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VIC Is Australian Citizenship at Birth Valid?

Discussion in 'Immigration Law Forum' started by Philip Heiner, 28 June 2015.

  1. Philip Heiner

    Philip Heiner Active Member

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    Recent public discussion on Australian citizenship restricts to how aliens or children of aliens may acquire it, and whether government should have power to cease it on a discretionary decision. Less public is discussion on whether Parliament can define the rights and obligations of citizenship without power sourced from the Constitution. But the more serious problem overlooked for over 60 years is:

    Is citizenship at birth constitutionally –valid? Citizenship acquired at birth includes all born in Australia and born to an Australian parent.

    Prior to 1948, a natural-born British subject was determined by UK Parliament law. The Constitution did not duplicate a power to Australian Parliament to make similar laws and none has been granted since. The Australian Nationality and Citizenship Act 1948 introduced the Australian-born citizen at the same time the UK Parliament repealed laws determining nationality of those born in Australia. But Australian Parliament had no source of power to make law to determine conditions for acquisition or loss of nationality at birth. Parliament was limited to making laws on naturalization and aliens, and immigration and emigration, but none for citizenship at birth. It seems either the UK Parliament exceeded its power prior to 1948, or the Australian Parliament after. This affects every Australian born after 1948 in Australia or to an Australian parent.

    Australian citizenship relies on a faith in government to overlook the vulnerability that will remain until the Constitution is amended. But the way forward is treacherous. The Constitution does not prevent a future government deciding citizenship at birth is not valid and to call a referendum to make amends. The conundrum is the Constitution does not assure the Australian-born a right to vote and it may be an valid citizenship is reason to deny a vote. That leaves the fate of the Australian-born in the hands of a decision made only by naturalized Australians: not born in Australia and not to an Australian parent. Notably the most recently elected PMs are naturalized.
     
  2. Philip Heiner

    Philip Heiner Active Member

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    Official Record of the Debates of the Australasian Federal Convention, Third Session, Melbourne, 2 March 1898, vol. II, pp 1750, 1754. Mr O’Connor: “I think it would be a mistake to give to the Federal Parliament the power of determining the qualifications of citizenship under the Commonwealth.” “the Commonwealth has abundant power to legislate as regards those who come from outside, and it cannot legislate, even if you put such a power as this in, as regards those who are here already.ParlInfo - 1898 Australasian Federation Conference : Third Session : Debates - March 2
     
  3. Philip Heiner

    Philip Heiner Active Member

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    Did the 1984 amendment to Section 17 of the Australian Citizenship Act 1948 result in the law being inoperable? In order to cease Australian citizenship, a discretionary decision must be made. Irrespective of no material questions of fact or statutory criteria being established to find a person’s dominant purpose to satisfy S17(1), no power is conferred to anyone to make the decision. Moreover, AAT Act 1975 provides no right for review of the decision.

    J.Davies in Minister v Gugerli [1992]FCA238 ruled a decision was required to determine operation of S17(1):

    a. §22 “The test looks to the factors which influenced the mind of the person doing the act”

    b. §24 states: “This is not one of those instances where the purpose of an act is to be determined by reference to the effect of that act, the purpose being that which the act in fact achieves”.

    c. §25 “"purpose" in the sense in which the word is used in s.17 looks to a state of mind”
     
  4. Philip Heiner

    Philip Heiner Active Member

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    “I think it would be a mistake to give to the Federal Parliament the power of determining the qualifications of citizenship under the Commonwealth.” “The Commonwealth has abundant power to legislate as regards those who come from outside, and it cannot legislate, even if you put such a power as this in, as regards those who are here already.”

    The meaning of these words by Mr O'Connor when drafting the Constitution is clear, and found in Official Record of the Debates of the Australasian Federal Convention, Third Session, Melbourne, 2 March 1898, vol. II, pp 1750, 1754.

    The Commonwealth of Australia Constitution Act deliberately excluded power for Parliament to make law to affect citizenship acquired automatically at birth; “those who are here already”. Moreover, without Australian law to consider, no jurisdiction was established for any court in Australia to rule on the matter. The effect is that citizenship of the natural-born Australian is for life unless the people of Australia grant power to change it by amending the Constitution by referendum.

    Parliament has exceeded constitutional power for over 60 years by making law on how citizenship at birth is acquired or lost. Current legislation to extend ministerial power to cease Australian citizenship is similarly infected. The Australian government is silent and offers no clarification to explain the injustice entrenched in the past or why it is not resolved to secure our future. What is the answer?
     

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