Bills Digest No. 74 2001-02
Australian Citizenship Legislation Amendment Bill 2001
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
Contact Officer & Copyright Details
Australian Citizenship Legislation
Amendment Bill 2001
Date Introduced: 23 August 2001
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: Schedule 1 commences on Royal
Assent, Schedule 2 on Proclamation or six months after Royal
The Bill proposes to:
- repeal section 17 of the Citizenship Act with the effect that
adult Australian citizens do not lose their Australian citizenship
on acquisition of another citizenship;
- 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 Citizenship Act which provides for
the deprivation of Australian citizenship in certain
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, 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, 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, 'so that Australian
citizens over the age of 18 do not lose their Australian
Citizenship on acquisition of another
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 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.(13)
Media comment surrounding the current debate, as
in the mid-1990s, has been supportive of the repeal of section 17
of the Citizenship Act. 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 Australians (the-quite
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 Nationality
Schedule 1 repeals section 17.
Thus, actions alone cannot result in a loss of citizenship.
Section 10B 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 (subsection 10B(1)(a)).
Schedule 2, item
3 inserts new subsection 10B(1A)
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
Subsection 13(1) 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
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))
- 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) 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 1978).
Item 5 repeals this exemption
as it is 'no longer used'.(18)
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
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)
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
- 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
A person may lose citizenship by renunciation
(section 18) 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,
if the person has obtained citizenship by obtaining a certificate,
- has been convicted of an offence under the Citizenship Act 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 has at least two areas of
significance in the migration context.
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 to the effect that persons convicted of people smuggling
offences may be deprived of citizenship.
Section 23AA 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
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. 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 foreign country.
Section 23 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 (offences including migration fraud and people
smuggling offences) may also be deprived of citizenship subject to
Section 23B provides that a person who is
deprived of citizenship in these circumstances may apply to resume
citizenship, subject to a special circumstances ministerial
Item 28 inserts a requirement
that the Minister must be satisfied that the person is of good
character (new subsection 23B(2)).
- This estimate was based on surveys undertaken by the Department
of Immigration and Multicultural Affairs in late 1999, that there
are approximately 4.4 million Australians who have dual
citizenship: Australian Citizenship for a New Century,
Commonwealth of Australia, 2000.
- 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,
- 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
- 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.
Nathan Hancock and James Prest
26 September 2001
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