New Zealanders planning legal challenge to Australian citizenship laws

Sydney Harbour Bridge on a clear Sydney afternoon

An article in The Guardian on 28 January 2020 reports that a lobby group of New Zealand citizens plans to challenge Australia’s citizenship laws in court on the grounds that they “unreasonably deny the right to vote to the affected cohort” and “constitute unlawful race discrimination”.

Whether the proposed challenge has any chance or success or not, the article links to an interesting report in The Conversation that analyzes census data showing that New Zealand citizens, and particularly New Zealand born Maori, have a much lower rate of becoming Australian citizens than immigrants from other countries.

New Zealanders are the only non-citizens who have a right to travel to Australia without a visa and be allowed to live and work here indefinitely (subject to individual New Zealanders being refused on health or character grounds). Since 2001, however, there has been no link between length of residence and eligibility for Australian citizenship. The reason is that the visa granted to New Zealanders on each arrival may be “indefinite”, but it is not “permanent”. It is in effect only so long as the holder retains New Zealand citizenship, and only while they are physically present in Australia. To become eligible to apply for Australian citizenship, most New Zealenders must first apply for and be granted a permanent visa, either as the spouse or de facto partner of an Australian citizen or permanent resident or by satisfying the requirements of one of the subclasses of skills-based or employer nominated permanent visas available to other nationalities. A special concession available only to New Zealanders usually resident here before 19 February 2016 has not been extended.

On the other hand, Australian citizens in New Zealand have far easier access to permanent status and New Zealand citizenship.

The “special status” of New Zealanders in Australia has its drawbacks. The points test for skilled migration favours younger applicants, but many New Zealanders who have lived in Australia for decades and put off applying may find themselves too old to pass the test when the crunch comes. The “crunch” can come unexpectedly, as reported in another article in The Guardian on 9 November 2019.

Even New Zealanders who arrived in Australia as babies or young children and have lived here all their lives can find themselves “deported” and facing a lifetime ban on return to this country for failure to satisfy the “character test” in s 501(6) of the Migration Act 1958. The test can be failed by anyone if the Minister is not satisfied that they are of good character having regard to their past and present criminal or general conduct, amongst other reasons.

We look forward to seeing how the lobby group’s challenge progresses.


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