By Jo Shaw, GLOBALCIT co-director
The story of the Australian citizenship regime – told fully and eloquently in the second edition of Kim Rubenstein’s book Australian Citizenship Law – offers an intriguing insight into how citizenship regimes emerge and evolve in the case of new states, and then reach maturity over decades of intense contestation between different political and legal actors across a federal state. It thus provides some high profile examples of the types of pressures that many national citizenship regimes face at present, in relation to questions of belonging, loyalty and identity as well as the rights and privileges attaching to citizenship status.
Australia’s emergence as an independent state was gradual, and it was only finally freed from certain (by then mainly only potential) UK legal constraints in the 1980s, when the UK and Australian Parliaments both passed the Australia Act 1986 to remove the power of the Westminster Parliament to amend the Australian constitution. Yet that constitution – federating Australia and effectively establishing the ‘Commonwealth of Australia’ – was by then almost 100 years old, having been approved in a series of referendums within what were then the Australian colonies at the end of the nineteenth century and an act of the UK parliament in 1900. The Constitution itself does not refer to citizenship, and it establishes a limited legislative power for the federal parliament in relation to citizenship, but it does make crucial reference at several points to ‘the people’ (eg in the Preamble). Until 1948 and the passing of what became the Australian Citizenship Act 1948, the only legal status that Australians ‘enjoyed’ was that of British subject. Others were ‘aliens’, which is a category referred to in the Constitution. After 1948 and until 1987, Australians had a dual status of Australian citizen and British subject. Now regulated in the Australian Citizenship Act 2007 (Cth), Australian citizenship has only existed as a fully consolidated sovereign status since 1987. While it is perhaps unsurprising that a 19th century text formulated in the era of the British Empire and its emerging dominions contains no reference to ‘citizenship’ as such (the only reference is to ‘foreign citizens’ who are disqualified from sitting in Parliament), what is significant about the continuing constitutional lacuna for the presented (changed) times is how difficult it is to amend the Australian constitution. The Australian citizenship regime is to that extent there still influenced by the shadow of empire and ‘subjecthood’.
Rubenstein’s project has been to write a book about citizenship that has bridged the gap between what is of interest to citizenship scholars and legal academics and what is of use in the practical context of litigation. There is a considerable volume of case law in the superior courts of the Australian legal system that has touched upon both the definition and scope of Australian citizenship (especially issues of dual nationality) and the assessment of the character of citizenship rights, and how these are legislated for in a voluminous body of federal statutes. There remains uncertainty about the scope of the federal legislative power in relation to citizenship, and about what the States may still do, but it is clear that much has flowed, historically, from the power of the Commonwealth to determine the process of naturalisation, which has obviously been crucial for what has long been termed a ‘settler society’. However, in the absence of constitutional guiding principles on citizenship, many gaps have been filled – in a common law system – by judges interpreting and applying the legislative texts to the complex scenarios that often arise when the boundaries of membership are in play.
In this second edition of her book, Rubenstein continues to offer a comprehensive technical presentation of Australian citizenship law, providing (in partnership with Jacqueline Field) a detailed analysis of the new legislation, notably the 2007 Act which replaced the 1948 Act and the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 which provided important powers for the Minister to deprive persons of their Australian citizenship provided they are dual nationals and if they have been convicted of terrorist offences or other offences, which bring their loyalty to Australia into question. Undoubtedly, ‘Rubenstein on citizenship’ will continue to make regular appearances in the judgments of the higher courts in Australia as an indispensable resource and an authoritative guide to unravelling the key issues in this fast moving and complex field.
But in addition, Rubenstein wants us to have more, and the key has lain in the extra element of the original first edition title, which referred to placing the law in context. She does this very effectively throughout the book, but especially in the first and last chapters. She articulates, for example, particular concerns about the citizenship of children, and about the interface with immigration law, which sees increasingly large numbers of newcomers to Australia placed in legal statuses that make it impossible for them to become settled and thus to access Australian citizenship, a point discussed in detail in the recent GlobalCit report on Australian citizenship law written by Rayner Thwaites. More generally, Rubenstein’s overall approach emphasises the role of ‘duality’ in relation to the emergence and development of Australian citizenship law. There has been the duality of British subjecthood and Australian citizenship in the middle years of the twentieth century. There was a gradual relaxation of provisions hostile to dual citizenship, allowing not only foreign-born citizens to retain their original citizenship on becoming Australian by naturalisation but also ‘native-born’ Australians likewise to retain their citizenship on acquiring another nationality. All of this recognizes the complex interactions that hold citizenship regimes together across international boundaries, in the absence of a neat packaging of people into separate boxes. These are appropriate responses to the nuances of membership brought about by human mobility and complex family formation, as well as the globalisation of economic activity. In the light of these principles of ‘duality’, there are questions to be asked about the recently adopted provisions on deprivation of nationality, ostensibly for reasons of terrorist threats. Rubenstein criticises these for working against a sense of Australia as a tolerant and open multicultural society and for diluting the meaning of citizenship.
Even since the publication of Rubenstein’s book, however, dual citizenship issues have continued to torment the Australian body politic, with a series of revelations about the apparent dual citizenship of various parliamentarians leading to a reference back to the High Court for clarification of the implications of Australia’s continuing constitutional ban on office-holders holding dual citizenship. The re-emergence of this controversy, which threatens the survival of the government in the context of delicate coalition politics, has highlighted how hard it would be to amend the Australian constitution both to resolve the dual citizenship / parliamentary representation issue, and – potentially – to provide an adequate modern reference to citizenship as the political basis of the sovereign state, in a manner which goes beyond the constraints of the turn-of-the-century constitution drafted under the shadow of Empire.
As expressed fervently in her final chapter on the future of Australian citizenship, Rubenstein wants to see the law and the politics evolving in ways that emphasise that this status as open to the influences of globalization and multiculturalism. These would clearly be desirable policy outcomes from her perspective. This emerges both in this book, but also in the other literatures that Rubenstein has contributed to the burgeoning legal subfield of Australian citizenship studies. The reality, as her detailed analysis lays bare in the chapters which precede her conclusion, is that the elements of exclusivity in relation to Australian citizenship as legal status may be growing stronger not weaker at the present time, reflecting both internal and external pressures and limitations upon action.
This short note was written whilst I was a EURIAS Fellow at the Helsinki Collegium of Advanced Studies. The financial assistance of the HCAS and the EURIAS programme are acknowledged with thanks.
Jo Shaw
University of Edinburgh
2017-2018 EURIAS Fellow, Helsinki Collegium for Advanced Studies
Also published at: https://medium.com/@userjoshaw/review-of-k-16c2b15c2a8d