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Kiefel CJ

Bell J

Gageler J

Keane J

Nettle J

Gordon J

Edelman J

Kingdom and colonies otherwise than by descent when Cyprus became independent because he was not ordinarily resident in Cyprus in the five years prior to 16 August 1960. Senator Xenophon's father did not have the right of abode in the United Kingdom under the IA 1971 or at any time before 1983, when British nationality law was again revised. On the commencement of the BNA 1981, Senator Xenophon's father was automatically reclassified as a BOC.

129 At the time of Senator Xenophon's birth in 1959, for the purposes of British nationality law, Australia was an independent Commonwealth country. Under the BNA 1948, citizenship of the United Kingdom and colonies passed automatically to the legitimate child of a father who was a citizen of the United Kingdom and colonies otherwise than by descent. Therefore, Senator Xenophon became a citizen of the United Kingdom and colonies by descent at birth. Senator Xenophon did not have the right of abode in the United Kingdom under the IA 1971, when that Act came into force on 1 January 1973, and he did not acquire that right after that date. On 1 January 1983, as a citizen of the United Kingdom and colonies without the right of abode in the United Kingdom and without a specified connection with a territory which on that date remained a colony, Senator Xenophon was automatically reclassified as a BOC.

130 Senator Xenophon has not been issued with a BOC passport and has never received British consular protection or other consular services.

131 There is no question that Senator Xenophon was a BOC at the date he nominated for election as a senator for South Australia. While under domestic law British overseas citizenship is treated as a form of British nationality, Mr Fransman explains that it is a residuary form of nationality that differs from British citizenship in important respects: importantly, a BOC does not have the right of abode in the United Kingdom. The right of abode includes the right to enter and to reside in the country of nationality. As Mr Fransman observes, the right of abode is one of the main characteristics of a national under international law.

132 In this regard, unlike a British citizen, a BOC may only enter the United Kingdom by satisfying the requirements of immigration control. It appears that in 2002 British citizenship was extended to include those BOCs who did not