Talk:Australian nationality law/Archive 1

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Archive 1

White Australia Policy

The White Australia Policy is relevant plus the associated laws after 1901. Paul foord 14:38, 2 January 2006 (UTC)

wouldn't that be more relevant to Australian immigration laws rather than nationality? Australia didn't have a separate nationality from the UK until 1949 JAJ 02:44, 3 January 2006 (UTC)

Australians did NOT have a separate nationality after 1949 either ! It is a common error to confuse Nationality with Citizenship . In 1949 Australians did not acquire a new nationality they were granted extra citizenship rights ( as British Nationals ! ). The confusion is caused by reading the 'short'title of the Act which reads " Nationality and Citizenship Act "- but if you check the long title it reads " British Nationality and Citizenship Act " . Section 7 of the Act specified that all Australians were still British Subjects and a note in the margin indicates that they were still of British nationality ! - there was clearly no change of nationality in 1949 . In fact a leading politician of the time Arthur Calwell assured the Australian Parliament that British Nationality would be retained after the passing of the Act . In addition it must be remembered that Australia was still classified as a British Dominion long after 1949 . And Australia remained within the legal jurisdiction of the Westminster Parliament ( however minimaly ) for a further 37 years until the Australia Acts 1986 came into effect . The Brit. Nationality and Citizenship Act 1949 was amended on numerous occassions and finaly became the ' Australian Citizenship Act 'but S.7 of the Act specifying that Australians were British subjects ( or had the status of British subjects ) was only finaly abolished by amendment on the 1 May 1987 , which was 11 months after the Australia Act had declared that australia had the status of a Sovereign Independant and federal NATION . It was not the amendment of the Australian Citizenship Act which established an Australian Nationality but the coming into effect of the Australia Acts which as a ' latter Act ' automaticaly amended the Australian Citizenship Act to the extent of any inconsistency .So as the Aust Act came into effect on the 3rd March 1986 that is the date of the commencement of Australian Nationality . Leejon 15 june 2006

It is true that in the late 1940s the intention was that a common British nationality be retained through holding the citizenship of any Commonwealth nation. However, immigration restrictions in the UK, Canada, Australia and New Zealand during the 1960s and 1970s made the concept effectively meaningless long before it was legally abolished in the various nations. JAJ 22:30, 17 June 2006 (UTC)

Unfortunately JAJ there is no such thing as an ' effectively meaningless ' Nationality . You are either you are a National of one Polity or you are the National of another Polity . The jurisdiction of the UK ( however minimal )was not terminated until 1986 and Australia was never descibed as a 'Sovereign Nation' until the Australia Acts . The Statute of Westminster specified ( in Law )that Australia was a ' Dominion ' . Leejon 26 June 06

Whether or not a country is a Dominion is not related to whether or not it is a sovereign nation. Although the term is not used to describe them today, because it is considered a historial term, Australia and Canada are still Dominions today. Any Commonwealth Realm, including the UK, meets the definition of the old term dominion. --thirty-seven 17:23, 26 June 2006 (UTC)

The term Dominion is not used today - because the Australian Parliament specified in the preamble of the Australia Act 1986 ( Cth ) that Australia has the "status of a Sovereign , Independant and Federal Nation" . And the provisions of that Act removed the last vestiges of authority of the British State over Australia . It was the final confirming act of a long series of ' steps towards ' Sovereign Nationhood taken by Australia . The term Dominion ( note Capital D )was once used by the British Government to describe the self governing dominions 'within the British Empire which had a very high level of autonomy but were not considered sovereign nations - the Balfour declaration 1926 was the defining statement and the dominions that were to be known as Dominions were specified by a British Law - the Statute of Westminster 1931 .The term ' Commonwealth Realm ' does not indicate a political connection to the British State ( all members of the Commonwealth are Sovereign Nations in free association ) The term dominion ( small d ) is no longer used in Australia but the term Nation is . Leejon 29 June 06

According to the Declarative_theory_of_statehood Australia was sovereign long before 1986. It was a member of the United Nations and recognised as an independent nation by other countries (who sent ambassadors to Canberra). JAJ 00:58, 8 July 2006 (UTC)

This article discusses ' Australian Citizenship Law ' effectively but does not discuss ' Australian Nationality - Law ' ? Leejon 7 July 06

This is in line with Wikipedia convention. In Australia, as in most countries, there is no difference between citizenship and nationality. In a few cases, such as Britain and the United States, there is. JAJ 01:00, 8 July 2006 (UTC)

JAJ , as I stated at the begining there is huge confusion over the meaning of the terms Nationality and Citizenship - but they are not the same thing . Yes Australia did have nearly all of the 'attributes' of a Sovereign Nation well before 1986 but as the High Court of Australia said in ' Sue v Hill ' at point 173 - " At the very latest ' the Commonwealth of Australia was transformed into a sovereign , independent nation with the enactment of the Australia Acts ". Lejon 11 July 06

Sorry, in most countries nationality and citizenship are the same thing. As for the opinion of the High Court, are they seriously saying that other nations should not have engaged in diplomatic relations with Australia prior to 1986? Or is the comment taken out of context. JAJ 04:01, 11 July 2006 (UTC)

JAJ you will notice that the quote from the HCA starts with " At the very latest " - the preceding points discuss some of the 'steps toward ' nationhood that Aus . had already taken ... and that statement is not a judgement but an opinion . As far as I know the HCA has never made a specific legal decision on the issue . Long , long before 1986 ( at least as far back as 1923 I think ) the self-governing British Dominions were authorised by the Westminster Parliament to engage in diplomatic relations with foreign countries - but they were still classed as " within the Empire " and the Empire was considered a single National unit . . Lejon 6pm 13July 06

Proof of citizenship

What evidence do Australians born after 1986 normally use to show their citizenship within Australia? The article says that birth certificates are only good as evidence of citizenship for those born before 1986. Are Australian children born after 1986 issued a certificate of citizenship by descent? What do Australians born in Australia after 1986 use when showing they have the right to vote or when applying for their passport? --thirty-seven 03:47, 21 February 2007 (UTC)

Persons born in Australia on or after 20 August 1986 can prove their Australian citizenship (citizenship by birth, not by descent) by applying for a Certificate of Evidence of Australian citizenship. JAJ 03:40, 22 February 2007 (UTC)

Australian protected persons

In the article it is noted that persons from the Trust Territory of New Guinea were "Australian protected persons" because the territory was not considered part of Australia. On the internet it is defined as "anyone under the protection of the Australian government". Does anyone have any more information on this status? How was it developed? When did it come into being? Could we have a separate article for it like the British protected person article?72.27.62.58 04:40, 26 February 2007 (UTC)

Special Purpose Visas

Special purpose visas are normally automatically granted by operation of law in specific circumstances. No formal visa application or decision is required. The only "decision" would be a determination of whether the law has acted to grant the visa or not. There are a few other visas of this type in Australian migration law, including absorbed person visas and ex-citizen visas. JAJ 02:42, 13 March 2007 (UTC)

My quibble was the use of the word "automatic". This suggests, to me, something that happens without human intervention, which surely cannot be the case. A visa cannot issue itself, law or no law. The system that issues visas must be informed of the visit of the royal personage, and that information can only be provided by a human. Effectively, someone, somewhere, has to decide to approve the issuing of this visa, and after that the system does what it needs to do. To cause such a visa to be denied might be unprecedented and unthinkable, but surely someone, somewhere, has such a hypothetical power. That it may never be used still does not make the issuing of the visa "automatic", in my understanding of the word. JackofOz 02:54, 13 March 2007 (UTC)

You say "A visa cannot issue itself, law or no law". Sorry, but the Migration Act 1958 says otherwise. You may be confused between that and a visa stamp in a passport which clearly does require some human intervention. The visa itself, in these cases, is automatic and in fact for special purpose visas, no visa stamp is normally required JAJ 01:12, 15 March 2007 (UTC)

That's right. Certain visas do exist merely as a result of the operation of Australian migration law. No human need do anything. Further to your point about a visa stamp not normally being required - I'll go one further: A member of the royal family entering Australia won't normally have a passport but the Special Purpose Visa exists anyway. Robert Brockway 01:20, 15 March 2007 (UTC)

OK. I see now. You're using the word in the abstract sense of permission to enter Australia, whereas I was thinking of a visa as a document that certifies such a permission has been granted. Fair enough. Thanks for the update. JackofOz 07:39, 15 March 2007 (UTC)

I'm not quite sure what your getting at but Australia has electronic visas Nil Einne 15:21, 30 April 2007 (UTC)

Electronic Travel Authority is not the same as a Special purpose visa. JAJ 04:17, 1 May 2007 (UTC)

citizenship

I have been trying to find info on, who was the first naturalised citizen?
When was this and from what country was she or he? can someone help i have tried typing all different combinations/ Where else can i look?

--14:01, 8 August 2007 (UTC)K gran

Start at National Archives of Australia. Bear in mind that:

Prior to 1904, naturalisation was conducted by State governments.
Prior to 26 January 1949, naturalisation by the Australian federal government was as a British subject rather than Australian citizen.
Between 26 January 1949 and 30 November 1973, migrants from Commonwealth countries generally became Australian citizens by registration rather than naturalisation. JAJ 03:23, 9 August 2007 (UTC)

thankyou this started as a TAFE project and now i am hooked. So many things to learn.

Aboriginals

There have been anecdotes over the years that some states included aboriginals under the jurisdiction of fisheries & wildlife departments or similarly demeaning legislation. However, saying that they were provided for by the "flora and fauna act" needs a citation. As far as I can see, there was no federal act of that sort. Grusl (talk) 09:54, 29 December 2007 (UTC)

* this article suggests that Aboriginals were Australian citizens all along. JAJ (talk) 01:38, 2 January 2008 (UTC)

* You may be right. I don't know enough about the subject - and I'm not defending Australian governments of the time on the matter - but I suspect the fauna/wildlife references are myths, or at least there were differences between states. Grusl (talk) 08:43, 2 January 2008 (UTC)

Bring it on yo!!!!!!!!!!! from olivia from queens land —Preceding unsigned comment added by 61.69.192.34 (talk) 09:23, 13 May 2008 (UTC)

Lack of national identity

The main text says, "This lack of an independent national identity was demonstrated on 3 September 1939 when the Australian Prime Minister, Robert Menzies, announced to the country that Great Britain had declared war on Germany and, "as a result", Australia was also at war." I am not convinced that Menzies' announcement speaks of a lack of national identity per se but rather suggest that there was a strong feeling of empathy with Great Britain, especially in Great Britain's time of trouble — not quite the same thing at all, and Australia certainly had it own identity in the 1930s. In any event, it doesn't seem relevant for a discussion about Australian nationality law, since Australia was not alone in not having its own, full nationality laws at that time: it was the norm for independent Empire countries, and it was not until after the Second World War that this situation changed (as this and other similar articles make clear, in fact). Ondewelle (talk) 22:28, 20 May 2008 (UTC)

Context in lead

The article was tagged for lack of context in the lead. I have reordered and reworded slightly. I am confused by However, citizens of Australia continued to be British subjects and other British subjects in Australia had a different status in law from that of those who were not British subjects. and have removed and other British subjects in Australia had a different status in law from that of those who were not British subjects as I do not understand it.--Matilda ^talk 21:50, 29 May 2008 (UTC)

I think the point was that other British subjects (what we would call today "Commonwealth citizens") had certain rights that were not accorded to other non-citizens. They also had easier access to Australian citizenship than other non-Australians. The most obvious right that British subjects had was the right to vote; this right was abolished in 1984, but those British subjects (Commonwealth citizens) that were on the electoral roll at that time can continue to be on it. The erosion of the rights of British subjects (Commonwealth citizens) in Australia is mirrored in other Commonwealth countries as well, although vestiges remain of it in some cases. For example, Commonwealth citizens living in the UK still have the right to vote and, in general, to stand for and occupy most public offices. As far as I know, no such vestiges remain in Australian law, apart from the "grandfathering" of those already on the electoral roll when the law changed, as noted above. I think that the original was probably worth including, although not, I agree, in the opening sentences. Ondewelle (talk) 09:12, 30 May 2008 (UTC)

I have added back an amended version of what was removed [i.e. the statement that now reads, "Under the 1948 Act, citizens of Australia continued to be British subjects, as noted above; moreover, other (non-Australian) British subjects in Australia had a different status in law from that of those who were not British subjects, although these differences have now largely disappeared"], but I have put it in a slightly less prominent place (the end of the third paragraph, the one beginning "Prior to this date..."), since I think this information is worth recording. As far as I know, the only remnant of this situation is that non-Australian citizens who were British subjects and who were on the electoral roll when the provision was abolished in 1984 are eligible to remain on in and to vote (provided of course that they fulfil the other criteria), although I don't know that this is the place for any details. Ondewelle (talk) 23:12, 20 June 2008 (UTC)

British subjects (Commonwealth citizens) in Australia

I suspect there is scope for a section on British subjects (Commonwealth citizens) in Australia if not an article on British subjects (Commonwealth citizens) with a subsection on those in Australia and dealing with the history. There is British subject#British subjects in other parts of the Commonwealth and following subsections - may be that needs to be expanded.

Browsing the internet I came across a case Shaw v Minister for Immigration and Multicultural Affairs - High Court of Australia, 9 December 2003 - [2003] HCA 72, (2003) 203 ALR 143 - see http://www.ags.gov.au/publications/agspubs/legalpubs/litigationnotes/LitNote11.htm The case deals with The constitutional meaning of ‘alien’ - A British subject who comes to Australia after 1949 is an ‘alien’ for constitutional purposes, if he or she has not been naturalised. The High Court’s decision in Shaw is reported to overrule Re Patterson; Ex parte Taylor (2001) 207 CLR 391, and returns to the position decided in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178. Footnote 2 refers to Nolan but perhaps there could be a bit more ... we have a subsection on 1949 - perhaps this section could include a ref to this case? This Age article explains: http://www.theage.com.au/articles/2003/12/09/1070732212136.html

This Google Books result for From Subjects to Citizens: A Hundred Years of Citizenship in Australia and Canada may be an interesting resource for developing this bit of the article.

Thanks for clarifying though and fixing up the lead.--Matilda ^talk 00:05, 22 June 2008 (UTC)

Yes, such an article could indeed be interesting, although it would be mostly (though not entirely) of historical interest now and would take a good deal of work to make it anything like comprehensive, since the different Commonwealth countries all had (and have) different laws and regulations with regard to Commonwealth citizens.... Ondewelle (talk) 10:52, 23 June 2008 (UTC)

Australian redirecting here

Shouldn't there at least be an Australian (disambiguation) page? I'm about to start Australian, British Columbia and there will eventually be an article on the Australian Ranch, one of BC's oldest and most famous. Isn't there an Australian people article, or is that a redirect here as well?Skookum1 (talk) 14:08, 9 June 2008 (UTC)

Standard dictionaries list Australian as either an inhabitant (ie permanent resident) of Australia or a language indigenous to Australia. Perhaps there should be an article Australian people to which Australian links .. with a 'for other uses' disambiguation .. and relevant aspects of the Australian nationality article merged into the new Australian people article? Bruceanthro (talk) 15:05, 9 June 2008 (UTC)

I think Australian should redirect to Australia. The article Australian people redirects to Australia - it probably should redirect to Demography of Australia as per the example of Canadian people. Discussed at WP:AUSDEM --Matilda ^talk 00:34, 10 June 2008 (UTC)

British & Commonwealth Citizen Window

Dare I state the obvious? There is no such thing as Commonwealth Citizenship in the eyes of Australian law. Why is an Australian law article being grouped into a category with that of a foreign country - i.e. the United Kingdom? It doesn't seem at all relevant and hints at an anglo-centrism removed from the realities of the Australian national experience. I think that window (which is spread like a pox across wiki) needs to be altered or deleted. If you're going to have a window that indicates the unique citizenship laws of commonwealth member states, then why not have a window that indicates the unique citizenship laws of united nations member states? Same kettle of fish.

Thoughts? Comments? User:DTR (talk) 09:18, 1 September 2008 (UTC) —The preceding comment signed as by DTR (talk • contribs) was actually added by 122.106.188.158 (talk • contribs) -

I think that the status of Australian citizens in the UK as Commonwealth citizens ought to be mentioned, since that status, as it affects individuals, derives from the fact of their Australian citizenship, which is what the article is about. I think the current position and length of the paragraph in the text (i.e. towards the end of the article; not very long) is about right. Personally, I have no objection to the presence of the Commonwealth Citizens "window", since it is informative and, as it seems to me, not ambiguous. However, this "window" is something quite different from the text of the article... Ondewelle (talk) 09:21, 1 September 2008 (UTC)

Hmmmmm but the British law relates to " Commonwealth citizens " that is any citizen from a country that is a member of the Commonwealth of Nations . Look at it this way - if for some reason Australia ceased to be a member of the Commonwealth of Nations having Australian citizenship would not entitle an Australian to any privelidges in the UK . An Australian is classed as an " alien " under British Law . Having Australian citizenship excludes Australians from classification as British subjects .Lejon (talk) 23:09, 11 August 2009 (UTC)

Terrible formatting

The formatting on this page is terrible. It should really be seperated into the historical and current situation, its very difficult to work out what bits of it are about Australian citizenship as it stands in Law today and which bits are historical. Some one with knowledge of the topic should consider reorganising it. (The information seems fine, just very difficult to find what your looking for) ```` — Preceding unsigned comment added by 110.33.96.186 (talk) 08:03, 17 August 2011 (UTC)

Lack of Sources Verifying Claims

Quite a large number of bold legal claims are made without any supporting references to the sections of the Act relied upon or reference to caselaw. The statements made are dogmatic but there is nothing there to back them up. Those claims need either a citation to support them or they really should be deleted. Calanen (talk) —Preceding undated comment added 05:52, 24 July 2012 (UTC)

I suspect the article is just highly unreliable. For example, Australian nationality law#Acquisition of Australian citizenship on 26 January 1949 implies people had to register to obtain the new citizenship, whereas British subjects born in Australia acquired it automatically (Section 25 of the 1948 act). --RichardW57 (talk) 13:47, 15 February 2020 (UTC)

Ungrammatical sentence

"It was more than 80 years before the Court would rule that anyone who was not an Australian citizen, whether or not a subject of the Monarch of the United Kingdom".

This sentence isn't even grammatical. What does it mean ?Eregli bob (talk) 10:15, 24 March 2013 (UTC)

I think that it is intended to mean something along the lines of, "It was more than 80 years, after separate Australian citizenship was established by the Nationality and Citizenship Act 1948 and after all reference to the status and special position of British subjects were removed from the Act by amendment in 1984 (taking effect from 1 May 1987), that Australian citizenship became the sole statutory description of membership of the Australian nation." Wtmitchell (talk) (earlier Boracay Bill) 20:50, 24 March 2013 (UTC)

Enemy soldiers

Didnt they want to change the law, that they could strip ISIS soliders of Australian citzenship. Also what about Vietnam War, wouldnt it be an impediement for those in Veitcong vets applying (although probbaly dont declare and hard to prove as guerilla soliders). — Preceding unsigned comment added by Chaz1dave (talk • contribs) 05:58, September 8, 2017 (UTC)

See [1], etc. Wtmitchell (talk) (earlier Boracay Bill) 00:07, 9 September 2017 (UTC)

Deportation

The article currently states that Australian citizens are immune from deportation. I am not a lawyer, but I've read here that the supposed "immunity" was explicitly rejected by the High Court in Vasiljkovic v The Commonwealth of Australia (2006) 227 CLR 614. Australian citizens are apparently extradited often. --101.165.120.249 (talk) 11:26, 1 August 2014 (UTC)

Deportation and Extradition are rather different concepts though - Peripitus (Talk) 00:35, 2 August 2014 (UTC)

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Factual accuracy

I reverted edits by User:Horserice to the article, which in turn largely reverted changes I had made. In short, the reasons for the revert are:

The use of the term 'regulations' is confusing, given in Australian law 'regulation' refers to delegated/secondary legislation, including relevantly the Australian Citizenship Regulation 2016. Rephrasing to use 'law' is preferable.
The ordinary residence requirement for citizenship by conferral is not 4 years in the country as a permanent resident, as the reverted language suggests ("after living in the country for at least four years while holding permanent residency"). Instead, the requirement is to be in Australia lawfully for 4 years, including 1 year as a permanent resident (subject to permissible absences as explained in the article). See section 22(1) of the Act.
Application for citizenship by descent relates to one of the child's parents (who must be a citizen). If that parent is a citizen by descent, then they must satisfy the "2 years lawfully in Australia" requirement. If the other is a citizen other than by descent, then the application could relate to that parent, in which case the requirement wouldn't apply. See Department of Home Affairs website and section 16(2)(b) of the Act.
Only applicants for citizenship by conferral who are 18-59 years old are required to demonstrate 'a basic knowledge of the English language', and the only they can demonstrate that knowledge is by successfully completing the citizenship test. The citizenship test is also the only way they can satisfy two other criteria, being that they understands the nature of an application for citizenship by conferral, and that they have an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. See section 21 of the Act, and particularly 21(2).

These are not 'unnecessary phrasing changes', they are all (other than, perhaps, the first point) strictly necessary to ensure the accuracy of the article. Happy to discuss any of these issues. Portwalrus (talk) 06:00, 22 July 2022 (UTC)