.100] lack of rights associated with citizenship despite legal status, ..................... [1.20] legal status under Australian Citizenship Act 2007 (Cth), ..... [3.90], [7.80]-[7.100] legal status under Australian Citizenship Act 1948 (Cth), .............................. [3.90] linkage to parents’ status, ... [3.90], [7.100] other legislation, under, ..................... [7.90] political and social participation, .... [1.20], [7.90], [7.100] Citizenship Policy of Department of Immigration and Border Protection, ............. [4.230], [4.350], [4.430], [4.520], [4.700], [4.720] abandoned child in Australia after 1 July 2007, .............................................. [4.350] “best interests of child”, ... [4.230], [4.520], [4.700], [4.720] cancellation of citizenship approval, ........................................................ [4.720] determination of parent-child relationship, ........................................................ [4.430] factors most relevant to citizenship decisions, ....................... [4.230], [4.700] Committee on the Rights of the Child, .......................................... [4.230], [7.100] Convention on the Rights of the Child (Int), ................................ [4.50], [4.230], [7.70] application of rights within, ............. [7.70] explicit recognition of children’s civil rights by, ........................................ [7.70] informs concept of “best interests of the child”, ........................................... [4.230] protection of child’s legal identity (including right to nationality) by, .......................................................... [4.50] exclusion from grant of certificate of naturalisation under Nationality Act 1920 (Cth) of, ................................ [3.90] exemption from making pledge of commitment, where, .................. [4.120] naturalisation under Naturalization Act 1903 (Cth) of, .............................. [3.40], [3.90] removal of automatic acquisition of citizenship by birth in Australia, .......................................................... [4.50] Citizens — see also Citizenship absolute right of re-entry to Australia of, whether, ........................... [5.190], [7.90] absolute right to remain in Australia of, whether, ....................................... [5.190] allegiance to Australia signified by legal status of, ... [2.190], [4.40], [5.30] — see also Allegiance “Australian citizen” defined by Australian Citizenship Act 1948 (Cth), ........ [4.200] children as — see Children common law rights of legal, ...... [6.150] — see also Common law

explicitly distinguished from non-citizens under Migration Act 1958 (Cth), ....... [1.70], [1.90], [2.210], [5.30], [5.60], [5.190], [5.310], [6.60], [7.30], [7.90], [7.120] foreign power, of, ........... [1.30], [1.80], [2.180], [2.190], [4.1170], [5.180], [6.20], [6.30], [6.200], [7.20]-[7.40] Australian citizen with dual citizenship included as, .. [2.190], [4.1170], [5.180], [7.20]-[7.40] change in meaning of status of British subject, ............................. [2.180], [6.30] disqualification for membership of Australian Parliament if, ........... [1.30], [1.80], [2.190], [4.1170], [5.180], [6.30], [6.200], [7.20]-[7.40] sole reference to “citizen” in Australian Constitution, ................................... [6.20] inconsistent meaning attributed by High Court to, .............. [1.20], [1.110], [6.10], [6.140]-[6.260] interchangeable use of “person”/ “citizen”, ........... [1.110], [6.10], [6.250], [6.260] legal citizen, .......................... [6.150]-[6.240] person deserving of rights, regardless of legal status, ...... [6.10], [6.140], [6.250], [6.260] legislative rights and duties of legal — see Consequences of citizenship / non-citizenship permanent residents distinguished, ...... [1.20], [2.160] requirement that members of Federal Parliament be, ............................... [1.80] rights and responsibilities of, as discussed at Australasian Federal Convention debates (1890s), .... [2.10], [2.20], [2.90], [2.130], [2.140], [2.200], [2.200], [2.220], [2.240], [6.250] common law as best means of protecting, whether, ....................................... [6.250] non-discriminatory treatment of resident of one State present in another State, whether, . [2.10], [2.90], [2.130], [2.200] “outside coloured races” in Austalia, ........................................................ [2.140] political rights / franchise as only rights, whether, ......................... [2.130], [2.220] “subject” distinguished, ............................ [1.20] Citizenship — see also Citizens acquisition of — see Application for citizenship — see Automatic acquisition of citizenship adoption, by — see Adoption — see Application for citizenship — see Automatic acquisition of citizenship allegiance to Australia signified by legal status of, ... [2.190], [4.40], [5.30] — see also Allegiance

Index Citizenship — cont Australian Citizenship Act 1948 (Cth) — see Australian Citizenship Act 1948 (Cth) Australian Citizenship Act 2007 (Cth) — see Australian Citizenship Act 2007 (Cth) Australian Citizenship Council, Australian Citizenship for a New Century (2000), ..... [1.10], [1.60], [4.80], [4.120], [4.200], [4.260], [4.410], [4.420], [4.490], [4.590], [4.1050], [4.1260], [4.1300], [4.1310], [4.1330], [7.30], [7.40], [7.60], [7.120] — see also Australian Citizenship Council birth, by — see Application for citizenship — see Automatic acquisition of citizenship Canadian approach to, ................ [1.40], [3.120] cessation of — see Cessation of citizenship Citizenship Act 1969 (Cth), ........................ [1.50] conferral of — see Application for citizenship consequences of — see Consequences of citizenship / non-citizenship constitutional concept, as, whether, ...... [1.30], [4.50], [4.70], [6.20]-[6.140] — see also Australian Constitution administrative detention, .................. [6.60] “alien”, lack of clarity as to who is, ..................... [1.30], [4.50], [4.70], [6.40], [6.60]-[6.120] — see also Aliens “citizen of a foreign power”, ........... [6.20], [6.30] “civil status” of person, importance of, .......................................................... [6.20] control over naturalisation and aliens, ............................................. [6.50]-[6.120] freedom from discrimination on basis of State residence, ............................. [6.40] implied constitutional rights, ......... [6.130] omission of “citizenship” from Australian Constitution as constraint on High Court’s approach, ......................... [6.20] other constitutional protections / restraints upon government exercise of power, ...................................... [6.140] de facto administrative Australian, ....... [1.40], [3.10] defined by Australian Citizenship Act 2007 (Cth), ...... [1.60], [2.160], [2.240], [4.40], [4.1480], [7.100] Department of Immigration and Citizenship, Australian Citizenship: A Common Bond, Government response to the Report of the Australian Citizenship Council (May 2001), ... [4.590], [4.980], [4.1050], [4.1260], [4.1330], [7.40] descent, by — see Application for citizenship different levels of membership of Australian community in first 48 years of Federation, ... [3.100]-[3.120] — see also Australian Citizenship Act 1948 (Cth) “administrative concept of citizenship” of non-Aboriginal people, ............. [3.110] complicated by British subject status and links to Britain, ........................... [3.120]

461

displayed in and reinforced by incoherent approach of High Court to naturalisation and aliens head of power in Constitution, .. [3.100], [3.110] discriminatory criteria in bestowing legal status of, whether unconstitutional, ........................................................ [2.160] evidence of — see Evidence of Australian citizenship evolution of Australian, under Australian Citizenship Act 1948 (Cth), ......... [1.50], [2.150], [2.180], [3.100]-[3.120], [4.130]-[4.200], [4.530], [4.550], [4.570], [5.60], [6.30], [6.80] — see also Australian Citizenship Act 1948 (Cth) future in Australia of, .. [1.130], [2.20], [2.140], [2.150], [2.240] globalisation and — see Globalisation honorary citizenship, .............................. [1.120] independent, moves within British Empire / Commonwealth towards, .......... [1.40], [1.50] investment, by, ........................................... [1.10] Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994), ............ [1.60], [4.10], [4.110], [4.120], [4.260], [4.410], [4.580], [4.1220], [4.1300], [4.1330] recommendation as to process for registration by descent, ............. [4.410] recommendation as to scrutiny of statements made in applying for citizenship, ................................ [4.1220] recommendation that Preamble to Australian Citizenship Act 1948 (Cth) be revised and expanded, .............. [4.120] review of acquisition of citizenship by birth, ............................................. [4.260] review of dual citizenship, ........... [4.1300], [4.1330] legal citizenship and membership of Australian community, difficulty in distinguishing difference, ........ [2.160], [3.110] legal status, as, .................. [1.10], [1.20], [1.60], [1.90]-[1.110], [2.20], [2.30], [2.50], [2.90], [2.100], [2.190], [2.220]-[2.240], [3.10], [3.40], [3.120], [4.1480], [5.10], [6.50], [6.60], [6.260], [7.120] critique as formal and narrow (“exclusive”) approach, .. [1.10], [1.20], [5.10] impact of, ................................ [1.10], [2.220] normative notion of citizenship distinguished, ... [2.220], [3.10], [6.260] uses as exclusionary device, ............ [1.60], [1.90]-[1.110], [2.20], [2.30], [2.50], [2.100], [2.190], [2.230], [3.40], [3.120], [4.1480], [6.50], [6.60], [6.260], [7.120] loss of — see Cessation of citizenship meanings and nature of, .............. [1.10]-[1.40], [1.60]-[1.130], [2.10], [2.20], [2.60]-[2.100], [2.120]-[2.160], [2.180], [2.190], [2.220]-[2.240], [3.10], [3.40],

462

Australian Citizenship Law

Citizenship — cont

[3.60], [3.110], [3.120], [4.40], [4.90]-[4.120], [4.590], [4.1160], [4.1480], [5.30], [5.70], [6.10]-[6.260], [7.30], [7.90], [7.100] “active citizenship” within democratic society, ......................... [3.10] — see also “participation and membership within democratic community, as” below “allegiance” central to, ...... [2.190], [3.110], [4.40], [5.30] “civic virtues” concept, .......... [1.10], [1.20] defined by Australian Citizenship Act 2007 (Cth), ...... [1.60], [2.160], [2.240], [4.40], [4.1480], [7.100] defined by Nationality and Citizenship Act 1948 (Cth) for first time, ............. [3.10] difficulties in defining at Australasian Federal Convention debates (1890s), ........ [2.10], [2.20], [2.60]-[2.90], [2.120], [2.140], [2.160], [2.240], [3.40], [6.20] gendered concept, as, .......... [1.20], [1.100], [2.140], [3.60] High Court use of terms “citizen” and “citizenship”, .................. [1.20], [1.110], [6.10]-[6.260] — see also Common law lack of clarity about, .. [1.10], [1.60], [2.60], [2.90], [2.150], [3.10], [3.120] legal status, as, ........... [1.10], [1.20], [2.90], [2.220], [2.240], [3.10], [6.260] — see also “legal status, as” above multiculturalism, impact on Australian identity of, ................................... [2.180] normative (“inclusive”) concept, ......... [1.10]-[1.40], [1.60]-[1.130], [2.80], [2.90], [2.220], [2.240], [3.100]-[3.120], [3.120], [4.40], [4.590], [4.1160], [5.30], [5.70], [5.140], [5.210], [5.220], [6.20], [6.130], [6.170]-[6.200], [6.250], [6.260], [7.30], [7.90], [7.100], [7.120], [7.130] — see also “normative / jurisprudential (‘inclusive’) concept of” below popular usage, in, ............................... [3.10] statements about, in Preamble to Australian Citizenship Act 2007 (Cth), ............................................. [4.90]-[4.120] tension between exclusionary and inclusionary notions, ... [3.120], [6.260] uses as exclusionary device, ............ [1.60], [1.90]-[1.110], [2.20], [2.30], [2.50], [2.100], [2.190], [2.230], [3.40], [3.120], [4.1480], [6.260] voting rights as important reference point in definition, ........ [2.80], [2.90], [2.130] “nationality”, whether alternative for or distinct from, ... [1.20], [3.10], [7.10] — see also Nationality Nationality and Citizenship Act 1948 (Cth), ....... [1.40], [1.50], [2.150], [3.10], [3.20], [3.50], [3.90], [3.120], [4.130], [4.140], [4.180] attacks on bill for, ............... [3.120], [4.180] basis of, ................................................. [3.50]

Australian citizenship as legal status under, ............................. [4.130], [4.140] children, status under, ....................... [3.90] citizenship by descent provisions, ... [3.50] “citizenship” first legally defined in, ................................ [1.40], [2.150], [3.10] commencement of, ............................ [4.130] consequences and nature of citizenship not dealt directly with by, ........ [2.150] introduction of, ........................ [1.50], [3.50] jus soli principle, ................................. [3.90] proposal for legal definition of “Australian Nationality” in bill for, ........................................................ [3.120] renaming as Australian Citizenship Act 1948 (Cth) in 1973, ........ [1.40], [2.150], [3.10], [4.130] — see also Australian Citizenship Act 1948 (Cth) retention or severance of ties to British Empire by enactment of, whether, .......................................... [3.120], [4.180] significant step towards Australian independence, as, ......................... [3.20] status of British subject under, ........ [1.50], [4.130], [4.140] nature and meanings of — see “meanings and nature of” above non-citizenship status distinguished, ..... [1.20] — see Aliens — see Non-citizens normative / jurisprudential (“inclusive”) concept of, ......................... [1.10]-[1.40], [1.60]-[1.130], [2.80], [2.90], [2.130], [2.220], [2.240], [3.10]-[3.120], [3.120], [4.40], [4.590], [4.1160], [5.30], [5.70], [5.140], [5.210], [5.220], [6.20], [6.130], [6.170]-[6.200], [6.250], [6.260], [7.30], [7.90], [7.100], [7.120], [7.130] cessation of citizenship as reflection of, .......................................... [4.1160], [7.30] “civic virtues”, ......................... [1.10], [1.20] first 48 years after Federation, .......... [1.40] form of identity and solidarity, ........ [1.20] general eligibility and other criteria for application for citizenship reflect, ........................................................ [4.590] participation and socio-political membership within democratic community, ........................ [1.10]-[1.40], [1.60]-[1.130], [2.80], [2.90], [2.130], [2.190], [2.220], [2.240], [3.10]-[3.120], [4.40], [5.30], [5.70], [5.140], [5.210], [5.220], [6.20], [6.130], [6.170]-[6.200], [6.250], [6.260], [7.30], [7.90], [7.100], [7.120], [7.130] — see also “participation and membership within democratic community, as” below person deserving of rights, regardless of legal status, ................... [6.250], [6.260] resumption of citizenship as reflection of, .......................................................... [7.30] social membership and substantive equality involved in, ................... [1.20] synthesis of strands involved in, ..... [1.20]

Index Citizenship — cont system of rights, .................................. [1.20] tension between exclusionary notions of and, ................................. [3.120], [6.260] participation and membership within democratic community, as, ......... [1.10]-[1.40], [1.60]-[1.130], [2.80], [2.90], [2.130], [2.190], [2.220], [2.240], [3.10]-[3.120], [4.40], [5.30], [5.70], [5.140], [5.210], [5.220], [6.20], [6.50], [6.130], [6.170]-[6.200], [6.250], [6.260], [7.30], [7.90], [7.100], [7.120], [7.130] allegiance, ..... [2.190], [3.110], [4.40], [5.30] broader view, as, ..................... [1.10], [3.10] children, ...................... [1.20], [7.90], [7.100] concept of “membership” in Australian Constitution, ......... [1.30], [2.240], [6.20] eligibility for conferral of citizenship under Australian Citizenship Act 2007 (Cth) reflects, ................................. [1.60] executive expressions of, ................. [1.120] federal legislative expressions of, ... [1.20], [1.70]-[1.100], [1.130] — see also Consequences of citizenship / non-citizenship judicial expressions of, ........ [1.110], [3.10], [6.250], [6.260] — see also Common law political membership, ........................ [1.20], [1.80]-[1.100], [1.130], [2.80], [2.90], [2.130], [2.220], [3.120], [5.30], [5.140], [5.210], [5.220], [6.50], [6.130], [6.170]-[6.200], [7.120], [7.130] renunciation of Australian citizenship where service by dual citizen outside Australia in armed forces of enemy country or declared terrorist organisation as reflection of, ...... [7.30] social membership, .............. [1.20], [1.100], [2.220], [5.70], [6.200] place in Australasian Federal Convention debates (1890s) of, ........... [1.10], [1.30], [1.130], [2.10], [2.20], [2.30], [2.50], [2.100], [2.140], [2.150], [2.190], [2.230], [2.240], [3.40] — see also Australasian Federal Convention debates (1890s) political concept, as, .................................. [1.20] prevention of abuse of, to obtain immigration advantage, ......................... [1.60], [3.90] privilege, as, .............................................. [1.130] protection of status of, absence from Australian Constitution of, ....... [2.160], [2.220], [6.130] republic debate and broad questions about, ............................................ [2.180], [6.30] resumption, by — see Application for citizenship Senate Legal and Constitutional References Committee, National Well-Being: A System of National Citizenship Indicators and Benchmarks (April 1996), ..... [1.20], [2.220], [4.110], [5.20] statements about, in Preamble to Australian

463

Citizenship Act 2007 (Cth), ............................................. [4.90]-[4.120] statutory concept entirely, whether, ....... [6.20] substantive effect of, differs from State to State, ............................................. [2.170] universal, discriminatory domestic legislation as challenge to, ........................... [5.310] value of, ......................................... [5.40], [7.130] reduced by globalisation, whether, ........................................................ [7.130] supercharged by legislation disciminating on basis of status, ........................ [5.40] why discriminate on basis of, ................. [5.30] Citizenship by adoption — see Adoption — see Application for citizenship — see Automatic acquisition of citizenship Citizenship by conferral — see Application for citizenship Citizenship by descent — see Application for citizenship Citizenship by resumption — see Application for citizenship Citizenship Policy (2016), ..... [3.20], [3.40], [3.90], [4.210]-[4.230], [4.270], [4.350], [4.430], [4.500], [4.520], [4.620], [4.660], [4.670], [4.680], [4.700], [4.720], [4.730], [4.760]-[4.800], [4.900], [4.920], [4.950], [4.990], [4.1070], [4.1080], [4.1120], [4.1170], [4.1210], [4.1310], [4.1360], [4.1420], [4.1430] adoptions overseas, ................... [4.500], [4.520] “Australia”, definition of, for purposes of application for conferral of citizenship by person born outside Australia to former Australian citizen, ......... [4.730] cancellation of citizenship approval of child under 16, ...................................... [4.720] child found abandoned in Australia on or after 1 July 2007, ........................ [4.350] children, consideration of “best interests” of, .............. [4.230], [4.520], [4.700], [4.720] collection, use, storage and destruction of personal identifiers, ................. [4.1120] commencement date of citizenship after approval of conferral, ................ [4.920] decisions under, reviewable before AAT or by way of judicial review, .............. [4.760] defence service requirement for application for conferral of citizenship, ...... [4.900] determination of parent-child relationship, ........................................................ [4.430] discretionary considerations for approval of application for conferral of citizenship by person aged under 18, ......... [4.700] dual citizenship, ..................................... [4.1310] “good character”, meaning and assessment of, ...................................... [4.1070], [4.1080]

464

Australian Citizenship Law

Citizenship Policy (2016), — cont “enduring incapacity”, meaning of, ..... [4.660] establishing evidence of Australian citizenship, ................................ [4.1360] evidence of hearing, speech or sight impediment by applicant for conferral of citizenship, .............................. [4.680] factors contributing to close and continuing association with Australia, ....... [4.620] general residence requirement for applications for conferral of citizenship, ........................................... [4.760]-[4.800] guidance as to interpretation and exercise of powers under Australian Citizenship Act 2007 (Cth) and Australian Citizenship Regulations 2007 (Cth), ............ [4.210], [4.220], [4.760], [4.1430] notice of intention to cancel approval of citizenship by conferral, ........... [4.950] not to be read as law, .............................. [4.220] not to constrain exercise of delegated powers under Australian Citizenship Act 2007 (Cth) or Australian Citizenship Regulations 2007 (Cth), .............. [4.220], [4.1430] “ordinarily resident” in Australia, relevant considerations, ............................ [4.270] overseas adoptions, ................... [4.500], [4.520] prevention of statelessness, .................. [4.1170] purpose of document as guidelines only, ............................ [4.210], [4.220], [4.760] qualifications required of specialists providing evidence of mental or physical incapacity of applicant for conferral of citizenship, .................................. [4.670] replacement of policy guidance by Australian Citizenship Instructions by, ....... [3.20], [3.40], [3.90], [4.210] requirements for form and content of application for citizenship, ..... [4.1420] resumption of citizenship, ...................... [4.990] revocation of citizenship by Minister, ...................................................... [4.1210] Citizenship test Australian Citizenship Test Review Committee, .................... [4.610], [4.650] citizenship applicants exempted from sitting, .............................. [1.10], [4.640], [4.680] citizenship course developed to assist applicants in, ............................... [4.610] content of, ................................... [4.590], [4.610] debate about, .............................................. [1.10] Department of Immigration and Citizenship, Australian Citizenship Test Review Committee, Recommendations and Government Responses (2008), ... [4.650], [4.920] introduction of, ............................ [1.10], [4.200] key determinant, where, ........... [4.590], [4.610] pledge of commitment central to purpose and content of, .................................... [4.120] practical effect on assessment of applicants by, ............................................ [4.610], [7.60]

purpose of, .......... [1.60], [4.590], [4.610], [7.60] Common law best means of protection of citizenship, whether, ....................................... [6.250] children as citizens at, ................ [6.150], [7.90] High Court of Australia decisions, ........ [1.20], [1.110], [3.10], [3.20], [3.100], [3.110], [4.70], [6.10]-[6.260], [7.30] citizenship as constitutional concept, whether, ......... [6.20]-[6.140] — see also Australian Constitution — see also Citizenship citizenship as entirely statutory concept, whether, ......................................... [6.20] inconsistent interpretations of naturalisation and aliens head of power in Australlian Constitution, .... [3.100], [3.110], [4.70], [6.50]-[6.120], [7.30] inconsistent meaning attributed to “citizen” and “citizenship”, ...... [1.20], [1.110], [6.10]-[6.260] meaning/ evolution of meaning of “British subject”, .......................... [3.20] reflection of legal and normative notions of membership of Australian communty, ........ [1.110], [6.10], [6.250], [6.260] implied constitutional rights, whether, ........................................................ [6.250] inconsistent development of, .... [1.20], [1.110], [6.10], [6.250] principles of nationality at, ......... [1.40], [3.20], [3.90], [4.120] qualified right to remain in country at, ........................................................ [6.150] right of children and parents for child’s best interests to be taken into account at, ........................................................ [6.150] right of re-entry to Australia at, ........... [6.150] Consequences of citizenship / non-citizenship determination of some non-legal, whether assisted by Preamble to Australian Citizenship Act 2007 (Cth), .......... [4.90] discrimination upon basis of citizenship and residence or other forms of lesser membership, ....... [1.20], [1.70]-[1.100], [1.130], [2.190]-[2.230], [4.70], [5.10]-[5.310], [6.60], [6.160]-[6.240], [7.30], [7.50], [7.90], [7.120] blunt tool, whether, ................ [5.30], [5.60] Commonwealth legislation divided according to subject matter, ...... [1.70], [5.60]-[5.240], [5.260]-[5.300] conflict between universal inclusive notion of citizenship and formal exclusive representations of legal citizenship, ..... [1.100], [1.130], [2.190], [5.10], [5.40], [5.140], [5.310] constitutional validity of legislation under naturalisation and aliens power, whether, ......................................... [4.70]

Index Consequences of citizenship / non-citizenship — cont distinction between “citizen” and “non-citizen” in Commonwealth legislation, ........... [1.20], [1.70]-[1.100], [1.130], [2.200]-[2.230], [5.10], [5.30], [5.60], [5.70], [5.100], [5.130], [5.140], [5.160], [5.180], [5.190], [5.210]-[5.230], [5.250], [5.310], [6.60], [6.160]-[6.240], [7.30], [7.90], [7.120] distinction between “resident” and “non-resident” in Commonwealth legislation, .......... [1.70], [1.80], [1.100], [1.130], [2.210], [5.60]-[5.150], [5.170], [5.180], [5.200]-[5.220], [5.240], [5.250], [6.200]-[6.210] income tax legislation, ........ [1.70], [1.100], [5.60], [5.110], [6.200], [6.240] inconsistency amongst Commonwealth legislation, .......... [1.20], [1.70], [1.100], [5.60]-[5.250], [5.310], [7.30], [7.90] international law, ...... [5.20], [6.190], [7.50] legislation concerned with extraterritoriality, ............. [1.70], [5.60], [5.100] legislation conferring benefits, ........ [1.70], [1.100], [2.230], [5.10], [5.30], [5.60], [5.70] legislation conferring rights, .... [1.70]-[1.100], [1.130], [2.210], [5.60], [5.210]-[5.240], [6.170]-[6.200] legislation encouraging Australian investment, ............ [1.70], [5.60], [5.80] legislation explicitly not discriminating, ................................ [1.70], [5.60], [5.260] legislation explicitly not discriminating but impacting membership and rights, .... [1.70], [5.60], [5.270]-[5.300], [6.230], [7.30] legislation granting immunity, ........ [1.70], [5.60], [5.90] legislation imposing liabilities or obligations or prohibitions, .... [1.70]-[1.100], [1.130], [2.210], [5.60], [5.130]-[5.170], [6.170]-[6.200], [6.220], [6.240] legislation imposing membership qualifications, ...... [1.70], [5.60], [5.180] legislation relating to jurisdiction, .. [1.70], [5.60], [5.120] legislation requiring residents to register in order to participate, ... [1.70], [5.60], [5.200] references still to “British subject” in Commonwealth legislation, ...... [5.60], [5.140], [5.180], [5.210] migration legislation, ............ [1.70], [1.90], [2.210], [5.30], [5.60], [5.190], [5.310], [6.60], [7.30], [7.90], [7.120] other legislation discriminating between citizens and non-citizens / residents and non-residents, ..................... [5.250] reasons for, ........................................... [5.30] significant, whether, ......................... [5.310]

465

use of “domicile” in Commonwealth legislation, ............ [1.70], [5.60], [5.70], [5.110], [5.120], [5.250], [7.30] gender impacts, .... [1.20], [1.100], [5.10] — see also Gender — see also Women race impacts, ... [5.10] — see also Aliens — see also Indigenous Australians special rights and obligations brought by citizenship, international law as framework for assessing whether, .............................................. [5.20], [7.50] underpinning philosophies, .......... [5.10]-[5.50] Constitution of Australia — see Australian Constitution Constitutional Commission Final Report (1988), discussion of and recommendation for express nationality / citizenship power in Constitution, ........... [1.30], [4.70], [7.30] purpose of, .................................................. [7.30] Constitutional Convention debates (1890s) — see Australasian Federal Convention debates (1890s)

D Defence forces citizens and non-citizens not distinguished for purpose of conscription, .......... [1.100], [2.190], [2.210], [5.140], [6.200], [6.220] Defence Act 1903 (Cth), ............. [1.100], [2.190], [2.210], [5.10], [5.140], [6.220] non-citizens not excluded from voluntarily joining, ............ [1.100], [2.190], [2.210], Department of Immigration and Citizenship Australian Citizenship: A Common Bond, Government response to the Report of the Australian Citizenship Council (May 2001), ... [4.590], [4.980], [4.1050], [4.1260], [4.1330], [7.40] Australian Citizenship Test Review Committee, Recommendations and Government Responses (2008), ... [4.650], [4.920] Readers Guide – Australian Citizenship Act 2007 (2007), ........................................... [4.200] Department of Immigration and Ethnic Affairs National Consultation on Multiculturalism and Citizenship (1982), dual citizenship, ...................................................... [4.1330] Department of Immigration and Multicultural Affairs Loss of Australian Citizenship on the Acquisition of Another Citizenship (June 2001), ...................................................... [4.1330]

466

Australian Citizenship Law

Deportation exclusionary notions of citizenship highlighted through Migration Act 1958 (Cth) provisions for, .......... [1.90], [2.230], [6.50], [6.60], [7.120] non-citizens, of, ... [4.10], [4.40], [5.190], [6.30], [6.60], [7.30] protection of Australian citizens from, absence from Australian Constitution of, ........................................................ [3.110] Discrimination array of legislation discriminatory on basis of citizenship and residence, ......... [1.70], [4.70] — see also Consequences of citizenship / non-citizenship constitutional validity under naturalisation and aliens power, whether, ......................................... [4.70] Asian (Chinese) immigrants from 1850s, restriction of, .... [2.40], [2.140], [2.230], [3.40], [4.20] freedom from, on basis of State residence, under Australian Constitution, ... [210[, [2.90], [2.130], [2.220], [6.20], [6.40], [6.130] protection of non-citizens / aliens, whether, ......................................... [6.40] generally, ..................................................... [1.20] impact on community membership and rights of Commonwealth legislation on human rights, ............... [5.270], [5.290] Indigenous Australians, ... [2.30], [2.110] — see also Indigenous Australians perpetuation of discriminatory tendencies, whether, ....................................... [2.230] White Australia Policy, ............ [2.140], [2.230], [3.40], [4.20] women, ....... [2.30], [2.80], [2.90], [2.130] — see also Women Double citizenship concern about consequences of, at Australasian Federal Convention debates (1890s), ............... [2.10], [2.20], [2.100]-[2.120], [2.140], [2.170], [2.180], [2.240] British subject identity, ....... [2.120], [2.180] implications for jury service, ......... [2.110], [2.170] implications for relationship between Commonwealth and States, .... [2.110], [2.120] implications for relationship between Senate and House of Representatives, ........................................................ [2.110] importance of distinction between federation and unified system, ........................................................ [2.110] implications for jury service in States, .......................................... [2.110], [2.170] current concern about, ..................... [2.170] meanings of, ............................... [2.100], [2.120]

substantive effect of citizenship differs from State to State, .............................. [2.170] Dual citizenship alienage and, ................................. [4.70], [6.120] allegiance and, ............... [2.190], [3.20], [4.120], [4.1330], [7.120] Australian citizens taking up citizenship of another country, .. [1.10], [1.30], [1.60], [1.80], [1.100], [1.130], [2.160], [2.190], [3.110], [4.70], [4.110], [4.120], [4.200], [4.980], [4.1010], [4.1160], [4.1170], [4.1180], [4.1250]-[4.1270], [4.1290]-[4.1330], [4.1350], [5.180], [5.190], [6.20], [6.30], [6.90], [6.110], [6.200], [7.20]-[7.40], [7.60], [7.80], [7.100], [7.120], [7.150] cessation of Australian citizenship (from 1948 to April 2002) under Australian Citizenship Act 1948 (Cth) where, ......... [1.10], [4.1010], [4.1160], [4.1170], [4.1290]-[4.1330], [7.120] disqualification from becoming member of Federal Parliament, ......... [1.30], [1.80], [2.190], [4.1170], [4.1300], [4.1330], [5.180], [6.30], [6.200], [7.20]-[7.40] included as “citizen of foreign power”, ... [2.190], [4.1170], [5.180], [7.20]-[7.40] renunciation of Australian citizenship by conduct inconsistent with allegiance to Australia by, ..... [1.60], [1.100], [1.130], [2.160], [2.190], [3.110], [4.70], [4.110], [4.120], [4.200], [4.980], [4.1160], [4.1180], [4.1250]-[4.1270], [4.1330], [4.1350], [5.190], [6.20], [6.90], [6.110], [7.30], [7.40], [7.60], [7.80], [7.100], [7.150] — see also Cessation of citizenship — see also Terrorism cessation of Australian citizenship (from 1948 to April 2002) under Australian Citizenship Act 1948 (Cth) where, ......... [1.10], [4.1010], [4.1160], [4.1170], [4.1290]-[4.1330], [7.120] constitutional validity of provision, ...................................................... [4.1320] enduring relevance despite repeal of provision, ... [4.1300], [4.1310], [4.1330] operation and interpretation of provision, ...................................................... [4.1310] policy issues, .................................... [4.1330] repeal of provision, ........ [4.1300], [4.1320], [4.1330] Department of Immigration and Ethnic Affairs, National Consultation on Multiculturalism and Citizenship (1982), ...................................................... [4.1330] Department of Immigration and Multicultural Affairs, Loss of Australian Citizenship on the Acquisition of Another Citizenship (June 2001), ................................ [4.1330] equal treatment with singular citizens generally (with exceptions), ..... [2.190] exclusion of citizens of other countries from Australian citizenship inferred from

Index Dual citizenship — cont records of Australasian Federal Convention debates (1890s), ... [2.100], [2.190] globalisation and, .................................... [7.120] House of Representatives Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution (July 1997), review of dual citizenship and membership of Parliament, .............................. [4.1330], [7.30], [7.40] Independent National Security Legislation Monitor (INSLM), Annual Report (28 March 2015), and concerns about, .......................................................... [1.10] Joint Committee on Foreign Affairs and Defence, Dual Nationality (1976), ...................................................... [4.1330] Joint Standing Committee on Migration, Australians All: Enhancing Australian Citizenship (1994), review of dual citizenship, ................ [4.1300], [4.1330] loyalty, concept of, and, .......... [4.120], [4.1330] “commitment”, meaning of, and whether distinct from, ............................. [4.1330] meaning of, ...................................... [4.1330] meaning of, ............................................... [2.100] non-citizens seeking refugee status in Australia and, ........................... [4.1330] not permitted under Australian Citizenship Act 1948 (Cth), .......... [1.30], [1.110], [3.40], [4.120], [4.730], [4.1300]-[4.1330], [7.120] constitutional basis / validity of provision, ....................................... [1.30] enduring relevance despite repeal of provision, ... [4.1300], [4.1310], [4.1330] operation and interpretation of provision, ...................................................... [4.1310] policy issues, .................................... [4.1330] repeal of provision, ........ [4.1300], [4.1320], [4.1330] people seeking Australian citizenship by grant and consequences for existing citizenship, ................................ [4.1300] policy issues associated with, .............. [4.1330] renunciation of Australian citizenship as consequence of another country not allowing, .................................... [4.1170]

E Electoral rolls — see Voting rights Evidence of Australian citizenship alteration of, as offence, ........................ [4.1390] application for and notice of, ............... [4.260], [4.1360] cancellation of notice of, ....................... [4.1360] failure to surrender as offence, .......... [4.1360], [4.1370], [4.1390]

467

Extradition and removal from Australia citizenship irrelevant for foreign prosecution or, .................................................. [6.230]

F Franchise — see Voting rights

G Gender — see also Women citizenship as essentially male construct, .................. [1.20], [1.100], [2.140], [3.60] civil status of women as citizens in early 20th century Australia, ......................... [1.20] gendered implications of some federal laws, ........................................................ [1.100] impact on citizenship of, ........... [1.20], [1.100], [5.10] Globalisation children as citizens, evolving global notions of, ........................ [7.70], [7.100], [7.150] future of citizenship and nationality in globalised world, ........... [7.110]-[7.150] growth of, and reliance on, information technology, ...................... [7.110]-[7.130] impact on alliegance to one country only, ............................ [2.190], [7.120], [7.130] impact on Australian Citizenship Act 2007 (Cth), ............................................. [1.130] impact on democracy and governance, ........................................... [7.120]-[7.140] impact on domestic citizenship issues, . [7.10], [7.120]-[7.150] impact on non-citizens in Australia, .... [1.130] impact on sovereignty of states, and relevance for citizenship, . [1.130], [7.110]-[7.150] development of global institutions with authority beyond single governments, .......................................... [7.110], [7.130] development of international law and human rights framework, ........ [7.110], [7.130] development of non-government and other non-state based organisations, ........................................... [7.110]-[7.130] European Union as example, .......... [7.130] suggestion for joint Australia-New Zealand citizenship, ................... [7.120] suggestion for popularly elected global body not determined by nation states, ........................................................ [7.130] legislative expressions of membership and, ........................................................ [7.140] meaning of, ............................................... [7.110] Good character determination of meaning of, whether assisted by Preamble to Australian Citizenship Act 2007 (Cth), ...... [4.1070]

468

Australian Citizenship Law

Good character — cont meaning of, ............................................. [4.1070] requirement of, by applicant for citizenship, ............. [4.420], [4.440], [4.510], [4.590], [4.630], [4.640], [4.680], [4.730], [4.740], [4.1060]-[4.1100] — see also Application for citizenship assessing “good character”, ......... [4.1070], [4.1080] citizenship by conferral, where, .... [4.590], [4.630], [4.640], [4.680], [4.730], [4.740], [4.1060] citizenship by descent, where, ...... [4.420], [4.440], [4.1060] citizenship by overseas adoption, where, ........................................ [4.510], [4.1060] citizenship by resumption, where, ...................................................... [4.1060] decisions by AAT under Australian Citizenship Act 1948 (Cth) regarding, ...................................................... [4.1100] decisions by AAT under Australian Citizenship Act 2007 (Cth) regarding, ...................................................... [4.1090]

H High Court of Australia — see Common law Honorary citizenship, ................................... [1.120] House of Representatives committees — see Australian Parliament committees Human Rights Convention on the Rights of the Child (Int), ................................ [4.50], [4.230], [7.70] application of rights within, ............. [7.70] explicit recognition of children’s civil rights by, ........................................ [7.70] informs concept of “best interests of the child”, ........................................... [4.320] protection of child’s legal identity (including right to nationality) by, .......................................................... [4.50] Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they Live (Int), ......... [5.20], [7.50] globalisation and development of framework for, ................................... [7.110], [7.130] impact on community membership and rights of Commonwealth legislation on anti-discrimination and, ........... [5.270], [5.290] International Covenant on Civil and Political Rights (Int), .......... [5.20], [6.190], [7.50] International Covenant on Economic, Social and Cultural Rights (Int), ......... [5.20], [7.50] International Convention for the Elimination of All Forms of Racial Discrimination (Int), .............................................. [5.20], [7.50]

Joint Committee on Human Rights, Human Rights Scrutiny Report (18 March 2015), ...................................................... [4.1350] judicial use of “citizenship” as means to protect, ......................................... [1.110] morality underpinning law of, not implemented by Australia in treatment of asylum seekers, ..... [5.20] non-binding nature of international law of, .......................................................... [5.20] Universal Declaration of Human Rights (Int), right to nationality under, .......... [4.50]

I Immigration asylum-seekers — see Asylum seekers concerns about regulation of, ..... [1.30], [2.70], [2.230] Australasian Federal Convention debates (1890s), in, ........... [1.30], [2.70], [2.230] continuation into 21st century of, .. [2.230] distinction between citizens and aliens as foundation of law, ........................ [7.30] exclusion as theme of, .. [2.230], [7.30], [7.100] fear of and antagonism towards Chinese, ................................ [2.40], [2.140], [3.40] Immigration Restriction Act 1901 (Cth) (White Australia Policy), ......... [2.140], [2.230], [3.40], [4.20] debate over bill for, ............................ [3.40] passage of, ............................................ [4.20] introduction of more inclusive programs, impact on Australian identity of, ........................................................ [2.180] Migration Act 1958 (Cth), ............. [1.70], [1.90], [2.210], [2.230], [4.10], [4.40], [5.30], [5.60], [5.190], [5.210], [5.220], [5.280], [5.310], [6.30], [6.50], [6.60], [6.140], [7.30], [7.90], [7.120] absolute right of re-entry to Australia of Australian citizens under, whether, ............................................ [5.190], [7.90] absolute right to remain in Australia of Australian citizens, whether, ... [5.190] administrative detention of non-citizens under, ................. [5.190], [6.60], [6.140] deportation of non-citizens under, . [4.10], [4.40], [5.190], [6.30], [6.60], [7.30] exclusionary notions highlighted through objects, removal and deportation, and detention provisions, .... [1.90], [2.230], [6.50], [6.60], [7.120] explicit distinctions between citizens and non-citizens, ....... [1.70], [1.90], [2.210], [5.30], [5.60], [5.190], [5.310], [6.60], [7.30], [7.90], [7.120] focus of regulation on non-citizens (including permanent residents), .............................. [2.230], [5.190], [6.50] judicial review of decisions made under, reduction of rights of non-citizens where, ... [5.190], [5.280], [6.50], [6.140]

Index Immigration — cont objects of, .............................. [2.230], [5.190] reflection of political membership of community, ........................ [1.90], [6.50] status of British subjects unclear, .... [4.40], [5.190], [6.30] visa entitlements under, ... [2.230], [5.190], [5.210], [5.220] prevention of abuse of citizenship to obtain advantage in, .................... [1.60], [3.90] refugees — see Refugees White Australia Policy, . [2.140], [2.230] [3.40], [4.20] current proposals by members of Parliament for return to, ........... [2.230] Immigration Restriction Act 1901 (Cth), .................. [2.140], [2.230], [3.40], [4.20] Independent National Security Legislation Monitor (INSLM) Annual Report (28 March 2015), ............... [1.10] functions and powers of, ......................... [1.10] Indigenous Australians Australasian Federal Convention debates (1890s) and, ..................... [2.30], [2.110] constitutional protection of, whether, .. [6.130] denial of vote from 1902 to 1962 to, ... [2.220], [6.190] experience of citizenship / membership of community of, ... [1.20], [2.220], [3.40], [3.110], [4.30], [5.10], [6.130], [6.190] included under Naturalization Act 1903 (Cth) on basis of being British subjects by birth, ............................................... [3.40] “obnoxious citizenship” as likely reference in Australasian Federal Convention Debates (1890s) to exclusion of Asians and, ............................................... [2.110] restrictions on adults applying for certificates of citizenship from 1944 to 1971 by Western Australian legislation, .. [3.10] International law application for citizenship by adoption, where overseas adoption by Australian citizen in accordance with Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Int) or bilateral agreement, .......... [1.10], [1.60], [4.120], [4.200], [4.280], [4.310], [4.370], [4.470]-[4.520], [4.1060]-[4.1100], [7.60], [7.80], [7.90] — see also Adoption — see also Application for citizenship Convention on the Reduction of Statelessness (Int), .............. [4.750], [4.1130], [1.1170] Convention on the Rights of the Child (Int), ................................ [4.50], [4.230], [7.70] application of rights within, ............. [7.70] explicit recognition of children’s civil rights by, ........................................ [7.70]

469

informs concept of “best interests of the child”, ........................................... [4.320] protection of child’s legal identity (including right to nationality) by, .......................................................... [4.50] Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they Live (Int), ......... [5.20], [7.50] framework for assessing distinctions between rights of citizens and non-citizens in potential bill of rights, as, ......... [5.20], [7.50] globalisation and development of, ...... [7.110], [7.130] International Covenant on Civil and Political Rights (Int), .......... [5.20], [6.190], [7.50] International Covenant on Economic, Social and Cultural Rights (Int), ......... [5.20], [7.50] International Convention for the Elimination of All Forms of Racial Discrimination (Int), .............................................. [5.20], [7.50] “nationality”, meaning of, under, ........... [4.50] non-binding nature of, .............................. [5.20] renunciation of Australian citizenship where service by dual citizen outside Australia in armed forces of enemy country or declared terrorist organisation and, ... [4.1350] — see also Terrorism Universal Declaration of Human Rights (Int), .......................................................... [4.50]

J Judicial review — see Review of decisions Jury service concern about double citizenship and implications for, ............ [2.110], [2.170] Australasian Federal Convention debates (1890s), at, ...................... [2.110], [2.170] currently, ............................................. [2.170] discrimination between citizens and permanent residents in eligibility for, whether, ........... [2.210], [2.220], [6.210]

L Loss of citizenship — see Cessation of citizenship

M Merits review — see Review of decisions Migration — see Immigration Military service — see Defence forces Multiculturalism Department of Immigration and Ethnic Affairs, National Consultation on

470

Australian Citizenship Law

Multiculturalism — cont Multiculturalism and Citizenship (1982), ...................................................... [4.1330] impact on Australian identity of, ......... [2.180]

N Nationality — see also Naturalisation British Nationality Act 1981 (UK), status of British subject withdrawn from Australian citizens for purposes of British law by, .......... [4.190] — see also British subjects British Nationality and Status of Aliens Act 1914 (UK), basis for uniform law of nationality throughout British Empire, as, ............................ [1.40], [3.20], [3.90] Canadian approach to, ............................ [3.120] “citizenship”, whether alternative for or distinct from, ... [1.20], [3.10], [7.10] — see also Citizenship common law principles of, ......... [1.40], [3.20], [3.90], [4.120] determined by allegiance to monarch by birth or through naturalisation, .......... [3.20] generally, ..................................................... [1.10] Joint Committee on Foreign Affairs and Defence, Dual Nationality (1976), ...................................................... [4.1330] meaning under international law of, ..... [4.50] Nationality Act 1920 (Cth), ........ [1.40], [4.1300] loss of British nationality if naturalised in foreign state, ............................. [4.1300] naturalisation as British subjects as main concern of, ..................................... [1.40] Nationality and Citizenship Act 1948 (Cth), ....... [1.40], [1.50], [2.150], [3.10], [3.20], [3.50], [3.90], [3.120], [4.130], [4.140], [4.180] attacks on bill for, ............... [3.120], [4.180] Australian citizenship as legal status under, ............................. [4.130], [4.140] basis of, ................................................. [3.50] children, status under, ....................... [3.90] citizenship by descent provisions, ... [3.50] “citizenship” first legally defined in, ................................ [1.40], [2.150], [3.10] commencement of, ............................ [4.130] consequences and nature of citizenship not dealt directly with by, ........ [2.150] introduction of, ........................ [1.50], [3.50] jus soli principle, ................................. [3.90] proposal for legal definition of “Australian Nationality” in bill for, ........................................................ [3.120] renaming as Australian Citizenship Act 1948 (Cth) in 1973, ........ [1.40], [2.150], [3.10], [4.130] — see also Australian Citizenship Act 1948 (Cth) retention or severance of ties to British Empire by enactment of, whether, .......................................... [3.120], [4.180]

significant step towards Australian independence, as, ......................... [3.20] status of British subject under, ........ [1.50], [4.130], [4.140] nationality by birthplace (jus soli) principle, .................................. [1.60], [3.20], [3.90] abandonment of, ..................... [1.60], [3.90] determination of allegiance by (generally), .......................................................... [3.20] resistence to independent Australian identity in first 48 years of Federation, . [3.120] right to, under Universal Declaration of Human Rights (Int), .................................... [4.50] Naturalisation — see also Application for Citizenship — see also Automatic acquisition of citizenship — see also Nationality Australian Naturalization Act 1897 (Imp), .......................................................... [3.30] colonial legislation prior to Federation, .......................................................... [3.30] High Court’s inconsistent approaches to naturalisation and aliens head of power in Australian Constitution, .... [3.100], [3.110], [4.70], [6.50]-[6.120], [7.30] meaning of, ................................................. [4.30] Nationality Act 1920 (Cth), ........... [3.40], [3.50], [3.70], [3.90] antecedents of provisions of Australian Citizenship Act 2007 (Cth) in, .... [3.40], [3.50] basis of Nationality and Citizenship Act 1948 (Cth), as, ............................... [3.50] children excluded from grant of certificate of naturalisation, .......................... [3.90] continuing relevance of, particularly with respect to applications for Australian citizenship by descent, ................ [3.50] explicit philosophy about membership of Australian community, ................ [3.40] foreign-born women married to British subjects, status of, ........................ [3.70] implementation of common code mirroring British Nationality and Status of Aliens Act 1914 (UK) as, ........ [3.50], [3.90] introduction of, .................................... [3.50] jus soli principle, ................................. [3.90] married women generally excluded from grant of certificate of naturalisation, .............................................. [3.50], [3.90] “person under a disability” generally excluded from grant of certificate of naturalisation, ................... [3.50], [3.90] removal of exclusionary provisions (of Naturalization Act 1903 (Cth)) about Indigenous populations, ............. [3.50] residence requirements for citizenship by naturalisation (now, “by conferral”) first contained in, ......................... [3.50] revocation of naturalisation, . [3.40], [3.90]

Index Naturalisation — cont Nationality Act 1946 (Cth), ........................ [3.80] Nationality and Citizenship Act 1948 (Cth) — see Citizenship — see Nationality nationality by birthplace (jus soli) principle, .................................. [1.60], [3.20], [3.90] abandonment of, ..................... [1.60], [3.90] determination of allegiance by (generally), .......................................................... [3.20] nationality determined by allegiance to monarch by birth or through, .... [3.20] Naturalization Act 1903 (Cth), ... [1.40], [2.150], [3.40], [3.50], [3.70], [3.90], [4.20] “British subject” defined by, .......... [2.150], [3.40] children, naturalisation under, ........ [3.40], [3.90] deemed naturalisation, ...................... [3.40] foreign-born women married to British subjects, status of, ........................ [3.70] Indigenous Austalians included on basis of being British subjects by birth, .......................................................... [3.40] Indigenous populations of Asia, Africa and Pacific Islands (except New Zealand) excluded, ...................... [3.40] intentions of equality of rights amongst British subjects expressed in, ..... [3.40] naturalisation as British subjects main concern of, ..................................... [1.40] proviso as to discrimination by State laws between “natural-born British subjects” and naturalised British subjects, .......................................... [3.40] repeal of, ............................................... [3.50] States excluded from issuing certificates of naturalisation, ............................... [4.20] status of naturalised persons under, ........................................................ [2.150] responsibility of Federal Parliament, .... [3.10], [4.30] Western Australian legislation despite “exclusive” control by Commonwealth, ........................... [3.10] women, of, in first 48 years after Federation, ............................................... [3.50]-[3.90] Australian-born married, ....... [3.60], [3.80] Australian-born non-married, ......... [3.60], [3.80] differential regulation of, ....... [3.60], [3.70] foreign-born, ............................. [3.60]-[3.80] married, ........................ [3.50], [3.60], [3.80] Non-citizens — see also Aliens administrative detention of, ..... [5.190], [6.60], [6.140] citizenship status distinguished, generally, .......................................................... [1.20] Commonwealth power over, .... [1.30], [1.110], [2.230], [3.10], [3.20], [3.100], [3.110], [4.10]-[4.50], [4.70], [4.80], [4.120], [5.190], [6.20], [6.50]-[6.120], [7.30] — see also Australian Constitution

471

exclusionary device, as, .... [1.110], [3.100], [6.50], [7.30] constitutional right to freedom from discrimination on basis of State residence, whether protects, ....... [6.40] Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they Live (Int), ..................... [5.20] defence force service by, .......... [1.100], [2.190], [2.210], [5.140], [6.200], [6.220] no distinction between citizens and, for purpose of conscription, .......... [1.100], [2.190], [2.210], [5.140], [6.200], [6.220] not excluded from voluntarily joining, ........................... [1.100], [2.190], [2.210], deportation of, ..... [4.10], [4.40], [5.190], [6.30], [6.60], [7.30] federal legislation discriminating between citizens and — see also “Migration Act 1958 (Cth), under” below — see also and Consequences of citizenship / non-citizenship Commonwealth Electoral Act 1918 (Cth) — see also Voting rights Passports Act 1938 (Cth) — see also Passports globalisation, impact of, on, .................. [1.130] indefinite detention of stateless, ............. [6.60] international law as framework for assessing distinctions in potential bill of rights between rights of citizens and, .............................................. [5.20], [7.50] Migration Act 1958 (Cth), under, ............ [1.70], [1.90], [2.210], [2.230], [5.30], [5.60], [5.190], [5.280], [5.310], [6.50], [6.60], [6.140], [7.30], [7.90], [7.120] — see also Immigration explicitly distinguished from citizens, ....... [1.70], [1.90], [2.210], [5.30], [5.60], [5.190], [5.310], [6.60], [7.30], [7.90], [7.120] focus on non-citizens (including permanent residents), . [2.230], [5.190], [6.50] judicial review of decisions made, and reduction of rights of, .............. [5.190], [5.280], [6.50], [6.140] permanent residents, as, .. [1.20], [1.40], [1.80], [1.100], [2.160], [3.10], [3.110], [4.60], [7.120] application for citizenship by conferral by — see Application for citizenship British subjects as, ...... [1.40], [1.80], [3.10], [3.110] defined, ............................................... [4.600] legal citizens distinguished, .............. [1.20] New Zealanders’ status as, ............. [7.120] participation in community of, ...... [1.100] treatment of, distinguished from that of legal citizens, ............................... [2.160] protection of rights of, in potential bill of rights, whether, ............ [1.110], [1.130], [6.250]

472

Australian Citizenship Law

Non-citizens — cont social membership of community / participation by, ............. [1.20], [1.100], [2.220], [6.200] — see also Consequences of citizenship / non-citizenship temporary residents, as, ............. [1.20], [1.100] legal citizens distinguished, .............. [1.20] participation in community of, ...... [1.100] time threshold after which granted equal rights with citizens or awarded automatic nationality, argument for, ............................................ [1.100], [5.50] unlawful, ..................................................... [1.20] voting rights, rationale for extension of, to resident, ....................................... [6.200]

O Offences Australian Citizenship Act 2007 (Cth), against, ....................... [4.1120], [4.1360]-[4.1410] alteration of evidentiary notice of Australian citizenship, ............ [4.1390] bogus documents, ........................... [4.1410] criminal penalties, ............ [4.1370]-[4.1400] failure to destroy identifying information when required, ......................... [4.1400] failure to surrender evidentiary notice of Australian citizenship when requested, .. [4.1360], [4.1370], [4.1390] false statements or representations, ...................................... [4.1370], [4.1380] overview of, ..................................... [4.1370] unauthorised access, disclosure, modification or impairment, or destruction of identifying information, ...................... [4.1120], [4.1370], [4.1400] Australian law, against, as ground for refusal of application for citizenship, ...................................................... [4.1150] renunciation of Australian citizenship of dual citizen where conviction for terrorism and certain other, ...... [4.980], [4.1160], [4.1270] relevant offences, ............................. [4.1270] revocation by Minister of citizenship for, ..... [4.1160], [4.1190], [4.1220], [4.1230], [4.1370], [4.1380]

P Passports applications by citizens for, ................... [5.210] extraterritorial application of legislation regulating, regardless of citizenship, ........................................................ [5.100] Independent National Security Legislation Monitor (INSLM), functions and powers of, ...................................... [1.10] issue of, only to citizens, ........................ [5.220]

reflection of political membership of community, .................................... [1.90] significant discrimination between citizens and non-citizens in relation to, .............................. [2.210], [5.310], [7.90] Permanent residents — see also Non-citizens — see also Residence application for citizenship by conferral by — see Application for citizenship British subjects as, ............ [1.40], [1.80], [3.10], [3.110] defined, ...................................................... [4.600] legal citizens distinguished, ..................... [1.20] New Zealanders’ status as, .................... [7.120] participation in community of, ............. [1.100] time threshold after which granted equal rights with citizens or awarded automatic nationality, argument for, ............................................ [1.100], [5.50] treatment of, distinguished from that of legal citizens, ........................................ [2.160] voting rights, rationale for extension of, to, ........................................................ [6.200] Pledge of commitment affirmation by existing citizens as voluntary alternative to, .............................. [4.120] “allegiance” omitted from, ..................... [4.120] breach of, not invalidation of citizenship, ........................................................ [4.120] cancellation of approval of citizenship before commencement if not made within requisite time, ............................. [4.950] central to purpose and content of citizenship test, ............................................... [4.120] certain individuals exempt from, ........ [4.120], [4.930] classes of people exempt from, ............. [4.120] commencement of citizenship by conferral when make (unless exempted), ........................................................ [4.920] delay in making, procedure where, .... [4.940], [4.950] exemption from, where, ........... [4.120], [4.930] expression of alliegance by “new Australians”, as, ......................... [4.120] focus of citizenship test, as, ................... [4.610] how and when made, ............................. [4.120] “loyalty” distinguished from “commitment”, whether, ....................... [4.120], [4.1330] prerequisite to conferral of citizenship, .......................................... [4.120], [4.530] public, in, if reasonably practicable, .... [4.930] text of, ........................ [4.120], [4.1300], [4.1330] between 1966 and 1986, ................. [4.1300] current, ................................ [4.120], [4.1330]

Index

R Race — see also Indigenous Australians impact on citizenship of, .......................... [1.20] Refugees — see also Asylum seekers Convention Relating to the Status of Refugees (Int), ............................................ [4.1330] dual nationality and, ...................... [4.1330] globalisation and, ...................... [7.120], [7.150] Refugee Council of Australia, Delays in Citizenship Applications for Permanent Refiugee Visa Holders (October 2015), ........................................................ [4.910] Renunciation of citizenship — see Cessation of citizenship Residence — see also Permanent residents — see also Temporary residents requirements for application for conferral of citizenship, ....... [3.50], [4.470], [4.590], [4.620], [4.640], [4.680], [4.760]-[4.900] — see also Application for citizenship rights of, ...................................................... [5.50] Resumption of citizenship — see Application for citizenship Review of decisions Commonwealth Ombudsman and, .... [4.1450] freedom of information and, ............... [4.1450] judicial review, ........ [4.760], [4.1450], [4.1460], [5.190], [5.280], [6.50], [6.140] decisions made under Citizenship Policy, of, .................................................. [4.760] decisions made under Migration Act 1958 (Cth), of, and reduction of rights of non-citizens, ..... [5.190], [5.280], [6.50], [6.140] guaranteed by Australian Constitution, ........................................................ [5.190] merits review by AAT, ........... [4.760], [4.1090], [4.1100], [4.1450], [4.1470] decisions made under Australian Citizenship Act 1948 (Cth), of, . [4.1100] decisions made under Australian Citizenship Act 2007 (Cth), of, ...................... [4.1090], [4.1450], [4.1470] decisions made under Citizenship Policy, of, .................................................. [4.760] Revocation of citizenship — see Cessation of citizenship

S Senate committees — see Australian Parliament committees Statelessness alienage and, ................................. [4.40], [6.120]

473

application for citizenship by conferral by stateless person born in Australia, ........... [4.530], [4.750], [7.80] — see also Application for citizenship Convention on the Reduction of Statelessness (Int), .............. [4.750], [4.1130], [1.1170] generally, ........................................... [4.1170] limitations to exclusion of stateless from citizenship on national security grounds, ..................................... [4.1130] relevance to application for citizenship by stateless person, .......................... [4.750] indefinite detention of stateless non-citizen, .......................................................... [6.60] prevention of, ......................................... [4.1170] Subjecthood — see British subjects

T Temporary residents — see also Non-citizens — see also Residence legal citizens distinguished, ..................... [1.20] participation in community of, ............. [1.100] Terrorism globalisation and, ...................... [7.120], [7.150] impact on domestic citizenship issues, .. [7.10] renunciation of Australian citizenship of dual citizen where conviction for terrorism and certain other offences, ...... [4.980], [4.1160], [4.1270] relevant offences, ............................. [4.1270] renunciation of Australian citizenship of dual citizen where intentional conduct relating to terrorism, ............... [4.1160], [4.1180] ineligibility to resume Australian citizenship after, ....................... [4.1180] specified conduct, ........................... [4.1180] renunciation of Australian citizenship of dual citizen where service outside Australia in armed forces of enemy country or declared terrorist organisation, . [1.60], [1.100], [1.130], [2.160], [2.190], [3.110], [4.70], [4.110], [4.120], [4.200], [4.980], [4.1160], [4.1250], [4.1260], [4.1330], [4.1350], [5.190], [6.20], [6.90], [6.110], [7.30], [7.40], [7.60], [7.80], [7.100], [7.150] application of, .................................. [4.1250] automatic effect of, ......................... [4.1250] constitutional validity and limits of, ........................................ [4.1350], [6.110] effect of, ...................... [5.190], [7.60], [7.80] ineligibility to resume Australian citizenship after, ....................... [4.1250] international law matters arising from, ...................................................... [4.1350] operation of, ......................................... [7.80] rationale for, ......................................... [7.60]

474

Australian Citizenship Law

Terrorism — cont reduction of threshold age to 14 years, ............................................ [7.80], [7.100] reflection of meaning of membership of Australian community, as, .......... [7.30]

V Voting rights articulated by Australian Constitution, ............................. [6.130], [6.170]-[6.190] British subjects on electoral roll before 1984, of, ......... [1.80], [3.120], [5.140], [5.210], [5.220], [6.170], [6.190] centrality of, to notion of citizenship, .. [6.130] children under 18 excluded, despite legal status as citizens, ........... [1.20], [6.190], [7.90] citizenship as necessary qualification in Commonwealth and State / Territory elections, ........... [1.80], [1.100], [2.170], [2.210], [2.220], [6.170]-[6.200] — see also “Commonwealth Electoral Act 1918 (Cth)” below Commonwealth Electoral Act 1918 (Cth), ... [1.20], [1.80], [1.100], [2.170], [2.210], [2.220], [3.120], [5.140], [5.210], [5.220], [5.310], [6.170]-[6.200], [7.90], [7.120], [7.130] children disenfranchised by, .......... [6.190], [7.90] citizenship as necessary but not sufficient qualification for voting, ............. [1.80], [1.100], [2.170], [2.210], [2.220], [6.170]-[6.200] denial of vote to Indigenous Australians from 1902 to 1962, ........ [2.220], [6.190] disqualification under, ........ [6.180]-[6.200] eligibility to vote under, .................. [6.190] enrolment by Australians residing overseas, ............ [1.80], [7.120], [7.130] International Covenenant on Civil and Political Rights (Int), whether relevant to disqualification under, .......... [6.190] introduction of compulsory voting., ........................................................ [6.170] itinerant electors, ............................... [6.190] reflection of political membership of community by way of voting rights / duties under, ...... [1.20], [1.80], [1.100], [2.220], [3.120], [5.140], [5.210], [5.220], [6.170]-[6.200], [7.120], [7.130] requirement that members of Federal Parliament be citizens, ................ [1.80] significant discrimination between citizen and non-citizen under, ............. [5.310], [6.170], [6.200], [7.90] Commonwealth Franchise Act 1902 (Cth), .......................................................... [3.40] globalisation, impact of, on, ..... [7.120]-[7.140]

important reference point in defining “citizenship”, as, ............. [2.80], [2.90], [2.130] local goverment elections, in, .................. [1.80] New Zealand, in, ......................... [1.80], [6.200] rationale for extension to non-citizen residents of, .................................................. [6.200] Republic of Ireland, in, ............................. [1.80] scope of, under Australian Constitution, ............................. [6.130], [6.170]-[6.190] State and Territory legislation, ... [1.20], [1.80], [1.100] United Kingdom, in, ............................... [6.200] virtual, proposal in South Australia for, enabling voting by expatriate citizens in State elections, ......................... [1.80] women, of, ........................ [2.80], [2.90], [2.220] lack of, ....................................... [2.80], [2.90] non-Aboriginal, of, ........................... [2.220]

W Women — see also Gender Australasian Federal Convention debates (1890s) and, .......... [2.30], [2.80], [2.90], [2.130] non-involvement in, ............. [2.30], [2.130] place as citizens, ......... [2.30], [2.80], [2.90], [2.130] civil status as citizens in early 20th century Australia, ....................................... [1.20] invisibility within language of citizenship of, .......................................................... [1.20] Nationality Act 1920 (Cth), under, .......... [3.50], [3.70], [3.90] foreign-born and married to British subjects, status of, ........................ [3.70] married, generally excluded from grant of certificate of naturalisation, ....... [3.50], [3.90] Nationality Act 1946 (Cth), more liberal attitude to national status of women under, ............................................. [3.80] naturalisation of, in first 48 years after Federation, .......................... [3.50]-[3.90] Australian-born married, ....... [3.60], [3.80] Australian-born non-married, ......... [3.60], [3.80] differential regulation of, ....... [3.60], [3.70] foreign-born, ............................. [3.60]-[3.80] married, ........................ [3.50], [3.60], [3.90] Naturalization Act 1903 (Cth), under, ...... [3.70] foreign-born and married to British subjects, status of, ........................ [3.70] unequal representation in Parliament of, despite voting rights, ................ [2.220] voting rights, .................... [2.80], [2.90], [2.220] lack of, ....................................... [2.80], [2.90] non-Aboriginal women, ................... [2.220]