Industry
groups,
including
Amnesty
1416
International
and the Australia Human Rights
Commission1417, have called for reform of Australia
law, including to:
SUB-REGIONAL OVERVIEW: THE PACIFIC
Australia
Laws
Citizenship Law
Jus sanguinis provisions
The citizenship law of Australia operates broadly through a jus
sanguinis structure with some variance in treatment based on
place of birth. The Australian Citizenship Act (2007) stipulates
that citizenship by birth is automatic for children born in the
territory of Australia to at least one citizen or permanent
resident parent.1408 A child born in Australia will be granted
citizenship if they are resident in Australia for 10 years following
birth.1409 For children born outside of Australia to an Australian
citizen parent the child is eligible for citizenship by application
but is not automatically considered a citizen.1410 At least one
parent must be an Australian citizen in order to be granted
citizenship by application.1411 Foundlings in Australia will be
granted automatic citizenship unless evidence proves their
nationality ties elsewhere.1412 Australia’s legislation defines a
stateless person as someone who does not have nationality
or citizenship of any country which places the burden of proof
on the stateless person and does not align with the definition
provided by the 1954 Stateless Convention.1413
The citizenship law of Australia operates broadly through a jus
sanguinis structure with some variance in treatment based on place
of birth.
A child born in Australia will be granted citizenship if they are
resident in Australia for 10 years following birth.
SUB-REGIONAL OVERVIEW: THE PACIFIC
abolish mandatory immigration detention in
favour 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.
In November 2023, the Australian High Court
ruled that indefinite immigration detention is
unlawful and unconstitutional in a landmark
decision.1420 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”.1421
There is a simplified citizenship by conferral process
available to stateless persons born in Australia
explicitly, outlined in the Citizenship Act.
Dual citizenship
Since April 2002, it has been permissible for
Australian citizens to acquire citizenship of
another country without losing their Australian
citizenship.1422 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.1423
Treaty ratification status
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.1419
1418
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.1424
Naturalized citizenship
There is a simplified citizenship by conferral process available
to stateless persons born in Australia explicitly, outlined in the
Citizenship Act.1414 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.1415 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
122
STATELESSNESS ENCYCLOPEDIA ASIA PACIFIC (DETAILED VERSION)
TABLE 32
Ratification of International laws relating to statelessness by the countries the Pacific
Country
Australia
✅
⛔
Stateless 1
✅
Stateless 2
✅
Refugee
Signifies that the country is a party to the convention
Signifies that the country is not a party to the convention
✅
ICCPR
✅
ICESCR
✅
ICERD
✅
CRC
✅
CEDAW
✅
Stateless 1 - 1954 Convention relating to the Status of Stateless Persons
Stateless 2 - 1961 Convention on the Reduction of Statelessness
REPORT 2024
123
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