Legislative history
103 The legislative history of citizenship in Australia is central to understanding the significance of the question raised in these appeals. This history clearly supports the following two propositions.
(1) In Australia, the legal concept of citizenship is comparatively recent, having been introduced by Nationality and Citizenship Act 1948 (Cth) (later called the Australian Citizenship Act 1948 (Cth)).
(2) Eligibility for citizenship has significantly altered over time in response to political and social changes, including the emergence of Australia as an independent national state, the recognition that men and women have equal legal status, and the recognition that the rights of persons should not depend on the marital status of their parents.
104 To these, we would add a third relevant proposition.
(3) For the purposes of statutory eligibility, in relation to persons born outside Australia, there is little, if anything, to warrant the conclusion that the citizen parent (through whom the citizenship claim is made) can only be a person having a genetic connection with the claimant.
105 Citizenship is not a constitutionally-defined concept in Australia. As Gaudron J said in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 ('Lim') at 54:
Citizenship, so far as this country is concerned, is a concept which is entirely statutory, originating as recently as 1948 with the enactment of what was then styled the Nationality and Citizenship Act 1948 (Cth). It is a concept which is and can be pressed into service for a number of constitutional purposes … But it is not a concept which is constitutionally necessary, which is immutable or which has some immutable core element ensuring its lasting relevance for constitutional purposes. (footnotes omitted)
From time to time, other members of the High Court have made similar statements: see also Singh 222 CLR at 364 [96] (McHugh J) and DJL v The Central Authority (2000) 201 CLR 226 at 277-78 (Kirby J). Before the 1948 Act, people in Australia were, relevantly, either British subjects or aliens. As McHugh J noted in Singh 222 CLR at 364-5 [96]:
The concept of the "natural born subject" was also recognised by the Australian colonies in the mid-nineteenth century in domestic naturalisation legislation. … [T]he natural born subject owed from birth permanent allegiance to the Crown. In turn, the Crown owed duties of protection to the subject.
For the earlier history, see Singh at 359-63 [81]-[91] (McHugh J); 386 [164], 388-90 [170]-[174], 391-93 [178]-[181] (Gummow, Hayne and Heydon JJ); 405-6 [223]-[225] (Kirby J); and 425-28 [298]-[301] (Callinan J); and Re Patterson 207 CLR at 428-30 [114]-[116] (McHugh J) and 440 [148] (Gummow and Hayne JJ).
106 The Naturalization Act 1903 (Cth) was enacted by the Commonwealth Parliament shortly after Federation and came into force on 1 January 1904. The 1903 Act and its successor, the Nationality Act 1920 (Cth), were principally concerned with the naturalisation of persons as British subjects. There was no legal concept of citizenship. Under the 1903 Act, the Commonwealth assumed the exclusive authority to issue certificates of naturalisation, although persons previously naturalised under colonial or State law were "deemed to be naturalized" (ss 13, 4). The grant of a certificate of naturalisation assured the grantee "all political and other rights powers and privileges", and subjected him to all obligations, in the Commonwealth to which other natural-born British subjects were entitled or subject (s 8). However, "an aboriginal native of Asia, Africa, or the Islands of the Pacific, excepting New Zealand" was not eligible for a certificate of naturalization under the 1903 Act, as first enacted (s 5). The 1903 Act made particular provision for infants, stating (in s 10):
An infant, not being a natural-born British subject -
(a) whose father, or whose mother (being a widow or divorced), has obtained a certificate of naturalization; or
(b) whose mother is married to a natural-born British subject or to a person who has obtained a certificate of naturalization;
and who has at any time resided in Australia with such father or mother, shall in the Commonwealth be deemed to be naturalized and have the same rights powers and privileges, and be subject to the same obligations, as a person who has obtained a certificate of naturalization.
107 The Nationality Act 1920 (Cth) largely followed the British Nationality & Status of Aliens Act 1914 (UK). Under the 1920 Act, natural-born British subjects were deemed (by s 6) to be: (a) any person born within the dominions of the Crown; (b) any person born on board a British ship; and (c) any person born outside the Crown dominions:
whose father was a British subject at the time of that person's birth and either was born within His Majesty's allegiance or was a person to whom a certificate of naturalization had been granted, or had become a British subject by reason of any annexation of territory, or was at the time of that person's birth in the service of the Crown.
Provision for certificates of naturalisation continued to be made, but natives of Asia, Africa, and the Pacific Islands of the Pacific were no longer ineligible. Naturalisation certificates could not, however, be granted to a person "under a disability", an expression covering "the status of being a married woman, or a minor, lunatic or idiot" (ss 10 and 5).
108 As already stated, Australian citizenship was not a legally-recognized concept until it was introduced into Australian law by the Nationality and Citizenship Act 1948 (Cth), later renamed the Australian Citizenship Act 1948 (Cth), which took effect on 26 January 1949. The concept of Australian citizenship emerged as Australia moved to independent nationhood and, as will be seen, it also altered as social norms relevant to defining membership of the Australian body politic changed.
109 When first enacted, the 1948 Act (in s 10) provided a definition of an "Australian citizen" applicable to people born after the commencement of the Act. Broadly speaking, s 10 provided that a person born in Australia after the commencement date was an Australian citizen. There was transitional provision (in s 25) under which people who were British subjects immediately before that date could become Australian citizens. There was also provision for citizenship by naturalization (s 14) and loss of citizenship (ss 17-23).
110 Relevantly, pursuant to s 11, from 26 January 1949 to 30 April 1970, a person born outside Australia was an Australian citizen by operation of law if:
at the time of birth the father was an Australian citizen; or
at the time of birth the unmarried mother was an Australian citizen (or a British subject ordinarily resident in Australia or New Guinea); and
the birth was registered at an Australian consulate within a year of the birth (or, in special circumstances, within such time as the Minister allowed).
Only if born "out of wedlock" (see s 11) could a person's Australian citizenship derive from the mother's citizenship at the time of birth.
111 The 1948 Act was amended on a number of occasions, and the law regarding eligibility for citizenship for persons born overseas underwent various transformations. It is unnecessary to refer to amendments between 26 January 1949 and 30 October 1959. It suffices to note the effect of Citizenship Act 1969 (No 22 of 1969), with effect from 1 May 1970. By virtue of the amendments effected by this Act, persons born to married women who were Australian citizens at the time of their birth became eligible to acquire citizenship by registration. Notwithstanding its retrospective operation, persons who had turned 18 were unable to take advantage of this provision - a matter that was later remedied by s 10C. Thus, broadly speaking, from 1 May 1970 until 21 November 1984, a person born outside Australia (on or after 26 January 1949) was an Australian citizen by operation of law ( s 11(1)) if:
(a) in the case of a person born in wedlock - at the time of the birth his father or mother was an Australian citizen; or
(b) in the case of a person born out of wedlock - at the time of the birth his mother -
(i) was an Australian citizen; or
(ii) was, or had the status of, a British subject and was ordinarily resident in Australia or New Guinea,
and, in either case, the birth was or is registered at an Australian consulate within five years after its occurrence or within such further period as the Minister allowed or allows.
(Emphasis added)
In effect, being born in or out of wedlock was a key criterion for determining eligibility from 26 January 1949 until 21 November 1984. Under the 1948 Act as originally enacted, save in unusual circumstances, a person born to a married woman would become an Australian citizen if her husband was an Australian citizen at the time of the birth: see [82] and following above.
112 The Australian Citizenship Amendment Act 1984 (Cth) ('the 1984 Act') further amended statutory eligibility for citizenship. Relevantly, s 11 of the 1948 Act was replaced by new s 10A, concerning citizenship by adoption, and new s 10B, addressing citizenship by descent. Before 1984, citizenship by descent for persons born outside of Australia was determined by reference to the citizenship of either the person's "father" or "mother" or both, depending on the circumstances. The new s 10B was the first time the term "parent", rather than "mother" or "father", was used in connection with citizenship for persons born outside Australia. The change was, however, relevantly, silent on the present question: the change reflected not only the recognition that men and women have equal legal status, but also that the rights of persons should not depend on the marital status of their parents. It was not directed to limiting the meaning of parentage, whether to biological parents or otherwise, a limitation that would, in any case, have been inconsistent with its other provisions: see [115].
113 By virtue of s 10B persons born outside Australia acquired Australian citizenship by operation of law if: (1) their birth was registered at an Australian consulate within 18 years of birth; and (2) a parent "being a parent of the relevant person at the time of the birth" was an Australian citizen otherwise than by descent under s 10B (or under the former s 11). Where a parent was an Australian citizen by descent, the parent had also to have been present in Australia at any time before the registration of the name of the relevant person, "otherwise than as a prohibited immigrant, as a prohibited non-citizen, or in contravention of a law of a prescribed Territory". If one parent were not an Australian citizen at the time of birth, then there could be no registration under s 10B unless:
(a) at least one person who is, at the time of the application, a responsible parent of the relevant child, was, at the time of the birth of the relevant child -
(i) a parent of the relevant child; and
(ii) an Australian citizen; or
(b) a person who was, at the time of the birth of the relevant child -
(i) a parent of the relevant child; and
(ii) an Australian citizen,
is dead.
A responsible parent, in relation to a child, was defined in s 4(1) as:
a person, whether or not a parent of the child, who, under a law in force in a foreign country or a law of the Commonwealth, a State or a Territory, whether by reason of adoption, operation of law, an order of a court or otherwise, has guardianship or custody of the child whether jointly or otherwise.
114 Section 10B introduced into the citizenship by descent provisions the notion of "responsible parent" as opposed to merely a "parent". The provision contemplated a distinction between "parent" and "responsible parent" - the later requiring no genetic connection to qualify as a "responsible parent". The provision made it clear that, where a person born outside Australia had living parents, only one of whom was a citizen parent, eligibility for citizenship required that the citizen parent was a citizen parent at the time of birth and a responsible parent at the time of application.
115 Elsewhere, the 1984 Act indicated that lack of genetic connection would not necessarily disqualify a person from parentage of a particular child and from conferring citizenship upon that child. Thus, a new s 6 provided that "[a] child born to a woman as a result of the carrying out, during the period in which the woman was married to a man, of a medical procedure in relation to that woman, being a child who is not biologically the child of that man, shall … be deemed to be a child of that man … if the medical procedure was carried out with the consent of that man". Under the Act as it stood then, in the circumstances with which s 6 is concerned, a person born outside Australia (having a citizen and non-citizen parent) might derive citizenship through such a man if he had Australian citizenship at the time of the birth and was a responsible parent at the time of application.
116 The 1948 Act was further amended in 1990 and 1991. These amendments were directed at remedying specific deficiencies in the Act as it then existed, but they also introduced for the first time the terms "natural mother", "natural child" and "natural parent". In particular, the Australian Citizenship Amendment Act 1990 (Cth) introduced a new s 11, which specifically provided for citizenship by descent for people born outside Australia or New Guinea before 26 January 1949 whose "natural mother" was an Australian citizen on 26 January 1949, either by birth or naturalisation. Section 11(2) permitted an applicant for citizenship under s 11(1) to include in the application "any natural child of the applicant, regardless of the child's age". Section 11(4) further provided that "[t]he applicant, and any natural child of the applicant included in the application" became Australian citizens on the day on which the applicant was registered as such. The Explanatory Memorandum to the Australian Citizenship Amendment Bill 1990 (Cth) circulated in the House of Representatives indicated (at [8]) that the term "natural children" was intended to signify "biological children, including children born out of wedlock, but not adopted children or step-children". Presumably, the term "natural mother" was intended to be understood in the correlative sense. See also the Minister's second reading speech, Australian Citizenship Amendment Bill 1990 (Cth), House of Representatives, 12 November 1990, at p 3756.
117 As Professor Kim Rubenstein explains in her book, Australian Citizenship Law in Context (Lawbook Co, 2002) p 97, there were significant practical difficulties for people seeking to rely on this new provision, which was introduced in the first place for a relatively straightforward reason - "to correct an anomaly, an inequity based on gender": see Jack Grossberg v Department of Immigration and Ethnic Affairs [1995] AATA 211 at [17]. The practical difficulties arose from the time requirements in s 11(3) and the relevant Regulations, together with relevant legislative commencement date.
118 The Australian Citizenship Amendment Act 1991 (Cth) added a new s 10C to overcome these timing difficulties. That is, s 10C was inserted to allow persons who had failed to be registered before turning 18, particularly those born to married parents, where the mother only was an Australian citizen, between 26 January 1949 and 30 April 1970: see Rubenstein op cit p 98. Section 10C provided for the acquisition of citizenship by operation of law by people over 18 years of age born on or after 26 January 1949 and 18 or over when s 10C commenced, who "failed for an acceptable reason to become registered as an Australian citizen" under s 10B or the former s 11 and were of good character. As with the earlier s 10B, eligibility was limited to person with a natural parent who was an Australian citizen at the time of birth and the time of application (or, if the parent was deceased, at the time of the parent's death). In his second reading speech, the Minister stated that he expected that the number of people obtaining citizenship under this provision would be small: see the Minister's second reading speech, Australian Citizenship Amendment Bill 1991 (Cth), House of Representatives, 7 November 1991, at p 2648.
119 As indicated at the start of these reasons, both the Minister and the opposing parties relied on the use of the terms "natural mother", "natural child" and "natural parent" in the 1990 and 1991 amendments. The Minister argued that the use of "natural parent" in s 10C favoured his construction. The Minister said that, since s 10C was intended as a remedy for individuals who had missed the opportunity to register as citizens under s 10B, if "natural parent" in s 10C were narrower in scope than "parent" in s 10B, then s 10C would not have had its intended remedial effect. Perhaps so, although this disregards the fact that the adjective "natural" was first introduced by s 10B. The opposing parties argued, on the other hand, that by using this term in ss 10B and 10C, Parliament showed that, if it wished to limit the "parent" and "child" relationship to a biological one, it would specifically do so. Since Parliament had omitted the limiting word "natural" from the current s 16(2), then, so the argument went, Parliament must have determined not to retain the biological limitation.
120 We would not accept either argument. The legislative history shows that Parliament adopted the adjective "natural" in s 10B (and later s 10C) to ensure that the rights conferred by statute were the same for persons born in wedlock and persons born out of wedlock. In seeking to remove parental marital status as a relevant criterion, Parliament introduced (briefly as it happened) an expressly biological qualification. Sections 10B and 10C were designed to remedy particular problems, which in the case of s 10C affected a small group of people. Bearing this in mind, not much can be read into the use of the qualifying "natural" other than an intention, as noted, to ensure that no distinction was drawn between persons born in or out of wedlock. Equally, one cannot read a great deal into the omission of the qualifying adjective in the current form of s 16, especially as, by the time the Citizenship Act commenced on 1 July 2007, discrimination based on whether a person was born in or out of wedlock was no longer a common feature of the law or society. In this context, all that can be inferred from the omission of the adjective is that Parliament intended that the word "parent" be accorded its ordinary meaning - a meaning that was to be consistent with contemporary social norms. That Parliament intended that this should be the governing approach to the new Citizenship Act is confirmed by the Minster's Second Reading Speech: see below at [121].
121 The current Citizenship Act replaced the Australian Citizenship Act 1948 (Cth), with s 16 replacing the previous provisions of the 1948 Act dealing with eligibility for persons born outside Australia and claiming citizenship through a parent. The Revised Explanatory Memorandum that was circulated with the Australian Citizenship Bill 2005 explained that new Subdivision A of Division 2 of Part 2 "mirrors the provisions of the old Act", although comparison with the former legislation, especially the predecessor provisions to s 16, shows that this was not entirely true. Relevantly, for present purposes, the Minister's second reading speech emphasized that the new Act was intended to "deliver [a] better structured, clearer, more accessible law, drafted in the language of the 21st century" (emphasis added): see Parliamentary Debates, 9 November 2005, p 9. One cannot, of course, attach overly much significance to such a statement, although it apparently confirms that, where they appear in the Citizenship Act, words in ordinary English usage are to be understood to have their ordinary contemporary meaning.