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International law

You have a right to both citizenship and nationality in international law.

The starting point to understanding this is Article 15 of the Universal Declaration of Human Rights (1948), which states that ‘everyone has a right to a nationality’ and that ‘no one shall be arbitrarily deprived of his nationality.’ Without citizenship, a person can be ‘stateless’ in the eyes of the law. This means they have no homeland in which they have a right to live.

Australia is a party to both United Nations treaties concerning statelessness, the Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961). Therefore, Australia has an international obligation to implement these treaties in its local laws.

Article 8 of 1961 Convention provides that a state shall not deprive a person of its nationality if such deprivation would render him stateless. The prevention of statelessness stops a person from losing access to basic services to which a citizen might be entitled, such as education services, and losing their right to vote and participate in a democracy.

Article 24(3) of the International Covenant on Civil and Political Rights provides that every child has a right to a nationality. Furthermore, Article 12(4) provides for a right to enter “one’s own country”, implying that every person has at least one country to which he or she is entitled to enter and stay.

Domestic law

The Australian Constitution does not grant any express legal right for anyone to be an Australia citizen.

Australian citizenship is regulated by the Citizenship Act 2007 (Cth). You become an Australian citizen automatically, if you are born in Australian and one or both of your parents are Australian (s. 12), or by application to the Minister. This second form of acquiring Australian citizenship is available if:

  • You were born outside Australia but one of your parents was an Australian citizen when you were born (s.15A)

  • You have been adopted in accordance with the international laws that Australia is signatory to (s.19B)

  • You have been conferred citizenship after becoming a permanent resident and passing a citizenship test (s. 19G)

Prior to 2015, Australian citizenship could only be lost in relatively narrow circumstances: in cases of fraud, where a person chose to renounce it, or as a result of fighting for a country at war with Australia (s.35 ). The latter two instances could only apply to dual citizens

In December 2015, the Government passed the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth). This Act introduced three additional grounds upon which a person of dual citizenship can lose Australian citizenship:

  • A person can now automatically lose their citizenship if they engage in conduct contained in Commonwealth terrorism and foreign incursion and recruitment laws. No conviction of an offence is required. However, a person can only lose citizenship in this way if they intended to advance a political, religious or ideological cause, or to intimidate a government or the public.

  • A person can now automatically lose their citizenship if they serve in a declared terrorist organization. Again, no criminal conviction is required. However, if the person was providing neutral humanitarian assistance or acting under duress then they will not lose their citizenship.

  • The Minister for Immigration may revoke a person’s citizenship where they have been convicted of particular offences, and sentenced to at least six years imprisonment. The relevant offences generally relate to terrorism or a lack of allegiance. However some offences do not logically relate to these things – for instance, a person can lose citizenship simply for visiting a region declared by the government to be a no-go zone. To revoke a person’s citizenship, the Minister must be satisfied that revocation would be in the public interest, and that the person has repudiated their allegiance to Australia.

As a result of these changes, Australia now has one of the broadest citizenship stripping models in the world. The automatic revocation laws, in particular, go much further than citizenship stripping laws in other countries. Experts have suggested that parts of the scheme may be challenged as a breach of the Australian Constitution.

At the time of writing in February 2017, one person had reportedly lost his citizenship due to the 2015 amendments.

 


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