Australian citizenship as a political plaything


Australian passport

The Federal Government has announced it will legislate within weeks to strip certain dual nationals of their Australian citizenship. The new laws will apply to dual-national Australian citizens who fight with or support terrorist groups at home or abroad.

Understanding the proposed new laws requires some background on Australian citizenship, which is actually a relatively new citizenship. In fact, the first Citizenship Act was 1948, thanks to post-war Labor Government Immigration Minister Arthur Calwell.

For our first 48 years as a nation – during which we fought in two world wars – there were no Australian citizens, just British subjects. Australian Citizenship began on Australia Day 1949.

The right to citizenship varies between different countries. In some nations like Australia – and many western European countries – it is the jus sanguinis (right of the blood), which means you obtain citizenship through your parents. In others – such as the US and most of North and South America – it is the jus soli (right of the land), which refers to citizenship granted to those born in the country. Until 1984, Australia followed the jus soli principle, but that changed from 20 August 1986 and from then, the jus sanuinis principle applied.

Being born in Australia only entitles you to a birth certificate, and not citizenship. Citizenship is only available to those born here who have parents who are Australian citizens or permanent residents. Those born outside of Australia to an Australian parent need to have their birth registered in order to be granted citizenship.

Until 4 April 2002, you lost your Australian citizenship if you were granted citizenship of another country. However this did not apply to those who automatically were granted foreign citizenship through marriage or through the citizenship of a parent. It is now possible to apply for and be granted citizenship from another country without the risk of losing your Australian citizenship.

You can become a citizen if you were born in Australia and remain here for your first ten years. There is no requirement that you must be a lawful non-citizen or even a permanent resident.

For many Australians who have not had to apply for citizenship, the notion of citizenship may be limited to getting a passport and compulsory voting. Currently, you can only lose citizenship if you are convicted of fraud in obtaining the citizenship, for example obtaining permanent residence under false pretences and then using that to gain citizenship.

The Government wants to change the rules on account of the mounting concerns about the perceived threats from extremists. Already the citizenship branch of Immigration is refusing applications on the basis of minor offences (e.g. driving offences, public order issues) and because someone was unlawful for some period on the basis of the person not being of good character.

Proposed changes in the Citizenship Amendment Bill 2014 before the Senate include abolishing the possibility of citizenship if you are born in Australia and live here for your first ten years if you were unlawful at any time. I have a client with two children, the eldest was granted Australian citizenship thanks to the ten year rule, the youngest will miss out if the changes go through the Senate and must wait for their parents to eventually qualify on the residence grounds.

Other major changes proposed in the 2014 Bill include removal of the requirement of a conviction for fraud in order to make it possible to have your citizenship revoked. This refers to the determination of whether there is fraud ‘or misrepresentation’ (criminal matters) will be by a politician, not by the courts. Also it is proposed to give the Minister the power to set aside a decision of the Administrative Appeals Tribunal (AAT) where in the public interest. So you win your review at the AAT only to the this set aside personally by the Minister – such a decision is not reviewable and the further legal options are limited.

This week the Minister announced he is seeking further powers to revoke the citizenship of dual nationals ‘who engage in terrorism that betrays their allegiance to Australia.’ Already it is possible to revoke citizenship of someone who fights in the army of a State at war with Australia.

The balance between protecting the rights of individuals and the rights of the community can be difficult but to grant the power to make such decision just to a Minister, without the need of a conviction first, shifts the balance significantly. This is especially the case where a successful appeal to the AAT could be simply overturned by a Minister without needing to seek judicial approval, as will be possible if the 2014 Bill is passed.

This is venturing into the separation of powers doctrine that is critical to the survival of liberal democracy. Parliament makes the laws, the Executive (Ministers, bureaucrats) carry out the laws, and the Court enforce the laws. Where the Parliament or Executive overstep, the Courts have the power to call them out. This happened with the M70 Malaysian case under the former Gillard Government.

The further proposal of revoking citizenship of those without dual nationality but where there is a potential right for them to acquire a different nationality, is more contentious. It is not clear if this is only for those who are granted citizenship after application, or also for those born here. Either way it leads to the possibility of someone becoming stateless, contrary to the Statelessness Convention, and facing indefinite mandatory detention as they would then be an unlawful non-citizen.

Already there are extreme powers in the Migration Act which allow the Minister to personally overturn the decisions of review tribunals where visas are cancelled without the need of convictions or judicial backing. Extending such draconian powers into the citizenship area is unwarranted. An important decision, such as someone’s right to citizenship, ought not depend on the Minister’s assessment of the ‘national interest’ but more solid ground of evidence and testing that evidence through a proper administrative law process, overseen by the courts. This is why maintaining the separation of powers is so important to our democracy.

Kerry Murphy profile photoKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the boards of the IARC and JRS.

Topic tags: Kerry Murphy, citizenship, terrorism, immigration law, Migration Act



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Existing comments

An excellent article, Kerry! Thank you.

The possibility of revocation of citizenship by ministerial fiat suggests that the ancient punishment of banishment or exile is back.

This is especially true where it is applied to people who are out of the country (and therefore practically unable to exercise their meagre rights to challenge the decision).

Justin Glyn SJ | 28 May 2015  

Does large scale murder by a documented citizen of another country disqualify that person from being accepted as a migrant in Australia and being granted citizenship?

john frawley | 29 May 2015  

Thanks for such clear and definitely essential information.

We must stop the punitive dimension of citizenship-in-practice before it becomes something illegal and inhumane. We don't need to keep using tactics which contravene baisc human rights, in the intersts of 'demonising the disadvantaged' for political ends. Stop, listen, act appropriately - whatever government or opposition party you belong to. Discern!

Lynne Green | 29 May 2015  

How is your question relevant, John? The proposed legislation being put forward by the government is about withdrawing citizenship, not about granting citizenship.

Ginger Meggs | 01 June 2015  

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