Dual or multiple citizenship in Australia

From the inception of the Australian Citizenship Act 1948 (Commonwealth) until 4 April 2002, there was a provision mandating loss of Australian citizenship for a person who acquired a new citizenship. This was found in Section 17 of the act (‘Loss of citizenship on acquisition of another nationality’). ^[29]

Section 17 and the deterrence of dual citizenship was one of the most contested and contentious areas of the Australian Citizenship Act 1948 (Cth). Dual citizenship was the subject of a 1976 review by the Joint Committee on Foreign Affairs and Defence and it was also considered in the context of the national consultations on multiculturalism and citizenship conducted in 1982. Then, two further reviews considered the worthiness of s. 17, ^[30] and a related parliamentary review of s. 44(i), which disqualified dual citizens from becoming Members of Parliament, also considered related policy matters.^[31]

At one level there was a basic inequality in the system. When citizens of another country became Australian citizens, the approach in practice had varied. The pledge taken upon becoming an Australian citizen has changed over the years. Between 1966 and 1986 the words included ‘renouncing all other allegiance’.^[32]

However, this wording had no legal consequence for their status as citizens of the other country. As a matter of international law, it is a question for the country which bestows citizenship to determine whether someone loses that citizenship—it is an incident of sovereignty of that nation-state. The leading case on the question of nationality for the purpose of diplomatic protection is the 1955 Nottebohm case.^[33]

The High Court of Australia confirmed this in Sykes v. Cleary, ^[34] in which two of the people running for Parliament, and whose positions were challenged, were citizens of other countries, Greece and Switzerland, and therefore ineligible under s. 44(i) of the Australian Constitution.

The issue of dual citizenship became quite central to the deliberations of the Australian Citizenship Council. In August 1998, the Howard Government established the council as an independent body to advise it on Australian citizenship matters. In a report at the end of 1999, later published as Australian Citizenship for a New Century, the council made 64 recommendations including the repeal of Section 17. Considering matters such as globalisation, the Australian Citizenship Council stated:

This recommendation was acted upon by the government and implemented in the 2002 amendments to the act, which were then enhanced by the 2007 reforms to which discussion now turns.

Howard Government policy reforms in 2007

In 2007, the Howard Government introduced two separate pieces of legislation on citizenship that had different policy objectives. The first was the repeal of the 1948 statute with a new Australian Citizenship Act 2007. The second (and after the first was fully implemented) was an amendment to the new act introducing more elaborate citizenship testing.

The 2007 act

The Australian Citizenship Act 2007 came into force on 1 July 2007. As the Reader’s Guide to the new act outlines, ^[36] the origins of the 2007 act lie with the former Australian Citizenship Council (the council). In its report at the end of 1999, referred to above, within its 64 recommendations was ‘Refining the structure of the Australian Citizenship Act 1948’. ^[37] The 2007 act’s origins lie with that recommendation.

While all the other substantive changes to the 1948 act recommended in the council’s report (such as the repeal of Section 17 of the former act to allow for dual citizenship) were implemented in legislation in 2002, this last recommendation to ‘tidy up’ the act ‘to improve presentation so it is logically organized, numbered and consistent, with relevant matters dealt with together, and ensuring the balance of matters dealt with between the Act and the Regulations conforms to modern standards’ was implemented with the passage of the Australian Citizenship Act 2007 (the new act).

The act has a more logical structure, including terminology that is more accessible and changes complementing the policy rationale of the 2002 amendments, as well as some further changes to assist Australia in better responding to the threat of terrorism. ^[38]

The most significant change from the perspective of this article emanating from the report was the 2002 repeal of s. 17 of the original citizenship act. The new 2007 act extended that inclusive approach to Australian citizenship in various ways, including broadening the resumption of citizenship provisions and the extension of citizenship by descent to children of people who had lost their Australian citizenship.

These latter changes were part of the package that could be referred to as inclusive; they were including in the Australian community many people who had often seen themselves as Australians, but had not been recognised formally in law as such, and importantly for our discussion of blended identity, included dual citizens in the fullest legal sense. However, very soon after the passage of the new legislation, an amendment act, which was introduced before the core legislation, was passed,^[39] underpinned by a less inclusive policy approach to Australian citizenship, as set out below.

Citizenship testing

Before the 2007 citizenship test reforms, citizen-by-conferral applicants generally had their language ability assessed at interview, though there was no standardised or objective test of English language proficiency.^[40] There was no formal written citizenship knowledge test administered, save for applicants needing to demonstrate at interview a satisfactory understanding of the rights and responsibilities of Australian citizenship. Citizenship applicants then needed to make the Citizenship Pledge (see below).

Following the passage of the Australian Citizenship Amendment (Citizenship Testing) Bill 2007, the minister can require certain applicants to sit a formal citizenship test (which may include English language testing as well as civics knowledge testing).^[41] A review of the amendment act is thoroughly canvassed in the Parliamentary Bills Digest.^[42] As part of the new administrative system, a resource book is available for prospective applicants to read,^[43] and from which information is available that will assist applicants in answering the randomly selected questions drawn from a secret set.

The department publishes Citizenship Test Snapshot Reports on a regular basis.^[44] The latest information about the testing reveals some form of substantive discrimination against test applicants from the humanitarian migration stream. The reporting from the Department of Immigration and Citizenship indicates that between 1 October 2007 and 30 June 2008, 48 713 individuals sat the citizenship test and 46 500 (or 95.5 per cent) passed it on their first or subsequent attempt.^[45] The pass rate (on first or subsequent attempt) for applicants who came to Australia under the Skilled Stream of the Migration Program was 99 per cent compared with 92 per cent for those who came under the Family Stream and 82 per cent for those applicants who came under the Humanitarian Program. Also, the average number of tests needed to be taken before passing per applicant appears greater for humanitarian (1.8) compared with family (1.3) and skilled migrant (1.1) applicants. The number of test applicants from each migration stream is as follows: skilled (48 per cent), family (22.2 per cent) and humanitarian (11.3 per cent).