Chapter 2: Legal framework 2.1 International framework for addressing statelessness As outlined above, the 1954 Convention and the 1961 Convention are the two key international instruments that address the issue of statelessness. The 1954 Convention defines statelessness and establishes a protection framework for stateless individuals. A stateless person is defined in Article 1(1) of the 1954 Convention as “a person who is not considered as a national by any State under the operation of its law.” This definition has been held to be part of customary international law by the International Law Commission.14 Persons who meet the Article 1(1) definition are entitled to the protections guaranteed under the 1954 Convention which include the obligation on contracting States to facilitate naturalisation for stateless people lawfully within the territory. While the 1954 Convention protects stateless people, the 1961 Convention’s objective is the reduction of statelessness by requiring states to establish safeguards aimed at reducing and preventing statelessness. As stated above, Australia ratified both the 1954 Convention and the 1961 Convention in 1973 without reservation. Australia is also party to several international treaties that ensure the right to nationality and protect the rights of stateless people. These include: a. The International Covenant on Civil and Political Rights (ICCPR)15: Article 24(3) provides that every child has the right to acquire a nationality. b. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)16: 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. c. The Elimination of All Forms of Discrimination against Women (CEDAW)17: 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. d. The Convention on the Rights of the Child (CRC)18: Articles 7 and 8 provide that a child will have the right, from birth, to acquire and preserve their nationality. e. The Convention on the Rights of Persons with Disabilities (CRPD)19: 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 UNHCR has the mandate to identify and protect stateless people and to prevent and reduce statelessness. Through its #IBelong Campaign from 2014–2024 the UNHCR sought to raise awareness and mobilise international action on addressing statelessness. A new initiative, the Global Alliance to End Statelessness, was launched in 2024 to continue this important work. 2.2 Domestic legal framework for addressing statelessness in Australia 2.2.1 Legal framework for nationality Citizenship is not defined under the Australian Constitution nor does Australia have a National Bill of Rights.20 The Citizenship Act provides the legal framework for nationality in Australia. Under this legislation, citizenship can be obtained by automatic acquisition,21 or by application.22 Automatic acquisition of citizenship for people born in Australia is limited to certain criteria stipulated in Section 12(1) of the Citizenship Act: a. a parent of the person is an Australian citizen, or a permanent resident, at the time the person was born; or b. the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born. Australia has no formal statelessness determination procedure and there is no legislative definition of ‘statelessness’ under Australian law. However, statelessness assessment processes are relevant in key areas of Australian law. In the citizenship context the most significant is in relation to section 21(8) of the Citizenship Act, which 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, is eligible for Australian citizenship. The intention of the Australian Parliament in including s 21(8) was to ensure Australia’s obligations under the 1961 Convention were met by ensuring that no-one born in Australia remains stateless.23 However, the legislative framework does not account for stateless people who were not born in Australia, or who previously possessed citizenship from any country which has been revoked or otherwise lost. Furthermore, even when a person has a strong prima facie entitlement to Australian citizenship under s 21(8), they are likely to experience significant delays and administrative barriers throughout the application process.24 This is because there are no mandated timeframes for the acquisition of citizenship even when all criteria are met, and the final determination is based on the discretion of the Minister for Immigration and Citizenship (the Minister).25 The Department of Home Affairs (DHA) has internal guidelines providing guidance and policy instructions aligned with the relevant provisions outlined in the Citizenship Act 2007, designed to support citizenship processing officers and decision makers. The ‘Citizenship Processing Instructions’ (CPI) outline three pillars (biometrics, documents, life story) that guide the identity assessment. These pillars are not to be addressed in isolation but are intended to allow for a comprehensive evaluation of the applicant’s claims about their identity. CPI 16 provides an overview of what it means to reach a state of satisfaction as to a person’s identity, grounded in an exercise Understanding Statelessness in Australia | Peter McMullin Centre on Statelessness 17