Australian nationality law
The primary law governing nationality of Australia is the Australian Citizenship Act 2007, which came into force on 1 July 2007 and is applicable in all states and territories of Australia.
All persons born in Australia before 20 August 1986 were automatically citizens at birth regardless of the nationalities of their parents. Individuals born in the country after that date receive Australian citizenship at birth if at least one of their parents is an Australian citizen or permanent resident. Children born in Australia to New Zealand citizens since 1 July 2022 also receive Australian citizenship at birth. Foreign nationals may be granted citizenship after living in the country for at least four years, holding permanent residency for one year, and showing proficiency in the English language.
Australia is composed of several former British colonies founded in the 18th and 19th centuries, whose residents were British subjects. After federation as a Dominion of the British Empire in 1901, Australia was granted more autonomy over time and gradually became an independent sovereign state. Although Australian citizens ceased to be regarded as British subjects in 1984, they remain Commonwealth citizens under British law. When residing in the United Kingdom, Australians are eligible to vote in UK elections and serve in public office there.
Terminology
The distinction between the meaning of the terms citizenship and nationality is not always clear in the English language and differs by country. Generally, nationality refers a person's legal belonging to a state and is the common term used in international treaties when referring to members of that polity; citizenship refers to the set of rights and duties a person has in that nation. Despite this distinction, the Australian Government uses these two terms interchangeably.Colonial-era history
Fragmented development
The Kingdom of Great Britain established its first colony in Australia with the founding of New South Wales in 1788. Over the course of the 19th century, the British presence expanded throughout the continent. By 1890, there were six separate self-governing territories in Australia. British nationality law applied to each of these colonies, as was the case elsewhere in the British Empire. Australians and all other imperial citizens were British subjects; any person born in the Australian colonies, the United Kingdom, or anywhere else within Crown dominions was a natural-born British subject. Aboriginal Australians and Torres Strait Islanders became British subjects as the colonies were settled throughout the continent.British nationality law during this time was uncodified and did not have a standard set of regulations, relying instead on precedent and common law. Until the mid-19th century, it was unclear whether rules for naturalisation in the United Kingdom were applicable in other parts of the Empire. Colonies had wide discretion in developing their own procedures and requirements for admitting foreign settlers as subjects. New South Wales and Tasmania respectively enacted legislation in 1828 and 1834 enabling denization, a process that partially granted foreign citizens the rights of British subjects, most notably property rights. Denizens were not considered aliens, but could not pass subject status to their children by descent and were barred from Crown service and public office.
Naturalisation in Britain was achieved through individual Acts of Parliament until 1844, when a more streamlined administrative process was introduced. The Australian colonies emulated this system in their own naturalisation legislation, which every jurisdiction had adopted by 1871. In 1847, the Imperial Parliament formalised a clear distinction between subjects who naturalised in the UK and those who did so in other territories. Individuals who naturalised in the UK were deemed to have received the status by imperial naturalisation, which was valid throughout the Empire. Those naturalising in colonies were said to have gone through local naturalisation and were given subject status valid only within the relevant territory; a subject who locally naturalised in New South Wales was a British subject there, but not in the UK or Victoria. Nevertheless, British subjects who were locally naturalised in a colony were still entitled to imperial protection when travelling outside of the Empire.
Married women generally followed the nationality status of their husbands. Beginning with New South Wales in 1848, each colony enacted legislation that automatically naturalised foreign women who married British subjects, mirroring regulations enacted in the UK in 1844. After Britain established marital denaturalisation for British subject women who married non-British men in 1870, New South Wales adapted its rules to match this in 1875. The other Australian colonies did not adopt this in legislation but in practice, women who married foreign men were automatically stripped of British subject status throughout Australia.
The Federal Council of Australasia, created in 1885, was a first attempt at forming a unified governing body in the region and consisted of four Australian colonies, along with Fiji. Legislation passed by the Federal Council in 1897 allowed British subjects who had naturalised in a colony under its authority to be considered as naturalised in other such colonies.
Discriminatory policies against non-European migrants
Regulations regarding non-European migrants varied by colony but clearly favoured immigrants of European descent over members of any other ethnic groups. Queensland created two different sets of requirements in 1867 for naturalisation of "Asiatic and African aliens" and "European and North American aliens". Asian and African applicants seeking to become subjects were required to have lived in the colony for three years, and be married and living together with their wives. Chinese migrants were specifically targeted in colonial legislation that charged fees for entry to or residence in the colonies, and banned them from naturalising as British subjects. In 1889, entrance fees for Chinese in each of the Australasian colonies were standardised at £10; the exception was Queensland, which required £30.Post-federation policies
The Commonwealth of Australia was established on 1 January 1901, federating the six Australian colonies into a single union and replacing the Federal Council of Australasia, which was abolished in the previous year. The status of Australians as British subjects remained unchanged despite the creation of this union. Commonwealth nationality legislation enacted in 1903 superseded laws of the new states; naturalisation in one of the states became automatically valid in all of them.The federal government continued and extended restrictions on persons of non-European descent as part of its White Australia policy. The Immigration Restriction Act 1901 created the legal basis for administering dictation tests in any European language as determined by an immigration officer. Any person who failed was denied entry into Australia. While Māori from New Zealand technically fell under the exclusion criteria of this Act, the New Zealand government pressured the Commonwealth government into exceptionally relaxing restrictions for Māori. The Naturalization Act 1903 explicitly prohibited naturalisation of anyone with ancestry from Africa, Asia, or Oceania.
Imperial common code
The Imperial Parliament brought regulations for British subject status into codified statute law for the first time with passage of the British Nationality and Status of Aliens Act 1914. British subject status was standardised as a common nationality across the Empire. Dominions that adopted this Act as part of local legislation were authorised to grant subject status to aliens by imperial naturalisation. Australia adopted the common code in 1920.The 1914 regulations codified the doctrine of coverture into imperial nationality law, where a woman's consent to marry a foreigner was also assumed to be intent to denaturalise; British women who married foreign men automatically lost their British nationality. There were two exceptions to this: a wife married to a husband who lost his British subject status was able to retain British nationality by declaration, and a British-born widow or divorcée who had lost her British nationality through marriage could reacquire that status without meeting residence requirements after the dissolution of her marriage. Minor children whose parents voluntarily lost British subject status by renunciation or acquisition of a foreign nationality were considered to have automatically lost British nationality as well, but could resume their status as British subjects by declaration within one year of reaching age 21.
Australia's version of the common code regulations contained extensive measures for revoking British subject status from naturalised persons. Individuals who showed disloyalty to the monarch, were sentenced to imprisonment for at least one year or received a fine of more than £100 within five years of naturalising, had been deemed to be "not of good character" when subject status was granted, or lived outside of the British Empire for more than seven years were liable to have their naturalisation revoked.
Unlike the 1903 Act, the common code enacted in 1920 did not explicitly bar migrants on the basis of race. It instead allowed the government to deny naturalisation to any person without cause. Only 45 people of Asian descent were naturalised between 1904 and 1953. Migrants of non-European ancestry were effectively barred from permanent residency and naturalisation until 1957.
By the end of the First World War, the Dominions had exercised increasing levels of autonomy in managing their own affairs and each by then had developed a distinct national identity. Britain formally recognised this at the 1926 Imperial Conference, jointly issuing the Balfour Declaration with all the Dominion heads of government, which stated that the United Kingdom and Dominions were autonomous and equal to each other within the British Commonwealth of Nations. Full legislative independence was granted to the Dominions with passage of the Statute of Westminster 1931.
Women's rights groups throughout the Empire pressured the imperial government during this time to amend nationality regulations that tied a married woman's status to that of her husband. Because the British government could no longer enforce legislative supremacy over the Dominions after 1931 and wanted to maintain a strong constitutional link to them through the common nationality code, it was unwilling to make major changes without unanimous agreement among the Dominions on this issue, which it did not have. Legislative reform in 1936 allowed women in Australia denaturalised by marriage to retain their rights as British subjects, following a similar change enacted by New Zealand in the previous year and eroding imperial legal uniformity in that regard. Ireland also amended its laws in 1935 to cause no change to a woman's nationality after her marriage and Canada permitted women who had not acquired foreign nationality on marriage to retain their British nationality beginning in 1932.