Australia Law

1. Citizenship Law

a. Jus Sanguinis Provisions

The citizenship law of Australia primarily operates under a jus sanguinis framework, with certain variations based on the individual’s place of birth. The Australian Citizenship Act (2007) outlines that children born within Australia to at least one parent who is either an Australian citizen or a permanent resident automatically acquire citizenship. Children born in Australia gain citizenship if they reside in the country for 10 years following birth. Conversely, children born outside Australia to an Australian citizen parent are eligible for citizenship through application but are not automatically considered citizens. The presence of at least one Australian citizen parent is necessary for citizenship by application. Foundlings in Australia are granted citizenship automatically unless evidence is provided to demonstrate their nationality ties elsewhere. Australia’s legal definition of a stateless person is someone without nationality or citizenship from any country, with the burden of proof placed on the individual, differing from the definition set forth by the 1954 Stateless Convention.

b. Naturalized Citizenship

There is a simplified citizenship by conferral process available to stateless persons born in Australia explicitly, outlined in the Citizenship Act. In order to be eligible, the only requirement is that the stateless person is not and has never been entitled to citizenship of another country. Stateless persons not born in Australia may also be eligible for the non-simplified application for citizenship by conferral if they have been legally resident in Australia for four years or as a permanent resident for 12 months prior to the application. Despite this, stateless persons not born in Australia cannot access citizenship under the citizenship law due to their visa status. Since 2014, all refugees who arrived in Australia without a valid visa have been placed on temporary visas. Under the current law, persons on temporary visas are not entitled to apply for permanent residency (except for in very limited circumstances) or citizenship, providing almost no avenues for stateless refugees to gain citizenship.

In November 2023, the Australian High Court ruled that indefinite immigration detention is unlawful and unconstitutional in a landmark decision. As a result, the solicitor general stated that in cases where there is no possibility of people being returned or deported, the person will “be released immediately into the community”.

c. Dual Citizenship

Since April 2002, it has been permissible for Australian citizens to acquire citizenship of another country without losing their Australian citizenship. This is due to the now repealed section 17 of the Nationality and Citizenship Act (1948), which stipulated cessation of Australian citizenship upon grant of citizenship elsewhere.

Industry groups, including Amnesty International and the Australia Human Rights Commission, have called for reform of Australia law, including to:

• abolish mandatory immigration detention in favor of a discretionary system under which detention is applied as a last resort and only when strictly necessary;
• restrict immigration detention to a maximum of 30 days without judicial review and six months overall;
• establish a system of judicial review of immigration detention longer than 30 days, with subsequent reviews carried out at regular intervals if continued detention is deemed appropriate;
• codify clear criteria for lawful detention and minimum standards of treatment for people subject to immigration detention, in line with UNHCR’s Detention Guidelines; and
• prohibit the detention of children in closed immigration detention facilities, with community-based support arrangements to be used in place of closed detention.

2. Treaty Ratification Status

Australia is one of only three states in the Asia-Pacific that is party to both Stateless Conventions, the Refugee Convention and all relevant human rights treaties. Australia made no relevant reservations on these ratified treaties. While party to all relevant treaties, none of the relevant treaties have been implemented directly into domestic law. For example, there is a disjunct between the definition of ‘stateless person’ in Australian citizenship law and the 1954 Statelessness Convention.

Australia has endeavoured to meet its international obligations following ratification of the conventions. For example, as a party to the 1961 Convention, Australia has an international obligation to prevent children from being born stateless. As such, section 21(8) of the Act provides that a person born in Australia who is not, has never been, and is not entitled to acquire citizenship or nationality of a foreign country (i.e. is stateless), is eligible for Australian citizenship. However, from a practical view, even when a person has a strong prima facie entitlement to Australian citizenship under section 21(8), they are likely to experience significant delays and administrative barriers throughout the application process, given that there are no fixed timeframes for the acquisition of citizenship even if all criteria are met, and it is in the absolute discretion of the Minister for Immigration, Citizenship and Multicultural Affairs. As such, while efforts are being made to incorporate the treaties in local law, there are still some gaps in the practical implementation.

Concluding observations by the Human Rights Committee included concerns regarding the revocation of citizenship, among other hastily adopted measures, in counter-terrorism efforts. In 2019, the CRC Committee’s concluding observations recommended that Australia consider revoking the 2015 amendment to the Citizenship Act that allows the loss of citizenship for children under 18 found to have acted inconsistently with their allegiance to Australia. The Committee also urged Australia to ensure free birth registration and birth certificates for all children, “in particular Aboriginal and Torres Strait Islander children, children living in remote areas and children in child protection services.” This was echoed in the 2018 concluding observations by the CEDAW Committee, which expressed concerns regarding birth registration for indigenous communities, which has resulted in limited access to services for indigenous women and girls. It was recommended that Australia remove late registration fees and strengthen mobile registration services. As a party to the CRC, Australia is bound to ensure that every birth in its territory is registered immediately.

The 2021 UPR submission for Australia stated that several states have recorded an increase in birth registration rates Aboriginal and Torres Strait Islanders. In the National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, it is stated that the Australian government takes seriously its responsibility to the Australian people to administer an orderly migration system, which is an essential facet of national sovereignty. A non-citizen who does not hold a valid visa is an unlawful citizen and must be detained under the [Migration Act (1958)]”. It also stated that detention in an immigration detention centre would be the last resort for the management of unlawful non-citizens. Despite the recommendations by UNHCR, Australia being a State party to the conventions on statelessness, still has not implemented a statelessness determination procedure, which it has also been recommended to do by UNHCR as a State party to the conventions on statelessness.

Signifies that the country is a party to the convention

Stateless 1 – 1954 Convention relating to the Status of Stateless Persons

Signifies that the country is not a party to the convention

Stateless 2 – 1961 Convention on the Reduction of Statelessness