Chapter Five - The legal concerns of overseas Australians
This chapter examines the key legal concerns of
overseas Australians in the areas of citizenship and voting.
One of the most substantial issues raised during the
Committee's inquiry was the loss of Australian citizenship, or potential to
claim Australian citizenship, under provisions of the Australian Citizenship Act 1948 (Citizenship Act). In particular,
the Committee received many submissions from people who wanted to resume
Australian citizenship, but had been unable to do so.
The first part of this chapter therefore considers some
of the key issues relating to Australian citizenship, including:
- background and history of Australian citizenship
- dual citizenship: the repeal of section 17 of
the Citizenship Act and its consequences;
- dual citizenship: renunciation of citizenship
under section 18 of the Citizenship Act;
- other specific citizenship issues; and
- information and education relating to
The Committee acknowledges that, on 7 July 2004, the
Hon. Gary Hardgrave MP, the then Minister for Citizenship and Multicultural
Affairs (the Minister) announced several proposed changes to the Citizenship
Act and released a fact sheet
outlining the proposed changes. A
representative from DIMIA stated that it was hoped the proposed changes would
be incorporated in legislation to be introduced into Parliament in 2005. These proposed changes will be
considered where relevant below, particularly as they may resolve some of the
specific issues raised in submissions and evidence to the Committee.
Background and history of
At Federation in 1901, 'Australian citizenship' as a
legal status did not exist. There is no mention of citizenship in the
Australian Constitution. Rather, Australia's
population comprised British subjects who were permanently residing in Australia,
British subjects temporarily in Australia,
and 'aliens'. The legal status of
Australian 'citizen' came into effect on 26 January 1949 under the Nationality and Citizenship Act 1948. The title of this Act changed
in 1973 to the Australian Citizenship Act
What is citizenship?
The Preamble to the
Citizenship Act states:
Australian citizenship represents 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; and
Persons granted Australian citizenship enjoy these rights and
undertake to accept these obligations
by pledging loyalty to Australia
and its people, and
by sharing their democratic beliefs,
by respecting their rights and
by upholding and obeying the laws of Australia
Privileges and responsibilities of
Australian citizenship carries with it a number of
privileges and responsibilities. For example, Australian citizenship confers
the right to:
- stand for public office or nominate for election
to Commonwealth, state or territory parliaments (subject to section 44(i) of
- apply for an Australian passport and leave and
re-enter the country without a visa;
- seek consular assistance from Australia's
diplomatic representatives while overseas;
- apply for permanent employment in the Australian
Public Service or enlist in the armed forces; and
- register children born overseas as Australian
citizens by descent in certain circumstances.
In return, Australian citizens are required to:
- obey the laws and fulfil their duties as an
- enrol on the Electoral Register and vote at federal,
state and territory elections and referenda;
- serve on a jury, if called on; and
- defend Australia, should the need arise.
These rights and responsibilities are subject to
certain conditions and exemptions. For example, there are restrictions on
enrolment and voting rights, which will be discussed later in this chapter. The
Committee also notes that, for Australian citizens living overseas permanently,
the extent to which those citizens can fulfil some of these responsibilities
could be questioned.
How is Australian citizenship
Under the Citizenship Act, a person can become an
Australian citizen in several ways, including by:
- birth (if at the time of the person's birth in
Australia, at least one parent is an Australian citizen or an Australian
- descent (in certain circumstances, including if
a parent is an Australian citizen and registers the child's name at an Australian
consulate within 18 years of the birth);
- adoption, if adopted by an Australian citizen; or
- grant of citizenship.
There are also provisions in the Citizenship Act which
provide for resumption of citizenship in certain circumstances. Where relevant, these provisions
will be discussed further below.
How is Australian citizenship lost?
Australian citizenship can be lost in several ways
under the Citizenship Act, including by:
- serving in the armed forces of a country at war
- deprivation – for example, where a person is
convicted of migration fraud related to the grant of Australian citizenship; or
- renunciation – a person may renounce Australian
citizenship if they are 18 years or older and the holder of citizenship of
A child may also lose his or her Australian citizenship
under section 23 of the Citizenship Act, if that child's responsible parent
loses or renounces their citizenship.
Before 2002, Australian citizenship could also be lost
by 'any act or thing, the sole or dominant purpose of which and the effect of
which is to acquire the nationality or Citizenship of a foreign country'. This
was under the now-repealed section 17 of the Citizenship Act, which will be
considered further below.
Dual citizenship: the repeal of
Section 17 was the subject of debate and review for many
years prior to its repeal. In 1994, the Joint Standing Committee on Migration
recommended that section 17 should be repealed, and that former Australian citizens
who had lost citizenship should have the unqualified right to apply for the resumption
of their Australian citizenship. In
1995, the Federal Government released policy guidelines to make the
requirements for resumption of citizenship lost under section 17 clearer and
In August 1998, the Australian Citizenship Council (ACC)
was established by the then Minister for Immigration and Multicultural Affairs to
advise on issues relating to Australian citizenship policy and law. In February 2000, the ACC published
a report titled Australian Citizenship
for a New Century.
In its report, among other matters, the ACC examined
section 17 of the Citizenship Act and considered whether Australian citizens
should lose their citizenship on applying for and receiving citizenship of
another country. The ACC received some submissions which argued that
'acquisition of another citizenship represented disloyalty to Australia'. However, the majority of submissions
received by the ACC were in favour of repealing section 17, arguing that
acquiring citizenship of another country 'in no way diminishes' a person's
commitment to Australia. The ACC also noted that many other
countries allow their citizens to obtain another citizenship without losing
their original citizenship. The
ACC concluded that:
... to hold and enforce the threat of loss of Australian
Citizenship over Australians who wish to live and work overseas in countries
where acquisition of another Citizenship is important to their situation is to
place a completely unnecessary obstacle in the way of expansion of Australian
presence in other societies. The Council does not believe this to be a
desirable position for Australia
to place its Citizens. And equally important, it does not believe that to do so
is in Australia's
One of the ACC's key recommendations was therefore to
repeal section 17 of the Citizenship Act so that Australian citizens would not
lose their Australian citizenship on acquisition of citizenship of another
country. The ACC also found that
'existing resumption provisions are adequate for those who have already lost
Australian Citizenship under section 17'.
As a result of the ACC's recommendations, and those of many others, including
the SCG, the Citizenship Act was substantially amended in 2002. In particular,
section 17 of the Citizenship Act was repealed.
Several submissions to this inquiry supported the full
recognition of dual citizenship and the repeal of section 17. However, many submissions argued the
repeal of section 17 had left some 'residual' issues. In particular, these submissions were
concerned that numerous Australian citizens 'unknowingly' lost their Australian
citizenship under this provision while it was in force, and had subsequently
been unable to resume that citizenship.
For instance Ms Camille
Hughes, who lost her citizenship under
section 17, commented:
I am deeply saddened that my children and I no longer hold
Australian citizenship and sincerely hope the Australian government sees fit to
allow us to again become Australian citizens. It seems to me that far more
inclusive citizenship law and policy ... is a logical and necessary prerequisite
to fully embracing the phenomenon that is the Australian diaspora. In fact it
is crucial if indeed our great country is ever to reach a full understanding,
as a nation, that those of us who are physically outside Australia's
territorial boundaries are still an integral part of Australia.
Some submissions suggested that the repeal of section
17 should be made retrospective – that is, all those who lost their Australian
citizenship under section 17 in the past should automatically have that
However, a representative of DIMIA expressed concern
about this proposal:
... there could be some problems for people, given that some
people may well have knowingly acquired another citizenship, knowing that they
would lose their Australian citizenship. For example, there are some people who
took out citizenship of another country for employment purposes and that
employment, because of its security nature, required them to have only the citizenship
of that country. So retrospective repeal of section 17 could have had an
adverse impact on people in those circumstances.
The Committee notes that the Minister made a similar
statement in a recent speech:
Repeal of Section 17 was not retrospective because we could not
guarantee that there would not be unintended consequences for Australians who
had lost their Australian citizenship under Section 17 prior to April 2002.
Restrictions on resuming
citizenship lost under section 17
The Committee received several submissions from people
who had lost their Australian citizenship under section 17, but had been unable
to reacquire that citizenship because of the restrictions in the Citizenship
Section 23AA of the Citizenship Act allows an adult who
has lost their citizenship (under section 17) to apply to the Minister for the
resumption of that citizenship. However, to be eligible to resume citizenship,
that person must meet certain criteria, including that the person:
- did not know that they would lose Australian
- would have suffered significant hardship or
detriment if they had not acquired citizenship of another country;
- has been lawfully resident in Australia for a
total of at least two years;
- states that they intend to continue to reside in
Australia, or intend to commence residing in Australia within three years; and
- has maintained a close and continuing
association with Australia.
Many submissions criticised the requirement to declare
an intention to commence residing in Australia
within three years of the application.
The MidAtlantic Australian New Zealand Chamber of Commerce submitted that:
Persons who lost their citizenship under the provisions of
Section 17 are not automatically reinstated to full citizenship and furthermore
they are only able to regain their citizenship if they swear that they will
return to Australia
within three years. Most are not able to
make that declaration.
One submitter affected by the three year requirement, Mr
It came as quite a shock to me when I had discovered that my
Australian Citizenship had been taken away... I reapplied to regain my
citizenship. It took approximately 8 months to eventually be rejected as I was
unable to state that I would resume residence within three years – I was too
honest – had I declared my intent to reside within 3 years I wonder if the
outcome would have been different? ... My Australian citizenship was precious to
me and I truly and sincerely want it back!
Similarly, Ms Camille
I would dearly love to resume my lost Australian citizenship ...
But it is not legally possible at the moment due to the ... requirement that I
make a declaration that I have an intention to commence residing in Australia
within three years of the day of the resumption application. At present, our
lives are firmly in the US.
I could not in good faith make such a declaration.
The SCG alleged that some former citizens were being
advised to declare an intention to return to Australia
within three years regardless of whether they actually have that intention:
... anecdotal reports suggest that some staff dealing with former
citizens at a number of Australian missions overseas may be advising people "off the record" to simply tick the "Yes" box in Question
13 of DIMIA Form 132 regardless of what their future plans may be. 
The SCG continued:
It seems very clear that the issue of intention to return to
Australian within three years is to some extent being administered "flexibly" by decision makers to circumvent the barrier it presents.
The need for "flexibility" in itself is evidence that the three-year
requirement is a hindrance to resumption for many former Australian citizens
The SCG further argued that the three year requirement
is 'no longer appropriate' since the repeal of section 17:
now allows dual citizenship for all categories of Australians. A person who has
no intention to move back to Australia
within three years and who had the good fortune to acquire a second citizenship
on or after 4 April 2002
would today be a dual citizen. On the other hand, a person who acquired another
citizenship on 3 April 2002
or earlier and who cannot in good faith make such a statement of intention is
precluded from formal membership of the Australian family and also prevented
from enjoying the benefits of dual citizenship. It is time to recognise that
this provision is a discriminatory remnant of the Section 17 era and no longer
appropriate for Australia
The SCG also believed that 'it is very possible for an
individual to remain extremely committed to Australia
without living within its territorial boundaries'. Similarly, Ms Lorraine Buckland
... it rankles in principle that former Australians who are based
permanently overseas should, under the letter of the law, be judged unworthy of
regaining their lost citizenship if they are not going to live in Australia
again in the foreseeable future. To have this requirement in our law transmits
a message that Australia
only wants those who are going to "commit" to it by living within its
territorial boundaries. By definition that stance sends a very alienating
message that those of us overseas are not valued and might be simply discarded
The SCG also expressed a view that the requirement to
have been present in Australia
for a total period of at least two years was another inappropriate barrier to
the resumption of citizenship lost under section 17.
The SCG also observed inconsistencies when compared
with other resumption provisions in the Citizenship Act. The SCG pointed out
that section 23B, which provides for resumption of citizenship lost by minors (under
section 23), contains no two year residency requirement.
During the Committee's inquiry, the Minister announced
a number of proposed changes to the Citizenship Act. If they are passed by Parliament,
these proposals will remove many of the restrictions on resuming citizenship.
In relation to resumption of citizenship lost under section 17, amendments
would be introduced to provide that:
The only criterion for resumption of Australian citizenship by
people who lost their Australian citizenship when they acquired another
country's citizenship will be that the person be of good character.
These changes were welcomed by the SCG, which commented:
Without a doubt, many in the Diaspora will be able to resume
their lost citizenship ... A number of messages have been received by the SCG
from around the world in response from individuals who are extremely pleased
that they will be able to be Australian citizens within the foreseeable future.
The Committee acknowledges that the proposed changes to
the Citizenship Act appear to resolve many of the concerns raised in
submissions relating to the resumption of citizenship lost under the former
Children of former Australian
A further issue raised in some submissions related to
the children of former Australian citizens who lost their citizenship under
section 17. For example, in
relation to children who were born after
a parent had lost Australian citizenship under section 17, the MidAtlantic
Australian New Zealand Chamber of Commerce was concerned that:
Children born to Australians while they had lost their
citizenship cannot be registered as “Australians by Descent” even when their
Australian parent or parents have regained their Australian citizenship.
A representative from DIMIA acknowledged this issue,
and explained to the Committee that it was being addressed:
Some of the representations to the Minister ... highlighted the
plight of children born to former Australian citizens who had unwittingly lost
their citizenship under section 17. These children were therefore unable to
register as Australian citizens by descent. A solution for children born to
former citizens and still under 18 years of age was possible through the
introduction of a change in policy, and this was announced in October 2003. One
of the proposed changes to the [A]ct will provide for the grant of citizenship
to people over the age of 18 years who are of good character and were born to
Similarly, the fact sheet released by the Minister
The Act will be amended to provide for grant of citizenship to a
person of good character and over the age of 18 years who was born overseas
after their parent lost citizenship under the former section 17.
While the proposed changes to the Citizenship Act would
clearly cover children born after a
parent had lost Australian citizenship under section 17, the Committee received
evidence of concerns that the situation of children before their parents lost citizenship under section 17 was unclear. The SCG pointed out that, under
section 23 of the Citizenship Act, many children had automatically lost their
Australian citizenship when their responsible parent forfeited their
citizenship under section 17.
The SCG observed that section 23B of the Citizenship Act may provide for the
resumption of citizenship in this situation, but that 'section 23B presents its
own limitations as a resumption provision'.
Under section 23B, a person who has ceased to be an
Australian citizen under section 23 of the Citizenship Act can apply to resume
Australian citizenship within one year after attaining the age of 18 years. The SCG argued that:
The key limitation within Section 23B is the requirement that
the applicant for resumption is required to apply "within one year after
attaining the age of 18 years or within such further period as the Minister, in
special circumstances, allows".
For example, one submitter explained that her two
children were Australian citizens by descent, but that:
... they automatically forfeited their Australian citizenship ...
when I took US
citizenship ... while Australian law remains as it is, my children cannot resume
their lost citizenship until they reach their 18th birthday.
also observed that 'it is unclear why the minor children of these individuals
should be limited in time as adults from resuming their citizenship'. The SCG further commented that:
The SCG has been contacted by a number of individuals who have
lost their citizenship as minors under Section 23, but who have missed the one
year window of opportunity for resumption under Section 23B, i.e. they are
already aged 19 or older. In these
circumstances, it is necessary to look at whether it is advisable for the
person to make a Section 23B resumption application outside the one-year
window, arguing that "special circumstances" exist. A number of cases
in the AAT [Administrative Appeals Tribunal] over the last several years indicate
that it is very difficult to show "special circumstances" such that a
late Section 23B resumption application will be accepted.
The SCG concluded:
A close reading of the Minister's media release and speech of 7 July 2004 does not provide a clear
answer as to whether the Government is now planning to amend Section 23B and
specifically provide a simple resumption route for these individuals who lost
as minors under Section 23.
The SCG even suggested that section 23, under which a
child automatically loses citizenship if their responsible parent loses
citizenship, should be repealed, because '... it is unfair to deprive minor
children of their citizenship involuntarily due to a parent's loss.'
The Committee's view
The Committee welcomes the proposed changes to make it
easier to resume citizenship lost under section 17 of the Citizenship Act.
However, the Committee considers that efforts should be made to ensure that all children of citizens who lost their
Australian citizenship under section 17 can register for Australian citizenship
without unnecessary limitations. In particular, these children should be eligible
for citizenship regardless of whether they were born before or after their
parent's loss of citizenship.
Dual citizenship: renunciation of
citizenship under section 18
Another major citizenship issue raised during the
inquiry related to people who had renounced
their citizenship under section 18 of the Citizenship Act. Indeed, the
Committee received over 200 submissions from Maltese individuals or groups.
These submissions addressed the issue facing a large number of Australian-born
Maltese citizens who had renounced their Australian citizenship under section
18, and had been unable to resume that citizenship.
According to these submissions, many Maltese migrated
to Australia in
the period following World War II and had children in Australia.
Under citizenship laws of the time, these children became Australian citizens
by birth, and Maltese citizens by descent.
Some of these children subsequently returned to live in Malta
with their parents. Until the year
2000, the Maltese Government required persons, when they reached 18, to choose
whether to retain or renounce any foreign citizenship they possessed. If they failed to renounce their
foreign citizenship by their 19th birthday, they automatically lost Maltese
citizenship. This meant they would
also lose access to many benefits in Malta
including free education; the possibility of employment in the public service;
subsidised housing; and access to social security benefits. For financial and practical reasons,
many of these people renounced their Australian citizenship. In fact, almost
2000 Maltese people born in Australia
are recorded as having renounced their Australian citizenship.
As noted above, the Committee received a large number
of similar submissions from Maltese citizens born in Australia
who had found themselves in this situation and who shared their personal
circumstances with the Committee. It is not possible to detail them all here, but
just one example is the submission from Ms
Ann Marie Galea,
who stated that:
I was born in Wentworthville in Australia
on the 24th July 1971.
My father and mother migrated to Australia
from Malta in
1964 ... When I was only 5 years ... in 1976 my family moved back to Malta.
Under Maltese citizenship law I was required to decide between Maltese and
Australian citizenship between my 18th and 19th birthdays
... In the circumstances, opting for the Maltese citizenship was essentially to
continue with my studies free of charge, and allowing me to purchase my
property. I was extremely unhappy forfeiting my Australian citizenship as I was
born in Australia
and I consider myself as an 'Australian'. I still maintain close ties with Australia.
In 2000, the Maltese Government 'accepted the concept
of dual citizenship and no longer requires the renunciation of Australian
citizenship before the age of 19 years in order to keep the Maltese
citizenship'. However, the
Committee heard that many Maltese people who renounced their Australian
citizenship have faced considerable barriers to regaining Australian
citizenship under the current provisions of the Citizenship Act.
Submissions observed that these Maltese citizens had
been unable to resume citizenship under section 23AA of the Citizenship Act.
This was because they were deemed to have retained
their right to Maltese citizenship rather than having acquired a foreign citizenship.
Several submissions suggested that this was discriminatory when compared with
people who had lost their citizenship under section 17. For example, the Malta Cross Group
pointed out that:
91% of Australian-born citizens who 'acquired' foreign
citizenship have been successful in resuming their Australian Citizenship under
Section 23AA, yet not one Maltese (who renounced), having applied under the
same Section, has ever been accepted to resume their Australian birth-right,
despite having the same compelling reasons required under this section ...
The Malta Cross Group continued:
So here you have the anomalous situation whereby the rights of
Australian-born citizens are split into two categories, one group whose
application to resume is accepted and the other group whose application is
rejected. It is indeed even more anomalous when you think that those
Australian-born Citizens, undoubtedly of a more mature age, who freely chose to ‘acquire’ the citizenship of another country can apply to resume their
birth-right under Section 23AA but those Maltese who had no choice, cannot!
Several submissions highlighted that many of these
Australian-born Maltese are also unable to resume Australian citizenship under
section 23AB of the Citizenship Act, because that section contains an age limit
of 25 years. These submissions pointed out that many affected Maltese are now
older than 25 years, and have therefore exceeded this limit. As the Malta Cross Group remarked:
From within a single family you now find siblings who are both
under and over the imposed age limit. This means that some are eligible to
return to Australia
while others are not. This discriminatory amendment gives rise to family
isolation, discord and splits family unity.
Submissions also noted that the requirement to state an
intention to return to Australia
to live within three years is a further barrier to resuming citizenship
renounced under section 18.
However, the proposed changes to the Citizenship Act,
announced during the Committee's inquiry, would amend the resumption provisions
for citizenship renounced under section 18. The Minister's fact sheet states:
Former Australian citizens who renounced their Australian
citizenship to acquire or retain another citizenship, or renounced to avoid
significant hardship or disadvantage will also be given the opportunity to
resume their Australian citizenship, if they are of good character.
Once again, the SCG welcomed these proposed changes. At
the same time, there were concerns that the proposed changes would not include
the children born to individuals after they renounced their Australian
citizenship under section 18 of the Citizenship Act. For example, Ms
from the SCG argued:
... the minister's proposed changes do not currently include the
children born to individuals after they were forced to renounce their
Australian citizenship using section 18 of the Australian Citizenship Act ...
This group, of course, encompasses the children of all those Australian born
individuals, almost 2,000 people, who had to renounce their citizenship in Malta
as teenagers ... 
We submit that the situation of those children is no different,
practically speaking, from the children born to section 17 victims after their
loss of citizenship. We see it as being very important that this inquiry
recommend that the announced changes be extended to include the children of
section 18 victims born after their parents' loss of citizenship.
The Committee queried whether there was any plan for
such children to be covered by the proposed amendments. Representatives from
DIMIA responded that 'it is an issue that will be considered' and that 'there may well be further
changes down the track, but that is the minister's prerogative'.
The Committee's view
The Committee considers that notions of Australian
citizenship should be more inclusive. The Committee welcomes the proposed
changes to make it easier to resume citizenship renounced under section 18 of
the Citizenship Act. However, the Committee agrees that children of people who
renounced their citizenship under section 18 should also be eligible for Australian
Other citizenship issues
Other specific citizenship issues that were raised with
the Committee will be considered briefly below. These include:
- restrictions on dual citizenship in other
- children born overseas before 1949 to Australian
- former child migrants; and
- other issues.
Restrictions on dual citizenship in
While both Malta
now allow for dual citizenship in all circumstances, some submissions pointed
out that a number of other countries do not allow for dual citizenship. As a
result, some Australian citizens may still be required to renounce their
Australian citizenship under section 18. The SCG submitted that:
... in some countries where Australians live and seek to be
naturalised, local law may still require the formal renunciation of Australian
citizenship under Section 18 of the Australian
Citizenship Act 1948. Failure to produce evidence of a Section 18
renunciation as part of a naturalisation application in particular countries
prevents Australian citizens in those countries from becoming dual citizens.
The SCG noted Germany
and Denmark as
examples of countries which restrict dual citizenship. The Committee also heard from
Australians living in countries which restrict dual citizenship. For example, Dr
I'm very glad that Australia
now accepts dual citizenship. However, Norway
doesn't, and giving up my Australian citizenship to become a Norwegian citizen
would be a very difficult decision. It would feel like giving up my identity.
Similarly, Ms Jane
Kristensen, who lives in Denmark,
Once I acquire my resident visa here, it is valid for 7 years ...
After the 7 years, one is requested to apply for citizenship and upon doing so
means to forsake your own citizenship. I would have to become a Danish citizen
to live here indefinitely and forgo my Australian citizenship.
The SCG observed that:
Citizens of countries with no citizenship renunciation
provisions are placed in a much more favourable position when applying for
naturalisation in countries such as Denmark
and Germany. As
formal renunciation of their original citizenship is simply legally impossible
under the law of their country of original citizenship, they are often able to
become dual citizens.
For this reason, the SCG suggested that 'it is time to
review the current relevance of Section 18'.
The Committee agrees that a review of section 18 of the Citizenship Act should
Children born overseas before 1949
to Australian mothers
Another specific citizenship issue raised during the
inquiry was the five year limit (1991-1996) for registration of citizenship by
descent by children born overseas before 1949 to Australian citizen mothers.
The Committee received submissions from two individuals directly affected by
this issue. However, the Committee
notes that the changes proposed by the Minister would provide for Australian
citizenship by descent for people born overseas before 26 January 1949, to a mother who became an
Australian citizen on commencement of the Citizenship Act (on 26 January 1949).
Former child migrants
The Committee also received submissions from some
individuals who could be described as 'former British child migrants'. These individuals had migrated to Australia
as children from the UK
(or another Commonwealth country), lived in Australia
for some time, but subsequently moved overseas. In terms of their legal status,
these people were permanent residents in Australia,
and were entitled to apply for Australian citizenship while they were living in
did not do so. In some cases, since they were 'British subjects', these
individuals thought they were Australian citizens when they left Australia. However, on living overseas for
several years, they lost their permanent residence status, and were no longer
able to apply for Australian citizenship. In their submissions, these
individuals expressed a desire to gain Australian citizenship. For example, Mr
... I had never taken Australian citizenship because I had always
thought that it didn't matter and being a British citizen was "the same
thing" ... I was a child immigrant to Australia
and had no idea of the immigration rules when I left. If I had known, I would
have taken Australian citizenship before I felt. I certainly consider myself
Australian as I remember very little of England.
Mr Michael Young, who was in a similar situation,
suggested that people in these circumstances should be able to obtain
citizenship – subject to certain conditions, such as a minimum period of
residence, and having maintained close connections with Australia.
The SCG was concerned that the proposed changes to the
Citizenship Act would not assist these former British child migrants and
suggested that these individuals should be 'allowed to rejoin the Australian
family'. The SCG suggested that
these people should be able to apply for Australian citizenship subject to
being able to show good character, maintaining close and continuing ties with Australia.
The SCG also proposed that:
... a full examination should be undertaken as to the other
limitations which might appropriately be imposed on any citizenship by grant
concession for such cases, at the same time taking care not to arbitrarily
exclude groups of individuals due to legislation deadlines for application or
The SCG further acknowledged that 'this issue is a
highly complex one, which deserves further study'.
The SCG also raised a number of other circumstances
which it was concerned may not be resolved by the proposed changes to the
Citizenship Act. However, the
Committee received little other evidence on these issues, and it was thus
difficult to ascertain how many people were affected by these particular
Another concern raised by the SCG related to delays, of
six months or longer, in processing resumption applications. The SCG suggested
that a time limit of three months or less should be set for processing all
resumption applications from the date of lodgement.
Information and awareness relating
The role of government in providing information to
expatriates has been considered in Chapter 4. Some submissions suggested that
the information and services available to Australian expatriates specifically in
relation to citizenship issues could be substantially improved. For instance, one submitter related
that they had received misleading information in relation to citizenship:
Until recently I was under the impression that if, in order to
facilitate my career prospects I became a US
citizen, I would lose my Australian citizenship. This misconception was
reinforced by information I received from the Australian Consulate in Chicago
when I applied for a new Australian passport in October 2003. At the time I was
told that if as an adult I took up citizenship in another country, I would lose
my Australian citizenship ... Luckily I've since discovered that this is no
longer the case ... The Australian government should ensure that all of its
representative arms are providing the correct information to Australians
Similarly, the SCG noted that it:
... receives many anecdotal reports of encounters on citizenship
matters at Australian missions around the world from those in Diaspora ... Many
report that the information they have received either on the telephone or in
person was unclear, confusing, or insufficient. In some very unfortunate
instances, individuals have relied on incorrect or unclear advice obtained from
a mission and subsequently taken steps which it later emerges were to their
significant legal detriment.
The SCG offered several suggestions for improving the
information made available to Australian expatriates. These suggestions
- enhancing and improving the DIMIA citizenship
website to include more detailed and specific advice in relation to citizenship
issues for Australian expatriates;
- using an internationally accessible phone number
for the Citizen Information Line; and
- improving citizenship advice and services at
overseas missions, and in particular that DIMIA conduct regular training for
staff in overseas missions to enable to them to handle queries about
citizenship from expatriates.
In response to the Committee's questions on this issue,
a representative from DIMIA acknowledged its responsibility to keep expatriates
informed in relation to changes to citizenship legislation:
We clearly accept responsibility for citizenship issues ... we
certainly enhance the web site on a regular basis. It is something we will
increasingly focus on because it is the most efficient way for mass
communications on a global basis. We could have done it better in the past, and
we will endeavour to do it better in the future.
However, the representative from DIMIA also argued:
At the end of the day, the onus is on the person who is taking a
life decision to fully inform themselves from available sources as to the
consequences of their potential decision.
The Committee agrees that greater efforts could be made
to improve the information available in relation to citizenship to overseas
Australians. As suggested by the SCG, these improvements could be made to
information available through a number of different mediums, including online
information, telephone services and at Australian consular missions. In particular,
a web portal designed specifically for expatriates, as discussed in Chapter 4,
could provide citizenship information relevant to expatriates.
The issue ... of whether citizens who
reside abroad should be allowed to vote, under what conditions and for how
long, is a perplexing one which raises deep questions about the meaning of
democracy in a world environment in which people are becoming increasingly
Another legal concern of overseas Australians raised
during the Committee's inquiry related to enrolment and voting in Australian
elections. Key issues which will be discussed further below include:
- low voter turnouts for Australians living
- current requirements under the Commonwealth Electoral Act 1918 (Commonwealth Electoral Act);
- whether voting and enrolment provisions should
be extended for Australians overseas; and
- education and information available about
enrolment and voting for overseas Australians.
Statistics on overseas voters
Several submissions noted with concern the low levels
of expatriate Australians voting in federal elections. During the 2001 federal election,
63,036 sets of ballot papers were issued at overseas posts. However, it appears that most of
these overseas votes were cast by Australians on short-term travel. On 15 October 2001, there were 10,636
Eligible Overseas Electors registered on the electoral roll. However, the Australian Electoral
Commission (AEC) reported that only 5,822 (54.7 per cent) of these voted at the
2001 federal election.
Williams suggested the low
number stemmed from two main causes:
We think that very small number—5,822—reflects the lack of
information provided to expat Australians and also the great difficulty in
navigating your way through a very complex legal regime that has not been
subject at any point in its history to a thoughtful and detailed policy
analysis as to what the objects are and where the balances should lie.
The SCG also expressed concern that many Australians
... disenfranchised and have no possibility at the moment under
the law as it stands to get themselves back on the electoral roll.
The SCG submitted that, in their estimates, up to
500,000 overseas Australians are prevented from voting because of the overseas
enrolment restrictions in the Commonwealth Electoral Act. Indeed, many submissions received by
the Committee were from expatriate Australians who expressed a desire to be
able to vote, and who felt that they had been disenfranchised by the
restrictions in the Commonwealth Electoral Act.
For example, Mr Mark
Pennay commented that:
The disenfranchised status of those removed from the Australia[n]
electoral roll is felt acutely, especially by the politically active and
informed. I have been ineligible to vote anywhere for the past ten years ...
Similarly, Mr Michael
Laird submitted that:
I have been disenfranchised for around 15 years. I felt my
disenfranchisement most acutely at the time of the 1999 referendum on an
In the same vein, Mr
John Griffin declared:
I am well informed on Australian politics, I have an enormous
interest in, pride in and love for the country of my birth, and I just want to
Current requirements under the
Commonwealth Electoral Act
The grounds on which Australians living overseas may
vote depends on the enrolment requirements set out in sections 94 and 94A of
the Commonwealth Electoral Act. As
Williams stated in
evidence, the current law is 'complex, bureaucratic and difficult'.
Currently, under section 94, Australian citizens moving
overseas who are already on the
electoral roll can remain enrolled by registering with the AEC as an 'Eligible
Overseas Elector' (EOE) if they:
- are leaving Australia within three months, or
left Australia less than three years ago (and are still enrolled at their
previous Australian address); and
- intend to resume living in Australia within six
years of their departure.
Under section 94A, Australian citizens living overseas
who are not on the electoral roll
(but would be eligible to enrol if they were in Australia)
can apply to enrol as an EOE from outside Australia
- left Australia in the previous three years; and
- intend to resume residence in Australia within
six years of their departure.
People enrolling from outside Australia
are generally enrolled in the electoral division for their last address in Australia.
If that is not relevant, they are enrolled in the division of their next of
kin, or the division in which they were born, or the division with which they
have the 'closest connection'.
If persons registered as an EOE are away from Australia
for longer than six years, they can apply to have their EOE status extended by
one year at a time. Enrolment and
voting by Australians overseas is not compulsory.
However, if they do not vote or apply for a postal vote at a federal election,
their EOE status is forfeited and their enrolment cancelled.
Recent amendments to the
Commonwealth Electoral Act
The Committee notes that recent amendments to the
Commonwealth Electoral Act made some changes in relation to overseas voters. In particular, the two-year cut-off
point for application for EOE status was extended to three years. The
requirement for applicants to have left Australia
for a purpose related to their career or employment, or their spouse's
employment was also removed. These amendments were in line with recommendations
by the Joint Standing Committee on Electoral Matters (JSCEM) in its report in
relation to the 2001 federal election.
Should the enrolment restrictions
be relaxed for Australians overseas?
A considerable number of submissions received by the
Committee argued that the right to vote should be extended much further in
relation to Australians living overseas.
The submission from the Gilbert & Tobin Centre of Public Law observed that
the reasons underlying the restrictions in the Commonwealth Electoral Act were
unclear, and that:
In the absence of historical record or a clear justification for
the measure, it might be assumed that Australians living overseas were
originally given limited voting rights because it was felt that they would lose
touch with Australian society and not be knowledgeable enough to make an
informed decision. Such a justification may have been valid in years past, but
in the current interactive, online society, such reasoning is not as
Indeed, as outlined in Chapter 2, many Australians
overseas maintain considerable connections with Australia,
and are well-informed in relation to Australian current affairs. In particular,
many submissions pointed out that internet technology means it is easier than
ever for Australians overseas to keep informed of events and issues in Australia. For example, Mr
The internet has brought with it a sea change in terms of the
maintenance of bonds with Australia ... the current diaspora is perhaps more up
to date on what is happening at home than are many resident Australians.
of the Gilbert & Tobin Centre of Public Law observed:
It may indeed be that a young Australian who has gone overseas ...
to study for a period of time is more aware and more able to be aware of
current Australian events through a good Internet connection than someone who
is in a remote Australian community, who does not have a decent broadband
connection, who does not get the newspapers and who cannot check the Internet.
Isolation can sometimes be greater internally than externally.
Several submissions also suggested that voting should simply
be a right of Australian citizenship, rather than being connected to residency
in Australia. The Gilbert & Tobin Centre of
Public Law submitted that:
The right to vote is not only a fundamental right and privilege,
but a basic entitlement of citizenship. It should not be withdrawn without
strong overriding justification.
Robinson submitted that:
I find it strange that Australia,
one of the few countries that has made it mandatory to vote, effectively shuts
out hundreds of thousands of voters who live overseas and may not have the
ability or the kind relatives to be able to maintain an Australian address and
thus stay on the electoral roll.
Others pointed to other justifications for extending
the right to vote, such as the fact that many overseas Australians still pay tax
in Australia. For example, Mr
I own a house in Australia,
I have taxation on rents without a vote; I thought the Boston
Tea party sought to correct this?
Some submissions also suggested that extending the
ability to vote may encourage expatriates to maintain connections to Australia. In particular, the SCG suggested
While hundreds of thousands of Citizens in the Diaspora are
denied the right to vote, any efforts at other levels to develop 'inclusive'
policies embracing the Diaspora and aimed at allowing Australia
to 'exploit' the Diaspora resource will be undermined at the most basic
philosophical level. It is nave to
expect that those in the Diaspora will ever truly feel part of the Australian
nation if they are prevented from exercising their democratic right to elect
those who govern.
In the same vein, Mr
Despite going to some trouble to make sure I was registered to
vote as an overseas elector when I first left Australia,
I was extremely disappointed at missing out on voting in a state election
because of ridiculous bureaucratic convolutions that somehow meant I was
dropped from the electoral roll without being aware of it. And that had a
really terrible effect on my sense of being Australian at the time.
The Committee notes that the JSCEM report raised
concerns that some Australian expatriates may be able to vote in two nations if
they also have a right to vote in their country of residence or dual
citizenship. In contrast, some
submitters remarked that, having been removed from Australian electoral rolls,
they were unable to vote anywhere in the world.
The Gilbert & Tobin Centre of Public Law (the
Centre) pointed out that many other countries have arrangements for voters
living overseas. Professor
One academic study looked at 63 nations and found that a
majority of those—33 of the 63—did not have any time limitations on overseas
citizens being able to vote. Many of the remaining 30 nations were more liberal
than the Australian regime. We think there is a problem, because our regime is
one of the more restrictive in the world. That seems ... inconsistent with the
sort of aspirations we have for Australian citizenship.
The Centre also outlined several specific overseas
examples. In Canada,
electors who have been living outside Canada
for less than five years, and who intend to return to Canada
in the future, can remain on the electoral roll. In the UK,
an elector can remain on the electoral roll for up to twenty years after
leaving the UK
and taking up residency elsewhere.
In New Zealand,
'the question is not how long has the elector resided elsewhere, but has the
elector returned to New Zealand
(for any period of time) within the last three years.'
Centre noted that in the US,
there are no limits on the voting rights of citizens overseas: 'the question is
simply one of citizenship'. Some
submissions suggested that Australia
should take a similar approach.
For example, Mr Ronald
Delmenico from the Australian New
Zealand-American Chambers of Commerce suggested that Australia
should follow this US
Without such rights it is easy to see how an Australian might
transfer loyalty over time to the country that affords them voting rights—the
single greatest expression of citizenship participation. Positively addressing
issues like that would help them retain a strong, constant tie between Australia
and its expatriate community.
Similarly, the SCG suggested that Australian citizens
living overseas should be able to enrol at
any time after they cease to reside in Australia,
and without having to state an intention to return to Australia
within any period of time.
However, Mr Bryan
Mercurio and Professor
felt the US model
went too far.
MacGregor from the SCG suggested that the UK
approach might also be suitable:
I would favour something like the UK
experience, with the possibility of demonstrating further that you do have a
continuing economic interest in Australia
or other ties or that you are regularly returning to Australia.
felt that the 20-year period used in the UK
model '... is too long for someone to be outside of the country without any form
of return and still be able to vote'.
Mercurio and Professor
favoured the New Zealand
approach, because it required a continued connection with Australia. Mr
commented that, for example:
... the New Zealand
model is probably a better model: showing close ties, one of which is returning
to the country within a set period of time. I am not necessarily saying that
three years, as in New Zealand,
is the correct model. Maybe it should be five years, six years or longer, but
that model clearly shows you still have an interest ...
expressed the view that:
I think that there ought to be some level of connection with
Australia required, beyond mere citizenship ... For me, the question is what
connection there ought to be and ... it ought to be something that is easy to
In response to the Committee's queries as to how a
system similar to the New Zealand
system might be administered in Australia,
I think administratively the way it would work is that someone
would simply tick a box indicating that they have actually done so [returned to
Australian within a certain number of years]. The Electoral Commission may
audit some of those or, if it has particular reasons to do so, it may require
evidence. But otherwise I do not think there should be a requirement for
When questioned whether some form of statutory
declaration could accompany an enrolment application, Professor
It may be good ... to require a witness to that, because it adds a
level of formality and makes it clear to someone that this is a document of
some importance ... Of course, when you compare that type of declaration to how
you enrol to vote in the first place, it is not markedly different. It is not
as if you have to go through any more significant hoops to enrol in the first
place, so I cannot see why you would add an extra limitation to it in terms of
that sort of declaration.
Another suggestion in some submissions was that a
special electorate could be created for expatriate Australians. This is considered further in Chapter
The Committee's view
The Committee agrees that the Commonwealth Electoral
Act should be extended to allow a greater number of expatriate Australian
citizens to enrol and therefore to vote. The Committee believes that the
current restrictions are increasingly redundant in modern society. The
Committee recognises that many Australians living overseas are increasingly
mobile, and many return to Australia
on a regular basis. Many expatriates also maintain their connections to Australia,
and are able to keep informed in relation to Australian affairs through
improved communication technologies.
The Committee therefore considers that the enrolment
provisions should be relaxed to make it easier for Australian citizens overseas
to maintain their electoral enrolment (or 'EOE status'). At the same, the
Committee supports the notion that such Australians should be required to
demonstrate some form of continuing connection with Australia,
such as having returned to Australia
in recent years, along the lines of the approach taken by New
5.115 The Committee
therefore considers that Australian citizens moving or living overseas should
be entitled to register as an EOE if they:
- either left Australia in the previous three
years or have returned to Australia (for any length of time) in the past three
- intend to resume residence in Australia within
six years of their departure.
The Committee recognises that, under the current
provisions, it is particularly difficult to maintain enrolment once an
Australian has been living overseas for over six years. Therefore, in the case
of Australian citizens who have been living overseas for over six years, the
Committee recommends that they should be entitled to renew their enrolment for
up to three years at a time if they have returned to Australia (for any length
of time) within the last three years.
The SCG considered that any potential administrative
issues created by extending the ability to enrol and vote to overseas
Australians would not be significant enough to justify rejecting such
amendments. The SCG felt the existing provisions in the Commonwealth Electoral
Act prevent 'forum shopping' or 'electorate stacking' by overseas Australians.
As outlined earlier, these provisions limit the electorate in which a person
can enrol to that of their last address, their next of kin, or where they were
born. The SCG also argued that:
Further, even if the right to vote were returned to all overseas
Australians tomorrow, it is unrealistic to expect that more than a few thousand
would exercise that right. First, many would not realise that they had been
re-enfranchised, as at present virtually no avenues exist for the AEC to reach
overseas Australians. Second, not all those who were aware that they could vote
would exercise their right to vote because they would not feel informed or
interested enough to make the effort from so far away.
On the other hand, the Gilbert & Tobin Centre of
Public Law recognised that changing the current laws may involve some
We do not suggest that such a change would be easy or cheap to
implement. Increasing the number of overseas voters would require at the very
least that the Australian Electoral Commission be given sufficient resources to
manage the process. Maintaining an accurate and up-to-date electoral roll will
be challenging ... Nevertheless, recognising and giving effect to the citizenship
rights of all Australians is an important and worthy goal.
A related issue is whether voting for overseas
Australians should be compulsory. Currently, voting is not compulsory for
overseas Australians, although failure to vote may result in cancelled
enrolment. It was generally felt that voting should continue to be
non-compulsory for overseas Australians.
For example, Professor George
Williams, while supporting
compulsory voting for the general Australian electorate, expressed his view
I do not think you could apply compulsory voting in its current
form to overseas electors. The impediments to doing so are too high,
technologically and administratively, and also I think there are reasons why
certain overseas Australian citizens ought not be required to vote.
He further suggested that registration as an Australian
overseas elector should be voluntary, but voting should be compulsory once
registered, as this would:
... maintain some of the integrity of the compulsory voting system
without running into the problems of trying to track down 900,000 Australians
living overseas and saying, 'Why didn't you vote?' when it would never have
been possible in many circumstances to do so.
However, Mr John
MacGregor from the SCG felt that:
... the administrative arrangements for the conduct of overseas
voting would have to change considerably before you could think about
compulsory voting for overseas electors.
The Committee agrees that voting should continue to be
non-compulsory for overseas Australians.
Logistical issues and electronic
Currently, voting overseas is achieved by either voting
in person at an overseas polling place (which includes Australian Diplomatic
Missions) or by postal vote. Australians overseas at the time of an election
may cast a pre-poll vote or apply for a postal vote at designated Australian
Embassies, High Commissions, Consulates-General and Consulates. Postal vote
applications are also available from the AEC website once an election has been
announced. The application is completed and then sent or delivered to the
nearest overseas polling place. Ballot papers are then sent to the applicant,
and returned by the elector to the Divisional Returning Officer or the
Assistant Returning Officer.
Garrett expressed some dissatisfaction with
I had to take a day off work to travel to the Australian embassy
in London to vote in the last
national elections, which was annoying. (Postal votes had to be sent in some
weeks in advance, as I recall). Sure there could be an easier way!?!
Similarly Mr Shannon
Tobin felt that the process for voting while
overseas was too complicated:
Whilst I have been away from Australia
I have not voted in any election, due to the complicated process involved of
overseas voting ... The voting process needs to be made simpler in order to
encourage the expat community to vote and not discourage them...
Some submissions suggested that electronic voting
should be investigated to facilitate voting for Australians overseas. For example, AustCham Beijing asked:
When will we be able to vote in Australian elections over the
internet, rather than by snail mail, or via physically attending an Embassy or
Similarly, the SCG recommended that:
... further research into electronic voting and enrolment methods
be pursued as a matter of urgency with a view to their introduction and use as
a way of supporting the exercise of the right to vote by Australians overseas.
The Committee notes that an AEC report has recommended
that federal, state and territory Electoral Acts be amended to enable a trial
of electronic voting for overseas electors (among others). On the other hand, the Committee
notes that the JSCEM report into the 2001 federal election rejected a possible
trial of electronic voting by the AEC.
The JSCEM report concluded that the AEC should provide that Committee with a
detailed implementation plan before any approval for pilot trials.
While the Committee received little evidence on the
issue of electronic voting, the Committee notes electronic voting is being
trialled in a number of jurisdictions around the world. The Committee recognises that there
are a number of technical and logistical issues, particularly in relation to
security and authentication, which may need to be overcome before electronic
voting is a viable option.
Education and information on voting
for overseas Australians
Once again, lack of information for overseas
Australians was a common concern when it came to enrolment and voting issues. For example, Ms Georgina Wright stated
in her submission:
I have no concerns with the exception of the very silent but
deadly law removing one’s right to vote if an application for registration as
an overseas voter is not applied for. I was lucky enough to find out about the
existence of this rule just before the 2 year period was up. Otherwise I’d be
'disenfranchised' for this year’s federal elections, which would be a personal
Williams commented that:
... there needs to be improvement in the way information is given
to expat Australians about the current legal regime. Information is not easily
accessible other than via the Internet, if you already know to look at the
Internet. It is not provided in other obvious ways that might assist. That
might involve funding issues for the Australian Electoral Commission.
In its submission, the SCG suggested several ways to
increase and improve the information made available to Australians overseas
about enrolment and voting, including provision of information at various locations
to Australian citizens leaving Australia,
and at Australian overseas missions.
For example, the SCG suggested that information leaflets could be made
available alongside passport application forms at post offices and consular
posts. While acknowledging that
improved information would prevent future Australians from becoming
disenfranchised, the SCG reiterated its concern that many overseas Australians
are 'already disenfranchised'. According the SCG, as a result:
Information about an election is of no practical use to these
people at the current time because they have lost the right to vote.
The Committee notes that the JSCEM report also
discussed the low level of awareness of the overseas enrolment provisions. Recommendation 6 of the JSCEM report
suggested that the AEC provide comprehensive information on overseas voting
entitlements and enrolment procedures to all electors who contact the AEC about
moving overseas. The Federal Government
responded to this recommendation as follows:
The AEC will review its approach to providing information to
persons who contact it about moving overseas and amend staff training
accordingly. The AEC website already provides a substantial amount of
information including frequently asked questions, and information about
eligibility and forms for overseas electors ... The AEC is also working closely
with the Department of Foreign Affairs and Trade to provide better service at
the next federal election through the provision of ballot papers electronically
to diplomatic posts.
The Committee understands that the AEC has made efforts
to improve the level of education and availability of information since the
JSCEM report. This has included an initiative targeting travellers and
expatriates, and information and
training sessions for consular staff in Canberra
and staff in overseas missions. The
Committee also notes that the most recent AEC Annual Report states that its
customer inquiry email service received more than 1,375 inquiries from
Australians living, travelling, or about to depart overseas.
In response to the Committee's questioning, a
representative from DFAT explained its role in providing information to
Australians overseas about voting:
We have a very close role with the Australian Electoral
Commission in the provision of voting facilities overseas for elections and in
doing that we act in effect as an agent of the AEC. When we fulfil that role at
the time of elections ... we provide a lot of information about policy, voting
procedures and so on. When it comes to information about ongoing changes to
legislation in relation to elections that impact on the rights and interests of
Australians overseas, I think that is principally an issue for the AEC. We are
certainly always happy to provide that information and to use our networks
overseas to disseminate that information, but I do not think we would be the
initiators of that process.
A related issue raised in submissions was that some
expatriates had removed their name from the electoral roll due to a belief that
the Australian Taxation Office (ATO) refers to the roll in assessing a person's
residency for tax purposes. The
SCG suggested the ATO should issue a Guidance Note stating that a person's
inclusion on the electoral roll shall have no bearing on the determination of
whether a person is resident or non-resident for taxation purposes. It also suggested that information
provided by the AEC should include a clear statement that a person's enrolment
status is not a factor to be considered by the ATO in determining their
residency status. The Committee
received little other evidence on this issue, but notes that, during the JSCEM's
inquiry into the 2001 federal election, the ATO undertook to clarify the
relevance of registration on the electoral roll in determining residency