Australia’s International Obligations The Australian Citizenship Act 2007 (Cth) (Citizenship Act) provides the legal framework for nationality in Australia. The two key international instruments that address the issue of statelessness are the 1954 Convention relating to the Status of Stateless Persons (1954 Convention) and the 1961 Convention on the Reduction of Statelessness (1961 Convention).15 ‘We are stateless – we have no country. This is very hard. In our home country we had nothing, our life was very difficult. We couldn’t do anything, go anywhere, choose our path.’ — Nur, stateless Rohingya mother of four Overview of Australia’s Legal Framework for Nationality and Statelessness Section 21(8) of the Citizenship Act provides that a person born in Australia who is not (nor has ever been) a citizen or national of a foreign country, and is not entitled to acquire citizenship or nationality of another state, is eligible for Australian citizenship.22 Australia has ratified both the 1954 Convention and the 1961 Convention, without reservation.16 Australia is also party to several international agreements that protect the rights of stateless persons and ensure the right to nationality, including: 1.1 Children born in Australia to parents who arrived by boat after 13 August 2012 are generally defined as ‘unauthorised maritime arrivals’ under the Migration Act 1958 (Cth).23 By virtue of this status, they are prohibited from applying for any form of visa in Australia unless the Minister for Immigration and Border Protection personally intervenes to allow them to make such an application, in which case they will only be eligible for a TPV or SHEV.24 Furthermore, Australian immigration law provides that those arriving on or after 19 July 2013 ‘must’ be removed to a regional processing centre (such as Nauru) as soon as is ‘practicable’, including shortly after birth.25 International Covenant on Civil and Political Rights (ICCPR). 17 Article 24(3) provides that every child has the right to acquire a nationality. 1.2 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).18 Article 5(d)(iii) provides that States Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee equality before the law in the enjoyment of the right to nationality. 1.3 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).19 Convention on the Rights of the Child (CRC).20 Articles 7 and 8 provide that a child will have the right, from birth, to acquire and preserve their nationality. 1.5 — Nur, stateless mother of four children Despite being classified as an ‘unauthorised maritime arrival’ at birth, stateless children can still preserve their right to apply for Australian citizenship under the Citizenship Act. Such an entitlement provides them with concrete rights to remain and participate in the Australian community (therefore preventing their mandatory removal to Nauru), far beyond the limited entitlements and protections they would receive under a temporary visa (TPV or SHEV). Article 9 provides that parties shall grant women equal rights with men to acquire, change or retain their nationality and with respect to the nationality of their children. 1.4 ‘Being stateless makes things challenging for us here. My children feel Australian – yet we are often reminded they are not. For example, our eldest child Iman started kindergarten this year. It was so difficult trying to enroll him – they asked about his passport, his visa, his status. I felt embarrassed having to explain he has no passport – no identity. No certainty of his future. Having citizenship will make it easier for him – for all of our kids.’ Convention on the Rights of Persons with Disabilities (CRPD).21 Article 18 provides that persons with disabilities have the right to acquire and change nationality and must not be deprived of their nationality arbitrarily or on the basis of disability. The Legal Framework 12 The Legal Framework 13