Boundless plains to share?
The government's assault on citizenship

When the Abbott government changed the “Department of Immigration and Citizenship” to “the Department of Immigration and Border Protection” immediately after last year’s election, it signalled a change not only to the regulation of pathways into Australia, but more fundamentally to what it means to be Australian at all. In previous incarnations of the department’s name, “Citizenship”, and before that “Multicultural and Indigenous Affairs”, indicated that the department was concerned with the core characteristics of membership and belonging in the community and not solely with keeping out strangers.

It’s not surprising, then, that the thrust of the government’s citizenship bill is to tighten the requirements for citizenship. There is a discernable shift in the role of citizenship: from signifying inclusion in the political community to emphasising the barriers to joining it.

There are two pathways to citizenship. Some people become citizens automatically as a result of their original and ongoing connection to Australia through some combination of birth, ancestry and residence. Others become citizens through conferral of citizenship after a period of residence, typically four years. Despite there being two pathways to citizenship, there is a single citizenship in Australia, with the same rights and duties. The primary benefit of citizenship is security of residence. Citizenship cannot be revoked arbitrarily in a way that would either leave a person stateless or force them to rely on the protection of another country.

Until 1986, as in America, birth was sufficient for automatic citizenship, regardless of the citizenship status of a child’s parents. The law was then changed so that a person with foreign parents was granted citizenship only if they were “ordinarily resident in Australia” throughout a period of ten years beginning on the day the person was born. The current bill goes further, removing automatic citizenship from a person who, at any time in the first ten years of their life after being born in Australia, was an “unlawful non-citizen” or was the child of an “unlawful non-citizen”.

These changes to automatic citizenship raise a fundamental philosophical question: at what point does a person’s connection to a country become irrevocable? Can a child who has lived in Australia for the first ten years of their life, and whose whole social, cultural and educational experience is exclusively Australian, be denied citizenship because of the immigration status of their parents? This philosophical question has an unresolved constitutional dimension: does the parliament even have the power to deny citizenship to a person in these circumstances?

According to the explanatory memorandum accompanying the bill, the change is aimed at illegal immigrants who have children in Australia, and manage to avoid the authorities until their children turn ten. In practice, illegal immigrants with citizen children can still be removed. They then face the difficult decision of whether to take their children with them, almost certainly to a place of far fewer educational and other opportunities, and possibly much more dangerous. As citizens, the children have a right of return to Australia at any time without their parents, and may hope to sponsor their parents on a family reunion visa in the future. The main constraint on the government enforcing removal under these circumstances is the International Convention on the Rights of the Child, which requires the government to take into account the “best interests of the child” in any removal decision. But the convention hasn’t prevented removals from taking place to date.

There is another significant group affected by the changes to automatic citizenship – children born in Australia to asylum seekers who arrived by boat. There are about 100 such cases in Australia at the present time. Baby Ferouz is a typical example. If parents of these children remain in Australia for ten years either on permanent or temporary protection visas, or even on bridging visas while awaiting the resolution of their claims for asylum, then under the current law the children are automatically citizens, but under the amendments they are not. If their parents’ application for protection ultimately fails after ten years, and they are subsequently removed, the children will have no membership status in Australia to facilitate a subsequent return.

The bill also tightens the criteria for citizenship by conferral, and broadens the grounds on which conferred citizenship can be revoked. For example, the bill makes the criminal record of minors relevant to their application for citizenship. In discussing this change with me in Senate committee hearings last month, National Party senator Barry O’Sullivan suggested that surely we would not want to grant citizenship to a 16-year-old who had grown up in Australia, fought for ISIS overseas and beheaded an Australian? Perhaps not, but that’s asking the wrong question. The question that matters is whether they are properly described as Australian. Is it to Australia that they owe their allegiance and can demand rights? Is not this young terrorist, born and bred in Australia, our responsibility, to discipline, punish and rehabilitate? If not ours, then whose?

There is also a worrying expansion of the circumstances in which the Immigration Minister can revoke someone’s citizenship. Under the current law, revocation is limited to fraud in the application process, or to the revelation of serious criminal conduct that had been committed prior to the citizenship application but only prosecuted afterwards. The new bill extends the reach of revocation to fraud in relation to a person’s visa application many years earlier – and not just to offences of fraud as determined by a court, but to any fraud, committed by not just the applicant but by anybody. This expansion begins to have serious implications for the security of citizenship.

Citizenship is not just a privilege, but is an indicator of membership status in the community.  The preamble to the Australian Citizenship Act articulates this well: citizenship is “a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity”. We should, as a rule, encourage Australian residents to become citizens, to develop this common bond.

There is an important distinction to be maintained between migration and citizenship. Migration is the point at which people with no necessary connections to Australia are granted permission to enter and reside in Australia as visitors or workers. By the time residents apply for citizenship they have a strong connection to Australia. In determining eligibility for citizenship, the focus needs to be on this connection, and not on a person’s popularity, contribution to the economy, or even strength of character.

Alex Reilly

Alex Reilly is the Director of the Public Law and Policy Research Unit at the University of Adelaide. He teaches and researches in migration law and policy, constitutional law, legal theory, and Indigenous legal issues. Alex is an associate of the Australian Population and Migration Research Centre, and a member of the Work and Employment Regulation research specialisation in the Adelaide Law School.

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