Bills Digest No. 78 2001-02
Australian Citizenship Legislation Amendment Bill 2002
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
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Australian Citizenship Legislation
Amendment Bill 2002
Date Introduced: 13 February 2002
House: House of Representatives
Portfolio: Immigration and Multicultural and Indigenous
Commencement: Schedule 1 commences on Royal
Assent, Schedule 2 on Proclamation or six months after Royal
The Bill proposes
- repeal section 17 of the Australian Citizenship Act
1948 with the effect that adult Australian citizens do not
lose their Australian citizenship on acquisition of another
- extend the descent and resumption provisions to give young
people more opportunities to acquire Australian citizenship
- provide for children who acquire Australian citizenship with
their responsible parent, or at a later date, to be given their own
- strengthen aspects of the integrity of the Australian
citizenship process, and
- insert a specific reference to 'people smuggling' offences in
the existing provision in the Australian Citizenship Act
1948 which provides for the deprivation of Australian
citizenship in certain circumstances.
This Bill was originally introduced into the
Parliament in September 2001. The Australian Citizenship
Legislation Amendment Bill 2001 was not debated or referred to a
committee. That Bill lapsed with the dissolution of Parliament for
the November 2001 federal election.
The following background deals with the issue of
dual citizenship. A brief background to the other measures in this
Bill appears in the Main Provisions section of this Digest.
Australian citizenship may be acquired by birth,
adoption, descent or discretionary grant.
A dual citizen is a person who holds citizenship
of two countries. Although no official statistics are collected by
the Australian Bureau of Statistics, the Australian Citizenship
Council has estimated that there are 4.4 million Australians who
are already dual citizens. (1)
Australian law is anachronistic in that it
allows naturalised Australians to hold dual citizenship, yet, in
most cases prevents those persons who have been Australian citizens
since birth from acquiring the citizenship of another country
without losing their Australian citizenship. This situation is
inequitable in the sense that it attempts to restrict dual
citizenship for one sector of the population, yet for another
sector of the population -approximately one quarter - dual
citizenship is already a fait accompli.
The categories of Australian citizens who
already possess another citizenship include:
- Australian citizens by grant who are able, under the law of
their country of origin, to keep their previous citizenship on
obtaining Australian citizenship
- Australian citizens born in Australia who automatically
acquire, through a parent, another citizenship by descent
- Australian citizens born overseas to an Australian citizen
parent who by the law of that country acquire that citizenship by
- Australian citizens who acquire the citizenship of another
country automatically by legislation of that country, for example,
Section 17 of the Australian Citizenship Act
1948 provides that, except in relation to 'an act of marriage'
a person who does 'any act or thing: (a) the sole or dominant
purpose of which; and (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'. Thus, if an
Australian citizen applies to become a citizen of another country,
the act of making that application will, once approved, lead to the
loss of Australian citizenship.
With respect to these consequences, the
Australian Citizenship Council stated:
Around 600 cases of loss of Australian Citizenship come to the
notice of the Department of Immigration and Multicultural Affairs
(the Department) each year, often in the context of the individual
applying for an Australian passport. In some cases, the Department
may have to advise a person that she or he has ceased to be an
Australian Citizen some years previously. Many of these
notifications cause significant distress to the individuals
concerned. Many cases of persons losing their Australian
citizenship do not come to official notice at
Arguments For and Against
Broadly, the argument in favour of dual
citizenship is that the prohibition on dual citizenship effectively
discriminates against Australians who are citizens by birth.
Moreover dual citizenship was considered to be
- an acceptance of multiculturalism and would enhance Australia's
international reputation accordingly;
- an acceptance of the fact that loyalty and commitment to a
country is not solely possessed by the holders of single
- economic globalisation, instant communications and vastly
increased personal mobility by facilitating travel, business and
work opportunities for individuals;(4) and
- an international trend towards dual citizenship, with the
United States, the United Kingdom, New Zealand, Canada, France and
Italy all allowing their citizens to hold another citizenship
without this affecting their existing citizenship status.
Broadly, the argument against dual citizenship
is that it raises questions of disloyalty to Australia and that it
runs contrary to notions of national identity, and cohesion. It is
also argued that citizenship should not be degraded by being
treated as a commodity to be sought for economic reasons or
convenience of travel arrangements, employment opportunities or tax
advantages. As one commentator has suggested, '[i]t is this
symbolic significance of citizenship (and/or populist politics)
that has prevented successive governments from repealing section 17
of the Australian Citizenship Act 1948, despite the
recommendation of Parliamentary and government commissioned
inquiries over the last decade.'(5)
Inquiries and Reviews
In 1976, the Parliamentary Joint Committee on
Foreign Affairs and Defence carried out an inquiry into dual
nationality.(6) Its reference was 'the international
legal and diplomatic aspects of the situation of Australians
possessing dual or plural nationality'. That inquiry rejected the
introduction of dual nationality for Australian born citizens. By
1994, attitudes to dual citizenship had altered significantly. The
Joint Standing Committee on Migration inquiry in its report
Australians All: Enhancing Australian Citizenship
recommended the repeal of section 17 of the Australian
Citizenship Act 1948, on the grounds that it was outmoded and
discriminatory. The 'allegiance' argument was rejected on the
grounds that there was little evidence to suggest a lack of loyalty
amongst those Australians who had not relinquished former
In February 2000 the Australian Citizenship
Council's released its report, Australian Citizenship for a New
Century, following the distribution of an issues paper
entitled Contemporary Australian Citizenship. The Council
'strongly' recommended repeal of section 17 of the Australian
Citizenship Act 1948, 'so that Australian citizens over the
age of 18 do not lose their Australian Citizenship on acquisition
of another Citizenship'.(8)
In May 2001, the Government responded to the
report, with a paper entitled Australian Citizenship: A Common
Bond.(9) In that paper the government indicated its
disposition to support the Citizenship Council's
Until very recently, political leaders have
continued to view the issue as politically sensitive in the broader
community. The position of the major political parties on dual
citizenship over the past decade has been somewhat opaque - it has
often been stated that the question should be reviewed in the
context of a more wide-ranging review of citizenship legislation.
Nevertheless, the previous Labor Government removed the
renunciation of former allegiances in the oath of allegiance in
1986, and relaxed requirements for resumption of citizenship
relinquished under section 17 of the Australian Citizenship Act
1948 in 1995.
The Keating Labor Government however declined,
in a pre-election environment, to respond to the Joint Standing
Committee's recommendation referring it for a forthcoming review
and redrafting of citizenship legislation scheduled to be completed
In August 1998 the Coalition Government
established the Australian Citizenship Council to report by the
close of 1999 on 'contemporary issues in Australian citizenship
policy and law to be addressed as Australia moves into the next
In April 2000, the Labor Party indicated its
'strong support' for the recommendation of the Australian
Citizenship Council to repeal section 17 of the Australian
Citizenship Act 1948.(13)
Media comment surrounding the current debate, as
in the mid-1990s, has been supportive of the repeal of section 17
of the Australian Citizenship Act 1948. One commentator
suggested in 1994 that 'whatever argument there may be against dual
nationality (and it is pretty flimsy), there can be no argument in
favour of a punitive law that applies to only one group of
commentator in 1997 described Australia as being seen by business
leaders overseas as 'out of step' with other countries, including
the United States, Canada, Britain and New
The Constitution places limitations on holders
of dual citizenship in section 44(i). That section provides for the
disqualification of a person from being chosen for sitting as a
Senator or Member of the House of Representatives if they are a
holder of dual citizenship. The Bill does not address this
particular issue, as obviously a referendum would be required to
make changes to the Constitution.
The matter of section 44 and dual citizenship
was addressed in 1997 by the House of Representatives Standing
Committee on Legal and Constitutional Affairs.(16) It
was also considered by the High Court in 1999 in the Heather
Loss of Citizenship by Acquisition of Foreign
Item 1 of Schedule
1 repeals section 17 of the Australian Citizenship Act
1948 with the effect that adult Australian citizens will not
lose their Australian citizenship on acquisition of another
Citizenship by Descent
Section 10B of the Australian Citizenship
Act 1948 deals with citizenship by descent. A person born
overseas to Australian parents may become an Australian citizen if
they are registered before their 18th birthday
Schedule 2, item
3 inserts new subsection 10B(1A)
in the Australian Citizenship Act 1948 to extend this
window of opportunity. A person may be registered until their
25th birthday. However, an adult may not be registered
unless the Minister is satisfied that they are of good
Service in Australian Reserve Forces
Subsection 13(1) of the Australian
Citizenship Act 1948 establishes various conditions for the
grant of Australian citizenship. Two key conditions are that the
person has been a permanent resident in Australia for a period or
periods amounting to 1 out of the last 2 years (paragraph 13(1)(d))
or 2 out of the last 5 years (paragraph 13(1)(e)). A person is
exempt from these conditions if they have completed at least 3
months' 'relevant defence service' (paragraph 13(3)(a)). This is
defined as service in the permanent forces, or national service
prior to 26 November 1964 (subsection 5(1)). Similarly, they are
exempt if they have been discharged from service within 3 months as
a result of a service related injury or incapacity (paragraph
Schedule 2, items 1 and
4 extend the service exemption to:
- persons who have completed a period or periods of service
amounting to 6 months' full-time service in the Australian reserve
forces (proposed paragraph 13(3A)(a)), and
- persons who have been discharged from full-time service in the
Australian reserve forces within 6 months as a result of a service
related injury or incapacity (provided they are discharged whilst
on full-time service) (proposed paragraph
Paragraph 13(4)(b)(iii) of the Australian
Citizenship Act 1948 provides that the Australian residence
requirement for citizenship may take account of residence in Papua
New Guinea prior to its independence (16 September 1975) or within
a subsequent window period of 3 years (ie prior to 16 September
Item 5 of Schedule
2 repeals this exemption as it is 'no longer
Item 6 provides for ministerial
discretion to allow parents to have their children joined in a
citizenship application (provided the children are under 16 years).
The children acquire citizenship automatically when the parents
Prohibitions on Grant of Citizenship
Subsection 13(11) provides that a person cannot
be granted citizenship if, among other things, he or she are on
trial or have been convicted and imprisoned in Australia. Nor can
he or she be granted citizenship while on bail or parole or for a
period of 2 years following his or her release from gaol.
Item 17 provides that serious
repeat offenders cannot be granted citizenship for 10 years. A
'serious repeat offender' is a person who has been imprisoned under
a sentence of 12 months or more and who has, since being released,
been subject to a second such sentence.
Under the Crimes Act 1914, an offence
for which a person has been imprisoned for less than 30 months is
'spent' after 10 years. (19)A 'spent conviction' is one
which a person generally cannot be required to disclose under
Commonwealth, State or Territory laws.(20) However,
there are exclusions. Significantly, a person can be required to
disclose information relating to a spent conviction for the
purposes of citizenship decisions.(21)
Effect of Prohibitions
Broadly, the grant of citizenship has two
procedural stages. An applicant must receive a certificate of
citizenship but they must also make a pledge of commitment before
the Minister, a judge or an authorised person. Either stage may
Item 20 inserts new
sections 14B and 14C which deal with
these two procedural stages.
First, the new subsections deal with the effect
of the prohibitions in subsection 13(11):
- if a certificate of citizenship has been granted, but a pledge
of commitment has not been made, and the application for
citizenship, if it had been a fresh application, would have to be
rejected under subsection 13(11), the Minister may revoke
the grant of the citizenship certificate (new section
14B), and, conversely, and
- if a pledge of commitment has been made but a certificate of
citizenship has not been granted, and the person has been or may be
charged with an offence in Australia, the Minister may
defer the grant of the citizenship certificate
(new section 14C).
Second, under new paragraph
14B(1)(c)(ii) the Minister may revoke a citizenship
certificate if the person has failed to make a pledge of commitment
within 12 months without an 'acceptable reason' (a list of which
will be prescribed in the regulations).
Third, under new paragraph
14C(1)(c)(i) the Minister may defer a citizenship
certificate if a visa held by the person 'may be cancelled'.
A deferral under new section
14C may not last for a period or periods that exceed 1
Deprivation of Citizenship
A person may lose citizenship by renunciation
(section 18 of the Australian Citizenship Act 1948) or by
doing something the purpose of which is to become a national or a
citizen of a foreign country (section 17). S/he may also lose
citizenship if, as a person with dual citizenship for example, the
person serves in the armed forces of a foreign power at war with
Australia (section 19). Under section 21 of the Australian
Citizenship Act 1948, if the person has obtained citizenship
by obtaining a certificate, and either:
- has been convicted of an offence under the Australian
Citizenship Act 1948 of making a false representation,
- has been convicted of an offence, committed before the grant of
the certificate, under domestic or foreign law for which s/he has
been sentenced to imprisonment for at least 12 months, or
- obtained the certificate as a result of 'migration-related
the Minister may deprive the person of their
citizenship if s/he is satisfied 'that it would be contrary to the
public interest for the person to continue to be an Australian
Section 21 of the Australian Citizenship Act
1948 has at least two areas of significance in the migration
Clearly, it is relevant in the context of
'migration-related fraud'. A person is deemed to have obtained a
certificate as a result of such fraud if s/he is convicted of an
offence against certain provisions of the Migration Act
1958 or Crimes Act 1914 for conduct before the grant
of the certificate that was connected with his or her entry into
Australia or the grant of a visa or permission to enter and remain
in Australia.(22) The conduct must have been directly or
indirectly material to the person becoming a permanent
However, it is also relevant in the context of
people smuggling. It is an offence under the Migration Act
1958 for a person to carry non-citizens to Australia without
documentation.(24) It is also an offence for a person to
organise or facilitate the bringing or coming to Australia of a
group of 5 or more persons where s/he knows they would become
illegal immigrants.(25) Similarly, it is an offence to
present false or forged documents, to make false or misleading
statements or to pass documents to help a group gain illegal entry
into Australia.(26) And it is an offence for a person to
make a false or misleading statement about his or her ability or
power to influence a decision or to make a false or misleading
statement about the effect of his or her actions on a particular
decision.(27) Finally, it is an offence to undertake for
a reward that a particular decision will be
Item 24 inserts a note to
section 21 of the Australian Citizenship Act 1948 to the
effect that persons convicted of people smuggling offences may be
deprived of citizenship.
Resumption of Citizenship
Section 23AA of the Australian Citizenship
Act 1948 deals with the resumption of citizenship. Citizenship
can be resumed in various circumstances, one of which is where a
person, either inadvertently or acting under duress, did any act or
thing the purpose and effect of which was to end their Australian
citizenship. The person must furnish an explanation to the Minister
which describes these circumstances and statements to the effect
that the person has satisfied a 2 year residence requirement, that
he or she will return or remain as a resident and that he or she
has a close and continuing association with Australia. The Minister
must be satisfied that the statements are true and that any duress,
if economic, was reasonably significant.
Item 26 inserts an additional
requirement that the Minister must be satisfied that the person is
of good character.
Item 27 inserts new
section 23AB which will deal with resumption of
citizenship lost by renunciation. A person may resume citizenship
by providing an explanation similar to the explanation under
section 23AA of the Australian Citizenship Act 1948. The
key differences are that citizenship may only be resumed by a
person under 25 years who, acting under duress, renounced his or
her citizenship in order to retain citizenship or nationality of a
Section 23 of the Australian Citizenship Act
1948 provides that children of persons who lose or are
deprived of citizenship are also generally deprived of citizenship.
A child of a person who is deprived of citizenship under section 21
of the Australian Citizenship Act 1948 (offences including
migration fraud and people smuggling offences) may also be deprived
of citizenship subject to ministerial discretion.
Section 23B of the Australian Citizenship
Act 1948 provides that a person who is deprived of citizenship
in these circumstances may apply to resume citizenship, subject to
a special circumstances ministerial discretion.
Item 28 inserts a requirement
that the Minister must be satisfied that the person is of good
character (new subsection 23B(2)).
A question which has frequently been asked in
relation to this Bill is:
"If someone today took out British citizenship,
thus losing Australian citizenship under section 17 of the
Australian Citizenship Act 1948, would the passing of the
Australian Citizenship Legislation Amendment Bill 2001 act
retrospectively so as to restore the lost citizenship?"
It is the opinion of the author that the passage
of the Australian Citizenship Legislation Amendment Bill 2002 will
not act retrospectively so as to restore lost citizenship and
Australian citizenship will only be able to be resumed in the
various circumstances provided for in the Australian
Citizenship Act 1948.
Currently section 17 of the Australian
Citizenship Act 1948 provides that, except in relation to 'an
act of marriage' a person who does 'any act or thing (a) the sole
or dominant purpose of which; and (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'.
In practice this means if an Australian citizen
applies to become a citizen of another country, the act of making
that application will, once approved, lead to the loss of
As to 'affected Australians' being awarded back
their nationality, existing section 23AA already allows citizenship
to be resumed in various circumstances.
Generally resumption can only occur under
section 23AA if the person did not know that the act through which
they lost their citizenship would have that effect (ie they were
ignorant or mistaken as to the effect of existing section 17) or
where they acted under duress. There appears to be no provision for
resumption if they took the act voluntarily and in full knowledge
of its consequences.
Resumption of citizenship must be approved by
the relevant Commonwealth Minister - the person must provide
details surrounding the loss of citizenship and statements to the
effect that the person has satisfied a 2 year residence
requirement, that he or she will return or remain as a resident and
that he or she has a close and continuing association with
- This estimate was based on surveys undertaken by the Department
of Immigration and Multicultural Affairs in late 1999, that there
are approximately 4.4 Australians who have dual citizenship:
Australian Citizenship for a New Century, Commonwealth of
- Australian Citizenship Council, Australian Citizenship for
a New Century, Commonwealth of Australia, 2000, p.60.
- Adrienne Millbank, 'Dual Citizenship in Australia',
Current Issues Brief
No. 5, 2000-01.
- Ibid, p.ii.
- Joint Department of Foreign Affairs and Defence, Dual
Nationality, Parliamentary Paper No. 255/1976.
- Joint Standing Committee on Migration, Australians All:
Enhancing Australian Citizenship tabled 12 October 1994.
- Australian Citizenship Council, Australian Citizenship for
a New Century, Commonwealth of Australia, 2000, Recommendation
- Commonwealth of Australia, Australian Citizenship A Common
Bond, Government Response to the Report of the Australian
Citizenship Council, May 2001, 28 pp.
- Ibid at p.24.
- Government response to the report by the Joint Standing
Committee on Migration: 'Australians All-Enhancing Australian
Citizenship', The Ties that Bind, tabled 5 September 1995.
- Minister for Immigration and Multicultural Affairs, Hon. Philip
Ruddock, 'Australian Citizenship Council Announced', Media
Release No. 104/98.
- Hon. Con Sciacca, 'Labor Gives Green Light to Dual
Citizenship', Media Release, 11 April 2000.
- Robin Fitzsimons, 'New Citizenship Law is Unfair', Sydney
Morning Herald, 27 January 1994.
- Karen Middleton, 'Minister Shelves Nationality Push', The
Age, 14 March 1997.
- House of Representatives Standing Committee on Legal and
Constitutional Affairs, Aspects of Section 44 of the Australian
Constitution, tabled July 1997.
- Sue v Hill & Anor. (1999) 163 ALR 648. See also Sykes v
Cleary (1992) 176 CLR 77 in which the High Court found two
candidates in the Wills by-election ineligible under s.44(i).
- Explanatory Memorandum, p. 8.
- Section 85ZM.
- Section 85ZV.
- Subsection 85ZZH(d).
- Subsection 21(1A).
- Subsection 21(1B).
- Section 229.
- Section 232A.
- Section 233A. Also ss 22, 23 and 234.
- Section 334.
- Section 335.
18 February 2002
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