The prevention and reduction of statelessness in Australia: an ongoing challenge.

• Jurisdiction: Australia
• Date: 01 January 2017
• Author: Foster, Michelle

CONTENTS I Introduction II Background and Context: What Is Statelessness and Why Does It Matter? III The International Legal Framework and Australia's Obligations IV Statelessness and Citizenship Law in Australia V The Prevention and Reduction of Statelessness in Australian Law: An Analysis A Prevention of Statelessness: Grant of Nationality to Avoid Statelessness 1 Stateless Children Born in Australia 2 Access to Australian Citizenship for Those Who Arrive in Australia as Stateless Persons 3 Children Born Outside Australia to an Australian Citizen 4 Potential Barriers to Citizenship: Deficiencies in Birth Registration in Australia B Challenges to the Prevention of Statelessness: Withdrawal and Loss of Nationality C New Challenges to the Prevention and Reduction of Statelessness: National Security, Terrorism and the Withdrawal of Citizenship VI Conclusion I INTRODUCTION

Statelessness is not merely a legal problem, it is a human problem. (1)

It has long been recognised that collective international action is essential 'to ensure that everyone shall have an effective right to a nationality'. (2) Yet, although the international community originally considered the problems of statelessness and refugee movements to be intertwined, the decision in the early 1950s to establish two separate legal regimes resulted in a relegation of statelessness to relative obscurity. (3) Over the past decade, however, there has been renewed interest in and commitment to resolving the endemic problem of statelessness, most clearly exemplified by the United Nations High Commissioner for Refugees' ('UNHCR') Global Action Plan to End Statelessness 2014-24, which sets out to end statelessness by 2024. (4) Central to the plan is the prevention and reduction of statelessness, which relies in part on encouraging more states to ratify and implement the Convention on the Reduction of Statelessness ('1961 Convention). (5)

This article provides the first comprehensive analysis of the extent to which Australia complies with its obligations under the 1961 Convention and other relevant international instruments to prevent and reduce statelessness. Although Australia does not have a large stateless population, (6) there are nevertheless particular cohorts of people who do not have a nationality, may be at risk of losing their nationality, or may face difficulties acquiring Australian citizenship. In Part II, we briefly set out the background and context to statelessness, before examining the relevant international legal framework and Australia's obligations in Part III. In Part IV, we outline the way in which statelessness and citizenship are regulated in Australian law, explaining that a lack of constitutional safeguards means that it is entirely regulated by statute, thus placing a large amount of discretion in the Parliament with limited scope for the judiciary to intervene. In Part V, we turn to the core of the analysis, namely the extent to which Australian law protects against statelessness in relation to the acquisition and deprivation of citizenship, focusing in particular on amendments made in 2015 to the Australian Citizenship Act 2007 (Cth) ('Citizenship Act').

II BACKGROUND AND CONTEXT: WHAT IS STATELESSNESS AND WHY DOES IT MATTER?

In a companion article published in the same issue, we outlined what statelessness is and why it matters. (7) To summarise briefly, art 1(1) of the 1954 Convention Relating to the Status of Stateless Persons ('1954 Convention') provides that a stateless person is someone 'who is not considered as a national by any State under the operation of its law.' (8) Typically, stateless persons live in a 'legal limbo' (9) characterised by vulnerability, insecurity and marginalisation. (10) They commonly face difficulties accessing basic human rights, such as education, employment, housing and healthcare, (11) and are at a heightened risk of exploitation, arrest and arbitrary detention because they cannot prove who they are or that they have links to any country. (12) There are millions of stateless persons in the world, but the majority reside in the Asia-Pacific region. (13)

Statelessness may arise from a wide range of circumstances, including discriminatory or conflicting nationality laws, (14) arbitrary deprivation of nationality, state succession and territorial changes, barriers to birth and other civil registration procedures, administrative oversight, renunciation of one nationality without acquiring another, being born to a stateless person, marriage or divorce, and denationalisation. (15) In the view of one leading scholar, the 'primary injustice' experienced by stateless persons 'is not that they cannot find a state to grant them citizenship but that the state which should grant them citizenship will, for various reasons, not do so.' (16) As Blitz and Lynch have noted, although many stateless persons effectively 'struggle to exist', (17) the conferral of citizenship on once-stateless populations offers 'very real and important material and non-material benefits at both the community and individual levels.' (18)

Yet in many countries, including Australia, there is no formal mechanism in place to identify stateless persons. While some may be discovered through the refugee status determination process, others may go undetected. Even when a stateless person is identified, there is no domestic legal status that attaches unless he or she is also recognised as a refugee or beneficiary of complementary protection. As such, he or she may be at risk of indefinite detention, or only be eligible for a temporary visa with a limited set of entitlements. (19)

III THE INTERNATIONAL LEGAL FRAMEWORK AND AUSTRALIA'S OBLIGATIONS

While '[e]veryone has the right to a nationality' under international human rights law, (20) states do not have a corresponding duty to confer nationality, other than on certain children. (21) It is therefore 'for each State to determine under its own law who are its nationals.' (22) As Weis notes, from the perspective of international law, 'the stateless person is an anomaly, nationality still being the principal link between the individual and the Law of Nations.' (23)

The two international treaties on statelessness are the 1954 Convention and the 1961 Convention. As detailed above, the 1954 Convention defines a 'stateless person' in art 1(1) as 'a person who is not considered as a national by any State under the operation of its law', (24) while the remainder of the treaty sets out the legal status of stateless persons. (25) It is designed to ensure that 'those who find themselves stateless need not be consigned to a life without dignity and security.' (26)

Most stateless persons reside within the country of their birth or long-term residence. (27) As such, the answer to their predicament is more appropriately found not in formal recognition as 'stateless persons, but rather through the opportunity to acquire or confirm the nationality to which they have links (for example, through the reform of nationality laws). (28)

When the Ad Hoc Committee on Statelessness and Related Problems met in New York in 1950 to consider the desirability of a new treaty on the international status of refugees and stateless persons and ways to eliminate future statelessness, (29) the latter was separated out from the more urgent question of what legal status stateless persons should have. (30) Eliminating statelessness was regarded as an issue that required international cooperation and the adoption of treaties, and since the Ad Hoc Committee had limited time and resources, it decided to transfer this task to the International Law Commission ('ILC') which was already seized with the question of nationality, including statelessness. (31) In due course, the United Nations ('UN') General Assembly expressed its desire for an international conference to be convened so that a treaty might be concluded. (32)

Accordingly, the UN Conference on the Elimination or Reduction of Future Statelessness met in 1959 and 1961 to formulate a treaty on this subject. As Batchelor notes, its objective was to fill 'gaps created by conflicts of law.' (33) Although the original intention was to draft an instrument to eliminate statelessness, this was considered too ambitious and the focus was instead confined to the reduction of statelessness. (34) Australia did not participate in the drafting process, but it ratified the treaty without any reservations in 1973 (on the same day it ratified the 1954 Convention). (35)

The United Kingdom ('UK') representative at the Conference stated that '[t]he main cause of statelessness at birth was [said to be] the conflict between jus soli [nationality based on where one is born] and jus sanguinis [nationality based on one's descent--eg, parents' citizenship]' (36) This tension lay at the heart of the different approaches taken by states during the process of drafting the 1961 Convention. For instance, the Swiss representative argued that while it might be logical for immigration countries to grant nationality to every child born on their soil, many 'over-populated' European states 'could not, without seriously affecting their political and social structures, assimilate thousands of persons who had no real links with them and whose birth on their soil was often fortuitous' (37) Furthermore, states 'had to ensure that the persons concerned were adapted to the habits, customs and mentality of [their] nationals and that they would become good citizens.' (38) A key challenge, therefore, 'was to find a way for the jus sanguinis States to co-operate in reducing future statelessness.' (39)

In addition, as had been previously expressed in the ILC, some states emphasized the internal jurisdiction aspects of nationality and their desire to preserve their right to deprive someone of nationality in certain circumstances. Others argued that deprivation should not be used as a penalty, but thought it was...