Citizenship by birth — s 12 ACA 2007

Topic Citizenship law 🇦🇺 Verified: 2026-05

Overview

Under section 12 of the Australian Citizenship Act 2007 (Cth), a person born in Australia is an Australian citizen by birth if, at the time of their birth, at least one parent was an Australian citizen or a permanent resident of Australia. Birth in Australia alone — without a citizen or permanent resident parent — does not confer citizenship. Australia does not have unconditional jus soli (birthright citizenship regardless of parental status).

This represents a significant departure from the position under the predecessor Australian Citizenship Act 1948, which conferred citizenship automatically on all persons born in Australian territory. The 2007 Act replaced this with a parental-nexus requirement, meaning that children born in Australia to parents on temporary visas or without lawful status do not automatically become citizens.

A separate provision — the foundling rule in s 12(2) — deems citizenship to have been acquired by birth for children found abandoned in Australia whose parentage cannot be established, so as to avoid statelessness.

Legal basis

Section 12(1)(a) — person born in Australia; at the time of birth, a parent of the person was an Australian citizen or a permanent resident of Australia
Section 12(1)(b) — person born in Australia; at the time of birth, a parent of the person was not an Australian citizen or permanent resident, but the person would be stateless if not a citizen by birth — provides a safety net against statelessness
Section 12(2) — foundling rule: a person found abandoned in Australia as a child is taken to have been born in Australia to a parent who was an Australian citizen at the time of birth, unless the contrary is established
Section 5 — defines "permanent resident" for the purposes of the Act: generally a non-citizen who holds a permanent visa

Source: Australian Citizenship Act 2007 (Cth), s 12. Current version at legislation.gov.au.

How it works

The parental status requirement

For citizenship to arise under s 12(1)(a), at least one parent must have been, at the time of the child's birth:

An Australian citizen — whether by birth, descent, adoption, or conferral; or
An Australian permanent resident — a non-citizen holding a permanent visa that was in force at the time of the child's birth

A parent who was in Australia on a temporary visa — such as a student visa (subclass 500), a temporary skilled visa (subclass 482), or a visitor visa — is not a citizen or permanent resident. A child born in Australia to two parents both on temporary visas does not acquire citizenship by birth under s 12(1)(a).

The statelessness exception — s 12(1)(b)

Section 12(1)(b) provides a limited exception where neither parent was a citizen or permanent resident at the time of birth, but the child would otherwise be stateless. This provision reflects Australia's obligations under the Convention on the Reduction of Statelessness 1961. Whether it applies depends on the citizenship laws of the country of the parents' nationality — if those laws would also not confer citizenship on the child, s 12(1)(b) may operate.

The foundling rule — s 12(2)

A child found abandoned in Australia is taken, in the absence of contrary evidence, to have been born in Australia to a parent who was an Australian citizen. This ensures that foundlings do not become stateless solely because their parentage is unknown. The presumption can be displaced if it is established that the child was born outside Australia or had a non-citizen, non-PR parent.

Children born outside Australia

Section 12 applies only to persons born in Australia. Children born outside Australia to Australian citizen parents may acquire citizenship under s 16 (citizenship by descent), but the eligibility criteria differ. Section 12 does not operate extraterritorially.

Record of citizenship

A person who is a citizen by birth under s 12 is a citizen from birth — no application is required and no formal grant is made. Evidence of citizenship can be obtained by applying for an Australian citizenship certificate or Australian passport.

Historical context

Under the Australian Citizenship Act 1948, all persons born in Australia were automatically citizens by birth (subject to certain exceptions for diplomatic personnel). The 2007 Act replaced this unconditional jus soli rule. The change was intended to align Australia's approach with that of the United Kingdom (post-1983) and other comparable jurisdictions that had moved away from unconditional birthright citizenship.