Evidence of Citizenship & Certificates

Australian citizenship certificates are applied for online through the Department of Home Affairs (DHA) website.

This step by step process is taken directly from the DHA website where further information and guidance can be found

To begin you will need to create an ‘ImmiAccount’

Individual

You can create an individual ImmiAccount if you are:

• an individual applicant
• a family member acting on behalf of an applicant
• a friend helping with the application process

Step 1: Enter your user details

Start an application for an Australian Citizenship Certificate

Before starting, check whether the applicant is eligible to apply or not.

1. Login in to your ImmiAccount
2. Select ‘New Application’
3. Select ‘Evidence of Citizenship’ from the Citizenship dropdown menu

1. You can ‘Save’ your application and continue anytime

1. Once complete, read and agree to the terms and conditions

1. Attach documents – these documents will depend on the information entered into the application
2. You will be required to attach the necessary documents before being able to lodge the application

1. Pay the application fee of AUD240.00
2. Submit the application
3. The DHA will be in contact with a decision on the applicatoin or they may request further information and/or evidence
4. It is important that this information is provided within the timeframe the DHA give
5. If the application has not been completed correctly or the information requested has not been provided the application may be refused

Information below is from the DHA ‘Pre Info Popup’ before making an application. Ensure you read through the information carefully.

Evidence for Australian citizenship online application process

We recommend anyone who believes they are an Australian citizen should have a copy of their Australian citizenship certificate

This is because citizenship laws have changed many times and in some instances, people who believe they are Australian citizens may not in fact be Australian citizens despite being born in Australia or having Australian parents.

For example, a person:

• may no longer hold Australian citizenship due to certain laws that applied during a particular time period
• may no longer hold Australian citizenship due to laws around dual citizenship, pre 4 April 2002
• may not be an Australian citizen despite being born in Australia
• may not be an Australian citizen because they were adopted by Australian citizen parents as a child but were never granted Australian citizenship
• may not be an Australian citizen because they were not included in their parent’s Australian Citizenship by Conferral applications whilst they were children

There are a number of different ways a person may have obtained Australian citizenship including:

• Automatic Acquisition: a child born in Australia may have acquired citizenship automatically at their birth or on their 10th birthday.
• Application by Conferral: a person may have received citizenship by conferral if they were considered a permanent resident prior to applying for and being granted Australian citizenship.
• Application by Descent: a person may have received citizenship by descent if they were born outside of Australia to an Australian citizen parent, made an application for and granted Citizenship by Descent.

See the Department of Home Affairs website for more information

• Confirms citizenship of people who cannot necessarily prove they are Australian citizens through other forms of official documentation e.g. birth certificate, Australian passport
• An official government document that proves you are an Australian citizen
• Used as evidence in certain situations such as applying for, or renewing an Australian passport
• Birth certificates of people born in Australia do not always prove a person is an Australian citizen
• At times Australian citizens may not be aware they no longer hold Australian citizenship due to past laws around dual citizenship
• Former Australian citizens may need to resume their Australian citizenship
• Note: Australian passports and Australian birth certificates are not always acceptable forms of evidence when trying to prove a person is an Australian citizen, due to various changes within laws over time.

https://immi.homeaffairs.gov.au/citizenship/become-a-citizen/become-citizen-againA child born in Australia to parents of any other nationality are an Australian citizen at birth if:

• The child has at least one parent that is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; or
• The child was born in Australia on or before the 19th August 1986 and meets any other prescribed criteria as set out in the Citizenship Act that existed at the time of the child’s birth

A child born in Australia to any nationality becomes an Australian citizen on their 10th birthday if:

• The child was born to parents who were not Australian citizens nor Australian permanent residents on or after the 20th August 1986 and were ordinarily resident in Australia for the first 10 years of their life

A child born in Australia to New Zealand citizen parents who are holders of the Special Category visa, subclass TY444 is an Australian citizen at birth if:

• Either of the child’s New Zealand parents were *eligible New Zealand citizens otherwise known as ‘Protected SCV’ holders; or
• The child has one parent that is an Australian citizen or Australian permanent resident; or
• If a child was born in Australia to New Zealand parents (‘exempt non-citizens’) on or before the 19th August 1986; or
• The child was born in Australia to New Zealand parents who held a SCV on or after the 1st September 1994, and on or before the 26th February 2001; or

(New rule as of 1 January 2023)

• If a child was born to a New Zealand citizen after 1 January 2022 and their parent/s had applied for and were granted the Subclass 189 (New Zealand Stream) visa they are an Australian citizen at birth

A child born in Australia to Special Category visa holders, subclass TY444 (New Zealand citizen parents) becomes an Australian citizen at on their 10th birthday if:

• The child was born to New Zealand parents on or after the 20th August 1986 and the 31st August 1994 and ordinarily resident in Australia for the first 10 years of their life

or

• The child was born to New Zealand parents who are not eligible New Zealand citizens and ordinarily resident in Australia for the first 10 years of their life

*eligible New Zealand citizen

An ENZC is someone who meets at least one or more of the following criteria:

• A NZ citizen who was present in Australia on 26 February 2001, held a subclass TY444 visa on that date and are still a New Zealand citizen

OR

• A NZ citizen who was not present in Australia on 26 February 2001, but was present in Australia for 365 days (or more) between 26 February 1999 and 25 February 2001 (inclusive)

OR

• Commenced (or recommenced) residing in Australia between 26 February 2001 and 25 May 2001 (inclusive) AND was assessed as a protected SCV holder AND was issued a Centrelink certificate that states you were living here at a particular time

Processing times vary from month to month but in our experience it can take anywhere from 1 day to 6 weeks to process.

​The Department of Home Affairs’ fee is $240 for each Citizenship Certificate.

• Yes, we are able to assist you with preparing and lodging an Evidence of Citizenship application on your behalf.
• We can provide a free Evidence of Citizenship assessment through our free callback service or by giving us a call on 0433 485 556 (Erina) or 0435 768 277 (Kathleen).
• Once we have assessed your situation we can provide you with an estimated cost for our services.
• If you wish to engage our services we will then provide you with a formal quote and Service Agreement to be signed followed by further instructions.

​If evidence is required to prove the first 10 years of residency, then you can include (but not restricted to):

• immunisation records
• school records  e.g. school reports or a letter from the school confirming years of enrolment up to the child’s 10th birthday

​For children who were citizens at birth, evidence of parents’ immigration status is required such as a copy of the parent’s:

• birth certificate
• Australian citizenship certificate
• permanent visa grant letter
• movement records

​All other supporting documentation may include:

• proof of address
• identity documents of the child/applicant and their parents e.g. birth certificates, passports, drivers licences, marriage certificate
• a passport sized photograph and a Form 1195 – Identity Declaration to be signed by a *suitable witness

*suitable witness must:

• off the list of prescribed occupations
• be an Australian citizen
• known the applicant for at least 12 months
• sign the back of the passport sized photograph
• complete Q. 2 & 3 of the Form 1195

Further details can be found on the Department of Home Affairs website.

Since 4 April 2002 Australian laws allows Australian citizens to hold dual or multiple citizenships. Other countries however, may not allow dual/multiple citizenships in which case a person may lose citizenship of their other country once they become Australian citizens.

• It is recommend that dual Australian citizens should travel in and out of Australia on an Australian passport
• It is also recommended that dual citizens enter other countries on their Australian passport

Note: Local authorities may not recognise a person is an Australian citizen which could limit their ability to access support from the Australian consulate should they need it

Once you receive a copy of your Australian Citizenship Certificate we recommend:

• Making multiple copies and storing it in various forms and places such as:
  • Printing off colour photocopies of the front and back of your certificate
  • Scanning and emailing a copy to your trusted email address/es
  • Storing digital copies in a cloud-based folder
  • Taking a photo or scanning it to your devices
  • Putting your citizenship certificate into a picture frame and placing it on a wall or somewhere safe

Do NOT laminate, write on or change any details on your Australian Citizenship Certificate

Article by Erin Handley, ABC News – 10 February 2023

Matthew Niall has always seen himself as Australian to the core, but he recently found out a decision to get an Irish passport more than 20 years ago led to him being stripped of his Australian citizenship.

On New Year’s Eve on the cusp of 2022, the Department of Home Affairs sent the 41-year-old an email that left him reeling.

It said it did not believe Mr Niall was an Australian citizen at all — and that he hadn’t been for the past two decades.

That’s despite voting in elections, travelling on his Australian passport, and getting Australian citizenship for his son in 2008.

It was because of a little-known law that saw adult Australians who got a second citizenship automatically lose their Australian citizenship.

The issue of lost citizenship could potentially affect thousands of people who may not even realise it, and it often only comes to the department’s notice when they apply for citizenship for their children.

Mr Niall, who was 19 when he got his Irish citizenship and passport, said he was blindsided and had no idea about the automatic loss of his Australian rights.

“It was devastating. It was horrible,” he said.

“If I’d known about this legislation, I never would have done it … It just felt like a nightmare.”

It’s now had distressing consequences for him and his family.

How did it go unnoticed for 20 years?

Mr Niall was born in Sydney and lived in Australia for the first 21 years of his life.

He had what he describes as a typically Australian childhood, full of weekends spent at the beach, which fostered a love of the outdoors and an adventurous spirit.

In part to connect with his grandfather’s Irish heritage, he applied for Irish foreign births registration and was granted his second citizenship in September 2001.

His Irish passport would later help Mr Niall travel and work in Europe.

Currently living in Copenhagen, Mr Niall said he always hoped to return to Australia, but circumstances kept him in Europe for the past two decades.

In his early 20s, he met a woman in Denmark and they had a son together, Alexander, who is now 16.

When the relationship ended, he chose to stay in the European nation to remain close to his son.

He later met a Swedish woman, Louise, and they now have two daughters, Ellie and Norah, aged three and one.

In late 2021, as pandemic border restrictions eased, he and Louise began taking steps to travel to Sydney, which included acquiring Australian passports for their young daughters.

But at that juncture, the Department of Home Affairs told him he had lost his citizenship.

Under section 17 of the 1948 Citizenship Act, an Australian citizen over the age of 18 who takes up a second citizenship “shall, upon that acquisition, cease to be an Australian citizen”.

That section previously required a person to be outside Australia when they acquired their second nationality, but it was amended in 1984 to include adults who got a second citizenship from within Australia, as Mr Niall did.

On April 4, 2002, about six months after Mr Niall got his Irish passport, that section of the law was repealed.

But it didn’t work retroactively or reinstate lost citizenships, leaving Mr Niall and his children in a quagmire.

He was given a window to prove he had not ceased to be a citizen and he requested time extensions to gather paperwork, which were initially granted, but in June last year, his citizenship was revoked.

With that, his passport was rendered invalid. He was no longer eligible for consular services overseas, and he lost his right to vote and his right of visa-free entry into Australia.

After scrambling to get Swedish passports for his daughters, the young family was eventually able to visit Sydney last year — before his passport was cancelled — but not without hassle and his parents lobbying their local politician about their son’s situation.

People who have lost their citizenship under this outdated law can apply to resume their citizenship, a process that carries a fee of $210 and requires a person to show they are of “good character”.

The processing takes an undisclosed amount of time.

The Nialls said they had spent hundreds of hours and thousands of dollars on a migration lawyer to try to resolve the issue.

There are also consequences for Mr Niall’s children. They can no longer get Australian citizenship by descent because Mr Niall was not technically a citizen at the time of their births.

Instead, they must apply for citizenship by conferral, which the minister must approve or refuse.

From their home in North Sydney, Mr Niall’s parents, Roz and Christopher, said it was inconceivable that their son was not Australian, and they said the ordeal had taken a toll.

“It’s ridiculous. It’s unbelievable really,” his mother said.

She said her husband had been conscripted into the Australian Army during the Vietnam War, and that two of Matthew’s grandparents had served in World War II and sustained lifelong injuries.

“My father was a Rat of Tobruk. Chris’s mum was a nurse in the army,” she said.

“I don’t think we could be more Australian.”

Is it legal to remove citizenship?

Kim Rubenstein, a legal scholar at the University of Canberra, said there was an underlying question about whether the automatic loss of citizenship was lawful, but had never been tested in court.

 ”The stripping and loss of citizenship is dramatic,” she said.

“It has significant consequences on people’s lives.

Article by Erin Handley, ABC News – 11 February 2023

Many people living, voting and paying tax in Australia may have technically been stripped of their citizenship and not even realise it.

It’s because of the now-repealed section 17 of the 1948 Citizenship Act.

Between 1948 and April 4, 2002, Australian adults who got a second citizenship automatically lost their Australian citizenship.

And between November 1984 and April 2002, they didn’t even have to be outside Australia when they took up their second citizenship to trigger the loss of their Australian rights.

That was the case for Matthew Niall, who had his Australian passport cancelled last year because he became an Irish citizen more than two decades ago.

His case has highlighted the plight of those caught in legal limbo, with experts saying it shows the “dysfunction” of our citizenship legislation.

So how did we get here, when can citizenship be stripped under the law, and what are some solutions?

Why was the law changed?

On April 4, 2002, the federal government repealed the law, saying at the time the change was needed to keep in step with a new globalised world.

Up to 700 Australians had been losing their citizenship each year.

Philip Ruddock, who was the immigration minister under the Liberal government, told the ABC he spearheaded the move to have section 17 repealed.

“The reason for the change was that there were people making representations to government,” he said, especially those who had returned to the UK and wanted the opportunity to take up British citizenship and travel more freely in Europe.

But Mr Ruddock said making the legal change apply retrospectively wasn’t something his government considered at the time.

To do so, he suggested, would be to “impose” Australian citizenship on people who “may have wanted to renounce it deliberately”.

The repeal also remedied an inconsistency in the law.

Between 1984 and 2002, a foreign-born person could take up Australian citizenship and keep their first nationality — if their country of origin allowed it — making them dual citizens.

But Australian-born people could not take up a second citizenship and keep their Australian citizenship.

Ignorance of the law ‘no excuse’

Mr Ruddock said at the time, the law operated as intended, and ignorance of the legislation was “no excuse”.

“You can’t speed on a road and say, ‘Oh, I didn’t know, I was ignorant. I didn’t know this was a speed limit on this road’.”

He said it was normally up to foreign governments to tell Australia if an Australian had been granted citizenship.

In Mr Niall’s case, “the approach that I would take is to encourage the young person involved, to seek to engage with the present government, with a view to ascertaining whether they can have their citizenship restored,” Mr Ruddock said.

Law ‘not at all clear’

Migration lawyer Karyn Anderson said she received a couple of clients each year who had lost their citizenship due to section 17 — and it can impact them in substantial ways.

She said it could become a “bureaucratic nightmare”, especially when trying to get citizenship for children — something that could be more complicated once they are over 18.

Article by Stefan Armbruster, SBS New – 1 August 2021

EXCLUSIVE: After a near five-year battle, Australian citizen Troy Lee has won a landmark legal case against the Department of Home Affairs and is now hoping for a seven-figure payout. This is how he went from doing a routine passport renewal to being threatened with statelessness and detention.

A father-of-seven who has lived in Australia for more than 40 years believing he was an Australian citizen has had his deportation order overturned in a landmark Federal Court ruling.

Article by Jan Gothard, The Conversation – 4 September 2019

Being born in Australia does not make you an Australian citizen.

The Tamil family with two Australian-born daughters on Christmas Island awaiting a decision on their future knows this only too well.

In some countries, such as the United States, children born there automatically become citizens of that country.

But in Australia, this isn’t the case.

In Australia, the automatic birthright to citizenship ended on August 19, 1986, under section 12 of the Australian Citizenship Act 2007.

Children born in Australia from August 20, 1986 are only Australian citizens by birth if, at the time of their birth, at least one of their parents was an Australian citizen or permanent resident.

If they meet this criterion, they can obtain a passport.

The Department of Foreign Affairs and Trade (DFAT), which issues Australian passports, says: “Only Australian citizens can be issued with Australian passports”, but the Department of Home Affairs sometimes has other ideas.

This has had a negative impact on children who might fall into the gap between the passport and citizenship requirements of these two government departments.

Most of the time, acquiring an Australian passport at birth, based on providing standard evidence of identity, like birth certificates, means citizenship for life.

In some instances, though, Home Affairs has the power to request, arbitrarily and with no explanation, that further evidence be provided to justify a child’s citizenship, even DNA testing.

DNA testing to prove citizenship

In one recent case our firm dealt with, the foreign mother of an Australian child who had an Australian passport was told she needed to produce evidence of citizenship for her son, even though he was born in Australia and his father had always held Australian citizenship.

She was required to obtain a “certificate of citizenship” from Home Affairs. And to get this, DNA testing was requested to prove the Australian citizen was indeed the biological father of the child in question.

But the mother’s relationship with the child’s father had broken down irreparably at the time of the child’s birth, and the father refused the DNA test.

DNA testing was not compulsory, Home Affairs advised. Other methods could be used to prove the relationship between the father and son was biological.

But the alternative social evidence recommended by Home Affairs, and supplied by the mother, included exhaustive personal, hospital, social work and government records.

They detailed the mother and child’s contact with the father and grandparents before and after the birth. This was still deemed “not sufficient”.

The outcome, Home Affairs advised, is that the child’s passport will be cancelled and the child will lose his status as an Australian citizen.

In another example, the father of a child in care, an Australian passport holder, was asked to do a DNA test as part of the process of obtaining a certificate of citizenship for the child.

He was estranged from the child and the mother, and so he refused. Home Affairs made its assessment of paternity based on that refusal, and the child’s passport and citizenship were cancelled.

Losing citizenship from ‘insufficient’ evidence

Citizenship can be revoked and a passport consequently cancelled in limited circumstances — mostly relating to criminal or security issues.

There is no provision in the Australian Citizenship Act 2007 for the cancellation of citizenship held by a child under 16 who became a citizen at birth.

Yet it is happening.

While investigating a mother’s circumstances, Home Affairs delegates have required children — Australian passport holders with citizenship acquired through their father — to verify their citizenship by obtaining “certificates of citizenship”.

In these recent cases, the evidence usually required to obtain such a certificate — relevant birth certificates linking the child to the father, and evidence of citizenship or permanent residence of the father at the time of birth — has been rejected as insufficient.

The common thread is the absence of the father, where family relationships have broken down.

The child is consequently caught in a bureaucratic tangle: their birth certificate identifying their father remains valid, but Home Affairs refuses to accept this.

Evidence of paternity can’t always be provided when families break down

For Home Affairs, sometimes the standard evidence of identity isn’t enough to justify a child’s citizenship.

And where a relationship has broken down, or if a father has moved on physically or emotionally from the child, there may be no way of providing biological proof of that paternity.

A child’s birth certificate signed at the time of birth by an Australian citizen father, or social evidence of a paternal relationship, can count for nothing here.

What’s disconcerting is the apparently unfettered right of Home Affairs to request additional evidence of citizenship from children who already hold Australian passports, granted following the normal protocols, without any need for Home Affairs to explain on what basis such information is sought.

This is at odds with the practice under the Migration Act 1958, which acknowledges principles of “natural justice”.

Cancelling children’s passports and withholding citizenship — effectively a consequence of their absent father and their parents’ inability to maintain a harmonious relationship — seems clearly unjust.

Refusing to accept certificates issued by state Registrars of Births, Deaths and Marriages, and overturning the capacity of the Department of Foreign Affairs and Trade to issue passports based on its own sets of rules, is yet another indicator of the enormous and — despite its denials — unchecked power of Home Affairs.

If birth certificates no longer suffice as evidence of paternity, perhaps we’ll all be looking at DNA testing in the future.

Jan Gothard is an adjunct associate professor of law at Murdoch University and a Registered Migration Agent (MARN 1569102). She works as a health and disability specialist for Estrin Saul Lawyers, Perth.The author wishes to thank Alice Graziotti, also of Estrin Saul Lawyers for her contributions to this article.

Article by Helen Davidson, The Guardian – 3 March 2019

Australia says it incorrectly issued passports after ‘administrative error’ more than 40 years ago

A catch-22 of citizenship laws has rendered an unknown number of PNG-born Australians temporarily stateless and fuming at the government’s failure to recognise their citizenship.

Thousands of people may be affected by the “administrative error” that Australia says resulted in citizenship certificates and passports being incorrectly issued over more than 40 years.

A situation that arose from a tangle of complicated citizenship law, bureaucratic bungling and tighter immigration rules has left people distressed at the loss of their identity, in fear of deportation and furious at the financial and emotional toll.

Until 1975, Papua New Guinea was administered by Australia, and people born in Papua (the south-eastern part of the island that was a commonwealth territory) were entitled to a level of Australian citizenship. At independence, those with at least two Papuan grandparents automatically acquired PNG citizenship. But in an unknown number of those cases the Australian government led people to believe they remained Australian citizens.

In 1994, to rectify that error, the government created special circumstances visas for such people, but neglected to inform them. Those with Australian passports simply renewed them without hindrance. But with the recent tightening of regulations requiring people renewing passports to prove their citizenship again, former Papuans who thought they were Australian have received a nasty shock, sometimes at the worst possible moment.

In February Vitoula Bird, the daughter of an Australian second world war veteran and a Papua New Guinean woman, and niece of the famed outback aviator Nancy Bird-Walton, was racing the clock.

She needed to travel to PNG within two days to visit an 81-year-old uncle who had had a stroke, but was told her life-long Australian citizenship was a mistake, and she had no visa which allowed her to be in Australia.

Bird was born in 1957. She and her family left PNG shortly before independence, spending 18 months in Europe before arriving in Australian in 1976. She said she had received her first Australian passport in 1974, and they had been issued consecutively until 2009.

In correspondence seen by Guardian Australia, the home affairs department told her the government had made an “administrative error” some decades back which led a “small number of people” born in Papua to believe they were Australian citizens when they were not.

“The department incorrectly issued you with evidence of your Australian citizenship on 20 September 1985,” it said, and asked her to return her now-voided citizenship certificate “as soon as possible”.

Bird was given two options: obtain a bridging visa, which would legalise her presence in Australia but not allow travel; or apply by post for a permanent residence return visa, at a cost of $375. Both would take some time.

“The government is denying me passage to go to PNG to visit my uncle who may be on his deathbed,” Bird told them. Her uncle died the following day.

At the same time Bird received a letter from PNG authorities informing her she was not a PNG citizen, because she had Australian citizenship. Each country insisted she didn’t belong to it, because both believed she belonged to the other.

Home affairs confirmed for the moment she was effectively stateless.

Bird’s case is not unique – her two sisters have been through the same experience, including one who served in the Australian Defence Force for 30 years.

“They’re putting us through hell,” Bird said. “After 40 years you’d think the government would recognise they made a mistake and the PNG government had made a mistake by not telling us we lost our rights in 1975.”

The scale of the problem is unknown but may involve thousands of people. The department has no numbers. Some cases have unsuccessfully gone to the high court, and some are included among the controversial “character test” deportations of people who have spent their lives in Australia.

At the time of the 2011 census, there were almost 27,000 PNG-born people living in Australia, more than 10,000 of them born before PNG independence.

Bird says she knows of several people who believe the Australian government has grown increasingly hostile to non-citizens and fear deportation.

Both Australia and PNG have said she is eligible for citizenship under their respective laws, she just needs to go through the process.

But it’s the process that has upset people.

“We’re faced with all these challenges and obstacles, and everyone is upset. They said they would fast-track [our applications] but that’s not the point,” Bird says.

She has started a Facebook group, Australian citizens born in Papua New Guinea, hoping it draws others out to seek support or to campaign for an amnesty.

“That would be the right thing to do … not [making them] pay for their citizenship and writing off their whole life,” she says.

“It’s caused so much stress. I know what it’s done to my family, but there are so many other people who probably haven’t had the outlets and support my family’s had.”

Bird has since been placed on a bridging visa to legalise her presence while she applies for citizenship.

The home affairs department told Guardian Australia determining the status of this cohort “can be complex as it involves the interpretation of both Australian citizenship law and the PNG constitution”.

The department said it was aware of the concerns among Australia’s PNG-born cohort and had set up pathways specifically for them “to regularise their status and apply for Australian citizenship”.

The department said current law did not allow for the creation of any amnesty, or applying retrospective citizenship, and that there was “no ability under the regulations to waive the fee for such cases”.

Article by Aaron Smith, NITV, 2 November 2018

A war hero’s daughter – who was born in Papua New Guinea – faces deportation and has gone into hiding.

Article by Nick O’Malley, SMH, 1 November 2018

Nancy-Bird Walton’s younger brother John was just 15 when the merchant ship he served on in World War II was torpedoed by Japanese submarine I-180 off the New South Wales coast. He was one of 19 survivors rescued by the USS Patterson and is the last of them still alive.

Ms Walton went on to become one of Australia’s most celebrated pilots, an Officer of the Order of Australia, and her name would one day appear upon Qantas’s flagship A380 aircraft.

Article by Jenny Magee, ABC News – 6 December 2017

Australia has lost nine Senators and two members of the House of Representatives since the July 2016 federal election.

And the uncertainty around citizenship and the eligibility of MPs and senators shows no sign of abating.

How did we get here and what comes next?

RMIT ABC Fact Check takes stock in this fact file.

The timeline

Until recent events, the last politician to be found ineligible for election to the Commonwealth Parliament was One Nation Senate candidate Heather Hill in 1998.

Ms Hill was ruled ineligible because she held dual citizenship of the United Kingdom and Australia.

But since the 2016 election, 11 Senators or MPs have resigned under a cloud or been found ineligible to sit in Parliament.

How did we get to this point?

Arguably, the saga began when members of the Government sought advice on the status of then Family First senator Bob Day.

Here are the key dates:

August 2016

Senator Day is contacted by then special minister of state Senator Scott Ryan to discuss issues regarding his electoral office, including rental payments.

Senator Ryan later consults Attorney-General George Brandis and Prime Minister Malcolm Turnbull and obtains legal advice.

October 2016

The Government refers the question of Mr Day’s eligibility to the Senate for further consideration.

Around the same time, Senator Brandis obtains a legal opinion about the eligibility of One Nation West Australian Senator Rod Culleton, raising it with the then Senate president, Stephen Parry (who has since resigned due to his own ineligibility).

November 7, 2016

Government senators push for the matters to be referred to the High Court.

January 10, 2017

Senator Culleton is removed from the Senate, having been declared bankrupt two weeks earlier.

April 6, 2017

The High Court rules Senator Day’s election invalid due to him having an “indirect pecuniary interest” through his ultimate ownership of a Commonwealth-funded electorate office.

July 14, 2017

Greens senator Scott Ludlam announces his resignation, revealing he is a New Zealand citizen.

“I was naturalised when I was in my mid-teens and assumed that was the end of my New Zealand citizenship,” he says.

Evidence subsequently given to the High Court indicates that Mr Ludlam became an Australian citizen when he was 19 years old.

July 18, 2017

Greens senator Larissa Waters announces her resignation after discovering she is also a citizen of Canada.

Ms Waters was born in Canada to Australian parents, which automatically made her a Canadian citizen under the law at the time.

July 19, 2017

Prime Minister Malcolm Turnbull is highly critical of the Greens, telling Adelaide Radio 5AA:

“It is extraordinary that two out of nine Greens Senators made that mistake.

I mean it’s not as though it’s a secret. It is in the Constitution. That’s one thing, but also when you nominate for Parliament there’s actually a question that says please … tick the box and confirm that you are not in breach of Section 44 and the various provisions that are set out there …

[T]hese two Greens senators were careless and they’ve paid the price for it.”

Mr Turnbull also tells Channel Nine’s Today show that Ms Waters and Mr Ludlam demonstrated “incredible sloppiness” and “extraordinary negligence”.

July 20, 2017

Mr Turnbull tells Melbourne radio:

“I don’t think it is unreasonable for the Constitution to require that if you want to be a Member or a Senator in the Australian Parliament, you should be a citizen of only one country and that’s Australia …
Now why somebody who knew they were born in New Zealand or in Canada would not have said: ‘Gosh, I better make sure I’m not still a citizen,’ why they wouldn’t have turned their mind to it and dealt with it, is beyond me.”

July 25, 2017

Liberal National senator Matt Canavan, the Minister for Resources and Northern Australia, announces he is stepping down as he may be an Italian citizen.

August 9, 2017

One Nation Senator Malcolm Roberts is referred by the Senate to the High Court on the suspicion that he was a British citizen at the time he nominated for Parliament.

August 14, 2017

Deputy prime minister Barnaby Joyce reveals that he may a citizen of New Zealand.

August 17, 2017

Deputy Nationals leader Senator Fiona Nash announces that she may be a British citizen; the matter is referred to the High Court.

August 18, 2017

Crossbench senator Nick Xenophon claims that he may be a British overseas citizen.

September 20, 2017

Justice Patrick Keane of the High Court finds that Malcolm Roberts was a British citizen at the time he nominated for the Senate.

October 27, 2017

The High Court finds that Mr Ludlum, Mr Roberts, Mr Joyce, Ms Nash and Ms Waters were all ineligible to stand for Parliament as they held citizenship of another country at the time they nominated.

October 31, 2017

Senate president Stephen Parry says that he may be a British citizen because his father was one. He resigns from the Senate the following day.

November 11, 2017

Liberal MP John Alexander resigns after days of speculation about his citizenship status, confirming he may be a British citizen by descent (through his father).

The Liberal Party is reported to have obtained legal advice, seen by the media, suggesting that two Labor MPs — Justine Keay and Susan Lamb — and the Nick Xenophon team MP Rebekha Sharkie are ineligible as they did not complete the British citizenship renunciation requirements by the time they nominated.

November 13, 2017

The Senate agrees to create a citizenship register. The deadline for senators to submit declarations regarding their citizenship and background is set for December 1.

November 14, 2017

Independent senator Jacqui Lambie resigns from the Senate, as she is a British citizen by descent.

She says that her grandfather “hadn’t, in fact, renounced” his British citizenship.

Ms Lambie says “This makes my dad a Brit by descent and, therefore, it makes me one too”.

In fact, Ms Lambie’s father was also born in the UK, meaning it was her, not her father, who was a British citizen by descent.

November 22, 2017

Nick Xenophon Team senator Skye Kakoschke-Moore resigns from the Senate.

She is a British citizen by descent — her mother was a British citizen and Ms Kokoschke-Moore was born after January 1, 1983.

Previously, women did not automatically pass British citizenship to daughters born before 1983.

December 4, 2017

The House of Representatives creates its own citizenship register, with members required to provide information about their citizenship and background the following day.

December 6, 2017

Labor senator Katy Gallagher refers herself to the High Court to assess her eligibility to sit in Parliament.

Senator Gallagher’s mother was born in Ecuador to British parents and her father was born in the United Kingdom. She herself was born in Australia.

Documents provided to the citizenship register show she that she lodged an application to renounce her British citizenship with the UK Home Office before the 2016 election, but did not receive confirmation of the renunciation until August 16, two months after nominations closed.

What has been the law?

Section 44(i) of the Australian Constitution deals with the disqualification of members who hold citizenship of another country or have an allegiance to a “foreign power”.

It states that any person who:

(i) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power…shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Professor John Williams of the University of Adelaide Law School tells Fact Check:

“Section 44 in general is about conflicts of interest. You cannot work for the Government and run for Parliament, you cannot have a financial relationship with the Government, you cannot be a bankrupt (a reflection on your standing the framers assumed), not a convicted person and lastly not a citizen of another country. There is some logic to it.”

Before the current citizenship debacle, the High Court had closely considered section 44(i) on two occasions: the 1992 case Sykes v Cleary and the 1999 case Sue v Hill.

The former is the more important case and was followed closely by the High Court in its recent judgment.

Independent candidate Phil Cleary, previously a schoolteacher, had been elected to the House of Representatives, but his eligibility was challenged on the basis that he had held an office of profit under the Crown (as he was on leave at the time from his government school).

The second-placed (John Charles Delacretaz) and third-placed (Bill Kardamitsis) candidates were Australian citizens, had been born in Switzerland and Greece respectively and had not gone through the formal renunciation processes required by those countries.

The majority of the court (five out of the seven judges, with Justices William Deane and Mary Gaudron dissenting) found that a citizen who is a subject or citizen of a foreign state had to take all reasonable steps under the foreign state’s laws to renounce that nationality, before being eligible to stand for election in Australia.

And what is reasonable?

Justice Daryl Dawson, part of the majority, stated:

“What is reasonable will depend upon the circumstances of the case.

It will depend upon such matters as the requirements of the foreign law for the renunciation of the foreign nationality, the person’s knowledge of his foreign nationality and the circumstances in which the foreign nationality was accorded to that person.”

Justice Deane took a different view, suggesting that an Australian-born citizen should only be disqualified if “he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power”.

What is a foreign power?

Since the latest controversy erupted, some have suggested that section 44(i) of the constitution is out of date and should be changed.

Interestingly, it is not the constitution but its interpretation that has changed over time: in the past, the same section 44(i) would probably not have disqualified citizens of Britain or Commonwealth countries such as Canada or New Zealand.

There was no separate Australian citizenship until 1948 and until 1987 Australian citizens continued to be described in law as “British subjects”.

But the law as it stands today, as set out in the 1998 case of Sue v Hill, is that any citizenship of a country other than Australia is citizenship of a “foreign power”.

Professor Kim Rubenstein of the Australian National University Law School has previously told Fact Check:

“A couple of generations ago, members of Parliament would have been able to hold both British and Australian nationality.

“But given the decision in [Sue v Hill], we know at some point this ceased to be the case.”

In its decision, the court could not say precisely when Britain became a “foreign power”, but it accepted that this was probably the case by the mid-1980s.

Professor Anne Twomey of the University of New South Wales Law School has previously told Fact Check:

“The High Court has not so far clarified the time at which the change re: foreign allegiance and the UK was actually made.

“It may be that it can pin it to a date … but because that was unnecessary in Sue v Hill, the justices did not try very hard to get agreement on the date (and did not have that issue fully argued before them).”

“However, this was the factor that aggravated Callinan, as he found it most unsatisfactory that such a change could be made, affecting the rights and status of people, without anyone knowing or being able to identify what had caused it.”

Former MP John Alexander’s situation demonstrates the changing nature of Australian nationality.

Mr Alexander’s father was born in the UK in 1907 and came to Australia around 1910, aged three.

At the time he migrated to Australia (and for the next 41 years), there was no such thing as Australian citizenship.

His British nationality did not make him a foreigner or someone with allegiance to a “foreign power”.

John Alexander’s father may have been able to renounce his British nationality between 1948 and 1951 (the year when his son was born).

But given that both British and Australian nationals at the time were deemed “British subjects”, taking action to renounce British nationality in favour of an Australian one would have been unusual.

The changing legal interpretation of “foreign power” also suggests that had Mr Alexander entered politics in the 1970s when in his 20s, he may have been ruled eligible to stand even while retaining British nationality.

The latest decision

Unlike the earlier decisions on section 44(i), the High Court’s latest decision was a strong and definitive one: there were no dissenting judgments.

Although it was open to the court to decide however it wished, it closely followed the reasoning of the majority in the Sykes v Cleary decision.

The High Court apparently aimed for an outcome that gave certainty and stability.

Some key points:

• The key is the date of nomination. All reasonable steps to renounce other citizenship have to be taken by that date.

• Ignorance is no excuse: a person will be caught by section 44(i) even if they were unaware they had dual citizenship. The court said:

  “[T]o accept that proof of knowledge of the foreign citizenship is a condition of the disqualifying effect of s 44(i) would be inimical to the stability of representative government.

  “Stability requires certainty as to whether, as from the date of nomination, a candidate for election is indeed capable of being chosen to serve, and of serving, in the Commonwealth Parliament.”

• A person does not need to have sought out foreign citizenship. The court rejected the view of former Justice William Deane in Sykes v Cleary that section 44(i) should be limited to cases where the “relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”.

  It said “the approach taken by Deane J draws no support from the text and structure of section 44”.

• A candidate needs to go to the effort of finding out their citizenship status. The court said:

  “[W]hile it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s44…

  “In the nature of things, those facts must always have been knowable.”

  “A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.”

• Whether a person is a citizen of foreign country is “as a general rule, answered by reference to the law of that country“.
• All reasonable steps have to be taken under the relevant foreign law — it is not enough to make a “reasonable effort”.

Adelaide’s Professor Williams tells Fact Check that he was “not surprised” by this finding.

“The court was mainly responding to an argument put by the Attorney-General that the ‘reasonable’ steps only took hold once you became aware of your entitlement,” he says.

“That argument was firmly rejected.”

The ANU’s Professor Rubenstein, similarly, says she was “not surprised at all”.

“The decision was entirely consistent with Justice Brennan’s judgment in Sykes v Cleary — just a clearer explanation of what was already the law.”

How did Senators Canavan and Xenophon survive?

In essence, Senators Canavan and Xenophon survived because the court concluded that they were not citizens of a foreign power.

Senator Canavan’s entitlement to Italian citizenship arose through his maternal grandparents, who were born in Italy.

Italian citizenship is not bestowed automatically and since Mr Canavan did not complete the registration process, the court found he was not an Italian citizen.

Senator Xenophon does have “British overseas citizenship”, which is a residual citizenship available to some people from former British colonies.

It is of little practical use and does not allow holders to live or work in the UK.

The court found that it did not confer on Senator Xenophon the typical rights of citizenship and did not require him to declare an allegiance to a foreign power.

How did the Government get it so wrong?

If the experts were unsurprised by the result, why did the Government get it so wrong?

Before the High Court handed down its decision, the Prime Minister outwardly demonstrated confidence in a favourable result and on one occasion actually predicted (incorrectly) what the High Court would do.

The Government told the public that it had strong legal advice from the Solicitor-General.

On August 14, Mr Joyce told Parliament:

“The Government has taken legal advice from the Solicitor-General.

“On the basis of the Solicitor-General’s advice, the Government is of the firm view that I would not be found to be disqualified by the operation of section 44 of the constitution from serving as the member for New England …

“Given the strength of the legal advice the Government has received, the Prime Minister has asked that I remain Deputy Prime Minister and continue my ministerial duties.”

In Question Time, Prime Minister Malcolm Turnbull said

“Based on the advice we have from the Solicitor-General, the Government are very confident that the court will not find that the member for New England is disqualified from being a member of this House — very confident indeed.”

And then later, the Prime Minister added “The Leader of the National Party, the Deputy Prime Minister, is qualified to sit in this House, and the High Court will so hold”.

On August 31, the Prime Minister said:

“[B]ased on the advice we have from the Solicitor-General, we are confident that the three ministers and Senators Canavan and Nash and the [Deputy Prime Minister] Barnaby Joyce will be found to be qualified to sit in the Parliament.”

And on Sky News on September 7, Mr Joyce said:

“The Solicitor-General’s advice was, basically, they said you’re more than likely to win.”

What did the Solicitor-General’s advice say?

Either the Solicitor-General’s advice was wrong, or that advice was misrepresented by the Government.

In view of its importance to the citizenship debate, Fact Check lodged a freedom of information request for the document on September 7, 2017.

By law, the Attorney-General’s office had to respond within 30 days of the request (October 8) unless granted an extension of time.

A response arrived on October 30 — three days after the High Court’s decision — with no explanation given for the delay.

Access had been denied on the basis that the advice was subject to legal professional privilege.

Fact Check has appealed the FOI decision to the Australian Information Commissioner, but understands there is a six-month backlog of cases, meaning a ruling on access to the Solicitor-General’s advice would appear unlikely before mid-2018.

Who’s next?

There are at least six more politicians under a cloud over citizenship issues: Labor’s Justine Keay, Josh Wilson, Katy Gallagher, David Feeney and Susan Lamb and the Nick Xenophon team’s Rebekha Sharkie.

Based on existing court rulings, candidates in the 2016 federal election needed to have renounced any foreign citizenship by June 9, 2016, the closing date for nominations.

• Ms Keay, a Tasmanian MP, says that her renunciation of British citizenship was received by the UK Home Office on May 31, 2016. However, the UK did not provide confirmation of renunciation until July 11, 2016, which was after the 2016 federal election.
• Mr Wilson, a Western Australian MP, completed a renunciation of British citizenship form on May 12, 2016 and sent it to the Home Office on May 13, however it was only registered on June 24, 2016.
• Senator Gallagher also reportedly made her British citizenship renunciation application prior to June 9, but only received a response in August 2016.
• Ms Sharkie apparently made a renunciation application on April 19, 2016, but only received confirmation on June 29, 2016.

Mr Feeney is in a different situation. According to his statement in relation to citizenship filed with the House of Representatives on December 5, his father was born in Belfast, Northern Ireland, which is part of the United Kingdom.

This means that Mr Feeney may have citizenship of both the United Kingdom and the Republic of Ireland.

Mr Feeney claims to have renounced any entitlement to either citizenship in October 2007, but as at time of writing has not provided any proof of doing so.

For Ms Lamb, a Queensland MP, the situation is different again.

According to her October 2016 maiden speech to Parliament, her father was born in Scotland, UK.

Under British nationality law, she is a British citizen by descent as her parents were married at the time she was born (March 23, 1972).

Ms Lamb claims that she applied to renounce her British citizenship in May 2016 by completing and sending off the required form.

The form itself does not include a section for details of how the applicant obtained British citizenship (for example, by descent).

The British Home Office’s guidance notes for renunciation applications state: “If you have your citizenship or status through descent from a parent or grandparent, you should send documents proving that person’s citizenship or status and your relationship to him or her.”

However, according to Ms Lamb’s statement in relation to citizenship (provided to the House of Representatives citizenship register on December 5, 2017):

• Ms Lamb “did not enclose any evidence with the Form”.
• On or around July 7, 2016 the UK Home Office informed Evan Moorhead, the Queensland State Secretary of the ALP, that “in order to process [Ms Lamb’s] application they required her birth certificate, her father’s birth certificate and her parents’ marriage certificate”.
• On August 1, 2016, Mr Moorhead forwarded the birth certificates of Ms Lamb and her father to the Home Office.
• On August 10, 2016, the Home Office wrote to Ms Lamb refusing the renunciation application. The letter stated that the office “cannot be satisfied from the documents available that you hold British citizenship”.

It has been reported that Ms Lamb could not provide her parents’ marriage certificate as she is estranged from her mother.

However, it is usually possible for a third party to obtain proof of divorce.

It is unclear if Ms Lamb has exchanged any further correspondence with the Home Office, or if she has made any further renunciation attempts since August 2016.

If (as seems likely based on publicly available information) Ms Lamb obtained British citizenship by descent at birth, she continues to be a British citizen until she successfully completes a renunciation through the Home Office.

A spokesman for Ms Lamb would not provide any further clarification beyond her initial public statement, when asked by Fact Check.

Where does the latest decision leave these six parliamentarians?

The court will have to decide whether all reasonable steps have been taken by the six parliamentarians to renounce their foreign citizenship.

In the cases of the Ms Keay, Mr Wilson, Senator Gallagher and Ms Sharkie, there was nothing further that they could do to renounce their British citizenship — all that was left was to wait for confirmation of renunciation from the UK Home Office.

Mr Feeney’s case will likely rest on the evidence he can provide of his purported October 2007 renunciations.

In relation to Ms Lamb, it may come down to whether “all reasonable steps” included efforts to obtain the supporting documentation.

Given that many other politicians have been able to provide such documents to the Home Office — and the High Court found in this year’s case that “reasonable efforts” are not enough — the court may want to see some unique reasons for Ms Lamb’s apparent failure to provide said documents.

What is the Parliament doing?

On November 13, 2017, the Senate agreed to create a citizenship register, with senators needing to provide information about their citizenship and background by December 1.

This information was to include a declaration about the place and date of birth of the senator, their parents and grandparents, and any proof of renunciation of foreign citizenship.

Senators providing false information would be in contempt of the Senate and “shall be dealt with by the Senate accordingly”.

A similar disclosure regime was introduced to the House of Representatives on December 4, with responses due the following day.

The registers will be maintained for all future MPs.

However, the disclosure regime is not expected to protect existing MPs and Senators who failed to comply with section 44 of the constitution.

In these, and subsequent cases, the High Court will remain the final arbiter.

If the Parliament refuses to refer someone to the court, a member of the public can do so, and claim $200 a day for attending the hearing.

Article by Marian Faa, ABC News – 7 September 2022

The Australian government is under pressure to urgently resolve a legal grey area that is seeing some Indigenous people unable to work or access government services for years.

In late July, Attorney-General Mark Dreyfus dropped a legal case in which the previous government sought to challenge a High Court ruling that Indigenous non-citizens could not be deported.

The Love and Thoms judgement, handed down in 2020, applies to Aboriginal and Torres Strait Islander people who do not hold citizenship because they were born overseas.

It found powers in the Migration Act to deport people who have committed serious crimes do not apply to Indigenous non-citizens because they are not considered “aliens” in the constitution.

Indigenous rights advocates have welcomed the decision to drop the challenge, but said legislative reform is needed to give full effect to the landmark judgement.

Deputy director of the UNSW Indigenous Law Centre Dani Larkin said Indigenous non-citizens had been living with crippling uncertainty for years.

Article by Eamonn Duff, The Sydney Morning Herald – 25 June 2016

Teresa Mullan has lived in Australia for more than half a century. During that time, she has raised children here, worked for three governments, voted at 10 federal elections and travelled the world on an Australian passport.

But when she tried to renew that passport ahead of an overseas holiday next month, she was refused a replacement because she could not prove she was an Australian citizen.

Fairfax Media has found that, on the instruction of the Department of Immigration and Border Protection (DIBP), adoptees born overseas can no longer present their Australian birth certificate, issued as part of the adoption process, as lawful evidence of citizenship.

Neither the Department of Foreign Affairs and Trade nor the DIBP would provide reasons for the changes when asked by Fairfax Media last week.

But those amendments, now being applied by the Australian Passport Office, mean there are potentially thousands of inter-country adoptees who assume they are bona-fide citizens but are now not regarded as one, even though they have held passports.

Ms Mullan likened the situation to a bad comedy sketch that has left her feeling humiliated and demoralised.

“This is yet another example of our ill-conceived and inhumane immigration and border protection laws,” Ms Mullan said. “After 52 years, am I somehow now a threat to national security? I feel as though my country has stripped me of my nationality and identity. This experience just highlights the government’s disregard for the sanctity of citizenship.”